author: Mr. Justice Gordon

text:
    Quigley et al. versus DeHaas.
    1. Where parties contracted as the agents and for the benefit of a company, but the contract was under their own hands and seals, they were individually liable and an action of covenant was properly brought against them as individuals. ‘
    2. A contract had for its object the making navigable a stream; it was one undertaking, though made up of several items; there was one price, though for convenience, because the work was to be paid for as it progressed, it was to be apportioned to the several items; this further stipulation was also contained therein, “ that out of the above estimated costs of each of the respective divisions of work, the parties of the first part shall be privileged to retain fifteen per centum until the whole is completed in a satisfactory manner according to contract.” Held, that this was an entire and not a severable contract.
    3. The general rule is that if the part of a contract to be performed by one party consists of several and distinct items and the price to be paid by the other is apportioned to each item to be performed or is left to be implied by law, such contract will be held to be severable, but the conditions stated in this rule will not override the clear intention of the parties, if such intention can be gathered from the whole subject-matter of the contract.
    4. Where by the terms of a contract a party named therein was to be the arbiter to determine whether the work was done according to contract, the decision of this arbiter upon the work performed was an indispensable condition to an action for the price of the work unless it was shown he was dead, absent or refused to act, or that the other party to the contract by the acceptance of the work or otherwise had waived his decision.
    June 6th 1876.
    Before Agnew, 0. J., Mercur, Gordon, Paxson and Woodward, JJ. Sharswood and Williams, JJ., absent.
    Error to the Court of Common Pleas of Clinton county: Of January Term 1876, No. 27. Certified from Eastern District.
    In the court below this was an aetion of covenant, brought by John P. DeHaas against A. J. Quigley and Joseph H. Bailey.
    The action was founded upon the following agreement:—
    “Agreement made and concluded this twenty-third day of August 1871, by and between Joseph H. Bailey and A. J. Quigley, representing the Clinton and Potter County Navigation Co., of the first part, and John P. DeHaas of Curtin township, Centre county, Pa., of the second part, as follows: Witnesseth that the aforesaid Bailey and Quigley, agents for said Navigation Co., agree to pay the aforementioned John DeHaas four thousand dollars and fifty-hundredths, in manner and form hereinafter described, in consideration that the said DeHaas fully execute and perform, according to contract, the following work, viz.:—
    “ He, the said John DeHaas, shall build in a good and substantial manner, as flood-dams should be built, on such streams, cribbed, sparred, puddle ditched, calked and gravelled, two flood-dams, each twenty feet high, with barn-door-gates and drop-gates; the chute to be twelve feet wide, and so constructed that the drop-gates will let off the water at least to a sufficient depth below the barn-door-gates as to allow them to close with ease. These gates to be made secure, and arranged with fastenings, so as to be easily opened and closed. These dams to be constructed, first below the twelve-mile' shanty on the Monument branch of Youngwoman’s creek, and the other about a mile above on a branch of said Monument branch.

      “ He also agrees to put a new chute in the old dam at the eleven-mile shanty twelve feet wide, and clean out, crib up and straighten the said creek from the ten-mile shanty at every point where it may need cribbing or straightening or altering its course to the upper dam, a distance of about three miles: And it is also agreed on the part of the said Bailey & Quigley, that they will pay the said DeHaas at the rate of fourteen hundred dollars for each dam, one thousand dollars for cleaning out and cribbing up the creek, and two hundred dollars for the chute in old dam, and in addition fifty dollars for travelling expenses. Out of all the above estimated costs of each of the respective divisions of work they shall be privileged to retain fifteen per cent, until the whole is completed in a satisfactory manner according to contract.
    “ The drop-gates shall be constructed at the side of the barn-door-gates, with such arrangements for raising as to be done with facility, and also that the chute in the old dam shall be constructed at least seventeen feet wide, instead of twelve feet, as above stated.
    “ The’above work to be paid for as the work progresses from time to time.

      “ It is also agreed that John M. Mason shall be the judge of whether the work is done according to contract.
    “ In witness whereof we have hereunto set our hands and seals, this day and year above mentioned.
    A. J. Quigley, [seal/
    J. H. Bailey, [seal/
    J. P. DeHaas, [seal.]”
    Defendants pleaded non est factum, covenants performed, absque hoe.

    The purpose of this agreement was to malee navigable the stream called Youngwoman’s creek, so that logs could be floated or driven down its waters to the Susquehanna river and thence to market.
    The plaintiff alleged that he had done the work called for in the agreement in accordance with its terms, and sought in this suit to recover the balance due upon the contract.
    The defence was that the defendants were not individually liable ; that the work was not performed as required by the terms of the agreement and that the plaintiff could not recover until it was shown by John M. Mason, who was the arbiter selected by both parties, that the work had been done according to the contract.
    1. Having proven the execution of the contract plaintiffs offered in evidence the agreement between the parties to this action.
    Defendants objected, on the ground that the paper offered in evidence was not identical with that described in offer, the paper offered purporting to be a contract or agreement between the plaintiff and defendants as representing the Clinton and Potter County Navigation Co., and as agents of the said company, and not a contract with them in their individual or personal capacity. Objection overruled, evidence admitted, and exception.
    2. The agreement being in evidence, it was proposed to show by witness that plaintiff did the work specified in contract in good faith, and that defendants accepted the same and used it for the purposes intended.
    Objection, because the only competent witness to prove that the work was done in accordance with contract,.was John M. Mason, who was named as sole judge; and unless he proves performance of the entire contract, plaintiff cannot recover. Overruled, evidence admitted, and exception.
    3. Also, to prove by witnesses the nature and amount of the work done by plaintiff. Same objection, overruled, evidence admitted, and exception.
    4. It was proposed to be shown by a witness that, about the time the work was being finished, John M. Mason came upon the ground with one of defendants and plaintiff to inspect the work, and gave directions as to what was to be done by plaintiff to complete his contract, and that he expressed himself as satisfied with the work, with a few exceptions which were designated by him, and the plaintiff immediately had the work done as directed.
    Objection that offer is vague, not specifying what directions were given, what language used by Mason,' what exceptions made by him; that, not being a party to the contract, his declarations were not admissible, and that Mason himself was in court, and that he is the proper witness'to prove these facts. Overruled, evidence admitted, and exception.
    5. It was proposed to prove by plaintiff’s testimony what directions Mason gave him in relation to the work, and that these directions were complied with.

      Objection that defendants not being present, the alleged conversation between plaintiff and Mason is not evidence to affect them, and that Mason was not empowered to give directions as to what work was to be done. Overruled, evidence admitted, and exception.
    Defendants made the following offers of evidence:—
    1st. The Act of Assembly incorporating the Clinton and Potter County Navigation Company; minute-book showing organization of company; resolution of the company under which Bailey and Quigley were authorized to make a contract for cleaning the stream and putting it in condition for floating logs, to be followed by proof that the contract in evidence was made in pursuance of that resolution.
    Objection, excluded, and exception.
    2d. To ask defendant Quigley whether, when the contract was made, he did or did not explain to DeHaas the fact that defendants were contracting for the company, or the capacity in which they were contracting with him.
    Objection, excluded, and exception.
    3d. Bailey, one of defendants, asked to state whether the payments were ‘made under an arrangement with the company and whether they were made for their account.
    Objection, excluded, and exception.
    Defendants submitted three points:—
    First point. That the agreement of the 23d day of August 1871, in evidence, and its supplement of the 6th of September 1871, also in evidence, do not in law import an individual or personal liability or obligation upon the defendants, and that upon said agreements the plaintiff is not entitled to recover against the defendants, and the verdict of the jury should be for the defendants in this action.
    Second point. That John M. Mason being the person named in the agreement by the parties, who is to judge whether this work was done according to contract, the plaintiff is bound by the terms of the said contract, and not having shown oj; proved an award or decision of said judge, or in any manner accounted for his failure to do so, or that the judgment of said John M. Mason was ever sought, refused or obtained, the plaintiff is not entitled to recover, and the verdict of the jury should be for the defendants.
    Third point. That John M. Mason having been chosen by the parties as judge whether the work referred to in the contract was done according to contract, there can be no recovery by plaintiff until he has proved by said John M. Mason that he performed his contract full and entire according to the terms thereof; and inasmuch as said John M. Mason was in attendance upon court during the trial of the cause, and was not called as a witness- for the plaintiff to prove performance, the plaintiff has failed to make out such a case as would entitle him to recover, and the verdict of the jury should be for the defendants.
    The court answered:—
    “ The first point is refused and the second and third points are answered as follows-: By the terms of the contract between the plaintiff and defendants, John M. Mason was chosen to judge _ whether the work was done according to contract, and if the evidence does not show that in the judgment of Mason the work was done in accordance with the stipulations of the agreement, the plaintiff is not entitled to recover; but if the jury should believe the testimony of DeHaas, that Mason went upon the work, made an examination of what had been done under the contract, gave directions as to what was yet necessary to be done to make the work satisfactory, we are of the opinion that the requirements of the contract have been satisfied, and that the plaintiff is entitled to recover whatever may be due to him under the contract, if the evidence shows that DeHaas went on in good faith and completed what Mason directed should be done in order to make the work satisfactory.”
    The court (Mayer, P. J.) charged the jury :—
    “ But it is contended by the plaintiff that this is not an entire, but a severable contract, and that the plaintiff is entitled to recover the price specified in the agreement for each item of work, if the evidence should satisfy the jury that plaintiff has fully performed that item of work in accordance with the terms of the contract. A careful consideration of the agreement between the parties leads us to the conclusion that this is not an entire, but a severable contract, for the reason that the work to be done by the plaintiff under the agreement consisted of several and distinct items, and the price to be paid by defendants is apportioned to each item of work. For instance, the plaintiff was to build two dams, for which he was to receive $1400 each. He was to clean out and crib up the creek, for which he was to be paid $1000, and he was to put a chute in the old dam, for which he was to be paid $200. The agreement further provides, that the defendants were to retain 15 per cent, out of all the above estimated costs of each of the respective divisions of work. As was said by Justice Williams, in Lucesco Oil Co. v. Brewer, 16 P. F. Smith 855, ‘ if the consideration is single, the contract is entire, whatever the number or variety of items embraced in the subject; but if the consideration is apportioned expressly or impliedly to each of these items, the contract is sever-able.’
    [“ This being our construction of this contract, we say to the jury that DeHaas is entitled to recover the price stipulated to be paid for each of these several items of work, if the evidence satisfies the jury that he has fully performed and completed these several items of work in accordance with the terms of the contract.]
    “ The agreement stipulates that John M. Mason was to be the ‘judge of whether the work was done according to contract.’ De Haas having undertaken in pursuance of the provisions of the agreement to build the two dams, clean out the stream, crib and straighten it, and also to put in a chute in the old dam, a kind of work which required some skill and practical knowledge, and from ,the doing of which disputes might possibly arise, it was proper that the parties to the agreement should mutually select some competent person, who should determine whether the several items of work specified in the agreement were being done according to the contract. It was no doubt with this view that John M. Mason was chosen [and, according to our understanding of the agreement, Mason had the right to direct DeHaas in regard to the work and determine whether it was being done according to contract. He had the right to go upon the work while the dams were in process of erection, while the stream was being cleared, cribbed and straightened, and while the chute was being built, for the purpose of determining whether DeHaas was doing the work according to the terms and specifications contained in the contract.”]
    The verdict was for the plaintiff for $1001.41, and judgment was entered on the verdict.
    Defendants took this writ, and their assignments of error were:—
    1, 2, 3, 4 and 5, to the admission of plaintiff’s evidence in the order of the offers made.
    6, 7 and 8. The rejection of defendant’s first, second and third offers in their order.
    9. The refusal of defendant’s first point.
    10. Of the second and third points.
    11 and 12. The parts of the charge in brackets.

      C. S. McCormick, for plaintiffs in error. —
    The plaintiffs in error were not personally liable upon the contract, and the covenants contained therein were those of the corporation: Campbell v. Baker, 2 Watts 83; Randall v. Van Vechten et al., 19 Johns. 60. The original contract provides, “ that John M. Mason shall be the judge whether the work is done according to contract,” and a,mode having thus been ascertained and pointed out in the contract by the parties to determine whether the work was done in accordance with the contract, before the plaintiff can recover he must establish affirmatively in the manner and by the person named therein, that he has substantially performed his part thereof: Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205; Enniss v. O’Conner, 3 Har. & Johns. 163; Herdic v. Bilger, 11 Wright 60. That the contract was not severable: Fessler v. Love & Powell, 7 Wright 317; Shinn v. Bodine, 10 P. F. Smith 185.

      W. C. Kress and Seymour D. Ball, for defendant in error.—
    Defendants are individually bound, and they only, even though they are described in tbe agreement as agents of the company: 1 Chit. Pl. 35; 2 Kent Com. 630, 631; Story on Agency, sect. 269; 1 Story on Contracts, sect. 224; Norton v. Herron, 12 E. C. L. R. 511; Tanner v. Christian, 29 E. L. & E. R. 103; Meyer v. Barker, 6 Binn. 228; Hopkins v. Mehaffy, 11 S. & R. 126. Campbell v. Baker, 2 Watts 83, cited by plaintiffs in error, is notin point, as the writing in question there was not under seal. This contract is severable: Lucesco Oil Co. v. Brewer, 16 P. F. Smith 351.
   Mr. Justice Gordon

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

This action was well brought against Quigley & Bailey. Though they contract as agents, for the benefit of the Navigation Company, yet they do so under their own individual seals and hence become individually liable: Hopkins v. Mehaffy, 11 S. & R. 128, per Gibson, J. So far we agree with the learned judge below, but from his construction of the contract we must dissent. Whether a contract be entire or severable depends more on the intention of the parties as gathered from the whole instrument, than upon the specific method of performance or payment. We have, in the case of Carmalt v. Platt, 7 Watts 318, an instance of this manner of construction. By the terms of the contract, Platt agreed, from the lands therein described, to manufacture and deliver to Carmalt, 60,000 feet of white pine boards, for which he was to receive $300. In a subsequent covenant, in the same agreement, Carmalt agreed to sell to Platt certain lands for which Platt was to pay $525, in lumber, at customary prices. At first blush this would appear to be a severable contract; but it was held not to be so. For though, by a strict construction of its terms, it might well bear such an interpretation, yet as it was apparent that it would not have been executed by the parties except as an entire contract, it was held to be entire. The rule as adopted in the case of the Lucesco Oil Co. v. Brewer, 16 P. F. Smith 351, from Parsons on Contracts, that if the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such contract will generally be held to be severable, is certainly applicable to contracts such as that which was under consideration in that case. But it is not even intimated that the circumstances therein stated would override the clear intention of the parties if such intention were apparent from the whole face of the agreement. Indeed it is expressly said by the author, by whom the above rule is stated, that no precise rule can be given by which this question, in a given case may be settled, but like most other questions of construction, it must depend upon the intention of the parties as gathered from the whole subject-matter of the contract: 2 Pars, on Cont. 517. In any view, this contract must be taken as entire. It was designed to accomplish a single object, to wit: the navigability of the stream therein mentioned. It was one job, though made up of several items; there was one price, though, for convenience, because the work was to be paid for as it progressed, it was apportioned to the several items. Even this apportionment must be taken as inseparable from the whole work, for it is more than probable that, for instance, the price of $1400 for building each dam, was a value put upon such dams as part of the whole job, rather than as separate, isolated items ; for the dams would be worth little or nothing with the remainder of the creek unimproved. The parties themselves have, however, put this matter beyond doubt by the following clause in their agreement, to .wit: out of all the above estimated costs of each of the respective divisions of work, Quigley & Bailey shall be privileged to retain fifteen per centum until the whole is completed in a satisfactory manner, according to contract.” That this provision was designed to secure the proper completion of the whole work is not open to doubt, and if the plaintiff is permitted to recover full price for a partial performance, it is certain that this covenant is, in effect, abrogated. We conclude, therefore, that the court below was wrong in holding the subject-matter of this contract to be severable.

We think also that the court erred in refusing the defendants’ second and third points. By the contract John M. Mason was the arbiter who was to determine whether the work was done according to the provisions of that contract. This provision was a reasonable one, designed to prevent controversy, and until the plaintiff procured the judgment of this arbiter he had no action. The cases of Monongahela Nav. Co. v. Fenlon, 4 W. & S. 205, and Reynolds v. Caldwell, 1 P. F. Smith 298, certainly do hold that, in a case like that above stated, the decision of the arbiter is a sine qua non to an action for the price of the work. We find nothing in the evidence which goes to show that Mason, as arbiter, pronounced upon plaintiff’s work, or upon any part of it, as a finished job. At best Mason did but advise DeHaas to do certain things which Bailey required to be done, but whether they met his approval when done we are not informed.

We do not say that the plaintiff might not have been excused from producing this judgment or decision by showing circumstances which rendered its production impossible, such as the death or absence of the arbiter oh, his refusal to act — or that the defendants by the acceptance of the work, or otherwise, waived that part of the contract. But in the absence of such showing the rule as above stated holds good.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Overseers of Porter Township versus Overseers of Jersey Shore.
    1. Under the provisions of the Act of 13th of June 1836, a regular order of removal was made by two justices, finding that a pauper chargeable upon a township for temporary relief had riot gained a legal_ settlement therein, and adjudging her fast place of settlement to be an adjoining township, and commanding the overseers of said township to receive and provide for the pauper, which the overseers refused to. do, and this without appeal from the order of removal. Held (reversing the court below), that the overseers had no right to refuse the pauper and that mandamus lies to enforce compliance with the order of removal.
    2. Held, further, that overseers of the poor are officers elected, within the meaning of the 18th section of the Act of 14th of June 1836, which gives the Court of Common Pleas power to issue writs of mandamus to officers and magistrates elected or appointed in or for any township.
    3. The provision of the 18th section of the Act of 13th of June 1836 which prescribes a penalty for a refusal to receive a pauper under an order of removal, is not a remedy to enforce performance of the duty, but a punishment for its non-performance, and is not an adequate remedy, nor is it such a statutory remedy as is contemplated by the Act of 21st of March 1806, which forbids the use of a common-law remedy where one is provided by statute.
    June 7th 1876.
    Before Agnew, C. J., Mercur, Gordon, Paxson, and Woodward, JJ. Sharswo'od and Williams, JJ., absent.
    Error to the Common Pleas of Lycoming county: Of January Term 1876, No. 99. Certified from Eastern District.
    This was an application in the court below, by the Commonwealth ex rel. James' G. Ferguson and Frederick Staver, Overseers of the Poor fof Porter township, in Lycoming county, to obtain a rule to show cause why a writ of mandamus should not issue to Thomas Calvert, Jr., and Mark Keyser, Overseers of the Poor of the Borough of Jersey Shore, commanding them to receive and provide for a pauper, in pursuance of an order of removal from two justices, under the provisions of the Act of 18th June 1836.
    The petition of the relators was substantially as follows:—
    That on the 20th day of November 1874, two of the justices of the peace in and for said county, granted an order directing petitioners to remove one Rebecca Deshera, a poor person? from the poor district of Porter township to the district of Jersey Shore borough, and requiring the overseers of poor of Jersey Shore to receive and provide for the said pauper, whose place of settlement the said justices adjudged to be in the borough of Jersey Shore.
    That in pursuance and by virtue of the said adjudication of settlement and order of removal, petitioners, on the 21st day of November 1874, took the pauper to the district of Jersey Shore, and demanded of the overseers of said district to take charge of and provide for her, and also at the same time exhibited and offered to said overseers the order of removal of said pauper.
    That said overseers refused to receive the said pauper, and refused to make any provision for her support as overseers of the said district of Jersey Shore, as they were and are bound in law to do, and refused to accept said order of removal, and still refuse to accept and provide for said pauper; and by reason of the premises, the petitioners, as overseers of Porter township, have suffered . damage, and have no specific legal remedy therefor.
    They therefore pray the court to issue a mandamus to said overseers of the poor of the borough of Jersey Shore, commanding them to receive and provide for the said pauper, &c.
    The court granted the rule to show cause, and the defendants, without denying the facts, filed an answer that set forth,
    1. That the Court of Common Pleas of Lycoming county has no jurisdiction in the case as presented by the petition of the overseers of the poor of Porter township.
    2. That there is a specific remedy given by the Act of Assembly for the commission of any act such as set forth in the petition filed, and such specific remedy is exclusive, and must be followed by the overseers of the poor of Porter township.
    3. That the Court of Common Pleas has no jurisdiction in any case over overseers of the poor; the Court of Quarter Sessions of the peace having exclusive jurisdiction by the laws of this Common-, wealth.
    4. That the said Rebecca Deshera has no legal settlement in Jersey Shore borough, and never has had any, or even the semblance of one; and the sole object of the proceedings of the overseers of the poor of Porter township is to compel the overseers of the poor of Jersey Shore to go to the cost, annoyance and trouble of ascertaining the legal residence of the said Rebecca Deshera.
    After argument, the court (Gamble, P. J.) discharged the rule and in an opinion said:—
    “The answer of the defendants does not deny the allegations of the petition, but assigns legal reasons why the writ of mandamus should not be granted, and is regarded therefore in the nature of a demurrer.
    “ Two questions are presented by this demurrer for the consideration of the court:—
    “ 1st. The want of jurisdiction in the Common Pleas; and
    “ 2d. The legal propriety of granting the writ of mandamus under the canon of construction established by the Act of Assembly of 1806.
    “ As to the jurisdiction of the Common Pleas, Justice Sharswood has carefully reviewed the authorities in the case of the Directors of the Poor v. Malany, 14 P. E. Smith 144, referred to approvingly in Delaware v. Greenwood, 16 Id. 63.; from which it would appear that in all cases arising under the Act of 1836, relating to the support and employment of the poor, between contending districts, the Quarter Sessions have sole and exclusive jurisdiction. This is an application to the Court of Common Pleas to coerce obedience to the requirements of that statute by the defendants as overseers of the poor; to command them to receive and provide for the pauper therein named, when the act not only enjoins that duty, but annexes a specific penalty for every such refusal or neglect of such duty. We are of the opinion that the Common Pleas has no jurisdiction over the subject-matter presented in plaintiff’s complaint. But lest' we should be in error in that conclusion will consider the second objection arising under the uniform construction given to the 13th section of the Act of Assembly of the 21st of March 1806, which is as follows: £ That in all cases where a remedy is provided or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such act or acts into effect.’
    ££ When it is remembered that the duty we are here asked to enforce by a writ of mandamus is expressly enjoined by the 18th section of the Act of 1836, and the remedy or penalty for any failure or neglect of performance also expressly provided,- with the mode of its recovery, and its appropriation prescribed, it would seem to be very plainly forbidden by the letter and spirit of the act quoted.
    ££ When to this is added the consideration of the rule equally well settled, that the writ of mandamus, although demandable of right in a proper case, is to be invoked only in case of last necessity, and never Avhere there is another effectual remedy, the duty of the court is still more plain and imperative.”
    The relators took this writ of error and assigned for error this judgment of the court below.

      JET. II. Martin, II. P. Allen and J. M. Cf amble, for plaintiffs in error. —
    Under sect. 18 of Act 14th June 1836, Pamph. L. 626, Courts of Common Pleas have power ££ to issue writs of mandamus to all officers and magistrates, elected or appointed in and for the respective county, or in and for any township, district' or place within such county.” The writ will be granted whenever the applicant shows a specific legal right and in the absence of any specific legal remedy: Com. v. Rosseter, 2 Binn. 360 ; James v. Com’rs of Bucks County, 1 Harris 75. Overseers of the poor are undoubtedly included in the Act of 1836, supra, and mandamus can issue to such officers from Common Pleas to compel them to perform their duty. - The order of removal relieves the overseers from responsibility for any charges incurred for the pauper : Directors of Schuylkill v. Overseers of Montour, 8 Wright 486. Mandamus will lie if the existing legal remedy is inadequate and will not afford the aggrieved party the particular right which the law accords him: High on Extraordinary Remedies, p. 19. Where a penalty is provided it will not supersede the remedy by mandamus : Com. ex. rel. Thomas v. Com’rs of Allegheny, 8 Casey 222; Borough of Uniontown v. Com. ex. rel. Veech, 10 Id. 293; Hamilton v. Councils of Pittsburgh, Id. 496; Howe v. Com’rs of Crawford County, 11 Wright 361; Hall v. Selectmen of Somersworth, 39 N. H. 511; People v. Common Councils of New York, 45 Barber 473; Peoples. Collins, 7 Johns. 459; Bates v. Overseers of Poor, 14 Gray 163. The statute gives no adequate remedy against the district for the support of a pauper after the order of removal. It contemplates an immediate removal as soon as he becomes chargeable and a prompt acceptance by the officer of the district to which removed: Overseers of Sugarloaf v. Directors of Schuylkill County, 8 Wright 483.

      Henry 0. Parson and P. D. Brieleer, for defendants in error.—
    The theory of the poor law is that the Quarter Sessions are to administer it: Nippenose v. Overseers of Jersey Shore, 12 Wright 406; Directors of the Poor v. Malany, 14 P. F. Smith 148; Versailles v. Mifflin, 10 Watts 360; Marion Township v. Spring Township, 14 Wright 308. The overseers of Porter had a specific remedy under the 18th sect, of Act of 13th June 1836, and they were bound to pursue that remedy: Criswell v. Clugh, 3 Watts 330; Spigelmoyer v. Walter, 3 W. & S. 540; Moyer v. Kirby, 14 S. & R. 162; Commonwealth v. Wellsboro & Tioga Plank Road Co., 11 Casey 152.
   Chief Justice Agnew

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

The Court of Common Pleas has power to issue writs of mandamus “to all officers and magistrates, elected or appointed, in,or for the respective county, or in or for any township, district or place within such county, and to all corporations being or having their chief place of business within such county:” Act 14th June 1836, sect. 18. Overseers of the poor are officers elected in the several townships, as districts for the poor, and are therefore subjects of this high power, unless special jurisdiction has been conferred upon the Court of Quarter Sessions in respect to the subject-matter, or a special remedy has been provided by statute, or an adequate remedy otherwise exists. The Quarter Sessions has no power to enforce the acceptance of a pauper under an order of removal, that has not been appealed from. The provision of the poor law, imposing a penalty of twenty dollars under the 18th section, to be recovered before a magistrate, under the 43d section, is not a remedy to enforce performance of the duty. It is but a punishment for nonperformance. A remedy is that which is used to enforce a right or the performance of a duty, and unless it reaches the end intended, and actually compels performance of the duty, it is not adequate. The duty of maintenance being ascertained judicially, it is the right of the township procuring the order of removal to have it executed, and the duty of the township to which the removal is made to receive and maintain the pauper. This duty must be enforced in the interests of humanity and justice. A penalty may punish the wrong of the- officer, but does not enforce the duty of the township to receive and maintain. After payment of the penalty the duty still remains, otherwise the right of the removing township is without remedy, and the pauper is not maintained and cared for, and suffers in the inhuman contest. So remorseless often are avarice and meanness, they will pay the penalty to escape the heavier duty of continued support. It cannot be said, therefore, that the provision of the 18th section for a penalty is either an adequate remedy or a statutory remedy, which alone can be pursued, according to the Act of 1806.

It remains to inquire into the appropriateness of the remedy by mandamus. The law as to the exercise of the power to issue the writ is pretty well settled. There must be a specific legal right and the want of a specific legal remedy. When the legal right has not been ascertained or a remedy exists sufficient to enforce the right claimed, the writ of mandamus will not be granted. It is a high prerogative writ, to be used rather as a last resort than a common mode of redress. Hence, the court granting it will be careful to examine the circumstances and will exercise a sound discretion in doing so. See the following cases: Commonwealth v. Rosseter, 2 Binn. 360; Commonwealth v. Mitchell, Clarke et al., 2 Penna. 517; Hester’s Case, 2 W. & S. 416; Reading v. Commonwealth, 1 Jones 196 ; James v. Bucks County, 1 Harris 72; Heffner v. Commonwealth, 4 Casey 108. An examination of this case will show that the writ ought to have been granted. There was a regular warrant of removal granted by two justices, finding that the pauper had become chargeable upon Porter township for temporary relief — that she had not gained a legal settlement therein — adjudging that her last place of legal settlement was the poor district of Jersey Shore, and commanding the overseers of the poor of Jersey Shore to receive and provide for her. These overseers refused to receive the pauper, but did not appeal from the oi’der of removal, and in their answer to the petition for the mandamus make no denial of the facts, but in effect demur to the right to have the writ. But the overseers of the poor had no right to refuse to accept the pauper under a regular order of removal. The judgment of the justices was conclusive until regularly reversed on an appeal, and its effect was to relieve Porter township from the duty of support. In the face of this order, the overseers of Porter could not continue to maintain the pauper. Humanity and justice, therefore, demanded that while the order continued in force, the duty of maintenance should fall upon Jersey Shore. If aggrieved, Jersey Shore had a remedy by appeal. The pauper was not to suffer meanwhile. The conclusiveness of the order is established by Overseers of Sugarloaf v. Directors of Poor of Schuylkill, 8 Wright 481; Directors of Schuylkill v. Overseers of Montour, Id. 484; Overseers of Nippenose v. Overseers of Jersey Shore, 12 Wright 402. An action on the case would not lie on behalf of the pauper to enforce the order, and a verdict for damages would be no proper substitute; and what would become of the pauper in the meantime, or who would undertake her cause ? The writ of mandamus is the only remedy left, and it is clearly applicable: Commonwealth ex rel. Thomas v. Commissioners of Allegheny, 8 Casey 222; Borough of Uniontown v. Commonwealth, 10 Id. 293; Hamilton v. Pittsburgh, Id. 496 ; Howe v. Commissioners, 11 Wright 361.

We think the learned judge below erred in refusing the mandamus, and that legal right, as well as justice and humanity required him to compel the overseers of the poor of Jersey Shore, by mandamus, to perform the duty of receiving and maintaining the pauper cast upon them by the order of removal.

The judgment refusing the writ is therefore reversed, and a procedendo awarded; and the record is ordered to be remitted for this purpose.


text:
    Miller et al. versus Wentworth.
    1. In the absence of fraud or duress upon a wife, a certificate of acknowledgment of a deed by her is conclusive of the facts therein stated.
    2. The substantial requirements of the Act of 24th February 1770, are a separate examination of the wife apart from her husband, her full knowledge of the contents of the deed and her voluntary consent to its execution.
    3. The certificate of a justice of the peace to the acknowledgment of a deed by a married woman showed that “ the said O. M. H. (the wife), being of full age, and by me examined separate from her said husband, and the contents of the said indenture being first fully made known to her, acknowledged that she signed, sealed and delivered the same without any fear or compulsion of her said husband.” There was no evidence of fraud or duress upon the wife, and the grantee in the deed was a boná fide purchaser for value and without notice of the irregularity: Held, in an action of ejectment against the purchaser by the heirs of the wife, that her acknowledgment was sufficient.
    4. Under these circumstances the fact that this acknowledgment was taken a few minutes before the wife signed the deed, though irregular, cannot be inquired into.
    5. The “ copy” of a lost instrument intended by the Act of Congress of 23d June 1874 (for stamping unstamped instruments), is a substantial copy, or such a draft of the original instrument as will identify the subject of the tax.
    6. H. executed a deed of lands to W. and gave him money to buy the necessary stamps with; W. used the money for his private purposes and did not stamp the deed; it was destroyed a year and a half afterwards by fire, unstamped and unrecorded; a copy of it was made by the scrivener who drew the original, from memoranda and from a survey made by him and from memory; this copy was duly stamped before a judge of the Common Pleas and so certified by him according to the above Act of Congress: Held, that this was a sufiicient “ copy” within the Act of Congress, and that by the stamping of such copy the original deed was restored to competency as an instrument of evidence.
    7. One claiming title as heir of the grantor in an unstamped deed, upon the ground that the deed was invalid for want of a stamp, is not within the proviso of the Act of Congress of 23d June 1874, that “no right acquired in good faith shall in any manner be affected” by the stamping of unstamped instruments under the act.
    June 7th and 8th 1876.
    Before Agnew, C. J., Mercur, Gordon, Paxson and Woodward, JJ. Sharswood and Williams, JJ., absent.
    Error to the Court of Common Pleas of Warren county: January Term 1876, No. 135. Certified from Eastern District.
    Ejectment, begun May 1st 1873, by Cynthia Miller and others, against Darwin Wentworth. The plaintiffs claimed title as heirs at law of Clarissa Howd; the defendant claimed under a deed to himself from Sylvester and Clarissa Howd.
    In March 1867, Clarissa Miles, being seised of the property in question, married Sylvester Howd, at the advanced age of seventy-one years. In the spring of 1871, Howd and his wife sold the property to Wentworth, for $13,429.65, of which part had been paid at the time this action was brought, and the larger part was secured to be paid. On May 1st 1871, they executed a deed for the premises to Wentworth. The sufficiency of the acknowledgment of this deed by Mrs. Howd raised the first question in the case. It appeared that the deed was destroyed by fire in November 1872. At the trial, on December 7th 1875, after proof of its loss, J. C. Hamilton, the justice of the peace before whom the acknowledgment had been taken, testified that the certificate of the acknowledgment of the deed was in these words:—
    “Be it remembered that on the 1st day of May 1871 before me, a justice of the peace in and for said county, personally appeared the above-named Sylvester Howd and Clarissa M. his wife, and acknowledged the above indenture to be their act and deed, and desired the same might be recorded.. She, the said Clarissa M. Howd, being of full age, and by me examined separate from her said husband, and the contents of the within indenture being first fully made known to her, acknowledged that she signed, sealed and delivered the same without any fear or compulsion from her said husband.”
    Hamilton was called by the plaintiffs in rebuttal, and testified as to what took place when the deed was acknowledged before him:—
    “ I took the deed all drawn. I informed them I had the deed, and my impression is I read the whole deed, but cannot state positively. I asked in substance if they acknowledged it to be tbeir act and deed. Mrs. Howd made no reply in words; Mr. Howd said nothing. Mrs. Howd then signed the deed, and I turned to Mr. Howd, and asked him to sign the deed, and he made the remark that it would not be necessary. I said it would be worthless without his signature. He said it was his wife’s, and he had nothing to do with it; but he finally signed it. After he signed it, I took it with me to the office, and that ended the interview.
    “ Mrs. Howd was sitting to my left; Mr. Howd rather facing me and her. They remained in that position. She went to the table and signed it, and resumed her seat, and he did the same. They were four to six feet from me, and facing me. It was a number of days before I delivered the deed to Wentworth. I recollect of nothing said at the time of the acknowledgment about my delivering the deed. Mr. Howd, a few days after, directed me to deliver the deed, and counted out some money to pay for stamps. I delivered the money to Wentworth — $13.50. The deed had not been stamped. Mrs. Howd was in the room when Howd told me to deliver the deed, and the note was taken for purchase-money. I saw or heard no noise or threats or menaces from Mr. Howd. I asked her if she acknowledged it to be her free act and deed, and she gave a little laugh and signed it. I asked her the question and she signed it after. It was all closely connected.”
    There was no evidence of any fraud or duress in obtaining Mrs. Howd’s acknowledgment, and Wentworth had no notice of any irregularity in the way in which the deed was acknowledged.
    The other question- in the case was, whether a copy of a lost instrument which had never been stamped, reconstructed principally from memory and never compared with the original, was such a “ copy” as could be stamped under the Act of Congress of 13th June 1874. The facts on which this question arose were these: The original deed was delivered to Wentworth unstamped. At the time of its execution, the grantors gave him $13.50 with which to purchase stamps for it. Wentworth never bought the stamps, but, after a time, used the money given him by Howd for other purposes. The deed was in his possession unstamped for more than a year, although during that time he had opportunities for buying stamps for it. It was unstamped when it was destroyed by fire in November 1872. It had never been recorded.
    On March 4th 1875, one Wiggins, executor of Sylvester Howd, caused a copy of this deed to be made and produced the same before the president judge of the Common Pleas of Warren county, for the purpose of affixing the proper stamps thereto. Stamps to the amount of $13.50 were duly affixed to this copy and cancelled by Wiggins in the presence of the judge, and a certificate of these facts made according to law by the judge upon the copy. The same witness, Hamilton, testified that the circumstances under which this copy was made were these: “I was a surveyor by profession ; I made a survey of the land before I made this deed; I made a survey, taking notes; I made a draft from the notes after the survey; I made the draft and found errors in the chaining; 1 resurveyed the ground and made notes of the resurvey; I copied the survey, as corrected, into a book; I made a draft of the two pieces on one paper. I was called on by W. D. Brown for a draft of the land in the deed. I furnished him a description; I had the draft before spoken of from the corrected survey; from that I copied the description I furnished to W. D. Brown for the bill to perpetuate evidence; I did not compare the description I handed Mr. Brown with the draft from which I made it; I made it in part from memory, aided by the draft, and part I knew without any draft, as I was familiar with the ground; I relied chiefly on the draft, although I had it in memory clearly; I never compared the description I made out with the description in the printed bill; I made the copy of the deed shortly before the first trial of this case; I took the description from the printed bill; I got the printed form of the deed from Amri Davis; I think it is like the form of the deed I first filled up; I made no comparison of this form with the form of the other deed I drew; I never compared the description in this with the description in the printed bill; I mean by copy my recollection of the original deed, assisted by what papers I had; they are the same grantors and the same grantees, and the paper includes the land described in the writ; there was other land in the deed besides what is described in the writ; my knowledge of contents is from memory, aided by all the papers; I do not know what became of the draft; there may be a variation in the words and forms of the words.”
    The court below (Wetmore, P. J.), under exception by the plaintiff, ruled that the copy stamped was a sufficient copy under the Act of Congress, and that the original deed was thereby restored to competency as an instrument of evidence, and, proof having been made of its loss, admitted secondary evidence of its contents.
    The court charged, in effect, that the stamp laws had been sufficiently complied with, and further, that Mrs. Howd’s acknowledgment was sufficient to pass her title.
    Verdict for defendant and judgment, to which the plaintiffs below took this writ of error. The assignments of error raised the two questions mentioned above.

      Johnson $ Lindsey and J. 0. Strong, for plaintiffs in error.—
    The grantee of a married woman must see that the deed to himself is properly acknowledged: Michener v. Cavender, 2 Wright 834. The statutory form of acknowledgment must be strictly followed: Graham v. Long, 15 P. F. Smith 383; McCandless v. Engle, 1 Id. 310; and this must appear in the certificate. This acknowledgment and the certificate were a fraud upon the wife. Besides, the presence of the husband at the acknowledgment by the wife, raises a presumption of duress. This court will go behind the certificate in either case. Mrs. Howd’s acknowledgment was taken before she signed the deed; this was irregular: Michener v. Cavender, supra.

    The copy of an instrument, which can be stamped under the Act of Congress of 23d June 1874, is a literal transcript of the lost instrument; one which has been compared with it. Further, that act ■ has a proviso that “ no right shall be affected by stamping in pursuance of the act.” The copy in this case was not stamped till after suit begun, when the rights of the parties were fixed; the case, therefore, falls within the proviso.

      W. B. Brown and B. Brown, for defendants in error. —
    In the absence of fraud or duress practised on the wife, the certificate of acknowledgment is conclusive of the facts stated in it; it has been so decided in a line of cases, from Watson v. Bailey, 1 Binn. 470, down to Heeter v. Glasgow, 29 P. F. Smith 79. The certificate was a substantial compliance with the requirements of the law: Evans v. Commonwealth, 4 S. & R. 272; M'Intire v. Ward, 5 Binn. 301; Shaller v. Brand, 6 Id. 435. It appears that Mrs. Howd was examined apart from her husband, she knew the contents of the deed, and her will was free. ' The signing, sealing and acknowledging were contemporaneous; Michener v. Cavender does not apply to such a case. A vendee need not inquire whether the certificate is true in fact, if it is sufficient on its face. The copy stamped was a sufficient copy. The Act of 1874 was passed to raise a revenue; it should be interpreted to promote that object: Brinker v. Blinker, 7 Barr 53. The Act of Congress of 13th July 1866, sect. 9, is in pari materia; that provides for stamping copies of unstamped papers “ to the satisfaction of the collector.” The unstamped deed was valid to pass a title; its only disqualification was to its being used in evidence: Long v. Spencer, 1 Weekly Notes 435; Tripp v. Bishop, 6 P. F. Smith 424. Therefore the plaintiffs below acquired no rights upon Mrs. Howd’s death.
   Chief Justice Agnew

delivered the opinion of the court October 10th 1876.

The decision of two questions will determine this case. 1. The sufficiency of the acknowledgment of the deed from Mrs. Howd to Darwin Wentworth. 2. The sufficiency of the payment of the stamp duty. As to the first it is to be observed the evidence discloses only irregularity, and no imposition, coercion or other element of fraud or duress, in procuring the acknowledgment. The defendant is a bonfi fide purchaser, for a full consideration, without notice of any irregularity; relying on the certificate of the magistrate, there being nothing on its face to put him upon inquiry. In such a case the certificate is conclusive of the facts stated in it, and parol evidence will not be received to impugn it: Barnet v. Barnet, 15 S. & R. 72; Jamison v. Jamison, 3 Wharton 457 ; Louden v. Blythe, 3 Casey 22; Williams v. Baker, 21 P. F. Smith 476; Heeter v. Glasgow, 2 Weekly Notes 1. The cases supporting the exceptions of fraud and duress prove the rule:- Louden v. Blythe, 4 Harris 532 ; Michener & Wife v. Cavender, 2 Wright 334; Hall v. Patterson, 1 P. F. Smith 289; McCandless v. Engle, Id. 309.

These principles leave only a single inquiry. Is the acknowledgment of Mrs. Howd’s deed sufficient on its face ? It does not literally follow the words of the A.ct of 24th February 1770. Yet the rule is firmly established that if the essentials, or substantial requisites of the act appear in the acknowledgment, it is sufficient. So many cases have been decided on this point a particular examination of each is unnecessary: M'Intire v. Ward, 5 Binn. 296; Shaller v. Brand, 6 Id. 438; Id. 441; Jamison v. Jamison, 3 Whart. 472. The exceptional cases also prove the rule: Watson v. Bailey, 1 Binn. 479 ; Evans v. Commonwealth, 4 S. & R. 272 ; Thompson v. Morrow, 5 Id. 289 ; Hawley v. McClurg, 9 Id. 273. The substantial requirements of the Act of 1770 are a separate examination of the wife apart from her husband — her full knowledge of the contents of the deed — and her voluntary consent to its execution by herself: Evans v. Commonwealth, 4 S. & R. 273; Louden v. Blythe, 3 Casey 25; Louden v. Blythe, 4 Harris 532. The acknowledgment of Mrs. Howd, according to the secondary evidence of its contents, set forth that her husband and she appeared in person and acknowledged the indenture to be their act and deed and desired that it might be so recorded; that she was examined separate and apart from her husband; that the contents were first fully made known to her, and that she acknowledged that she signed, sealed and delivered the same without any fear or compulsion from, her said husband. All the requisites of the Act of 1770 are thus given, unless we hold that the absence of a declaration of free will deprives it of sufficiency. It is reduced to this question, therefore, whether the words “ without any fear or compulsion from her said husband,” are equivalent to a declaration of free will. It certainly is, unless the legislative intent was to protect her from some other coercion, or fear, than that of her husband. But we know of none other intended. The law was founded on the common-law principle of marital unity, and subjection of the wife to the husband. Being covert the law intended that coverture, pro hac vice, should be suspended, by a separate examination and an expression of her will, without the fear or compulsion of her husband before her. We find no case exactly in point, but many where the purpose of the law is said to be to free her from the control of her husband. Eor example see Evans v. Commonwealth, 4 S. & R. 273 ; Louden v. Blythe, 3 Casey 25 ; Louden v. Cowden, 6 S. & R. 274 ; Louden v. Blythe, 4 Harris 539; Shrader v. Decker, 9 Barr 14. The means of this special emancipation from the restraints of coverture were to be separation from the presence of her husband when she could speak freely into the private ear of the magistrate, whose duty it would be to probe the freedom of her will, and whose official character would be a practical protection from fear or constraint. Therefore when she has, on such an examination apart, and having a full knowledge of the act she is doing, declared that she signed, sealed and delivered the deed without any fear or compulsion of her husband, she has substantially declared that her will was free and her consent was voluntarily given.

Some of the cases are quite strong. Thus in Shaller v. Brand, 6 Binn. 435, it was held that all the requisites as to the freedom of the will were supplied by the words “voluntarily consenting thereto,” omitting the words “ without any coercion or compulsion of her said husband.” So the averment of a full knowledge of the contents were decided to be supplied by a recital of what the deed was for: M’Intire v. Ward, 5 Binn. 296. So the words “ seal and deliver” were supplied by “seal and acknowledge;” and the absence of the word “ compulsion ” held not to be fatal: Jamison v. Jamison, 3 Whart. 457, 472. In view of the purpose of the law and the judicial interpretation of its provisions, we think the secondary evidence in this case presented a sufficient acknowledgment of the deed.

From the foregoing observations and authorities it will be seen that the alleged irregularity of taking the acknowledgment before the actual signature of Mrs. Howd cannot be inquired into in the absence of fraud or duress. Michener and Wife v. Cavender, 2 Wright 334, is a very different case. There the wife did not sign the mortgage either before or at the time of taking her acknowledgment. If her name became affixed it was long afterwards. Here the whole transaction was one and the same, and the order of time of signature was a mere irregularity, which could not be shown by parol to contradict the acknowledgment, in the absence of fraud or duress.

The second question relates to the sufficiency of the payment of the stamp duty. It seems that Mrs. Howd advanced to the defendant the money to pay for the necessary stamps; but he neglected to provide and apply them, and finally used the money for his private purposes. Having sold parts of the land, he handed the deed to Hamilton, to enable him to draw up deeds to the purchasers. Hamilton’s office was burned, and Mrs. Howd’s deed to defendant was consumed. This' action was brought by Mrs. Howd’s heirs against Wentworth, in possession, to recover, on the ground of the alleged invalidity of the deed, and it became necessary to stamp the deed or a copy, to enable Wentworth to avail himself of it as evidence. But the deed being unrecorded, and no copy preserved, this became impossible. He therefore procured a draft of it to be made by Hamilton, the scrivener, as nearly as possible, from memoranda kept by him, and the survey, and from his memory, which was clear and distinct in all material respects. This paper, which was in fact a substantial copy of the deed, was presented to the judge, and permitted to be stamped, and certified by him according to the provisions of the Act of 23d June 1874: Laws U. S. 1874, p. 291. Was this sufficient to extinguish the duty and restore the deed to competency as an instrument of evidence?

This brings us to consider the intention of the Stamp Acts, and the interpretation to be placed upon the Act of Congress of 1874. The United States having repealed the stamp duties, and having shown an intention to relieve the citizen from the duty altogether in the future, we cannot suppose that the past requires the application of stringent rules, but that a just, fair and substantial compliance with the duty ought to be a sufficient performance. If the citizen has done all fairly within his power, if the officer of the law has accepted this performance, and if the United States have thereby received all their just dues, we ought not to stick in the bark by giving to the word “ copy,” in the Act of 1874, a signification so literal and so rigid that performance will be for ever prevented, and the citizen will lose irrecoverably the advantage of the deed as an instrument of evidence.

In the Turnpike Co. v. McNamara, 22 P. F. Smith 278, it was said of the stamp acts: “ Thus the purpose is plain to prevent the use of the unstamped paper so long as it remains without payment of the tax or duty upon it. This is simply a disqualification of the instrument in the hands of the delinquent to prevent its use until he pays the tax.” It was on that ground we held, in that •case, it was not a federal rule for the regulation of evidence in state courts, but a means of compelling payment of the tax, and therefore within the domain of federal power; otherwise an attempt by Congress to interfere with the domestic affairs of the state would be invalid. It was not the intention of Congress to destroy the rights of the states, but to compel compliance with the lawful acts of the United States. This was fully shown in the case of the Turnpike Co. v. McNamara. The intent of Congress was manifested, in the case of even entire non-payment of the stamp tax, in those provisions of the stamp acts which declare that “the title of a purchaser of land by deed duly stamped shall not be defeated or affected by the want of a proper stamp on any deed conveying said land by any person from, through or under whom his grantor claims or holds title.” Act 1864, sect. 158, Laws United States 293; Act 1866, p. 143.

Thus the laws of Congress recognise the fact that the title passes by the unstamped deed, though in the hands of the delinquent no use can be made of it as evidence, until he pays the tax. This accords with our own law in a similar aspect. By a deed duly executed the title passes and its total destruction or even its cancellation by the grantee himself will not revest the title in the grantor: Withers v. Atkinson, 1 Watts 236; Wiley v. Christ, 4 Id. 199; Rifener v. Bowman, 3 P. F. Smith 313. In the last case C. J. Woodward presents the distinction between the estate and the deed very clearly. If a grantee alter or destroy his title deed, yet his title to the land is not gone. It is the instrument which is rendered void, not the estate.” Congress has shown its regard, not only for the preservation of the estate which passed by the deed, but for the instrument itself by giving to the delinquent a locus pcenitentice. He may pay the tax and relieve his deed. Without a special reference to the laws prior to the Act of 1874 this intent will be discovered in the 163d section of the Act of 1864, U. S. Laws 295; 153d sect., Id. 292; also, Act 1866, Laws U. S., p. 143; Act of June 6th 1872, sect. 36, Laws U. S., p. 256. Coming to the Act of 1874, supra, which governs this case, we find that Congress having by the Act of 6th June 1872, sect. 36 (Laws U. S., p. 256), repealed all stamp duties except on bank-cheeks, drafts, and orders, passed the Act of 1874 expressly and solely to “ provide for stamping unstamped instruments, documents or papers.” The act is wholly remedial, excepting nothing from its operation. It provides that “all,” when “ stamped by any person having an interest therein, or when the original is lost, a copy thereof, at any time prior to the 1st day of January 1876,” “shall be as valid to all intents and purposes as if stamped when made, signed or issued.” With this manifest remedial intent of Congress before us, to relieve all papers from the disqualification of the statute on payment of the tax within the time limited, what is to be done with that vast majority of documents of which no copy is ever made or preserved, if lost, destroyed, or stolen ? Are we to hold that payment of the tax cannot be made, and that the paper is irrecoverably gone as an instrument of evidence, and no evidence secondary or otherwise can be given of its contents? We think not, and are of opinion that a substantial copy, or such draft of the instrument as will identify the subject of the tax, can be used to enable the party to avail himself of the remedial benefit of the law. The law has provided its own officer to superintend the performance of the duty, and protect the interest of the government; and he having sanctioned the copy and payment upon it, we ought not to deprive the citizen of the benefit intended for him. The United States have received their dues, and now the instrument is so restored to competency that secondary evidence of its contents should be received. We think no error was committed in receiving it.

In regard to the exception in the Act of 1874, that no right acquired in good ’ faith shall in any manner be affected by such stamping as aforesaid,” we may add, that the plaintiffs are not within it. They are mere volunteers upon whom the law casts the title of Mrs. Howd, if she had any at the time of her death. Having no estate remaining in her, none descended to them; or if it came to them ad interim, it cannot be said they acquired it in good faith, in the sense of the act. They gave nothing for it, and at her death they merely stood in her place, and could take no more than she had. The stamping being good as to her, it is good as to them. These views dispose of the entire case, for the deed being valid, in respect both of its acknowledgment and the stamp duty, the defendant is protected in his possession. Judgment affirmed.


author: Per Curiam. —

text:
    Lane’s Appeal.
    A majority of the creditors of B., an insolvent, signed an agreement with him by which he was to assign all his property for the benefit of the creditors who signed the agreement. The agreement was to be void unless signed by all of his creditors. An assignment was duly made, but was not recorded within thirty days. H. and M., creditors who did not sign the agreement, and McB., who did, obtained judgments and levied on and sold the personal estate in the hands of the trustees under the assignment. There was no evidence that McB. had done anything to estop himself from claiming against the assignment. The court below awarded the fund raised by the sale to IT., M. and McB. according to priority: Held not to be error.
    June 8th 1876.
    Before Agnew, C. J., Mercur, Paxson and-Woodward, JJ. Sharswood and Williams, JJ., absent. Gordon, J., did not sit in this case.
    Appeal from the Common Pleas of JSlh county: Of January Term 1876, No. 124. Certified from Eastern District.
    This was an appeal by N. B. Lane from a decree of the Court of Common Pleas distributing the proceeds of the sale of the personal property of H. M. Brockway.
    The facts as they appeared before the auditor appointed to distribute the fund in court were as follows :—
    Brockway, who was the owner of a large lumber establishment in Elk county, became insolvent. A number of his creditors signed an agreement with him on November 10th 1873, that he should make an assignment to Lane and three others of his creditors for the benefit of all his creditors. The condition of this, agreement as expressed therein was that all of Brockway’s creditors should sign it; a large majority of the creditors, and among them one McFarlin, signed it; the latter did so with the understanding at the time of signing that the agreement should be void unless all the creditors’ signed it. It appeared that other creditors had signed the agreement only upon that understanding. It was not signed by all the creditors of Brockway. In pursuan'ce thereof, Brockway, on December 20th 1873, made an assignment of all his property for the benefit of those of his creditors who had signed the agreement to Lane, the appellant herein, and three other creditors ; this assignment recited the agreement of November 10th and was based upon it; it was not recorded till January 29th 1874. The trustees therein named carried on Brockway’s business, expending some of their own money and incurring personal liabilities for that purpose. In February and August 1874, Holes and Moore, two creditors of Brockway, who had not signed the agreement of November 10th, obtained judgment against him ; and in September 1874, McFarlin also obtained a judgment. Executions were issued upon all of these judgments and levied upon the personal property in the hands of the trustees. It appeared that a part of the lumber levied upon and sold had been manufactured by the trustees, after the assignment, out of logs that had belonged to Brockway.
    ■ It did not appear that McFarlin, beyond his signing the agreement of November 10’th 1873, had had anything to do with the assignment or with the carrying on of the business by the trustees. An ex parte deposition tending to show that he knew that the trustees were carrying on the business and that he had worked for them, was taken more than a month after the case was argued in the court below and filed on the very day that judgment was rendered in that court. The auditor awarded the fund raised by this sale first to the payment of wages, and secondly to the payment of the above judgments according to their priority. His report was confirmed by the court below and a distribution was ordered in accordance therewith.
    From this order Lane, for the trustees and creditors, appealed.

      Jenlcs ¿f* OlarJc, H. M. Powers and Gordon S¡~ Corbett, for the appellant. —
    The assignment was on record when McFarlin obtained his judgment, and he therefore had constructive notice of it. Recording was not necessary to give validity to. the assignment. It was directly to the creditors. McFarlin acquiesced in the assignment and- cannot now claim against it: Guitterman v. Landis, 1 Weekly Notes 622; Lebanon National Bank’s Appeal, Id. 627.

      Hall and MoGauley, for the appellees. —
    The assignment was within the Act of 24th March 1818, § 5; Chaffees v. Risk, 12 Harris 432. There was no evidence to create an estoppel against McFarlin. The deposition printed in appellant’s paper-book was never before the court below: Beaupland v. McKeen, 4 Casey 124 ; Commonwealth v. Moltz, 10 Barr 533. He is not estopped by having signed the agreement of November 10th 1873, which was clearly conditional.
   The judgment of the Supreme Court was entered, October 10th 1876,

Per Curiam. —

The condition in the agreement of 10th November 1873, and the trust character of the assignment for the benefit of creditors of the 20th of December 1873, made in pursuance of the agreement of the 10th of November 1873, prevented these instruments from standing in the way of execution creditors, who chose to levy and sell the property of N. M. Brockway. The property was levied and sold by the sheriff by virtue of the execution of other creditors beside James McFarlin, who had not become bound by the agreement of November 10th 1873. The sale was not disputed, so that in this proceeding the distribution to the execution of McFarlin cannot be questioned, unless he is barred by estoppel from coming in upon the fund. But there is no evidence that he either knew of or participated in the proceedings of the trustees named in the deed of assignment, or did any act to estop himself. We perceive no error in 'the decree, and it is therefore affirmed with costs; and the appeal dismissed.


author: Mr. Justice Mercur

text:
    Jackson, to use of Hoffa, versus Morter.
    1. A court has power to strike off the acknowledgment of a sheriff’s deed and set aside a sheriff’s sale for fraud, if application be promptly made, where the deed has not been delivered.
    2. A sheriff’s deed was acknowledged September 24th 1874; on March 30th
    1875, two terms of the court having intervened, a rule was taken by the defendant in the execution to strike off the acknowledgment and set aside the sale, on the ground of fraud on the part of the purchaser; the deed had not been delivered; the court below made the rule absolute : Held, that the application was not too late.
    3. Where a waiver of inquisition was obtained by fraud upon the defendant, but the latter, though knowing all the facts, was present at the sheriff’s sale of his property, and allowed the sale to be made and the deed to be acknowledged : Held,, that in proceedings to avoid the sale he was estopped to set up the fraud practised upon him.
    4. A purchaser at sheriff’s sale who makes fraudulent statements as to fixed encumbrances upon the property to be sold, whereby others are dissuaded from bidding and he obtains it for less than its value, is guilty of fraud for which the court may set aside the sale.
    June 8th 1876.
    Before Agnew, C. J., Mercur, Gordon, Paxson and Woodward, JJ. Sharswood and Williams, JJ., absent.
    Error to the Common Pleas of Sullivan county: January Term 1876, No. 126. Certified from Eastern District.
    This was a writ of error taken to an order of the court below making absolute a rule to show cause why the acknowledgment of a sheriff’s deed should not be stricken off and a sheriff’s sale set aside.
    The following are copies of the two notes in which the proceedings originated:—

      “$70.85. Dushore, Pa., December 27th 1871.
    One day after date, for value received, I promise to pay to Jackson Brothers, or bearer, the sum of seventy dollars and eighty-five cents, with interest, without defalcation or stay of execution; and I do hereby confess judgment for the same, with costs of suit, and waive the right of inquisition or appeal and all the exemption acts of the state of Pennsylvania.
    Witness my hand and seal.
    his Volentine X Morter, [seal.] mark
    Witness:
    Hugh Prislin.”
    “$112.58. Dushore, Sullivan county, Pa., June 23d 1874.
    One day after date, I promise to pay George D. Jackson & Co.,, or bearer, one hundred and twelve and 58-100 dollars, with interest, for value received; and I do hereby confess judgment for the above sum with costs, waiving the right of inquisition, stay of execution and all exemption laws.
    Witness my hand and seal.
    his > Volentine X Morter, [seal.] mark
    Witness:
    Levanah Morter.”
    Judgments were entered upon these notes on December 30th 1871, and June 28th 1874, respectively; on August 15th 1874, both judgments were marked to the use of Jacob Hoffa. Writs of fieri facias were issued on both judgments to September Term 1874, and under them certain real estate of Morter was sold by the sheriff on September 22d 1874, for $545, to Jacob Hoffa. Upon the day after the sale a sheriff’s deed was executed and acknowledged in open court. A rule of court provided, that before the acknowledgment of a sheriff’s deed, “the process under which the sale shall have been made shall be duly returned and filed with the prothonotary.” It appeared, however, that the above writs of fi. fa. were not returned till after the acknowledgment of the deed. It did not appear by the record that the deed had ever been recorded or delivered to Hoffa. On the day of the acknowledgment of the deed, the court appointed an auditor to distribute the fund in court arising from the sale. On December 15th, proceedings for distribution were stayed, and on December 18th 1874, the court granted a rule to show cause why the judgment should not be opened and the defendant let into a defence, and the sale of the property set aside. This rule was afterwards discharged.
    On March 30th 1875, the court, on petition of Morter, granted the rule on Hoffa upon which these proceedings are based, to show cause why the sale should not be set aside and the acknowledgment of the sheriff’s deed stricken off. The grounds upon which'the rule was taken were: fraud in procuring the waiver of inquisition and fraudulent representations made by Iloffa which deterred persons from bidding at the sale ; as to the first ground the facts tending to prove fraud in procuring the waiver of inquisition are unimportant, as Morter was held to be estopped from setting them up in avoidance of the sale. The facts creating the estoppel appear fully in the opinion of the court.
    As to the other ground taken, there was contradictory evidence in the depositions. There was evidence that two weeks before the sale and also at the time of the sale, Iloffa had made statements to various persons that whoever bought the property at the sale would be obliged to support Michael Morter during his lifetime and to pay a sister of V. Morter $100. Hoffa denied making any such statements. A witness also testified that he was a bidder at the sale for $540, and would have bid $1000, had it not been for the above statements of Hoffa to him. The court below was of opinion that fraud on Hoffa’s part was established by the proofs, and this finding was accepted by this court as a fact.
    The court below (Ingham, P. J.) made the rule absolute, being of opinion that it was within the discretion of the court to strike off an acknowledgment not made in accordance with the rules of court; that the waiver of inquisition was obtained by fraud, and was therefore void as to Morter; and that the purchaser at the sheriff’s sale had obtained the property at a low price by fraudulent representar tions made at and before the time of the sale.
    To this judgment of the court below, Hoffa took this writ of error, and assigned for error in substance that the court erred in striking off the acknowledgment of the sheriff’s deed, and setting aside the sale.

      Dunham, Thompson and De Witt $ Maynard, for the plaintiff in error. —
    The acknowledgment of the deed cured the irregularity in not returning the writ: Shields v. Miltenberger, 2 Harris 76. In Hope v. Everhart, 20 P. F. Smith 234, the waiver was by a lunatic. The court below had only power to grant an issue to try the question of Hoffa’s fraud. Morter could try the question in ejectment: Hilbert v. Hoffman, 2 Watts 66. Hoffa has paid his money for the land, and it has never been tendered to him again by Morter; if the judgment is sustained, he is without remedy.

      A. Logan Cfrim, for defendant in error. —
    Hoffa did not ask an issue in the court below; even when demanded, it is a matter of discretion. There is no evidence that Hoffa has paid the purchase-money ; being a judgment-creditor, the presumption is that it was credited on his judgment. If he has paid his money, he can recover it from the sheriff; if not, he can proceed, as before, on his judgments.
   Mr. Justice Mercur

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

All the assignments of error relate to the power of the court to strike off the acknowledgment of a sheriff’s deed and set aside the sale. That it possesses the power under some circumstances cannot be questioned. It naturally flows from the right to supervise the acts of its officer, and to amend its own records.

On what grounds and within what time the power may be exercised, presents another question. That the court may, for sufficient cause, set aside the sale before the deed has been acknowledged, is very clear. That it may exercise a like power after acknowledgment, but at the same term, appears to be conceded by the authorities. Whether it may, after the term at which the deed was acknowledged, and after being duly recorded and delivered, does not appear to have been distinctly ruled by this court. In fact, the cases declaring the legal effect to be given to the acknowledgment of a sheriff’s deed are not in entire harmony. This is shown by Mr. Justice Bell, in Shields v. Miltenberger, 2 Harris 76. He therein reviews the authorities, and follows the case of Crowell v. Meconkey, 5 Barr 168. It was therefore held that the acknowledgment not only cured all irregularities in the process and sale, but that it had a curative power operating beyond such defects. In McFee v. Harris, 1 Casey 102, it was said: “ After acknowledgment of the sheriff’s deed in open court, the title of the sheriff’s vendee cannot be affected by mere irregularities, however gross. Nothing but fraud in the sale, or want of authority to sell, can defeat his title.” In Crowell v. Meconkey, supra, and in Michell v. Freedly, 10 Barr 208, it was held that where a sheriff’s sale was confirmed without objection, and the proceeds had been applied to the debts of the defendant, it had the same effect as if paid to the debtor, and would estop him from denying the validity of the sale. So, in Spragg v. Shriver, 1 Casey 282, it was held that where real estate had been sold by the sheriff without a regular condemnation or waiver of inquisition, the defendant must object within a reasonable time, and such reasonable time was before the confirmation of the sale and the acknowledgment of the sheriff’s deed to the purchaser. These cases, however, were actions of ejectment. The question was as to the validity of the title acquired by the purchaser at sheriff’s sale. They did not necessarily determine the causes for which the court might set aside a sheriff’s sale, nor the time within which the equitable powers of the court may thus be exercised.

The decision of a Court of Common Pleas confirming a sheriff’s sale and ordering a sheriff’s deed to be acknowledged is not the subject of a writ of error; it is an act which belongs to the discretionary powers of the court below: Rees v. Berryhill, 1 Watts 263; Sloan’s Case, 8 Id. 194. Where, however, the title of the purchaser has been fully confirmed, when the term has passed and the deed has been recorded and delivered, a different case is presented ; all irregularities and minor defects have been waived or cured. If want of power to sell, or gross fraud in the sale, is alleged, the purchaser has a right of trial by jury. In Chadwick v. Patterson, 2 Phila. R. 275, Mr. Justice Sharswood said: “It is exceedingly doubtful whether the court has any power over a sheriff’s deed after it has been acknowledged. We have vacated such an acknowledgment, at the instance of the purchaser, where he has produced the deed itself and delivered it up to be filed and cancelled.” In Stephens v. Stephens, 1 Phila. R. 108, it was held, in an opinion given by Mr. Justice Lowrie, that it is no objection to the setting aside a sheriff’s sale, where the deed is still in the hands of the sheriff, ’that a term has elapsed since the acknowledgment of the deed. While these are not the decisions of this court, yet the learning and experience of the judges who deliver the opinions give great weight to their conclusions. Much must depend on whether the sale or acknowledgment was made through fraud, and with what promptness the application is made, to avoid the sale.

In this case the deed was acknowledged at the September Term. On the 30th March following, the rule was granted to show cause why the acknowledgment should not be stricken off, and the sheriff’s' sale be set aside. The December and February Terms had intervened. It is true, at the December Term a rule had been granted to show cause why the judgment should not be opened, the defendant let into a defence and the sale be set aside. At the February Term that rule had been discharged. The last rule was no continuation of the former, although it covered a part of the same ground. It is not shown do have been based on the same alleged facts. We have not been furnished with a copy of either affidavit on which a rule was granted. The opinion of the court, and the depositions, show the grounds on which the acknowledgment was vacated and. the sale set aside. One is for alleged fraud in procuring the waiver of inquisition in the judgment note; the other for fraudulent representations, which deterred persons from bidding at the sheriff’s sale. Neither opinion nor deposition shows that the deed had been delivered before the rule was granted. The purchaser appears to have had possession of it, when the depositions were afterwards taken. In his paper-book, the plaintiff claims a previous delivery. This is expressly denied by the defendant. In the absence of, all proof, we cannot assume a previous delivery.

We will not review the conclusion of the court as to the weight of the evidence, but will look at it to ascertain the ground of their action. Morter swears that he was present at the sheriff’s sale; that within five or or ten minutes after the sale he knew it was purchased by Hoffa.

The record showed the waiver of inquisition. Morter knew at the time of the sale all the facts bearing on the execution of the note in which the inquisition was waived. Yet he gave no notice. He made no objection. He suffered the sale to proceed. He had full opportunity then to object to the proceedings, and again before the deed was acknowledged. He remained silent when he ought to have spoken. He is, therefore, now estopped from setting up in avoidance of the sale the alleged fraud in the execution of the note. The authority of Hope v. Everhart, 20 P. F. Smith 234, relied on by the defendant in error, was very much shaken, if not substantially overruled, by the case of Hageman et al. v. Salisberry, 24 Id. 280. Yet, if it had not been, it in no wise prevents the application of the doctrine of estoppel. The learned judge, therefore, erred in holding that this portion of the case entitled the defendant to relief.

The remaining ground is the alleged fraudulent representations of the plaintiff whereby persons were dissuaded from bidding. This allegation was controverted; yet the court found it to be true. The averment thereof gave the court the right to inquire into the fact. We will not review the correctness of the conclusion. We assume it to be correct. If correct, it was undoubtedly a sufficient ground for setting aside the sale, if the application was made in time. Was it so made ? The record stops with the bare acknowledgment of the deed. It is not shown to have been either recorded or delivered. Nor is it shown that Morter did not act with promptness, after obtaining a knowledge of the facts preventing a fair sale. When the rule was granted, the title of the purchaser had not been fully perfected, as the deed remained in the hands of the sheriff. Such being the case, we cannot say that it was too late for the court to inquire into the legality of the sale. In so inquiring it might consider the fact that the acknowledgment had been taken in violation of its rule. The mere fact however that the writ had not been returned at the time, is insufficient to destroy the validity of the sale; that omission may be cured by an acknowledgment of the deed in open court, reciting a sale under the writ. The correct and better practice undoubtedly requires a return of the writ on which the sale was made; yet when the power of sale exists, and the sheriff has set forth in his deed the manner in which he has executed the writ, and the court accepts the acknowledgment and confirms the sale, the title passes to the purchaser: Gibson et al. v. Winslow, 2 Wright 49. We see no sufficient ground to reverse the judgment.

Judgment affirmed.


text:
    Hoffa versus Morter. Hoffa’s Appeal.
    June 8th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Court of Common Pleas of Sullivan county: Of January Term 1876, No. 127. Certified from Eastern District.
    Appeal of Jacob Hoffa from a judgment making absolute a rule taken by the above defendant to show cause why the acknowledgment of a sheriff’s deed should not be stricken off or the sale set aside. The facts appear in Jackson, to use, v. Morter, supra.

   Mr. Justice Mercur

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

As an appeal does not lie from the judgment of the court setting aside a sheriff’s sale, the appeal is dismissed.


text:
    The Contested Election of Edwin R. Wheelock.
    1. At an election for the office of county commissioner, the county eommissioners did not furnish a correct copy of the resident taxables to the officers of election in one of the election districts, as required by sect. 3 of the Act of January 30th 1874: Held, that this was not ground for setting aside the entire poll.
    2. At the same election, in another district, the election was not held at the place fixed by law and designated in the sheriff’s proclamation, but at a place forty rods distant therefrom: Held, that the irregularity was immaterial under the circumstances, as its correction would not change the result of the election.
    June 8th 1876.
    Before Agnew, 0. J., Mercur, Gordon, Paxson and Woodward, JJ. Sharswood and Williams, JJ., absent.
    Certiorari to the Quarter Sessions of Warren county: Of January Term 1876, No. 226. Certified from Eastern District.
    These were proceedings begun by John F. Davis and twenty-five other qualified electors of Warren county to contest the election of Wheelock to the office of county commissioner.
    The petition set forth that the officers of an election held November 2d 1875, had returned 1904 votes as cast for Wheelock, and 1854 votes for Darius Mead, and that the election was illegal, (1) because “ in the election district of Pine Grove the election was not held at the house of John Russell, the place fixed by law and designated in the sheriff’s proclamation, but was in fact held at a place forty rods distant therefrom, to wit, at the school-house in the village of Russellsburg; ” (2) because “at the said election held in the district of Freehold, there was no copy of the corrected assessment as furnished by the assessor of said district to the commissioners of said county, containing the names of all persons returned by the said assessor as resident taxables in said election district, present at said election; nor was there any registry of voters present at the same, whereby the names of the resident taxables and voters of said district could be ascertained.”
    The petitioners further averred: “ That, for the reasons specified in this petition, the votes in the said election districts of Pine Grove and Freehold ought to be rejected and not counted, which would give to the said Darius Mead 1724 votes and the said E. R. Wheelock 1609 votes for the office of county commissioner.”
    The court below (Wetmore, P. J.) thereupon granted a rule upon Wheelock to answer the petition. Before the hearing of this rule, counsel for Wheelock moved to quash the petition, (1) because the facts set forth in it were insufficient in law to justify the setting aside of the entire poll, or in any way to change the result as returned by the election board, there being no allegation that any person voted at said election who was not duly registered as required by law or that any person was illegally prevented from voting, or that there was any fraud or mistake in the manner of holding the election; (2) because the alleged illegality in the district of Pine Grove was not sufficient of itself to change the result of the election. The court granted a'rule to show cause why the petition should not be quashed and afterwards made this rule absolute.
    The following opinion was delivered:—
    “ The question presented by the petition is, whether the fact that no copy or list of the resident taxables and voters was present at the election board on the day of election makes the election void, and requires us to set aside the entire poll.

      “ The first and second sections of the Act of 30th of January 1874, directs the mode of completing the list of taxables, and describes the duties of the assessors and county commissioners in connection therewith. The third section of the same act requires the county commissioners to make a full and correct copy of the resident taxables in each election district, and to furnish the same, together with the necessary election blanks, to the officers of the election in such election district, on or before seven o’clock of the morning of the election. * * * *
    “ It is a general rule that, when a person is required to do an act, the not doing of which would make him guilty of criminal neglect of duty, if shall be intended that he has duly performed it: Broom’s Legal Maxims 913. We therefore presume, in the absence of evidence to the contrary, that the election was duly held at the time and place fixed by law, and by the proper officers, who were duly qualified, and that the persons voting were legal voters in the election district.

      “An election is the embodiment of the popular will, the expression-of the sovereign power of the people. When the application of technical rules and a strict construction of the acts of the officers, in preparing the election papers and conducting an election, would tend to defeat the will of the people and change the result of an election for an important office, they should not be applied, and all reasonable intendments should be made in favor of the legality of their proceedings. When, however, it is alleged that there is actual fraud in the election, or that the ballot-box has been tampered with, or illegal votes received, or the careless or fraudulent acts of the officers have mixed and confused the ballots, the duty of the court is equally plain, and every legal facility should be afforded to purge the poll; and when the acts of the officers are so frandulent and irregular that the result cannot be ascertained, then the entire poll is rejected. These are substantially the conclusions of the judges in the-contested election cases in Philadelphia in 1845, 1850 and 1858, reported in 2 Pars, and 1 and 2 Brewst.
    “The State Constitution, art. 8, sect. 1, gives to every citizen possessing the qualifications prescribed, the right to vote, and section 7 of the same article provides that no elector shall be deprived of the privilege of voting by reason of his name not being registered. To disfranchise all the voters of a township, as we are asked to do in this petition, the facts on which we are required to act should show a case free from legal doubt. If we, by our decision, should permit the carelessness or even the fraud of officers whose duty it is to furnish a list of voters at the election, to defeat the election and deprive the people of the oounty of the officer who was elected by a majority of their votes, we would thus make the people suffer for an act in which they did not participate, and which they did not sanction. In so doing, instead of punishing an officer for the violation of the election law, we practically punish the voters of the county by defeating their choice of a county officer as declared at the election. A decision of this kind would be fraught with danger, by inviting unscrupulous or unprincipled persons, on the eve of an important election, to secrete or destroy the list of voters or other important papers in a township in which the majority may determine the result in the county. Buies applicable to contested elections, like other legal rules, must be uniform, and the results and consequences of decisions therefore determine their correctness.
    “ But few cases of contested elections have received a construction in our Supreme Court. In Melvin’s Case, 18 P. F. Smith 383, Thompson, C. J., referring to the powers and duties of the court to strike out the vote of an election district, says: “ This ought not to be done when a legal election as to time and flace is held, although fraudulent votes have been received. The remedy in such case is to purge the polls by striking out the fraudulent votes if possible. In 1 Brewst. 176, it appeared from the evidence, that in one case the minority inspector was overawed, and the list of assessed voters taken from him, and the requirements of .the law in receiving the ballots were to a great extent disregarded. There was nothing to show that the voters not on the list were qualified according to law, and a large number of such votes Avere received. Still the entire poll was not rejected, and each contestant was allowed to prove his legal vote, to be counted for and credited to him, in the final computation.
    “ The irregularity in the election district of Pine Grove is not deemed material in our conclusions, as its correction would not change the result.
    “ The rule to show cause why the petition should not be quashed is made absolute.”
    The petitioners sued out this Avrit of certiorari, and assigned for error the quashing of their petition.

      R. Brown and Q. Binsmore, for the contestants. —
    The Act of 30th January 1874 provides for a register of voters, and that “ no man shall be permitted to vote * * * whose name is not on said list, unless,” &c. This is imperative and not merely directory: 1 Brewst. 173; Mann v. Cassidy, Id. 61; 2 Id. 29, 25. The officers in the Freehold district entirely disregarded this provision. In Melvin’s Case, 18 P. F. Smith 333, it was held that a Avhole election district may be stricken out on showing an entire disregard of conformity to law in holding it either by design or ignorance. It is begging the question to presume that the commissioners or the officers of election did their duty; their failure to do it is the gist of this complaint. The question as to Pine Grove district is ruled by Melvin’s Case, supra.

      Johnson Lindsey and OlarJc ¿> Noyes, for Wheelock.—
    Unless a petition sets forth such facts as Avould change the result, the court will not entertain it: Carpenter’s Case, 2 Pars. 540; Skerrett’s Case, Id. 518. It must state specifically sufficient facts: Skerrett’s Case, supra. The alleged irregularities in Pine Grove are not in themselves enough to change the result. The only irregularity alleged in Freehold is that the register was not present at the election, and that the proof was not required of voters as if they were non-registered voters. In the absence of any allegation, it must be presumed that the officers did their duty: Carpenter’s Case, supra ; there being no allegation of fraud, it must be presumed that everything necessary was done in this ease, and that the absence of the registry was due to accident or honest mistake. Can all the voters be disfranchised in this way ? They could not have voted upon affidavit, for that only applies to non-registered voters; nor in that view would there have been any qualified voter to have vouched for the first non-registered voter. “ An entire poll will only be rejected when, by fraud or gross negligence, it is impossible to reach certainty Melvin’s Case, supra ; Cont. Elect. of 1868, 2 Brewst. 37, supra; Boileau’s Case, 2 Pars. 505; Skerrett’s Case, Id. 514. The duty of having the registry present at the election is directory: Weaver v. Given, 1 Brewst. 145; Penn. District, 2 Pars. 533. If the voters were registered no other proof of their right to vote was required: Marks v. Parke, Quarter Sessions of Yenango county, MS. opinion of Trunkey, P. J.
   The judgment of the Supreme Court was entered, October 10th 1876,

Per Curiam. —

We discover no error in this case. The grounds sustaining the election of Edwin R. Wheelock are sufficiently stated in the opinion of the court below.

Proceedings affirmed.