already made is the proper one. A dis in the same district, is not void as against tribution among the heirs in the State of Pennsylvania cannot be made while there are unpaid creditors in the State of the domicile. No rule of comity or judicial discretion for the protection of our own citizens require this. If it should be found that there are no unpaid creditors in the State of Maryland, then the distribution of the balance public policy, and cannot be abrogated [Extract from the cover of the Circuit among those legally entitled thereto, as Court Docket sitting for York County, indicated above by the statutes of Mary- Pennsylvania, from September 17, 1782, land, will be made here, after ascertain- to March Term, 1809.] ing who are the persons entitled thereto. "Non Sivi, Sed Omnibus." "Obituary." The credits for tombstone and counsel fees have been shown to the auditor, the "Died on the 11th March, 1809, at one to have been paid and the other rea- Lancaster, after a short illness, in the sonable. For this reason, the first two 27th year of its age, the Circuit Court of exceptions filed on behalf of Nathaniel Pennsylvania. It had long been buffeted Bortner and others are dismissed, and by the iron hands of Faction, and althe third and fourth are also dismissed though it had always previously trifor reasons contained in the preceding umphed over its enemies yet on this fatal opinion. day the powerful mass of ignorance and folly which it encountered brought on a dropsy in the brain, which caused an The first and second exceptions filed on behalf of George Ehrhart, the accountant, are dismissed, and the third and fourth exceptions are sustained. The additional exceptions presented at argument and filed by leave of Court, in reference to the costs of audit, are dismissed. These costs were made necessary by the accountant's efforts to secure a larger portion of his wife's estate than he was entitled to, and, therefore, in justice and good conscience, he ought to pay them. The Auditor's report filed September 5, 1904, is recommitted to the Auditor to ascertain the facts specified in this opinion, and make a distribution in accordance with the law as applicable to the facts as so found. Abstracts of Recent Decisions. (Cases not otherwise designatea are Supreme Court cases.) Elections Nominations- Agreement between counties.—An agreement entered into by the representatives of a political party from two counties forming a congressional district that nominations for Congress shall be conceded first to one county and then to the other, as long afterwards as the two counties are united immediate dissolution. The remains were attended to the place of deposit in large concourse of the weeping faculty." the Legislative Hall in Lancaster by a "Pulchrum Est Benefacere Reipublica." [A Philadelphia lawyer, after partaking of the York County Bar Association's annual banquet, perpetrated the following:] Good wishes all! Broset neue Jahr! 'Tis true that all the flowers If kept from the Bar's nose; Broset neue Jahr! Says to the whole York Bar [wise Broset neue Jahr! Work Legal Record. exceptions were filed to the proposed in Vol. XVIII. THURSDAY, JAN. 26, 1905. QUARTER SESSIONS. Incorporation of Windsor Borough. Boroughs-Incorporation-Hearing. No. 35. corporation; and on August 29, 1904, a petition numerously signed by residents of the territory proposed to be incorporated against the incorporation, and praying to be heard in objection thereto. The last day for the setting down of cases for the next Argument Court after August 29th was August 27th, so that the exceptions, which go mainly to the Petition for incorporation of a Borough was filed July 11, 1904, and advertised for the next question of notice, could not be set down term of Quarter Sessions, being August 29, for the September Argument Court, nor 1904. On August 26, 1904, exceptions were filed, for any Court earlier than the December and on August 29, 1904, a petition signed by a Argument Court, at which they were large number of the inhabitants of the proposed heard. In the meantime the October borough, objecting to the incorporation. The exceptions could not be set down for the Sep- Term of Quarter Sessions Court' intertember Argument Court, as the last day had vened, and nothing was done and no expired, and they were put on the December action taken at this October Term of the list. Nothing was done in the matter at the October Sessions. HELD, that the proceedings Court of Quarter Sessions. must be dismissed. According to our rule for setting down exceptions and such matters as involve the argument of questions of law, the exceptions were set down in regular order for argument at the earliest time at which they could be set down and heard. It was agreed by counsel for the respective petitioners and objectors at the argument of these exceptions that the questions of fact as to the expediency of The hearing must be had at the term for incorporation should not be passed upon which the notice is given, and in the absence of then, but might be heard at another such hearing at such term, the cause may be continued from term to term until such hearing time, if the exceptions should not be sus is had, but these must be actual continuances, and these must be shown by the record, or what is equivalent thereto. Where no such hearing was had, and no continuance taken, the parties interested had a right to assume that the proceedings were dead and would not be resuscitated at a later term. Proof of the publication of notice of the propos d incorporation may be made at any time prior to final hearing. Exceptions to proceedings. tained. One of the questions raised by these exceptions is that the report does not show that notice of the proposed incorporation was given as required by law and the order of the Court. At the argument, the counsel for the petitioners for the incorporation proposed to file an affidavit and copy of the notice as published in the York Gazette from July 26th to August 27th, 1904. Sundays excepted, showing the publication of the notice as required by the order of the Court and the law, and so as to put upon the record proof of the publication and a copy of the notice. This was objected to by the counsel for the exceptants. December 31, 1904. STEWART, J.The petition for the incorporation of the Borough of Windsor was filed in the Court of Quarter Sessions on July 11th, 1904, and the Court ordered "that notice The Act of June 26, 1895, prescribing of the filing of this petition be given in this notice, does not require in terms that the York Gazette for a period of not less proof of the publication of the notice shall than thirty days immediately before the be filed. It may be shown as a matter next regular term of said Court, being of evidence at the hearing when a full August Term, 1904." The next term investigation is made by the Court, and of August Term began on Monday, Au- when it is required by said Act to see gust 29, 1904. On August 26, 1904, that all the conditions prescribed by law have been complied with. There can be no injustice done, therefore, by allowing the proof of notice to be filed at this time, or at any time prior to the final hearing. The affidavit with the copy of notice published is, therefore, allowed to be filed. A more serious question is whether or not the Court has lost jurisdiction of the matter by reason of the failure to have the full investigation required by law at the August Term of the Court; and the case of Linton Borough, 5 Super. Ct. 40, is pointed to as deciding this question in favor of the exceptants. make this "investigation at said term." In this instance this was not done at the August Term and the October Term following came and went and no order continuing the cause was made. In Linton Borough, cited supra, the Court said: "And when the September Term passed without any hearing by the Court or the Grand Jury and without an order continuing the case, they (the persons interested) had a right to presume that the resuscitated at some succeeding term." proceeding was dead and would not be In commenting upon this case, the same Court, in Leetsdale Borough, 25 Super. It may he said that the proper legal Court 623, said: "As we understand notice was given to all persons interested that case, it was not acted upon at the and those who saw fit to do so have come September Sessions. and that is the pith into Court in pursuance of said notice of the decision. * * * * It is argued and either excepted to the proceedings that no order was made continuing the or petitioned against the incorporation. proceedings, and the next regular term Are they still in Court? No other or to which the petition was presented was additional notice is required to be given allowed to pass and no order made until them. When once in Court, they are the next regular term succeeding the Sepbound to take notice of the usual and tember Sessions. * *** There ordinary course of the proceedings which brought them into Court. In a matter of private concern, this would seem to be sufficient. When parties have been brought into Court by a summons or statutory notice on a matter of private" If the hearings in proceedings to inlitigation they are bound to take notice of the usual and ordinary course of proceedings. But this is not a private litigation. The Court has a public duty to perform which no action of a portion of the community, no matter how large, can excuse it from performing; Linton Borough, 5 Super. Court 36. would be merit in this contention if it were true that the September Sessions passed without the case being called up.” Again, it was said in the incorporation of Wayne Borough, 12 Super. Court 368, corporate boroughs are upon reasonable grounds, regularly adjourned from time to time by the Court, the spirit of the Act is complied with, the purpose of legislation being to give all persons interested an opportunity to be heard, and to know when hearings are being held." The rule then to be deduced from all these cases is that the hearing must be had at the term for which the notice is given, and in the absence of such hearing at such term, the cause may be continued from term to term until such hearing is had, but these must be actual continuances, and these must be shown by the record, or what is equivalent thereto. The Act of June 26, 1895, provides that the petition for incorporation shall be filed with the Clerk (of the Court of Quarter Sessions) and notice thereof shall be given in one newspaper of the proper county for a period of not less than thirty days immediately before the next term following the presentation of such application and the filing thereof, during which time exceptions may be No such continuance having been had filed to such application by any person in- at the October Sessions in this case, the terested, and the Court at said term, after parties interested had a right to assume full investigation of the case, if it shall that the proceedings were dead and would find that the conditions prescribed by law not be resuscitated at a later term. have been complied with, and shall believe it expedient to grant the prayer of the applicants, shall grant the same and make a decree accordingly. The first exception to said petition and proceedings is sustained and the petition and proceedings thereunder quashed and It will be observed that the Court shall set aside. Road in York Township. Road Law-Notice-Oath. Where notice of the proposed view was not given to each of the Supervisors of the township through which the road is to run, the report must be set aside. One of the viewers administered the oath to himself and the other viewers. HELD, that the report must be set aside. Exceptions to road report, STEWART, J.-Several exceptions are filed to this report; the first, however, is sufficient to set it aside. face how this was done. Manifestly it is not regular when the return shows it was incorrectly done. It is not worth while to consider the other exceptions-the first being fataland which is sustained and the report set aside. Road in Shrewsbury Township. the Supervisors of the township is defective, Exceptions to report. Jno. A. Hawkins for exceptions. The Act of May 2, 1899, P. L. 176, provides that in road proceedings "looking to the opening and construction of new roads for public use, it shall be the duty of the parties making the applicaDecember 19, 1904. STEWArt, J.tion for such road, to give written notice Two exceptions are filed to this report, to the Supervisors of the territory through both to the same effect, namely, that ten which such new road is designed to be laid out and constructed, of the time and to the Supervisors of the township. days' notice of the view was not given place of any views, reviews, or re reviews therein, and a copy of such written noThe report shows that notice was tice properly attested shall be filed among served by the Constable on one of the the records of the Court having cog- Supervisors of Shrewsbury township, nizance of the matter, and a failure to through a portion of which the road is comply with the provisions of this Act laid out. An agreement of counsel has shall be sufficient grounds for an applica been filed admitting this to be correct, tion to set aside whatever proceedings and also that there are three Supervisors of said township. may have been taken of which said Supervisors had no written notice as aforesaid." The Act of May 2, 1899, P. L. 176, provides that in all cases where proceedings are had for the opening or construc The only notice filed in Court or with tion of new roads for public use, it shall the proceedings shows that notice was be the duty of the parties making appligiven to one of the Supervisors of said cation for such road to give written notice township, but to which one is not dis- to the Supervisors of the territory through closed. The notice returned with the which such new public road is designed record as having been given to the Su- to be laid out and constructed, to give pervisor is the ordinary notice required by rule of Court to be posted at the ter mini and along the route of the proposed road. This would be sufficient if a copy of it had been given to each Supervisor and a properly attested copy filed with the record. This was not done, and therefore the proceedings must be set aside. notice of the time and place of the views, reviews, and re reviews therein, and a copy of such written notice shall be filed among the records of the Court having cognizance of the matter, and a failure to comply with the provisions of this Act shall be sufficient grounds for an application to set aside whatever proceedings may have been taken of which said Supervisors had no written notice. This is peremptory and was not complied with in this case. The notice filed with the record shows a notice to only one Supervisor, and the agreement of counsel admits that there are three in the township. The exceptions are sustained and the proceedings set aside. Ownership of property found on convicts. There was found upon his person when he was committed to the jail the sum of $18.35 and certain articles, namely-hat pins, skirt, chatelaine bag and a ladies' purse. Frank S. Morris for motion. October 3, 1904. JOHNSON, P. J.This is a motion to quash the return of a magistrate on the ground that the defendant was deprived of the right to testify at the hearing. lows: "Defendant was arrested on a warThe return of the magistrate is as folrant and brought up for a hearing July 6th, 1904, by Constable Shinkle, charged upon the oath of James Mullen, who, being duly sworn according to law, deposes and says from information received by him and which he believes to be true, Walter Hackett did, on the 4th day of July, A. D. 1904, in the City of Chester, and County of Delaware, carry concealed deadly weapons, viz., one loaded revolver with intent to use the same. James Glennan, sworn; Isaac Leary, sworn. Defendant is held in the sum of $400 bail to appear at the next term of Court of Quarter Sessions of the Peace in and for said county to answer the charge preferred against him.-Robert Smith, Alderman." These, under our prison regulations, are now in the possession of the warden of the prison. The assignee of the prosecutor asks that the sum of money and It is undoubtedly true that the defendthe articles be turned over to him. There ant, who was arrested for carrying conis no proof that these articles were pur- cealed deadly weapons, could have testichased with the money stolen from Pack- fied before the magistrate had he so deard, nor that the money formed part of sired. There is, however, no evidence the sum taken from him. In order to that he made the request or that this make a successful demand for the money right was denied him. and articles Packard or his assignee must prove that the articles belong to Packard. This he has not done and therefore the petition cannot be granted. The identification of the goods or money as the property stolen is a sine qua non in this case. The petition is dismissed. I am not sure that if he made the request and it had been denied, it would have been a cause for quashing the return. It not appearing that the right. was denied him the return cannot be quashed. The case of Commonwealth v. Hughes, 1 Pa. Dis. Rep. 596, relied upon by the defendant is not in point. There the District Attorney without leave of Court charging a defendant who had been sent an indictment to the Grand Jury istrate to answer the charge of obtaining bound over after a hearing before goods under false pretenses, with forgery. mag. the ground that it had been sent to the The Court quashed the indictment on Grand Jury without leave of Court, and because the defendant not having the right to be heard before the Grand Jury had been deprived of his right to testify at the hearing. Motion overruled. |