text:
    Harding & Dubois, Appellants, v. Horace Lloyd.

      False pretense — Province of court and jury — Inadequate charge.

    The essence of the crime of false pretense is the intent, but the foundation of a contract is the assent of two minds meeting upon common ground. The failure of a trial judge to distinguish in his charge between what constitutes the crime of false pretense and what false representations will avoid a contract, is such error as to require reversal.

      Contract — False representations to avoid a contract.

    The foundation of a contract is the assent of two minds meeting upon common ground. If that assent is based upon false representations made by one party to the contract and believed and relied upon by the other, there is no real foundation for the assent and the law holds the contract void.

      Contract — Misrepresentation of facts.

    Misrepresentations of a material fact, which were relied on by the plaintiff and which he had a right to rely on, and which induced his assent to the contract, constitute such a fraud as will avoid the contract. Brown v. Eccles, 2 Pa. Superior Ct., 192, followed.

      Practice, Superior Court — Assignments of error — Points.
    Where no points are submitted to the court, criticism of the charge of the court, in an assignment of error, as to what is not contained in such charge is unfair to the court, and such assignment, not having been specially allowed as an exception, will be disregarded.
    Argued Nov. 16, 1896.
    Appeal, No. 30, Nov. T., 1896, by plaintiffs, from judgment of C. P. Chester Co., Jan. T., 1895, No. 62, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Sheriff’s interpleader to determine ownership of certain goods.. Before Waddell, P. J.
    The issue was a sheriff’s interpleader directed by the court below to determine the ownership of certain goods claimed by the plaintiffs and levied upon by the sheriff under a writ of fieri facias, wherein Horace Lloyd was plaintiff and E. P. Jester defendant, as the property of the said E. P. Jester.
    The plaintiffs in the interpleader were manufacturers and wholesale dealers of shoes in the city of Philadelphia. The defendant was an execution creditor of one E. P. Jester, who had a retail store in Phoenixville, Chester county, Pa. A lot of shoes levied -upon in. Jester’s store under the execution of the defendant was claimed by the plaintiffs, who alleged that said shoes had been procured of them by Jester by fraud, and that said fraud vitiated his title thereto and entitled them to take possession of the same. The testimony of fraud and false representations is sufficiently indicated and set out in the opinion of the Superior Court. The value of the goods was 1180.
    Verdict for defendant in the interpleader. Plaintiffs appealed.

      Errors assigned were (1-4) to the charge of the court; (5) in submitting to the jury the construction of the language testified to by plaintiffs’ witness as to the representations relied on; and in not instructing the jury that if they believed the representations as testified to by plaintiffs’ witnesses that the goods in dispute were parted with on the faith and credit of such representations, in that event the verdict should be for the plaintiffs; (6-8) error in charge of the court (the language of the judge’s charge and the objections thereto are sufficiently indicated in the opinion of the Superior Court).

      R. J. Monaghan, with him Samuel D. Ramsey, for appellants.
    The plaintiffs were entitled to have the jury instructed in the precise language of the exception noted, which constitutes the fifth assignment of error.
    The charge of the learned trial judge, it is believed, correctly instructed the jury as to the law in cases of fraudulent insolvency, but entirely overlooked the fact that the case at bar was one of obtaining goods under false pretenses, to which the principles laid down by him were inapplicable: Meyerhoff v. Daniels, 173 Pa. 559; Brown v. Eccles, 2 Pa. Superior Ct., 197.
    The learned trial judge submitted to the jury whether there was an intent on the part of the vendee at the time of the sale to defraud the seller. This point, it is believed, was immaterial: Regina v. Dawson, 29 Law Jour. (Eng.), 263.
    The charge of the learned trial judge was inadequate and unfair in that it did not sufficiently present the plaintiffs’ theory of the case: Richards v. Willard, 176 Pa. 204; Minich v. Gring, 1 Pa. Superior Ct. 484.

      It was the province of the jury to find the disputed facts, but the duty of the court to declare the effect of them when found: Beihofer v. Loeffert, 159 Pa. 365.

      Thomas W. Pierce, for appellee.
    It requires artifice, trick or false pretense as a means of obtaining possession to avoid the purchase. There must be bad faith, an intent at the time to defraud the seller: Rodman v. Thalheimer, 75 Pa. 237; Wessels v. Weiss Bros., 156 Pa. 597.
    January 18, 1897:
   Opinion by

Beaver, J.,

We are somewhat reluctant to send this case back for a retrial. The evidence as to whether the alleged false representations made by Jester, the plaintiffs’ vendee, were made for the purpose of securing credit for future purchases or for the purpose of inducing them to carry his notes for purchases previously made is not as clear and satisfactory as it should be. If for the latter purpose, there could, of course, be no recovery in this case. If for the former, it should clearly appear.

Jester, the common debtor of plaintiffs and defendant, having become indebted to the plaintiffs, after a course of dealing extending through several years, and his account being unsatisfactory, was sent for by the plaintiffs on or about October, 1893, for the purpose of discussing the condition of his account as it then was and lfis financial condition. There is little question that the object of the visit was to discuss the then present indebtedness. The conversation at the time was with Mr. Harding “upon the subject of Ms (Jester’s) bills — Ms indebtedness,” who, after detailing the particulars of the conversation said in answer to questions which were rather leading in their character:

“ Q. Was or was not the purpose of your conversation with Mm to learn lfis financial condition? A. His financial condition; that is just what it was. Q. Was or was it not with a view of continuing the line of credit ? A. It certainly was. Q. Did you continue the line of credit by reason of those representations? A. We certainly did. Q. Would or would not you have continued the line of credit, if the statements had not been made that were made by Mr. Jester? A. If he had given, me a statement as he gave here to-day, I certainly would not. have continued Mm in busmess.”

Mr. Dubois, the other plaintiff, speaking of the same conversation and the report in regard to it, as made by Mr. Harding, says:

“Q. Was the report satisfactory or not? A. Decidedly. Q. By virtue of that, did you continue to extend him a line of credit? A. Yes, sir. Q. And the sales you made after that, did you make them upon faith in the representations that he then made ? A. Yes, sir, I felt well in doing' it, because he (Harding) was satisfied that everything was correct that Mr. Jester told him; and under those conditions, it made it easier for me, because I didn’t have to have any more controversy with him in regards’ to that subject. It made it very pleasant after that time.”

The same witness, who at a later date visited Phoenixville fon the purpose of consulting Jester in regard to his account and the manner in which he met his commercial paper and the help which it was necessary for the plaintiffs to extend to him in taking up his notes, says, in answer to questions put to him upon'the subject:

“ Q. Did you continue to sell Jester goods ? A. I took an order from him on that day, settled up his account from about February until that date and got notes from him. He gave them to me and said he hoped there would be care from this out taken of the notes. Q. Was or was it not agreed between you and Mr. Harding that he should have a continuation of his line of credits? A. I got home; he was satisfied with what I told him and we continued to sell him up to three days before the time of his failure. Q. Did you continue to sell him on the faith of the representations ? A. Yes, sir, because I believed what Mr. Jester said, and I am sorry I (?) didn’t keep on.”

The evidence as to the representations made by Jester in these several conversations and the question of their falsity was submitted to the jury, as well as the fact as to whether or not the plaintiffs had relied upon them in their subsequent dealings with Jester. We are called upon to consider the manner in which this evidence was submitted to the jury for their finding.

The appellant has placed upon record eight several assignments of error, all of them except the fifth dealing with the charge of the trial judge in the court below. After reading the clear and concise per curiam opinion in Rodman v. Thalheimer, 75 Pa. 237, in which the question as to whether or not the insolvency of a vendee of goods and his knowledge of it are in themselves such fraud as will set aside a sale and enable the vendor to rescinda contract and replevy the goods, after they have come fairly and fully into the possession of the vendee, is passed upon and decided in the negative, the trial judge goes on to say: “Now that is the principle of law that governs this case. It is not enough that false representations were made by Mr. Jester, but it requires artifice, trick or false pretense, in order to obtain possession of the goods, and there must be bad faith in the transaction and intent at the time to defraud the seller. You will see how far these representations made by Mr. Jester, testified to by Mr. Harding, if they took place as Mr. Harding tells you they did — how far they sustain the requirements of the law, as I have read them to you, whether they were communicated to Mr. Harding for the purpose of obtaining possession of the goods and with the intent to defraud these plaintiffs.” This part of the charge is covered by the first assignment of error. We think the assignment must be sustained. It is probable that the trial judge intended to say, following the language in Rodman v. Thalheimer, supra, that it is not enough that the insolvency and the mere knowledge of it were such a fraud as to set aside the sale and enable the seller to rescind, etc., it requires artifice, trick or false pretense, in order to obtain possession of the goods. But the rule laid down in Rodman v. Thalheimer did. not apply in this case. If false representations were made as to a material fact concerning which Jester had knowledge and the plaintiffs had not, and those representations were made for the purpose of obtaining future credit and were relied upon by the plaintiffs, they loere a false pretense and were in themselves sufficient to constitute fraud. The language in this part of the charge in regard to the intent of Jester to defraud the plaintiffs, as also that upon the same subject in the second, third and fourth assignments of error, is not a correct representation of the law in a civil proceeding. It was said in Smith v. Smith, 21 Pa. 367, a case which has been somewhat severely criticised of late, although not as to this part of it: “We reject the strictness required in the evidence of fraudulent intent in the criminal offence of false pretence, because a man is chargeable civilly but not criminally for the fraud of his agent and also for the legitimate consequences of a dishonest representation, whether he intended to defraud or not.” It is true the Supreme Court says in the case from which the trial judge read that “ There must be bad faith or intent at the time to defraud the seller,” but this remark was made in connection with the declaration that “ The law in this state is not that insolvency and the mere knowledge of it are such a fraud as to set aside the sale and enable the seller to rescind and to replevy the goods, after they have come fully and fairly into the possession of the purchaser.” Where there are false representations, the intent to defraud is to be presumed and in themselves constitute the false pretense which will vitiate 'a sale, if relied upon by the vendor. In Meyerhoff v. Daniels, 173 Pa. 555, where goods had been obtained through the alleged false representations of an agent, Mr. Justice Green, in delivering the opinion of the court, says: “ The whole case should have gone to the jury with instructions that, if they believed that the goods in question were obtained by means of false representations made by Guggenheimer (the agent of the defendant) the verdict should be in favor of the plaintiff.”

In his statement of the question to be determined by the jury in the charge in the court below, the trial judge says: “ You are here simply to settle the question, Were these goods obtained by Mr. Jester by fraud, false representations, false allegations on his part?” If he had stopped there, no fault could be found with his statement of the question, but he goes on to say, “If they were and he acted deliberately, intentionally and with the. purpose of defrauding these people, then no title passed to him.” As already intimated, he evidently had in his mind the elements which constitute the crime of false pretense. The essence of a crime is the intent. The foundation of a contract is the assent of two minds meeting upon common ground. If that assent is based upon false representations made by one party to the contract and believed and relied upon by the other, there is no real foundation for the assent and the law holds the contract void. The failure to make this distinction runs throughout the entire charge and is found in the parts thereof assigned for error in the first, second, third and fourth assignments, which we are compelled to sustain. The recognized rule as to what representations will avoid a contract was stated by ns in Brown v. Eccles, 2 Pa. Superior Ct. 197.

No points were submitted to the court below by the plaintiffs. The criticism of the charge of the court, therefore, contained in the fifth assignment of error as to what is not contained therein is scarcely fair to the court; and, inasmuch as it does not seem to have been specially allowed as an exception, it is disregarded. As to the other assignments of error they are sufficiently passed upon by what we have said as to the first four.

It would have been more satisfactory to us, if the testimony introduced by the defendant had been printed, so that we could have determined more definitely just what were the issues of fact presented to and passed upon by the jury. The questions for the jury, as we understand the testimony, were: Were the representations of Jester, as testified to by the plaintiffs, actually made ? Were they made for the purpose of securing from them future credit ? Were they false ? Were they relied upon by the plaintiff? If these were the issues passed upon and found for the defendant in the verdict, it should not be disturbed, but the court being in error in the instruction to the jury as to the necessity for finding that there was intent on the part of Jester to defraud the plaintiffs at the time the representations alleged to be false were made by him, the case must be retried. Judgment reversed and a new venire awarded.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Mickle C. Paul, trading as Paul Brothers, Appellant, v. Henry Eurich, in trust for John B. Newhauser.

      Contract — Fraud—Knowledge of insolvency.

    Under the rule of Rodman v. Thalheimer the knowledge of insolvency-does not avail to avoid a contract in the absence of either artifice, trick or false pretense used by a vendee in obtaining possession of goods purchased.

      Contract — False representations — Question for jury.

    No false pretense can be set up to avoid a sale where the vendor sold with knowledge of vendee’s indebtedness for money borrowed, communicated by vendee and covering a practically truthful statement of his financial situation. Under such conditions there is no question to leave to the jury.

      Judgment — Satisfaction by mistake.

    Where the owner of a senior judgment satisfied it by mistake and the court subsequently struck off the satisfaction from the record, the judgment will not lose its priority of lien of junior judgments or other rights which have in no manner been prejudiced either by the entry of satisfaction or by the action of the court in striking it off.
    Argued Nov. 10, 1896.
    Appeal, No. 55, Nov. T., 1895, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1894, No. 27, on verdictfor defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Sheriff’s interpleader to try the right to certain property. Before Livingston, P. J.
    It appeared from the evidence that the plaintiff was a wholesale shoe dealer in Philadelphia. He, through his salesman, sold certain goods to John S. Newhauser who was operating a shoe store in Lancaster, Pa., having been previously engaged in business at Lebanon.
    The amount due for goods sold was $960.65, exclusive of interest. Of that amount $780.85 was for an order for shoes given on February 2, 1894; the balance in smaller amounts at different times, the last time on April 13, 1894.
    It was alleged by the plaintiff that the vendee at the time the first order was taken in February represented to plaintiff’s salesman that he was in good financial condition.
    On May 24, 1894, defendant confessed judgment to Henry Eurieh, as trustee, in favor of his father, John B. Newhauser,' for $6,240, with interest from April 1, 1894, and one in favor of his wife, Emma Newhauser, for $555.00 with interest from same date. Executions were issued on those judgments the same day, and the shoe store was closed by the sheriff. The stock was all new and nearly all bought from shoe dealers residing in other cities and practically nothing paid for, and most of the goods were in the original packages or cases, when levied upon, and most of the vendors knew nothing of the sale until after it was held.
    The judgment to the use of John B. Newhauser was satisfied and released by him on the record as of June 12, 1895, several months before this case was tried. On November 2, 1895, the court made an order to strike off from the record the entry of satisfaction. The proceeds of the sheriff’s sale, which was of shoes bought by John S. Newhauser and not paid for, were $2,160.50. The appellee, an execution creditor., bought nearly all the goods. The character of the representations made by the vendee to the plaintiff’s salesman are sufficiently indicated in the opinion of the Superior Court. The court directed verdict for the defendant. Plaintiff appealed.

      Frrors assigned were, (1-8) to the charge of the court, directing verdict for defendant and refusing plaintiff’s points; (9) in the answer to the third point, which point was as follows: “ The judgment upon which the execution, and proceedings are based (entered to April term, 1894, No. 382), having been satisfied and properly released on June 12, 1895, as per appearance docket, the lien and levy upon the goods in suit were destroyed, and the defendant has no standing in this suit.” The answer to which was: “The third point raises a question which does not really come into this case. It might be raised in payment out of the money or the distribution of it, but it cannot arise here; ” (10, 11) judge’s charge and answer to points; (12) in refusing to admit evidence as to the wife’s judgment.

      B. F. Davis, for appellant.

      Chas. I. Landis, with him A. H. Fritchey, for appellee.
    “ The intention of the buyer of goods at the time of purchasing goods not to pay, together with his insolvency at the time, and his knowledge of it not communicated to the seller, will not avoid the sale after the delivering of the. property sold. To avoid the sale there must be artifice intended and fitted to deceive practised upon the vendor in procuring the property : Smith v. Smith, Murphy & Co., 21 Pa. 367; Backenboss v. Speicher, 31 Pa. 324; Rodman v. Thalheimer, 75 Pa. 232; Cincinnati Cooperage Co. v. Gaul, 170 Pa. 545; Wessels v. Weiss Bros., 156 Pa. 592; Bughman v. Central Bank, 159 Pa. 94; Labe & Son v. Bremer’s Sons, 167 Pa. 15. As to the satisfaction of the father’s judgment, cited McCune v. McCune, 164 Pa. 611.

      January 18, 1897:
   Opinion by

Beaver, J.,

Tried by the rule clearly and concisely laid down in Rod-man v. Thalheimer, 75 Pa. 232, there was nothing in this case to be submitted to the jury. Admitting that Newhauser, the vendee of the plaintiff, was insolvent and that he knew it, there was neither artifice, trick nor false pretense used by him as the means of obtaining possession of the goods purchased from the plaintiff. All that he knew he communicated to the plaintiff’s salesman. Iiis financial condition was fully and frankly laid bare. The salesman testifies: “ I asked him about his financial standing, and he told me that he did not buy anything outside of us, Long & Davidson, Hathaway, Soule & Harrington and Carlisle Shoe Co. He said outside of that that he did zzot owe hardly anything. He told me his father helped him azid his father advanced him money — advanced hizn all the znoney he had in business izi Lebanon; and, if he came to Lancaster in business, he would help him. There would be no trouble whatever. He said he did not owe anything practically outside of his father, and then these bills he bought to opezi his store here. He never told me he had any money from his wife.” This conversation occurred in Lebanon before the rezzzoval of the store to Lancaster. It was a frank adznission that he was then izi debt to sundry parties beside the plaizztiff; that all the mozrey izi his business had been advanced by his father and his hope for the future, if he went to Lazicaster, was in his father, and that the goods necessary to open the ziew store were to be bought upon credit. What more could he say ? If the plaintiffs, upozi these representations, sold the goods, they did so at their own risk. The representations were made on the 2d of February, 1894. The figures representizig the indebtedness were given to the same salesman 24th of May, 1894. How many of the debts enumerated in the schedule were contracted after the 2d of February does not in anjr way appear. Viewed from any standpoizit, we think the trial judge izi the court below was justified in saying to the jury in this case, “ I do not see anything to leave to a jury.” This sufficiently disposes of the first, second, third, fourth, fifth, sixth, seventh, eighth and eleventh assignments of error.

John B. Newhauser, the father of the vendee of the plaintiff, for whose use a judgment had been confessed on the 24th of May, 1894, to Henry Eurich, conditioned for the payment of the sum of $6,240.00 by the son, John S. Newhauser, after the levy upon and sale of the goods of the defendant in the judgment and after the issue in this case had been made up, on the 12th of June, 1895, marked the judgment satisfied and released. Upon his application in November following, the court struck from the record of the said judgment the entry of satisfaction erroneously made thereon. The plaintiff in the trial of the case below offered in evidence the judgment and execution in the case of HeUry Eurich, for the use of John B. Newhauser v. J. S. Newhauser, real debt $6,240.00, with interest from April 1, 1894. The object evidently was to show the insolvency of John S. Newhauser. Having used it for that purpose, after his testimony closed, he called the attention of the court to the “ entry of satisfaction on docket entry of Judgment No. 332, April Term, 1894, which has been offered in evidence, dated June 12, 1895,” to which the court replied: “An order has been made to strike off the entry which has not yet been entered.” The action of the court in striking off the entry of satisfaction of the above judgment is complained of and constitutes the ninth and tenth assignments of error. Without stopping to inquire whether the plaintiff could offer this judgment in evidence for one purpose and, after it has served that purpose, allege its satisfaction for a purpose altogether different, or whether the proceedings under which the entry of satisfaction were stricken off could be attacked collaterally in the present proceeding, it is perhaps sufficient for present purposes to say that the plaintiff was in no way injured by the action of the court in striking off the entry of satisfaction. There is no alie- • gation that the judgment was paid beyond the amount realized upon the sale of the personal property of J. S. Newhauser. The rights of the parties to this controversy remained precisely the same after the entry of satisfaction was stricken off by the court on the 2d of November, 1895, as they were on the 12th of June, 1895, before the entry of said satisfaction. The conduct of the plaintiff was not in any way influenced by the entry of satisfaction, nor did he acquire any rights thereby. He has, therefore, not been prejudiced by the action of the court in striking it off. McCune v. McCune, 164 Pa. 611, lays down the principle which governs and should govern in this case. The refusal to admit in .evidence the plaintiff’s offer of the judgment of Emma S. Newhauser v. John S. Newhauser and the execution issued thereon, to be followed by proof that Emma S. Newhauser was the wife of Jolin S. Newhauser, was proper. There was no offer to show that the judgment was fraudulent or, that the indebtedness of the husband to the wife was in existence at the time of the representations made by the husband to the plaintiff’s salesman at the time the goods in controversy in this suit were purchased. The testimony offered could, therefore, have no bearing whatever upon the issue, was clearly'irrelevant and was properly rejected. The assignments of error are, therefore, all overruled and the judgment is affirmed.


author: Smith, J., Rice, P. J., Wickham, J., Willard, J.,

text:
    Commonwealth of Pennsylvania v. William H. House, Appellant.

      Criminal law — Embezzlement—Juror—Challenge for cause.

    Where it clearly appears that a juror has formed a fixed opinion of the prisoner’s guilt, he should not be permitted to say that he can act impartially, or at least he should not be accepted on his own dictum.

      Qualification of juror — Preconceived opinion.

    Where a juror testifies on his voir dire that he had formed and expressed an opinion with Reference to the guilt or innocence of the defendant, but not of a character to prevent him from fairly trying the case, and that if sworn as a juror he could render a verdict in accordance with the evidence produced in court, such juror is prima facie competent.
    But this preconceived opinion becomes a fatal objection when it appears that the jm'or was the owner of a newspaper in which many editorials had been published pronouncing defendant guilty, and that the juror had read these editorials and approved of the sentiments in them with regard to the case.
    As evidence of prejudgment the deliberate and repeated publication of opinions with the juroi-’s approval, in a newspaper in part owned by him, is not less conclusive than the deliberate expression of opinion, reduced to writing and signed by the juror, which in Com. v. Cleary, 148 Pa. 26, was held to disqualify.

      Practice, Superior Court — Assignments of error — Rules of court.

    Assignments are defective which do not contain references to the preceding’testimony necessary to make them self-explanatory and to show fully on’what they are based. .

      While the practice of presenting an excerpt from the stenographer’s notes, in an assignment of error, has obvious advantages, it has manifest limitations, and there are occasions which would be better served by the formal bill of exceptions long employed by the profession, but now apparently regarded, though quite erroneously, as not “ up to date.”
    Argued Dee. 15, 1896.
    Appeal, No. 65, April T., 1897, by-defendant, from judgment of Q. S., Allegheny Co., June Sess., 1896, No. 452, on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ;
    Reversed.
    Rice, P. J., Willard and Wickham, JJ., file dissenting opinions.
    Indictment for embezzlement of $26,652.74. Before Porter and Kennedy, JJ.
    The defendant, an assistant of the city attorney of Pittsburg, having been indicted with his chief for embezzlement, it appeared in evidence that the conduct of the office of the city attorney had been the subject of marked comment in the daily press of that city, and especially in a paper called “ The Pitts-burg Leader,” of which Joseph T. Nevin was part owner.
    Nearly all the jurors on the panel admitted an opinion on the case on their voir dire. After the four peremptory challenges allowed defendant had been exhausted, Joseph T. Nevin, a juror, was called and examined. He admitted that he had an opinion on the case; that he was one of the owners of the “Pittsburg Leader,” one of the newspapers which had been persevering in its denunciation of defendant; that he had read and approved the editorials in his paper pronouncing defendant guilty of the charge from time to time. Nevin was then challenged for cause, by defendant’s counsel, but this challenge was overruled because he answered, “ to the best of bis knowledge and belief he could render a verdict in accordance with the evidence produced in court.”
    It appears further that Joseph T. Nevin was permitted to take his seat in the jury box.
    The verdict, as indorsed on the indictment, was as follows:
    “Defendant, Wm. H. House, guilty as indicted on sixth count.”
    Judgment as indorsed on indictment:
    “ July 29, 1896, Deft., W. H. House, sentenced to pay a fine of $1,000 to the Com., the costs of pros., and imprisonment in Western Pen’y for two (2) years and three (8) months.” (10)

      Errors assigned were, (1) in overruling the appellant’s challenge of a juror, Joseph T. Nevin, founded upon his testimony on his voir dire;
    (2) In overruling the appellant’s objection to his cross-examination with reference to receiving interest on deposits, as follows, to wit:
    “Q. Well, it would aggregate in that neighborhood ? You had deposited the greater portion of that money in those banks by the direction of Major Moreland? A. Yes, sir. Q. There was interest drawn on that deposit, was there not? Objected to. Q. I will ask the question in another way that I do not think can be objectionable. Mr. House, did you not yourself, quarterly, within the four years prior to the finding of this bill of indictment, regularly draw interest on those deposits which I have just mentioned ? ”
    Mr. Patterson: I object to this first as not cross-examination ; second, because the records of this court show indictments pending against this defendant and Mr. Moreland, based upon the very matters with reference to which the witness is now interrogated; third, it is not alleged that that money is invested; fourth, it is not within anything of which notice is given by the bill of particulars. Objection overruled. To which ruling of the court counsel for defendant request an exception. Exception allowed and bill sealed.
    (3) Refusing to instruct the witness upon his right to refuse to answer the question allowed under the second assignment of error, as follows, to wit:
    Counsel for defendant request .the court to caution the witness and to instruct him as to his privilege of declining to answer questions which might tend to criminate him.
    The Court: I believe we will have to rule that the witness must answer the question. To which ruling of the court counsel for defendant request an exception. Exception allowed and bill sealed.
    (4) In overruling the appellant’s objection to the following question asked him on cross-examination, to wit:

      “ Q. In the Tradesmen’s National Bank didn’t you draw interest down until January, 1895, on the deposit remaining there ? ”
    Mr. Patterson: I object to this as incompetent, irrelevant and not cross-examination.
    The Court: Did this witness testify that he had deposited this money in the Tradesmen’s Bank ?
    The witness: Not any of the money that we are charged with embezzling. That all went to the Freehold Bank. Objection overruled. To winch ruling of the court counsel for defendant request an exception. Exception allowed and bill sealed.
    (5-8) To the charge of the court which being overruled need not be set out; (9) in entering judgment upon the verdict of the jury finding the defendant guilty as charged in the sixth count of the indictment; (10) in passing sentence upon the appellant “ to pay fine of one thousand dollars and costs and imprisonment for two years and three months.”

      Chas. A. O'Brien and D. F. Patterson, with them Chas. W. Ashley, for appellant.
    As to the right of challenge hi criminal, cases, see Staup v. Com., 74 Pa. 461, O’Mara v. Commonwealth, 75 Pa. 424, and Ortwein v. Commonwealth, 76 Pa. 414; to the same effect, Allison v. Commonwealth, 99 Pa. 17. As to the standard of fixed opinion of the juror, see Com. v. Crossmire, 156 Pa. 304.

      William, Yost, with him John C. Haymaker, district attorney, and John S. Hobb, for appellee.
    The single count of the indictment which was submitted to the jury was drawn under sec. 65 of the act of 1860, known as the Criminal Code, P. & L. Dig. 1193, sec. 247. For a recent construction of that section by the Supreme Court, see Com. v. Mentzer, 162 Pa. 646; Com. v. Miller, 107 Pa. 276 ; Com. v. Rogers, 1 S. & R. 124; Fulmer v. Com., 97 Pa. 503. As to the challenge of the juror, cited: Com. v. Crossmire, 156 Pa. 304; Clark v. Com., 123 Pa. 555; Ortwein v. Com., 76 Pa. 426; Com. v. McMillan, 144 Pa. 610.
    The second, third and fourth assignments of error are not according to rule and should be disregarded: Com v. Werntz, 161 Pa. 595.

      January 18, 1897:
   Opinion by

Smith, J.,

The defendant has a constitutional right to trial by an impartial jury. The question whether he has had such trial is raised by the assignment of error to the ruling of the trial judge on the defendant’s challenge of the juror Joseph T. Nevin.

The cause of challenge, while not specifically set forth, as would be the better practice, appears from the tenor of the examination to hare been that the juror had, in effect, prejudged the case, or had contracted a bias such as to interfere' with an impartial judgment.

In all the reported cases in this state, in which an alleged prejudgment has been made the cause of challenge, the examination of the juror has shown nothing more than the formation of an opinion from newspaper or other reports, or from reading the testimony given on a previous hearing or trial. In such cases the rule is well settled that “if from the examination of the juror, it appears that he has the ability and disposition to render a verdict on the evidence alone, the law adjudges him to be competent, notwithstanding it would require evidence to change his impressions or opinions formed from what he had heard or read about the affair under investigation: ” Com. v. Crossmire, 156 Pa. 804. An exception is made of an opinion formed from hearing or reading the evidence on both sides on a former trial; “ such knowledge excludes the idea of impartiality : ” Allison v. Com., 99 Pa. 17; Staup v. Com., 74 Pa. 458; Ortwein v. Com., 76 Pa. 414. But evidence taken before the coroner is not held to create an undue bias: Ibid.

The juror, however, is not to be the final judge of his own frame of mind. It must appear judicially from the attending conditions that the juror “stands indifferent” between the commonwealth and the prisoner, and can reach a conclusion uninfluenced by a preconceived opinion. In Staup v. Com., 74 Pa. 458, the juror, after saying that he had read the evidence on a previous trial, and upon that had formed an opinion as to the guilt or innocence of the prisoner, which he still entertained, and which it would take some evidence to remove, added: “ This opinion would not bias or influence my judgment if I were sworn as a juror. If sworn as a juror I could and would make up my verdict exclusively upon the evidence given here, uninfluenced and unbiased by my present opinion.” Notwithstanding the jnror’s own conviction of his impartiality the Supreme Court held him incompetent.

A challenge may be based on previous conduct by a juror, indicating a bias, as well as on a previously formed opinion. In Com. v. Mosier, 135 Pa. 221, a juror challenged by the commonwealth had conversed with the defendant and had exchanged cigars and drinks with him. The Supreme Court said: “We think this was sufficient. The commonwealth was not bound to accept a juror who had been on such easy terms with the defendant.” E converso, a defendant would not be bound to accept a juror whose conduct had indicated in equal measure a bias against him. In Com. v. Cleary, 148 Pa. 26, after reversal of a conviction of murder in the first degree, a petition by residents of the county was presented to the court, setting forth that the petitioners were “ of the opinion that the requirements of justice will be fully satisfied” by a plea of guilty of murder in the second degree, which the prisoner was willing to enter, and praying the court to receive such plea. A juror who had signed this petition, though not challenged, was held incompetent by the trial judge; and this was sustained by the Supreme Court, Mr. Chief Justice Paxson saying: “It (the petition) was a deliberate expression of opinion on the part of the petitioners as to the merits of the case, reduced to writing and signed by this juror. We do not think the juror, under the circumstances, should have been allowed to say that he could try the case impartially. Every man who signed that paper disqualified himself from serving as a juror on that case, and the learned judge below was entirely right in dismissing the juror in the summary manner he did.” In Com. v. Toth et al., 145 Pa. 308, two jurors, who had served on a jury which had convicted twenty-four persons of riot, were in the following week allowed to serve on the trial of three of these persons for a murder committed during the riot. But it must be borne in mind that participation in a riot by no means implies complicity or even suspicion of complicity in a murder or other crime committed during the riot. Mere presence, giving countenance and acquiescence, is sufficient to convict of riot, and whether the defendants in this case had been proved guilty of more, when tried for riot, does not appear. Nór did the jurors who had served on the trial for riot appear to have had any knowledge, even from hearsay, of the facts or the evidence in relation to the charge of murder. They testified that they had formed no opinion on the subject, and nothing was shown on which an allegation of prejudgment, or even of bias, could well be founded.

In the present case the juror testified that he had formed and expressed an opinion with reference to the guilt or innocence of the defendant, but not of a character to prevent him from fairly trying the case, and that if sworn as a juror he could render a verdict in accordance with the evidence produced in court. Prima facie, therefore, he was competent as a juror. But this preconceived opinion was not the only ground of challenge. It further appeared from his testimony that he was one of the proprietors of the Pittsburg Leader; that many editorials had been published in the Leader, from time to time, pronouncing the defendant guilty of the charge; that the juror had read these editorials, and had “ approved of the sentiments expressed in them with regard to this case.”

It does not appear from what source the juror’s opinion was derived. But the opinion seems to have been so deliberately formed and so firmly entertained that the journal of which he was.part proprietor, with his knowledge and approval, and as a feature of the business from which he derived a profit, set about the work of creating and stimulating public opinion against the defendant, and of propagating a belief of Ids guilt, and editorially, from time to tune, pronounced him guilty of the charge; a proceeding which, unless justified by the facts, would subject him to serious penalties both on indictment and private action for libel. Then, called to sit as a juror on trial of the charge, he thinks that he would be uninfluenced by the opinion which he held while engaged in the conviction of the defendant in this “ trial bj -newspaper.” As evidence of prejudgment, the deliberate and repeated publication of opinions, with the juror’s approval, in a newspaper in part owned by him, is not less conclusive than the deliberate expression of opinion, reduced to writing and signed by the juror, which in Com. v. Cleary was held to disqualify.

The course pursued by the juror in this case unmistakably indicates p bias against the prisoner too strong to permit a fair and impartial judgment; an opinion which, as tersely expressed by Mr. Justice Agnew in Staup v. Com. (supra), “ in an undue measure shuts out a different belief.” He cannot be permitted to purge himself of this bias by declaring that if sworn as a juror he would not be influenced by it. As said by Mr. Justice Paxson in Allison v. Com., supra, “Where it clearly appears that a juror has -formed a fixed opinion of the prisoner’s guilt, he should not be permitted to say that he can act impartially. He may honestly think so, but the prisoner should not be subjected to such a risk. Jurors fire but men and may be affected by a previously formed fixed opinion without intending or even knowing it. Besides, few jurors are willing to acknowledge publicly that they cannot act impartially. The law wisely delivers the accused from such a peril.” That the opinion of the juror in the present case had been formed a few months prior to the trial, does not meet the objection to it. On the contrary, that it was sufficiently deep-seated to have been held during so long a period indicates its strong and lasting character. It was not pretended that his journal’s attitude had been changed or that he had ceased to approve of its views respecting the defendant’s guilt, or that he had in any wise changed or modified his convictions on that question; the utmost claimed was that he could act uninfluenced by the opinion he had formed. Stronger reasons for pronouncing a juror disqualified, by prejudgment have seldom been presented than are shown in the present case. It is proper to say that the juror was not a volunteer for service on the panel, and while he might have honestly thought himself, impartial we may readily believe that he would have preferred not to sit on the trial. Having been regularly drawn and summoned, he was bound to appear; and having stated .everything as to which he was questioned, and held competent, he had no option but to obey the ruling of the-court and serve. But for the reasons given the challenge should have been sustained!

The second, third and fourth assignments disregard the rules of this court'and the well established principles on which they are based. These principles are thus concisely stated by Mr. Justice Mitchell in Com. v. Werntz, 161 Pa. 591: “The assignments are the pleadings in this court, and are the only part of the case that remains of record here after the remittitur to the court below. They should therefore be self-explanatory and self-sustaining, giving in each assignment separately the offer with so much of the preceding or accompanying evidence as is necessary to the proper understanding of the offer, the ruling of the court upon it, and if testimony objected to be admitted so much of it as may suffice to show why it was injurious to the party excepting. The neglect of these requirements is not cured by putting the necessary matter in the bill •of exceptions or elsewhere in the record or the paper-book. It belongs here whether it ifjppear again elsewhere or not.” These assignments do not contain the references to the preceding testimony necessary to make them self-explanatory, and to show fully on what they are based. While the practice of presenting an excerpt from the stenographer’s notes, in an assignment of error, has obvious advantages, it has also manifest limitations, of. which the present assignments form an instructive example. The purpose here would be better served by the formal bill of exceptions long employed by the profession, but now apparently regarded, though quite erroneously, as not “up to date.” Yet, as the case goes back for a new trial, we have at considerable trouble examined the evidence in relation to them, and are of opinion that they are not well founded. The questions embraced in the assignments appear to be within the legitimate scope of the cross-examination of a party, as indicated by the character of the issue.

The assignments relating to passages of the charge are without merit. The charge was a lucid and concise presentation of the issue, as it stood, and stated with precision the ingre.dients of the offense with which the defendant was charged in the only count of the indictment on which a conviction was finally sought. Its language throughout was conspicuously fair toward the. defendant, and all the points on which his counsel asked the court to instruct the jury were affirmed. Surely nothing more than this could be required.

The designation of the count on which the defendant was convicted as the 6th, from the marginal figure opposite its com.mencement, was not material. This was the count on which the commonwealth asked a verdict, the count to which the defendant made defense, the count on which the court instructed the jury and on which the issue was submitted. It was sufficiently identified by the marginal number,, and its designation by this number in the verdict, even if technically a misdescription, did the defendant no harm. Moreover a repetition of this merely formal error can readily be avoided on another trial.

As to the ninth and tenth assignments, it follows from what ,we have already said that the judgment was authorized by the verdict. It is also within the statutory limit. We hardly need add, what is apparently overlooked in these assignments, that the “judgment” and “sentence” are one and the same.

All the assignments except the first are overruled. The first assignment is sustained, the judgment is reversed, and a venire facias de novo is awarded.

Rice, P. J.,

dissenting.

The first assignment of error raises a question as to the qualification of one of the jurors.

In Allison v. Com’th, 99 Pa. 17. one of the rules deducible from the authorities was stated as follows : “ Where the juror entertains a fixed and deliberate opinion, no matter how formed, of the prisoner’s guilt he is incompetent; and his belief that he can try the prisoner impartially will not remove the disqualification.” Does the examination of the juror Nevin show that he had a fixed or deliberate opinion within the meaning of this rule ? If this question be considered with reference solely to his answers as to the nature, character and strength of his opinion, it is free from difficulty. Thus viewed, it is the ordinary case of a juror admitting that he has formed and expressed an opinion as to the defendant’s guilt, without stating how, or upon what evidence, he was led to form it, or that it is a fixed opinion, but asserting that he can and will try the case and render a verdict in accordance with the evidence adduced on the trial, uninfluenced by any former opinion that he may have had. In none of the numerous cases decided by the Supreme Court since Staup v. Com., 74 Pa. 458, has it been held to be error to overrule the challenge under the circumstances just stated. The law no longer presumes that a man, who has formed an opinion from what he has heard or read concerning a case, and has delivered it to others, cannot be perfectly impartial. In Staup v. Com., the more liberal doctrine was announced, that the opinion, which should exclude a juror, must be of a fixed and determined character, deliberately formed and still entertained, which in an undue measure shuts out a different belief. This doctrine has been recognized in all of the later cases: O’Mara v. Com., 75 Pa. 424; Ortwein v. Com., 76 Pa. 414; Curley v. Com., 84 Pa. 151; Allison v. Com., 99 Pa. 17; Weston v. Com., 111 Pa. 251; Clark v. Com., 123 Pa. 555 ; Rizzolo v. Com., 126 Pa. 54; Com. v. Taylor, 129 Pa. 534; Com. v. McMillan, 144 Pa. 610; Com. v. Toth, 145 Pa. 308; Com. v. Crossmire, 156 Pa. 304. It has frequently been remarked that to return now to the old rule would exclude from the jury box in many instances every man of average intelligence. In the last case Mr. Justice McCollum says: “ Hence if from the examination of the juror it appears that he has the ability and the disposition to render a verdict on the evidence alone, the law adjudges him to be competent, notwithstanding it would require evidence to change the impressions or opinions formed from what he has heard or read about the affair under investigation.” To this general rule there is one recognized exception, and that is where the juror has formed an opinion from hearing or reading the evidence upon a former trial. In srich case he is held to be incompetent, even if the opinion thus formed does not come up to the standard of a fixed opinion: Staup v. Com., supra; Allison v. Com., supra. But this exception has not been extended beyond its strict letter.- It does not apply to an opinion formed from hearing or reading the evidence upon a preliminary examination before a coroner or committing magistrate : Allison v. Com., supra; Clark v. Com., supra; nor to the reading of fragmentary reports of the former trial of one jointly indicted with the defendant: Weston v. Com., supra; Taylor v. Com., supra. See also Com. v. Toth, supra.

But it is argued that the present case is exceptional, because of the juror’s interest as a part owner of a newspaper in which editorials had appeared concerning the defendant’s case. It is vehemently asserted in the printed brief, as it was in the oral argument, that the juror had so far prejudged the case that he could not be impartial; because he was face to face with the question not of the defendant’s guilt or innocence under the testimony, but of the defendant’s guilt or his own in persecuting and misrepresenting him; either the defendant must be found guilty, so far as the juror'was concerned, or the latter was responsible before the public for having persistently accused and defamed him. When such a case as the counsel suppose is presented, there is little doubt as to the'ruling which any fair minded judge will make. But unfortunately for the argument, the challenge was not supported by proof of these facts. They are not to be inferred in order to lay ground for convicting the trial court of error. The question is to be determined upon the evidence pertinent to it, submitted to the court below and brought up with the record, and that alone. To determine it otherwise would be to commit the sin which the counsel so severely and so justly denounce. The facts brought upon the record by the hill of exceptions are as follows: The defendant was arrested in June and was tried in July.- It appears from the examination of the juror, that he is ‘a part owner of the Pittsburgh Leader, a newspaper published in Allegheny County where the case was tried; that during the preceding winter editorials had appeared in that newspaper “pronouncing the defendant guilty; ” and that the juror read these editorials and approved the sentiments therein expressed. The juror was not one of the editorial writers, and did not write the editorials in question. Nor, so far as appears, did he inspire them. The nature and extent of his interest in the newspaper property, and of his duties in connection with its management, do nob appear. He was of course legally responsible for its editorial utterances, although he may not have directed and controlled them. So also is any person responsible for his utterances concerning the guilt of one accused of a crime, but this of itself does not make him incompetent to sit as a juror in the case. It is to be observed further, that it does not appear in what tone the editorial opinion of the defendant’s guilt was expressed, nor upon what evidence, information or investigation it was based; and it is to be remembered that the opinion was expressed concerning a matter proper for public investigation and information. . Finally, the juror expressed a belief that he could try the case upon the evidence uninfluenced by his former opinion. Comparing his declarations in this regard with many of those expressed by jurors in the cases cited, it will be found, that they are fully.up to the legal standard. So far as we can judge from the printed report of his examination taken as a whole, he was candid in his answers, and positive in his belief that he could try the case impartially.,

If everything be eliminated from the case except what is shown by the bill of exceptions, a ruling that the juror was disqualified would, in effect, be equivalent to declaring that a part owner of a newspaper, no matter what his connection with its management, is incompetent to sit as a juror in a criminal case, if he has formed or expressed an opinion as to the defendant’s guilt, and the same opinion has been editorially expressed, although not by him, in the newspaper. There is no unbending rule of law, which declares, that such a person must be conclusively presumed not to have the ability and the disposition to try the case, and to render a verdict, on the evidence, and that alone. The question in his case as in all others is, whether he has a fixed or deliberate opinion. It is to be determined as a matter of fact from his whole examination and from all the circumstances. His interest in the newspaper in which the editorials appeared is a fact to be taken into consideration along with all the other circumstances, but it is not of itself conclusive. Again, the finding of the trial judge as to the juror’s ability and disposition to hear and decide the case impartially upon the evidence is not absolutely binding on us, but it is entitled to great weight. The inquiry turns upon the character of the opinion. Is it a prejudgment of the case ? Has it such fixedness and strength as will probably influence and control the juror’s verdict or his consideration of the evidence ? These are questions addressed primarily to the conscience and discriminating judgment of the trial judge. “Much weight therefore is to be given to the judgment of the court below, in whose presence the juror appears and by whom his manner and conduct as well as his language are scrutinized: ” Ortwein v. Com., 76 Pa. 414. “The disposition of a challenge depends on the finding of a fact, and in passing upon such finding here we must consider the evidence as a whole, and remember that the examination was in the presence and under the jurisdiction of the court below, and that it had better opportunity to discover the nature and character of the opinion held by the juror than is afforded this court on review: ” Clark v. Com., 123 Pa. 555. The same idea was expressed in Com. v. Crossmire, 156 Pa. 304, where the court said: “ It is proper to add that in reviewing the decision of the court below upon a challenge for such cause as is alleged in this case,, nothing short of palpable error in it will justify a reversal of it.”

It would serve no good purpose to encumber this opinion with further citations or more extended quotations. Viewing the examination of this juror in the light of the general principles enunciated in the cases above cited, and comparing his answers with those given by jurors held therein to be competent, and remembering further that the court below had opportunities which we have not, to judge of his candor and of the nature, character and strength of Ms opinion, I am not convinced that the court committed error in overruling the challenge. For these reasons I must dissent from the opinion of the majority in sustaining' the first assignment.

In my opinion the defendant had a fair trial according to the forms of law. No error was committed either in the trial or the sentence of which the defendant can justly complain; therefore I would affirm the judgment.

Wickham, J.,

dissenting:

Believing as I do that the opinion of the majority of our court in this case tends to establish a rule inconsistent with that deducible from the decisions of our Supreme Court, and not defensible on principle, I fully concur in the dissent.

The answers on voir dire of Mr. Nevin, which were the only evidence in the court below, regarding his competency as a juror, are here subjoined.

“ Q. I believe you are one of the proprietors of the Pitts-burg Leader? A. Yes sir. .Q. Have you personally formed or expressed any opinion with reference to the guilt or innocence of the defendant, W. H. House? A. I have. Q. Is that a settled and fixed opinion in its character? A. I hardly understand. Q. Well, is it an opinion of such a character that it would prevent you from fairly trying the case, if you were sworn as a juror? A. No sir. Q. You think it would not? A. No sir. Q. Are you one of the editorial writers of the Leader? A. No sir. Q. Have you been reading the editorials in the Leader this winter? A. Yes. Q. Have you approved of the sentiments expressed in those editorials with regard to this case? A. Yes sir, I-have. Q. Well, many of these editorials pronounced the defendant guilty, I believe, of the charge, from time to time? A. Yes sir.”

By the court: “Q. If sworn as a juror, could you try the ease and. render a verdict in accordance with the evidence produced here in court, uninfluenced by any opinion that you may have had in the past? A. I would. Q. You could do that, could you? A. I .think I could. Q. Could you do that? Could you try the case and render a verdict in accordance with the evidence produced here in court, to the best of your knowledge and belief? A. Yes sir.”

Not one of the editorials, referred to in the examination of the juror, were shown to him, or to the court. It appears from a question asked that they were written in the winter, five or six months before the trial, which began on July 13, 1896. The circumstances under which they were composed and published, who inspired them, and “the sentiments expressed,” beyond the fact that they declared the defendant guilty, are matters about which we. know nothing, the record being silent thereon.

I am unable to assent to the proposition that the owner of an interest in a newspaper which, many months before a case is called for trial, happens to contain editorials expressing belief in the defendant’s guilt is necessarily disqualified from sitting as a juror at the trial, although he may have approved the articles when they appeared. It is not his past but his present state of mind that determines his competency. What he has thought, said or assented to in the past may be inquired into for the purpose of discovering the condition of his mind when he is called, but no court is bound to hold, in the face of satisfactory evidence that he is then unbiased, that he is incompetent as a juror, save in the exceptional case referred to in the opinion of our Brother Rice.

The trial judge in the court below in the present case not only heard the juror’s answers, but had as well the opportunity which we have not, to scrutinize his manner, appearance and conduct. The things last mentioned were, of course, duly considered, as they always should be (Ortwein v. Commonwealth, 76 Pa. 426), and no doubt had their influence. We have no right, therefore, to say that the juror should have been rejected, unless we adopt the broad rule of exclusion above indicated, the only one that can be invoked to sustain the majority opinion.

If this is to be the rule, anyone called, hereafter, as a juror •will be absolutely disqualified by affirmative answers to the following questions, viz: 1st. Have you any proprietary interest, large or small, in any newspaper published in this community ? 2d. Have you at any time heretofore seen and read editorial articles, in that newspaper, expressing belief in the defendant’s guilt? 3d. Have you approved of the sentiments expressed in these editorials regarding the case ? To question further will be needless and useless because, no matter how well satisfied the court might be, from the juror’s other answers of his honesty, intelligence and willingness and ability to try the case with an unbiased mind, he still must be rejected.

The argument that because the juror might perhaps be liable civilly and criminally for what had been published in the newspaper, he therefore would necessarily be interested and prejudiced, applies with equal legal force to one who through letters to friends declares his belief in the guilt of another who is charged with a crime. Even an oral expression of like character may subject the utterer to a civil action. It will scarcely be contended, however, that such possible consequences, in the instances suggested would justify a juror’s exclusion.

Looking at the record before us, which is all we. can properly consider, I-am convinced that the case was well and iairly. tried, in every particular, and that the judgment should be affirmed.

Willard, J.,

dissenting:

I am compelled to dissent from the judgment of the court in this case. The challenge of the juror, Joseph Nevin, was properly overruled by the learned trial judge, and I am not inclined to depart from the rule adopted by the Supreme Court in Commonwealth v. Crossmire, 156 Pa. 304, and cases there cited. The judgment of the court below as to the qualifier tions of this juror in whose presence he appeared and by whom his manner and conduct as well as his language were scrutinized,is entitled to great weight, and should not be questioned here under the facts of this case as fully set forth in the dissenting opinion of the president judge of this court, and of Judge Wickham, in which opinions I concur.


author: Orlady, J.,

text:
    Mary B. Christian, by Wm. C. Scott, executor of the last will and testament of said Mary B. Christian, v. Commercial Ice Company, Appellant.

      Negligence — Streets—Reciprocal duties of pedestrians and vehicles.

    Pedestrians and drivers of vehicles are charged with reciprocal duties of vigilant care toward each other in the use of the city street and especially at the crossings.
    The degree of care demanded to exonerate from negligence in regard to a collision in a city street is that care which would be expected under the circumstances from a prudent and sensible person.
    Negligence— Question fo r jury.

    Where the evidence is conflicting as to the negligence of one or both parties to a collision in a city street the case is for the jury under proper instructions from the court.
    Argued Dec. 16, 1896.
    Appeal, No. 71, Nov. T., 1896, by defendant from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1893, No. 698, on verdict for plaintiff.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for personal injuries to plaintiff. Before Brégy, J.
    There was evidence tending to show that on the day of the accident plaintiff was standing on the southwest corner of 13th and Walnut streets with a very large umbrella over her head, that before attempting to cross the street she looked up and down the same. The 13th street car at that moment coming north over the south foot-crossing waited for the passage of a 19th street car on Walnut, there being four or five wagons, some of them covered, immediately in the rear of the 13th street car. The driver of one of the wagons of the defendant company saw plaintiff standing on pavement at corner and noticed as he jumped into his wagon one hundred and twenty feet south of Walnut, on the cartway east of the railway track, that the 13th street car was a car and a half length north of him, and that the procession of wagons between him and the west pavement followed it until it stopped as described. This driver saw plaintiff step unto the foot-crossing and supposed that she availed herself of the opportunity to get into the ear, until upon his arrival within ten feet of the foot-crossing on the south side of Walnut street when he saw the umbrella coming in front of the first wagon that followed the car, the cover of that wagon intervening between him and the plaintiff until she got upon the foot-crossing between the tracks. He then did all that was possible to bring his horses to a full stop and succeeded in doing so after they had gotten their heads past the foot-crossing which was four feet wide at that place. He swore that when he called to plaintiff to look out she started quickly to cross in front of his horses and struck the near horse on the ear or head with her umbrella, which caused him to shy and strike her either with the collar or the pole, so that she Avas thrown over towards the rail upon the street.
    The plaintiff’s evidence tended to show that Miss Christian, the plaintiff, looked up and doAvn the street to see if it was clear of obstructions, and after the passenger car had passed the foot-way she then crossed and had then proceeded over the footway and over the raihvay track and was about to go on her Avay to the east side when the horses of the ice Avagon were carelessly driven against her and she was knocked down and her arm broken and her body bruised. .Plaintiff could not see the ice Avagon until she had got on the car track. The ice wagon was proceeding at a jog trot and does not appear to have been equipped with a very efficient brake. The plaintiff having an umbrella over her head it does not appear that she looked up and down the street after passing the line of wagons on the track, but if she did, she decided to go on in face of the wagon ten feet distant and moving at a trot.
    The defendant submitted, inter alia, two points, — one, that there is no evidence of defendant’s negligence; second, that under all the evidence in the case the verdict must be for the defendant, which were refused by the trial judge, he leaving the questions of negligence and contributory negligence to the jury in a charge which is sufficiently quoted in the opinion of the Superior Court.
    Verdict for plaintiff for $728. Defendant appealed.

      Errors assigned were, (1, 2) refusal of defendant’s points.

      Howard W. Page, with him S. Davis Page, for appellant.
    The defendant’s points should have been affirmed: Baker v. Fehr, 97 Pa. 71; Harris v. Ice Co., 153 Pa. 278.
    The testimony of the driver, McFadden, was clearly to the point that she did not look at all, but on the contrary, so soon as he called to her to look out, she pulled the umbrella down over her face and started quickly in front of Ms horses. It was obligatory upon Miss Christian to look and listen before stepping from the car track mto the cartway, and as she was struck by the defendant’s team the moment that she stepped from the place of safety, the presumption must necessarily be that she did not look, even had she or anyone else sworn that she had : Harris v. Ice Co., 153 Pa. 278; Carson v. Federal Street Ry. Co., 147 Pa. 219, 224; Buzby v. Phila. Traction Co., 126 Pa. 559; Marland v. Pa. R. R. Co., 123 Pa. 487; R. R. Co. v. Bell, 122 Pa. 58; Moore v. R. R. Co., 108 Pa. 349; Holden v. R. R. Co., 169 Pa. 1.
    The question of the proper place to stop, look and listen, and the action of the party in regard to it, are usually for the jury, but there are exceptions where the inference from admitted facts is clear, and it becomes the duty of the court to declare the law as a result: Hughes v. Canal Co., 176 Pa. 254.

      H. Hunn Hanson, for appellee.
    No case has decided that the rule to stop, look and listen is to be applied to the duty of one crossing a city passenger track in a street, and wMle it is doubtless the duty of one walking the streets of a city to exercise unremitting care and attention that danger be not encountered, there has been judicially determined in this connection no unbending standard: Harris v. Ice Co., 153 Pa. 278.
    The question of negligence of the defendant and of contributory negligence of the plaintiff was properly one for the jury, and was submitted to them in a fair and impartial charge, with proper instructions under rules governing the case.
    January 18, 1897 :
   Opinion by

Orlady, J.,

Mary B. Christian, aged over eighty years, was injured by a team of the defendant company, at the intersection of Thirteenth and Walnut streets in Philadelphia. The old lady was going east along the south side of Walnut street, and when at the west curb of Thirteenth street, stopped to allow a street car to pass north; immediately behind the car, on the tracks, a number of wagons were going in the same direction. Between the line of wagons and the eastern curb of Thirteenth street, in what is called a cart or wagon way, was the defendant’s wagon, going-north.

When the street car stopped, Miss Christian stepped from the curb to cross Thirteenth street; passed on the crossing between the rear of the car and the wagon following it, and when in the ■act of passing from the car rails to the eastern side of Thirteenth street, was struck by the pole of the wagon and sustained injuries, which have been measured in a verdict of $728.

Miss Christian died from other causes prior to the trial, and plaintiff’s proof was adduced through a disinterested eye witness, who detailed the facts producing the injury, and after the accident expostulated with the driver for driving at such a rate of speed in a crowded part of the city as he had morning after morning been doing, and received in reply the driver’s idea of right and duty, “ that people had no business to go across when wagons were going across, that he had a perfect right to drive as he wished, and did not care for anybody at all.”

The driver was called by the defendant and testified that at the time of the accident, three covered wagons and a couple without covers followed the car; that he saw Miss Christian step down from the curb stone, but thought she intended to get on the car; that he was driving at a jog trot and didn’t stop, and “ saw her umbrella coming between the car and the covered wagon and halloed ‘look out there.’ I was about ten feet away .from the crossing, and the brake wasn’t such an extra good brake at the time, and I first put it down as far as I could. I stopped the team and knocked her down.”

Defendant submitted as points, “There is no eAddence of defendant’s negligence in this case, as ought reasonably to satisfy you thereof, and therefore I instruct you upon the whole case, your verdict should be for the defendant.” And “ Under all the evidence in the case the verdict must be for the defendant,” which were refused by the learned trial judge, and in the general charge the jury were told, “ By negligence is meant the failure to perform the duty which the occasion requires. Let me say to you, that there is a joint duty upon the driver of the wagon and the pedestrian upon the street; that as the one attempts to cross a highway, and the other drives near the flagstone, which is the usual and ordinary place for people to cross, it is the duty of both of them to remember that cars and wagons may be going up or down the street — the driver to remember that pedestrians maybe there crossing the street. I do not say to you as a matter of law that if she saw a wagon or car coming, she could not cross, because in these days, in many parts of the city if that rule were to be enforced, a person could never cross; but you are to say whether if she had looked, she would have seen a condition of affairs to justify a prudent person in crossing or attempting to cross that street. If such was the condition, then she was not negligent in attempting to cross.” “ Further, if a pedestrian attempts to cross a street and gets part way across, and is stopped by a block of cars or wagons, and that block is removed, and there is again an opportunity to cross, they must again observe whether the condition has changed, or whether it is safe that they should go on. And by safe, I do not mean absolutely safe from all injury, but I mean whether it is safe in the ordinary sen'se of that word, — ■ whether a prudent and sensible person would be justified in attempting to cross a highway at a public crossing. It was the duty of the driver to approach the street crossing, recognizing the fact that people might attempt to cross at that street, and therefore it was his duty to have his team in such a condition, that if the occasion required he would be able to stop it. If you find that this accident happened as a result of both people being negligent, that is neither nor both sides did not do what they ought to have done, as I have defined it to you, then there can be no recovery. The law is that if there was joint negligence on the part of the plaintiff and defendant, there can be no recovery. There can be no verdict for the plaintiff except you find as a fact from the evidence, that the accident or the injury was caused by the negligence of the defendant alone.” The foregoing is quoted as a correct declaration of the law. When Miss Christian stopped and looked- at the western curb of 13th street, she saw in front of her the crossing she intended to use, free for pedestrians, with a covered wagon halted south of it, and behind that wagon a number of others in the car tracks. She acted on the invitation of the driver of the covered wagon to occupy the crossing, and did so in a careful, prudent manner. She could not see the ice wagon until she had passed over the car track. At this point it would be more dangerous for her to return than advance, as the ice wagon was ten feet distant. Her effort was natural and the right thing to do. It was an emergency and she acted with prudence. The driver of the ice wagon saw the car stop, and assumed that she got on the car. There was more reason for him to think she would pass on across 13th street, as the driver on the covered wagon on the car track had not started to occupy the crossing. Instead of approaching the crossing with care until he could see whether this old lady was on the street or not, he recklessly kept his unwieldy team at a jog trot with knowledge of the defective brake, and was the sole cause of the injury; acting out the thought expressed to the person protesting against his conduct at the time, — “ he had a perfect right to drive as he wished, and did not care for anybody at all.”

The case was carefully tried, the facts properly submitted, and the law correctly stated to the jury.

The judgment is affirmed.


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    F. L. Whitaker v. Alexander Lumber Co., Appellant.

      Contract — Quality of goods sold — Question for jury.

    Where the issue was whether goods delivered were of the quality ordered, the question is necessarily one for the jury, the testimony being conflicting.

      Contract — Substantial performance — Charge of the court.

    The question turning on the performance of a contract the jury were properly instructed by the trial judge as follows: “ If it was substantially performed, if it was performed so that the proportionate extent of failure was comparatively small, and did not constitute the bulk of the entire quantity, then the plaintiff would be entitled to recover for whatever he did deliver that was in accordance with the contract, and the defendant would be entitled to have credit for whatever portion was deficient.”
    Argued Dec. 18, 1896.
    Appeal, No. 45, Nov. T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1894, No. 788, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ,
    Affirmed.
    Assumpsit for lumber sold defendant. Before Willson, J.
    The facts sufficiently appear in the opinion of the Superior Court.
    The court left the question of performance or substantial performance to the jury.
    Verdict for plaintiff, $594.41. Defendant appealed.

      Errors assigned were, (1) in charging as follows: “If it was' substantially performed, if it was performed so that the proportionate extent of failure was comparatively small, and did not constitute the bulk of the entire quantity, then the plaintiff would be entitled to recover for whatever he did deliver that was in accordance with the contract, and the defendant would-be entitled to have credit for whatever portion was deficient.” (2) In charging as follows : “ At the same time, you will remember that he (Arnold) stated that they (the Casket Company) were ready to give credit to the defendant for a certain quantity. As I understand the testimony, he said that they were ready to give credit for 45,000 and some odd feet of the 60,000 or thereabouts, covered by the contract.”

      Francis Rawle, for appellant.
    “ In a purchase for a particular use made known to the seller, if the buyer relies on the vendor’s judgment to select and. not his own, there is an implied warranty that the article is reasonably fit and suitable for that purpose: ” Benjamin on Sales, 6th ed. p. 646.
    On the purchase of “good sound lumber” the defendant may refuse to receive any of a lower grade: Holt v. Pie, 120 Pa. 425.
    Where the plaintiff ordered iron from the defendant for a specified purpose known to defendant, it was held that it must be of the kind ordered: P. & R. C. & I. Co. v. Hoffman, 4 Atl. Rep. 848.
    “ If a man sells an article he thereby warrants that it is merchantable, that it is fit for some purpose; if he sells it for a particular purpose he thereby warrants it fit for that purpose: ” Jones v. Bright, 5 Bing. 533. This doctrine is mot limited to a manufacturer but applies to sellers: Jones v. Just, L. R. 3 Q. B. 197; French v. Vining, 102 Mass. 135; Downing v. Dearborne, 77 Me. 457; Gerst v. Jones, 32 Gratt. 518; Dushane v. Benedict, 120 U. S. 630. A sale of “No. 3 siding: ” Whitehall Co. v. Wise, 119 Pa. 484. “ Good sound hemlock: ” Holt v. Pie, 120 Pa. 440. “ Good salable corn: ” Halloway v. Jacoby, 120 Pa. 583. “ Thoroughly tanned leather: ” Groetzinger v. Kann, 165 Pa. 578. The present case is clearly distinguishable from Jarecki Co. v. Kerr, 165 Pa. 529.

      Wm. S. Staake, with him E. P. Mc Cormick, for appellee.
    January 18, 1897 :
   Opinion by

Orlady, J.,

Defendant, as a dealer in lumber, ordered from plaintiff four car loads of chestnut lumber, described in the letters directing the shipments as “sound wormy coffin culls,” “sound wormy chestnut culls,” “ sound dry wormy chestnut culls ” to be delivered at Allegheny, Pennsylvania, for the National Casket Company, to be used in making burial caskets and coffins.

Pursuant to the orders, about sixty thousand feet of lumber were delivered, and defense to the whole claim was made, for the reason as alleged by appellant, that all the lumber shipped was below the grade ordered, viz: mill culls, and of no value for the purpose for which it was intended to be used.

The plaintiff, and five witnesses in his behalf, testified to the quality of the lumber and their understanding of the trade designation “ sound wormy chestnut culls; ” that in the selection of the four car loads, every board was of that grade; that every board of the quality known as “ mill culls ” had been rejected by a careful inspection at the time of loading the cars; and that chestnut lumber in the trade was graded in. four classes: ones and twos were one grade; common, sound, wormy and cull.

The defendant called eight witnesses to prove that there were five recognized grades of chestnut lumber in the trade; ones and twos the first grade, common, sound wormy, culls, and mill culls; that after an examination of the lumber, it should be rated as “mill culls ” and was not of the standard mentioned in the orders.

The lumber was purchased by the defendant to be sold to the National Casket Company, and was delivered to them.

Testimony was adduced on each side to explain the extent of defects permissible in a sound board to entitle it to rank as a cull, or reject it as a mill cull; and the grade of excellence to give it the merit of a 'sound wormy cull, to pass inspection for the casket and coffin trade.

. A director of the casket company, called by the defendant, testified that “ he had seen the side of every board in the four car loads, and found 45,599 feet that could be used, better or worse.”

The court said to the jury, inter alia: “ If it was substantially performed, if it was performed so that the proportionate extent of failure was comparatively small, and did not constitute the bulk of the entire quantity, then the plaintiff would be entitled to recover for whatever he did deliver that was in accordance with the contract, and the defendant would be entitled to have credit for whatever portion was deficient.” “ These two questions arise: First, what was the obligation of the plaintiff under the contract, with reference to the particular and precise character of the lumber which he was bound to deliver ? And second, did he or did he not substantially comply with that contract ? It is just as you may settle the questions of fact upon those two points that your verdict ought to be formed. At the same time you will remember that he (Arnold) stated that they (the casket company) were ready to give credit to the defendant for a certain quantity. As I understand the testimony, he said that they were ready to give credit for 45,000 and some odd feet of the 60,000 or thereabouts covered by the contract.” 2d. Assignment.

After the testimony of Mr. Arnold for the defendant, it was but a short step for the jury, to adopt the inspection as made by plaintiff’s witnesses and determine by their verdict that the whole shipment was of sound wormy chestnut culls. It was purely a question of fact, and under this finding, the defendant suffered no injury from that part of the charge “ if it was performed so that the proportionate extent of failure was comparatively small, and did not constitute the bulk of the entire quantity, then the plaintiff would be entitled to recover for whatever he did deliver that was in accordance with the contract.” .

Even if error, it was harmless, as the defendant refused to receive any of the lumber. The assignments of error are not sustained and the judgment is affirmed.


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    William M. King v. International Publishing Company, Appellant.

      Contract — Executed contract — Condition precedent.

    An agreement to employ a book canvasser as state agent at a fixed salary upon sale of twenty-five copies of a certain work becomes binding upon the performance of the condition precedent. The obligation cannot be avoided by proof of evasive and different propositions made after the first contract became executed or operative.
    Argued Dec. 17, 1896.
    Appeal, No. 167, Nov. T., 1896, by defendant, from judgment of C. P. No. 2, Pbila. Co., June T., 1896, No. 1123 for plaintiff for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts sufficiently appear in the opinion of the Superior Court.
    Judgment for plaintiff for §610.50 with interest. Defendant appealed.

      Mrrors assigned were, (1,2) entry of judgment in favor of plaintiff.

      Thomas R. Elcock, with him Louis Hutt, for appellant.

      J. Willis Martin, with him Wm. Y. C. Anderson, for appellee.
    January 18, 1897:
   Opinion by

Orlady, J.,

Prior to June 4, 1895, the parties to this suit had been in correspondence in regard to the plaintiff representing the defendant as an agent. From some cause the negotiations ceased. On the above date they were renewed by the defendant writing that it had consolidated with two other firms and had become, “the leading subscription book house in the entire world,” and suggesting the details of employment of state agents in very alluring terms. On June 18, 1895, the plaintiff answered, “ In reply to yours under date of June 14, 1895, will say I am at present getting $50.00 per month, and will not quit a sure thing for an uncertainty, so if you mean just what you have written and will give me a document that will guarantee me the position in question after I have sold and paid for 25 or more books entitled (The International Cyclopedia of Practical Knowledge) I will order outfit for preparatory work.”

On July 6, the defendant answered, inter alia, “ As you say, you desire something more than our word in this matter, we send herewith a document signed by one of the officers of our Company and stamped with our corporate seal, which insures you the position when you have disposed of 25 or 30 copies of our booh entitled, ‘ International Qyelopedia.’ ' We certainly mean business in this matter.” The document inclosed was in the following form: “ This is to certify that the International Publishing Company of Philadelphia, Pa. hereby agrees to employ W. M. King, Tallapoosa, Ga. in the capacity of State agent when he has sold and paid for 25 copies of International Cyclopedia. It is mutually agreed that when the said International Publishing Company employs the said W. M. King, in the capacity of State agent as above specified that they will enter into a yearly agreement with him for a salary of $780 payable weekly, with all incidental expenses hi connection with the business, such as cost of advertising, expressage on stock, stationery, postage, etc.

“ International Publishing Company.
“ By K. A. Bryne, Vice Pres.”

The plaintiff accepted the offer and resigned from the position he was then holding; sold and paid for the stipulated number of books; fulfilled all conditions prescribed by the defendant as necessary to qualify him to act as agent and held himself ready to represent the company for the term mentioned. A number of letters passed between the parties without changing the plaintiff’s rights, but the defendant refused to comply with the offer of July 6; repudiated its contract, and in the additional supplemental affidavit of defense, exhibit an entirely different proposition, in an ingenious, but manifestly unfair way.

The offer and acceptance constitute the terms of the contract. The plaintiff did all the defendant had a right to expect of him, and the letter of July 6, with the inclosure, made the defendant liable as soon as the condition imposed therein had been performed. The three affidavits filed were not sufficient.

The assignments of error are overruled and the judgment is affirmed.


author: Wickham, J.,

text:
    Joseph S. Harris, Edward M. Paxson and John Lowber Welsh, Receivers of the Philadelphia and Reading Coal & Iron Company, v. W. Durell Shuster, Appellant.

      Res judicata — Execution—Rule to set aside exemption — Alias writs of fi.fa.

    A rule to set aside a claim to exemption, made as to an interest in a limited partnership, was made absolute. The writ under which the levy was made was subsequently stayed, a new writ issued, the same claim made and allowed by the sheriff, and on a new rule set aside by the court, defendant appealed from the order of the court making absolute the second rule. Held, that the action of the court on the second rule must be affirmed, all conditions being present which made the matter res judicata. The second writ was a continuation of or supplement to the first writ. Query as to the conclusion, had the appeal been to the order on the first rule.
    Argued Oct. 16, 1896.
    Appeal, No. 136, Nov. T., 1896, by defendant, from judgment of G. P. No. 2, Phila. Co., March T., 1896, No. 973, making absolute rule disallowing exemption.
    Before Rice, P. J., Willard, Wickham, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit for coal sold and delivered.
    On May 9, 1896, the plaintiffs obtained judgment against the firm of Rhoads & Shuster. The levy was made under fierf facias on the interest of Shuster in another concern known as Warner, Shuster & Co., Ltd. Shuster claimed the benefit of the. exemption law. His claim was allowed by sheriff. The court subsequently made absolute the rule to show cause why the claim should not be disallowed and the appraisement thereof set aside.

      Other facts sufficiently appear in the opinion of the Superior Court.

      Error assigned was in making absolute the above rule.

      Wm. H. Shoemaker, for appellant.
    The judgment in this case was founded on a contract. The claim was made in time. The appraisement was regularly and properly made and no objection was made on any of these grounds. The exemption should have been allowed: Tasker v. Sheldon, 115 Pa. 107; Mitchell on Motions and Rules, 51.
    Intangible property is within the provisions of the exemption law: Vankirk v. Allen, 1 W. N. C. 231.
    In several of the states it has been held that the provision of the exemption law extends to property owned by a debtor as a member of a partnership firm against which the judgment was obtained and the execution issued: Stewart v. Brown, 37 N. Y. 350; In re Young, 3 Nat. Bank Reg. 440; In re Rupp, 4 Nat. Bank Reg. 95.
    The interest levied on in this case and the exemption claimed, is in a limited copartnership association or joint stock company, and is exempt not only under the act of 1849, but also under the act of 1859. The second fi. fa. was not even an alias, as it commanded the levy and sale of something not in the first fi. fa.: Missimer v. Ebersole, 87 Pa. 110. The first fi. fa. having been stayed by the plaintiffs, it became as if nothing had been done under it so far as the defendant’s rights were concerned: Missimer v. Ebersole, supra; Bowman v. Tagg, 6 W. N. C. 220.

      John G. Lamb, for appellees.
    The appellees claim that the exemption was properly disallowed upon two grounds. First, it cannot be claimed out of an undivided interest in a partnership : Act of April 9, 1849, P. L. 533; Act of April 8, 1859, P. L. 425. .
    The person owning property jointly with another cannot claim exemption out of the joint property levied upon: Bonsall v. Comly, 44 Pa. 442. See also Hawley v. Hampton, 160 Pa. 18.
    Irrespective of the question as to whether exemption can be allowed out of partnership interest, it was properly refused in this case because of the fraudulent conduct of Shuster: Emerson v. Smith, 51 Pa. 90; Imhoff’s Appeal, 119 Pa. 350.
    The question as to the power of the court to set aside the appraisement and claim for exemption is too well settled to require argument. The proceedings in this case strictly followed the practice as laid down in Williamson v. Krumbhaar, 132 Pa. 455.
    January 18, 1897:
   Opinion by

Wickham, J.,

The plaintiffs obtained judgment against Samuel H. Rhoads and W. Durell Shuster, partners as Rhoads and Shuster. On this judgment they caused to be issued a fieri facias returnable to the first Monday of June, 1896, whereon a levy was made on the interest of Shuster in another concern, known as Warner, Shuster & Co., Limited, a joint stock association or partnership organized under the act of June 2, 1874, P. L. 271, and its supplements.

It is asserted in the appellant’s paper-book that the word “ Limited ” was originally omitted from the precipe and ivrit and added afterwards, without leave of court. We cannot, however, inquire into this matter, but must take the record as we find it and as it has been certified to us. If the fact is as stated, the court below should have been asked to order the necessary correction, through a proceeding instituted for that purpose : Sheip et al. v. Price et al., ante, p. 1.

Shuster claimed the benefit of the exemption law. His claim was allowed by the sheriff, and his interest in the limited partnership appraised at $50.00. On May 28, 1896, the plaintiffs obtained a rule to show cause why his claim to the exemption should not be disallowed and the appraisement set aside. The grounds alleged were fraud, and also that, in law, he was not entitled to claim out of an undivided interest in a partnership.

After hearing, this rule was made absolute on June 13, 1896. On the 28th of the same month, the defendant obtained a rule, on the plaintiffs, to show cause why the execution should not be set aside. The plaintiffs, on the same day stayed their writ and issued an alias, on which another levy was at once made on the same interest in the limited partnership. The defendant again claimed the benefit of the exemption law, and again it was allowed, the defendant’s interest in the limited partnership being appraised as before, at $50.00. Thereupon the plaintiffs, reciting the former proceedings, took another rule, on the defendant, similar to the first. This appeal was taken from the decision of the court below making the latter rule absolute, and cannot be regarded as presenting anything else for review.

While we might not have been able to agree with the learned judge of the court below, were the case before us, on an appeal from his decision on the first rule obtained by the plaintiffs, we are constrained to say that his second decision, which is the only one appealed from, was the legitimate and necessary consequence of the first. The matter, when last before him, was res judicata. All the conditions necessary to make it so, namely, identity of subject-matter, of action, of parties and the quality of the parties, fully coexisted.

It may be urged that the first decision is final only so far as the first writ is concerned. It must be borne in mind, however, that an alias fieri facias is grounded on the original, Tidd’s Prac., 9th ed. 1020, and is, in substance, a continuation thereof, or a supplement thereto : McAfoose’s Appeal, 32 Pa. 276. In the case just cited, a claim for exemption, out of realty, made only on the original fieri facias was allowed, out of the proceeds of a sale made on an alias, because of the connection between the two writs; so, in the present case, the decision against the defendant’s right to exemption out of his interest in the limited partnership must be held applicable, until reversed, or the conditions are changed, to each successive execution, issued by the same plaintiffs or their privies on the same judgment and levied on the same property.

To allow the question of the defendant’s right to be tried anew, on its merits, on the issuance of each execution, would promote needless and vexatious litigation, and be contrary to the principles whereon the doctrine of res judicata rests.

The decree is affirmed and the appellant directed to pay the costs of the appeal.