of the alleged commission of the offense for | fendant brings error. Reversed, and plainwhich he is being tried, and after prosecutrix tiff remanded to custody.

In this case the subsequent acts occurred as follows: The first one some three days after the act charged in the indictment; the second, an attempt made some two weeks later; the third occurred about a year after, and the fourth about 14 months. But it will be remembered from the record that prosecutrix herself testified as follows:

“Q. All this time your father never bothered you? A. Yes, he told me, but then I would not do it; I got away from him."

This simple-minded, inexperienced girl, with her very limited knowledge of English, told a story, corroborated by her sisters, which must have very strongly convinced the court and jury of the truth of her testimony. And, if she is to be believed at all, and the jury and the court below most evidently did believe her, there was an illicit, bestial sexual relation existing between her and her father covering a period of several years. And that is only a part of the story, for the record discloses that the same relation was at least attempted by him toward his other daughters, and that this was also continuous, though not all the while successful.

R. C. Cole, City Sol., and John E. Priddy, both of Findlay, for plaintiff in error. C. B. Dwiggins and Franks & Franks, all of Findlay, for defendant in error.

PER CURIAM. This was a proceeding in Hancock county by H. A. Sideman against J. habeas corpus brought in the circuit court of H. Crawford, as chief of police of the city of Findlay. The case was submitted to the court upon the petition, the return or answer of the defendant, and an agreed statement of facts. H. A. Sideman was a resident of the city of Chicago, and an itinerant vendor of goods and merchandise. In compliance with the provisions of sections 6357 to 6359, General Code, he procured from the Secretary of State, on the 17th day of May, 1912, a license authorizing him to do business in this state as such itinerant vendor for the period of one year from said date. On May 23, 1912, he presented his license to the mayor of the city of Findlay and requested an issuance to him of a local license under the provisions of section 6364, General Code. There was no ordinance of the city, in force, providing for the payment of a local license fee for such purpose, and the mayor, acting under and by virtue of the provisions of the section last mentioned, proposed and offered to issue a local license authorizing Sideman to do business as such itinerant vendor in the city of Findlay, upon the payment by him of a local license fee of $25 per day, but the mayor refused to issue a local license for any less sum. Sideman refused to pay such local license fee, and on the 27th day of May, 1912, he proceeded to offer for sale and sold certain goods and merchandise without having procured a local NEW-license as an itinerant vendor. On the same day he was arrested upon a warrant issued upon an affidavit charging him with having on the 27th day of May, 1912, sold goods as an itinerant vendor without a local

We hold that this evidence was competent as it was qualified by the trial court, and that the defendant was guilty beyond a reasonable doubt, and that therefore the judgment of the Court of Appeals should be reversed and the judgment of the court of common pleas affirmed.

Judgment of the Court of Appeals reversed and that of the common pleas affirmed.

SHAUCK, JOHNSON, DONAHUE, MAN, and WILKIN, JJ., concur.

(89 Ohio St. 260)

CRAWFORD, Chief of Police, v. SIDEMAN. license therefor. He was found guilty of this

(No. 13690.)

(Supreme Court of Ohio. Jan. 20, 1914)

(Syllabus by the Court.) LICENSES (§§ 7, 29*)—AMOUNT OF FEE-DETERMINATION-VALIDITY OF STATUTE. Under the provisions of section 6364, General Code, in the absence of an ordinance of the municipality providing therefor, the clerk or mayor of the municipality may determine a reasonable amount to be paid by an itinerant vendor as a local license fee, and the granting of this right to the clerk or mayor is a legal exercise of legislative power and not repugnant to the Constitution.

charge by the judgment of the mayor and sentenced to pay a fine and costs. He prosecuted error from this judgment to the court of common pleas, which judgment was afterwards reversed; but while the proceeding in error was pending in the common pleas court, Sideman, on the 1st day of June, without having made further or additional application to the mayor, other than that hereinbefore mentioned, and without having procured an itinerant vendor's local license, again proceeded to and did sell goods and merchandise as an itinerant vendor in the city of Findlay. [Ed. Note. For other cases, see Licenses, On the same day an affidavit was filed by the Cent. Dig. §§ 7-15, 19, 63; Dec. Dig. §§ 7, 29.*] defendant below, J. H. Crawford, charging Error to Circuit Court, Hancock county. Sideman with selling goods as an itinerant Habeas corpus by H. A. Sideman against vendor in the city of Findlay without a liJ. H. Crawford, as Chief of Police of the City cense, upon which affidavit a warrant was of Findlay. Judgment for plaintiff, and de-issued by the mayor to said J. H. Crawford, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

as chief of police, who thereupon arrested | nance, such amount as the clerk or mayor deSideman and confined him in the city prison. At the time of the allowance and issuance of the writ in the proceeding in the circuit court he was, by the said Crawford, so confined and restrained in the city prison.

In his petition, filed in the circuit court, he

termines, and proof of payment of all other lithe clerk shall record such state license, indorse cense fees, legally chargeable upon local sales, upon it the words 'local license fees paid,' and affix his official signature, with the date of such indorsement. He shall then issue a local license

authorizing sales within the limits of such city

or village."

Under the provisions of this section, in the absence of an ordinance providing for a local license fee, the clerk or major of a munici

fix and determine the amount to be paid by an itinerant vendor as a local license fee, and the granting of this right is a valid exercise of legislative power, and is not repugnant to the Constitution of the state. We are unable to say, from the facts as disclosed by the record, that the amount fixed by the mayor in the case at bar was unreasonable, arbitrary, or prohibitive, and in the absence of such facts the presumption obtains that the official performed his legal duty and was free from the abuse of discretion in determining the amount to be paid.

claimed that the demand of the mayor for the payment of a license fee of $25 for each and every day he was proposing to do business as an itinerant vendor was unreason-pality is given the right and has authority to able, arbitrary, and prohibitive, and claimed further that the section (6364, General Code), so far as it purports to confer authority up on the mayors of cities to determine and fix such local license fees, is unconstitutional, inoperative, and void. The circuit court found that there was no ordinance of the city of Findlay fixing the right of the mayor of said city to name the amount of the license, and that the plaintiff should be released, on the ground that there was no ordinance under which the mayor had the right to impose a local license before plaintiff could do business, and that the city council should provide the legislation necessary to make the matter effective. Plaintiff below, H. A. Sideman, by the order of the circuit court, was released and discharged, and the costs taxed against the defendant below, J. H. Crawford, who is here asking for a reversal of the judgment of the circuit court.

Section 6364, General Code, is as follows: "Before selling under a state license, an itinerant vendor shall exhibit it to the clerk or mayor of a municipal corporation where he proposes to make sales. Upon payment to such clerk or mayor of a local license fee, as provided by ordinance, or in the absence of such ordi

The circuit court erred in holding that, in the absence of an ordinance, the mayor had no right to impose a local license fee before plaintiff below could do business as an itinerant vendor, and the judgment of the circuit court is therefore reversed, and the judgment is here rendered for plaintiff in error.

Judgment reversed, and defendant in error remanded to the custody of the chief of police.

NICHOLS, C. J., and DONAHUE, JOHNSON, NEWMAN, WANAMAKER, and WIL KIN, JJ., concur.

Frank L. Polk, Corp. Counsel, of New York City (Terence Farley, of New York City, of July 14, counsel), for appellants. John T. Dooling, Herbert R. Limburg, and Frederick C. Hunter, all of New York City, for respondent.

1. SUBMISSION OF CONTROVERSY (§ 3*)-"AoTION"-MANDAMUS PROCEEDING.

A mandamus proceeding is not an "action" within Code Civ. Proc. § 1279, providing that the parties to a question in difference which might be the subject of an action may agree on a case containing a statement of the facts on which the controversy depends and submit the same to a court of record for determination, etc.; and hence the Appellate Division has no jurisdiction to direct the issuance of a peremptory writ of mandamus on such a submission.

[Ed. Note.-For other cases, see Submission of Controversy, Cent. Dig. 88 4, 5; Dec. Dig. $ 3.*

For other definitions, see Words and Phrases, vol. 1, pp. 128-140; vol. 8, p. 7563.]

2. COURTS (§ 188*)-CITY COURT-JURISDICTION-COUNTIES-STATUTES.

PER CURIAM. [1] The parties to a question in difference may submit it to the court pursuant to section 1279 of the Code of Civil Procedure if it might be the subject of an action. A mandamus proceeding is not an action, and the Appellate Division, therefore, did not have jurisdiction to direct the issuance of a peremptory writ upon the submission of a controversy pursuant to said section. However, this court has jurisdiction to entertain the appeal.

[2] We have examined the question involved because of its public importance, and have reached the conclusion that the order should be reversed, with costs, for the reasons stated in the dissenting opinion of Ingraham, P. J., below, and because the Appellate Division did not have jurisdiction to make it.

Laws 1912, c. 548, creating the county of Bronx out of territory formerly a part of New York county, declaring that the county court within Bronx county should have the jurisdiction exercised by the County Court of Kings county, that the several courts within the county of New York should retain jurisdiction WILLARD BARTLETT, C. J., and WERof all actions commenced prior to January 1, NER, HISCOCK, COLLIN, HOGAN, MIL1914, and that no provision of the act should LER, and CARDOZO, JJ., concur. be construed as affecting, within Bronx county, the jurisdiction of the City Court of the City of New York, did not affect the jurisdiction of the New York City Court as it existed June 6, 1895, there being nothing in the act creating the county of Bronx to repeal Greater New York Charter (Laws 1897, c. 378) § 1345, providing that the city court should be continued and should have the same power and jurisdiction as was then provided by law, etc.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 412, 439, 440, 442, 447, 448, 451, 452, 454, 458, 464, 465, 467, 468; Dec. Dig. § 188.*]

Appeal from Supreme Court, Appellate Division, First Department.

Submission of controversy in a mandamus proceeding to the Appellate Division under Code Civ. Proc., § 1279. From an order of the Appellate Division (157 App. Div. 586, 142 N. Y. Supp. 752), directing the issuance of a peremptory writ of mandamus to defendants, they appeal. Reversed.

The writ required defendants to prepare and publish a notice of the offices for which candidates will be nominated in September, 1913, at the primaries to be held by the political parties in and for the county of Bronx, and to omit from such notice any reference to the office of justice of the City Court of the City of New York; and to furnish official primary ballots, tally sheets, statements of results, and all other election paraphernalia for said primary election in and for the coun

ty of Bronx, and in so doing to omit there

from any reference to the office of justice of the City Court of the City of New York, and to accept and to receive no certificate of nomination for the office of justice of the City Court of the City of New York subscribed or made by electors residing within the county of Bronx.

Order reversed.

(212 N. Y. 299)

In re FARLEY, State Commissioner of Excise. (Court of Appeals of New York. July 14, 1914.)

1. INTOXICATING LIQUORS (§ 108*)-LICENSES

-REVOCATION-PLEADINGS.

Under Liquor Tax Law (Consol. Laws, c. 34) 27, subd. 2, providing that a petition for the revocation of a liquor tax certificate shall state the facts upon which the application is based, a petition upon information and belief is insufficient, but may be supplemented by affidavits annexed thereto and referred to therein, stating the facts positively.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. į 108.*]

2. INTOXICATING LIQUORS (§ 108*)-LICENSES

-REVOCATION-EVIDENCE.

On an application to revoke a liquor tax certificate under Liquor Tax Law (Consol. Laws, c. 34) § 27, subd. 2, only such facts are provable as are fairly called to the attention of the certificate holder by the application, and an occurrence or conversation independent of one alleged may not be proved, but an occurrence or conversation narrated in the application should not be rejected merely because it varies from the application in detail, if it is within the substantial scope of the recitals in the application.

[Ed. Note.-For other cases, see Intoxicating

Liquors, Cent. Dig. §§ 116-118; Dec. Dig. §

108.*]

Hogan and Miller, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Petition by William W. Farley as State Commissioner of Excise, for an order revoking and canceling liquor tax certificate No.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-4%

5109, issued to Guiseppe Teti and transferred | cial Term in this proceeding did come within to Solomon Noar. From an order of the the substantial scope of the particular facts Appellate Division, First Department (157 stated in the application. The ruling of the App. Div. 918, 142 N. Y. Supp. 1117), affirm- court in striking out such evidence was error. ing an order of the Special Term denying a It should have been retained because it was motion to revoke and cancel such certificate, within the general scope of the application, the commissioner appeals. Affirmed. or in any event but an unimportant variance in the detail of the conversation.

Louis M. King, of Schenectady, for appellant. John Bogart, of New York City, for respondent.

CHASE, J. This is a proceeding under Liquor Tax Law, Consol. Laws, c. 34 (section 27, subd. 2), brought to obtain an order revoking and canceling a liquor tax certificate held by the respondent, for permitting the premises described therein to become disorderly. The question whether the respondent permitted the premises described in said certificate to become disorderly was one of fact. It is not claimed that this court can reverse the findings of fact, but it is urged that certain evidence received at the trial was erroneously stricken from the record by the court at Special Term.

The evidence stricken out was not, however, of sufficient weight in connection with the other testimony received to require that the order be reversed because such evidence was not considered by the court at the Special Term upon the determination of the issues, or by the Appellate Division in passing upon the weight of evidence.

The order should be affirmed, with costs.

WILLARD BARTLETT, C. J., and WERNER, HISCOCK, and CARDOZO, JJ., concur. HOGAN and MILLER, JJ., dissent.

Order affirmed.

In re WEBER.
PEOPLE v. WEBER.

1914.)

(212 N. Y. 290)

[1, 2] It is necessary by the express terms of the statute to state in the petition the facts upon which the application for the revocation of the liquor tax certificate is based. (Court of Appeals of New York. A petition upon information and belief is wholly insufficient. Matter of Peck v. Cargill, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888; Matter of Wheaton v. Slattery, 96 App. 'Div. 102, 88 N. Y. Supp. 1074. Such a petition may be supplemented by affidavits annexed thereto and referred to therein, in which the facts upon which the petition is based are positively stated. Matter of Cullinan (Micha Certificate), 76 App. Div. 362, 78 N. Y. Supp. 466, affirmed 173 N. Y. 610, 66 N. E. 1106. The petition including accompanying affidavits, if any, making up the application under the statute must apprise the certificate holder of the facts on which the application is based and evidence can be given upon the trial so far as the facts are fairly called to the attention of the certificate holder by the application, but not otherwise. See Matter of Plass, 71 App. Div. 488, 76 N. Y. Supp. 2, affirmed on opinion below, 175 N. Y. 524, 67 N. E. 1089. Evidence of an occur rence or conversation which is independent of one described or narrated upon knowledge should not be received on the trial of an issue joined by the petition and answer. We do not think, however, that testimony of an occurrence described or of a conversation narrated in an application should be rejected

July 14, BANKRUPTCY (8 421*)-CLAIMS PROVABLE— PENALTIES AND FORFEITURES.

Under Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3444]) § 57j, providing that a debt owing to a state as a penalty or forfeiture shall not be allowed except for the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, an obligation on a forfeited bail bond is not provable in bankruptcy, and is not discharged by the bankrupt's discharge, and hence the bankrupt was not entitled to a cancellation and discharge of record of a judgment on such bail bond under Debtor and Creditor Law (Consol. Laws, c. 12), § 150, providing for the discharge of that he has been discharged from the payment judgments against a bankrupt upon a showing of such judgment, or of the debt upon which it was recovered.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 772–774, 776, 777, 779–781, 783786, 788-790; Dec. Dig. § 421.*]

Appeal from Supreme Court, Appellate Division, First Department.

Application by Joseph L. Weber for an order canceling and discharging of record a judgment rendered against him in favor of the People of the State of New York on a forfeited bail bond. From an order of the Appellate Division, First Department (159 at the trial so long as it is confined generally App. Div. 902, 143 N. Y. Supp. 1149), affirmto the particular facts upon which the appli-ing an order of the Special Term denying a cation is based, and a variance, if any, is motion for an order canceling and dischargof detail and not such as to make the state-ing such judgment, the applicant appeals.

Affirmed.

B. Gerson Oppenheim, of New York City, for appellant. Charles S. Whitman, Dist. Atty., of New York City (Louis Fabricant, of New York City, on the brief), for respondent.

ment of fact in the application misleading. To sustain the admission of testimony it must be within the substantial scope of the recitals in the application. At least the major part of the evidence stricken out at Spe

HISCOCK, J. This action was brought to procure the cancellation of a mortgage for $600,000 held by the defendant Rogers on real estate conveyed by his father to the plaintiff, it being claimed that said mortgage is without consideration, and that it was placed on said premises in violation of the terms of a gift made by the father to plaintiff of said premises, which had been so accepted and acted on by the latter that it would be inequitable to permit such mortgage to stand. The question is whether the [Ed. Note.-For other cases, see Mortgages. complaint alleges facts sufficient to entitle Cent. Dig. §§ 344, 345, 354; Dec. Dig. § 153.*1 it to a judgment canceling said mortgage •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes