first five reasons allege that the information does not sustain the counts in the indictment. Upon inspection, we find the information well drawn. It sets forth that on or about January, 1921, the defendant entered the employ of Paul M. Kahler, in the capacity of salesman and agent in the sale of cigars at wholesale, which employment continued until September 1st, 1922; that at divers times within the two years last past, the defendant, as agent or salesman, and in the capacity as employee and having authority to collect, demand and receive moneys belonging to Paul M. Kahler, received into his hands moneys belonging to Kahler, in the aggregate sum of $1980, which he fraudulently withheld, converted and applied to his own use. The information is closely drawn to the wording of the Act. It is not necessary that the information lodged with an alderman or magistrate recites the commission of an offense with the same nicety or exactness that is required in the indictment. It is sufficient if it set forth, in substance, the commission of an offense upon which the commonwealth may base an indictment. The first, second, third, fourth and fifth reasons are dismissed. The sixth reason alleges that the indictment violates sec. 28 of the Act of March 31, 1860, providing that in cases of embezzlement by clerks, servants, or other persons in the employ of another, not more than three distinct acts of embezzlement can be laid in one indictment. A comparison of sec. 107, under which the second count in the indictment is framed, and sec. 28 above referred to, providing that three distinct acts of embezzlement may be charged in the same indictment, convinces us that sec. 28 refers only to sec. 107, and does not apply to sec. 114. Sec. 107 referring to the fraudulent embezzlement of property by clerks, servants or other persons in the employ of another, makes such an appropriation a felonious taking. A violation of sec. 107 is a felony. Therefore it becomes very evident as to why sec. 28 was enacted. While several acts of misdemeanor may be set forth in different counts in the same indictment, several distinct felonies cannot be joined in one indictment unless expressly permitted by statute. We need not here note those exceptions, sufficient to say that a violation of sec. 107 being a felony, only one distinct act of embezzlement under that section could be set forth in one indictment, if there were no further legislation on that subject. In view of this doctrine of the law Sec. 28, referring especially and distinctly to the fraudulent embezzling of clerks, servants or other persons in the employ of another, was placed upon the statute books, to permit the joinder of three distinct violations of section 107 in one indictment, and no more. Sec. 114 does not speak about embezzlement, but refers to the offense of converting and appropriating the property of another, intrusted for safe custody. This offense is a misde meanor. We fail to see the application of the sixth reason, as well as reason number seven which alleges that the indictment violates the Act of Assembly providing that only one seperate and distinct offense may be included in one count. Both counts in the indictment set forth but one offense; the first count alleging the conversion. and appropriation of the sum of $1980, the second count alleging the fraudulent embezzling of the sum of $1980. It is true that the bill of particulars filed by the officer of the commonwealth and which must now be read in conjunction with the matters alleged in the indictment, recites a lesser sum that $1980; but the Commonwealth is not obliged to prove the amount set forth in the indictment. If proof of a lesser sum is sufficient to sustain a conviction, such proof is admissable even though a larger sum is set forth in the indictment. The bill of particulars alleges that the defendant converted and appropriated $134.25 of the moneys of the prosecutor in July of 1922, and the sum of $557.38 in August of 1922; the time laid being within the period of limitation. We are not to lose sight of the fact that the Commonwealth alleges that the defendant was the agent, in the employ of the prosecutor, for the entire period of the defalcations. The Commonwealth says that these moneys so taken were collected from various persons, who are named, for the prosecutor, and the aggregate sum so collected was not turned over to him by his agent. The policy of the law as laid down by our Supreme Court in Commonwealth v. Mentzer, 162 Pa., 646, is clear and reasonable. In this case an indictment for embezzlement was found against a prothonotary of the county who failed to pay over to the state treasurer the portion of fees collected by him and due to the Commonwealth. The Supreme Court said, "While as a matter of public policy each act has been individualized and made to amount to the full and completed offense, the statute could not, nor has it attempted to, change the nature of the acts as possible parts of the same transaction, and where that is in fact the case, and two or more of the enumerated acts are in truth only successive steps in one appropriation or embezzlement of the same money, it would be contrary to the fundamental principles of our criminal jurisprudence to hold that they had not merged and become but one offence. The possible consequences of any other view are too serious to permit its entertainment." This case is numerously cited: See Com. v. Swab, 59 Pa. Sup, 485; Com. v. Sitler, 67 Pa. Sup. 1; Com. v. Wheeler, 75 Pa. Sup. 84; Com. v. Basha, 80 Pa. Sup. 320. Surely the statute does not intend that a person, acting as an agent for another in a certain business which requires the collection of money from various and numerous individuals, and then defaults, should be prosecuted for each individual receipt of money and the conversion thereof. Such a construction of the statute would prove burdensome and cumbersome for the Commonwealth, and prove extremely harsh to a defendant, for in the instant case, and in many prosecutions for conversion or embezzlement, such a procedure would lay him open to such a multiplicity of prosecutions, which resulting in convictions in each case, might inflict life imprisonment upon him. We will hold that the Commonwealth alleges but one offense, the result of a continuous transaction. The defendant has ample notice as to what he has to meet with a defense. The amount of the alleged conversion or embezzlement is given, and the names and addresses of the persons from whom he is alleged to have collected are enumerated. He need prepare for no further defense except as to the matters alleged in the bill of particulars, and that is plain. If he is either convicted or acquitted under this indictment, he need fear no further prosecution, upon these charges, for he may then well plead former conviction or former acquittal. The eighth reason has been disposed of. We have noted, with regret, the large number of witnesses subpoenaed by the Commonwealth when this case was first placed upon the trial list. This is not to happen a second time. The Commonwealth is to subpoena only such witnesses as are necessary to sustain the matters alleged in the bill of particulars. The motion to quash the indictment is denied. MAUSER v. LERCH. Equity-Jurisdiction-Remedy at Law-Orphans' Court Act of 1918, P. L. 363, Sec. 9. A court in equity has no jurisdiction when a litigant has a full and adequate remedy in another tribunal. Where a decedent, with others, entered into a written agreement, relating to the purchase of shares of stock by the others, in the event of the death of one or more, and in equity the widow of decedent sought to compel the executors to enforce the contract, Held, that under the Orphans' Court Act of 1917, P. L. 363, Sec. 9, the Orphans' Court had jurisdiction, in the settlement of the decedent's estate, even though the widow had elected to take against the will of decedent. Query, whether a bill in equity can be dismissed for want of jurisdiction unless a demurrer or answer raising the question of jurisdiction has been filed. In the Court of Common Pleas of Lehigh County, Sitting in Equity. No. 1, April Term, 1925. Anna R. Mauser v. Harry J. Lerch and Citizens Trust Company, Executors of the Last Will of J. Mark Mauser, deceased. Bill in Equity. Preliminary Injunction. Injunction dissolved. Dallas Dillinger, for Plaintiff. Reno, P. J., March 16, 1925. Plaintiff's bill recites that she is the widow of J. Mark Mauser who died August 3, 1924, testate, and of whose will defendants are the executors; that she has duly elected to take against the will; that the inventory filed by the executors discloses that testator owned 2420 shares of stock of the Mauser Mill Company; that prior to his death, decedent, Harry J. Lerch and George B. Mauser entered into a written agreement whereby each agreed "that upon the death of either, the survivors shall and will within fifteen days thereafter purchase the shares of stock of the Mauser Mill Company owned by the other at the time of his decease at the price of $100 per share;" that defendants have failed to have the rights of decedent's estate in that agreement determined by a court of competent jurisdiction; that plaintiff is willing that any shares of stock to which she may be entitled by reason of her election shall also be sold to the survivors according to the terms of the agreement and that, without attempting to enforce the provisions of the agreement, defendants have advertised the shares of stock for public sale. The bill prays for (a) an injunction restraining the sale and for (b) a decree commanding defendants to tender the decedent's stock to Harry Lerch and George B. Mauser in accordance with the agreement, to enforce the terms of the agreement, and to afford plaintiff such redress as she may be entitled to under the agreement. A preliminary injunction was issued prohibiting the sale of the stock. Within the period provided by the Equity Rules a hearing was held and plaintiff presented her proof which sustained the allegations of the bill. Upon the conclusion of the testimony, defendants moved that the injunction be dissolved upon the ground that the court had no jurisdiction of the controversy. This motion was held under advisement, the injunction being allowed to stand until a decision was made. It will be observed that there is no allegation of fraud, accident or mistake, nor of any other grounds which are peculiarly cognizable in equity. The object of the bill, then, is to require defendants, in their capacity as executors, to do a certain act, namely, to tender to the survivors of the agreement testator's shares of stock, to offer to sell the same to them and to do other acts necessary to enforce the provisions of the agreement. Obviously, chancery is invoked to control the administration of an estate which is in process of settlement in the Orphans' Court. In these circumstances, we are obliged to hold that plaintiff has, for reasons which we shall presently present, a full and adequate remedy in that court and that we may not take cognizance of her cause. |