ment advanced leaves Evans, the other defendant, entirely out of sight. The judgment for costs is as much in his favor as in that of Swartz, and yet it is difficult to see how it could stand at the same time for Evans and also for the estate.

another, we are not concerned with the character of either, or with the incidents which pertain to its enforcement. Each is to be regarded as a debt, and as such There is moreover another considerait may be used as far as it will go, to tion which leads to the same result. The meet and cancel the other. It does not costs of a case, so far as they are made matter therefore in the present instance up of the fees of officers of the law, bethat one judgment is for costs, while the long to such officers and not to the party other is for a tort, because they both in whose favor judgment happens to be stand alike in an application such as that rendered, who stands merely as trustee which is before us. This we have decided for them; Ranck v. Hill, 3 Pa. 423. at the present term in Pasck v. Vockroth, No. 411, April Term, 1893. See also Riehl v. Vockroth, 1 Dist. Rep. 80.

It is only where by payment he has made them his own, that they become his in fact, and it is only in this way that they become available to him as a set-off; Howell v. Withers, I Dist. Rep. 62.

But it is also objected that the judgment which the defendants desire to use is not in the same right as the one here The bill of costs for his witnesses are because it is in favor of Swartz as execu- however his own; Thomas v. Burnett, 2 tor. The judgment referred to is one for Luz. Leg. Reg. 155, and he is entitled to costs, entered against Jacob Rupp, the receipt for them, but this is clearly upon plaintiff therein, on a non suit, in an ac- the principle that he is directly liable to tion brought against John M. Swartz, ex- his witnesses for their fees and mileage, ecutor, and J. H. Evans. It is claimed that without regard to the result of the suit; these costs belong to the estate of which being so liable the costs which cover Mr. Swartz is the representative, and can them are regarded as belonging to him. not therefore be set off against his indi- In the present instance, therefore, it can vidual debt. This is clearly a misappre- not be successfully claimed that any part hension of the effect of that judgment. of this judgment for costs belongs to the While Mr. Swartz was sued in a repre- estate of which Swartz is executor; not sentative capacity, the costs which he re- the officers' fees for they belong to the covered so far as they belong to him officers who earned them; not the fees of at all, belong to him individually. No the witnesses, for these are either to go doubt the expense of defending the case to the witnesses themselves or to Swartz including the costs incurred could be charged up by him against the estate in his hands as part of the expenses of his administration of it. But the liability for There is one thing however yet to be these costs to the officers of the law and touched upon. This is a rule to set off to his witnesses is in the first instance one judgment against another, when as a personal, and in receiving judgment for matter of fact neither has been formally them against his opponent he recovers it entered. In the one case a non suit was individually as a party to the action to re-ordered, entitling the defendants to a imburse him for that for which he was judgment for costs, and in the other the thus personally liable. Had he had oc- plaintiff has recovered a verdict, but in casion to sue Rupp for these costs he neither case has any further step been could have brought suit in his own name; taken. We were asked at the argument Singerly v. Fox, 75 Pa. 112. to treat the matter as though both recThe estate is remotely interested in ords showed a formal entry of judgment. them, in case the executor should claim We have done this so far as to give our to be reimbursed for them out of it. As opinion on the merits of the application, the case at present stands, we must re- but we cannot make an available order to gard them as belonging to him and not set off one judgment against another to the estate. when no such judgments exist. The rec

and Evans who are directly responsible for them. This effectually disposes of the objections raised to the proposed set-off.

It is to be further noted that the argu-ord must be completed before we go any

tion of the provisions of that section.

further. It may be that the defendants 1874, and depend on the true construccould pay into court the balance due the plaintiff in the present case, and then The statute provides for dealing with have leave to take the money out in the the election returns. These are to be deother, thus practically effecting what is livered by the election judges to the Prosought to be accomplished in the present thonotary, and by him delivered to the rule. In that way, too, the fees still due Court. Thereupon they "shall be opened therefrom to the court officers could be by said Court and computed by such of taken care of. But so far as the present its officers and such sworn assistants as rule is concerned it is premature and for the Court shall appoint, in the presence this reason it must be discharged, reserv- of the Judge or Judges of said Court, ing to the defendants the right to renew and the returns certified and certificates this application when they are in shape of election issued under the seal of the Court as is now required to be done by return judges, and the vote so computed and certified shall be made a matter of Lackawanna Co. record in said Court."

to do so.

Rule discharged without prejudice.

C. P. of

Carbondale Election.

The duties of computing and certify

Elections Opening of Ballot Boxes-ing the vote as required to be done by reComputation of Returns-Powers of the Court-Acts 2 July, 1839; 30 January, 1874.

turn judges, at the time of passing this act, were defined by sections 78 and 79, of the general election law of 2 July, 1839. The judges of the several election districts, having met, elected one of their number as president of the board, and appointed two clerks. The judges delivered the certificates of election in their respective districts to the president, who caused the clerks," in presence of the board, to "add together the number of Votes which shall appear, by said certificates, to have been given for any person or persons, in respect to each office or station." The clerks then, in presence of the judges, made out the various certificates required, which were signed by ali the judges, attested by the clerks, and deposited or transmitted by the president as directed by this act.

May 29, 1893, P. P. SMITH, J.-Upon Thus far, by the terms of the Act of the computation by the Court of the re- 1874, the duties of the Court, in computturns of the election hell on the third ing and certifying the vote, are identical Tuesday of February, 1893, a complaint with those of the return judges under was presented charging palpable fraud the Act of 1839.

and mistake in the return from the sec- Both acts provide for defects in the ond district of the third ward of the city returns. of Carbondale, and thereupon an application was made for an order to bring in the ballot box of that district, that it might be opened, and the fraud or mistake detected and corrected by an examination of the ballots. The authority of the Court to make such an order is the question arising in the case.

By the Act of 1839, "it shall not be lawful for said judges or clerks, in casting up the votes which shall appear to have been given, as shown by the certificates, to omit or reject any part thereof, except where, in the opinion of said judges, such certificate is so defective as to prevent the same from being underThe duties and powers of the Court, stood and computed in adding together in the computation of election returns, the number of votes," in which case, are entirely statutory. They are defined when the return was required to be transby section 13, of the Act of 30 January, mitted to the secretary of the common

wealth, a copy of the defective certifi- other cause. Such a construction of the cate was to be attached to it. language would open a far wider field of The Act of 1874 gives the court the inquiry than it is reasonable to believe power of correcting, within certain limits, was contemplated by the act-an inquiry, defects in the returns; providing that "in moreover, that could by no possibility be case the return of any election district completed within the period of three shall be missing when the returns are days, as required by the act. Hence it presented, or in case of complaint of a seems a necessary conclusion that the qualified elector under oath, charging meaning and purpose of the act are by palpable fraud or mistake, and particu- no means as broad as its language on larly specifying the alleged fraud or mis- this point. The true limit must be take or where fraud or mistake is appar- sought through a consideration of its ent on the return, the court shall examine other provisions. the return, and if in the judgment of the The mode of conducting the inquiry is court it shall be necessary to a just re- set forth in the act with evident caution. turn, said court shall issue summary pro- There are but two steps of the proceedcess against the election officers and over- ing and they are carefully and specificseers, if any, of the election district com- ally pointed out. The first is summary plained of, to bring them forthwith into process to bring in the election officers court, with all election papers in their and overseers, with all election papers in possession; and if palpable mistake or their possession. The next is such hearfraud shall be discovered, it shall upon ing as may be deemed necessary to ensuch hearing as may be deemed necessary lighten the Court. Any fraud or misto enlighten the court be corrected by the take thereby discovered is thereupon to court and so certified, and the said in- be corrected. quiry shall be directed only to palpable The secrecy of the ballot and the sancfraud or mistake, and shall not be deem- tity of the ballot box have always been ed a judicial adjudication to conclude guarded in this Commonwealth with any contest now or hereafter to be pro- jealous care. By the Act of 1874, in advided by law." dition to the oath prescribed by the Act The statute thus specifies the direction of 1839, the election officers are to be of the inquiry and the method by which sworn "not to disclose how any elector it is to be conducted. It is to be directed shall have voted, unless required to do "only to palpable fraud or mistake," so as witnesses in a judicial proceeding." either apparent on the return or specifi- By this Act of 1839, "as soon as the cally charged by affidavit; it is to be con- election shall be finished," the ballots, ducted by bringing before the court for with certain designated papers, were to examination, the election officers and be "carefully collected and deposited in overseers, "with all the election papers one or more of the ballot boxes, and in their possession," and "upon such hearing as may be deemed necessary to enlighten the court," the fraud or mistake discovered is to be corrected.

such box or boxes, being closely bound around with tape, shall be sealed by the inspectors and the judge of election, and shall within one day thereafter be deThis clearly does not, in express terms, livered by one of the inspectors to the include an examination of the ballots cast nearest justice of the peace, who shall in the district, and unless authority for keep such boxes containing the tickets such examination can be implied from and other documents, to answer the call the language of the act, it does not exist. of any person or tribunal authorized to The act does not define the "palpable try the merits of such election." By the fraud or mistake" to be corrected. Un- Act of 1874, "the judge and minority inless, however, some limit be set to the spector shall, after the election shall be scope of this language, it must be held to finished, and the ballot box or boxes coninclude every species of fraud that may taining the tickets, list of voters and be committed at an election, by either the other papers, have been securely bound election officers, or the persons voting, to- with tape and sealed, and the signatures gether with every mistake that may be of the judge and inspectors affixed theremade in receiving or counting votes, to, forthwith deliver the same to the through ignorance, error of judgment, or mayor or recorder of such city, or in

counties, townships or boroughs, to such Canal Co., 59 Pa. 174; Dellinger's Appeal, person or persons as the court of com- 71 Pa. 425; Earp's Appeal, 75 Pa. 119; mon pleas of the proper county may Fessler's Appeal, Ibid 483; Insurance designate, at the place provided as afore- Co. v. Coatesville Shoe Factory, 80 Pa. said, who shall then deposit the said 407; and in numerous cases in other boxes, and keep the same to answer the states, and in the federal courts. The palcall of any court or tribunal authorized pable fraud or mistake to which the into try the merits of such election." Thus, quiry by the court is to be directed, on for more than half a century, the law has the computation of the returns, must expressly directed the sealing of the bal- therefore be construed to be such as can lots within the ballot boxes, withdrawing be detected and corrected from an examthem from the custody of the election of- ination of the election officers and papers ficers, and withholding them from exam- in their possession. ination except upon a trial of the election While the question has never been deon its merits a trial which can take cided by the supreme court, the courts place only on a contest between the pro- of common pleas have repeatedly ruled in per parties. A legislative intention to ex- conformity with this conclusion. In Philpose the ballots to any other examination adelphia, in 1874, in the matter of the is not to be presumed, or inferred from Election in the Twenty-ninth Ward (1 general or doubtful language. Had the W. N. C. 114) Judges Ludlow and Allilegislature intended this, the intention son held that the court could not, on the could easily have been expressed, and the computation of the returns, examine the authority necessary to carry it into effect ballots, and that this could be done only conferred, in direct language, and it is on an election contest; and in the matter not unreasonable to conclude that such of the election in the Fifth Representalanguage would have been used. Had this tive District (I W. N. C. 125), on an apbeen the intent, the summary process au- plication for the production of the balthorized to bring into court the election lot box, Judge Ludlow again held this officers, and all election papers in their possession, would have included also the custodian of the ballot box. Having passed out of the custody of the election officers before the computation of the returns, it could by no possibility be reached by process against them at that stage of the proceedings. With such intent, the act, most obviously, would have expressly provided also for an examination of the ballots as part of the hearing deemed necessary to enlighten the court. But the act, in fixing the scope of the inquiry and the method of conducting it carefully, and with apparent design, avoids including provisions so essential to a correction of the returns by an examination of the ballots. Having in view what the act grants and what it withholds, the conclusion appears irresistible that, in defining the process of inquiry, everything not directly provided for is excluded. The application of the maxim: "expressio unus est exclusio alterius" was never more apparent, or more clearly demanded for the interpretation of the statutory language. This maxim has long been recognized as an important aid in the construction of statutes, contracts, etc., illustrations of which may be found in City of Erie v. Erie

view, saying, "we decline to act until a contested election case is brought before us." In Foster's Case (2 Leg. Rec. Rep. 255), Judge Ludlow again declined to open the ballot box, saying: "It is, we think, clear, that as the duty of the judges is simply to compute the vote, as specified in the returns presented to them according to the law, it could never have been the intention of the legislature to go behind the returns so presented and into the ballot boxes, for the purpose of making a recount of the ballots. *** The law provides a method by which every election may be contested; then, and only then, when necessary, the ballots may be handled." In Wayne county, upon the computation of the returns of the general election of 1886, Judge Seely denied an application to examine the ballots cast in the township of Lake; and the ballot box was opened only on a subsequent contest (McCarty's Contested Election, 2 C. C. 561). This report does not show the first application and its refusal, but having myself been one of the counsel in the case, I state them on my own knowledge. In the matter of the election in the Twentieth ward of Philadelphia (2 Dist. Rep. 396), upon the

validity of such a judgment, to set out on the record
the facts which, before the passage of the act, were
essential to the validity of the judgment.
Rule to strike off judgment, &c.

The petition in this case was as follows:

That the above judgment upon which said fieri facias was issued was entered in your honorable court upon a transcript from the docket of Wm. T. Williams, a Justice of the Peace, in and for said county; that said judgment was rendered against your petitioner by said Justice for $52.58 upon a certain promissory husband, Adam Hess; that at the time of note signed by your petitioner and her

computation of the returns, February 24, 1893, an application was made for an examination of the ballots, and much stronger ground was laid for it than that presented in the present case; nevertheless, Judges Finletter and Fell, sitting as return judges, refused the application. This is the latest case reported, and was decided on the same day on which the application in the present case was refused. The only reported case apparently at variance with these is that of the election of school directors of the signing said note she was and still is the Twelfth ward of Philadelphia, in 1886. wife of said Adam Hess, who is also livIn this, the returns left it uncertain ing; that your petitioner is advised and believes that the judgment so rendered by said Justice is void and unwarranted were for a full term or to fill a vacancy by law, as shown by the transcript; that in an unexpired term. The matters set forth in the application of one candidate by virtue of said writ of fieri facias, the Sheriff of York county has levied upon the real estate of your petitioner and the

whether the votes cast for two candidates

acres of wheat, 4 acres of rye, 13 acres of corn planted, 5 acres of oats, two advertised the same to be sold on July stacks of hay and lot of manure and has

for an examination of the ballots were conceded by the other candidate, and the examination would seem to have been following personal property, viz: 16 made by mutual consent. Under the circumstances, this case cannot be deemed an authority for opening the box on the present application, opposed as it is by the current of authorities to the contrary.

I, 1891.

Your petitioner therefore prays your Honorable Court to stay the execution tiff, to strike off the said judgment or to issued upon said judgment by said plainopen the same and let her into a defence, and she will ever pray, etc.

Stewart, Niles & Neff for rule.
E. D. Bentzel, contra.

October 16, 1893. BITTENGER, J.The Courts of Common Pleas have no power to open and set aside judgments of Justices of the Peace, a transcript of which have been entered in the former court for the purpose of lien, except when such judgments are brought into court upon a certiorari or appeal. judgment is still in force before the justice and any attack upon it must be made there; Daily v. Gifford, 12 S. & R. 72; O'Donnell v. Seybert, 13 S. & R. 54; Lacock v. White, 19 Pa. 495; Boyd v. Miller, 52 Pa. 431; McKinney v. Brown, 130

The record failed to state that H. was a married
woman. On a motion to strike off the judgment, Pa. 365.

HELD, that the motion must be overruled.

The

A motion to set aside or strike off a judgment must In the opinion, in the last mentioned. case, delivered by Paxton, C. J., the

be upon the ground of invalidity appearing on the face of the record.

A judgment against a married woman before the pass exception to the above rule is stated to presumably valid, and it is no longer necessary to the be 'when the transcript shows that the

age of the Act of 1887, presumed to be void, is now