author: McIlvaine, P. J.,

text:
    Commonwealth v. Fridell.

      Criminal law — Forfeited recognizance — Right of injured parties to share in distribution — False representations — Act of July SO, 1842.

    Where a person indicted for obtaining money under false pretences has forfeited his recognizance, the parties injured by such false pretences are entitled to participate in the distribution of the fund represented by the recognizance under the Act of July 30, 1842, P. L. 449, 454, although the false representations may have been involved in a gambling arrangement in which such parties participated.
    Exceptions to auditor’s report. Q. S. Washington Co., Nov. Sess., 1920, No. 208.

      Howard W. Hughes, for exceptants; David M. McCloskey, contra.
    Sept. 27, 1921
   McIlvaine, P. J.,

On Sept. 20, 1920, Ernest E. Fridell, the above named defendant, was arrested on a warrant issued by R. J. Whitehead, justice of the peace, and brought before said justice for a hearing on a charge which had been made against him on the oath of one Martin C. Deitz, wherein it was alleged “that the above named defendant did then and there unlawfully by false pretence obtain money from affiant by representing that several suits of clothes were drawn by parties in Charleroi, which statement was false, with intent to cheat and defraud affiant out of money, all of which is contrary to an act of assembly in such cases made and provided.”

After hearing, the defendant was held in $1000 bail for court, and gave as his security for appearing at court a $1000 United States Liberty Bond, which was placed in the hands of the Clerk of the Court of Quarter Sessions. Afterwards, to wit, on May 20, 1921, the defendant having failed to appear after being duly called, his bond and recognizance was forfeited for his default and non-appearance, and the said $1000 United States Liberty Bond was sold and the money paid into said court for distribution. This court on July 5, 1921, appointed John I. Carson, Esq., to make distribution of the money in court, and on Aug. 22, 1921, he filed his report in court, to which report the County Commissioners of Washington County, through their solicitor, filed exceptions, claiming that all the money, except that which went to the payment of costs, should have been paid to the county treasurer^ and not to the claimants, to whom the auditor awarded the same, alleging that these claims were illegal and that they were lottery contracts, and that the claimants were not entitled to a distributive share of the fund in the hands of the clerk of court.

It appears that the Thomas Tailoring Company had been selling suits of clothing on what was known as a “purchasing contract,” some features of which it is claimed show the contract to be a prize or lottery contract, and it is the claim of the solicitor of the 'county commissioners that those who may have entered into contracts with this tailoring company are not entitled to recover back any money that they may have paid on their contracts for suits, for the reason that they ran the risk of getting or not getting their suits on the happening or the not happening of a certain contingency over which the party receiving the suit had no control. As we view this case as it is presented to us, the question of whether or not the Thomas Tailoring Company’s contract was a gambling contract is immaterial, for the reason that the defendant, Ernest E. Fridell, was indicted for obtaining money from a number of persons by false pretence, and that was by falsely representing to those persons that they had drawn suits from this tailoring company and, upon the payment of certain moneys to him, would receive the suits, which representation was untrue and false. This being the case, the money that these claimants appeared before the auditor to claim was not money that they had paid to the tailoring company on a gambling contract, but money that they had paid to the defendant on a false representation that he made in regard to the action of the tailoring company. We are, therefore, of the opinion that the exceptions are not well taken and that the auditor’s report should be confirmed.

The Act of Assembly passed on July 80, 1842, P. L. 454, gives any person who may have suffered loss or injury by the commission of a crime or misdemeanor the right to share in the distribution of money collected on a forfeited recognizance in such a case where the defendant fails to appear. In other word», in the case at bar, the defendant not appearing, the court takes the charge made in the indictment as true, and in place of sentencing the defendant to a fine and imprisonment and to restore the money which he falsely obtained from his victims, directs the money obtained on the forfeited recognizance to be paid to those who have suffered loss, after the costs of the magistrate, the costs of prosecution in the Court of Quarter Sessions and a reasonable allowance to those who have been instrumental in having the defendant arrested have been paid; and that was what the auditor did in this case. Section 26 of the act just cited clearly indicates the manner in which money paid into court on such a recognizance as was given in this case should be distributed.

And now, Sept. 27, 1921, exceptions to auditor’s report in this case came on to be heard and were argued by counsel, whereupon, upon due consideration, it is ordered, adjudged and decreed that said exceptions be overruled and the auditor’s report confirmed, and the clerk of court is directed to pay out the money in accordance with the schedule prepared by the auditor.

Prom Harry D. Hamilton, Washington, Pa.


source: Caselaw Access Project

author: Wickersham, J.,

license: Public Domain

text:
    Vanderloo v. Garverich.

      Judgments — Attachment execution — Satisfaction—Striking off.

    Satisfaction of a judgment, properly entered in good faith hy one to whom the judgment had heen assigned, will not he stricken off at the instance of an attaching creditor who, after notice of the assignment, did nothing to protect himself for a period of more than two years.
    Rule to strike off satisfaction. C. P. Dauphin Co., June T., 1918, No. 78.

      Fred C. Miller, for Bogar Lumber Company, attaching creditor, for rule.

      Robert Stucker, for defendant, contra.
    Dec. 27, 1921.
   Wickersham, J.,

Thomas H. Bogar presented his petition, reciting the entry of the above stated judgment, on March 28, 1918, its assignment on March 30, 1918, to E. F. Maugans; that he was the owner of a judgment for $339.46 against the plaintiff, P. Vanderloo, filed to No. 626, September Term, 1917; that on or about April 4, 1918, he issued an attachment execution to No. 149, June Term, 1918, attaching the proceeds of said note in the hands of F. H. Garverich; that on March 19, 1918, said judgment, entered to No. 78, June Term, 1918, was satisfied by the attorney for P. Van-derloo, the plaintiff; that the attorney knew that the proceeds of said note had been attached, and praying that a rule be granted upon F. H. Garverich, William A. Klitch and P. Vanderloo to show cause why the entry of satisfaction of the above stated judgment entered against the said F. H. Garverich should not be stricken off or vacated; whereupon the court granted a rule as prayed for, returnable in ten days.

To the rule so granted P. Vanderloo and F. H. Garverich filed an answer June 24,1921, setting forth that the satisfaction of said judgment was entirely legal and proper; that the assignment of said judgment to E. F. Maugans was made prior to the issuing of any attachment in said proceeding; that at the time satisfaction of said judgment was entered there was no indication on the record of the Court of Common Pleas of Dauphin County that any attachment had been issued; that satisfaction was made of said judgment by an attorney who had full and ample authority to enter said satisfaction; that the judgment note entered in said case was a note given by the respondent, F. H. Garverich, to P. Vanderloo, respondent; that said note was given for rent due and owing by the said F. H. Garverich; that the said note made payable to P. Vanderloo was made in mistake, and said note should have been made payable to P. Vanderloo as agent or trustee; that said P. Vanderloo was not entitled to the proceeds of said note; that one I. P. Bowman, attorney-at-law, was entitled to the proceeds thereof, and was the only party entitled to said proceeds of said note; and that, at the time said note was given, the said P. Vanderloo was acting as agent for the said I. P. Bowman.

William A. Klitch, the other respondent, filed an answer to the rule granted as aforesaid, setting forth that he purchased the property of F. H. Garverich, the defendant, March 18, 1919; that the purchase price of said land was paid to the defendant; that the attorney of record for the plaintiff was paid the amount of said judgment and costs, who then satisfied the judgment of record, and that the respondent, at the time of purchasing the said land and receiving the deeds therefor, had no knowledge that the money represented by said judgment had been attached by a creditor of the said plaintiff.

Testimony was taken in the case before R. S. Care, Esq., which has been filed of record.

In order that we may pass intelligently upon the issues raised by this record, it is necessary for us to recite the several docket entries which appear of record in the Court of Common Pleas of Dauphin County in the order in which they were filed, and from said docket entries and the oral testimony filed of record in this case, we find the following facts:

1. The judgment of P. Vanderloo v. F. H. Garverich was filed to No. 78, June Term, 1918, on March 28, 1918.

2. Said judgment was duly assigned by P. Vanderloo to E. F. Maugans, March 30,1918, which assignment was duly acknowledged the same day before Edward J. Hilton, alderman.

3. The Bogar Lumber Company held a judgment against the said plaintiff, P. Vanderloo, amounting to $339.26, which was filed to No. 129, June Term, 1918, and upon which an attachment in execution was issued April 4, 1918, directing the sheriff to levy the goods and chattels, debts, rights, credits and moneys of P. Vanderloo in the hands of F. H. Garverich; no record of this attachment was entered in the Court of Common Pleas upon the record of the judgment of P. Vanderloo v. F. H. Garverich, filed to No. 78, June Term, 1918.

4. F. H. Garverich, the garnishee in said writ of attachment, filed his answer April 22, 1918, setting forth, inter alia, that he was the defendant in the judgment entered to No. 78, June Term, 1918, and that he had been personally served with a notice by one E. F. Maugans that on March 30, 1918, the said judgment was sold, assigned and conveyed by the said P. Vanderloo to the said E. F. Maugans, and that, since March 30, 1918, the said E. F. Mau-gans was “the actual bona fide and legal owner and holder of said judgment,” and that the said E. F. Maugans demanded payment from the defendant of the principal debt of said note and interest on April 29, 1918.

5. On March 18, 1919, I. P. Bowman, Esq., appeared for P. Vanderloo, the plaintiff in the above stated judgment, and satisfied the same in full.

6. On May 25, 1921, two years after said judgment, No. 78, June Term, 1918, was satisfied, the above recited petition was presented by Thomas H. Bogar, praying that said satisfaction should be stricken from the record.

7. June 20, 1921, the answer to the rule was filed by William A. Kliteh, and June 24, 1921, the answer to said rule was filed by P. Vanderloo and F. H. Garverich.

8. It thus appears as a fact that, although the attachment in execution was issued by the Bogar Lumber Company April 4,1918, and said judgment entered to No. 78, June Term, 1918, was satisfied March 18, 1919, no further proceedings were taken on the attachment execution and no effort was made'to strike said satisfaction from the record until May 25, 1921, a period of more than two years after said satisfaction was entered, and more than three years after said proceedings in execution were commenced.

9. The proceeds of the judgment entered to No. 78, June Term, 1918, belonged to I. P. Bowman, Esq., the attorney who satisfied said judgment; P. Vanderloo, the plaintiff named in the judgment, was acting as agent or trustee for the said I. P. Bowman and was not entitled to the proceeds of said judgment.

10. The satisfaction of said judgment, No. 78, June Term, 1918, by I. P. Bowman, Esq., was justified by the facts as they appear upon the record in this case and by the testimony taken before the commissioner, R. S. Care, Esq.

It clearly appears from the record and the evidence taken in this case that P. Vanderloo accepted the judgment note in controversy from F. H. Garverich, the defendant named therein, as security for the payment of rent due and owing from the said F. H. Garverich to I. P. Bowman, Esq., for whom P. Van-derloo was acting. The answer filed by F. H. Garverich and P. Vanderloo fully, clearly and succinctly sets forth that P. Vanderloo was acting as agent or trustee for I. P. Bowman, and that the proceeds of the judgment belonged to I. P. Bowman and not to P. Vanderloo. The Bogar Lumber Company had notice that the judgment had passed from Vanderloo in June, 1918, after the proceedings in attachment execution had been commenced by that company, yet no steps were taken to bring the proceedings thus commenced to a termination. The company might better have protected itself by having notice of the attachment proceeding entered of record upon said judgment entered to No. 78, June Term, 1918. William A. Kliteh, who purchased the property March 18, 1919, had no notice of the attachment proceedings, and to now strike off the entry of satisfaction made in good faith would work a great hardship upon him. Had the Bogar Lumber Company seen to it that notice of the attachment was entered of record as part of the proceedings in the judgment against F. H. Garverich, filed to No. 78, June Term, 1918, the purchaser, William A. Kliteh, would then have had notice of the said proceeding and could have protected himself.

For the reasons above stated, the motion of the petitioner, praying that the satisfaction of said judgment should be stricken from the record, must be overruled, and the rule granted thereon ought to be, and is, therefore, discharged.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Bartlett, J.,

text:
    Snell v. Nickles.

      Statutory demurrer to set-off or counter-claim — Practice Act of May lb, 1915.

    1. Under section 15 of the Practice Act of May 14, 1915, P. L. 483, a set-off or counter-claim may be attacked by a reply raising a question of law.
    2. Defects in the form of a pleading may be attacked by a motion to strike off; defects in substance, by a statutory demurrer.
    3. A set-off or counter-claim in the nature of a tort setting up a fraud practiced upon the plaintiff is bad and will be stricken off.
    Statutory demurrer to counter-claim. C. P. No. 1, Phila. Co., Sept. T., 1921, No. 7517.

      L. B. Schofield, for plaintiff; J. B. Lichtenberger, for defendant.
    April 21, 1922.
   Bartlett, J.,

This case came on for hearing on the argument list for disposition of a question of law raised in the reply to a counterclaim set up in the defendant’s affidavit of defence; likewise raising the question as to whether this was the proper practice. No formal motion was filed.

The record in the case shows the plaintiff brought an action in assumpsit to recover on three promissory notes.

To the statement of claim defendant filed his affidavit of defence, setting up a counter-claim, to which counter-claim the plaintiff filed a reply in the nature of a demurrer.

Section 14 of the Practice Act of May 14, 1915, P. L. 483, provides: “In actions of assumpsit, a defendant may set off or set up by way of counterclaim against the claim of the plaintiff any right or claim for which an action of assumpsit would lie, and a verdict may be rendered in his favor for the amount found to be due, and judgment entered thereon. If in any case in which the defendant sets up a counter-claim the action of the plaintiff is discontinued, dismissed or a voluntary non-suit suffered, the counter-claim, nevertheless, may be proceeded with.”

Section 15 of the Practice Act of 1915 provides, inter alia: “The set-off or counter-claim shall be regarded as the defendant’s statement of claim, and the plaintiff’s reply as an affidavit of defence thereto.”

In the case at bar, therefore, the defendant’s set-off or counter-claim is to be regarded as his statement of claim, and as a statement of claim may be attacked by an affidavit of defence raising a question of law, we see no reason why a set-off or counter-claim should not be attacked in the same manner.

Defects in form may be attacked by motions to strike off; defects in substance by the plaintiff’s reply raising questions of law.

In the case at bar the set-off or counter-claim is one in the nature of a tort, setting up a fraud practiced upon the plaintiff.

The Practice Act provides that set-off or counter-claim, to be good in law, must be “any right or claim for which an action of assumpsit would lie.”

For the above reason, we regard it proper practice to attack the counterclaim, as was done by the plaintiff in this case, and the court, therefore, sustains the question of law raised by the reply filed, and the counter-claim of the defendant, as filed in his affidavit of defence, is stricken off.


author: Lamorelee, P. J.,

text:
    Pancoast’s Estate.

      Inheritance transfer tax — Lineals and collaterals — Children of stepchildren — Acts of June 20, 1919, and May U, 1921.

    Under the Inheritance Transfer Tax Act of June 20, 1919, P. L. 521, as amended by the Act of May 4, 1921, P. L. 341, children of decedent’s stepchildren are not relieved from the payment of collateral inheritance tax, and their interests in the estate are, therefore, subject to the tax of 10 per cent, imposed by the latter act.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1922, No. 409'.

      William A. Wiedersheim, for exceptions.

      William M. Boenning, contra.
    April 28, 1922.
   Lamorelee, P. J.,

Sarah F. Hurley Pancoast died June 19,

1921. Among other things, she bequeathed and devised one-fourth of her residuary estate to Anna D. Pancoast Doriss absolutely, if living, and if deceased, directed that the same should be divided among her issue then living per stirpes.

Anna D. Pancoast Doriss, who was a stepdaughter, predeceased Sarah F. Hurley Pancoast. She left her surviving two children, both minors, represented by a guardian appointed by this court.

In distributing the estate the auditing judge awarded the shares of the minors, subject to the payment of inheritance transfer tax at the rate of 10 per cent.

To this ruling the guardian excepted, and the correctness of the auditing judge’s ruling fs now before the court.

Prior to the passage of the Act of June 20, 1919, P. L. 521, amended by the Act of May 4, 1921, P. L. 341, this court had ruled that descendants of the children of a former husband or wife were not exonerated from the payment of collateral inheritance tax, deciding that the wording of the Act of April 22, 1905, P. L. 258, limited the exemption to “the children of a former husband or wife,” and that a descendant of such child was not within the purview of the legislation: Estate of Jacob Bossert, No. 429, October Term, 1902, adjudication confirmed nisi April 13, 1914.

Admitting this, the exceptant contends that the wording of the recent acts is such that the manifest intent, as expressed, is to carry the exemption to the descendants of such child or children, and this argument is emphasized by the omission of the word “and” preceding “lineal descendants bom in lawful wedlock.”

The argument is neither persuasive nor convincing. The Act of May 6, 1887, P. L. 79, which is in effect a codification of previous laws, provides that all estates passing from a person seized or possessed thereof shall be subject to a tax of $5 on every $100 to any person “. . . other than to or for the use of father, mother, husband, wife, children and lineal descendants born in lawful wedlock. . . .” This act would have the same legal effect had the word “children” been omitted. “Lineal descendants bom in lawful wedlock” necessarily embraces children. The standard text-books define descendants to mean children, children of children, children of children’s children to the very remotest degree. The framers of the act have followed earlier legislation. It is possible that at some time a doubt may have existed as to whether or not the use of the bald term descendants was legally sufficient to cover children. Be that as it may, the word “and” is without value; the meaning is the same when we say “children,” “lineal descendants born in lawful wedlock,” etc., etc.

The Act of June 20, 1919, P. L. 521, imposes a tax of 2 per cent, upon the clear value of property “passing to or for the use of father, mother, husband, wife, children, lineal descendants born in lawful wedlock, . . . children of a former husband or wife, . . .” If we intelligently follow the argument of the exceptant, “lineal descendants bom in lawful wedlock” form a separate and distinct class. If such be the fact, the words necessarily apply to lineal descendants of the testator, because the tax is on the estate passing from him. The context shows that this language has regard to children of a former husband or wife alone, because their issue are not lineal descendants of testator at all, nor is there any law or any decision which rules that they are to be so treated.

The language of the present Chief Justice in Miles’s Estate, 272 Pa. 329, 339, discussing the present intestate act: “And when the statute under consideration is a general revision, ‘the law, as therein written, will be deemed to be the same as it stood prior to the revision, unless we find from the statute itself, or its history, a clear intention to change it:’ In re Lis’s Estate, 139 N. W. Repr. 300, 302, and cases there cited; see, also, authorities in 36 Cyc. 1223,” is peculiarly in point with reference to the matter now before the court. There is no evil to be remedied. There is no demand for exemption of such descendants, nor is there anything in the act which would justify an extension of the law as it stood prior to its revision.

Turning again to the Act of June 20, 1919, P. L. 521, as amended by the Act of May 4, 1921, P. L. 341, we note that the tax imposed is at the rate of 10 per cent, upon the clear value of the property passing to or for the use of any other person or persons. Surely a child, grandchild or any descendant of a child of a former husband or wife comes in the category “any other person.” But one meaning can be attached to the words “any other person or persons;” that is, some one not in terms embraced among those who pay tax at the rate of 2 per cent.

“The intention to exempt must in any case be expressed in clear and unambiguous terms; taxation is the rule, exemption is the exception. All exemptions are to be strictly construed. They embrace only what is within their terms:” Cooley on Taxation, 146, approved in Com. v. Cover, 29 Pa. Superior Ct. 409.

Again: “Language which relieves from taxation is to be strictly construed: Academy v. Philadelphia County, 22 Pa. 496; Miller v. Kirkpatrick, 29 Pa. 226; Crawford v. Burrell Township, 53 Pa. 219:” Com. v. Lackawanna I. & C. Co., 129 Pa. 346, 356.

And, again, as is said by Judge Head in Mount Oliver Borough v. First German Evangelical Lutheran Congregation, 51 Pa. Superior Ct. 343, at page 346: “In determining the soundness of such claim for exemption, the statute creating an exempt class must be strictly construed against the claimant. If his right to the exemption be doubtful, the doubt must be resolved in favor of the State or the municipality in obedience to that fundamental principle of government which requires that the burdens of taxation be equally borne by all. . . .”

Children of a former husband or wife do not themselves inherit. Their exemption from tax, or their treatment as in the 2 per cent, rather than the 10 per cent, class in the present acts, is purely legislative, and whatever may be the reason for the legislation, it was manifest that neither the legislature nor the courts intended to confer immunity upon their descendants.

In our judgment, no interpretation other than that given by the auditing judge was possible, and, therefore, all exceptions are dismissed and the adjudication is confirmed absolutely.


author: Gawthrop, Dep. Att’y-Gen.,

text:
    Visitation of Banking Institutions.

      Banks and banking — Commissioner of Banking — Visitorial powers — Private banks — Acts of June 19,1911, and May 5,1921'.

    1. An individual, partnership or unincorporated association, exempted from the operation of the Private Banking Act of June 19, 1911, P. L. 1060, as provided in section 8 of the act, is not subject to any visitorial power, inspection, examination or regulation by the Commissioner of Banking.
    2. A corporation or person exempted from the operation of the Act of May 5, 1921, P. D. S74, as provided by section 12 of the act, is not exempt from supervision by the Banking Department under the powers vested in it by law.
    3. The Banking Department should not undertake the supervision of the business and affairs of persons, partnerships and corporations exempt from such supervision by law, although requested to do so.
    4. If any of those who operate under the provisions of the law exempting them from supervision by the Banking Department should advertise that they are subject thereto, notice should be served upon them by the department that, unless they discontinue such practice, public notice will be given that they are not under such supervision.
    Attorney-General’s Department. Opinion to Hon. P. G. Cameron, Second Deputy Commissioner of Banking.
    Jan. 27, 1922.
   Gawthrop, Dep. Att’y-Gen.,

I have your communication of the 12th instant, containing three inquiries concerning the duties and powers of the Banking Department.

The first is as follows: “Is an individual, partnership or unincorporated association, exempted from the operation of the Private Banking Act of June 19, 1911, P. L. 1060, as provided in section 8 of said act, subject to any visitorial power, inspection, examination or regulation by the Commissioner of Banking?”

The Act of June 19, 1911, P. L. 1060, referred to, provides in section 1, inter alia: “That, except as provided in section eight (8), no individual, partnership or unincorporated association shall hereafter engage, directly or indirectly, in the business of receiving deposits of money for safe-keeping or for the purpose of transmission to another, or for any other purpose, without having first obtained from a board, consisting of the State Treasurer, the Secretary of 'the Commonwealth, the Commissioner of Banking, hereinafter referred to as the ‘Board,’ a license to engage in such business.”

Section 8 of the same act provides as follows: “The foregoing provisions shall not apply . . . (four) to any individual, partnership or unincorporated association who would otherwise be required to comply with the provisions of this act, who shall file with the Commissioner of Banking a bond in the sum of one hundred thousand dollars, approved by the board as to. form and sufficiency for the purpose, and conditioned as in the first section prescribed, where the business is conducted in a city of the first or second class; and, if conducted elsewhere in the State, such bond shall be in the sum of fifty thousand dollars; or, in.lieu thereof, money or securities, approved by the Commissioner of Banking, of the same amounts; nor (five) to any individual, partnership or incorporated association licensed under the laws of this Commonwealth to do a brokerage business, holding a membership in a lawfully incorporated brokerage exchange and doing only such banking as shall be incidental to such brokerage business. The books or records showing the deposit or account of any depositor with any individual, partnership or unincorporated association filing a bond, money or securities approved by the board, as provided in this section, shall not be subject to any visitorial power, inspection or examination by the Commissioner of Banking, nor to examination or inspection by, or production in, any department or agency of government, State or municipal; nor to inspection, examination or production in any court in any judicial proceeding, except in eases of insolvency or bankruptcy, or a judicial proceeding or investigation involving the rights and liabilities of a creditor or depositor.

It is too clear for argument that your first inquiry must be answered in the negative, unless the Commonwealth has by some other act lodged in the Banking Department the authority of visitation, inspection and examination. All banking institutions operating under the laws of the Commonwealth are subject to such regulations as the legislature may impose by the exercise of the police power. Private banks which operate by virtue of the exemption granted in section 8 of the Act of 1911 are not beyond the reach of the police power. An examination of the statutes relating to the Banking Department, and in particular the Act of May 21, 1919, P. L. 209, relating to the organization, maintenance and operation of the Banking Department, discloses the fact that the supervision, duties and powers of the Banking Department, so far as they relate to individuals, partnerships and unincorporated associations, extend and apply only to such as were at the time of the passage of the Act of 1919, or by subsequent legislation, shall be made subject to the supervision of the Banking Department, and to individuals doing the business of building and loan associations, or a business in the nature thereof. No act of assembly has subjected to the supervision of the Banking Department those individuals, partnerships or unincorporated associations exempted under section 8 of the Act of 1911, and you are advised that your first inquiry must be answered in the negative.

Your second inquiry is as follows: “Is a corporation or person, exempted from the operation of the Act of May 5, 1921, P. L. 374, as provided by section 12 of said act, subject to any visitorial power, inspection, examination or regulation by the Commissioner of Banking?”

The act referred to provides in section 2 thereof: That, “after the first day of October, 1921, no corporation or person shall, whether or not operating under a declaration of trust or other agreement, engage or continue, either directly or indirectly, in the business, within this Commonwealth, of receiving single payments, regular instalment payments, or contributions to be held or used in any plan or accumulation or investment, or of issuing, negotiating, offering for sale or selling any contract on the partial payment or instalment plan, or of assuming fixed obligations, or issuing, in connection therewith, a contract based upon payments being made upon instalments or single payment, under which all or part of the total amount received is to be repaid at some future time, either with or without profit, unless such corporation or person is licensed to transact such business within this Commonwealth by the Commissioner in the manner hereinafter provided” by the act.

It further provides for an investigation by the Commissioner, the giving of bond or security in the sum of $100,000 for the fulfillment of contracts and the filing of reports with the Banking Commissioner, and gives the Commissioner the same powers of supervision and examination of any corporation or person licensed under the provisions of the act as are now or may hereafter be vested in him for the supervision and examination of banks, trust companies and other financial institutions.

Section 12 of the act provides that the act shall not apply to persons or corporations engaged in business of certain kinds (naming them), nor to banks and institutions subject to the supervision of the Banking Department or the supervision of the Insurance Commissioner of the Commonwealth. The effect of this section is to exempt all persons comprehended within its terms from the duty of making application for a license under this act and otherwise complying with the provisions respecting such licensees, but it does not follow that a corporation or individual or firm operating under the provisions of this section is not subject to any visitorial power, inspection, examination or regulation by the Commissioner of Banking. Under section 4 of the Act of May 21, 1919, P. L. 209, relating to the organization and operation of the Banking Department, that department is given supervision over all corporations, unincorporated associations, individuals and partnerships which are now or shall be by law made subject to the supervision of the Banking Department, and over “any individuals or associations of individuals doing the business of building and loan associations or a business in the nature thereof.” The exemption granted by section 12 of the Act of May 5, 1921, P. L. 374, is exemption from compliance with that act and not exemption .from supervision by the Banking Department under the powers vested in it by law.

Your third inquiry is as follows: “If any of the institutions above referred to are not subject to examination and supervision by the Commissioner of Banking, should the Commissioner of Banking, even though requested by the exempted institution to examine its business and affairs, accede to such request, in view of the responsibility entailed thereby and the lack of power to enforce a correction of any irregularity or unsatisfactory condition that might be disclosed?”

I am of the opinion that it would be a mistake in policy for your department to supervise and make examination of the business and affairs of persons, individuals and corporations coming within the exemption provided in the above named Acts of 1911 and 1921. If your department should examine private banks and other institutions upon the invitation of those conducting the same and should discover irregularity or that the business was in an unsafe condition, you would be powerless to close the institution or take such steps as are provided in the cases of institutions subject to your supervision. The result would be that private banks operating by reason of the exemption provided under section 8 of the Act of 1911, and those operating under the exemption provided under section 12 of the Act of 1921, could advertise to the public that the Banking Department of the Commonwealth was exercising supervision over them and examining their affairs, but, at the same time, the Banking Department would be without authority to take the business into its own hands and protect depositors if necessity arise.

I suggest that if your attention is called to the fact that any of those who operate under the provisions of the law exempting them from supervision by the Banking Department advertise that they are subject thereto, you should serve notice that, unless they discontinue the practice, your department will publicly give notice that they are not under its supervision.

Prom Guy H. Davies, Harrisburg, Pa.


author: Van Swearingen, P. J.,

text:
    Commonwealth v. Doolittle.

      Criminal law — Indictment—Place of offence — Act of May 28, 1885.

    1. An indictment drawn substantially in the language of the Act of May 28, 1885, P. L. 27, charging that the defendant (1) unlawfully did take a female child under the age of sixteen years, naming her, of the age of thirteen years, into a house for the purpose of sexual intercourse, and (2) unlawfully did enveigle and entice the minor female child mentioned into a house and elsewhere for the purpose of sexual intercourse, will not be quashed on the ground that the indictment is not sufficiently precise to enable the defendant properly to prepare his defence and to protect him against a second prosecution for the same offence.
    2. In such a case it is not necessary that the indictment shall state specifically the exact place where the offence occurred. If the accused needs more specific information than is contained in the indictment, he may ask for a bill of particulars.
    3. Certainty in charging the offence is required, but only such a reasonable certainty in stating the facts and circumstances of the offence as will fairly apprise the accused of the crime charged.
    Motion to quash indictment. Q. S. Fayette Co., Dec. Sess., 1921, No. 44.

      William A. Miller, District Attorney, and H. E. Hackney, Assistant District Attorney, for Commonwealth.

      W. C. McKean (of Umbel, Robinson, McKean & Williams), for defendant.
    Dec. 27, 1921.
   Van Swearingen, P. J.,

By section 1 of the Act of May 28, 1885, P. L. 27, it is provided: “That any person who takes a female child under the age of sixteen years for the purpose of prostitution or sexual intercourse, or, without the consent of her father, mother, guardian or other person having legal custody of her person, for the purpose of marriage, or who enveigles or entices any such minor female child into a house of ill-fame, or of assignation, or elsewhere, for the purpose of prostitution or sexual intercourse, shall, in every such case, be guilty of a misdemeanor,” and upon conviction thereof shall be punished as in the act prescribed. The defendant, George Doolittle, was indicted under that act on two counts: (1) That he “unlawfully did take a female child under the age of sixteen years, to wit, one Eva May Neilson, of the age of thirteen years, into a house for the purpose of sexual intercourse;” and (2) that he “unlawfully did enveigle and entice the minor female child mentioned in the first count of this bill of indictment into a house and elsewhere for the purpose of sexual intercourse.”

Defendant’s counsel moved to quash the indictment on grounds (1) that neither the information nor the indictment, or any count therein, charges any offence made punishable by the act of assembly with the precision necessary and required in order that the defendant might properly prepare his defence thereto; (2) that neither of the counts in the indictment charges the offence laid therein with the precision necessary and required in order to permit the defendant to plead former acquittal, or former conviction, if he should be prosecuted again for the same offence; and (3) that the second count in the indictment is bad for duplicity, in that it charges two distinct offences in the one count, namely, (a) the enticing of a minor female child into a house for the purpose of sexual intercourse, and (b) the enticing of a minor female child elsewhere for the purpose of sexual intercourse. The information sets forth that “at Republic, in the County of Fayette, on the 10th day of July, 1921, the defendant aforesaid unlawfully did take, enveigle or entice a minor female child under the age of sixteen years, to wit, Eva May Neilson, of the age of thirteen years, into a house or elsewhere for the purpose of sexual intercourse.” Each count of the indictment charges the offence as having been committed in the County of Fayette and within the jurisdiction of this court.

The principal contention of defendant’s counsel at the argument was that the indictment must state specifically the exact place where the offence occurred so as to protect the defendant from a second prosecution for the same offence. But it is not necessary for that purpose that the indictment shall set forth all the details so as to thereby, as matter of record, protect the defendant from a second prosecution. The plea of autre fois acquit or of autre fois convict is of a mixed nature, consisting partly of matters of record and partly of matters of fact. The matters of record are the former indictment and the verdict thereon; the matters of fact are the identity of the person and of the offence. To sustain such a plea the burden is on the defendant, and he may prove the identity of the person and offence by parol testimony, and must support his allegations by a preponderance of the evidence. When the facts are not controverted, the court has authority to direct a verdict on the plea for or against the Commonwealth, as the case may require. If the matters of fact involved in the plea be traversed, the case thereon is for the jury. If both this plea and the plea of not guilty be entered, the trial should be had preliminarily on the first, and thereafter on the second if the case so requires: 16 Corpus Juris, §§ 762, 769 and 771; Wharton’s Criminal Pleading and Practice (8th ed.), 481; Bishop’s Criminal Procedure (4th ed.), § 816; Sadler’s Criminal Procedure, § 335; Greenleaf on Evidence (16th ed.), § 36; Com. v. Montross, 8 Pa. Superior Ct. 237; Com. v. Brown, 28 Pa. Superior Ct. 296; Com. v. Veley, 63 Pa. Superior Ct. 489; Com. v. Greevy, 75 Pa. Superior Ct. 116, reversed on certain points in 271 Pa. 95; Com. v. Dotterer, 30 Pa. C. C. Reps. 364. In simplification of these pleas, section 30 of the Act of March 31, 1860, P. L. 427, provides: “In any plea of autre fois acquit or autre fois convict it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment.” It was held in Com. v. Shoener, 30 Pa. Superior Ct. 321, affirmed in 216 Pa. 71, that “the true test to ascertain whether the plea of autre fois acquit be a good bar is whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction on the first,” citing Com. v. Tadrick, 1 Pa. Superior Ct. 555; Com. v. Rockafellow, 3 Pa. Superior Ct. 588; Com. v. Montross, 8 Pa. Superior Ct. 237; Com. v. Hazlett, 14 Pa. Superior Ct. 352; s. c., 16 Pa. Superior Ct. 534.

Certainty in charging the offence is required, but only such a reasonable certainty in stating the facts and circumstances of the offence as will fairly apprise the accused of the crime which is charged that he may intelligently prepare to meet it, and, if convicted, successfully plead his conviction in a subsequent prosecution therefor. But this does not require so minute a description of the offence as to entirely supersede proof of its identity when the judgment is pleaded in bar to a second indictment: Joyce on Indictments, §§ 251 and 252. Ordinarily it is sufficient to aver the county as the place of the commission of the offence, if the county be coterminous with the jurisdiction of the court: Wharton’s Criminal Pleading and Practice (8th ed.), § 139; Wharton’s Criminal Procedure (10th ed.), § 181. Under the Act of May 28, 1885, P. L. 27, now before us, it was said in Com. v. Bowser, 61 Pa. Superior Ct. 107: “The prohibition is directed against having sexual intercourse with a female child under the age of sixteen years; the place where the act is committed is not material under this statute, and in the very words of the statute, the unlawful act may be committed ‘in a house of ill-fame, or assignation, or elsewhere.’ ”

Section 11 of the Act of March 31, 1860, P. L. 427, provides: “Every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment, if any such there be, or, if at common law, so plainly that the nature of the offence charged may be easily understood by the jury.” And under this provision of the act, in Com v. Miller, 31 Pa. Superior Ct. 309, where, on motion to quash the indictment, it was argued that the averment of certain particulars was essential to enable the defendant to prepare his defence and to protect him against a second prosecution for the same offence, President Judge Rice said: “Where the offence is purely statutory, having no relation to the common law — where, in other words, the statute specifically sets out what acts shall constitute the offence — section 11 of the Criminal Procedure Act of 1860, which provides that every indictment shall be deemed sufficient which charges the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment, is applicable. This statutory rule, as applied by the courts of this Commonwealth, works no hardship and infringes no constitutional right of the accused, for whenever, before trial, he needs more specific information than is contained in the indictment, drawn in accordance with the provision of the Criminal Procedure Act, to enable him to make a just defence, it may be had on timely and proper application to the court for a bill of particulars. This is none the less true because an application for a bill of particulars is addressed to the sound discretion of the court.” Citing Com. v. Johnston, 19 Pa. Superior Ct. 241, where the same principle was stated.

In Williams v. Com., 91 Pa. 493, it was said by Mr. Justice Trunkey: “The indictment is sufficient under the Criminal Procedure Act, and the motion to quash was rightly refused. It does not furnish sufficient information to enable the defendant to prepare his defence, and this may often occur where the law declares an indictment good which charges the crime substantially in the language of the act of assembly prohibiting the crime and prescribing the punishment. Prior to 1860, when greater particularity was required in setting out the offence in the indictment, it sometimes failed to give the defendant such notice as he was entitled to of the specific matters which would be attempted to be proved against him on the trial. Whenever such is the case, the accused may apply to the court or judge for an order that a bill of particulars be filed, and on the trial the Commonwealth will be restricted to the proof of the items contained therein.” In Com. v. McCoy, 10 Pa. Superior Ct. 598, where the indictment was for disturbing a meeting being held for social and moral purposes, it was said by the court: “The indictment here being substantially in the words of the act of assembly, it was not necessary that either the specific purposes for which the meeting was held or the nature or character of the disturbance should be set forth with greater particularity and detail. It was distinctly charged that there was a disturbance, wilfully and maliciously made, at a meeting held at a church for social and moral purposes. This constitutes an offence under the provisions of the Criminal Code already quoted, and if the defendant desired to be. more particularly informed as to the specific mode of disturbance, he could have made the application referred to in Williams v. Com., 91 Pa. 493.” In Com. v. Thompson, 46 Pa. Superior Ct. 225, it was held, as stated in the syllabus: “An indictment charging the prisoner with the larceny of ‘fourteen dollars, lawful money of the United States, the notes and coins composing said sum being to the inquest aforesaid as yet unknown,’ is a sufficient description of the property. If the defendant requires a more specific description of the property he is charged with stealing, in order to make a proper defence, he may ask for a bill of particulars.”

In Com. v. New Bethlehem Borough, 15 Pa. Superior Ct. 158, after stating that criminal pleading is no longer the technical thing it was, and that courts look more to substantial justice than to artificial nicety, it was said by President Judge Rice: “Notwithstanding this liberality of pleading, the rule undoubtedly is that an indictment must show that an offence has been committed, and, if at common law, must describe the same ‘so plainly that the nature of the offence charged may be easily understood by the jury.’ This is the test by which the sufficiency of the indictment is to be determined. If it comes up to this standard, but does not furnish sufficient information to enable the defendant to prepare his defence, the remedy is not by motion to quash, but by motion for a bill of particulars.”

In Com. v. Buccieri, 153 Pa. 535, where the defendant was indicted for murder, and the third and fourth assignments of error were to the refusals of the trial court to quash the indictment and to direct the Commonwealth to furnish the prisoner’s counsel with a bill of particulars, it was said by Mr. Justice Dean: “The indictment itself is drawn in the general terms directed by the Criminal Code of 1860. There are doubtless cases where it is proper that the prisoner shall have, under an indictment so drawn, a more particular specification of the accusation he is called upon to defend against, otherwise he might be taken by surprise. It is enough to say that this does not belong to that class of cases. It is not necessary to constitute a good indictment under our statute that the weapon used should be averred, nor the manner of the killing. Before arraignment, if it be made to appear to the court that any injustice is likely to be done the prisoner because of vagueness of the indictment, a bill of particulars may be ordered; this, not because the prisoner has a right to demand it, but because the court, after trial, on proof of surprise or injustice in consequence of the absence of specific averment as to weapon and manner of killing, would set aside the verdict and grant a new trial. Here, the indictment set out all the law demanded. A bill of particulars could give the prisoner no information as to the weapon or manner of killing which he did not possess before arraignment. It was not pretended that he was ‘surprised’ by unexpected proof, or that the Commonwealth proved the use of a weapon not theretofore known to him, nor that the manner of killing was other than he knew he was charged with. If by a bill of particulars was meant a specification of the evidence to be adduced by the Commonwealth, this the prisoner had no right to ask, nor the court any right to direct.” In Com. v. Zuern, 16 Pa. Superior Ct. 588, there was a petition by the defendant that the district attorney be directed to “file a bill of particulars of matters they propose to prove in this case,” and the Superior Court, citing Com. v. Buccieri, 153 Pa. 535, said: “These requests were in effect for a specification of the evidence to be adduced by the Commonwealth. This the prisoner had no right to demand nor the court to require.” See, also, Com. v. Powell, 23 Pa. Superior Ct. 370; Com. v. Shoener, 25 Pa. Superior Ct. 526.

What has been said sufficiently covers all the reasons assigned in support of the motion of defendant’s counsel. The indictment is drawn substantially in the language of the Act of May 28, 1885, P. L. 27, prohibiting the crime and prescribing the punishment. The offence is purely statutory. The statements contained in the indictment show that an offence under the statute has been committed. The facts and circumstances of the offence are stated in the indictment with such reasonable certainty as will fairly apprise the accused of the crime charged. We are of opinion that no legal ground for quashing the indictment has been shown.

And now, Dec. 27, 1921, for the reasons stated in the opinion herewith filed, the motion to quash the indictment is overruled and dismissed.

From Luke H. Frasher, Uniontown, Pa.


author: Lindsey, P. J.,

text:
    Edwards’s Estate.

      Inheritance transfer tax — Estate by entireties — Conveyances intended to take effect in enjoyment after death or made in contemplation of death — Act of June 20,1919. '
    1. Where, about three weeks before his death, and during his last illness, though in a period of temporary improvement, a decedent conveyed property by deed to his attorney, who immediately reconveyed the same to decedent and his wife, no consideration having passed, such transfer was "intended to take effect in possession or enjoyment at or after” the death of the grantor, and “made in contemplation of” his death, and the property was subject to the inheritance transfer tax,
    2. The language of the Act of June 20, 1919, P. L. 521, "in contemplation of death” means in expectation of death or with that event in view. It does not mean that general expectation which all rational persons have that they must die some time, but that apprehension of death that arises from some existing infirmity of such a character as would prompt an ordinarily prudent person to make a disposition of his property and bestow it upon those whom he regarded as most entitled to be the recipients of his bounty.
    Appeal from assessment of inheritance transfer tax. O. C. Warren Co., March T., 1921, No. 39.

      J. H. Alexander and W. S. Clark, for appellant.

      Peter E. Nelson, for appellee.
    Dec. 30, 1921.
   Lindsey, P. J.,

This is an appeal from the assessment of an inheritance tax upon certain real estate in the Borough of Warren, known as the Carver House property. The decedent, James Edwards, died Jan. 8,1921. He had been the owner of the real estate in question for many years, but on Nov. 23, 1920, he, by deed, in which his wife joined, conveyed the property for a nominal consideration of one dollar to J. H. Alexander, who was his attorney, and on the same date J. H. Alexander and wife reconveyed the same property for the consideration of one dollar to James Edwards and Jennie L. Edwards, his wife, and the two deeds were filed for record at the same time in the recorder’s oifice of Warren County. It is claimed by the appel-lánt that, as a result of this transaction, an estate by entireties vested in James Edwards and Jennie L. Edwards, the appellant, and that thereby the appellant took title and possession of the entire estate in said property on Nov. 23, 1920, and that the effect of the death of James Edwards was to simply terminate the title of the said James Edwards in said property, but that no interest or title passed to the appellant on his death, she being already invested with the entire title under and by virtue of the deeds before referred to, and that the property in question is not subject to inheritance tax. The Commonwealth, however, claims that the transfer of title to the appellant by the said deeds was one (a) intended to take effect in possession or enjoyment at or after the death of the said James Edwards, and (b) was made in contemplation of the grantor’s death, and, therefore, within the provisions of paragraph (c) of section 1 of the Act of June 20, 1919, P. L. 521, and subject to the tax imposed by said act.

The circumstances of the making of the two conveyances above recited were, that in the fall of 1920 Mr. Edwards was suffering from kidney disturbance, general breakdown and chronic diabetes. He had had these maladies for some time, but his condition became acute about Oct. 22,1920. He did not improve, and was removed to the Warren General Hospital on Nov. 19, 1920. His condition before going to the hospital was described by Dr. Mitchell, who saw him at his home, as “a condition of semi-delirium, a good deal of distress, and hardly appreciated things that were occurring from day to day.” After being removed to the hospital there was a marked improvement in Mr. Edwards’s condition; he was able to be up and became mentally alert and cheerful again and talked about a trip to Atlantic City. The improvement, however, was temporary; he never was able to leave the hospital, and died there Jan. 8, 1921. The deeds in question were made Nov. 23, 1920, four days after Mr. Edwards was taken to the hospital. It appears from the testimony that Mr. Edwards purchased the Carver House about twenty-five years before his death; that his wife, the appellant, during the time he ran it, always was actively employed in assisting in the management of it; that the decedent had said to the appellant, as she testifies, “that I earned more of it than he did,” and “that he always wanted to deed it to me while he was living;” that he had on several occasions talked of “making a joint deed,” particularly before making a trip to Europe some years before his death. Nothing of the sort was done, however, before Nov. 23, 1920, but on July 13, 1917, the decedent made a will, by which, after three specific legacies, he left all his property to his wife, Jennie L. Edwards, which will was duly probated after his death.

The provisions of the Act of June 20, 1919, P. L. 521, under which it is claimed the real estate in question is subject to tax, are as follows: “Section 1. Be it enacted, etc., That a tax shall be, and is hereby, imposed upon the transfer of any property, real or personal, or of any interest therein, or income therefrom, in trust or otherwise, to persons or corporations in the following cases: ... (c) When the transfer is of-property made by a resident ... by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.”

It is apparent and not disputed that the two deeds to and from J. H. Alexander were intended to transfer title from James Edwards to James Edwards and Jennie L. Edwards, husband and wife, as tenants by entireties; that there was no consideration moving between the parties to these conveyances, and that J. H. Alexander was merely a legal conduit pipe to effectuate the aforesaid intention as to title. Was this transfer then either intended to take effect in possession or enjoyment at or after the death of James Edwards, or made by him in contemplation of death? The language, “intended to take effect in possession or enjoyment at or after such death,” is the same language used in the Act of July 11, 1917, P. L. 832, relating to direct inheritance tax, and the Act of May 6, 1887, P. L. 79, and earlier acts relating to collateral inheritance taxes. It has been construed by the Supreme Court in several cases raising questions similar to the one before us. In Reish v. Com., 106 Pa. 521, the decedent, John Reish, while suffering from his last sickness, conveyed his property in fee to his brother, Isaac Reish, for the consideration of one dollar. At the same time Isaac Reish executed a bond conditioned for the faithful payment to John Reish of the net income of said property. The same argument as made in this case was made there, viz., that no title passed from John Reish at his death, but that it had previously vested in Isaac by virtue of the deed. It was held that the deed and bond constituted a single transaction, and the Supreme Court said: “All property is subject to the tax which, in the language of the statute, is transferred by deed, etc., made or intended to take effect in possession, or enjoyment after the death of the grantor. The Commonwealth’s right to collateral inheritance tax is, therefore, not defeated by a conveyance of the title, nor by possession taken under it, if the enjoyment is intended to take effect at the death of! the grantor. The enjoyment of real estate is not the exact equivalent of possession, nor is it so used in this statute; in no case could the distinction be more clearly made than in the case under consideration. Under his deed Isaac Reish was the undoubted owner of the lands in fee and of the personalty absolutely, and the title drew to it the right of possession; but by the express contemporaneous agreement of the parties, the ownership took effect in enjoyment at the death of the grantor. John Reish was entitled to receive the same income and profits from the property during his life as if the transfer had not been made. . . . The policy of the law will not permit the owner of an estate to defeat the plain provisions of the collateral inheritance law by any device which secures to him for life the income, profits and enjoyment thereof; it must be by such a conveyance as parts with the possession, the title and the enjoyment in the grantor’s lifetime. ... A very labored and ingenious argument is made to show that John Reish did not die seized or possessed of any estate excepting the bond and the right it secured; that these only should have been appraised. The learned counsel contend that ‘the part of such estate or interest therein’ transferred by the death of John Reish, and which took effect in enjoyment and possession, and these only, are subject to the tax. The letter, as well as the spirit and meaning of the act, however, is clear. When an estate is transferred by deed to any other than those exempted from the operation of the statute, intended, however, to take effect in enjoyment at the death of the grantor, it is the value of the lands so transferred which is liable to the duty, not the value of the interest or part remaining.”

Applying the tests laid down in Reish v. Commonwealth to the facts of the case at bar, the transfer here is clearly within the statute. Conceding the argument that by the transfer Jennie L. Edwards took the title and right of possession to the whole, James Edwards, nevertheless, did not part with either the possession, the title or the enjoyment in his lifetime. He remained entitled to receive the same income and profits from the property during his life as if the transfer had not been made. It would seem then that the transfer was intended to take effect in enjoyment after his death, otherwise he would have conveyed the whole estate in the land to Jennie L. Edwards by deed absolute and retained no estate for himself during his life, as he actually did.

In DuBois’s Appeal, 121 Pa. 368, John DuBois, about two years before his death, executed and delivered to his nephew, John E. DuBois, a deed of conveyance of grantor’s property, subject, however, to conditions, reservations and stipulations to the grantor to create liabilities to the full value of the property. The grantee, in consideration of the conveyance, covenanted to pay “all notes, obligations, debts, damages or contracts . . . executed, made or incurred at any time in the future till the day of his death by the said John DuBois,” and the real estate was charged “for the full and faithful performance of this covenant.” It further provided that in case the grantee should die before the grantor, the property should revert and become revested in the grantor. The Supreme Court said: “In the event of his surviving the grantee the deed was to become null and void, and everything revert to the former. During their joint lives the grantor had the power to incur obligations to the full value of the property, for which the property itself, as well as the grantee individually, was directly and specifically liable. The naked legal title acquired by the grantee was the merest shadow. The grantor held a firm grasp on the entire substance, and he retained it as long as he lived. In view of all this, it is idle to contend that in any proper or statutory sense of the word ‘enjoyment’ the conveyance in question took effect, or could have been intended to take effect, in enjoyment prior to the death of John DuBois.” So here, if James Edwards survived Jennie L. Edwards, he retained the whole estate, and during their joint lives he held full control and enjoyment of the property.

In Lines’s Estate, 155 Pa. 378, a decedent had conveyed all his property in trust to a trust company to collect the profits and pay them to the decedent during his life, and on his death to certain beneficiaries named, reserving in the decedent the power to alter the deed of trust at any time. It was there said: “The manifest purpose of our Collateral Inheritance Tax Law is to subject property limited by deed in the manner stated in the statute to taxation, because it is still substantially the property of the grantor and does not actually pass, nor is it intended to pass, to the collateral beneficiaries until his death, and hence it is essentially similar in that respect to a devolution of property by testacy or intestacy upon the death of the owner.”

“When the right to income is retained during the life, the conveyance, as to enjoyment, does not take effect until the death of the grantor:” Todd’s Estate (No. 2), 237 Pa. 466. See, also, Seibert’s Appeal, 110 Pa. 329; Wright’s Appeal, 38 Pa. 507.

In our opinion, the transfer in the case at bar is one intended to take effect in enjoyment at or after the death of the grantor, under the foregoing authorities. It makes no difference whether there was any intention or purpose of evading the tax or not. As was said in Conwell’s Estate, 22 W. N. C. 183: “It is immaterial that no fraud was meant to be perpetrated; our duty is to close up the avenues through which fraud may by possibility enter. . . . If the statute may be avoided by a device like this, however innocent may have been the intention of the parties, it may soon be impossible to find an outlet for its operation at all.”

It is also contended by the Commonwealth that the transfer in this case was one made in contemplation of death, and for that reason within the statute. This language does not appear in the statutes in this State relating to inheritance taxes prior to the Act of 1919, but it has been used in the statutes of many other states. We have found no Pennsylvania case construing this language. Elsewhere, however, it has been held that, as used in inheritance tax statutes, the words “in contemplation of death” do not refer to that general expectation of death entertained by all persons, but to that expectation which arises from such bodily or mental conditions, irrespective of the cause in any particular case, which prompts persons to dispose of their property to those they deem entitled to their bounty. Gifts causa mortis come within the statute, but the expectation of death need not be so immediate or impending if the expectation is present, gifts inter vivos are also included: Conway’s Estate v. State (Indiana), 120 N. E. Repr. 717; Rosenthal v. People, 211 Ill. 306, 71 N. E. Repr. 1121.

“A gift is made ‘in contemplation of death’ when it is made in expectation of that event or with that event in view. The term does not mean that general expectation which all rational persons have that they must die some time, but refers more particularly to that apprehension of death that arises from some existing infirmity of such a character as would prompt an ordinarily prudent person to make a disposition of his property and bestow it upon those whom he regarded as most entitled to be the recipients of his bounty. What prompts the making of such a conveyance rests upon the facts and circumstances surrounding each particular case. No general rule can be formulated which will fit all cases, but each case must be examined and determined on its own facts and circumstances in the light of the experience which the courts have gained in dealing with such matters. For this purpose the donor’s age, physical condition and any action contemplated to be taken by him with respect to his health, as well as the length of time he survives the making of the transfers, are all proper matters to be considered in determining whether or not the act was done in contemplation of death. If, upon a consideration of all the surrounding facts and circumstances, it is apparent the donor’s condition was such that he might reasonably have expected death at any time, and the disposition made of his property is such as he had contemplated making in that event, or such as he might reasonably be supposed to have desired to be made at his death, and no other moving cause is apparent for making the transfer at the time it was made, the gift will be deemed to have been made in contemplation of death, even though the transfer is absolute in form and such as would invest the donee with the absolute right to the property during the lifetime of the donor:” People v. Danks, 289 Ill. 542, 124 N. E. Repr. 625. See Merrifield’s Estate v. People, 212 Ill. 400, 72 N. E. Repr. 446; People v. Porter, 287 Ill. 401, 123 N. E. Repr. 59; People v. Carpenter, 264 Ill. 400, 106 N. E. Repr. 302.

In the case at bar the transfer was made during the last illness of the donor, and about seven weeks before his death; his condition before making it was such as to arouse the apprehension of attending physicians as to the ultimate, though not the immediate, outcome. It may be reasonably supposed that the grantor, who knew his general condition, might have entertained the same apprehension. This, we think, would be within the language of the statute as above defined. There is no other moving cause apparent for making the transfer at the time it was made. It is true the grantor had talked of making some such transfer at different times, particularly before going to Europe, but he never had made such, and subsequently to his European trip in 1917, had made a will under which this property would pass to Jennie I;. Edwards, the grantee. Under all the facts and circumstances, it seems to us that the reasonable conclusion is that the transfer was made by the grantor in contemplation of death as those words are used in the statute.

It follows from the foregoing conclusions that the real estate in question is subject to the tax.

And now, Dec. 30, 1921, it is ordered, adjudged and decreed that Jennie L. Edwards, executrix of the estate of James Edwards, deceased, pay to the Register of Wills of Warren County, Pennsylvania, the inheritance tax on the real estate known as the Carver House property, in Warren Borough, at the rate of 2 per centum on the appraised value thereof, said appraised value being $75,000, and the said tax amounting to $1500, within thirty days from this date; and it is further ordered, adjudged and decreed that the said executrix pay the costs of these proceedings within thirty days from this date.


author: Hull, Dep. Att’y-Gen.,

text:
    Inheritance Tax of Persons Presumed to be Dead.

      Transfer inheritance tax — Persons presumed to be dead — Deduction for payment within three months — Acts of June 7,1917, and June 20,1919.

    1. A discount of 5 per cent, will be allowed from the amount of transfer inheritance tax due from the estate of a person presumed to be dead, if such payment be made within three months from the date of the final confirmation of the decree of the Orphans’ Court wherein the presumption of death was adjudicated'.
    2. The Acts of June 7, 1917, P. L. 447, and June 20, 1919, P. L. 521, considered.
    Attorney-General’s Department. Opinion to Hon. Samuel S. Lewis, Auditor General.
    Jan. 12, 1922.
   Hull, Dep. Att’y-Gen.,

This department is in receipt of your communication inquiring what shall be considered to be the date of death, within the meaning of section 38 of the Act of June 20, 1919, P. L. 521, in the case of a presumed decedent.

Section 38 of the Act of 1919 provides, in part, as follows: “If the tax is paid within three months after the death of the decedent, a discount of 5 per centum shall be allowed.”

This Act of 1919 provides for the imposition and collection of a transfer inheritance tax upon property passing by will or by the intestate laws from persons dying seized or possessed thereof to others. In the case of one who, by proper legal proceedings in such cases made and provided, has been declared legally dead, his property passes by will or by the intestate laws in substantially the same manner as the property of one known and proved to be actually dead.

Section 6, paragraph (g), of the Fiduciaries Act (June 7, 1917, P. L. 447) provides: “The executor or administrator to whom letters have been issued upon the estate of a presumed decedent, as aforesaid, shall administer the estate in the same manner and with the same effect as the same would be administered under existing laws of this Commonwealth, if the presumed decedent were in fact dead. . . .”

It is clear, therefore, that the transfer inheritance tax is collectible from such estates in substantially the same manner as it is from the estates of other decedents.

Section 6 of the Fiduciaries Act provides the procedure to be followed in the case of one presumed to be dead. After presentation of a proper petition to the Orphans’ Court and advertisement of notice, a time for hearing is fixed. At the hearing, if the legal presumption of death is made out, the court frames its decree and determines therein the date when the presumption of death arose. Notice of this decree is then published, and a period of twelve weeks must elapse after the date of the last publication, within which time, if satisfactory evidence be produced that the presumed decedent is still alive, the decree will be vacated. If such evidence is not forthcoming, then the decree theretofore made is confirmed absolutely, and the court thereupon directs the register of wills to issue letters of administration, etc., to the person entitled thereto.

Under the procedure thus prescribed, the final adjudication of the presumed death does not occur until the decree of the court is confirmed absolutely, and, accordingly, the date of this confirmation should be considered as the date of death in such cases for the purpose of computing the three-months’ period within which payment of the transfer inheritance tax will entitle the estate to a discount of 5 per centum.

I, therefore, specifically advise you that a discount of 5 per cent, shall be allowed from the amount of transfer inheritance tax due from the estate of a presumed decedent, if such payment be made within three months from the date of final confirmation of the decree of the Orphans’ Court wherein the presumption of death was adjudicated.

Prom Guy H. Davies, Harrisburg, Pa.


author: Koch, J.,

text:
    Rubinsky v. City of Pottsville.

      Municipalities — Refunding money to owners of property — Improper payments — Constitutional law — Statutes — Amendments—Acts of July 5. 1917, and March 21,1919.

    1. Where an ordinance of a city, passed in 1920, provides for the refunding of moneys which property owners had paid into the city treasury under wrongful assessments, and the ordinance in its preamble improperly recites the Act of July 5, 1917, P. L. 682, relating to such payments by cities alone, although such act had been superseded by the Act of March 21, 1919, P. L. 20, which covered cities, boroughs or incorporated towns, the recital of the Act of 1917 is harmless, and the city cannot set up as a defence to such payment the alleged unconstitutionality of the Act of 1917 as local legislation.
    2. The Act of 1919 is not local legislation, is, therefore, constitutional, and is authority for the ordinance passed in 1920.
    Case stated. C. P. Schuylkill Co., Jan. T., 1922, No. 192.

      E. P. Leuschner, for plaintiff; Morris Spicker, for defendant.
    Jan. 2, 1922.
   Koch, J.,

From the facts agreed upon it appears that, by virtue of an ordinance of said city approved June 2, 1914, that portion of West Market Street which lies between Fourth and Twelfth Streets in said city was improved and paved, and that on that account the sum of $442.98 was assessed against certain property of Harris Rubinsky, deceased, which property abuts on said West Market Street; that the said sum of money was paid into the treasury of said city on June 4,1916; that among others whose property was in like manner assessed was one Howard N. Jones, who declined to pay the assessment; that he not only declined to pay the assessment, but resisted when legal proceedings were had to compel its payment. Those proceedings were entered to No. 392, May Term, 1915, and, upon trial had before a jury, a verdict was entered in his favor. Later, an appeal by the city was taken to the Superior Court of Pennsylvania, and the judgment upon the verdict in favor of Jones was affirmed. See Pottsville v. Jones, 63 Pa. Superior Ct. 180. According to that decision, abutting property owners were not liable for the improvement of the street, because the jury found that the street had been paved or macadamized prior to that time, and that abutting property owners are not liable for the cost of repaving said street. The assessment against the Rubinsky property having been voluntarily paid, the Rubin-sky estate, by this suit, now seeks to compel the city to repay the said $442.98, and grounds its right of action upon two acts of assembly, approved respectively July 5, 1917, P. L. 682, and March 21, 1919, P. L. 20.

Having voluntarily paid the said sum of $442.98 into the city treasury, the plaintiff is in no position to recover the money back, unless said acts of assembly enable him to do so: Peebles and wife v. City of Pittsburgh, 101 Pa. 304; De La Cuesta v. Insurance Co., 136 Pa. 62; Bryson v. Trustees, 168 Pa. 352; Davis v. Patterson, 12 Pa. Superior Ct. 479; United States v. Wilson, 168 U. S. 273; 42 Law Ed., 464.

The title of the Act of 1917 is as follows: “An act authorizing cities to refund moneys paid by property owners into their treasuries, when a court of competent jurisdiction shall have determined that there was no liability for such payment when made.”

The Act of 1919, upon which the plaintiff relies, is amendatory of the one just quoted. It is so amended as to include boroughs and incorporated towns. Each of the Acts of 1917 and 1919 contains but one section. We will quote the section as it appears in the Act of 1919, italicizing the portions of the Act of 1919 which are added to the Act of 1917: “Section 1. Be it enacted, &c., That whenever any city, borough or incorporated town within this Commonwealth shall have, under existing laws, paved, curbed and guttered or otherwise improved its highways, or any of them, or has opened or graded, or acquired, or condemned property in or along its highways, or any of them, at the expense, in whole or in part, of the owners of property bounding and abutting thereon, and such owners,,or any number of them, shall have paid the assessments levied against them by such city, borough or incorporated town, or by viewers, for such improvement, into the respective treasury, the said cities, boroughs or incorporated towns are hereby authorized and empowered to refund to the said owners, or to their heirs or assigns, the amount of the assessment thus paid by them, if it shall have been determined by any proceeding at law or in equity by a court of competent jurisdiction that the owners of property bounding or abutting on said highway or highways were not liable for the payment of such improvement at the time such improvement was ordered by the council of said cities, boroughs or incorporated towns to be made.”

On Sept. 14, 1920, the City of Pottsville passed an ordinance, entitled “An ordinance authorizing and directing the City of Pottsville to refund moneys paid by property owners into the city treasury assessed against them by reason of the paving, curbing and improving of West Market Street from Fourth to Twelfth Street, and providing for the manner of repayment of the same.” In a preamble of seventeen separate paragraphs the reasons for passing the ordinance clearly appear, and a reference is therein made to the Act of July 5, 1917, P. L. 682, but no reference is made to the Act of March 21, 1919, P. L. 20. The ordinance consists of three sections, as follows:

“Section 1. That the City of Pottsville is hereby authorized and directed to pay and refund to the several owners of property bounding and abutting on West Market Street, from Fourth Street to Twelfth Street, all such sum or sums of money that have been assessed against them and paid by them respectively into the city treasury by reason or on account of a certain paving, curbing and improving of West Market Street, from Fourth Street to Twelfth Street, in pursuance of an Ordinance of the City of Pottsville, approved June 2, 1914.
“Section 2. That an appropriation be made of moneys sufficient to pay and refund the respective property owners bounding and abutting on West Market Street, from Fourth Street to Twelfth Street, who have paid the assessments levied against them as aforesaid, at the begining of the next fiscal year.
“Section 3. That when said appropriation is made, and an item contained in the budget to cover the expenditures of the city for the year 1921 is set aside for this particular purpose, the Superintendent of Accounts and Finance is hereby directed to cause to be issued a warrant or warrants in favor of the said respective property owners who have paid the assessments levied upon them as aforesaid, and the City Treasurer is directed to pay the same.
“All ordinances or parts of ordinances inconsistent herewith are hereby repealed.”

In the fourth paragraph of the case stated “it is agreed that no appropriation has been made by the City of Pottsville in pursuance of the ordinance referred to, passed the 14th day of September, 1920, to pay and refund the moneys to the plaintiff and other property owners on West Market Street, assessed against their respective properties and paid by them into the city treasury.”

Notwithstanding the passage of the Ordinance of 1920 by the City of Potts-ville, it now resists this suit for the recovery of the money paid by the Rubin-sky estate, upon the alleged ground that the Act of 1917 is unconstitutional, as offending against the 7th section of the 3rd article of the Constitution, which, inter alia, forbids the general assembly to pass “any local or special law . . . regulating the affairs of counties, cities, townships, wards, boroughs or school districts ... or refunding moneys legally paid into the treasury.”

The Act of June 25, 1885, P. L. 187, regulating the collection of taxes in the several boroughs and townships of this Commonwealth, is a general act, although it is limited in its application to only the political divisions mentioned in the act. Nor is that act unconstitutional because it fails to repeal all local laws on the same subject: Evans v. Phillipi, 117 Pa. 226. An act is not local, but general, when it is passed for the whole State: Com. v. Reynolds, 137 Pa. 389, 401. “It is the settled law since Wheeler v. Philadelphia, 77 Pa. 338, that classification based on genuine and substantial distinctions is within the constitutional power of the legislature, and an act which applies to all the members of the class is general and not special:” Sugar Notch Borough, 192 Pa. 349, 356. There is no constitutional objection against classification of municipal divisions. Nor is there objection against legislation for each class. “It would be a most unfortunate clog on the improvement of our school system if Philadelphia, Pittsburgh, Allegheny and other cities could not have their high schools, their manual training or industrial schools, or even their kindergartens, without imposing the expense of a similar establishment on every borough and sparsely populated township in the State:” Sugar Notch Borough, 192 Pa. 349, 357. “There is no constitutional requirement of uniformity as to matters included in section 7 of art. III. That section is a prohibition against local or special laws upon certain subjects. . . . The constitutional requirement, therefore, is that such laws shall be general, not local or special, and uniformity of result is only one of the judicial tests applied to laws for the determination of their character as to generality. A law may, by classification or otherwise, produce some diversity of result and yet be general, for where the classification is based on genuine distinction, its expediency is for legislative determination:” Stegmaier v. Jones, 203 Pa. 47, 50; Com. v. Middleton, 210 Pa. 582. Where an act affects the school directors of all the townships of the State, so far as it concerns the control of contagious and infectious diseases, it is not a local or a special law: School District v. Montgomery, 227 Pa. 370. Consequently, such an act as the one before us, which concerns all incorporated districts in the State, is a general and not a local or special act.

The defendant insists that the Act of 1917 is unconstitutional, and that the Act of 1919, which is amendatory of it, must also be unconstitutional, upon the theory that an unconstitutional act cannot be amended. But if the Act of 1917 was dead for want of constitutional support when enacted, it was made alive by its amendment and re-enactment in accordance with section 6 of art. in of the Constitution, which provides for the reviving and amending of an act by its re-enactment and publication at length.

It seems to the writer that if the legislature may legislate to compel abutting property owners on streets in incorporated towns to contribute for street improvements, it may also legislate for the refunding of moneys paid by mutual mistake for such improvements. Of course, it may not pass such a law for only the City of Pottsville; such a law should be of general application wherever the power to assess properties for municipal improvements exists by virtue of general law. It also seems to the writer that if the plaintiff paid to the defendant the money in question under the mistaken belief that he was legally bound to pay it, and that the city officers accepted the money under the mistaken belief that the city was legally entitled to receive the money, then there was a mutual mistake made, and in a proper action the plaintiff could recover without the requirement of an enabling act. See Reed v. Horn, 143 Pa. 323.

In this case it is agreed by the parties that if it be our opinion that the City of Pottsville, under and by virtue of the ordinance enacted on Sept. 14, 1920, and passed in pursuance of the Act of July 5, 1917, P. L. 682, is indebted to the plaintiff for the amount of money paid by. him into the city treasury, then judgment is to be entered in the plaintiff’s favor for the sum of $442.98; but if we be of opinion that the Act of 1917 is unconstitutional as local or special legislation, and the ordinance passed in pursuance of it illegal, then judgment is to be entered in favor of the defendant. This agreement overlooks the fact that the Act of 1917 was re-enacted and amended so as to include all incorporated municipalities in the State more than a year before the ordinance in question was passed. The Act of 1917 was, therefore, not in force when the Ordinance of 1920 was passed, and the Ordinance of 1920 could be passed only by virtue of the Act of 1919. However, from the preamble of the ordinance, the casual reader would conclude that the authority for the passage of the ordinance is the Act of 1917, because the preamble, inter alia, says: “And whereas, an act of the legislature, approved the 5th day of July, 1917, P. L. 682, authorizing and empowering cities to refund to owners of property, or their heirs and assigns, the amount of the assessment paid by them under such conditions.” Reliance by the city upon the Act of 1917 for its authority in the premises was undoubtedly erroneous, because its authority at the time of the passage of the ordinance was not the Act of 1917; it was the Act of 1919. Nor was it necessary for the city, in the preamble of the ordinance, to make any reference whatever to the source of its authority for enacting the ordinance. The part of the preamble as above quoted is, therefore, a harmless error.

We think the Act of 1919 is a general law and that the Ordinance of September, 1920, is valid, and that the plaintiff is entitled to judgment in the case stated. The fact that the ordinance has been passed itself shows that the city is willing to return all money which it had no legal right to receive, but that a doubt of its right so to do makes it hesitate long enough to have its right tested and settled in this manner.

And now, Jan. 2, 1922, the prothonotary is directed to enter judgment in favor of the plaintiff for the sum of $442.98, and an exception is allowed the defendant and bill sealed..

Prom J. O. Ulrich, Tamaaua, Pas.


author: BROWNSON, J.,

text:
    Collello v. Darras et al.

      Negligence — Parent and child — Possession of air-gun by child — Statement of claim — Act of May 14,1915.

    1. In an action agrainst a father to recover damages for personal injuries alleged to have been caused by the negligent act of his minor son in the use of an air-gun, a statement of claim is insufficient which merely alleges that defendant “negligently and knowingly permitted his son to possess and use” the air-gun in question, without giving the age of the son or other particulars of the accident.
    2. Under the Practice Act of May 14, 1915, P. L. 483, the appropriate remedy for lack of specification of facts in a statement of claim is a motion to strike it off.
    Statutory demurrer to statement of claim. C. P. Washington Co., May T., 1918, No. 227.

      Hughes & Hughes and Lloyd 0. Hart, for plaintiff.

      Acheson & Crumrine, for defendant.
    Oct. 1, 1921.
   BROWNSON, J.,

The statement of claim as originally filed averred that the plaintiff was injured in consequence of the negligent and reckless use by a minor son of the defendant of an air-gun or rifle, a bullet discharged therefrom having struck the plaintiff in or about his eye. No averment of any act of negligence on the part of the defendant was made, and the only thing stated to connect him in any way with the injury was the mere fact that he is the father of the minor who did the shooting. It is clear that this statement of claim was demurrable as not showing any legal ground for holding the defendant liable, and that, if it had remained unamended, judgment would have had to be entered in defendant’s favor upon the statutory demurrer.

When the case came up for argument, the plaintiff amended the statement by adding the averment that the defendant, for a considerable time previous to the injury, negligently and knowingly permitted his son to possess and use said air-gun, and that this was the cause of the injury received by the plaintiff. In view of this attempted charge of negligence against the defendant, we do not consider that final judgment should now be entered in defendant’s favor, although we think that the averment of negligence is too vague to comply with the Practice Act of May 14,1915, P. L. 483, according to the true intent and meaning thereof. The statement of claim ought to aver the facts with as much definiteness as would be done in a bill of particulars: Enlow v. National Bank, 1 Wash. Co. Reps. 5, 8. It should show how and wherein negligence was committed. To say merely that permitting the son to have and use a gun was negligent, without stating the facts which are claimed to have caused it to amount to negligence, seems to us to be the statement of a conclusion rather than a definite averment of fact. It was held in Archibald v. Jewell, 70 Pa. Superior Ct. 247, that permitting a child to possess, control and use a gun may be pronounced negligence if the gun be not a mere toy, but a dangerous weapon, and the child be so young and immature as to be unfit to control such a weapon; but, on the other hand, it certainly could not be pronounced negligence, or even evidence of negligence, to permit a young man eighteen or twenty years old, of normal physical and mental development, who has never exhibited a reckless disposition, or the like, to have a rifle; and when the same act would be negligence in one state of facts, and not negligence in another state of facts, the statement of claim ought to aver specifically the concrete facts which are claimed to justify pronouncing it negligence in the particular case. Here, this is not done. For example, the statement is entirely silent as to the age of the defendant’s minor son, and, for all that it shows, he may have been twenty years old. But the appropriate remedy for the lack of a specification of the facts, whatever they may be, upon which the plaintiff bases his conclusion that it was negligence to permit this minor to have an air-gun, appears to us to be to ask that the statement of claim be stricken off, and not to ask for the entry of final judgment for defendant.

And now, Oct. 1, 1921, after argument and due consideration, judgment in favor of the defendant upon the statutory demurrer is denied; but the court, being of opinion that the statement of claim as amended is not so drawn as to conform to the provisions, of the Practice Act of 1915, and treating the affidavit of defence as equivalent to a motion to strike off, does hereby order that said statement of claim be and the same hereby is stricken from the record, with leave to the plaintiff to file a new statement of claim in its place.

Prom Harry D. Hamilton, Washington, Pa.


author: Fox, J.,

text:
    Commonwealth v. Frederico et al.

      New trial — Improper remarks of counsel — Practice, Q. S.

    In the trial of a criminal action, counsel for the Commonwealth, in his address to the jury, said: “On one side of this ease all of the parties are Americans, and on the other side of this case all of the parties are Italians.” The court at once stopped the argument and instructed counsel for the Commonwealth and the jury that such argument was not permissible. The court also instructed the jury that there should be no favor or prejudice on one side or on the other because of the nationality of the parties or witnesses, and that they should not be influenced by such argument: Held, on motion for new trial, that the rights of defendants were properly guarded. Motion overruled.
    Motion for a new trial. Q. S. Dauphin Co., June Sess., 1921, Nos. 98 and 99.

      W. Justin Carter, for motion; Maurice R. Metzger, contra.
    Jan. 25, 1922.
   Fox, J.,

In the above stated cases, one motion in both cases was made by the defendants for a new trial.

With respect to the first four reasons therefor, there was sufficient evidence produced by the Commonwealth to justify the jury in finding the defendants guilty in manner and form as they stood indicted, and the verdict was not against the charge of the court.

With respect to the fifth and sixth reasons, that the counsel on behalf of the Commonwealth, in his argument, said to the jury, “on one side of this case, all of the parties are Americans, and on the other side of this ease, all of the parties are Italians,” the court at once stopped the argument, and instructed counsel for the Commonwealth and the jury that such argument was not permissible, and put a stop to it, and carefully instructed the jury that there should be no favor or prejudice on one side or on the other because cf the nationality or birthplace of any of the parties or witnesses, and that the jury should not be influenced by any such argument, statement or thought.

We think this was properly and completely cared for by the court, and that the jury was uninfluenced by the remark. The remark was improper and should not have been made, but we think the reprimand and charge of the court completely eliminated from the jurors’ minds any favor or prejudice which may have been created by the remark.

The motion is, therefore, overruled, and the district attorney is directed to call the defendants for sentence.

From George K. Barnett, Harrisburg, Pa.