author: Mr. Chief Justice Agnew

text:
    Lightner’s Appeal.
    1. H. being indebted to a bank in a sum much larger than the value of some stock of the bank he owned, was required to give additional security to keep his paper afloat. It was verbally agreed between the bank and H., that he should transfer his stock in the bank as collateral security for his indebtedness, and a power of attorney was accordingly drawn for that purpose in which H., for value received, irrevocably appointed E., the cashier of the bank, his attorney, to transfer to the bank or other persons his stock aforesaid. E. died before he had executed the power, and the stock still remained upon the books of the company in H.’s name, when H. became a bankrupt, and his assignee in bankruptcy filed a bill to prevent the bank disposing of the stock. Held, that the power did not fall by reason of the death of E., the attorney named therein.
    2. The power was not only irrevocable by its own terms, but it was so by the legal operation of the agreement which induced it. It was a power coupled with an interest, and the agreement operated as an assignment of the stock in equity which the power was intended to perfect.
    3. Where the effect of the contract, inter partes, is to give a right of property or interest in the subject-matter itself, of the agreement, to the party for whose benefit the execution of the power is intended, the power follows the estate or interest thus agreed to be transferred and becomes irrevocable by operation of law.
    June 9th 1876.
    Before Agnew, C. J., Mercur, Gordon, Paxson and Woodward, JJ. Sharswood and Williams, JJ., absent.
    Appeal from the decree of the Court of Common Pleas of Lancaster county, in equity: Of May Term 1876, No. 90.
    This was a bill in equity filed by Joel L. Lightner, assignee of the estate of Frank J. Herr, bankrupt, against the First National Bank of Strasburg, and Joseph McClure, president, and Rudolph F. Rauch, cashier.

      The bill set forth substantially, that on the 9th of June 1875, Frank J. Herr was adjudged a bankrupt, and on the 12th of August following, Joel L. Lightnerwas duly appointed assignee of his estate; that the said Herr at the time of the assignment was the owner of sixty-three shares of the capital stock of the First National Bank of Strasburg, and as such owner had drawn the dividends thereon to the time of the commencement of the proceedings in bankruptcy; that by these proceedings the title to this stock was vested in the assignee; that said bank claimed to hold said stock by virtue of an alleged transfer as collateral security for an indebtedness of said bankrupt to the bank, and in pursuance of said claim, the directors of said bank had directed the stock to be sold; that it is denied that said bank is entitled to said stock or that it has ever been transferred to the bank, or that it had any interest therein, and that it is the duty of said assignee to sell said stock for the benefit of the estate of the bankrupt, and he therefore prays the court to grant an injunction to restrain the bank from selling and transferring the stock and for an order to permit the assignee to transfer the same.
    The answer of defendants admitted the proceedings in bankruptcy and their regularity; that Frank J. Herr had been the owner of the stock and drawn the dividends thereon, but claimed that the bank had been the beneficial owner of said stock as security for the indebtedness of said Herr by virtue of an irrevocable power of attorney executed by said Herr to E. M. Eberman, cashier, in trust for said bank, and that this indebtedness, which far exceeded the value of the stock, was then due and unpaid. The answer also admitted that the board of directors of the bank had by resolution directed a sale of the stock.
    The power of attorney was as follows:—

      “ Know all men by these presents, that I, the undersigned, for value received, do hereby irrevocably constitute and appoint E. M. Eberman to be my true and lawful attorney, for me and in my name and behalf, to sell, assign and transfer unto the First National Bank of Strasburg, or any other person or persons, sixty-three shares of the capital stock of the First National Bank of Strasburg.
    And further, one or more persons under him to substitute with like power.
    In witness whereof, I have hereunto set my hand and seal, this first day of October 1873.
    Witnesses present: Frank J. Herr, [seal.]
    H. A. Mowery,
    G-eo. W. Hensel, Jr.”
    Before an examiner appointed to take testimony, it was admitted that the power of attorney was delivered to the bank, and had been in its custody ever since; that no transfer of the' stock had been made on the books of the company, and that it still remained in the name of Frank J. Herr; also that E. M. Eberman, the attorney named in the power, died early in December 1874-.
    There was also evidence that Herr was indebted to the. bank in an amount larger than the value of the stock, which indebtedness was incurred before the making of the power, and still remained unpaid. Further, that the bank had no claim on this stock, except by virtue of this power of attorney.
    The case was heard on bill, answer and depositions, in the court below, and after argument the court, without delivering an opinion, refused the injunction and dismissed the bill.
    The plaintiff appealed, and assigned this decree of the court for error.
    When the cause came on for hearing in the Supreme Court, in May, this court appointed Robert M. Agnew, Esq., master, to take further testimony and report; and his report, filed before the expiration of the May Term, was in effect as follows:—
    “ That, on the 1st of October 1873, Frank J. Herr was indebted to the First National Bank in a sum exceeding $10,000, still due and unpaid; that at that time he was a director of said bank; that his indebtedness was discussed at a meeting of the directors, and at their suggestion, to secure the bank, the power of attorney was executed by Herr to E. M. Eberman; that the special purpose or use intended by this power of attorney does not appear in its form, certainly is not definitely disclosed, but in the light of the testimony adduced, it is clear in the opinion of the master that it was given by Herr to Eberman in trust for the bank, to be executed by him in trust for its benefit as collateral security for the payment of Herr’s indebtedness to the bank, Herr himself testifying that he ‘ had no dealings with Eberman in any other relation than as cashier of the bank.’ ”
    The master further reported “that the power was never executed by Eberman, who died early in December 1874, and who deposited this power, with other valuable papers, in the vault of the bank, and neglected to execute the power, and that no transfer of the stock was made on the books of the bank, where it still remained in the name of Frank J. Herr.”
    No exceptions were taken to this report of the master by either party to the action.

      D. Gr. JSshleman, for appellant. —
    The allegations in the answer are not supported by the testimony, which shows there was no transfer of the stock on the books of the bank by virtue of the power ; that the power was not to Eberman in trust for the bank, but only a naked power to sell to the bank or any other persons, and that the bank had no other claim upon the stock than by, virtue of this power, which was revoked by the death of Eberman: Story on Agency, sect. 488. This power of attorney was not an equitable assignment of the stock to the bank: Notes to Ryall v. Rowles, 2 Leading Cases Equity 233, 1st ed.; Bispham’s Equity 77; Id. 174; Beans v. Bullitt, 7 P. F. Smith 221; Hunt v. Rousmanier, 8 Wheat. 174.

      Q-eorge M. Kline and W. XT. Ilensel, for appellees. —
    The power of attorney was an equitable assignment of the stock, notwithstanding the failure of the attorney to transfer in his lifetime. Where an assignment or pledge appears to have been intended, the intention will not be defeated by reason of the form of the instrument used, and any instrument is sufficient to make a valid assignment whenever the intention to part with the ownership and to vest an interest in the transferee are apparent: Bispham’s Equity 174; Nesmith v. Drum, 8 W. & S. 10; People v. Tioga, 19 Wend. 74; Hartley & Minor’s Appeal, 3 P. F. Smith 212. The power of attorney being coupled with an interest, was not revocable by the non-exercise of the power, or by the assignment of the donor: Hunt v. Rousmanier, 8 Wheat. 201; Blackstone v. Buttermore, 3 P. F. Smith 267; Bancroft v. Ashhurst et al., 2 Grant 513; Smyth v. Craig, 3 W. & S. 20.
   Mr. Chief Justice Agnew

delivered the opinion of the court, October 10th 1876.

Erom the report of the master it appears that Erank J. Herr, being indebted to the Eirst National Bank of Strasburg in a sum much larger than the value of his stock in the bank, was required to give additional security to keep his paper afloat. It was agreed between the bank and Herr that he should transfer sixty-three shares of stock in the bank as a collateral security for his indebtedness ; and Mr. Eberman, the cashier, was instructed by the bank to have a power of attorney drawn up and executed by Herr for this purpose. A power was drawn, in which Herr, for value received, irrevocably constituted and appointed Eberman his true and lawful attorney, for him and in his name and behalf, to sell, assign and transfer to the bank or any other person sixty-three shares of the stock of the bank, with power to appoint a substitute. Eberman, the attorney, having died, the question is whether the power given under these circumstances has fallen. We think it has not. It was not only by its own terms irrevocable for value received, but it was so by the legal operation of the agreement which induced it. It is a power coupled with an interest, and was made and executed for the very purpose of carrying the agreement into performance. When a power of attorney is thus adopted by the parties, as the means of carrying out their valid agreement made upon sufficient consideration, its operation must be sustained upon the nature and purpose of the contract to which it is ancillary and which it is intended to effectuate. If the effect of the contract, inter partes, is, as here, to give a right of property or interest in the subject-matter itself of the agreement, to the party for whose benefit the execution of the power is intended, the power follows the estate or interest thus agreed to be transferred, and becomes irrevocable by operation of law. A court of equity will not suffer the main purpose or intent to fall, even though a minor purpose may fail. Thus the power to transfer the stock will stand, though the minor purpose, that the transfer should be made by a particular person, fails by his death. The owner of the stock having, on a sufficient consideration, parted with his stock in equity, has no special interest that his power to carry out his sale should be executed by the person named in the power, who will not be his trustee of the proceeds, as he would be if the stock were not equitably transferred. Here the main intent was the security of the bank by means of the ownership of the stock, with the right to apply it to Herr’s indebtedness. The intent that this should be done through Eberman, who was the known agent of the bank, was but a minor one; and was really for the benefit of the bank. The act of transfer could be done as well by any other person, for the bank being the depository of the stock, is the only one who could object; and she, of course, would not object to a transfer to herself to carry out the agreement. The bank is clearly the party in interest. She was not bound to carry Herr’s debt longer than the tenor of the paper then running called for, and she stipulated for the security of the stock as the consideration of permitting Herr’s paper to keep afloat. Herr having agreed to this, his power was but the contract instrumentality to carry out the stipulation. The agreement operated as an assignment of the stock in equity, which the power was intended to perfect. We see no difficulty, therefore, in supporting the contract and power of attorney against the assignee in bankruptcy, there being no allegation of any fraud upon the bankrupt law being perpetrated. The assignee in bankruptcy rests his claim solely upon the supposed failure of the power by reason of the death of the attorney. But in such a ease actus Dei nemini faeit injuriam. The property being personal, the agreement meets no barrier in the Statute of Frauds by reason of its being by parol. There is nothing to prevent a court of equity from compelling specific performance, if it be refused.

This subject was very thoroughly examined and discussed by Chief Justice Marshall, in the case of Hunt v. Rousmanier, 8 Wheat. 174. We may add Hartley & Minor’s Appeal, 3 P. F. Smith 212; Blackstone v. Buttermore, Id. 266; Smyth v. Craig, 3 W. & S. 20; Bancroft v. Ashhurst, 2 Grant 513; Bank of Commerce’s Appeal, 23 P. F. Smith 59.

The decree, of the Common Pleas dismissing the bill is affirmed, and it is ordered that the appellant pay the costs.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Rolland and Johnston versus The Commonwealth.
    1. Where the jury-wheel was deposited in a vault in the county commissioners’ office, in a looked chest, in the custody of the county commissioners’ clerk, who was also the clerk of the jury commissioners, and the key was kept in a desk in the sheriffs office, to which his son, who was his deputy, had access and which was not always kept locked: Held, that this was a sufficient custody of the wheel in compliance with sect. 2 of the Act of 10th April 1867, and that the custody of the key was sufficient, although the evidence showed an improper want of care.
    2. In the absence of positive evidence that one of the jury commissioners did not seal the wheel as required by law, the presumption is that he performed his legal duty.
    3. It is no ground of challenging an array of jurors that the number of persons drawn was the minimum number, forty-eight, required by law, of whom only forty-five were summoned, two of the persons drawn being returned “ not found” and a third returned as “dead,” where the sheriff did not know at the time of drawing of the death or removal of those not summoned.
    4. It is not a right of a defendant to have forty-eight jurors in actual attendance, in the Oyer and Terminer.
    5. It is not a ground of challenge that the sheriff and jury commissioners did not destroy the slips containing the names of the jurors absent or dead, and draw others in their stead, where such absence or death was not known to them at the time of drawing.
    6. The names of jurors exempted from service at a previous term were not returned to the wheel by the sheriff and jury commissioners at the time the jury in question was drawn, as required by sect. 135 of Act of 14th April 1834. Held, not to be a ground of challenge.
    7. It is the duty of every officer to whom a writ is directed to make a return thereof; but a failure to do so, though irregular, is amendable even after a writ of error taken.
    8. It is no ground for quashing an indictment for burglary, that two of the grand jurors were stockholders of the bank upon whose premises the burglary was alleged to have been committed.
    9. A witness, who had given evidence tending to identify one of the defendants, was offered to prove that this defendant left a satchel at the witness’ shop for repairs, to be followed by evidence of the subsequent finding of this satchel filled with burglars’ tools. The counsel for the defendants at this stage claimed the right to cross-examine the witness as to his opportunities for knowing the defendant, which the court refused: Held, not to be error.
    10. Obtaining an entry into a dwelling-house by fraud or artifice, with intent to commit a felony, is “ constructive breaking.”
    11. The defendants, intending to gain an entry into a bank building to rob the bank, called in the evening at the cashier’s house, which was in the rear of the bank, and asked for the cashier, saying that they wished to transact some private business with him. The cashier was not then at home, and they went away. They called again twenty minutes later, and were then shown into the cashier’s office, without saying anything as to the pretended object of their visit. After a short interview with the cashier they assaulted him, and endeavored to carry off certain property of the bank. It seems that it should have been left to the jury to say whether the first call was made for the purpose of gaining an entrance by fraud with intent to commit a felony, and whether the second call was a part of the same transaction, in pursuance ; of such design, and from these facts, if s<Tioim3,Tb find a constructive break'ing,
    12. There is no such thing in Pennsylvania as burglary without abreakmg, either actual or constructive.

      13. Where the defendant entered a dwelling at night without breaking, but with felonious intent, the more unlatching or breaking of a door in an attemjrtj&-esgape does not make the offence burglary.

      it Sect. 135 of the Act'd 31st March 1860 defines the common-law offence of burglary, and the words “break or enter” should be read “break and enter.” In sect. 2 of the Act of 22d April 1863, the words “ with or” were not intended to apply to dwelling-houses.
    June 9th 1876.
    Before Agnew, C. J., Mercur, Gordon, Paxson and Woodward, JJ. Sharswood and Williams, JJ., absent.
    Error to the Oyer and Terminer of Franklin county: May Term 1876, No. 116.
    Indictment for burglary. The first count of the indictment was as follows:—
    “ That Ralph L. Rolland * * * and B. Johnston * * * on the 24th day of March in the year of our Lord 1876, about .the hour of nine o’clock of the night of the said day, with force and arms at the county aforesaid, and within the jurisdiction of this court, the dwelling-house of one George R. Messersmith, there situate, feloniously and burglariously did break and enter, with intent the goods and chattels, moneys and property of the National Bank of Chambersburg, in the said dwelling-house, then and there being, from the presence and lawful custody of the said George R. Messersmith, then and there, feloniously and burglariously, and by force and violence, to rob, steal, take and carry away, contrary to the form of the Act of Assembly in such ease made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”
    The second count charged an entering with intent to rob, steal and take away, &c. The third count, a breaking and entering with intent to steal, take and carry away; and the fourth count, an entering with intent to steal and' carry away, &c.
    The defendants, before pleading to the indictment, challenged the array of grand and petit jurors:—
    1. Because the jury-wheel had not remained in the custody of the jury commissioners as required by law.
    2. Because the sheriff and jury commissioners of Franklin county, at the time of the selecting and placing in the wheel the names of the jurors, did not secure the jury-wheel in the manner required by law, they having failed to secure the said wheel by sealing the same with their respective seals, the said wheel being sealed with only one seal, if any.
    3. Because the keys of the said jury-wheel had not at all times ■ been and remained uninterruptedly in the custody of the sheriff of the said county of Franklin.
    4. Because the number of persons drawn to serve as petit jurors at' that term of the Court of Oyer and Terminer was the minimum number, forty-eight, of which number only forty-five were actually summoned, two of the persons named in the venire being returned by the sheriff of the said county of Eranklin “ not found, and another of the persons named in the venire being returned by the said sheriff as “ dead.”
    5. Because the said sheriff and jury commissioners of the county of Franklin did not destroy the slips containing the names of the said absent or removed jurors, nor the slip containing the name of the said dead juror, and proceed to draw other names until the several panels were completed.
    6. Because the prothonotary of the Court of Common Pleas and the clerk of the Court of Quarter Sessions and the Oyer and Terminer did not, nor did either of them, certify to the sheriff and jury commissioners of the said county at the end of the February Term 1876, the names of the jurors who appeared and served at the February Term of said courts. Also the names of those who made default, or were excused from serving as jurors at that term, and also the names of those who were privileged or exempt from serving on juries.
    6Because the names of the persons selected, drawn, summoned and making default, also the names of the persons excused and exempted from serving as jurors at the February Term of the said Court of Common Pleas, Quarter Sessions and Oyer and Terminer, were not returned by the sheriff and jury commissioners to the wheel from which they were taken at the time of the drawing the names of the grand and petit jurors to serve and be summoned for the present term of the said courts, although such persons were resident within the said county of Franklin and competent and liable to perform the duties of a juror.
    7. Because it did not appear from the return to the precept that the jurors were legally drawn, how they were drawn or that they were in fact drawn at all, nor did it appear from the record that they were legally summoned.
    Evidence taken in support of the challenge.
    John Sweney testified: “ I am the sheriff of Franklin county; the jury-wheel has been in the vault of the commissioners’ office. The wheel after being sealed up was put into a chest, the chest locked. My office is not in the commissioners’ office; Mr. Etter lives four miles away; Mr. Gilbert fourteen miles away. They have nothing to do with the commissioners’ office. They draw the jury there. I was present the last time the chest was locked up. I locked it. The jury commissioners were present. I think Mr. Nelson, the clerk to the county commissioners, was also clerk to the jury commissioners. I lock the chest. I have the key. It is down in my desk at the jail — at my office at the jail. We keep some papers and books there; the key is in a small drawer. My son James has access to the desk. People often come into the office. Any one who has business with me comes into that room. The desk is not kept locked-all the time. The drawer where the key is is not kept locked. The key of chest and key of wheel are on a ring and kept together. Any one going into the room and to that desk could have access to those keys. I have not seen the keys since the wheel was locked when the last jury was drawn. They were so kept ever since I had anything to do with it. No certificate of persons drawn, summoned, selected and making default, or the names of persons excused or exempted from serving as jurors at February Term 1876, was furnished to me by either the prothonotary or clerk. No such list was furnished me for December Term 1875. Before drawing the jury, grand and petit, for this present term, the jury commissioners and I did not return to the wheel the names of the jurors selected, drawn, summoned, and who made default, or the names of persons excused or exempted from serving at February Term 1876. We did not do so prior to drawing the jury of December Term, or the February Term.”
    (Venire shown for the first week of this term in the Oyer and Terminer and Quarter Sessions.)
    “ This is the venire issued to me for summoning the jurors for this term. This is the only writ put into my hands for the drawing and summoning of jurors in the Oyer and Terminer. That panel contains forty-eight names. My return is ‘April 19th 1876, as commanded in the above writ, I have summoned and caused to be summoned the above named jurors. So answers John Sweney, sheriff.’ This is the only return to the venire.”
    Cross-examined: “ I have an ofiice in the jail. It is there I keep the keys in a desk. The desk has not usually been locked. I kept my books and papers in there. I have no reason to regard it as insecure. I have not looked for the keys lately. Mr. Nelson is clerk to the jury commissioners. I do not know that anybody else has been in the custody of the key of the wheel since it was locked — nor of the key to the chest — or has had it in possession. So far as I know, the jury-wheel in the chest has been all the time in the vault of the commissioners’ office. So far as I have knowledge, no one has had access to the desk except myself and my son, and my son is my deputy. At the time of drawing, I did not know that Huber and Lohr had removed from the county, nor that John McLaughlin was dead. These facts were discovered when we went to serve the summons, a considerable time"after the drawing was completed. I have no reason to believe that anybody has had access to this wheel since it was locked. I don’t know however. I have a seal. Mr. Etter also has a seal. My seal is on this wheel. These impressions are not with same seal. I know one of these is mine — the impression of my seal. Two seals were there I think — that is my impression. I impressed my seal on the corners of the paper.”
    Augustus Etter affirmed: “I am a jury commissioner. The jury-wheel has been kept in the office of the county commissioners, in the vault, on top of the cupboard. It has been in our possession at the filling of wheel and drawing, and the clerk of the county commissioners has always been the clerk to the jury commissioners. Mr. Nelson is at present clerk. He was sworn by the register and recorder as such clerk. I saw the oath administered. I don’t know whether the oath was reduced to writing or not. This was at the time of his appointment, before he discharged the duties of the office. The certificate of jurors selected, drawn, summoned, and who made default, and those excused or exempted from service at February Term last, was not furnished to us by the clerk or prothonotary, and of course we did not return such names to the wheel. I don’t know John Huber of S., nor Jacob Lohr, and I did not know till to-day that they were not residents of the county, nor did I know of the death of John McLaughlin. I affixed my seal on the wheel. The impression is that in the centre and one on corner below. I don’t know whether Gilbert put any seal on or not. He was in the habit of using his watch — the stem of his watch — for a seal. (Seals shown.) One is mine — one is the sheriff’s. Mr. Gilbert had a seal also. I don’t know whether Gilbert used his seal this last time or not.”
    Cross-examined: “Mr. Nelson’s place is the office of county commissioners. I meant it was not in our personal custody. We put it in .the vault of the county commissioners’ office for safe keeping, with their consent.”
    John A. Ilyssong, sworn: “I am prothonotary. After February Term last, I did hot furnish to the sheriff and jury commissioners the certificate of jurors summoned, and who made default- and were excused or exempted. I never did so.”
    W. Rush Gillan sworn: “I am clerk of Oyer and Terminer; entered in office first Monday of January. I did not, after the February Term last of court, furnish to sheriff and jury commissioners the names of jurors who were summoned and made default, or who were excused or exempted.”
    Defendants rested.
    The Commonwealth offers “ Jury Record.” Record Book of Jury Commissioners showing the drawing of the jurors for this term, with the following certificate:—
    “We, the undersigned jury commissioners and sheriff, do hereby certify that the foregoing panel of jurors were drawn by us according to law, at the county commissioners’ office in Chambersburg, Wednesday, March 22d, A. D. 1876.
    (Signed) G“T> }j„ry Cmminnonere.
    Attest:
    T. M. Nelson, Clerk.
    John Sweney, Sheriff.”

      To this the counsel for defendants objected, 1. Because it was irrelevant and immaterial. 2. It was not made a part of the venire, and did not purport to be a return to the writ of venire, and because the sheriff did not sign the record until within the last few minutes.
    (It Avas admitted that the sheriff did not sign this record until a few minutes before it Avas offered in evidence.)
    Objection overruled. Evidence admitted under an exception.
    The court below overruled the challenge to the array. The defendants then moved to quash the indictment, for the reason given above for challenging the array of jurors, and also for the additional reason that two members of the grand jury were directors and stockholders of the National Bank of Chambersburg, upon whose premises the alleged offence was committed. This motion was also overruled. The defendants then pleaded “Not guilty.”
    At the trial, the following facts appeared in evidence: At the time the alleged offence Avas committed, Mr. Messersmith was the cashier of the National Bank of Chambersburg, and lived in a dAvelling-house belonging to the bank and connected with the bank building. On the night of March 24th 1876, the defendants rang the door-bell of his residence, and inquired for Messersmith, Avith whom they said they had some private business to transact. The latter Avas not at home at that time, but returned home soon after. After his return the defendants called again and were shown into the cashier’s office. After a friendly conversation of about half an hour with Messersmith, they made a violent assault upon him; he struggled desperately for some time, and finally succeeded in giving an alarm. The defendants then left him and endeavored to escape, taking Avith them, hoAvever, a package belonging to the bank and containing $30,000. Holland was captured in the yard of the building, within a few minutes, and Johnston was captured the next day, in a neighboring toAvn.
    As to what occurred when the defendants obtained admission to Messersmith’s house, Leonard B. Kindline, a witness called by the Commonwealth, testified in part as follows:—
    “ I reside Avith my brother-in-law, Messersmith. I was in bank building of his dwelling on 24th March last. I answered a bell call that night. I was in the hall when the bell rang. I opened the front door and Holland and another were then outside. It Avas dark, after night. I did not know the other man. Holland asked whether Mr. Messersmith Avas in. I said he was not, that he had just walked out. He said he would like to see Messersmith, that he had a friend from New York who wanted to transact a little business with him. He introduced his friend as Mr. Johnston. Then I said it was a disagreeable evening. Holland said ‘I think we’ll have some sleighing yet. ’ He said ‘ Good evening! Perhaps will call later in the evening.’ He left. I was at my room about twenty minutes afterwards, and heard the bell ring again. I answered at the door. Same parties there. They asked if Mr. Messersmith was in. I said he was. They came in, and took off their hats and put them on the rack, and Johnston took off his overcoat and put it on the rack. They followed me through the hall and dining room into Messersmith’s office. I took them into Messersmith’s office, and he was sitting in front of register, with his back to the door. I said, ‘ Mr. Messersmith, several gentlemen want to see you.’ Messersmith had no collar or cravat on. Rolland said to him, ‘ Mr. M. we have taken you unawares.’ Mr. M. got up to receive them and I left, closing the door after me by pulling it to and latching it.”
    George R. Messersmith, after giving some evidence as to the locality of the occurrence and his previous acquaintance with Rolland, testified: “ On that night, March 24th, I was in my cashier’s office. About 8 o’clock my brother-in-law (Kindline) showed these men into my room. It was dark, and,'as I recollect, it was snowing. It was about an hour after dark. After they came in, Roíland introduced Johnston to me as the gentleman about whom he had been speaking to me on several occasions in reference to the purchasing of Abram Stouffer’s farm, adjoining mine. This was in the cashier’s room. We had a conversation of twenty or twenty-five minutes’ duration in reference to the value of the farm and the profits of farming generally. He requested me to give him the largest one of the two packages that he had left for safe-keeping. I said I could not give it to him that night, but that he could have it in the morning after seven o clock. He then asked me to take charge of a packet belonging to Johnston for safe-keeping, which I consented to do. (Package shown.) This is the package. He then again reverted to his desire to have his own package, and spoke of being hurried in the morning, and inquired if he did not gel to the bank in time to get it, I would send it to him to New York by express. I agreed to do it and took the address to where I was to send it. After I had written that, he said that he believed he would have me send both packages, and as I wrote to send both and underscored it, I was suddenly seized, one hand on my mouth, another at my throat.” After describing the struggle with the defendants, the witness proceeded: “At this time I was struggling, and they had their hands on me. The struggle continued till they left the room. I can’t tell how long it was. I suppose it was fifteen or twenty minutes. I was struggling all the time, except for a little while, when I was insensible. I had on this occasion, when these men came there, valuables in the cashier’s room. I had a packet of $30,000 in money. It was in my private drawer, in the cashier’s room. (Envelope shown.) This is the envelope in which the money was enclosed. This was in the room when these men came in. It was not there when these men escaped. I did not see either of them take it. I missed it as I staggered to my feet, and saw that my drawer was partly open, and the packet gone.” * * *
    John Ukkard testified that on the 24th March Holland had engaged him to meet him (Rolland) with a horse, saddled and bridled, and a package of clothing, at a place agreed upon between them, about nine o’clock in the night.
    Gr. S. Houser testified that on that same day Rolland had engaged a riding horse from him.
    After much testimony relative to the attempted escape of the defendants and the capture of Holland, John L. Black testified:—
    “I occupy a room with Miller Shillito, who is a gunsmith. Johnston looks like a man I saw. I can’t say positively. He resembles the man more than any other I have seen. My best judgment is that this is the man.”
    Counsel for the Commonwealth proposed to prove further by this witness that Johnston called at the witness’ shop to have the lock of a satchel repaired (the satchel being produced), to he followed by evidence of what its contents were when found on the night of the 24th, after the alleged offence was committed, and near the bank.
    Counsel for defendants claimed the right at this stage to cross-examine the witness as to his opportunities of knowing the man, and as to what constituted the basis of his opinion as to his identity, which was refused by the court, under exception. The counsel for the defendants then objected to further evidence until there was further and better proof of identification.
    Objection overruled, and the witness proceeded: “ Johnston is about the same size, about the same age, rather paler than he seems to be now. Did not notice his hair. He had a hat — slouch. I noticed a peculiar depression about the cheek bone, which peculiarity I observe in this man. There is a resemblance in the face. I see nothing else. He called there on two occasions. I see a difference between this man and the man I saw there. His mustache is heavier, larger, and nothing else. He has not a heavy mustache now, and as I recollect, if there was any hair on his face then, it was very little. He impresses me as being the man. I give that as my best judgment.”
    Counsel for Commonwealth proposed to follow this by proof that Johnston’s mustache was then lighter than it was at the trial.
    Counsel for defendants objected that the identification was not sufficient to allow the introduction of the proposed testimony, and objected to the introduction of any such evidence without further proof of identity.
    Objection overruled, and the evidence admitted under exception.

      Witness proceeded: “On Friday or Saturday afternoon of the week preceding the Friday when the attempt was made on the bank, the man called with a satchel to have the lock fixed, which he said was out of order. He asked to have it fixed. (Satchel shown.) This is the satchel. I identify it by some work that I put on it. I have no doubt at all about it. He called again and got it that evening or next day.”
    Cross-examined: “ I had never seen Johnston before that. He came after dinner. I am not sure, and think no one else was in the room. He was there but a short time. He is ruddier now than then, not paler. His mustache is same. He had a hat of the general appearance of this shown. I can’t say it was stiff or soft. He had his hat on all they time. I did not see the shape of his head. I do not swear positively that this is the man. I swear that he resembles the man more than any other that I have ever seen. My impression is that he had not a goatee on. He may have had. I can’t say I could have remembered it. I do not remember the color of his eyes. I can’t say with respect to his nose. I put in the rivets and centre-piece. I had to take the lock off. It is uncommon to put a centre-piece in. I can tell my own work.”
    Charles Ludwig was then called, and counsel for the Commonwealth offered to prove by him that the witness found the satchel under a wagon in an alley about seventy steps from the rear end of the bank lot, at about nine o’clock of the night of the 24th of the preceding March; to be followed by evidence of its contents.
    Objected to, because immaterial and irrelevant, and because there was no evidence or offer of evidence to connect its possession with the defendants. The evidence was admitted, under exception.
    John S. McHvaine testified that the satchel had been brought to the bank on the morning of the 25th March, and had been in the custody of the bank ever since. He proceeded: “On night of 24th March I saw two hats there (this shown) and a high-crowned silk. This at 10 o’clock. Saw none of these articles in the banking-room that night. I opened the vault that night and went into it. I closed it that day at close of banking hours.”
    Counsel for defendants then proposed to ask the witness whether the vault had. been opened between the time he opened it that night and the time he closed it that afternoon, in order to show whether he found it in the same condition when he opened as when he left.
    This was objected to as not proper on cross-examination. The objection was sustained under exception, on the ground that the evidence was part of the defendants’ case in chief.
    John Berry testified to having found some burglar’s tools, masks, &c., in an alley near Messersmith’s stable, very early on the 25th March. This was objected to, because the defendants were not shown to have been in possession of the articles, and because of the remoteness of the place at which they were found. The court admitted the evidence, under exception.
    The counsel for the defendants offered no evidence, and for that reason claimed the right to close the summing up to the jury, which the court refused, and granted the defendants an exception.
    Defendants’ points and the answers thereto :—
    1. Even if the jury believe all the evidence, the Commonwealth has failed to make out a case of burglary. The court refused this point, and charged, that the evidence, if believed, was enough to make out the offence of burglary, and further charged as follows:—
    “ It is felonious burglary by our statute, if any person shall, by night, wilfully and maliciously, enter into any dwelling-house, with an intent to rob and steal, or commit any felony whatever, whether the felonious intent be executed or not. The language of the statute is break or enter, not break and enter. So that an entrance, without a breaking, may be felonious burglary, according to the words of the statute.”
    2. If the jury believe from the evidence that the prisoners rang the door-bell at Mr. Messersmith’s dwelling, and the door was opened by Leonard B. Kindline, then an usual and habitual inmate of the house, and that he escorted them and showed them into the cashier’s room, where Mr. Messersmith was then sitting, and where the offence is alleged to have been committed against the property of the National Bank of Chambersburg, then alleged to be in his custody, these facts do not constitute such a breaking and entering as amount in law to the crime of burglary.
    Answer: “ This point is affirmed, and if there is no other evidence of a breaking, then the defendants cannot be convicted on the first and third counts in the indictments, which charge a breaking as well as an entering. For, although there is evidence to show that the defendants alleged business to be their object, when they first called and were met at the door by Mr. Kindline, yet that they were not then admitted, but were admitted twenty minutes or so afterwards, upon no pretence. So that there was no fraud in them, which the law could regard as equivalent to a breaking, in the manner in which they obtained admittance into the house.’
    3. There is no such evidence of fraud or trick practised by the prisoners to gain admission into the house, at the time they actually did enter it, even if all the testimony in the case is believed by the jury, as makes the entry of the prisoners a burglarious entry.
    Answer: “ This point is not affirmed. There is not such evidence of fraud or trick practised by the prisoners to gain admission into the house as will constitute a breaking, but the entry of the prisoners may have been a burglarious' entry, without breaking, as we'have already said.”

      4. Even if the jury should believe from the evidence, that after the alarm was made, and pursuit of the prisoners commenced, they retreated through the kitchen, unlatching the door and passing out, these facts do not amount in law to such a breaking and entering as will justify the jury in convicting the prisoners of burglary.
    The answer of the learned judge was: “ The fourth point is refused. I instruct you to the contrary, that if the prisoners retreated through the kitchen, unlatching the door and passing out, these facts do amount in law to a breaking.”
    6. If the jury believe from the evidence that the passing out of the house by the prisoners was as described in the fourth point, and this is the ground upon which the alleged offence is claimed to be burglary, the Commonwealth was bound to so state in the indictment, and having failed to do so, there can be no conviction on the present indictment.
    “ This point is refused. A breaking out of a dwelling-house by one who entered it by night with intent to commit a felony, is burglary at common law, and the Commonwealth were not bound to state a breaking out in the indictment, but a breaking only, and there may be a conviction on this indictment, as well on the first and third counts, which charge a breaking, as on the second and fourth, which do not, but charge an entry only, for I have said that entering without breaking is enough.”
    7. If the defendants are shown by the evidence to be guilty of any crime at all, it is the offence defined in the second section of the Act of April 1863, and not burglary, and there can be no conviction of that offence, there being no count in the indictment charging that offence.
    Answer: “ This point we refuse to affirm. The second section of the Act of April 1863 was intended to punish and provide for the breaking and entering of a dwelling-house by day-time, and of other buildings by night. Any other reading of this section makes it cover what was burglary at common law, which was not the legislative intention.”
    Verdict as to both defendants of “ guilty in manner and form as they, stand indicted.”
    After sentence passed the defendants took this writ of error and made the following assignments of error: That the learned judge erred (1) in overruling the challenge to the array of grand and petit jurors and in disallowing the reasons therefor ; (2) in overruling the motion to quash the indictment and in disallowing the reasons therefor; (3) in refusing to allow cross-examination of the witness, Black, and in admitting his testimony; (4) in admitting the evidence of Ludwig; (6) in' ruling out the question to the witness Mcllvaine as above set forth; (6) in admitting the evidence of Berry; (7) in admitting the “jury record” in evidence; (8) in refusing to allow the counsel for the defendants to close the case to the jury; (9 to 13 inclusive) in refusing to charge as requested in the defendants’ first five points respectively; and (14) in refusing to charge as requested in the defendants’ seventh point.

      J. McD. Sharpe (with him • Duncan $ McG-owan), for plaintiffs in error. —
    (1.) Error in disallowing the challenge to the jurors. The Act of 10th April 1867 requires that the' “jury wheel locked shall remain in the custody of the jury commissioners and the keys thereof in the custody of the sheriff of the county.” The jury commissioners had neither actual nor constructive custody of the jury wheel. They ought to have kept it under their exclusive control, even if not in their actual custody. The key of the wheel was accessible to strangers at all times. It is not necessary to show that the jury wheel has actually been interfered with (Brown v. Commonwealth, 23 P. F. Smith 322), it is enough to show, that the statutory requirements were not fulfilled. It did not appear that both of the commissioners sealed the wheel as required by law. The provisions of sect. 119 of the Act of 14th April 1834 were wholly disregarded.
    Foust v. Commonwealth, 9 Casey 338, relied upon by the court below, is not the same case; here only thirty-five jurors were summoned, and no effort was made to fill the panel as required by law. No certificate was made out of jurors who had served or of those excused, exempted,- &c., from duty, as required by sect. 128 of Act of 14th April 1834; nor were their names returned to the wheel as required by sect. 135.
    Further, sects. 118, 123 and 125, of the Act of 1834, supra, provide that the sheriff and commissioners shall draw the names, from the wheel and also that the sheriff shall summon the persons drawn. Here are two distinct and independent duties ; there ought therefore to have been two separate returns ; one that the jurors were lawfully drawn, and the other that they were lawfully summoned. In Eaton v. Commonwealth, 6 Binn. 447, where the record showed that the jurors were summoned, but did not show that they were drawn, judgment on a verdict of guilty was held bad.
    (2.) Error in refusing to quash the indictment. As to the fact that two of the grand jurors were stockholders of the bank, the defendants raised the objection as soon as they could; having in view a change of venue under the statute, they could not object to the grand juror without waiving their rights under that statute. They made the objection before pleading and arraignment and while the grand jury was still in session. In Doyle v. State of Ohio, 17 Ohio 222, and Huling v. Same, 17 Ohio St. 588, the objection was raised by a plea; State v. Rockafellow, 1 Halst. 340, in arrest bf judgment, was based upon a statute. Commonwealth v. Smith, 9 Mass. 109, was qualified in Hammett v. Bassett, 2 Pick. 563 ; Commonwealth v. Clark, 2 Browne 325; 1 Whart. Cr. L. 472.

      (3.) Error in admission of evidence. There was no evidence to connect either of the defendants with the satchel found by Ludwig or its contents, or with the tool found by Berry; such being the case, the finding of these articles near the bank was not material to the issue: Commonwealth v. Wilson, 2 Cush. 590; People v. Larned, 3 Seld. 445; Ruloff v. The People, 45 N. Y. 213 ; Hall v. People, 6 Parker 671; State v. Wisdom, 8 Porter 511; State v. Whittier, 8 Shep. 341; Kinchelow v. State, 5 Humph. 9 ; Williams v. State, 45 Ala. 57.
    (4.) Error in answers to points. The word “ or” (break or enter) in sect. 135 of the Act of 1860 must be construed “and;” otherwise sects. 135 and 136 define the same offence and provide different penalties for them. This is frequently done in construing statutes: Murray v. Keyes, 11 Casey 384; Bollin v. Shiner, 2 Jones 205; Dwar. on Stat. 772. An entry without breaking is a felony under sect. 136: Hollister v. Commonwealth, 10 P. F. Smith 105. The “breaking out” of a dwelling-house was not burglary at common law; the statute of 12 Anne, which made it so, has never been in force here: 4 Blacks. (Sharswood) *227; 2 Bish. Cr. L., sect. 105; 2 Whart. Cr. L., sect. 1546; Commonwealth v. Strupney, 105 Mass. 588; State v. McPherson, 2 Green Cr. L. R. 737; Foster v. Commonwealth, 8 W. & S. 77.
    (5.) Error in not allowing defendant’s counsel to sum up. 3 Whart. Cr. L., sect. 3011, shows that this is the practice.

      O. Q. Bowers, District Attorney (with him Kennedy §• Stewart), for defendant in error. —
    The law places a joint responsibility upon the sheriff and the commissioners. The evidence shows that both wheel and key were in proper custody. The defendants below did not show affirmatively that the wheel was not sealed according to law.
    It is not necessary that the whole forty-eight should be summoned: Rex v. Hunt, 4 B. & Ald. 430; Foust v. Commonwealth, 9 Casey 339 ; Sparks v. Plankinhorne, 4 Yeates 384. The absence or removal <3f any of the jurors was not known to the officers; it was therefore not possible for them to destroy the slips and draw other names. Again, the provisions of the law, which require the prothonotary to certify to the sheriff, &c., the names of jurors who have served, &c., and which require the sheriff, &c., to return to the wheel names of those excused, defaulting, &c., are only meant to secure a uniform distribution of jury duty, not to protect the accused: Friery v. People, 2 Keys 424; Ferris v. People, 35 New York 125.
    As to the return to the precept. The Act of 14th April 1834, provides for but one writ, and the return to it is to be made' only by the sheriff. The return in this case was erroneous, but it is amendable: Dewar v. Spence, 2 Whart. 221. Stainer v. James, Cro. Eliz. 311, shows the distinction between an insufficient return which is amendable and an album breve. See also Commonwealth v. Smith, 2 S. & R. 303; Commonwealth v. Chauncey, 2 Ashm. 99.
    The grand jurors who were stockholders of the bank were not disqualified; the offence was against the real estate, not against the bank: Treasurer of Middleton v. Ames, 7 Verm. 166. The defendants could only have taken advantage of this before bill found: Commonwealth v. Smith, 9 Mass. 107. They knew of the supposed disqualification before they were indicted: Hubert v. Shaw, 11 Mod. 111.
    By excluding the words “ dwelling-house” from the purview of the word “ same” in the second clause of sect. 136 of the Act of 1860 (amended by the Act of 1863), sects. 135 and 136 can be harmonized. Then sect. 136 provides against entering a dwelling-house in the day time with or without breaking, with intent, &c., and the entering other buildings either by day or night with or without breaking, with intent, &c., and imposes a lighter penalty upon these offences. This section also shows that the legislative mind made no distinction between entering by breaking and without breaking. Even if “ or” is construed “ and” in sect. 135, yet two of the counts charge breaking and entering and the jury found a verdict on all of the counts.
    The question of summing up to the jury is one of practice, not of right: Whart. Cr. L., sect. 3011, note r. Even if the court below was in error, this would not warrant a new trial, in cases of clear guilt: Hunt v. State, 49 Ga. 255 ; s. c. 2 Gr. Cr. R. 587; People v. Fenwick, 45 Cal. 287; S. c. 2 Gr. Cr. R. 218.
   Mr. Justice Paxson

delivered the opinion of the court, October 23d 1876.

This cause was contested step by step in the court below, and pressed with marked zeal and ability here. The Commonwealth was met at the threshold of its case with a motion to quash the array of grand and petit jurors, and also to quash the indictment. Both motions were overruled, and this action of the court below forms the subject of the first and second specifications of error. We will consider briefly the reasons assigned in support of these motions respectively. It was urged that there was irregularity in regard to the custody of the jury-wheel, the sealing of the same, and in the manner in which the keys were kept. It appears from the evidence taken in support of the challenge to the array, that the wheel was deposited by the jury commissioners in the vault of the county commissioners’ office, after being first placed in a chest, and the chest locked. The clerk of the county commissioners was also the clerk of the jury commissioners, and was duly sworn. It was therefore in the actual charge of their own sworn officer. After the drawing of the jurors for the February Term, the sheriff and one at least of the jury commissioners sealed the wheel. The other jury commissioner was not sworn. The sheriff says: “I have a seal. Mr. Etter has also a seal. My seal is on this wheel. These impressions are not with the same seal. Two seals were there, I think — that is my impression.” It also appeared that the sheriff kept the key of the wheel in his desk at his office, to which his son, who is also his deputy, had access. The desk was not kept locked all the time. The second section of the Act of 10th April 1867, Pamph. L. 62, provides, that “ the said jury-wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof in the custody of the sheriff of said county.” We must give this section a reasonable interpretation. It does not designate where the wheel shall be kept, and provides no place in which the jury commissioners may deposit it. It was not intended that they should carry it to their private residences. In many instances they reside several miles from the county seat. Its removal from the seat of justice would be as inconvenient as unnecessary. It is difficult to see what better disposition these commissioners could have made of the wheel than to deposit it in a vault attached to one of the public offices, where it was under the immediate charge of their own sworn officer. It was clearly in their custody within the meaning of the law. The objection that the wheel was not properly sealed is not made out by the proof. The onus was upon the party making the challenge, and it has not been sustained. In Brown v. Commonwealth, 23 P. F. Smith 322, there was proof that the wheel was not sealed as required by law. Here there was positive proof that the sheriff and one commissioner did seal, and no proof that the other did not. It was the duty of the plaintiffs in error to have called the other commissioner. That he also sealed is probable from the testimony of the sheriff. In the absence of any negative proof the presumption is that his duty in this respect was properly performed. The sheriff had the custody of the key. In that the law was complied with. We think, however, that it was carelessly kept. Officers charged with such delicate duties cannot be too exact in the performance of them. A prudent regard for the public interest requires that the key of the jury-wheel should be kept where it is not accessible to any one but the person charged with its custody.

We do not see much force in the further objection that the minimum number of an Oyer and Terminer panel, viz.: forty-eight, were not in point of fact summoned. One of the names drawn from the wheel was returned by the sheriff “not found,” and one as “ dead.” This of course reduced the panel to that extent. Sect. 113 of the Act of 14th of April 1834, Pamph. L. 39, requiring forty-eight jurors to be summoned and returned as petit jurors in the Oyer and Terminer, must be read in connection with sects. 118,119 and 125 of said act. Sect. 113 refers to the venire, and the manifest meaning of it is that the venire shall require that at least forty-eight jurors shall be drawn. Sect. 118 provides that so many persons shall be drawn as- shall be required by the writ of venire. By sect. 119 the slips containing the names of persons removed or dead are to be destroyed and other names to be drawn in their stead until the panels are complete. This of course means where the death or removal of the persons whose names are drawn was known to the sheriff and commissioners at the time of the drawing. The 125th sect, provides that the sheriff shall summon at least ten days before the return day of the venire the persons whose attendance shall be thereby required. Taken together we do not think that these provisions of the Act of 1834 require more than that forty-eight names shall be drawn from the wheel, and that in the absence of any knowledge at the time that any of the persons whose names are so drawn are dead or removed, the sheriff shall summon so many thereof as can be found within the county. This we believe has been the practice generally throughout the state, and is entirely consistent with Foust v. Commonwealth, 9 Casey 338. In that case forty-eight persons were summoned, but one of them was disqualified by reason of not residing within the county and being an alien. He was therefore not a juror and of no more service than the persons returned by the sheriff in this case as “not found” and “dead.” It is not a right of a defendant to have forty-eight jurors in actual attendance in the .Oyer and Terminer. If all are summoned and attend, the court may excuse some of them, and this cannot be assigned for error: Jewell v. Commonwealth, 10 Harris 94. Nor can a defendant be prejudiced thereby. It does not impair his right of challenge. He has a right to his peremptory challenges and as many more as he can show cause for, while special venires are provided by law in case the panel should be exhausted. It was clearly no ground of challenge that the sheriff and jury commissioners did not destroy the slips containing the names of the jurors absent or deceased, and draw others in their stead. It does not appear that such death or absence was known to either the sheriff or jury commissioners when the names were drawn. There was therefore no omission of duty on their part. Nor do we see any force in the further objection that the names of persons exempted at the February Term from serving as jurors were not returned to the wheel at the time the present panel was drawn. The 135th sect, of the Act of 14th April 1834, Pamph. L. 364, provides that “ the name of every person selected, drawn, summoned and making default as aforesaid; also the name of every person who shall be excused from serving, shall be returned by the sheriff and commissioners to the wheel from which it was taken at the time of the next drawing from the said wheel for any of the courts of such county,” &c. This duty was neglected. The names were not returned to the wheel as they should have been. But we are unable to see how the defendants ifere injured by this omission. It is a matter of which they have no right to complain. This section. of the Act of 1834 was intended to secure equality in the performance of jury duty, and was not for the purpose of keeping the names in the jury wheel for the benefit of defendants. They have no such right. Otherwise a person who should be tried at the commencement of the year would possess superior advantages over those tried at its close when the wheel is comparatively empty. It was urged, however, that the array should be quashed because “ it does not appear from the return to the precept that the jurors were legally drawn, how they were drawn or that they were in fact drawn at all. Nor does it appear from the record that they were legally summoned.” I have examined the record with some care, and it discloses no return to the venire by the jury commissioners. This is certainly an irregularity. It should appear from the record that the names of the panel were drawn from the wheel in the manner required by law. This can only appear by the return of the sheriff and jury commissioners. It is true the Act of Assembly 'does not require the jury commissioners to return the venire. But this is a common-law duty, and needs no legislative command. It is the duty of every officer to whom a writ is directed to make return of the manner of its execution, and such return is the appropriate evidence of that fact. This omission could and ought to have been supplied in the court below as soon as its attention had been called to it by an order upon the jury commissioners to return the venire. It was but an amendment of the record, and a record may be amended even after writ of error or certiorari lodged in the office: In re Election of Sheppard, 27 P. F. Smith 297. Serious as this irregularity is we would hesitate to reverse upon this ground, especially in view of the Act of 21st of February 1814, 6 Sm. Laws 11, Br. Purd. 388, pi. 56, and the construction which said act received in Dyott v. Commonwealth, 5 Whart. 67. The error is more formal than substantial, and the court below appears to have had such evidence before it as satisfied its conscience that the law had been complied with in all important particulars. Yet as this judgment must be reversed for other reasons it is proper to call attention to what we regard as a loose and careless practice.

What has been said applies as well to the motion to quash the indictment as to the • challenge to the array. In support of the former motion, there was, however, the additional reason that two of the grand jurors were stockholders in the National Bank of Chambersburg. This was no ground to quash the indictment. It might have been a ground of challenge as to the particular jurors. It is well settled that a grand juror may be challenged for cause. This is the current of the English authorities. It was allowed in this country in the trial of Col. Burr, and in this state in an Oyer and Terminer case tried before Tilghman, C. J., and Breokin-RiDfiE, J., in 1814, 2 Browne 323.

We see no merit in the third specification. The witness, John L. Black, had sufficiently identified the defendant Johnston to permit his statement in regard to the satchel to go to the jury and it was not competent for the defendants’ counsel to interrupt the examination in chief at this point in order to inquire into the opportunities of the witness of knowing Johnston.. Such cross-examination was competent, but not at that particular time. The fourth, fifth and sixth specifications are also without merit and need not be discussed. The admission of the “jury record,” referred to in the seventh specification, was of doubtful propriety, as it was not sworn to, and does not appear to have been kept in pursuance of any Act of Assembly. The offer was to the court, not to the jury, and is unimportant. The eighth specification is wholly unsustained. The order in which counsel shall sum up is in the discretion of the court below, and is not assignable for error. The learned judge was right in declining to affirm the defendants’ first point, referred to in the ninth specification. The evidence for the Commonwealth, if believed by the jury, was sufficient to make out the offence of burglary, either at common law or under the statute.

There was error in the answer to the defendants’ second point, embraced in the tenth specification, but it was in their favor. They have, therefore, no cause of complaint. We might well stop here, but as this case must go back for another trial, we deem it our duty to indicate the principles upon which this branch of it should be ruled. It is established by numerous authorities that there may be a constructive breaking. This may be done by an act in fraudem legis, or by fraud not carried on under cloak of legal process. Accordingly it has been held, that where thieves came to a house in the night-time, with intent to commit a robbery, and knocking at ‘ the door, pretending to have business with the owner, and being by such means let in, robbed him, they were guilty of burglary: Le Molt’s Case, Kel. 42; 2 Hawk. P. C. 131; 1 Russell on Crimes 793; 1 Hale P. C. 552; 2 Arch. Cr. Law 279. The evidence for the Commonwealth upon this point was that the defendants (plaintiffs in error) came to-the door of Mr. Messersmith’s house, after dark, on the evening of the 24th of March last. The witness Kindline says: “ I opened the door, and Rolland and another man were outside. * * * I did not know the other man. Rolland asked whether Mr. Messersmith was in. I said he was not, that he had just walked out. . He said he would like to see Messersmith; that he had a friend from New York who wanted to transact a little business with him. He introduced his friend as Mr. Johnston. * * * He said ‘ Good evening. Perhaps we will call later in the evening.’ ” They did call about twenty minutes afterwards, rang the bell and were admitted by Mr. Kindline. Messersmith had returned, and they were shown into his room. Rolland introduced Johnston as the man of whom he had previously been speaking to Messersmith in regard to the purchase of a farm. Some other conversation occurred in reference to matters of alleged business, when Mr. Messersmith was suddenly seized and the robbery attempted. There was evidence here to go to the jury of a constructive breaking; of a trick and a fraud by means of which the defendants had obtained admission to the house. The learned judge of the court below evidently regarded the first attempt to enter as a trick, but held that inasmuch as they did not obtain admission then, but went away and returned in the course of twenty minutes, and were admitted without any further reference to their pretended business, such entry was not a constructive breaking. This was error. It was for the jury to say whether upon all the evidence they believed the first call at Mr. Messersmith’s house was for the purpose of gaining admission by fraud and artifice, with intent to commit a felony therein ; and whether the second call, when they actually obtained admission, was a part of the same transaction in pursuance of such previously formed design.

The learned judge was right in refusing to affirm the prisoners’ third point. But it was error, as has already been stated, to say that there “ is not such evidence of fraud or trick practised by the the prisoners to gain admission into the house as will constitute a breaking.” It was also error to say, in the same sentence, that • the entry of the prisoners may have been a burglarious entry without breaking.” There is no such thing as burglary in Pennsylvania without a breaking, either actual or constructive. We shall refer to this more fully when we come'to the last assignment of error.

^ The answer to the fourth point was error. The mere unlatching 4 or breaking of a door in an attempt to escape is not burglary in this Instate. We do not think it was ever so at common law. It is true ] it was at one time asserted to be so by Lord Bacon and other eminent English lawyers, but it was denied by authority of equal weight; notably by Sir Mathew Hale, by Lord Holt and by Trevor, C. J., in Clark’s Case, 2 East P. C. Ch. 15; in 1 Hale 554, where it is said: “ If a man enter in the night-time by the doors open, with the intent to steal, and is pursued, whereby he opens another door to make his escape, this, I think, is not burglary, for fregit et exivit non fregit et intravit.” And see Black. Com., vol. 4, p. 223. This difference of opinion ’among eminent jurists in England led to the passage of the Statute of 12 Anne, which, after referring to the doubt on the subject, provides, that a breaking out of a dwelling-house by a burglar in the night-time, in an attempt to escape, was a sufficient breaking to sustain a conviction. This statute was subsequently repealed by the statute of 7 & 8 Geo. 4, ch. 27, and reenacted by 7 & 8. Geo. 4, ch. 29. The passage of the Act of 12 Anne is strong evidence that it was not the common law. No such | statute was ever enacted in Pennsylvania, and I am not aware of ! any decision recognising such a rule here. In the fifth report of the English commissioners on criminal law, we find the following remarks on burglary, which are so forcible, and bear so directly upon this point, as to justify their admission here: “By the statute of 12 Anne, ch. 1, § 7 (subsequently repealed and re-enacted), the crime of burglary was extended to the case of an offender who, having committed a felony in a dwelling-house, or having entered therein with intent to commit a felony, afterwards broke out of such dwelling-house in the night-time. This extension does not, we think, rest upon just principles. After a felony has been committed within the dwelling-house, the offence is not in reality aggravated by lifting the latch of a door, or the sash of a window, in the night-time, in order to enable the offender to escape. A breaking-out, indeed, may be an innocent act, as it may be committed by one desirous of retiring from the further prosecution of a crime, and the extension of the law of burglary to such a case is not warranted by the principles upon which the law is founded, inasmuch as a circumstance not essential to the guilt of the offender, or the mischief of the act is made deeply essential to the crime. It is ineffectual, even with a view to the object proposed; the pretext for the conviction fails in the absence of a breaking out, which is a casual , and uncertain circumstance.”

The thirteenth and fourteenth specifications raise a question that ' is not free from difficulty. It was not error to refuse to affirm the defendant’s seventh point for the reason that two of the counts of the indictment charge the offence of burglary at common law, to wit: the breaking and entering a dwelling-house in the night-time with the intent to commit a felony. But the case requires from us a construction of the 135th section of the Act of 31st March 1860, Pamph. L. 415, and of the second section of the Act of 22d April 1863, Pamph. L. 531. The first-named act provides that “if any person shall by night wilfully and maliciously break or enter into any dwelling-house * * * with an intent to commit any felony whatever, whether the felonious intent be executed or not, the person so offending shall, on conviction, be deemed guilty of felonious burglary,” &c. It will be seen that, by the terms of the act, an entry without breaking, in the night-time, constitutes felonious burglary. Then came the Act of 1863, before mentioned, which provides that, “ if any person shall in the day-time break and enter any dwelling-house, * * * or wilfully and maliciously, either by day or by night, with or without breaking, enter the same with intent to commit any felony therein, the person so offending shall be guilty of felony,” &c. I have given so much of each act as relates to dwelling-houses. The learned judge of the court below held that the Act of 1863 was “ intended to punish and provide for the breaking and entering a dwelling-house by day-time, and of other buildings by day or by night. Any other reading of this section makes it cover what was burglary at common law, which was not the legislative intention.” The Act of 1863 is an\ exact rescript of the 136th section of the Act of 31st of March 1860, with the exception that the words “ with or” are interpolated so as to make it read “ wilfully and maliciously, either by day or by night, with or without breaking, enter the same,” &c. That the 136th section of the Act of 1860 was intended to apply to cases where the breaking takes place in the day-time, or there is an entry by day or night without breaking, with intent to commit a felony, is manifest. This was the view taken of it by this court in Hollister v. Commonwealth, 10 P. F. Smith 105. But the Act of 1863 supplied the aforesaid section of the Act of 1860, and extends to an entry by night, with or without breaking. Then as to the 135th section of the Act of 1860. By its terms it makes an entry at night, with or without breaking, felonious burglary. If we construe this act literally, it is supplied by the Act of 1863, and the crime of felonious burglary no longer exists by statute in this state. The offence is reduced to the grade of an ordinary felony, punishable by four years’ imprisonment. For it is impossible for two statutes defining exactly the same offence, the one punishing it as felonious burglary, and the other as a simple felony, to stand together. Under which statute shall a prisoner be sentenced ? How shall he be tried ? In the Quarter Sessions, or the Oyer and Terminer ? These are matters that must not be left to conjecture, to be guessed at upon the trial, or decided upon the caprice of the judge. It is therefore our duty to put such a construction upon these statutes as will most effectually carry out the legislative intent, and produce a consistent and harmonious system. In view of all this legislation, we have no doubt it was the intention of the legislature, by the 135th section of the Act of 1860, to define and punish the common-law offence of burglary, and that the word “ or” in said act, “ break or enter,” was introduced by mistake or inadvertence; for the sueceeding section (136) of said act proceeded to punish the offence of entering a dwelling-house in the night-time without breaking. It is made a lighter offence, a simple felony, punishable by four years’ imprisonment. To read the 135th section, therefore, to break or enter, is inconsistent with the 136th section. We are therefore led to the conclusion that the word “or” in the 135th section should be read “and,” which would make the offence that of burglary at common law. Such a mode of construing a statute is not without precedent. It was done by this court in Murray v. Keyes, 11 Casey 334; Bollin v. Shiner, 2 Jones 205; Foster v. Com., 8 W. & S. 77. It is said in Dwarris on Statutes 772, that “ ‘ and’ is not always to be taken conjunctively. It is sometimes, in the fair and rational construction of a statute, to be read as if it were ‘or,’ and taken disjunctively and distributively.” Giving to the 135th section of the Act of 1860 the construction we have indicated, it harmonizes perfectly with the 136th section of the same act so far as relates to dwelling-houses; the former punishing as felonious burglary the common-law offence of breaking and entering a dwelling-house in the night-time with intent to commit a-felony, and the other punishing a lesser offence, partaking of the nature of burglary, viz., when the breaking takes place -in the day-time, or there is an entry by day or by night without breaking. Then we have the Act of 22d of April 1863, the 2d section of which interpolates the words “with or” into the 136th section of the Act of 1860, yet in all other respects leaves the latter act intact. What was the legislative intent in the Act of 1863 ? Was it intended that the words “with or” should apply to dwelling-houses? The whole subject was completely covered by the legislation contained in the 136th and 136th sections of the previous Act of 1860. They provide for, 1st, breaking and entering by night; 2d, breaking and entering by day; and 3d, entering by day or by night without breaking. There was therefore no reason why the words “ with or” should be applied to. dwelling-houses, but on the contrary ample reasons why they should not. It will be observed that' the 136th section, with the single exception of dwelling-houses, relates to a class of buildings entirely different from those embraced in the 136th section. As to such buildings it is not difficult to see why the legislature enlarged the offence by the Act of 1863 so as to make it the entering, either by day or by night, with or without breaking.

We are of opinion that as to the 136th section, the word “or,” must be read “and,” and that the words “with or ” in the second section of the Act of 22d April 1863, were not intended to apply to dwelling-houses. This construction makes the legislation referred, to a consistent and harmonious whole.

We are not surprised, in view of the wording of the 135th section of the Act of 1860, that the learned judge of the court below instructed the jury in answer to the defendant’s fifth point, that there could be a conviction under the counts which charged an entry without breaking. But under the construction which we have placed upon said section, it was error.

The judgment is reversed and set aside, and the record remitted to the Oyer and Terminer for another trial. And it is further ordered that the inspectors and warden of the Eastern Penitentiary, at the city of Philadelphia, surrender the bodies of Ralph L. Rolland and B. Johnston, the plaintiffs in error, to the high sheriff of. Franklin county for custody and trial in due course of law.


author: Mr. Justice Woodward

text:
    Bricker’s Administrators versus Dull.
    1. Where under rules of court the plaintiff was notified by defendants that he was required to file, within twenty days, a statement of the demand he".' intended to make on the trial, and he failed to comply, and twelve years after-wards having obtained leave to amend his declaration, he filed special counts and offered evidence of his demand, the court rejected the evidence on the ground that plaintiff could not supply the want of notice of what he intended to prove on the trial by special counts twelve years after the special matter was demanded, and directed the jury to find for defendants. Held, not to be error.
    2. A delay of twelve years, in applying for leave to amend a declaration, is out of all reason and fatal to the success of the efforts of the plaintiff to cure a defect arising from his original neglect.
    June 9th 1876.
    Before Agnew, C. J., Mercur, Gordon, Pas-son and Woodward, JJ. Sharswood and Williams, JJ., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1876, No. 113.
    This was an action of assumpsit, brought by Elizabeth A. and William H. Bricker, administrators of James Bricker, deceased, against James J. Dull, impleaded with Thomas Collins, doing busi- ' ness as Collins, Dull & Co., to recover the price of goods and supplies alleged to have been furnished by James Bricker to the subcontractors of defendants, who had a contract to build the road of the Bedford Railroad Company.
    Plaintiffs alleged that Collins, Dull & Co. agreed to pay for said goods and supplies out of the moneys coming to them from the railroad company, on the estimates of the sub-contractors, as soon as the same should be received by them and be due, and to which agreement the sub-contractors had assented. _
    The action was originally brought by James Bricker, who was then living, in August 1861.
    A general declaration was filed on the 9th of October 1863, and . on the 24th of October 1863 the defendant, Dull, appeared and pleaded non-assumpsit, payment with leave, &c.
    On the 2d of January 1864 notices in writing were served on the counsel of plaintiffs, by defendant, requiring them, within twenty days thereafter, to exhibit the paper or papers upon which plaintiffs’ action was founded and to file in the case a written statement of the account or demand it was proposed to give in evidence and rely on at the trial in accordance with the following rules of court:—
    Rule 67. “ Either party to an action may require in writing of the other party an exhibition of any paper or papers upon which the action is founded, or which is relied on as a defence, and to have copies thereof, if necessary, made at his own expense, within twenty days after such requisition, and upon the refusal of either party to make such exhibition or permit such copies to be made, the same shall not be given in evidence on the trial.”

      Buie 68th. .“ If the plaintiff’s action be a general assumpsit, not founded on a writing, he shall upon a reasonable request before the defendant be compelled to plead, or where a plea has been entered, within twenty days after such request, file together with his declaration, a written statement of the account or demand that he purposes to give in evidence and rely on at the trial, and on failure so to do, no evidence thereof shall be received.”
    No action was taken by the plaintiffs in response to these notices and no. further steps had in the cause until the 28th of January 1873, when upon the suggestion of the death of plaintiff his administrators were substituted, and on the 28th of May following the case was ordered for trial.
    On the trial the plaintiffs offered evidence containing two items of the plaintiff’s demand, to which the defendant objected on the ground that he had not been furnished with copies of papers or statement of plaintiff’s demand, as required by the notices served upon plaintiff’s counsel, under the 67th and 68th rules, which evidence having been admitted by the court, and the verdict being for the plaintiff, this admission was assigned for error, and the case was brought before this court where the judgment of the lower court was reversed. (See Dull v. Bricker, 26 P. F. Smith 255.)
    The new plaintiffs afterwards moved for leave to amend thé declaration by filing counts specially setting forth the nature of plaintiff’s claim, and accompanied by copies of certain written orders drawn by various persons in favor of Bricker, and accepted either in writing or by parol by defendant.
    On the 23d of May 1876, the court permitted the declaration to be amended by filing the new counts, but gave notice that on the trial they should exclude all evidence to support these counts for want of notice of the special matter as required by the rules of court and notice served in 1864.
    Upon the second trial before Pearson, P. J., the plaintiffs offered several of these orders in evidence, claiming that under the new declaration filed by leave of the court, these papers were evidence being specially declared on, and that rule 68th did not apply where there were special counts setting out the papers and furnishing a copy thereof.
    The court rejected the evidence fop want of notice of the claim intended to be presented and made on the trial, and said that this want of notice could not be supplied by a special narr. filed nearly twelve years after notice of the special matter was demanded, and directed the jury to find a verdict for the defendants.
    ■ Plaintiffs excepted and exceptions being sealed they took this writ, assigning for error the action of the court.

      J. W. Simonton, for plaintiffs in error. —
    To construe rule 68th as the court below would do is to give it the force and effect of a decree of strict foreclosure against any plaintiff who fails to file the “ written statement” within twenty days after request, and this in the face of the Act of 1806, which gives until and on the trial to complete the pleadings. The rule as thus construed and applied and the Act of Assembly cannot stand together. The Act of 1836, Bright. Purd. 233, pi. 136, which enacts that ’ the Common Pleas may make rules provides “ that such rules shall not be inconsistent with the constitution and laws of this Commonwealth.” The power to make rules is certainly limited by this proviso: Barry v. Randolph, 3 Binn. 279; Boas v. Nagle, 3 S. & R. 253. By the common-law principles of pleading and evidence a party has the right to support the legally made averments in his declaration by legal evidence : Patterson v. Winn, 5 Pet. 233 ; Mills v. Bank of United States, 11 Wheat. 439; and yet the court below in this case denied this right and based the denial on an omission to comply with a rule of court. This court has decided that if the defendant is precluded at the trial from giving' evidence of special matter by omission to give previous notice thereof, he may amend his plea under the Act of Assembly, and set forth the special matter in such plea, and it is error in the court to refuse permission to do so: Sharp v. Sharp, 13 S. & R. 444; Yost v. Ebv, 11 Harris 327.

      Francis Jordan and B. F. Ftter, for defendant in error. —
    In the case of Sharp v. Sharp, 13 S. & R. 444, cited by plaintiffs in error, there does not seem to have been any rule of court regulating the pleadings, and in this respect it differs from this case. Chief Justice Gibson in McCay v. Burr, 6 Barr 153, said “ that the defendant” who sought to cure a defect in his notice of special matter by filing a special plea “ was precluded by the latter and better interpretation of the Act of 1806, from supplying the deficiency in his notice of special matter by embodying with it the additional matter in a special plea.” Plaintiff cannot, by amending his pleadings, avoid the effect of his failure to comply with a rule of court; Thompson v. Hough, 9 Leg. Int. 46. The Act of 1806 applies only to informalities in the pleadings, and will not permit an amendment which introduces a new cause of action; especially if barred by the Statute of Limitations : Bank v. Israel, 6 S. & R. 293; Tryon v. Miller, 1 Whart. 11; Coxe v. Leighman, 1 Id. 287 ; Root v. O’Neill, 12 Harris 226 ; Gardner v. Post, 7 Wright 19 ; Trego v. Lewis, 8 P. F. Smith 463. The rules of court are easily observed and should not be relaxed upon slight pretexts: Beyer v. Fenstermacher, 2 Whart. 97; Sullivan v. Johns, 5 Id. 368. Nor should equivalents for compliance with a rule be accepted: Erwin v. Leibert, 5 W. & S. 103; Wilson v. Irwin, 14 S. & R. 177. Nor should evidence be received unless notice be given as required by the rules of court: Rentzheimer v. Bush, 2 Barr 88 ; Covely v. Fox, 1 Jones 171; Brown v. Herron, 4 Yeates 561; McClurg and Trevor v. Willard, 5 Wright 278. Upon the omission to furnish the particulars according to the demand the evidence of plaintiff was properly rejected: Daniel v. Wilver, 12 Harris 516 ; Finlay v. Stewart, 6 P. F. Smith 183; Dull v. Bricker, 26 Id. 255.
   Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

This suit was brought to August Term 1861. A general declaration in assumpsit was filed on the 9th of October 1863, and on the 24th of that month pleas of non-assumpsit and payment with leave were entered by the defendant. At that point the record stops until the 6th of May 1873, when the cause was ordered for trial. It was tried the next day, a verdict and judgment were obtained, a writ of error was taken, and in July 1874, the judgment was reversed. After the return of the record, on the 12th of February 1876, the plaintiffs were permitted to file a special declaration in which their cause of action was specifically set forth. On the 2d of January 1864, after the cause was at issue, the defendant’s counsel gave notice to the counsel of James Bricker, then living, and the plaintiff on the record, to file within twenty days any paper or papers on which the action was founded, and to file, also, within twenty days, a written statement of the account or demand proposed to be given in evidence and relied on at the trial. These notices were authorized by the 67th and 68th rules of the Common Pleas, which provided that in case of failure to file the papers and statement required, no evidence of such papers or of the plaintiff’s account or demand should be received. No action was taken in pursuance of the notices on the part of the plaintiff, and it was to meet the exigencies of the case created by this neglect that the application to amend the declaration was made. At the last trial the court below were of the opinion that the defect of the record caused by the omission to comply with the provisions of the rulés was not cured by the amendment after the long delay, and accordingly they rejected the evidence offered and directed a verdict for the defendant.

It appears from the pleadings that this controversy grew out of a transaction between James Bricker and the firm of Collins, Dull & Co., who were contractors for the construction of the road of the Bedford Railroad Company. Bricker furnished goods and supplies to three sub-contractors, Keating, McCabe and Dhrew, and for these the plaintiffs alleged that Collins, Dull & Co. agreed to pay out of the estimates on the sub-contracts. The special declaration set out the amounts assumed by the defendant’s firm on account of Keating at $524.20; on account of McCabe at $240; and on account of Dhrew at $1259. The aggregate of the principal sums was $2023.20. This was a pretty significant amount, and it was claimed out of a somewhat complicated transaction. There was a lapse of more than twelve years between the requisition for notice of the plaintiff’s demand and the amendment of the declaration. More than nine years expired after the requisition before any step was taken to secure the trial of the cause. If the specification of the claim had been filed within a reasonable time, even after the expiration of the twenty days, or if, in lieu of the specification, the application to amend the declaration had,been reasonably prompt, adequate relief would undoubtedly have been afforded by the court below- Rut a delay of twelve years was fatal to the success of the efforts of the plaintiffs to cure a defect arising from their intestate’s original neglect. In The Farmers’ and Mechanics’ Rank v. Israel, 6 S. & R. 293, a delay of nine years in applying for leave to amend a declaration was said to be- out of all reason,” and the same remark may be well applied to a casé like this, involving an inquiry into the accounts of five distinct parties interested in a railroad contract, which, so far as the purposes of this suit are concerned, is shown by the record to have been executed for a period of fifteen years. The fact that the amendment was allowed was not enough to justify the admission of the evidence. Judgment affirmed.