tional requirement of notice and opportunity to be heard before judgment is to be read into it, as, under Rutherford's Case, 72 Pa. 82, it may be read into a statute, and as in Shriver v. Stephens, 20 Pa. 138, it in effect was read into the Act of 1842. There having been in this

delinquent owner as other debts are collected by law. The latter Act differs from the former with respect to the action of the viewers in that they report to a justice of the peace of the county and in their report designate the points and distances of the fence. * * * It is not necessary that their report be pre-case no notice to and no personal attendpared at the time of the view, nor that all sign at one time. It is only essential that their deliberative conclusions be agreed upon while they are together."

ance by defendant, the proceeding was void and cannot be made the basis of any claim against defendant."

The question then arises whether or But there is one question upon which not the visit of the viewers to Mr. Wolf, it seems to me this whole case turns. In after they had gone over the ground and Shriver v. Stephens, supra, it was de- viewed it and partially made up their decided that "a party whose rights are to cision, was a voluntary attendance by be affected should have notice of the him and a participation in the proceedproceeding." "A formal appearance of ings. It seems to be that it cannot be so record, and more certainly an actual ap- construed. The evidence would indipearance and participation in legal pro- cate that he declined to have anything to ceedings, waives all irregularities in pro- do with it, and their calling upon him at cess and notices and even want of formal notice": Reid v. Clendenning. 193 Pa. 406; McCormick's Administrator v. Irwin, 35 Pa. III. But it is not pretended in this case that any such participation was had. In Scheidy v. Huey, 18 Dist. Rep. 967, Judge Endlich held We, therefore, make the rule for that, "in proceedings for the erection of judgment non obstante veredicto absoa partition fence under the Act of April lute, and enter judgment in favor of the 14. 1905, P. L. 162, notice of the view defendant. by the township auditors must be given to the defendant, although the statute does not expressly require such notice."

that time was certainly not giving him an opportunity to call his witnesses and prove his case before them. For this reason, I am of opinion that the proceeding was ineffectual and not sufficient to sustain the present action.

Schuylkill Co.

Hannon v. Schilbe

Affidavit of defense raising questions of law-Set-off before justice of the peace-Act of March 20, 1810, 5 Sm. L. 161-Act of July 7, 1879, P. L. 194.

In his opinion, he says: "That the plain-C. P. of tiff's claim, in so far as it rests upon the Act of 1905 and the proceeding had under it, cannot be sustained because of want of notice of the fence view to the defendant is clear from the decision in Shriver v. Stephens, 20 Pa. 138. That case involved a similar claim under the Act of March 11, 1842, P. L. 62, which, like the Act of 1905, omitted to provide for notice of the view to the party to be charged with the cost of repairing or building a line fence. It was decided that, notwithstanding the statute pre-of law must confine such questions to those scribed no notice, it must, in order to appearing in the statement of claim. make the proceeding lawful, be given, The defendant may not set off more than and that, in the absence of it, unless the one hundred dollars before the justice of the party to be affected attended voluntar- L. 161 is not amended in this respect by the ily, the proceeding was void. Obvious-Act of July 7, 1879, P. L. 194. ly, the same principle applies to proceedings under the Act of 1905. Its application does not necessarily involve a question of the constitutionality of that Act. The common law and constitu

An affidavit of defense raising questions

peace and the Act of March 20, 1810, 5 Sm.

Motion for judgment.

J. O. Ulrich, for motion.

R. J. Graeff, contra.

February 16, 1920, Berger, J.-This law to sustain a recovery was in the nais an appeal from a justice of the peace. ture of a demurrer and might be disIt is provided in such cases by our Rules posed of as such. The question for deof Court that the plaintiff shall file his termination, therefore, is whether this statement of claim in conformity with affidavit of defense filed under the Practhe provisions of the Practice Act, nine- tice Act in lieu of a demurrer sets out teen fifteen, and that all subsequent that which would have been good pleadings shall conform with that act. ground of demurrer prior to the passage The plaintiff filed his statement, to of that Act. In Wyoming County v. which the defendant replied by an affi- Bardwell, 84 Pa. 104, Sterrett, P. J., davit of defense, purporting to raise a said: "A demurrer to a declaration or question of law, under Section 20 of the statement arises on its face and is never Practice Act, which has been set down founded on matter collateral to the for hearing. pleading which it opposes." The facts alleged by the defendant in his affidavit of defense do not arise upon the face of the plaintiff's statement of claim, but

a

The plaintiff's statement sets out cause of action against the defendant, J. A. Schilbe, upon a book account for are founded on a collateral matter $206.45, for work done and materials which requires testimony to establish it. furnished in the years 1915 and 1916. Were we to treat the affidavit of defense The defendant, in his affidavit of de- as though it raised a question of law, we fense alleges that he brought suit Sep- would be obliged to assume the truth of tember 13, 1917, against the plaintiff in the averments contained therein without this action, Michael F. Hannon, before proof. In short, the affidavit of defense Samuel R. Beard, a justice of the peace in this case is in the nature of a speakin the borough of Tamaqua, and recoving demurrer: Wright v. Weber, 17 Pa. ered judgment against him in the sum Superior Ct. 451, and for that reason of $192.87, which sum he collected by execution. It is further alleged that the failure of Hannon to set off his claim in

cannot be sustained.

The contention of the defendant that

the prior action brought by Schilbe the Act of July 7, 1879, P. L. 194, which against him, is a bar to his recovery un-enlarged the jurisdiction of justices of der the provisions of Section 7 of the the peace from matters which were not Act of March 20, 1810, 5 Sm. L. 161, above one hundred dollars, as provided which provides in part as follows: by the Act of 1810, supra, to matters "That a defendant who shall neglect or which were not above three hundred refuse in any case to set off his de- dollars, also increased to like extent the mands, whether founded upon bond, amount which the defendant, under pennote, penal, or single bill, writing obliga-alty of losing his claim, was obliged to tory, book account, or damages, on as- set off against the plaintiff by the provissumption against a plaintiff, which shall ions of Section 7 of the Act of 1810, cannot be sustained. We may concede lars, before a justice of the peace shall that the effect of the Act of 1879 was to be and is hereby forever barred from re- give a justice of the peace jurisdiction to covering against the plaintiff by any af-entertain a set off not exceeding three ter suit." hundred dollars in amount, but it does

not exceed the sum of one hundred dol

Section 20 of the Practice Act, nine-not follow, in our opinion, that the deteen fifteen, is partly declaratory of the fendant in in consequence thereof was law as it existed at the time of its pas- obliged to set off a counterclaim against sage, for it had been held in Pittsburgh the plaintiff in excess of one hundred v. Pittsburgh Railways Co., Appellant, 234 Pa. 223, that the sufficiency of a plaintiff's statement of claim might be raised by demurrer, and in Sparks v. Glass Co., 16 Pa. Superior Ct., 119, it had been held that a suggestion contain- And now, February 16, 1920, the deed in an affidavit of defense that the fendant's affidavit of defense is overstatement of claim was insufficient in ruled.

dollars under penalty of losing the claim. See Gillun v. Kahnweiler, 10 Lane. Law Rev. 397. For the above stated reasons the affidavit is insufficient.

Q. S. of

In re Charge of Polling Place

Schuylkill Co. a justice of the peace. The seven councilmen and also said Nirosky, secretary of the council, signed the petition. The county commissioners took prompt action and changed the polling place as of October 10, 1919, twelve citizens of requested in said petition. Under date the borough, in a separate paper, addressed to the county commissioners, joined with the members of the town council requesting the change from Mrs. Kelly's house to Squire Nirosky's office, but the change had then already been made by the county commissioners.

Polling place-Acts of April 14, 1903, P. L. 187; July 8, 1919, P. L. 769; May 18, 1893, P. L. 106; April 17, 1866, and June 13, 1883, Purdon 1318.

The act of April 14, 1903, P. L. 187 authorizes the county commissioners to change a polling place and the act of July 8, 1919,

P. L. 769 requires them to give the occupant or owner of the polling place notice before the change is made.

The act of May 18, 1893, P. L. 106 is repealed by the act of July 8, 1919, P. L. 769. The acts of April 17, 1866, and June 13, 1883, 2 Purdon, 1318 provide for a change by the

court when an exigency exists.

Petition for change of polling place.

R. R. Koch, for petition.

A. L. Shay, contra.

The petition now before us is signed by one hundred and eighty resident voters of the borough, in which the total number of registered voters is three hundred and eighty-seven. The petitioners said, "That it is the desire of a majority of the voters of said borough to have the polling place in the hose house of the volunteer fire company of the Borough of New Philadelphia, which is situate on the north side of MacCoomb Street in said borough, for the following reasons: (a). That the said hose house is more conveniently either the house of said Mrs. P. J. Kellocated for a majority of voters than

February 9, 1920, Koch, J.-The petition was presented to the court only or said P. J. Nirosky; (b) That said Monday, the 20th of October, 1919, and it was ordered that said petition be filed in the office of the Clerk of the Courts and that the County Commissioners be notified that the same would be acted upon within five days from service of said notice. On the 24th of October, the County Commissioners filed a deArgument was heard on the demurrer on the following Monday, and on the same day the demurrer was overruled and the County Commissioners given until the 10th of November, 1919, to file an answer to the petition.

murrer.

From the petition, the answer and the evidence, we find: For a number of years prior to October, 1919, the polling place in said borough was in the house of Mrs. P. J. Kelly; that on October 3. 1919, Mrs. Kelly, in writing, requested the county commissioners to remove the polling place from her house, and, on the same day, the borough council addressed a petition to the county commissioners praying that the polling place be fixed in the office of Pius J. Nirosky,

hose house contains better accommodations and facilities, as to room, lighting, ventilation and all other respects for properly conducting an election than either the house of said Mrs. Kelly or said P. J. Nirosky; (c) That a majority of the voters desire that whatever rental is to be paid for the use of a polling place shall be paid into the borough treasury, said fire company having election was held on the 4th day of Nono separate treasury." In 1919, the vember.

New Philadelphia is a compact borough and voters have not far to go to a polling place whether it be at Squire Nirosky's or the hose house. house will furnish more room for conThe hose ducting an election than the room in Squire Nirosky's house, where one witness said they had to keep the door open for air when the election was held on the 4th of November. All things considered, the hose house seems to be the better place of the two for conducting an election.

As a

ceeding to compel them to deliver the election paraphernalia at the old place would seem to be the proper remedy." Polling Place, 10th Division, supra.

warrant for their action in of the qualified electors thereof, objectchanging the polling place, the county ing to such change of the polling place." commissioners point to an act entitled The court of quarter sessions of Ches"An Act relating to change of polling- ter County held in 1910 that the act of place and authorizing the county com- 1903, supra. relates to election districts missioners to change the same," ap- in townships only: Change of polling proved the 14th day of April, A. .D. place in Oxford, 19 D. R., 782. Where1903, P. L., 187. In the first section we as the court of quarter sessions of Philfind: "That it shall be lawful for the adelphia held in 1916 that the act apcounty commissioners of any county of plies to every election district in the this Commonwealth, at any time at state: Change polling place in 10th Dileast three weeks prior to any general, vision, 3rd Ward, 25 D. R.. 993. The municipal, township or special election, word "or" which is referred to in the for any reason that may seem proper to Chester County case is supplied in the the county commissioners, upon a peti- amended form of the act approved in tion of at least ten qualified electors of 1919, supra. It must be evident that the any township election division, to county commissioners did not act in acchange the polling place of said town- cordance with the directions of the statship or election division: Provided, utory law giving them authority to act however, That the said county commis- and that they illegally changed the sioners may, in their discretion, direct polling place. But it is said in the Philthat an election be held to settle the adelphia case, supra., "If the commisquestion as to where the said polling sioners had acted illegally, either a bill place shall be located." This act repeals in equity to restrain them from perall acts or parts of acts, general, special fecting the change or a mandamus proor local inconsistent therewith. It will be noted that the county commissioners had no authority to change the polling place upon the petition of the council of the borough, although the petition was signed by all the members thereof, and The one hundred and eighty voters by the president and secretary officially, who, in this petition, prayed for a there being only eight persons in all, change of the polling place to the hose whereas the act requires "at least ten house in the borough, claim that we qualified electors." Nor did the peti- have the authority to make such change tion of the twelve qualified electors of at any time by virtue of the act of 18th the borough, presented seven days after May, 1893, P. L., 106, which provides. the polling place had been changed, cure "That it shall be lawful for the court of the defective number on the petition of quarter sessions of the proper county at the borough councilmen. Besides, the any time, for any reason that may seem act above referred to was amended by proper to the court, upon a petition of an act approved the 8th day of July, at least ten qualified electors of any 1919. P. L., 769, which the commis- election district, and upon such notice sioners apparently overlooked. By rea- to the county commissioners as the court son of the amendment the commission- may direct, to change the polling place ers were obliged to give "written notice of said district; Provided, however, to the occupant or owner of said polling That the court may, in its discretion, place, at least one week before the direct that an election shall be held to hearing on said petition to change the settle the question as to where said polling place." A proviso in the polling place shall be located." But the amended act provides that the "county county commissioners, in their answer commissioners shall not make any to the petition, challenge our jurisdicchange in the said polling place," if, "on or before the day of hearing," there is presented to the commissioners a petition "signed by a majority of the registered electors of the said township or election division, and sworn to by one

tion in the premises, claiming that the repealing sections of the acts of 1903 and 1919, supra, render inoperative "all acts or parts of acts, general, special or local, inconsistent with" said last mentioned acts.

Lackawanna Co.

Commonwealth v. Roper et al.

Criminal law-Fugitive from justice

Defendant absent from the State on military service.

There can be no doubt that said re- Q. S. of pealing sections do render inoperative all statutory laws inconsistent with the first section of the act of 1903 as amended by the first section of the act of 1919-the matter is too plain for argument. And it seems equally clear that the right of the commissioners alone to change the polling place in any election district of the state is established, provided that action is taken by them in time to effect a change "at least three weeks prior to any general, municipal, township, or special election." But in exercising the power conferred, the county commissioners are obliged to act in accordance with all the provisions of the statute conferring the power. It seems to be clear, also, that the court of quarter sessions may not now change a polling place "at any time," but that said court's action is restricted to the "three weeks prior to any general, municipal, township, or special election."

The petition before us was presented within three weeks prior to the election held on the 4th day of last November, and the court, therefore, had ample authority to take action in the premises. But there was no exigency requiring it to act speedily, as in the cases pointed out in the acts of 17th April, 1866, and 13th June, 1883, 2 Purd.. 1318, plac. 32 and 33.

Where a defendant was inducted into the

service of the United States and left the State of Pennsylvania for a camp in another state, in which he remained for six months, when he returned to Pennsylvania, and one month after he left the State of Pennsylvania a warrant was issued charging him with a criminal offence, which warrant was returned "defendant not found."

it is proper, on presentation of an affidavit stating these facts, and averring that defendant was a "fugitive from justice," for the court to order the district attorney to submit the indictment to the grand jury, who may then properly indict the defendant.

To be a fugitive from justice, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoid. ing a prosecution anticipated or begun, but

simply that, having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction and is found within the territory of another.

Mrs. Kelly's house had not been destroyed by fire nor had it been Rules (1) to quash indictment as to rendered unfit "by a conversion of the Patrick F. Noone, and (2) to vacate same from a public to a private use."order directing submission of indictThere was no such sudden or unex- ment to grand jury. Q. S. Lackawanpected emergency existing as required na Co., Dec. Sess., 1918, No. 152.

the court to disregard giving such notice to the county commissioners as was

James Scarlet, C. P. O'Malley and Clarence Balentine, for defendants.

G. W. Maxey, District Attorney, and given. And the order made by the court H. A. Scragg, Assistant District Attordirecting notice to be given to the county ney, for Commonwealth. commissioners was made in the form presented by the petitioners themselves. The purpose of giving such notice was to afford the county commissioners an opportunity to be heard on the merits of the petition. The proceedings subsequent to giving the notice were not complete until election day had passed, and it is not within our power now to make the change.

Now. February 9, 1920, the petition is dismissed for want of jurisdiction in the premises.

April 3, 1919, Edwards, P. J.-The facts applicable to the rules in this case are few and simple, and there is no dispute as to the controlling facts.

One of the defendants, Patrick F. Noone, was inducted into the service of the United States on July 24, 1918, and on July 26, 1918, he left the State of Pennsylvania for Camp Lee, Va., in which latter state he remained until Jan.