GIBSON PEACOCK., Editm•:
WEDDING}CARDS, INVITATIONS
for Latium, Bte. Now etyln4. MASON Lc CO, 907
lObeb-ttltst flan-wt. deArmw tf§
mrEDMING IN VltaTtOth3 ----
AEC 1 1 1 1t h :er ne = a k i tgr b g t er mil . nt 107 . 04 6 = 1 4
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----
MARBLED.
11 A1100N—OWN.--On the lilth inst., by the Iter.
WlHim Stithlords, D.D., Mr. Joseph 8. Ohntaoon or
'Wilkesharm Ps. to Miss Mary U ., daughter of 'the
late Mr. Charlts , l4ren, or liirston, Mass:
CIIAME.—At his late residence, Salem, Mass., on the
1 1 th inst., George Helen Chase.
Inners! to take mace on Monday, 11th inst.
TAYLOR.—On the 14th inst., Charles Taylor, in the
h year of his age.
The relatives and male friends are respectfully invited
to attend his funeral. from him late residence, n 0.211 ja.
~mby street, on Thursday morning next, at 10 o'clock.
To proceed to Monument Cemetery. •
AI,ToN.-011 the 11th lust., James Walton, in the
tar tat hie age.
Ills telativoo mid friends are respectfully . Invited to at
tend thr funeria, from the re.ildelly, of hie ou, Na. loot
Lonnl Vernon ~tiort, on Teesday, the Lsth instant, at 2
lock.
WEUTCOTT.—On Sunday, the 13th inst., Caroline C.,
wife of Gideon G Westcett, in the 61st year of h er age.
Funeral from the residence of her eon, 123 South For
tieth street, on Wetinosda afternoon, a t one o ' c l ock. •
f
AROF: 'PLAID NAINSOOKS FOR LA
-4 DiEs' IVIRAPrEItB.
SATIN PLAID cAMISRICS.
SOFT FINISH ('AMBIUM+.
MULLS ANT) FRENCH ISII.IBLINS.
EYRE & LANIAML.
SPECIAL NOTICM'
Finest
Ready-Made
Clothing.
OHN ' W ANAMAKER,
+f#2o
(I[iEST ITT
Youths'
And BOys'
IDlGthing.
110RACIE, GRLEI EY
AT TOE
ACADEMY OF MUSIC
TUESDAY EVENING, Febrnary 24.
Subjeet—'• THE WOMAN 441.'ESTION."
Sale t.t tickets at ASIIME.III'3, 724 Cheatnnt Street,
will begin' idt WEDNESDAY, leitb that., at 9 UCIOCI.
IfeePrs.vl&atx•7sernta. Adtakklon and Stage
nn C. 11104. 1te...n4-4 &aft in Family
fell 12 14 1* 14 22
COURTS.
CONTESTED ELECTION CASE
.10gnicot of the Court Wow Affirmed
THE CHIEF JUSTICE DISSENTS
.The Schoeppe Case
hew Trial Refused and Judgpeat Affirmed
C 01.11T—Chier Thourwon
and .ImticeJ Head, - Agnew, Sharswood and
Williams.
.Instice Agnew read the.opinion orate Court
iaf tho Contested Election Case, as follows :
Farman Sheppard re. 6ainuel Hell et al. C.-rtierari to
the Ct.iirt of Quarter l! , e14011S of Philadelphia county.
Dark! P. Weaver ra. Sainit , l Hell t et. arti"ratt to
th. Court of Common Mega of phi hod phi a county.
Alhett W. Fletcher vv. Samuel Bell et al. Ce r rriorari
1,. Vito Court of Common Plea, of Philvoielphi% comity.
Cleorye Celz vs. riamuel fell 't al. tf.-rtloretri to the
(:our, olColumou Fiesta of. Philanelphia comity.
Itotidta J. Barger ra. Samuel ISM et al . Certiorari to
the Court of 4'tuntoon Pleam of Philadelphia con ntr.
John M. Melloy va..Sautuel Bell kt (.;, -, invari to
I OM
or
COMM.!! Plea” of Philad , lphia count y.
°pluton of the Court.
Agnew, J.—These are important CMCS.
They are political controversies ; to be re
gretted, yet for this reason to be met in a
spirit of candid inquiry. The _contest of an
election is a remedy given to the peciple, by
petition, for redress when their suffrages have
bet u thwarted by fraud or mistake. Tho eon
.stituted tribunal is the Court • ot - Common
Pleas, or the Quarter Set , sionq, te: the case
may be. By the acts of July 2, 1839, and Feb
rnary 3,1 R: 4; the Court is to " proceed upon
the incrits of the complaint, and determine
duallu concerning - the same, according to the
Maws of this Commonwealth." No bill of ex
options is given to its decisions, nor appeal
allowed, and its decisions are final. Conse
quently the Supreme Court has no jurisdic
tion over the subject
The attempt to press into service the act of
1867, as giving an appeal, lacked the earnest
ness of conviction, and `needs no refutation.
It gives no appeal, while the appeal given on
the receiver's consent excludes the presnmp
lion that any other appeal was intended. The
finality of the nets of 1839 and 1854 remains,.
and there is no implication of an appeal, for
there is no incongruity in this respect. It is
only in ease of a strong repugnancy that a for
mer law is repealed by a, subsequent act.
Street vs. Commonwealth, 6 W. 88, 208; Bank
vs. Commonwealth, 10 Ban., 449; Brown vs.
County, If Harris, 423
Whi• then have the merits been so strongly
'urged.? Why have' the cases btten
termed appeals, and the parties appel
lants and appellee*? Nothing but
.41)1011E3mi can flow from these designations.
The certiorari is a well-known writ, bringing
up the record only. The parties are plattsifts
and defendants in error, and not appelrints
and appellees. The argument on the facts was
therefore outside of the record. That the
merits belong exclusively to the Court below,
and cannot lie reviewed here; is a settled ques
tion. .Carpenter's ease, 2 Harris, 4811. The
Court there granted the certiorari, Gibson, C.
1 ., saving that "having no appellate jurisdic
tion, it could not ho respectful or roper to ex
press an er.tra judicial opinion on the regularity
of. the probeedings." In like manner • this
Court quashed the certiorari in Ewing vs.
Pal
ley, 7 Wright, :;5 . 4. " Our duty (said LovVrit.
4). is a very restricted one; for, as is admit
ted; we cannot retry the case on the evidence,
but can only consider whether it was tried be
fore competent authority and in proper form."
What the c'ertiora ' ri brings up is equally cleat.
This is very plainly stated by Woodward,
in Chase vs. Miller, /1 Wright, 412-13 a con
tested ,election case. After explaining- onr
general power of review, ho says: But this
m
statee .
statement is to received with a very impor
tant quahfication•:.--,that the errors to be re
viewed shall appear oil; the record. This is
necessary to, all appellate jurisdiction whore
cases etune.up , by writs of error or certiorari.
The only rriode provided by liter for bringing
oridevec or the opi . aion. of an inferior Court
upon .whatis technically called the record is
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by a bill of exceptions, sealed and certified
by the judges, and as bills of exception are
not allowed in the Quarter Sessions, no ques
tion which arisen out of the evidence in that
Court Can begot up into this Court. Hence,
while certiorari lies to the proceedings Of the
Quarter Sesstione in road eases, in pauper'
cases, in contested election cases, and in other
statutory causes committed to the juriediotion
of that Court, the writ brings up nothing but
what appears on the record, without a bill of
exceptions," That neither thoitestimony; nor.
the opinion Of the Court, is broUght With-the
record by a certiorari, has been reiterated over
and over again. I refer to a few of the recent
eases to show that we have not departed from
the doctrine of our predecessors: Common
wealth vs. Gurley-, 9 Wright, :192—Iudictment,
per Thompson, j.; Church street, 4 P.P . :Smith,
:!53—Read ease, per Thompson, J.; Oakland
11. W. vs. Keruan, 6 I'. F. Smith. 198—Justice
and jury on Sheriff's Sale, per Wood,ward C.
J.; Pluuket Creek VS.Fairfield, Br. F.Smith—
Pauper ease, per strong, J.; In Pennsylva
nia Railroad vs. German Lutheran Congrega
tion, 3 'P. If. Smith, 445, a strong effort was
made to get before as the merits ofa view and
assessment by a railroad jury, and the subject
was again examined elaborately, and the
same conclusion reached, , 'The strenuous ef
fort to induce us to review the 'testimony, cal
culations and opinion of the Court in these
eases was therefore contrary to the settled law
of the writ of certiorari: This excludes
from our vonsideratiOn the report
of the , • examiner, - all the calenhie
lions, and •all, the Copit did, either
by. striking out or purt.Ong- polls, They. aro
not in the record, and all assignments of error
forwarded 'on -them fall.'
Putting aside, then. these lures to error, the
remaining assignments may be treated under
three heads—those affecting jurisdiction, those
relating to the procedure of the Court, and
these relating to the frame of the complaint.
This concerns the city officers only. The act
of tsat requires that "at least two of the com
plainants shall take and subscribe au" oath or
atlirmation that the facts set forth in such
complaint are !hie." The oath to the petitions
reads that the facts ate true, to the best of
Mei% hicfrictige and belie/:" This addition, it is
asserted, opens the strength of the oath—that
the law requires the absolute truth of the facts
to he sworn to, and not the best knowledge
amid belief of the ani ants. DOE'S the law mean
absolute verity: This is the quetion. The
ttentfon of the law given must be discovered
not only from the words, but' from the object
of the law, the special purpose of the oath, the
Dann: of its subject, and the character and
jurisdiction of the tribunal. The object of the
law is to give the people a remedy. It is their
appeaf front the Election Board to the Court
trent, - It , :election-- -at-a false-return i .
The law is therefore remedial, and to be con
strued to advance the remedy. The special
ran pose of the oath into iiiiktre this remedy.
r(i give it the impress of good faith and pro
baldly cause. The proof, of the filets must
fi , dom,.not precede the complaint. It is con
trary to our sense of justice and to all analogy
to say that a remedy shall nut begin till 'the
ease has been fully proved. The law being
remedial and the oath initial only, it is not to
be supposed the Legislature; representing the
people, ietended to subject the remedy to un
reasonable or impossible conditions. , The
remedy would be worthleis awl the Legisla
ture' stultified. Correct interpretation will
show this result. This brings us to the sub
je of the oath. In a city of 800,000 inhabit
ants, embracing a surface' of many square
miles, no two nor two hundred men can be in
vested with the übiquity and the omniscience
to see and to know all the facts in every pre
cinct necessary to contest the whole poll of
the city. Nay, they could not. from personal
knowledge, contest the poll of' a single ward.
Besides there are essential facts th -y cannot
know personally, They cannot pry into the
ballots. They n pay believe, or may be credibly
informed. that 153 unqualified persons voted
a certain ticket, but they cannot know
it; yet this knowledge is essential to the
contest. Their knowledge, to be personal, must
be as übiquitous as the the fraud and as
thorough as the whole number of voters, their
residences, qualification; and ballots, and
comprehend all the unlawful acts of every
election board. In this instance 120,000 veto.
were polled in 266 precincts. Now it is simply
impossible that 2W°, nay, all the fifty-petition
ers could personally know the facts necessary
to contest the noll of the entire eity. The
Legislature did not mean this vain thing.
1. , '/* non introdit aGifutti invwsibile. Lea nil "wit
foi,stra ail—jnbet fritstra. It is the duty of a
Court to consrtne a statute, if possible, at re
raleot gum. Huber vs. Reilly, 3P. F.
Smith, 115, 117. These principles have been
stated with much force, and with a reference
to the highest authority,in Schuylkill Naviga
tion Co. vs. Loose ' llairm 18 7, 19. The ease
conies, then, right to this point. The oath
Must n; made from credible information, or
not at all. In the poll of such a city, the
aftiant cannot swear to more than to the best
of his knowledge and belief. It would be an
imputation on the framers of the law to think
otherwise. The argument that no indictment
would lie for perjury upon this form of oath'
is fallacious. 1f the act means an oath in-this
form, then the oath in that form is an oath
authorized by law, and an indictment for its
corrupt, and artful breach will lie.
Gents'
Furnishing
Goods.
Fashionable
Merchant
Tailoring,
We must consider also the tribunal to hear
and decide .on the petition. It is a high con
stitutional 'court, competent to decide on its
own jurisdiction., Its jurisdiction being ex
clusive and final, it necessarily decides it for
itself'. There was no omission of anything to
confer jurisdiction. The petition came from
the requisite ninulir of qualified voters,. wlti3
presented in duo time, and its .truth was sworn
to by two of their number. The Court having
a rightful and general jurisdiction over the
subject of the petition, assumed it, heard the
proofs. and found the fads alleged to be ac
tually true, and set aside the return as false.
Now, after a decision on the merits which
have been established on sufficient evidence,
can we oust the jurisdiction for an alleged error
in the interpretation given to the language of
the oath'? This would be dangerous ground to
take. The law does not prescribe the /brat of
the oath. it certainly was for the Court in
judging of its own jurisdiction to interpret the
words of the affidavit. It did so; heard the
case;
found the facts to be true, and decided
on the merits. See Carpenter's case vs. Harris,
486. Overseers qfTioga vs. Overseers of
Lawrence,2 Watts, 43. Ylunket's Creek Town
ship vs. Fairfield Township, 8 P. F. Smith ' 209.
The question as to. the power of the City
Recorder to adminiSter the oath, stands on the
same footing. It was a question which the
Court below necessarily decided for itself.
There was an oath actually taken and cer
tified. The of certifying it has power
to administer oaths. His commission was con
ferred by the Governor, by and with the con
sent of the Senate, for a term of ten, years
and during good behavior. His character Is
also judicially rectignised as magisterial.
llhodes vs. Commonwealth, 3 Harris, 277. By
the act of .1817, he has authority to take the
proof of deeds and other ivritings, and to issue'
writs of habeas cm-pis, and give relief thereon
as fully "as the President of the Common Pletv§: ,
These powers imply his authority to adminfS
ter oaths, without which he could not swear
the witnesses. . The act of March 81, 1860,
punishes perjury committed upon an oath
taken before the Recorder, classing it with
oaths taken 'idol*, any:judgejitstice, alder
man, &c.,
before' villein Oaths may be taken.
The Court of Common Pleas had deoided also:
that he had the authority to administer oaths:
Schuman vs.'Schnmati,'Leg. Int.; 1867, p: 21.
Tlitis,being a commissioned offieer;and Navin
power adiffinister oaths by his - certificate of
probate to the petition , he assOrt6l.-lils
thority to administer that oath • Prinics
. .
therefore, the oath was regularly made, and
being accepted, was before the court. The
court having a 'general and rightful jurisdic
tion over the subject , a . the petition, assumel
it, and in so doing, decided the affidavit to be
faifficient It is'not the vane of the absence or
any affidavit, but is the case of an affidavit
prim« facie regularly made: Now, after having
possession of the case in a manner, clearly
legal and regular, ;at least to a'
prbiza facie extent, and after having heard the
ease on its merits and found the - truth sot . alt
the facts necessary to, a case on the merits,
how can we go behind the certificate of the
Recorder to inquire whether , his conceded
authority to administer oaths extends to this
particular proceeding? The oath was only
necessary to irritate the proceeding,which has
now been proved bysufficient evidence to be
well founded and true. If we can now go
behind his certificate, after a decision on the
merits, no proceeding is safes Wo may as
well inquire whether all the petitioners were
qualified voters and if we find one disquall
•
lied by non-residence, non-payment of taxes,,
or a defect in his naturalization certificate, set
aside the whole proceeding. This would he a
dengerous doctrine, and opposed to the prin
(spies decided in the cases just referred to.
The correctness of the oath in these cases Is
supported by that required to Contest the
election of the Governor, members of assem
bly, judges, county officers, &c., to wit: That..
" the facts stated in this petition are true to
the Goff of their knowledge and belief" It cannot
he supposed the Legislature meant to exact
severer terms in order to Contest an election
of city officent—indeed; to require an firings- .
eible. condition. But analogies are appealed
to. It has been decided that an appellant
from an award must swear that he firmly be
lieves injustice has been done, and less will
not suffice. This is true, but the difference
lies
h etween knowledge and belief.
,It is not un
just to require of : a suitor knowing
Ms own case a firm belief of
injustice. On the other hand,' suppose we
,were asked to say that the appellant must.
swear to the absolute truth of injustice, and
thus compel an ignorant man to swear to the
late, as well as the facts? This would be, un
reasonablerand it is quite as Unreasonable to
ask a man who cannot know all the facts to;
swear absolutely to the illegality of voters, for
whom they voted, the law of residences, of
suffrage, and of the duties of election' officers;
and all else that la necessary to actual know;
ledge of an undue election.
Nor is the argument geed -that the act of
18C0 requires the directions of the act of 1854
to be strictly pursued. Before a statute can
be pursued, we must know what it requires.
If the law require personal knowledge, the.
oath must be so. But this is the very questien,
•to be deeided;aiid audit is Rlegicaf to tell 'US it
means personal knowledge because it must he
strictly pursued. What does the act of 18. A re
quirc---personal knowledge of every fact '
averred,. or only knowledge to the best of
reliable information and belief? If personal
knowledge be not required, that ends the
question,and all the numerous authorities cited
to show how strictly a etatute mast be piusued
are inapplicable. .
Nor ean,the petition be kened to a response
in chancery. It is not a proceeding to compel a
discovery of facts home to the party; but
is simply a complaint to initiate an inquiry in
good faith. Its foundation can be reliable in
formation only, and therefore not absolutely,
but credibly, true. In conclusion, on this the
only serious question, we Lave ample authority_
so to construe this act. "As to the cored-ruc
tion of statutes,it is certain they are not always
to be construed aceordiug to the letter." Bank
of North America vs. Fitzsimmons, Binney.
Z• 56. "Acts that give a remedy for a wrong
are to be taken aptitably, and the words
shall be extended or restrained according to
reC6go n and jii.4tice, and according to their end,
though the words be short or imperfect."
Schuylkill Navigation Company vs: Leon, 7
Mains, 18, citing 2 Just., 152, 4 24 e, SPS, 572, and
Doh., 157, 2.99. The word "void" has been
held to mean "voidable." Braddes vs. Brown
field, 2W. & S., 270. "Or" to mean "on."
Levering vs. II It. Co., 8W: (1.7 S., Via. "Or"
aLso has been held to mean "and." Foster vs.
(.7ionnionwealth. lbid, 79, 50.
Wa-_ , the jurisdiction lost by the expiration
of the term in the case of the Prothouotary?
in this respect the law is directory only. The
act to he done is judicial, anti not ministerial.
The Courtcannot " proceed on the merits" of
the contest without time to take the testimony
and to hear and decide. If the, testiniony be
voluminous, as it must be to correct so
hags a poll, the merits cannot be
revelled without time, nor can , the
merits be reached if delayed, as here, by
dilatory • motions. It would be a harsh con
sunction to defeat its own purpose by re
ring au impossibility of the Court:. Analo
gies ere against it. Cominonwealth vs.
Sheriff, it; s. & ii.. :iu. Sup. Watson, 2
Wharton, 501. Commonwealth vs. , Tailor, 7
Watts, 566. Clark vi. Commonwealth, 5
Casey, 12g. In these cases a similar limitation
was held not to oust the jurisdiction of the
Coureaud it was said "There is no doubt that
necessity, either moral or
to'
raise
an available exception to the statute. The
act of 1810 requires ccrtioraries to justices of the
peace io be decided " at the term to which the
proceedings are returnable" Yet what law
yer ever heard that a certiorari fell with the
expiration of the term? It would be a mockery
of justice were the peeple to be .told, when
seeking: redress against dishonest servants,
that the voice of the judge is silenced in the
midst of his sentence, or the uplifted arm of
the law struck down by the stroke of the
clock. The matter has been wellstated by Al
lison, J., in Stevenson vs. Lawrence, I Brews
ter 1:4-5.
The next head is the alleged errors of pro
cedure. The power of the Quarter Sessions
to appoint an examiner is questioned. This
aflects the case of the District Attorney only.
The constitution and powers of the Court of
Quarter Sessions under the Organizing act of
Pith of June, 1836, leaveno doubt of its power
to take depositions, and consequently, to ap
point examiners for this purpose. Ties
is the practice in road and pauper
cases. The Quarter Sessions is classed with
the other courts in this act in respect to
many of its powers; and the 21st section en
acts : "Each of the said courts shall have full
power and authority to establish such rules
for regulating the practice thereof, and for
expediting the determination of writs. causes,
and proceedings therein, as in their discretion
they shall judge necessary or proper ; Fro
ck ed,That such rules shall not be inconsistent
with the Constitution and laws of this Com
monwealth." This being an enabling act, is
to be liberally construed. The power to es
tablish rules for all cases embraces the power
to make a rule in this particular case. Ovine
mains continet into Yllliu s.
he next error' of proceediug alleged is the
allowance of the amendment to the cases of
District Attorney and Prothonotary. This
was not error, but fell within the sound discre
tion of the Court. The :grounds of allowance
are not in the record, and cannot be reviewed
by us. The amendment was not of an omitted
prerequisite necessary to confer jurisdiction,
nor of matter essential to the frame of the peti
tion, but was a mere specification of a fact
comprehended within the general terms
of the complaint, and belonging only to the
proof.' The miscount of 40 votes for Sheppard,
which belonged to Gibbons; occurred at the
81.11)1e electionsentered into the same general
return, and affected the result. The matter
perfainedto the satne.case, and was necessary
to determine it s.e on its merits." The power
of amendment exists. at', eemmon and
falls within the disteetion of 'the court, and
eannot , be revised. To the numerous aetherities
cited by the defendants in . error we may add
roveha ppeal, 1 Wright, 443; Cambria
OUR WitOLE COUNTRY.,
Tomb, 12 Wright, 338; Mid, 445; Boyd vs.
Negiey, 4 Wright, 377 ;Same vs. Same, 3 P. P.
kntith, Pennsylvania Railroad vs. Gor
man Church; 3P. V'..timith, 445. And in point
of reason, why should the court not have
power to amend in a contested election case?
It judicial remedy, and concerns impor
tant rights. On what ground should the cause
of the people be held So . strictly that a Mere
specification.of facie within the same general
complaint, relating to, the same....conti.;st,and.
'the same returns, could not be allowed in or
der to reach the very " merits" the court is or
dered to try. It does not appear from the record
that the matter was Illegal,, or was objected
to, or that surprise was alleged, or was Matter
not developed In, the testimony. The right of
a court to make an order necessary to the jus
tice of the case mine pro taw caunot be ques
tioned. In Fitzgerald vs. Stewart, 3 P. F.
Smith, ::743, a power was supported, to enter
judgment nunc pro tune six months after ver
dict in condition of slander, to prevent au
abatement of the suit by the death of the
plaintiff, and after motions for a new trial in
arrest of judgment and to abate the writ. In
Slicer vs. Bank of Pittsburgh,(; Howard, 571-
379, a judgment men; pro ,teen was entered in
1836 to support a Sheriff', sale made in 1820,
and was sustained upon numerousauthorities.
The last head is that concerning the frame
of the complaint. The refusal of the Court to
quasi] the petition is not a ground'' of error.
Their jurisdiction is entire and inclusive, and .
a motion to quash is a matter of discretion.
(1l *p. vs. Cleaver 4,Yeates, 37.) In this court
there can - be but one inquiry—whether the
petition is'sufficient in its fraMe,audsetts forth
aproper ground of contest, We shall do the.
'plaintiffs in error fiill justice in permitting the
asidgnments of error to stand as an exception
to the sufficiency of the petition. Like act in
dictment, a bill in equity or a libel, when the
record of it is before 118, we can only iiaquire
whether it sets forth a sufficient charge of com
plaint. The evidence in support of the charge
is'a different matter, and need not be set forth
or specified. The law dues not demand it, and
no analogy requires it. Indeed, the reverse is
truc,for the court is required to "proceed on the
Merits thereof," indicating thereby that the
proceeding is not to he embarrassed by tech
nicalities. Then why should a contested
election petition have more precision than
other complaints at law, civil or criminal ?
The tendency to set aside an undue or fraudu
lent election is as important as remedies for
Other injuries. If the life, liberty, property,
and 'happiness of the citizen demand certainty
to, a common intent only, why should a
contested election require more ? Indeed,the
nature of the subject demands even less. The
innumerable frauds abounding in an election
where 120,000 votes are polled in 266 precincts
render. a 'minute spetificatiOn — inipeSsible"
within ten or twenty days. The only safe
'course in such a ease Is to proceed in analogy
to the practice in other cases, by a notice of
particulars, ordered and governed by tiled's-,
cretion of the Court. It would be an intolerable
technicality if the petitioners were required to
set forth in their complaint within ten days
after the election every illegal vote, every
illegal act of the election boards, and every
instance of fraud. Such a nicety would pre-
Vent investigation, and s:eteat the remedy
itself. The general rule in all pleadings is that
certainty to a common intent is all
that is required. Heard & Stephen's,
P. C., 380. The early decisions in
this city were too stringent. A much
truer exposition of the law, and ono to be . ad.
hered to, is found in the opinion of the late
Judge. Thompson, in Mann vs. Cassidy, 1
Brewster, pp. N, 27. As remarked by hint
"The rule must not be held so strictly as to
afibrd protection to fraud, by which The will
of the people is Set at naught, nor so loosely
as to permit the acts of sworn officers chosen
by the people to be inquired into without ade
.quate and well defined cause."
We find many analogies to guide us. The
general rule in all indictments, says ;ergeant
8, is that the charge must be positively
averred ; but in what eases it s or is not suffi
ciently averred, is not ascertained with pre
cision, and must be left in a great measure to
the legal discretion of the Court. Certainty to
a common intent in general only is required,
and not' certainty in every particular. Sheehan
vs. Commonwealth,B Watts,2l2. Whether a bill
of particulars or speciffeation of facts shall be
required is exclusively in the discretion of the
presiding judge. Whart. C. L. f 201, citing
Commonwealth vs. Giles, 1 Gray 466. R. vs.
Kendiffieh, 5 Ad. and E1..149. R. vs. Hamilton;
C. and F., 448. See also Commonwealth vs.
Ilfint, 4 Metcalf, 12.5. In a libel for a divorce
it was held that the proper practice is to give
notice that between two specific: dates acts of
'rnelty, etc., are intended to he, proved. Steele
vs. Steele, 1 Dallas. 1( sr. See also Ganatt vs.
Ga mitt, 4 Yeates, 244. ,
There aremans- cases, at common law and
under statutes, where, the "description is
general, and because of the Multitude of par
ticulars constituting the offence or complaint,
the prosecutor may be • required to
, Tivo
notice of the acts intended to he proved. rims
in tho case of a common narration, 1 Russell
on Cr., 185-6 ;2d Hawkins C. L., e. 25, 5 ;,u;
and disorderly houses, houses of ill fame, and
gaining houses. Wham C. 4 Ed.. g 289.
Tippling houses, Commonwealth vs. Baird, 4
S. and R.. 141. Lottery tickets, Common
wealth vs Gillespie, 7S. and IL., 469. Timber
tries, Morpi vs. Commonwealth, 7Barr ' 489.
The Court remarked in the last case that the
Legislature never intended that an indict
ment for timber trees should be so special
as to defeat the end proposed. We may refer
also to the cam of Commonwealth vs: Banker;
7 Harris, ,412, for using vulgar and obscene
language to crowds ;• and 'oumionwealth vs.
2 Smith, 24:1, the case of a common
scold. And see }lily vs. Commonwealth, 7
Ban. 277, find Commonwealth vs. Kisson, 855
IL, -122.
In view of this array of cases affecting the
highest absolute rights of individuals, it is
possible to affirm such a stringent ride as we
are asked to apply to contested election cases,
or to say that this petition is so fatally defec
tive in its frame, it should have been quashed
on motion or set aside on demurrer. It sets
forth in fitting terms the general election' of
ltieS, the persons voted for the number of
votes returned for each, anti the majority for
the persons returned; chargt_!s an undue
election, and fake return, alleges the
election of the opponent, and sets forth
the grounds of the illegality of the oleo.
lion. It charges that the officers of the elec
tion fraudulently conducted and carried on the
election, with a wilful disregard of all the re
quirements of the law ; and then specifies their
various fraudulent acts by means of which
the fraud was perpetrated, and illegal votes.
suffered to he cast for the person returned.
here 'I 'may notice in passing the omission
to set the letter V opposite the names of
the electors who had voted. This is speci
fied in the petition as one of the framin
, lent acts of the election officers, and not as
a cause in itself tutilicient to, set aside the
election. The petition then avers that all
these acts were done and committed with the
intent and , purpose of hoidingj, an undue
Lion, and to prevent an honest e&pression of
the popular will and a true ascertainment of
the real votes of the qualified voters; and that'
in pursuance of this conduct the popular will
was not ascertained, but was defeated, where
by the election was rendered false, &audit
lent, undim .and void, and the'-'return
void; , and should thercforo , di*
regarded. The , petition does not.. aloso
though much. more descriptiyo;
and certain than !nest forms of Indictinent p pe,
tido') and libel; but proceeds to• sin:6o'y,- the
in
nutter nf t'rittululeet Votes rettelyed.' In
several di.yisiendescribleg niittauttill
num tiering in the aggregate several thatiallads;
and largelsMartt thuustinicieid to overthrow'
the majority for the person returned as
elected. Here is certainty not only to a com
mon but to a very speeffic intent. How can a
petition so specific faits charges and minnto
in IN specifications be deemed to be defective
in its frame? Strong bias only can entertain
st doubt of its sufficiency. ' •
I lie argument that the claim of the petition
to have vermin returns stricken out makes ih
defective or unsound is wholly unfounded. If
the facts set forth • are - aufficlent; - as we liatel
seen they clearly are, the prayer to Strike . out
does not vitiate the charge of an undue
eleetien and a false return:. That charge
remains, especially in 'Flew of the
concluding prayers of the petition,
I which are strictly correct, and carer the en
tire ground of the case. A prayer-to strike out
is no part of the charge in the complaint. The
court may disregard it if unfiLif too.broad, or
if unsupported by evidence, when , there aro
prayers suitable to the' CSINO, and covered by
the evidence; and we are bound to.believe
they did disregard it. Onmiaprmsunocutur le-.
gitime facta, douee probetur 'con
trorium. The court having exclusive',
and final jurisdiction, we have no
right to presume that it abused its poWers.'
The evidence, calculations and opinions of
the court, as we have seen, are not before us..
We cannot judicially know'wlmther the court
struck out divisions, or merely* found frauds
sufficient to change the result. We know. only,
the decree, and that is clearly right. The
whole argument upon the power to strike ent'i
pollsis 'outside of the record before us.
.And even if it were conceded. that the
prayer to strike but were a defect in itself, yet
the decree cannot be affected by it. The pre-'
sumption now is that if illegal the court.disre-
Tarded it. This is supported by authority.
itus in Hagen vs. Commonwealth, U Harris,
:3h5, this Court held, iipon an indicttnent of
eleven counts, where, after a motion to quash
was refiNed. a general verdict of guilty was
rendered on ten of the counts, and judgment
arrested on two, that the judgment on the
remaining eight would not be reversed, if
any count be sufficient, and the first being
found to be good. The same had been decided
in Cotiononwealth vs. Mclfisson, f S. & R.
4`20, and in Hartman vs. Commonwealth, 5
Ban. 63, Burnside and Bell, 97, said on argit
went " The law of :Pennsylvania is settled
that if one count be good; it is sufficient." •So,
also, as to several matters contained in the
same count.: For Cotteral vs. Cummins, 6S.
& R., 348, Justice Duncan. said: "It
is . the law that where several
matters arc laid in the same count, part of
which is not actionable, or not actionable in
the form laid, if there are sufficient facts laid
to support the action, it will be intended after
verdict that damages were given only for such
lts•Were properly The same is said in 1
Chitty on FL, 682,* and the reason given that
the,verdiet will be sustained by the Intendment
andfiresuniption that the judge drily direeted the
jury not to find damages in the defective alle
gations. The same intendment Was made fti
Weighy vs. Webb, 78, and 8.810, the court re
marking that it is not to be presumed thejudge
would direct or the jury . would have given the
verdict without sufficient evidence of the
. breach of contract. The defect was therefore
caused by the verdict. There are many analo
-201.18 cases. Stoever vs. Stoever, 9 S. & IL.;
454-5; Kerr vs. Sharp. 14 B.' & R., 399; Turn
pike Company vs.,ltutter,4 S. & It., 6; Sedorm.
vs. shatter, 5 W. & S., 529; Commonwealth vs.
Hunt, 2 :Harris, 510 ; Seetz & Co. vs. Butlimin.
& Co., Harris, 69. in this case the in
tendment should be even stronger, for the
court being the exclusive jtffige of the.facts as
well as the law, we 'cannot suppose the decree
was rendered on incompetent or insufficient
evidence.. "The courts make every reason
able presumption to rid themselves of objec
tions which do not touch the merits.'' Per
Rogers T.. Seitz & Co. vs—But - film & Co., supra.
Thus it is evident from this array of author
ity no presumption can be shown from the
decree that the court struck out divisions be
cause such a prayer is contained in the peti
tion. The decree itself furnishes no such evi
dence, while the prayer.s it illegal, we must'
, now presume, was disregarded upon the legal
intendment the cases all say should be made..
The argument, therefore, founded on
Abe decree following the allctiala et probata;is
holt sc. eitur . and illogical. The' protmta
are not before us, while elletiato are
not presumed to . be folloWed 'contrary
to law. But in addition to this gi!n eruk priuci
ple we have an authority in point. In Erving
vs.lSilby, 7 Wright, :;84,it was lieht that the p
erodings.eould not be reversed 1),, of con-
tiat.ietwy averments in tlu Specideations,
but the proper course would bare been to
Move the court below to strike out the con-
mullet tory pat t, awl the (TO iorari wits quashed.
1111!'re was no motion in the present cases to
strike out this .prayer as illegal. The only
motion was to gnash. Ulm U the whole record
in these cases we discover no error. and the
several decrees are therefore affirmed.
Chief Justiee Thompson, for" himself anti
.lustice Sharswond, read the dissenting
opinion, holding that the majority was wrong
wider the statutes prescribing the course to
be pursued in contested election eases. In a
voting population of 120,Ikat persons con
tested elections ought not to be encouraged,
and the Legislature ,did not intend to give
the wide scope taken by the Court below.
In regard to the exclusion of entire-di
visions, the Chief justiee held that no division
could be thrown out of the count unless it Was
shown that the entire pull was illegal, or it
was impossible to discriminate. No one will
pretend to say that in theSe divisions there
were no legal votes, and if there, were, then
exclusion was, not a decision upon "the
merits." He favored sending the contestants
back to show that they received a majority of
the legal votes polled.
In the case of the District Attorney ho held
that the Quarter Sessions had no right under,
the law to send it to an Examiner, but should
have heard the testimony. In the Prothono
tary's case he held that the act of Assembly re
(timing the Court "to hear and determine at
the next term," is obligatory upon the Court,
and not merely directory, for the office
is Weenstitutional one. This case was before
the Common Pleas for four terms, and might
have been there for four years, if the statute
is not to be regarded. flu also held that the
petitions were not sustained hy the oaths
required' and known to the law.
The Seheeppe Case.
Seheeppe vs. the Commonwealth. Error to
the, Over and Terminer of Carlisle. In. this
eaSe, which has attracted so much 'attention
throughout the country, Justice Read
vercd the Opinion of the Court; holding that
under the statutes the Supremo Coed' cannot
review the evidence nor can hare anything
to do with the guilt or innocence of the
prisoner, and therefore is compelled to af
firm the judgment of the court • below. !tlie
opinion is based upon technical Objections to
tho appeal from the 'ecirt below, anti at its
close uses this language:
The• hearing, therefore, before, us was
upon a writ of error at common law, upon
'which no error could be , assigne.d but those,
which Were apparent Millie face of the accord_
itself. We could, therefore, net legally or 'in
our, udicial canaeities, look at the evidence;
the bill Of exeeptionS and 'the charge of the'
t.lourt, much less tittle large miss of .pxtravie
bus Matter pressed upon our attention and no
tice.. !Weduive nothing to do.: with :the guilt,
or innocence Odle priapper; and all: we eau:
Sav us _that 'discoverno }utor the.
record." , , ,
11=11EME111
date Of THermometer This Hay at the
Bedlletio Odle°,
14 lc 11”..."3: 1 deg . 21.. 10 deg. 2P, ft deg
'Weather clowly Wind 14..uthenntl.
F. L MMSTON. Pal&
FOREIGN 1111011111e9POSMMCE
Lwrimn WHOA PARIS,
The Cane of Prince Pierre Eons 5...
Prelhandarten• to hie Trial..44orlosia
Charge Agaleot the Entperoe.—Dhlee.
,penrauee of Important rapers hross
_the Arehltrest. •
Morrespondarco of the INlndolohfaßioninli ilaitttn:
' .1.1:11(CE rtoarAPNPAT..'
PARII4, Friday, Jan. 28,18 . 74.--Four' readbrilt ,
have probably , been expecting, , ere' this,!. toe
hear wore of the affair at Antonil; and the
issue of the proceedings taken against din -
Prince Pierre liapoleon Itenapartee, Bet these
matters advance very slewlyin Fiume, and'.
as the deposithano taken by the examining.
ma.Ostrates are all cond2eted with elosect4
doors, and nothing respecting thou.'s , allowedl
to be published effidally,.ellweknowilS from,
the word-of-montlk and often exaggerated.
and one-aided statenients of the different par
' ties who are outmanned to" give evidence.
Moreover, thisilatter word is very loosely tueL
derstood in France, where:the-byes and ,urns-
prudenceon the subject are very defeetive
and illogical. Alnaoseevery sort, of gossip' or
hearsay, every, idle trnroped-up Story, every
thing • that everybody tales it into
his or , her head to think, ~ or
say, or sometimes, even., to &Mur
a. (forl,'l.,
have, heard such evidence,actually produced.'
in court in, &woe of murder), concerning titOt '
matter under ; investigation, is called ;for and'
listened to. Thus the, number, of witnesses ;
who have eitber, been summoned lay.. or pro., -
seined themselVes before the examining cote-. •
mission appointed by the High Court 'of Jus- •
tice, is already very great, and there is no say.-,
as yet, when or where the list may
end, for every day some now. individual' •
starts up who thinks be has sornethingto say.
or that he can throw some light on the subject.
In America the committal for trial- would,,
apprehend, in such .a case, have been a matter
very speedily decided, as only prima fade
evidence of botuicide in ene instance,., and
attempted homicide in another, ,would have
been required in the preliminary proceedimp„
and the further 'elucidation. of the sir f
cunistatacee .. .-- the . - crime would;
have been, left to conic eat
at the trial. Of course, there can be no doubt
that Prince Pierre Bonaparte shot at .an.d.
killed Victor Noir, and that he alsci shot at—,
without 'killing—Ulric de Fouvielle ; and theser
circumstances,onee proved or admitted,would
have sufficed for the committal lint- the '
French preliminary examinations go .much:,
further than . tins, and enter at once,
and minutely, into all the details ' or•
the transaction; and upon. the 'report ,
made on the facts so . elicited by the dit 7
amining magistrate is founded the uete;
d'accusation, translated, for Want of a better
word, by our legal term of "indictment,"
though ditfering essentially fromethe latter in.
spirit, inasmuch as instead of only "accusing",
the party on trial, it invariably assumes his' .
guilt. Acting on these principles,. the Coin
-
mission has already had under examination .
not far short of a hundred witnesses of one ;
kind or another, including, almost every
one who resided within sight '
hearing of the fatal reacontre ou,
the quiet little market-place of Auteuil,
The one great difficulty ,till retuai.us of: there
being only two surviving witnesses of the ,
affray, the Prince himself and do Fonvielle,:
both being deeply interested. parties, and'
both giving directly eontradictoty Versions of
facts. The Commission, amongst other'
expedients to which it has had re--
cot ire, has caused to be • e - 4.etited
eery precise plans of the Prince's apart:. •
mont. depicting both the ' furnlttfre ;,
aliel:niters in the terrible scene, and .also'.
tie 11101 - (1110 yak; of. the latter at, different nio 7 ,
imets. These have been: drawn.. up according
to the versions` respectively given by' the
acensed party and the other 'survivor ; and it
is saidahat the comparison of the two together;
has led to important results as to the appreeia--:
tion of the two stories "anti the degree of con
fidence .to be respectively accorded. to them.,
There is no day, however, yet. named even:
for the final_ committal; and none there ore,:
of course, ler the trial, which can scarcely: .
talke place before the middle or end of next=
month.
A SEl:lol.'s (111.11WF
I suppose it is by way of keeping alive the , -
public feeling against, those " Corsican bri—
gands," the Benapartes, as the lhoveillaiAs
vans them—until the above trial crimes on to,
revive it again—that AL do linratry,,aleading.;
member of the Left, has brought iin
eharge against the Emperor of, abstracting:
from the public archives :old, destroyi,ug;
certain official doctunonts relatimt to
his own acts or those of members or
his family. When, this- was first.
mentioned in the Chamber, the Minister. res.
I . I.IMCIi to entertain the qyestion unless 31. dta
Fier:dry brought forward precise and, definite. ;
allegations. This M t & Keratr,y proinised,toilo,
and yesterday he returned to the charge with,
so much force that the Minister was coat-,
pulled to take up the matter and promise a
minute inquiry into it. M. do I.C,eratry's. at:s
ensation is that many portions of the cor
respondence between INapoleou 1. mid,
his ministers have been thus
,abstrauted, as,
well as documents throwing light upon. too
Police of the first Empire. 1 may add:, also,
that it is whispered that all thopapets relatunp
t o tile murder of the Duo d'Enghien have tiles
appeared. What gives force to the above tio 7l
eusation is the fact that so high an authority,
and so able a writer as tho. Count d'aitussem l .
vine (married to the gramkiaughter (4. Z4zAilt
dt -,titao) ; has very recently u proveit
that,
,irt the great OP ei;tl vtiitrk .` l5llOl tl,
as the •• Correspondence of Napoleon
now in course of publication under thohomo, , -., ;
diatc supervision of the Emperor himself,
mos t serious frauds. and suppre.ssions.• have
taken place, which, quite yitiate- the historic.
accuracy of certain importaat epochs. Laitti.v.t
31. (le li,eratry distinctly avers ,that
lie qficial pi peq ycittAny t t llto ofLtp
Wow: have disappeared. last fact„.it .
mast be acknowledged., looks very sitspiejom,;
, esmcially, too, when we remember foe how
many yeats , past', the Emperor, has portion ! :
.
ciously maintained. it the control over the_ats .
aitti.itt. the at - mum/ow. position' of;
Nil4i!lF 4ArAttlY.in9 Arts, old Marshal
lant„eightv i yenrs of age, it old, ,sokliere .
I l 51
`:~ i; ita