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LANCASTER LAW REVIEW.ing it, that it is without merit.

ever, concluded, after carefully examin

Quarter Sessions.

In i Bouvier's Law Dictionary, page Vol. XXXII.) FRIDAY, MAR. 19, 1915. (No. 20 435, conviction is defined as “that legal

proceeding of record which ascertains the guilt of the party, and upon which the sentence or judgment is founded." And in 4 Blackstone's Commentaries, Chapter 27, page 361, the learred textwriter says: “If the jury find him (the

defendant) guilty, he is then said to be Commonwealth v. Toney Vitale. convicted of the crime whereof he EvidenceVerdict of guiltyMurder, stands indicted, which conviction may Recommendation of mercy.

accrue two ways,-either by his con

fessing the offense and pleading guilty, A verdict of guilty against a principal is

or by his being found so by the verdict a conviction, the record of which may be ad- of his country." In Holmes v. Committed in evidence on the trial of an accessory monwealth, 25 Pa. 221, it is said that, although no judgment and sentence has been "where the record shows a conviction entered.

It is not error to receive a verdict of guilty of the principal before the trial of the of murder with a recommendation of mercy. indictment against the accessory, this Such a recommendation is surpiusage, though Court will presume that legal proof it might prove useful in an application to the

was given to the jury of that convicboard of pardons and may have been so intended.

tion, upon the trial of the accessory.”

And in Wilmoth 2. Hensel, 151 Pa. Indictment for murder.

for a 200, where it was contended that the new trial. O. and T. of Lancaster Co. conviction was only complete when it April Term 1914, No. 28.

was followed by the judgment of the

Court, it was said: "In common parJohn E. Malone for rule.

lance, a verdict is called a conviction. John M. Groff, District Attorney, which was a confession of guilt by the

There was

a plea of guilty, contra,

defendant." In Buck CommonFebruary 1, 1915. Opinion by LANDIS, wealth, 107 Pa., 486, Mr. Justice PaxP.J.

son said: "The authorities show that

the guilt of the principal felon may be Most of the reasons filed in the proved by the record of his conviction, above case are practically covered by or by evidence aliunde: 2 Starkie on the opinion this day filed in the case Evidence. 9. Yet even the record of of Commonwealth Augustine Vitale; the conviction is only prima facie evi(see preceding case but a few of them dence. As to the accessory, it is res will be specially considered. Thus, the inter alios acta.In the recent case of third

reason assigned reads: "The Commonwealth v. McDermot (No. 2), Court erred in permitting Jacob R. 224 Pa., 363, Mr. Justice Brown disGroff, Clerk of the Quarter Sessions, cussed this same question. He said: to testify as to the record in the case “The word 'conviction' has a popular of the Commonwealth against Rocco and a legal meaning In common parTassone, and read the verdict to the lance, a verdict of guilty is said to be jury, no judgment or sentence having a conviction : Smith 2. Com., 14 S. & been entered upon the verdict in that R., 69; Wilmoth vs. Hensel, 151 Pa., case." Upon the argument, the learned 200; and this popular meaning has counsel for the defendant chiefly dis- been given to it when rights other than cussed and rested upon this proposition, those of the one who has been found and I have, therefore, given it more guilty have been before the Courts. than ordinary attention. I have, how

In York County v. Dalhousen,

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et al., 45 Pa., 372, the question was tion "whether he did not kill Toney as to the liability of the county to pay Collata.” Tasone had been called as a costs after there had been a verdict of witness by the Commonwealth and had guilty against a defendant, who was been questioned as to what took place pardoned before sentence." See, also, between him and the defendant and his Wright 2. Donaldson, 158 Pa., 88. In associates before Collata was killed. He the case of Commonwealth 7. Biddle was not examined at all as to the kill(No. 1), 200 Pa., 640, three persons, ing (see pages 173 to 177). On crossnamely, John Biddle, Edward Biddle examination, counsel for the defendant and Walter Dorman, were charged with asked the witness the above question, the crime of murder. Two of them, and the Court exclu !ed it on the ground John Biddle and Edward Biddle, were that it was not cross-examination. As indicted jointly, and Dorman entered a the record discloses this to be true, it plea of guilty. On the separate trial follows that, if the rules of evidence are of John Biddle, the Court, after the to be observed, the objection was propCommonwealth's case had closed, per-erly sustained. The defendant had no mitted it to be opened, and the record right to thus introduce any part of his of the plea of guilty entered by Dorman defense. But it is manifest. I think, to be offered in evidence. On appeal, that the exclusion was not deemed of this action of the trial judge was sus- much importance by counsel until after tained. Suppose the law to be as con- the trial, because no attempt was made tended for by the learned counsel for to call Tassone as a witness on the pristhe defendant. In a case where it be- oner's behalf to prove this fact, although came, was thought, necessary to the opportunity to do so afterwards ofprove the guilt of the principal by the fered itself. Besides this, as a matter record, while waiting the final judg- of fact, counsel, in addressing the jury, ment, months might elapse before the virtually, if not actually, admitted that accessory could be tried. Upon this | Tassone had fired the fatal shot. trial, the record was admitted solely as Another objection is, that the Court evidence of the guilt and conviction of received the verdict containing a recomthe principal. It was not conclusive, mendation of mercy, as returned by but it went with all the other evidence the jury. The question which it was to the jury to enable them to ascertain the duty of the jury to ascertain was, that fact.

whether the defendant was guilty or The case of Witmer 7'. Eshleman, 18 not guilty of the offense charged in the Lanc. Law Review, 329, which was de- indictment. This they did when they cided by us, was an entirely different rendered their verdict. The balance of proposition. In the first place, it was the finding was, of course, surplusage. a bill in equity. Citing from 2nd Whar- | It is not in the power of the Court to ton on Evidence, Section 831, the Court give effect to recommendation of said: “As a general rule, a verdict can- mercy in such a case; but such a recomnot be put in evidence, unless judgment mendation may prove useful in an aphas been entered upon it, and then it plication to the Board of Pardons for binds by estoppel only parties and priv- the mitigation of the sentence. This ies. A verdict without judgment is in- no doubt what was intended by admissible for this purpose.' The ref- the jury. The verdict had then been erence was to cases of the character of agreed upon. and the jury had perthat which was being tried, and, as ap- formed its whole duty, and to have replicable to such, the doctrine is sound. instructed them at that time, without The distinction has been plainly pointed any request from them, and to have out in Commonwealth 2. VcDermot, sent them back to the jury room for supra, and it is there indicated where a re-consideration of the case, might each rule applies.

certainly have now proven the subject A complaint is made that Tassone of another and more serious complaint. was not permitted to answer a ques- | Deeming that I had no right to inter

a

was

fere with the verdict, I ordered it rec-, which the plaintiff is entitled to adequate orded. No authority has been brought relief, and that the complainant has an to my attention indicating that a dif- adequate remedy at law for all matters ferent course should have been pur- set forth in his bill. These reasons tosued.

gether raise the question of the jurisdicI have taken up with care all the tion of a court of equity to entertain reasons, and do not find such error in and pass upon the matters contained in the record as would warrant a

new the bill. trial. If the testimony was believed, The relief prayed for in the bill is there was ample evidence to warrant a that John E. Malone, one of the defendconviction. I do not think the verdict ants, shall be restrained from further should be set aside.

prosecuting a writ of scire facias which The reasons for a new trial are now he has issued on the mortgage which all overruled, and the rule to show is a lien on property now owned by the cause is hereby discharged.

complainant; that the said John E. Malone Rule discharged.

with others named as defendants, who NOTE-See preceding case.

at one time had an interest in the mortgage, be restrained from collecting the same; that the various assignments of

the mortgage be cancelled and that the Coinmon Pleas--Equity. Other and general relief is also asked

mortgage be declared to be satisfied. for. The facts upon which the plaintiff relies to obtain a favorable decree on

these prayers, as stated in his bill, are Davis v. Malone et al.

as follows: Sci. fa. on mortgageInjunction.

On March 3, 1899, Emanuel Kern,

who then owned the land now owned An injunction will not be allowed to re- by the plaintiff, gave a mortgage to a sci, fa. on a mortgage, where the question William C. Anderson, his predecessor in raised as to what, if anything, is due on the title, for the sum of $5,000, payable mortgage, involving the validity of transfers, two years after date with interest at 6 whether they were absolute or as collateral and the amounts of considerations and pay

per cent.

It is recorded in Mortgage as well be decided in the scire

Book 83, page 81. facias proceedings as in equity, there being On May 12, 1900, William Anderson no allegation of fraud, accident or mistake. by assignment transferred said mortBill in equity for injunction, etc.

De- gage to said James G. F. Fowkes, which murrer C. P., Lancaster County, sitting assignment is also recorded. in equity. Equity Docket No. 6, page Kenworthy, trustee in bankruptcy of

On September 11, 1913, Joseph W. 20.

James G. F. Fowkes, by assignment John E. Malone and John M. Groff, transferred said mortgage to John E. for demurrer.

Malone, who on September 20, 1913, B. F. Davis, C. E. Montgomery and son as defendant and the complainant

issued a sci-fa., naming William AnderCoyle & Keller, contra.

as terre tenant, to October Term 1913, January 9, 1915. Opinion by Hass-No. 36. The assignment to Malone is

recorded. LER, J.

On January 13, 1914, William AnderA demurrer has been filed to this bill son transferred all his interest in the by Joseph W. Kenworthy. Trustee in said mortgage to Joseph Kenworthy by bankruptcy of James G. Fowkes, one assignment duly recorded, and on Januof the defendants. The first two reasons ary 29. 1914, said Kenworthy transor grounds of demurrer are that the ferred it to said Malone by an assignbill fails to set forth any grounds upon ment which has been duly recorded.

ments, can

to it.

That on August –, 1912, James G. Brewer; that said stock was in full payFowkes transferred said mortgage to ment of the "water power tract.” John M. Groff and delivered the assign- On April 10, 1899, Adolph Segal, ment to him, which is still in his pos- and others, filed a bill in equity in session, though unrecorded.

this Court, and obtained an injunction That there was no consideration for against Kern and Anderson restraining the mortgage by the original parties any proceeding to collect the said mort

gage, and asking for a decree that the That the assignment from Anderson mortgage be satisfied. This suit is pendto Fowkes was simply as collateral se- ing and undetermined. curity to protect him in the endorse

That John E. Malone holds a mortment of the note of a third party, which gage as agent in trust for the Pennsylnote was for $1.500. This note was vania Water and Power Company. never paid by Fowkes, but has been That William Anderson on May 28, paid by the complainant since the scire 1901. when the premises were conveyed facias on the mortgage was issued. to the Conestoga Electric Light and

That Anderson when, so far as the Power Company, acknowledged there record shows, he was no longer the was nothing due on the mortgage, and owner of the mortgage, agreed in writ- agreed that he would enter satisfaction ing to enter satisfaction of the mortgage at any time, and subsequently testified upon payment of costs by making an in a suit brought to November Term entry of satisfaction, and at the same 1904 that the mortgage was paid and time execute a power of attorney to that nothing was due thereon, and David R. Brewer, authorizing him to agreed that the same should be satisenter satisfaction on the margin of the fied, and that it was with the knowledge mortgage upon receipt of the principal, of these facts that complainant purinterest and cost of the same. The i chased the property in August, 1907. mortgage was never satisfied.

All these allegations of fact raise but The real estate was owned by Eman- the single question, whether there is uel Kern to whom it was conveyed by anything due on the mortgage. Whether William C. Anderson on February 20, there was any consideration passed be1897. On February 18, 1901, he con- tween Anderson and Kern is a matter veyed it to Daniel R. Brewer. On May with which the complainant is not con20, 1901, said Brewer conveyed it to cerned, as it was not done to defraud the Conestoga Electric Light and Power him. Whether the assignment by Fowkes Company. It was sold by the sheriff to Anderson was as collateral security as the property of the latter and con- or absolute as it appears on its face; veyed by him to the complainant on whether, if it was transferred as colAugust 24, 1907. All these deeds are lateral security, the question of how on record.

much, if anything. Fowkes was comWhen Brewer became the owner of pelled to pay or remains liable for; it he executed a deed of trust in which whether, if it was assigned as collateral he declared that he held title in the security. Anderson has been paid his tract in trust for Anderson, and that interest in it by the stock of the Conehe would at any time convey the prop- stoga Electric Light and Power Comerty to him, or if he sold it would pay pany, or is otherwise estopped from him one-half of the proceeds of sale. claiming anything to be due upon it;

On June 11, 1901, after conveyance and whether the present holder is bound of the property to the Conestoga Elec- by these matters, are all questions which tric Light and Power Company, Wil- must be passed upon in ascertaining liam Anderson received 1,550 shares of what, if anything, is due on the mortthe capital stock of said company in full gage, and can be as well tried and desatisfaction and payment for the real cided in the scire facias as on a trial estate in question clear of encumbrances, in a court of equity upon this bill. and gave a receipt to said David R. It is not questioned that courts of equity have jurisdiction to interfere with ! Applying these cases to the question proceedings at law, but this power involved here, we can find nothing that should be exercised with great care. will justify the interference of a court Chief Justice Mitchell says: in Denny of equity. There is no allegation in Fronheiser, 207 Pa. 174, "The jurisdic- the bill of any fraud or accident or tion of equity to restrain actions at law mistake. The complainant has as adeis too well established to require discus- quate, complete and convenient remedy sion. ... But the limitations of in- , to show that there is nothing due on terference by equity are as well settled the mortgage in the trial of the sci.-fa. as the jurisdiction itself. The case must as he can possibly have in a trial on fall within some one or more of the this bill in equity. We must, therefore, recognized categories of fraud, accident hold that this is not a case for equitor mistake." This is repeated in Kauff- able interference, and that we have no man 2. Liggett, 209 Pa. 87. Where jurisdiction to grant the relief prayed the grounds upon which the injunction for by the complainant in his bill. We, was asked to restrain further roceed- therefore, sustain the demurrer and disings in an action at law might have miss the bill at plaintiff's costs. been fully taken advantage of in such action, equity will not interfere: Olmsted's Appeal, 86 Pa. 284; Hogg v. Matlack, 8 C. C. 657; Kraber's Appeal, 2 Orphans' Court. York 55; Fallon v. Remington, 15 Phila. 272. In Brush Electric Light Company's Appeal 114 Pa. 574, Justice Gor

Estate of Annie C. Betz, decd. don says, “Equitable jurisdiction does not depend on the want of a common law

Testamentary capacity. remedy, for, while there may be such a remedy, it may be inadequate to meet will

, because she was subject to periodical

A testatrix is not incompetent to make a all the requirements of a given case, or nervous attacks, and outbreaks of violent temto effect complete justice between the per and her physician testifies that “she died contending parties, hence the existence from exhaustion due to insanity,” where at of chancery powers must often de- the time when she wrote the will she was able

to attend to business and financial matters pend on the sound discretion of the

requiring judgment. court."

To oust jurisdiction in equity, the Appeal from probate of will, 0. C. remedy at law must be complete; that of Lancaster County, November 1914, is, it must attain the full end and jus- No. 44. tice of the case; it must reach the

B. F. Dar'is for appeal. whole mischief and secure the whole right of the party in a perfect manner B. Frank Kready and B. C. Kready, at the present time, and in the future: contra. Penna Co. 7. Franklin Fire Insurance Co., 181 Pa. 40. A bill in equity may

March 11, 1915. Opinion by SMITH, stand solely on the ground that it is the most convenient remedy. This is This is an appeal by Philip Stapf, and especially so where the remedy afforded The Peoples Trust Company, guardian by a court of law is obviously incon- of Leonard Stapf, Charlotte Stapf and venient and of doubtful adequacy: Charles Stapf, nephews and niece of Conemaugh Gas Co. 2. Jackson Farm the testatrix, "from the decision of the Gas Co., 186 Pa. 443.

Register of Wills of the County of That a defense involves complicated Lancaster in the above estate.” It apaccounts too complicated to be passed pears that the Register admitted to proon by a jury is not a ground for equit- bate the will of the decedent and issued able interference; Laughlin v. Finley, letters testamentary thereon. It is pre5 W. N. 144.

sumed that here had been a caveat. An

P.J.

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