tice, have perpetrated the unparalleled atrocity of imposing upon the unfortunate people who have been robbed of their abutting lots a personal liability for the excess of the assessments over the value of the lots. This constitutes an iniquitous and impuIdent defiance of all constitutional rights. People living on a modest street, with little need of a pavement, and less ability to pay for it, have been compelled to submit to have the pavement made and then to have their property sold to pay the assessments for it, merely because the pavement was demanded for the benefit of the business portion, of the town or for the profit of paving companies.

The assumption that special benefits to abutting lots must necessarily equal the total cost of a street pavement is at the bottom of all these front-foot assessments. But that assumption is gratuitous and false. The assessment may, and sometimes does, equal, and even exceed, the sum total of special benefits and the entire original value of the lot in addition. Such unconstitutional outrages could never flourish long if perpetrated on men who were able to fight for their rights. But they have usually fallen upon humble peopie who had bought lowpriced lots in the mistaken faith that their property rights wouid be protected. This rank system of official robbery that has flourished through the tyranny or corruption of the municipal officers must now face the doctrine of the United States Supreme Court, that assessments for public improvements in substantial excess of special benefits are unconstitutional. Or that judicial rock this system of confiscation by assessment must split. The true rule is plain. Assessments must be limited to special benefits received. If the benefits to the property to be assessed are less than the cost of the improvement, the balance of the cost must be paid by the general public.-Case and Com

ment.

Commonwealth vs. P. J. McLaughlin.

Quarter Sessions of Lackawanna County, No. 369, February Sessions, 1897. Verdict-Costs-Taxation.

A was tried upon two indictments jointly, one for selling liquor on Sunday and one for selling to minors.

The jury found the defendant not guilty under the first indictment, but directed that he pay the costs, He was acquitted also under the second

and the costs divided between the defendant and the prosecutrix. The prosecutrix filed her witness bill in the case in which the costs were put wholly upon the defendant. To this the defendant excepted on the ground that certain of the witnesses were material to both cases, and the clerk taxed one-half the fees due said witnesses to one case and one-half to the other. Upon an appeal to re-tax the costs, Held, that the Commonwealth having elected to bring both cases against the defendant into one prosecution, she had the right to elect as to which case the costs shall be taxed in. Appeal from retaxation of costs.

W. H. STANTON, for appeal.

O'BRIEN & KELLY, contra.

ARCHBALD, P. J., March 14th, 1898.-The verdict in this case was not guilty but that the defendant pay the costs. As the evidence ought to have convicted him beyond a question, he has gotten off contrary to his deserts. In the case where he was charged with selling to minors tried at the same time and by the same jury, he was also acquitted and the costs divided between himself and the prosecutrix, Mrs. Shaw. The present controversy arises out of the fact of there having been a joint trial and common witnesses, both indictments being sustained practically by the same evidence.

The prosecutrix filed her witness bill in the case in which the costs were put wholly upon the defendant. To this exception was taken and the clerk, undertaking to readjust them, taxed one-half the fees due to certain of the witnesses to one case and one-half to the other on the ground that they were material witnesses in both. The fees of certain others were transferred entirely to the case in which the costs were divided, because of their being witnesses in that case alone. This result was reached in part after consulting with the writer who tried the case and after looking into the notes of testimony taken by him at the time. Upon full consideration, however, I am satisfied that a mistake has been made, the responsibility for which in large part I will assume.

The case at its inception, as appears by the transcript of the justice, was substantially a charge of selling liquor on Sunday; the alleged selling to minors was largely an incident; that is to say, the sales made on Sunday were made to minors and hence both offences were involved, but the most prominent was the selling on Sunday. When the case came up for trial on the

two indictments, the same relative importance continued, as is, in fact, shown in the two different verdicts of the jury. Attention was principally directed to the Sunday case and all the evidence bore upon it, although some bore also on the other. It is a mistake to suppose that Mrs. Davis and her children were witnesses only in the charge of selling to minors. The prosecutrix had evidently been seriously misled though without fault on her part as to what they would swear to, but they were called to show the purchase of liquor on Sunday like the rest. The two children were those referred to by some of the witnesses when they said they had seen children going back and forth from the place on Sunday with pails of beer.

The case which is presented then is this: All these witnesses, being material to the one indictment, ought a part of the costs of their attendance be thrown over on the other simply because their testimony bore also upon that? It seems to me not. All the costs so made are legitimate to the case in which they were filed and taxed at the start, and it is of no importance that they might have been taxed in part in some other. The Commonwealth has elected to bring them into the one prosecution, and they are to be treated as costs of that case accordingly. It has been held that an election is open to a party in a civil action as to which case he will tax his costs in, where they are taxable in either of two tried at the same time: Horner vs. Harrington, 6 Watts 331; Delaney vs. Keys, Brightly's Costs, 291: and that a witness subpoenaed by both sides may elect which party he will hold; Commonwealth vs. Cousins, 1 Ash 265. Why then may not the Commonwealth elect in a case like this? This election has been made, be it observed, not by the prosecutrix alone, but by the act of the district attorney also who has not only approved the bill made out by Mrs. Shaw, but has himself brought in a bill and had it taxed for some of the witnesses omitted by her. These bills stand, therefore, as the costs of this particular case with the direct sanction of the representative of the Commonwealth, and, we think, under all the circumstances, they should not be disturbed. Had the defendant been convicted on this evidence, he could not have complained at its all being taxed up against him; neither can he because he has been let off with something less.

The appeal is sustained, the retaxation is overruled, and

the bills on the part of the Commonwealth are directed to be taxed as originally filed in No. 365, February Sessions, 1897.

William De Bourbon Heft, Alleged Lunatic.

Common Pleas No. 1, Philadelphia County, June T., 1898, No. 1262. Lunacy-Parties entitled to except to commissioner's finding-Practice,C. P.

A niece who is next of kin to a lunatic, under the Act of 1836, would have the right to petition on the ground of relationship and possible interest in the lunatic's interest, and, under the Act of June 10, 1897, P. L. 138, she is to be considered a person aggrieved, and as such entitled to except to the finding of a commission in lunacy.

Lunacy-Practice, C. P.-Inadequate finding as to fact of lunacy.

An inquest should find the fact of lunacy distinctly and directly. It should not be a finding by indirection, as is the case where the finding is couched in the following words: "That he (the alleged lunatic) is by reason of lunacy incapable of managing his estate and is wasting and destroying the same."

Lunacy-Inquisition defective in not finding amount and disposition of

property.

An inquisition is defective and will be set aside when it appears that it does not set forth the lands and tenements, etc., of which the alleged lunatic was siezed, possessed of, or entitled to, at the time of his becoming a lunatic, and the value thereof, and when it fails to find whether the alleged lunatic has aliened or disposed of his lands, tenements or chattles, or any part thereof, and, if so, to whom.

Lunacy-Weak-mindedness distinguished.

It is not error for an inquisition not to base the fact and date of lunacy upon a condition of being "childish," "weak-minded" or imbecile," but to limit it to a period when the disease, evidently progressing from weakness to worse, had culminated in undeniable lunacy.

Rule to show cause why the inquisition filed should not be set aside, dismissed and stricken from the record.

H. H. PIGOTT and A. S. L. SHIELDS, for petitioner.

BEITLER, J., Feb. 4, 1899.-On Sept. 6, 1898, a petition was filed by Mary Heft, asking for a commission to inquire whether William De Bourbon Heft is or is not a lunatic. The court appointed a commissioner; he, with an inquest duly summoned, proceeded with the case. Considerable testimony was taken, and on Dec. 24, 1898, the finding was filed. Four exceptions thereto were filed by Mrs. Katie M. Smith, next of kin.

The right to file these exceptions, denied in In re Weaver, 116 Pa. 225, was, after that decision, given by the Act of June 10, 1897, P. L. 138, which enacted that the testimony in these

cases shall be filed, and upon exceptions thereto the court shall examine the testimony "and dismiss all the proceedings thereunder whenever sufficient exceptions thereto are sustained."

It is under this Act that the four exceptions have been filed. We have, in obedience to the provisions of the Act, carefully examined the testimony taken.

The petitioner contends that Mrs. Katie M. Smith has no right to file exceptions. The Act does not provide who may and who may not exercise this right; it merely directs the courts to examine the testimony "whenever exceptions thereto have been filed." It would seem, however, that that duty ought not to be cast upon the court at the whim of a mere stranger.

In the case before us the exceptant is related to the alleged lunatic; she is his niece. Mr. Heft has no children; he was married, but divorced from his wife; he has two aunts, Mary Heft, the petitioner, and Louisa Heft. By the will of his father, he takes the income for life of about $270,000 of personal and real estate. The will as to this trust provides: "But if my said son shall die intestate and without lawful issue him surviving, then I order and direct my said trustees to grant, assign, convey and pay over the said one-half of my said residuary estate unto my dear sisters," etc.

Mr. Heft owns personal property amounting to about $25,000 and the house in which he lives, which is assessed at $45,000. He is thirty-seven years old. The exceptant is his next of kin. Should he be decreed to be a lunatic, should he die without recovering his reason, and meanwhile retain his money and property, she would, if he dies intestate, inherit as his next of kin. Her participation in his estate may, however, be defeated. He may recover his reason and marry, or make a will, or engage in business and lose all he has; he may have made a will while mentally sound; his property may even be swept away though he remain a lunatic; he may outlive the exceptant. Between her and the enjoyment of his property are many chances. The petitioner contends that the exceptant is not a "person aggrieved" within the meaning of the Act of May 8, 1874, P. L. 122, giving to such a person the right to a traverse, and that the right to file exceptions given by the Act of 1897 should be limited to "persons aggrieved."

The exceptant's relationship and expectancies have been