Commonwealth ex rel. Adams v. Bishop. The fact seems to be undisputed that "Emma Adams" and "Mrs. J. Q. Adams" are one and the same person; that "Emma Adams," the petitioner, was one of the regularly nominated Republican candidates; that no candidates were named by the Prohibition Party and none were placed on the official ballot; and that a number of persons wrote the name of "Mrs. J. Q. Adams" as a Prohibition candidate. It is also undisputed that the election boards of both the election precincts of Bell Township credited the petitioner with 178 votes, which total was reached by adding the votes cast for "Emma Adams" and those cast for "Mrs. J. Q. Adams" together. The Clerk of the Court of Quarter Sessions issued a certificate to Charles W. Bishop, on the ground that the petitioner should not be credited with the votes cast for "Mrs. J. Q. Adams," by which method of computation the petitioner received only 139 votes and Charles W. Bishop 141 votes, Otto Grube having received the highest number, or 159 votes. As there were but two persons to be elected as school directors, certificates were issued to Otto Grube and Charles W. Bishop, in accordance with the method of calculation followed by the Clerk of the Court of Quarter Sessions. Hence, this petition, which complains of the action of the said Clerk in failing to credit the petitioner with all the votes cast for both "Emma Adams" and "Mrs. J. Q. Adams." We regard the law as settled adversely to the petitioner in a case very nearly analogous to the present one, viz., that of Carothers's Election Contest, 25 Dist. R. 1151, the only difference being that in the Carothers's case the name of the petitioner was written two ways upon the official ballot, whereas, in the present case, the name of "Mrs. J. Q. Adams" was not on the official ballot at all, but only the name of "Emma Adams." The opinion in the Carothers's case is so appropriate to the present controversy that we adopt it as our opinion. We quote as much as is applicable to the present issue: "The only question properly raised is whether or not the votes cast for Oscar Tillbrook, who was a candidate on the Citizens' ticket, should have been credited to Oscar T. Tillbrook, who was a candidate upon the Republican ticket, or vice versa. The petitioners aver that this should have been done. But the difficulty with this proposition is that it involves a violation of the election laws. If their request be granted, the plain words of a statute must be disregarded. No matter how many nominations a man may obtain, his name can only appear once upon the official ballot. Section 14 of the Act of June 10, 1893, P. L. 419, as amended by the Act of April 29, 1903, P. L. 338, specifically provides: 'Whenever any candidate shall receive more than one nomination for the same office, his name shall be printed once, and the name of each political party so nominating him shall be printed to the right of the name of such candidate, arranged in the same order as the candidates' names are grouped. . . .' "Plainly, one of the purposes of this provision is to prevent cumulative voting where each elector has the right to vote for more than one candidate, as he had in this instance. It is a wise regulation, intended to frustrate fraud, and it ought to be strictly enforced. Remembering that the manner of conducting elections is minutely prescribed by law, it seems to us that, where a man's name appears more than once upon an official ballot as the candidate of different parties, it must be presumed that they are different persons.” An apparently different conclusion was reached in the case of Quinn's Contested Election, 14 Dist. R. 386, but in that case only one candidate was to be voted for, and the mischief pointed out in the Carothers's case could not occur. A moment's reflection will demonstrate the wisdom of the rule denying the right of a person voted for under two or more names or derivations Commonwealth ex rel. Adams v. Bishop. to show that the several names were intended to designate one person where more than one candidate is voted for for the same office. Thus, to admit proof that "Emma Adams" and "Mrs. J. Q. Adams" were one and the same person, and upon such proof to credit her with the votes cast for her under both names, would be to open the door to palpable fraud and establish a very dangerous precedent. While we do not mean to cast any reflection upon the voters in Bell Township, yet it goes without saying that if any voter had been so disposed he might have cast a vote for "Emma Adams" and one for "Mrs. J. Q. Adams," and this might have been allowed and the votes counted, unless the election officers knew that the elector had cast two votes for one and the same person. Frauds of this kind would be more likely to occur in large and thickly populated precincts where the election officers might not be well acquainted with all the candidates. Again, fraud and corruption in the conduct of elections where the election officers, as well as voters, would combine to procure an unfair election and defeat the will of the people would be much more easy of accomplishment and more difficult to detect where more than one candidate was voted for for the same office and the votes were cast for the same person under different names. Another feature of this election must not be overlooked. In paragraph 6 of the petition it is alleged that, "at said general election held on Nov. 3, 1925, the petitioner's name appeared and was printed on the official ballot used at the same, as a candidate of the Republican Party for the office of school director. . . ." Paragraph 8 alleged that the "Prohibition Party made no nominations at said primary election, but spaces were reserved on said official ballot as provided by law where electors might write or paste the names of two persons for whom they desired to vote for said office." Paragraph 9 showed that the Election Board of "Bell, North" Election District returned, among other things, that "Emma Adams,' Republican, had 76 votes for the office of school director. 'Mrs. J. Q. Adams,' Prohibitionist, had 23 votes." Paragraph 10 of the petition indicated that the Election Board of "Bell, South" Election District returned that ""Emma Adams,' Republican, had 63 votes. . . . 'Mrs. J. Q. Adams,' Prohibitionist, had 16 votes." .... It follows that 23 votes in "Bell, North" and 16 votes in "Bell, South" were cast for "Mrs. J. Q. Adams" as a Prohibition candidate; in all, 39 votes. These 39 votes must have been written or pasted on the ballots, as no Prohibition candidate was printed on the ballots for school director. It is also averred that the name of "Emma Adams" did appear on the official ballot as the Republican candidate. Her name, therefore, appearing on the official ballot could not have been written or pasted in any of the blank spaces on the ballot except in violation of section 1 of the Act of July 9, 1919, P. L. 829, 8 Purdon, 8275, § 217, which provides, inter alia: “He may vote for the candidate of his choice. . . or he may insert in the blank space provided therefor, in accordance with section 14 of this act, any name not already on the ballot." Section 14, referred to, amended by section 2 of the Act of April 29, 1903, P. L. 341, 2 Purdon, 1349, § 148, provides, inter alia: "There shall be left as many blank spaces as there are persons to be voted for for such office, in which space the voter may insert the name of any person whose name is not printed on the ballot as a candidate for such office.” If the 39 electors whose votes the petitioner desired to have added to her list had intended to cast their ballot for some person other than "Emma Adams," then they could not under any circumstance be credited to the petitioner. If, however, they intended to vote for "Emma Adams," they should have put the (X) opposite her name on the official ballot instead of writing Commonwealth ex rel. Adams v. Bishop. either "Emma Adams" or "Mrs. J. Q. Adams" in the place where the same was found. And now, April 29, 1926, after due and careful consideration of all the matters and things averred in the petition and answer thereto, it is ordered and adjudged that the petition be dismissed; further, that the offices, franchises, liberties and privileges claimed by Charles W. Bishop are allowed to him, together with costs. Commonwealth v. Coffin. Criminal law—Cash bail—Return of cash—Act of May 12, 1921. 1. Under the Act of May 12, 1921, P. L. 548, cash bail for appearance in court can be returned only to the defendant from whom it was received. 2. When a defendant depositing cash is sentenced to pay a fine and costs, the county can set-off its claim against the cash bail. Rule to show cause why cash bail should not be surrendered. Q. S. Lehigh Co., April Sess., 1923, No. 48. Dewalt & Heydt, for petitioner; James F. Henninger, contra. RENO, P. J., Aug. 3, 1925.-The defendant deposited $300 as cash bail for his appearance at the next term of the criminal courts. He appeared and was sentenced to pay a fine of $500 and the costs of prosecution. These amounts remain unpaid. The petition before us is signed by his wife, who alleged that the money which defendant deposited belonged to her. She prays for its return, averring that the condition upon which it was deposited has been performed by his appearance. Aside from the averments of the petition, there is no indication upon the record that the money belonged to her, nor that it was deposited by her. We may assume that it was her property and that she either lent or gave it to her husband. In any event, the county received it from his hands, which were the only hands from which it could receive cash bail; for the Act of May 12, 1921, P. L. 548, in force when the deposit was made, differs from the Act of March 19, 1925, P. L. 49, in that, under the former act, only the money of the defendant could be received as a deposit. It follows from this circumstance that if the money is to be returned, it can be returned only to the defendant. The court cannot undertake to determine whether the fund belongs to the defendant or his wife. It can recognize as owner only that party who, by the terms of the act, was allowed to deposit cash in lieu of entering into formal recognizance with surety. Further, petitioner contends that, even if the money belongs to her husband, it should be returned to him, inasmuch as he complied with the condition of his obligation by appearing at the required time. No fault can be found with the argument as far as it goes, but it fails to cover the case. When defendant appeared in court to answer the charge against him, he complied with the condition of his obligation. He was entitled then to the money he had deposited. He became a creditor of the county; but practically, at the same moment, he also became a debtor, for he was sentenced to pay a fine and the costs. Surely, the County of Lehigh may exercise the rights of every debtor; that is, it may set off its demand against the sum due defendant. Now, Aug. 3, 1925, the rule to show cause is discharged and the prayer of the petition is dismissed. From Edwin L. Kohler, Allentown, Pa. Commonwealth v. Suchi. Search warrants-Affidavit-Credibility of affiant. The credibility of the person who makes the affidavit upon which a search warrant issues is for the officer who administers the oath. The court must assume that the officer passed upon the credibility of the affiant and will not review the correctness of his judgment in that respect. Rule to quash search warrant and suppress evidence. Q. S. Dauphin Co., Jan. Sess., 1926, No. 35. Thomas D. Caldwell, for rule; Robert T. Fox, District Attorney, contra. Fox, J., March 26, 1926.-This matter comes before us upon a rule upon the district attorney to show cause why (a) the search warrant should not be quashed; (b) why the evidence illegally obtained should not be suppressed and never used against the petitioner or any other person in any criminal proceeding now pending or hereafter to be brought. To this rule an answer was filed. An examination of the affidavit to support this search warrant discloses that it was made by one Harry Lowd, in which he states that on or about Sept. 24, 1925, he purchased an alcoholic beverage which he believed contained more than one-half of 1 per cent. of alcohol from John Suchi, being onehalf pint, for which he paid 75 cents, at No. 1118 North Cameron Street. The petition, amongst other things, avers that the said Harry Lowd is a fictitious person; that no one by that name lives in Harrisburg, and that the said affidavit was false and fraudulent and made solely for the purpose of gaining entrance to the petitioner's house; that the said Harry Lowd was not produced at the hearing, when and where the petitioner was held for court on the charge of illegal possession of intoxicating liquor. We are asked to quash this search warrant on the ground that the affiant, Harry Lowd, was not a credible witness. The alderman who administered the oath to him pronounced him to be a "credible person." We think that was a matter for the alderman who saw and heard the affiant. We must assume that he passed upon his credibility, and it is not for us to review and pass upon the correctness of his judgment in that respect. It may be that the witness cannot be found in the City of Harrisburg. He may reside elsewhere, but all of that was for the alderman who heard the affiant. In the case of United States v. Kaplan, 286 Fed. Repr. 963, it is said: "There seems to be no question as to the explicitness of the requirement that, before the issuance of a warrant, there must be proof by affidavits or depositions of 'the facts tending to establish the grounds of the application or probable cause for believing that they exist:' Espionage Act of June 15, 1917, § 6, 40 Stat. at L. 229 (section 104961b). The determination of whether or not the facts proven satisfy of 'the existence of the grounds of the application or that there is probable cause to believe their existence' (Espionage Act, supra, § 6) is judicial and must be performed by the judge or commissioner. It cannot be performed by the applicant or any affiant or deponent. It is, therefore, insufficient for the issuance of a warrant that an affiant or deponent shall swear, ever so positively, to the conclusion that liquor is stored in violation of law in a described building, without affirmatively stating the facts upon which such knowledge is founded. In such case, the affiant or deponent would be performing the judicial act, the commissioner or judge would be a mere automatum, and the manifest mandates of the law would be disregarded. . VOL. 7-47 Commonwealth v. Suchi. "The commissioner or judge having become satisfied by proven facts (or the existence) of the grounds of the application or that there is probable cause to believe their existence, he must not only issue the warrant, but must state therein 'the particular grounds or probable cause for its issue' (Espionage Act, supra, § 6), the mandate is clear." Wherefore, we are of the opinion that the rule should be discharged. Mahon v. Hoder et al. Equity-Specific performance of contract for sale of real estate-Provision in deed from father to son not to sell land out of the family — Distinction between condition and covenant-Restraint upon alienation-Marketable title. 1. A deed for land from father to son granting an estate in fee, upon an agreement contained in a contemporaneous written contract, referred to in the deed, that the son shall not sell the deeded property to strangers or persons out of the family, in furtherance of which the parties bind themselves, their heirs, executors, administrators or assigns, in the penal sum of $5000, conveys a fee simple and not a conditional estate. 2. The provision against a sale of the land out of the family is a covenant and not a condition subsequent. 3. If such provision were construed as a condition subsequent, it would be void, because in restrain of alienation and inconsistent with a reasonable enjoyment of the fee granted. Bill in equity for specific performance of contract to sell real estate. C. P. Wyoming Co., Book No. 4, page 315. E. B. Farr, for plaintiff; Kaufman, Mattes & Levy, for defendants. TERRY, P. J., Jan. 12, 1926.—The court, from the pleadings, finds the following Facts. 1. That the real estate in question is situate in Overfield Township, Wyoming County, Pennsylvania, and was formerly the land of Alfred Mahon. 2. That on June 7, 1882, said Alfred Mahon and Perlinda, his wife, the parents of the plaintiff, by deed duly executed and recorded, conveyed to the latter by apt fee simple words a part of the grantor's said land—a farm— embracing the lots in controversy, "in consideration of the sum of one dollar, love and affection, and for their maintenance and for the payment of certain legacies to heirs as provided in contract of this date." 3. That the contract mentioned in the preceding paragraph was under seal and was executed, acknowledged and recorded contemporaneously with the said deed to the plaintiff, and set forth that the aforesaid Alfred Mahon had that day deeded his farm in [separate parts] to [his sons] F. W. Mahon and the plaintiff for the consideration that "the said F. W. Mahon and Owen G. Mahon agree to keep, maintain and support the said Alfred Mahon and Perlinda during their natural lifetime with food and clothing and everything necessary for a good and comfortable support. And also, after the decease of the said Alfred Mahon and Perlinda, to pay to Malvina A. Sherwood" and others named certain amounts of money specified. The said contract, after providing that Lydia A. Mahon should have a home and comfortable support as long as she remained single, continued as follows: "It is further agreed that the said F. W. Mahon and Owen G. Mahon are not to sell the said deeded property [to] strangers or person or persons out of the said Mahon family, it |