text:
    Rockwell v. Keefer, Appellant.

      Taxation — Minerals—Separation of title — Unseated land.

    Where there is a separate ownership of oil, gas and minerals in a tract of unseated land such mineral right may be separately assessed for taxes.
    Argued April 13, 1909.
    Appeal, No. 31, April T., 1909, by defendants, from decree of C. P. Warren Co., March T., 1908, No. 41, on bill in equity in case of F. H. Rockwell & Company v. Warren County and C. S. Keefer, Treasurer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity for an injunction. Before Lindsey, P. J.
    The opinion of the Superior Court states the facts.

      Error assigned was decree awarding injunction,

      July 14, 1909:

      W. W. Wilbur, for appellant. —
    Under the decisions of the Supreme Court, it has become an established rule, regarding the title to land, that where there is a divided ownership of land, one owning the surface and another the gas, oil or other minerals, that each estate is to be assessed and sold separately: Westmoreland, etc., Nat. Gas Co. v. DeWitt, 130 Pa. 235; Marshall v. Mellon, 179 Pa. 371; Hutchinson v. Kline, 199 Pa. 564; Ridgway Light & Heat Co. v. Elk County, 191 Pa. 465.

      D. I. Ball, for appellees. —
    We contend that the law as we claim it to be, has been well understood and uniformly applied in practice throughout the commonwealth for more than a century, and if there be any considerable number of lawyers who understand the law to be as claimed by the appellants, it is because they have lost.the traditions of the fathers: Fager v. Campbell, 5 Watts, 287; Harper v. McKeehan, 3 W. & S. 238; Strauch v. Shoemaker, 1 W. & S. 166; Caul v. Spring, 2 Watts, 390; Collins v. Barclay, 7 Pa. 67; Reinboth v. Zerbe Run Improvement Co., 29 Pa. 139; Reading v. Finney, 73 Pa. 467; Davis v. King, 87 Pa. 261; Pottsville Lumber Co. v. Wells, 157 Pa. 5; Brown v. Hays, 66 Pa. 229; Fones’ Deed, 7 Pa. Dist. Rep. 427.
   Opinion by

Morrison, J.,

The plaintiffs were the owners of a large quantity of unseated land in Warren county consisting of 68 tracts and parts of tracts of land, containing in all 9,934 acres. In making sale* and conveying said lands they reserved all of the petroleum oil, gas and minerals therein to themselves. For the years 1904, 1905, 1906 and 1907 the owners of the surface of said land were J assessed on the unseated list with their surface right and the { state and county, school and road taxes were levied on said assessments against said lands and said taxes had been generally paid by the surface owners. For the same years the sepa-*! rate mineral rights in these lands were valued and assessed as j such to the owners, F. H. Rockwell & Company, being the oil, ¡ gas and minerals therein and rated with state, county, school 1 and road taxes which taxes being unpaid, said mineral estates or interests were properly placed upon the treasurer’s sale list by C. S. Keefer, county treasurer, to be advertised and sold for nonpayment of said taxes. The plaintiffs claiming that there is no authority for making a separate assessment of oil, gas and minerals, although the same is a separate interest in unseated lands, filed the bill in this case and obtained a final decree against the defendants restraining the sale of said separate interest or estate at tax sales for the taxes so assessed and levied thereon for the years 1904,1905,1906 and 1907, and from which j decree of the court in granting said injunction, the defendants have taken this appeal.

The learned judge below found the facts substantially as we have stated them and there is no dispute in this case as to the facts. The question involved, as stated by the solicitor for defendants, is: “Where there is a separate ownership of oil, gas and minerals in a tract of unseated land, can such mineral right be separately assessed for taxes?” The learned judge reached the following conclusions of law: 1. “That under the law an unseated tract of land must be assessed as one body; and separate ownership of timber, oil, gas and other minerals in the same unseated tract cannot be assessed separately.” 2. “The assessments having been made against the oil, gas and mineral rights owned by the plaintiffs in the several unseated tracts of land recited in the bill, separate from the body of the land, the assessments and taxes levied thereon are illegal and the defendants should be restrained from collecting the taxes.”

This important case has been ably and satisfactorily presented and argued by the able counsel representing the respective sides of the controversy. The facts were agreed upon in a clear and concise form and the controlling question squarely raised. We have read and carefully considered the opinion of the learned judge below and the argument of .the counsel who undertakes to sustain the decree. But, upon careful consideration of the statutory law and the decisions of the courts, we are constrained to hold that the court below erred in holding that separate and distinct estates in unseated land cannot be separately assessed and taxes levied and collected against the several estates in such land. The learned court below cites, approves and follows a case entitled: “Treasurer’s Deeds, unseated lands, assessments,” etc. 7 Pa. D. R., 427, decided by the late Judge Charles H. Noyes of Warren county. That opinion and decision are not convincing and we are compelled to believe that the law is otherwise, as declared by the Supreme Court. The case of Neill v. Lacy, et al., 110 Pa. 294, holds, as stated in the syllabus: “Unseated lands are alone liable for taxes assessed thereon; there is no personal responsibility upon the owner thereof. The owner of mineral rights under such land, holding by virtue of a reservation in a deed, is neither a tenant in common nor a joint tenant with the owner of the surface. Hence, a payment of taxes by such owner of mineral rights, in order to prevent a sale of the same, cannot be recovered back from the owners of the surface.” The lands in that case were assessed as unseated. The Supreme Court, in its brief opinion, said: “Each party had a separate estate therein.” Now turning to Logan v. Washington County, 29 Pa. 373, we find the Supreme Court, as long ago as in 1857, holding that: ‘ Where the owner of coal land has sold out the right to take all the coal that is in his land, and retained the land itself, the owner of the land and the owner of the coal are each taxable according to their several interests, . . . The coal is therefore necessarily included in the valuation, if it is accessible, and some person must pay the tax on it. The only question is, Shall it be paid by the owner of the coal or by one who does not own it? To this there can be but one answer. There is a divided ownership of the land, and there ought to be a divided taxation.” Here we have a plain decision that the coal sold with aq reservation of the surface or the residue of the land was a con veyance of land, and that such conveyed coal was subject to / taxation as land.

The learned court below in following the opinion of Judge Noyes was in error as to the situation created by the conveyance of the standing timber on the tract of land without limitation as to the time of removal. It was expressly decided by the Supreme Court in Dexter v. Lathrop, 136 Pa. 565, that such sale of timber would leave the grantor the sole owner of the land and the other the sole owner of the trees. “The situation is substantially that which is created when the owner of land sells the stratum of coal which underlies it to a mining company. The owner of the coal has an exclusive right to the possession of his own estat§. The owner of the surface has a like exclusive right to its possession, subject to the right of entry incidental to the grant of the coal, which resides in his grantee. They are not tenants in common of the coal or of the surface, but each is a sole tenant of his own estate.”

Caldwell v. Copeland, 37 Pa. 427, holds as indicated in the syllabus: 1. “Mines in the land of another, whether opened or unopened, may be held as land under a proper deed therefor duly executed, acknowledged and recorded. 2. Possession of the surface for more than 21 years does not carry with it the possession of the coal below it, where the title to the mineral right had been severed from that of the surface by deed.” Here we have another plain decision that mines in the land of another may be held as land. It has been elsewhere decided by the Supreme Court that when an owner conveys land reserving mines or minerals therein, he holds the same as if they had been conveyed to him by deed.

In Lillibridge v. Coal Co., 143 Pa. 293, the Supreme Court held, as stated on p. 299: “In the opinions delivered in the foregoing and other cases, we have emphatically decided that the coal or other mineral beneath the surface is land, and is attended with all the attributes and incidents peculiar to the ownership of land. We have held the mineral to be a corporeal and not an incorporeal hereditament; that the surface may be held in fee by one person and the. mineral also in fee by another person; that the mineral may be subject to taxation as land, and the surface to an independent taxation as land, when owned by a different person; that possession of the mineral may be recovered by ejectment, and title to it may be acquired by adverse possession under the statute of limitations, though not by prescription, because it is not an incorporeal right. In short, we have for nearly half a century judicially regarded the ownership of mineral, where it has been properly severed from the surface, as the ownership of land to all intents and purposes.”

In Powell et al. v. Lantzy, et. al., 173 Pa. 543, the controversy was in regard to unseated lands where a sale was made for taxes assessed and levied before the severance of the title to the surface from that to the minerals, and a purchase of the whole by the owner of the surface. The learned court below contends that the case was entirely different from the question in the present case. But the Supreme Court did hold that notwithstanding the fact that the assessment and sale were of unseated land, yet the estates held by the owner of the mineral rights “by virtue of a reservation in a deed is neither a tenant in common, nor a joint tenant with the owner of the surface; each has a separate estate; each is separately subject to taxation,” etc. It is true that the court held that a sale of unseated lands for taxes which were assessed before the severance of the title to the surface from that to the minerals, and a purchase of the whole by the owner of the surface passes a good title to the whole as against the owner of the minerals. But the reason for this holding is very apparent. The owner of the mineral estate did not have his estate assessed and taxed, and therefore it is clear why the sale for taxes which were assessed before the severance of the title to the surface from that to the minerals passed a good title to all of the estate in the land. In view of what is said in that case and the many other decisions of the Supreme Court, we cannot avoid the conclusion that if the owner of the minerals had had his interest severed from the surface and assessed and had paid his taxes before the tax sale, that no title would have passed to his mineral right. We cannot read the able opinion by Mr! Justice Fell and consider the many cases cited by him, and escape the conclusion that mineral estates in unseated lands may be assessed separately from the surface and where the taxes levied on such an assessment are paid, the sale of the land on a surface assessment will not pass title to the mineral estate.

In Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66, it was said in the opinion of the Supreme Court by Mr. Justice Williams: “But a grant of all the coal, or of the exclusive right to mine the coal is a sale of the coal in place. The conveyance of the coal creates in the vendee an interest in land. The deed or other conveyance is within the recording acts, and is subject to all the rules and regulations governing conveyances of the surface.” That case further holds that where there is a severance of the coal from the surface by a deed duly recorded it is constructive notice to all the world of the fact of severance. Thenceforward the owner of the soil may cultivate, inclose and reside upon his estate for any length of time, but his possession will not extend below it. It will not grasp nor affect in the slightest degree the estate below him which has been severed by the deed. In like manner the owner of the mineral estate may enter upon and operate it while the owner of the surface is leaving his estate unoccupied and wild, but the possession of the lower estate will not reach upward and attach to the surface. Each estate may be occupied, conveyed, incumbered, sold by the sheriff or allotted in partition, without any effect upon the other. It seems to us clear that this doctrine must apply alike to seated and unseated land.

Byers v. Byers, 183 Pa. 509, is another case recognizing that different estates in land may be held by the severance of the strata horizontally and also that partition may be made of the horizontal or coal strata.

Sanderson v. Scranton, 105 Pa. 469, is a case wherein it does not clearly appear whether the land was seated or unseated, but the first syllabus of the case indicates the trend of the decision on the question we are considering: “Where the surface of lands and the minerals in place thereunder have been severed by the agreement or conveyance of the owner, and the respective divisions have become vested in different owners, the municipal authorities are bound to levy their taxes according to the ownership and value of the divisions. And each owner can be made responsible only for the tax on his interest, whether underlying strata or surface.” It is probably fair to infer that the land in question in that case was seated or improved land, but in view of other decisions we think the principle stated includes both seated and unseated lands. That case also holds that “ Land has an indefinite extent, upwards as well as downwards, but the law recognizes horizontal divisions of land. A severance of the surface from the underlying strata may be created, either by reservation or express grant; after severance a mineral right is an independent interest in land, it forms a distinct possession, is held upon a distinct title and is as much the subject of sale, devise or inheritance, and of separate taxation as the surface land.”

The learned court below endeavors to explain and distinguish the case of Hutchinson v. Kline, 199 Pa. 564. That case was tried before the late Judge Mayer who had the reputation of being one of the ablest land lawyers in Pennsylvania. The syllabus indicates the trend of the decision: “ Where an owner of lands conveys the surface and reserves the minerals, it is his duty to notify the county commissioners of this fact, and if he fails to do so, and thereafter the lands are assessed as to the entire estate as unseated lands, and are sold as such at tax sale, the owner of the surface may purchase at such sale, and acquire good title to the minerals. It is perfectly clear from that case that Judge Mayer was of the opinion that the reserved gas, coal, iron and petroleum in an unseated tract of land created in the grantors a legal estate in such gas, coal, iron, petroleum and rights reserved, which separate and legal estate was and is the subject of distinct ownership and separate taxation. In fact he expressly so said in answer to a point submitted in the case. The real question, however, in that case was similar to that in Powell et al. v. Lantzy, 173 Pa. 543. The owner of the mineral estate did not have his interest separately assessed and therefore he lost his title. The Supreme Court affirmed the judgment of Judge Mayer on his opinion.

One of the prominent contentions of the court below and the counsel for the plaintiffs is that the estate in land created by a grant or reservation of the underlying minerals is not within the meaning of the taxation laws a “tract of land.” But we are unable to see that the decisions make any marked distinction between an estate in land and a tract of land. It is common and entirely proper, we think, to speak of a tract of land as an estate or landed estate, and we cannot see why there may not be two or more tracts or estates in the same piece of land caused by horizontal severance: The importance attached to the word “tract” by the learned counsel for the plaintiff has led us to look at the definition of the word. It means (1) something drawn out or extended; (2) a region or quantity of land or water of indefinite extent. Now, the Supreme Court has often said that oil, gas, coal and minerals when severed from the surface by grant or reservation are land. Therefore, we conclude that there may be a tract of coal or oil and gas, underlying the surface. The whole force of the argument of the learned counsel for the plaintiffs is based on the proposition that unseated land can only be assessed once for a given year and that if sold for nonpayment of taxes on such assessment, the title of the real owner passes to the purchaser for the whole body of the land extending to the center of the earth. It is conceded that no such rule pertains to seated lands. If we have not already demonstrated, from the decided cases, that oil, gas, coal and other minerals are land while in place, then we refer to the following cases: Westmoreland, etc., Natural Gas Co. v. DeWitt, 130 Pa. 235; Marshall v. Mellon et al., 179 Pa. 371; Funk v. Haldeman, 53 Pa. 229; Gill v. Weston, 110 Pa. 312; Blakley v. Marshall, 174 Pa. 425. Now, if we have established the proposition that oil and gas are minerals and that a grant or reservation of the same creates an estate in land, then why may not such an estate be assessed and charged with taxes and sold for the nonpayment of the same although the land is unseated?

If minerals reserved in a tract of land or conveyed to another by the owner of the same, who retains the surface, creates an estate in land as has been said time and again by the Supreme Court, then on what theory can the taxing officers refuse to assess and tax a mineral interest in unseated land? The practice contended for by the court below and counsel for plaintiff is manifestly unfair. Many tracts of mountain land in Pennsylvania, from which the timber has been removed, have very little value, except for the mineral underlying or supposed to underlie the same. Now, if the owner sells and conveys the minerals in such a tract and retains the surface for the purpose of, say, trying to raise a new growth of timber thereon, must he be burdened by taxation based upon the value of the tract as mineral land or else lose his title to the surface. In our opinion, the just rule, as well as the legal one, is to tax such land separately, first, on the basis of its surface value, and, second, on its mineral value.

The learned court below cites and attaches importance to the cases of Heft v. Gephart, 65 Pa. 510, and Morton v. Harris, 9 Watts, 319, saying that the most complete review of our system of taxation is by Mr. Justice Huston in the latter case. But it is manifest that no such question as we have under consideration was raised or considered by that learned judge. What he was contending for was that an assessment of an unseated tract of land, sufficiently identifying the same, would support a tax sale of the interests of all of the owners of such tract of land. That has been the law ever since and is now, but the doctrine of Martin v. Harris does not reach the case of separate horizontal estates in unseated land created by grant where each estate is separately assessed. In such case we hold that the person who has had his estate properly assessed and who has paid the taxes levied thereon cannot lose his title by a tax sale of the other estate which was also separately assessed and the taxes levied thereon had not been paid.

The assignments of error are sustained and the decree is reversed and the bill dismissed at the costs' of the plaintiffs.


source: Caselaw Access Project

author: Oblady, J.,

license: Public Domain

text:
    Commonwealth v. Benedick, Appellant.

      Criminal law — Charge—Expression of opinion by judge.

    1. It is not error for a judge in his charge to the jury to express his opinion upon the facts, if it is done fairly, and in some cases it may be his duty to do so, provided he does not give directions or interfere with the province of the jury.

      Criminal law — Larceny—Evidence—Collateral offense.

    2. Where on the trial of an indictment for larceny from the person, the evidence clearly shows that the defendant and another man robbed an old man of his watch in a saloon, evidence is properly admitted that previously in the same day the two men who were apparently strangers had acted together in crowds so that they aroused the suspicion of the police as pickpockets; but the court must carefully instruct the jury that such evidence must not be considered by them as showing an independent offense,

      Argued April 12, 1909.
    Appeal, No. 1, March T., 1910, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1908, No. 243, on verdict of guilty in case of Commonwealth v. Harry Benedick.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Indictment for larceny. Before Evans, P. J., specially presiding.
    Verdict of guilty, upon which judgment of sentence was passed.
    At the trial the commonwealth made the following offer:
    Commonwealth propose to show that the defendant, accompanied by Mr. Doyle, right near the corner of Broad street, the stopping place for the street cars, boarded a number of cars coming into town and got among the passengers on the cars, not going over fifty feet away, whereupon these men, after the crowd was out, themselves left the cars. That this occurred at least three times during that afternoon.
    Objected to as immaterial and irrelevant, the sole issue in this case being whether the defendant is guilty of the larceny of Mr. Sands’ watch in the Palace Cafe.
    The Court: The objection is overruled, and an exception noted for the defendant.
    “Q. Tell what you saw them doing with reference to the street cars. A. After the men had been pointed out to me, they in company with several other men, were working the street cars.. Q. Describe what they did. A. The McAdoo cars came down Wyoming street to Broad and stopped there. They are a peculiar built car in Hazelton, with the smoking or miners’ compartment at one end and the ladies’ end at the other, and they open in the middle like a baggage car, and these gentlemen, not less than three times, the company of them would go down and board the car, jumping on the car before it stopped. Q. About how far from the stopping place? A. They would get on at the Lehigh Valley Hotel, probably the length of the courthouse from the place where the car stopped and they would get on the car and all of them place themselves in a position where people in getting off the car would have to pass by them, and on one occasion I was sure that I saw the gentleman in question with his hand in a man's pocket.”
    Objected to and asked that it be struck out.
    “Q. Did you see him? A. Yes, sir, I saw him.”
    The Court: We think that specific act is not evidence in this case and the last answer should be stricken out. Gentlemen of the jury, the last answer of the witness, of having seen the defendant putting his hand in the pocket of a man we have struck out and you may disregard it when you come to consider this case.
    “ Q. What was the condition of these cars with reference to the number of people on them? A. Crowded to the extreme, is it was a very big day in Hazleton. Q. After all the people got off the car whether they got off? A. They stopped inside and sat down for a minute or two and then one after another would get up and strike out in a different direction. Q. Where would they all come back to again? A. Back to the porch of the Werdenbach Hotel, directly across from the Washington Hotel, and I think the cars were on the thirty minute schedule, and when the next car came they went through exactly the same performance.”
    Counsel for defendant asks that the testimony on this subject, concerning the actions of the defendant and other men prior to the trouble in Laughran's Cafe, be stricken out.
    The Court: The motion is denied and an exception noted for the defendant. [3]
    The court charged in part as follows:
    [It is a rule that an interested witness is not as apt to be as truthful as one who has no interest. In this case the defendant is interested; on the other hand, Mr. Ferry, Mr. Gorman, Stephen C. Hartman and all the witnesses called on behalf of the commonwealth, are disinterested, with the possible exception of Mr. Sands, and his testimony is perhaps — well it refers to a matter that is not an important matter as to whether this defendant is guilty or innocent.] [1]
    [If you believe the evidence of the commonwealth and disbelieve that of the defendant, then it is your duty to convict the defendant in the manner and form as indicted; if on the other hand you disbelieve the evidence of the commonwealth and believe that of the defendant, then you may acquit and it would be your duty to acquit him, if you disbelieve the evidence of the commonwealth and believe that of the defendant.] [2]
    July 14, 1909:

      Errors assigned were (1, 2) portions of charge, quoting them, and (3) ruling on evidence, quoting the bill of exceptions.

      Frank A. McGuigan, for appellant. —
    The credence to be given to the testimony of all witnesses is for the jury: Commonwealth v. Johnston, 5 Pa. Superior Ct. 584; Com. v. Gamble, 35 Pa. Superior Ct. 146; Goersen v. Com., 99 Pa. 388.
    The learned judge erred in admitting as evidence against the objection of the defendant, the testimony of Stephen C. Hartman: Com. v. Pipes, 158 Pa. 25; Shaffner v. Com., 72 Pa. 60.

      John H. Dando, assistant district attorney, with him Agram Salsbury, district attorney, for appellee. —
    It is well settled that it is not error for a judge in his charge to the jury to express his opinion upon the facts, if done fairly; in some cases it may be his duty to do so, provided he does not give a binding direction or interfere with the province of the jury: Commonwealth v. Orr, 138 Pa. 236.
    We believe that under the circumstances the commonwealth was justified in showing the general conduct of the defendant during that day, and we believe that the following authorities fully support our position: Com. v. House, 6 Pa. Superior Ct. 92; Com. v. Hutchinson, 6 Pa. Superior Ct. 405; Goersen v. Com., 99 Pa. 388.
   Opinion by

Oblady, J.,

The defendant was indicted of larceny from the person and was convicted. There is no merit in the first and second assignments of error. It has been repeatedly held, that it is not error for a judge in his charge to the jury to express his opinion upon the facts, if it is done fairly, and in some cases it may be his duty to do so, provided he does not give binding directions or interfere with the province of the jury: Com. v. Orr, 138 Pa. 276; Burke v. Maxwell’s Administrators, 81 Pa. 139; Spitzel v. Hunt, post, p. 631.

In this case the trial judge submitted the case to the jury in a careful charge, of which the defendant has no just reason to complain. The third assignment of error is entitled to more consideration. Under the testimony of all the witnesses, who had personal knowledge of the facts, this defendant, and one Doyle robbed an old man while in a saloon. They were seen with their hands in his pocket, and when caught in the act, a watch was found in the hands of Doyle, and at the same time Benedick had his hands on the old man’s shoulder. The officer who made the arrest testified that he was not more than one foot away from the defendant when he saw him run his hand down on the one side of the old man, into his vest pocket, and then try his pants pocket. When the arrest was completed the watch was in the hands of the defendant. In order to show concert of action between these two men who were apparently strangers (the defendant being a patent medicine vendor, and using at least two other names than the one in this indictment) so conducted themselves during the day, that the attention of the police was called to their suspicious conduct as pickpockets;- and for the purpose of bringing them together, and worldng in a common cause testimony was admitted under objection to show that these two men had been together in different parts of Hazleton, forcing their way through the crowds, and in a general way acting together, not for the purpose of showing an independent offense, as this was particularly excluded by the court, and when one witness for the commonwealth testified that he on one occasion “Saw him with his hands- in a man’s pocket” the court promptly directed the jury, that the answer of the witness as to having seen the defendant put his hand in the pocket of another, was to be stricken out and “You must disregard it when you come to consider the case.”

Doyle, the associate of Benedick, pleaded guilty to the charge of larceny, and offered himself as a witness for his friend, and then testified that he, Doyle, had.taken, the watch from the old man and had given it to the defendant. The defendant testified that he was a stranger to all the parties and had not-been in any way connected either with the taking or receiving, of the stolen watch.

We think under the authority of Com. v. House, 6 Pa. Superior Ct. 92; Com. v. Hutchinson, 6 Pa. Superior Ct. 405; Goerson v. Com., 99 Pa. 388, and a number of other cases holding the same conclusion, that the evidence was properly received for the purpose intended and it was properly guarded by the court. The assignments of error are overruled. The judgment is affirmed:


author: Orlady, J.,

text:
    Barclay, Appellant, v. Edlis Barber Supply Company.

      Receivers — Set-off—Contract—Affidavit of defense.

    1. A receiver can acquire no greater interest than his insolvent had in the estate; and choses in action pass to the receiver, subject to equitable right to set off existing debts at the time of his appointment.
    2. Damages arising ex contractu from any bargain, may be set off under the defalcation Act of 1705, 1 Sm. L. 57, whenever they are capable of liquidation by any known legal standard.
    Argued April 14, 1909.
    Appeal, No. 133, April T., 1909, by plaintiff, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1908, discharging rule for judgment for want of a sufficient affidavit of defense in case of Joseph H. Barclay, Receiver of W. H. Hamilton Company, v. Edlis Barber Supply Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from judgment of .justice of the peace.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      M. L. Avner, with him S. S. Robertson, for appellant. —
    The right of set-off is not permitted where the demand attempted to be set off was acquired after the appointment of a receiver: U. S. Trust Co. v. Harris, 15 N. Y. Super. Ct. 45; Van Dyck v. McQuade, 85 N. Y. 616; Smith v. Mosby, 56 Tenn. 501; Lanier v. Gayoso, 56 Tenn. 506.
    July 14, 1909:
    It is a settled principle in law that a claim of set-off cannot arise out of a right, independent of that sued upon; that a debt to be a set-off, must be in the same right: Minich v. Cozier, 2 Rawle, 111; Stuart v. Com., 8 Watts, 74; Williams v. Traphagen; 38 N. J. Eq. 57; Singerly v. Fox, 75 Pa. 112; Clark v. Brockwey, 3 Keyes (N. Y.), 13.
    And even where the circumstances of a particular case approximate that mutuality of demand which the law demands in the case of set-off, the right is denied where the allowance of a set-off would tend to create a preference to the one creditor over others: Hillier v. Ins. Co., 3 Pa. 470; Osgood v. Ogden, 4 Keyes (N. Y.), 70.

      A. C. Stein, for appellee. —
    A receiver can acquire no greater interest than his insolvent had in the estate, and choses in action pass to the receiver, subject to the equitable right to set-off existing at the time of his appointment: Alderson on Receivers, p. 231, sec. 187; Farmers Deposit National Bank v. Penn Bank, 123 Pa. 283; Meeder v. Goehring, 23 Pa. Superior Ct. 457.
    This is the proper set-off: Glennon v. Mfg. Co., 140 Pa. 594; Hunt v. Gilmore, 59 Pa. 450; Hubler v. Tamney, 5 Watts, 51; McBride v. Daniels, 92 Pa. 332; Haines v. Young, 13 Pa. Superior Ct. 303; Nixon v. McCrory, 101 Pa. 289; Lierz v. Morris, 19 Pa. Superior Ct. 73.
   Opinion by

Orlady, J.,

The plaintiff brought suit in assumpsit to recover for goods sold and delivered to the defendant of the value of $55.66. The defendant admits having purchased the goods mentioned in the plaintiff's statement, but offers in defense a set-off in the sum of $60:00 under the following conditions. Prior to the appointment of this receiver, the defendant entered into a contract with the W. H. Hamilton Company whereby it was to furnish certain bottles, as might be required by the defendant;- In order to facilitate the manufacture of the bottles the defendant furnished to the company three molds of the value of $20.00 each, in all the sum of $60.00, upon the express understanding .that the said bottle molds would at all times be the exclusive property of the defendant, and subject to its control and disposal; . and further the plaintiff agreed to allow the defendant company a credit of $60.00, if for any reason it lost, kept or broke the molds. The defendant made demand upon.the W. H. Hamilton Company, and upon the receiver for the molds, they were refused, and the plaintiff appropriated the molds to its own use, for the benefit of the W. H. Hamilton Company, thereby making the plaintiff responsible for the value of the molds, to wit: $60.00, and hence denies its indebtedness to the plaintiff in the sum of $55.66, but on the contrary avers that the plaintiff is indebted to the defendant in the sum of $4.34. The rule for judgment for want of a sufficient affidavit of defense was discharged, and the plaintiff appeals. For the purposes of this case we' must assume the facts to be as stated in the affidavit of defense. The statement of claim does not aver that the corporation is insolvent. It is clearly and particularly set out that the molds, whose value is undisputed, were kept by the company and the receiver, after a proper demand was made. Under the terms of the contract, it was agreed by the proper parties that the defendant company should receive a credit for the amount of $60.00, if they were not returned.

The purpose of our defalcation act certainly is to avoid circuity of action. It should be construed so as to give effect to that purpose. Its provisions are therefore to apply not merely when the defendant in the pleadings admits the contract upon which he is sued, but also whenever it appears that the plaintiff’s cause of action must be admitted: Hunt v. Gilmore, 59 Pa. 450; Snyder v. Rainey, 198 Pa. 356. Damages arising ex contractu from any bargain may be set off under the defalcation Act of 1705, 1 Sm. L. 57, whenever they are capable of liquidation by any known legal standard: Halfpenny v. Bell, 82 Pa. 128; Lierz v. Morris, 19 Pa. Superior Ct. 73; North German Lloyd Steamship Co. v. Wood, 18 Pa. Superior Ct. 488; Wanamaker v. Quinn, 27 Pa. Superior Ct. 288.

The agreement which forms the basis of this set-off was not made with this receiver but with the corporation before the receiver was appointed, and the receiver is bound to respect that contract as fully as the company itself would be if the receivership had not intervened. A receiver can acquire no greater interest than his insolvent had in the estate, and choses in action pass to the receiver, subject to equitable right to. set-off existing at the time of his appointment. A defendant in a suit brought by a receiver may avail himself of any defense which he has to the claim against the original party and may plead it with like effect. The appointment of a receiver does not affect the obligation of contracts, or their right of action, existing between the parties when the property is given over to the receiver and others: Alderson on Receivers, 231, 776; Farmers’ Deposit National Bank v. Penn Bank, 123 Pa. 283; Meeder v. Goehring, 23 Pa. Superior Ct. 457.

The judgment is affirmed.


text:
    Cooper v. Plymouth Township School District, Appellant.

      Municipalities — Municipal contracts — School district — Ratification— School law.

    Where a school board delegates one of its number to make a contract for necessary repairs and additions to a schoolhouse, and the district receives the full benefit of such contract, and the board subsequently at a full meeting and with all the knowledge of the facts approves the making of the contract, and orders the price thereof to be paid, objection cannot be made to such payment, merely because the action of the board was not recorded. The act of a municipality may be proved otherwise than by its records or other written documents.
    Submitted March 2, 1909.
    Appeal, No. 42, March T., 1909, by defendant, from judgment of C. P. Luzerne Co., May T., 1906, No. 147, on verdict for plaintiff in case of Joshua D. Cooper v. The School District of Plymouth Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.

      July 14, 1909:
    Assumpsit for material and labor furnished to a school building. Before Fuller, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $345. Defendant, appealed.

      Error assigned was in giving binding instructions for plaintiff.

      James T. Brennan, with him C. B. Lenahan, for appellant.—
    School directors can bind the district they represent only when they act in their official capacity: School District of the City of Erie v. Fuess, 98 Pa. 600; School District v. McBride, 22. Pa. 215; Nason v. Poor Directors, 126 Pa. 445; Roland v. School District, 161 Pa. 102; Wachob & McDowell v. School Dist., 8 Phila. 568.
    It is the duty of all persons contracting with the officers of a public corporation to ascertain the nature and extent of their authority: Roland v. School Dist., 161 Pa. 102.

      J. Q. Creveling, with him D. L. Creveling, for appellee.—
    The district was under an implied obligation to pay .the-:bill and by its unanimous vote approved it. This under the following authorities is sufficient: Genesee Twp. School District v. McDonald, 98 Pa. 444; Penna. Globe Gas Light Co. v. Buchanan, 6 Kulp, 217; Sidney School Furniture Co. v. School District, 158 Pa. 35.
    The minutes, while the best evidence, are nevertheless supplied by parol when it is shown what the action of the school board was: School District v. McBride, 22 Pa. 215; Sidney School Furniture Co. v. School District, 158 Pa. 35; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425; Fisher v. Boro, of South Williamsport, 1 Pa. Superior Ct. 386.
    The order may be used in evidence, as corroborative of the ratification: Scranton v. Hyde Park Gas Co., 102 Pa. 382.
   Opinion by

Orlady, J.,

The plaintiffs statement set out an employment by the defendant to furnish materials and do repairing to certain schoolhouses in the township of Plymouth, such as fixing the floors, windows, and doors, and other like work, together with' a promise by the defendant to pay therefor. The defendant did not offer any testimony. Subsequent to the work being done, the school board, at a regular session, considered the bill as presented by the plaintiff, and unanimously voted an approval of it by directing that an order be drawn on the treasurer for the amount of $250, which was signed by the president and secretary.

The plaintiff was engaged by a member of the board to do the work, and the material was furnished and labor performed under the supervision of this director. It does not appear that the board of school directors, as such was consulted in the first instance, or gave the order after a consultation in regard to the subject, but it does appear that the repairs and changes were necessary, and that the board did delegate its authority to one of its members to have the work done, and further that his action in the matter was ratified and approved by the full board, after having full knowledge of all the facts. The minutes of the meetings of the board of directors were kept in a very irregular manner, but the undisputed testimony shows that the proceedings were regular and that the defendant received the benefit of the plaintiff’s materials and services. The amount of the bill was reasonable, and the only irregularity in the whole proceeding was that of the officials of the school board in not making a proper record of their action. While the best evidence of an official action is the entry regularly made upon the minutes, an unrecorded act, if clearly proved, is valid and binding. In this case it would be manifestly unjust to visit punishment upon the plaintiff for a dereliction of duty of the board. The order issued to the plaintiff in this case was not sued upon as a separate cause of action but was used as corroboration of the ratification by the board of the order it gave to the director to have the work done, as well as of their approval of the itemized bill presented for their consideration at a regular meeting.

■ The act of a borough can be 'proved otherwise than by its records or other written documents, and the testimony of the witnesses produced by the plaintiff was such as to warrant the finding that the work was done by the authority of the borough: Weir v. Plymouth Borough, 148 Pa. 566; Rothwell v. California Borough, 21 Pa. Superior Ct. 234; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425.

The assignment of error is overruled. The judgment is affirmed.


author: Oklady, J.,

text:
    Powell, Appellant, v. Scranton.

      Res adfudicata — Quarter sessions — Equity—Municipalities—Annexation of land.

    An order of the quarter sessions by which territory is annexed to a city, unappealed from, is a final judgment and cannot be attacked in a collateral proceeding in equity.
    Argued March 4, 1909.
    Appeal, No. 68, March T., 1909, by plaintiff, from decree of C. P. Lackawanna Co., Sept. T., 1908, No. 35, dismissing bill in equity in case of David J. Powell v. City of Scranton, City of Scranton School District and F. L. Hitchcock, Treasurer of City of Scranton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.-
    Affirmed.
    Bill in equity to restrain collection of taxes. Before Edwards, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the bill.

      William J. Fitzgerald, with him James J. Powell, for appellant. —
    The decree of the quarter sessions and the act of 1903 on which it is founded may be attacked in this case: Fowler v. Eddy, 110 Pa. 117; Norton v. Shelby County, 118 U. S. 425 (6 Sup. Ct. Repr. 1121); Sample v. Pittsburg, 212 Pa. 533; Scott v. McNeal, 154 U. S. 34 (14 Sup. Ct. Repr. 1108); Hunter v. Pittsburg, 207 U. S. 161.

      July 14,1909:

      W. S. Diehl, with him David J. Davis, city solicitor, for appellee. —
    The court of common pleas has not the right or jurisdiction to review, reverse, nullify or set aside the judgment of the court of quarter sessions: Williamson’s Case, 26 Pa. 9; Mill Creek Twp. v. Reed, 29 Pa. 195; Doyle v. Com., 107 Pa. 20; Swatara Twp. School Dist.’s App., 1 Pa. Superior Ct. 502; Wheeler v. Rice, 8 Phila. 115.
   Opinion by

Oklady, J.,

This case was disposed of in the court below on a bill in equity and a demurrer thereto. After a full argument the demurrer was sustained and the plaintiff’s bill dismissed. A reversal of the judgment would mean the overruling of the decision of this court in Sheraden Borough, 34 Pa. Superior Ct. 639, which, after a further examination of the questions involved in that and this case, we are not willing to do. There is nothing to be gained in a review of the reasons for our conclusion as stated in the report of Sheraden Borough case.

A further purpose of the bill is to review and reverse a decree of the court of quarter sessions of Lackawanna county, by which certain territory was annexed to the city of Scranton, which stands unappealed from, and a final judgment. The question raised here in this bill in equity was raised and was fully considered in the court of quarter sessions of Lackawanna county in that case, and it must be conceded that the court of common pleas has no authority to review and set aside the judgment of that court.

Every judgment must be conclusive until reversed. Such is the character, nature and essence of all judgments. If it be not conclusive it is not a judgment. A court must either have power to settle a given question finally and forever, so as to preclude any further inquiry upon it, or else it has no power to make any decision at all. To say that a court may determine a matter and that another court may regard the same matter afterwards as open and undetermined, is an absurdity.

The act of April 28, 1903, P. L. 332, has been declared constitutional by this court in the .Sheraden Borough case, and the court of common pleas in - the case now before us rightly followed the conclusion reached by this court. See further Com. v. Parsons, 217 Pa. 435; Higgins v. Price, 36 Pa. Superior Ct. 215. A special discussion of the facts is not necessary in the light of these decisions. The judgment is affirmed.


author: Oblady, J., Rice, P. J.,

text:
    Hartje, Appellant, v. Hartje.

      Divorce — Alimony—Counsel fee and expenses of wife.

    1. Where a husband files a libel for divorce against his wife and alleges adultery as the ground for the suit, and the wife spends large sums of money advanced to her by her father in employing counsel and detectives and on general expenses in.the suit, and establishes her innocence and secures the conviction for perjury of witnesses suborned by her husband, the husband will be required to pay all such expenditures and alimony, and the appellate court will not be astute in determining whether all the items claimed were absolutely necessary, when the lower court with full knowledge of all the facts and the exercise of its discretion, has allowed them.
    . 2. It has been the uniform practice to allow a wife, destitute of a separate estate; who is either suing or defending a suit in divorce, such a reasonable sum as will enable her to carry it on. She cannot sue in forma pauperis, for she is not a pauper if she is the wife of a man who has property. To deny her the means to pay for process and professional aid is to deny her justice. The amount is a question for the discretion of the court.
    Argued April 16, 1909.
    Appeal, No. 89, April T., 1909, by plaintiff, from order of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 159£, allowing alimony and counsel fees in case of Augustus Hartje v. Mary Scott Hartje.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition for allowance to wife, respondent, for alimony, counsel fees-and expenses.

      Error assigned was order on the petition.

      John S. Ferguson, with, him John Marrón and William B. Rodgers, for: appellant. —
    Alimony ..during the suit should be confined to the actual wants of the wife, wholly uninfluenced by the fact that the plaintiff is affluent Doolittle v. Doolittle, 78 Iowa, 691; Leslie v. Leslie, 6 Abbott’s Practice (N. S.) 193; Germond v. Germond, 4 Paige (N. Y.), 643.
    July 14,1909:
    There is no law that makes it the duty of the court to allow anything to a wife to prosecute or defend a suit for divorce. ‘■•Such allowance rests in the discretion of the court: Breinig v. Breinig, 26 Pa. 161; Powers’s App., 120 Pa. 320.
    , John M. Freeman, of Watson & Freeman, with him Patterson, .Sterrett & Acheson, for appellee. —
    Allowances for counsel fees, expenses and alimony pendente lite in divorce proceedings are in the discretion of the court and will not be disturbed on ap- • peal-except an'abuse of discretion clearly appears: Powers’s App., 120 Pa. 320; Breinig v. Breinig, 26 Pa. 161; Banes v. Banes, 3 Brewster, 612; Fernald v. Fernald, 5 Pa. Superior Ct. 629.
    ‘The allowance for alimony, expenses and counsel fees should -be -liberal, the court having decided that Mrs. Hartje was not - •guilty of the incriminating charges made by libelant against her: Collins v. Collins, 29 Ga. 517; Harding v. Harding, 180 Ill. 481 (54 N.E. Repr. 587).
    Where the husband is wealthy and has a large income, the wife is entitled, as shown by the case, to a liberal allowance. Especially is this true after the court has decided that she was not the guilty party: Kettlewell v. Kettlewell, L. R. (1898), P. D. 138; Cooper v. Cooper, 185 Ill. 163 (56 N. E. Repr. 1059); Moore v. Moore, 130 N. C. 333 (41 S. E. Repr. 943); Harding v. Harding, 144 Ill. 558 (32 N. E. Repr. 206).
    The court may also direct the payment of expenses, or suit money as it is sometimes called, at any time during the pend--ency of the proceeding; and it is immaterial that the application is -not made until after the expenses are incurred: Griffin v. Griffin, 47 N. Y. 134; Borckman’s App., 2 Walker, 285; Fernald v. Fernald, 5 Pa. Superior Ct. 629; Rieder v. Rieder, 21 Pa. Superior Ct. 488; King v. King, 36 Pa. Superior Ct. 33; Russell v. Russell, 69 Me. 336.
   Opinion by

Oblady, J.,

This appeal is from an order made June 17, 1907, refusing libelant's request for the appointment of an examiner to take testimony of witnesses, and a further order making absolute a rule at the instance of the respondent for allowance of counsel fees and expenses incurred in defending this proceeding.

The parties were married March 15, 1894, and lived together about eleven years, during which time four children were born, two of whom died when four or five years of age, and at the inception of this proceeding there was living a son, twelve years of age, and a daughter aged seven. The family lived in a prominent residential section of the city of Pittsburg.

The libel filed October 19, 1905, charged that the respondent, in violation of her marriage vows, for a considerable time past had given herself up to adulterous practices, and on date given and at divers times before and after, had committed adultery with a person named and divers other persons. The respondent filed her answer six days later, positively denying every charge made or suggested in the libel. The libelant secured the services of three eminent attorneys of the Allegheny county bar, and in addition his brother and a brother-in-law, who were attorneys, actively aided in the procurement of testimony. The case was vigorously prosecuted and defended. It was specifically charged by the husband that Mrs. Hartje had committed adultery with a stable man, and a negro house servant, and by a supplemental bill she was charged with making and keeping appointments at the Hotel Lincoln, regularly, during the years 1903 and 1904, and at a public house on Watson street in the city of Pittsburg, no co-respondent being named in the latter charges, and further with communicating to the libelant a loathsome venereal disease. At the instance of the respondent the court granted a rule on the libelant for a bill of particulars as to the names and places where it was alleged she had been implicated. Libelant refused to give ,the names of the alleged co-respondents involved in the Hotel Lincoln and Watson street charges and abandoned these grave charges against his wife. The trial of the case began June 25 and continued until August 6, and presents a record of 2,000 pages of printed matter furnished by ninety-four witnesses, and a large number of exhibits, a number of which were, the subject of earnest investigation as alleged forgeries. The trial resulted in a decree of divorce being refused, and the proceed- ' ings were dismissed at the cost of the libelant. The record was then removed to this court on appeal (35 Pa. Superior Ct. 14) in which the assignments were all overruled and the appeal dismissed at the cost of the appellant. After the argument of the cause in this court, a petition was presented on behalf of the libelant praying this court to assume original jurisdiction in the matter, and take such steps and make such orders for the taking of additional testimony in support of the petition as might be deemed necessary. After a full hearing the prayers of the several petitions for suspending the hearing of the case for the purpose of taking additional testimony were denied. An application was made to the Supreme Court for the allowance of an appeal, and this was refused. This conclusion must be accepted as a finding that the husband’s charges are not sustained.

The deposition of a negro stable servant, Clifford Hooe, was procured by the libelant, in which acts of adultery were alleged with Mrs. Hartje. Immediately thereafter, the negro servant fled the state, but he was followed by detectives in the employ of the respondent, and subsequently apprehended and brought back to Pittsburg, convicted of perjury on his own confession with additional proof, and sentenced to six years in the penitentiary. Another witness, William B. DeCost, an accomplice of Hooe, was indicted and convicted of perjury in testifying that the respondent had met Hooe at DeCost’s store for improper purposes. On an appeal to this court that judgment was affirmed, from which decision the Supreme Court refused an appeal.

A principal witness in the case was one Thomas Madine, a stable and house servant, with whom it was originally alleged the respondent had committed adultery. On the trial this witness was subjected to a severe cross-examination by the libel-ant and he testified unequivocally that no improper relations had ever existed between him and the respondent. Subseqfiently, when the case was before this court for rehearing, an incriminating affidavit was secured from Madine by the libel-ant which affected the character of the respondent. It was . alleged by the respondent that $10,000 had been-paid to Madine by the libelant as a consideration for this testimony. • The petition, answer and affidavits were made a part of-the respondent’s petition, but are not printed by the appellant. In the answer filed by the libelant in regard to this allegation he ■ admitted that “ rather than miss the opportunity to get’ said - letters into his possession he did pay the said Madine some money therefor; the amount of which he is prepared to state if it becomes necessary; but for the present he neither admits nor denies the amount as alleged in the petition.”

On the hearing in the rule in the present case the respondent averred that she had no estate whatever of her own and no in-' come whatever from any source. That the -libelant has con-, tributed nothing'whatever since July 23, 1905, the date of the - separation, towards the support of her and her two children, and that she has been wholly dependent upon her father for means to support herself and the two children aforesaid, and avers, “Your petitioner is informed, and believes and avers that the said libelant Augustus Hartje, is worth at least the sum of $1,500,000, and that he has an income therefrom in ex- - cess of $75,000 per year.” To which in his answer filed the.libelant replied as follows: “Respondent denies that the alleged information of the petitioner as to what this-respondent -' is worth, and what his income is, is correct; whenever-the ■ court will require information as to these matters the respond-, ent will be ready and willing to furnish it.” This is not a denial . of the averment that he was worth the amount named, and must-be treated as evasive and not responsive. The amount of his - estate and its income were important facts in determining the question before the court, and his refusal frankly to inform the court of that fact, is certainly not a circumstance favorable to. him.

The common law as well as the decisions of our own courts require a husband who wages such an assault on his wife to sup-. ply all necessary and reasonable expenses to withstand it, if he ■ is of sufficient financial-ability. Such a strenuous attack on the virtue of a wife and mother must be met either by abject sur-. render on her part, or she must defend her honor and maintain the fair name of her children by every means known to the law, and the allowance should be as generous as her? necessity requires. She employed zealous and capable counsel to represent her, and only after the conclusion of the proceeding, for divorce in the Supreme Court, did she present this petition for an allowance for counsel fees, expenses, and for alimony pendente lite. In this petition she avers that on account of the false charges made by the husband,, and the wicked course pursued by him in bribing and suborning witnesses, she constantly required the advice of counsel; and that they were actively engaged in connection with the case since October, 1905, is shown by the record of the court. With her petition she submits a statement of her expenses aggregating $29,512.07; and avers that all the expenses were incurred and all .services were employed and rendered under the advice of her counsel as being necessary to secure evidence and witnesses to defend herself-properly in the suit pending, and in no other case, and that she had to maintain her two-children, who were in her custody by virtue of an order of the same court made in habeas corpus proceeding; she accompanied her affidavit with one made by the director of the detective agency which was employed, setting out that in all forty-four different operators of ■ the agency, not including operators in other cities, had been at work on the case, as shown by the statement attached, and that the investigation required communication with and travel into a number of states adjoining Pennsylvania, and further that all the expenses were necessarily incurred in examining witnesses and furnishing proof from many remote places. Exceptions were filed by the libelant alleging that the expenses were incurred by her unlawfully, unreasonably and unnecessarily, but it is not specified in what particular this defect existed. After an examination of her bill of items we are not disposed to • weigh any particular one in the scales of technical nicety, as required in accounts of ordinary trade and barter. Doubtless some of the services rendered by the detectives did not result in ■ special or direct advantage, and in her search for corroborative proof of her innocence, or of the guilt of her husband and the ■ parties he selected as his aids to supply the necessary facts to secure his divorce she may have been misled, and some expenses incurred that afterwards were determined to be of no practical advantage, but such is the experience of all who are obliged to make a like investigation. Every feature of her defense in this case was conducted by able attorneys, who directed what should be done in each instance, and it is to be presumed that they had good professional reasons for their preparation of her case. The libelant is not clear in his challenge of the items of the bill, and the general statement is evasive and indefinite.

To judge of the propriety of this order, which is largely dependent upon judicial discretion, we should at least have before us the whole record of the case, as it was before the court below when the order was made. In disposing of the case the court had before him all that had preceded this rule, from the filing of the libel, through all the pleadings, the tedious and complicated trial of the case up to the final decree, and was personally familiar with all the facts as they were developed, and in assuming judicial knowledge of the facts thus learned through the hearings in the same case and in taking judicial cognizance of what he himself had done as judge, as well as of the testimony adduced before him in the trial, the court acted clearly within the authority fixed by decisions: 16 Cyc. 851. He regarded the statement of expenditures filed by the respondent as merely advisory, and treated it only as information to be considered with other matters of which he had knowledge. The payment of the items was not denied. Mrs. Hartje testified that she did pay them in full.

The only assignment urged is that they were unnecessary and unlawful. In the light of all the facts of the case, and having a due regard for the libelant’s ability to pay, the order was made directing him to pay to the respondent “ for counsel fees the sum of $7,000; and for support to January 1, 1908, and on account of expenses incurred by her in her defense, including services of writing experts and detectives, procuring the attendance of witnesses from beyond the jurisdiction of the court, cost of paper-books, and incidental expenses, the further sum of $26,750.” Taking into consideration the estate of the libelant, the character of the charges made and his failure to sustain them, the perjury and subornation involved in the case, the gravity of the charge, and the respondent’s financial inability to make her defense, the aggregate of these two items, $33,750, is not to be considered an unreasonable amount which the losing party should pay, and not having the record before us on which the decree was founded, we cannot convict the court of an abuse of discretion.

It was stated in Graves v. Cole, 19 Pa. 171, when a wife has no separate support she must be subsisted and her necessary costs paid, pending proceedings for divorce. This rule is necessary; otherwise she might be denied justice for want of the funds required for vindication of her rights, and for this reason, if necessary, she may in general have her costs taxed de die in diem. In Breinig v. Breinig, 26 Pa. 161, the court says: It is argued that the court ought not to have allowed the respondent so much alimony, nor nothing at all for her expenses. If there was error in this, we have no authority to correct it. There is nothing on this record by which we could know whether the alimony was too much or too little. We are bound, for this reason, if for no other, to presume that the judge who had all the facts before him, decided the matter rightly. It has been the uniform practice to allow a wife, destitute of a separate estate, who is either suing or defending a case of divorce, such a reasonable sum as will enable her to carry it on. She cannot sue in forma pauperis, for she is not a pauper if she is the wife of a man who has property. To deny her the means to pay for processed professional aid is to deny her justice. The amount is a question for the discretion of the court.

In Waldron v. Waldron, 55 Pa. 231, the Supreme Court says: It is undoubtedly the duty of the court to make a proper allowance to the wife if she be not herself of sufficient ability to enable her to maintain or defend her suit, having regard to the ability of her husband, and it never fails to do so, but this is entirely within the discretion of the court, both as to amount and duration, and not subject to review. And again in Powers’s Appeal, 120 Pa. 320, after quoting from Breinig v. Breinig, it was held that it has been the uniform practice to allow a wife destitute of a separate estate, who is either suing or defending a case of divorce, such a reasonable sum as will enable her to carry it on, the court says: “The libellant here is the husband, who is the owner of lands, farms, mills and houses, and is engaged in business. He forced this litigation upon his wife and she is compelled to employ counsel and incur large expense in defending herself. To deny her the means of a defense is to deny her justice. The refusal of the court below to make any allowance for her counsel fees and expenses was such a palpable abuse of discretion that we will correct it here.”

In Fernald v. Fernald, 5 Pa. Superior Ct. 629, where the court below made absolute a rule for payment of $125 for traveling expenses and the like, and refused an order to the respondent to submit to cross-examination by the libelant, for the purpose of showing what her assets, etc., were, this court stated, “Want of sufficient ability to pay does not imply absolute destitution and dependence upon the charity of others for support. The appellate court will not reverse except for plain abuse of discretion.” And in Jones v. Jones, 37 Pa. Superior Ct. 442, we held, even if it be conceded that the appeal arises from an interlocutory order of this nature, it is clear that the appellate court will not reverse except for plain abuse of discretion, and that nothing approaching that appears in this case. Her counsel decided that it was vitally important for her to employ eminent handwriting experts in order to disclose the forgery of her alleged letters, and of detectives and special agents to expose the perjury of important witnesses for the libelant. Had the learned judge below arranged the distribution of the aggregate sum in any other manner, we should accept his conclusion as representing his judicial discretion after a full investigation and knowledge of all the facts of the case; and to reverse his order we should at least have like information and be convinced that his discretion was wrongly exercised.

The selected counsel of the respondent are gentlemen of high professional character, and it is evident that all the investigations that were made and all expenses that were incurred were subject to their supervision, and the payment of the bills was made only under their professional scrutiny. Added to this was the trial judge’s approval of the expediency of such engagements and payments.

To grant a rule as prayed for, or to take further testimony would be practically to open up the whole proceeding and retry many of its phases. It is urged, and not without a show of reason, that the principal purpose to be served by such an investigation would be, if possible, to secure evidence to be used on behalf of the libelant in his defense to a pending action of divorce which was brought against him by the present respondent. The court below was much more familiar with the facts than this court can be owing to lack of the record as above suggested, and we do not find, from our examination of the case, that there was any abuse of discretion.

The assignments of error are overruled. The decree is affirmed.

Rice, P. J.,

dissenting:

While the learned judge of the common pleas had acquired ample information in the trial of the principal case to enable him to determine that the respondent was justified in employing detectives, yet it seems to me that upon the question of the amount alleged to have been expended by her and as to the purposes for which detectives were employed it was incumbent on her to produce some evidence in addition to her ex parte affidavit and the affidavit of the chief of detectives. I am therefore unable to concur with my brethren in affirming that part of the decree relative to the sums paid for detective service.

Porter, J., concurs in foregoing.


text:
    Keystone Coal & Coke Company v. Pickands-Magee Company, Appellant.
    July 14, 1909:

      Contract — Sale—Evidence.
    In an action to recover the price of coke, where the defendant sets up that the coke delivered was not the same as that represented on the sale, and there is a great conflict of evidence as to the name, grade and value of the respective kinds of coke mentioned by the witnesses, the case is for the jury to determine which kind of coke was actually delivered, and whether it was the kind contemplated by the parties to the contract.
    Argued April 14, 1909.
    Appeal, No. 15, April T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 89, on verdict for plaintiff in case of Keystone Coal & Coke Company v. Pickands-Magee Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for balance of purchase money. Before Swearingen, P. J.
    The opinion of the Superior Court states the facts.
    Verdict and judgment for plaintiff for $1,481.67. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      H. K. Siebeneck, with him Warren T. Seymour and H. H. Patterson, for appellant. —
    The party who voluntarily makes a contract must perform its essential terms before he can recover: Harris v. Sharples, 202 Pa. 243; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Dauchey v. Drake, 85 N. Y. 407; Sheffield v. Balmer, 1 Mo. App. 176; McDonald v. Gardner, 56 Wis. 35; Lowry v. Cooper, 21 Ind. 269; Guillou v. Toudy, 5 W. N. C. 528.

      David E. Mitchell, with him William A. Griffith, for appellee.
   Opinion by

Orlady, J.,

The plaintiff brought suit for the balance of the contract price of twenty-five cars of coke sold to the defendant, and credited the defendant with the amount received from a resale of a portion of the coke, less an extra freight charge. The defendant admitted the purchase of the coke, and nonpayment of a part of the price, but sets up that the coke delivered was not the same as that represented on the sale.

The coke involved in this controversy was sold to a broker, who in turn sold it to a ^manufacturing company. By the direction of the defendant, the coke was shipped direct from the plaintiff’s ovens to the steel and iron company. Nine car loads were accepted and paid for, and the remaining sixteen were rejected. There was great conflict in the testimony with reference to the name, grade and value of the respective kinds of coke mentioned by the witnesses. It appears that seventy-two hour coke is generally known as foundry coke; forty-eight hour coke is generally known as furnace coke, and a third grade is known as stock coke. The order or purchase memorandum called for “Brand Latrobe, forty-eight hour furnace coke, to be shipped from Salem plant, to be made from washed coal.” The shipping clerk of the plaintiff testified that he shipped furnace coke, and that it was up to the standard of what they were producing and shipping at that time. And that in loading it they exercised care in eliminating objectionable coke, so that it was all fresh with the exception of what may have been in the yard for a day or two when they were short of cars.

The defendant’s point, “Under all the evidence, the verdict must be for the defendant, ” was properly refused. The defendant’s first point, “The burden of proof is on the plaintiff; it must make out its case by the weight of testimony,” was answered thus, “As a whole this point is refused.” This point and answer standing alone would be quite confusing and might justify a reversal, but taken in connection with the charge of the court which immediately preceded it was harmless, and a proper declaration of the law was given to the jury as follows: “If you find that the contract between these parties was as stated by the plaintiff, that is to say, the plaintiff sold this coke without any representations as to whether it was furnace coke, or the amount of sulphur it contained and shipped the coke just as it was there, then you will find a verdict for the plaintiff, but if you are not satisfied that this contract was made as detailed by the plaintiff, it is your duty to find a verdict for the defendant. You will recollect that the plaintiff here has brought this suit alleging that money is due it by the defendant, therefore the burden of proof of the contract rests upon the plaintiff, and the plaintiff must establish the contract by the weight of the evidence.” And concluded the charge as follows: “Due weight must be given to each word of the purchase memorandum, that is, exhibit No. 1, which has been read in your hearing. It calls for forty-eight hour furnace coke, not simply forty-eight hour coke. The word 'furnace' must mean something. It must have some signifiance,” as he was specially requested to do by the defendant.

The assignments of error are overruled. The judgment for the plaintiff is affirmed.


text:
    Commonwealth v. Nowyokot, Appellant.

      Election law — Falsifying returns — Evidence—Charge.
    1. A conviction of falsifying election returns will not be set aside because the trial judge stated that the jury could consider the Act of April 16, 1903, P. L. 217, providing for a return of the election papers within three days, inasmuch as such act has nothing to do with the crime charged in the indictment.

      Practice, C. P. — Trial—Remarles of counsel.

      2. Where objection and exception is taken to alleged objectionable remarks of counsel, and the party objecting is given the opportunity to withdraw a juror and continue the case, but refuses to do so, but goes to trial on the merits, he waives his objection to the alleged improper remarks.
    Argued April 19, 1909.
    Appeal, No. 6, March T., 1910, by defendant, from judgment of Q. S. Lackawanna Co., Dec. T., 1908, No. 213, on verdict of guilty in case of Commonwealth v. George Nowyokot.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.

      Indictment for violating election law. Before Heydt, J.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were as follows:
    1. The learned trial judge erred in charging the jury as follows :
    “The question has been argued before you as to when it was the duty of the judge of election to bring the returns into the office of the prothonotary. I say to you as a matter of law, that it was the duty of this defendant to bring the returns to the county seat and file them in the office of the prothonotary of the court of common pleas upon the day following the election, before 2 o’clock p. m. To be entirely fair, though, I want to say to you that the act of assembly of April 16, 1903, which was read to you by Mr. Taylor, in which it is provided that the return judge shall have three days’ time to return them is found on the statute books. It is not necessary for me to explain to you why I think that is not the law. If there was any evidence that this defendant had been misled or misguided by the act of assembly, then that would probably be a good defense in a criminal prosecution for violating the election laws, but you will take that fact in connection with all the other facts into consideration.”
    2. The learned trial judge erred in refusing to grant a new trial for the improper remarks of the district attorney in the presence of the jury in closing the case as follows:
    “If a note was given by a man to another for $136 was shown to have been altered,- and there was no explanation as to the alteration, that it could be used as a presumption against him.”
    3. The remarks of the district attorney in the presence of the jury in closing the case as follows:
    “ If a note given by a man to another for $136 was shown to have been altered, and there was-no explanation as to the alteration that it could be used as a presumption against him,” were a violation of the Act of May 23, 1887, P. L. 158, sec. 10.

      A. A. Vosburg and Frank P. Benjamin, for appellant,
    cited as to the remarks of counsel: Com. v. Foley, 24 Pa. Superior Ct. 414; Com. v. Brown, 16 W. N. C. 557; Com. v. Bell, 20 Pa. C. C. Rep. 223; Com. v. Bruner, 11 Pa. C. C. Rep. 428; Com. v. Holtham, 5 Pa. Dist. Rep. 24.
    July 14,1909:

      Joseph O’Brien, district attorney,
    cited, as to the remarks of counsel: Com. v. Furman, 22 Lanc. Law Rev. 225; Com. v. Elder, 34 Legal Int. 400; Sutton v. Com., 85 Va. 128; Frazier v. The State, 135 Ind. 38; Jones v. Cleveland, 8 Kulp, 461; Moll v. Zimmerman, 1 Woodward’s Decisions, 501; Com. v. Draper, 2 Chester County Repr. 424; Com. v. Clark, 7 Lack. L. N. 307; Com. v. Windish, 176 Pa. 167; Com. v. Greason, 204 Pa. 64; Com. v. Twitchell, 1 Brews. 551; Com. v. Hanlon, 3 Brews. 461.
   Opinion by

Orlady, J.,

The defendant was a judge of election, and as such was intrusted with and had in his custody for safe-keeping and delivery to the prothonotary of the court of common pleas of Lackawanna county, the triplicate election returns, tally papers and other returns and papers used in counting the votes cast at an election held on November 3, 1908. He was charged with unlawfully defacing, altering and changing a certain tally paper of the said district, by adding after the name of Morgan Thomas, a candidate for the office of county commissioner, fifty-three tallies, thereby changing the said tally paper so that it appeared that Morgan Thomas, candidate, had received 136 votes for the office of county commissioner instead of eighty-three, which were actually received.

At the conclusion of the commonwealth’s case the first and second counts of the indictment were withdrawn from the consideration of the jury. The defendant was convicted, and on his appeal to this court he urges that the trial judge erred in charging the jury as follows: “The question has been argued before you as to when it was the duty of the judge of election to bring the returns into the office of the prothonotary. I say to you, as a matter of law, that it was the duty of this defendant to bring the returns to the county seat and file them in the office of the prothonotary of the court of common pleas, upon the day following the election before two o’clock p. m. To be entirely fair, though I want to say to you that the act of assembly of April 16,1903, which was read to you by Mr. Taylor, in which it is provided that the return judge shall have three days’ time to return them, is found on the statute books. It is not necessary for me to explain to you why I think that is not the law. If there was any evidence that this defendant had been misled or misguided by this act of assembly, then that would probably be a good defense in a criminal prosecution for violating the election laws; but you will take that fact in connection with all the other facts into consideration.”

The foregoing is an excerpt from the charge and does not fully represent the whole thought expressed to the jury. Moreover, the act of 1903 was not involved in the case, and was improperly interjected into the trial by the defendant’s counsel. It had nothing to do with the issue under the indictment, and the evidence clearly shows that this defendant had’in his possession tally papers which had been mutilated or forged, without any explanation being given. The trial judge went farther than was necessary, in adding that they could take the requirements of the act of 1903 into consideration, and if the defendant had been misled or misguided by that act of assembly, it would be a good defense in that prosecution.

The only other assignment of error relates to remarks made by the district attorney in the presence of the jury in the close of his argument, which are admitted to be as follows: “If a note was given by a man to another for 1136 and it was shown to have been altered, and there was no explanation as to the alteration, that could be used as a presumption against him.” There was no reference to the fact that the defendant did not go upon the witness stand in his own defense, and no comment was made of his failure so to do. The attention of the court was promptly called to the remarks of counsel and an exception was taken. The court asked the defendant’s counsel if he desired to have a juror withdrawn and the case continued, when counsel replied that they did not have to ask for that, as they understood it, and elected to stand on the exception alone.

It was developed on the trial by the commonwealth's testimony that the return or tally paper was altered so as to change the figures 83 to 136, and this was the crux of the case so far as the defendant was concerned, and that phase of it was fully and fairly submitted to the jury, the court stating as follows: “ You will take into consideration what the condition of these papers was when they were handed to George Nowyokot; where the papers were kept; in what condition they were when they were opened; the condition of the sealed envelopes with the seal on; and all the papers themselves; whether there are any erasures on them and any changes, and you will consider all the facts in the case and then decide whether this defendant altered or defaced or changed any of these election papers.” The defendant made his motion for a new trial. The questions involved, presented for review here, were fully heard and the motion was refused.

The attention of counsel was called to the propriety of asking • for the withdrawal of a juror, which suggestion was declined. They elected to go to the jury on the main facts of the case, and on the record as they have made it. They come within the rule laid down in Commonwealth v. Weber, 167 Pa. 153, viz.: There is no distinction between admission of improper evidence and improper argument. It is the duty of counsel to aid the court, by their learning and fidelity, in the administration of justice; any other rule of duty would probably lead to very undesirable results; because, without it, the most effective defense that astute counsel could make for criminals with a hopeless case on the evidence, would be, by silence, in order to invite errors of omission and commission by the court and opposing counsel, with the object of securing reversals on review; and thus by persistent, expensive and vexatious appeals, wear out the prosecution.

The proper practice is a motion for the withdrawal of a juror and continuance of the cause: Com. v. Windish, 167 Pa. 164; Com. v. Greason, 204 Pa. 64, and a number of other cases.

The words of the district attorney were doubtless forcible and illustrative, and brought quite keenly to the minds of the jury the facts in the case, but they were not more than this, and taken in connection with the charge of the court, they tended to invite a more careful scrutiny by the jury of the evidence adduced by the commonwealth.

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


author: Orlady J.,

text:
    Cottom v. Wiley, Appellant.

      Evidence — Writings—Copies—Notice to produce originals.

    It is reversible error for a trial judge to admit in evidence typewritten copies of papers, the originals of which are in the hands of the opposite party, without proof that such party had been served with notice to produce the originals.
    Argued April 20, 1909.
    Appeal, No. 28, April T., 1909, by defendant, from judgment of C. P. Fayette Co., June T., 1907, No. 221, on verdict for plaintiff in case of A. W. Cottom v. J. W. Wiley.
    Before Rice, P. J., Porter, Henderson, Morrison, Ordady and Head, JJ.
    Reversed.
    Assumpsit for services. Before Van Swearingen, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $1,169.58. Defendant appealed.

      Error assigned was in admitting the papers referred to in the opinion of the Superior Court.

      W. J. Sturgis, of Howell, Sturgis & Morrow, for appellant. — •
    It is elementary that the probata must sustain the allegata, and of course one who avers performance and fails to prove it has no right to recover: Hunn v. Penn. Inst. for the Blind, 221 Pa. 403; Diehl v. McGlue, 2 Rawle, 337; Shaw v. Fleming, 174 Pa. 52; Wikinson Mfg. Co. v. Welde, 196 Pa. 508.
    To admit the papers in evidence was clear error: Patton v. Craig, 7 S. & R. 116; Eilbert v. Finkbeiner, 68 Pa. 243; Car-land v. Cunningham, 37 Pa. 228; Bank v. Graham, 79 Pa. 106; Simpson v. Irvin, 5 Pa. Superior Ct. 471.
    July 14, 1909:

      D. W. McDonald, with him II. A. Cottom and James R. Cray, for appellee. —
    The admission of letters and a telegram from Scott and Blair to Lackey and copies of letters from Lackey to Scott and Blair, was proper: Haughey v. Strickler, 2 W. & S. 411; Thompson v. McKelvey, 13 S. & R. 126; Wirebach v. Bank, 97 Pa. 543; Brown v. Com., 76 Pa. 319; Pratt v. Richards Jewelry Co., 69 Pa. 53; Ralph v. Brown, 3 W. & S. 395; Rhodes v. Seibert, 2 Pa. 18; Otto v. Trump, 115 Pa. 425.
   Opinion by

Orlady J.,

The plaintiff brought this action of assumpsit to recover $867, with interest thereon, for services in procuring an option on coal lands, at the rate of fifty cents per acre. The defendant denied that he had ever requested the plaintiff to procure an option on the land, or that he had agreed to pay him any sum of money whatever. The trial resulted in a verdict in favor of the plaintiff for $1,169.58.

It is apparent that certain papers which were offered by the plaintiff and admitted in evidence, over the defendant’s objection, contributed materially to the conclusion reached by the jury. They are designated as exhibits 2, 4, 5, 6 and 7. The plaintiff admitted of record that these were copies transcribed from stenographic notes, dictated by one F. S. Lackey, on or about the dates mentioned therein. The subject-matter contained in the papers was very important from the plaintiff’s presentation of the case. They were objected to as incompetent and irrelevant, and a further objection was suggested in the words, “and no foundation laid.” This part of the objection is disputed by the plaintiff, and it is not necessary to solve the controversy between counsel as to whether it is properly on the record or not. The papers offered were typewritten copies made by the stenographer, and were received in evidence without any proof that they had'been transmitted by mail, or any other service to the defendant, or that any notice had been served on him to produce the originals. This action of the court is covered by separate assignments of error, and is fatal to this verdict.

It is against principle to admit a copy of any private paper without accounting for the nonproduction of the original; a copy, in its nature, is less satisfactory evidence than the original, and when the original is in the hands of an adverse party, notice should be given to him to produce it: Patton v. Ash, 7 S.&R. 116.

In Carland v. Cunningham, 37 Pa. 228, it was stated, “It is a rule of evidence, too ancient and too well understood to require proof of its existence that the original instrument is better evidence than a copy, and that the primary source of information is better than secondary. The latter is only resorted to after the necessity for so doing is shown to exist in an inability to produce the former. If the original instrument be •lost or destroyed, this is sufficient ground for secondary evidence. So if it be shown to be in the hands of the opposite party who refuses to produce it on notice. But a preliminary step to receiving proof of the contents, after proof of existence, is proof of notice to produce it. This is indispensable to the admission of secondary evidence. Inconvenience or absence from the state is not an excuse for omitting this notice. The exception would be where the party himself could not be found after diligent inquiry. Then, the law would treat the instrument as lost. .Other exceptions are where the action is brought for the instrument itself; when proof of notice is not necessary.”

And in Eilbert v. Finkbeiner, 68 Pa. 243, it was held that, where the plaintiff offered in evidence a copy of a letter which the court excluded and his ruling thereon was assigned for error, the Supreme Court held, “The plaintiff could not give evidence of the contents of a letter mailed by him to the defendant without having first given him notice to produce it.”

As the case stood at the time the offers were made, the objection should have been sustained, and for this reason the judgment is reversed,, the record is remitted to the court below and a venire facias de novo awarded.


text:
    Commonwealth v. Hecirrionic, Appellant.

      Liquor law — Selling without license.

      1. Where a person takes orders for liquor from different parties, and then orders liquor from a wholesale dealer in another county, and directs that it shall be sent to a particular address in separate parcels with a name and address on each parcel, and thereafter he pays for the liquor out of his own funds, personally distributes the packages to the different purchasers indicated by the names on the labels, and receives the price from such persons, he may be convicted of selling liquor without a license.
    2. In such a case the defendant is neither an agent for the wholesale dealer, nor for the purchasers, and the sale is complete in the county where the packages are delivered.

      Practice, C. P. — Trial—Charge.
    3. If a trial judge makes a statement to the jury alleged to be incorrect, counsel should call the attention of the judge to the mistake at once. He cannot sit silent and take his chances of a verdict, and then if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless.
    Argued April 23, 1909.
    Appeal, No. 169, April T., 1909, by defendant, from judgment of Q. S. Washington Co., Feb. T., 1909, No. 1, on verdict of guilty in case of Commonwealth v. George Hecirrionic.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Indictment for selling liquor without a license. Before Mc-Ilvaine, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were answer to defendant’s point, quoted in the opinion of the Superior Court, and in passing sentence on the verdict.

      Owen C. Underwood, with him R. H. Meloy, for appellant.

      C. L. V. Acheson, district attorney, with him T. H. W. Fergus, assistant district attorney, for appellee,

      July 14, 1909:
   Opinion by

Orlady, J.,

The defendant was charged with selling liquor without a license, and was found guilty as indicted. Under the uncontradicted evidence in the case, any other verdict would have been miscarriage of justice. It clearly appeared that the defendant solicited and received orders for whisky and other liquors at Marianna, a small mining hamlet in ^Washington county, with the understanding that he was to be paid for the liquor when it was delivered. He gave an order for the liquor to a wholesale dealer in Pittsburg in person, without disclosing the names of the parties for whom the liquor was to be consigned, further than that he directed, that a number of packages should be shipped to one Jakoojevic, a boarding house keeper at Marianna, with a name label on each package, and he then paid for all of the liquor out of his own funds.

When the car arrived at Marianna, he, along with the named consignee, proceeded to the car, and the defendant then opened the package containing the parcels, delivered some of the articles to the different parties, and directed that the remainder be sent to the boarding house, where some of the persons named on the labels temporarily resided. The balance was there distributed by him. Subsequently payment was made to the defendant for all of the liquor. So far as the sale by the defendant was concerned, it was completed in all details at Marianna. None of the parties to whom he delivered the liquor knew from whom he was to purchase it, or where the liquor was to come from. The device of marking the several packages with the names of the persons to whom he intended to deliver them, while the assembled packages were continuously under his control, did not change the real character of the transaction.

The whole question was fairly and fully left to the jury. The trial judge saying, “The first thing that you have to find in this case, in order to convict, is that there was a sale of liquor by this defendant in this county. Did he, under an agreement with anybody, furnish liquor to them for a consideration? Did liquor pass from him to them, and did the pay for the liquor pass from them to him under a contract which had been made between them? ”

The defendant’s only request for instruction was as follows: “If the jury believe no liquor was delivered by the defendant in this county, and that no liquor was shipped into this county in such a way, or by such an arrangement as to be in the control of the defendant after its arrival within the county their verdict should be not guilty.” Which was affirmed, subject to what the trial judge had stated in his charge on the question of delivery and shipment of liquor by a wholesaler, who is doing business in another county. In the body of the charge the trial judge fully and fairly complied with the requirements of our decisions, and in answer to the point submitted the question of fact to the jury in proper'form. The point, as submitted, assumed that there was conflicting evidence in regard to the questions involved, whereas every witness who had direct knowledge of the facts, testified unequivocally as to the giving of the order, the delivery of the whisky and payment to the defendant; nor was the court in error in saying that the presumption of the law is that the burden is thrown on the defendant to show that he had a license granted in the manner that is indicated by the act of assembly.

Commonwealth v. Holstine, 132 Pa. 357; Com. v. Wenzel, 24 Pa. Superior Ct. 467; Com. v. Clymer, 30 Pa. Superior Ct. 61, s. c., 217 Pa. 302, fully sustain the doctrine, that there could be no impropriety nor hardship in requiring the defendant to show by what authority he made sales of intoxicating drink, which is prohibited by law, except by being privileged under the acts to make such sales, and it was not incumbent upon the commonwealth in the first instance to prove that the defendant had no license.

Our province is not to look for errors merely in order to reverse, but to look for merits in the cause of reversal; and when we find the court below has done no more than it could rightly do, and when that which is done infringes no right or substantial interest of the prisoner, we ought not to send back for á retrial a cause fully, fairly and' justly determined: Brown v. Com., 78 Pa. 122. The alleged misstatement of fact by the trial judge is not material, and could not have had any influence with the jury. To have dealt fairly with that phase of the case, the attention of the trial judge should have been called to it, and the misstatement, if any, could have been corrected at that time. A party may not sit silent and take his chances of a verdict, and then, if it is adverse, complain of a matter, which, if an error, would have been immediately rectified and made harmless: Com. v. Razmus, 210 Pa. 609; Pennsylvania R. R. Co. v. Donora Southern R. R. Co., 219 Pa. 361.

This defendant was not an agent for the wholesaler, and he acted exclusively for the parties with whom he was identified at Marianna. In such a case the sale is regarded as made where the order is taken and the liquor delivered, and it is immaterial that the packages were labeled by the dealer with the names of the purchasers: Com. v. Guja, 28 Pa. Superior Ct. 58; Com. v. Poliak, 33 Pa. Superior Ct. 600; Com. v. Tynnauer, 33 Pa. Superior Ct. 604.

Nor was the defendant technically the agent for the persons to whom he finally delivered the liquor. All the parties were working together to further a common cause. The whole proceeding was a crude attempt to evade our license law, and as stated in Com. v. Holstein, “The devices to evade this law are so numerous and so adroit, and the consequence of its violation are so serious to the welfare and good order of the community generally, that we think it the duty of the courts to enforce the law rigidly. It is needed that all those who engage in this traffic in violation of law should know that the way of the transgressor is hard.”

The assignments of error are overruled and judgment is affirmed.