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lieve no harm was done to plaintiff.

amount of the check, as required by the in the remarks of Mr. Rochow, and bestatute. There was evidence to show that defendant knew that sufficient funds were not in the bank when he gave the check.

There can be no plausible argument that the verdict was against the evidence or the law.

The first, second and third exceptions are therefore refused.

The evidence shows that the counsel for defendant was allowed to present all the evidence he could produce to show to the jury that the defendant did not draw the check, that he did not send it to the prosecutor, or that he did not receive the note which the check was intended to pay for. Nowhere on the stenographer's transcript of the trial evidence and proceedings can we find any ruling of the trial judge which deprived defendant from offering any evidence germain to the issue.

The fourth reason is therefore overruled.

During the trial, counsel, acting for the prosecution made the following remark, on cross-examination.

"Q. Why, Mr. Rogowski, I have more respect for your intelligence as a member of the Jewish race, for you to try to tell this court and jury that you didn't

know -

The following objection, colloquy and ruling occurred in the hearing of the jury:

"Mr. Ehrenreich. If your Honor please, I object to that remark and ask for the withdrawal of a juror. I think that remark, I have more respect for your intelligence as a member of the Jewish race, is objectionable. There is no reason in the world why Mr. Rochow should call attention of the jury to any man's faith, creed or religion.

"The Court. I don't think that I can support that theory. The Jewish race stands very high in the estimation of this community.

"Mr. Ehrenreich. No doubt, sir. I don't know whether it may or may not have. I strenuously object to it and ask for the withdrawal of a juror.

"The Court. We refuse to comply with the request and grant an exception for the defendant."

We cannot conceive of any prejudice

The proper way to bring objectionable remarks before the court for adjustment, is to formally and definitely except to the remarks at the time of their utterance, so that the exceptions will become a part of the record: Haines v. Commonwealth, 99 Pa. 410; Commonwealth v. Shields, 50 Pa. Supr. Ct. 1; Commonwealth v. Dyminski, 79 Pa. Supr. Ct. 499; Commonwealth v. Ezell, 212 Pa. 293; Commonwealth v. Zappe, 153 Pa. 498; Commonwealth v. Rothensies, 64 Pa. Supr. 395; Commonwealth v. Rothensies, 256 Pa. 337; Commonwealth v. Williston, 73 Pa. Supr. 161-164.

The fifth reason is therefore overruled. The defendant's counsel, in his brief submitted, stresses the additional reason that this court did not have a legal right to try the defendant, alleging that the drawing of the check and the delivery of it was in Philadelphia County.

There was some conflict of evidence as to what was done with the check in question after the defendant had executed it in Philadelphia. One of the Commonwealth's witnesses swore that the check was delivered to him as the agent of the prosecutor, but the defendant himself swore that he sent the check by mail to the alderman who was acting for Ellis, the prosecutor, for the purpose of obtaining from defendant the payment of a note which prosecutor held against the defendant.

The evidence showed that the check duly reached the hands of the prosecutor, and that, as a consequence thereof, the prosecutor forwarded the note which the check was intended to pay.

We can find no authority in Pennsylvania which reverses the well established principle that "where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual": Bishop on Criminal Law (9th Edition), Vol 1, pages 65-66, sec. 110.

Under all the circumstances of this case as tried before the jury, we are of the opinion that none of the reasons advanced for a new trial are tenable.

The motion for a new trial is refused, and the defendant is directed to be in court at the next term of quarter ses

sions court, beginning Monday, January, the road, the road being narrow at the 5th, 1925, then and there to be sentenced.

C. P. of

Merritt et al v. Becker

place of the collision; and that he drove into the rear of the defendant's automobile projecting out into the traveled part Berks Co. of the road, sustaining injuries to himself and to his motorcycle. The defendant denies that he was negligent and that the disposition he made of his car was improper, and asserts that the accident was due to negligence on the part of the plaintiff Charles Merritt in the management of his motorcycle. The case was submitted to the jury upon the questions of negligence of the defendant and contributory negligence of the plaintiff Charles Merritt and resulted in a verdict for plaintiffs. The latter are now asking for a new trial on the ground that the the court will be properly exercised by verdict is contrary to the charge of the looking at the written verdiet for explana-court and inadequate.

Practice Trial -- Verdict - Variance between oral and written verdict---Erroneous verdict--New trial.

A verdict rendered by the jury orally at

the bar and recorded by the court, cannot be controlled by the written verdict handed in by the jury at the same time.

Where a verdict is palpably wrong and the error shown to exist with certainty by ref

erence to the written verdict, the discretion of

tion of that error.

An erroneous verdict which defies correc- On the subject of damages the jury tion by the record is ground for a new trial. was instructed to render a verdict, in the Kule for new trial at instance of plain-event of their finding in favor of the tiffs after verdict for them. Rule abso- plaintiffs, specifying the allowance made

lute.

to each of them, and told that the father would be entitled to recover the amount

Joseph R. Dickinson, for defendant expended for medical services and atten

and rule.

John B. Stevens, contra.

tion, for the loss of a suit of clothing, for the loss of earnings of the son already sustained, and for loss of future earnEndlich, P. J., August II, 1924 This ings of the son, if any, up to the age of is an action of trespass in which the 21 years, and that the son would be enplaintiffs, Charles Merritt, a minor, and titled to compensation of the damage Harry J. Merritt, his father, both claim done to his motorcycle, and for the pain to be entitled to a verdict against the de-and suffering and inconvenience resultfendant. The plaintiff Charles Merritting to him from the accident. The jury alleges, as the basis of the right of recov-returned a verdict in favor of Charles ery, that on the night of Oct. 14. 1922, Merritt for $206, and in favor of Harry he was operating his motorcycle with J. Merritt for $284.50, and this verdict sidecar attached upon a public highway was taken orally at the bar. The writat a proper and lawful rate of speed and ten verdict handed in by the jury allowwith proper lights in conformity with the ed the son for the cost of repairing his law; that at the same time the defendant motorcycle (which, according to the unhad placed his automobile on the side of contradicted testimony, was $100), and the road in such manner that the rear for pain and suffering, and in addition end projected out into the traveled por- for "loss of time" (meaning loss of earntion of the road, and without any lights ings, which belonged to the father), and upon it to warn others approaching it; limited the father's recovery to his actual that the place at which the defendant's expenses, thus showing very plainly automobile was left standing by the de- that they misconceived the instruction refendant is on a slight curve in the road; lating to the measure of recovery of the that the plaintiff Charles Merritt, when father. It is well understood and has driving his motorcycle along the road, been often decided that the verdict rencould not see the defendant's automobile dered by the jury orally at the bar and because there were no lights upon it and recorded by the court cannot be controlbecause of the curve in the road, the road|led by the written verdict handed in by being narrow at the place of the curve in the jury at the same time: see Dornick v.

ended March 27, 1865, P. L. 56), and June

12, 1919, P. L. 478, considered.

Rule for judgement for want of sufficient affidavit of defence. Wylie McCaslin, for plaintiff.

Mark L. Rabinovitz and Robert L. Wallace, for defendants.

-Plaintiff

Reichenback, 10 S. & R. 84; Rees v. Acts of April 22, 1856, P. L. 532 (as amStille, 38 Pa. 138; Haycock v. Greup, 57 id. 438; Scott v. Scott, 110 id. 387; Com. v. Breyessee, 160 id. 451; Kramer v. Kister, 187 id. 227; Rottmund v. R. R. Co., 225 id. 410; Com. v. Mills, 3 Pa. Super Ct. 161; Com. v. George, 12 id. 1; Com. v. Houghton, 22 id. 52; Com. v. Flaharty, 25 id. 490; Henning v. Keiper, 37 id. 488; Beecher v. Newcomer, 46 id. 44; Cooper v. Construction, etc., Co., 53 Emery, P. J., May 5, 1924. id. 141. But after all the object of every alleges in his statement of claim, and judicial proceeding is to do justice to the which is not denied by the defendants, parties: R. R. Co. v. Berry, 68 Pa. 272, that the title to the land in question in 279; Lingenfelter v. C. & I. Co., 84 id. this case was sold at sheriff's sale by pro328, 332; Henry v. Huff, 143 id. 548, ceedings based upon a judgement entered 563; Waln v. Beaver, 161 id. 605, 610; in said court at No. 32, March Term, Com. v. Striepeke, 32 Pa. Super. Ct. 82, 1917; that Leonard M. Uber, as attorney 85; Waugaman v. Henry, 75 id. 94, 98, for plaintiff, confessed judgment on a and the verdict here being palpably judgment bond in favor of George H. wrong and the error shown to exist with Bell and against James H. Shaffer for certainty by reference to the written ver- $1450, with interest thereon and costs; dict, it seems that the discretion of the that said Leonard M. Uber, while acting court will be properly exercised by look- as attorney for the plaintiff in said judging at the written verdict for explanation ment, caused a writ of fieri facias to be of that error, the fact of its commission issued at No. 8, March Term, 1917, in being apparent, though the exact figures said court, and that the land in question are impossible of ascertainment. Because of that error, and because it defies correction by the record, the new trial asked for must be granted; hence it is unnecessary to discuss the question whether the verdict should be set aside on the ground of inadequacy.

The rule to show cause is made abso

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If an attorney in an execution purchases the real estate, he becomes trustee for his client, and the client can maintain ejectment against him and those claiming under him, unless barred by the statute of limitations.

The statute of limitations begins to run

was sold by the sheriff to said Leonard M. Uber for the sum of $50, and, in pursuance of said sale, on Feb. 9, 1917, the sheriff executed and delivered a deed to Leonard M. Uber for the property in question.

The affidavit of defense discloses the fact that Leonard M. Uber and wife, by deed dated Feb. 13, 1922, recorded in the recorder's office of Lawrence County in deed book, vol. 234, page 450, conveyed the land in question to William H. Shaddick, and William H. Shaddick, by deed dated Sept. 8, 1922, and recorded in the recorder's office of said county,

conveyed said land to Harry Parrell, one of the defendants herein, subject to an article of agreement dated Feb. 13, 1922, recorded in agreement book, vol. 22, page 249, by which William H. Shaddick agreed to convey said land to Jacob Cottler upon the terms and conditions therein stated.

Plaintiff's statement of claim further avers, and is not contradicted by the affidavit of defence, that plaintiff had made demands upon defendants for possession of the premises prior to the bring

from the date the attorney parts with the ing of this action. The question raised is one of a fiduciary relationship arising by

title.

reason of the fact that Leonard M. Über was attorney for plaintiff in the confession of a judgment on a judgment bond and acting for plaintiff at the time the land in question was sold by the sheriff.

It is well settled principle of law in Pennsylvania that the party occupying a trust relation to another is prohibited from becoming an unconditional purchaser of land in which the other has an interest. This principle is very clearly and concisely laid down in Leisenring v. Black, 5 Watts, 303, and the reason in support of it plainly stated.

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Mechanic's lien-Pleading-Rescission We find of sale-Set-off-Affidavit of defense.

A deduction or set-off alleged in an affidavit of defense must, in order to be of any

avail, be stated with precision and exactness as to the amount, and the court must be left so as to be able to judge of the propriety of in no doubt as to its source and character,

its allowance against the plaintiff's claim; defense filed to a scire facies sur mechanic's lien.

Where an owner of a building in course of

erection accepted materials from a material facias sur mechanic's lien avers that the materials were not in accordance with a warand use thereof, but does not aver that the alleged defects were pointed out to the claimfect or that he intended to rescind the conant, or that he gave any notice of such de

man, and in his affidavit of defense to a scire

ranty of the same, and admits the retention

this rule has been followed in a number of cases: Beeson v. Beeson, 9 Pa. 279; Smith v. Brotherline, 62 Pa. 461; Albright v. Mercer, 14 Pa. Superior Ct. 3; Barrett v. Bambar, 81 Pa. 247. It appears from the record that judg-and this rule is applicable to an affidavit of ment upon which the land in question was sold was confessed by Leonard M. Uber as attorney for plaintiff; that the pleadings admit that the same attorney was in charge of the execution upon which the land was sold; that he purchased the title for $50, while the judgment was for $1450. His legal duty, therefore, would have been to have pro-tract, he cannot rescind the sale of the matected his client's interest and not permitted the sale for a nominal or trifling amount. This, we believe, would be at least constructive notice. It is also averred that plaintiff has been at all times ready and willing to repay the actual amount paid by Leonard M. Uber for this property at the sheriff's sale.

terials mentioned.

cias sur mechanic's lien avers a set-off for defects in materials, for unsound lumber and for materials which the claimant agreed to take back, without stating the full particulars and details in relation to the same, the affidavit is not sufficient to prevent judgment.

Where an affidavit of defense to a scire fa

Motion for rule for judgment in mechanic's lien of Frederick Blaebaum vs.

The title to the land remained in Leon-Norman C. Julius, owner or reputed ard M. Uber until Feb. 13, 1922, and the Statute of April 22, 1856, P. L. 533, does not begin to run against the claim of plaintiff until after that time or until the title was acquired by Shaddick.

Under the Act of June 12, 1919, P. L. 478, the case being within the law as above noted, the court may, on rule, enter such judgment on the pleadings in favor of either party as it may appear to the court the party is entitled to, and in this case it appears that the plaintiff is entitled to judgment.

And now, May 5, 1924, it is ordered, adjudged and decreed that judgment be entered on the pleadings in this case in favor of the plaintiff, George H. Bell, and against the defendants, Harry Par

owner, McMillan, carpenter contractor,
No. 19 in Mechanic's Lien Docket No.
10, in the Court of Common Pleas of
York Co., Pa. Motion allowed.

Jacob E. Weaver, for plaintiff.
John A. Hoober, for defendant.

Ross, J., December 29, 1924.-There was filed, January 9, 1924, in the office of the Prothonotary, a mechanics' lein by Frederick Blaebaum, contractor, against Norman Julius, owner or reputed owner, and M. L. McMillan, carpenter contractor. It was duly entered of record as No. 19 in Mechanics' Lien Docket No. 10.

A writ of scire facias sur mechanics'

lein was issued by the claimant, June 23, 1924.

The owner or reputed owner, Norman Julius, and the said carpenter contractor appeared and filed an affidavit of defence, on July 7, 1924, and ruled the claimant to file his replication thereto.

On July 22, 1924, the claimant filed his reply, and at the same time entered a rule on the owner or reputed owner (the defendants named in the writ of scire facias) to show cause why judgment should not be entered in favor of the plaintiff and against the defendant, for judgment for want of a sufficient affidavit of defence.

quired of a statement of claim: O'Neil v.
Burnett, 263 Pa. 216; Gross v. Exeter
Machine Works, 277 Pa., 363-368, 369;
Gimble Bros. v. Weaver, 71 Pa. Supr.
Ct. 212.

The plaintiff's bill of particulars reads as follows:

"I. The claimant, Frederick Blaebaum, resides in the City of York, Pa. and is engaged in the lumber and mill work business at 446-472 West Clarke Alley, in said City of York, Pa.

"2. The owner resides in West Manchester Township, York County, Pa., upon the premises described in this lien.

"3. The contract between the claimNothing further was done by the par- ant and owner or reputed owner was ties until the contentions were argued at partly in writing, a copy whereof is the regular term of argument court dur-hereto attached, marked Exhibit B, and ing the week beginning September 22, made part hereof, and partly oral. 1924.

"4. On the sixth day of February, The law which seems to have con- 1923, the claimant, Frederick Blaebaum, trolled the procedure of both parties in at the request of the owner or reputed this controversy is the act of General As-owner, Norman C. Julius, furnished the sembly of June 4, 1901, P. L. 431, and owner an estimate, Exhibit B, of the cost supplements thereto. of certain materials and mill work, acThe 34th section of the act provides, cording to a list or mill work statement inter alia, that "If an affidavit of defence furnished the claimant by the owner and be filed, a rule may be taken for judg-one M. L. McMillan, the carpenter conment for want of a sufficient affidavit of defence, or for so much of the claim as is insufficiently denied," &c., &c.

The 52d section provides, inter alia, "The facts averred by either party not denied in the answer or replication of the other, shall be taken as true in all subsequent proceedings in the cause, without the necessity of proof thereof." The affidavit of defence is contradicted and denied by the replication, in every essential particular, and the whole controversy came before the court at argument, without any depositions to support any of the defendants' allegations.

The affidavit of defence is evidently a defensive answer to the plaintiff's "bill of particulars," as set forth in the lien, and it is not drawn in consecutively numbered paragraphs as required by the law. The affidavit of defence is not a direct denial of the statements contained in the bill of particulars, but is an indefinite allegation of counterclaims or set-off against the definitely stated claims of the plaintiff. All rules of pleading require that an affidavit of defence raising questions of set-off, must state facts with the same certainty and regularity as is re

tractor of the owner, in which the claimant undertook to and did furnish the lumber and mill work therein set forth, at and for the sum of $1944.00.

"5. That the owner accepted said estimate and requested the lumber and mill work therein set forth be furnished at and when the same was required by the carpenter contractor.

"6. That all the lumber and mill work set forth in said estimate, Exhibit B, was furnished by the claimant to the owner, as therein specified.

"7. That on various dates, all as set forth in a statement designated 'Extras,' marked Exhibit C, hereto attached and made part hereof, the claimant furnished. to the owner, at his request, on the premises described in this lien, the lumber and mill work therein specified and set forth, at and for the amounts or values therein set forth, which said charges and amounts are the usual and market charges or value of said lumber and mill work, and are the amounts or value agreed upon between the claimant and the owner or reputed owner.

"8. That the total cost of the lumber and millwork in the specifications desig

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