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

case and covered by the evidence and we are bound
TO believe they did disregard IL. Omnid presUmmn-
tT qttiie Jdetd, donec probetw IN cogtrdriunl. The
court having exclusive and nai jurisdctionw have
right TO presume that it abused It's powers. The
evidence, calculations, and opinion OF the court as
we have seen, are not before MS. We cannot Judi
cally know whether the court struck out divisions,
result We know only the decree aud that clearly
right The whole argument upon the power to strike
out polls is outside of the record before us.
And even II II were conceded that the prayer to
strike out were defect In ITSELF yet the decree can
not be affected by Il. The presumption now Is that
II illegal the court dsregarded IT, This is supported
by authority. Thus In Hagen VS. Commonwealth, VI
Harris 1856, this court held, upon an Indictment OF
eleven counts, where, after motion TO quash was
refused, general verdict of guilty was rendered on
ten OF the counts and judgment arrested two that
the Judgment on the remaining eight would not be re-
versed, any count be sufficient and the nrst being
found to be good. The same had been decided in
Commonwealth vs. McKissOn, y IL II. 400, ana in
Ha1smsa s N s ss,S 0n Ban S Burnside
vania ts settled that II count be good it Is sun
Cient" So also, as TO several matters contained in
r. 84s Justice Duncan said ait is the law that where
several matters are lald I'm the same count part OF
which Is not actionable, or not actionable In the
form laid, II there are sufficient facts laid to support
the action, II Will be Intended after verdict that
damages were given only Tor such as are properly
laid" The same Is said In Chitty on P., 6S2 and
the reason given that the verdict will sustained
by the iSrtendnent and presumption that the Judge
duly directed the jury not to find damages in the
defective allegations. The same intendnent
made in Weghy vs. Webb rs, ana II. s1O the court
remarRnB JnaJ IL Is not To he presumed the Judge
would direct or the jury would have given the YER
diet without sufhcent evidence OF the breach of
contract. The defect was therefore caused by the
verdict There are many analogous cases. Stoever
VS.. Stoever, ). r., 1915 Kerr vs. Sharp, Ia $.
r., 800; Turnpike Company vs. Rutter, 4 =. a. r.,
8; Sedorm vs.. Shaffer, w. n s., 52g; Common
wealth vs. Hunt, 2 Harris, $40; Seetz & Co. vs.
Buhman IL Co., Harris, Co. In this case the in
tendment should be even stronger, for the
court being the exclusive judge OF the facts we'll
as the law, we cannot suppose the decree was rem
dered on incompetent or insufficient evidence.
'fThe courts make every reasonable presumption to
rid themselves OF objections which do not touch
the merits" Per Rogers T. Setz x Co. vs.. Bunum
Il Co., supra
Thus lis evident from this array OF authority no
presumption can be shown from the decree that tn
court struck out divisions because such prayer is
contained in the petition The decree itself fur
nshes such evidence while the prayer, IL Illegal
we must now presume, was disregarded upon the
legal intendment the cases all say should be made
The argument therefore, founded on the decree
following the dllegatd ct probdtd Is non sequitur
and Illogical. The probdta are not before u.s. while
the deg1d are not presumed to be followed contrary
to law. But In addition to this general principle we
have an authority in point. In Ervng VS.. Nilby, 7
Wright, 1884, it was held that the proceedings could
not be reversed because OF contradictory averments
In the specifications, but the proper course would
have been to move the court below to strike out the
contradictory part. and the certOrdri quashed.
Thera was no motion in the present cases to strike
out this prayer as illegal. The only motion was to
quash. Upon the whole record in these cases we
discover no error and the several DEGREES there
fore affirmed.