author: Porter, J.,

text:
    Commonwealth v. Mathues, Appellant.
    Argued March 11, 1909.
    Appeal, No. 14, March T., 1909, by defendant, from judgment of Q. S. Dauphin Co., Sept. T., 1907, No. 239, on verdict of guilty in case of Commonwealth v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Lyman D. Gilbert, C. H. Bergner and William I. Schaffer, for appellant.

      James Scarlet, J. E. B. Cunningham, assistant deputy attorney general, and M. Hampton Todd, attorney general, with them John Fox Weiss, district attorney, and John E. Fox, for appellee.
    July 14, 1909:
   Opinion by

Porter, J.,

This appellant was jointly indicted with John H. Sanderson, William P. Snyder, Joseph M. Huston and James M. Shumaker. He was tried jointly with Sanderson, Snyder and Shumaker, upon the charge of conspiracy to defraud the commonwealth of Pennsylvania, which trial resulted in a verdict of guilty as to all the defendants tried, and judgment was entered upon that verdict. We have-in this case the appeal of the defendant William L. Mathues.

The assignments of error in this appeal raise the same, and only the same, questions which have been considered in the opinions this day filed in the appeals of John H. Sanderson and William P. Snyder from the same conviction. We have carefully considered the specifications of error and the arguments of the able counsel for this appellant which have been submitted in support of those specifications, with a view to determining whether there was anything in this record to distinguish this case from the other appeals mentioned. We are convinced that all the questions arising upon this record have been considered at length in the opinions filed in the appeals of John H. Sanderson and William P. Snyder, and an extended opinion in this case would simply be a reiteration of what we have already said upon the same questions. The specifications of error are all dismissed, for the reasons stated in disposing of the appeals of Sanderson and Snyder.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. Shumaker, Appellant.
    Argued March 11, 1909.
    Appeal, No. 15, March T., 1909, by defendant, from judgment of Q. S. Dauphin Co., Sept. T., 1907, No. 239, on verdict of guilty in case of Commonwealth v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      C. H. Bergner and Percy Allen Rose, for appellant.

      James Scarlet, J. E. B. Cunningham, assistant deputy attorney general, and M. Hampton Todd, attorney general, with them John Fox Weiss, district attorney, and John E. Fox, for appellee.
    July 14, 1909:
   Opinion by

Porter, J.,

This appellant was jointly indicted with John H. Sanderson, William P. Snyder, Joseph M. Huston and William L. Mathues. He was tried jointly with Sanderson, Snyder and Mathues, upon the charge of conspiracy to defraud the commonwealth of Pennsylvania, which trial resulted in a verdict of guilty as to all the defendants tried, and judgment was entered upon that verdict. We have in this case the appeal of the defendant James M. Shumaker.

The assignments of error in this appeal raise the same, and only the same, questions which have been considered in the opinions this day filed in the appeals of John H. Sanderson and William P. Snyder from the same conviction. We have carefully considered the specifications of error and the arguments of the able counsel for this appellant which have been submitted in support of those specifications, with a view to determining whether there was anything in this record to distinguish this case from the other appeals mentioned. We are convinced that all the questions arising upon this record have been considered at length in the opinions filed in the appeals of John H. Sanderson and William P. Snyder, and an extended opinion in this case would simply be a reiteration of what we have already said upon the same question. The specifications of error are all dismissed, for the reasons stated in disposing of the appeals of Sanderson and Snyder.

The judgment is affirmed, and it is ordered that the appellant, James M. Shumaker, appear in the court below at such time as he may be there called and that he be by that court committed to serve that part of the sentence which had not been performed at the time this appeal was made a supersedeas.


author: Henderson, J.,

text:
    Lamberton’s Estate.

      Wills — Conversion—Power of sale — Blending real and personal property.

    1. The presumption of law is against the fiction of conversion but this presumption is repelled (a) where there is a positive direction to sell, or (b) where a sale is necessary to carry out the provisions of the will, or (c) where the testator has so blended his real and personal property as to unmistakably show an intention to raise a fund out of both real and personal estate which he bequeaths as money. In the first case conversion results from the direct command of the testator. In the other two cases it is implied from the intention of the testator.
    2. Where a testator authorizes and empowers his executors to sell and execute deeds for real estate and to sell personal property, and directs the proceeds of his real and personal property to be reinvested, and that the residue of the estate shall be distributed, one-half to a nephew, and the other half to a charitable trust, the testator will be deemed to have converted into personalty a city lot of which he died seized. '

      Taxation — Collateral inheritance tax — Nonresident—Conversion—Real estate.

    3. Where the will of a nonresident converts real estate situated in Pennsylvania, into personal property, such real estate is not subject to a Pennsylvania collateral tax.
    Argued May 10, 1909.
    Appeal, No. 14, March T., 1909, by Benjamin P. Lamberton et al., trustees, from decree of O. C. Luzerne Co., No. 239 of 1907, dismissing appeal from collateral inheritance tax appraisement in Estate of Charles L. Lamberton, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Appeal from collateral inheritance tax appraisement.
    From the record it appeared that Charles L. Lamberton, the testator, died in November 26, 1906, domiciled in New York City, and owning a lot and building thereon erected in the city of Wilkes-Barre, Pennsylvania. This lot was sold by his executors for $11,000. On this sum a collateral inheritance tax of five per cent was levied. The executors appealed from the appraisement, and claimed that the lot under the terms of the will had been converted into personal property, and was therefore not taxable in this state.
    The court in an opinion by Freas, P. J., dismissed the appeal.
    The material portions of the testator’s will are quoted in the opinion of the Superior Court.
    Error assigned was decree dismissing the appeal.

      E. W. Smith, of Reed, Smith, Shaw & Beal, with him John S. Harding, for appellants.
    The testator, Charles L. Lamberton, was a resident of New York and died there, leaving real estate in Pennsylvania. He died without direct heirs and this real estate would be subject to a collateral inheritance tax if the will did not work a conversion. It is clear that if there was a conversion of this real estate it would, by fiction of law, become personal property and mobilia sequuntur personam it would be assumed to be in New York and not subject to the collateral inheritance tax in Pennsylvania: Miller v. Com., 111 Pa. 321; Coleman’s Est., 159 Pa. 231; Vanuxen’s Est., 212 Pa. 315; Schoenberger’s Est., 221 Pa. 112.
    The will worked a conversion: Hunt & Lehman’s App., 105 Pa. 128; Keim’s Est., 201 Pa. 609; Rauch’s Est., 21 Pa. Superior Ct. 60; Yerkes v. Yerkes, 200 Pa. 419; Roland v. Miller, 100 Pa. 47; Jones v. Caldwell, 97 Pa. 45; Vanuxem’s Est., 212 Pa. 315; Dean v. Winton, 150 Pa. 227; Wood’s Est., 15 Pa. Dist. Rep. 55; Perot’s App., 102 Pa. 235; Fahnestock v. Fahnestock, 152 Pa. 56; Marshall’s Est., 147 Pa. 77.

      John J. O’Donnell, for the commonwealth.
    The presumption of the law is against conversion: Yerkes v. Yerkes, 200 Pa. 419; Page’s Est., 75 Pa. 87; Drayton’s App., 61 Pa. 172.
    The status of the property at the instant of death must govern the question of tax, both as to liability and amount: Drayton’s App., 61 Pa. 172; Mellon’s App., 114 Pa. 564; Williamson’s Est., 153 Pa. 508; Handley’s Est., 181 Pa. 339.
    July 14, 1909:
   Opinion by

Henderson, J.,

The question on which the decision in this case depends is whether there was a conversion of the testator’s real estate in Pennsylvania under the terms of his will. If a conversion took place the property is to be considered personal and would be assumed to be in the place of the decedent’s domicile: Vanuxem’s Est., 212 Pa. 315; Schoenberger’s Est., 221 Pa. 112. The presumption of law is against the fiction of conversion, but this presumption is repelled (a) where there is a positive direction to sell, or (b) where a sale is necessary to carry out the provisions of the will, or (c) where the testator has so blended his-real and personal property as to unmistakably show an intention to raise a fund out of both real and personal estate which he bequeaths as money. In the first case conversion results from the direct command of the testator. In the other two cases it is implied from the intention of the testator: Hunt & Lehman’s App., 105 Pa. 128; Rauch’s Est., 21 Pa. Superior Ct. 60. Among the provisions of the will in question are the following: “Item. I authorize and empower my executors and trustees hereinafter named, to lease, sell and dispose of any real estate owned or possessed by me at the time of my decease, and to make, execute and deliver, good and sufficient deeds of conveyance for the same. And also to make, execute and deliver like deeds for any real estate, that may have been contracted to be sold, and conveyed prior to that time by me. And also to sell and dispose of and convert any personal property belonging to me. And I further direct that the proceeds of such real estate, and personal property thus sold, conveyed and converted shall, without unnecessary delay be reinvested safely and securely and the same thereafter shall be held, subject to the terms and conditions of this will.” There is also a provision that the residue of the estate “shall be divided into two equal parts or portions” one of which is given to a nephew of the testator and the other half to the borough of Carlisle in trust for the uses and purposes specified in the will. The testator then directs that the custody, control, “investment and disbursement of said moneys so given” shall be vested in three trustees who shall consult, etc., “in the investment, management and disbursement of the said fund.” In another item the bequest is designated as the “ Charles Lamberton Educational Fund” and in the same item the trustees are directed to “invest the moneys arising from the said moiety of my estate” and makes provision for adding the “annual interest or income thereon to the principal sum” for a fixed period. The real estate involved is a lot in the city of Wilkes-Barre, twenty feet in front with a depth of fifty-eight feet eight inches, with the building thereon. It is not reasonable to suppose that the testator intended property of this kind to be divided into two portions or that one-half of it was to be held by the trustees of the Carlisle fund as land. The provision for the division of the residue of the estate into two equal portions read in connection with the description of the estate which was to go into the hands of the trustees and the directions for the administration of that estate indicate a purpose on the part of the testator that all his estate be converted into money. After granting the authority to the executors to sell the real arid personal estate he directs that the “proceeds of such real estate thus sold, conveyed and converted” shall be reinvested. Language could hardly show more clearly the purpose of the testator to produce a fund, and where such an intention appears if it also is evident that effect cannot be given to material provisions of a will without the exercise of the power of sale the conclusion necessarily follows that a conversion is effected by the will: Fahnestock v. Fahnestock, 152 Pa. 56; Rauch’s Est., 21 Pa. Superior Ct. 60; Keim’s Est., 201 Pa. 609. An equal division of the estate could not be accomplished without a sale of the land except by agreement between the legatees, which agreement.could have no bearing on the interpretation of the will.

There is also the consideration that real and personal estate-are blended by the will, and while this is not important in itself, yet when taken in connection with the clearly expressed intention to create a fund in that way,' there is a warrant for holding that a conversion was intended: Hunt’s App., 105 Pa. 128; Marshall’s Est., 147 Pa. 77. Taking the whole plan of the testator into consideration as expressed in the will we conclude that an implied conversion arises from the necessity of the case and from the blending of real and personal property to produce a fund to be bequeathed.

It follows that the decree of the orphans’ court is reversed.


text:
    Muntz v. Whitcomb, Appellant.

      Deed — Conveyance—Testamentary paper — Life estate — Remainder.
    1. A paper which is in form a deed of conveyance, and by which title to real estate passes to the grantee subject to the life estate of the grantors excepted from the conveyance, is not testamentary in character, but is in both form and substance a deed of conveyance.
    2. Such a paper after reserving a life estate for the grantors continued as follows: “It is understood by the parties hereto in the conveyance of the above property, that the said grantee is to have the use of the same and control of the same for his own benefit after the death of the grantors, he, the said grantee, after the death of the first parties hereto to occupy and use the same in trust for his heirs, after his death to go to them and be for their use and benefit, the ones it is understood and intended who are to get or inherit said property after the death of the said grantee, are to be his natural heirs, the to him nearest of kin or relation by blood, the same being then determined according to the laws then in force in Pennsylvania.” Held, that the grant was of a life estate to the grantee with remainder in fee to his heirs at law, as the result of which the estates united in the grantee in fee simple.

      Evidence — Fraud and misrepresentation — Offei'—Facts.
    3. A general offer to prove misrepresentation and fraud will not be entertained against objection. It is the duty of the counsel in making the offer to specify the facts proposed to be established.
    4. A mere offer to show that at the time or prior to the execution of a deed the grantee promised to pay a debt owing by the grantor, does not support an allegation of fraud.

      Deed — Recital—W arranty — Estoppel.

      5. Where a deed recites a conveyance to the grantor and the recording thereof, the grantor is estopped from asserting that the deed to himself was never delivered. Such a recital also contradicts a covenant of warranty in his deed.
    Argued April 13,1909.
    Appeal, No. 3, April T., 1909, by defendant, from judgment of C. P. Warren Co., Dec. T., 1906, No. 52, on verdict for plaintiff in case of Anthony Muntz v. Clarence W. Whitcomb.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Ejectment for thirty-eight acres of land in Corydon township. Before Lindsey, P. J.
    At the trial it appeared that the defendant, Clarence W. Whitcomb, on June 16,1902, executed and delivered a deed for the land in question, to the plaintiff, Anthony Muntz. Whit-comb had an interest in the land under a deed dated January 21, 1889, from Charles Whitcomb and wife, his parents, to himself. Defendant’s mother survived her husband and died on November 23, 1906.
    Mr. Ball: Counsel for plaintiff offers in evidence the deed, together with the record thereof, from Charles Whitcomb and Laura J. Whitcomb, to Clarence W. Whitcomb, bearing date January 21, 1889, acknowledged January 21, 1889, consideration recited $1,500. Recorded November 29, 1892.
    Mr. Arird: What is the purpose?
    Mr. Ball: Offered for the purpose of showing title in the plaintiff and that the deed is from the common source of title.
    Objected to for the purpose stated and objected to as incompetent and irrelevant, and objected to as showing title in the plaintiff. [1]
    Mr. Ball: Counsel for plaintiff also offers in evidence a deed, and the record thereof, from Clarence W. Whitcomb to Anthony Muntz, bearing date June 16,1902, acknowledged the same day, consideration recited $1,500, recorded the same day, in deed book 89, p. 795.
    Mr. Arird: We ask the purpose.
    Mr. Ball: Offered as an instrument in the line of title, for the purpose of showing title in the plaintiff.
    Objected to as incompetent and irrelevant.
    The Court: Objection overruled for the present and exception sealed for defendant. [2]
    Mr. Arird: We offer to show by this witness and others, the declarations and acts of the grantee at the time of the execution of the deed and before the execution of the deed from Clarence W. Whitcomb to Anthony Muntz, tending to show misrepresentations and fraud by the grantee in procuring the execution of the deed. To be followed with proof that prior to the execution of the deed that Anthony Muntz stated to the defendant that he would pay not only the consideration mentioned in the deed, but he would pay the excess value mentioned in the deed of about $1,200. Further, that he would pay a judgment entered in the court of common pleas of Warren county, No. 211, December Term, 1900, wherein Anthony Muntz was plaintiff, and Clarence W. Whitcomb was defendant, for the sum of $116.48, and that he would pay other indebtedness of Clarence W. Whitcomb, and that since the execution and delivery of the deed he has neglected and refused to pay these and that Clarence Whitcomb, the witness and defendant, would not have executed the deed if it had not been for the acts and declarations made by Anthony Muntz to the defendant. This for the purpose of showing fraud on the part of the grantee.
    And further to be followed by evidence showing thp value of the property transferred was largely in excess of the value mentioned in the deed.
    Objected to for the reason that the offer does not show anything that constitutes fraud and as incompetent and irrelevant.
    The Court: Objection sustained and exception sealed for defendant. [3]
    Mr. Arird: We propose to show the instrument in writing, offered by the plaintiff, was not delivered to Clarence W. Whit-comb, but was found after the death of Charles Whitcomb, his father. This for the purpose of showing that the title was not in the defendant but simply the right of possession as trustee in trust for others.
    Objected to as incompetent, the offer not showing that Anthony Muntz, the grantor in the deed, knew or was informed at the time of his purchase of the alleged nondelivery of the deed from Charles Whitcomb and Laura J. Whitcomb to Clarence W. Whitcomb, and for the reason that the defendant is estopped from such showing by the recital in the deed, and generally as incompetent and irrelevant.
    The Court: Objection sustained and exception sealed for defendant.
    Mr. Arird: I will make the same proposition with the addition that Anthony Muntz, the plaintiff, knew that the deed was not delivered at the time of Charles Whitcomb's death. For the purpose of showing that this defendant simply had a right of possession as trustee in trust for others. [4]

      Plaintiff presented these points:
    1. The rule in Shelley’s case applies to the deed from Charles Whitcomb and Laura J. Whitcomb to Clarence W. Whitcomb, and said Clarence W. Whitcomb took a title under said deed in fee simple to the lands described therein, subject to the life estates of the grantors, said Charles Whitcomb and Laura J. Whitcomb, reserved to them in said deed. Ansiver: This point is affirmed. [5]
    2. Under all the evidence in the case the verdict of the jury must be for the plaintiff for the land described in the writ. Answer: This point is affirmed. We therefore instruct you, gentlemen, that under the facts and the law in the case your verdict should be rendered for the plaintiff. There is no question of fact for you to pass upon and you therefore can render your verdict in your seats, and the prothonotary will take your verdict for the plaintiff. [6]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5, 6) above instructions.

      D. U. Arird, for appellant.
    The paper was testamentary in character: Wood v. Schoen, 216 Pa. 425; Diehl’s Est., 11 Pa. Superior Ct. 293; Coulter v. Shelmadine, 204 Pa. 120; Kisecker’s Est., 190 Pa. 476.

      D. I. Ball, for appellee.
    In the case now before the court, the estate granted by the deed vested immediately in Clarence W. Whitcomb. The right to the use and possession of the premises was reserved to the grantors until the- termination of the life estate at their death: Anspach v. Lightner, 31 Pa. Superior Ct. 218; Book v. Book, 104 Pa. 240; Cable v. Cable, 146 Pa. 451; Knowlson v. Fleming, 165 Pa. 10; Eckman v. Eckman, 68 Pa. 460.
    July 14, 1909:
   Opinion by

Henderson, J.,

A large part of the argument on behalf of the appellant is in support of the proposition that the instrument offered in evidence by the plaintiff from Charles Whitcomb and Laura J. Whitcomb, his wife, to the defendant dated January 21,1889, is not a deed for the conveyance of land, but a will, and that not having been proved as a will it did not transfer the title to the land therein described from the said Charles Whitcomb and wife to the defendant. This position is said to be supported by the line of cases holding that whatever the form of the instrument may be if it vest no present interest but only directs what is to be done after the death of the maker it is testamentary. There are numerous precedents which hold that, even where the instrument is in form a deed, if the manifest purpose is that it shall not take effect until after the death of the person making it, it shall operate as a will and not as a conveyance. Turner v. Scott, 51 Pa. 126, is a case of this class, as is also Harrison’s Estate, 196 Pa. 576, to which the counsel for the appellant refers. It will be observed, however, on examination of the first of these cases that although the instrument was in form a deed of conveyance it contained an express proviso that the conveyance was in no way to take effect until after the death of the grantor and the estate was distinctly limited to take effect after his decease. Because of this provision it was decided that the instrument expressed a disposition of the property to take effect after the death of the maker and not before. No vested interest passed to the grantee in the lifetime of the grantor. The instrument was testamentary, therefore. In Harrison’s estate the testator had made a will and later made further directions in regard to her estate on a separate piece of paper which the court held to be a codicil to her will. It was not the case of a paper in the form of a deed. It did not purport to vest a present interest in the persons named therein, and under all the facts disclosed by the testimony was clearly intended to be a part of the decedent’s will. But the paper which we have under consideration has none of the features of a testamentary document. It is in form and substance a deed of conveyance by which the title passed to the grantee subject to the life estate of the grantors excepted from the conveyance. The right of possession retained by the grantors was not inconsistent with the grant of the remainder to the appellant. The interest of the latter passed to him as a vested estate. The instrument contains all the essentials of a deed, and we do not find any provision therein showing an intent on the part of the makers that it should not take effect until after their death. That clause of it in which there was an apparent attempt to give a life estate to the defendant and after his death an estate in fee to his heirs “the same being then determined according to the laws then in force in Pennsylvania” has not the effect attributed to it by the learned counsel for the appellant. In a somewhat involved form of expression that is a direction that the descent go according to the laws in force at the death of Clarence Whitcomb. At the most this would only amount to a restriction of the right of alienation and does not change the character of the instrument or give it a testamentary effect. It is alleged, however, that if the instrument be a conveyance it is to the defendant in trust and that he had no estate in the land which could be affected by his deed to the plaintiff. After the reservation of the life estate to the grantors the deed contains the following: “ It is understood by the parties hereto in the conveyance of the above property, that the said Clarence W. Whitcomb is to have the use of the same and control of the same for his own benefit after the death of the said Charles and Laura Whitcomb, he the said Clarence W. Whitcomb after the death of the first parties hereto to occupy and use the same in trust for his heirs, after his death to go to them and be for their use and benefit, the ones it is understood and intended who are to get or inherit said property after the death of said Clarence W. Whitcomb are to be his natural lawful heirs, the to him nearest of kin or relation by blood, the same being then determined according to the laws then in force in Pennsylvania.” These words indicate an intention to give a life estate to the grantee in trust for his heirs; then follows a declaration of the understanding of the parties as to who are to be the grantee’s heirs. The word “heirs” is here used in its legal sense as is shown by the direction that they are to be ascertained according to the laws in force in Pennsylvania at the time of the death of Clarence W. Whitcomb. The persons intended, are those upon whom the law casts.the estate on the death of the ancestor. The grant, therefore, is of a life estate to Clarence W. Whitcomb with remainder in fee to his heirs at law, as a result of which the estates united in Clarence W. Whitcomb. The case closely resembles that of Kepple’s Appeal, 53 Pa. 211.

The offer to show misrepresentation and fraud by the grantee in procuring the execution of the deed as set forth in the third assignment of error was not sufficiently specific to justify the court in hearing the evidence. It proposed to show “the declarations and acts of the grantee at the time of the execution of the deed and before the execution of the deed from Clarence W. Whitcomb to Anthony Muntz, tending to show misrepresentations and fraud by the grantee in procuring the execution of the deed.” The court was not able from this proposal to determine whether the evidence was relevant or not. There was no statement of facts to be established nor anything to indicate that the witness could testify to a matter material to the inquiry. An offer of evidence should disclose all the facts which are necessary to show that it is admissible; otherwise, the time of the court might be wasted in an examination which would come to nothing or perhaps divert the attention of the jury from the point in issue: Sweetzer v. Atterbury, 100 Pa. 18; Hill v. Truby, 117 Pa. 320. A general offer to prove misrepresentation and fraud will not be entertained against objection. It is the duty of the counsel in making the offer to specify the facts proposed to be established. This practice was adopted in each of the cases cited by the appellant: Chew v. Gillespie, 56 Pa. 308; Horn v. Brooks, 61 Pa. 407. That portion of the offer which proposed to prove that prior to the execution of the deed the plaintiff promised to pay certain indebtedness of the defendant and also the amount of the consideration named in the deed in excess of $1,200 does not support the allegation of fraud. If the promise was made at the time of the execution of the deed it would amount to an agreement for the payment of purchase money. If it was made before the contract for the purchase of land was entered into it would have no binding effect. If the fact were as stated in the offer it would not tend to establish fraud. The remainder of the offer does not propose anything which if proved would avail the defendant in an action of ejectment.

The appellant is not in a situation to aver that the deed from Charles Whitcomb and Laura J. Whitcomb, to himself, was not delivered. In his conveyance to the defendant he recites that the land conveyed is “the same premises that were conveyed unto the grantor in this conveyance by Charles Whitcomb and Laura J. Whitcomb, his wife, the father and mother of this grantor by deed dated Jan. 21, 1889, and recorded in the recorder's office in Warren County, Pennsylvania, in Deed Book 71, page 773.” This amounts to a proposal to prove that the defendant had no title to the land he conveyed and also contradicts the covenant of warranty in his deed. This he is estopped from doing. An estoppel may arise by implication from a grant that the party has an estate in the land and he will not be heard to deny it. A recital of one deed in another binds the parties: Carver v. Jackson, 29 U. S. 1. The defendant in his deed to the plaintiff recited the conveyance of Charles Whitcomb and his wife and that it was recorded in the recorder's office. This is conclusive against him on that.point. The warranty of title also works an estoppel: Dart v. Dart, 7 Conn. 250; 1 Greenleaf's Evidence, sec. 23; Pelletreau v. Jackson, 11 Wend. 110.

The other assignments of error do not require special consideration. The action of the court was in accord with our view of the case.

The judgment is accordingly affirmed.


text:
    McSorley v. Coyle, Appellant.

      Interpleader — Petitioner for issue — IndeperuLent liability.

    1. The petitioner for an interpleader and an issue thereon must be free from any independent liability to either of the parties claiming the fund. If he has expressly acknowledged the title and right of one of them and agreed to hold the property for him, he is not an indifferent stakeholder.
    2. In an action upon a written contract it appeared that the plaintiff was the vendee of certain real estate, and that the defendants were the agents of the vendors for the management of real estate. On the real estate sold there was a municipal lien which could not be satisfied. The plaintiff, the vendors and the defendants entered into the contract in suit by which the vendors bound themselves to pay the lien in question when it became possible to pay it. It was also agreed that the defendants should hold funds of the vendors to satisfy the lien, and that when it became payable the defendants were forthwith to apply so much of the funds of the vendors in their hands as might be necessary to fully pay and satisfy the lien. The agreement was under seal. After the lien became due and payable the vendors notified the defendants that they had a counterclaim against the plaintiff growing out of a transaction in regard to another piece of real estate. The defendants applied for an interpleader which was refused, filed a demurrer which was overruled, and a judgment was entered against them for want of a sufficient affidavit of defense. Held, (1) that the application for the interpleader was properly refused, as there was a direct obligation by the defendants to pay the plaintiff if the lien was not satisfied; (2) that there was sufficient consideration to support the agreement as the plaintiff took the title relying upon the promise of the defendants to satisfy the lien; (3) that the set up of the counterclaim of the vendors in the affidavit of defense was insufficient to prevent judgment against the defendants.
    Argued April 28, 1909.
    Appeal, No. 171, April T., 1909, by defendants, from various orders of C. P. No. 4, Allegheny Co., Third Term, 1908, No. 255, in favor of the plaintiff in suit of John McSorley v. William L. Coyle et al., doing business as Coyle Brothers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for interpleader.
    Demurrer to statement of claim.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

      Errors assigned were (1) refusal of interpleader; (2) overruling demurrer to statement; (3) making absolute rule for judgment for want of a sufficient affidavit of defense.

      E. J. Kent, for appellant.
    Where the suggestion for inter-pleader filed, shows that the funds sued for in the hands of the defendants is claimed by third persons and defendants disclaim all interest in the subject-matter of the. action and offer to pay the money into court or dispose of the same as the court may order, it is the duty of the court to award an issue of inter-pleader: Vandergrift v. Freeman, 1 W. N. C. 109; Laughlin v. McCormick, 2 W. N. C. 352; Aland v. Dollar Savings Bank, 31 Pitts. L. J. 80; Bechtel v. Sheafer, 117 Pa. 555; DeZouche v. Garrison, 140 Pa. 430.
    It is a general rule that when an agent’s authority is not coupled with a beneficial interest in the subject-matter of the agency, the principal may revoke his agent’s authority at any time: Blackstone v. Buttermore, 53 Pa. 266; Coffin v. Landis, 46 Pa. 426; Hartley & Minor’s App., 53 Pa. 212.
    Appellee does not show or allege any damage. He does not allege that he has paid the liens, or that the city asked him to pay the same, that the city has taken any steps to compel the payment thereof; and appellee is not personally liable or personally obligated therefor: Mayer v. Walter, 64 Pa. 283.

      C. K. Robinson, with him J. F. McNaul, for appellee.
    Defendants have assumed a personal liability to plaintiff, which is fatal to interpleader: Bridesburg Mfg. Co.’s App., 106 Pa. 275; Bechtel v. Sheafer, 117 Pa. 555; DeZouche v. Garrison, 140 Pa. 430.
    There are no rival claimants to the same fund; this is fatal to the interpleader: Bridesburg Mfg. Co.’s App., 106 Pa. 275.
    There was adequate consideration for the promise: Flannery v. Dechert, 13 Pa. 505; McNish v. Reynolds, Lamberton & Co., 95 Pa. 483; Smith v. McKenna, 53 Pa. 151.
    The measure of damages is amount of lien: Ardesco Oil Co. v. Oil & Mining Co., 66 Pa. 375.
    Appellants have received funds for an express purpose: Lee v. Gibbons, 14 S. & R. 104; Winton Coal Co. v. Pancoast Coal Co., 170 Pa. 437; Humbird v. Davis, 210 Pa. 311; Whitney v. Haskell, 216 Pa. 622; Kirkpatrick v. McDonald, 11 Pa. 387-392; Stoudt v. Hine, 45 Pa. 30; Hindmarch v. Hoffman, 127 Pa. 284.
    July 14, 1909:
   Opinion by

Henderson, J.,

There were three stages in the development of this case from the judgment in each of which the defendants appealed. The first assignment excepts to the refusal of the court to award an interpleader between the plaintiff and Sarah I. and W. I. Mustin on the petition of the defendants setting forth that they were stakeholders merely and that the fund for which the plaintiff sued was claimed by Sarah I. Mustin and William I. Mustin. The declaration set forth the plaintiff’s cause of action from which it appears that the said Sarah I. Mustin and William I. Mustin, her husband, conveyed to the plaintiff certain real estate in the city of Pittsburg against which at the time of the conveyance a municipal lien existed which the vendors were unable to remove because the assessments had not been made out and had not yet become payable at the office of the city treasurer. In order, therefore, to satisfy the vendee and relieve him from liability on account of the lien an agreement in writing was entered into to which the vendors, the vendee and the defendants in this action were the parties. Coyle Brothers were the agents of the vendors for the collection of rents and they were brought into the contract for that reason. By the terms of this agreement the vendors bound themselves to pay and satisfy the lien existing against the property they were about to convey as soon as the assessment was made up and in a situation permitting its payment to the city treasurer of Pittsburg. The agreement contained the further provision that Coyle Brothers, the agents of the grantor, should hold a sufficient amount of rents which might come into their hands belonging to the vendors to satisfy the said lien, with the further provision that if the vendors should fail to satisfy the lien within fifteen days after the same became payable then Coyle Brothers were forthwith to apply so much of said rents to the payment of the lien as might be necessary to fully satisfy and discharge it. This agreement was under seal. Several objections were made by the plaintiff to the granting of an inter-pleader. Without entering into a discussion of all of them, two were sufficient to support the action of the court. One of these was that the defendants’ liability was a direct engagement to pay the amount of the lien at once on failure of the grantors to do so within the time fixed in the contract. This undertaking of the defendants was assumed because the grantors, their principals, desired to relieve the property of the incumbrance and placed in the hands of the defendants a sufficient sum to discharge the liability.\l The defendants in becoming parties to the contract undertook to perform if their principals failed and it is admitted that a fund was in the defendants’ hands sufficient, to carry out this promise. It is the rule generally speaking relating to interpleaders' that the petitioner for such an issue must be free from any independent liability to either of the parties claiming the fund. If he has expressly acknowledged the title and right of one of them and agreed to hold the property for him he is not an indifferent stakeholder: Bechtel v. Sheafer, 117 Pa. 555; DeZouche v. Garrison, 140 Pa. 430. The petition for the interpleader admits the contract as set forth in the plaintiff’s declaration *dt is not disputed that the plaintiff’s grantors did not pay within the time stipulated in the agreement and the defendants, therefore, became bound to the plaintiff on the terms of that instrument. The title was accepted by the plaintiff presumably on the consideration in part, at least, of the undertaking of the defendants to satisfy the lien, and their obligation so to do was directly to the plaintiff. No change or transfer of the fund in the defendants’ hands had been made nor was there any claim of title acquired after the deposit with the defendants. In this respect the case is different from Bechtel v. Sheafer, 117 Pa. 555. That was the case of a duebill as to which it was alleged that the title had been transferred and there was, therefore, a contest between rival claimants to the obligation. The second objection is that on the defendants’ own statement there is not any other claimant to the fund in their hands. What is set up by them in their petition is that Mr. and Mrs. Mustin have a counterclaim or demand for damages against the plaintiff because of some alleged breach of a parol contract relating to another piece of real estate. There is no allegation that the money in the hands of the defendants is not properly there for the very purpose for which it was given to them. Moreover, the claim set up by Mustin and his wife is for a much larger amount than that for which the plaintiff sues. They are not claiming the identical fund, but are setting up a cross demand which could not be tried in the issue for which the defendants asked. It is not the form of action to determine the rights of parties on any other question than that of the title to the particular fund. The case presented was, therefore, not an appropriate one for an interpleader.

The second and third assignments relate to the subsequent stages of the proceeding and may be considered together. There was a demurrer to the plaintiff’s statement which was overruled and a judgment for want of a sufficient affidavit of defense. It was objected in the demurrer and in the affidavit of defense that the defendants were not liable to the plaintiff because their undertaking was without consideration and that their agreement was not to pay to the plaintiff but to the city treasurer if any obligation was imposed and that the contract with the plaintiff did not impose a contractual obligation on the defendants. The plaintiff’s claim introduced two grounds of liability: first, because of the contract already referred to, and, second, because of the receipt of money by the defendants to be applied in a particular way for the latter’s use. The defendants agreed to accept and actually did receive the money contracted about and promised to pay according to the terms stipulated. This undertaking was an inducement to the plaintiff to accept the title charged with the lien and this was a good consideration between the plaintiff and defendants. The risk to the plaintiff because of the incumbrance was a sufficient consideration: Smith v. McKenna, 53 Pa. 151; Harlan v. Harlan, 20 Pa. 303; McNish v. Reynolds, 95 Pa. 483. If the plaintiff took the title, moved in part as he evidently was by the promise of the defendants to relieve the property if the grantors failed to do so within the time fixed, there was a good consideration.

The defendants’ liability was not one of indemnity merely. The contract did not relate to the title and that the land was or should continue to be free from incumbrances, but was an agreement to discharge the lien at a particular time. If the obligation were one of indemnity no right of action would accrue unless damage was shown to be inflicted, but where the agreement is to do a particular thing a right of action is complete as soon as there is a failure to perform: Oil Co. v. Oil & Mining Co., 66 Pa. 375; Sedgwick on Damages (8th ed.), sec. 974. It is admitted, moreover, that the defendants had in their hands a fund to be applied to the payment of this liability and an action can be sustained against them by the party for whom it was so deposited: Shoemaker v. King, 40 Pa. 104; Stoudt v. Hine, 45 Pa. 30. The affidavit of defense sets up no other reason for refusing to pay the plaintiff's demand than the claim of Mustin and wife that the plaintiff is indebted to them on account of the breach of a contract for the improvement of real estate which they took in exchange for that conveyed to the plaintiff. It is alleged in an answer filed to the rule for an inter-pleader that there was no conveyance of land by the plaintiff to Mr. and Mrs. Mustin, but whatever may be the fact with reference thereto the defendants cannot avail themselves of that controversy in.defense of the plaintiff's action. The demurrer should have been overruled, and judgment was properly entered for the plaintiff on the rule for judgment for want of a sufficient affidavit of defense.

The exceptions are overruled and the judgment affirmed.


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    Pierce, Appellant v. Lehigh Valley Coal Company.

      Mines and mining — Deposit of culm — Pollution of stream — Waters.
    1. The proprietor of a mining operation has no right to discharge culm and other refuse of the mine into a stream or to leave it where it could be carried by ordinary floods onto the land of other persons. If he does so dispose of it he renders himself liable for any damage resulting therefrom to such owner.
    2. In an action to recover such damages where there is evidence that the culm in very large quantities was deposited on plaintiff’s land from the defendant’s mine, the plaintiff’s case is for the jury, although there may be evidence that culm from the mines of other owners was also deposited upon plaintiff’s land. In such a case it is for the jury to determine to what extent the culm deposited by the defendant in the stream, damaged the plaintiff’s land.
    Argued March 2, 1909.
    Appeal, No. 44, March T., 1909, by plaintiff, from judgment of C. P. Luzerne Co., March T., 1904, No. 179, on verdict for defendant in case of Harry W. Pierce v. The Lehigh Valley Coal Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries to land. Before Ferris, J.
    At the trial defendant presented the following póint:
    1. The question whether the culm was deposited in the river by the defendant, and if any, how much of the same was washed by the flood of 1902, upon the plaintiff’s land, is for the determination of the jury, and if the jury believes under all the evidence that the defendant did deposit culm in the river and that the same, or any part thereof was washed by the flood of 1902 on the plaintiff’s land, then the plaintiff is entitled under the evidence to recover whatever it would reasonably cost to remove this culm from the land. Answer: The plaintiff’s point I cannot affirm as it is stated, and therefore it is refused. [1]
    The court charged the jury in part as follows:
    [We therefore instruct you to find a verdict in this case in favor of the plaintiff and against the defendant for nominal damages, not for compensatory damages at all.] [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      William S. McLean, with him John A. Opp, for appellant.
    There was abundant evidence to support the claim set forth in the declaration, and it was the duty of the court to submit these questions of fact to the jury. The facts shown constituted a nuisance: Stokes v. Penna. R. R. Co., 214 Pa. 415; Green v. Sun Co., 32 Pa. Superior Ct. 521; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Clark & Co. v. Railroad Co., 27 Pa. Superior Ct. 251; Trexler v. Balt. & Ohio R. R. Co., 28 Pa. Superior Ct. 198.
    Under all the evidence in the case the jury would have been justified in finding that the entire damage done, was caused by the wanton, willful and reckless conduct of the defendant: Greeney v. Water Co., 29 Pa. Superior Ct. 136.
    The plaintiff is not precluded from recovery against one tort feasor by showing that others have borne a share in it: North Penna. R. R. Co., v. Mahoney, 57 Pa. 187; Rahenkamp v. Traction Co., 14 Pa. Superior Ct. 635; Bricker v. Conemaugh Stone Co., 32 Pa. Superior Ct. 283; Hoffman v. Coal Co., 16 Pa. Superior Ct. 631; Gould v. McKenna, 86 Pa. 297; DeGrazia v. Piccardo, 15 Pa. Superior Ct. 107.

      J. B. Woodward, of Wheaton, Darling & Woodward, with him S. P. Wolverton, for appellee.
    An owner of a mine who deposits culm in a stream or in a place where only an extraordinary flood will carry it down upon his neighbor is not liable: Elder v. Lykens Valley Coal Co., 157 Pa. 490; Sipe v. R. R. Co., 219 Pa. 210; Little Schuylkill Nav., etc., Co. v. Richards, 57 Pa. 142; Seely v. Alden, 61 Pa. 302; Howard v. Traction Co., 195 Pa. 391.
    October 11, 1909:
   Opinion by

Henderson, J.,

It is a well-established rule of law regulating mining operations that the proprietor has no right to discharge culm and other refuse of the mine into a stream or to leave it where it will be carried by ordinary floods onto the land of other persons. If he does so dispose of it he renders himself liable for any damage resulting therefrom to such owner: Lentz v. Carnegie Bros. & Co., 145 Pa. 612; Elder v. Lyken Valley Coal Co., 157 Pa. 490; Hindson v. Markle, 171 Pa. 138. Where the material is unlawfully put into the stream the fact that an extraordinary. flood was a contributing cause in carrying it onto the plaintiff’s land does not relieve the person whose wrongful act placed the injurious material in the channel. A considerable part of the plaintiff’s land was injured by a deposit of culm thereon at the occurrence of a flood in the Susquehanna river in 1902. His allegation is that this resulted from the act of the defendant in discharging culm from the Dorrance and Prospect mines owned by it into the river, whence it was carried by the action of a flood and lodged on his farm.’ The evidence as to the injury to the land is direct and clear, as is that showing the placing of culm in the river at the defendant’s mines. A jury might properly find from this evidence that culm not mixed with sand or gravel had been deposited in large quantities on several acres of the farm; that no such deposit had been made there before and that none similar occurred along the stream in that flood except in a slight degree on the land of an adjoining owner. It was not seriously contended that the plaintiff was not substantially injured. The principal ground of defense was that there were many coal mines and washeries along the Lackawanna river and its tributaries; that they discharged large quantities of culm and refuse along that stream which was washed down; that the Lackawanna river flows into the Susquehanna river, carrying in its water large amounts of culm; that this culm was distributed through the water of the Susquehanna and that the plaintiff’s injury was chargeable in part at least to this cause, and that as the plaintiff had not shown to what extent the refuse of other mines and washeries had contributed to his injury he could not recover against the defendant. The learned trial judge entertaining this view of the case instructed the jury that they could only award nominal damages to the plaintiff. This result could only be reached by giving credit to the testimony of the witnesses for the defendant who testified to a variety of conditions and circumstances tending to show that the waste of other mines was carried onto the plaintiff’s land. A part of this evidence was theoretical and speculative and opened a large field for inference. The value of material parts of the evidence depended on the credit which the jury would attach to the testimony of the witnesses, and as the defendant had taken the burden of showing that it was not alone responsible for the plaintiff’s damage the jurors were the judges of the facts. How much of the refuse of mines along the Lackawanna Valley ten or twenty or thirty miles away from the plaintiff’s farm was carried into the Susquehanna, how widely it was distributed there, what the course of the stream was or the action of cross currents could only be ascertained by the jury from a consideration of all the evidence, and when we regard the plaintiff’s evidence that much of the deposit on his land was pure culm, that the culm bars a mile or two away at the defendant’s mines were removed by the high water and that the ice gorge changed the course of the flow of the stream it becomes apparent that the plaintiff’s case is not simply one of injury from the general flow of the water of the river, but the allegation of the transfer of a large part of a specific body of culm from the defendant’s mines onto his farm. His evidence shows approximately the dimensions of this body of culm and that his damage was received at the time it was carried out by the ice and water. He shows the amount distributed over a part of his farm, and if the jury credited the evidence offered by him the conclusion that a large part at least of this culm came from the bar which the defendant cast into the stream would not be a" guess merely. It would not be an unreasonable consideration that the culm carried by the Lackawanna river into the Susquehanna would be distributed through the water of the latter stream and found deposited over all the low land as the water receded if a large quantity of culm came out of the Lackawanna; whereas the plaintiff’s evidence would lead one to believe that the only culm in any considerable quantity found along the stream in that vicinity was on a few acres of his land and a small part of that of one of his neighbors although the whole valley was overflowed at the time of the flood. The inquiry in its very nature is more ■ or less indefinite, but it is proper to take into consideration the distance of other mines or washeries from the property injured, the extent to which the refuse from them was carried into the Susquehanna, the extent to which the action of the water in the Lackawanna and the Susquehanna would mingle the culm with sand or other material carried down by the flood, the proximity of the defendant’s plant, the quantity of deposit cast onto the plaintiff’s land, the quantity carried out from the defendant’s works at the time of the flood and-other attending circumstances. The facts must be ascertained according to the best evidence the nature of the case affords. The difficulty of separating the damage if any done by the defendant from that for which others may be responsible is not to be underestimated, but that is not sufficient in itself to justify the denial of the right of recovery in the case of wrongful injury. This difficulty was recognized in Little Schuylkill Nav., etc., Co. v. Richard, 57 Pa. 142, and Gallagher v. Kemmerer et al., 144 Pa. 509; but was not considered sufficient to bar a recovery. That the defendant is not responsible for the wrongful acts of others cannot be questioned. If the deposit complained of was carried down from other coal operations than those managed by the defendant the latter cannot be charged with the consequence of the fault of others. It was the duty of the plaintiff to introduce evidence to show to what extent the injury complained of was the consequence of the defendant’s action, but it cannot be expected that this can be done with mathematical exactness. Evidence which reasonably tends to support the plaintiff’s allegation is sufficient. A careful consideration of the voluminous evidence offered leads us to the conclusion that the case should have gone to the jury on the question whether and to what extent the culm deposited by the defendant in the river damaged the plaintiff’s land: Hoffman v. Coal Co., 16 Pa. Superior Ct. 631; Little Schuylkill Nav., R. R. & Coal Co. v. French & Funk, 81* Pa. 366; Seely v. Alden, 61 Pa. 302, and Gallagher v. Kemmerer, supra. The appellee relies on Sipe v. Penna. R. R. Co., 219 Pa. 210, as a controlling authority. We do not understand that case, however, to go to the extent contended for. That was an action for damages for negligently depositing stone, earth and other débris in the plaintiff’s dam, thereby reducing its capacity as a reservoir. The opinion of the court indicates that there was evidence that there had been a natural accumulation of sediment in the dam brought down by the flow of water from Laurel Run and accumulated in the course of years from other sources. Under such circumstances it was held that it was incumbent on the plaintiff to furnish evidence from which the jury might conclude with some degree of certainty that the deposit of sediment which filled up the bed of the stream was the result of the action of the defendant, and that to show the fact merely that there was sediment in the river bed after the date when the company built its bridges at points considerably distant from the dam was not sufficient. It was said by the court: “The plaintiff seems to have been allowed to submit to the jury the broad claim that the construction of the piers and abutments of the bridges, situated hundreds of feet above the mill and the breast of the dam, constituted an interference with his water power. This was a mistake. That construction, if properly made, was carried out under the right of eminent domain after due compensation paid, or secured to be paid, for the property taken. It was only the loose material and débris improperly deposited in the river, or negligently allowed to wash down the stream, and which tended to fill up the river bed to the injury of the water power, which gave rise to the right of action in this case.” There was nothing in the case to show how much of the sediment in the dam was there before the bridges were constructed.. The case before us more nearly resembles Elder v. Lykens Valley Coal Co., 157 Pa. 490, and Gallagher v. Kemmerer, 144 Pa. 509. Our conclusion is that the case was for the jury on the question of compensatory damages.

The judgment is, therefore, reversed and a venire facias de novo awarded.


text:
    Commonwealth v. Lenhart, Appellant.

      Criminal law — Conspiracy—Banks and banking — Evidence—Intention of parties.

    1. On the trial of an indictment for conspiracy against the cashier and depositor of a bank to defraud the bank, the good intention of the parties to repay the bank at the time the money was taken, is not a sufficient answer to evidence of the commonwealth tending to show an arrangement between the two defendants to conceal their operations to use large amounts of the money of the bank without compensation and by unlawful methods to prevent the state banking department from acquiring information of the true condition of the bank’s business.
    2. In such a ease where evidence is introduced by the commonwealth to the effect that the cashier issued checks payable to other persons than his co-conspirator, although for the latter’s use, the court may properly say to the jury that if the defendants used the checks in this form for the purpose of preventing other banks from knowing or learning the extent of the accused depositor’s dealings with his own bank, the agreement was unlawful. The mere fact that in indorsing the names of the payees on the checks did not, under the circumstances, constitute forgery, is immaterial.

      Criminal law — Conspiracy—Evidence—Co-conspirator.
    3. While it is proper on the trial of an indictment for conspiracy for the court to charge the jury that they should receive the testimony of a co-conspirator with caution, still there is no rule of law which forbids a conviction on the testimony of an accomplice alone. The appearance of the witness and his manner of testifying may so impress a jury as to satisfy them of the truth of his evidence.

      Criminal law — Charge of court — Assignments of error — Appeals—Bill of particulars.

    4. In reviewing the charge of a trial court a fragment of it is not to be judged without regard to the other parts, and where the charge taken as a whole correctly expresses the law appropriate to the questions involved, the judgment will not be reversed. Even where in a criminal case, the charge indicates a leaning towards the side of the commonwealth, that is not a sufficient ground for reversal where the charge as a whole contains a correct and adequate presentation of the law applicable to the facts which the testimony tended to establish; and even where a strong opinion on the evidence is expressed, it may not be erroneous when considered in connection with the other parts of the charge.
    5. If a trial judge neglects to charge on some subject which counsel deems important, fairness to the judge requires that his attention should be called to it before the jury is sent out in order that the omission may be corrected.
    6. Where a bill of particulars covers a particular transaction in a criminal prosecution but counsel deems it insufficient fully to explain the transaction, it is his duty to ask for a more specific bill of particulars.
    Argued April 21, 1909.
    Appeal, No. 175, April T., 1909, by-defendant, from judgment of Q. S. Washington Co., Feb. T., 1908, No. 18, on verdict of guilty in case of Commonwealth v. William L. Lenhart.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ,
    Affirmed.
    Indictment for conspiracy to defraud a bank. Before Taylor, J.
    At the trial it appeared that the defendants were O. F. Piper, cashier of the People's Bank of California, Pa., and W. L. Len-hart, one of the depositors of the bank.
    The facts are stated in the opinion of the Superior Court.
    The commonwealth made the following offer:

      Commonwealth offers to have exhibits “A-l” and “B-l” now shown witness identified by him, and have him explain where they were found, to whose order they are made payable and how indorsed and the amounts that they represent; to be followed by evidence that the person whose name is indorsed thereon received no money thereupon, that the money was paid to W. L. Lenhart, and that they do not appear on the books of the bank. This for the purpose of showing a corrupt understanding existing between W. L. Lenhart and O. F. Piper by reason of which his transactions with the bank were not to appear upon the books of the bank; for the further purpose of showing that in his transactions with the bank he used the name of M. L. Burd and the other persons in order that the magnitude of his transactions with the bank might not be known to the board of directors.
    The evidence is objected to, first, for the reason that there is no proof nor offer to prove that O. F. Piper did not receive the full amount of the face value of these checks at the time the checks were issued, and no proof or offer to prove that they were issued at the request of the defendant, W. L. Lenhart; and third, there is no proof nor offer to prove that the People’s Bank of California was defrauded out of a single penny on account of either of these checks; and generally as irrelevant and incompetent.
    The Court: Objection overruled, offer admitted and bill sealed for defendant. [19] Answer: “A-l,” cashier’s check dated May 31, 1907, $2,000. “B-l,” cashier’s check dated May 22, 1907, $2,000.

      “ Q. Mr. McClain, do you have the total or aggregate amount of the cashier’s checks made payable to M. L. Burd included in the exhibits you have read which did not appear upon the books of the bank? A. There are seventy-six cashier’s checks issued, but some of them arc payable to others beside M. L. Burd; I don’t have the total separated.”
    The commonwealth offers to prove by the witness on the stand that by a falsification of the books of the bank $1,345 was taken from the account of the East Pike Run school district, and of this amount a cashier’s check for $800 was given to W. L. Lenhart and his personal account credited with $545, making up the amount of the falsification of the East Pike Run school district’s account. This for the purpose of showing a conspiracy between O. F. Piper and W. L. Lenhart by virtue of which Lenhart received the proceeds resulting from the .falsification of the books.
    The evidence is objected to on behalf of the defendant for the reason that there is no proof nor offer to prove that W. L. Lenhart ever had any knowledge that any money obtained by him from the People’s Bank of California was taken from the account of the East Pike Run school district; second, for the reason that there is no evidence so far introduced which even tends to show a conspiracy between W. L. Lenhart and O. F. Piper to defraud the People’s Bank out of any money whatever; third, for the reason that no notice of this item was furnished to the defendant by the commonwealth in its bill of particulars or supplemental bill of particulars; and fourth, as generally irrelevant and incompetent.
    The district attorney states it is referred to in the indictment which was marked as a bill of particulars.
    The Court: Do I understand counsel to say that this is included in one of the counts of the indictment against Piper?
    Mr. Underwood: In the large indictment.
    The Court: And which was marked for bill of particulars?
    Mr. Underwood: For bill of particulars.
    The Court: Objection overruled, offer admitted and bill sealed for defendant.
    Mr Irwin: We would like to have that pointed out in the bill of particulars, your honor.
    Mr. Acheson: It is not mentioned specifically in the bill of particulars.
    Mr. Underwood: It is mentioned in the large indictment as one of the falsifications of the books, and that large indictment is marked for bill of particulars.
    Mr. Irwin: There is no charge of falsification of the books against W. L. Lenhart now on trial.
    Mr. Acheson: But the large indictment against O. F. Piper containing about 200 counts is marked in the tenth paragraph or in one of the paragraphs of this bill of particulars, as a part of the bill of particulars, and that indictment charges the falsification of the books and false entries made by O. E. Piper.
    Mr. Underwood: The twenty-fifth and twenty-sixth counts.
    (Show same to defendant’s counsel.)
    Mr. Underwood: Under the tenth paragraph of the bill of particulars, the defendant, W. L. Lenhart, having been notified as follows: “That pursuant to and in accordance with the said false, fraudulent and malicious combination, conspiracy, confederation and agreement, the said O. F. Piper did unlawfully, fraudulently and falsely make the false entries and do the divers other false, fraudulent and illegal acts, things and transactions enumerated and mentioned in the bill of particulars furnished in the case of the Commonwealth against O. F. Piper at No. 109, February Term, referring to the first 190 counts in the indictment against the said O. F. Piper at the said number and term, which said unlawful and fraudulent transactions were done with the knowledge and consent and by the aid and counsel of the said William L. Lenhart, for the purpose of falsifying the records of the said People’s Bank of California, Pa., and concealing and covering up proof of the unlawful payment of large sums of money to him, the said William L. Lenhart, by the said O. F. Piper, cashier of said bank.” Now, there is notice to them that he is claimed to be a party to every one of those transactions, — it is proposed to prove by the witness on the stand that the $1,345 mentioned in the twenty-fifth and twenty-sixth counts of the indictment against O. F. Piper, made part of the bill of particulars by paragraph 10 of the bill of particulars furnished W. L. Lenhart, became the property of the said W. L. Lenhart by a credit to his individual account of $545 and the issuing of a draft for $800, the balance of the amount, to the said W. L. Lenhart. This for the purpose of showing a conspiracy between O. F. Piper and W. L. Lenhart to defraud the People’s Bank of California.
    The evidence is objected to first, for the reason that there is no proof nor offer to prove that the People’s Bank of California did not receive the said sum of $1,345 at the-time that Lenhart’s account was credited with $545 and that the $800 draft was issued, to him; second, there is no proof nor offer to prove that by means of the issuing to him of the $800 draft and the crediting of his account with $545 he, the said W. L. Lenhart, unlawfully obtained any money from the People’s Bank of California; and third, for the reason that the evidence is not embraced in the bill of particulars furnished; while said bill of particulars refers to and attempts to make part of it the indictment against O. F. Piper, the twenty-fifth and twenty-sixth counts of that indictment do not allege that any credit was to the account of W. L. Lenhart nor that any draft was passed to him, to cover up which the said alleged false entries were made; and generally as irrelevant and incompetent.
    The Court: Supposing they have shown that there was.an unlawful combination—
    Mr. Irwin: But they have not; and that is another objection we offer; and we submit there ought to be some evidence of that before this all goes before the jury, because if it goes into the jury box it is bound to make a lodgment there.
    The Court: They have shown that there is something over 600 checks, a lot of drafts and other things, — dealings between Piper and Lenhart, — that did not go on the bank books at all.
    Mr. Irwin: They have not shown that a single one of them was not paid.
    The Court: Can you say that the court'could not admit this testimony in view of what has already passed? The objection is overruled, the offer admitted and bill sealed for the defendant.
    Check marked exhibit “ E-3. ’ ’ Sheet from bank book marked exhibit “F-3.”
    Witness shown exhibits “T-2,” “E-3” and “F-3.”
    “ Q. Mr. McClain, the falsification in the column for individual deposits of $1,345 of date October 4, 1907, is on what book of the bank? A. That is on the general ledger. Q. And just explain what that falsification of the record was, the amount and from whose account taken? ”
    Offer asked for.
    The commonwealth offers to have the witness explain from the general ledger from whose individual account on the individual ledger the $1,345 was abstracted.

      Mr. Irwin: And that it was taken from the account of the East Pike Run school district?
    Mr. Underwood: I think that is what it will show.
    Mr. Irwin: Well, the offer ought to include that.
    The evidence is objected to first, as irrelevant.and incompetent; second, there is no proof or offer to prove that W. L. Lenhart had any knowledge of the alleged illegal transaction; and third, there is no notice to the defendant in the commonwealth’s. bill of particulars that that alleged false entry was made by transferring that amount from some other account in the bank; and generally as incompetent and irrelevant.
    The Court: Objection overruled and offer admitted and bill sealed for the defendant. It is substantially the same offer as before. [20]

      “ Q. And just explain what that falsification of the record was, the amount and from whose account taken? A. The amount was charged in the individual ledger on the sheet of the East Pike Run Township School, $1,345, and deducted from their balance. This entry is not dated but follows another entry dated August 13, 1907, that was the last part of the transaction. I am starting in wrong, I think. On November 8,1906, a draft on the People’s National Bank of Pittsburg, for $800, was issued to W. L. Lenhart. This draft was not put through the work nor deducted from our balance, — or the People’s Bank balance in Pittsburg. On November 9,1906, the account of W. L. Lenhart was credited $545 to make good an overdraft of $515.71. This did not come through the daybook or regular book of a bank, consequently the books were out of balance, the $800 on the eighth and the $545 on November 9, 1906. On March 7, this amount was taken from the general ledger by decreasing the account called individual deposits, March 7. This amount was again restored to individual deposits by increasing that account on October 3, $1,345, and at the same time offsetting that by increasing the time loans $1,345. I might say the final resting place of the deduction was in the account of the East Pike Run school district, as their account at the time of closing was short $1,345 from the amount they should have had. Q. What is that, Mr. Piper? A. That is a sheet from the individual ledger showing the account of the East Pike Run school district. Q. And what falsification do you find of that account and of what date? ”
    This evidence is objected to for the reason that there is no notice in the bill of particulars of any falsification of the account of the East Pike Run school district.
    The Court: Objection overruled and bill sealed for the defendant.

      “ A. It is a charge of $1,345 against the East Pike Run school district. Q. And that was a falsification, was it? A. It was. There was never no charge due them. Q. And what was done with that money taken from the account, that $1,345? ”
    (Witness shown exhibit “T-2” and also exhibit “Er3”.)
    " A. On November 8,1906,1 issued to W. L. Lenhart a draft on the People’s National Bank of Pittsburg for $800 on which he gave me a check for $800, and I was to hold the check up until he could tell me when to present it; the time never arrived on which he had money to meet it, or he never informed me of such a fact, and later I cashed some checks which made his account overdrawn, and I purported to give him a credit of $545 which I did on his individual account, and in May or June, or the time we straightened all this stuff up, among the notes he gave me was one for $1,345. Q. When he gave you that note for $1,345 did you explain to him why it was necessary? A. Yes, that was figured in; it was to cover the $800 check and $545 deposit or credit I had given him.” [21]
    Defendant presented these points:
    3. If the jury find that William L. Lenhart borrowed the money from the bank in good faith, with the intention on his part to repay it, the verdict should be for the defendant.
    Affirmed if the jury further find from all the evidence in the case that the money obtained by the said Lenhart from said bank through the cashier Piper, was procured by lawful methods on his part and that he had no knowledge, understanding or agreement previous to his procurement of it, or when he did procure the money of the cashier Piper’s furnishing it to him by the use of unlawful means withheld from the bank to its injury or the violation of the laws of the state banking department. [1]
    4. If the jury find that O. F. Piper, cashier, loaned the money to William L. Lenhart in good faith, with the intention and understanding on the part of Piper that it should be repaid, the verdict should be for the defendant.
    This point is affirmed if the jury further find from the evidence in the case that in the admitted dealings between the cashier Piper and the customer W. L. Lenhart they had not corruptly agreed together, or understood each other that the money the cashier furnished the customer, the said Lenhart, for which he applied was not furnished to the prejudice of the bank, or in violation of the banking laws. [2]
    6. Before the jury can convict the defendant they must be satisfied from the evidence, beyond a reasonable doubt, that at the time the defendant, W. L. Lenhart, obtained the money from O. F. Piper that O. F. Piper in furnishing that money to William L. Lenhart intended to cheat and defraud the bank, and that William L. Lenhart knew that O. F. Piper in furnishing that money to him intended to cheat and defraud the bank. And they must further find that when William L. Lenhart received that money he received it with the intention of defrauding the bank, and that O. F. Piper at the time knew that William L. Lenhart intended to defraud the bank.
    Before the jury can convict they must find from all the evidence in the case that there was either an agreement, or a course of dealing between the parties charged known to each other with the use of the bank’s money to do an unlawful thing or to do a lawful thing in an unlawful manner; with this statement the point is affirmed. [3]
    7. That the testimony of O. F. Piper, he being indicted as an accomplice and having plead guilty to the embezzlement of the funds of the bank and having falsified the books of the bank, should be received with caution by the jury.
    If an accomplice testifies truthfully, as you believe, you have the right to consider his testimony carefully. Affirmed. [4]
    2. That the supplying or writing of the name of M. L. Burd or H. C. Fox on checks made to their order, but belonging to William L. Lenhart, without any intention to defraud or injure the said M. L. Burd or H. C. Fox, they having no ownership or interest in the said check, where said checks were issued by O. F. Piper knowing that they were to the credit of W. L. Len-hart, and that M. L. Burd or H. C. Fox had no interest whatever in the funds, does not constitute forgery.
    Affirmed, but if the jury find from all the evidence in the case that the use of said names as admitted was agreed between Piper the cashier and W. L. Lenhart to be used for the purpose of preventing banks, including the People’s Bank of California, Pa., from knowing or learning the extent of Lenhart’s dealings with said bank or banks for the purpose and to the injury of the said People’s Bank of California, Pa., or in violation of the state banking department laws, it was an unlawful agreement and for a corrupt purpose. [5]
    The court charged in part as follows:
    [In other words, we will tell this jury, that if they find Lenhart and Piper, by an agreement expressed or implied, used the money of this bank and kept their transactions off the books, in secret pouches or places hidden from the directors, then that was an understanding and agreement between them that was a conspiracy, by an agreement to do an unlawful thing, and the offense, the gist of the offense of conspiracy, would then be shown in a corrupt combination between Lenhart and Piper.] [6]
    Verdict of guilty, upon which the defendant Lenhart was sentenced to pay a fine of $500 and undergo an imprisonment of two years.

      Errors assigned among others were (1-17) various instructions; (18) that the charge was inadequate; (19-21) rulings on evidence, quoting the bill of exceptions.

      B. W. Irwin and John M. Freeman, with them Jas. A. Wiley, for appellant.
    Before the jury would be warranted in convicting the defendant, they would have to find that Piper and Len-hart had a common purpose supported by a concerted action to defraud the People’s Bank, that each of them intended to defraud the bank, and that each of them understood that the other intended to defraud the bank: Ballantine v. Cummings, 220 Pa. 621.
    It is competent for a jury to convict on the testimony of an accomplice alone. But the source of this testimony is so corrupt that it is deemed unsafe to rely upon, and the court always considers it their duty to advise a jury to acquit, where there is no evidence corroborative of the accomplice: Watson v. Com., 95 Pa. 418; Com. v. Craig, 19 Pa. Superior Ct. 81.
    What was done by Lenhart and Piper under the testimony was wholly consistent with mere irregular and careless business methods without any criminal intent whatever.
    The following cases we think show conclusively that the court erred in taking this question of criminal intent from the jury: People v. Flack, 125 N. Y. 324 (11 L. R. A. 807) (26 N. E. Repr. 267); People v. Molineux, 168 N. Y. 264 (61 N. E. Repr. 286); Wood v. State, 47 N. J. L. 461 (1 Atl. Repr. 509); Smith v. Kinne, 19 Vermont, 564; Riley v. State, 16 Conn. 47; Com. v. Tack, 1 Brewster, 511; Com. v. Ridgway, 2 Ash. 247.

      Owen C. Underwood, with him C. L. V. Acheson, district attorney, T. H. W. Fergus, assistant district attorney, and R. H. Meloy, for appellee.
    The court could not possibly have affirmed the third and fourth points without qualification unless he said in effect to the jury, that if Piper and Lenhart had a hope or belief that they would some day be able to straighten out the tangle and pay back the money, they were not guilty of conspiracy: Ballantine v. Cummings, 220 Pa. 621; Com. v. McMurray, 198 Pa. 51.
    Although parts of a charge when taken separately may seem to be erroneous, and indicate a leaning to one side or the other, there is yet no error if taken as a whole the questions at issue are left to the jury: Reese v. Reese, 90 Pa. 89; Com. v. Mika, 171 Pa. 273; Johnston v. Com., 85 Pa. 54.
    Although the uncorroborated testimony of an accomplice should be received with caution, yet there is no rule of law forbidding a conviction upon his evidence alone.
    Com. v. Sayars, 21 Pa. Superior Ct. 75; Com. v. Craig, 19 Pa. Superior Ct. 81; Cox v. Com., 125 Pa. 94.

      October 11, 1909:
   Opinion by

Henderson, J.,

The appellant was indicted with O. F. Piper for conspiracy to cheat and defraud the People’s Bank of California, Pa., by unlawfully and fraudulently obtaining divers large sums of money therefrom. Piper having pleaded nolo contendere the case went to trial against Lenhart alone. The evidence of the commonwealth showed that the appellant had obtained from the bank by transactions extending through a period of about two years sums of money amounting in the aggregate to about $69,000 for which no adequate security was given and which was lost to the bank; that no record of these transactions was regularly entered on the books of the bank and that the directors or officers of the bank other than Piper were not informed that the money was so obtained; that numerous checks of Piper, the cashier, were issued to a fictitious person on the appellant’s account; that a course of “kiting” checks was engaged in by the appellant through the People’s Bank; that the books of the bank were falsified by Piper; that the appellant caused to be printed a simulated letter head of the state banking department to be used by Piper in exhibiting to the directors of the bank alleged letters from that department; that the appellant knew that the books of the bank were falsified and that the bank was not receiving any consideration for its funds involved by the cashier’s checks and the appellant’s kiting operations. The defendant made a general denial of any intention to defraud or knowledge that the books of the bank had been altered or that he knew what use was to be made of the imitated letter heads of the banking department, and contended that his liability to the bank did not éxceed about $29-,000. The defendant’s first, third, fourth and sixth points present in different forms the first proposition for which the learned counsel for the appellant contend. That was, as stated in the sixth point, that in order to justify a conviction the jury must be satisfied that at the time the defendant obtained the money from Piper he intended to defraud the bank and that Piper in furnishing the money also intended to defraud the bank. This proposition was affirmed with the qualification in substance that if the money was knowingly obtained by unlawful means not communicated to the bank or in violation of the laws of the state banking department the defendant might be convicted. The answers to these points are made the subject of the first, second and third assignments of error. The argument for the appellant is that if he had an intention to repay when the money was obtained and Piper had an honest belief that the defendant would repay, the charge of conspiracy could not be sustained, but the commonwealth’s case does not depend on its ability to show that at the time each sum of money was obtained from the bank there was a purpose of the cashier and the defendant to cheat. The evidence shows clearly that much of the prejudice to the bank resulted from the manner in which the business was transacted by the defendant and the cashier, the effect of which was to keep the directors of the bank in ignorance of the existence of the loans and thereby deprive them of an opportunity to collect the indebtedness before it had grown to the large proportions which it subsequently assumed and while the defendant had some property within reach of his creditors. The good intention of the parties at the time the money was taken from the bank is not a sufficient answer to the evidence of the commonwealth tending to show an arrangement between the cashier and the appellant to conceal their operations to use large amounts of the money of the bank without compensation and by unlawful methods to prevent the state banking department from acquiring information of the true condition of the bank’s business. It is not pretended that there was not an understanding and intention on the part of Piper and the defendant to adopt the method used by the latter in obtaining the money and postponing payment thereof, and if the things were done which are charged in the commonwealth’s evidence an original intention on the part of the defendant to pay the money received does not relieve the defendant from answering the accusation. A combination to defraud could have been entered into at a later stage of the business, and the commonwealth’s evidence tends to show that such was the fact.

Piper was called as a witness for the commonwealth. An objection is made in the fourth assignment of error that the answer of the court to the defendant’s seventh point should have been an affirmance without qualification. The point asked the instruction that the jury should receive the testimony of an accomplice with caution. This point was affirmed with the qualification that if the jury believed the testimony of an acr complice they were justified in considering it carefully. There is no rule of law which forbids a conviction on the testimony of an accomplice, alone. The appearance of the witness and his manner of testifying may so impress a jury as to satisfy them of the truth of his evidence: Cox v. Com., 125 Pa. 94; Com. v. Craig, 19 Pa. Superior Ct. 81. But the instruction on the subject did not end with the answer to the point. In that part of the charge set forth in the seventeenth assignment the jury was told that they must receive the testimony of an accomplice with caution throughout and with great caution where it is not corroborated in any instance and even where corroborated that caution must still be observed. The answer to the point and the instruction of the court in the general charge set forth the law clearly and correctly on that subject.

Part of the commonwealth’s case consisted of evidence that cashier’s checks were issued by Piper payable to M. L. Burd or to H. C. Fox, which were for the use of the appellant, the payee having no interest whatever in the fund to be produced by the checks. The defendant’s second point asked the court to say that the writing of the name of said Burd or Fox on the checks made to their order but belonging in fact to the defendant did not constitute forgery. This point was affirmed with the further instruction that if Piper and the appellant agreed to use the checks in the name of Burd or Fox for the purpose of preventing banks, including the People’s Bank of California, from knowing or learning the extent of the defendant’s dealings with that bank to the injury of the bank, the agreement was unlawful. This is made the subject of the fifth assignment of error. The point might well have been refused, for there was no allegation on the part of the commonwealth that the indorsements on these checks were forgeries. It was not material to the prosecution whether the names of the payees were indorsed on the checks by them or by Piper or the defendant. The transactions relating to these checks were introduced to show the method by which some of the funds of the bank were obtained and to show the understanding between Piper and the defendant that that was to be done in a way to mislead and to keep from the knowledge of the directors of the bank or the officers of other banks the extent of the defendant’s operations. Piper had.testified that the object of using the name of Miss Burd in the checks was to keep the name of the defendant from going through the Mellon National Bank of Pittsburg or the First National Bank of California because he, Piper, had objected to so many of the defendant’s checks passing through their bank to other banks. It was entirely appropriate, therefore, for the court to tell the jury in answering the point what the bearing of the evidence was.

The sixth assignment relates to a statement of the trial judge to the counsel indicating what his instruction to the jury would be in regard to the evidence relating to an understanding that the money of the bank should be used and the transactions not entered on the books of the bank. The criticism made on this remark by the appellant is that there was no evidence that the defendant’s transactions with the bank were hidden from the directors, but the testimony of Piper is quite to the contrary and it is corroborated by the testimony of Miss Burd in material parts. The evidence relating to the imitated letter heads of the banking department was also pertinent in that connection. Moreover, the language excepted to was not addressed to the jury and is not contained in the charge of the court. It was the court’s announcement to the counsel of the view he entertained on that part of the evidence. The assignment cannot, therefore, be sustained.

Assignments seven to seventeen, inclusive, bring up portions of the charge for review. The criticisms made thereon are creditable to the diligence and acuteness of the learned counsel for the appellant, but we are not persuaded that any one of them presents an error for which the case should be reversed. It is a very familiar rule that in reviewing the charge of a trial court a fragment of it is not to be judged without regard to the other parts, and where the charge taken as a whole correctly expresses the law appropriate to the questions involved the judgment will not be reversed. Even where it indicates a leaning toward the side of the commonwealth that is not a sufficient ground for reversal where the charge as a whole contains a correct and adequate presentation of the law applicable to the facts which the testimony tended to establish; and even when a strong opinion on the evidence is expressed as in Johnston v. Com., 85 Pa. 54, that is held not to be erroneous when considered in connection with the other parts of the charge. The argument that the language of the court as set forth in the seventh, eighth and tenth assignments takes out of the case the question of intent loses its force when the whole charge is considered. The defendant's first point called for an instruction that the gist of the offense of conspiracy is an intention on the part of the defendant to commit a crime, and that unless the jury found that both of the defendants intended when the loans were made to defraud the bank the verdict must be for the defendant. This point was affirmed by the court. The jury was thus clearly told that the commonwealth must show that the parties indicted intended to commit the fraud charged. The jury was further instructed in different parts of the charge that they must determine from the evidence whether there was an unlawful combination formed between the appellant and Piper to commit the offense charged in the indictment. We think there can be no doubt that the jury understood very clearly that the burden was on the commonwealth to show not only that the defendant got the money from the bank, but that he and Piper intended to commit a fraud against it. It is carrying criticism to an extreme limit to hold that the portion of the charge set forth in the ninth assignment is a recital of the testimony showing what Lenhart and Piper had done. The court in the portion of the charge immediately preceding the part here objected to drew the distinction between a corrupt combination and the overt act tending to show it, and then used the language complained of. It was evidently intended as an illustration' to show how an act lawful in itself might be committed in an unlawful manner and thereby subject the perpetrators to criminal responsibility. In view of what the record showed and Piper testified to no harm resulted to the appellant from that part of the charge contained in the thirteenth assignment, and if the trial judge inadvertently used the word “confessed” in stating the effect of the plea of nolo contendere his attention should have been called to that if it was deemed a matter of importance. Piper testified to a state of facts which amounted to a confession of guilt of the offense charged, and the possibility that the jury may have been misled by the language used is most remote.

The references of the court to the claims of the commonwealth discussed under the fourteenth, fifteenth, and sixteenth assignments are not in violation of any rule of law and were justified by the commonwealth's evidence. We do not understand them to be the assertion of conclusions established by the evidence but references to the contention of the commonwealth that the evidence did prove what was claimed.

The final objection to the charge is that it was unfair, inadequate and prejudicial to the defendant. We have examined it carefully in the light of this objection, but are not convinced that there is any support for the complaint. It covers the case with sufficient fullness and directs the attention of the jury to the principal features of the evidence, and near the conclusion contains the following instruction: “All that means is that you should proceed with caution and care and deliberation and consider all the evidence in the case, taking into account the denial that the defendant makes of any wrongdoing here, and the corroborative testimony of his side of the case, claiming that he was simply banking in the regular way and was not chargeable with any irregularities that were committed by Mr. Piper who was the cashier of the bank, in the bank, by which the bank lost its money, if it did, through him, when he was not a party — if he was not — to any unlawful combination or agreement with the cashier to do the unlawful acts which evidently did result in this bank being closed by reason of losing its assets.” If more frequent reference was made to the evidence introduced by the commonwealth it was because the case for the prosecution involved many facts established by books, documents and oral evidence, while the case for the appellant was largely made up of his own testimony, but we do not find anything in the charge to show an unfair presentation of the appellant’s case. Complaint is made that the court omitted to call attention to parts of the evidence favorable to the defendant, but this may be said also with reference to the evidence offered for the prosecution. The evidence was voluminous, and the trial continued for several days. If the trial judge neglected to charge on some subject which was deemed important, fairness required that his attention should be called to it before the jury was sent out in order that the omission might be corrected. We do not regard the charge as either unfair or inadequate for the question of the existence of the alleged conspiracy, and the intention of the parties indicted was clearly and sufficiently brought to the attention of the jury.

The argument in support of the nineteenth assignment of error assumes that the checks referred to were offered for the purpose of showing that the bank was defrauded of the amount of money expressed therein, but this was not the purpose stated by the commonwealth when the offer was made. It may be that as an independent fact the evidence was not sufficient to make out a case, but it was clearly competent in support of the charge that the appellant and Piper had entered into a fraudulent arrangement to permit Lenhart to use the money of the bank. The transaction was irregular in form, was for the benefit of Len-hart and was not made a subject of record in the bank. It tended to sustain the complaint that a conspiracy existed.

Exception is taken in the twentieth and twenty-first assignments of error to the action of the court in admitting evidence not sufficiently set forth in the bill of particulars and especially that the evidence relating to the Pike Run School District account was introduced without notice. The bill of particulars put the defendant on notice of the matters charged against Piper in the indictment against him individually at No. 109, February Term, the twenty-fifth and twenty-sixth counts in which indictment related to the transaction proved against the defendant. That notice informed the defendant that the commonwealth would show that on October 4, 1907, Piper entered in the individual deposits account of the ledger of the People’s Bank the total amount of individual deposits as being $136,189.18, whereas the true amount was $134,844.18; that this entry was made with intent to defraud the bank and with the knowledge and consent of the appellant and for his benefit. The evidence offered was to show that the amount of the fraudulent entry made by Piper was deducted from the account of the school district and that this amount was given to the appellant in the form of a draft for $800 on the People’s National Bank of Pittsburg and a credit on an overdraft of $515.71. The bill of particulars covered this transaction and if it did not sufficiently explain the method by which the money was obtained it was the duty of the defendant to ask for a more specific bill of particulars which the court would have granted. The remaining specifications of error do not require special notice. We are not satisfied that the action of the court was erroneous with respect to any of the matters complained of.

The judgment is affirmed and it is ordered that the defendant appear in the court below there to be committed to serve that part of his sentence which had not been undergone at the time this appeal was made a supersedeas.