author: Oblady, J.,

text:
    Commonwealth v. Meads, Appellant.

      Trade-marks — Constitutional law — Acts of May 21, 1895, P. L. 95, May 2, 1901, P. L. 114, and April 3, 1903, P. L. 134. Union labels.

    The Act of May 21, 1895, P. L. 95, as amended by the Acts of May 2, 1901, P. L. 114, and April 3, 1903, P. L. 134, and entitled “An Act to provide for the adoption of trade-marks, labels, symbols, or private stamps by an incorporated or unincorporated association or union of workingmen, and to regulate the same,” and providing that a violation of the act shall be a misdemeanor, is not defective in title and unconstitutional.

      Criminal law — Jurisdiction—Locus in quo — Trade-marks—Cigar labels.

    Where a person places counterfeit cigar labels on cigars, and ships them to a purchaser in another county under an arrangement by which the title to the cigars was not to pass until they reached the place of consignment, the seller of the cigars may be convicted, in the county where the purchaser resides, of violating the Act of May 21, 1895, P, L, 95.

      Practice, Q. S. — Trial—Charge—Unfair charge.

    It is not error for a judge in his charge to a jury tó express his opinion upon the facts, if done fairly, provided he does not give a binding direction, or interfere with the province of the jury; but in every case which justifies a judge in expressing an opinion the jury should be directly informed that it is his opinion, and that they are not to be bound by it; and the expression of opinion should always be made with the utmost fairness and absence of partisanship.
    If the charge gives undue prominence to the testimony of a witness for one of the parties and impeaches the testimony of two witnesses for the other party, the judgment will be reversed.
    Argued Oct. 24, 1904.
    Appeal, No. 18, March T., 1905, by defendant, from judgment of Q. S. Adams Co., April T., 1904, No. 6, on verdict of guilty in case of Commonwealth v. N. G. Meads.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Indictment for counterfeiting union cigar labels. Before Swope, P. J.
    The court charged in part as follows:
    [Now gentlemen, we have been lately hearing a great deal about labor unions, about strikes and the difficulty and agitation between labor and capital in different sections of the country.
    Let me say to you, gentlemen, that in the stirring times in which we are now living, with so much combination of efforts and organization of power, and with so much accomplished by combination and unity of action for the furtherance of ends, that it is not only the privilege, legal right, but in our opinion, bounden duty of labor to organize for its protection, and that if they fail to do so that their truest interest might soon be crushed under the pitiless juggernaut of conscienceless capital. It is entirely proper, legal and right for capital to combine and to organize for the proper ends, and it is equally right, legal and proper for labor to do the same thing. The labor of this country, as of all others, constitutes the great mass of our humanity. “ The laborer is worthy of his hire.” That has been a blessed injunction that has been given to us from the dawn of the new dispensation. For the cigar makers of this nation to form themselves into a union for the purpose, alleged by the formation of this union, to benefit their condition socially, financially, morally and intellectually is certainly a most commendable effort, and ought to result for all in great and general benefit and blessing. Labor, combined and acting in union, can protect her interests, but without combination, and union of efforts they will be helpless to do so. They would be like a great army unable to accomplish what it ought to accomplish, if it is without organization, discipline and leadership. The Cigar Makers’ International Union of America, after the passage of this act of assembly in 1895, originally adopted a trade-mark to identify their goods and fully comply with the law in all its provisions with reference to it. That was an honorable thing to do, gentlemen; that was the proper thing to do, guarding the manufacture of their products in the interests of hygiene by seeing that workmen were provided with proper places in which to work! seeking to control, in a measure, the price of labeling, as they claim, no doubt, the best skilled workmen, cigar makers, and they stamp their products with the union label, not enforcing any one to buy, not trying to compel them to buy, but a mere putting on of their union stamps inviting every one to buy because it has the union label.] [7]
    [Now gentlemen, this is a case, as I said to you in the beginning, that may well command your careful attention. If you believe the testimony of Mr. Meads ; he admits these cigars were packed by his packers ; he admits that he went to the express office and addressed them to Mr. Hershey at Gardner’s station in this county; that when they were packed they had not this counterfeit union label on;' that he did not put it on ; that he ordered no one else to put it on. If you believe the testimony of Jackson and Stine in corroboration of that fact, then he is not guilty. If under testimony the commonwealth fail to prove that he had this knowledge beyond a reasonable doubt, you would not be justified in finding him guilty, but, gentlemen, search for and find the real facts in this case; that is the bounden duty resting upon you. If these men are telling the truth, he is not guilty, but can you believe them; as reasonable men do you believe them ? You are not, it is true, to find out who put these stamps on, if you find the defendant did not. What are you to believe as reasonable men, beyond a reasonable doubt? How did these admittedly counterfeit union labels get upon those boxes, received, if you believe they were so received, with them on at Gardner’s station in December and November, 1903 ? If you believe they were on, who put them on ? Has the commonwealth, from all the testimony, established beyond a reasonable doubt that Meads did, or had it done ? If so he is guilty of their being there; if they have not he is not guilty.
    Do not be taken away because three men swear a certain thing. You are not to measure the testimony by the weight of numbers. If, from all the testimony, you believe the three men are falsifying, and simple circumstances only stand against it, and you must find in favor of what you believe to be, beyond a reasonable doubt, the truth. You are not mere measurers, measuring numbers.] [8]
    [The testimony on the part of the commonwealth — we will simply mention the names of the witnesses — was begun by calling H. H. Hershey. Mr. Hershey is one of the most reputable citizens, as you all know, a man who has been in business for some time in the borough of York Springs.
    Mr. Hershey admits that he aided these representatives of the cigarmakers’ union to discover what they claimed was a violation of the law, the protection of which was dear to them. There has been much said about Mr. Hershey’s connection with this. He admits, by reason of writing the letters, going to the station and bringing the goods from the station, he was paid about $20.00. Mr. Hershey, gentlemen, says he was not trying to have them commit a crime, but he was aiding these men to discover them in the commission of a crime, if they were committing a crime, and are you justified in saying improperly to discover a crime that was alleged to have been committed and that was done in covert? We submit not.
    Mr. Miller stands in the same relation as Mr. Hershey; he is a citizen of this county and constable for that district.
    I. B. Kuhn is called as witness on the part of the commonwealth. He is a representative and an employee of this cigar-makers’ union. Geo. P. Allen is also in the same way.
    Mr. Kuhn and Mr. Allen are not to be disbelieved simply because they have been acting in the capacity of detective work for this union. They are not to be discredited because the union, in the interests of labor, pays them a reasonable, or what you may think a very liberal, salary, for they would, in the choice of men for this work choose men of such character.
    They are not to have the odium of untruthfulness cast upon them unless the circumstances of this case justify you in believing them to be; they are to be believed although they are agents of this company and have been appointed to look up infractions of the law, unless under the circumstances surrounding their testimony here you have reasonable cause to disbelieve them.
    Geo. P. Allen was called, who testified — he was one of the agents of this union, and for that reason he was not to be disbelieved unless you find from his manner and environment, you are not entitled to give him credence.] [9]
    [If you find from the testimony in this case that Mr. Meads aided and abetted in the shipment of these cigars which contained counterfeit labels; aided and assisted in putting them into the. hands of the innocent agent of the Adams Express Company, consigned them to Mr. Hershey at Gardner’s station, subject to examination, we instruct you, as a matter of law, that there would be such using and such displaying of counterfeit label as would come within the prohibition of this act and within the jurisdiction of this court.
    If you determine that this label upon these cigars was a counterfeit union label, then you will determine whether Meads aided and assisted in sending them with these counterfeit union labels on, from Red Lion to Gardner’s station in Adams county.
    I do not propose to refer to any more testimony. We intend to leave it to you and your recollection of it and to your determination as to what the true facts in this case are. Was this a counterfeit? Were the goods shipped through the Adams Express Company with this counterfeit label on to Mr. Hershey at Gardner’s station, November 14 and December 14, with the direction or procurement of Mr. Meads ? If you believe that to be established beyond a reasonable doubt, you should find the defendant guilty in manner and form as he stands indicted,] [10]
    [Haines testifies that these letters, all of which you will read and remember, were written by him and they were written at the dictation and with the knowledge of Meads, not that Meads formulated their wording and dictated to him as he wrote it down on the typewriter, but that he acquainted him with all Mr. Hershey’s letters and he answered them as advised to do by Meads.
    Moses Stine and Wm. Henry Jackson were called as witnesses. Both have been working, one for three years and one possibly longer than that, and you may find they are both now in the employ of Meads; at least one of them is.] [11]
    [Now, gentlemen, in every criminal case the jury have nothing to do with the punishment; that is fixed by the law in the discretion of the court. Your duty alone is to determine the fact of innocence or guilt under the evidence and the law. The responsibility of the punishment is not with you and you will not allow it to unduly influence you in any way at all. It can be very heavily punished and it ought to be very heavily punished.] [12]
    .Verdict of guilty on which the prisoner was sentenced to imprisonment in jail for one year and eight months.

      Errors assigned among others were (1) in refusing to quash the bill; (2) in refusing to give binding instructions for defendants on the ground that the offense was not committed in Adams county; and (7-12) above instructions, quoting them.

      E. E. Beltzhoover, with him Wm. Mersh, for appellant.—
    The act of May 21, 1895, is unconstitutional: Quinn v. Cumberland Co., 162 Pa. 55 ; Com. v. Frantz, 135 Pa. 389 ; Payne v. School Dist., 168 Pa. 386 ; Boro. of Phœnixville Road, 109 Pa. 44; Com. v. Zacharias, 3 Pa. Superior Ct. 264; Com. v. Jones, 4 Pa. Superior Ct. 362; Baker v. Warren County, 11 Pa. Superior Ct. 170; Com. v. Beatty, 15 Pa. Superior Ct. 5; Com. v. Norton, 16 Pa. Superior Ct. 423 ; Com. v. Ayers, 17 Pa. Superior Ct. 352; Com. v. Mintz, 19 Pa. Superior Ct. 283; Moore v. Moore, 23 Pa. Superior Ct. 73; Com. v. Samuels, 163 Pa. 283.
    The Adams county court did not have jurisdiction: Com. v. Fleming, 130 Pa. 138; Com. v. Hess, 148 Pa. 98; Com. v. Schmunk, 207 Pa. 544; Rex v. Burdett, 4 Barn. & Ald. 95; Com. v. O’Neill, 10 Pa. Dist. Reprs. 227.

      The .charge of the court was erroneous, unfair and misleading: Cauffman v. Long, 82 Pa. 72; Phila. Trust, etc., Co. v. R. R. Co., 177 Pa. 38; Com. v. Winkelman, 12 Pa. Superior Ct. 497 ; Larzelere v. Tiel, 3 Pa. Superior Ct. 109 ; Heydrick v. Hutchinson, 165 Pa. 208; Linn v. Com., 96 Pa. 285; Coxe v.-Deringer, 82 Pa. 236.

      J. 3. Blade and W. 0. Sheely, with, them B. B. Wible, district attorney, J. L. Williams and Joseph P. MeQullen, for appellee.
    The act of 1895 is constitutional: Com. v. Muir, 1 Pa. Superior Co. 578 ; Com. v. Jones, 4 Pa. Superior Ct. 362; Com. v. Sellers, 130 Pa. 32; Powell v. Com. 114 Pa. 265.
    The offense charged was committed in Adams county, because the counterfeit label was used and displayed in Adams county and there alone: Com. v. Gillespie, 7 S. & R. 469; Dannemiller v. Kirkpatrick, 201 Pa. 218; Miller v. Seaman, 176 Pa. 291; Jones v. Jennings, 168 Pa. 493; Simpson v. Karr, 22 Pa. Superior Ct. 8 ; Wilson v. Belles, 22 Pa. Superior Ct. 477; Commonwealth v. Schmunk, 22 Pa. Superior Ct. 348; s. c. 207 Pa. 544; Commonwealth v. Leslie, 20 Pa. Superior Ct. 529.
    November 20,1905:
   Opinion by

Oblady, J.,

The defendant was indicted and convicted of'knowingly and unlawfully using and displaying a counterfeit, or imitation, of the label, trade-mark, symbol or private stamp of the Cigar Makers’ International Union of America, in violation of the provisions of the Act of May 21,-1895, P. L. 95, as amended by Act of May 2, 1901, P. L. 114, and Act of April 3, 1903, P. L. 134. The title to the original act is as follows : “ An act to provide for the adoption of trade-marks, labels, symbols or private stamps by any incorporated or unincorporated association or union of workingmen, and to regulate the same.” It is contended by appellant that the indictment should have been quashed and the judgment on the verdict arrested, on his motion as filed, for the reason that the third section of the act of 1895, and as subsequently amended, is unconstitutional in that it creates a new offense and provides for the imposition of a penalty in violation of article III, sec. 3, of the state constitution, viz.: “ No bill shall be passed containing more than one subject which shall be clearly expressed in its title,” the argument being that the words, “ and to regulate the same,” can only refer to the adoption of the trade-marks, and not to the violation of the provisions of the statute. The contention that the title to the bill is defective because it does not give adequate notice of its contents is not a new one, having been urged upon this court in a number of cases. See Commonwealth v. Muir, 1 Pa. Superior Ct. 578 ; s. c. 180 Pa. 47; Commonwealth v. Moore, 2 Pa. Superior Ct. 162; Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Baker v. Warren County, 11 Pa. Superior Ct. 170 ; Commonwealth v. Beatty, 15 Pa. Superior Ct. 5 ; Commonwealth v. Norton, 16 Pa. Superior Ct. 423 ; Commonwealth v. Ayers, 17 Pa. Superior Ct. 352; Commonwealth v. Mintz, 19 Pa. Superior Ct. 283; Stroudsburg Boro. v. Shick, 24 Pa. Superior Ct. 442. Measured by the standard determined by these cases the title to this statute is sufficiently clear to give notice of the legislative purpose of those who may be specially interested therein, and so as reasonably to lead to an inquiry into its body. The words used in the title are certainly clear and intelligible enough to direct the attention of anyone who contemplated using or displaying' a counterfeit or imitation of a trade-mark, label, symbol or private stamp to an examination into the provisions relating thereto. “ To regulate means to lay down a rule by which a thing shall be done ; to prescribe a rule by which a business or trade shall be conducted: ” Anderson’s Law Diet. “ To adjust by rule, method or established mode; to direct by rule or restriction; to subject to governing principles or laws : ” 2 Bouvier’s Law Dict. (Rawle Rev.). In McVey v. Brendel, 144 Pa. 235, the Supreme Court say: “There is no rule of morals or business upon which a man can defend himself in the preparation and use of spurious labels.” The title directs the attention of all who use or display trademarks, whether with innocent intention or guilty purpose, to an examination of the act. The assignments relating to the invalidity of the title of the act are not sustained.

The arrangement in this case was to deliver the goods at a railroad station in Adams county, hence the title to the property did not pass upon delivery to the common carrier in York county but was. incomplete until actually delivered at the place of • consignment: Dannemiller v. Kirkpatrick, 201 Pa. 218 ; Commonwealth v. Schmunk, 22 Pa. Superior Ct. 348; s. c., 207 Pa. 544. The answer of the trial judge to the defendant’s request for binding instructions at the close of the commonwealth’s case was fully justified by many decisions in addition to the ones above cited, and the second assignment^ of error is overruled.

The charge of the court to the jury is open to several objections, notably in the excerpts embraced in the seventh, eighth, ninth and twelfth assignments. Some expressions are extravagant in their character, and they would necessarily affect the judgment of the jurors adversely to the defendant by tending to belittle the defense. While the charge was replete with caution that the jury should give the defendant the benefit of all reasonable doubt, it was manifest from the words employed and illustrations used that the trial judge strongly favored a verdict of guilty: Penna. R. R. Co. v. Berry, 68 Pa. 272; Pierson v. Duncan, 162 Pa. 187; Heydrick v. Hutchinson, 165 Pa. 208 ; Cauffman v. Long, 82 Pa. 72.

It is well settled that it is not error for a judge in his charge to a jury to express his opinion upon the facts if done fairly, provided he does not give a binding direction or interfere with the province of the jury: Com. v. Orr, 138 Pa. 276. But in every case which justifies a judge in expressing an opinion the jury should be directly informed that it is his opinion, and that they are not to be bound by it. And the expression of opinion should always be made with the utmost fairness and absence of partisanship. To say to the jury: “ If you believe Jackson and Stine in corroboration of that fact, then he is not guilty. If these men are telling the truth, he is not guilty; but can you believe them; as reasonable men, can you believe them ? ” This practically eliminated their testimony from the case, and at the same time destroyed the testimony of the defendant so far as it was corroborated by them. If the jury believed the testimony of the defendant he was entitled to a verdict of not guilty, independent of the credibility of the other witnesses.

To say of a witness for the commonwealth, “ Mr. Hershey is one of the most reputable citizens, as you all know, a man who has been in business for some time in the borough of York Springs,” was giving this witness a standing with the jury entirely independent of, if not at variance with, the evidence in the case. The assumption of facts by the court, giving credit to, or detracting from, special witnesses, coupled with the statement that “ the responsibility of the punishment is not with you, and you will not allow it to unduly influence you in any way at all; it can be very heavily punished, and it ought to be very heavily punished, but the responsibility of that is not with you, it is entirely with the court,” indicated that the trial judge was impressed with a belief of the defendant’s guilt. It may be correct as a matter of ethical judgment to say that it is the bounden duty of labor to organize for its protection, but to say that “ if they fail to do so their truest interests might soon be crushed under the pitiless juggernaut of conscienceless capital,” is a form of expression more appropriate on a public rostrum than from the judicial bench. Taken as a whole the charge was calculated to mislead, and was not an unprejudiced and deliberate presentation of the law and dispassionate submission of the facts to the jury. It gave undue prominence to the testimony of Hershey, a witness for the commonwealth, and impeached the testimony of the two witnesses for the defendant. Such statements by the court exert an influence which cannot be estimated : Goersen v. Com., 99 Pa. 388 ; Commonwealth v. Goldberg, 4 Pa. Superior Ct. 142; Commonwealth v. Winkelman, 12 Pa. Superior Ct. 497.

When a case is to be submitted to the jury the credibility of witnesses and the weight and effect of their testimony is exclusively within the province of the jury, and the trend of all our decisions is to watch over and protect zealously the legitimate powers of the jury by preventing the trial judge from overstepping the line which separates law from fact. The purpose of a charge is to state and explain the law, not to carry on a process of general reasoning which tends to influence the jury in either direction. For these reasons the defendant did not have that fair and impartial trial which our laws guarantee to every citizen.

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


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Allwein v. Brown, Appellant.
    Practice, C. P. — Reservation of question of law — Trespass—Use and occupation — Statement.
    In an action of trespass for deceit and for the use and occupation of land the court reserved the following question: “Whether under all the evidence in this case the plaintiff, under the averments in the statement, is entitled to recover for use and occupation.” No exception or objection was made to the form of the reservation. Held, that although the reservation was bad in form, it would be considered by the court, inasmuch as the sole purpose ascribed to it, was that it dealt only with the question of the sufficiency of the statement to warrant a recovery for use and occupation.

      Practice, C. P. — Pleading—Statement—Causes of action — Misjoinder— Demurrer — Use and occupation.

    The misjoinder of two incongruous causes of action, one sounding in tort and the another in contract, is waived by a voluntary trial on the merits and judgment. Objection to such defects should be presented on demurrer to the statement.
    Under the Act of May 25, 1887, P. L. 271, the remedy for the wrongful occupancy or use of land is an action of trespass.
    Argued Oct. 26, 1904.
    Appeal, No. 103, Oct. T., 1904, by defendant, from judgment of O. P. Lebanon Co., Sept. T., 1901, No. 133, on verdict for plaintiff in case of Aug. D. All-wein v. Jacob J. Brown.
    Before Rice, P. J., Beaver, Or-lady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass for fraud and deceit and for tbe use and occupation of land. Before Ehrgood, P. J.
    At the trial the jury returned a verdict of $83.43 on the
    question of law reserved.
    On motion for judgment Ehrgood, P. J., filed the following opinion:
    The court at the trial reserved the question “ whether, under all the evidence in this case, the plaintiff, under the averments in the statement, is entitled to recover for use and occupation.”
    The first count, in the statement, is in trespass, founded on fraud and deceit. The evidence offered by the plaintiff did not support the allegations contained in said count and was not submitted to the jury.
    The plaintiff therefore rescinded the contract with the defendant without cause and unless the defendant also rescinded the contract or agreed to a rescission of the same there could be no recovery in this case.
    The plaintiff, after he had rescinded the contract, removed from the defendant’s farm, whereupon the defendant immediately took possession of the same and afterwards sold the same to another party. He also retained possession of the plaintiff’s house and lot for a period of one year and received the rent for the same.
    The question whether the defendant also rescinded the corn-tract was submitted to the jury and by them evidently determined against him. If the defendant also rescinded the contract it was his duty to relinquish possession of the plaintiff’s house and lot and his retaining the same made him a trespasser and liable in damages as such. The statement in this case is very loosely drawn, but the defendant pleaded to the same instead of demurring and went to trial on the merits. The statement sets forth that the defendant also rescinded the contract and refused to give up the possession of the plaintiff’s house and lot for a period of one year and collected the rent during that time to plaintiff’s damage. After a trial upon the merits we do not believe the verdict of the jury should be set aside on account of defects such as are complained of in the statement and of which advantage should have been taken by demurrer, and especially where the verdict does substantial justice between the parties.
    And now, April 29, 1904, judgment is directed to be entered on the verdict upon payment of the jury fee. Exception to the defendant.

      P. S. Reiser, for appellant,
    cited: Cox v. Highley, 100 Pa. 249.

      J. Gr. Adams, for appellee.
    The proper action for the wrongful use and occupation of real estate is in tort: McCloskey v. Miller, 72 Pa. 151; National Oil Refining Co. v. Bush, 88 Pa. 335 ; Grove v. Barclay, 106 Pa. 155 ; Silliman v. Whitmer & Sons, 11 Pa. Superior Ct. 243.

      November 20,1905:
   Opinion by

Smith, J.,

The question submitted for decision in the present case relates to the sufficiency of the plaintiff’s statement to recover for the use and occupation of his land. This appears by the course of the trial and by the question reserved: “ Whether under all the evidence in this case the plaintiff, under the averments in the statement, is entitled to recover for use and occupation.” While this reservation is not explicit or definite, and if viewed as referring to the sufficiency of the whole evidence, is bad (Wilson v. Steamboat Tuscarora, 25 Pa. 317; Wilde v. Trainor, 59 Pa. 439), yet as the sole purpose ascribed to it by its author, is that it deals only with the question of the sufficiency of the statement to warrant a recovery for use and occupation; and as there is no exception or objection to this interpretation, we accept this view of it.

Discarding the averments upon which recovery was forbidden and the surplusage, the remainder of the plaintiff’s statement avers, in substance, “ that the defendant took possession and refused to give up the plaintiff’s house and lot of ground for one year, and collected the rent from the tenant.” The verdict was for the rent due and interest thereon, It is contended that the statement is defective in uniting two incongruous causes of action, sounding in tort and in contract. But this misjoinder is waived by a voluntary trial on the merits, and judgment. The alleged faults in pleading could have been amended under the act of 1806. To be effective these objections should have been presented on demurrer to the statement, “ after a trial on the merits, verdict, and judgment, no defect would be fatal unless it is shown to have injuriously affected the trial; on appeal the proper amendment will be considered to have been made: ” Chapin v. Cambria Iron Co., 145 Pa. 478; Allegheny v. Nelson, 25 Pa. 332. No such injurious showing appears in the record. Under the act of May 25, 1887, the remedy for the wrongful occupancy or use of the plaintiff’s land is an action of trespass : Silliman v. Whitmer & Son, 11 Pa. Superior Ct. 243. The claims objected to were withdrawn from the jury and the case was submitted on the claim for use and occupation only. This was sufficiently averred and the recovery therefor was fully warranted.

Judgment affirmed.


text:
    Minnich, Appellant, v. Peoples Trust, Savings and Deposit Company.

      Wills — Trust and trustees — Income.
    The mother of a lunatic daughter bequeathed to her executrix, another daughter, one-half of her estate, in trust, to be safely invested in the income or so much thereof as may be deemed necessary, to be used for the comfortable maintenance and support of her lunatic daughter, and at the death of said lunatic daughter, the trust estate with the accumulated income and accrued interest was to go to the children of the executrix and trustee in equal shares. The lunatic daughter had an estate from her father the income of which was sufficient for her support. Held, that the committee of the lunatic had a right to demand from the trustee the whole of the income of the trust estate for the maintenance of the lunatic notwithstanding the fact that the lunatic had an income from her individual estate.
    Argued Nov. 15, 1904.
    Appeal, No. 32, Oct. T., 1904, by plaintiff, from judgment of C. P. Lancaster Co., Dec. T., 1903, No. 73, on case stated in case of Maria Minnicliv. The Peoples Trust, Savings and Deposit Company, Committee of Harriet Longenecker, a lunatic.
    Before Rice, P. J., Beaver, Or-lad y, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Case stated to determine right to income derived from the estate of Elizabeth Longenecker, deceased.
    The trust for the benefit of Harriet Longenecker, a lunatic daughter of Elizabeth Longenecker, as created by the will of the decedent is set forth in the opinion of the Superior Court. It appeared from the case stated that Harriet Longenecker had an individual estate derived from her father to the amount of $20,000. Maria Minnich claimed that the lunatic should be supported from the income derived from the individual estate, and that the income from the trust estate should be allowed to accumulate.
    The court entered judgment for defendant on the case stated.

      Error assigned was the judgment of the court.

      John A. Coyle, with him William 3. Keller, for appellant.

      D. McMullen, for appellee.
    November 20,1905:
   Opinion by

Smith, J.,

The contention on this appeal arises over the following clause of the will of Elizabeth Longenecker :

“ All the rest, residue and remainder of my. whole estate, real, personal, whatsoever and wheresoever, I order and direct to be divided into two equal shares and- portions and I give, devise and bequeath one equal part thereof unto my daughter, Maria Minnich, her heirs, executors, administratrix and assigns. The other equal part thereof I give, devise and bequeath unto her the said Maria Minnich in trust that she do continue as much thereof as possible in the real estate I now hold, all situate in said Penn township and that the residue be put out and placed at interest, in some safe manner, and I order that the income or so much thereof as may be deemed necessary, be used for the comfortable maintenance and support of my daughter Harriet Longenecker, who is of weak mind. It is my request also, that the said Harriet be given a home in her, the said Maria Minnich’s family, or among people who will properly treat and care for her during her lifetime. At the death of the said Harriet Longenecker, the trust estate given and devised as herein set forth with the accumulated income and accrued interest, as well as what may remain of the household furniture and effects given by me to the said Harriet, I give, devise and bequeath unto the children of the said Maria Minnich in equal shares and parts, to those of them then living, and the issue of any of them then dead, per stirpes.”

By this clause an active trust is created with duties defined and imposed upon the trustee named. Harriet, the enfeebled daughter of the testatrix, is made the beneficiary ,■ her welfare is, naturally, of much concern to the testatrix; this is made apparent by the part quoted and the last disposing clause of the will. The terms of the trust are fixed by the will, but their interpretation is in dispute. It is a cardinal rule of construction that the intent of the testator shall govern in the construction of a will in all cases, except where a rule of law overrules the intention. This will is not embarrassed by any such rule, and the manifest intent and desire for the comfort and welfare of this invalid daughter must control. In the case stated and the decision of the court, this is made the controlling question. It is to be observed that the will orders “ that the income or so much thereof as may be deemed necessary, be used for the comfortable maintenance and support of ” the beneficiary, and as said by the trial judge this can only mean that the whole income of the one-half of the mother’s estate, or so much thereof as may be needed shall be used for Harriet’s maintenance. While the will provides for the equal division of the whole estate, the income of the one-half is placed in trust for the use of Harriet, in order that she may enjoy it, unaffected by her present disability, as well as contingencies which may arise from unforeseen causes. The trust was created for her benefit, not for the others, who are provided for by the will, and the corpus of the whole trust is made subject to the provision for the life use of Harriet. Under the law this cannot be impaired during her lifetime.

To invest the trustee with unlimited control of the income, or of any part of it, would practically defeat, pro tanto, this provision of the will, which is evidently designed to secure the comfort and maintenance of this enfeebled daughter.

The judgment is affirmed.


text:
    Augustine v. Wolf, Appellant.

      Courts — Discretion—Judicial discretion — Opening judgment.

    When courts are said to exercise a “discretion,” it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law.

      Judgment — Opening judgment — Discretion—Laches.
    While the measure of proof required by the judge to open a judgment and to clear the way to the jury, cannot be defined by rule, and a mere conflict of evidence is not, generally, sufficient, yet the defendant should be allowed a trial where he has shown by a preponderance of evidence sufficient to sustain a verdict in his favor, that he has a just defense. This is the most prudent course also when material and important questions Of fact are in serious dispute.

      Mere delay in making the application is not always sufficient ground for refusing to open judgments when third parties are not affected; nor is mere delay always the legal equivalent of laches to take effect as an estoppel. This effect depends on the facts.
    When fraud and forgery in procuring the judgment are averred, and it becomes apparent that either has been potential or controlling in a former proceeding affirmed by the Supreme Court, an inferior tribunal should give such affirmance the fullest legal effect, when the same facts are presented in any subsequent stage of that proceeding. When the fraud alleged is of such a character as to involve the crime of forgery it cannot be ratified; as a fraud effected by forgery does not admit of ratification.
    Even where forgeiy is charged there is no inflexible rule which compels the court to open a judgment.
    While a judgment should not be opened upon the defendant’s oath when contradicted by the oath of the plaintiff, yet where there are corroborative circumstances or circumstances from which inferences may be drawn corroborating the defendant, it is proper to open the judgment and refer the question to a jury. This course is also proper when the decision of the court below is a deduction from the facts and the result of reasoning from the same.
    Argued April 17, 1905.
    Appeals, Nos. 187, 188, 189, 190, 191 and 192, April T., 1905, by defendants, from orders of C. P. Fayette Co., June T., 1894, Nos. 4, 5, 6, 7, 9 and 11, discharging rules to open judgments in case of Jasper Augustine to use of Daniel Augustine, for use of Jasper Augustine v. Joseph Wolf.
    Before Rice, P. J., Beaver, Orlada, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.'
    Rules to open judgments.
    The opinion of the Superior Court states the case.

      Errors assigned were the orders of the court.

      W. 0. McKean, of Robinson McKean, with him Lindsey Sf Johnson and L. K. S. Gr. Porter, for appellant,
    cited: Jenkintown Nat. Bank’s App., 124 Pa. 337; McHugh v. Schuylkill Co., 67 Pa. 391; Shisler v. Vandike, 92 Pa. 447; Lyon v. Phillips, 106 Pa. 57; Kalback v. Fisher, 1 Rawle, 323; King v. Brooks, 72 Pa. 363; Castle v. Reynolds, 10 Watts, 51; Steckel v. Steyer, 1 North. 363; Schomaker v. Dean, 201 Pa. 439 ; Kaier Co. v. O’Brien, 202 Pa. 153; Woodward v. Carson, 208 Pa. 144.

      Haitil Ewing, with him A. D. Boyd, for appellee.
    Fryberger v. Motter, 24 Pa. Superior Ct. 317; Ansley v. Arnt, 3 Kulp, 152; Dynamite Co. v. Jones, 5 Kulp, 150; Ware v. Baldwin, 7 Kulp, 278; Nace v. Cole, 3 North. 77 ; Taylor v. Cornelius, 60 Pa. 187; Frauenthal’s App., 100 Pa. 290; Given’s App., 121 Pa. 260; Schwan v. Kelly, 173 Pa. 65; Haneman v. Pile, 161 Pa. 599; Hirschlan v. Krechman, 20 Pa. Superior Ct. 227; Zartman v. Spangler, 21 Pa. Superior Ct. 647.
    November 20,1905:
   Opinion by

Smith, J.,

The issue presented in the court below arose on the petition of the defendant and the answer of the plaintiff, and was heard and decided on depositions submitted to Judge O’Connor, specially presiding. The matters discussed before us relate to several transactions which may have been heard and passed upon by the referee, John B. Head, Esq., whose report was approved by the lower court and the Supreme Court: Wolf v. Augustine, 197 Pa. 367. But whether all the questions now presented were included in that proceeding, is one of the points here argued and upon which this controversy may largely turn, hence we do not pass upon it. The appeal to this court is from the judge’s decision discharging rules to open the several judgments, which by agreement are all to be heard on this appeal. In refusing to open the judgments the learned judge, after some discussion, said, in effect, that although fraud and forgery were averred in the petition, neither was proved to his satisfaction; and the rules were discharged. This ruling is sought to be justified principally on the ground that it was done in the exercise of judicial discretion, and therefore not reviewable. In their arguments at bar and in the paper-books, the parties say, substantially, that the question before us is : Was judicial discretion lawfully exercised? This is a discretion to be exercised only •“ in discerning the course prescribed by law.” In using this power it is proper to observe and adhere to the view of it expressed by Chief Justice Marshall in Osborn v. United States Bank, 22 U. S. 738 (866) : “ Judicial power, as contradistinguished from the power of the law, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a ‘ discretion,’ it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law.”

In proceedings to open judgments this power is too useful and firmly fixed as part of the law of Pennsylvania to be now shaken. When the aim is to have questions of fact submitted in due course to a jury, no unreasonable impediment to this end should be raised. While the measure of proof required by the judge to clear the way to the jury cannot be defined by rule, and a mere conflict of evidence is not, generally, sufficient, yet “the defendant should be allowed a trial where he has shown by a preponderance of evidence sufficient to sustain a verdict in his favor that he has a just defense.” This is the more prudent course also when material and important questions of fact are in serious dispute. In the opinion refusing to open it is said: “ The allegation of forgery if promptly made and sustained would be all sufficient to warrant the opening of these judgments.” Yet this allegation was dismissed, mainly on the ground that it was not made “ until the time came for taking testimony in support of the rule to show cause.” Mere delay in making the application is not always sufficient ground for refusing to open judgments when third parties are not affected : Gibson v. Simmons, 134 Pa. 189; nor is mere delay always the legal equivalent of laches, to take effect as an estoppel; this effect depends on the facts: Halstead v. Grinnan, 152 U. S. 412 (14 Sup. Ct. Repr. 641). As it does not appear by the record that the plaintiff was deceived or misled to his injury by the conduct of the defendant, we see no ground for invoking the doctrine of estoppel in the proceedings subsequent to the referee’s report.

When fraud and forgery are averred and it becomes apparent that either has been potential or controlling in a former proceeding affirmed by the Supreme Court, an inferior tribunal should give such affirmance the fullest legal effect, when the same facts are presented in any subsequent stage of that proceeding. When the fraud alleged is of such a character as to involve the crime of forgery it cannot be ratified; as a fraud effected by forgery does not admit of ratification. Questions of such serious import, involving crime, are usually for the jury: Shisler v. Vandike, 92 Pa. 447; Schomaker v. Dean, 201 Pa. 439; Kaier Co. v. O’Brien, 202 Pa. 153. The execution of the note upon which the judgment was entered in the Court of Common Pleas to No. 6 June Term, 1894, is not denied and while the depositions of several witnesses are in corroboration of the defendant’s contention, others are in contradiction. Ordinarily it is for the judge who heard the evidence to pass upon the question, even where forgery is .charged, as “ There is no inflexible rule which compels the court to open the judgment : ” Shannon v. Castner, 21 Pa. Superior Ct. 294. It remains an equitable proceeding to be decided by a chancellor, and a jury if necessary. While a judgment should not be opened upon the defendant’s oath when contradicted by the oath of the plaintiff, “ yet where there are corroborative circumstances or circumstances from which inferences may be drawn corroborating the defendant, it is proper to open the judgment, and refer the question to a jury : ” Cloud v. Markle, 186 Pa. 614. This course is also proper when the decision of the court below is a deduction from facts and the result of reasoning upon the same: Woodward v. Carson, 208 Pa. 144.

The fraud alleged against the judgment entered in the common pleas to No. 6, June Term, 1894, does not involve the crime of forgery or other public offense, but affects private interests which may be adjusted by the parties concerned; in this view the question raised on this rule rests in the discretion of the judge who passed upon it. After consideration, a majority of this court are of opinion that the judge did not exceed his power in refusing to open this judgment, and the refusal to open it is affirmed.

Without saying that either fraud or forgery has been established, or entering upon further discussion at present, we think, in view of all the matters presented, the learned 'judge erred in refusing to open the judgments, where forgery is alleged in defense.

The orders made in the five cases entered in the common pleas to Nos. 4, 5, 7, 9 and 11, June Term, 1894, respectively, are reversed, and the rules to open these judgments are now reinstated and made absolute.


text:
    Cubbage v. Pittsburg Coal Company, Appellant.

      Mines and mining — Deed—Covenants—Mining privileges — Ventilation shaft.

    Where a deed for thirty-one acres of coal gives the right “to transport other coal” through the entriés in the thirty-one acre tract, and gives the further right “to exercise the usual and ordinary privileges of ventilation and drainage upon the thirty-one acre tract, and to transport other coal through underground entries made or to be made in the coal so granted,” the grantee has a right to sink a ventilation shaft through the surface of the thirty-one acre tract so as to ventilate not only the entries in the thirty-one acre tract, but also entries from other tracts opening into it.
    Argued-April 27,1905.
    Appeal, No. 171, April T., 1905, by defendant, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 215, on bill in equity in case of Boyd G. Cubbage v. Pittsburg Coal Company.
    Before Rice, P. J., Beaver, Oready, Porter, Morrison and Henderson, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Superior Court.
    Defendant’s request for findings of fact were, among others, as follows:
    6. That there is not upon the thirty-one acre tract any means of ventilating the mines and entries and coal immediately underneath the same, and the said entries being old are generating black-damp, thus rendering the workings thereunder unsafe and unfit for defendant company’s employees to work, not only in the workings mentioned, but also in the remainder of said “ Grant Mine,” adjoining and adjacent thereto, and connected therewith, and that it is absolutely necessary for the safety of the operations of the workings in and under the said thirty-one acre tract, that some means of ventilating the same be immediately installed, maintained and operated.. Answer: Refused.
    7. That, the ventilating plant proposed to be installed by said defendant company is necessary for the ventilation of the workings under said tract and the premises of the plaintiff as described in his bill, as well as that portion of the “ Grant Mine ” connected therewith ; and that the site selected for the defendant company for the installation, construction and operation of said ventilating plant is the best site to insure the proper and necessary ventilation of the thirty-one acre tract and the “ Grant Mine,” as well as the safety of the miners operating same. Answer: Refused as a whole.
    9. That it is necessary to ventilate -the entries'and passages in and under said entire tract to enable defendant company to transport its coal through the same, and over said tipple and inclined plane to said railway, and that the ventilating plant which said defendant company is attempting to install on plaintiff’s land is necessary to ventilate said entries; and further that the location of the same upon plaintiff’s land, chosen for said ventilating plant is the best location therefor in order to ventilate said entries most effectually and with the least damage to plaintiff’s property. Answer : Refused.
    Defendant’s requests for conclusions of law were as follows:
    1. That the grant of all the coal under said cubbage land, and the mining rights and privileges and easements appurtenant thereto, under which defendant company is operating its “ Grant Mine,” was made at the time of severing the title to the coal and the land overlying the same, for the express purpose of operating a larger body of which said cubbage tract was a part; and the mining rights, easements and privileges granted were intended for the benefit of said larger body of coal as a whole, and not exclusively as appurtenant to said cubbage coal. Answer: Refused.
    [2. That under all the facts and testimony in this case so long as there remains unmined and mineable any coal underlying said cubbage land], and so long as the defendant company owns any coal mineable which can be transported to the Pittsburg & Steubenville (now the P. C. C. & St. L.) Railroad, through the entries and passages within said land, and over the tipple and inclined plane, now and heretofore used in connection with said “ Grant Mine,” the said defendant company has a right to erect, construct and maintain the ventilating plant complained of, as proposed by it. Answer: Refused, except as to part in brackets, which is affirmed.
    8. That so long as defendant company may own any coal, either underlying the cubbage tract or lands adjoining said tract, forming part of the “ Grant Mine,” which can be transported over the right of way, inclined plane and tipple to the Pittsburg & Steubenville (now the P. C. 0- & St. L.) Railroad, defendant has the right under the grant of mining rights and privileges connected therewith, by deed of Joseph K. Cubbage, dated May 6,1865, to transport such coal through underground entries now opened and being used in the land of the plaintiff, described in his bill of complaint, and to ventilate said entries in the manner proposed and by means of the ventilating plant whose location and construction are complained of by the plaintiff. Answer : Refused.
    5. That the said defendant, having entered into open, notorious and peaceable possession of the land upon which it is proposed to install said ventilating plant, with the knowledge and consent of the plaintiff, under the title claimed by it under said grant of mining rights, privileges and easements, the plaintiff, if any right of action he has, has a complete remedy at law by action in ejectment. Answer: Refused.
    6. That under all the evidence the plaintiff’s bill in this case should be dismissed. Answer : Refused.
    The court found, inter alia, as follows:
    1. That the grant from Cubbage to Lyon, trustee, gave no ventilating privileges to the defendant, except for the coal under the thirty-one acre tract.
    2. Inasmuch as practically all the coal under the thirty-one acre tract has long since been mined, excepting such coal as remains necessary to support the entries and the surface overlying the same; and as the shaft for ventilation now complained of is for the purpose of ventilating the “ Grant Mine,” adjoining and beyond the Cubbage thirty-one acre tract, the plaintiff is entitled to equitable relief, and the defendant must be restrained from further proceeding to sink said ventilating shaft on plaintiff’s land.
    The court awarded an injunction.

      Errors assigned among others were (3-12) rulings as above; (14) in not dismissing the bill.

      A. M. Keeper, with him Elliott Rodgers and Charles M. Johnston, for appellant,
    cited: King v. N. Y. & C. Gas Coal Co., 204 Pa. 628; Lillibridge v. Coal Co., 143 Pa. 293; Webber v. Vogel, 189 Pa. 156.

      A. G. Smith, of Smith Kearns, for appellee,
    cited: Potter v. Rend, 201 Pa. 318; Harris v. Ryding, 5 M. & W. 60; Allshouse’s Est., 23 Pa. Superior Ct. 146.
    November 20, 1905:
   Opinion BY

Oblady, J.,

By deed dated May 6, 1865, Joseph K. Cubbage conveyed to one Lyon, trustee, all the coal in a tract of land containing thirty-one acres and forty-five perches situate partly in the borough of Carnegie and partly in the township of Collier, together with the right to mine and carry away said granted coal, and in so doing to exercise the usual and ordinary privileges of ventilation and drainage upon the land of the said Joseph K. Cubbage, but in such manner as to do no unnecessary injury thereto, with the right also to transport other coal through underground entries made or to be made in the hereinbefore granted coal and over the railway hereinafter mentioned ; also, a right of way for an inclined railway with the necessary appurtenances across the land of the said Joseph K. Cubbage from said granted coal to the Pittsburg and Steubenville Railroad, with the free and uninterrupted right to construct, maintain, and operate the same; also, the use of one acre of land parallel to the tract aforesaid, at or about the pit mouth, for a check house and other necessary and convenient uses in connection with the mining operations, such as the deposit of timber, coal, ashes, slack, etc., but the same shall not be occupied by any dwelling house ; also, the use of such ground, parcel of the tract aforesaid, along the line of the Pittsburg and Steuben-ville Railroad as may be necessary or convenient for sidings and switches for the proper transaction of business in the loading and transporting of coal. The habendum clause of the deed is as follows, namely: “To have and to hold the said right of way, uses, easements, and privileges unto the said party of the second part, his heirs and assigns, so long as he or the firm of Lyon, Shorb and Company, his or their heirs or assigns may have any coal, whether now owned or hereafter to be acquired which can be brought by said route to the Pittsburg and Steubenville Railroad, and the said described coal hereby granted or mentioned and intended so to be with the appurtenances, unto-the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of the said party of the second part, his heirs and assigns forever, as the property of and in trust for the firm of Lyon, Shorb and Company, according to the provisions of a certain deed relating to -the real estate of said firm.” The title thus acquired by Lyon, trustee, became vested in the Pittsburg Coal Company, the defendant corporation, which at the time of filing this bill in equity was the owner of fourteen other adjacent tracts and parcels of land, aggregating 1,050 acres and comprising the territory operated under the name of the Grant mine. For the purposes of this case it is admitted by an agreement filed, that the defendant company is the owner of all the stratas, or veins of coal, and the entries underlying and within the said tract of land containing thirty-one acres and forty-five perches. By the same agreement it is admitted that the title is in the plaintiff to fourteen acres, 128 perches, suject to the prior conveyance above mentioned of all the coal in and under the larger tract of land containing thirty-one acres and forty-five perches of which the plaintiff’s land is a part. It is conceded, and is found as a fact by the court below that “ the pit mouth or tipple of the Grant mine is located upon an acre of land in the Joseph K. Cubbage tract immediately adjoining the thirty-one acre tract which lies between the pit mouth and the balance of the 1,000 acre tract.

In September, 1903, the defendant began to sink a shaft on the plaintiff’s land for the purpose of ventilating the Grant mine generally and in its entirety. This proposed construction was intended to include when completed an excavation of eight by ten feet in the coal of t]je mine, with the earth and debris taken therefrom and deposited about the mouth of the shaft; also a suitable building to maintain a ventilating fan and other ventilating contrivances, including an engine. The plaintiff filed a bill in equity praying for an injunction to restrain the defendant from sinking the ventilating shaft, and denied its right to construct and maintain such a shaft on his land under the terms of the grant above recited. After an answer and replication were filed the case was set down for trial, when testimony was taken and a decree entered perpetually enjoining the defendant company from sinking and maintaining the shaft on the plaintiff’s land, from which decree the defendant took this appeal.

The conclusions of law upon which the decree is founded are as follows : 1. That the grant from Cubbage to Lyon, trustee, gave no ventilating privileges to the defendant except for the coal in the thirty-one acre tract. 2. Inasmuch as practically all the coal under the thirty-one acre tract has long since been mined, except such coal as remains necessary to support the entries and the surface covering the same, and as the shaft for ventilating now complained of is for the purpose of ventilating the Grant mine adjoining and beyond the Cubbage (thirty-one acre) tract, the plaintiff is entitled to equitable relief, and defendant must be restrained from further proceedings in sinking the ventilating shaft on the plaintiff’s land.

In arriving at the conclusions of law the court below found that: 1. The operations of the Grant mine are and have been exclusively confined to the vein of coal known as the Pittsburg vein, and of this more than one-half of the 1,000 acres has been exhausted. 2. That there is no sufficient evidence of other coal strata below the Grant mine. 3. That the coal under the thirty-one acre tract has been mined and practically exhausted for more than twenty years, except so much as is necessary to support the entries and surface over them. 4. The 400 or 500 acres of coal unmined in the 1,000 acre territory of the Grant mine must of necessity be hauled through the accessible entries under the thirty-one acres and the coal supporting the same must therefor remain substantially in its present condition until the entire Grant mine and the thirty-one acres are completely exhausted. «,

The proof adduced by the defendant at the trial was positive and uncontradicted that there was considerable unmined coal of the Pittsburg vein in the thirty-one acre tract. The chief mining engineer of the defendant stated that he had no doubt that there were large areas in the tract in which no portion of the coal was removed; that there was at least six to eight acres, and the probabilities were that. there was a great deal more than that. An engineer called for the plaintiff fixed the área of unmined coal at three acres, and all agreed that the pillars and supports left in the mine, while it was being actively operated, would furnish considerable coal when the workings were finally abandoned. It was also testified by witnesses for the defendant that veins of other merchantable coal were located under the Pittsburg vein within the thirty-one acre tract. This evidence was not by actual demonstration by drill holes in the property, but was based upon the geological strata as found in the region, which were uniform and undisturbed, as well as upon the experience of the witnesses in other and near-by opera-. tions. The court did not directly find this fact one way or the other, only, that there was no sufficient evidence of other coal strata below the Grant mine of the Pittsburg seam. This phase of the case is not vitally important as it is now presented. The real question being the right of the defendant to install, operate, and maintain a ventilating’ shaft on the thirty-one acre tract so as to furnish sufficient air in the entries and workings in that tract and in the other operations of the Grant mine. The present necessity for ventilation of the Grant, mine, to insure the health and safety of the miners working therein, is admitted by all witnesses who testified on that subject. It was undisputed that the old workings generated black-damp, a gas dangerous to life, and the mine inspector of the district gave notice to the defendant that the ventilating power must be increased. After an examination of the premises he fixed upon the location, which was adopted by the defendant, as the most desirable to secure the safe ventilation of the mine, with the least damage to the surface land. The defendant’s title to all the coal in the thirty-one acre tract, including the seam now being worked and all ]ower strata, is not open to question, and in the deed which assures to it all this coal, is the grant of the right “ to exercise the usual and ordinary privileges of ventilation and drainage upon the thirty-one acre tract, and to transport other coal through underground enfries made or to be made in the coal so granted.” In the development of the territory, to which the thirty-one acre tract was the key or outlet, it would follow that some provision would of necessity be required for the ventilation of the deeper or more remote workings, and the right to erect necessary appliances to furnish a constant and adequate supply of pure air to insure the health and safety of the miners was as direct a subject of the grant as the right to construct and operate an inclined railroad; to deposit timber, coal, slack, etc., on the one acre of land adjacent to the pit mouth; or to erect and maintain necessary sidings, switches, etc. The restriction on this right was limited by the words, “ but in such manner as to do no unnecessary injury thereto.” It is not contended that the location selected by the defendant is an improper one, or that another site would do the plaintiff any less injuiy. His contention being that the de.fendant has no right at all to erect a ventilating shaft on his fourteen-acre tract. The deed does not limit the time within which the coal in the thirty-one acres is to be removed, nor that it is to be mined before the “ other coal ” mentioned should be mined. It would be a physical impossibility to confine the gases generated in any one tract to that original territory, and the intention of grantor and grantee is apparent that the thirty-one acre tract was intended to be a part of a larger operation from which the coal was to be delivered to the railroad cars through this Cubbage tract. “ The usual and ordinary privileges of ventilation ” mentioned could only refer to the character and extent of ventilation made necessary by the development and extension of the mine workings. It would not be possible to mine and haul “ the other coal ” from distant workings without providing for safe ventilation in the entries and passages in the thirty-one ■ acre tract. The mine inspector testified that the place selected “ was the only suitable location there.” This witness, whose duty it was to inspect the mine and require that the ventilation should be ample and adequate for the safety of the miners, explained fully the reasons which determined him in making this selection for the location of the ventilating plant, and he is not contradicted in any particular. It was a matter reasonably in contemplation of the grantor when he conveyed to Lyon, trustee, that the usual and ordinary ventilation of the mine would refer to the time when such ventilation became necessary. Such ventilation is not confined by direct words to the thirty-one acre tract, and the words of the grant are to be taken most strongly against the grantor. The “ said granted coal ” was but a part of the grant, and the proper ventilation of the underground entries in the thirty-one acre tract was a necessary incident to the right “ to transport other coal ” through these entries. Such right was directly given in apt words, and this without reference to the source of the air in any part of the mine.

The courts have much more consideration for the substance than the form of deeds, and they look less at the form used to pass the estate, and the words used in expressing the intention of the parties, than they do to the estate itself, which the parties intend to pass by the deed. The habendum, the object of which is to define precisely the quantity of the estate to be granted, declares that the grantor, his heirs and assigns, are to have and to hold the said right of way, uses, easements, and privileges so long as they may have any coal, whether now owned or hereafter to be acquired, which can be brought by said route to the Pittsburg and Steubenville Railroad.

The right to surface support is not involved in the case as now presented, there being no allegation of danger of subsidence of any part of the surface by reason of the construction of a ventilating shaft. As was said in Pringle v. Vesta Coal Co., 172 Pa. 438, “ If the owner of the coal undertakes to mine and remove the coal, as he has an undoubted right to do, qnd damage results to the surface, either (a) from negligence in conducting his mining operations, or (5) from failure to properly and sufficiently support the surface, or (e) from both these causes combined, the surface owner is entitled to recover compensation for such injury as he may show he has sustained: ” Youghiogheny River Coal Co. v. Allegheny Nat. Bank, 211 Pa. 319. That principle has no relation to the case in hand, which depends upon the construction of the grant “ to exercise the usual and ordinary privileges of ventilation ” by using a portion of the surface, eight feet by ten feet in size, within which to sink an air shaft through the surface and intermediate stratas, if the necessity for such ventilation is established and the method employed is the usual and ordinary one and in such manner as to do no unnecessary injury thereto. The necessity for ventilation of the Grant mine must be taken as clearly established by the testimony, and the character of the means adopted to secure a proper ventilation are not questioned, as being other than the usual and ordinary ones.

If our construction of the Cubbage-Lyon deed is the correct one it follows that the decree must be reversed. The appellant’s request for finding of facts embraced in the third, fourth and fifth assignments of error should have been affirmed, and its requests for findings as conclusions of law, embraced in the sixth, seventh, eighth and tenth assignments of error should have been affirmed.

The eleventh, twelfth and fourteenth assignments of error are sustained, the decree is reversed and the bill dismissed.

Rice, P. J., and Henderson, J., dissent.


author: Morrison, J.,

text:
    Lenhart v, Cambria County, Appellant.
    ■ Statutes — Construction—Legislative debates.

    In construing a statute, the courts will not consider the debates of the legislature which passed it.

      Sheriffs — Compensation—Statutes—Repeal—Acts of April 2, 1868, P. L. 3, and July 11, 1901, P. L. 663.
    ■The Act of July 11, 1901, P. L. 663, entitled “An Act to regulate and establish the fees to be charged by sheriffs in this commonwealth, and to provide for the taxation and collection of the same,” supersedes and repeals the fee bill of April 2, 1868, P. L. 3.
    Under the Act of July 11, 1901, P. L. 663, the sheriff is entitled to a fee of ten cents per mile from the place where he receives convicts and lunatics, for the distance necessarily traveled to the places of their delivery, and for his return to his starting point, if his return to such point is a necessary portion of his official trip.
    Where the sheriff has several commitments placed in his hands for several persons, at the same time, he is entitled to mileage on each commitment.
    The six cents mileage for each prisoner is direct and not circular mileage.
    The additional sum allowed by the Act of July 11, 1901, to the sheriff for “necessary help and expenses,” is intended to cover reasonable help and expenses in transporting and delivering the convicts and lunatics to the penitentiary -and asylum. If there is any dispute as to whether the charges for help and expenses are reasonable, the question is for the jury and not for the court. • -

      Practice, C. P. — Trial—Reservation of question of law.

    In an action by a sheriff against a county to recover for charges and expenses, it is improper for the court to give binding instructions for the plaintiff for an amount stated, and say that if this rate of charges is wrong “under the law as we shall construe it we will correct the verdict.” This is not a proper reservation of law.
    Argued May 1, 1905.
    Appeal, No. 179, April T., 1905, by defendant, from judgment of C. P. Cambria Co., June T., 1904, No. 410, on verdict for plaintiff in case of Samuel Lenhart, Sheriff, v. Cambria County.
    Before Rice, P. J., Beaver, Or-lady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit by the sheriff for charges and expenses. Before O’Connor, P. J.
    The court charged as follows :
    The plaintiff in this case claims that he is entitled to 1529.96 from the county of Cambria, which amount he says is due and unpaid, for services rendered, at different times and under the circumstances testified to by him while on the witness stand. There is no question of fact to be determined by you in the case; that is, there is no disputed question of fact in the case or between the parties to this proceeding. [The matter will resolve itself into a legal question, which must be determined by the court, namely, the construction of the act of assembly under which the plaintiff claims the rate of charges which he is entitled to make for certain services rendered by him as sheriff of Cambria county.] [1] [The counsel for the defendant differs from the counsel for the plaintiff in the construction of the act of assembly, and that question will necessarily be determined by the court, because that duty is imposed upon the court, and there being no disputed questions of fact in the case, we have concluded that it is better to have the jury render a verdict for the plaintiff for the amount of his claim; ] [2]; then, after hearing the legal arguments, if we come to the conclusion that the plaintiff has made his charges under an. act of assembly which does not apply to the particular services rendered, or which does not entitle him to the rate of charges fixed by him, we will reduce the amount of your verdict. We do not care to decide the question involved hastily.
    The act of assembly now under consideration, so far as we are concerned, has not been passed upon by the courts of this state, and when we undertake to construe an act of assembly which materially changes the law with respect to matter now in issue, we prefer to do so carefully in order that it may be a guide for future use, and also that in case the parties conclude that the higher court may construe it.differently that they may have the opportunity to take the case to the higher court.

      [We have therefore concluded that the proper practice in this case is to direct you to render a verdict in favor of the plaintiff for $529.96 and, as we have suggested, if this rate of charges is wrong, under the law as we shall construe it later, we will correct the verdict, and the parties feeling injured thereby may then be in a position to have the matter remedied in the higher court.] [3]
    We therefore direct you to render a verdict in favor of the plaintiff in the sum of $529.96.

      M-rors assigned were (1-3) above instructions, quoting them.
    4. In reserving his construction of the acts of assembly to the jury before directing a verdict.
    5. In allowing $4.00 per day for each one of the deputies.
    6. In allowing six cents .mileage for each of the convicts instead of three cents.
    7. In allowing the plaintiff mileage on any of the commitments.
    8. In allowing ten cents circular on each of the six commitments when direct mileage is all that could be allowed even though the law permitted it.
    9. In allowing mileage on six commitments which were contemporaneous.
    10. In directing the jury to render a verdict for the full amount of the plaintiff’s claim, viz.: $529.96.

      William Davis, for appellant.
    In no case is the county liable for.the costs unless made so by statute : Codding v. Bradford County, 116 Pa. 47; Crawford County v. Barr, 92 Pa. 359; Franklin County v. Conrad, 36 Pa. 317.
    Even though the court should disregard the original and amended bills, the language of the act of 1901 has failed to provide for fees for the sheriff in this and similar cases, and since the same is not inconsistent with the act of 1868, we con- . tend that the plaintiff’s fees are fixed by the act of 1868: Big Black Creek Improvement Co. v. Com., 94 Pa. 450; Honeybrook Twp. v. Chester County Rep. 464.
    All mileage should be allowed on a straight basis of one way except where circular mileage is expressly given : Davison v. Franklin County, 5 Pa. Dist. Rep. 745; Ingram v. Chester County, 5 Pa. Dist. Rep. 747; Conley v. York County, 5 Pa. Dist. Rep. 748 ; Smith v. Altoona, etc., R. R. Co., 182 Pa. 139; Barron v. Lackawanna County, 7 Pa. Superior Ct. 124 ; Price v. Lancaster County, 7 Pa. Superior Ct. 119; McKniff v. Delaware County, 7 Pa. Superior Ct. 123; Martin v. Clinton County, 8 Kulp. 83.

      P. J. Little, for appellee.
    It is for the court and not the legislature to declare the meaning of an act of assembly: East Grant Street, 121 Pa. 596 ; Cumberland County v. Boyd, 113 Pa. 52 ; Haddock v. Com., 103 Pa. 243; Bank of Pennsylvania v. Com., 19 Pa. 144.
    Defendant contends that the words, “ten cents a mile for. each mile actually traveled and necessary ” have been construed by the courts to mean direct and not circular mileage. Appellee denies that any court has ever interpreted words as broad and comprehensive as these to mean direct mileage : Price v. Lancaster County, 7 Pa. Superior Ct. 119; Bucks County Coroner’s Inquisition, 17 Pa. C. C. Rep. 553.
    A separate commitment was issued for each prisoner and handed to the sheriff. This writ commanded the sheriff to deliver the prisoner to the penitentiary. He has the right to a separate'charge'for expenses incident in the execution of this process the same as if he had a summons or execution or warrant; and the fact that the county is to pay the costs does not change the terms of the act: Smith v. R. R. Co., 182 Pa. 139 : Shrope v. Northampton County, 3 Lancaster Law Rev. 123.
    November 20,1905:
   Opinion by

Morrison, J.,

This was an action of assumpsit tried before the court and a jury for the purpose of determining the amount due the plaintiff for the removal of certain convicts and lunatics to the penitentiary and to the proper asylums.

The first important question raised in the record is whether the sheriff’s compensation is regulated by the fee bill of April 2, 1868, P. L. 3, or by the Act of July 11, 1901, P. L. 663. The learned counsel for the appellant vigorously contends that the act of 1868 was not repealed by the act of 1901, and that the. sheriff’s compensation for the services claimed in this suit must be fixed under the act of 1868. In his endeavor to sustain this position, he saw fit to offer testimony as to what took place in the legislature when the act of 1901 was under consideration. The interesting testimony and argument does not convince us that we can construe the act of 1901 by investigating the discussions and debates of the legislature that passed it. In Bank of Penna. v. Commonwealth, 19 Pa. 144, it is said by Black, O. J., (p. 156): “ The court below charged the jury that the evidence of public embarrassment, the proclamation and message' of the governor, the journals of the house of representatives, and the reports of its committees, should be wholly disregarded. What less could any court be expected to do with such evidence ? It was not only of no value, but it was delusive and dangerous.”

In County of Cumberland v. Boyd et al., 113 Pa. 52, the Supreme Court (p. 51) said: “In giving construction to a statute we cannot be controlled by the views expressed by a few members of the legislature, who expressed verbal opinions on its passage. Those opinions may or may not have been entertained by the more than a hundred- members who gave no such expression. The declarations of some and the assumed acquiescence of others therein, cannot be adopted as a true interpretation of the statute. Keeping in mind the previous law, the supposed evil and the remedy desired, we must consider the language of the statute, and the fair and reasonable import thereof.” Adopting this rule of construction we are convinced that the contention of the appellant cannot be sustained. In our opinion, the act of 1901 is so in conflict with the act of 1868, that the latter must fall, as-to the questions raised in this suit.

The title of the act of 1901 is: “ To regulate and establish the fees to be charged by sheriffs in this commonwealth, and to provide for the taxation and collection of the same.” This title is very comprehensive and it indicates the intention of the legislature to cover the whole subject. On page 665 we find: “ For executing any process, warrant, capias, attachment, decree, sentence or order of court, where the defendant’s body is to be taken in custody, as follows: For receiving, docketing and making return, one dollar; for each arrest, one dollar and mileage; for transportation of each prisoner, six cents per mile, in addition to necessary help and expenses.” On page 666: “ For traveling expenses or mileage, in serving or executing any of the writs, rules, orders, decrees, processes, or performing any of the duties or services herein specified, and intended so to be or authorized by law, the sheriff shall be entitled to receive and have taxed as costs ten cents a mile, for each mile actually traveled and necessary, the same to be allowed on each separate writ, rule, order, decree, process or service performed: Provided, That he shall not receive more than one mileage, where the plaintiff and defendant, or plaintiffs and defendants, in two or more cotemporaneous writs are the same.” On page 667, section V,“ That all acts or parts of acts in force at the date of the passage of this act, inconsistent with its provisions, are hereby repealed: Provided, the provisions of this act shall not be construed to repeal any local or special laws.”

In our opinion the compensation of the sheriff for delivering the convicts and lunatics in accordance with the order of the court must be fixed and determined under this statute.

The questions for determination may be stated thus : 1. Is the sheriff entitled to ten cents a mile direct from the place where he received the convicts and lunatics to the places of their delivery, or is he entitled to this sum per mile circular or both ways ? 2. The sheriff, having six commitments placed in his hands for six several persons, at the same time, can he charge mileage on each- commitment or is he entitled to mileage on one ? 3. Is the sheriff entitled to six cents per mile for each prisoner direct? 4. How is the compensation for the necessary help and expenses to be determined ?

The first question was decided by this court in Kottcamp v. York County, on April 17, 1905, 28 Pa. Superior Ct. 96. In that case it was said : “ The language of the sheriff’s fee bill of July 11,1901, P. L. 663, relating to traveling expenses or mileage, is ‘ ten cents a mile for each mile actually traveled and necessary.’ Nowhere in the act is the phrase ‘ circular mileage ’ used with reference to any particular service; there is, therefore, no ground for presuming, as there was in Price v. Lancaster County, 7 Pa. Superior Ct. 119, that where it is not used direct mileage or mileage one way was intended. Giving to the words of the act their plain and obvious meaning a ruling which would restrict the right of recovery to mileage one way would be unwarranted. The question is how many miles were actually and necessarily traveled and this question cannot be determined by applying the arbitrary rule contended for by the appellant’s counsel.” See also Peeling v. York County, 212 Pa. 245.

The above settles the question in this court that the sheriff is entitled to mileage from the place where he received the convicts and lunatics, for the distance necessarily traveled to the places of their delivery and for his return to his starting point, if his return to such point was a necessary portion of his official trip.

Upon the second question we feel compelled to hold that the plain terms of the act “ the same to be allowed on each separate writ, rule, order, decree, process or service performed,” entitles the sheriff to charge ten cents a mile for the distance necessarily traveled on each order or commitment computed as indicated in answer to the first question. The proviso, “ that he shall not receive more than one mileage where the plaintiff and defendant or plaintiffs and defendants, in two or more contemporaneous writs are the same,” does not limit the sheriff’s right to charge on only one order or commitment for the plain reason that in the cases under consideration, the plaintiffs and defendants are not the same.

As to the third question, the act of 1901 in plain terms authorizes the sheriff to charge for transportation of each prisoner, six cents per mile, in addition to “ necessary help and expenses.” This we hold means mileage one way.

The fourth and last question is what is meant by necessary help and expenses. In our opinion, this means reasonable help and expenses in transporting and delivering the convicts and lunatics to the penitentiary and asylum. The act of 1901 does not fix the amount of this compensation and this, probably for the reason, that in one case the sheriff might need two or more assistants or helpers, while in another he might need but one and perhaps none. It then becomes a question of fact, in case of dispute, as to how much help the sheriff was entitled to employ as well as the compensation for the same and the necessary expenses. In the case in hand, the plaintiff fixed this amount and the learned court instead of referring it to the jury, under appropriate instruction, undertook to hold, as matter of law, that the charges for help and expenses were reasonable. This was manifest error. First: Because the court is not vested with authority to decide such a disputed question; and second: Because the question of the help employed and the expenses were made out by oral testimony, on the part of the plaintiff, and in no case can the court give binding instructions in favor of the plaintiff, when the amount of his recovery depends upon oral testimony: Barnett v. Becker, 25 Pa. Superior Ct. 22, and cases there cited. See also Peeling v. York County, 212 Pa. 245.

We have not discussed the assignments of error seriatim and do not propose to do so. But we think we have covered all of the material questions raised, except the third assignment, wherein the court gave a binding instruction in favor of the plaintiff for a verdict of $529.96; and saying that if this rate of charges is wrong, under the law as we shall construe it later, we will correct the verdict, and the parties feeling injured thereby may then be in a position to have the matter reviewed in a higher court. In this there was no question reserved in any legal form and such practice cannot be commended. If the learned court had reserved the legal questions in proper form, and had allowed the jury to find the necessary facts, the ease would have been in position so that we could have entered a final judgment, but unfortunately this was not done, and the case must go back for another trial. We cannot say what-would be a reasonable amount to allow a sheriff for help and expenses.

We have already said that the learned court erred in assuming to fix the amount of the verdict in the first instance, and saying that he might thereafter change it, does not cure this error. The moment the court fixed the amount of the verdict and discharged the jury, the opportunity for a correct determination of the amount which the county ought to pay the ■ sheriff was lost and the trial was fruitless.

So far as in harmony with this opinion, the assignments of error are sustained and the judgment reversed with a new venire.


text:
    Commonwealth v. Shanor, Appellant.

      Evidence — Criminal law — Proof of another crime.

    Whenever a case is such that proof of one crime directly tends to prove any fact material in the trial of another such proof may be admitted, and the fact that it may tend to prejudice the defendant in the minds of the juroi's, is not necessarily ground for its exclusion; but where the proof has no relation to the crime under examination, but concerns an act committed in another jurisdiction, it is inadmissible.
    Argued May 9, 1905.
    Appeal, No. 245, April T., 1905, by defendant, from judgment of Q. S. Butler Co., June T., 1904, No. 22, on verdict of guilty -in case of Commonwealth v. John .Shanor.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Indictment for adultery. Before Galbreath, P. J.
    At the trial Mr. McKelvey, proprietor of the City Hotel of Punxsutawney, J elf erson county, Pa., was asked the question:
    “ Q. Do you know the defendant, John Shanor ? A. I cannot say that I do.”
    Objected to as immaterial.
    The Court: I think anything that would indicate the relation of these parties would be a circumstance to go to the jury.
    Mr. Henninger: We propose to show the fact that they were occupying the same room, not for the purpose of showing an independent crime, but for the purpose of showing their relations the latter part of August, the same month they are charged with here.
    The Court: I am inclined to think it'is competent.
    Objected to as irrelevant and incompetent.
    The Court: We will receive the testimony and seal a bill. [2]
    “ Q. Look at the defendant and tell us whether or not you ever saw him. A. T can’t see him in court now. I see the gentleman now, but couldn’t swear that that was the man.”
    3. The court erred in admitting the following testimony on the part of the commonwealth, which testimony, objection and ruling are as follows:

      “ Q. You may state whether or not you had any person stop at your house under the name of J. F. Brant? ”
    Objected to as incompetent.
    The Court: If you can follow that up with testimony that that was the defendant and Miss Phillips, I think it would be competent.
    Mr. Henninger: We propose to follow it up and show that the man that registered as J. F. Brant was Mr. Shanor. I propose to ask the witness on the stand whether or not a man and woman stopped at his hotel during the latter part of August, 1903, under the name of J. F. Brant and wife. This to be followed by showing that the same party that registered as J. F. Brant and wife was the defendant, John Shanor, and the deceased Annie Phillips.
    Mr. McQuistion: The witness having already testified that he cannot identify the defendant, the offer as made to prove that J. F. Brant and wife registered at his hotel is incompetent, the witness having already stated that he cannot identify the defendant, and his hotel is located without the jurisdiction of Butler county.
    The Court: The offer being made to show that parties under the name given registered at the hotel of the witness and also being accompanied by the further offer to show by other proof that the persons registered were the defendant and Annie Phillips, we think as a circumstance in the case it is properly admissible; for that reason we will overrule the objection, receive the testimony and seal a bill for defendant. [3]
    Mr. Henninger: Commonwealth offers in evidence the register from the City Hotel at Punxsutawney as identified by Mr. McKelvey.
    Mr. McQuistion: Objected to as incompetent in that the signature has not been identified, neither has there been any proof offered on the part of the commonwealth that the defendant wrote that name upon the register, nor that Annie Phillips was with him.
    The Court: The evidence as to the signature itself is not very explicit, the witness has said that he is not sure he was there when it was written, but he does say the defendant settled the bill.
    Mr. Henninger: We propose to offer with that the indictment in the present case showing his signature to the bill for the jury to judge of the similarity, and in addition I wish to offer the indictment.
    The Court: I think we will overrule the objection, receive the testimony and seal a bill for defendant. [4]
    Verdict of guilty upon which the prisoner was sentenced to $200 fine and undergo imprisonment in the penitentiary for one year.

      Errors assigned were (1) the sentence of the court; (2-4) rulings on evidence, quoting the bill of exceptions.

      Lev. MeQuistion and Everett L. Ralston, with them A. T. Scott, for appellant.

      John R. Senninger, for appellee.
    November 20,1905 :
   Opinion by

Oblady, J.,

• The information and the indictment specifically charge the commission of the offense therein named with a certain Annie Phillips at Butler in the county of Butler, during July and August, 1904. On the trial the commonwealth offered to prove that the defendant had registered at the City Hotel in Punxsutawney, Jefferson county, under the name of J. F. Brant and wife, to be followed by proof that J. F. Brant and wife were John Shanor and the deceased Annie Phillips. The hotel register was received in evidence, and the proprietor of the hotel, after a rigid examination, stated that he was not positive whether he was present or not when the name was placed upon the register, was in some doubt as to his identification of this defendant as the person who made the entry “ J. T. Brant and wife,” and did not pretend to identify the woman as Annie Phillips. The general rule is well established in civil as well as in criminal cases, that the evidence shall be confined to the issue before the court and the enforcement of this rule is stronger in criminal cases. The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment and matters properly relating thereto; to enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule, it is generally improper to introduce evidence of other offenses. But, if - facts bear upon the offense charged, they may be proven, although they disclose some other offense. The test of admissibility is the connection of the facts offered with the subject charged. Whenever the case is such that proof of one crime directly tends to prove any fact material in the trial of another, such proof may be admissible, and the fact that it may tend to prejudice, the defendant in the minds of the jurors, is not necessarily ground for its exclusion. When such evidence is offered, the same considerations arise as upon the offer of other testimony; is the evidence relative and competent ? Does it tend to prove any material fact in the issue ?

In Commonwealth v. Mosier, 135 Pa. 221, the defendant, on his direct examination, testified positively and directly that he had not committed the crime of adultery set out in the indictment at the time charged or at any other time. On cross-examination it was held proper to ask, why he had pleaded guilty to the same crime committed with the same person named in the indictment in another state; but this was not for the purpose of showing a conviction in Ohio of same offense, but for the purpose of contradicting and discrediting him, as it was his own declaration or admission of the fact, and was not rendered incompetent because solemnly made in the course of the judicial proceeding.

In Commonwealth v. Saulsbury, 152 Pa. 554, evidence was admitted under objection, to prove that the defendant who was on trial for extortion, having in custody a person not named in the indictment at another time had received money from the other person in order to release him from custody. The Supreme Court held, “We think the evidence should have been excluded. The indictment charged that the defendant had extorted money from John Bunke, Zeboster Ross and Simon Wagner, while they were under arrest, under a warrant issued by Squire Nelson. There was no charge of having extorted money from Mr. Serf, and it was error to permit evidence in regard to him to go to the jury. We cannot, of course, say how far this evidence may have influenced the jurors, but it is not competent, as a general rule, upon the trial of one offense, to permit evidence to be given of another distinct, independent offense; ” and the judgment was reversed with a venire.

In Commonwealth v. Bell, 166 Pa. 405, it was held to be proper for the commonwealth to introduce evidence of prior unlawful relations between the parties, although such evidence disclosed other indictable offenses of like nature which were barred by the statute of limitations, for the reason that the evidence was carefully restricted by the learned court below to the purpose for which it was clearly admissible; as being one of a series of acts indicating continuousness of sexual intercourse.

On the trial below, the court said, in reference to the evidence relating to facts occurring in Jefferson county, “ I may say to you in regard to the presence of the defendant in Punxsutawney with Annie Phillips, that that fact was not admitted in evidence for the purpose of showing that they committed any crime in that place. That is out of the county, and with what took place there we have nothing to do whatever; and it is only important in so far as it throws some light on what the relations of the parties were at and about that time, to corroborate the relations alleged to have existed in this county and even if it be true that improper relations existed between them in Jefferson county, we have nothing to do with that.” Under the decisions, the instruction was not improper had the facts measured up to the standard claimed by the commonwealth ; but inasmuch as there was no evidence to show that Annie Phillips was with John Shanor at the City Hotel in Punxsutawney, at the time of the registry of J. F. Brant and wife the evidence was improperly admitted. It did not tend to prove that the defendant had committed adultery with Annie Phillips for the reason that she was not identified at that place and its only effect on the jury would be to establish a separate violation of law outside of the jurisdiction of the court from that mentioned in the indictment. For this reason the judgment must be reversed.

It is conceded by the appellee that the sentence imposed wás illegal under authority of Commonwealth v. Barge, 11 Pa. Superior Ct. 164, and as the case goes back for another trial it is not necessary to specially consider the other assignments of error.

The judgment is reversed with a venire facias de novo.