committed, in the presence of and at the instance to the validity of the trial and sentence, after of her mother, after she accused the defendant of the act, and the physician was present in Court during the trial and was not called by the Commonwealth, ought under the English rule to have acquitted the defendant, and the Court should have affirmed the second point.

S. P. Johnson, for defendant in error. The case was tried and concluded without the question of jurisdiction once occurring to the Court, the District Attorney, or the defendant's counsel. The panel was not exhausted in the selection of the trial jury, and no talesmen were called. The defendant made all the challenges he desired, and there were plenty more regularly summoned jurors in attendance from whom further selections could have been made. The objection is purely technical; no allegation is made that anything was either omitted or committed prejudicial to the rights or safety of the defendant. The defect was merely a harmless oversight, which, if noticed in time, the defendant might perhaps have taken advantage of to postpone the trial. Even this is not certain under the ruling in

Foust v. Commonwealth, 9 Cas. 338. Being a "defect in or appertaining to the venire, the trial on the merits was, under the Act, a waiver of it. If this defect in the venire and shortage of jurors is not within the spirit and letter of the Act, it has failed to accomplish what it aimed at.

The power to amend by filing a certificate nunc pro tunc, to the Oyer and Terminer, was settled by Brown v. Commonwealth (28 Sm. 127, per AGNEW, C. J.), and the fact that the amendment was duly made and entered of record, disposes of the second assignment of error.

The physician was present and equally accessible to either party. When the Commonwealth closed, the district attorney informed the defendant's counsel that he did not intend to examine him. Yet after full opportunity to ascertain what his testimony would be, the defendant also omitted to call him, for the reason, presumably, that his testimony was valueless to either side. There is no more reason to presume that our not calling him was suggestive of defendant's innocence, than to presume that defendant's omission to call him was suggestive of his guilt. The English rule never obtained in this country, nor anywhere else since rape ceased to be a capital crime.

verdict and after a certificate of the cause into the Oyer and Terminer. Had there been a legal and actual Court of Oyer and Terminer in session at the time the case was tried, we should have held the subsequent certificate of the cause into that Court, nunc pro tunc, as sufficient, upon the authority of Brown v. Com'th (28 P. F. Smith, 122). But in point of fact there was no legally constituted Court of Oyer and Terminer in session, or capable of sitting at the time of the trial. The Act of April 14, 1834, § 113, provides that "the number of persons who shall be summoned and returned as aforesaid to serve as petit jurors in any Court of Oyer and Terminer shall not be less than forty-eight nor more than eighty, and in any other Court of criminal jurisdiction not less than twenty-four nor more than sixty. Now to summon thirty-eight jurors to serve in a Court of Oyer and Terminer is not a mere defect or irregularity in the venire. Without a panel of forty-eight jurors summoned and returned for service, an essential constituent of that Court is wanting. If a panel of thirty-eight would be. a sufficient compliance with the law, we see no reason why a number still less would not suffice. The defect, or omission rather, is fatal to the constitution of the Court, and hence the certificate of a cause from the Quarter Sessions into a Court so composed is inoperative to effect the transfer. This consideration distinguishes the present case from all those cited by the learned Judge of the Court below. We hold, therefore, that there was no valid trial and sentence, and must reverse the judgment for that reason.

This decision makes it unnecessary to consider the other errors assigned. We cannot forbear, however, remarking that, in our opinion, the physician, who on the day after the occurrence examined the person of the girl upon whom the offence was alleged to have been committed, should have been called as a witness and required to testify by the district attorney. Whether his evidence tended to acquit or convict, it was demanded equally by the cause of humanity on the one hand, or of justice on the other. We say this, more especially, because there was no direct evidence of the factum of the crime, and no proof of actual penetration, the prosecutrix having testified that she was insensible and had no knoweledge of what took place. We do not reverse for this reason, and do not sustain the fifth assignment of error which raises the quesJune 14, 1880. THE COURT. We are of tion, but merely express our opinion as to what opinion that the first assignment of error is sus- should have been done in the peculiar circumtained, and the judgment must therefore be re-stances of this case. versed. The defendant was tried in the Court

Judgment reversed and venire facias de novo

of Quarter Sessions for an offence of which that awarded.

Court had no jurisdiction. This alone, however, Opinion by GREEN, J. SHARSWOOD, C. J., and would not have constituted a sufficient objection | PAXSON, J., absent.

May 11, 1880. | reside on said farms and properties, shall pay their school taxes to, and be entitled to all school privileges, including the right to vote for and serve as school directors, in said borough: Provided, that said persons shall not be liable to taxation for any purposes except school tax, in said borough."

In re Contested Election of J. E. Colvin.

Constitutional law-Annexation of lands in one township to another township or borough for school purposes-Special Act of April 8, 1867 -Constitutionality of-General Act of April 13, 1867-Construction of.

A school district is not strictly a municipal corporation. The special Act of April 8, 1867 (P. L. 934), which provides that certain lands in Napier Township shall be attached to the borough of Schellsburg for school purposes, and the occupants thereof shall pay their school taxes to and be entitled to school privileges-including the right to vote for school directors-in said borough, is not in violation of the provision of the Constitutions of 1838 and 1874, that electors shall reside in the election district in which they vote.

Under the general Act of April 13, 1867 (Purd. Dig. 237), which authorizes the Court of Quarter Sessions by decree to annex lands in one township to another township or borough "for educational purposes," a resident on lands so annexed is brought within the new school district for all purposes for which it is formed-including the right to vote for school directors-although he remains connected with his township or former district for all other purposes.

Certiorari to the Quarter Sessions of Bedford County.

(2) Persons residing on lands in Napier Township which had been annexed to the school district of said borough, for educational purposes, by a decree of the Court of Quarter Sessions, under the general Act of April 13, 1867 (Purd. Dig. 237), which provides as follows:

"The several Courts of Quarter Sessions of this Commonwealth shall have authority, within their respective counties, to annex the land, or parts thereof, of persons resident in one township or borough, to another township or borough, for school purposes, so that when so annexed, the applicant shall pay his school taxes and be included within the school district to which it is so annexed, for educational purposes, and remain connected with the district or township of his residence, for all other purposes; and the said Court shall, upon the petition of any one desiring such change, proceed by views and reviews, in the manner, and under the restrictions, provided under the Act of General Assembly approved April 15, 1834, with its supplements, in regard to the alteration of the lines of any two or more adjoining townships: Provided, That all the costs of such proceedings shall be paid by the person or persons applying for such change."

The answer of J. E. Colvin admitted the facts set forth in the petition, but denied the right of the persons embraced in the said two classes to vote at said election for school directors, on the grounds (1) that the special Act of April 8, 1867, is unconstitutional, in that it contravenes Art. III., Sect. 8, of the Constitution of 1838, and Art. VIII., Sect. 1, of the Constitution of 1874, requiring that electors shall reside in the election district in which they vote. (2) That the general Act of April 13, 1867, authorizing the Court to annex lands to a school district "for educational purposes," does not contemplate annexation for any other purpose than that of paying taxes and sending children to school in the borough school district, and does not confer the right to vote for school directors therein.

The petition of more than twenty-five qualified electors of the borough of Schellsburg, in Bedford County, Penna., set forth that it appeared by the returns of an election held on the 17th of February, 1880, for two persons to fill the office of school directors of said borough, that Charles W. Colvin received 51 votes, and was duly elected; that J. E. Colvin received 44 votes, and William H. Beaver received 43 votes; and that the said J. E. Colvin was returned as elected. The petitioners averred that William H. Beaver should have been returned as elected, and not J. E. Colvin, on the ground that a large number of qualified voters who had offered to vote for said Beaver were refused, and their votes rejected After argument, the Court, HALL, P. J., held and not counted in the return-among others, that the special Act of April 8, 1867, was not the votes of persons included in the two follow-unconstitutional before the Constitution of 1874, ing classes, viz.: (1) Persons residing on certain farms in Napier Township particularly named and annexed to the school district of said borough, for school purposes, by the special Act of April 8, 1867 (P. L. 934), which provides as follows::

"Sect. 1. That the following named lands and tenements, situate in Napier Township, Bedford County, near the borough of Schellsburg, are hereby attached to said borough, for school purposes, to wit: The farms of Charles W. Colvin, the one known as the Reiley farm, and the other as the Hillegas farm; also the farm of George W. Bowser, and that of Reuben Colvin, all in Napier Town ship; and that all persons who now, or may hereafter,

and that it was not repealed or affected thereby; that the persons residing on said farms in Napier Township, above mentioned, were entitled to vote at the said election in the borough of Schellsburg; and decreed that the return of the election of J. E. Colvin was illegal, and that W. H. Beaver was duly elected. The Court did not decide the question arising under the general Act of April 13, 1867, deeming it unnecessary for the determination of the case.

J. E. Colvin took this writ, assigning for error (1) the decree of the Court, deciding that the said special Act was constitutional. (2) That

the Court should have decided that the said | lands are annexed is expressly given; under the general Act does not confer on persons residing general Act, it is an incident of the annexation; on lands annexed to a school district by the the privileges and obligations accruing thereby Court the right to vote for school directors in are correlative and coextensive. the township or borough to which they are so annexed.

Jacob Harwi, Sr., died in 1877 intestate, leaving considerable real estate, and personal property amounting to $16,000. The defendant, Jacob Harwi, Jr., was one of eight children of the decedent. John Harwi, one of the decedent's sons, took out letters of administration in January, 1878.

Riegel and Dundore issued writs of attachment Nos. 54 and 57 of February Term, 1878. The præcipe of Riegel was as follows:—

"Issue writ of attachment directed to the sheriff of Northampton County, commanding him to attach all moneys, property, legacies, or right, title, and interest of the defendant in the hands of John Harwi, administrator of Jacob Harwi, Sr., deceased, and summon him as gar

nishee."

Dundore's præcipe was substantially the same, concluding with "summon the said John Harwi, administrator, as garnishee." The writs were served in each case on January 7, 1878, to which the sheriff made the following return :

Where on its face a writ of attachment embraces nothing but the defendant's interest or his distributive share "Attached, as within commanded, all the goods and in the personal assets of the decedent in the administra- chattels, debts, credits, effects, legacies, and distributive tor's hands, and the return of service shows no attach-share of the defendant, Jacob Harwi, Jr., in the hands, ment of land or interest therein, the administrator being admittedly not in possession of the land, the writ and service do not bind the defendant's interest in the real estate

of the decedent.

PER TRUNKEY, J. The statutes of June 13, 1836, June 16, 1836, April 13, 1843, and April 10, 1849, have not confounded legacies and devises, nor the respective interests of one in the realty and personalty of an intestate, but have made each liable to attachment upon execution in satisfaction of a judgment. "Legacies given" and "Lands devised" are artistic phrases, neither of which includes the other. An interest in the goods and chattels of an intestate is quite different from an interest in his lands.

Neely v. Grantham (8 Sm. 433), and Straley's Appeal (7 Wr. 89), commented upon.

possession, or custody of John Harwi, administrator of nishee by giving him a true and attested copy of this writ Jacob Harwi, Sr., deceased, and summoned him as garpersonally on Feb. 7, 1878."

Both the above judgments were transferred to Lehigh County, January 22, 1878, and on the same day attachments were issued upon the interest of the defendant, Jacob Harwi, Jr., in the estate of his father, Jacob Harwi, Sr., in the hands of the administrator. The præcipes and returns were substantially the same as those in Northampton County. Interrogatories to John Harwi, administrator, were filed in Lehigh County in the cases of Riegel and Dundore, which

Appeal from the Common Pleas of Northamp-were served March 23, 1878, and answers were ton County.

Appeal of Jeremiah Roth, trustee for Barbara Harwi, from a decree of the Court confirming the report of a commissioner appointed to distribute the fund arising from a sheriff's sale of the interest of Jacob Harwi, Jr., in the real estate of his father, Jacob Harwi, Sr.

The following material facts were found by the commissioner (Richard Brodhead) to whom the case was referred: Jacob Harwi, Jr., made a general assignment for the benefit of creditors in May, 1877. On the judgment docket of Northampton County there were recorded against him at the time of the assignment the following judgments:

Samuel Riegel, No. 556, Sept. T. 1875, entry Nov. 29, 1875, $4500.

filed by the administrator, in which it appeared that the defendant was entitled to a distributive share in the real and personal estate of Jacob Harwi, Sr., deceased.

On February 27, 1878, Jacob Harwi, Jr., confessed judgment to Jeremiah Roth, in trust for Barbara Harwi for $8600, which was entered in the Common Pleas of Northampton County as of February Term, 1878, No. 269, and on which execution was issued March 4, 1878, No. 547, April Term, 1878. A fi. fa. was thereupon issued by Roth, trustee, etc., to April Term,. 1878, and a vend. ex., under which the interest of Jacob Harwi, Jr., in the real estate, was sold on August 17, 1878, for $1800, to the plaintiff in the writ, and the fund, less the costs, was ruled into Court for distribution.