the Act of 1815 above quoted. The act provides, that, either party has a right to require an issue to be formed. It is within the province of the Court to provide by rule how and when that desire is to be expressed.

In Johnson vs. Johnson 4 D. R. 460, Rayburn Judge, a similar rule prevailed and Court held that it was too late to ask for an issue at a hearing before an examiner where the answer filed did not contain a demand, and the Libellant being in attendance after due notice with counsel and witnesses.

In the case of Allison v. Allison supra as well as the other cases above referred to no reference is made to any rule of Court and the presumption is there was none or it would have been adverted to.

The one difficulty in this case is that Libellant after the appointment of the examiner filed his replication asking for an issue. This was not brought to the attention of the Court nor was any move made to have an issue formed.

This action of the Libellant may have misled the Respondent and gives force to her statement that she was not prepared when the Master sat.

It does not, however, give her the right to ask for an issue at this late stage of the proceeding.

The Libellant having asked for a reference to a Master, before he demanded an issue, should have had the appointment of the Master revoked. The two courses of procedure are inconsistent.

I am of the opinion that an equitable way of disposing of this case is to discharge the rule asking for an issue, the Court, however, will refer the matter back to the Master and Examiner, if the Respondent requests, that she may have the opportunity of more fully presenting her defense.

Now, March 18, 1904, rule is discharged.

COM. S. LEIDY SCHAUp.

Practice-Amendment--Act of March 31, 1860. P. L. 427-Crimes— Statutory Rap -Measure of Proof to Show that Defendant is Above the Age of Sixteen Years.

Under the Act of March 31, 1860, P. L. 427, it is proper to allow an amendment changing the name of Defendant from Scharp to Schaup.

Upon a charge of statutory rape, in ascertaining whether the Defendant is of the age of sixteen years or upwards, the jury may take into consideration his appearance, always giving the Defendant the benefit of any reasonable doubt.

In the Court of Oyer and Terminer of Lehigh County. Commonwealth vs. Leidy Schaup. No. 8, September Sessions, 1903. Surcharge rape, etc. Verdict of guilty. Motions for a new trial and in arrest of judgment. Motions for a new trial refused and motion in arrest of judgment overruled.

Among the reasons filed for a new trial and in arrest ot judgment were the following;

The Court erred in amending the name of the Defendant from Leidy Scharp to Leidy Schaup.

There was no proof in the case to show that the Defendant was above the age of sixteen years; and in the absence of such proof the Defendant was entitled to an acquittal.

E. J. Lichtenwalner, District Attorney, for Commonwealth.
Edwin H. Stine and Milton C. Henninger for Defendant.

Trexler, P. J., November 23, 1903.

The Defendant was indicted by the name of Leidy Scharp. Upon the trial the District Attorney moved to amend the name by changing the "r" into a "u" making the name Schaup. This the Court allowed. I do not think under our amendment acts that there was any error committed in this. The Act of March 31, 1860, P. L. 427 is certainly broad enough to cover this case.

The other reason which is urged in support of a new trial is that the Commonwealth did not affirmatively prove that the Defendant was over the age of sixteen years. The indictment was laid for statutory rape and bastardy. The Defendant was

not called. After the verdict the attorney for the defense for the first time raised the point that the Commonwealth did not show the age of the Defendant. The Defendant is a man apparently of the age of twenty or twenty-one. No one would for an instant think him to be under sixteen. The Act of Assembly was read by counsel of the Defendant and for the Commonwealth, and the Court also in its charge referred to its provisions and in a general way instructed the jury that the Commonwealth must show that the Defendant was guilty of the crime beyond a reasonable doubt. The Defendant being in Court the jury had the means of ascertaining by their inspection of him whether he was of the age of sixteen or not. Whilst he did not testify he may be said to have been "in evidence." How could (in any case) the Commonwealth prove the age of a Defendant where he does not testify? Can the Commonwealth call experts? The jury are just as able from their common experience to judge the age of a person as any experts. We can, by looking into their mouths, determine the age of horses, but I know of no method of determining the age of persons except by their general appear

ance.

We can easily imagine the case of some entire stranger coming into this jurisdiction and having connection with a girl under the age of sixteen. If the Commonwealth were compelled to prove his age by some certain evidence the charge would fall. This would be an absurdity.

The attorney for the Defendant has referred to the case of Commonwealth vs. Goodheart 23 C. C. R. 65. I agree that the answer of the Court in that case was a correct statement of the law except that I would hold that in ascertaining whether the the Defendant is of the age of sixteen years or upwards, the jury may take into consideration his appearance always giving the Defendant the benefit of any reasonable doubt.

In a number of cases in the criminal courts it has been held that after a verdict even if the locality of the crime was

not proven so as to bring it into the proper venue, it was cured by verdict.

Commonwealth vs. Bubnis 197 Pa. 542.

Commonwealth vs. Gurley 45 Pa. 392.

Now November 23, 1903, the motion for a new trial is* refused and the motion in arrest of judgment is overruled.

COPE vs. COPE.

Practice Divorce-Proof that Respondent can not be found.

A rule of Court provided that no Master in Divorce shall proceed to take depositions unless he is satisfied by due proof that notice has been given to the Respondent and if the Respondent can not be found then proof that such notice has been posted in a conspicuous place in the Prothonotary's office shall be sufficient.

Held, that where personal service was not had, before notice in the office of the Prothonotary can be regarded as sufficient, there must appear upon the record some proof that Respondent can not be found

In the Court of Common Pleas of Lehigh County. Stella M. Cope vs. John J. Cope. No. 49 April Term, 1904. In Divorce. Report of Master and Examiner recommending a decree. Referred back to the Master and Examiner.

Erdman and Diefenderfer for Libellant.

Trexler, P. J., June 6, 1904. Section 4 of the Rules of Court 18 provides, that no Master in Divorce shall take depositions unless he is satisfied that notice has been given to the Respondent. If the Respondent can not be found then proof that such notice has been placed in a conspicuous place in the office of the Prothonotary for five days shall be sufficient.

I have again and again called the attention of masters heretofore appointed in cases where personal service was not had that before notice posted in the office of the Prothonotary can be regarded as sufficient there must appear upon the record some proof that the respondent can not be found.

I can find nothing in the report of the master showing that any effort was made to find the respondent. If there is any proof, counsel may call my attention to it.

Now June 6, 1904, the matter is referred back to the master and examiner in order that the omission may be corrected if the facts warrant.

BECK'S APPEAL.

Taxation of Mortgages-Act June 8, 1891, P. L. 231.

A mortgage held as indemnity only to secure a future possible and contingent liability for endorsements in a national bank by the mortgagee for the mortgagor is not the subject of assessment and taxation, in the hands of the surety, until default is made by the principal in the payment of his indebtedness.

In re appeal of Granville J. Beck from the decision of County Commissioners in refusing to strike off assessment of a state tax on a mortgage given by Robert G. Wunderly and William J. Wunderly to Appellant as security against a contingent liability as endorser. In the Court of Common. Pleas of Northampton County, No. 54 June Term, 1904.

C. F. Smith, for Appellant.

P. C. Evans, for County Commissioners.

The opinion of the court was delivered by

Scott, J.-The mortgage which is the subject of this assessment, although an absolute undertaking by its written terms, may be shown by parol evidence attaining the full standard of proof for equitable relief between the parties to have been intended as indemnity only against contingent future loss for endorsements. Lippincott vs. Whitman, 83 Pa., 244; Kutz's Appeal, 100 Pa., 75. The mortgagors and mortgagee together assert it, and so I find the fact. As the discounts for successive renewals of the notes given for the loans are paid by the debtors to the bank, no interest demand arises at present on this obligation. But this condition alone would not exempt it from tax