author: Mobbison, J,

text:
    Moore to use, Appellant, v. Adams.

      Deceit — Fraud—Pleadings—Evidence—Charge.
    In an action of assumpsit to recover money alleged to be due upon promissory notes which had been surrendered and cancelled, where the plaintiff alleges in his statement that he was induced by the fraud of the defendants to surrender the note, and the whole case is tried on the theory that the plaintiff was induced to accept for the notes a certificate of stock, by the deceit and fraud of the defendants, and the question of fraud is fully and fairly submitted to the jury upon points presented by the plaintiff, and a verdict and judgment results for the defendants, the plaintiff cannot on appeal set up a warranty of title to the stock by the defendants, or a failure of title.
    Argued May 8,1905.
    Appeal, No. 142, April T., 1905, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1902, No. 54, on verdict for defendants in case of R. M. Moore to use of Safe Deposit & Title Guaranty Company, Assignee, v. M. S. Adams et al., executors of M. S. Adams, deceased.
    Before Rice, P. J., Beaver, Orladt, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit to recover money alleged to be due on a promissory note. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned are quoted in the opinion of the Superior Court.

      C. E. Harrington and M. F. Reason, for appellant.
    This case is ruled by the following authorities : Flynn v. Allen, 57 Pa. 482 ; People’s Bank v. Kurtz, 99 Pa. 344 ; Porter v. Bright, 82 Pa. 441; Bixler v. Saylor, 68 Pa. 146 ; Harding v. Lloyd, 3 Pa. Superior Ct. 293 ; Boyd v. Bopst, 2 Dallas, 92 ; Charnley v. Dulles, 8 W. & S. 353 ; Burns v. McCabe, 72 Pa. 309; Wright v. Jordan, 181 Pa. 100; West Philadelphia Nat. Bank v. Field, 143 Pa. 473 ; Ritter v. Singmaster, 73 Pa. 400; Perdue v. Taylor, 146 Pa. 163 ; Mechanics’ Nat. Bank v. Kielkopf, 22 Pa. Superior Ct. 128.

      Samuel II. McCain, with him Calvin Rayburn a.nd Austin Clark, for appellees.
    October 9, 1905:
   Opinion by

Mobbison, J,

In this action of assumpsit the plaintiff sought to recover a balance of $600, alleged to be due and owing upon two certain promissory notes, dated November 7, 1895, due and payable in one year for $500 each. The defense was that the notes were paid in full by the assignment by M. S. Adams to R. M. Moore of six shares of stock, class “ F,” in the Life Protective Savings Loan Association of Pennsylvania, No. 8753, originally issued to W. R. Grant and subsequently assigned and transferred to M. S. Adams, on the books of the association, and further by the payment of $400 by a check on the Butler ^County National Bank.

No question is raised as to the fact that M. S. Adams assigned and delivered the certificate of stock to Moore and that the value was then agreed to be $600, nor is it denied that the plaintiff .received the $400 on said check. In the plaintiff’s declaration we find the gravamen of the claim stated thus: “ On August 22, 1900, said defendants having said certificate of stock in their possession, and being the owners thereof, did at the Parker Exchange Bank, in said Armstrong county, fraudulently, covinously and with intent him, the said R. M. Moore, in this behalf craftily and subtilely to deceive and defraud, procure and induce the said R. M. Moore, for a valuable consideration, to purchase said stock, and, upon the representations, promises, assumptions and inducements that said stock was worth the sum of $600 in cash at that time, the said R. M. Moore did then and there pay to the defendants the sum of $600 and did surrender and cancel to'the defendants the aforesaid notes, upon the defendant’s representations, promises, assumption and verbal guarantee that said certificate of stock was actually then worth the sum of $600, and that he, the defendant, would guarantee the payment of the same and would warrant same and keep harmless the plaintiff from all liability by reason of the purchase of said stock and the money paid therefor. By means of the premises aforesaid the defendants fraudulently deceived the plaintiff as to the sale and value of said stock,” etc. The declaration further avers that the stock was of no value whatsoever. The trial resulted in a verdict for the defendants, and the court having refused a new trial, judgment was entered on the verdict and the plaintiff appealed.

At the trial the plaintiff’s counsel presented ten written-points, and they were all read to the jury and answered by the court, and, upon the pleadings and the evidence, we think the answers were correct. The plaintiff’s third point is : “ Under the pleadings the plaintiff is entitled to recover against both defendants or he cannot recover at all.” This point was affirmed. Plaintiff’s fourth point: “The plaintiff having proven that the indorsements upon the notes, excepting as to $400, were procured by false and fraudulent representations by one of the defendants, it is a question for the jury.” This point was affirmed. The fifth point requested the court to charge that “ the defendant, M. S. Adams, transferred a certain certificate of stock to the plaintiff, to which he had no title, and received therefor a credit upon said notes to the advantage of the defendants, an implied warranty of title legally arises, which, if the evidence on the part of the plaintiff is believed, the warranty is broken and the plaintiff is entitled to recover.” This point was rightfully refused because it asked the court to say as a matter of law that M. S. Adams had no title to the certificate of stock, but the plaintiff had averred in the declaration that M. S. Adams and Ella Adams were the owners of said certificate of stock at the time they sold and assigned it to the plaintiff. And in addition to this, they offered proof at the trial to sustain this averment. It, therefore, would have been palpable error for the court to have affirmed the fifth point. The sixth point requested the court to say as a matter of law that the assignment of the certificate of stock, by M. S. Adams, was a legal fraud as well as a fraud in fact upon R. M. Moore. This point was refused because the court could not declare, as a legal conclusion, that the transaction was a fraud in fact. The seventh and eighth points were affirmed; the ninth, that under all the evidence the verdict must be for the plaintiff, was properly refused. In our opinion, the question raised by the tenth point was rightfully referred to the jury.

' "We find in the record twelve assignments of error, and, in our opinion, none of them can be sustained.

"We do not propose to discuss the assignments of error separately. But the tenth assignment deserves mention. It is: “ If the jury find from the evidence that Ella A. Adams is not liable, their verdict must be for the defendants.” The learned counsel say the court erred in affirming this point, and they argue in support of their contention. A sufficient answer is the plaintiff’s third point, which they submitted and the court affirmed, namely, “ Under the pleadings the plaintiff is entitled to recover against both defendants or he cannot recover at all.”

After taking this position in a written point and adhering to it throughout the trial, it comes with bad grace for the learned counsel to insist that the court erred in saying to the jury that if Ella A. Adams is not liable their verdict must be for the defendants.

Under the pleadings and evidence the gravamen of the plaintiff’s contention was that he was induced by fraud to accept the certificate of stock and to indorse credits upon the notes of $600. This question was made prominent all through the trial by the plaintiff’s counsel, and their fourth point requested the court to submit it to the jury. This the court did in a charge which was manifestly fair and impartial. The court repeatedly told the jury that if Adams practiced a fraud upon Moore, and thereby induced him to accept the certificate of stock and enter the credit upon the notes, then the verdict should be for the plaintiff for $600, with interest from August 22, 1900. The court further said that “ if you find that no fraud was perpetrated there by Mr. Adams, that no deception was practiced upon Mr. Moore by Mr Adams, then your verdict in this case should be for the defendant.” The jury having found in favor of the defendants establishes the fact that Adams did not deceive and defraud Moore, and the learned court having refused a new trial, we must consider this question settled by the verdict. We find no error in the charge of the court in regard to the tender of the stock by Mr. Moore back to'Mr. Adams, after the commencement of the suit. In our opinion the instruction of the court upon this point was quite favorable to the plaintiff.

Much of the argument of the learned counsel for the appellant is devoted to the proposition that the vendor of chattels and choses in action impliedly warrants the title. This proposition is sustained by many cases, among which are the following : Flynn v. Allen, 51 Pa. 482; People’s Bank v. Kurtz, 99 Pa., 344; Porter v. Bright, 82 Pa. 441; Charnley v. Dulles, 8 W. & S. 353. But this case 'was not tried on the theory of the failure of plaintiff’s title to the stock certificate. On the contrary, the plaintiff averred that Adams had title to it and that he sold and delivered it to the plaintiff. Therefore, it is now manifestly unfair to the court to contend for a reversal on the ground of implied warranty and failure of title.

The opinion of the learned court in disposing of the motion and reasons for a new trial clearly shows that the case was tried on the theory that the plaintiff was induced to accept the certificate of stock and credit the supposed value thereof upon the notes by deceit and fraud. The learned court said: “ An examination of the entire statement shows that the gist of the action was the fraudulent acts of M. S. Adams, and upon that theory the case was tried.”

In regard to the averment in the plaintiff’s declaration of the defendant’s (M. S. Adams) verbal guarantee that said cer7 tificate of stock was actually worth the sum of $600, “ and that he, the defendant, would guarantee the payment of the same and would warrant, save and keep harmless the plaintiff from all liability by reason of the purchase of said stock and the money paid therefor,” it is sufficient to say : (1) That this averment only applies to defendant M. S. Adams, and, therefore, there cannot be a recovery upon it in a joint action against M. S. Adams and Ella A. Adams; and (2) That this averment was not sustained by the evidence, even as to M. S. Adams.

It is not improbable that this case ought to have been so tried and presented to the jury that the plaintiff would have' recovered the balance due on the notes, less the $400 payment. But if there was a mistrial and a failure of justice, thg blame, if any, does not rest upon the court. ¥e think the case was fairly tried and presented to the jury on the theory of the plaintiff as disclosed by the declaration, the evidence and the points presented at the trial.

The assignments of errors are all dismissed and the judgment is affirmed.


source: Caselaw Access Project

author: Mobrison, J.,

license: Public Domain

text:
    Whiteside v. Winans, Appellant.

      Equity — Specific performance — Amendment of bill — Mistake—Contract.
    Where on a bill for specific performance of a contract for the sale of lands, it appeared that the words “by deed of general warranty,” were inserted in the contract by mistake, the court may permit the bill to be amended so as to call for a special warranty or a quitclaim deed.
    The plaintiff has a right to insist on a specific performance of the contract, so far as the vendor can carry it out.

      Equity — Specific performance — Vendor and vendee — Tender.
    As a general rule where the vendor notifies the purchaser that .he will not receive the money, and will not execute his contract by a conveyance of the land, the plaintiff is not required as a condition of specific performance, to make tender of the purchase price.

      Statute of frauds — Vendor and vendee — Contract—Description of land— Extrinsic evidence.

    The terms of a contract for the sale of land may be abstract and of a general nature, but they must be sufficient to fit. and comprehend the property which is the subject of the transaction so that, with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the veiy property intended, and to the exclusion of all other property. Certainty to a common intent is all that is required. A description which can be made certain by proof of an extrinsic fact referred to in the agreement is sufficient.
    Land is sufficiently described in a contract if it states the names of all the owners of surrounding lands, and also describes it as consisting of lots referred to by their numbers.
    Argued May 9, 1905.
    Appeal, No. 19, April T., 1905, by defendants, from decree of C. P. Beaver Co., June T., 1903, No. 7, on bill in equity in case of Eliza J. Winans and Isaac S. Winans v. Robert A. Whiteside.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Bill in equity for specific performance. Before Wilson, J.
    From the record it appeared that the contract sought to be specifically performed was as follows :
    “ The said Isaac S. Winans, and E. J., his wife, for the consideration hereinafter mentioned, doth themselves, their heirs, executors and administrators, covenant, promise, grant and agree to and with the said Robert A. Whiteside, his heirs and assigns, by these presents, and they, the said parties of the first part, shall and will on or before September 16, 1902, at the proper costs and charges of the said first parties, their heirs and assigns, by deed of general warranty, will well and sufficiently grant, convey and assure unto the said Robert A. Whiteside, heirs and assigns, in fee simple, clear of all encumbrances, all those certain lots or pieces of lots or any and all lots belonging to the said first parties, lying within the following boundaries, to wit: on the north by land of the Atlantic Tube Company, on the east by the right of way of the P. Ft. W. & C. Railway, on the south by lands now or late of John Edwards, on the west by Third avenue, being lots number 757, 758, 759, 760, also all right, title, and interest in Railroad street from Forty-third street to land of Jno. Edwards and Forty-fourth street from- Third avenue to Railroad street; Forty-third street from Third avenue to Railroad street, together with all and singular the buildings, improvements and other premises hereby demised with the appurtenances. In consideration whereof the said Robert A. Whiteside, himself, his heirs, executors, and administrators, doth covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, by these presents, that they, the said Robert A. Whiteside, heirs, executors, and administrators, or some of them shall and will well and truly pay, or cause to be paid unto the said parties of the first part, their executors and assigns, the sum of $50.00 per lot.”
    The court found the facts to be as follows :
    1. The agreement entered into between the plaintiff and the defendants, August 16, 1902, represents in full the entire agreement between the parties, except the statement by the plaintiff’s agent at that time that a warranty deed would not be required; and the amended bill not asking for a specific performance of the contract, as it appears in the written agreement, but permits a modification of the same to either a special warranty or quitclaim deed.
    2. The Standard Scale and Supply Company has located upon these lots in connection with others purchased from the heirs of A. J. Boyle by the plaintiff, and at the time this contract was entered into all the heirs of A. J. Boyle residing in this community had executed similar contracts with the plaintiff for the sale of such lots and interests in the lots as was vested in them.
    3. That the plaintiff, Robert A. Whiteside, party of the second part to said contract, has complied with all the terms of his contract excepting the demanding of the deed of general warranty, which it appears from the testimony was not to be asked, although it appears in the contract; and that defendants refused to sign a deed of general warranty, or any other kind of a deed, or comply in any manner with the written contract entered into with the plaintiff by them.
    4. That the failure on the part of the defendants to comply with their contract will work irreparable loss and injury to the plaintiff, as the Standard Scale and Supply Company have located and erected their factory upon the land in question, relying upon the contract in evidence.
    CONCLUSIONS OF LAW.
    1. The plaintiff is entitled to a specific performance of the contract as modified by plaintiff’s amended bill.
    2. The plaintiff, having demanded a deed of general warranty, contrary to the agreement made by his agent with the defendants, should pay the costs in this ease.
    8. The defendants should execute and deliver to the plaintiff a deed of special warranty upon the payment of the consideration money therein named, with interest.

      Error assigned was the decree awarding specific performance and dismissing exceptions to adjudication.

      Frank H. Laird, with him J. Rankin Martin and J. C. Martin, for appellant.
    It is very evident that the minds of the parties never met, even if the contract were a valid one, as is shown by the amendment filed February 15, 1904; and, therefore, that a chancellor could not decree specific performance of it: Cortelyou’s Appeal, 102 Pa. 576.
    Further, there was no attempt to show, by any evidence offered, that a tender of the purchase price was ever made by plaintiff, or by anyone in his behalf: Hughes v. Antill, 23 Pa. Superior Ct. 290.
    The contract, however, is so vague and indefinite that the specific performance of it could not be decreed: Louisville, etc., Ry. Co. v. Stone Co., 2 Am. & Eng. Decisions in Eq., 523; Ikerd v. Beavers, 106 Ind. 483 (7 N. E. Repr. 326); Hammer v. McEldowney, 46 Pa. 334; Agnew v. Southern Ave. Land Co., 204 Pa. 192.

      W A. McConnell, with J. Frank Reed, for appellee.
    The amendment was proper: Burk’s Appeal, 75 Pa. 141; Riesz’s Appeal, 73 Pa. 485 ; Erwin v. Myers, 46 Pa. 96 ; Hughes v. Antill, 23 Pa. Superior Ct. 290.
    Tender was unnecessary : Hughes v. Antill, 23 Pa. Superior Ct. 290 ; Pennsylvania Mining Co. v. Martin, 210 Pa. 53,
    The land was sufficiently described: McFarson’s App., 11 Pa. 503 ; Felty v. Calhoun, 139 Pa. 378 ; Henry v. Black, 210 Pa. 245.
    October 9,1905:
   Opinion by

Mobrison, J.,

This was a bill in equity praying for a decree of specific performance of a contract for the sale of land and the court below entered a final decree in accordance with the prayer of the bill. A careful examination of the bill and answer, the testimony, exceptions on the part of the defendant and the decree convinces us that the court. did not err in making the decree complained of.

We find in the record twenty-two assignments of error but we think they can all be disposed of without any lengthy discussion. The learned counsel for the appellant, in his argument, contends for the reversal of the decree on three grounds, viz.: (1) That the minds of the parties never met; (2) that there was no tender of the purchase money made before the commencement of the suit; and (3) that the contract is so vague and indefinite that the specific performance of it could not be decreed. The reason for the first objection is hardly worthy of consideration. It is that the contract called for a deed of general warranty, while in truth and fact, the parties agreed that the property should be conveyed by a special warranty or quitclaim deed. It clearly appears that the insertion of the words, “ by a deed of general warranty,” in the contract was a mistake, and upon its discovery, the plaintiff, with leave of court, promptly amended the bill so that it only called for a special warranty or quitclaim deed. The granting of this amendment was clearly within the power of the court and it worked no injury to the defendants. It simply required them to perform the contract in the precise manner which they had agreed to do as shown by their own admissions. It is idle to contend that this furnishes any ground of excuse for the nonperformance of their contract.

The plaintiff has a right to insist on a specific performance of the contract so far as the vendor can carry it out: Burk’s Appeal, 75 Pa. 141; Hughes v. Antill, 23 Pa. Superior Ct. 290. Cortelyou’s Appeal, 102 Pa. 576, cited by appellants is not in point. In that case it was found “ that the agreement was entered into under a misapprehension of the parties, in regard to the quantity of land intended to be included in tbe contract. The serious and substantial doubt found to exist is sufficient to stay the hand of a chancellor, and to justify him in refusing a decree of specific performance, which is not of right, but of judicial grace.”

As to the second objection we do not understand why it is pressed in the argument because the plaintiff alleges in the bill that he made a tender of the purchase money and the court so found, and the plaintiff avers that he is and always has been ready to carry out his contract. And it is further averred that the defendants at all times refused to execute the contract and for this reason the plaintiff was excused from making a tender. As a general rule where the vendor notifies the purchaser that he will not receive the money and will not execute his contract by a conveyance of the land, the plaintiff is not required, as a condition of specific performance, to make tender of the purchase price : 2 Beach on Modern Equity Jurisprudence, sec. 589; Penna. Mining Co. v. Martin, 210 Pa. 53.

As to the appellant’s contention that the contract is so vague and indefinite as to its subject-matter that specific performance cannot be decreed, we think it is without merit. By their written contract signed, sealed and delivered, the defendants covenanted that they “ shall and will, on or before September 16, 1902, at the proper costs and charges of the said first party, their heirs and assigns, by deed of general warranty, well and sufficiently grant, convey and assure unto the said Robert A. Whiteside, heirs and assigns, in fee simple, clear of all encumbrances, all those certain lots or pieces of lots or any and all lots belonging to the said first parties, lying within the following boundaries, to wit: on the north by land of the Atlantic Tube Company, on the east by the right of way of the P. F. T. W. & C. Railway, on the south by lands now or late of John Edwards, on the west by Third Avenue, being lots number 757, 758, 759, 760, also all right title and interest in Railroad street from Forty-third street to land of John Edwards, and Forty-fourth street from Third Avenue to Railroad street; Forty-third street from Third Avenue to Railroad street, together with all and singular buildings, improvements and other premises hereby demised with the appurtenances.”

The said Robert A. Whiteside bound himself to purchase said property and pay therefor the sum of $200.

In view of this description and the many decided cases we are unable to see any merit in the contention that specific performance of this contract will not be enforced. We think the description and terms of the contract are well within the principle of 2 Beach, on Modern Equity Jurisprudence, sec. 583, where it is said : “ The terms may be abstract and of a general nature, but they must be sufficient to fit and comprehend the property which is the subject of the transaction, so that, with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended, and to the exclusion of all othér property. Certainty to a common intent is all that is required. A description which can be made certain by proof of an extrinsic fact referred to in the agreement is sufficient.”

In our case proof of the location of the lands referred to as boundaries of the subject-matter of the contract and proof of the location of the lots referred to by their numbers will define the land with certainty and beyond all question of doubt. See McFarson’s Appeal, 11 Pa. 503 ; Felty v. Balhoon, 139 Pa. 378. In Henry v. Black, 210 Pa. 245, the written memorandum was as follows : “June 1,1903. Received from Mrs. Anna E. Henry $5000 hand money on account of sale of Hotel Duquesne property as per agreement made this day.” This was held by the Supreme Court to be a sufficient memorandum in writing upon which to base a decree of specific performance.

The cases cited by the appellant are not in point. The one which comes the nearest to their contention is Agnew v. Southern Avenue Land Co., 204 Pa. 192, but that case is readily distinguishable from the one in hand. The written memorandum was: “ The size of the lot of ground secured, or intended to be secured, by Mrs. Agnew, to be determined hereafter, and to conform to the general plan regarding the convenience and economy, hereafter to be laid out and established.” The court sustained the demurrer and dismissed the bill for specific performance. Mr. Justice Mitchell speaking for the court said: “ The memorandum in writing upon which the appellant’s bill is founded is unfortunately wanting in that complete and definite character which is necessary to enable a court of equity to decree specific performance.” A mere glance at the writing shows that it does not describe any land at all nor does it furnish any data from which a surveyor or anybody else could determine the size of the lot of ground or its location. See also Ross v. Baker, 72 Pa. 186; Smith & Fleek’s Appeal, 69 Pa. 474.

The findings of fact, by the court below, which are fully sustained by the evidence, entirely justify the conclusions of law and the decree.

The assignments of error are all dismissed and the decree is affirmed at the costs of the appellants.

Orlady, J., dissented.


author: Mobbison, J.,

text:
    Oil City Building & Loan Association v. Shanfelter.

      Municipal lien — Execution—Distribution—Judgment—Priority of liens— Act of June 4, 1901, P. L. 364.
    Where upon the distribution of the proceeds of a sheriff’s sale of real estate, it appears that the liens on the property in order of time were (1) a mortgage; (2) a judgment; (3) a municipal lien for a sewer which had accrued prior to the Act of June 4, 1901, P. L. 364, and (4) a municipal lien for paving which had accrued after the act of June 4, 1901, and it also appears that the fund was sufficient to pay the mortgage and the sewer lien, but not both of the others, the judgment" will have a preference as to the balance over the paving lien which had accrued after the act of June 4, 1901. Martin v. Greenwood, 27 Pa. Superior Ct, 245, followed.
    Argued May 15, 1905.
    Appeal, No. 127, April T., 1905, by the city of Oil City, from order of G. P. Venango Co., Aug. T., 1903, No. 60, distributing proceeds of sheriff’s sale in case of Oil City Building & Loan Assn. v. Elizabeth Shanfelter. Before Beater, Orlady, Porter, Morrison and Henderson, JJ. Affirmed.
    Rule to show cause why order should not be made by the sheriff to apply proceeds of sale to municipal liens. Before Criswell, P. J.
    The facts are stated in the opinion of the Superior Court.
    . Error assigned was the order of the court.

      Peter M. Speer, city solicitor, with him Isaac Ash and E. W. Pays, for appellant.
    In Pennsylvania the rule is that a judicial sale of real estate on any lien divests all. other liens, whether anterior or posterior, to that on which the sale takes place, and the exceptions to the rule consists of a few eases in which the liens are preserved by statutory enactment or by judicial decisions : Willard v. Norris, 2 Rawle, 56 ; Presbyterian Corporation v. Wallace, 3 Rawle, 109; Keen v. Swaine, 3 Yeates, 561; Mode’s Appeal, 6 W. & S. 280 ; Stewartson v. Watts, 8 Watts, 392; Stackpole v. Glassford, 16 S. & R. 163; Girard Life Insurance, etc., Co. v. Farmers’, etc., Nat. Bank, 57 Pa. 388.
    The lien of taxes and municipal claims for paving, sewerage, etc., are subject to this general rule that a judicial sale divests all liens, except in cases where such liens are preserved by statutory enactment: Eaton’s App., 83 Pa. 152; Pittsburg’s App., 70 Pa. 142; Tassey’s Est., 41 Pa. 60.
    In the present case it is our contention that all the liens are divested.
    Section 32 of the act of 1901 clearly provides that a judicial sale shall not discharge the lien of a tax or municipal claim, except to the extent that the proceeds realized are sufficient for its payment after paying the costs and expenses of the sale, and except that when a sale is had on a tax or municipal claim such tax or claim is divested, no matter how little is realized.
    In the case in hand, however, the proceeds are sufficient, and consequently we contend the lien becomes divested and we must look to the proceeds for its payment.

      JSdmond V. Breene, with him William J. Breene, for appellee.
    A municipal assessment creates no lien independently of a statute : McGauley v. Opie, Brightly’s Digest, 4390.
    The cases cited by the learned counsel for the appellant are not controlling in this issue, for the reason that the language used in the particular acts upon which those cases were determined was clear and expressive of the legislative intent.
    October 17,1905 :
   Opinion by

Mobbison, J.,

This is an appeal from the decree of the court below distributing the proceeds of the sale of real estate upon a judgment obtained on a mortgage in favor of the plaintiff, dated April 9, 1897, recorded April 13,1897. The next lien in order upon the land so sold was a judgment in favor of P. Egan & Company, entered October 20, 1900, and it was a subsisting lien at the time of the sale. The next was a municipal lien for a sewer assessment in favor of the appellant, entered April 3, 1901, and this lien accrued prior to the general tax and municipal lien act, approved June 4, 1901. The next was a municipal lien for a paving assessment, in favor of the appellant, which accrued after June 4,1901, and was entered May 23, 1902.

From the opinion of the court below and the exceptions taken'to the decree by the learned solicitor for the appellant, it would seem that the real contest was between the claimant under the Eagan & Company judgment and the appellant’s lien last referred to. The proceeds of the sale were sufficient to pay the mortgage in full, the municipal lien entered April 3, 1901, and either the Egan & Company judgment or the other municipal lien. But there was not money enough to pay all of the claims. The exception taken by the appellant was to so much of the order and decree of the court as directs the payment of any part of the moneys in the hands of the sheriff to the judgment of P. Eagan & Company, until the said municipal liens are fully paid, with interest and costs.” The assignments of error, however, raise the question that the court erred in not applying the funds in the hands of the sheriff to the payment of the municipal lien of the appellant, filed May 23,1902. And also generally except to the decree of the court.

The appeal, therefore, raises in principle the precise question decided by this court in Martin v. Greenwood, 27 Pa. Superior Ct. 245, decided January 17, 1905. The argument can, therefore, be considered as a reargument of the questions determined in that case.

The able argument of the learned solicitor of the appellant has induced us to reexamine, with care, the questions raised and decided in Martin v. Greenwood. But we are not convinced that they were not correctly decided. If we adhere to the doctrine of that case, it disposes of the present appeal and requires the affirmance of the decree of the court below.

The forty-first section of the Act of June 4, 1901, P. L. 364, reads : This act shall apply only to claims wherein the right to file a lien-after the date of its approval; but the rights of other claimants, under existing laws, shall remain unaffected by its passage, and all claims properly filed thereunder are hereby validated.” In this section it is apparent that a word was omitted in transcribing the act between the words “lien” and “after” in the second line. We presume the blank ought to be filled by inserting the word “ accrued.”

In Martin v. Greenwood the municipal lien in question accrued and was filed after June 4,1901, and, therefore, what was there said in regard to the act of June 4, 1901, repealing all other general, local and special acts in regard to tax -and municipal liens, referred to such liens accruing after June 4, 1901. We did not there decide that prior acts were repealed as to liens accruing before June 4,1901.

In the case under consideration the learned court below reached the conclusion that the mortgage and the Eagan & Company judgment should be first paid out of the proceeds of the sale of the real estate bound by the mortgage- entered April 13, 1897, in preference to the lien which did not accrue and was not entered until after June 4, 1901, the date of the general act “ providing when, how and upon what property and to what extent liens shall be allowed for taxes and for municipal improvements,” etc. This conclusion is strictly in harmony with Martin v. Greenwood, 27 Pa. Superior Ot. 245 although that case had not then been decided. As to the appellant’s municipal paving lien which accrued and was entered after June 4,1901, it cannot be doubted that it is controlled by the act of June 4,1901, because the express terms of sec. 41 of that act repeals all other legislation as to such liens. The learned counsel for the appellant seeks to raise the question whether the sale on the judgment upon the mortgage, in the present case, divested the municipal paving lien entered May 23, 1902. Put we do not see that this question is material or necessary to be decided in this case. We may say, however, that whether divested or not, does not change our opinion that the money in question was properly applied to the payment of the Eagan & Company judgment; this for the reasons given in Martin v. Greenwood, 27 Pa. Superior Ct. 245. And the additional reason is suggested that sec. 2 of the act of June 4, 1901, makes taxes a first lien, while sec. 3 of the same act, which provides for municipal paving, sewer, etc., liens, does not say that they shall be first liens. The language is : “ shall be and they are hereby declared to be a lien on said property .... and be fully paid and satisfied out of the proceeds of any judicial sale of said property before any other obligation, judgment, claim, lien or estate with which the said property may become charged or for which it may become liable,” etc.

We do not decide that there is a legal difference between the tax and municipal liens on account of the difference of the language of sections 2 and 3. But it is Suggested that there is room for argument that the municipal sewer and paving liens do not stand precisely on the same ground as tax liens.

The learned court below declined to decide whether the appellant’s unpaid paving lien was divested by the sale upon the mortgage, but the opinion cites Bryan’s Appeal, 101 Pa. 389-393, and contains some quite persuasive reasoning that the lien was not divested. We decline, in the present case, to decide this question preferring to leave it open until a case is presented requiring a decision. Upon careful consideration, we are not persuaded to overrule or qualify the case of Martin v. Greenwood.

The assignments of error are dismissed and the decree is affirmed at the costs of the appellant.


author: Henderson, J.,

text:
    Johnson’s Estate.

      Appeals — Auditor’s report — Exceptions.
    Where one fails to file exceptions to the report of an auditor impeaching the correctness of his findings, or alleging the existence of facts which the evidence should have induced him to find, he cannot except to the report on these grounds on an appeal.

      Husband and wife — Murder of wife — Distribution of estate — Decedents’ estates.

    The fact that a husband has murdered his wife will not prevent him from inheriting her estate under the intestate laws.

      Auditors — Findings of fact — Survivorship of husband or wife.

    The fact that a husband survived the death of his wife, found by an auditor and approved by the court below, will not be disturbed except for manifest error.

      Argued May 11, 1905.
    Appeal, No. 200, April T., 1905, by R. L. Haslet, guardian of Andrew J. and Ellsworth B. Armstrong, from decree of O. C. Lawrence Co., Sept. T., 1904, No. 37, dismissing exceptions to auditor’s report in Estate of Emma Viola Johnson.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of Charles E. Mehard, Esq., auditor.
    The auditor found the facts to be as follows :
    Your auditor, from the testimony taken, notes of which are filed herewith, finds the following facts :
    1. That Emma Viola Johnson was the wife of Leonard M. Johnson; that they lived together after they were married until some time in March, 1903 ; that they separated and divided up their property; Emma Viola Johnson went one place and Leonard M. Johnson another. From the testimony the auditor is of the opinion that Emma Viola Johnson and Leonard M. Johnson separated by agreement; there is no testimony that he deserted her, and the fact that they divided their goods and effects leads the auditor to this conclusion. After they separated they had some trouble and Emma Viola Johnson had her husband, Leonard M. Johnson, arrested for assault and battery and surety of the peace. This happened on J une 29, 1903, almost three months after they had separated. Leonard M. Johnson was held for court, as the transcript filed herewith shows. There is no evidence as to what was done with the case by the court of Forest county. That they did not live together after their separation in March, 1903.
    2. Emma Viola Johnson made her home with Mrs. Clara Longstreth after her separation from her husband (see testimony, page 42) ; that on Tuesday, December 15,1903, about 11 o’clock A. M., Leonard M. Johnson went to the house of Mrs. Clara Longstreth, where his wife was staying, and after greeting his wife and Mrs. Longstreth (see testimony, page 44), he talked with his wife. They quarreled and Leonard M. Johnson pulled a revolver and shot his wife, the bullet grazing her temple. He shot her in the neck, or back of the ear, and the bullet came out of her cheek. He went out of the house and came back in again and shot his wife, Emma Viola Johnson, a third time, the bullet taking effect above the ear on the side of the head (see testimony, page 44). Emma Viola Johnson died as a result of her wounds on Tuesday, December 15, 1903, at 12 o’clock M.
    3. That about 3 o’clock on the same day, viz.: Tuesday, December 15, 1903, Leonard M. Johnson was found dead in the woods a short distance from the Longstreth residence, but his body was still warm and limp (see testimony, page 71). The weather was very cold, thermometer about the zero mark, and the ground covered with snow.
    4. That Leonard M. Johnson died by his own hand between 1:30 and 2 o’clock, Tuesday, December 15, 1903. The testimony of Dr. J. M. Martin, page 73, as well as the testimony of Dr. A. I. Hoon, on page 80, in which both say that after listening to the testimony of Sheriff Noblitt, who found the body, as to the condition the body was in, the temperature, etc., that they would say that he had been dead from one to one and one-half hours. Dr. Hoon said not less than one hour nor more than one hour and a half; that, counting back from the time the body was found, which was about 3 o’clock, would fix the time between 1:30 and 2 o’clock p. M.
    5. The principal fact in this case to determine is, which died first, Emma Viola Johnson or Leonard M. Johnson ? This must be determined from the testimony, and the auditor finds that Emma Viola Johnson died at between 11:20, the time-of shooting, and 12 o’clock. At any rate, she was dead at 12 m. Leonard M. Johnson died between 1:30 and 2 o’clock. Consequently he was living after the death of his wife, Emma Viola Johnson. The auditor reaches this conclusion from the testimony of Mrs. Clara Longstreth as to the time of the death of Emma Viola Johnson, and reaches the conclusion as to the time of the death of Leonard M. Johnson from the testimony of Dr. J. M. Martin and Dr. A. I. Hoon, both reputable physicians of long experience, and giving their testimony after having heard the circumstances as to the finding of the body of Leonard M. Johnson, its condition when found, the surroundings, the cause of death, the condition of the weather, etc., and they gave their opinions from the circumstances as they were related. There is no positive testimony as to the actual time of the death of Leonard M. Johnson, consequently the auditor has been guided in bis finding of the facts by the testimony of those who were experienced in the practice of medicine, and who were more familiar with medical jurisprudence than the auditor. The time of Leonard M. Johnson’s death can only be fixed from the circumstances as given in testimony. I also have been guided as to this conclusion somewhat by the evidence of John C. Offutt (see pages 78 and 79), an undertaker of long experience, and who has had a great many cases of suicides. Taking the particular testimony as above stated, and the testimony as a whole, the auditor cannot come to any other conclusion than that Emma Viola Johnson died before her husband, Leonard M. Johnson, intestate and without issue, and that Leonard M. Johnson afterward died intestate and without issue, and that Sarah Eastliek, his mother, is his only heir at law, his father being dead.

      T. F. Ritchey, with him Charles Martin, for appellant.
    With no circumstances appearing which survive the other, the right to the estate will be determined as if death occurred at the same time : Willbor’s Case, 51 L. R. A. 863 ; Russell v. Hallett, 23 Kan. 276 ; Clymer’s Estate, 16 W. N. C. 36.
    An appellate court does not hesitate to reverse a judgment entered upon a verdict based upon insufficient evidence, and the same is true as to an auditor’s finding of fact: Fehl’s Estate, 13 Pa. Superior Ct. 601 ; Fiscus’s Estate, 13 Pa. Superior Ct. 615 ; Selser’s Estate, 8 Pa. C. C. Rep. 254; Reading Iron Works, 150 Pa. 369; McAleer v. McMurray, 58 Pa. 126; Cake’s App., 110 Pa. 65 ; Hindman’s App., 85 Pa. 466.

      Virgil L. Johnson, with him Wylie Me Caslin, for appellee,
    cited: Carpenter’s Estate, 170 Pa. 203.
    October 9, 1905:
   Opinion by

Henderson, J.,

Emma Viola Johnson was shot by Leonard Johnson, her husband, on December 15, 1903, from which wound she died about half an hour later. The shooting occurred about fifteen minutes after eleven o’clock in the forenoon at the house of Orlando Longstreth, where she was staying. When the shooting occurred Mrs. Longstreth ran to one of the neighbors working in a field, who returned to the house with her.

When they arrived Johnson had disappeared. This was about twenty-five minutes past eleven. At about three o’clock or later on the afternoon of the same day the dead body of Johnson was found at a place about 1,700 feet from the Longstreth house with a gunshot wound in the head under circumstances clearly indicating that he had killed himself. Emma Yiola Johnson died intestate and without issue, and the present controversy grows out of the distribution of her personal estate. The appellant presents three objections to the action of the court below: (1), Leonard Johnson deserted his wife, and therefore forfeited his right to inherit her estate; (2), having murdered his wife, public policy forbids that he inherit any part of her estate ; (3), Emma Yiola Johnson survived her husband, and therefore the estate descended to her heirs, of whom the appellant is guardian.

The auditor found that there was no evidence of the desertion of his wife by Leonard Johnson. No exception was filed to this finding, and the appellants cannot now be heard to question its conelusiveness. Where one fails to file exceptions to the report of an auditor impeaching the correctness of his findings or alleging the existence of facts which the evidence should have induced him to find, he cannot exoept to the report on these grounds on an appeal: Dickey’s Appeal, 115 Pa. 73. We have examined the evidence on this subject, however, and find that the action of the auditor was fully Avarranted by the testimony.

The second objection is answered by Carpenter’s Estate, 170 Pa. 203. Nothing could be profitably added to the clear and decisive opinion in that case.

The evidence shoAvs that the wife died about twelve o’clock. Mrs. Longstreth testified that she died at twelve o’clock, but it appears from other parts of her evidence that she discovered at twelve o’clock that her pulse had ceased to beat. Just how long before she had made an examination of the pulse she was notable to state. That Leonard Johnson was alive for some time after he had wounded his wife is apparent from all the evidence. When his body was found it was warm and limp, and two physicians, who appear to have had experience on that subject, testified from the description given as to the condition, of the body when found that lie had probably been dead from an hour to an hour and a half. Whether Johnson went directly from the house to the place where his body was found does not clearly appear. The sheriff of the county who made an examination of the premises found tracks which led from the back door nearly opposite the barn. Samuel Stewart, who was on the ground before the sheriff and who accompanied the sheriff in the search for Johnson, said, ‘£ We found the tracks down by the barn where he went across the field, ” and that it was perhaps six or eight rods from the house where he first found the tracks. Assuming that Johnson went directly from the house to the place where his body was found, it does not follow as a necessary conclusion that he killed himself immediately on his arrival at that place, although two of the witnesses examined say that there were no tracks or evidences of movements where he was found. He was apparently sitting at the time he killed himself.' The conclusion of the auditor, confirmed by the court below, that Johnson survived his wife, is supported by evidence, and. we are not persuaded by the argument of the learned counsel for the appellant that it is not justified by the testimony. Facts found by an auditor and approved by the court below will not be disturbed except for manifest error : Nauman’s Appeal, 116 Pa. 505. The burden is on the appellant to satisfy us of the error of the court below, and this he has failed to do.

The decree is affirmed.


text:
    Stewart’s Estate.

      Decedents’ estates — Claim for services■ — Auditor’s report — Findings of fact — ■ Evidence.

    The finding by an auditor that a decedent had employed her brother to take charge of her affairs, and that his services were worth the sum which he claimed, will not be reversed where such finding is based on sufficient evidence and is confirmed by the court below, and no manifest error is made to appear.
    Argued May 16, 1905.
    Appeal, No. 1, March T., 1904, by Mary J. Gallagher* from decree of O. C. Lycoming Co., dismissing exceptions to auditor’s report in Estate of Ann E. Stewart, deceased.
    Before Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of H. W. Whitehead, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      Thomas M. B. Hieles, for appellant.

      W. 0. Gilmore, for appellee.
    October 9, 1905:
   Opinion by

Henderson, J.,

The finding of an auditor approved by the court below will be sustained on appeal if there is any evidence which warrants it: Fessenden’s Estate, 170 Pa. 631. Applying this rule to the pending case, the appellant is called upon to make it appear that there was no evidence to justify the auditor in his conclusion that the accountant was entitled to compensation for services rendered to the decedent at her request, and that the amount charged was reasonable. There is direct and positive evidence that James S. Stewart, who was a brother of the decedent, had been living for several years in California, and that he returned to Lycoming county after his sister was hurt, to take charge of her business at her request and that he had charge of her affairs during the remainder of her life. There is also evidence that his services were worth the sum charged therefor. The auditor’s conclusion is not only supported by evidence but by the weight of competent evidence on these propositions. The witnesses were before him, their character and credibility were subjects for his consideration. The very earnest argument of the appellant’s counsel has not convinced us that the evidence did not warrant the action of the auditor. The decree is, therefore, affirmed.


author: Hendebson, J.,

text:
    Euwer, Appellant, v. Greer.

      Contract — Bailment—Sale—Interest.
    A contract designated as one of renting only and not of sale, which, provides for a letting for hire for a .fixed amount during a definite term, and for a return of the leased chattels to the lessor at the expiration of the term, is a contract of bailment; and it is immaterial that the contract provided for interest on overdue payments.
    Argued May 10, 1905.
    Appeal, No. 126, April T., 1905, by defendants, from judgment of C. P. Lawrence Co., March T., 1904, No. 93, on case stated in suit of J. N. Euwer’s Sons’ Sons v. Josiah Greer and John F. Greer, trading as J. Greer & Son.
    Before Beater, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Case stated to determine liability on a contract.
    The case stated was as follows :
    And now, April 5, 1904, it is hereby agreed by and between the parties to the above suit that the following case be stated for the opinion of the court.
    If the court be of the opinion that the contract attached to and made a part of plaintiff’s affidavit of claim, and marked Exhibit 44 A ” be a contract of lease or bailment, then judgment to be entered for the plaintiffs generally for the goods and chattels described in the writ, but if the court be of the opinion that the above-mentioned contract is a contract of conditional sale, then judgment to be entered for the defendants for the •sum of $59.25. The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein.
    E. M. Underwood.
    Attorney for Plaintiffs.
    E. F. G. Harper,
    Attorney for Defendants.
    “ EXHIBIT 4 A ’ ATTACHED TO PLAINTIFFS’ STATEMENT.
    44 This agreement, made June 23,1903, between J. N. Euwer’s Sons’ Sons of New Castle, Pennsylvania, hereinafter called the bailors, of the first part, and J. P. Miles, Elm street, 7th ward, hereinafter called the bailee, of the second part.

      “ Witnesseth, that the said bailors in consideration of the agreements and stipulations hereinafter mentioned to be kept and performed by the bailee, has this day rented to the said bailee the articles mentioned and set out in the schedule upon the back of this agreement, and hereby made a part hereof, and valued at $250 more or less, for a period of six months from the date hereof for the sum of $250 payable as follows: $20.00, the receipt of which is hereby acknowledged, and the balance to be paid promptly at the office of the said bailor in New Castle, Pennsylvania, within' six months in suitable payments per month, but not less than $15.00 per month during the continuance of this agreement.
    “ The said bailee covenants and agrees to punctually pay the said rent as above specified to the said bailors on the several days and times as the same shall become due ; to take good care of the said property; that he will not attempt to sell or rent the property, or assign this agreement, or in any way part with the possession of the said property, or any part thereof from the said premises where the same is delivered to said bailee; that he will at any time, when so required, exhibit the said property to the said bailors or their agents; and will give immediate notice to said bailors of any distress, levy or execution issued upon or against said property.
    “ It is distinctly understood and agreed between the parties hereto that this is a contract of renting only, and not a sale, conditional or otherwise.
    “ And in case default be made in any of the payments as above agreed upon, or in casé of the breach of any of the covenants aforesaid, or in case a petition in bankruptcy be filed by or against the said bailee, the said bailee agrees to forthwith deliver said property to said bailors, or will permit the said bailors or their agents to enter into or upon any premises where any of said property may be, and without let or hindrance take away the same, using such force as may be necessary in the removal thereof, hereby releasing all errors and right of action which said bailee may have for such forcible taking. It is further agreed that all money paid or payable to the said bailors prior to said repossession shall be retained or recoverable by the said bailors as rent or hire for the use of said goods without abatement or reduction.

      ‘ “ And the said bailee further agrees that upon default being made in any of the payments of rent as aforesaid for ten days after the same shall be due and payable, the whole of the said rent unpaid may at the option of the said bailors become due and payable forthwith, and the said bailee hereby empowers any attorney of any court of record within the United States to appear for him and confess judgment against him for the amount 'of the rent unpaid, waiving stay of execution, right of appeal, error, inquisition and all exemption laws, with ten per cent added as attorney fees for collection.
    “ It is further agreed by the said bailee that he will at the expiration of the time for which the goods are rented, return the same to the bailors, in good order and condition, and that upon the return of the goods as aforesaid, the payment of all the money due and payable under this agreement, and the performance of all the covenants herein contained, this agreement shall cease and determine.
    “ It is also agreed that if at any time during the term of this bailment, or at the end thereof, the said bailee desires to purchase the said goods upon the payment of such sum as would amount, with the previous payment of rent, to the sum of §260 shall have the right to dó so, and shall receive a bill of sale for the same.
    “ Witness our hands and seals the date first above written.
    “ Interest at six per cent will be added to this bill. If paid within ninety days, a discount will be given.
    “ J. P. Miles, [l. s.]
    “ Witness :
    “H. I. Watson.”
    The court, in an opinion by Walleb, P. J., entered judgment for defendant on case stated.

      Error assigned was the judgment of the court.

      E. M. Underwood, for appellants.

      Aaron L. ffazen, with him E. E. Gr. Haroer and John P. Jjoekhart, for appellees.

      October 9,1905:
   Opinion by

Hendebson, J.,

This case was heard in the court below on a case stated, and turns on the interpretation to be given to the contract attached to the plaintiff’s statement of claim. This contract is in form a lease of the chattels therein described, and creates a bailment. It provides for a letting for hire for a fixed amount during a definite term, and for a return of the leased property to the lessor at the expiration of the term. It is also expressly • provided that the contract is one of renting only and not a sale, conditional or otherwise. This is not a controlling consideration, as the intention of the parties is to be determined from the whole contract, but is of value in connection with the other provisions of the contract in determining the character of the title acquired.

The agreement of the parties is within the doctrine of Enlow v. Klein, 79 Pa. 488; Ditman v. Cottrell, 125 Pa. 606; Lippincott v. Scott, 198 Pa. 283;. Stiles v. Seaton, 200 Pa. 114; Harris v. Shaw, 17 Pa. Superior Ct. 1, and Painter v. Snyder, 22 Pa. Superior Ct. 603.

The provision in the contract for the payment of interest does not change the character of the agreement. It is somewhat ambiguous in form, but should be construed in connection with the other stipulations for the payment of money. A charge for interest on overdue payments is not inconsistent with the preceding contract of bailment. Interest was contracted for in Ditman v. Cottrell supra and Lippincott v. Scott, supra.

The judgment is reversed and judgment is now entered on the case stated in favor of the plaintiff for the goods and chattels described in the writ.


author: Smith, J.,

text:
    Globe Mutual Building and Loan Association v. Schutte, Appellant.

      Building and loan associations — Dues and premiums — Mortgage debt— Appropriation of payments.

    Where the by-laws of a building and loan association provide that payments upon account of dues and premiums shall be credited on the stock, and the pass book of a member shows credits of weekly payments and profits to stock, the. member cannot, after having permitted such payments to be so appropriated and credited, claim that he had elected to have such payments appropriated to his mortgage indebtedness, and that such election on his part had been assented to by the association.
    While possibly an appropriation of dues and premiums to a mortgage indebtedness might be sustained under some circumstances, those circumstances should be such as to leave no doubt whatever as to the assent of both the association and the member to the agreement.
    Argued April 11, 1905.
    Appeal, No. 121, April T., 1905, by defendant, from judgment of O. P. No. 2, Allegheny Co., July T., 1902, No. 844, on verdict for plaintiff in case of Globe Mutual Building and Loan Association of Pittsburg, now in the hands of the Safe Deposit and Trust Company of Pittsburg, Receiver, v. Johanna Schutte, Administrator c. t. a: of Henry Schutte, deceased.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Frazer, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,220. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      John E. Kuhn, for appellant.
    The precise point in dispute in this case has been ruled in favor of defendant by the Supreme Court, in the case of York Trust, Real Estate & Deposit Company v. Gallatin, 186 Pa. 150 ; Erthal v. Glueck, 10 Pa. Superior Ct. 402.
    • Charles D. Gillespie, with him Willis F. McCook, for appellee.
    —By becoming a borrower, a stockholder does not alter his standing as such; he is still a stockholder: Endlich on Building Associations, secs. 148, 149 and 150; Charles Tyrrell Loan & Bldg. Assn. v. Haley, 139 Pa. 476 ; McGrath v. Savings & Loan Association, 44 Pa. 383. And payments on stock by a borrower are not payments on the mortgage debt: Link v. Germantown Building Association, 89 Pa. 15 ; Spring Garden Association v. Tradesmen’s Loan Association, 46 Pa. 493. And a stockholder is bound to share in the losses as well as the gains whether he is a borrower or not: Endlich on Building Associations, secs. 104, 105 and 106 ; Knoblauck v. Robert Blum Bldg. & Loan Association, 25 P. L. J. 39; Wittman v. Concordia Building Association, 13 Phila. 95; McGrath v. Hamilton Savings & Loan Association, 44 Pa. 383. And where stock has been declared matured, losses being then unknown to the directors and the stock declared matured when in fact it had not, the mortgage will not be satisfied until the borrowing stockholder has contributed his share of losses : Mechanics’, etc., Bldg. & Loan Association v. Swartz, 5 Pa. Dist. Rep. 318. And if the mortgage has been improperly satisfied in such case, the satisfaction will be stricken off: Callahan’s Appeal, 124 Pa. 138.
    October 23, 1905:
   Opinion by

Smith, J.,

On June 6, 1891, Henry Schutte borrowed from the Globe Mutual Building and Loan Association $1,800, giving as security a bond and mortgage in the manner and form prescribed by the constitution and by-laws of the association ; also pledging the weekly dues and premiums accruing on nine shares of its capital stock. He paid the dues and premiums until on or about March 1, 1894, when the payments, amounting to $800, were credited on his loan, and the nine shares of stock were surrendered to the association; whereupon he subscribed for five shares of stock, and agreed that the mortgage should remain as security for $1,000. He continued paying the dues and premiums on five shares until July 30, 1900. In the condition of the bond it is provided that the obligor shall pay to the association the debt of $1,000 in the manner and form prescribed by the constitution and by-laws of said association, with interest thereon, payable on Saturday of each week, together with the weekly dues and premiums on five shares of the capital stock of the association. Upon the back of the bond is the following indorsement:

“For value received, I, Henry Schutte, the within-named obligor, do hereby assign, transfer and set over unto the Globe Mutual Building and Loan Association of Pittsburgh the five shares of stock held by me in said association as collateral security for the payment of the debt mentioned in the within bond, and further I do hereby elect to treat all past and future payments of dues and premiums on said stock as credits on the within bond and the mortgage referred to below, and authorize and direct the officers of said association to so appropriate and credit the same.

“ (Signed) Henry Schutte.”

On March 14, 1901, the Safe Deposit and Trust Company of Pittsburg was appointed permanent receiver of the association. On the death of Henry Schutte, August 21, 1901, his widow, Johanna Schutte, became administratrix of his estate. On June 30, 1902, the receiver issued a scire facias to foreclose the mortgage. Upon the trial, April 4, 1904, the court directed a verdict for the plaintiff for the amount of the bond, with interest, $1,220. It is admitted at bar that the payment of $170.10 was overlooked, and should now be deducted from the verdict,.leaving the judgment to stand for $1,049.90.

While the plan upon which building and loan associations are conducted is somewhat peculiar, it is not involved or confusing, but is governed by the ordinary rules of business and fair dealing. “In carrying out the'plan on which building associations are organized and conducted, it is not intended that a stockholder who borrows of the association will discharge the debt he incurs by direct payments on account of it. He pays at stated periods the dues on his stock, the interest on the money borrowed, and, when the premium bid for the loan has not been deducted, the installments on it. When by the receipt of dues, interest, premiums, and fines for nonpayment of dues, all of the stock of the association or of the series to which the borrower’s stock belongs, becomes full paid or matured, the value of his stock equals the amount of his debt, and the transaction is then ended by the surrender of the stock by him and the cancellation of his obligation by the association: ” Freemansburg Bldg. & Loan Ass’n v. Watts, 199 Pa. 221.

This association was to be governed by the acts of assembly relating to building and loan associations, with like privileges and responsibilities of its members. Payments received from all sources go into the general fund of the association, to be periodically divided as profits among all the shareholders, according to the amount of stock held by each. With the appointment of a receiver the business of the association, as such, ceased; nothing then remained but to wind up its affairs in such a manner as to do equity to the creditors, and between the members themselves, according to their rights and liabilities respectively. In the present case the amount due the association was $1,000, and Mr. Schutte, under his contract, was required to pay as other stockholders. As a borrower, he should be charged with his actual indebtedness, with interest according to his contract before participating like non-borrowers, and should bear his share of the losses. But to allow him credit for payments on his stock as now contended for, would enable him to escape this responsibility and throw it wholly on the non-borrowers. In this common enterprise the stockholders must bear their share of the losses and profits according to their contract and respective holdings. Further on this question Judge Frazer, in the opinion overruling the motion for a new trial, very pertinently said : “ While possibly under the case of York Trust, etc., Company v. Gallatin, 186 Pa. 150, an appropriation of dues and premiums to a mortgage indebtedness might be sustained under some circumstances, those circumstances should be such as to leave no doubt whatever as to the assent of both parties to the agreement. In this case, while Mr. Schutte by the indorsement upon his bond elects to have his payments on account of stock credited to his indebtedness, we have nothing before us to indicate an agreement upon the part of the association to so treat such payments. On the contrary, in the body of the bond it is provided that payments shall be made in accordance with the constitution and by-laws of the association, which provides, among other things, that a borrower must be a stockholder, and stockholders are required to make payments weekly of twenty-five cents on each share of stock held by them until such share shall be worth $200. That the association did not treat the payments made by Mr. Schutte as payments on account of his loan is evidenced by the fact that such payments were credited in the books of the association and also in his pass book as payments upon account of dues and premiums, and it also appears by both the books of the association and the pass book that he was credited on the stock with the profit accruing to his share. The pass book in his possession showed these weekly credits, and also the profits realized upon his stock, and having permitted these payments to be so appropriated and credited, and having received his dividends, it seems to us that such action upon his part was a ratification of the appropriation of his payments made by the association, and sufficient notice to him that the association did not recognize his election to have the payments appropriated to the loan in direct conflict with the requirements of the by-laws of the association. It is clear to us that this case is ruled by Freemansburg Bldg. & Loan Association v. Watts, 199 Pa. 221. In that case it is said: “ A member who borrows from the association remains a stockholder under a duty to pay the dues on his stock regularly, and subject to a penalty for nonpayment. The payment of these dues is an indirect payment on account of the loan, as the payment increases the value of his stock, and thus adds to the collateral pledged, by means of which payment is to be made in the end. But if these payments are considered as direct payments, the result is that he has paid nothing on account of his stock, notwithstanding his obligation to do so; he has been charged with fines for nonpayment when payment was not required ; his installments of interest have remained the same, although his debt has been reduced by regular payments; his stock, on which he has paid nothing, has participated in the profits which have accrued to all the stock alike; and in the case of the insolvency of the association we have the rank injustice that the burden of the whole loss is cast upon the non-borrowing members.” If the defendant’s contention prevailed, Mr. Schutte would receive dividends upon the stock upon which he has paid nothing, and also the “ rank injustice ” of his being relieved from his share of the burden of the association’s loss.

With the modification suggested, the judgment is affirmed.


text:
    Commonwealth v. Nailor, Appellant
    (No. 1).

      Criminal law — Abortion—Evidence.
    On the trial of an indictment for abortion, a conviction cannot be sustained where there was no evidence from which the jury could have found that the defendant at the time of the alleged offense, knew or believed that the woman, on whom the instrument is alleged to have been used, was then pregnant, or that the defendant understood or supposed that the instrument was used for the purpose of producing a miscarriage.

      Criminal law — Indictment—Time.
    No conviction can be sustained on an indictment found more than five months prior to the date on which the indictment charges that the offense was committed.
    In an indictment, some specific date must be stated as that on which the offense was committed. It is not necessary, however, to prove the time as laid, except when time enters into the nature of the offense, or the date is to be proved by matter of record, as when perjury is charged to have been committed in a proceeding in a court of record. It is sufficient that the date laid is one on which the offense might have been committed, and that the offense, if committed on such date, is by law punishable at the time of finding the indictment. Thus the date laid must be prior to the day on which the indictment is found; it must be within the period fixed by the statute of limitations for the finding of the indictment; and, in the case of a statutory offense, it must be subsequent to the enactment of the statute. If the time laid is uncertain or impossible, or is laid on different days when the offense is a single act, or is subsequent to the finding of the indictment, or anterior to the statute creating the offense, or makes the indictment inconsistent with itself, it is a fatal objection even after verdict.
    Argued May 9, 1905.
    Appeal, No. 243, April T., 1905, by defendant, from judgment of Q. S. Butler Co., June T., 1904, No. 29, on verdict of guilty in case of Commonwealth v. Lizzie Nailor.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Indictment for abortión. Before Galbreath, P. J.
    The defendant filed a motion to quash alleging the following reasons:
    1. Because the bill of indictment is bad for duplicity, is vague and uncertain, in that it charges the defendant with the unlawful use of a certain instrument with intent to procure a miscarriage, also with unlawfully aiding and assisting and using the same on the body of said Annie Phillips.

      2. Because the bill of indictment is not charged in the language of the act of assembly, in that it does not charge in the first count that Annie Phillips was quick with the child.
    3. Because there is no information under oath upon which to base the second count in bill of indictment for attempting to procure a miscarriage.
    4. Because the first count charges two separate and distinct crimes, to-wit: That the defendant did unlawfully use a certain instrument on the body of Annie Phillips, she then and there being pregnant, with intent to procure a miscarriage resulting in death, and second, that defendant did unlawfully use a certain instrument on the body of one Annie Phillips with intent to procure a miscarriage resulting in death and she then and there being supposed and believed to be pregnant.
    5. Because the second count is uncertain and invalid, not being charged in the language of the act of assembly in that it charges that Annie Phillips was supposed and believed to be pregnant, and it does not charge that she was pregnant.
    The court overruled the motion to quash.
    At the trial the court refused binding instructions for defendant.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were (1) refusing to quash the indictment; (4) in refusing binding instructions for defendant; (6) in overruling defendant’s motion to arrest the judgment.

      Lev Me Question and Everett L. Ralston, with them A. T¡ Scott, for appellant.

      John R. Henninger, for appellee.
    October 23,1905:
   Opinion by

Smith, J.,

In an indictment, some specific date must be stated as that on which the offense was committed. It is not necessary, however, to prove the time as laid, except when time enters into the nature of the offense, or the date is to be proved by matter of record, as when perjury is charged to have been committed in a proceeding in a court of record. It is sufficient that the date laid is one on which the offense might have been •committed, and that the offense, if committed on such date, is by law punishable at the time of finding the' indictment. Thus the date laid must be prior to the day on which the indictment is found; it must be within the period fixed by the statute of limitations for the finding of the indictment; and, in the case of a statutory offense, it must be subsequent to the enactment of the statute. If the time laid is uncertain or impossible, or is laid on different days when the offense is a single act, or is subsequent to the finding of the indictment, or anterior to the statute creating the offense, or makes the indictment inconsistent with itself, it is a fatal objection even after verdict. These principles are laid down, and the authorities cited, by the leading English commentators on criminal law, from Hawkins to Chitty, and by Wharton, Bishop, and other' American writers on the subject.

In the case before us, the first count of the indictment charges the defendant with aiding in the unlawful use of an instrument, with intent to produce a miscarriage, and, in consequence thereof, the death of the person on whom the instrument was used; the second count charges the like act and intent, but without alleging a fatal result. The first count, however, was practically abandoned, from the absence of evidence that death was the consequence of the act, and a verdict of guilty was found on the second count.

It is unnecessary to consider the specifications in detail, since two errors appear, either of which we regard as fatal to the judgment. First, there was no evidence from which the jury could have found that the defendant, at the -time of the alleged Offense, knew or believed that Annie Phillips, on whom the instrument is alleged to have been used, was then pregnant, or that the defendant understood or supposed that the instrument was used for the purpose of producing a miscarriage. The physician who visited the patient a short time previous to the alleged operation testified that in his opinion, from the symptoms in the case, she was then pregnant, but it does not appear that this opinion was communicated to the defendant. The statements made by the defendant, some time after the operation, throw no light on her knowledge or belief respecting' its character or purpose at the time of its performance; and, as the trial judge correctly instructed the jury, without knowledge or belief on her part that the operation was designed to produce a miscarriage there could be no conviction. While the evidence for the defense showed that the only operation performed in the case was for the replacement of the uterus, which had become displaced, the evidence for the commonwealth left more than a reasonable doubt respecting the character or purpose of the operation, and the existence of the essential elements of guilt on the part of the defendant. Under the law and the evidence, a verdict of not guilty should have been directed; and the fourth specification is therefore sustained.

Further than this, there is a fatal defect in the indictment. In the second count, on which the defendant was convicted, the offense is charged as having been committed “ on the tenth day of November, A. d. one thousand nine hundred and four.” The indictment was found on June 8, 1904, more than five months previous to this date, and the conviction took place on September 16, 1904, nearly two months previous. When the indictment was found, it was impossible for the offense to have been committed on the date laid, and the dates make the indictment inconsistent with itself. Besides the authorities already referred to, an instance in point, in our own state, is found in Pennsylvania v. McKee, Addison, 83. There the offense was charged as having been committed on June 27, 1792, while the indictment was found at March sessions, 1791, and the trial took place on June 14, 1792. On this ground judgment was arrested. Here, even if the judgment could be sustained on the evidence, it should have been arrested for this defect in the indictment.

Judgment reversed and defendant discharged from her recognizance.


text:
    Commonwealth v. Nailor, Appellant.
    (No. 2).

      Criminal law — Indictment—Distinct counts — Practice, Q. S.

    When an indictment contains more than one count each count forms a distinct indictment though the counts are signed collectively by the district attorney. If each count is in form a complete indictment, signed by the district attorney, the instrument is in law an indictment containing two counts.
    Where each of two counts is in form a complete indictment signed by the district attorney, and the two papers are fastened together with brass rivets under one cover, they may be considered as a single indictment containing two counts.
    When a written instrument is contained on two or more sheets, it may be necessary that these should be fastened together to show their relation. The manner in which this is done is not material; it is sufficient that they are so attached to each other as to show that they are parts of one instrument.

      Criminal law — Indictment—Dates—Perjury.
    The date in an indictment charging an offense must not be uncertain, and two dates must not be laid for an offense completed on a single day.
    Where an indictment for perjury charges that a coroner’s inquest was held on a day named at which the defendant was sworn and examined, and that an adjournment of the inquest was held on a later day mentioned when the defendant was further examined, and that the defendant “then and there” falsely swore and testified, the indictment is fatally defective.

      Criminal law — Indictment—Statutory offense — Practice, Q. S. — Perjury.
    When a statute describes, defines or creates an offense, and fixes a penalty, the indictment must charge the offense, substantially in the statutory language.
    An indictment for perjury which, after negativing the truth of the defendant’s testimony avers that she well knew that it was “false, perjured and corrupt, contrary to the form of the act of the general assembly,” but fails to aver that the defendant in the manner and form aforesaid, then and there willfully and corruptly did commit willful and corrupt perjury, is fatally defective, inasmuch as the charge is no offense, either at common law, or under the Act of May 31, 1860, sec. 14, P. L. 382.

      Criminal law — Indictment—Date—Perjury.
    An indictment for perjury charging the date of the offense as prioi to the finding of the indictment, subsequent to the statute describing the offense, and within the period of the statute of limitations, is well laid, although the date alleged is subsequent to the complaint and hearing on which the count is based.

      Criminal law — Perjury—Trial—A bortion.

    A defendant may be tried for perjury pending another indictment for abortion, where it appears that the false testimony was given at a coroner’s inquest, but that the proceedings for perjury were not commenced by the commitment of the defendant by the coroner, on a verdict charging her with having caused the death under investigation, but were commenced some days afterwards as a totally distinct proceeding.

      Issue on coroner’s inquest.

    On a coroner’s inquest the issue is whether the death was caused by unawful means.

      Criminal law — Perjury—Coroner’s inquest — Materiality of testimony.

    It is the duty of a coroner to hold an inquest super visum corporis when there is reasonable ground to believe that death was caused by unlawful violence or other undue means. Should the evidence before him fail to show such cause of death, his jurisdiction in the premises is not thereby ousted, yet, upon a charge of perjury on the part of a witness, the materiality of the testimony which is the subject of the charge remains to be considered. To sustain the charge of perjury, the testimony must be not only false," but material to the issue.
    When it is shown at a coroner’s inquest that death was not due to unlawful means, evidence relating to some act which in no way contributed to the death is not material to the inquiry, and testimony on such a point lacks the materiality which is an essential ingredient to perjury.
    Argued May 9, 1905.
    Appeal, No. 244, April T., 1905, by defendant, from judgment of Q. S. Butler Co., June T. 1904, No. 28, on verdict of guilty in case of Commonwealth v. Lizzie Nailor.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Indictment for perjury. Before Galbreath, P. J.
    From the record it appeared that the defendant moved to quash the indictment.
    1. Because the bill of indictment is not based upon the information made before the committing magistrate and warrant issued in pursuance thereof, to-wit: April 22,1904, upon which defendant was arrested and after hearing gave bail for appearance to court, in that the record shows the information was made and warrant issued April 22, 1904, charging the perjury to have been committed on April 8, 1904, and indictment charges the offense to have been committed on April 22, 1904, being a separate and distinct offense for which defendant was never arrested nor preliminary hearing awarded.
    2. Because the bill of indictment purports to have been based upon an information made April 28, 1904, for which no warrant was ever issued by the committing magistrate, arrest made or any preliminary hearing held or awarded and is, therefore, invalid.

      3. Because the record and bill of indictment shows that no warrant was issued or arrest ever made for the alleged crime set forth in the bill, the county detective having made a second complaint six days after the plaintiff’s arrest for the alleged crime set forth in the indictment, but no warrant was ever issued or arrest made pursuant to said complaint made April 28, 1904, being six days after defendant’s arrest.
    4. Because two.separate and distinct charges of perjury are set forth in the bill of indictment to-wit: the one alleged to have been committed on April 22, 1904, and the other on June 6, 1904. And neither of which is based upon an information made before the committing magistrate. The only information upon which the warrant was issued and arrest made being dated April 22, 1904, charging the offense to have been committed April 8, 1904.
    5. Because what purports to be a bill of indictment is vague, uncertain and indefinite, in that it does not sufficiently inform the defendant of the nature and cause of the accusation against her, nor does not show upon its face that the witnesses were sworn before the grand jury, nor that a true bill was found, there being indorsed on the cover of the indictment proper the names of witnesses and “ a true bill ” indorsed thereon by the foreman, said cover being pinned to the indictment. But what purports to be a bill of indictment is in truth and in fact two separate and independent indictments, charging different dates and both signed by the district attorney, and returned by the foreman to the court as one bill. No indorsement of the witnesses’ names or prosecutor’s appears on either of the bills. The only declaration that witnesses were called by the grand jury and sworn is the indorsement on the said cover of said indictments of eight witnesses.
    6. Because the indictment does not show on its face that the defendant was sworn in a judicial proceeding, nor that the testimony was material to that issue. Nor does it sufficiently set forth the character of the issue nor the purpose of the inquisition, and the bill therefore is bad for duplicity and uncertainty. Nor can perjury be maintained upon incompetent testimony.
    7. Because the defendant is indicted for performing an abortion on Annie Phillips which was the subject of inquiry before the coroner’s inquest which bill is still pending and undetermined.
    The court overruled the motion to quash. [1]
    At the trial the jury returned a verdict of guilty upon which judgment of sentence was passed.

      Error assigned among others was in overruling motion to quash the indictment.

      Lev McQuistion and Everett Ralston, with them A. T. Scott, for appellant.
    The indictment should state specifically the time and place of offense. In an indictment for perjury the day on which the offense is committed must be precisely stated: U. S. v. Bowman, 2 Wash. C. C. Rep. 328; U. S. v. McNeal, 1 Gallison, 387.
    The court erred in refusing to quash the bill, because it did not show on its face that the testimony before the coroner was material to the inquiry pending: County of Lancaster v. Mishler, 100 Pa. 624; Com. v. Wood, 2 Pa. Dist. Rep. 823; Com. v. Ludwig, 19 Lanc. Law Rev. 147 ; Com. v. Jermon, 29 Legal Int. 165; Com. v. Wilson, 11 Lanc. Bar, 114; Com. v. Rupple, 1 Pa. C. C. Rep. 663; Com. v. Kuntz, 2 Clark, 375.

      John It. Henninger, for appellee.
    October 23, 1905 :
   Opinion by

Smith, J.,

When an indictment contains more than one count, each count forms a distinct indictment, though the counts are signed collectively by the district attorney. Here each count is in form a complete indictment, signed by the district attorney. But the legal effect of this joinder is not changed by the form of the counts, or by, the district attorney’s signature to each ; the instrument remains in law an indictment containing two counts. And when a written instrument is contained on two or more sheets, it may be necessary that these should be fastened together to show their relation. The manner in which this is done is not material; it is sufficient that they are so attached to each other as to show that they are parts of one instrument. In the present case this lias been done, and the action of the grand jury and the court has been on the connected sheets as a single indictment. Hence the appellant’s objections on. this point are not well founded.

The legal rules relating to the date of the offense, as laid in an indictment, have been sufficiently stated in the preceding case, which was based on the same transaction from which the indictment in the. present case arose. One of these rules is that the date must not be uncertain, and that two dates must not be laid for an offense completed on a single day. Tested by this rule, the first count of the indictment before us is fatally defective. In its essential points, it avers the holding of a coroner’s inquest on April 7, 1904, in which the defendant was among the witnesses sworn and examined; an adjournment of the inquest to April 22, when the defendant was further examined; it then sets forth the matters which it was material for the inquest to know; and follows with the averment, “ That the said Lizzie Nailor, sworn as aforesaid, did then and there unlawfully, willfully, corruptly and falsely swear and testify ” to the matters assigned as perjury. Here are two dates, to which, in the structure of the indictment, the words “ then and there,” as the time and place of the offense, equally apply; • hence the date to which they refer is wholly uncertain. If they may be understood as referring to both, the result is a charge of the same offense on each day, and is, in effect, duplicity, as charging two offenses in one count. A further defect appears, which is of itself fatal. It is a settled principle that when a statute describes, defines,' or creates an offense, and fixes a penalty, the indictment must charge the offense, substantially, in the statutory language. Section 14 of the penal code of March 31,1860, P. L. 382, provides that “ If any person shall willfully and corruptly commit willful and corrupt perjury,” the penalty therein prescribed shall be imposed. Here the count under consideration, after negativing the truth of the defendant’s testimony, avers that she well knew that it was “ false, perjured and corrupt, contrary to the form of the act of the general assembly,” etc., but fails to aver that the de-’ fendant, in manner and form aforesaid, then and there willfully and corruptly did commit willful and corrupt perjury. It charges no offense, either at common law or under the statute. As to this count, therefore, the judgment cannot be sustained.

In the second count, June 6, 1904, is laid as the date of the offense charged. This is subsequent to the complaint and hearing on which the count is based. Yet being prior to the finding of the indictment, subsequent to the statuté describing the offense and fixing the penalty, and within the period prescribed by the statute of limitations, it is well laid, according to the principles referred to in the preceding case.'

The contention that the defendant cannot legally be tried for the perjury charged, pending the indictment for abortion, cannot, under the circumstances, be sustained. The rule that the proceeding in which, it is charged, the perjury was committed, must be ended before the accused can be tried for perjury, so far as it applies to the case in hand, supports the commonwealth’s contention in the premises. While the present indictment grew out of the coroner’s inquest, its relation to that proceeding is not such as to bring it within the established rule. The present prosecution was not commenced until after the inquest had ended, and is a totally distinct proceeding. Had it been commenced by the commitment of the defendant by the coroner, on a verdict charging her with having caused the death under investigation, a different question would be presented.

It is the duty of a coroner to hold an inquest super visum corporis when there is reasonable ground to believe that death was caused by unlawful violence or other undue means. Should the evidence before him fail to show such cause of death, his jurisdiction in the premises is not thereby ousted, yet, upon a charge of perjury on the part of a witness, the materiality of the testimony which is the subject of the charge remains to he considered. To sustain the charge of perjury, the testimony must be not only false, but material to the issue. Among the cases illustrating this point are Crookshank v. Gray, 20 Johns. 344; Ross v. Rouse, 1 Wend. 475; Power v. Price, 12 Wend. 500; Power v. Price, 16 Wend. 450; Com. v. Pollard, 53 Mass. 225; Com. v. Grant, 116 Mass. 17. On a coroner’s inquest, the issue is whether the death was caused by unlawful means. Evidence, either direct or circumstantial, tending to show that it was thus caused, is material, and so, also, is evidence in contradiction of this. But when it is shown that death was not due to such means, evidence relating to some act which in no way contributed to it is not material to the inquiry, and testimony on such a point lacks the materiality which is an essential ingredient of perjury. The case in hand presents a striking illustration. ' The inquest was held upon suspicion that death was the consequence of a miscarriage, unlawfully produced. The only operation shown to have been performed on the deceased was a not uncommon one for the replacement of a displaced uterus, and the evidence shows no relation between this and the death of the patient four months later. The testimony on this point was wholly immaterial, since it failed to support or contradict the view that death resulted from a criminal operation. If, indeed, the testimony of the accused had been the only evidence on which this conclusion rested, the question of its mate, riality would present a different aspect. But it was fully sus-, tained by the medical testimony produced by the commonwealth, and on the trial it was expressly admitted by the commonwealth “ that the operation was not a criminal operation, and a perfectly proper one.” By this admission, and the evidence on which it was based, the question of death from unlawful meanso was eliminated from the case. Testimony in denial of an operation admittedly proper, and without bearing on' the cause of death, was wholly immaterial to the purpose of the inquest,— as much so as if it had related to the reduction of a dislocation, or the paring' of the finger nails. The matter in issue before. the coroner was apparently obscured by. the form of the question put to the witness. This related to “an operation,” a term of indefinite scope, ranging, technically, from the extraction of a splinter with an instrument of any kind to an amputation, or the removal of a malignant growth, or of a fetus. It "does not appear how the defendant understood the word, or how the coroner intended it to be understood. If she understood it as meaning a miscarriage, her denial that there was an operation was corroborated by the medical testimony on the part of the commonwealth showing that there was no miscarriage. If she understood it otherwise, her testimony respecting it was immaterial, since there was no evidence that death was due to any operation.

In this view of the controlling features of thé case, the defendant’s ■ testimony in denial of declarations alleged to have been made by her is immaterial. Further than this, the evidence in contradiction lacks the weight and certainty requisite, to convict, even in the absence of the direct evidence in disproof of death by unlawful means.

There are some unusual features connected with the two prosecutions of the defendant in this case, which we may properly notice. Though not formally accused before the coroner, her examination was obviously conducted on the theory that she was guilty of having taken part in a criminal operation, and aimed at obtaining admissions criminating herself. If such a course is to be permitted, it should certainly be with the caution that the witness is not legally required to make such admissions. The only caution that appears to have been given the witness was a notice, by the district attorney, that “ if she didn’t tell the truth there was ten years waiting for her.” The prosecution of the defendant, on both charges, appears marked by peculiar rancor. Though, on the trial for perjury, the commonwealth admitted that the operation in the case was not criminal, but perfectly proper, in the subsequent trial for abortion, on substantially the same evidencé, it pressed for the conviction of the defendant for aiding in this operation, as a criminal abortion. And while the defendant has been convicted of both the offenses charged, the professional operators in the affair — the principal culprits if, as the commonwealth insisted, an abortion had been committed, — have been allowed to escape prosecution.

Judgment reversed and defendant discharged from her recognizance.


author: Per Curiam,

text:
    Commonwealth, Appellant, v. Lewis
    (No. 1).

      Criminal Taw-Sentence — County jail — Penitentiary—Obtaining property by false pretense.

    Upon a conviction for obtaining property by false pretense the statutory punishment is simple imprisonment, and therefore the legal place of confinement is the county jail.
    In such a case if the court of quarter sessions sentences the prisoner to confinement in the penitentiary, the judgment will be reversed on the appeal of the commonwealth and the record remitted with direction “to proceed to sentence defendant anew in due order and according to law.”

      Argued Oct. 8, 1905.
    Appeal, No. 136, Oct. T., 1905, by plaintiff, from judgment of Q. S. Phila. Co., Sept. T., 1904, No. 468, on verdict of guilty in case of Commonwealth v. G. Lambert Lewis.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Indictment for obtaining goods by false pretense. Before McMichael, J.
    At a trial the defendant pleaded guilty and the court sentenced him to the penitentiary for eight years on the three indictments against him.

      Error assigned was the sentence of the court.

      Joseph H. Taulane, assistant ■ district attorney, with John O. Bell, district attorney.
    No appearance nor paper-book for appellee.
    October 23, 1905 :
   Per Curiam,

Upon a conviction for obtaining property by false pretense the statutory punishment is simple imprisonment, and therefore the legal place of confinement is the county jail: Com. v. Fetterman, 26 Pa. Superior Ct. 569. It follows that the sentence of the defendant to the penitentiary must be set aside; and under the circumstances we deem it proper to remit the record for sentence in conformity with the statute. It is to be presumed that in re-sentencing the defendant, the court will give due consideration to the punishment already suffered by him.

The sentence of the court of quarter sessions in this case is reversed and set aside, and the record is remitted to the said court with direction to proceed to sentence defendant anew in due order and according to law.


text:
    Commonwealth, Appellant, v. Lewis
    (No. 2).
    Argued Oct. 3, 1905.
    Appeal, No. 137, Oct. T., 1905, by plaintiff, from judgment of Q. S. Phila. Co., Sept. T., 1904, No. 469, on verdict of guilty in case of Commonwealth v. G. Lambert Lewis.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    October 23, 1905 :
   Per Curiam,

The sentence of the court of quarter sessions in this case is reversed and set aside, and the record is remitted to the. said court with direction to proceed to sentence defendant anew in due order and according to law.


text:
    Commonwealth, Appellant, v. Lewis
    (No. 3),
    Argued Oct. 3,1905.
    Appeal, No. 138, Oct. T., 1905, by plaintiff, from judgment of Q. S. Phila. Co., Sept. T., 1904, No. 470, on verdict of guilty in case of Commonwealth v. G. Lambert Lewis.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    October 23,1905 :
   Per Curiam,

The sentence of the court of quarter sessions in this .case is reversed and set aside, and the record is remitted to the said court with direction to proceed to sentence defendant anew in due order and according-to law.