sales, holding a license issued to him by the treasurer of the county, substantially in the following words:

COMMONWEALTH OF PENNSYLVANIA,

Warren County.

To all persons to whom these presents shall come: Be it known, that Henry Flacke, of Warren, has paid me for the use of the Commonwealth fifty dollars, which entitles him to bottle cider, perry, ale, porter, or beer, and sell the same by the bottle, or domestic wines or cider by the gallon, for one year from November 23, 1881, to November 23, 1882, agreeably to the Act of Assembly in such cases made and provided.

IN WITNESS WHEREOF, I hereunto set my hand and fix my official seal, at Warren, this 23d day of November, A. D. 1881. F. M. KNAPP, Treasurer.

Treasurer's fees, 25. Appraiser's fees, 50.

The defendant admits that the pint and quart bottles sold singly to purchasers were of the sizes used by him in his bottling business, that the defendant was not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, oysterhouse or cellar, restaurant or place of amusement, entertainment, or refreshment, and that the sales, as made by the defendant, were only of beer and ale, by the single bottle and case, and not to be drank on the defendant's premises, nor at any place provided by him for that purpose.

Under the admitted facts, it becomes a question of law whether the defendant is or is not guilty of the offense of selling malt or brewed liquors without a license so to do, and it is the duty of the court to advise you on this question.

By the thirty-second section of the Act of Assembly, regulating the sale of intoxicating liquors, passed the 31st of March, 1855, it is provided "that no person pursuing exclusively the business of bottler of cider, perry, ale, porter, or beer, and not at the same time following or engaging in any way in the business of keeping any hotel, inn, or tavern, restaurant, oyster-house, or cellar, or place of entertainment, amusement, or refreshment, shall be required to take out a license under the provisions of this law."

By a supplement to the act of 1856, passed on the 20th of April, 1858, it is provided "that manufacturers and producers of cider and domestic wines, and bottlers of cider, perry, ale, porter, or beer, not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, oyster-house, or cellar, restaurant or place of amusement, entertainment, or refreshment, shall be allowed to sell the same by the bottle, or domestic wines and cider by the gallon, without taking out license."

Under the act of 1856, before referred to, it is provided "that such persons," that is, bottlers of cider, perry, ale, porter, or beer, "shall not sell or deliver said cider, perry, ale, porter, or beer in less quantities than a dozen bottles at one time, nor permit any of said liquors to be drank upon the premises occupied in said business."

You will notice that, by the act of 1858, the bottlers shall be allowed to sell by the bottle without taking out a license.

Next in order comes the act of 1867, which provides "that if any person, after the passage of this act, shall sell spirituous or vinous liquors, domestic wines, malt or brewed liquors, without having obtained a license authorizing him so to do, such persons shall, on conviction in the Court of Quarter Sessions, be fined" so and so.

In our view of the law, this act is entirely repugnant to the provisions of the act of 1858, because, by the act of 1858, bottlers of brewed and malt liquors were entitled to sell without any license. The act of 1867 provides that license shall first be obtained in order to entitle a party to sell malt or brewed liquors.

We next come to the act of 1875, which provides in the second section "that licenses for sales of liquors, when not otherwise provided for by special law, may be granted by the Court of Quarter Sessions of the proper county, at the first or second session in each year, and shall be for one year."

Now, unless there is a special provision in the law for the granting of licenses to bottlers to which attention has not been called, we take it that the licenses must be granted by the court, as is provided by this section of the act of 1875.

Section 4 of the act of 1875 provides "that any sale made of vinous, spirituous, malt, or brewed liquors, or any admixture

thereof, contrary to the provisions of this law, shall be taken to be a misdemeanor, and upon the conviction of the offense in the Court of Quarter Sessions of the Peace of any city or county, the person so offending shall be sentenced to pay a fine," etc. From the examination of the acts referred to, we are of the opinion that the license issued by the treasurer to the defendant as a bottler did not, and does not, authorize him to make sale of malt and brewed liquors by the single pint and quart bottle, as desired by the purchasers, and that in so doing he is guilty as charged in the indictment with selling malt and brewed liquors without license. We are strengthened in this conclusion by the consideration of the extreme care taken by the Legislature, in guarding the public against the abuses and dangers incident to the unrestricted retail traffic in malt and brewed, as well as spirituous liquors. The applicant for an eating-house or restaurant license to sell malt and brewed liquors, must be a citizen of the United States. He must give notice of his application. He must come into court endorsed by twelve of his fellow-citizens, as a man of temperate habits, and of good moral character. must appear by certificate that such license is necessary, and before the license is granted, he must give bond with sureties conditioned for the faithful observance of the law regulating the sale of this kind of liquor. But if the law is, as claimed by the counsel for the defendant in this case, correct, then any and every person, citizen and non-citizen, temperate or intemperate, honest or dishonest, may engage in the business of selling malt and brewed liquors by the drink, simply by paying to the treasurer the sum of fifty dollars, provided only that the drink shall be furnished in a bottle instead of a glass, and that it shall be drank outside the premises of the vendor instead of at his counter or table.

We think that such is not the law, and say to you that, under the admitted facts of the case, the defendant is guilty as charged in the fourth count of the indictment.

Defendant's point answered in the negative.

Defendant's counsel excepts to the charge of the court, and answers to point.

PER CURIAM-We concur in the correctness of the law as

declared in the charge of the court. The facts are unquestioned. Therefore, on the opinion of the learned Judge, judgment affirmed.

Court of Common Pleas of Luzerne County.

IN RE INSOLVENCY OF DANIEL SULLIVAN et al.

A defendant sentenced to pay a fine and costs cannot apply for a discharge under the insolvent laws until after he has been in actual confinement for three months. But if the fine is under fifteen dollars, he may be discharged from confinement after an imprisonment of thirty days.

The opinion of the court was delivered January 14, 1884, by

RICE, P. J.-The defendants were each sentenced to pay a fine of two dollars and the costs, and to make restitution, on an indictment for forcible entry and detainer. They now propose to pay the fines, and ask for an immediate discharge under the insolvent law. This we have no authority to direct. The 47th section of the act of June 16th, 1836 (P. L. 740, P. D. 784, pl. 56) forbids it. The language is, "That where such persons shall have been sentenced to pay a fine. . he shall not be entitled to make such application until after he shall have been in actual confinement in pursuance of such sentence for a period not less than three months." It has recently been held that, where a party has been sentenced to pay costs only, he may apply at once for a discharge under the insolvent laws. Commonwealth v. Trout, 12 Luz. Leg. Reg. 196, 2 Kulp 377. However that may be, and we are not at present called upon to adopt or reject the ruling, the case of a person sentenced to pay a fine is quite different, and rests upon the unambiguous terms of the act of 1836 above quoted. Under this act, and the construction which the courts have given to it, the petitioners cannot apply for a discharge under the insolvent laws until after they have been in actual confinement for three months; the fines, however, being under fifteen dollars, they will be entitled, under the 48th section of the same act, to be discharged from confinement, after an imprisonment of thirty days, provided a non-compliance

with the sentence as to restitution does not stand in the way. (See County of Schuylkill v. Reifsnyder, 10 Wr. 450, and cases there cited.)

For these reasons, the applications for discharge from custody are for the present refused.

Court of Common Pleas of Luzerne County.

WILLIAM H. EVERETT, Executor, v. PATRICK COX.

1. Where plaintiff in judgment is dead, defendant cannot be a witness in proceeding to have judgment opened, except as to transaction after the plaintiff's death with the administrator.

2. Outstanding title under which no claim has ever been made, is no ground for opening judgment for purchase money, there being no evidence of fraud or surprise. In such case, the defendant must resort to his action on the covenants in his deed.

Rule to show cause why judgment shall not be opened, &c. The opinion of the court was delivered April 25, 1881, by

RICE, P. J.-I. It is very clear that the defendant is not a competent witness to prove declarations made by the deceased plaintiff in his life time, and therefore, so far as his equity to have this judgment opened depends on such testimony alone, it must fail.

2. But his testimony as to payments made on the judgment to the executor since the death of Peter Everett is competent under the act of April 9th, 1870, P. L. 44, P. D. 625, pl. 20, and to the extent of such alleged payments the judgment must be opened.

3. The defendant claims that there is an ontstanding title to one-sixth of the premises for the purchase money of which this note was given. He is in possession, however; there does not appear to have been any effort to evict him, and it does not appear that he did not know of the alleged defect when he took his deed, with covenant of general warranty, and gave this judgment note. Further, the evidence of an outstanding title is very unsatisfactory. But if there be a defect, or outstanding title,