of the testamentary guardian. The latter is his uncle, is childless, and proposes to make him his heir. He is under no legal obligation to do so, but his coming on at considerable expense indicates a kind purpose. If brought up here the lad will have to run the gauntlet of the temptations and vices of a large city. How fatal they are to many is only too well known. We have painful evidence of it in the daily business of this court. Some, indeed, escape these perils and rise to prominence; but the road to such distinction is strewn with the wrecks of those who have fallen by the way. In the simple, and perhaps rugged life, incident to the west, there may be less ease and luxury, but more that develops true manhood. The temptations certainly will not be so great. A comfortable independence upon a farm in Iowa is better than an uncertain future in a large city. The parties to this proceeding ought not to allow their generous strife for the custody of their dead brother's child to interfere with their amicable relations. It is also proper that the respondents should be allowed a reasonable time to prepare the minor for his change of residence. For this purpose they are allowed to retain him in their custody until Monday next, at which time it is ordered by the court that they deliver him into the custody of the relator as his testamentary guardian. R. H. Hinckley and Chas. N. Mann, Esqs., for relator. Findlay & Thomas, Esqs., contra. [Leg. Int., Vol. 31, p. 36.] COMMONWEALTH vs. MAGEE. 1. A judge may, where the evidence is uncontradicted, tell the jury, that it is their duty to convict. 2. Commonwealth vs. Keenan, 30 Legal Intelligencer, 417, followed. Motion for a new trial and in arrest of judgment. Opinion delivered December 6, 1873, by PEIRCE, J.-This motion is made on two grounds: 1. For error in permitting the Commonwealth to stand aside jurors without showing cause of challenge until the panel had been called. 2. For misdirection of the judge in his charge to the jury. The first question has been disposed of in the opinion of Allison, P. J., delivered this day in the case of the Commonwealth vs. Keenan, Legal Intelligencer, Vol. 30, p. 416, for selling liquor without a license, affirming the right of the Commonwealth in cases of misdemeanor to stand aside jurors, as had previously been affirmed in cases of felony in Commonwealth vs. Morrow, 3 Brewster, 402. The evidence against the defendant was clear and explicit by two witnesses, who testified to having bought and drunk liquors at the defendant's place within this year; one said he thought it was in the month of April; the other said, "one time was in April, I remember." The defendant offered no testimony. There was nothing in the manner or matter of the witnesses to call in question their veracity, or in the slightest degree to impugn their evidence. The counsel for the defence did not in any manner question the truth of their evidence, but confined his address to the jury to an attack upon the law and the motives of the prosecutors. Were the jury, under these circumstances, at liberty to disregard their oaths and acquit the defendant? They had been solemnly sworn to try the case according to the evidence, and a regard to their oaths would lead them but to one conclusion, the guilt of the defendant. After carefully stating the evidence to them, I told them that I had no hesitation in saying that it was their duty to convict the defendant. The counsel for the Commonwealth states the charge to have been, "The judge declared that he had no hesitation in saying, that under the evidence, it was the duty of the jury to render a verdict of guilty under the bill of indictment." But no matter which form of expression was used, it was the evidence to which I had just called their attention that indicated their duty, and in view of which the remark was made. I perceive no error in this. It was not a direction to the jury to cenvict the defendant. It was simply pointing them to their duty. Jurors are bound to observe their oaths of office, whether it will work a conviction or acquittal of a defendant, and they are not at liberty to disregard uncontradicted and unquestioned testimony at their mere will and pleasure. Where, however, the testimony is contradicted by testimony on the other side; or a witness is impeached in his general character; or by the improbability of his story, or his demeanor, it would be an unquestionable error in a judge to assume that the facts testified to by him had been proved. In Delany vs. Robinson, 2 Wharton, 507, Chief Justice Gibson says, "It will not be pretended that a jury may find capriciously and without the semblance of evidence, or that the court may not set aside their verdict for palpable error of fact; and if it may subsequently unravel all they have done, why may it not indicate the way to a wholesome conclusion in the first instance? . Without this process of judicial review causes would frequently be determined, not according to their justice, but according to the comparative talents of the counsel. To hold the scales of justice even, a judge may fairly analyze the evidence, present the questions of fact resulting from it, and express his opinion of its weight, leaving the jury, however, at full and active liberty to decide for themselves. The judge who does no more than this, transcends not the limits of his duty." This was said in a case in which there was a conflict of testimony. It is the duty of the court when it is decidedly of opinion that the evidence given by the plaintiff, supposing it to be all true, does not tend to prove such facts as will in law entitle him to recover, to tell the jury so. And if the jury were, after such direction from the court, to find a verdict for the plaintiff, it would be the duty of the court to set it aside and grant a new trial: Matson vs. Fry, 1 Watts, 435, Kennedy, J. To submit a fact destitute of evidence, as one that may nevertheless be found, is an encouragement to err, which cannot be too closely observed, or unsparingly corrected: Stouffer vs. Latshaw, 2 Watts, 165, Gibson, C. J. It is error in the court to submit a fact to the jury of which there is no proof: Miller vs. Cresson, 5 W. & S. 284. When the evidence on a question is all one way the court is justified in not transmitting the question as one of fact to the jury: U. S. vs. 1 Still, 5 Blatch. C. C. 403. See also Davis vs. Hardy, 6 B. & C. 231, in which Abbot, J., says: "Where a witness is unimpeached in his general character, and uncontradicted by testimony upon the other side, and there is no want of probability in the facts which he relates, I think a judge is not bound to leave his credit to the jury, but to consider the facts he states as proved, and to act upon them accordingly." To warrant an unqualified direction to the jury in favor of one party or the other, the evidence must either be undisputed, or the preponderance so decided that a verdict against it would be set aside, and a new trial granted. The rule with regard to the positive instruction of the court to find facts admits of the qualification, that where the verdict is in strict accordance with the weight of evidence, and justice has consequently been done, a new trial will not be granted, though the direction be positive: Graham and Waterman on New Trials, 751. There are occasions in which it becomes the solemn duty of a judge, in maintenance of the law and furtherance of public justice, to express his opinion clearly and unmistakably upon the facts submitted in evidence. And this was one of these occasions. The law under which the defendant was prosecuted has been openly derided and defied. Bad men have conspired to defeat it. They openly violate it, and perjured witnesses, and juries disregardful of their oaths, have given impunity to the transgressors. And all this has occurred in the very tribunals of justice seeking to administer the law and in the course of its administration. A judge who would hesitate, under these circumstances, to instruct a jury in their duty, would seem to me to be unworthy of the trust reposed in him. No objection was made to the charge by the counsel for the defendant at the time it was given, and the jury, after deliberate consideration, rendered a verdict of guilty. The motion for a new trial is refused. Magee was sentenced to undergo an imprisonment in the county prison for six months, and to pay a fine of fifty dollars and costs of prosecution. Lewis D. Vail and George D. Stroud, Esqs., for Commonwealth. [Leg. Int., Vol. 31, p. 33.] COMMONWEALTH ex relatione FLINT PEASLEE vs. THE SHERIFF. The distribution of prizes by chance amounts to a lottery. Habeas corpus. Opinion delivered February 7, 1874, by PAXSON, J.-The relator was arrested by order of the mayor, and bound over by Alderman Beitler, upon the charge of "setting up a lottery." He had taken a room on Chestnut street, above Ninth, and was engaged in selling "prize candy." The latter was in small sticks, worth, perhaps, a penny, and was sold in wrappers, at five cents each. A placard announced that no change would be given for sums less than twenty-five cents. Coupons, entitling the holder to a small sum of money, were placed in some of the packages. These coupons were cashed on presentation at the counter. Whenever a prize was drawn a large gong was struck to announce the event to the crowd in attendance. The words "no lottery" were conspicuously posted up on the premises. The relator was doing a thriving business at the time of his arrest. There was a considerable crowd in attendance, and purchasers were plenty. In Commonwealth vs. Manderfield, 27 Legal Intelligencer, 1870, p. 86, we had occasion to define an illegal lottery. Briefly stated, it may be said to be the distribution of prizes by chance. Whatever amounts to this, no matter how ingeniously the object of it may be concealed, is a lottery. This relator evidently regarded his occupation as at least questionable, by placing the words "No lottery "No lottery" upon his premises. An honest man has no occasion to place the words "Not a thief" upon his hat. The mayor was right in making this arrest. The "prize candy" business is a school in which hundreds of boys are daily receiving their first lessons in gambling. It is time it was brought to the test of the law, and for that purpose this relator is remanded. [Leg. Int., Vol. 31, p. 84.] COMMONWEALTH vs. Fox. 1. As there are two acts of assembly requiring licenses to theatres, an indictment against the proprietor of a theatre should allege under which act the charge is made. 2. The duties of a county treasurer, by the consolidation act of 1854, devolve upon the city treasurer. Opinion delivered March 7, 1874, by LUDLOW, J.-The difficulty in the present case arises chiefly from the general language used in this indictment. The charge against the defendant is, that he "did show, hold and exhibit a certain theatre, and did permit and allow certain theatrical exhibitions therein, within the city of Philadelphia, without having first obtained a license agreeable to law for that purpose." Under the laws of the State two distinct kinds of licenses seem to be required. One license is to be paid to the State, and the other to the city. To exhibit in any building, etc., a tragedy, comedy, circus, or dramatic performance, etc., requires a city license, and if any exhibition of the various classes of entertainments specified in the act of 1864 takes place, except as permitted by the license, a penalty is to be inflicted, which includes a fine and imprisonment, or either, at the discretion of the court. By the law of 1845, no theatrical exhibition shall be allowed without a State license, and the act of 1850, after designating the sums to be paid the county treasurers for licenses, declares that if any person shall attempt to show, hold or exhibit any such theatre, etc., without a State license, the offender may, on conviction, be fined not less than two hundred nor more than one thousand dollars. A theatre is defined to be "a building appropriated to the representation of dramatic spectacles," "a place for shows," "a play-house." A tragedy is "a dramatic representation;" a comedy is "a dramatic representation of the lighter faults, passions, actions and follies of mankind," and a drama is defined by the best lexicographers to be either "a tragedy, comedy, play, or a theatrical entertainment." What is the exact legal meaning of an opera has been, and is, the subject of dispute, one court holding that an act to tax theatres does not include opera companies: Rowland vs. Kleber, 1 Pitts, 68, and another, in Society vs. Diers, 60 Barb. 152, deciding otherwise. So far as we have been able to discover, when the indictment charged that defendant did show, hold and exhibit a certain theatre, and did allow certain theatrical exhibitions, the pleader in substance said that he had either opened a place for shows, or a play-house, and that he exhibited in a building in the city, either a tragedy, or a comedy, or a play; or that he opened for public entertainment a place for "dramatic performances." It is just at this point that our difficulty arises, for under which act of assembly are we to enter judgment against the defendant? If any man, under the act of 1864, exhibits in any building (among other things) either a tragedy, comedy, play or dramatic performance, what does he in fact do, but open a theatre, show, hold and exhibit a theatre, and allow theatrical exhibitions therein? and if he does this without a city license, he may, on conviction, be sent to prison, while under the act of 1850, in any case, we have only power to impose a fine. All this doubt and difficulty might have been removed by the pleader, had he inserted the word "State" before license in the indictment, and for greater certainty the date of the act of assembly, which had been violated. Upon one other point made in this case we will only express our opinion upon the law relating to it, without going into an elaborate. discussion of the question presented. We are of the opinion that the tax specified in the act of 1850 may be paid to the treasurer of the city of Philadelphia. The act of consolidation clearly devolved upon the city the duties which in this respect devolved upon the county treasurers, and as the city treasurer is the agent of the city, he has the power to collect this money, and to pay it to the proper authorities of the Commonwealth. For the reasons first above assigned the judgment in this case must be arrested. F. Amedee Bregy, Esq., and William B. Mann, Esq., District Attorney, for the Commonwealth. Lucas Hirst, Esq., for defendant. [Leg. Int., Vol. 31, p. 172.] THE CITY vs. THIELE. A had been ordered by the court to pay $5 per week for the support of his wife, and afterwards was divorced from his wife by an act of assembly-Held, that he could not be obliged to pay anything further after the passage of the act, but the court declined to vacate the original order, Opinion delivered May 23, 1874, by PAXSON, J.-There were two rules entered in this case; one by the defendant to show cause why the order of court of August 27, 1872, requiring the said defendant to pay five dollars per week for the support of his wife should not be vacated; the other rule was entered by the |