the defendant going through between the kilns; back into the field and around behind the kilns, and passed them and came out in the road below the kilns: that when they separated Koons passed down in front of the kilns along the road and joined Sminkey below the kilns; that in a few minutes they came back up the road to the kilns and stood and talked with several of the men for some minutes and then passed on south towards Philadelphia street; that Koons was well known to the men at the brickyard and had worked in a brickyard for several years with Seiler who was the Commonwealth's principal witness. The witness described the clothing of each and said that Koons had a newspaper folded up and sticking about eight inches out of the side pocket of his sack coat.

The testimony further showed that at least one of the kilns was burning that night and that it cast a bright light across the road in front of the kilns and over into the field on the opposite side of the road. That shortly after Koons and the defendant left the kilns the prosecutor came along going in the opposite direction. Almost immediately after the prosecutor passed the kilns two men appeared in the field across from the kilns, ten or twelve feet from the fence, going at a rapid walk in the same direction as the prosecutor, and one of them had a newspaper sticking out of his pocket. When they got below the kilns they got out into the road and followed the prosecutor down the road. These circumstances aroused the suspicions of the men at the kilns who saw it and they went out into the road and stood listening, and in a very few moments they heard an outcry and running down the road found the prosecutor lying bruised, bleeding and robbed in the middle of the road, and they also heard two men over in a plowed field on the west side of the road running towards the city. Koons and the defendant were arrested and charged with the crime. They had a hearing at which the witnesses were heard, among others, Seiler. Afterwards, and before the trial, Koons died, and the defendant was tried alone for the offense.

At the trial Seiler testified that he identified Koons as one of the men in the field, and it was left to the jury to say whether from all these circumstances the defendant was not the other man and they promptly so found. It was contended at the trial that Seiler testified at the hearing before the alderman that he

did not identify either of the men in the field that night, and he said on the trial that he did not recollect whether he had so testified at the hearing, but he did not think he had, and he persisted in the statement at the trial that Koons was one of the men and that he identified him at the time.

One witness, Ethen Frey, testified that he thought Seiler said at the hearing he did not recognize the men in the field that night. The defense was an alibi, but it was necessarily feebly sustained for the reason that the defendant did not deny his presence at the brick kiln only a short time-certainly not over fifteen minutes-before the offense was committed.

I said to the jury in view of this circumstance that little. reliance should be placed in the testimony of witnesses as to the exact time when the defendant was said to have been on the porch in Freystown some four or five squares away; that no witness could determine the time so closely unless he had his watch in his hand and this none of them pretended to have had; however, I left the question of the alibi to the jury and they found against it.. I said to the jury that the crucial point of the case was whether Koons was one of the men in the field that night; that they must believe this beyond all reasonable doubt, and they must go one step further; they must be equally certain that the defendant was the other and this must be found from the fact of Koons presence there; and all the other surrounding circumstances; and that these circumstances must point to the defendant and exclude all other reasonable hypotheses.

The jury was fully and carefully and cautiously instructed in favor of the defendant, and there was nothing in the charge to bewilder or mislead them. The district attorney, in his adGress to the jury, commented upon the fact that the defendant had not testified as to any separation from Koons after they left the brick kiln. The defendant's counsel objected to this line of argument in view of the fact that the defendant had shown that he was on a porch in Freystown some four or more squares away about the time of the commission of the offence, and that Koons was not then with him. I corrected the statement of the district attorney by saying that the defendant had not shown when or where he separated from Koons. The distinction was plain and readily understood and I can not believe that the jury

were misled or could have been misled by the statement objected to, and corrected as it was immediately after it was made.

The principal reason assigned for the new trial and the only one worthy of serious consideration is that the defendant was surprised by the testimony of Seiler who at the trial swore positively that he identified Koons as one of the men in the field. As stated before, this was the most important point in the evidence of the Commonwealth. Without it, the defendant could not have been convicted—the most important link in the chain of circumstances would have been omitted. It must be recollected that it was not the defendant who was identified even if this evidence is believed; it was his companion, and the jury were left to infer that the other was the defendant from the fact that the defendant was immediately before that in the company of Koons, and that they were acting suspiciously. But of course if Koons was not identified then there would be no basis for inferring that the defendant was the other man. Seiler was a particularly bright and intelligent witness. He testified at the trial as stated: "Don't think I said at alderman's office at the hearing that I could not recognize either of the men in the field that night." He would not be positive about it. The defendant asserts that he was surprised therefore when on the, trial he swore positively that he did identify Koons, and that he was not prepared to meet so serious a change in the testimony. The defendant at the trial called one witness, Ethen Frey, who testified that Seiler swore at the hearing that he did not recognize either of the men after they left the kiln that night and consequently not in the field. The defendant himself testified to substantially the same thing.

In support of the allegation of surprise he offers now the testimony of three other witnesses, Jacob Stager, Esq., the alderman before whom the hearing was had, Michael Lauber, who testifies that he was at Norfolk, Va., at the time of the trial, and Peter Zudrell, all of whom testify that Seiler testified at the hearing that he did not recognize either of the two men in the field.

Had the testimony been submitted it might have produced a different verdict and where the charge is so serious as here it would seem to be doing scanty justice not to allow an apportunity for its presentation.

Where it is clearly shown, as here, that a party may have been surprised by so material a change in the testimony of a chief, not to say only, witness, to a crucial fact of the Commonwealth's case, and where the defendant contends and supports that contention by the evidence of several other respectable witnesses, that he heard the same witness testify differently before on the same subject, a new trial ought to be granted. To allow a new trial under such circumstances is no innovation: Struthers vs. Wagner, 6 Phila. 262; Betts vs. Hayward, 7 Phila. 158; Martin vs. Marvine, 1 Phila. 280.

The rule for a new trial is made absolute.-York Legal Record.

Wolf and Warren, Executors vs. The Bonta Plate Glass Co. Common Pleas of Lackawanna County, No. 212 May Term, 1897. Sheriff's Sale-Patent Right-Franchises-Act of April 8, 1870.

A Patent right cannot be sold on a common law execution. Neither can it be sold on a fi. fa. issued under the Act of April 8, 1870, against the rights and franchises of a corporation.

Flagg vs. Farnsworth 12 W. N. C., 500, and Erie Wringer Co. vs National Wringer Co., 63 Fed. Rep. 248, dissented from.

An assignment in writing from the owner of the patent right in conformity with the laws of congress, is essential to transfer the title, and no proceeding to sell the same can be effective, except where that can be ordered and enforced.

The proper remedy to seize and sell a patent right, is by a creditor's bill. If the state court in Pennsylvania will not take jurisdiction the federal courts at least are open, if the amount in controversy is large enough. Rule to set aside Sheriff's sale.

W. H. STANTON, for Rule.

WILLARD, WARREN & KNAPP, contra.

ARCHBALD, P. J., March 13, 1899.-After selling out all the other property of the defendant company, even to the lease hold on which its manufacturing plant is located, the plaintiffs, on an alias fi. fa., have levied on and sold the interest of the company in certain enumerated letters patent, issued by the federal government, which it holds, and the question is as to the validity of that sale. In Stevens vs. Cady, 14 Howard 528, a copper plate engraving which had been copyrighted in conformity with the acts of congress, was sold on execution. The defendant, becoming the purchaser, claimed the right by virtue

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of the sale to print and publish other copies of the engraving, and a bill was thereupon brought by the owner of the copyright to restrain him from doing so. In sustaining the bill, it is said by Nelson, J.: "The copper plate engraving, like any other tangible personal property, is the suject of seizure and sale on execution, and the title passes to the purchaser the same as if made at a private sale. But the incorporeal right secured by the statute to the author to multiply copies of the map by the use of the plate, being intangible and resting altogether in grant, is not the subject of seizure or sale by means of this process—— certainly not at common law. No doubt the property may be reached by a creditor's bill and be applied to the payment of the debts of the author the same as stock of the debtor is reached and applied, the court compelling a transfer and sale of the stock for the benefit of creditors. *** But in case of such remedy, we suppose it would be necessary for the court to compel a transfer to the purchaser in conformity with the requirements of the copyright act in order to invest him with a complete transfer of the property. ***** An assignment **that would vest the assignee with the property of the copyright according to the act of congress must be in writing and signed in the presence of two witnesses, and it may, I think, well be doubted whether a transfer even by a sale under a decree of a court of chancery would pass the title so as to protect the purchaser unless by a conveyance in conformity with this requirement." This was followed in Stevens vs. Gladding, 17 Howard 447, which was a branch of the same case, where it was further said by Curtis, J., "There would certainly be great difficulty in assenting to the proposition that patent and copyrights held under the laws of the United States are subject to seizure and sale on execution. Not to repeat what is said on this subject in 14 Howard 531, it may be added that these incorporeal rights do not exist in any particular state or district; they are coextensive with the United States. There is nothing in any act of congress or in the nature of the rights themselves to give them locality anywhere, so as to subject them to the process of courts having jurisdiction limited by the lines of states and districts. That an execution out of the Court of Common Pleas for the County of Bristol in the State of Massachusetts, can be levied on an incorporeal right subsisting in