et al., 45 Pa., 372, the question was as to the liability of the county to pay costs after there had been a verdict of guilty against a defendant, who was pardoned before sentence." See, also, Wright. Donaldson, 158 Pa., 88. In the case of Commonwealth v. Biddle (No. 1), 200 Pa., 640, three persons, namely, John Biddle, Edward Biddle and Walter Dorman, were charged with the crime of murder. Two of them, John Biddle and Edward Biddle, were indicted jointly, and Dorman entered a plea of guilty. On the separate trial of John Biddle, the Court, after the Commonwealth's case had closed, permitted it to be opened, and the record of the plea of guilty entered by Dorman to be offered in evidence. On appeal, this action of the trial judge was sustained. Suppose the law to be as contended for by the learned counsel for the defendant. In a case where it became, or was thought, necessary to prove the guilt of the principal by the record, while waiting the final judgment, months might elapse before the accessory could be tried. Upon this trial, the record was admitted solely as evidence of the guilt and conviction of the principal. It was not conclusive, but it went with all the other evidence to the jury to enable them to ascertain that fact.

The case of Witmer . Eshleman, 18 Lanc. Law Review, 329, which was decided by us, was an entirely different proposition. In the first place, it was a bill in equity. Citing from 2nd Wharton on Evidence, Section 831, the Court said: "As a general rule, a verdict cannot be put in evidence, unless judgment has been entered upon it, and then it binds by estoppel only parties and privies. A verdict without judgment is inadmissible for this purpose." The reference was to cases of the character of that which was being tried, and, as applicable to such, the doctrine is sound. The distinction has been plainly pointed out in Commonwealth v. McDermot, supra, and it is there indicated where each rule applies.

A complaint is made that Tassone was not permitted to answer a ques

As

tion "whether he did not kill Toney Collata." Tasone had been called as a witness by the Commonwealth and had been questioned as to what took place between him and the defendant and his associates before Collata was killed. He was not examined at all as to the killing (see pages 173 to 177). On crossexamination, counsel for the defendant asked the witness the above question, and the Court excluded it on the ground that it was not cross-examination. the record discloses this to be true, it follows that, if the rules of evidence are to be observed, the objection was properly sustained. The defendant had no right to thus introduce any part of his defense. But it is manifest, I think, that the exclusion was not deemed of much importance by counsel until after the trial, because no attempt was made to call Tassone as a witness on the prisoner's behalf to prove this fact, although the opportunity to do so afterwards offered itself. Besides this, as a matter of fact, counsel, in addressing the jury, virtually, if not actually, admitted that Tassone had fired the fatal shot.

Another objection is, that the Court received the verdict containing a recommendation of mercy, as returned by the jury. The question which it was the duty of the jury to ascertain was, whether the defendant was guilty or not guilty of the offense charged in the indictment. This they did when they rendered their verdict. The balance of the finding was, of course, surplusage. It is not in the power of the Court to give effect to a recommendation of mercy in such a case; but such a recommendation may prove useful in an application to the Board of Pardons for the mitigation of the sentence. was no doubt what was intended by the jury. The verdict had then been agreed upon. and the jury had performed its whole duty, and to have reinstructed them at that time, without any request from them, and to have sent them back to the jury room for a re-consideration of the case, might certainly have now proven the subject of another and more serious complaint. Deeming that I had no right to inter

This

That there was no consideration for the mortgage by the original parties to it.

That the assignment from Anderson to Fowkes was simply as collateral security to protect him in the endorsement of the note of a third party, which note was for $1,500. This note was never paid by Fowkes, but has been paid by the complainant since the scire facias on the mortgage was issued.

That Anderson when, so far as the record shows, he was no longer the owner of the mortgage, agreed in writing to enter satisfaction of the mortgage upon payment of costs by making an entry of satisfaction, and at the same time execute a power of attorney to David R. Brewer, authorizing him to enter satisfaction on the margin of the mortgage upon receipt of the principal, interest and cost of the same. The mortgage was never satisfied.

The real estate was owned by Emanuel Kern to whom it was conveyed by William C. Anderson on February 20, 1897. On February 18, 1901, he conveyed it to Daniel R. Brewer. On May 20, 1901, said Brewer conveyed it to the Conestoga Electric Light and Power Company. It was sold by the sheriff as the property of the latter and conveyed by him to the complainant on August 24, 1907. All these deeds are on record.

When Brewer became the owner of it he executed a deed of trust in which he declared that he held title in the tract in trust for Anderson, and that he would at any time convey the property to him, or if he sold it would pay him one-half of the proceeds of sale.

On June 11, 1901, after conveyance of the property to the Conestoga Electric Light and Power Company, William Anderson received 1,550 shares of the capital stock of said company in full satisfaction and payment for the real estate in question clear of encumbrances, and gave a receipt to said David R.

this Court, and obtained an injunction against Kern and Anderson restraining any proceeding to collect the said mortgage, and asking for a decree that the mortgage be satisfied. This suit is pending and undetermined.

That John E. Malone holds a mortgage as agent in trust for the Pennsylvania Water and Power Company.

That William Anderson on May 28, 1901, when the premises were conveyed to the Conestoga Electric Light and Power Company, acknowledged there was nothing due on the mortgage, and agreed that he would enter satisfaction at any time, and subsequently testified in a suit brought to November Term 1904 that the mortgage was paid and that nothing was due thereon, and agreed that the same should be satisfied, and that it was with the knowledge of these facts that complainant purchased the property in August, 1907.

All these allegations of fact raise but the single question, whether there is anything due on the mortgage. Whether there was any consideration passed between Anderson and Kern is a matter with which the complainant is not concerned, as it was not done to defraud him. Whether the assignment by Fowkes to Anderson was as collateral security or absolute as it appears on its face: whether, if it was transferred as collateral security, the question of how much, if anything. Fowkes was pelled to pay or remains liable for; whether, if it was assigned as collateral security, Anderson has been paid his interest in it by the stock of the Conestoga Electric Light and Power Company, or is otherwise estopped from claiming anything to be due upon it; and whether the present holder is bound by these matters, are all questions which must be passed upon in ascertaining what, if anything, is due on the mortgage, and can be as well tried and decided in the scire facias as on a trial in a court of equity upon this bill.

It is not questioned that courts of

equity have jurisdiction to interfere with proceedings at law, but this power should be exercised with great care. Chief Justice Mitchell says, in Denny v. Fronheiser, 207 Pa. 174, "The jurisdiction of equity to restrain actions at law is too well established to require discussion. . . . But the limitations of interference by equity are as well settled as the jurisdiction itself. The case must fall within some one or more of the recognized categories of fraud, accident or mistake." This is repeated in Kauffman. Liggett, 209 Pa. 87. Where the grounds upon which the injunction was asked to restrain further proceedings in an action at law might have been fully taken advantage of in such action, equity will not interfere: Olmsted's Appeal, 85 Pa. 284; Hogg v. Matlack, 8 C. C. 657; Kraber's Appeal, 2 York 55; Fallon v. Remington, 15 Phila. 272. In Brush Electric Light Company's Appeal 114 Pa. 574, Justice Gordon says, "Equitable jurisdiction does not depend on the want of a common law remedy, for, while there may be such a remedy, it may be inadequate to meet all the requirements of a given case, or to effect complete justice between the contending parties, hence the existence of chancery powers must often depend on the sound discretion of the court."

To oust jurisdiction in equity, the remedy at law must be complete; that is, it must attain the full end and justice of the case; it must reach the whole mischief and secure the whole right of the party in a perfect manner at the present time, and in the future: Penna Co. v. Franklin Fire Insurance Co., 181 Pa. 40. A bill in equity may stand solely on the ground that it is the most convenient remedy. This is especially so where the remedy afforded by a court of law is obviously inconvenient and of doubtful adequacy: Conemaugh Gas Co. v. Jackson Farm Gas Co., 186 Pa. 443.

That a defense involves complicated accounts too complicated to be passed on by a jury is not a ground for equitable interference; Laughlin v. Finley, 5 W. N. 144.

,

Applying these cases to the question involved here, we can find nothing that will justify the interference of a court of equity. of equity. There is no allegation in the bill of any fraud or accident or mistake. The complainant has as adequate, complete and convenient remedy to show that there is nothing due on the mortgage in the trial of the sci.-fa. as he can possibly have in a trial on this bill in equity. We must, therefore, hold that this is not a case for equitable interference, and that we have no jurisdiction to grant the relief prayed for by the complainant in his bill. We, therefore, sustain the demurrer and dismiss the bill at plaintiff's costs.

Orphans' Court.

Estate of Annie C. Betz, decd.

Testamentary capacity.

A testatrix is not incompetent to make a will, because she was subject to periodical nervous attacks, and outbreaks of violent tem

per and her physician testifies that "she died from exhaustion due to insanity," where at

the time when she wrote the will she was able to attend to business and financial matters requiring judgment.

Appeal from probate of will, O. C. of Lancaster County, November 1914, No. 44.

B. F. Davis for appeal.

B. Frank Kready and B. C. Kready, contra.

March 11, 1915. Opinion by SMITH, P. J.

This is an appeal by Philip Stapf, and The Peoples Trust Company, guardian of Leonard Stapf, Charlotte Stapf and Charles Stapf, nephews and niece of the testatrix, "from the decision of the Register of Wills of the County of Lancaster in the above estate.' pears that the Register admitted to probate the will of the decedent and issued letters testamentary thereon. It is presumed that here had been a caveat.

It ap

An