The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-02-14


Provided, That such rules shall not be Inconsistent
with the Constitution and laws OF this Common
wealth THIS being an enabling act is to % be n6e-
all cases embraces the power to make arule in this
particular case. 01nns nleus eontinet IN Sc nIfns
ance Of the amendment in the cases OF District At
torney and Prothonotaries This was not error, but
fell within the sound discretion OF the Court The
grounds Of allowance are not In the record, and
cannot be reviewed by us. The amendment was
fer jurisdiction nor Of matter essential to the
frame OF the petition, but was mere specification
OF fact cOmprehended within the general terms
OF the complaint and belonging only TO the proof.
The miscount OF 40 votes Tor Sheppard, which be-
longed to Gibbons. occurred at the same election.
entered into the same general return, and
affected the result. The matter pertaned to the
the merits the power Of amendment exists at
add oyesaPpeas Wright, M 54s Cambria Iron Works
VS.. Tomb, l2Wrght 98s; i6id, 40; Boyd vs. Negey,
court, and cannot be revised. To the numerous
authorities cited by the defendants in error may
Wright 377; Same vs. Same, p. N Smith, 3SI;
Penna. r. II. vs. German Church, P. ~ Smith, 445.
And in point OF reason, why should the court not
Il is judicial remedy and concerns important
rights ON what ground should the cause of the
people be held 80 strictly that mere specification Of
facts within the same general complaint, relating to
the same contest and the same returns, could not
be allowed in order to reach the very "merlts" the
court ordered 70 try? It does not appear from the
record that the matter was Illegal, or was objected
developed in the testimony The right of court to
make an order necessary to the justice OF the case
nu'c pro tune cannot be questioned In Fitzgerald
vs.. Stewart z. N. Smith, 843, power was sup
ported TO enter Judgment nuTc pro tune six months
after verdict an action OF slander, to prevent an
abatement OF the suit by the death Of the plantf,
and after motions for new trial, in arrest Of judg
ment, and to abate the writ. In slcer vs.
Judgment nunc pro tune was entered in 1885 to sup
port sherins sale made in 1921, and was sustained
upon numerous authorities. ...g
The last head is that concerning the frame of the
complaint. The refusal OF the Court TO quash the
petition is not ground Of error. Their jurisdiction
matter of discretion. (Resp. vs. Cleaver, 4 Yeates,
37.) In this court there can be but one lnquity-
whether the petition is sufficient in its frame, and
sets forth proper ground OF contest. We shall do
the plaintiffs In error full justice in permitting the
suffciency of the petition. Like an Indictment bill
in equity, or libel when the record OF 1t is before
us we can only inquire whether 1t sets forth sum-
cient charge or complaint The evidence in support
of the charge is different matter, and need not be
set forth or specified. The law does not demand it,
and no analogy requires 1t. Indeed the reverse is
true, for the court is required ito proceed the
merits thereof" indicating thereby that the proceed
ing is not to be embarrassed by technicalites. Then
why should contested election petition have more
precision than other complaints at law, civil or
fraudulent election is as important as remedies for
other INJURIES. II the NE, liberty property and
contested election require more? Indeed, the
nature Of the subject demands even less. The
$4,000 votes are poIed in 266 precincts render
minute specification impossible within ten or twenty
ceed In analogy to the practice in other cases,
notice OF particulars, ordered and governed by the
technicality if the petitioners were required to set
forth In their complaint within ten days after the
election every Illegal vote every Illegal act OF the
nicety would prevent inyestgation and defeat the
that Certainty to common intent is ali that is re-
quired. Heard Stephens z. c., $50. The early
truer exposition Of the law, and one 70 be adhered
to- is found in the opinion Of the late Judge Thomp-
Mann an y ss na5 9 Ss As
strictly & as TO afford protection to fraud by Which which
to permit the acts of sworn officers chosen by the
| people TO be inquired into without adequate and
| well-defned cause"
| We find many analogies to guide u.s. The general
| rule in all indictments says Sergeant, 9, Is
that the charge must be positively averred; but in
what it is not sufficiently averred, is not
ascertained with precision, and must be left in a
great to the legal discretion Of the Court
Certainty to a common intent in general only is re-
quired, and not certainty in every particular Shee-
| han VS.. Commonwealth, Watts, 212. Whether
bill Of particulars or specification of facts shall be
required is exclusively in the discretion Of the pre-
siding Judge. Wharf. G. l. 2si, citing Common
wealth vs.. Giles, Gray 4Se. r. vs.. Kendric6, Ad.
also Commonwealth vs. Hunt, Metcalf, 1875. In a
libel for divorce it was held that the proper prac-
tce is to give notice that between two specific dates
acts OF cruelty ETC., intended to be proved.
Steele VS.. Steele, Dallas, 400. See also Ganatt VS..
Ganatt Yeates, 244
There are many cases. at common law and under
statutes, where the description is general, and be-
cause OF the multitude Of particulars constituting
the o1fense or complaint the prosecutor may be re-
| quired to give notice OF the acts intended to be
proved Thus in the case OF a common barrator,
Russell on Cr, 1856; I'd Hawkins c. L., c. 25, 80;
and disorderly houses, houses OF III fame and gaming
houses. Wharf. c. L., Ed, 299. Tipping houses,
Commonwealth VS.. Baird s. and r., l4l Lottery
tickets Commonwealth VS.. Gillespie, s and r.,
469. Timber trees, Morpi VS. Commonwealth, Barr,
439. The court remarked in the last case that the
Legislature never intended that an Indictment
for timber trees should be so special SlaI
10 the case or Commonwealth vs. Banker, Harris,
4l2 for using vulgar and obscene language to
crowds; and Commonwealth vs. Stohn, Smith, 24s
the case Of common scold. And see Ely VS.. Com
monwealth, Ban. 2IT and commonwealth Vs. hls
son, $50 r., 422.
in view Of this array of cases Affecting the highest
absolute rights OF Individuals 1t is impossible to az
firm such stringent rule as we are asked TO apply
to contested election cases, or to say that this pe
tion is so fatally defective in its frame, lt should
! have been quashed on motion or set aside on de
murTer II sets forth in fitting terms the general eec
tion OF 1865, the persons voted Tor, the NUMBER o.
votes returned for each, ana the majority Ior thS
| persons returned; charges an undue election ano
false return, alleges the election or the opponent
and sets for the grounds OF the legalty OF the eec
tlon II charges that the officers OF the election
fraudulently conducted and carried on the election
with Wiful disregard OF all the requirements OF tht
law aad then specifies their various fraudulent act
by means OF which the fraud was perpetrated, anC
illegal votes suffered to be cast for the person re
turned. Here may notice IN passing the Omission
TO SET the letter opposite the names OF the electors
VINO had voted. This is specited IN the petition a.
one OF the fraudulent acts OF the election oicerS
and not as cause in itself sul1clent TO set asld
the election. The petition then AYERS tnat al
these acts were done and committed with the lnten
and purpose OF holding an undue election, and q
, prevent an honest expression OF the popular VII
ana true ascertainment OF the real votes OF Tn
qualned voters and that in pursuance or TINS con
duct the popular Will was not ascertained, but wa
defeated, whereby the election was rendered false
i lrandnlent, undue and void, and the return VOID yolo
- and should therefore be dsregarded. The petltio
does not close here, though much more descriptly