mitted to a popular vote. The Act of 1857 is not a statute of jeofails. If it can cure the want of a proper order, upon the same principle it must cure the want of any order, and submit the whole question primarily and finally to a decision at the polls.

We reverse the decree ordering the proposed division of Conneaut township therefore, solely on the ground of the defectiveness of the order to the commissioners. We discover no other error in the record. Had the order been sufficient, the fact that the return of the election was not filed with the clerk of the Quarter Sessions within five days would have been of no consequence. That provision of the act is simply directory.

Order of the Court of Quarter Sessions decreeing a division of Conneaut township reversed, and the order to the commissioners, their report and all subsequent proceedings set aside.

Warwick Township, 6 Harris 372; Alba Township, 11 Casey 271; Clay, West Cocalico and Euphrata Townships, 9 Id. 366; North Whitehall Township, 11 Wright 156; Greenwood Township, 3 Grant 261.

In the Common Pleas of Erie County.

DRAPER & ELDRIDGE v. SHARP.

(Vol. VI., p. 162, 1858.)

1. A warrant of attorney to enter judgment attached to a promissory note destroys its negotiable character; but, being endorsed by the the payee, endorsees can sustain an action in their own names against the endorser, but not against the drawer.

2. The endorsee of a non-negotiable note or bill takes it subject to the same rules that regulate the relations between endorser and endorsee of negoti able instruments.

THIS suit was brought upon a note, of which the following is a

copy:

"$312 41.

Nine months after date, I promise to pay to the order of Jacob

Sharp, three hundred and twelve dollars and forty-one cents, and I hereby authorize the prothonotary of Crawford county, Pennsylvania, to enter judgment against me for the above sum, with interest, costs of suit, release of errors, &c.

Waterford, Erie county, Pa.
March 16th, 1855.

Endorsed "JACOB SHARP."

C. W. TAYLOR."

The declaration contained one count against Sharp as endorser, one against him as guarantor, and the indebitatus assumpsit

counts.

Pleas, non assumpsit and payment; and issue.

Church, for plaintiff, referred to 9 Watts 359; 1 Harris 173.

Grant, for defendant, referred to 5 Whart. 351; 3 Barr 346-7; 6 W. & S. 234; 15 Leg. Int. 84; 6 Law Reg. 377.

A verdict was taken for the plaintiff, subject to the opinion of the Court, which was delivered by

DERICKSON, J.-On the 16th of March, 1855, C. W. Taylor made his note, payable to the order of Jacob Sharp, for $312 41, in nine months, with a warrant of attorney annexed to enter judgment thereon. Sharp endorsed the note in blank, and judgment was entered in the name of the plaintiffs as bearers thereof in the Common Pleas of Crawford county. On the 2d January, 1856, an entry was made on the docket that the "defendant claims stay as a freeholder." A fi. fa. was afterwards issued, on the 14th of April, which was returned August 9th, 1856, "not found in my bailiwick;" though the parties here have agreed to consider the return as "nulla bona." The plaintiffs then brought their present suit to recover the amount from Sharp as the endorser, and in addition to the foregoing facts have proved that Taylor in 1855 and 1856 was reputed to be insolvent; and that in September or October of the former year, an execution issued against him by some other creditor of his, on which nothing was or could be made. On these facts a verdict was rendered for the plaintiffs, subject to the opinion of the

Court, whether they were sufficient to entitle them to recover. If they were, judgment was to be entered in their favor. If they were not, then judgment to be entered for the defendant, notwithstanding the verdict.

The warrant of attorney took from the note its commercial character, but being endorsed by the payee, the endorsees could sustain an action in their own names against the endorser, but not against the drawer; so that this objection must fail the defendant.

The other ground of defence is that there was no demand made of Taylor or notice of one to Sharp, both of which it is contended were necessary to render him liable. In Leidy v. Tammany, 9 Watts 353, it is said to be "well settled that the endorsee of a bill or note not negotiable may, after demand of payment from the acceptor of the bill or maker of the note and a neglect or refusal to pay, maintain an action against the endorser;" and also "why may not the endorsement be regarded also in the light of a bill of exchange drawn by the endorser upon the maker of the note?" and reasons upon the force and propriety of it. And in the case of Brenzer v. Wightman, 7 W. & S. 264, it is decided that the endorsee of such a note takes it subject to all the rules that regulate the relations between endorser and endorsee in negotiable instruments. Judge Sergeant says, in the case, that where a demand is actually made by the holder and there is a refusal by the maker to pay, there is no reason why the rule requiring immediate notice of the nonpayment to be sent to the endorser, should not apply in the same manner as it does in the case of the demand and refusal of payment of a note or bill payable to order; and that it is equally important to the endorser of a note not negotiable, to receive notice of non-payment that he may take measures to collect the money from the maker, which he might lose by neglect or delay of notice. By omitting this he ought to be considered as discharging the endorser and agreeing to look to the maker, as the endorser's engagement is conditional, not absolute.

Taking the law then to be as thus stated, it will not answer to say that the issuing of a fi. fa. nearly four months after one might have issued, and the return thereof of nulla bona, even

admitting the reputed insolvency of the maker of the note, would be equivalent to a demand and notice. To say that it would, would be the substitution of one set of facts unknown to the law regulating bills of exchange, &c., to control in matters purely commercial, in which a well-defined rule of procedure is required to make good the liability of an endorser, which in the outset is known to be but conditional.

Judgment is therefore entered for the defendant, non obstante veredicto.

M'Grath v. Hagerstown Savings Bank, S. C. 17 Leg. Int. 308; Bircleback v. Wilkins, 10 Harris 27; Carruth v. Middletown, 2 Phila. 45.

In the Oyer and Terminer of Allegheny County.

COMMONWEALTH v. JACOBY.

(Vol. VI., p. 177, 1858.)

That clause in the Constitution of Pennsylvania (Article 5, Section 5), which prescribes, that the Judges of the Common Pleas "shall not hold a Court of Oyer and Terminer or Jail Delivery in any county, when the Judges of the Supreme Court or any of them, shall be sitting in the same county," is to be construed as if it read "when the Judges of the Supreme Court.or any of them shall be sitting as a Court of Oyer and Terminer or Jail Delivery in the same county."

CHRISTIAN JACOBY was indicted, tried and found guilty of murder in the first degree, in the Court of Oyer and Terminer of Allegheny county, in the month of November, 1858, at which time the Supreme Court of Pennsylvania was in session as a Court of Errors and Appeals in the same county. After conviction prisoner's counsel moved in arrest of judgment and for a new trial, assigning as a reason Article 5, Section 5, of the Constitution of the State.

The motion was fully argued by Howard, for the prisoner, and by Collier, District Attorney, for the Commonwealth.

VOL. I.-31

The following opinion, overruling the motion, was delivered, November 11, 1858, by

MCCLURE, P. J.-The Court has seated a general bill of exception to the whole charge of the Court. In this case a motion was made by prisoner's counsel in arrest of judgment, and also for a new trial.

No reasons for a new trial have been filed. One reason in arrest of judgment has been filed, which is as follows, in the words of the Constitution.

"The Judges of the Court of Common Pleas in each county, shall, by virtue of their offices, be Justices of Oyer and Terminer, and General Jail Delivery, for the trial of capital and other offenders therein; any two of the said Judges, the President being one, shall be a quorum; but they shall not hold a Court of Oyer and Terminer or Jail Delivery in any county, when the Judges of the Supreme Court or any of them, shall be sitting in the same county. The party accused, as well as the Commonwealth, may under such regulations as shall be prescribed by law, remove the indictment and proceedings, or a transcript thereof, into the Supreme Court." Constitution of Pennsylvania, Article 5, Sec

tion 5.

The prisoner's counsel adduces no reasons, but relies on the literal prohibition of this constitutional provision.

This Court is bound to take judicial cognisance of the fact that the Supreme Court was in session, in and for Allegheny county, during this trial. The fact is admitted.

As the point raised here has never been judicially decided by the Supreme Court of Pennsylvania, this Court is thrown upon its own resources to furnish such reasons for its decision as may suggest themselves, without direct reference to authority either to guide as reason, or govern as precedent.

It is easy to see with what conclusive force and effect this literal constitutional prohibition would fall upon a layman's ear and understanding. It is easy to perceive how its simple recital would be suggestive of doubts and difficulties, even to professional apprehension, until upon reflection or research these doubts would vanish.

The Supreme Court of Pennsylvania and each and every jus