Action by John Frantz against Willard R. Race. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

James W. Piatt, for appellant. Charles M. Lee, for appellee.

PER CURIAM. This issue comes before us on a case stated involving an interpretation of the will of George W. Frantz, of Monroe township, Wyoming county. After making provision for his wife in the first and second clauses of his will, in the third he says: "I give and bequeath to my son John Frantz the farm on which I now live after the death of my wife Sarah M. Frantz, the title of said farm to be and remain in the hands of my executors who are to take charge of said farm at any time when the said John Frantz lets the farm, or income thereof is wasted, and the executors to take charge of the farm and pay the said John Frantz the income or profits therefrom." The fifth clause is: "I hereby appoint my friend Wheeler Herdman executor of this my last will and testament." The testator died in December, 1899. His widow remained in possession under the will until April 27, 1901, when she died. John then went into possession under the will, and so remains; but by written articles, on January 5, 1902, he contracted to sell and convey to Willard R. Race, the defendant; deed to be made "conveying a title in fee simple, clear of all imperfections in the title." John tendered to Race a deed purporting to convey the land in fee simple, which Race declined to accept until adjudication of title. Hence this case stated, on which the learned judge of the court below entered judgment for Race, this defendant, and we have this appeal by John.

It would, perhaps, be somewhat difficult to define the exact nature or extent of John's beneficiary estate, but for our present purposes we can say very certainly what it is not without being under the necessity of saying exactly what it is. He had no legal title to the land. That, by the express directions of the will was to be in the executor, Herdman; and the necessary inference is, from the inapt language, in him as trustee for John. But John was not to remain in the uninterrupted occupation of the farm. In two contingencies-"if he lets the farm," or "income thereof is wasted"-then the executor is to take charge of it, pay the income or profits of it to John. The trust is very far from being what the law calls a "dry trust." In two events, either of which might occur, the duty of the trustee was active. It involved the possession, actual or constructive, of the land, cultivation, collection of rents, payment of taxes and insurance, and the keeping up of repairs. Inferentially, as long as John did not let the farm

or waste the income, he was to occupy it, but neither expressly no inferentially was the title to vest in him during his life. During his life, therefore, practically he had nothing to convey. The argument of appellant's counsel, under the rulings in Dodson v. Ball, 60 Pa. 492, 100 Am. Dec. 586, and like cases, that this was a "dry trust," and that, as John was to have the whole income and profits, carried with it to him the land itself, without force. The trust was an active one. In certain contingencies, that John might have any income or profits, the executor could, under the terms of the will, take possession by himself or agent. Neither is there any force in the argument that because there is no devise over at John's death he must take more than a life estate. By the will there is no devise of the land to him. The income and profits are hedged around with a trust, obviously to guard against his mismanagement and improvidence. We have not reached that point where it is either wise or necessary to determine to whom the land may or shall go at his death. What estate under his father's will has he to convey during his lifetime? is all we decide now. As held by the learned judge of the court below, he had

none.

The judgment is affirmed.

(205 Pa. 166)

JENKINS v. RUSH BROOK COAL CO. (Supreme Court of Pennsylvania. March 9, 1903.)

SET-OFF-ACTION FOR SERVICES.

1. In an action to recover for services reudered, defendant cannot set off the value of property which plaintiff, while in his service, had fraudulently taken title to in his own name, and which at the time of the action was in his possession, but had not been converted into money.

2. In an action of assumpsit, defendant cannot set off a claim for which assumpsit will not lie by him against plaintiff.

Appeal from Court of Common Pleas, Lackawanna County.

Action by Joun S. Jenkins against the Rush Brook Coal Company. From an order sustaining exceptions to report of a referee, defendant appeals. Affirmed.

Argued before DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

S. B. Price and A. Ricketts, for appellant. Everett Warren and H. M. Hannah, for appellee.

PER CURIAM. Out of the 17 assignments of error preferred here, and pressed in the argument of appellant's counsel, the only one that caused us to hesitate in affirming the decree of the court below is the fourth, which complains that the court erred in overruling the report of the referee allowing défendant's claim of set-off. The referee found that plaintiff had established by proper proof a

claim of $7,468.62, but that defendant had established a set-off of $22,050. This wiped cut plaintiff's demand, and, after a computation of interest, left a balance in favor of defendant of $22,880.61. Without undertaking to deny the satisfactory character of the evidence to establish these respective amounts, the court is of opinion, from the character of it, that, in law, this set-off cannot be sustained in this proceeding. Apparently, it ought to be allowed, unless flatly against well-established precedent. The court below was of opinion that precedent effectually barred the set-off; and so, after a very careful examination of the authorities, we find it does. By our defalcation act of 1705 (1 Smith's Laws, p. 49), the defendant in any action or contract was authorized to plead payment, and give any bond, bill, receipt, account, or bargain in evidence. This action was assumpsit by plaintiff on substantially a contract for services. The defendant adduced evidence tending to show that plaintiff, while in its service, had fraudulently taken title in his own name to real estate, and to stocks in his own name, and was in possession of the same, which in fact belonged to his employer. The referee undertook to fix a value upon the real estate and stocks so taken, and then set off that value in favor of defendant. It will be noticed from the evidence that plaintiff was still the owner of the real estate, and still was in possession of the stocks. He had converted neither into money for his own use. His possession, then, was tortious. We have examined carefully the many cases cited by the court below, and they uninterruptedly hold, in substance, that a set-off claimed by a defendant, for which assumpsit would not lie by him against plaintiff, is not a proper subject of set-off in his favor when plaintiff sues him in assumpsit, and that assumpsit can only be maintained on a contract, express or implied. This is the sum of the many authorities, under our defalcation act, given in Ahl v. Rhoads, 84 Pa. 319. The defendant has its remedy either in an action for damages for the tort, or in equity to compel a transfer of its property.

There is no such merit in the other assignments as warrants discussion. They are all overruled, and judgment is affirmed on the opinion of the court below.

ing himself, and charging the other prisoner with the crime. The latter on the following day denied the truth of the statement. At the trial for murder the statement was offered as evidence of the guilt of the prisoner, because he had not denied the statement when made, and because on the following day he had declared it false. Held, that the statement was inadmissible as circumstantial evidence against the prisoner.

3. In a criminal case neither a deposition regularly taken nor an ex parte affidavit can be introduced as evidence by the prosecution. Appeal from Court of Oyer and Terminer, Luzerne County; Lynch, Judge.

Victor Zorambo was convicted of murder in the first degree, and appeals. Reversed. Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

R. Nelson Bennett and Evan C. Jones, for appellant. B. R. Jones, Dist. Atty., for the Commonwealth.

BROWN, J. The appellant and Peter Lenousky were charged jointly with the murder of Anthony Sennick. Both are foreigners, speaking their own language and not understanding ours. They were arrested within a few hours from the commission of the crime, and shortly afterwards given a hearing before a magistrate, who committed them for trial. At the hearing there was present, among other officers of the law, an assistant district attorney, with his stenographer and an interpreter. While in the magistrate's office Lenousky said he wished to make a statement. He was immediately warned by the assistant district attorney not to speak, as any statement he would make might be used against him on his trial in court. He persisted, however, in making a statement, and, after having been sworn by the magistrate, proceeded to give in detail a confession which he alleged Zorambo had made to him of his guilt alone of the crime charged against them both. This alleged confession implicated no one but Zorambo, and the statement made by Lenousky was manifestly for the purpose of exculpating himself, who has since been also convicted of the willful murder of Sennick. The statement was taken down by the stenographer as interpreted to him by the interpreter. Zorambo sat still and made no reply to the accusation of his confederate in the crime.

It is not disputed by the commonwealth that, when Lenousky was warned by the assistant district attorney, through an interpreter, not to make any statement, Zorambo heard and understood what was said. On his trial this statement of Lenousky, as taken down by the stenographer-practically a deposition by him-was offered by the commonwealth as evidence of the prisoner's guilt-first, because he had not spoken and denied the accusation when Lenousky made it before the magistrate; and, secondly, because, on the day following, when his attention was called to it, he had declared it to

3. See Criminal Law, vol. 14, Cent. Dig. § 1539.

be false. At the time the offer was made it was objected to, for the reason that the statement "was made during a legal proceeding, when the accused had no right to speak, or at least was not bound to speak." This objection was overruled by the learned trial judge, and the offer admitted, for the reason, as given by him, that the statement "was made after the proceeding had ended before the magistrate." The single error assigned is that "the court erred in admitting in evidence the stenographer's notes of Lenousky's statement made in the magistrate's office."

It is by no means certain that the hearing was over at the time Lenousky made his statement, though the magistrate testified that it was, and the assistant district attorney corroborates him to a certain extent. The latter, on his examination in chief by the commonwealth, said: "I think he made it after the hearing," but on cross-examination the following occurred: "Q. The commonwealth had rested its case? A. We called all the witnesses that were subpœnaed. Q. That you had? A. Yes, sir. Q. Then you suddenly discovered you had another witness? A. No, sir; he volunteered this statement himself. Q. Then you discovered you had another witness? A. Well, yes; after we heard this statement." If the hearing was not over, the silence of Zorambo and his failure to deny Lenousky's accusation could not be used against him. While it is true, as a rule, that when one charged with a crime is at full liberty to speak, but remains silent and makes no denial of the accusation by word or gesture, his silence is a circumstance to be taken into consideration by the jury, it is equally true that an accused at a judicial inquiry into his guilt may hold his peace in the face of any accusation against him, and his silence cannot be regarded as any, not even the slightest, evidence of his guilt. Ettinger v. Commonwealth, 98 Pa. 338; Underhill's Criminal Evidence, § 122; Wharton's Criminal Evidence, § 680; Commonwealth v. Kenney, 12 Metc. 235, 46 Am. Dec. 672. Assuming, as the learned trial judge did, that the hearing, as a matter of fact, was over, and that the officers of the law who were present so understood the situation, and felt there was nothing more for the magistrate to do but to commit the prisoners, the question to be determined in deciding whether Zorambo's silence under the accusation of Lenousky ought to have been left to the jury as a circumstance against him, is, did he know the hearing was over, or had he reason to believe that the judicial inquiry was still going on? If to him the proceedings before the magistrate had not ended, but were apparently still in progress, no tongue that he could understand having told him they were over, he could be silent before his accuser, and his silence could no more be afterwards used against him than if he had been silent when the hearing had been actu

ally taking place. In the absence of proof that he knew it was over, the only fair con clusion to be drawn which is consistent with his rights is that he must have thought it was still going on. It is to be assumed that though a foreigner, speaking and understanding a strange language, he knew he was taken with Lenousky before the magistrate for a hearing. It is further to be assumed that, except when witnesses not understanding English were being examined, the proceedings were conducted in that language, of which he knew nothing. He was not represented by counsel, who might have explained everything to him. When Lenousky insisted upon making a statement, not a word was spoken to him indicating that the hearing was over; on the contrary, just as all prior witnesses had been sworn, so an oath or affirmation was administered to Lenousky, and, to all appearances, to the prisoner, who understood only what he saw, the hearing was still proceeding. The scene had not changed, and was calculated to produce on his mind the same influence at the end as had existed all through. Commonwealth v. Harman, 4 Pa. 269. But a moment must have intervened between the examination of the last witness formally called by the prosecution and the making of the statement by Lenousky, which was not addressed to Zorambo, but made to the magistrate, and, in that brief interval, Zorambo, through the interpreter, heard and understood the warning given by the commonwealth's officer to Lenousky not to speak, which it can hardly be seriously contended he ought not to have regarded as applying to himself as well. He knew from the lips of authority that, if he spoke, whatever he said might be used against him on his trial for his life, and he heard the caution not to speak. That he kept silent was his right as at the time he must have understood it, and manifest error was committed In submitting his silence to the jury as circumstantial evidence against him.

That the prisoner, on the day following the hearing, declared Lenousky's statement to be untrue, is urged as a reason why it was properly admitted in evidence because it showed what he had denied. The answer to this is that Zorambo's denial of the truth of Lenousky's statement was consistent with his innocence; and, if simply because he denied what had been charged against him, the commonwealth ought to be allowed to offer in evidence the statement as to what he had denied, an ex parte affidavit of the most serious import, containing the, gravest accusation and imperiling his life, would practically become evidence against him, for it would naturally be so considered by the jury, and the accused would be denied the right guarantied him of meeting his witnesses "face to face" (Declaration of Rights, art. 1, § 9), and of having his counsel cross-examine the accusing witness in his presence. Howser v. Commonwealth, 51 Pa. 332. Lenousky

was in court during the trial, and could have been called by the commonwealth to bear witness against the accused "face to face," if he knew anything that the jury ought to have known from him connecting the accused with the crime charged. Neither an ex parte affidavit nor a deposition regularly taken can be substituted with us for testimony "face to face" in any criminal prosecution, and the successful attempt of the commonwealth to do so in the present case, in which a human life is involved, calls for a reversal of the judgment.

Judgment reversed, and a venire facias de novo awarded.

(205 Pa. 164)

WILLIAMSON v. CARPENTER. (Supreme Court of Pennsylvania. March 9, 1903.)

REFORMATION OF DEED-MISTAKE-
EVIDENCE.

1. The evidence necessary to reform a deed because of mistake must relate to the time when the instrument was executed.

2. A father conveyed two lots of different sizes to his sons. After the death of the father the grantee of one of the sons brought ejectment. Defendant alleged a mistake in the descriptions in the deeds. There was evidence that before the delivery of the deed the father had made declarations exactly reversing the descriptions in the conveyances, and that after the conveyances the sons occupied the premises as if the descriptions had been in accord with the declarations of their father. Held insufficient to justify the reformation of the deeds.

Appeal from Court of Common Pleas, Lackawanna County; Kelly, Judge.

Action by C. H. Williamson against M. H. Carpenter. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

J. M. Walker and Clarence Ballentine, for appellant. Emil Rosenberger, John F. Scragg, and Willard, Warren & Knapp, for appellee.

PER CURIAM. John Koch, deceased, was the owner of two lots, Nos. 57 and 58, on east side of Hyde Park avenue, in the city of Scranton. He had two sons, Henry George Koch and Henry F. Koch. The two lots adjoin. Each, in the regular plan, fronts 66 feet on the avenue. The father desired to convey these two lots to his sons, but not by an equal division of the land; so on same day, October 24, 1874, he delivered to each son a deed-one to Henry George for lot No. 57 and 25 feet additional, and one to Henry F. for 41 feet front of lot No. 58 on Hyde Park avenue. Both deeds were duly recorded. It was alleged by defendant that the father made a mistake in the description in the respective deeds; that the land he conveyed to Henry George was the land he intended to convey to Henry F., and that the land conveyed to Henry F. was what he intended to convey to Henry George. It was

1

sought in this suit in effect to reform the deeds.

There was evidence that the father, before the delivery of the deeds, by declarations to others, expressed an intention exactly reversing the description in the conveyances to the two sons. There was also evidence that the sons, after the conveyance, occupied the property exactly as if the father had conveyed according to that expressed intention. This last evidence lost most, if not all, of its significance, from the further fact that their occupation after the deeds was just the same as before their date.

The measure and character of evidence necessary to reform a deed on the ground of mistake has been so long firmly settled that it would be a waste of time to cite authorities. It must be clear, precise, and indubitable, of such character as would move a chancellor to reform a written instrument; not of such character as might induce a jury to reform it; and it must relate to the time when the instrument was executed. Ahlborn v. Wolff, 118 Pa. 242, 11 Atl. 799; Boyertown Nat. Bank v. Hartman, 147 Pa. 558, 23 Atl. 842, 30 Am. St. Rep. 759. The evidence of the father's intention before the deeds were made, when met by the contradiction in the deeds, only proves that he changed his mind, not that he failed to express it as finally resolved upon the day the deeds were made. We think the learned judge of the court below was clearly right when he held that the evidence of mistake or accident in the description did not come up to the measure of proof laid down without variation in all authorities.

The other assignments of error have no merit requiring special notice. They are all overruled, and the judgment is affirmed.

the middle of the building, and there was a clear passageway through it 10 feet wide, extending from the front to the rear room. The floor was of Virginia pine, and was dressed with a preparation of oil commonly used on floors of the same kind. It had been cleaned and the dressing applied on Saturday afternoon after the store was closed, and had been rubbed carefully, so that the floor would dry. When the store was opened on Monday morning, it was examined and found to be hard and dry. There was nothing unusual about the floor, or the manner in which it was cared for. The dressing was of a kind in common use, and was applied in the usual way. The floor had been dressed in the same manner a month before, and had been used by the plaintiff and others without accident. The passageway in which the plaintiff fell was unobstructed and thoroughly lighted, and there appears to have been only the usual danger in the use of oiled or polished floors.

To entitle the plaintiff to recover, it was necessary that she should show some specific act of negligence on the part of the defendant, or the existence of conditions so obviously dangerous as to amount to evidence from which an inference of negligence would arise. Stearns v. Ontario Spinning Co., 184 Pa. 519, 39 Atl. 292, 39 L. R. A. 842, 63 Am. St. Rep. 807; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350, 42 Atl. 707; Spees v. Boggs, 198 Pa. 112, 47 Atl. 875, 52 L. R. A. 933, 82 Am. St. Rep. 792. The plaintiff had worked in the room a half hour before she fell. She testified: "As I crossed the room, I turned to one of the ladies and said: 'I am in such a hurry. I have so much work to do, and I am feeling so well.' And just as I crossed the room, my feet slipped from under me." This was the only testimony as to the way in which the accident happened, and it appeared from the testimony of her witnesses that it was obvious to any one that the floor had been newly dressed. It was not negligence to have an oiled floor in the room. The ordinary usage of the business was followed, both as to the character of the floor, and the manner in which it was cared for. This was the test of negligence. Titus v. Bradford, etc., R. Co., 136 Pa. 618, 20 Atl. 517, 20 Am. St. Rep. 944. The argumentative statement by the plaintiff that, when she fell, her dress was spoiled by the oil she fell in, does not sustain the allegation that the floor had been carelessly or negligently dressed. She did not say that there was loose oil on the floor, and no witness suggested this, and all the testimony was to the contrary. Some of the dressing may have remained on the surface of the floor, and been transferred to her dress by the force of her fall. Even if the employé who oiled the floor applied too much dressing, or failed to rub it thoroughly, his neglect would not make the defendant responsible for injuries sus. tained by another employé who had the full

est opportunity to observe the condition of the floor.

The judgment is reversed, and judgment is now entered for the defendant.

(205 Pa. 172)

CITY OF PHILADELPHIA, to Use of McFARLAND, v. McLINDEN et al. (Supreme Court of Pennsylvania. March 23, 1903.)

MUNICIPAL CORPORATIONS-ACTION ON CON

TRACTOR'S BOND-DEFENSES.

1. In an action by the city of Philadelphia on the bond of a municipal contractor, given under ordinance of March 30, 1896, to the use of the men employed on the work, it is no defense that the use plaintiffs are day laborers.

2. It is no defense to an action on the bond of a municipal contractor that the city paid the contractor after notice, as the city was under no obligation to pay the laborers, nor to see that they were paid.

3. It is no defense to an action on a municipal contractor's bond that the contract was in violation of the law forbidding the employment of alien labor.

Appeal from Court of Common Pleas, Philadelphia County.

Action by the city of Philadelphia, to the use of Joseph McFarland, assignee of Jerry Lanno and others, against James McLinden and the Union Surety & Guaranty Company. Judgment for plaintiff for want of sufficient affidavit of defense, and defendants appeal. Affirmed.

The Union Surety Company filed an affidavit of defense, which was in part as follows: "Deponent is advised, so believes, and here avers that neither the plaintiff, the use plaintiff, Joseph McFarland, nor any of the assignors of the said Joseph McFarland, furnished any labor and material in furtherance of the contract mentioned in plaintiff's statement, and contracted with said McLinden as contemplated by the said ordinance of councils and the bond in suit, but that, on the contrary, the said assignors of the said McFarland, the use plaintiff, were nothing more or less than general laborers and employés of the said McLinden, and were not contractors with him for the work and labor mentioned in the statement; and that the bond in suit was not intended to and does not cover the various claims, or any of them, for which suit is brought. Deponent is advised, so believes, and here avers that the persons contemplated by the said ordinance and the bond in suit are citizens of the United States, and that by the act of assembly of June 25, 1895 (P. L. 269), none but such citizens were entitled to be employed as laborers, workmen, or contractors upon the work in question so as to be protected by the said bond. Deponent is informed, so believes, and here avers that neither the plaintiff nor the use plaintiff is or are entitled to recover in the action brought without averring in the statement of claim that the laws of Pennsylvania and the ordinances of councils were complied