which she had received, and it was confirmed. In Bixler v. Kunkle, 17 S. & R., 298 (304), we quote from the opinion of Bradford, J.: "This release, having been made by cestui que trust to the trustee, will be operative for nothing more than what has been actually paid. Executors cannot be allowed to purchase in the trust fund for their benefit. Trustees must be kept within the line of their duty. A court of equity watches the conduct of a trustee with jealousy; and if he compounds debts or mortgages, or purchases them in at a discount, he shall not be suffered to turn the speculation to advantage. 1 Johns Ch. Rep., 22-36. The precise amount of the fund, at the time the release was executed, and what more was to be expected afterwards, was within the knowledge of the trustees; 'And they cannot be allowed to use the information they obtain as trustees to purchase in the trust fund for themselves.' 3 Atk., 37. Courts will not construe a release as vesting any beneficial interest in the trustees. 1 Serg. & Rawle, 279, 280; I Vez., 9; 4 Vez., 129; 2 Fonb. Eq., 189.” "If an executor obtains a release from the guardian of a minor, on the payment of a less sum than is due to the minor out of the estate, the release is inoperative, except for the money actually paid. The executor stands in the relation of a trustee for the minor, and has no right to speculate upon his ignorance or his necessities." Witman and Geisinger's Appeal, 28 Pa., 376. As to the share due the other appellee, practically the same question arises, although the circumstances are somewhat different. The legatee, instead of executing a release, assigned his legacy to an attorney acting for the executor and for his wife, the residuary legatee. The full amount was not paid to him, but a deduction made. This transaction would have been perfectly legitimate if the assignee would have been a disinterested third party, but being the representative of the executor and his wife, the matter differs not from one in which they would have directly dealt. The attorney testified that he merely advanced the money for them. He took the transfer to himself to avoid any risk. The impression the transaction made on the trial court below is shown by the statement made in the examination of the assignee: "But for the trustee to escape paying in full by mere transfer to you it would not seem on its face quite exactly as you would want it to appear." The whole transaction appears to have been an indirect way of escaping the payment in part of the amount which was justly due the legatee, and which had been duly adjudged to him. We concur in the conclusion reached by the lower court, and the appeal is dismissed at the cost of the appellant. Common Pleas--Law'. Ringler v. Bushong. Reward for arrest and conviction-Who entitled to. One who telegraphs to a sheriff in another state to arrest a party accused of crime, and brings the prisoner to trial and conviction is entitled to a reward offered for the arrest and conviction of the guilty party. One who merely furnished information which assisted the sheriff in making the arrest is not entitled to any part of such reward. Rules for a new trial and for judgment n. o. v. C. P. of Lancaster County, August Term 1913, No. 80. Chas. W. Eaby and John M. Groff, for defendant and rule. H. Frank Eshleman, contra. March 27, 1915. Opinion by HASSLER, J. On December 30, 1912, the County Commissioners of this county offered a reward as follows: "The County Commissioners increase the reward for the arrest and conviction of the persons who committed the murderous assault on Patrick Rooney on the night of December 17, 1912, from $100 to $500." A reward of $100 was offered on December 19, 1912, for the same purpose. could one be entitled to that reward who neither captured nor delivered him? Admitting, then, that the plaintiff gave the sheriff actual information as to where the culprit could be found, and that he went with him and acted as one of his posse, yet on that officer fell the duty of arrest, and the plaintiff was relieved of all responsibility." The Court intimated that if the sheriff had not been bound by law to make the arrest, and had been acting as the instrument or agent of McDonald, the latter might have some claim to the reward. After the arrest of Chester Mayhew | his capture and delivery. How, then, and Harry Woods, and their conviction of the offence, the County Commissioners paid the amount of the reward into this Court, because it was claimed by both Vernon Ringler, a constable and police officer of Oxford Borough, Pa., and Walter G. Bushong, Chief of Police of this city. This issue was framed to ascertain which of them was entitled to the reward, or any portion of it. The jury awarded $75 to Vernon Ringler, who is the plaintiff in the issue, and $425 to Walter G. Bushong, who is defendant. We are now asked to enter judgment for the defendant for the whole amount of the reward non obstante veredicto. As the defendant at the trial submitted a point for binding instructions in his favor for the whole reward, which we refused, we have power to do as requested, and must enter such judgment as should have been entered on the evidence: Act of 22 April, 1905, P. L. 286, Sec. 1. The uncontradicted testimony at the trial showed that the defendant arrested Harry Woods and procured the conviction of both Chester Mayhew and Harry Woods. As to the arrest of Chester Mayhew both the parties to this issue claim to have been instrumental in accomplishing it. We will consider the testimony after first referring to the law applicable to the case. It will be observed that the reward was offered for the arrest and conviction of the persons who committed the offence. In McDonald v. Juniata County, 122 Pa., 115, a reward was offered for the conviction and delivery to the jail of an escaped prisoner. J. M. McDonald gave the sheriff correct and definite information as to the whereabouts of the prisoner, and accompanied him in making the arrest. He claimed the reward, and in the Court below obtained a verdict for it. In reversing the court below, the judge who delivered the opinion of the Supreme Court said: "A mere reading of this paper, the offer of a reward,' settled the whole controversy; the warrant was not offered for information as to the prisoner's whereabouts, but for 6 In Oldfield v. Reading, 18 D. R., 833, the Court divided the reward between parties who furnished information where it was offered for information leading to the arrest and conviction of perpetrators of the crime. Judge Endlich says: "We must, therefore, treat the offer of the reward as being, not for the apprehension, etc., of the guilty party, but for the furnishing of information leading to his apprehension. This distinction is pointed out as a material one in Juniata County v. McDonald, 122 Pa., 115; Com. v. Turner, 17 D. R., 794; Com. v. Taylor, 17 D. R., 10. If, under the offer of reward, the decisive matter was that of the arrest and conviction of Ryan, possibly the plaintiff's claim to the whole reward would, under Reinhart v. Lanc., 18 W. N. C., 364, have a technical ground to stand on, or at least the claim of certain of the defendants to participate in it might have to be eliminated.' In Com. . Taylor, 17 D. R., 10, it was held that the person who furnished the information was not entitled to any portion of the reward offered for the arrest of the criminal. In Rinehart v. Lancaster City, 6 Atlantic, 91, a case from this county, the Mayor of this city. offered a reward of $500 for the arrest and conviction of any party setting fire to buildings, &c. A stable was set on fire, and B was convicted of the crime and sentenced. In an action by A against the city to recover the reward, it appeared that A had known nothing about the attempt to fire the building until the owner thereof had informed him of it, when he joined the constable | an agent, effected the arrest, and in supand others in the pursuit at the instance port of it offers the following testimony,. of the owner, and identified B as the none of which is contradicted: On Deperson who was at the building about cember 30, 1912, the defendant_telethe time that the paper and matches graphed to Chief of Police of Fredwere discovered therein. It was held ericksburg, Virginia, which is surby the Supreme Court, in affirming the rounded by Spottsylvania County, for court below, that A was not entitled to the name of the sheriff of that county. the reward on the ground that he had Upon receiving his name, he, on the not been principally instrumental in or same day, telegraphed the sheriff, R. M. the cause of B's arrest, not having dis- Waller, covered any evidence, or conducted the prosecution, but had simply joined at request in the capture of the supposed criminal. From these cases we arrive at the conclusion that the plaintiff is not entitled to any portion of the reward unless he actually made the arrest, or did so through an agent. Furnishing information does not entitle him to any portion of it. The actual arrest was made by R. M. Waller, sheriff of Spottsylvania County, Virginia, and the question for determination is whether he was acting as the instrument or agent of the plaintiff or the defendant, or for himself. It appears in the testimony that the plaintiff, having reason to believe that Chester Mayhew had gone to Virginia on January 1, 1913, telegraphed to Granite Springs, Virginia, asking for information of Chester Mayhew who was wanted in Pennsylvania for murder. This information was conveyed to R. M. Waller, the sheriff, who made the arrest, and it was testified that because of this information he changed his course in looking for Mayhew, and finally arrested him. This information was not sent to Waller direct, but was received by a party named Harris. When Mayhew was arrested Waller did not notify Ringler of the fact, but a third party did so, and Ringler went to Virginia, but did not get the prisoner. Waller testified that he was not acting for the plaintiff in making the arrest, and that he had had no communication of any kind with him. None of this testimony is contradicted, and it is upon it that the plaintiff rests his claim for a portion of the reward. The defendant claims that he, through to arrest Chester Mayhew, whom he fully described, on the charge of murder. On December 31, Waller telegraphed to Bushong, acknowledging the receipt of the telegram, and that he would investigate at once. On the same day Bushong telegraphed to Waller twice giving him further information.. On January 2, Waller telegraphed to Bushong that he had arrested Mayhew, and that Ringler was there for him.. On the same day the District Attorney telegraphed Waller not to give Mayhew to any officer but Bushong, the defendant. The same day Waller telegraphed. the District Attorney and Bushong, the defendant : Will hold the prisoner for Bushong; prisoner will return without requisition." Sheriff Waller says he was acting for the defendant in making the arrest and that he knew no one else in the transaction, not having had any communication with the plaintiff. 66 From this testimony we must find that the defendant made the arrest through the agency of Sheriff Waller, who was not acting for the plaintiff, not having had any communication with him. The most that can be said in favor of the plaintiff is that he furnished information which assisted Waller in making the arrest. This, however, was not sufficient to entitle him to a portion of the reward, as it was offered for the arrest and conviction of Mayhew and Woods, and not for information leading to their arrest. We should, therefore, have affirmed defendant's point asking us to instruct the jury that he was entitled to the whole reward, and must now enter judgment for the defendant, for the whole amount of the reward paid into Court, non obstante veredicto. The rule for a new trial is discharged. In a suit on a promissory note for an unpaid balance of a subscription for stock of the plaintiff, a coal mining company, an affidavit of defense is sufficient which avers that the defendant subscribed for the stock on the false representation that $7,200 would secure necesasry machinery and make the stock have par value and pay dividends whereas the $25, 000 subscribed was squandered and not used to take out coal and the stock was of no value, and the company would not be in a position to market coal until $30,000 or $40,000 more was spent. The rules of law relating to written instruments cannot be strictly applied at this time, if, from the facts alleged, a sufficient defense is presented. A false representation must relate to an existing fact but a statement apparently only of intention, purpose or opinion, may amount to a statement of fact as where a person fraudulently misrepresents his intention in doing a particular act to the damage of another. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster Co. January Term, 1915, No. 30. IV. U. Hensel, for rule. H. Frank Eshleman, contra. March 20, 1915. Opinion by LANDIS, P. J. The cause of action, as set forth in plaintiff's statement, is a promissory note, given to the plaintiff by the defendant. It reads as follows: plaintiff now claims that there is due and owing to it upon the note the sum of $1,250.00, with interest. There is no dispute as to the execution of the note, for the defendant admits that his signature appended thereto is genuine. He asserts that he subscribed for $5,000.00 of the stock of this company, for which he was to pay $4.000.00 in cash and $1,000.00 was to be a bonus. He says he has already paid $2,750.00, and now refuses to pay the balance, because misrepresentations were made to him, whereby he was induced to subscribe for the stock and give his note. It appears that H. D. Stimson and others secured a lease from the Estate of Penrose for a certain tract of land, containing six hundred acres, situated in Carbon County, in this State. which contained deposits of anthracite coal. A corporation was formed by them, under the name of The Penn Forest Coal Company, for the purpose of mining and selling the coal which The capital stock of the company was should be procured from this land. $250,000.00, and the whole of it was issued in consideration of the lease holding rights. The company had opened a shaft, about four by five feet. down to a distance of about forty feet, and then, upon the advice of the State Mining Inspectors, they enlarged the size of the shaft to six by ten feet, and sunk it about one hundred feet. There they discovered a vein of coal known as the Buck Mountain Vein. About this time H. D. Stimson, who controlled the stock and who was the president and manager of the company, represented to the defendant and others. that the sum of $7,200.00 would, as the mine was opened, secure the machinery needed and place the company in a position to mine forty tons of coal a day: that the stock would have at least par value and would-be remunerative in the way of dividends. Upon the faith of these statements, the defendant says he subscribed for this stock, and gave his note, which he renewed and made payments upon. He now alleges that the representations made to him by Stimson were incorrect and false, and Stimson | said that, "when an allegation of fraud knew them to be false and misleading; is relied on in an affidavit of defense, that $25,000.00 has been collected by the plaintiff, which has been spent and squandered in and about the said shaft, and as yet the said company is not in a position to market coal and are using the money for other purposes, for salaries, etc., instead of for taking out of coal, and are otherwise mismanaging the property of the said company, so that the said stock has no value and did not have any value at the time of the statements and declarations made by the said president and manager." The supplemental affidavit of defense, among other matters which are restated, avers that the representations were made that the project was completed with the exception of $7,200.00; whereas it was not completed within $30,000.00 or $40,000.00, and is not now completed. The affidavits filed in this case cannot be considered as satisfactorily drawn. They contain arguments and legal propositions, which should have been omitted. The purpose of the affidavit of defense is to set forth simply the facts upon which the defense rests. We, however, think that, outside of these, there are sufficient misrepresentations well alleged to warrant the submission of the case to a jury. It must be remembered that, for the purpose of preventing judgment, all the facts contained therein are to be considered as true, and also as susceptible of adequate proof. The rules relating to written instruments cannot be strictly applied at this time, if from the facts alleged a sufficient defense is presented. In Max Meadows Land and Improvement Co. v. Mendinhall, 4 Sup., 398, it is held that "great liberality is always exercised in the admission of evidence having a tendency to show fraud, and in determining whether the allegation is established, the united force of the items of testimony having this tendency is to be considered. So, where the fraud consists in false representations in which matters of fact and matters of opinion are so ingeniously joined as to make the whole deceptive and misleading, they are to be considered as a whole." It is also the facts constituting the fraud should be fully set forth; but when representations inducing a contract are indefinite, an averment that such representations were false and fraudulent entitles defendant to have the bona fides of such representations intrusted to a jury." In Standard Interlock Elevator Company v. Wilson, 218 Pa., 280, Mr. Justice Potter said: "It is true that false statements to be deemed fraudulent in law must relate to something represented as an existing fact, but a statement 'apparently only of intention, purpose or opinion, may amount to a statement of fact, as where a person fraudulently misrepresents his intention in doing a particular act to the damage of another': Benjamin on Sales, sec. 449 et seq. In this connection is cited the case of Edgington . Fitzmaurice, L. R., 29, Ch. Div., 459, where the directors of a company issued a prospectus inviting subscriptions for debentures, stating that the objects of the issue of the debentures were to complete alterations in the buildings of the company, to purchase horses and vans, and to develop the trade of the company, whereas the real object of the loan was to enable the company to pay off pressing liabilities. It was held that the misstatement of the object for which the debentures were issued was a material misrepresentation, and rendered the directors liable to an action for deceit." It must be remembered that, in this case, the alleged misrepresentations were made by the president and manager of the company to induce the sale of its stock. In this respect it differs from Folsom Real Estate Co. v. Esmark, 38 Sup., 580. Then, too, this action is between the company and the defendant, and the interests of third persons are not involved. We are, therefore, of the opinion that this case should be submitted to a jury, and the rule for judgment is accordingly discharged. Rule discharged. |