66

The facts, as they appeared at the trial, were "The question is, who had the right of posas follows: Plaintiffs are bankers in New York session at that time (June 8, 1880). City. On April 9, 1880, Lissburger was the I charge you that if you find that on the 9th day owner of the iron in dispute. On that day it of April, 1880, Hallgartens gave $5000 cash and was lying in the ship which had brought it from surrendered iron to the value of $10,000, and Europe, in New York Harbor. Lissburger had took from Lissburger this Starrs's receipt, by virimported this iron to fill a contract he had made tue of which he agreed to surrender bills of lading with the principals of E. Samuel," a com- to Hallgartens, then your verdict should be for mission house in Philadelphia. Lissburger told plaintiff. If this took place, then there was such plaintiffs that this iron was sold to parties in a right of possession in Hallgartens as must prePhiladelphia and obtained from them advances vail against defendants. I decline to affirm any to the extent of about $15,000. In return, he and all of defendants' points." promised that they should receive the proceeds of the sale of this iron, and gave them his draft, dated April 9, 1880, on E. Samuel & Co., for $14,400 payable on demand, and the following instrument:

NEW YORK, April 8, 1880. Received of Mr. H. Lissburger his order on Ship "Palmyra" for lot Charcoal Pig Iron said to weigh 300 tons to be transported to Philadelphia as fast as loaded and bills of lading for same to be handed Messrs. Hallgarten & Co., when this receipt will be surrendered.

F. STARRS, Agt. Starrs was the agent of the transportation company which was to carry the iron to Philadelphia. The iron was accordingly shipped to Philadelphia, and bills of lading issued to "E. Samuel & Co., or their assigns," which bills of lading were sent to Philadelphia by Lissburger, together with bill for the iron, in which he was named as vendor.

The iron arrived in Philadelphia and came into the possession of the defendant. It had been sold under a warranty that it should stand a certain analysis, which it failed to do, and the purchasers refused to take it. It lay in defendants' yard till June 8, 1880, when Lippincott & Co. claim to have attached it. Plaintiffs claimed that the transaction of April 9, 1880, between them and Lissburger vested the title and right of possession of the iron in them, and replevied the

same.

Verdict for plaintiffs and judgment thereon, whereupon defendants took this writ, assigning for error the refusal of their points, and the portions of the charge of the Court above set out. John Samuel, for plaintiff in error.

To maintain replevin there must be a right of property and of immediate possession.

Lester v. McDowell, 6 Harris, 91.

Reinheimer v. Hemingway, 11 Casey, 438.
Lake Shore R. R. v. Ellsey, 4 Norris, 285.
Houser v. Kemp, 3 Barr, 208.

Winslow v. Leonard, 12 Harris, 14.
Sneathen v. Grubbs, 7 Norris, 147.

If the Philadelphia vendee of the iron had taken it, and had refused to accept Lissburger's draft, or to have paid for the iron, could it be pretended that Hallgartens could have sued for the price?

Morgan & Lewis, for defendants in error.

The general ownership of a title to property is not necessarily determined in an action of replevin, but rather the legal right of possession. Warner v. Mathews, 18 Ill. 83.

Hunt v. Strew, 33 Mich. 85.

Johnson v. Carnley, 6 Selden (N. Y.), 570.
Wells on Replevin, ?? 96, 97, and 107.
Rogers v. Arnold, 12 Wend. 31.
Clemson v. Davidson, 5 Binney, 392.
Shearick v. Huber, 6 Binney, 3.
Seibert v. McHenry, 6 Watts, 302.
Harlan v. Harlan, 3 Harris, 512.
Herdie v. Young, 5 Smith, 177.

February 11, 1884. THE COURT. A right to the immediate possession of a chattel constitutes Defendant requested the Court to charge the a sufficient property therein to support an action jury, inter alia, that the advances by plaintiff to of replevin. The attaching creditors of LissLissburger, together with the delivery by Liss-burger & Co. occupy no higher ground than that burger to plaintiffs of the carrier's receipt and of the latter. (Good v. Grant, 26 P. F. S. 52.) the draft on Samuel & Co. gave no such title to If, then, the defendants in error were entitled to plaintiff as is requisite to maintain this action, the possession of the pig iron as against Lissburbut merely entitled them to the proceeds of the ger & Co., the plaintiff in error is in no position sale of said iron. That the testimony does not to resist a recovery. The evidence of a right show any title or right of possession in plaintiffs of possession in Hallgarten & Co. was ample to sufficient to maintain this action, and the verdict submit to the jury. We discover no error in the must be for defendant. record.

The Court charged the jury, inter alia, as follows:

Judgment affirmed.
PER CURIAM.

T. R.

-Act of January 30, 1874—What necessary be allowed to vote without making preliminary to qualify non-registered electors-Costs-proof.

March 31, 1884. THE COURT. The Con- | by the election board, and at the close of the stitution defines the qualifications of electors, election, they shall be inclosed, with the list of and declares that every person who possesses voters, tally-list, and other papers required by them shall be entitled to vote at all elections. law to be filed by the return judge with the proAnd it provides that "all laws regulating the thonotary, and shall remain on file therewith in holding of elections by the citizens or for the the prothonotary's office, subject to examination registration of electors shall be uniform through-as other election papers are." (Section 10.) out the State, but no elector shall be deprived of the privilege of voting by reason of his name not being registered."

This statute does not impinge the elector's constitutional right. On the day of election, if unregistered, he may produce the affidavits, his It has been often said that the Legislature own being sufficient, save as to residence in the must prescribe regulations to insure the orderly district, and to that the affidavit of one elector, and free exercise of the elector's right; that with his own, suffices. The public welfare is such regulations must be subordinate to the promoted by regulations for such proof at the right, and not abridge or impair it; and that time the vote is offered as will prevent unqualiany statutory regulation that would change the fied persons from voting and thereby defeating qualifications prescribed by the Constitution, or the choice of the electors for public officers. add a new one, would be invalid. Not only is Hence the mandatory provisions that the elecit competent for, but it is the duty of the Legis- tion officers shall permit no man to vote whose prescribe the mode of ascertaining who name is not registered, until he produces the are the qualified electors; their rights are con- required proof, and that any person claiming the served by the exclusion of the votes of other right to vote whose name is unregistered shall persons, and the interests of the State demand produce the proof at the time he offers to vote. exclusion of all who are unqualified. The Con- In absence of registry of the name of the voter stitution contemplates legislation to provide the and affidavits, rejecting the vote by the officers mode of ascertaining who are the electors, and is an imperative duty. Upon conviction of directs that all laws for that purpose shall be neglect of that duty they shall be guilty of a uniform, and that none shall be deprived of misdemeanor, and may be punished by fine and voting by reason of his name not being registered. There is no prohibition of requirement that an unregistered person shall make proof of his qualifications before his vote shall be admitted.

The Act of January 30, 1874, provides for the registry of electors and the furnishing of lists of their names to the proper officers on the morning of the election. "And no man shall be permitted to vote at the election on that day, whose name is not on said list, unless he shall make proof of his right to vote, as hereinafter required." (Section 3.)

imprisonment. By the natural meaning of the language of the statute, no unregistered person can lawfully vote until he produces the affidavits. All parties agree that the votes of persons whose names are not registered and who produced no affidavits are prima facie illegal. Shall such votes be counted as legal, on the trial of a contested election, upon proof that they were cast by persons who possessed the qualifications of an elector? This is the only question raised by the assignments of error which this Court can consider, for questions not appearing in the record are not subjects of review in this proceeding.

"On the day of election, any person whose name shall not appear on the registry of voters, Under the Act of July 2, 1839, it was the and who claims the right to vote at said elec- duty of inspectors to require proofs of the right tion, shall produce at least one qualified voter to vote of every person whose name was not on of the district as a witness to the residence of the list of taxable inhabitants. This duty was the claimant in the district in which he claims to be a voter for the period of at least two months immediately preceding said election, which witness shall be sworn or affirmed, and subscribe a written or partly written and partly printed affidavit to the facts stated by him, which affidavit shall define clearly where the residence is of the person so claiming to be a voter; and the person so claiming the right to vote shall also take and subscribe" an affidavit stating such facts as show that he has the necessary qualifications. "The said affidavits of all persons making such claims, and the affidavits of the witnesses to their residence, shall be preserved

very often disregarded by the election officers, and although they were liable to indictment, they nearly as often escaped prosecution. Instead of demanding proof on oath according to law, frequently one of those officers would vouch for the person offering to vote, and thereupon the board would receive his vote—a practice denounced as illegal and dangerous, and never sanctioned by the Courts. The requisite proof was merely oral. Under that Act, it was held that if a person was permitted to vote without the proofs, his vote should not be rejected on a contest, if it were proved that he was actually a qualified elector. Doubtless, the

action of the election officers and the ruling of, construed that votes of unregistered persons the Courts resulted from the sections (64 and 67) who produce no affidavits shall be counted as which only obligated the persons claiming the legal on proof in court that such persons had the right to vote to adduce the prescribed proofs "if qualifications of electors, it will be little better required." That Act proved very inadequate than the Act of 1839, and the evil of fraudulent for security of the electors against frauds. A voting will grow continually. Illegal votes, in Judge who had opportunity to observe its effi- such case, may be cast by persons whose names ciency, in 1858, remarked, "In some districts were not on the registry, and who commit no of the city-plague-spots-fraudulent voting is perjury, for they swore to no affidavits. Adthe rule, and honest voting the exception." If herence to the statute, if inconvenient to the that was an exaggerated statement, still there elector, is a safeguard against illegal votes. was so much evil as to lead to the enactment of There is no presumption that all men are a registry law on April 4, 1868. That Act was electors. It is reasonable that there be proof of declared unconstitutional on the ground that it the right of every claimant before he exercises deprived persons of their votes who moved into it. The State is wronged by evasion or practical an election district more than ten days prior to nullification of the law. A proper construction an election, but less than twenty (Page et al. of the statute concerns not alone the individual v. Allen et al., 58 Pa. St. 338). At the next citizen, but all. The statute makes no provision session of the Legislature the registry Act of by which an elector may prove his qualifications April 17, 1869, was passed, with provisions for after casting his vote; it demands the proof the city of Philadelphia differing in important before. particulars from those for other parts of the The provisions of the Act of 1869, which State. In that city an unregistered person could were applicable to all parts of the State, except not vote. The inequalities in that Act, the Philadelphia, contained like prohibition of the great difficulty for many persons to procure reg-votes of unregistered persons, unless they proistration under its provisions for Philadelphia, duced affidavits, as the Act of 1874. It was and if unregistered the consequent deprivation decided by Judge DANA, in an able opinion, that of their votes, created much discussion respect- the plain and mandatory requirements of that ing its constitutionality, but it was decided that Act could not be dispensed with by the election the Act was valid (Patterson et al. v. Barlow et al., 60 Pa. St. 54). Inequalities and unjust discriminations and deprivation of the right of an elector when his name is omitted from the registry by accident or design, in laws for the registration of electors, were terminated by the adoption of the Constitution of 1874. The Act of 1874 is in pursuance of section 7 of Art. VIII., already cited. It seems to have given satisfaction to the public wherever it has been faithfully observed by the officers entrusted with its execution.

officers, that if they received the vote of a person whose name was not on the list without the preliminary proof which the law makes an essential prerequisite to its reception, such vote is as illegal as if the voter had none of the legal qualifications; and that it was not competent for the Court to assume the duties of election boards and receive evidence on the trial which ought to have been, but was not, produced to the election officers (In re Contested Election of School Directors of Pittston, 3 Luz. L. Reg. 10). This accords with the views of Mr. Brightly, as expressed in his notes in Leading Cases on Elections, 453, 492.

Some of the salient points of the Act of 1874 for remedy of the defects of the Act of 1839 and the evils which had grown up, have been In Griffith's Case (9 Luz. L. Reg. 197), it is remarked. One of them is, oral evidence of a apparent that the decision of the learned Judge person's residence is inadmissible. And the was based on his view of Wheelock's Case (82 affidavits shall be inclosed with the other papers Pa. St. 297; S. C., 3 WEEKLY NOTES, 163). and returned to a public office, subject to exam- The petition in the latter case set forth, inter ination. Thus it is provided that on the registry alia, that there was no copy of the corrected and in the affidavits kept in a public office may assessment or registry of voters present at the be found the prima facie evidence of the right election whereby the names of the resident voters to vote of every person whose name is on could be ascertained, that two hundred and eight the list of voters. Such evidence is uninviting votes were illegally and fraudulently received by to contests and vexatious litigation. If not the election officers from persons whose names found when it ought to be, there is strong are not on any list or registry of voters present inducement for the defeated candidate to contest at the election and who did not make any proof the election. This case, with its multitude of witnesses, heavy costs, and hundreds of prima facie illegal votes, illustrates the consequence of violating the statute. If the Act of 1874 be so

of their right to vote as required by law of persons claiming to vote whose names do not appear on the registry of voters at such election. A motion to quash was made, one of the grounds

statute authorizing election officers to receive a vote on their own knowledge of the qualifications of the person who offers it, such judicial construction nullifies the law made to prevent fraudulent voting.

being that there was no allegation that any per- Ihibition of the statute is directory, notwithstanding son voted at said election who was not duly the express negative terms (Clark v. Robinson, 88 registered as required by law. It was well said Ill. 498). Unless there is some provision in the by the Court below that the question presented by the petition is whether the fact that no copy or list of the voters was present at the election board on the day of election, makes the election void and requires the poll to be set aside. That is the question which was decided, and all that could be affirmed in this Court on the certiorari, There was no allegation that a registry had not been duly made, or that anybody voted whose name was not on the list of registered voters, or that any voter knew that the list was not present. It is not the case of unregistered persons voting without producing affidavits, but of registered persons voting where the officers neglected their duty.

Decisions in other States where the enactments regulating the registration of electors and the holding of the elections are unlike our own, cannot aid in the construction of the Act of 1874. The decisions in cases arising under this Act, and the Act of 1869, by the Courts of Common Pleas and Quarter Sessions are entitled to careful consideration, though revealing contrariety in their conclusions.

legal at a subsequent investigation in the Courts.

We are of opinion that it is the imperative In Wisconsin the provisions of the law for duty of an elector whose name is not on the list registration of voters, and prohibiting unregis- of registered voters to produce the required tered persons from voting at the annual elections affidavits at the time he offers his vote, and that unless they produce proofs, are similar to those the election officers have no power to waive the now in force in this State. There it has been production of the essential proof. And the vote ruled, in an elaborate opinion, that the election of such person offered and received without the officers cannot receive the vote of an unregis-requisite affidavits is illegal, and cannot be made tered person who furnishes no affidavits, and if they cannot, it cannot afterwards be received and counted by the Courts. Also, that the statute is negative, and negative words will make a statute imperative (State v. Hilmantel, 21 Wis. 566). Where there was no registry of the voters of a town, and none of the persons who voted there at an election furnished the affidavits required by law to entitle the vote of an unregistered elector to be received, the whole vote of the town was rejected (State v. Stumpf, 23 Wis. 630). But it was held that where the election officers at an election had and used a defective and invalid registry list as if official and valid, the voters whose names were on such de facto registry list were not bound to inquire whether such registry was made in the manner prescribed by law, and their right to vote was not impaired by the fact that the registry was not legally made and that they did not furnish other proof of their right as if unregistered. Such case was considered unlike that of an unregistered person when the registry had been duly made, or where there was none (State v. Wood, 38 Wis. 71).

The Constitution contemplates that the electors shall be ascertained previous to the receiving of their votes, not that all men, qualified and unqualified, may cast their ballots, and the legal be separated from the illegal after the election. When an elector's name has not been registered, upon producing the prescribed affidavits to the election officers they shall receive his vote. He cannot lawfully vote without the proof, they commit a crime if they receive his vote without. The law deprives no elector of his right of suffrage. If his vote be thrown out of the count because it was offered and received in violation of law, the deprivation results from his own wrongful act. The first and second assignments of error must be sustained.

The judgment of the Court of Quarter Sessions is reversed, and the record is remitted for further proceeding. Opinion by TRUNKEY, J.

E. A. B.

April 9, 1884.

Coffin & Hurlbut's Appeal.

Limited partnership-Confession of judgment-
Act of March 21, 1836—Debtor and creditor.

The registry law in Illinois forbids the reception of votes from unregistered persons without Jan. '84, 267. proof of their qualifications, but it is so construed that if the voter was unchallenged the presumption is that he was a legal voter, and so known to the judges of the election, and his vote shall be counted in the trial in a contested election. There was no attempt to support that construcIn limited partnerships the firm's assets, and particution by reason or authority. (Dale v. Irwin, 78 priated by law to the payment of partnership debts, which larly the special capital contributed, form a fund approIll. 172). In a later case the ruling in Dale v. fund cannot be withdrawn or diverted, either directly or Irwin was approved on the ground that the pro-indirectly, to the detriment of the firm's creditors, because