[Roland v. Schrack.] peal, 1 Harris 580; High's Appeal, 9 Harris 283-287; Lawson's Appeal, 11 Harris 85. G. F. Miller, for defendant in error.-The petition was properly signed and sworn to: Reigart's Appeal, 7 W. & S. 267; Trimble's Appeal, 6 Watts 133. The declaration of the defendant in the issue was admissible to show that the $1000, embraced in the judgment of $1772.50, was not a debt owing and due him, but on the contrary was a gift to his son: Cole v. Ballard, 10 Harris 431; Fitzwater v. Stout, 4 Harris 22; Whiting v. Johnston, 11 S. & R. 328. The opinion of the court was delivered by LOWRIE, J.-It seems to us that the verdict in this case lacks the support of any competent evidence. Let us get clear of the artificial form of the feigned issue, and take the evidence in its natural order. The contesting creditors were made the plaintiffs, because it was necessary for them to cast such doubt upon this claim as to throw upon the claimant the burden of proving it. We assume that they did so, when they proved his declarations that he had given his son $1000 to start in business, and then showed that that sum was afterwards included in the contested judgment. But when the claimant, on his part, proved that in fact he had lent the money to his son, and taken his note for it at the time, then the suspicion, founded on his declarations, was completely removed; for then it was shown how he had given it. The very indefinite word "give" was found to express the truth, and yet not to invoke the idea of a gift. This father seems to have been thinking of the instruction, which might be useful to many others: "Give not thy son power over thee whilst thou livest; for it is better that thy children should look to thee, than that thou shouldst look to their hands. When thou shalt end thy days and finish thy life, distribute thine inheritance:" Ecclus. xxxiii. 19-23. After the claimant's evidence was in, it was it that the contestants were called upon to meet. That could not be done by the loose declarations about giving, which were perfectly consistent with the claimant's evidence, but by directly meeting his evidence of a loan, and showing that it did not present the true state of the case. If he took a note from his son when he gave him the money, the transaction cannot be converted into a gift by such loose talk as we have here. We cannot say, from anything on our paper-book, that the court was wrong in granting the feigned issue. Jundgment reversed and a new trial awarded. Masser versus Bowen. A check drawn by one person in favour of another, and paid to the latter, is presumed to have been received on account of a debt shown to have existed at the time. The party alleging that it was not so received, must produce such proof of the account upon which it was made as will change the presumption. ERROR to the Common Pleas of Northumberland county. John Bowen brought an action of assumpsit against Jacob B. Masser. On the trial of this cause the plaintiff gave in evidence various indebtedness by the defendant on note, book account, &c., and closed. The defendant then offered in evidence a check drawn by himself in favour of the plaintiff, endorsed by and paid to him for $150. This was offered as evidence of a payment on the indebtedness to the plaintiff. It was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed at the instance of defendant's counsel. There was a verdict for the plaintiff for $310, and judgment entered thereon. The defendant then purchased this writ, and the rejection of the check was the only error assigned. Donnel, for plaintiff in error.-The production of a check drawn by defendant to the order of plaintiff, and endorsed by him, is evidence of payment: Chitty on Bills, *369; Egg v. Bardett, 3 Esp. Rep. 196; Aubert v. Walsh, 4 Taunton 293. Cancelled checks are prima facie evidence of payment of a debt: Fletcher v. Manning, 12 M. & W. 571. The presumption is, it (the check) is given in payment of a debt: Flemming's Executors v. McClain, 1 Harris 178. Packer and Rockafeller, for defendant in error. The opinion of the court was delivered by LOWRIE, J.-The plaintiff below having shown that the defendant was indebted to him, we must presume that a payment made to him by the defendant, after such debt accrued, was made on account of the debt. If it was really made on some other account, we must have some evidence of this before we can change the presumption. A check by the defendant to the plaintiff's order, endorsed by him and paid, is evidence that the amount of it was paid to the plaintiff on account of such debt as we know to have existed, and it cannot be excluded because the court may think it belongs to a [Masser v. Bowen.] different transaction. If the plaintiff gives evidence that it was given on another account, the jury must decide how the fact is. We think the check ought to have gone to the jury. Judgment reversed and a new trial awarded. William John Clark versus The Commonwealth. 29 129 147 17 29 129 154 168 29 129 181 22 29 129 The refusal of the court to discharge a prisoner on the last day of the second term after his arrest, under the 3d section of the Habeas Corpus Act, is essentially a habeas corpus proceeding, and does not come up with the record d 19 SC 628 on a writ of error taken by the prisoner after conviction and judgment. A prisoner, under that act, can only claim his discharge on the last day of the second term after his arrest, when there has been a competent and regularly constituted court, before which he could have been indicted and tried. The act was designed to prevent wrongful restraints of liberty growing out of the malice and procrastination of the prosecutor, but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself. Where the array of grand jurors was quashed at two successive terms after the arrest of the prisoner, for informality in selecting and drawing them, he was not entitled to be discharged. The statute requiring an addition to be given to jurors, is directory merely, and, to be a mark of identity, is properly written as it is commonly known in the community from which the juror is drawn. The addition of "Mill Boss" to the name of a juror will be presumed to designate his occupation as known and understood in the neighbourhood where he resides. The right of a president judge to exercise his functions within a county, attached by the legislature to his district subsequent to his election, cannot be questioned collaterally. The court will judicially take notice of the legislation by which he claims to exercise his office, so far as to hold him a judge de facto, and as against all but the Commonwealth a judge de jure. The right and powers of a judge de facto, with colour of title, can only be inquired into by quo warranto, at the suit of the Commonwealth. Burnell's Case, 7 Barr 34. ERROR to the Oyer and Terminer of Montour county. This was an indictment charging William John Clark and Mary Twiggs with the murder of Catharine Ann Clark, the wife of plaintiff in error. The indictment consists of four counts: The first count charges the defendants with the murder of Catharine Ann Clark, by mixing and mingling white arsenic with magnesia and water, the said defendants knowing the magnesia and water to have been prepared for the use of the said Catharine Ann Clark, and to be taken and swallowed by her. The second count charges the defendants with the murder of Catharine Ann Clark, by administering to her white arsenic. The third count charges the defendants with the murder of Catharine Ann Clark, alleging the mixing and mingling of white arsenic with magnesia and water by William John Clark, and that VOL. V.-9 29 207 29 129 277 129 33 SC 1599 29 129 226 1197 [Clark v. The Commonwealth.] Mary Twiggs was present, aiding and abetting. Defendants knowing the said magnesia and water to have been prepared for the use of said Catharine Ann Clark. The fourth count charges Mary Twiggs with having mixed and mingled the white arsenic with magnesia and water, and William John Clark with being present, aiding and abetting. The defendants were committed on the charge in May, 1857. The first term of the court of Montour county thereafter commenced on the third Monday of September, and the second term on the third Monday of December, 1857. At both these terms the array of grand jurors was quashed, but not on motion of the defendants. On the last day of the December Term, Clark by his counsel moved to be discharged under the 3d section of the Habeas Corpus Act, passed 18th February, 1785, but the motion was overruled. This motion was again renewed when called upon to plead to the indictment at February Term, 1858, and again denied. At February Term, 1858, the defendant Clark moved to quash the array of grand jurors, on the ground that Matthew S. Ridgway, one of the grand jurors on the venire, was returned without any addition of trade or mystery, estate or degree known in the law, but instead thereof has added after his name "Mill Boss." This motion was also overruled. The defendant Clark thereupon interposed the following plea to the jurisdiction of the court:- And now, February 16th, A. D. one thousand eight hundred and fifty-eight, William J. Clark, in his proper person, cometh into court here, and having heard the said indictment read, says that the said court here ought not to take cognisance of the felony in the said indictment specified; because protesting that he is not guilty of the same, nevertheless the said William John Clark says that the felony in the said indictment specified is triable in the Court of Oyer and Terminer of the county of Montour, and not elsewhere; that the court here purporting to be the Court of Oyer and Terminer of the county of Montour is not such court, competent for the trial of the said felony, because the Honourable Alexander Jordan, acting as president judge of the court here, is not now, nor ever has been, a judge of the Court of Oyer and Terminer of Montour county; he, the said Alexander Jordan, not having been elected a judge of the said court of Montour county, according to the provisions of the constitution of the Commonwealth of Pennsylvania; the county of Montour, at the time of the election of the said Alexander Jordan, if ever elected, formed no part of the judicial district over which he, the said Alexander Jordan, was elected to preside or act as a judge, but at the time of said election, the said county of Montour did belong to and form a part of the eleventh judicial district, composed of the counties of Luzerne, Wyoming, Columbia, and Montour, in [Clark v. The Commonwealth.] which the Honourable John N. Conyngham was duly elected president judge, wherefore he prays judgment, if the said court, now here will or ought to take cognisance of the indictment aforesaid, and by the court here he may be dismissed or discharged, &c. To this plea the Commonwealth demurred, the defendant joined in the demurrer, whereupon the court sustained the demurrer, and gave judgment that the defendant answer over. A separate trial having been granted, the defendant Clark was arraigned, and to the several counts in the indictment he pleaded not guilty, and on the 16th February, 1858, a jury was called and sworn, and on the 19th of the same month returned a verdict of guilty of murder in the first degree, and on the following day sentence of death was pronounced against him by the court. He thereupon applied for and obtained this writ of error, and assigned here that the court below erred in overruling the motion to discharge the prisoner on the 24th December, 1857; in denying the prisoner's application for discharge, when called upon to plead at February Term, 1858; in refusing to quash the array of grand jurors at February Term, 1858; and in overruling the plea to the jurisdiction. Robert F. Clark, for the prisoner.-The preamble to the act discloses what it was intended to accomplish. Before its passage the courts exercised a discretionary power to discharge, and the object of the enactment was to convert into a right what the court might grant as a favour. That right was a discharge at the second term if not indicted and tried, the same as if he had been tried and acquitted. The act makes its own exceptions. The array was not quashed upon his motion. All the facts came clearly and distinctly upon the record. The statute is a remedial one, and should be liberally and beneficially expounded in favour of the liberty of the citizen. The terms are plain and explicit, and appear to leave no room for construction. The argument ab inconvenienti can in such a case have no force. Is the operation of this act restrained by judicial construction? These may be classed under three heads: 1st. When the trial is impossible by the rules of law, as in the case of Martin Rinner, 16 S. & R. 304. 2d. When the trial is impossible by the act of God, as in the case of William Phillips, 7 Watts 366. 3d. When the delay is occasioned by the wrongful act of the defendant, as in Arnold and Others, 3 Yeates 263. Commonwealth v. Prophet, 1 Brown 135, is like the present, and there the prisoner was discharged: Commonwealth v. Chauncey, 2 Ash. 101. It is only when a statute is doubtful that an argument from inconvenience will have weight: 9 Bac. Ab. 240-255; 4 U. S. Con. Rep. 595. |