Winters, for use, v Cohen.

It appears from the testimony produced on the part of the defendant, that the defendant moved into the property in question on the first day of May, 1920. That they did not have any tenants nor did they lease any part of said house since occupancy; that a Mr. and Mrs. Herbert resided with the defendant temporarily since the last week of July; that Mr. and Mrs. Herbert came to see the defendant and his wife while the defendant's daughter was on a visit and permission was given them to occupy one room, and as this couplt, not being residents of Pittsburgh, were undecided whether they were going to stay in Pittsburgh or go elsewhere, and being good friends of the defendant and his wife, defendant's wife having known the husband since he was a child, insisted upon them staying as their guests pending their decision.

It further appears that while the husband was on the road, he being with a news company on the railroad, his wife did some cooking of her own; that when the husband came home, which was every three or four days, they went out for their meals; that they paid no rent, paid no telephone bills, gas bills, used the furniture of the defendant and had nothing in the defendant's house but suit cases.

It appears from the testimony on the part of the plaintiff that the house was constructed for one family only; that the Herbert's were occupying the second floor and doing light husekeeping, using part of the hall for a kitchen; that complaints were registered by the plaintiff to the defendant about smoke going up through the house and it was not intended for light housekeeping; that by virtue of using the same for light housekeeping the plaintiff was obliged to pay a plumbing bill; that the wife of the defendant ordered wall paper for two rooms on the second floor, for a bed room and kitchen and that she told the paper hanger that she had rented it for light housekeeping. The plaintiff does admit, however, that she did agree to permit the defendant to have a roomer.

From the testimony in this branch of the case, it hinges solely upon a question of fact, whether or not the covnant, "to not sub-let," has been broken.

The credibility of witnesses, is to be considered by the Court, not the conflict of testimony, and, while not to be opened on defendant's testimony alone, when it is contradicted by the plaintiff, yet, where there are corroborating circumstances from which inferences can be drawn corroborating the defendant, it is proper to open the judgment.

Cloud v Markle, 186 Pa., 614.

In cases of this character, we realize should not be permitted to go to the jury unless the lessee has made out a case clear of reasonable doubt. After a careful consideration of the testimony, we are of the opinion, that from the testimony of the defendant, and his witnesses, that he has made out a case lear of reasonable doubt, and, is a matter which should be determined by a jury.

Pawlowska v Polish National Alliance.

Assumpsit- -Beneficial Insurance-
Binding Instructions.

-Statements to Physician-Pleadings

Binding instructions for the beneficiary named in a certifificate of life insurance will be sustained, where the only defense was that the insured made false statements in her application before the examining physician, but where there was no allegation in the affidavit of defense and no facts set up therein or proved by the evidence offered tending to show that the alleged false statements were material to the risk assumed by defendant's certificate.

A fact is material to the risk when, if known to the underwriter, it would have caused him to refuse the risk, or would have been a reason for his demanding a higher premium.

Motion for a New Trial. No. 3064 December Term, 1915. C. P. Fayette County.

George Patterson, for plaintiff.

A. E. Jones, for defendant.

VAN SWEARINGEN, P. J., November 30, 1920.-At the trial we gave binding instructions for the plaintiff for the amount of his claim, to wit, $478.11, and the case is before us now on a motion of defendant for a new trial. Plaintiff's wife, Julia Pawlowska, on August 3, 1914, was admitted to membership in the defendant organization, the Polish National Alliance of the United States of North America in Groupe No. 1393, and received therefrom a benefit certificate, insuring her life in favor of her husband in the sum of $500, subject to the terms and conditions stated in defendant's certificate and constitution, one of the provisions of which was that in case of the death of the insured more than six months and less than nine months after the date of the benefit certificate the beneficiary would be entitled to receive three-fourths only of the amount named in the certificate. The insured died on February 12, 1915, following the birth of a child, and this action was brought to recover the amount alleged to be due the beneficiary.

In the affidavit of defense it was alleged that defendant's constitution, which was a part of the contract between the parties, provides: "No mortuary benefit shall be paid to the beneficiaries of a member after his death, if the member was admitted to the alliance by means of deception, false statements in the application or before the examining physician." It was alleged that Mrs. Pawlowska made false statements in her application before the examining physician in her replies to the following questions: "Q. Is your menstruation normal and regular and has it always been so? A. Yes. Q. Are you pregnant now? A. No." It was alleged in contradiction to her answers that at the time of making her application her menstruation was not normal and regular, and that at the time of her medical examination she was pregnant.

It was conceded by the defendant that the answers to the two questions noted raised the only issue to be tried. There was some evidence offered as to the regularity of Mrs. Pawlowska's menstruation at the time of and prior to her application for membership in the defendant organization, and as to whether or not the child afterwards born was a full-time child. But we gave binding instructions for the plaintiff because there was no allegation in the affidavit of defense that the matter of the regularity of Mrs. Pawlawska's menstruation and the question as to her pregnancy, at the time of her application for membership, were matters material to the risk, which alone would not have made the affidavit of defense sufficient, and because, more particularly, no facts were set up in the affidavit of defense or proved by the evidence offered tending to show that the above questions and answers were material to the risk assumed by defendant's certificate, that is, considered of such importance that the risk would have been refused, or a higher premium demanded, if the truth had been known.

Pawlowska v Polish National Alliance.

In our opinion the case is ruled by McMaffrey v Knights of Columbia, 213 Pa., 609. In that case the Court cites the first section of the act of June 23, 1835, P. L. 134, which provides: "Whenever the application for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentations or untrue statement in such application, made in good faith by the applicant, shall effect a forfeiture or be a ground of defense in any suit trought upon any policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relate to some matter material to the risk." It was said there that a fact is material to the risk when, if known to the underwriter, it would have caused him to refuse the risk, or would have been a reason for his demanding a higher premium. The case was much like the one row before us. It was alleged in the affidavit of defense that the deceased falsely stated that she was not pregnant at the time her application for membership was made. On the contrary the affidavit asserted that she was pregnant, and that a few months afterwards she gave birth to a child, and thereafter died from the effects of illness contracted during the time of her confinement. The affidavit averred merely that her statement that she was not pregnant was material to the risk, but did not set forth any facts to show that this was the case, or that the association would have refused the risk, or increased the premium, if it had known the truth. And it was held that the Court below committed no error in entering judgment for want of a sufficient affidavit of defense. It was in line with the principles of that case that we gave binding instructions for the plaintiff

here.

And now, November 30, 1920, for the reasons stated in the opinion herewith filed, the motion for a new trial is overruled and dismissed and a new trial is refused, and it is ordered that judgment be entered on the verdict upon payment of the jury fee.

Agents

In re Banding Wild Birds.

Appointment-Game Commission-Powers--Scientific Purposes.

The Board of Game Commissioners can appoint and authorize agents to act for the State to band birds for scientific purposes, provided that such birds are not to be kept in captivity or injured.

Your request for an opinion from this department as to whether the Board of Game Commissioners can authorize agents acting for the State to band birds for scientific purposes, under the third clause of Section 3 of the Act of June 7, 1917, P. L. 572, duly received.

The third clause of Section 3 of the Game Law of 1917 reads as follows: "The Game Laws of this Commonwealth shall not be construed to apply * * * to the Board of Game Commissioners, or to its duly authorized agents acting for the State."

In re Banding Wild Birds.

I understand that birds are banded for scientists, and marked in a way not injurious to the birds, stating the day and place where found, and then let go for the purpose of determining the extent of their annual migrations. The birds so marked are not maintained or kept in captivity but immediately liberated after being marked.

Under the above clause of the Act of June 7, 1917, P. L. 572, Section 3, the Board of Game Commissioners are empowered to appoint agents to act for the State, and such agents when duly authorized by the Board of Game Commissioners are not subject to the provisions of the Game Laws.

You are, therefore, advised that the Board of Game Commissioners can appoint and authorize agents to act for the State to band birds for scientific purposes, provided that such birds are not to be kept in captivity or injured. Very truly yours, WILLIAM I. SWOOPE,

Deputy Attorney General.

Commonwealth v Dombek, Appellant.

Criminal Law-Murder-Jurors-Aliens-Qualifications-Voire Dire. An appeal was dismissed and a new trial refused one convicted of first degree murder on the sole ground that one of the jurors was an alien, when defendant had an opportunity to examine the jurors as to their qualifications and on his voire dire the juror was not questioned as to his citizenship.

After an adverse verdict, it was too late to reverse a conviction of first degree murder, when there was nothing to show that defendant had been misled or deceived in accepting one not a citizen of the United States as a juror. This was proper information to be ascertained when the juror was called and sworn on his voire dire.

Appeal. No. 90 October Term, Supreme Court of Pennsylvania.

R. H. Jackson, for appellant.

Harry H. Rowand, District Attorney, and Harry A. Estep, Assistant District Attorney, for appellee.

PER CURIAM, June 26, 1920.-The appellant was convicted of murder of the first degree in the court below, and on this appeal a new trial is asked for solely on the ground that one of the jurors who sat in the case was not a citizen of the United States. It seems that this fact, if it be a fact, was disclosed to the prisoner's counsel some days after the trial. Nothing was before the court below in support of the motion for a new trial on the ground that a juror was an alien except the ex parte affidavit of that juror, and in it he admits that he was not asked whether he was a citizen. An examination of his answers when questioned on his voire dire shows this to be so. Opportunity was given the prisoner to ascertain the qualification of the juror when he was called and sworn on his voire dire, and at that time there might have been disclosed a good cause for challenge; but, without taking advantage of the opportunity to learn all about the juror's qualification to serve, and without having been misled or deceived in accepting him as a juror, it is too late, after an adverse verdict, to ask that the judgment on it be reversed for the reason assigned: Traviss v Com., 106 Pa., 597.

The assignment of error is overruled, the judgment is affirmed and it is ordered that the record be remitted for the purpose of execution.

NOTE. For opinion of lower court in above case see 68 P. L. J., 231, where the question involved is discussed at considerable length.-EDITOR.

Corporations dend

In re Transfer Inheritance Tax.

Shares of Stock · Decedent Subscription Stock DiviPayment-"Waiver"-Transfer Inheritance Tax Act of June 20,

1919, P. L. 521.

Where a decedent is, at the time of his death, the owner of stock of a corporation, and subsequent to his death a stock dividend was declared, no "waiver" is required for the transfer of the stock representing such dividend, the shares standing in the name of the decedent having been appraised as of the time of his death and the tax paid thereon under the Transfer Inheritance Tax Act of June 20, 1919, P. L. 521.

Where a decedent prior to his death had subscribed for stock of a contemplated corporation, but had not paid for the same, and where the stock was subsequently paid for and a certificate issued in the name of the estate, a "waiver" is required before the stock can be transferred out of the estate. This is required by the Transfer Inheritance Tax Act of June 20, 1919, P. L. 521. Had the stock been in an existing corporation, no "waiver" would be required before the stock could be transferred out of the estate, unless the subscriber had the status of a corporate, shareholder.

This department is in receipt of your communication of the 19th ultimo requesting an interpretation of the Transfer Inheritance Tax Act Approved June 20, 1919, P. L. 521, with respect to the following:

"First. A decedent is the owner of stock of a corporation at the time of his death, and subsequent to his death, a stock dividend is declared. The stock standing in his name was, of course, inventoried as of the date of his death, and the inheritance tax paid thereon.

"Question. Would a waiver be required for the transfor of the shares represented by the stock dividend?

"Second. A decedent, prior to his death, had subscribed for some stock of a corporation, but had not paid the same. The stock is subsequently paid for by the executor, and a certificate issued in the name of the estate.

"Question. Would a waiver be required before this stock can be transferred out of the estate?"

Sections 35 and 36, respectively, prohibit personal representatives and corporations from transferring stock standing in the name of a decedent without what is popularly termed a "waiver" being first secured from the Auditor General.

They read as follows:

"Section 35. No executor, administrator, or trustee of any decedent, resident or non-resident, shall assign or transfer any stock of any corporation of this Commonwealth or of any national banking association located in this Commonwealth, standing in the name of such decedent, or in the joint names of such decedent and one or more other persons, or in trust for a decedent, subject to the tax herein before imposed, until such tax has been paid, unless the Auditor General consents to such transfer prior to such payment in manner hereinafter provided.