Company. Now a party who has bona fidely severed his connection with the diocese July entirely forgotten the facts, acts under the like mistake of the facts as if he had never known them: Kelly v. Solari, 9 Mees. and Wels., 54, 58. Here then the parties were dealing | under a mutual mistake in respect to a matter of fact which constituted the very basis of the contract. Neither intended that there should be a second insurance, but both acted in the bona fide belief that the property was uninsured. It was a fundamental condition of the Lycoming policy that there was no prior insurance. This was of the very essense of the contract. The mistake, therefore, was as to a matter of fact, not only material, but of vital inportance. The parties having acted under such mutual error, neither of them could be held to the contract: Story's Eq. Jururisp., ?? 134, 140, et seq. The case fails clearly within Chief Justice GIBSON'S apt definition of a mutual mistake of fact which will invalidate a contract, expressed in Gibson v. The Union Rolling Mill Co., 3 Watts, 32, 36, where he says: "But the misconception which avoids a contract is necessarily a mutual one, and of a fact which entered into the contemplation of both parties as a condition of their contract." It is to be observed that it was not necessary for either of the parties to go into a court of equity to set aside the Lycoming policy. It had never been delivered; and as soon as the mutual mistake was discovered by the company, the policy was rightfully marked "cancelled." Under the finding of the jury and the other undisputed facts, I am of opinion that there was no binding contract of insurance between the plaintiff and the Lycoming Company; that the plaintiff acted in the best of faith to the defendant company, and that there was no breach by him of the condition of the policy sued on in respect to other insurance. The motion for a new trial must therefore be over ruled. Orphans' Court. 1877, and died in Terragona, Spain, on January 5, 1878, without having delivered to his successor, Rt. Rev. John Tuigg, a formal written transfer of the property belonging to the diocese. He provided, however, for the delivery of such delivery in his will. His directions in that particular were subsequently carried out by his executors, Rt. Rev. Tobias Mullen and Very Rev. John Hickey. The inventory filed by these executors, which included the diocesan property, footed up $92,328.47. Prior to his departure for Europe, Bishop Domenec informed Rev. Hickey that he would take with him valuable papers. After his death, Rev. Hickey wrote for these papers, but received no answer. In 1878, he went to Europe. His object in going was two-fold: 66 (1.) To visit the grave of Bishop Domenec, and secure such official papers and other documents as he could find." (2.) To attend to personal business at Rome. He obtained from the Archbishop of Terragonia, and brought home, four notes amounting in the aggregate to the sum of $12,000.00 which belonged to the diocese of Pittsburgh. These notes are charged in the present account, and credit is claimed for their transfer to Bishop Tuigg, subject to accountant's claim for compensation, etc. Accountant claims compensation for services and expenses to Spain $500.00; for attorney's fees paid, $100.00, and costs of filing his account, $8.00. Exceptions are filed to all these items of credit on behalf of Bishop Tuigg. The exceptant claimed that accountant had been paid in full for his services and that there was no necessity for filing an account. The following statement will explain more fully the ground upon which these exceptions rest: While Rev. Hickey was absent in Europe, his coexecutor, Bishop Mullin, filed an account entitled: "First and final account of the executors and trustees under the will of Rt. Rev. Michael Domenec, deceased, filed by Rt. Rev. Tobias Mullen, acting executor and trustee," In Re. Estate of Rt. Rev. M. DOMENEC, Deceased. in which was charged the "inventory and ap (1.) The confirmation of an account in which commissions have been claimed, is an adjudication of the fact that so much has been earned for the services represented by such account, and vests title to such commissions in accountants in equal shares; under such circumstances conditions imposed by one executor in the payment to the other of his share, is void. (2.) Where a bishop has been guilty of neglect in transferring assets to his successor in office, his estate will be charged with the costs and expenses resulting from such neglect. Rt. Rev. M. Domenec, late bishop of Pittsburgh, departed for Europe in April, 1877, final allowed him and his coexecutor in the account That Rev. Hickey has earned additional comas confirmed, and was thereupon paid the one-pensation is obvious. In view of the informahalf thereof, ($444.61), on signing a receipt of tion communicated to him by Bishop Domenec which the following is a copy: $444.61 Received, Pittsburgh, October 18, 1880, from Rt. Rev. J. Tuigg, bishop of Pittsburgh, and administrator of Allegheny, per Rt. Rev. T. Mullen, bishop of Erie, Four hundred and forty-four and 61.100 dollars in full of my share of commission for services rendered as coexecutor with the said Rt. Rev. T. Mullen, of the will of Rt. Rev. M. Domenec, deceased. This is also a certificate that I have filed in the Orphans' Court of Allegheny Co., Pa., my final report under said will, and that the above mentioned sum of $444.61 is to be in full compensation for all services to be hereafter performed by me in the case. JOHN HICKEY, Coexecutor. This receipt was signed under protest. Rev. | Hickey gives as a reason for signing it, that he had either to sign or permit the sheriff to sell his "mother's homestead out," there being then an execution in his hands for that purpose. The money was paid on the verbal condition that it was "to cover all past and future services," and was received with the declaration that the receipt was illegal and unauthorized, and that an appeal would be made to this court to disregard it in the settlement of the account. Opinion by HAWKINS, P. J. Filed January 7, 1881. before his departure for Europe, with reference to his papers, it was his duty to make every reasonable effort to obtain them. His trip to Europe seems to have been necessary for that purpose and to have been made in good faith, and the amount he claims for services and expenses in that behalf are very reasonable. Is the diocese, or estate of Bishop Domenec, deceased, liable for his claim? It was the duty of Bishop Domenec to have invested his successor in office with all proper, necessary and usual evidence of ownership of the property belonging to the diocese. That he recognized this duty is apparent from the direction to his executors to make the written transfer, which he had omitted to make in his lifetime. It could and should have been made in his life time at a mere nominal expense; more than five months elapsed before the dissolution of his connection officially with the diocese and his death. It follows that his estate, if sufficicient, shuold bear the expense and costs incident to the transfer made after his death. The papers which Rev. Hickey obtained belonged to the diocese. For exceptant, Charles F. McKenna, Esq. For accountant, Messrs. G. L. B. Fetterman and A. V. D. Watterson, ABSTRACTS OF RECENT DECISIONS. Fraudulent conveyances-Stat. 13 Eliz.-Existing and subsequent creditots-Estoppel-Declarations upon the faith of which a debt is contracted-Distribution by Auditor of surplus funds in hands of Assigness for benefit of creditors-Who may participate.-Moury's Appeal.—Opinion by STERRETT, J., May 24, 1880.-9 W. N. C., 362. Creditors, whose debts were contracted, subsequently to a fraudulent conveyance, expressly on the faith of dec larations made by both grantor and grantee, that the grantor retained his interest in the property conveyed, may, as against the grantee, avoid the conveyance as a fraud against them. D. lent money to M., the grantor of certain real estate, upon the faith of declarations by the grantee that the deed to him was intended to defraud the grantor's then existing creditors; and that (this in The confirmation of the account filed by Bishop Mullen for himself and coexecutor was an adjudication of the fact that they had earned the amount claimed therein as compensation for services represented by that account, and its effect was to vest in them an absolute right to that amount. This allowance of compensation, could not, in the nature of the case, and as a matter of fact did not, embrace those services which were rendered by Rev. Hickey in his trip to Europe. He had not returned when the account was filed; he was not consulted with reference to it, and it does not appear that Bishop Mullen knew what services he had rendered while absent. There is no evidence to overcome the presumption of law that the executors had an equal interest in the compensation allowed for the services represented by Bishop Mullen's account. The services represented by Rev. Hickey in his trip to Europe were additional and independent. It follows that neither Bishop Mullen nor any one else had power to impose a valid condition to the payment signee for creditors sold the land for more than enough of Rev. Hickey's share of the compensation allowed. It was his absolutely and unconditionally by virtue of the decree of this court. The receipt signed by Rev. Hickey is therefore not a bar to his claim of additional compensation: Hamsher v. Kline, 57 Pa. St., 397. debtedness having been satisfied) the grantor retained his interest in the land. The grantee then assigned the land for the benefit of certain creditors. Afterwards S., upon the faith of declarations by the grantee similar to the above, loaned money to M., the grantor. The as to pay all the debts for which it was assigned. Upon distribution by an auditor of the surplus, it was claimed by A. as assignor, and by D. and S. Held, that A. was estopped by his declarations from claiming the fund as against D. and S. The latter, as creditors of M.-whose interest had passed to the purchaser at the assignee's sale-were entitled, under the circumstances, to be paid out of the fund. Editor. No. 26. PITTSBURGH, PA., FEBRUARY 9, 1881. Supreme Court, Penn'a. In Re. Contested Election of JOHN A. GILLELAND. When officers for the same office are to be elected for different terms, the ballots should specify the term for which each person is voted for. At an election in February, 1880, four school directors were to be chosen in the Fifth ward of Allegheny city; two for the term of three years, one for two years and one for one year. Held, that "stickers" which did not specify the term for which the candidate was voted for, nor by their position on the ticket designate it, could not be counted. Certiorari to the Court of Quarter Sessions of Allegheny county. This was a contested election of a school director in the Fifth ward of Allegheny city at the February election in 1880. The following was the opinion of the Court, (WHITE, J.): "The report of the examiner shows that the votes cast in the different precints for school director for the term of three years, undisputed, .105 89 348 77 73 66 "As two persons were to be elected for three years, one for two years, and one for one year, it is fair to presume that A. Ammon was voted for the three year term, as that completed the ticket. This presumption is strengthened and demonstrated in fact by the name occuring just after the name of J. A. Gilleland and pasted over a three year name. When it is reasonably certain what the votes meant, the court should give effect to the ballot.. These votes, we think, should therefore be counted. "Of these ballots there were six in the first precinct, twenty-four in the third, and three in the fourth, making in all thirty-three; these, added to Ammon's vote as above, would make his total 353, being two more than Gilleland's, and, of course, elect him. "The exceptions to the report of the examiner do not affect this controversy, because, if true, they would not change the result. They are therefore dismissed. "And now, May 11, 1880, after hearing the parties, their proofs and allegations and arguments of counsel, and after full consideration thereof, it is adjudged and decreed that Adam Ammon was duly elected a school director in the Fifth ward, Allegheny city, at the election held on the 17th of February, 1880, for the term of three years, instead of J. A. Gilleland, to whom a certificate of election was given, and that said John A. Gilleland was not elected. The costs to be paid by the school board." The following were the assignments of error: 1. The court erred in assuming that the ballots cast for A. Ammon, specifying no years or term for which he was voted, were intended to be voted for him for the three year term, there 101 being no evidence to support this assumption. 2. The court erred in assuming that the name of A. Ammon in exhibit "B" was pasted over "B. F. Brown," the second name on the ticket for school director for three years, there being no evidence offered that such was the fact. 320 "The report also shows there were voted quite a number of ballots scratched and with sticker. All of these should be excluded, except the ballots marked in the exhibits as 'B' and 'J.' The ballot exhibit 'J' was complete, but the name of A. Ammon, three years,' was erased, and the name 'John Gilleland' written opposite to it. We think that should be omitted. There were two of these in the first precinct and one in the fourth precinct, which will add three votes to Gilleland, making his total vote 351. "The ballot exhibit 'B' was full and complete, except that 'A. Ammon' was pasted over B. F. Brown, the second name on the ticket for school director for three years. The ticket then stood: SCHOOL DIRECTORS. J. A. Gilleland.. .3 years Adam Ammon. John A. Slagle... J. W. Bell, M. D.. .2 years And as this is a matter within the control of 1 year the elector, the law requiring it is mandatory, which they were intended. And this fact is and should be strictly construed: Ker v. Rhodes, Supreme Court, Cal., October Term, 1873. So where a candidate is voted for by the initials only of his Christian name, the surname being correct, private evidence is admissible to apply the ballot to the candidate for whom it was in-containing one name over another name inditended; but, in the absence of evidence, such cates an intention to substitute one name for ballots must be rejected: Opinion of the Judges, another. If it be placed over another name 64 Maine Rep., 596; People v. Tisdale, 1 Doug., which is under the title of office, it indicates an (Mich.) 59; Carpenter v. Ely, 4 Wis., 420, (see | intention to substitute for that office the name Brightly's Election Cases, 258); People v. Ser- | upon the ‘paster.' mon, 5 Denio, 409; State v. Willoughby, 43 Conn., 533; State of Nebraska v. Griffey, 5 Neb., 161; Brightly's Election Cases, 267. And a ballot voted at a legal election without designating the office voted for is illegal and void: Nebraska v. Griffey, supra. In McCrary on Elections, 311, the same doctrine is laid down, and The People v. Love, supra, appproved. For appellant, Messrs. Schoyer & McGill. Opinion by MERCUR, J. Filed January 3, 1881. The 2d section of the Act of April 11, 1862, (Purd. Dig., 240, ¶ 27), enacts: "*** If vacancies are to be filled at any election of school di- At an election of school directors, held in the rector, in addition to the persons to be elected Fifth ward of the city of Allegheny, four direcfor the regular term, and the voters shall all tors were to be chosen, namely, two for the term neglect to designate on their tickets the term of of three years, one for two years and one for one office for which each person voted for is a can- year. The tickets voted generally contained the didate, then the person or ersons having the names of four persons, and opposite each the highest number of votes shall be declared elect- | number of years, whether one, two or three. In ed for the longest term or terms; the next high- some cases a person was voted for without anyest in vote, after the filling of the longest term, thing opposite his name, indicating whether it shall be declared elected for the next longest was for one, two or three years. In other cases term, and so on, till all the terms vacant shall there were less than four names on the ticket. Of be filled." the ballots cast, stating three years opposite their names, Gilleland received more than Ammon. Thirty-three tickets, with "stickers" thereon, were voted with the name of Ammon thereon. They were so pasted over the name of a candidate printed on the ticket as to cover his name, and also the length of the term designated. On some other tickets Ammon's name was so pasted as to cover two names, and the designated term opposite each. On a few ballots Ammon's name was found without a sticker and without any indication of the length of term opposite thereto. It is a fair inference from this section of the Act of April 11, 1862, that the Legislature intended that at any given election to fill vacancies, those ballots which designate the term of office for which the school director is voted shall be counted, and those which do not contain such designation shall be rejected; and that in only one case shall such imperfect ballots be counted, viz., where all the voters have been negligent, and none of the ballots voted designate the term of office. Our Supreme Court has lately decided (Milligan's Appeal, 37 Legal Intelligencer, 158) "that where several incumbents are to be chosen to hold the same office for different terms, ballots which do not specify for which of the terms they are intended should be rejected." In contests of this nature the inquiry is, not what the voter intended, but what intention he had expressed by his written or printed ballot: People v. Tisdale, supra; Milligan's Appeal, supra. Counsel for appellee contended that the cases cited by the appellant did not affect this case. In Milligan's Appeal there was nothing whatever to indicate for which of the terms the disputed ballots were intended. Here all the ballots fairly indicated on their face the term for Gilleland was not elected. Decree reversed, and it is ordered that the petition be dismissed, and that John A. Gilleland be reinstated in his said office for the term of three years, according to the certificate of election given to him. JACOB HEILMAN. most of the ballots clearly stated on their face a general rule, must be expressed by his written the term for which each candidate was intended. or printed ballot. It is true, some inaccuracies It was agreed before the commissioner ap- in the name of a candidate, or in the manner of pointed to take testimony, that the ballots cast spelling it, may be proved by parol to give effect for the term of one and two years should be to the intention of the elector. That is not this omitted from his report, excepting such as bear case. Here the attempt is by mere inference on the contest between Ammon and Gilleland | to create a term which the voter did not attempt for the term of three years. We understand to declare. Where officers for the same office this to mean that votes cast for either of are to be chosen for different terms, the ballots them for a term of one or two years should not must specify the term for each person voted for, be counted on their term of three years, but unless the case comes under the Act of 11th of might be considered in determining how many | April, 1862, supra; Milligan's Appeal, 37 Legal votes were cast for each for the term of three Intelligencer, 158. The learned judge therefore years. If any votes were cast for Ammon for erred in counting the thirty-three votes for either one or two years, it lessens the probability | Adam Ammon, and in declaring that he was that the thirty-three votes were all intended for duly elected as school director in the Fifth three years. If other ballots were cast for him | ward of Allegheny city, at the election held on for a less term than three years, these might so the 17th of February, 1880, for the term of three have been intended. Certain it is several votes, years, instead of John A. Gilleland, to whom a not "stickers," were cast for him without desig-certificate of election was given, and that said nating any term. On some ballots he was the only director voted for, and no term was specified. It may be conceded, if the sticker had been pasted over the name only of another candidate, leaving visible the designated term opposite, that term would apply to the name on the sticker; but we cannot draw any such inference when the term is also covered. The effect of THOMAS MONTGOMERY, Defendant below, v. covering the name and the term is the same as if they were both entirely erased; that which is pasted over is all that is visible to the eye of the officers of the election. They have no authority to remove the "sticker" and to decide that one part beneath is inoperative, and another part remains in full force. We agree with the authorities cited, that placing a paster containing one name ovor another name, indicates an intention to substitute one name for another; and if it be placed over another name which is under the title of office, it indicates an intention to substitute for that office the name on the paster. In such case, the name of the person voted for and the term, are both clearly shown on the ballot. There is no room for doubt. The ballot shall be adjudged to be just what its face declares. Apply that rule to the present case. The ticket was headed "School Directors." Under that title of office was found the name of Ammon. Those tickets were undoubtedly intended to be votes for him as school director; but they stopped there. The electors voting them did not designate any specific term. For the court to determine the length of time intended by the persons casting those votes would be based on mere conjecture. It is just as uncertain as if everything printed on that line had been obliterated, and Ammon's "sticker" been pasted at the bottom of the ticket, and no term written opposite. The intention of the voter, as At the trial before a magistrate of an action brought as to prevent objection thereto being made in a future With jurisdiction agreed to, the action was subject to the Error to the Court of Common Pleas of Armstrong county. Thomas Montgomery, the plaintiff in error, was the administrator of the estate of Jacob Heilman, Sr., deceased, who was the father of the defendant in error. He filed his account in the Orphans' Court of Armstrong county, it was referred for distribution, and the auditor awarded to each of the heirs the sum of $87.00. The defendant in error delayed calling for the amount awarded him for some time, and when |