members being six. S., a member, wrote to councils his resignation, to take effect on the election of his successor. On the same day a written request for a special meeting to meet that evening and elect his successor was signed by S. and four other members, including the president, and handed to the burgess, who took no action in the matter. At the time specified in the first call, S. and three of the four other signers including the president met, sent word to the other members, who did not, however, attend, drew up and signed another call, addressed to the president and elected M. as S.'s

successor.

cil, to take effect on the appointment of my
successor. Hoping you will take immediate
action the same, and oblige,
"Yours truly, A. P. SNADER."
This resignation requests immediate ac-
tion on the part of council, it cannot be
properly said to be a mere prospective
resignation, a mere notice to resign at a
future date. Of course acceptance by
council was necessary to its consumma-
tion, and until its acceptance, the tender
or offer to resign would be revocable.

HELD, that the first call for a special meeting An acceptance may be made by entry constituted an acceptance of S.'s resignation in book, by vote or resolution of council, and his membership then ceased, and he was or by treating the place as vacant, and therefore disqualified from voting at any meeting, that the other three members who attended proceeding to the election of another to the special meeting did not constitute a legal fill it. Therefore, when the council issued majority or quorum, and the special meeting a call for a special meeting to consider was held without due and legal notice, and was therefore irregular, and the election of M. was illegal and void.

Quo warranto.

A. B. Hassler for relator. Brown & Hensel for respondent. November 16, 1895. LIVINGSTON, P. J.-It has not been shown to the court that the charter of the borough of Ephrata makes any provision for calling special meetings of council, for the filling of va cancies in its councils, caused by death, resignation, or otherwise, or specifies the number required to make a quorum for the transaction of business.

Among its "Rules of Order" are found the following:

and take action in regard to this resignation, and the nomination and election of some person to fill the vacancy, there was an acceptance of the resignation and a vacancy in the office. Mr. Snader was no longer a member of council.

There being a vacancy the Act of Assembly of June 1, 1883, Sec. 4 (P. L. 55), declares that "The members of Town Councils shall have power to fill any vacancy which may occur therein by death, resignation, removal from the borough or otherwise, until the next annual election for members of town council, when such vacancy shall be filled by electing a qualified citizen to supply the same for the balance of the unexpired term.

There being nothing in the charter, rules, or statute contrary to the common law rule, a quorum would be a majority of the whole number of councilmen of the borough of Ephrata.

No. 15. The regular stated meetings of borough council shall be the 1st Monday evening of each and every month. The hour of meeting from April 1st to September 1st to be at 8 o'clock; from There being as shown a vacancy, was September 1st to April 1st, at 7 o'clock. there a special meeting called to fill it in No. 14. "That the presiding officer accordance with Rule 14 of the Rules of shall call special meetings of council only Order of Ephrata Borough? If so, was on the request in writing of four of its such meeting attended by a majority of members, but in case of the absence of the members of council of said borough? the presiding officer, four members may and, if so, was the suggestor Joseph Mcof themselves call a special meeting if Vey elected by a majority of the members deemed necessary, but no business except of the borough council to fill the vacancy such as may be specified in the call shall occasioned by the resignation of A. P. be transacted." Snader.

The vacancy in the present case occurred by reason of the following resignation, viz.:

"EPHRATA, PA., Feb. 27, 1895. "To the members of the Ephrata Borough Council: "Owing to the pressure of business, I find that I cannot give that justice and attention to the interests of the borough as I should. I therefore tender my resignation as a member of coun

It appears from the admissions and testimony that Ephrata borough was duly incorporated on August 22, 1891, with a town council of six members.

That on February 27, 1895, A. P. Snader, then a member of said town council, resigned.

That, on the same day, a request for a

John B. Brugger and George F. Groff, who were then actual members of council, and A. P. Snader, whose seat was then vacant by his own act, and about to be filled by the election then being held. His resignation having been accepted, he had no right to vote. It is evident, therefore, that Joseph McVey, the suggestor or relator was not at said election duly and legally elected a member of the council by a majority of the town council, nor at a meeting held by a majority of the town council of the borough of Ephrata, and was not, as he suggests, a member thereof.

call for a special meeting of the town cil was vacant, and a meeting then assemCouncil, to be held (on the same evening) bled to fill it by the election of another at 7:30 p. m. in council chamber, was member. It was not, therefore, attended signed by five of the members, viz.: John by a majority of those who were, at that J. Baer. John B. Brugger, Geo. F. Groff, time, actual members of council-those A. P. Snader and George E. Mohler. who were present were only equal in We need not insert its contents here, be- number to those who were absent, and cause, after being signed, it was handed the seat vacant by resignation. No to the Burgess who had no authority to greater number was in attendance during call a special meeting of council; and for the meeting, there was, therefore no quosome reason which has not been stated rum, the meeting was not attended by a nor explained, pocketed, or pigeonholed majority of the members of the council of said request for a call for a special meet- the borough of Ephrata. Those present, ing, and refused to surrender it when re though not a quorum, proceeded to fill quested so to do. After this request had the vacancy occasioned by the resignation been thus disposed, and with no written of A. P. Snader. The relator, Joseph request, as required, having been written, McVey, was nominated, and was voted addressed or given to John M. Brugger, for by those present, viz.: John J. Baer, the presiding officer, whose duty it was, on proper request to call special meetings of council, said president of council, and one of the other councilmen, sent the town clerk, Mr. Bixler, to tell Messrs. Spangler and Mobler to come up, there was a meeting about to go on. This was on the evening of February 27, 1895, "probably between half past seven and eight o'clock, along there, or close to eight o'clock"-the other members of council were then assembled in the place of meeting. The president had no writ ten request of four members of council to call a special meeting of council when he sent Mr. Bixler to notify Messrs. Spangler and Mohler. The only written request he received to call a special meeting was written, Mr. Bixler says, after he went to see Spangler and Mohler, and after the other members had assembled. This special meeting was not. therefore, called by the presiding officer (who was not absent) by virtue of, nor in accordance with the requirements of rule No. 14 of the Rules of Order of the borough of Ephrata. Nor was notice given to all the members a reasonable time previously. If this meeting had been called as directed by the rules of order of the borough, and in reasonable time after notice to all the members, it was convened, so far as the contention here is concerned, for the purpose of filling a vacancy then existing in the council, caused by the resignation of A. P. Snader.

The meeting was attended by John J. Baer, John B. Brugger and George F. Groff, who were members of the council, and A. P. Snader, whose place in coun

After this so called special election on February 27, 1895. a regular meeting of the town council of the borough of Ephrata was held on Monday, March 4, 1895, at which, it is claimed, that the proceedings of the special meeting were read and approved, and, therefore, the election of the relator at said special meeting to fill the vacancy occasioned by the resignation of A. P. Snader was ratified

and confirmed.

The proceedings of the regular meeting of March 4, 1895, shows that council did not so understand it, but treated it as (it really was) no election, for their proceedings show, that at said regular monthly meeting on March 4, 1895, the following resignation of A. P. Snader, one of the regularly elected members of town council, was read.

"To the Members of the Ephrata Borough Town Council:

"Owing to the pressure of business, I find that interests of the borough as I should. I cannot give that justice and attention to the I therefore tender my resignation as a member of coun

cil, to take effect upon the appointment or elect- taken to payment to the beneficiary on ing of my successor. Hoping that you will take immediate action of the same, and oblige, the ground of pendency of the will contest is without merit. The claim now A. P. SNADER."

"Yours truly,

The resignation was accepted, an election was held, and a majority of the whole town council voted for and elected David B. Lefever a member of town council, to fill the vacancy caused by the resignation

of A. P. Snader. Mr. Lefever was noti fied, sworn, and took his seat as a member of council, and has since served

as

such, and we find his election legal and

valid.

It is adjudged that the relator. Joseph McVey, was not at a special election held February 27, 1895, for the choice of a member of town council of the borough of Ephrata, legally elected to fill a vacancy occasioned by the resignation of A. P. Snader, as suggested.

made is of itself a recognition of respondent's legal title and inconsistent with the continuance of that contest.

(2.) But the costs in that issue having been the result of this petitioner and others unsuccessful effort to set aside the will and for that reason charged against the contestants by order of this court; and this petitioner being admittedly irresponsible to his co-contestant, for whose share of the costs he is impliedly surety, being beyond the reach of process, it is only just that his share shall stand as security until they shall be satisfied; for asking equity he must first do equity and obey the order of this court.

It is not a valid objection to this mode It is further adjudged, that David B. of adjustment that it is collateral to the Lefever, the respondent, was, at the reg-proceedings in which these costs were ular stated meeting of the town council charged, and therefore without the jurisof the borough of Ephrata, held on March diction of this court. The contest over 4, 1895, at an election held for the choice of a member of said town council of said borough to fill the vacancy occasioned by the resignation of A. P. Snader, duly elected by the vote of a majority of the whole council, to fill said vacancy.

the will, and the distribution which followed, were but successive stages in the settlement of this decedent's estate within this court's exclusive jurisdiction; and it would be strange indeed if it be without the power to adjust the equities of the parties at this or any other stage, how ever, or whenever they may be presented; Grimm's Appeal, 109 Pa. 391. No court is less bound by rigid rules. It has full power to do equity in all cases where, as here, it has jurisdiction of the subject matter and the parties; Drennan's Ap peal, 118 Pa. 187; and having once taken cognizance of litigation it will dispose of every subject embraced within the circle of contest, whether the question be of remedy, or of distinct, yet connected. topics of dispute; Shallenberger's ApAllegheny Co. peal, 21 Pa. 337.

And it is further adjudged, that, said David B. Lefever, the respondent, having been so elected to said office, is entitled to exercise the rights, liberties, privileges and franchises thereunto belonging, and the same are allowed to him d ring the term for which he was so elected. And it is also further adjudged, that the costs of these proceedings shall be paid by Joseph McVey the suggestor.

ORPHANS' COURT.

O. C. of

Vogel's Estate.

Will-Contest-Costs.

Legacy pro tanto must stand as security for costs charged against legatee in unsuccessful

will contest.

Citation to enforce payment of legacy.
Joseph M. Friedman for petitioner.
William Hunter for trustee.

March 6th, 1896. HAWKINS, P. J.(1.) No appeal having been taken from the decree under which respondent re ceived the fund now in his hands, within the time limited by law, the objection

If, as must be conceded, attachment would lie to enforce the payment of these costs, why not sequestration of funds already in the hands of the court derived

from the estate in whose administration they were incurred? Petitioner's liability being undoubted, it is obviously immaterial how it is satisfied. What may be done indirectly may surely be done direc ly; and in either event this court must have jurisdiction. It would have been per haps better practice to have presented the matter of adjustment of costs at the audit; but the petitioner, being himself in de

The Court's opinion gives the facts.

E. E. Allen for petitioner.

fault and contempt, cannot take advantage of the irregularity. Even where a fund has actually been paid over under a decree, a chancellor may compell repayment on the ground of mistake; Palmer v. Truby, 136 Pa. 556; and therefore D. Koller, who makes this application, was

with much more reason where as here the

N. S. Ross, contra.

May 20, 1896.-STEWART, J.-Isaac

fund is, by virtue of successive stages in of Shrewsbury Borough, at an election duly elected constable of the South Ward the administration of a trust arising under held on the 18th day of February, 1896, one instrument, still in the grasp of the and claims the right in pursuance of said court which made the original decree, election to give bond and be sworn and may the equities of the parties be adjust take the emoluments of said office for ed. The injustice as well as the inexpediency of granting unconditional relief Act of Assembly passed and approved a term of three years, in pursuance of the are apparent; for its practical effect must the 26th day of June, 1895. To this Wm. not only be to produce unnecessary cir- H. Jameson objects. He was duly electcuity of action; but in view of petitioner's ed constable of the same ward on the confessed irresponsibility, to subject other third Tuesday of February, 1895, for a parties, who are without default, to the risk term of three years, under the Act of the of liability for the costs which had been 14th of February, 1889, P. L. 6. imposed on petitioner. He who comes into court asking equity must come with

clean hands.

The trustee would have been derelict in his duty had he failed to call the attention of the court to the petitioner's default. As a trust officer knowing the facts he was bound to contribute his mite toward the administration of justice. It would be no answer to a charge of his neglect for him to say that he had not been asked. Loss may arise from acts of omission, as from those of commission. "Omittance is no quittance."

QUARTER SESSIONS.

Koller's Petition. Constable-Election of-Act of 1895.

Petitioner claimed to be elected Constable under the Act of 1895, on February 18th, 1896, and asked to be sworn in. Respondent objected on the ground that he had been elected Constable the previous year, under the Act of 1889, for the term of three years. HELD, that petitioner is the duly elected officer.

The legislature had two purposes in view in the passage of the Act of 1895: first to remove the dobut that had arisen under the Act of 1889, as to whether it applied to high constable, and second, to fix definitely the time for the election, and duration of the term of the office, of constable and to make the same uniform throughout the townships and boroughs of the State.

The legislature has the right to legislate a man out of office. It may diminish the term, or abolish it altogether, but can not extend it, during incumbency.

Manifest by both men can not hold the same office and therefore the court is invoked to decide between them.

The Act of the 14th of February, 1889, reads, including the title, as follows:

"An act authorizing the election of constable for three years:

SEC. I. Be it enacted, &c. That the qualified voters of every borough and township, and when a borough is divided into wards, of every ward in the Commonwealth of Pennsylvania, shall on the third Tuesday of February next and trianually thereafter vote for and elect a properly qualified person for constable in each of said districts who shall serve for three years.

SEC. 2. All acts or part of acts inconsistent herewith are hereby repealed."

It was decided that this act took effect and applied to the election of constables for the first time in 1890; Com. v. Erdman, 1st Dist. Rept. 710.

It made no provision for the term of office of high constables in boroughs and therefore the question arose as to whether the term of office of high constable was intended to be provided for and extended and it was held that it was; Com. v. Atticks, 4th Dist. Repts. 310.

This was decided by Judge Simonton, of Dauphin county, in a lengthy and Petition of Isaac D. Koller, to be quali- learned opinion, filed April 3, 1895, while fied as constable.

the legislature was in session.

On the 26th of June, 1895, an amend ment to the Act of 14th of February, 1889, the title of which is significnat was passed. It is as follows:

"An act to amend an act entitled 'An act to authorize the election of constables for three years,' approved February 14, 1889, by providing for the election of a high constable in each of the boroughs of this Commonwealth for three years and by correcting the ambiguity as to the beginning of the term of office under said act."

SEC. I.

Be it enacted, &c., (omitting the recital of the Act of 1889.) "That the qualifie voters of every borough and township, and where a borough is divided into wards, of every ward in the Commonwealth of Pennsylvania, shall on the third Tuesday of February, 1896, and trianually thereafter, vote for and elect a properly qualified person for constable in each of said districts and a properly quali fied person for high constable in each of said boroughs, and the person so elected shall serve for three years.

It is plain that the legislature had two purposes in view in the passage of this act: first, to remove the doubt that had

raises the question of whether or not the legislature had this power. It was concede at the argument that i had.

ART III. SEC. 13 of the Constitution provides that no law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment. It will be observed that there is no inhibition against diminishing the term of office, and it has been held that it may be abolished altogether; Donohugh v. Roberts, 11 W. N. C. 186; or may be curtailed and was so held by a very able judge, Endlich, under the act of February 14. 1889; Reading's Constables, 8 County C Rp. 101. And also by the Supreme Court; Com. v. Schneipp, 166 Pa. 401; Com. v. Weir, 165 Pa. 284.

The bond of Isaac D. Koll r, the constable elect, is therefore approved and he is directed to present himself for qualification, and the objections to his giving bond and qualifying are over ruled and dismissed.

Abstracts of Recent Decisions.

(Cases not otherwise designated are Su

arisen under the act of 1889, as to whether preme Court cases.)

it applied to high constable, and second, to fix definitely the time for the election, Annexation of lands to third class city-and duration of the term of the office, of Meaning of words "taxable inhabitants.” constable and to make the same uniform-In prodeedings for the annexation of throughout the townships and boroughs unincorporated lands to a city, an amendof the State. The legislature fixed the ment of the draft used in the proceedings time for the election definitely, the third before city councils may properly be alTuesday of February, 1896, and this lowed by the court The words "taxable time was fixed eight months before that inhabitants," as used in the Act of May election, so that there was ample notice 23, 1889, Article III, Section 1, mean of their purpose. The question which those inhabitants who may lawfully be arose under the act of 1889, namely taxed. The best evidence as to who are whether the constables elected under it taxable inhabitants is the assessor's list; were to be elected in February, 1889, or 1890, could not arise. That act, which was approved on February 14, 1889, said "the third Tuesday of February next," while this reads the third Tuesday of February, 1896. It seems clear therefore that the legislature intended that all con stables in boroughs wards and town ships should be elected on the third Tuesday of February last. It follows from this that those so elected are entitled to be sworn and where no election took place there is now a vacancy.

The effect of this is to legislate the contestant Jameson out of office, and this

but this is not conclusive and may be supplemented by other evidence.- Walther's Appeal, (Delaware Co. Q. S.) 6 The Weekly Reporter 321

Indictment-Limitation.- -Where an indictment is found more than two years after the perpetration of the offence, it is incumbent on the commonwealth to show that the case is within the proviso of the act of March 30, 1860, Sec 77, P. L. 450. The commonwealth, having proved that the defendants were strangers in the vicinity, that immediately alter the perpetration of the offence they fled, and that they could not be found after due