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objection to the reading by the District S. H. Reynolds and Wm. S. Amweg, Attorney in his summing up to the jury Esqs., for appellees. from portions of the Pentateuch.

This was a bill in equity filed in the divine; and demonstrably by the natural Court below by the appellees, the facts of law; and from these prohibitions arises which are as follows: the true unlawfulness of this crime.

The society of Seventh-day Baptists of Upon these two foundations, the law of Ephrata, in Lancaster county, was incornature and the law of revelation, depend porated by Act of Assembly approved the all human law; that is to say, no human 21st day of February, 1814. This Act law should be suffered to contradict these provided, inter alia, for the election of -1 Blackstone's Commentaries, 42.

seven trustees, who were "to be elected The time will never come when the

on the first Monday of January in every Book of Books shall be excluded from our courts.

fourth year after the passage of the Act, IX. It is a constitutional right, of which at the town of Ephrata, in the county of the accused cannot be lawfully deprived, Lancaster.” An Act of Assembly was and which cannot be waived, to be met passed on the oth day of February, 1865, by his accusers face to face. Of this right reducing the number of trustees from John Coyle, Jr., the accused in this case, was deprived by the Commonwealth, in

seven to three. The sixth day of January that its prosecuting officer neglected or 1879, being the regular and appointed refused to bring Mrs. Annie Goodyear, time for holding the quadrennial election, nee Myers, who, by the records in the notice was posted on the “Saal,” or meetcause, appears to be the prosecutrix and ing house, that on that day between the accuser of the prisoner in this cause, face to face with them, by calling her to the

hours of 12 m.and 4 o'clock,p.m., an elecwitness stand, and allowing her to be in

tion would be held for trustees of the Sevterrogated on oath or affirmation touch- enth-day Baptists. Some of the members, ing the matter of the said accusation. dissatisfied with the management of the

This reason is framed in misapprehen- society, resolved on the election of a new sion of the facts. Mrs. Anvie Goodyear, board of trustees, and, as a result, two sets nee Myers, does not by the records in the cause appear at all in the list of witnesses of trustees, of three each, were returned endorsed upon the indictment, neither did as elected. she make the original or any information.

On the 18th of January, 1879, both sets, No reason has been presented, or ex

claiming to have been legally elected, preists in my opinion, for the arrest of judg. sented to the Orphans' Court, as required ment or for a new trial. Motion over

by the charter, the election returns with ruled.

certificates attached, together with their bonds prepared asking for the approval

of the same. The Court, after testimony SUPREME COURT.

taken and read, declined to approve either

of the bonds, Judge PATTERSON deliverMadlem's Appeal.

ing the opinion, but suggested that an

election be held to elect trustees “to fill Where there are two judges in a Court, and a decree is the vacancy that exists in the board of made by one which is disserted to by the other, the Court being thus equally divided no valid order or

trustees and which has occurred through decree can be made.

'inability to serve. Whereupon notice When no proper decree can be made by reason of the failure of the judges to agree, they have the power

was posted for an election to be held on to call upon a judge from another district to hear and the 7th day of July, 1879, when William decide the case.

Madlem, Lorenz Nolde and Jacob S. Cahill v. Beon, 6 Binney 99, distinguished.

Spangler were returned as elected. Appeal from the decree of the Court of The newly elected trustees filed their Common Pleas of Lancaster county, bond with sureties and asked the Court sitting in equity.

to approved the same. Testimony was

taken and read on the argument after H. M. North, E. K. Martin and T. which Judge PATTERSON delivered an B. Holahan, Esgs., for appellants. opinion approving the bona. Judge Liv

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INGSTON dissented and objected to the order for a perpetual injunction and the approval of the bond.

disposition of the costs. The new board of trustees, not getting To all this the President Judge, who control of the property, filed a bill in possess at least equal power, dissented. equity praying that the defendants be en- He had an equal right to enter a decree joined and restrained from taking part in embodying his own views of the case. any way in the management of the prop- We would then have had the unusual case erty, &c., of the society. A master was of conflicting orders issued out of the same appointed to take testimony and report, Court. To state such a proposition as whereupon he dismissed the bill of com- this is to answer it. plaint. The Court, upon exceptions to the The learned judge (A.L.J.) below was master's report, sustained the exceptions evidently misled by the case of Cahill v. and made the injunction perpetual. Judge Benn, 6 Binney 99. It does not sustain PATTERSON delivered the opinion, Judge his position. In that case there had been LIVINGSTON dissenting.

a trial at law and a verdict for the plainAn appeal was taken from this decree

tiff The defendant moved for a new to the Supreme Court, assigning as error, trial, and upon this motion the Court were in addition to setting aside the master's re- equally divided. The motion necessarily port dismissing plaintiff's bill, and the en- fell. Afterwards the plaintiff's counsel tering of the above decree, the following: moved for judgment, and two judges

3. "It was error in Judge PATTERSON being present, one ordered judgment as a to enter a decree against the defendants, matter of course, and the other objected the President Judge being present and to the entry. dissenting.”

The prothonotary entered judgment and 4. "The two judges of the Court being upon a writ of error the judgment was present on the bench, and not agreeing to sustained by this Court. It is manifest sustain the plaintiff's bill, it was not com- that the plaintiff was entitled as of course petent for one of them to enter a decree to judgment upon the verdict after the against the defendants, the bill, by the motion for a new trial failed, and it would dissent of one of the judges fell, and should have been wrong to have denied it. This have been dismissed."*

was the view taken by TILGHMAN, C. J., Opinion by PAXSON, J. Filed June

Filed June who delivered the opinion of the Court, 4th, 1883

in which he said : “We cannot suppose The decree in this case was entered in that Judge CAMPBELL meant to act with the Court below by the Additional Law such impropriety as to arrest the regular Judge, the President Judge being present

course of law by forbidding the prothonoand dissenting The Court was therefore tary to make a proper entry. We rather equally divided, and the rule in such cases

think that he wished his opinion against is that no valid order or decree can be the verdict to be entered upon the record, made. If there is a motion before the and to leave the rest to the law; any other Court it falls. This is the rule everywhere, proceeding would have been highly imand it requires no argument to vindicate proper, and we will not without necessity it. Equal divisions sometimes occur in i suppose that Judge CAMPBELL intended this Court owing to the absence of one of to do what was wrong. its members. The only order we can

The distinction between entering a judgmake in such a case is to affirm the judg- ment pro forma upon a verdict, to which ment or decree of the Court below. The the party was entitled as of course, and plaintiff in error or appellant, who is the granting a decree in equity is so palpable actor, fails and his motion to reverse falls that we need not further discuss the case. to the ground. An affirmance here by a

The decree below was improvidently and dividend Court means merely that the unlawfully entered and must be set aside. judgment or decree below cannot be dis- This leaves the case precisely as if no turbed.

decree had been made. If the learned In order to reach his conclusion, the judges below cannot agree upon a proper learned judge who entered the decree be- decree, they have the power to call upon low, reversed the master and set aside his

a judge from another district to decide the findings of fact. His decree included an

case for them. But until we have a law

ful decree we cannot reach the merits. *See Seventh Day Baptists, 4 YORK LEGAL RECORD 29 The decree is reversed at the costs of for the opinion of the Court below on a contest subsequent to the decree from which this appeal was taken,

the appellees.

VOL. IV.

THURSDAY, MAY 31, 1883.

No. 13

Delaware County.

YORK LEGAL RECORD. ment to John McGolrick, and for the pur

pose of delivering to him the possession he violently and forcibly broke into and

entered the premises, peaceably occupied QUARTER SESSIONS.

by the prosecutrix and her children. The

evidence shows that a mob of about one Q. S. of

hundred and fifty persons were present Commonwealth ex rel. Boden v. McGolrick.

at the time, apparently assembled to witForcible Entry-Under what circumstances ness the breaking into the house.

He has one cannot forcibly enter his own dwelling. been arrested for forcible entry, and now Where the marriage relation is disrupted, or denied by

asks to be discharged because he is the one of the parties, who is in possession of the premises, a lessee of the premises, and is the licensee forcible entry by the one out of pos: ession is unlawful.

of the hotel kept there, and the husband This was a habeas corpus, brought by of the prosecutrix. There can be but little the relator, Michael F. Boden, to secure doubt that resistance upon the part of the his release from the custody of his bail, prosecutrix would have resulted in a John McGolrick.

breach of the peace, and as the preservaThe facts in the case are fully stated in tion of the public peace is of more importhe opinion of the court:

tance than any mere private right, it is

doubtful if the relator could, 'under the May 7, 1883. CLAYTON, P.J. The re- circumstances, forcibly enter his own lator is in the custody of his bail, charged house. If the prosecutrix were his wife, with a forcible entry into the dwelling of his right would seem to be clear to forcihis alleged wife who is the prosecutrix.- bly enter the house, but this is denied, and She alleges that, supposing the relator to

the evidence is sufficient to raise a serious be unmarried, she wedded him and has doubt upon this vital point in the case. lived and cohabited with him for several

If she is not his lawful wife and is the inyears as his wife; that she has recently nocent victim of his deception, to have discovered that she was deceived and that longer cohabited with him would have he had another wife living when the mar- been fornication on her part. riage was contracted between him and therefore, morally as well as legally right her; and that this discovery has caused a in resisting his further control over her rupture of their former relations and a

person, and had the right to forcibly exseparation from each other's society as

clude his further control over her or her husband and wife. That he had with children. If she was left by him in the drawn from her bed and had not slept in peaceful possession of the premises he the part of the house occupied by her since could not after the discovery of his decepEaster Sunday last. That she was left in

tion and crime, by force and violence peaceful possession of the dwelling part thrust her and her children into the pubof the house leased by him as a hotel and

lic street. She had a right to dwell where dwelling. That since the separation he he had placed her until ejected by some has admitted his former marriage and has higher authority than his. If he desired publicly renounced the prosecutrix as his

to reclaim his household goods, replevin wife.

was his proper remedy. If he desired to The evidence sustains the allegations of dispossess her of his land, ejectment was the prosecutrix and also shows that after

his lawful action. the discovery by the prosecutrix of his former marriage, and after her withdrawal

It may be admitted that a man can lawfrom his society, he sold the lease, good fully break into his own dwelling when will, furniture and fixtures of the establish-I it is forcibly detained from him by his

She was, wife, children or servant. i Rus. Cr.306;

The verbal statements of the garnishee, made in the

presence of the justice, after his answers have been de Bac. Tit. F. E. (D.) Ros. Cr. Ev. 378, and

Îivered, and when not under oath, and which are not ir

reconcilable with his former answers, will not authorize Commonwealth v. Keeper of Prison, i

the justice to disregard his former answers, and to enter

judgment against him. Ash. 140. But where the marriage rela

Practice before justice of the peace in cases of attachtion has been disrupted, or where it is

ment execution, considered. denied by the one in possession, neither Certiorari. the alleged husband or wife can forcibly and with such violence as will probably cember 6th, 1882, the alderman issued an

June 11, 1883. Rice, P. J. On Decause a breach of the peace enter the cember 6th, 1882, the alderman issued an premises in the adverse possession of the

attachment execution against H.C. Gates, other. This was decided by Lord C. J. as defendant, and M. B. Houpt. On the

same day the plaintiff filed interrogatories. Tenterden in Rex. v. Smith, 5 C. & P. 201, and is undoubtedly the law. In that case

The writ and a copy of the interrogatories the wife living separate from her husband

and a rule to answer were duly served.rented a house in her own name.

On December 14th, 1882, the return day

The husband with the consent of the landlord of the writ and the rule, all parties apentered and was in possession when the peared before the alderman. The defendwife with two others broke into the

ant in the writ put in a written claim for

the benefit of the exemption law. The house. It was held she could be convicted and the case was sent to the jury. If garnishee filed written answers to the inthe prosecutrix in the present case is not terrogatories, as follows: “I have not the lawful wife of the relator and is the

had transactions with him” (the defendinnocent victim of his deception, she had ant) as an individual or principal since

the within attachment was served on me, the lawful right when she discovered her unfortunate condition to forcibly exclude

nor was I then indebted to him as such, him from further control over her person, vice of said attachment I had been deal

nor have I since been. Prior to the serA continuance of their relations would have been a crime upon her part and his ing with said Gates as agent, and at the

time of the service thereof I had ordered attempt to forcibly enter her dwelling after she had peaceably possessed herself the manufacture of certain goods by him of it was unlawful.

as such.

Since, and prior to the service The relator is therefore remanded.

thereof, he has delivered said goods to me as such agent, amounting to $595.18, and

I have paid him on account thereof, to COMMON PLEAS.

wit, December 13th, 1882, the sum of C. P. of

Luzurne County $250." The interrogatory to which this

answer was made reads as follows :Houpt, Garnishee v. Lewis.

“Have

you
had
any

business transactions Justice of the Peace--Attachment execu

with the said H. C. Gates by which you tion.

are indebted to him ? If yes, state the Where a garnishee in his answer denies any indebtedness to the defendant as an individual or priucipal, but ad

amount of your indebtedness to him at the mits that he has had dealings with him as agent, the an- time of the service of this attachment.swer will prevent judgment against the garnishee. When the answer denies indebtedness to the defend.

State in your answers the particulars in ant as a principal a claim by the defendant to have the fund set apart to him under the exemption law will not

relation to your indebtedness to him, and conclude the garnishee, nor alone warrant the entering whether on account, note, or otherwise." of judgment against him.

It is competent for the plaintiff; notwithstanding the answers of the garnishee, to require the issue to be tried

A garnishee is only required to answer before the justice ; and if the record shows a trial, the court cannot, on certiorari, review the correctness of the the interrogatories that may be submitted justice's conclusions from the evidence.

to him. “And judgment will not be eno It is possible. also, that upon the day of the beasing the tered against him on his answer, unless he

to be served upon the garnishee, and require him to answer

expressly or impliedly admits his indebt

them.

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edness to, or his possession of assets be- swers, and that the matter may be fully longing to, the judgment debtor : and the inquired into and tried before the alderadmission ought to be of such a character man." The garnishee declined to file any as to leave no doubt in regard to its nature further answers in writing to the interroand extent;" 9 Sm. 361-364.

gatories already answered, “but answered Although the facts of the case cited verbally'' (as the transcript states) that differ from those involved in this case, the nothing was said about defendant being principle controlling the decision is a gen- agent at the time he contracted the debt eral one, and is applicable here. The with defendant, and that the reason he general denial by the garnishee of any paid a part of the claim was that he supindebtedness to the defendant, and of any

posed it would make no difference, as he transactions with him as an individual or

still had money enough in his hands to a principal, was a complete answer to the Pay plaintiff's claim. The record thus interrogatory, and relieved him from the

concludes : "The alderman being of the necessity of explaining his transactions opinion that the claim of the defendant is with him as an agent. The garnishee as- virtually an admission that the debt is owserts in his answer, not merely that the ing to him personally, and not to him as defendant in his transactions with him agent, and the defendant and garnishee claimed to act as an agent, but that he

both failing to disclose whom defendant was, in fact, such ; and, therefore, if the

is agent for, and also failing to give the answer was in itself sufficient to prevent

particulars of the transaction, therefore judgment against the garnishee, no act of judgment is publicly entered that the the defendant subsequent to the service of plaintiff have execution,” etc. of the writ, as, for example, claiming the

In thus entering against the garnishee benefit of the exemption law, could de- we think the alderman erred. It was stroy its effect. We do not wish to be competent for the plaintiff, notwithstandunderstood as saying that evidence of such ing the answers of the garnishee, to rean act would not be competent for any quire the issue to be tried, and to introduce purpose, or in any stage of the proceed- evidence to show that the money attached ings. It might be evidence to discredit was a debt due to the defendant as an inthe defendant, or to estop him from deny- dividual or principal, and if after hearing ing that the fund was his. But what we such evidence the alderman had entered mean to decide is this, that when the judgment for the plaintiff, the court could garnishee denies in his answer any in- not, on certiorari, review the correctness debtedness to the defendant, and the re

of his conclusions from such evidence.cord shows nothing further than a claim The only remedy of the party aggrieved by the defendant to have the fund set would be by appeal. So, also, upon the apart to him under the exemption law, trial of the issue, the plaintiff could have judgment cannot be entered against the required the defendant and the garnishee garnishee on his answer.

to be sworn, and to testify as if under

cross-examination. It is possible, also, The record further shows that the hear

that upon the day of the hearing the ing was continued until December 16th, plaintiff might have caused additional 1882, at which time the parties again ap- written interrogatories to be served upon peared before the magistrate. On the the garnishee, and have required him, by last mentioned date the plaintiff filed a

rule, to answer them within the time fixed paper excepting to the answer of the garnishee, and concluding with a request by the statute. But the record, by which "that the garnishee may be further exam

alone we must decide as to the regularity ined and required to make further an- of this judgment, does not show that either

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