proved by the appellate court: Com. v. Densten, 217 Pa. 423. At the trial of the case at bar, there was no express admission of the accuracy and correctness of the Commonwealth's evidence as to the exact location and width of the street and sidewalk in question, or as to the precise extent to which the porch in question extended over the building line. Affirmative evidence was also offered by the defendant tending to show that he had secured a permit from the city authorities for at least some part of his work of erecting the porch complained of. As a matter of law the permit produced by the defendant at the trial seemed insufficient to authorize the erection of the obstruction complained of, and the court so instructed the jury. cision or ruling of the court," and writs of error and certiorari sued out thereon. The case at bar, being a charge of maintaining a public nuisance, is, therefore, reviewable at the instance of the Commonwealth, and a new trial may be granted by the appellate court for cause shown. This was done in Com. v. Kembel, 30 Pa. Superior Ct. 199, because the trial court, in a nuisance case, had instructed the jury that there could be no conviction unless the obstruction of the highway was an unreasonable one, under all the surrounding circumstances. But in the case at bar, the jury was charged that any obstruction of the public sidewalk whatever in the Borough of Hanover by the defendant's porch, without prior municipal authority for the same, based on some statute, was a public nuisance per se; and that the fact that other similar obstructions had been permitted to remain on said sidewalk furnished no excuse or justification for the erection or maintenance of the obstruction complained of in this case. Every-point the Commonwealth's evidence was thing short of a binding instruction to convict the defendant was given by the court. But that was refused the Commonwealth because the final question of the defendant's fuilt or innocence, on the whole of the evidence, even though its most material parts were uncontradicted, still rested upon the credibility of the witnesses and upon the conclusiveness of their testimony, of which matters the jury alone was the judge. In every criminal case the jury must be convinced of the defendant's guilt beyond a reasonable doubt before it can convict, and, therefore, every material fact necessary to sustain a verdict of guilty must be established by that same measure of proof. The jurors are the final judges of both the law and the facts, under proper instructions from the court as to the former. It is, therefore, evident that only where the facts are admitted and the case turns necessarily and entirely upon a question of law, submitted to the court, would binding instructions to convict be warranted. Such seems to have been the case in the only instance cited to us in which such instructions have been ap The instructions of the court on the various questions of law raised at the trial of the case do not seem to be seriously excepted to when separately considered. But it is contended that on each so strong as to warrant binding instructions on the whole case for the defendant's conviction. But we do not think such a conclusion can be sustained upon either reason or authority. In Com. v. Cassell, 1 Pa. Superior Ct. 476, the case case was held properly submitted to the jury, although the defendant offered no testimony whatever against that of the Commonwealth showing that he had erected a building which encroached upon the public street. The defendant is not bound to testify. The burden of proving his guilt beyond a reasonable doubt still rests upon the Commonwealth, though he remains silent and offers no evidence at all, and the duty of passing upon the credibility of the witnesses and the sufficiency of the evidence still rests upon the jury. It cannot be shifted to or assumed by the court. For these reasons no binding instructions to the jury to convict the defendant could be given in this case. The Commonwealth's motion in arrest of judgment and for a new trial is re fused and overruled. Legal Miscellany. The Decision in the Lackawanna Case. One of the most important decisions thus far rendered by the Supreme Court of the United States in construing the commodities clause of the Hepburn act was handed down by it in the case of the United States v. Delaware, Lackawanna & Western Railroad Company. In this decision the federal court of last resort overrules the decree of the three United States District Judges at Trenton in April of last year which dismissed the suit brought by the government against the corporation and held that the latter had acted within its rights under the law. For an understanding of the main point involved in the decision, it should be recalled that the Lackawanna Railroad Company was not only chartered as a railroad company, but was authorized to mine and sell coal. The commodities clause of the Hepburn act, passed in 1906, made it unlawful for the railroad to haul its own coal in interstate com merce, and the company adopted a plan by which it sought to divest itself of title to the coal before transportation began so as to satisfy the conditions of the act. With this purpose in view, it procured the incorporation, under the laws of New Jersey, of the Delaware, Lackawanna & Western Coal Company, and invited its own stockholders to subscribe to the capital stock of the coal company at the rate of one share of the latter for each four shares of the railroad company. Ninety-nine per cent. of the stockholders subscribed for the stock of the coal company, their subscriptions being paid for in full out of a cash dividend previously declared by the railroad company. The new corporation was then organized by the election of the vice-president of the railroad company as president of the coal company, other officers and directors of the former being also officers and directors of the latter. After the completion of the organization the coal company entered into a contract with the railroad company whereby the latter, reserving such coal as it needed for its locomotives, agreed to sell and the coal company to buy free on board at the mines all coal which, during the term of the contract, the railroad company should produce from its own mines or purchase from any one else. The price for prepared sizes was fixed at 65 per cent. of the price in New York on the day of delivery at the mines. This contract was made on August 2, 1909. It was contended by the govern ment that the stockholders of the two corporations were practically identical; that a large majority of the stock was still owned by the same persons; that by virtue of the terms of the contract the railroad company had such an interest in the coal as to make it unlawful for it to transport the same in interstate. commerce, and that the contract tended to create a monoply and unlawfully to restrain trade in violation of the provisions of the anti-trust law, since under the conditions the railroad company had the control of more than 90 per cent. of the market with power arbitrarily to fix prices. The District Court, as has been said, found against the government contentions and dismissed the suit, but the Supreme Court has taken a different view, and has not only reversed the judgment of the lower court, but has directed the latter to enter a decree enjoining the railroad company from further transporting coal sold under the provisions of the contract of August 2, 1909, holding that the latter is violative of the provisions of both the commodities clause of the Hepburn act and the Sherman antitrust law. Mr. Justice Lamar says in the opinion. of the court that mere stock-ownership by a railroad or by its stockholders in a producing company cannot be used as a test by which to determine the legality of the transportation of such company's coal by the interstate carrier. The decisions construing the commodities clause, however, recognize that one corporation can be an agent for another corporation, and that by means of stock ownership one of such corporations may be converted into a mere agent or instrumentality of the other, and this use mines to one buyer or to many, it must not only part with all interest, direct or indirect, in the property, but also with all control over it or over those to whom the coal is sold at the mines. In such a case, the court adds, the railroad company must leave the buyer as free as any other buyer who pays for what he has bought. It should not sell to a corporation with officers and offices in common, for the policy of the statute requires that instead of being managed by the same officers they should studiously and in good faith avoid anything, either in contract or conduct, that remotely savors of joint action, joint interest, or the dominance of one company by the other. If the seller wishes-by a lawful and bonafide contract, whose provisions as to delivery and otherwise are not in restraint of trade to sell all of its coal to one buying company, then that one buyer can be bound by reasonable terms and required to pay according to the contract. But such buyer should otherwise be absolutely free to extend its business to buy when, where and from whom it pleases and otherwise to act as an independent dealer in active competition with the railroad company."-Bradstreet's. of one by the other, or this power of one | railroad sells coal at the mouth of the over the other, does not depend upon control by virtue of the fact that stock therein is held by the company or by its shareholders. For, the justice continues, dominance of the coal company may be secured by a carrier not only by an express contract of agency, but by any contract which, in its practical operation, gives to the railroad company a control of or an "interest direct or indirect" in the coal sold at the mouth of the mines. In the view of the court, "the contract has in it elements of a sales agency. It provides that the railroad company will sell and that the coal company will buy all coal that is mined during the continuance of the contract; but it prevents the coal company from buying from any one else. It requires it to sell to present railroad customers at the old prices, even though those prices may be unprofitable. The seller is not bound to make deliveries of fixed quantities at fixed dates, and by decreasing what it will sell, and determining when it will ship, it has a power in connection with its power as a carrier which, if exerted, would tend to increase prices in New York. Besides all this, the contract prevents the coal company from competing with the railroad company in the purchase of coal along the railway line." Taking it as a whole, the court says, and bearing in mind the policy of the commodities clause to dissociate the railroad company from the transportation of property in which it is interested, and that the Sherman anti-trust act prohibits contracts in restraint of trade, there would seem to be no doubt that this agreement violates both statutes. In concluding the court sets forth in general terms what must be done under the law by a railroad company if it wishes to continue in the business of mining. Such a company must, according to the opinion, absolutely dissociate itself from the coal before transportation begins. It can not retain the title nor can it sell through an agent. It cannot call that agent a buyer while so hampering and restricting such alleged buyer as to make him a puppet subject to the control of the railroad company. If the C. P. OPINIONS. Detweiler v. Adams Bair v. Adams Express Co. Rule for judgment for want of a sufficient affidavit of defense discharged. O. C. OPINIONS AND ADJUDICA By JUDGE SMITH. TIONS. Thursday, October 7, 1915. Mary Ann Sharpe, Rapho. Estate of Michael Keller, deceased. The accountant, in his answer to the LANCASTER LAW REVIEW. petition asking for a citation to account VOL. XXXII.] FRIDAY, OCT. 22, 1915. [No. 51 Orphans' Court. Estate of Henry M. Shreiner, Deceased. Guardian and ward-Interest-Commissions-Surcharge. A guardian who by investing the trust funds at less than the prevailing rate of interest and failing to show that the principal was kept properly invested and that the accumulated interest was re-invested, apparently lost more than the amount of his commissions, should be deprived of his commissions. Exceptions to account. O. C. of Lancaster County. June Term, 1905. No. 59. Coyle & Keller, for exceptions. H. Edgar Sherts, contra. September 30th, 1915. Opinion by SMITH, P. J. By exceptions, it is charged that the accountant has not charged himself with interest at a sufficient rate and has accounted for less than he should have received. No testimony was offered. The account does not show how the fund has been invested, if at all, though the accountant has charged himself with interest at the rate of four and one-half per cent since 1897, the time when it was committed to his care. If he mingled it with his own funds and used it, he is chargeable with interest at the rate of six per cent, and more if his profit therefrom was greater. If he allowed it to remain idle, the rate might be no less. He is also chargeable with interest on the accumulated interest. In Becker's Estate, 28 LANCASTER LAW REVIEW, 262, it was decided by this Court that a trustee is liable for interest at the prevailing rate, which was found to be five per cent. and an exhibit of investments on which the rule was granted, certified that "the said moneys have been invested by him at the rate of 42% per annum, and that he now has the said moneys invested with other moneys which he has for investment on a promissory note held against Milton G. Brubaker, and that he feels that the said moneys are amply secured." Except as to the Milton G. Brubaker note, no information is given. When was this note taken, when will it mature, and how was the money invested or used previous to the making of it? Does the note include accumulated interest? If not, why not; if so, why not accounted for? The accountant is not blameless. His ward's interest has suffered for want of prudent management on his part. From our computation, the losses amount to more than the commissions claimed by him; therefore, the first nine exceptions are sustained, the credit for commissions is disallowed, the balance is fixed at $608.55, and the account as corrected is confirmed. Estate of J. Hoffman Hershey, Deceased. Trustees-Commissions—Interest. The rule that a trustee is chargeable with the prevailing rate of interest, or five per cent, plied only when the trustee is shown guilty is not a hard-and-fast rule, but will be apof slothful, careless and unfaithful conduct. Trustees who have taken commissions as administrators cannot take a second commission as trustees. It does not follow that the executors of a deceased trustee who joined in the account of the surviving co-trustee are not entitled to be compensated for this service out of the estate of the deceased trustee. Adjudication. O. C. of Lancaster County. January Term, 1903, No. 23. H. Edgar Sherts, for accountnat. Chas. W. Eaby, for exceptions to ac count. October 14, 1915. Opinion by SMITH, P. J. The testator gave five thousand dollars to be invested for the benefit of his granddaughter, Barbara Leah Brubaker, now Jones: "the annual income thereof shall be paid to her regularly during her natural life from the time she arrives at the age of eighteen years, and after her death the principal sum shall revert to my estate, if she dies without issue; otherwise it shall go to her lawful issues." Hebron M. Herr and H. M. Mayer were the administrators with the will annexed, and therefore undertook the management of the trust. H. M. Mayer is dead, and the account adjudicating is that of "Hebron M. Herr and Frances M. Mayer and Dora E. Mayer Hershey, executors of H. M. Mayer, deceased, trustees of Barbara Leah Jones, legatee under the will of J. Hoffman Hershey." The following exceptions have been filed to it: "I. The accountants have failed to charge themselves with interest at the rate of five per centum per annum. "2. Exception is hereby taken to the item of accountants' commissions at 22% on $5,000.00 $125.00. "3. Exception is hereby taken to the following: H. Edgar Sherts, Counsel fees, $62.50.' will not be applied, and therefore the first exception is dismissed. The reason advanced in behalf of accountants for the credit of $125.00 commissions on the corpus at two and one-half per cent, is that it is the first tolling of the fund, that as administra tors c. t. a. no commission was taken. If the assumption on which the reason rests is well founded, the credit should not be disturbed. Let The testator named no executor. ters of administration with the will annexed were granted to Hebron M. Herr and H. M. Mayer, the husbands of two of testator's daughters and legatees. Following the testamentary directions, the administrators filed no inventory nor account. They, however, did render a statement in the form of an account, which was submitted to the interested parties and approved by them, in which there appears a credit of $1,000.00 "commissions on $22,000 of cash received & paid out." They apparently attached no great importance to the amount of cash received and paid out by them, for a careful computation shows the amount to have been $23,638.22. This is not important, except that it shows that they had a correct understanding of the measure for their services, that, notwithstandIn Becker's Estate, 28 LANCASTER ing they, as is usually done, distinguished LAW REVIEW, 262, a trustee was sur- their value as if a commission, they charged with the difference between the really charged what they considered amount of interest received and that they had earned. As appears by the which he would have received had the debit side of the statement, the personfund been invested properly and at the alty amounted to $63,042.19. The difrate prevailing in the community. It ference between the cash and this sum was not intended thereby to lay down a were securities which were divided as hard-and-fast rule, but one that should directed by the testator and all of which be applied when, as in that case, the had been bequeathed, but none of them facts convicted the trustee of slothful, to Barbara Leah Jones. Regardless of careless and unfaithful conduct. When, what the administrators' services may as in this case, the conditions are re- have been worth, we have their estimate versed the trustees being vigilant, care- of their value, and emphasized as to ful and faithful, and offer proof showing cash, which included the five thousand that earnest efforts were made by them dollars which they undertook as testato find investments which would yield mentary trustees to hold, and on account no less interest than at the prevailing of which there is now an accounting. rate, which was found to be five per cent, Having, therefore, taken their commisand it appears that their investments gen- sions as administrators c. t. a., they are erally were at that rate, and some higher denied by the Act of March 17, 1864, -the rule introduced in Becker's Estate P. L. 53, the second commission as trus |