An indictment for false pretenses under the Act of March 31, 1860, Sec. 111, P. L., 410, will only lie where the offense charged is the assertion of an existing fact, not a promise to perform some act in the future. A. induced B. to indorse a promissory note drawn by A. to B.'s order, representing that he would use the note to take up another similar note which would soon fall due, and which he was unable to meet. A. failed to use the note for this purpose, but applied it for his own benefit, and was indicted for false pretenses, the indictment setting out the foregoing facts: Held, that the indictment would not lie under the provisions of the Act of March 31, 1860, Sec. 111, P. L., 410. Held further, that the defendant could not be convicted of larceny, under the proviso to the said section, as the indictment showed on its face that the note was the note of the defendant, and that the only thing of value he had obtained from B. was his indorsement of the note. of judgment and discharged the prisoner, on the ground that the indictment did not set forth an indictable offense. The Commonwealth thereupon took this writ, assigning for error the above action of the court, and its holding that the facts set forth in the indictment and proved on the trial did not authorize a conviction, under the proviso to the 111th section of the Act of March 31, 1860, which provides, "That, if upon the trial of any person indicted for such a misdemeanor [false pretenses], it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts. For the Commonwealth, V. Gilpin Robinson, District Attorney. Contra, EH. Hall, Esq. Opinion by PAXSON, J. 1882. Filed February 27, The only question presented by this record is whether the indictment sets forth an indictable offense. It contains two counts, in each of which the defendant below is charged with cheating by false pretenses. The particular act Certiorari to the Court of Quarter Sessions of alleged was the procuring of the prosecutor's Delaware county. indorsement of the defendant's promissory note, Robert M. Moore was indicted for false pre- and the false pretense charged consisted in his tenses. Plea, not guilty. The indictment contained two counts, the first of which charged that the defendant had represented to one H. P. Green that he would be unable to meet a certain promissory note drawn | by him and indorsed by Green, which would soon mature; and had further represented that, if Green would indorse a new note drawn by the defendant to his order, the defendant would use the same to take up the former note and for no other purpose, whereas in truth and in fact the said Moore did not intend so to use the second note to take up the first, and did not so use it, but used it for his own purposes. The second count was similar to the first, and charged further that the defendant, by the acts alleged, obtained from the said Green the said promissory note "drawn by the said Moore to the order of the said Green and by the said Green indorsed, and being then unpaid, being then and there the property" of the said Green, | with intent to cheat and defraud the said Green. On the trial, before CLAYTON, P. J., a verdict of guilty was rendered, whereupon a motion in arrest of judgment, and for a new trial, was filed. The court sustained the motion in arrest representing to the prosecutor that he would use the note so indorsed to take up and cancel another note of the same amount then about maturing, and upon which the prosecutor was liable as indorser. In other words, the note was given in renewal of another note of like amount, and the indictment charges that the defendant, instead of using it for this purpose, as he promised to do, procured it to be discounted and used a portion of the proceeds for other purposes. A false pretense to be within the statute must be the assertion of an existing fact, not a promise to perform some act in the future. The man who asserts that he is the owner of a house states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise is another and very different affair. That occurs whenever a man fails to pay his note. It is true Chief Justice GIBSON doubted in Commonwealth v. Burdick, 2 Barr, at p. 164, whether every naked lie by which a credit has been gained is not a false pretense within the statute. This doubt has run its course and has long since ceased to disturb the criminal law of this State. There was nothing in Commonwealth v. Burdick to suggest such doubt, as the defendant had willfully misrepresented that he had a capital of $8,000 in right of his wife, while in all the cases cited therein, there was a misrepresentation as to existing facts, by means whereof a credit was obtained. The decisions upon this subject are uniform, and it would be an affectation of learning to cite the cases. Many of them may be found in the foot note to Purdon. before us? But it is said, the jury having convicted the defendant of the offense of cheating by false pretenses, we must assume that the facts proved amounted to larceny. This does not follow. A general verdict of guilty upon the indictment, is a finding only of the facts sufficiently pleaded. Neither of the counts would sustain a charge of larceny. The first count contains no averment that Horace P. Green, In the case in hand there was no assertion of the prosecutor, was, or ever had been, the owner an existing fact, nor was there anything done, of the note in question, and, if never the owner, by which even a credit was given. The credit it could not have been stolen from him. The had been obtained when the original note was second count was evidently intended to cover indorsed; the present note was indorsed in lieu both offenses, but such criminal pleading is of and for the purpose of taking up the original; | rarely a success, and certainly is not so in this the failure to use it for such purpose was cer- case. It contains an averment at the close that tainly a dishonest act on the part of the defend- the said note was "then and thereafter the ant, but we do not think it punishable under property of the said Horace P. Green." Unthe statute defining false pretenses. fortunately for this averment, the prior portions of the same count show the fact distinctly that the note in question was the note of the defendant, drawn by him in favor of the prosecutor, and by the latter indorsed for the accommodation of the defendant and handed back to him. It was therefore the property of the defendant, and not of the prosecutor. The second count contradicts itself upon the facts, and the finding of the jury is wholly insufficient to enable us to say the facts proved upon the trial amount to larceny. It was urged, however, that if it was not cheating by false pretenses, under the statute, it was constructive larceny, and therefore within | the proviso of section 111 of the Act of 31st of March, 1860, P. L., 410, which is as follows: "Provided, always, that if upon the trial of any person indicted for such a misdemeanor (false pretenses), it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person held for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts." We are, therefore, of opinion that the learned judge of the court below committed no error in arresting the judgment, and his ruling must be Affirmed. SHARSWOOD, C. J., concurs in the affirmance, but would quash the writ. The provisions of the Act of February 29, 1872, P. L., 21, The fourth assignment of error avers that "The learned court erred in not holding that the facts set forth in the indictment and proved on the trial, showed that the defendant obtained the property in question in such a manner as MCQUILLEN AND WIFE v. THE SINGER CO. in law would amount to larceny, and in not giving judgment for the Commonwealth," etc. We do not think it necessary to discuss the line of cases cited in the able and interesting argument of the learned District Attorney, defining the distinction between the offenses of cheating by false pretenses and constructive larceny. While the distinction is a nice one, it is nevertheless clearly defined. The difficulty upon this head is not in the law, but in the application of the law to the facts of a particular case. We are not called upon to pursue this inquiry in the present instance. It requires but a moment's reflection to see that we could not reverse the court below upon this ground. How can we as an appellate court say whether it was proved upon the trial below that the defendant obtained the property in question in such manner as to amount in law to larceny, when not one word of the evidence is Error to the Court of Common Pleas of Centre county. Opinion by GORDON, J. Filed February 27, 1882. It is a mistake to suppose that the Act of February 29, 1872, constitutes the wife an agent for the husband in the purchase of sewing machines. It clothes her with the power to buy as many such machines for her own use as she may think proper without consulting her husband, and without regard to his inclination, circumstances, or the necessities of his family, but it gives her no power to bind his estate. The Court, HANDLEY, J., after argument filed the following order: ant. Subsequently, certain real estate belonging to James Ward was sold under order of the Nothing, indeed, would be more dangerous to Orphans' Court, and of the proceeds $301.25 was domestic peace than to confer upon the wife a | awarded to the extinguishment of the judgment, power to bind her husband for that not required | part of which had already been paid. Peter by the necessities of their joint household, and Ward, administrator, etc., thereupon obtained we are unwilling to introduce such an element a rule to show cause why he should not be of discord by a construction not required by the subrogated to the rights of the plaintiff in the terms of the statute-a construction which would judgment in the sum of $301.25. give the wife the right to bind the husband to a contract made, not only without his assent, expressed or implied, but, perhance, in the very face of his most determined opposition. Necessity alone could justify such a violation of the husband's rights, but in this case the question of necessity is not involved, for that hypothesis was excluded by the refusal of the court to instruct the jury that there could be no recovery against Thomas McQuillen, unless they should find that the machine purchased by his wife, was actually necessary for the support of herself and family. It follows that this judgment must be reversed, and if, upon retrial, the jury find that the machine is not a necessity for the support of the family, their verdict must be against the wife alone, and in that case the plaintiff must look, for the collection of its judgment, to the separate estate of Mrs. McQuillen, and not to that of her husband. The case of Blank's Appeal, 3 Grant, 193, rules this question. Rule discharged. Whereupon, Peter Ward, administrator, etc., took this appeal, assigning for error, the discharging of his rule. For appellant, D. C. Harrington, Esq. Opinion by SHARSWOOD, C. J. Filed April 24, 1882. That a surety who pays the debt or from whose estate it is paid has a right in equity to be subrogated to the security against the principal, is a doctrine so familiar and well settled as to need no citation of authorities to support it. James Ward, the decedent, was the surety of Daniel Sullivan, in the judgment of the Anthracite Building and Loan Association. The judgment was revived against the appellant, his The judgment is reversed and a new venire administrator. His estate was sold by order of ordered. For plaintiffs in error, David F. Fortney, Esq. Contra, Messrs. A. T. Freedley and D. S. Keller. WARD'S APPEAL. Where the estate of a deceased surety in a judgment is compelled to pay the amount thereof, the administrator of such deceased surety is entitled in his official capacity to be subrogated to the rights of the plaintiff in the judgment. Blank's Appeal, 3 Grant, 192, distinguished. Appeal of Peter Ward, administrator of the estate of James Ward, deceased, from an order of the Court of Common Pleas of Luzerne county, discharging a rule obtained by appellant to show cause why he should not be subrogated to the rights of the plaintiff in a certain judgment. the Orphans' Court, and $301.25 of the proceeds was applied to this judgment. Why should not his estate be subrogated to this judgment against Sullivan? The learned judge in the court below thought that the case of Blank's Appeal, 3 Grant, 192, ruled the question and decided against allowing the subrogation. That case has no application. It merely decides that an administrator who pays a debt of an intestate has no right of subrogation to the original creditor against the estate. The amount in this case was paid out of the estate of the intestate, under the legal liability of the estate and not by the administrator, and the subrogation claimed is for the estate which the appellant represents and not for himself personally. Order discharging the rule for subrogation reversed and now rule absolute. The facts of the case were as follows: Daniel Sullivan borrowed from the Anthracite Building and Loan Association $400, giving his judgment note therefor, which note bore date December 28, 1871, and upon which James Ward was surety. The note was entered up in 1872. James Ward afterwards died, and his death being suggested of record, his administrator, Peter Ward, was substituted as a party defend-1, APPEAL OF DAVID GREGG. The proper practice in the Courts of Common Pleas, on "rules to show cause," is to take depositions in support of such rules. Unless this is done, the rules will be discharged at the argument, even though no answer may have been filed. Certiorari to the Court of Common Pleas, No. of Allegheny county. The facts in this case were as follows: The sheriff, by virtue of certain executions, levied upon and sold the personal property of James Bown. David Gregg, Bown's landlord, gave the usual notice of rent to the sheriff, and requested him to retain it. The funds were ordered into court and paid out by order of court before the return day of the writ. Gregg filed his petition praying the court to order his rent to be paid out of the funds realized at the sheriff's sale. No depositions were taken in support of the petition, neither was any answer thereto filed. The rule to show cause, previously granted, was discharged at the argument. From the order discharging the rule this appeal was taken. PER CURIAM. Without stopping to inquire whether the ac from the records showing that Bohlen was entitled to receive all of the proceeds of the sale except the costs, and tendered to the sheriff money sufficient to cover all legal costs, together with a receipt for the amount which the purchaser appeared from the records to be entitled to receive. The clerk, whose duty it was to make out special returns, then informed Boblen's attorney to come to the office the following Tuesday, when he would have the return made out. On the Tuesday following the attorney for Bohlen repaired to the sheriff's office and found that the property had been again put up for sale in the meantime and knocked down to A. C. Patterson, Esq., for the sum of $50. Mr. Bohlen then took a rule to set aside the sale to Patterson, and also filed exceptions to the acknowl A commissioner was appointed to take testimony and report the law and the facts of the case, and reported that the sale to Patterson should be set aside. It appeared in the evidence that the judgment of Bohlen had been paid out of the proceeds of a former sale, but had not been so marked upon the record. tion of the court in distributing money raised edgment of the sheriff's deed to Patterson. on sales of personal property before the return day of the writ was regular, it is enough to say that upon the record as returned, it does not appear that any evidence was submitted to the court below of the appellant's claim for rent. This petition was, indeed, sworn to, and was sufficient to ground the rule to show cause, which was granted by the court, but surely upon the hearing it was no evidence. His dep-terson, and dismissed the exceptions filed to the osition, or that of others, with the opportunity acknowledgment of the sheriff's deed to him, to the other side to cross-examine was certainly which action of the court was assigned as error. required by all ordinary rules of practice. It For appellant, Messrs. Thos. M. Marshall and was clearly the duty of the sheriff, in his return, A. Blakeley, Esq. to have stated the landlord's claim, and to give notice to him that he had paid the money into court. We see no sufficient reason why this court should interfere. The court refused to set aside the sale to Pat Contra, A. C. Patterson, Esq. PER CURIAM. Filed November 21, 1881. Order affirmed and appeal dismissed at the Court of Common Pleas confirming or setting costs of the appellant. J. T. STOCKDALE, Trustee, v. JAKE HILL. No appeal in general lies to an order of the Court of Common Pleas confirming or setting aside a sheriff's sale. It must present a case of manifest abuse of discretion to justify the Supreme Court in interposing. Appeal from the decree of the Court of Common Pleas, No. 2, of Allegheny county. aside a sheriff's sale. It must present a case of manifest abuse of discretion to justify this court in interposing. Nor do the provisions of the Act of 1846 make any difference. We think, in this case, the discretion of the court below was wisely and justly exercised. Appeal quashed. Orphans' Court. IN PARTITION. In Re Estate of MARGARET GIFFIN, Deceased. (1.) Where the Orphans' Court sets aside an inquisition on the ground of under valuation at the instance of a tenant for life, it has no power to restrict the functions of the alias jury. An execution having been issued against Jake Hill upon a judgment obtained against him, his real estate was exposed to sale by the sheriff and bidden in by P. R. Bohlen for the sum of $7,500. At the time of the sheriff's sale the records showed Bohlen to be a lien creditor of the defendant in the execution to an amount exceeding his bid. On the morning following the sale to Bohlen, his attorney appeared at the (3.) It is the duty of the sheriff to allot, where the jury sheriff's office, exhibited a certified statement (2.) Tenants for life are entitled to have their shares set apart in land, if it can be done without prejudice. has parted decedent's real estate, so as to correspond with the parties in interest. Exceptions to petition of alias writ of inquest, filed by Mrs. Louisa Rankin and Samuel Giffin. (1.) In Rankin's Appeal, 95 Pa. St., 358, the Supreme Court held that E. P. Swift, petitioner, being only tenant for life, had no right to choose nor bid on the return of the rule to accept or refuse; but in order to afford him an opportu- | nity to correct any injustice which might have been done him in the valuation, set aside all proceedings subsequent to the return of the inquisition. This court thereupon permitted E. P. Swift to file exceptions to the valuation, referred the matter to an auditor, and, upon report | finding in favor of exceptant, set aside the inquisition, and awarded an alias writ of inquest. The return to this writ shows a new division and valuation made. The exceptants object to this return that no exception having been taken to the original division but only to the valuation, the functions of the jury should have been limited by order of this court to the subject of complaint. | sists of a plan of lots and a vein of bituminous stone coal in place. The purparts as respects the lots are made up of isolated parcels; and as respects the coal the line division is, as alleged by exceptants, diagonal to the line of fissure. The exceptants' object that this division is prejudical. They also complain that the valuation put upon the purparts is too high. The exceptions were not sworn to nor supported by affidavits. (4.) The costs indorsed on the alias writ of inquest are as follows: Jurors.......... $150.00 15.00 25.00 35.00 15.00 3.20 There is also an unsigned indorsement that the inquest was engaged two days in the performance of its duties. The exceptants object to allowance of these costs without some satisfactory explanation. The sheriff was not represented at the hearing of the exceptions, and does not appear to have had notice of the filing of exceptions to his costs. Leave has been granted E. P. Swift to file an exception nunc pro tune to the failure of the sheriff' to allot. Opinion by HAWKINS, P. J. Filed September 27, 1882. The word "inquest" in the 36th section of the Act of 29th March, 1832, P. L., 201, was derived from the common law; and that it was ingrafted here in its technical sense is obvious from the fact that it is used without qualification. The Orphans' Court in that section is given no greater powers than the common law courts had. It is simply given power "to award an inquest" and upon the return of the inquisition, give judgment thereon. The constitution and (2.) Margaret Giffin devised the property described in this writ to her two daughters, Emily Giffin and Mrs. Louisa Rankin. Emily married, and died after her mother, leaving a child who died in infancy; E. P. Swift, her husband; her brother, Samuel Giffin; Mrs. Louisa Rankin, her sister; and Harvey M. Giffin, Ellen M. Giffin and Frances M. Giffin, minor children of her deceased brother, Wm. Giffin, all of whom are parties to this proceeding in partition. As above stated, in Rankin's Appeal it was held that E. P. Swift was not entitled to choose nor bid. The alias writ recites from the petition for partition, inter alia, the names of all parties interested, including E. P. Swift as husband of Emily Swift and "heir at law" of her deceased child; and that "Mrs. Rankin is entitled to the one undivided half part in fee, and petitioner E. P. Swift is entitled to a life-estate in the other undivided half and the possession thereof in sev-functions of the "inquest" are therefore to be eralty." The alias inquisition finds, inter alia, that the property described in the writ can be parted and divided without prejudice to or spoiling the whole thereof and so as to correspond with the parties in interest," and thereupon reports a division into two purparts of equal value. The exceptants object that the writ was erroneous in stating that E. P. Swift is a party | by reason of being heir at law of his deceased child; and that the inquisition is fatally inconsistent with itself in that it finds the property described can be parted and divided so as to correspond with the parties in interest and then reports a division into fewer purparts than there are parties interested. 46 ascertained by reference to the common law. That the inquest is constituted of the sheriff and jury will, of course, be conceded: Bouv. Law Dict., "Inquisition.” The function of the jury is (1) to make "equal partition" of decedent's real estate; but if this cannot be done without prejudices, then (2) to make a just appraisement of the purparts into which they may divide it: Act of 29th March, 1839, Sec., 36 and 37. The jury is the sole judge of whether and how the property may be divided, and of its value. This court is given no jurisdiction either originally nor by amendatory proceedings to interfere with the exercise of their functions: Galbraith v. Gal (3.) The property described in the writ con- braith, 6 W., 112; Morris v. Galbraith, 8 Id., |