$64,781.71; that it obtained a dividend on the face of said check amounting to $5,170. (2) That the Germania Savings Bank paid out no morey on the four notes discounted; that it received from the Farmers' Deposit National Bank the $23,218.19 set off against the $88,000 check, an assignment of the certiticate for $64,781.71, and the dividend of $5,170. (3) The four notes of $10,625 each were proved before the auditor to distribute the balance shown by the first account of Henry Warner, assignee, and the Germania Savings Bank received a dividend of $2,496.87 thereon. On the books of the Germania Savings Bank the proceeds were credited to G. L. Reiber, cashier; and when he signed the proceeds check, and received the checks on the Third National Bank and German National Bank, he was debited with the same. These two checks were not owned by the Farmers' Deposit National Bank. The indorsement: 'For deposit clearing house. May 26, 1884. C. F. McCoombs. A. Tell,'-shows they were for collection. The contention in the case tried was that they had been paid, because entered on the file, and carried into the journal, and not into the ledger. Under the decisions of the supreme court, above set forth, the Farmers' Deposit National Bank and the Germania Savings Bank had the right to act as they did. To meet the foregoing facts, it is claimed by accountants that the agreement of discount between the Germania Savings Bank and the Penn Bank was that the Germania Savings Bank discount the four joint and several promissory notes of $10,625 each, made by Thomas Hare et al. to the order of Penn Bank, and that the Penu Bank would pay the $88,000 cashier's check; that the Pean Bank failed to pay the $88,000 check May 26, 1884, and the Germania Savings Bank stopped payment of the two checks given for the proceeds of the discount; that the proceeds of the discount were to be applied to the $88,000 check; and that said bank did so apply them, by giving credit on its books. the original case, the master found the facts: (1) That in pursuance to the agreement made between the Penn Bank, of the one part, the defendants, of the second part, and the 'outside banks,' of the third part, and to carry the same into effect according to the foregoing resolution, $450,000 worth of the bills receivable of the Penn Bank were indorsed and delivered to Thomas Hare, agent for defendants, prior to the time the notes were sigued and delivered. (2) That Thomas Hare et al. were accommodation makers of the paper to the order of the Penn Bank, and received no part of the proceeds thereof.

In

"Coming now to the question of discount, there are four witnesses, Scibert, Brown, Laughlin, and Meyran. Au analysis of the testimony of these witnesses is as follows: Seibert: 'Discounted notes. Personally, did not conduct negotiations. Only knew what I heard and saw.' J. O. Brown: 'On committee to go to banks, and get proceeds of discount of $289,000 of paper. Did not go to Germania. It was not on the list. When the committee returned to the Penn Bank, they asked W.

N. Riddle about the Germania, and received for a reply, "That is another matter. We could get no money from that bank.' Laughlin's testimony is of the same import. Mr. Meyran, the president of the Germania Bank, and the man who carried on the negotiations, testifies that the discount was made on condition that the Penn Bank would pay the $88,000 check. We were to hand over $40,000, and they were to pay the $88,000 check.' The utmost that can be claimed, under the testimony, is that the Germania Savings Bank agreed to discount these four notes on condition that the $88,000 cashier's check of the Penn Bank should be paid. The testimony of Brown and Laughlin amounts to nothing, as to the alleged agreement of discount, except as some evidence in corroboration of Mr. Meyran, that the discount was on condition that the $88,000 check should be paid. Mr. Meyran does not say that the proceeds of the discount were to be credited on the note of $88,000, or applied to its part payment: 'Question. In what way did you arrange to carry out the bargain that your check of $88,000 of the Penn Bank was to be paid, and at the same time the Penn Bank was to open, and get the proceeds of these four notes? Answer. Why, we just simply handed over our $40,000, the proceeds of these notes, and they would pay us our check of $88,000.' When questioned by counsel, he says this was to be carried out through the clearing house, his bank depositing its $88,000 check in the Farmers Bank, through which the Penn Bank cleared, and giving two checks for the proceeds to the Penn Bank. Now, Mr.

Meyran knew that there would be other checks of the Penn Bank that would meet in the clearing house, and the proceeds of the discount of the four notes would be as available to pay these as to pay the $88,000 check. That is the operation of the clearing house, as explained by him. Of course, if the Penn Bank had sufficient credits to meet the debits, or supplied the cash to make up the deficiency, on Monday, May 26, 1884, all the checks on it, including the $83,000 cashier's check belonging to the Germania Bank, would have been paid. But such operation of the clearing house is certainly not an application, express or implied, of one particular check to another. The Germania Bank refused to receive back from the Farmers' Bank the $88,000 check, and at No. 254, September term, 1885, brought suit against the Farmers' Bank for the amount of the deposits in the pass book received by it when it deposited the $88,000 check. Mr. Meyran makes the affidavit of claim and counter affidavit, in which he claims for the whole amount. This is certainly inconsistent with a theory that the proceeds of the discount of the four notes were to be applied on this $88,000; for then there was a credit due on the check of $42,500, as the Germania Bank had not paid out one dollar on notes discounted. At that time, i. e. 1884, the Germania Bank claimed, by its actions, that it had not deposited the $88,000 check for collection, because it refused to receive back the check, objected to the Farmers' Bank

The giving of checks for the proceeds show that fact. The mere entry in the books of a charge does not vary the transaction. "There is no magic in bookkeeping,' especially bank bookkeeping, as illustrated by the Penn Bank. (2) That, in a suit by the Penn Bank against the Germania Bank for the proceeds of discount, the latter could have set off or defalcated the $88,000 check. That is, no doubt, true, if the Germania Bank had the check; but it did not, and at that time disclaimed ownership of it. At the time the notes were paid by the makers, the $88,000 check had already been set off against the Penn Bank deposit for $23,218.29, and a certificate for the balance in favor of the Farmers' Deposit National Bank. The $88,000 check could not be set off again. Simes v. Zane, 24 Pa. St. 242. Thus far the Penn Bank, the payee, had a defense to the notes. Therefore, the accommodation makers could avail themselves of such defense. They are treated as sureties. As a general rule, at least, a surety is allowed to stand upon the rights of his principal, and set up any defense that the principal could. Gunnis v. Weigley, 114 Pa. St. 191, 6 Atl. Rep. 465.

"So far the master bas considered the case independent of the condition attached to the discount, to wit, 'We will discount your paper if you pay our $88,000 check.' As was said before, this was not an ordinary discount. It was coupled with a condition,-and that condition had sufficient consideration to support it,that, even on the failure to pay over the cash proceeds of the discount, the Penn Bank could not have recovered either of the notes in an action of replevin, or their value in trover, without fulfilling the conditions of the contract. Therefore the Penn Bank had not a complete defense to the notes.

"Assume, however, that the master is wrong in this. We come to the question, had the makers of the notes any defense thereto, independently of the Penn Bauk defenses? The maker of an accommodation note cannot set up the want of consideration as a defense against it in the hands of a third person, though it be there as collateral security, merely. He who chooses to put himself in the front of a negotiable instrument, for the benefit of his friend, must abide the consequences, and has no more right to complain if his friend accommodates himself by pledging it for an old debt then if he had used it in any other way.' Accommodation paper is a loan of the maker's credit, without restriction as to the manner of its use. Lord v. Bank, 20 Pa. St. 384. As between the maker and the payee, there is an available defense; but the maker cannot complain of a subsequent holder, when called upon to perform all that he has promised. Moore v. Baird, 30 Pa. St. 138. That, in the opinion of the master, is the decisive point in this case, while it may be doubtful whether or not the Germania Savings Bank is a third party, within the ruling of Lord v. Bank, and that line of cases. But assume that it is not. Then the accommodation makers could have set up the failure to pay over the proceeds of dis

count; but how could they defend against the other consideration, to wit, to pay the $88,000 check? They were parties to this agreement, and, until the $88,000 check was paid, could not defend against payment of the notes. For this reason the master is of the opinion that the credit should be allowed. He therefore recom mends a decree that the exception should be dismissed, and that the costs of this proceeding, including the master's fee, be paid out of the $6,689.26 turned over to the assignee by the accountants. This disposition of the costs is made because the decree in the original case provided that the costs should be paid out of the proceeds of the collateral.

submitted. George P.

"Respectfully Hamilton, Master."

Supplemental report of the master upon the exceptions filed: "The master, in the above case, respectfully reports that, upon the completion of his report in the above case, he gave notice thereof to the respective counsel for plaintiff and defendants; that exceptions were filed by both plaintiff and defendants. Upon consideration of said exceptions, the master overrules all the exceptions filed by defendants. He also overrules all the exceptions filed by plaintiff, except the ninth, (9,) which exception is as follows: '(9) The master erred in not finding and reporting that the Germania Savings Bank had notice, and knew, at and after the time it agreed to discount the four notes for the Penn Bank, that the defendants were only the makers of said notes for the accommodation of the Penn Bank, the indorser.' The master thinks that the facts embodied in this exception were so found in his report, but, to avoid any misconception thereof, he distinctly finds the fact: That the Germania Savings Bank knew, at and after the time it agreed to discount the four notes in question, that the makers of said notes were accommodation makers. Respectfully submitted, George P. Hamilton, Master.

A. M. Brown and H. A. Miller, for appellant. Knox & Reed, Isaac Van Voorhis, and D. T. Watson, for appellees.

PER CURIAM. All of the material specifications of error are to the findings of fact by the master. We are not convinced that the learned master has committed any substantial error in this respect, or that he has found any fact without evidence, or without sufficient evidence to submit to a jury. The decree is affirmed, and the appeal dismissed, at the costs of the appellant.

COMMONWEALTH v. BUCCIERI. (Supreme Court of Pennsylvania. March 27, 1893.)

CRIMINAL APPEAL-COSTS-LIABILITY OF COUNTY. There being no express statutory provision to that effect, a county cannot be compelled to pay for printing the "paper book" on appeal from a conviction in a criminal case.

Appeal from court of oyer and terminer, Berks county; G. A. Endlich, Judge.

In the matter of the petition of E. Hy Deysher, Esq., praying that an order may be made directing the county of Berks to pay the expenses of printing defendant's paper book in the case of Commonwealth v. Pietro Buccieri. Petition denied.

W. B. Bechtel and E. H. Deysher, for appellant. J. H. Jacobs, H. P. Keiser, W. J. Rourke, and W. Oscar Miller, Dist. Atty., for the Commonwealth.

They

DEAN, J. Pietro Buccieri, the defendant, was indicted in the oyer and terminer of Berks county for murder. He being without counsel, the court appointed Messrs. Bechtel & Deysher to defend him. performed this duty with ability and faithfulness. Their client, however, was convicted of murder of the first degree, and on the 12th of December last was sentenced to death. From this sentence an appeal was taken to this court. Many exceptions were taken at the trial, and 24 assignments of error were filed of record. The case was argued on the 27th of February, and, after due consideration, the judgment, on the 20th of March, was affirmed. 26 Atl. Rep. 228. To properly present the case for argument under the rules necessitated the printing of a paper book of some 200 pages. The accused being in extreme poverty, counsel now ask us to make an order on the county of Berks to pay for printing the paper book. Te justify such an order, we should be able to point to a statute authorizing it; for, if there be no "thus saith the law," we are powerless to grant the relief prayed for. By section 9 of the declaration of rights, the accused in all criminal cases has a right to "compulsory process for obtaining witnesses in his favor." Under a liberal construction of this constitutional enactment, every one accused of crime, without regard to his poverty, has been able to enforce the attendance at the trial of witnesses in his behalf, if they were within the boundaries of the commonwealth. But this is as far as the law goes in his favor. In the case of Huntingdon Co. v. Com., 72 Pa. St. 80, one Crewitt had been indicted for murder. Just before arraignment, he presented his petition to the court setting forth poverty, and praying an order on the county to pay the costs of process and of witnesses in his behalf. The order was made. At the close of the trial, his bill for witness fees and mileage of officers, amounting to $137, was filed, which the county refused to pay. court thereupon issued a peremptory mandamus to the commissioners commanding payment. From this order the county took an appeal to this court, and it was held, the late Chief Justice Thompson rendering the opinion, that the mandamus would not lie, and must be set aside. It was said in support of the decision "that the recovery and payment of costs in criminal cases are so entirely dependent on statutory regulations in Pennsylvania that it is indispensable for every claimant to be able to point to the statute which entitles him to receive what he claims. The right to compulsory process was con

The

ceded. Nevertheless, it was held that, le the absence of express enactinent, there was no liability on part of the county for either witness fees or officer's costs. The witness must attend at his own expense, because of the duty he owed the community. The officer must execute process at his own costs, for he takes his office cum onere. If there be no authority to compel the payment of expenses incurred in obedience to the positive constitutional mandate, certainly there is none under the same provision to compel the county to pay a printing bill to prosecute an appeal in a higher court. Counsel cite in support of their petition a docket order made by this court on the 21st of October, 1860, in Commonwealth v. John Warner, indicted for murder in oyer and terminer of Berks county, in which the county was ordered to pay the expenses of printing Warner's paper book. But this order, even if authorized, was made under section 59 of act of the 31st of March, 1860, which provided for a special allowance by the supreme court or a judge thereof of a writ of error in indictments for murder and manslaughter, and it was further directed that the said court or judge, upon the allowance of any such writ, shall make all such proper orders touching notice to the common wealth and paper books as may be considered necessary." Under this act there was a special allowance of Warner's writ, and in the same decree an order was made that the county should pay for printing bis paper book. The decree was wholly ex parte, without notice or hearing, and we have grave doubts whether the right to make an order "touching paper books" included a right to make the county pay for them; hut, however this may be, this section of the act of 1860, so far as it relates to the allowance of the writ, was superseded by the act of the 15th of February, 1870, which enacts that "a writ of error in all cases of murder and voluntary manslaughter shall be a writ of right, to be sued out upon oath of defendant, as in civil cases." In such cases this court has no longer any duty to perform as to allowances of writs, notices to commonwealth, or printing of paper books. Therefore, great as the hardship may seem to the petitioner, as we are wholly without authority to relieve him, his prayer is refused.

In re WILLIAMSON'S ESTATE. Appeal of PENNSYLVANIA CO. FOR INSURANCE ON LIVES AND GRANTING ANNUITIES.

(Supreme Court of Pennsylvania. March 20, 1893.)

TAXATION-REFUSAL TO RETURN PROPERTY-PowER OF BOARD OF REVISION - COLLATERAL INHERITANCE TAX-LANDS IN ANOTHER STATE.

1. An assessor, on the refusal of a taxpayer to make a return of his personal property, estimated its value, and returned his assessment to the board of review, who added 50 per cent. thereto, by way of penalty, as required by Act June 30, 1885, § 9. The rate of taxation was computed on this basis, and the tax list was placed in the hands of the receiver for collec

tion. Held, that the time for opening the assessment or changing the valuation closed with the taxpayer's death, two or three months later, and that the board was without power to make a new assessment of the property according to the inventory filed by the executors, and add 50 per cent. thereto by way of penalty.

2. The taxpayer, not having been guilty of any false return, had the right, under the above statute, to decline to give any information; and the fact that both the board and the assessor were ignorant as to the extent of his property is not a mistake in judgment as to its value, within the meaning of Act March 14, 1865, (P. L. 320,) empowering the board to revise and equalize valuations made by the assessor, and to rectify mistakes by making valuations where they have been omitted.

3. The collateral inheritance tax fastens on so much of the estate as passes to collaterals, as it stands at testator's death; and income accruing subsequently, and while the estate is being settled, is not subject to the tax.

4. A direction in a will to executors to sell lands in other states, and distribute the proceeds among specified persons, converts such lands into personalty; and the fund, being distributable within the state, is subject to the collateral inheritance tax. Mitchell, J., dissenting.

Appeal from orphans' court, Philadel. phia county.

On adjudication of the second account of Daniel D. Cummins, sole surviving executor, etc., of Isaiah V. Williamson, deceased, the city of Philadelphia presented a claim for increased taxes on the personal estate for 1889, and the commonwealth of Pennsylvania presented a claim on account of the collateral inheritance tax. The city's claim was disallowed by the auditing judge, but was allowed by the court in banc, and the claim of the commonwealth was allowed by both the auditing judge and the court in banc. The Pennsylvania Company for Insurance on Lives and Granting Annuities, trustee under the will of said Isaiah V. Williamson, deceased, appeals. Reversed in part, and affirmed in part.

The following is the opinion of the court in banc, (Ferguson, J.:)

"In this estate the supreme court has recently decided that as the income of the testator's estate for the first year after his death, amounting to $457,456.73, was by the direction of his will added to the principal, and both principal and income applied, indiscriminately and without distinction, to the payment of expenses, debts, and legacies, etc., there was no illegal accumulation of the income which was in violation of the act of April 18, 1853. Williamson's Estate, 143 Pa. St. 150, 22 Atl. Rep. 836. This question is now settled, but the fact remains that the result of this decision is that the corpus of the testator's estate has been preserved, to the extent of $457,456.73, upon which sum no collateral inheritance tax has been paid to the commonwealth, and its payment is now demanded. This is resisted upon the ground that the act of May 6, 1887, with reference to collateral inheritance tax, only imposes this tax upon 'estates passing from any person who may die seised or possessed of such estates,' and that as the testator did not die seised or possessed of the income of his estate, which accrued the first year after his death, there is no liabil ity for the tax. There would seem to be

considerable force in this proposition; but, when you come to make a practical application of it to this particular case, the force disappears. The method of assessing the collateral inheritance taxis to take the inventory and appraisement of the decedent's estate as filed within thirty days after his death, or a new appraisement as made by the state appraiser, and, after deducting therefrom the debts and liabilities of the decedent, and the expenses of settling his estate, to impose the tax upon the balance remaining. This is what was done in this case, and the tax was paid on the balance so ascertained. But the supreme court having held that, as this testator directed the income of his estate for the first year should be applied to the payment of expenses, debts, and legacies, and all of it, and a very considerable sum more, was so applied, there was no accumulation. Then, as the amount of the expenses, debts, etc., was deducted from the amount of the principal of the estate, as it existed at the time of the death of the testator, when the appraisement for the collateral inheritance tax was made, and those expenses, debts, etc., to the amount of $457,456.73, were paid out of the income, it necessarily follows that there is that much more principal left to pass froin the testator to his collateral heirs, and, therefore, that much more that is liable to the tax. In view of the decision of the supreme court, we do not see any escape from this conclusion: Either the debts and expenses must have been paid out of this income, or there was an accumulation in violation of the statute. And, if they were so paid, then the principal, to that extent, was left intact, to pass beneficially to the collateral heirs of the testator, and is therefore subject to taxation. If it is claimed that the income for the first year was appropriated to pay legacies, only, the claim of the commonwealth is much strengthened, because legacies payable out of income are annuities, (Scholefield v. Redfern, 32 Law J. Ch. 627,) and annuities are clearly subject to the collateral inheritance tax, (Act May 6, 1887.) The exceptions of the commonwealth to the rejection of this claim are therefore sustained.

"With regard to the claim of the city of Philadelphia for the taxes upon the money of the testator at interest for the year 1888, it appeared that the testator had for years refused to make any return, as required by law, and the assessor had assessed him as having $15,000 which was taxable, to which sum the act of June 30, 1885, added a penalty of fifty per centum, making in all $67,500, upon which sum the testator paid his taxes with great regularity and promptness, and no doubt with corresponding cheerfulness. It happened, however, that the tax so assessed for the year immediately preceding his death had not been paid by the testator at the time of his death, and the inventory and appraisement of his estate, as filed in the office of the register of wills, revealing the fact that he held $3,750,000 which was subject to this tax, the board of revision revised the assessment of the testator, and increased the sum taxable accordingly. It is now claimed that under the act of June