prove the amount received by him, nor does Thompson, himself, deign to state the amount paid either of said assessors, contenting himself with the statement that the pay of the assessor of the ninth ward alone of this city was one year over $300.00.

for the districts in which the assessors the Treasurer's office. Not one of the were paid at the Treasurer's office, and assessors of said districts is called to placed them with the bills paid by Motter and which he there that day produced to him; that he added the bills up, there, in the presence of the Commissioners; and that the amount of the money he gave Motter, $6500 less $436 and some cents, together with the account bills and the above named nineteen districts, equalled the amount of that warrant; that he does not know whether Motter called out the amounts or not to him, when he added up the amounts of these bills.

This is not an investigation of accounts of years long ago, where through the death of witnesses or the loss or destruction of papers and accounts, facts like these could not be proven. Circumstances warned him of the necessity of It was strongly argued for respondents preparation for a defence early in 1902, that the burden of proof is on the peti- within a year of the transactions. Mr. tioners, and that Thompson is not re- Thompson would have us believe from quired to produce any evidence to explain. his testimony, that he had not, at any While this is true, in the first instance, time, possession of the vouchers in this yet after the facts proven by the petition-packet of bills at all, to make or permit ers that the bills paid by Motter out of ers that the bills paid by Motter out of the forgeries appearing on said papers, the county's moneys delivered to him by before the receipt of the warrant; that Thompson, were raised and forged to the the warrant was issued for the proper amount of $4250, or thereabout, and a warrant issued to Thompson for the whole If this defence is honest, why did he not amount of assessors' pay for that year. raised amount $10,273.19, which he pro- show the actual amount paid assessors duced to the county auditors and received that year by testimony clear and concredit for it in his accounts, it assuredly vincing. The assessors of the whole became his duty to speak, and, if possi-county, outside of the nineteen districts, ble, explain the transactions.

above mentioned, received for their serHe has entirely failed to do this by his vices, from Motter, $6,023, 19, and yet uncorroborated testimony. He does not we are asked to believe, on the uncorappear as an unimpeached and credible roborated testimony of Thompson himself, witness. He is contradicted frequently, when the same, if true, is amply capable by, H. S. Landis, by Charles M. Motter, of corroboration, and to believe, against Kister Free speaking from his books, by the convincing improbability of its truth, his own affidavit to the answer to the that the Treasurer paid the assessors of petition in this case, and by his admis- the said remaining nineteen districts sions and statements in reference to the $4,250.00, for an average of over one matters involved in this investigation, so hundred and ten days to each district. that his uncorroborated testimony can If true, the evidence was at hand, in the not be relied upon against the testimony control of Mr. Thompson, to prove the of disinterested witnesses like Motter and fact, and to make the amount expended Landis, and against the facts and circum- tally with the exact amount stated in the stances proven in the case. He is under warrant received by him and used to obthe disadvantage of a witness testifying tain a credit for himself before the auditin his own behalf, with an overwhelming ors. Not having produced any books interest. Testimony to corroborate his from the Treasurer's office, where acstatement in regard to the settlement counts are required by law to be kept, or with Motter and the make-up of the any checks, and not having called the amount for the warrant received June 10, assessors as witnesses, who could have 1901, for $10,273.19, has not been pro- testified to the respective amounts paid duced. It is not done by Motter or Com-to them for their services, the presumpmissioners Ziegler, Altland, or Bush, his deputy, or by the proof of the compensation paid the assessors of the nineteen districts, not paid by Motter, but paid at

tion is that the evidence is against him. Where evidence which would properly be part of a case is within the control of a party whose interest it would be, natur:

Work Legal Record.

Vol. XVIII.

THURSDAY, JUNE 30, 1904. No. 5.

ally, to produce it, and without satisfactory reason he fails to do so, the inference may be drawn that it would be unfavorable to him; Ginder v. Baughman, 8 Sup. Ct. 405. "It is an inference of fact and not of law;" Wills v. Hardcastle, 19 Sup. Ct. 525.

of June, 1901, William O. Thompson, Treasurer, with a knowledge that he was entitled to a warrant for only $6.023.19, fraudulently obtained a warrant for the bills as altered and forged for $10,273. 19, auditors, at the audit, and by fraud oband presented the said warrant to the tained credit for the same in the settlement of his accounts with the county for the year 1901, by which the county lost the amount of $4.250.00.

In packet numbered 1485, pay of registry assessors and warrant for same, the warrant is $4,288. 16;

the true amount

The excess produced is

The statement of Mr. Thompson, in his evidence, in explanation of these bills and the voucher, that the account bills, paid assessors is $2,079.21. Twenty-one delivered by him to Motter, probably of the bills in the packet are raised $30 amounted to fifteen hundred to two thous- each, and there is an arbitrary raise and dollars, when in reality they were in the warrant figures to the sum of only $109.50, shows the utter unrelia- $1,579 16. bility of his testimony. To find in his $2,209.16. favor as to the character of this warrant we would be compelled to believe that the in the Commissioners' office about DeThese bills appear to have been taxed bills in the packet were taken by Motter, cember 20, 1901, and were paid in the who had the bills in charge, after the Treasurer's office on December 20, and issuing of the warrant, and the abstrac- ten days later were presented to the tion of the bills for the nineteen districts Commissioners for a warrant, after the which Mr. Thompson says he put with forgeries were committed. Motter, the the other bills and the commission, by Clerk of the Commissioners, prepared Motter. of the glaring torgery of the bills the warrant in the Treasurer's office, at a time when it could be of no service to him or to any one; for when they were received by Landis out of the Commissioners' vault they were as they now

appear.

taking the amount from the endorsement on the back of the outside bill, which endorsement is shown to be in the handwriting of Mr. Thompson. Mr. Thompson laid his said warrant before the auditors and received credit for the same amount in the settlement of his accounts.

This packet and warrant are not covered by Thompson's general testimony that each bill questioned in this investiMr. Thompson testifies he had no gation was paid out of his cash drawer knowledge of the forgeries at the time of for the amount for which a warrant was obtaining the warrant or at the time he issued to him. In this testimony he seeks presented the same to the auditors for a to establish as a fact, that he had no credit, but in view of the fact that he knowledge of the forgeries and irregu- must have handled the bills at the time larities and that his cash drawer had of the making of the endorsement on the been robbed by Mr. Bush, his deputy, or back of the packet, and for the reason others; for he swears he never profited stated in regard to No. 642, as to the by any of the said questionable and contradictions of the witness, and his fraudulent transactions. His own testi- conduct in these proceedings, his testimony is that these triennial assessors' mony must be held of little weight. He bills were not received by him. Theresays he was absent from the office about fore, if that were true, these bills in this the time Motter prepared the warrant or particular packet were not carried in his the amount of it in the Treasurer's office. cash drawer. On his testimony, any He does not explain the large amount of fraud committed in that assessors' bills the warrant over the actual amount paid transaction was his own fraud, and not the registry assessors. It is impossible that of his deputy. to believe that he was ignorant of this For the reason stated, on the evidence and numerous other acts of forgery traced believed in the case, we are impelled to to the Treasurer's office. It was his. the conclusion that on the said tenth day habit to be present in the Treasurer's.

office each day a part of the day, some between the Treasurer and County for times twice a day, unless he was sick or 1900, two hundred and ten witness bills absent from the city. He and his deputy in returned cases were fraudulently alwould take an account of the balance of tered, and warrants were delivered to the cash and bills in the drawer. On such Treasurer for the raised amount appearoccasions one called off their amounts ing on the bills numbered in the said adand the other tabulated them. How, in mission and the amount of the warrant this case, and the great number of other credited to the Treasurer in the audit of packets of bills and warrants for forged January, 1901 amounts, could the facts escape the Treasurer's attention? Was it possible for the fact that he was obtaining warrants for vastly more money than he had paid out, to escape his attention? He had been and was engaged in banks and was familiar with accounts and financial transac tions. We find the allegations of the petition sustained as regards this packet and warrant.

We cannot, without extending this opinion to great length, notice each packet of forgeries involved and warrants issued for the same to the Treasurer and used by him before the auditors in receiv ing fraudulent credits in his accounts against the county.

It is proven that in packet No. 784, packet B., F. S. Zinn, Alderman, there are twenty-seven duplicate bills paid in 1899 by Bush, Treasurer, the amounts of which were included in the Treasurer's warrants, and laid by him before the auditors in 1901, and for which credit was obtained by the Treasurer.

In No. 544, packet G, James S. Bailey, Alderman, are fifteen fraudulent duplicated bills paid by Bush, Treasurer, in 1899, for the amount of which Mr. Thompson received a warrant including the amounts of the fraudulent bills, in

1900.

In No. 546, packet B, P. H. Amig, We have arrived at the conclusion that by Bush, Treasurer, in 1899, and inAlderman, are twenty-three bills, paid the petition of the Commissioners is also cluded in warrant, used in the same mansustained by the evidence, in the forger-ner, in the 1901 audit. ies in the following bills in packets proven to have been altered and forged after In these packets these bills are sandpayment, and warrants delivered to the wiched between undisputed bills for 1900, Treasurer for the same, and used by him and an affidavit of the proper Alderman, before the auditors in the years 1901 and bearing date in 1900, is attached, preced1902, in obtaining credits against the ing the bills, which the proper officers county of York, viz.: Packets 392 and testify was only made to cover the bills 1002, bills of Court Crier and Tipstaves of 1900. The bills paid in 1899 are in bills C, D, E, H, K, in the former, and sandwiched between 1900 bills so cleverly in the latter bills E, F, G. H, I, J, K, as to make the discovery of the fraud and L. The bills were tabulated by Mr. Thompson, as proven, in his handwriting. The forgeries in these bills are flagrant. They were, in many cases, for service in Court on days after the payment of the several bills.

I find the averments of the petition sustained by the testimony, in packets and warrants in No. 245, 921, C. F. Keech, Alderman; No. 942, F. S. Zinn, Alderman; No. 940, G. W. Aughenbaugh, Alderman; No. 432, Jacob Stager, Alderman; No. 1000, W. B Gemmill, District Attorney. Bills for fees of wit nesses in returned cases, 1901, (twentyfour proved forged, and the balance of same, five hundred and fifty-three, admitted forged).

most difficult, if not impossible. It could not be detected except by an examination of the dates, and even bills of December, 1899, might have been brought over unpaid, though the testimony is that all these 1899 bills had been paid by

the former Treasurer that year. The packets are deftly made up, in this manner, for the purpose of deceiving the officers and defrauding the county, being so arranged as to appear as if the apProval of the County Solicitor, H. C. Brenneman, in 1899, when he approved the bills, had been done in 1900.

Bond No. 47 was issued December 2, 1901, to pay Bond 45, which had matured. Thompson received the bond (47) and was not charged with it in the As regards the account and transactions Commissioner's office. When he paid

bond 45, he took a warrant from the it, and that he acted Treasurer by him. Commissioners, making himself good self and deputy for the years 1900 and $25,000.00 and got credit for said amount 1901, without keeping the accounts rein the audit in 1902. He also pursued quired by law, for the protection of himthe same course in getting credit for re- self and the county. He admits he kept payment to tax collectors of the amount some accounts, but none of these are proreceived by him from them in excess of duced, neither his bank book, nor his the amount due by them, after deduct- checks, which, on balancing his account ing their commissions and exonerations. with his bank of deposit, went back into He was not charged with the said bond his hands. or the refunded taxes, yet he got warrants for the amount of each, laid the warrants before the auditors in 1902, and received credits for the several amounts, by which the county was defrauded to the extent of the fraudulent amounts in said warrants.

This case calls loudly for equitable relief, to the end that the frauds in the Treasurer's office and in the Treasurer's accounts with the county may be corrected.

After full investigation, being satisfied, from the evidence, of the truth of the Mr. Thompson says, in his testimony, averments of fraud complained of in the that cash was taken out of his drawer for petition, the judgments in this Court on an amount sufficient to cover the aggre- the County Auditors' reports for the gate of all the warrants, in other words, years 1900 and 1901, entered respectively he was robbed; without indicating the on the Auditors' reports of the years 1900 robber. When pressed, on cross-exam- and 1901, are opened, and the county is ination, as to his solution of the matter, granted leave to enter appeals by the he was forced to admit that this could County Commissioners, nunc pro tunc, not be sustained as to the $25,000, bond from said audits of the accounts of Wil47, which never went into the drawer, liam O. Thompson, County Treasurer; and the refunded taxes. He still insists the costs of this proceeding to be paid by he was not long in his accounts, but his the respondent, William O. Thompson. bank book and checks are not produced to corroborate him. No account is stated by him to that end.

We must conclude, under the authorities before cited, and numerous others. that the production of the evidence in his control, and a full statement of his ac counts would be against him; that his explanations or attempted explanations only tend to establish more clearly many of the frauds charged in the petition, and clearly established by the evidence.

The County Auditors audited the accounts in the small room between the Commissioners' and Treasurer's offices, and kept their books and papers in the Treasurer's vault. The Auditors were liberally supplied with whiskey during the audit, purchased from Kister Free, who testified from his memory, refreshed by his books, that the whiskey was furnished by him, and paid for by Thomp

son.

That this was most reprehensible and a badge of fraud, is irresistible.

It is impossible to believe that these forgeries and irregularities existed in the office of the County Treasurer without Mr. Thompson having any knowledge of

SUPERIOR COURT.

American Manufacturing Co.'s Appeal. Rule to Plead-Suspension-Agreements between Counsel-Declaration.

Plaintiff entered a rule to plead in fifteen days or judgment. Defendant entered a rule for security for costs, and the Court directed "that pending the giving of such security all proceedings in the case to be stayed and that the defendant be not required to plead." Plaintiff paid into Court $150 as security for the costs, and more than six months afterward directed the Prothonotary to enter judgment for the plaintiff in default of a plea by the defendant. On petition, the Court below (STEWART, J) struck this judgment off. HELD, to have

been error.

When the rule for security was satisfied, the stay of proceedings during its pendency expired, and the effect of the rule to plead was restored as fully as if it had not been suspended.

Neither a new rule or a reinstatement of the

pending rule was necessary, nor was the de

fendant entitled to fresh notice.

An alleged oral agreement between counsel as to not taking judgment under the rule to plead will not be enforced, where such agreement is disputed, since the rule of Court requires that such agreement must be in writing.

A declaration which sets forth the sale and delivery by the plaintiff to the defendant, at a

18, 1903, and in default thereof judgmedt may be again entered for want of a plea. By the Court. STEWART, J."

given date, of a certain quantity of merchandise, plea in said case on or before December at a specified price, payable at a fixed time; the performance of a certain service, upon the defendant's agreement to pay the expense thereof, with the date of performance and the expense incurred, and the whole amount that the plaintiff believes that is justly due it from the defendant, is sufficient in law on which to base a summary judgment.

The omission to levy a venue in the declaration is immaterial.

Even if material, such omission is cured by defendant's failure to plead,

It is unnecessary to show, in the declaration, the title of an equitable plaintiff, or to indicate his interest otherwise than by marking the suit to his use.

Appeal from Court of Common Pleas of York County.

The striking off of the judgment was excepted to by the plaintiff, and the case appealed to the Superior Court.

J. St. Clair McCall and R. E. Cochran for appellant.

Jere S. Black and Chas. A. Hawkins for appeal.

May 14, 1904. SMITH, J.-The direction, included in the rule to give security for costs, that pending the giving of such security all proceedings in the case to be stayed, and that the defendant be not required to plead," merely suspended Suit was instituted on December 31, the operation of the rule to plead until 1902, and statement filed same day. Jan- the rule for security was disposed of. uary 15, 1903, affidavit of defence filed. When the rule for security was satisfied, January 23, 1903, rule on the defendant the stay of proceedings during its pendto plead within fifteen days after service ency expired, and the effect of the rule of notice of entry of rule or judgment. to plead was restored as fully as if it had January 23, 1903, affidavit of service of not been suspended. The residue of the rule. February 2, 1903, rule on plaintiff time stipulated in this rule began to run to give security in the sum of $150 for when satisfaction of the rule for security costs, and the Court further directs that was entered of record, irrespective of inpending the giving of such security all dorsements relative to filing; and at its proceedings in the above case be stayed expiration the defendant was required to and that defendant be not required to plead. February 16, 1903, the Court plead or suffer a default. Neither a new plead. February 16, 1903, the Court rule or a reinstatement of the pending permits the payment of $150 into Court rule was necessary, nor was the defendas satisfaction of the above rule. October ant entitled to a fresh notice. Generally, 30, 1903, judgment by the Prothonotary the parties are required to take notice of at request of plaintiff's counsel in favor the disposition of interlocutory rules; and of the plaintiff and against the defendant certainly it is not too much to require a for $741 and costs of suit, defendant havparty to know the disposition of a rule ing failed to plead. October 31, 1903, entered on his own motion. The omismotion to strike off judgment, the peti- sion to fix, in a rule, a day for hearing is tion alleging an oral agreement with the chargeable to the party taking it, and he venience in learning its disposition. In cannot complain if it puts him to inconthe present case, the defendant's counsel 2, 1903, rule granted to show cause why had knowledge of the satisfaction of the judgment should not be stricken off. rule to give security, for a much longer November 10, 1903, answer to rule, specifically denying any agreement. De- rule to plead, but appears to have delibperiod than the time stipulated in the cember 14, 1903, replication and testi- erately disregarded the requirement of the latter rule on the ground that fresh

counsel for plaintiff that judgment should not be taken for want of a plea without further notice to defendant. November

entered. This view was erroneous, and the plaintiff was entitled to a plea or judgment at the expiration of the time stipulated in the rule to plead.

mony filed. On December 16, 1903, the "rule notice should be given or a new rule granted November 2, 1903, to show cause why judgment entered in this case should not be stricken off is made absolute, and the judgment entered for want of a plea is set aside in accordance with Rule No. 5 under head of pleading in Court Rules and the defendant is directed to enter a

The plaintiff's right to judgment, upon the defendant's default, was not affected by the alleged oral agreement or under