KFP 520 3é/ /fo Qornell Law School Library eo “an RECOMMENDATIONS OF BINNS’S JUSTICE OF THE PEACE. PHILADELPHIA, January 28, 1840. Dear Sir :— The sheets of ‘‘ Binns’s Justice,” which you did me the honor to submit to my inspec- tion, have been carefully examined; and though sensible that nothing detracts so much from the value of a recommendation as an apparent disposition to overpraise, I teel con- fident that the book will fully bear me out in saying, it is a well-digested compend of all eee is necessary to qualify a young magistrate for a useful and honorable discharge of his ‘unctions. It offers to him the fruits of long experience and accurate research ; and it opens to him a repository of legal principles, with minute directions for their use, from which he may ae draw whatever is necessary to conduct him safely in the new and untrodden path of his duty. The Docket-Entries, for instance, given as specimens of method in recording the general parts and transactions of a suit—matters in which, more frequently than in any other, magistrates are at fault—though compendious, are sufficiently full; and a reasonable attention to the marginal specimens of taxation, will guard the unwary from those inad- vertent charges of fees, which serve too often to put the magistrate in the power of the suitor, and to involve him in a contest about farthings, which may cost him dollars; to say nothing of the loss of character, which, right or wrong, follows an infliction of the penalty annexed to extortion. These, however, are comparatively trifling instances of the value of the book: as a manual, it will be more signally useful in furnishing a safe and ready guide in the most somplicated forms of proceedings, such as summary.convictions, and many others. The matter is, for the most part, original, and supplies whatever has been omitted in other treatises. It will afford assistance, not only to the judicial magistrate, but to every county and township officer; and it will reward the citizen, for a careful perusal of it, with much exact knowledge of his civil and political rights, as well as of his correlative duties. Not doubting that the inculcation of moral principle which pervades the whole, will influence the character, and elevate the standing, of the magistracy, I am, dear sir, Your obedient servant, JOHN B. GIBSON, Chief Justice of Pennsylvania. I fully concur in the above. MOLTON C. ROGERS, One of the Justices of the Supreme Court of Pennsylvania. 1 have seen a portion of Mr. Binns’s proposed publication, relative to justices of the peace, and think it will furnish an excellent manual on the subject, more especially to the magistracy. It seems to me to be well adapted to the present wants of the commu- ity. 4 si THOMAS SERGEANT, One of the Justices of the Supreme Court of Pennsylvania. Philadelphia, January 31, 1840. Jupce Huston [of the Supreme Court of Pennsylvania] presents his compliments to John Binns, Esq., and informs him that since the sheets of his book were left for persual, he has been too unwell to peruse much of it. He has been in court every day, but at home has been lying on a bed most of his time. He can, therefore, only say, that from the very limited inspection of the work, he has formed a very favorable opinion of it, and believes it will be what, from his knowledge of the author, and from the general character of the author, he, and the community, expected, viz., a full and accurate trea- tise on the office and duties of a justice of the peace. February 1, 1840. (i) RECOMMENDATIONS OF THE SECOND EDITION. February 3, 1845. Drar Sir :— The forthcoming “ Magistrate's Daily Companion” is u decisive improvement on “ Binns's Justice.” Its abstracts of reported cases, arranged under proper heads, offer, not only to the magistrate, but the citizen of any profession, a cueap and easy means of obtaining a competent knowledge of the laws under which he lives. In affairs of magni- tude he will, of course, consult a professional adviser, but the ordinary transactions of business momentarily require a familiar knowledge of common-place principles, which he may more readily obtain from the digested summary now offered to him, than from the scattered pages of a law-library, were it even at hand. For instance, the farmer, the laborer, the mechanic, or the shop-keeper, who attends to your instructions, will no longer be in danger of losing the price of his work or his goods, from ignorance of the few and simple elements of book-entries to charge a customer. These abstracts are not only accu- rately made, but adapted to popular apprehension ; and I feel confident the work will supply, for the present, all that was wanted. - Very truly, your obedient servant, JOHN B. GIBSON, Chief Justice of Pennsylvania. To Mr. ALDERMAN BINNs. Philadelphia, January 4th, 1845. Dear Sir :— I have carefully examined, with much satisfaction, a portion of your “ Magistrate's Daily Companion, and Business-Man’s Legal Guide.” Your arrangement is capital, and you have taken great pains to insure its legal accuracy. It should be in the hands of every magistrate, as well as young lawyer and man of business. I wish it general circulation, because I am confident it will be of great utility. You deserve the thanks of the community for this work. I have no doubt it will live when you are dead. Every relation in life will find your book useful. With respect, your obedient servant, THOS. BURNSIDE, One of the Justices of the Supreme Court of Pennsylvania. Alderman Jouy Brinys. RECOMMENDATION OF THE THIRD EDITION From tHe Jupcss or roe Surrewe Court or PENNSYLVANIA. arc Kay & Brotuer :— entlemen: Binns’s Justice is not only the best, but the only ver have on the subject. The present edition, containing, as it ane a ieee ation ete able and well-digested matter, makes it all that the magistrate can desire. ; JOHN B. GIBSON, Chief Justice of the Supreme Court, MOLTON ©. ROGERS, T. BURNSIDE, R. COULTER, THOS. S. BELL, Justices of the Supreme Court, (ii) BINNS’S JUSTICE, OR Meagistrate’s Daily Companion. A TREATISE ON THE OFFICE AND DUTIES oF ALDERMEN AND JUSTICES OF THE PEACE, IN THE COMMONWEALTH OF PENNSYLVANIA INCLUDING ALL THE REQUIRED FORMS OF PROCESS*AND DOCKET-ENTRIES, AND EMBODYING NOT ONLY WHATEVER MAY BE DEEMED VALUABLE TO JUSTICES OF THE PEACE, BUT TO LANDLORDS, TENANTS AND GENERAL AGENTS; AND MAKING THIS VOLUME WHAT IT PURPORTS TO BE, A SAFE LEGAL GUIDE FOR BUSINESS MEN, ORIGINALLY COMPILED BY JOHN BINNS, AND AFTERWARDS CORRECTED AND ENLARGED BY THE LATE FREDERICK C. BRIGHTLY, Esq. TENTH EDITION. REVISED, CORRECTED AND GREATLY ENLARGED BY FRANK F. BRIGHTLY, Esa. PHILADELPHIA: KAY & BROTHER, LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS. 1895. Lbyyy Entered, according to the Act of Congress, in the year 1895, by KAY & BROTHER, in the Office of the Librarian of Congress, at Washington. PREFACE TO THE TENTH EDITION. In the preparation of this revised edition of Binns’s Justice the present author has been careful not to interfere with the work which has been so well done by his predecessors, except where it became necessary to strike out obsolete, repealed or unconstitutional laws. The present author in this revision has also added such new enactments and decisions as have appeared since the pub- lication of the ninth edition, and whenever it became necessary to cite an act of assembly he has referred to the page of the twelfth edition of Brightly’s Purdon’s Digest which has just been published. The Law FoRMS and DOCKET-ENTRIES and BILLS OF Costs have also been again revised and made to con- form with the law as it is to-day, and the author is confident that justices, magistrates and business men may still rely upon this publication as a safe guide. F. F. BRIGHTLY. PHILADELPHIA, 1 May 1895. (v) PREFACE TO THE NINTH EDITION. BINNS’S JUSTICE or MaaistRaTe’s Dairy ComPANION, has for many years been favorably known to the Legal Pro- fession, and to the Magistracy of Pennsylvania ; so much so as to have been pronounced by the unanimous certificate of the Judges of the Supreme Court, as “not only the best, but the only very good book that we have on the subject.” The enact- ment, however, of the new Constitution of 1874, and the pas- sage of the numerous acts of assembly necessary to carry its provisions into effect, since the publication of the last Edition of this work in 1870, had rendered it, not only, no longer, what it professed to be, “a safe legal guide to business men,” but a guide which, if followed, might oftener lead astray, than con- duct the inquirer upon the direct path of legal duty. This rendered necessary an entire revision of the work, which has been almost wholly re-written by the Editor, who has not only remodelled the book and adapted it to the present state of the law, but has added many new Titles, not before contained in it. The Forms and DocKEet-ENTRIES, as also the Bills of Costs, have been revised and made to correspond with the requirements of the recent statutés; and it may now again be confidently relied on as a safe guide to the Magistrate and Business Man. In this book, and its companion, “ DunuApP’s Forms,” the (reputation of which is so well established as to need no eulogy) the Justice of the Peace will find all the information necessary to a correct discharge of the important duties con- fided to him by the Laws of Pennsylvania. The Eleventh Edition of Purdon’s Digest, published in 1885, has been referred to, whenever it became necessary to cite an Act of Assembly; and the Decisions of the Supreme Court have been incorporated to the 107th volume of the State Reports inclusive, as well as the statutes enacted at the session of 1885. F. C. B. PHILADELPHIA, 15 July 1886. : (vi) PREFACE TO BINNS’S JUSTICE. Lone and deeply impressed with the influence which magistrates must necessarily exercise over the public mind, it has appeared to the writer, that the man who should most effectually turn that. influence to the insurance of the public peace, and of honesty and fair dealing, between man and man, would render an essential and important service. Justices of the peace who understand their rights, and discreetly perform their duties, obtain the respect of their fellow-citizens. In the volume now presented to the public, it is hoped, and believed, that the law is plainly laid down; that honest and hon- orable feelings are cherished; and that everything calculated to encourage a spirit of contention or litigation is frowned upon. The wish of the writer is to place the magistracy in high and enviable seats; there, to exhibit examples of stern integrity; respected by all; feared only by evil-doers. It is not presumed, that much is accomplished in this volume ; yet, it is confidently hoped, that whatever may be its influence, it will be found on the side of the Constitution and the Laws; sturdily contending, for ‘‘ Virtue, Liberty, and Independence.” The writer is conscious of the want of many, and not incon- siderable, qualifications to prepare a work of the character he has ventured to undertake and tocomplete. He has labored long and faithfully, and with good intentions: he trusts that the industry and experience thus devoted, has, in some measure, compensated for the want of early professional habits and acquirements. He has been cheered on his way by encouragement from many, whose encouragement did him honor, while it inspired him with hope and confidenée. He is especially under obligations to the (vii) vili PREFACE. gentlemen of the bar. They have not only freely bestowed their advice, and corrected his errors, but some of them, with a friend- liness and regard, which le will never forget, have given their time, and their talents, and their knowledge, to contribute to the more perfect completion of this work. Care shall be taken, from time to time, to note whatever improve- ments or additions shall be proposed, or which may suggest them- selves; to the end, that by unwearied attention, and constant watchfulness, the work may be made to deserve public approba- tion. To assist in accomplishing this object, advice, information and correction, are respectfully invited. An anxiety to make this volume useful to men of business, generally, and a desire to avoid references from one part of the work to another, have, it is feared, occasionally caused the pub- lication of matter which, however its usefulness may be acknowl- edged, may sometimes be thought out of place. This anxiety and desire have also caused the publication of directions so minute and particular, that they may be regarded as of a character too humble and familiar to find a place in this volume. The same feelings have induced the writer, in several places, to reiterate principles and directions, which he regards as especially valuable. It has been felt that many will come to the reading of this volume with but little knowledge of law, and none of the practical duties of a justice of the peace. Thoroughly to imbue their minds with first principles, with the great truths upon which all the duties of the magistracy turn, the writer has made many repeti- tions, and but few references. Such as the volume is, he commits it to the public, with a reasonable confidence that it will be useful; that it will have some influence in the administration of the law; and that whatever tbat influence may be, it will be on the side of justice. JOHN BINNS, Paivaperata, 1 February 1840. TABLE OF CONTENTS. Constitution of the United States Constitution of Pennsylvania Vocabulary of Law Terms Technical Law Terms explained . Law Phrases, &c., translated . Abatement Abduction Abortion Academic Degrees . Accessory Actions at Law ; Actions against Justices of the Pace s Acts of Assembly . Adulteration Adultery Advice Affray Agricultural Goeiatieas Amendment Appeals Apprentices Arrest for debt Arson Assault and Battery Assignments Assumpsit . Attachment, Dunesitc ‘ Attachment against Absent and Preudulent Debtors ‘ Attachment in Execution Attachment for Contempt . Attorneys: : Auctions Bail Bail and Ciimiimenes in ‘Gaainal Cases. Bailment Bankruptcy ‘ ‘ 3 Banks . 5 j ‘ F Barrator (ix) PAGE 15 37 67 84 81 89 92 93 94 95 99 603 140 148 149 152 154 155 156 157 164 176 178 181 183 188 189 194 201 212 213 215 216 218 223 226 227 230 ¥ TABLE OF Beneficial Societies . Bible, Family Bigamy . : : Bills of Exchange . Bonds Books required by a ¥ Magistrate : Bread and Flour ; Bribery ; Building Assweiations Buoys and Beacons Burglary Burial Grounds . Butter and Cheese . Cattle. Certiorari Cigarettes . Commissions and Dichaepes ‘ Common Carriers Common Law Common Scold . Compounding Offences Concealed Weapons Conspiracy Constables . Contract Convicts Coroner . Corporations Costs Counterfeiting Counties and Townships . Covenant Cruelty Custom and Usage Damages Debt . 3 Debtor and Crediton Deeds Defalcation Dentists Desertion Distress for Rent District-Attorneys . Divorce Docket . Docket-Entries and. Hees Dock Entries in Criminal Cases CONTENTS. PAGE 231 232 232 233 237 239 240 242 244 251 252 253 254 255 207 261 261 262 269 270 270 271 272 274 288 291 292 297 3803. 306 312 314 316 318 319 320 822 324, 331 334 334 836 844 845 347 350 362. TABLE OF CONTENTS. Dogs . Drainage Drunkenness Duelling Eaves-dropping Elections , —, Embankments, ; Embezzlement . : : ‘ ; Embracery , Engrossing, Porstalling ad Repretine - Escape ‘ : : Evidence Execution Executors and Aaoitiinteators Explosives Extortion . Factories Factors False Imprisonment False Personation False Pretences Fees . Females Fences Ferries . Fire Escapes Fires. Fireworks, &e, Firing of Woods Fish . Fixtures Floating Lumber Forcible Entry and ieiatner Forgery j Fornication and Bastardly Fortune-Telling Frauds , ; ‘ é ; ; ea Fraudulent Conveyances Freeholders Fugitives from Justice Gambling Game ‘ : Guaranty ; 3 ; : ; és Hawkers and Pedlars Holidays 500, PAGE 365 366 866 369 370 370 405 406 410 All 412 414 433 439 443 Ad4 AA5 449 450 451 451 AB5 460 460 462 464 A466 468 469 ATI 483 485 488 490 492, 495 496 897 501 502 505 611 516 518 621 xii TABLE OF CONTENTS. Homicide . Horse-Racing Horse-Stealing . House of Refuge Tce Incest Indictment Infants . Informers . Inns and Taverns . Insolvent Laws . Instalments Insurance . a Intelligence Offices Interest Jails Joint-stock Companies Judgment Judgment, Lien ae : Jurisdiction of Justices of the — Justices of the Peace, or Aldermen Justices of the Peace, Actions Against Justices of the Peace, Jurisdiction of, under U. 8. Laws Landlord and Tenant Larceny and Receiving Stolen Goods Law Forms , ‘ Lewdness Libel Lien . ‘ Limitation of Ration Limited Partnership . Lotteries Magistrates’ Courts Malicious Mischief Malicious Prosecution Malicious Trespass . Markets Marriage Married Women Master and Servant Mayhem Mechanics’ Lien Military Orders . Milk. Mill-Dams ie 690, PAGE 523 526 530 531 535 5386 5387 538 543 544 503 562 562 565 566 569 571 574 576 578 581 603 607 609 648 647 678 680 682 684 769 689 694 695 702 699 703 704 708 715 717 718 737 738 740 TABLE OF CONTENTS. xiii ; PAGE Misfeasance . ; 3 : ‘ ‘ . ; . TAL Money ‘ ’ ; : . ‘ ‘ : : ; ‘ ‘ 741 Name . e : ‘ F 3 3 7 ‘ ‘ ‘ . T42 Naturalization iaive : s 3 ‘ $ is : 7 ‘ 923 Negligence . : ; . . ‘ . ; : , : . 743 Notary-public . j . 7 ‘ : ; ‘ . ; ‘ 745 Notice . F 3 A : 5 ¥ : ‘ : . TAT Nuisance . 7 : ‘é ‘ ‘ s 3 2 2 ; F 748 Oaths and Affirmations . Z ‘ : A . 5 A e . 750 Officers, Public . ji ‘ ‘ i . . - 3 i { 752 Opium Joints 4 4 . ‘ . ‘ . . : ‘ . Td4 Original Entries ; 5% : . : . : . : : 756 Parent and Child . : . : é ‘ 3 4 ‘ - . 759 Partnership . ; . : . . ‘ . . : : 761 Party-walls. : ‘i : : - 7 . . : . . 75 Pawns or Pledges ‘ s : : 5 os : : ‘ 776 Penalties : ‘ . . 3 : : ; : . TTT Perjury and Subomation ‘ < es <% a a ‘ ‘ : 778 Physicians. : . . 7 . 3 : ; : ‘ . 780 Poisons. : 5 5 * é % F : ; 5 é 786 Poor laws : 2 ‘i ° ‘ ; ‘ - ‘ j . 788 Principal and Agpat : 2 & : : . F : : : 800 Privilege é : 3 i ‘ - é 3 . ; j . 801 Prize-Fighting . 2 - ee) Mee , ‘ ‘ : 803 Process . ‘ ‘ ‘i ; é ‘ i : : : ‘ . 803 Profaneness : afc oe 2 i - Fi 5 j 4 ‘ 805 Promissory Notes . a. us . . ‘ : : . 807 Prothonotary. , s ; i : ; : : 814 Purchasers at Sheriffs’ " Sales - 5 : 2 , 3 : . . 815 Race and Color . : 3 “ _ 4 ; ; i , . 821 Railroads ‘ zi ‘ j . . : ‘ ‘ ; . 821 Rape . : = : : , : F : . ; é 822 Receipts . é : ‘ : : . : ‘ . ‘ 3 . 824 Records . A r 2 ‘ * : 825 Riots, Routs and “Unlawful "Assemblies _ é ‘ ‘ F 5 . 825 Roads and Highways . ; ‘ 3 ‘ : : ‘ ‘ ‘ 828 Robbery i ; ‘ : ; . . . . ‘ : . 830 Sale of Real Estate . : ; ‘ : ‘ ‘ 3 : : 833 Sale of Personal Property . : ‘i ‘ : ‘ ie . 834 Scire Facias ‘ : , ‘ 3 3 $ ‘ : ; : 838 Seal 5 é 5 ‘ fi : 5 ‘ a 3 i : . 839 Search-Warrant . Z ‘ F i ; é i i 840 Seduction ‘ ‘ : é : . ‘i ‘ z P ; . 842 Shipping . ‘ 5 ‘ % ‘ ‘ - 5 s i é 843 Sodomy . : ; : F . : ; . ; . x . 843 xiv TABLE OF CONTENTS. PAGE Strays : ‘ ij é 3 . . ‘ . . 844 Summary oavictienis. Sie RS RS OR Oe Ce Se Summonsfor Debt . . . . »© «© «© + © + 851 Sunday . a‘ - - 7 7 6 . 3 : . . 804 Surety of the Pein : 7 : : ‘ ‘ j ‘ : : 858 Swine . . ‘ 7 . 7 . . . ‘i , ; . 860 Telegrams . : . : : . . . . : : . 862 Tender . 3 - ‘ . < A i . . ‘ é . 864 Theatres. . : ‘ ee : : : é si ; 865 Threatening Letters ‘ i ‘ : ‘ . < ‘ . . 868 Timber : x : ‘ ‘ ‘ 2 ‘i : : 3 869 Time. 4 3 ‘ ‘ ‘ 5 ‘ . ‘ : . . 871 Trade-Marks . ‘i ‘ z “ - ‘ : 3 ; : 873 Trades-Unions j ‘i - 5 - 3 é 3 ‘ é . 8i7 Tramps. ‘ i 3 3 6 : ‘ ’ z f 3 879 Transcript . a ‘ : é : F $ . ‘ : . 880 Treason. - 3 - ‘ 5 . “ : - : 882 Trespass and Trover ; : . . : ‘i : : é . 883 Vagrants . ; : ‘ : r : ; ‘ . é ‘ 888 Wagers . é ‘ ‘i ‘ . . : é . ‘ i . 892 Wages : ; ‘ : : 5 : ‘ : ; é 894 Warrant or Capita . z : : : : ; ‘ ; . 899 Weights and Measures : ; : 5 . 3 ; ‘ : 901 Wild Animals : ; : , : ; : : ‘ . . 901 Witnesses . ‘ me 1m ‘ ; : : ; : ; ; 902 APPENDIX. Code of Criminal Procedure . < z . 7 ‘i A 3 . 903 Naturalization of Aliens. 3 ¥ : : : : ‘ ‘ 923 Authentication of Records . . 3 5 2 : s ‘ . 925 Statute of Fraudulent Conveyances . ‘ ‘ : < ‘ : 927 Rights and Duties of Jurymen , é . 5 j ; : . 929 THE CONSTITUTION OF THE UNITED STATES OF AMERICA: We, Tae PropLe or THE UniTED Srarus,? in order to form a more perfect anion,’ establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America® 1 This constitution went into operation on the first Wednesday in March 1789. 5 Wheat. 420. 2 The constitution was ordained and estab- lished, not by the states in their sovereign capaci- ties, but emphatically, as the preamble declares, by ‘‘the people of the United States.” 1 Wheat. 324. 6 Call 277. It required not the affirmance, aud could not be negatived by the state govern- ments. When adopted, it was of complete obliga- tion, and bound the state sovereignties, 4 Wheat. 404; 6 Id. 414; 2 Dall. 471; which are not inde- pendent states, with respect to the government of the United States; but are dependent and subor- dinate for all the specific purposes for which it was adopted, The General Parkhill, 19 July 1861, Pamph.; but retain, in severalty, a distinct but qualified sovereignty. 3 Bl.C. C. 88. It is not, however, to be inferred from the language of the judges of the supreme court, in these cases, that the preamble to the constitution points to the ma- jority of the whole people of the United States, in their aggregate collective capacity, as the ori- ginal depositary of this power; the true doctrine would seem to be, that the constitution was adopted by the people of the several states which had been previonsly confederated under the name of the United States, acting through the delegates by whom they were respectively represented in the convention which formed the constitution. Bald- win’s Constitutional Views 29-42. And see 6 Pet. 569, where it is said by McLean, J., to have been formed “by a combined power exercised by the people, through their delegates, limited in their sanctions to the respective states.” See also 2 Wilson’s Works 120. 2 Spr. 602. 8 The union of the states is indissoluble by the act of any portion of them. 7 Wall. 700. 1 Bond 556. An ordinance of secession is a mere nullity. 6 Wall. 443. The right of secession does not exist under the constitution; Grier, J., in United States v. Smith, 21 Oct. 1861. Of the same opinion was that eminent lawyer and statesman, Judge Black, a member of President Buchanan’s cabinet, at the breaking out of the rebellion. But the perpetuity and indissolubility of the Union by no means im- plies the loss of distinct and individual existence, or of the right of self-goveroment by the states; the constitution looks to an indestructible union, composed of indestructible states. 7 Wall. 700. The relation of one of the United States to its cit- izens is not that of an independent sovereign state to its subjects; a sovereign state seeking redress of another sovereign state, on behalf of its sub- jects, can resort to war on refusal, which a state cannot do. 108 U.S. 76. The government of the United States, though limited in its powers, is su- preme within its sphere of action. 4 Wheat. 405. 1 Bond 556. 100 U.S. 257. Its authority ex- tends over the whole territory of the Union, act- ing upon the states, and the people of the states. Thid. 4 The preamble to the constitution is constantly referred to, by statesmen and jurists, to aid them in the exposition of its provisions. See 2 Dall. 475; 12 Wheat. 455-6. 1 Story Const. ch. 6. 5 The United States is a government, and con- sequently, a body politic and corporate, capable of attaining the objects for which it was created, by the means which are necessary for their at- tainment. 2 Brock. 109, 1 Dall. 44. Through the instrumentality of the proper department to which those powers are confided, it may enter into contracts not prohibited by law, and appropriate to the just exercise of those powers. 5 Pet. 128. 10 Ibid. 343. 15 Ibid. 290. As a corporation, it has capacity to sue, by its corporate title. 1 Brock. 177. 3 Wheat. 181. It may compromise a suit, and receive real and other property in dis- charge of the debt, in trust, and sell the same. 3 McLean 365. 12 How. 107-8. (15) 16 CONSTITUTION OF THE UNITED STATES. ARTICLE I. é OF THE LEGISLATIVE POWER. Sxor. I. All legislative powers herein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.* Secr. II. 1. The house of representatives shall be composed of members chosen every second year by the people of the several states ;? and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. : 2. No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States,® and who shall not, when elected, be an inhabitant‘ of that state in which he shall be chosen.$ 3, Representatives and direct taxes® shall be apportioned among the several states’ which may be included within this union, according to their respective num- bers ; which shall be determined by adding to the whole number of free persons, in- cluding those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to choose three, Massa-- chusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.® 4. When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.’ 5. The house of representatives shall choose their speaker and other officers ; and shall have the sole power of impeachment. Szor. IIT. 1. The senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof for six years ; and each senator shall have one vote. 2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class, at the expiration of the fourth year, and of the third class, at the 1 See 1 Story Const. ch. 7-8. Alabama. 9 Michigan ~ 12 2 See 1 Cong. Elect. Cas. 69, Arkansas 6 Minnesota . c 3 See Ibid. 23. California 7 Mississippi T 4 See Ibid. 224. An inhabitant of a state, Colorado 2 Missouri if is one who is ‘bond fide a member of the state, Connecticut . 4 Montana 1 subject to all the requisitions of its laws, and Delaware 1 Nebraska . 6 entitled to all the privileges and advantages Florida 2 Nevada .. 1 which they confer.” 1 Cong. Elect. Cas. 411. Georgia . 11 New Hampshire 2 A person residing in the district of Columbia, Idaho . 1 New Jersey . 8 though in the employment of the general gov- Illinois 22 New York. . 84 ernment, is not an inhabitant of a state, so as Indiana . 13 North Carolina 9 to be eligible to a seat in congress. Ibid. But Towa S28? oat aE Rhode Island 2 a citizen of the United States residing as a Kansas . . . 8 South Carolina 7 public minister at a foreign court, does not lose Kentucky . . 11 South Dakota 2 his character of inhabitant of that state of Louisiana . . 6 Tennessee 10 which he is a citizen, so as to be disqualified for Maine ... 4 Texas . : 13 election to congress. Ibid, 497. Maryland . . 6 Vermont . 2 5 The constitution having fixed the qualifica- Massachusetts . 13 Virginia. : 10 tions of members, no additional qualifications North Dakota . 1 Washington 2 can rightfully be required by the states, 1 Ohio Re ves” sical West Virginia 4 Cong. Elect. Cas. 167, Oregon . . . 1 Wisconsin . 10 6 Direct taxes, within the meaning of the con- Pennsylvania . 30 Wyoming 1 stitution, are only capitation taxes, and taxes as on real estate, 102 U.S. 586. The following territories of the United States 7 This does not exclude the right to impose a each send one delegate to co iz: - direct tax on the district of Columbia, in pro- ka, Arizona, New Mexisa, Gkinhows ai ie portion to the census directed to be taken by the 10 The executive of a state may receive the constitution. 5 Wheat. 317. resignation of » member, and issue writs for a ® Altered by the 14th amendment. new election, without waiting to be informed b ‘9 Under the eleventh census, the states are the house that a vacanoy exists. 1 Con Elect, entitled to the following representation in con- Cas. 44. Ibid. 92. e . gress, viz.: CONSTITUTION OF THE UNITED STATES. 17 expiration of the sixth year, so that one-third may be chosen every second year} and if vacancies happen by resignation? or otherwise, during the recess of the leg- islature of any state, the executive thereof may make temporary appointments® until the next meeting of the legislature, which shall then fill such vacancies. 3. No person shall be a senator who shall not have attained the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. 4. The vice-president of the United States shall be president of the senate,5 but shall have no vote, unless they be equally divided. _ 5. The senate shall choose their other officers, and also a president pro tempore in the absence of the vice-president, or when he shall exercise the office of president of the United States. 6. The senate shall have the sole power to try all impeachments, for that purpose, they shall be on oath or affirmation. When the president of the United States is tried, the chief justice shall preside 3° and no person shall be con- victed without the concurrence of two-thirds of the members present.’ 7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. Sscr. IV. 1. The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof ;® but the congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators. 2. The congress shall assemble at least once in every year ; and such meeting shall be on the first Monday in December, unless they shall, by law, appoint a different day. Szor. V. 1. Hach house shall be the judge of the election, returns and qualifi- cations of its own members,” and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. When sitting 2, Hach house may determine the rules of its proceedings, punish its members” 1 The senate is a permanent body; its exist- ence is continued and perpetual. Cushing’s Law of Legislative Assemblies 19. 2 The seat of a senator is vacated by a resigna- tion addressed to the executive of the state, not- withstanding he may have received no notice that his resignation has been accepted. 1 Cong. Elect. Cas. 869. 5 It is not competent for the executive of a state, during the recess of the legislature, to appoint a serator, to fill a vacancy which shad/ hoppen, but has not happened, at the time of the appointment. 1 Cong. Hlect. Cas. 871. Andifa vacancy occur, during the recess of the legislature, which subsequently assembles, and adjourns with- out electing a person to fill the vacancy, it is not competent for the governor to appoint, during the recess following such adjournment. Ibid. 874. £ See 1 Cong. Elect. Cas. 851. 5 See 1 Story Const. 3739. 6 When the chief justice presides in the senate, on the impeachment of the president, he is a con- stituent member of the court, and has a right to vote as such. 1 Johns, Trial 185, 187. 8 Cow. 398. Ibid. 761. 2 Wend. 213. 7 A judgment of impeachment in the English house of lords, requires that at least twelve of the members should concurinit. And “a verdict by less than twelve would not be good.” Com. Dig. Parliament, L. 17. 8 Where the legislature of a state have failed to * prescribe the times, places and manner” of hold- ing elections, as required by the constitution, the governor may, in case of a vacancy, in his writ of election, give notice of the time and place of election ; but a reasonable time ought to be al- lowed for the promulgation of the notice. 1 Cong. Elect. Cas. 135. ® In the exercise of such supervisory power, congress may impose new duties on the officers of election, or additional penalties for breach of duty, or for the perpetration of fraud; or provide for the attendance of officers to prevent frauds, and see that the elections are legally and fairly con- ducted. 100 U.S. 372. Ibid. 399. 109 Ibid. 3. Ibid. 65. 4 Woods 189. See 1 R.S. 3 15-19, for the mode of electing senators, By % 23, members of the house of representatives are to be elected by single districts. 10 The constitutional term of congress does not expire until 12 o’clock at noon on the 4 March, 11 Stat. App’x, ii. 11 The returns from the state authorities are prima facie evidence only of an election, and are not conclusive upon the house. 1 Cong. Elect. Cas. 157. Ibid. 353. And the refusal of the executive of a state to grant a certificate of elec- tion, does not prejudice the right of one who may be entitled to a seat. Ibid. 95. 12 [twas decided in 103 U.S. 168, that no mere legisiative body, without judicial powers, can convict for a contempt, one who is neither a mem- ber nor an officer of the house ; citing, 1 Moo. P. C. 63, where it was determined by the judicial com- mittee of the privy council, that no such power was possessed by the legislative assembly of New- foundland ; and the older cases to the contrary were overruled. The same point was re-affirmed, in 11 Moo. P. C. 347, and 4 Moo. P. C. (N. 8.) 770. See also, 14 Gray 226. 18 CONSTITUTION OF THE UNITED STATES. for disorderly behavior, and with the concurrence of two-thirds, expel a mem- ber. : 3. Hach house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy ; and the yeas and nays of the members of either house, on any question, shall, at the desire of one-fifth of those present, be entered on the journal. 4. Neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. ; Sect. VI. 1. The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall, in all cases, except treason, felony and breach of the peace,? be privileged from arrest,* during their attendance at the session of their respective houses, and in going to, and returning from, the same ;* and for any speech or debate in either house, they shall not be questioned in any other place. 2. No senator or representative shall, during the time for which he was elected, be appointed to any civil office’ under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office.® Sxor. VII. 1. All bills for raising revenue shall originate in the house of repre- sentatives; but the senate may propose or concur with amendments as on other bills. 2. Every bill which shall have passed the house of representatives and the senate, shall, before it become a law be presented to the president of the United States; if he approve, he shall sign it,’ but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after recon- sideration, two-thirds® of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases, the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays excepted), after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the 1 It seems to be settled, that a member may be expelled for any misdemeanor, which, though not punishable by any statute, is inconsistent with the trust and duty of a member. Blount’s Case, cited 1 Story Const. 3 838. And see 1 Hall L. J. 459. 2 This would seem to extend to all indictable offences, as well those which are in fact attended with force and violence, as those which are only constructive breaches of the peace of the govern- ment, inasmuch as they violate its good order. 1 Bl. Com. 166. 1 Story Const. 3 865. But see 4 W N.C. 540. 8 They are privileged not only from arrest both on judicial and mesne process, but also from the service of a summons or other civil process while in attendance on their public duties. 4 Dall. 107. 1 Wall. Jr. C. C. 191. 1 Story Const. 2 860. See 3 Dall. 478. 4 Ibid. 341. 4 Y¥. 347. Contra, 1 Chicago Leg. News 245. 4 They are privileged only while at congress, or actually going to, or returning thorefrom. 2 Johns. Cas. 222. Seo 1 Ibid. 415. 4 Wond. 204. 4 Y. 847. But one who goes to Washington, duly com- missioned to represent a state in congress, is privi- leged from arrest, eundo, morando et redeundo, and though it be subsequently decided by congress that he is not entitled to a seat there, he is pro- tected, until he reaches home, if he return as soon as possible after such decision, 2 Clark 450. 8 Rh. I. 453. 5 The acceptance by a member of any office under the United States, after he has been elected to, and taken his seat in, congress, operates as & forfeiture of his seat. 1 Cong. Elect. Cas. 122. So does the acceptance of a military commission in a volunteer regiment mustered into the service of the United States. 2 Ibid. 93. -Ibid. 395. § Continuing to execute the duties of an office under the United States, after one is elected to congress, but before he takes his seat, is not a dis- qualification ; such office being resigned prior to the taking of the seat. 1 Cong. Elect. Cas. 287. Ibid. 314. Ibid. 316. 7 Every bill takes effect as a law, from the time when it is approved by the president, and then its effect is prospective and not retrospective. The doctrine that, in law, there is no fraction of a day, is a mere legal fiction, and has no application in such a case. 2 Story 571. 1 Cal. 400. But Has is denied to be law. 20 Vt. 653. 21 Ibid. 8 On the 7th July 1856, the senate of the United States decided, by a vote of thirty-four to seven, that two-thirds of a quorum only were requisite to pass a bilk over the president’s veto, and not two-thirds of the whole senate. 9 Law Rep. 196. In tho ratification of treaties, it is expressly pro- vided, that two-thirds of the senators present shall concur. And see Cushing’s Law of Legislative Assemblies, 2 2387. 9 Opin. 410. CONSTITUTION OF THE UNITED STATES, 19 congress, by their adjournment, prevent its return, in which case, it shall not be a law. 3. Every order, resolution,! or vote, to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjourn- ment), shall be presented to the president of the United States: and-before the same shall take effect, shall be approved by him, or being disapproved by him, shall be re-passed by two-thirds of the senate and house of representatives, accord. ing to the rules and limitations prescribed in the case of a bill. Szor. VIII. 1. The congress shall have power— 2. To lay and collect taxes, duties, imposts and excises,? to pay the debts and provide for the common defence and general welfare of the United States ;? but all duties, imposts and excises shall be uniform throughout the United States : 3. To borrow money on the credit of the United States :4 4. To regulate commerce® with foreign nations,® and among the several states,’ 1 A joint resolution, phpnored by the president, or duly passed without his approval, has all the effect of law. But separate resolutions of either house of congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the president or of the heads of departments. 6 Opin. 680. 2 The power to levy and collect taxes, duties, imposts and excises, is co-extensive with the terri- tory of the United States. 5 Wheat. 317. And see 11 Wall. 616. 3 Congress is not empowered to tax for those purposes which are within the exclusive province of the states. 9 Wheat. 199. A tax fora private purpose is unconstitutional; a public use or pur- pose is essential to the idea of tax. 25 Wis. 167. 4 The states have no power to tax the loans of the United States. 2 Pet. 449,465. 2 Bl. 620. 2 Wall. 200. 4 McLean 26. Nor an officer of the United States for his office oremoluments. 16 Pet. 435. See 9 Law Rep. 110. But congress has no power to exempt property from taxation, unless it be made so by the constitution. 37 N. Y. 9. 5 The power of congress to regulate commerce is exclusive, at least, in all cases where the sub- jects over which it is exercised are, in their nature, national, or admit of one uniform system or plan of regulation, 5 McCrary 496; and for that purpose it reaches the interior of every state of the Union. 100 U.S. 434. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknow- ledges no limitations other than are prescribed in the constitution. 9 Wheat. 196. See 9 Sawyer 253. Commerce with foreign nations, and among the several states, can mean nothing more than intercourse with those nations, and among those states, for the purposes of trade, be the object of the trade what it may ; and this intercourse must include all the means by which it can be carried on, whether by the free navigation of the waters of the several states, or by a passage over-land through the states, where such passage becomes necessary to the commercial intercourse between the states. 4 W. C. C. 378. 18 How. 421. 6 MeLean 70. Ibid. 209. Ibid. 237. Ibid. 518. 6 Wall. 35. 10 Ibid. 454; 16 Am. L. Reg. 149. See 3 Gr. 128. This clause confers the power to impose embargoes. 9 Wheat. 191, 2 Hall L. J. 255, 272. To punish crimes upon stranded vessels. 12 Pet. 72. And to prohibit the slave crade. United States v. Bates, Pamph. 129. It does not, however, interfere with the right of the several states to enact inspection, quarantine and health laws of every description, as well as laws for reg- ulating their internal commerce. 9 Wheat. 203. 11 Pet. 102. 28 Ala. 185. 118.& R. 92. 13 Ibid. 405. Nor with their power to regulate pilots. 12 How. 299. 13 Wall. 236. 13 W. N. C. 63. 102 U. S. 572. 9 Fed. Rep. 164. 12 Ibid. 346. 16 Ibid. 480. Nor to protect their fisheries. 18 How. 71. 94 U.S. 391. 3 Gray 268. 6 A state law which requires the masters of ves- sels engaged in foreign commerce to pay a certain sum to a state officer, on account of every passen- ger brought from a foreign country into the state, or before landing any alien passenger in the state conflicts with the constitution and laws of the United States. 7 How. 283. And see 6 Wall. 31. 92 U. 8. 259. Ibid. 275. 107 Ibid. 59. 112 Ibid. 580. 6 Sawyer 640. So does a state law authorizing the seizure and imprisonment of free negroes brought inte any port of the state, on board of any vessel from any other state or foreign port. 2 Wh. Cr. Cas. 56. 1 Spr. 88. Ibid. 485. 1 Opin. 659. And so does a state law which re- quires an importer to take a license and pay $50, before he should be permitted to sella package of imported goods. 12 Wheat. 419. See 97 U.S. 566. 13 5. & R. 405. Buta state law imposing a tax on brokers dealing in foreign exchange is not repugnant to this clause of the constitution. 8 How. 73. Noris one imposing a tax on legacies payable to aliens. 8 Ibid. 490. Nor are the license laws of certain states, forbidding the sale of spirituous liquors, under less than certain large quantities. 5 Ibid. 504. 2 Houst. 612. See 4 Cal. 46-7. Nora law imposing a license tax upon all drummers or travelling agents. 6 Sawyer 295. 100 U. S. 676. Otherwise, if it discriminate against non-residents. 15 Fed. Rep.311. 12 Wall. 418. 91 U.S. 275. 100 Ibid. 434. 116 Ibid. 446, 7 The non-exercise by congress of its power to regulate commerce among the several states, is equivalent to a declaration that it shall be free from any restrictions. 91 U.S. 275. Congress have power to prevent the obstruction of any navigable river, which is a means of commerce between any two or more states, 5 McLean 426. 6 Ibid. 237. 3 Am. L. Reg. 79. 1 Biss. 546. But a court of the United States has no power to re- strain, by injunction, the erection of a bridge over a navigable river, lying wholly within the limits of a particular state, when such erection is authorized by the-legislature of the state; though a port of entry has been created by congress above the bridge. 6 Am. L. Reg. 6. And see 3 Wall. 713. 95 U.S.459. 1 Biss. 546. to be confronted with the witnesses against him;® to have compulsory process for obtaining witnesses in his favor;’ and to have the assistance of counsel for his defence. Art. VII. In suits at common law,® where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ;® and no fact tried by a jury shall be otherwise re-examined,” in any court of the United States, than according to the rules of the common law.” Arr. VIII. Excessive bail shall not be required, nor excessive fines imposed,4 nor cruel and unusual punishments inflicted. Art. LX. The enumeration in the constitution of certain rights shall not be con- strued to deny or disparage others retained by the people."# Art. X. The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. Art. XI. The judicial power of the United States shall not be construed to extend to any suit in law or equity,!* commenced or prosecuted against one of the United States,” by citizens of another state, or by citizens or subjects of any foreign state.1¢ 1 See 18 How. 276. This implies the right to notice to appear and answer, and to a remedy in court. 16 Penn. St. 257. And see 34 Ibid. 292. 2 This provision is only a limitation of the power of the general government ; it has no appli- cation to the legislation of the several states. 7 Pet. 243. Bald. 220. It is now settled, that the amendments to the constitution do not extend to the states. 7 Pet. 551. They are exclusively restrictions upon federal power, intended to pre- vent interference with the rights of the states, and of their citizens. 5 How. 434. 12 S. & R. 221. 3 Cow. 686. 20 How. 84. 1 McAll. 212. 5 Wall. 476. 7 Ibid. 321. 3 This is only to be intended of those crimes, which, by our former laws and customs, had been tried by jury. Wall. C. C. 106. 4 It must have been ascertained by law, previ- ously to the commission of the crime, not merely previously to the trial. 5 BI. C. C. 360. 5 This does not entitle him to a copy of the indictment, at the expense of the government. 4 Bl. C. C. 337. 6 This isa privilege that pertains to the trial in court, not to the preliminary proceedings. 2 Story Const. 3 1785-6. United States v. Bates, Pamph. p. 46. e 7 Any person charged with a crime in the courts of the United States, has a right, before, as well as after indictment, to the process of the court to -ompel the attendance of his witnesses. 1 Burr’s Trial 179-80. ® This includes not merely modes of proceeding Known to the common law, but all suits, not of equity or admiralty jurisdiction, in which legal rights are settled and determined. 3 Pet. 433. 3 Dall. 297, 11 How. 437. Bald. 544. It does not apply to a motion for summary relief. 24 Penn. St. 289. See 2 Fish. 642. ® The guarantee of trial by jury is intended as well for a state of war, asa state of peace; and is equally binding upon rulers and people, at all times and under all circumstances. 4 Wall. 3. The right to trial by jury is for the benefit of the parties litigating, and may be waived by them. 2 Paine 578. 3 Pet. 413. But the circuit courts have no arn to order a peremptory nonsuit, against the will of the plaintiff. 1 Pet. 469. Ibid. 476. 6 Ibid. 598. Hemp. 8. 23 How. 172. The 7th amendment applies only to the courts of the United States. 95 U.S. 294. \ 10 See 2 Cr. C. 0. 515. Ibid. 523. After a trial by jury, ina state court, it is not competent to remove the cause for a retrial on the merits in a federal court. 9 Wall. 274. 11 The common law here alluded to, is not the common Jaw of any individual state, but the com- mon law of England; according to which, facts once tried by a jury are never re-examined, unless a new trial be granted, iv the discretion of the court before which the suit is depending, for good cause shown; or unless the judgment of such court be reversed by a superior tribunal, on a writ of error, and a venire facias de novo awarded. 1 Gall. 20 12 See 7 Pet. 573-4. 18 The disfranchisement of a citizen is not an unusual punishment. 20 Johns. 459. 53 Penn. St. 112. The punishments of whipping and of stand- ing in the pillory, were abolished by act 28 Feb- ruary 1839, 25. 5 Stat. 322. See 12 8. & R. 220. 14 See 1 Story Const. 3 447. 1 W. & M. 401. 3S. & R. 169. 16 See 1 McLean 234. The rule of interpreta- tion for a state constitution differs totally from that which is applicable to the constitution of the United States. The latter instrument must have a strict construction; the former a liberal one. Congress can pass no laws but those which the constitution authorizes, either expressly, or by clear implication ; while the state legislature has jurisdiction of all subjects in which its legislation is not prohibited. 17 Penn. St.119. 52 Ibid. 474. 16 Tt does not extend to suits of admiralty or maritime jurisdiction. Bright. 9. See 7 Pet. 7. 11 Tf the state be not necessarily a defendant, though its interests may be affected by the decis- ion, the courts of the United States are bound to exercise jurisdiction. 2 How. 550. 5 Cr. 115. Otherwise, if the state be an indispensable party. 109 U.S. 446. 18 A state, by becoming interested with others 34 CONSTITUTION OF THE UNITHD Sitaino, Art. XII. 1. The electors shall meet in their respective states, and vote by bal lot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots, the person voted for as vice-president; and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each, which list they shall sign and certify, and transmit sealed? to the seat of the government of the United States, directed to the president of the senate; the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates,’ and the votes shall then be counted ;* the person having the greatest number of votes for president shall be the president, if such number be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as president, the house of represevtatives shall choose immediately by ballot the president.6 But in choosing the president, the votes shall be taken by states, the representation from each state having one vote: a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice- president shall act as president, as in the case of the death or other constitutional disability of the president. 2. The person having the greatest number of votes as vice-president shall be the vice-president, if such number be a majority of the whole number of electors ap- pointed: and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice-president ; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. 3. But no person constitutionally ineligible to the office of president shall be eligible to that of vice-president of the United States. Ant. XIII. 1. Neither slavery nor involuntary servitude, except as a punish- ment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.® 2. Congress shall have power to enforce this article by appropriate legislation. Arr. XIV. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States ;’ nor shall any state deprive in a banking or trading corporation, or by own- Chase’s Dec. 364. And this led to the passage of ing all the capital stock, does not impart to that corporation any of its privileges or prerogatives ; it lays down its sovereignty so far as respects the transactions of the corporation, and exercises no power or privilege in respect to those transac- tions not derived from the charter. 8 Wheat. 904. 8 Pet. 431. 11 Ibid. 324. 2 How. 497. 13 Ibid. 12. 15 Ibid. 309. And see 6 Wheat. 264. 108 U.S. 76. 1 On the first Wednesday in December, 1 R. 5S. 140. é 2 Before the first Wednesday in January, 1B. S. 3 140. 8 On the second Wednesday in February, IRS. 3 142. 4 The constitution does not provide by whom the votes shall be counted. 5 Ona motion to discharge a defendant arrested upon a ecapias ad respondendum, by a marshal appointed by the president de facto of the United States, the court will not decide the question whether he has been duly elected to that office. 8 Cr. 0. C. 424, 6 See 92 U.S. 543. 1 Woods 208. 7 It was determined at an carly day (1869), that this amendmont did not execute itself, but required legislation on the part of congress. the civil rights act of the 1st March 1875 (18 Stat. 395). Under the 4th section of this act, it has been determined, that the amendment not only gave the privileges of citizenship to the colored race, but denied to any state the power to with- hold from them the equal protection of the laws, and invested congress with power to enforce its provisions ; consequently, that a state Jaw which denied to them the right of serving as jurors, though qualified in other respects, was a violation of the constitution. 100 U.S. 303. And that an indictment will lie against a state officer, for ex- cluding persons of color from the jury list. Ibid. 339. A state law confining the selection of jurors to persons possessing the qualifications of electors, was enlarged in its operation, by the 15th amen2 sent, so as to embraco persons of the negro race. 103 U.S. 370. But the prohibitions of the 14th amendment havo exclusive reference to state action ; +t is the state which is prohibited from denying to any person within its jurisdiction the equal protection of the laws; tho federal statute was intended to protect the colored race against stato action, and against that alone. 100 U.S. 313. 103 Ibid, 370. 107 Thid. 110. 13 Fed. Ren. 337. 12 Ibid. 577, And as a consequenre of thir doctrine, it has been determined, that the first CONSTITUTION OF THE UNITED STATES. 35 any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.? 2. Representatives shall he apportioned among the several states, according to their respective numbers, excluding Indians not taxed; but when the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhab- itants of such state, being of twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens, twenty-one years of age, in such state. 3. No person shall be a senator or representative in congress, or elector of presi- dent and vice-president, or hold any office, civil or military, under the United States, or under any state, who having previously taken an oath, as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof; but congress may, by a vote of two-thirds of each house, remove such disability. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in su pressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. 5. The congress shall have power to enforce, by appropriate legislation, the pro- visions of this article. Art, XV. 1. The right of citizens of the United States to vote, shall not be and second sections of the civil rights act, which forbid the denial to persons of color of equal accommodations in inns, public conveyances and places of amusement, are unconstitutional, as not within the power of congress. 4 Woods 349. 109 U.S. 3. Judge Bradley there says, “ the impli- cation of a power to legislate in this manner is based upon the assumption, that if the states are forbidden to legislate or act in a particular way, on @ particular subject, and power is conferred upon congress to enforce the prohibition, this gives congress power to legislate generally upon that subject, and not merely power to provide means of redress against such state legislation or action. This assumption is certainly unsound. It is sepugnant to the 10th amendment to the consti- tation, which declares, that powers not delegated to the United States by the constitution, nor prohi- bited by it to the states, are reserved to the states, respectively, or to the people.” A state law which prohibits a white person and a negro from living together in coneubinage is not unconstitutional, though it prescribes penalties more severe, than if both were of the same race. 106 U.S. 583. 1 Woods 537. 3 Ibid. 337. 24 Alb. L. J. 118. 53 Ala. 150. 58 Ibid. 190. 3 Hughes 9. Neither does the amendment prevent a state from establishing one system of law, in one portion of its territory, and another system, in another portion. 101 U. 8. 22. Personal rights of state citizenship, such as those of attendance at the public schools, are not within the 14th amendment. 93 N.Y. 438. 10 Fed. Rep. 730. 21 Ohio St.129. 48 Ind. 327. 48 Cal. 36. Anda common carrier of passengers, independently of state legislation, has the right to make a regulation for the separation of negro and white passengers in a public convey- ance. 55 Penn. St. 209. 22 Fed. Rep. 843. 23 ‘Ibid. 318, 637. The right to sell intoxicating liquors is not one of the privileges secured by this clause. 18 Wall. 129. 97 U. S. 25. 112 Ibid. 201. 1 Where a statute of limitation has run against a claim for a personal debt, a repeal thereof, thereby removing the bar, and revesting the right of action in the creditor, is not a violation of this clause; it is otherwise, where the statute has vested the title to real or personal property in the possessor. 115 U.S. 620. 2 This is a guarantee against any encroachment upon an acknowledged right of citizenship, by the legislatures of the states. 94 U.S. 124. The term, ‘‘ due process of law,” when applied to judi- cial proceedings, means a course of legal proceed- ings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights ; to give such proceedings any validity, there must be a competent tribunal, to pass upon the subject- maiter; and if that involves merely a determina- tion of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or by his voluntary appearance. 95 U.S. 714. 96 Ibid. 97. A trial by jury, in suits at common law, pending in the state courts, is not a privilege or immunity of national citizenship, which the states are forbidden to abridge. 92 U. S.90. Nor does this clause necessarily require an indictment by a grand jury, in a prosecution for a capital offence. 110 U.S. 516. See 109 Ibid. 285. 16 Wall. 36. It does not impair the police power of a state. 113 U. §. 27. But it prohibits unequal taxation. 9 Saw- yer 165. See 118 U.S. 356. 36 CONSTITUTION OF THE UNITED STATES. denied or abridged by the United States, or by any state, on account of race, color or previous condition of servitude.? 2. The congress shall have power to enforce this article by appropriate legisla- tion. 1 The 15th amendment does not confer upon the negro the right of suffrage; but it secures him from discrimination in the exercise of the elective franchise, on account of race, color, &e. 92 U. 8. 214. The right to vote comes from the states; but the right of exemption from the prohibited discrimination comes from the United States ; the first has not been granted or secured by the con- stitution, but the last has been. 92 U. S. 542. And see 10 Biss. 283. 110 U.S. 651. The 14th and 15th amendments do not confer the elective franchise upon women. 11 Bl. C. C.200. 53 Mo. 58. 1 McArthur 169. 8 Phila. 241. 4 Chicago Leg. News 97. So also, an Indian, born a mem- ber of one of the Indian tribes, which still exists and is recognised as a tribe by the federal gov- ernment, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a state, but who has not been naturalized, nor taxed or recognised as a citizen, either by the United States, or by the state, is not a citizen within the meaning of the 14th amend- ment, and consequently not entitled to the right of suffrage, under the 15th amendment. 112 U.S. 94. In this case, there was a strong dis- senting opinion by Justices Harlan and Woods, On this question, see the opinion of Chief Justice Gibson, on the subject of negro suffrage in Penn- sylvania, prior to the adoption of the 15th amend- ment, in 6 W. 553; and that of Judge Fox in the court below, in the pamphlet report of that case. But a person born in the United States of Chinese Po residing therein, is a citizen. 21 Fed. ep. 905. THE CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA. 1874. PREAMBLE. Wz, the People of the Commonwealth of Pennsylvania, grateful to Almighty «od for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this constitution.* ARTICLE I. DECLARATION OF RIGHTS. That the general, great and essential principles of liberty and free government may be recognised and unalterably established, WE DECLARE, that— Srcr. 1. All men are born equally free and independent, and have certain inhe- rent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.? Sror. 2. All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness. For the advancement of those ends, they have, at all times, an inalienable and inde- feasible right to alter, reform or abolish their government, in such manner as they may think proper. Srot. 3. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences ;° no man can, of right, be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent; no human authority can, in any case whatever, con- trol or interfere with the rights of conscience :* and no preference shall ever be given, by law, to any religious establishments or modes of worship. Pennsylvania; not Christianity founded on any particular religious tenets, but Christianity with liberty of conscience to all men. 118. & R. 394, 400. 6 Penn. St. 96. 8 Ibid. 327. 11 Leg. Int. 1 The object of the constitution is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power of the legislature to make laws would be absolute. 1P.& W. 13. 15 N. Y. 549. 46 Ibid. 401. 6 W.& 8.117. The tule of interpretation for the state constitution differs totally from that which is applicable to the eonstitution of the United States. The latter instrument must have a strict construction; the former, a liberal one. Congress can pass no laws but those which the constitution authorizes, either expressly or by clear implication; whilst the as- sembly has jurisdiction of all subjects on which sts legislation is not prohibited. 17 Penn. St.119. @1 Ibid. 160. 52 [bid. 474. 2 See 21 Penn. St. 147. 5 Christianity is a part of the common law of 14. See 2 Story Const. 3 1871. 2 How. 199. 33 Barb. 548. 63 Penn. St. 465, Every religious society, for its own internal order, and for the mode in which it fulfils its functions, is a law unto itself, provided it keep withia the bounds of social order and morality. 41 Penn. St. 14. 42 Ibid.503. 69 Ibid. 462. 89 Ibid. 97, 101 Ibid. 363. 4 Those who keep the seventh day as their Sab- bath, may be punished for working on Sunday. 38. & BR. 48. 8 Penn. St. 322. 21 Ibid. 426. And see 22 Ibid. 114; 11 Leg. Int. 14. 17 8.& R. 160. (37) 88 CONSTITUTION OF PENNSYLVANIA. Szor. 4. No person who acknowledges the being of a God, and a future state of rewards and punishments, shall, on account of his religious sentiments, be ce qualified to hold any office, or place of trust or profit, under this commonwealth. Sxot. 5. Elections shall be free and equal; and no power, civil or military, shall at any time, interfere to prevent the free exercise of the right of suffrage. ; Sect. 6. Trial by jury shall be as heretofore,? and the right thereof remain inviolate? Sgor. 7. The printing press shall be free* to every person who may undertake to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man ; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had, in any prosecution for the publication of papers relating to the official conduct of officers, or men in public capacity, cr to any other matter proper for public investigation or information,’ where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury; and in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Sect. 8. The people shall be secure in their pérsons, houses, papers and posses- sions, from unreasonable searches and seizures ; and no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation, subscribed to by the affiant.” Sscr. 9. In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel,® to demand the nature and cause of the accusation against him,® to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor; and in prosecutions by indictment or information, a speedy public trial, by an impartial jury of the vicinage ; he cannot be compelled to give 1 The test of competency is, whether the party believe in the existence of a God, who will punish him, if he swear falsely. 2 W. & S. 262. 26 Penn. St. 274. 2 Cow. 431. 2 This does not interfere with the summary conviction of rogues and vagabonds. 42 Penn. St. 89. And see 51 Ibid. 96; Ibid. 412. 29 Pitts. L. J. 414. 30 Ibid. 14. It is error, if it do not appear, by the record of the trial of an indictment, that the defendant was tried by twelve jurors, lawfully sworn, 38. & R. 237. A waiver of thiy right, by the consent of the defendant, in a crim- inal case, is a nullity. 1 Pitts.492. 18 N.Y. 129. The 37th section of the code of criminal proced- ure, giving the commonwealth four peremptory challenges, does not conflict with this provision. 37 Penn. St. 45. 40 Ibid. 462. 3 See 1 Binn. 424. 5 Penn. St. 204. 7 Pet. 551-2. Trial by jury is a constitutional right, which cannot be waived by implication. 6 W. 133. 31 Penn. St. 310. 18N. ¥. 129. The leg- islature has no power, either to provide that a petit jury may be composed of a less number than twelve, or that a number of the petit jury, less than twelve, may render a verdict. 23 Law. Rep. 458. 1 Moxrtana 118. Ibid. 200. 10 Phila. 496. 37 Hew, Pr. 140. But the act of 1861, which pro- vides that certain offences may, at the election of the defendant, be tried by a justice and six jurors, is not unconstitutional. 101 Penn. St. 560. A municipal corporation, being the creature of the legislature, cannot claim the constitutional right of atrial by jury. 52 Penn. St. 374, 41 Dall.325. 3 Y.520. 4 Ibid. 269. 1 Browst. 492. 5 4 Y. 267. 3 Pitts, 449. 6 The new constitution has introduced an entirely new principle into the law of libel in this state, to wit, that where tho matter complained of is proper for publication, and it is established, that it was published without negligence or malice, a criminal prosecution cannot be maintained. 11 Phila. 469. 7 Luz. L. Reg. 39, 44. And see 11 Phila. 287. There must be proof of malice or negligence, to convict of libel, where the publica~ tion relates to the official conduct of persons ins public capacity. 15 Phila, 469. And see 40 Leg. Int. 446. 7 A warrant of arrest, issued upon common rumor and report cf the party’s guilt, though it recite that there is danger of his escaping, before witnesses could be summoned, to enable the judge to issue it upon oath, is illegal; and no officer is bound to execute it. 3 Binn. 38. But an arrest for felony may be made without warrant. 6 Ibid. 316. And if a justice of the peace be obstructed in the performance of his judicial duties, he may commit the offender for trial, or hold him to bail, without oath or hearing. 2 Chest. Co. R. 557. As to the sufficiency of a search-warrant, see 10 W. N.C. 135, 8 It need not appear by the record, that the prisoner was allowed counsel. 37 Penn. St. 108. ® The 2%th section of the code of criminal pro- cedure of 31 March 1860, does not conflict with this provision. 37 Penn. St. 109. 10 In all criminal cases, the witnesses must be examined in the presence of the accused, and be subject to cross-examination. 51 Penn. St. 338. This clause applies to impeachments, which are criminal prosecutions. Porter’s Trial 100-12, But depos.tions were taken and read on the trial of Judge Hopkinson. Hopkinson’s Trial 40-3. It_doos not, however, abrogate the common-law principle, that dying declarations are admissible in evidence, in cases of homicide. 2 How. (Miss.) 656. Meigs 265. 11 Ga. 353. 8 Ohio St. 13], 7 Towa 349, CONSTITUTION OF PENNSYLVANIA. 39 evidence agains; himself,’ nor can he be deprived of his life, liberty or property, unless by the judgment of his peess, or the law of the land? Sxcr. 10. No person shall, for any indictable offence, be proceeded against criminally, by information, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger: or, by leave of the court, for oppression or misdemeanor in office.’ No person shall, for the same offence, be twice put in jeopardy of life or limb ; nor shall private property be taken or applied to public use, without authority of law, and without just com- pensation being first made or secured.® Sxcr. 11. All courts shall be open: and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law,® and right and justice administered, without sale, denial or delay. Suits may be brought against the commonwealth, in such manner, in such courts, and in such cases, as the legislature may by law direct.” Srcr. 12. No power of suspending laws shall be exercised, unless by the legis- lature, or by its authority. Szor. 13. Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted. Szor. 14. All prisoners shall be bailable by sufficient sureties, unless for capital offences,’ when the proof is evident, or presumption great;® and the privilege of the 1 See 3 Y.515. 24N. Y¥. 74. 2 A private act is not sucha law. 5 W. & S. 171. 6 Penn. St. 87. And see 1 Curt. C. C. 314. It means, judgment of law, in its regular course of administration through courts of justice. 46 Penn. St. 460. 65 Ibid. 399, 413. A law must furnish some just form or mode in which the duty of the citizen shall be determined, before he can be visited with a penalty for non-performance. 81 Penn. St. 80. 3 See 3 Dall. 490. 2 Ibid. 112. 1 Y. 206. Ibid. 870. Ibid. 419. 18. & R. 382. The act of 1843, compelling a sheriff to dismiss a deputy who ex- torts illegal fees, is constitutional. 75 Penn. St. 75. 4 This only applies to capital offences. 29 Penn. St. 323. The court, even in a capital case, may discharge a jury, before verdict, in case of abso- lute necessity; but mere inability to agree, is not such a case; and if a jury be discharged, under such circumstances, the prisoner may plead it in bar of another trial. 3 R. 498. And see 60 Penn. St. 103. 17 W. N.C. 36. A prisoner is not once in jeopardy, until a full jury is empannelled and sworn. 105 Penn. St. 1. But from that moment he is in jeopardy, within the meaning of the con- stitution. 17 W.N. C. 36. 5 See art. XVI. 38. This clause is a disabling not an enabling one. 10 W. 66. It is a limita- tion, not on the taxing power but on the right of eminent domain. 21.510. There are no other limitations to the power of the state over private property, than those that are placed upon it by the constitution. 6 W. & S. 113. The common- wealth has a constitutional right to authorize a turnpike company to lay out a road through the private ground of a citizen, without making com- pensation for the soil, 6 Binn. 509; such com- pensation having been originally made in each urchaser’s particular grant. 3 Y. 373. 100 enn. St. 362. The mere laying out of streets through private property, is not a taking, within the meaning of the constitution ; it is only when they are actually opened and applied to public use, that the owners are entitled to compensation. 2W.&8. 320. It is not necessary, that the com- pensation should be actually ascertained and paid, before the property is appropriated; it is enough, that an adequate remedy is provided, by which the owner can obtain compensation without unreasonable delay. 1 Penn. St. 309. 10 Ibid. 97. 58 Thid. 26. 8 Phila. 282. See 17 Penn. St. 524. And a Jaw limiting the time with- in which the owner’s claim for damages shall be exhibited, is not unconstitutional. 11 N. Y. 308. To authorize the taking of private property, for public use, there must be an adjudication upon the facts which render it proper. 81 Penn. St, 80; 9 Phila. 171. The legislature may constitu- tionally require the owners of property benefited by a public improvement, to pay the damages sus- tained by those whose property is taken, in pro- portion to the benefits received by each of them. 3 W. 296. 7 Penn. St. 175. 8 Wend. 85. 4 N. Y.419. But if the whole benefit bea public one, and the owners do not derive any special benefit from the improvement, such act is unconstitutional. 69 Penn. St. 352. 89 Ibid. 265. 93 Ibid. 15. And the government cannot take the property of one citizen, for the mere purpose of transferring it to another, even for a full compensation, where the public is not interested in such transfer; such an arbitrary exercise of power is an infringement of the spirit of the constitution, not being within the powers delegated by the people to the legislature. 1 Penn. St. 309. 2 Ibid. 24. 6 Ibid. 91. 13 Ibid. 217. 16 Ibid. 264. 31 Ibid. 90. 55 Ibid. 16. 67 Ibid. 479. 6 N. Y. 358. The legislature may, indeed, authorize a trustee of the legal estate in land to convert it into money, for the purpose of distributing the proceeds among the parties entitled. 2 Penn. St. 277. Ibid. 393. 17 Ibid. 434, 21 Ibid. 201. But they cannot authorize the sale of the property of parties sui juris, and seised of a vested estate, against their consent. 16 Penn. St. 256. 31 Ibid. 87. And see 68 Ibid. 248. 91 Ibid. 30. The right of eminent domain extends to corporate franchises. 91 Penn. St. 216. 102 Ibid. 123. 6 This requires that the law relating to the transaction in controversy, at the time when it is complete, shall be an inherent element of the case, and shall guide the decision; and that the case shall not be altered, in its substance, by any sub- sequent law. 33 Penn. St. 495. 6 W. GS. 116, 117. 8 A prisoner charged with homicide, may be admitted to bail, even after indictment found, where the evidence shows that the offence is not a capital one. 2 Pitts. 362. 2 Ash. 227. ® This clause has reference to the guilt of the prisoner, not to the nature or degree of the offence 2 Pitts. 362. 40 CONSTITUTION OF PENNSYLVANIA. writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it. a : 2 Sxor. 15. No commission of oyer and terminer or jail delivery shall be issued. Sxcr. 16. The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison, after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law. Sucr. 17. No ex post facto law,! nor any law impairing the obligation of contracts? or making irrecoverable any grant of special privileges or immunities shall be assed. Sscr. 18. No person shall be attainted of treason or felony by the legislature. Secr. 19. No attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the commonwealth. The estate of such persons as shall destroy their own lives shall descend or vest as in cases of natural death ; and if any person shall be killed by casualty, there shall be no forfeiture by reason thereof. Sxcr. 20. The citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the powers of govern- ment, for redress of grievances, or other proper purposes, by petition, address or remonstrance. Sror. 21. The right of the citizens to bear arms in defence of themselves and the state, shall not be questioned.’ Sror. 22. No standing army shall, in time of peace, be kept up, without the consent of the legislature ; and the military shall, in all cases, and at all times, be in strict subordination to the civil power. : Sxot. 23. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law. Secor. 24. The legislature shall not grant any title of nobility or hereditary dis- tinction ; nor create any office, the appointment to which shall be fora longer term than during good behavior. Srcr. 25. Emigration from the state shall not be prohibited. Szcr. 26. To guard against transgressions of the high powers which we have delegated, WE DECLARE, that everything in this article is excepted out of the gen- eral powers of government, and shall forever remain inviolate. ARTICLE II. OF THE LEGISLATURE. Secr. 1. The legislative power of this commonwealth shall be vested in a gen- eral assembly,® which shall consist of a senate and a house of representatives. 1 Any law changing the punishment of offences committed before its passage, is ex post fucto and void, under the constitution, unless the change consist in the remission of some separable part of the punishment before prescribed, or be refer- rible to prison discipline or penal administration, as its primary object. 22 N. Y. 95. An act granting a new trial is unconstitutional. 15 Penn. St. 18. 16 Ibid. 266-7. 43 Ibid. 512. 2 Pitts. 360. But an act extending the period of limita- tion where the existing limitation has not run against the prosecution of a crime, is not an ex post facto law. 96 Penn. St. 506. 2 Seo 4d W. & S. 218. 2 Whart. 396. 8W.& 8. 49. 41 Penn. St. 441. 4 Phila. 309. An act of assombly cannot impair a contract made, after it has passed both houses of the general assembly, but before its approval by the governor. 33 Penn. St. 202, The legislature, provided it do not vio- late the constitutional prohibitions, may pass retrospective laws. 7 W.300. 56 Penn. St. 57. See 3! Ibid. 289. Ibid. 301. 56 Ibid. 46. But a contract which has become void, by force of its inherent conditions, cannot be reinstated by act of assembly. 39 Penn. St. 435. See 51 Ibid. 9. Whenever a power to repeal, alter or amend_a_ 60, charter, is reserved in it, its exercise does not impair the obligation of the vontract. 55 Penn. St. 452. See 8 Wall. 430. The charter of a mu- nicipal corporation is not a contract, within the prohibition of the constitution. 59 Penn. St. 174. 5 An act prohibiting the carrying of concealed Weapons, is not a violation of this section. 77 Penn. St. 470. * See 26 Penn. St. 33. 5 In 72 Penn. St. 491, it was decided by the supreme court, that an act submitting the question of granting tavern-licenses to the electors of a ward, was not in conflict with the constitution. In 6 Penn. St. 507, the former supreme court arrived at exactly an opposite conclusion. Each of these decisions was made by abare majority of the court, so that in point of number, the judges on either side of the question are evenly balanced. Under these circumstances, the question can hardly be deemed settled in Pennsylvania. In 17 N. Y. 281, it was ruled by the court of appeals of New York, that a judgment given by a divided court, though it settles the case between the par- ties, was not obligatory as a precedent, 8 See 11 Penn, St. 494. 15 Ibid. 20. 16 Pet. CONSTITUTION OF PENNSYLVANIA. 41 Sxor. 2. Members of the general assembly shall be chosen at the general election, every second year.' Their term of service shall begin on the first day of Decem- ber next after their election. Whenever a vacancy shall occur in either house, the presiding officer thereof shall issue a writ of election, to fill such vacancy for the remainder of the term. Sect. 3. Senators shall be elected for the term of four years, and representatives for the term of two years. Sect. 4. The general assembly shall meet at twelve o’clock, noon, on the first Tuesday of January, every second year, and at other times when convened by the governor, but shall hold no adjourned annual session after the year 1878. In case of a vacancy in the office of United States senator from this commonwealth, iz a recess between sessions, the governor shall convene the two houses, by proclama- tion, un notice, not exceeding sixty days, to fill the same. Secr. 5. Senators shall be at least twenty-five years of age, and representatives twenty-one years of age. They shall have been citizens and inhabitants of the state four years, and inhabitants of their respective districts, one year next before their election (unless absent on the public business of the United States or of this state), and shall reside in their respective districts, during their terms of service. Sxot. 6. No senator or representative shall, during the time for which he shall have been elected, be appointed to any civil office under this commonwealth ; and no member of congress, or other person holding any office (except of attorney-at- law, or in the militia), under the United States or this commonwealth, shall be a member of either house, during his continuance in office.? Sect. 7. No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime,’ shall be eligible to the general assembly, or capable of holding any office of trust or profit in this commonwealth. Szct. 8. The members of the general assembly shall receive such salary and mileage for regular and special sessions, as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either house shall, during the term for which he may have been elected, receive any increase of salary or mileage, under any law passed during such term.‘ Sct. 9. The senate shall, at the beginning and close of each regular session, and at such other times as may be necessary, elect one of its members president pro tempore, who shall perform the duties of the lieutenant-governor, in any case of absence or disability of that officer, and whenever the said office of lieutenant- overnor shall be vacant. The house of representatives shall elect one of its mem- ers as speaker. Each house shall choose its other officers, and shall judge of the election and qualifications of its members. Secr. 10. A majority of each house shall constitute a quorum: but a smaller number may adjourn from day to day, and compel the attendance of absent mem- bers. Srcr. 11. Each house shall have power to determine the rules of its proceed- ings, and punish its members, or other persons, for contempt or disorderly behavior in its presence,® to enforce obedience to its process, to protect its members against violence, or offers of bribes or private solicitation, and, with the concurrence of two-thirds, to expel a member, but not a second time, for the same cause ; and shall have all other powers necessary for the legislature of a free state.’ A mem- ber expelled for corruption shall not thereafter be eligible to either house; and punishment for contempt or disorderly behavior, shall not bar an indictment for the same offence. 1 If a majority of the votes have been cast is swornin. 18 Penn. St. 519. for a disqualified person, the one who received the next highest. number is not to be returned as elected. 56 Penn. St. 270. 1 Chand. 112. 14 Wis. 497. 13 Cal. 145. Contr@, 14 Ind. 93. 15 Ind. 327. 3 Chicago Leg. News 117. And see Bright. Blect. Cas. 150-1. 50 N. Y. 451. 3 Jf a member, at the time of his election, hold @ disqualifying office, it is sufficient, that he -qualify himself, by a resignation of it, before he 3 See 3 McCreary 266. 4 See 99 Penn. St. 535. 5 The right of each house to judge of the eleo- tion and qualification of its own numbers, is not affected by the provisions of art. VIII. 317. 17 W.N.C. 41. 6 See note to 6 Wheat. 204, 7 See 21 Penn. “&. 147. 42 CONSTITUTION OF PENNSYLVANIA. a . Sxcr. 12. Each house shall keep a journal of its proceedings, and from time to time, publish the same, except such parts as require secrecy ; and the yeas and nays of the members on any question shall, at the desire of any two of them, be entered on the journal. Suct. 13. The sessions of each house, and of committees of the whole, shall be open, unless when the business is such as ought to be kept secret. Sect. 14. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. Szor. 15. The members of the general assembly shall, in all cases, except trea- son, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest, during their attendance at the sessions of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.? Srot. 16. The state shall be divided into fifty senatorial districts of compact and contiguous territory, as nearly equal in population as may be; and each district shall be entitled to elect one senator. Hach county containing one or more ratios of population, shall be entitled to one senator for each ratio, and to an additional senator for a surplus of population exceeding three-fifths of a ratio, but no county shall form a separate district, unless it shall contain four-fifths of a ratio, except where the adjoining counties are each entitled to one or more senators, when such county may be assigned a senator on less than three-fifths, and exceeding one-half of a ratio; and no county shall be divided, unless entitled to two or more senators, No city or county shall be entitled to separate representation, exceeding one-sixth of the whole number of senators. No ward, borough or township shall be divided in the formation of a district. The senatorial ratio shall be ascertained by divid- ing the whole population of the state by the number fifty. Sxcr. 17. The members of the house of representatives shall be apportioned among the several counties, on a ratio obtained by dividing the population of the state, as ascertained by the most recent United States census, by two hundred. Every county containing less than five ratios shall have one representative for every full ratio, and an additional representative, when the surplus exceeds half a ratio ; but each county shall have at least one representative. Every county containing five ratios, or more, shall have one representative for every full ratio. Every city containing a population equal to a ratio, shall elect separately its proportion of the representatives allotted to the county in which it is located. Every city enti- tled to more than four representatives, and every county having over one hundred thousand inhabitants, shall be divided into districts of compact and contiguous ter- ritory ; each district to elect its proportion of representatives, according to its popu- lation ; but no district shall elect more than four representatives. Secor. 18. The general assembly, at its first session, after the adoption of this constitution, and immediately after each United States decennial census, shall apportion the state into senatorial and representative districts, agreeably to the pro- visions of the.two next preceding sections. ARTICLE III. OF LEGISLATION. Szor. 1. No law shall be passed, except by bill; and no bill shall be so altered or amended, on its passage through either house, as to change its original purpose. Seor. 2. No bill shall be considered, unless referred to a committee, returned therefrom, and printed for the use of the members. : Szor. 3. No bill, except general appropriation bills, shall be passed, containing more than one subject, which shall be clearly expressed in its title 1 An adjournment of the house for more than N. C. 498. 2 Chest. Co. R, 4: it i three days, without the concurrence of the senate, necessary that the title should i. Renee does not, ipso fucto, work # dissolution of the gen- of its contents. 58 Penn. St. 226. 61 Thid 425. oral assembly. 9 Phila. 495. It is only necessary that the title should fairly ; See 4 W. N.C. 540. 2; give notice of tho subject of the act, so as to rea If the title of an act do not clearly indicate sonably lead to an inquiry into its body. 77 Penn its subject-matter, it is unconstitutional. 10 W. St. 77, Ibid. 429, 81° Ibid. 433 "te an act, ‘i . . CONSTITUTION OF PENNSYLVANIA, 43 Sect. 4. Every bill shall be read at length, on three different days, in each house; all amendments made thereto shall be printed for the use of the members, before the final vote is taken on the bill; and no bill shall become a law, unless, on its final passage, the vote be taken by yeas and nays, the names of the persons voting for and against the same beesentered on the journal, and a majority of the members elected to each house be recorded theréon as voting in its favor? Sgcr. 5. No amendment to bills by one house shall be concurred in by the other, except by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting for and against recorded upon the journal thereof’; and reports of committees of conference shall be adopted in either house only by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting recorded upon the journals. Sect. 6. No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. Srct. 7. The general assembly shall not pass any local or special law author- izing the creation, extension or impairing of liens ; Regulating the affairs of counties, cities, townships, wards, boroughs or school districts ; Changing the names of persons or places; Changing the venue in civil or criminal cases ; Authorizing the laying out, opening, altering or maintaining roads, highways, streets or alleys ; Relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other state ; Vacating roads, town-plats, streets or alleys; Relating to cemeteries, graveyards, or public grounds, not of the state ; Authorizing the adoption or legitimation of children ; Locating or changing county seats ; Erecting new counties, or changing county lines ; Incorporating cities, towns or villages, or changing their charters ; For the opening and conducting of elections, or fixing or changing the place of voting ; Granting divorces ; Erecting new townships or boroughs ; Changing township lines, borough limits or school districts ; Creating offices, or prescribing the powers and duties of officers, in counties cities, boroughs, townships, election or school districts ; Changing the law of descent or succession ; Regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding or inquiry before courts, aldermen, justices of the peace, sheriffs, commissioners, arbitrators, auditors, masters in chancery or other tribunals ; or providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate ; Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, magistrates or constables ; : Regulating the management of public schools, the building or repairing of schonl- houses, and the raising of money for such purposes ; Fixing the rate of interest ; Affecting the estates of minors or persons under disability, except after due notice so all parties in interest, to be recited in the special enactment ; entitled a supplement to a former one, the date and title of which are given, be germane to the original statute, it does not violate the constitu- tional provision. 8 W. N.C. 70. 13 Fed. Rep. 429. 88 Penn. St. 42. If the title of an act be simple, it is only those provisions that are not covered by it, that are void. 77 Penn. St. 77. 80 Ibid. 118. 95 Ibid. 437. If, however, the title of an act tend to mislead as to the power granted, it is unconstitutional; such title stands on a dif- ferent footing from one general in its terms. 32 Sm. 91. The title of an act is now deemed a part of it. 66 Penn. St. 164. 70 Ibid. 311. 6 Phila, 492. 1 An alleged disregard of the forms of legis- lation required by the constitution on the passage of a law, is not the subject of judicial inquiry. 85 Penn. St. 401. See 8 N. Y. 317. 2 See 14 Hun 438. 44 CONSTITUTION OF PENNSYLVANIA. Remitting fines, penalties and forfeitures, or refunding moneys legally paid into the treasury ! Exempting property from taxation ; Regulating labor, trade, mining or manufacturing ; : Creating corporations, or amending, renewing or extending the charters thereof; Granting to any corporation, association or individual, any special or exclusive privilege or immunity, or to any corporation, association or individual, the right to lay down a railroad track ; : Nor shall the general assembly indirectly enact such special or local law, by the partial repeal of a general law; but laws repealing local or special acts may be assed ; Nor shall any law be passed granting powers or privileges, in any case where the granting of such powers and privileges shall have been provided for by general law, nor where the courts have jurisdiction to grant the same, or give the relief asked for.) Sxcr. 8. No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published, in the locality where the matter or the thing to be affected may be situated, which notice shall be at least thirty days prior to the introduction into the general assembly of such bill, and in the manner to be provided by law; the evidence of such notice having been published, shall be exhibited in the general assembly, before such act shall be passed. Sror. 9. The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the general assembly, after their titles have been publicly read, immediately before signing; and the fact of signing shall be entered on the journal. Srcr. 10. The general assembly shall prescribe by law the number, duties and compensation of the officers and employees of each house; and no payment shall be made from the state treasury, or be in any way authorized, to any person, except to an acting officer or employee elected or appointed in pursuance of law. Szor. 11. No bill shall be passed giving any extra compensation to any public officer, servant, employee, agent or contractor, after services shall have been ren- dered or contract made, nor providing for the payment of any claim against the commonwealth, without previous authority of law. Sror. 12. All stationery, printing, paper and fuel used in the legislative and other departments of government, shall be furnished, and the printing, binding and distributing of the Jaws, journals, department reports, and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the general assembly and its committees, shall be performed under con- tract, to be given to the lowest responsible bidder below such maximum price, and under such regulations, as shall be prescribed by law; no member or officer of any department of the government shall be, in any way, interested in such contracts ; and all such contracts shall be subject to the approval of the governor, auditor- general and state treasurer. Secr. 13. No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.? Sect. 14. All bills for raising revenue shall originate in the house of represen- tatives, but the senate may propose amendments as in other bills. _ Sor. 15. The general appropriation bill shall embrace nothing but appropria- tions for the ordinary expenses of the executive, legislative and judicial depart- ments of the commonwealth, interest on the public debt, and for public schools ; all other appropriations shall be made by separate bills, each embracing but one subject. _ Secor. 16. No money shall be paid out of the treasury, except upon appropria- al o by law, and on warrant drawn by the proper officer in pursuance thereof. Szor. 17. No appropriation shall be made to any charitable or educational insti- _} This section is wholly prospective in its pro- the prohibition, see 91 Penn. St. 125; 88 Ibid. hibition, and docs not repeal existing laws. 85 258; 106 Ibid. 377; 16 W. N.C. 497; 17 Toid. 353; Penn. St. 357. 90 Ibid. 309. It does not prevent 33 Pitts. L.J.191; 32 Am. L. Reg. 778 343 N. Y. the classification of municipal corporations with 10; 68 [bid. 381; 70 Ibid. 327 : = respect to taxation. 77 Penn. St. 338. 85 Ibid. 2 105 Penn. St. 300. 401. As to what is a local or special act, within ' CONSTITUTION OF PENNSYLVANIA. 45 tution, not under the absolute control of the commonwealth, other than normal schools, established by law, for the professional training of teachers fer the public schools of the state, except hy a vote of two-thirds of all the members elected to each house, Szcr. 18. No appropriations, except for pensions or gratuities for military ser- vices, shall be made for charitable, educational or benevolent purposes, to any per- son or community, nor to any denominational or sectarian institution, corporation or association. Sect. 19. The general assembly may make appropriations of money to institu- tions wherein the widows of soldiers are supported or assisted, or the orphans of soldiers are maintained or educated ; but such appropriation shall be applied exclu- sively to the support of such widows and orphans. : Szcr. 20. The general assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy’ taxes, or perform any municipal function whatever.) Szct. 21. No act of the general assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property ;? and, in case of death from such injuries, the right of action shall survive, and the general assembly shall prescribe for whose benefit such actions shall be prosecuted. No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes, different from those fixed by general laws regulating actions against natural persons; and such acts now existing are avoided.’ Srcr. 22. No act of the general assembly shall authorize the investment of trust funds by executors, administrators, guardians or other trustees, in the bonds or stock of any private corporation; and such acts now existing are avoided, saving investments heretofore made. Srcr. 23. The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law.* Szct. 24. No obligation or liability of any railroad or other corporation, held or owned by the commonwealth, shall ever be exchanged. transferred, remitted, postponed, or in any way diminished, by the general assembly; nor shall such lia bility or obligation be released, except by payment thereof into the state treasury. Srcr. 25. When the general assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the pro- clamation of the governor calling such session. Szcr. 26. Every order, resolution or’ vote to which the concurrence of both houses may be necessary, except on the question of adjournment, shall be pre- sented to the governor, and before it shall take effect, be approved by him, or being disapproved, shall be repassed by two-thirds of both houses, according to the rules and limitations prescribed in case of a bill. Srcr. 27. No state office shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity; but any county or municipality may appoint such officers, when authorized by law.® Sxcr. 28. No law changing the location of the capital of the state shall be valid, until the same shall have been submitted to the qualified electors of the commonwealth, at a general election, and ratified and approved by them. Srcr. 29. A member of the general assembly who shall solicit, demand or receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation, or person, any money, office, appointment, employment, testimonial, reward, thing of value or. enjoyment, or of personal advantage, or promise thereof, for his vote or official influence, or for withholding the same, or with an understanding, expressed or implied, that his vote or official action shall be, in any way, influenced thereby ; or who shall solicit or demand any such money or other advantage, matter or thing aforesaid, for another, as the consideration of his vote or official influence, or for withholding the same, or shall give or withhold his vote or influence, in consideration of the payment or promise of such money, 1 21 Pitts. L. J. 185. 3 25 Pitts. L. J. 184. See 17 W. N.C. 429, 2 This abrogated such limitations contained in * See 83 Penn. St. 254. exisiing laws. 103 Penn. St. 425. See Ibid. 121. 5 10 Phila. 330. See 17 N.Y. 141. 46 CONSTITUTION OF PENNSYLVANIA. advantage, matter or thing to another ; shall be held guilty of bribery, within the meaning of this constitution, and shall incur the disabilities provided thereby for said offence, and such additional punishment as is or shall be provided by law.? Sgor. 30. Any person who shall, directly or indirectly, offer, give or promise, any money or thing of value, testimonial, privilege or personal advantage, to any executive or judicial officer, or member of the general assembly, to influence him in the performance of any of his public or official duties, shall be guilty of bribery, and be punished in such manner as shall be provided by law. Sect. 31. The offence of corrupt solicitation of members of the general assem- bly, or of public officers of the state, or of any municipal division thereof, and avy occupation or practice or solicitation of such members or officers, to influence their official action, shall be defined by law, and shall be punished by fine and imprisonment.? . on Sxcr. 32. Any person may be compelled to testify, in any lawful investigation or judicial proceeding, against any person who may be charged with having com- mitted the offence of bribery or corrupt solicitation, or practices of solicitation, and shall not be permitted to withhold his testimony, upon the ground that it may criminate himself, or subject him to public infamy; but such testimony shall not afterwards be used against him, in any judicial proceeding, except for perjury in giving such testimony; and any person convicted of either of the offences afore- said shall, as part of the punishment therefor, be disqualified from holding any office or position of honor, trust or profit in this commonwealth, Srcr. 33. A member who has a personal or private interest in any measure or pill proposed or pending before the general assembly, shall disclose the fact to the house of which he is a member, and shall not vote thereon. ARTICLE IV. OF THE EXECUTIVE. Sxor. 1. The executive department of this commonwealth shall consist of a gov- ernor, lieutenant-governor, secretary of the commonwealth, attorney-general, audi- tor-general, state treasurer, secretary of internal affairs, and a superintendent of public instruction. Sot. 2. The supreme executive power shall be vested in the governor, who shall take care that the laws be faithfully executed; he shall be chosen on the day of the general election, by the qualified electors of the commonwealth, at the places where they shall vote for representatives. The returns of every election for governor shall be sealed up and transmitted to the seat of government, directed to the presi- dent of the senate, who shall open and publish them, in the presence of the members of both houses of the general assembly. The person having the highest number of votes shall be governor, but if ‘two or more be equal and highest in votes, one of them shall be chosen governor, by the joint vote of the members of both houses. Contested elections shall be determined by a committee, to be selected from both houses of the general assembly, and formed and regulated in such manner as shall be directed by law. Szor. 8. The governor shall hold his office during four years from the third Tuesday of January next ensuing his election, and shall not be eligible to the office for the next succeeding term. Sror. 4. A lieutenant-governor shall be chosen at the same time, in the same manner, for the same term, and subject to the same provisions as the governor ; he shall be president of the senate, but shall have no vote, unless they be equally divided. Sror. 5. No person shall be eligible to the office of governor or lieutenant-gov- ernor, except a citizen of the United States, who shall have attained the age of thirty years, and have been seven years next preceding his election an inhabitant of the state, unless he shall have been absent on the public business of the United States, or of this state. : Sot. 6. No member of congress, or person holding any office under the United States, or this state, shall exercise the office of governor or lieutenant-governor. 1 See 91 Penn. St. 493. 11 Luz. L. Reg. 25. 2 2 Pears. 534, CONSTITUTION OF PENNSYLVANIA. 47 Szor. 7. The governor shall be commander-in-chief of the army and navy of the commonwealth, and of the militia, except when they shall be called into the actual service of the United States, Szcr. 8. He shall nominate, and, by and with the advice and consent of two- thirds of all the members of the senate, appoint a secretary of the commonwealth and an attorney-general, during pleasure, a superintendent of public instruction, for four years, and such other officers of the commonwealth as he is or may be author- ized, by the constitution or law, to appoint ; he shall have power to fill all vacancies that may happen in offices to which he may appoint, during the recess of the senate, by granting commissions which shall expire at the end of their next session; he shall have power to fill any vacancy that may happen, during the recess of the senate, in the office of auditor-general, state treasurer, secretary of internal affairs, or superintendent of public instruction, in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the senate, the governor shall nominate to the senate, before their final adjournment, a proper person to fill said vacancy; but in any such case of vacancy in an elective office, a person shall be chosen to said office, at the next gen- eral election,! unless the vacancy shall happen within three calendar months imme- diately preceding such election, in which case, the election for said office shall be held at the second succeeding general election. In acting on executive nominations, the senate shall sit with open doors, and, in confirming or rejecting the nominations of the governor, the vote shall be taken by yeas and nays, and shall be entered on the journal. Sect. 9. He shall have power to remit fines and forfeitures,? to grant reprieves, commutations of sentence and pardons,* except in cases of impeachment; but no pardon shall be granted, nor sentence commuted, except upon the recommendation in writing, of the lieutenant-governor, secretary of the commonwealth, attorney-gen- eral and secretary of internal affairs, or any three of them, after full hearing, upon due public notice, and in open session ; and such recommendation, with the reasons therefor, at length, shall be recorded and filed in the office of the secretary of the commonwealth. Szct. 10. He may require information in writing from the officers of the exe- cutive department, upon any subject relating to the duties of their respective offices. Srcr.'11. He shall, from time to time, give to the general assembly information of the state of the commonwealth, and recommend to their consideration such measures as he may judge expedient. Sxor. 12. He may, on extraordinary occasions, convene the general assembly, and in case of disagreement between the two houses, with respect to the time of adjournment, adjourn them to such time as he shall think proper, not exceeding four months. He shall have power to convene the senate in extraordinary session, by proclamation, for the transaction of executive business. Szor. 13. In case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the governor, the powers, duties and emoluments of the office, for the remainder of the term, or until the disability be removed, shall devolve upon the lieutenant-governor. Szcr. 14. In case of a vacancy in the office of lieutenant-governor, or when the lieutenant-governor shall be impeached by the house of representatives, or shall be unable to exercise the duties of his office, the powers, duties and emoluments: thereof, for the remainder of the term, or until the disability be removed, shall Penn. St. 297. 2 Phila. 256. But not of the costs, to the payment of which a prisoner may have been sentenced. 2 Whart.440. 46 Penn. St. 446. But see 43 Ibid. 53. A pardon must be 1 This does not apply to offices that are to be filled at the February election. 101 Penn. St. 375. £ The fines and penalties which he may remit, are such only, as are now, or were originally, pay- able to the state. 3 Penn. St. 126. He may remit a forfeited recognisance, after judgment for the use of the county. 9 W. 142. 8 He may pardon, as well before trial, as after. 7 W. 155. 45 Penn. St. 372. 46 [bid. 357. So, he may grant a conditional pardon. 8 W. & S. 197. A pardon, although after sentence, is a release of all fines or imprisonment for the offence. 28 proved by the production of the warrant itself, or its loss must be accounted for. 6 W. 338. And see 1 Gr. 329. A pardon obtained hy fraud may be revoked, before actual delivery. 44 Penn. St. 210. 3 Ben. 307. And see 43 Penn St. 57-9. 9 Phila. 586. Without words of restitution, a par- ° don does not restore a forfeited estate. 3 Gr. 158. Formal irregularities in a pardon will not annul its effect. 85 Penn. St. 139. 46 CONSTITUTION OF PENNSYLYANIA. devolve upon the president pro tempore of the senate ; and the president pro tempore of the senate shall, in like manner, become governor, if a vacancy or disability shall occur in the office of governor; his seat as senator shall become vacant, whenever he shall become governor, and shall be filled by election, as any other vacancy in the senate. Sxcr. 15. Every bill which shall have passed both houses, shall be presented to the governor; if he approve, he shall sign it,! but if he shall not approve, he shall return it, with his objections, to the house in which it shall have originated, which house shall enter the objections at large upon their journal, and proceed to recon- sider it. If, after such reconsideration,? two-thirds of all the members elected to that house, shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which likewise it shall be reconsidered; and if approved by two- thirds of all the members elected to that house, it shall be a law; but in such cases, the votes of both houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered on the journals of each house respectively. If any bill shall not be returned by the governor, within ten days after it shall have been presented to him, the same shall be a law, in like manner as if’ he had signed it, unless the general assembly, by their adjournment, prevent its return ; in which case, it shall be a law, unless he shall file the same, with his objections, in the office of the secretary of the commonwealth, and give notice thereof, by public proclamation, within thirty days after such adjournment. Srct. 16. The governor shall have power to disapprove of any item or items of any bill making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appro- priation disapproved shall be void, unless repassed according to the rules and lim- itations prescribed for the passage of other bills over the executive veto. Srcr. 17. The chief justice of the supreme court shall preside upon the trial of any contested election of governor or lieutenant-governor, and shall decide ques- tions regarding the admissibility of evidence, and shall, upon request of the com- mittee, pronounce his opinion upon other questions of law involved in the trial. The governor and lieutenant-governor shall exercise the duties of their respective offices, until their successors shall be duly qualified. Szor. 18. The secretary of the commonwealth shall keep a record of all official acts and proceedings of the governor, and, when required, lay the same, with all papers, minutes and vouchers relating thereto, before either branch of the general assembly ; and perform such other duties as may be enjoined upon him by law. Sgcr. 19. The secretary of internal affairs shall exercise all the powers, and per- form all the duties of the surveyor-general, subject to such changes as shall be made by law. His department shall embrace a bureau of industrial statistics ; and he shall discharge such duties relating to corporations, to the charitable institutions, agricultural, manufacturing, mining, mineral, timber and other material or business interests of the state, as may be prescribed by law. He shall annually, and at such other times as may be required by law, make report to the general assembly. Scr. 20. The superintendent of public instruction shall exercise all the powers and perform all the duties of the superinter dent of common schools, subject to such changes as shall be made by law. Szcr. 21. The term of the secretary of internal affairs shall be for four years ; of the auditor-general, three years; and of the state treasurer, two years. These officers shall be chosen by the qualified electors of the state, at general elections. No person elected to the office of auditor-general or state treasurer shall be capable of holding the same office for two consecutive terms. Srcr. 22. The present great seal of Pennsylvania shall be the seal of the state. All commissions shall be in the name and by authority of the commonwealth of Pennsylvania, and be sealed with the state seal, and signed by the governor. 1 An act of assembly is passed, only when it has resolution, to recall a bill, after it has been sent gone through all the forms made necessary by the constitution, to give it force and validity as a binding rule of conduct for the citizen. 33 Penn, St. 202. The governor may sign a bill, after the adjournment of the legislature. 21 N. Y¥. 517. One branch of the legislature has no power, by to the governor for approval, 33 N. Y. 269. _? After a vote on the question of reconsidera- tion, no further action can be had on the bill: the vote is a final one, and a motion to reconsider it is not in order. 4 Brewst. 133; 8 Phila, 117. CONSTITUTION OF PENNSYLVANIA. 49 ARTICLE V. OF THE JUDICIARY. Sxor. 1. The judicial power of this commonwealth? shall be vested in a supreme court, in courts of common pleas, courts of oyer and terminer and general jaii del.very, courts of quarter sessions of the peace, orphans’ courts, magistrates’ courts, and in such other courts as the general assembly may, from time to time, establish.? Sxcr. 2. The supreme court shall consist of seven judges, who shall be elected by the qualified electors of the state at large. They shall hold their offices for the term of twenty-one years, if they so long behave themselves well, but shall not be again eligible. The judge whose commission shall first expire, shall be chief justice, and thereafter, each judge whose commission shall first expire, shall, in turn, be chief justice. Sgor. 3. The jurisdiction of the supreme court shall extend over the state,’ and the judges thereof’ shall, by virtue of their offices, be justices of oyer and termi- ner and general jail delivery in the several counties ;* they shall have original jurisdiction in cases of injunction, where a corporation is a party defendant, of habeas corpus, of mandamus to courts of inferior jurisdiction, and of guo warranto as to all officers of the commonwealth whose jurisdiction extends over the state, but shall not exercise any other original jurisdiction ; they shall have appellate jurisdic- tion, by appeal, certtorar? or writ of error, in all cases, as is now or may hereafter be provided by law. Sect. 4. Until otherwise directed by law, the courts of common pleas shall con- tinue as at present established, except as herein changed ;* not more than four counties shall, at any time, be included in one judicial district organized for said courts. Szor. 5. Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law ; and the general assembly shall provide for additional judges, as the business of the said district may require.’ Counties containing a population less than is sufficient to constitute separate districts, shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the general assembly may provide. The office of associate judge, not learned in the law, is abolished, in counties forming separate districts: but the several associate judges in office when this constitution shall be adopted, shall serve for their unexpired terms? Sxot. 6. In the counties of Philadelphia and Allegheny, all the jurisdiction and powers now vested in the district courts and courts of common pleas, subject to such changes as may be made by this constitution, or by law, shall be, in Philadel- phia, vested in four, and in Allegheny, in two, distinct and separate courts of equal 1 The legislature has no judicial power, and therefore, cannot grant a new trial. 15 Penn. St. 18. 16 ibid. 267. Or, a review of a decree of the orphans’ court. 43 Ibid. 512. 2 Pitts. 360. And see ll Penn, St. 494, Nor can they bind the courts by a declaratory law. 16 N. ¥. 424. The legis- lature cannot abolish any of the courts mentioned in this article. 58 Penn. St. 226. ‘ ; See7 W. & S. 68. 8 Ibid. 382. 2 Penn. St. 42. 3 The division of the state into districts, does not affect the jurisdiction. 23 Penn. St. 355. The constitution invests the supreme court with jurisdiction co-extensive with the state, and the legislature has no power to limit it, nor to prohibit the court from issuing its process, at any time, to all parts of the state, The division of the state into districts is merely for the convenient trans- action of business. 37 Penn. St. 237. * Hach of the judges of the supreme court has power to hold a court of oyer and terminer, in any county of the state. 33 Penn. St. 80. And the court may remove an indictment, by certiorari, before trial. 17 W. N.C. 53. This includes municipal corporations. 77 Penn. St. 338. The supreme court will not enter- tain original jurisdiction of a bill against a cor- poration, when the prayer for an injunction is merely subsidiary, and not the main object of the suit. 382 Leg. Int. 448. 1 W. N.C. 611. Nor unless special ground is laid. 2 W. N. OC. 241. And see 11 Phila. 602. 6 2 Penn. St. 244. 7 The Jegislature may create an additional law judge in a district composed of several counties. 86 Penn. St. 54. If the legislature attach a | county containing less than 40,000 inhabitants, to one containing a greater number, the inhabitants of the former have a right to vote at the elec- tion of judges for the new judicial district. 16 W. N. C. 481. The case of Commonwealth v. Dumbauld, 97 Penn. St. 293, was decided by a bare majority of the judges, and is only authority for the single point in issue, that under the then existing legislation, the county of Fay- ette was not entitled to elect associate judges. This section does not execute itself. Ibid. 8 They sit in all the courts, as heretofore, 3 Luz. L. Reg. 7, including the oyer and terminer 75 Penn. St. 424. 50 and co-ordinate jurisdiction, composed of three judges each; the said courts in Philadelphia shall be designated respectively as the court of common pleas number one, number two, number three, and number four, and in Allegheny, as the court of common pleas uuwber one and number two: but the number of said courts may be by law increased, from time to time, and shall be, in like manner, designated by guccessive numbers ; the number of judges in any of said courts, or in any county where the establishment of an additional court may be authorized by law, may be increased from time to time ; and whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court as aforesaid, which shall be numbered as aforesaid. In Philadelphia, all suits shall be instituted in the said courts of common pleas, without designating the number of said court, and the several courts shall distribute and apportion the business among them, in such manner as shall be provided by rules of court; and each court, to which any euit shall be thus assigned, shall have exclusive jurisdiction thereof, subject to change of venue, as shall be provided by law. In Allegheny, each court shall have exclusive jurisdiction of all proceedings at law and in equity, commenced therein, subject to change of venue, as may be provided by law. Szcr. 7. For Philadelphia, there shall be one prothonotary’s office, and one pro- thonotary for all said courts, to be appointed by the judges of said courts, and to hold office for three years, subject to removal by a majority of the said judges; the said prothonotary shall appoint such assistants as may be necessary and authorized by said courts; and he and his assistants shall receive fixed salaries, to be deter- mined by law and paid by said county ; all fees collected in said office, except such as may be by law due to the commonwealth, shall be paid by the prothonotary into the county treasury. Each court shall have its separate dockets, except the judg- ment-docket, which shall contain the judgments and liens of all the said courts, as is or may be directed by law. Sxcr. 8. The said courts in the counties of Philadelphia and Allegheny, respect- ively, shall, from time to time, in turn, detail one or more of their judges to hold the courts of oyer and terminer, and the courts of quarter sessions of the peace of said counties, in such manner as may be directed by law.) Sxcr. 9. Judges of the courts of common pleas learned in the law shall be judges of the courts of oyer and terminer, quarter sessions of the peace and general jail delivery, and of the orphans’ court, and within their respective districts, shall be justices of the peace as to criminal matters.? Sect. 10. The judges of the courts of common pleas, within their respective counties, shall have power to issue writs of certiorari to justices of the peace and other inferior courts not of record, and to cause their proceedings to be brought before them, and right and justice to be done.® Secor. 11. Except as otherwise provided in this constitution, justices of the peace or aldermen shall be elected in the several wards, districts, boroughs and townships, at the time of the election of constables, by the qualified electors thereof, in such manner as shall be directed by law, and shall be commissioned by the governor for a term of five years. No township, ward, district or borough shall elect more than two justices of the peace or aldermen, without the consent of a majority of the qualified electors within such township, ward or borough ; no person shall be elected to such office, unless he shal] have resided within the township, borough, ward or district, for one year next preceding his election. In cities containing over fifty oe inhabitants, not more than one alderman shall be elected in each ward or istrict. Srcr. 12. In Philadelphia, there shall be established, for each thirty thousand inhabitants,‘ one court, not of record, of police and civil causes, with jurisdiction CONSTITUTION OF PENNSYLVANIA. 179 Penn. St. 308. constitution. 3 Y. 96, 2 A new power was hereby intended to be superadded to their offices, but the judges of the supreme court were invested with the like power by the provincial act of 1722, which conferred upon them all the powers of the justices of the court of king’s bench in England, who are justices of the peace throughout the kingdom, ex offteio. And these powers were secured to them by the 8 The writ of certiorari may issue from the common pleas, wherever a new jurisdiction is con- ferred upon magistrates, and the proceeding is summary. 1 Brewst. 411. * This section does not execute itself ; there can be no increase in the number of courts with- out legislative action. 16 W. N.C. 483. CONSTITUTION OF PENNSYLVANIA. 51 not exceeding one hundred dollars; such courts shall be held by magistrates, whose term of office shall be five years, and they shall be elected on general ticket, by the qualified voters at large ; and in the election of the said magistrates, no voter shall vote for more than two-thirds of the number of persons to be elected, when more than one are to be chosen; they shall be compensated only by fixed salaries, to be paid by said county ; and shall exercise such jurisdiction, civil and criminal, except as herein provided, as is now exercised by aldermen, subject to such changes, not involving an increase of civil jurisdiction, or conferring political duties, as may be made by law. In Philadelphia, the office of alderman is abolished. Scr. 13. All fees, fines and penalties in said courts shall be paid into the county treasury.! Sect. 14. In all cases of summary conviction in this commonwealth, or of judg- ment in suit for a penalty, before a magistrate, or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court, or judge thereof, upon cause shown. Sror. 15. All judges required to be learned in the law, except the judges of the supreme court, shall be elected by the qualified electors of the respective districts over which they are to preside,? and shall hold their offices for the period of ten years, if they shall so long behave themselves well; but for any reasonable cause, which shall not be sufficient ground forimpeachment, the governor may remove any of them, on the address of two-thirds of each house of the general assembly. Srcr. 16. Whenever two judges of the supreme court are to be chosen for the same term of service, each voter shall vote for one only, and when three are to be chosen, he shall vote for no more than two; candidates highest in vote shall be declared elected. Srct. 17. Should any two or more judges of the supreme court, or any two or more judges of the court of common pleas for the same district, be elected at the same time, they shall, as soon after the election as convenient, cast lots for priority of commission, and certify the result to the governor, who shall issue their com- missions in accordance therewith. Sxcr. 18. The judges of the supreme court and the judges of the several courts of common pleas, and all other judges required to be learned in the law, shall, at stated times, receive for their services, an adequate compensation, which shall be fixed by law, and paid by the state They shall receive no other compensation, fees or perquisites of office, for their services, from any source; nor hold any other office of profit under the United States, this state or any other state. , Sxcr. 19. The judges of the supreme court, during their continuance in office, shall reside within this commonwealth; and the other judges, during their con- tinuance in office, shall reside within the districts for which they shall be respect- ively elected. Szor. 20. The several courts of common pleas, besides the powers herein con- ferred, shall have and exercise, within their respective districts, subject to such changes as may be made by law, such chancery powers as are now vested by law in the several courts of common pleas of this commonwealth, or as may hereafter be conferred upon them by law. Sect. 21. No duties shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial; nor shall any of the judges thereof exercise any power of appointment, except as herein provided." The court of nisi prius is hereby abolished; and no court of original jurisdiction, to be presided over by any one or more of the judges of the supreme court, shall be established. Scr. 22. In every county wherein the population shall exceed one hundred 12W.N. 0.210. 78 Penn. St. 298. been increased since his appointment; neither 3 The legislature cannot constitutionally pro- vide that a judge elected by the people shall be ex officio judge of a new court, with a different territorial jurisdiction. 66 Penn. St. 76. 3 The legislature cannot abolish «a judicial dis- trict, and thus legislate out of office the president judge, before the expiration of his term. 62 Penn. St. 343. 4 The legislature cannot diminish the compen- sation of a president judge, whose salary has can they impose a state tax upon his salary, to be deducted at the treasury, before payment. 5 W. & §. 403. 5 See 1S. & R. 1. 6 The legislature cannot vest the determination of legal rights in a court of equity, so as to exclude the constitutional right of trial by jury. 42 Penn. St. 488. 73 Ibid. 169, 1 7 Leg. Gaz. 117. L, 52 CONSTITUTION OF PENNSYLVANIA. and fifty thousand, the general assembly shall, and in any other county, may, establish a separate orphans’ court, to consist of one or more judges, who shall be learned in the law; which court shall exercise all the jurisdiction and powers now vested in, or which may hereafter be conferred upon the orphans’ courts ; and there- upon, the jurisdiction of the judges of the court of common pleas within such county, in orphans’ court proceedings, shall cease and determine. In any county in which a separate orphans’ court shall be established, the register of wills shall be clerk of such court,! and subject to its directions, in all matters pertaining to his office; he may appoint assistant clerks, but only with the consent and approval of said court. All accounts filed with him as register, or as clerk of the said separate orphans’ court, shall be audited by the court, without expense to parties, except where all parties in interest in a pending proceeding shall nominate an auditor, whom the court may, in its discretion, appoint. In every county, orphans’ courts shall possess all the powers and jurisdiction of a register’s court; and separate registers’ courts are hereby abolished. Sor. 23. The style of all process shall be “‘ The Commonwealth of Pennsylvania.’ All prosecutions shall be carried on in the name, and by the authority of the com- monwealth of Pennsylvania, and conclude “against the peace and dignity of the same.”’S Sect. 24. In all cases of felonious homicide, and in such other criminal cases as may be provided for by law, the accused, after conviction and sentence, may remove the indictment, record and all proceedings, to the supreme court, for review.‘ Srct. 25. Any vacancy happening by death, resignation or otherwise, in any court of record, shall be filled by appointment by the governor, to continue till the first Monday of January next succeeding the first general election, which shall occur three or more months after the happening of such vacancy.® Srct. 26. All laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction and powers of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process and judg- ment of such courts, shall be uniform ;* and the general assembly is hereby pro- hibited from creating other courts, to exercise the powers vested by this constitution in the judges of the courts of common pleas and orphans’ courts. Srcr. 27. The parties, by agreement filed, may, in any civil case, dispense with trial by jury, and submit the decision of such case to the court having jurisdiction thereof, and such court shall hear and determine the same; and the judgment thereon shall be subject to writ of error, as in other cases. ARTICLE VI. OF IMPEACHMENT AND REMOVAL FROM OFFIOE. Szor. 1. The house of representatives shall have the sole power of impeach- ment. Sror. 2. All impeachments shall be tried by the senate ;? when sitting for that purpose, the senators shall be upon oath or affirmation; no person shall be con- victed without the concurrence of two-thirds of the members present. Szcr. 3. The governor and all other civil officers shall be liable to impeachment for any misdemeanor in office ;* but judgment in such cases shall not extend 1 See 78 Penn. St. 339. 2 Process must go in the name of the common- wealth of Pennsylvania; but it is immaterial, in what part of the precept the commonwealth is introduced, so that the command be given in its name. 6 Binn. 184. 5¢The proper conclusion of an indictment is, Phila. 609. And see 81 Penn. St. 432. 254. 90 Ibid. 397. 7 A momber of the house of representatives, who votes in favor of prosecuting an impeach- ment, is net thereby disqualified, if subsequently elected a senator, from sitting on the trial thereof, Addison’s Trial 21-8. Porter’s Trial 53. 83 Ibid. “against the peace and dignity of the common- wealth of Pennsylvania.” 5S. & R.463. A con- clusion ‘against the peace of the state, the gov- ernment and dignity of the same,” is defective. 1 Gr. 262-3. * This does not empower the supremo court to review the discretion of the court below in refus- ing to grant a new trial. 102 Penn. St. 66. See 27 Penn. St. 444. 13 N. Y. 350. § This does not repeal prior special laws. 10 8 A president judge is liable to impeachment, for preventing one of his associates from deliver- ing his opinion to a grand or petit jury, upon a matter before the court. Addison’s Trial 16, 17, 114, 151. The presiding judge is the proper organ of the court, to express its o inion; but each member has a right, and it is his duty, to dcliver his sontiments upon every subject that occurs in court, Ibid. 114. 4 Dall. 225, . ter’s Trial 61. ew 25. See Por. CONSTITUTION OF PENNSYLVANIA. 53 further than to removal from office, and disqualification to hold any office of trust or profit under this commonwealth; the person accused, whether convicted or acquitted, shall, nevertheless, be liable to indictment, trial, judgment and punish- ment, according to law. Szor. 4. All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed, on conviction of misbehavior in office, or of any infamous crime.t Appointed officers, other than judges of the courts of record, and the superintendent of public instruction, may be removed, at the pleasure of the power by which they shall have been appointed? All officers elected by the people, except governor, lieutenant-governor, members of the gen- eral assembly, and judges of the courts of record, learned in the law, shall be removed by the governor, for reasonable cause, after due notice and full hearing, on the address of two-thirds of the senate. ARTICLE VII. OF THE OATH OF OFFICE. Szcr. 1. Senators and representatives, and all judicial,’ state and county officers, shall, before entering on the duties of their respective offices, take and subscribe the following oath or affirmation : ‘I do solemnly swear (or affirm) that I will sup- port, obey and defend the constitution of the United States, and the constitution of this commonwealth, and that I will discharge the duties of my office with fidel- ity; that I have not paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure my nomination or election (or appointment), except for necessary and proper expenses expressly authorized by law; that I have not knowingly violated any election law of this commonwealth, or procured it to be done by others in my behalf; that I will not knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to my office, other than the compensation allowed by law.” The foregoing oath shall be administered by some person authorized to admin- ister oaths, and in the case of state officers and judges of the supreme court, shall be filed in the office of the secretary of the commonwealth, and in the case of other judicial and county officers, in the office of the prothonotary of the county in which the same is taken; any person refusing to take said oath or affirmation, shall forfeit his office ; and any person who shall be convicted of having sworn or affirmed falsely, or of having violated said oath or affirmation, shall be guilty of perjury, and be for ever disqualified from holding any office of trust or profit within this commonwealth. The oath to the members of the senate and house of repre- sentatives, shall be administered by one of the judges of the supreme court, or of a court of common pleas learned in the law, in the hall of the house to which the members shall be elected. ARTICLE VIII. OF SUFFRAGE AND ELECTIONS. Secr. 1. Every male citizen, twenty-one years of age, possessing the following qualifications, shall be entitled to vote at all elections :* I. He shall have been a citizen of the United States at least one month. II. He shall have resided in the state one year (or if, having previously been a qualified elector or native-born citizen of the state, he shall have removed there- from and returned, then six months) immediately preceding the election. 1 A conviction of the offence of bribing an elec- assembly to be unconstitutional. 1 Binn. 416. It tor to vote for him, does not disqualify a sheriff from exercising the duties of his office. 3 W. & S. 338. A conviction for misbehavior in office, requires the removal of the officer convicted, and ea must be part of the judgment. 1 Leg. Gaz. » 455. 3100 Penn. St. 222. 103 Ibid. 481. 3 See 128. & R. 353. It is from this clause, the courts derive their power to declare an act of is the duty of the court, to declare an act of assem- bly to be void, if it be a manifest breach of the constitution. 128. & R. 330. But nothing short of that, will justify them in so doing. 66 Penn. St. 164. 99 Ibid. 535. 4 No constitutional qualification of a voter can be abridged, added to, or altered, by legislation. 58 Penn. St. 338. 59 Ibid. 109. 1 Brewst. 103. -2 Stew. 239. 54 CONSTITUTION OF PENNSYLVANIA. III. He shall have resided in the election district where he shall offer to vote. at least two months immediately preceding the election.’ Ms elt IV. If twenty-two years of age or upwards, he shall have paid, within two years, a state or county tax, which shall have been assessed at least two months, and paid at least one month before the election.” Sror. 2. The general election shall be held annually on the Tuesday next follow- ing the first Monday of November; but the general assembly may by law fix a different day, two-thirds of all the members of each house consenting thereto. Sxcr. 3. All elections for city, ward, borough and township officers, for regular terms of service, shall be held on the third Tuesday of February.® Sect. 4. All elections by the citizens shall be by ballot. Hvery ballot voted ‘ shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the elector who presents the ballot. Any elector may write his name upon his ticket, or cause the same to be written thereon, and attested by a citizen of the district. The elec- tion officers shall be sworn or affirmed not to disclose how any elector shall have voted, unless required to do so as witnesses in a judicial proceeding. Sot. 5. Electors shall in all cases, except treason, felony and breach or surety of the peace, be privileged from arrest, during their attendance on elections, and in going to and returning therefrom. Szcot. 6. Whenever any of the qualified electors of this commonwealth shall be in actual military service, under a requisition from the president of the United States, or by the authority of this commonwealth, such electors may exercise the right of suffrage, in all elections by the citizens, under such regulations as are or shall be prescribed by law, as fully as if they were present at their usual places of election. Srot. 7. All laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the state ; but no elector shall be deprived of the privilege of voting, by reason of his name not being registered. Sect. 8. Any person who shall give, or promise, or offer to give, to an elector, any money, reward or other valuable consideration, for his vote at an election, or for withholding the same, or who shall give, or promise to give, such consideration, to any other person or party, for such elector’s vote, or for the withholding thereof, and any elector who shall receive, or agree to receive, for himself or for another, avy money, reward or other valuable consideration, for his vote at an election, or for withholding the same, shall thereby forfeit the right to vote at such election; and any elector whose right to vote shall be challenged for such cause, before the election officers, shall be required to swear or affirm that the matter of the challenga is untrue, before his vote shall be received. : Srcr. 9. Any person who shall, while a candidate for office, be guilty of bribery, fraud or wilful violation of any election law, shall be for ever disqualificd from holding an office of trust or profit in this commonwealth ; and any person convicted of wilful violation of the election laws, shall, in addition to any penalties provided by law, be deprived of the right of suffrage absolutely, fora term of four years. Sect. 10. In trials of contested elections, and in proceedings for the investiga- tion of elections, no person shall be permitted to withhold his testimony, upon the ground that it may criminate himself, or subject him to public infamy; but such testimony shall not afterwards be used against him, in any judicial proceeding, except for perjury in giving such testimony. Sgor. 11. Townships and wards of cities or boroughs, shall form or be divided into election districts of compact and contiguous territory, in such manner as the court of quarter sessions of the city or county in which the same are located may direct: but districts in cities of over one hundred thousand inhabitants shall be divided by the courts of quarter sessions, having jurisdiction therein, whenever, at the next preceding election, more than two hundred and fifty votes shall have been polled therein; and other election districts, whenever the court of the proper county 1 See 71 Penn. St. 302. 11 Phila. 641. 10 that it should be a poll-tux. 28. & R. 267, And Ibid. 213. 5 W. N. 0.9, seo 1 Brewst. 102-3 tos 2 It must have been assessed upon the elector 83 .W.N. C. 477. individually ; but, it seems, that it is not required 4 83 Penn, St. 105. CONSTITUTION OF PENNSYLVANIA. 55 shall be of opinion, that the convenience of the electors and the public interests will be promoted thereby. Sgcr. 12, All elections by persons in a representative capacity shall be viva voce. Sect. 13. For the purpose of voting, no person shall be deemed to have gained a residence, by reason of his presence, or lost it, by reason of his absence, while employed in the service, either civil or military, of this state or of the United States, nor while engaged in the navigation of the waters of the state or of the United States, or on the high seas, nor while a student of any institution of learning, nor while kept in any poor-house or other asylum, at public expense, nor while con- fined in public prison.t Sect. 14. District election boards shall consist of a judge and two inspectors, who shall be chosen annually by the citizens. Each elector shall have the right to. vote for the judge and one inspector, and each inspector shall appoint one clerk, The first election board for any new district shall be selected, and vacancies in elee. tion boards filled, as shall be provided by law. lection officers shall be privileged from arrest, upon days of election, and while engaged in making up and transmit- ting returns, except upon warrant of a court of record or judge thereof, for an election fraud, for felony, or for wanton breach of the peace. In cities, they may claim exemption from jury duty, during their terms of service. Scr. 15. No person shall be qualified to serve as an election officer, who shall hold, or shall, within two months, have held, any office, appointment or employment in or under the government of the United States or of this state, or of any city or county, or of any municipal board, commission or trust, in any city, save only justices of the peace and aldermen, notaries-public, and persons in the militia service of the state ; nor shall any election officer be eligible to any civil office, to be filled at an election at which he shall serve, save only to such subordinate municipal or local offices, below the grade of city or county offices, as shall be designated by general law. Srct. 16. The courts of common pleas of the several counties of the common. wealth shall have power, within their respective jurisdictions, to appoint overseers of elections, to supervise the proceedings of election officers, and to make report to the court as may be required ; such appointments to be made for any district ina city or county, upon petition of five citizens, lawful voters of such election district, setting forth that such appointment is a reasonable precaution to secure the purity and fairness of elections ; overseers shall be two in number, for an election district, shall be residents therem, and shall be persons qualified to serve upon election boards, and in each case, members of different political parties ; whenever the members of an election board shall differ in opinion, the overseers, if they shall be agreed thereon, shall decide the question of difference; in appointing overseers of election, ali the law judges of the proper court, able to act at the time, shall concur in the appointments made. Secr. 17. The trial and determination of contested elections of electors of pres- ident and vice-president, members of the general assembly, and of all public offi- cers, whether state, judicial, municipal or local, shall be by the courts of law, or by one or more of the law judges thereof ;? the general assembly shall, by general law, designate the courts and judges by whom the several classes of election contests shall be tried, and regulate the manner of trial, and all matters incident thereto ; but no such law assigning jurisdiction, or regulating its exercise, shall apply to any contest arising out of an election held before its passage. ARTICLE TX. OF TAXATION AND FINANCE. Sor. 1. All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected 111 Phila. 641. 8 This provision did not execute itself; but was 2 It was held in 22 Pitts. L. J. 201, that this mandatory on the legislature to enact general laws clause, in connection with the act of 19 May 1875, to carry it into effect. 81 Penn. St. 482. 10 W. abrogated the provision in the charter of the city N.C. 498. 4 Luz. L. Reg. 110. It did not mean, of Pittsburgh, that the councils should be the that the property should be separated from the judges of the election of their own members. owners, or that property, not owners, should be 56 CONSTITUTION OF PENNSYLVANIA. under general laws ;! but the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious wor ship,? places of burial not used or held for private or corporate profit, and institu- tions of purely public charity.® Secr. 2. All laws exempting property from taxation, other than the property above enumerated, shall be void. Sxct. 3. The power to tax corporations and corporate property shall not be sur- rendered or suspended, by any contract or grant to which the state shall bea party, Scr. 4. No debt shall be created by or on behalf of the state, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the state in war, or to pay existing debt; and the debt created to supply deficiencies in reve- - nue, shall never exceed, in the aggregate, at any one time, one million of dollars. Scr. 5. All laws authorizing the borrowing of money by and on behalf of the state, shall specify the purpose for which the money is to be used; and the money so borrowed shall be used for the purpose specified, and no other. Scr. 6. The credit of the commonwealth shall not be pledged or loaned to any individual, company, corporation or association ; nor shall the commonwealth become a joint owner or stockholder in any company, association or corporation. Sect. 7. The general assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, associa- tion or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association, institution or individual. Sect. 8. The debt of any county, city, borough, township, school district or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt, or increase its indebtedness, to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof, ata public election, in such manner as shall be provided by law;® but any city, the debt of which now exceeds seven per centum of such assessed valuation, may be authorized by law to increase the same three per centum, in the aggregate, at any one time, upon such valuation. Secr. 9. The commonwealth shall not assume the debt, or any part thereof, of any city, county, borough or township, unless such debt shall have been contracted to enable the state to repel invasion, suppress domestic insurrection, defend itself in time of war, or to. assist the state in the discharge of any portion of its present indebtedness. Sxcr. 10. Any county, township, school district or other municipality incurring any indebtedness shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest, and also the principal thereof within thirty years. Sect. 11. To provide for the payment of the present state debt, and any addi- tional debt contracted as aforesaid, the general assembly shall continue and maintain the sinking fund, sufficient to pay the accruing interest on such debt, and annually to reduce the principal thereof, by a sum not less than two hundred and fifty thous- and dollars; the said sinking fund shall consist of the proceeds of the sales of the taxed. 79 Penn. St.100. Therefore,an act tax- held therein. 1 Chest. Co. R. 265. Conventual ing coal companies on their franchises, according to the amount of coal mined, is constitutional. Ibid. 32 Leg. Int. 336; 2 Pears. 402. And see 83 Penn. St. 156. 3 L. Law Rev. 49. This sec- tion prohibits the levying of an income tax. 16 Ww. N. C. 289. 1 The legislature may, nevertheless, classify the subjects of taxation. 32 Sm. 911. 2 In 85 Penn. St. 288, it was held, that ground upon which a church is in course of erection, but which has never been used for divine worship, is not exempt from taxation under the act of 1874, But this was remedied by the act 4 June 1879, P. L. 90. And the supreme court of New York came to a different conclusion, in 20 Hun 297. But a parsonage is not exempt, though erected upon ground appurtenant to a church, 10 W.N. C. 170; though occasional religious services are buildings, in which instruction is given to all persons gratuitously, who are unable to pay, and in which divine service is statedly holden, are not exempt. 10 W. N.C. 168. As to the exemption of camp-mecting grounds, see 12 Ibid. 103; 1 Kulp 49. sna See 86 Ponn. St. 306. 90 Ibid. 21. 94 Ibid, + 44 W.N.C. 213. 2 Pears. 230. See 48 Leg. Int. 36. 5 See 47 Penn. St. 189. 77 Ibid. 338. 84 Ibid. 55. 103 Thid. 273. 2 W. N.C. 349. An act authorizing the imposition of a tax, for the payment of bounties to volunteers, to fill an im- pending draft, is not forbidden by this section, 50 Penn. St. 150 8 See 16 W.N. C. 484. 17 Ibid. 42, CONSTITUTION OF PENNSYLVANIA. 57 public works or any part thereof, and of the income or proceeds of the sale of any stocks owned by the commonwealth, together with other funds and resources that may be designated by law, and shall be increased from time to time, by assigning to it any part of the taxes or other revenues of the state not required for the ordinary and current expenses of the government; and unless in case of war, invasion or insurrection, no part of the said sinking fund shall be used or applied otherwise than in the extinguishment of the public debt. Szcr. 12. The moneys of the state, over and above the necessary reserve, shall be used in the payment of the debt of the state, either directly or through the sink- ing fund; and the moneys of the sinking fund shall never be invested in or loaned upon the security of anything, except the bonds of the United States, or of this state. Secr. 13. The moneys held as necessary reserve shall be limited by law to the amount required for current expenses, and shall be secured and kept as may be pro- vided by law. Monthly statements shall be published, showing the amount of such moneys, where the same are deposited, and how secured. Sxcr. 14. The making of profit out of the public moneys, or using the same for any purpose not authorized by law, by any officer of the state, or member or officer of the general assembly, shall be a misdemeanor, and shall be punished as may be provided by law; but part of such punishment shall be disqualification to hold office for a period of not less than five years. ARTICLE X. OF EDUCATION. Sxot. 1. The general assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this commonwealth, above the age of six years, may be educated, and shall appropriate at least one million dollars each year for that purpose. Srct. 2. No money raised for the support of the publie schools of the common- wealth, shall be appropriated to or used for the support of any sectarian school. Srcr. 3. Women, twenty-one years of age and upwards, shall be eligible to any office of control or management under the school laws of this state. ARTICLE XI. OF THE MILITIA. Sect. 1. The freemen of this commonwealth shall be armed, organized and disci- plined for its defence, when and in such manner as may be directed by law. The general assembly shall provide for maintaining the militia, by appropriations from the treasury of the commonwealth ; and may exempt from military service, persous having conscientious scruples against bearing arms. ARTICLE XII. OF PUBLIC OFFICERS. Sect. 1. All officers, whose selection is not provided for in this constitution, shall be elected or appointed as may be directed by law. Sect. 2. No member of congress from this state, nor any person holding or exercising any office or appointment of trust or profit under the United States, shall, at the same time,! hold or exercise any office in this state, to which a salary, fees or perquisites shall be attached. The general assembly may by law declare what offices are incompatible.? Szcr. 3. Any person who shall fight a duel, or send a challenge for that pur- pose, or be aider or abettor in fighting a duel, shall be deprived of the right of holding any office of honor or profit in this state, and may be otherwise punished as shall be prescribed by law. 1 See 17S. & R. 228-30. 4 Dall. 229. Bright. hold the office of commissioner of an incorporated Elect. Cas. 655. district, although there were no fees or perquisites 2 Under the act of 16 April 1838, a deputy- annexed to the office. 5 Penn. St. 67. marshal of the United States was incompetent to 58 CONSTITUTION OF PENNSYLVANIA. ARTICLE XIII. OF NEW COUNTIES. Sor 1. No new county shall be established which shall reduce any county to less than four hundred square miles, or to less than twenty thousand inhabitants ; nor shall any county be formed of less area, or containing a less population ;! nor shall any line thereof pass within ten miles of the county seat of any county pro- posed to be divided. : ARTICLE XIV. OF COUNTY OFFICERS. Sxor. 1. County officers shall consist of sheriffs, coroners, prothonotaries, reg- isters of wills, recorders of deeds, commissioners, treasurers, surveyors, auditors or controllers? clerks of the courts, district-attorneys, and such others as may, from time to time, be established by law; and no sheriff or treasurer shall be eligible for the term next succeeding the one for whick he may be elected. Sgcr. 2. County officers shall be elected at the general elections, and shall bold their offices for the term of three years, beginning on the firsts Monday of January next after their election, and until their successors shall be duly qualified; all vacancies, not otherwise provided for, shall be filled in such manner as may be pro- vided by law. Szcr. 3. No person shall be appointed to any office within any county, who shall not have been a citizen and an inhabitant therein one year next before his appoint- ment, if the county shall have been so long erected ; but if it shall not have been so Jong erected, then within the limits of the county or counties out of which it shall have been taken. Secr. 4. Prothonotaries, clerks of the courts, recorders of deeds, registers of wills, county-surveyors and sheriffs shall keep their offices in the county town of the county in which they respectively shall be officers. Sxor. 5 The compensation of county officers shall be regulated by law, and all county officers who are or may be salaried shall pay all fees which they may be authorized to receive, into the treasury of the county or state, as may be directed by law.’ In counties containing over one hundred and fifty thousand inhabitants, all county officers shall be paid by salary ; and the salary of any such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term, and collected by or for him.* Secr. 6. The general assembly shall provide by law for the strict accountability of all county, township and borough officers, as well for the fees which may be vee by them, as for all public or municipal moneys which may be paid to them, Szor. 7. Three county commissioners and three county auditors shall be elected in each county where such officers are chosen, in the year 1875, and every third year thereafter; and in the election of said officers, each qualified elector shall vote for no more than two persons, and the three persons having the highest number of votes shall be elected; any casual vacancy in the office of county commis- sioner or county auditor shall be filled by the court of common pleas of the county in which such vacancy shall occur, by the appointment of an elector of the proper county, who shall have voted for the commissioner or auditor whose place is to be filled. ARTICLE XV. OF CITIES AND OITY CHARTERS, Szor. 1. Cities may be chartered, whenever a majority of the electors of any town or borough, having a population of at least ten thousand, shall vote, at any general election, in favor of the same. 1 See 19 N. Y. 41. 19 Barb. 81. 3 1W. N.C. 494, 5 Ibid. 203 2102 Penn. St. 354 41 Kulp 297. 39 Leg. Int. 296. CONSTITUTION OF PENNSYLVANIA. 59 Sxor. 2. Ng debt shall be contracted or liability incurred by any municipal - commission, except in pursuance of an appropriation previously made therefor by the municipal government.) Sxcr. 3. Every city shall create a sinking fund, which shall be inviolably pledged for the payment of its funded debt. ARTICLE XVI. OF PRIVATE CORPORATIONS. Szcr. 1, All existing charters, or grants of special or exclusive privileges, under which a bond jide organization shall not have taken place, and business been com- menced in good faith, at the time of’ the adoption of this constitution, shall there- after have no validity.’ Sxcr. 2. The general assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this con- stitution. Secor. 3. The exercise of the right of eminent domain shall never,be abridged, or so construed as to prevent the general assembly from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as the property of individuals ; and the exercise of the police power of the state shall never be abridged, or so construed as to permit corporations to conduct their | business in such manner as to infringe the equal rights of individuals or the general well-being of the state.’ Sect. 4. In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distri- bute them upon two or more candidates, as he may prefer.‘ Sor. 5. No foreign corporation shall do any business in this state, without hav- ing one or more known places of business, and an authorized agent or agents in the same, upon whom process may be served. Srct. 6. No corporation shall engage in any business other than that expressly authorized in its charter; nor shall it take or hold any real estate, except such as may be necessary and proper for its legitimate business. Srct. 7. No corporation shall issue stocks or bonds, except for money, labor done, or money or property actually received; and all fictitious increase of stock or indebt- edness shall be void. The stock and indebtedness of corporations shall not be increased, except in pursuance of general law, nor without the consent of the per- sons holding the larger amount in value of the stock, first obtained, at a meeting to be held, after sixty days’ notice, given in pursuance of law. Szct. 8. Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction The general assembly is hereby prohi- bited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals, made by viewers or otherwise ; and the amount of such damages, in all cases of appeal, shall, on the demand of either party, be determined by a jury, according to the course of the common law. 15 W.N. C. 153. 2 This section relates exclusively to private cor- porations. 102 Penn. St. 515. 3 See 30 Alb. L. J. 152. 4 This applies, without further legislation, to all private corporations incorporated since 1874. 104 Penn. St. 150. But not to then existing cor- porations, who have not since accepted the bene- fits of any legislation under the new constitution. 82 Penn. St. 518. 14 W. N. C. 560; 42 Leg. Int. 226. 23 Pitts. L. J. 122. 5 See 84 Penn. St. 319. 6 When private property is taken for public use, it is not necessary, that the compensation to the owner should be actually ascertained and paid, before the property is appropriated ; but it is suf- ficient, if an adequate remedy be provided, by which be can obtain compensation, without any unreasonable delay. 3 W. & S. 460. 6 Ibid. 1138. 1 Penn. St. 132. Ibid. 218. 10 Ibid. 97. 16 Ibid. 192-3. Bright. 183. See art. I. 3 10. When the commonwealth exercises the power of eminent domain, it must provide the means of payment, before taking the property; but a cor- poration or individual must pay or secure its price. 66 Penn. St. 404. The clause applies to existing corporations. 14 W. N. C. 545, See 17 Ibid. 193, 198, 60 CONSTITUTION OF PENNSYLVANIA. Sect. 9. Every banking law shall provide for the registry and countersigning, by an officer of the state, of all notes or bills designed for circulation ; and that ample security to the full amount thereof shall be deposited with the auditor-general, for the redemption of such notes or bills. Sxcr. 10. The general assembly shall have the power to alter, revoke or annul any charter of incorporation now existing, and revocable at the adoption of this con- stitution, or any that may hereafter be created, whenever, in their opinion, it may be injurious to the citizens of this commonwealth, in such manner, however, that no injustice shall be done to the corporators No law hereafter enacted shall create, renew or extend the charter of more than one corporation.’ A Sxcr. 11. No corporate body, to possess banking and discounting privileges,* shall be created or organized, in pursuance of any law, without three months’ previous public notice, at the place of the intended location, of the intention to apply for such privileges, in such manner as shall be prescribed by law; nor shall a charter for such privilege be granted for a longer period than twenty years. at Secr. 12. Any association or corporation organized for the purpose, or any indi- vidual, shall have the right to construct and maintain lines of telegraph within this state, and to connect the same with other lines; and the general assembly shall, by general law, of uniform operation, provide reasonable regulations to give full extent to this section. No telegraph company shall consolidate with, or hold a controlling interest in the stock or bonds of, any other telegraph company, owning a competing line, or acquire, by purchase or otherwise, any other competing line of telegraph. Secr. 13. The term “ corporations,” as used in this article, shall be construed to include all joint-stock companies or associations, having any of the powers or privi- leges of corporations not possessed by individuals or partnerships. ARTICLE XVII. OF RAILROADS AND CANALS. Szcrt. 1. All railroads and canals shall be public highways, and all railroad and zanal companies shall be common carriers. Any association or corporation organ- ized for the purpose, shall have the right to construct and operate a railroad between any points within this state, and to connect, at the state line, with railroads of other states. very railroad company shall have the right, with its road, to intersect, con- nect with or cross any other railroad ;4 and shall receive and transport each the other’s passengers, tonnage and cars, loaded or empty, without delay or discrimi- nation. Sect. 2. Every railroad and canal corporation organized in this state shall main- tain an office therein, where transfers of its stock shall be made, and where its books shall be kept for inspection by any stockholder or creditor of such corporation, in which shall be recorded the amount of capital stock subscribed or paid in, and by whom, the names of the owners of its stock, and the amounts owned by them, respectively, the transfers of said stock, and the names and places of residence of its officers. Sucr. 3. All individuals, associations and corporations shall have equal right to have persons and property transported over railroads and canals, and no undue or unreasonable discrimination shall be made, in charges for, or in facilities for, trans- portation of freight or passengers, within the state, or coming from or going to any other state. Persons and property transported over any railroad, shall be delivered 1 This clause reserves to the state the right to im- pose taxes upon a bank, according to the legisla- tive discretion, notwithstanding a provision in its charter ‘‘ that the capital stock in such bank shall not be subject to taxation, for other than state purposes.” 87 Penn. St. 340. It formsa part of the contract with every banking corporation, 21 N.Y. 9. The legislature is not the final judge whether the casus judicis, upon which the autho- rity to repeal a charter is based, has accrued. 58 Peun. St. 26, 2 To create, renew or extend a charter, within the meaning of this section, means, to make a charter which never existed before; to revive an old one which has expired; or to increase the time for the existence of one which would other- wise reach its limit at an earlier period. 27 Penn. St. 380, 388. And see 21 Ibid. 200. 3 The exercise of the banking privilege of dis- counting notes by a saving-fund society, incorpo- rated without such notice, renders the notes so discounted void, in their hands; such illegal action cannot be a ground of title. 5 Phila. 18. The privileges granted to building associations are not within this prohibition. 35 Penn, St. 223, Ibid. 225 n. 30 Ibid. 465. The word “ discount- ing,” is to be understood in its banking sense, and is confined to dealing in promissory notes and negotiable paper. 4 Leg. Gaz. 400. § See 77 Penn. St. 173. CONSTITUTION OF PENNSYLVANIa. 61 at any station, at charges not exceeding the charges for transportation of persons and property of the same class, in the same direction, to any more distant station ; but excursion and commutation tickets may be issued, at special rates. Sect. 4. No railroad, canal or other corporation, or the lessees, purchasers or man- agers of any railroad or canal corporation, shall consolidate the stock, property or franchises of such corporation, with, or lease or purchase the works or franchises of, or in any way control, any other railroad or canal corporation, owning, or having under its control, a parallel or competing line; nor shall any officer of such railroad or canal corporation act as an officer of any other railroad or canal corporation, owning or having the control of a parallel or competing line; and the question whether railroads or canals are parallel or competing lines, shall, when demanded by the party complainant, be decided by a jury, as in other civil issues. Szor. 5. No incorporated company, doing the business of a common carrier, shall, directly or indirectly, prosecute or engage in mining or manufacturing articles, for transportation over its works; nor shall such company, directly or indirectly, engage in any other business than that of common carriers, or hold or acquire lands, freehold or leasehold, directly or indirectly, except such as shall be necessary for carrying on its business; but any mining or manufacturing company may carry the products of its mines and manutactories on its railroad or canal, not exceeding fifty miles in length. Sxct. 6. No president, director, officer, agent or employee of any railroad or canal company shall be interested, directly or indirectly, in the furnishing of material or supplies to such company, or in the business of transportation as a common carrier of freight or passengers over the works owned, leased, controlled or worked by such company. Sect. 7. No discrimination in charges, or facilities for transportation, shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback or otherwise ; and no railroad or canal company, or any lessee, manager or employee thereof, shall make any preferences in furnishing cars or motive power. Sscr. 8. No railroad, railway or other transportation company shall grant free passes, or passes at a discount, to any person, except officers or employees of the company. Scr. 9. No street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of its local authorities. Sect. 10. No railroad, canal or other transportation company, in existence at the time of the adoption of this article, shall have the benefit of any future legislation, by general or special laws, except on condition of complete acceptance of all the provisions of this article. Sxct. 11. The existing powers and duties of the auditor-general in regard to railroads, canals and other transportation companies, except as to their accounts, are hereby transferred to the secretary of internal affairs, who shall have a general supervision over them, subject to such regulations and alterations as shall be pro- vided by law; and, in addition to the annual reports now required to be made, said secretary may require special reports, at any time, upon any subject relating to the business of said companies, from any officer or officers thereof. Sror. 12. The general assembly shall enforce, by appropriate legislation, the pro- visions of this article. ARTICLE XVIII. ’ OF FUTURE AMENDMENTS. Szcr. 1. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives; and, if the same shall be agreed to by a majority of the members elected to each house, such proposed amendment or amend- ments shall be entered on their journals, with the yeas and nays taken thereon, and the secretary of the commonwealth shall cause the same to be published, three months before the next general election, in at least two newspapers in every county 1 But a person riding on a free pass is not a an injury resulting from negligence. 3 Penny. trespasser, and therefore, may recover damages for 190. * 62 CONSTITUTION OF PENNSYLVANIA. in which such newspapers shall be published ; and if, in the general assembly uext afterwards chosen, such proposed amendment or amendments shall be agreed to by a majority of the members elected to each house, the secretary of the commonwealth shall cause the same again to be published in the manner aforesaid; and such pro- posed amendment or amendments shall be submitted to the qualified electors of the state, in such manner, and at such time, at least three months after being so agreed to by the two houses, as the general assembly shall prescribe ; and it such amend- ment or amendments shall be approved by a majority of those voting thereon, such amendment or amendments shall become a part of the constitution ; but no amend- ment or amendments shall be submitted oftener than once in five years. When two or more amendments shall be submitted they shall be voted upon separately. SCHEDULE) THAT no inconvenience may arise from the changes in the constitution of the commonwealth, and in order to carry the same into complete operation, it is hereby declared, that— Srct. 1. This constitution shall take effect on the first day of January, in the year 1874, for all purposes not otherwise provided for therein. Sxcr. 2. All laws in force in this commonwealth at the time of the adoption of this constitution, not inconsistent therewith, and all rights, actions, prosecutions and contracts, shall continue as if this constitution had not been adopted. Sxor. 3. At the general election in the years 1874 and 1875, senators shall be elected in all districts where there shall be vacancies. Those elected in the year 1874 shall serve for two years, and those elected in the year 1875 shall serve for one year. Senators now elected, and those whose terms are unexpired, shall represent the districts in which they reside, until the end of the terms for which they were elected. Sror. 4. At the general election in the year 1876, senators shall be elected from even numbered districts, to serve for two years, and from odd numbered districts, to serve for four years, Sxot. 5. The first election of governor, under this constitution, shall be at the general election in the year 1875, when a governor shall be elected for three years ; and the term of the governor elected in the year 1878, and of those thereafter elected, shall be for four years, according to the provisions of this constitution. Sucr. 6. At the general election in the year 1874, a lieutenant-governor shall be elected, according to the provisions of this constitution. Snort. 7. The secretary of internal affairs shall be elected at the first general election after the adoption of this constitution; and, when the said officer shall be duly elected and qualified, the office of surveyor-general shall be abolished. The surveyor-general in office at the time of the adoption of this constitution shall con- tinue in office until the expiration of the term for which he was elected. Sxor. 8. When the superintendent of public instruction shall be duly qualified the office of superintendent of common schools shall cease. Scr. 9. Nothing contained in this constitution shall be construed to render any person now holding any state office for a first official term, ineligible for re-election at the end of such term. : Secr. 10. The judges of the supreme court in office whon this constitution shall take effect, shall continue until their commissions severally expire. Two judges, in addition to the number now composing the said court, shall be elected at the first general election after the adoption of this constitution. . Sxor. 11. All courts of record, and all existing courts which are not specified in this constitution, shall continue in existence until the 1st day of December in 1 The schedule is not a part of the constitution; in office those . ft whose offi i its uses are temporary and auxiliary. 4 Luz. i by the constitution. i 0 Phin 0. bce i Reg. 297; 7 Leg. Gaz. 406, It does not continue Penn. St. 154, nae, CONSTITUTION OF PENNSYLVANIA. 63 the year 1875, without abridgment of their present jurisdiction, but no longer. The court of first criminal jurisdiction for the counties of Schuylkill, Lebanon and Dauphin, is hereby abolished ; and all causes and proceedings pending therein in the county of Schuylkill, shall be tried and disposed of in the courts of oyer and terminer and quarter sessions of the peace of said county. Szor. 12. The registers’ courts now in existence shall be abolished on the first day of January next succeeding the adoption of this constitution. Secor. 13. The general assembly shall, at the next session after the adoption of this constitution, designate the several judicial districts, as required by this consti- tution. The judges in commission when such designation shall be made, shall continue, during their unexpired terms, judges of the new districts in which they reside; but when there shall be two judges residing in the same district, the pres- ident judge shall elect to which district he shall be assigned, and the additional law judge shall be assigned to the other district. Szcr. 14. The general assembly shall, at the next succeeding session after each decennial census, and not oftener, designate the several judicial districts, as required by this constitution. Sxor. 15. Judges learned in the law of any court of record, holding commissions in force at the adoption of this constitution, shall hold their respective offices until the expiration of the terms for which they were commissioned, and until their suc- eessors shall be duly qualified. The governor shall commission the president judge of the court of first criminal jurisdiction for the counties of Schuylkill, Lebanon and Dauphin, as a judge of the court of common pleas of Schuylkill county, for the unexpired term of his office. Sect. 16. After the expiration of the term of any president judge of any court of common pleas, in commission at the adoption of this constitution, the judge of such court, learned in the law, and oldest in commission, shall be the president judge thereof; and when two or more judges are elected at the same time, in any judicial district, they shall decide by lot which shall be president judge; but when the president judge of a court shall be re-elected, he shall continue to be president judge of that court. Associate judges not learned in the law, elected after the adoption of this constitution, shall be commissioned to hold their offices for the term of five years from the first day of January next after their election. Srcr. 17. The general assembly, at the first session after the adoption of this. constitution, shall fix and determine the compensation of the judges of the supreme court, and of the judges of the several judicial districts of the commonwealth ; and the provisions of the thirteenth section of the article on legislation shall not be deemed inconsistent herewith. Nothing contained in this constitution shall be held to reduce the compensation now paid to any law judge of this commonwealth now in commission. . Scr. 18. The courts of common pleas in the counties of Philadelphia and Allegheny shall be composed of the present judges of the district court and court of common pleas of said counties, until their offices shall severally end, and of such other judges as may, from time to time, be elected. For the purpose of first organization in Philadelphia, the judges of the court number one, shall be Judges Allison, Pierce and Paxson; of the court number two, Judges Hare, Mitchell, and one other judge to be elected; of the court number three, Judges Ludlow, Finletter and Lynd; and of the court number four, Judges Thayer, Briggs and one other judge, to be elected. The judge first named shall be the president judge of said courts respect- ively, and thereafter, the president judge shall be the judge oldest in commission; but any president judge, re-elected in the same court or district, shall continue to be president judge thereof. The additional judges for courts numbers two and four, shall be voted for and elected at the first general election after the adoption of this constitution, in the same manner as the two additional judges of the supreme court, and they shall decide by lot to which court they shall'belong. Their term of office shall commence on the first Monday of January in the year 1775. Szor. 19. In the county of Allegheny, for the purpose of first organization under this constitution, the judges of the court of common pleas, at the time of 1 This means “ oldest in continuous service :” this section is permanent in its provisions. 2 Del- Co. R 324. 64 CONSTITUTION OF PENNSYLVANIA. the adoption of this constitution, shall be the judges of the court number one, and the judges of the district court, at the same date, shall be the judges of the common pleas number two. The president judges of the common pleas and district court shall be president judge of said courts number one and two, respectively, until their offices shall end; and thereafter, the judge oldest in commission shall be president judge; but any president judge re-elected in the same court or dis- trict shall continue to be president judge thereof. . . Sxor. 20. The organization of the courts of common pleas under this constitu- tion, for the counties of Philadelphia and Allegheny, shall take effect on the first Monday of January 1875, and existing courts in said counties shall continue, with their present powers and jurisdiction, until that date; but no new suits shall be instituted in the court of nisi prius after the adoption of this constitution. Sxct. 21. The causes and proceedings pending in the court of nisi prius, court of common pleas, and district court in Philadelphia, shall be tried and disposed of in the court of common pleas. The records and dockets of said courts shall be transferred to the prothonotary’s office of said county. Sxct. 22. The causes and proceedings pending in the court of common pleas in the county of Allegheny, shall be tried and disposed of in the court number one; and the causes and proceedings pending in the district court, shall be tried and disposed of in the court number two, Srcr. 23. The prothonotary of the court of common pleas of Philadelphia shall be first appointed by the judges of said court, on the first Monday of December in the year 1875,.and the present prothonotary of the district court in said county shall be the prothonotary of the said court of common pleas until said date, when his commission shall expire; and the present clerk of the.court of oyer and termi- ner and quarter sessions of the peace in Philadelphia shall be the clerk of such court, until the expiration of his present commission, on the first Monday of December in the year 1875. Scr. 24. In cities containing over fifty thousand inhabitants, except Philadel- phia, all aldermen in office at the time of the adoption of this constitution shall continue in office until the expiration of their commissions; and at the election for city and ward officers in the year 1875, one alderman shall be elected in each ward, as provided in this constitution. Secr. 25. In Philadelphia, magistrates, in lieu of aldermen, shall be chosen, as required in this constitution, at the election in said city for city and ward officers, in the year 1875 ; their term of office shall commence on the first Monday of April succeeding their election. The terms of office of aldermen in said city, holding, or entitled to, commissions at the time of the adoption of this constitution, shall not be affected thereby. Szor. 26. All persons in office in this commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the term for which they have been elected or appointed shall expire, and until their successors shall be duly qualified, unless otherwise provided in this constitution. . Suor. 27. The seventh article of this constitution prescribing an oath of office, shall take effect on and after the first day of January 1875. Sect. 28, The terms of office of county commissioners and county auditors, chosen prior to the year 1875, which shall not have expired before the first Monday of January in the year 1876, shall expire on that day. Sor. 29. All state, county, city, ward, borough and township officers, in office at the time of the adoption of this constitution, whose compensation is not provided for by salaries alone, shall continue to receive the compensation allowed them by law, until the expiration of their respective terms of office. Szor. 30. All state and judicial officers heretofore elected, sworn, affirmed, or in office when this constitution shall take effect, shall severally, within one month after such adoption, take and subscribe an oath or affirmation to support this constitution. Sgor. 31. The general assembly, at its first session, or as soon as may be after the adoption of this constitution, shall pass such laws as may be nec fe ‘ essary to carr the same into full force and effect. 3 - 1 See 82 Penn. St. 396. CONSTITUTION OF PENNSYLVANIA. 65 Scr. 82. The ordinance passed by this convention entitled “ An ordinance for submitting the amended constitution of Pennsylvania to a vote of the electors thereof,” shall be held to be valid, for all the purposes thereof. Szcr. 33. The words ‘‘ county commissioners,’ wherever used in this constitution and in any ordinance accompanying the same, shall be held to include the commis- sioners for the city of Philadelphia. Adopted at Philadelphia, on the third day of November, in the year of our Lord one thousand eight hundred and seventy-three. JOHN H. WALKER, Aitest :— President. ' W. L. Imsrre, Chief Clerk. THE MAGISTRATES VOCABULARY OF LAW TERMS AND LAW PHRASES, TRANSLATED AND EXPLAINED, FROM THE MOST APPROVED AUTHORITIES. LAW TERMS AND PHRASES Such as are most frequently used, not only in courts of justice, and in magis- trates’ offices, but among men of business, and in common conversation, the precise meaning of which is not so generally understood as is desirable—explained and their meanings given, according to the most modern and approved authorities. ACCESSORY. An accessory is he who is not the chief actor in the offence, nor present at its performance; but is some way concerned therein either before, or after, the fact committed. An acces- sory before the fact, is defined, by Sir Matthew Hale, to be, one who being ab- sent at the time of the crime committed, doth yet procure, counsel or command another to commit acrime. Herein ab- sence is necessary to make him an acces- sory ; for if such procurer, or the like, be present, he is guilty of the crime as prin- cipal. An accessory after the fact, may be when a person, knowing a felony to have been committed, receives, relieves, comforts or assists, the felon. Therefore, to make an accessory ex post facto [after the fact], it is in the first place required that he knows of the felony committed ; in the next place, he must receive, relieve, comfort or assist him—and generally any assistance whatever, given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assister an accessory. 1 Hale H. P. C. 616, 618. 2 Hawk. P. C. c. 29, § 32. 4 Bl. Com. 35, 36, 37. Whart. Law Dict. 11. ACCOMPLICE, one of many equally concerned in a felony ; generally applied to those who are admitted to give evi- dence against their fellow criminals. Whart. Law Dict. 14. ACQUITTAL, a release or discharge ; it most commonly signifies a deliverance and setting free of a person from the suspicion or guilt of an offence, as for instance, he that on a trial is discharged of a felony is said to be acquietatus de felonia ; and if he be drawn in question again for the same crime he may plead autrefois acquit [before acquitted], as his life shall not be twice put in danger for the same offence. 2 Inst. 385. Whart. Law Dict. 18. ADJOURNMENT. The same with the French word adjournment, and signi- fies a putting off until another day, or to another place. Cowel. Blount. An ad- journment of Parliament [of congress or the general assembly] is no more than a continuance of the session from one time to another. 1 Bl. Com. 185. Whart. Law Dict. 29. AFFIDAVIT. An affidavit isan oath in writing, sworn before some judge, or officer of a court, or other person, who hath authority to administer such oath, to evince the truth of certain facts therein contained. 3 Bl. Com. 304. 1 Lill. Abr. 44. Whart. Law Dict. 32. AFFRAY. An affray is the fighting of two or more persons in some public place, to the terror of his majesty’s sub- jects [or, the people of this common- wealth]; for, if the fighting be in private, it is no affray, but an assault. 1 Hawk. P. 0. ¢. 68. 4 Bl. Com. 145. Whart. Law Dict.34. And there must beastroke given or offered, or a weapon drawn, otherwise it is no affray. 3 Inst. 158. AGE is particularly used in law, for (67). 68 those special times which enable persons of both sexes to do certain acts, which before, through want of years and judg- ment, they are prohibited to do. As, for example, a male at twelve years old may take the oath of allegiance ; at fourteen, is at years of discretion, and therefore, may consent or disagree to marriage, and may choose his guardian ; at seventeen, muy be an executor; and at twenty-one, is at his own disposal, and may alien his lands, goods and chattels. A female, also, at seven years of age, may be be- trothed or given in marriage, at nine, is entitled to dower; at twelve, is at years of maturity, and therefore, may consent or disagree to marriage ; at fourteen, is at years of legal discretion, and may choose a guardian ; at seventeen, may be an executrix; and at twenty-one, may dispose of herself and her lands. So that full age, in male or female, is twenty- one years; which age is completed on the day preceding the anniversary of a person’s birth ; who, till that time, is an infant, and so styled in law. Oo. Litt. 78 b. 1 Bl. Com. 462. Whart. Law Dict. 34. AGREEMENT is the consent of two or more persons, concerning the one in parting with, and the other receiving some property, right or benefit. 1 Bae. Abr. Whart. Law Dict. 37. ALDERMAN, see Halderman. ALIMONY is that allowance the law allows to the wife after a divorce a mens@ et thoro [from bed and board], and is made to the woman for her support out of her husband’s estate; being settled at the discretion of the ecclesiastical [or other] judge, on consideration of all the circumstances of the case. 1 Bl. Com. 441. Whart. Law Dict. 39. AMBASSADOR. An ambassador is a person sent by one sovereign prince to another, to transact, in the place of his sovereign, such matters as relate to both states. Ambassadors are either ordinary or extraordinary ; the ordinary ambassa- dors are those who reside in the place whither sent; and, as the time of their return is indefinite, so is their business uncertain ; arising from emergent occa- sions: and commonly, the protection and affairs of the merchants is their greatest care. The extraordinary ambassadors, are made pro tempore, and employed upon some particular great affairs, as condolements, congratulations, or for MAGISTRATE’S VOCABULARY. overtures of marriage, or the like. 4 Inst 153. Molloy 144. Whart. Law Dict. 42, AMICUS CURIA. If a judge is doubtful or mistaken in matter of law, a stander-by may inform the court, as amicus curiz [a friend of the court.] Co. Litt. 178. Whart. Law Dict. 45. ANNO DOMINI [the year of our Lord]; the computation of time from the inearpvation of Jesus Christ, which is generally inserted in the dates of all public writings. Jacob. Whart. Law Dict. 4. ARBITRATION is where the parties injuring and injured submit all matters in dispute concerning and personal chat- tels, or personal wrong, to the judgment of two or more arbitrators, who are to decide the controversy ; and if they do not agree, it is usual to add, that another person be called in as wmpire, to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. 3 Bl. Com. 16. See Whart. Law Dict. 5. ARBITRATOR, is a person indiffer- ently chosen by third persons, between whom there are any matters in dispute, to determine all such matters in controversy, according to his own judgment, whether they relate to matter of law or fact. Termes de la Ley 54. Whart. Law Dict. 60. ARRAIGN, to call a man to answer in form of law. To arraign a prisoner, is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in an indictment. 4 Bl. Com. 322. Whart. Law Dict. 64. Arraignment is necessary only in capital cases. The trial may go on, in larceny, without arraignment. 5 S. & R. 316. Tn all cases of misdemeanor, a defendant may appear and plead by attorney. Ibid. ARRAY, an old French word, signify- ing the ranking or setting forth of a jury of men impannelled on acause. 18 H. VI., 14. And when we say to array a panel, that is to set forth the men impan- nelled one by another. F. N. B. 157. Whart. Law Dict. 64. To challenge the array of the panel, is at once to except against all persons arrayed or impannelled, in respect of partiality, or some default in the sheriff [or county commissioners]. Co. Litt. 156 a. : ARREST, a restraint of a man’s per- son, obliging him to be obedient to the LAW TERMS AND PHRASES. law ; and it is defined to be the execution of the command of some court of record, or officer of justice. An arrest is the be- ginning of imprisonment, where a man is first taken and restrained of his liberty by power of a lawful warrant. 2 Shep. Abr. 648. Wood’s Inst. 575. Arrests are either in civil or criminal cases; and there is this difference between the two, that none shall be arrested for debt, tres- pass, detinue or other cause of action, but by virtue of a precept or commandment out of some court ; but for treason, felony or breaking of the peace, every man hath authority to arrest without warrant or precept. Termes de la Ley 52. Whart. Dict. 65. ARREST OF JUDGMENT. To move an arrest of judgment, is to show cause why judgment should not be stayed, notwithstanding a verdict given. 3 Inst. 210. Whart. Law Dict. 65. ASSETS, signifies goods and chattels of a saleable nature, in the hands of the executor or administrator, sufficient, or enough, to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. 2 Bl. Com. 511. Whart. Law Dict. 67. ASSIGNEE, one that is assigned or appointed by another, to do any act, or perform any business. It also signifies one that taketh any right, title or inter- est in things, by an assignment from an assignor [the person who assigns]. Dyer 6. Whart. Law Dict. 69. ASSUMPSIT is a voluntary promise, made by word, by which a man assumes or takes upon him to perform or pay any thing to another; this word also compre- hends any verbal promise made upon con- sideration. Termes de la Ley 63. An action of assumpsit is given to a party injured by the breach or non-perform- ance of a contract legally entered into ; and it is founded on a contract either express or implied by law, and gives the party damages in proportion to the loss he has sustained by the violation of the contract. 1 Bac. Abr. Whart. Law Dict. 71. ‘ATTORNEY-AT-LAW is a person duly admitted in the courts, and who is appointed by another person, usually denominated his client, to prosecute or defend some suit on his behalf; and he is considered as a public officer belong- ing to the courts of justice in which he may be admitted. 3 Bl. Com. 25. Whart. Law Dict. 73. 69 BACKING OF WARRANTS is the signing of an authority on the back thereof, by a magistrate of a different county from that mentioned in the body thereof, empowering the officer to execute the same in such other county. 4 BI. Com. 291. Whart. Law Dict. 80. BALL is used, in our common law, for the freeing, or setting at liberty, of one arrested or imprisoned upon action, either civil or criminal, on surety taken for his appearance at a day and place certain. Bract. lib. 8. In civil cases, there is both common and special bail: common bail is in actions of small concern; and it is called common, because any sureties, in that case, are taken. Whereas, in causes of greater weight, as actions upon bonds or specialty, or other matters, where the debt amounts to £10, special bail, or surety, may be taken. 4 Inst. 179. Whart. Law Dict. 80. BAILMENT is a delivery of goods in trust, upon a contract, expressed or im- plied, that the trust shall be faithfully executed on the part of the bailee [the person to whom the goods are delivered]. As, if cloth be delivered, or (in our legal dialect) bazled to a tailor, to make a suit of clothes, he has it upon an implied con- tract, to render it again when made, and that ina workman-like manner, 2 BI. Com. 451. Whart. Law Dict. 82. BARON AND FEME are husband and wife. Co. Litt. 112. 1 Bl. Com. 441. Whart. Law Dict. 87. BARRISTER, a counsellor learned in the law; admitted to plead at the bar, and there to take upon him the protection and defence of clients. Fortescue. Whart. Law Dict. 88. BATTERY is an injury done to another in a violent manner, as by striking or beating of a man, pushing, jolting, &. And it is also defined by our law to be a trespass committed by one man upon another, vt et armis et contra pacem, &ec. Termes de la Ley 85. Whart. Law Dict. 89. BIGAMY signifies a double marriage, or marriage af two wives, one after another; and not the having of two together, more properly called polygamy. 3 Inst, 88. 4 Bl. Com. 163. Whart. Law Dict. 93. BILL single or penal, is a writing under seal, wherein one man is bound to another, to pay a sum of money on a day that is 70 ‘ MAGISTRATE’S future, or presently on demand, according to the agreement of the parties at the time it is entered into, and the dealings between them: and is divided into two sorts, viz. a bill single, without a penalty, and a bill penal, under a penalty. Rol. Abr. 148. BOND is a deed or obligatory instru- ment, in writing, whereby one doth bind himself, his heirs, executors and admin- istrators, to another, to pay a sum of money, or to do some other act, as to make a release, surrender an estate, for quiet enjoyment, to stand to an award, save harmless, perform a will, or the like. It contains an obligation with a penalty, and a condition which expressly mentions what money is to be paid, or other things to be performed, and the limited time for the performance thereof, for which the obligation is peremptorily binding. 2 Bl. Com. 339. Whart. Law Dict. 103. BRIBERY is where a person in a ju- dicial place takes any fee, gift, reward or brocage [brokerage]. for doing his office, other than that which is lawful. 3 Inst, 145. But taken largely it signifies the receiving or offering, any undue reward to or by any person concerned in the administration of public justice, whether judge, officer or the like, to act contrary to his duty ; and sometimes it signifies the taking or giving a reward for a public offence. 3 Inst. 9. Whart. Law Dict. 109. BROKERS are those that contrive, make and conclude bargains and con- tracts, between merchants and tradesmen, in matters of money and merchandise, for which they have a fee or reward. Cowel. Blount. Whart. Law Dict. 110. CAPTION, When any commission at law, or in equity, is executed, the com- missioners subscribe their names to a cer- tificate, testifying when and where the commission was executed; and this is called a caption. Also, when a man is ar- rested, the act of taking him is termed a caption. There is, also, the caption of an indictment, which is the setting forth of the style of the court before which the jurors made their presentment. Jacob. Whart. Law Dict. 121. CASH (sale for), In Pennsylvania, if one sell goods for cash, and the vendee [the purchaser] take them away, without payment of the money, the vendor [the seller] may pursue the party and retake VOCABULARY. them; and he would be justified in doing so by force. 1 Yeates 527. CAVEAT EMPTOR is a maxim which enters into every purchase, where the contrary is not stipulated, and equity can- not relieve against it, any more than it can against the terms of a bargain. 3 P. & W.446. See Whart. Law Dict. 126, CLERGY, BENEFIT OF. By stat, 3 Edw. I., c. 3, it is enacted, that for the scarcity of clergy in the realm of Eng- land to be disposed of in religious houses, or for priests, deacons and clerks of par- ishes, there should be a prerogative al- lowed to the clergy ; that if any man, that could read as aclerk, were tobe condemned to death, the bishop of the diocese might, if he would, claim him as a clerk; and he was to see him tried in the face of the court, if he could read or not ; if the prisoner could read, then he was to be delivered over to the bishop, who would dispose of him in some place of the clergy, as he should think meet; but if either the bishop would not demand him, or the prisoner could not read, then he was to be put to death. 2 Hale H. P. C. 377. Whart. Law Dict. 91. COHABITATION. For civil purposes, reputation and cohabitation are sufficient evidence of marriage. 1 P. & W. 450. COMMISSION. The commission of a justice, or a judge, is conclusive evi- dence of his appointment. Peters’ C. C. 188. COMMITMENT is the sending of a person to prison, by warrant or order, who hath been guilty of any crime. 4 Bl. Com. 296. Whart. Law Dict. 160. COMMON LAW. The common law is grounded upon the general customs of the realm, and includes in it, the law of nature, the law of God, and the prin- ciples and maxims of the law; it is founded upon reason; and is said to be the perfection of reason acquired by long study, observation and’ experience, ‘and refined by learned men in all ages. Co. Litt, 97, 142. 1 Bl. Com. 63, et seq. Whart. Law Dict. 161. : COMPETENCY (Witnesses). The general rule is, that all are competent as witnesses who are both able and willing to declare the truth. Consequently, the circumstances, which wholly disqualify a person as a witness, are, lst the want of religious belief, such as renders the party incapable of the obligation of an oath ; 2d, LAW TERMS AND PHRASES. the infamy of his character: 3d, certain legal relations between the party and witness. 2 Stark. Hv. 392. COMPOUNDING FELONY, or theft bote, is where the party robbed, not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. 1 Hawk. P. C. c. 59, § 5. Whart. Law Dict. 163. CONSPIRACY is an agreement of two or more persons, falsely to indict one, or to procure him to be indicted, for felony, riot or other misdemeanor; who, after acquittal, shail have a writ of conspiracy. Termes de la Ley 1738. Whart. Law Dict. 171. CONTINUANCE. A party who neg- lects, up to the day of hearing by a justice, to take out a subpoena, or resort to the proper legal steps to obtain the attend- ance of his witnesses, is not legally enti- tled to a continuance. 1 Ash. 221. CONVERSION is where a person has found another's goods and refuses to de- liver them, on demand, but converts them to his own use. 3 Bl. Com. 152. Whart. Law Dict. 181. COURT. A justice of the peace must, necessarily, have his court, or place of administering justice, at which his duties ought to be performed. 1 P, & W. 15. COURT OF ADMIRALTY is a court erected for deciding maritime causes. It hath jurisdiction only to determine causes arising wholly upon the sea out of the jurisdiction of a county. 4 Inst. 260. Whart. Law Dict. 25. CREDIT. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes upon trust, for there is noimplied order to the tradesman to trust my servant; but if I usually send him upon trust, or sometimes on trust, and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot possibly distinguish when ‘he comes by my order, and when upon his own authority. 1 Bl. Com. 430. CRIME is a positive breach or disre- gard of some existing public law, and generally means such offences as amount toa felony. 4 Bl. Com. 5. Whart. Law Dict. 196. CUSTOM AND USAGE. To make a custom or usage of trade obligatory, as a law of that trade, it must be certain, 71 uniform, reasonable and sufficiently an. cient, to be generally known. DAMAGE signifies generally any hurt or hindrance that a man receives in his estate; but in a particular sense, it is applied to what the jurors are to inquire ‘of and bring in, when any action passeth for the plaintiff. Co. Litt. 257. Whart. Law Dict. 205. Damages are a species of property ac- quired and lost by suit and judgment at law, and are given to a man by a jury, as a compensation and satisfaction for some injury sustained; as for battery, for im- prisonment, for slander, for trespass. 2 Bl. Com. 438. DATE of a deed is the description of the time ; viz. the day, month, year of our Lord, year of the reign in which the deed was made. Co. Litt. 6. Whart. Law Dict. 208. DAY, is ‘a certain space of time con- taining twenty-four hours: the natural day consists of twenty-four hours, and contains the solar day and the night; and the artificial day begins from the rising of the sun, and ends when it sets. Co. Litt. 135. Whart. Law Dict. 208. DEBT, in the usual acceptance of the word, is a sum of money due from one person to another. But in the legal sense, it is taken to be an action which lieth where a man oweth another a certain sum of money, by obligation or bargain, for a thing sold, or by contract, &c., and the debtor will not pay the debt at the day agreed. Selw. N. P. 484. Whart. Law Dict. 211. DEDIMUS POTESTATEM, is a writ issued out of the court of chancery [or other court], to commissioners, anthoriz- ing them to take an answer, to examine witnesses in a cause, to levy a fine in the common pleas, &c. Also, when any justice intends to act under any commis- sion of the peace, he sues out a writ of dedimus potestatem, from the clerk of the crown in chancery, empowering certain persons, therein named, to administer the usual oaths to him, which done, he is at liberty to act. 1 Bl. Com. 351. Whart. Law Dict. 215. DEED, is an instrument in writing, on parchment or paper, and under seal, con- taining some conveyance, contract, bar- gain or agreement between the parties thereto ; and it consists of three principal 72 points, writing, sealing and delivering. Co. Litt. 171. 2 Bl. Com. 295. Whart. Law Dict. 215. DEFAMATION is the offence of speaking slanderous words of another. Termes de la Ley 233. Whart, Law Dict. 218. DEFAULT is commonly taken for non-appearance in court ata day assigned, though it extends to any omission of that which we ought to do. Oo. Litt. 259. Whart. Law Dict. 219. DEFENDANT is the party that is sued in a personal action; as tenant is he that is sued in an action real. Cowel. Blount. Whart. Law Dict. 220. DEMAND, signifies a calling upon 4 man for anything due. 8 Co.153. Whart. Law Dict. 223. DEPOSITION is the testimony of a witness, otherwise called a deponent, put down in writing, by way of answer to in- terrogatories [or questions asked], exhib- ited for that purpose in courts of equity ; and the copies of such depositions regu- larly taken and published, are read as evidence at the hearing of the cause. Pract. Attorn., edit. 1, p. 234. See Whart. Law Dict. 227. DILATORY PLEAS are such as are put merely for delay ; as coverture, mis- nomer and the like. 3 Bl. Com. 301. Whart. Law Dict. 282. DISCHARGE on writs and process, &c., is where a man confined by some legal writ or authority, doth that which by law he is required to do; whereupon he is released or discharged from the matter for which he was confined. 1 Lill. Abr. 470. DISTRESS, in the most general sense, is anything which is taken and distrained for rent behind or in arrear. 2 Bl. Com. 42. Selw. Nisi Prius 612. Whart. Law Dict. 238. DIVORCE is a separation of a man and a woman who have been, de facto, married together, made by law, and is of two kinds; the one total, the other par- tial; the one @ vinculo matrimonii, the other, merely d mens@ et thoro. 1 BI. Com. 439. Whart. Law Dict. 241. DOCKET, or DOGGET, a record in the courts, containing an entry of judg- ment: thus, when rolls of judgment are brought in they are docketed, 7. e. entered on the docket of that term. West Symb. par. 2, §106. Whart. Law Dict. 241. MAGISTRATE’S VOCABULARY. DONOR and DONEE. Donor is he who gives lands or tenements to another in tail, &c. And the person to whom given is the donee. Termes de la Ley 287. Whart. Law Dict. 244. DOWER is the portion which a widow hath of the lands of her husband, after his decease, for the sustenance of herself, and the education of her children. Co. Litt. 30. Whart. Law Dict. 247. DUCES TECUM is a writ out of chancery, commanding a person to appear at a certain day, in court, and to bring with him some writings, evidences, or other things, to be inspected and exam- ined in court. Reg. Orig. Whart. Law Dict. 252. DUPLICATE signifies a copy or tran- script of any deed, writing or account. St.1 Car.I., ¢.10. Whart. Law Dict. 254. EALDERMAN was a man chosen to a place of superiority on account of his age and experience ; as the Senators were among the Romans: and hence the word alderman, in corporations ; and the word earl, which is only a contraction of eald- erman. 1 Bl. Com. 367. Whart. Law Dict. 255. EAVES-DROPPEBRS are such as lis- ten under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mis- chievous tales. 4 Bl. Com. 168, Whart. Law Dict. 256. ESCROW is where the delivery of a deed is made to a third person, to hold till some conditions be performed on the part of the grantee [the person to whom the sale has been made] ; in which case, it is not delivered as a deed, but as an escrow; that is, as a scroll or writing which is not to take effect as a deed, till the conditions be performed ; and then it is a deed to all intents and purposes. Co. Litt. 36. 2 Bl. Com. 307. Whart. Law Dict. 276. EXACTION, a wrong done by an offi- cer taking a reward, or fee, for that which the law does not allow. And the differ- ence between exaction and extortion is this: extortion is where an officer extorts more than his due, where something ts due to him: and exaction is where he wrests a fee or reward, where none ts due: for which the offender is to be fined and im- prisoned, and render to the party twice as much as the money he so takes, (Co. Litt. 368. Whart. Law Dict. 279. LAW TERMS AND PHRASES. EXECUTOR DE SON TORT, or executor of his own wrong, is he that takes upon him the office of an executor by intrusion, not being so constituted by the testator ; or, for want thereof, appoint- ed by the ordinary [register] to adminis- ter. Dyer 166. Selw. Nisi Prius 706. Whart. Law Dict. 287. EX OFFICIO, an act done in execu- tion of the power which a person has by virtue of an office, to doin certain cases, and without being applied to ; thus, a jus- tice of the peace may not only grant surety of the peace upon the complaint or request of any person ; but he may de- mand, and take it ex officio, at discretion, &c. Dalt. 270. Whart. Law Dict. 289. EX PARTE, party of the one part ; as a commission ex parte, in chancery ; which is a commission taken out and executed by one side or party only, on the other party’s neglecting or refusing to join. Cowel. Blount. Whart. Law Dict. 290. EX POST FACTO is a term used in the law, signifying something done after the time when it should have been done; thus, an act done, or estate granted, may be made good by matter ex post facto, that was not so at first, by election, &e. 5 Co. 22. EX POST FACTO LAWS are such as are made to operate on facts committed before the making thereof, by creating or aggravating crime, increasing the punish- ment, or changing the rules of evidence for the purpose of conviction. 3 Dall. 390. The phrase, as used in the constitution, only applies to penal and criminal laws which inflict forfeitures or punishments, not to civil proceedings. 8 Pet. 110. FALSE IMPRISONMENT signifies a violent trespass, committed against a person, by arresting and imprisoning him without just cause, contrary to law; or where a man is unlawfully detained in prison, without legal process; or kept longer in hold than he ought; or if he be any way unlawfully detained. Oo. Litt. 124. Selw. Nisi Prius 814. Whart. Law Dict. 295. FEE SIMPLE is an estate of inherit- ance, whereby a person is seised of lands, tenements or hereditaments, to hold to him and his heirs for ever, generally, absolutely and simply. 2 Bl. Com. 103. Whart. Law Dict. 297. FELO DE SE. When a person with 73 deliberation and direct purpose kills him- self by hanging, drowning, shooting, stabbing, &c., this is felo de se, if he be of the age of discretion, z. e. fourteen, and compos mentis [of sound mind]. 38 Inst. 44. Dalt. ch. 145. Whart. Law Dict. 300. FELONY, in the general acceptation of our English law, comprises every spe- cies of crime which occasioned, at common law, the forfeiture of lands or goods. This most frequently happens in those crimes for which a capital punishment either is, or was, liable to be inflicted; for those felonies which are called clergyable, or to which the benefit of clergy extends, were anciently punished with death in all lay or unlearned offenders ; though now, by the statute-law, that punishment is, for the first offence, universally remitted. Treason itself, says Sir Edward Coke, was anciently comprised under the name of felony. All treasons, therefore, strictly speaking, are felonies; though all felo- mies are not treason ; and to this also we may add, not only all offences, now capi- tal, are, in some degree or other felony ; but that this is likewise the case with some other offences which are not punished with death, as suicide, where the party is already dead; homicide, by chance-med- ley, or in self-defence; and petit larceny or pilfering ; all which are, strictly speak- ing, felonies ; as they subject the commit- ters of them to forfeitures. So that, upon the whole, the only adequate definition of felony seems to be, that which is before laid down, vig., an offence which occa- sions a total forfeiture of either lands or goods, or both, at the common law, and to which capital, or other punishment may be superadded, according to the de- grees of guilt. 3 Inst. 15. 4 Bl. Com 94. Whart. Law Dict. 300. FEMES COVERT [married women], and infants [under twenty-one years of age], ought to find bail, and not be bound themselves: A feme covert cannot contract and be sued as a feme sole [single woman], even though she be living apart from her hus- band, having a separate maintenance secured to her by deed. 7 T. R. 545. Who are deemed feme sole traders in Pennsylvania, see Purd. 801. FORCIBLE ENTRY AND DE. TAINER. The first is a violent actual entry into houses or lands; and forcible detainer is a withholding, by violence, 74 and with strong hand, of the possession of land, &c., whereby, he who hath a right of entry is barred or hindered. Lamb. 135. Cromp. 75. Keilw. 22. Whart. Law Dict. 311. See “ Forcible Entry and Detainer.” FORGERY signifies where a person fraudulently makes and publishes false writings, to the prejudice of another man’s right ; and forgery is either at common law or by statute. Forgery by the com- mon law, extends to false and fraudulent making or altering of a deed or writing, whether it be matter of record, or any other writing, deed orwill. 3 Inst. 169. 1 Rol. Abr. 65. And Blackstone detines it to be “the fraudulent making or alteration of a writing to the prejudice of another man’s right.” 4 Com. 245. Whart. Law Dict. 314. FRAUD is defined to be a decezt in grants and conveyances of lands and bar- gains, and sales of goods, &c., to the damage of another person. Bacon’s Abr. 3. Whart. Law. Dict. 317. FUGITIVE FROM JUSTICE. One who steals goods in another state and brings them with him into Pennsylvania cannot be indicted here for the felony. He is to be considered and treated as a fugitive from justice. 5 Binn. 617. FULL AGE. In law, the full age of males and females is twenty-one years. 1 Bl. Com. 462. GAOLER. A gaoler [jailer] is the servant of the sheriff, and the master or governor of a prison ; and, as sucb, is con- sidered as an officer relating to the admin- istration of justice. 3 Rol. Abr. 76. 1 Bl. Com. 845. Whart. Law Dict. 326. HOMICIDE, is the destroying the life of any human creature; it is of three kinds, viz., justifiable, eacusable and fe- donious. The first has no share of guilt at all; the second very little; but the third is the highest against the law of nature that man is capable of committing. First, justifiable homicide is of divers kinds. 1. Such as is owing to some una- voidable necessity, without any will, inten- tion or desire, and without any inad- vertence or negligence in the party killing; and therefore, without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the exe- cution of public justice, to put a male- factor to death, who hath forfeited his life, by the laws and verdict of his country, Again, in some cases, homicide is justifi- MAGISTRATE’S VOCABULARY. able, rather by the permission, than by the absolute command, of the law, either for the advancement of public justice, which, without such indemnification, would never be carried on with proper vigor; or in such instances where it is committed for the prevention of some atrocious crime which cannot otherwise be avoided. Homicides committed for the advancement of public justice are, 1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him, 2. If an officer, or any private person, attempts to take a man charged with fel- ony, and is resisted, and in the endeavor to take him kills him. 3. In ease of a riot, or rebellious assembly, the officers endeavoring to disperse the mob are jus- tifiable in killing them, both at common law and by the riot ‘act. 1 Geo. I., ¢. 5, § 4. Where the prisoners in a jail, assault the jailer, or officer, and he, in his defence, kills any of them, it is justifi- able, for the sake of preventing an escape. 5. If trespassers in forests, parks, chases or warrens will not surrender themselves to the keepers, they may be slain by vir- tue of the Stat. 21 Edw. I., de malefac- toribus in pacis, and 3 & 4W.&M.ec. 10. 6. If the champions, in a trial by battle, killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, ‘who was thereby presumed to have de- cided in favor of the truth. In the next place, such homicide, as is committed for the prevention of any forcible and atro- cious crime, is justifiable by the law of nature, and also by the law of England [and of Pennsylvania]. If any person attempts a robbery or murder of another, or attempts to break open a house, én the night time, which extends also to an attempt to burn it, and shall be killed in such attempt, the slayer shall be acquit- ted and discharged, &c. Secondly, excusable homicide is of two sorts, either per infortuntum, by misad- venture, or se defendendo, upon a princi- ple of self-preservation. 1. Homicide per infortunium, or misadventure, is where a man doing alawful act, without any inten- tion of hurt, unfortunately kills another; as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by, or where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man, for the act is lawful, and the effect is merely accidental, LAW TERMS AND PHRASES. &e. 2. Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable, rather than justifiable, by the English [and Pennsylvania] law. This species of self-defence must be distin- guished from that just now mentioned as calculated to hinder the perpetration of a capital crime, which is not only a matter of excuse, but of justification. But the self-defence which we are now speaking of is that whereby a man may protect himself from an assault, or the like, in the case of sudden brawl or quarrel, by kill- ing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chaud-medley. 3. Felonious homicide is an act of a very different nature from the former, being the kill- ing of a human creature, of any age, or sex, without justification or excuse. This may be done either by killing one’s self, or another man. Self-murder, the law of England hath ranked among the highest crimes, making it a peculiar species of felony ; a felony committed on one’s self. And this admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder. A felo de se, therefore, is he, who delib- erately puts an end to his own existence, or commits any unlawful, malicious act, the consequence of which is his own death ; as, if attempting to kill another, he runs upon his antagonist’s sword; or shooting at another, the gun bursts, and he kills himself. The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt which divide the offence into manslaughter and murder. The difference between which consists in this, that manslaughter arises from the sudden heat of the passions, murder from the wickedness of the heart. Manslaugh- ter is, therefore, thus defined, the unlawful killing of another without malice, either express or implied ; which may be either voluntary, upon a sudden heat, or invo- luntary, but in the commission of some unlawful act. As to the first, or voluntary branch: if upon a sudden quarrel two persons fight and one of them kills the other, this is manslaughter ; and so it is if they, upon such an occasion, go out and fight in a field, for this is one con- tinued act of passion. So also, if a man be greatly provoked, as by pulling his nose, or other great indignity, and imme- 75 diately kills the aggressor, though this is not excusable, se defenilendo, since there is no absolute necessity for doing it to preserve himself, yet neither is it murder, for there is no previous malice, but it is manslaughter. But in this, and in every other case of homicide upon provocation, if there be a sufficient cooling time for passion to subside and reason to interpose, and the person, so provoked, afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to’ murder, &. The second branch, or involuntary manslaughter, dif- fers also from homicide excusable by mis- adventure, in this; that misadventure always happens in consequence of a lawful act ; but this species of manslaughter in consequence of an unlawful one. As, if two persons play at sword and buckler, unless by the king’s command, and one of them kills the other, this is manslaughter, because the original act was unlawful; but it is not murder, for the one had no intent to do the other any personal mischief, &c. 1 Hale H. P. C.494,5,6. 1 Hawk. P. C. c. 28, c. 65. Fost. 296. 3 Inst. 56. 1 BI. Com. 176, e¢ seg. Whart, Law Dict. 353. HOUSEHOLDER, the occupier of a house. Cowel. Blount. Whart. Law Dict. 356. & IGNORAMUS, the return of the grand jury on a bill of indictment, when they reject the evidence as too weak or defective to put the party on trial. 3 Inst. 30. Whart. Law Dict. 364. IMPANNEL signifies the writing and entering into a parchment schedule, by the sheriff, the names of ajury summoned to appear for the performance of such public service as juries are employed in. Cowel. Blount. Whart. Law Dict. 365. IMPEACHMENT is the accusation and prosecution of a person in parliament {or the general assembly] for treason or other crime and misdemeanor. 4 Bl. Com 259. Whart. Law Dict. 366. IMPRISONMENT is the restraint of a man’s liberty, under the custody of an- other, and extends not only to a jail. but to a house, stocks, or where a man is held in the street, &c.; for, in all these cases, the party, so restrained, is said to be a prisoner, 80 long as he hath not his liberty freely to go about his business as at other times. Co. Litt. 253. Whart. Law Dict 368. 76 MAGISTRATE’S INCEST is the carnal knowledge of a person within the Levitical degree of kindred. 4 Bl. Com. 64. Whart. Law Dict. 369. INDICTED, When the grand jury have found a true bill against any one accused by bill preferred to them at the king’s suit, for some indictable offence, he is said to be indicted thereof. Cowel. Whart. Law Dict. 370. INDICTMENT is a bill of complaint, or accusation, drawn up in form of law, and exhibited for some offence, criminal or penal, to a grand jury; upon whose oaths it may be found to be true. Lamb. lib. 4, cap. 5. Whart. Law Dict. 370. INFORMER, a person who informs against, or presents in the king’s courts [courts of the commonwealth], for an offence against any law or penal statute. 2 Bl. Com. 437. Whart. Law Dict. 376. INVENTORY is a list or schedule, containing a true description of al the goods and chattels of a deceased person, at the time of his death, with their value appraised by indifferent persons. Termes de la Ley 428. Whart. Law Dict. 396. LAND legally comprehends all things of a permanent, substantial nature, being a word of a very extensive signification ; indeed, Sir Edward Coke says, ‘‘it com- prehendeth any ground, soil or earth whatsoever, as arable meadows, pastures, woods, moors, waters, marshes, furzes and heath. It legally includeth also all castles, houses and other buildings; for they consist (saith he) of two things, land which is the foundation, and struc- ture thereupon; so that if I convey the land or ground, the structure or building passeth therewith. Co. Litt, 4. 2 Bl. Com. 16,17. Whart. Law Dict. 420. LANDLORD is he of whom lands or tenements are holden. Co. Litt. 57, 205. Whart. Law Dict. 421. LAW, in its most general and compre- hensive sense, signifies a rule of action ; and is applied indiscriminately toall kinds of action, whether animate or inanimate, rational or irrational. Thus, we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of ac- tion which is prescribed by some superior, and which the infertor is bound to obey. Municipal or civil law, is the rule by which particular districts, communitics or VOCABULARY. nations, are governed ; being thus defined by Justinian, “ Jus civile est quod quis- que sibi populus constituit.” [‘ The civil law is that which every nation has estab- lished for its own government.” ] Muni cipal law, thus understood, is properly defined to be, a rule of civil conduct pre- scribed by the supreme power in a state, commanding what is right, and probibit- ing what is wrong. 1 Bl. Com. 38. Co. Litt. 11. 1 Bl. Com. 43. The municipal law of England, or the rule of civil conduct prescribed to the in- habitants of this kingdom, may, with suf- ficient propriety, says Sir William Black- stone, be divided into two kinds: the lex non scripta, the unwritten or common law; and the /ex scripta, the written or statute law. «The lex non scripta, or unwritten law, includes not only general customs, o1 the common law properly so called, but also the particular customs of certain parts of the kingdom, and likewise those pur- ticular laws that are, by custom, observed only in certain courts and jurisdictions. 1 Bl. Com. 63. The leges scriptz, or tha written laws of the kingdom, consist of statutes, acts or edicts, made by the king’s majesty, by and with the advice and con- sent of the lords spiritual and temporal, and commons, in parliament assembled. Ibid. 84. Hale’s Com. Law, ec. 1, 2. LEASE. A lease is properly a con- veyance of any lands or tenements (usu- ally in consideration of rent or other ap- nual recompense), made for life, for years, or at will, but always for a dess time than the lessor hath in the premises ; for if it be for the whole interest it is more pro- perly an assignment than a lease. 2 BI. Com. 317. Whart. Law Dict. 428. LIBEL signifies literally a little book A libel is defined to be a malicious defa- mation of any person, especially a magis- trate, expressed either in printing or writ- ing, or by signs, pictures, &c., tending either to blacken the memory of one whe is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt or ridicule. 2 Hawk. 192. Selw. N. P. 931. Whart. Law Dict. 440. LIEN isa specific charge on real or personal property. A read lien is a judg- ment, statute, recognisance, or an original claim against an heir, which binds the land; a personal lien is a bond, covenant, or contract. Termes de la Ley 416, There are two species of liens known to the law,. LAW TERMS AND PHRASES. namely, particular hens and general liens. Particular liens are where persons claim a right to retain goods in respect of labor or money expended on such goods. Cen-° eral liens are claimed in respect of a gen- eral balance of account, and are founded in custom only. Selw. Nisi Prius 737 n., 1210. Whart. Law Diet. 443. In Penn- by different acts of assembly, to particu- sylvania there are a variety of liens given lar descriptions of persons and for special purposes. MALICE, when spoken of in relation to the crime of murder, is not to be under- stood in so restrained a sense as to signify onlya spite or malevolence to the deceased person in particular, but more largely, an evil design in general, the dictate of a wicked, depraved and malignant heart. It is of two kinds: express or implied. Malice express is when one, with a sedate, deliberate mind, doth kill another ; which formed design is evidenced by external circumstances, discovering that inward intention, as lying in wait, antecedent menaces, former grudges and concerted schemes to do him some bodily harm. Malice implied is various: as when one voluntarily kills another, without any pro- vocation; or when one wilfully poisons another; in such like cases, the law implies matice, though no particular enmity can be proved. 4 Bl. Com. 198. Whart. Law Dict. 466, See “ Homi- cide.” MANSLAUGHTER is such a killing of a man as happens either on a sudden quarrel, or in the commission of an unlaw- ful act, without any deliberate intention of doing any mischief at all. There is no difference between murder and man- slaughter, but that murder is upon malice aforethought, and manslaughter upon a sudden occasion. As if two meet to- gether, and, striving for the wall, the one kills the other, this is manslaughter and felony. And so itis, if they had, upon that sudden occasion, gone into the field and fought, and the one had killed the other, this had been but manslaughter and no murder; because all that followed was but a continuance of the first sudden occasion, and the blood was never cooled till the blow was given. 3 Inst. 55. Whart. Law Dict. 469. See“ Homicide.” MESNE PROCESS is sometimes put in contradistinction to original process, and, in that sense, it signifies an interme- diate process, which issues, pending the 77 f suit, upon some collateral interlocutory matter, as to summon juries, witnesses, and the like ; sometimes, it is put in con- tradistinction to final process or proeess of execution ; and then itsignifies all such process as intervenes between the begin- ning and end of a suit. 3 BI. Com. 279. Whart. Law Dict. 487. MESSUAGE is, properly, a dwelling- house with some adjacent land assigned to the use thereof. Plowd. 169, 170. Co. Litt. 5 a. Whart. Law Dict. 487. MISDEMEANOR. This word, in the laws of England, signifies a crime. Every crime is a misdemeanor, yet the law hath made a distinction between crimes of a higher and a lower nature; the latter heing denominated misdemean- ors, the former, felonies, &c. A crime, or misdemeanor, is, therefore, an act committed, or omitted, in violation of a public law, either forbidding or com- manding it. This general definition com- prehends both crimes and misdemeanors, which, properly speaking, are mere syn- onymous terms, though, in common usage, the word ‘‘crimes” is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults and omissions, of less consequence, are comprised under the gentle name of misdemeanors. 4 Bl. Com. 3, 5. Whart. Law Dict. 491. ! MISNOMER is the using one name for another—a misnaming. 11 Co. 20, 21. Ld. Raym. 304. Hob. 125. Whart. Law Dict. 492. MITTIMUS is a precept in writing, under the hand and seal of a justice of the peace, directed to the jailer, for the receiving and safe-keeping of an offender, until he is delivered by law. 2 Inst. 590. Whart. Law Dict, 495. MOLITER MANUS IMPOSUIT, se- veral justifications in trespass, 7. e., actions of assault, are called by this name, from the words “gently laid his hands upon him” used in the plea; as where the de- fendant justifies an assault by showing’ that the plaintiff was unlawfully in the bouse of the defendant, making a disturb- ance, and being requested to cease such disturbance, and depart, he refused, and continued therein, making such disturb- ance ; he, the defendant, “ gently laid his hands” on the plaintiff and removed him out of the house. So, in various other instances, as for separating two persong fighting, in order to preserve the peace; 78 so in the legal exercise of an office, &c. 3 Bl. Com. 121. Whart. Law Dict. 496. MORTGAGE signifies a pawn of land or tenement, or anything immovable, laid or bound, for money borrowed, to be the creditor’s for ever, if the money be not paid at the day agreed upon; and the creditor holding land and tenements upon this bargain is called tenant in mortgage. He who maketh a pledge or pawn of this sort, is called the mortgagor, and he to whom it is made, the mortgagee. Glan- vil. Cowel. 2 Bl. Com. 156. Whart. Law Dict. 501. MOVABLES are all such things per- sonal which may atvend a man’s person wherever he goes; in contradistinction to things ¢mmovable, as houses and lands. 2 Bl. Com. 384. Whart. Law Dict. 504. NOLLE PROSEQUL is where a plain- tiff, in any action, will proceed no further: and may be before or after verdict; though it is usually before ; and it is then stronger against the plaintiff than a non- suit, which is only a default in appearance ; but this is a voluntary acknowledgment that he hath no cause of action. 2 Lill. 218. 8 Co. 58. Whart. Law Dict. 519. NOT GUILTY. is the general issue or plea of the defendant in any action for a tort, wrong or injury; such as trespass and the like. Palm. 393. Whart. Law Dict. 525. NUDUM PACTUM is a bare, naked contract, without any consideration had for the same ; as where there is an agree- ment to do or pay anything, on one side, without any compensation on the other ; this is a nudum pactum or nude contract, void in law. Termes de la Ley 477. 2 Bl. Com. 445. Whart. Law Dict. 529. NUISANCE signifies, generally, any- thing that worketh hurt, inconvenience or damage to the property or person of an- other. And nuisances are of two kinds, public or common nuisances, which affect the public, and are an annoyance to ail the king’s subjects [people of the com- monwealth], and private nuisances which may be defined to be ‘‘ anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.” 3 Bl. Com. 216. Whart. Law Dict. 529. OATEL is a solemn calling or appealing to Almighty God, as a witness of the truth of what we affirm or deny, in the presence of those who are duly authorized MAGISTRATE’S VOCABULARY. to administer it to us; and it is called corporal, because, in taking it, the party is obliged to lay his hands on and kiss the ‘Holy Gospel. 3 Inst. 165. Whart. Law Dict. 532. OFFENCE, an act committed against a law, or omitted where the law requires it, and punishable by it. West Symb. Offences are of two sorts, capital or not capital ; capital offences are those for which the offender shall lose his life, such as high treason, petit treason and felony ; offences not capital, include the remain- ing part of‘criminal offences or pleas of the crown, and come under the denomi- nation of misdemeanors. 2 Hawk. P.O. ce. 126, § 134. Whart. Law Dict. 533. OFFICE signifies that function, by vir- tue whereof a man hath some employment in the affairs of another ; as of the king [or the commonwealth], or of another person. Cowel. Offices are a right to exercise a public or private employment, and to take the fees and emoluments there- unto belonging. 2 Bl. Com. 36. Whart. Law Dict. 537. ONUS PROBANDI. The burden of proving anything. Stat. 14 Car. IL., ¢. 11. Whart. Law Dict. 540. OVERT MARKET. An open mar- ket. 2 Bl. Com. 449. [There is no overt market in Pennsylvania. 5 S. & R. 130. 12 Penn. St. 230.] O YES, corrupted from the French oyez, HEAR YE, is an expression used by the crier of a court, in order to enjoin silence, when any proclamation is made. 4 Bl. Com. 340. Whart. Law Dict. 546. PARENT. A father or mother; but generally applied to the father. Wood’s Inst. 63. PARTIES are those who are named in a deed, or fine, as parties to it: as those who levy the fine, and to whom the fine is levied ; so, they who make any deed, and they to whom it is made, are called pees to the deed. Cowel. Whart. aw Dict. 561. PAYMENT OF MONEY INTO COURT is a species uf confession of the right of action. It is, for the most part, necessary upon pleading a tender, and is, itself, a kind of tender to the plaintiff, by paying into the hands of the proper officer of the court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to LAW TERMS AND PHRASES. 79 prevent the expense of any further pro- ceedings. 3 Bl. Com.304. Whart. Law Dict. 567. PENALTY is a forfeiture inflicted for not complying with the regulation of certain acts of parliament [of the general assembly]. A penalty is also annexed to secure the performance of certain cove- nants in a deed, articles of agreement, &c. In a bond also for payment of money, it 1s usual to annex the penalty in double the amount of the obligation. 3 Bl. Com. 434. Whart. Law Dict, 570. PERSONS are divided by law into either natural persons or aréificial. Nat- ural persons are such as the God of Nature formed us: artificial are such as are created and devised by human laws,’ for the purposes of society and govern- ment; which are called corporations, or bodies politic. 1 Bl. Com. 122, 467. Whart. Law Dict. 576. POLICE is applied to the internal regulations of large cities, particularly of the metropolis. 4 Bl. Com. 162. Whart. Law Dict. 590. POSSE COMITATUS. For keeping the peace, and pursuing felons, the sheriff may command all the people of his county to attend him; which is called posse comitatus. 1 Bl. Com. 343. Whart. Law Dict. 594. POSSESSION is two-fold, actual, and in law. Actual possession is when a man actually enters into lands and tenements to him descended. Possession in law is when the lands or tenements are de- scended to 2 man, and he has not as yét actually entered into them. Staundf. 198. Whart. Law Dict. 595. PRECEDENTS are authorities to fol- low in determinations, in courts of jus- tice. 400.93. Oro. Eliz. 65. 2 Lill. Abr. 844. Whart. Law Dict. 602. There are also precedents or forms for convey- ances and pleadings in the courts of law, which are in general use amongst prac- titioners. PREMISKHS, in a deed, are those parts in the beginning thereof, wherein are set forth the names of the parties, with their titles and additions, and wherein are re- cited such deeds, agreements or matters of fact, as are necessary to explain the reasons upon which the present transac- tion is founded. And herein also is set down the consideration upon which the deed is made, and the certainty of the thing granted. 2 Bl. Com. 298. Whart. Law Dict. 603. PRESENTMENT OF OFFENCES. A presentment, generally taken, is a very comprehensive term, including not only presentment, properly so called, but also inquisitions of office, and indictments by a grand jury. But a presentment, properly speaking, is the notice taken by a grand jury, of any offence, from their own knowledge or observation (Lamb. Hirenarch. 1. 4, c. 5), without any bill of indictment laid before them at the suit of the king [the com- monwealth]; as the presentment of a nuisance, a libel, and the like; upon which the officer of the court [the dis- trict-attorney] must afterwards frame an indictment before the party presented can be put to answerit. 2 Inst.739. Whart. Law Dict. 605. PRISON. A place of confinement for the safe custody of persons, in order to their answering any action, or civil or criminal prosecution; and upon conviction of a criminal offence, a prison is, in innu- merable instances, by statute, appointed to be a place of punishment, as well as safe custody. Termes de la Ley 460. Whart. Law Dict. 609. PROCESS, in czvil cnuses, is the means of compelling a defendant to appear in court. This is sometimes called original process, being founded upon the original writ, and also to distinguish it from mesne or intermediate process, which issues pending the suit, upon some collateral, interlocutory matter; as to summon juries, witnesses, and the like. Finch, L. 436. Whart. Law Dict. 612. PROMISSORY NOTES, or notes of hand, are a plain and direct engagement, in writing, to pay a sum specified at the time therein limited, to a person therein named, or sometimes to his order, or often to the bearer at large. 2 Bl. Com. 467. Whart. Law Dict. 615. QUANTUM MERUIT (that is, as much as he has deserved), is an action ou the case grounded upon the promise of another, to pay him for doing anything so much as. he should deserve or merit. 3 Bl. Com. 163. Whart. Law Dict. 675. QUANTUM VALEBAT is where goods and wares, sold or delivered by tradesman, at no certain price, or to be paid for them as much as they are worth, 80 MAGISTRATE’S in general, then quantum valebat lies. Ibid. QUID PRO QUO signifieth some- thing for somewhat ; and is used in the law for the giving one thing of value for another thing, being the mutual consider- ation and performance of both parties to a contract. Kitch, 184. Whart. Law Dict. 631. RECEIPTS are acknowledgments in writing of having received a sum of mo- ney, or other value. A receipt is either a voucher for an obligation discharged, or one incurred. Whart. Law Dict. 640. A RECOGNISANCK is an obligation of record which a man enters into before some court of record, or magistrate duly authorized (Bac. Abr. 24), with condi- tion to do some particular act; as to ap- pear at the assizes [quarter sessions], to keep the peace, to pay a debt, or the like. Tt is, in most respects, like another bond, the difference being chiefly this, that the bond is the creation of a fresh debt, or obligation de novo ; the recognisance is an acknowledgment of a former debt upon record; the form' whereof is, ‘‘that A. B. doth acknowledge to owe to our lord the king [the commonwealth], to the plaintiff, to C. D., or the like, the sum of ten pounds,” with condition to be void on performance of the thing stipulated ; in which case the king [the common- wealth], the plaintiff, C. D., &c., is called the cognisee, as he that enters into the recognisance is called the cognisor. 2 Bl. Com. 340. Whart. Law Dict. 641. RECOGNISEE, He to whom one is bound in a recognisance. Whart. Law Dict. 641. RECOGNISOR. He who enters into the recognisance. Jacob. Whart. Law Dict. 641. RECORD is a memorial or remem- brance, in rolls of parchment, of the proceedings and acts of’ a court of justice, which hath power to hold plea, according to the course of the common law, of real or mixed actions, or of actions quare vi et armis, or of personal actions, whereof the debt or damage amounts to 40s. [shil- lings], or above: which are called courts of record, and are created by act of par- liament, letters patent, or prescription. 1 Inst. 260. In legal acceptation, however, records are restrained to the rolls of such courts only as are courts of record, and not the rolls of inferior or other courts, VOCABULARY. which proceed, not according to the law and custom of England. Ibid. There are three kinds of records: viz. a judt- cial record, as an attainder, &e.; a min- isterial record, on oath, being an office or inquisition found; and a record made by conveyance and consent, as a fine, or a deed enrolled. 4 Co. 54. 2 Lill. 421. Whart. Law Dict. 641. REPLEVIN. The action of replevin is founded upon a distress taken wrovg- fully, and without sufficient cause ; being a re-delivery of the pledge, or thing taken in distress, to the owner, upon his giving security to try the right of the distress. and to restore it, if the right be adjudged against him; after which the distrainor -may keep it till tender made of sufficient amends; but must then re-deliver it to the owner. Co. Litt. 145. 8 Co. 147. 3 Bl. Com. 147. Whart. Law Dict. 654. REPORTS are a public relation of cases, judicially adjudged, in courts of justice, with the reasons, as delivered by the judges. Co. Litt. 293. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large on the record; the arguments on both sides, and the reasons the court gave for its judgment, taken down in short notes by persons present at the determination. 1 Bl. Com. 71. Whart. Law Dict. 656 RESCUE, or RESCOUS, is the tak- ing away, and setting at liberty, against law, any distress taken for rent, or ser- vices, or damage feasant ; but it more generally signifies the forcibly and know- ingly freeing another from an arrest, im- prisonment, or some legal commitment. Co. Litt. 160. Whart. Law Dict. 657-8. RETAINING FEE is a fee given to any serjeant or barrister, to retain him; that is, secure his services against the contrary party. Termes de la Ley 350. Whart, Law Dict. 663. RIOT. A riot seems to be a tumult uous disturbance of the peace by three persons, or more, assembling together, of their own authority, with an intent mu- tually to assist one another against any one who shall oppose them in the execu- tion of some enterprise of a private na- ture ; and afterwards, actually executing the same in a violent, turbulent manner, to the terror of the people, whether the act intended was, of itself, lawful or un- lawful. Hawk. P. ©. c. 65. 2 Clark 278. Whart. Law Dict. 669. LAW TERMS AND PHRASES. ROBBERY is a felony committed by a violent assault upon the person of an- other, by putting him in fear, and taking from his person his money, or other goods of any value whatever. 3 Inst. 68, c. 16. And this offence was called robbery, either because they bereaved the true man of some of his robes or garments ; or because his money or goods were taken out of some part of his garment or robe about his person. 3 Inst. c. 16. Whart. Law Dict. 670. ROUT is where three or more persons meet to do an unlawful act upon a com- mon quarrel, as forcibly breaking down fences, upon a right claimed of common, or of way, and make some advances to- wards it; and the difference between an unlawful assembly, a rout, and a riot, is this—an unlawful assembly is where three or more do assemble themselves together to do an unlawful act, as to pull down inclosures, to destroy a warren and the game therein, and depart without doing tt, or making any motion towards it. A rout is when, after their meeting, they move forward toward the execution of any such act, whether they put their intended purpose in execution or not. A riot is where they actually commit an unlawful act of violence, either with or without a common case of quarrel; as if they beat a man, or kill game in an- other man’s liberty, or do any other unlawful act, with force and violence, or even do a lawful act, as removing a nui- sance, in a violent and tumultuous man- ner. 4 Bl. Com. 140. Whart. Law Dict. 671. - See Riot. RULE OF COURT. An order made either between parties to a suit on motion, or to regulate the practice of the court. Jacob. SACRILEGEH is a church larceny, or a taking of things out of a holy place; as, where a person steals any vessels, ornaments or goods of the church: and it is said to be a robbery of God, at least what is sacred to his service. Cro. Car. 153. Whart. Law Dict. 672. SALE, or exchange, is a translation of property from one man to another; in consideration of some price or recom- pense in value; for there is no sale with- out a recompense ; there must be a guid ‘pro quo [something given for some other thing]. Noy’s Max. 42. SATISFACTION is the giving of 6 81 recompense for an injury done, or the payment of money due on bond, judg- ment, &. 2 Lill. Abr. 495. Whart. Law Dict. 675. SCHEDULE is a little roll, or long piece of paper or parchment, in which are contained particulars of goods in a house let by lease. Morg. Whart. Law Dict. 678. Schedules are likewise fre- quently annexed to answers in a court of equity, containing an account of estates, or effects, moneys, debts, &c., received, or disposed of, or expended by, the person putting in the answer ; and schedule is a term frequently used instead of inventory. Jacob. SCILICET, ss, an adverb, signifying —that is to say—or to wit:—often used in law proceedings. It is not a direct and separate clause, but it is rather to usher in the sentence of another. Hob. 171,172. Whart. Law Dict. 678. SCRIVENER is a person who re- ceives money to lay out upon security, and to hold the money in his hands un- til an opportunity offers of laying it out. 18 Eng. L. & Eq. 402. SET-OFF is when the defendant ac- knowledges the justice of the plaintiff’s demand on the one hand, but, on the other, sets up a demand of his own to counterbalance that of the plaintiff, either in the whole, or in part; as, if the plain- tiff sues for £10 due on a note of hand, the defendant may set off £9 due to him- self for merchandise sold to the plaintiff. 3 BI. Com. 304. Whart. Law Dict. 690. SIMPLE CONTRACT, debt by. Debts by simple contract are such, where the contract upon which the obligation arises is neither ascertained by matter of record nor yet by deed or special instrument, but by mere oral evidence, the most sim- ple of any, or by notes unsealed, which are capable of a more easy proof, and (therefore only) better than a verbal pro- mise. 3 Bl. Com. 465. Whart. Law Dict. 696. SINGLE BOND, or deed, whereby the obligor [he who gives the bond] obliges himself, his heirs, executors and administrators, to pay a certain sum of money to another at a day appointed. 2 Bl. Com. 340. Whart. Law Dict. 697. SLANDER is the defaming of a man in his reputation, profession or livelihood, as, if a man, maliciously and falsely utter any slander or false tale of another, which may either endanger him in law, by im- 82 peaching him of some heinous crime, as to say that a man hath poisoned another, or is perjured; or which may exclude him from society, as to charge him with an infectious disease; or which may im- pair or hurt his trade or livelihood, as to call a tradesman a bankrupt. 3 Bl. Com. 124. Whart. Law Dict. 699. STOPPAGE [N TRANSITU. When goods are consigned upon credit, by one merchant to another, it frequently happens that the consignee (he to whom the goods are consigned) becomes a bankrupt or in- solvent before the goods are delivered ; in such case the law permits the consignor (the person who sends the goods) to re- sume the possession of his goods. This right which the consignor has of resuming the possession of his goods, if the full price has not been paid, in the event of the insolvency of the consignee, is techni- cally termed the right of stopping in tran- situ, that is in its transmission. Selw. Nisi Prius 1106. Whart. Law Dict. 713. SUBPGNA ADTESTIFICANDUM, a writ of process to bring in witnesses to give their testimony in any cause, not only in chancery, but all other courts. 3 BI. Com. 369. Whart. Law Dict. 715. SUBPGINA DUCES TECUM. This is a writ or process of the same kind with the preceding subpena, including a clause of requisition for the witness to bring and produce books and papers in his hands, belonging to, or wherein, the par- ties are interested, or tending to elucidate the matter in question. 3 Bl. Com. 382. Whart. Law Dict. 715. SUMMARY CONVICTIONS are such as are directed by act of parliament [or act of assembly], for the conviction of offenders, and the inflicting of certain penalties created by. those acts of parlia- ment [or acts of assembly]. In these cases there is no intervention of a jury; but the party accused is acquitted or con- demned, by the suffrage of such person only as the statute hath appointed for his judge. 4 Bl. Com. 281-2. SUPERSEDEAS, a writ that lies ina great many cases; and signifies, in gen- eral, 2 command to stay some ordinary proceedings at law, on good cause shown, which ought otherwise to proceed. F.N. B. 236. Whart. Law Dict. 719. SURETY is the bail or pledge for any person, that he shall do or perform such a thing; as surety for the peace is the acknowledging a recognisance or bond to MAGISTRATE’S VOCABULARY. the king [the commonwealth], taken by a competent judge of record for keeping the king’s [the commonwealth’s] peace. Dalt. ec. 116. Whart. Law Dict. 720. SURETY OF THE GOOD BEHA. VIOR includes the peace, and he that is bound to good behavior, is therein also bound to the peace. Ibid. c. 122. 4 Bl Com. 255. Whart. Law Dict. 331, SURETY OF THE PEACE; so called, because the party that was in fear is thereby secured, This security con- sists in being bound with one or more sureties, in a recognisanee or obligation, to the king [the commonwealth], entered on record and taken in some court, or by some judicial officer, whereby the parties acknowledge themselves to be indebted to the crown [the commonwealth] in the sum required (for instance, £100), with condition to be void and of non-effect, if the party shall appear in court, on such a day, and, in the meantime, shall keep the peace, either generally towards the king [the commonwealth] and all his liege people, and particularly also with regard to the person who craves the secu- rity; or if it be for the good behavior, then on condition that he shall demean and behave himself well (or be of good behavior), either generally, or specially, for the time therein limited as for one or more years, or for life. 4 BI. Com. 252. TARIFF, the customs, or the duties, toll or tribute, payable upon merchandise exported and imported, are so called. 1 Bl. Com. 313. Whart. Law Dict. 731 TENANT signifies one that holds or possesses lands or tenements by any kind of right, either in fee, for life, years, cr at will. Kitch. fol. 160. Whart. Law Dict. 733. TENANTS IN COMMON are such as hold lands for life or years, by several titles, or by one title, and several rights l Inst 188. 2 Lill. Abr. 559. Whart. Law Dict. 732. TENDER is an offer to pay a debt, or perform a duty; or it is the offering of money, or any other thing, in satisfac- tion, or circumspectly to endeavor the performance of a thing. Termes de la Ley 522. Whart. Law Dict. 733. TERMS OF THE LAW are technical words, and terms of art particularly used in, and adapted to, the profession of the law. 2 Hawk. P. C. 239, THINGS are, by the law of England, LAW TERMS AND PHRASES. distributed into two kinds—things real, and things personal. Things real are such as are permanent, fixed and im- movable, which cannot be carried out of their place, as lands and tenements. Things personal are goods, money and all other movables, which may attend the owner’s person wherever he thinks proper to go. 2 Bl. Com. 16. Whart. Law Dict. 744. TRANSCRIPT is the copy of an original writing or deed, where it is written over again, or exemplified. Cowel. Whart. Law Dict. 748. TRESPASS is any transgression of the law, under treason, felony or misprision of either ; but it is most constantly used for that wrong or damage which is done by one private man to another, and it is of two sorts: 1. Trespuss general, other- wise called trespass vi et armis, and 2. Trespass special, or upon the case. Bro. Trespass. Bract. lib. 4. Selw. N. P. 1152. Trespass,in its largest and most ex- tensive sense, signifies any transgression or offence agaiust the law of nature, ofsociety, orof the country in which we live, whether itrelatesto a man’s person or his property. Therefore, beating another is trespass, for which an action of trespass vi et armis, in assault and battery, will lie; taking or detaining a man’s goods, are, respect- ively, trespasses, for which an action of trespass vt et armis, or on the case, in trover and conversion, is given by the law; so also, non-performance of promises or undertakings is a trespass upon which an action of trespass on the case, in assumpsit, is grounded ; and in general, any misfeasance, or act of one man, whereby another is injuriously treated, or damnified, is a transgression or trespass, in its largest sense. 3 BI. Com. 208-9. In a limited and confined sense, it signifies no more than an entry on another man’s goods, without a lawful authority, and doing some damage, however inconsider- able, to his real property. 8 Bl. Com. 209. Whart. Law Dict. 751. TRIAL is the examination of a cause, civil or criminal, before a judge who has jurisdiction of it, according to the laws of the land ; it is the trial and exam- ination of the point in issue, and of the question between the parties, whereupon the judgment may be given. 4 Inst. 124. Finch 36. Whart Law Dict. 751. TROVER is an action which a man hath against one, that having found any 83 of his goods, refuseth to deliver them up on demand: or, if another hath in his possession my goods, by delivery to him, or otherwise, and he sells or makes use of them, without my consent, this is a conversion for which ¢trover lies; so if he doth not actually convert them, but doth not deliver them to me on demand. 2 Lill. Abr. 618. Selw. N. P. 1190. Whart. Law Dict. 752. UNLAWFUL ASSEMBLY is where three or more persons assemble together, with intent, mutually, to assist each other in the execution of some enterprise of a private nature with force or violence. J Hawk. P. C. 155. Whart. Law Dict. 757. See Riot. USURY is the interest or profit ex- acted for a loan beyond what is allowed by statute. 4 Bl. Com. 453. Whart. Law Dict. 763. : VENDOR AND VENDEE. Vendor is a person who sells anything, and ven- dee the person to whom it is sold. 21 Vin. Abr. Whart. Law Dict. 767. VERDICT is the answer of a jury given to the court, concerning the matter of fact, in any cause committed to their trial, wherein every one of the twelve jurors must agree, or it cannot be a ver- dict. Co. Litt. 226. And a verdict is twofold, general or special. A general verdict is that which is given, or brought into the court, in like general terms to the general issue; as in an action of disseisin the defendant pleadeth no wrong, no dis- seisin, then the issue is general, whether the fact be wrong or not, which being committed to the jury, they, upon con- sideration of the evidence, come in and say, either for the plaintiff, that it is a wrong and disseisin ; or, for the defend- ant, that itis no wrong. A special verdict is when they say, at large, that such a thing, and such a thing, they find to be done by the defendant or tenant, so de- claring the cause of the fact, as in their opinion it is proved; and, as to the law upon the fact, they pray the judgment of the court ; and this special verdict, if it contain any ample declaration of the cause from the beginning to the end, is also called a verdict at large. Oo. Litt. 128. Whart. Law Dict. 768. VI ET ARMIS are words used in in- dictments to express the charge of a forcible and violent committing any crime 84 or trespass. 2 Hawk. P. 0.179. 1 Ibid. 150, 220. Whart. Law Dict. 770. VIVA VOCKH is where a witness is examined, personally, in open court, Cowel. Whart. Law Dict. 772. VOID and VOIDABLE. In the law some things are absolutely void, and some are voidable. A thing is void which is done against law at the very time of the doing of it, and it shall bind no person. But a thing which is only voidable and not void, will remain good until tt ts avoided, 2 Lill. Abr. 653. Whart. Law Dict. 772. VOLUNTARY OATH is where a man takes an oath in an extra-judicial matter of which the law takes no notice. 4 Bl. Com. 1387. Whart. Law Dict. 773. WARRANTY is a promise, or cove- nant, by deed, made by the bargainor, for himself and his heirs, to warrant or secure the bargainee, and his heirs, against all men, for the enjoying of the thing granted. Bract. lib. 2,5. West Symb. part 1. A warranty is either real or personal. A real warranty is a cove- nant real annexed to lands, whereby a man and his heirs are bound to warrant the same to some other and his heirs; and that they shall quietly hold and enjoy the lands, and upon voucher or by writ of warrantia chart, to yield other lands and tenements to the value of those that shall be evicted by elder title. And MAGISTRATE’S VOCABULARY. warranty being « covenant real, bindeth to yield lands in recompense. 1 Inst, 365, 384. Personal warranty is when it concerns goods and chattels, and it is created by implication ; for the purchaser of goods may have a satisfaction from the seller if he sells them as his own and the title proves deficient, although there be no express warranty to that purpose. Cro. Jac. 474. Whart. Law Dict. 776. WHITE-MEATS, are, milk, butter, cheese, eggs, and any composition of them, which formerly were forbidden in Lent, as well as flesh, until Henry VIII. published a proclamation allowing the eating of white-meats iu Lent, Anno 1548. Cowel. Blount. Whart. Law Dict. 780. WILL, oR LAST WILL AND TESTaA- MENT, is a solemn act or instrument, whereby a person declares his mind and intention, as to the disposal of his lands, goods or effects, and what he would have done after his death. Co. Litt. 111. And the common law calls that a will where dans or tenements are given; and where it concerns goods and chattels alone, it is termed a testament. Ibid. Whart. Law Dict. 781. WITNKSS is one that gives evidence in a cause; an indifferent person to each party, sworn to speak the truth, the whole truth, and nothing but the truth. 2 Lill. Abr 700. Whart. Law Dict. 787. TECHNICAL LAW TERMS, EXPLAINED. In the session of 1815-16, the Senate of Pennsylvania adopted the following resolution—‘‘ Resolved, That the table explanatory of sundry technical law terms, inserted immediately following the preface, in a treatise in possession of the Senate, entitled— A collection of all the public and permanent acts of Assembly of Ken- tucky, which are now iv force, &., &e., by Harry Goulmin, Secretary of the Com- monwealth of Kentucky,’ be printed in an appendix to the journal of the Senate.” From that “ explanatory table,” thus approved by our Senate, the following selec- tions are made. Action of detinue lies against one who detains and refuses to deliver things which were put into his hands to keep. Action of trover und conversion (from trouver, to find) lies against a person who having found another’s goods refuses to deliver them up on demand, but converts them to his own use. The fact of finding however, is immaterial; but the plaintiff, for form sake, must say that he lost the goods and that the defendant found them. Action popular, an action given to the people in general: as, where forfeitures are given at large to any person who will sue for the same. Sometimes one part is given to the com- monwealth or to some public use, and the other part to the informer or prosecutor, TECHNICAL LAW TERMS SXPLAINED., and then it is called a gui tam action, be- cause it is brought by a person gui tam— that is, who as well sues for the common- wealth as for himself. Ad quod damnum, is a writ directing the sheriff to inquire what damages will be sustained by certain acts. ‘Afidanit, an oath in writing, sworn before a person who has authority to take it. Affirm, to ratify or confirm a former judgment. Alimony, is that allowance which a married woman is entitled to upon any occasional separation from her husband. Alias, a second or another writ, which issues after a first has been sued out without effect. It is likewise used for otherwise called, when a person goes by more than one name. Alibi, in another place. Array, is the ranking or setting forth of ajury. To challenge the array of the panel is at once to except against all the persons arrayed or impannelled, on account of partiality, &c. Arrest of judgment—to move in arrest of judgment, is to show cause, why judg- ment should be stayed notwithstanding a verdict given. Arson is a malicious and intentional burning of another’s house, Assault, a violent injury offered to a man’s person, which may be committed by offering a blow. Assets (French assez, i. e. satis, enough) signifies good enough to discharge that burden which is cast upon the executor or heir in satisfying the debts and lega- cies of the testator or ancestor. Assumpsit is taken for a voluntary pro- mise, express or implied, by which a man assumes or takes upon him to perform or pay anything to another. Attach is to take or apprehend in obe- dience to a writ or precept. Attachment is an apprehension of a man by his body, or taking the possession of his goods, to bring him to answer the action of the plaintiff. Attaint is a writ that lieth in certain cases, after judgment against a jury that hath given a false verdict. Attainted is a word used particularly for such as are found guilty of some crime, and especially of treason or felony. Anciently a person attainted of high treason forfeited his lands, &c., his blood was corrupted, and he and his posterity rendered base. 85 Averment (from the French eet is an offer of the defendant to make good or justify an exception pleaded in abatement or bar of the plaintiff's action, and it signifies the act as well as the offer. Bailiwick (a word taken from the French, whose territory was divided into bailiwicks as that of England is into counties) is frequently used for county. Baron hath various significations. It is taken for a degree of nobility next to viscount. In ancient records, it includes all the nobility of Hngland. Formerly, likewise, all men were styled barons, Baron and Feme, husband and wife, who in law are one person, so that neither can be a witness for or against the other ; except in cases of high treason [or per- sonal injuries inflicted by the one upon the other]. Bigamy is having more than one hus- band or wife at the same time. Curtesy—where a man marries a wo- man seised of an estate of inheritance, and has by her issue, born alive, which is capable of inheriting her estate ; he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy. Coverture is the state and condition of a married woman. Capias ad respondendum is a writ to take the defendant and make him an- swer. Capias ad satisfaciendum (ca. sa.) is a writ of execution, commanding the sheriff to take the defendant’s body and keep him till he make satisfaction for the debt and damages. Caveat (let him take care) is a kind of process to stop the proving of a will, the granting of the administration, or the issuing of a patent for unappropriated land, &c. De bene esse—td take a thing de bene esse, is to accept it as well done for the present—but when it comes to be more fully examined or tried, to stand or fall according to the merit of the thing in its own nature. As, when a complainant’s witnesses are aged or sick, or going out of the state, so that there is danger of their testimony being lost, the court of chancery will order them to be ex- amined de bene esse, so as to be valid, if they cannot be examined afterwards— but if they live, or return after answer, those depositions are not to be of force, for the witness must be re-examined. De novo—anew—over again. Dedimus potestatum (we have given the 86 power) isa writ giving authority to ex- amine witnesses, &c. Extent signifies a writ or commission to the sheriff, for the valuing of lands or tenements. Fee simple. A tenant-in fee simple, is he that hath lands, tenements or heredit- aments, to hold to him and his heirs for ever, generally, absolutely and simply, without mentioning what heirs, but refer- ring that to his own pleasure or to the disposition of the law. Fee tail, or fee conditional, is a fee restrained to some particular heirs to the exclusion of others. Feme covert, a married woman. Feme sole, a single woman. Fieri facias [ fi. fa.] (literally, that you cause to be made) is a writ commanding the sheriff to levy the debt and damages recovered, out of the goods and chattels of the defendant. Garnishment (from garnier, to instruct or inform) is a warning given to one for his appearance. Garnishee is a third person or party in whose hands money is attached, and is so called, because he hath had garnish- ment or warning not to pay the money to the defendant, but to appear and answer to the plaintiff creditor’s suit. Habeas corpus (i. e. that you have the body), a writ so called from those words being used in it—directing that the body of him who is imprisoned be brought before the court or a judge thereof, with the cause of his detention. Hereditaments signify all such immov- able things as a man may have to him and his heirs, by way of inheritance. Homicide is the killing of a man. Hue and cry, is a pursuit of one who hath committed felony, from town to town, till he is taken ; ‘which all persons who are present where a felony is com- mitted, or a dangerous wound given, are bound to raise against the offenders. Injunction is a prohibition granted in divers cases to suspend further proceed- ings. Inquisition is a manner of proceeding by way of search or examination. Interlocutory order is that which de- cides not the cause, but only some inci- dental matter, which happens between the beginning and end of it. Joint-tenants are those that hold lands or tenements jointly by one title. Joinure is a settlement of lands and tenements made toa woman in considera- MAGISTRATE’S VOCABULARY. tion of marriage, or a covenant whereby the husband, or some friend of his, assur- eth them to her for life. Levant et couchant is a term used with respect to cattle which have been so long on the ground of another, that they have lain down and risen again to feed. Levuri facias isa writ for levying a sum of money on 4 man’s lands and tene- ments, goods and chattels, who has for- feited his recognisance. Mainpernors are those persons to whom a man is delivered out of custody or prison, or those becoming bound for his appearing. Mainprise is the taking of a person into frieudly custody, who otherwise might be committed to prison, upon secu- rity being given that he shall be forth- coming at the time and place appointed. Mandamus (i. e. we command) is a command issuing from a superior court of judicature, requiring them to do some particular thing therein specified, which appertains to their office and duty. Medietas lingue signifies a jury of which one-half consists of foreigners. [It is not allowed in Pennsylvania. ] Mittimus (i. e. we have sent) is the name of a precept from a justice to a jailer on sending an offender to him for safe-keeping, and likewise of a writ for sending records from one court to another. Mortgage is a pawn of lands or tene- ments, &c., to be the creditor’s for ever, if the money be not repaid on the day agreed. Mesne process is that which issues whilst a suit is depending, upon some interlocutory matter, as to summon juries, witnesses, &c. It also signifies such pro- cess as intervenes between the beginning and end of a suit. Ne exeat is a writ to restrain a person from going out of the state. Nihil dicit (i. e. he says nothing) is a failing by the defendant to answer to the plaintiff's plea by the day assigned. Nil debet is a plea to au action of debt, signifying he owes nothing. Nolle prosequi siguifies that the plain- tiff is unwilling to prosecute the suit. Non assumpsit is a plea in personal actions, denying that any promise was made. Non compos mentis is not being of a sound mind, memory and understanding. Non est culpabilis is a plea signifying that he is not guilty—that the fact charged is not true. LAW PHRASES, &&, TRANSLATED. Noun est factum is a plea in an action on a bond or deed, that it was not exe- cuted, Non est tnventus is the return of a sheriff on a writ, when the defendant was not found in his county. Nonsuit is the letting of a suit or action fall. Non sum informatus is the answer of an attorney when he ts not informed or instructed to say anything material in defence of his client. Nu! tiel record :—there is no such re- cord, Nuncupative will, a will by word of mouth, before a sufficient number of wit- nesses. Onus probandi :—the burden of prov- dng. Oyer and terminer is a commission to hear and determine all treasons, felonies, &e. : Posse comitatus, the power of the county, including all above the age of fifteen, who are able to travel. Pluries, a writ issued in the third place, after the two first have been diso- beyed. Posthumous is where a child is born after the death of his father. Procedendo is a writ sending a cause back again to an inferior court. Prochein ami :—the next friend. Quantum meruit (i. e. how much he hath deserved). It is an action of the vase, grounded on the promise of another to pay him for doing anything so much as he should deserve. Replevin is a remedy granted upon a 87 distress, being a re-deliverance of the thing distrained to the first possessor, on security or pledges, according to the English law, being given by him to try the right with the distrainor and to answer him in a court of law. Seisin signifies possession, and to seize ig to take possession. Subpena is a process to cause wit- nesses to appear and give testimony, under a penalty for disobedience. Subpoena duces tecum is a process to compel a witness to bring with him some writing or other evidence, necessary to be produced in the cause. Supersedeas is a writ for staying pro- ceedings at law, on good cause shown. Scire facias is a writ commanding the sheriff to cause it to Le made known to a defendant against whom judgment has been given, that he must appear on a certain day, and show cause why execu- tion ought not to issue. ' Testatum is a writ in personal actions, after the sheriff has certified that the defendant is not in the county, upon which this writ is sent into some other county where he is thought to be, or to have wherewith to satisfy. Test is a word used in the last part of writs wherein the date is contained. Venire is either a summons to cause the party to come and answer an indict- ment or presentment, or the process directed to the sheriff to cause a jury to appear. Voir dire—to speak the truth—to make true answer to such questions as the court shall propose. LAW PHRASES, ETC., TRANSLATED. THE following translations have been selected from “ Jones’ translation of all the Greek, Latin, Italian and French quotations which occur in Blackstone’s Commen- taries on the Laws of England, and also in the notes of the editions by Christian, Archbold and Williams :’’—they are, generally speaking, those which are in most common use. A fortiort, By a stronger reason. Ab initio, From the beginning. Ad valorem, According to the value. A prior(, Beforehand. A mensa et thoro, From bed and board. A vineulo matrimonii, From the bond of matrimony. Assumpsit, He undertook. Ad satisfaciendum, To satisfy. Animo furandi, With a design of 1‘ stealing them. Alias, As formerly. Bond fide, Actual, real, in good faith. Certiorart, To be certified of. Curia advisare vult, The court will consider it. Casus omissus, Au omitted case. Coram non judice, Before a judge nor having jurisdiction. ‘ Cepi corpus, I have taken the body. 88 ' Capias, That you take. Caveat, That he take care. Contra bonos mores, Against good morals. De facto, In fact. De novo, Anew. : Dedimus potestatum, We have empow- ered. De bonis non, Of the goods not admin- istered. Dernier resort, The last resort. Ex post facto, After the fact. Ex officio, In the course of duty; by virtue of his office. Esto perpetua, Mayest thou endure for ever. E contra, On the other hand. Enciente, Pregnant. Ex contractt, Arising from a contract. Ex delicto, Arising from offence or misdeed. Ex gratia, As matter of favor. Exoneretur, Let him be exonerated. Ex visitatione Dei, By the visitation of God. Fere nature, Of a wild nature. Fieri facias (Fi. fa.], That you cause to be made. Fas et nefas, Lawful and unlawful. Felo de se, A self-destroyer. Flagrante delicto, In open crime. Habeas corpus, That you have the body. In extremis, In his last moments. Jpso facto, By the fact itself. In loco parentis, In the place of a pa- rent. In infinitum, For ever. Inquisitio post mortem, An inquisition after death. Indebitatus assumpsit, Being indebted, he undertook. In nubibus, In the clouds, In pari passu, In an equal degree. In foro legis, Tn a court of law. In foro conscientiz, In the forum of conscience. In personam, In respect to the person. In rem, In respect to the thing. In toto, In the whole, entirely. Later alia, Among other things. Imperium in imperio, A government within a government. In futuro, At a future period. Instanter, Instantly. Jure divino, By divine right. Leges non scripte, Unwritten laws. Levari facias, That you cause to be levied. Malum in se, Crime in itself. MAGISTRATE’S VOCABULARY. Mala in se, Crimes in themselves. Mandamus, We command. Mutatis mutandis, The respective dif- ferences being allowed for, or being altered according to the circumstances of the case Malum prohibitum, Fault, because for- bidden. Meum et tuum, Mine and thine. Mittimus, We send or commit. Nudum pactum, A barren compact. Non compos mentis, Not in his right mind. Nam qui facit ‘per alium, facit per se, For he who does a thing by the agency of another, does it himself. Nolle prosequi, Do not prosecute. Nisi prius, Unless before. Nil debet, He owes nothing. Oyer and terminer, To hear and deter. mine. Pro and con, For and against. Pro bono publico, For the public good. Prima facie, On the first view. Pro forma, For form’s sake. Pro tanto, For so much. Pro tempore, For a time. Post vbit, After he dies. Pendente lite, Pending a suit. Petitio principiit, Begging the ques- tion. Puisne, Younger. Proprié manu, With his own hand. Pluries, As more than once. Quo ad hoc, As to this. Quo warranto, By what warrant. Quantum valebat, As much as it is worth, Supersedeas, That you forbear, a com- mand to stay or forbear doing that which ought not to be done, Se defendendo, In self-defence. Sub modo, In a certain degree. Scire facias, That you make known. Subpena ad testificandum, A subpena to give evidence. Subpeena duces tecum, You shall bring with you the papers mentioned in the subpoena. Teste, Witness. Viva voce, By word of mouth. Vi et armis, By force and arms. Vice versa, By converse position. Verbatim, Word for word. Venditioni exponas, That you expose for sale. Venire facias, That you cause to come. Vexata questio, A perplexed question. Virtute oficti sui, By virtue of his office. Vou popult, vow Dei, The voice of the people is the voice of God. THE MAGISTRATE’S DAILY COMPANION AND BUSINESS MAN’S LEGAL GUIDE. Abatement. I. Definition of a plea in abatement. parties. II. Abatement of the writ or return. VI. Pendency of former suit for the same IIT. Pleas to the jurisdiction. cause. IV. Disabilities of the parties. VII. Death of parties. V. Misnomer, misjoinder and non-joinder of VIII. When pleas in abatement to be filed. I. A PLEA IN ABATEMENT is one which shows some ground for abating the plaintiff's action, and makes prayer to that effect. II. There are some matters of abatement before a justice of the peace, which are not properly the subjects of a plea, but are to be taken advantage of by a defendant, on motion; thus, it is required that a summons in a civil action before a justice (except in the case of a non-resident defendant) be made returnable on a day certain, not more than eight nor less than five days after the date thereof; now, if a summons be issued returnable on a day more than eight or less than five days from its date, this is illegal; and the proper mode of taking advantage of it is, not by a plea in abatement, but by moving the justice to quash the writ, as one improvidently issued. So, the law requires that the summons be served on the defendant, in the par- ticular manner prescribed by the act of assembly, at least four days before the time of hearing; if the summons be served less than four days from the time when it is returnable, the course is, not to plead in abatement, nor to move to quash the writ, but to set aside the service thereof: And the same relief may be had, if the return show that the summons was not served in the mode prescribed by law. But this does not extend further than to set aside the return; the writ remains good, and the plaintiff may, at his election, either discontinue his suit, rule the constable to make a good return, issue an alias writ, or sue the constable for a false or insuffi- cient return.? An appearance before the justice, for the purpose of objecting to a return of the writ, is not a waiver of the defect.$ In deciding upon such motions as these, if the facts be found to correspoud with the statement made by the defendant, the objection should be sustained by the justice, and the summons, or service thereof, should be quashed, as the nature of the case may require. The rejection of such an application can only have the effect of subjecting the parties to costs and trouble, without bringing to issue the matter at variance between them. A writ of certiorari will remove the proceed- ings before a higher tribunal, and if any such defect appcar, they will be there reversed and set aside. TTI. Among pleas in abatement, are usually classed those to the jurisdiction; and such a plea should be carefully and deliberately considered by the justice ; 1 Steph. Plead. 47. Whart. Law Dict. 2. 2 4 Penn. St. 501. 8 (89). 1 90 ABATEMENT. for where there is an entire want of jurisdiction of the subject-matter, it is never too late to object to the jurisdiction.! If the justice have not jurisdiction, the common pleas has none on appeal? And this defect may be taken advantage of, even on a writ of error, in the supreme court. Want of jurisdiction may be shown by parol.* IV. Among the proper pleas in abatement, are those which go to the disability of the parties to sue or be sued. Thus, it is a good plea in abatement, that the plaintiff is a fictitious person ;® or, that he died before the commencement of the suit.® It could formerly be pleaded in abatement that the plaintiff was a married woman, but the act 8 June 1893, 22 3, 4, enacted that: “Hereafter a married woman may sue and be sued civilly in all respects and in any form of action and with the same effect and results and consequences as an unmarried person, but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect or recover her separate property whensoever he may have de- serted or separated himself from her without sufficient cause, or may have neglected or refused to support her, nor may he sue her, except in a proceeding for divorce, or in a proceeding to protect or recover his separate property whensvever she may have deserted him, or separated herself from him without sufficient cause, nor may she be arrested or imprisoned for her torts.’’ “Tn any proceeding brought by either under the provisions of section three to pro- tect or recover the separate property of either, both shail be fully competent witnesses, except that neither may testify to confidential communications made by one or the other, unless this privilege be waived upon the trial.’’? The infancy of the plaintiff may also be pleaded in abatement; for an infant can only sue by his next friend or guardian.® V. The misnomer of’ the plaintiff or defendant is properly matter of abatement; as is, also, the misjoinder or non-joinder of proper parties; but such a plea can now very seldom be made available to a defendant; since it has been provided by the act 4 May 1852, that in ‘‘all actions pending, or hereafter to be brought, in the several courts of this commonwealth, and in all cases of judgments entered by confession, the said courts shall have power, in any stage of the proceedings, to permit amendments, by changing or adding the name or names of any party, plaintiff or defendant, when- ever it shall appear to them that a mistake or omission has been made in the name or names of any such party.’’® And by act 12 April 1858, this is to be “ so construed. as to authorize the said courts, where by reason of there being too many persons in- cluded as plaintiffs or defendants, by mistake, as will prevent the cause from being tried on the merits, to permit an amendment, by striking out from the suit such persons as plaintiffs or defendants.’’ ”° Under these acts, both the christian and surname of a party may be amended.” And the christian name of a defendant, which was left blank in the original pro- cess, may be inserted.” In cases originating before justices of the peace, the courts have always exercised great liberality in adding names to the record, to obviate technical objections to the form in which the suit was brought.’® The statutes are confined, however, to cases of clear mistake, and will not be suffered to effect an entire change of the real parties to the suit.* If two parties be sued as copartners, and it appear that the contract was made with only one of the defendants, the name of the other may be stricken out, under the act of 1858."% Whenever the rights of a party are liable to be defeated by having joined too many plaintiffs and defendants, such an amendment is proper, and the fact of a mistake will be presumed.** The act 14 April 1851 requires all partnerships to be registered in 11 Ash. 168. 17T,R.151, ® Purd. 100. 2108. & R. 227. 10 Thid. 5 4 Binn, 219, 11:15 Penn. St. 21. 410 W. 123. 3 Y.279. 1 Pitts, 271. 12°14 Ibid. 129, 5 5 W. 423. 19 Johns. 308, See 60 Penn. 13 27 Ibid. 98, St. 436. 14 6 Ibid, 379, 61W. & 8. 438. 18 15 Leg. Int, 382, 7 Purd. 1303. 16 37 Penn. St. 130. 8 3 Penn.St.264. 7 Phila. 618. See 1M. 87. ABATEMENT. 91 the office of the prothonotary of the court of common pleas, and provides, that “in default or neglect of such partnership so to do, they shall not be permitted, in any suits or actions against them, in any court, or before any justice of the peace or alderman in this commonwealth, to plead any misnomer, or the omission of the name of any member of the partnership, or the inclusion of the names of persons not members of said partnership.”? VI. Another matter of abatement is the pendency of a former suit for the same cause of action.* Thus, the pendency of a domestic attachment issued by the same plaintiff against the same defendant, may be pleaded in abatement.* But the pendency of a former suit in a foreign country cannot be pleaded in abate- ment of a suit for the same cause here.t’ Nor can the pendency of a former suit in another state of the Union.® VII. The death of the parties to a personal action, is cause of abatement, at common law; but our statute gives full power to executors or administrators, to become parties, and to prosecute or defend actions pending at the time of the death of their testator or intestate, ‘‘where the cause of action doth by law survive to them,” and also to commence and prosecute all personal actions, except actions of slander, for libels, and for wrongs to the person.® Since the passage of this act, all personal actions survive, except actions for slander, libel, or wrongs to the person;’ and therefore, the action of trover sur- vives§ By act 15 April 1851, actions for injuries to the person by negligence or default, shall not abate by reason of the death of the plaintiff;® nor, by act 12 April 1869, shall actions of trespass to real or personal property.” The act of 5 May 1854 provides, that if the plaintiff shall die during the pen- dency of the suit, and no letters of administration or testamentary shall be taken out in this state, within one year after the suggestion of his death upon the record, it shall not be the duty of the defendant to raise an administrator, but the suit shall abate, and the prothonotary of the proper court shall make an entry accordingly ; notice, however, is required to be given to the parties entitled to administration, one month before such entry, of which affidavit must be made and filed.™ By act 22 March 1861, no action on any joint contract, note, debt or obligation shall abate, by reason of the death of one or more of the joint obligors, contractors, debtors or promisors, since the commencement of the suit; but the same shall be proceeded in to judgment and execution against the estate of the decedent, as though commenced against him alone.” Actions by or against executors, administrators or trustees do not abate by the death, dismissal, resignation or renunciation of one or more of them, pending the suit; but the survivors may prosecute the action, or their successors may be substi- tuted for that purpose.* An administrator sued as executor may plead the intestacy and granting letters of administration, in abatement." VIII. Pleas in abatement cannot be put in after pleas in bar, unless under special circumstances, of which the court must judge.® And a defendant cannot plead in abatement, on an appeal, having neglected to do so before the justice.® The defend- ant before a justice should put in his plea in abatement as soon as the plaintiff has stated his cause of action, and should not suffer a continuance to intervene. 1 Purd. 1646. See 3 Phila. 148; 1 W. N.C. 5. 9 Purd. 55. 23 R. 320. 0 Tbid. S1P. & W. 442. 1 Thid. 42 W. & 8.133,190, And see 8 W. N.C. 128. 1 Ibid. 5 44 Penn. St. 326. 45 Ibid. 488. 8 W.N.C. 38 Ibid. 54. 126. 14 8 Johns. 126. § Purd. 594, 1525S. & R. 537. 5 W. 373. 56 Penn. St. 110, 7 24 Penn. St. 122. 45 Ibid. 161. 8 4 Phila. 87. 16 4 W, 433. [ 92 ] Abduction. Aot 31 Maron 1860. Purd. 1014. Szor. 94, If any person shall, maliciously, either by force or fraud, lead, take or carry away, or decoy or entice away, any child, under the age of ten years, with the intent to deprive its parent or parents, or any other person having the lawful charge or care of such child, of the possession of such child, by concealing and detaining such child from such parent or parents, or other person or persons having the lawful charge or care of it, or with intent to steal any article of apparel or ornament, or other thing of value or use, upon or about the person of such child, to whomsoever such article may belong, or shall receive and harbor, with any such intent as aforesaid, any such child, knowing the same to have been so, by force or fraud, led, taken or carried, or decoyed or enticed away as aforesaid, every such per- son shall be guilty of a misdemeanor, and, upon conviction thereof, be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years: Provided always, That no person who shall have claimed to be the father of any illegitimate child, or to have any legal right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of getting possession of such child, out of the possession of the mother or other person having lawful charge thereof. Act 23 Fepruary 1875. Purd. 1015. Sor. 1. If any person shall, maliciously, either by force or fraud, lead, take or carry away, or decoy or entice away, any child, under the age of ten years, from its parent or parents, or any other person having the lawful charge or care of such child, or the possession of such child, with the intent to extort money, or any val- uable thing, from the parent or any other person, for the restoration of such child, every such person shall be guilty of a felony; and upon conviction thereof shall be sentenced to pay a fine not exceeding ten thousand dollars, and to undergo an imprisonment by separate and solitary confinement at labor, fora period not exceed- ing twenty-five years. And if any person within this commonwealth shall know- ingly conceal, harbor or detain, or assist in concealing, harboring or detaining, any such child, so taken, carried or enticed away as aforesaid, either within or without this commonwealth, every such person shall be guilty of a felony ; and upon con- viction thereof be sentenced to pay a fine not exceeding five thousand dollars, and to undergo an imprisonment by separate or solitary confinement at labor not exceeding fifteen years: Provided, That this act shall not apply to the detaining or concealing of any child taken or carried away before the passage of this act, where he person or persons so harboring or concealing shall, within thirty days after the passage of this act, surrender up such child to the custody of the nearest magis- trate or justice of the peace, or to the sheriff of any county within this common- wealth. The offences prescribed by the act of 1860 may be committed, not only bya defendant having a child in actual custody, knowing it to have been kidnapped, but by any act which would show a malicious hiding of the child, as by any mali- cious and intentional proceeding, or means used to prevent the parent, or those searching for the child, from finding him, or by any malicious intentional misleading or false directing of those searching for the child, or by a malicious and fraudulent protecting of his place of concealment from search, and those having him in cus- tody. Counts for kidnapping may be joined with others charging a harboring and concealing with a guilty knowledge.2 This was the celebrated Charlie Ross case The defendant was convicted, and served out his sentence in the penitentiary, without opening his mouth ; and the parents never recovered their child. 1 See 50 L. T. 759. 211 Phila. 461, [ 93} Abortion, I. Definition of abortion. III. Judicial decisions. II. Provisions of the Penal Code. I. Ir a woman be quick with child, and by a potion, or otherwise, killeth it, in her womb, or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was, by the ancient law, homi- cide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor. But if the child be born alive, and afterwards die in consequence of the potion or beating, it will be murder! In Pennsylvania, the punishment of this offence is now provided for by the revised Penal Code. II. Act 31 Maron 1860. Purd. 472, Seor. 87. If any person shall unlawfully administer to any woman, pregnant or quick with child, or supposed and believed to be pregnant or quick with child, any drug, poison or other substance whatsoever, or shall unlawfully use any instrument or other means whatsoever, with the intent to procure the miscarriage of such woman, and such woman, or any child with which she may be quick, shall die in consequence of either of said unlawful acts, the person so offending shall be guilty of felony, and shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years. : Scr. 88. If any person, with intent to procure the miscarriage of any woman, shall unlawfully administer to her any poison, drug, or substance whatsoever, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, such person shall be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprison- ment, by separate or solitary confinement at labor, not exceeding three years. III. In an indictment for administering medicine to procure abortion, the name of the medicine need not be stated, nor need the medicine be described as noxious.? It is not necessary, it seems, in an indictment for the production of an abortion, to aver quickness on the part of the mother; it is sufficient to set forth that she was “big and pregnant.’’ Where a blow is maliciously given to a child whilst in the act of being born, as for instance, upon the head, as soon as it appears, and before the child has breathed, it will be murder, if the child is afterwards born alive, and dies thereof. If the child has been wholly produced from the body of its mother alive, and she wilfully strangle it while it is alive, and has an independent circulation of its own, this is murder, although the child be still attached to its mother by the umbilical cord. But it must be proved that the entire child has actually been born into the world in a living state ; and the fact of its having breathed is not a conclusive proof thereof‘ It is an indictable offence, to procure a pregnant woman to engage in excessive and immoderate exercise, in order to bring about a miscarriage.® Under an indictment for procuring an abortion of a quick child, which isa felony by statute, in New York, the prisoner may be convicted of a misdemeanor, if the child were not quick.® ; Where death results from an abortion, the dying declarations of the woman are not evidence against a prisoner charged with the offence.’ The offence described in the 87th section does not amount to murder, either in the first or second degree® 113Bl. Com. 129. 4Gilm.111. 1 Bouv.Inst. +4 Whart. Cr. L. 3 942. 86. See Whart. Law Dict. 8. 5 3 Pitts. 462, 27 Blackf. 592. And see 1 Keyes 341. 6 3 Hill 92. 8 3 Clark 487. 13 Penn, St.631. Bright.441. 7 16 W.N. 0. 453. Whart. Pr. 108. Whart. Cr. L. 3 1220. 8 17 Ibid. 492. er Academic Deqrees. Act 19 May 1871. Purd. 473. Sect. 1. It shall not be lawful for any university, college or other institution incor- porated under the laws of this state, with power to grant academic degrees, honorary or otherwise, to confer the same upon any person or persons upon the payment, or promise of payment, by any person, in consideration thereof; and any person know- ingly signing a diploma, or other instrument of writing purporting to confer an academic degree, when such consideration has been paid, or promised to be paid, shall be guilty of a misdemeanor, and on conviction thereof, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, not exceed- ing six months, or both, or either, at the discretion of the court. 1 See 86 Penn. St. 353. [95 J Accessory. IIL. Authorities in relation to accessories. IV. Forms. I. Who are deemed accessories, II. Provisions of the Penal Code. _ 1. AN accessory is he who is not the chief actor in the offence, nor present at its performance, but in some way concerned therein, either before or after the fact committed. An accessory before the fact is one who, being absent at the time of the crime committed, doth yet procure, counsel or command another to commit a crime. Herein absence is necessary to make him an accessory, for if such procurer, or the like, be present, he is guilty of the crime as principal. An accessory after the fact may be, where a person, knowing a felony to have been committed, receives relieves, comforts or assists the felon: to hinder his being apprehended, tried or suffering punishment, makes the assistant an accessory. : II. Act 3 June 1893. Purd. 562. Every principal in the second degree, or accessory before the fact, to any felony punishable under any act of assembly of this commonwealth for whom no punishment is provided, shall be punishable in the same manner as the principal in the first degree is by such act punishable ; every accessory after the fact to any felony punishable under any act of assembly of this commonwealth for whom no punishment is provided, shall, on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, with or without labor, at the discretion of the court, not exceeding two years, and every person who shall counsel, aid or abet the commission of any misdemeanor punishable under any act of assembly of this commonwealth, for whom no punishment is provided, shall be liable to be proceeded against and pun- ished as the principal offender. This section was introduced by the revisers of the Penal Code to simplify the complications now existing in our criminal legislation, in reference to the punish- ment of accessories. As the guilt of principal offenders in the second degree, and accessories before the fact, is morally the same with that of the principal offender, their punishment has been made the same; a general provision has also been made in this section to embrace the cases of accessories after the fact, in felonies, and power is given to the courts to inflict, within certain limits, upon such offenders, a punishment proportionate to their crime, except in the cases of such accessories as are otherwise provided for in the code. Accessories before the fact to misdemeanors, are now punishable in the same manner, at the common law, as the principal, there being, in fact, no such crime known to the common law as an accessory before the fact toa misdemeanor, all such accessories being deemed principals; the last clause of the section is framed with a view to this principle.’ Aot 31 Marcy 1860. Purd. 557. Scr. 44. If any person shall become an accessory before the fact, to any felony, whether the same be a felony at common law, or by virtue of an act of assembly now in force or hereafter to be in force, such person may be indicted, tried, con- victed and punished in all respects as if he were a principal felon.® There is, therefore, 11 Hale H. P. C. 616, 618. 2 Hawk. P. C. 29, 32, See Whart. Law Dict. 11. 2 Report on the Penal Code 37. 3 The principle of this section, which prescribes the same punishment against accessories before the fact in felony, under the various synonymes of aiders, abettors, counsellors, comforters, &c., as against principals, is familiar to our criminal legislation; it is found in the 7th section of the act of 1718, 1 Sm. 113; in the 2d section of the act“of Sth March 1780, 1 Sm. 499; in the 2d, 3d and 5th sections of the act of 5th April 1790, 2 Sm. 531; and in the 4th section of the act of 23d April 1829, 10 Sm. 431. nothing new in the principle of this section which is founded on the theory of the moral guilt of the accessory before the fact being equal to that of the principal offender. The new principle in the section is that which makes the accessory before the fact guilty of a substantive offence, and which subjects himto punishment for his crime, without postponing it until the conviction of the actual perpetrator; or more precisely speaking, which abolishes in felonies the technical distinction now existing between accessories before the fact and principal offenders. This was always the law as 96 ACCESSORY. Ssor. 45. If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force, or that may be hereafter in force, he may be indicted and convicted as an accessory after the fact, to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and con- victed of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished; and the offence of such person, howsvever indicted, may be inquired of, tried, determined and punished, by any court which shall have jurisdiction to try the principal felon, in the same manner as if the aet by reason of which such person shall have become accessory, had been committed at the same place as the principal felony: Provided always, That no person who shall be once duly tried for any such offence, whether as an accessory after the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence.! regards misdemeanors in which there are no accessories, all being regarded by law as prin- cipals ; in felony, however, except in certain cases about to be noticed, an accessory cannot be tried before the conviction or outlawry of his principal, unless tried with him. In felonies of frequent occurrence, this was found a great and serious evil. which called for and received partial legis- lative correction; as early as the act of the 31st May 1718, 1 Sm. 105, it was provided that per- sons harboring, concealing or receiving robbers, burglars, felons or thieves, or receiving or buying any goods or chattels that should have been felon- iously taken or stolen by any such robbers, &c., knowing the same to be stolen, might be pro- ceeded against as is therein directed ; and that if any such principal felon could not be taken, so as to be prosecuted and convicted for such offence, that nevertheless it should be lawful to prosecute and punish every such person buying or receiving any goods stolen by such principal felon, knowing the same to be stolen, although the principal felon should not be convicted of the felony. This, however, embraced only one class of accessories, to wit, receivers of stolen goods, in cases where the principal was not amenable to justice; after- wards, by the act of 23d September 1791, 3 Sm. 41, it was provided “in all cases of felonies of death, robbery and burglary, it shall be Jawful to punish receivers of such felons, robbers and bur- glars, by a fine and imprisonment, although the principal felons, robbers and burglars cannot be taken, so as to be prosecuted and tried for said offences; which conviction and sentence of said receivers shall exempt them from being prosecuted as accessories after the fact, in case the | ee felon, robber or burglar shall afterwards e taken and convicted.” This act extended only to accessories after the fact, in cases in which the principals could not be taken. The act of 11th April 1825, 8 Sm. 438, was passed to avoid a difficulty which afterwards arose in the prosceutions of receivers of stolen goods, in cases in which the principals were amenable to justice. The act of 1718 was taken from the 4th section of 4th & 5th Anne, ec. 31, which only authorized preceedings against such receivers before the conviction or attainder of their prin- cipals, when such principals could not be taken. Forster, in his discourse on accomplices, 3 6, p- 373, says, on this print: “ I know attempts have been made, under various shapes, to prosecute the receiver as for a misdemeanor, while the principal hath been in custody and amenable, but not con- victed; but I think such devices illegal.” The act of 1825 solved the difficulty, by declaring that receivers of property, knowing it to have been feloniously stolen, may be prosecuted, although the principal be not before convicted, and whether he is amenable to justice or not. It will thus be seen, that all our legislation with regard to the trial of accessories to felonies, before the conviction of their principals, applies only to accessories after the fact, a class of of- fenders who have had no primary connection with the original crime, and whose guilt only consists in having given comfort and succor to the actual offender, after its perpetration; except in cases of receivers of stolen goods, this offence is often almost venial, consisting frequently in parents and friends, influenced by the ties of blood, or the impulses of affection, giving aid and comfort to an offender whose crime they abominate and deplore. It seems strange, that the common-law privilege, which exempted accessories from liabil- ity to justice, until the conviction or attainder of the principal, should be taken away in cases of accessories after the fact, and left in those of accessories before the fact, whose guilt is always ag great, and often much greater, than that of the principal. The 45th section proposes putting our statute laws on the subject of accessories to felo- nies in harmony with justice and reason. Report on the Penal Code 46-8. See 84 Penn. St. 187. 94 Ibid. 290. 11 Phila. 430. 10 L. Bar 107. 1 This section is only an extension of the exist- ing laws, which, as will be seen from the pre- ceding remarks, subjected accessories after the fact, and receivers, to punishment, before the con- viction or attainder of their principals. It em- braces such accessories not only in common-law felonies, but those created, or which hereafter may be created, by statute; it authorizes the convic- tion of such offenders, either with or after the conviction of the principals, or for a substantive offence, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice. It also provides for the caso of a party becoming an accessory after tho fact in one county toa felony committed in another ; giving jurisdiction over the crime of such accessory to the courts of the county having jurisdiction over the crime of the principal of- fender. This provision supplies the 22d and 23d sections of the act of 1718, 1 Sm. 119, made, pro- babiy, to meet a doubt at common law, whether an accessory in one county to a felony in another, was indictable in either. Report on the Penal Code 48. ACCESSORY. 97 III. If several persons set out together, or in small parties, upon one common design, be it murder, or other felony, or for any other purpose, unlawful in itself, and each taketh the part assigned to him, some to commit the fact, others to watch, at proper distances and stations, to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged, they are all, provided the fact be committed, in the eye of the law, present at it! In some cases, even a person absent may be a principal, as he that puts poison into anything to poison another, and leaves it, though not present when it is taken; and so, it seems, all that are present, when the poison is so infused, and consenting thereto? If an act of parliament (or act of assembly) enact an offence to be felony, though it mention nothing of accessories before, or after, yet virtually and consequentially those that counsel or command the offence are accessories before, and those that knowingly received the offender are accessories after® But if the act of parlia- ment (or of assembly) that makes the felony, in express terms comprehend acces- sories before, and makes no mention of accessories after [the fact], namely, receivers or comforters, then, it seems, there can be no accessories after.* It seems agreed, that the law hath such a regard to that duty, love and tender- ness which a wife owes to her husband, as not to make her an accessory to felony by any receipt given to her husband; yet if she be any way guilty of procuring her husband to commit it, it seems to make her an accessory before the fact, in the same manner as if she had been sole (single). Also, it seems agreed, that no other relation besides that of a wife to her husband will exempt the receiver of a felon from being an accessory to the felony ; from whence it follows, that if a master receives a servant, or a servant a master, or a brother a brother, or even a husband a wife, they are all accessories in the same manner as if they had been mere stran- gers to one another® If the wife, alone, the husband being ignorant of it, do receive any other person, being a felon, the wite is accessory, and not the husband. But if the hus- band and wife, both, receive a felon, knowingly, it shall be adjudged only the act of the husband, and the wife shall be acquitted® A person may be indicted as accessory to an unknown principal.” : By the revised Penal Code, persons charged as accessories to murder, manslaughter or other homicide are directed to be tried at a court of oyer and terminer.2 An accessory may be tried before the conviction of the principal, but the guilt of the latter must be proved. IV. WARRANT FOR MISPRISION OF FELONY. BERKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of H——, in the County of Berks, greeting: Wuergas, complaint hath been made before J. R., one of the Justices of the Peace in and for the County of Berks, on oath of J. L., of H aforesaid, storekeeper, that R.S., of H——, aforesaid, blacksmith, well knowing that a felony and burglary had been com- mitted by A. B., of H—, aforesaid, laborer, in the night of Sunday, the nineteenth day of December, instant, in the dwelling-house of the said J. L., at H—— aforesaid, did unlawfully conceal his knowledge of the same felony and burglary. These are, there- fore, to command you forthwith to take the said R. §., and bring him before the said J. R., to answer unto the said complaint, and further to be dealt with according to law. Wirness the said J. R., at H. aforesaid, the twenty-eighth day of December, in the year of our Lord one thousand eight hundred and seventy-nine. J. R., Justice of the Peace. [smax.] Return of Constable on the Warrant. I have taken the within-named R. S., whose body I have ready, as within I am com- manded. December 30th, 1879. X. Y., Constable. bid. 614. 1 Forst. Cr. L. 350. 2 Clark 367. T 2 Hawk. P. C. 320. 1 3 21 Hale H. P.C.216. A felony may be com- mitted through the instrumentality of an innocent agent; but if the agent be guilty, the absent em- tes is only an accessory. 4 Park. 234. 5 Ibid. 19. 23 How. Pr. 93. 57 Ibid. 342. § 1 Hale H. P. ©. 613. 7 Hale H. P. C. 621. Brewst. 422. Purd. 1770. 107 Penn. St. 486. Seewoaone 98 ACCESSORY. WARRANT FOR AN ACCESSORY BEFORE THE FACT. MERCER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Mercer, greeting: Wuerzas, information hath been made on oath before J. R., one of the Justices of the Peace in and for the County of Mercer, that one C. D., of the township aforesaid, laborer, on the night of Tuesday, the seventh day of May, last past, did feloniously break and enter the dwelling-house of E. F., at L. P., in the said county; and that A. B. of the township aforesaid, yeoman, did procure, aid and abet the said C. D. to commit the said felony and burglary. You are, therefore, hereby commanded forthwith to take the said A. B. and bring him before the said J. R., to answer unto the said complaint, and further to be dealt with according to law. Witness the said J. R., at H——, in the said county, the fourth day of June, in the year of our Lord one thousand eight hundred and seventy-nine. J. R., Justice of the Peace. [szat.] Return of Constable. By virtue of this warrant, to me directed, on the fifth day of June, instant, I took and arrested the within named A. B., and safely kept him in my custody, until C. S., of S—— township, aforesaid, and divers other persons to me unknown, on the sixth day of June, instant, at the township aforesaid, assaulted and ill-treated me, and the said A. B., out of my custody, then and there, rescued. And afterwards, the said A. B. is not found in my bailiwick. June 10th, 1879. X. Y., Constable. CoMMITMENT FOR AN ACCESSORY AFTER THE FACT. DAUPHIN COUNTY, ss. The Commonwealth of Pennsylvania, To any Constable of the said county, and to the Keeper of the Dauphin county prison, eeting : Oimuee are to authorize and require you, the said constable, forthwith to convey and deliver into the custody of the keeper of the said prison, the body of J. L., of H in the said county, coppersmith, charged, on the affirmation of J. W., of H—— aforesaid, farmer, before J. R., one of the Justices of the Peace in and for the said county, with having received, comforted, assisted and relieved a certain R. S., well knowing that a felony and robbery had been committed by the said R. 8. upon T. B., of Berks county, yeoman, on the sixth day of March, last past, by assaulting him upon the public high- way, leading from L—— to H , and feloniously taking from him the sum of forty-five dollars. And you the said keeper are hereby required and commanded to receive the said J. L. into your custody, in the said prison, and him there safely keep, until he be thence delivered by due course of law. Witness the said J. R., of H. aforesaid, the tenth day of April, in the year of our Lord one thousand eight hundred and seventy-nine. J. R., Justice of the Peace. [szat.] When the person charged is brought before the justice and the witnesses examined, if the offence be bailable, he ought to be required to give sufficient surety for his appearance at the succeeding court ; if the offence be not bailable, or if the offender refuse or neglect to give such surety, he ought to be committed. ForMs OF DOCKET-ENTRIES IN CRIMINAL CASES. THE CoMMoNWEALTH Warrant issued May 24, 1893, to the constable of S—— town- ia ship, on the atlirmation of D. W., charging defendant with re- LL. ceiving, &c., R. §., who had committed a robbery upon 8. B. April 4th, 1879, defendant brought, denies the charge, and ten- ders bail, which is accepted. : costs. J. L. bound ia $100 i the appearance of J. L. at the next ca Justis i G. D. “ $100 f sessions, &c., to answer, &c., and not to Docket-ontry é ‘ ‘i ji 25 depart, &e. Warrant 7 + + s+ 88 Acknowledged May 25, 1893, before me, J.R. EAIEABGO” la sh D. W. bound in $50 for his appearance at next sessions, &c., sees 109 | t© testify, &c , and not to depart, &c. Mileage. . + ° + . 80] Acknowledged May 25, 1893, before me, J.R. | (Returned to June sessions, 1893. ) ACTIONS AT LAW. 99 Tor CoMMONWEALTH Warrant issued May 24, 1893, to the Constable of H—, aig: on oath of J. L., charging defendant with concealing 8. R., RS who had committed a burglary in the dwelling-house of the pas said J. L., May 20,1893. Defendant brought and denies the : charge. On hearing, he is directed to enter bail for his ap- DeeheN een dO teT serrca | Pearance, &c, which he refuses. Commitment issued. by constable. ; J. L. bound in $50 in their appearance respectively at next ses- J.F. “$50 } sions, &c., to give evidence, &c., and not to COosTs. J.D. «& $50 J depart, &e. Justices © ses BRS Acknowledged May 24, 1893, before me, Donstabloe Seat Oy J. B., Justice. J. L. and J. F. sworn, J. D. affirmed. (Returned to June sessions, 1893.) Actions at Law, Or Proceedings before Justices of the Peace in Civil Cases. I. General nature of actions at law. 8. Trials by jury. IL. Civil jurisdiction of justices. 9. Proceedings before referees. 1. Historical review. IV. Of the appeal. 2. Jurisdiction in contract. V. Of the certiorari. 3. In penal actions. VI. Proceedings subsequent to the judgment. 4, In actions on foreign judgments. 1. Of the stay of execution. III. Proceedings in civil causes. 2. Of the transcript to bind real estate. 1. Of the summons. 3. Of the execution. 2. Of the warrant. 4. Liability of the constable. 3. Process in case of non-residents. 5. Docket-entries and transcripts. 4, Amicable actions. 6. Transcripts to other counties. 5. Judgments hy default. 7. Satisfaction of judgments. 6. Of the trial before the justice. VII. Justices’ dockets. 7. Of depositions. VIII. Proeeedings in a civil suit before a justice. I. GENERAL NATURE OF ACTIONS AT LAW. AN action is defined to be the formal demand of one’s right from another per- son or party, made and insisted on in a court of justice. Ina quite common sense, action includes all the formal proceedings in a court of justice, attendant upon the demand of a right, made by one person or party of another, in such court, includ- ing an adjudication upon the right, and its enforcement or denial by the court. The vital idea of an action is, a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or the law. The term “suit” is a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him. The modes of proceeding may be various ; but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit.2 To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, accord- ing to the common acceptation of language, to continue that demand.? In general, an action lies for every violation or withholding of a legal right; but to this general rule, there are certain well-understood legal exceptions. Thus, a contract which is founded upon a transaction which is in violation of a statute, or founded upon an immoral consideration, or contrary to public policy, cannot be enforced by an action of any kind. And the test whether a demand connected with an illegal transaction can be enforced at law is, whether the plaintiff requires the aid of the illegal transaction to establish his case. In such cases, the maxim applies— “ex turpi caus@ non oritur actio”—no action arises out of an immoral transaction 1 Bouv. Law Dict. 77. ¢ Bright. Dig. 388. 2 2 Pet. 464, Marswaut, C. J. 5 2 Dall. 160. 1 Y¥. 443. 73 N. Y¥.12. 93 * 6 Wheat. 408. Thid. 559, 1 Denio 595. 100 ACTIONS AT LAW. Another example is, that no action will lie against a judge, or other person act- ing in a judicial capacity, for an act done in such judicial capacity, however mis- taken or erroneous may be his action, or however malicious even his motives, if he had jurisdiction! This rule is essential to the due independence of the judicial character. No action can be sustained, unless the cause of action was complete and _petfect at the institution of this suit; and this is the impetration or suing out of the writ, So, a party plaintiff cannot split up an entire cause of action into separate parts, and by assigning one of them to a third person, subject the defendant to more than one suit.? The plaintiff must commence his suit within a certain period after the cause of action accrued, which varies according to the nature of the subject ; otherwise his claim may be defeated by the interposition of the statute of limitations, or by the presumption which the law allows in cases of stale or antiquated demands, that they have been satisfied. It is not a statute to protect parties against loss of evidence merely, but to quiet claims, and promote the security of mankind. Formerly, the English courts were disposed against it; but, latterly, they, as well as the courts of the United States, seem inclined, as far as possible, to retrace their steps, and get back to the plain construction of the act.® II. Crvin JURISDICTION OF JUSTICES. 1. Historical review. Justices of the peace had been known to the common law of England for a cen- tury and a half before America was discovered. They were, in their original institution, mere conservators of the peace, exercising no judicial functions. They were invested with judicial powers, for the first time, by the statute 834 Edw. IIL, e. 1, and they then acquired the more honorable appellation of “justices.” But they never exercised, in England, any jurisdiction in civil causes. The office of justice of the peace was brought here by the English colonists; from the earliest colonial period, it has existed in this country. But as they had no civil jurisdic- tion in the mother country, so they had none here, except such as was conferred upon them, from time to time, by the colonial statutes. It has frequently been decided, that in civil cases their jurisdiction is derived altogether from statutes, and when a cause of action is not embraced in such statutes, they can have nothing to do with it.® Prior to the charter of King Charles IT. to William Penn, there is no trace of any civil jurisdiction having been conferred on justices of the peace, out of sessions. The Duke’s Laws, originally compiled by Lord Clarendon, for New York, Long Island and dependencies, were extended to the territories on the Delaware, by an ordinance of Governor Andross, dated the 25th day of September 1676 ; and it was thereby provided, that there should be held three courts of sessions, to consist of justices of the peace, three to make a quorum, who should have power to decide all matters under twenty pounds, without appeal; and that small matters, under the value of five pounds, might be determined by the court, without a jury, unless desired by the parties. . Immediately after the arrival of William Penn, it was enacted by the first gen- eral assembly, held at Upland, or Chester, on the 7th December 1682, ch. 76, that all matters of debt or dues, under forty shillings, should be heard and determined, upon suflicient evidence, by any two justices of the peace of that county where the cause arose ; and that such justices should report their judgment to the next county court, and the same should be recorded by the clerk of the county court as good and binding, if the court approved the same. This was declared to be a funda mental law, but was abrogated in council in 1693. On the 10th May 1690, it was provided by statute, that upon complaint made of any debt or due, under forty shillings, to any one justice of the peace, it should be 1 2 Dall. 160. 29 Leg. Int. 12. 3 Clark 411. 227. & H. Pr. 2 1618. Seo tit. Limitation of * This act is generally known as the Great Actions. Law. Old Colonial Laws 107, 31 Ash. 130. Ibid, 152. 1 Binn. 105, 49 5 Ibid. 181, Penn. St. 387. 1 Luz. L. Reg. 90. 8 Phila. 636, ACTIONS AT LAW. 101 lawfal for him, upon sufficient evidence, to hear and determine the same; and in case the party complained against would not comply with and satisfy the judgment, then such justice should report his judgment to the next county court, and the same should be recorded by the clerk thereof as good and binding, if the court approved the same! This also was abrogated in council, in 1693; but was re-enacted in the same year, by the 84th section of the Petition of Right? In 1700, it was enacted, that upon complaint made to any justice of the peace against any person justly indebted under the sum of forty shillings, it should be lawful for the said justice to issue his warrant, directed to the constable, to summon the defendant to appear before him, at such time and place as he should appoint, and upon full hearing and good evidence, to give judgment in the matter, which should be final and conclusive to both plaintiff and defendant, without further ap- peal; and that execution should be awarded against the person refusing to comply with the judgment, to levy the same upon his goods and chattels, and for want of goods and chattels, against his body: provided that the act should not extend to any debt for rents or contracts for real estates. On the 28th May 1715, a law was passed, repealing all prior acts upon this sub- ject, and regulating the proceedings before justices for the recovery of debts, under forty shillings. On the 7th March 1745, their jurisdiction was enlarged to the extent of ten pounds. On the 19th April 1794, their jurisdiction was further enlarged to amounts not exceeding twenty pounds. And by the act 28th March 1804, to the amount of one hundred dollars.’ These acts were all repealed and supplied by that of 20th March 1810,° which provides, that ‘the justices of the peace of the several counties of this commonwealth, shall have jurisdiction of all causes of action arising from contract, either express or implied, in all cases where the sum demanded is not above one hundred dollars; except in cases of’ real con- tract, where the title to lands or tenements may come in question, or action upon promise of marriage.” It was subsequently provided by the act 7th July 1879,* that they ‘shall have concurrent jurisdiction with the courts of common pleas of all actions arising from contract, either express or implied, and of all actions of tres- pass, and of trover and conversion, wherein the sum demanded does not exceed three hundred dollars, except in cases of real contract, where the title to lands or tene- ments may come in question, or action upon promise of marriage. The jurisdiction of the magistrates’ courts of Philadelphia is limited to $100, by the constitution of 1874. 5 2. Jurisdiction in contract. The act of 1810 confers upon justices jurisdiction of all causes of action arising from contract, either express or implied. ‘The legislature, in conferring jurisdic- tion on justices of the peace, had in view those contracts which arise immediately out of a course of dealing between the parties, and not that sort of contract that arises remotely out of the compact of government.” And therefore, justices have no jurisdiction of an action on a sheriff’s bond ;# ora constable’s bond ;” nor in debt against a sheriff for an escape; nor of an action against a constable, for not paying arrears of rent out of the proceeds of an execution ;* nor for a militia fine, although the plaintiff is a constable, who alleges that he has paid the amount for the defend- ant, and seeks to recover it back as money paid, laid out and expended.® Nor have they jurisdiction of an action to recover a balance due on a judgment of the coin- mon pleas ;® nor on the judgment of another justice, except in the particular mode prescribed by the act ; nor of an action for the penalty, for not entering satis- { Old Colonial Laws 186. 8 Purd. 1126. 2 Thid. 219. 9 Tbid. 1128. 8 Bradford’s Laws 1714, p. 43. This was the 1°13 S, & R. 103, 2 P. & W. 295. 1 Leg. first act that empowered justices to enforce their Chron. 293, judgments by execution. 178. & R. 367. 4 Bradford’s Laws 1728, p. 143. 12 4 W. 215. 5 2 Miller’s Laws 9. And see act 23 September 18 138. & R. 44. 1784, Pamph. 399; and act 5 April 1785, Pamph. 1 12 Penn. St. 379. s.P. 7 Luz. L. Reg. 66. 560. 1 1 Ash, 13 n. § 3 Dall. Laws 536. 1688. & R. 343. 12 Ibid. 58. ‘ Pamph. 383. W175. & R. 369. 102 ACTIONS AT LAW. faction on a judgment ;! nor on a devastavit by an executor ;? a forfeited recogni- sance ;* on a bail-bond ;* nor of an action for a legacy ;° nor in account-render ;* or detinue.’ Nor of an action against another justice, for money collected in his official capacity ;* or for a tort; or for jurors’ fees.” . In all contracts there must be two or more contracting parties, and the law will enforce upon each party the fulfilment of that portion of the contract he may have engaged to perform ; the contract itself being for a valid consideration, and founded in good faith. Every contract implies an assumpsit in law to perform the same; a contract would be to no purpose if there were no means to enforce its performance. All contracts are to be certain, perfect and complete. A contract made and entered into upon good consideration, may, for good consideration, be dissolved. *‘ A pro- mise,” says Blackstone, ‘is in the nature of a verbal contract, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If, there- fore, it be to do any explicit act, it is an express contract, as much as any covenant, and the breach of it is an equal injury.” Express contracts include sales, rents, or other agreements where there is a fixed price agreed upon for the articles sold or the property rented; in such cases, the seller of the goods, or the renter of the property, may bring suit against the pur- chaser or the tenant for the sums which they had severally agreed to pay. If the purchaser, however, shall pay the money agreed upon, and the goods sold shall not be delivered according to the agreement, the purchaser may bring suit against the seller to recover back the money he had paid; the seller having, by the non-delivery of the articles at the time agreed upon, failed to fulfil his contract; and farther, if the purchaser shall be able to show any damage he has sustained ‘from the non-performance of the contract, he may bring suit not only to recover back the money he has paid, but also for damages. When the seller of the goods undertakes their delivery to the purchaser, he is an- awerable for such delivery, at the ¢me and place and in the condition agreed upon. But if the purchaser undertake to provide a conveyance, or direct that the goods be sent bya particular carrier or a certain line of stages, if the seller sends the goods purchased, according to the directions of the buyer, and they miscarry, or come too late, or get damaged, the purchaser must suffer the loss. The reason for this difference is obvious ; in the first case, the carrier of the goods is the agent of the sedler, and in the second case, the carrier of the goods is the agent of the purchaser. : Where there is no agreement, that is, as to rent, between the owner of a property and the occupant, the owner may recover reasonable satisfaction for the tenements which have been occupied, in an action for use and occupation. 'Fhis, however, is an implied contract. ‘Implied contracts,” says the same author, “ are such as rea- son and justice dictate, and which, therefore, the law presumes that every man has contracted to perform: and, upon this presumption, makes him answerable to such persons as suffer by his non-performance.”’ For example, on such presumption suits are brought to recover back money paid in mistake; or through decezt; or by extortion ; or imposition. If a person employ another to do any work or service, the law implies, or presumes, that the employer undertook to pay the person he employed, a reasonable compensation, such as is usually paid for such work or ser- vices in the vicinity where the work was done, or the services rendered. The law also, with equal reason and justice, presumes the person employed engages to do the work, or render the service in such a manner, as such work or such services are usually done, and to be content with the compensation usually paid in that neigh- borhood for such work and services. The law raises a similar implication, where a person buys goods from another with- out. agreeing upon the price to be paid; and in an infinite variety of other cases the ; 13'S. & R. 102. 92P.& W. 292. 1 Ash. 130. Ibid. 152. 12 12 Ibid. 58. Penn. St. 379. 8 W.179. Otherwise, if the dam- : 17 Thid. 370, ° ages have been ascertained by a reference. 1 Y. ; re a He Fs where the party has a right to waive . 59. e tort, and fi i : 10 Tbid. 229. 5 Wh. 452. 1 Y. 248. Be eee et en 1T. & H. Pr. 3 919 vo. 10 tee 3 D 3 Luz. L. Obs. 394. ACTIONS AT LAW. 103 game presumption is assumed; as on promissory notes, orders, due-bills; also to recover back money paid to one acting under a void authority; money paid, laid out, and expended to the use of another, or at his request; or for money had and received by the defendant to the use of the plaintiff; or for goods sold and deliv- ered ; or for work and labor done; or for neglect of duty or non-performance of engagements ; as, where a person loses goods or clothing, &c., at an inn; or where a common carrier, from negligence, fails to deliver the property he had been hired to convey ; or a farrier injures a horse in shoeing him; or a tailor, milliner, shoe- maker or other mechanic does the work he has undertaken to do in an unskilful or uoworkmanlike manner. In these, and in such like cases, though no agreement shall have been made, yet there exists a legal liability, and the law presumes that the party promised to pay the debt, or perform the duty, and on failure the party injured has a right to redress. There is also an extensive class of contracts, implied by reason and con- struction of law, which arises from the presumption that every one who undertakes any office, employment, trust or duty, contracts with those who employ him, or intrust him, to perform its duties, with integrity, diligence and skill. If, from a want of any of these qualities, injury accrues to individuals, they have their remedy by legal proceedings. Justices have jurisdiction of an action on an insolvent bond ;! an award ;? a bail- ment ;3 for the recovery of ground-rent ;* for fees ;5 for the penalty for taking ille- gal fees ;* for unliquidated damages for breach of contract ;7 in assumpsit, for carelessness in the performance of work ;® of an action against executors for money paid by a devisee, which is properly chargeable to the residuary estate ;? or against a constable for selling goods exempt by law. The act of 1810 restricts the jurisdiction to cases where the demand is not above $100. Under this clause, it has been held, that a plaintiff may sue before a justice for a balance of less than $100, although his claim originally exceeded that amount." Where there have been mutual dealings, or partial payments on account, it has ever been the practice to sue before a justice.” But where the plaintiff’s demand has not been reduced by payments, or by mutual dealings between the par- ties, to the statutory standard, he cannot give jurisdiction by remitting part, and suing for the balance.® He may, however, remit a part or the whole of the inter- est due on his claim, so as to bring the case within the jurisdiction :* but there must be a formal relinquishment of all interest over $100. Where, however, both the plaintiff's demand and the defendant’s set-off exceed $100, the plaintiff can- not give jurisdiction to the justice, by admitting one item of set-off, and disputing the residue of the defendant’s claim.® A judgment will not be reversed, because, on appeal a declaration is filed for a greater sum than $100." So, a payee of sev- eral promissory notes, amounting in the aggregate to more than $100, may bring several suits before a justice.® Anda justice has jurisdiction of a scire facias to revive a judgment entered before another justice, whose commission has expired, though the interest increase the claim to more than $100.” ; ‘The jurisdiction conferred on justices, in civil cases, is not exclusive of that of the common pleas; the original jurisdiction of that court is without limit as to amount ;” but, by the act of 1810, § 26,7 “If any person or persons shall com- mence, sue or prosecute any suit or suits, for any debt or debts, demand or demands, made cognisable as aforesaid, in any other manner than is directed by this act, and shall obtain a verdict or judgment therein, which, without costs of suit, shall not 12P.& W.462. 3 Ibid. 64. 1 Del. Co. R.354. W.N. C. 64. 37 Penn. St. 134. 13 37 Penn. St. 387. 73 Ibid. 427. 81 Ibid. 87 W.175. Ibid. 542, 439. 3 W. N. ©. 291. 11 Ibid. 206. 1 Leg. 43P.& W. 361. Chron. 170. 3 Luz. L. Reg. 148. 2 Chest. Co. 5 4 Binn. 167. R. 296. 67 W. 491. 14 45 Penn. St. 235. 1 Penny. 51. 1 Chest. Co. 11 Phila. 254, 2 Kulp 393. R. 479. 8 31 Penn. St. 14. 15 10 W. N.C. 388. 39 Leg. Int, 13. 9 32 Ibid. 309. 16 1 Leg. Gaz. 91. 1 3 Gr. 240, 178 Penn. St. 465. 11 Ibid. 280. 37 Ibid. 390. 31] Am. L. Reg, 440. | 18 18 Penn. St. 162. 1211 Penn. St. 281. See 16 8. & R.255. 5 1 6 Phila. 332, 8 Ibid. 337, Whart. +94, 1P.&W.21. 3Ibid. 525. 1W.&S. % 1 T. & H. Pr. 3 21. 67. 7 Ibid. 434. 4 Penn. St. 330. 81 Ibid. 439. 15 % Purd. 1127. 104 ACTIONS AT LAW. amount to more than one hundred dollars, not having caused an oath or affirmation to be made, before the obtaining-of the writ of summons or capias, and having filed the same in the prothonotary’s office of such county, that he, she or they so making oath or affirmation, did truly believe the debt due or damages sustained, exceeding the sum of one hundred dollars, he, she or they so prosecuting shall not recover costs in such suit.” Under this section, it has been determined, that if the amount be reduced below $100, by evidence of set-off, the plaintiff will recover costs, without an affidavit ;) and so, where it is reduced below $100, by evidence of a special contract to pay the debt of a third person? But it is otherwise, where the amount is reduced by direct payments. Where the plaintiff, in an action in the common pleas, on a con- tract, recovers less than $100. and there is nothing on the record to show that the demand was reduced by set-off, the presumption is, that it was within the jurisdic- tion of a justice* The act of 1879, increasing the jurisdiction of justices to $300, contains no such provision in respect to costs; it merely confers on justices, in the cases enumerated, concurrent jurisdiction with the courts of common pleas. The act of 1810 excepts from the jurisdiction of justices cases of real contract, where the title to lands or tenements may come in question, and actions upon pro- mise of marriage. This excludes from their cognisance every suit on a contract concerning or in any way connected with realty. A justice has no jurisdiction where the title to land may come in question, directly or indirectly ;” as of an action on a note given in consideration of a right to dig a mill-race, and conduct water across the plaintiff’s land. An action for the balance of the purchase-money of a lot of ground, is within the exception of the statute ;° so is one to recover back money paid on a contract for the sale of land, which is afterwards rescinded because of a defect of title ; or to recover damages for a deficiency in quantity, in the sale of land.” and being an existing demand which may be enforced by action, the defendant must set off the same or be for ever barred.® If the set-off, however, exceed $100, it must be rejected as beyond the jurisdiction of the justice.’ But if the defendant’s demand be composed of several items, he may set off such of them as do not exceed the jurisdiction ;* the law does not, however, compel him to doso.® And though the justice’s judgment is a bar to a cross-demand not set up on the trial before him, yet, if there be an appeal from the judgment, such set-off may be established on the trial of the appeal.’ A debtor has a perfect right to purchase a claim, and use it as a set-off;" but he must show that it was assigned to him, before suit brought.” The act provides for a rehearing, where there has been judgment by default, and the defendant has a set-off against the plaintiff’s demand, which would otherwise be barred. In general, a justice has no power to open his judgment, except under the circumstances, and in the manner provided by the statute.“ But though this be so, as to a judgment regularly entered, he may open a judgment by default, which was irregularly entered without service of process on the defendant.4 It was decided, as early as 1702, that a new trial cannot be granted by an inferior court, upon the merits.“ It seems, that even the courts of common pleas have no power to open their judgments, obtained adversely, after the expiration of the term at which they were entered.¢ Justices have no jurisdiction to enter judgment upon a warrant of attorney ;!” but the act of 1810 provides that in all cases of bonds, bills or notes, containing a waiver or stay of execution, any justice may, on application to him, after such bond, bill or note becomes due, issue a summons and proceed to hear and determine the same as in other cases; and on judgment being rendered in favor of the plaintiff, he may issue execution thereon, without stay. Yet in case of judgment by default, the defendant shall, at any time within twenty days thereafter, be entitled to arehearing or appeal, though execution may have issued. The defendant may, however, embody in his contract a waiver of the right to appeal from any judgment rendered against him for the same; and in such case he will be bound by the decision of the justice, unless under special circumstances.” 13 Luz. L. Reg. 35. See 2 Del. Co. R. 355. 114 W.N. C. 476. 214. Law Rev. 11, 12 29 Penn. St. 192. 35 W.& 8. 459. 15 Penn. St. 361. 1 Ash.171, 13 1 Phila. 520. Ibid. 515. 5 Ibid. 468. 8 Ibid. 2 Ibid. 146. 1 Lack. L. Rec. 404. 2 Kulp 311. 546. Ibid. 299. 8 W. N.C. 28. 4 Pard. 1134, 14 21 Leg. Int. 340. 54 W. & 8.290. 6 Ibid. 155. 15 Penn. St.362. 15 2 Salk. 650. 2 Mod. 84. Sayer 202. . 6 15 Penn. St. 361. . 16 2 W. 378-80. 6 Ibid.513. 33 Penn. St. 485. 7 37 Ibid. 456. See 2 Brewst. 124~7. 83P.& W. 469. 3 Luz. L. Reg. 71. 7 1 Binn. 105.. 1 Chest. Co. R. 65. ® 3 Penn. St. 459. 1 Purd. 1134. 0 2 Gr. 150. 1 8 W. 371-2. And see 91 Penn. &t. 385. 8 ° 114 ACTIONS AT LAW. Justices are empowered by the act of 1722, § 8,1 to issue subpwnas into any county or place within the state, for summoning any persons to give evidence with respect to any matter triable before them ; and to enforce the attendance of such witnesses by attachment. : . If the defendant be not ready for trial, and show cause for an adjournment, in a case in which he is not liable to arrest, the act of 1842 provides, that he shall give a bond or recognisance, conditioned that no part of his property, which is liable to be taken in execution, shall be removed, secreted or in any way disposed of, except for the necessary support of himself and family, until the plaintiff's demand shall be satisfied, or until the expiration of ten days after such plaintiff shall be :u.tled to have an execution issued on the judgment obtained in such cause, if Le’ shall obtain such judgment; and if the condition of such bond or recognisance be broken, and an execution on such judgment be returned unsatisfied in whole or in part, the plaintiff in an action on such bond or recognisance, shall be entitled to recover the value of the property so removed, secreted or assigned.’ A sale under a subsequent execution is a breach of such recognisance ;* and so is a general assign- ment for the benefit of creditors. In an action on the recognisance, parol evidence is admissible, that the defendant had goods at the time it was acknowledged.® It is provided by statute, that it shall be the duty of justices of the peace and aldermen of this commonwealth, to render judgment, in any cause or causes pending before them, within a period of ten days after all the evidence in said causes shall have been heard. And that any justice of the peace or alderman of this common- wealth, who shall fail to comply with the provisions of the act, shall be guilty of a misdemeanor, and upon conviction, shall be fined in any sum not exceeding one hundred dollars." It is held in New York, where a similar law prevails, that a failure to enter judgment within the time prescribed, deprives the justice of juris- diction over the case ;* but that a compliance with the provisions of the statute may be waived by agreement of the parties® If the last day fall on Sunday, he must give judgment on the preceding day.!? But this does not appear to be necessary under our act of 1883, relating to the computation of time.Y 7. Of Depositions. Upon the affidavit of either party, or their agent, that the testimony of any material witness is wanted, who resides out of the county, or from his infirmity of body or other causes, cannot be obtained personally, the cause shall be postponed to a certain day, within such reasonable time as the distance of the witness, the season of the year, and the circumstance of the road, may render it proper, to obtain the deposition of the witness wanted; and whenever a cause is postponed at the instance of the defendant, he shall enter into a recognisance for a sum sufficient to cover the demand in question, together with the costs, with ove sufficient surety, conditioned, as prescribed by the act of 1842, that no part of his property, liable to be taken in execution shall be removed, secreted, assigned, or in any way dis- posed of, except for the necessary support of himself and family, until the plaintiff's demand shall be satisfied, or until the expiration of ten days after the plaintiff shall be entitled to execution on his judgment, if such judgment be obtained. And whenever a rule for taking the deposition of a witness or witnesses shall be applied for, as aforesaid, the party so applying shall file a copy of the interrogatories or questions intended to be asked the witnesses, and a copy of such interrogatories or questions shall be delivered to the opposite party or his ageut, who may also file such additional questions as he may think proper: Provided, The same be done within four days after the receipt of such copy. Which rule and interrogatories being certified by the justice before whom the cause is depending, shall be sufficient authority for the justice who may be named in said rule, to take the answers of such witnesses as may be therein named ; but where the witnesses reside in the 1 Purd. 1131. 7 Act 22 3 2 See tit. “ Attachment for Contempt.” 8 1 Hilt. te ae aero e 8 Act 12 July 1842 333, Purd. 1135, 9 {1 Barb. 98. 5 Daly 278. 4 13 Penn. St. 86. 10 6 Daly 521, att § 8 Clark 259. 1 See tit “Time 8 4 Ponn. St. 339. : ACTIONS AT LAW, 115 county, or in cases where the parties or their agents agree to enter a rule to take depositions, it may be done, without filing interrogatories, upon notice given, agree- able to the rule, of the time and place appointed for the examination of the witnesses; and testimony so taken shall be read in evidence on the trial before the justice or referees The act of 11th April 1863, dispenses with the filing of interrogatories, except when depositions are to be taken without the state. The justice should be particular in obeying the injunction to postpone the cause to a day certain, as an indefinite adjournment is equivalent to a discontinuance of the case, unless the parties, by agreement and appearance, consent to its being taken up again. In all cases where a suit is pending before a justice of the peace, either party may obtain testimony out of the state, in the same manner. In all such cases, where it shall not be convenient to take the testimony of witnesses before a justice of the peace, it shall be lawful for the party or parties to name a commissioner, who on receiving a certificate of his appointment, with a copy of the rule and interrogatories, certified by the alderman or justice of the peace, shall have authority to administer oaths and affirmations, and take the answers of witnesses therein named; and depositions so taken shall be as good to all intents and pur- poses as if the same were taken before a justice of the peace? In all cases where 2 commission shall be issued from, or a rule be taken in any court of record in this commonwealth, or from any justice of the peace or alder- man, under the act entitled “‘an act to amend and consolidate with its several supplements, the act entitled ‘an act for the recovery of debts and demands not exceeding one hundred dollars before a justice of the peace, and for the election of constables, and for other purposes,’ ’’ and of the supplement thereto, passed on the 30th day of March 1829, for the examination of witnesses, it shall be competent for the person or persons named in or authorized by such commission or rule, to issue subpeenas to such witnesses as may be requested by any of the parties con- cerned, requiring their attendance at a certain day, hour and place therein desig- nated, having regard to the distance of such witnesses, and under a penalty not exceeding one hundred dollars.* In case of the non-attendance of such witnesses, it shall be lawful for such com- missioner, or person or persons duly authorized as aforesaid, on proof, by oath or affirmation, of the due service of the subpoena, to issue process of attachment against the defaulting witness; whereupon the same proceedings shall be had; as are used and allowed in like cases, in the courts of record of this commonwealth. The party injured by such non-attendance shall also be entitled to the same remedies at law against the person subpoenaed, as are provided when a subpana is issued from a court of record.§ ; If the person subpoenaed shall attend, but refuse to testify, he shall be liable to the same proceedings on the part of the commissioners, or persons authorized ag aforesaid, as if he had appeared and refused to testify in a court of record.® A defaulting witness, when brought in on an attachment, is called up to purge himself of the alleged contempt, which if he do to the satisfaction of the court, he is dismissed without more; but if he fail to purge himself, the court adjudges him guilty of contempt, and imposes the costs of the attachment, and such additional fine as, in their discretion, the case seems to demand ; and in default of payment, he may be committed to jail to compel execution of the sentence. But he cannot be sentenced to imprisonment for such a contempt; this is forbidden by the act of 16th June 1836,’ which provides that all contempts, except such as shall be com- mitted in open court, shall be punished by fine only. A witness who refuses to be sworn in a court of record, is guilty of a contempt punishable by fine and imprisonment. And the same power is vested in an alder- man, or commissioner appointed to take depositions under this act; but it must be shown that he refused to answer questions pertinent to the issue. The proper 1 Act 20 March 1810 3 8. Purd. 1135. Act 5 Thid. 12 July 1842 3°33, Purd. 1135. 6 Ibid. 2 Clark. 340. 2 Purd. 1136. 7 Purd. 382. 5 Act 30 March 1829. Pura. 1135. 8 2 Law Times (N. S.) 67. And see 39 Leg. * Act 26 February 1831. Purd. 1135. Int. 256. 116 ACTIONS AT LAW. practice is, to obtain a rule to show cause why an attachment should not issue.! But though a commissioner or justice appointed to take depositions may commit for such contempt, the commitment must be definite as to time.” 8. Trials by jury. In all actions arising before justices of the peace in the county of Erie,’ where the sum demanded by the plaintiff shall exceed fifty dollars, either the plaintiff or defendant may demand a jury trial; in which case the justice shall proceed to impannel a jury of six, in the manner provided by the act of the 1st day of May, Anno Domini 1861,‘ entitled “an act to change the mode of criminal proceedings in Eric and Union counties,” and the several supplements thereto; and the mode of procedure shall be the same as in said act provided, so far as may be applicable to civil proceedings; and the successful party shall be entitled to recover full costs; Provided, That before the defendant shall be permitted to demand a jury trial, he shall make and file an affidavit with said justice, that he has a just and legal defence to the whole or a part of the plaintiff’s claim, and if to a part, he shall state how much the plaintiff is justly entitled to recover; and if the plaintiff shall not accept the offer of the defendant, he shall not recover costs, in the event that he shall not obtain a judgment for a larger sum than the amount admitted by the defendant. In case of a jury trial, under the provisions of this act, the justice shall be entitled to the sum of one dollar per day, in addition to the other fees allowed by law to justices of the peace® In all actions founded upon contract, express or implied, brought before a justice of the peace of the county of Erie, in which the defendant shall claim a set-off © or payment, exceeding fifty dollars, either party may demand a trial by jury of six, to be chosen in the manner provided by the act to which this is a supplement. The jurors may be selected from the township, borough or ward in which the justice trying the cause may hold his office, and the adjoining townships, boroughs and wards, in the discretion of the justice ; and either party shall have the right to challenge any of the jury for cause, at any time before they are sworn. All vacancies in the number of jurors that may happen by absence, challenge or other cause, shall be supplied by the justice writing down three names for each vacancy, and the parties shall proceed to strike out, until the requisite numbers to fill the vacancies are left. In all cases of the selection of a jury, or filling vacancies in their number, if either party shall refuse or neglect to strike out the names as directed, the justice shall act forsuch party in striking out the names.’ If any jury shall be unable to agree upon a verdict, and the justice shall be fully satisfied of that fact, he shall have power to discharge them, after giving notice to the parties, their agents or attorneys, of his intention to do so; and the said jus- tice shall then fix a time, not more than three days thereafter, at which another jury shall be chosen; and after such new jury are chosen, they shall be immediately summoned by the constable, upon a new venire, to be issued by the justice for that purpose, and the new trial shall proceed forthwith, unless the same shall be adjourned for some cause shown.® The only remedy which the party aggrieved by any act of the justice or the jury, done under the provisions of this act, or the act to which this is a supplement, shall be by an appeal to the court of common pleas of Erie county, within twenty days after final judgment: Provided, That if the defendant shall prove to the satis- faction of a judge of said court, that he had no knowledge of the proceedings before the justice, until the twenty days for appeal had expired, and that no summons was legally served upon him, said judge may order a writ of certioraré to be issued ; and : Bee Nat 127. February 1872, Pamph. 190. And see Act 6 : ar : April 1870, providing for jury trials, in Mercer Extended to Venango county, by act 18 Feb- county. Pamph. 987, : pry An pe to Lopirenes county by 4 Purd. 1154, ao ebruary ,» Pamph. 254; and to Craw- 5 Act 18 ford county, by act 28 March 1870, Pamph. 586. § Act 28 Mane ee me And this act, and the supplementary act of 28 T Tbid. : : . March 1870 (with the exception of the 8th sec- 8 Ibid. tion), are extended to Warren county, by act 29 ACTIONS AT LAW. 117 upon the defendant entering into recognisance, with sufficient surety, to pay the debt and costs in case the proceedings before the justice shall be affirmed, all pro. ceedings before the justice shall be stayed, until the determination of the court on the writ of certiorari} The jury shall be the judges of both the law and the facts of the case: Provided, That the justice shall have power to exclude such evidence from the jury as has no relation to the matter trying ; and the said jury may ask the opinion of said justice upon the law of the case, in the presence of the parties or their counsel, at any time before rendering the verdict.? It has been decided by the supreme court, that the act of 1861, for the trial of petty offences by a justice and a jury of six, does not conflict with the provisions of the constitution® This appears to settle the question of the constitutionality of the acts conferring a like jurisdiction in civil cases. 9. Proceedings before Referees. The 3d section of the act of 1810 provides, that if the plaintiff’s demand shall exceed $5.33, and either party shall refuse to submit the determination of the cause to the justice, he shall in that case request them to chcose referees, one, two or three each, and mutually to agree upon a third, fifth or seventh man, all of whom shall be sworn or affirmed, “ well and truly to try all matters in variance between the parties submitted to them ;” and on having heard their proofs and allegations, they, or a majority of them, shall make out an award, under their hands, and trans- mit the same to such justice, who shall thereupon enter judgment for the sum awarded, and costs, and shall allow each of the said referees fifty cents per day for his service ;* which judgment so obtained, when not exceeding twenty dollars, shall be final and conclusive to both plaintiff and defendant, without further appeal ; and it shall be the duty of the justice to notify, through a constable or some fit person, each of the referees so chosen, of their appointment, and of the time and place fixed for a hearing; and if any person so chosen and notified as aforesaid shall neglect or refuse to serve, he shall, for every such neglect or refusal, unless prevented by sickness or some other unavoidable cause, forfeit and pay the sum of two dollars for the use of the poor, and where there are no poor, to be paid to the supervisors of the roads, to be applied by them in repairing the streets or public highways of the city or township in which such person or persons so refusing or neglecting shall reside, which fine shall be recovered before such justice of the peace, on complaint of the party injured, as other fines are by law recoverable : Provided, That an action be brought within thirty days after such neglect or refusal.® No action brought before a justice of the peace or alderman shall be referred to referees for trial, unless by agreement or express consent of both parties to the action, or their agents; which agreement or assent shall be noted by such justice or alderman upon his docket.® If any referee appointed under the 3d section of the act to which this is a sup- plement, or under an act regulating the proceedings of justices of the peace and aldermen, in cases of trespass, trover and rent, shall not attend at the time and place fixed for hearing the cause, it shall be the duty of the referee or referees present (where the parties cannot agree on the person or persons to supply the vacancy, or where only one of the parties attends), to appoint proper persons in place of those who may be absent, and the referees thus appointed shall have the same authority as those originally appointed.” The said referees shall be sworn or affirmed by an alderman or justice of the peace, or they may swear or affirm each other, and then any of them shall have power to administer oaths or affirmations to witnesses, in the cause before them ; and the said referees, or a majority of them, shall have power to adjourn their meetings to any other time or place, and as often as they may deem proper.® 1 Purd. 1153. should be one dollar per day. See tit. “* Tres- 2 Thid. pass and Trover.” 5 101 Penn. St. 560. s,p.74 N.Y. 406. 84 5 Purd. 1133. Ibid. 240. 23 Hun, 374. 6 Act 26 April 1855. Purd. 1136. See 1 4 The act of 1814, conferring jurisdiction upon Wood. 492. _ justices in trespass and trover, provided that 7 Act 26 March 1814. Purd. 1136. the compensation of referees under that act 8 Ibid. 118 ACTIONS AT LAW. Referees, or arbitrators, as aforesaid, or a majority of them, shall also have power to punish by fine, not exceeding twenty dollars, all persons, whether parties, wit- nesses or others, who shall be guilty of disorderly conduct in their presence, or who shall insult, disturb or interrupt the said referees or arbitrators, when in business, which fine shall be recovered as follows: The said referees or arbitrators, or a majority of them, shall make out a certificate in the following form, viz. : We, the undersigned referees (or arbitrators, as the case may be), do certify that A. B. this day, at , in the county of , before us, did conduct himself in a disor- derly manner (or as the case may be), tending to insult, disturb and interrupt us in the trial of a certain cause wherein C. D. is plaintiff and E. F. is defendant, for which offence we have fined him, the said A. B., the sum of dollars, which sum you are hereby required to collect according to law. (Signed by the Arbitrators or Referees.) The certificate aforesaid shall be transmitted to an alderman or justice of the peace of the proper city or county, who is hereby required to make a record thereof, and issue execution to collect the same, in the manner that judgments under one dollar, are by law collected; and the sum, when collected, shall be paid by such alderman or justice to the county treasurer, for the use of the county in which the offence may have been committed The prothonotary of the court in which the suit shall be depending, or any alderman or justice of the peace, shall have power to issue subpanas for witnesses to appear before the arbitrators.’ All fines and forfeitures incurred under any of the provisions of this act shall, unless it be otherwise provided, be sued for before an alderman or justice of the peace, in the same manner that debts of equal amount are recoverable. The referees may adjourn, before being sworn,‘ but after they have all met and been sworn, vacancies cannot be supplied. No authority is given to supply a second vacancy. A justice may set aside an award of referees appointed by con- sent, in a cause pending before him, for malfeasance; and if the grounds of his action do not. appear, the court must presume they were sufficient.’ The award merges in the judgment. The record must show that the referees, as well as the justice, acted in conformity with the statute.® IV. OF THE APPEAL. The act of 1810 confers the right of appeal to the court of common pleas from the judgment of the justice: 1. In case of judgment by default for an amount exceeding $5.33: 2. In case of an adversary judgment for a like amount, on a trial before the justice; or from a judgment on an award of referees for more than $20. And the act of 1845 provides that the right of appeal shall be enjoyed by defendants in all cases in which plaintiffs have the same right."° This makes the right of appeal reciprocal in all cases; but it does not extend the plaintiff's right of appeal; and consequently, where, previously, the plaintiff had no right of appedl, this act does not confer such right on the defendant.? If the plaintiff's claim exceed $5.33, and there is a judgment for the defendant, on a trial before the justice, the plaintiff has the right of appeal.’* And so, where the plaintiff’s demand exceeds $20 and referees find for the defendant, or reduce the claim more than $20, the plaintiff is entitled to an appeal.* But in such case, if the plaintiffs’ demand do not exceed $20, he can have no appeal.’ It is the amount of the demand in controversy, and not the amount of the judgment, that regulates the right of appeal.6 Where the sum sued for by the plaintiff, and set forth on the docket of the justice, is reduced by the judgment on an award of referees, more than $20, an appeal lies for the plaintiff, although the judgment is for a less sum than 1 Act 16 June 1836, Purd. 132. ® 3 Leg. Gaz. 260. H Pard. 133. 10 Act 20 March 1845. Purd. 1139. Tbid. 1111 Penn, St. 410. 41S. &R. 231. 6 Ibid. 275, 22 25 Ibid. 340, 5 7 W. 495, B48. &R. 72. : Ibid. 14 12 Ibid. 388. : 9 Penn. St. 106. 1 2 Thid. 463. 12 Ibid. 385. 3 P. & W174 39 Ibid. 274. 1 2W. 304. 48. &R.72. 2 Kalp 419, ACTIONS AT LAW. 119 $20.1 And in such case the defendant is likewise entitled to an appeal, by the act of 1845.2 But if the plaintiff claim $25, and there is an award in his favor for eh neither party can appeal. The amount in controversy may be shown by arol.* : An appeal lies from a judgment for a penalty, exceeding $5.33 ;§ from a judg- ment on a scire facias ;° by a constable against whom a judgment has been entered for not paying over money collected on an execution ;* and by the plaintiff, if the judgmeat be in favor of the defendant.® A defendant may appeal from a judg- ment by confession ; a party is not bound by an admission made in ignorance of his ‘rights. And if he have a cross-demand exceeding $5.38, and the decision of the justice be against the set-off, he is entitled to an appeal; but it must be a bond fide claim to set off." One of two defendants may appeal, although the other comes into court and disclaims ;” but he may be severed, and the appeal be prose- cuted by the other."* A justice is not liable to an action for refusing an appeal ; the remedy is, by applicativn to the court. The defendant cannot have both an appeal and certiorari." The parties may waive the right of appeal ;° but it must be by agreement‘in writing.” The statute provides that the appeal must be taken within twenty days after judgment being given.* In computing the time, the day of judgment is to be excluded ;” and if the 20th day fall on Sunday, the appeal may be entered on the next day.” If the justice, by mistake, refuse an appeal, it may subsequently be entered, after the twenty days." The entry ofa rule to show cause why the judg- ment should not be opened, after the expiration of the twenty days, does not give the right of appeal, on the discharge of the rule ;* but if the rule be taken within the twenty days, it extends the time for entering an appeal.” It is too late to enter an appeal, after the money is made on an execution, although within the twenty days.” If the parties are dismissed, before an appeal is made, the justice shall, at the instance of the appellant, notify, through a constable or other fit person, the adverse party to appear before him, on some day certain; and if the parties shall appear on the day appointed, it shall be in the power of the justice, with consent of the parties or their agents, to open his judgment and give them another hearing ; but if they will not agree to such rehearing, the party appellant shall be bound® in a recogni- sance, as bail absolute, in double the probable amount of costs accrued and likely, to accrue in such case, with one or more sufficient sureties, conditioned for the pay- ment of all costs accrued or that may be legally recovered against the appellant.¥ In case of a corporation appellant (municipal corporations excepted) the bail shall be taken absolute for the payment of the debt, interest and costs, in the affirmance of the judgment.” Executors and administrators, are entitled to appeal, without 11 18 Penn. St. 78-9. 1128. & R. 388. 9 W.17. 3 Penn. St. 454. 11 Jhid. 410. 12215. & R. 492. 211 Penn. St. 410. 18 2 Ibid. 107. 8 25 Ibid. 340. And see 2 Phila, 291. 14 2 Luz. L. Obs. 321. 42 W. 304. 1 Luz. L. Reg. 21, 15 1 Brewst. 406. 5168. & R. 243. The act of 17 April 1876, 12S. &R.114. 8 W. 372. 1 Ash 92. Purd.1142.provides, that either party may appeal 1775S. & R. 366. from the judgment of a magistrate, or a court not of record, in a suit fora penalty, to the court of common pleas of the county in which such judg- ment shall be rendered, upon allowance of said eoert, or any judges thereof, upon cause shown ; and upon such terms as to payment of costs, and entering bail, as the judge or court allowing the appeal shall direct. In this act, there is no limi- tation as to the amount of the judgment. An appeal taken without such allowance, will be stricken off. 2 Del. Co. R. 333. The appeal must be allowed by the appellate court ; the magistrate has no power to grant it. 16 W.N.C.311. 42 Leg. Int. 415. 4 6358. & RB. 93. 7 3 Bright. Dig. 3454, 84 W. & &. 278. 9 25 Penn. St. 409. 02P.& W.120. 2 W. 304. 18 Where the time for entering an appeal is fixed by statute, the court has no power to enlarge it, even on cause shown. 2 Luz. L. Obs. 194. 22 N.Y. 319. And see 14 W.N. C. 456. 193 8. & R.496. 29 Penn. St. 525. 3 Phila, 425. 23 PL.& W. 201. 4 Penn. St. 515. 1 W. WN. C. 64. 21168. & R.421. 2 Ash. 224, 221 Phila. 425. See 3 Penn. St. 211. 106. 2 Clark 318. 23 2 Ash, 224, 2 7 W. 337. % Act 20 March 1810 3 4. Purd. 1139. See 1 L. Law Rev. 19. Ibid. 201. 26 Act 20 March 1845. Purd. 1139. 2115 March 1847. Purd. 1140. 9 S. & R. 257. 4 Luz. L. Reg. 8. 9 Ibid. 120 ACTIONS AT LAW. bail, by the act of 1810;! guardians, by the act of 27th March 1833 ;? and muni. cipal corporations, by the act of 21st April 1858 § 8.° : The appellant need not join with his surety in the recognisance.* It should be taken in a sum certain.> But arecognisance “ in $20, or such sum as may be neces- sary to pay all costs that have or may accrue in the case, in prosecuting this appeal,” was held sufficient.° After the defendant has had the benefit of his appeal, an objection that the recognisance contained no penalty will not be allowed to pre- vail.?’ Ifa defect exist in the form of the recognisance, the practice is, to apply to the court for arule upon the appellant to perfect his appeal within a given time, or show cause why it should not be dismissed ; it would be error to quash the appeal in the first instance. And this applies to an appeal granted erroneously, on the defendant’s own recognisance and plea of freehold.® An objection to the form of the recognisance will be waived, by any step taken to prepare the case for trial.” Where an appeal does not lie, no waiver will give jurisdiction; but where an appeal does lie, the party may, by treating it as regularly in court, waive a defect which would otherwise be fatal.” . Until the transcript is actually filed, the justice retains the right to decide on the sufficiency of the bail? And the defendant cannot defeat the justice’s jurisdiction, by filing the transcript, after notice that his bail is excepted to.* Where, however, the common pleas is in possession of a case, in the shape of an appeal, although defectively entered, the function of the justice terminates™* The rule of court as to attorneys not becoming bail, does not apply to the entry of security before a justice.S The bail is liable, though the appeal was dismissed, because entered too late. But not for the costs of an unproductive execution.” The entry of bail for an appeal, though it may stay the immediate execution of a ft. fa. or other final process, will not avoid all that has been done under such proceedings ; in order fully to supersede the execution, it is necessary to perfect the appeal, by bringing it into court.% If, however, the execution be returned, the lien is gone, though the appeal be never perfected.’® If' the party appellant shall enter bail to appeal, within twenty days after judg- ment being given as aforesaid, such appeal shall be effectual, in case such party appellant shall file the transcript of the record of the justice, in the prothonotary’s office, on or before the first day of the next term of the court of common pleas of the proper county, after entering such bail as aforesaid.” In Philadelphia, the appeal must be filed on or before the next monthly return-day.4_ The appeal must be filed to the next term, though the twenty days may not have then expired.” But a defective appeal may be withdrawn, and other bail entered, within the twenty days, though a return-day has intervened.* The appeal need not be filed within twenty days after the judgment; it is enough, that it be entered on the docket of the court, at any time before the next return-day.* A party who makes the justice his agent for the purpose of filing his appeal, is not entitled to relief, if the justice neglects to do so.% If the defendant file his appeal, but neglect to enter an appearance, and cannot be found, judgment may be taken for want of an appearance. In all cases where an appeal is taken from a judgment of a justice of the peace or alderman, and the appellant neglects or refuses to file the same in the prothono- 1 Purd.1139. And see 1 Wood. 216. 18 14 W. N.C. 438. 2 Thid. ™ 12 Phila, &. 3 See 1 Phila. 402. W 2 Luz. L. Obs. 332. 4 6 Binn. 52. 18 29 Penn. St. 240. Purd. 1132, note b. 51P.& W.9. 11 Penn. St. 291. 19 39 Penn. St. 28-4. 6 14 Penn. St. 158. See 19 Ibid. 356. 20 Act 20 March 1810 3 4, Purd. 1141. 1 22 Ibid. 33. And see 38 Ibid. 500. 31 Act 1 May 1861. Purd. 1142. See act 9 April § 168. & R. 349. 2 P.& W. 431, 1W.&S. 1862, as to the filing of appeals in Delaware 378. 65 Ibid. 363. And see 104 Penn. St. 1. 2 county, Pamph. 347; and act 18 May 1871, as to Chest. Co. R. 148. Allegheny county. Pamph. 939. 8 7 Phila. 338. 23P.& W. 416. 1 WV. N.C. 415, 10 11 Penn. St. 336. See 17 W. N. OC. 324. 8 12 Penn. St. 363. And see 1 Leg. Gaz. 85 11:1 Ash. 168, 48.4 R.190. 17 Ponn. St.89. 1 W. N.C. 232. 2 . And see 1 Luz. L. Reg. 497. 104 Penn. St. 1. 368. 1W.N. OC. Wo ea aie ee 13-6 Ponn, St. 194. 1 Ash. 47, “3 Binn. 432, ies 14 1 Ash. 80. 3 2 W. 72, 1 T[bid, 168. 2% 1 W.N. OC. 444. ACTIONS AT LAW. 121 tary’s office of the proper county, according to law, it shall and may be lawful for the justice or alderman before whom the judgment was entered, to issue an execu- tion for the amount thereof, at the instance and request of the appellee, or proceed by scire facias against the bail! A certificate of the neglect to file an appeal is not necessary, to enable the justice to issue an execution; he may do s0, at his own risk, if satisfied that the appeal has not been perfected.? In Philadelphia, in addition to the entry of bail, the defendant, or some person acting in his behalf, having knowledge of the facts of the case, is required to file with the magistrate, an affidavit that the appeal taken is not for the purpose of delay, but that if the proceedings appealed from are not removed, he or the defend- ant will be required to pay more money, or receive less, than is justly due; which affidavit is to be attached to the transcript, by the magistrate, to be filed in the court to which the appeal is taken. This extends to appeals under the landlord and tenant law. And itis the duty of the magistrate to inform the appellant that an affidavit is requisite to perfect his appeal. The act of 24th June 1885 provides, that in all cases of appeal from the judg- ment of an alderman or a justice of the peace, the said alderman or justice shall be entitled to demand and receive, from the appellant, the costs in the case, before the making and delivery of the transcripts for said appeal; and, if the appellant shall finally recover judgment in the case appealed, he shall be entitled to receive and collect from the adverse party the costs so as aforesaid paid on appeal. And that aldermen and justices of the peace shall have the same right, to demand and receive the costs as aforesaid, before issuing the transcript of a judgment recovered before them, for entry in the court of common pleas, or other purpose ; and the party paying the same shall be entitled to recover them from the party legally liable to pay the same: Provided, however, That any party to a suit before an alderman or justice of the peace shall have the right to appeal, and demand and receive transcripts, without payment of costs as hereinbefore provided, on their making and filing, with the alderman or justice of the peace, an affidavit that they are unable, through poverty, to pay said costs.® In all cases in which judgment shall have been rendered by any justice of the peace or alderman in this commonwealth for wages of manual labor, before the defendant shall be entitled to an appeal from the judgment of the justice or alderman, he, or his agent or attorney, shall make oath or affirmation that the appeal is not intended for the purpose of delay, but that he believes that injustice has been done him, which affidavit shall be attached to and sent up with the tran- script of appeal. And the said defendant shall be required to give good and sufficient bail or the payment of the debt and costs, to be paid, when finally adjudged to be due the plaintiff by the court, in all cases for labor.?’ Persons sued an oath or affirmation that such appeal is not taken Act 1 April 1823 35. Purd. 1141. 1 or entered for the purpose of delay, but in good Phila. 517. 2 Leg. Rec. R. 162. Aet 27 March 1865, Purd. 1141. See 10 Phila. 80. 43W.N. 0. 325. 5 2 Kulp 369. 14 Luz. L. Reg. 435. ® Pamph. 159. See L L. Law Rev. 251. _ The act 2 March 1868 provides, that in all cases in which judgments shall be rendered by any alderman in the city of Lancaster, or justice of the peace in the county of Lancaster, no appeal shall be allowed, unless the appellant, his agent or at- torney, shall make oath or affirmation, to be filed in the cause, that he has reason to believe that injustice has been done him, and that the same is not intended for delay merely: Provided, That this act shall not apply to parties not residents of Lancaster county. Pamph. 256. See 1 L. Law Rev. 169. The act 23 February 1870 makes a similar provision for Dauphin county. Pamph. 221. And see act 18 May 1871, as to appeals in Allegheny county. Pamph. 938. The act 26 March 1868 pro- vides, that no appeal shall be taken or allowed from any judgment of a justice of peace in the sounty of Cameron, uvless the party, his or their agent or attorney, appealing, shall, at the time he or they shall take such appeal, take and subscribe faith, and because he or they verily believe that injustice has been done to him or them (as the case may be), and that he or they (as the case may be) has a just and legal defence to the plain- tiff’s demand, or is entitled to more than the amount of the judgment rendered by the justice ; which said oath or affirmation shall ke filed with the justice and entered upon his docket, and also annexed to the transcript and filed therewith. Pamph. 495. This is extended to Venango county by act 11 March 1879, Pamph. 397; but appears to be supplied by act 5 April 1870, Pamph. 931. The act 11 March 1860, is extended to Erie and Colum- bia counties, by act 23 March 1872. Pamph. 524. And see act 28 February 1870,as to Luzerne county. Pamph. 269. 7 Act 20 April 1876. Purd. 2074, See 2 Chest. Co. R. 63. The supreme court have said, that this is class legislation, and where one man claims a right that is not common to citizens generally, every requisite to bring the case within the act should appear on the docket of the justice, clearly and not argumentatively. 104 Penn. St. 4. 122 ACTIONS AT LAW in a representative capacity are not embraced by this act. It is prospective as to future judgments.’ ; The act of 1810 provides, that upon any such appeal from justices of the peace, the cause shall be decided on its facts and merits only; and that no deficiency of form or substance in the record or proceedings returned, nor any mistake in ‘the form or name of the action, shall prejudice either party in the court to which the appeal shall be made. an The costs on appeals hereafter entered from the judgments of the justices of the peace and aldermen shall abide the event of the suit, and be paid by the unsuc- cessful party as in other cases: Provided, That if the plaintiff be the appellant, he shall pay all costs which may accrue on the appeal, if in the event of the suit, he shall not recover a greater sum or a more favorable judgment than was rendered by the justice. And provided also, That if the defendant, either on the trial of the cause before the justice or referees, or before an appeal is taken, shall offer to give the plaintiff a judgment for the amount which the defendant shall admit to be due, which offer it shall be the duty of the justice and of the referees to enter on the record, and if the said plaintiff or his agent shall not accept such offer, then and in that case, if the defendant shall appeal, the plaintiff shall pay all the costs which shall accrue on the appeal, if he shall not, in the event of the suit, recover a greater amount than that for which the defendaut offered to give a judgment; and in both cases, the defendant’s bill shall be taxed and paid by the plaintiff, in the same manner as if a judgment had been rendered in court for the defendant.‘ This act applies to appeals in cases of trespass and trover.5 A plaintiff is enti- tled to recover full costs, although the amount finally recovered be not so great, either as the judgment of the justice, or the award of arbitrators out of court, from each of which the defendant appeals.® So, if the defendant appeal from the judg- ment of a justice in his favor, for a sum certain, and on the trial there is a verdict and judgment for him for a less amount, he is, nevertheless, entitled to full costs.’ But if the defendant recover judgment before the justice, for a sum certain, and the plaintiff appeal, and the award of arbitrators in ‘court be “‘ no cause of action,” neither party can recover costs.® And where the justice gave judgment for the defendant for $17.34, from which the plaintiff appealed, who, on a rule of reference entered by him, obtained an award in his favor for $5, from which the defendant appealed ; and upon a trial in court, there was a general verdict for the. defend- ant, it was held, that the defendant was entitled to judgment for the costs which had accrued prior to the appeal from the judgment of the justice.® A tender of judgment, in order to exempt the defendant from the payment of costs on appeal, may be made by the defendant’s agent, in his absence." A tender made after the appeal is taken, though before the justice has made out his tran- script of appeal, is too late." But it may be made at any time before the appeal is taken, though the plaintiff be not present, A tender before the justice of a sum of money equal to the amount recovered, is not sufficient ; nor is a tender of such sum, together with the costs accrued.* The record is the only evidence of a tender of judgment before the justice ;* it is not sufficient that it appear in his certificate to the transcript."* But if such offer be entered upon the record, it is error to receive evidence that it was conditional in its terms.” The whole proceeding in case of appeal shall be certified to the prothonotary of the proper county, who shall enter the same on his docket, and the suit shall from 1100 Penn, St. 506. 82W.& 8S. 36. 225 Pitts. L. J. 120. ‘ ® 6 Penn. St. 463. And see 22 Ibid. 298, As 8 Purd. 1141, See 5S. & R. 544. 10 Ibid. 121. co what is a more favorable judgment, where tho 12 Ibid. 292, 3 Wh. 419. 2W.131. 4 Ibid. 329. plaintiff is the appellant, see 2 Penn. St. 65. 39 7 Ibid. 48, 180. 4 W.& 8.327. 8 Ibid. 342. 11 thid. lll. 66 Ibid. 162. 1 P. & W. 23. 2 Clark Penn. St. 147. 13 Ibid. 60. 14 Ibid. 69. 17 W. 24. 3 Ibid. 41. N.C. 253. A voluntary nonsuit, in acase in which 10 48 Penn. St. 128. the justice had no jurisdiction, is not a bar to 1 1 Ibid. 188. another suit. 16 W. N.C. 348. 126 W. 494. ‘ Act 9 April 1833. Purd. 1140. See 1 Wood. 78. 1B ot W. 389, a ge an 4 4 Wh. 78 31 Penn. St. 424, 16 29g 6 7 W. 235. 5 Ibid. 508. 16 eo ieee Bt. 86. 1 7W.&S.313. 4W 389. ave 15 Ibid. 41. ACTIONS AT LAW. 123 thence take grade with, and be subject to the same rules as uther actions, when the parties are considered to be in court ; and the costs accrued before the justice shall await the event of the suit. After the appeal is filed, the proceedings in court are de novo as to the declaration, pleadings and evidence; the cause of action must, however, continue the same ;? and nothing can be recovered in court which could not have been recovered before the justice, except the intermediate interest.’ On appeal, the defendant cannot defalcate a claim beyond the jurisdiction of the justice.‘ The form of action may be changed on appeal, provided the cause of action remain the same.® A plaintiff cannot discontinue his own appeal, so as to authorize him to proceed on the original judgment. A defendant cannot take both an appeal and certiorari ;* but he may abandon his appeal, before filing the tran- script, and resort to his remedy by certiorart.® V. OF THE CERTIORARI. The judges of the courts of common pleas, within their respective counties, shall have power to issue writs of certiorari to justices of the peace, and other inferior courts, not of record; and to cause their proceeding to be brought before them, and right and*justice to be done.® But no writ of certiorar? issued by or out of the supreme court to any justice of the peace, in any civil suit or action, shall be available to remove the proceedings had before such justice.” A certiorari is a writ of error in everything but form." It may issue from the common pleas, when- ever a new jurisdiction is conferred upon magistrates, and the proceeding is summary." But the statute does not oust the jurisdiction of the supreme court in the proceedings of justices under the landlord and tenant act ; nor in proceedings to recover possession by a purchaser at sheriff's sale; nor in a prosecution for a penalty under the road laws.% But a proceeding under the stray law is within the jurisdiction.’ And so is an action before the mayor of Philadelphia, to recover a penalty for a breach of ordinance. \ Hither party shall have the privilege of removing the cause, by writ of certiorari, from before any justice : whose duty it shall be to certify the whole proceeding had before him, hy sending the original precepts, a copy of the judgment, and execu- tion or executions, if any be issued ; but not the evidence.* The court may permit the justice to amend his transcript.” No special allocatur is required for the main- tenance of such writ. But to operate as a supersedeas, the party suing it out, must give bail as on a writ of error, which may be taken by the prothonotary.” The party suing out the writ is also required to make oath or affirmation, that it is not for the purpose of delay, but that in his opinion the cause of action was not cognisable before a justice, or that the proceedings proposed to be removed are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige him to pay more money, or to receive less from his opponent, than is justly due; a copy of which affidavit is to be filed in the prothonotary’s office.* The prothonotary , is authorized to administer the oath or affirmation, with the same effect as if made before a judge.* The affidavit and recognisance may be made and entered into by 1 Act 20 March 1810 3 4. Purd. 1140. 19 1 Ash. 64. 6] Penn. St. 491. 21 Binn. 219. 3 Ibid. 45. 20 1 Chest. Co. R. 137. But the constable will 108. & R. 227. Seel W. &S. 301. not be permitted to amend his return to the sum- 4 48 Penn. St. 456. mons. 2 Kulp 270. 52W.14. 1R. 370. 21 Act 26 April 1855 32. Pamph. 304. This act 6 10 Penn. St. 70. 3 W. 46. is constitutional. 67 Penn. St. 149. A special 7 1 Brewst. 406. allocatur is necessary for the review of a justice’s 8 2 Chest. Co. R. 497. judgment for a fine imposed by a municipal ordi- 5 Const. art. V. 2 10. nance. 1 Kulp 454. But see 2 Del. Co. R. 469, 10 Act 20 March 18103 24. Purd. 793. where it was held, that the act of 1855 applies to 11R, 321. 3P.& W. 24. 9 Penn. St. 216. all cases of civil proceeding before a justice. 12-1 Brewst. 411. 22 2 Phila. 68-9. 6 L. Bar 50. Petersdorff on 3 4 Binn. 185. 38. & BR. 95. Bail 434. It was a eupersedeas at common law. 14 100 Peun. St. 429, 43 Penn. St. 372. And in landlord and tenant 1 76 Ibid. 465. cases, in Philadelphia, a certiorari, with bail, is 6 2R. 20. made a supersedeas by act 24 March 1865. Purd. " 5 Ibid. 119. 1169, 18 Act 20 March 1810 $22. Purd. 793. Notice 2 Act 20 March 1810 3 21. Purd, 794. to the opposite party of the issuing of the certio- 4 Act 3 February 1817. Ibid. 795. sari is not requisite. 16 W. N.C. 495. 124 ACTIONS AT LAW. the party’s agent or attorney.! And in case of a corporation, the affidavit must be made by the president or other chief officer thereof, or in his absence, by the cashier, treasurer or secretary? This extends to all corporations <* and is not repealed by the act of 1832.4 The affidavit must substantially follow the words of the act.5 : : The act of 1810 further provides, that no judgment of a justice shall be set aside in pursuance of a writ of certiorari, unless the same is issued within twenty days after judgment was rendered, and served within five days thereafler; and no exe- cution shall be set aside, in pursuance of the writ aforesaid, unless the said writ is issued and served within twenty days after the execution issued.® If this pro- vision be not observed, the court will not look into the judgment, even if it do not appear from the record that the summons was served, if, within twenty days, the defendant had knowledge of the proceedings, and applied to have the judgment opened." If, however, it be apparent on the face of the record, that the justice had no jurisdiction, or that the summons was not served in the manner directed by the act of 1810, and the defendant did not appear, the court will reverse the pro- ceedings, on certiorari, notwithstanding more than twenty days may have elapsed before the issuing of the writ ;* where there is no legal service of the process on the defendant, he is not in court, and all the subsequent proceedings are erroneous and void® But, in such case, the party must satisfy the court that his application was made within twenty days after the fact of the entry of the judgment came to his knowledge." The fact that notice was not given may be proved by parol.! A judgment obtained by any trick or fraud ought to be reversed, if the certiorari be taken out within a reasonable time after it is discovered.” The act further provides, that the proceedings of a justice of the peace shall not be set aside or reversed, on certiorari, for want of formality in the same, if it shall appear on the face thereof, that the defendant confessed a judgment for any sum within the jurisdiction of a justice of the peace, or that a precept issued in the name of the commonwealth of Pennsylvania, requiring the defendant to appear before the justice, on some day certain, or directing the constable to bring the defendant or defendants forthwith before him, agreeable to the provisions and directions contained in the act, and that the said constable, having served the said precept, judgment was rendered, on the day fixed in the precept, or on some other day to which the cause was postponed by the justice, with the knowledge of the parties ; and no execution issued by a justice shall be set aside for informality, if it shall appear on the face of the same, that it issucd in the name of the common- wealth of Pennsylvania, after the expiration of the proper period of time, and for the sum for which judgment had been rendered, together with interest thereon, and costs, and a day mentioned on which return is to be made by the constable, and that the cause of action shall have been cognisable before a justice of the peace. And the judgment of the court of common pleas shall be final on all proceed- ings removed as aforesaid, by the said court, and no writ of error shall issue thereon.¥ On the hearing of a certiorari to a justice, every reasonable presumption will be made in favor of his proceedings, consistent with the record.* Merely formal errors will be disregarded.'® If the proceedings appear on the face of the transcript 2. Purd. 791. 4, Ibid. 101 Ash. 185, 1 Phila, 439, Purd. 709, note a, ll 19 Penn. St. 495. 12 Tbid. 3 Phila. 258. + 27 March 1833 ; 1 Kalp 341. 1 Ao 2 Act 22 March 1817 38S. & BR. 517. 414 Penn. St. 442. 5 See 2 Bro. 217. 11. & H. Pr. 3891. 3 Bright. Dig. 3009, pl. 25. For form of affidavit, see Gray- don’s Forms 38, 6 Purd. 794. This does not apply to an action, fora penalty. 128. & R. 53. 71 Ash. 135, 8 89 Penn. St. 460. And see 1 L. Law Rev. 141. 9 19 Penn. St. 495. 5 Clark 350. 1 Pitts. 271. 21 Leg. Int. 340. 29 Ibid 12. 8 Phila. 636. 10 Thid. 482. 2 Luz. L. Obs. 28. 2 Luz. L. Reg. 105. 2 Pears. 360. Purd. 709, note a. In one case a magistrate’s judgment was reversed, for want of jurisdiction, after a lapse of ten years. 15 W.N. C. 30. 18 Act 20 March 1810 3 22. Purd. 793, See 2 Wood. 104. 107 Penn. St. 346. The act of 1879, enlarging the jurisdiction of justices to $300, does not affect the finality of the judgment, on certiorari, 3 Penny. 85. 106 Penn. St. 458. M2 Clark 169. 10 UL. Bar 75. 1 Kulp 272, Thid. 493, 10 Luz. L. Reg.76. And see 4 Y. 373. 60 Penn. St. 107. 1 Ash. 153. Ibid. 221. In an action for the breach of a penal ordinance, the transcript must set forth the offence and ordi- nance violated with sufficient clearness and pre cision, 1 L. Law Rev. 3. And see 1 Wood. 408 1) 2 Ash. 120, 2 Kulp 317. \ ACTIONS AT LAW. 125 to be regular, and that he has acted within the sphere of his jurisdiction, parol evidence will not, in general, be admitted! But the court may, to prevent injustice, make inquiry into the evidence given before the magistrate? To estab- lish corruption or partiality, or the refusal to hear testimony, parol evidence is necessarily admissible; and there may be cases in which the absence of jurisdiction can be established in no other way; as, where one justice undertakes to re-examine what has already been determined by another; otherwise, the court cannot go out of the record.’ But the parol evidence must relate to the conduct of the justice, not to that of a party. The court will notice a substantial and fatal error in the proceedings, although the counsel have omitted to make it a special exception, when it is deemed essential for the purposes of justice. But they have no power to direct an issue to try disputed facts arising on a certiorari® Matters dehors the record must be brought before the court by deposition, not by ex parte affidavit." The provision that the judgment of the common pleas shall be final, only applies to a judgment on a certiorari issued under the act of 1810; where a subsequent act confers jurisdition on justices of the peace, to proceed in a different manner from that directed in that act, the judgment of the common pleas on certiorari, may be re-examined by the supreme court.® The act further directs that the court shall, at the term to which the proceedings of the justices of the peace are return- able, in pursuance of writs of certiorari, determine and decide thereon.® This clause is merely directory; it has never been thought that an omission to decide upon a certiorart at the first term, ousted the jurisdiction of the court. In all cases where the proceedings of a justice of the peace shall be removed by certiorari, at the instance of the plaintiff, and the same be set aside by the court, and on the second trial being had, before the same or any other justice of the peace, if judgment shall not be obtained for a sum equal to, or greater than the original judgment, which was set aside by the court, he shall pay all costs accrued on the second trial before the justice of the peace, as well as those which accrued at the court before whom the proceedings had been set aside, including any fees which the defendant may have given any attorney, not exceeding four dollars, in such trial, together with fifty cents per day to the said defendant, while attending on the said court in defence of the proceedings of the said justice of the peace; and in cases where the proceedings of any justice of the peace shall be removed at the instance of the defendant, and be set aside by the court, and it shall appear that he attended the trial before the justice, or had legal notice to attend the same, and on a final trial being had as aforesaid, the plaintiff shall obtain judgment for a sum equal to or greater than the original judgment, which was set aside by the court, he shall pay all costs accrued on the second trial before the justice of the peace, as well as those which accrued at the court before whom the proceedings have been set aside, including any fees, which the plaintiff may have given to any attorney, not exceeding four dollars, to defend the proceedings of the justice, together with fifty cents per day while attending at court on the same; which cost shall be recovered before any justice of the peace in the same manner as sums of similar amount are recoverable ; and in such cases, the legal stay of execution shall be counted from the date of the original judgment rendered by the justice of the peace? This section has no application to the reversal of an execution on certiorart.s Where the certiorari is non-prossed, the record must be remitted to the justice for further proceedings ;® but on affirmance, execution issues out of the court, without a remittitur ;“ so also, on a reversal, the record is not remitted. It is the better 11 Ash. 51. Ibid. 64. 1 Wood. 15. Ibid. 306, 6 10 W. 53. Thid, 354. 74 W.N.C.14. 1 Wood. 291. ? 5 Binn. 29. 1 Wood. 6. Ibid. 291. Purd. 708, 8 23 Penn. St. 521. 25 Ibid. 134. And see 4 note 6. See 2 Dall. 114, And it may be shown Binn. 185. 28. &R.112. 1R.317. 3 Wh.12, by parol that the justice gave judgment by default, 1 W.532. 2 W.N. C. 252. without hearing any evidence. 3 L. Law Rev.178. _§ Act 20 March 1810 25. Purd. 794. 8 1 Ash. 215, 1 Pitts. 271. 3 Ibid. 237. 8 1 65 Penn. St. 34. Phila, 342. 51 Penn. St. 48. 1 Chest. Co. R.467. 1 Act 20 March 1810 3 25. Purd. 794. 2 Luz. L, Reg. 111. 31 Pitts. L.J. 81. 29 Leg. 12 4 W. 450. Tot. 126. 1 Wood. 15. Ibid. 79. Ibid. 291. B3P.& W. 21. 3 Luz L. Reg. 108. 4 Ibid. * 60 Penn. St.107. 51 Ibid. 48. And see 1 114. Pears, 27, 1 Chest. Co. R. 203. 141 Dall. 410. 25 Penn. St. 350. 1 Chest. Co. 5 2 Pears. 265, 1 Wood. 6, 29 Leg. Int. 12. R. 100. And see 1 Ash. 152. 29 Leg. Int. 12. 16 15 Phila, 308. 126 ACTIONS AT LAW. opinion, that on the reversal of a justice’s judgment, on certtorart, no costs are recoverable ;! though there are respectable authorities to the contrary.’ VI. PROCEEDINGS SUBSEQUENT TO THE JUDGMENT. 1. Of the Stay of Execution. In all cases where the defendant is a freeholder, or enters the bail required b the act of 1845, and the judgment rendered shall be above five dollars and thirty- three cents, and not exceeding twenty dollars, there shall be a stay of execution for three months ; and where the judgment shall be above twenty dollars and not exceeding sixty dollars, there shall be a stay of six months; and where the judg. ment shall be above sixty dollars and not exceeding three hundred dollars, there shall be a stay of execution for nine months.? Where a judgment is confessed for a sum exceeding one hundred dollars, the stay of execution is for one year. A freeholder is entitled to the stay of execution allowed by the statute, without giving bail. He must show a freehold not merely worth the amount of the judg. ment, or more than the liens upon it, but clear of all incumbrances.’ But he need not show title, as in ejectment; possession under color of title is, in general, all that has been required.® If the freehold be within the jurisdiction of the court, the defendant need only show its existence and value; it then rests on the plaintiff, if he object, to show an incumbrance; but if the freehold be in another county, the defendant must not only show its existence and value, but must produce evidence, by the usual certificates of search, of its being clear of incumbrances,! plea of freehold being entered, the plaintiff may move to dismiss it for insuff- ciency.® But one of several defendants, who has a sufficient freehold, is entitled to the stay, which will avail his co-defendants.® Unless the defendant plead his freehold or enter bail, the plaintiff is entitled to immediate execution on his judgment. But if the defendant subsequently appeal and plead his freehold, it is the duty of the justice to supersede the execution, on payment of the costs which have accrued on the execution.” After a- plea of free- hold, execution cannot issue, without calling on the defendant to justify." Where a judgment by default is opened, and a rehearing granted, if the former judgment be confirmed, the stay of execution runs from the day on which the last judg- ment was entered. And if any executor or administrator shall declare before the justice, after judgment against him, that he has not sufficient assets to satisfy such judgment, it is made the duty of the justice forthwith to transmit the record of his judgment to the prothonotary of the court of common pleas, to be entered on his docket, and the said court is required to adjudge and decree thereon, and to appoint auditors to ascertain and apportion the assets, as in other cases! The bail in all cases where bail is now required for the stay of execution, shall be bail absolute, with one or more sufficient sureties, in double the amount of the debt or damages, interest and costs recovered, conditioned for the payment thereof, in the event that the defendant fail to pay the same at the expiration of the stay of execution.* The defendant is entitled to enter bail for stay of execution, after the lapse of twenty days, if an execution have not actually issued.S But it is too late to enter bail for stay, after the money has been made on an execution, though the twenty days have not elapsed.* Bail for stay of execution cannot be stricken 12 W.N. 0.16. 2 Chest. Co. R. 488. Ibid. Pr. 3 1036. 489. 14 Luz. L. Reg. 515. Bartram v. Atkinson, 6&1. & H. Pr. @ 235. Com. Pleas, Phila. 1858. And see 5 Binn. 204, T Ibid. 2M, 342. 9 L. Bar 185. 1 Wood. 140. This is the editor's 8 2M. 342. 1 Phila. 204. 1 T. & H. Pr. g 1036, opinion, though the contrary decisions are cited, 9 65 Penn. St. 85. : See 2 Chest. Co. R. 488. . 10 Phila. 506. 2 Kulp 50. And see15 Phila, 308. 8 Act 24 June 1885. Purd. 1142, This act does not apply to judgments obtained for wages of manual labor. * Act 20 March 1810 3 14. Purd.1127, It seems, that the costs may be added to the amount for which judgment is rendered, in regulating the duration of the stay of execution. 2 Clark 328. § 6 Binn. 253. Seel W.N.C.20. 17. & H. 10 1 Ash, 407, 1 2W.N.C. 488; contra, 2 M. 347. 12 Com. Pleas, Phila. 1815. 8 Act 20 March 1810 34. Purd, 1141. M4 Act 20 March 1845, Ibid. 1143. 18 2 Binn. 195. And see 128. & R. 24, 16 7 W. 337. If bail be entered within the twenty days, but after execution issued, the defendaat anes py the costs of the execution. 24 Pitts, L ACTIONS AT LAW. 127 off, without notice to the defendant.! If the bail be compelled to pay the amount of the judgment, the act of 1829 provides, that it shall remain for his use, and may be prosecuted in the name of the plaintiff for the recovery of the amount? ~ In certain cases, no stay of execution is allowed; thus, there can be no stay of execution on any judgment for one hundred dollars or less, if recovered for wages of manual labor ;* nor where the judgment is against the defendant as bail for stay of execution on a former judgment.‘ So, there can be no stay of execution in an action of debt on a judgment of another state;® nor in favor of a garnishee in attachment. Nor in an action at the suit of the commonwealth ; and it seems, that corporations are not entitled to enter bail for stay of execution.® 2. Of the Transcript to bind Real Estate. The prothonotaries of the respective counties shall enter on their dockets tran- scripts of judgments obtained before justices of the peace of their proper counties, without the agency of an attorney, for the fee of fifty cents, which transcripts the justices shall deliver to any person who may apply for the same, and which judg- ments, from the time of such entries on the prothonotary’s docket, shall bind the real estate of the defendants; but no fierd facias shall be issued by any prothono- tary, until a certificate shall be first produced to him from the justice before whom the original judgment was entered, stating therein, that an execution had issued to the proper constable, as directed by this act, and a return thereon that no goods could be found sufficient to satisfy said demand; and any justice issuing an execution on a judgment removed as aforesaid, shall, on the plaintiff producing a receipt for the delivery of such transcript to the prothonotary of the county, to be entered of record, tax fifty cents upon such execution, for the prothonotary’s fees as aforesaid. And no judgment, whether obtained before a justice, or in any court of record within this commonwealth, shall deprive any person of his or her right as a free- holder longer or for any greater time than such judgment shall remain unsatisfied, any law, usage or custom, to the contrary notwithstanding? Under this act, where the defendant pleads his freehold in stay of execution, the plaintiff can secure himself, by entering up his judgmevt in the prothonotary’s office, where it immediately becomes a lien upon the defendant’s lands within the county. Such transcript is, as regards real estate, virtually a judgment of the court; and may be so recited in a seire facias.” The court has no power, in general, to strike off such transcript,” or to open the judgment, and let the defend- ant into a defence.“ But the court has a discretion to stay an execution issued thereon, until further order. And where the judgment has been reversed, on cer- tiorari, the court may strike off the transcript.® So, also, where the judgment appears, on the face of the transcript, to have been obtained without service of process.” But the court will not strike off an old judgment, so entered; the plain- tiff will be put to his scire factas.% If, however, the transcript was filed more than nineteen years after the judgment was rendered, and the justice was not called, nor the docket produced, and there was nothing to show whether an execution had ever been issued by the justice, the jury may infer payment from circumstances and lapse of time.4® Notwithstanding the filing of a transcript, the record remains before the justice for further proceedings.” The transcript is not evidence to show 121 Pitts. L. J. 76. 2 Act 23 April 1829. Purd. 1143. 3 Act 14 May 1874. Ibid. 830. 2 Clark 357. 9 Phila. 559. 10 L. Bar 152. 12 W. N.C. 238. & 8. 170, 131258. & R. 72. And see 1 1 Chest. Co. R. 173. W.N. C. 510. 1419 Penn St. 495. 52 Ibid. 431. 1W.N.C. * Act 25 April 1850 3 28. Purd. 830. 159. See 1 P.& W.20. 3 Ibid. 98. 15 W.N, 52 Am. L, Reg. 446. C.171. 10 Leg. Int. 46. 7 Phila. 407. 24 Pitts. 61 Phila. 284. L. J. 9 9. 15 38 Leg. Int. 262. The proper practice is, to take an appeal or certiorari. 41 Ibid. 338, 16 2W. N.C. 274. 5 17 13 Phila.550. See also 7 Leg. Gaz.174. And 14 Ibid. 421. _81 Pears. 113, 9 Act 20 March 1810 310. Purd. 1143, The party applying for a transcript must pay all the costs due in the cause, unless he make affidavit of his inability to pay the same. Act 24 June 1885. Purd. 1143. See act 9 May 1889. Purd. 1144, as to execution. : 101 Ash, 408. ugSs, & R. 479. 23P,& W.98. 1 Ibid. 20. 3. W. 381. 2 W. under the act of 1885, the court may strike off the judgment for error apparent on the face of the record. 43 Leg. Int. 26. 18 1 Pears. 79. And see 12 W. N. C. 238. 19 12 Penn, St. 312. 2 ] Binn. 881. 12S. & R. 72. 19 Penn. St. 498 128 ACTIONS AT LAW. a former recovery. Nor does it create a lien, if an appeal be entered within the twenty days? And when judgment has been entered on a justice's transcript, no other judgment can be entered by transcript from the same record* An attachment execution may issue on such judgment.‘ ; ¢ To authorize the prothonotary to issue a i. fa. on the judgment, a certificate is un- necessary, if the transcript show that an execution has been issued and returned ‘‘ no goods.’’® A scire facias may issue, without a certificate; and ona judgment on the scire facias, execution may issue from the common pleas.® A fiert ‘ facias may be issued against personal property upon a justice's transcript filed by virtue of the act 24th June 1885, which provides that the judgment in the common pleas entered thereon, shall have all the force and effect of a judgment originally obtained in the court of common pleas. On filing a transcript in the common pleas, in addition to the fee of fifty cents, there is a state tax of twenty-five cents, which is to be paid by the plaintiff, without recourse to the defendant." 3. Of the Execution. The justice is authorized by the act of 1810, to receive the amount of the judgment, and to pay the same over to the plaintiff, or his agent, when required; and his omis- sion to do so is a misdemeanor in office. Butif the amount of the judgment is not paid to the justice as aforesaid, he is required to grant execution, if required by the plaintiff or his agent, thereupon, if fora sum not exceeding five dollars and thirty- three cents, forthwith, and for any further sum, after the time limited for the stay of the same; which execution shall be directed to the constable of the ward, district or township, where the defendant resides, or the next constable most convenient to the defendant; commanding him to levy the debt or demand, and costs, on the defend- ant’s goods and chattels, and by virtue thereof, shall within the space of twenty days next following, expose the same to sale, by public vendue, having given due notice of the same, by at least three advertisements, put up at the most public places in his township, ward or district, returning the overplus, if any, to the defendant: Pro- vided, That executions against executors or administrators shall only be for the assets of the deceased.® The justice is to issue execution, if required by the plaintiff or his agent; he has no right to do so of his own motion; he cannot act as the plaintiff's agent in the collec- tion of debts, and take jurisdiction of suits for their enforcement; to do so amounts to a misdemeanor in office."° Suit cannot be brought upon a promissory note, before a justice of the peace to whom it has been indorsed for collection. The execution is to be directed to the constable of the ward, district or township where the defendant resides, or to the next constable most convenient to the defendant. Under this clause, it is the universal practice for justices to issue their executions to any constable within the county ;” in general, the justice is to judge who is the constable most con- venient to the defendant.% But he cannot compel one who is, not the constable of the proper ward, and clearly not the constable most convenient to the defendant, to execute his process.* An execution directed to ‘‘ any constable of the county,” is not void; it may be executed by the proper officer, at his own peril.® By statute, the justice is authorized to indorse on the execution the fees for the return thereof, as well as for issuing the same.'® . 138. & R. 54. not exceeding sixty dollars, 75 cents; if exceed- 7 W. 540. ing sixty and not exceeding one hundred dollars, 3 3 Gr. 259. I dollar; and a like amount on each one hun- sen aaa arr aoe hg 83. 2 Clark dred up to three hundred.” . See id. a Me CO. 237, ® Act 20 March 1810312. Purd. 1144. 5 6W. 4&8. 343. Act 24 June 1885. Purd. 10 148. & R, 158, é si 1144. By the act 9 May 1889, a certificate is not necessary where the judgment is for $100. 6 3 W. 381. T Purd. 1143, note d. 8 Act 20 March 1810 311. Purd. 1144, By the fee-bill of 23 May 1893, P. L. 117, the magis- trates of Philadelphia and all justices are enti- tled to the following fees for this service, viz.: “receiving the amount of a judgment and pay- ing the same over, if not exceeding ten dollars, 25 cents; if exceeding ten and not exceeding forty dollars, 50 cents; if exceeding forty and 149 Mich. 505. In Wistar v. Conroy, at June Term 1869, the court of common pleas of. Philadelphia, reversed the decision of an alder- man, in a landlord and tenant case, on the ground that the magistrate had signed the notice to quit, as the plaintiff's agent. 13°78. & R. 354. 18-13 Ibid. 336. 14 106 Penn. St. 643. 15 1 Ash, 218, 18 Act 23 April 1829 22. Purd. 1145, ACTIONS AT LAW. 129 It is provided by act of assembly, that no execution shall be issued on a judg- ment rendered before a justice of the peace or alderman, after five years from the rendition of such judgment, unless the same shall have been revived by sctre facius or amicable confession! The power of issuing a setre facias is appurtenant to’ that of issuing executions, and included in it. An execution issued more than five years from the rendition of the judgment, without a scire facias, is irregular? But no person except the defendant can take advantage of an irregularity in the issuing of an execution. If an appeal have been taken, the justice may issue execution after the return-day, if satisfied that the appeal has not been perfected.® A misrecital in the body of the execution does not render it void; nor will the constable be a trespasser in executing it® It is not requisite that the execution should mention a special return-day ; the law makes it returnable within twenty days from its date.” A justice has power to supersede his execution, and such supersedeas will exonerate the constable,® and release the surety in a bond for the forthcoming of the goods levied on, whether the full costs be paid or not. The constable, on receipt of an execution, is bound to levy on and sell, by public vendue, sufficient goods and chattels of the defendant to satisfy the demand of his writ.° If he sell any portion of the goods without levy or advertisement, he is liable in damages." And a sale to the plaintiff, no person but the constable being present, is illegal and void." If there be any overplus, the statute requires the constable to return it to the defendant. But his safest course is, to pay the overplus to the justice, who, by a subsequent act, is bound to receive it, and pay it over to the defendant, “without any fee for making such payment.” No execution issued upon a judgment on demand arising upon contract express or implied, shall contain a clause authorizing the arrest or imprisonment of the person of the defendant, unless it be shown by affidavit, to the satisfaction of the justice, either that such judgment was for the recovery of money collected by a public officer, or for official misconduct,” And in cases of tort cognisable before a justice, such clause may be inserted in the execution. But though the demand sound in tort, yet if the record show a claim on contract, an execution against the body is erroneous.® Execution may issue against the body, on a judg- ment in a penal action, unless the statute direct the penalty to be recovered “as debts of like amount are by law-recoverable.’"6 In cases where it is allowed, the act provides that the execution shall command the constable, for want of sufficient distress, to take the body of the defendant into custody ; and him or her convey to the common jail of the county ; and the sheriff or keeper of such jail is thereby directed to receive the person or persons so taken in execution, and him, her or them safely keep, until the sum recovered, and interest thercon accrued from the date of the judgment, together with costs, be fully paid; and in default of such keeping, to be liable to answer the damage to the party injured, as is by law pro- vided in case of escapes.” In an action of debt for an escape on final process, the plaintiff is entitled to recover his whole debt and costs ;* and the insolvency of the prisoner is no defence. If the jailer permit a prisoner to escape, and the sheriff be made responsible, the jailer is liable even, though he acted in good faith, and under the advice of counsel ;” and so are the jailer’s sureties,” 1 Act 5 May 1854, Purd. 1145, An attachment- execution may issue without a secire facias. 5 Penn. St. 115. 1 Chest. Co. R. 239. 2 § Binn. 58. 3 3 Gr. 259. And see 2 Clark 401. 4 1 Pears, 36. 5 7 Phila. 517. 6 2 W. 424, ’ 1 Ash. 58. But as a contrary decision was made by Judge Franklin, in the court of common pleas of Lancaster, it is customary to insert a special return-day in the writ. 81P.& W. 61, 93W.& S. 447. 10 No express authority is given here, or else- where, to the constable to depute any person to serve an execution ; and if he were so to deputize another, he, the constable, would be “liable to answer the damages to the party injured,” if the injury had been caused by the neglect or miscon- duct of the person whom he had deputized. 11 1 Penn. St. 238. 12 15 Ibid. 90. 13 Act 28 March 1820 3 2. Purd 1145. 14 Act 12 July 1842 3 23. Ibid. 16 3 Leg. Gaz. 260. 16 Purd.1130,notep. 7 Leg. Gaz. 293. And gee 1 Dall. 135. 4 Y. 237, 240. 17 Act 20 March 1810 312. Purd. 1145 1 3Y.17. 4 Ibid. 47. 5 W. 141. 1297S. & R. 273. 59 Penn. St. 320. 20 5 W. 141. 219 Penn. St. 451, 130 ACTIONS AT LAW. 4, Liability of the Constable. On the delivery of an execution to any constable, an account shall be stated in the docket of the justice, and also on the back of the execution, of the debt, interest and costs; from which the said constable shall not be discharged, but by producing to the justice, on or before the return-day of the execution, the receipt of the plaintiff, or such other return as may be sufficient in law.! The first act to charge the constable is the statement on the docket of the debt, interest and costs? It will frequently happen, that after the issue, and before “the return-day of the execution,” while that process is in the hands of the constable, the defendant will call at the office to make payment. The account being “ stated in the docket,” the justice will have nothing to do but turn to the case, ascertain the exact amount, and, if required, satisfy the defendant as to the several items of which it is made up. Whenever the account is paid to the justice, let him, before he closes his docket, write at the foot of the case, ‘Money paid into office.” ‘Received satisfaction.” When he pays the plaintiff, or his agent, he should require him to subscribe his name under the above receipt. It is only by a strict compliance with the directions of the statute that the constable can be discharged from his liability to pay ‘the debt, interest and costs,” on the back of the execution. He must, “‘ on or before the return-day of the exe- cution,” which day should always be indorsed on the execution, produce to the justice “ the receipt of the plaintiff, or make such other return as may be sufficient - in law.” He may indorse on the execution, “no goods.” But if the constable shall make ‘‘a false return,” a return unfounded in fact,—for example, if he should return ‘no goods,” and the plaintiff subsequently prove that there were sufficient goods on which the constable might have levied, in such a case, or any similar case of neglect or misconduct, the constable and his bail would be liable to the plaintiff for the “debt, interest and costs,” on the execution, on which he had made such “ false return.” The mere omission to return the execution within twenty days will not render the constable liable, if he has sufficient cause for the delay.’ Of the sufficiency of the return, the justice must judge in the first instance, but his decision is subject to review ; and the return must be in writing.* In cise of a false return, or in case the constable does not produce the plaintiff's receipt, on the return-day, or make such other return as may be deemed sufficient by the justice, he shall issue a summons, directed for service to a constable, or #o some other fit person who shall consent to serve the same, and having so consented, by accepting of such process, shall be bound to execute the same, under a penaly of twenty dollars, to Le recovered as other fines are recoverable by this act; bat should not a constable or other fit person conveniently be found to serve the process as aforesaid, the justice shall direct it to a supervisor of the highways of the town- ship, ward or district where such constable resides, whose duty it shall be to serve the same under the penalty aforesaid—commanding the constable to appear before him on such day as shall be mentioned in the said summons, not exceeding eight days from the date thereof, and then and there show cause why an execution should not issue against him for the amount of the first above-mentioned execution; and if the said constable either neglects to appear on the day mentioned in such sum- mons, or does not show sufficient cause why the execution should not issue against him, then the justice shall enter judgment against such constable for the amount of the first above-mentioned execution, together with costs; on which judgment there shall be no stay of execution; and upon application of the plaintiff or his agent, the said justice shall issue an execution against the constable for the amount of such judgment, which execution may be directed to any constable of the county, or other fit person accepting thereof, or to a supervisor, as aforesaid, whose duty it shall be to execute the same: Provided always, That nothing in this act con- 1 Aot 20 March 1810 312. Purd. 1145, 56 W. & S.534. 17 W. N.C. 487. See 1 Ash. 2 The account may be stated in this manner: 160. Debt; oe ns. we we ws SEOST 4 5 Ibid. 457. 8 W. 220. 4 Whart. 56. And see Interest, . . . 2» ~ 2.70 1 Ash. 160. 1M. 210. 2R.199. Costs, . . «2... 6158+ $50.65, ACTIONS AT LAW. 131 tained shall in any manner impair or alter the proceeding as heretofore established with regard to insolvent debtors, and their discharge on a full surrender of their property.” Tn an action against a constable for not returning an execution in due time, it is not competent for him to prove that the defendant had no property ;? but it is a good defence, that the judgment was paid before the execution was issued. The constable may appeal from the judgment against him ;* and so may the plaintiff.® A previous execution by the justice is not necessary to authorize the issuing of an execution upon a transcript of the judgment filed in the common pleas. Where any constable shall refuse or neglect to pay over to the defendant or defendants, his or their agent or legal representatives, the overplus money which he or his deputy may have made or received upon any execution or executions, then and in such case, the party or parties aggrieved may apply to the alderman or justice of the peace who issued the process, who shall thereupon proceed against such constable in the manner prescribed by the 12th section of the act to which this is a supplement, in cases where the constable makes a false return or neglects to return the execution ; and if, upon such proceedings, the justice shall receive the overplus money, or if it shall be voluntarily paid to him at any time by the constable, he shall, in either case, pay over the same to the defendant or defendants, or his or their agent or legal representatives, without any fee for making such payment.” 5. Docket-entries and Transcripts. All the proceedings had before a justice shall be entered at large by him ina docket or book to be kept by him for that purpose, in which he shall state the kind of evidence upon which the plaintiff’s demand may be founded, whether upon bond, note, penal or single bill, writing obligatory, book-debt, damages on assumption, or whatever it. may be; and the whole proceeding, in case of appeal, shall be certified to the prothonotary of the proper county.® The docket of a justice of the peace is the best evidence to show the cause of action before him; and parol proof is inadmissible, to contradict or vary it.® As justices of peace have not jurisdiction in al cases of contract, it ought to appear, from their docket-entry, what is the nature of the contract upon which the action is founded ; If it do not appear from the record that the justice had juris- diction, the judgment, on certiorart, will be reversed. The docket is no record ;4 but it has the conclusiveness of one; and parol evidence is inadmissible to contradict or vary it.* It can only be proved by a sworn copy.'4 The magistrate is not bound to enter on his docket the evidence on which his judgment is founded; it will be presumed that it was on legal proof.® He need only state the demand and the kind of evidence produced to support the claim, whether upon bond, note, penal or single bill, writing obligatory, book-debt, dam- ages on assumption, or whatever it may be, so as to enable the court to ascertain the grounds of the controversy, and his decision thereon. But where a suit before a justice is terminated by any act or agreement of the parties, which amounts, directly or indirectly, to a discontinuance of the action, it is part of the official duty of the justice to enter such act or agreement upon his docket, and the docket-entry is evidence of the same.” The record must set forth the plaintiff’s cause of action so as to show the jurisdiction, and be a bar to another suit. If the plaintiff sues as a public officer, the record must show the character of the services 1 Act 20 March 1810 3 12, Purd. 1145. B2W.&S. 377. 24 Clark 452. 17 W.N. C. 437, 4148. & R.440. 7W. 189,192. 4 W. & S,192. 32W.&S. 229. 10 Penn. St. 161. 14 Ibid. 413. 32 Ibid. 539. 4 Act 13 October 1840 3 12. Purd. 377. 1 Phila. 25. 54W. & 8. 278. 15 § Binn. 31. The record need not show that 63 W. 278. witnesses were examined, except in cases of judg- 1 Act 28 March 1820 3 2. Purd. 1145, ment by default. 3 L. Law Rev. 185. 8 Act 20 March 1810 $4, Ibid. 1146, See3 161 Bro. 209. 7 Luz. L. Reg. 191. And see Penny. 98. 103 Penn. St. 449. 1 Wood. 92. Ibid. 286, 14 92 W. & S. 377. Luz. L. Reg. 252. 101 Bro. 339. 11 Phila. 348, 17 21 Penn. St. 66. 116 W. & 8. 50. 18 1 Lack. L. Rec. 398. See 1 L. Law Rev. 3, as 1210 W. 103. to actions for penalties for breach of ordinance. 132 ACTIONS AT LAW. rendered! In trespass, it must show whether it was to real or personal property.? And in a suit against a married woman for necessaries, it must show that the case is within the statute’ It is sufficient, however, that it substantially show the justice’s jurisdiction An adjournment must be entered upon the record, in order to support a subsequent judgment.5 The justice is bound to allow a party to inspect his record ;* and after the entry of judgment, he has no right to alter the record." : ; Tt shall be the duty of the justice, on demand made either by plaintiff or defend. ant, to make out a copy of his proceedings at large, and deliver the said copy, duly certified py him, to the party requiring the same; and if on such demand he shall refuse so to do, it shall be deemed a misdemeanor in office.® An indictment under this section must state a previous tender of the legal fee ;* an averment that the demandant paid to the justice the full amount of money which the latter required, is insufficient; nor will proof, upon the trial, that the demandant paid the precise sum fixed by the fee-bill, cure the defect.! 6. Transcripts to other Counties. If the party defendant shall not reside in the county where a judgment is had against him before a justice of the peace, the person in possession of the docket in which such judgment may be entered, on application to him made by the plain. tiff or his agent, shall’ make out, certify and deliver to such applicant a transcript thereof, and also deliver all evidence in his possession connected therewith, for the fee of twenty-five cents, for the recovery of the amount thereof with costs, before any justice of the peace in any county where the defendant may reside or can be found, as in cases originally brought before him; and the stay of execution shall be counted from the original entry.4 The person in possession of the docket may give a transcript, though not him- self a justice. The fee for this service is fixed at fifty cents by the act of 1860. The justice to whom such transcript is delivered is authorized to proceed on it as in cases originally brought before him; he may issue an execution thereon in all cases where the original justice might have issued one; so, he may issue an attachment-execution on such transcript, whether the defendant be a resident of his county, or not. And in an action to recover the amount of a judgment rendered by a justice of the peace in another county, such certified transcript is prima facie evidence, upon which the plaintiff may recover.® If, however, the original judgment was void for want of jurisdiction, apparent upon the face of the record, the proceeding of the justice to whom it is transferred will be set aside on certiorari." 7. Satisfaction of Judgments. _Any person or persons who shall not, within thirty days after written notice to him, her or them given, of the payment of any judgment, together with costs, in his, her or their favor, before any justice of the peace, either by themselves or their agents, enter satisfaction on the docket or execution of the justice, shall be subject to a penalty of one-fourth of the amount of the debt paid, for the use of the party aggrieved, except where one of the defendants, if there be more than one, shall, by a writing to be filed by him in the office of such justice, within fifteen days after the payment, forbid the plaintiff so to do.® This penalty is recoverable before any alderman or justice of the peace, in the same manner as debts of like amount may be sued for and recovered.* What would be a sufficient service of a 1 10 Phila. 307. ML Act 20 M: 2 1 Chest. Oo. R. 137. Hieacs. : 2 Kulp 35. 2 W. 424. 14 Luz. L. Reg. 491, : 1 vel. ee 100. od 13 W. N.C. 237. 3 Penny. 98. PY . 14 . » 3 i i . 81 Lack. L. Reo. 396, ees T 1 Pears. 36. 171 Luz. L. Reg. 269. ; ice 2 28. Purd. 1148. a Act 20 March 1810 215. Purd. 1146. mee oe 7 Act 4 April 1831 3 1. Ibid. 1147. « ACTIONS AT LAW. 133 summons, is a good service of a notice to enter satisfaction. Actual damage need ‘not be proved, in order to a recovery of the penalty.? VII. Justices’ DOCKETS. The act of 1839 provides, that every justice of the peace or alderman shall, on the expiration of his term of office, deliver over his docket, together with all the notes, bonds, accounts and papers in his possession, touching any judgment or suit entered thereon, to the person who shall be elected and commissioned to succeed him in the ward, borough or township.’ And by the act of 1846, this is extended to all cases of succession in office, whether by death, resignation, removal or other- wise ; and in case of the decease of any alderman or justice, such delivery shall be made by his legal representative.‘ Every justice or alderman who shall remove out of the district for which he is commissioned, shall, upon demand made by any person, deliver or cause to be delivered his dockets, and all official records connected therewith, to the nearest -justice or alderman in his said district; and if any person shall fail, for twenty days, to comply with the provisions of this section, he shall forfeit and pay one hundred dollars, to be recovered by action of debt, for the use of any person who may sue for the same; and shall further be subject to be compelled to deliver such dockets and records, by a decree and attachment against him, which may be made and issued by any court of common pleas, or by any judge thereof in vacation, on application being made therefor by any person; and said court, or any judge thereof in vacation, shall have power, in the same manner, to enforce the delivery of such dockets and records, against any person in possession of the same, and being about to remove out of the state, without making the delivery thereof hereby required, and the same proceedings as are herein authorized may be had, to compel the delivery of all justices’ dockets in the hand of any other person, who has removed, or may remove, or be about to remove, out of the proper district, where such dockets belong In case of the temporary absence of any justice of the peace from his district, it shall be lawful for him, previous to his departure, to deposit his docket, and all papers connected with any judgment rendered by him, with the nearest justice of the peace in the district, who shall be, and hereby is authorized to issue execution or executions on said judgments, in the same form and effect as if such judgment or judgments had been rendered originally by the said nearest justice. A magistrate who shall receive a ‘docket or transcript” from another, should read it with attention, regarding it as @ record of his own proceedings. When ap- plication is made to him to proceed, he should determine what it would be his duty to do, if the case had been so far heard by himself. If the suit had proceeded no further than the issuing of a summons, inasmuch as the defendant would by that summons have been required to appear before another justice than the one before whom the case is now to be heard, if the defendant did not appear at the time appointed aud the plaintiff did, it would be proper to send a notice to the defend- ant, or issue a summons in the usual form, and consider what was thus done as the first step taken in the institution of the suit. If there had been a hearing, and the case stood adjourned, notice to the parties should be given by the justice, if they did not appear at the time to which the case stood adjourned, before he pro- ceeded any further in the suit. If judgment had been entered, the justice before whom the case now lay should apprise the defendant, so that he might have an opportunity, if so disposed, to plead his freehold, or put in special bail, if entitled to a stay of execution, before the execution should be delivered to a constable. It is always better that the justice should take even unnecessary trouble, rather than hazard serious inconvenience to the parties or either of them. If bail should have been entered and the stay of execution is unexpired, nothing is to be done by the justice until it shall expire, and he is called upon by the defendant to pay the money, or by the plaintiff for an execution. In any of which cases, the justice should proceed as if the suit had originally been instituted, and all the proceedings already 131 Penn. St. 469. 4 Act 21 April 1846 3 6. Purd. 1150. 21 Wh. 187. 5 Ibid. 94, Purd. 1150. 3 Act 21 June 1839 310. Purd. 1149. 6 Act 20 February 1833 3 2. Purd. 1149. 134 ACTIONS AT LAW. had, had been had before him. In the clear and emphatic language of the law, ‘ the justice to whom the docket or transcript shall be delivered shall issue process, and proceed thereon, im the same manner and with the like effect, as the justice before whom the proceedings had taken place might have done if he had remained in office,” A justice whose term has expired, and whose place has been filled by election, has no right to retain his docket, and certify a transcript, in order to found pro- ceedings before another justice! And in case of the temporary absence of a justice, no other justice can issue execution on a judgment rendered by him, unless the docket be deposited with such justice; such execution would be void, and the con- stable acting under it a trespasser.2? An execution issued by one justice on the transcript of another justice of the same county, who was at the time in commis- sion, and acting in his office, is void; not being allowed by any act of assembly. A justice has no jurisdiction of a cause of action founded on the judgment of another justice, except as prescribed by the statute; he cannot, therefore, set off such judgment against one on his own docket.‘ ; ‘ Tn all cases where the docket of any acting alderman or justice of the peace shall have been, or may hereafter be destroyed or lost, it shall be lawful for any person or persons interested in any action pending, or judgment had, and who may be desirous to have the same supplied, to apply to such alderman or justice by petition, setting forth the proceeding to be supplied, and verified by affidavit; whereupon the said alderman or justice shall issue a precept in the nature of a writ of summons, which shall be served as in other cases, requiring the defendant in such action of judgment, or his representatives, to appear before such alderman or justice on a day certain, to be named in said writ, not less than five nor more than eight days from the issuing thereof, and show cause why the prayer of the petitioner should not be granted; and in all cases where the facts set forth in such petition shall be denied, it shall be the duty of such alderman or justice to hear the parties and receive testimony as in other cases, as well his own testimony upon affidavit, as the testimony of others, and upon the hearing thereof, if the said alderman or justice shall be of the opinion that the facts alleged in such petition are true, or in case such facts be not denied, he shall order that the said proceed- ings be supplied; and shal] thereupon enter the same upon his docket, which said entries shall have the same force and effect as if the original record had not been lost or destroyed ; and either party may have his remedy by appeal or certiorari, as in other cases. VIIJ. OvurnInE oF PROCEEDINGS, IN A CIVIL SUIT, BEFORE A JUSTICE OF THE PEACE OR ALDERMAN. In giving an outline of the proceedings which generally occur in a suit before a justice or alderman, an example will be given, in the first place, of a case of ordinary occur- rence. Afterwards examples will be given of suits in which objections and difficulties of law or fact arise. i z ames Thompson holds a promissory note, and the protest thereof. The note is as ollows : “S737 qs : Philadelphia, June 12th, 1873. Three months after date, I promise to pay to Joseph Parker, or order, seventy-threeyy dollars, without defalcation, for value received. (Signed,) WM. JACK. (Indorsed,) “JOSEPH PARKER.” ; In September 1879, Thompson, the holder of the note, finding that six years was about to ane since the protest of the note, and, consequently, that che statute of limitations would bar his remedy against the parties whose names are on it, unless suit were brought before the 15th September 1879, determines to bring suit against the maker, William Jack, who has some property ; Parker, the indorser, being insolvent. He goes, therefore, to Magistrate Smith, of the city of Philadelphia, and informs him he wishes to bring suit against William Jack. The magistrate inquires for the residence of Jack, and finds it to be No. 30-North Eighth street, in the city of Philadelphia, where co Penn. St. 168, 1 Pears. 194. 2 Leg. Reo. 5 4 Penn. St. 338. 168, * 46 Penn. St. 519. 2 2 Phila. 2384. 5 Act 30 April 1850, Purd. 1150. ACTIONS AT LAW. 135 upon he issues a summons, returnable on the 16th, between the hours of 10 and 1] o'clock, a. u. [The form of the summons will be found under the title “« Summons.” This summons is put into the hands of G. R., the constable, who having been told the residence of the defendant, calls at his house, and finding him, gives him an exact copy of the original summons. The constable then writes on the back of it these words» “Served personally on the defendant, by producing to him the original summons, and informing him of the contents thereof, September 10th, 1879. G. R., Constable.” The constable then hands the original summons to the magistrate, who administers an oath to him, verifying the truth of the return. The magistrate makes this memorandum on the back of the summons, and under the constable’s return, viz.: “Sworn to the truth of this return, this 12th day of September 1879. R. 8. 8., Mag.” The magistrate then files the summons. DOCKET ENTRY IN THIS CASE. On , 16th September 1879, at 10 o’clock, defendant appears in the magistrate’s office, and the plaintiff not appearing, defendant asks for a nonsuit. The magistrate informs him that the parties are allowed until the expiration of the last hour named in the summons, to appear, which time has not yet elapsed; but that if plaintiff, or his attorney, or agent, should not appear at the expiration of the time so allowed, a nonsuit would be entered. At 11 o’clock, plaintiff appears with his witnesses. The plaintiff, Thompson, produces the promissory note, and calls John Carr to prove the signature of William Jack, the maker and defendant, The witness is sworn. Magistrate—Are you acquainted with the handwriting of William Jack? Carr, the witness.— Yes, I am. Magistrate —How did you become acquainted with it? Witness.—I have seen him write. Magistrate.—Look at the signature to this paper eee him the promissory note), and say if you know that handwriting. Witness.—(After examining the signature.) I believe it to be the handwriting of William Jack, the defendant. ; Magistrate, (to defendant.)—Do you wish to cross-examine the witness ? Defendant, (to witness.)—When and where did you see me write? Witness.—I saw you write a receipt, about three years ago, in your own house, for money I paid you. At another time, about a year ago, you came to my store, and wrote an order for several articles of groceries, which you wished me to send to your house. Some months after, you gave me your note for the amount of the groceries, which was paid when it fell due; and I have seen your writing and signature at other times. Defendant.—Can you swear that that (pointing to the signature on the note on which the suit is brought) is my handwriting? Witness.—I believe that to be your signature. Defendant submits to the magistrate that witness cannot swear that to be his signature, but only swears as to his belief, and that the signature is not sufficiently proved. Magistrate—The witness having shown that he is acquainted with your handwriting, his belief that this is your signature is sufficient. : 2 Taparars (to plaintiff.) —You must also prove the signature of the indorser, Joseph arker. Plaintiff calls James Hall. Magistrate, (to witness.) —Take the book, (handing him a Bible.) Witness.—I affirm. . Defendant.—Are you conscientiously scrupulous about taking an oath? Witness.— am. Magistrate, (to witness.)—You do solemnly, sincerely and truly declare and affirm, that the testimony you will give in the matter now pending before me, shall be the truth, the whole truth, and nothing but the truth: so you affirm. Witness bows assent. ¥ Magistrate.—Are you acquainted with the handwriting of Joseph Parker? Witness.— es. Magistrate.—How did you become acquainted with it? Witness.—By receiving letters from him, and having a bill of exchange on him, which, after accepting, was paid by him to me. Magistrate——Can you say that from these circumstances you are acquainted with his handwriting? Witness.—Yes, 1 can. Defendant.—I submit that inasmuch as the witness has never seen Joseph Parker write, he is incompetent to prove his signature. Magistrate, (to defendant.)—You may cross-examine the witness further as to how he became acquainted with Parker’s handwriting. Defendant, (to witness.)—How do you know that the letters you received from Parker, pele came from him? Witness.—I received them in the course of correspondence with im, Defendant.—How many letters did you receive from him? Witness.—The exact number I cannot tell, but as many as six or seven, I should say. 136 ACTIONS AT LAW. Defendant.—Where are these letters? Witness.—Some of them, I suppose, are lost or mislaid; others are among my papers at my store. : : Defendant.—At what time did you receive the letters? Witness.—I received them during several months, about a year to eighteen months ago. f ; Defendant.—You spoke of a bill of exchange. Who were the parties to that bill, and what was the amount of it? Witness.—It was drawn by John Neal, on Parker, in my favor, payable, I think, at ninety days, for something over $300. I inclosed it in a letter to Parker, who then resided in New York, for his acceptance. He returned it with an answer in a few days, having the acceptance and his signature written on it. Defendant.—Did you ever see Parker write? Witness.—-No. . : Defendant, (to magistrate. )—I submit that, never having seen Parker write, the witness is incompetent to prove his handwriting. Livre : Magistrate.—In order to become acquainted with handwriting, it is not essential to have seen the party write, if the witness has had other sufficient means of knowing it. This witness appears to have had sufficient means of becoming acquainted with the hand- writing of Parker, though he never saw him write. I consider him, therefore, a com- petent witness. . Magistrate, (to witness.)—Look at the name on the back of the note, and say if you ‘ know whose signature it is. Witness. (after examining the name.)—TI believe that to be the signature of Joseph Parker. . Magistrate, (to defendant.)—Do you wish to cross-examine the witness further? De JSendant.—No. Magistrate, (to defendant.)—Have you any witnesses? Defendant.—No. Magistrate—Do you wish to say anything by way of defence? Defendant.—It ap- pears to be more than six years since the note fell due, and the claim is barred by the statute of limitation. Magistrate.—It is true, that it is more than six years, counting from to-day, but it was less than six years counting from the day on which suit was brought, which is the legal time to count from. (To plaintiff.)\—Have you a bill of your claim? Plaintiff.—Yes. (handing in a bill.) of which this is a copy: 1873. Wm. Jack to James Thompson, Dr. Sept. 15. To amount of his promissory note, due this day, and protested for 1879, non-payment, 5 3 , A . ‘ ‘ ‘ ‘: . $73.27 Sept. 16. Interest for six years, say . - 3 ‘ : 5 a - 25.28 Cost of protest, : . 7 : . ‘ . : . ‘ 1.38 $99.98 Magistrate enters judgment for plaintiff for ninety-nine dollars and 4§,. Plaintiff—When can I have execution? Magistrate.—Immediately, if you wish: but if an appeal be taken by the defendant, or bail for stay of execution be entered, within twenty days from this time, the execution must be stayed. Plaintiff.—I shall wait until the expiration of twenty days, before I ask for an execu- tion. Plaintiff then pays the magistrate the costs of suit, and the parties retire. At the expiration of twenty days after judgment, plaintiff calls on the magistrate and desires that execution may issue. The magistrate turns to his docket, and ascertains that no appeal has been taken, nor any bail entered for stay of execution. He therefore fills up an execution. [For a copy, see the title “ Exzcurion.”] The execution is put into the hands of a constable, who proceeds forthwith to the house of the defendant, No. 30 North Eighth street, and informs him he has an execution against him at the suit of James Thompson, for $101.25, and requests it may be paid. Defendant says he has no money, and cannot pay the amount. The constable then makes a levy on so much of the goods or furniture of defendant as will, in his opinion, produce, at moderate auction prices, fully the amount called for by his execution. The defendant claims the benefit of the $300 exemption law, and having selected such articles as he wishes to retain, they are appraised, and $300 set apart for his use. The constable should be careful not to make an excessive levy, that is, to levy on so great a quantity of goods as is beyond all reasonable proportion to the amount of the claim. The con- stable having made his levy, should note on the back of the execution the time when he makes it, and indorse thereon, or on a schedule to be thereto annexed, a list of the articles levied on. : In strictness, the constable might at once remove the articles levied on, to be safely kept, in order that they may be sold, but it is customary to leave the goods on the pre- mises, with or without a watchman, or security, at the discretion of the constable, until the day of sale. If the goods levied on are not forthcoming on the day of sale, the constable is liable to the defendant for the amount called for by his execution. The constable should make out an advertisement in the following form, viz. : ACTIONS AT LAW. 137 CONSTABLE’S SALE. To be sold, at Public Vendue, on Monday the 20th day of October 1879, at 10 o’clock in the forenoon, at the house of John Bob, No. 10 N. Sixth street, ten mahogany chairs, two arm-chairs, a mahogany bureau, and an eight-day clock. Seized and taken in execution, as the property of James Thompson, and to be sold by Philadelphia, October 13th, 1879. ’ Mason Naytsr, Constable. Three of these advertisements at least, should be put up at the most public places of the district, and the sale should be made within twenty days after the time when the execution came into the constable’s hand. The sale must be by public auction, a private sale would be void, and would be set aside on application. The notice or advertisement of sale should be made at least six days before the sale. The terms of sale should be cash on delivery of the goods. Should the proceeds of sale exceed the amount of the judgment, interest, costs and expenses, the overplus should be promptly handed over by the constable to the defendant. If not, the defendant should apply to the justice, who should order the constable to pay the proceeds into his office, and he will pay over the surplus to defendant. he constable should also without delay pay into the justice’s office, or to the plaintiff, the amount of the judgment, interest and costs incurred by the plaintiff, taking plain- tiff’s receipt. He should then make return to the justice, produce the receipt of the plaintiff, and pay to the justice the fees, if any there be, to which he is entitled. Satisfaction may be entered on the justice’s docket by the plaintiff, thus: Received satisfaction, November 12th, 1879. (Signed) James THOMPSON. Or plaintiff may sign a receipt on the docket for the debt, interest and costs, specifying the amount, and the case is determined. A CONTESTED CIVIL CASE BEFORE A JUSTICE OR ALDERMAN. Freperick Haxz, to the use of Cuaries Heirrics, Magistrate’s Court, v. James O’ConNELL. No. 3. September 18th, 1879. Summons issued in the above case. Returnable 24th September 1879, between the hours of 3 and 4 o'clock, p. m. Plaintiff appeared, by his attorney, L. Defendant appeared, by his attorney, S. H. Plaintiff’s attorney stated that the suit was brought to recover $38, due by defendant to plaintiff, on a contract of guaranty, whereby defendant agreed with plaintiff, Hake, to guaranty the payment to Hake, of the rent of the house No. 79 Queen street, belonging to Hake, and occupied by Patrick Ward; that Ward was in arrear $38, and suit was therefore brought against his surety, the defendant, to recover that amount. Defendant's attorney stated that at this stage it was proper he should interpose certain objections to the regularity of the proceedings. He moved that the writ of summons be quashed, because no legal service of it had been made four days before the return of it, and called the constable as a witness. Plaintiff's attorney objects —The constable has already made his return under oath, and indorsement on the back of the writ, which shows that the service was made on the 18th September, more than four days before the return ; this is conclusive :—if the con- stable has made a false return, defendant has his remedy against him. Magistrate.—If the constable has made a mistake in regard to the return, the return may be amended on his application. Constable.—I served the summons on the 18th, on defendant, by leaving a true copy, as I then thought, at his dwelling-house with one of the family, but after making the return, I found that the copy I then left was not a true copy, and this morning I served the defendant with a true copy. Magistrate.—That will not do. You had better apply for leave to amend your return, Constable.—I do so, according to the facts as I have stated them. Magistrate.—W hich is, that you served the summons on defendant on the 24th Septem- ber 1879, by leaving a trwe copy thereof at his dwelling-house with one of the family? Constable.—Yes. Magistrate indorses the amendment on the back of the writ, and swears constable to the truth thereof. Defendant's attorney.—I now move to quash the writ of summons, on the grounds already laid. Plaintiff's attorney.—I suppose, if insisted on, it must be done. Magistrate——The writ is quashed. Plaintiff’s attorney, the costs being paid, orders a new summons as before. 138 ACTIONS AT LAW. v James O’ConneELL. September 24th, 1879. Summons issued in the above case. Returnable September 30th, 1879, between the hours of 3 and 4 o’clock, rp. u., when plaintiff and defendant appeared with their attorneys. Defendant in person asked the magistrate to file a plea in abatement in the case, which was done, and a note thereof made on the docket, viz. “ September 30th, defendant, in erson, files a plea in abatement that defendant’s name is James McConnell, and not ames O'Connell, and verifies it on oath.” This plea of misnomer, as filed, was in the following form, viz. ° Freperick Hake, to the,use of CHARLES ey Magistrate’s Court, o. 3. James McCowne.t, sued by the name of James O’ConNELL, ads. Magistrate’s Court, Freperick Haxg, to the use of No. 3. Cuarves Hevrricx. And the said James McConnell, whom the said Frederick Hake, to the use of Charles Helfrick, has sued by the name of James O’Connell, in his own person, comes and says, that he is named and called by the name of James McConnell, and by the said surname of McConnell hath always hitherto been called and known, without this that he, the said James McConnell, now is, or ever was, named or called or known by the surname of O'Connell, as by the writ of summons in the said case is supposed. And this he, the said James McConnell, is ready to verify. Wherefore he prays judgment of the said writ, and that the same be quashed. James McConnell, sued by the name of James O’Connell, of the city of Philadelphia, the defendant in this cause, maketh oath and saith, that the plea hereunto annexed is true in substance and matter of fact. James McConneLt. Sworn and subscribed before me, the 30th September 1879. R. B.S., Mag. (Norz.—A plea in abatement is put in by the party, who pleads it in person, and he may swear to its truth, as in the foregoing plea, before the magistrate, at the time of putting it in. Such pleas must be pleaded before the magistrate or justice, otherwise they cannot afterwards be pleaded when the case is taken to the common pleas on appeal. It may be well doubted whether, in putting in a plea in abatement before a justice, it is necessary for the party to do more than state the subject-matter of his plea to the justice, requesting him to enter the same on his docket, and offering to prove it by witnesses.] Plaintiff's attorney asks the magistrate to enter a replication to said plea of misnomer, and note the same on his docket, which is done thus: “Sept. 30th, 1879, plaintiff’s attorney files replication that defendant was and is called and known by the name of James O’Connell, as well as by that of James McConnell.” Magistrate. (to defendant.)--Call your witnesses to prove that your name is James McConnell. Defendant's attorney calls John Smith, who is sworn by the magistrate. Defendant's attorney.—Do you know the defendant here, and how long have you known him? Witness.—I know James McConnell, the defendant, and have known him for ten years. Defendant's attorney.—By what name is he generally known? Witness.—By the name of James McConnell. Cross-enamined by plaintiff’s attorney.—Do you know by what name he is generally known? Witness——Yes; I have been well acquainted with him, and those who know him, for ten years. Plaintif’’s attorney.—Do you not know that he is sometimes called James O’Connell, as well as James McConnell? Wétness.—No; I never heard him called by any other name than James McConnell. Magistrate. (to plaintiff’s attorney.)—Have you any more questions to ask the witness ? Plaintif?’s attorney.—No. Magistrate.—Have you any witness to examine as to defendant’ intiff attorney,—Yes; J cme Todd. Pee named Sins James Todd being sworn : Plaintiff’s attorney.—Do you know defendant? Witness.—I know him to see him, but ee hee with him. : laintiff’s attorney.—By what name is he called? Witness.— : but I a heard es ae the name of James O'Connell. Beye Me cenaeny bet ross-examined by defendant's attorney.— How often i name of O’Connell? Witness.—Once or wie, See Defendant's attorney.—Who called him so? Witness.--Joseph Horn. ACTIONS AT LAW. 139 Defendant's attorney.—What did he say? Witness.—He said that there was a man living at No. 79 Queen street, called O’Connell, or McConnell, who had voted the demo- cratic ticket at the last election. ‘ Defendant's attorney.—Did he say he was well acquainted with him? Witness.—No. | Defendant's attorney.—Who else did you hear call defendant by the name of O’Con-: nell? Witness.—I do not remember any one else. '_ Magistrate (to plaintiff's attorney).—Have you any more witnesses on this point? Plaintiff's attorney.—No. Magistrate.—That is not sufficient. Plaintiff's attorney.—I move to amend the record, by altering the name of James O’Connell to James McConnell, under the act of 4 May 1852. Magistrate—Have you any evidence of mistake? Plaintiff's attorney calls Charles Helfrick, the equitable plaintiff, who, having been - sworn, says that he was informed by Frederick Hake that the defendant’s name was James O'Connell, and that he so instructed his attorney. Mogistrate—That is enough—the amendment is allowed. The record is amended accordingly. i Plaintiff’s attorney states the cause of action as in the first suit; and offers in evidence a deed for the house and lot No. 79 Queen street, dated 24th August 1841, from James Jackson and Maria, his wife, to Frederick Hake, duly acknowledged and recorded. The defendant's attorney examines the deed, and, making no objection, it is given in evidence. Plaintiff's attorney next offers in evidence a certain assignment, whereof this is a copy, viz. + For and in consideration of ten dollars, to me in hand paid by Charles Helfrick, before and at the time of the execution hereof, [ hereby assign, transfer and make over to the said Charles, all my right, title and interest in and to a certain claim of thirty-eight dol- lars, or thereabouts, which I have against James O’Connell, or McConnell, on a guaranty, wherein he, the said O’Connell, or McConnell, guarantied the payment to me, by Patrick Ward, of certain rent, but in the payment whereof the said Ward is now in arrear to the amount aforesaid, or thereabout. Witness my hand and seal, this 10th July 1879. Signed, sealed and delivered, (Signed,) Frep’k Hake. [seat] in the presence of us, James JacKson, W1LLIam Dopp. Plaintiffs attorney hands the assignment to defendant’s attorney, who examines it, and asks proof of its execution. James Jackson affirmed. Plaintiff's attorney (handing witness the assignment, and calling his attention to the name James Jackson, thereon).—Is that your handwriting? Witness.—Yes. Plaintiff’s attorney.—Were you present at the execution of that instrument? Wit- ness.—Yes. I saw Fred. Hake sign his name to it. ; Ptaintiff’s attorney—-Who were present besides Hake and you? Witness.—William Dodd, who witnessed the execution, and Charles Helfrick. Plaintif’’s attorney. What became of the paper after its execution? Witness.—Hake gave it to Helfrick. Cross-examined by defendant's attorney.—What else took place at the execution? Witness.—I do not recollect anything else. Defendant's attorney —Then there was no money paid. Witness.—Yes, I do recollect that Helfrick paid Hake some money, but how much I do not know. William Dodd sworn. The testimony of this witness was the same as the last. Plaintiff's attorney offers James Humphreys as a witness, who is sworn. Plaintif’’s attorney.—State whether you were present at a conversation or agreement between Hake and McConnell, the defendant, as to the payment of rent that was to become due by Patrick Ward. Witness.—Defendant occupied the house No. 79 Queen street, for a year and a half, when he left it. Before leaving, I called on him in company with Hake, and found that Patrick Ward occupied one of the rooms. Hake inquired whether Ward was not leaving the house at the same time with himself. He said he believed not, that he had let the room to him about 6 weeks ago, at $5 per month, and the second month was not yet expired—that he was a good tenant and would pay punctually —that he would go his security that he would pay his rent. On this, Hake let Ward remain in the room. He stayed there for twelve months, and only paid me $22 of rent during that time, and there is $38 now in arrear. I was Hake’s agent to collect the rent. Cross-examined by defendant's attorncy.—Did defendant say anything else on the subject at that, or any other time? Witness.—Not that I can recollect. : Defendant's attorney.—What reply did Hake make to McConnell, when he said he would go Ward's security? Witness.—I don’t know that he made any reply. ; Defendant’s attorney.—Did you ever speak to McConnell afterwards on the subject? Witness.—Yes, before bringing suit. I asked him to pay the arrears due by Ward. Defendant's attorney.—What reply did he make? Witness.—That he would not pay a cent—that he never guarantied the payment of rent. 140 ACTS OF ASSEMBLY. Defendant's attorney.—Then I understand you to say, that until after the rent fell into arrear, the amount of which is now claimed, Hake never told or notified defendant that he accepted him as security for Ward. Witness.—No, but we thought that letting Ward remain in the room amounted to the same thing. Magistrate, (to plaintiff's attorney.)—Have you any other witness? Plaintif’’s attor. ney.—No, I consider Humphreys’ testimony sufficient to make out the case for plaintiff, Defendant's attorney contends that the testimony made out no case agaiust defendant; that in order to bind a person on a contract of guaranty there must be a mutual assent between the guarantor and guarantee that it shall operate; the latter must accept the guarantee—a mere offer to guaranty is not binding unless duly accepted. Citing Adams v. Jones, 12 Pet. 207; Lee v. Dick, 10 Ibid. 482; Chitty on Cont. 500, &c. Besides, the act of assembly of 1855 requires a contract of guaranty to be in writing. Purd. Dig. 831 Plaintiff's attorney replied, that the permitting Ward to remain on the premises after the guaranty by defendant, was a sufficient assent and acceptance on the part of the plain- tiff; that a bare offer to guaranty without any express assent or notice had been held in several cases sufficient to charge the guarantor. Oring Caton v. Shaw, 2 Har. & Gill 13; Norton v. Eastman, 4 Greenl. 521; Tuckerman v. French, 7 Ibid. 115; Seaver v. Bradley, 6 Ibid. 60; Train v. Jones, 11 Vt. 444. Magistrate.—I will deliver my opinion and give judgment in this case on the 8th inst., at-4 o'clock P. mM. October 8th, 1879, parties present. Magistrate—It does not appear that Hake ever assented to or accepted the offer of guaranty made by the defendant, or ever gave him any notice that he would look to him for the rent, if it fell in arrear. I do not think the fact that plaintiff left Ward on the premises any sufficient evidence that he assented to or accepted defendant’s offer, since he never informed him that he did so on account of his guarantee. It is unnecessary to determine whether this case falls within the act of 1855 or not. Judgment is therefore entered for the defendant. Acts of Assembly or Statutes. I. Revival of acts in force before the revolu- III. Construction of statutes. tion. IV. Constitutionality of statutes. IL. Statutes to be strictly pursued. I. REVIVAL OF ACTS IN FOROE BEFORE THE REVOLUTION. The first legislature under the commonwealth enacted, by act of 28th January 1777, that each and every one of the laws or acts of general assembly that were in force and binding on the inhabitants of the province, on the 14th May 1776, should be in force and binding on the inhabitants of this state, from and after the 10th February 1777, as fully and effectually, to all intents and purposes, as if the said laws, and each of them, had been made or enacted by that general assem- bly. And also the common law, and such of the statute laws of England, as had heretofore been in force within the province, except such as were repugnant to or inconsistent with the constitution of the commonwealth Statutes made in Great Britain before the settlement of Pennsylvania have no force here, unless they are convenient and adapted to the circumstances of this country. And English statutes made since the settlement of Pennsylvania have no force here, wnless the colonies are particularly named. The common law cf England has always been enforced in Pennsylvania.? Fe The first legislature under the commonwealth has clearly fixed the rule respect- ing the extension of British statutes, by enacting that “such of the statutes as have been enforced in the late province of Pennsylvania should remain in force, till altered by the legislature. hy the charter from Charles IT. to William Penn, the laws of England relating to property were to be the laws of Pennsylvania, until eliured by the legislature British statutes may be in force in Pennsylvania, by usage. 1 Purd. 76. 5 1 Dall. 67, McKean, 0 J. F i 3 ‘ ' . For a list of the : 1 Dall. 67. 2 Bion, 581, English statutes in force in Pennsylvania, 88 all, 74. 3 Binn. 599. And see Bright. Dig. 2207. # Thid. 287. ACTS OF ASSEMBLY. 141 IJ. STATUTES TO BE STRIOTLY PURSUED. In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect. This act was formally held to extend only to penal actions and indictable offences.? But recent decisions have enlarged the sphere of its operation, and it now applies both to civil and criminal proceedings.’ An indictment for nuisance is not within its provisions, although a statutory remedy be provided. Nor are actions of tres- pass quare clausum fregit, for distraining where there is no rent in arrear.6 And ejectment lies by a mortgagee, notwithstanding the act of 1705, giving a remedy by scire facias® So, in conferring on the courts chancery powers, the legisla- ture have nov ousted them of their common-law jurisdiction.? The courts will not, however, grant an injunction, where the plaintiff has a complete statutory remedy.® But an indictment for extortion in taking illegal fees is not sustainable ;° nor against a tax-collector for embezzlement ; nor can a person be held to surety of the peace, except in the cases mentioned in the act of 1700." The remedy against guardians, &c., is exclusively in the orphans’ court.” To recover a legacy, charged on land, the provisions of the act of 1834 must be pursued. A widow cannot maintain dower, where her husband died seised, and in possession; her sole remedy is in the orphans’ court.“ Nor can the heirs maintain ejectment against the widow ;¥ nor a vendee, to enforce specific execution of a parol contract for the sale of land, by a deceased vendor ;* nor can a distributee maintain an action against the executors of a decedent for his share of the estate.” Nor can the reg- ularity and legality of a municipal election be inquired into, except in the mode prescribed by statute.! III. ConstRUCTION OF STATUTES. The whole of the civil jurisdiction of the justices of the peace, and the greater part of, the proceedings before them, being given and regulated by statute law (acts of assembly), the following observations on the “interpretation and exposition of statutes,” will be found of essential service to magistrates, in enabling them correctly to ascertain, and thus fully carry out, the intentions of the acts of our legislature. There are several descriptions of acts of congress and of the general assembly. These are public general acts—public local acts—private acts—and resolutions, which are sometimes of a public and general nature, sometimes local and private. A general or public act regards the whole community ; a special or private act relates only to particular persons or to private concerns. The courts of justice are bound ea officio to notice public acts, without their being formally set forth, but not 80 with regard to private acts, unless formally shown and pleaded. Statutes are declaratory, remedial and penal. Declaratory acts are made where the old custom of the country is almost fallen into disuse, or becomes disputable, in which case the legislature has thought proper, for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Remedial acts are made, from time to time, to supply the defects 1 Act 21 March 1806 3 13. Purd. 77. This statute was re-enacted as to criminal prosecutions, by the 183d section of the revised penal code, without, however, repealing the original act. 268. & R. 289. M. 63. 1 R. 290. 18. &R. 345. Bright. 69. 8. & R. 286. 2 Thid. 240. ila. 314, 2 1 6 1 6 8 Phila. 314. 138. & R. 426, 1 R. 457. 5 1 1 discovered in the common law, whether 13 9 W. 60. 14 3 Penn. St. 60. 29 Ibid. 306. 65 Ibid. 480. 66 Ibid. 270. See 43 Ibid. 474. 15 § Whart 208. 65 Penn. St. 480. 16 17 Penn. St. 193. 2 Gr. 103. 17 20 Penn. St. 474. 25 Ibid. 213. 18 28 Ibid. 9. 35 [bid. 263. 44 Ibid. 332. 20 Leg. Int. 100. Ibid. 101. 18 Pitts. L. J. 131. And see 3S. & R. 273. 1 Ibid. 32. 7 Ibid. 469. 14 Ibid. 162. 17 Ibid. 346. 3 P. & W. 180. 5 Whart. 357. 3 W. 330. 7 Ibid. 199. 9 Ibid. 19. 3.W. & S. 540. 6 Ibid. 242, 14 Penn. St. 66. 51 Ibid. 96. Ibid. 160. Ibid. 394. 98 Ibid. 546, 2 Ash. 252. 2 Pars. 351. 2 Chest. Co. R. 293. 142 ACTS OF ASSEMBLY. they arise from the general imperfection of all human laws, from change of time and circumstances, from mistakes and unadvised determinations, or from any other cause. Penal statutes are such whereby a forfeiture is inflicted for transgressing the provision therein contained; and a penal statute may also be a remedial law, and a statute may be penal in one part and remedial in another. All statutes ought to be plainly and clearly, and not cunningly and darkly penned, especially in penal matters; they should be shortly and artificially penned, so as to comprehend much matter in few words, and so as to leave as little to construction as ossible.* : The parts of a statute, in a popular, though not ina legal sense, are the title, the pre- amble, the purview or body of the act, the clauses, provisoes, ewceptions, and the date or day of receiving the assent of the chief magistrate. ‘The title of a statute is no part of it; it is but a mere usage, and the title is not the law, but the name and description given to it by its makers? The preamble of an act usually contains the motives and inducements to the making of it, but it has been held to be no part of the act. In doubtful cases, recourse may be had to the preamble, in order to discover the inducements of the legislature im, making the statute, but where the terms of the enacting clauses are clear and positive, the preamble cannot be resorted to. Public acts are binding upon every citizen ; the judges are bound to take judicial notice of them; every citizen is, in judgment of law, privy to the making of them, and supposed to know them ; the passing of an act of assembly is a public proceed- ing in all its stages, and when the act is passed, it is, in contemplation of law, the act of the whole community The true meaning ef the statute is generally and properly to be sought from the purview or body of the act. The preamble of a statute is no more than a rerital of some inconveniences, which by no means excludes any other, for which a remeay is given by the enacting part of the statute. It is an established rule in the exposition of the statutes, that the intention of the legislature is to be deduced from a view of the whole of the statute, taken and compared together. In construing acts of the legislature, the courts are not to look only at the language of the preamble, or of any particular clause. If they find in the preamble, or in any particular clause, an expression not so large and extensive in its import as those used in other parts of the act, it is their duty to give effect to the larger expressions. A statute ought, upon the whole, to be construed so that, if it can be prevented, no clause, sentence or word, should be superfluous, void or insignificant. The purview or body of an act may be qualified or restrained by a saving clause in the statute. But a saving clause, where it is directly repugnant to the purview of the act, and cannot stand without rendering the act inconsistent and destruc. tive of itself, is to be rejected. A proviso in an act is something engrafted upon a preceding enactment; and where the proviso is clearly repugnant to the purview of it, the proviso shall stand, and be held a repeal of the purview, because it speaks the last intention of the leg- islature. It is to be compared toa will, in which the latter part, if inconsistent with the former, supersedes and revokes it. There is a known distinction in the law between an exception in the purview of an act, and the proviso. If there ir an exception in the enacting clause of a statute, it must be negatived by pleading: a separate proviso need not. In a criminal case, what comes by way of proviso in a statute, must be insisted on for the purposes of defence, by the party accused ; but where exceptions are in the enacting part, it must in the indictment charge that the indictment is not within any of them. 1 See Coode on Legislative Expression, in the Appendix to Purd. Dig. 7 It is otherwise, since the constitutional amendment of 1864. 66 Penn. St. 164. 70 Ibid. 311. 6 Phila. 492. 3 “The act of the whole community.” This assumption is more emphatically true of the laws enacted in the United States, and in the several states, ‘han it is of those passed under any other known form of government. In no existing gov- ernment, is the voice of the people so imperative as in these United States. Hence the right of instruction by the constituent is universally acknowledged, and almost as generally regarded as binding on the representative. Thus it is, 98 it were, the democracy, the whole people, speaking through the mouths of the individuals whom they have sent to represent them, and who thus, and thus only, can faithfully represent those by whom they were elected. , ACTS OF ASSEMBLY. 143 The indorsement on an act, by the clerk of the legislature, of the day, month and year when it received the assent of the chief magistrate, is the date of the act, and shall be taken to be part of the act. ‘ The qualities and incidents of a statute are :— 1. An act of the legislature binds all persons but such as are specially saved by it. We. A statute which gives corporal punishment, does not bind an infant; contra of other statutes, if they do not except infants. 3. Every statute made against an injury gives a remedy by action, expressly or impliedly. 4, An act of the legislature cannot alter by reason of time, but the common law may, since cessante ratione, cessat et ipsa lex [when the reason of law ceases, the law itself ceases with it]. 5. When the statutes are made, there are some things which are exempted and foreprized out of the provisions thereof, by the law of reason, though not expressly mentioned; thus things for necessity’s sake, or to prevent the failure of justice, are excepted out of statutes. 6. Whenever an act gives anything generally and without any special intention declared, or rationally to be inferred, it gives it always subject to the general control and order of the common law. 7. Whenever a statute gives or provides anything, the common law provides all remedies and requisites. 8. In statutes, incidents are always supplied by intendment; in other words, whenever a power is given by a statute, everything necessary to the making of it effectual is given by implication; for the maxim is, guando lex aliquid concedit, _ concedere videtur et 1d per quod devenitur ad illud [when the law permits anything, it seems also to permit that by which the end is obtained]. 9. Quando aliquid prohibetur, et omne per quod devenitur ad illud [when any- thing is forbidden, everything else is also forbidden that induces that end], by which every oppressionary law by color of any usurped authority is forbidden, and all things by all manner of means tending to destruction are prohibited. 10. Whenever the provision of a statute is general, everything which is necessary to make such provision effectual is supplied by the common law. 11. If an offence is made felony by a statute, such statute does, by necessary consequence, subject the offender to the like attainder and forfeiture, and does require the like construction, as to those who shall be accounted accessories before Ks after the fact, and to all other intents and purposes as a felony, as the common aw does. A misrecital of the day on which the legislature was held, or of the sessions, or of the place of making the statute, or a repugnancy in reciting the day of its making, will be fatal, and so, if any material part is omitted or misrecited. Trifling variations, which do not alter the sense of the material parts of a statute, would not be considered fatal. Every statute, for the continuance of which no time is limited, is perpetual, although it is not expressly declared to be so. A temporary statute continues in force (unless it is sooner repealed) until the time for which it is made to expire; a perpetual statute until it is repealed. If an expired statute be afterwards revived by another statute, the law derives its force from the first, which is to be considered as in operation by means of this revival. No proceedings can be pursued under a repealed statute, though commenced before the repeal, unless by special exception. A statute cannot be repealed by non-user. But though non-user can never repeal the words of an act of the legislature, where they are plain, yet a series of practice, without any exception, goes a great way to explain them, where there is any ambiguity. Where one statute is repealed by anuther statute, acts done in the mean time, while it was in force, shall endure and stand, and be good and effectual; but not so, if the former statute be declared nuld and void. By the repeal of a repealing statute, the new law containing nothing in it that manifests the intention of the former act shall continue repealed, the original stat- ute is revived ; but if a statute be repealed by several acts, a repeal of one or two, « 144 ACTS OF ASSEMBLY. and not of all, does not revive the first statute. Ifa repealing statute, and part of the original statute, be repealed by a subsequent act, the residue of the original statute is revived. And if an act of the legislature is revived, all acts explanatory of that act so revived, are revived also. When an act of the legislature is repealed, it must be considered (except as to transactions passed and closed) as if it had never existed. When a statute commands or prohibits a thing of public concern, the person guilty of disobedience to the statute, besides being answerable in an action to the party injured, is likewise liable to be indicted for the disobedience. Whenever the statute forbids the doing of a thing, the doing is wilful, although without anv corrupt motive, and indictable. If a statute enjoins an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature. Where a statute only enacts that the doing of any act not punishable before, shall for the future be punishable in such and such a particular manner, there the particular method prescribed by the act must be spe- cifically pursued, and not the common-law method of indictment. The mention of other methods of proceeding impliedly excludes that of indictment, as where a statute appoints a particular manner of proceeding against an offender, viz., by commitment, or action of debt, or information, without mentioning an indictment, no indictment lies. The construction of a statute, like the operation of a devise, depends upon the apparent intention of the maker, to be collected either from the particular pro- vision, or the general context. Acts of the legislature ought to be construed according to the intention of the parties that make them. The great object of the rules and maxims of interpretation is to discover the true intention of the law: and whenever that intention can be indubitably ascertained, the courts are bound. to give it effect, whatever may be their opinion of its wisdom or feeling. A thing which és within the letter of the statute is not within the statute, unless it is within the intention of the makers. Great regard ought, in construing a statute, to be paid to the construction which the sages of the law put upon it, because they are the best able to judge of the intention of the makers when the law was made. In the exposition of a statute, the leading clue to the construction to be made, is the intention of the legislature, and that may be discovered from different signs. Asa primary rule, it is to be collected from the words; when the words are not explicit, it is to be gathered from the occasion and necessity of the law, being the causes which moved the legislature to enact it. For the sure and true interpretation of all statutes in general, whether penal or beneficial, restrictive or enlarging of the common law, three things are to be con- sidered :— 1. What was the common law, before the making of the act ? 2, What was the mischief and defect against which the common law did not provide? 3. What remedy the legislature hath resolved and appointed to cure the disease of the common law? The best interpretation of a statute is to construe it as near to the rule and reason of the commén law as may be. When a statute alters the common law, the meaning shall not be strained beyond the words, except in cases of public utility, when the end of the act appears to be larger than the enacting words. Ifa statute makes use of a word, the meaning of which is well known, and has a certain defi- nite sense at the common law, the word shall be expounded and received in the same sease in which it is understood at the common law, It is the most natural and germaine exposition of a statute, to examine one part by another part of the same statute, for that best expresses the meaning of the ‘makers, and such construction is ex visceribus actés. If any part of a statute is intricate, obscure or doubtful, the proper way to discover the intent is to consider the other parts of the act ; for the words and meaning of one part of a statute fre- quently lead to the sense of another, and in the construction of one part of a stat- ate, every other part ought to be taken into consideration. And another rule of ACTS OF ASSEMBLY. 145 interpretation is, that one part of a statute must be so construed by another that the whole may, if possible, stand. The words of a statute are to be taken in their ordinary and familiar acceptation, and regard is to be had to their general and popular use. And though where the words of a statute are doubtful, general usage may be called in to explain them, such usages that can control the words of a statute must be universal, and not the usage of any particular place. If words of art are used, they are to be taken in their technical sense. Where the object of the legislator is plain and unequivocal, the courts ought to adopt such a construction as will best effectuate the intention of the lawgiver. Where the legislature has used words of a plain and definite import, it would be dangerous to put upon them a construction which would amount to holding that the legislature did not mean what it has expressed. In all cases where the inten- tion of the legislature is brought into question, it is best to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand in the act. The courts are not to presume the intentions of the legislature, but to collect them from the words of the act; and they have nothing to do with the policy of the law. They are not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, and according to reason and grammatical correctness. It is a safe method, in interpreting statutes, to give effect to the particular words of the enacting clauses. Ifthe words of a statute go beyond the intention, it rests with the legislature to make an alteration; the duty of the court is only to con- strue and give effect to the provisions. A casus omissus, that is, something omitted and not provided for by the statute, can in no wise be supplied by a court of law, for that would be to make laws. Judges are bound to take the act of the legisla- ture as the legislature has made it. A remedial statute should be so construed as most effectually to meet the bene- ficial end in view, and to prevent a failure of the remedy; and as a general rule, a remedial statute ought to be construed liberally. A statute for the public good should be construed in such a manner as it may, as far as possible, attain the end proposed. The true intent and meaning of a statute is always to be regarded; and to such purpose only ought the words to be construed. Constructions of statutes are to made according to the intent of the framers, and not by any strict or strained interpretations. Penal statutes receive a strict interpretation. The general words of a penal statute shall be restrained for the benefit of him against whom the penalty is inflicted. Penal statutes are taken strictly and literally only in the point of defin- ing and setting down the fact and punishment, and not generally. A penal law shall not be extended by construction. The law of Pennsylvania does not allow of constructive offences nor of arbitrary punishments. No man incurs a penalty, unless the act which subjects him to it is clearly within both the spirit and the letter of the statute imposing the penalty. Where a statute creates a penalty, and says one moiety shall be to the use of the state, county, &c., and the other to a common informer, the state, county, &c., may ‘sue for the whole, unless a common informer has commenced a gut tam suit for the penalty, Where an offence, created or made fraud by statute, is in its nature single, one single penalty only can be recovered, though several join in committing it; butif the offence is in its nature several, each offender is separately liable to the penalty. Statutes which give costs are to be taken strictly, as being a kind of penalty, Costs are only due by act of assembly, none being recoverable at common law. Whenever a statute imposes terms, and prescribes a thing to be done within a certain, time, the lapse of even a day is fatal, even in the penal statute, because no inferior court can admit of any terms but such as directly and precisely satisfy the law. Acts of the legislature which take away the trial by jury, and abridge the liberty of the citizen, ought to receive the strictest construction. It is a settled rule of law, that every charge upon the citizen must be imposed by clear and unambiguous language. Statutes against frauds are a satisfactory exception to the rule that penal statutes are to be taken strictly. 10 146 ACTS OF ASSEMBLY. Where the meaning of a statute is doubtful, the consequences may be considered _in the construction; but where the meaning is plain, no consequences are to be regarded in the interpretation, for this would be assuming a legislative authority. Words are to be taken in a lawful and rightful sense. Where a statute will bear two interpretations, one contrary to plain sense, the other agreeable to it, the latter shall prevail. Any absurd consequences, manifestly contradictory to common reason, are void. Words and phrases, the meaning of which, in a statute, has been ascertained, are, when used in a subsequent statute, to be understood in the same sense. Where an act of the legislature gives authority to one person expressly, all others are excluded, and a special power is ever to be strictly pursued. Where an aet of the legislature gives power to two justices finally to hear and determine un offence, it is necessarily supposed that they shall be together, or which is the same thing, that they shall hold a special sessions for that purpose; for it is unknown to the laws that two persons shall act as judges in the same cause, when at the same time one of them is in one part of the country, and the other in another. Wherea statute gives power to the justices to require any person fo take the oaths, or do any other thing, the law, by necessary implication, gives them power to issue their precept to convene the parties. Where a statute appoints a conviction to be on the oath of one witness, this ought not to be by the single oath of the informer. When an act of the legislature empowers justices of the peace to bind a person over, or cause him to do a certain thing, and such person, being in his presence, shall refuse to be bound, or to do such a thing, a power of commitment is implied, and the justice may commit him to the jail, to remain there till he shall comply. Where a statute appoints imprisonment, but limits no time how long, the prisoner, in such a case, must remain at the discretion of the court. Where an act of the legislature gives power to justices of the peace to take order in any matter, according to their discretion, this shall be understood according to the rules of reason, law and justice, and not governed by private opinion. Where the amount of security to be taken is left in the discretion of any court, it will be good to follow the precedents of former times. Where an act directs that the jus- tices shall commit an offender to prison for twelve mouths, the justices may not alter the words and commit him for a year; for in this respect twelve months and one year are not the same, but the month must be computed at twenty-eight days to the month, and not as a calendar month, unless it be so expressed in the act. A jit person to execute an office, is one apt and fit to execute his office, who has three things—honesty, knowledge and ability ; honesty to execute it without malice, affection or partiality; knowledge to know what he ought duly to do; and ability, as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not from impotency or poverty neglect it. IV. ConstITuTIoNALITY OF STATUTES. It is a principle in the English law, that an act of parliament, delivered in clear and intelligible terms, cannot be questioned, nor its authority controlled in any court of justice." But this principle in the English government, that the parliament is omnipotent, does not prevail in the United States. In this, as in all other countries where there is a written constitution, designating the powers and duties of the leg- islature, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution. It must conform, in the first place, to the constitution of the United States, and then to the subordinate eee of its own state, and if it infringe the provisions of either, it is so far void. The judicial department is the proper power in the government to determine whether a statute be or be not constitutional. To contend that the courts of jus- tice must obey the requisitions of an act of the legislature, when it appears to them to have been passed in violation of the constitution, would be to contend, that the law was superior to the constitution, and that the judges had no right to look inte 1 1 Kent’s Com. 446, 2 Thid. 448. ACTS OF ASSEMBLY. 147 it, and to regard it as the paramount law.’ It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature made in viola- tion of the constitution, or of any provision of it, null and void? A statute, when duly made, takes effect from its date, when no time is fixed, and this is now the settled rule. A retroactive statute would partake in its character Of the mischiefs of an ex post facto law, as to all cases of crimes and penalties; and in every other case relating to contracts or property, it would be against every sound principle. It would come within the reach of the doctrine, that a statute is not to have a retrospective effect.’ The legislature, provided it does not violate the constitutional prohibition, may pass retrospective laws, such as in their operation may affect suits pending and give to a party a remedy, or remove an impediment in the way of recovering redress by legal proceedings.4 Until the judiciary has fixed the meaning of a doubtful law, upon which rights have become vested, it may be explained by legislative enact- ment.’ The bill of rights requires that the law relating to a transaction in controversy, at the time when it is complete, shall be an inherent element in the case and shall guide the decision, and that the case shall not be altered in its sub- stance, by any subsequent law.® An act is passed only when it has gone through all the forms made necessary by the constitution to give it force and validity as a binding rule of conduct for the citizen ; and it cannot impair a contract made after it has passed both houses of the legislature, but before its approval by the governor.” It must always be borne in mind, that the object of the constitution is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power of the legislature to make laws would be absclute* The rule of interpretation for the state constitution differs totally from that which is applicable to the constitution of the United States. The latter instrument must have a strict construetion ; the former, a liberal one. Congress can pass no laws but those which the constitution authorizes, either expressly or by clear implication ; whilst the assembly has jurisdiction of all subjects in which its legislation is not prohibited® And to justify the court in pronouncing an act unconstitutional, it must conflict with some exception or prohibition of the constitution, clearly expressed, or necessarily implied; if its constitutionality depend on the construction of a word, any meaning thereof, whether technical or popular, which will sustain the constitutionality of the statute, will be adopted. But the court cannot look beyond the constitution itself; the general principles of justice, liberty or right, are not elements of decision! 1 1 Kent’s Com. 449. T 33 Penn. St. 202. 2 Ibid. 450. 8 Wheat. 11. 5 Clark 17, 2 Am. 86W.&S.117. 15 N.Y. 549. 46 Ibid. 401. L. J. 287-8. 12S. & R. 330. 9 17 Penn. St. 119. 21 Ibid. 160. 52 Ibid. 474, 3 1 Kent’s Com. 454-5. And see 26 Ibid. 287. 1 Brewst. 524. 44W. 4&8. 218. 10 Penn. St. 280. 3 99 Penn. St. 540. And see 3 S. & R. 169 546. &S. 223, 21 Penn. St. 147. 50 Ibid. 150. 66 Ibid, 164 § 33 Penn. St. 495. 31 Ibid. 288. 3 Phila, 494. 1 21 Ibid. 147. 26 Ibid. 287. [ 148 J Adulteration, And Sale of Unwholesome Provisions. Aot 31 Maron 1860. Purd. 473. Szor. 69. If any person shall sell, or expose for sale, the flesh of any diseased animal, or any other unwholesome flesh, knowing the same ‘o be diseased or unwholesome, or sell, or expose for sale, unwholesome bread, drin. or liquor, know- ing the same to be unwholesome; or shall adulterate for the pu nose of sale, or sell any flour, meal or other article of food, any wine, beer, spirit. of any kind, or other liquor intended for drinking, knowing them to be adulter. 2d; or shall adulterate for sale, or shall sell, knowing the same to be so adulterated, any drugs or medicines; such person so offending shall be guilty of a misdemeanor, and upon conviction be sentenced to pay a fine not exceeding one hundred dollars, or undergo an imprisonment not exceeding six months, or both, or either, at the discretion of the court. The sale of unwholesome flesh meat is indictable, although the taint be imper- ceptible to the senses, and the eating of it produced no apparent injury. Guilty knowledge that a cow which has a running sore on the head, is unfit for food, may be inferred, without proving that the accused had any scientific skill in deter- mining such questions. Act 7 May 1855. Purd. 1294. Szor. 1. It shall not be lawful for any butcher or other person to expose for sale any tainted or unwholesome meat or fish, or any veal less than three weeks old when killed, in any of the market-houses or other places for vending meat, in any of the cities or boroughs in the several counties of this commonwealth, under a penalty of ten dollars for each offence, to be recovered as other penalties are reco- verable, before any alderman or justice of the peace; one-half of said penalty to go to the informer, and the other half for the benefit of the poor Aor 29 Marcu 1860. Purd. 1233. Szor. 1. In all actions for the sale of any spirituous, vinous or malt liquors, or any admixtures thereof, it shall be competent for the defendant, in every such case, to prove that said liquors or admixtures thereof were impure, vitiated or adulterated, and proof thereof being made, shall amount to a good and legal defence to the whole of the plaintiff's demand. This act only applies to cases where the quality or value of the liquors has been impaired by the impurity, vitiation or adulteration? Aor 14 Aprit 1863. Purd. 1234. Szor. 1. It shall be unlawful for any person or persons to make use of any active poison or other deleterious drugs, in any quantity or quantities, in the manufacture or preparation, by process of rectifying or otherwise, of any intoxicating malt or alcoholic liquors, or for any person or persons to knowingly sell such poisoned or drugged liquors, in any quantity or quantities; and any person or persons so offending shall be deemed guilty of a misdemeanor. Szor. 2. It shall be the duty of any person or persons engaged in the manufac- ture and sale of intoxicating malt or alcoholic liquors, or in rectifying or preparing the same in any way, to brand on each barrel, cask or other vessel containing the same, the name or names of the person or persons manufacturing, rectifying or preparing the same, and also these words, “ containing no deleterious drugs or added poison ;” and shall also certify the same fact or facts to the purchaser, over his, her or their own proper signature. , 110N. Y. 574, 200 Dann ca an ADULTERATION. 149 Sor. 3. If any barrel, cask or other vessel containing any such drugged or poisoned liquor shall be fonnd in the possession of any person or persons desig- nated in sections one and two, it shall be deemed prim@ facie evidence of a violation of the provisions of this act. Szor. 4. Any suspected article or specimen of intoxicating malt or alcoholic liquor, shall be subjected to analysis by some competent person to perform the same, under the direction of the court before which the case is tried; and such analysis, duly certified under oath, shall be deemed legal evidence in any court in this state: Provided, That upon any preliminary examination, before any justice of the peace, mayor or other magistrate or competent authority, for the purpose of binding over, such officer may order the inspection aforesaid to be made, and make such order as may be necessary to preserve the evidence of the offence until the trial of the offender Sxcr. 5. Any person offending against any of the provisions of this act shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment not exceeding twelve months, or both, or either, in the discretion of the court. Act 2 June 1881. Purd. 474. Szor. 1. Any and all persons engaged in the business of brewing or manufac- ture of ale, beer or other malt liquors, or in the fermentation, distillation or manufacture of any vinous or spirituous liquors, are hereby prohibited making use, in or about such business, or in any such process of brewing, fermentation, distillation or manufacture, of any poisonous or deleterious drugs or chemicals, or any impure or injurious materials, or such as are prejudicial to the public health, or to the health of any person drinking or making use of any such malt, vinous or spirituous liquors, Sxct. 2. The use of any such poisonous or deleterious drugs or chemicals, or impure or injurious materials, or of those prejudicial to health, as are prohibited by the first section of this act, is hereby declared to be a misdemeanor, and any per. son convicted of so using the same, shall be punished by a fine of one thousanc dollars, and by an imprisonment of not more than one year. Act 25 May 1878. Purd. 1332. Sxror. 1. Any person or persons, who shall knowingly sell or exchange, or expose for sale or exchange, any impure, adulterated or unwholesome milk, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than twenty dollars for each and every offence; and if the fine be not paid, shall be imprisoned for not less than fifteen days, or until said fine shall be paid.’ Scr. 2. Any person who shall adulterate milk, with a view of offering the same for sale or exchange, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than ten dollars for each and every offence ; and if the fine be not paid, shall be imprisoned for not less than eight days, or until said fine is paid. . Sxct. 5. The addition of water or of ice to the milk is hereby declared an adultera- tion; any milk obtained from animals fed on distillery-waste or any substance in a state of putrefaction, is hereby declared to be impure and unwholesome.” Act 10 June 1881. Purd. 1332. Sect. 1. If any person or persons shall, with intent to defraud, sell, supply or bring to be manufactured, to any butter or cheese manufactory in this state, any milk, diluted with water, or in any way adulterated, uncleanly or impure, or milk from which cream has been taken, or milk commonly known as skimmed milk, or if any person or persons so furnishing milk as aforesaid, shall keep back any part of the milk known as “strippings,’’ or shall knowingly bring or supply milk to any butter or cheese manufactory that is tainted or partially sour, or shall knowingly bring or supply 1See 4 Ill, App. 52. 73 .N. ¥.65. 21 Ibid. milk in cities of the 2d and 3d classes. Purd. 263. 1382. The act 22 May 1887, forbids the adul- 2 See act 7 July 1885, as to the adulteration of teration of confectionery. 150 ADULTERY. to any butter or cheese manufactory, milk drawn from cows within fifteen days before parturition, or within five days after parturition, shall, for each offence, forfeit and pay a sum not less than ten dollars nor more than one hundred dollars, with costs of suit, to be sued for in any court of competent jurisdiction for the benefit of the person or persons, firm or association or corporation upon whom such fraud or ne- glect shall be committed. Act 24 May 1887. Purd. 110. Sror. 9. No person shall knowingly, wilfully or fraudulently falsify or adulterate, or cause to be falsified or adulterated, any drug or medical substance, or any preparation authorized or recognized by the pharmacopoeia of the United States, or used or in- tended to be used in medicinal practice, nor mix or cause to be mixed with any such drug or medicinal substance any foreign or inert substance whatsoever, for the pur- pose of destroying or weakening its medicinal power and effect, and wilfully, know- ingly or fraudulently sell or cause the same to be sold for medicinal purposes. Any person who shall violate this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars, and shall forfeit to the commonwealth all articles so adulterated. Adultery. I. Adultery, the crime of, defined. IV. Warrant for adultery. II. Acts of assembly relating to adultery. V. A commitment for adultery. III. Judicial decisions. VI. A docket-entry. I. Aputtery is the illicit intercourse of two persons, one of whom at least is mar- ried ;* and therefore a married man may be guilty of adultery by carnal intercourse with a singlewoman.’ But an indictment for adultery cannot be supported against an unmarried man, though the other party be married; in him, it is simple fornica- tion.* Originally, the offence was of temporal jurisdiction, but after the statute of circumspecte agatis, it was remitted to the spiritual courts;* and therefore he must now look to the statute law for its punishment. II. Act 31 Marcu 1860. Purd. 474. Sect. 36. If any married man shall have carnal connection with any woman not his lawful wife, or any married woman have carnal connection with any man not her law- ful husband, he or she so offending shall be deemed guilty of adultery, and on convic- tion, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court. IIT. In an indictment for adultery, it is sufficient to state that the def. i a wife, M. A. H., in full life, did commit adultery with one M. M.; wae aha alleging carnal knowledge, and without averring that M. M. was not his wife.> In an indictment for incestuous adultery, it is unnecessary to charge a common knowledge of the relationship, if the charge of knowing the relationship be made against the party indicted.® An indictment against a married woman for adultery, must set forth name of her husband.” , The oath of a married woman is not sufficient to sustain a warrant for the arrest of her husband for adultery.2 And on the trial of a man charged with adultery. the husband of the alleged particeps criminis is not a competent witness for the 16 Ala. 864. 2 Strob. Eq. 174. *4Y.7. 2 33 Penn. St. 68. 5 33 Penn. St. 68 82 Dall, 124. 1 ¥. 6. The solicitation of 611 Ala. 989. another to commit adultery is not indictable. 72 Pars. 475. 4 Clark 271. 54 Penn. St. 209. 81 Gr. 218; contra, 46 Mich, 221, ADULTERY. 151 prosecution ;* nor can a wife be a witness against another woman, charged with fornication with the husband of the former? The wife cannot be a witness to criminate her husband, or to state that which she has learned from him in their confidential intercourse; the rule which protects the domestic relations from expo- sure, rests upon considerations connected with the peace of families; and it is considered, that this principle does not afford protection to the husband and wife, while they are at liberty to invoke it or not, at their discretion, when the question is propounded, but it renders them incompetent to disclose facts in evidence, in violation of the rule.’ “It is essential to the happiness of social life, that the con- fidence subsisting between husband and wife should be sacredly protected and cherished, in its most unlimited extent; to break down or impair the great prin- ciples which protect the sanctities of that relation, would be to destroy the best solace of human existence.’’* It has been held, however, that upon an indictment for adultery, the husband of the woman with whom the act was committed, may testify to ctrewmstances which do not directly criminate, but only tend to criminate her.6 The fact of adultery may be proved by circumstantial evidence.6 And the fact of the defendant’s marriage may be proved by his admissions.” On a conviction for adultery, the defendant cannot be sentenced to imprisonment at hard labor. A delivery by the wife, to her paramour, of her husband’s goods, with kuowledge that she had taken them without authority, is sufficient to support an indictment for larceny against the adulterer.2 A wife’s insanity is not a bar to a divorce for adultery, committed by her when she was insane, although it would not be punishable by indictment.’ IV. WARRANT FOR ADULTERY. DELAWARE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the county of Delaware, greeting : Wuersas, J. L., of H , in the said county, cordwainer, hath made oath before J. P., one of our Justices of the Peace in and for the county aforesaid, that 8. B., of S—— town- ship, in the said county, yeoman, on the nineteenth day of March last past, at H——, aforesaid (being a married man and having a wife in full life), did commit adultery with a certain R. W., the wife of D. W., of H——, aforesaid, laborer. These are, therefore, to command you forthwith to’ take the said S. B., and bring him before the said J. P., to answer unto the said complaint, and further to be dealt with according to law. Witness the said J. P., at H——, aforesaid, the third day of June, in the year of our Lord one thousand eight hundred and eighty-five. J. P., Justice of the Peace. V. A COMMITMENT FOR ADULTERY. DELAWARE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of H——, in the County of Delaware, and to the Keeper of the Common Jail of the said County, greeting: Wuerzas, R. W., the wife of D. W.. of H——, in the said county, laborer, hath been charged, on the oath of J. L., before J. P., one of the Justices of the Peace in and for the said county, with committing adultery with a certain S. B., of S—— township, in the said county, yeoman: These are, therefore, to command you, the said constable, forth- with to convey the said R. W. to the common jail of the said county, and deliver her into the custody of the keeper thereof; and you the said keeper are hereby commanded to receive the said R. W. into your custody, in the said jail, and her there safely keep, until she be thence delivered by due course of law. Witness the said J. P., of H afore- said, the tenth day of June, in the year of our Lord one thousand eight hundred and eighty-five. C. D., Justice of the Peace. [szat.] 112 W. N. 0. 108; 2 Brewst. 569; contra, 8 Phila. 385. 2 Commonwealth v. Rachel Shriver, Q. S. Phila. 1820. On the trial of this indictment, which was for fornication with William Robbins, Mary Rob- bins, the wife of William Robbins, was offered as a witness for the prosecution, but rejected by the court, on the authority of 2 T. R. 268, cited in 1 McNally 161; 2 Ld. Raym. 752; 2 Phil. Ev. 65, as her husband might be criminated by her evi- dence. MS. 812 Dat 908 This case was not alluded to, in 8 Phila. 3885; although in the former, 2 T. R. 268 was approved, though not to its full extent. £12 W.N.C.108. See also 1 Root 485. 26 Me. 30. 5 49 Vt. 202. And see 4 Edw. Ch. 624. 6 2 Greenl. Ey. 3 40. 36 Ala. 295. 49 Vt. 202, 72 Me. 531. 7121 Mass. 61. 8 3 Binn. 79. s. Pp. 3 Penn. St. 223. 92 Am. L. Reg. 695. See the cases on this subject collected in 2 Fish, Dig. 2530-31. 10 6 Penn. St. 337. 152 ADVICE. VI. DockxET-ENTRY, IN CASE OF ADULTERY. CoMMONWEALTH June 3d, 1885, warrant issued, X. Y., constable, on the oath vs. of J. L., charging the defendant with having, on the 19th of G. B. March last, at H., in the county of H. (he being a married man, and his wife living), committed adultery with a certain RW. cosTs. June 10th, defendant brought up. J. W., sw.; C. F. sw. Bail required, $300, to appear next Court of Quarter Sessions, for the county of D. A : J. L., cordwainer, of H. township, bound in $100, to testify at the next Court of Quarter Sessions, &e. ; ; G. B., yeoman, of D. township, } Each tent in $300, that G. L., currier, of T. township, § defendant shall appear at the next Court of Quarter Sessions, for the county of D., &e. justice. + $1.50 Constable . . 4 Adbice, How it should be given. A Maaistrate is very frequently called upon for information and advice, in matters civil and criminal. He will on such, as on every other occasion, feel the advantages of having his mind stored with legal information, to the end that he may not lead those who rely upon him, into difficulties, by giving erroneous opinions and advice. He should never give advice upon any agreement, &c., which has been reduced to writing, without having the writing itself before him. If he has reason. able doubts, as to his ability to give the advice asked, let him not scruple to say so, and advise the party to go where he can be correctly informed. If the first step taken shall be in the right direction, every future one may be expected to carry the party nearer to the object he desires to attain. But if, from a want of correct advice, he shall set out in a wrong direction, every step will, in all probability, take him farther from the object of which he is in pursuit. When called upon for advice, the justice considers how great a trust and confidence is reposed in him, and seeks to discharge it with becoming fidelity. Having, as best he can, informed himself fully of the facts, he looks at them in every point of view, not omitting to weigh well the claims of natural justice, and to observe whether he who asks his advice be careful to fulfil its obligations. If he find that natural and positive justice unite in giving right to the party who seeks his advice, he acquaints him with the strength of his case—advises (if with prudence it may be done) that it be laid open to his opponent, and restitution be demanded ; which if he refuses to make, then, and not till then, he advises an appeal to the tribunals of justice. If, on the contrary, positive law alone, according to the letter, reluctantly yield to the party an advantage which the law of God peremptorily forbids him to seize, the justice dissuades him from further prosecution of it, in such manner, that either he must bring new matter to show that his case is other than at first it appeared, or must seek another instrument whereby to prosecute his work of injustice. Tf, upon a consideration of the whole matter, the case appears to the justice to be one of doubt, he states plainly his reasons for so considering it, and recommends, if the claim be small, that it be abandoned, or that, at all events, means of amicably terminating it be first tried. In criminal matters, it is especially becoming in a justice to weigh carefully, and consider well, whatever may be submitted to him for consideration, before he shall venture upon an opinion; always taking care to make drawbacks upon what- ever statements may be made under the influence of strong feelings. In relation to disputes and misunderstandings among families, or former friends, let every pos- sible means be taken to effect a good understanding ; let the cup of conciliation be drained to the dregs, before any hostile measure be advised, or any process what- ever be issued, A justice ought, before giving an opinion in a criminal case, to be especially careful to ascertain all the facts, and everything within the knowledge of the com- plainant; for it should always be bornein mind that tha adwina of a tentta~ -0 11- ADVICE. 153 peace will not screen the party to whom it is given from a suit for malicious prose- cution, if the charge appear to have been made without probable cause.? The justice should carefully guard against giving a decided opinion, upon any matter or thing which, it is probable, may come before him for decision. Persons making statements are apt to be biassed by their feelings and interests; in the state- ments which they make, they often, insensibly even to themselves, give to the facts a coloring, which so disguises the real state of the case, that the most penetrating eye can scarcely discern what is true from what is false. By the exercise of patience, and the devotion of some time, the magistrate may be able to get such a view of the subject as shall enable him to give advice which may be essentially useful to the party who has called upon him, and aid him to do justice between the parties, if called upon. ° If the justice shall be induced to give a decided opinion, on the representation made by the party, and, relying on that opinion, the party shall determine to insti- tute a suit, the justice should decline to issue process, and send the party—if determined to sue—to some other justice. If the justice who has given the opinion, upon which the suit is about to be instituted, shall yield to the solicitations of the complaining party, and issue process, there is danger that the opinion he has given may bias his judgment, so that he will not be that impartial judge which law and justice require him to be, in deciding upon the interests of his fellow-citizens. Again, the case, when it comes to be heard, may, and very often does, exhibit a very different state of things from what the justice had been led to expect, and he may feel bound to give judgment against the plaintiff, who had been induced to bring suit, upon the faith of an opinion which had, by misrepresentation, been extorted from the justice. The plaintiff is, in such a case, apt to become angry, because the justice has given judgment against him. He never excuses the justice, and blames himself; nor will he admit, that in his statement he had discolored the facts. The best and only honest course for the justice, who gives a decided opinion upon a case stated, is to refuse to issue process in relation to it. It is well for every magistrate to avoid, as much as he can, hearing anything about the cause of action or complaint, until the parties meet to submit their “ proofs and allegations.” A magistrate is frequently called upon for advice, in relation to cases, in which he has issued process, and, of course, where it is known that he is the justice who is to give judgment in the case. The party, who thus inquires, is often wholly unacquainted with the manner of doing business in a magistrate’s office. He is altogether at a loss; he does not know what he ought to do, however small the matter in controversy, in order to have his case brought, fully and fairly, before the justice. Whether such applications be from the party plaintiff, or the party defendant, the magistrate should feel equally at liberty, and equally bound, to give the information required. His ear and his mind should be as open and acces- sible to the one party as to the other. He is not the counsel of either party, but appointed as an impartial umpire to decide between them. In him, it is in no wise unbecoming, to give to either party such advice as shall enable them to bring all the facts before him, so that he may give judgment, “as to right and justice shall belong.” The advice here spoken of is not, in any wise, to trench upon the facts or merits of the case; but simply, to give instruction and advice to assist the unin- formed how to do himself justice, and put his case, honestly, before the magistrate. All this may be accomplished without much trouble; and much good will follow from advice thus given with single-heartedness, and an honest desire that the truth may be made manifest. _How much good may be done, or how much evil averted, by the advice of magis- trates, it is not in the power of any human being to estimate, whatever may have been his opportunities, or how great soever the reach of his understanding. Let, there- fore, every justice of the peace, before he gives advice, feel his own responsibility, not only to the person who applies, but to his country and his God; and the advice, which he gives, will be what it ought to be, and it will bring peace to his own mind, and descend, as the gentle dew from heaven, on the heads of his fellow- beings, 1 100 Penn. St. 91. 37 Md. 282. 82 Mass. 381. [ 154 ] Affvay. I. An affray defined. : III. Warrant and return of constable. If. An affray, judicial decisions on. IV. Docket-entry in case of an affray, I. An Arrray is the fighting of two or more persons, in some public place, to the terror of the people of the commonwealth ; for, if the fighting be in private, it is no affray, but an assault!’ And there must be a stroke given or offered, or a weapon drawn, otherwise it is no affray.? Mere words will not constitute an affray A fight commenced in a private place, but carried by flight and pursuit to a public place, is an affray. Whether the place is public or private, is matter of proof.® II. Affrays may be suppressed by any private person present, who is justifiable in endeavoring to part the combatants, whatever consequences may ensue® A private person cannot, of his own authority, arrest a person who has been engaged in an affray or a breach of the peace. But during the affray, any person may, with- out a warrant from a magistrate, restrain any of the offenders, in order to preserve the peace.” A justice of the peace cannot, without a warrant, authorize the arrest of any per- son for an affray out of his view, yet, it is clear, that in such a case he may make his warrant to bring the offender before him, in order to compel him to find sureties for the peace? The revised penal code provides that if any person shall be concerned in an affray, and shall be thereof convicted, he shall be guilty of a misdemeanor, and be sentenced to pay a fine not exceeding five hundred dollars, or undergo an imprisonment not exceeding two years, or both, or either, at the discretion of the court.? Affrays receive aggravations from the persons against whom, or the place where, they are committed. As, where the officers of justice are violently disturbed in the due execution of their office, as by the rescous of a person legally arrested, or the bare attempt to make such a rescous ; for all the ministers of the law are under its more immediate protection.” III. Warrant FOR AN AFFRAY. DELAWARE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of D , in the County of Delaware, greeting: Wuereas, J. L., of the township of D , in the county of Delaware, yeoman, hath this day made oath before J. P., one of our Justices of the Peace in and for the said county, that on the thirtieth day of September, last past, R. S. and S. B., both of the township of L , in the said county, yeomen, at D township aforesaid, in a tumultuous manner, made an affray, wherein the person of the said J. L. was beaten and abused by them, the said R. S. and 8. B.: These are, therefore, to command you, forth- with to apprehend the said R. S. and S. B., and bring them before the said J. P., to answer the said complaint, and to be further dealt with according to law. Witness the said J. P., at D township aforesaid, the third day of October, in the year of our Lord one thousand eight hundred and seventy-nine. ; J. P., Justice of the Peace. [szat.] Return of the Constable—I have taken the within-named S. B., whose body I have ready, as within I am commanded ; but the within-named R. S. is not found In ‘my baili- wick. X. Y., Constable of D township, Octuber 4th, 1879. 1 1 Hawk. P. C. oh. 63. 4 Bl Com. 145. 11 5 30 Texas 431. Daly 1. 5 Yerg. 356. 6 4 Bl. Com. 145. 1 Cr. 0. 0. 310. 2 3 Inst. 158, 7 2 Johns. 486. 316 Als. 65. 13 Ga. 322. 8 1 Hawk. P. C. ch. 63, 3 18. 4 3 Heisk. 278. 72 Mo. 662. As towhatisa 9% Purd. 536. : ee Place, see 22 Ala. 15; and see 83 N.C. 1 1 Hawk. P. C. ch. 63, 3 22. Bright. 46 ~ AGRICULTURAL SOCIETIES. 155 IV. DockET-ENTRY ON A CHARGE OF AN AFFRAY. ComMONWEALTH October 3d, 1879, warrant issued, X. Y., constable, on the vs. oath of J. L., charging the defendant with having been en- 8S. D. gaged in an affray wherein deponent was beaten. October 4th, defendant brought up; J. L. sw.; ©. P. aff.; Costs. G. L. sw. Bail required from defendant in $200. jostion > > 0: +: $210) J. L., of the township of D., farmer, | Each tent. in $100, to c. P., —_—_— C., currier, f testify, &c., atthe next Court of Quarter Sessions, of the county of D., and not depart the court without leave, &e. S. B., of the township of G., farmer, } Each tent. in $200, er, T. C., of ——_——_--,, storekee that the defendant shall appear at the next Court of Gatton Sessions, of the county of D., and not depart the court, &c., and in the mean- time keep the peace, &c. Returned to December Sessions. Aqvicultural Societies. Act 26 Aprin 1883. Purd. 90. Szor. 1. The board of managers or executive committee of any agricultural or horticultural society of this state, ig hereby authorized to appoint as many citizens of this state, policemen, as shall be necessary for their exhibitions, whose duty it shall be to preserve order within and around the grounds of said society ; protect their property within said grounds; to eject all persons who shall be improperly within the grounds of said society, or who shall be guilty of disorderly conduct, or who shall neglect or refuse to pay the fee or observe the rules prescribed by said society. Said policemen shall have the same power, the time said exhibition shall continue, that a constable may have by law, in serving criminal process and making arrests, and in addition, may arrest any person for the commission of any offence, mentioned in section two. Sror. 2. Any person who shall wilfully injure or destroy the property of exhibi- tors, visitors or lessees, on the fair grounds, or shall hinder or obstruct the officers and police in their duties, shall be deemed guilty of a misdemeanor, and upon con- viction shall be subject to a fine not less than one, or more than twenty-five dollars, or imprisonment not exceeding thirty days, at the discretion of the court before whom the offender may be tried. By the act of 1st May 1879, the provisions of the 1st and 2d sections of the act of 1820, against horse-racing, are not to apply to agricultural societies offering premiums for trials of speed in horses, walking, trotting and pacing, nor trials of speed in horses in any incorporated driving park.’ A provision in the charter of an agricultural society, forbidding any person to open any lot, stable, &c., for the purpose of receiving for pay, horses, vehicles, &c., within three hundred yards of the grounds of the society, during the continuance of the fairs, and imposing a penalty for each day’s violation of the act, is unconsti- tutional, as interfering with the use of private property, and granting an illegal monopoly. It is not a public franchise.? An agricultural society may place seats upon a part of its grounds, and charge an additional price therefor, and remove therefrom a ticket-holder who has not paid for their use, after making known to him the regulation ; but they are not justified, in such case, in removing him from the grounds.® 1 Purd. 988, note r. 2 13 Bush 210. 8 7 Langs. 145. [ 156 ] Amendment, At any time before judgment, the proceedings may be amended by the justice, on application, and calling on the opposite party to show cause why the applicant should not have leave to amend. Amendments are liberally admitted, where the justice of the case requires them, and no injury is thereby inflicted on the adverse arty.4 ; The writer, as a justice of the peace, has always allowed the plaintiff to amend his claim, and the defendant his set-off, when, in the progress of a suit, they have thought it proper and for their interest so to do. If, on a second hearing, the plaintiff or defendant brings an attorney to the office of the justice, and he sees cause to object to the manner or amount of the claim, as made by his client and entered on the docket, the writer has always allowed the attorney to amend the claim, and has made the docket-entry to conform to the amended claim. The act of 1806 gives to either of the parties to a suit in a court of record the right to amend, at any time on or before the trial, any informality which will affect the merits of the cause in controversy. And although the provisions of this act are applicable only to actions in courts of record, yet the proceedings of justices of the peace are clearly within its spirit ; and the decisions of the courts in reference to it, should guide the justice in allowing or refusing amendments in analogous cases. Where an amendment is asked for with a view to some unfair advantage, such as throwing on the plaintiff the burden of proving a fact not previously in issue, &v., it ought to be refused. In strictness, leave to amend ought never to be granted, unless the application be supported by affidavit that it will affect the merits, and is not desired for any other reason.?, No amendment can be allowed, the effect of which is, either to introduce a new cause of action, to deprive the oppo- site party of any valuable right, or injuriously to affect the intervening rights of third parties? On appeal from the judgment of a justice, the right to amend does not depend on the statutes of amendment, but upon the act of 1810, the 4th section of which provides, that “the cause shall be decided by the court on its facts and merits only; and no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form or name of the action, shall prejudice either party in the court in which the appeal shall be made.’ And therefore, a declaration in assumpsit may be amended by changing it into debt; the only requirement is, that the cause of action remain the same.6 This power has long been exercised, on the ground that forms of action are not prescribed in the law giving jurisdiction to justices, and it would be unwise to require adherence to them.® “ Justices of the peace,” said Chief Justice Gibson, ‘‘are not familiar with technical distinctions ; and it would be monstrous, to suffer an error in the style of the action, to deprive a party of his appeal.’ A party may amend as often as is necessary, the statute having fixed no limits to the number of amendments.* All amendments made, either by consent or leave of the justice, should appear on the record? The question of making amendments in the names of the parties to a suit has already been treated of, under the title “ Abatement” V. And to this the reader is referred for the statutes and decisions upon the subject, 127. & H. Pr. 2 2190. 6 32 Sm. 147. 221 Penn. St. 474, 7178. &R.141, And see 1 Wood. 48. 8 105 Ibid. 96. 8168. & R.117. 4 Purd. 1141, 9 1 Dev. & Bat. 4, 5 32 Sm. 144, [ 157 J Of Appeals From Magistrates to the Court of Common Pleas. An essay on he right of appeal, and the manner in which that right may be waived, defeated or enforced. E1ruer party to a civil action, if dissatisfied with the judgment of an alderman or justice of the peace against him to an amount exceeding five dollars and thirty- three cents, or on the award of referees to an amount exceeding twenty dollars, has the right to have it reviewed by the court of common pleas of the proper county by APPEAL, a mode by which the facts and merits of the case, as well as the law, may be re-examined by another tribunal.? The first point to be determined by the dissatisfied suitor is, whether his case entitles him to an appeal. And here it may be proper to consider from what judg- ments an appeal will lie. An appeal lies from a judgment on a seire facias ;? and from a judgment by confession.’ But no appeal lies from a regular judgment of nonsuit.* If, however, the justice enter a compulsory nonsuit, which he has no power to do, or dismiss the case in any other irregular manner, the plaintiff may appeal; for such disposition of the case is equivalent to a judgment that he has no cause of action.’ No appeal lies by either party unless the judgment operate directly against him to a greater amount than the sum to which the right of appeal is limited.6 And accordingly, the court of common pleas of Philadelphia county have decided, that in an action before a justice to recover a penalty, not exceeding five dollars and thirty-three cents, for the breach of a municipal ordi- nance, no appeal lies: under the seventh section of the act of 15th April 1835," a judgment for a less amount is final, as in an action on a contract.? But the act of 17th April 1876 provides, that either party may appeal from the judgment of a magistrate, or a court not of record, in a suit for a penalty, to the court of common pleas in which such judgment shall be rendered, upon allowance of said court, or any judge thereof, upon cause shown, and upon such terms as to payment of costs, and entering bail, as the judge or court allowing the appeal shall direct. In this act there is no limitation as to the amount of the judgment.” Ifthe parties agree that there shall be no appeal, the court will enforce that agreement by dismissing an appeal if made ;“ such agreements, however, must be in writing.” The right of the parties to appeal from the judgments of justices, in actions of trespass and trover, under the act of 22d March 1814, is the same as in other cases,” If the plaintiff's demand do not exceed five dollars and thirty-three cents, the judgment of the justice is final as to him, and no appeal lies; and so if the case has been submitted to referees, and the plaintiff's demand do not exceed twenty dollars, he can have no appeal. If, however, the sum sued for by the plaintiff, and set forth in the docket of the justice, is reduced by the judgment more than five dollars and thirty-three cents (or on an award of referees, more than twenty dollars), an appeal lies for the plaintiff, although the judgment is for a less sum than five dollars and thirty-three cents."® The amount actually passed upon by the justice regulates the plaintiff's right of appeal.® If the justice decide in favor of 1 A defendant, who is a mere stakeholder, is not bound to appeal from the judgment of a jus- tice, but must allow a party interested to use his name for that purpose, upon security to indemnify him against costs being given or tendered to him, within the time allowed for an appeal. 4 Clark 37. 2358. & RB. 93. 8 25 Penn. St. 409. 41 Phila. 580. 5 2 Penn. St. 89. 17 Ibid. 75. 6 3 Penn. BI. 213. 3 Penn. L. J. 386. T Purd. 1128. § Northern Liberties ». Powers, MS. 9 Purd.1142. This act was passed to carry out the constitutional provision contained in art. V- 14, et It has been held, that under this act an allocatur is required, even when the penalty ex- ceeds $5.33. 2 Del. Co. R. 333. 128. &R.114. 8 W. 372. 2 Bro. 99. 1 Ash. 92. 2758. & R. 366. 18 4 Thid. 72. 14 2 Ibid. 463. 12 Ibid. 385. 3 P. & W. 174. 16 12S. & R. 388. 3 Penn. St. 454. 16 11 Penn. St. 410. 485. & R. 72. 12 Ibid 385. 9 W.17. 158 APPEALS. a set-off claimed by the defendant, exceeding five dollars and thirty-three cents, the plaintiff can appeal, without regard to the amount of his. demand. ; The defendant’s right of appeal depends on the amount adjudicated against him. It is the sum in controversy and not the amount of the judgment, that regulates the right of appeal; and therefore, if the defendant demand or offer to set off a sum, exceeding five dollars and thirty-three cents, and the decision of the justice be against the defendant on the set-off, he is entitled to an appeal ;? but it must be a bond fide claim to set off. By the third section of the act of March 20th, 1845,4 “the right of appeal from judgments of aldermen and justices of the peace, and from their judgments on awards of referees, is extended to defendants in all cases wherein, by existing laws, the right of appeal is enjoyed by plaintiffs.” Under this act, if the plaintiff be entitled to an appeal, in consequence of his demand being reduced more than five dollars and thirty-three cents, the defendant has the same privilege, although the judgment actually rendered be for less than five dol- lars. This act gives to the defendant an appeal where the plaintiff may have one, but it does not extend the plaintiff’s right; and, consequently, where previously the plaintiff had no right of appeal, this act does not confer such right on the defendant. Thus, where the plaintiff’s claim before the justice was for twenty-five dollars, and referees awarded him eleven dollars, it was held, that the defendant had no right of appeal under this act.® The right to an appeal having been ascertained, the appellant, or person dissatis- fied with the judgment, must take with him, or send to the magistrate, a competent person to serve as bail, and claim his appeal. This must be done within twenty days from the day on which the judgment was entered. In computing the twenty days, the day of judgment is to be excladed;’ and if the twentieth day fall on Sunday, or any legal holiday, the appeal may be entered on the next day.® Where an appeal does not lie, no waiver will give jurisdiction; but where an appeal does lie, the party may, by treating it as regularly in court, waive a defect that would otherwise be fatal.2 Therefore, where a defendant appealed from a judgment against him, for five dollars, the court dismissed the appeal, although more than two years had elapsed, and the plaintiff had filed a declaration and entered a rule to plead.” If the justice, by mistake, refuses an appeal, it may be subsequently entered, after the twenty days." But it is too late to enter an appeal, after the money is made on an execution, although within the twenty days.” The entry of a rule to show cause why the judgment should not be opened, after the expiration of the twenty days, does not give the right of appeal, on the discharge of the rule.* But if such rule be entered within the twenty days, it extends the time for entering an appeal.“ And where, after the final hearing of a case before a justice, he postpones his decision without fixing any day, the judgment entered by him afterwards can only be regarded as a judgment from the day notice thereof shall be given to the party against whom judgment is rendered, and he has twenty days after the receipt of such notice to enter his appeal. Where bail is entered on the twentieth day after the judgment, which was excepted to after the twenty days, and new bail was given on the day after the exception, the appeal was held to be good."* If the party be prevented from com- plying with the requisitions to obtain an appeal, by the conduct or default of the magistrate, the court will permit the appeal to be made after the expiration of the twenty days, and the transcript to be filed after the first dav of the term." If, 2 W. 304. 20 Penn. St. 469. 3 P.& W.120. 2 W. 304. A magistrate refusing to permit bail to be 7 ee St. 78-9. entered for an appeal from a judgment rendered urd. 1139. by him, denies the appeal itself. 1M. 210. But ice 410. he is not liable to an action for damages for re- id. 340. fusing an appeal ; the remedy is by aa to: 1 2 8 ‘ 51 8 2 38. & KR. 496, 29 Penn. St. 525. 8 Phila. the court to allow an ape 2 Luz. L. Obs. 321, 3 ” n a's Pe Will: 4 Pen Sasi Axiom ware Be” act 20 June 1883, Purd. 2007. 14 2 Ash. 224. 38 Penn. St. 211, 948,&R.190. 17 Penn. St. 89. 1Ash.168. 1 2 Clark 318 ee 19 Northern Liberties v. Crooks, Com. Pleas, 16 | Ash. 47, . Phila. Dec. 1848. MS. And see 3 Am. L.J.361. 17 Ibid, 380, APPEALS, 159 the magistrate erroneously reject an appeal offered within the twenty days, he may, after their expiration, correct his mistake, and the appeal will be good. But if one of the parties makes the magistrate his agent, and intrusts it to him to enter a appeal for him, he is barred by the magistrate’s neglect, and loses his appeal. The first section of the act of 20th March 1845,8 be taken : it provides that it “shall be bail absolute of costs accrued and likely to accrue, with one or tioned for the payment of all costs accrued or that may be legally recovered against the appellants.” The act of 15th March 1847, directs that “when any corporation municipal corporations excepted) being sued, shall appeal or take a writ of error, the bail requisite in that case shall be taken absolute for the payment of debt, interest and costs, on the affirmance of the judgment.” The act of 21st March 1849,° provides “ that in all suits or actions hereafter to be brought in any court of record of this commonwealth, against any foreign corporation or body corporate not holding its charter under the laws of this commonwealth, every judgment, verdict and award rendered against such corporations, shall be final and conclusive, unless the said defendants, in addition to the usual proceedings in cases of appeal, shall give good and sufficient bail, in the nature of bail absolute, for the payment of such sum or sums as shall finally be adjudged to be due to the plaintiff or plaintiffs, together with interest and costs thereon.” And by act of 15th April 1851, this provision is extended to stage companies, and to all joint-stock companies not incorporated, when the members of said companies do not reside within the com- monwealth. : The act of 20th March 1845 does not include municipal corporations.’ They are entitled to an appeal without the entry of bail® So also, executors and admin- istrators, by the fourth section of the act of 1810,® and guardians, by the act of 27th March 1833, may appeal without security. But since the passage of the act of 12th July 1842, which supplies the acts which exempted females from impri- sonment for debt, it is necessary that a female should give the bail required by the act of 1845, to obtain an appeal. When a party desires to appeal, the magistrate prepares the recognisance briefly on his docket, under the entries of the previous proceedings in the case. It is suffi- cient to state that A. B. is held to the plaintiff in a certain sum, “ conditioned that the appellant shall appear at the next court of common pleas and prosecute his appeal with effect, &c.,” which recognisance the court will consider as if it had been drawn at length, under the act of March 20th, 1845." Or, it may state that A. B. is held to the appellee in a certain sum, double the probable amount of costs accrued and likely to accrue, ‘‘ conditioned that the appellant shall pay all costs accrued, or that may be legally recovered against him.” If the recognisance be not drawn by the justice, and returned to the court substantially like the forms above given, the appeal may be dismissed. ; A penalty and a condition are indispensable to constitute a recognisance ;¥ hence, where one was taken thus—‘ A. B. enters special bail, &c., for stay of execution, &c., according to law,” it was adjudged to be void; the sum could not be supplied by reference to the debt and costs at the date of the recognisance, because it ought regulates the bail which shall in double the probable amount more sufficient sureties, condi- 1168. & R. 421. 22 W.72. See 2 Wood. 470. A magistrate, in no possible ‘case, should act as the agent of either party. How can any man receive such an appointment, such a mark of confidence, with- out his mind being biassed in favor of the person who bestows it? It is said to be no uncommon thing for justices to undertake the collection of debts for others, and to bring suits and enter judgments, on their own dockets, in favor of the persons by whom they have been appoiuted agents, The report is mentioned in order to accompany it with the information that the supreme court has determined that such conduct in an alderman or justice of the peace is a mis- demeanor in office. 14 8. & R.158. In Wistar v. Conroy, at June Term 1869, the court of com- mon pleas of Philadelphia reversed the decision of an alderman, in a landlord and tenant case, on the ground that the magistrate had signed the notice to quit, as the plaintiff's agent. And it has been determined, that suit upon a promissory note cannot be brought before a justice to whom it has been indorsed for collection, as he thereby becomes the plaintiff’s agent therefor. 49 Mich. 505. 8 Purd. 1139. 4 Ibid. 1140. 5 Ibid. 938. 6 Ibid. 792, note m. 71 Phila, 402. 86W.&S. 16. 9 Purd. 1139. 10 Thid. UT Clark 501. 12 19 Penn. St. 358. 18 45 Penn. St. 276, 5 W. 333, 160 APPEALS. to have been large enough to cover future costs; nor for that purpose could the court assume that it had been taken in double the amount.? And the bail is not liable beyond the amount of the penalty.” But a recognisance on appeal, where the recognisor was “ bound as absolute bail in the sum of twenty dollars, or such sum as may be necessary to pay all costs that have or may accrue in this case, in prose- cuting this appeal,” was held sufficient.” After the defendant has had the benefit of his appeal, an objection that the recognisance contained no penalty, will not be allowed to prevail.4 Whenever a defect exists in the form of the recognisance, the practice is, to apply to the court for a rule upon the appellant to perfect his appeal within a given time, or show cause why it should not be dismissed. It would be error to quash the appeal in the first instance.6 An objection to the form of the recognisance will be waived by any step taken to prepare the case for trial. — When bail is offered, it is the magistrate’s duty to inquire into its sufficiency, either on oath or affirmation, or by other means. [If satisfied of the insufficiency of the bail, notwithstanding his oath, he ought to be rejected. If the appellee, or successful party, be dissatisfied with the bail, he may accept or object to him, and insist on an inquiry into his circumstances, and may bring evidence to rebut his allegations, and to prove (as is often the case) that he is not sufficient bail. New bail may, however, be put in, after such successful opposition ; and in a case where the bail was entered on the twentieth day after the judgment, which was excepted to after the twenty days, and new bail was given on the day after the exception, the appeal was sustained.’ Until the transcript is actually filed in the office of the pro- thonotary, the magistrate retains the right to investigate and decide on the suffi- ciency of the bail.6 Anda defendant cannot defeat the justice’s jurisdiction, by filing the transcript, after notice given to him that bis bail is excepted to.? Where, however, the common pleas is in possession of a case in the shape of an appeal, although defectively entered, the functions of the justice terminate.” It is not necessary that the appellant should join with the surety in the recogni- sance." But the security must be given in a sufficient amount, as required by the act of assembly ;% and it must appear from the record that the security was given according to law.” An appeal by one of two defendants is good as to the one who appeals, although the other one comes into court and dissents.“ If execution had been issued before the entry of bail, the perfecting of an appeal will entitle the appellant to a supersedeas ; which it will be the duty of the justice to issue, on being satisfied that the appeal has been filed in court. But the entry of bail for an appeal, though it may stay the immediate execution of the process, will not avoid all that has been done under it; in order fully to supersede the execution, it is necessary to perfect the appeal by bringing it into court.® It is the province of the justice to determine whether the appeal be regularly taken; and if he allow it, and grant a supersedeas, the constable cannot refuse to recognise it, on the pretence that the justice committed an error; if he persist in proceeding in the execution, he is as much a trespasser as if he had no process in his hands; pee a pmnslianer under such superseded execution will take no title to the goods sold. In Philadelphia, where the defendant is the appellant, it is required by the act of 27th March 1865, that he, or some person acting in his behalf, having knowledge of the facts of the case, should, in addition to the entry of bail, make oath or 1 11 Penn. St. 293. 52P.& W.431. 5 W. & 8.363. 11 Penn 212. & W.9. 1 Phila. 27, 11 Penn. St.293. St, 336. 57 Ibid, ’ Phila. 331 : 3 14 Penn. St.158. In an action against acon- Int. 79. scsi sss ea stable for a false return, © recognisance in the 6 11 Penn, St. 336, following words, “defendant gives bail, whioh is T 1 Ash. 477. ontered on the docket, for the sum of $100, J. W. 8 6 Penn. St. 194, B., bail,” cannot be supported as a recognisance 9 1 Ash. 80. of bail for an appeal. 35 Penn.St. 276. But if 2 Ibid. 168. the dodket-entries, though slovenly made up, fairly 1 6 Binn, 52. show that an appeal was entered, the recognisance 1215. & R. 491 will be binding. 38 Ibid. 500. 51 Ibid. 85. A 18 3 Thid. 93 : recognisance, though informal, is sufficient, if it 1 1 Ibid. 192 eens Hpi ne epee shall proseoute his 5 1 Ash. 408 : appeal with such effect, as that no costs shal 16 : See aes aes Aa 1 be Be og v. Farrell, Purd. 1132, note d. 29 Penn. 4 22 Penn. St. 53. 1 27 Penn. St. 199. APPEALS. 161 affirmation, to be filed with the alderman, that his appeal is not intended merely for the purpose of delay, but that if the proceedings appealed from are not removed, he, or the defendant, will be required to pay more money, or receive less than is justly due; which affidavit must be attached to the transcript, by the alderman, to be filed in the court to which the appeal is taken’ This extends to appeals under the landlord and tenant act of 1863.2. The affidavit must be made at the time of entering the appeal.’ It is the duty, however, of the justice to inform the appellant that an affidavit is requisite to perfect his appeal.* Where the judgment is rendered for wages of manual labor, the act of 20th April 1876 provides, that before the defendant shall be entitled to an appeal, he, or his agent or attorney, shall make oath or affirmation that the appeal is not intended for the purpose of delay, but that he believes that injustice has been done him; which affidavit shall be attached to and sent up with the transcript of appeal. And the said defendant shall be required to give good and sufficient bail for the payment of the debt and costs, to be paid when finally adjudged to be due to the plaintiff by the court, in all cases for labor. Notwithstanding the general terms of this act, it has been determined, that an administrator can appeal without affidavit or security.® Payment of the accrued costs is not essential to an appeal under this act;’ and defects in the appeal may be remedied, by leave of court, as in other cases.* The act does not embrace a suit by an attorney for professional services ; they are not wages of labor® Nor watching timber at an annual salary.” Caution is requisite in ascertaining to what term the appeal must be filed or entered. Many appeals have been quashed in consequence of ignorance or inadvertence on this point; and common prudence requires either the employment of counsel at this stage of the case, or the procuring of information from the magistrate on this point. Tt may be thus explained: there are, for example, four termsin the year, to some one of which the appeal must be entered. The first Monday of the monthsof March, June and December, and the first and third Monday of September are, in Philadel- phia, the return-days of those terms. In calculating the twenty days allowed for an appeal, care must be taken lest one of those return-days should intervene. If the bail have been entered previously to such return-day, the transcript must be filed on or before such return-day, or the appeal will be lost. For, though the law gives twenty days for entering the bail for an appeal, and the appellant may take it on the twentieth day, notwithstanding the beginning of a term hath intervened since the judgment; yet, if the appeal be actually completed on the magistrate’s docket, and ready for return, the appellant is bound by law to file it on or before the first or return-day of the neat term after the entry of bail, though the twenty days may not have then expired." If, therefore, the appellant finds that a return-day inter- venes within the twenty days, his safest course is to delay the entry of bail, and defer the filing of the transcript in the prothonotary’s office until the then next ensuing term, a period of three months. But a defective appeal may be withdrawn, and other bail entered within the twenty days, though a return-day has intervened. By the act of Ist May 1861, it has been provided, that appeals by defendants, in Philadelphia, shall be filed on or before the next monthly return-day ensuing the entry of the alderman’s judgment.” The act of 1810 provides, that “the whole proceeding in case of appeal, shall be certified to the prothonotary of the proper county, who shall enter the same in his docket ; and the suit shall from thence take grade with, and be subject to the same 1 Purd, 1141. See ante, p.121,asto the con- New York, it has been held, that where the time ditions of appeal in certain other counties. 23 W.N. C. 325, 87 Phila. 392. 42 Kulp. 369. § Purd. 2074. 6100 Penn. St. 506. 78 Luz. L. Reg. 32% 825 Pitts. L. J. 120. 92 Luz. L. Reg. 216. 102 Kulp 360. See 2 Chest. Co. R. 63. 13 ~P. & W. 416. 12 12 Penn. St. 363. And see 1 Leg. Gaz. 85. In 11 prescribed by statute for the allowance of an appeal has elapsed, the court has no power to order it to be allowed as of the preceding term. 92 N. Y. 319. And Judge Conyngham decided, that where the time within which an appeal is required to be entered, is fixed by statute, the court had no power to lengthen the period. 2 Luz. L. Obs. 194. 18 Purd.1142. See 10 Phila. 80. 1 W. N.C. 64. Ibid. 134. 4 Ibid. 543, And see act 9 April 1862, as to the filing of appeals in Delaware county. Pamph. 347. And act 6 April 1870, aa to Venango county. Pamph. 931. 162 APPEALS. rules as other actions, where the parties are considered to be in court,” ree the appeal is filed, the proceedings in court are de novo, or new, only as to the ye o- tion, pleadings and evidence, all of which are matters not within the scope of this work. ‘The cause of action must, however, continue the same as before the magis- trate ;? and nothing can be recovered before the court which conld not have been recovered before the justice, except the intermediate interest. The form oF action may be changed on an appeal, provided the cause of action remain the same. Where a plaintiff appeals from the decision of a justice, he cannot discontinue the appeal, so as to authorize him to proceed on the original judgment before the mag- istrate; such discontinuance isa disclaimer of his right to sue, and an absolute bar to further proceedings in the cause. , : As to the costs on an appeal, they abide the event of the suit, and are paid by the unsuccessful party, ‘as in other cases,” subject to these exceptions. If the plain- tiff appeals, he pays all the costs on the appeal, if he recovers no greater sum, or no more favorable judgment in court than had been rendered by the magistrate. If a defendant recover judgment before the justice for a sum certain, and the plaintiff appeal, and the award of arbitrators in court be “no cause of action, neither party is entitled to recover costs.’ And so also, if, in such cases, there be an award in court in favor of the plaintiff, from which the defendant appeals, and afterwards obtains a general verdict, judgment must be entered for the defendant, with the costs of suit only which accrued before the appeal from the justice? In each of these cases, the plaintiff obtains a more favorable judgment, by relieving himself from the payment of the sum adjudged against him by the justice, and is therefore not liable to pay the costs of the appeal; but being unsuccessful in the result of the suit, he is not entitled to recover them. With regard to a defendant, if, either on the trial before the magistrate, or before referees, or before appeal taken, he offers to the plaintiff a judgment for the amount admitted to be due, which offer “ it shall be the duty of the justice or of the referees to enter on the record,” and the plaintiff rejects the offer; then the plaintiff shall pay all the costs which accrue on the defendant’s appeal, if the plaintiff shall not recover eventually ‘a greater amount than that for which the defendant offered to give a judgment.” In both cases, the defendant’s bill is to be taxed and paid by the plaintiff in the same manner as if a judgment had been rendered in court for the defendant.? This proviso has no application, where the appeal is taken by the plaintiff. To exempt a defendant from the payment of costs, and to entitle him to recover them from the plaintiff, where the plaintiff is the successful party, it is necessary that the defendant should have offered, either at the trial of the cause before the justice, or before the appeal was taken, to give the plaintiff a judgment for a sum equal to, or greater than that which the plaintiff, in the event of his suit, reco- vered ; and it is the duty of the justice to enter such offer on the record If tke justice neglect to enter such offer upon his docket, he may be answerable to the de- fendant for any loss or injury sustained by reason thereof.% His certificate that such offer was made is not sufficient ; it must be made a part of the record.¥ The offer to confess judgment, in order to have the effect of exempting the defend- ant from the costs of an appeal, must be made before the appeal is taken; an offer made afterwards, although before the justice has made out his transcript, is too _jate* It may be made at any time before the appeal is taken, although the plain- tiff is not present; but he should have notice to accept or refuse the amount tendered.* And it may be made by the defendant’s agent, in his absence.’® A tender before the justice of a sum of money equal to the amount recovered, is not equivalent to the tender of a judgment, and consequently, will not exempt the defendant from the payment of the costs on the appeal.7_ Neither will a tender of ! Purd. 1140. 10 29 P. 21Binn. 219. 3 Ibid. 43, uy hae ii 2108. & R. 227, 2 Thid. 15. Ibid. 43, 2W. 14. 1R. 370, 32Sm. 144, 147, 18 12 [hid. 255. + 3W.46, 10 Penn, St. 70, M 1 Ibid. 188 STW & 8. 813, 16 6 W. 494, 2 Ibid. 36. 18 48 Penn. St. 127, ® 6 Ponn. St. 463, 1 4 W, 389 ® Purd. 1140. rote APPEALS. 163 a sum equal to that ultimately recovered, together with the costs which have accrued before the justice, avail the defendant; nothing but an offer to give a judgment for the amount will be sufficient.1 But to entitle the plaintiff to recover costs, where a judgment has been tendered, he must recover a greater sum than that tendered, with the interest added.? In the counties of Allegheny, Berks, Blair, Cambria, Centre, Chester, Clinton, Cumberland, Indiana, Lancaster, Lebanon, Lehigh, Luzerne, Mifflin, Northampton, Northumberland, Perry, Schuylkill and York, the appellant is required, by statute, to pay all the costs that have accrued before the justice, at the time of getting his transcript of appeal; unless he make affidavit, to be filed with the justice, of his inability to do so. This, however, does not debar him of his right to recover them back from the appellee, if otherwise entitled to do so? In all cases of summary conviction, before a magistrate or court not of record, either party may, within five days after such conviction, appeal to the court of quarter sessions of the county in which such magistrate shall reside, or court not of record shall be held, upon allowance of the said court of quarter ses- sions, or any judge thereof, upon cause shown; and either party may also appeal from the judgment of a magistrate or a court not of record, in a suit for a penalty, to the court of common pleas of the county in which said judgment shall be ren- dered, upon allowance of said court or any judge thereof, upon cause shown: Provided, That all appeals from summary conviction and judgments for penalties, shall be upon such terms as to payment of costs, and entering bail, as the court or judge allowing the appeal shall direct.‘ It seems, that the limitation of five days in this act only applies to cases of sum- Inary conviction ; not to suits for penalties.S Where the penalty has been paid, the only remedy is by certiorari.® 1 4 Whart. 78. and to Monroe county by act 10 May 1871, Pamph, 2 39 Penn. St. 111. 692; and act 7 February 1873, Pamph. 126, se 3 See ante, p. 120. And see.act 22 March 1869. to Armstrong, Clarion, Delaware and Lawrence Pamph. 478, as to Westmoreland county; act 4 counties. April 1870, Pamph. 928, as to Juniata county, * Act 17 April 1876. Purd. 1142. which was extended to Adams, Beaver and Frank- 5 2 Del. Co, R. 333. lin counties, by act 14 March 1871, Pamph. 347, 6 28 Pitts. L. J. 446. { 164 ] Apprentices. ticeship. XI. Form of a warrant against a master. IL of the ue i a XII. Warrant for an apprentice. i i the XIII. Recognisance to be taken of the master to III. Of the authority and duties of - (oa ec cmeidnt mele by AT master. : . Of th dies for misconduct, apprentice. : : oo Of abecbaaliig apprantiogs: XIV. ere of an apprentice to give VI. Of the assignment of an indenture. evidence. VIL. Of the pindiag of poor children. XV. Docket-entry in case of master and ap- III. Of entices generally. prentice. ; ; . IX. Gonmplaing of ae appriadioe XVI. Assignment of an apprentice, to be written X. Notice to the master. on the back of the indenture. I. Or THE CONTRACT OF APPRENTICESHIP. APPRENTICES are a species of servants, and are usually bound for a term of years, by deed indented, or indentures, to serve their masters, and be maintained and instructed by them. Apprenticeship is a contract entered into between a person who understands some art, trade or business, called the master, and another person, during his or her minority, who is called the apprentice, with the consent of his or her parent or next friend, by which the former undertakes to teach such minor his art, trade or busi- ness, and to fulfilsuch other covenants as may be agreed upon ; and the latter agrees to serve the master during a definite period of time, in such art, trade or business. The time during which the apprentice is to serve is also called his apprenticeship.” But the apprentice is not only a species of servant ; he is also aspecies of relation. The law of England, as well as that of Pennsylvania, considers the master as stand- ing in the place of the parent, who, for a certain length of time, has devolved many of his duties upon the master, from whom the law, if called upon, will exact their discharge. It will also exact from the apprentice, in all places, and at all times, during his apprenticeship, that obedience and respect to his master, which it exacts from a son to a father. ; The obligations which exist between master and apprentice are various and of great importance, not only to the parties, but to the public. ‘‘ Apprenticeships,” says Blackstone, ‘‘ are useful to the commonwealth by the employing of youth, and learning them to be early industrious.” As well, he might have added, as by the instruction given to him while he is an apprentice, so that he shall, when free— that is, when the period for which he shall have been bound apprentice shall have expired—be found not only in habits of industry, but thoroughly instructed, and skilful in executing the various branches of the trade or mystery to learn which he had been bound apprentice. ‘ Indentures of apprenticeship,” says Judge Reed, “Care personal contracts, authorized by law, in which the conditions and terms are expressed. Any violation of these terms renders the aggressor liable, either to a suit at law or to a summary process provided in our acts of assembly.” _ The act of 28th April 1876 provides, that any person who shall, either in an individual capacity, or as a member of any association, attempt, by any unlawful means whatever, to prevent any mechanic, employer or person having charge of any manufacturing business, from taking as an apprentice any minor whose parents or guardians are desirous of apprenticing said minor, or where such minor is without parents or guardians and desires to apprentice himself or herself, shall be guilty of a misdemeanor; and on conviction thereof in the proper court of quarter sessions, shall be sentenced to pay a fine not exceeding one hundred dollars, or to imprison- ment not exceeding three months, or both, or either, at the discretion of the court+ II. OF vee mnpEnrurs. _ The act of 27th March 1713 provides, that “the justices of the orphans’ courts in the respective counties, shall have full power and authority, at the instance and 1 : : Pe 5 tom of apprenticeship has nearly gone out of use; Pape out 9, the relation of master and apprentice was one ; » Bl. 207. of the most valuable relations in society.” Arnold, Purd.119, “ Tt is to be regretted that the sys- J., 41 Leg. Int. 115. APPRENTICES. 165 request of executors, administrators or guardians, to order and direct the binding or putting out of minors, apprentices to trades, husbandry or other employments, as shall be thought fit; provided that the said courts shall not have power to bind such minors, apprentices to any person or persons, whose religious persuasion shall be different from what the parents of such minor professed, at the time of their decease, or against the minor’s own mind or inclination, so far as he or she has discretion or capacity to express or signify the same ; or to persons that are not of good repute, so as others of good credit, and of the same persuasion, may or ean be found.” The act of 29th September 1770 provides, that “ all and every person or persons that shall be bound by indenture to serve as an apprentice in any art, mystery, occupation or labor, with the assent of his or her parent, guardian or next friend, or with the assent of the overseers of the poor, and approbation of any two justices, although such persons, or any of them, were or shall be within the age of twenty- one years, at the time of making their several indentures, shall be bound to serve the time in their respective indentures contained, so as such time or term of years of such apprentice, if a female, do expire at or before the age of eighteen years, and, if a male, at or before the age of twenty-one years, as fully to all intents and purposes, as if the same apprentices were of full age at the time of making the said indentures, any law, usage or custom to the contrary notwithstanding.”? No agreement will constitute an apprenticeship, unless there are indentures executed? A writing without seal is not an indenture of apprenticeship, within the meaning of the act of assembly, even though signed by the parties The indenture must be executed by the minor, as well as by the master and parent or next friend, and if executed by the minor alone, it is not binding.5 An indenture by the master and parent, but not by the infant, will render the master liable to the apprentice, on the covenants therein, if he have complied with the terms of service on his part.6 A minor in the service, of another, under a parol contract of appren- ticeship, has a right to leave such service during his minority, and thereby terminate the relation.*. An indenture of apprenticeship made in another state, is not obli- gatory in Pennsylvania® Parol evidence of an indenture, not produced, is not in general admissible ;® unless under particular circumstances.” An indenture to serve merely, but without learning any art, trade, occupation or labor, is not valid, either at common law or under the statute." The intention of the law is to place the apprentice in a position in which he may make a livelihood; and that while he works to increase the wealth of his master, he shall gather that stock of knowledge which may be useful to him in after-life ; a minor must, there- fore, be bound to some useful employment, at which he may in after-life make his living? The terms servant and apprentice are not synonymous ;* and the courts have always frowned upon every attempt to bind them out as servants.* Buta binding as a waiter is good :® and a girl may be bound to learn the art, trade and mystery of a housewife.® So, a father may bind out his son to serve three years as asweep.” A written agreement “to remain with A. B. two years, for the purpose of learning a trade,” is not binding, for want of an engagement in the same instru- ment, by A. B., to teach® An infant under seven years may be bound apprentice under the statute nial . A mother, although married to a second husband, is a parent within the meaning of the act, and may as such, independently of her husband, give assent to an inden. 1 Purd.117. The power to direct the binding, § 4 W. 80. 1 Ash, 123. out of minors is expressly reserved to theorphans’ © 5 Penn. St. 269. courts by the act of 29 September 17703 5. 1 7 18 Conn. 337. Sm. 311. 86S. & R. 526. 2 Purd.118, By the common law, after arriving ® Burr. 8. C. 735, at full age, a man may bind himself apprentice, W Thid. 151. as he may enter into any other legal covenant, and 1 2 Dall. 197. 1 Y. 233. be bound for its fulfilment. But a person of full 1% 1 Bouv. Inst. 160-61. age, binding himself to learn a trade, is not sub- 18 3 R. 307. ject to the provisions of the act of assembly 1 Ash. 268. 4 Clark 440. giving summary jurisdiction in disputes between 15 18. & R, 252. iL master and apprentice. 1 Bouy. Inst. 162, 1 Bro. 36 1Bro. 197. See 6 W. N. C. 2: 374, 2 Ibid. 205. VW Ibid. 275. 3 Burr. S. 0. 540. Ibid. 272, 290, 839.5 T.R.153. 18 3 C. & P. 289. 4108. &R. 416. 99 Penn. St. 108. 19 5 Whart. 128. 166 APPRENTICES. ture. An indenture of apprenticeship is not necessarily invalid, because the father of the child is in full life, and the binding made without his consent; a mother may bind the children of an habitual drunkard, found so by inquest.’ But the assent of the mother is not sufficient, where the father is living with her at the time of the binding? If, however, the father, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his children, the mother of such children is authorized by the act of 4th May 1855, to bind them apprentices, with- out the interference of her husband, and to exercise all the rights, and to be entitled to claim, and be subject to, all the duties reciprocally due between a father and his children; but if the mother be of unsuitable character to be so intrusted, the proper court may appoint a guardian to perform such duties.* . Where the parent of a child lives at a distance, and has long relinquished its protection, a binding by the next friend is good.* It is not necessary that the person who acts as newt friend to the minor, should receive an appointment as such from legal authority. A sister may act as next friend, though a feme covert, and the binding be to her own husband ;’ and so maya half-sister ;° but a minor sister is incompetent. The person who acts as next friend need not be a relative, but must be some one who knows and acts for the best interest of the minor, and this may be shown by the terms of the indenture ; therefore, an indenture executed by one, as next friend, who had but a casual acquaintance with the minor, did not consult him as to the binding, or make the contract, but executed it at the request of the master, and which contained no provision for schooling, was held invalid.?¢ The master to whom the child was formerly bound, is not a proper next friend within the meaning of the act. Where a stranger, having no authority over the minor, undertakes to bind him as an apprentice, the contract is not valid, at com- mon law, as to either of the parties.!? The general practice is, for the next friend of a minor to express his assent, by sealing the indenture; but it has never been supposed, that he thereby rendered himself liable on the covenants of the indenture.* A binding to a feme covert is void, although the husband may have given his assent to it; for, not being a party to the indenture, he is not responsible on the covenants.“ An indenture executed by one of two partners on behalf of the firm, is invalid ;* and so is an indenture which does not contain a covenant to give the ‘apprentice a reasonable education ;° unless it should appear that the education of the apprentice had been sufficiently attended to before. An indenture of apprenticeship binding a boy for a term of years, during which the master, in lieu of the common covenants for boarding, &., agreed to pay him a certain sum per week, during at least nine months in each year, was held valid." And where, by the terms of an indenture, the master covenauted to pay to the father of the apprentice, a certain weekly sum “ towards the support of the said appren- tice,” it was held, that the master was bound to make the weekly payments to the father, during the sickness of the apprentice, and whilst he was unable to work for the master.” The master stands in loco parentis, and is bound by his contract to support the apprentice in sickness.” An agreement by an apprentice, indorsed on the indentures, that the wages shall be paid to the mother, cannot be enforced, where there is no correlative obligation on her part for his maintenance.?! An indenture binding the apprentice to learn the trade, art and mystery of stove- moulding, wherein the masters covenanted, “at such times as their foundries 168. 4& RB. 340. 1B. 195. Phila. fs i ee re ee Randall, J. 2 Chit. R. 284, 1 Bouv. Ps 8 W. & 8. 339. 1 Pears. 30. 16 1 Bro. app’x, 73. eee 16 Bright. 189. 8 Phila. 375. See act 17 March ae ees 1865, infra, as to indentures in Philadelphia and oh. 27, Allegheny. T1R191. WTR. 191, Back a - 2 Penn, St. 402. i Corfield vo, Fi 7 i 10 Com. v. Schwartz, Com. Pleas, Phila, 19 1845, Se eran i seems Elena BE Bee Ut Wea, ano ve ho s. p. 8 Phila. 375, 20 Q. S. Phila., 13 Oct. 1848, Parsons, J. 1 Str. Gap oe 99. 1 Bott 574. Chitty on Apprentices 73, 104. ‘ 3 1 Bouy. Inst. 164. 1 Pars. on Cont. 534. And see 18 1K.191. 2 Ibid. 269. 7 Penn. St.21, 13 68. & R. 568. Ibid. 90. a7 ~p 14 Com. ex rel. Kelley v. Medwinter, Com, Pleas, erg APPRENTICES. 167 shall be in blast,” to give the apprentice employment, and to pay him $3.50 per week, for the time he shall be so at work, for the first three months ; for the first eleven months thereafter, one-half of journeyman’s prices by the piece; for the next fourteen months, five-eighths of journeyman’s prices by the piece; and for the balance of his term, at the rate of three-fourths of journeyman’s prices by the piece; with a proviso, that the master should not be responsible for any acts done or committed by the apprentice, during such times as he was not at work, nor were they to be under any expense for medicines or medical attendance, it being fully understood that the said apprentice was under the guardianship of his mother, and containing no provision for schooling, was held to be void as an indenture of apprenticeship.’ The act 17th March 1865, however, provides, that in the city of Philadelphia, and the county of Allegheny, no indenture of apprenticeship shall hereafter be cancelled, or deemed void, by reason of the want of any covenant on the part of the master, to assume the guardianship of, or to school or educate the apprentice : Provided, It shall appear on the face of the indenture of apprenticeship, that said apprentice had arrived at the age of seventeen years, at or before the execution thereof; or in case said apprentice should not have reached said age, that satisfactory proof was given to the magistrate, at the time of binding, that the apprentice has , received such an education, in reading, writing and arithmetic, as to render further schooling unnecessary ; nor shall any such indenture be deemed void, by reason of any covenant, on the part of the master, to pay a certain sum, from time to time, to the father, mother, guardian or next friend, of said apprentice, or to said appren- tice alone, in case of the decease of the father or mother, in lieu of the maintenance, clothing and medical expenses of said minor, or that the care, guardianship or main- tenance of said minor, was committed to the father, mother, guardian or next friend or some near relation of said minor, when not employed by his or her master, in and about his work.? Where the terms of the indenture required the apprentice to make up time lost during the term of service, it does not mean time lost by reason of the partial suspension of the company, whereby there was no work for the apprentice to do, though ready and willing.* III. OF THE AUTHORITY AND DUTIES OF THE MASTER. To enable the master to compel the apprentice, if necessary, to do his work in a proper manner, and in sufficient quantity, and to perform his other duties, he is, by acts of assembly, by common law, and by the general custom of trade, armed with no ineonsiderable authority. The apprentice and his interests are also specially regarded, and in the same way provided for. By the indenture, the master is vested with the authority, and, during the appren- ticeship, assumes the responsibility and takes the place of the parent. This view of the relationship between a master and his apprentice is of more importance than persons are in the habit of considering it, and would, if properly regarded, give rise to the cultivation of the kindest feelings, and the promotion of the best interests of the parties. : The master should never forget, that besides being bound to teach the apprentice his trade, he has taken upon himself, for a time, the obligations of a father, and the apprentice should always regard him in that character; such recollections and feelings would be of incalculable value to them both. Magistrates are frequently called upon to give advice to both masters and apprentices. It is a good rule always to require to see the indenture between the parties, before any advice shall be given, either to the one or to the other. A master may, by law, correct and chastise his apprentice for neglect or other misbehavior, so that it be done with moderation ;* but he cannot depute another to give such correction.® If death ensue in consequence of such reasonable correc- tion, without fault on the part of the master, it will be no more than accidental death; but if the correction exceeded the bounds of due moderation, either in the measure 1 Com. v. Bowen, Q. §. Phila., Oct. 1863. 4 Finch 57. 1 Bl. Com. 428. 1 Bouv. Inst, 165, 2 Purd. 119. 8 2 Bache 134. Warren’s Blackstone 361. 3 104 Penn. St. 26. 168 APPRENTICES. of it, or in the instrument made use of for that purpose, it will be either murder in the second degree, or manslaughter, according to the circumstances of the case. Thus, where a master struck a child, who was his apprentice, with a great staff, it was ruled to be murder.?- And where a master had employed his apprentice, to do some work in his absence, and on his return found it bad been neglected, and there- upon threatened to send the apprentice to the House of Correction, ito which the apprentice replied, “ I may as well work there, as for such a master ;” upon which the master struck the apprentice on the head with a bar of iron, which he had in bis hand, and the apprentice died of the blow; it was held murder: for if a father, master, or school-master, correct his child, servant or scholar, it must be with such things as are fit for correction, and not with such instruments as may probably kill them; and a bar of iron is not an instrument of correction.? The master is not liable for an unjust punishment, arising from an error of judgment ; but if he inflicts punishment for the purpose of gratifying a cruel and revengeful disposition, and not for the correction and reformation of the apprentice, it is an abuse of his power, and in such case, if he be indicted for an assault and battery, his authority as master will be no protection* It is the duty of the master, at all times, to attend to the deportment of the apprentice and to restrain him from vicious courses ; and if that were otherwise, the authority of the parent or guardian would supervene.® A master has no right to require menial services from his apprentice; and if he forcibly compel the apprentice to render such menial services, it will be a sufficient ground for annulling the indenture ; he is not, however, liable to indictment for every mistaken exercise of his authority. Neither parent, guardian nor master have the right to exercise any arbitrary control over an infant, as to his religious principles. But if a master, while his apprentice is of tender age, sends him to the church himself and family attend, he “discharges his duty towards his apprentice,” within the meaning of the act of assembly. The master cannot take the apprentice out of the state where the indenture was executed, unless the indenture gives such power, or it follows from the nature of the mystery which the apprentice is to learn.® Where an apprentice is bound to a master to learn a trade, the master is bound to teach him the whole of that trade in all its branches ; and the keeping of an ap- prentice to a subordinate branch, however such division of labor might expedite and perfect the whole work, when completed, is a violation of the master’s covenant, and a sufficient cause for cancelling the indenture.? Thus, if the master ceases to carry on a part of the trade which he covenanted to teach the apprentice, he, by his own act, makes it impossible for the minor to serve him after the manner of an apprentice ; and he cannot be heard to complain that the apprentice has not done that which he has wilfully made it impossible that he should do.? The master, how- ever, is not bound to disclose to the apprentice secrets which are peculiar to himself, and which are his exclusive property, unless by his covenant in the indenture he has agreed to do so, or such agreement may be presumed from the circumstances.” IV. OF THE REMEDIES FOR MIscoNDUCT. _If any master or mistress shall misuse, abuse or evilly treat, or shall not discharge his or her duty towards his or her apprentice, according to the covenants in the indentures between them made; or if the said apprentice shall abscond or absent him or herself from his or her master’s or mistress’ service, without leave, or shall not do and discharge his or her duty to his or her master or mistress, according te his or her covenants aforesaid, the said master, or mistress, or apprentice, be’ ~ _ aggrieved in the premises, shall or may apply to any one justice of the peace °” any county or city where the said master or mistress shall reside, who, after giving uotice to such master or mistress, or apprentice, if he or she shall refuse or neglect to appear shall thereupon issue his warrant, for bringing him or her, the said master, mistress Forst. P. C, 262. 1 Russ. Cr. L. 670, 7 3 Clark 49, 4 1 2 : \ : i pee oe ord . 8 6 Binn. 202. 1 Bouv. Inst. 165. : uss. Cr. L, , ® Com. v. Aitken, Com. Pleas, Phila, 22 Dee. : pe es i, 108, 1845, Jones, J : : 2 Penn. St. 402, 10 6B h. 42 i 6 4 Clark 440, 1 Btu Uauden ee Oat \ APPRENTICES. 169 or apprentice, before him, and take such order and direction between the said mas- ter or mistress, and apprentice, as the equity and justice of the case shall require ; and if the said justice shall not be able to settle and accommodate the difference and dispute between the said master or mistress, and apprentice, through a want of con- formity in the master or mistress, then the said justice shall take a recognisance of the said master or mistress, and bind him or her over to appear and answer tke complaint of his or her said apprentice, at the next county court of quarter sessions to be held for the said county or city, * * * and take such order with respect to such apprentice as to him shall seem just; and if, through want of conformity in the said apprentice, he shall, if the master or mistress, or apprentice, request it, take a recognisance of him or her, with one sufficient surety, for his or her appear- ance at the said sessions, and to answer the complaint of his or her said master or mistress, or commit such apprentice, for want of such surety, to the common jail or workhouse of the said county or city respectively ; and upon such appearance of the parties, and hearing of their respective proofs and allegations, the said court shall, and they are hereby authorized and empowered, if they see cause, to dis- charge the said apprentice of and from his or her apprenticeship, and of and from all and every the articles, covenants and agreements in his or her said indenture contained, the said indenture of his or her said apprenticeship, or any law or cus- tom to the contrary notwithstanding; but if default shall be found in the said apprentice, then the said court is hereby authorized and empowered to cause, if they see sufficient occasion, such punishment, by imprisonment of the body and confinement at hard labor, to be inflicted on him or her, as to them, in their dis- cretion, they shall think his or her offence or offences shall deserve.' It is evident from the wording of this section, that on complaint being made, “due notice’ must be given by the magistrate, to the party against whom the com- plaint shall have been made. In the notice to be sent by the justice, the complaint made should be stated, that the parties may come prepared; and a time and place should be appointed when and where the parties shall appear. As such inquiries usually make known some of the domestic concerns of the master’s family as well as develop the feelings of those interested, and as the magistrate has the appointment of the time, it is recommended that it should always be that time when the least possible number of uninterested persons may be expected to be present. The office of the justice is doubtless the proper place of inquiry. If the party notified shall neglect or refuse to appear, at the time and place stated in the notice, and the ser- vice of the notice shall be proved to the satisfaction of the magistrate, then, but not till then, he shall “issue his warrant.” Where it is shown that the apprentice has been severely beaten, or ill-treated, and the magistrate binds the master to appear “at the next county court of quarter sessions, to be held for the said county or city,” in which he shall reside; applica- tion is usually made to the justice, that in the mean time (between the binding over and the meeting of the court) the apprentice shall be delivered over to, and remain with, and in the care of, his parents, &.—not to be returned to his master until the court shall have heard the case and taken order on it. For many and obvious rea- sons, such applications should be discountenanced and refused, unless the beating shall have been inflicted with an unlawful and dangerous weapon, or where from habits of intemperance, or the violence and indulgence of his passion, the master cannot, with safety, be intrusted with the apprentice. : : ; As a general principle, it is improper to bind an infant in a recognisance, but in this case the act makes it imperative on the magistrate to include the apprentice in the recognisance with the surety for his appearance. The justice will observe another peculiarity in the provisions of this section of the act of assembly in refer- ence to the recognisance to be taken under it. ‘“ The master or mistress” 1s not required to give any security for his or her appearance at court, except his or her own recognisance. . All other means should be tried before the apprentice shall be committed te prison ; and when the necessity of the case closes every other door, care should be 2 Act 29 September 1770 3 3. Purd. 120. under this act; but where the indenture itself ie Where an apprentice absconds, or the master intrinsically defective, the remedy is by Anbeas ill-treats him, the proper mode of proceeding is corpus. 8 Phila. 375. 170 APPRENTICES. taken to write on the commitment a request that he shall be kept by hiwself, and not put in company with any other prisoner. Imprisonment, however, is by all pos- sible means to be avoided. It is, and it should be, regarded as the last resort. It stiematizes the boy; it sinks him in the opinion of others ; and, what is still worse, it siaks him in his own cstimation. But if the master’s complaint be just, the court ought to and will enforce the law, by confining the apprentice so long as may be necessary to accomplish his reform.’ ; ; seth tesseee The only punishment which the court is authorized to inflict, imprisonment of the body, bears, in many cases, as heavily upon the master as upon the apprentice. - The innocent is punished nearly as much as the guilty. It is when the indenture is about to expire, that complaints multiply and assume a more serious character. The apprentice has acquired, or thinks he has acquired, a complete knowledge of his trade; his desire to become free becomes more and more ardent, as be calcu- lates, from week to week how much money he earns, or presumes he earns, for his master ; all of which he thinks would be his own, if the indenture were at an end. These thoughts, unjust and ungencrous as they are, are frequently fostered by others, and beget a restlessness and dissatisfaction, which give birth to com- plaints and inquiries before the courts. The result of such inquiries, however they may affect the interests of the master, fall but lightly on the apprentice. If default shall be found in him, the only punishment by law to be inflicted is “ im- prisonment,” by which the master loses all the money which the apprentice would have earned, during the term of the imprisonment; and the law provides no remuneration whatever. The court will discharge an apprentice for acts of the master injurious to his mind and morals? In many indentures provision is made that the master shall pay to the apprentice, his ‘‘ parent, guardian or next friend,” a certain sum of money periodically, for clothing, &e. And it has been repeatedly ruled, that the refusal or neglect of the master to make the payments required, at the times stipulated, is such a breach of the covenants of the indenture, as warrants the discharge of the apprentice. After the acquiescence of the parents for several years in the binding of a child, there must appear to be a palpable violation of the law, to induce the court to annul the indentures.* The court will not cancel an indenture, upon the application of the master, on the ground that the apprentice’s health is so bad, that he is unable to work, and consequently an expensive burden upon the master. The master stands in loco parentis, and is bound by his contract to support the apprentice in sickness. Otherwise, if the apprentice join in the application.‘ But if the boy plainly appear to be an idiot, incapable of learning his trade, the court will discharge the indenture.® And the court will discharge the apprentice, if the indentures have been procured by fraud or collusion.® An appeal does not lie from an order of the court, discharging an apprentice, pursuant to statute.’ V. OF ABSCONDING APPRENTICES. If any apprentice of any of the arts, trades, mysteries, occupations or labor aforesaid, shall depart and abscond from his or her master’s or mistress’ service into any other county of this province, or into the city of Philadelphia, it shall and may be lawful to and for any justice of the peace of such county or city, to issue his warrant to any constable within his county or city, to apprehend, take and have the body of such apprentice before him, or some other justice of his county; and upon such appearance, and hearing of the complaint and defence of the parties, if default be found in the said apprentice, then, and in such case, the said justice of the peace before whom such warrant shall be returned, shall commit him or her to the common jail of the county, where his or her said master or mistress shall reside, unless he or she will consent to return home, or shall find 1 41 Leg. Int. 115. 1 Bouv. Inst. 164. 1 Pars. on © f iy s . t. 534. 21 Bro. 24, 6 W.N.C. 214. 5 Shi : n Vont 83 Clark 49, ‘ an Chitty on Apprentices 105, Q. 8. Phila., 13 Oct. 1848, Parsons, J. 1 Str. 711 Mass. 24. 1 Bai 99. 1 Bott 574. Chitty on Apprentices 73, 104, Ne eee APPRENTICES. 171 sufficient surety to appear at the next sessions, to be held for the county where such master or mistress shall reside, and answer the complaint of the said master or mistress, and not to depart the same without leave, This section of the act, if construed strictly and to the letter, would appear to give no authority to a justice of the peace ‘to issue his warrant” for any abscond- ing apprentice, so long as he continued “in the county or city”? where his master or mistress may reside. Time and long practice, however, have given a different construction to the section, and the magistrates in every part of the state, on the oath of the master or mistress that his or her apprentice has absconded from their service, issue a warrant for his apprehension, without inquiring whether the appren- tice has or has not “gone into any other county or city.” Any other construction than this would give facilities to runaway apprentices, which would be greatly injurious to the public interests as well as to those of the master or mistress, and consequently to those of the apprentice. If any apprentice shall absent himself or herself from the service of his or her master or mistress, before the time of his or her apprenticeship shall be expired, without leave first obtained, every such apprentice, at any time after he or she arrives to the age of twenty-one years, shall be liable to, and the master or mistress, their heirs, executors or administrators, are hereby enabled to sustain all such actions and other remedies against him or her, as if the said apprentice had been of full age at the time of executing his or her indenture of apprenticeship.? If any person or persons whatsoever shall harbor, conceal or entertain any such apprentice, knowing him to be such, during the space of twenty-four hours, without his or her master’s or mistress’ consent, and shall not give notice thereof to his or her said master or mistress, every such person or persons offending in the premises, shall pay to the said master or mistress the sum of twenty shillings, for every day he shall so harbor, conceal or entertain such apprentice, to be recovered in a sum- mary way, as debts under five pounds are by law directed to be recovered, if the same shall not exceed five pounds ; if otherwise, to be recovered by action of debt, to be brought at the suit of the party injured, in any court of the common pleas within this province? The gist of the offence in this case, is the knowledge of the party who shall “conceal or entertain”? the apprentice of another. It is, therefore, indispensable in the party who shall bring suit to recover damages, to be able to prove that the person who concealed or entertained the runaway apprentice knew him to be such. This act does not intend to make common charity a crime, or treat that man as guilty of an offence against his neighbor, who merely furnishes food, lodging or raiment to the hungry, weary or naked wanderer though he be an apprentice. The harboring made penal by:this act requires some other ingredient besides a mere kindness or charity rendered to the fugitive. The intention or purpose which accompanies the act, must be to encourage him in his desertion of his master, to further his escape, and impede and frustrate his reclamation. The meaning of the words harbor and conceal are not synonymous ; there may be a harboring without concealment.t If the amount claimed shall exceed five pounds, suit must be brought in the common pleas. . If an apprentice enlist in the army, the court will not, upon a habeas corpus, issued at the relation of the master, remand the apprentice to his custody, if he be unwilling to return, but will leave the master to his suit against the officer who enlisted the apprentice. The habeas corpus act is intended to secure personal liberty, not to decide disputes about property. . If an apprentice abscond intg another state, he may be sent back to his master under the provisions of the acts of congress, relating to fugitives from labor.® No innkeeper or tavern-keeper shall receive, harbor, entertain or trust any person under the age of twenty-one years, or any apprentice or servant, knowing him to 1 Act 29 Sept. 1770 33. Purd. 120. Ina pro- his master has not complied with his part of the ceeding against an absconding apprentice, a peti- contract. 8 Phila. 455. tion and answer are irregular; the case is to be 8 Act 29 Sept. 1770 2 4. Purd. 120. heard, at the bar of the court, on the justice’s 44 Clark 111. 3 Am. L, J. 168. 1 Am. L, transcript. Com. v. Bowen, Q.S. Phila. Oct. 1863. Reg. 142. 2 Wall. Jr. C. 0.311. Ibid. 324. i 2 Act 11 April 179991. Purd. 120, Thelaw °158.& R. 353. 7 Penn. L. J. 283 77. R. will not sustain an apprentice in absconding 745. whenever he may fancy he is ill-treated, or that 6 1 Am. L. Reg. 654. 172 APPRENTICES. be such, or after being warned to the contrary by the parent, guardian, master or mistress of such minor, apprentice or servant, under penalty, for the first or second offence, of three dollars, over and above the forfeiture of any debt contracted by such minor, apprentice or servant, for liquors or entertainments; and for the third offence, under penalty of fifteen dollars, and the forfeiture of his license, and being for ever incapable of receiving a license to keep a public inn within this common- wealth. VI. OF THE ASSIGNMENT OF AN INDENTURE. When any master or mistress shall die before the term of apprenticeship shall be expired, the executors or administrators of such master or mistress (provided the term of the indenture extend to executors and administrators) shall and may have aright to assign over the remainder of the term of such apprenticeship to such suitable person, of the same trade or calling, mentioned in the indenture, as shall be approved by the court of quarter sessions of the county where the master or mistress lived, and the assignee to have the same right to the service of such apprentice as the master or mistress had at the time of his or her death ; and also, when any master or mistress shall assign over his or her apprentice to any person of the same trade or calling mentioned in the indenture, the said assignment shall be legal, provided the terms of the indenture extended to assigns, and provided the apprentice, or his or her parent or parents, or guardian or guardians, shall give his, her or their consent to such assignment before some justice of the peace of the county where the master or mistress shall live.? The consent of the parent or guardian, as well as that of the apprentice, is neces- sary to an assignment of an indenture.* It must be certified by the justice, or expressed in writing before him, and attached to the instrument at the time of the assignment.* An indenture binding an apprentice to a man, his heirs and assigns, without naming executors, cannot be assigned by his executors. And where an appren- tice was bound to two copartuers, or the survivor of them, and in case of dissolution, he was to have the right to elect which of the partners he would serve; and on a dissolution, one of the partners assigned -to the other all his interest in the inden- tures, the court held, that to make the election of the apprentice valid, it must be done with the consent of the parent or guardian, and that the dissolution abrogated the indenture, the parent not consenting to the election.® VII. OF THE BINDING OF POOR CHILDREN. It shall be lawful for the overseers of every district, with the approbation and consent of two or more magistrates of the same county, to put out as apprentices all poor children whose parents are dead, or, by the said magistrates, found to be unable to maintain them, so as that the time or term of years of such apprenticeship, if a male, do expire at or before the age of twenty-one years; and, if a female, at or before the age of eighteen years.’ The word “ district,” in this act, shall be construed to mean “ township,” and “borough, and every other territorial or municipal division, in and for which officers charged with the relief and support of the poor are directed or authorized by law to be chosen; but nothing in this act contained shall be taken to repeal or otherwise interfere with auy special provision made by law for any city, county, township borough or other territorial or municipal division.’ By the act 24th March 1877, the directors of almshouses are empowered to bind 1 Act 11 March 1834 3 21. Purd. 120, 2 Act 11 April 1799 22. Purd. 120. 818.& RB. 248. 43 Ibid. 158. 54 Tbid. 109. 1 Bouv, Inst, 162, nae 405. 1 Bouv. Inst. 162. See 22 L. T Act 13 June 1836 2 8, Purd. 117. They oan- not bind outa child that has grand-parente of ability to maintain it. 8 Pitts. 129. It is not necessary that the infant should join in the in- denture. 38. & R.158. But in such case, the remedy for a breach on the part of the master, is by action of assumpsit. 8 W. N.C, 433. They have no power to bind outa child that has not become chargeable to the public. 1 Pears. 30. In Philadelphia, under the Act 15 March 1828 @ 15, the guardians of the poor have authority to bind out a child who has received publio as- sistance from their out-door officers, though not a the almshouse or children’s asylum. 38 Clark § Act 13 June 1836 45, Purd. 1704. Leg. Gaz. 333. ‘ See 7 APPRENTICES. 178 out apprentices, so that such apprenticeship may expire, if males, at and before the age of twenty-one, if females, at or before the age of eighteen years: Provided, That no child be bound out for a longer time than until he arrives at the age of eighteen years, unless he be bound out toa trade other than a farmer: Provided also, That no child shall be apprenticed without the limits of the state. All corporations, organized under any general or special law of this common- wealth, for the purpose of providing homes for friendless or destitute persons or children, shall be, and are hereby authorized to receive such children, upon inden- ture from the guardians, overseers or directors of the poor of any municipality ; and also to bind out and provide suitable homes for all children committed to their charge, when maintenance is unprovided for by their parents or guardians? The managers of the house of refuge are empowered by statute, in their discre- tion to bind out children under their charge, with their consent, as apprentices, during their :inority, to such persons and at such places, to learn such trades and employments as in their judgment will be most conducive to the reformation and amendment and will tend to the future benefit and advantage of such children’ They may be bound to citizens of other states, with their own consent. And they may reclaim such children, if it shall appear, on complaint before a judge of the court of quarter sessions, that the agreements made on their behalf have been vio- lated, or that they have been neglected or improperly treated. By act 27th February 1847, orphans admitted into the Girard College are directed to be bound to the corporation of the city of Philadelphia, who are authorized to bind them out as apprentices, on their arrival at the age of fourteen years.® ‘VIII. OF APPRENTICES GENERALLY. The relation of master and apprentice, until dissolved by the quarter sessions, cannot be questioned in a suit by the master for harboring his apprentice, under the act of 1770.7. An apprentice cannot maintain an action against his master for extra work done by him for the latter, during the term of apprenticeship, although the work was done upon the express promise of the master to pay for it. But an apprentice is an operative within the meaning of the 5th section of the bankrupt law of 1841; and where a master, before his bankruptcy, made an express promise to pay his apprentice for all over-work, the court directed the assignee to pay him accordingly ® An indenture of apprenticeship may be vacated by the consent of all parties to it.1° An apprenticeship is determined by the death of the master :" unless the indenture be to executors and administrators.2 And it may be put an end to by the master telling his apprentice ‘‘he might go where he pleased,” and giving up his indentures." IX. CoMpLAINT OF AN APPRENTICE. A. B., the.apprentice of C. D., of the county of E., carpenter, personally appears this day, July 5th, 1879, and makes complaint—that his master has severely beaten him with a large stick of wood—(or that his master does not furnish him with necessary food and clothing)—(or, that G. H., a journeyman in the employ of the said C. D., is in the habit of kicking and cuffing him)—(or that G. H., a journeyman in the employ of the said C. D., is in the habit of getting drunk and profanely swearing)—(or that he has otherwise refused or neglected to fulfil the covenant of the indenture between them). (Signed,) A. B. Before J. B., Justice of the Peace, July 5th, 1879. Any of which complaints being made, the justice should send a notice to the master requiring his attendance at the office of the justice. 1 Purd. 95. 81 Whart. 113. 2 Act 25 May 1878. Purd. 118. 91 Clark 134. : Pard, 998, 1001. : eeu ee Bouv. Inst, 166. 1d. . an. G . 6 Ibid. 12 See 1 Binn. 178. 48. & R. 109. 6 Pamph. 178. | 18 Burr. 8. C. 629. 73.W. &S. 178, 174 APPRENTICES. X. Novice TO THE MASTER. To CO. D., of the County of Erie. . Sir:—Your apprentice A. B. has this day, July 5th, 1879, called at my office in F township, in the said county, and made complaint that you have severely beaten him with a large stick of wood—(or that you have neglected or refused to have him furnished with sufficient wholesome food or clothing)—(or that G. H., a journeyman in your em- ploy, is in the habit of kicking and cuffing the said apprentice)—(or that G. H., a journey- man in your employ, is in the habit of getting drunk and profanely swearing, whereby the life and morals of your said apprentice are endangered)—(or that you have neglected to fulfil the covenants of the indenture between you). I appoint to-morrow, Tuesday, the 6th of July, at 3 o'clock in the afternoon, to inquire into this complaint, at my office, in the township of F., in the said county, at which ¢ime and place I request you will attend, bringing with you the said A. B., and any other persons you may think proper, that this complaint may be fully inquired into. : Witness my hand and seal, at F. township, county of Erie, July 5th, 1879. J. R. Justice of the Peace. If such notice be neglected, and the master do not appear, the justice should thereupon issue his warrant against the person or persons on whom it may have been served, taking care to be well satisfied, on oath or affirmation, that the notice has been served, before any other process shall issue. XI. Form oF A WARRANT AGAINST A MASTER. COUNTY OF CAMBRIA, ss. The Commonwealth of Pennsylvania, To any Constable of the said county, greeting : You are hereby commanded to take the body of [C.D.] if he be found in the said county, and bring him before J. R., one of our justices in and for the said county, to answer the commonwealth upon a charge, founded on the oath [or affirmation] of A. B., of having severely beaten the deponent, his apprentice, with a large stick of wood, and further to be dealt with according to law. And for so doing this shall be your warrant. Wirvess the said J. R., at E. township, in the said county, who hath hereunto set his hand and seal, the [sixth] day of [July], in the year of our Lord one thousand eight hundred and seventy-nine. J. R., Justice of the Peace. [sEau. | The justice should state in the complaint those charges which may have been made by the apprentice, and in his notice to the master he should communicate to him the complaint actually made against him by his apprentice. The notice should always correspond with the complaint, that the master may come prepared with such witnesses as he may think necessary. The justice will observe that the variety of complaints above made, and repeated in the notice, are only given to exhibit such as may be and frequently are preferred, and that he may in all of them have a short form as to the manner of noting the charge made in the complaint and notice, which are always to be made in strict accordance with the statement of the apprentice and with each other. It is unnecessary to multiply forms or notices, in order to exhibit the difference between those which may be made against a mistress or against mas- ters, from those against a master; the magistrate will be abundantly competent to note such differences. Attention and some experience will be of much value in these, as well as in all other matters which may come before him. Similar memo- randa may be made and notices given in regard to complaints made by masters against apprentices. When it becomes necessary to issue a warrant against an apprentice, it may be in the following form: XII. Warrant FoR AN APPRENTIOE. COUNTY OF ERIE, ss. The Commonwealth of Pennsylvania, To any Constable of the said county, greeting : You are hereby commanded to take the body of [A. B.] if [he i i county, and bring lee before J. R., one of our nie l a ee ae answer the commonwealth upon a charge, founded on the oath [or affirmation] of c. D of having absconded from the service of his master, the deponent], and further to be dealt with according to law. And for so doing this shall be your warrant, APPRENTICES, 175 Wirnzss the said J. R., at F. township, in said county, who hath hereunto set his hand and seal, the [fifth] day of [July], in the year of our Lord one thousand eight hundred and seventy-nine. J. R., Justice of the Peace. [SEAL.] If it shall become necessary to bind the parties over to the next county court of quarter sessions, recognisances should be taken, and a return made to the court. A copy of the docket-entry of the magistrate will be a proper return to bring the matter under the notice of the court. ° XIIL. REcoGNISANCE TO BE TAKEN OF THE MASTER TO ANSWER TO A COMPLAINT MADE BY HIS APPRENTICE. You, C. D., do acknowledge yourself to be indebted to the commonwealth in the sum of $100, to be levied of your goods and chattels, lands and tenements, upon condition that if you shall appear at the next Court of Quarter Sessions, to be held at ——, for the county of , then and there to answer to a complaint made against you, of having severely beaten your apprentice, A. B., and shall not depart the court without leave, then this recognisance to be void, otherwise to be and remain in full force and virtue. Are you content ? A recognisance in the same form will answer, when the apprentice is to be bound over to the court, with this difference, that he. should, beside his own recognisance, give security for his appearance. One party being bound over to answer to a charge, the person or persons who have made the charge should be bound in recognisance to give evidence, at the court, when the case shall come before it. XIV. RECOGNISANCE OF AN APPRENTICE TO GIVE EVIDENCE. You, A. B., do acknowledge yourself to be indebted to the commonwealth, in the sum of $50, to be levied of your goods and chattels, lands and tenements, upon condition that if you shall personally appear at the next Court of Quarter Sessions, to be held at —, in and for the county of Erie, then and there, on behalf of the commonwealth, to give evidence in the case of the Commonwealth vs. C, D., for severely beating you, and shall not depart the court without leave, then this recognisance to be void, otherwise to be and remain in full force. Are you content ? A recognisance of the same kind will answer, when the master shall be required to be bound over to give evidence. XV. DocKET-ENTRY IN CASE OF MASTER AND APPRENTICE. Commonwealth ) July 5th, 1879, A. B., the apprentice of C. D., the defendant, personally vs. appears and makes complaint that his master has severely beaten him C. D. with a stick of wood. Same day, wrote a notice to the defendant requir- ing his attendance at this office, on the 6th of July inst., at 3 o’clock. Notice served on oath by L. T., Constable. July 6th, defendant appears. A. B. sw. Bail in $100 required from defendant, &c. CO. D., of H township, carpenter, bound in $100 for his appearance at the next Court of Quarter Sessions to answer to the above charge, &c. A. B. and P. Q., his guardian, each hound in $50 that the said A. B. shall appear and give evidence in the above case at the next Court of Quarter Sessions, &c. It has been already observed, that a copy of the docket-entry will make a proper return to bring this complaint before the court ; the docket-entry should have the following addition made at the foot of it before it shall be sent to the court. I certify, that the above is a correct transcript of the proceedings had before me, in the above case, as they are of record on my docket. : 3 Witness my hand and seal, at F—— township, in the county of Erie, this 10th day of August, a. p. 1879. J. B., Justice of the Peace. [szau.] XVI. AN ASSIGNMENT OF AN APPRENTICE, TO BE WRITTEN ON THE BACK OF THE INDENTURE. Know aut Men by these presents, that [, the within-named A. B., by and with the con- sent of C, D., my within-named apprentice, and of E. F., his father, parties to the within indenture (testified by their signing and sealing these presents), for divers good causes 176 , ARREST FOR DEBT. nd considerations, have assigned and set over, and do hereby assign and set over, the vita indenture, and the said C. D., the apprentice therein named, unto G. H., his executors, administrators and assigns, for the residue of the term within mentioned, he and they performing all and singular the covenants therein contained on my part to be kept and performed. Awno I, the said C. D., do hereby covenant on my part, with the consent of my father, the said K. F., faithfully to serve the said G. H., as an apprentice, for the residue of the term within mentioned, and to perform towards him all and sin- gular the covenants within mentioned on my part to be kept and performed. Awp I, the said G. H., for myself, my executors and administrators, do hereby covenant to per- form all and singular the covenants within mentioned on the part of the said A. B., te be kept and performed towards the said apprentice. WurTness our hands and seals, at ——, in the county of Erie, the sixteenth day of August 1879. Signed, sealed and delivered, pee 16th, 1879, A.B. [sgau. before J. R., Justice of the Peace. C.D. [sean E. F. [seat. G. Hf. [spar Arrest for Debt, SINcE the passage of the act of the 12th of July 1842, the only civil cases in which a justice of the peace can issue a capias or warrant of arrest, or an execution authorizing the imprisonment of the person of the defendant, are trespass, trover, or where it is proved by affidavit, that the plaintiff’s demand is for the recovery of money collected by a public officer, or for official misconduct. That act provides as follows: ‘‘ No person shall be arrested or imprisoned on any civil process issuing out of any court of this commonwealth, in any suit or proceeding instituted for the reco- very of any money due upon any judgment or decree founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract, excepting in proceeding, as for contempt, to enforce civil remedies, action for fines or penalties, or on promises to marry, on moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment, in which cases the remedies shall remain as heretofore.””! “No execution issued on any judgment rendered by any alderman or justice of the peace, upon any demand arising upon contract, express or implied, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the per- son in whose favor such execution shall issue, or that of some other person, to the satisfaction of the alderman or justice of the peace, either that such judgment was for the recovery of money collected by any public officer, or for official mis- conduct.’”? ‘“ No capias or warrant of arrest shall issue against any defendant in any case in which, by the provisioas of the preceding action, an execution on the judgment recovered could not be issued against the body; and whenever a capias or warrant of arrest in such case shall issue, the like affidavit shall be required as for the issuing of an execution, by the provisions of said section,.”’8 , ae shall reside out of this commonwealth, he may, upon giving se i = . sey eee the payment of all costs which he may become liable : P yy ie rahe . o ee ae judgment against the defendant, have petit Oe i i oat all be eee to such writ, on making the cae Sean. ae ae 7 y- rt section oe act, or a summons, which may wera tei _ ne oe ta than four days from the date thereof. arta ee ian wo days before the time of Xppearance mentioned ; same shall be returned, personally served, the justice or alder- man issuing the same may proveed to hear and determi i ne the ca heretofore allowed by law.’"4 ener rae 1 Act 12 July 1842 2 1. Purd. 6”, 8 Thid. 22 2 Ibid. 9 23. Purd. 1130, ‘ Thid, ; ab, Ponds Hoe 4 = Re = Swe + = = ARREST FOR DEBT. 177 If it appears upon the face of the record that the justice has exceeded his juris- diction, by issuing process against the person of a defendant in a case in which such process is forbidden by law, his proceedings will be considered a nullity, and the defendant will be discharged on habeas corpus Thus, in an action for a penalty, which is directed to be recovered “ as debts of like amount are by law recoverable,” the defendant is not liable to arrest ; and an execution in such case, authorizing the imprisonment of the person, is void, and the defendant may be relieved by a habeas corpus.” Where a plaintiff has an election to bring an action either ex contracté or ex delicto, as in the case of a common carrier or other bailee, he cannot, by such election, deprive the defendant of any substantial privilege or defence; and in such case the defendant shall not be subjected to imprisonment in consequence of the mere change in the form of action. But where the action is for a distinct tort, although one deducible from the existence of a contract, if the plaintiff disaffirm the contract, and proceed for the fraudulent or tortious conduct of the defendant, in such cases bail may be demanded in the first instance. And where the action is in form ex delicto, after judgment, an execution may issue against the body of the defendant.5 A justice of the peace has no power to issue a warrant of arrest, prescribed, in cases of fraud, by the act of 1842.6 Nor can a judge of the common pleas issue such a warrant on a transcript of the judgment of a justice filed for the purpose of creating a lien.’ / An arrest on civil process may be made on the return-day of the writ.2 But an arrest after the time it is made returnable is a- trespass and void.? The neglect of an attorney to pay over money collected for his client, is within the exceptions of the act of 1842, and upon a judgment obtained for money so collected, he may be arrested in execution.” Women are not relieved from arrest for debt by the act of 1842, but by that of 8th February, 1819," which provides that no female shall be arrested or imprisoned for or by reason of any debt contracted after its passage, and this provision is re-enacted by the act of 13th June 1836, § 6.2 And consequently, an attachment cannot issue against a female trustee to compel payment of the trust funds in her hands; for such a process is but a civil writ of execution.” 1 1 Dall. 135. 1 2 Pars. 251. 2 Martin’s Case, Com. Pleas, Phila., 15 April 8 9 Johns. 117. 1854. And see 4 Y. 237, 240. 9 6 Mass. 22. 3 3 Clark 226. 1 Phila. 47. 6 W.N.C.300. 1 2 Gr. 60. 11 Ibid. 575. 11 Purd. 67. 4 Bright. 197. 11 W. N. C. 270. Ibid. 267. 12 Pamph. 573. Morris v. Hofheimer, Dist. 40 Leg. Int. 4. An infant may be arrested fora Court, Phila., 6 June 1860. 11 W. N.C. 341. tort. Ibid. 46. 13-1 Ash. 373; contrd, 1 W. N.C. 250. See 1? 5 1 Clark 184. Ibid. 341. 103 Penn. St. 263, 6 1 Pitts. 180. 12 [178 ] Arson. i inst the accused. I. Statutes relating to arson. IV. Warrant agains II. What constitutes arson. V. Commitmeut for arson. II. Information for arson. I. Act 31 Maron 1860. Purd. 474. Sxcr. 137. If any person shall, maliciously and voluntarily, burn or cause to be burned, or set fire to, or cause or attempt to set fire to, with intent to burn, any factory, mill or dwelling-house of another, or any kitchen, shop, barn, stable or other out-house that is parcel of such dwelling, or belonging or adjoining thereto, or any other building, by means whereof a dwelling-house shall be burnt, then and in every such case, the person so offending shall be adjudged guilty of felonious arson, and on conviction thereof, shall be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confine- ment, at labor, not exceeding twelve years. And in case of the malicious burning or setting fire to any dwelling-house, or building that is parcel of such dwelling or belonging thereto, there is any person in the same, the offender, being convicted thereof, shall be sentenced to pay a fine not exceeding four thousand dollars, and to undergo an imprisonment, at separate or solitary confinement, not exceediag twenty ears. : Sucr. 138. If any person shall, wilfully and maliciously, burn or cause to be burned, set fire to or attempt to set fire to, with intent to burn, or aid, counsel, procure or consent to the burning or setting fire to, of any barn, stable, or other building of another, not parcel of the dwelling-house, or any shop, storehouse or warehouse, malthouse, mill or other building of another, or any barrick, rick or stack of grain, hay, fodder or bark, piles of wood, boards or other lumber, or any ship, boat or other vessel of another lying within any county in this state, or any wooden bridge within the same, or state capital or adjoining offices, or any church meeting- house, court-house, jail or other public building belonging to this commonwealth, or to any city or county thereof, or to any body corporate or religious society what- ever, the person offending shall, on conviction, be adjudged guilty of a misdemeanor, and be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confinement, at labor, not exceeding ten ears. Sucr. 139. Every person, being the owner of any ship, boat or other vessel, or the owner, tenant or occupant of any house, out-house, office, store, shop, warehouse, mill, distillery, brewery or manufactory, barn or stable, or any other building, who shall wilfully burn or set fire thereto, with intention to burn the same, with an intention thereby to defraud or prejudice any person, or body politic or corporate, that hath underwritten, or shall underwrite, any policy of insurance thereon, or on any moneys, goods, wares or merchandise therein, or that shall be otherwise interested therein, shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years. Sror. 140. If any person shall wilfully set on fire, or cause to be set on fire, any woods, lands or marshes within this commonwealth, so as thereby to occasion loss, damage or injury to anv other person, he or she shall be guilty of a misdemeanor, and, on conviction, be seatenced to pay a fine not exceeding one hundred dollars, and undergo an imprisonment not exceeding twelve months, _ Secor. 141, If any person shall unlawfully and waliciously place or throw in, a upon, against or near any building or vessel, any gunpowder or other explosive aa with intent to do bodily harm to any person, or to destroy or damage any uilding or vessel, or any machinery, working-tools, fixtures, goods or chattels, every such offender shall, whether or not injury is effected to any person, or any damage ae saben, es or machinery, working-tools, goods or chattels, be guilty of y, , being thereof convicted, shall be sentenced to pay a fine not exceeding a, Ue ey te ery ARSON, 179 five hundred dollars, and to undergo an imprisonment, by separate or solitary con finement at labor, not exceeding three years. Aot 10 June 1881. Purd. 475. Szor. 1. No principle or policy of law shall, because the defendant shall have been in possession as tenant or otherwise, at the time of the commission of the offence, exempt any person from conviction and punishment, who shall wilfully and maliciously burn, or cause to be burned, or cause or attempt to set fire to, any building ; but such person shall be liable to conviction and punishment, in the same manner and to the same extent as if not in possession. II. WHAT CONSTITUTES ARSON. Arson, at common law, is the malicious, voluntarily and actually burning of the house or out-house of another.! And this definition is followed by the act of 1860, prescribing the punishment of arson. At common law, the burning of one’s own property, unaccompanied by an injury to, or by a design to injure, some other person, is pot a punishable offence.? But the burning of a man’s own house in a town, or so near to other houses as to create danger to them is a great misdemeanor.® The burning of a barn, with hay and grain in it, is felony and arson at common law. If a building be set on fire which is so near a dwelling-house as to endanger the burning of it, it is arson.5 A jail is an inhabited dwelling-house within the statute.® Setting fire to a jail by a prisoner, merely for the purpose of effecting his own escape, and not with an intention to burn it down, is not within the statute." But if the prisoner intend to burn down the building, to effect his main design, which is to escape, he is guilty.® If any part of a dwelling-house, however small, be consumed by fire, maliciously and wilfully applied, the offence of arson is complete.? In an indictment at com- mon law it is unnecessary to allege that the house burned was a dwelling-house, for the word “house” imports it. Setting fire to an unfinished boat in a shop, with intent to burn the building, is a misdemeanor at common law.” It is an attempt to commit arson, if the prisoner persuade another to do it, and give him the materials, he himself not intending to be present.” Such as be taken for house-burning, feloniously done, are not bailable by justices of the peace. IIT. INFORMATION FOR ARSON. BERKS COUNTY, ss. J. L., of the township of B——, in the county of Lancaster, yeoman, personally came before J. R., one of the Justices of the Peace in and for the county of Berks, and made oath, that on the night of the twentieth instant, between the hours of eight and twelve of the clock, the barn of the said J. L., situated in B township aforesaid, containing a large quantity of hay and grain, was entirely consumed by fire; that threats having been made upon a former occasion by F. W., of L—— township, in the said county of Lancaster, laborex, that he would do this deponent some mischief, and the said F. W., since the burning of the said barn, having left his usual place of abode in L. township aforesaid, the deponent hath good cause to suspect, and doth suspect, the said F. W., of setting fire to the said barn. Further saith not. J. Sworn and subscribed, February 23d, 1879, before J. R., Justice of the Peace. 14 Bl. Com. 226, C. C. 550. 12 Ibid. 148. 15 Ibid. 75. 2 2 Pick. 325. Lewis’ Cr. L. 81. ~° 8 5 Ired. 350. 3 Lewis’ Cr. L. 79, 82. 2 East P. C.ch.21,27, 9 16 Mass. 105. 3 Ired. 570. p- 1030. Cald. 227. 10 4 Call 109. See 103 Penn. St. 469, as to an £5 W. & S. 385. indictment for burning a barn. 5 2 Rich. 242, 10 Met. 422. And see 98 Penn. 1 Thacher’s Cr. Cas. 240. St. 192. 12 4 Hill 133. 6 18 Johns. 115. 4 Call 109. 18 2 Inst. 189. 2 Ash. 236. Purd. 546. 718 Johns. 115. 5 Ired. 350. And see 13 Cox 180 , ARSON. IV. WARRANT AGAINST THE ACCUSED. BERKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of O——, in the County of Berks, greeting : Wuereas, information hath been made unto J. R., one of the Justices of the Peace in and for the said county, on the oath of J. L——, of the township of B., in the county of Lancaster, yeoman, that on the night of the twentieth instant, between the hours of eight and twelve of the clock, the barn of the said J. L——, situated in B-— — township aforesaid; containing a large quantity of hay and grain, was entirely consumed by fire ; and this deponent has good cause to suspect, and doth suspect, the said F. W. of settin fire to the said barn; you are, therefore, hereby commanded forthwith to take the sai ¥, W., and bring him before the said J. R., to answer unto the said complaint, and fur- ther to be dealt with according to law. Witness the said J. R., at the borough of R—, in the said county of Berks, the twenty-third day of February, in the year of our Lord one thousand eight hundred and seventy-nine. ; J.R., Justice of the Peace. [szat.] Return of Constable.—I have taken the within-named F. W——, whose body I have ready, as within I am commanded. X. Y., Constable. V. CoMMITMENT FOR ARSON. BERKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of O—— township, in the County of Berks, and to the keeper of the common jail of the said county. Wurrzas, F. W., of O—— township aforesaid, laborer, hath been brought before K- M., one of the Justices of the Peace in and for the county aforesaid, charged on oath of J. L., of the township of B——, in the county of Lancaster, yeoman, with having, on the night of the twentieth instant, between the hours of eight and twelve of the clock, set fire to the barn of the said J. L., situated in B township aforesaid, contain- ing a large quantity of hay and grain, whereby the same was entirely consumed: These are, therefore, to command you, the said constable, to convey the said F. W., forthwith, to the common jail of the said county of Berks, and deliver him to the keeper thereof; and you, the said keeper, are hereby commanded to receive the said F. W. into your cus- tody, in the said jail, and him there safely keep until he be thence delivered by due course of law. Witness the said K. M., at township aforesaid, the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and seventy-nine. K. M., Justice of the Peace. [smat.] The crime described in the 138th section of the Penal Code is a misdemeanor only, which is triable in the court of quarter sessions; but that described in the 137th section, is a felony, of which exclusive jurisdiction is vested in the oyer and terminer.! 1 2 Pitts. 310. [181 ] Assault and Battery. I. Definition of an assault and battery. II. What will justify a battery. II, Provisions of the Penal Code. IV. Complaint for an assault and battery. V. Warrant for an assault and battery. VI. Proceedings before the justice. I. DEFINITION OF AN ASSAULT AND BATTERY. WHAT IS DEEMED AN ASSAULT.—An assault is an attempt or offer, with force or violence, to do a corporal hurt to another ; as, by striking at him with o. without a weapon ; or presenting a gun at him, at such a distance to which the gun will carry ; or pointing a pitchfork at him, standing within reach of it; or by holding up one’s fist at him, or by drawing a sword or waving it in a menacing manner ;! or by riding a horse so near to one as to endanger his person;? or by any such like act done in an angry, threatening manner.’ But it seems agreed, at this day, that no words whatever can amount to an assault ;* so, if a man raise his arm against another, but accompany the action with words showing a determination not to strike, it is no assault. And to present a gun within shooting distance of one who is armed with a knife, and about to attack the defendant, is no assault, if there was no attempt to use the gun, or intention to use it, unless first assailed.* WHat IS DEEMED A BATTERY.—A battery, which always includes an assault, is the actual doing an injury to the person of a man, be it ever so small, in an angry, or revengeful, or rude, or insolent manner; or by spitting in his face, or violently jostling him out of the way.” Thus, to attack and strike with a club, with violence, the horse before a carriage in which a person is riding, is an assault on the person.® And taking hold of a person’s coat, in an angry, rude or insolent manner, or with a view to hostility and detaining the wearer, amounts not only to an assault, but to a battery.®- One charged with an assault and battery may be found guilty of the assault, and yet acquitted of the battery ; but every battery includes an assault: therefore, on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery, it is sufficient.” ‘ II. WHAT WILL JUSTIFY A BATTERY. If a person comes iato my house, and will not go out (after having been required so to do), I'may justify laying hold of him, and turning him out, not using more violence than is necessary to eject him from my premises. Thus, also, in the exer- cise of an office, as that of churchwarden or beadle,a man may lay hands upon another, to turn him out of the church, and prevent his disturbing the congregation.” If an officer, having a warrant against one who will not suffer himself to be arrested, beat or wound him, in the attempt to take him, he may justify it. So, if a parent, in a reasonable manner, chastise his child, or a schoolmaster his scholar, or a jailer his prisoner, or if one confine a friend who is mad, and bind and beat him, &c., in such a manner as is proper in his circumstances, or if a man force a sword from one who offers to kill another, or if a man gently lay his hands on another, and thereby 1 Bae. Abr. 3 3 Strob. 137. 8 1 Hawk. P.C.110. It isan assault to throw a missile at the horse and driver of a vehicle, though it only struck the horse, and the driver was not injured. 8 Phila. 614. #1 Hawk. P. C. 110. The presentation of a pistol, and threatening to shoot, whilst commit- ting a burglary, will sustain an indictment for an assault, with intent to kill. 8 Phila. 612. 6818. & R. 347. See 2 Greenl. Evid. 3 8. 1 Cr. 0. 0.310. 3 Ibid. 435. 5 Ibid. 348. Itisa criminal assault recklessly to discharge a pistol, in a crowded car, though without intent to shoot any person, if a passenger was wounded thereby. 100 Penn. St. 324; s. c. 39 Leg. Int. 32. 6 9 Ala. 79. It is an assault to resist or obstruct a constahle making a distress for rent, though his authority is only by parol. 8 Phila. 609. 7 1 Hawk P. C. 110. 81P. & W. 380. And see 8 Phila. 614, 9 Bald. 600. But it is not an assault and bat- tery, to resist an officer making an arrest, without warrant, for a misdemeanor not committed in his view. 9 Phila. 595. : 10 1 Hawk. P. C.110. But one convicted of an aggravated assault cannot be sentenced to im- prisonment in the penitentiary, if no battery be found. 3 Luz. L. Obs. 194. ll Nels. tit. Assault. 182 ASSAULT AND BATTERY. stay him from exciting a dog against a third person, if I beat one (without wound. ing him, or throwing at him a dangerous weapon) who wrongfully endeavors, with violence, to dispossess me of my lands, or the goods of another, delivered to me, to be kept for him, and who will not desist upon my laying my hands gently on him, and disturbing him, or if a man beat, wound or maim one who makes an assault upon his person or that of his wife, parent, child or master, or if a man fight with, or beat one who attempts to kill any stranger, if the beating was absolutely necessary to obtain the good end proposed, or rendered necessary in self-defence—in all these cases, it seems the party may justify the assault and battery. It ig admissible for the defendant to show that the alleged battery was merely the correcting of a child by its parent, the correcting of a servant or scholar by his master, or the punishment of the criminal by the proper officer; but if the parent or master chastising the child, exceed the bounds of moderation and inflict cruel and merciless punishment, he is a trespasser, and liable to be punished by indict- ment. The law confides to schoolmasters and teachers a discretionary power in the infliction of punishment upon their pupils, and will not hold them responsible criminally, unless the punishment be such as to occasion permanent injury to the child, or be inflicted merely to gratify their own evil passions,? III. PRovIsIoNs OF THE PENAL CODE. Any person who shall be convicted of an assault and battery, or of an assault, shall be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court. If any person shall unlawfully and maliciously inflict upon another person, either with or without any weapon or instrument, any grievous bodily harm, or unlawfully cut, stab or wound any other person, every such person shall be guilty of a misde- meanor, and being convicted thereof, shall be sentenced to pay a fine not exceeding one thousand dollars, and to au imprisonment, either at labor by separate or solitary confinement, or to simple imprisonment, not exceeding three years.‘ IV. CoMPLAINT FOR AN ASSAULT AND BATTERY. MONROE COUNTY, ss. Before me, the subscriber, one of the justices of the peace in and for the county of Monroe, personally came A. B., of the township of S—, in the said county, yeoman, who, upon his solemn affirmation, according to law, saith, that on Friday last, being the fifth day of May, instant, at the township aforesaid, C. D., of the same township, currier, made an assault upon this affirmant, and then and there did violently beat and abuse him, and further saith not. : Affirmed and subscribed, May 8th, a. p. 1879, before me, J. R., Justice of the Peace. (Signed) A. B. V. WARRANT FOR AN ASSAULT AND BATTERY. MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Monroe: Wuereas, complaint hath been made before J. R., one of the justices of the peace in and for the county of Monroe, upon the solemn affirmation of A B., of the i i 0 , t .B., township aforesaid yeoman, that on Friday last, being the fifth day of May, instant, at the fomnsiin afore- ead, C. D., of the same township, currier, made an assault upon him, the said A. B., and is en and there did violently beat and abuse him. These are, therefore, to command you orthwith to take the said C. D., and bring him before the said J. R., to answer the said complaint, and further to be dealt with according to law. Witness the said J. R., at S. ao alecesad the eighth day of May, in the year of our Lord one thousand’ eight 1undred and seventy-nine. J. R., Justice of the Peace. lence Return of the Constable.—The within-named ©. D. is now in my custody. X. Y., Constable, May 8th, 1879. 1 Bao. Abr. A # Whart. Cr. L. 2 1259. 5 Clark 78, ‘ Tha. @ te una eae are ASSIGNMENTS FOR CREDITORS. 183 VI. On hearing, if the defendant admit the truth of the charge, or if the justice shall, by evidence, be satisfied it is well founded, he is to call upon the defendant tc enter into a recognisance, in such amount as he, the justice, shall think sufficient to insure his attendance at court to answer the charge; requiring also one surety. If the defendant neglect or refuse to give the bail required, he must be committed to jail. If the evidence shall be such as to satisfy the justice that the complainant was the aggressor, he should call upon him to give security for his appearance to answer at the next court of quarter sessions, unless the parties can be persuaded that it is a matter, a public inquiry into which would reflect no credit on either of them, and ought to be discontinued. If the defendant be discharged, he should on no account be charged any costs. If either of the parties be bound over, the justice should, as in every case of a binding over, make a return to the next court of the pro- ceedings had before him, to the end that such order may be taken on it as the public good shall require. By the revised penal code, justices of the peace are authorized to settle cases of assault and battery, where the complainant shall appear before him, and acknowledge to have received satisfaction for the injury, and thereupon, in his discretion, to dis- charge the defendant from his recognisance, or in case of committal, to discharge the defendant from arrest. This, however, does not extend to an assault and battery committed by or on any officer or minister of justice. In cases of a trivial nature, in which the public have no interest, and which in a vast majority of instances only expose the prosecutor and the defendant to contempt or shame, it is the duty of the justice to endeavor to exercise his influence, to do his best to induce them ta consent, that all further proceedings may be stayed. a Assiqnments for Creditors. I. Of void assignments. III. Proceedings on an assignment. II. Of preferences in assignments, I. OF VoID ASSIGNMENTS. InasMucH as the proceeds of property in the hands of an assignee for the benefit of creditors, under a void assignment, are liable to be attached by the judgment creditors of the assignor, by process of attachment in execution, it is of great importance that a justice of the peace should be well instructed in the forms which are required to render such an assignment valid.? And this is regulated by the act of 24th March 1818, which provides that all assignments for the benefit of creditors, ‘‘ which shall not be recorded in the office for recording of deeds, in the county in which such assignor resides, within thirty days after the execution thereof, shall be considered null and void as against any of the creditors of the said assignor.’”*? ‘The thirty days begin to run from the time of executing the instrument, not from its delivery to the assignee.’ A partial assignment is within the act, and must be recorded:* and an assign- ment of the surplus remaining after such partial assignment.’ Aad so isa power of attorney to collect moneys and pay them to certain creditors, in a prescribed order of preference.® And also, an absolute conveyance, with accompanying declara- tion of a trust ;? and a lease reserving rent in trust for the benefit of creditors, is within the act.® But a mortgage in trust to secure certain creditors is not within the act ;® nor is a judgment in trust for creditors; nor an assignment made directly to the creditors beneficially interested in it, either as collateral security, or in satisfaction." To 15 W.& 8.103. 5 Penn. St. 39. 13 Ibid. TA Tbid. 477. 34 Ibid. 152. 07. 8 32 Ibid. 458. 40 Ibid. 269. 2 Purd. 142. 94W.& S&S. 383. 103 Penn. St. 374. 8 46 Penn. St. 415. 10 26 Penn. St.92, 1 Chest. Co. R.97. (bid. 34, * 2 Whart. 240. 18 Leg. Int. 236. 11 24 Penn. St. 482, 31 Ibid. 502. And see 5 5 Whart. 280. 3 Phila. 454. 38 Penn. St. 382. 44 Ibid. 92. 1 § 12 Penn. St. 164. Gr. 212. 21 Penn. St. 77, 83. 33 Ibid. 414, 184 ASSIGNMENTS FOR CREDITORS. bring a case within the act. there must be a cestui que trust, with an adverse interest to that of the assignee There must also be a transfer of the property ; more than a mere transmission of its custody or management.” The assignment must be recorded in the proper county, although the personal property be situated in another state.® But the act does not apply to an assignment by a resident of another state." And where an assignment includes as well real as personal estate, it must be recorded not only in the county where the assignor resides, but also in the county where the land is situate, or it 1s not valid as against a subsequent purchaser from the assignor, without notice.® : : ; An unrecorded assignment is valid as to a subsequent voluntary assignee.® Ana an unrecorded mortgage is a lien as against an assignee of the mortgagor in trust for the benefit of creditors; for he is neither a creditor nor a purchaser for value." . : In order to give effect to a deed of assignment, as against the creditors of the assignor, it is necessary that there should be a delivery of it to the assignee. But an actual manual delivery is not required ; the execution of an assignment to a trustee, without his previous knowledge or assent, and the delivery of it to a mes- senger to be conveyed to him, is enough, if he subsequently assent to it, and accept the trust.? So, the deposit of it in the post-office directed to the assignee, is equally available ; and so is a delivery to a third person for the use of the assignee. The act of 3d May 1855 provides, that “ whenever any person making any assign- ment of his or her estate situate within this commonwealth, for the benefit of creditors, shall be resident out of this state, such assignment may be recorded within any county, where such estate, real or personal, may be, and take effect from its date. Provided, That no bond fide purchaser, mortgagee or creditor having a lien thereon before the recording in the same county, and not having had previous actual notice thereof, shall be affected or prejudiced: and the courts of common pleas may dismiss or appoint trustees under such assignment, as in other cases.” By act 23d April 1857, this is extended to prior assignments.” The resolution on the 21st January 1843 provides, that ‘it shall not be lawful for any company incorporated by the laws of this commonwealth, and empowered to construct, make and manage any railroad, canal or other public internal improve- ment, while the debts and liabilities, or any part thereof, incurred by the said company to contractors, laborers and workmen, employed in the construction or repair of said improvement, remain unpaid, to execute a general or partial assign- ment, conveyance, mortgage or other transfer, of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer, shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, creditors as afore- said.”!* And the act of 4th April 1862 gives a remedy in such case, by scire fucias against the assignee. A civil engineer is not a laborer or workman, within the protection of the act; nor a sub-contractor.” The act creates a lien of indefinite duration on the road, in favor of the persons enumerated therein, which has precedence over every right . that can be acquired by or under any mortgage made after the debt was contracted ; and which is not merged in any judgment obtained by the preferred creditor for his claim, nor by any proceedings in scire facias upon such judgment; in whatever 142 Penn. St, 441. Ibid. 235. 44 Ibid. 92. T 32 Penn. St. 121. An insolvent debtor may prefer one creditor either 8 5 W. 343. by judgment or deed, or in any manner except by 9 1 Binn. 502. an assignment in trust. 38 Penn. St. 446. 10 5 W. 343, . ena, - > S. & R. 318. And see 85 Penn. St. 231. 1. 499. : urd. 143. If the assignment be not 80 re- 417 Ibid. 91. 18 Ibid. 185, 1 Phila. 29. corded, a foreign stesiuiait will bind the prop- 5 15 Penn. St. 399. _Butif it be duly recorded in erty. 50 Penn, St. 230. See 85 Ibid. 231. 14 ie proper ee it alee shown that pur- W. N.C. 285. chasers in another county had notico of the as- B Purd. 1 fs signment. 102 Penn. St. 585. Seo 13 W.N.C. N.C, 56. per epee tae merken 505. Purd, 13 6 4 Penn. St. 274. Andsce5 W.& 8.100, 1 8 ree Pars. 472. 7 Penn. St. 499. 16 84 Penn. St. 168 1144 Ibid. 92. 96 Ibid. 355, ASSIGNMENTS FOR CREDITORS. 185 shape the debt may be, it has the benefit of the privilege given by the act. The act of 1862 provides a remedy for its enforcement; but it does not extend the privileges conferred.? II. Or PREFERENCES IN ASSIGNMENTS. A debtor may make a voluntary assignment for the benefit of his creditors, of his estate real or personal, or any part thereof, but he may not, in and by the instrument of assignment, create and reserve an interest for himself or his family. Such an instrument is void under the statute of 13 Eliz., which avoids all conveyances made with intent to delay, hinder or defraud creditors.’ An assignment stipulating for a release and excepting the household furniture of the assignors and property exempt from execution, is voidable by creditors.‘ But a reservation of property to the amount of $300, such as is exempt from levy and sale by the act of 1849, will not avoid the deed; nor will an exception of certain specific property. The acts of 1843 and 1849, have imposed the further restriction upon assignors, that they shall not prefer one creditor or set of creditors to another; and have avoided all such attempts to give a preference. ‘« All assignments of property in trust which shall hereafter be made by debtors to trustees, on account of inability at the time of the assignments to pay their debts, to prefer one or more creditors (except for the payment of wages of labor), shall be held and construed to inure to the benefit of all the creditors in proportion to their respective demands; and all such assignments shall be subject in all respects to the laws now in force relative to voluntary assignments: Provided, That the claims of laborers thus preferred shall not severally exceed the sum of fifty dollars.’’ “ Any condition in assignments of property made by debtors to trustees on account of inability at the time of the assignment to pay their debts, within the meaning of the act, entitled ‘An act to prevent preferences in assignments,’ approved April 17th, 1843, for the payment of creditors only who shall execute a release, shall be taken as a preference in favor of such creditors, and be void, and the assignment be held and construed to inure to the benefit of all the creditors in proportion to their respective demands.’” The act of 1843 does not invalidate the assignment; it only avoids preferences in assignments, and makes them to operate for the benefit of all the creditors of the assignor as if such preferences were not inserted.* Nor does it prohibit a compo- sition with a part of the creditors ;? nor an assignment of partnership property for the payment of the firm debts only; for such assignment in no way hinders the several creditors from reaching the surplus remaining after payment of the debts of the partnership." Nor does it prevent a debtor from assigning a particular chose in action directly to a creditor, for the purpose of securing his debt, although the effect may be to give him a preference over the other creditors.” : Judgments confessed to secure creditors are not such preferences as are avoided by this act. It goes no further than to forbid preferences in and by the instru- ment by which the debtor surrenders to his creditors all dominion over his property. When property has been actually levied upon by the sheriff, and an assignment is made, pending the levy, if the execution-creditors consent to a sale by the assignee, he is justified in first paying the amount of their executions, and the necessary costs of the levy; if, however, no actual levy was made, and the executions were issued for the mere purpose of giving the creditors a preference, such payments ought not to be allowed.” : The wages of laborers are not only exempted from the operation of the act of 1843 1 22 Wall. 424. 79 Penn. St. 60. 85 Ibid. 25. 918 Penn. St. 23 Ibid. 481. 2 96 Penn. St. 355. 10 21 Ibid. 77, 83. $6 Binn. 344. 128.4 R. 201. 1R.163. 2 M33Tbid. 414. ; P.& W.92. 3 Thid. 91. 121 @r. 212. But it applies to an assignment 426 Penn. St. 473. 49 Ibid. 465. 100 Ibid. whereby a part of the assignor’s property is as- 582. : signed to be divided amongst certain named cred- 5 36 Ibid. 258. And see 38 Ibid. 160. 5 Phila. itors, prorata, there being other creditors, but not 83. sufficient remaining property to pay them. 8 Act 17 April 1843. Purd. 139. 18 7 Penn. St. 449. 43 Leg. Int. 7. T Act 16 April 1849 34. Purd. 140. 4 19 Ibid. 59, 61. 20 Ibid. 37, 63, 152. 818 Penn. St. 185. Ibid. 331. % 2 Pars. 103. 186 ASSIGNMENTS FOR CREDITORS. but they are further protected by the act of 1872 (as amended in 1891), which pro- vides that ‘‘ all moneys that may be due or hereafter become due for labor and services rendered by any miner or mechanic, servant girl at hotels, boarding-houses, restaurants or in private families, or any other servant and helper in and about said houses of en- tertainment and private families, porter, hostler or any other person employed in and about livery stables or hotels, laundryman or washerwoman, seamster or seamstress employed by merchant tailors or by any other person, milliner, dressmaker, clothier, shirtmaker or clerk employed in stores or elsewhere, hand laborer, including farm laborer or any other kind of laborer, printer, apprentice and all other tradesmen hired for wages or salary from any person or persons, chartered company, joint-stock company, limited partnership or other partnership, either as owner, lessee, contractor or under-owner, whether at so much per diem or otherwise, for any period not ex- ceeding six months preceding the sale or transfer of the real or personal property, works, mines, manufactories or business or other property connected therewith in carrying on the same of said person or persons, chartered company, joint-stock com- pany, limited partnership or other partnership, by execution or otherwise, on account of the death or insolvency of such employer or employers, shall be a lien upon said real or personal property, mine, manufactory, business or other property in and about, or used in carrying on said business or in connection therewith, to the extent of the interest of such employer or employers in said property, and shall be preferred and first paid out of the proceeds of the sale of such real and personal property, mine, manufactory, business or other property as aforesaid: Provided, however, That the claim thus preferred shall not exceed two hundred dollars: And provided further, That this act shall not be so construed as to impair contracts existing, or liens of record vested prior to its passage: And provided further, That no such claim shall be a lien upon any real estate, unless the same be filed in the prothonotary’s office of the county in which such real estate is situated, within three months after the same becomes due and owing, in the same manner as mechanics’ liens are now filed.? A household servant who is employed upon the understanding that she is to be paid what her services are worth, is entitled to a preference out of a fund raised bya sheriff’s sale of her employer's goods.?, Where a tailor-shop and merchant-tailoring store were a part of the same business, and the contents of the store were sold under execution, it was held that the wages of tailors who worked in the tailor-shop were entitled toa preference.* A travelling salesman, on commission, for a furniture manu- factory, is not a clerk, laborer or tradesman within the meaning of this act. This act includes farm laborers and all other kinds of laborers who work for wages or sala- ries.° Laborers employed in peeling bark and squaring timber have a lien for wages upon the fund raised by the sale of the contractor’s teams and camp equipage.® This act does not apply to the use and expense and wear and tear of a steam-engine and separator used in threshing. Under this act, a father cannot claim wages for his own use for labor done by his minor sons." III. PRockEDINGS ON AN ASSIGNMENT. In every case in which any person makes an assignment of his estate, real or per- sonal, or of any part thereof, in trust for the benefit of creditors, it is the duty of the assignee, within thirty days after the execution thereof, to file in the office of the pro- thonotary of the court of common pleas of the county in which the assignor resides, an inventory or schedule of the estate or effects so assigned, accompanied by an affi- davit of the assignee that the same is a full and complete inventory thereof, so far as the same has come to his knowledge. ; The court of common pleas thereupon appoints two or more disinterested and com- petent persons, to appraise the estate and effects so assigned. These appraisers, or two of them, having at first taken an oath or affirmation, before some person having authority to administer oath, to discharge their duties with fidelity, are required forthwith to proceed and make an appraisement of the estate and effects assigned, 1 Purd. 2074. 5 ‘ 2156 Penn. St. 384, oi Thi io 3156 Penn. St. 293, 1 Ibid, 237. 412 0. C. 363. ASSIGNMENTS FOR CREDITORS. 187 according to the best of their judgment ; and having completed the same, to return the inventory and appraisement to the court, where it is filed of record. The appraisers are entitled, as compensation for their services, to receive a sum not exceeding one dollar for each day diligently employed by them in the performance of their duties. The appraisement having been filed, the assignee is required to give bond, with at least two sufficient sureties, to be approved by one of the judges of the court of common pleas, in double the amount of the appraised value of the estate so assigned ; which bond is filed in the prothonotary’s office, and by him entered of record, and inures to the use of all persons interested in the assigned estate! If security be not given, the act 21st March 1831 empowers the court to dismiss the assignees and to appoint others.” The assignee may act before giving bond. If he neglect to file an inventory or give bond, the remedy is to cite him before the court, to show cause why he should not be dismissed.* Although the act of assembly requires that the assignee should give bond with two sufficient sureties, to be approved by one of the judges, yet a bond with but one surety and which does not appear to have been approved, is not void ; and it may be enforced against the assignee and surety. If any of the assigned property be the subject of a suit pending, the assignee is authorized by the act of 13th June 1840, to appeal from an award of arbitrators therein, and also to sue out a writ of’ error upon the judgment that may be rendered, without paying costs or giving security; unless in the former case, the assignee shall have taken out the rule of reference.’ The act 4th May 1864, § 1,$ provides that any assignor, under whose assignment in trust for the benefit of creditors, either by general words or particular description, there have been transferred any articles of household furniture or things of domestic use, may, after the appraisement thereof, apply to the court of common pleas of the proper county, to have set aside for the use of the said assignor and family, any of the said articles and things, not exceeding in value, at the appraisement thereof, three hundred dollars ; and the court may, if no cause be shown to the contrary, after due notice to creditors, order that the same be released from the assigned estate and handed to the assignor." Whenever it shall be made to appear, to the satisfaction of the court having juris- diction of the accounts of an assignor under any assignment in trust for creditors, either upon the report of an auditor or otherwise, after notice, by advertisement, for such length of time as may be ordered by the court, that all the undisputed claims upon the assigned fund or estate have been paid or released, and security to the satisfaction of said court, as hereinafter set forth, shall be given for the payment of any and all claims in dispute, the said court may order and direct the assignee to reconvey to the assignor, all the assigned estate remaining in his hands and possession, and all outstanding interest in the assigned estate; and the deed of reconveyance shall be acknowledged in open court, and entered among the records thereof; and thereupon the said estate shall be holden free and discharged from any and all of the trusts of said assignment. ; . The security required by this act, shall be by deposit of money, or of sufficient and available securities for money, under the direction of the court, or by mortgage on real estate, which shall inure to the benefit of the parties interested, who may sue for the same, in the name of the commonwealth, in like manner as official bonds are sued.® The act 17th February 1876 empowers the court of common pleas to make orders for the sale of incumbered real estate. And the act 10th June 1881, provides that the assignee shall accept the receipt of the purchaser, of a lien creditor, for his proportion of the purchase-money; and that on a question of distribution, the court shall proceed to determine the question of lien, as in case of a sheriff's sale. 1 Act 14 June 1836, Purd. 143. The form of 6 Purd, 144. the bond is prescribed by the act 4 June 1883. 7 See 76 Penn. St. 116. Ibid. As to the responsibility of the sureties, 8 Act 4 May 1864 32. Purd. 144. see 48 Penn. St. 328, 342. 102 Ibid. 450. 9 Thid. 2 3. 2 Purd. 143, note b. 10 Purd. (40. oe nee 56 W. & S. 326. ll Tbid. 141. As this is a judicial sale, the 48 W. 228. The assignment passes the title, liens oniy bear interest to the time of confirma- though the bond be not duly filed and approved. tion. 89 Penn. St. 276. 90 Ibid. 224. 94 Ibid. 49 Penn. St. 465, 522. Unless the fund be invested, and is draw- 5 Purd. 144. ing interest. 96 Ibid. 347. , 188 ] Assumpsit. THE action of assumpsit lies where a party claims damages for breach of simple contract, that is, a promise not under seal. Such promises may be express or im- plied; and the law always implies a promise to do that which a party is legally Hable to perform. This remedy is, consequently, of very large and extensive application. And the acts of assembly give to justices of the peace, jurisdiction of all causes of action arising from contract, either express or implied, where the sum demanded does not exceed $300, except in cases of real contract where the title to lands may come in question, or actions upon promise of marriage. They have, consequently, jurisdiction of most cases of asswmpsit, with the exception of those which are specially excluded by the statute. ; i In every action of asswmpsit there ought to be a consideration, promise, and breach of promise.? To make a consideration sufficient in law to support an assump- sit, there must be some benefit arising to the defendant or some injury or loss to the plaintiff® It is not essential that the consideration should be adequate in point of actual value; it is sufficient that a slight benefit be conferred by the plaintiff on the defendant, or a third person; or even if the plaintiff sustain the least injury, inconvenience or detriment, or subject himself to any obligation, without benefiting the defendant or any other person. A consideration is sufficient, if it arise from any act of the plaintiff, from which the defendant or a stranger derives any benefit, however small, if such act is performed by the plaintiff, with the assent, express or implied, of the defendant; or by reason of any damage, or any suspen- sion or forbearance of the plaintiff’s right at law or in equity; or any possibility of loss occasioned to the plaintiff by the promise of another, although no actual benefit accrues to the party undertaking.* Thus, assumpstt may be maintained on a promise to subscribe a certain amount towards the building of a church.® A moral or equitable obligation is a sufficient consideration for an assumption.’ But it must be such as was once a legal obligation; as a promise to pay a debt barred by the statute of limitations ; or from which the debtor has been discharged by bankruptcy; for when a man is under a moral obligation which no court of law or equity can enforce, and he promises, the honesty and rectitude of the thing is a consideration.” A compromise of a doubtful claim is a sufficient consideration to support a promise. And a promise to pay the debt of another, in consideration that the creditor would wait, forbear or give time indefinitely, or for a reasonable time, at the instance and request of the defendant, is binding.® Such contract, however, must be in writing.” The law will not aid in enforcing any contract that is illegal, or the consideration of which is inconsistent with public policy and sound morality, or the integrity of the domestic, civil or political institutions of the state.” And where part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, it avoids the whole? The test, whether a demand connected with an illegal transaction is capable of being enforced by law, is, whether the plaintiff requires the aid of the illegal transaction to establish his case. In order to constitute a valid promise, it is not necessary that it should be made to the plaintiff himself; if made to a third person with a view to be communicated to the plaintiff, it is sufficient. In general, he must be made plaintiff from whom 1 Steph. Plead. 18. ® § Binn. 33. 8 W.&S.10. 24 Penn. St- 367 7 Leon, 405. Privity of contract is essential. 92 Ibid. 289. 11 W.N. C. 165. 16 Penn. St. 380. 7 1 Penn. St. 451. 8 2 Binn. 509. 14 Phila. 647. 8 6 W. 421." 9 Ibid. 230. 46 Penn, St. 252. 42W.105. 5 Penn. St. 162. 13 Ibid. 53. 20 °5R.60. 2 Penn. St. 30. Ibid. 303. 21 Ibid. 237. 10 See tit. “ Guarantee.” 5 18 Penn, St. 13. 20 Ibid. 260, 383 Ibid. 114. "5 W. & 8. 321. 6 Penn. St, 473. 87 Ibid. 210. Otherwiso, where no congregation 5 Penn. St. 521. 99 Ibid. 123. has been formed. 10 Leg. Int.110. And see 7 118. & R.164. 28 Penn. St. 406. W.N. C, 439. 1 Penn. St. 334. SSE ATTACHMENTS, 189 the consideration flowed ;! but the action will lie by a party beneficially interested in a contract made by another.? Thus, if one pay money to another for the use of a third person, or, having money belonging to another, agree with that other to pay it to a third, action lies by the person beneficially interested. But where the contract is for the benefit of the contracting party, and the third person is a stranger to the consideration, the action must be by the promisee.2 Nor can a third person beneficially interested, maintain an action on the promise, where the promisor remains liable to a suit by the promisee or his personal representatives.‘ A conveyance of land “under and subject” to an existing mortgage, is a cove- nant of indemnity only as between the grantor and grantee for the protection of the former, in the absence of an express or implied agreement to assume the payment thereof; the acceptance, by a remote grantee, of such conveyance, does not raise an implied assumpsit in favor of the holder of the mortgage § An assignee of a chose in action may maintain, in his own name, an action of assumpsit, upon an express promise by the defendant to pay him, without any new consideration® An express promise of a debtor, to pay the assignee of his creditor, will bind him as firmly as if it had originated in a consideration moving from him, and been his from the outset.” Where one takes the personal property of another, the owner may waive the tort, and maintain assumpsit for its value.* Asswmpsit for goods sold and delivered may be maintained, where goods have been delivered by the plaintiff to the defendant, though not ordered, if retained by him; the retention implies a promise to pay the market price of the goods.2 But assumpsié will not lie for the value of a chattel illegally detained, but not actually converted.” By the act of 25 May 1887, all demands heretofore recoverable in debt, assumpsit or covenant, are now recoverable in asswmpsit."' Attachment by Justices (Domestic). I. A DOMESTIC ATTACHMENT is so called because it may issue against persons who are inhabitants, have their domicil, or are domesticated here, in cases where they have been guilty of certain acts of absconding, absenting or concealment ; and is, so far as respects creditors, in the nature of a commission of bankruptcy, because it is for the benefit of all the creditors, and all the property of the debtor is seized and distributed among them pro rata. 1. It can be issued only against persons who are inhabitants of the state. 2. It cannot be issued without oath or affirmation first made. 8. It is for the benefit of all the defendant’s creditors, and not for the benefit of the plaintiff alone. ae ; 4, All the property of the persons proceeded against is placed in the custody of two freeholders [trustees], who are to distribute it among the creditors. ; 5. It can only be dissolved by satisfying the court [ justice], that the parties were not liable to the attachment. The act of 22d August 1752, as amended by that of 4th December 1807, pro- vides that if any person shall absent him or herself out of this government, or abscond from his or her usual place of abode, not taking care to satisfy his or her just debts, it shall and may be lawful for any justice of the peace where such person’s estate may be found, to grant a writ of attachment for any debt not exceeding one hundred dollars, directed to any constable of the same county, to attach the goods and chattels, or other effects of such person, to answer the creditor. 1 5 Penn. St. 521. 617 Penn St: 169. 3 Leg. & Ins. Rep. 61. 27 W. & §. 94. 74 Leg. & Ins. Rep.27. . 3 6 W. 182. See 2 Phila. 63. 40 Penn. St. 448. 814 Penn. St. 295. 35 Ibid. 351. 2 Greeni 4 85 Penn. St. 303. Evid. 23 108, 120, 226. 5 88 Ibid. 450. Ibid. 465. 92 Ibid. 491. 93 9° 64 Penn. St. 383. Ibid. 42. See act 12 June 1878, Purd.1837,as 101 W N.C. 84, 102 Penn. St, 555. to future cases. That act has no retrospective 11 Purd. 1728. ion. . St. 78. 12 Serg. Attach, 1, 2, 4, 5, 6. operation. 90 Penn. St. 7: Carn i 2, 190 ATTACHMENTS. It is not necessary to authorize the issuing of a domestic attachment by a justice of the peace, that the defendant should have absconded or secreted himself for the space of six days; that provision of the act of 1752 was repealed by the act of 1807.1 The absence of a theatrical manager in pursuance of his business, is no ground for a domestic attachment.? An attachment issued by a justice of the peace may be executed by a deputy-constable.? A domestic attachment may issue upon a debt not due, if there be in other respects sufficient grounds for it.* The acts of assembly provide further, that before the granting any such attach- ment, the person or persous requesting the same, or some other credible person or persons for him or them, shall, upon oath or affirmation, declare that the defendant in such attachment is indebted to the plaintiff therein named in a sum not exceed- ing one hundred dollars, and that the defendant has absconded or departed from the place of his usual abode in this state, or has remained absent from the state, or has confined himself in his own house, or concealed himself elsewhere, with design to defraud his creditors, as is believed, and that the defendant has not left a clear fee-simple estate in lands or tenements within this commonwealth sufficient to pay his debts, so far as the plaintiff or deponent knows or believes; which oath or affirmation the justice of the peace that grants such writ, is empowered and required to administer. And if any attachment be granted out otherwise, or contrary to the true intent and meaning of the act, the justice of the peace so granting the same, shall, for every such offence, forfeit the sum of one hundred dollars, for the use of him or her that will-sue for the same. It is not necessary that the affidavit to ground a domestic attachment should aver the defendant’s residence But an affidavit which states the causes for which the attachment issued in the alternative, e. g., that the defendant ‘“ absconded or departed from the place of his usual abode, or secreted himself with design,” &c., is bad, and the writ must be quashed.’ In an action for maliciously suing out a domestic attachment, is not enough for the defence, that the suspiciousness of the plaintiff's conduct had made recourse to an attachment a measure of reasonable precaution, irrespective of the fraudulent intention of the debtor. ® As soon as the justice of the peace before whom the writ of attachment is return- able, accepts the constable’s return thereof, he is required immediately to appoint two substantial freeholders to take into their custody the goods and chattels attached, for which they shall be accountable until they dispose of the same, as directed by the act of assembly. The right of the trustees to the defendant’s goods does not relate back to the issuing of the attachment, as in cases of proceedings in the common pleas.° They are entitled to the balance in the sheriff’s hands, after satisfying an execution.” Where a defendant against whom a domestic attachment had issued, transferred to G.a check for the payment of money, which G. applied to the payment of a debt for which he was security for the defendant, it was held, that an action would not lie, by the trustees, against G., to recover the amount of the check? The justice is also required forthwith to publish his proceedings by advertise- ment in the most public places, near the late dwelling-place of the defendant, and likewise in one or more public newspapers, appointing the time and place for all the creditors of the person against whose effects and estate the attachment is granted, to appear then and there, to discover and make proof of their demands, And if, after a full and careful examination, it shall appear that there is a just ane oe any person from the said defendant, exceeding the sum of one hundred os a t a the said antes shall no further proceed, but shall deliver and certify fag — of the court of common pleas of the same county, the said , and all proceedings thereon had before him ; whereupon further pro- ceedings shall be had in the court of common pleas, with like effect as if the writ of attachment had issued out of that court." 13.144. 1M. 75, 25 Phila. 83. re bh We 8. 201 83 P. & W. 230, ® Purd. 700. 44W.&8. 201, 03 P. & W. 280 5 Purd, 700-1, 1 Thid. 389. 61M. 75. 1 Wood. 221, 2 1W. & S. 108 "3 W. 144, 1M. 75, 2 Clark 79, See 1 18 Purd. 700, ATTACHMENTS. 191 When any attachment shall be granted by a justice of the peace, no second or other attachment issued by the said justice, or by any other justice within the same county, or by the court of common pleas of the said county, shall bind or affect the property of the defendant within the county, whilst the proceedings in the first writ of attachment remain undetermined.? When the justice shall accept of the return of an attachment from the constable, and it shall appear to him that any cattle or other chattels necessary to be main- tained at expense, or any perishable goods, have been attached, it shall be lawful for the justice to order sale of them to be made by the freeholders, within ten days ; of which public notice shall be given, at least six days before the sale thereof, by advertisements to be set up at the most public places near the place of sale. And the-money arising therefrom shall be lodged in the hands of the freeholders, to be attached or distributed among the creditors, in the manner directed and appointed by the act.” Perishable goods are such as are liable to perish before the term arrives at which the trustees are authorized to sell. Wines and liquors are not such perishable goods. But a shallop was ordered to be sold as a changeable commodity.‘ If no debt exceeding one hundred dollars shall appear to be due from the defendant, then the goods, chattels and other effects in the hands of the free- holpers shall be brought to an appraisement, but not sold (except chargeable or perishable goods), until the expiration of three months from the granting of the attachment, to the end that the debtor may have time to redeem them, if he sees fit. But if, after the expiration of three months, the debtor shall not appear and redeem them, on notice thereof being given to the justice, he shall forthwith order and direct the said freeholders to make sale thereof; and out of the money arising therefrom, and all other money then in their hands, arising from any part of the defendant’s estate (reasonable charges first deducted), to make payment to the cred- itors who shall appear and make proof of their debts within the said three months, in proportion to their respective debts, and the overplus, if any, to be returned to the owners. But before any such sale is made, the freeholders shall give at least ten days’ notice thereof, by advertising in the most public places the time and place of such sale. The freeholders, within six days after making sale aud distribution, shall render atrue account of their proceedings to the justice who granted the attachment, to be by him kept as a record of their proceedings therein® Justices of the peace and aldermen have like power with the courts of common pleas, to dissolve writs of attachment in cases within their jurisdiction, and upon the same proofs ; provided application be made for that purpose within twenty days after the return of the writ.” A domestic attachment may be dissolved on application of the defendant, sup- ported by affidavit, denying the allegations upon which the attachment was founded, and the justice being satisfied that the defendant was not liable to the attachment. It is sufficient to give notice of such application to the attaching-creditor ; notice to all the creditors is not required. The parties who have issued the process are bound to support it, when attacked.” Sa ee The dissolution of an attachment will not have the effect of invalidating any sale made by the trustees, or of any payments to them.” II. OavH oR AFFIRMATION PREVIOUSLY TO GRANTING AN ATTACHMENT. J.D. vs. Attachment not exceeding $100. R. R. DAUPHIN COUNTY, ss. ; J.D., of the township of S——, in the county of Dauphin, yeoman, upon his solemn affirmation doth declare, that R. R., of the same township, is indebted to him in a sum ge exceeding one hundred dollars, and that the said R. R. has absconded from the place of his 1 Purd. 701. 6 Purd. 701. : Ibid. ey 5 Clark 147. id. 41 Dall. 379. 9 Ibid. 2 Y. 277. 5 Pard. 701, z 10 Tbid. 192 ATTACHMENTS. usual abode in this state, with design to defraud his creditors, as is believed, and that the said R. R. has not left a clear fee- inpla estate in lands and tenements within this state sufficient to pay his debts, so far as the said J. J). knows or believes. : Affirmed and subscribed, May lst, 1879, (Signed) J.D. before me, J. R., Justice of the Peace. DoMESTIO ATTACHMENT. DAUPHIN COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Dauphin : We command you, that you attach R. R., of the township of S——,, in the county afore- said, by all and singular his goods and chattels or effects, in whose hands or possession soever the same may be found within this county, so that he appears before J. B., one of our justices of the peace in and for the said county, on the 6th day of May inst., at nine o'clock in the forenoon of that day, at his office in H——— township aforesaid, to answer J.D. of a plea of debt not exceeding one hundred dollars. Hereof fail not. Witness the id J. R., at S—— township aforesaid, the first day of May, a. pv. 1879. = re ; J.R., Justice of the Peace. [sEaL.] Constable's return.—Attached one feather bed and bedding, one cow, one barrel of cider, six Windsor chairs, one iron tea-kettle, two iron pots and one tub, Attached the same in the hands of David White, of Swatara township, tailor. So answers, : L. M., Constable of Swatara township. Or if the constable cannot find property of the defendant, he may return, “ The defend- ant has no goods and chattels within the county whereby he can be attached.” So answers, &c. APPOINTMENT OF FREEHOLDERS. DAUPHIN COUNTY, ss. To R. S. and D. C., of S—— township, greeting : You are hereby authorized and required to take into your custody all the goods and chattels and effects of R. R., of the township aforesaid, cordwainer, mentioned in the schedule hereunto annexed, and attached at the suit of J. D., for which you are to be accountable, until the same shall be disposed of according to law. Given under my hand and seal, at S—— township aforesaid, the 7th day of May, a. p. 1879. J. R., Justice of the Peace. [sEat.] SUMMONS AGAINST THE GARNISHEE. DAUPHIN COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S—, in the county of Dauphin, greeting : - Wurrzas, J. D., of the township aforesaid, yeoman, upon the first day of May inst., obtained an attachment from J. R., one of our justices of the peace in and for the county aforesaid, directed to you, wherein you were commanded to attach R. R., of the said township, by all and singular his goods and chattels, or other effects, in whose hands or possession soever the same might be found within this county, to answer the said J. D. of a plea of debt not exceeding one hundred dollars. And whereas, in pursuance of the said attachment, you, the said constable, did make return to the said justice, that you had attached sundry goods and effects of the said R. R. in the hands of D. W.. of the town- ship aforesaid, according to a schedule of the same goods and effeets annoxod to the said attachment. These are, therefore, to command you to summon the said D. W. to appear before the said J. R., at his office, in the township aforesaid, on the seventh day of May inst., at two o’clock in the afternoon of that day, to show cause, if any he hath, why he should not yield up the goods and effects, attached as aforesaid, in his hands for the use of the creditors of the said R. R. Hereof fail not. Witness the said J. R., at S—— township aforesaid, the 2d day of May, a. pv. 1879. ms J.R., Justice of the Peace. [sEat.] “Served on the within-named D. W., by producing to hi be origi informing him of the contents thereof,” ie cancer tees ip een ae ATTACHMENTS. 193 Novice To THE CREDITORS. Wauernas, in pursuance of an act of general assembly of the commonwealth of Penn- sylvania, an attachment hath been granted by the subscriber, one of the justices of the peace in and for the said county of Dauphin, at the instance of a certain J. D., of S—— township, in the county of Dauphin, against a certain R.R., of the township of S——, in the county aforesaid, whereon certain goods and chattels and effects of the said R. R. have been attached and are now in the custody of R. S. and D. ©. of the said township. This is, therefore, to give notice to the creditors of the said R. R., to appear on the tenth day of May 1879, at the house of W.M., of the township aforesaid, innkeeper, then and there to discover and make proof of their demands agreeable to the directions of the said act. J. R., Justice of the Peace. [szau.] ORDER TO FREEHOLDERS TO SELL CHARGEABLE AND PERISHABLE GOODS. DAUPHIN COUNTY, ss. To R. S. and D. C., of S—— township, greeting: Wuerzas, among other articles attached as the property of R. R., late of S—— town- ship, in the county of Dauphin, and now remaining in your custody, until further orders, there are one cow, and a barrel of cider, the former of which must necessarily be main- tained at expense, and both are liable to perish. You are, therefore, hereby required to make sale of the said cow and barrel of cider, within ten days from this date, first giving public notice thereof, at least six days before the sale, by advertisements to be set up at the most public places near the place of sale. Given under my hand and seal, at S—— township aforesaid, the 10th day of May, a. p. 1879. J. R., Justice of the Peace. [sEax.] ForM OF APPRAISEMENT. AN appraisement of the several goods and chattels attached at the suit of J. D. as the property of R. R., late of S township, in the county of Dauphin, cordwainer, by virtue of the warrant of J. R., Esq., one of the justices of the peace in and for the county of Dauphin, viz. : One feather bed and bedding, valued at - ; . . ‘ . $30.00 One brindled cow a oer é A c . i ‘ 7 . 25.00 Six Windsor chairs & So os . * : et ee . 8.00 One iron tea-kettle ia wen Si : é ‘ . 7 Fs ‘ - 1.00 Two iron pots ee a . . 3 me ~ . « 1.40 Onetub . . «© «© «© ‘ s - : ml 9a 3 50 One barrel of cider a ee 7 . . : é 3 . 2.00 June Ist, a. p. 1879. Appraised by us, J. G. and T. B., Appraisers. GENERAL ORDER TO FREEHOLDERS TO SELL. DAUPHIN COUNTY, ss. ‘ To R. S. and D. C., of —— township, greeting : Wuereas, three months are expired since the goods, chattels and effects of R. R., late of the township of S—— aforesaid, were attached, and notice hath been given to me that the said R. R. hath not appeared to redeem the said property. You are, therefore, hereby required and directed to make sale of the said goods, chattels and effects, and out of the money arising therefrom, and all other money in your hands from any part of the said R. B.'s estate arising, reasonable charges first deducted, you are to make payment to the creditors of the said R. R., who shall have appeared and made proof of their debt within the said three months, in proportion of their respective debts, returning the overplus, if any, to the said R. R. But before any sale shall be made, you are to give at least ten days’ notice thereof, by advertising in the most public places the time and place of such sale; and within six days next after making sale and distribution as aforesaid, you are to render a true account of your proceedings to me. Given under my hand and seal, at S—— township, aforesaid, the 20th day of August, a. p. 1879. J. R., Justice of the Peace. [sEat.] ADVERTISEMENT OF SALE. Poustic notice is hereby given, that by virtue of an order from J. B., one of the justices of the peace in and for the county of Dauphin, will be exposed to public sale, on Monday the 12th day of September next, at ten o'clock in the forenoon, at the house of W. H., ‘nnkeeper, in the township of S——, in the said county, one feather bed and bedding, six Windsor chairs, one iron tea-kettle, two iron pots, and one tub, attached as the property of R. R., late of the said township, cordwainer. Attendance will be given, and the terms Deter ager R. S.} Freeholders duly Sentemher Int 1879 2 ~ D.C.j appointed, &. [ 194 ] Attachment Against absent and fraudulent Debtors. Attachments against non-resident debtors. ae Form of plaintiffs bond. nr Attachments against fraudulent debtors. TX. Form of attachment. ITI Of the plaintiff’s bond. X. Forthcoming bond. IV Service of the attachment. XI. Affidavit to open judgment. V_ Proceedings before the justice. XII. Notice of rehearing. VI Of the lien of the attachment. XIII. Form of docket-entry. VIL Form of plaintiff's affidavit. I, ATTACHMENTS AGAINST NON-RESIDENT DEBTORS. Wuenever by the provisions of the twenty-fourth section of this act no capias can issue [that is, for any demand arising from contract, except for money collected by a public officer, or for official misconduct], and the defendant shall reside out of the county, he shall be proceeded against by summons, or attachment, returnable not less than two, nor more than four days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein.’ — It shall be the duty of any alderman or justice of the peace, for any claims not exceeding one hundred dollars, to issue an attachment against any defendant, on the application of the plaintiff, in any case where, by the provisions of any law now existing, or hereafter to be passed, no capias can issue, upon proof by the affidavit of the plaintiff, or some other person or persons, to the satisfaction of the alderman or justice of the peace that the defendant is a non-resident of this commonwealth ;? which affidavit shall also specify the amount of the plaintiffs claim, or the bal- ance thereof, over and above all discounts which the defendant may have against him: Provided, That before such attachment shall issue, the plaintiff, or some one in his behalf, shall execute a bond, in at least double the amount of the plaintiff's claim, with good and sufficient security, conditioned that in case the plaintiff shall fail to recover a judgment, at least of one-half the amount of his claim, he shall pay to the defendant his damages for the wrongful taking of any property over and above an amount sufficient to satisfy the judgment and costs, and that if the plaintiff shall fail in his action, he shall pay to the defendant his legal costs, and all damages which he may sustain by reason of said attachment.® Every such attachment shall be made returnable not less than two nor more than four days from the date thereof, and shall be served by the constable to whom the same shall be directed, by attaching so much of the defendant’s pro- perty as will be sufficient to pay the debt demanded, and by delivering to hima copy of the said attachment, with an inventory of the property attached, if he can be found in the county; if not so found, then by leaving a copy of said attachment and inventory with the person in whose possession the said property may be found The constable shall state specifically the manner in which he shall have served such attachment, and it shall be his duty to take the property attached into his possession, unless the defendant, or some other person for him, shall enter into a bond, with sufficient surety, in at least double the amount of the plaintiff’s claim, conditioned that in the event of the plaintiff recovering judgment against him, he will pay the debt and costs, at the expiration of the stay of execution given by law to freeholders, or that he will surrender up the property attached to any officer having an execution against him on a judgment recovered in such attachment; if such attachment shall be returned personally served upon the defendant, at least two days before the return-day thereof, the alderman or justice of the peace shall, on the return-day, proceed to hear and determine the same in the same manner as upon a summons returned personally served ; but if the same shall not have been so served, the alderman or justice of the peace shall issue a 1 Act 12 July 1842 2 26. Purd. 1136, 3 Act 8 May 1874 2 A non-resident plaintiff may sue anon-resi- # Ibid, 3 2. aR dent defondant under this act. 42 Leg. Int. 415, ATTACHMENTS. 195 summons against the defendant, returnable as summonses issued by justices of the peace are now by law returnable, and if the said summons shall be returned per- sonally served, or that the defendant, after diligent inquiry, cannot be found in the county, then, in either case, the alderman or justice of the peace shall proceed to hear i determine the cause, in the same manner as upon a summons personally served. A judgment obtained before any alderman or justice of the peace, in any suit commenced by attachment, when the defendant shall not be personally served with the attachment or summons, and shall not appear, shall be only presumptive evi-. dence of indebtedness, in any scire facias that may be brought thereon, and may be disproven by the defendant; and no execution issued upon such judgment shall be levied upon any other property than such as was seized by virtue of said attachment; nor shall any defendant in such case be barred of any set-off which he may have against the plaintiff; and the right of appeal, either as to the original judgment, or upon a judgment rendered after the issuing of a scire facias, shall be the same as now regulated in proceedings before aldermen or justices of the peace, upon summons personally served: And provided, That any exemption law of this commonwealth, shall not be construed to extend to any debtor not a resident thereof? The jurisdiction conferred upon justices of the peace, by the act of 1842, to proceed by attachment against fraudulent debtors, was enlarged by the act of 1879, so as to include cases where the sum demanded does not exceed three hundred dol- lars? And this would appear to extend to proceedings against non-resident debtors, under the act of 1874.4 II. ATTACHMENTS AGAINST FRAUDULENT DEBTORS. It shall be the duty of any alderman or justice of the peace to issue an attach- ment against any defendant, on the application of the plaintiff, in any case, where, by the provisions of this act, no capias can issue, upon proof, by the affidavit of the plaintiff, or some other person or persons, to the satisfaction of the alderman or justice, that the defendant is about to remove from the county any of his pro- perty, with intent to defraud his creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with the like fraudu- lent intent; which affidavit shall also specify the amount of the plaintiff’s claim, or the balance thereof, over and above all discounts which the defendant may have against him.® The plaintiff's affidavit must state with precision one or more of the causes for issuing the attachment mentioned in this section ; if several causes, as, for instance, that the defendant has assigned or secreted his property, with the intent mentioned in the act, are set forth in the alternative, the affidavit will be insufficient.’ The court of common pleas of Philadelphia county has decided, that a defend- ant against whom an attachment has been issued, under the act of 1842, may traverse (or deny) the cause for issuing the writ, set forth in the plaintiff’s affidavit. The proper mode for so doing is by plea in abatement.’ Whether the defendant was about to remove his property, is matter in abatement, to be pleaded.® The truth of the facts on which an attachment is founded, can be investigated only on a plea in abatement, and not on a motion? An attachment, if, sufficient on its face, is a justification to the officer serving it, although in fact, issued on an insufficient affidavit. Irregularity in the affidavit and bond to support an attachment, should be taken advantage of by motion to quash the attachment.” And although the affidavit made, 1 Act 8 May 1874 2 3. Purd. 1138. against an absconding debtor. 4 Leg. Gaz. 30. 2 Thid. 2 rid See pas 130. 62 Clark 79. 1M. 75, 3 W.144. 4 N.Y. 3 105 Penn. St. 610. 385. Contra, 11 Ibid. 339. ‘And see 1 Wood. 221. 4 The case in 14 W. N. CO. 258, was decided 7? McKinty v. Shore. prior to the decision of the supreme court in 105 8 7 Humph. 165, Penn. St. 610, and appears to be overruled by it. 910 Mo. 350. 6 Ala. 139. igi And see 42 Leg. Int. 415. 10 23 Penn. St. 189, 1 Barb. 552. 24 Wend. 485. 5 Act 12 July 1842 3 27. Purd.1136. Under this 1 1 Morris 54. section, a justice cannot issue an attachment 196 ATTACHMENTS. and bond executed by the plaintiff to found an attachment, be defective, the defend- ant waives the irregularity by appearing and confessing judgment.’ ‘An affidevit to found an attachment set forth “ that the said defendants were about to remove their property from this state to the injury of the plaintiff: this fact was traversed by plea in abatement, and under this issue, the defendants offered to prove that one of them had sufficient unincumbered personal property in the state to discharge the plaintiff's demand; the evidence was objected to and excluded by the court: held, that the court erred in excluding the evidence.” To sustain an attachment on the ground that the debtor “ is about to remove his pro- perty from this state, to the injury of such ereditor,” two things must coneur : first, the debtor must be about to remove his property from the state; and secondly, such removal, if effected, must be to the injury of the creditor. The single fact that he is about to remove his property from the state, will not justify a creditor in seizing it by attachment.? ; : If the purpose of change of residence be an honest one, the intent to defraud is not to be legally presumed from the mere fact that the debtor is about to remove his goods ; it is the intent of the removal, not its effect, which must determine whether it is lawful.* III. Or THE PLAINTIFF'S BOND. Before such attachment shall issue, the plaintiff, or some one in his behalf, shall execute a bond, in the penalty of at least double the amount of the claim, with good and sufficient sureties, conditioned that in case the plaintiff shall fail to recover a judgment of at least one-half the amount of his claim, he shall pay to the defendant his damages for the wrongful taking of any property over and above an amount suffi- cient to satisfy the judgment and costs, and that if the plaintiff shall fail in his action he shall pay to the defendant his legal costs, and all damages which he may sustain by reason of the said attachment.® There must be at least two sureties to the bond, besides the plaintiff; wherever an act of assembly speaks of sureties in the plural, a single surety, however respon- sible, will not satisfy the requirements of the law.* No one but the defendant can take advantage of a defect in the bond.’ In a proceeding by attachment, under this section, where the justice entered a nonsuit because a copy had not been served on the defendant, the bond given by the plaintiff is binding on his sureties, even though the clause as to failure in the action, has been omitted in it. Such bond is not void against a surety merely because the penalty to a small extent exceeds double the amount of the plaintiff’s claim. Nor is it necessary to pursue the principal in such bond, before having recourse to the sureties.® IV. SERVICE OF THE ATTACHMENT. Every such attachment shall be made returnable not less than two, nor more than four days from the date thereof, and shall be served by the constable to whom the same shall be directed, by attaching so much of the defendant’s property, not exempt by law from sale upon execution, as will be sufficient to pay the debt demanded, and by delivering to him a copy of the said attachment and an inventory of the property attached, if he can be found in the county, and if not so found, then by leaving a copy of the same at his place of residence, with some adult member of his family, or of the family where he shall reside; or if he be a non-resident of the county, and cannot be found, then by leaving a copy of said attachment and inventory with the person in whose possession the said property may be.® An attachment under this act, unlike an attachment in execution, can only be levied on personal chattels, which can be taken into the manual custody of the con- stable, and not upon debts due the defendant, or rights in action. Goods attached 1 2 Clark 79. see 8 W. 223 : 5 Gilm. 21 7 23 Penn, St. 189. ; eee se 14 Ibid. 413. 304. A 5 Act 12 July 1842 2 27. Purd. 1136, i Reg, me Pre coon pee recorerr 64 R.32. 4 W.21. 31 Penn. St. 522. But 1 32 Penn. St. 452, ATTACHMENTS. 197 are in the custody of the law, and cannot be distrained for rent. Nor can they be taken in execution by process issued by another justice ; a sale under such process would be void, and pass no title to the property? But where a tenant’s goods are attached and removed from the premises by the constable, the landlord is entitled to his rent out of the proceeds of sale.3 The constable shall state specifically in his return the manner in which he shall have served such attachment, and it shall be his duty to take the property attached into his possession, unless the defendant, or some other person for him, shall enter into a bond, with sufficient surety, in the penalty of double the amount of the ciaim, conditioned that in the event of the plaintiff recovering judgment against him, he will pay the debt and costs, at the expiration of the stay of execution given by law to freeholders; or that he will surrender up the property attached to any officer having an execution against him on any such attachment. In a suit by attachment prosecuted against two persons, as joint debtors, the justice has no right to proceed and render judgment, where the return of the con- stable only shows a service of the attachment on one of the defendants, but is silent as to service on the other, and where the defect is not cured by an appearance.> In all cases where an attachment is issued by a justice, it is the duty of the constable to attach the goods of the defendant, make an inventory of the property seized, and serve a copy of the attachment and inventory on the defendant personally, if he can be found in the county. If he cannot be found in the county, the copy must be left at his last place of residence; or if he have no place of residence in the county, with the person in whose possession the goods are found: and the return of the officer must “ state specifically whether such copy was or was not personally served upon the defendant.’’6 V. PROCEEDINGS BEFORE THE JUSTICE. If such attachment shall be returned personally served upon the defendant, at least two days before the return-day thereof, the alderman or justice shall, on the return-day, proceed to hear and determine the game, in the same manner as upon a summons returned personally served; but if the same shall not have been so served, the alderman or justice shall issue a summons against the defendant, returnable as summonses issued by justices of the peace are now by law returnable; and if the said summons shall be returned personally served, or by leaving a copy at the resi- dence of the defendant, or that the defendant, after diligent inquiry, cannot be found in the county, then, in either case, the alderman or justice of the peace shall proceed to hear and determine the cause, in the same manner as upon a summons personally served.’ ; Any defendant, against whom a judgment shall have been rendered in any case where the attachment or’ summons shall not have been personally served, may, within thirty days after the rendition of the same, apply to the alderman or justice rendering the same for a hearing of the matter, and if he, or some other person knowing the facts, shall, for him, make an affidavit, setting forth that he has a just defence to the whole or part of the plaintiff's demand, it shall be the duty of the alderman or justice to open the judgment, and give notice to the plaintiff of the time when he will hear the parties, which time shall not be less than four, nor more than eight days distant. On the said hearing, the justice shall proceed in the manner directed in the thirtieth section of this act.’ The privilege of a rehearing given by this sectien does not apply to actions originally commenced by summons? techs «te : A judgment obtained before any alderman or justice, in any suit commenced by attachment, when the defendant shall not be personally served with the attachment or summons, and shall not appear, shall be only presumptive evidence of indebt- edness, in any scire facias that may be brought thereon, and may be disproved by the defendant ; and no execution issued upon such judgment shall be levied upon any other property than such as was seized under the attachment, nor shall any defendant, in such case, be barred of any set-off which he may have against the 14W.& 8. 344. : ar ae 21 Gr. 172. a 36 W. & 8. 333 7 Act 12 July 1842 2 30, Purd. 1137. $ Set 12 July 18 .Purd.1137, See2Luz. & Ibid. 2 31. ‘ a es uiy 1842 3 29. Purd.1137, San Eh 198 ATTACHMENTS. plaintiff! The defendant in a suit commenced by attachment, under this act, is entitled to the benefit of the $300 exemption law, if the judgment be founded on a contract.’ ; This act shall not be construed to extend the jurisdiction of justices of the peace and aldermen to demands above one hundred dollars, and the same right which is given to the parties respectively, to appeal from the decision of an alderman or justice of the peace, by the act of the 20th day of March 1810, relating to the proceedings of justices of the peace, is hereby given to the parties respectively, in proceedings upon summons or attachments issued by aldermen or justices of the peace, under this act. And all and singular the provisions of the said act, and its several supplements, not hereby expressly repealed, and not inconsistent with the provisions of this act, are hereby declared to be in full force, and to apply to the provisions of this act, so far as the same relates to proceedings before aldermen or justices of the peace, and to the powers of the courts of record over the pro- ceedings of justices of the peace.? VI. OF THE LIEN OF THE ATTACHMENT. No attachment hereafter issued by any alderman or justice of the peace of this commonwealth, in pursuance of the twenty-seventh section of the act, entitled ‘an act to abolish imprisonment for debt and to punish fraudulent debtors,” approved the 12th day of July, 1842, shall remain and continue a lien on the property attached for a longer period than sixty days, from and after the time when the plaintiff might legally have had execution issued on said judgment; but the said property shall, after the expiration of the said time, be discharged from such attachment: Provided, That the said property shall remain liable o be seized and taken in execution as in other cases: And provided further, That whenever an appeal shall be entered and taken from the judgment of the justice, the lien on the property attached as aforesaid, shall remain for the period of sixty days after final judgment.‘ If the defendant, in case of an appeal, desire to relieve his goods from tne lien of the attachment, he must, in addition to the usual bail on appeal, also give a bond, under the 29th section of the act, for the forthcoming of the property attached, to answer any execution in the case, after final judgment; in default of which, the goods will still remain in the custody of the officer. VII. Form OF PLAINTIFF'S AFFIDAVIT. COUNTY OF PERRY, ss. On this twentieth day of May 1879, before me the subscriber, one of the justices of the peace in and for the county of Perry, personally appears A. B., and being duly sworn, saith, that C. D. is justly indebted to him in the sum of fifty dollars, for goods sold and delivered by this deponent to the said C. D., over and above all discounts which the said C. D. may have against him. And that the said C. D. is about to remove his personal Property, viz., his household furniture, from this county, with intent to defraud his ereditors. A.B Sworn and subscribed before me, the day and year aforesaid, J. R., Justice of the Peace. The terms of the affidavit may be varied according to the circumstances of the case, by stating that the defendant has assigued and disposed of, or. that he has secreted his property, with intent to defraud his creditors, or that he is about to do either of these acts, with the like fraudulent intent; but care must be taken not to state more than one cause for the attachment in the alternative, or the proceedings will be set aside on certiorari. If the defendant has been guilty of more than one of the acts mentioned, they should both be distinctly set forth in the conjunctive.® VIII. Form or pLAInTIFY’s Bonp. Know att Men by these presents, that we, A. B., BE. FB. a i , tha . B., EB. BF. and G. H., all of ee Perry, are held and firmly bound unto ©.'D., of the same county, a the ao ae undred dollars, lawful money of the United States of America, to be paid to the said O, 1 Act 12 daly 1842 2 32. Purd. 1138, 4 Act 22 March 1850. Purd. 1138, 23 Gr. 319. 5 8 Act 12 July 1842 2 34. Purd. 1138, SRE ee keene wae ATTACHMENTS. 199 D., his certain attorney, executors, administrators or assigns, to which payment well and truly to be made, we, and each of us, do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presenta. Sealed with our seals, dated the twentieth day of May, Anno Domini, one thousand eight hundred and seventy-nine. Whereas, the said A. B. hath this day made application to Jd om Esquire, one of the justices of the peace in and for the county of Perry, for an attach- ment against the said OC. D., to recover the sum of fifty dollars, alleged to be due and owing to the said A. B. by the said C. D. Now the condition of this obligation is such, that if the said A. B. shall fail to recover a judgment against the said C. D. of at least one-half the amount of this said claim, and the said A. B. shall pay to the said C. D., his executors, administrators or assigns, all damages that shall accrue for the wrongful taking of any property over and above an amount sufficient to satisfy the judgment and costs, in the said sult of attachment; or if the said A. B. shall fail in bis action, and shall pay to the said C. D. his legal costs and all damages which he may sustain by reason of said oe then this obligation to be void, otherwise to be and remain in full force and virtue. Sealed and delivered in the presence of A.B. [sBau. J.R., Justice of the Peace. ELF. [sgau. G. H. [spat IX. Form oF ATTACHMENT. PERRY COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of E—— township, or to the next constable of the said county most convenient to the defendant, greeting: WE commanp you that you attach C. D., by all and singular his goods and chattels, in whose hands or possession soever the same may be found within the said county of Perry, so that he be and appear on the twenty-fourth day of May, a. . 1879, at ten o'clock in the forenoon, before J. R., one of our justices of the peace in and for the said county, to answer.A. B. ina plea of debt or demand, arising from contract, either express or implied, wherein the said plaintiff claims the sum of fifty dollars. Witness our said justice, who hath hereunto subscribed his name, and affixed his seal, the twentieth day of May, in the year of our Lord one thousand eight hundred and seventy-nine. J. R., Justice of the Peace. [szat.] The attachment must be served by the constable, by taking actual possession of the defendant’s goods, unless a forthcoming bond be given, and by delivering to the defendant, or leaving at his residence with an adult member of his family, or if he be a non-resident and cannot be found, with the person in whose possession the pro- perty may be found, a copy of the attachment, and also an inventory of the goods attached ; all which must be specifically stated in his return, or the proceedings will be liable to reversal on certiorari. Return of the Constable.—By virtue of the within attachment, on the 20th day of May 1879, I attached one sofa, one bureau, and twelve mahogany chairs, of the defendant, to whom I delivered a true copy of the said attachment, and an inventory of the goods attached. I also return, that the defendant has given bond (hereunto annexed) for the forthcoming of the said goods to answer any execution in this suit. S. S., Constable. X. FoRTHCOMING BOND. Know aut Men by these presents, that we, C. D. and Y. Z., are held and firmly bound unto A. B. in the sum of one hundred dollars, lawful money of the United States of America, to be paid to the said A. B., his certain attorney, executors, administrators or assigns ; to which payment well and truly to be made, we, and each of us, do bind our- selves, and each of us, our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals, dated the 20th day of May 1879. Whereas, 8.58., constable of E—— township, in the county of Perry, by virtue of a writ of attachment issued by J. R., Esquire, one of the justices of the peace in and for the said county. at the suit of the said A. B. against the said C. D., for the sum of fifty dollars claimed by the said A. B., has attached one sofa, one bureau, and twelve mahogany chairs, of the said C.D. Now the condition of this obligation is such, that if in the event of the said A. B. recovering judgment against the said C. D., in the said attachment suit, he, the said C. Pe shall pay the amount of the said judgment with interest and costs, at the expiration af the stay of execution given by law to freeholders, or if he shall surrender up the sai property attached, to any officer having an execution against him on such attachment, then this obligation to be void, or else to be and remain in full force and virtue. ; Sealed and delivered in the presence of Cc. D. [pear S. S., Constable. Y.Z. [span 200 ATTACHMENTS. One surety is sufficient to this bond. If the attachment be not served personally on the defendant, the magistrate is required to issue a summons against him, in the usual form; and if the summons also be returned without having been personally served, although the justice may proceed to give judgment, and issue execution against the goods attached ; yet, if the defendant, in such case, apply for a rehear- ing, within thirty days, and an affidavit be made that he has a just defence to the whole or part of the claim, it is the duty of the justice to open the judgment, and give notice to the plaintiff of the time when he will hear the parties, not less than four, nor more than eight days distant. XI. AFFIDAVIT TO OPEN JUDGMENT. A. B. vs. > Before Justice J. R. Cc. at C. D., the above-named defendant, being duly sworn, saith that he has a just defence to the whole of the plaintiff’s claim in this case. C. D. Sworn and subscribed before me, this 10th day of June, a. p. 1879. J. R., Justice of the Peace. XII. NovicE oF REHEARING. A.B. vs. } Before Justice J. R. C. D. C. D., the above-named defendant, having appeared before me, this tenth day of J une, 4. D. 1879, and made oath that he has a just defence to the whole of the plaintiff’s claim. I have opened the judgment rendered against him, according to the provisions of the act of assembly in such case made and provided, and have appointed the 15th day of June 1879, at ten o'clock in the forenvon, to hear the said parties, at which time you are hereby required to appear before me, and make proof of your claim against the said defendant. Witness my hand and seal, this 10th day of June, a. p. 1879. J. R., Justice of the Peace. [szat.] To A. B., plaintiff above named. XIII. Form or pocxer-entry. ADAM BROWN CtviL surr.—May 24th, 1893, plaintiff appears and makes vs, affidavit that the defendant is justly indebted to him in the sum of $50, for goods sold and delivered, over and above all dis- counts, &c., and that the defendant is about to remove his per- sonal property from the county, with intent to defraud his CHARLES DAVIS. aie COSTS: creditors. Same day, bond filed and attachment issued, return- pies. go, able the 28th inst., at 10 a.m. §. S., constable, returned on Attachment : 35/oath, “Attached defendant’s good: d d i Attachment : i goods, and served copy and in- Ret and oath of const. | © | 22 | ventory on J. K., the person in whose possession the same were i es - 3B found, defendant being a non-resident and not found within the Oat tigen Magica. 10 | county: May 28th, 1893, summons issued, returnable June 2, Me ae ee go |2t104.m. 8.8. constable, returned on oath, “Defendant, after a diligent inquiry, cannot be found in the county.” June 2, plain- Opening judgment : * 39/ tiff appears and claims $50 for goods sold and delivered to de- Supersedeas 7 5B fendant. Defendant does not appear. T. 8., sworn for plaintiff. Rote eB After hearing, judgment publicly for plaintiff, for $50 and costs. areca iidematt 2 #20 Same day, execution issued, 8. 8., constable. June 14th, 1893, Justin rug bail (Lonth) 2 19 defendant appears and makes oath that he has a just defence to Receiving and paying over. -42,| the whole of plaintiffs claim. J. udgment opened and execution Batisfaction ““. +: 10/ superseded, and notice issued to plaintiff to appear on the 15th ieee anak wl Dlnintlit personally.” Ser nasaretuaped on oath, Served on Rerving attachment =, H nally. , 1593, parties appear. T.S, Berving summons. | | gy {SWOrn for plaintiff’ R.M,, sworn for defendant, After hear- fleage + + 7 10/ing, judgment publicly for plaintiff, for $50 and ae é and costs. Same Mileage ois > £0) day, defendant enters bail for stay of execution. Bail justified. Micoge °° =: + ~~ + 80) T am held in $100, conditioned for the payment of this judg- ‘__| ment, in the event that the defendant fail to pay the same at the $1.15 | expiration of six months from the rendition thereof. Signed . EB. Dec. 10th, 1893, money paid into we oF Se adiiad i Received satisfaction. (Signed) Apam Brown. [ 201 ] Attachment in Execution, VII. Interrogatories to garnishee. I. Acts regulating attachments in execution. VIII. Rule on garnishee to answer. II. What may be attached in execution. III. Proceedings on attachments in execution. IX. Answers of garnishee. IV. Attachment to levy debts. X. Execution against garnishee. V. Affidavit to levy stock. XI. Docket-entry. VI. Recognisance. I. Act or 16 June 1836. Purd. 834. Sxcr. 32. The proceedings to levy an execution upon stock, debts and deposits of money belonging or due to the defendant, shall be as follows, to wit : In the case of stock, if it shall be held in another name! than that of the real owner thereof, the plaintiff shall file in the office of the prothonotary of the court [or justice], an affidavit, stating that he verily believes such stock to be really the property of the defendant, and shall enter into a recognisance with two sufficient sureties, conditioned for the payment of such damages, as the court [or justice] may adjudge to the party to whom such stock shall really belong, in case such stock should not be the property of the defendant.” Szcr. 33 Upon the filing of such an affidavit and recognisance, it shall be lawful for the prothonotary [or justice] to issue process, in the nature of an attachment, against such stock, with a clause of summons to the person in whose name the same may be held, in the nature of a writ of scire facias against garnishees in a foreign attachment, and thereupon the plaintiff may proceed to judgment, execution and sale of the said stock, in the manner allowed in cases of foreign attachment against personal estate. Szct. 34. The like proceedings may be had against stock owned by a defendant, and held in his own name, without the affidavit and recognisance aforesaid ; and if any person shall claim to be the owner of such stock, he may, upon filing an affidavit that the stock is really his property, and entering into a recognisance with two sufficient sureties, conditioned for the payment of such damages as the court [or justice] may adjudge to the plaintiff, if such stock should really belong to the defendant ; the court [or justice] shall admit him to become a party upon the record, and take defence, in like manner as if he 1 Where the defendant holds stock in his own name the proceedings may be under the act 29 March 1819 3 2 (Purd. 748), which provides that such stock shall be liable to be taken in execution and sold, in the same manner as other goods and chattels, subject to any debt due by the defendant to the company. 16 Penn. St. 295. Or the plain- tiff may proceed by attachment, under this act. 50 Ibid. 314. 4 Phila. 29. 2 The third section of the act of 29 March 1819, which has been partially supplied by the acts in the text, but which may be useful in constru- ing the laws now in force, provided as follows: “ Whereas, it sometimes happens that the stock of such bodies corporate is held in another name or names than those of the real owner or owners thereof, and it is just that stock so held should ba made liable for the debt of the real owner cr owners; therefore,——Whenever any plaintiff or creditor shall file an affidavit with the prothono- tary of the court, alderman or magistrate, in which or before whom such plaintiff or creditor has instituted, or is about to institute, a suit, stating that he verily believes such stock to be really and bond fide the property of the debtor against whom such suit has been, or is about to be brought, and also shall enter into a recognisance with two sufficient sureties, conditioned for the payment of such damages, as such court, alderman or magistrate may adjudge to the party or parties to whom such stock shall really belong, in case was made garnishee in the writ. such stock should not be the property of such debtor; it shall and may be lawful for such court, alderman or magistrate to cause to be issued process in the nature of a foreign attachment against such stock, and to summon as garuishee the person or persons in whose name or names the same shall be held, and proceed against the said stock and such garnishee, in all respects in the same manner as by the laws of this common- wealth proceedings now are or hereafter may be prescribed in cases of foreign attachments against personal estate; and upon judgment being had in favor of the plaintiff in any such suit, execu- tion may issue immediately for the sale of such stock, in the same manner that goods and chattels are sold on writs of fiert facias: Provided, that in case of a judgment before a justice of the peace or alderman, where the amount in contro- versy shall exceed five dollars and thirty-three cents, an appeal shall be allowed to the court of common pleas, agreeably to the same rules and regulations now or hereafter to be prescribed for granting appeals in other cases cognisable before a justice of the peace.” Purd. 748. It will be perceived that this act enables a creditor to attach stock held in the name of another person than the real owner, not only where he has obtained a judgment, but also by original process of attach- ment, where he is about to institute a suit against the defendant, on making the affidavit, and giv- ing the security therein provided. 202 ATTACHMENT IN EXECUTION. Szct. 35. In the case of a debt due to the defendant, or of a deposit of money made by him, or of goods or chattels pawned, pledged or demised as aforesaid, the same may be attached and levied in satisfaction of the judgment in the manner allowed in the case of a foreign attachment, but in such case, a clause in the nature of a scire facias against a garnishee in a foreign attachment, shall be inserted in such writ of attachment, requiring such debtor, depositary, bailee, pawnee, or person holding the demise as aforesaid, to appear at the next term of the court, or at such other time as the court [or justice] from which such process may issue shall appoint, and show cause why such judgment shall not be levied of the effects of the defendant in his hands. Szcr. 36. It shall be the duty of the officer charged with the execution of such writ, to serve a copy thereof upon the defendant in such judgment.’ and upon every person and corporation within his proper county named in the said writ of attachment, in the manner provided for the service of a writ of summons in a personal action. Sect. 37. From and after the service of such writ, all stock belonging to the defendant in the corporation upon which service shall be so made, and all debts and deposits of money, and all other effects belonging or due to defendant by the person or corporation upon which service shall be made, shall remain attached in the hands of such corporation or person, in the manner heretofore practised and allowed in the case of foreign attachment. Szor. 38. If judgment shall be given for the plaintiff in such attachment, it shall be lawful for him to have execution thereof as follows, to wit : If the property attached be stock in a corporation as aforesaid, the execution shall be by a writ of jieri facias [the common execution issued by justices], against the original defendant, by virtue of which such stock, or so much thereof as shall be necessary to satisfy the judgment and costs, may be sold by the sheriff [or constable], as in other cases. If the property attached be a deposit in money or a debt due as aforesaid, execution shall be had in the manner allowed in the case of effects in the hands of a garnishee in a foreign attachment? Act 13 Aprit 1848. Purd. 836. Sect. 10. All legacies given [and lands devised] to any person or persons, and any interest which any person or persons may have in [real or] personal estate of-any decedent, by will or otherwise, which are subject to foreign attachment by the act of 27th of July 1842, entitled “an act to enable creditors to attach legacies and property in the hands of executors and adminisirators, and for other purposes,”® shall be subject to be attached and levied upon, in satisfaction of any judgment, in the same manner as debts due are made subject to execution by the 32d section of the act of 16th June 1836, entitled “ an act relating to executions 3? Provided, That the plaintiff in said judgment shall tender to the garnishee or garnishees, if he or they be executors or administrators, a bond with sufficient security, as is provided by the second section of the said act of 27th of July 1842 :* and the 1 By the subsequent act of 20 March 1845 (Purd. 833), service on the defendant is dispensed with, where he resides out of the county, or ser- Vice cannot be effected on him by the officer within his bailiwick. ? The 59th and 60th sections of the act of 13 June 1836 (Purd. 934), provide that in case of foreign attachment, “ after a verdict for the plain- tiff in any scire facius, as aforesaid, it shall be lawful for him to have execution of his judgment in the attachment, to be levied of the goods and the garnishee shall neglect or refuse, upon the lawful demand of the proper officers, to produce and deliver the goods and effects of the defendant, as aforesaid, or to pay the debt or duty attached, if the same shall be due and payable.” _ § Purd. 931. This act contains a proviso, that its provisions “shall not extend to legacies and distributive shares of married women,” which are likewise protected by the act of 11 April 1848. Purd. 1258. 7 4 Purd. 931. effects so found in the hands or possession of the garnishee, or of so much of them as shall be suf- ficient to satisfy his demand, with legal costs of suit and charges, as aforesaid. The plaintiff may also at the same time have execution against the garnishee upon the judgment obtained against him on a scire facias, as in the caso of a judgment against him for his Proper debt, to be executed if This act provides that a bond shall be given, with sufficient security, to be approved by the court, in double the amount to be received from such garnishee, with like condi- tions as are presoribed in the 41st section of the act of 24 February 1834 (Purd. 618.), to wit: that if any debt or demand shall afterwards be reco- vered against the estate of the decedent, or other- wise be duly made to appear, he will »efund the ATTACHMENT IN EXECUTION. 203 same rights in all respects which the debtor may have, and no greater whatever, are hereby placed within the power of the attaching-creditor, Aot 20 Maron 1845. Purd. 838. Szor. 4. So much of the act of assembly passed 16th day of June 1836, entitled “an act relating’ to executions,” as provides for the levy and recovery of stock, deposits, and debts due to defendants by process of attachment and scire fucias, is hereby extended to all cases of attachments to be issued upon judgments against corporations (other than municipal corporations),? and from and after the passage of this act, all such process which hereafter may be issued, may be proceeded unto final judgment and execution, in the same manner and under the same rules and regulations as are directed against corporations by the provisions of the act of 16th June 1836, relating to executions ;? and so much of the 36th section of the act of 16th June 1836, as requires service of the attachment on any defendant, be and the same is hereby repealed, except where the defendant is a resident of the county in which the attachment issued. Aor 15 Aprin 1845. Purd. 1147. Sect. 1. The jurisdiction of aldermen and justices of the peace is hereby ex- tended to the issuing, service, trial, judgment and execution of all process required by the 32d, 33d, 34th, 35th, 36th, 37th and 38th sections of the act relating to executions, passed the 16th day of June 1836. Secr. 2. Any alderman or justice of the peace, before whom any judgment remains unsatisfied, and an execution has been returned, “ no goods,” may, on the application of the plaintiff, and his compliance with the requisitions of the act to which this is a supplement, issue an attachment, in the nature of an execution, as therein provided, to levy upon stock, debts and deposits of money belonging or due to the defendant, in satisfaction of such judgment. Sxot. 3. The said writ of attachment may be issued, returnable not less than four, nor more than eight days, and shall be served in the manner pointed out for the service of a summons, upon the debtor, depositary, bailee, pawnee, or other person having property of the defendant in his hands, made liable to attachment by the act to which this is a supplement ; and on or before the return-day of said writ, the plaintiff may file with the magistrate interrogatories in writing, addressed to the person summoned as garnishee, in regard to the property and effects of the defendant alleged to be in his hands at the time of the service of said writ; a copy of the same, with a rule to answer, shall be served upon said garnishee personally, to answer, under oath or affirmation, all such interrogatories as the magistrate shall deem proper and pertinent, within eight days after the same shall be served. Szor. 4. If such garnishee shall neglect or refuse to answer said interrogatories within eight days (unless for cause shown, the time has been extended), he shall be adjudged to have in his possession property of the defendant equal in value to the demand of the said plaintiff; and judgment may be rendered by default against said garnishee for the amount of the same, with costs. Sxcr. 5. If the said garnishee, in his answers, admit that there is in his posses- sion or control, property of the defendant liable under said act to attachment, then said magistrate may enter judgment specially, to be levied out of the effects in the hands of the garnishee, or so much of the same as may be necessary to pay the debt and costs: Provided, however, 'That the wages of any laborer, or the salary of any ratable part of such debt or demand, and of the tosts and charges attending the recovery of fhe same,” 1 See act 10 April 1849, infra. 2 See 3 Pitts. i. J. 92. 8 The 72d section of this act (Purd. 431) directs that “all executions which shall be issued, from any court of record, against any corporation not being a county, township or other public corporate body, shall command the sheriff or other officer, to Jevy the sum recovered, together with the costs of suit, of the goods and chattels, lands and tene- ments of such corporation.” It is confined by its terms to executions issued from a court of record; an execution issued by a justice in an attachment in execution upon a judgment against a corpora- tion should be in the usual form, and command the constable to levy the sum recovered of the goods and chattels, moneys, rights and credits of the corporation attached, in the hands of the garnishee, &c. Under the act of 1845, the funds of an insolvent canal company may be attached in the hands of their banker; and it is no defence that the banker is also a creditor of the corporation. 36 Penn. St. 214. 204 ATTACHMENT IN EXECUTION. person in public or private employment, shall not be liable to attachment in the hands of the employer.’ ; Sxor. 6. The plaintiff, the defendant, or the garnishee in the attachment, may appeal from the judgment of the alderman or justice of the peace, to the next term of the court of common pleas, on complying with the provisions of the laws regulating appeals in other cases: Provided, That the fees allowed to justices and aldermen, and constables, under this act shall be the same as allowed by the general fee-bill for similar services in other cases. Act 10 Aprin 1849. Purd. 837. Szcr. 11. The 10th section of the act of 13th April, Anno Domini 1843, entitled “an act to convey certain real estate, and for other purposes” (providing that all legacies given, and lands devised to any person or persons, and any interest which any person or persons may have in the real or personal estate of any decedent by will or otherwise, which are subject to foreign attachment by the act of the 27th of July, Anno Domini 1842, entitled ‘an act to enable creditors to attach legacies and property in the hands of executors and administrators, and for other purposes,’ shall be subject to be attached and levied upon in satisfaction of any judgment, in the same manner as debts due are made subject to execution by the 22d section of the act of 16th June, Anno Domini, 1836, entitled ‘an act relative to execu- tions’) shall be deemed to authorize the issuing and service of process in the nature of attachment, at any time after the interest which any person or persons may have in the real or personal estate of any decedent, shall have accrued by reason of the death of such decedent: Provided, That a sale of the aforesaid interest of the de- fendant in the proceeding by attachment, authorized by the aforesaid 10th section of [the act of ] 13th of April, Anno Domini 1843, shall not be compelled by any process of execution, until a year shall have elapsed from the time when the interest aforesaid vested in the defendant, unless the executors or administrators of the decedent shall have sooner filed their account. Inall cases when executors, admin- istrators or trustees of the estates of decedents shall have been made garnishees in the process in the nature of attachment authorized by the 10th section of the act of 13th of April, Anno Domini 1843, entitled ‘an act to convey certain real estate, and for other purposes,” they shall be entitled to their costs, as well as the expenses necessarily incurred by them in attending to the proceeding in which they may have been garnishees. Il. WHAT MAY BE ATTACHED IN EXECUTION. Whenever a party has a right of action, his creditors may attach it, unless it be for wages.” Debts in suit and unsatisfied judgments may be attached 3° although the judgment was recovered in another state. So may debts due in presenti, but payable in futuro ;> a debt due to a non-resident, if the garnishee be within reach of our process ;° a debt payable in city bonds ;? claims payable in specific articles ;° a note deposited in pawn ;? an over-due note, in the hands of the maker 3° anda note not matured." So also, the proceeds of a fund in the hands of trustees, may be attached ; the proceeds of property in the hands of an assignee, under a void assignment ;" a loss incurred on a policy of insurance ;* and the moiety of the cost of a party-wall.¥ Money in the hands of an attorney-at law, may be attached for the debt of his client ;* and money in the hands of the debtor’s banker.” But money levied by a 1 A waiver of tho benefit of this proviso, in a will enjoin the holder from negotiating it. Ibid. promissory note, is void, and confers no jurisdic. 1 7. & H. Pr. 21183. But the attachment will tion on a justice. 49 Penn. St. 387, not avail as against a holder to whom it was in- 2 36 Penn. St. 28. Seo 103 Ibid. 546. dorsed, after the attach i ice, 29 2 Dall. 277, 2M.130. 1 Penn, St. 380. Montes, SI * 81 Penn. St. 114, 12 36 Penn. St. 128. 2 Dall. 212. 17 Ponn. St. 440, 18 Ibid. 388. 18 5 W. & $. 103, 5 Penn. St. 39. 13 Tbid. 307. & 80 Peon. St. 520, 34 Ibid. 152 or id. 229. “TW. & 8.76, 8Tbid. 350. 2 Clark 70. 45 a 1W.N, C. 298, 2 Ibid. 158. But not a due- Penn. St. 129. 4 Phila, 286. ; = ; eal ee a Sr 96 Penn, St. 150. 16 9 Penn. St. 501 enn. St. 39. 16 id. ¢ 3 Ibi 1917. & H. Pr. 91183, W ew a eee 3118 Penn. St. 388. And in such case, the court ATTACHMENT IN EXECUTION. 205 sheriff or constable upon an execution cannot be attached ;! nor money in the hands of a prothonotary ;? or of a justice of the peace ;* or of an assignee in bank- ruptey ;* nor the money of a convict in the hands of the warden of the peniten- tiary ;> nor money in the hands of a debtor of a decedent ;* nor the surplus in the hands of a constable, after a sale under a distress for rent.’ But where the defend. ant in an execution requested the sheriff, in making sale of his personal property to sell the exempted articles for his (the defendant’s) benefit, which was done: the cvurt held, that the proceeds were liable to attachment in the hands of the sheriff.® So also, if the defendant himself sell the property exempt from execution the money is liable to attachment in the hands of the purchaser; and so are the damages recovered by him in an action of trespass for taking it in execution, for such recovery transfers the right of property and has the effect of a sale? But money awarded to a defendant, out of the proceeds of his real estate, under the exemption law, and paid over to his attorney by the sheriff, is not liable to be attached in the hands of his attorney.” The fees due to a juror cannot be attached ;" or those due to any public officer.” Nor the salary of a public officer; nor money held by the treasurer of a board of school directors ;“ or by a supervisor of a state canal and railroad ;* nor the com- missions of an executor, in his own hands or those of his co-executor.6 Nor cana bequest to a wife be attached for the debt of her husband ;" or damages recovered in the joint names of husband and wife, for an injury to the person of the wife, during coverture.* Nor can a municipal corporation be made garnishee ;” or a foreign corporation ; unless authorized to transact business in this state. But although debts due by the federal, state and municipal governments cannet be attached in their hands, yet the bonds of a municipal corporation, belonging to a debtor, may be attached in the hands of a third person and sold, in the same manner as stocks, in discharge of the execution.” A certificate of stock in a bank in another state, sent to an individual here, with authority to sell it, is not subject to attachment, under the laws of this state.? So, the capital stock of a bank, owned by itself, and in its own possession, whether acquired by purchase or otherwise, is not subject to an attachment in execution, for a debt due by the bank.* Neither can an attachment against a railroad company be levied on money in the hands of the ticket-agents ; they are not deemed third parties with respect to such moneys.” An attachment may issue against a fraudulent grantee of chattels ;%° but not against one who has but a lien upon the property.”"s An attaching-creditor stands in the shoes of the debtor; and any equities that could be set up against the latter, are equally available against the former.” Thus, where a note has been assigned and transferred bond fide in payment of a debt, before the service of an attachment, the assignee is entitled to the money, and not the attaching-creditor.® And after a bond jide assignment of a judgment, it is not liable to be attached for the debt of the assignor. A draft upon a particular fund in the hands of an attorney for collection, is an equitable assignment of it; and although not accepted by the attorney, yet it is not afterwards subject to be 12 W.& 8.400. 13 Penn. St. 307. 1 Clark 1% 1 Clark 260. And see 4 How. 20. 257. Ibid. 411. 1 Leg. Gaz. 53. 16 47 Penn. St. 94. ; : 2-1 Dall. 354. 172 W.90. 1 Whart.179. 81 Pitts. L. J. 23. 34 W. & S.342. Or money in the hands of 8 3 Clark 60. county commissioners. 40 Leg. Int. 272. 19 29 Penn. St.173. 17. & H. Pr. 1187, 1 41W.N. C. 230. Pitts. 1, 1 Kulp 180. Ibid. 216. See 3 W.N. 0, 5 16 Ibid. 147. 274, 6 3 Clark 511. 2Dall.73. Ibid. 97. 8 Phila. 27. & H. Pr. 3 2258. 269. 21 96 Penn. St. 485. 7 Comfort v. Taylor, Com. Pleas, Phila., March 22 41 Ibid. 229. 1848. 23 13 Ibid. 223. 8 2 Clark 452. 24 10 W. 230. 9 23 Penn. St. 489. 2% 35 Penn. St.22. And see 36 Ibid. 214. 64 10 31 Ibid. 329. Ibid. 236. ll 2 Clark 438, % 2 Gr. 319. 12 48 Penn. St. 570. Otherwise, of asuccessful % 3 Phila. 219. And see 9 Ww. N.C. 503. plaintiff’s bill of costs for witness’ fees and mileage. °8 34 Penn. St. 299. 18 Ibid. 96. 37 Ibid. 491, 102 Penn. St. 220. See 103 Ibid. 115. 99 Ibid. 604. 182M. 330. § ts 15 April 1845 2 5 and 29 1 Ibid. 263. ; 8 May 1876, Purd. 2077. Be é 80 Bavington v. Alcock, Dist. Court, Phila., 14 3 Penn. St. 368, Dec., 1848, 206 ATTACHMENT IN EXECUTION. attached for the debt of the drawer.’ But where a check on a bank was not pre- sented until several days after its date, and in the mean time, an attachment in execution was laid upon the funds of’ the drawer, in the bank, it was held, that the latter was entitled to preference, and that the holder of the check must be post- oned.? So, where the defendants drew bills on their factor for a larger amount than the balance in his hands, and the latter declined to accept, unless he were placed in funds, which was not done by the defendants, and an attachment was subsequently levied on the balance in the hands of the factor; it was held, that the attaching-creditor was entitled to the fund to the exclusion of the holder of the bills? If the garnishee receive money of the debtor, after the service of the writ, it is bound by the attachment.* The attachment operates as a statutory assignment of the fund. : A partnership debt may be attached in the hands of the garnishee, for the private debt of one of the partners ; and the garnishee will be compelled to pay over to the separate creditor the proportion of the indebted partner.6 Buta balance due on an unsettled partnership account cannot be attached.” An attachment in execu- tion cannot be issued on a judgment against a municipal corporation.® Under the acts of 1843 and 1849, the interest of any legatee or devisee in the estate of a decedent, may be attached in the hands of the executors or adminis- trators ;° or in the hands of a testamentary trustee ; or of a purchaser of the real estate, under a sale made by the administrator, he having filed an accoant prior to the sale, showing a balance in favor of the estate? But such attachment does not bind the defendant’s interest in the real estate descended. Such attachment may be laid on the fund in whose hands or possession soever the same may be; as the executor’s agent, who received the defendant’s share of the proceeds of real estate! The attachment of a legacy in the hands of an executor, transfers the right to receive it to the attaching-creditor, subject to the rights of the garnishee; if the legatee be indebted to the estate of the testator to an amount exceeding the legacy given to him, the executor has the same right to set off such indebtedness against the attaching-creditor, as he would have had against the legatee.* But the admin- istrator cannot set off a judgment held in his own right against the legatee.% The act of 15th April 1845 provides, that the wages of any laborer, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer. This is a general law applicable to all judgments whether rendered in the common pleas or in a justice’s court.” And the exemption cannot be waived by the contract between the parties.® Wages, however, are made attach- able for claims for board, not exceeding four weeks, by act 8th May 1876: and by the same statute, jurisdiction is conferred upon justices of the peace to issue such attachments.” The act of 1845 is intended to protect and secure to the laborer what is earned by his own hands, not the contracts of those who make profit out of the labor of others.” But the wages of a miner, who, by his own labor, mines coal at a certain price per ton, and employs a common laborer to assist him at so much per day, are not attachable.? And where, by agreement, the wages of a laborer are to be credited as part payment on a parol contract for the sale of land, which is sub- sequently repudiated by the vendor, they still remain the wages of labor, and as such are not liable to be attached.” But if a master carpenter is to receive from his employer, for the labor of his hands, more than the wages paid by him to them, such profits are attachable in the hands of the employer. The laws of the United States provide, that ‘no sum of money due, or to become 8W.&S. 9, 2 M. 327. I Clark 367, 8 W. 420. 20 Penn. St, 412 ; 15 38 Ibid. 93. 8 4 * 103 Penn. St. 115, 7 8 16 Purd. 2077. A duo-bill given for wages can- not be attached, though assigned to a third person, 1 Kulp 282. But the act of 1883 (Purd.2074) has repealed this exemption as to judgments for $50 or less, obtained also for wages. 4 Kulp 56. 17 29 Penn. St. 264, 33 Ibid. 241. 18 49 Ibid. 387. 2 W.N.C, 79, 19 Purd 2077, This act does not deprive the defendant of the benefit of th i * 101 Penn. St. 402. Seger 20 5 Penn. St. 117, 50 Ibid. 216. 2 Dall. 277, 2 Y. 190. 65 Penn. St. 126, Purd. 838. 4 Ponn. St. 490, 3 Pitts, L. J. 92 97 W. & 8.376. 15 Penn. St. 103, id. 93. 43 Ibid. 89. eee 10 36 Penn. St. 28. 46 Ibid, 485. 111 Ibid. 361. 15 Ibid. 103, 2 94 Ibid. 186. 5 Whart, 125, 18 18 Ibid. 414. 14 35 Penn, St. 333. 21 33 Ibid. 241, 22 36 Ibid. 342. 33 49 Ibid. 147. Sa seer iO ATTACHMENT IN EXECUTION. 207 due, to any pensioner, shall be liable to attachment, levy or seizure, by or under any legal or equitable process whatever, whether the same remain with the pension office, or any officer or agent thereof, or in the course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner! So long as pension money remains in the hands of the pensioner, for his own use, it cannot be reached by his creditors, by any process whatever. Nor can it be attached in the hands of a bank in which he has deposited it® But if a pension draft is placed in a bank for collection and the bank credits it as cash, it is no longer in transitu.’ And property purchased with pension money is clearly liable to the claims of creditors. III. PRocEEDINGS ON ATTACHMENT IN EXECUTION. An attachment in execution may issue on a judgment recovered more than five years before, without a scire facias, if a fiert facias has been issued within the five years ;° in the attachment, the defendant has a day in court, in which he can take any defence he could have made on a secire facias.?' It is rightly instituted in the county where the garnishee resides.® In a writ of attachment in execution, it is not necessary to state the kind or nature of the property to be attached ; it is sufficient, if the writ command the sheriff (or constable) to attach “the goods and chattels, rights, credits and moneys,” of the defendant, in the hands of the garnishee*® The debtor himself must be made the garnishee, not merely the person who holds the evidence of the debt ; nor one who has merely a lien on the property." Several garnishees may be joined in one writ.” And a fraudulent grantee of chattels may be made garnishee.” An attachment, under the act of 1836, is process to enforce the judgment, and it is, in substance, if not in form, an execution: it differs from a fiert factas, essen- tially, only in this, that it reaches effects from which the debt could not otherwise be levied. It cannot issue on an award of arbitrators, till the twenty days allowed for an appeal have expired.* The defendant may claim the benefit of the exemption law as against such writ. It is not exclusively a proceeding in rem, but is also a proceeding personally against the garnishee.* The garnishee may accept service, where a manual seizure by the sheriff is not required.” : The answers of the garnishee need not be sworn to before the justice who issued the attachment; they may be sworn to before any other magistrate."* A garnishee in an attachment in execution is not necessarily obliged to annex to his answers copies of the correspondence between him and the defendant ; and, in general, the court will relieve him from so doing.® Irrelevant interrogatories need not be answered.” Garnishees admitted in their answers, that they held property of the defendant more than sufficient to pay a debt which defendant owed them, if certain commercial adventures turned out well: held, that plaintiff was not entitled to judgment.” The plaintiff is only required, on the trial, to prove such a case, as would have entitled the defendant to recover, in a suit by him against the garnishee.” ; A garnishee may set off a cross-demand against the defendant in the execution ; but the set-off must have been acquired before the service of the attachment, and the burden of proving that his right of set-off was acquired before the attachment was laid, rests on the garnishee; there is no presumption existing In the case. Where a debt is attached after it has been assigned, the garnishees may give notice 11R.8. 3 4749. 215 Phila. 646. 2 Chest. Co. R. 493. And therefore, a voluntary gift of it to his wife can- not be deemed a fraudulent transfer. 15 Phila. 646, 316 W.N. C. 239; contra, 3 L. Law Rev. 65. 414W.N. C, 513, 5 2 Chest. Co. R. 492. 6 14 W.N. C. 550. 7 7 4 Penn. St. 232. 5 Ibid.115. 7 W. &S. 44. 87 W. & 8. 432. 96 Whart. 181. The writ may be amended. 6 W.N. C. 551. 0 25 Penn. St. 362. 1 3 Phila, 219. 12 3 Phila. 35. 18 2 Gr. 319. 14 13 Penn. St. 394. 15 38 Ibid. 190. 44 Ibid. 206. 52 Ibid. 423. 3 @r. 319. 9 Phila. 510. 14 Pitts. L. J. 23. 16 29 Penn. St. 396. Ww 13 W.N. C. 78. . 18 Minhinnick v. Long, Com. Pleas, Phila., Deo. 1847. 19 2 Clark 306. 20 41 Leg. Int. 14. 21 2 Clark 325. is 22 40 Penn. St. 248. 5 2 13 Ibid. 552. See 34 Ibid. 299. 36 Ibid. 214. 37 Ibid. 491. 38 Ibid. 217. ' 208 ATTACHMENT IN EXECUTION. of the attachment to the assignee, who must then come in and ‘defend for his interest, or be for ever barred." Where a judgment debt has been aiashed, the court will stay proceedings until the determination of the attachment suit. ; If the garnishee in an attachment in execution make default, by not appearing after due service of the writ, judgment ought not to be given against him, to be levied of his goods and chattels, &c. The judgment ought to be, that the plaintiff have execution of so much of the debts, &c., due by the garnishee to the defendant, and attached in his hands, as may satisfy the judgment of the plaintiff, with interest and costs; and if the garnishee refuse or neglect, on demand by the sheriff [or constable], to pay the same, then the same to be levied of his, the garnishee’s goods and chattels, according to law, as in the case of a judgment against him for his own proper debt ; and that the garnishee be thereupon discharged, as against the de- fendant, of the sum so attached and levied, &.° A judgment for the garnishee in an attachment in execution, on Ais answer, is improper; the court [or justice] can do no more than refuse judgment for the plaintiff. The garnishee is not liable to the plaintiff for costs, beyond the amount attached in his hands, unless it be proved that there are effects of the defendant in his hands to a larger amount than he admits in his-answer ; but if more is proved, then the costs must be paid by the garnishee.© By the provisions of the act of 1705, relating to foreign attachments, the garnishee was to be allowed, out of the effects attached, a reasonable satisfaction for his attendance, which was held to extend to and include not only the expenses of his attendance, but also a reasonable sum for fees paid to counsel, for preparing his answers, and attending to his interests in the suit.” But this section of the act of 1705 having been supplied by the act of 16th June 1836,* which contains no such provision, this allowance is no longer to be nade,® except where executors, administrators or trustees of the estates of decedents, are made garnishees, who, by act of 10th April 1849, are to be allowed their costs and expenses necessarily incurred by them in attending to the proceeding in which they may have been garnishees." A garnishee in an attachment in execution, who, to interrogatories of the plaintiff, files his answers, is entitled to recover his costs, where the plaintiff, not content with his answers, suffers a nonsuit, after compelling him to plead and prepare for trial.™ In an attachment in execution, several garnishees were summoned, and separate issues taken by each, and determined some in favor of the garnishees, and others in favor of the attaching-creditor: held, that the issue against each garnishee was in the nature of a separate suit, and that the garnishees were entitled to recover full costs on the issues determined in their favor. Where the answer of the garnishee, in an attachment in execution, shows that he holds goods of the defendant which have been pawned, pledged or demised to him, the court, construing the whole act relating to executions together, will award that, upon the judgment, a fieri facias should issue, under the provisions of the 23d section, ordering the goods to be sold subject to the rights of the pawnee, who, upon payment of his claim, would be compelled to yield possession to the sheriff’s vendee.¥ Hxecution against the stock of a corporation held by a defendant in his own name, may be either by a writ of fiert facias, under the act of 29th March 1819 se or by attachment under the act of 1836.8 The legal effect of an attachment laid upon a debt is, to restrain the garnishee 1 Willook v. Neel, Dist. Court, Allegheny, Dec. in any attachment-execution, or scire facias in cy Cities ih foreign attachment, issued out of any court of ila, 177, . / record of this state, the garnishee shall be found 6 Whart. 181. See 38 Ibid. 93. 41 Ibid. 229. to have in his possession or control no real or Where executors are garnishees, it is error to personal property of the defendant, nor to owe Lin eo against them de bonis propriis. fim any debt, the said garnishee shall be entitled I ae en to recover from the plaintiff, in addition to the Po ten a : ae . costs allowed by law, a reasonable counsel fee not 464 fi ‘ 7 . 446. Bright. Costs exceeding ten dollars, to be determined by the : court, and taxed as part of the costs. Purd. 838 618, M.46. See act 29 April Phos 7188. & R. 226, 2M. 15, fT Pena, St i urd. 929. 18 Magruder v. Adams, 1 T. & H. Pr. 3 925 * 9 Penn. St. 468. M7 Phila. 307. Lamb v. ee T.& 10 Purd. 837. H. Pr. 3 1209. B i eles i t 1 Tho act 11 June 1885, provides, that where 15 ad. 838, 16 ae 206 Pag 16 AN Pann St 214 A Dhitn 90 ‘ ATTACHMENT IN EXECUTION. 208 . from paying over the money either to his individual creditor or to the attaching- creditor, until the attachment is disposed of, and then only according to the result of that proceeding." Assignment of a debt, either actual or by operation of law, as by an attachment in execution, carries with it the right to use all securities for its recovery.” The pendencey of an attachment is no bar to an action against the garnishee, at the suit of a legal holder of the debt attached ; it neither abates nor bars an action ; pleading it has on y the effect of giving notice of the claim, and enabling the court [or justice] to mou d the judgment so as to protect the parties’ rights. A verdict and judgment against the garnishee in an attachment-execution is not conclusive, in a subsequent action by the trustees in insolvency of the defendant in the execution, against the garnishee.‘ And a judgment in favor of the garnishee is no bar to a subsequent attachment at the suit of another creditor.© A plaintiff may issue a second attachment, whilst a former one is pending and undetermined® IV. ATTACHMENT TO LEVY DEBTS. COUNTY OF POTTER, ss. The Commonwealth of Pennsylvania, To the Constable of E township, or to the next constable of the said county, most convenient to the defendant, greeting : We command you that you attach C. D., by all and singular his goods and chattels, rights, moneys and credits, in whose hands or possession soever the same may be, so that he be and appear before J. R., Esquire, one of our justices of the peace in and for the said county, on the 28th day of June, a. p. 1880, at four o’clock in the afternoon, to answer A. B. And also, that you make known to E. F., that he be and appear before our said justice, on and at the same day and hour, to show if anything they, or either of them, have, or has, or know, to say why a certain judgment recovered before our said justice, on the first day of May, a. p. 1880, against the said C. D., by the said A. B., for the sum of twenty dollars, besides costs of suit, which judgment remains unsatisfied, shall not be levied of the effects of the said C. D. in the hands of the said E. F.; and have you then there this writ. Witness our said justice, who hath hereunto set his hand and seal, this twentieth day of June, a. p. 1880. J. R., Justice of the Peace. [snat.] This attachment must be served on the garnishee in the same manner as a sum- mons, and should also be served on the defendant, if he can be found within the county. Return of the Constable.—Served on the within-named C. D. and E. F., respectively, on the 21st day of June 1880, by leaving a copy of the said attachment at their respective dwelling-houses, in the presence of one of their families respectively. 8S. S., Constable. In the case of attachment of stock, if held in another name than that of the real owner, the plaintiff must (before suing out the above writ) file in the office of the magistrate an affidavit, and enter into recognisance in the following form, viz. : V. AFFIDAVIT. E. F. vs. + Debt not exceeding $100. A.B LYCOMING COUNTY, ss. Berore mz, one of the justices of the peace in and for the county of Lycoming, per- sonally appeared E. F., the plaintiff above named, who, being duly sworn according to law, deposeth and saith, that there are ten shares of stock of the Lehigh Bank, held in the name of R. S., of the city of Pittsburgh, but which said shares the said deponent verily believes are really the property of the above-named A. B. And further saith ne if 8 d subscribed before me, this 10th day of May, a. p. 1880. Se neat etree ERY a eT M., Justice of the Peace. 13 Penn. St. 109. 4 35 Penn. St. 308. ; 4 Ibid. 248. And see 103 Ibid. 115. ; 29 Ibid. 396, 51 Ibid. 387. 4 Phila, 276. 5 1 Ibid. 357. 14 40 Ibid. 309. 210 ATTACHMENT IN EXECUTION. VI. REcoGNISANCE. E. F. vs. Debt not exceeding $100. A. B. LYCOMING COUNTY, ss. We, B. F., the plaintiff above named, G. F. and J. K., all of the borough of E—,, in the county aforesaid, do acknowledge ourselves to owe and be indebted to A. B., of N—, in the sum of fifty dollars, to be levied of our goods and chattels, lands and tenements, respectively, to the use of the said A. B., his executors, administrators or assigns. The condition of this recognisance is such, that whereas the said E. F. is about to sue outa writ of attachment in the nature of an execution against the said A. B., and to attach certain Lehigh Bank stock held in the name of R. S., of Pittsburgh, in satisfaction of a judgment recovered against the said A. B., before L. M., one of the justices of the peace in and for said county, for ten dollars, with costs. Now, if the said HB. F, shall and do well and truly pay and satisfy the said R. 8., or other person to whom said stock really belongs, for all such damages as he or they shall be adjudged to have sustained by reason of the said attachment, or proceeding therein, in case said stock shall not be the property of the defendant, then this recognisance to be void, otherwise to be and remain in full force and virtue. Taken and acknowledged before me, this 10th day of May, a. p. 1880. L. M., Justice of the Peace. Where stock is attached which belongs to another person than the defendant, the owner may be admitted to become a party to the suit, and take defence in like manner as if he had been summoned as garnishee, upon his filing an affidavit that the stock is really his property, and entering into a recognisance with two sureties, conditioned for the payment of such damages as may be adjudged the plaintiff, if the stock should really belong to the defendant. The above form of affidavit and recognisance can be readily altered to meet such a case. VII. INTERROGATORIES TO GARNISHEE. A.B Before Justice J. R. ae Attachment in Execution. ; KB. Garnishes af & DD. oe to be answered by garnishee, filed June 20th, First. Do you know C. D., of whom you are garnishee in the above writ of attachment? Second. Have you had commercial or other transactions with the said C.D? If yea, what was the state of your accounts with the said C. D., at the time of the service of the above writ of attachment upon you? Third. Was there, or was there not, a balance in your hands in favor of the said C. D., at the time of the service of the said writ of attachment upon you? If yea, state the amount particularly. Fourth. Had you in your possession any goods, merchandise, moneys, rights, credits or effects of any nature whatsoever, belonging to the said C. D., at the time of the service of the above writ of attachment on you? If yea, state the amount of said money, and the nature of the rights and credits, and the nature and quantity of said goods, merchan- dise or effects. A.B VIII. RULE ON GARNISHEE TO ANSWER. A. B. Before Justice J. R. D8, Attachment in Executi E. F., Garnishee of C. D. UuOn.. Anp now June 20th, 1880, on motion of A. B., plaintiff, rule entered on the garnishee to answer the interrogatories filed in this case, in eight days, or judgment, according to the act of assembly in such case made and provided. Witness my hand and seal. J. R., Justice of the Peace. [sat] Sir: Take notice that the foregoing interrogatories, to be answered by you, have been filed, and that a rule has been entered to answer the same in eight days from the service of this notice ; and also, that unless your answers thereto, in writing, on oath or affirmation, be filed in my office, within that time, judgment will be entered against you by default, for the amount of the plaintiff's claim. J.R, i Te Mr EF. Goenhes , Justice of the Peace. The act of assembly requires that the copy of the interrogatories and rule to answer should be served on the garnishee personally, If, on the return-day of the attachment, the copy of the interrogatories and rule to answer have not been served, at least eight days previously, on the garnishee, in person, the justice, on the appli- ATTACHMENT IN EXECUTION. 211 cation of the plaintiff, should continue over the cause, until such time as will be sufficient to effect the service required by law. [X. ANSWERS OF GARNISHEE. A. B. ne Before Justice J. R. EF. Gariishae of C.D. Attachment in Execution. E, F., the garnishee above named, being duly sworn [or affirmed], saith, i the interrogatories filed by the plaintiff 7 iia eee : ! fee eee First. I do know the said C. D., of whom I am garnishee in the writ of attachment issued in this case. Second. I have had commercial transactions with the said C. D. I have purchased goods from him. At the time of the service of the writ of attachment upon me, I was indebted to the said C. D. in the sum of twenty dollars, for goods purchased from him. Third. As I have already stated, in answer to the second interrogatory, there was a balance of $20 in my hands, in favor of the said C. D., at the time of the service of the writ of attachment. Fourth. At the time of the service of the writ of attachment, I had not in my posses- sion any goods, merchandise, moneys, rights, credits or effects of any nature whatever, belonging to the said C. D., except as I have before stated in answer to the second inter- rogatory. E. F worn [or affirmed] and subscribed before me, this 20th day of June 1880. J. R., Justice of the Peace. X. EXECUTION AGAINST GARNISHEE. POTTER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of E—— township, or to the next constable of the said county most convenient to the defendant, greeting : Wuerzas, A. B., on the second day of July 1880, before J. R., Esquire, one of our justices of the peace in and for the said county, obtained judgment against E. F., garnishee of C. D., for the sum of twenty dollars, to be levied of the moneys, rights and credits of the said C. D., in the hands and possession of the said E. F., which judgment remains unsatisfied. Therefore, we command you, that you levy the said sum of twenty dollars of the moneys, rights and credits of the said C. D., attached in the hands of the said E. F. ; and if the said H. F. refuse or neglect, on demand, to pay the same, then that you levy the said sum of twenty dollars of the proper goods and chattels of the said E.F., as in the case of a judgment against him for his own proper debt; and indorse hereon, the time you make your levy, and hereon, or on a schedule to be hereunto annexed, a list of the same; and within twenty days from the date hereof expose the same for sale, by public vendue, you having given due notice thereof, by three or more advertisements put up in the most public places in your township; and returning the overplus, if any, of the said sale, to the said garnishee ; and of your proceedings herein, together with this execution, make return to our said justice, on or before the twenty-second day of July 1880. Witness our said justice, who hath hereunto set his hand and seal, this second day of July, a. p. 1880. J. R., Justice of the Peace. [smat.] XI. DocKEt-ENTRY. A. B. ATTACHMENT IN EXECUTION issued June 20th, 1893, return- vs, able ee inst. at 4 o’clock, P.M., on judgment obtained be- : fore me by the said A. B., against the said C. D., on the Ist May E. F, Garnishee of C. D. 1893, for $20, and costs. 8 S, constable. Same day, plff. files interrogatories, and rule entered on garnishee to answer in eight Costs. days, or judgment. Returned on oath, “Served attachment on Justice, deft. and garnishee, and served copy of interrogatories and rule Attachment 35|to answer, on garnishee, personally, on 21st inst.” June 28th, Entering action . 25 Ret. and oath of const, Rule. . . . Interrogatories . 6 Notice to garnishee . Ret, of rule. Proof of service of rule (1 oath) 7 2 : MWe (LO eee a whereupon judgment that the plff. have execution of the said Answer (1 oath) . Trial and judgment . Execution . . Return. . Satisfaction Constable, Serving att. on garnishee . Mileage < . Serving att. on deft. . Mileage if 7 . Serving notice of rule Mileage = . Serving execution ‘omm’s . Mileage 1893, plff. appears, and claims to have execution of his judg- ment on the effects of the deft. in the hands of the garnishee. Deft. does not appear. Garnishee appears, and files his answer, admitting that he is indebted to the deft. in the sum of $20, debt of $20, due by the garnishee to the deft. and attached in his hands; and if the said garnishee refuse or neglect, on de- mand by the constable, to pay the same, then the same to be levied of his, the garnishee’s, goods and chattels, as in case of a judgment against him for his own proper debt; and that the garnishee be thereupon discharged, as against the deft. of the sum so attached and levied. July 2d, 1893, execution issued against garnishee. S.S., constable. Returned July 5th, 1893, “Money paid into office.’ Received $15.47 cents, amount of debt attached, less cost of attachment suit. (Signed) A.B. [ 212 ] Attachment for Contempt, When and how it should issue. A Justice oF THE Peace has no power to punish contempts committed before him, in a summary manner, by imprisonment. That power belongs to the higher courts alone! But they may, in such cases, hold the offender to bail, to answer “upon indictment, and to be of good behavior in the meanwhile; and may commit him in default of bail. An indictment will lie for a contempt of a justice of the peace, which, though not a breach of the peace, amounts to an obstruction of the execu- tion of his office? Such party may be bound over or committed, without a previous charge or oath, on hearing.’ ; The only case in which a justice can issue an attachment for contempt, is that of disobedience of his process. If a witness, not having a sufficient excuse, neglect to attend upon a subpena, he is liable to be proceeded against by attachment for a contempt of the process of the law. In order to ground this summary mode of proceeding, it is necessary to prove that the witness was personally served with the . subpena ; unless by his own act he dispense with the legal form of service.* An attachment has been refused where the witnéss was very old, weak and infirm, and it was sworn that he could not attend without danger of his life. And where it appeared that witnesses against whom an attachment had issued for dis- obedience to a subpana, had been so much indisposed as to be incapable of attend- ing, they were discharged, and the costs of the attachment directed to abide the event of the suit.6 The general rule appears to be, that the party applying for an attachment, must make out a clear case of contempt. The following is the form of an attachment to compel the attendance of a witness : CITY OF PHILADELPHIA, ss. : The Commonwealth of Pennsylvania, To M. G., Constable of the 2d ward of the said city, greeting: We command you, that you attach M. R., of the said city, tanner, if he be found in your bailiwick, and him safely keep, so that you have his body before the subscriber, one of our magistrates in and for the said city, at his office, No. 340 South Fifth Street, on the 10th of October 1880, aforesaid, to answer us of a certain contempt by him done, in refusing to appear before our said magistrate, at his office, then and there to testify his knowledge in a certain action depending before ovr said magistrate, wherein W. Y. is plaintiff and A. D. defendant, as the said M. R. was duly required and summoned so to do. Have you then there this writ. Witness our said magistrate, at Philadelphia aforesaid, this the eighth day of October, in the year of our Lord one thousand eight hundred and eighty. G. W., Magistrate. [szat.] When the case shall be again before the justice and the witness in attendance, he must pay the costs of the attachment and service, unless he can satisfactorily prove that it was uot in his power to attend at the time he was required. Under such ciréumstances the costs must abide the issue of the suit. The justice has no power to punish the contempt of the process by imprisonment; even the superior courts can punish disobedience to process by fine only.? If the witness attend, but refuse to be sworn and give evidence, he may, on application, be committed—* for having refused to testify his knowledge in a case now pending before our magistrate G@. W., at his office in the city of Philadelphia, he having refused to be sworn and give evidence in the said case.’ A witness persevering in silence, when questioned, may be committed for contempt, and con- 12 Penn. St 99 5 1 Dall 2128. &R.175. 2 Bro. 149, iT 8 Pr, 2 650 8 2 Chest. Co. R. 557, 71Gr. 458, Purd. 382 417. & H. Pr. 3649. 1Y, 303, : aren ATTORNEYS, 213 fined until he does answer.!_ The commitment in such case should be “ until the witness is willing to testify.’” A magistrate appointed under a rule of a court of record to take depositions, is empowered to imprison a witness who contumaciously refuses to be sworn in order to testify in the cause.* But although the magistrate, in such case, has power to attach or commit, ¢ seems, the more proper course is, to make a special return of the matter to the court from which the rule issued, when the witness may he suh- penaed to appear at the bar of the court, and answer, or be attached 4 Where a witness before an alderman refused to answer a proper question in the cause, and the alderman committed him until he should fully answer, Rogers, J., refused to discharge the witness, on habeas corpus, and remanded him until he should answer the question propounded § Attorneys. I. Attorneys at law. II. Warrants of attorney. I. ATTORNEYS AT LAW. An ATTORNEY AT LAW is a person duly admitted in the courts of law, and who is appointed by another person, usually denominated his client, to prosecute or defend some suit on his behalf; and he is considered as a public officer, belonging to the courts of justice in which he may be admitted.® The constitution of Pennsylvania provides, ‘‘ that in all criminal prosecutions, the accused hath a right to be heard by himself and his counsel.” Art. IX., § 9. And by the act of 21st March 1806, it is provided, that “in all civil suits or proceedings in any court within this commonwealth, every suitor and party con- cerned, shall have a right to be heard by himself and counsel, or either of them.” The right of a party to be heard by himself or counsel, was originally conferred by the provincial act of 1700, which enacted ‘ that in all courts, all persons, of all per- suasions, may freely appear in their own way and according to their own manner, and there personally plead their own cause themselves, or, if unable, by their friends.’’® The judges of the several courts of record of this commonwealth shall, respect- ively, have power to admit a competent number of persons, of an honest disposition, and learned in the law, to practise as attorneys in their respective courts.? Before any attorney. admitted as aforesaid, shall make any plea at the bar, except in his own- case, he shall take an oath or affirmation, as follows, viz. : “ You do swear or affirm, that you will support the constitution of the United States, and the constitution of this commonwealth, and that you will behave yourself in the office of attorney, within this court, according to the best of your learning and ability, and with all good fidelity, as well to the court as to the client ; that you will use no falsehood, nor delay any person’s cause for lucre or malice.” No alderman or justice of the peace shall practise as attorney or counsellor in any court of justice in this commonwealth, in any case which has been or may be removed from before him by appeal, or by writ of certiorari ; or act as agent in any such case. If any attorney at law shall misbehave himself in his office of attorney, he shall be liable to suspension, removal from office, or to such other penalties as have ‘hitherto been allowed in such cases by the laws of this commonwealth.” 12 Rep. Const. Ct. 167. 2 Clark 344. 1 6 3 Bl. Com. 25. P Greenl. Evid. 3 319. 1 Purd. 150. 2 8 Law Rep. 167. 8 Franklin’s Laws, 34. 3 2 Clark 340. 9 Act 14 April 1834 2 68. Purd. 150. 4 Pfiel v. Elmes, 1 T. & H. Pr. 3611. In such 10 Ibid. 2 69. It is in the discretion of the cage, the court will not grant an attachment with- courts to admit females to practice as attorneys. out a previous rule to show cause. 15 W.N.C. 14 W. N.C. 466. 127, And see 105 Penn. St. 13. 1 Act 14 April 1834 3 75. Purd. 150. 5 Bright. 109. Ibid. 373. Purd. 151. 214 ATTORNEYS If any attorney shall retain money belonging to his client, after demand made by the client for payment thereof, it shall be the duty of the court to cause the name of such attorney to be stricken from the roll of the attorneys, and to prevent him from prosecuting longer in such court. Se ete An attorney’s agreement to refer a cause binds his client ;? and he may agree to a case stated.® His authority to confess a judgment need not be in writing.* Asa general rule, he has not power to bind his client by a compromise.’ Payment to the attorney is payment to the principal.* The court will always look into the deal- ing between attorney and client, and guard the latter frown imposition.” An attorney at law may maintain an action on an implied asswmpsit for profes- sional services rendered by him, without regard to the quality of the services. He has no lien for his fees on money in the hands of the sheriff;* but he has a lien tor his professional compensation on the papers in his hands, or on the money collected by him.” An attorney at law who collects money and refuses to pay it over to his client, until sued for it, is entitled to no compensation for his professional services." Whenever an attorney disobeys the lawful instructions of his client, and a loss ensues, the atturney is responsible fur that loss.12 Members of the bar are not entitled to witness fees for attendance in a court in which they actually practise.” When money is paid to an attorney for services to be rendered at a future day, a right of action to recover it back arises at the time he neglects or refuses to render the service.* A payment to an attorney by a sheriff, who has notice that the attorney’s authority has been revoked, is bad.3 A power of attorney to collect money, the attorney to receive one-half of the net proceeds, as compensation, is not irrevocable. II. WARRANTS OF ATTORNEY, A warrant of attorney is a written authority to the attorney or attorneys to whom it is directed, to appear for the person executing it, to receive a declaration for him in an action at the suit of the person therein mentioned, and thereupon to confess the action, or suffer judgment to pass by default; and to sign a release of all errors and defects touching such proceedings. A warrant of attorney is generally given under seal, though it is said this is not indispensable.” A warrant of attorney may be attested by the attorney to whom it is directed.® The judgment of a justice of the peace entered by authority of a warrant of attorney is void ; a transcript thereof filed in the common pleas as a judgment, upon which executions were issued, lands levied and sold, is also void, and will be reversed, and restitution of the money made by the sheriff’s sale awarded.8 A warrant of attorney to confess judgment given by a single woman, is not revoked by ber subsequent marriage.? a Act 14 April 1834374, Purd.151. A'’writof 4 W. 420. 7 Penn. St. 376. See 102 Ibid. error lies to summary proceedings against an 549, attorney, by act 19 May 1879. Purd. 151. 12 8 Mass. 57. 21 Dall. 164. 13-1 Whart. 276, 3 50 Penn. St. 85. 14 2 Mass. 198. ‘ Ee pl Ibid. 493, 16 3 W. 357. Foe Thid. 514, 99 Ibid. 147. 100 Ibid. 108. 16 54 Penn. St. 212, 266. See 100 Ibid. 563. Bee 103 Ibid. 77. 1 1 Bouv. Inst. 351. 5 Taunt. 264. 1 Del. Co. : ine a ea 1 Tidd’s Pract. 93. ns, 253. owndes, Maxwell & Pollock 557. s.c 21 : 4 W. 334. 2P. & W. 62. Law J. RB. (N. 8.) Q. B. 16. 3 W. 357. But see 33 Pitts. L. J, 150. 19 6 W. 294. ss a Penn. St. 99. 38 Ibid. 231. 33 Pitts. L. 20 35 Penn. St, 146. [{ 215 ] Auctions, An Auction is a public sale, where the parties designing to purchase bid upon each other, that is. successively offering an increasing price; the sale being to the highest bidder.’ From the circumstance of the bids being repeated aloud by the salesman or auctioneer, it is sometimes termed a sale “by outcry.”? An auctioneer differs from a broker in being authorized only to sell, and that at public auction. The business of an auctioneer is regulated, in this state, by various acts of assembly, applying to different parts of the commonwealth. By these statutes, auctioneers are required to take out licenses or commissions, authorizing them to carry on the business, for which they must pay a price regulated by law, according to the privileges granted. They give bonds to the commonwealth for the faithful performance of the several duties enjoined upon them by law; and are sworn to conform in all things to the auction laws of the state. Duties are laid on certain goods sold at auction; and penalties inflicted for selling without a commission, or otherwise violating the laws. They are bound to report quarterly to the state treasurer, under oath, the amount of their sales, and to pay over to him the amount of the duties accruing thereon by law. The act of 9th February 1751 prohibits the giving or selling of any rum, wine or other strong liquors, at any auction, to the persons attending the same, under a penalty of five pounds for each offence; one-half for the use of the overseers of the poor, and the other half for the use of the informer. These penalties are recoverable before any justice of the peace, who is authorized summarily to convict the offender, either on his own view, or on the testimony of one or more witnesses; saving to the defendant the right of appeal. These fines are to be levied by distress and sale of the defendant’s goods, and for want of such distress, he may be committed to prison, without bail, for the space of forty days. The auction laws do not extend to hinder any executor or administrator from selling at auction, the lands or goods of their respective testators or intestates; nor to any judicial sales by sheriffs or constables; nor to the sale of goods distrained for rent.* ee A sale by auction is not complete until the bid has been accepted. The bid is only an offer to pay a stipulated price for the article about to be sold; and like every other offer, which has not been accepted, it may be withdrawn until accepted. Where a bid had been made at a sheriff’s sale by auction, and the sale adjourned, the bid was held to be withdrawn by implication. An auctioneer’s authority to sell may be revoked, even after he has incurred expenses in reference to the goods.? The general rule of law is, that parol evidence of declarations of an auctioneer is not admissible to vary the written terms of sale® If a purchaser at auction do not fulfil his contract, he is liable for the difference between the price which he bid and a less price for which the goods may be sold at a second sale at auction, with interest thereon.? Ifa purchase be made at auction of numerous articles of personal pro- perty, at one and the same time, and from the same vendor, the whole constitutes one entire contract, though the articles purchased be struck off separately, at separate and distinct prices. A purchaser at auction “ for cash before removal of the goods,” is liable in a suit by the vendor, unless he show an offer to pay the price and remove the goods purchased, or that the plaintiff prevented it. If goods be sent to auction, with directions to the auctioneer to dispose of them at a certain average advance on the invoice price, and he sell them for less than 1 1 Burrill’s Law Dict. 162. 1W. & S. 552. any mode by which the bidder announces his wil- 2 Babington on Auctions 2. The word “outcry” lingness to give a particular price. 56 Penn. St. in our statutes is synonymous with “public ven- 245. due.” 1W. &S. 553. 6 6 Penn. St. 486. 8 2 H.BI.555, A merchant cannot be licensed 710C. B. 744. 88 an auctioneer, merely to enable him io sell his : i S My ae Je bean Bek, OT Burd. 155, 158. eee 10 2W. & 8. 377. 2 Penn. St. 74. 1W.N. C. 38. 5 1 Bouv. Inst. 392, A bid may be made in 1 Ibid. 216 BAIL. the limited price, an action may be maintained against him for the difference between the limited price and that for which the goods were sod* ‘A reservation in the condition of sale, to the owners, of an open bid, is proper. But if the owner of an estate put up to sale by auction employ puffers to bid for him, it is a fraud on the real bidders, and the highest bidder cannot be compelled to complete the contract.2 The employment of a bidder merely to raise the price at a sale of real estate, under an order of the orphans’ court, is a fraud upon the pur- chaser! An agreement entered into for the purpose of preventing competition at a sale of property, under execution or distress for rent, is void as against public poliey.® An auctioneer’s bond, under the act of assembly, is a security for his private cus- tomers, as well as for the duties payable to the state® And the person who first brings suit is entitled to priority of payment." A licensed auctioneer, in the city of Philadelphia, who advances money on goods, and charges commissions on such advances, is liable to the payment of a pawnbroker’s license, under the city ordinance.® ail. I. Bail defined and explained. IV. Bail for stay of execution or appeal. II. Bail in civil cases. V. Form of scire facias against bail. III. Form of a bail-piece. I. Baru is used in our common law, for the freeing or setting at liberty of one arrested or imprisoned upon action, either civil or criminal, on surety taken for his appearance, at a day and place certain.® The reason why it is called bal is because, by this means, the party restrained is delivered into the hands of those that bind themselves for his forthcoming, in order to a safe-keeping or protection from prison; and the end of bail is to satisfy the condemnation and costs, or render the defendant to prison.” II. Bat IN CIVIL CASES. Since the passage of the act of 12th July 1842," to abolish imprisonment for debt, a recognisance of special bail in its technical sense—bail for the body—can only be taken, by a justice, for the appearance of a defendant arrested on a capias, in a case not within the provisions of that act, viz., in trespass or trover, for the recovery of money collected by a public officer, or for official misconduct. One who is special bail may depute another to execute a bail-piece for him, or one of two special bail may depute the other to execute it.” Bail may take up their principal, when attending court as a suitor, or at any other time. Special bail may arrest their principal anywhere, at any time, and under any circumstances." ap in a suit entered in another state may seize and take the principal in this state. Bail may depute another to take and surrender their principal; and the bail, or the person deputed by him for that purpose, may take the principal in another state, or at apy time and in any place; and may, after demand of admittance, and refusal, break open the door of the principal’s house, in order to take him. But if they use more force than is necessary, they will (as in other cases) become trespassers ab inttio {from the beginning], and be liable for false imprisonment.” If the creditor has the means of satisfaction in his hands, and chooses not to retain it, but suffers it to pass into the hands of the principal, the surety is dis- 1118. & R. 86, 10 i 132 Sm. 9. u Para, oo ® Solw. N. P. 191. 1 Bro, 346. 23 W. Va. 338. 126 W. 402. 14 Penn. St. 446. 16 zbid. 200. 328m.9 134 ¥. 123, 53.N.¥.129. 1 Bouv, Inst. 236. 14 Thid. 63 Y.335. 4 Dall. 95. 3 W. 297, 182 Y, 263, 3 Dall. 500. 1 Binn. 370, 16 7 Johns, 140, 8 35 Penn. 277. 1 ® Bract, lib, 3, tit, 2, ¢. 8. Spares BAIL. 217 charged! When the surety apprises the creditor of the means of obtaining satisfaction, without resorting to his personal liability, and the creditor refuses or neglects to use these means, the surety is discharged” It seems, that a surety who has property of his principal in bis hands, may give it up to satisfy an execution against himself for the debt for which he was surety.® A temporary stay of execution, by agreement of the plaintiff, in covsideration of a confession of judgment by the defendant, will not exonerate the special bail in the action.‘ Where money is paid by a surety for two principals, the law implies a promise by each principal to reimburse the surety for the whole amount paid. Special bail has a right to appeal from the judgment of a justice against them, notwithstanding the act of 1810 says that, on the judgment of the justice, execu- tion shall issue without stay.* A surrender of the principal, in an insolvent bond, before the day of appearance. will not discharge the bail from his obligation.’ The bail of an insolvent is entitlea to every part of the condition of the bond prescribed by the act of assembly ; ana if it do not contain the alternative of a procurement of a discharge or a surrender to jail, no recovery can be had upon it.8 Bail may recover such sums as they have been necessarily and fairly obliged to expend—as in sending after and securing their principal after he has absconded, in order to surrender him.? III. Form oF A BAIL-PIECE. CITY OF PHILADELPHIA, ss. A. B.) Before [E. F., Magistrate.] Acrion or Trespass. vs. > Judgment for plaintiff, for [twenty-six dollars and twenty-nine cents] damages, Cc. D and eighty-seven cents costs. I do certify, that [G. H.], of [No. 20 Arch street], became special bail for the defend- ant, in the above action, in the sum of a dollars, for the appearance of the said defendant at my office, on the [seventh] day of [August] 1880, by recognisance taken before me, one of the magistrates in and for the said city, the [second] day of [August] 1880, as appears by the record of the said recognisance remaining in my office. Witness the said magistrate [or justice of the peace], who has hereunto set his hand and seal, the [twentieth] day of [August], in the year of our Lord one thousand eight hundred and eighty. E. F., Magistrate. [szat.] The justice must recollect that so long as the provisions of the act of 12th July 1842, are in force, he cannot issue a bail-piece to arrest the principal, in any case within the provisions of that act. IV. Bar FOR STAY OF EXECUTION OR APPEAL. The act of 20th March 1845” provides, that the bail in all cases where bail is required for stay of execution, shall be bail absolute, with one or more sufficient sureties, in double the amount of the debt or damages, interest and costs recovered, conditioned for the payment thereof, in the event that the defendant fail to pay the same at the expiration of the stay of execution. The same act provides, that the bail, in cases of appeal from the judgments of aldermen and justices of the peace, shall be bail absolute, in double the probable amount of costs accrued and likely to accrue, with one or more sufficient sureties, conditioned for the payment of all costs accrued, or that may be legally recovered against the appellant. In order to obtain an appeal or stay of execution, women, as well as men, must give the security required by law. See AcTIONS AT LAW, V. and VII. 1. 185. & R. 452. ™4 W. 69 413 Ibid. 157 : : i leagerg 3 sp. ‘ 3 W. 376. 10 Purd. 830 § 3 Binn. 126 11 1 Clark 501. 63S. aR. 93. 218 BAIL AND COMMITMENT. V. Form oF SCIRE FACIAS AGAINST BAIL. BUCKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of township, or to the next constable of the said county most convenient to the defendant, greeting : Wuerzas, ——, on the —— day of ——, A. p. 1880, obtained judgment before J. R. one of the justices of the peace of the said county, against ——, for the sum —— debt, and —— costs. And whereas , on the —— day of — 1880, entered into a recounisance before the said justice, in the sum of ——, conditioned that the said —— should, at the expiration of —— months from the said - day of —— 1880, pay the amount of the said judgment, debt, interest and costs, or if he should fail to pay the same, that he the said —— would pay the same for him. And whereas, the said hath not paid the said —— the debt, interest and costs aforesaid, nor hath the said paid the same, as we have been informed, although the said term of —— months has expired. Now, therefore, we command you, that you make known to the said —— that he be and appear before our said justice, at his office at ——, on the —— day of —— 1881, between the hours of nine and ten in the forenoon, to show cause, if anything he knows, or hath to say why the said sum of —— due and in form aforesaid acknowledged, should not be made of the proper goods and chattels of him the said to the use of the said ——, according to the form and effect of the said recognisance, if to him it shall seem expedient. And hereof fail not. Witness our said justice, at . who hath hereunto set his hand and seal this —— day of ——, a. p. 1881. J.R., Justice. [sear] If the surety can be served with process, a scire facias is unnecessary, as an action of debt will lie upon the recognisance, to be commenced by the ordinary writ of summons. If the bail reside in another county, a transcript of the judgment should be transmitted to a justice or alderman of that county, who may issue pro- cess against the bail.’ Bail and Commitment in Criminal Cases. I. For what crimes bail may be taken, and by V. Form, &c., to appear and keep the peace. VI. Recognisance to give evidence. VII. VIII. [X. Forms to return to court in cases of assault and battery, to keep the peace and give evidence. X. Docket-entry of recognisance. whom. II. Where and how the prisoner may be com~- mitted. III. A general form of commitment. IV. Form of a recognisance to appear at court. J. FoR WHAT ORIMES BAIL MAY BE TAKEN, AND BY WHOM. EXcEssIvE bail shall not be required.? All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident or pre- sumption great.’ In all cases, the party accused, on oath or affirmation, of any crime or misde- meanor aga‘nst the laws, shall be admitted to bail by one or more sufficient sureties, to be taken before any judge, justice, mayor, recorder or alderman where the offence charged has been committed, except such persons as are precluded from being bailed by the constitution of this commonwealth: Provided also, 'That persons accused as aforesaid, of murder or manslaughter, shall only be admitted to bail by the supreme court or one of the judges thereof, or a president or associate law judge of a court of common pleas: persons accused, as aforesaid, of arson, rape, mayhem, sodowy, buggery, robbery or burglary, shall only be bailable by the supreme court, the court of common pleas, or any of the judges thereof, or a mayor or recorder of a city. All sureties, mainpernors and bail in criminal cases, whether bound in recogni- I 3 Clark 431. In this case, Judge King says a justice is not authorized to proceed upon two returns of nihél to successive writs of scire facias against bail residing in another county; but suppose the surety has removed to another state, leaving property within the jurisdiction, what is the plaintifi’s remedy, if he cannot proceed by ecire facias and alias; or is he wholly remediless, He could go into the state of the surety’s residence, and obtain judgment there, but an execution issued on such judgment would not reach the pro- perty here. Possibly, he could proceed against the surety as a non-resident debtor, under the act of 1874. Purd. 991. 2 Const. U. S. Amend. art. VIII. Const. Penn. art. I. 2 13. 8 Const. Penn. art. 1. 314. See 2 Pitts. 362, 4 Act 31 March 1860 37. Purd. 546. BAIL AND COMMITMENT. 219 sances for a particular matter or for all charges whatsoever, shall be entitled to have a bail-piece, duly certified by the proper officer or person before whom or in whose office the recognisance of such surety, mainpernors or bail shall be or remain, and upon such bail-piece, by themselves or their agents, to arrest and detain, and surrender their principals, with the like effect as in cases of bail in civil actions ; and such bail-piece shall be a sufficient warrant or authority for the proper sheriff or jailer to receive the said principal, and have him forthcoming to answer the matter or matters alleged against him: Provided, That nothing herein contained shall prevent the person thus arrested and detained from giving new bail or sure- ties for his appearance, who shall have the same right of surrender hereinbefore provided. When any one is arrested on a warrant or bail-piece in any criminal cage in which a justice of the peace would, by existing laws, be allowed to take recognisance of bail for his appearance to answer the offence or crime complained of, the officer or person making the arrest may take the accused before a justice and have him released on the requisite security being given ; and his return, when properly made, shall exonerate him from further liability. To refuse or delay to bail any person bailable is an offence against the liberty of the subject, in any magistrate, by the common law.* If the offence be not bailable, or the party cannot find bail, he is to be committed to the county jail by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his committment—there to abide till delivered by due course of law.* A justice of the peace may discharge from prison one committed by him for a bailable offence, whether felony or misdemeanor, taking a recognisance for his appearance at court to answer.? II. WHERE AND HOW THE PRISONER MAY BE COMMITTED. If a man commit felony in one county, and be arrested for the same in another county, he shall be committed to jail in that county where he is taken. Yet, if he escape and be taken on a fresh suit in another county, he may be carried back to the county where he was first taken.6 But a warrant issued by a justice in one county, and indorsed by a justice of another, charging a misdemeanor to have been committed in the county whence the warrant issued, will not justify the detention of the offender in the jail of the county where the warrant was endorsed." The mention of the name, and the authority of the justice (Lord Hale says), in the beginning of the mittimus, is not always necessary, for the seal and subscrip- tion of the justice to the mittimus is sufficient warrant to the jailer; for it may be supplied by averment that it was done by the justice® The mitt’mus should contain the name and surname of the party committed, if known; if not known, then it may be sufficient to describe the person by his age, stature, complexion, color of his hair, and the like, and to add that he refuseth to tell his name? It ought to contain the cause, as for treason or felony or suspicion thereof; otherwise, if it contain no cause at all, and the prisoner escape, it is no offence at all; whereas, if the mittimus contained the cause, the escape were treason or felony, though he were not guilty of the offence, and, therefore, for the king’s [commonwealth’s] benefit, and that the prisoner may be the more safely kept, the mittimus ought to contain the cause.” A warrant or mitt¢mus, to answer to such things as shall be objected against him, is utterly against law." . Also, it ought to contain the certainty of the cause; and, therefore, if it be for felony, it ought not to be generally for felony, but it must contatn the special nature of the felony, briefly, as for felony for the death of such an one, or for burglary, in 1 Act 31 March 1860 2 8. Purd. 547. W.&8. 314. 2 Pars, 458. 2 Act 24 Feb. 1870. Purd. 546. The title of this act, refers only to Crawford county, but the enactment is general. But the title of an act is now deemed a part of it. 66 Penn. St. 164, 70 Thid. 311. And see 94 Ibid. 450. 1 8 4 Bl. Com. 242. ul * Thid. 244. 1 Gr. 218. 2 Hale H. P. C. 122. 1 Ibid. 577. 1 Chit. Cr. L. 27. 2 Inst.52. 4 Mass. 497. 2 Ash. 61. 2 Tust. 591. 220 BAIL AND COMMITMENT. breaking the house of such an one; and the reason is, because it may appear to the judge upon a habeas corpus, whether it be felony or not.’ The mittimus must be under seal; and without this the commitment is unlawful ; the jailer is liable to false imprisonment; and the wilful escape of the jailer, or breach of prison by the felon, makes no felony.’ It should also set forth the place at which it is made (that it may appear to be within the jurisdiction of the justice). It must also have a certain date of the year and day.’ The act of 30th March 1821 directs, that it shall be the duty of every justice of the peace of the county or alderman of the city of Philadelphia, before whom any recognisance of bail or surety in any criminal or supposed criminal case shall be taken, to set down accurately and at large, in a docket or record to be kept for that purpose, the name, place of abode, particularly describing the same, and the occu- pation or business of such recognisance or surety; and if the said recognisor or surety shall not be a housekeeper, the name and place of abode, particularly describing the same, and the occupation or.business of the person or persons with whom such recognisor or surety may reside; and the said justices of the peace of said county, or aldermen of the said city, are required and enjoined to make a full and complete return of said recognisance or surety to the proper court having cognisance of the case, and of all and every the sureties [entries, gu ?] so made on his docket or record, touching or relating to such recognisance ; together with the proceedings of such justice of the peace or alderman, relating to the case in which such person or persons may have become bound as a recognisor or surety as afore- said. A recognisance is a bond of record, testifying the recognisor to owe a certain sum of money to some other, and the acknowledging of the same is to remain of record, and none can take it but only a judge or officer of record. But whensoever any statute giveth them power to take a bond of any man, or to bind over any man to appear at the assizes or sessions, or to take sureties for any matter or cause, they may take a recognisance. Yea, wheresoever they have authority given them tc cause aman to do a thing, there it seemeth they have power given them to bind the party by recognisance to do it; and if the party shall refuse to be bound, the justice may send him to jail.6 He can only require security till the next court.” pa ‘ Pe Shi ps 6 Be me, Se Every obligatiog’/and recognisance taken by justices of the peace must be made to the commonwealth. It must also contain the name, place of abode, and trade or calling, both of principals and sureties, and the sum in which they are bound. And it is most commonly subject to a condition, which is either endorsed or under- written, or contained within the body of it, upon the performance of which the recognisance shall be void. Feme coverts (married women) and infants ought to find security, and not be bound themselves. Where a justice or alderman has authority to inquire into an offence and com- mit the prisoner ; hold him to bail or discharge him, as circumstances may require, he may take a recognisance for his appearance before him, from time to time, pending the examinations.® A justice may take recognisance with sureties for the appearance of a party charged with a bailable offence, at an adjourned examination, and if he do not appear, he and his sureties may be called, and a proper entry of their default made? On a verdict of acquittal, the defendant’s recognisance is considered ipso facto [by the fact itself] void, and his bail discharged without ary further entry.2° A recognisance for a prisoner’s appearance at the next term, and not at the suc- ceeding Sessions, is to be discharged at the end of the term, by committing or discharging him, or delivering him on new bail." 1 2 Hale H. P.C. 122. 1 Phila. 80. 7 p vee : 8 Mass. 78. 1 Ibid. 488. 2 Pars. 458, 8 2 Hawk. P. 0.179, 23 tO. aD 4 Purd. 912, 0 4Cow. 410. B acer Ww. - But see 4 N.Y. 82. : alt. ¢. Ww2P. & W. 240, Ibid. o. 168, BAIL AND COMMITMENT. 221 III. Form oF COMMITMENT, GENERAL. CAMBRIA COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the township of D——, in the county of Cambri d to th keeper of the common jail of the sald county, greeting : e i a Tuersz are to command you, the said constable, forthwith to convey and deliver into the custody of the keeper of the said common jail, the body of A. B., charged before J. R., one of our justices of the peace in and for the said county, with [here specify the offence}. And you, the said keeper, are hereby required to receive the said A. B. into your custody in the said common jail, and him there safely keep until, &c. [as the case may be]. Witness the said J. R., at D—— township aforesaid, the fifth day of May, in the year of our Lord one thousand eight hundred and eighty. J. R., Justice of the Peace. [SEAL.| IV. Form oF A RECOGNISANCE TO APPEAR AT COURT. You, J. L. [the principal], do acknowledge to owe to the Commonwealth the sum of one hundred dollars, and you, T. P. and I. 'T'. [the bail], do acknowledge to owe to the Commonwealth the sum of one hundred dollars each, to be levied of your several and respective goods and chattels, lands and tenements, to the use of the Commonwealth ; upon this condition, that if the said J. L. shall appear, personally, at the next court of quarter sessions of the peace, to be held at R——, for the county of Berks, then and there to answer such matters and things as shall be objected to him, on behalf of the Commonwealth, for an assault and battery on S. B., and not to depart said court without leave, then this recognisance to be void, otherwise to be in full force and virtue. Are you content? V. FoRM OF RECOGNISANCE TO APPEAR, &e., AND KEEP THE PEACE AND BE OF GOOD BEHAVIOR. You, J. L. [the principal], do acknowledge to owe to the Commonwealth the sum of one hundred dollars, and you T. P. and T. T. [the bail], do acknowledge to owe to the Commonwealth the sum of one hundred dollars each, to be levied of your several and respective goods and chattels, lands and tenements, to the use of the Commonwealth ; upon this condition, that if the said J. L. shall, personally, appear at the next court of quarter sessions of the peace, to be held at R——, for the county of Berks, then and there to answer such matters as shall be objected against him on behalf of the Common- wealth, and shall, in the mean time, keep the peace, and be of good behavior, towards all the citizens of the Commonwealth, and especially towards S. B., and not depart said court without leave, then this recognisance to be void, otherwise to be in full force and virtue. Are you content? VI. FoRM OF A RECOGNISANCE TO GIVE EVIDENCE. You, J. L.,do acknowledge to owe the Commonwealth the sum of jifty dollars, to be levied of your goods and chattels, lands and tenements, to the use of the Commonwealth; upon this condition, that if you shall, personally, appear at the next court of quarter sessions of the peace, to be held at R——, for the county of Berks, then and there to testify, on behalf of the Commonwealth, against a certain B. W., and not depart the court without leave, then this recognisance to be void, otherwise to be, and remain, in full force and virtue. Are you content? When a recognisauce is taken before a magistrate, he may set it down on his docket thus—‘“ J. L., bound in $100 to appear, &., T. P. and T. T. bound in $50 each, to give evidence, &c.,” from which he may afterwards make the recognisance out at length, and certify to the next sessions, or (if the offences be not cognisable there) to the court of oyer and terminer. VII. ForMs of RECOGNISANCES TO BE SENT TO THE COURT. Assault and battery, on oath of 8. B. Commonwealth | 5 1,, of S—— township, yeoman, held in $100. Li R. S., of S—— township, yeoman, held in $100. Der A. T., of L——, carpenter, held in $100. Upon condition, that if the said J. L. shall, personally, appear at the next court of uarter sessions of the peace, to be held at R——, for the county of Berks, then and there to answer such things as shall be objected against him on behalf of the Common- ,; wealth, and not depart the said court without leave, and in the mean time keep the peace, 222 BAIL AND COMMITMENT. d be of good behavior towards all the citizens of the Commonwealth, and especially, fear then the above recognisance to be void, otherwise the said several sums of money to be levied of their goods and chattels, lands and tenements, respectively, to the use of the Commonwealth. , : Taken and acknowledged, the third day of May, a. p. one thousand eight hundred and eighty. Before J. R., Justice of the Peace. [szaz.| VIII. For THE PEACE AND GOOD BEHAVIOR. Surety of the peace and good behavior, on the affirmation of S B. Commonwealth | 7. Taf S— township, yeoman, held in $100. a R. S., of same township, yeoman, held in $100. J. L. ’ +g A. T., of H——, carpenter, held in $100. Upon condition, that if the said J. L. shall personally appear at the next court of quarter sessions of the peace, to be held at C——, for the county of Delaware, then and there to answer such things as shall be objected against him, on behalf of the Common- wealth, and not depart the said court without leave, and, in the mean time, keep the peace, and be of good behavior towards all the citizens of the Commonwealth, and espe- cially towards S, B., then the above recognisance to be void, otherwise, the said several sums of money to be levied of their goods and chattels, lands and tenements, respectively, to the use of the Commonwealth. Taken and acknowledged, the third day of May, a. p. one thousand eight hundred and eighty. Before J. R., Justice of the Peace. [szat.] IX. To GIVE EVIDENCE. Commonwealth Fornication, on oath of C. W. IL D. S., of M——, weaver, held in $50. Upon condition, that if the said C. W. shall personally appear at the next court of quarter sessions of the peace, to be held at R——, for the county of Berks, then and there to testify, on behalf of the Commonwealth, against a certain J. L., for committing fornication with a certain C. W., and not depart the said court without leave, then, the above recognisance to be void, otherwise, the said sum of money to be levied of his goods and chattels, lands and tenements, to the use of the Commonwealth. Taken and acknowledged, the third day of May, a. p. one thousand eight hundred and eighty. Before J. R., Justice of the Peace. [szat.] X. Dockrt ENTRY OF RECOGNISANCE, Assault and Battery, on oath of S. B. ae J. L., of S—— township, yeoman, held in $100. 7 R. 8., of S—— township, yeoman, held in $100, ae A. T., of H——, carpenter, held in $100. For the appearance of the defendant, &c., to answer, &c. & Weta eo, i To give evidence, &e. May 9th, a. pv. 1880. Before J. R., Justice of the Peace. [SEAL.] Commonwealth The parties need not sign the recognisance. If the justice shall subscribe his name, without his seal to it, this is enough, and that may be in either of these forms: —Acknowledged before me, J. R., or only to subscribe his name, thus, J. R. The recognisance is a matter of record, presently, as soon as it is taken and acknow. ledged, although it be not made up. 11 Obit. Or. L. 4, [ 223 ] Gailinent. I. Bailment defined. III. Judicial opini _ II. Acts of assembly. Pe I. BaitMEnt is a delivery of goods on a condition expressed or implied, that they shall be restored by the bailee to the bailor, or according to his directions, aa soon as the purpose for which they were bailed shall be answered. II. Act or 24 SepremBer 1866. Purd. 165. Secr. 1. Warehouse receipts given for any goods, wares, merchandise, grain, flour, produce, petroleum or other commodity, stored or deposited with any ware- houseman, wharfinger or other person in this state, or bills of lading, or receipts for the same, when in transit by cars or vessels to any such warehouseman, wharf- inger or other person, shall be negotiable, and may be transferred by indorsement and delivery of said receipt or bill of lading; and any person to whom the said receipt or bill of lading may be so transferred, shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges thereon ; and no property on which such lien may have been created, shall be delivered by said warehouseman, wharfinger or other person, except on the sur- render and the cancellation of said original receipt or bill of lading; or, in case of partial sale or release of the said merchandise by the written assent of the holder of said receipt or bill of lading, indorsed thereon: Provided, That all warehouse receipts or bills of lading, which shall have the words, “not negotiable,” plainly written or stamped on the face thereof, shall be exempt from the provisions of this act. Secr. 2. No warehouseman, wharfinger or other person, shall issue any receipt or voucher for any goods, wares, merchandise, petroleum, grain, flour or other pro- duce or commodity, to any person or persons, purporting to be the owner or owners thereof, unless such goods, wares, merchandise, petroleum, grain, flour or other produce or commodity, shall have been actually received into store, or upon the premises of such warehouseman, wharfinger or other person, and shall be in store, or on the premises aforesaid, and under his control, at the time of issuing such receipt. Srcr. 3. No warehouseman, wharfinger or other person, shall issue any second or duplicate receipt for any goods, wares, merchandise, petroleum, grain, flour or other produce or commodity, while any former receipt for any such goods, wares, merchandise, petroleum, grain, flour or other produce or commodity as aforesaid, or any part thereof, shall be outstanding and uncalled, without writing across the face of the same “duplicate.” Scr. 4. No warehouseman, whartinger or other person shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, merchandise, petroleum, grain, flour or other produce or commodity, for which a receipt shall have been given by him as aforesaid, whether received for storage, shipping, grinding, manufacturing or other purposes, without the re- turn of such receipt. ; Szcr. 5. Any warehouseman, wharfinger or other person who shall violate any of the foregoing provisions of this act, shall be deemed guilty of fraud ; and upon indictment and conviction, shall be fined in any sum not exceeding one thousand dollars or imprisoned in one of the state prisons of this state, not exceeding five years, or both ; and all and every person or persons aggrieved by the violation of any of the provisions of this act, may have and maintain an action at law, against the person or persons violating any of the foregoing provisions of this act, to recover all damages which he or they may have sustained by reason of any such violation 1 Jones Bailm. 2. Story Bailm. 32. 1 Bouv. Inst. 393. 224 BAILMENT. as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted of fraud as aforesaid, under this act, or not. ; Sxor. 7. The provisions of the foregoing act shall apply to grain stored in grain elevators, and to petroleum in barrels, stored or kept in places designated by law ; and the owners or lessees of any of said elevators or places designated as aforesaid, shall have the right and powers, and be subject to the obligations and penalties as therein provided, in regard to warehousemen, wharfingers or other persons. Act or 13 Junz 1874. Purd. 166. Sxor. 1. Whenever any goods, wares or merchandise shall have been, or shall hereafter be attached, by writ of foreign or other attachment, in the hands, posses- sion or custody of any warehouseman, wharfinger or other person, who shall have issued for the same, any warehouse-receipt or voucher, or any bill of lading or other receipt, when in transit by car or vessel, which warehouse-receipt, voucher, bill of lading or other receipt, shall have been negotiated and transferred by indorsement or delivery, as provided in the act to which this is a supplement, the holder of any such warehouse-receipt, voucher, bill of lading or other receipt, to whom the same shall have been transferred or delivered as aforesaid, although not named or summoned in, or served with such writ of attachment, shall never- theless be deemed and taken to all intents to be a garnishee of the said goods, wares or merchandise attached in the said writ, as if the same were in his hands or possession; and the name of the holder of such warehouse-receipt, voucher, bill of lading or other receipt shall, upon application to the court wherefrom such writ has issued, be added to the record of the action as a garnishee of the said goods, wares or merchandise; and thereupon the said court shall, upon the motion of the said garnishee, grant arule upon the plaintiff in such attach- ment, to appear before the court, at the time and place in such rule named, and there show cause why the attachment of such goods, wares or merchandise should not be dissolved, or the proceeds thereof, if the same shall have been sold by the order of the said court, paid to the holder of such warehouse-receipt, voucher, bill of lading or other receipt, upon his giving security as such garnishee, by recognisance and sufficient sureties to be approved by the court, or by one of the judges thereof in vacation, with condition that so much of the said goods, wares or merchandise, or of the proceeds thereof, after the sale of the whole or any part thereof, as shall remain after the settlement or payment thereout, of the amount of any lien upon the said goods, wares or merchandise created by the advance of money or credit by the said holder of such warehouse-receipt, voucher, bill of lading or other receipt, transferred or delivered as aforesaid, and also of all prior liens for storage, freight and other charges, shall be retained in the hands of the said gar- nishee, to answer, if the plaintiff shall have execution of any judgment of the effects of the defendant in the action attached as aforesaid, or to abide the further order of the said court. Sror. 2. Where goods, wares or merchandise shall be taken from the possession of any warehouseman, wharfinger, carrier or other bailee, by writ of attachment, replevin or other legal process, such warehouseman, wharfinger, carrier or other bailee shall not be liable therefor to the owner of such goods, wares or merchandise, or to the holder of any receipt, voucher or bill of lading given for the same; saving and reserving, however, to such owner or holder, all legal remedies for the recovery of the said goods, wares or merchandise from any person unlawfully detaining the eame, OF for the recovery of damages against any person unlawfully taking the same, Act oF 8 June 1881. Purd. 166. Szor. 1. Any carrier or other bailee of property, who has parted with its pos" session by mistake, to any person not entitled to the possession, may, after demand,’ maintain an action of replevin for the same, or if the property can not be found, an action of asswmpsit, or trover and conversion, against the party converting or removing it. In the case of replevin, if there was no fraud in obtaining such pos- session, the plaintiff shall first tender to the defendant the freight or other proper charges which have acerued, at the time of the demand of possession, 1 See 40 Penn. St. 448. BAILMENT. 295 ILI. Though the act of 1866 makes bills of lading, &c., negotiable by indorse- ment and delivery, it does not confer on them all the qualities of commercial paper ; the purchaser of a lost or stolen bill of lading acquires no title to the property! Under that act, a warehouse-receipt must be issued by the person in possession of the goods, in his own right; a mere servant or agent cannot issue such receipt? One who receives grain for his own use, as an immediate purchaser, or for future sale on account of the depositor, and not for the purpose of holding it in specie, for a compensation, until called for by the bailor, or his transferree, is not a warehouse- man within the meaning of the act.? The hiring or leasing of personal property, with an agreement that the title shall pass, when money is paid, is a bailment, and no title is acquired by one who receives it from the bailee, with notice of the facts. But whenever it appears from the contract between the parties, that the owner of personal property has transferred the possession thereof to another, reserving to himself the naked title, solely for the purpose of securing payment of the price agreed upon between them, the contract is necessarily a conditional sale, and not a bailment; and while it is perfectly good as between the parties themselves, it is worthless as to creditors and to bond fide purchasers from the transferree, without notice.® A bailee without reward is only responsible for gross negligence ;° but the care and diligence required is proportioned to the subject-matter of the contract." The burden of proving gross negligence rests on the depositor.’ The bailee is not liable for a loss by robbery, in the absence of evidence of such negligence ;° nor for a loss resulting from the act of God; nor where the property is taken from his posses- sion by the hand of the law, without fault, negligence or act on his part." Any damage happening to a chattel while in the hands of a bailee, without his misconduct, and while the chattel is employed in the use for which it was hired, must be sustained by the bailor.” So, one who hires a carriage and horses for a journey, is not liable to an injury to the horses from immoderate driving, if the owner send his own driver and the bailee do no act which occasions the injury." But if a bailee return the property in a damaged state, without explanation, the burden of proving the absence of negligence is upon him.“ If injury happen to property in the hands of a bailee, the interference of the bailor to remedy the evil, will not release the bailee from liability for the consequences of his negligence.’® A bailee to whom logs are delivered to be converted into boards, has a lien on them for his labor, independent of any special agreement, and he may maintain an action against an execution-creditor of the bailor, by whom they are taken out of his possession."* But a finder of lost property has no lien for expenses gratuitously incurred in taking care of it.” Since the passage of the act of 14th December 1863," a bailee may transfer the property, subject to his lien, and the purchaser will stand in his shoes; the rule of the common law is thereby abrogated.” An ordinary bailee for hire, in case of the non-delivery of goods intrusted to him, is liable therefor, in the absence of proof of ordinary diligence; the fact of non-delivery is prima facie evidence of want of ordinary care, and casts the burden of proof on the defendant.” The act of 25 May 1893 (Purd. 166), provides for petition to the common pleas, where a receipt has been lost or destroyed. 1101 TU. S. 557. 10 91 Penn. St. 310. 292 Penn. St. 518. 9 W.N. C. 54. 11 40 Ibid. 446. 8 41 Leg. Int. 288. 12 11 Johns. 21%. 1 Bouv. Inat. 405. 4 51 Penn. St. 26. 19 Ibid. 488. 105 Ibid. 103. 13 9 W. 556. 5 16 W.N. 0.275. And see 64 Penn. St. 499. 14 6 Penn. St. 417. 92 Ibid. 53. 95 Ibid. 508. 105 Ibid. 103. 33 % 7 W. 542. : Am. L. Reg. 506. 16 33 Penn. St. 151. 86 Ibid. 486. 6148. &R. 275. 15 Penn. St. 172. lt 4 W. 63. 16 Penn. St. 393. 779 Ibid. 106. 85 Ibs. 91. Ibid. 391. 100 16 Purd. 1059. U.S. 699. 19 58 Penn. St. 414. 8 89 Penn. St. 308. 94 Ibid. 409. 10 W.335. % 32 Ibid. 208. ® 81 Penn. St. 95. 15 [ 226 J Bankruptey. A Banxrupr is defined to be a broken and ruined trader; one whose table or. counter of business is broken up, bancus ruptus.' Or, in other words, “a person who has done or suffered some act to he done, which is by law declared an act of bankruptcy.’ It is generally considered synonymous with the term “ insolvent ;”” but this is not strictly correct, for a man may be insolvent, without being a bankrupt ; and a man may become a bankrupt, though abundantly able to pay his debts. The constitution vests in congress the power to pass uniform laws on the subject of bankruptcies throughout the United States. , But a state has authority to pass a bankrupt law, provided such law do not impair the obligation of contracts, and provided there be no act of congress in force to establish a uniform system of bank- ruptey, conflicting with such law.* A state bankrupt law is constitutional as to debts subsequently contracted between citizens of such state ;3> but a discharge under such law does not bar the rights of citizens of other states,® unless they come in and make themselves parties, by receiving a dividend.’ The effect of a discharge in bankruptcy is to extinguish a pre-existing debt, and not merely to bar the remedy thereon ;° but a promise, after the discharge, to pay a prior debt, is binding on the bankrupt.? A mere acknowledgment, however, though clear, distinct and unambiguous in its terms, is not sufficient to restore a debt which has been discharged under the operation of the bankrupt laws; nothing remains after the discharge but the moral obligation to pay, which, taken with the fact of the prior legal obligation, has been held to form a sufficient consideration for a new express promise ; in the nature of the case, however, there cannot arise a promise by implication, as the mere acknowledgment of a debt would not create any liability, if, in fact, no debt existed. The promise to restore a debt from which the debtor has been discharged, whether by proceedings in bankruptcy or other- wise, must be a clear, distinct and unequivocal promise to pay the specific debt, not the expression of a mere intention to pay; it must be without qualification or condition, and must contain all the essentials of a valid express agreement, except- ing only the element of a valid consideration.! The English rule that an assignee in bankruptcy is vested with the personal pro- perty of the bankrupt, in a foreign country, and which recognises the title of a foreign assignee to property in England, does not prevail in the United States." The bankrupt law of a foreign country cannot operate a legal transfer of property here.” But though the right of a foreign assignee in bankruptcy must, as respects assets situate in the United States, yield to the claims of domestic creditors, yet such foreign assignee may maintain suits in our courts, to collect the assets of the bank- rupt’s estate.* A discharge under a foreign bankrupt law is no bar to an action on a contract made in this country." 1 3 Story 453. i How. 295. 1 Wall. 223. Ibid. 234. 4 Ibid. 409. 21 Bouy. L. Dict. 188. 73 Pet. 411. 1 Wall. 223. 4 Ibid. 409. 3 1 Doug. 91. 4 Wheat. 194. Insolvency is 8 105 Penn. St. 78. the state of a person who, from any cause, 9 13 Ibid. 541. 5 Ibid. 369. 1 W.N. GC. 601 is unable to pay his debts, in the ordinary and 1° 105 Penn. St. 81. usual course of trade. 17 W. N.C, 289. ll 17 How. 322. : 4 Wheat. 122. There is now no such lawin 12 5 Cr. 289. 1 Brock. 62, ‘orce, 185 BIO. 0. 349. 5 W. & 8.9. 2 Ash. 485. ae 20 Penn. St. 440. 12 Wheat. 213. 1 Wall. 4 4 Wheat. 209. Pet. C. 0 8. 2 Mas. 162, : 40 Mo. 204, 6 12 Wheat. 213, 6 Pet, 348. 14 Ibid. 67. 5 [ 227 ] Banks, I. Acts of assembly relating to hanks and bank- III. Of cheoks. ing companies. IV. Liabilities of banks, II. Of bank-notes, I. Act of 16 Aprit 1850. Purd. 188. Seor. 20. If any president, cashier, director or any other officer or clerk of any such bank, shall fraudulently embezzle or appropriate to his own use, or to the use of any other person or persons, any money or other property belonging to said insti- tion, or left with the same as a special deposit or otherwise, he or they, upon conviction of such offence, shall be fined in any amount not less than the sum so appropriated or embezzled, and sentenced to. undergo imprisonment in the proper state penitentiary, to be kept in separate and solitary confinement at hard labor, for any term not exceeding five years: Provided, That this shall not prevent any person or persons aggrieved from pursuing his, her or their civil remedy against such person or persons. Szor. 22. It shall not be lawful for any such bank to issue and put in circulation any bill or note of said bank payable at any other place than at said bank, or other- wise than payable on demand, and of a denomination less than five dollars ;? and any violation of this section by any officer of any such bank, shall be a misde. meanor, punishable, upon conviction, by a fine of not less than five hundred dollars, and imprisonment in the jail of the proper county not less than one year. Sect. 26. Whenever any demand for specie shall be made by a note-holder of any bank, subject to the provisions of this act, it shall be the duty of the cashier or other officer of the bank upon whom such demand is made to pay one-fifth of the amount of such demand in American gold coin, if the same shall be requested by the note-holder making such demand: Provided, That the one-fifth of such demand be not less in amount than five dollars. Srct. 48. From and after the twenty-first day of August 1850, it shall not be lawful for any person or persons, corporation or body corporate, directly or indi- rectly to issue, pay out, pass, exchange, put in circulation, transfer or cause to be issued, paid out, passed, exchanged, circulated or transferred, any bank-note, note, bill, certificate, or any acknowledgment of indebtedness whatsoever, purporting to be a bank note, or of the nature, character or appearance of a bank note, or caleu- lated for circulation as a bank-note, issued, or purporting to be issued by any bank or incorporated company, or association of persons, not located in Pennsylvania, of a less denomination than five dollars ; every violation of the provisions of this section by any corporation or body corporate, shall subject such corporation or body cor- porate to the payment of five hundred dollars; and any violation of the provisions of this section by any public officer holding any office or appointment of honor or profit under the constitution and laws of this state, shall subject such officer to the payment of one hundred dollars; and any violation of this section by any other per: son, not being a public officer, shall subject such person to the payment of twenty- five dollars, one-half of which, in each case above mentioned, shall go to the informer, and the other half to the county in which the suit is brought, and may be sued for and recovered as debts of like amount are now by law recoverable, in any action of debt, in the name of the commonwealth of Pennsylvania, as well for the use of the proper county, as for the person suing. Szor. 49. In addition to the civil penalties imposed for a violation of the pro- visions of the last preceding section, every person who shall violate the provisions of that section, shall be taken and deemed to have committed a misdemeanor, and shall, upon conviction therof in any criminal court in this commonwealth, be fined in any sum not less than one dollar, and not more than one hundred dollars; and the several courts of quarter sessions shall, in their charges to the grand jury, call 1 By the act 17 April 1861, the banks were $1, $2 and $3, to an amount not exceeding 20 per authorized to issue notes of the denominations of cent. of their capital paid in. Purd. 191. 228 BANKS. their attention to this subject ; and it shall be the duty of the several grand juries to make presentment of any person within their respective counties, who may be guilty of a violation of the provisions of the last preceding section ; and it shall be the duty of the several constables and other peace officers within this commonwealth, to make information against any person guilty of such violation, and they shall be sworn so to do: Provided, That it shall not be necessary, in any civil suit or criminal prosecution under this section, and the last preceding section, to produce in evidence, the charter of any bank, or articles of association of any company, not located in this state. Aor 1 May 1861. Purd. 500. Szor. 36. Every president, director, cashier, teller, clerk or agent of any bank who shall embezzle, abstract or wilfully misapply any of the moneys, funds or credits of such bank, or shall, fraudulently, without authority from the directors, issue or put in circulation any of the notes of such bank, or shall, without such authority, fraudulently issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, sign any note, bond, draft, bill of exchange, mort- gage or other instrument of writing, or shall make any false entry on any book, report or statement of the bank, with an intent, in either case, to injure or defraud such bank, or to injure or defraud any other company, body corporate or politic, or any individual person, or to deceive any officer or agent appointed to inspect the affairs of any bank, shall be deemed guilty of a misdemeanor ; and upon conviction thereof, shall be confined in the penitentiary, at hard labor, not less than one, nor more than ten years. Aot 31 Marca 1860. Purd. 187. Suor. 64. If any cashier of any bank of this commonwealth shall engage directly or indirectly in the purchase or sale of stock, or in any other profession, occupation or calling, other than that of his duty as cashier, he shall be guilty of a misdemeanor, and, being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars. II. OF BANK-NOTES. BANK-NOTES are treated as money, or cash, in the ordinary course of transac. tions of business, by common consent, which gives them the credit and currency of money to every effectual purpose. A payment in current bank-notes discharges the debt, although, in consequence of the previous failure of the bank, of which both parties were ignorant, the notes were of no value at the time of payment. In delivering the opinion in the supreme court, in the case of Gray v. Donohue, Judge Sergeant remarks: ‘‘ No principle is better established, none more necessary to be maintained, than that bank-notes are not money in the legal sense of the word. They are not a legal tender as money, either in the ordinary transactions of business, or in the collection of debts by legal process. Coin struck at the mint, or author- ized by act of congress, are alone lawful money.’ When a person passes a bank-note, though he does not engage to be responsible for its payment at the bank, yet he virtually undertakes that it is what it purports to be; and if it proves to be forged, the consideration has failed, and he is account- able for the money.* Nor, if objected to, are bank-notes a valid tender; but, if not objected to, the tender is good.® The holder of bank-notes may insist upon payment in gold or silver coin, aud is not obliged to receive foreign gold or silver coin, or the bills of the bank, or any other bills, in payment, and is entitled to be paid their numerical value in specie, and cannot be compelled to take the value fixed upon them by the brokers and speculators.® It is not necessary to tender back a counterfeit bank-note, to author- ize a recovery of the consideration given for it.’ If a payment in bank-notes be proved without showing of what denomination, they will be presumed to have been of the lowest denomination in circulation? — 1 ] Binn. 457. 6 1 Ohio 222. 3 1W. &S. 92. 71 B. Monr. 195. See 13 S. & R. 319% 2 ; Tisch 16% Geen, Evid. 3 124, Be ai 2 Greenl. Evid. 3 129 a. Ibid. 3 255, BANKS. 229 In Martin v. Bank U. S.,* it was held, that a bank was bound to pay the amount of a bank-note, one-half of which is presented, on proof of the loss or destruction of the other half; or that the other half has by fraud or accident got out of the possession of the bond fide owner. So, in the Bank of Virginia v, Ward,? it was decided, that the bond fide owner of a bank-note, and holder of one-half, having transmitted the other half thereof by mail, which was stolen or lost, may demand payment from the bank of the whole note, on fully proving the loss, and giving a satisfactory indemnity to the bank. A certificate of deposit, payable to the order of the depositor, ondy on the return of the certificate, is not a negotiable instrument. III. Or CHECKS. Bank CHECKS, or drafts on banks, are instruments by means of which a creditor may assign to a third person, not originally party to the contract, the legal as well as equitable interest in a debt raised by it, so as to vest in such assignee a right of action against the original debtor. A check operates as an appropriation of the fund, from the time of its presentment, and extinguishes a debt due by the depositor to the bank, if drawn in payment.® But the holder of a check cannot maintain an action against the bank, though in funds, for a refusal to accept.® Checks are considered as bills of exchange, and the holder must use due diligence in presenting them for payment.’ Without proof of a due presentment, and prompt notice of dishovor, the holder of a check on a bank cannot resort to the drawer.® If, however, the drawer had no funds in the bank, at the time of drawing the check, presentment and notice may be dispensed with. But if the drawer had funds in the bank, at the time the check was drawn, the subsequent shifting of the balance will not take the case out of the general rule The indorser of a check, drawn for his accommodation, and who is bound to provide funds to meet it, is not entitled to notice of non-payment. The neglect to make due presentment of a check will postpone it to a subsequent attachment against the drawer. No days af grace are allowed on a post-dated check, drawn on a bank or banker ; nor on a check payable at a future day.* A check drawn by one person in favor of another, and paid to the latter, is pre- sumed to have been received on account of a debt shown to have existed at the time A check is prima facie evidence of payment; but this may be disproved.’ So of a paid check, drawn by the debtor’s wife, in the absence of any other trans- action to which it could be applied.* But a check payable to A. or bearer is not evidence of a payment to A.” Otherwise, if credited to A. on the books of the bank.* A check is not proof of payment, without showing that the drawer had funds to meet it.’ A paid check is not evidence of indebtedness.” A payment by check is good, if the bank would have paid the same, had it been presented on the day on which it was received, though the drawer failed, before it was presented.” A post-dated check is a negotiable instrument, and available in the hands of an indorser for value, notwithstanding a failure of consideration between the original parties, and though received in payment of an antecedent debt.” Delay in the presentation of a check does not discharge the drawer, unless he be damnified thereby; but he is entitled to notice of non-payment.” A check received from a customer is presumed to be a cash deposit.* If the drawer be not in funds to pay the amount of a check, it is the duty of the bank to pay whatever amount may be 14 W. 0. C. 253. 474, 6 Phila. 170. 1 Ibid. 176. 26 Munf. 166-9. 14 29 Penn. St. 128. 60 Ibid. 170. $6 W.& S. 227. 8 Ibid.,861. 28 Penn. St. 15 60 Ibid. 170. 6 Phila. 576. See2 W.N.C. 152, 396. 4 Whart. 226. 41H. BI. 602. 16 33 Penn. St. 235. 5 87 Penn. St. 55. See 103 Ibid. 326. 778. &R. 116. 6 100 Ibid. 23. 106 Ibid. 460. 10 Wall. 152. 18 4 W. 46. 107 Mass. 45. 19 8 Ibid. 304. 7 6 Cow. 490. 6 Wend. 445. 27 5.& R.116. 13 Penn. St.177. 29 Ibid. 8 31 Penn. St. 100. 128. 9 Ibid. 3 Phila. 54. 218 W.N. C. 102. -© Thid. 22 4 Whart. 252. See 103 Penn. St. 81. 1l 1 Phila, 205, 23 2 Phila. 111. 12 2 Miles 327, % % 62 Penn. St. 88. % Act 30 March 1875, Purd. 221, 70 Penn. St. 230 BARRATOR. to his credit, if the holder be willing to receive the same, and to endorse the pay- ment on the check.? IV. LIABILITIES OF BANKS. A bank is not liable for the loss of special deposits, either of cash or other articles, through the dishonesty of any of their officers, provided they take the same care of them that they do of their own specie. The bank is liable for all acts of their officers, which pertain to their official duty : for correct entries, for all mis- takes of their clerks, for not giving due notice on notes left for collection, &e., and for all their acts done within the scope of their authority. On general deposits, however, the bank is liable for all losses, however arising ; the privilege given by charter to discount on moneys deposited applying to general deposits only.’ But the bank is not chargeable with any geheral deposits made with an officer who is not the one specially authorized ; as to a book-keeper, for instance, unless the money actually comes into the coffers of the bank, or the book-keeper is then acting for the teller, in his absence.* A bank which receives a note for collection, and when it is over due, places it in the hands of a notary, in the usual course, is not liable for the neglect of the notary to give notice to an indorser. A note had been deposited by the holder in a bank for collection; when it fell due and remained unpaid, it was placed as usual in the hands of the bank’s notary, whose clerk called at the store of G., the last indorser, to inquire for the place of residence of C., the first indorser; the wife of G., who was in the store, told the clerk that C. resided at a particular place, which was in fact the place of business of C.’s son; notice was left at that place, and G. was informed of his wife’s direction as to the place of residence of C.; the note was renewed by agreement between the parties, and when it again fell due, the notary’s clerk again left a notice at the place of business of C.’s son, supposing that it was the store of C., by which mistake C. was discharged: held, that neither the bank, nor its agent, the notary, was liable to the holder of the note for the consequences of the omission to give notice to the indorser.® A bank is responsible for the money of depositor, notwithstanding a fraud perpe- trated by its officers in inducing him to accept their certificate of deposit as that of the bank.® If asavings-bank pay out money on a forged order, without requiring compliance with a by-law, printed in the depositor’s pass-book, such payment is in its own wrong, though the pass-book was produced at the time.’ Otherwise, if such payment were made in strict compliance with the by-law.® arrator, Aot 31 Marcu 1860. Purd. 478. Szor. 9. If any person shall be proved and adjudged a common barrator, vexing others with unjust and vexatious suits,® he shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one hundred dollars, or undergo an imprisonment not exceeding one year or both, or either, at the discretion of the court.” A justice of the peace may be indicted as a common barrator for exciting prose- cutions for offences ; and it is not a sufficient defence that the prosecutions were not groundless, if he excited them with a view of exacting fees for afterwards suppress- ing them." The party must be a common barrator, not in-one or two, but in many instances.” The proof must show at least three instances of offending. 19 Phila, 522. Co. R. 109. 217 Mass. 479. This is not, in all cases, the 6 93 Penn. St. 376. Ibid. 393. measure of due diligence; the bank is held to T 91 Ibid. 315. care and diligence proportiuned to the subject 8 92 Ibid. 134, matter of the contract. 79 Penn, St. 106. 22 ® See 3 L. Law Rev. 139. Pitts. L. J.157. See 62 Penn. St. 47. 72 Thid. 1 See 8 Co. 36 b. Co. Litt. 368. 4 Bl. Com. 134 471. 85 Ibid. 391. Ibid. 91. 106 U.S, 609. {1 ] Bailey 379. See 2 Cr. C. C. 60 3°17 Mass. 479. Bara Ge. : 44 Johns, 382, 5 4 Whart. 105. 1 M.173. And see 1 Che [ 231 ] Beneficial Societies. A BENEFICIAL SOCIETY is an association supported by subscription for the mutual relief of the members or their wives, children, relatives or other nominees, against casualties, such as sickness, old age, widowhood, &c. Such societies are now incorporated under the act of 6th April 1893.1 But the act of 28th April 1876, provides, that the individual members of unincorporated societies shall not be individually liable for the payment of periodical or funeral benefits, or other liabilities of the organization, which shall be payable only out of the treasury thereof? Such societies are exempted from the provisions of the acts of 1876 and 1883, relating to insurance companies.* A beneficial society incorporated by another state, is not liable for the penalty imposed on foreign insurance companies for trans- acting business in this state, without authority of law. As a general rule, a member of such society is entitled to relief only from the date of his application, not from the time his sickness or disability accrued. But no action will lie to compel payment of the weekly benefits; the society does not consent to expose itself to the costs and vexation of an action for every weekly pittance that may be in arrear. The only remedy, in such case, is by writ of mandamus.§ The charters of such societies generally provide for the expulsion of a member as a punishment for certain acts contrary to his duty as a corporator, and it is the exercise of this power that gives rise to most of the questions that come before the courts. When the charter provides for an offence, directs the mode of proceed- ing, and authorizes the society, on conviction of a member, to expel him, this expulsion, if the proceedings are not irregular, is conclusive, and cannot be inquired into collaterally by the courts.’ But if there be any irregularity in the proceed- ings, the courts will interfere by mandamus, and compel the society to restore the party to all his rights as a member.® It is irregular, to expel a member without giving him an opportunity of being heard in his defence, before the society at large; he ought not to be expelled on the report of'a committee of investigation.® The return to a mandamus must show that the party had notice to appear and defend himself, that an assembly of the proper persons was duly held, the proceedings before them, a conviction of the offence, and an actual amotion by them.” In case of the illegal expulsion of a member, he is entitled to recover damages according to the extent of the injury." And for the purpose of fixing the amount of his damages, he may show that, since his expulsion, he has been in a condition that entitled him to the aid of the society, under its constitution and by-laws.” A by-law which provides that the widow of a deceased member shall receive a certain sum from the funds of the society, provided his death were not caused by intemperance, is a reasonable one. And so is one suspending the payment of weekly benefits to sick members, unless there be a certain amount in the treasury.” The fund payable on the death of a member goes to his children, if there be no widow; it is not assets for the payment of debts,"° But a wife who has separated herself from her husband for several years is not entitled to the allowance for funeral expenses. Where a charter provides, that a member may make a new direction of the fund payable at his decease, such application thereof can only be made in the form prescribed.” 1 Purd. 215, See the acts of 6 April 1893, Ibid. of equity will restore a member who has been 217, 23 May 1891, and 24 May 1893, Ibid. 219, illegatly expelled. 1 Del. %o. R. 317, az to subordinate lodges and payment of bene- 915 Penn. St. 251. 10 Daly 262. fits. 10 [bid. §Tbid. 219. 11 20 Ibid, 425. 8 Ibid. 1053, 1054. = ees 494 Penn. St. 481. id. ‘ 53 Wo 8, 218. 14 92 Ibid. 510. And see 93 Ibid. 277. 6 2 Whart. 313. If the society be unincorpo- 15 92 Ibid. 69. rated, a bill of equity will lie. 8 W. N.C. 417. 16 82 Ibid. 166. And see 35 Leg. Int. 28. 1792 Ibid. 50. See 2 Chest. Co. R. 47. 78: 78 W.&S., 247. Penn. St. 133. 6 W. N.C. 496, 850 Penn. St. 107, 15 Ibid. 251. A court [ 232 J Bible, Family. © A LrarF extracted from a family bible, containing entries of births and deaths of children, sworn to by some of the children, is good evidence. aoe In an action against a justice of the peace bya parent, to recover the penalty for marrying his minor son, the entry in the family bible of the son’s birth, proved by the oath of the plaintiff, is competent evidence of the minority of the son. ; But although the entry in a family bible is admissible to prove the date of a birth, it is secondary evidence; and its admissibility for such purpose is subject to the gene- ral rule, that primary evidence must be adduced, if it can be obtained. : It cannot be received where the person who made the entry is present in court, or within reach of process.‘ Bicycles. ICYCLES, tricycles and all vehicles propelled by hand or foot, and all persons by ia bicycles, Eravaled and such other vehicles are used, ridden or propelled upon the public highways of this state, shall be entitled to the same rights and subject to the same restrictions, in the use thereof, as are prescribed by law in the cases of person using carriages drawn by horses.® Biqamy. IF ANY PERSON shall have two wives or two husbands at one and the same time, he or she shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate and solitary confinement at labor, not exceeding two years, and the second marriage shall be void: Provided, That if any husband or wife, upon any false Tumor, in appearance well founded, of the death of the other (when such other has been absent for two whole years), hath married, or shall matry again, he or she shall not be liable to the penalties of fine and imprisonment imposed by this act.® If any man or woman being unmarried, shall knowingly marry the husband or wife of another person, such man or woman shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment by separate or soli- tary confinement at labor not exceeding two years.” In a prosecution for bigamy, the confession of the defendant is adequate evidence of the first marriage.2 On an indictment for bigamy, an actual marriage must be proved ; reputation and cohabitation are not sufficient.’ The second wife is a compe- tent witness either for or against the prisoner. To bring a case within the proviso to the 34th section of the act of 31st March 1860, there must be a general report, that the husband or wife died at some particular place, was shipwrecked, or lost his or her life in some way which the report specifies? To give jurisdiction to our courts, the second marrriage, which constitutes the offence, must have been contracted in Pennsylvania.” So, if, ina foreign country, a man marries a second wife in the lifetime of his first, and after the death of his first wife, but the second living, marries a third time in this state, the case is not within the statute; because the second marriage was simply void.!8 The offence of bigamy is not a felony; it ‘3 but a misdemeanor.'4 ‘2 Dall. 116. 1.15. officer had no authority to perform the marriage 710 W. 82. 1 Greenl. Evid. 2 104, ceremony. 8 L. Bar, 57. 5 23 Texas 252. 102 Tred. 346, 1 East, P.C. 469. See 15 Cox “1 McCord 165. 3 Wend. 376. C. C. 328, 5 Act 23 April 1889, Purd. 220, 112 Wh. Cr. Cas. 79. See 12 Cox C. C. 237. 8 Act 31 March 1860 2 34. Purd. 478, 1) Whart. Cr. L, 2 2627. T Ibid. 2 35. 13.2 Park. 195. And see 27 Hun. 310. 81 Ash, 272. 3 Brewst. 338, 10 Phila, 209. M4 2 Pars. 453. 1 Phila, 77. See 12 Cox 0.0. 97 Greenl. 58. But itis no defence, that the 193, : * [ 233 ] Bills of Exchange. I. Nature of a bill of exchange. V. Presentment for payment. II. Transfer of bills of exchange. VI. Notice of dishonor. TIT. Acceptance of a bill. VII. Actions on bills of exchange. IV. Days of grace. VITI. Damages on protested bills. I. NATURE OF A BILL OF EXCHANGE. A BILL OF EXCHANGE is an open letter of request addressed by one person to a second, desiring him to pay a sum of money to a third, or to any other to whom that third person shall order it to be paid, or it may be made payable to bearer.t The person who makes the bill is called the drawer, he to whom it is addressed the drawee, and when he undertakes to pay the amount, he is then called the acceptor. The person to whom it is ordered to be paid is called the payee, and if he appoint another to receive the money, that other is called the indorsee, as the payee is with respect to him the indorser; any one who happens, for the time, to be in possession of the bill is called the holder of it. The time at which the payment is limited to be made is various, according to the circumstances of the parties, and the distance of their respective residence. Some- times the amount is mdde payable at sight, sometimes at so many days after sight, at other times at a certain distance from the date. Usance is the time of one, two or three months after the date of the bill, according to the custom of the places between which the exchanges run, and the nature of which must therefore be shown and averred in a declaration on such a bill. Double or treble usance is double or treble the usual time; and half usance is half the time. Where the time of payment is limited by months, it must be computed by calendar, not lunar months; and where one month is longer than the succeeding one, it is a rule not to go in the computation into a third. Thus, on a bill dated the 28th, 29th, 30th or 31st of January, and payable one month after date, the time expires on the 28th of February, in common years, and in the three latter cases in leap-year on the 29th (to which are to be added the days of grace). Where a bill is payable at so many days after sight or from the date, the day of presentment, or of the date, is excluded. Thus, where a bill, payable ten days after sight, is presented on the first day of a month, the ten days expire on the eleventh: where it is dated the first, and payable twenty days after date, these expire on the twenty- first. Bills of exchange are foreign or inland. Foreign, when the drawer resides in one country and the drawee in another. Inland, when both the drawer and the drawee reside in the same kingdom But a bill drawn in one of the United States upon a person in another of the United States, is a foreign and not an inland bill of exchange, and subject to all the law of evidence and damage of foreign bills.‘ It is not essential to the validity of a bill of exchange that it be in form nego- tiable; nor that it should contain the words “ for value received.”” If it be fer the absolute payment of money, at all events, it will not invalidate it, if the fund on account of which it is drawn be named as a means whereby the drawee is to be indemnified ® . By the act of 5th April 1849, § 11, it is provided that bills of exchange, &e., made payable with the current rate of exchange, or in current funds, or with such like qualifications superadded, shall be deemed negotiable by indorsement, and the indorsees may recover thereon in their own names.® 1 1 Bouv. Inst. 353, 456. See 2 Brewst. 481. 6 2 Pet. 586. 10 Ibid. 579. 12 Ibid. 54, 6 2 Whart. 233. 10 Penn. St. 28. Whart. 414. 21 Ld. Raym. 281. 2 Str. 829. 5 31 Penn. St. 506. 5 Chitty on Bills 9. § Purd. 220. ” 234 BILLS OF EXCHANGE. II. TRANSFER OF BILLS OF EXCHANGE, In the case of a bill payable to A., for the use of B., the right of transfer is only in A., because b. has only an equitable and not a legal interest.’ ; A bill of exchange may be drawn by an agent, so also it may be indorsed by a person acting in that capacity—in which case he must expressly indorse as agent, as “ E. F. per proc. A. B.,” or he may write the name of his principal.” A qualified indorsement may be thus: “I hereby indorse, assign and transfer my right and interest in this bill to C. D. or order, but with this express condition, that I shall not be liable to the said C.D., or any holder, for the acceptance or payment of such bill, A. B.;” or the form may be, as in France, by the indorser writing his name, and subscribing, ‘‘ without recourse tome.” ; The indorsee of over-due paper takes it exelusively on the credit of the indorser, and subject, even without proof of mala fides [bad faith], to all the intrinsic con- siderations that would affect it between the original parties; but where there is no direct evidence of the time of transfer, the presumption is, that it was made in the usual course of commercial business, and consequently, before the day of payment.’ The presumption is, that the indorsee of negotiable paper received it bond fide, in due course of business, and for a valuable consideration. To put him to the proof of his title, and the consideration paid for it, the defendant must make out a prima facie case, that it was obtained by undue means, as by fraud, felony or force, or that it was lost and afterwards put in circulation.* If the drawee of a bill, who has not accepted, discount it for the payee, he acquires the right of an indorsee for value, and may sue the drawer and indorser, in case of its dishonor at maturity.® III. AccEPTANCE OF A BILL. Acceptance, in its ordinary signification, is an engagement by the drawee, to pay the bill, when due, in money.® If one accept a forged bill, he is bound in law to ay it.7 The acceptor of a bill of exchange is not to be admitted to vary the terms of his acceptance, by parol evidence.* Where a bill is accepted “ payable when in funds,” the burden is upon the plaintiff to show that the acceptors were in funds.® “The acceptor of a bill is to be considered as the principal debtor, and the other parties as sureties only; the holder, therefore, who is the creditor, ought not so to negotiate with the acceptor, as to prejudice the remaining parties to the bill. If a creditor give time to the principal debtor, the collateral securities are discharged, both in law and equity.””° If the holder of a bill compound with, and discharge the acceptor, he cannot afterwards resort to the other parties. But merely receiving partial payments from the acceptor, without. releasing him, does not affect the liability of the other parties.” The act of 10th May 1881 provides, that no person, within this state, shall be charged as an acceptor, on a bill of exchange, draft or order drawn for the pay- ment of money, exceeding twenty dollars, unless his acceptance shall be in writing, signed by himself, or his lawful agent.!? IV. Days or GRAOE. A custom has obtained, among merchants, that a person to whom a bill is ad- dressed, shall be allowed a few days for payment beyond the term mentioned in the bill, called days of grace. In Great Britain and Ireland (and in the United States of America), three days are given; in other places more. If the last of these three days happen to be Sunday, the bill is be paid on Saturday. These days of grace are not allowed on bills or notes payable on demand.® It is provided by the act 21st May 1857, that all drafts and bills of exchange 1 Chitty on Bills 123. 8 ? Ibid. 132. 9 ia ee 6 Penn. St. 164, 10 3 Bos 4 29 Ibid. 365. 43 Ibid. 137. wena 5 40 Ibid. 186, 14 Purd. 221. 8 Byles on Bills 148. 13 Byles on Bills 162. 1 4 Dall. 235, BILLS OF EXCHANGE, 235 drawn at sight, shall be and become due and payable on presentation, without grace, and shall and may, if dishonored, be protested on and immediately after such pre- sentation.’ And the act 30th March 1875 provides, that days of grace shall be allowed upon all pills of exchange, drafts, promissory notes, or other instruments negotiable by the laws of this commonwealth, excepting only bills of exchange and drafts drawn at sight, and checks drawn upon banks and bankers, whether payable upon presenta- tion, or upon some day or time subsequent to the date of issue.” The act 31st May 1893,5 designates the following holidays: New Year's day, Wash- ington’s birthday, Good Friday, Decoration or Memorial day, Fourth of July, Labor day, Fall Election day, Thanksgiving day and Christmas day; and every Saturday afternoon is declared a legal half:holiday. The act 23d May 1893,* designates the Spring Election day as a legal half-holiday. All bills, &., presentable on said days are made payable on the next succeeding business day, except those falling due on Saturday, which are payable before noon of that day, a protest cannot be had until the next business day. When New Year’s day, Washington's birthday, Fourth of July or Christmas day fall on Sunday, the following Monday is declared a public holiday; but when Decoration day falls on Sunday, the previous Saturday is declared a legal holiday. Bills falling due on Sunday are made payable on the next business day. V. PRESENTMENT FOR PAYMENT. Payment of a bill of exchange must be demanded on the day of maturity, at the place to which it isjddressed. And demand at such place is sufficient to found a notice of dishonor ih the other parties, unless, perhaps, when the holder knows the true place of business of the acceptor, in time to present it there.® A bill of exchange, in the absence of anything to indicate a different place, will be presumed to be addressed to the drawee at his residence, or place of business.® It is provided by the act of 21st May 1857, that the presentment for payment of any bill or bills of exchange, made or to be made elsewhere than in this common- wealth, at an office or house referred to only in the margin of the bill, or below the name of the drawee, shall not be so construed as to charge the indorsers for non-pay- ment, unless such office or house was, at the date of the bill, the actual place of busi- ness or residence of the drawee, or is distinctly expressed as such in the said reference, or unless it appear by the certificate of protest that upon diligent inquiry the place of business or residence of such drawee could not be found.’ The holder is entitled to a reasonable time in which to present it for payment ; what is such reasonable time must depend upon the circumstances of the case.® VI. NoricE oF DISHONOR. The holder of a bill of exchange must use reasonable diligence to ascertain the resi- dence of the drawer, for the purpose of giving him notice of its dishonor. It is not sufficient to look for the drawer at the place where the bill is dated, if his residence is elsewhere. Notice left with the family of a seafaring man, during his absence at sea, is sufficient.® : Notice of protest is not required to render a firm liable on an endorsement, where all the members of the firm are members of the house which drew the bill.” The holder of a bill of exchange is not obliged to notify all the ‘parties toit. Itis sufficient to notify the party he intends to hold liable. And each indorser has an entire day to give notice to his predecessor on the bill.* Notice of dishonor sent to the place of date is sufficient, unless the holder knows that the date does not truly indicate the residence. The rule seems to be, that if the residence be shown to be elsewhere in the same state, due diligence to ascer- 1 Paord. is 7 Purd. 221. ste / 8 84 Penn. St. 464. 3 Purd. 986 95 Binn. 541. 5 Penn. St. 178. 4 Ibid. 987. 10 3 Penn. St. 399. 5 27 Penn. St. 249. 30 Ibid. 139. 11 30 Ibid. 129. 6 Thid. 236 BILLS OF EXCHANGE, tain it must be proved, and that notice was sent accordingly, unless the removal took place after the drawing of the bill.’ A A drawer, without funds, or reasonable expectation thereof, is not entitled to notice of dishonor.? : VII. AoTrons ON BILLS OF EXOHANGE. The holder of negotiable paper may sue on it in his own name, although but an agent or trustee for others. An accommodation acceptor, paying a bill, for which no funds have been provided, can recover from the drawer, for the law implies a contract to indemnify.* It is no defence to a bill in the hands of an indorsee, that the consideration has failed as between the original parties.' It is no objection to an action by the drawer against the acceptor of a bill, that it has not been indorsed by the payee. The onus of showing that an alteration in a material part of a negotiable instru- ment was lawfully made, is on the holder. And where the place of payment is in a different handwriting from the body of the instrument, there is a presumption of alteration.” Any material alteration of commercial paper, unaccounted for by the holder, is fatal to a recovery upon it. An indorsee takes an altered bill with all its imperfections, and is bound to explain them; if the alteration be apparent, and uuexplained, the bill cannot be received in evidence.® The maker of negotiable paper is always presumed, in the absence of evidence, to have issued it clear of all blemishes, erasures and alterations, whether of the date or body of the instrument; and the burden of showing that it was defective, when issued, is upon the holder, even though the alteration be beneficial to the maker.” Whenever any bill of exchange, &., shall be negotiated or paid, and the sig- natures of any of the parties shall have been forged, the indorsee or payee may recover back from the previous party the amount so paid for the same, with lawful interest, from demand of repayment." This act was only declaratory of the existing law. Notice of the forgery within a reasonable time after its discovery, and an offer to return the bill, are necessary to the maintenance of an action for the recovery of the consideration paid, unless waived by the defendant, or the bill be shown to possess no value.” If the holder of a bill discharge a party who is liable to pay it, he thereby dis- charges all other parties whose liability was subsequent. But this effect is not produced by the holder’s discharging a party who would not be liable to the other parties, though prior to them.'® VIII. DAMAGES ON PROTESTED BILLs. Whenever any bill of exchange, to be drawn or indorsed after the 1st day of August 1850, within this commonwealth, upon any person or persons, or body cor- porate, of or in any other state, territory or place, shall be returned for non-acceptance or non-payment, with a legal protest, the person or persons to whom the same shall or may be payable, shall be entitled to recover and receive of and from the drawer or drawers, or the indorser or indorsers of such bill of exchange, the damages here- inafter specified, over and above the principal sum for which such bill of exchange shail have been drawn, and the charges of protest, together with lawful interest on the amount of such principal sum, damages and charges of protest from the time at which notice of such protest shall have been given, and the payment of said principal sum and damages and charges of protest demanded, that is to say: if such bill shall have been drawn upon any person or persons, or body corporate, of or in any of the United States or territories thereof, excepting Upper and Lower : 2 nae 249, : en St. 186. 19 Ibid. 178. 27 Ibid, 244. i id, 259, 8 52 Penn. St. 393. 10 32 Thid. 423. 4 44 Ibid. 356, 1 Act 5 April 1849. Purd, 222. 5 54 Ibid. 398. 12 30 Penn. St, 145, 527. 6 7 Ibid. 527. 8 11Mass, 85. 7 9 Ibid. 186, BONDS. . 237 California, New Mexico and Oregon, five per cent. upon such principal eum; and if upon Upper or Lower California, New Mexico or Oregon, ten per cent. upon such principal sum; and if upon China, India or other parts of Asia, Africa or islands in the Pacific Ocean, twenty per cent. upon such principal sum; and if upon Mexico, the Spanish Main, West Indies or other Atlantic islands, east coast of South America, Great Britain or other places in Europe, ten per cent. upon such principal sum ; and if upon places on the west coast of South America, fifteen per cent. upon such principal sum; and if upon any other part of the world, ten per cent. upon such principal sum. The damages which by this act are to be recovered upon any bill of exchange, shall be in lieu of interest and all other charges, except the charges of protest, to the time when notice of the protest and demand of payment shall have been given and made as aforesaid; and the amount of such bill and of the damages payable thereon, as specified in this act, shall be ascertained and determined by the rate of exchange, or value of the money or currency mentioned in such bill, at the time of notice of protest and demand of payment as before mentioned.” On a bill drawn in another state, the Jex loct governs ; and, in such case it is not necessary that the bill be returned to the place where drawn, to entitle the holder to damages. Damages are not recoverable from the acceptor. By the law merchant, the acceptor of a bill of exchange is not liable for re-exchange, and our statute has regard only to drawers and indorsers* The damages may be recovered without being specially demanded in the declaration. - Damages on a foreign bill, protested for non-payment, are recoverable at the rate of exchange at the time of presentment to the drawer for payment, accompanied with notice of protest, and not at the rate at the time when notice of protest was received by the drawer, without a presentment of the bill® Damages are not recoverable, if the bill was neither paid nor received in satisfaction of a precedent debt.’ If remitted at the risk of the debtor here, he is entitled to the damages, and not the foreign creditor. The damages allowed by the statute are a compen- sation for interest, damages and re-exchange; and the holder may recover the amount of the bill aud damages, with interest on the whole from the date of rotest.? : A bill dated at Philadelphia, signed here in blank, and sent abroad to be filled up and there negotiated, is within the act.’ Bonds. I. Definition and nature of a bond. II. Assignment of bonds. I. DEFINITION AND NATURE OF A BOND. A Bonp or obligation is a deed whereby the obligor obliges himself, his heirs, executors and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one; but there is generally a condition added, that, if the obligor do some particular act, the obligation shall be void, or else shall remain in full force, as the repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one- half of the penal sum specified in the bond. In case this condition be not performed, the bond becomes forfeited, and charges the obligor while living, and his estate after his decease. Nis If the condition of a bond be impossible, at the time of making it, or be to doa thing contrary to some rule of law, that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single and uncon- ditional ; for it is the folly of the obligor to enter into such an obligation from which 1 Act 13 May 1850 2 6. Purd. 221. 62M. 257. Butsee 1 Y.204. 3 W. CO. C. 125, 2 Act 30 March 1821 @ 2. Ibid. 71 Dall. 261. 4 ¥. 19. 84 Y. 19. 8 4 Dall. 157. & 8 W. 545. 9 3 Penn. St. 474, 482, 5 3 Penn. St. 474, 482 10 23 Ibid. 137. 938 : BONDS. he can never be released. If it be to do a thing that is malwm in se [an offence at common law], the obligation itself is void: for the whole is an unlawful contract, and the obligor shall take no advantage from such transaction.’ If the condition of a bond be to do a thing which is contrary to a rule of law merely, and not malum in se, the bond is single? If the condition of a money bond fix no time of payment, it is payable forthwith.’ . ; ‘A lapse of twenty years creates a presumption of payment, if no interest has been paid in the mean time; but, if the period be shorter than twenty years, the pre- sumption must be supported by circumstances.* A bond is not avoided by tearing off the seal by the obligor, fraudulently or inadvertently, without the assent of the obligee.® So, of a stranger tearing off the seal of a deed of land.® IJ. AssSIGNMENT OF BONDS. All bonds, specialties and notes in writing, made or to be made, and signed by any person or persons, whereby such person or persons is or are obliged or doth or shall promise to pay to any other person or persons, his, her or their order or assigns, any sum or sums of money, mentioned in such bonds, specialties, note or notes, may by the person or persons to whom the same is or are made payable be assigned, indorsed and made over to such person or persons as shall think fit to accept thereof.’ The person or persons to whom such bonds, specialties or notes are or shall be assigned, indorsed or made over, their factors, agents, executors or assigns, may at his, her or their pleasure again assign, indorse and make over the same, and so doties quoties.® It shall and may be lawful for the person or persons to whom the said bonds, specialties or notes are assigned, indorsed or made over as aforesaid, in his, her or their own name or names, to commence and prosecute his, her or their actions at law, for recovery of the money mentioned in such bonds, specialties or notes, or so much thereof as shall appear to be due at the time of such assignment, in like man- ner as the person or perscns to whom the same was or were made payable might or could have done.® In every such action, the plaintiff or plaintiffs shall recover his, her or their damages and costs of suit; and if such plaintiff or plaintiffs shall be nonsuited, or a verdict be given against him, her or them, the defendant or defendants shall recover his, her or their costs against the plaintiff or plaintiffs.” Every such plaintiff or plaintiffs, defendant or defendants, respectively recovering, may sue out execution for such damages and costs, in the like manner as is usual for damages and costs in other cases." No person or persons shall have power, by virtue of this act, to make, issue or give out any bonds, specialties or notes, by themselves or servants, than such as they might have made, issued and given out, if this act had never been made.!? All assignments made of bonds and specialties shall be under hand and seal before two or more credible witnesses * Provided, That it shall not be in the power of the assignors, after assignment made as aforesaid, to release any of the debts or sums of money really due by the said bonds, specialties or notes.™ The object of this act was to enable an assignee to maintain an action in his own name.” He takes subject to all the equities existing between the parties at the time of the assignment ;* and to payments made to the assignor before notice of the assignment.” But if the assignee, when about to take the assignment, call upon the obligee to inquire whether the whole money is due, and take the bond in consequence of his representations, or of his silence as to any defence, he will be 1 2 Bl Com. 274-5. 18 Act 28 J 2168. & R. 307, u Thid. een ea 89 Penn. St. 436. 16 1 Dall. 28. 1 Binn. 433n. 4S, & R. 177. «2 W. C. C. 323, 9S. & R. 379, 1¥, 344,584, 36 Penn. St. 108, € 2.Mas. 478 16 1 Dall. 28. 2 Ibid. 49. 2 ¥. 23. 1 Binn. ® 6 Cow. 746. ¢ 433 n. 2 Ibid.165. 5 Ibid. 232. 48. & R. 177. a Act 28 May 1715 3 1. Purd. 224. 11 Ibid. 75. 17 Ibid. 287. 1 P. & W. 257. 2 8 Ibid. 2 2. Thid. 245. 8 W. & 8. 318, 36 Ponn. St. 108. 16 : Tid. 3. W.N. C. 421. Wo Ibid. 4 4, 148, &R.175. 9 Ibid. 74. 5 W. & 8. 219. : a : 1 Penn. St. 266. 4 W. 0. C. 585. BOOKS, &c. 939 protected.’ The assignee of an assignee is subject to the same rule? The equity, however, which will affect an assignee for value only extends to want of consider- ation and defalcation, and not to collateral agreements between the parties ;* nor to secret equities residing in strangers. And an equitable assignee of a bond given by an innocent purchaser will be protected against an unrecorded mort- gage. A covenant of guaranty indorsed on a bond does not pass by an assignment of it.® The covenant implied from the assignment of a bond is not a guarantee, but that the assignee should receive the money from the obligor to his own use, and if the obligee should receive it, then the assignor would be answerable over for it.” Where a bond or other specialty is assigned in the mode prescribed by the act of 1715, that is to say, by an instrument under seal, attested by two or more witnesses, the legal title vests in the assignee, who must bring suit thereon in his own name. On the contrary, if the directions of the statute be not pursued, as, for example, if the assignment be not under seal, or although under seal, if there be but a single witness, in such case, the assignment is termed an equitable one, and suit must be brought in the name of the assignor for the use of the assignee. The act of 1715 has no application to a suit so brought.® Coupon bonds, payable to bearer, issued by incorporated companies, are negotiable instruments, and pass by delivery.® But, in this state, the coupon bonds of muni- cipal corporations issued in pursuance of a special authority conferred by statute, are not negotiable. In this doctrine, however, it is admitted that the courts of Pennsylvania stand alone.” Books, Xe., Required by a Magistrate. I. Of the books and forms required. III. The magistrate’s law library. II. Ruling and paging the dockets, and index- ing. I. One of the first considerations which should present itself to the mind of an alderman or justice of the peace, on the receipt of his commission, is, how he shall best qualify himself to discharge the duties which have thus been devolved upon him. In the first place, what books does he require? He should, without a doubt, have a copy of a digest of the laws of the state, and a copy of the best guide for justices of the peace which he can procure. These books appear to be indispensable. Having obtained and carefully read these books, let him get from the most experienced justice near him, a copy of each of the blank forms he shall want, and compare them with the forms which he will find printed in his Justice’s Guide. Having ascertained the most approved forms, and made the necessary alterations as to the name and residence of the justice, and such other alterations, if any, as he may think proper, let him send and have them printed; or perhaps, in the county town, he may purchase them, ready printed, in such quantities as he shall be‘advised he may require. Printers in county towns would do the public a service and, it is hoped, promote their own interests, by always keeping in their offices the most approved forms of magistrates’ blanks. A justice should purchase two dockets: one for civil suits, and the other for criminal business. As to the 3 Y. 351. 3 Penn. St. 292. 8 W. 361. 1 Dall. 449. 19 Penn. St. 133. 4 Phila. 346. 44 Penn. St. 63. See 95 Ibid. 12 Y. 541. 1 Binn. 433. 5 Ibid. 234. 9S 2 & R.197. 16 Ibid. 18. 1 P.& W. 24,476. 2 & Tbid. 245. 3 Whart. 275. 5 W. 151. But he 7 must be an assignee for a valuable consideration. 4 Brewst. 151. 62. A clearing-house due-bill is negotiable. 40 21K, 227. Leg. Int. ge oe 398.& R.141. 1 P. & W. 260.. 8 W.& S. 73 Penn. St. 211. 318. 3 Penn. St. 294. 103 Ibid. 416. 10 37 Penn. St. 230. And see 33 Ibid. 239. 32 49 Penn. St. 399. 3 Gr. 281. Ibid. 230. 43 Ibid. 400. 240 BREAD AND FLOUR. manner in which the docket-entries shall be made, examples on all the subjects likely to come before him will hereafter be given. cat In a small book, provided for that purpose, or in the criminal docket, he should record the indentures of the apprentices he may bind, and the marriages he may solemnize, and note any other miscellaneous duties he may perform, to all which he should have copious and correct indexes. II. Let the dockets be paged and ruled; the lines at such distance from each other as your handwriting may require. On the left hand of each page let there be a perpendicular line drawn with red ink, about two.inches distant from the left hand edge of the page. The portion of the page thus set apart, on the left hand of the perpendicular line, to be considered as set apart for the names of the parties, the costs, &c.; the remainder of the page being appropriated to the docket-entries, Index your dockets frequently ; that is, in a small book or on a few pages, at the beginning or ending of the docket itself, alphabetically arranged ; put the name of the plaintiff and the defendant, together with the page of the docket on which the docket-entries, relating to that suit, may be found: thus—“ A.B. v. C. D., p. 76.” With such a guide, the justice may turn to the suit and give whatever information may be required, at a moment’s notice. III. The law books required by a magistrate, for the intelligent discharge of the important duties required of him, are few in number, but these should always be of the latest editions, so that he may be furnished with the most reliable guide in a path which, to him, is frequently an untrodden one. 1. In the first place, it is indispensable that he should possess Purdon’s Digest of the laws of Pennsylvania; this will give him the complete body of the statute law of the commonwealth, with the decisions explanatory of it. 2. The justice should have the present work, as a manual to be constantly referred to, when called upon to exercise his judicial function. 3. He should have a good Pennsylvania Form Book. The best of these are Dunlap’s Forms and Graydon’s Forms, either of which will answer his purpose. 4. A good work on Criminal Law is a most useful adjunct to the justice’s office. Wharton’s American Criminal Law is the latest and best work upon this subject, and no magistrate ought to be without it. With these books, the justice of the peace will be enabled, with ordinary care and attention, to discharge his duties to the satisfaction of the public and of his own conscience. If he desires to obtain a more extended knowledge of the law, he would do well to procure a copy of Black- stone’s Commentaries with Judge Sharswood’s notes, by a careful study of which he may become well grounded in the principles of the common law. Bread and Flour, [See ADULTERATION. ] I. Acts of assembly. II. Warrant against a baker for selling loaf bread. I. Aor 1 Aprin 1797. Purd. 262. Szor. 2, All loaf bread made for sale within this commonwealth, shall be sold by the pound avoirdupois; and every baker or other person offering the same for sale, shall keep at his or her house, or at such other place at which he or she shall at any time offer or expose for sale any such bread, sufficient scales and weights, law- fully regulated, for the purpose of weighing the same; and if any baker or other person shall sell or offer for sale any loaf bread, in any other manner, the contract respecting the same shall be void, and the person offending against this act shall, on conviction, forfeit and pay the sum of ten dollars for every such offence, one-half to the use of the informer, and the other half to the use of this common- wealth ; and it shall be the especial duty of the clerk of the market, in any place where such officer is appointed, to discover and prosecute all persons offending agalost this act.! - This act is stil in foree, 3 W. C. 0. 273. Its may, without difficulty, be carried into full opera- enactments are clearly for the public good; thew tian+ a hannte ie nffarad ta tha nrngaantar: nublia BREAD AND FLOUR. 241 Act 18 Maron 1775. Purd. 1294. Srct. 8. The clerks of the several markets within this province, now in ofgce, and all such clerks as shall hereafter be appointed, before they enter upon the execution of their office, shall take the following oath or affirmation, before some magistrate or justice of the city, borough or county wherein they shall reside, viz. : “ That he will well and truly, to the best of his skill and judgment, do and perform all things enjoined and required of him as clerk of the market, by the laws of this rrovince.” : Act 8 Aprit 1848. Pamph. 417. Sect. 1. It shall not be lawful for any person within the counties of Bucks, Montgomery, Philadelphia and Delaware, and the city of Philadelphia, to sell In- dian corn meal in any other way than by weight; and any person who shall sell Indian corn meal by measure, or in any other way than by weight, shall be liable, for each and every offence, to a fine of five dollars, which may be recovered before any alderman or justice of the peace, as sums of like amount are by law recoverable ; one-half whereof shall go to the informer, and the other half to the use of the city or county wherein such conviction takes place: Provided, That nothing herein contained shall be construed to prohibit the sale of Indian corn meal by the hogs- head, barrel or half-barrel, as is now provided for by the inspection laws of this commonwealth. II. WaRRANT AGAINST A BAKER FOR SELLING LOAF BREAD, &C. BERKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of H——, in the County of Berks, greeting : Wuereas, J. L., clerk of the market within the borough of H——, in the county of Berks, hath made information, on oath, before J. R., one of our justices of the peace in and for the said county, that G. G., of H—— aforesaid, baker, doth not keep at his house, in H aforesaid, where he offereth, or exposeth, loaf bread for sale, from time to time, sufficient scales and weights, lawfully regulated, for the purpose of weighing the same, contrary to the act of assembly in such case made and provided; you are, therefore, hereby commanded to take the said G. G., and bring him before the said J. R. forthwith, to answer the premises,-and further to be dealt with according to law. Witness the said J. R., at H—— aforesaid, the first day of September, in the year of our Lord one thousand eight hundred and eighty. J. R., Justice of the Peace. [szat.] When the defendant is brought before the magistrate, the witnesses should be examined, and if the charge be proved to the satisfaction of the justice, he should require bail for the appearance of the defendant, at the next court of quarter ses- sions, and if the bail be not given, the defendant should be committed. officers are named, whose “especial duty’ it is and powerful recommendations, this act has never made, enforced by oath or affirmation, “to dis- been carried into effect! Ought it not to he cover and prosecute all persons offending against enforced or repealed? this act”—yet, with all these adequate provisions 16 [ 242 ] Bribery. I. Definition of bribery. III. Provisions of the Penal Code. II. Constitutional provisions. IV. Corrupt solicitation. I. Brrpery is the receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to incline him to do a thing against the known rules of honesty and integrity.’ II. ConstITUTIONAL PROVISIONS. A member of the general assembly who shall solicit, demand or receive, or con- sent to receive, directly or indirectly, for himself or for another, from any company, corporation or person, any money, office, appointment, employment, testimonial, reward, thing of value or enjoyment, or of personal advantage, or promise thereof, for his vote or official influence, or for withholding the same, or with.an under- standing, expressed or implied, that his vote or official action shall be, in any way, influenced thereby ; or who shall solicit or demand any such money or other advan- tage, matter or thing aforesaid, for another, as the consideration of his vote or official influence, or for withholding the same, or shall give or withhold his vote or influence, in consideration of the payment or promise of such money, advantage, matter or thing to another—shall be held guilty of bribery, within the meaning of this constitution, and shall incur the disabilities provided thereby for said offence, and such additional punishment as is or shall be provided by law. Any person who shall, directly or indirectly, offer, give or promise, any money or thing of value, testimonial, privilege or personal advantage, to any executive or judi- cial officer, or member of the general assembly, to influence him in the performance of any of his public or official duties, shall be guilty of bribery, and be punished in such manner as shall be provided by law.® The offence of corrupt solicitation of members of the general assembly, or of public officers of the state, or of any municipal division thereof, and any occu- pation or practice or solicitation of such members or officers, to influence their mee action, shall be defined by law, and shall be punished by fine and imprison- ment. Any person may be compelled to testify, in any lawful investigation or judicial proceeding, against any person who may be charged with having committed the offence of bribery or corrupt solicitation, or practices of solicitation, and shall not be permitted to withhold his testimony, upon the ground that it may criminate him- self, or subject him to public infamy ; but such testimony shall not afterwards be used against him, in any judicial proceeding, except for perjury in giving such testimony ; and any person convicted of either of the offences aforesaid shall, as part of the punishment therefor, be disqualified from holding any office or position of honor, trust or profit in this commonwealth. III. Act 31 Marcu 1860. Purd, 479, Sxor. 48. If any person shall, directly or indirectly, or by means of and through any artful and dishonest device whatever, give or offer to give any money, goods or other present or reward, or give or make any promise, contract or agreement, for the payment, delivery or alienation of any money, goods or other bribe, in order to obtain or influence the vote, opinion, verdict, award, judgment, decree or behavior of any member of the general assembly, or any officer of this commonwealth, judge, Juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter or thing whatsoever, depending or which shall depend before him or them, such person shall be guilty of a misdemeanor, and on conviction, be 5 1 Hawk. P. C0. 168, 3 Const. art. III. 2 30. 4 Const. art. IIL. 3 20, Seo 01 Penn. St.493, 4 Ibid Bar eo” 11 Luz. L. Reg. 25. 8 Thid. § 32, BRIBERY. 943 sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment by separate or solitary confinement at labor, not exceeding one year. ,And the member of assembly, or officer, judge, juror, justice, referee or arbitrator, who shall accept or receive, or agree to accept or receive, such bribe, shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confine- ment at labor, not exceeding five years. Sect. 49. No witness shall be excused from testifying in any criminal proceeding, or in any investigation or inquiry before either branch of the general assembly, or any cowmittee thereof, touching his knowledge of the aforesaid crimes, under any pretence or allegation whatsoever ; .but the evidence so given, or the facts divulged by him, shall not be used against him in any prosecution under this act: Provided, That the accused shall not be convicted on the testimony of an accomplice, unless the same be corroborated by other evidence, or the circumstances of the case. Sect. 50. If any elector, authorized to vote at any public election, shall, directly or indirectly, accept or receive, from any person, any gift or reward in money, goods or other valuable thing, under an agreement or promise, express or implied, that such elector shall give his vote for any particular candidate or candidates at such election, or shall accept or receive the promise of any person that he shall thereafter receive any gift or reward in money, goods or other valuable thing, any office, appointment or employment, public or private, or any personal or pecuniary advantage whatsoever, under such an agreement or promise, express or implied, such elector shall be guilty of a misdemeanor, and shall, on conviction of either of the said offences, be sentenced to pay a fine not exceeding one hundred dollars, and undergo an imprisonment not exceeding six months. Szcr. 51. Any person who shall, directly or indirectly, give, or offer to give, any such gift or reward to any such elector, with the intent to induce him to vote for any particular candidate or candidates at such election, or shall, directly or indirectly, procure or agree to give any such gift or reward to such elector, with the intent aforesaid, or shall, with the intent to influence or intimidate such elector to give his vote for any particular candidate or candidates at such election, give, offer or promise to give, such elector any office, place, appointment or employment, or threaten such elector with dismissal or discharge from any office, place, appointment or employ- ment, public or private, then held by him, in case of his refusal to vote for any particular candidate or candidates at such election, the person so offending shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a five not exceeding five hundred dollars, and undergo an imprisonment not exceeding two years. IV. Act 29 Aprit 1874. Purd. 480. Sect. 1. Any person or persons who shall, directly or indirectly, by offer or pro- mise of money, office, appointment, employment, testimonial, or other thing of value, or who shall, by threats or intimidation, endeavor to influence any member of the general assembly, state, county, election, municipal or other public officer, in the discharge, performance or non-performance of any act, duty or obligation per- taining to such office, shall be guilty of the offence of corrupt solicitation, and liable to indictment for a misdemeanor ;! and on conviction thereof, shall be sen- tenced to pay a fine not exceeding one thousand dollars, and to undergo imprisonment not exceeding two years, at the discretion of the court. : Secr. 2. Any occupation or practice of solicitation of members of either house of the general assembly, or of public officers of the state, or of any municipal division thereof, to influence their official action, shall be deemed a misdemeanor, and any person convicted thereof shall be punished as provided by the preceding section: Provided, That any open address upon or explanation of any measure or question before either house of the general assembly, or any committee or member thereof, or before any municipal counsel, or board or committee thereof, or before any public officer, shall not be held to be solicitation, within the meaning of this section." 1 See act 9 May 1889, as to bribery at elections, and 8 June 1881, aa to bribery at primary elec- tions, Purd. 481. [ 244] Building Associations. I, Nature of building associations. TIL. Judicial decisions. II. Acts of assembly. I. A Burnpina Assocrarion is a society, incorporated or otherwise, composed entirely of one class of stockholders; and its assets or property is represented by stock. Its original capital is derived from the monthly instalments or dues paid on account of each share of stock by the holder thereof; which is generally one dollar for each share of the ultimate par value of $200, or in that proportion. And the chief sources of profit by means of which the association is enabled to work out the ultimate value of the shares, in a given number of years, is obtained from loaning the accumulated monthly instalments of dues and profits to such of the stockholders only as may, under the rules, borrow the same. A modification of this plan is of frequent occurrence, in the shape of serial asso- ciations, that is, associations which, though their duration is limited, instead of issuing all the stock, to the full extent allowed, at once, divide it up into series, and issue them successively; each class or series being thus treated, to some extent, as a separate association, distinct from the others, but with them sharing in the profits, This is specially authorized by the act of 1874. The act of 1874 provides for the incorporation of building and loan associations.! And inasmuch as the statute confers no privileges on any associations except those incorporated under its provisions, it is of the utmost importance that a charter of incorporation should in all cases be applied for. It is well settled, that no unin- corporated association can, in any court, recover more than the actual amount loaned, with interest, and that the taking of premiums by such associations is wholly illegal This caution is given, because in some cases, a few prominent members, desirous of obtaining the entire control of’ the affairs of an association, as trustees and officers, combine to prevent an application for a charter, and persuade their less intelligent fellow-members that such an act is entirely unnecessary. The act of 1879 has removed the disability of married women to become mem- bers of a building association. And where a married woman had purchased stock in, and obtained a loan from, a building association, prior to the passage of that act, and subsequently continued to pay monthly premiums on the loan, it was held, that she could not set up her previous disability.’ And prior to that act, a husband who had joined with his wife in a bond and morteage to the association, and who had received the full benefit of the loan, was held liable on his bond, though the wife was not bound* The fact that the principal in a contract is not liable thereon, by reason of her coverture, constitutes no defence, in an action against a surety who has become such in view of the principal’s disability.8 The executor of a deceased member is not ipso facto, a member of the association; but the estate in her hands is bound by the obligations entered into by the decedent, and the executor is entitled to the advantages conferred upon her testator by law. The members consist of two descriptions of persons; the non-borrowing class, composed of those who do not avail themselves of the privilege of borrowing in advance the ultimate value of their shares, but continue paying their monthly dues, until such time as from the earnings of the association they are entitled to receive the par value of their shares in cash ; and the borrowing class, composed of those who avail themselves, from time to time, of this privilege, and thus anticipate the ultimate value of their stock, paying a premium for the present use of it, as well ; Purd. 269, : to building associations in the counties of Phila- 68 Penn. St. 67. 82 Ibid. 180. 89 Ibid. 15. delphia, Berks and Schuylkill (which has not been 35 Leg. Int. 395. 1 Del. Co. R. 98. expressly repealed), authorizes parents to sub- : 103 Penn. St. 86. scribe for stock on behalf of their minor children. : 9 Tbid. 118. And by various local acts, this provision was 100 Ibid. 155. extended to the counties of Allegheny, Bucks, ® Endlich on Building Associations 2 73-4. Carbon, Dauphin, Del i 1 i - phin, Delaware, Juniata, Lancaster, The act 22 April 1850 (Pamph. 550), in reference Lehigh, Mifflin, Montgomery and Northampton. BUILDING ASSOCIATIONS. 245 as legal interest, monthly, in addition to their regular monthly dues, until the ultimate result is reached and the loan is paid and cancelled by the value of the stock. At each monthly meeting of the association, after the receipt of the monthly dues, interest and fines, the amount on hand, subject to loan, is announced ; it is then put up to competition, and awarded to the party who bids the hichest pre- mium for the use of the money; for this he gives a mortgage on real estate to secure the punctual payment of his dues and interest (and the principal also in case of default), which mortgage is cancelled on the winding up of the association. It will thus be seen, that the sources of profit consist of the premiums deducted from the loans, when made; the monthly interest paid ; besides fines charged upon dues and interest, when in arrear, and the profit on withdrawals of stock before the ultimate result is reached. These, with the payment of the monthly dues, constitute the income of the association ; and it is easily perceived, that by the monthly compounding of interest upon these items, the profits are largely increased ; so that the ultimate par value of the stock will generally be reached, and the asso- ciation wound up, in from eight to ten years, according to the amount of the premiums given for the anticipated loan thereof. The time must necessarily be longer when the current rate of interest is so low as to offer no inducement to bor- rowing members, The powers granted to such associations are not discounting privileges within the constitutional prohibition. By act 26th April 1855, the shares held by members are to be deemed personal property. They are exempted from taxation for state purposes on their capital stock or mortgages, and other securities for money loaned to their members.’ Nor are they subject to the provisions of the act of 1891, relating to the tax on capital stock.* Nor to the act relating to the registry of corporations. And in Philadelphia they may bring and maintain suits, and carry on those already brought in their corporate names, on all judgments, bonds, mortgages, notes, or other evidences of debt or obligations due them, or for monthly dues, interest, or any demand owing to them, and proceed to judgment and execution, notwithstand- ing their charter may have expired; and the officers last elected, or the survivors of them, are the officers to represent said corporations, for such purpose; and if no officer survive, the stockholders may elect others under their by-laws.® They may enforce a covenant in the mortgage of a borrowing member for the payment of taxes on the mortgaged premises.’ II. Act oF 20 Aprit 1874. Purd. 269. Szcr. 27. Building and loan associations incorporated under the provisions of this act, shall have the powers, and from the date of the letters-patent creating the same, when not otherwise provided in this act, be governed, managed and con- trolled as follows :* ; (1.) They shall have the power and franchise of loaning or advancing to the stockholders thereof the moneys accumulated, from time to time, and the power and right to secure the repayment of such moneys, and the performance of the other conditions upon which the loans are to be made, by bond and mortgage or other security, as well as the power and right to purchase or erect houses, and to sell, convey, lease or mortgage the same at pleasure to their stockholders, or others for the benefit of their stockholders, in such manner also that the premiums taken by the said associations, for the preference or priority of such loans, shall not be deemed usurious; and so also that in case of non-payment of instalments, premiums or interest by borrowing stockholders, for six months, payment of principal, premiums and interest, without deducting the premiums paid, or interest thereon, may be enforced by proceeding on their securities according to law. 135 Penn. St. 223, 225. 714 W.N. C. 344. a h. 329, 8 The act 11 May 1874, Pamph. 133, cured 5 viet May 1883. Purd. 272. defects in the organization of existing building 4 Purd. 1964. associations. 89 Penn, St. 428. 2 Pears. 348, 5 Ibid. 272. See 42 Leg. Int. 501. 6 Act 26 April 1869. Purd. 273. 246 BUILDING ASSOCIATIONS. (2.) The capital stock of any corporation created for such purposes, by virtue of this act, shall at no time consist in the aggregate of more than one million dol- lars, to be divided into shares of such denomination, not exceeding five hundred dollars each, aud in such number as the corporators may, in the application for their charter specify: Provided, That the capital stock may be issued in series ; but no such series shall at any issue exceed in the aggregate five hundred thou- .sand dollars, the instalments on which stock are to be paid at such time and place as the by-laws shall appoint; no periodical payment of such instalments to be made exceeding two dollars on each share, and said stock may be paid off and retired as the by-laws shall direct; every share of stock shall be subject to a lien for the payment of unpaid instalments, and other charges incurred thereon, under the provisions of the charter and by-laws, and the by-laws may prescribe the form and manner of enforcing such lien; new shares of stock may be issued in lieu of the shares withdrawn or forfeited; the stock may be issued in one or in suc. cessive series, in such amount as the board of directors or the stockholders may determine ; and any stockholder wishing to withdraw from the said corporation, shall have power to do so, by giving thirty days’ notice of his or her intention to withdraw, when he or she shall be entitled to receive the amount paid in by him or her, less all fines and other charges; but after the expiration of one year from the issuing of the series, such stockholder shall be entitled, in addition thereto, to legal interest thereon: Provided, That at no time shall more than one-half of the funds in the treasury of the corporation be applicable to the demands of with- drawing stockholders, without the consent of the board of directors, and that no stockholder shall be entitled to withdraw, whose stock is held in pledge for security. Upon the death of a stockholder, his or her legal representatives shall be entitled to receive the full amount paid in by him or her, and legal interest thereon, first deducting all charges that may be due on the stock ; no fines shall be charged to a deceased member’s account, from and after his or her decease, unless his legal rep- resentatives of such decedent assume the future payments on the stock. (3:) The number, titles, functions and compensation of the officers of any such corporation, their terms of office, the times of their elections, as well as the qualifications of electors, and the ratio and manner of voting, and the periodical meetings of the said corporation, shall be determined by the by-laws, when not provided by this act. (4.) The said officers shall hold stated meetings, at which the money in the treasury, if over the amount fixed by charter as the full value of a share, shall be offered for a loan, in open meeting, and the stockholder who shall bid the highest premium for the preference or priority of loan, shall be entitled to receive a loan of not wore than the amount fixed by charter as the full value of a share, for each share of stock held by such stockholder: Provided, That a stockholder may borrow such fractional part of the amount fixed by charter as the full value of a share, as the by-laws may provide; good and ample security, as prescribed by the by-laws of the corporation, shall be given by the borrower, to secure the repay- ment of the loan; in case the borrower shall neglect to offer security, or shall offer security that is not approved by the board of directors, by such time as the by-laws may prescribe, he or she shall be charged with legal interest, together with any expenses incurred, and the loss in premium, if any, on a resale, and the money may be resold at the next stated meeting; in case of non-payment of instalments or interest by borrowing stockholders for the space of six mouths, payment of principal and interest, without deducting the premium paid or interest thereon, may be enforced, by proceeding on their securities according to law. (6.) No premiuus, fines or interest on such premiums, that may accrue to the said corporation, accordiug to the provisions of this act, shall be deemed usurious ; and the same may be collected as debts of like amount are now by law collected in this commonwealth. (7.) No corporation or association created under this act shall cease or expire, from neglect on the part of the corporators to elect officers at the time mentioned in their charter or by-laws ; and all officers elected by such corporation shall hold their offices until their successors are duly elected. (8.) Avy loan or building association incorporated by or under this act, is hereby BUILDING ASSOUIATIONS. 247 authorized and empowered to purchase, at any sheriff’s or other judicial sale, or at any other sale, public or private, any real estate, upon which such association may have or hold any mortgage, judgment, lien or other incumbrance, or ground-rent, or in which said association may have an interest; and the real estate so purchased, or any other that such association may hold or be entitled to, at the passage of this act, to sell, convey, lease or mortgage, at pleasure, to any person or persons whatso- ever ; and all sales of real estate heretofore made by such associations to any person. an not members of the association so selling, are hereby confirmed and made valid. (9.) All such corporations shall have full power to purchase lands and to sell and convey the same, or any part thereof, to their stockholders or others, in fee- simple, with or without the reservation of ground-rents, but the quantity of land purchased by any one of said associations hereafter incorporated, shall not, in the whole, exceed fifty acres; and in all cases the lands shall be disposed of within ten years from the date of the incorporation of such associations respectively, (10.) All land and building associations are hereby authorized to make sale of, and assign or extinguish, to any person or persons, the ground-rents created as aforesaid. Act oF 10 Aprin 1879. Purd. 271. Sxcr. 1. It shall be lawful for any mutual savings-fund, or building and loan association, now incorporated or hereafter to be incorporated, in addition to dues and interest, to charge and receive the premium or bonus bid by a stockholder for. preference or priority of right to a loan, in periodical instalments: and such pre- mium or bonus so paid in instalments shall not be deemed usurious, but shall be taken to be a payment as it falls due, in contradistinction to a premium charged and paid in advance; and in so far as said premium or bonus, so charged and paid, in addition to dues and interest, shall be in excess of two dollars for each periodical payment, the same shall be lawful, any law, usage or custom to the contrary not- withstanding. It shall also be lawful for any mutual savings-fund or building and loan association to charge and deduct interest in advance, in lieu of premiums for preference or priority of right to a loan: Provided, That the certificate of incorporation of each association hereafter to be incorporated, and the certificate provided in section nine of this act, for those heretofore incorporated, shall set forth whether the premium or bonus bid for the prior right to a loan shall be deducted therefrom in advance, or paid in periodical instalments, or whether interest in advance shall be deducted from the loan in lieu of premium or bonus. Sxct. 2. Stockholders withdrawing voluntarily, shall receive such proportion of the profits of the association, or such rate of interest as may be prescribed by the by- laws, any law or usage to the contrary notwithstanding ;' but payment of the value of stock so withdrawn shall only be due, when the funds now by law appli- cable to the demand of withdrawing stockholders are sufficient to meet and liquidate the same, and then only in the order of the respective times of presentation of the notices of such withdrawals, which must have been presented in writing at a previous stated meeting, and have been then and there indorsed as to times of presentation, by the officer designated by the by-laws of the association. Sxcr. 3. The by-laws may provide for the involuntary withdrawal and cancella- tion, at or before maturity, of shares of stock not borrowed on: Provided, That such withdrawal and cancellation shall be pro rata among the shares of the same series of stock: And provided further, That not less than legal interest shall be credited and allowed to each share so withdrawn and cancelled. Szcr. 4. A borrower may repay a loan at any time, and in case of the re-payment thereof, before the maturity of the shares pledged for said loan, there shall be refunded to such borrower (if the premiums, bonus or interest shall have been deducted in advance) such proportions of the premiums, bonus or advance interest bid, as the by-laws may determine: Provided, That in no case shall the association retain more than one one-hundredth of said premiums or bonus for each calendar month that has expired since the date of the meeting upon which the loan was made, or if interest in advance, it shall retain only the interest due on the loan up to the time of settlement: And further provided, That such borrower shall receive 1 See 16 W. N. C. 365. 248 BUILDING ASSOCIATIONS. the withd ‘awing value of the shares pledged for said loan, and the shares shall revert back to the association. Secor. 5. In case of non-payment of instalments of stock, premiums, dues or interest, by borrowing stockholders, for the space of six months, payment of the same, together with the full principal of the loan, may be enforced by proceeding on their securities, according to law; and the moneys so recovered shall be paid into the treasury of the association for such uses (loans or otherwise) as may be deemed proper by the association; and if the said moneys so recovered, together with the withdrawal value of the shares of such defaulting borrower, shall exceed the amount it would have required, according to the preceding section, to have voluntarily repaid the loan, together with all the expenses incurred by the association, such excess shall be repaid to such defaulting borrower. Szcr. 6. Fines or penalties for the non-payment of instalments of dues, interest and bonus or premium, shall not exceed two per centum per month on all arrear- ages. * Sno 7. It shall be lawful for any married woman of full age to hold stock in any of said saving-funds, building or loan associations; and as such stockholder, she shall have all the rights and privileges of other members, including the right to borrow money from said associations and bid premiums therefor, and shall also have the right and power to secure such loan by transferring ber said stock or other securities to said association from which the same was borrowed, or by exe- cuting bond and mortgage upon her separate real estate to secure said loan: Provided, however, That the husband of such married woman join in the execu- tion of such bond and mortgage. And such married woman shall also have the right to sell, assign and transfer the said stock, or withdraw the same, without joining the husband in such transfer or withdrawal; and it shall be lawful for any such savings-fund, building or loan association to collect such loan made to such married woman, including the dues, interest, premium and fines, as loans made by such associations to other members are now by law collected; and such stock, or interest in such stock, shall not be liable for the debts of any husband of such married woman.) Act oF 17 APRIL 1876. Purd. 272. Sxct. 1. All deeds of conveyance of lands situate within this ecemmonwealth, made by any savings-fund, building or loan association, after the term for which it was in- corporated shall have expired, shall be as good and effectual, and have the same force and effect for passing title to the lands so conveyed, as though executed during the period of its chartered existence. Act oF 17 JUNE 1878. Purd. 272. Szct. 1. All purchases of land heretofore made by building and loan associations, incorporated by virtue of any law of this commonwealth, and also all sales of the same, made by them, to their stockholders or others, are hereby confirmed ; and the titles of said associations and their vendees are hereby declared good and valid, to all intents and purposes; and the said associations, their successors or assigns, may sell, convey or lease, at pleasure, at any time within five years from the passage of this act, the undisposed-of portions of the real estate so hereto purchased. Act or 22 May 1883. Puard. 272. Secr. 1. Mutual loan and building associations shall be exempt from the pro- visions of each and every law imposing taxes for state purposes on their capital stock or mortgages, and other securities for money loaned to their own members ; but the real estate owned by said association shall be subject to the same rates of taxation as the real estate of other corporations and persons: Provided, how- ever, oe the right of the commonwealth to collect taxes already accrued is hereby reserved. 1The 9th section provides for existing associations entitling themselves to the benefits of the statute. Purd. 272. BUILDING ASSOCIATIONS. 249 Act oF 18 Fesruary 1869. Purd. 272. Sect. 1. On the petition of any twelve or more citizens of Pennsylvania, the court of common pleas of the county of Philadelphia shall have all powers con- ferred by the acts relating to loan and building associations, to incorporate them and their associates as a perpetual corporation, for the purposes following, to wit: to purchase, hold and build upon and sell in fee-simple, houses and lots in the city of Philadelphia, and also to make loans on bonds and mortgages to others to build and improve, and the same to sell and assign, and to borrow moneys upon bonds and mortgages or otherwise for said purposes; and in making sales, or leases, or loans on mortgages, it shall be lawful for such corporation and borrowers of them to agree upon, and insert in the deeds of conveyance, a condition against the use of any granted or leased premises for the sale of any intoxicating liquors, or unlawful immoral purposes, the carrying on any noxious or unhealthful business, with right of re-entry for breach of such condition: Provided, That no corporation, chartered under this act, shall have a greater capital than one-half million of dol- lars, and shall stipulate by their articles to devote their capital to improve or promote the improvement of parts of said city most needivg physical, healthful and moral reform, which shall be defined and prescribed in the charter, and not exceed eight main squares, and shall apply all their profits over their expenses, and a return of eight per centum per annum, to the shareholders to and for the construc- tion of substantial stone, or brick, or iron habitations, for homes for respectable persons of limited means, either as lessees or purchasers: And provided, That the said court shall be satisfied of the benevolent purposes of the petitioners ; and that the legislature may, at any time, repeal, this act, and such charters, if the powers hereby granted should be found prejudicial to thé community, but in manner to do no injustice to the corporators. Act oF 26 Aprrt 1869, Purd. 273. Sxer. 1. All building, saving and loan associations may bring and maintain suits, and carry on those already brought, in their corporate names, on all judgments, bonds, mortgages, notes or other evidences of debt or obligations due them, or for monthly dues, interest or any demand owing to them, and proceed to judgment and execution, notwithstanding their charter may have expired ; and the officers last elected, or the survivors of them, shall be the officers to represent said corporations for such purpose; and if no officer survive, the stockholders may elect others under their by-laws. Sxot. 2. This act shall only be construed so as to enable said associations to collect up and divide their assets and wind up their affairs, and not to allow them to transact new business: Provided, That this act shall only apply to the city of Philadelphia. III. A building association must loan its surplus funds in the mode prescribed by the statute; it has no right to fix a minimum rate of premium? But a loan, not made in pursuance of such invalid by-law, nor affected thereby, is binding on the borrower.’ It cannot, by a by-law compel its stockholders to offer a premium for priority of payment, after its shares have become worth par.* Asswmpsit will lie to recover the monthly dues.5 They constitute separate debts to the association with reference to the question whether he is six months in arrear.6 A member is deemed six months in arrear, notwithstanding a partial payment of dues in the first of the six months.” The position of a borrowing member who has received the par value of his stock and given bond to secure payment of his future dues is not a settled question in this state It is decided, that stock payments are not ipso facto an extinguishment 1 Such sci. fa. may issue, though the land is 8 See 42 Leg. Int. 217, for an able article on situate in another county. 100 Penn. St. 402. this subject, in which the writer takes the position 2 95 Penn. St. 122. that every subsequent stock payment is a reduc- 8 9W.N. C. 251. tion of the debt secured by the mortgage; though 4 7 Ibid. 95. See 2 Law Times (N. 8.) 17. he admits that a purchaser at sheriff’s sale of 5 7 Leg. & Ins. Rep. 31. the mortgaged premises cannot claim to have the 6 12 W.N. C. 222. stock payments so applied for his bevefit. On 7 4 Leg. Gaz. 388. this question, see 17 N. J. (Eq.) 497. 250 BUILDING ASSOCIATIONS. of so much of the mortgage debt, though the mortgagor may so treat them, at his option, in a suit upon the mortgage! But a purchaser at sheriff's sale of the mem- ber’s interest on the mortgaged premises, under a junior incumbrance, is not entitled to a credit for stock payments made by the mortgagor.? So. where a building association mortgage is divested by an orphans’ court sale for the payment of debts, the association can only claim the same amount as if the. borrower had elected to pay off the loan® And in an action against a defaulting borrower, upon a judg- ment note given to secure the loan, the.defendant is only entitled to a credit for the actual amount paid upon his stock (pledged as collateral security), not to the value of the stock, at the time of trial Where the mortgage does not secure the fines, they cannot be charged on the land® A stockholder, who gives notice of withdrawal, thereby becomes a creditor to the amount of his legal claim, and is entitled to recover as such® But the association has a right to retain from a withdrawing stockholder, a proportion of the probable loss sustained by reason of the purchase of real estate sold on its mortgage, which has depreciated in value, even before the loss has been finally determined by a sale.’ A resolution permitting borrowers to withdraw, on certain terms, the stock to be ‘ cancelled,” when acted on by a member, is conclusive upon the assuciation.. Such resolution cannot be rescinded to the prejudice of a member, who has made appli- cation to withdraw, and refrained from paying his monthly dues, under the belief that his application has been accepted.® There can be no withdrawal after the stock has reached par.” Though a member repay a sum borrowed, with lawful interest, his mortgage remains as a security for his monthly dues ;" and for his liability to contribution for its necessary expenses,” A stockholder is not entitled to judgment against the association, for the value of his shares, merely on the report of auditors that they are worth par.” To recover the value of paid-up shares, the stockholder must proceed by bill in equity; he cannot sue the association at law.™ In winding up the affairs of an insolvent building association, after deducting the expenses of the administration of the assets, general creditors are first to be paid in full, and the balance of the fund is to be distributed pro rata among those whose claims are based upon the stock of the corporation, whether they have with- drawn and hold orders for the withdrawal value or not; iv marshalling the assets, neither class is to be preferred over the other.® So, the holders of matured stock are not creditors, and can only share pro rata with the holders of uomatured stock, after payment of the stock of the corporation.’® Where the association is authorized by its charter to receive money on deposit, from its stockholders, to bear interest, in case of insolvency, such stockholders are creditors as to their deposits and are entitled to share pro rata with other outside creditors in preference to stockholders; so where money has been received from persons who were net stock- holders, though the association had no authority to receive such deposits.” It seems, however, that withdrawing stockholders should not be required to share losses resulting from bad investments, made after they withdrew. The fact that an association has made an assignment for the benefit of creditors, does not prevent the recovery of a judgment against it'® The treasurer is entitled to claim as a general creditor for moneys paid by him on orders drawn before the assignment, in prefer: ence to the claims of withdrawing stockholders.” 1 35 Penn. St. 463. 10 106 Penn. St. 334. 2 46 Ibid. 473. 93 Ibid. 258. 7 Phila, 189. 14 47 Penn, St. 352. 5 Phila. 62. 83 Leg. Int. 329. 6 W. N.C. 267. 2 Kulp 210. 12 44 Penn. St. 383, 8 34 Leg. Int. 49. 13 6 W. N.C. 330. Seo Ibid. 349. 497 Penn. St. 514. 2 Kulp 19. 14 8 Ibid. 176: s. oc. 93 Penn. St. 308. 5 41 Leg. Int. 16, Tho surety of a borrowing 15 102 Penn. St. 184. And sco 9 W. N. 0. 7% member is liable to the same extent as his prin- 16 100 Penn. St. 493. cipal. 8 Luz, L. Reg. 199. 1 Thid. 6 85 Penn. St. 304. 12 W. N. 0. 207. 18 102 Ibid. 184. 7 25 Pitts. L. J. 39. Ibid. 40. 0 6W. N.C. 176. 8 50 Penn. St. 32. 30 102 Penn. St. 184, 9 17 Leg. Int. 148, [ 251 ] Buoys and Beacons, Act or 13 May 1879. Purd. 1602. Sror. 1. Any person or persons who shall moor any vessel or vessels, of any kind or name whatsoever, or any raft or any part of a raft, to any buoy, beacon or day- mark, placed in the waters of Pennsylvania, by the authority of the United States light-house board, or shall in any manner hang on with any vessel, or raft or part of a raft, to any such buoy, beacon or day-mark, or shall wilfully remove, damage -or destroy any such buoy, beacon or day-mark, or shall cut down, remove, damage or destroy any beacon or beacons, erected on land in this state, by the authority of the said United States light-house board, or having through unavoidable accident run down, dragged from its position, or in any way injured any buoy, beacon or day-mark as aforesaid, and shall fail to give notice, as soon as practicable, of having done so, to the light-house inspector of the district in which said buoy, beacon or day-mark may be located, or to the board of wardens for the port of Philadelphia, shall, for every every such offence, be deemed guilty of a misdemeanor, and upon conviction thereof before any court of competent jurisdiction, shall be punished by a fine not to exceed two hundred dollars, or by imprisonment not to exceed three months, or both, at the discretion of the court; one-third of the fine in each case shall be paid to the informer, and two-thirds thereof to the light-house board, ta, be used in repairing the said buoys or beacons. Suor. 2. It shall be unlawful for any vessel to anchor on the range line of any range lights established by the United States light-house board in this state; and the master of any vessel so anchoring shall be deemed guilty of a misdemeanor, and upon conviction thereof, before any court of competent jurisdiction, shall be punished by a fine not to exceed fifty dollars; one-half the fine in each case to be paid to the informer and one-half to the state. Scr. 3. The cost of repairing or replacing any such buoy, beacon or day-mark, which may have been misplaced, damaged or destroyed by any vessel or raft what- soever, having been made fast to any such buoy, beacon or day-mark, shall, when the same shall be legally ascertained, be a lien upon such vessel or raft, and may be recovered against said vessel or raft, and the owner or owners thereof, in an action of debt, in any court of competent jurisdiction in this state. Burglary. I. Provisions of the Penal Code. III. Warrant for a burglar. II. Judicial decisions relating to burglary. I. Acr 31 Marcon 1860. Purd. 482. Scr. 135. If any person shall, by night, wilfully and maliciously break or enter into the state capitol, or other public building belonging to the commonwealth, or to any city or county thereof, or to any body corporate, society or association, or into any church, meeting-house or dwelling-house, or out-house, parcel of said dwelling- house, with an intent to kill, rob, steal or commit a rape, or any felony whatever, whether the felonious intent be executed or not, the person so offending shall, on conviction, be adjudged guilty of felonious burglary, and be sentenced to pay @ fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. . Seor. 186. If any person shall, in the day-time, break and enter any dwelling- house, shop, warehouse, store, mill, barn, stable, out-house, or other building, or wilfully and maliciously, either by day or by night, without breaking, enter the same with intent to commit any felony whatever therein, the person so offending shall be guilty of felony, and, on conviction, be sentenced to pay a fine not exceeding five 252 BURGLARY. hundred dollars, and to undergo an imprisonment, by separate or solitary confine- ment at labor, not exceeding four years.! The 179th section provides that on all convictions for burglary, &c., the defendant shall, in addition to the punishment prescribed for such offence, be adjudged to restore to the owner the property taken, or to pay the value of the same, or so much thereof’ as may not be restored: Provided, That the party to whom restitution is to be awarded shall not be thereby rendered incompetent as a witness on the trial of the offender. II. There must be both a breaking and an entry to complete this offence.* The following acts amount to an actual breaking, viz.: opening the casement, or breaking the glass window, picking open the lock of a door, or putting back the lock on the leaf of a window, or unlatching the door that is only latched.? But if a man leaves his doors or windows open, it is his own folly and negligence ; and if a man enters therein, it is no burglary; yet if he afterwards unlock an inner, or chamber door, it is sot But to come down a chimney is held a burglarious entry ; for that is as much closed as the nature of things will permit. So also, to knock at a door, and upon opening it to rush in with a felonious intent; or, under the pretence of taking lodgings, to fall upon the landlord and rob him, these acts have been adjudged burglarious, though there was no actual breaking; for the law will not suffer itself to be thus trifled with.® Obtaining an entrance into a dwelling- house, by fraud or artifice, with intent to commit a felony, is a constructive breaking.? And so, if a servant opens and enters his master’s chamber-door with a felonious -design ; or if any other person lodging in the same house, or in a public inn, opens and enters another’s door with such evil intent, itis burglary. Nay, if a servant conspires with a robber, and lets him into the house by night, this is burglary in both.® As for the entry, any, the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient ; as to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one’s money, are all of them burglarious entries.® Burglary may be committed in a house in the city, in which the prosecutor intended to reside on his return from his summer residence in the country, and to which, on going into the country, he had removed his furniture from his former residence in town, though neither the prosecutor nor his family had ever lodged in the house in which the crime is charged to have been committed, but merely visited it occasionally.” If there be daylight or twilight enough, begun or left, whereby the countenance of a person may be reasonably discerned, a breaking and entry is not burglary, by the common law.” To constitute the crime of burglary there must be an intent to commit a felony ; therefore, a breaking and entering a dwelling-house, in the night-time, with intent to commit adultery, is not burglary.” The general rule is, that if an out-house be so near the dwelling-house that it is used with the dwelling-house as appurtenant to it, though not within the same inclosure, burglary may be committed in it. But if there be no common entrance, and the buildings be distinct, the offence does not exist. Breaking and entering a store-house, not parcel of a dwelling-house, is not burglary at common law, nor under the Pennsylvania statute." The 136th section of the criminal code applies to cases partaking of the nature of burglary, when the breaking is in the day-time. aes Re-enacted -by act 22 April 1863 2 2. Purd. 8 4 Bl. Com. 177. 2. ® Ibid. But to break out is not burglary. 82 41 Hawk. P. 0. 130, Penn. St. 306, 3 1 Halo H. P. C. 0. 38. 10 3. R. 207. And see 6 Phila. 305, 4 Bl. Com. 176, M7 Dane’s Abr. 139. Ibid. 12 16 Vt. 551, 6 Tbid. 177. 18 Whart. Cr. L. 3 1561. 3 82 Penn, St. 306. 85 Ibid. 66. And see 1 60 Penn. St. 103. And see 3 Brewst, 340. bid. 64. 16 60 Penn. St. 103. BURIAL GROUNDS. 2538 III. A WARRANT TO APPREHEND A BURGLAR. BuRKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the township of L—, in the county of Berks, greeting : _ Wuereas, J. L., of the township of L , in the county of Berks, hath this day made information, upon oath, before J. R., one of our justices of the peace in and for the said county, that yesterday, in the night, the dwelling-house of him, the said J. L., at L—— township aforesaid, was feloniously and burglariously broken open and entered, and one silver coffee-pot, of the value of forty dollars,! of the goods and chattels of him the said J. L., feloniously and burglariously stolen, taken and carried away fram thence, and that he hath just cause to suspect, and doth suspect, that G. B., of the same township, weaver, the said felony and burglary did commit. ‘These are, therefore, to command you forth- with to take the said G. B., and bring him before the said J. R., to answer the said complaint, and further to be dealt with according to law. Witness the said J. R., at L—— township aforesaid, the second day of September, in the year of our Lord one thousand eight hundred and eighty. J. R., Justice of the Peace. [SEAL] Burial Grounds, Act 31 Marca 1860. Purd. 277. Sect. 47. Any person who shall wilfully and maliciously destroy, mutilate, deface, injure or remove any tomb, monument, gravestone or other edifice, placed in any cemetery or grave-yard appropriated to and used for the interment of human beings, in this commonwealth ; or shall wilfully and maliciously injure, destroy or remove any fence, railing or other work for the protection or ornament of such places of interment ; or shall wilfully open any tomb, vault or grave, within the same, und clandestinely remove any body or remains therefrom ;? or maliciously destroy any tree or shrubbery growing in such cémetery or graveyard ; shall be guilty of a misdemeanor, and on conviction of either of the said offences, be sentenced to undergo an imprisonment not exceeding one year, or to pay a fine not exceeding one hundred dollars, or both, or either, at the discretion of the court. Act 19 May 1879. Purd. 482. Szcr. 1. Any person or persons who shall, wilfully and maliciously, destroy, mutilate, injure, pluck off, deface or remove therefrom, any tree or trees, vines, flowers, grass or ornamental shrubbery, growing, being or temporarily placed therein, for ornamental or useful purposes, in any cemetery or grave-yard in this common- wealth, used for the interment of human beings, or shall wilfully trespass in and upon private inclosures in any cemetery or grave-yard aforesaid, shall be guilty of a misdemeanor, and on conviction of any said offences, be sentenced to undergo an imprisonment, not exceeding one year, or to pay a fine of not exceeding one hundred dollars ($100), or both, or either, at the direction of the court. 1 Tf the offence be burglary alone, unattended with larceny, the warrant may be varied accord. ingly. 2 See 33 Am. L. Reg. 506. [ 254 ] Butter and Cheese. Act oF 21 May 1885. Purd. 1621. 1. No person, firm or corporate body shall manufacture out of any oleaginous sub- stance or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her or their possession, with intent to sell the same as an article of food. 2. Every sale of such article or substance, which is prohibited by the first section of this act, made after this act shall take effect, is hereby declared to be unlawful and void, and no action shall be maintained in any of the courts of this state to recover upon any contract for the sale of any such article or substance. 3. Every person, company, firm or corporate body who shall manufacture, sell or offer or expose for sale, or have in his, her or their possession, with intent to sell, any substance, the manufacture and sale of which is prohibited by the first section of this act, shall, for every such offence, forfeit and pay the sum of one hundred dollars, which shall be recoverable with costs by any person suing in the name of the commonwealth, as debts of like amount are by law recoverable; one-half of which sum, when so re- covered, shall be paid to the proper county treasurer for the use of the county in which suit is brought, and the other half to the person or persons at whose instance such a suit shall or may be commenced and prosecuted to recovery. 4. Every person who violates the provisions of the first section of this act, shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine of not less than one hundred dollars nor more than three hundred, or by imprisonment in the county jail for not less than ten nor more than thirty days, or both such fine and imprisonment for the first offence, and imprisonment for one year for every subse- quent offence. 5. It shall be the duty of constables of the several: cities, boroughs, wards and townships of this commonwealth, to make quarterly reports, under oath, to the courts of quarter sessions, of all violations of any of the provisions of this act which may come or be brought to their notice ; and it shall be the duty of the judges of the said courts to see that the said returns are made regularly and faithfully. . Act oF 23 May 1893. Purd. 1622. 1. It shall not be lawful for any charitable or penal institution in the state of Penn- sylvania to use, or furnish to its inmates, any substance, the manufacture or sale of which is prohibited by section one of the act, entitled ‘‘ An act for the protection of the public health and to prevent adulteration of dairy products and fraud in the sale thereof,” approved May twenty-first, Anno Domini one thousand eight hundred and eighty-five. ‘ 2. Any officer, agent, steward or other official of any such charitable or penal insti- tution, who shall knowingly buy any substance the manufacture or sale of which is prohibited by section one of the said act of May twenty-one, Anno Domini one thou- sand eight hundred and eighty-five, for use in such charitable or penal institution, or who shall knowingly cause such substance to be used by the inmates of such charita- ble or penal institution, shall be deemed guilty of a misdemeanor, and upon convic- tion shall be punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding two years for each offence, or either or both, at the discretion of the court. 3. Every person who shall knowingly sell or offer for sale, to any officer, agent, steward or other official of any charitable or penal institution, any substance, the manufacture or sale of which is prohibited by section one of the said act of May twenty-first, Anno Domini one thousand eight hundred and eight-five, for use in such charitable or penal institution, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding one thousand dollars, or by im-- prisonment not exceeding two years, or either or both, at the discretion of the court. CATTLE. 255 Act oF 10 Junz 1881. Purd. 1332. Sror. 1. If any person or persons shall, with intent to defraud, sell, supply or bring to be manufactured, to any butter or cheese manufactory in this state, any milk, diluted with water, or in any way adulterated, uncleanly or impure, or milk from which cream has been taken, or milk commonly known as skimmed milk, or if any person or persons so furnishing milk as aforesaid, who shall keep back any part of the milk known as “‘strippings,’’ or shall knowingly bring or supply milk to any butter or cheese manufactory, that is tainted or partially sour, or shall knowingly bring or supply to any butter or cheese manufactory, milk drawn from cows, within fifteen days before parturition, or within five days after parturition, shall for each offence forfeit and pay a sum not less than ten dollars nor more than one hundred dollars, with costs of suit ; to be sued for in any court of competent jurisdiction, for the benefit of the person or persons, firm or association or corporation upon whom such fraud or neglect shall be committed. The act 21 May 1885 is constitutional. It does not apply to one who receives oleo- margarine from another state and sells it in its original package.! Where oleomargarine was brought into this state in a package containing ten pounds and out of this package two pounds were sold, it was held that there was a breaking of the original package.” A person who sells oleomargarine is liable for the penalty although he sells it in ignorance of its real nature.* The selling of oleomargarine, the having it in posses- sion and the exposing it for sale on the same day are not separate offences and the penalties cannot be multiplied. Where, however, the double penalty imposed is less than the maximum fine for the one offence, the supreme court will not reverse.* To sustain a conviction under this act, it must affirmatively appear that the oleomar- garine was sold by the defendant as an article of food. An action lies in this state for the price of oleomargarine sold in another state and delivered here.® This act sup- plies the act 24 May 1883, P. L. 43. Where the case stated averred that the de- fendant was an agent of a non-resident manufacturer and that he sold at his store in this state, a package of oleomargarine weighing eighty pounds made and stamped and branded in Rhode Island for use as an article of food, it was held that this statement did not amount to an assertion that the sales were made in the original package of commerce.’ Cattle. Act oF 12 Aprin 1866. Purd. 292. Sect. 1. It shall not be lawful for any person who may own any cattle or sheep, affected by the disease known as the pleuro-pneumonia, or other contagious or infec- tious disease, to sell or otherwise dispose of any cattle, either alive or slaughtered, from the premises where such disease is known to exist, nor for a period of two months after such disease shall have disappeared from such premises. Sect. 2. No cattle or sheep shall be allowed to run at large in any township or borough where any contagious disease prevails; and the constables of such townships are hereby authorized and required to take up and confine any cattle so found running at large, until called for, and until all costs are paid; and in townships where there are no constables, it shall be the duty of the township clerk to perform this service ; and the sad officer shall be entitled to receive one dollar for each head of cattle so taken up; and any officer who shall refuse to perform the duties of this act shall be liable to a fine of ten dollars. Srcr. 3. Any person offending against the provisions of the first section of this act shall be guilty of a misdemeanor, and upon conviction, be sentenced to pay a fine not exceeding five hundred dollars, or undergo an imprisonment not exceeding six months. Act or 1 May 1879. Purd. 292. Sct. 1. Whenever it shall be brought to the notice of the governor of this state, that the disease known as contagious or infectious pleuro-pneumonia exists among the cattle in any of the counties in this state, it shall be his duty to take measures to promptly.suppress the disease and prevent it from spreading. 111 Atl. 623. 114 P.8. 265. 48 L. 1.4. 5153 P. S. 625, 627. 12 C. C.170, 580. 13 1148 P.S. 559. Ibid, 28. 3139 P. 8. 347. 6 146 P.S. 519. #152 P. 8. 174, 170. 7156 P. 8. 201. 256 CATTLE, Sect. 2. For such purpose, the governor shall have power, and he is hereby authorized to issue his proclamation, stating that the said infectious or contagious disease exists in any county or counties of the state, and warning all persons to seclude all animals in their possession that are affected with such disease, or have been exposed to the infection or contagion thereof, and ordering all persons to take such precautions against the spreading of such disease as the nature thereof may, in his judgment, render necessary or expedient; to order that any premises, farm or farms, where such disease exists, or has existed, be put in quarantine, so that no domestic animal be removed from said places so quarantined ; and to prescribe such regulations as he may judge necessary or expedient to prevent infection or contagion being communicated in any way from the places so quarantined ; to call upon all sheriffs and deputy-sheriffs to carry out and enforce the provisions of such procla- mations, orders and regulations, and it shall be the duty of all the cheriffs and deputy-sheriffs to obey and observe all orders and instructions which they may receive from the governor in the premises; to employ such and so many medical and veterinary practitioners, and such other persons as he may, from time to time, deem necessary, to assist him in performing his duty as set forth in the first sec- tion of this act, and to fix their compensation ; to order all or any animals coming into the state to be detained at any place or places for the purpose of inspection and examination ; to prescribe regulations for the destruction of animals affected with the said infectious or coutagious disease, and for the proper disposition of their hides and carcasses, and of all objects which might convey infection or con- tagion (provided that no animal shall be destroyed, unless first examined by a medical or veterinary practitioner in the employ of the governor as aforesaid) ; to prescribe regulations for the disinfection of all premises, buildings and railway cars, and of objects from or by which infection or contagion may take place or be con- veyed; to alter and modify, from time to time, as he may deem expedient, the terms of all such proclamations, orders and regulations, and to cancel or withdraw the same at any time, Szcr. 3. All the necessary expenses incurred under direction or by authority of the governor in carrying out the provisions of this act, shall be paid by the treas- urer, upon the warrant of the auditor-general, on being certified as correct by the governor: Provided, That animals coming from a neighboring state that have passed a veterinary examination in said state and have been quarantined and dis- sharged, shall not be subject to the provisions of this act. [ 257 } Of Writs of Certiorari, to Justices of the Peace. An essay on the nature and effect of the writ of certiorari, the legal provisions relating to it, and the return to be made by the magistrate. Ir frequently happens that a party is prevented by law from appealing from the magistrate’s judgment or proceeding; as, where the amount is below five dollars thirty-three cents, or where the twenty days allowed for an appeal have elapsed. In these, and other cases, the only remedy is by certiorarz. Where the magistrate’s proceedings are erroneous and illegal on the face of his record, this remedy may be resorted to successfully, and sometimes is, in preference to an appeal. It is a subject of deep regret that, notwithstanding the terms of the preliminary affidavit, this writ is so frequently taken merely for the purpose of delay, or of annoyance to the other party. In a majority of cases, the original judgments are affirmed by the court, without a color of objection being offered by the exceptant; or if exceptions e filed, he fails to appear in person or by counsel, on the argument day, to sustain them. . A certiorari is a writ of error in every respect but form; its only office being to remove the proceedings for the inspection of the court.’ It is essentially a writ of error, applicable only to proceedings not according to the course of the common law. It issues, by virtue of the provisions of the act of 20th March 1810,° from the court of common pleas toa justice of the peace, for the purpose of reviewing the regularity of his proceedings in a civil case. Its office is simply to bring up the record for review; and the common pleas only examines to see if the justice acquired jurisdiction, and acted, during the whole proceedings, within the limits of the jurisdiction thus acquired.* Being a writ of error, in everything but form, to entitle the party suing it out to a supersedeas he must give security ; which may be taken by the prothonotary.® In civil suits before a justice of the peace, under the act of 1810, the power of the supreme court to remove the proceedings, by certiorari, is taken away, by the 24th section of that act. In such cases, the judgment of a justice is only reviewable by the court of common pleas; and the 22d section of the same act provides, that the judgment of the court of common pleas shall be final in all pro- ceedings so removed, and that no writ of error shall issue thereon.’ The supreme court cannot review the decision of the common pleas, even if erroneous.’ This, however, only applies to a judgment on a certiorari issued under the act of 1810 ; where a subsequent act confers jurisdiction on justices of the peace, to proceed in a different manner from that directed in that act, the judgment of the common pleas on certiorari may be re-examined by the supreme court.? It does not apply to the proceedings of two justices under the landlord and tenant law.° But it does apply to a proceeding under the stray law ;" and to an action to recover a penalty for a breach of ordinance.” In order to obtain a writ of certiorari, the party aggrieved, his agent or attorney, must make an affidavit, which may be sworn to before the prothonotary, that it is not sued out for the purpose of delay, but that in his opinion the cause of action was not cognisable before a justice ; or, that the proceedings proposed to be removed, are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige him to pay more money (or to receive less from his opponent) than is justly due.” The affidavit must substantially follow the words of the act.* The party must also give security, by recognisance, in double the amount of the judgment, conditioned J1R.321. 3P.& W.24. 9 Penn. St. 216. Penny. 85. 2 35 Penn. St. 419. 8 43 Penn. St. 111. 42 Leg. Int. 277. 3 Purd. 793. 9 23 Penn. St.521. 25 Ibid. 134. 46N. Y. 312. 10 4 Binn. 185. 28. & KR. 112. 5 2 Phila. 68, ml 2 R. 20. 6 Purd. 793. 12 5 Ibid. 119. 7 Ibid. 794. The act of 1879, enlarging the 18 Purd. 794. ‘ : jurisdiction of justices to $300, does not affect 4 2Bro.217. 1T.&H. Pr. 891. 3 Bright. the finality of the judgment on certiorari. 3 Dig. 3009, pl. 25. See Grayd. Forms 38, 17 258 CERTIORARI. for the payment of the debt, interest and costs, in case the judgment be affirmed, or the writ of certiorari be discontinued or non-prossed.' ; The writ issues, of course, on filing the requisite affidavit and recognisance, the necessity for a special allowance of it by one of the judges having been dispensed with by the act of 26th April 1855.2 It is directed to the magistrate by whom the judgment has been rendered, and commands him ‘‘to certify and send before the court the plea, with all things touching the same, so full and entire as before him they remain, together with the writ itself, that they may further cause to be done thereupon that which is right, and according to the law and constitution of this commonwealth ought.” And on his failure to comply with its command, the court may compel obedience by an attachment. The original writ must be delivered to the justice; a service by copy is not sufficient.* The writ having been duly issued by the prothonotary, and delivered to the magistrate, it becomes his duty, although the twenty days may have expired, to certify the whole proceedings had before him, by sending the original precepts or writs, a transcript from his docket of the proceedings had before him, and the exe- cution or executions, if any have been issued. If the entire record be not returned, the party may allege diminution of record, and the court will grant a rule on the magistrate to send up that part which is wanting. He is liable to attachment if that rule be disregarded. - After arranging all the process and the copy of his own proceedings, in order of time, and duly certified, the magistrate should fasten them to the writ of certiorari, so as to inclose them within it, leaving the indorsement of the writ exhibited ; he may then write the return on the writ, thus: ‘“To the Honorable the Judges within named, the plea within mentioned, with all things touching the same, so full and entire as before me they remain, I hereby respect- fully certify and send, as within I am commanded, together with this writ.” A. B., Alderman. It is the duty of the party excepting, to see to the return of the writ. He should therefore call on the magistrate and obtain the record and file it in the prothonotary’s office in season for the day appointed by the court for the argument of such matters. In some of the courts, the rule requires the record to be returned and exceptions to be filed by a stated time, prior to the argument day; in default of which the certiorari will be dismissed. No other return than that of the record can be legally made. The magistrate cannot, for instance, inquire into the fact of the death of parties to the suit, and return such fact in lieu of that which he is required to fur- nish. Such a return would subject him to an attachment. These peremptory rules are based upon the 25th section of the act of 1810, which enjoins the court to decide thereon at the term to which the proceedings are returnable.® By the 21st section of the act of 1810, no yudgmené can be set aside on certiorari, unless it be issued within twenty days after judgment rendered, and served within five days thereafter. If this provision be not observed, the court will not look into the judgment, even if it do not appear from the record that the summons was served, if within the twenty days the defendant had knowledge of the proceedings, and applied to have the judgment opened.® But if it be apparent on the face of the record that the summons was not served in the manner directed by the act of 1810, and the defendant do not appear, the court will reverse the proceedings, on certiorari, notwithstanding more than twenty days may have elapsed before the issuing of the writ :’ where there is no legal service of the process on the defendant, he is not in court, and all the subsequent proceedings are erroneous and void.£ But in such case, the party must satisfy the court that his application was made within twenty days after the fact of the entry of the judgment has come to his knowledge! The fact that notice was not given may be proved by parol.!? A judgment obtained : Bae ‘ 7 89 Penn. St. 460. And see 1 L. Law Rev. urd. , note w, 141, 814 Luz. L. Reg. 445. 8 19 Penn. St. 495. 5 Clark 350. 1 Pitts. 271 41 W.« 307, Purd. 709 n. And see 15 W.N. C. 30. 5 Purd. 794, But this clause is merely direc- § 1 Ash. 135. 1 Phila. 439, 1 Kulp 341, And tory ; the omission to decide at the first term does see 21 Leg. Int. 340. 29 Ibid. 12. 8 Phila. 636. not oust the jurisdiction of the court. 65 Penn. 10 Ibid. 482. 2 Pears. 360. Bt. 34. ‘ 10 19 Penn, St. 495. 6 1 Ash, 135, CERTIORARI. 259 by any trick or fraud ought to be reversed, if the certiorari be taken within a reasonable time after it is discovered.! So also, where it appears on the face of the record, that the justice had no jurisdiction, the court will reverse, notwith- standing the lapse of more than twenty days. This proviso of the act of 1810 only applies to civil suits; an action for a penalty for a breach of ordinance is not included? Formerly, the court would not travel into the merits of the original matter, but took the case as stated on the magistrate’s return.® But now, to prevent injustice, the evidence given before him will, under special circumstances of fraud or gross injustice, be inquired into.‘ Where there is reason to suspect partiality or corrupt practice on the part of the justice, as where he refuses to hear material testimony, the court will permit parol evidence to be introduced ; so, where one justice re-examines what has been already determined by another.® But, in general, parol evidence is inadmissible, if the pro- ceedings appear to be regular on their face, and the justice has acted within the sphere of his jurisdiction.® The parol evidence must relate to the conduct of the justice; not to that of the party ;” or to the merits of the case.* If, from the whole facts, a fair presumption arises that the justice refused to grant a continu- ance prayed for, because he believed the party was guilty of laches, &c., the cours will not impute bad motives to him.® . The act referred to provides that there shall be no reversal for want of formatity’ in the magistrate’s proceedings, if it shall appear, on the face thereof, that the defendant confessed a judgment for any sum within the jurisdiction of the justice ;, or that a precept issued in the name of the commonwealth, requiring the defendant to appear before him on some day certain, or directing the constable to bring the defendant forthwith before him, agreeable to the provisions of the act; and that the coustable having served the writ, judgment was rendered on the day fixed, or some other day to which the case was postponed by the justice, with the knowledge. of the parties. As regards the day of appearance and judgment, it should be stated on the justice’s docket; but if the day of appearance be mentioned, and then the entry proceed to state that the case was examined and judgment rendered, the court will presume that judgment was given on that day.’° The magistrate is not bound to enter on his docket the evidence on which his judgment is founded—it will be. presumed that it was on legal proof." He need only state the demand and the kind of evidence produced to support the claim, whether upon bond, note, penal or single » bill, writing obligatory, book-debt, damages on assumption, or whatever it may be, so as to enable the court to ascertain the grounds of the controversy, and his decision thereon.” But if he should, unnecessarily, so enter it, and it be found insufficient to support the judgment, it will be reversed. So, where the evidence is not the legal evidence which the law calls for, the court would probably set aside the pro- ceedings, where the party had no appeal. But where he has ample remedy by appeal, and, neglecting it, enters bail for the stay of execution, the court will not interpose.¥ : : Where it appears on the face of the record, that the magistrate has exceeded his jurisdiction, by giving judgment and issuing execution for a greater sum than the act of assembly allows, the court will consider the whole as a nullity, and discharge a defendant committed under such judgment." But where his jurisdiction evidently appears on the face of the record, the settled rule has been to form no presumption . against the accuracy of the proceedings,” and his judgment, though erroneous, is binding, until reversed, on certiorari or appeal.’® 119 Penn. St. 495. 3 Phila. 258. Chest. Co. R. 203. 2125S. & R. 53. 8 60 Penn. St. 107. 8 2 Dall. 114. 9 Ibid. “5 Binn. 30. 1 Wood.6. Ibid. 291. Purd. 1° 5 Binn. 29. 708 n. M1 Tbid. 31. 5 1 Ash. 215. 1 Pitts. 271. 3 Ibid. 237. 8 121 Bro. 209. Add. 27. Purd.1146. Phila, 342. 51 Penn. St. 48. 1 Chest.Co. R. 131Y.251. 4 Ibid. 436. 467. 1 Wood.15. Ibid. 79. Thid. 291. 14 1 Dall. 135. 61 Ash. 51. Ibid. 64. 15 5 Binn. 32. 2 Clark 169. 751 Penn. St. 48. And see 1 Pears. 27..1 %9S.& R.12. 1 Pitts. 271. 260 CERTIORARI. As justices have not jurisdiction in ai cases of contract, it ought to appear upon their proceedings what is the nature of the contract on which the action is founded —and the judgment will be reversed if his jurisdiction does not appear from the record.’ In an action for trespass to real estate, it need not appear on the record, that the estate was in the county where the action arose.?_ In an action on a bond, it is no objection to his jurisdiction that the penalty exceeds $100, if the real debt do not. No execution can be set aside on certiorari, for informality, if it appear on the face of the same, that it issued in the name of the commonwealth after the expiration of the proper period of time ; and for the sum for which judgment had been rendered, together with interest thereon and costs; and a day mentioned on which return is to be made to the execution by the constable ; and that the cause of action shall have been cognisable before a justice of the peace. Whatever may be the objections to the execution, it cannot be set aside on certio- rari, unless the latter be sued out and served within twenty days after the execution issued, if the justice had jurisdiction of the cause of action. On the affirmance of a judgment on certiorari, the record is not remitted to the magistrate; but execution issues at once from the common pleas for the debt, interest and costs (or for the costs only, as the case may be), without referring the cause again to the justice.* The party in whose favor the judgment has been affirmed, may also take a scire factas against the bail, who is liable without any previous process against the principal. When, however, the certiorari is non-prossed, the record must be remitted to the justice to be proceeded in. It never was the practice here or in England to treat a non-pros as a final judgment, and in this respect there is no difference between a writ of error and a certiorari. The practice has been general, if not universal, to collect the debt in such case by an execution from the justice.® The costs in the event of a second action being brought, and a trial had, after a reversal of the prior judgment on a certiorar?, are provided for by the twenty-fifth section of the act of 1810, already mentioned. It directs that when the plaintiff removes and reverses the justice’s proceedings, and on a second trial before him, or any other justice, if judgment shall not be obtained for a sum equal to or greater than the original judgment, the plaintiff shall pay all costs accrued on the second trial, as well as those which accrued at the court, including any fees, not exceeding four dollars, which the defendant may have given his attorney in such trial, together with fifty cents per day to the defendant while attending court in defence of the proceedings ; and where the defendant removes and reverses the judgment, and it shall appear that he attended the trial before the justice, or had legal notice to attend the same, and on a final trial being had as aforesaid, the plaintiff shall obtain judg- ment for a sum equal to or greater than the original judgment, the defendant shall pay all costs accrued on the second trial before the justice of the peace, as well as those which accrued at the court before whom the proceedings have been set aside, including any fees which the plaintiff may have given to any attorney, not exceeding four dollars, to defend the proceedings of the justice, together with fifty cents per day while attending at court on the same; which costs shall be recovered before any justice of the peace, in the same manner as sums of a similar amount are recoverable. The right to recover the costs on a writ of certiorari depends on the relative amount recovered or abated by the subsequent judgment: therefore, upon the reversal, on certiorari, of an execution, on the ground that no judgment had been entered by the justice on an award of referees, and the judgment is subse- quently entered, and the money recovered, the costs of the certiorart cannot be recovered by the defendant in error from the plaintiff in error.’ A judgment of reversal on certiorart does not carry costs. See Actions at Law, V. 1 1 Bro. 339. 1 Phila. 518. 11 Ibid. 348. Seo 5658. & R. 573. 1 Wood. 211. 63P. & W. 24 2 2 Clark 169. 3 Ibid. 295. See 1 Phila. 516. 7 4 W. 450. 6 Ibid. 222. 8 Bartram v. Atkinson, Com. Pleas, Phila, 1858, 31M. 270. 2 W. N.C. 16. 2 Ohest. Co. R. 488, 489. And = 1Dall.400. 3 P. & W. 24. see 5 Binn. 204. 9 L. Bar 185. 1 Wood. 140. [ 261 ] Cigarettes. Act 7 May 1889. Purd. 483. If any person or persons shall sell cigarettes to any person or persons under the age . of sixteen years, he or she so offending shall be guilty of a misdemeanor, and upon Sohn thereof shall be sentenced to pay a fine of not more than three hundred ollars. Commissions and Discharges. Act 30 APRIL 1885. Purd. 539. Sxcr. 1. It shall be unlawful for any person or persons who has or have the posses- sion or control of, or who may hereafter become possessed of, the commission or dis- charge papers of any officer, soldier, sailor or marine of the United States army or navy, to withhold the same from the party named in such commission or discharge when such officer, soldier, sailor or marine shall demand possession thereof. It shall also be unlawful for any person or persons having the possession of any commission or discharge, as aforesaid, to wilfully destroy, mutilate, or destroy to make away with, such commission or discharge, to the prejudice of the owner thereof, or to deliver the same to any person other than the party named therein, without the written request of such officer, soldier, sailor or marine. In case of the death of the party named in such commission or discharge, when the possession may be as aforesaid, the party or parties having possession shall deliver up the same on the written request of the widow, or legal representative of such officer, soldier, sailor or marine. Sct. 2. Any person or persons who shall violate the provisions of the preceding section, or refuse to comply with the requirements thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not exceeding five hundred dollars, and imprisoned not exceeding three months, or both, or either, at the discre- tion of the court before which the conviction be made. [ 262 ] Common Carriers. I. Who are common carriers. IV. Carriers of passengers. II. Liabilities of common carriers. V. Carriage of explosives, III. Lien of common carriers. I. WHO ARE COMMON CARRIERS. ALL persons carrying goods for hire, as masters and owners of ships, hoymen, lightermen, stage-coachmen, and the like, come under the denomination of common carriers! Any person undertaking, for hire, to carry the goods of all persons indifferently, is, as to the liability imposed, to be considered a common carrier.? A wagoner, who carries goods for hire, thereby contracts the responsibilities of a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment.’ One who holds himself forth to the public to carry for hire, is a common carrier, as much in his first trip as in any subsequent one.* Owners of steamboats, carrying freight and parcels for hire, are common carriers, and subject to their liabilities ;° so of a company using steamboats and railroads ;* so of boatmen and other freighters for hire, on navigable rivers and canals.’ A ferryman is a common carrier ;° so is an express company ;? and a baggage express company.” So also is the proprietor of a stage-coach, who is in the habit of con- veying parcels not belonging to passengers ;“ and anowner of hacks ; so, of a pipe line company. But the owners of a tug-boat are not common carriers: they are merely bailors for hire ;* nor is a sleeping-car company.” II. LIABILITY OF COMMON CARRIERS. A common carrier is bound to receive and carry all goods offered for transporta- tion, subject to all the responsibilities incident to his employment, and is liable to an action in case of refusal, without sufficient cause.* A railroad company is bound to carry express matter for an express company ;"" ‘but they need not furnish equal facilities to all'such companies ;* so the owner of a ferry for carriages is bound to convey carriages and their contents.” A railroad company is responsible in damages, for a delay in transporting freight in the usual time, though caused by a “strike” on the part of its employees, without any fault in its superior officers.2® And such “strike” is no excuse for refusing to receive freight for transportation ; the duties imposed by law must be performed at whatever cost.” Common carriers are liable for any injury which happens to goods intrusted to their care, unless caused by the act of God, inevitable accident, the public enemy, or the act of the owner of the property ;” and this rule extends as well to carriers by water as to carriers by land.* But a common carrier is not relieved from responsibility, by showing that the goods intrusted to his care were injured by the act of God, if his own'negligence contributed thereto.* Where the loss is the result, 1 Selw. N. P. 358. 1 Bouv. Inst. 410. See 67 has been held not to be a common carrier. 46 Barb. 513. 32 How. Pr. 616; s. 0. 39 Barb. Mich. 38. 488. 1418 Penn. St. 40. 63 Ibid. 51. 77 Ibid. 238, 2 1 Salk. 249. 2 Greenl. Evid. 3 208. 32 Penn. 95 U.S. 297. St. 208. 2 Zab. 372. 16 4 W. N. 0. 240. 1 Rob. 0. C. 66. See 3 Penny. 31W. & 8.285. 18 Tex. 498, 78. : ap Fenn: St. 120. 16 6 How. 382. 3 Wend. 158. "37 24 Penn. St. 378, 381. 2 Flip. é 6 13 Ibid. 611. Dav. 82. Rep. 517. ‘ sr 1 2 Bailey 421. 18117 U.S. 1. 8 3 Penn. St. 342. 3 Met. (Ky.) 51. 2N.& %10M.4& W. 16. McC. 17. See 42 Ga. 528. 52N. Y¥. 32. 20 20 N. ¥. 48. 54 Ibid. 500. 9 51 N. Y. 166, 21 28 Hun 558. 10 2 Bosw. 589. And see 74 Ill. 116. 2 8S. & R. 533. 6 Johns. 160. 21 Wend. 19% 115 R. 179. 1 Pick. 53. 2 Dana 430. 11N. ¥. 485. 29Ibid. 115. 21 How. 7. 13 §3 Iowa 298. 19 Ill. 556. 33-10 Johus. 1. 21 Wend. 190. 2 Binn. 74. 9 27 Pitts. L.J.79. But alog-driving company 14 Hun 564. COMMON CARRIERS. 263 in any degree, of human aid or interference, it is not deemed the act of God, so as to exempt the carrier from responsibility... The burden of proof is upon the carrier, to prove that a loss was occasioned by a cause for which he is not responsible. The responsibility of a carrier by rail lasts until delivery to the consignee, or until the responsibility of another party begins,® A carrier may limit his common-law liability by express contract ;* or by the terms of a bill of lading, accepted by the shipper.® So, a carrier may limit his responsibility, by a general notice : but its terms must be clear and explicit, and knowledge thereof must be brought home to the passenger.6 An express company may limit its responsibility to a certain amount, unless the article be specially insured, and so specified in the receipt.’ An exception in the bill of lading of liability from loss by fire, or other unavoidable accidents, extends to all losses by fire, whether unavoidable or not, unless occasioned by the negligence of the carrier.® But a carrier cannot, by contract, exempt himself from liability for actual negli- gence ;° much less can he contract for exemption from liability for the wilful misconduct of his servants.° A receipt for goods containing a limitation of the earrier’s common-law liability, does not extend to a connecting carrier, with whom there is no such contract, though the place of destination be noted.” If the shipper of goods be guilty of any fraud or imposition upon the carrier, by concealing the value or nature of the articles, he cannot hold the carrier liable for an injury sustained in consequence of the parcel being treated as of little value. Where a carrier, after an unsuccessful attempt to find the consignee, stores the goods, his liability as such is at an end; he is subsequently liable only as a ware- houseman, on proof of negligence.® But a tender after business hours, when the consignee is unable to receive them, will not discharge the carrier. III. Lien oF cOMMON CARRIERS. It is laid down, as a general rule, that whenever any one is obliged to receive goods, to perform any duty on them, he has a lien on them at common law; for, as tJ,at imposes the burden, it also gives him the power of retaining for his indemnity.”* Yet this lien extends only to the carriage price of the particular goods on which we lien is due. Any further lien, fora general balance, must be founded on a gen- eral usage of trade, or on a particular contract to that effect between the parties.’* A common carrier has a lien on the goods carried for the freight." But this lien is inseparably associated with the possession of the goods, and is lost by an unconditional delivery ; there may, however, be a conditional delivery to the consignee, with an understanding.that the lien for freight shall not be affected.° A carrier, at common law, has no lien for back freights; such lien can only be established by proof of a general usage of trade, for which there there must be satisfactory evidence of instances sufficiently numerous and general to warrant so extensive a conclusion affecting the custom of the realm.” Even where there is an agreement that the carrier shall have a lien for back freight, he cannot retain the goods as against the consignee or real owner.” So, if an ultimate carrier pay back freight to an intermediate carrier, who has already received payment from the consignor, he has no lien therefor, as against the consignee.” A carrier, however, 129N.Y.115. See 87 Penn. St. 234. 9 23 Penn. St. 526. 30 Ibid. 242. 32 Ibid. 414. 21 Black 156. 3 Story 349. 6 McLean 76. 51 Ibid. 315. 57 Ibid. 335. 63 Ibid. 14. 69 2 Bl. C. C, 425. Tan. Dec. 519. 1 McAll. 181. Ibid. 394. 3 60 Penn. St. 109. 10 14 L. R., Ir. 157, But see 31 How. Pr. 430. 49 Watts 87. 6 W. & S. 495. 11 61 Penn. St. 81. 5 Lans,480;s. c.49 N. Y. 616. 5 55 Penn. St. 53. If a receipt for baggage 23 W.4&S. 21. 19 Penn. St. 243. contain a limitation of responsibility, printed in 18 83 Penn. St. 22. much smaller type than the body of it, soasnot 45 W. & 8.123. 3N. Y. 322. likely to be noticed at the time, it will not bind 1 Ld. Raym. 752. 25 Penn. St. 120. the passenger, unless his attention be expressly 16 Jeremy on Carriers 70. called to it, 32 Penn. St. 208. 43.N. Y.264. A 1 5 Wall. 481. Ibid. 545, 2H. D. Sm. 195. discovery of the notice by the passenger, afterhe 18 1 Black 108. 4 Den. 496, The act of 14 has entered upon his journey, does not affect his December 1863, Purd. 311, alters the rule of the rights. 48 N. Y. 212. A ticket printed in the common law, that continued possession 1s neces- English language is not notice to a German who sary in order to enforce the lien. does not understand it. 16 Penn. St. 67. 19 2 Gr. 139. ; 6 16 Penn. St. 67. 20 6 Bast 519. 2 Smith 624 1 6 Phila. 174. 21 5 Bos. & Pul. 64. 5 B. & Ald. 350. 8 67 Penn. St. 211. Ibid. 500. 48 Barb. 97. 22 37 Barb. 236. 264 COMMON CARRIEBS. who has dehvered part of the consignment, has a lien upon the remainder for the freight due upon the whole.' A delivery fraudulently obtained does not divest the carrier’s lien for freight ;*he may sue in replevin for the goods.’ A common carrier who innocently receives goods from a wrongdoer, without the consent of the owner, express or implied, has no lien upon them for their carriage, against such owner.’ Tn all cases in which commission-merchants, factors and all common carriers, or other persons shall have a lien, under existing Jaws, upon any goods, wares merchandise or other property, for or on account of the costs or expenses of carriage, storage or labor bestowed on such goods, wares, merchandise or other property, if the owner or consignee of the same shall fail or neglect or refuse to pay the amount of charges upon any such property, goods, wares or merchandise, within sixty days after demand thereof, made personally upon such owner or consignee, then and in such case, it shall and may be lawful for any such com- mission-merchant, factor, common carrier or other person having such lien as aforesaid, after the expiration of said period of sixty days, to expose such goods, wares, merchandise or other property to sale, at public auction, and to sell the same, or so much thereof as shall be sufficient to discharge said lien, together with costs of sale and advertising: Provided, That notice of such sale, together with the name of the person or persons to whom such goods shall have been consigned, shall have been first published, for three successive weeks, in a newspaper pub- lished in the county, and by six written or printed handbills, put up in the most public and conspicuous places in the vicinity of the depot where the said goods may be.* pon the application of any of the persons or corporations having a lien upon goods, wares, merchandise or other property, as mentioned in the first section of this act, verified by affidavit, to any of the judges of the courts of common pleas of this commonwealth, setting forth that the places of residence of the owner and consignee of any such goods, wares, merchandise or other property are unknown, or that such goods, wares, merchandise or other property are of such perishable nature, or so damaged, or showing any other cause that shall render it impracti- cable to give the notice as provided for in the first section of this act, then and in such case, it shall and may be lawful for a judge of the city or county in which the goods may be, to make an order, to be by him signed, authorizing the sale of such goods, wares, merchandise or other property, upon such terms as to notice, aa the nature of the case may admit of, and to such judge shall seem meet: Provided, That in cases of perishable property, the affidavit and proceedings required by this section may be had before a justice of the peace.® The residue of moneys, arising from any such sales, either under the first or second sections of this act, after deducting the amount of the lien as aforesaid, together with costs of advertising and sales, shall be held subject to the order of the owner or owners of such property.® This act relieves the carrier from the operation of the common-law rule, that con- tinued possession is necessary in order to the enforcement of his lien." An order of sale, under the 2d section, does not authorize such sale, without opening the packages and exposing the contents to purchasers.® See tit, LrEn. IV. CARRIERS OF PASSENGERS. It shall be the duty of the owner or owners of any railroad, steamboat or other conveyance for the transportation of passengers, to provide each agent, who may be authorized to sell tickets, or other certificates entitling the holder to travel upon any railroad, steamboat or other public conveyance, with a certificate, setting forth the authority of such agent to make such sales; which certificate shall be duly attested by the corporate seal, if such there be, of the owner of such railroad, steamboat or other public conveyance, and also by the signatures of the owner, 1 25 Penn. St. 120. 15 Phila, 101. 5 Act 14 December 1863 3 2. Purd. 311. 2 6 Hill 43. 6 Ibid. 2 3. 8 5 Cush. 137. 8 Gray 262. 7 68 Penn. St. 414, 4 Act 14 December 1863 2 1. Purd. 311. 8 75 Ibid. 246. 9 Phila. 70 COMMON CARRIERS, 265 or officer whose name is signed upon the tickets or coupons, which such agents may sell. It shall not be lawful for any person, not possessed of such authority, so evidenced, to sell, barter or transfer, for any consideration whatever, the whole, or any part, of any ticket or tickets, passes, or other evidences of the holder’s title to travel on any railroad, steamboat or other public conveyance, whether the same be situated, operated or owned within or without the limits of this commonwealth.? Any person or persons, violating the provisions of the second section of this act, shall be deemed guilty of misdemeanor, and shall be liable to be punished, by a fine not exceeding five hundred dollars, and by imprisonment not exceeding one year, or either or both, in the discretion of the court in which such person or persons shall be convicted.’ It shall be the duty of every agent, who shall be authorized to sell tickets, or parts of tickets, or other evidences of the holder’s title to travel, to exhibit to any person desiring to purchase a ticket, or to any officer of the law, who may request him, the certificate of his authority thus to sell, and to keep said certificate posted in a conspicuous place in his office, for the information of travellers.* It shall be the duty of the owner or owners of railroad, steamboat and other pub- lic conveyances, to provide for the redemption of the whole or any parts or coupons of any ticket or tickets, as they may have sold, as the purchaser, for any reason, has not used, and does not desire to use, at a rate which shall be equal to the differ- ence between the price paid for the whole ticket, and the cost of a ticket between the points for which the proportion of said ticket was actually used ; and the sale, by any person, of the unused portion of any ticket, otherwise than by the presenta- tion of the same for redemption, as provided for in this section, shall be deemed to be a violation of the provisions of this act, and shall be punished as is hereinbefore provided: Provided, That this act shall not prohibit any person who has purchased a ticket from any agent authorized by this act, with the bond fide intention of travelling upon the same, from selling any part of the same to any other person, if such person travels upon the same the whole distance between the points named in the said ticket, from selling the unused part of the same to the company that sold the same ; and it shall be the duty of the said company to pay for such unused portion of ticket the difference between the actual fare to point used, and the amount paid for such ticket.® This act is constitutional. But one who purchases from a scalper in another state, where such sale is lawful, a railroad ticket to a point in this state, is entitled to be conveyed to his destination, in pursuance thereof, notwithstanding its provisions." A round trip railroad ticket, not limited by its terms, is good until used, unless the purchaser was personally notified to the contrary at the time he bought it.® A rail- road company is not bound to keep a ticket agent in the office, at an ordinary way- station, to sell tickets during the stoppage of the train ; it is sufficient, that the agent was there up to the time of the arrival of the train? Any railroad or railway corporation, within this commonwealth, that shall exclude, or allow to be excluded, by their agents, conductors or employees, from any of their passenger cars, any person or persons, on account of color or race, or that shall refuse to carry in any of their cars, thus set apart, any person or per- sons, on account of color or race, or that shall, for such reason, compel or attempt to compel any person or persons, to occupy any particular part of any of their cars, set apart for the accommodation of people as passengers, shall be liable, in an action of debt, to the person thereby injured or aggrieved in the sum of five hundred dollars, the same to be recovered in an action of debt as like amounts are now by law recoverable.” : 2 Dates Any agent, conductor or employee of any railroad or railway corporation, within this commonwealth, who shall exclude, allow to be excluded, or assist in the exclu. 1 Act 6 May 1863 31. Purd. 310. 8 14 Phila. 384. 2 Thid. 3 2. 7 100 Penn. St. 259. 3 Ibid. ¢ 3. 8 105 Ibid. 142. 100 Ibid. 259. $ Ibid. 2 4. 9 26 Pitts. L. J. 117. 5 Ibid. 35. So amended hy act 10 April 1872. 0 Act 22 March 1867 3 1. Purd. 1807. P.L. 51 266 COMMON CARRIERS. sion, from any of their cars, set apart for the accommodation of passengers, any person or persons, on account of color or race, or who shall refuse to carry such per- gon or persons, on account of color or race, or who shall throw any car or cars from the track, thereby preventing persons from riding, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall pay a fine not exceeding five hundred dollars, nor less than one hundred dollars, or be imprisoned for a term not exceeding three months, nor less than thirty days, or both, at the discretion of the court.! Independently of this act, the separation of black and white passengers in a public conveyance was the subject of a sound regulation to secure order, promote comfort, preserve the peace and maintain the rights of both carriers and passen- gers.2 And a carrier of passengers has still a right to designate the car which travellers shall enter, without being obliged to give any reason for the selection.’ But carriers of passengers are bound to carry all who offer themselves, against whose personal character and conduct there are no just objections, provided they have sufficient accommodations; they have no more right to refuse a passenger than an innkeéper has to turn away a guest.‘ Each passenger upon a railroad, shall have the right to have carried in the car, or place provided for that purpose, in the train in which he or she may be a pas- senger, his or her personal clothing, not exceeding, inclusive of the trunk or box in which it may be contained, one hundred pounds in weight, and three hundred dollars in value.® No railroad company shall, under any circumstances, be liable for loss or damage to any baggage or property belonging to any such passenger, beyond the said sum of three hundred dollars, unless it shall be proven that the excess in value thereof over that sum, was truly declared to the agents of the company, at the time of its delivery for transportation, and the sum charged by the railroad company for such transportation over and above passage fare was paid: Provided, however, That the said declaration shall not relieve the claimant from proving the actual value of the articles alleged to have been lost or damaged ; but in no event shall there be any recovery beyond the value thus declared.® , No railroad company providing a car or other place for the deposit of passengers’ baggage shall, under any circumstances, be liable for loss of, or damage to, any articles or property whatsoever, not there deposited by the passenger, or which are placed by him or her in the car in which he or she is to be transported." This act has no application to the carriage of baggage by a foreign corporation, in another state? Where a passenger’s trunk is lost, the carrier is prima facie liable for its value ;* but not for the value of other articles than ordinary wearing ‘apparel.’ the reasonable tools of a carpenter.” A carpenter, however, may recover the value of his tools contained, with his clothing, in a trunk, lost by the carrier; it being found that they were _No railroad, railway or other transportation company, having accepted the pro- visions of the seventeenth article of the constitution, or hereafter organized, shall grant free passes, or passes at a discount, to any person except to an officer or employee of the company issuing the same; and any person signing or issuing any such free passes, or passes at a discount, except to officers or employees as aforesaid, shall be subject to pay a fine to the commonwealth not exceeding one hundred dollars: Provided, That nothing herein contained shall be held to prevent the use of passes granted previous to the adoption of the present constitution, the limited time whereof has not expired, nor to prevent the use of passes granted for a valuable consideration, under contracts made between corporation and individuals, or between one corporation and another.” Riding on a free pass does not render the person using it a trespasser, nor pre- vent him from recovering for injuries caused by the negligence of the company ; the conductor should collect the regular fare." 1 Act 22 March 1867 3 2. Purd. 1807. 2 65 Penn. St. 209. 4 Phila. 255. 95 U. 8.485. 3 86 Penn. St. 421, Paxson, J. 4 1 Bouv. Inst. 417. 2 Sum. 221. 5 Act 11 April 1867 21. Purd. 1808, 6 Ibid. 7 Tbid. 2. 3 8 83 Penn. St. 316. 9 16 Ibid. 67. 10 5 W.N. C. 292. 1114 Penn. St, 129. 12 Act 15 June 1874 2 1. Purd. 1808. 13 3 Penny. 190. See 14 How. 468. 16 Ibid. COMMON CARRIERS. 267 No act of the general assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property; and, in case of death from such injuries, the right of action shall survive, and the general assembly shall prescribe for whose benefit such action shall be prosecuted. No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes, different from those fixed by general laws regulating actions against natural persons ; and such acts now existing are avoided. No action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prose- cute the suit to final judgment and satisfaction.? Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured, during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned? The persons entitled to recover damages for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relative; and the sum recovered shall go to them in the proportion they would take his or her personal estate, in case of intestacy, and that without liability to creditors.‘ The declaration shall state who are the parties entitled in such action; the action shall be brought within one year after the death, and not thereafter.® In all actions now or hereafter instituted against common carriers or corporations owning, operating or using a railroad as a public highway, whereon steam or other motive power is used, to recover for loss and damage sustained, and arising either from personal injuries or loss of life, and for which, by law, such carrier or corpo- ration could be held responsible, only such compensation for loss and damage shall be recovered as the evidence shall clearly prove to have been pecuniarily suffered or sustained. The constitution of 1874 abrogated all limitations of the amount to be recovered in actions for negligence, contained in existing laws ;’ and all special laws limiting the time for bringing such actions: but it does not repeal the general limitation of one year contained in the act of 1855.° A railroad company is responsible for the sufficiency of its road, and it is only necessary to show an injury to person or property, sustained through the negligence of the company or its officers, to recover. The mere fact of a collision, is prima facie evidence of negligence ;“ but this rule only applies to cases of injury to a passenger ; in other cases, the burden of proving the defendant’s negligence is on the plaintiff? A railroad company is responsible to its train-servants and employees for injuries received by them, in consequence of neglect of duty by a conductor in charge of the train, with the right to direct its movements, and control the persons employed upon it.” An action will lie in this state for negligence resulting in death, though the injury and death occurred in another state, whose laws give a like remedy.“ The right of action is a transistory one.” Where the deceased leaves a widow and parents, the right of action is exclu- sively in the widow ;6 the widow and minor children ought not to be joined as plaintiffs.” A parent may recover for the death of an adult son, if the famil telation be shown to continue ;* otherwise not;® but the mother of a bastard child is not within the act.° Where the suit is for the benefit of minor children, the 1 Const. Art. III. 2 12. 11 90 Penn. St. 135. 94 Ibid. 351. 2 Act 15 April 1851 2 18. Purd. 1603. 12 87 Ibid. 34. 97 Ibid. 70. 93 Ibid. 449. 96 8 Ibid. 2 19. Ibid. 83. 4 Act 26 April 1855 3 1. Purd. 1603. 13-112 U.S. 377. 5 Ibid. 2 2. 1k 16 W. N.C. 381. § Act 4 April 1868 3 2. Purd. 1604. 16 103 U.S. 11. 7 103 Penn. St. 425. 14 W. N.C. 505. 16 100 Penn. St. 95. 8 25 Pitts. L. J. 184. 41 Leg. Int. 346. 1113 W.N. C. 389. And see 84 Penn. St. 419. 911 Penn. St. 141. 30 Ibid. 242. 18 55 Penn. St.499. 67 Ibid. 300. 90 Ibid. 15. 10 30 Ibid. 242. 1 Phila. 543. 13 Leg. Int. 4. 19 100 Ibid. 95. See 6 Phila. 178. 5 Exch. 787. 20 11 W.N. C, 120. 268 COMMON CARRIERS. amount recovered is to be distributed among them, as in case of intestacy.’ The constitution of 1874 has not abrogated the right of the administrator to sue, In a proper case.’ : ro Meaee The damages to be recovered by the surviving relatives for an injury resulting in death, are confined to such as are capable of a pecuniary estimate ; nothing can be allowed for the mental sufferings of the survivors, or the corporal sufferings of the injured party.® But, nevertheless, the amount of damages must be left mainly to the sound sense and deliberate judgment of the jury, applied to all the facts and circumstances of the case.t Life, by law, has a value, for the loss of which the survivors have a right to be compensated, in view of its circumstances; the sound sense of the jury must ascertain the pecuniary value, from the evidence in the case, as best they may. The act of 1868 was but declaratory of the law, as already fixed by the decisions of the supreme court.® : . When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee: Provided, That this section shall not apply to passengers.”” This act is constitutional, as a police regulation.’ Under it, any one, not a pas- senger, who enters the depot of a railroad company, takes the risk upon bimself. If any person or persons in the service or employ of a railroad or other trans- portation company, doing business in this state, shall refuse or neglect to obey any rule or regulation of such company, or, by reason of negligence or wilful misconduct, shall fail to observe any precaution or rule, which it was his duty to obey and observe, and injury or death to any person or persons shall thereby result, such person or persons so offending shall be deemed guilty of a misdemeanor, and on conviction thereof shall be sentenced to pay a fine not exceeding five thousand dollars, and to undergo an imprisonment in the county jail or in the state peniten- tiary not exceeding five years: Provided, That nothing in this act shall be construed to be a bar to a trial and conviction for any other or higher offence, or to relieve such person or persons from liability in a civil action for such damages as may have been sustained.” It shall be the duty of the prosecuting attorney of the city or county where any such injuries may have happened, as soon as he shall have notice of the same, to take immediate action and legal measures for the apprehension and arrest of the person or persons who may be charged with causing the injuries as foresaid, and to direct subpcenas to issue from any justice of the peace to witnesses, to appear and testify on the part of the commonwealth touching such offences charged as aforesaid, and to prosecute the offenders as in other cases of misdemeanor: And provided further, That no conviction of the employees shall relieve the company from any liability for any such injuries or death." This act punishes both negligence and wilful misconduct; they are distinct offences; sleeping on duty is negligence per se.™ V. CARRIAGE OF EXPLOSIVES. If any person shall knowingly deliver, or cause to be delivered, to any canal, rail- road, steamboat or other transportation company, or to any person, firm or corpora- tion engaged in the business of transportation, any nitro-glycerine, dualin, dynamite, gunpowder, mining or blasting powder, guncotton, phosphorus, or other explosive material adapted for blasting, or for any other purpose for which the articles before mentioned, or any of them, may be used, under any false or deceptive invoice or description, or without informing such person, firm or corporation, in writing, at 1 44 Penn. St. 175. T Act 4 April 1868 31. Purd, 1604. 2 95 Ibid. 158, 8 76 Peun. St. 506. 5 31 Ibid. 372. 33 Ibid. 318. 36 Ibid. 298, 912 Phila, 394. 89 Penn. St. 193. See 81 100 Ibid. 98. 5 Clark 444. 40 Leg. Int. 86. Ibid. 366. 92 Ibid. 82. 104 Ibid. 511. 15 Leg, And see 87 Penn. St. 365. Int. 459. 4 5 Wall. 90. 10 Act 22 March 1865 21. Purd. 534. 5 67 Ponn. St. 300. Wl Ibid. 2 2. 6 Ibid 12 3 Brewst. 554. And see 26 Leg. Int. 48, COMMON LAW. 269 or before the time when such delivery is made, of the true nature of such, and without having the keg, barrel, can or package containing the same plainly marked with the name of the explosive material therein contained, together with the word “dangerous” article, such person shall be guilty of a misdemeanor, and upon con- viction thereof, shall be sentenced to imprisonment for thirty days, and to pay a fine of one hundred dollars ; and shall be responsible for all damages to persons or property, directly or indirectly resulting from the explosion or combustion of any such article.* It shall and may be lawful for any officer or agent of any person, firm or corpo- ration engaged in the business of transportation, upon affidavit made of the fact that any package tendered for transportation, not in compliance with the provisions of the first section hereof, is believed to contain explosive material such as afore- said, to require such package to be opened, and to refuse to receive any such package, unless such requirement be complied with; and if such package be opened, and found to contain any explosive material, the said package and its con- tents shall be forthwith removed to any lawful place for the storing of gunpowder; and after conviction of the offender, or after three months from such removal, the said package, with its contents, shall be sold at public sale, after the expiration of ten days from notice of the time and place of such sale, published in one newspaper in the county where such seizure shall have been made; and the proceeds of such sale, after deducting therefrom the expenses of removal, storage, advertisement and sale, shall be paid into the treasury of the said county.’ Common Law. THE common law and the statute Jaw flow originally from the same fountain— the legislature. The statute law being the will of the legislature remaining on record in writing—the common law, nothing else but statutes anciently written, but which have been worn out by time. All the laws of England began by consent of the legislature; and whether it be now law by custom, by usage, or by writing, it is the same thing.® : The ‘‘common law” mentioned in the 7th art. of the amendments of the consti- tution of the United States, is the common law of England, and not that of any individual state‘ The constitution and laws of the United States are predicated in the existence of the common law.’ The common law of England has always been in force in Pennsylvania.® = ; In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the direction of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeable to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect.’ : The common law is, in many particulars, much more extensive and important than the statute. It is often denounced, yet it is the great guardian of our rights. In many respects, it is so sacred, that what is the common law of England, is, in this country, placed beyond legislative interference, by being incorporated in the consti- tutions of the different states. It was brought here by the colonists, and was considered the birth-right of the people. Wherever the conquests of Hngland reach, to whatever quarter her colonies extend, the common law goes with them. That it was brought here, and that we inherit it, was never doubted.’ The com- mon law will be presumed to prevail in a sister state, in the absence of any evidence that it has been changed by statute.® 1 Act 6 May 187431. Purd. 312. 7 Purd. 77, 543, For the decisions on this 2 Thid. 2 2. statute, see tit. “ Acts of Assembly,” IT. 3 Wilmot, C. J., 2 Wils. 348-51. 81 Phila. 536. And see 4 Paige 178. 15 * 1 Gallis. 20. Wend. 111. 13 How Pr. 454. 5 Bald. 558. ® 3 Daly 288. § 1 Dall. 67. [ 270 ] Common Scold. Tue offence of being a common scold is indictable, and may be punished by fine and imprisonment at the discretion of the court.’ . The punishment of the ducking stool cannot be inflicted in Pennsylvania? The revised Penal Code provides that every offence whatever, not thereby specially pro- vided for, may be punished as heretofore.* ; To convict of this offence, it must be shown to be to the common nuisance of the neighborhood.* In such prosecution, the district attorney will not be ordered to furnish a bill of particulars.® Compounding Offences. IF any person having a knowledge of the actual commission of any misprision of treason, murder, manslaughter, rape, sodomy, buggery, arson, forgery, counter- feiting or passing counterfeit money or notes, burglary, housebreaking, robbery, larceny, receiving stolen goods or other property by persons knowing them to be stolen, kidnapping, bribery, perjury or subornation of perjury, shall take money, goods, chattels, lands or other reward, or promise thereof, to compound or conceal, or upon agreement to compound or conceal, the crimes aforesaid, every person so offending shall be guilty of a misdemeanor, and on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding three years.® This section, which embraces the misprision of felony, and the theft-bote of the common law, by which these crimes were punished by fine and imprisonment, is essentially new to our statute law. The only existing statutory punishment appli- cable to this class of crimes, is that found in the 32d section of the act of the 31st of May 1718,’ which makes any person who shall agree or compound or take satis- faction for any stealing or goods stolen, subject to forfeit twice the value of the sums agreed for or taken. The concealment of any of the infamous crimes embraced in this section, for the consideration of money, or property given or paid, as the price of such concealment, is a crime made so base from the motives which have induced it, as to render it the proper subject of penal infliction. Simple conceal- ment, from mistaken notions of vity and compassion, or generous forgiveness, are not embraced in the enactment.® Though the bare taking again of a man’s own goods which have been stolen, without favor shown to the thief, is no offence,® yet, where he either takes back the goods, or receives other amends, on condition of not prosecuting, this is a misde- meanor punishable by fine and imprisonment.” An agreement to put an end to an indictment for a misdemeanor is unlawful,” unless it be with the consent of the court. And there can be no recovery on a note or mortgage given on such consideration ;¥ if, however, the contract be fully executed the money paid cannot be recovered back.! Compounding informations on penal statutes is an offence at common law. Some- what analogous to the offence of compounding felony is that of misprision of felony.® The law permits the compromise of an offence, though made the subject of a criminal prosecution, for which the injured party might recover damages in an action; but if the offence be of a public nature, no agreement can be valid that ia founded on the consideration of stifling a prosecution of it.® A note given in settle- 1125S. & R. 220. 52 Penn. St. 243. 3 Cr. C. 9 Hawk. P. 0. b. 1, ch. 50, $7. C. 618, 620. 10 Thid. 2 5. 2128. &R. 220. 1 2 Wils. 341. 8 Purd. 560. 1299 Penn. St.116. 97 Ibid. 361. 90 Ibid. 49. 440. H. Rec. 176. 2 Luz. L. Reg. 170. 17 W. N.C. 67. 5 Ibid. 174, Com. v. Delaney, Mayor’s Court, 18 1 Wood. 428. See 93 Penn. St. 251. Phila., 23 Oct. 1829 MS. 14 4 Bl. Com. 136. 6 Act 31 March 1860 3 10. Purd. 483. 1 Rose. Or. Evid. 311. 71 Sm. 123, ie 28 Vt. 309. 5 Am. L. Reg. 420. 43 Leg. Int 8 Report on the Penal Code, 13. CONCEALED WEAPONS. 971 ment of a prosecution for obtaining money by false pretences, is valid and binding; it is competent for the prosecutor to compound such offence, which is but a misde- meanor.’ So, of a prosecution for assault and battery.? In all cases where a person shall, on the complaint of another, be bound by recognisance to appear, or shall, for want of security, be committed, or shall be indicted for an assault and battery or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done with intent to commit a felony, or not being an infamous crime,’ and for which there shall also be a remedy by action, if the party complaining shall appear before the magistrate who may have taken recognisance or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate, in his discretion, to discharge the recognisance which may have been taken for the appearance of the defendant, or in case of committal, to discharge the prisoner, or for the court also, where such proceeding has been returned to the court, in their discretion, to order a nolle prosequi to be entered on the indictment, as the case may require, upon payment of costs: Provided, That this act shall not extend to any assault and battery, or other misdemeanor, committed by or on any officer or minister of justice.* Concealed Weapons. Aot 18 Marca 1875. Purd. 483. ANY person within this commonwealth who shall carry any fire-arms, slung-shot, handy-billy, dirk-knife, razor or any other deadly weapon, concealed upon his person, with the intent therewith unlawfully and maliciously to do injury to any other person, shall be deemed guilty of a misdemeanor; and upon the conviction thereof, shall be sentenced to pay a fine, not exceeding five hundred dollart, and undergo an imprisonment, by separate or solitary confinement, not exceeding one year, or either or both, at the discretion of the court; and the jury trying the case may infer such intent as aforesaid, from the fact of the said defendant carrying such weapons in the manner as aforesaid.® The act of 3d May 1850, for establishing a uniform system of police in Philadel- phia, provides that when any persons, to the number of twelve or more, shall be therein unlawfully, riotously and tumultuously assembled, and shall refuse to dis- perse, after proclamation made, they shall be deemed guilty of a misdemeanor, and, on conviction, sentenced to solitary confinement at hard labor in the county prison for not less than one month, nor more than two years; and that any person arrested, upon whose person, or in whose possession, shall be found fire-arms, or any other deadly weapon, shall be deemed guilty of an intention to riot, whether said fire-arms or deadly weapon shall be used or not, unless the contrary can be satisfactorily established, and punished accordingly.® : : It has been ruled by the court of quarter sessions of Philadelphia, that this act is unconstitutional, so far as it applies to the carrying of arms for self-defence; and that it is competent for the accused to rebut the unlawful intent raised by the statu- tory provision.’ But it is hard to understand, how it is, that a party who is in the exercise of an admitted constitutional right, can be called upon to prove, affirma- tively, that he had no unlawful intent in so doing. The true idea appears to have been that laid down by the supreme court of Georgia, to wit, that although such acts may be valid: yet, if they cut off the exercise of the right of the citizen to bear arms, altogether, or, under color of prescribing the mode, render the right itself useless, they are unconstitutional and void.® And it is to be remembered, that if the theory of Judge Woods be a sound one, the right to bear arms is among those secured to the citizens of the United States, by the 14th amendment to the constitution? 116 W. N.C. 222. 1 Leg. Gaz. R. 76. 5 This act is constitutional. 77 Penn. St. 470. 21 Phila. 26. 1 Luz. L. Obs. 58. See 100 6 Purd. 483, note e. Penn. St. 561. 92 Ibid. 241. ‘7 § Phila. 610. 8 See ante 32, note 7. 8 1 Kelly 243. | £ Act 31 March 1860 29. Purd. 547 9 13 Int. R. Rec. 181. See 116 U.S. 252. [ 272) Conspiracy, [See Mucuanios’ Unions. ] I. Provisions of the Penal Code. II. Judicial decisions. L Aor 31 Marce 1860. Purd. 483. Sror. 127. If any two or more persons shall conspire or agree, falsely and mali- ciously, to charge or indict any other person, or cause or procure him to be charged. or indicted, in any court of criminal jurisdiction, the person so offending shall be guilty of a misdemeanor, and on conviction be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, either at labor by separate or solitary confinement, or to simple imprisonment, not exceeding three years, at the discretion of the court. Sxor. 128. If any two or more persons shall falsely and maliciously conspire, and agree to cheat and defraud any person, or body corporate, of his or their moneys, goods, chattels or other property, or to do any other dishonest, malicious and un- lawful act, to the prejudice of another, they shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding two years. Aot 14 June 1872. Purd. 484. Scr. 1. It shall be lawful for any laborer or laborers, workingman or working- men, journeyman or journeymen, acting either as individuals or as the member of - any club, society or association, to refuse to work or labor for any person or persons, whenever, in his, her or their opinion, the wages paid are insufficient, or the treat- ment of such laborer or laborers, workingman or workingmen, journeyman or journeymen, by his, her or their employer is brutal or offensive, or the continued labor by such laborer or laborers, workingman or workingmen, journeyman or journeymen, would be contrary to the rules, regulations, or by-laws of any club, society or organization to which he, she or they might belong, without subjecting any person or persons, so refusing to work or labor, to prosecution or indictment for conspiracy under the criminal laws of this commonwealth: Provided, That this act shall not be held to apply to the member or members of any club, society or organization, the constitution, by-laws, rules and regulations of which are not in strict conformity to the constitution of the state of Pennsylvania, and to the con- stitution of the United States: Provided, That nothing herein contained shall prevent the prosecution and punishment, under existing laws, of any person or persons who shall, in any way, hinder persons who desire to labor for their employers from so doing, or other persons from being employed as laborers. II. The offence of conspiracy, according to all the authorities, consists, not in the accomplishment of any unlawful or injurious purpose, nor in any one act moving towards that purpose ; but in the actual concert and agreement of two or more persons to effect something, which being so concerted and agreed, the law regards as the object of an indictable conspiracy.? The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or a lawful act for an unlawful purpose. And the offence is complete when the confederacy is made.® 1 The act 20 April 1876, Purd. 2017, provides that this proviso shall be so construed that the use of lawful or peaceful means, having for their object a lawful purpose, shall not be regarded as “in any way hindering” persons who desire to labor; and that the use of force, threat or menace of harm to persons or property shall alone be regarded as in any way hindering persons who desire to labor for their employers from so duing or other porsons being employed as laborers See 15 Phila. 393. 2 Whart. Cr. L. 2 2291 n. 8 96 Penn. St. 56, 3 Pitts. 143. 2 Pars. 341. 2 Pars. 341. 12 Phila. 580. 2 Mass, 337. CONSPIRACY. 273 All who accede to a conspiracy, after it is formed, and while it is in execution, and all who, With knowledge of the facts, concur in the plans originally formed, and aid in executing them, are fellow-conspirators. Their concurrence, without proof of an agreement to concur, is conclusive against them. They commit an offence when they become parties to the transaction, or further the original plan.’ A combination is a conspiracy in law, whenever the act to be done has a neces- sary tendency to prejudice the public, or oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief. Every association, therefore, is criminal, whose object is to raise or depress the price of labor beyond what it would bring if it were left without artificial excitement.? A confederacy to assist a female infant to escape from her father’s control, with a view to marry her against his will, or to seduce her, is indictable at common law.® -A conspiracy to publish a libel, or to defame by spoken words not actionable, would be equally a subject of prosecution by indictment.* A conspiracy to commit an assault and battery is indictable ;> so is a conspiracy to cheat and defraud.® A conspiracy entered into to induce and procure others to do an act prohibited, under a penalty, by statute, is an indictable offence, whether the object were effected or not.’ All conspiracies to injure others, by preventing, obstructing or defeating the course of public justice, by fabricating or suppressing evidence, are indictable.® A conspiracy is in its nature a joint offence; Jess than two persons cannot be accused of it ; and where this offence is charged, the court cannot award a separate trial.2 A man and his wife, being in law but one person, cannot be convicted of the same conspiracy, unless other parties are charged.” The wife of one conspirator is not a competent witness either for or against the others." But an indictment will lie against one of two conspirators.” An indictment lies for any conspiracy to vex or annoy another—for instance, to hiss a play or an actor, right or wrong.” To constitute a conspiracy, the purpose to be effected by it must be unlawful, either in respect of its nature, or in respect of the means to be employed for its accomplishment; and the intended act, where it has not a common-law name to import its nature, must, in order to show its illegality, be set forth in the indictment.“ Where concert is part of a criminal act, it is not the subject of indictment as a ‘conspiracy to commit the act. There is no such offence as a conspiracy between a man and a woman to commit adultery. Parties may be indicted for a common-law conspiracy, notwithstanding the statute.® The offence of conspiracy to commit a misdemeanor is not merged in the commission of the offence.” A combination among workmen, to compel another to employ a particular class, and to drive away all others, is a criminal conspiracy.* But a combination not to work, except at certain prices, is not indictable, so long as the parties do not attempt to coerce others.® 8 2 Tiill 282. 1 4 Wend. 259. Bright. 143. 1 Greenl. Evid. 111, 282. 2 Ibid. 3 90. 2 Whart. Cr. L. 92291 n. 1 Journ. Juris. 225, Bright. 36. 2 Pars. 59. And see 68 Penn. St. 173, 1 Brewst. 511. 15 Leg. Int. 268. 35 W.&S. 461. 5 Rand. 627. 3 Burr. 1434, * 8 Penn..St. 239, per Gibson, 0. J. 3L Law Rev, 150. 5 29 Ibid. 296. 6 15 Ibid. 272. 2 Clark 297. 7 23-Ibid. 355. See 2 Del. Co. R. 449; which a affirmed by a divided court, in 17 W. N. 0. 18 9 2 Ash. 81. 8 Phila. 380. 10 15 Leg. Int. 268, Whart. Cr. L. 3 2343. 11 2 Ash. 31. 12 91 Penn. St. 145. 13 2 Camp. 369. 8 Penn. St. 240, per Gibson, C.J. 14 5 Penn. St. 65. 16 14 Ibid. 226. 1 96 Ibid. 56. 17:1 Gr. 224, 2 Pars. 341. 18 3 Pitts. 143. 19 Lewis’ Cr. L. 626. See 15 Phila. 393, [ 274 ] e Constables. I. Of their antiquity and general duties. VI. Duties in regard to elections. II. Of their election and qualification. VII. Actions against constables. III. Appointment of deputies. VIII. Miscellaneous provisions. IV. Removal for misconduct, é&c. IX. Forms of process. V. Duties and liabilities in civil cases. I, OF THE ANTIQUITY AND GENERAL DUTIES OF CONSTABLES. Ir the great antiquity of the office, or the extensive powers intrusted to him whe exercises it, could inspire men faithfully, and with a single eye to the public weal, to discharge the duties of any office, then would the duties of the office of con- stable be certainly discharged with uprightness, and a conscientious determination to command public respect and confidence, All the old English law-books are full of the early appointment and confidence reposed in this officer. So entirely is the origin of the office lost in the mists of antiquity, that the learned, who delight in devoting themselves to such inquiries, have been unable to determine whether the origin of the word constable was to be ascribed to the Saxon language, or to that of the eastern empire. The later writers incline to the latter opinion. Which of them, or whether either of them, is right, is, comparatively to ascertaining the rights and duties of the office, a matter of little moment. He is acknowledged by the law to be “one of the most ancient officers in the realm for the conservation of the peace.’ Lord Bacon observes, that though the high constable’s authority hath the more ample circuit, ‘yet I do not find,” says he, ‘‘ that the petty constable is subordinate to the high constable, or to be ordered or commanded by him.” ‘The original and proper authority of a high constable, as such, seems to be,” says Burns, “ the very same and no other, within his hundred, as that of the petty constable within his vill (village), and therein, most probably, he is coeval with the petty constable.” “ Every high and petty constable are, by the common law, conservators of the peace.’ He may arrest any person without a warrant who shall make an affray or assault upon another, in the presence of the constable: and if it be inconvenient to take him before a justice, he may take him to prison until he shall find surety of the peace. But he may not arrest any man, on the complaint of another, without he has a warrant. In the discharge of these highly responsible duties, the con- stable should be especially careful never to permit his feelings to be enlisted, or his passion aroused. Let him so conduct himself that every sensible bystander shall be disposed to take part with him, and he may be sure that he is faithfully discharging his duty. It is no inconsiderable evidence of the confidence and authority reposed ina constable, that “if he shall be assaulted in the execution of his office, he need not go back to the wall, as private persons are bound to do; and, if in the striving together the constable kills the assailant, it is no felony; but if the constable is killed, it shall be considered premeditated murder.”® The necessity of a constable being temperate in all his habits, is manifest from the power reposed in him. A habit of drunkenness from liquor, or passion, should disqualify any man from being elected constable. The peace and safety of the community are greatly endangered when committed to the care of a constable of quick temper, violent passions, or habits of intoxication, In this commonwealth, where the people elect the constable from among themselves, the election of such a constable is a reproach to the whole community. Every man, woman and child, in the district, is interested in the election of an honest, active and conscientious man as constable, ‘He should be honest to execute his office truly, without malice, affection or partiality—he should have knowledge to know what he ought to do, and ability, as well in estate as body, that he may intend and execute his office, when need is, diligently, and not for 1 4 Inst. 265. 22 Hawk. P. C. b. 2,0.8, 36, Dalt, ch. 1. * Hale H.P. C, 37. CONSTABLES. 975 impotence or poverty neglect it.” Aged persons, incapable by weakness, should never be elected to do the duties of this arduous office. In Pennsylvania, the constable exercises all the common-law rights and privileges which that officer exercises in England, except, which is very rare, where they have been modified by our constitution or laws. In addition, constables in Pennsylvania have many civil duties imposed upon them by acts of assembly, which are unknown to such officers in England. The sheriff is the executive officer of the courts where he attends, so is the constable the executive officer of the alderman or justice of the peace where he attends. He is bound to serve all legal process which the magistrate shall issue, and he is punishable if he do not serve it, unless he be able to show that he was otherwise officially engaged at the time he was called upon to execute the process. In case of resistance by a defendant to a constable, in the execution of civil process issued by a justice of the peace, he has the same power as the sheriff to raise the power of the county for his assistance. There is as much reason why constables, in enforcing the law, should be invested with the power necessary to put down resistance and preserve the peace, as there can be in the case of sheriffs. Acquiescence in the laws is the duty of every citizen; and in a government of laws, such as ours emphatically is, it is the duty of every citizen to aid in their execution. If a person refuse to assist the constable, when required, on resistance being made, he is indictable for such refusal? II. ELEcTION AND QUALIFICATION OF CONSTABLES. Each of the electors of each borough, ward and township shall annually vote for only so many candidates for the office of constable as there shall be persons required to fill said office, in their respective boroughs, wards or townships ; the candidates receiving the highest number of votes shall be declared elected.’ All elections for city, ward, borough and township officers, for regular terms of service, shall be held on the third Tuesday of February? No person shall be eligible to any township office, unless he be an elector of the township for which he shall be chosen.* The acting constable in every ward, town, township or district in this common- wealth shall, within six days after the election for a constable or constables has been. held, give notice in writing, to the person or persons who shall be chosen, of his or their election to the said office; and if such acting constable shall neglect so to do, he shall forfeit to the commonwealth the penalty of sixty dollars’ Tt shall be the duty of every person elected to the office of constable in any town- .ship, to appear on the first day of next court of quarter sessions of the same county, to accept or decline such office; and if any person so elected and duly notified thereof, shall neglect or refuse so to appear, he shall forfeit to the township the sum of forty dollars, to be levied by order of the court.® The court to which a return as aforesaid shall be made, shall appoint the person returned to be constable of the township for the term of one year from the date of his appointment, and until a successor shall be duly appointed, if it shall appear to the satisfaction of the court that he possesses a freehold estate in his own right, clear of all incumbrances, of the value of at least one thousand dollars, or if he does not possess such freehold estate, he shall give bond with at least one suffi- cient surety, to be approved of by the court, in the sum and manner hereinafter directed." If the electors of any township shall fail to elect a person for the said office, or if the person returned should be incompetent with respect to estate or unable to give 15 Whart. 437, 440, 2 Act 9 April 1849 2 3. Purd. 372. In Phila- delphia, constables are to be elected for five years by act 18 March 1864. Purd. 372, note q. The term is fixed at three years by acts 14 February 1889 and 4 May 1889, Purd. 373. 3 Const. art. VIII. 23. See 3 W. N. C. 477. 4 Act 15 April 1834 3 84. Purd. 1638. 5 Act 1 March 1799 2 6. Purd. 373. The act 2 July 1839 2 54, provides that it shall be the duty of the inspectors and judge to make out a certificate of the election of each township offi- cer, which shall be signed by them and deliv- ered to the constable of the proper ward, district or township, and by him delivered to the said officer or left at his usual place of abode, within six days thereafter. 6 Act 15 April 1834 3 107. Purd. 373. T Ibid. 2 108. 276 OONSTABLES. the required security, or should refuse to take upon themselves the said office, or in the event of a vacancy in the office, by death or otherwise, it shall be the duty of the said court to appoint some other respectable person possessing a freehold estate of the value aforesaid, or who shall give the security required, to serve as constable until the next annual election, and until a successor be duly appointed." If any person who shall be duly elected and appointed a constable, or who shall be appointed as such by the court, in the cases hereinbefore mentioned, and who shall possess a freehold estate of the value aforesaid, shall refuse or neglect to take upon himself the said office, or shall not procure a deputy to undertake the duties thereof, he shall be fined by the court in the sum of forty dollars, for the use of the proper township.? Provided, That no person shall be liable to the penalty aforesaid, who shall have served personally, or by deputy, in the office of constable of the same township, within fifteen years of his said election or appointment, or having been elected or appointed within that period shall have paid the penalty aforesaid.’ The bond to be given by a constable shall be in such sum, not less than five hundred dollars, nor more than three thousand dollars, as the court shall direct, and shall be taken by the clerk of the court, in the name of the commonwealth, with conditions for the just and faithful discharge by the said constable of the duties of his office; and such bond shall be held in trust for the use and benefit of all persons who may sustain injury from him in his official capacity, by reason of neglect of duty, and for the like purposes and uses as sheriff’s bonds are given and held.‘ Suits against the sureties mentioned in the 3d section of this act shall not be sustained, unless the same be instituted within three years after the date of such obligation.® In every case in which any pecuniary penalty or forfeiture is imposed by this act, the proceedings for the recovery of the same shall be by indictment in the court of quarter sessions of the proper county, or to be recovered as debts of equivalent amount are by law recoverable, unless herein otherwise specially provided: Provided always, That aldermen or justices of the peace shall not have jurisdiction of any suit or action, for the recovery of any penalty imposed by this act for official misconduct, and that such suit or action, when brought in the court of common pleas of the proper county, shall have a preference for trial over all other actions.® Nothing in this act contained shall be so construed as to repeal any special pro- vision heretofore made by law, for any city, borough, district or township in this commonwealth.” A constable is not required by the act of 1834, to file a copy of his official oath with the town clerk. The court will not refuse to commission a constable elected. by the people, on the ground of immorality, and an act of extortion in a former term? Ifa constable’s bond be found among the records of the office, in its proper place, though no entry of the approval and filing of it be shown, it will be presumed.” The bond may be amended, in case of error apparent on its face. The sureties cannot take advantage of a neglect to swear the constable, or to approve his bond." A condition that the constable shall “ execute all writs and process to him directed,” is not greater than required by law.® The sureties are not responsible for an exe- cution delivered to their principal by another officer; to charge them, it must be delivered to him, in his official character, by the justice.* The sureties are liable for the act of the officer in levying upon the goods of astranger ; for money collected under a distress-warrant ;© and for money collected under a warrant against a constable of an adjoining township.” But they are not liable for his refusal to execute process which he was not bound to accept.!® A party aggrieved may either 1 Act 15 April 1834 3109. Purd. 373, 8 1 Bro, 349, ; Ibid. 2 110. 10 7 Penn. St. 241. See2S.& R. 420. Thid. ¢ 111. 1 1W. N.C. 326. Ibid, 533. 4 Ibid. ¢ 112. 12-7 Penn. St. 240, 5 Act 29 March 1824 3 4, Purd. 374, This 13 Ibid. section is still in foree. 33 Penn. St. 199. 66 4 2 Ibid. 49. Thid. 172, 2 W.N. 0. 321, 1 5 Binn. 184. 6 W. & S. 513, 6 Act 15 ae 1834 3115. Purd. 374. 16 2 Clark 393. 7 Ibid. 2 116. 78. & R. 349. S6W. 4&5. 513. 18 106 Penn. St. 643. CONSTABLES, 277 sue on the bond or proceed under the 19th section of the act of 18101 A judg- ment against the constable for official misconduct, is conclusive against the sureties - as to the misconduct and the extent of the damage -? but they may take advantage of any defence personal to themselves. III. APPOINTMENT OF DEPUTIES. No deputy shall be appointed by any constable, either by general or partial depu- tation, without the approbation of the court of quarter sessions of the proper county first had and obtained, except the same be made specially, in some civil suit or proceeding, at the request and risk of the plaintiff or his agent. In the event of the death, inability or refusal to act of his deputy, the constable of any township may, with the approbation of any one of the judges of the court of quarter sessions of the same county, appoint another deputy, with full authority to act as such, until the next regular sessions of such court, and, for the acts of such deputy, the constable and his sureties shall be liable as in other cases ; and in every such case, the constable shall file a written copy of such deputation in the office of the clerk of the court of quarter sessions of such county. A constable who has appointed a deputy, is still capable to act and execute pro- cess© The court will not appoint a deputy constable, when the constable elect is able to attend to the duties of his ward.’ A general deputy of a constable, when so appointed, can execute all process. A constable would be liable for the mis- feasance of a deputy who derived his authority from a special deputation made by his deputy ; but one who employs a special constable, deputed at his own instance, must bear the consequences of his misfeasance, as of any other servant employed by him. To justify the court in sustaining as regular the service of a summons directed generally by the deputy of one calling himself merely a constable, he must appear before the justice to make his return, and identify his official character by. the production of his deputation.’ 1V. REMOVAL FOR MISCONDUCT, ETC. j The courts of quarter sessions of each county shall have full power, on petition of any surety of any constable, setting forth the complaint, and verified by affidavit, to inquire into official conduct of such constable, and in all cases where said court shall be satisfied that, from habits of intemperance or neglect of duty, any con- stable is unfit and incompetent to discharge his official duties, it shall be lawful for said courts, respectively, to decree the removal of such constable from office, unless such constable gives such additional surety as the court may direct, and to appoint a suitable person to fill the vacancy who shall have a freehold estate worth at least one thousand dollars beyond incumbrance, or give security, as in other cases of constables, to continue in office until the next succeeding election for constable, and until a successor be duly qualified ; and in all cases where any constable, elected or appointed, shall not have given sccurity, and has so neglected his business, or the situation of his estate is such as to render it unsafe to intrust him with the execution of official duties, the said.courts shall also have power to require such constable to give security in the same sum and in the same manner required by law from other constables who have not such estate as exempts them from giving security, and such security thus given shall be for the same uses and as valid in law as the security given by said other constables, and in default of giving such security within such time as the said court shall adjudge reasonable, said court shall decree the removal of such constable from office, and fill the vacancy in the same manner as is provided herein for cases of constables incompetent to act from habits of intemperance. 168. & R.245, 8 Ibid. 414. 3 W.208. 4 63 P. & W. 236 Ibid. 217. 7 11 Phila. 391 2178. & R. 354. 8 W. 398. 5 Whart. 144. 83D. & W. 236 7 Penn. St. 240. 9 9 W. 430. 8 17S. & RB. 354, 10 3 Luz. L. Reg. 111. 4 Act 15 April 1834 2 113. Purd. 374, 11 Act 27 May 1841 3 14, Purd. 375. 5 Ibid. 2 114. 278 CONSTABLES. V. THEIR DUTIES AND LIABILITIES IN CIVIL CASES. Every justice of the peace rendering judgment as aforesaid, shall receive the amount of the judgment, if offered by the defendant or his agent, before execution, and pay the same over to the plaintiff or his agent when required ; for which service he shall, if exceeding five dollars and thirty-three cents, he allowed [twenty-five cents] by the defendant, in addition to his usual fees:' and if the said justice shall neglect or refuse to pay over on demand the money so received, to the plaintiff or his agent, such neglect or refusal shall be a misdemeanor in office; and if the amount of the judgment is not paid to the justice as aforesaid, he shall grant execu- tion, if required by the plaintiff or his agent, thereupon, if for a sum not exceeding five dollars and thirty-three cents, forthwith, and for any further sum, after the time limited for the stay of the same ; which execution shall be directed to the con- stable of the ward, district or township where the defendant resides, or the next constable most convenient to the defendant, commanding him to levy the debt or demand, and costs, on the defendant’s goods and chattels; and by virtue thereof shall within the space of twenty days next following, expose the same to sale, by public vendue, having given due notice of the same by at least three advertisements, put up at the most public places in his township, ward or district, returning the overplus, if any, to the defendant ; [and for want of sufficient distress, to take the body of such defendant into custody, and him or her convey to the common jail of the county ; and the sheriff or keeper of such jail is hereby directed to receive the person or persons so taken in execution, and him, her or them safely keep, until the sum recovered and interest thereon accrued from the date of the judgment, together with costs, be fully paid, and in default of such keeping to be liable to answer the damage to the party injured, as is by law provided in cases of escapes ;?] or in case no goods and chattels can be found, and the defendant be possessed of lands or tenements, the plaintiff may waive imprisoning the defendant, and proceed by a transcript to the prothonotary aforesaid: Provided, That executions against executors or administrators shall only be for the assets of the deceased. In all cases where a constable levies an execution issued from a justice of the peace, he shall indorse the goods or chattels so levied on the execution or schedule thereto annexed, which levy shall be a lien on such chattels for twenty days after levying the same, and no longer; and the constable making such levy is hereby authorized and empowered to take a bail-bond in the following or like words, viz.: “« We, A. B. and C. D., or either of us, are held and firmly bound unto E. F., con- stable, in the sum of , upon condition that the said A. B. shall deliver unto E. F. aforesaid the following goods and chattels , on the day of , at the house of , which is taken in execution at the suit of G. H. against A. B., or pay the amount of the said execution with costs. Witness our hands and seals this day of -’ But if the said defendant shall not deliver the chattels so specified in such bond, or pay the amount of such execution, the constable may then pro- ceed to the sale of such goods or chattels so levied, provided, the lien created by such levy be not expired; but should the lien be expired, the justice may issue an alias execution, which may be proceeded on as aforesaid ; or the constable taking such bond may assign it to the plaintiff, who may recover the same before any justice of the peace, without stay of execution: Provided always, That any con- stable taking such bail shall be accountable to the plaintiff for the sufficiency thereof, notwithstanding such assignment.* Whenever a constable shall levy on the goods and chattels of a defendant as is directed by the 11th section of the act to which this is a supplement, he shall indorse the time of such levy on the execution; and no execution issued by a justice of the peace shall be a lien on the proverty of the defendant, before levy made thereon.® In all cases where any constable shall collect or receive the debt, interest and costs, or any part thereof of any execution, it shall be his duty to make out and deliver to the defendant or defendants in such execution a bill of particulars of 1 For the fees allowed for this service, by the of contract. present fee bills, see ante p. 127, note 8. 3 Act 20 March 1810 211. Purd. 375. 2 Since the act to abolish imprisonment for debt, * Ibid. 2 18. no execution can issue against the body, in cases 5 Act 28 March 1820 24. Purd. 376. CONSTABLES. © j 279 his fees and charges, together with a recoipt, signed by him for the same, if paid; and if any constable shall neglect or refuse, upon application to him made by the party interested, to give such bill or receipt, he shall, for such neglect or refusal, forfeit and pay the sum of ten dollars, to be recovered in the manner and for the use prescribed in the act to which this is a supplement, On the delivery of an execution to any constable, an account shall be stated in the docket of the justice, and also on the back of the execution, of the debt, interest and costs; from which the said constable shall not be discharged, but hy producing to the justice, on or before the return-day of the execution, the receipt of the plaintiff, or such other return as may be sufficient in law; and in case of a false return, or in case he does not produce the plaintiffs receipt, on the return-day, or make such other return as may be deemed sufficient by the justice, he shall issue a summons directed for service to a constable, or to some other fit person who shall consent to serve the same, and having so consented, by accepting of such process, shall be bound to execute the same, under a penalty of twenty dollars, to be recovered as other fines are recoverable by this act; but should not a constable, or other fit perso’ conveniently be found to serve the process as aforesaid, the justice shall dire . it to a supervisor of the highways of the township, ward or district where sur . constable resides, whose duty it shall be to serve the same, under the penalty a’ ,resaid—commanding the constable to appear before him on such day as shall . 2 mentioned in the said summons, not exceeding eight days from the date thereof, and then and there show cause why an execution should not issue against him for the amount of the first above-mentioned execution ; and if the said constable either neglects to appear, on the day mentioned in such summons, or does not show sufficient cause why the execution should not issue against him, then the justice shall enter judgment against such constable, for the amount of the first above-men- tioned execution, together with costs, on which judgment there shall be no stay of execution; and upon application of the plaintiff or his agent, the said justice shall issue an execution against the constable for the amount of such judgment, which execution may be directed to any constable of the county, or other fit person accept- ing thereof, or to a supervisor, as aforesaid, whose duty it shall be to execute the same: Provded always, That nothing in this act contained shall in any manner impair or alter the proceeding as heretofore established with regard to insolvent debtors, and their discharge on a full surrender of their property.’ So much of the act entitled “an act to amend and consolidate with its supple- ments, the act entitled ‘an act for the recovery of debts and demands not exceeding one hundred dollars before a justice of the peace, and for the election of constables, and for other purposes,’” passed the 20th of March 1810, as provides that the jus- tice shall enter judgment against a constable for the amount of an execution, together with costs, on which judgment there shall be no stay of execution, shall not be construed to deprive the constable of the right of appeal* to the court of common pleas of the proper county, upon such conditions and under like limitations, as in the case of other defendants.‘ In all cases where judgment shall be rendered by an alderman or justice of the peace, against any constable in this commonwealth, under the 12th section of the act to which this is a further supplement, in addition to the remedies provided by the existing laws, it shall be lawful for the plaintiff or plaintiffs, his, her or their legal representatives, to take out a transcript of such judgment, and file the same in the office of the prothonotary of the court of common pleas of the proper county ; and it shall be the duty of the prothonotary,® at the request of such plaintiff or plaintiffs, to issue a fieri facias or capias ad satisfaciendum, against such constable, to be proceeded in as in other cases; or the said plaintiffs may apply to the court of com- mon pleas, who shall have power to issue an attachment against such constable : Provided, That such proceedings shall in no case be decmed or construed to exon- erate the surety or sureties of such constable.® Where any constable shall refuse or neglect to pay over to the defendant ot 1 Act 28 March 1820 3 3. Purd. 376. 4 Act 13 October 1840 3 12. Purd. 377. 2 Act 20 March 1810 3 12. Purd. 376. 5 A previous execution by the justice is not 3 The plaintiff as well as the constable is enti- necessary. 3 W. 278. tled to an appeal. 4 W. & S. 278. , 6 Act 29 March 1824 2 2. Purd. 377. 280 CONSTABLES. defendants, his or their agent or legal representatives, the overplus money which he or his deputy may have made or received upon any execution or executions, then and in such case the party or parties aggrieved, may apply to the alderman or justice of the peace who issued the process, who shall thereupon proceed against such con- stable in the manner prescribed by the 12th section of the act to which this isa supplement, in cases where the constable makes a false return, or neglects to return the execution; and if upon such proceedings, the justice shall receive the overplus money, or if it shall be voluntarily paid to him at any time by the constable, he shall, in either case, pay over the same to the defendant or defendants, or his or their agent or legal representatives, without any fee for making such payment.’ If any constable shall receive money by virtue of an execution or other process, and shall neglect or refuse, upon application to him made by the party interested, to pay the amount thereof to the party entitled to receive the same, or to his, her or their agent or legal representatives, he shall be deemed guilty of a misde- meanor in office, and upon conviction thereof in the court of general quarter sessions of the peace of the proper county, he shall be sentenced to pay, at the dis- cretion of the court, a fine of not less than twenty dollars, nor exceeding one hundred dollars, and shall stand committed until the money so withheld shall be paid, together with the interest, fine and costs; and moreover, shall, for seven years thereafter, be incapable of holding the office of constable, or the appointment of deputy-constable.’ Any constable who has or may hereafter give security agreeable to law for the faithful performance of the duties of his office, and afterwards, on neglecting or refusing to perform such duties, shall have judgment rendered against him for such neglect or refusal, and on being prosecuted for the recovery of such judgment, becomes insolvent,’ abandons his country, or from any other reason it becomes impracticable for such judgment or judgments to be recovered from such constable as aforesaid, or where a constable makes such default, and abandons his country before judgments are had against him, then, and in such cases only, the justice* before whom the judgment or judgments stand unpaid, shall be, and is hereby authorized and empowered to issue a scire facias, and proceed against such bail,® for the recovery of judgments had as aforesaid, in the manner that constables are now suable, saving only the right of appeal to such sureties.® Tn all cases where any constable has been or shall be intrusted with the execution of any process, for the collection of money, and by neglect of duty has failed or shall fail to collect the same, by means whereof the bail or security for such constable shall be compelled to pay the amount of any judgment or judgments; such pay- ment shall vest in the person or persons paying as aforesaid, the equitable interest in such judgment or judgments, and the amount due upon any such judgment or judgments may be collected, in the name of the plaintiff or plaintiffs, for the use of such person or persons." Tt shall not be lawful for any deputy-constable, or any person or persons at his direction or request, and for his use, either directly or indirectly, to purchase any goods, wares or merchandise taken in execution and sold by the principal of such deputy-constable ; nor shall it be lawful for any constable, or for any person, at his request and for his use, in any township, city or district in which there are more constables than one, to purchase any goods, wares or merchandise taken in execution and sold by any other constable within such township, city or district; and if any constable, deputy-constable or other person shall be convicted before the justices of the court of general quarter sessions of the peace of offending against or violating any of the provisions of this section, he, she or they so offending, upon conviction 1 Act 28 March 1820 2 2. Purd. 377. 2 Ibid. 3 7. 8 His insolvency may bo established by parol evidence. 7 W. 292. 8 Ibid. 398, Tho law, in such case, requires no higher standard of diligence than the ordinary application of its own process. 29 Penn. St.176. Buta return of nulla bona, to an execution issued by the justice, is not, in itself, sufficient evidence of insolvency, as he may havo real estate. 7 W. 293. 30 Penn. St. 210. 4 The jurisdiction of justices, under this sec- tion, is not taken away by the acts giving juris- diction to the common pleas in suits on constables’ bonds. 6S. & R. 245. 8 Ibid, 414. 3 W. 208. 4 [bid. 217. 5 Tho constable need not be joined. 3 W. 208. 6 Aot 20 March 1810 3 19. Purd. 377. T Act 23 April 1829 3 3. Purd. 378. The con- stable who, through neglect of duty, becomes liable for, and is compelled to pay the amount of an execution, has no such right. 6 W. 228 7 Ibid. 353. CONSTABLES. 281 thereof, shall forfeit and pay, at the discretion of the court, any sum not less than twenty dollars nor exceeding one hundred dollars, the one-half whereof shall be paid to the person informing, and the other half to the use of this commonwealth, and moreover, shall for seven years thereafter be incapable of holding the office of constable or the appointment of deputy-constable.’ No sheriff, constable or other officer shall sell or dispose of, by way of vendue, at any place or places, within two miles of the state-house, in the city of Philadel- phia, or within the chartered limits of the city of Pittsburgh, any lands, tenements, goods or chattels, other than such as are taken in execution and liable to be sold by order of law, or distrained for rent in arrears ; and if any sheriff or constable or other officer fraudulently or wilfully violate or evade this provision of this act, it shall be deemed to be a misdemeanor in office, for which the offender may be prose- cuted by indictment, in any court of competent jurisdiction.’ Tn all suits which may hereafter be instituted in any court of this commonwealth, in which the sheriff of any county may be a party, when there is no coroner in commission to serve process, it shall be lawful for any constable in the county where the process has been issued to serve the same, and to perform the duties in relation ae which coroners are authorized to do under the laws of this common- wealth. The same rules of law which govern sheriffs in the execution of process from the higher courts govern constables in the execution of a justice’s process, except where some statute intervenes.* It is the universal practice for justices to issue their warrants and executions to any constable within the county. And the sureties of such constable are respon- sible for their due execution.®> A warrant issued to — , constable, if executed by the proper constable, is good ;® the justice is to judge who is the constable most convenient to the defendant.’ Buta sale by a constable of one township, under an execution directed to the constable of another township, passes no title to the pro- perty; he is a mere trespasser.® And the sureties are only responsible, where the execution is delivered to him in his official capacity by the justice.® A justice can- not compel the constable of another ward or township, who is clearly not the constable most convenient to the defendant, to execute his process; he may decline to accept it. A constable’s sale to the plaintiff in the execution, no other person being present, is illegal and void ;" if he sell any portion of the goods without levy or advertise- ment, he is liable.” A constable has no right to conduct a sale under an execution in a public street, to the obstruction of the people; such act is indictable as a public nuisance® It is his duty to deliver possession to the purchaser, but having done so, his duty in reference to the goods is at an end. ‘A constable who sells under an execution, after the entry of an appeal, is not a trespasser; he-is protected by his process, though he had notice of the appeal.’ But if he proceed to sell, after his execution has been revoked by the justice, on the entry of an appeal, he is a mere trespasser ; and the purchaser takes no title.’ ‘A constable’s return to an execution must be in writing.” Of the sufficiency of the return, the justice must judge in the first instance, but his decision is subject to review ; and the return must be in writing.” The constable cannot discharge the defendant from liability, by the settlement of an account of previous money trans- actions with himself, and passing receipts, no money being actually paid.® The mere omission to return the execution within twenty days, will not render the con- stable liable, if he have sufficient cause for the delay.” 1 Act 28 March 1820 2 6. Purd. 378, 10 106 Penn. St. 643. ; 2 Act 1 April 1826 3 7. Ibid. 11 15 Ibid. 50. See 41 Ibid. 185, 3 Act 22 April 1850319. Ibid. The act 12 J Ibid. 238. 19 April 1848 2 2, confers the same powers in all 18138. & R. 403. cases against the sheriff or his sureties, when there 14 2 Phila. 89. is no coroner in commission. Purd. 378, note y. 15 76 Penn. St. 44. 4 2 Cow. 421. 16 27 Ibid. 199. 5758. & R. 353-4, 175 W. & 8. 457. ® 6 Binn. 123. 18 Tbid. 8 W. 220. 4 Whart. 56. And seo 1 Ash, 7138. & R. 336. 26,160. 1M. 210. 8 3 Penn. St. 249. 19 2 BR. 199. 8 2 Ibid. 49. 26 W.& S. 534. 282 CONSTABLES. It is a good defence to a proceeding against the constable, that the judgment was paid before the execution was issued; but the issuing of a subsequent execution does not discharge the constable from the liability incurred.’ In an action against a constable for an insufficient return, it is not competent for him to. prove that the property levied on did not belong to the defendant in the execution. If he have reason to doubt about the ownership of it, he may require the plaintiff to indemnify him ; and if he refuse to sell, not having done so, he becomes liable. The plain- tiff is not bound to offer an indemnity, before it is required by the officer; nor will every frivolous objection protect him, as he will be liable for a false return, unless there was reasonable ground for apprehension that he would be endangered by the levy and sale If he refuse to receive a bond of indemnity, on the ground that the security is insufficient, and declare that he will not proceed unless certain per- sons named by him are given as sureties, this is equivalent to a refusal to execute the writ, and dispenses with the tender of further security.’ If he have accepted indemnity from the plaintiff under a claim to the property levied on made by a third party, he is bound to proceed, and is estopped from showing that the goods did not belong to the defendant. And where the execution has not been returned within the time limited, it is incompetent for the constable to prove that the defendant had no property, or that the defendant’s wife had died the night before he proceeded to execute the writ, in consequence of which, through feelings of humanity, he failed to execute it.5 Nor can the constable disobey the execution, where the justice’s proceedings are irregular : as, where the justice had proceeded by attachment, without taking a legal bond.® VI. THEIR DUTIES IN REGARD TO ELECTIONS. Tt shall be the duty of the constable or constables of each township, ward and district, at least ten days before the day hereinafter appointed for the election of inspectors, to give public notice, by six or more printed or written advertisements affixed at as many of the most public places therein, of the time and place of hold- ing such election." The constable or constables of every township within this commonwealth shall give public notice of the township elections, by ten or more printed or written advertisements, affixed at as many of the most public places therein, at least ten days before the election, and in every such advertisement they shall enumerate, designate and give notice as sheriffs of counties in cases of general elections are directed by the 1st and 2d divisions of the 13th section of the act to which this is a supplement :® and in case of the neglect, refusal, death or absence of the afore- said constable or constables, the duties herein enjoined on them shall be performed by the supervisors or assessor of the proper township; but said supervisors or assessor of the proper township shall not be required to give more than five days’ notice; and said elections shall be held and conducted under the regulations not inconsistent herewith, prescribed in the aforesaid act ; but nothing in this act, or in the act to which this is a supplement, contained, shall be construed to prohibit a judge, inspector or clerk of election from being voted for tu fill any township office, or render either or any of them ineligible to hold the same.® Constables, supervisors or assessors, as the case may be, of any ward, township, incorporated district or borough, shall be allowed and paid, out of the county trea- sury, two dollars for advertising ward, township, district and borough elections ; said constables shall also be allowed and paid, as aforesaid, twenty cents for delivering to each township officer, a certificate of his election, as directed by this act, and the act to which this is a supplement.” It shall be the duty of every mayor, sheriff, deputy-sheriff, alderman, justice of the peace, and constable or deputy-constable of every city, county and township or district within this commonwealth, whenever called upon by any officer of an elec- 12 W. & 8. 229. T Act 2 July 1839 3 1. Purd. 378. 28 W. 220. 8 That is, he shall—1. Enumerate the officers 5 2 Phila. 288. to be elected, 2. Designate the place at which the 414 Penn. St. 510. election is to be held. 5 7 Leg, Int. 183. 3 Am. L. J. 129. ® Act 13 June 1840 2 2. Purd. 378, 6 11 Leg. Int. 126-7. 10 Tbid. 211. Purd. 379. CONSTABLES. 283 tion, or by any three qualified electors thereof, to clear any window or avenue to any window, at the place of the general election, which shall be obstructed in such a way as to prevent voters from approaching the same, and on neglect or refusal to do, on such requisition, said officer shall be deemed guilty of a mis- demeanor in office, and, on conviction, shall be fined in any sum not less than one hundred and not more than one thousand dollars; and it shall be the duty of the respective constables of each ward, district or township within this commonwealth, to be present, in person or by deputy, at the place of holding such elections in said ward, district or township, for the purpose of preserving the peace as aforesaid.’ It shall be the duty of every peace officer, as aforesaid, who shall be present at any such disturbance at an election as is described in this act, to report the same to the next court of quarter sessions, and also the names of the witnesses who. can prove the same; and it shall be the duty of the said court to cause indictments to be preferred before the grand jury against the persons so offending.? If it shall be made to appear to any court of quarter sessions of this commonwealth that any riot or disturbance occurred at the time and place of holding any election under this act, and the constables who are enjoined by law to attend at such elec- tions have not given information thereof, according to the provisions of this act, it shall be the duty of said court to cause the officer or officers, so neglecting the duty aforesaid, to be proceeded against by indictment for a misdemeanor in office, and on conviction thereof, the said officer shall be fined in any sum not exceeding one hundred dollars.’ It shall be the duty of the several courts of quarter sessions of this common- wealth, at the next term of said court after any election shall have been held under, this act, to cause the respective constables in said county to be examined on oath as to whether any breaches of the peace took place at the election within their respective townships, wards or districts ; and it shall be the duty of said constables respectively to make return thereof as part of their official return at said court.‘ If the constables or supervisors of any-township, ward or district shall neglect or refuse to perform the duties herein required of him or them, they shall, respectively, on conviction, be fined in any sum not less than fifty nor more than one hundred dollars.5 It shall be the duty of the said inspectors and judge to make out a certificate of the election of each township officer aforesaid, which shall be signed by them and delivered to the constable of the proper ward, district or township, and by him delivered to the said officer, or left at his usual place of abode, within six days there- after. By the fee-bill of 1868, constables are entitled to the sum of two dollars, for attending general elections ; and to the sum of three dollars, for attending special, township, ward or borough elections.’ But this act does not apply to the counties of Alleghény, Berks, Montgomery, Philadelphia or Washington.’ No portion of the people possess the right to gather round the polls and remain there in such numbers as to obstruct the approach of the electors; it is the duty of the constable, either at the request of the citizens, or under the direction of the officers of the election, to remove such obstruction, and open an avenue to the polls; in discharging his duty, he ought to give notice to the people to remove themselves, before proceeding to violent measures; but, having given such notice, he has the right to use as much force as may be necessary to accomplish the object, and every citizen who is called on to assist him is bound to do so.? VII. AcTIONS AGAINST CONSTABLES. No action shall be brought against any constable or officer, or any person or persons acting by his or their order, and in his aid, for anything done in obedience to any warrant under the hand and seal of any justice of the peace, until demand 1 Act 2 July 1839 3111. Purd. 379. all prosecutions to be commenced within one year. 2 Thid. 3 112. 6 Act 2 July 1839 3 54. Purd. 379. 3 Thid. ¢ 113. 7 Purd. 794. ¢ Ibid. 3 114. 8 Ibid. n. 5 Thid. g 97. By 3 128, the penalty is to be re- 9 Com. v: Hamilton, Q. S. Lancaster, 22 Jan- covered by indictment‘in the quarter sessions;and uary 1849. Lewis, P. J., MS. 284 CONSTABLES. hath been made, or left at the usual place of his abode, by the party or parties intending to bring such action, or by his, her or their attorney or agent, In writing, signed by the party demanding the same, of the perusal and copy of such warrant, duly certified under his hand, and the same hath been neglected or refused for the space of six days after such demand; and in case, after such demand and compli- ance therewith, by showing the said warrant and giving a copy thereof, certified as aforesaid to the party demanding the same, any action shall be brought against such constable, or other person or persons acting in his aid, for any such cause as aforesaid, without making such justice or justices, who signed or sealed the said warrant, defendant or defendants, on producing and proving such warrant, at the trial of such action, the jury shall give their verdict for the defendant or defend- ants, notwithstanding any defect or defects of jurisdiction in such justice or justices; and if such action be brought jointly against such justice or justices, and also against such constable or other officer, or person or persons acting in his or their aid as aforesaid, then on proof of such warrant, the jury shall find for such constable or other officer, and person or persons so acting as aforesaid, notwith- standing such defect of jurisdiction as aforesaid ; and if the verdict shall be given against the justice or justices, in such case the plaintiff or plaintiffs shall recover his, her or their costs against him or them, to be taxed in such manner, by the proper officer, as to include such costs as such plaintiff or plaintiffs are liable to pay to such defendant or defendants, for whom such verdict shall be found as aforesaid : Provided always, That where the plaintiff in any such action against any such jus- ' tice of the peace shall obtain a verdict, in case the justices before whom the cause shall be tried, shall, in open court, certify on the back of the record that the injury for which such action was brought, was wilfully and maliciously committed, the plaintiff shall be entitled to have and receive double costs of suit.1_ Provided always, That no action shall be brought against any justice of the peace for anything done in the execution of his office, or against any constable or other officer, or per- son or persons acting as aforesaid, unless commenced within six months after the act committed.? In all cases where any alderman or justice of the peace of this commonwealth shall issue a summons, warrant of arrest or execution, in any civil suit against any constable or constables, for any debt or demand alleged to be due by him or them, in his or their individual or private capacity, he shall direct such summons, warrant of arrest or execution to any other constable in the city or county in which the said justice may reside, who shall be authorized and bound to serve or execute the same in the manner prescribed by the act to which this is a supplement, under a penalty of twenty dollars, to be recovered as other fines are recoverable by the same act; and if the constable to whom such process shall be directed shall neglect or refuse to make return of the same, or having made the money or any part of it, upon the execution, refuses or neglects to pay over or account for the same, he shall be proceeded against in like manner, and be subject to like proceedings as constables in other cases are liable to, agreeable to the provisions contained in the 12th section of the act to which this is a supplement. Where a constable has pursued his warrant, he can be affected with want of jurisdiction in the magistrate, only where he is sued alone, having, after a proper demand, refused to furnish a copy of the warrant for the space of six days.4 A misrecital in the body of an execution does not render it void, nor is the constable a trespasser in executing it; he is justified under the provisions of this act. A constable is protected by his writ, if regular in form, and containing nothing on its face, to indicate a want of jurisdiction on the part of the justice who issued it. It seems, the warrant may be given in evidence under the general issue." Trespass against a constable for seizing and selling plaintiff’s goods, under an execution out of his district, is within the act.® But not an action for an escape or for taking the goods of A. under a warrant to levy on the goods of B. 3° or for i 1 Act 21 March 1772 2 6. Purd. 379. 6 96 Penn. St. 31. 2 feet 7. T 3 Binn. 218. 8 Act 28 March 1820 2 1. Purd. 380, § 118. &R. 185, £58. & BR. 302. 1 Binn. 124. 3 Ibid. 219. 9 8 Penn. St. 405. 5 2 W. 424, 10 3 Clark 281. See 1 Bro. 343. CONSTABLES. 285 taking illegal fees under color of an execution.! The limitation may be taken advan- tage of, under the general issue.? VIII. MiscELLANEOUS PROVISIONS. Every constable is required, in the first week in each term, to make returns under oath of all places where liquors are kept for sale or sold, except stores kept by drug- gists and apothecaries, stating which of said places are licensed and which are unli- censed, and it is made the duty of the judge to see that this return is faithfully made, and on failure of any constable to comply with this provision, or, if it be found upon examination or inquiry by said court that any constable has either wilfully or negli- gently omitted to return all such houses and the names of the proprietors thereof in his bailiwick, he shall be guilty of wilfully or negligently making a false return, and the court shall suspend him from office and direct the district-attorney to indict and try said officer, and, if found guilty, he shall be fined ina sum not exceeding five hundred dollars and undergo an imprisonment, either simple or solitary, not exceed- ing two years, both or either, in the discretion of the court.? The second section of this act provides for monthly visits, and for forthwith returns of violations of the act. Any constable who shall take up and convey to jail any convict who shall escape from his confinement, shall be allowed mileage, at the same rate as con- stables are commonly allowed ; to be paid by the treasurer of the proper county.* It shall be the duty of the judges of the several courts of quarter sessions, oyer and terminer, and common pleas within this commonwealth, after the con- stables shall have made their returns on the first day of the sessions, to ascertain the number of constables attending, and to select a sufficient number’ to attend during the term of the said court, and to discharge the other constables, and to select for every court thereafter, until a new election of constables shall be held: Provided, That no constable shall be obliged to serve more than one week at any one time, until the whole list shall have been gone through; and when an adjourned court shall be held, it shall be the duty of the sheriff to give notice to the constable or constables selected by the judges, to attend at the said adjourned court? It shall be the duty of the clerk or prothonotary of any of the said courts, as the case may be, to certify the name or names of the constable or constables, and the number of days each constable shall have attended, to the commissioners of the proper county, who shall thereupon draw their warrant on the county treasurer in behalf of the said constable or constables for one dollar for each and every day he or they shall have respectively attended. The judges of the several courts of this commonwealth shall have power to appoint a crier for the respective court, and so many tipstaves or constables as may be necessary to attend upon the court; and the said officers shall be paid by the respective county, such sums for each day’s attendance as the said judges shall allow.’ ‘ By act of 8th May 1854, § 31, the board of directors or controllers of any school district, in the event of their failure, from any reason, to procure a collector of school taxes, may appoint to that office the constable of the school district, who shall forfeit, for every refusal to execute the same, by proof thereof being made before any alderman or justice of the peace, the sum of fifty dollars, which shall be added to the school fund of the proper district.’ A constable is not bound to execute a criminal warrant, which appears to be illegal on its face ; as, if issued without oath, but merely on common rumor of the party’s guilt.® If a constable be resisted in the execution of his process, he may raise the power of the county for his assistance, in the same manner as the sheriff 1 Keller v. Hammer, Bright. on Costs, 159. 5 Act 21 January 1814 2 1. Ibid. 29S. &R. 14. , 6 Act 14 April 1834 3 78. Purd. 381, 3 Act 13 May 1887. Purd. 1228. 7 Purd. 337. ¢ Act 5 April 1790 2 33. Purd. 381. 8 3 Binn. 38. 2 Am. L. J. 484, 286 CONSTABLES, may; and a person refusing to assist him, is indictable for such refusal. So, the refusal, without sufficient cause, to assist a constable in preventing the escape of a person in his custody, is an indictable offence? And the keeper of the prison is bound to receive a person arrested and brought to him by a constable, and charged with a breach of the peace in his presence.’ A constable is bound to pursue, search for, and arrest offenders, without other compensation than his legal fees, and cannot recover a reward for arresting a person against whom a warrant has been placed in his hands.‘ : A constable who serves subpoenas for the court, is entitled to charge according to the sheriff’s fee-bill; but for serving those issued by a justice, only according to the constable’s fee-bill.5 He is entitled to mileage on each of several suits, by the same plaintiff against different defendants, though service was effected on all the parties on one journey.® IX. ForMs oF PROCESS TO ENFORCE A FAITHFUL DISCHARGE OF THE DUTIES OF THE OFFICE OF CONSTABLE. FORM OF WARRANT AGAINST A PERSON ELECTED, OR APPOINTED, A CONSTABLE, WHO NEGLECTS, OR REFUSES, TO DISCHARGE THE DUTIES OF THE OFFICE. YORK COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of York, in the said county, greeting: Waersas, A. B., of the township of N , in the said county, hath been duly elected and appointed (or ‘‘ hath been duly appointed’’) constable of the said township, but refusey or neglects to take upon himself the said office, or to undertake the duties of the same. These are, therefore, to command you to take the said A. B., and bring him before J. \t., one of our justices of the peace in and for the said county, to answer the premises, aid further to be dealt with according to law. Witness the said J. R., at York aforesaid, tha fifth day of May, a. p. 1880. J. R., Justice of the Peace. [sEAL.] FORM OF A SUMMONS AGAINST A CONSTABLE, WHO HAS NEGLECTED, OR REFUSED, TO MAKE : RETURN TO AN EXECUTION. MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of P—— Township, in the County of Monroe, greeting: Wuereas, J. R., one of the justices of the peace in and for the county of Monroe, lately, that is to say, on the first day of April, a. p. 1880, issued an execution directed to W. X., constable of N—— township, in the said county, for a debt of ten dollars and fifty cents, together with fifteen cents interest, and one dollar twenty-five cents costs of suit, wherein O. P. is plaintiff, and Q. R. is defendant, which execution was made returnable on or before the 20th of April, a. p. 1880. And, although the said execution came to the hands of the said W. X., constable, yet he hath not made return thereof, according to law Therefore, we command you, that you summon the said W. X. to appear before our said justice, on the tenth day of May instant, at nine o’clock in the forenoon, at his office in P. township, then and there to show cause why judgment shall not be rendered, and an execution issue against him, for the amount of the above-mentioned execution. Wit- ness the said J. R., at P. township aforesaid, the fourth day of May, a. p. 1880. . B., Justice of the Peace. [szat.] EXECUTION AGAINST A CONSTABLE ON A JUDGMENT, FOR NOT HAVING MADE RETURN TO AN EXECUTION. MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of P. Township, in the county of Monroe, greeting : Wuerzas, O. P. hath obtained judgment, before J. R., one of our justices of the peace in and for the said county, against W. X., constable of N—— township in the county of Monroe, for a debt of eleven dollars and thirty-five cents eae the amount of an execu- tion in the hands of the said constable, against a certain Q. R., wherein the said O. P. is the plaintiff), together with one dollar and twenty cents costs of suit; and the said W. X. havirig hitherto neglected to comply with the said judgment, we command you, that of the goods and chattels of the said W. X., you levy the debt and costs aforesaid, and 15 Whart. 437, 4 10 Penn. St. 39. 5 Am. L. Reg. 98, 2 6 Blackf, 277. 5 1 Bro. 274. 2 Chest. Co. R. 105, '88. & BR. 47. 6 103 Penn. St. 433. . CONSTABLES, 287 for want of sufficient distress, that you take the body of the said W. X., and convey him to the common jail of the said county, there to be kept until the debt and costs aforesaid be fully paid, or he be otherwise discharged by due course of law. Make return hereof to our said justice, on or before the 30th day of May, a. pv. 1880, Witness the said J. R. at P—— aforesaid, the tenth day of May, a. p. 1880. J.R., Justice of the Peace. [szaz.] WARRANT AGAINST A CONSTABLE FOR NEGLECT OF DUTY. BEAVER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of L—— Township, in the county of Beaver, greeting: Wuerkas, on the tenth day of May last, a warrant, issued by J. R., one of our justices of the peace in and for the county of Beaver, was directed and delivered to C. D., con- stable of H——, in the said county, wherein the said constable was commanded to take a certain H. S., and carry him before the said J. R. forthwith, to answer for a certain larceny in stealing and carrying away the goods and chattels of S. B.; and, whereas, the said C. D. hath neglected, or refused, to execute the said warrant, and the said H. S. hath absconded, as it is said. These are, therefore, to command you to take the said C. D., and bring him before the said J. R. forthwith, to answer for the said neglect of duty, and further to be dealt with according to law. Witness the said J. R., at D—~ aforesaid, the first day of June, a. p. 1880. J. R., Justice of the Peace. [szat.] FORM OF SUPERSEDEAS TO A CONSTABLE. BUCKS COUNTY, ss. The Commonwealth of Pennsylvania. To the Constable of D—— Township, in the County of Bucks, and to each and every Constable in the said county, greeting : Forasuucu as T. D., of J—— township, in the said county, yeoman, hath this day entered into a recognisance, with sufficient sureties, before J. R., one of our justices of the peace in and for the said county, for the appearance of the said T. D., at the next court of quarter sessions of the peace, to be held for the county aforesaid, to answer the complaint of L. S., made before A. B., one of the justices of the peace of the said county, for an assault and battery, committed on him by the said T. D. (or as the case maybe). These are, therefore, to command you, that you forbear to take, arrest, imprison or otherwise molest the said T. D. for the cause aforesaid ; and if you have for that cause, and none other, taken and imprisoned the said T. D., that then you discharge and set at liberty the said T. D., without further delay, as you will answer the same at your peril. Given under the hand and seal of the said J. R., at D——, in the said county, the second -day of May, a. p. 1880. J. R., Justice of the Peace. [smat.] DISCHARGE TO BE SENT TO THE KEEPER OF THE COUNTY PRISON, OR A CONSTABLE. COUNTY OF BUCKS, ss. The Commonwealth of Pennsylvania, To the Constable of A—— township, or to the Keeper of the Prison of the County of Bucks: The Commonwealth ) Charged before J. R., one of our justices of the peace in and for the vs. said county, with having committed an assault and battery on C. D. A. B. Committed for a further hearing the tenth day of May 1880. Discharge out of your custody [or deliver to P. C., constable of F—— township] the body of the above-named defendant, if detained for no other cause than that above men- tioned, and for so doing this shall be your sufficient warrant. Given under my hand and seal, this [tenth] day of [May], a. p. 1880. J. R., Justice of the Peace. [szau.] For other forms relating to the office of constable, see Marsh’s Constable’s Guide, App’. [ 288 J Contract. I. Definition of a contract. II. Consideration of a contract. I. A contract is a covenant or agreement between two or more persons, with a lawful consideration or cause :—as, if a man sell his horse, or other things, to another, for a sum of money, or covenants, in consideration of £20, to make him the lease of a farm, &. These are good contracts, because there is a guid pro quo (or one thing for another); but if a person make a promise to me that I shall have 20s., and that he will be debtor to me therefor, and after I demand the 20s., and he will not give it me, yet I shall never have an action to recover this 20s., because this promise (being without consideration) was no contract. Express contracts are, where the terms of the agreement are openly uttered and avowed at the time the agreement is entered into. Implied contracts arise under circumstances which, according to the ordinary dealing and understanding of men, show a mutual intention to contract. Constructive contracts are fictions of law, adopted for the purpose of enforcing legal duties, by actions ex contractd, where no proper contract exists, express or implied. Though a contract be formal and com- plete, yet, if understood by the parties as a jest, it is not binding. All contracts to change the course of trials, or the effects of trials, whether to obtain a liberation of a prisoner by the payment of money to the jailer, or to obtain a pardon by the use of money, directly or indirectly, must be void. Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there be no prohibitory words in the statute.6 Where a contract is to restrain a party generally from carrying on trade throughout the state, it is unlawful and void; but if it be to restrain him only in a particular place, it is not so.6 A contract made on Sunday is void ;’ but the statute does not avoid an executed contract, because made on Sunday.® A contract based on a supposed state of things which had no existence in fact will be relieved against, on the ground of mistake. Whenever there is a gross misrepresentation of facts relating to the subject of a contract, the contract is fraudulent and void ; but ignorance of the law does not affect contracts, nor excuse a party from the legal consequences of particular acts. The time of a payment is part of a contract; and if no time be expressed in the agreement, the money is payable immediately* What is a reasonable time within which an act is to be performed, when a contract is silent on the subject, is a ques- sion of law.’ A contract to complete work dy a certain time, means that it shall be done before that time." The contract of a surety being without a beneficial consideration, is not to be extended beyond the strict technical import ;* but he is as much bound by the true meaning of the obligation as his principal."® His liability is commensurate of that of the principal.” When a contract is entire, for the delivery of a number of specific articles, at a certain time and place, the vendee is not bound to receive a part; and though a part be delivered, he is not liable to pay for the same, if willing to accept and pay for the whole; but, if the vendee accept a part, he thereby disaffirms the entirety of the contract, and will be obliged to accept and pay for so many articles as are 1 Toml. Law Dict. 7. 1 Bouy. Inst. 222. 98 W.492, 8 Penn. St. 21. 2 29 Penn. St. 465. 10 4 Dall. 250. 8 Add. 261. 7 W. 3872. 47 W.155, And see 100 Penn. St. 561. 12 8 Johns. 189. 89 Penn. St. 436. 5 1] Binn. 113, 6 W. 233. 1 Bouv. Inst. 296. 18 2 Greenl. 249. 6 7 Cow. 307. 1 Bouv. Inst. 236. 4 3P. & W. 48. 71 Bro. 171. 6 W. 231. 3 W.& 8.507. 4 16 Ibid. 27. 1 W.310. 2W.N.C. 541. W.N. CO. 462, 560 161558. & R. 100. 878 Penn. St. 473. See 98 Ibid. 389. 11 6 W.N. C. 208, CONTRACT. 289 individually furnished according to the contract.! But one action can be maintained on an entire contract.? When neither time nor place for delivery is stipulated, the rule is, that the articles are to be delivered at the place where they are at the time of sale; when the time of delivery is fixed by the contract, the vendor must seek the vendee at his residence, and there tender the articles. If the articles are cumbersome, the vendor must seek the vendee, when the delivery is to be to the vendee, a reasonable time before the day of delivery, and ask him to appoint a place of delivery. A contract to deliver specific articles of property to another, at a certain time and place, in discharge of a previous debt, is performed, and the debt satisfied by a tender and delivery of the property, at the time and place, although the payee did not attend to receive the property, and no action on the contract can afterwards be maintained against the debtor.* On a contract to deliver specific articles, prima facie, the debtor is to be the actor; and this is to be the presumption, until circumstances show the contrary ; but even in such case, he is not bound to carry the property about, seeking the creditor, in order to tender it to him; he must ask the creditor to appoint a reasonable place to receive it. Where one party intends to abandon or rescind a contract, on the ground of a violation of it by the other, he must do so promptly and decidedly, on the first information of such breach. If he negotiate with the party, after knowledge of the breach, and permit him to proceed in the work, it is a waiver of his right to rescind the contract.® Where a contract is made for any building, of whatever size or dimensions, it becomes a law to the parties, and they are both bound by it; and whatever addi- tions or alterations are made in such building, they form a new contract, either expressed or implied, without affecting the original contract, and must be paid for agreeable to such new contract.’ But a contractor for the erection of a building, according to specifications in writing, cannot recover extra compensation for altera- tions in the plan, without clear and satisfactory evidence of a new, distinct and independent contract between the parties, authorizing such alterations, and agreeing to pay for them at a fixed price, or what they may be reasonably worth.’ Where a person makes a contract with another, to perform certain services, for a definite period, at a stipulated salary, and continues in such service beyond the period agreed upon, in the absence of any new agreement, the presumption of law is, that the original rate of compensation was to be continued.® Contracts are governed by the lex loci, or the law of the place where they are made ; and if valid there, they are to be adjudged valid everywhere, by the law of nations; but the remedy is according to the laws of the country where sued. The law of any foreign state, if relied on, must be proved before the court which is called on to decide—otherwise it cannot take notice of it.° The presumption of the law is, that a contract is intended to be performed in the place or country in which it is made, if there be not an express agreement or necessary implication that it is to be performed elsewhere; and, whenever such understanding is uot. apparent, the law of the contract is the law of the place where it is made.” Asa general rule, where a contract is entire, it is incumbent on the plaintiff to show a performance of all that was stipulated on his part, to be performed, and on failure so to do, he is notentitled to recover anything. Where there has been a substantial and bond fide compliance, on the part of the plaintiff, with his contract, he shall not be precluded from a recovery of his compensation, on account of some slight imperfection, for which the defendant may be compensated in damages.” Where a contract is voidable on account of a fraud practised upon the party being merely against conscience, it may be ratified and confirmed without a new consideration."3 But where there has been actual and positive fraud, or the party 12P.&W. 63. 2W.&S8. 26. 7 2 Bay 401. 2105 Penn. St. 350. 89 Penn. Bt. 245. 33 W.&S. 295. 2 Greenl. Evid. 3610. See 9 29 Ibid. 184. 36 Ibid. 367. 41 Leg. Int. 253. 10 2 Penn. Bl. 210. 45 W. 262. 1 6 Whart. 117. 5 31 Penn. St. 265. 12 2 Gr. 278. ; $5 BR. 69. 18 44 Penn. St. 9. 67 Ibid. 217. 69 Ibid. 81. 19 990 CONTRACT. has acted mala fide, there can be no confirmation.’ So, a contract void on the ground of public policy, or as against a statute, as the usury law, is incapable of confirmation.? A forged instrument is incapable of ratification ;° so, of any fraud which involves a crime ; otherwise, where the transaction is contrary only to good faith and fair dealing, and merely affects the individual interest of the person defrauded .* II. ConsrpERarion or a conrract.—In order to give validity to a contract, it must be founded on a sufficient consideration. There must be something given in exchange—something that is mutual, or something which is the inducement to the contract, and it must be a thing which is lawful, and competent in value to sustain the assumption. A contract without a consideration is a nude pact, and not bind- ing; whether the agreement be verbal or in writing, it is still a nude pact, and will not support ap action, if a consideration be wanting.» When the interest of a man is promoted, though not at his request, and he afterwards deliberately engages to pay for it, the law very properly says he shall fulfil his promise.® A consideration is sufficient, if it arise from any act of the plaintiff, from which the defendant or a stranger derives any benefit, however small, if such act is per- formed by the plaintiff, with the assent, express or implied, of the defendant, or by reason of any damage, or any suspension or forbearance of the plaintiff’s right at law or in equity, or any possibility of loss, occasioned to the plaintiff by the promise of another, although no actual benefit accrues to the party undertaking.” A moral or equitable obligation is sufficient consideration for an assumption? The compro- mise of a doubtful right is a sufficient consideration to support a contract ;* so is the settlement of family disputes.’° An adjournment of a suit in a justice’s court is a sufficient consideration for an agreement." Labor done and services rendered for one, without his request or privity, however beneficial or meritorious, as saving his property from the fire, affords no ground of action.? A request by a father that a physician will attend his son, who is of full age, and sick at his father’s house, does not render the father liable to pay for the services rendered.¥ An agreement to forbear to sue, for a reasonable time, is a consideration certain enough upon which to sustain an action.“ Forbearance, either limited or general, is a good consideration for a promise to pay the debt of a third person.” In assumpsit on a promise to pay the debt of another, in consideration of forbearance, the fact that the debt was not due at the time of the promise, or that it was voidable in conse- quence of the infancy of the debtor, or that it was barred by the act of limitation, furnishes no defence to the action.!® An undertaking to answer for the debt of another, though in writing, and signed by the defendant, is void, if no consideration between the plaintiff and defendant, either of forbearance or otherwise ;'7 unless the undertaking be contemporaneous with the original debt."® An injury to the party to whom the promise is made, ora benefit to the party promising, is sufficient consideration.” By act 26th April 1855, it is provided, that no action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him authorized. But the act shall not apply to or affect any contract, the consideration of which shall be a less sum than twenty dollars.” 148. & R. 483, 1 P.& W.32. 67 Penn. St. 1° 105 Penn. St.121. Ibid. 31. 891. 69 Ibid. 81. 1 1 Cow. 99. 28 W. 4&5. 31. 67 Penn. St. 217. 69 [bid. 81. 12 20 Johns, 28. 8 92 Penn. St. 447. 18 4 W. 247, 412 W. N.C. 165. 106 Penn. St. 57, 1412~P. & W. 383. 5 2 Kent’s Com. 463. 1 Bouv. Inst. 237. 6 1% 3W.&S8. 420. Wheat. 404. 16 5 Ibid. 476. 6 1 Bro. 109, 17 11 Johns. 29, 72W.104. 3 Ibid. 352. 18 6 Whart. 437. 8 5 Binn. 33. 28 Penn. St. 179, 94 Ibid. 218. 19 3 Johns. 100, 6 a 8. & R. 425, 93 Penn. St. 470. 8W.N. 9 Purd. 943, CONVICTS. ‘991 This statute does not apply to a direct promise to pay for work to be performed for another. The liability of the promisor in such case springs out of the perform- ance of the promisee, and the consideration moves from the one directly to the other ; consequently, it is not within the statute.’ To bring a case within the act, the promisee must be the original creditor? If the old debt remain, the contract is not an original undertaking, and is therefore within the statute.2 An agreement made between parties prior to or contemporaneously with their executing a written obli- gation as sureties, by which one promises to indemnify the other from loss, is not required to be in writing.* A contract required to be in writing must appear with reasonable certainty, with- out recourse to parol proof, from the instrument itself, and parol testimony cannot be admitted either to contradict or to vary it. The authority as an agent by whom the contract is signed need not, under this act, be in writing, but may be proved by parol. It is well settled, however, that such agent must be a third person; and that the other party to the contract is not competent to act as agent for the party intended to be charged.® The consideration upon which the contract is made need not be expressed in the writing, but may be proved by paroi.® Since the passage of this act, an indorser of a uote, whose name is written before that of the payee, is prima facie liable as second indorser ;’ and he is entitled to the privilege of an indorser, in a suit by the payee.® Convicts. I. Punishment for importing convicts. III. Deduction from sentences for good behavior. II. Actions against convicts. I. Act 31 Marcy 1861. Purd 388. Secr. 71. If any master or commander of any ship, boat or other vessel, arriving from any foreign country, place or port, at any port, harbor or place within this commonwealth, shall knowingly bring with him any person, either as a passenger, working hand or otherwise, who shall have been convicted of any offence in any foreign country or place, which, if committed within this commonwealth, would have subjected the offender to imprisonment at labor, with intent to land such person or permit him to land, such master or commander shall be guilty of a mis- demeanor, and on conviction thereof, be sentenced to pay a fine not exceeding three hundred dollars, and undergo an imprisonment not exceeding one year. II. Act 31 Marca 1860. Purd. 388. Sect. 71. In all cases of felony heretofore committed, or which may hereafter be eommitted, it shall and may be lawful for any person injured or aggrieved by such felony, to have and maintain his action against the person or persons guilty of such felony, in like manner as if the offence committed had not been felomiously done; and in no case whatever, shall the action of the party injured, be deemed, taken or adjudged to be merged in the felony, or in any manner affected thereby. Act 31 May 1718. Purd. 387. Szcr. 18. Where any person or persons charged, committed to prisun, or con- victed of any of the said capital crimes, being justly indebted to any other person or persons, he or they so indebted may be arrested, or their goods and chattels attached, to answer the suits of their respéctive creditors; who, making due proof that the debts or sums demanded are really and without fraud due, shall recover judgment for the same, and executions may be awarded against the lands, goods and chattels of such defendants, as is usual in other cases.® 1 30 Penn. St. 138. And see 38 Ibid. 302. 6 45 Penn. St. 345. 2 54 Ibid. 118. 7 59 Ibid. 144, 60 Ibid. 35. 85 Ibid. 99. 3 50 Ibid. 52. 54 Ibid. 118. 64 Ibid. 406. 8 11 Ibid. 460. And see 34 Ibid. 58. 12 N. Y. 462 9 The act 12 April 1870 extends this provision 4 Phila. 75. See 31 Penn. St. 259-60. to prisoners in county jails. Pamph. 32. 292 CORONER. Act 13 Jung 1836. Purd. 387. Secr. 78. A writ of attachment may be issued against a person under sentence of imprisonment, upon conviction of a crime by a court of competent jurisdiction, and such attachment may be dissolved in the manner hereinbefore provided in the case of a foreign corporation, and not otherwise; but if, in such case, the term of imprisonment of the defendant shall elapse, or if he shall be otherwise legally discharged therefrom, before the money shall be paid, it shall be lawful for him to put in and perfect special bail to the plaintiff’s action, and thereupon the security which may have been given by him in lieu of bail, shall cease and become void, and any deposit which may have been made (as) aforesaid, shall be restored to him. Aot 16 Jung 1836. Purd. 387. Sxor. 21. If any person against whom a judgment in a civil action of (or) proceedings shall have been rendered, shall be charged, committed to prison or convicted of any crime, it shall be lawful for the plaintiff in such judgment to have execution thereof against the real and personal estate of such person, in like manner as in other cases. III. Aor 21 May 1869. Purd. 562. Sxct. 21. All prisoners who have been or shall hereafter be convicted of any offence against the laws of the state of Pennsylvania, and confined in any state prison or penitentiary in execution of the judgment or sentence upon such convic- tion, who so conduct themselves that no charge for misconduct shall be sustained against them, shall, if the governor shall so direct, have a deduction of one month on each of the first two years, of two months on each succeeding year to the fifth year, and of three months on each following year to the tenth year, and of four months on each remaining year of the term of their sentence; and shall be entitled to their discharge so much the sooner, upon the certificate of the warden or prin- cipal keeper of such prison or penitentiary, with the approval of the board of inspectors of the same. Of the Coroner, I. Of the office and duties of the coroner. II. Forms used in the coroner’s office. I. THe coroner is an offiger, so called, because he hath principally to do with pleas of the crown.’ In this state, coroners are elected by the citizens of the respective counties at the general election, and are commissioned by the governor. They hold their offices for the term of three years, if they so long behave them- selves well, and until a successor be duly qualified; but they are re-eligible, Vacancies in the office are filled by an appointment by the governor, to continue until the next general election, or until a successor shall be chosen and qualified? No person is eligible who has not been a citizen and inhabitant of the county for one year next preceding his appointment.® Coroners are required, by the act of 1834, before they are commissioned or exe- cute any of the duties of the office, to enter into a recognisauce, and become bound in a bond, with at least two sufficient sureties, in one-fourth of the sum required from the sheriff of the county, conditioned that they will “ well and truly perform all and singular the duties to the said office of coroner appertaining.” The sureties are to be approved by the judges of the court of common pleas ; the recognisance is to be recorded ; the names of the sureties are to be entered by the prothonotary upon his judgment docket; and the recognisance becomes a lien upon all the real estate of the coroner and his sureties, within the county; and it stands as security not only to the commonwealth, but to all persons whomsoever for the faithful dis- charge of the duties of the office.‘ 11 Bil. Com. 346. 5 Thid. 2 3. 2 Const, art. XIV. 2 1-2. 4 Purd. 397-8, CORONER. 293 The office and power of the coroner are ministerial and judicial. The ministerial power of the coroner is only as a substitute for the sheriff; for when there is a vacancy in the office of sheriff, or when a just exception is taken to the sheriff, for suspicion aD as that he is interested in the suit, or of kin either to the plaintiff or defendant, the process must be awarded to the coroner, in place of the sheriff, to be executed. And his duties in relation to the execution and return of such process, are precisely the same as those of the sheriff in other cases.} The judicial duties of the coroner are principally prescribed by the statute of 4 Edw. I., ‘concerning the office of the coroner.” The,chief of these duties is to inquire when amy person is slain, or dies suddenly, or in prison, concerning the manner of his death ; and for this purpose he must summon a jury, and hold an inquisition, on view of the dead body; for if the body be not found, the coroner sannot sit.? Justices of the peace ought to inform themselves in relation to the duties of the coroner, in this respect, inasmuch as it is provided by the act 27th May 1841, § 15, ‘“‘That in all cases where by law the coroner of any county is required to hold an inquest over a dead body, it shall be lawful for a justice of the peace of the proper county to hold the same, where there is no lawfully appointed coroner, or he is absent from the county, unable to attend, or his office is held more than ten miles distant from the place where the death occurred or the body was found; and said justice shall have like power to select, summon and compel the attendance of jurors and witnesses, and shall receive like fees, and tax like costs, and the inquest shall have like force and effect in law: Provided, That no fees or costs shall be allowed or paid said justice or inquest, until the proceedings are submitted to the court of quarter sessions of the proper county, and said court shall adjudge that there was reasonable cause for holding said inquest, and approve of the same.”*® A coroner in his judicial capacity cannot appoint a deputy.* The justice should bear in mind, that he has no power to hold an inquest over a dead body, except in the cases provided for in the statute. The prevalent notion that a justice of the peace has concurrent power to inquire into the circumstances of a sudden or violent death, upon view of the body, is without authority in the law. _The statute of 4 Edw. I. commands the coroner alone to go to the place where any one is slain or has suddenly died; and by warrant to the bailiffs or constables, to summon a jury from the neighboring towns, to inquire into the manner of the killing, or the circumstances of the death. From the words of the statute, it results, that the coroner’s jurisdiction is a special one, and that no one else can take an inquisition in the manner prescribed ;° except in the cases enumerated in the act of 1841. The statute of 4 Edw. I. being wholly directory and in affirmance of the common law, the coroner is not thereby restrained from any branch of his power, nor excused from any part of his duty, not mentioned in it, which was incident to his office before ; and therefore, though the statute mentions only inquiries of the death of persons slain, drowned or suddenly dead, yet the coroner ought also to inquire of the death of those who die in prison® But by the act of 29th March 1819, the coroner of Philadelphia county is not to hold an inquest on the body of any prisoner who may die in the common jail of that county, unless required by the inspectors, or in cases of death by violence.? And by act of 16th April 1845, he is prohibited from holding an inquest on the body of any deceased person, unless he shall have died of violent death. The act 22d March 1867, however, provides that he shall hold an inquest on the body of any person who shall have died of violent death, or whose death shall be sudden, provided such sudden death be after an illness of less than 1 Rob. Dig. 106. give him notice of the death, and of the necessity | 21 Bl. Com. 348, Being a judicial officer he of his official attendance. Pamph. 740. has power to compel the attendance of witnesses, 41 Chit. 74§. The coroners of Bucks, Chester, by attachment. 11 Phila. 387. Northampton, Philadelphia, and Schuylkill have 8 Purd. 401. The act of 19 April 1856, pro- been authorized to appoint deputies, by special vides that this section shall not hereafter autho- statutes. See Purd. 399. rize the holding of an inquest by a justice of the 5 6 Whart. 672. peace, within the county of Allegheny, except in 6 2 Hawk. P. C.c. 47. Rob. Dig. 104. cases where it is impracticable to obtain the per- T Purd. 401, 1081. sonal attendance of the coroner, after notice given 8 Ibid. 401. to him, or reasonable and proper efforts made to 294 CORONER. 24 hours, and no regular practising physician shall have been in attendance within that time ; or that suspicious circumstances shall render the same necessary ; which said suspicions shall first be sworn to by one or more citizens of the city.’ : ; The subjects of inquiry for a coroner’s inquest are cases of sudden and violent deaths, whether they take place from the visitation of God ; by misfortune (as if sudden death ensue in consequence of a fall or other casualty) ; by suicide ; or by the hand of another, whether by murder, manslaughter, in self-defence or by acci- dent. But he is only to hold an inquest where there has been a violent and un- natural death, or reasonable suspicion of such a death; an accident superinducing disease and death, at the end of days and weeks, is not a case for an inquest. There ought at least to be a reasonable suspicion that the party came to his death by vio- lent and unnatural means; for if the death, however sudden, was from fever or other visitation of God, there is no occasion for the coroner’s interference.’ Where, however, death occurs from any violence done to a person by another, although such violence may not suddenly terminate the life of the party injured, it is still the duty of the coroner to hold an inquest.® : ; An inquisition of death, by the oath of lawful men of the county, is sufficient without saying they were of the next town, so that it appear at what place, and by what jurors, by name, it was taken, and that such jurors were sworn. At the pre- sent day they are selected and summoned by the coroner himself or his deputies. The number of jurors on a coroner’s inquest was not fixed by the common law; but by the act 16th May 1857, it is provided, that the number shall not be more than six to attend any one inquest.‘ It is clearly agreed, that the inquest must be taken on the view of the dead body, and an inquest taken otherwise by a coroner is void; therefore, where the body cannot be féund, or is so far decayed that a view can be of no service, no inquisition can be taken by the coroner. If the body be buried before the coroner comes, he ought to take it up and take his view thereof, within any reasonable time after such interment; but if he should take an inquest after a body hath been so long buried, that it may reasonably be presumed that the view of it could be of no manner of use for the information of the jurors, the court into which the inquisition is returned, will, in their discretion, refuse to receive or file it, upon affidavit of the whole cir- cumstances of the proceeding. Yet the court refused in one case to quash an indictment taken a year after the body had been buried, for factum valet, quod fiers non debit. It is not necessary that the inquisition be taken at the very same place where the body was viewed; and it hath been resolved, that an inquisition taken at D., on the view of the body lying dead at L., may be good. The jury must be sworn, and charged by the coroner to inquire, upon view of the body, how the party came by his death, whether by murder or misfortune, or felo de se. If slain, it is to be inquired where slain, by whom. and by what means or instrument; whether slain in the place where the body lies or not, of what length, depth and breadth are the wounds ; in what part of the body inflicted, and generally concerning all the circumstances of the party’s death. The inquest are also to inquire of all accessories before the fact, but they cannot inquire of accessories after the fact. If persons who are found guilty by the inquest be taken, the coroner may and must commit them to the sheriff, who is to confine them in prison. And by the statute 1 & 2 Philip & Mary, c. 13, the coroner is to take the examinations against the principal and accessories before the fact, and put them in writing, and bind over the witnesses by recognisance to the next jail delivery, and then to return the inquisition, examinations and recognisances. The coroner’s inquest must have all the evidence offered to them on oath, whether against or in favor of the accused, for it is not so much an accusation or indictment, as an inquest of office.® In order to aid him in the performance of his duty, the coroner has authority to order 2 post mortem examingtion, at the public charge; and the surgeon employed by him for that purpose, where the amount of compensation is not fixed by law,® is 1 Pamph. 532. set aside, or is absolutely void. 4 Park. 519. 2 1 East P. C. 382. 2 Hale H. P. C. 62. 6 In Lancaster county, the compensation for 8 2 Gr. 262. such service is fixed at $10, unless increased by 4 Pamph. 536. the county commissioners, by the act of 8 Febru- 5 Rob. Dig. 104-5. A coroner has no power to ary 1848. Purd. 401. This act has since been hold a second inquest, unless the first has been extended to the counties of Armstrong, Blair, CORONER. 295 entitled to a reasonable compensation from the county for his services. The coroner has authority to pledge the responsibility of the county for the compensation of all auxiliary services which are necessary to the proper execution of his office, and which he could by no other means command. When his duty requires him to disinter a body, for instance, he cannot be expected to do it with his own hands, or by hands paid for with his own means. True, he is entitled to fees, but they are given for particular acts of official duty; not as a fund for contingent expenses. The coroner is the proper judge of the necessity of holding an inquest and mak- ing a post mortem examination. It is sufficient for the surgeon summoned to aid him in it, to know that the proper officer of the county requires his services, and that he has power, by his contract, to bind the county for the payment of a reason- able compensation for them.? The county commissioners have no power to appoint a surgeon to perform such services, so as to preclude the coroner from selecting a proper person in his discretion. The fees of the coroner are fixed by the act 28th March 1814,$ as follows :° Fees of the coroner.—Viewing a dead body . “ ‘ : . $2.75 Summoning and qualitying an inquest, drawing and returning inquisition. 1.37% Summoning and qualifying each witness .. ‘ . 25 To be paid out of the goods, chattels, lands or tenements of the slayer (in case of murder or manslaughter), if any he hath, otherwise by the county, with mileage from the court-house to the place of viewing the body. Execating any process or writs of any kind, the same fees as are allowed to the sheriff, and the same mileage. In an action by a coroner against a county to recover his fees for the making of an inquest, his inquisition upon the body of the deceased, signed by his phy- sician, and signed and sealed hy himself and his jury of six, is admissible in evidence, even though the paper has never been returned to the court, and is not marked filed, nor recorded in any book kept by the coroner for that purpose. Where a coroner takes an inquest, the presumption is, that he acted in good faith and on sufficient cause. In a suit by him, however, to recover his fees, this presumption is not conclusive; evidence is admissible, that he acted in bad faith, and knowingly, without sufficient cause or reason. Where a coroner holds an inquest, at the same time, on several bodies of persons killed in one accident, he is entitled to fees in each case, for the qualification, drawing and returning of the inquisition ; also, to the fee in each case, for viewing the body ; and to the fee for. qualifying the witnesses in each case, and for summoning the jury; but only to one charge for mileage.” Coroner’s jurors are entitled to one dollar a day when the time . does not exceed six hours, and when the time exceeds that, to one dollar and fifty cents, and no mileage.® II. FoRMS USED IN THE CORONER'S OFFICE. 1. PRECEPT TO SUMMON A JURY. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Dauphin: We command you, immediately upon sight hereof, to summon and warn six good and lawful men, of- aforesaid, whose names are hereto annexed, to be and appear before Simeon Dunn, Esquire, coroner of the said county, at ——-, in the county aforesaid, at —— o’clock —— of this day; then and there to inquire of, do and execute all things as Bucks, Indiana, Montgomery, Northumberland and Washington. By act of 19 April 1856, the compensation in Northampton county is fixed at $15, unless increased by the commissioners of the county. Purd. 780 n. See act 18 March 1864, as to Butler county, Pamph. 60; act 30 January 1866, Pamph. 6, as to Schuylkill and Mercer counties (which, however, is repealed as to Schuylkill county, by act 28 June 1871, Pamph. 1380); and act 11 April 1866, as to Allegheny county. Pamph. 602. " 13 Penn. St. 462-5. 4 Ibid. 270. 2 26 Ibid. 156. 3 34 Penn. St. 301. 4 Purd. 402, See 2 Del. Co. R. 446. 5 See act of 9 March 1867, as to the fees of the coroner of Allegheny county. Pamph. 382. This was extended to Schuylkill county, by act 26 March 1868, Pamph. 495; and to Bucks county, by act 1 April 1868, Pamph. 554, The fees of the coroner of Cambria county are fixed by act 21 March 1868. Pamph. 412, 6 100 Penn. St. 624. 7 1 Chest. Co. R. 416. 8 Act 11 June 1879. Purd. 402. 296 CORONER. on our behalf shall be lawfully given them in charge, touching the death of Cc. re aa be you then and there, to certify what you shall have done in the premises, and further to do and execute what in our behalf shall be then and there enjoined you. Given under the hand and seal of our said coroner, at ——;the —— day of ——, A. D. 1882, Simzon Dunn, Coroner. [sEat.] 2. OatH [oR AFFIRMATION] OF FOREMAN. You do swear [or “ solemnly, sincerely and truly declare and affirm’’], that you will diligently inquire and true presentment make, on the behalf of the commonwealth, how and in what manner C. D. [or ‘‘a person unknown,” as the case may be], here lying dead, came to his death ; and of such other matters relating to the same as shall be lawfully required of you, according to the evidence offered to you or arising from the inspection of the body. So help you God [or, “and so you affirm”). After the foreman is sworn [or affirmed], the rest may be sworn [or affirmed ] together, as follows: “You and every of you do swear [or affirm], that such oath [or affirmation] as your foreman hath for his part taken, you and every of you shall well and truly observe and keep on your parts respectively. So help you God,” [or “and so you affirm’’]. 3. SuBPa@NaA. The Commonwealth of Pennsylvania, To T. B., D. O., K. M. and §. P., greeting: : We command you and every of you that, all business and excuses whatsoever being laid aside, you do in your proper persons appear before A. B., Esquire, coroner of the county of Dauphin, and an inquest now sitting at , in the said county, to testify the truth and give such information and evidence as you and every of you shall know, touching the manner in which C. D. [or “ a certain person unknown’, there lying dead, came to his death; and touching all other matters in relation to which you shall be examined. And this you are in no wise to omit, under the penalty that may ensue. Witness the hand and seal of the said A. B., at ——, the —— day of , a. D. 1882, A. B., Coroner. [sEat.] 4, OatTH OF A WITNESS ON A CORONER’S INQUEST. You do swear that the evidence you shall give to this inquest, touching the death of C. D. [or “ the person whose body has been viewed’’], shall be the truth, the whole truth, and nothing but the truth, so help you God. 5. INQUISITION OF MURDER, Commonwealth of Pennsylvania, Dauphin County, An inquisition indented and taken at ——, in the county of Dauphin, the day of , in the year of our Lord one thousand eight hundred and eighty-two, before me, Simeon Dunn, coroner of the county aforesaid, upon the view of the body of A. D., then and there lying dead, upon the oaths of C. D., E. F., &c., and solemn affirmations of K. L., M. N., &e., good and lawful men of the county aforesaid ; who being sworn and affirmed to inquire, on the part of the commonwealth, when, where, how and after what manner the said A. D. came to his death, do say, upon their oath and affirmation, that one A. M., late of —— aforesaid, gentleman [this word gentleman, and other words following, printed in italic, should be varied according to the facts of the case], not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the-—— day of , in the year of our Lord one thousand eight hundred and eighty-two, at the —— hour in the night of the same day, with force and arms, at , in the county aforesaid, in and upon the aforesaid A. D., then and there being in the peace of God and of the said com- monwealth, feloniously, violently and of his malice aforethought, made an assault; and that the aforesaid A. M., then and there, with a certain sword, made of iron and steel, of the value of one dollar, which he, the said A. M., then and there held in his right hand, the aforesaid A. D., in and upon the left part of the belly of the said A. D., a little above the navel of the said A. D., then and there violently, feloniously, voluntarily and of his malice aforethought, struck and pierced, and gave to the said A. D., then and there, with sword aforesaid, in and upon the aforesaid left part of the belly of the said A. D., a little above the navel of the said A. D., one mortal wound, of the breadth of half an inch, and of the depth of three inches, of which said mortal wound the aforesaid A. D. then and there instantly died ; so the said A, M. then and there feloniously killed and murdered the said A. D., against the peace and dignity of the Commonwealth of Pennsylvania. Le CORPORATIONS. 297 _ And the said jurors further say, upon their oath and affirmation aforesaia [as follows in this paragraph, or as the case may be], that A. A., of ——, yeoman, and B. A., of ——, yeoman, were feloniously present with drawn swords at the time of the murder and felony aforesaid, in form aforesaid committed; that is to say, on the said —— day of ——, in the year aforesaid, at —— aforesaid, in the county aforesaid, at the first hour of the night of the same day; then and there comforting, abetting and aiding the said A. M. to do and commit the felony and murder aforesaid, in manner aforesaid, against the peace and dignity of said commonwealth. _ In witness whereof, as well the aforesaid coroner, as the jurors aforesaid, have to this inquisition put their hands and seals, on the day and year and at the place first above mentioned. Simeon Dunn, Coroner. [szau. C. D., SEAL, E. F., &e., SEAL, Jurors, For other forms of inquisition, see Graydon’s Forms 315-16, and Dunlap’s Forms 273-6. Corporations. I. Erection of corporations, and corporate pow- III. Suits by and against corporations. ers. IV. Forms of process. Il. By-laws of corporations. V. Provisions of the Penal Code. I. A Corporation is a body politic, or incorporated, so called as the persons are made into a body, and of capacity to take and grant, &c., or it is an assembly and joining together of many into one fellowship and brotherhood, whereof one is head and chief, and the rest are the body, and this head and body, knit together, make the corporation; also, it is constituted of several members, like unto the natural body, and framed by fiction of law to endure in perpetual succession (or for a certain limited time). Corporations, in Pennsylvania, are either created directly by act of assembly or by the courts, in accordance with certain principles, and for certain purposes laid down in a previous law, within the provisions of which certain persons associate ; and it being certified by the proper authorities that the association have, in all respects, complied with the conditions and requirements of the law, they, the asso- ciators, are, for the purposes expressed in their articles of association, declared and acknowledged as a corporation, and granted the powers and immunities appertaining to such associations.” A charter of incorporation cannot be declared void in a collateral suit; it can only be vacated by a scire factas to repeal it, or on a suit of quo warranto at the suit of the commonwealth.* A corporation has no other powers than such as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted. A statute restraining any person from doing certain acts, applies equally to corporations or bodies politic, although not mentioned.t A corpo- ration derives all its powers from its charter, and from it the duties, obligations and liabilities of its officers are to be collected. A corporation may, without seal, enter into a contract express, or even implied.® The seal of a corporation is prima facie evidence that the contract has been duly entered into by ‘hem. By the comity of nations, foreign corporations are permitted to make contracts within their jurisdiction, when not contrary to the known policy of the state, nor injurious to its interests.® A corporation may be a trustee.® 1 Bac. Abr. 64S & R16 2W.&8.74. 1 WN. C.%, 2 Purd. 405, 40. Q 31 R. 426. 768. & R. 16. 415 Johns. 358. 27 Penn. St. 339. 75 Ibid. 8 1 Pars.180. A foreign corporation may take 291. a mortgage upon land in this state, as security 53 P. & W. 502. A corporation, howover, for aloan of money. 91 Penn. St.491. 8 W.N. possesses such incidental powers as are expedient C. 430. and necessary for effecting the primary object of 9» Bright.320. 4 Clark 39. its creation, 4 W. N.C. 33. 298 CORPORATIONS. The powers of 4 private corporation, which has not accepted any beneficial legis. lation under the constitution of 1874, are not affected by its provisions, nor by an act passed in pursuance thereof! The date of a deed is prima facie evidence of the time of delivery, but it is not conclu- sive§ From the fact of signing the jury may presume the sealing and delivery, although there be no reference to sealing in the body of the writing, if there be a seal affixed to the name.’ The pesumption of the delivery of a deed, arising from the fact of its being recorded, is one that may be rebutted and destroyed by counter-evidence.® Where there is a contract of purchase, or an equity of any sort, pre-existing in the grantee, the law will, in behalf of creditors, carry back the delivery, by rela- tion, to the date of the deed. But it is otherwise, as to a voluntary conveyance ; actual delivery, in such case, is essential to vest any interest in the land.® Wherea party produces a deed from a third person, purporting on its face to have been duly executed and acknowledged, the possession of it, by the grantee, or by the person producing it, is prim@ facie evidence of delivery. If a grantor execute a deed and retain it in his possession, and the grantee request its delivery to a third person, and the grantor give the deed to such third person, to be handed over to the grantee, when he calls for the same, it is in law a delivery of the deed, though not handed over to the grantee and found among the rantee’s papers after his death.™ g pap tg Thomas’ Oo, Litt. 263 (224). 2 BI. Com. 2107 Penn. St. 395, 31 Dall. 64. 18. &R. 72. 415. & R. 72. 5 Act 19 May 1893, Purd. 646, 2 Binn. 497. 4 Ibid. 140. In Philadelphia, by act 25 May 1878, deeds are only valid as against subse- quent purchasers and mortgagees, from the date A deed executed by husband and wife, for lands of record. Purd. 648. But sheriffs’ deeds are not within the act. 13 W. N.C. 95. 61P. & W. 402. 728 Penn. St. 413. 8 34 Ibid. 252. 9 36 Ibid. 383, 10 27 Ibid. 30. 11 26 Ibid, 422, DEEDS. 329 of the wife, but not delivered in her lifetime, cannot be rendered effectual to pass the estate, as against the heirs of the wife, by a delivery after her decease.! It is not necessary for a witness making probate of a deed, to sign the probate ; the certificate of the magistrate is sufficient? The certificate should state the official character of the officer, but if it do not, it may be proved adiunde? A grantee in a. deed which has been duly acknowledged, is at liberty, if the acknowledgment be not satisfactory, to make probate of it by a subscribing witness.‘ A justice of the peace cannot take an acknowledgment of a deed out of his proper county. He is required to indorse on the deed a certificate of the acknow- ledgment.® A justice bound to make title by a conveyance from a third person, is incompetent to receive the acknowledgment of the grantor’s wife.” It must appear by the justice’s certificate, that the wife was examined separate and apart from her husband* Buta privy examination is not requisite ; it is sufficient, that the hus- band be absent, although it takes place in the presence of others.® The wife will be presumed to have been of full age, unless the contrary be shown.!? If it do not appear that the contents of the deed were made known to the wife, the acknowledgment: is invalid, and the wife's title does not pass." The certificate ought to state substantially that the wife was separately examined; that she had a knowledge of the nature and consequences of the act she was about to perform ; and that her will, in the performance of it, was free.’ It is sufficient, if the certifi- cate state that she voluntarily assented to the deed ;* or did voluntarily seal and acknowledge ;!* or that she freely executed, &c.* It must appear by the certificate, in some way, that she executed the deed, with- out any coercion or compulsion of her husband." Defects in the certificate cannot be aided by parol testimony.” Nor can it be con- tradicted, except in cases of fraud and imposition ;* or, of concealed duress of the wife.® Ifthe husband use his influence and power over the wife, in such manner as to control her unduly, and so as to make her act under Avs will, and not her own, the deed is void. The certificate of the magistrate is conclusive in favor of one who accepted it in good faith, and paid his money, without knowing, or having reason to suspect, that it is untrue.” In such cases, knowledge of the falsity of the certificate ought to be brought home to the grantee, or of such facts as are suffi- cient to put him on the inquiry ;# this doctrine, however, is not applicable to the case of a mortgagee of a married woman’s property ; a justice’s certificate of the wife’s separate acknowledgment, which is false in fact, will confer no rights on a mortgagee.” But if the certificate be false in fact, and the grantee knew it, or knew of circumstances which should put an honest and prudent man upon inquiry, then it may be contradicted by parol evidence. When the certificate is overthrown by evidence that the examination was in the presence of the husband, or that the wife was not properly informed as to the nature of the transaction, or that she was under the influence of fraud or coercion, it goes for nothing.” Until delivery of the deed, the wife may revoke her assent, notwithstanding the acknowledgment. A deed not executed in conformity with the act of 1770, will not pass the wife’s right of dower. A deed by a married woman conveying her separate estate, to which her husband is not a party, is void ;* and so is a release of dower.” And 1 34 Penn. St. 24. 37 [bid. 87. Astowhatfacts 8 6 Binn. 435. are sufficient to rebut the presumption of the de- 14 3 Whart. 457. livery of a deed, arising from the fact of its being 1 Pet. C. C. 188, 453. recorded, see 34 Penn. St. 252. 16 6S. & R. 143-5. 25 W.& S. 223. 17 1 Binn. 470. 9S. & R. 268. 15 Ibid. 72. 3118. & R. 347, 13 Ibid. 386. 7 W. 334. 18158. &R.72. 3 Whart. 457. 15 Penn. St. 452. 23 Ibid. 231. 19 9 Penn. St. 14, * 23 Penn. St. 247. 20 27 Ibid. 22. 51 Ibid. 289. 578. &R.43. 1 Ash. 131. 21 16 Ibid. 451. 6 1 Binn. 480. 9S. & R. 273. 22 38 Ibid. 334. 77 W. 227, 28 27 Ibid. 22. ® 1 Binn, 470. 5S. & R. 289, 584. 9 Ibid. 24 13 Ibid. 85. 268. % 2 Binn, 341, 58. & R. 289. 7 Ibid. 43. 15 958. & R. 523-34. Ibid. 72. 1 Pet. C. C. 452, 26 16 Penn. St. 484. N6S.&R.49. 14Ibid. 84. 15 Ibid. 72. 27 Thid. 287. 248. & BR. 272. 27 Penn. St. 22. 330 DEEDS. the act of 1848 has not altered the law in this respect;! that act only applies to cases where the husband, by the wife’s authority, undertakes to transfer or incumber her estate; it makes no change in the form of acknowledgment where both join in the deed.? The record of a deed is constructive notice to all mankind. When a party executes a deed with a blank in it, which is afterwards filled up, with his assent, and he subsequently acknowledges the deed, it is valid, the filling up of the blank will not avoid it* Ifa deed which has been executed and acknowledged by the grantor, with a blank for the grantee’s name, be surreptitiously and fraudu- lently taken from the grantee’s house, and the blank filled up, no title passes thereby ; and a bond fide purchaser, for a valuable consideration, stands in no better situation than such fraudulent holder, especially, if the original grantor remain in possession of the property.® A deed so acknowledged or proven, as to be properly admitted to record, is admissible in evidence, without further proof of execution.® The registry of a deed, defectively proved or acknowledged, is not evidence of notice to a subsequent pur- chaser.’?. The recording of an instrument not within the purview of the recording acts, will not make a certified copy of it legal evidence.® Where two deeds are made, of different dates, from the same grantor to different persons, neither of which is recorded within six months, that which is first recorded will take priority.® An alteration in a deed, by a party claiming under it, after its execution, will render it void.® Thus the addition of subscribing witnesees, if fraudulently done, without the consent of one of the parties, will avoid it as to him." An dnterlineation in a deed, in the absence of testimony, is presumed to have been made before exe- eution; for, if altered afterwards, it would be a fraud, which is never to be pre- sumed.!* Where a deed, bond or other instrument is offered with an interlineation or erasure that is material, it is a question for the jury under all the circumstances, whether the alteration were made before or after signature’ The conveyance of an estate which lies in livery, and not in grant, is not avoided by an alteration in a material part of it; for the title being vested by a deed having by statute the force of livery of seisin, can be revested only by a reconveyance. But an alteration of a bond, bill or note, stands on a different principle. When it is made by a vol- untary act of the creditor, and increases or injuriously affects the responsibility of the debtor, whatever the motive for it, the security is gone. 1 18 Penn. St. 506. 19 Ibid. 361. 25 Ibid.326. Penn. St.9. 3 Gr. 429. 27 Ibid. 213. 1015 Penn. St. 462, 20 Ibid. 12. 1 Greenl. 2 24 Ibid. 253. 25 Ibid. 142. Evid. 3 564-8, 81 Y. 173. 1 8 Penn. St. 378, 518. 44 Bing. 123. 1 Greenl. Evid. 2 568 a, 12°15 Penn. St. 281. 2 Eng. L. & Eq. 102. 1 6 4 Whart. 382. Greenl. Evid. 3 564, n.4. Math. Pr. Ev. 39. 6 4 Penn. St. 13. 5 Gilm. 376. 15 23 Penn. St. 249. 32 Ibid. 423. 67 Ibid. 9. 73 Y,.186. 2 Binn.40. 5 Penn. St. 145. 14 19 Ibid. 122. 27 Ibid. 244. 35 Ibid. 80. And 84R. 444, 7W.&S.16. 35 Penn. St. 269. see 31 Ibid. 322. 210 W. 407. 4W.&58. 307. 5 Ibid. 49. 54 Sevaeatiee abs [ 331 ] Defalcation, I. The statutes regulating set-off. III. Of the subject-matter of set-off. II. Between what parties set-off may be allowed. IV. Of set-off before a justice of the peace, I. STATUTES REGULATING SET-OFF, Ir two or more dealing together be indebted to each other upon bonds, bills, bargains, promises, accounts or the like, and one of them commence an action in any court of this province, if the defendant cannot gainsay the deed, bargain or assumption upon which he is sued, it shall be lawful for such defendant to plead payment of all or part of the debt or sum demanded, and give any bond, bill, receipt, account or bargain in evidence; and if it shall appear that the defendant hath fully paid or satisfied the debt or sum demanded, the jury shall find for the defendant, and judgment shall be entered that the plaintiff shall take nothing by his writ, and shall pay the costs; and if it shall appear that any part of the sum demanded be paid, then so much as is found to be paid shall be defalked, and the plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury that the plaintiff is overpaid, then they shall give in their verdict for the defendant, and withal certify to the court how much they find the plaintiff to be indebted or in arrear to the defendant, more than will answer the debt or sum demanded, and the sum or sums 80 certified shall be recorded with the verdict, and shall be deemed as a debt of record.? In all cases where, by the verdict of a jury, any debt or damages shall have been found or certified in favor of the defendant, he shall be entitled to judgment and execution in like manner as if the verdict were in favor of the plaintiff? A defendant who shall neglect or refuse in any case to set off his demand, whether founded upon bond, note, penal or single bill, writing obligatory, book account or damages on assumption, against a plaintiff, which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be, and is hereby, for ever barred from recovering against the party plaintiff by any after-suit: but in case of judgment by default, the defendant, if he has any account to set off against the plaintiff’s demand, shall be entitled to a rehearing before the justice, within thirty days, on proof being made, either on oath or affirmation of the de- fendant, or other satisfactory evidence, that the defendant was absent when the process was served, and did not return home before the return-day of such process, or that he was prevented by sickness of himself, or other unadvoidable cause ; and the justice shall have power to render judgment for the balance in favor of the plaintiff or defendant, as justice may require.* II. BETWEEN WHAT PARTIES. Debts which can be set off must be such as are due in the same right.‘ It may be stated as a general rule, that the person having the right of action may set off a debt due to him as a trustee, against a debt due by him in his own right.® It is not essential, that the defendant should be able to sue for the demand in his own name.® The defalcation act of Pennsylvania has uniformly been construed to admit of a set-off, either by or against an executor or administrator.7 In an action by an administrator, on a promissory note given by the defendant to him, for the purchase- money of goods of the intestate sold by the plaintiff to the defendant, the defendant cannot set off a debt due by the intestate to him? 1 Act of 1705 3 1. Purd. 668. Thid. 93. 43 Ibid. 79, 51 Ibid. 418. 2 Act 11 April 1848 3 12. Purd. 669. 68. & R. 244, 8 Act 20 March 1810 @ 7. Ibid. 1134. 3 RB. 135. d 3P. & W. 492. 13 Penn. St. 158. 17 Ibid. 181. 8. & R.10. 12.Penn. St. 64. 99 Ibid. 5 6 €2Y.208. 4 Ibid. 461. 4W.15. 2R.111. 7 Ibid. 8 10 83 Ibid. 102. 34 Ibid. 239. 37 Ibid. 456. 38 191. ‘ 339 DEFALCATION. A surviving partner, sued as such, may set off a debt due by the plaintiff to him in his individual capacity" One of two defendants may set off a debt due to him by the plaintiff, unless there be some superior equity in a third person. But a debt due by the plaintiff to a co-obligor not summoned cannot be set off against the joint debi.® A debt due from the plaintiff to the defendant, and another, who was not sum- moned, is a good set-off against the plaintiff’s demand on the obligor who is summoned.* In an action by two or more administrators, the defendant cannot set off a debt due to himself by one of the administrators unconnected with the estate in right of which the action is brought.6 Jn an action by A., the defendant cannot set off an account for goods sold to A. B. as partners. In an action brought for the use of three persons, the defendant cannot set off a separate claim against each of them.’ A debtor may set off « debt due him by his creditor at the time of his death, though the estate of the creditor be insolvent.® Set-off is only allowable in favor of a defendant; consequently there can be no such thing as set-off against set-off.2 Set-off is allowed in order to prevent multi- plicity of actions, and ought not to be allowed so as to be the cause of new disputes.” An action on a due-bill, not negotiable, assigned to a third party, long after its date, is to be regarded as between the original parties, and subject to every legal set-off the maker may have against the payee.” In an action by one of several partners for his individual debt, an unsettled claim against the firm cannot be set off, even though it arose out of the same transac- ticn.7? III. SupsEcT-MATTER OF SET-OFF. It seems, that in all cases where the cause of action, which the defendant wishes to set off, arises from the same transaction on which the plaintiff founds his action, it may be defalked. Equitable as well as legal demands may be set off in Penn- sylvania. One judgment may be set off against another, when both are in the same right, though in different courts ;* but this cannot be done before a justice.® It is only permitted where it will infringe on no other right of equal grade; consequently, it is not permitted to affect an equitable assignee for value.” In an action to recover the price of cattle, the defendant may give in evidence, by way of set-off or equitable defence, that he had sustained damage by reason of the plaintiff not having delivered to him certain sheep purchased by him, at the same time, of the plaintiff, in an entire coutract.® Unliquidated cross-demands, arising out of a distinct contract, may be set off under our statute.!® A debt not due at the commencement of the suit, cannot be set off. A plea of set-off cannot be supported by a defendant upon a claim against the plaintiff, acquired after the institution of the suit. Buying the plaintiff's paper before action brought, entitles the plaintiff to set off.” But the mere possession of a note, which is offered as a set-off, is not evidence that it belonged to the defendant at the commencement of the suit; it is incumbent on him to show that it was acquired in proper time.* In an action on a promissory note given by the defendants in favor of the plain- tiff, it was held, that the defendants might set off a debt due by the plaintiff toa 1118. &R. 48, 11S. & R. 477. 212 Ibid. 252, 2 R.121. 13 Penn. St. 603. ™ 3 Binn. 135. 88. &R. 88, Seo 54 Ibid. 508. | 1 3 Y.132. 1M. 10. 898. & R. 379. 16 46 Penn. St. 519. 42R. 121, 17 2 W. 228. 10 W.N. C. 387, 5 Ibid. 111. 1% 128. & R. 275, 6148. & R. 300. 191 Dall. 452. 5 W. 51. 4 W. & S. 290. 5 77 W. 344, Thid. 459. 6 Ibid. 150, 159 179, 439, 29 Penn. 8 8 Penn. St. 403, 23 Ibid. 167. St. 192. 59 Ibid. 450. 86 Ibid. 287. 94 W.& 8.19. 1 Penn. St. 501, 13 Ibid. % 3 Dall. 505. 1 W.& 8.418. 29 Penn. St. 192 181. 48 Ibid. 512. 54 Ibid. 154, 219 W. 126. 22 Penn, St. 116. 29 Ibid. 192. 10 31 Penn. St. 72. 221 Dall. 452. See 43 Penn. St. 70. M 29 Ibid. 475. 33 22 Penn. St. 116. 29 Ibid. 192. 12 37 Ibid. 456. 89 Ibid. 392, DEFALCATION. 833 company or partnership of which the defendants were members, the other members of the company or partnership authorizing the same, A set-off is not admissible, where the demand against the plaintiff arises from an act done by him, of a tortious nature. But the defendant may give evidence of acts of nonfeasance or misfeasance by the plaintiff, where these acts are immediately connected with the plaintif’’s cause of action, such evidence not being admitted by way of defalcation, but for the purpose of defeating, in whole or in part, the plain- tiff’s cause of action.? In an action for services performed by the plaintiff, as housekeeper, and also for goods sold and delivered, evidence of acts of malfeasance by the plaintiff, in embez- zling the property of the defendant, is not admissible by way of set-off, but may be given under the plea of non asswmpsit and payment with leave, &.® The pendency of a suit to recover the claim offered to be set off, is no objection to its being used for that purpose.* The set-off is in the nature of a cross-action, and it may be withdrawn from the consideration of the jury? A defendant cannot avail himself by way of set-off of a debt against the plaintiff for which a suit is pending on an appeal from arbitrators, by the party offering such set-off® The defendant having a demand against the plaintiff, is not compelled by the defalcation act to set it off; he may do so, or he may bring an action against the plaintiff for it, as he pleases." Mutual demands do not necessarily extinguish each other by operation of law— set-off is permissive, not compulsory; and if there be no agreement between the parties, either may hold and set off his claim; or if he choose, assign it, and leave the other party to his legal remedy.® Parties having mutual demands against each other, may, by their agreement, extinguish them by a set-off; but the statute of defaleation does not, by any operation, per se, apply the demand of’ one party, in such case, against that of the other, so as to produce either a payment, satisfaction, or extinguishment of them.® On appeal, the defendant cannot set off a claim above $300. IV. SEvT-oFF BEFORE A JUSTICE. The 7th section of the act 20th March 1810, which compels a defendant in a suit before a justice to set off his demand against the plaintiff, is applicable to cases of unliquidated damages for breach of contract.? In an action before a justice of the peace to recover the price of goods sold and delivered, defendant may give in evidence, as a set-off, a special contract between him and plaintiff, by which plaintiff promised to do certain work for defendant, and did not, whereby defendant is entitled to recover damages for the nonfeasance.’? When a defendant claims a right to off-set a demand which he had against the plaintiff for a sum exceeding $300, the justice.is right in rejecting the evidence of such off-set, on the ground that it exceeds, in amount, his jurisdiction ; but if the demand of the defendant be composed of several items, he may set off such of them as do not exceed the jurisdiction of the justice.’ Where a justice of peace issues his process, which is served, according to law, on a defendant, the latter cannot turn round and sue the plaintiff before another jus- tice, for any debt or demand arising from contract not exceeding $300; but must submit the claim by way of set-off to the justice before whom the plaintiff has brought his suit. If, however, both suits be carried on at the same time, without ‘objection, both proceedings are valid.¥ A justice cannot set off against a judgment on his docket, a larger judgment before another justice.’ 15 Whart. 379. 9 9 Ibid. 179. 25 8. & R.122. 14 Ibid. 439. 2 Whart.95. 19 48 Penn. St. 456. ‘SIbid. 150. 4 Ibid. 226. 84 Penn. St. 319. 11 15 Penn. St. 361. 845, & R. 249. 2 4W.& 8.290. 6 Ibid. 155. 15 Penn. St. 362 48W. 444. 1W. 4S. 57. 18 3 P. & W. 469. 37 Penn. St. 456, 5 5 W. & 8.506, MJ Ash. 171. 2 Ibid. 146. 5 W. & S. 480. 8 5 W. 116. 18 27 Penn. St. 71. 7 7 Ibid. 500. 16 46 Ibid. 519. ® 8 Ibid. 39, 260, 406. 2W. & 8. 70. [ 334 J Dentists. Tue act 17th April 1876 prescribes the qualifications of persons ‘entitled to prac- tice dentistry in this state; and provides for their examination by a competent board, of which a record is to be made. And by the sixth section of the act, if any person shall practice dentistry, within the state, in violation of the act, he shall be liable to indictment, and shall, on conviction, be fined not less than $50, nor more than $200; and any fee paid to him may be recovered back.’ The act 20th June 1883 provides for the recording of dentists’ diplomas and cer- tificates and of the affidavits of those persons who, by the act of 1876, are entitled to practice without a certificate ; that is, those who at that time had been engaged in continuous practice, for three years or more. And the fourth section provides, that any person who shall violate or fail to comply with any of the provisions of either of the said acts, or should cause to be recorded any diploma or certificate, fraudulently obtained, or in whole or in part a forgery, or shall make any false statement to be recorded as aforesaid, shall be guilty of a misdemeanor, and on con- viction, be sentenced to pay a fine of not less than $50 nor more than $200 for such offence, for the use of the proper county.” The practice of dentistry is uow regulated by the act of 10th June 1893. Purd. 672. Mesertion, I. Statutory provisions. II. Judicial decisions. I. Act 13 June 1836. Purd. 674. Szor. 28. If any man shall separate himself from his wife, without reasonable cause, or shall desert his children, or if any wounan shall desert her children, leav- ing them a charge upon the district, in any such case, it shall be lawful for any two magistrates of the county,? upon complaint made by the overseers of the’ dis- trict, to issue their warrant to such overseers, therein authorizing them to take and seize so much of the goods and chattels, and receive so much of the rents and profits of the real estate of such man or woman, as, in the judgment of the said magistrates, shall be sufficient to provide for such wife, and to maintain and bring up such children, which sum or amount shall be specified in such warrant; but if sufficient real or personal estate cannot be found, then to take the body of such man (or woman), and bring him (or her) before such magistrates, at a time to be speci- fied in such warrant. Sror. 29. It shall be lawful for such magistrate, on the return of such warrant, to require security from such man or woman, for his or her appearance at the next court of quarter sessions of the county, there to abide the order of the court; and for want of such security, to commit such person to the jail of the county.* Sxcr. 30. The warrant aforesaid shall be returned to the next vourt of quarter sessions of the county, when it shall be lawful for the said court to make an order, for the payment of such sums as they shall think reasonable, for the purpose aforesaid, and therein authorizing the overseers to dispose of the goods and chat- tels aforesaid, by sale or otherwise, and to collect and receive the rents and profits aforesaid, or so much of either as, in the judgment of the court, shall be sufficient for the purpose aforesaid; but if there be no real or personal estate, it shall be lawful for the court, to commit such person to the jail of the county, there to remain until he or she comply with such order, give security for the performance thereof, or be discharged by due course of law.® ™ Purd 671. tion cases, by act 26 March 1846. Pamph. 173. 2 Thid. 672. 5 The act 31 March 1812, 5 Sm. 393, relating 2 The act extends to Philadelphia. 14 Phila. to the oity of Philadelphia, &c., is not hereby 361. And proceedings may be had before one repealed. 2 Penn. St. 138. 3 Clark 139. And magistrate, by act 14 April 1853 38. Pamph.418. see act 11 April 1848, relating to the city of Pitts- « In Philadelphia, one judge may act in deser- burgh. Pamph. 532, DESERTION. : 835 Aor 13 Apri 1867. Purd. 675. Sxor. 1. In addition to the remedies now provided by law, if any husband or father, being within the limits of this commonwealth, has or hereafter shall separate himself from his wife, or from his children, or from wife and children, without reasonable cause, or shall neglect to maintain wife or children, it shall be lawful for any alderman, justice of the peace or magistrate of this commonwealth, upon information made before him, under oath or affirmation, by his wife or children, or either of them, or by any other petson or persons, to issue his warrant to the sheriff, or to any constable, for the arrest of the person against whom the information shall be made as aforesaid, and bind him over, with one sufficient surety, to appear at the next court of quarter sessions, there to answer the said charges of desertion. Sxzcr. 2. The information, proceedings thereon, and warrant shall be returned to the next court of quarter sessions,? when it shall be lawful for said court, after hearing, to order the person against whom complaint has been made, being of sufli- cient ability, to pay such sum as said court shall think reasonable and proper, for the comfortable support and maintenance of the said wife or children, or both, not exceeding one hunded dollars per month, and to commit such person to the county prison, there to remain until he comply with such order, or give security, by one or more sureties, to the commonwealth, and in such sum as’ the court shall direct for the compliance therewith. Sct. 3. The costs of all proceedings by virtue of this act, shall be the same as are now allowed by law in cases of surety of the peace, to be imposed in like manner ; and all proceedings shall be in the name of the commonwealth ; and any wife, so deserted, shall be a competent witness on the part of the commonwealth, and the husband shall also be a competent witness. Secor. 4. Should any such person abscond, remove or be found in any other county of the commonwealth than the one in which said warrant issued, he may be arrested therein, by the said warrant being backed by any alderman or justice of the peace of the county in which such person may be found, as is now provided for backing warrants, by the third section of the act of the 31st of March 1860. Act 15 Aprin 1869. Purp. 676. Secr. 1. Whenever the court of quarter sessions of any county in the common- wealth shall, under the second section of the act to which this is a supplement, commit the person complained of to the county prison, there to remain until he comply with their order, or give security, &c., it shall be lawful for the said court, at any time after three months, if they shall be satisfied of the inability of such person to comply with the said order, and give such security, to discharge him from imprisonment. II. A husband who, by cruel usage, compels his wife to withdraw from his hab- itation, is liable to proceedings for desertion under the act of 18363 The reason- able cause which relieves a husband from a warrant, is only such as will relieve him from the legal duty of maintenance; and he can only be relieved from the main- tenance of his wife, for reasons in causes that would entitle him toa divorce.* The wife, in such case, is a competent witness to prove the marriage.® : It is not necessary that a wife and child should be declared paupers, in due form of law, to authorize proceedings against the husband for maintenance. Under the act of 1836, the complaint must be made by the overseers, not by the wife J but the proceedings may be instituted on an information made by a single overseer.* The law considers the desertion as an offence ;® and the defendant is not entitled 1 Tt has been determined, that all prior local return to the city solicitor. Purd. 676. acts were repealed, by implication, by the general 3 2 Clark 75. law of 1867. 13 Phila. 529. And see 71 Penn. 42Gr.162. 1 Luz. L. Reg. 221. St. 416. 5 2 Brewst. 149. 2 It is not absolutely necessary that the infor- 6 2 Gr. 162. mation should be returned, if the transcript set 72 Penn. St. 138. 61 Ibid. 105. And see 2 forth that a proper information has been filed. 15 §. & R. 363. 2 Bro. 212, Phila. 414. By act 9 April 1872, the magistrates 848. & R. 506. of Philadelphia are required to make monthly 9° 2 Ibid. 363. \ 336 DISTRESS FOR RENT. to notice, previously to the seizure of his property! The warrant must direct how much is to be seized! Choses in action are not liable to seizure; otherwise of a lease for years, which is a chattel real.2 To justify a warrant of arrest, it must appear that sufficient real or personal estate of the defendant could not be found.’ The right to hold to bail given to one magistrate is auxiliary to the proceedings before two justices.‘ The defendant hasa right to prove that he had not deserted his wife, but she had deserted him. The decree does not affect the rights of creditors.6 The proceed- ings are subject to the revision of the supreme court in certiorari ;’ but not until after final decree.2 Such decree is not affected by a subsequent discharge under the insolvent laws, which will only apply to payments then due? ; It is error, for the quarter sessions, upon the hearing of a defendant who is bound over to answer a charge of deserting his wife, to order payment of a weekly sum for the support of his wife, and a further weekly sum for the support of his child; the order must be limited to the original charge.” It is too late, after a hearing on the merits, to set aside the warrant for a mere defect of form.” To confer jurisdiction, under the act of 1867, the act of desertion must have been committed within the state? But the jurisdiction is not confined to the court of the county where the defendant has his residence. Ifthe father be really able and willing to maintain his children at home, he is entitled to their custody.”* The act is confined to a provision for future maintenance.” The court may make an order for maintenance, though the parties have separated by agreement, if the wife has no adequate means of support.® The court may permit the bail to surrender his principal in discharge of further responsibility.” In case of a surrender, and payment of all arrearages, the judgment entered on the bond will be ordered to be satisfied! rr ooo , Distress for Rent. I. Of the nature of a distress. V. Form of a warrant to distrain. II. What things are distrainable. VI. Summons to landlord to defalcate. III. Proceedings on a distress for rent. VII. Proviso in a lease waiving the benefit of the IV. Mlegal distresses, exemption law. I. OF THE NATURE OF A DISTRESS. A DISTRESS is defined to be the taking of a personal chattel out of the possession of a wrongdoer into the possession of the party injured, to procure a satisfaction for the wrong committed. But in modern times, the whole policy of the law respecting distresses has been changed, and a distress for rent is now no more than a summary method of seizing and selling the tenant’s property, to satisfy the rent which he owes.” This is a consequence of the statute authorizing the distrainor to sell the goods distrained for rent, in satisfaction in the amount due to him.” The right of distress is incident to every reservation of rent, so long as the reversionary interest remains in the lessor. But where the relation of landlord and tenant has ceased, by the determination of the lessor’s estate in the demised pre- mises, and his surrender of possession thereof to the owner of the paramount estate, 1158. & R. 239. Reg. 197. 22 Gr. 162. See act 1 April 1870, as to Schuyl- 1 71 Penn. St. 413. 2 Penny. 506. kill county. Pamph. 777. 14 64 Penn. St. 302. 71 Ibid. 413. 1 Luz. L. 8 2 Penn, St. 142, 61 Ibid. 105. See 3 Clark Reg. 46. 139, 16-71 Penn. St. 413. 42 Penn. St. 139. 16 2 Pears. 446. 628. & R. 363. 17 90 Ponn, St. 431. 6 § Ibid. 387. 18 12 W.N. C. 292. 7 2 Ibid. 363, 19 2 Bl. Com. 6. * 2 Poeun, St. 124. 20 Taylor, L. & T. 3 557. * 5 Whart. 82. See 3 W. N. C. 301, 540. 4 % Act of 21 March 1772. Purd. 1161-2. Ibid. 533. 22 2 Cow. 652, 660. The act of 1772 author- 10 2 Phila. 155. izes a distress “for any rent reserved and due Nl 2 Gr. 162. upon any demise, lease or contract whatsoever.” 12 64 Penn. St. 302. 8 Phila, 485. 7 Luz. L. Purd. 1161, DISTRESS FOR RENT. 837 his right to distrain for rent in arrear is at an end, though the tenant remain on the premises.’ A ground-rent reserved upon a conveyance in fee is, in Pennsyl- vania a rent-service, and to all rents-service the right of distress is incident of common right.’ To authorize a distress for rent, there must be an actual demise, and not a mere agreement for one.® To confer the right of distress, there must be a fixed rent reserved, or one that may be reduced to a certainty.* But it need not be payable in money; it may be payable in an article of commerce; as in iron;® or in wheat ;® or by any services, such as daubing and chinking a house, and payment of taxes,? So, where the les. see covenants to pay the lessor for all gas consumed on the premises, a sum due for gas consumed is to be regarded as rent in arrear, and may be distrained for.2 So also, the rent of one-third of the toll of a grist-mill, may be distrained for.® A rent is deemed certain, so as to give the right of distress, if capable of being rendered certain..° A reservation of a rent of $7000 perannum, or $6000 upon a certain contingency, is sufficiently certain to entitle the landlord to his remedy by distress." So, where a lease reserves a fixed rent in money, and an additional rent of $30 for each $500 of improvements put on the premises by the lessor, such additional rent may be distrained for.* The landlord can only distrain for rent in arrear; he can- not include interest ;* but the remedy by distress for rent is not limited to six years.* The landlord’s right to distrain after the determination of the term, is without limitation as to time; the statute gives him this right, wherever the rent is in arrear, if he retain the title and the tenant continue in possession.® Rent which, by agreement, is payable in advance, may be distrained for ;* as soon as it becomes payable by the terms of the demise ; but a distress cannot be made on the same day the rent becomes due. II. WHAT THINGS ARE DISTRAINABLE. It may be laid down as a general rule, that all chattels personal, upon the demised premises, to whomsoever belonging, are liable to be distrained for rent in arrear, unless particularly protected or exempted. Thus, the goods of a stranger, upon the demised premises, may be distrained ;¥ but only whilst they remain on the pre- mises.7 So, the goods of an under-tenant may be distrained on ;” and those of one who entered under the lessee, though he hold over, after the determination of it’ A wife’s separate property may be distrained for rent due by the husband; the act of 1848 does not alter the law of landlord and tenant.* And goods demised to the tenant, and used in his business, are liable to distress for the rent of the realty.* The act of 1772 empowers a lessor to take and seize as a distress for rent, any cattle or stock of his tenant, feeding or depasturing upon any part of the demised premises; and also all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which shall be growing upon any part of the demised pre- mises; and that the purchaser thereof shall have free egress and regress to and from the same, when ripe, to cut, gather and carry away the same.* If, however, the growing grain be sold by the tenant, it is not liable to be distrained before 1 102 Penn. St. 1. 2] Whart. 337. But in 44 Penn. St. 492, the court determined, that all feudal tenures having been abolished by the Revolution, a grantor on ground-rent can only distrain by virtue of the clause of distress embraced in his deed. This decision is very learnedly criticized by Mr. Cad- walader in his Treatise on Ground-Rents, and has not met the general approval of the profession. 3 2 Taunt. 148. 5 B. & Ald. 322. 2 Cow. 660. $2S8.& BR. 480. 2 R.12. 3 P.& W. 33. 1 en §. 413. 1 Penn. St. 126. 2 Ibid. 293. See i 24 i=") i an <<) - & &. 531, id. 163, inn. 228. Penn. St. 307. . 11. See 3 Add, 347. ill 648. . 134, 22 wes 0 nN 138. & R. 52. ESeanaan 4 he bi 3 5 5 1 2 2 5 12 75 Penn. St. 200. 18 6 Johns. 43. 2 Binn. 153. 14 8 Paige 212. 16 35 Penn. St. 162. 116. Purd. 1011. 16 2 Whart. 95. 3 Penn. St. 218. 4 Cow. 576. 6 Ibid. 103. 4 N. Y. 272. 17 1 Den. 113. 186 W.41. 2 Cr. C. C. 579. 19 3 Bl. Com. 7. 20 1R. 435. 74 Penn. St. 387. 88 Ibid. 93. 13 Wend. 256. 211 Dall. 440. 2 Phila. 176. 7 Ibid. 247. 22 9W.N.C. 574. But only upon the demisea premises, 2 Hill 447. See 97 Penn. St. 136. 28 91 Penn. St. 349. 24 38 Ibid. 344, % 3 Gr. 248. 26 Purd. 1160. 66 Ibid. 312. 1W.& 5S. 838 DISTRESS FOR RENT. removal; unless the vendee allow the same to remain uncut for an unreasonable time after they have become ripe But it has been determined, that trees growing on the ground of a nurseryman, who is a yearly tenant to the landlord, with the right to remove them from time to time, are not distrainable under the statute? There are certain exceptions to the general rule, that all personal chattels are liable to be distrained for rent. Thus, whatever is in the personal use or occu- pation of any man is, for the time, privileged and protected from any distress ;* as an axe with which a man is cutting wood; or a horse, whilst a man is riding him.® So, a loom cannot be distrained in the hands of the weaver ;* nor wearing apparel, if in actual use.” Commodities which cannot be restored upon replevin in the same plight and con- dition as that in which they were when taken, are not distrainable at common law; and therefore, the flesh of animals lately slaughtered cannot be distrained ;? so, of milk, fruit and the like.® Valuable things in the way of trade are not liable to distress ; as a horse stand- ing in a smith-shop to be shod, or in a common inn; or cloth at a tailor’s; or corn sent to a mill or market ;" or goods placed with a commission merchant on storage;” or goods stored with a warehouseman in the way of trade; or cattle received by a tenant to be pastured for hire ;!* or goods on the premises of an auctioneer, for the purpose of sale by auction ; or the goods of a boarder at a boarding-house.* For all these things are protected and privileged for the benefit of trade, and are sup- posed, in common presumption, not to belong to the owner of the house, but to his customer.” Things annexed to the freehold cannot be distrained, as doors, windows, mill- stones and the like; for they savor of the realty. So, fixtures which a tenant may sever from the freehold, and take away during the term, are not therefore distrain- able for rent. But trade fixtures, slightly attached to the freehold and which may be removed by the tenant at his pleasure, during the term, without destroying their character or injuring them, may be distrained; as a spinning-mule fastened to the floor of a mill with wooden screws. A fixture, however, which has been severed from the freehold for a temporary purpose, as a mill-stone severed from the mill, for the purpose of being picked, is not distrainable, whilst so severed.” But trade fixtures, if separated by the tenant, may be distrained.” It is also a rule, that goods in the custody of the law cannot be distrained. Thus, goods which have been previously levied upon, on an execution or foreign attachment, cannot be distrained for rent.7 But the landlord may distrain upon goods in the demised premises, which have been previously taken in execution, and released on an adverse claim and interpleader.% Goods seized by a sheriff, under a writ of replevin, but left by him, for a reasonable time, upon the demised premises, cannot be distrained ;* but goods replevied may be distrained for subse- quent arrears of rent. A landlord has no right to distrain upon the goods of an insolvent deceased tenant, on the demised premises, in the hands of his adminis- trator ; they are in the custody of the law.% A landlord’s right to distrain revives, upon an execution being waived.” The act of 9th April 1849 likewise exempts from distress for rent, property to the value of three hundred dollars, exclusive of all wearing apparel of the defend- ant and his family, and all bibles and school books in use in the family, which had 14W. & 8.346. 74 Penn. St. 387. 23 Wend. 462. And see 87 25 Moore 79. 2 Brod. & Bing. 262. Penn. St. 438, 3 3 Moore 96. 2 Ibid. 491. 8 Taunt. 431. 16 5 Whart. 9. But only such goods of a boarder 4 3 Bl. Com. 8. are exempt as are in his use as a boarder. 8 W. 56 T. R. 138. N. 0. 533. 9 Ibid. 574, See 3 L. R., C. P., 26. 6 Willes 517. 7 3 Bl. Com. 8. ™ 1 Esp. 206. 18 1 Q. C. 895. 8 2 Exch. 101. 19 105 Penn. St. 187, See 6 Exch. 295. 9 3 BL. Com. 9. 2178. &R. 413. 2W. & 8. 116, 10 Thid. 7. But horses and carriages at livery ! 5 Cow, 323. are notexempt. 4C.B.545, And see3 Binn. %4W. 4&8. 344. 1 Bro. 231, 1498. 1 W. Bl. 483. 23°11 Phila. 313. 13 BI. Com. 7, 2 Ad. & £.138. 3 Q. B. 39. 2% 1 Thid. 173. 12175.& R. 138. 7 W.&S. 452, 6Q.B. 891. % 2 Dall. 68,131. 4 .W. 42. 18 20 Penn. St, 287. 26 26 Pitts. L. J. 113. 14 20 Ibid. 422. 87 Ibid. 438, 27 1 Ld. Ken. 370. 15 8 Exch, 861. 10 C.B.55. 1C.& Mago. DISTRESS FOR RENT. 339 been exempted by previous statutes! But a sub-tenant or assignee, not recognised by the landlord, cannot claim the benefit of the exemption, as against a distress for rent (the goods being levied on as those of the original lessee) ; neither the relation of landlord and tenant, nor that of debtor and creditor, exists between such parties? Sewing-machines belonging to seamstresses, and private families, are specially exempted from distress for rent, by the acts of 1869 and 1870;° and so are leased pianos, melodeons and organs, by the act of 1876; provided the owner, his agent, or the lessee give notice to the landlord or his agent, that the instrument is leased or hired* ® Goods bond, fide sold by the tenant to an innocent purchaser, cannot be distrained after the expiration of the term; though such purchaser be the succeeding tenant and the goods remain on the demised premises. And the property of a tenant, hold- ing by a renewed lease, is not liable to distress for arrears of rent for the previous term, if'a third person has acquired an interest in the property. Otherwise, if he retain the title, and the tenant continue in possession.’ But goods conveyed in trust to indemnify the landlord and his indorser, against their responsibility, on a note discounted for the accommodation of the tenant, and left upon the premises, are not liable to distress for subsequently accruing rent, whilst the liability of the indorser continues.® i If the tenant fraudulently or clandestinely carry off from the demised premises his goods and chattels, with intent to prevent his landlord from distraining the same for arrears of rent, the act of 1772 makes it lawful for the landlord, within thirty days thereafter, to take and seize such goods and chattels, as a distress for rent, wherever the same may found; and to sell and dispose of the same in the same man- ner as if distrained upon the demised premises.’ Upon this act, it is to be observed, that a mere removal in the day-time, without the knowledge of the landlord, is not fraudulent.° That it is only the goods of the tenant that can be so followed and distrained ; not those of a stranger."' But that those of the tenant’s assignee may be followed and seized, if clandestinely removed.!? The act also protects the tenant’s goods, although fraudulently removed, after a bond fide sale to an innocent pur- chaser.¥ It is a trespass to enter the house of a stranger, to search for and distrain goods fraudulently removed, if no goods of the tenant be there found. If the goods of the tenant be once fairly and openly removed, or if clandestinely removed and thirty days elapse, or if fairly sold to an innocent purchaser, although such purchaser be the succeeding tenant, and the goods yet remain upon the land, they cannot be distrained by the landlord for rent.° If the tenant’s goods be fraudulently removed, they are prima facte liable to be distrained ; and it is for the claimant to show affirmatively that he is a bond fide purchaser without notice of the fraud.” In the city of Philadelphia, the like remedy is given to a landlord of following ‘and distraining upon goods fraudulently removed by his tenant, before the rent becomes due, by the act of 25th March 1825. But in such case the rent is to be apportioned up to the time of such removal; and the landlord is required first to make oath, before a judge, alderman or justice, that he verily believes the said goods were carried away for the purpose of defrauding him of his remedy by distress.” Under this act, an affidavit by the landlord “that he has just cause to suspect and doth believe,” that such was the tenant’s intent, is not sufficient. III. PRocEEDINGS ON A DISTRESS FOR RENT. The act of 1772 authorizes the lessor to distrain after the determination of the lease, provided he retain the title® But the sequestrator of a life-estate cannot 1 Purd. 1160, The exemption may be waived. 11 Dall. 440. 7 Phila, 247. 6 W. 34. 2 Pars. 282. 12 3W. & S. 531. 2 35 Penn. St. 369. 13 Purd. 1161. 3 W.246. 7 Exch. 618, 630. 5 3 Purd. 834, M. & S. 200. 4 Ibid. See 3 Luz. L. Reg. 99. 14 138. & R, 417. 5 3 W, 246. 15 3 W, 246. 51W.& §, 416. 16 7 Exch, 618. 7 35 Penn. St. 162, And see 13 Wend. 479. 17 Purd. 1161. This provision is extended to 33 Cr. 0. C. 411. the cities of Pittsburgh and Allegheny, by act 29 ® Purd. 1160. March 1870. Pamph. 669. 0 128. & R. 217. 3 W. &S. 533. 44 Penn. St. 38 1 Ash. 120. 477. 1 Ash. 121, 187. 19 Purd. 1159. - 340 DISTRESS FOR RENT. distrain after the death of the tenant for life If a lessee for years sub-let for a part only of his term, he may distrain for rent in arrear; otherwise, if he assion his whole term, reserving a rent.2 Where tenants in common make a joint lease, they may join in a distress for rent.? But joint-owners of chattels distrained for rent due on a joint lease, are not entitled to the benefit of the exemp- tion law. # The distress may be made by the landlord himself, or he may empower any individual to make it, as his bailiff; a parol authority is sufficient.’ But if the avarrant be in writing, the law requires no set form of words ;® it is sufficient, if the landlord and tenant be named, and power given to distrain for the rent.'' A constable is not bound to make a distress for rent; the law only requires his inter- terence, after the distress has been made, should an appraisement and sale become necessary. But whenever he does act, he acts officially, and renders his sureties liable® Taking a note, or obtaining a judgment for the rent, does not impair the right to distrain. A distress must be made in the day-time ;" a landlord caunot justify making a distress for rent, after dark.? A distress for rent, before sunrise or after sunset, is illegal, although there may be daylight.* Executing a distress-warrant in the night is a trespass, for which the party authorizing it is responsible.“ A distress cannot legally be made on Sunday.* A landlord is not justified in breaking open an outer door, in order to distrain ; not even the outer door of a stable.” But he may open the outer door of a stable, in the ordinary way in which other persons ‘using the building are accustomed to open it. An entry through an open window is lawful.’® But not, if it is fastened by means of a hasp;” or even if it be shut, but not fastened.2 A distrainor, however, may lawfully climb over a fence, and so gain access to the house by an open door.” If the party, having lawfully entered, be forcibly turned out of possession, he is justified in breaking open an outer door, in order to regain the possession.” The whole rent ought to be distrained for at once, and not a part at one time, and a part at another; but if the distress made for the whole turn out to be insufficient, either from the circumstance of not finding a sufficient distress on the premises, or mistake in the value of the property seized, a second distress may be made to supply the deficiency. As a general rule, to render a distress complete, there must be a seizure of the property distrained upon; but this need not be an actual seizure of the particular goods; it is sufficient, if the landlord give notice of his claims for rent and declares the goods which he names shall not be removed from the premises until the rent is paid.” And if the landlord come into a house and seize upon some goods as a distress, in the name of all the goods in the house, that will be a good seizure of all.* The distress must be made upon the demised premises; it cannot be made upon the highway, or on the common street.” The distress having been made, the act of 1772 requires, that notice of the taking, with the cause of the distress, be left, at the time of making it, at the mansion- house, or other most notorious part of the premises charged with the rent.% This notice must be in writing,” and should embrace a schedule of the articles levied on, as well as the amount of rent in arrear.*® The inventory should be sufficiently full to inform the tenant of the goods distrained, for which he may issue a replevin; but the landlord is not required to weigh and measure all the goods in a store 1 23 Pitts. L, J. 182, 17 16 Q. B. 254, 25 W. 134. 16 Johns. 159. 18 7 Exch. 72. 8 3W.&S. 531. 19 5 H. & N. 647. 4 44 Penn. St. 442. 20 14 0. B. (N. S.) 634. 54W.98. 3 W. 4&8. 531. 2121. R., Q. B. 590. 63W.&S, 531. 22°15 C. B. (N.S.) 458. 74 W. 98, 23°11 M. & W. 465 8 17 Penn. St. 169, Lewis, J. 24 3 Bl. Com. 11. 9 2 Clark 393. 26 105 Penn. St. 187. 10 3 P. & W. 487. 10 Md. 333. 38 6 Mod. 215, 11 16 Q. B. 254. 7 Stat. 52 Hen. 3,¢.15. Rob. Dig. 171. And 260. & P. 212. see 5 Hill 481. Anth. N. P. 339, ' 12H. & N. 647. 28 Purd. 1161-2. 14 16 Tl. 283. 29 8 Q. B. 1034. 1 | Bro. 243. 80 6 Exch. 234, 16 Thid. DISTRESS FOR RENT. 341 which he has distrained upon.) The omission to give this notice does not render the distress itself unlawful ; it is only necessary to warrant a sale of the gouds dis- trained.? It may be given to the tenant in possession, or to the owner of the goods distrained.* It is the duty of the tenant, immediately after a distress has been made upon his goods, to give notice of his intention to claim the benefit of the exemption law. For the exemption of certain goods from distress for rent is a privilege that may be waived by the tenant, either by the terms of his contract, or by an omission to claim the exemption at a proper time.* It is too late, after the property is put up for sale The object of the legislature was, to prevent a sale of the property; and every act or omission of the debtor that amounts to an acquiescence in, or an affirm- ance of the sale, is in direct contravention of that object.6 A sub-tenant, or assignee of the tenant, who has not been recognised as such by the landlord, can- not claim the benefit of the exemption law, as against a distress for rent; the goods being levied on as those of the original lessee, by whom no claim for the exemp- tion is made ;’ and joint-owners of chattels distrained for rent due upon a joint demise, are not entitled to the benefit of the exemption law.’ If the tenant claim the benetit of the exemption law, it becomes the duty of the constable or officer charged with the execution of the warrant, to summon three disinterested and competent persons, who are to be sworn or affirmed to appraise the articles which the debtor may elect to retain under the exemption law; and the property thus chosen and appraised is thereby exempted from levy and sale® The sheriff or constable may administer the oath or affirmation to the appraisers. The act of 1772 allows the tenant five days, after distress made, in which to re- plevy the goods ;" and during that period, the landlord may impound the goods | upon the premises;"? and he does not become a trespasser for continuing them so impounded for a reasonable time, after the expiration of the five days; seven days is not an unreasonable time, as he cannot sell without six days’ notice, or seven, if the last day falls on Sunday.* In computing the time, the day of making the dis- tress is to be excluded.“ At the expiration of that period the party distraining is required to call on the sheriff or constable (if not already done), who are required by the act of 1772 to be aiding and assisting therein, and to cause the goods to be appraised by two reputable freeholders; who are to be first sworn or affirmed by the sheriff or constable.® If the appraisement be made before the expiration of the five days, and the distrainor proceed to a sale, he becomes a trespasser ab initio." But a premature appraisement, after a lawful distress, will not have that effect, if there be no sale.” No person but the owner of the goods distrained can waive the appraisement and notice of sale; it cannot be done by a bailee of the goods levied on.® The tenant’s waiver of an appraisement, however, is valid as against his cred- itors.® The distress having been duly appraised, the act of 1772 requires the sheriff or constable, after six days’ public notice, to sell the goods and chattels so distrained for the best price that can be gotten tor the same, for and towards the satisfaction of the rent and the costs of the distress ; leaving the overplus, if any, in the hands of the sheriff, or constable or owner’s use.” The goods must be sold separately or in parcels; a lumping sale is illegal. They may be sold in such lots as shall be best calculated to bring the highest price.” A party who claims goods under a constable’s sale upon a distress for rent, must prove affirmatively that all the statutory requirements of such a sale have been complied with. The presumption that an officer of the law has done his duty and taken all the preliminary steps that are necessary to an official act must be limited to his acts as an officer; it has no application to a constable who distrains and sells goods 4 100 Penn. St. 389. Il Purd. 1161-2. 26 W. 40, 12 2 Dall. 68. 3 8w.&S. 303. 13 7 Phila, 195. See 6 W. 37. 46W.36. 23 Penn. St. 93. 36Ibid. 380. 2 14 6 W.37. 60 Penn. St. 452, Gr, 197. % Purd. 1162. 5 19 Penn. St. 255. 25 Ibid. 182. 16 60 Penn. St. 452. 6 21 Ibid, 247. 17 3 Penny. 406. 9 W. N.C, 438, T 34 Ibid. 36. 18 30 Penn. St, 287. 8 44 Ibid, 442, 19 4 Phila. 299. 9 Purd. 1160. 20 Purd. 1162. See 6 Whart. 460-4, 10 Thid. 834. 21100 Penn, St. 400. 342 DISTRESS FOR RENT. under a landiord’s warrant ; in such cases, he is the agent of the landlord, and not an officer of the law? The act of 1772, moreover, gives to the landlord a special action on the case, with treble damages, for any pound-breach or rescous of goods distrained for rent; either against the actual offender, or against the owner of the goods, in case the same be afterwards found in his possession.? And in case of pound-breach, the distrainor may also follow the goods and retake them.’ : As the tenant may have a set-off against the landlord’s claim for rent, the act of 20th March 1810, § 20, gives to justices of the peace jurisdiction in all cases of rent, not exceeding one hundred dollars, so far as to compel the landlord to defalcate or set off, the just account of the tenant out of the same; but the landlord may waive further proceedings before the justice, and pursue the method of distress in the usual manner, for the balance so settled. And if any landlord shall be con- victed, after such waiver, of distraining for and selling more than to the amount of such balance, and of detaining the surplus in his hands, he shall forfeit to the tenant four times the amount of the sum detained. The act also provides that no appeal shall lie in the case of rent, but the remedy by replevin shall remain as here- tofore.t Under this act, it seems, that the justice cannot proceed to judgment and execution ;> but his decision is prim@ facie evidence, on the issue of no rent in arrear, in favor of a stranger whose goods were levied on.6 No appeal lies by the tenant from the justice’s decision ;* but the landlord is not deprived of the right of appeal by the proviso in the act.§ The tenant may defalk any taxes upon the demised premises which he has been compelled to pay.® IV. ILLEGAL DISTRESSES. A distress may become illegal-in various ways; as by distraining when there is no rent in arrear ; by being excessive; by distraining for more rent than is due; or by a disregard of the provisions of the law relating to distress. The act of 1772 provides, that if a distress shall be made when, in truth, there is no rent in arrear, the owner of the goods so distrained and sold, his executors or administrators, may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, or any or either of them, his or their executors or administrators, recover double the value of the goods so distrained and sold, with full costs of suit.’ If no rent be due, the landlord is a trespasser ab initio." The constable who made the distress can only justify by showing that there was rent in arrear; the landlord’s warrant is no protection? The double damages can only be recovered against the person distraining, not against him in whose name the distress was made ;* nor can the double damages be revovered, unless the plaintiff declare upon statute.* The act, however, does not preclude the tenant from bringing his action of trespass guare clausum fregit, at common law, in which he may recover damages to a greater amount than the value of the goods distrained. For an excessive distress, the remedy is by action on the case, founded on the statute of Marleberge, which provides that distresses shall be reasonable and not too great; and he that taketh great and unreasonable distresses, shall be grievously amerced for the excess of such distresses.° But the entry and distress being lawful in part, for the rent actually due, and the whole being only one act, trespass will not lie; it is not like the case of a subsequent abuse of the distress ; but the proper remedy is an action on the case, founded on the statute.” Where an excessive distress is not wanton or wilful, the only damages recoverable are the fair value of 1103 Penn. St. 260. T 1 Bro. 69, 2 Purd. 1162. Where a statute gives double or 8 104 Penn. St. 514, treble damages, the jury who try the case may 9 Purd. 1162. assess the double or treble damages; but if they 1 Ibid. neglect to do so, the court may assess the damages 1 77 Penn. St. 423. on a writ of inquiry for that purpose. 16 Penn, 23 P, & W.30. 17 Penn. St. 163. 102 Ibid. 1 Bt. 256. Treble damages are three times the 18 77 Penn. St. 423. amount of single damages. Ibid. 14 93 Ibid. 454. And see 6 Cow. 103. 3 3 Dall. 70. 1% 68. & R. 286. 77 Penn. St, 423. 4 Purd. 1162, 16 2 Inst. 106. Rob. Dig. 170. 3 Bl. Com. 12, 5 4 Y. 237. 176 W. 41. 1 Burr. 590. 2 Str. 851. DISTRESS FOR RENT. 343 the goods, at the place and time distrained, with the cost of replacing them, and other actual injury, to which interest may be added? ee Where more rent is distrained for than is due, the remedy is at common law, and is not founded on the statute of Marleberge.? But trespass will not lie against a landlord for distraining, for more than was due, the party must bring a special action on the case at common law.* In such action, the only question is, how much rent was due and in arrear.* The plaintiff cannot recover damages for distraining for more rent than was in arrear, under a count for an excessive distress ; the one claim is at common law, the other under the statute.® After making a lawful distress, the landlord may commit an act which is in itself a trespass, and thereby become a trespasser ab initio;® as, if he sell without an appraisement,” or if he make a premature appraisement, and proceed to a sale of the goods distrained.® So, where a sale of the goods has been commenced, and the tenant tenders the difference between the amount realized and the full amount of rent claimed, with costs; a refusal of the tender, and continuance of the sale renders the landlord liable, in trespass, for the value of the goods afterwards sold® So, if the landlord distrain for more than is due, and do not procure an appraise- ment of the goods levied on, he is liable in trespass, notwithstanding the pendency of proceedings on the part of the tenant to defalcate.° But when the goods are replevied, the landlord does not become a trespasser by reason of an omission to appraise ; this may be done at any time, six days before a sale.™ V. FoRM OF WARRANT TO DISTRAIN. To G. H. Wuereas, C. D. is now indebted to me in the sum of ten dollars twenty-five cents for rent due on the first day of June, a. p. 1880, these are to authorize and empower you to ‘distrain the goods and chattels of the said C. D., which you shall find on the premises now or lately occupied by him, being a house situate No. 8 Strawberry street, in the city of Philadelphia, and the same retain in your possession until they can be law- fully appraised, and after due notice, “sell the said goods and chattels so distrained for the best price that can be gotten for the same, for and towards satisfaction for the rent for which the said goods and chattels are distrained, and of the charges of such dis- tress, appraisement and sale,” returning the overplus, if any, to the said tenant. And for your so doing, this shall be your sufficient warrant. Wirnzss my hand and seal, this tenth day of June, a. pv. 1880. A.B. [gzan.] VI. SUMMONS TO LANDLORD TO DEFALCATE. COUNTY OF BERKS, ss. The Commonwealth of Pennsylvania, To the Constable of C—— township, in the county of Berks, or to the next constable of the said county most convenient to A. B., greeting: WE commanp you that you summon A. B., of the township of C——, in the said county, to appear before J. R., Esquire, one of our justices of the peace in and for the said county, on the [fifteenth] day of [August], in the year of our Lord one thousand eight hundred and [eighty], at [eleven] o’clock in the [forenoon] of that day, to show cause, if any he has, why the just account of K. F., his tenant, whose goods have been distrained by him, the said A. B., for a sum not exceeding one hundred dollars, should not be defal- cated or set off out of the said rent. Witness the said J. R., Esquire, at C township aforesaid, the [tenth] day of [August], one'thousand eight hundred and eighty. J. R., Justice of the Peace. [szat.] VII. Proviso IN A LEASE WAIVING THE BENEFIT OF THE EXEMPTION LAW. And the said C. D., for himself, his executors and administrators, doth hereby covenant and agree, that all personal property on the said premises shall be liable to distress, and also all personal property, if removed therefrom, shall, for thirty days after such removal, be liable to distress, and may be distrained and sold for rent in arrear; the said C. D., for himself, his executors and administrators, hereby waiving all right to the benefit of any laws made or hereafter to be made, exempting personal property from levy and sale for arrears of rent. 1 102 Penn. St. 307. 7148. & BR. 399. 2 3 Bl. Com. 12 n. 8 60 Penn. St. 452. 8 6 W. 34. 100 Penn. St. 397. 9 100 Ibid. 389. 4101 Penn. St. 223. 0 27 Pitts. L. J. 17. 5 Ibid. 1 gW.N. C. 438. aianan TL:A 900 [ 344 ] Mistrict-Attorneys. Aor 31 Marca 1860. Purd. 680-1. Sror, 17. If any district-attorney shall, wilfully and corruptly, demand, take or receive any other fee or reward than such as is prescribed by law, for any official ’ duties required by law to be executed by him in any criminal proceeding; or if such district-attorney shall be guilty of wilful and gross negligence in the execu- tion of the duties of his office, he shall be guilty of a misdemeanor in office, and on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding one year, and his said office shall be declared vacant. Upon complaint in writing, verified by the oath or affirma- tion of the party aggrieved, made to the court in which any district-attorney shall prosecute the pleas of the commonwealth, charging such district-attorney with wilful and gross negligence in the execution of the duties of his office, the said court shall cause notice of such complaint to be given to the said district-attorney, and of the time fixed by the said court for the hearing of the same. If, upon such hearing, the court shall be of opinion that there is probable cause for the said complaint, they shall bind over or commit the said district-attorney to answer the same in due course of law. If the court shall be of opinion that there is no pro- bable cause for such complaint, they shall dismiss the same, with reasonable costs, to be assessed by the court. Sxcr. 18. If any district-attorney shall be charged, according to law, with any crime or misdemeanor, before, or bound over or committed by any court, to answer for wilful and gross negligence in the execution of the duties of his office, it shall be the duty of the court to appoint some competent attorney thereof, to prepare an indictment against such district-attorney, and to prosecute the same on behalf of the commonwealth, until final judgment, to whom a reasonable compensation, to be fixed by the court, shall be paid for his services, out of the county treasury. If such district-attorney shall be convicted of any crime, for which he may be sentenced to imprisonment, by separate or solitary confinement at labor, in addition thereto, his said office shall be declared vacant by the court passing such sentence. Act 31 Marca 1860. Purd. 679. Szcot. 29. No district-attorney shall, in any criminal case whatsoever, enter a nolle prosequt, either before or after bill found, without the assent of the proper court in writing first had and obtained. Aot 12 Marcy 1866. Purd. 680. Szor. 1. If any district-attorney within this commonwealth shall neglect or refuse to prosecute, in due form of law, any criminal charge, regularly returned to him, or to the court of the proper county; or if, at any stage of the proceedings, the district-attorney of the proper county and the private counsel employed by the prosecutor should differ as to the manner of conducting the trial, it shall be lawful for the prosecutor to present his or her petition to the court of the proper county, setting forth the character of the complaint, and verify the same by affidavit ; whereupon, if the court shall be of the opinion that it is a proper case for a criminal proceeding or prosecution, it shall be lawful for it to direct any private counsel employed by such prosecutor to conduct the entire proceeding, and where an indict- ment is necessary, to verify the same by his own signature, as fully as the same eould be done by the district attorney. The act of 29th March 1819, § 4, provided that, after indictment found by the grand jury, it should not be lawful for the attorney-general to enter a nolle prosequt therein, except in the cases of assault and battery, fornication and bastardy, on agreement between the parties, or in prosecutions for keeping tippling-houses, with DIVORCE. 345 the consent of the court! The act of 31st March 1860 still further restricts the powers of the district-attorney, but it does not appear to confer on him the right to enter a nolle prosequt, even with the consent of the court, in cases in which it was pre- viously forbidden.” In a proper case, the district-attorney may send a bill of indictment to the grand jury, without a previous binding over; but this power should be exercised under the supervision of the court. He has all the powers formerly vested in the deputy attorneys-general.* Diborce, Divorces are of two kinds, one total, the other partial; the one @ vinculo matri- lela [from the bond of matrimony]; the other @ mens@ et thoro [from bed and oard]. The causes of divorce from the bond of matrimony, are: 1. Impotency at the time of the contract. 2. Knowingly entering into a second marriage. 3. Adultery. 4. Wilful and malicious desertion and absence from the habitation of the other, with- out a reasonable cause, for and during the space of two years. 5. Cruel and barbarous treatment, endangering the wife's life. 6. Indignities offered to her person, so as to render her condition intolerable, and life burdensome, and thereby force her to with- draw from her house and family. 7. Where the marriage was procured by fraud, force or coercion, and has not been subsequently confirmed by the injured party. 8. Where either of the parties has been convicted of felony, and sentenced to an im- prisonment for a term exceeding two years. 9. Cruel and barbarous treatment by the wife, rendering the husband’s condition intolerable and life burdensome. 10. Per- sonal abuse, or such conduct on the part of either husband and wife, as to render the condition of the other party intolerable and life burdensome. The acts of 1817 and 1862, also allow a divorce from bed and board, for the 3d, 5th and 6th causes, and allow the wife such alimony as her husband’s circumstances will admit of. Al’mony, at common law, is that allowance which is made to a woman for her support out of her husband’s estate, in case of divorce from bed and board. Marriages within the prohibited degrees are void, and the courts are authorized to decree such marriages to be null and void, in the same mode, and after the same pro- ceedings as for a divorce. A wife’s absence with her husband’s previous consent, or subsequent approval, is not a malicious and willful desertion ; but such consent or approval is revocable, and the parties, by such revocation, are placed in the same position which they occupied at the time it was given; the party continuing such absence, will then be guilty of desertion, unless there be reasonable cause to justify it; which must be such as would itself be a sufficient ground of divorce. The crwelty, within the Pennsylvania statute, which entitles a wife to a divorce from her husband, is actual personal violence, or the reasonable apprehension of it; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe. A wife’s insanity is not a bar to a divorce for adultery, committed by her when she was insane. The refusal of a foreigner who arrives and becomes domiciled here, to receive his wife who follows him hither, is a virtual turning her out of doors, and the court of common pleas may, on her petition, decree her alimony. The removal and domicil of husband and wife in another state, is no bar to proceedings for divorce on the part of the wife, for causes occurring in this state, prior to the removal, if she has returned and resided in this state one year previous to the filing of the libel. By act of 26th April 1850, the jurisdiction of the courts is extended to all cases of divorce for desertion or adultery, notwithstanding the parties were, at the time of the occurrence of said causes, domiciled in another state. The act 9th March 1855, (Purd. 684), provided that it shall be lawful for the several courts of common pleas in this commonwealth, to entertain jurisdiction of all cases of divorce from the bonds of matrimony Mor the cause of personal abuse, or for 17 Sm. 227. 3 82 Ibid. 405. 11 Phila. 439. 1 Del. 50. 218 P.8. 497. 22 Ibid. 21. 4105 P. &. 484. 346 DIVORCE. such conduct on the part of either the husband or wife, as to render the condition of the other party intolerable and life burdensome, notwithstanding the parties were at the time of the occurring of said causes domiciled in another state : Provided, That no application for such divorce shall be made unless the applicant therefor shall be a citizen of this commonwealth, or shall have resided therein for the term of one year, as provided for by the existing laws of this commonwealth. : : And the act 22d April 1858 (Purd. 685), enacted that the jurisdiction conferred in and by the said act to which this is a supplement, is hereby extended to all cases of divorce from the bonds of matrimony, for the causes therein mentioned, where either of the parties were, or may be, at the time of the occurring of said cause, domi- ciled in another state or country: Provided, That no application for such divorce shall be made, unless the applicant therefor shall be a citizen of this commonwealth, or shall have resided therein for the term of one year, as provided by the existing laws of this commonwealth. The act 26th April 1850, 26, supra, made it lawful to grant a divorce for desertion or adultery, though the parties were at the time of the cause domiciled in another state. The supreme court decided in 1858 ‘that that act applied only to persons dimi- ciled in some other of the United States. This act of 22d April 1858, was evidently intended to extend the jurisdiction in all cases, but the draughtsman failed in his attempt, as he bunglingly entitled the act as a supplement to the act of 9th March 1855, supra, which only refers to divorces for personal abuse and indignities. The courts have no jurisdiction to grant a divorce for desertion or adultery where the par- ties were, at the time of the occurring of the cause, domiciled in a foreign country.? The act 20th June 1893,° confers jurisdiction to grant divorces for adultery, deser- tion or cruel treatment where the wife, having been a citizen, intermarries with a foreigner and is compelled to abandon her foreign domicile. * ForM OF LIBEL IN DIVORCE. In the court of common pleas No. — for the county of Philadelphia. Of December Term 1894, No. —. Between Mary Smith, lidellant, and John Smith, respondent. To the honorable judges of the said court. The libellant complains and says: 1. That the libellant and respondent were lawfully joined in marriage on the first day of January 1890 at Philadelphia in the state of Pennsylvania and from and after that time they lived together and cohabited in the relation of husband and wife. 2. That at the time said marriage was contracted the libellant was a citizen of the state of Pennsylvania and resided at Philadelphia in the said state; and the respondent was a citi- zen ‘of the state of New Jersey and resided at Camden in said state; that immediately after their said marriage, the said libellant and respondent resided together at Philadelphia in the state of Pennsylvania and have since resided in the said city from that time to the date of the grievances hereinafter set forth and said libellant still resides and has continued to reside in said city and state. That the present residence of the libellant is at No. 160 South 9th street, in the city of Philadelphia, in the state of Pennsylvania, and that she has been a citizen of the state of Pennsylvania and has resided therein for the period of one whole year previous to the filing of this libel; and that the present residence of the re- sronen is 1096 Locust street in the city of Philadelphia aforesaid (or, is unknown to ibellant). : 8. And the libellant avers that in violation of his marriage vow and of the laws of this commonwealth the said John Smith, the respondent, (on or about the first day of June 1890 wilfully and maliciously deserted this libellant, and hath since wilfully and maliciously de- oe ae absented himself from the habitation of this libellant without any just or reason- able cause). Or, (hath by cruel and barbarous treatment endangered your libellant’s life and offered such indignities to her person as to render her condition intolerable and life burdensome and thereby forced her to withdraw from his house and family). Or, (hath given himself ae adulterous practices and been guilty of adultery with divers women in this commonwealth). Or, (on the first day of January 1891 knowingly entered into a second marriage whilst the marriage with this libellant was subsisting, the said second marriage having been entered into on that date with one Jane Thompson at Camden in the state of New Jersey). Or, (was on the first day of January 1891 convicted in the court of quarter sessions for the county of Philadelphia of the crime of forgery and upon said conviction was sentenced by the said court to an imprisonment for three years). 4. Wherefore the libellant prays thab«a subpena may issue directed to the said John Smith, the respondent, commanding him to appear before your honorable court on Monday 130 P. S. 412. 230 W. N. C. 132, 8 Purd, 685. THE DOCKET. 347 December 3d 1894 to answer this libel and complaint; and also that a decree may be made by your honorable court divorcing her, the said libellant, from the bonds of matrimony be- tween her and the said respondent. Mary Smits. State of Pennsylvania, County of Philadelphia, } oy The above-named Mary Smith, being sworn according to law, says: That the statements contained in the above libel are true to the best of her knowledge, information and belief; and that the said complaint is not made out of levity or by collusion between her and the said respondent for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said libel. Sworn and subscribed before me this 1st day of November A. D. 1894. Mary Situ. E. A. DEVLIN, Magistrate, Court No. 8. Che Docket. I, The manner in which the justice should make IJ. Judicial authorities in relation to docket- his entries and keep his civil docket. entries. I. Noruine is of more importance, nothing more entirely essential, to the prompt and correct discharge of the duties of a magistrate, than a regular, well- kept docket. The justice should recollect, that when he begins a docket entry he cannot tell how important may be the principles involved, or the consequences which may result from the cause, whether civil or criminal, which he is about to make a matter of record. There is no cause which he enters upon his docket, however trivial, which may not be carried before a court, and his conduct undergo a public, judicial revision, either by certiorart or appeal. These considerations will, undoubtedly, induce a desire, that all his entries and his return, shall be of such a character, that they will bear the severest scrutiny, the closest examination. Make your docket-entries, on the instant that you transact the business which you record, and be especially attentive, on all occasions, to enter the date of the transaction. Do no act; issue no process; let nothing be done, in relation to a suit, without instantly making it, and the time it is done, a matter of record. Thus will you, at all times, with entire confidence, be able to refer to your docket as a faithful record of all that has been done in the suit of which it purports to be an authentic register. Be accurate in every entry; so accurate as to be at all times ready to be legally qualified as to the truth of every part of it. When you note that A. was affirmed, or B. was sworn, do not fail to note whether they were witnesses called by the plaintiff, or the defendant: thus John Scott, sw. p., Job Ox, aff.d. This detail to a magistrate, who has not had experience, may seem of little, or no, value; but nothing can be unimportant which goes to stamp the character of fidelity and minute accuracy upon the magistrate’s docket. Let it exhibit a full and faithful record of all that has been done, from the issuing of the first process to the termi- nation of the suit. When called upon to issue a subpana, note its issue and the date, and whether for plaintiff or defendant, and the number of witnesses whose attendance is required. The value of such minute details will be more and more estimated the longer the magistrate continues in the commission, because his opportunities of appreciating their value will increase in proportion to the amount of business he may be called upon to transact. The entries on the civil docket should exhibit the following particulars :— 1. The names of the parties, and the right or capacity, in which they sue, but the law considers them as almost equal to records; they fall within the rule of public books, which may be proved by sworn copies.® A sworn copy of the entries of a justice of the peace is admissible in evidence, with the same effect as the docket itself.? In certain cases, however, where an inspection of the original docket is necessary to the due administration of justice, the justice may be compelled to produce it in court, by a subpena with a clause of duces tecum ; for instance, where there is any question as to the genuineness of the alleged docket-entry ; where a subsequent fraudulent alteration of the original entry is alleged, &c. As justices of peace have not jurisdiction in all cases of contract, it ought to appear, from their docket entry, what is the nature of the contract upon which the action is founded. If it do not appear from the record that the justice had jurisdiction, the judgment, on certiorart, will be reversed.® A justice of peace is not bound to set out the evidence at large on his docket, but he must state the demand of the plaintiff, and the kind of evidence produced to support it, and in case of an appeal, he must return the whole proceedings.® The record is the only evidence of the cause of action.” Where a suit before a justice is terminated by any act or agreement of the par- ties, which amounts, directly or indirectly, to a discontinuance of the action, it is a part of the official duty of the justice to enter such act or agreement upon his docket; and the docket-entry is evidence of the same.” If by the transcript of a magistrate’s judgment, filed in the court of common pleas, it appears that execution was issued and returned, “ No goods and defendant not found,” it is sufficient to warrant a fiert facias [a writ to levy] without filing a certificate.¥ 1 Lambard’s Hirenarcha, 63, 66. 8 1 Bro. 339. 11 Phila. 348. 2 4 Inst. 170. 95 Binn. 31. 1 Bro. 207. 29 Leg. Int. 92. 3 2Ww.& S. 377. 1 Luz. L. Reg. 131. 2 Ibid. 191. * 6 Ibid. 50. 10 8 Phila. 636. And see 3 Leg. Gaz. 260. 1 5 7 W. 189, 192. Luz. L. Reg. 89. 6148.&R.440 4W.&8.192,-10 Penn. St. 1 21 Penn. St. 66, 161. 14 Ibid. 413. 32 Ibid. 539. 1 Phila. 25. 26 W. & S. 343, 7148. & R, 440 L 350 J Docket-Entries and frees. TuHE following docket-entries, civil and criminal, and the marginal fee-bills, noting the fee allowed by the act 2d April 1868, for every service performed by the justice and the constable, have been diligently and repeatedly revised by the writer of this note, and every entry and item of costs has been carefully verified. They are, there- fore, with confidence, recommended to the magistracy of the state as being, in all particulars, in accordance with the laws. The anxiety for accuracy in the entries and the items of cost has been the greater from the difficulties heretofore expe- rienced, and from not having been able to find entries and bills of costs upon which any reasonable reliance could be placed as to their accuracy. . Care has been taken not only to select docket-entries, embracing a great variety of subjects, but also to introduce into the proceedings those incidents which most frequently present themselves in the discharge of this department of the duties of a justice of the peace. ABBREVIATIONS USED IN THE DOCKET-ENTRIES, &c. Pig. Plaintiff; Deft. Defendant ; w. witness; sw. sworn; aff. affirmed ; subp. subpena; ¢. constable; atty. attorney; agt. agent; int. interest ; ex iss'd. execu- tion issued ; ew ret. execution returnable; m. miles; adjd. adjourned. REFERENCES TO THE DOCKET-ENTRIES, I. to IIT. Goods sold and delivered. XVI. For work and labor, and services. IV. A case in trover and conversion. XVII. A case before referees, V. Of trespass for damages, &c. XVIII. Horse and gig hire. VI. Penalty for taking illegal fees. XIX. On an assignment. VII. VIIL. TX. For work and labor done. XX. A case of nonsuit. X. Landlord and tenant’s case. XXI. Against bail. XI. Goods sold and delivered. XXII. On a promissory: note. XII. On a promissory note. XXITI. Money paid and laid out. KIIL. Goods sold and delivered. XXIV. For rent. XIV. Claim of a penalty for issuing a small note. XXV. XXVI. Amicable actions. XV. Tenant.against landlord. XXVII. JEREMIAH FINNY vs. Horatio Birney. I. Cryin sure. Walker, constable. “served, on oath, by producing the original summons to de- fendant, and informing him of the contents thereof, October Proceedings on a rule to show cause, &c. Summons issued 7th October 18938. J. Returnable 12th, at 9 to 10 o’clock, a. w.3 costs. the 8th.” And now, October 12th, parties appear; plaintiff uation, os | Claims $20 for goods sold and delivered to defendant. Demand Simmons 7 «6S 33($20. Defendant admits plaintiff’s claim; and judgment by Tet ntonfesea: 2: 50 | confession, for twenty dollars, and costs. Baccution cution °° 1 G3 |. Same day, defendant pleads freehold for stay of execution. Satisfaction... + . 15| 13th January 1894, execution issued; returnable February 3d. ‘casei Returned January 24th, with plaintiff’s receipt for the debt. 6. . . Serving summons, 50 | Costs paid into office. Mileage, 2m, circular . Serving execution ee 60 Mileage, 2m.circular. . into office. 1 Where the judgment is for 2 sum not ex- ceeding $5.33, there is no stay of execution. Where the judgment is for a sum greater than $5.33, yet not exceeding $20, the defendant shall have a stay of execution for three months ; where the judgment shall be above $20, and not exceeding $60, there shall be a stay of sia months ; and where the judgment shall be above $60, and not exceeding $100, there shall be a When the return of the constable is debt and costs paid into office, the justice should enter on his docket “money paid Received _| paid over to the plaintiff, his agent or attorney, and the person 80 receiving having signed the receipt on the docket, the pro- ceedings in that suit are concluded. satisfaction.” The money being stay of execution for nine months: Provided, That the defendant shall putin absolute bail, or a plea of freehold, which shall be accepted, and entered on the docket of the justice. The stay of execution is counted from the day on which the judgment is entered. Act 24 June 1885. But this does not apply to judgments for manual labor. DOCKET ENTRIES AND FEES. JosEPH BaRBARA vs. BensamMin Bynany. costs. Justice. Entering action. . «25 Summons. « © « « 25 Ret. and oath ee ee) Trial and judgment . . » 50 Bail oe ee 8 ew BH Execution . . +» + . 30 Return . . . . » 2. 15 Constable. Serving sums. . 50 Mileage, 2 m. circular + 20 Serving execution « 50 Mileage, 2 m. circular » 20 $3.35 WE L.Ic OVENSHINE vs. Witiiam ANCHORSMITH. cosTs. Justice, Entering action . . . 0 Summons ts e é i « 25 RBeturnandcoath . . + 25 One oath . : . ~~ «+ 10 Trialand judgment . ~ «+ 50 Revogalsenee: yin a 3 Receiving and paying over . . Satisfaction . 6: 5 ee 15 Constable. Servingsummons. . . + 50 Mileage, 2m.circular. . ~. 20 Wi.i1am DRINKHOUSE vs. Mary CoLpwater. costs, Justice. Enteringaction . . «+25 Summo. «ee ew Return and constable’s oath » 2% Continuance. . . - « 20 Subpoena, two witnesses . . 35 Subpoena, three w. . » . 45 Four oaths . - » 40 Trialandjudgment . . . 50 Appeal, &c. . * - = 21.00 Oath, &., of bail. =. » % 10 Constable. Serving summons, bycopy. =. 50 Mileage, 2 m, circular . » + 20 Serving two subps. personally . 1.00 Mileage,6 m circular. . . 60 —_ $6.05 801 II. Crvizn surr. Summons issued 2d October 1893. J. Walker, constable. Returnable the 7th, at 4 to 5 o’clock, p.m. ‘ Served, on oath, by producing the original summons to defendant, and informing him of the contents thereof, October 3.’ October 7th, parties appear; plaintiff claims $20 for goods sold and delivered. Defendant admits that he owes plaintiff $10 ; but denies the balance. Plaintiff produces his book of original entries, and is sworn thereto: whereupon judgment, publicly, for the plaintiff, for twenty dollars, and costs. Defendant enters bail for stay of execution. I am held in $45 as absolute bail for stay of execution. Signed, J. Ray, No. 500, So. 6th St, Execution issued 8th January 1894; returnable January 28th. Returned by the constable, indorsed “ No goods.” III. Civin surr. August 8th 1893, summons issued. G. Wallace, c. Returnable August 13th, at 10 to ll a.m. Served, by copy, at the dwelling of defendant, &c., on oath. Parties appear. Debt, balance of an account for goods sold and de- livered. Demand, $19.44. T. H. (sw.) plif. Defendant claims to set off a pair of shoes sold to plaintiff, charged in his book at $1.75. Plff. produces deft.’s receipt for the above shoes for $1.75. Judgment for the plaintiff for nineteen dollars and forty-four cents. August 30th, I become absolute bail in this case, in the sum of forty dollars, for stay of execution. Signed, A. Brut, No. 967, Arch St. Money paid into office, December 12th. Received satisfaction. Signed, W. OvENsHINE. IV. Trover anp conversion. Summons issued 7th October 1893. G. Wallace, constable. Returnable 12th October, 9 to 10 o’clock, a. m. Returned, on oath. “ Served, October 8th, by leaving a copy at defendant’s dwelling-house, in the presence of one of her family.” Parties appear. Plaintiff claims $20 damages in trover and conversion, for a gun belonging to the plaintiff, which he loaned to defendant, and which defendant has not returned, although requested. Demand, $20. Defend- ant asks a continuance, to which plaintiff does not object. Adjourned to the 14th inst., 9 a.m. Subpoena for two wit- nesses given for plaintiff. Subpoena for three witnesses for defendant: And now, October 14th, parties appear, E. F. Oy) plaintiff, G. H. (sw ) plaintiff, J. R. (aff.) and G. M. (sw.) for defendant. Having heard the parties, their proofs and allega- tions, judgment, publicly, for the plaintiff for $15 and costs. Defendant appeals. I am held as absolute bail in this case in $35, conditioned for the payment of all costs accrued, or that may be legally recovered against the appellant. Signed, B. Cooxz, No. 34, So. 13th St. Bail justified on oath. Same day, gave a transcript to de- fendant. 852 DOCKET FEES AND ENTRIES. Heyry Dunpas V. Trespass in pamaces. Warrant issued 7th October 1893. vs. J. Walker, constable, Same day defendant brought up. Plain WiuiraM Prrv. tiff appears and claims $35 damages in trespass for injury done or committed by defendant, on the 2d inst., on his ee real estate. Defendant says he is not guilty. E. H. (sw.) for plain- tiff. On hearing the proofs and allegations of the parties, 3 judgment, publicly, for the plaintiff for thirty-five dollars, and Pa ena suaaRaBe to | costs. Defendant claims stay of execution. ; Ball cn. t,t} Tam held in $75 in this case as absolute bail for stay of ma: . ! 15 | execution, 7th October 1893. C. J. Fox, No. 340, So. 4th St. Return of execution 6 A Signed, Al.ex. and return and satis” 1894, 8th April, execution issued; returnable 28th April. cosTs. Justice. Watering actio: . ah Hi: ee ARS Oapias . . . . faction. . Constable. reson capa: =< 24) | Execution returned indorsed by the constable ‘ No goods, and soeing exeoutfon : tt 89 | the defendant removed from the city. J. Walker, constable. Serving al. ex. and mileage’ < 90 | April 28th.’” The bail appears, May 10th, and pays the debt, $5.85 | 1Dterest and costs ; and the plaintiff assigns to him the debt, in- terest and costs. ‘‘ For a valuable consideration, I assign this judgment, &e., to C. J. Fox, the bail in this case.” Signed, Henry Donpas. October 20th, C. J. Fox desires that an execution may issue against the defendant. Execution issued and made retarnable November 9th. Int. $1.09. ForRM OF THE EXECUTION IN THIS CASE. CITY OF READING, ss. The Commonwealth of Pennsylvania, To the Constable of the Second Ward, or to the next constable of the said city most convenient to the defendant, greeting : Wuenrtzas Henry Dundas to the use of O. J. Fox, the bail of the defendant, on the 7th day of October 1893, obtained judgment before J. F., one of our aldermen for the said city, against William Pitt, for the sum of thirty-five dollars, damages in trespass, togethor with two dollars and ninety-three cents, the costs of suit, which judgment remains un- satisfied ; therefore we command you that you levy the said damages and costs on the goods and chattels of the said debtor, and indorse hereon the time at which you make your levy, and hereon, or on a schedule to be hereto annexed,! a list of the same, and within twenty days from the date hereof expose the same to sale by public vendue, you having given due notice thereof, by three or more advertisements, put up at the most public places in your ward, and returning the overplus, if any, of the said sale, to the said defendant. awa, for want of sufficient distress, that you take the body of the said defendant into custody, and him convey to the debtor’s apartment of the said city, there to be kept by the sheriff or keeper thereof until the damages, interest and costs aforesaid, shall be fully paid.J]* And of your proceedings herein, together with this execution, make return to our said alderman on or before the ninth day of November, in the year of our Lord one thousand eight hundred and eighty. Witness our said Alderman, at Reading, who hath hereunto set his hand and seal the 20th day of October, a. p. 1894, Nov. 5. Money paid into office. Received satisfaction. Signed, J. F., Alderman. O. J. Fox. {szau.] Indorsement on the back of the Execution, H. Dounpas, to the use, Ce 0. JR, vs. Winitam Pitt. bt + $35.00 Interest3 + 1.09 ‘oats 4,85 Al. ox 1.60 J, We, oe $41.94 |: Returnable Nov. 9th, page 178. ~ 1 The constable is authorized by law to indorse his levy either on the back of the execution or on a piece of paper attached to it; but the time at which he makes his levy must be indorsed on the execution itself. 2 When the law does not permit the imprison- ment of the defendant, the words inclosed in brackets in the execution should be carefully expunged by the justice before he puts it into the hands of a constable. 8 The justice should calculate interest on the amount of the judgment from the day on which the judgment was given, until the day on which the money is paid, or on which he issues his execution. DOCKET-ENTRIES AND FEES. F, A, AncHTERNacat vs. GaBRIEL JOHNSON, Sheriff of the county of Chester. costs. Justice. Entering action 2. Sw 8 25 Summons. .« « « « Return and oath ofconst. . . 25 Continuance. 8» - « - 20 Onecath .« «© «© « « 10 Appeal, &c. . Constable. Serving summons personally . 50 Mileage, 6 m. ciroular . . 60 Justice JUMPUP v8. Curistian KINGKILLER. costs. Justice. Enteringaction . . « © 2% Summons . , 0 2 Return and c. oath * 25 Two subpoenas . . ». « 50 Rule torefer. . + « « 15 Ruleof reference. . « «+ 25 Notice to referees. . «© « 15 Two subpoenas . Notice to parties . . - . 60 Entering be pai report . 80 eiving and pa: over. . 60 Satisfaction 2 . . > e . 1 Constable. Servingsummons. . « + 25 Mileage,1 m. circular. . . 10 Serving subp. 2 w. copy 1.00 Mileage, 2m. circular . « « 20 Serving notices on the referees, personally. . . . «© 1.50 Mileage, 3m. circular. . « 30 Serving subp. 2 w. personally . 1.00 Mileage,2m.circular . . . 20 Serving notices to parties . . 1.00 Mileage,2m.circular. . . 20 $10.10 23 353 VI. For rakinc 1LLecaL Fees. April 24th, 1894, summons issued. D. Rittenhouse, constable. Returnable, April 30th, 10 to ll a.m. Served on the defendant, on oath, by producing to him the original summons, and informing him of the contents thereof. Parties appeared April 30th. Plaintiff claims $50 penalty from the defendant, for that, within six months next before the commencing of this suit, he, the said defendant, as sheriff of the eounty of Chester, did, within the said county, to wit, at West Chester, charge, demand and take from the plff. other and greater fees than are expressed and limited by the act of assembly in such cases made and provided, for service done and rendered by defendant as sheriff aforesaid, in relation to a suit in the court of common pleas for said county, in which the said F. A. Aechternacht was plaintiff, and Paul Murray was defendant, by which taking of unlawful fees the plaintiff was injured. The plff. further claims another penalty of $50; for that the deft. within six months aforesaid, as sheriff aforesaid, within the county aforesaid, to wit,at West Chester, did charge, de- mand and take from the plff., other and greater fees than are expressed and limited by the act of assembly of this common- wealth in such cases made and provided, for services done and rendered by defendant, as sheriff aforesaid, in and about a suit, in the said court of common pleas, in which the said F. A. Aechternacht was plaintiff and Joanna Mickly; defend- ant, by which taking of unlawful fees aforesaid, the plaintiff was injured. Demand, $100. Adjourned to May 6th, 10 a.M. Parties appear. W. W. (sw.) plff. Adjd. to the 11th, 10 a.m. Plaintiff appears. Judgment, publicly, for plaintiff, for one hundred dollars. May 13th, defendant appeals. I am held in $50 as bail absolute in this case, conditioned for the payment of all costs accrued, or that may be legally recovered against the appellant, Signed, C. Wecxerzy, New Lond. Towns’p. VII. Crviu surr. September 19th 1894, summons issued- J. Walker, c. Returnable September 24th, 3 to 4p. mu. Served, on oath, on the defendant, by producing to him the original summons, and informing him of the contents thereof. PIff. claims for work and labor, and services rendered in selling a tract of land for defendant. Demand $35. Two subpoenas for plaintiff. Parties appear, and agree to leave all matters in variance between them to H. C.,B.S.,and J. W., to meet at 7 o’clock, in the evening of October 4th, at the office of J. R., Esq., No. 188, N. Fourth Street. September 26th, delivered the rule to the plaintiff ; and served notices on the arbitrators. Two subpeenas for plaintiff. October 17th, received the report of the arbitrators. Notified the parties to appear. October 19th, 12 m., plaintiff appears. Judgment according to the award, for twenty-two dollars and eighty-seven cents. Money paid into office. Received satisfaction. Signed, Joun Top, Agent for Plaintiff. 354 1 Stoxes Dickson vs. Sixty Maruack. costs, Justice. Entering action » 5 wt 85 Summons... «we 25 Returnandc.oath . . © B Continuance. . se + 20 Subp. pif. . . » 0 2 B Subp. deft, 6 names. « « 6 Six oaths . . . . 60 Continuance . . . . . 20 Continuance . 5 . 20 Trialand judgment . . , 60 Ex’n, ret. andsatisn . . ) , 60 Constable. Servingsummons. . .« «+ 25 Mileage, 3 m. circular . . «+ 80 Serving subpoena eo « « 50 Mileage, 2m.circular . * . 20 Serving execution . » « &0 Mileage,2m.ciroular. . ,. 20 $5.90 Henry Kiker vs. JaBEZ RaMSHABT. CcOsTS. Justice. Entering action. o 2 25 Summons. . «Ow 88 Return and o, oath é re 2) Rule to refer . & . « Jb Rule of reference. . « + 25 Notice to referees. . + 15 Notice to plaintiff. .« « + 25 Notice todefendant . . . 25 Entering report and judgment . 380 Execution . « «© + « 80 Return . 3 . . . . 15 Satisfaction. . + +» . 15 Constable. jerving summons. . eo + 25 Mileage, 1 m. circular . e » 10 Serving notice on piff, . .» » 50 Mileage, 3 m, circular , . + 380 Serving notice on deft. « . 50 Mileage, 1 m. circular. e 10 Serving notice on 3 referees . 1.50 Mileage,8 m.circular. . , 80 Serving execution . » . 60 Mileage,1m.ciroular. . , 10 Apam Buppry Vs. Duke ELDERBERRY. cosTs. Justice. Entering complaint « 25 Issuing precept . . eo 6 26 Hearing and determining . , 60 Recording proceedings. . , 650 Writ of restitution . * . 60 Constable. Serving precept . . - . 60 Mileage, 2m.oiroular. . . 20 Executing writ of poss'n 2.00 Mileage,2m.ciroular . . , 20 $4.90 DOCKET-ENTRIES AND FEES. VIII. Crvin svir, August 17th, 1894, summons issued, D. Rittenhouse, c. Returnable August 23d, 8 to9 a. u. Served, on oath, personally, on the deft., by producing to him the original summons, and informing him of the contents thereof. Parties appear. Debt, work and labor done, and materials furnished, $45.05. Deft. claims a set-off for money paid and laid out to the use of plff., $44. Adjourned to the 27th, 8 a. mu. Subpoena for plff. Subpoena for five witnesses for deft. Parties appear. J. W. (sw.) deft. D. K. (sw.) deft. D. R. K. a deft. J. M, (aff.) deft. L. K. (sw.) plffi R. H. (aff.) plff. Adjd. to the 30th, 8 a.m. Parties appear. Adjourned to 12m. Parties appear. Judgment, publicly, for the plaintiff for forty dollars. Execution issued Sept. 22d. Returnable Oct. 12th. Money paid into office. Received satisfaction. G. Davis, Agent for Plaintiff, IX. Crvin surr. September 10th 1894, summons issued, J.Walker,c. Returnable September 16th, 10 to 11 a. u. Served, by leaving a copy at the dwelling-house of defendant, in the presence of one of his family, on oath. Parties appear. Debt, work and labor done, 33 days’ wages, $30 a month, $38.25, credit, cash $11. Demand $27.25, referred to J. F., T. H. and M. R., to meet September 19th, 7 a. u., at Hollahan’s tavern. Chestnut St., No. 201. Notified the arbitrators. December 13th, received the report of the arbitrators. Notified the parties December 13th, to appear December 16th, 10 a. m., to show cause why judgment should not be entered according to the award, &c. Parties appear. Judgment, according to the award of the arbitrators, for the plaintiff, for seventeen dollars. Execution issued, December 28th. Returnable January 18th. Money paid into office. Received satisfaction. Signed, Hewry Kiger. X. Lanpiopp AND TENANT’s CASE, under the Act of 3d April 1830. July 14th, 1894, complainant appears and makes oath that in August 1879, he demised to defendant a certain tenement, No. 3 Lafayette Court, in the city of Philadelphia,for a term of years, reserving rent; the rent whereof is in arrear and unpaid ; that there are not sufficient goods and chattels on the premises to pay or satisfy the said rent, except such as are by law exempted from Jevy and sale, and that the said lessee has, after being duly notified, according to law, neglected or refused to rede- liver up possession of the said premises. Same day, summons issued, returnable July 18th, 5 to 6 p.m. G. W. constable. Served on oath. July 18th, parties appear, and, it appearing that said complaint isin all particulars just and true, judg- ment is hereby entered against the said Duke Elderberry, the lessee, that the premises aforesaid shall be delivered up to the lessor, the said Adam Buddey, and the rent in arrear is ascertained to be $56.44, Writ of possession issued Julv 24th. Returnable August 3d. July 28th, constable returns “possession of the premises given to the plaintiff this day ; .| costs paid into office.” July 28th. G. Wauzacz, Constable. DOCKET-ENTRIES AND FEBS. Parry PartRIDGE vs. Tuavy TELLTALE, cosTs. Justice. Enteringaction . . . + 25 Summons . eo. wt 8 Ret. andc,oath . . + 25 Oneoath . « . 2 + 10 Continuance. . « +» + 20 Subpoena, three witnesses . . 45 Trial and judgment . - +» 50 Execution . .« «© « « 30 Return. 2. ew ele U5 Satisfaction . . soe . 16 Noticeofrule. . .« .« . 25 Continuance . . . . 20 Subpoena, two witnesses. , 35 Continuance . . » . 20 Twooaths . . . * , 20 Sontinuance . ee er So: Execution . . « + | 39 Return. 2 6 ee 15 Constable, Servingsummons. . . + 25 Mileage,6m.circular. . «+ 50 Serving subp.3 witnesses . 1.50 Mileage,7m. circular. . . 70 Serving execution . . + 50 Mileage, 6 m. circular . - « 50 Serving al. execution . » » 50 Mileage, 6m: circular . * 50 $9.40 JONATHAN WINEBIBBER vs. Tonzy SoBERSIDEs. costs. Justice. Entering action 25 Summons . 25 Return ande. oath . 25 Continuance, . «4 + 20 One cath . » 10 Trialand judgment + + : 50 Bail . . . . oe “Osthofbal » > SS 210 Execution . . . = . 80 Return . . . . . . 1 Constable. Serving summons ee +e 25 Mileage, 2m. circular . » + 20 Serving execution . « . 650 Mileage,2m.circular. . . 20 JamMeES GRASPALL, to the use of Joe Jones, vs. THEODORE JEMINGSON. cOsTS. Tustice, Entering action . 2. + 25 jummons ==. . oe ee 2 Return and oath of const. . +» 25 Continuance... . » «+ «© 20 Disontinuance . . + « 15 Constable. Serving summons . ee B Mileage, 2m. circolar . * . 20 855 XI, Crvit surr. September 6th, 1894, summons issued. J. Walker, c. Returnable September 12th, 9 to 10 a. m. Served on the defendant, on oath, by producing to him the original summons, and informing him of the contents thereof. Parties epee Debt, goods sold and delivered. Demand, $4.79. I. D. (sw.) plff. Adjourned to the 16th, 9 a.m. Sub- poena for deft., for three witnesses. Plaintiff appears. Judg- ment, publicly, for the plaintiff for four dollars and seventy- nine cents: Same day, execution issued. Returnable October 5th. Execution stayed by a rule on the plaintiff to show cause why the judgment shall not be opened, in consequence of an error in the subpoena as to the hour of meeting. Ad- journed to the 26th, 9 a.m. Notified the plaintiff. Parties appear. September 26th, adjourned to October 6th, 9 a. m. Subp. for two w. for defendant. Parties appear. Adj’d to the 10th, 9 a. m. October 8th, issued two attachments for F. D. and I. H., defaulting witnesses. Parties appear. J. D. (aff.) and I. H. (sw.) for plff. Adjd. to 3 p. uw. Plaintiff appears. Rule discharged, and alias execution issued, Octo- ber 10th. Returnable October 30th. October 31st, money paid into office. Received satisfaction. Signed, No. Noste, Att’y for Plaintiff. XII. On a Promissory note. June 25th, 1893, summons issued. G. Wallace, c. Returnable July Ist, 10 to 11 a. m. Served on deft., on oath, by producing to him the original summons, and informing him of the contents thereof. Parties appear. Debt, as indorser of a promissory note made by S. Brady, dated March 16th, 1893, at 90 days, for $40. Demand $40. Adjourned. Parties appear. Adj’d to 16th, 4 Pp. m. Parties appear. F. T. (sw.) plff. Judgment, publicly, for plff. for forty dollars. August 6th, I become absolute bail in $85 for stay of exe- cution. Bail justified on oath. Signed, Gero. Laws, No. 118 Lawrence St. August 21st, 1893. For a valuable consideration, I transfer to F. Toms, all the right, &c., of the plaintiff to this judg- ment, &c. : Signed, Jos Jones, Att'y for the plaintiff. Execution issued January 25th, 1894, returnable Febru- ary 15. Interest, $1.20. Ret’d “no goods.” XIII. Crvin suit. May 7th, 1894, sums. issued. D. R., const. Ret. May 13th, 10 to 11 a.m. Served, on oath, on deft., by producing to him the original summons, and inform- ing him of the contents thereof. Parties appear May 13th. Debt, goods sold and delivered, $39.31. Interest $7. Demand, $46.31. Adj’d tothe 15th, 94.m. Parties appear. Deft. produces an order under seal of the court of common pleas of Phita. county, dated March 13th, 1880, stating that the deft. having exhibited to the court the consent in writing of a majority in number and value of his creditors, the said court order that he be released from all suits, &c., for any debt con- tracted, or cause of action created previously, and that he be discharged for seven years thereafter. Whereupon, the plff. withdrew his suit, and paid the costs. 356 ForM OF A SUMMONS FOR A PENALTY FOR HAVING ISSUED A SMALL NOTE IN THE NATURE, &o., OF A BANK-NOTE. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Eighth Ward, or to the next constable of the said city most convenient to the defendant, greeting : You are hereby commanded to summon Job Ox, president of the X. Y. and Z. Savings Institution, to be and appear on the first day of May 1894, between the hours of eight and nine o'clock in the forenoon, before J. B., one of our magistrates in and for the said city, to answer John Leo, who sues as well for himself as for the guardians of the poor. of the city of Philadelphia, for a penalty of five dollars for a violation of an act of assembly, passed April 12th, 1828, concerning small notes. Witness our said magistrate, at Philadelphia, who hath hereunto subscribed his name and affixed his seal the 26th day of April, in the year of our Lord 1894. : i Nagintcann's office, No. J. B., Magistrate. [szaz.] Indorsed, “served on the defendant, April 27th, 1894, by producing to him the original summons, and informing him of the contents thereof. “ Gzorce Wauuace, Constable, May Ist.” DOCKET-ENTRIES AND FEES. Joun Leo, who sues as. well for himself, as the guardians of the poor of the city of Phila- delphia, vs. Jos Ox, president of the X. Y. and Z. savings XIV. For a PENALTY FOR ISSUING A SMALL NOTE. April 26th, 1894, summons issued. G. Wallace, c. Returnable May 1st, 8 to9 s.m. Served, on oath, on the deft., by producing to him the original summons, and informing him of the con- tents thereof. Parties appear. Subpena for two witnesses for plff. Plff. complains that the deft. has violated the pro- visions of the lst and 2d sections of an act of assembly passed April 12th, 1828, entitled ‘an act concerning small notes and institution. the payment of money,” by having issued, or caused to be issued, a note or ticket, purporting to be a note or ticket in costs, the nature, character and appearance of a bank-note, for a Tuatice. as | less sum than $5, to wit, for 50 cents, whereby he has incurred Entering selon - +: 1 35]a penalty of five dollars, which plff. claims. Plff., by his Return of sumone sndosth - 21 counsel, H. H., Esq., asks that this suit and two other suits, Ad'ng2oaths =. . . . 20] between the same parties, now pending before the same alder- Continuance of sult . . ~. 20 ss * : Trial and judgment . +. | 60| man, for a similar offence, may be consolidated, which request Execution . + + | + £21) the alderman declines to comply with, as being against the Return on certiorari letter and spirit of the act of assembly. T. D. (sw.) plff. Constable. S. P. (aff.) Adj’d to the 4th, 84.m. Parties appear. he Serving cummors var? =: | 4p | alderman publicly declares that the deft. is convicted, and Rerving 2eubp ty ooy + . 1.00 | gives judgment for the plff. for five dollars. Same day, execu- Serving exeoution 3 50 tion issued ; returnable May 24th. May 26th, received a cer- Amos Painter vs. Aaron PENNYFINDER. tiorari from the court of common pleas. Same day, superseded the execution and made a return to the certiorari. XV. Civin suit. Sci. fa. issued 7th October 1893. D. Rittenhouse, c. Returnable the 14th, at 9 to 10 o'clock, a. m., requiring Aaron Pennyfinder, the landlord, to appear and show cause why the just account of his tenant, Amos Painter, costs. should not be set off against his claim for rent. D. R., c. (sw.) pave tte, s served by leaving a copy at the dwelling-house of the deft., in fof...» . . . as | the presence of one of his family. And now, I4th, parties ee’: 6: + 38 | appear, and plaintiff claims to set off his just account of $50 eg near 2x 8 for goods sold and delivered to defendant, against his demand ae , a es Bs alll > root set-off allowed and rent a onstabla, judged ; balance due $37.50. Defendant agrees to accept the Hizags omesicusr’. | 6 anal adjudged to be due, which is paid a office. Received the sum of $37.50, in full of rent due to the first inst. Signed, AaRON PENNYFINDER. DOCKET-ENTRIES AND FEES. 357 JacoB FalrHFUL vs. Peter SIMPLE. costs. Justice. ge Rotering action . eo. 25 Summons . . . 2 8S Returnandc.oath . . + 25 Continuance. . . . + 20 Twoowbs . . . .« + 2 Two continuances a Pe CRO QOneoath . . . « + 10 Continuance. . « « + 20 Trialandjudgment . . - 50 Bail . . . . . + 25 Travscript . se » « 50 Notice of rule ee ee Continuance . 20 Appeal, &. Soe ar gL OO Transcript for p aintiff » . 650 Bxecution . ©. + + « 80 Return . . . . , fatisfaction . . . Bo OB Constable. Summons served. . « + 25 Mileage,2m.circular. . . 20 Serving execution 7 ~ « 50 Mileage, 2m. circular . a 4 20) $6.70 Rusu Runny vs. Kite KinLinesworta. costs. Justice. ss Enteringaction . «wt 28 Summons . . . , + 2 Returnandoath . . . + 23 Rule torefer. . . 15 Ruleof reference. . . + 29 Notice to referees. . . + 75 Notice to parties . ! Constable. Executing warrant oe Mileage, 2m. circular . CoMMONWEALTH vs. TimotHy BanMan. Mickel Flake, 40 Walnut st., ) each held in $100 that deft. Geo. Jenny, 2d and Vine sts., J appear at the next court of quarter sessions, &c. N. Gorham, Lombard st., held in $50 to prosecute at the next quarter sessions, &c. Returned to the December sessions. VIII. Jan. 12th; 1894. Warrant issued, G. Wallace, c., on the oath of William Timid, charging the deft. with having assaulted and threatened deponent, so that he is afraid defend- ant will do him harm in body or estate. Jan. 13th, deft. brought up. W. T. (sw.) Bail required, $100. Timothy Banman, Upper Paxton township, )} each held in Joel Standfast, Lower Paxton township, $100 that the deft. shall appear, &c., at the next court of quarter sessions for Dauphin county, &c., and in the mean time keep the Wm. Timid, Harrisburg, held in $50 to téstify, &c, COSTS. Justice. Information, &e.. . © 50 Enteringaction . .« © 25 Warrant . © ee 6 50 One oath . 1. 6 10 Recog. of deft. 3 . . 50 of complainant . . 50 peace, &c. Constable. Executing warrant . . 1.00 Mileage, 8 m. ciroular . 80 $4.15 Returned to March sessions.! 1 A committing magistrate in this state has no authority to bind a person to keep the peace, or for his good behavior, longer than until the next term of the court; and the case must then be heard before the judges of the quarter sessions, who have the right either to dismiss the complaint, or order the accused to find bail to keep the peace and for his good behavior for such period as they in their discretion shall require. It is the jus- tice’s duty to make a return of such a case to the court, unless previously settled by the parties. 2 Pars. 458. Bac. Use ll. Contra, Noy 103. [ 365 J Dogs, I. Proceedings in reference to mad dogs. IV. Judicial decisions, II. Liabilities of owners of dogs. ~ V. Order to destroy a dog. III. When dogs the subject of larceny. I. Act 1 Aprin 1834. Purd. 691. Seor. 1. If any inhabitant of this commonwealth shall make complaint, under oath, to any justice of the peace within the county in which he resides, that any dog owned by acitizen of said county is mad, or has been bitten by, or been fighting with a dog that is mad, it shall be the duty of the said justice to give notice to the owner to appear forthwith, for the hearing of the said complaint, upon which hearing, if the justice shall be satisfied that the said dog is mad, or that he has been bitten by or been fighting with a mad dog, he shall be authorized to make an order that the said dog be killed; and if the owner of said dog shall refuse or neglect to put him to death immediately, or employ some one to kill him, he shall pay all legal costs accruing in consequence of his refusal or neglect; and in such case it shall be the duty of the justice to issue an order to any constable of the county who may be most convenient, directing him forthwith to put the said dog to death, and who shall execute the same under the penalty of five dollars; and if no constable can be had conveniently to execute the said order, then he may direct the order to any other inhabitant of the county whom he may designate, whose duty it shall be, under the like penalty of five dollars, to execute the said order. II. Act 14 Aprin 1851. Purd. 691. Secr. 7. It shall be lawful for any person or persons to shoot or kill any dog or dogs found or known to be chasing or worrying sheep, or accustomed so to do, within this commonwealth, without liability on the part of such person or persons to pay any damages therefor. ; Szct. 8. The owner or owners of any dog or dogs shall be liable for all damages done or caused to be done by any and every such dog or dogs, in an action of tres- pass vi et armis, in the name of the person or persons injured, to be sued for and recovered before any court or justice of the peace having jurisdiction of the amount so claimed. III WHEN DOGS THE SUBJECT OF LARCENY. The apts of 6th April 1854, and 18th May 1878, provide for the registry of dogs. And the act 25th May 1893 provides that all dogs shall be deemed personal pro- perty, and the subject of larceny.’ IV. An action of trespass will lie before a justice of the peace, against the owner of a dog, for injury done to the plaintiff, in worrying and killing his sheep.? And the defendant is liable, not only for the sheep killed by the dog, but for such injuries as may befall the flock from fright.‘ Under the act of 1851, several owners of dogs are liable, in a joint action, for damage done in worrying sheep; and no seéenter need be shown as to the habits or disposition of the dogs.* ‘To justify the killing of the dog, it is not necessary that he should have been seen tearing the sheep with his teeth; it is sufficient that he ‘has been observed to follow them with a hostile intent.6 The act of 1851 does not give a magistrate jurisdiction of a case of injury to a child, resulting from the bite of a dog; it has exclusive reference to dogs accustomed to worry sheep." 3) 1 Purd. 690. 5 63 Ibid. 341. See 17 Wend. 562. 2 Thid. 692. 6 1 Gr. 82. 37 Penn. St. 254. 19 Ibid. 359. 7 2 Phila. 44. #19 Ibid. 359. 366 DRAINAGE—DRUNKENNESS. V. ORDER TO DESTROY A DOG. COUNTY OF BRADFORD, ss. The Commonwealth of Pennsylvania, To the Constable of Y—— township, in the said county, greeting: Wuerzas, complaint has been made, under oath, before me, one of the justices of the peace of the said county, that the dog [distinguishing him] owned by A. B. hath been seen fighting with [or hath been bitten by] a mad dog [as the case may be]; of which fact due notice hath already been given to the said A. B., requiring him to put the said dog to death. And whereas the said A. B. hath refused or neglected to comply with the said order, as by law directed: Therefore, you are hereby commanded to put the said dog to death, without delay ; hereof fail not, under the penalty of five dollars. Witness my hand and seal, the 5th day of May 1885. J. R., Justice of the Peace. [sEau.] Drainage. Act 30 June 1885. Purd. 1433. Secr. 1. The boards of health, in cities of the first class, shall be and they are hereby authorized and directed to adopt and promulgate suitable rules and regula- tions, for the construction of house drainage and cesspools, and to provide for the registration of master plumbers and persons engaged in the plumbing business in said cities: Provided, That no cesspools shall be permitted to drain into a sewer; And provided further, That nothing in this act shall be construed to apply to cesspools in existence at the present time, or their connections with, or drainage into, any sewer. Sgor. 2. They shall also establish a system of inspection and supervision over all house drainage and cesspools, and ventilation of the same, and appoint such inspec- tors as in their judgment may be necessary, at such compensation as may be approved by the councils of said cities. Szcr. 3. Any person who shall refuse or neglect to comply with the require- ments of said rules and regulations when promulgated, shall be guilty of a misde- meanor, and, on conviction, be sentenced to pay a fine of not more than one hundred dollars ($100), or undergo an imprisonment not exceeding one year, or both, in the discretion of the court. Drunkenness. I. Penalty for intoxication; and form of con- III. Penalty for public drunkenness. viction. IV. Judicial decisions. II. Execution to levy forfeiture. I. Acr 22 Aprin 1794. ~ Purd. 491. Szor. 3. If any one shall intoxicate him or herself, by the excessive drinking of spirituous, vinous or other strong liquors, and shall be convicted thereof, he or she shall forfeit and pay the sum of sixty-seven cents for every such offence; or if such person shall refuse or neglect to satisfy the said forfeiture, or goods and chattels cannot be found, whereof to levy the same by distress, he or she shall be committed to the house of correction [or the county prison] of the proper county, not exceeding twenty-four hours. Szor. 4. Gives jurisdiction to justices of the peace to convict offenders against the preceding section, either upon their own view, or by process issued to bring the body of the accused before them,! whereupon they shall proceed in a summary way to inquire into the truth of the accusation; and upon the testimony of witnesses, or the confession of the party, shall convict the offender, and pronounce the forfeiture aforesaid: every such conviction may be in the following terms, viz. : 1 The justice may proceed by warrant or summons. 61 Penn. St. 272. DRUNKENNESS. 867 BE IT REMEMBERED, that on the [first] day of [May], in the year of our Lord [1880], A. B., of York county, laborer (or otherwise, as his rank, occupation or calling may be), is convicted before me, being one of the justices of the peace in and for the county of York, of being intoxicated by the excessive drinking of spirituous, vinous and other strong liquors, and I do adjudge him to forfeit for the same the sum of sixty-seven cents, Given under my hand and seal, the day and year aforesaid. J.R., Justice of the Peace. [szau.] Provided always, That every such prosecution shall be commenced within seventy- two hours after the offence shall be committed. Seor. 12. One moiety of the forfeiture to be paid to the overseers of the poor, &c., and the other moiety to the informer: and the inhabitants of any place may, notwithstanding, be admitted as witnesses. II. EXEcvurion TO LEVY FORFEITURE. COUNTY OF YORK, ss. The Commonwealth of Pennsylvania, To any Constable of the said county, and to the keeper of the prison of the county aforesaid, greeting: Wuerzas, A. B. hath been this day duly convicted before J. R., Esquire, one of the justices of the peace in and for the said county, of being intoxicated by the excessive drinking of spirituous, vinous and other strong liquors; that is to say, on the —— day of ——, at ——, in the county aforesaid, contrary to the act of general assembly in that case made and provided, for which offence he hath forfeited the sum of sixty-seven cents, which fine he hath refused to pay. These are, therefore, to command you, the said con- stable, to levy the same by distress and sale of the goods and chattels of the said A. B.; but if sufficient goods and chattels cannot be found whereon to levy the same, together with costs, that then you take the said A. B., and deliver him to the keeper of the prison of the county of York, who is hereby commanded to receive and keep the said A. B. in safe custody for the space of twenty-four hours, or until he shall be legally discharged, there to be fed agreeable to law. And herein you are neither of you to fail. Witness our said justice, who hath hereunto set his hand and seal, the —— day of ——, a. p. 1880. J. R., Justice of the Peace. [szat.] III. Acr 31 Marcu 1856. Purd. 492. Szor. 29. Any person who shall be found intoxicated in any street, highway. public-house or public place, shall be fined, upon the view of, or upon proof made before, any mayor, alderman or justice of the peace, not exceeding five dollars,’ to be levied, with the proper costs, upon the goods and chattels of the defendant. IV. Informers under the summary proceedings authorized by the act of 22d April 1794, and other similar acts, are not liable for costs, if they fail in establishing their accusations.? The proceeding should be in the name of the commonwealth.’ Where a form of summary conviction is peremptorily prescribed, it must be exactly followed ; but if such a provision be merely directory, and the conviction contain everything required by the form given, it will not be vitiated by uaneces- sarily stating more than is required. The 4th section of the'act of 1794, which gives the form, declares that ‘every such conviction may be in the following terms,” and is, therefore, clearly directory. The judgment must ascertain not only the amount of fine inflicted, but also the alternative duration of imprisonment.® So odious is drunkenness in the eye of the law, that it has ever been held, that that artificial madness, which is produced and voluntarily contracted by drunken- ness and intoxication, and which, depriving men of their reason, puts them in a temporary phrensy, is an aggravation of the offence, rather than an excuse for any criminal misbehavior. And Sir Edward Coke says, a drunkard, who is voluntarius demon, or a voluntary madman, hath no privilege thereby ; but what hurt or ill soever he doth, his drunkenness doth aggravate it.7 And he shall be punished for 1The act 20 April 1858 2 22, provides that 41 Ash. 411. See 2 Pars. 265. the penalty shall not exceed two dollars; and 51 Clark 408. 1 Chest. Co. R. 346. The that it shall be paid over to the treasurer of the commitment should be to the county prison. 15 school district, where the conviction is had. Phila, 418. Purd. 492, note &. 64 Bl. Com. 25. 2 Dall. 88. 1 Bro. app’x 31 Ash. 413. 17. 2 Brewst. 546. 861 Penn. St. 272. 10 Phila. 479. 71 Inst. 247. 368 DRUNKENNESS. it, as much as if he had been sober.! The voluntary intoxication of one who, with- out provocation, commits a homicide, although amounting to phrensy, does not exempt him from the same construction of his conduct, and the same legal infer- ences, as affecting the grade of crime, which are applicable to a person perfectly sober.’ In general, a felonious homicide, committed by one in a state of intoxication, is deemed murder in the second degree. Where the mind, from intoxication, or any other cause, is deprived of its power to form a design with deliberation and pre- meditation, the offence is stripped of the malignant feature required by the statute to place it in the list of capital crimes.’ Evidence of intoxication is always admis- sible. Where the crime was committed after provocation, it may be considered, in determining whether it was done in the heat of passion ; and in other cases, whether threatening words were used by the culprit with deliberate purpose, or otherwise ; and generally to explain his conduct.‘ The true criterion as to the capability of the prisoner to commit murder in the first degree, is, not whether he was drunk or sober, but whether he had the power, at any time, deliberately to form and plan in his mind the design and intention of killing his victim. If from intoxication, or other cause the mind is deprived of the power to plan, deliberate upon, and purpose the death of another, if such act be the result of impulse, not of deliberation, then the perpetrator is not guilty of murder in the first degree.> In a case of murder, the prisoner’s intoxication is not such an excuse as will allow a less than ordinarily adequate provocation to palliate the offence, unless it were so great as to render him unable to form a wilful, deliberate and premeditated design to kill, or incapable of judging of his acts and their legiti- mate consequences.® Insanity, of which the remote cause is habitual drunkenness, is an excuse for an act done by the party while so insane, but not at the time under the influence of liquor. The crime (to be punishable) must take place during a fit of intoxication, and be the immediate result of it, and not a remote consequence, superinduced by the antecedent drunkenness of the party. In cases, therefore, of delirium tremens or mania a potu, the insanity excuses the act, if the party be not intoxicated when it is committed.” An agreement executed by a person while in a state of intoxication, and when he was incapable of transacting business, by reason thereof, will not be enforced against him or his heir.® A person addicted to intoxication, and being in a state of inebriety, though not by the procurement of the defendant, was prevailed on by him to execute a bond for the conveyance of certain lands. Such contract may be avoided, for this cause, by the legal representatives of the obligor.® The contracts of an habitual drunkard, made after inquisition found, and before its confirmation, are void. The trustee of ‘an habitual drunkard is not liable to an action upon a contract made by the druukard before inquisition found, although he may have effects in his hands sufficient for the payment of the claim." To avoid a contract on the ground of drunkenness, it must be shown affirmatively to have been so excessive as to render the party incapable of consent, or for the time, incapacitate him from the exercise of his judgment.” Neither habitual intoxication nor the actual stimulus of intoxicating liquors, at the time of execut- ing a will, incapacitates a testator, unless the excitement be such as to disorder his faculties and prevent his judgment.* 1 1 Hawk. P. C. 3. 82 Harr. & Johns. 421. 1 Bouy. Inst. 227. 218 N.Y. 9. See 69 Penn. St. 204. 3 Brewst. 292. 4 Ibid. 119. 3 Lewis’ Cr. L. 405. 1 Am. L. J. 149. 4 Or. 22 Pitts. L. J. 189. C. C. 605. See 98 Penn. St. 335. 9 6 W. 139. 418 N.Y. 9. 101 Hon. & Munf. 70. 1 Wash. 164. 3 Cow. 5 3 Phila. 235, 2 Brewst. 546. 445. 1 Pars. 31. 13 Ala. 752. 2 Greenl. Evid. 6 44 Penn. St. 55. 2 Brewst. 546. @ 874. : 7 5 Mason 28. Lewis’ Cr. L. 602. 1Am.L.J. 1 4 W. 459. ks 147, 1 Am. L. Reg. 38. Whart. Cr. L. 332. 2 42 24 Texas 174 Or. 0. 0. 158. 18 N.Y. 9. 138 27 N.Y. 9. L 369 ] Duelling. I. Constitutional provisions. III. Judicial decisions. UI. Provisions of the Penal Code. I. ANY person who shall fight a duel, or send a challenge for that purpose, or be aider or abettor in fighting a duel, shall be deprived of the right of holding any office of honor or profit in this state, and shall be punished otherwise in such manner as is or may be prescribed by law. II. Act 31 Marcu 1860. Purd. 492. Sect. 25. If any person within this commonwealth shall challenge another by word or writing” to fight at sword, rapier, pistol or other deadly weapon, or if any person so challenged shall accept the said challenge ; in either case such person so giving or sending or accepting any such challenge, shall be guilty of a misdemeanor, and being convicted thereof, shall be sentenced to pay a fine not exceeding five hun- dred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. Scr. 26. If any person shall willingly and knowingly carry and deliver any written challenge, or shall verbally deliver any message purporting to be a chal- lenge, or shall consent to be a second in any such intended duel, every such person so offending shall be guilty of a misdemeanor, and being convicted thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment by separate or solitary confinement at labor, not exceeding two years. Szcr. 27. If any person shall have knowledge of any challenge to fight with any deadly weapon, given or received, or in any manner be witness to the fact of such challenge, duel or fighting, not being a second thereat or a party thereto, and shall conceal the same and do not inform thereof, he or she shall be guilty of a misde- meanor, and being convicted thereof, shall be sentenced to pay a fine not exceeding fifty dollars, and to undergo an imprisonment not exceeding twelve calendar months. Scr. 28. If any person shall, in any newspaper or handbill, written or printed, or otherwise, post, publish or proclaim any other person or persons as a coward or cowards, or use any other opprobrious and abusive language towards such person for not accepting a challenge, or fighting a duel, such person or persons so offending, shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding one year. III. The offence of duelling consists in the invitation to fight, and the misde- meanor is complete by the delivery of the challenge.® If a jury believe a letter inviting to a meeting, though on its face it purports to be a challenge, be merely an empty boast, and in ridicule to the party to whom it is addressed, they may acquit ; though it is otherwise, if they deem it in earnest.’ It is a misdemeanor at common law, to challenge another to fight with fists,° or to challenge another to fight under any circumstances, whether constituting the statu- tory offence or otherwise.® Upon the trial of an indictment for carrying a challenge to fight a duel, the scienter must be proved." ’ The act 21 March 1860 2 23,° provides that it shall be sufficient to frame an indict- ment for duelling generally against either of the principals or against either of the seconds. 1 Const. art. XII. 23. See 10 Bush 725. 28 52 Law Rep. 148. Gratt. 130. 61 Hawks 487. 2 Brevard 243. Whart. Cr. 2 See 2 Wheeler’s Cr. C. 245, L. 3 2674. 31 Const. Rep. 107. 73 Cr. C. C. 178. 46 J. J. Marsh.122, 12 Ala. 276. 2N.& 8 Purd. 493, Mc(. 181. 24 [ 370 ] Cabes-Dropping. BAVES-DROPPERS, or such as listen under walls or windows, or the eaves of. a house, to hearken after discourse and thereupon to frame slanderous and mischievous tales, are a common nuisance, and indictable at the sessions, and punishable by fine and finding sureties for their good behavior." 3 Eaves-dropping is an indictable offence in Pennsylvania; though if it should appear that the alleged offence was committed by the husband of the prosecutrix, who was the objeot of it, or by his authority, it would seem that the prosecution does not lie. There is no law that can prevent a husband constituting a watch upon his wife. Eaves-dropping consists in privily listening or hearkening of the dis- course, not in looking or peeping, which is not indictable; but if the defendant listen as well as look, he may be convicted.2 In Tennessee, a prosecution for eaves- dropping can be maintained at common law , Election Laws. I. Election of inspectors of the general elec- IX. Closing of polls; counting vote; returns, tion. X. Ballot-boxes. II. Election districts. XI. Duties of return-judges. III. Registry of electors. XII. Township elections, IV. Of the general election. XIII. Primary elections. V. Mode of conducting elections. XIV. Contested elections. VI. Of the qualified electors. XV. Wagers on elections. VII. Prevention of frauds. XVI. Penalties for misconduct. VIII. Duties of peace officers. XVII. Miscellaneous provisions. XVIII. Nominations to office; ballots; booths. THE purity of our elections is vitally important, not only to the welfare of our country, but to the freedom of the people and the perpetuity of the Union of the States. It is, therefore, of the utmost moment that every citizen should understand the laws which regulate our elections, so that, being well informed, he may courageously assert his own rights, and carefully avoid infringing on the rights of others. There are many duties, by these laws, imposed upon justices of the peace and other peace officers; they are, therefore, especially called upon to understand them correctly and thoroughly, to the end that they may perform their duties intelligently and uprightly. The following pages embrace the general election laws in force throughout the commonwealth. There are various laws applicable only to particular localities which have, for the most part, been referred to in the notes, but the insertion of them at large would have inconveniently extended this chapter; the student is therefore referred to the pages of Purdon’s Digest, and of the Pamphlet Laws, for a more particular notice of such local statutes. I. ELECTION OF INSPECTORS OF THE GENERAL ELECTION. It shall be the duty of the constable or constables of each township, ward and district, at least ten days before the day hereinafter appointed for the election of inspectors, to give public notice, by six or more printed or written advertisements affixed at as many of the most public places therein, of the time and place of hold- ing such election.*’ In case of the neglect, refusal, death or absence from the county, of the constable or constables of qny township, ward or district, the supervisors of the township or district, or the assessors of the ward, as the case may be, shall perform the duties hereinbefore required to be done by such constable or constables, under the like 14 Bl. Com. 168. Lewis’ Cr. L. 235. 3 2 Overt. 108. 24 Clark 56. 8 Haz. Pa. Reg. 305. Com, v. * Act 2 July 1839 2 1. Purd. 378, Richmond, Franklin Gazette, 17 June 1818. ELECTIONS. 371 penalty: Provided, That the said supervisors or assessors shal] not be required to give more than five days’ notice of the time and place for holding such election.) The qualified citizens of the several wards, districts and townships shall meet in every year, at the time and place of holding the election for constable of such ward, district or township, and then and there elect, as hereinafter provided, two inspectors and one judge of elections.” Each of such qualified citizens shall vote for one person as judge, and also for one person as inspector of elections, and the person having the greatest number of votes for judge shall be publicly declared to be elected judge, and the two persons having the greatest number of votes for inspectors, shall, in like manner, be declared to be elected inspectors of elections® The elections, as aforesaid, shall be opened at “ seven’ o’clock in the forenoon, by a public proclamation thereof, made by the officers appointed to hold the same, and to be kept open until seven o’clock * * * in the afternoon, when the polls shall be closed, the number of votes be forthwith ascertained, and the persons highest in vote, publicly declared to be elected.® Where any township has been, or shall be, divided in forming an election district, the qualified citizens of each part of such divided township, shall severally elect, in the manner and at the time and place aforesaid, two inspectors for each of said several election districts, and shall also elect one person to serve as judge of the elections in each district, to perform the duties enjoined by the 6th section of this act.® As soon as the election for inspectors and judges of election shall be finished, the inspectors and judges of such election shall make out duplicate returns, under their hands and seals, setting forth, in words at length, the number of votes given for the several persons voted for as inspectors and judge, and also for each township officer voted for at such election; one of which they shall, together with the tickets, list of taxables, list of voters, tally papers and the certificates of the oath or affirmation taken and subscribed by the inspectors, judges and clerks, carefully collect and deposit in one or more of the ballot boxes, which boxes, together with the remaining ones, shall be secured, delivered and kept as for similar boxes is directed in the 74th section of the act to which this is a supplement, until the next general election to be held thereafter ; and the other duplicate shall be delivered by the judge of such election, within five days thereafter, to the clerk of the court of quarter sessions of the proper county, to be filed in his office; and the said inspectors and judge shall also make out a certificate of election, for each person chosen as an inspector, judge or township officer, which certificate shall be delivered to the person so chosen, or left at his usual place of abode, by the constable of the proper ward, township, district or borough, within five days after such election.’ The general, special, city, incorporated district, and township elections, and all elections for electors of president and vice-president of the United States, shall be held and conducted by the inspectors and judges elected as aforesaid, and by clerks appointed as is hereinafter provided.® Every judge, inspector and clerk as aforesaid, shall receive the sum of one dollar and fifty cents, except the city and county of Philadelphia, where they shall receive “five” dollars each, for every day employed in the duties required of him by law, in conducting the general, special or township elections, to be paid by the treasurer of the proper county, on orders to be drawn upon him by the commissioners ; which allowance shall be in full for his services and expenses other than the mileage ? Act 2 July 1839 32. Pamph. 519 Pars. 525. Where a poll is kept open after the 2 Ibid. 2 3. Purd. 728, proper hour, and the number of votes polled ® Ibid. 3 4. 4 By act 30 January 1874 2 5, at all elections the polls shall be opened at seven o'clock A. M. and closed at seven o’clock p.m. Purd. 727. 5 Act 2 July 1839 2 5. It is a sufficient ground to set aside an election, that the polls Were closed at an earlier hour than prescribed by law. 2 Pars. 526. So also, if they were Opened at a much later hour than the time pre- Scribed by law. 68 Penn. St. 333. But it is no objection, if the polls are closed at the proper hour, that a number of voters were in attend- ance whose votes were thereby excluded. 2 afterwards can be clearly ascertained, if the whole of those votes could not change the result, the election will not for that cause be set aside ; but where the majority is small, and the result rendered doubtful, by uncertainty as to the number of votes polled after the legal hour, the election must be set aside, 3 Clark.11. And see Bright. Elect. Cas. 455. 1 Brewst. 162. 2 Ibid. 1. 29 Ill. 54. 8N. Y. 67. Bright. Elect. Cas. 451. 6 Act 2 July 1839 37. Purd. 728. 7 Act 13 June 1840 2 1. 8 Act 2 July 1839 3 14. Purd. 728. 372 ELECTIONS. hereinafter allowed, and in lieu of all kinds of refreshment which may have been cus- tomary to provide, and no such expense for refreshment shall be paid or allowed by the commissioners of any county. The act 6 June 1893,” provides that upon a tie in the election for judge, the majority inspector shall appoint a judge, and where there is also a tie between the two in- spectors, they shall determine by lot who shall be majority inspector, and the latter shall then appoint the judge. II. ELEcTION DISTRICTS. Townships, and wards of cities or boroughs, shall form or be divided into election districts of compact and contiguous territory, in such manner as the court of quarter sessions of the city or county in which the same are located may direct; but districts in cities of over one hundred thousand inhabitants shall be divided by the courts of quarter sessions, having jurisdiction therein, whenever, at the next preceding elec- tion, more than two hundred and fifty votes shall have been polled therein ; and other election districts, whenever the court of the proper county shall be of opinion, that the convenience of the electors and the public interests will be promoted thereby.’ : . The several courts of quarter sessions of this copymonwealth shall have authority, within their respective counties, to divide townships into two or more election dis- tricts, so as to suit the convenience of the inhabitants thereof.* Upon application by petition of twenty electors of the township to said court of quarter sessions, for the purpose of dividing any township into election districts, said court shall appoint three impartial men to inquire into the propriety of granting the prayer of the petition; and it shall be the duty of the commissioners so appointed, or any of them, to make a plot or draft of the proposed new election district or districts, if the same cannot be fully designated by natural lines or boundaries, all of which they or any two of them shall report to the next court of quarter sessions, together with their opinion of the same.® ‘ When a report has been made by said commissioners, it shall be confirmed nis: by said court, which confirmation shall become absolute, unless exceptions be filed to the same, not later than the third day of the next term of said court; and should exceptions be filed as aforesaid, they snall be disposed of, on evidence, as said court shall deem just: Provided, That if desired, a review may be had, if, in the opinion of the court, it may be necessary to secure a fair adjudication of the same; said review to be asked for before the report has been absolutely confirmed, however.§ Whenever said report shall have been confirmed by the court, said court shall, at the same time, decree or establish the place for holding the elections in the said new election district, and appoint the election board for holding the elections in said new election district, till an election board shall be elected for the same as pro- vided by law.’ s Upon application by petition of freeholders, as provided for in the second section of this act, for the purpose of annexing one election district or township to another, the court of quarter sessions shall appoint viewers or commissioners, as provided for in the second section of this act, whose duty it shall be to view the premises and make a draft of the townships or election districts proposed to be consolidated or annexed, and make their report at the next court of quarter sessions after their appointment ; and if the said commissioners, or a majority of them, shall report in favor of the annexation or consolidation of the two townships or election districts, the said court shall confirm the same nzs¢, and order a special election to be held in each of the townships or election districts, at a time to be fixed by said court, not 1 Act 2 July 1839 392. Purd. 728. In Phil- peals all prior legislation as to the mode of adelphia, the compensation of election officers is dividing wards, boroughs and townships into fixed at $5 per day, by act 18 April 1853 2.14. lection districts. 11 Phila. 645. Pamph. 824. In Alleghany county, at $2.50 ¢ Act 18 May 1876 31. Purd. 723. per day, by act 26 February 1872. Pamph. 5 Act 24 June 1885. Purd. 724. See 1 Kulp. 158, And see act 15 April 1869, as to North- 130. 1 Lack. L. Rec. 495. ampton county. Pamph. 982. § Act 18 May 1876 3 38. Purd. 724, 2 Purd. 729. TTbid. 2 4. ® Const. art. VIII. 3 11. This virtually re- ELECTIONS. 873 more than sixty days from the confirmation nis, to vote upon the question of annexation ; and if a majority of the qualified voters of each of said townships or election districts shall vote in favor of the annexation or consolidation of the said townships, the said court shall order and decree such consolidation or annexation of the said townships or election districts; and the place of holding elections of the townships or election districts so consolidated shall be at the usual place of holding elections in the more populons of the two townships so consolidated : Provided, That the court of common pleas shall have power to adjust the indebtedness of the said townships incurred prior to their consolidation, in such a manner that onl the property within the old territorial limits of each township shall be liable for such indebtedness: And provided further, That in any case where a majority of voters in each of any two townships have heretofore voted in favor of annexation or consolidation of such townships, such annexation shall be legal and valid, as if done under the provisions of’ this act.’ The compensation of said commissioners shall be the same as that now paid to road viewers, and to be paid in the same maaner.? In all cases of the division or creation of election districts by the court of quarter sessions of any county in this commonwealth, the said court shall order the costs and expenses thereof to be paid from the treasury of the proper county ; and on such order being made, the county commissioners shall draw their warrant for the payment of the same. In all cases in which any court of quarter sessions of this commonwealth shall de- clare any borough incorporated by said court a separate election district, the said court shall fix the place for holding the general elections therein, and the same shall con- tinue to be the place for holding such elections, unless and until the same shall be changed in the manner provided by existing laws.’ In cases where five responsible citizens of any election district shall appear before any law judge of aay county in this commonwealth, in chambers, there being no court sitting, and state on oath, that owing to fire or impossibility to obtain the room, or any other unavoidable cause, the election cannot be held in their district, at the place designated by the sheriff’s proclamation, the judge shall have power to designate some other convenient place, and shall at once notify the constable of the district, who shall notify the election board and the citizens of the district, as in a spring election, and he shall receive for the same the like fee as for notifying the voters of a spring election: Provided, That this change shall not be made within less than three days of the election, except in cases where the building in which the election was to be held is destroyed by fire: Provided further, That this act shall not apply to cities of the first class.° From and after the passage of this act it shall not be lawful for any voter in this commonwealth, except when in actual military service of this state, or the United States, at any election authorized by law to cast his ballot at any polling place outside the lawfully designated election district in which he is domiciled. It shall be the duty of the several courts of quarter sessions of the several counties of the commonwealth to designate the polling places within the election districts in the manner now provided by law. No public election shall be held in any room any part of which is used for the sale of liquors, if it be possible to obtain another room for that purpose in the vicinity, and it shall be the duty of the court of quarter sessions, or any law judge thereof, to inquire, upon the petition of five or more citizens resident in the election district, whether any such rooms are now designated as polling places, and in such cages to select other places for holding the elections.’ III. ReaistRy OF ELECTORS. For the purpose of making the original annual assessment and registration of voters in each of the election districts of this commonwealth, it shall be the duty of each of the assessors, who are required to perform any of the duties incident to the holding of elections and the registration of voters in the different election districts of this com- 1 Act 18 May 1876 3 5. Purd. 724. delphia, the power to change the places of hold- 2 Ibid. 2 6. , ing elections is conferred upon councils, by aot 3 Act 18 March 1875. Purd. 724. 21 April 1855. Purd. 726. 4 Act 17 April 1866. Purd 725. 6 Act 18 April 1893. Purd. 726. ® Act 18 June 1883. Purd. 726. In Phila- T Act 19 May 1887. Ibid. 727. 374 ELECTIONS. monwealth, to visit in person each and every dwelling house in his district on the first Monday in May and on the first Monday in December of each year, or a8 soon thereafter as may be possible and practicable, when all of said dwelling houses cannot be personally visited by him on the said first Monday of May and on the first Monday of December, and to make a list in a book prepared for that purpose by the county commissioners, of all the qualified electors that he shall find, upon careful and diligent inquiry, to be bond fide residents of his district, together with the date when such dwelling house was visited by the assessor, entering them in such book in the order in which such dwelling houses are visited; and the qualified electors in each dwelling house being grouped together, and if in a city or town, the names of the qualified electors shall be grouped together by streets, alleys or courts, and the persons so found to be legally qualified electors shall forthwith be assessed; the assessor shall, in all cases, personally ascertain by careful and diligent inquiry of the voter or of some known resident of the election district in which the voter claims the right to vote, upon what ground each person so assessed claims to be a legally qualified voter. The list thus prepared shall be designated and known as the “ Original registry list.”’ It shall be the duty of said assessor to enter in said “‘ Original registry list” the names of the male citizens twenty-one years of age and upwards, claiming to be qualified voters in the election district of which he is the assessor; and opposite each of said names state whether said citizen is or is not a housekeeper; and if he is, the number of his residence in cities or towns where the same are numbered, with the street, alley or court in which situated, and if in a city or town where there are no numbers, the name of the street, alley or court on which said house fronts; also the occupation of the person at the date of such assessment, and where he is not a house- keeper, the occupation, place of boarding and with whom at the date of his assess- ment; and if working for another, the name of the employer; and write opposite each of said names the word “ voter.’’ Where any person claims to vote by reason of naturalization, he shall exhibit his certificate theseof to the assessor, unless he has been for two consecutive years next preceding, a voter in said district ; and in all cases where the person has been natural- ized, the name shall be marked with the letter ‘‘N;’’ where the person has merely declared his intentions to become a citizen and designs to be naturalized before the next election, he shall exhibit the certificate of his declaration of intention and the name shall be marked ‘‘ D. I.;’’ and where the person shall be entitled by existing laws to be naturalized without making a declaration of his intentions to be naturalized, and intends to be naturalized at least one month before the next general election, the name of such person shall be marked “I. N.;’’ where the claim is to vote by reason of being of the age of twenty-one years and under twenty-two, as provided by law, the word ‘‘age’’ shall be entered, and if the person has moved into the election district to reside since the last general election, the lettter “ R.’’ shall be placed opposite the name. It shall be the duty of the said assessor to forthwith make duplicate copies of the said original list, with the observations and explanations required to be noted as afore- said, to be made out as soon as practicable. It shall be his duty, on or prior to the fourth Monday of May and on or prior to the second Monday of December in each year, to return one of said duplicate copies to the county commissioners for file in their office, and to place the other of said duplicate copies on the door of, or on the house where the election of the respective district is required to be held, and retain the original list in his possession for the inspection, free of charge, of any person resident in the said election district who shall desire to see the same; and it shall be the duty of the said assessor to assess, from time to time, on the personal application of any one claiming the right to vote, the name of such claimant and mark opposite the name ‘‘C. V.,’’ and immediately assess him, noting, as in all other cases, his occupa- tion, residence, the date of his assessment, whether a boarder or housekeeper, if a boarder with whom he boards and whether naturalized or designing to be, marking in all cases opposite the name the letter “N.,”’ “D. 1.” or “I. N.,” as the case may be; if the person claiming to be assessed be naturalized, he shall exhibit to the assessor his certificate of naturalization; and if he claim that he designs to be natu- ralized before the next ensuing election, he shall exhibit the certificate of his declara- at of intention, if such previous declaration is required by the laws of the United tates. ELECTIONS. 875 It shall be the duty of the said assessor to be present at the election house ot the said election district during the two secular days next preceding the day fixed by the third section of this act for returning the lists to the county commissioners, from ten ante-meridian to three post-meridian, and from six post-meridian to nine post-merid- ian, of each of said days, for the purpose of hearing and acting upon applications to be made under the provisions of this section, or relating to names upon said list or that are sought to be placed thereon or struck therefrom, and it shall be his duty to correct said original list by adding thereto, upon personal application, the names of persons entitled to vote, not already thereon, and by striking therefrom fictitious ‘ name or names of persons who may have died or removed from said district; and in all cases it shal! be the duty of the said assessor to enter in his dook, opposite the name of each voter, the name or names of the person or persons, together with the residence of the same, who shall furnish information as to the residence and qualifica- tions of each voter who has been assessed, or as to the persons whose names shall be stricken from said original list ; and the said original list shall be open for inspection by any qualified elector of the county or ward in which the election district is situated, as well as by the person claiming to be registered ; and the court ot common pleas of the proper county, or any law judge thereof at chambers, on the application of any qualified elector of the ward or county under oath, setting forth a breach of any of the duties imposed on said assessor by this act, which oath may be made at any time before the date of election, shall call the assessor and the complainant before it or him by citation or rule to show cause, and shall hear the paaties and dispose of the sub- ject in a summary manner, as to law and justice shall belong, and shall, if’ need be, order the assessor to correct the registry accordingly, and the said court or judge may enforce such order by attachment as in proceedings for contempt. After the assessments have been completed on the sixty-first day before the third Tuesday of February, and on the sixty-first day before the Tuesday next following the first Monday of November in each year, the assessor shall, on the following day, make a return to the county commissioners of the “‘ Original registry list’’ thus revised and completed and two exact copies thereof, and the county commissioners shall there- upon proceed to make out a complete list in alphabetical order of all persons so re- turned as resident taxables in said election district, and furnish the same, together with the necessary election blanks to the officers of the election in such election dis- trict, on or before seven o’clock on the morning of the election; and no man shall be permitted to vote at the election on that day whose name is not on said list, unless he shall make proof of his right to vote as hereinbefore required. It shall be the duty of the assessor in all voting districts or precincts in this com- monwealth, where temporary voting places are or may be established, to be present at his place of residence in said election district or precinct during the two secular days next preceding the day fixed by the third section of the act of May twenty-ninth, one thousand eight hundred and ninety-one, being a supplement to the act of January thirtieth, Anno Domini one thousand eight hundred and seventy-four, for returning the list to the county commissioners, from ten ante-meridian to three post-meridian, and from six post-meridian to nine post-meridian of each of said days, to perform all the duties as set forth in section two of the act of May twenty-ninth, one thousand eight hundred and ninety-one, being a supplement to the act of January thirtieth, one thousand eight hundred and seventy-four.* It shall be the duty of said assessors, respectively, to attend at the place of holding every general, special or township election, during the whole time said election is kept open, for the purpose of giving information to the inspectors and judge, when called on, in relation to the right of any person assessed by them to vote at such elec- tion, or such other matters in relation to the assessment of voters, as the said inspec- tors or judge, or either of them, shall from time to time require ; for which attendance said assessor shall be entitled to the sum of one dollar per day, to be paid as officers of election are paid by law ; and when the township is divided for which said assessor is elected, he shall attend at the election district in which he resides, and is entitled to vote.” 1 These seven paragraphs are the act 29 May non-registered voters, see act 30 January 1874. 1891. Purd. 722. As to the proof required of Purd. 735. 2 Act 2 July 1839. Purd. 721. 376 ELECTIONS. IV. OF THE GENERAL ELECTION. It shall be the duty of the sheriff of every county, at least ten days before any general election to be held therein, to give notice of the same by proclamation, posted up in the most public places in every election district, or by advertisements in at least two newspapers, if there be so many published in the county, representing so far as practicable the political parties which at the preceding election cast the largest and next largest number of votes, and in every such proclamation or advertisement shall, J. Enumerate the officers to be elected and give a list of all the nominations made as provided in this act, and to be voted for in such county as far as may be in the form in which they shall appear upon the ballots, and the full text of all constitu- tional amendments submitted to a vote of the people, but the proclamations posted in each election district need not contain the names of any candidates but those to be voted for in such district. II. Designate the place at which the election is to be held. III. He shall give notice that every person, excepting justices of the peace, who shall hold any office or appointment of profit or trust under the government of the United States, or of this state, or of any city, or incorporated district, whether a commis- sioned officer or otherwise, a subordinate officer or agent who is or shall be employed under the legislative, executive or judiciary department of this state, or of the United State, or of any city, or incorporated district, and also that every member of Congress and of the state legislature, and of the select or common council of any city, or com- missioners of any incorporated district, is by law incapable of holding or exercising at the same time the office or appointment of judge, inspector or clerk of any election of this commonwealth, and that no inspector, judge or other officer of any such election shall be eligible to any office to be then voted for, except that of an election officer.’ The thirteenth section of the act, passed July 2d 1839, entitled ‘‘an act relating to the elections of this commonwealth,” shall not be so construed as to prevent any militia officer or borough officer from serving as judge, inspector or clerk, at any general or special election inthis commonwealth.?7 All persons acting as judges and inspectors of the general election in the city and county of Philadelphia may be re-elected, any law to the contrary notwithstanding.* No person shall be disqualified from serving as an election officer or canvasser by reason of his employment (in the city of Philadelphia) in any subordinate position in any public office.* The inspectors and judges, chosen as aforesaid, shall meet at the respective places appointed for holding the election in the district to which they respectively belong, before nine o’clock in the morning of the ‘‘ Tuesday next following the first Monday of November,’’ in each and every year, and each of said inspectors shall appoint one clerk, who sha!] be a qualified voter of such district.® In case the person who shall have received the second highest number of votes for inspector, shall not attend on the day of any election, then the person who shall have received the second highest number of votes for judge at the next preceding election, shall act as an inspector in his place; and in case the person who shall have received the highest number of votes for inspector shall not attend, the person elected judge shall appoint an inspector in his place ;* and in case the person elected a judge shall not attend, then the inspector who received the highest number of votes shall appoint a judge in his place;’ and if any vacancy® shall continue in the board for the space of one hour after the time fixed by law for opening of the election, the qualified voters of the township,.ward or district, for which such officer shall have 1 Act 10 June 1893 310. Purd. 727. 2 Act 16 April 1840 34, Purd. 729. ® Act 28 April 1851 36. Ibid. * Act 6 April 1870 2 3. Ibid. power to make an appointment to fill the va- cancy in the office of judge. Penn. District Election Case, Com. Pleas, Phila., 7 December 1847. MS. 5 Act 2 July 1839 315. Purd. 730. 6 The person so appointed is entitled to act for the whole year. Anon., Com. Pleas, Phila. March 1852. MS. See Bright. Hlect. Cas. 523 n. 8N. Y¥. 67, 88. 1 Where an election judge appointed a person inspector, in the place of the one who received the highest number of votes, he being absent, and the judge subsequently removed from the ward; held, that the inspector so avnointed had 8 Upon the division of an election district, the functions of the election officers are de- stroyed, and cannot be exercised in either of the new election districts into which the old one is divided, The official functions of local offi- cers fall with the political annihilation of the locality for which they were chosen or ap- pointed. Bright. Elect. Cas, 517. 3S. & RB. 121. And see 11 Phila. 300. ELECTIONS. 377 been elected, present at the place of election, shall elect one of their number to fill such vacancy. In case any clerk, appointed under the provisions of this act, shall neglect to attend at any election during said year, it shall be the duty of the inspector who appointed said clerk (or the person filling the place of such inspector) to forthwith appoint a suitable person as clerk, qualified as aforesaid, who shall perform said duties for the year. The inspectors, judges and clerks aforesaid shall, before entering on the duties of their offices, severally take and subscribe the oath or affirmation hereinafter directed,* which shall be administered to them by any judge, alderman or justice of the peace ; but if no such magistrate be present, one of the inspectors of the election shall admin- ister the oath or affirmation to the other judge and inspector, and then the inspector so qualified shall administer the oath or affirmation to him.‘ The following shall be the form of the oath or affirmation to be taken by each in- spector, viz.: ‘J, (A. B.) do that Iwill duly attend to the ensuing election, during the continuance thereof, as an inspector, and that I will not receive any ticket or vote from any person other than such as I shall firmly believe to be, according to the provisions of the constitution and the laws of this commonwealth, entitled to vote at such election, without requiring such evidence of the right to vote as is directed by law, nor will I vexatiously delay or refuse to receive any vote from any person whom I shall believe to be entitled to vote as aforesaid, but that I will in all things truly, impartially and faithfully perform my duty therein, to the best of my judgment and abilities ; and that Iam not, directly nor indirectly, interested in any bet or wager on the result of this election.’’® The following shall be the oath or affirmation of each judge, viz.: ‘‘I, (A. B.) do that I will, as judge, duly attend the ensuing election during the continuance thereof, and faithfully assist the inspectors in carrying on the same; that I will not give my consent that any vote or ticket shall be received from any person other than such as I firmly believe to be according to the provisions of the constitution and laws of this commmonwealth, entitled to vote at such election, without requiring such evidence of the right to vote as is directed by law, and that I will use my best endeavors to prevent any Jraud, deceit or abuse, in carrying on the same by citizens qualified to vote, or others, and that Iwill make a true and perfect return of the said election, and will in all things truly, impartially and faithfully perform my duty respecting the same, to the best of my judgment and abilities; and that Iam not, directly or indirectly, interested in any bet or wager on the result of this election.’ ® The following shall be the form of the oath or affirmation to be taken by each clerk, viz.: ‘‘Z(A.B.) do that I will impartially and truly write down the name of each elector who shall vote at the enswiny election, which shall be given me in charge, and also the name of the township, ward or district wherein such elector resides, and carefully and truly write down the number of votes that shall be given for each candi- date at the election, as often as his name shal! be read to me by the inspectors thereof, and in all things truly and faithfully perform my duty by the inspectors thereof, and in all things truly and faithfully perform my duty respecting the same, to the best of my judgment and ability ; and that I am not, directly or indirectly, interested in any bet or wager on the result of this election.’’™ 1 Act 2 July 1839 316. Purd. 730. Where a township is divided into election districts, under the act 18 May 1876, the court appoints the election board for the new districts, until an election is held for that purpose. Purd. 723. 2 Act 2 July 1839 317. Purd. 730. 3 Where one of the clerks, by intoxication, was unable to continue his labors, and another person was called to act in his place, but was not sworn, and continued to officiate until the regular clerk was able to resume his duties, the court refused to set an election aside on that ground, there being no allegation of fraud or mistake in conducting thd election, 2 Pars, 503. 1 Brewst. 69. Ibid. 140. 1t is a general rule of elections, that mere irregularities which do not tend to affect results, are not to defeat the will of the majority. But where the law has prescribed a time and place of election, and designated the officers who are to conduct it, a majority may not set up other officers and hold a separate election. 20 Penn, St. 493. 8 N.Y. 69. 1 Brewst. 67. 2 Luz. L. Reg. 19. 3 Ibid. 13. Where a ward or district is divided into precincts, the illegality of an election in one of them, in consequence of an improper person acting as judge, will not render the whole eleo- tion void; if the election in the other precinct was properly conducted, that poll will decide the election. Case of Penn District Election, Com. Pleas, Phila., 11 May 1850. MS. 4 Act 2 July 1839 318. Purd. 730, 5 Ibid. 2 19. 6 Ibid. 9 20. Purd. 731. 7 Ibid. 3 21 378 ELECTIONS. It shall be the duty of the said clerks forthwith to make out two copies of the forms of each of the said oaths or affirmations, which shall be severally subscribed by each of the inspectors, judges and clerks, and the said oaths or affirmations shall be certified under the hands of the persons by whom they shall be administered.* The inspectors, judge and clerks, required by law to hold township and general eleo- tions, shall take and subscribe the several oaths and affirmations, required by the 19th, 20th and 21st sections of the act of the second day of July 1839, entitled ‘‘an act relating to the elections of this commonwealth,’’ which oaths or affirmations shall be prepared or administered in the manner prescribed in the 18th and 22d sections of said act; and in addition to the power conferred by the 18th section of said act, the judge, or either of the inspectors, shall have power to administer the oaths prescribed by said act, to any clerk of a general, special or township election.” In addition to the oath now prescribed by law to be taken and subscribed by elec- tion officers, they shall severally be sworn or affirmed not to disclose how any elector shall have voted, unless required to do so, as witnesses in a judicial proceeding. All judges inspectors, clerks and overseers of any election held under this act shall, before entering upon their duties, be duly sworn or affirmed in the presence of each other. The judge shall be sworn by the minority inspector, if there shall be such minority inspector, and in case there be no minority inspector, then by a justice of the peace or alderman ; and the inspectors, overseer and clerks shall be sworn by the judge ; certifi- cates of such swearing or affirming shall be duly made out and signed by the officers so sworn, and attested by the officer who administered the oath. If any judge or minority inspector refuses or fails to swear the officers of election in the manner re- quired by this act, or if any officer of election shall act without being first duly sworn, or if any officer of election shall sign the form of oath, without being duly sworn, or if any judge or minority inspector shall certify that any officer was sworn, when he was not, it shall be deemed a misdemeanor, and upon conviction, the officer or officers so offending shall be fined not exceeding one thousand dollars, or imprisoned not exceed- ing one year, or both, in the discretion of the court.° V. MopE OF CONDUCTING ELECTIONS. The commissioners of every county within this commonwealth shall, on or before [seven o’clock] in the morning of the day of every general, special, electoral and township election, and at the times hereinafter specified, perform the following duties: I. At elections, as aforesaid, they shall cause to be delivered to one of the inspectors of every election district, within their respective counties, a sufficient number of boxes to contain the tickets (unless the same has already been provided for said town- ship), blank forms of election oaths, taily-papers, and returns made out in a proper manner, and headed as the nature of the election may require. II. At special, electoral and township elections, they shall, in addition to the fore- going, deliver to the aforesaid inspectors certified copies, under seal of office, of the duplicate copies delivered them to file in their respective offices, by the respective assessors of wards, townships, incorporated districts and boroughs within their re- spective counties, pursuant to the directions and provisions contained in the 5th seo- tion of this act; also a sufficient number of blank forms of certificates of election, for each person elected to any office voted for at township elections.* At all elections hereafter held under the laws of this commonwealth, the polls shall be opened at seven o'clock A. M., and closed at seven o’clock Pp. M.® 1 Aot 2 July 1839 3 22, Purd. 731. Adams and Franklin, by act 17 March 1855, 2 Act 13 June 1840 3 3. Purd. 731. Pamph. 99; to the counties of Dauphin and 8 Act 30 June 1874 ¢ 8. Ibid. Northumberland, by act 7 May 1855, Pamph. * Act 13 June 1840 37. Purd. 73%. By act 478; to the county of York, by act 16 March 11 March 1852 2 17,80 much of this section “as requires county commissioners to furnish every election district with a list of the voters residing therein,”’ is repealed, ‘‘so far as relates to township elections, in the county of Lancas- ter, and it shall be the duty of the inspectors to whom such lists are furnished at the general elections, to preserve the same for use at the township elections.” Pamph. 129. The pro- visions of the 17th section of the act 11 March 1852, are extended to the counties of Chester, Delaware, Montgomery, Cumberland, Fayette, 1861, Pamph. 148; to the county of Washing- ton, by act 1 May 1861, Pamph, 474; and to the county of Armstrong, by act 18 February 1869, Pamph. 205. See act 1 April 1873, Pamph. 475, as to Berks county. 5 Act 30 January 1874 25. Purd. 728. De- lay in opening the polls, in consequence of in- ability to organize the board, until after the time prescribed by law, does not necessarily vitiate the election. 3 Luz. L. Reg. 180. So, the closing of the poll during the dinner-hour ELECTIONS. 379 - At the opening of the polls, at all elections, it shall be the duty of the judges of election for their respective districts, to designate one of the inspectors, whose duty it shall be to have in custody the registry of voters, and to make the entries therein required by law; and it shall be the duty of the other of said inspectors, to receive and number the ballots presented at said election.' All elections by the citizens shall be by ballot; every ballot voted shall be numbered in the order in which it shall be received, and the number recorded by the clerks on the list of voters, opposite the name of the elector from whom received; and any voter voting two or more tickets, the several tickets so voted shall each be numbered with the number corresponding with the number to the name of the voter. Any elector may write his name upon his ticket, or cause the same to be written thereon, and attested by a citizen of the district.” ° The judges of the elections, within the limits of their respective wards, districts or townships, shall have power, and are hereby required to decide on the qualifications of any person claiming to vote at any election, whenever the inspectors thereof shall disagree upon the right of such person to vote, but not otherwise; and the inspectors thereof shall, upon such decision, forthwith receive or reject the vote of such person, as the case may be.® No inspector shall receive any ticket from any person other than an elector residing within the township; ward or district for which such inspector shall have been elected or appointed.‘ The respective assessors, inspectors and judges of the election, shall each have the power to administer oaths to any person claiming the right to be assessed, or the right of suffrage, or in regard to any other matter or thing required to be done or inquired into by any of the said officers, under this act; and any wilful false swearing by any person in relation to any matter or thing, concerning which they shall be lawfully in- terrogated by any of said officers or overseers, shall be perjury.® VI. OF THE QUALIFIED ELECTORS. Every male citizen,® twenty-one years of age,” possessing the following qualifica- tions, shall be entitled to vote at all elections : I. He shall have been a citizen of the United States at least one month. TI. He shall have resided in the state one year (or if, having previously been a quali- fied elector or native-born citizen of the state, he shall have removed therefrom and returned, then six months) immediately preeeding the election.* TII. He shall have resided in the election district ® where he shall offer to vote, at least two months immediately preceding the election.” IV. If twenty-two years of age or upwards, he shall have paid, within two years, a state or county tax, which shall have been assessed at least two months, and paid at least one month before the election.” will not vitiate. 19 Ohio St. 25. If one of the officers absent himself, after the poll is opened, the others may proceed. 2 Brewst.2. 1 Ibid. 68. Election officers are privileged from arrest on election day, except for treason, felony or breach of the peace. 1 Brewst. 152. 1 Act 30 January 1874 3 8. Purd. 731. 2 Act 30 January 187449. Ibid, 740. 3 Act 2 July 1839 3 6. Ibid. 731. 4 Act 2 July 1839 3 68. Ibid. 732. 5 Act 2 January 1874317. Purd. 732. 6A female is not a qualified elector in this state. 9 Phila. 241. See 11 BI. C. 0.200. 53 Mo. 58. 1 McArthur 169. 7 For the purpose of voting, a minor becomes of age on the day preceding the 21st anniver- sary of his birth. 1 Kulp 157. 8 The party must not only have actually re- sided in the state one year before tendering his vote, but such residence must have been with the intent to become a citizen of this state, and to abandon the citizenship the party may have previously had in ‘inother state. Anon., Com. Pleas. Phila., 3 November 1848. MS. See 2 Pet. Ad. 450. I Ash. 126. 1 Wall. Jr. C.C. 217. #12 Penn. St. 365. 2 Clark 82. 9 The term “election district,” signifies any part of a city or county having fixed boundaries within which the citizens residing therein must vote. 2 Clark 82. Students in an institution of learning may acquire a residence in the eleo- tion district in which the same is located, so ag to entitle them to vote therein. 11 Phila. 641. But they must show that they have actually ac- quired such residence therein. 1 Chest. Co. R. 257. Residents in an almshouse, under a con- tract of hire, have such residence as entitles them to vote, though they originally entered as paupers. 10 Phila, 213. Otherwise, of paupers who receive no wages, but merely perform cer- tain services and are accorded certain privileges, in return for their support. 11 W. N. C. 169. 10 This means two full calendar months. 12 W. N.C. 155. 11 The tax must have been personally assessed upon the voter. 28.& R.267. And have been paid in money. 1 Cong. Elect. Cas. 512-13. But it need not be a poll-tax. 2S. & R. 267. See 12 380 ELECTIONS. Every person claiming a right to vote at any election as aforesaid shall, if required by either of the inspectors, make proof: I. That he is a natural-born citizen of this commonwealth, or II. That he was settled therein on the 28th of September 1776, and has since continued to reside therein, or ; III. That having been a foreigner, who since that time came to settle therein, he took an oath or affirmation of allegiance to the same, on or before the 26th of March, Anno Domini 1790, agreeable to the then existing constitution and laws; and as evidence of any of the said facts, the oath or affirmation of such person shall be sufficient, or IV. That he is a natural-born citizen of some other of the United States, or had been lawfully admitted or recognised as a citizem thereof, on or before the 26th day of March 1790; and as evidence thereof, he shall, if required by any judge or inspector of the election, produce a certificate in due form from some judge, prothonotary, clerk of a court, mayor, alderman or justice of the peace, or shall be examined on his oath or affirmation, or V. That having been an alien, he has been naturalized conformable to the laws of the United States; and as the only evidence thereof, he shall produce a certifi- cate thereof, under the seal of the court where such naturalization took place ;? except where such person shall have resided in said ward, district or township for ten years or upwards next preceding such application to vote, in which case, the oath of such applicant shall be prima facie evidence of naturalization.? No person shall be admitted to vote whose name is not contained in the list of taxable inhabitants furnished by the commissioners, as aforesaid,’ unless, Ist: He produce a receipt for the payment within two years of a state or county tax, assessed agreeable to the constitution, and give satisfactory evidence, either on his own oath or affirmation, or the oath or affirmation of another, that he has paid such tax, or on failure to produce a receipt, shall make oath to the payment thereof, or, 2d: If he claim a right to vote by being an elector between the ages of twenty-one and twenty-two years, he shall depose, on oath or affirmation, that he has resided in the state at least one year next before his application, and make such proof of residence in the district as is required by this act, and that he does verily believe, from the accounts given him, that he is of the age aforesaid, and give such other evidence as is required by this act; [whereupon the name of the person so admitted to vote shall be inserted in the alphabetical list by the inspec- tors, and a note made opposite thereto by writing the word * tax,’’ if he shall be admitted to vote by reason of having paid a tax, or the word “ age,” if he shall be admitted to vote on account of his age,] and in either case, the reason of such vote shall be called out to the clerks, who shall make the like notes in the list of the voters kept by them.‘ In all cases where the name of the person claiming to vote is not found on the list furnished by the commissioners and assessor, or his right to vote, whether found thereon or not, is objected to by any qualified citizen, it shall be the duty of the inspectors to examine such person on oath as to his qualifications, and if he claims to have resided within the state for one year or more, his oath shall be sufficient proof thereof ;5 but he shall make proof by at least one competent witness, who shall be a qualified elector, that he has resided within the district for more than teu days next immediately preceding said election ;§ and shall also Phila. 626. 11 Ibid. 645. 5 W.N.C.8. Pay- ment of a mercantile tax is not a qualification. 11 W. N. C. 169. The foregoing are constitu- tional qualifications. Art. VI. 3 1. 1 A certificate of naturalization cannot be im- eached collaterally. 1 Browst. 183, 218, 263, 70. 3 Ibid, 601. But see 11 W. N.C. 169. 1 Del. Co. R. 222, Where the naturalization results from that of the paront, the parent's certificate must be produced. 13 Leg. Int. 140. 2 Act 2 July 1839 2 64. 8 See act of 1874 2 10. infra, p. 381. * Aot 2 July 1839 2 65. Purd. 735, 5 The election officers are concluded by the answers of the party offering to vote, as to his residence in the state; but they have the tight to obtain from him. full answers upon the question, and if not satisfactory, the vote should be rejected. Anon., Com. Pleas, Phila, 3 November 1848. MS. See 27 N. Y. 45. 6 If the name of one offering to vote is not found on the assessors’ list, it is the duty of the inspectors to demand proof, by at least one com- aoe witness, who is a qualified voter, that he as resided in the district for more than ten days, 2 Pars, 553, 580-1. An action cannot be main- tained against an inspector for refusing a vote, unless on proof of malice. 11 S. & R.35. 7% Brewst. 183. Ibid. 273. 3 Ibid. 601. See Bright. Elect. Cas, 190-6. ELECTIONS, 381 himself swear that his bond fide residence, in pursuance of his lawful calling, is within the district, and that he did not remove into said district for the purpose of voting therein. Every person qualified as aforesaid, and who shall make due proof, if required, of his residence and payment of taxes, as aforesaid, shall be admitted to vote in the township, ward or district in which he shall reside.? Qn the day of election,? any person whose name shall not appear on the registry of voters, and who claims the right to vote at said election, shall produce at least one qualified voter of the district as a witness to the residence of the claimant in the district in which he claims to be a voter, for the period of at least two months immediately preceding said election, which witness shall be sworn or affirmed, and subscribe a written or partly written and partly printed affidavit to the facts stated by him, which affidavit shall define clearly where the residence is of the person so claiming to be a voter; and the person so claim- ing the right to vote shall also take and subscribe a written, or partly written and partly printed, affidavit, stating, to the best of his knowledge and belief, when and where he was born; that he has been a citizen of the United States for one month, and of the commonwealth of Pennsylvania; that he has resided in the commonwealth one year, or if formerly a qualified elector or a native-born citizen thereof, and has removed therefrom and returned, that he has resided therein six months next preceding said election ; that he has resided in the district in which he claims to be a voter, for the period of at least two months immediately preced- ing said election; that he has not moved into the district for the purpose of voting therein; that he has, if twenty-two years of age, or upwards, paid a state or county tax within two years, which was assessed at least two months, and paid at least one month before the election; the said affidavit shall also state when and where the tax claimed to be paid by the affiant was assessed, and when and where, and to whom paid; and the tax receipt therefor shall be produced for examination, unless the affiant shall state in his affidavit that it has been lost or destroyed, or that he never received any; and if a naturalized citizen, shall also state when, where and by what court, he was naturalized, and shall also produce his certificate of naturalization for examination.‘ But if the person so claiming the right to vote shall take and subscribe an affidavit that he is a native-born citizen of the United States, or, if born else- where, shall state the fact in his affidavit, and shall produce evidence that he has been naturalized, or that he is entitled to citizenship by reason of his father’s naturalization, and shall further state in his affidavit, that he is, at the time of making the affidavit, of the age of twenty-one, and under twenty-two years: that he has been a citizen of the United States one month, and has resided in the state one year; or, if a native-born citizen of the state and removed therefrom and returned, that he has resided therein six months next preceding said election, and in the election district two months immediately preceding such election, he shall be entitled to vote, although he shall not have paid taxes. The said affidavits of all persons making such claims, and the affidavits of the witnesses to their residence, shall be preserved by the election board, and at the close of the election, they shall be inclosed, with the list of voters, tally-list and other papers required by law to be filed by the return-judge with the prothonotary, and shall remain on file therewith, in the prothonotary’s office, subject to examina- tion as other election papers are. If the election officers shall find that the appli- cant possesses all the legal qualifications of a voter, he shall be permitted to vote, and his name shall be added to the list of taxables, by the election officers, the word “tax,” being added where the claimant claims to vote on tax, and the word “ age,’’ where he claims to vote on age; the same words being added by the clerks, in each case, respectively, on the lists of persons voting at such election: 1 Act 2 July 1839 2 66. Purd. 735. from @ person not on the registry, is illegal, and 2 Ibid. 2 67. will be rejected in case of a contest. 105 Penn. 3 The constitution, art. VIII. 3 12, provides St.488. 4 Brewst. 531. 3 Luz. L. Reg. 10. Ibid. that the general election shall be held on the 13. 7 Leg. Gaz. 70. 2 Brewst. 1. And that, Tuesday next following the first Monday of No- without regard to the question whether the person vember. was actually qualified or not. 105 Penn. St. 488, 4 Every vote received without such affidavit, 5 Act 30 January 1874 310. Purd. 735-6. 382 ELECTIONS. It shall be lawful for any qualified citizen of the district, notwithstanding the name of the proposed voter is contained on the list of resident taxables, to challenge the vote of such person, whereupon the same proof of the right of suffrage, as is now required by law, shall be publicly made and acted on by the election board, and the vote admitted or rejected, according to the evidence. Every person claiming to be a naturalized citizen shall be required to produce his naturalization certificate, at the election, before voting, except where he has been for five years consecutively a voter in the district in which he offers his vote; and on the vote of such person being received, it shall be the duty of the election officers to write or stamp on such certificate the word “voted,” with the day, month and year; and if any election officer or officers shall receive a second vote on the same day, by virtue of the same certificate, excepting where sons are entitled to vote, because of the naturalization of their fathers, they and the person who shall offer such second vote shall be guilty of a misdemeanor, and on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court; but the fine shall not exceed five hundred dollars in each case, nor the imprisonment one year. The like punishment shall be inflicted, on conviction, on the officers of election who shall neglect or refuse to make, or cause to be made, the indorsement required .as aforesaid on said naturalization cer- tificate.* If any election officer shall refuse or neglect to require such proof of the right of suffrage as is prescribed by this law, or the laws to which this is a supplement, from any person offering to vote, whose name is not on the list of assessed voters, or whose right to vote is challenged by any qualified voter present, and shall admit such person to vote, without requiring such proof, every person so offending shall, upon conviction, be guilty of a misdemeanor, and shall be sentenced, for every such offence, to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not more than one year, or both, at the discretion of the court.? In all elections, hereafter, the certificate of naturalization, if genuine, shall be conclusive evidence of the facts mentioned therein; and where the person offering to vote claims the right on the payment of tax, the receipt for such tax, if signed by the proper officer, shall be the evidence thereof; if such person does not produce such receipt, then the payment of the tax may be proved by the oath of such person, or other evidence, stating when, where and to whom such tax was paid.® Citizens of this state temporarily in the service of the state or of the United States governments, on clerical or other duty, and who do not vote where thus employed, shall not be thereby deprived of the right to vote in their several elec- tion districts, if otherwise duly qualified.* ‘So much of every act of assembly as provides that only white freemen shall be entitled to vote or to be registered as voters, or as claiming to vote at any gen- eral or special election of this commonwealth, is hereby repealed; and here- after all freemen, without distinction of color, shall be enrolled and registered, according to the provisions of the first section of the act approved April 17th, 1869, entitled “an act further supplemental to the act relative to the elections of this commonwealth,” and shall, when otherwise qualified under existing laws, be entitled to vote at all general and special elections in this commonwealth: Provided, This act shall in no way reduce the compensation of the assessors of Philadelphia, which shall be one thousand dollars, as now established by law.® VII. PREVENTION OF FRAUDS. On the petition of five or more citizens of any election district, setting forth that the appointment of overseers is a reasonable precaution to secure the purity and fair- ness of the election in said district, it shall be the duty of the court of common pleas of the proper county, all the law judges of the said court, able to act at the time, concurring, to appoint two judicious, sober and intelligent citizens of the said district, belonging to different political parties, overseers of election to supervise the proceedings of election officers thereof, and to make report of the same as they may 1 Act 30 January 1874 311. Purd. 736. 4 Act 17 April 1869 3 19. Purd. 733, 2 Toid. 312. See 105 Penn. St.488. 1 Del. Co. § Act 6 April 18703 10. Ibid. See 92 U.S ‘R. 50. 214, 542. 110 Ibid. 651. 10 Biss 283. 3 Act 13 February 1874 33. Purd. 737. ELECTIONS. 383 be required by such court. Said overseers shall be persons qualified to serve upon election boards, and shall have the right to be present with the officers of such clection, during the whole time the same is held, the votes counted, and the returns made out and signed by the election officers; to keep a list of voters, if they see proper; to challenge any person offering to vote, and interrogate him and his witnesses, under oath, in regard to his right of suffrage of said election, and to examine his papers produced: and the officers of said election are required to afford to said overseers, so selected and appointed, every convenience and facility for the discharge of their duties. And if said election officers shall refuse to permit said overseers to be present, and perform their duties as aforesaid, such officer or officers shall be guilty of a misdemeanor, and on conviction thereof, shall be fined not exceeding one thousand dollars, or imprisoned not exceeding one year, or both, in the discretion of the court. Or, if the overseers shall be driven away from the polls by violence or intimidation, all the votes polled in such election district may be rejected by the proper tribunal trying a contest under said election; or a part or portion of such votes aforesaid may be counted, as such tribunal may deem neces- sary to a just and proper disposition of the case.’ VIII. Duties oF PEACE OFFICERS. Tt shall be the duty of every mayor, sheriff, deputy-sheriff, alderman, justice of the peace, and constable or deputy-constable of every city, county and township or district within this commonwealth, whenever called upon by any officer of an elec- tion, or by any three qualified electors thereof, to clear any window, or avenue to any window, at the place of the general election, which shall be obstructed in such a way as to prevent voters from approaching the same, and on neglect or refusal (so) to do, on such requisition, said officer shall be deemed guilty of a misdemeanor in office, and on conviction, shall be fined in any sum not less than one hundred, nor more than one thousand dollars. And it shall be the duty of the respective constables of each ward, district or township within this commonwealth, to be present in person, or by deputy, at the place of holding such elections in said ward, district or township, for the purpose of preserving the peace as aforesaid.’ : It shall be the duty of every peace officer as aforesaid, who shall be present at any such disturbance at an election as is described in this act, to report the same to the next court of quarter sessions, and also the names of the witnesses who can prove the same; and it shall be the duty of said court to cause indictment to be preferred before the grand jury against the persons so offending. If it shall be made appear to any court of quarter sessions of this commonwealth, that any riot or disturbance occurred at the time and place of holding any election under this act, and the constables who are enjoined by law to attend to such elec- tions have not given information thereof, according to the provisions of this act, it shall be the duty of said court to cause the officer or officers, so neglecting the duty aforesaid, to be proceeded against by indictment for a misdemeanor in office ; and on conviction thereof, the said officer shall be fined in any sum not exceeding one hundred dollars.® It shall be the duty of the several courts of quarter sessions of this common- wealth, at the next term of said court after any election shall have been held under this act, to cause the respective constables in said county to be examined on oath, as to whether any breaches of the peace took place at the election within their respective townships, wards or districts ; and it shall be the duty of said constables respectively to make return thereof as part of their official return at said court.® give notice to the people to remove themselves, 1 Act 30 January 1874 3 4. Purd. 746, ‘See before proceeding to violent measures ; but hav- 4 Brewst. 531. An entire division will not be thrown out, unless the disregard of law has been so fundamental, or so persistent and continuous, as to render it impossible to distinguish what votes were lawful, and what were unlawful, or to arrive at any certain result whatever; or where the great body of the voters has been prevented, by violence, intimidation or threats from exer- cising their franchise. 10 Phila. 389. 82 Penn. St. 297. 68 Ibid. 333. And see 1 Brewst. 11, 67, 162, 2Tbid. 1. 27 Leg. Int. 181. 34 Ibid. 97. 11 W.N. C. 169. ing given this notice, he has the right to use as much force as may be necessary to accomplish the object; and every citizen who is called on to as- sist him, is bound to do so. Commonwealth v. Hamilton, Lancaster Q. S., 22 January 1849. MS. 3 Act 2 July 18393111. Purd. 747. * Ibid. 3 112. 5 Ibid. 2 113. 6 Thid. Sid Repealed as to Bradford and Susquehanna counties, by act 19 March 1869. Pamph. 441. 384 ELECTIONS. It shall not be lawful, after the passage of this act, for the sheriff of any county co-extensive in boundaries with any city of the first class, to appoint any deputies to be present and act as such, for preserving the peace, or for any other purpose, at any election polls within said cities of the first class.? It shall be the duty of the police officers, constables and deputy-constables now re- quired by law to be present at the polls to remain within the voting-room, but outside the guard-rail, while the votes are being counted, and to preserve order therein. No person except the said peace officers, when necessary for the preservation of the peace or persons acting by their authority for the same end, shall enter the space within the guard-rail, or communicate with any election officer in any way after the polls are closed, and until the counting of the votes has been completed.” IX. CLosIna OF POLLS—COUNTING OF VOTE—RETURN. As soon as the election shall be finished, the tickets, list of taxables, one of the lists of voters, the tally-papers and one of the certificates of the oath or affirmation taken and subscribed by the inspectors, judges and clerks, shall all be carefully collected and deposited in one or more of the ballot-boxes, and such box or boxes, being closely bound round with tape, shall be sealed by the inspectors and the judge of the elec- tion; and together with the remaining ballot-boxes, shall within one day thereafter be delivered by one of the inspectors, to the nearest justice of the peace, who shall keep such boxes containing the tickets and other documents, to answer the call of any persons or tribunal authorized to try the merits of such election ; and the other list of voters, tally-papers and certificates shall be inclosed by the said inspectors and judge in a sealed cover, directed to the prothonotary of the court of common pleas of the county, and shall by some one of them be delivered into his office, within three days thereafter, where the same shall be filed.* As soon as the polls shall close, the officers of election shall proceed to count all the votes cast for each candidate voted for, and make a full return of the same, in tripli- cate, with a return-sheet in addition, in all of which the votes received by each candi- date shall be given, after his or her name, first in words, and again in figures, and shall be signed by all of said officers and certified by overseers, if any, or if not so certified, the overseers and any officer refusing to sign or certify, or either of them, shall write upon each of the returns his or their reaaons for not signing or certifying them. The vote, as soon as counted, shall also be publicly and fully declared from the window, to the citizens present, and a brief statement, showing the votes received by each candidate, shall be made and signed by the election officers, as soon as the vote is counted, and the same shall be immediately posted up on the door of the elec- tion house, for information of the public. The triplicate returns shall be inclosed in envelopes, and be sealed in presence of the officers, and one envelope, with the un- sealed return-sheet, given to the judge, which shall contain one list of voters, tally- paper, and oaths of officers, and another of said envelopes shall be given to the minority inspector. All judges living within twelve miles of the prothonotary’s office, or within twenty-four miles, if their residence be in a town, village or city upon the line of a railroad leading to the county seat, shall, before two o'clock post-meridian of the day after the election, and all other judges shall, before twelve o’clock meridian of the second day after the election, deliver said return, together with return-sheet, to the prothonotary of the court of common pleas of the county ; which said return-sheet 1 Act 24 March 1877 é 1. Purd. 747. Quere? 2 A policeman has no business at the polls, ag to the constitutionality of the act? It is cer- except when specifically required. 34 W.-N. C. tainly a local law, prescribing the powers and 476, duties of county officers, in a single county. See 5 Aot 2 July 1839 3 74, Purd. 745. Const., art. III., 37; and 105 Penn. St. 377. ELECTIONS. 885 shall be filed, and the day and hour of filing marked thereon, and shall be preserved by the prothonotary for public inspection.? Nothing in this act shall require the returns of election of township or borough officers to be made to the court as directed in this section; but all returns of the eleo- tion of township and borough officers shall be inclosed in a sealed cover, directed to the prothonotary of the court of common pleas of the proper county,” and shall, by some one of them, be delivered into his office, within three days after every such election, and filed therein.® After the polls are closed the election officers only shall remain in the voting room within the guard-rail, and shall there at once proceed to count the votes. Such counting shall not be adjourned or postposed until it shall have been fully completed. A record shall first be made of the number of the last ballot cast; the officers in charge of the voting check list shall, in the presence of the other officers and watchers, count in « distinct and audible voice the names checked on the said list and announce the whole number thereof, and the lists of voters, the stubs of ballots used, and all unused ballots shall then be sealed’ up as required by section twenty-five of this act. The ballot-box shall then be opened by the inspectors, the ballots taken therefrom and audibly counted one by one by them, and when the count is completed the whole number of ballots cast shall be announced, and the counting of the number of votes received by each person voted for shall then proceed. The judge, in the presence of the inspectors, shall read aloud the name or names marked or inserted upon each ballot, and the answers marked thereon to the questions submitted, if any, and the clerks shall each carefully enter each vote as read, and keep account of the same on tally-papers prepared for the purpose. It shall be unlawful for either judge or in- spector, while counting the ballots or the votes thereon, to have in his hand any pen, pencil or stamp for marking ballots.* All ballots after being removed from the box shall be kept within the unobstructed view of those present in the voting room, so that they may be able to see all the marks on each ballot, but out of their reach until they are placed in the ballot-box as required by law. A full return shall be made in the manner now provided by law of all the votes cast, and the total vote, as soon as counted, shall be publicly announced.® X. BALLOT-BOXES. The commissioners for the city of Philadelphia shall provide a fire-proof room or vault in the public buildings of the said city, or some other suitable place, at which the judge of the elections, after the closing of the polls and the requirements of the law have been complied with, shall forthwith there deliver to the mayor and recorder of the city of Philadelphia the said ballot-boxes ; the said room or vault shall not be accessible to any other person than the mayor and recorder aforesaid, who shall be present and receive at the said room or vault the ballot-boxes from the return-in- spectors as aforesaid. The mayor and recorder aforesaid shall not take or open, or permit to be taken or opened, any ballot-box deposited as aforesaid for the space of one year after the same has been therein deposited, except when they shall be called upon by some court or other tribunal authorized to try the merits of such election ; and after such trial or investigation it shall be the duty of the mayor and recorder aforesaid to have said box or boxes returned and deposited as aforesaid. Whenever a place has been or shall be provided by the authorities of any city, county, township or borough, for the safe keeping of the ballot-boxes, the judge and 1,8 Act 30 January 1874313. Ibid. These +4 Act 10 June 1893 3 28. Purd. 745. The two and the preceding section, except as tothe legality of the ballots must be determined and return, are supplied by the act 10 June 1893, 3 received or rejected upon evidence, when the 28, P. L. 419, infra. same are about to be counted. 13 C. C. 609. 2 By act 13 February 1874, 3 2, P. L. 44,such 5 Act 10 June 1803 3 28. Purd. 746, returns are to be made to the clerk of the court © Act 1 May 1861911. Purd. 746. of quarter sessions. 25 386 ELECTIONS. minority inspector shall, after the election shall be finished, and the ballot-box or boxes containing the tickets, list of voters and other papers have been securely bound with tape and sealed, and the signatures of the judge and inspectors affixed thereto, forthwith deliver the same, together with the remaining boxes, to the mayor and re- corder of such city, or in counties, townships or boroughs, to such person or persons as the court of common pleas of the proper county may designate, at the place pro- vided as aforesaid, who shall then deposit the said boxes and keep the same to answer the call of any court or tribunal authorized to try the merits of such election: Whenever the election officers of any election district shall require the election boxes of such district to hold any election which by law they are or shall be required to hold, they shall keep the same securely in their possession, without opening, until the morning of such election, and until they shall severally be, sworn or affirmed not to disclose how any elector shall have voted, and, after being so sworn or affirmed, they shall open the said boxes and burn and totally destroy all the ballots and other papers which they shall find therein before proceeding to hold such election.’ XI. Duties OF THE RETURN-JUDGES. At twelve o'clock on the said second day following any election, the prothonotary of the court of common pleas shall present the said returns to the said court ; in counties where there is no resident president judge, the associate judges shall perform the duties imposed upon the court of common pleas, which shall convene for said purpose ; the returns presented by the prothonotary shall be opened by said court, and computed by such of its officers and such sworn assistants as the court shall appoint, in the presence of the judge or judges of said court, and the returns certified and certificates of election issued under the seal of the court as is now required to be done by return- judges; and the vote, as so computed and certified, shall be made a matter of record in said court. The sessions of the said court shall be open to the public.” And in case the return of any election district shall be missing, when the returns are presented, or in case of complaint of a qualified elector, under oath, charging pal- pable fraud or mistake, and particularly specifying the alleged fraud or mistake, or where fraud or mistake is apparent on the return, the court shall examine the return, and if, in the judgment of the court, it shall be necessary to a just return, said court shall issue summary process against the election officers and overseers, if any, of the election district complained of, to bring them forthwith into court, with all election papers in their possession ;* and if palpable mistake or fraud shall be discovered, it shall, upon such hearing as may be deemed necessary to enlighten the court, be cor- rected by the court, and so certified; but all allegations-of palpable fraud or mistake shall be decided by the said court, within three days after the day the returns are brought into court for computation ; and the said inquiry shall be directed only to pal- pable fraud or mistake, and shall not be deemed a judicial adjudication to conclude any contest now or hereafter to be provided by law. And the other of said triplicate returns shall be placed in the box and sealed up with the ballots. In counties where there are three or more judges of said court learned in the law, at least two judges shall sit to compute and certify returns, uhless unavoidably pre- vented. If any of the said judges shall himself be a candidate for any office at an election, he shall not sit with the court, or act in counting the returns of such election, and in such cases, the other judges, if any, shall act; and if, in any county, there 1 Aet 30 January 1874 2 13. Purd. 746. judicial power. 1 Brewst. 67,77. 74 Penn. St. 2Tfa majority of the votes have been cast for a disqualified person, the one who received the next highest number is not to be returned as elected. 56 Penn. St. 270, And see Bright. Elect. Cas. 50. Return-judges are mere minis- terial officers; it is their duty simply to cast up the votes, and award the certificate to the per- son having the highest number; they have no 479. And see Bright. Elect. Cas. 300-6. 11 Abb. Pr. (N. S.) 203. In case of an election to fill a vacancy, for which no proclamation has been made by the sheriff, the judges will com- pute the . ste, but will not give a certifizate of election. 14 W. N.C. 208, 209. 5 See 6 Luz. L. Reg. 216, ELECTIONS. 387 shall be no judge qualified to hold the said court, under the provisions of this act, present and able to act, then, and in every such case, the register of wills, the sheriff, and the county commissioners of the proper county, shall be and constitute a board, who, or a majority of whom, shal) have and exercise all the powers and perform all the duties vested in, or required to be performed by the court of common pleas of such county, by and under the provisions of this section; but none of the said officers shall act as a member of such board, when himself a candidate for any office at the election, the returns of which the said board is required to count under the provisions of this section. The returns required by this act to be presented by the prothonotary of the courts of common pleas of the counties of Philade[{phia and Allegheny, re- spectively, shall be presented to such three or more of the judges of the several courts of common pleas of said counties, respectively, as the judges of said courts, or a majority of them, may designate to perform the duty of receiving, computing and certifying said returns. When two or more counties are connected for the election of any officer, the courts of such counties shall each appoint a return-judge, to meet at such time and place as required by law, to compute and certify the vote of such dis- trict. All officers provided for by this act shall be compensated as like officers are paid by existing laws. The clerks shall, thereupon, in presence of the judges, make out returns in the manner hereinafter directed, which shall be signed by all the judges present, and attested by said clerks; and it shall not be lawful for said judges or clerks, in casting up the votes which shall appear to have been given, as shown by the certifi- cates under the 76th and 77th sections of this act, to omit or reject any part thereof, except where, in the opinion of said judges, such certificate is so defective as to prevent the same from being understood and computed in adding together the number of votes; in which case, it shall be the duty of said clerks to make outa true and exact copy of said paper or certificate, to be signed by said judges, and attested by said clerks, and attached to, and transmitted with said return (where the same is directed to be transmitted) to the secretary of the commonwealth, and the original paper shall be deposited in the prothonotary’s office, and by said officer copied and transmitted, with the return of said election, to the secretary as aforesaid. I. Duplicate returns of all the votes given for every person and persons, who shall have been voted for, for any office or station, which the electors of the county are entitled to choose of themselves, unconnected, with any other county or dis- trict. II. Like returns of all the votes given in the county, for every person voted for as governor. III. Triplicate returns of all the votes given for any persons voted for in the county, as electors of president and vice-president of the United States.’ When the returns shall be completed, the president of the board of judges aforesaid shall forthwith lodge one of each of such returns in the office of the prothonotary of the court of common pleas of the county; and in case of an election of electors for president and vice-president of the United States, one other of the returns in the same office; and the other duplicates shall be transmitted as follows, viz. : I. In the case of a governor, the remaining duplicate shall-be inclosed in an envelope, directed to the speaker of the senate, and indorsed according to the fact, which having been sealed, shall be inclosed in another envelope, sealed and directed to the secretary of the commonwealth; and the same shall forthwith be placed, by the said president, in the nearest post-office. II. In case of electors of president and vice-president of the United States, and of members of the house of representatives of the United States, and of county officers 1 Act 30 January 1874213. Purd. 749-50. 2 Act 2 July 1839 379. Purd. 750. 388 ELECTIONS to be commissioned by the governor, the remaining duplicate shall be inclosed in an envelope, sealed and directed to the secretary of the commonwealth, and in like manner placed, by the said president, in the nearest post-office. III. In ease of the election of a senator or senators of this commonwealth, the same shall be inclosed in an envelope, sealed and directed ‘‘ To the Senate of Penn- sylvania ;’’ and in case of the election of a member or members of the house of representatives of this commonwealth, the same shall, in like manner, be inclosed in an envelope, sealed and directed ‘‘To the House of Representatives of Pennsylva- nia;’’ and each of said returns shall be inclosed in an envelope, and ditected to the secretary of the commonwealth, and in like manner placed, by said president, in the nearest post-office.’ When two or more counties shall compose a district for the choice of a member or members of the senate of this commonwealth, or of the house of representatives of the United States, or of this commonwealth, the judges of the election, in each county, having met as aforesaid, the clerks shall make out a fair statement of all the votes which shall have been given at such election, within the county, for every person voted for, as such member or members, which shall be signed by said judges, and attested by the clerks; and one of the said judges shall take charge of such certificate, and shall produce the same at a meeting of one judge from each county, at such place, in such district, as is or may be appointed by law for the purpose; which meeting shall be held on the seventh day after the election.’ The judges of the several counties having met as aforesaid, shall cast up the several county returns, and make duplicate returns of all the votes given for such office, in said district, and of the name of the person or persons elected, and one of said re- turns for each office, shall be deposited in the office of the prothonotary of the court of common pleas of the county in which they shall meet, and the other shall be, by said judges, deposited in the nearest post-office, sealed and directed to the secretary of the commonwealth, in the manner directed in parts two and three of the 80th sec- tion of this act.? It shall also be the duty of the return-judges, in every case, to transmit to each of the persons elected to serve in congress, or in the senate, or in the house of repre- sentatives of this commonwealth, a certificate of his election, within five days after the day of making up such return.* In cases of election of county commissioners and county auditors, one copy of the return of election shall be inclosed in an envelope, sealed and directed ‘‘ to the com- missioners ’’ of the proper county.® XII. TowNsHIP ELECTIONS. The constable or constables of every township within this commonwealth, shall give public notice of the township elections, by ten or more printed or written advertisements, affixed at as many of the most public places therein, at least ten days before the election, and in every such advertisement they shall enumerate, designate and give notice as sheriffs of counties in cases of general elections are directed, by the Ist and 2d divisions of the 13th section of the act to which this is a supple- ment; and in case of the reglect, refusal, death or absence of the aforesaid constable or constables, the duties herein enjoined on them shall be performed by the super- visors or assessor of the proper township, but said supervisors or assessor of the proper township shall not be required to give more than five days’ notice; and said elections shall be held and conducted under the regulations, not inconsistent here- with, prescribed in the aforesaid act; but nothing in this act, or in the act to 1 Act 2 July 1839 3 80. Purd. 750. “Thid. 2 83. A mandamus will lie, to compel 2 Ibid. 2 81. them todo so. 74 Penn. St, 479. ® Ibid. 3 82. 5 Act 13 June 1840 3 8. Purd. 751. ELECTIONS. 389 which this is a supplement contained, shall be construed to prohibit a judge, inspector or clerk of election from being voted for to fill any township office, or render either or any of them ineligible to hold the same. The election for the said township officers shall be held during the same hours, and by the persons appointed to hold the election of inspectors and assessors, on the third “Tuesday of February” of every year? It shall be the duty of the said inspectors and judge, to make out a certificate of the election of each township officer aforesaid, which shall be signed by them and delivered to the constable of the proper ward, district or township ; and by him rr to the said officer or left at his usual place of abode within six days there- after. The clerk of the court of quarter sessions of every county within this common- wealth shall, within fifteen days after the township elections, in each year, are returned into his office, (to) make out, certify and deliver, under his hand and seal of office, to the commissioners of his proper county, a list of the names of the per- sons elected to the offices of assessor and assistant assessors, and the names of the wards, townships, incorporated districts and boroughs, within their respective counties, for which they were respectively elected; and shall be allowed there- for the usual fees for equal or similar services, to be paid out of the county treasury.* Every judge as aforesaid shall be allowed six cents per mile, for each mile necessarily travelled in delivering the return of the township election of his proper township, to the clerk of the court of quarter sessions ; said mileage, to be computed circular, and paid out of the county treasury, on orders drawn by the commissioners in the usual manner: Provided, That no compensation shall be paid where the return is not delivered within the time prescribed by law; and no daily pay shall be allowed for making returns of township elections Constables, supervisors or assessors, as the case may be, of any ward, township, incorporated district or borough, shall be allowed and paid out of the county treasury, two dollars for advertising ward, township, district and borough elections ; said constables shall also be allowed and paid, as aforesaid, twenty cents for deliver- ing to each township officer a certificate of his election, as directed by this act, and the act to which this is a supplement.® When any new township shall be erected in any county of this commonwealth, it shall be lawful for the court of quarter sessions of the proper county to authorize the citizens of said new township to hold an election for justices of the peace, and all other township officers, upon such notice as the court may direct.’ Whenever it shall become necessary for the citizens of any township in any of the counties of this commonwealth, which has been or shall be divided in any way in forming any election district or districts, to elect justices of the peace, judges and inspectors of elections, assessors, constables, school directors or other township officers, in pursuance of any act or acts of assembly, the qualified voters of such township shall meet at the usual place of holding their annual township elections respectively, and shall then and there proceed to elect such officers in the manner now provided for by law, and the returns of such elections shall be made out in the same manner as is now provided for by the laws of this commonwealth; and such township election so held in any township which may be divided as aforesaid, shall be held and conducted only by the judge, inspectors and clerks residing in the dis- trict where the place of holding the township election is or may be located, any law to the contrary notwithstanding: Provided, That whenever a vacancy happens by death, resignation, removal or otherwise, then the judge or inspector residing in the township and district nearest to the place of holding the township election shall hold and conduct the same.® It shall be the duty of the judge and inspectors holding and conducting such 1 Act 13 June 1840 32. Purd. 378,760. Aclerk 5 Act 13 June 1840310. Purd. 760. of election is eligible to any township office. 3 6 Ibid. 3 11. Luz. L. Reg. 130. 7 Act 5 April 1849 2 32. Ibid. 2 Act 2 July 1839 353. Purd. 760. Const.of & Act 7 March 1840 3°27. Ibid. 761. See act 1874, art. VIII. 2 3. 18 May 1876, Ibid. 647, as to the appointment of 3 Act 2 July 1839 9 54. Ibid. election officers where a township is divided into Act 13 June 1810 39. Ibid. two or more election districts. 390 ELECTIONS. township election to keep as many separate boxes and separate lists of voters for judges and inspectors of elections as there are election districts or parts of election districts in such township respectively, in which they shall deposit the votes of the citizens residing within the limits of such district, or parts of districts, for judges and inspectors of the general elections in their particular districts, and the returns thereof shall be made out and certified in conformity with the provisions of the act of the 2d July, Anno Domini 1839, entitled “an act relating to the elections of this commonwealth ;” and in cases where part only of the township forms, in connection with other parts of other townships, a general election district, the judge holding such township election shall meet the judge or judges from the other town- ship or townships, forming part of such general election district, at the place of holding the general election, and the said judges shall then and there proceed to make out a general return from their respective returns, which shall be signed, certified and returned with their several returns, in like manner as is now provided for by law.? The judge, inspectors and clerks of each election district of any borough, ward or township in the counties of this commonwealth, which shall have been divided by the court into separate election districts, under the provisions of the act of April 20th, 1854, shall make out a complete return of all the votes given at any borough, ward or township election, designating the number of votes each person received; and the judge and inspectors shall appoint one of their number for return-judge, to meet the other return-judge or judges of the said borough, ward or township in said county, at the oldest election place, on the third day after any borough, ward or township election, and then add together the number of votes given for each person voted for, and make out the returns, as the nature of the election may require, complying in all respects with the provisions of existing elec- tion laws; and after the performance of said duties, appoint one of their number, by consent or lot, to deliver the full returns to the court of quarter sessions of said county, in the same manner now provided by law for making township returns: Provided, The provisions of this act shall not affect any existing election law relative to the city of Philadelphia, city of Pittsburgh, and Erie.? XIIl. Primary ELECTIONS. It shall be lawful and it is hereby made the duties of the judges, inspectors and clerks or other officers of the primary elections, meetings or caucuses held for the purpose of nominating candidates for state, city and county offices within the com- monwealth of Pennsylvania, before entering upon the discharge of their duties, severally to take and subscribe to an oath or affirmation in the presence of each other, in form as follows, namely : “ J, (A. B.) do that I will, as judge, inspector or clerk (as the case may be), at the enswing election, impartially and Saithfully perform my duties, in accordance with the laws and constitution of the commonwealth of Pennsylvania, and in accordance with the rules and regulations adopted by the party, of the county of , for the government of the said primary elections, meetings or caucus, to the best of my judgment and abilities :’’ The oath or affirmation shall be first administered to the judge by one of the inspectors, then the judge so qualified shall administer the oath or affirmation to the inspectors and clerks, and may administer the oath to any elector offering to vote, as to his qualifications to vote, at such election? ; If any judge, inspector, clerk or other officer of a primary election, as aforesaid, shall ‘presume to act in such capacity, before the taking and subscribing to the oath or affirmation required by this act, he shall, on conviction, be fined, not exceeding two hundred dollars; and if any judge, inspector, clerk or other officer, when in the discharge of his duties as such, shall wilfully disregard or violate the provisions of any rule, duly made by the said party, of county, for the government of the primary elections of the party, he shall, on conviction, be fined not exceeding two hundred dollars; and if any judge or inspector of a primary election as afore- said, shall knowingly reject the vote of any person entitled to vote under the rules of the said party, or shall knowingly receive the vote of any person or persons 1 Act 7 March 1840 3 28. Purd. 761. ® Act 29 June 188131. P 2 Act 2 April 1860 21. eee ae ELECTIONS. 391 not qualified 1s aforesaid, shall, on conviction, be fined not exceeding two hundred dol- lars; and if any judge, inspector, clerk or other officer of a primary election, as afore- said, shall be guilty of any wilful fraud in the discharge of his duties, by destroying or defacing ballots, adding ballots to the poll, other than those lawfully voted, by stuffing the ballot-box, by false counting, by making false returns, or by any act or thing whatsoever, the person so offending shall be deemed guilty of a misdemeanor, and upon conviction, shall be fined not exceeding five hundred dollars, or imprisoned not exceeding one year, or both, or either, at the discretion of the court. All acts or parts of acts of assembly inconsistent with this act are hereby repealed, except in counties or cities where special acts are in force for the same purpose: Provided, That the provisions of this act shall entail no expense to the counties or cities XIV. CoNnTESTED ELECTIONS. The several classes of elections which may be contested in this commonwealth are hereby distinguished and designated as follows, to wit: I. The governor and lieutenant-governor of the commonwealth. II. Electors of president and vice-president of the United States, and all officers of this commonwealth (except governor and lieutenant-governor), who now are or hereafter shall be required to be elected by the qualified voters of the state at large. III. The judges of the several courts of record, to be learned in the law, other than judges of the supreme court. IV. All other officers (excepting members of the general assembly), whether elected by the qualified voters of counties, cities, townships, boroughs, wards, schoo] districts or any other division of the state.? Cases of the fourth class shall be tried and determined by the court of quarter sessions of the peace of the county in which the election contested shall be held.® The proper court or judge shall have power to compel the attendance of any election officer, or other person, as a witness, and may also compel the production of all books, papers, tally-lists, returns of election, other documentary or record evidence, at discretion, for use on the trial, and may issue subpenas and attach- ments, for these purposes, as in other cases of proceedings in the courts of this commonwealth ; and all such books, papers, documents, ballots, boxes and records shall be returned to the proper custody.‘ Certified copies of all election papers, assessments, registers of votes and records, duly authenticated by the person hav- ing custody thereof, shall be competent evidence, and prim@ facie proof of their contents ; but the party, against whom the same shall be produced, shall have the right to compel the attendance of the person who certifies them, for cross-exam- ination. Examiners, to take and report evidence, may be appointed; and reason- able notice of the time and place of taking the same shall be prescribed by the court or judge, and served upon the opposite party. ‘Witnesses and officers shall be paid the same fees as are now, or hereafter shall be, fixed by law for similar services, in the county in which the trial shall be held’ If the court or judge shall decide that the complaint is without probable cause, the petitioners, and every of them, shall be jointly and severally liable for all the costs ; and the same may be collected as debts of like amount are by law collectible, or payment thereof may be enforced by attachment. In contested elections of electors of president and vice-president, and state officers whose jurisdiction extends over the state, in which the court or judge shall not decide that the complaint is without probable cause, the commonwealth shall be liable for all costs; and the same shall be paid by the state treasurer, out of any moneys-not otherwise appro- priated, on bills certified to be correct by the proper court or judge, upon examina- tion and approval of the auditor-general.? In contested elections of president or 1 Act 29 June 188132. Purd. 761. See the to open the ballot boxes will not be made, until act 8 June 1881, Purd. 481, as to bribery at the evidence is closed, and the illegality of the primary elections. votes proven, nor unless the declared result of 7 Act 19 May 187431. Purd. 763. the election will be thereby changed. 12 Phila. 3Tbid. 316. Purd. 767. 570. ‘The court may order a bill of particulars. 5 6 See 12 Phila. 571. W.N. 0.122. And see 1 Kulp 157, ™See 94 Penn. St. 381; and act 8 May 1876. 5 Act 19 May 1874 2 8. Purd. 767. Anorder Purd. 769. 392 ELECTIONS. additional law judges, senators, and members of the house of representatives and of county, borough, township or municipal officers, in which the court or judge shall not decide that the complaint is without probable cause, the proper district, county, city, township, borough, ward, school district or municipality, shall be liable to pay all costs; and the same shall be promptly paid by the proper authorities, upon the order of the court or judge trying the case. ; The proper court or judge shall have power to appoint phonographic reporters, if necessary, to take the testimony, and may order printing of such matters as may be necessary during the trial; and all bills for such reports and printing, certified to be reasonable and correct by the court or judge, shall be a part of the costs, and collectible as other costs in the case: Provided, That all printing required in cases of the second and third classes, shall be done by the state printer, at contract prices ; and in all other cases, the prices to be paid for such reporting and printing, shall be fixed in the order providing therefor, and no more than the amount thus fixed shall be paid in any case.? No judge shall sit on the trial of a case in which he shall be a party. In any case where, by reason of incompetency or any disability to act, there shall be no law judge of the district in which any contest shall arise present, and able as well as qualified to act, the judge learned in the law, residing nearest the court-house of the county in which, by the provisions of this act, the trial in any such case is required to be had, except in cases otherwise provided in this act, shall preside on the trial, and shall have and exercise all the powers and authority, and discharge all the duties, granted to or imposed upon the regular judges of the said courts, in cases wherein they are qualified and required to act by the provisions of this law. Any law judge, who is hereby authorized to preside in any such case, and an president or other judge, learned in the law, of the proper court, shall have full power to hold any of the said courts, by this act required to try any such contested election case, without the assistance of the associate justices, or either of them, of such courts, not learned in the law. And all of the said courts and judges, hereby required to try any contested election case, shall have plenary power to make, issue and enforce all necessary orders, rules, process and decrees, for a full and proper understanding and final determination and enforcement of the decision of every such case, according to the course of practice in similar cases, under the laws of this commonwealth, or which may be necessary and proper to carry out the pro- visions of this act.’ The commencement of proceedings, in every case, shall be by petition,* which shall be made and filed, as herein required, within thirty days after the day of election ;° the petition shall concisely set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal,® and after filing, shall not be amended, unless such amendment shall be allowed by the proper court or judge, after notice to the other party and hearing ;’ and if allowed, reasonable time shall be given to answer. In cases of the second class, the petition shall be signed by at least one hundred qualified electors* who voted at the election contested ; in cases 1 Act 19 May 1874 2 9. Purd. 767. 2 Ibid. 2 10. 8 Thid. 5 17. # To confer jurisdiction, under this act, all its requisites must be strictly complied with. 3 W. N. C. 165. 16 Ibid. 223. A contest involving the election of different persons to difforent offices cannot be raised by a single petition. 2 Leg. Chron. 307. 5 Seo 6 W. N. C. 460. If filed in due time, a commission cannot issue, pending the contest. 13 W. N.C. 170. 6 A petition will not be dismissed, merely because it does not aver in express terms, that the sontestant received the larger number of votes, if such fact be apparent, by an examination of the other statements therein. 12 Phila. 575. It need not set forth the names or the disqualifications of the illegal voters. 1 Leg. Ree. R. 105. A petition contesting an election, on the ground that there was no vacancy in the office, need not aver that the return is not correct. 2 Pears. 456. If it rely upon a missing return, it must show a duo application to the court, within three days, for summary process against the election officers. 25 Pitts. L.J.47. Repugnant specifications in the petition will be stricken out, 11 Phila. 393. 7 See 11 Phila. 383. 2 Pears. 456. 10 Phila. 579. 2 Leg. Reo. R. 145. 1 Ibid. 105. 8 All tho petitioners must be qualified clectors, 11 Phila. 403; and this must bo averred in the petition. Ibid. 402. Tho omission of such aver- ment is a fatal defect of jurisdiction; and cannot be cured by an amendment, after the lapse of thirty days from the election. 3 W.N. C. 165. And if one of the signers be subsequently ascer- tained not to be a qualified elector, the court can- not permit an amendment, by adding the name of another elector, with the appropriate vouchers. 16 W. N. C. 223. One of the signers will not be arg subsequently to withdraw his signature ey the petition, 14 Ibid. 303. And see 1 Phila. ELECTIONS. 393 of the third class, by at least fifty such electors; and in cases of the fourth class, by at least twenty-five ; and shall be verified by at least five of the petitioners, by affidavit taken and subscribed before some person authorized by the laws of this commonwealth to administer oaths, setting forth that they verily believe the facts stated therein are true, that according to the best of their knowledge and belief, the election was undue or illegal, and the return thereof not correct, and that the petition to contest the same is made in good faith.! The petition shall be presented to the court or law judge having jurisdiction, except where otherwise provided in this act; and, if it shall be adjudged sufficient it shall be filed of record in the proper court, and thereupon a time shall be fixed for hearing. Notice of the filing of the petition, with a copy thereof, shall be served upon the person whose right of office shall be contested, together with a rule to answer at the time fixed for hearing ;? which notice, copy and rule shall be served such length of time before the day fixed for hearing, as the said court or judge shall require, not exceeding forty days, in cases of the second and third classes, and in all other cases, not exceeding thirty days.° In trials of contested elections, and in all proceedings for the investigation of elections, no person shall be permitted to withhold his testimony, upon the ground that he may criminate himself, or subject him to public infamy ; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony.* Whenever, in contested elections of president or additional law judges, senators, and members of the house of representatives, and of county, borough, township or municipal officers, under the provisions of the ninth section of an act, entitled ‘“‘an act designating the several classes of contested elections in this commonwealth and providing for the trial thereof,’ approved the 19th of May, Anno Domini 1874, wherein it is provided that in contested elections of presidents or additional law judges, senators, and members of the house of representatives, and of county, borough, township or municipal officers, in which the court or judges shall not decide that the complaint is without probable cause, the proper district, county, city, township, borough, ward, school-district, or municipality shall be liable to pay all costs, and the same shall be promptly paid by the proper authorities and upon the order of the court or judge trying the case—if any court or judge shall have heretofore decided, or shall hereafter decide, that the complaint was not, or is not, without probable cause, the said court or judge is hereby authorized, and shall apportion all the costs among the proper districts, counties, cities, townships, boroughs, wards, school-districts or municipalities of the whole district in which contest is had, in such way as said court or judge shall think just; and to compel by order the payment of such amounts so apportioned to each by the properly con- stituted authorities of each other of the proper districts, counties, cities, townships, boroughs, wards, school-districts or municipalities, as the payment of debts by the same can now be enforced.® Prom and after the passage of this act, whenever it shall appear by the returns of election laid before the governor, by the secretary of the commonwealth, as now re- quired by law, that any person has been duly elected to the office of prothonotary, clerk of the courts, recorder of deeds or register of wills, judge, or any other officer re- ceiving a commission from the governor, in any of the several counties of this com- monwealth, it shall be the duty of the governor to issue a commission to such person, notwithstanding that the election of such person to any or either of said offices may be contested, in the manner now provided by law: Provided, That whenever it shall appear by the decision of the proper tribunal having jurisdiction of said contested election, that the person to whom said commission shall have issued, has not been legally elected to the office for which he has been commissioned, then a commission shall issue to the person who shall appear legally elected to said office ; the issuing of which commission shall nullify and make void the commission already issued, and all power and authority under said commission first issued shall thereupon cease and de- 1 All the affiants must be duly qualified elec- 2 Service of a copy of the petition is not a pre- tors. 11 Phila. 400. The jurat should show by requisite|to the jurisdiction; it must be served, whom the oath was made; and must bein the however, before the hearing. 11 Phila. 382. form prescribed by law. 13 L. Bar. 183. But 8 Act 19 May 1874318. Purd. 768. a formal objection to the affidavit cannot be 4 Ibid. 3 19 made, after the testimony has beentaken, and 5 Act 8 May 187631. Ibid. tha avaminawa ranart filad 19 Phila A217. 394 ELECTIONS. termine: Provided further, That this act shall not in any manner affect any contest now pending.? < Whenever the election of any officer shall hereafter be contested before the court of common pleas of the city and county of Philadelphia, the court shall, upon the application of any citizen, appoint a receiver, to take, receive and hold, during said contested election; and until the final determination thereof, all the fees, perquisites and emoluments of the office so contested ; and the said court shall require security to be entered by him, in such sums as they shall deem proper, conditioned for the faith- ful performance of all orders and decrees of said court; and they may, at any time, order additional security to be entered, or remove said receiver, and from time to time, appoint another receiver, as may be necessary.” Upon the final determination of said contested election, or sooner, if thereto re- quired by said court, the receiver or receivers so appointed, shall file his or their ac- counts, and the same may be examined and settled by said court, or be referred to an auditor or master, for that purpose; and the amount ascertained to be in the hands of said receiver or receivers, shall, after deducting such charges as may be allowed by said court, be paid over to the person or persons, and in the proportion said court shall decree: Provided, That any (person) aggrieved by the final decree upon said receiver’s account, may appeal therefrom, as in other equity proceedings.’ The said court shall, for the purpose of carrying this act into execution, have all the power of a court of equity, in cases where receivers are appointed by said courts, and may in their discretion, order investments to be made of any funds in the hands of said receiver or receivers, in the debt of the United States, of this state, or of the city of Philadelphia.* The said court of common pleas for the city and county of Philadelphia shall have power, whenever necessary for the determination of the same, to issue commissions to places outside of the state, and to appoint an examiner or examiners to take testimony within the state, and to make all needful rules relative to the examination of wit- nesses, the closing of the testimony and other matters, as in equity proceedings; and the examiner and examiners, so appointed, shall have power to issue subpoenas, and to compel the attendance of witnesses by attachments, and upon failure of any witness to testify, as required by said examiner or examiners, the court may attach for con- tempt, asin other cases.® The said court of common pleas of the city and county of Philadelphia may, upon final decree, enter a judgment for costs, either in whole or part, against the county, the petitioners or the respondent; or they may apportion the said costs, in equal or unequal parts, between the county, the petitioners and the respondent, as to them may seem just.® The final decrees of the said court, upon contested elections, may be enforced by in- junction, attachment and sequestration ; and their judgments as to costs may be en- forced, if against the county, by mandamus execution, and if against parties, by execution and attachment.’ Whenever in any contested election the tribunal trying the case shall decide that the ballots used in one or more election districts were, by reason of the omission, addition, misplacing, misspelling or misstatement of one or-.more titles of offices, or names of candidates, or parties or policies represented by them, so defective as to the office in contest as to be calculated to mislead the voters in regard to any of the ean- didates nominated for the said office, and that the defective condition of the said ballots may have affected the result of the entire election for the said office, the said tribunal shall declare the election to be invalid as regards the said office, and shall report their decision to the governor of the commonwealth. The governor, on receiving the report of the said decision, shall without delay cause a writ or writs of election for the office in contest to issue, and appoint a day within four weeks from the date of the writ for the holding of a new election, to be held according to the provisions of this act for the office in contest.® XV. WaGErRs ON ELECTIONS. + If any person or persons shall make any bet or wager upon the result of any election 1 Act 26 April 1889, Purd. 769, 8 Ibid. 3 4. 2 Act 10 April 186791. Ibid. 6 Ibid. 3 5. 8 Act 10 April 1867 32. Purd. 770. 7 Ibid. 3 6. * 4Tbid. 2 3. ® Act 10 June 1893 3 29. Purd. 770. ELECTIONS, 8395 within this commonwealth, or shall offer to make any such bet or wager, either by verbal proclamation thereof, or, by any written or printed advertisement, challenge or invite any person or persons to make such bet or wager, upon conviction thereof, he or they shall forfeit and pay three times the amount so bet or offered to be bet.! It shall be the duty of every judge, sheriff, mayor, alderman, justice of the peace or constable, knowing of any person having offended against the provisions of the 115th section of this act, to commence proceedings against the person so offending ; and it shall be the duty of the grand juries of the respective counties within this com- monwealth to make a presentment of all such offences coming within their knowledge.? It shall be the duty of the inspectors and judge of the election to reject the votes of all persons, they, or any of them, shall know, or who shall be proven before them, to have made, or who are in any manner interested in any bet or wager on the result of said election; and on the request of any qualified elector, said inspectors and judge shall receive proof to show the person so offering to vote has or has not made any such bet or wager, or is or is not interested therein.® It shall be the duty of the several constituted authorities having care and charge of the poor in the respective counties, districts and townships of this commonwealth, knowing or being informed, under oath, of any person or persons having made any bet or wager of any land, goods, money or thing of value, on the result of any election within this commowealth, or deposited the same in the hands of any person within their respective counties, districts or townships, to bring suit in the name of the com- monwealth of Pennsylvania, for the use of the poor of such county, district or town- ship, against such depositee or stakeholder, where said bet is deposited in the hands of a third person; or against the party winning said bet, when the same is not so de- posited, for the recovery of the amount so bet; and if on the trial it shall be made appear, that said lands, goods, money or thing of value was bet on the result of any election within this commonwealth, said guardians, directors or overseers of the poor shall be entitled to recover the amount or value thereof, for the use of the poor, from said stakeholder, or person winning said: bet where there is no stakeholder: Provided, said suit is brought within two years from time of making said bet. And the stake- holder is hereby prohibited, during said time, to pay over the amount so bet to either of the parties, and shall be liable for the same, whether such bet is paid over or de- livered to the parties, or either of them, or not, and the party winning shall in like manner be liable to the payment of the whole amount so bet, where the same is re- ceived by him. And said bet, or the value thereof, may be recovered as debts of like amount are by law recoverable; and if said guardians, directors or overseers of the poor shall neglect or refuse to bring such suit, they shall be guilty of a misdemeanor in office, and on conviction, shall be fined in any sum not less than the amount so bet, nor more than double the amount.® Wagering or betting on the event of an election, held under the constitution or laws of the United States, or the constitution or laws of this commonwealth, are hereby prohibited, and all contracts or promises founded thereon are declared to be entirely null and void.* 6 Act 24 March 1817 31. Purd. 734. The act 1Act 2 July 1839 3 115. Purd. 734. For form of indictment, see 8 W. 212. A bet on the result of an election in another state is not within the penal provisions of this act. 3 Pitts. 28. Nor is a wager on the result of a primary election. 17 W. N.C. 164. ? Act 2 July 1839 3116. Purd. 734. ’Tbid. 2117. It seems, that this section is in violation of the constitution. 59 Penn. St. 109, 112. It was so decided by Allison, P. J., in the common pleas of Philadelphia, in 2 Chest. Co. R. 355. So, an act which provided that an elector who had removed from his district, within ten days of the election, might vote in the district’ from which he had removed, was held to be unconstitutional. 1 Brewst. 103. ‘ This is a condition not a limitation; if the directors of the poor do not sue within two years, the losing party may recover back his de- posit from the stakeholder. 53 Penn. St. 138. But the record must show that the two years have expired. 26 Pitts. L. J. 85, 5 Aot 2 July 1839 3118. Purd. 734. was intended to avoid all bets, paid or unpaid, and to suppress anything connected with the subject : it cannot, therefore be eluded by an ap- pended agreement which would give to an actual wager the similitude of something else. 7 W. 343. Nor can ingenuity invent any mode of evidencing such a contract, so that it can be en- forced by law. 7 W. 294, Money deposited in the hands of a stakeholder cannot be recovered back, in a joint action by the contributors. 3 W. & 8.405. 2 Clark 128. And if paid to the win- ner, a creditor of the loser cannot recover it back by attachment. 6 W. &8S.485. Money lent in New Jersey, to be bet on the presidential elec- tion, may be recovered in Pennsylvania, in the absence of any proof that betting on election is against the law of New Jersey. 14 Penn. St. 18. A wager as to who will be the president of the United States, is a wager upon the event of an election. 3 Leg. & Ins. R. 18. See Bright. Elect. Cas. 728-37. And such bet is illegal, though made after the closing of the polls. 1 Chest. Co. R. 25. 396 ELECTIONS. XVI. PENALTIES FOR MISCONDUCT.” If the constables or supervisors of any township, ward or district, shall neglect or re- fuse to perform the duties herein required of him or them, they shall respectively, on conviction, be fined in any sum not less than fifty, nor more than one hundred dollars.” If any person elected to serve as inspector or judge as aforesaid, and having received due notice thereof, shall neglect or without good cause, refuse to attend on the day of election at the time appointed by law, he shall in every such case forfeit the sum of twenty dollars.* If any inspector, judge or clerk, as aforesaid, shall neglect or refuse to take upon himself the duties of such office, he shall forfeit and pay the sum of fifty dollars; or, having entered upon the same, shall afterwards neglect or refuse to perform the duties thereof, according to law, he shall forfeit and pay the sum of one hundred dollars for every such offence.* ; : If any inspector, judge or clerk of an election, shall presume to act in such capacity, before taking and subscribing the oath required by this act, he shall, on conviction, be finedsin any sum not less than fifty, nor more than two hundred dollars.° If any election officer or assessor of poll taxes shall become intoxicated during any of the time in which he shall be engaged in the performance of his duties, he shall, on conviction, be deemed guilty of a misdemeanor, and be sentenced to an imprisonment of thirty days, and to pay a fine of twenty dollars and the cost of prosecution, both or either, at the discretion of the court.® Tf any inspector, judge or clerk,” as aforesaid, shall be convicted of any wilful fraud in the discharge of his duties, as aforesaid, he shall undergo an imprisonment for any term not less than three, nor more than twelve months, and be fined in any sum not less than one hundred dollars, nor more than five hundred dollars, and shall be, for seven years thereafter, disabled from holding any office of honor, trust or profit in this commonwealth, and shall moreover be disabled, for the term aforesaid, from giving his vote at any general or special election within this commonwealth.® Tf any inspector or judge of an election shall knowingly reject the vote of any quali- fied citizen, or knowingly receive the vote of any person not qualified, or conceal from his fellow-officers any fact in the knowledge of which such vote should by law be re- ceived or rejected, each of the persons so offending, shall, on conviction, be punished in the manuer prescribed in the 107th section of this act.? If any such inspector or judge shall receive the vote of any person whose name shall not be returned on the list furnished by the commissioners or assessor, without first requiring the evidence directed in this act, the person so offending shall, on con- viction, be fined in any sum not less than fifty, nor more than two hundred dollars.” If any judge of an election, inspector, clerk or other persons, before the poll shall be closed, shall unfold, open or pry into any ticket, with a design to discover the name of any candidate therein, every person so offending shall, on conviction, be fined in any sum not less than fifty, nor more than one hundred dollars, and imprisoned for any time not less than one, nor more than three months.” If any person shall embezzle or unlawfully deface, alter, change, substitute or de- stroy any ticket, list of voters, tally-paper or certificate, taken or made at any election, aforesaid, he shall, on conviction, suffer imprisonment for a term not less than twelve months, nor more than three years, at the discretion of the court, and be fined in any sum not less than one hundred, nor more than one thousand dollars.” If any assessor shall intentionally neglect or refuse to assess any citizen of this com- monwealth, who is or shall be subject to assessment by law; or shall, in like manner, neglect or refuse to return the name of the person so assessed to the commissioners of the proper county ; or intentionally neglect or refuse to perform any other duty en- joined on him by the provisions of this act, he shall, on conviction thereof, be fined in apy sum not less than fifty, nor more than two hundred dollars." separate. 2 Pars. 480. See 2 Duvall 373. 1 See tit. “ Bribery.”’ Election frauds, the pun- ishment of which is not prescribed by statute are indictable at common law. 97 Penn, St, 397. Bright. Elect. Cas. 711, Purd, 494. 2 Act 2 July 1839 297. Purd. 493, 5 Thid. 2 99. 4 Thid. ¢ 100. 5 Thid. ¢ 101. 6 Act 19 May 1887. Purd. 494, | 7 The inspectors, judges and clerks cannot be joined in the same indictment, where the of- fences are different, and the duties distinct and 8 Act 2 July 1839 2 102. 9 Ibid. 2103. That is, by a fine of not less than $50, nor more than $200. The 98th, 107th and 109th sections of this act appear to be sup- plied and repealed by act 13 June 1840 3 15. 10 Act 2 July 1839 3104. Purd. 494. 11 Thid. 3 105. 12 Ibid. ¢ 106, 18 Thid, 3 108. ELECTIONS. 397 If any person shall prevent, or attempt to prevent, any officers of an election under this act, from holding such election, or use or threaten any violence to any such officer, or shall interrupt or improperly interfere with him in the execution of his duty; or shall block up or attempt to block up the window, or avenue to any window where the same may be holden; or shall riotously disturb the peace at such election; or shall use or practice any intimidation, threats, force or violence, with design’ to influence unduly, or overawe any elector, or to prevent him from voting, or to restrain the freedom of choice, such person, on conviction, shall be fined in any sum not exceeding five hundred dollars, and be imprisoned for any time not less than one nor more than twelve months. And if it shall be shown to the court, where the trial of such offence shall be had, that the person so offending was not a resident of the city, ward, district or township where the said offence was committed, and not entitled to vote therein, then, on conviction, he shall be sen- tenced to pay a fine not less than one hundred, nor more than one thousand dollars, and be imprisoned not less than six months, nor more than two years. If any person, not by law qualified, shall fraudulently vote at any election within this commonwealth, or being otherwise qualified, shall vote out of his proper dis- trict, or if any person, knowing the want of such qualification, shall aid or procure such person to vote, the person or persons so offending shall, on conviction, be fined in any sum not exceeding two hundred dollars, and be imprisoned for any term not exceeding three months.* If any person shall vote at more than one election district, or otherwise fraud- ulently vote more than once, on the same day, or shall fraudulently fold and deliver to the inspector two tickets together, with the intent to illegally vote, or shall vote the same, or if any person shall advise and procure another so to do, he or they so offending, shall, on conviction, be fined in any sum not less than fifty, nor more than five hundred dollars, and be imprisoned for any term not less than three, nor more than twelve months.‘ . If any person not a citizen of this commonwealth,® shall vote or attempt to vote, at any special, general or presidential election, held in this commonwealth, he shall be guilty of felony, and on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and undergo an imprisonment by separate or solitary confine- ment at labor, not less than two, nor more than five years.® If any person shall, through solicitation, invitation or device, persuade or prevail on any person, not a citizen of this commonwealth, to vote, or attempt to vote, at any special, general or presidential election in this commonwealth; or shall, by any means, aid, encourage or abet any such attempt; the person so offending shall be guilty of felony, and on conviction, shall be sentenced to pay a fine, not exceeding five hundred dollars,and undergo an imprisonment, by separate or solitary confinefment at labor, not less than two, nor more than five years.’ Any person who shall furnish or supply to any elector of this commonwealth, at any of the polls or voting places, any ballot or ticket falsely representing it to contain names not thereon, with the intent and purpose of defrauding said voter out of his expressed choice, shall be deemed guilty of a misdemeanor; and on conviction, shall pay a fine not to exceed one hundred dollars, or imprisonment not to exceed one year, one or both, or either, at discretion of the court: Provided, This act shall apply to both general and primary elections. If any person not qualified to vote in this commonwealth, agreeable to law (exeept the sons of qualified citizens), shall appear at any place of election, for the purpose of issuing tickets, or of influencing® the citizens qualified to vote, he shall, on conviction, forfeit and pay any sum not exceeding one hundred dollars for every such offence, and be imprisoned for any term not exceeding three months.” 1To constitute this offence, there must be a Hlect. Cas. 695. 7 Rhode [sland 349. 29 Cal. preconceived intention to intimidate the officers, 678. 3 Dutch. 105. or interrupt the election. 3 Y. 429. 4 Dall. 253. 7 Act 6 April 187637. Purd. 495. See Bright. ® Act 2 July 1839 3110. Purd. 494. Elect. Cas. 695. 25 Fed. Rep. 28. 5Tbid. 3119. See act 6 April 1870 2 6. . 8 Act 13 June 1883 31. Purd. 495. “Thid. 3 120. 9 It is not necessary, to complete the offence, 5 An attempt to vote illegally, by one who is that the party should have succeeded in his en- a citizen, is an indictable offence, 10 Phila. 211, deavors to induce others to vote. 3 Y. 65. Bee Purd. 487, pl. 58. 10 Act 2 July 1839 3121. Purd. 495. 6 Act 6 April 1870 2 6. Purd.495. See Bright. 398 ELECTIONS. Any person who shall unlawfully strike, wound or commit any assault and battery upon the person of any elector, at or near any election poll, during the holding of any election, shall be deemed guilty of a high misdemeanor, and upon convic- tion thereof, he shall be fined not less than one hundred dollars, or more than five hundred, and be imprisoned for a term not less than three months, or than one ear. si If any person shall, wilfully and corruptly, make or procure any person to make falsely any oath or affirmation, required or authorized by this act, such person shall suffer such penalties and disabilities as are incurred on conviction of wilful and corrupt perjury, or subornation of perjury.” If any person shall knowingly publish, utter or make use of any forged or false receipt or certificate, with intent to impose the same upon, or deceive, any inspector or judge, at any election as aforesaid, such person shall, on conviction, be fined in any sum not less than fifty, or more than five hundred dollars, and suffer imprison- ment not less than six months, nor more than two years. If any prothonotary or sheriff shall neglect or refuse to perform any of the duties hereinbefore enjoined upon him, or shall wilfully misbehave in the doing thereof, he shall, on conviction thereof, be fined in any sum not less than one hun- dred, nor exceeding five hundred dollars, and shall suffer imprisonment for a term not exceeding twelve months.* If any justice of the peace shall refuse to receive any ballot-box delivered to him, as is hereinbefore provided, or having received the same, shall neglect the safe- keeping thereof, he shall, on conviction of any such refusal or neglect, be fined in any sum not less than one hundred, nor more than one thousand dollars.’ Every specific fine or forfeiture imposed by this act, may be recovered by action of debt, in the name of the commonwealth, as debts of like amount are by law recoverable, or by indictment in the court of quarter sessions of the proper county; and where the fine and forfeiture is not specific, the proceeding shall be by indictment in the quarter sessions of the proper county: Provided, That all such suits and prosecutions shall be instituted within one year next after the cause thereof shall accrue, unless otherwise herein provided.® If any officer or officers required to perform any duty by the provisions of this act, shall neglect or refuse to perform the same, he or they, so offending, shall be considered and adjudged guilty of a misdemeanor in office, and shall, on conviction, be fined in any sum not less than twenty, nor more than two hundred dollars; and where the duties required of any officer herein named are the same as those required by the provisions of the act to which this is a supplement, the penalties inflicted by said act, for violation of such duty, be and the same are hereby extended to the duty herein required.” Whenever, in the investigation of any contested election, whether befare any committee of councils, any court of the city and county of Philadelphia, or com- mittee of the senate or house of representatives, or a joint committee thereof, it shall appear that in any election division of said city, the officers of election shall have wilfully received the votes of ten persons or upwards, whose names are not contained in the list of taxable inhabitants, furnished to the election officers of such division, by the city commissioners, withoué requiring proof of the pay- ment of taxes, citizenship and residence, which now are, or hereafter may be, required by law, such dereliction of duty shall be deemed a misdemeanor ; upon conviction whereof, the said officers of election shall be fined in a sum not exceed- ing one thousand dollars, and be imprisoned for a period not exceeding two years, (or) both or either, at the discretion of the court. It shall not be lawful for any political organization to parade through the streets . the a of Philadelphia after dark, within ten days next preceding any general election. VAct 6 April 1870 ¢ 9. Purd. 495, There Act 2 July 1839 3126. Purd. 495. must be proof that the party assaulted had a right to vote at that poll, in order to convict. 8 W.N. OC, 215. 2 Act 2 July 1839 3 124, Purd. 495. Phila, 594, § Ibid. 2 125. See 12 § Thid. 3 127, § Ibid. ¢ 128, 7 Act 13 June 1840 215. Purd. 495. See 38. Leg. Int. 269. 8 Act 17 April 1866 2 3. Purd. 496. ® Act 10 April 1867 3 1. Ibid. ELECTIONS. 399 Any person violating the provisions of this act, shall be liable to a penalty not exceeding fifty dollars, and an imprisonment not exceeding sixty days.! If any election officer shall refuse or neglect to require such proof of the right of suffrage as is prescribed by this law or the laws to which this is a supplement, from any person offering to vote, whose name is not on the list of assessed voters, or whose right to vote is challenged by any qualified voter present, and shall admit such person to vote, without requiring such proof, every person so offending shall, upon conviction, be guilty of a high misdemeanor, and shall be sentenced, for every such offence, to pay a fine, not exceeding one hundred dollars, or to undergo an imprisonment, not more than one year, or both, or either, at the discretion of the court.? If any prothonotary, clerk, or yhe deputy of either, or any other person, shall affix the seal of office to any naturalization paper, or permit the same to be affixed, or give out, or cause or permit the same to be given out, in blank, whereby it may be fraudulently used, or furnish a naturalization certificate to any person who shall not have been duly examined and sworn in open court, in the.presence of some of the judges thereof, according to the act of congress, or shall aid in, connive at, or in any way permit the issue of any fraudulent naturalization certificate, be shall be guilty of a high misdemeanor ; or if any one shall fraudulently use any such certifi- cate of naturalization, knowing that it was fraudulently issued, or shall vote, or attempt to vote thereon, or if any one shall vote, or attempt to vote, on any certifi- cate of naturalization not issued to him, he shall be guilty of a high misdemeanor ; and either or any of the persons, their aiders or abettors, guilty of either of the misdemeanors aforesaid, shall, on conviction, be fined in a sum not exceeding one thousand dollars, and imprisoned in the proper penitentiary for a period not exceed- ing three years.’ Any person who, on oath or affirmation, in or before any court in this state, or officer authorized to administer oaths, shall, to procure a certificate of naturaliza- tion, for himself or any other person, wilfully depose, declare or affirm any matter to be fact, knowing the same to be false, or shall, in like manner, deny any matter to oe fact, knowing the same to be true, shall be deemed guilty of perjury ; and any certificate of naturalization issued in pursuance of any such deposition, declaration or affirmation shall be null and void; and it shall be the duty of the court issuing the same, upon proof being made before it, that it was fraudulently obtained, to take immediate measures for recalling the same for cancellation. And any person who shall vote, or attempt to vote, on any paper so obtained, or who shall in any way aid in, connive at, or have any agency whatever in the issue, circulation or use of any fraudulent naturalization certificate, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall undergo an imprisonment in the penitentiary for not more than two years, and pay a fine not more than one thousand dollars for every such offence, or either, or both, at the discretion of the court.* Any assessor, election officer or person appointed as an overseer, who shall neglect, or refuse to perform any duty enjoined by this act, without reasonable or legal cause, shall be subject to a penalty of one hundred dollars ; and if any assessor shall assess any person as a voter who is not qualified, or shall refuse to assess any one who is qualified, he shall be guilty of a misdemeanor in office, and on conviction, be pun- ished by fine or imprisonment, and also be subject to an action for damages by the party aggrieved. And if any person shall fraudulently alter, add to, deface or destroy any list of voters, made out as directed by this act, or tear down or remove the same from the place where it has been fixed, with fraudulent or mischievous intent, or for any improper purpose, the person so offending shall be guilty of a high misdemeanor, and on conviction, shall be punished by a fine, not exceeding five hundred dollars, or imprisonment, not exceeding two years, or both, at the discretion of the court. The 1 Act 10 April 1867 322. Purd. 496. ? Aot 17 April 1869 46. Ibid. By 2138, it ia provided that none of the provisions of this act shall apply to the city of Philadelphia, except 22 12 and 13. But its provisions were re-en- acted, generally by the act 30 January 1874 3 12. See 105 Penn. St. 488. 1 Del. Co. R. 50. ¥ Act 17 April 1869 {2 12. Purd. 496, offences described in this and the succeeding sections are also punished by the laws of the United States, and jurisdiction thereof is con- ferred upon the federal courts. 1 Rev. Stat. 3% 5425-7. See 11 Wall. 88. 4 Act 17 April 1869 2 13. 5 Ibid. 3 14. Purd. 496. 400 ELECTIONS. If any person, upon any false representation, or by the production of any forged, false or spurious naturalization certificate, or upon any such certificate not duly issued according to the act of congress, shall cause his name to be placed, or shall attempt to have his name placed, upon any extra assessment list for election pur- poses, or upon any list of qualified electors authorized or required to be made by any law of this commonwealth, or shall vote or attempt to vote at any general or presidential election, every such person, on conviction thereof, shall be adjudged guilty of a high misdemeanor, and shall be sentenced to imprisonment in the jail of the proper county for a term not less than twelve months; and every person who shall aid or abet any other person in any such false representation or attempt shall, on conviction thereof, be adjudged guilty of a high misdemeanor, and suffer the like penalty.’ It shall not be lawful for any person or persons keeping a public-house or drink- ing-place, either licensed or unlicensed, to sell spirituous or malt liquors as a drink, to sell, furnish or give away, to be used as a drink, any spirituous or malt liquors, wine or any other intoxicating beverage, on any part of any day set apart, or to be set apart, for any general or special election, by the citizens in any election district or division within this commonwealth, where an election is in progress, during the hours when, by law, in said district, the election polls are required to be kept open? Any person violating any of the provisions of the first section of this act shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be subject to imprisonment in the jail of the proper county, for a term of not more than one hundred days; and in addition to the above, shall also be subject to a fine of not more than five hundred dollars and costs, at the discretion of the court.’ It shall be the duty of the constables of the several townships, wards and boroughs of this commonwealth, under the same penalty as mentioned in section 2d, to make returo to the next court of quarter sessions of the proper county, the name or names of any person or persons offending under the first section of this act: Pro- vided, Nothing herein shall prevent any other person or persons from prosecuting for such offence.‘ Any assessor, election officer or person appointed as an overseer, who shall neglect or refuse to perform any duty enjoined by this act, without reasonable or legal cause, shall be subject to a penalty of one hundred dollars; and if any assessor shall knowingly assess any person as a voter who is not qualified, or shall wilfully refuse to assess any one who is qualified, he shall be guilty of a misdemeanor in office, and on conviction be punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding two years, or both, at the discretion of the court, and also be subject to an action for damages by the party aggrieved. And if any person shall fraudulently alter, add td, deface or destroy any list of voters made out as directed by this act, or tear down or remove the same from the place where it has been fixed, with fraudulent or mischievous intent, or for any improper pur- pose, the person so offending shall be guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding five hundred dollars, or imprisonment not exceeding two years, or both, at the discretion of the court. And if any person shall, by violence or intimidation, drive, or attempt, to drive from the polls any person or persons appointed by the court to act as overseers of an election, or in any way wilfully prevent said overseers from performing the duties enjoined upon them by this act, such person shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or by im- prisonment not exceeding two years, or both, at the discretion of the court. Any person who shall, on the day of any election, visit a polling place in any election district at which he is not entitled to vote, and shall use any intimidation or violence for the purpose of preventing any officer of election from performing the duties required of him by law, or for the purpose of preventing any qualified voter of such district exercising his right to vote, or from exercising his right to challenge any person offering to vote, such person shall be deemed guilty of a mis- demeanor, and upon conviction thereof shall be punished by a fine not exceeding 1 Act 17 April 1869 2 38. Purd. 497. See 2 5 Act 13 March 1872 @ 2. « Brewst. 145-6. 4 Thid. 2 3. 2 Act 13 March 1872 31. Ibid. ELECTIONS. 401 one thousand dollars, or by imprisonment not exceeding two years, or both, at the discretion of the court, Any clerk, overseer or election officer, who shall disclose how any elector shall have voted, unless required to do soas a witness in a judicial proceeding, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding two years, or both, in the discretion of the court. If any prothonotary, clerk, or the deputy of either, or any other person, shall affix the seal of any court to any naturalization paper, or permit the same to be affixed, or give out, or cause or permit such naturalization paper to be given out, in blank, whereby it ‘may be fraudulently used, or furnish a naturalization certificate to any person who shall not have béen duly examined and sworn in open court, in the presence of some of the judges thereof, according to the act of congress, or shall aid in, connive at, or in any way permit the issue of any fraudulent natural - ization certificate, he shall be guilty of a misdemeanor; or if any one shall fraudulently use any such certificate of naturalization, knowing that it was fraud- ulently issued, or shall vote or attempt to vote thereon, or if any one shall vote or attempt to vote on any certificate of naturalization not issued to him, he shall be guilty of misdemeanor; and either or any of the persons, their aiders or abettors, found guilty of either of the misdemeanors aforesaid, shall be fined in a sum not exceeding one thousand dollars, and imprisoned in the proper penitentiary for a period not exceeding three years.” Any person who, on oath or affirmation, in or before any court in this state, or officer authorized to administer oaths, shall, to procure a certificate of natural- ization for himself or any other person, wilfully depose, declare or affirm any matter to be fact, knowing the same to be false, or shall in like manner deny any matter to be fact, knowing the same to be true, shall be deemed guilty of perjury; and any certificate of naturalization issued in pursuance of any such deposition, declaration or affirmation, shall be null and void; and it shall be the duty of the court issuing the same, upon proof being made before it that it was fraudulently obtained, to take immediate measures for recalling the same for can- cellation. And any person who shall vote or attempt to vote on any paper so obtained, or who shall in any way aid in, connive at, or have any agency whatever in the issue, circulation or use of any fraudulent naturalization certificate, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall undergo an imprisonment in the penitentiary for not more than two years, and pay a fine not more than one thousand dollars, for every such offence, or either, or both, at the discretion of the court.’ No person who shall hereafter be a candidate for the nomination, or for election to the senate or house of representatives, or to any office of the judiciary, or to any state, municipal or county office in this commonwealth, shall pay or contribute, either directly or indirectly, any money or other valuable thing, or knowingly allow it to be done by others for him, either for the nomination, election or appointment, except necessary expenses as follows, to wit: I. For printing and travelling expenses. II. For dissemination of information to the public. III. For political meetings, demonstrations and conventions.* The foregoing expenses may be incurred, either in person, or through other individuals or committees of organizations duly constituted for the purpose, but nothing contained in this act shall be so construed as to authorize the payment of money or other valuable thing for the vote or influence of any elector, either directly or indirectly, at primary, township, general or special elections, nominat- ing conventions, or for any corrupt purposes whatever incident to an election. And all judicial, state, county and municipal officers hereafter elected shall, before entering upon the duties of their respective offices, take and subscribe the oath prescribed by section first, of article seven, of the constitution of this com- monwealth5 , Every person violating either of the provisions of this act shall be guilty of a 1 Act 30 January 1874 219. Purd. 497. 4 See 91 Penn. St. 493. 2 Kulp 21. 11 Daly 2 Thid. 2 20. 354. § Ibid. 2 21. 96 5 Act 18 April 1874 31. Purd. 498. 402 ELECTIONS. misdemeanor, and on conviction, shall be subject to a fine not exceeding one thou- sand dollars, and to imprisonment not exceeding one year, or both, or either, at the discretion of the court." at It shall be unlawful for any committee, or member thereof, directly or indirectly, to demand of any public officer, subordinate or employee, holding any office or posi- tion of honor, trust or profit in this commonwealth, or otherwise engaged or employed in the service of this state, or from any officer, subordinate or employee, in any way engaged or employed in the service of any city or county of this state, any assess- ment or per-centage of any money, property or their equivalent in anything of value, with the understanding, either expressed or implied, that the same may or shall be used for any political purpose whatsoever.’ , ; Any person or persons violating any of the foregoing provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not to exceed one hundred dollars.’ : If a candidate for any office within this commonwealth shall, directly or indirectly, give, offer or promise to give, or procure any other person to give, offer or promise to give, to any elector, any gift or reward in money, goods or other valuable thing, or any security for the payment or the delivery of money, goods or other valuable thing, or any office, emolument or employment, on condition, express or implied, that such elector shall cast, give, retain or withhold his vote, or use his influence at a nominating election or delegate election, or cast, give or substitute another to east or give, his vote or use his influence at a nominating convention, for or against the nomination of any particular candidate for nomination, so as to procure such person to be voted for, at any election to take place, the person so hiring, procuring, influencing, abetting, endeavoring or offering, either directly, or indirectly through others, their aiders or abetters, to procure the person to be voted for by such elee- tors, shall be guilty of a misdemeanor, and, on conviction, shall be sentenced to pay a fine not exceeding three hundred dollars, and be imprisoned for a period not exceeding three months.* If any elector, authorized to vote at any public election afterwards to take place within this commonwealth, for any office, shall, directly or indirectly, accept or receive from any person desiring to be nominated as a candidate for office, or from the friends of any such person, any gift or reward in money, goods or other valuable thing, or any office or employment, under an agreement or promise, express or implied, that such elector shall give or withhold his vote for the nomination of such a person as a candidate for office at such election, or shall accept or receive the promise of any person, that he shall thereafter receive any gift or reward ic money, goods, position or other valuable thing, if he will vote for the nomination of such a person as a candidate for office, and shall thereafter vote for the nomination of such person, he shall be guilty of a misdemeanor, and on conviction shall pay a fine, not exceeding three hundred dollars, and be imprisoned for a term of time not exceeding three months.® If any elector shall, directly or indirectly, offer to give his vote or his influence, at any nominating election, delegate election or nominating convention, to any per- son desiring to be nominated as a candidate for office, or to the friends of any such person, in consideration, that for such vote or influence, he is to receive any gift or reward in money, goods or other valuable thing, or any office or employment, he shall be guilty of a misdemeanor, and on conviction shall pay a fine, not exceed- ing three hundred dollars, and undergo a period of imprisonment not exceeding three months.® If any person, not qualified to vote at a general election, shall vote at a nominat- ing election held by any political party, or if any person shall procure, advise or induce such disqualified person to so vote, or if any person shall vote at more than one election district, or otherwise vote more than once on the same for the nom- ination of a candidate, or shall fraudulently vote more than one ticket for the same candidate, at the same time, or if any person shall advise or procure another so to do, he or they shall be guilty of a misdemeanor, and on conviction, shall be 4 Aot 18 April 1874 3 2. Purd. 498, inours a disqualification for holding any office of 2 Act 13 June 1883 ¢ 1. Ibid. trust or profit under the commonwealth under art, 3 Ibid. 2 2, VIII. 3 9 of the constitution. i7 W. N. C. 481. 4 Act 8 June 188] 31. Purd. 481, 6 Act 8 June 1881 3 8. Purd. 481. 5 Ibid. @ 2. The defendant, on conviction, t ELECTIONS. 403 fined, not exceeding the sum of two hundred dollars, and imprisoned for a term of time not exceeding three months. In all cases where a person is elected or chosen, or shall act as a delegate to a convention to make nominations for offices, and shall receive, accept or solicit any bribe in money, goods or thing of value, or any office or position, as an inducement to make or join in any nomination for any person to be voted for as an officer or candidate for office, or shall, in like manner and for like reason, agree to abstain from voting for any particular person, shall be guilty of a misdemeanor, and on conviction, shall be sentenced to pay a fine of not more than one hundred dollars, and be imprisoned not exceeding three months.? Any person, elected, chosen or acting as a member of the county or executive committee of any party, or as a judge of a return-board to count up and cast the votes polled at a primary election, held to make nominations for office, or any person appointed a clerk of such return-board, who shall directly or indirectly accept, receive or solicit money, office, appointment, employment, testimonial, reward or other thing of value, or the promise of all or either of them to influ- ence his vote or action in the discharge, performance or non-performance of any act, duty or obligation pertaining to such office, shall be guilty of a misde- meanor, and on conviction thereof, shall be sentenced to pay a fine of not more than one hundred dollars, and be imprisoned for a time not exceeding three months, Any person or persons who shall directly or indirectly by offer or promise of money, office, appointment, employment, testimonial, reward or other thing of value, or who shall, by threats or intimidation, endeavor to influence a member of a county or executive committee of any party, a judge or clerk of any return-board, in the discharge, performance or non-performance of any act, duty or obligation pertain- ing to such office, shall be guilty of a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine of two hundred dollars, and to undergo an im- prisonment not exceeding six months.* A voter who shall allow his ballot to be seen by any person with an apparent inten- tion of letting it be known how he is about to vote, or shall cast or attempt to cast any other ballot than the official ballot which has been given to him by the proper election officer, or shall falsely declare to a judge of election that by reason of any disability he desires assistance in the preparation of his ballot, or shall wilfully violate any other provision of this act, or any person who shall interfere with any voter when inside said inclosed space, or when marking his ballot, or who shall endeavor to induce any voter before depositing his ballot to show how he marks or has marked his ballot, or who shall disclose the contents of any ballot that has been marked by his help, or who, except when lawfully commanded by a return-judge or a competent court, shall loosen, cut or unfasten the corner pasted down over the number on any ballot, shall be guilty of a misdemeanor, and upon conviction shall be sentenced to pay a fine not ex- ceeding one hundred dollars, or to undergo an imprisonment for not more than three months, or both, at the discretion of the court.* Any person who shall, prior to an election, wilfully deface or destroy any list of candidates, posted in accordance with the provisions of this act, or who, during an election, shall wilfully deface, tear down, remove or destroy any card of instruction, or specimen ballot, printed or posted for the instruction of voters, or who shall, during an election, wilfully remove or destroy any of the supplies or conveniences furnished to enable a voter to prepare his ballot, or shall wilfully hinder the voting of others, shall be guilty of a misdemeanor, and upon conviction shall be sentenced to pay a fine not exceeding one hundred dollars, or to undergo an imprisonment for not more than three months, or both, at the discretion of the court.® Any person who shall falsely make or wilfully deface or destroy any certificate of nomination, or nomination paper, or any part thereof, or any letter of withdrawal, or file any certificate of nomination, or nomination paper, or letter of withdrawal, know- ing the same or any part thereof to be falsely made, or suppress any certificate of nomination, or nomination paper, or any part thereof which has been duly filed, or 1 Act 8 June 18813 4. Purd. 481. 4 Act 10 June 1893 3 30. Purd. 748. 2 Ibid. 3 5. § Ibid. 2 31. ® Ibid. @ 6. 404 ELECTIONS. forge, or falsely make the official indorsement on any ballot, or wilfully destroy or de- face any ballot, or wilfully delay the delivery of any ballots, shall be guilty of a misde- meanor, and upon conviction shall be sentenced to pay a fine not exceeding one thou- sand .dollars, or to undergo an imprisonment for not more than one year, or both, at the discretion of the court.? Any public officer upon whom a duty is imposed by this act, who shall negligently or wilfully fail to perform such duty, or who shall negligently or wilfully perform it in such a way as to hinder the objects of this acts, or who shall negligently or wilfully violate any of the provisions thereof, shall be guilty of a misdemeanor, and upon con- viction shall be sentenced to pay a fine not exceeding one thousand dollars, or to un- dergo an imprisonment for not more than one year, or both, at the discretion of the court.” Any printer employed by the commissioners of any county to print any official ballots, or any person engaged in printing the same, who shall appropriate to himself, or give or deliver or knowingly permit to be taken any of said ballots by any other person than such commissioners, or their duly authorized agent, or shall wilfully print, or cause to be printed any official ballot in any other form than that prescribed by such commissioners, or with any other names thereon, or with the names spelled otherwise than as directed by them, or the names or printing thereon arrranged in any other way than that authorized and directed by this act, shall be guilty of a mis- demeanor, and upon conviction shall be sentenced to pay a fine not exceeding one thousand dollars, or to undergo an imprisonment for not more than five years, or both, at the discretion of the court.? Any person other than an officer charged by law with the care of ballots, or a person entrusted by any such officer with the care of the same for a purpose required by law, who shall have in his possession outside the voting room any official ballot, or any person who shall make or have in possession any counterfeit or an official ballot, shall be guilty of a misdemeanor, and upon conviction shall be sentenced to pay a fine not exceeding one thousand dollars, or to undergo an imprisonment for not more than one year, or both, at the discretion of the court.* XVII. MiscELLANEOUS PROVISIONS. It shall be lawful for the governor of this commonwealth, on the representation of the commonwealth, or of the municipal authority of any city or borough, town or in- corporated district in this commonwealth, that from the prevalence of any malignant or contagious disease, in such city, borough, town or district, the lives of the electors may be in danger by attending at the places fixed by law for holding elections within the same, to direct the sheriff of the proper county to give notice that the election for such city, borough, town or district, will be held at such place within the limits, or in the neighborhood of the same, as he, the governor may judge most safe and conve- nient; and it shall be the duty of such sheriff to give public notice of such place, in the manner hereinbefore required, at least seven days before the day of election, under the same penalty as hereinafter provided.® No body of troops in the army of the United States, or of this commonwealth, shall be present, either armed or unarmed, at any place of election within this common- wealth, during the time of such election: Provided, That nothing herein contained shall be so construed as to prevent any officer or soldier, from exercising the right of suffrage in the election district to which he may belong, if otherwise qualified accord- ing to law.® In all cases where a sheriff is directed to perform any duty by the provisions of this act, and said sheriff is absent from the district, or there is any vacancy in said office, the duty directed to be performed by the sheriff, shall be done and performed by the coroner of the proper county, who shall be entitled to the same fees and subject to like penalties.’ The assessors shall each receive the same compensation for the time necesarily " Thid. 2 32. § Act 2 July 1839 3.95. Purd. 727. And see : tae og 1 Rev. Stat. U.S. 3 2002. Bright. Elect. Cas. id. ci 603. 4 Thid. ¢ 35. T Act 2 July 1839 3 96. Purd. 728. 5 Act July 1839 394. Purd. 726. EMBANKMENTS, 405 spent in performing the duties hereby enjoined, as is provided by law to assessors making valuations, to be paid by the county commissioners, as in other cases: and it shall not be lawful for any assessor to assess a tax against any person whatever within sixty-one days next preceding the annual election in November; any violation of this provision shall be a misdemeanor, and subject the officer so offending to a fine, on conviction, not exceeding one hundred dollars, or to imprisonment not exceeding three months, or both, at the discretion of the court.! The assessors directed to be appointed and elected by the 14th and 15th sections of the act, approved the 30th day of January, Anno Domini 1874, are hereby declared to be assessors only to perform such duties as are now required by law of assessors, incident to the holding of elections and registration of voters; and that the office of assessor for purposes of valuation with all the duties incident thereto shall continue and remain as now provided for by law: Provided, That in townships, boroughs and wards composing but one election district, the assessors for purposes of valuation shall be assessors for the holding of elections and the registration of voters.” The commissioners of the several counties of this commonwealth, are hereby author- ized and empowered to fix the compensation for lights, rent and fuel for election pur- poses, in each and every township, borough, ward and election district in the respec- tive counties; which said compensation shall be fixed and established at least once every three years, by resolution duly entered upon the minutes of said commissioners ; and the said expenses shall be paid by said respective counties, according to the com- pensation so ascertained and entered upon said minutes, and not otherwise. All the duties imposed by this act upon county commissioners, shall be performed, in the city of Philadelphia, by the city commissioners.* All funds arising from fines imposed and collected in pursuance of the foregoing sec- tions, shall be applied to the common schools of the county in which said fines may have been collected, and to be apportioned among the several school districts accord- ing to the population thereof.® ' XVIII. NoMINATIONS TO OFFICE—BALLOTS—BOOTHS. The provisions of the act 10th June 1893 relating to nominations to office, to the preparation and casting of ballots and the arrangement of election rooms or booths will be found set forth at large in Brightly’s Purdon’s Digest, pages 737-743. Embankments. Acr 19 May 1879. Purd. 521. Sect. 1. Any person or persons who shall maliciously, after the passage of this act, break down, destroy or remove, or in any manner whatsoever injure, impair or damage, in whole or in part, any rip-rap wall, dam, bank or breakwater, built or formed or composed of stone, cinders or other materials, along property fronting or abutting on any river or stream within this commonwealth, or who shall remove, carry away or tear up any stones, cinders or other materials of which such rip-rap wall, dam, bank or breakwater shall be in whole or in part composed, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof in the court of quarter ses- sions of the county in which the offence shall have been committed, be fined, for each offence, not exceeding two hundred dollars, or imprisonment, in the county jail or workhouse, not exceeding six months: Provided, That prosecutions under this act shall be begun within two years from the time of the commission of the offence: And provided further, That the provisions of this act shall not apply to counties having a population of over five hundred thousand inhabitants. 1 Act 30 January 1874 218. Purd. 721. 4 Act 30 January 1874 3 24. Purd. 732. ? Act 13 February 187431. Ibid. 5 Ibid. 2 25. 5 Act 8 May 1876 @ 1. [ 406 J Canbeszlement, I. Provisions of the Penal Code. IL. Judicial decisiors. I. PRovVISIONS OF THE PENAL CODE. Ip any officer of this commonwealth, or of any city, borough, county or township thereof, shall loan out, with or without interest or return therefor, any money or valuable security received by him, or which may be in his possession, or under his control, by virtue of his office, he shall be guilty of a misdemeanor in office, and on conviction be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceed- ing five years; and if still in office, be adjudged thereafter incapable of exercising the same, and the said office shall be forthwith declared vacant by the court passing the sentence.’ If any such officer shall enter into any contract or agreement with any bank, cor- poration or individual, or association of individuals, by which said officer is to derive any benefit, gain or advantage from the deposit with such bank, corporation, or indi- vidual, or association, of any money or valuable security held by him, or which may be in his possession, or under his control, by virtue of his said office, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceed- ing one thousand dollars, and to undergo an imprisonment not exceeding one year; and if still in office, be adjudged thereafter incapable of exercising the same, and the said office shall be forthwith declared vacant by the court passing sentence.” If any state, county, township or municipal officer of this commonwealth, charged with the collection, safe-keeping, transfer or disbursement of public money, shall convert to his own use, in any way whatsoever, or shall use, by way of investment, in any kind of property or merchandise, any portion of the public money intrusted to him for collection, safe-keeping, transfer or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the state, county or township treasurer, or other proper officer or person authorized to demand and receive the same—every such act shall be deemed and adjudged to be an embezzlement of so much of said money as shall be thus taken, converted, invested, used or unaccounted for, which is hereby declared a misdemeanor; and every such officer, and every person or persons whomsoever aiding or abetting, or being in any way accessory to said act, and being thereof convicted, shall be sen- tenced to an imprisonment, by separate or solitary confinement at labor, not exceeding five years, and to pay a fine equal to the amount of the money embezzled? If any person, being a trustee of any property for the benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purpose, or the use or benefit of any other person, or shall, with intent aforesaid, otherwise dispose of or destroy such property, or any part thereof, he shall be guilty of a misdemeanor.‘ If any person, being a banker, broker, attorney, merchant or agent, and being intrusted, for safe custody, with the property of any other person, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate to or for his own use, or the use of any other person, such property, or any part thereof, he shall be guilty of a misdemeanor. If any person intrusted with any power of attorney, for the sale or transfer of any property, shall fraudulently sell or transfer, or otherwise convert such property, or any part thereof, to his own use or benefit, or the use or benefit of any other person, he shall be guilty of a misdemeanor.® If any person, being an officer, director, superintendent, manager, receiver, em 1 Act 31 March 1860 3 62. Purd. 532. 4 Act 31 March 1860 3118. Purd. 499. 4 Thid. @ 63. 5 Ibid. 114. See 49 Penn. St. 478. 3 Tbid, 2 65. Purd. 500, § Ibid. ¢ 115. EMBEZZLEMENT. A407 ployee, agent, attorney, broker, or member of any bank or other body corporate, or public company, municipal or guast municipal corporation, shall fraudulently take, | convert or apply to his own use, or the use of any other person, any of the money or other property of such bank, body corporate or company, municipal or quasé municipal corporation or association, or belonging to any person or persons, corpora- tion or association, and deposited therein, or in possession thereof, he shall be guilty of a misdemeanor.’ If any person, being an officer, director, superintendent, manager, receiver, em- ployee, agent, attorney, broker, or member of any body corporate or public com- pany, or municipal or guast municipal corporation, shall, as such, receive or possess himself of any money or other property of such corporate or public company, municipal or guast municipal corporation, otherwise than in payment to him of a just debt or demand, and shall, with intent to defraud, omit to make, or cause or direct to be made, a full and true entry thereof in the books and accounts of such body corporate, public company, municipal or guast municipal corporation, he shall be guilty of a misdemeanor? If any officer, director, superintendent, manager, receiver, employee, agent, attorney, broker, or member of any bank, or other body corporate or public com- pany, municipal or quasi municipal corporation, shall, with intent to defraud, destroy, alter, mutilate or falsify any of the books, papers, writings or securities belonging to the bank, body corporate or public company, municipal or guast muni- cipal corporation, of which he is a director, officer, superintendent, manager, receiver, employee, agent, attorney, broker or member, or shall make or concur in the making of any false entry, or any material omission, in any book of accounts or other document, he shall be guilty of a misdemeanor If any officer, director, superintendent, manager, receiver, employee, agent, attorney, broker, or member of any bank, or other body corporate or public com- pany, municipal or guasi municipal corporation, shall make, circulate or publish, or concur in making, circulating or publishing, any written or printed state- ment or account, which he shall know to be false in any particular, with intent to deceive or defraud any member, shareholder or creditor of such body corporate or public company, municipal or guas? municipal corporation, or with intent to induce any person to become a shareholder or partner therein, or to interest or advance any money or property to such body corporate or public company, or to enter into any security for the benefit thereof, (he) shall be guilty of a misdemeanor. Every person found guilty of a misdemeanor under any or either of the pre- ceding sections of this title, wherein the nature and extent of the punishment is not specified, shall be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding six years.® If any person shall receive any money, chattel or valuable security which shall have been so fraudulently disposed of, as to render the party disposing thereof guilty of a misdemeanor, knowing the same to have been so fraudulently disposed of, he shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the party guilty of the principal misdemeanor shall, or not, have been previously convicted. Every person found guilty of a misdemeanor under either of the preceding sections of this title, wherein the nature and extent of the punishment is not specified, shall be sentenced to an imprisonment, not exceeding two years, or be fined in any amount not exceeding one thousand dollars, or both, or either, at the discretion of the court. Nothing herein contained shall affect any remedy at law or in equity, which any party aggrieved might have heretofore had, nor affect or prejudice any agreement 1 Act 12 June 1878 31. Purd. 499. the defect in the original act pointed out in 81 2Tbid. 22. Purd. 509. Penn. St. 389. The 121st section, however, pre- 3Tbid. ¢ 3. Purd. 524. scribes the punishment of other offences than ‘Ibid. ¢ 4. Purd. 509. those embraced in the 5th section of the revised 5Tbid. 35. This act isan amendment of the act. 116th, 117th, 118th, 119th and 12st sections of © Act 31 March 18604120. Purd. 536. the act 31 March 1860. It was passed to remedy T Ibid. 2121. 408 EMBEZZLEMENL. entered into, or security given, by any trustee, having for its object the restoration or repayment of any trust property misappropriated.* p No such trustee, banker, merchant, broker, attorney, agent, director, officer or member as aforesaid, shall be enabled or entitled to refuse to make a full and com- plete discovery by answer to any bill in equity, or to answer any question or interrogatory in any civil proceeding in avy court of law or equity; but no answer to any such bill, question or interrogatory, shall be admissible in evidence against such person charged with any of the said misdemeanors.’ The word “trustee” herein shall mean a trustee on some express trust created by deed, will or instrument in writing, and shall also include the heir, devisee and personal representative of any such trustee, and all executors, administrators and assignees; the word ‘ property” shall include every description of real and personal property, money, debts and legacies, and all deeds and instruments relating or evidencing the title or right to recover or receive any money or goods; and shall also include not only such property as may have been the original subject of a trust, but any property in which the same may have been converted, and the pro- ceeds thereof, respectively, or anything acquired by such proceeds.’ The 124th section of the act to which this is a supplement, shall also extend to and include any guardian or guardians of a minor child or children, appointed by the orphans’ court of the respective counties, in the same manner as executors, adminis- trators and assignees.* If any consignee or factor having the possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certificate, receipt or order for the delivery of merchandise, with the like authority, shall deposit or pledge such merchandise or document, consigned or intrusted to him as aforesaid, as a security for any money borrowed, or negotiable instrument received by such consignee or factor, and shall apply or dispose of the same to his own use, in violation of good faith, with intent to defraud the owner of such merchandise, and if any consignee or factor shall, with like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument, raised or acquired by the sale or other disposition of such merchandise, such consignee or factor in every such case, shall be guilty of a misdemeanor and sentenced to pay a fine, not exceeding two thousand dollars, and undergo an imprisonment. not exceeding five years.° If any person engaged in carrying or transporting coal, iron, lumber or other articles of merchandise, or property whatsoever, within this commonwealth, shall fraudulently sell or dispose of, or pledge the same, or any part thereof, without the consent of the owner thereof, such offence shall be deemed a misdemeanor, and the offender shall, on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment not exceeding one year; or if any person shall knowingly buy and receive the said merchandise, knowing the same to have been sold, disposed of, or pledged fraudulently, he shall, on conviction, be sentenced to the like punishment.® Whenever any person in the employ of any railroad company, whether such com- pany is incorporated by this or any other state, shall fraudulently neglect to cancel or return to the proper officer, company or agent, any coupon or other railroad ticket, with the intent to permit the same to be used in fraud or injury of any such company ; or if any person shall steal or embezzle any such coupon or other railroad ticket, or shall fraudulently stamp or print, or sign any such ticket, or shall fraudulently sell or put in circulation any such ticket—any person so offending, shall, upon conviction thereof, be sentenced to pay a fine, not exceeding one thousand dollars, and to un- dergo an imprisonment, by separate or solitary confinement, at labor, not exceeding five years.” Every president, director, cashier, teller, clerk or agent of any bank who shall embezzle, abstract or wilfully misapply any of the moneys, funds or credits of such bank, or shall fraudulently and without authority from the directors, issue or put in circulation any of the notes of such bank, or shall, without such authority, 1 Act 31 March 1860 3 122, Purd. 499. 4 Act 22 April 1863 21. Purd. 500. 2Thid. 2123. See 1T.&H.Pr.Z124, 10 6 Act 31 March 1860 2 125. Phila. 50. 6 Thid. 3 126, 8 Ibid. 9124, Purd. 499. 7 Anat 1 Maw 188121. Pnrd A223. EMBEZZLEMENT. 409 fraudulently issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, sign any note, bond, draft, bill of exchange, mort- gage or other instrument of writing, or shall make any false entry on any book, report or statement of the bank, with an intent, in either case, to injure or defraud such bank, or to injure or defraud any other company, body corporate or politic, or any individual person, or to deceive any officer or agent appointed to inspect the affairs of any bank, shall be guilty of a misdemeanor ; and upon conviction thereof, shall be confined in the penitentiary, at hard labor, not less than one, nor more than ten years.! If any director, officer, agent or other person connected with, or doing business for or with, any of said (insurance) companies, shall fraudulently embezzle or appro- priate to his own use, or the use of any other person or persons, any money or other property belonging to the said institution, or left with or held by the said company, in trust, as a special deposit or otherwise, he or they, on conviction thereof, shall be fined in a sum not less than the amount so appropriated or embez- zled, and sentenced to undergo an imprisonment in the penitentiary, in separate and solitary confinement, at labor, for a term not exceeding five years, at the dis- cretion of the court: Provided, That this shall not prevent any person aggrieved from pursuing his, her or their civil remedy against such person or persons.’ If any director, officer, agent or other person connected with or doing business for or with any fire, marine, or life insurance company, trust or annuity company, or any health or casualty insurance company, or any company for the insurance of horses, mules, cattle and live-stock, incorporated by the state of Pennsylvania, or any other state of the United States, or by any foreign government, or organized under the laws of any state or foreign government which has complied with the insurance laws of this commonwealth, shall fraudulently embezzle or appropriate to his own use, or the use of any other person or persons, any money or other property belonging to such company or companies, or left with or held by such company or companies in trust, as a special deposit or otherwise, he or they, on conviction thereof, shall be fined in a sum not exceeding nor less than the amount 80 appropriated or embezzled, and sentenced to undergo an imprisonment in the penitentiary for a term not exceeding five years, or both such fine and imprison- ment, at the discretion of the court. And in the indictment and trial of any case under this act, it shall not be necessary, in order to establish a prima facie case for the commonwealth, to set forth or prove the incorporation or organization of any such company or companies, except by the verbal testimony of any competent witness.3 If any person charged with the collection, safe-keeping, or transfer of any state, county, township, school, city, borough, or municipal taxes, under any law or laws of this commonwealth, shall convert or appropriate the moneys so collected, or any part thereof, to his own use, in any way whatever, or shall use by way of invest- ment in any kind of property or merchandise any portion of the money so collected by him from such tax or taxes, and shall prove a defaulter or fail to pay over the same or any part thereof at the time or times, place or places, required by law and to the person or persons legally authorized to demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement of so much of said money as shall be thus taken, converted, appropriated, embezzled, invested, used, or unaccounted for, which is hereby declared a misdemeanor; and every such tax- _ collector, and every person or persous whomsoever aiding, or abetting, or being in any way accessory to such act, and, being thereof convicted, shall be sentenced to an imprisonment not exceeding five years, or to pay a fine not exceeding five thousand dollars, or both, at the discretion of the court.* IL. The treasurer of a school district is indictable for the embezzlement of the public funds, under the 65th section of the penal code.® And the 107th section embraces the case of a conductor employed by a railroad company.® So, a priest who receives money for his.church, and appropriates it to his own use, may be 1 Act 1 May 1861 3 36. Purd. 500. # Act 3 June 188531. Purd. 501. 2 Act 11 April 1862 21. Ibid. 5 86 Penn. St. 416. 8 Act 17 June 1878 31. Ibid. 6 2 Pears. 432. ’ A10 EMBRACERY. indicted for embezzlement, as an agent.1 And a clerk in the employment of the gas trustees of Philadelphia is an employee of a municipal corporation who may be convicted of embezzlement under the act of 1878.2. And so also the treasurer of an unincorporated beneficial association, though a member, may be indicted, as a servant, for the embezzlement of the funds received by him.’ An auctioneer may be convicted of embezzlement, though time was given him, and the sales were made in the presence of his consignor.* Embezzlement, however, necessarily involves secrecy and concealment: if, there- fore, instead of denying the appropriation of property, the defendant, in rendering his account, admit the appropriation, alleging a right in himself, no matter how unfounded, or set up an excuse, no matter how frivolous, his offence in taking and keeping is no embezzlement. Embezzlement by a cashier of a national bank is not indictable under the state law ; it is only punishable under the act of congress.® Any number of distinct acts of embezzlement, not exceeding three, may be charged in the same ‘count, where they are alleged to have been committed within six months of one another.” But one indictment charging in a single count the embezzlement of divers sums of money, received from divers persons, amounting in the whole to $1200, is bad for duplicity, and will be quashed, on motion.® Gimbracery, I. Provisions of the Penal Code. II. Judicial decisions. Act 31 Marca 1860. Purd. 543, 501. Sot. 11. If any person shall unlawfully dissuade, hinder, prevent or attempt to dissuade, hinder or prevent any witness from attending and testifying, who may have been required to attend and testify either before any committee of the legis- lature of this state, or before any civil or criminal court, judge, justice or other judicial tribunal thereof, by virtue of any writ of subpena or other legal process, or who may have been recognised to attend as a witness on behalf of the common- wealth or of any defendant, before any court having jurisdiction, to testify in any case depending or about to be tried in such court—any person so offending shail be guilty of a misdemeanor, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding one year. Szor. 12. If any person shall attempt to corrupt or influence any juror in a criminal or civil court, or any arbitrator appointed according to law, by endeavor- ing, either in conversation or by written communication, or by persuasion, promises or entreaties, or by any other private means, to bias the mind or judgment of such juror or arbitrator, as to any cause pending in the court to which such juror has been summoned, or in which such arbitrator has been appointed or chosen, except by the strength of evidence or the arguments of himself or his counsel during the trial or hearing of the case; he shall be guilty of a misdemeanor, and, on convie- tion, be sentenced to pay a fine not exceeding five hundred dollars, or suffer an imprisonment not exceeding one year, or both, or either, at the discretion of the court, II. Embracery (which is usually classed under the head of bribery) is an attempt by either party, or a stranger, to corrupt or influence a jury, or to incline them to favor one side, by gifts or promises, threats or persuasions, or by instructing them in the cause, or any other way, except by opening and enforcing the evidence by counsel or otherwise at the trial, whether the jurors gave a verdict or not, and whether the verdict be true or false? 1 11 Phila. 374, 397. 6 92 Penn. St. 372. 241 Leg. Int. 134. 42 Ibid. 288. 7 2 Wood. 477. 314 W.N. C. 288. See 2 Leg. Opin. 3. 8 1 Kulp 134. 4 8 Phila. 613. 9 5 Cow. 504. 1 Phila. 534, Lewis’ Cr. L. 12% 6 Oar. & M. 501. ENGROSSING, &. ; All Writing a letter to the sheriff, by an agent of a party, in the name of the party, requesting him to summon the agent and two others, all of whom were named, for the trial of the cause, is an indictable offence, although not accompanied with any offer of a bribe. It is both a criminal misdemeanor aud a high contempt in an individual, to com- municate with a grand jury in reference to any matter which is, or may come before them.? It is a gross misbehavior for any person to speak to a juryman, or fora juryman to permit any person to converse with him respecting the cause he is trying, at any time after he is summoned, and before the verdict is delivered.* The person who attempts to labor a jury, merits the most severe punishment, as such conduct poisons the first sources of justice.* It is highly improper for any person to converse with, or in the presence of, a juryman, concerning a cause, pending the trial of the same, and subjects the per- son so offending to a fine. Engrossing, Jorestalling and Reqvating. EnGrossina is the purchasing of large quantities of provisions, with intent to sell them again at a high price.6 It can be committed only with respect to the necessaries of life ;? and is an offence at common law? FoRESTALLING is the buying or contracting for any species of provisions or merchandise on the way to market, or dissuading persons from bringing their goods or provisions there, or persuading them to enhance the price when there; any of which practices make the market dearer to the fair trader.® It is indictable at common law.” REGRATING is the buying of corn or other dead victual in any market, and sell- ing it again in the same market, or within four miles of the place; for this also enhances the price of the provisions, as each successive seller must have a success- ive profit. ‘This act of 6th April 1802 provides, that ‘it shall and may be lawful for any person or persons to sell or expose to sale provisions, vegetables or fruit, in the markets of any city, borough or corporate town within this commonwealth: Provided always, That such provisions, vegetables or fruit shall not have been previously purchased within the limits of such city, borough or corporate town.’’? There is no law which prevents any person buying any quantity of a commodity at any price that he likes, whether to use himself, or to sell again in gross or by retail, or to give away, or to prevent another having it; provided always that he. do not commit the common-law offence of forestalling, regrating or engrossing, and make no false representation in order to effect the purchase. 12 Y. 443. Lewis’ Cr. L. 126.. 8 2 Chit. Cr. L. 527. 1 Hast P. C. 143. 2 2 Clark 171, 9 4 BI. Com. 158. 318. & R.173. 10 2 Chit. Cr. L. 527. 4 Ibid. 174, 11 4 Bl. Com. 158. 3 ® 2 Luz. L. Obs. 83. And see 41 Leg. Int. 104, 12 Purd. 1294. See 1 Phila. 338. 6 4 Bl. Com. 158. 3 Eng. L. & Eq. 46. 73 Eng. L. & Eq. 46. [ 412 } scape. I. Provisions of the Penal Code. III. Warrant against a constable for an escape, II. Judicial decisions. J. Aor 31 Marcu 1860. Purd. 502. Seor. 8. If any person arrested and imprisoned, charged with an indictable offence, shall break prison, or escape, or shall break prison, although no escape be actually made, such person shall be guilty uf a misdemeanor, and, on conviction, be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding two years, if the criminal charge on which such person stood committed, was a crime or misdemeanor punishable on conviction, by imprisonment by separate or solitary confinement at labor; or to imprisonment not exceeding one year, if such charge was a crime or misdemeanor punishable on conviction, by simple imprisonment without labor. 1f any prisoner imprisoned in any penitentiary or jail, upon a conviction for a criminal offence, other than murder in. the first degree, or where the sentence is for imprisonment for life, shall break such peni- tentiary or jail, although no escape be actually made by him, such person shall be guilty of a misdemeanor, and, upon conviction of said offence, shall be sentenced to undergo an imprisonment, to commence from the expiration of his original sentence, of the like nature, and for a period of time not exceeding the original sentenee, by virtue of which he was imprisoned, when he so broke prison and escaped, or broke prison, although no actual escape was made by him. Szot. 4. If any person shall aid or assist a prisoner, lawfully committed or detained in any jail for any offence, to make or to attempt to make his escape therefrom, although no escape be actually made, or if any person shall convey, or cause to be delivered, to such prisoner, any disguise, instrument or arms proper to facilitate the escape of such prisoner, although no escape or attempt to escape be actually made, he shall, on conviction, be deemed guilty of a misdemeanor, and be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding two years. And if any person shall aid or assist any prisoner to escape, or attempt to escape from the custody of any sheriff, constable, officer or other person who shall have the lawful charge of such prisoner, every person so offending, shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or simple imprisonment, as the court may direct, not exceeding two years. Szor. 5. If any sheriff, coroner, keeper of any jail, constable or other officer, having any offender, convicted or accused of any crime, in his lawful custody for such crime, shall voluntarily permit or suffer such offender to escape and go at large, every such sheriff, coroner, keeper of jail, constable or other officer so offend- ing, shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding five years, and shall, moreover, by the said sentence, be dismissed from office. Sxcr. 6. If any keeper, jailer, sheriff or other officer having a prisoner in his custody or charge, under a criminal conviction, sentence or charge, shall suffer such prisoner, through gross negligence, to escape, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to an imprisonment not exceeding one year, and to pay a fine not exceeding five hundred dollars. Stor. 7. If any sheriff, corover, or keeper of a jail, constable, or other officer, shall wilfully, and without reasonable cause, refuse to execute any lawful process, directed to him, requiring the apprehension or confinement of any person charged with, or convicted of, a criminal offence; or shall wilfully, and without reasonable cause, omit to execute such process, by which such person shall escape, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to an imprisonment not exceeding two years, and a fine not exceeding five hundred dollars. ESCAPE. 413 / Aor 10 June 1885. Purd. 503. Szor. 1. It shall be lawful for the judges of the courts of oyer and terminer, quarter sessions and general jail delivery of this commonwealth, to sentence any prisoner who may be convicted of jail-breaking or attempting to break jail, to the proper penitentiary, for said offence, and to add to said sentence for jail-breaking, or attempting to break jail, a further sentence to the said penitentiary for the remainder of the term which the said prisoner was serving at the time of his or her escape. Sxcr. 2. Whenever a sentence to the penitentiary for the remainder of a term of imprisonment as aforesaid shall be imposed by the judges of the aforesaid courts, said sentence shall release the prisoner on whom it may be imposed from serving the remainder of the term which he or she was serving in such prison at the time of his or her escape. II. A violent or privy evasion out of some lawful restraint, as when a man is arrested or imprisoned, and gets away before he is delivered by due course of law, is an escape.* In civil actions the sheriff [or constable] is to answer for an escape? A consta- ble is liable for an escape, without proof of negligence or misconduct on his part? An action against a constable for an escape is not within the limitation of the act of 1772.4 A prisoner in execution shall not be allowed to go out of the jail, or if he goes out, though he returns again, itis an escape. The sheriff is bound to keep him in safe and strict custody ; and if he allow the prisoner to go-at large for the shortest time, without the plaintiff's consent, he is liable.® To allow a prisoner in execution the liberty of the jail-yard is not an escape. But if the prisoner escape from the jail-yard, the sheriff can avail himself of nothing as a matter of defence, but an act of God or of the common enemy. It is not a sufficient answer to an action against a sheriff for an escape, that the jail and jail- yard are defective and insufficient to keep the prisoners.” If a jailer suffer a prisoner to escape without the sheriff’s knowledge, and the sheriff be thereby made responsible, the jailer is liable to him in an action on the case; nor will it relieve the jailer from liability, that he took advice and acted with good faith in the matter.® After an escape, the sheriff may himself retake the defendant, unless the escape were with his permission ;* but in the latter case, he cannot arrest or detain him without new process.’® In civil cases, the sheriff may re-arrest after a negligent, but not after a voluntary, escape; in criminal cases, he may arrest after either. Wherever a person is lawfully arrested, and afterwards escapes, the doors of a house may be broken open to take him, on refusal of admittance.” In an action on the case against a sheriff [or constable] for an escape, the measure of damages is the actual loss which the plaintiff has sustained; hence, it is compe- tent for the defendant to prove that the defendant in the execution was insolvent at the time of his escape ; but in an action of debt, the plaintiff is entitled to recover the amount of his judgment and execution.* If an action of escape be brought in debt, the jury, if they find for the plaintiff, must find the whole debt and custs ; but if brought in case, they may find such damages as they think proper." In an indictment for a voluntary escape, it is unnecessary to allege, that the defendant knew the person or persons escaping to be guilty.® Ifa party imprisoned upon an indictment found, or upon a regular commitment under the hand and seal of a justice of the peace, break prison and escape, he is guilty of a misdemeanor, under the act of 1860; and that without his being indicted, tried or convicted of the principal offence. A refusal to prosecute, or a 1 Termes de la Ley 321. See 3 Y. 180. 9 Barnes 373, 2 T. R. 25. 2 Bull. N. P. 59. 19 2 Johns. Cas. 3. BAW. 215. 11 59 Penn. St. 320. See 1 Gr. 187. 48 Penn. St. 405. 12 2 Hawk. P. C. 187. 5 2 Inst. 360, 381. 135 W.& 8.455. 3 Penn. St. 269. § 59 Penn. St. 320. 78 Ibid. 396. 1443Y.17. 4 Ibid. 47. 7S. & R. 273. 3 Penn 72 P. & W. 167. St. 269. 2 Greenl. Evid. ¢ 265. 35 W. 141. 15 29 Penn. St. 445 414 EVIDENCE. return of ignoramus by the grand jury for the principal offence, is no acquittal ; nor is it any bar to an indictment for breaking prison, whatever might be the effect of an acquittal by ajury | III. WARRANT AGAINST A CONSTABLE FOR AN ESCAPE. MONTOUR COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of N—— Township, in the county of Montour, greeting : Wuerzas, a certain A. B., of N —— township aforesaid, tailor, was on the lst day of May, a. v. 1860, at N-—— aforesaid, charged, on oath, before J. R., one of our justices of the peace in and for the said county, with stealing sundry goods and chattels from the house of T. R., of G—— aforesaid, store-keeper [or as the offence may be]. Whereupon our said justice did then and there make a certain warrant, under his hand and seul, in due form of law, directed to C. D., constable of R—— township, in the said county, requiring him to bring the body of the said A. B. before our said justice, to answer the said charge, which warrant was then and there delivered to the said constable, at R township aforesaid, to be executed; and whereas, complaint has been made, on oath, before our said justice, that the said C. D., constable as aforesaid, did, by virtue of the said warrant, on the same day and year aforesaid, at G aforesaid, take and arrest the body of the said A. B., and him in his custody for the said offence had, but not regarding the duty of his office in that behalf, unlawfully and negligentiy did permit the said A. B. to escape and go at large, out of the custody of him, the said C. D., to the great hindrance of justice, and in contempt of our laws. You are therefore hereby commanded forthwith to take the said C. D. and bring him before the said J. R., to answer the pre- mises, and further to be dealt with according to law. Witness the said J. R., as N—— aforesaid, the 20th day of May, a. p. 1885. J. R., Justice of the Peace. [szan.] Ebidence. I. General rules of evidence. VII. Handwriting. II. Of written evidence. VIII. Hearsay. III. Parol evidence. IX. Witnesses. IV. Book-entries and accounts. X. When a party to a suit may be a witness. V. Of accounts. XI. Miscellaneous cases. VI. Depositions, how to be taken. J. GENERAL RULES OF EVIDENCE. EVIDENCE signifies that that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or the other; and no evidence ought to be admitted to any other point? To be admissible, it must have relevancy to the issue, and tend to prove it; if the inference attempted to be drawn be too remote and conjectural, it cannot be received.? Evidence which ought not to influence the jury should be excluded from their consideration ;* but if a piece of evidence have any bearing on the question in issue, it is competent ;* it is not incompetent, merely because inconclusive.® Testimony in itself inconclusive, derives a conclusive quality from the neglect of the defendant to explain it, if within his power to do so.” The general rule is, that the best evidence in the power of the party must be produced ;° that is, the best evidence which the nature of the case admits of” The rule does not require the strongest possible evidence of the matter in dispute: but only that no evidence shall be given which, from the nature of the transac- 1 2 Ash. 61. And see 1 Brewst. 422. W.181, 1 Whart, 227. 3 Ibid. 34. 3 Penn. St. 2 3 Bl. Com. 367. 179, 239. 12 Ibid. 168. 32 Ibid. 111. 35 Ibid. 8 31 N. ¥.67. 2 ¥.95. 118. & RB. 267. 14 308. 42 Ibid. 402. 51 Ibid. 514. 58 Ibid. 463. Ibid. 195. 1 P.& W. 220. 3 W.456. 4 Ibid. 66 Ibid. 196. 69 Ibid. 53. 165. 3 Penn. St. 44. 42 Ibid. 402. 9 Wall. 726. 6 35 N. Y.49. 15 Wall. 539. 42 P.&4 W. 482. 3 Whart. 26. 10 Ponn. St. T 17 Pitts. L. J. 116. 488. 42 Ibid. 402, ‘ 8 Add. 48, 168. &R. 89. 24 Penn. St. 314. 5468, &R, 203. 5 Ibid. 227. 10 Ibid. 27. 3 9 4 Binn. 326, EVIDENCE. 415 tion, supposes there is better evidence of the fact attainable by the party ;! evi- dence is not deemed secondary, unless it carry with it an indication that better remains behind? The rule that excludes secondary evidence in a contest with primary, does not mean that everything is secondary which is not of the highest grade of proof, but only that which discloses the existence of other evidence, the non-production of which may be supposed to be, on the ground that, if produced, it would work against the party offering it. Secondary evidence is not admissible when primary evidence is in the power of the party, even in mitigation of damages. Where positive and direct evidence is not to be looked for, the proof of circum- stances and facts consistent with the claim of one party and inconsistent with that of the other, is deemed sufficient to presume the particular fact which is the sub- jest of controversy. Long and undisputed possession of any right, or property, affords a presumption that it had a legal foundation, and, rather than disturb men’s possessions, even records have been presumed. So, if a landlord gives a receipt for rent due at one time, and afterwards claims rent due at a time preceding, it fur- nishes a strong presumption that such preceding rent has been paid; and where a stale demand is made, the very circumstance of its coming late, in all cases inclines the mind to suspect that it has not a just foundation, and in many has been taken as complete evidence of the non-existence or payment of it; but these cases resting on presumption, and not on positive proof, very slight evidence is suffivient to rebut and overturn them, and to call on the different parties to establish their respective rights by the ordinary rules of evidence.’ Circumstantial evidence is, in the abstract, nearly, if not quite so strong as positive ; in the concrete, it may be much stronger.® But to convict on circumstantial evidence, each fact in the chain ought to be proved by distinct, independent and competent testimony; each should be consistent with the other, and with the main fact sought to be established ; the inferences to be drawn should be natural and reasonable, and to a moral certainty, certain ones ; and the hypothesis of guilt must be such as to exclude every reasonable or fair theory of innocence.” Where circumstantial evidence is relied on to prove a fact, the circumstances must be proved, and not themselves presumed ; no presumption can be drawn from a presumption.® And circumstances must be of a controlling and irresistible nature, to justify a disregard of positive testimony.® As a general rule, it is not competent to give evidence of other acts and offences of the accused, to establish the main charge; but to this rule there are certain exceptions. The case of fraud is among the few exceptions to the rule; on ques- tions of intent to defraud, other acts similar to the offence charged, done at or about the same time, or when the same motive to offend may reasonably be supposed to have existed as that which is in issue, are admissible with a view to the quo animo.” But the transactions must be so connected in point of time, and so similar in their other relations, that the same motive may reasonably be imputed to them all. It is uot necessary, however, that the means of accomplishing each fraud should be the same. Where the question is, whether goods have been procured by a fraudulent suppression of facts material to credit given, it will be competent to prove that, in other instances, they have been obtained by actual misrepresentation concerning the same facts. The concealment in one case, and false representation in the other, are evidence merely of a fraudulent design, common to both transactions, of pro- curing goods without the ability or the intention to pay for them." Whenever the intent or guilty knowledge of a party is material to the issue, collateral facts, tending to establish such intent or knowledge, are proper evidence.” The rule is the same in criminal prosecutions: thus, on an indictment for utter- ing counterfeit coin, to prove a guilty knowledge, evidence may be given of a subsequent uttering by the prisoner of counterfeit coin of a different denomination to that mentioned in the indictment.!® So, the passing of other counterfeit notes is 16 Pet. 352. 7 Ibid. 99. 12 Ibid. 1. 14 Ibid. 8 35 Penn. St. 440. 37 Ibid. 45. 431 9 1 Paine 129. 248, & R. 551. 10 17 W.N. 0.24. And seo cases collected in 3 87 Penn. St. 93. Bright. Dig. 998, 3249. 49 Johns. 45. 10 Ibid. 248, 11°18 N. Y¥, 589. And see 23 How. 172. 7 Wall. 5 Peake’s Evid. 13. 1 Greenl. Evid. 2 33-48, 132. 13 Ibid. 456. 6 4 Penn. St. 269. 9 Cr. 71. 5 McLean 514. 12 1 Story 135. Ibid. 421. 2 Paine 200. 7 BL 713 Phila. 427. And see 2 Cliff. 295. 3 W. C. C. 469, €.C. 146. 2 Bi. C. C. 207, 13 Dears, C. C. 456. A16 EVIDENCE. evidence of guilty knowledge! And on the trial of an indictment for conspiracy to defraud, evidence that the defendant obtained goods from other persons, by similar means, is admissible to show the quo animo.? On the trial of an indict- ment for false-pretences, evidence of similar offences, committed at other times, is competent, to show the criminal intent.’ So also, on the charge of receiving stolen goods, with a guilty knowledge, other acts of receiving, not so far removed in point of time or circumstance from the specific act charged in the indictment, as to constitute a totally distinct transaction, may be given in evidence to establish such guilty knowledge.* And so, on a trial for arson, the prosecution may show a sub- sequent attempt, by the prisoner, to burn the same property, two days afterwards.® Such evidence is admissible, even in a capital case: as, where two persons were murdered, at the same time and place, under circumstances indicating that both murders were committed by the same person, evidence of the circumstances of the murder of one was held admissible, on the trial for the murder of the other.® And on the trial of an indictment for the murder of the prisoner’s wife by poison (arsenic), evidence that the mother of the deceased came to her death, a few days before, by arsenic, administered by the prisoner, whilst prescribing for her, and while she was residing in the same house, that the arsenic administered to both was of the same description, and that it was given in pursuance of a design on the part of the prisoner to obtain their property, was properly admitted. In short, evidence of the commission of another crime by the prisoner, is competent, wherever it is relevant and material on the question of his guilt, of the crime for which he is on trial. The admissions of a party are evidence against him, though made after suit brought.® An admission against interest is evidence against the party of the ex- istence of the fact admitted ; but an offer to compromise, not accepted, is not evidence, as an admission" The admission, however, of an independent fact, though made in an offer of compromise, is evidence.!? The whole of a defendant’s admission must be taken together, unless there be circumstances which render im- probable what he says in avoidance of a conceded fact.® But, in general, where the declarations of a party are proved against him, what he says in his own favor, at the same time is competent, but not.conclusive, evidence in his favor.“ If the defendant, on the cross-examination of the plaintiff as a witness, bring out a portion of a conversation between the parties, the plaintiff is entitled to give the whole of it in evidence.’® It is competent, however, for him to disprove them. On the trial of a capital case, evidence of a motive for the commission of the erime is always admissible.” IL. OF WRITTEN EVIDENCE. Evidence by records and writings, is where acts of assembly, judgments, proceed- ings of courts, deeds, &c., are admitted as evidence. A record may be proved by its production, or by a copy. Copies of records are either exemplifications, copies made by an authorized officer, or sworn copies. HExemplifications are copies under the great seal or under the seal of some particular court, which seals prove them- 110. H. Reo. 46. Ibid. 49. 267. 61 Ibid. 202. 64 Ibid. 454, 2 6 Ibid. 43. 2 Wheeler’s C. Cas. 256. 10 33 Penn. St. 307. 84 Am. L. J. 507. And see 3 Hun 40;8s.c. "38. & R. 295. 28 Penn. St. 236, 60 N. Y. 616. 12 2 Penn. St. 182. 28 Ibid. 236. 12 Pet. 84. 4 3 Leg. Gaz. 336. 8 Phila. 615. 89 Penn. St. 1 Dall. 240. Ibid. 392. 6S. & R. 833. 3 480. . W. & 8.127. 57 Penn. St. 397. © 76 Penn, St, 319. 16 87 Penn, St enn. St. 7 enn. St. 376. \ 5 . 7 106 Ibid. 477; 8. 0. 99 Ibid. 398, 16 7 Penn. St. oe pee Ron ete § 83 N. Y. 418. 11-78 Ibid. 185. 84 Ibid. 107, 187. 85 Ibid. ® 1 Dall. 64. 6 W. 126. 7 Ibid. 552. 8W.& 139. 88 Ibid. 291. 91 Ibid. 57. 8.420. 7 Penn. St. 307. 24 Ibid. 154. 59 Ibid. EVIDENCE. 417 selves. Where the law intrusts a particular officer with the making of copies, it gives credit to them in evidence, without further proof. Not only records but all public documents which cannot be removed from one place to another, may be evidence, by a copy proved on oath to have been examined with the original. Records and enrolments prove themselves, and a copy of a record or enrolment sworn to, may be given in evidence. An office paper taken out of the files by one who has no connection with it, and produced in court, cannot be given in evidence; it must be produced and authenticated by the proper officer, in whose custody it was.® A copy of the laws published annually by the authority of the legislature, is evidence of the statutes contained in it, whether they be public or private A printed copy of an act of assembly, published under the authority of the legislature of another state, may be read in evidence.® , Foreign laws cannot be judicially noticed, but must be proved as facts; and in making such proof, the general principle is applicable, that the best evidence the nature of the case admits of must be given. But this rule may be relaxed, or changed, as necessity, either physical or moral, may require; and where a rigid adherence to it may produce extreme inconvenience and manifest injustice. Tn all suits or causes -* ** «* "" be necessary for either party to give in evi- dence the prore*” 3s had before a justice or justices of the peace or alderman of any ot’ ace, a transcript of the docket, proceedings or record of the said justice or justices or alderman, certified by the same, respectively, and verified by the certificate of the clerk or prothonotary of a court of record in the city or county wherein the said justice or alderman has jurisdiction, under the seal of the court, setting forth the official character and authority of the said justice or alderman, attested by the judge thereof, shall be legal evidence of the judgment entered in such case.’ Subscribing witnesses are not necessary to the validity of a deed,® and therefore, if there be none, or the subscribing witness being called, denies having seen the instrument executed ;° or it appears that the name of a fictitious person is put as a witness, by the party himself who executed the deed ;” or the person really attesting is, at the time of the execution of the deed, interested in it, and continue so at the time of the trial; in these cases, proof of the handwriting of the party will be sufficient. Anu agreement or deed, under which land has been occupied and claimed for up- wards of thirty years, may be given in evidence, without proof of its execution, by the subscribing witnesses." The record of a deed, as contained upon the record- book, brought into court in the county in which it belongs, is legal evidence.# A deed so acknowledged or proven as to be properly admitted to record, is admissible in evidence, without further proof of execution.” Parol evidence, in general, is esteemed secondary in its nature to written evidence. Thus, where an agreement has been reduced into writing, the writing must be pro- duced.* Generally, whenever an original writing is of’ a public nature, and would be evidence, if produced, an immediate sworn copy thereof will be evidence ; but where an original writing is of a private nature, a copy is not evidence, unless the original is lost or destroyed.™ If a man destroys a thing that is designed to be evidence against himself, a small matter will supply it, and therefore, the defendant 1 Bull. N. P. 229. 2 Co. Litt. 117, 262. 3 9 W. 311. 46 Binn. 321. 2 W. & S. 156, And see 3 Whart. 481. 80 Penn. St. 208. 6128. &R. 203. 2 Penn. St. 85. | JO W. 158. 1 R. 386. 1 Greenl. Evid. 3 486-8. 7 Act 29 March 1860. Purd. 821. The act 12 March 1869 provides, that the aldermen of Phila- delphia and Lancaster shall have public official seals, with which they shall authenticate all their acts, instruments and attestations; and that their official acts, so certified, shall be received in evidence of the facts therein certified, in all suits, without a further certificate of their official 27 character. For this service, they are allowed a fee of twenty-five cents. Purd. 1125. See 3 Brewst. 540. And see act 17 April 1869, validating prior acknowledgments under their private seals. Pamph. 1144, 8 1 Lev. 25. 18. & RB. 72. 9 Peake 146. 1 Doug. 205. 1 W. BI. 365. 10 Peake 23, 5 T. R, 371. i111 W. & S. 533, 5 Penn. St. 492. 56 Ibid. 132. 57 Ibid. 13. 67 Ibid. 185. 12-10 W. 67. 18 4 Penn. St. 13. 5 Gilm. 376. 14 3 Hsp.213. 3 Y.271. Add. 390. 18.&R 27. 4W. 218. 38W.&S8.291. 6 Ibid. 564, 16 3 Salk. 154. 3 Y.529. 3 W.&S. 45. 418 EVIDENCE. having torn his own note signed by him, a copy sworn was admitted to be good evidence to prove it.’ : The docket-entry, upon proof of the loss of the other part of the record, is com- petent evidence ; and parol evidence may be given of the contents of that part of the record which is lost.? : dal In the case of private deeds or other instruments, the production of the original, if in existence, and in the power of the party using it, is always required; till this is done, no evidence whatever of the contents can be received; but where the original has been destroyed, or lost by accident; or being in the hands of the ad- verse party, notice has been given him to produce it, then an examined copy, or even parol evidence of the contents, being the best evidence in the power of the party, is received; it being first proved, in case a copy is offered, that the original of which it purports to be a copy was a genuine instrument.’ : The preliminary proof necessary to admit secondary evidence of the existence and execution of a lost deed, must be based on the acts and declarations of the party whose title is to be affected by such evidence. Before secondary evidence can be given of a lost deed, it is necessary to prove that it was executed and delivered, and if the person whose title is to be affected by it was not named in the deed, and did not sign it, that such person was in some way a party to the deed. Proof of diligent search and inquiry by the proper custodian, is sufficient to let in ‘secondary evidence of the contents of a lost document, unless it be traced to other hands.5 A receipt is not conclusive evidence against the party signing it, but he may show that he did not receive the sum or thing in question.® A receipt in full is prima facie evidence of a settlement; but not conclusive ;’ it is always open to explanation ;° so, if obtained by misrepresentation?® Tn an action against a justice of the peace by a parent, to recover the penalty for marrying’ his minor son, the entry in the family Bible of the son’s birth, proved by the oath of the plaintiff, is competent evidence of the minority of the son.” An entry, in 1811, in the handwriting of the pastor of a church, in a book kept in the church as a registry of baptisms and births, the object of which entry was to register the baptism of a person and not his birth, and in which the time of the birth was introduced merely by way of description, is not evidence of the date of the birth.” The practice of admitting an account sworn to by the plaintiff as conclusive evi- dence against the defendant, is not only illegal, but highly unreasonable and dan- gerous, as it gives to the dishonest man a power over his neighbor’s purse totally incompatible with every rule of equity or justice. However convenient to the plaintiff, or whatever facility in the transaction of business it may afford to the jus- tice, the practice, if it has prevailed, ought to be discontinued. And indeed proceedings of justices founded upon such practice are invariably set aside by courts of justice.?? A paper handed, upon request, to the opposite counsel, and inspected by him, does not, in consequence thereof, become evidence for both parties.® A memorandum proved by a witness, who can swear to no more than that it was accurately made by him, at the time, to perpetuate his memory of the fact, is com- petent evidence.* A witness may testify as to his belief of the date of an occurrence, after having refreshed his memory by a contemporaneous entry in his books, though he has ne other recollection of the time. 1 Ld. Raym. 731. 6 Binn. 478. 7 Phila. 204. 210 W. 63. And see 2 R. 232. 10 10 W. 82. 810 Co. 92. 3 T.R. 151. 1 Str. 70,526. 1 15 W. &.S. 266. Atk. 446. 10 Johns. 36% 12-2 Dall. 77, 114. 16 W. N.C. 495. But where 4 29 Penn. St. 375. such sworn copy is served with the summons it is 5 31 Ibid. 489. sufficient to authorize a judgment, unless denied 6 2T. R. 367. 38 Penn. St. 294. by affidavit of defence. Act 7 July 1879 @ 2. 1 57 Penn. St. 397, Purd, 1131, 8 38 Ibid. 294. 1368. & R. 293, 12 Ibid. 405. ® 35 Ibid. 245. But one who seeks torecover 4 3 Penn. St. 414, against a receipt must make out his case clearly. 1 57 Ibid. 421. EVIDENCE. . 419 IIL. Parou EVIDENCE, WHEN ADMITTED TO AFFECT A WRITTEN CONTRACT. The general rule is, that parol evidence is admissible to explain, but not to con- tradict, alter, add to, or diminish a written instrument. But the rule which forbids parol evidence to be received, to contradict or vary a written agreement, has refer- ence exclusively to the terms in which the writing is couched. The plain and unequivocal terms of an agreement may not be altered by parol; but such explana- tions of the subject-matter may be proved as will give those terms the effect intended by the parties.? Parol evidence is admissible to defeat a written instrument, on the ground of fraud or mistake, or to apply it to its proper subject-matter ; or, in some instances, as ancillary to such application, to explain the meaning of doubtful terms, or to rebut presumptions arising extrinsically. In these cases, the parol evidence does not usurp the place or arrogate the authority of written evidence, but either shows that the instrument ought not to operate at all, or proves what is essential in order to give the instrument its legal effect. But parol evidence is not admissible to contradict or vary written instrument, unless there has been fraud, accident or mistake in the creation of the instrument itself, or unless there has been an attempt to make a fraudulent use of the instru- ment, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed.* It is only where a court of equity would reform the instrument, that parol evidence is admissible to contradict it,® Parol evidence is admissible to explain a latent ambiguity. So, parol evidence of the understanding of the parties as to the construction of a written agreement, may be given to explain a patent ambiguity.” It is always admitted, to explain a receipt ;* or to show a different consideration from that expressed in a deed ;® or to defeat or rebut a resulting trust. But it is inadmissible to vary the legal effect of a contract of indorsement ;" or to turn an irregular indorsement into a guarantee.* Nor can parol evidence be admitted of an agreement that a note should be renewed, at maturity ;* or that it was only to be payable on a contingency, or that the maker was not to be held liable on it.?* As a preliminary to every question of the interpretation of a writing, it must be proved or assumed that it is genuine and authentic; that it is free from fraud in its creation; that the makers of it were competent; that the subject-matter of it is lawful; and that it is executed according to law: and for these purposes, parol evidence is proper, in order to put the instrument into the hands of the judge for interpretation and construction. The judge must receive, by admissions, or by testimony, all the information that is necessary, in order to put himself in a position to interpret and construe the writing with intelligence : that is, to apply it to per- sons, things and events, according to the intention under which it was written. He must, as far as possible, place himself in the same circumstances of time and place, as the author of the writing was when he wrote it.” The evidence to establish a parol agreement, limiting the operation of a written contract to a particular time, must be buth positive and clear.’° But though parol evidence to reform a written instrument must be ‘clear, precise and indubitable,” yet these words are to be accepted with their inherent limitations ; it is sufficient, that it, carry conviction to the minds of the jurors, that the witnesses are credi- ble, that the facts are distinctly remembered, that the details are exactly narrated, and that their statements are true.” It must be such clear, precise and indubitable 14 Dall. 340. Pears. 537. 2 29 Penn. St. 92. 9 89 Penn. St. 114, 3 1 Bouv. Inst. 358 10 92 Ibid. 317. 4 106 Penn. St. 536. And see 7 Ibid. 117. 11 1 2W.N.C. 262. 3 Ibid. 44. Thid, 233, 83 Ibid. 244, 100 Ibid. 527. . 12 4 Phila. 75. 5 Ibid. 38, 151. 2 Pears. 28, 30. 5 106 Penn. St. 536. 84 Penn. St. 274. § 30 Ibid. 398. 67 lbid. 108: 76 Ibid. 197. 18 52 Penn. St. 356. 73 Ibid.93. 76 Ibid. 273. 79W.9. Andsee8S.& R.402. 8 Penn. St. 14 13 Phila. 51. And see 10 W.N, 0. 483. 501. 80 Ibid. 363. 15 31 Penn. St. 252. 81 W.4&S. 321. 12 Penn. St. 235. 13 Ibid. 16 85 Penn. St. 329, 46. Ibid. 60. 15 Ibid. 128. 59 Ibid. 59. 1 17 89 Ibid. 314. 420 EVIDENCE. evidence as would justify a chancellor in reforming the instrument on the ground of fraud, accident or mistake.! : i The rule which excludes parol evidence to contradict or vary a written instru- ment only prevails in a contest between the parties to it; it does not apply to a stranger.” No defeasance to any deed for real estate regular and absolute upon its face, made after the passage of this act, shall have the effect of reducing it to a mortgage, unless the said defeasance is made at the time the deed is made and is in writing, signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor, and is recorded in the office for the recording of deeds and mortgages in the county wherein the lands are situated, within sixty days from the execution thereof; and such de- feasances shall be recorded and indexed as mortgages by the recorder.* IV. Boox-ENTRIES AND ACCOUNTS. If a suit be founded on a book-account, and the defendant question the validity of the demand, it is most assuredly the duty of the justice before whom the cause is de- pending, to require of the plaintiff to produce his proofs of the existence of the debt. If the subject of the action be goods sold and delivered, or work and labor done, in the usual course of business, for the defendant, the plaintiff's day-book ought to be produced. The book, accompanied by the oath or affirmation of the person who made the entries (whether it was the plaintiff or his clerk), that the entries were truly made,‘ at the times then specified, will not only be good evidence of the sale and de- livery, but likewise of the value of the goods, or work done. if a price be put upon them in the book. The book thus produced, and sworn to, must be the plaintiff's original book of entries, and not a ledger, or transcript from the original; for the strength of this evidence is derived from the absolute authenticity of the orignal en- tries. The authenticity may be corroborated or diminished by the appearance of the book itself; by the manner of the entries made against other persons; by the con- sistency of the date, &c. The plaintiff's book being thus made competent (if I may so speak) as a witness, must evidence its own credibility ; its credibility will rest upon the fairness and regularity of the entries, unless it be reasonably accounted for ; and interlineation, particularly with ink of a color different from that with which the body of the entry was made; crowding more words into a smaller space than the general handwriting of the book required, and the like, are circumstances of fraud which should not only invalidate the specific entry under consideration, but perhaps destroy the testimony of the book altogether.® Books of original entries made by the party, and verified by his oath, are competent evidence of goods sold and delivered, and work done, and of the prices; but not of money lent or paid.” The book of original entries of a tradesman is not evidence of the delivery of the goods to be sold on commission. A book of entries, verified on oath, is not competent evidence of the delivery of goods under a previous contract, for their delivery at different periods;°® nor of labor performed under a special con- tract.!° Books of original entries are not evidence of the casual sale of an article not in the course of the party’s business, and of which it is usual to take other proof or evidence of sale: thus, a sale of a horse, by a dry-goods merchant or tradesman, would not be evidence by an entry in his book of account.” The book of original entries, although prima facie evidence of the prices of goods sold, or work done, is not conclusive; either party may go into other proof of the prices, and the judgment of the jury [or justice] is to be formed on the whole.” The book of original entries of a physician is not conclusive as to the value of the services ape : The jury [or justice] may make an abatement for unreasonable or excessive charges. 1103 Penn. St. 37. 82 Whart. 33, 1 Y. 198. 21 Whart. 303, 21 Penn. St. 266. 910 W. 249. 3 Act 8 June 1881. Purd. 651. 10 26 Penn. St. 384, 41 Y. 321. 1 11 Ibid, 310-12. 5 Tbid. 347. 121 Y. 347. 59 Penn. St. 346, 6 Grayd. Just, 116-17. 1 Greenl. Evid. 3117. 182 Phila. 17. See 4 Clark 191, 71 Y. 347, 48.&R.3, 11 Penn, St. 242, 1 Smith’s Lead. Cas. 354. EVIDENCE. 421 If the defendant be not the original debtor, but assume to pay the debt of another, the entry in the plaintiff’s book, proved by his own oath, cannot be received in evidence ; proof must be made by an indifferent witness, or by some instrument of writing.! Unconnected scraps of paper containing, as alleged, accounts of sales, by an agent, of articles on account of his principal, irregularly kept on their face, are not admis- sible as a book of original entries? A mutilated piece of paper, which appears to have been torn out of a book in which the nawe neither of the plaintiff nor defend- ant appears, which contains no charges against the defendant, and which is unintelligible, without explanation by the plaintiff’, is not admissible in evidence as a book of original entries. A book purporting to be a book of original entries, containing entries of the sale of goods made when the goods were ordered, but before they were delivered, is not competent evidence of goods sold and delivered. Nor are arbitrary signs or marks affixed to the entries of each article, not for the purpose of charging the defendant, but of informing the porter, so as to prevent a second delivery of a similar article, evidence of delivery, particularly when it appears that the signs or marks were not always made by the person who made the charge, nor by the plaintiff, or a clerk in his employ. Where a plaintiff makes an entry of goods sold, upon a card, with pen and ink, and the same evening or the next day, transcribes the entries into a book, the book is to be considered as the book of original entries of the plaintiff, and may be read in evideuce to the jury; and the material on which the entry was first written, or its size and shape, are indifferent. In order to the validity of a book-entry as evidence, it must be a registry of a sale and delivery, actually made, of the things therein contained at the time of their being so entered. An entry on a card or slate is but a memorandum preparatory to permanent evidence of the transaction which must be perfected, at or near the time and in the routine of business. The entries ought tobe transferred the same evening, or the next morning, and they ought in every instance to be so, in the course of the succeeding day.” The plaintiff, a blacksmith, to recover for work done, produced a book containing entries, part of which he swore were made by himself, not later than the second day in the evening after the work was done, and were partly taken from a slate and partly from his own head—a witness was also produced, who testified that he made some of the entries by copying them from the plaintiff’s slate on the evening of the day on which they were made, or in the course of the next day: Held, that the book was admissible in evidence.® When a purchaser at a store selects the articles he wants, and has them set aside to be sent for by him, or to be sent to him by the merchant, then is the time to make the entry of a charge against the purchaser, and such entry is evidence.® When goods are sold to be delivered at a distance, the proper time to make the entry in the book is when they are loaded and started; and entries thus made are competent evidence to prove the sale and delivery.” Original entries in a day-book, in order to their validity as evidence of a charge, must be made,.as to time, in the ordinary course of that business in which he is engaged who makes the charge. If they be delayed over one day, they are not legal evidence to charge a defendant, unless under peculiar circumstances." If a servant in the course of delivering out goods to customers make memoranda, and the same night, or next day, entries are made by the master in books, from these memoranda, such books are books of original entries, and are admissible, accompanied With the writer’s oath, as evidence to charge a customer.” If a book appear, on inspection, or examination of the party by the court, not to be a book of original entries, the court may reject it as incompetent. If this 11 7 14 W. 258, ° 128. & R. 126. 5 Bees a 4 R. 291. . . 4 Thid. 404. ¥ 5 Ibid. 377. 5 Thid. 408. lg W. 544. 8 4 W. 258. 2958. & R. 285 422 EVIDENCE. does not clearly appear, it must be submitted to the jury [or the justice], to decide on.! In an action upon a book-account of a decedent, it is only necessary to prove that they are books of original entry, to admit them to go to the jury as evidence, and if evidence be afterwards given as to the time when the entries were made, this must be referred, with the books, to the jury.2_ The handwriting of a plaintiff who has made original entries of charge in a book, and who is absent from the state, may be proved, and upon such proof the entries are admissible.2 And so in case of a clerk (who has made the entries) temporarily absent from the state." ; A book of original entries manifestly erased and altered in a material point, can- not be considered as entitled to go to the jury as a book of original entries, and ought to be rejected by the court, unless the party offering it give an explanation which does away with the presumption arising from its face. : The entry in a book of original entries must be original, but the elements which composed it may have been reduced to writing previously ; the competency of such entries made by a clerk, depends not on his own knowledge of their correctness, but on the presumption that what he did in the course of his master’s business, was done correctly. The rule which admits shop-books in evidence is founded in necessity, and being evidence made by the party himself, should be subjected to severe scrutiny. And, therefore, when the books of a tradesman have acquired a general reputation for inaccuracy, and through fraud or carelessness false entries have been made, and true ones omitted, so frequently as to destroy the confidence of his customers in himself and his books, there is no reason why credence should be given to them. The general character of a deceased shopkeeper, who made the entries, for hon- esty and correct book-keeping, is pertinent and proper testimony to discredit the books." The book of original entries of a party claiming for goods sold, or work and labor done, is not the best or only evidence of the claim, which may be proved aliunde® Though the act of 1869 has made the plaintiff a competent witness in his own behalf, yet he is not so, in an action against the personal representatives of his deceased debtor; and, therefore, in such cases, the foregoing rules of law are in full force. Though the plaintiff is not a general witness in his own behalf, he may prove his book of original entries as before the passage of the act ;* which has not rendered any one incompetent as a witness, who was not so before its enactment.” A book-account, containing charges of money lent to a decedent, is not evidence against his estate.’ OF ACCOUNTS. An account rendered to a party indebted, by his creditor, and not objected to in a reasonable time, is prima facie evidence against the party to whom rendered.’ An account presented to a party indebted, by a creditor, and corrected by the parties, is an account stated, and binding upon the representatives of the debtor, as to items not objected to by the decedent.® A copy ofan account taken from a book, from which a settlement had been made, was delivered to the party, and retained five months without objection: Aeld, that a copy of that copy, and the book from which it was taken, showing the same balance, were evidence.* Even an account-current furnished by one party to the other, if not objected to in a reasonable time, becomes a settled account.'® Where an account sales has been rendered, and the consignor directs the balance to be shipped, making no objection to the items of the account, he thereby assents to it, and makes it account stated." It is the settled law-merchant, that an account rendered is allowed, if not objected to without unnecessary delay; but the time within which objections must be made cannot be definitely fixed ; it depends on the circumstances of the case.” 148. &R.,3. 1010 W. N.C. 446. 13 Ibid. 565. 21W.& S. 256. lL 2 Pears. 487. 8 Ws Th 22 30 Penn. St. 75. 42W. & S. 137. 13 36 Ibid. 156, 5 6 Whart. 146. 14 2 Ibid. 323. 6 2 Phila. 35. Bald. 536. 4W. & S. 109. 7 29 Penn. St. 257. 16 7 Penn. St. 281. 8 3 Whart. 75. W148 Thid. 228. 8 11 Phila. 100. EVIDENCE. 423 Receiving an account rendered, without objection, does not preclude the party from afterwards showing an unobserved error which passed without notice by the common blunder of all parties. Such an error might be corrected even in a settled account, where neither party had been prejudiced by the acquiescence. The accounts exhibited by oné party to another, are evidence against him who exhibits them, as to the articles which they contain, but not conclusive as to the value of the items.’ Entries in a book of payments made for another may be given in evidence, if accompanied with proof that the person had constant access to the books, and assented to the entries.’ If, when one party calls for the other party’s books, but when they are produced declines using them, the mere calling for them will not make them evidence for the adverse party, even though they are inspected by the party who calls for them# Whenever any evidence shall be required, in any civil suit or proceeding, in any ‘court of this commonwealth, from the book-entries of any bank or banker doing business at the time of such requirement, it shall be competent, upon ten days’ written notice to the opposite party, to produce verified copies of such entries, which shall be received in all legal proceedings as prima facie evidence of such book- entry or entries ; and a bank-officer or banker shall not be compelled to produce the original book or attend as a witness thereto, unless a party to the record shall file an affidavit that injustice will likely be done, unless the original book is produced ® To warrant such copy as provided for in the foregoing section, there must be an affidavit or the testimony of an officer of the bank, stating that the book is one of: the ordinary books of the bank used in the transaction of its business, that the entry is as was originally made at the time of its date, and in the usual course of its business, that there are no interlineations or erasures, that the book is in its custody and control, and that the copy has been compared with the book and is a correct copy of the same; and such book shall be open to the inspection of any interested party. Provided, That the provisions of this act shall not apply to any suit to which the bank or banker is a party.7 VI. DEpositions, HOW TO BE TAKEN UNDER A RULE. A deposition is the testimony of a witness, called a deponent, and put down in writing, to interrogatories exhibited [or questions asked], for that purpose, in courts of equity [or iaw]; and the copies of such depositions, regularly taken and pub- lished, are read, as evidence, at the hearing of the cause.® The necessity of issuing rules to take the depositions of witnesses, is caused by their residing at a distance from the place where the cause is to be tried. A. sues B. in the county of Allegheny. The cause is expected to be tried at the term of the court of common pleas to be holden in Pittsburgh. C., the attorney of A., makes application to the court, and obtains a rule to take the depositions of witnesses in Philadelphia, :to be read when the cause shall be tried. C., having obtained the rule, sends notice to the attorney of B., or to B. himself, as the law, or the practice, may require, of the time and place at which he purposes to examine the witnesses. A notice in the following form will answer this purpose : “A. vs. B. In the Court of Common Pleas of Allegheny County, No. 2. To. B., the defendant :—Sir, you are hereby notified, that under a rule of court, of which the above is a copy, depositions will be taken, in said cause, between the hours of 9 a.m. and 5 P. M., on the 19th day of June, a. p. 1885, at the office of J. B., Magistrate, No. 36 South Sixth street, in the city of Philadelphia, before the said J. B., or some other magistrate of said city. C., Attorney for the Plaintiff. To B., the defendant. Pittsburgh, June 4th, 1885.” If application, for that purpose, be made to the magistrate, before the rule is to be executed, he should issue subpaenas for the witnesses. If they do not attend, he has a right, on application, and due proof that the subpenas were personally served, 13 -W. & S. 109. 5 Act 22 June 1883 3 1. Purd. 824. 2 1 Dall. 147, 6 Ibid. ; 2. 28 W. 39. Tbid. 3 3. 475. & BR. 10, 8 Pract. Att’y 234, \ i 424 EVIDENCE. to issue an attachment, give it to the constable, and compel the attendance of the witnesses, as in other cases.1 The parties and witnesses being in attendance, and ready to proceed to the execution of the rule, the magistrate should write, at the top of a sheet of paper, a heading of the following, or a similar character : “ Depositions of witnesses produced, sworn [or affirmed], and examined, at the office of J. B., one of the magistrates of the city of Philadelphia, No. 36 South Sixth street, in said city, on the 19th day of June, a. p. 1885, between the hours of 9 4. M. and 5p. m., of said ‘day, in obedience to the rule of court, and notice, hereto attached, to be read in a cause depending in the court of common pleas of Allegheny county, No. 2, in which A is plaintiff and B. defendant.” Having sworn or affirmed the witness, in the usual manner, counsel, or the parties, or their agents, will, if there be no interrogatories filed, proceed to the exami- nation, and cross-examination of the witness. Where there are interrogatories filed, let the justice, previously to reading the interrogatories, note on the sheet of paper on which he is about to write the answers of the witness, a short heading, in these, or similar words—“ To the first interrogatory on the part of the plaintiff the witness answers”—[inserting the answer of the witness]; and so proceed, with every interrogatory, or with the examination, until every question shall be answered, and the answers committed to paper. Care should be taken that a return be made to every interrogatory. The writer, from some experience, recommends to the justice, who shall commit the examination to writing, on all occasions, to take down, as nearly as may be, ali the witness may say, and in the very words of the witness. If he wish to correct any- thing he may have said, let the correction also be committed to paper in the words of the witness. Much, very much, may depend upon the turn of an expres- sion, or the placing of one word before, or after, another. It is better to allow the witness to correct his statements, and to change his words, than to erase some words, and insert others. The witness, in correcting himself, in speaking in his own words, in giving his recollections as they present themselves, is brought more freshly, and more truly, before the court than he could be by erasures and inser- tions. The trust confided to justices, in the examination of witnesses under a rule of court, and committing the language of the witnesses to paper, is a very important one; and he will best. discharge it, who shall labor most diligently and successfully to bring the witness, in all his peculiarities of language, most faithfully before the court, so that, as far as possible, his deposition shall make the same impression upon those who hear it read, as the witness himself’ would make, if he were personally present, orally delivering his testimony. If there shall be any paper produced, in relation to which the witness shall be examined, let it be marked thus: A. ‘The witness being shown the paper marked A, hereto attached, deposes and says,”’ &. Before attaching the paper, write on it thus—‘ This is the paper A, referred to this day, June 19th, 1885, by the wit- ness, H. M., on his examination before J. B., Magistrate.’ The examination being finished, let the witness subscribe his name at the foot of it; if he cannot write, let him put his mark. All the papers being arranged and attached to the examination, and the rule of court and notice, the alderman should, at the foot of it, give a certificate in the form following :—“ I certify that the above witnesses were duly qualified and examined at the time and place stated in the caption, and subscribed their depositions in my presence. Before J. B., Magistrate, Phila., June 19, 1885.5 The whole of the papers should be put under an envel- ope, and addressed to the prothonotary of the court from whence the rule issued, and directed to the county town of the proper county where the office of the pro- thonotary is kept. A rule to take depositions implies, without being so expressed in it, that they are to be taken before a judge or justice of the peace.‘ A notice to take depositions should have sufficient certainty as to time and place to enable the opposite party to attend, without any extraordinary search. Deposi- tions taken ex parte, under a rule of court, after the hours named in the rule, 1 Act 26 February 1831. Purd. 813. 458. & R. 246, 2 See 7 W. & S. 398-4, 5 3 Binn. 139. 16 Penn. St. 305, 8 See 15 Penn. St. 51. EVIDENCE. 425 cannot be read; but, if the opposite party, having notice, did not attend at the hour, they may.!’ The person before whom depositions are to be taken, has no power to adjourn from time to time, without consent and without notice. It is irregular to give a notice to take a deposition upon two days, although they be con- secutive.® Otherwise, when there are many witnesses to be examined.* Notice of the taking of a deposition, served on the attorney in the cause, is good unless he object at the time of service. A deposition taken in pursuance of a rule of court cannot be read in evidence, unless it appear by the certificate of the justice, that it was taken at the time and place mentioned in the notice ° It must particularly appear when and where the depositions were taken." The witness should be sworn before his testimony is reduced to writing, but if the party, being present, make no objection before the justice, it will be considered as waived.® If the deposition be ex parte, it must appear that it was taken before a person duly qualified to administer an oath, either officially or by delegation from the court.® The letters “J. P.”’ subjoined to the name of the persou before whom a deposition is taken, are a sufficient designation of his official character as a justice of the eace.! r A party who attends and cross-examines witnesses, on a short rule to take deposi- tions, waives all objections to the sufficiency of the notice." A cross-examination, under a rule of court, does not prevent objection, afterwards, to the competency of the witness."? But objectious to leading questions must be taken at the time of the examination.’® : The rule of court is, that the depositions shall be taken before a justice. It ought, therefore, to be reduced to writing, from the mouth of the witness, in the presence of the justice, though it need not be drawn by him.“ It is not competent for the justice to make the attorney of one of the parties his clerk, to take a deposition, unless with the express consent of the other party, or in the presence of his attorney, and acquiesced in by him. The part of a deposition which is in the handwriting of the agent, or attorney of the party, cannot be read; although an agent of the other party was present, and cross-examined the witness, after having objected to his competency, on the ground of interest. The cross-examination, in the hand- writing of the justice, is not exceptional, and may be read.1® If a deposition be drawn by an attorney, agent, party or relation of a party, having or feeling an . interest in the cause in which it is to be read, it is good ground for rejecting it.” It is a fatal objection to a deposition that it was not orally delivered before the examiner, in a regular course of judicial examination, and reduced to writing by him or some proper person with his authority.® A deposition drawn up privately by one of the counsel in the cause, from the mouth of the witness, and afterward sworn to before a justice, under a rule to take depositions, is not admissible in evi- dence ; a deposition, taken before a justice under a rule, ought to be reduced to writing, from the mouth of the witnesses in the presence of the justice.” Testimony taken under a commission in another state cannot be read in evidence, if the attorney of one party was present when it was taken, though he took no part in the examination, and was not employed to attend. The practice is to disallow depositions taken by a commissioner, when the party procuring it was present with the commissioner at the time of taking it. The party, his solicitor or agent, pro- cures the attendance of the witnesses before the commissioner, but must withdraw while it is being taken.” When a deposition is taken before a justice on interrogatories, it is the duty of the justice to put the interrogatories severally to the witness and obtain distinct 1 2 Binn. 72. 11 35 Penn. St. 111. 253. & R. 70. 12] Dall. 275. 38 W. 406. 18 3 Binn. 133. 4 2 Penn. St. 20. 144128. &R.410. See 94 Penn. St. 64. 588. &R.41. 15 Penn. St. 65. 1612~P. & W. 454. 64W.& S. 113. 16 2 Ibid. 200. 74 W. 0. 0. 186. 17 3 Ibid. 41. 8 6 W. 266. 18 8 W. 406. 9 20 Penn. St. 130. See 8 W.N. C. 37. 9125S. & R. 405. 0 32 Ibid. 514. And see 3 Binn. 539. 20 6 Penn. St. 450. A426 EVIDENCE. answers to each! Interrogatories which are directed to be put to the witnesses on behalf of one party, need not be put to the witnesses of the other.’ It is not necessary that the interrogatories should be incorporated into the body of the depositivn ; it is sufficient that they have been severally answered.® . In case of difference of opinion in taking down the words of the witness, the justice should decide.* It is not necessary that depositions taken under a commission should be sub- scribed by the witness.2 There need not be a certificate by the justice at the conclusion of each deposition taken by him; the general caption and certificate are sufficient.® Regularly the return to a commission should be addressed to the prothonotary; but where the deposition, though received by the plaintiff, was submitted to and first examined by the defendant’s attorney, and was afterwards filed, the irregularity in the return was held not to be a sufficient reason for excluding it." VII. Hanpwrirtina. The best evidence to prove the handwriting of a person, is that of a witness who actually saw him write it. Such direct evidence cannot, however, always be procured ; and in general, to prove the handwriting of a person, any witness may be called, who has, by sufficient means, acquired such a knowledge of the general character of the handwriting of the party as will enable him to swear to his belief that the handwriting in question is the handwriting of that person.® The best evidence of the execution of an instrument is the testimony of the sub- scribing witness: the next best is, proof of the handwriting of the witness, and this will be admitted, when the witness is dead, or out of the jurisdiction of the court#* If the subscribing witness to a bond be out of the jurisdiction of the court, and, upvn diligent search, no person can be found within its jurisdiction, who can prove his handwriting, evidence of the handwriting of the obligor is admissible.’ The handwriting of a party to a receipt may be proved by a witness who has never seen him write, but who, in the course of dealing with him, has received his notes, which he has paid; if the witness swears affirmatively, from his knowledge derived from these facts, that he believes the signature produced to be the proper handwriting of the party." A notary-pubtie, who has seen much of the party’s acknowledged writing, though he had never seen him write, was held competent to prove his signature as an attest- ing witness to a will? Handwriting may be proved by one who has become familiar with it, in a Jang correspondence with the writer, although he may never have seen him write. A witness vhose only knowledge of the handwriting of a party is derived from having seen such party write his signature once, may be admitted to testify his belief of the handwriting of such person, when it comes in question; but the rule cannot be extended beyond this.* A witness who has never seen a party write, and who has had no correspondence with him, and no knowledge of his handwriting, except that which he derived from letters written to others, which purported to have been written by the party, is not qualified to testify as to the handwriting of such party. Comparison of hands is not evidence per se ;'* except in the case of public officers, who have been so long dead, that better proof could not be expected.!" It is evidence, however, in civil cases, where it goes in corroboration of other evidence strongly tending to support the fact in dispute."® After evidence has been given in support of a writing, it may be compared with another, concerning which there is no doubt.!* 148. & R. 298. 1 19 Johns. 134. 2 1 Binn. 436. 12. 2N. & McC. 400. 3 22 Penn. St. 353. 133 P. & W. 437. 25 Penn. St. 133. #128. & R. 410. 14 26 Ponn. St. 388. 5 1 [bid. 291, 1 W.0. 0. 144, 1 28 Ibid. 318. 6 15 Penn. St. 51. 16 1 Pears. 467. 1 22 Ibid. 353. 7148. & R. 372. 3 Phila. 55. 8 13 Penn. St. 641. 1 Greenl. Evid. 3 577. %10S.&R.110. 1P.& W. 161. 3 W. 321. 9 3 Binn, 192. 28. & R. 80. 19 6 Whart. 231. 43 Penn. St.9. 2 Gr. 306. 10 3 Binn. 192. EVIDENCE. 427 The jury may compare an alleged forged paper with other admitted genuine signa- tures, which have been given in evidence ;! but witnesses cannot be allowed to do so. An expert may testify as to his opinion, whether the body and signature of an instrument was written by the same person ;° or as to whether a signature is genuine or simulated ;* but he cannot be permitted to give his opinion as to the handwriting of a party where his only knowledge on the subject is acquired from seeing the party write, during the trial, at the request of counsel.’ A comparison of handwriting can only be made by the jury: it is not allowed as independent proof ;® experts are not competent to make the comparison, and give their opinion to the jury.’ To authorize the admission of a writing offered as a test or standard, nothing short of proof by a person who saw the party write the paper, or an admission by the party of its genuineness, or evidence of equal authority, is sufficient. VIII. Hearsay. The few instances in which hearsay evidence can be admitted, are such as are in their very nature incapable of positive and direct proof. Of this kind are all those which can only depend on reputation. The excluding of hearsay evidence in ques- tions of pedigree, would prevent all testimony whatever. There is no other way of knowing the evidence of deceased persons, but by the relation of others, of what they have been heard to say. In these cases, therefore, the law departs from its general rule, and receives evidence of the declarations of deceased persons, who from their situation were likely to know the facts.® To prove pedigree, evidence may be given of hearsay, a great length of time before any dispute had arisen. And hearsay evidence has been admitted to provea party’s ancestors to have beeu Indians." Pedigree includes not only descent and relationship, but also the facts of birth, marriage and death; which may be established by general report in the family, proved by a surviving member.” The recitals in an ancient deed are evidence to prove pedigree. The declarations of a former owner, in relation to the boundary of the land of which he was in possession, are competent evidence; but they are not evidence of his right to hold by a different line from that by which he was then holding. The declarations of a deceased person touching the locality of a boundary between adjoining owners, have been admitted in evidence, where the survey was made by the person making the declarations, or where they were made by an adjoining owner, who pointed out the line at the time. But the declarations of a deceased person who did not make the original survey, nor subsequently examine it, or run the lines upon the ground, and who was not an adjoining owner, and did not point out the lines at the time, are not admissible. The admission of such declarations is not to be extended beyond the cases already adjudicated.” A vendor’s declarations, after he has parted with the title, are not evidence to impeach the title of his vendee.6 The declarations of a person not in possession of the land, nor the owner of it at the time the declarations are made, cannot be received to impeach a title derived from such person; especially, if not made in the Cn of the party against whom they are offered, nor communicated to him after- wards!" The declaration of a party made to a third person after he has remitted money, of the kind and amount sent, is inadmissible as part of the transaction.* Where a son receives money from his father to enable him to embark in business, and gives his note for the amount, at the time, the transaction cannot be changed from a loan 1 14 Phila. 11. 111 W. C. C, 123. 215 Ibid. 233, 12°77 Penn. St. 507. And seel Ibid. 381. 25 3 90 Penn. St. 89. Pitts. L. J. 158. 4 15 Phila. 233. 13 1 Dall. 64. 1Y. 500. 56 Penn. St. 132. 64 5 90 Penn. St. 89. And see 96 Ibid. 489. Ibid. 376. © 57 Ibid. 438. 82 Ibid. 211. 3 Brewst. 176. 14 32 Penn. St. 302. 45 Ibid. 495. 713 W. N.C. 79. % 27 Ibid. 333. 8 6 Whart. 284. 7 Penn. St. 428. 43 Ibid. 9. 16 33 Ibid. 411. : Feeko Evid. 11, 1 Whart. Evid. 3 201. 17 28 Ibid. 492. Dall. 14, 1 Wall. Jr. C. C. app’x 3. 18 Thid. 501. 428 EVIDENCE. to a gift or advancement by the loose declarations of the father, that he gave the money to his son. ; A witness called to state what was sworn at a former trial by another witness, since dead, may testify to the substance, and need not state the exact words of the witness.? The same rule applies when the witness is out of the state.’ The notes of counsel showing what a deceased witness testified on a former trial between the same parties, touching the same subject-matter, are evidence, when proved to be correct in substance ; although the counsel does not recollect the testimony inde- pendently of his notes, and does not recollect the cross-examination.* LX. WITNESSES. The attendance of a witness in civil cases is compelled by means of a subpena, which is a judicial writ, commanding the witness to appear at the trial to testify for the plaintiff or defendant, under pain of forfeiting [one hundred dollars] in case of disobedience. If a witness wilfully neglect to attend upon the subpena, he is guilty of a contempt of court, for which he is liable to an attachment. He is also liable to damages at common law, in an action on the case by the party injured. There is no privilege from the service of a subpena.® Where an instrument is in the hands of a third person, the production is com- pelled by means of a writ of subpana duces tecum. By this writ the witness is compellable, it seems, to produce all documents in his possession, unless he have a lawtul or reasonable excuse to the contrary—of the validity of the excuse the court [or justice], and not the witness, is to judge’? Buta subpcena with a duces tecum cannot issue to a public officer to bring original papers into court, when certi- fied copies would be evidence.® General Rules. By the principles of the common law, every person not in- terested and not of infamous character, may be a competent witness.® Every witness is presumed to be competent, until the contrary is shown,” and this is especially so, since the passage of the act of 1849." Persons excluded by reason of infamy, are such as have been convicted of treason, felony, or the crimen falsi.’ A conviction of the offence of conspiracy to cheat and defraud creditors does not disqualify ;* nor of receiving goods knowing the same to have been stolen ;* nor of embezzlement as a public officer ; nor of an assault and battery with intent to kill. A pardon restores the competency of the party as a witness.” And the revised penal code provides that where any person shall be convicted of any felony, not punishable with death, and shall endure the punish- ment to which such offender shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted; with a proviso that it shall not extend to the case of a party convicted of wilful and cor- rupt perjury.” A conviction of highway robbery,’ in the quarter sessions, will not render the defendant incompetent as a witness; the court being without jurisdic- tion, the conviction is coram non judice.” Insane persons, idiots, and lunatics, during their lunacy, are incompetent wit- nesses; but lunatics, in their lucid intervals, when they have recovered their understandings, are competent.” A lunatic, under confinement in a lunatic asylum, is admissible as a witness, if the judge consider him competent in point of under- standing, and to be aware of the nature and sanction of an oath? It is no objec- 1 29 Penn, St.. 125. 18 33 Penn. St. 463. 7108.4 R.14. 14 3 Clark 290. 3 4 Ibid. 419. And see 96 Penn. St. 48, 15 67 Penn. St. 386. 72 Ala. 142. 4 27 Penn. St. 30. 47 Ibid. 300. 163 W.C. C. 99. See act 16 April 1849, dis- 517. & H. Pr. 2 645. 1 Whart. Evid. 3377. qualifying persons convicted uf arson, &¢. 6 4 Dall. 341. Nothing but extreme poverty, Pamph. 665. or utter inability to attend, will excuse disobedi- 17 2 Whart. 453. 1 G@r.329, 2 Or. C.C. 528 ence to a subpoena. 15 Wend. 602. 41 Ala. 405. And see 51 Penn. St. 332. 2 1 4 Dall. 86-7. Wheeler’s Cr. Cas. 451. 33 N. H. 388. 81 Y. 403. 18 Act 31 March 1860 3 181. Purd. 563. 9 2 Binn. 165. 19 85 Penn. St. 139. 10 59 Penn. St. 281. 1 Phila.179. 2Ibid. 114. 2 1 Whart. Evid. 2 402. 25 Gratt. 865. 70 Penn. St. 183. 15 Cox C.C.254. 10 Allen 63. 107 U.S. 521. 131 Whart. Evid. 2397. 3 W. & 8. 342, EVIDENCE. 429 tion to the competency or credibility of a witness, that he is subject to fits of derangement, if sane when examined.? . A person laboring under a temporary privation of understanding from intoxication is regarded as a voluntary madman, whom the court will not permit to testify ; but there are various degrees of intoxication, all of which do not disqualify a man to remember and relate the truth; it belongs to the judge [or justice] to determine whether the situation of the witness is such, as to require that he should be excluded from giving testimony.’ But to exclude a witness, it is not enough that he has been found an habitual drunkard, under the statute.’ The use of opium cannot be intro- duced to impair credit, unless it be shown that the witness was under the influence of opium, when examined, or when the litigated event occurred.‘ Witnesses must be persons possessed of reason and understanding, and acquainted with the nature and obligation of an oath; therefore, children of a very early age cannot be witnesses.6 But a child may be examined, though ignorant of the, nature of an oath, if there be a belief in a state of rewards and punishments, and a conviction that punishment will follow falsehood. Wherever there is intelligence enough to observe and narrate, then a child, a due sense of the obligation of an oath being shown, can be admitted to testify." The question is entirely one of intelligence, which, whenever a doubt arises, the court will determine to its own satisfaction, by examining the infant as to his knowledge of the nature of an oath, and the religious and secular penalties of perjury.* Deaf and dumb persons are competent, if of sufficient understanding? Athiests and such infidels as profess no religion that can bind their consciences to speak the truth, are excluded from being witnesses.19 Persons who do not believe in the existence of a God, or of a future state of existence, are not competent wit- nesses." To render a witness competent, he must believe in a God who will reward and punish according to our deserts ; whether the punishment will be temporary or eternal, inflicted in this world or that to come, is immaterial on the question of competency.” A disbelief in a future state goes only to the credibility of the wit- ness.* Nor is it cause of exclusion, that the witness does not believe in the inspired character of the Bible; in such case, the judge or justice must judge whether the credibility of the witness be affected by his belief in the extent of the penalty to be incurred by false swearing, and his disbelief in the Christian religion.!® Where a witness is objected to, on the ground of disbelief in a God, and a future state of rewards and punishments, he is not to be examined on oath respecting his religious sentiments, but will be permitted to explain them.’® Jt would be an absurdity to swear a person, in order to determine whether he can be sworn.” The presumption, however, is in favor of a competent religious faith ; the want of it must be clearly established by the party objecting to the competency of the witness. But if the want of such religious belief be avowed by the witness in open court, or if all the testimony, in one unbroken chain, show it, the witness must be rejected. If, however, there be a conflict of testimony on the point, it must be referred to the jury, as a question of credibility. It is the present belief of the witness that determines his competency; proof of a prior want of belief only goes to his credi- Sility.» Except upon a preliminary hearing before a magistrate for the purpose of deter- mining whether a person charged with a criminal offence triable in the court of oyer and terminer ought to be committed for trial, and except also upon a hearing under habeas corpus for the purpose of determining whether bail ought to be taken upon a 1 7 Wheat. 453, 9 8 Conn. 93. 17. & H. Pr. 3 643. 1 Stark. 22 Penn. St. 89. And see 16 Johns. 143, 6 Evid. 92 n. Tred. 96. 10 Bull. N. P. 292. 2 Brewst. 378. 8 15S. & R. 235. Onewho does not believe in 1! 5 Mason 16. 4 Or. C. C. 446. 7 Haz. Pa. a personal God, nor in God asan entity, is incom- Reg. 112. 18 Johns. 98. 17 Wend. 460. petent; something more is required torender a 32 3 McLean 174, 1 Haz. U.S. Reg. 87, 2 W. witness competent, than a belief in a supreme & S. 262. power, simply as a power or principle. 40 Leg. 18 2 W. & 8.262. 26 Penn. St. 274. 2 Cow. 431, Int. 5 4 3 McLean 174. 426 Ga, 528. 15 26 Penn. St. 274, 5 10 Johns. 362. 16 5 Or. C. C. 38. 6 | Browat. 352. 2 Ibid. 404. 17 1 Whart. Evid. 3 396. 71 Whart. Evid. 3 398. 18 2 Brewst. 378. § Ibid. 2 399. 1 5 Or. C. C. 38, 430 EVIDENCE. commitment for murder in the first degree, or for the purpose of determining in any case how much bail ought to be required, or for the purpose of determining in any case whether a person committed for trial ought to be further held, and except also upon hearings before a grand jury ; in none of which cases shall evidence for the de- fendant be heard; and except also as provided in section two of this act, all persons shall be fully competent witnesses in any criminal proceeding before any tribunal. In such criminal proceeding, (a.) A person who has been convicted in a court of this commonwealth of perjury, which term is hereby declared to include subornation of perjury, shall not be a com- petent witness for any purpose, although his sentence may have been fully complied with, unless the proceedings be one to punish or prevent injury or violence attempted, done or threatened to his person or property, in which cases he shall be competent to testify. (b.) Nor shall husband and wife be competent or permitted to testify against each other, or in support of a criminal charge of adultery alleged to have been committed by or with the other, except that, in proceedings for desertion and maintenance and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, each shall be a competent witness against the other, and except also that each shall be competent merely to prove the fact of marriage in support of a criminal charge of adultery alleged to have been committed by or with the other. (c.) Nor shall either husband or wife be competent or permitted to testify to confi- dential communication made by one to the other, unless this privilege be waived upon the trial. (d.) Nor shall counsel be competent or permitted to testify to confidential commu- nications made to him by his client, or the client be compelled to disclose the same, unless in either case this privilege be waived upon the trial by the client.’ Whenever any person has been examined as a witness, either for the commonwealth or for the defence, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross- examine, if such witness afterwards die, or be out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he become incom- petent to testify for any legally sufficient reason properly proven, notes of his exami- nation shall be competent evidence upon a subsequent trial of the same criminal issue ; but, for the purpose of contradicting a witness, the testimony given by him in another or in a former proceeding may be orally proved.® In any civil proceeding before any tribunal of this commonwealth, or conducted by virtue of its order or direction, no liability merely for costs nor the right to compensa- tion possessed by an executor, administrator or other trustee, nor an interest merely in the question on trial, nor any other interest, or policy of law, except as is provided in section five of this act, shall make any person incompetent as a witness.‘ Tn such civil proceeding, (a.) A person who has been convicted in a court of this commonwealth of perjury, which term is hereby declared to include subornation of perjury, shall not be a com- petent witness for any purpose, although his sentence may have been fully complied with, unless the judgment of conviction be judicially set aside or reversed, or unless the proceeding be one to redress or prevent injury or violence attempted, done or threatened to his person or property, in which cases he shall be permitted to testify. (6.) Nor shall either husband or wife be competent or permitted to testify to confi- ae ee made by one to the other, unless this privilege be waived upon the trial. (c.) Nor shall husband and wife be competent or permitted to testify against each other, except in those proceedings for divorce in which personal service of the sub- pena or of a rule to take depositions has been made upon the opposite party, or in which the opposite party appears and defends, in which case either may testify fully against the other, and except also that in any proceedings for divorce either party may be called merely to prove the fact of marriage. ‘ (d.) Nor shall counsel be competent or permitted to testify to confidential commu- 1 Act 23 May 188721. Purd. 846, 8 Ibid. 2 3. 2 Ibid. 2 2. 4 Act 23 May 1887 34. Purd. 817. EVIDENCE, 431 nications made to him by his client, or the client be compelled to disclose the same, unless in either case this privilege be waived upon the trial by the client. (e.) Nor where any party to a thing or contract in action is dead, or has been ad- judged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the sub- ject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy, unless the proceeding is by or against the surviving or remaining partners, joint promisors or joint promisees, of such deceased or lunatic party, and the matter occurred between such surviving or remaining part- ners, joint promisors or joint promisees and the other party on the record, or between such surviving or remaining partners, promisors or promisees and the person having’ an interest adverse to them, in which case any person may testify to such matters ; or, unless the action be ejectment against several defendants, and one or more of said defendants disclaims of record any title to the premises in controversy at the time the suit was brought, and also pays into court the costs accrued at the time of his dis- claimer, or gives security therefor as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness ; or, unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses. (f.) But no person who is not competent under clauses (a.) (.) (c.) and (d.) of this section, shall become competent by the general language of the clause (e.).1 Any person who is incompetent under clause (e.) of section five, by reason of in- terest, may nevertheless be called to testify against his interest, and, in that event, he shall become a fully competent witness for either party ; and such person shall also be- come fully competent for either party, by a release or extinguishment, in good faith, of - his interest, upon which good faith the trial judge shall decide as a preliminary question.” In any civil proceeding, whether or not it be brought or defended by a person representing the interests of a deceased or lunatic assignor of anything or contract in action, a party to the record or a person for whose immediate benefit such proceeding is prosecuted or defended, or any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination, subject to the rules of evidence applicable to witnesses under cross- examination, and the adverse party calling such witnesses shall not be concluded by his testimony ; but such person so cross-examined shall become thereby a fully compe- tent witness for the other party as to all relevant matters, whether or not these matters were touched upon in his cross-examination ; and also, where one of several plaintiffs or defendants, or the person for whose immediate benefit such proceeding is prosecuted or defended, or such other person having an adverse interest, is cross-ex- amined under this section, his co-plaintiffs or co-defendants shall thereby become fully competent witnesses on their own behalf as to all relevant matters, whether or not these matters were touched upon in such cross-examination.* In any civil proceeding, the testimony of any competent witness may be taken by commission or deposition, in accordance with the laws of this commonwealth and the rules of the proper court.* Whenever any person has been examined as a witness in any civil proceeding before any tribunal of this commonwealth, or conducted by virtue of its order or direction, if such witness afterwards die, or be out of the jurisdiction, so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he become incompetent to testify for any legally sufficient reason, and if the party against whom notes of the testimony of such witnesses are offered had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine, properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be afterwards formed between the same parties and involving the same subject-matter as that upon which such witness was so examined ; but for the purpose of contradicting 1 Act 23 May 1887 35. Purd. 817. * Thid. 2 7. ITbid. 36. Purd. 818. 4 Thid. ¢ 8. 432 EVIDENCE. a witness, the testimony given by him in another, a former proceeding, may be orally proved. : Except defendants actually upon trial in a criminal court, any competent witness may be compelled to testify in any proceeding, civil or criminal ; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to criminate him ; nor may the neglect or refusal of any defendant, actually upon trial in a criminal court, to offer himself as a witness, be treated as creating any presump- tion against him, or be adversely referred to by court or counsel during the trial.’ Hereafter in any civil proceeding before any tribunal of this commonwealth, or con- ducted by virtue of its order or direction, although a party to the thing or contract in action may be dead or may have been adjudged a lunatic, and his right thereto or therein may have passed, either by his own act or by the act of the law, to a party on a record who presents his interest in the subject in controversy, nevertheless any surviving or remaining party to such thing or contract or any other person whose in- terest is adverse to the said right of such deceased or lunatic party, shall be a compe- tent witness to any relevant matter, although it may have occurred before the death of said party or the adjudication of his lunacy, if and only if such relevant matter oc- curred between himself and another person who may be living at the time of the trial and may be competent to testify, and who does so testify upon the trial, against such surviving or remaining party or against the person whose interest may be thus ad- verse, or if such relevant matter occurred in the presence or hearing of such other living or competent person.* The testimony now made competent by the foregoing section may also be taken by commission or deposition, in accordance with the laws of this commonwealth and the rules of the proper court, and, in that event, the deposition thus taken, shall be com- petent evidence at the trial or hearing, although the person with whom or in whose presence or hearing such relevant matter occurred, may die or become incompetent after the taking of such deposition.‘ No person shall hereafter be incompetent to give evidence in any suit or action in which any school district, or any officer thereof is a party, for or on account of said person being an inhabitant of the district, or by reason of his being liable to the pay- ment of any tax in which said school district may be interested.® An attorney is a competent witness for his client, though the amount of his fee de- pend on his success in the cause ;® and he is competent, although he has opened his client’s case and cross-examined winesses.” Attorneys to whom facts are related professionally during a cause or in contempla- tion of it, are neither obliged nor permitted to disclose the facts so divulged, during the pendency of that cause, or at any future time; and if a foreigner, in communi- cating with his attorney, have recourse to an interpreter, he is equally bound to secrecy. But where the attorney himself is, as it were, a party to the original trans- action, as if he attest the execution of a fraudulent deed, or was employed as an agent, and did not gain his knowledge merely by the relation of the client, the rule does not apply. The privilege does not extend to a student in the attorney’s office.” In a criminal prosecution, an attorney cannot be compelled to produced a document, placed in his hands, professionally, by his client. ! A conveyancer is not entitled to the privilege of counsel as to confidential communi- cations; he is bound to testify." An attorney even is competent to testify as to the instructions given him in reference to the drawing of a deed.!”? So, a confidential agent or factor is not privileged from testifying.” and a notary-public may be compelled to testify against the truth of his certificate of protest. The court will not compel a witness, on cross-examination, to disclose a trade secret ; but, it seems, that in such case, his direct examinations may be stricken out. No person shall be deemed and adjudged an incompetent witness on the trial of any indictment, for or by reason of such person being entitled, in the event of the convic- 1 Aot 23 May 1887 29. Purd. 818. 847. R. 481, 754. And see 3 Y. 4, 12 Penn. 2 Thid. 2 10. St. 304. 3 Clark 199. 8 Act 11 June 1891. Purd. 819. 9 Pet. OC. C. 356. 4 Ibid. 2 2. 1011 W. N.C. 34. 5 Act 8 May 1854, Purd. 817, 1 5 Clark 149. 61 Dall. 241. 18.&R.32. 17 Ibid. 312, 8 128 Luz. L. Reg. 129. See 5 Cr. 0. C. 546. Penn. St. 520. 12 Ibid. 235. 131 Dall. 439, 2 W.C. C. 388. 172 Penn. St. 228. 1 Cush. 519. 41298. & R, 284, 11 W. N.C. 191. EVIDENCE. 433 tion of the defendant, to a restitution of his property feloniously taken, or the value thereof; or, if fraudulently obtained, to a pecuniary remuneration or compensation therefor ; or for or by reason of such witness being liable and subject to the payment of the costs of prosecution.! Upon the trial of any indictment for making or passing, and uttering any false, forged or counterfeit coin, or bank-note, the court may receive in evidence, to establish either the genuineness or falsity of such coin or note, the oaths of affirmations of wit- nesses, who may, by experience and habit, have become expert in judging of the genuineness or otherwise, of such coin or paper, and such testimony may be submitted to the jury, without first requiring proof of the handwriting or the other tests of genuineness, as the case may be, which have been heretofore required by law; and in prosecutions for either of the offences mentioned or described in the 164th, 165th, 166th and 167th sections of the “ Act to consolidate, revise and amend the penal laws of this commonwealth,’’ the courts shall not require the commonwealth to produce the charter of either of said banks, but the jury may find that fact upon other evi- dence, under the discretion of the court.? In all cases of arrest, upon warrant, of any person charged with any crime of a grade of which the court of quarter sessions has jurisdiction, the defendant, upon the preliminary hearing before the magistrate, may subpcena and produce and examine witnesses in his or her behalf. No witness in any case who enters his or her recognizance, in such sum as the magistrate may demand, to appear and testify in such prosecutions as require his testimony, shall be committed to prison by the judge, alderman or magistrate before whom any criminal charge may be preferred: Provided, however, That in all cases triable in the oyer and terminer, where a positive oath is made, reduced to writing and signed by the deponent, setting forth sufficient reasons or facts to induce the firm belief on the part of the judge, magistrate or alderman, that any witness will abscond, elope or refuse to appear upon the trial, that then and in such case the judge, magis- trate or alderman may exact bail of said witness to testify.* Execution, its Serbice and Meturn, 1. Form of an execution for debt. VI. Judicial decisions relating to executions. II. Of the general authority of an execution. VII. Articles exempt from levy on an execu- III. Of the service of the execution—constable’s tion. return, and justice’s docket-entries. VIII. .Form of an execution, and constable’s re- IV. Legal requirements in an execution. turn against a corporation. V. Of the right to enter bail, after an execu- IX. Form of an execution, &c., in trespass. tion shall have issued. I. ForM oF AN EXECUTION FOR DEBT. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania. To the constable of the Second Ward, or to the next constable of the said city, most con- venient to the defendant, greeting: Wuersas, [A. B.], on the [first] day of [May], 1880, obtained judgment before the sub- scriber, J. B., one of our magistrates in and for the said city, against [C. D.], for the sum of [twenty-five] dollars [ten] cents, together with [one] dollar [20] cents costs, which judgment remains unsatisfied: Therefore, we command you that you levy the said debt, and the interest thereon, with the said costs, on the goods and chattels of the said debtor, and indorse hereon the time you make your levy, and, hereon, or on a schedule to be hereto annexed, a list of the same, and, within twenty days from the date hereof, expose the same to sale, by public vendue, you having given due notice thereof, by three or more advertise- ments, put up at the most public places in your ward, and returning theoverplus, if any, of the said sale, to the said debtor.* And of your proceedings herein, together with this execu- tion, make return to our said magistrate, on or before the [twenty-first] day of [May], 1880. Witness our said magistrate, at Philadelphia, who hath hereunto subscribed his name, and affixed his seal, the [first] day of [May], Anno Domini 1880. J. B., Magistrate. [sEAL.] Constable's return. Money paid into office, May 12th. J. H., Constable.” If the judgment be for the recovery of money collected by any public officer, or for official misconduct (the only cases arising from contract in which a justice is 1 Act 31 March 1860 3 52. Purd. 815. 3 Act 13 April 1867. Purd. 816. 4 Thid. 2 55. 28 4 Act 31 March 1860 2 56. Ibid- 434 EXECUTION. empowered by the act of 1842, to issue an execution authorizing the arrest or imprisonment of the person), then the following clause should be inserted after the *— _ And for want of sufficient distress, that you take the body of the said debtor into cus- tody, and him convey to the debtor’s apartment, there to be kept by the sheriff or keeper thereof, until the debt, interest and costs hereon indorsed, be fully paid. II. The form of an execution for debt, here given, is believed to embrace all the provisions and requirements of the acts of assembly. A careful perusal of the process, as in most other cases, will enable the constable faithfully to discharge his duty. See tit. Actions at Law, VI. III. The constable is not authorized in any case, even where arrest in execution has not been abolished by law, to take the defendant into cystody, unless there be a “want of sufficient distress.” If the debtor shall give the constable “ goods and chattels,” or valuables of any kind, out of which he is satisfied he can make the debt, interest and costs, called for by his execution, then the constable has no right “to take the body of the debtor into custody.” But if he cannot give such property of his own, on which the constable may levy and make sale, then he is authorized and commanded to convey him “to the debtor’s apartment.’ Having delivered the debtor to the keeper, he will indorse the execution in this manner: “I certify that the within-named defendant is in my custody, W. B., keeper of the debtor’s apartment, August 10, 1870,” which execution, so indorsed, being returned to the justice, shall be “‘ deemed sufficient,” and the constable, on the docket of the justice, be discharged from all responsibility on the said execution. The justice should in this, as in all other cases where the constable makes a written return, enter it on his (the justice’s) docket, in the very words in which it is indorsed on the execution or other process. Every execution should, when returned by the constable, be indorsed in such a way, that the indorsement may be a proper return to the execution, when entered on the docket of the justice. For example, “ Money paid into office.’”’ “No goods.” ‘‘ Levied, and not sold for want of time.” “ Levied, and not sold for want of indem- nity, the goods levied on being claimed by a third person, D. M.” ‘ Levied, sold and money paid into office.’ ‘ Money paid to plaintiff, whose receipt is on the back of the execution.” ‘Bonded and discharged by the prothonotary.” Every return made by the constable should be signed with his name as constable, and dated. Whenever a constable pays money into office on an execution, the justice should indorse it, ‘Paid into office.” This would prevent almost the possibility of error, misunderstanding or mistake, in relation to the payment of money into the office. This occasion is embraced to recommend that there shall be no accounts kept, no lending nor borrowing between the magistrate and the constables. Whenever either shall receive any money which should be paid over to the other, let it be done with all possible promptitude. IV. By the 22d section of the act 20th March 1810, it is provided, that ‘no execution, issued by a justice, shall be set aside for informality, if it shall appear, on the face of the same, that it is issued: 1. ‘In the name of the commonwealth of Pennsylvania :’ 2. ‘ After the expiration of the proper period of time’ [for which it may have been stayed by the entry of bail, plea of freehold, or any other privilege which the defendant may have claimed and been allowed, or by agreement of parties]: 3. ‘And for the sum for which judgment had been rendered, together with interest thereon and costs:’ 4, ‘ And a day mentioned on which return is to be made by the constable:’ 5. ‘And that the cause of action shall have been cognisable before a justice of the peace.” A justice of the peace who has his blank executions printed in a correct manner can hardly fail to fill them up so as to meet all which the law requires. V. If the execution shall issue before twenty days after judgment shall Lave been rendered, still the defendant within that time has a right to enter bail for stay EXECUTION. 435 of execution, or an appeal on payment of the “costs accrued on the execution,” and for putting in bail. The same privilege, under the like payment of costs, may be exercised by a freeholder, at any time before the expiration of the stay of execution allowed by law, on the amount for which judgment had been entered against him! VI. When a justice has opened his judgment, on the affidavit of the defendant, that he was absent from home when the summons was served, &., and a re-hearing has been had, and the former judgment is confirmed, the stay of execution runs from the day on which the dust judgment was entered? A defendant is not entitled to stay of execution upon a judgment obtained against him as bail for stay of exe- cution on any former judgment ;° nor in an action of debt on a judgment obtained in another state ;* nor on any judgment for $100 dollars or less, if recovered for wages of manual labor.® A constable cannot presume to disobey an execution issued by a justice, on the ground of irregularity in the proceedings, as, where the case was commenced b attachment without a legal bond having been given; if he do so, he will be liable to the plaintiff.* Goods distrained, but replevied, may be taken in execution.? Stock in a bank or other corporation, standing in the name of a defendant in an execution, is not liable to be sold as his, under the act of 29th March 1819, if it actually be the property of another.’ A loan of personal property, subject to be turned into a sale, by a compliance with certain conditions, does not vest in the bailee such an ownership as subjects the property to levy and sale upon an execution for his debt.° No execution issued by a justice of the peace shall be a lien on the property of the defendant before a levy made thereon.” An actual seizure is generally neces- sary to constitute a valid levy of goods, yet the defendant may dispense with it for his own accommodation; and if he do so, as between him and the officer, the levy is good." To constitute a good levy on personal property, it is not necessary that an inventory should, in the first instance, be made of it, or that the sheriff [or constable] should immediately remove the goods, or put a person in possession of them. If they are within the power or control of the sheriff [or constable] when the levy is made, it will be good, if followed up, within a reasonable time, by his taking possession of them in such a manner as to apprise everybody of the fact that they have been taken in execution.” A constable having several executions against the same defendant in his hands, at the same time, makes a levy, and indorses a schedule of the goods levied on one of the executions ; this is a good levy on all the executions. Where a constable levies an execution issued by a magistrate, on personal property, and afterwards suffers it to be removed beyond his bailiwick, upon a bond given by a third person to restore it at a given time, the lien of his execution is abandoned, as against an intervening levy of another execution-creditor. The mere removai of the property beyond the constable’s bailiwick, with his consent, is an abandon- ment of the lien of his execution, as against the lien of another execution-creditor, not a party to the transaction.’* If the constable suffer the goods to be removed, he becomes liable for their value to the plaintiff.* If a constable have reason to doubt about the ownership of property in the pos- session of a defendant in an execution, he may require the plaintiff to indemnify him ; and if he refuses to sell, not having done so, he becomes liable.’* A constable who remains in possession of the defendant’s premises, under an execution, more than a reasonable time, is liable to an action.” 1 Ash. 407. 10 Act 28 March 1820 34. Purd. 376. 2 Dall. 2 Com. Pleas, Phila. 1815. Ist. 3 25 April 1850, 3 28. Purd. 830, ll 6 W. 468. 42 Am. L. Reg. 446. 2 3R. 401. 5 Act 14 May 1874, Purd. 830, AndseelW. %%3P.& W. 230. N. C. 510. 142M. 81. 8 11 Leg. Int. 126. 435 37 Penn. St. 187. 72 Dall. 31. 16 8 W. 220. - 8 6 Whart. 117. 1714M. & W. 239, 8 Exch. 237. 11 Mete. 339. 436 EXECUTION. A sale of personal property by a constable upon an execution, gives a good title to the purchaser, although the same property had been levied by a prior execution in the hands of the sheriff. The controversy between the execution-creditors must be determined by an appropriation of the proceeds of sale! A sale of personal property by a constable on execution, made to the plaintiff in the execution, no person but the constable being present at the sale, is illegal and invalid ; there can be no public sale, without bidders and bystanders.? A constable cannot law- fully purchase at his own sale, and one deputed by him to make the sale is subject to the same disability ; but where the constable personally attends, and superintends the sale, and employs one merely as a crier, the latter may purchase at the sale.’ An execution is not abated by the plaintiff's death, but shall be proceeded in. The uniform practice, where a plaintiff dies after judgment, is for the executor to have himself substituted, without a scire facias, and even without an application to the court, and to take an execution when he is, in other respects, entitled to it. It is irregular to issue a second execution, until the first is returned, for the court [or the justice] ought to know what proceedings have been had on the first execu- ‘tion before they issue another.® Money collected upon an execution by a constable cannot be recovered back again from the officer, upon the allegation of its having been paid a second time.® After the defendant has been in execution upon a ca. sa., and discharged by consent of the plaintiff, the action is at an end ;’ but if a defendant be discharged at his own request, another execution may be issued.’ If the plaintiff consent to discharge one of several defendants taken on a joint ca. sa., he cannot afterward retake him, nor take any of the others.® Where a defendant, in custody on an execution, gives bond, with surety, to take the benefit of the insolvent laws, and forfeits his bond, a second execution may be issued against him. But if, when he is in custody under the second execution, the plaintiff discharges him from prison, without the assent of the surety, the debt is satisfied, and no action can be maintained against the surety upon the bond.” When a bond is forfeited by the failure, on the part of the debtor, to file his petition in time to be heard at the general period fixed for the term, execution ay be issued against him, the moment it can be legally ascertained that he has not complied with the terms of the law. VII. ARTICLES EXEMPT FROM LEVY. In lieu of the property now exempt by law from levy and sale on execution, issued upon any judgment obtained upon contract, and distress for rent, property to the value of three hundred dollars, exclusive of all wearing apparel of the defend- ant and his family, and all bibles and school-books in use in the family (which shall remain exempted as heretofore), and no more, owned by or in possession of any debtor, shall be exempt from levy and sale on execution, or by distress for rent." The sheriff, constable or other officer charged with the execution of any warrant issued by competent authority, for the levying upon and selling the property, either real or personal, of any debtor, shall, if requested by the debtor, summon three disinterested and competent persons, who shall be sworn or affirmed, to appraise the property which the said debtor may elect to retain under the provisions of this act, for which service the said appraisers shall be entitled to receive fifty cents each, to be charged as part of the costs of the proceedings; and property thus chosen and appraised, to the value of $300, shall be exempt from levy and sale on the said exe- cution or warrant, excepting warrants for the collection of taxes.” In addition to the property exempt by law, sewing-machines, owned by seam- stresses are exempted by the act of 1869. And this exemption is extended to 12 W. & S. 264. 105 R. 272. 215 Penn. St. 90. 111 Ash. 35, 3 20 Ibid. 342. 41 Ibid. 185. 12 Act 9 April 1849 2.1. Purd. 831. 4108S. & R, 119. 13 Tbid. 32. The constable is authorized to 52 Clark. 409. 2Am. Dig. 235. swear the appraisers, by act 8 April 1857. Purd. 685 W.&S. 459. 834, The fees are one dollar to constable and 74 Binn, 24, 82. each appraiser by act of 23 May 1893. 8 Act 16 June 1836 2 31. Purd. 831. 14 Act 17 April 1869, Purd. 834. 96T. BR. 525. EXECUTION. 437 sewing-machines used and owned by private families, by the act of 1870.1 And by the act of 1876, the exemption is extended to all leased pianos, melodions and organs. An unmarried defendant is entiled to the benefit of the act ;° but a non-resident debtor, liable to be sued by foreign attachment is not. The defendant, however, may claim the benefit of the act, as against: an attachment-execution ;° and in a suit com- menced by attachment, under the act of 1869.§ The defendant in an action for a tort is not entitled to the benefit of the act;7 but it embraces a judgment against the plaintiff for costs, in an action of tort.2 A consta- ble against whom execution is obtained for official misconduct or negligence, is not entitled to the exemption;® and no exemption is allowed upon a judgment for $100 or less, obtained for wages for manual labor,’ nor on a judgment for four weeks’ board.“ Individual partners are not severally entitled, under the act of 1849, to retain out of the partnership effects levied on, specific articles to the value of $300.2 The act must be so construed as to admit a dealer to enjoy $300 of his capital in trade; a new stock purchased with the proceeds of other articles retained under the exemption iaw, is protected.¥ _ A defendant cannot claim the benefit of the exemption law out of property which he has conveyed in fraud of his creditors; the conveyance, though void as to the creditors, is nevertheless conclusive on the debtor for all purposes; he cannot claim to have goods set apart to him, to which he disclaims title. If he falsely deny to the constable his ownership of the property levied on, he forfeits his right under the exemption law.’ The exemption may be claimed out of any bank-notes, money, stocks, judgments, or other indebtedness to the defendant in the execution.” The exemption of property to the amount of $300, from execution, is a privilege which may be waived by the defendant; and when he does waive it in writing, he cannot afterwards claim it.* When made at the time the debt is created, the waiver is based upon the same consideration as that upon which rests the liability to pay, and is, therefore, irrevocable. A verbal agreement to waive the exemption, made without consideration, is not binding on the debtor.” And a prospective waiver is inoperative, unless made in clear and unequivocal language.“ The defendant cannot waive the exemption in favor of a junior lien-creditor, nor can he assign it to a third person ; any such arrangement is void, and amounts, pro tanto, to an abandonment of his claim.” The claim for the benefit of the exemption law, must be, generally, made in the case which is the instrument of affecting the sale.% Where several writs are in the constable’s hands at the same time, one demand is sufficient as to all, but the rule is different as to successive writs ; "4 he must claim the exemption against every execu- tion creditor.” During the temporary absence of the owner, any person left in charge of the prem- ises, and especially a child of proper age, is authorized to claim the benefit of the exemption law, in case of a levy under execution.” A demand by the defendant’s wife and counsel is sufficient.2”7 But a wife must show affirmatively that she is en- titled to claim as her husband’s agent; the mere existence of the marital relation is not enough.” 15 34 Penn. St. 187. 16 38 Penn. St. 190. And see 6 W. N. C. 539. 17 Act 8 April 1859. Purd. 834. See 36 Penn. 1 Act 1 March 1870. Purd. 834. This does not apply to those who keep sewing-machines for sale or hire, Ibid. 2 Act 13 May 1876. Ibid. 33 Gr. 30. 426 Penn. St. 351. 130. 6 W.N, C. 309. 5 38 Penn. St. 190. 63 Gr. 319. ° 4 Leg. Gaz. 401. 250. 761 Penn. St. 292. 3 Luz. L. Obs. 375. 82 Gr. 424. 2 Wood. 127. 9 29 Penn. St. 176. 10 Act 4 March 1887. Purd, 834, 11 Act 4 April 1889. Purd. 834. 12 42 Penn. St. 442. 1 Phila. 352, 13 30 Penn. St. 261. 1429 Ibid. 210. 51 Ibid. 90. 3Gr.30. 5 Phila. 17, 8 Ibid. 569, 68 Ibid. 217. 2 Penny. 44 Ibid. 206. 3 Gr. 319. 40 Leg. Int. St. 130. 75 Ibid. 417. 76 Ibid. 105. 186 W. 34, 21 Penn. St. 210. 23 Ibid. 93, 2 Pars. 279. 19 23 Penn. St. 93. 31 Ibid. 225. And see 40 Penn. St. 324. 201 Pitts. 197. 21 56 Penn. St. 161. 22 21 Ibid. 160. 32 Ibid. 160. 36 Ibid. 373. 11 W. N.C. 511. And see 42 Penn. St. 395. 48 Ibid. 315, 23 32 Penn. St. 276. 25 Ibid. 252. 249 Gr. 197, 375. 25 38 Penn. St. 190. 26 32 Ibid. 82. 273 Gr. 319. 68 Penn. St.213. 73 Ibid. 368. 28 2 Leg. Gaz. 125. 3 Gr, 132. 438 EXECUTION. The demand for an appraisement must be made at such a time as to cause no delay to the plaintiff; after the property levied on has been put up for sale, and the biddings have commenced, it is too late! It must be made before the day of sale, and unless under special circumstances, before the advertisements are put up.* The object of the legislature was, to prevent the sale of the property ; and every act or omission of the debtor, which amounts to an acquiescence in, or an affirmance of the sale, is in direct contravention of that object.® When the apparent value of the goods levied on is less than the amount exempted by law, it is unnecessary to make any further specification than is implied in the demand; at least, until after the appraisement.* The court or justice, may set aside the appraisement before the return of the writ, where it is manifestly below the market price.® If the appraisement be not publicly conducted, it is sufficient cause for setting it aside.® In no case can the defendant entitle himself to any portion of the proceeds of his personal property. The act speaks of property, not money. It requires him to elect the goods he wishes to retain, and have them appraised; and the property thus chosen and appraised shall be exempt from levy and sale.” If a debtor sell the property exempt from execution, the money is liable to attach- ment in the hands of the purchaser; and so are the damages recovered by him in an action of’ trespass for taking it in execution, for such recovery transfers the right ‘of property, and has the effect of a sale.® But the debt itself cannot be defalked against the plaintifi’s damages.® In case of non-compliance by the officer with the debtor’s claim to the exemption, his only remedy is by action.’? This decision appears to operate with great harshness against the unfortunate debtor, since the court have decided that the damages, when recovered, are liable to be attached. An officer refusing to allow the exemption, becomes a trespasser ab initio ;“ and either case or trespass will lie against him.” The following form of election and appraisement may be used : es a Execution issued by J. R., Justice. C 5 Debt, $50 and costs. 8S. S., Constable. I, C. D., the defendant above named, do elect to retain the following articles of per- sonal property, under the second section of the act of 9th April 1849, to wit: We, the subscribers, having been summoned by S. S., constable, to appraise the pro- perty retained by the above-named defendant, and having been respectively sworn or affirmed, do value and appraise the same as follows, to wit: VIII. ForM oF AN EXECUTION AGAINST A CORPORATION. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Fifth Ward, or to the next constable of the said city, most convenient to the defendant, greeting : Wuerzas, [A. B.], on the [first] day of [May] 1880, obtained judgment before the subscriber, J. B., one of our magistrates in and for the said city, against !the Philadelphia Bank], for the sum of [ninety] dollars [twenty] cents, together with [one] dollar [fifty] cents costs, which judgment remains unsatisfied: Therefore, we command you, that you levy the said debt, and the interest thereon, with the said costs, on the goods and chattels of the said bank, and indorse hereon the time you make your levy, and hereon, or on a schedule to be hereto annexed, a list of the same, and, within twenty days from the date hereof, expose the same to sale by public vendue, you having given due notice thereof by three or more advertisements, put up at the most public places in your ward, and returning the. overplus, if any, of the said sale, to the said bank. And of your proceedings herein, together with this execution, make return to our said magistrate, on or before the [twenty- aa day of [May] 1880. Witness our said magistrate, at Philadelphia, who hath hereunto subscribed nis name, and affixed his seal, the [first] day of [May], Anno Domini 1880. J. B., Magistrate. [seat] 119 Penn. St.. 255. 20 Ibid. 141. 25 Ibid. 7 19 Penn. St. 255-7. 182. 2 Pars. 279. 8 23 Ibid. 489, 4 39 Penn. St. 213. 56 Ibid. 402, 9 32 Ibid. 82. 8 21 Ibid. 247. 44 Ibid. 207. 10 19 Ibid. 255. 34 Ibid. 36. See 11 Paige 180. 4 32 Penn. St. 82. 11 28 Penn. St.238. 26 Ibid. 264. 42 Leg. Int 6 1 Phila. 348. ee —_——= 6 4 Ibid. 353. Bay es EXECUTORS AND ADMINISTRATORS, 439 - IX. ForM oF AN EXECUTION IN TRESPASS. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Fifth Ward, or to the next constable of the said city most convenient to the defendant, greeting : Waereas, (A. B.], on the [first] day of [May] 1880, obtained judgment before the sub- scriber, J. B., one of our magistrates in and for the'said city, against [C. D.], for the sum of [eighty-six] dollars [ten cents damages, in trespass, together with hwy dollars twenty] cents costs, which judgment remains unsatisfied: Therefore, we command you, that you levy the said debt, and the interest thereon, with the said costs, on the goods and chattels of the said defendant, and indorse hereon the time you make your levy, and hereon, or on a schedule to be hereto annexed, a list of the same, and, within twenty days from the date hereof, expose the same to sale, by public vendue, you having given due notice thereof by three or more advertisements, put up at the most public places in your ward, and returning the overplus, if any, of the said sale, to the said defendant. And for want of sufficient distress, that you take the body of the said defendant into custody, and him convey to the debtor’s apartment, there to be kept by the sheriff or keeper thereof, until the damages, interest and costs hereon indorsed be fully paid. And of your proceedings herein, together with this execution, make return to our said magis- trate, on or before the [sixteenth] day of [June] 180. Wirness our said magistrate, at Philadelphia, who hath hereunto subscribed his name and affixed his seal, the [twenty-sixth] day of [May], Anno Domini 1880. J. B., Magistrate. [smaz.] Constable's return.— No goods, and the defendant in custody. May 20th, 1880. G. W., Constable.” Cxecutors and Administrators. tL. Who shall be executors and administrators, III. Forms of summons, executions for execu- and their duties. i tors and administrators, and constable’s II. Statutes and judicial authorities. ’ return. I. AN executor is the person to whom another commits, by will, the execution of his last will and testament. An administrator is he to whose care the goods of a deceased person are committed for distribution by a public officer, called the ordi- nary in England, and the register of wills in Pennsylvania. If the execution be committed to a woman, she is called an executrix; if a woman take out letters of administration, she is called an administratrix. If the deceased leave a will, but name no executor, an administrator cum testamento annexo [with the will annexed] is appointed. In case of the death or renunciation of a sole executor, or the death of a sole administrator, the register appoints, in the former case, an administrator de bonis non [of the goods not administered] cum testamento annexo ; in the latter case, an administrator de bonis non. In England, and in many of the United States, an executor of an executor repre- sents the original testator; but the law is altered in Pennsylvania.’ An executor or administrator must give notice of his appointment.? Before letters are issued, he must file an affidavit setting forth as nearly as can be ascertained, the day and hour of the death of the decedent ;? he must file also an inventory and appraisement within thirty days after his appointment.‘ He must take the following oath, “ You do swear [or solemnly, sincerely and truly declare and affirm], that as executor of the last will and testament of A. B. [or as administrator of the estate of A. B.], deceased, you will well and truly administer the goods and chattels, rights and credits of said deceased, according to law; and also well and truly comply with the provisions of the law relating to collateral inheritances.’ Non-resident executors and administrators must likewise give bond, with two sufficient sureties, for the faithful performance of the duties of their office. 1 Act 15 March 1832. Purd. 575. 4 Act 15 March 1832. Purd. 583. 2 Act 24 February 1834. Ibid. 587. 5Tbid. Purd. 576, =e Act 15 May 1874. Ibid. 575. 440 EXECUTORS AND ADMINISTRATORS. II. Acr 24 Fepruary 1834. Purd. 594. Sror. 26. The executors or administrators of any person who at the time of his decease was a party, plaintiff, petitioner or defendant in any action or legal proceed- ing depending in any court of this commonwealth, shall have full power, if the cause of action doth by law survive to them, to become party thereto, and prosecute or defend such suit or proceeding to final judgment or decree, as fully as such dece- dent might have done if he had lived; and if such plaintiff or petitioner die after judgment or decree in his favor, his executors or administrators may proceed to execution thereupon, as such plaintiff or petitioner might have done if he had lived. Sor 27. The court in which any action or legal proceeding may be depending as aforesaid, shall have power to require, by a writ of scire facias, such executors or administrators, within twenty days after the service thereof, to become party to such action or proceeding, or to show cause, at the next succeeding term, why they should not be made party thereto, by judgment of the court, and further proceed- ings be had in such action or proceeding; but in every such case, the executors or administrators, who shall become party as aforesaid, shall be entitled to the continu- ance of such action or proceeding during one term. Sxor. 28. Executors or administrators shall have power to commence and prose- cute all personal actions which the decedent whom they represent might have com- menced and prosecuted, except actions for slander, for libels and for wrongs done to the person ; and they shall be liable to be sued in any action, except as aforesaid, which might have been maintained against such decedent if he had lived. Sxor. 29. The executors or administrators of every person who was the proprietor of any rent-charge, or other rent or reservation in nature of a rent, in fee or other- wise, as mentioned in the 8th section of this act, shall and may have an action of debt for the arrearages of such rent due to the decedent, at the time of his decease, against the person who ought to have paid such rent, or his executors or adminis- trators; or they may distrain therefor upon the lands or tenements which were charged with the payment thereof, and liable to the distress of such decedent so long as such lands or tenements remain and are in the seisin or possession of the tenant who ought to have paid such rent, or in the possession of any other person claiming the same, from or under the same tenant, by purchase, gift or descent, in like manner as such decedent might have done if he had lived. Sect. 30. The executors or administrators of any tenant for life, who shall die before or on a day on which any rent was reserved or made payable upon any demise or lease of any real estate, which determined on the death of such tenant for life, may have an action on the case, to recover from the lessee or under-tenant of such real estate, if such tenant for life die on the day on which the same was made payable, the whole, or, if before the day, a proportion of such rent for the last year, or quarter of a year, or other current period of payment, according to the time elapsed at the decease of such tenant for life as aforesaid. Sect. 31. No action or other legal proceedings, commenced by or against execu- tors or administrators, shall be abated or otherwise defeated, by reason of the death, dismissal, resignation or renunciation of.any one or more of them, nor by reason of ‘the annulling or revoking of the letters or powers granted to them, or any of them; but such suit or proceeding may be prosecuted to final judgment or decree, by or against such other person or persons as may have been joined with them in the administration, or by or against such person or persons as may be their successors therein, in all cases, in like manner as if no such change had occurred or act been done; and in all cases of the vacancy of the administration as aforesaid, the succes- sors therein shall be made party to such action or proceeding, in a manner provided by the 26th and 27th sections of this act. Sror. 33. No execution for the levy or sale of any real or personal estate of any decedent, shall be issued upon any judgment obtained against him in his lifetime, unless his personal representatives have been first warned, by a writ of scire fucias, to show cause against the issuing thereof, notwithstanding the teste of such execu- tion may bear date antecedently to his death. And in all cases where property, real or personal, of a decedent is sold upon an execution, and more money raised than is sufficient to pay off liens of record, the balance shall be paid over to the executor or EXECUTORS AND ADMINISTRATORS. 441 administrator for distribution; but before any such payment shall be made, such executor or administrator shall give bond, to the satisfaction of the court, conditioned for the legal distribution of such money: Provided always, That such money shall be distributed as the real estate of which it is the proceeds would have been. Sect. 35. In every case of an execution against the executors or administrators of a decedent, whether founded upon a judgment obtained against such decedent in his lifetime, or upon a judgment obtained against them in their representative character, if it shall be made to appear to the satisfaction of the court issuing such execution, that there is reason to believe that the personal assets are insufficient to pay all just demands upon the estate, such court shall thereupon stay all pro- ceedings upon such execution, until the executors or administrators shall have made application to the proper orphans’ court for the sale of the real estate of the dece- dent, or for the apportionment of the assets, or both, as the case may require. Secor. 37. The omission of an executor or administrator to plead to any action brought against him in his representative character, that he has fully administered the estate of the decedent or any other matter relative to the assets, shall not be deemed an admission of assets to satisfy the demand made in such action; also the omission of the plaintiff to reply to any such matter, when pleaded, shall not be deemed an admission of the want of assets as aforesaid, nor shall such omission otherwise prejudice either party. And no mispleading, or lack of pleading, by executors or administrators, shall make them liable to pay any debt or damages recovered against them in their representative character, beyond the amount of the assets which in fact have come or may come into their hands. Letters of administration, granted in a sister state, are a sufficient authority to maintain an action, in this state, to recover assets which were never liable to admin- istration here. But not to recover the choses in action of a non-resident decedent ; such choses and assets being subject to our jurisdiction ;1 the law in this respect, was intended to be altered by the act of 1832.2 But letters granted in a foreign country, confer no power to sue in this state. Since the act of [834, an action of trover will lie against executors, upon a con- version by their testator, in his lifetime ;* and so will any other personal action, except suits for slander, libel or wrong to the person. The executor of the plaintiff may be substituted, in case of his death, after the commencement of the action, without a scire facias, by suggesting the death upon the record.6 An administrator de bonis non may be substituted as plaintiff, in a jadgment obtained by the administrator whom he succeeds.’ And the substitution may be made at any time.® An executor is not bound to plead the statute of limitations ;? but where an estate is insolvent, each creditor has a right to oppose the bar of the statute, to the claim of another upon the fund. In an action at law against an administrator, to recover a debt of the decedent, the statute of limitations is a bar, although less than six years from the time it accrued, had elapsed at the decease of the debtor.” And in a proceeding in the orphans’ court for distribution, the limitation runs in favor of the estate, after the decease of the debtor, though the claim were not then barred.” An executor or administrator who, in good faith, prosecutes a claim of the estate, and fails, is not personally liable to the defendant for his costs ; the judgment for costs is against the estate only.’ Hxecutors (or administrators) who act with ordinary diligence and attention, are not liable for a loss of the funds of the estate , nor are they liable for the mismanagement or insolvency of their agents, which they could not foresee nor control. An executor who receives money of the estate, and pays it over to a co-executor who afterwards becomes insolvent, is not charge- 1 42 Penn. St. 467. 61 Ibid. 299. 8118. & R. 381. 2 Report of the Revisers of the Civil Code. 91 Ash. 352. 1 Whart. 66. 12 Penn. St. 67. 31 Dall. 456. 10 17 Penn. St. 433. 4 4 Phila. 87. 11 31 Ibid. 455. 63 Ibid. 249. See 93 Ibid. 182. 5 24 Penn. St.122. 59 Ibid. 327. 12°17 W. N. C. 17, 33. 6108. &R.110. 4 Penn. St. 232. 18 23 Ibid. 471. 3 Clark 426. 17 Penn. St. 385. 14 6 W. 185. A442 EXECUTORS AND ADMINISTRATORS. able with it, in favor of legatees, although he would be in favor of creditors.’ An administrator is chargeable with the amount of a note due to his intestate, for the collection of which he delayed the institution of suit for several years after his intestate’s death, when with proper diligence the debt might have been collected.? In an action by an administrator to recover a debt due to his intestate, the defendant will not be allowed to set off a debt due to him by the administrator, for services rendered to him in the course of his administration of the estate.” Executors (or administrators) will not be permitted, under any circumstances, to make profit for themselves out of the funds of the estate in their hands,* If an administratrix mix the funds of the estate with her own moneys, and employ both in trade, the parties in interest may, if they prefer it, insist on having a proportion- able share of the profits, instead of interest on the amount of trust funds so employed. ILI. Forms of suMMons, EXEcuTIONS, &c. SUMMONS FOR ADMINISTRATRIX AGAINST EXECUTORS. BEAVER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the township of S—, in the county of Beaver, greeting: We command you that you summon J. L. and E. W., executors of the last will and testament of T. B., deceased, so that they be and appear before J. R., one of our justices of the peace in and for the said county, on ——, the 8th of March, instant, at three o’clock in the afternoon of that day, to answer S. C., administratrix of T. C., deceased, of a plea of debt not exceeding three hundred dollars. Witness the said J. R., at S—— aforesaid, the lst day of March, a. p. 1880. J. R., Justice of the Peace. [sEat.] Constable's return.—‘‘ Served on both the defendants, personally, March 7th, 1880, ty producing to them the original summons, and informing them of the contents thereof, R. R., Constable." SUMMONS FOR SURVIVING EXECUTOR AGAINST ADMINISTRATORS WITH THE WILL ANNEXED. BEAVER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of L—— township, in the county of Beaver, greeting: We command you, that you summon J. L., J. D., and R. R., administrators of C. W., deceased. with the will of the said C. W. annexed, so that they be and appear before J. R., one of our justices of the peace in and for the said county, on the seventh day of July next, at ten of the clock in the forenoon of that day, to answer G. B., surviving executor of the testament and last will of D. B., deceased, of a plea of debt or demand not exceeding three hundred dollars. Witness the said J. R., as L—— township aforesaid, the thirtieth day of June, a. v. 1880. J. R, Justice of the Peace. [szaz.] Constable's return.— Served on R. R., by producing to him the original summons, and informing him of the contents thereof. J. L. and J. D. not found. “July 6th, 1880. R. R., Constable.” EXECUTION FOR EXECUTRIX AGAINST ADMINISTRATORS. BEAVER COUNTY, ss The Commonwealth of Pennsylvania, To the Constable of S—— township, in the county of Beaver, greeting: Wuenreas, M. L., executrix of the testament and last will of M. L., deceased, on the third day of May, obtained judgment before J. R., one of our justices of the peace in and for the county of Dauphin, against R. R., administrator of all and singular the goods and chattels, rights and credits, which were of W. C., deceased, for a debt of forty dollars, together with two dollars and ten cents costs, and the said W. W.and R. R. having hitherto neglected to comply with the said judgment; we command you that of the goods and chattels which were of the said W. R, in the hands and possession of the said W. W. and R. R., administrators as aforesaid, you levy the debt and costs aforesaid, if you find so much in their hands which were of the said W. R. at the time of his death to be admin- istered ; and if so much in their hands you find not, then the costs aforesaid cause you to 1 6 W. 250. 46 W. 250. 2 Thid. 46. 5 36 Penn. St. 174. 8 8 Ibid. 74. EXPLOSIVES. 443 be levied of the proper goods and chattels of them the said W. W. and R. R., and indorse hereon the time you make your levy, and hereon, or a schedule hereto annexed, a list of the same ; and within twenty days thereafter expose the same to sale by public vendue, having given due notice thereof by at least three advertisements put up at the most pubis places in your township, and returning the overplus, if any, to the said W. W. and . R.; and of your proceedings herein, together with this execution, make return to our said justice on or before the [fourth] day of November, a. p. 1880. Witness the said J. R., at S—— township aforesaid, the fifteenth day of October, a. p. 1880. J. R., Justice of the Peace. [sxaL.] EXECUTION FOR SURVIVING ADMINISTRATORS AGAINST EXECT TORS. BEAVER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of S—— township, in the county of Beaver, greeting: Waereas, H. L., surviving administrator of C. W., deceased, on the third day of May 1880, obtained judgment before J. R., one of our justices of the peace in and for the said county, against L. K. and R. R., executors of the testament and last will of S. B., deceased, for a demand of six dollars and fifty cents, together with one dollar and sixty-two cents costs, and the said L. K. and R. R. having hitherto neglected to comply with the said judg- ment ; we command you, that of the goods and chattels which were of the said S. B., in the hands or possession of the said L. K. and R. R., executors as aforesaid, you levy the debt and costs aforesaid, if so much in their hands you find which were of the said 8. B. at the time of his death to be administered they have ; and if so much in their hands they have not, then the costs aforesaid cause you to be levied of the proper goods and chattels of the said L. K. and R. R., and indorse hereon the time you make your levy, and hereon, or on a schedule hereto annexed, a list of the same, and within twenty days thereafter expose the same to sale by public vendue, having given due notice thereof, by at least three advertisements put up at the most public places in your township, and returning the overplus, if any, to the said L. K. and R. R.; and of your proceedings herein, together with this execution, make a return to our said justice, on or before the fourth day of November, a. pv. 1880. Witness the said J. R., at 8 township aforesaid, the fifteenth day of October, a. p. 1880. J. R., Justice of the Peace. [szaL.] Constable's return.—' Money paid into office, October 25th, 1880. G. H., Constable.” Cxplosibes. I. Carriage of explosives. II. Sale of explosives. I. Aor 23 May 1878. Purd. 503. Sror. 1. If any person shall enter into or upon any railroad train, locomotive, tender or car thereof, or into or upon any stage-coach, or other conveyance used for the carrying of freight or passengers, having in his custody, or about his person, any nitro-glycerine or torpedo, (or) shall carry or cause to be carried, other than as freight regularly shipped as such, such substance, material or device, upon such train, locomotive, tender, car, coach or other conveyance, such person shall be deemed guilty of a misdemeanor ; and upon conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment not exceed- ing three months, or either, in the discretion of the court. oe Sgor. 2. The conductor or persons having charge and control of any railroad train, coach or other conveyance for the carriage of freight or passengers, shall have power to arrest any party or parties, or person or persons, found violating the pro- visions of the first section hereof, and to detain such party or person until reaching some place, where such person or persons may be delivered to a constable or other police authority, to be taken before any magistrate having jurisdiction of crim- inal matters, there to be proceeded against by information, as in other criminal cases ; and it shall be lawful to prosecute such offenders in any county through which said public conveyance passes, without reference to the place where such offenders were arrested. 444 EXTORTION. II. Act 10 Junz 1881. Purd. 503. Scr. 1. Any person, who shall, knowingly and wilfully, sell or cause to be sold, to any person under sixteen years of age, any cannon, revolver, pistol or other such deadly weapon, or who shall knowingly and wilfully sell, or cause to be sold, to any such minor, any imitation or toy cannon, revolver or pistol so made, constructed or arranged as to be capable of being loaded with gunpowder or other explosive substance, cartridges, shot, slugs or balls, and being exploded, fired off and dis- charged, and thereby become a dangerous or deadly weapon, or who shall know- ingly and wilfully sell, or cause to be sold, to any such minor, any cartridge, gunpowder or other dangerous and explosive substance, shall, in every such case, be guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding three hundred dollars, The act 11 June 1885 (Purd. 503) prohibits the manufacture and sale of toy deadly weapons. Extortion, I. Remedy of party grieved for extorting ille- III. Penalty for extorting from travellers. gal fees. IV. Authorities and decisions. II. Provisions of the Penal Code. I. Act 28 Marcu 1814. Purd. 879. Szcr. 26. If any officer whatsoever shall take greater or other fees than is hereinbefore expressed, and limited, for any service to be done by him, after the first day of September next, in his office; or if any officer shall charge or demand, and take any of the fees hereinbefore ascertained, where the business, for which such fees are chargeable, shall not have been actually done and performed; or if any officer shall charge or demand any fee for any service or services, other than those expressly provided for by this act, such officer shall forfeit, and pay to the party injured, fifty dollars, to be recovered as debts of the same amount are recover-: able. And if the judges of any court within this commonwealth, shall allow any officer, under any pretence whatsoever, any fees under the denomination of cow- pensatory fees, for any service not specified in this act, or some other fact of assembly, it shall be considered a misdemeanor in office.’ II. Aor 31 Marca 1860. Purd. 503. Szor. 12. If any justice, clerk, prothonotary, sheriff, coroner, constable or other officer of this commonwealth, shall, wilfully and fraudulently, receive or take any reward or fee to execute and do his duty and office, but such as is or shall be allowed by some act of assembly of this commonwealth ; or shall receive or take, by color of his office, any fee or reward whatever, not, or more than is allowed as aforesaid ; he shall be deemed guilty of a misdemeanor in office, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year. III. Aor 13 June 1836. Purd. 1882. Sor. 65. If any person working upon any road or highway, or if any one in company with such person, shall ask money or reward, or by any means whatever shall extort, or endeavor to extort, any money, drink or other thing, of or from any person travelling upon or near such road or highway, the person so offending shall, for every such offence, forfeit and pay a sum not exceeding five dollars. III. Letortion is an abuse of public justice,.and consists in any officer’s taking, by color of his office, from any one, any money or thing of value, where none at all is due, or not so much is due, or before'it is due.? An extortion, in a large sense, is taken for any oppression by power or pretence of right. ‘The writers on the common law consider extortion as more heinous than robbery itself, attended, as it usually is, with the aggravated sin of perjury.’ 1 See 1 Wood. 178. 8-1 Hawk. P. C. 418. 2 Co, Litt. 368. 6 Cow. 661. A BOS EER AON. Noss fens. FACTORIES, 445 The exaction of a fee by any officer, before it is due, is extortion at common law.) By act of 22d February 1821, “it shall be lawful for the recorder of deeds and register of wills, to receive the fees for recording the same, at the time the deed or deeds, will or wills, are left at his office for recording, any law or usage to the con- trary notwithstanding.”? And by act of 11th April 1850, it is provided, that nothing in the act of 1814 shall be deemed to impose upon any sheriff, deputy- sheriff or constable, any penalty for taking the fee for service, or copy of apy writ of summons or other original process, at the time of receiving such process to be served? But the act 22d March 1869, the justices of Westmoreland county may demand their fees and those of the constables, before issuing criminal process. And by the act 17th April 1869, the aldermen of Allegheny county are required to collect from the plaintiff in civil cases, before entering the action on the docket, the fees for entering the action, and issuing and return of summons.® The penal clauses of the act of 1814 are not repealed by the act of 1860, punish- ing the extortion of illegal fees by indictment.§ A justice is indictable for exacting illegal fees ;* but the indictment must aver that the illegal charge was made “ wilfully and fraudulently ;”’* and of this the jury are the judges.® He is liable, however, to the penalty prescribed by the act of 1814, though he supposed, at the time, that they were legally demandable, and acted without any corrupt intent.!° Where a justice charges illegal fees, which are indorsed on the execution, and collected hy the constable, the former is liable for the penalty, though they were not paid over to him." And if it appear that he charged and received a greater sum for a speci- fied item of service than he was entitled to, it will be no defence to an action for the penalty, that he omitted to charge as much as he was entitled for another item of service.” factories. Aot 21 Aprin 1849. Purd. 864. Scr. 2. Labor performed during a period of [ten] hours on any secular day in all cotton, woollen, silk, paper, bagging and flax factories, shall be considered a legal day’s labor ; and hereafter no minor shall be employed in or about any of said ’ factories until he or she shall have obtained to the age of thirteen years. Sxct. 3. If any owner or employer of or in any of the said factories, or his, her or their agent, shall wilfully or knowingly employ any minor below the age of thirteen years as aforesaid, the person or persons so offending shall pay a penalty of fifty dollars for every such offence, to be sued for and recovered by any person suing for the same, as other debts of like amount are now by law recoverable, one- half of the same to belong to the persons suing for the same, and the other half to the county in which the offence was committed. Szor. +. No minor, who has attained the age of thirteen and is under the age of sixteen years, shall be employed in any of the factories aforesaid for a longer period than nine calendar months in any one year, and who shall not have attended achool for at least three consecutive months within the same year; and any owner or employer of or in any of the factories aforesaid, offending against the provisions of this section, shall be liable to the penalty provided in the 3d section of this act, to be sued for, recovered and applied as therein provided. Srot. 5. If any parent or guardian shall consent to, permit or connive at the employment of his or her child or ward, under the age of thirteen years, in any of the said factories; or if such parent or guardian shall consent to, permit or connive at the employment of his or her child or ward over the age of thirteen years, and 11 Pick. 279. 79 Phila. 574. : Purd. 880 ; Vo oe 253. Ibid. ow. , ‘ Pomph. 478, 10 178. & R. 75. > Pamph. 1184. 13P.& W. 519 6 33 Pitts. L. J. 147. 28 Ibid. 211. 27 Ibid. 1 5 W. 477. 146, 11 W. N. C. 269. 446° FACTORIES. ; under the age of sixteen years, for a longer period than [ten] hours in any secular day, the person go offending shall forfeit and pay the sum of fifty dollars tor evevy such offence, to be sued for and recovered as provided in the 3d section of this act, and for the uses therein specified. Aot 7 May 1855. Purd. 864. Szor. 1 No male or female operative under the age of twenty-one years shall, under any contract, be employed in cotton, woollen, silk, flax, bagging or paper manufactories in this commonwealth, for a longer period than sixty hours in any one week, or more than an average of ten hours a day during the same period. Szcor. 2. If any person shall knowingly employ, or any parent or guardian con- sent to the employment of, any male or female operative under the age of twenty- ,one years as aforesaid, contrary to the preceding section, and proof be made thereof before any alderman or justice of the peace of the ward, borough or district whére such offence is committed, he, she or they so employing such operatives, or con- senting thereto as aforesaid, shall, for every such offence, forfeit and pay the penalty of not less than ten, nor more than fifty dollars, to be recovered before any alder- man or justice of the peace of the proper ward, borough or district, in the same manner as the like penalties are now recovered, to be applied to the use of the public schools of the proper district: Provided, That no penalty shall be recovered under this act, unless sued for within one month after the same shall have occurred ; nor shall any person recover more than one penalty for the working of any factory -for the same period of time. Szor. 3. All the ward, borough and township constables are hereby authorized and required, and it is hereby made their duty, to attend to the strict observance of the two preceding sections of this act, when complaint shall have been properly made to them of a violation of the same. Act 14 Aprin 1868. Purd. 1158. Szor. 1. Hight hours of labor, between the rising and setting of the sun, shall be deemed and held to be a legal day’s work, in all cases of labor and service by the day, where there is no contract or agreement to the contrary. Sxor. 2. This act shall not apply to or in any way affect farm or agricultural labor or service by the year, month or week; nor shall any person be prevented, by anything herein contained, from working as many hours over-time or extra work, as he or she may see fit, the compensation to be agreed upon between the employer and the employee. Szor. 3. All other acts or parts of acts relating to the hours of labor which shall constitute a day’s work in this state, are hereby repealed. Tt seems, that it is an indictable offence at common law to overwork children in a factory... Where, however, the statutory remedy is applicable to the case, the act of 1860 provides that its directions shall be strictly pursued, and no penalty shall be inflicted, nor anything done agreeable to the provisions of the common law, further than shall be necessary for carrying the act into effect.? If a statute prohibit a matter of public grievance, or command a matter of public convenience, all acts or omissions contrary to the prohibition or commaud of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specify no other mode of proceeding. Act 1 June 1887. Purd. 865. Sect. 1. At shall be unlawful for any person, persons, firms, companies, associations or corporations, to employ any child under the age of twelve years to do any work in or about any mill, manufactory or mine in this commonwealth. Szcr. 2. Any person, persons or corporations, who may violate this act, shall, on conviction, pay a fine of not less than twenty dollars, nor more than one hundred dollars, at the discretion of the court. Said fines, arising from the violation of this act, shall be paid to the treasury of the proper county, where said violation shall occur. 1 2 Twiss’s Life of Eldon 36, cited in 1 Whart. °1 Whart. Cr. L. 3 10, 13 S.4& R. 429 1 Cr. L. 2 3, note. Penn. St. 224, 2 Purd. 543. FACTORIES. AAT Act 3 Junz 1893. Purd. 865. Sxcr. 1. No minor shall be employed at labor or detained in any manufacturing establishment or mercantile industry, or any laundry or renovating establishments, for a longer period than twelve hours in any day, nor for a longer period than sixty hours in any week. Sect. 2. No child under thirteen years of age shall be employed in any factory, manufacturing or mercantile establishment. renovating works or laundry within thig state. It shall be the duty of every person so employing children to keep a register in which shall be recorded the name, birthplace, age and place of residence, name of parent or guardian, and date when employment ceases, of every person so employed by him under the age of sixteen years. And it shall be unlawful for any factory, manufacturing or mercantile establishment to hire or employ any child under the age of sixteen years, without there is first provided, and placed on file an affidavit made by the parent or guardian, stating the age, date and place of birth of said child. If said child have no parent or guardian, then such affidavit shall be made by the child, which affidavit shall be kept on file by the employer, and which said register and affi- davit shall be produced for inspection on demand by the inspector or any of the depu- ties appointed under this act. ' Sect. 3. Every person, firm or corporation, employing women or children, or either, in any factory, manufacturing or mercantile establishment, or renovating works or laundry, shall post and keep posted, in a conspicuous place in every room where such help is employed, a printed notice, stating the number of hours per day for each day of the week required of such persons, and in every room where children under sixteen years of age are employed, a list of their names with their age. Sect. 4. No person, firm or corporation, employing less than five persons, shall be deemed a factory, manufacturing or mercantile establishment, within the meaning of this act. Sect. 5. The governor shall, immediately after the passage of this act, appoint, with the advice and consent of the senate, a factory inspector, at a salary of three thousand dollars per year, whose term of -office shall be three years, at the expiration of which the governor shall appoint his successor. The said inspector shall be em- powered to visit and inspect at all reasonable hours and as often as practicable, the factories, workshops and other establishments in the state employing women and children. It shall also be the duties of said inspector to enforce the provisions of this act and to prosecute all. violations of the same before any magistrate or any court of competent jurisdiction in the state. It shall be the duty of the factory inspector to report to the governor, on or before the thirtieth day of November of each year, the names of factories inspected, the number of hands employed in each, the maximum number of hours’ work performed each week. Of these reports five thousand shall be published, five hundred of which shall be furnished to the governor, two thousand to the house of representatives, one thousand to the senate, and fifteen hundred to the factory inspector’s department. Sect. 6. All necessary expenses incurred by said inspector in the discharge of his duty shall be paid from the funds of the state, upon the presentation of proper vouchers for the same: Provided, That not more than four thousand dollars shall be expended by him therefor in any one year. Srct. 7. It shall be the duty of the owner, agent or lessee of any such factory, manufacturing or mercantile establishment, where hoisting shafts or well holes are used, to cause the same to be properly and substantially enclosed or secured, if, in the opinion of the inspector, it is necessary to protect the life or limbs of those employed in such establishments. It shall be the duty of the owners, agent or lessee, to pro- vide, or cause to be provided, such proper trap or automatic doors so fastened in or at all elevator ways as to form a substantial surface when closed, and so constructed as to open and close by action of the elevator in its passage either ascending or descending. Sect. 8. It shall also be the duty of the owner of such factory, mercantile industry or manufacturing establishment, or his agent, superintendent or other person in charge of the same, to furnish and supply, or cause to be furnished and supplied, in the discretion of the inspector, where dangerous machinery is in use, automatic shifters, or other mechanical contrivances, for the purpose of throwing on or off belts or pulleys. And no minor under sixteen years of age shall be allowed to clean machinery while in motion. All gearing and belting shall be provided with proper safeguard. Scr. 9. It shall be the duty of the owner or superintendent to report, in writing, _to the factory inspector all accidents or serious injury done to any person employed 448 FACTORIES. in such factory within twenty-four hours after the accident occurs, stating as fully as possible the cause of such injury. Sxcr. 10. A suitable and proper wash and dressing room and water-closets shall be provided for females, where employed, and the water-closets' used by females shall not adjoin those used by males, but shall be built entirely away from them, and shall be properly screened and ventilated and at all times kept in a clean condition. Sect. 11. Not less than forty-five minutes shall be allowed for the noonday meal in any manufacturing establishment in this state. The factory inspector, his assistant or any of his deputies, shall have power to issue permits in special cases, allowing a shorter meal time at noon, and such permit must be conspicuously posted in the main entrance of the establishment, and such permit may be revoked at any time the in- spector deems necessary, and shall only be given where good cause can be shown. Sect. 12. If the inspector of factories find that the heating, lighting, ventilation or sanitary arrangement of any shop, or factory, is such as to be injurious to the health of persons employed therein, or that the means of egress in case of fire or other dis- aster is not sufficient or in accordance with all the requirements of law, or that the belting, shafting, gearing, elevators, drums and machinery, in shops and factories are located so as to be dangerous to employés and not sufficiently guarded, or that the vats, pans or structures filled with molten metal or hot liquid are not surrounded with proper safeguards for preventing accident or injury to those employed at or near them, he shall notify the proprietor of such factory or workshop to make the alter- ation or additions necessary within sixty days, and any factory requiring exits or other safeguards provided for in fire-escape law in case of fire, the same shall be erected by order of factory inspector’ regardless the exemption granted by any board of county commissioners, fire marshals or other authorities, and if such alterations and additions are not made within sixty days from the date of such notice, or within such time as said alterations can be made with proper diligence upon the part of such proprietors, said proprietors or agents shall be deemed guilty of violating the provisions of this act. Sect. 13. The factory inspector, now or hereafter appointed under and by virtue of the provisions of this law, is hereby authorized to appoint such number of persons as in his judgment may be deemed necessary, not exceeding twelve, five of whom shall be females, who shall be known as deputy factory inspectors, either or any one or more of whom may be appointed to act as clerk in the main office, and whose duties it shall be to enforce the provisions of this act and of the several acts relating to fac- tories and manufacturing establishments. The powers of said deputies shall be the same as the powers of the factory inspector, subject to the supervision and direction of the factory inspector. Sxcr. 14. The travelling expenses of each of said deputies shall be approved by the inspector and audited by the auditor-general of the state before payment, and said deputy inspectors shall have an annual salary of twelve hundred dollars, to be paid monthly by the treasurer of the state out of any moneys not otherwise appropriated. Sect. 15. Said factory inspector shall have power to divide the state into districts and to assign one of said deputies to each district, and may transfer any of the depu- ties to other districts in case the best interests of the state require it. The inspector shall have the power of removing any of the deputy inspectors at any time. Src. 16. An office shall be furnished in the capitol, as soon as practicable, which shall be set apart for the use of the factory inspector. The factory inspector and his deputies shall have the same power to administer oaths or affirmations as is now given to notaries public in cases where persons desire to verify documents connected with the proper enforcement of this act. Sxcr. 17. Any person who violates any of the provisions of this act, or who suffers or permits any child or female to be employed in violation of its provisions, shall be deemed guilty of a misdemeanor, and on conviction, shall be punished by a fine of not more than five hundred dollars. Sect. 18. A printed copy of this act shall be furnished by the inspector for each work room of every factory, manufacturing or mercantile house, where persons are employed who are affected by the provisions of this act, and it shall be the duty of the employer of the people employed therein to post and keep posted said printed copy of the law in each room. Sect. 19. All the acts or parts of acts inconsistent with the provisions of this act are hereby repealed. Approved the twentieth day of May, Anno Domini one thou- sand eight hundred and eighty-nine. [ 449 ] Factors. I. Act of assembly. II. Judicial decisions. I. Aor 31 Maron 1860. Purd. 499. Szor. 125. If any consignee or factor having the possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certi- ficate, receipt or order for the delivery of merchandise, with the like authority, shall deposit, or pledge such merchandise or document, consigned or intrusted to him as aforesaid, as a security for any money borrowed, or negotiable instrument received by such consignee Or factor, and shall apply or dispose of the same to his own use, in violation of good faith, with intent to defraud the owner of such merchandise, and if any consignee or factor shall, with like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument, raised or acquired by the sale, or other disposition of such merchandise, such consignee or factor, in every such case, shall be guilty of a misdemeanor, and be sentenced to pay a fine not exceeding two thousand dollars, and undergo an imprisonment, not exceeding five years. Nore.—Complaint, on oath or affirmation, being made to a magistrate that the above law has been violated, he should issue a criminal warrant setting forth the offence charged ; for example—‘ that A., the factor or consignee of B., having had 20 bales of cotton goods, of the value of $4000, put into his possession by B., had, with intent to defraud said B., pledged or pawned said cotton goods, &e.’’ The defendant being brought up, and the testimony heard, it then becomes the duty of the justice either to discharge, take bail, or commit the defendant for trial at the next court of quarter sessions. II. One who has consigned goods to a factor and received an advance thereon, has the right, subsequently, to limit the prices at which they should be sold! But the consignee may sell to repay advances, after calling on the principal for reim- bursement, unless there be an agreement between them, which controls or varies the right.2, Such an agreement may arise from accepting the consignment, accom- panied by an order as to the sale.* The existence of a usage to sell to pay advances, will not control an express contract between the parties as to the sale of the goods ; and that the sale in violation of orders was made zn good faith, is not a valid excuse.‘ If the consignor stand ready to repay the advances, he may control the sale. Where one has consigned goods to his factor, and received advances thereon, he cannot withdraw them, without payment, or an offer to pay, not only the amount of advances, but the commissions the factor would have been entitled to, if a sale had been effected.6 Where goods are sent to a factor for sale without instructions as to the time or terms of sale, he is at liberty to sell at such time and on such terms, as in the exercise of a sound discretion he shall deem proper for the interest of his principal? If a factor sell below his instructions, although at the then market value, he takes a peril of a rise in the value of the goods at any time before the action is brought, and perhaps down to the time of trial.® It is an established principle in the law of principal and factor, that when the latter renders an account of sales, the former should, with all reasonable diligence, specify in what particular such account is exceptionable. If the principal retain the account any unreasonable length of time, he is concluded from making objections, but must be considered as acquiescing in the report of the factor’s transactions.? One who holds himself out to the world as a consignee cannot ordinarily refuse, without cause, to receive goods consigned to his care; and upon his refusal to 13 W.0.C.151. 3 N.Y. 62, 78. 5 14 Pet. 479. 215 Penn. St. 234. The factor may sell not- 6 1 Pars. 359 withstanding the service of an attachment. 54 %73N Y.62. 1Y. 486. Thid. 84. § 3N. Y. 78 8 14 Pet. 479. 9 1 Pars. 359 4 15 Penn. St. 229. 29 450 FALSE IMPRISONMENT. receive goods so consigned, the owner may maintain an action against him for any damage occasioned by such refusal. . Though a factor has a lien on the goods of his principal, yet he cannot retain against the order of the principal a large portion of the goods, though he may retain as much as will be sufficient to pay his debt.’ A factor can only claim a lien on goods lawfully in his possession.® Although a warehouseman has not a general, he has a specific lien, and therefore may, on the storage of a large quantity of goods received under the same contract and belonging to the same individual, retain a sufficient quantity to repay himself.‘ A warehouseman is liable only for negligence in preserving the property deposited with him.® A factor who discounts for his own use notes received in payment for the goods of his principal, makes them his own, and becomes personally liable to his principal for the amount of the sales.® As to the lien of factors, see the act 14 April 1834, Purd. 867. False lnnprisonmment. Ir is false imprisonment to detain another by threats of violence to his person, or to deprive him of the freedom of going where he will, by well-grounded appre- hensions of personal danger, though no assault be made." If a justice of the peace issue process for the arrest of a defendant, in a case in which it is forbidden by law, he obtains thereby no jurisdiction of the person of the defendant, all his proceedings in the case are null and void, and he renders himself liable to an action for false imprisonment. Thus, where a justice issued a warrant forsthe examination of a pauper, who was brought into court, examined, and removed to another town, by order of the justice and another magistrate who sat with him: for the reason that the warrant was delivered to, and served by a con- stable of another town than that mentioned in the statute, though in the same county, it was held, that the justice acquired no jurisdiction, and was liable in an action for false imprisonment.® In an action for a penalty, which is directed to be recovered as debts of like amount are by law recoverable; the defendant is not liable to arrest; an execution, therefore, in such case, authorizing the imprisonment of the person, is void, and the defendant may be discharged on habeas corpus.” For an arrest on a warrant, which sets forth no criminal offence, an action of false imprisonment will lie; all persons acting under it are trespassers.” But an action for false imprisonment will not lie, until the criminal proceedings are ended. In such action, probable cause is no justification, it only goes on mitigation of damages. 16W. &&. 62. 8 4.N. Y. 383-4. 21W. OC. OC. 252. 9 7 Cow. 269. 8 4N. Y. 497. 10 Martin’s Case, Com. Pleas, Phila., 15 April 47W.& S. 466. 1834. MS. 5 30 Penn. St. 247, 11 6 Phila, 541. 32 Alb. L. J. 471. 66W. 4&5. 44. 3 Penn. St. 323. 1221 W.N.C.9. T Bald. 571. 18 34 Leg. Int. 305. And see 17 W. N.C. 210. L 451 ] False Personation. Act 31 Marcy 1860. Purd. 529. Szor. 16. If any person shall fraudulently and corruptly acknowledge, or procure to be acknowledged, any deed, or any writing authorized to be acknowledged, or any recognisance or judgment, in the name of any other person not privy thereto, or consenting to the same, the person so offending shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years. FALSE PERSONATION was an offence at common law; where, in a capital case, a stranger went into the jury box, and personated a juror who was summoned, it was held to be ground for a new trial.1_ But in a civil case, it has been said, that where. a person of a similar name innocently answered to that of a juror who had been drawn, it was not necessarily ground for a new trial; it is matter of discretion? If, however, a juror whose name was called as one of the panel, was personated by some one whose name was not on the jury list, a new trial must be granted. alse Pretences. I. Cheats and frauds at common law. IV. Meaning of the words ‘any chattel, money, II. Provisions of the Penal Code. or valuable security.” III. Meaning of the words “by any false pre- V. Meaning of the words “ with intent to cheat tence.” and defraud.” I. A mere private imposition, short of felony, and effected by a “ naked lie,” without the association of artful device, or false token, voucher, order, &c., is not. indictable as a cheat at common law, unless it be public in its nature, and caleu- lated to defraud numbers, or to injure the government or the public in general.* Such are the following among other frauds. Those affecting the administration of public justice, as counterfeiting a creditor’s authority to discharge his debtor from prison,® or endangering the public health, by selling unwholesome provisions, whether to the public generally,® or under a contract with the government for supplies to particular bodies.’ So, in Pennsylvania, an indictment was sustained against a baker in the employ of the United States army, in baking 219 barrels of bread, and marking them as weighing 88 pounds each, when, in fact, they severally weighed but 68 pounds.® Frauds calculated to affect all persons, as selling by false weights and measures ;* counterfeiting tokens of public authenticity ;° playing with false dice ;4 obtaining money from a soldier, on a false pretence of having power to discharge him ;# or getting the bounty by enlisting as a soldier, being an apprentice, liable to be retaken by a master,® have all been held indictable as cheats at common law. But an indictment which charged that the defendant unlawfully and fraudulently did give, enter and file of record a certain bond and warrant of attorney, for $600, to P. D., without any consideration, and with intent to cheat and defraud J. M. and other of his creditors, and that the defendant did cheat and defraud the said J. M. and other of his creditors; was held to charge no offence indictable at common law. 1 5 Clark 238. 7 2 Camp. 12, 2 35 Leg. Int. 163. 81 Dall. 47. 35 W.N. OC. 404. 91 Wz. BI. 273. 4 2 Hast P. C. 817, $21. Whart. Prec. 224. 4 10 Tremaine’s P. C. 103. Clark 207, 5 Penn. St. 60. 2 Cr.C.C.60. 4 Ibid. 1 1 Dall. 338. 83, 22 Latch 202. 2 5 2 Hast P. C. 826, 862. 18 2 Hast P. C. 822. § Tbid. 821. 14 2 Clark 297. 452 FALSE PRETENCES. To remedy this imperfection of the common law, sundry statutes have been en- acted in England and in the United States; which, in Pennsylvania, are embodied in the 111th and 112th sections of the revised Penal Code. II. Act 31 Marcu 1860. Purd. 504. Sxor. 111. If any person shall, by any false pretence, obtain the signature of any person to any written instrument, or shall obtain from any other person any chattel, money or valuable security, with intent to cheat and defraud any person of the same, every such offender shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an im- prisonment not exceeding three years: Provided always, That if upon the trial of any person indicted for such a misdemeanor, it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts. Sxcr. 112. If any person, with intent to cheat or defraud, shall by any false or fraudulent representations, or by any false show of baggage, goods or chattels, which are calculated to deceive any hotel, inn or boarding-house keeper, obtain lodging and credit in any hotel, inn or boarding-house, and shall subsequently refuse to pay for his board and lodging, the person so offending shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one hundred dollars, or undergo an imprisonment not exceeding three months, or both, or either, at the discretion of the court. Aor 20 Aprit 1876. Purd. 504. Szor. 1. Every person who shall, at any hotel or inn, or boarding-house, receive, or cause to be furnished, any food or accommodations, with intent to defraud the owner or proprietor of such hotel, inn or boarding-house, out of the value or price of such food or accommodation, and every person who shall obtain credit at any hotel, inn or boarding-house, by the use of any false pretences or device, or by depositing at such hotel, inn or boarding-house, any baggage or property of value less than the amount of such credit, or of the bill ‘by such person incurred, with such fraudulent intent, and any person who, after obtaining credit or accommoda- tion at any hotel, inn or boarding-house, shall abscond from such hotel, inn or boarding-house, and shall surreptitiously remove his baggage or property there- from,’ shall [upon conviction] be adjudged guilty of a misdemeanor; and upon conviction, shall be punished by imprisonment in the county jail for a term of not more than six months. III. By any false pretence——The term “‘ false pretence’? is very general and includes ‘false token or writing,” and every extortion of money or goods with intent to defraud.? Where a carrier, falsely pretending that he had carried certain goods to A. B., demanded and thereupon obtained from the consignor 16 shillings for the carriage of them, it was held to be within the statute.’ Where the foreman of a manufac- turer, who was in the habit of receiving from his master money to pay the work- men, obtained from him, by means of false written accounts of the wages earned by the men, more than the men had earned, or he had paid them, it was held to be within the act; the judges said that all cases where the false pretence creates the credit are within the statute. Where the defendant falsely pretended to J. N. that he was intrusted by the Duke de Lauzun to take some horses from Ireland to London for him, and that; he had been detained so long by contrary winds that his money was all spent; by means of which representation he induced J. N. to advance him money, this was held to be within the act.’ So, where defendants, falsely pretend- ing that they had made a bet with A. B. that one of them should run ten wiles within an hour, prevailed upon J. N.to join them in the bet, and obtained from 1 See 6 Luz. L. Reg. 207. 2 East P. C. 830. 23 Chit. Cr. L. 997. 4 Olark 20. 2 Pars. 332. 3 T.R. 104, 3 2 East P. C. 672. ign ae ao FALSE PRETENOES. 458 him 20 guineas as his share in it: held to be within the statute, though the pre- tence were one against which common prudence might have guarded.' If a person obtain goods from another on giving him in payment his check on a banker, with whom in fact he has no account, this (though not indictable as a fraud at common law) is a false pretence within the meaning of the act.2 Where a man obtained goods and money for a forged note of hand for 10s. 6d., it was held to be a false pretence within the act.* It will not avail the defendant that the pre- tence consists in a false representation of something to take place at a future time, as that a bet had been laid that a certain pedestrian feat would be performed, as in the case referred to above.t If a person procure a tradesman to sell him goods as for ready money, and direct him to send his servant with them to his lodgings, and there deliver fabricated bills in payment, retaining the goods, he may be found guilty of obtaining them under false pretences. And a begging Jetter, making false representations as to the con- dition and character of the writer, by means of which money is obtained, is a false pretence within the statute.® Every false promise or assertion made by a party with a view of fraudulently obtaining the property of another, is not, of course, a false pretence within the act ; but the false pretences in the contemplation of the statute, are such as assert the existence of some fact calculated to impose upon a man of common and ordinary caution, which false pretence creates the credit given to the accused.’ The pur- chase of goods, for which the buyer is unable to pay, although his promise was specious and fair, also false when made, does not constitute a false pretence within the act.? A false pretence, within the statute, must relate to past, and not future events ;® but the false assertion of possession of money or property, on the credit whereof goods are obtained, is within the act.” It is certain, that a fraudulent misrepresentation of the party’s means and resources is within the English statutes, and @ fortiort within our own." It has been held, however, not to extend to a false representation of the quality of goods, on which an advance of money is obtained, if they be the same in specie as represented.’ The following have been held to be false pretences within the statute: where the keeper of an intelligence office, by falsely pretending he had a situation in view, induced the prosecutor to pay him two dollars asa premium; where a person obtained goods under the false pretence that he lived with and was employed by A. B., who sent him for them; and falsely to represent the notes of a broken bank to be good. But an indictment will not lie when the money is parted with as a charitable donation, although the pretences moving the gift be false and fraudulent, as where the defendant pretended he was deaf and dumb, and obtained alms by that means, and by a forged certificate.6 And where a person got possession of a promissory note, by pretending he wanted to look at it, and then carried it away, and refused to deliver it to the holder, it was held to be a mere private fraud, and not punish- able criminally." It is not necessary that the pretence should be in words; the conduct and acts of the party will be sufficient, without any verbal assertion.’* Where a man assumed the name of another to whom money was required to be paid by a genuine instru- ment, it was held indictable® And where a person, at Oxford, who was not a member of the university, went, for the purpose of fraud, wearing a commoner’s cap and gown, and obtained goods, it was held within the act, though not a word passed.” It is not necessary to allege a scienter, when the defendant must, necessarily, have been conscious of the falsity of his own statement ; but the defendant may 137, RB. 98, 11 2 Penn. St. 164, Gibson, C. J. 2 3 Camp. 370. 8 Phila. 609. 127 Cox C. C. 313. 8 Ibid. 233. 8 2 Russ. Cr. 1395. 18 Thacher’s C. C. 24. 43T. RB. 98. 4 12 Johns, 292. 5 2 Leach C. C. 614. 15 4 Mete. 48. 6 4 Cox CO. C. 198. 16 17 Wend. 351. 7 2 Pars. 309. 1 14 Johns. 371, 8 Ibid. 317. 18.2 Pars. 332. 919 Pick. 179. 6 Phila. 78. 19 R. & R. 81. 10 2 Penn. St. 163. 1 Clark 302. 20 Tbid. 454 FALSE PRETENCES. show on the trial, that he did not know that his assertions were untrue in fact.? It is no less a false pretence because the party imposed upon might, by common prudence, have avoided the imposition.” Where the secretary of an Odd Fellows’ Society falsely pretended to a member of the society that a sum of money was due by him to the society for fines, by means of which the secretary fraudulently obtained that amount from him, it was held, to be a false pretence within the statute.? So, passing: off a flash note, as a Bank of England note, on a person unable to read, and obtaining from him goods in exchange for it, is a false pretence.* And where it was the duty of a servant, in the absence of his masters’ chief clerk, to purchase and pay for, on behalf of his masters, any kitchen stuff brought to their premises for sale; and on one occasion, he falsely stated to the chief clerk that he had paid 2s. 3d. for kitchen stuff which he had bought for his masters, and demanded to be paid for it ; whereupon the clerk paid him the amount out of money which his masters had furnished him with for that purpose; and the defendant applied the money to his own use; held, that this did not amount to larceny, but was a false pretence within the statute.’ But a mere naked lie, in the transaction of business, does not constitute a false pretence; it must be a false statement, calculated to deceive a mind of ordinary caution and intelligence, and upon which the credit is given, and this should be clear to the justice to justify a binding over.’ But any pretence sufficient to impose on the individual to whom it is made, is an offence, if used with the intention to cheat and defraud.’ If the false statements were made on different occasions, it is a question for the jury whether they are so connected as to form one continuing representation.® A professed intent to do an act which the party did not mean to do, is the only species of false pretence to gain property which is not indictable? A representa- tion that the party could or would do a particular act, as that he could or would get a bill discounted, though he knew he could not, is not a false pretence within the act, but rather a breach of promise, and the false pretence must be of the existence of some fact.’ IV. Any chattel, money or valuable security.—These words include bonds, mort- gages, promissory notes, bills of exchange, bank-notes, all securities and orders for the payment of money or the transfer of goods or any valuable thing whatever.” A receipt obtained in discharge of a debt, which was paid with the worthless note of a broken bank, is not such property or valuable thing as is contemplated by the act. If the defendant had obtained any money or merchandise, or anything of value from the prosecutor, his case would be within the provisions of the act; but as the receipt was for a preceding debt, if that receipt was obtained by fraudu- lent misrepresentations, and without value, it was neither a cheat at common law or within the statute. Paying an old debt with base coin, or a worthless note, is no payment, and the person receiving the base coin or the worthless note, has the same remedy at least to recover his debt that he had before the alleged payment took place. The debt was not extinguished by the receipt ; it was not the obtaining of money or goods by a false token or pretence; it was a fruitless attempt to pay and discharge an old account. If the subject-matter of the charge be land and the title to it, and the depriving of the owner of it by cheating, the offence is not indictable at common law or under the statute,” unless the signature of the person defrauded be obtained, by such false pretence, to some instrument of writing.” 1 Whart. Prec. 3 528 n. St. 574. 28 Leg. Int. 310. 2 22 Penn. St. 253. i 3 Chit. Cr. L. 998. It includes the obtaining 8 4 Cox C. C. 191. of a registered letter from the post-office, by false 4 Thid. 227. pretences. 2 Leg. Gaz, 93. 5 2 Den. C. C. 59, 12 8 Penn. St. 260. 6 8 Phila. 613. 9 Ibid. 594. 1 Clark 436. 2 1 Ibid. 264. And this would not be larceny Ibid. 6. though the receipt were written on a stamp pro- 1 2 Pars. 332. duced by the prisoner. 5 Cox 0. C. 533. And 8 6 Cox C. C. 158. see 2 Chest. Co. R. 638. 15 W. N. C. 282.' 9 2 Penn. St. 164. M4 4 Clark 207. 20 1 Chit. Pract. 124. 1 Clark 302. 99 Penn. 1 See 8 Penn. St. 260. 5 Cox C. C. 533. FEES. 455 V. With intent to cheat and defraud.—No indictment will lie where the false pretence, if successful, will neither cheat nor defraud; nor should an intent to defraud be even implied in such a case. Therefore, where a constable, by means of false pretences, collected the amount of a judgment from the defendant against whom it was rendered, it was held, that an indictment under the act of 12th July 1842 could not be sustained, because he neither cheated nor defrauded thereby but only obtained payment of an honest debt.’ False representations, inducing one to pay a debt he justly owes, are not indictable. A false representation warrants the inference of an attempt to defraud.* An indictment will not lie, in New York for obtaining money by false pretences, where the money is given in charity, though there be fraud in procuring it.‘ Ifthe accused can show to the satisfaction of the jury that he did not know that his assertion of facts was untrue, it might avail him as a defence to the allegation of an intention to cheat and defraud, for that is the essence of the charge.® The intention to defraud must exist at the time when the credit is given.® The commonwealth must prove that the representations, or some of them, were false ; that the prisoner knew them to be so; that they were made with intent to defraud; and that in pursuance thereof, the defendant obtained the property described.’ A married woman cannot be convicted of obtaining goods by false pre- tence, if the prosecutor knew, at the time, that she was covert.® Act 19 May 1887. Purd. 505. Every person who, by false pretence, shall obtain from any club, association, society or company for improving the breed of cattle, horses, sheep, swine or other domestic -animals, the registration of any animal in the herd register, or other register of any such club, association, society or company, or a transfer of any such registration, and every person who shall knowingly give a false pedigree of any animal, upon conviction thereof, shall be punished by imprisonment in a county jail for a term not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and im- prisonment. ee Fees. [See Exrortion. | I. Fees of justices and magistrates. III. Illegal fees. II. Fees of constables. I. FEES OF JUSTICES AND MAGISTRATES. Act 23 May 1893. Purd. 890. ‘Sect. 1. There shall be uniformity throughout the commonwealth in the charges of justices of the peace, aldermen, magistrates and constables, and their fees shall be as follows, to wit: That from and after the passage of this act the fees of justices of the peace, magistrates and aldermen, shall be: Dolls, Cts. For information or complaint on behalf of the commonwealth . . »- . 650 Docket-entry of action on behalf of the commonwealth . . « . . 25 Warrant, mittimus or capias on behalf of the commonwealth . . - =. 50 Writing an examination or confession of defendant . . : i <8 . 50 Hearingincriminaleases » + eee Administering oath or affidavit in criminal or civil cases. ‘ Bee - 10 Taking recognizancein criminal case. . «© + «© «© «© «» «= 80 Transcript in criminal cases, including certificate ‘ ; a. av. ee le. ©b0 Entering judgment on conviction for fine. «© 2.» ew ee eS Recording conviction - 6 eee 1 Clark 33. 5 Whart. Prec. 528 n. 23 Hill 169. 6 2 Clark 10. 313 Wend. 87. 71 Brewst. 328. 417 Ibid. 351. $15 Phila. 386. 456 FEES, : Dolls. Cts. Warrant to levy fine or forfeiture . . . bo te F : - 80 Bail piece and return swpersedeas . «© + ‘ F . . . « 30 Discharge of jailer . ‘ . z . r 35 Entering discontinuance in case of an ‘aasault and battery - - . 5 - 60 Entering complaint of master, mistress or an apprentice . . i ‘ 30 Notice to master. mistress or apprentice. he . . « 25 Hearing parties . ‘ » 50 Holding inquisition under landlord and tenant act, or in case of forcible entry, each day, each justice . : ‘ m ‘ . a 7 : - 200 Process, et cetera, to sheriff, each justice . . . . . . 75 Recording proceedings, each justice . . . . . . - 150 Writ of restitution, each justice eee Warrant to appraise damages . ‘ 7 . . * - 80 Warrant to sell strays. . « oP as Me a aay er 80 Warrant to appraise swine. =. ea ep ep at) 985. Receiving and entering return of appraisement of swine . 7 ‘i . - 25 Publishing proceedings of appraisers of swine . ‘ ‘ 5 7 » 7 Entering action in civil case : : . : . . . 2 Summons or subpoena . ‘ : a 4 j . 25 Capias in civil case. 50 Every additional name after the first, all witnesses’ names to be i in one e subpeena unless separate subpcenas be i by the parties . é ; . 10 Subpoena duces tecum , . . : 7 . - 3 , - 2 Entering return of summons é ‘ é ‘ F z F i es) Entering capiasand bail bond .. : OL “en na Ke oe «25 Every continuance of a suit : RR RR eR » 6 « 20 Trial and judgment in case . "i $ . a ‘ ‘ ‘ ‘ - 650 Taking bail or plea of freehold . e. A o> Has Ae ‘ a ce 25 Entering satisfaction . ‘ ‘i ‘ F . . 7 7 . : . 425 Entering discontinuance of suit. . eo 8 Ro isis 1 «ce os 1b Entering amicable suit . 5 i . ‘ - - 650 Entering rule to take deposition of witnesses te Toe a SEB Rule to take depositions r ee : ‘ . . . » 2 Entering return of rule in any case . a ‘ . < i ‘ 15 Interrogatories annexed to rule to take depositions ee es tu - 25 Entering rule to refer . W 18 ‘ ue al. ca! co. cal tay 18 Rule of reference ; ‘ . : ‘ A ‘ ‘ ‘ a i . 25 Notice to each referee : Ss Oi Ce C8 cle OE Entering report of referees and judgment thereon BE flay a . e- oe “30 Written notice in any case . . . . 5 . . ‘ . . . 25 Execution . ‘ : - : , ; é : 7 : - 80 Entering return of execution 3 : ‘ : 7 . . . . 15 Scire facias in any case. ; ey 4 1 te ia, wey ear SSO Opening judgment for a rahoieiig . 5 a ; . : 5 : - 25 Transcription of judgment and certificate . , »~ ». 650 Return of proceedings on certiorari or appeals, including recognizances fs - 100 Receiving the amount of a judgment and paying the same ee if not exceed- ing ten dollars . : ‘é ‘ ‘ ‘ » 25 If exceeding ten, and not exceeding forty dollars : : i , < . 50 If exceeding forty, and not exceeding sixty dollars . te cate Jim. mie ues AED If exceeding sixty, and not exceeding one hundred dollars : . 7 - 100 And a like amount on each one hundred up to three hundred. Every search service to which no fees are attached . $ ; 5 . » 20 Affidavit in case of attachment . ‘ F 5 ‘ i 7 ‘i . » 80 Entering action in case of attachment Sie 2 i . 7 ‘ 7 » 2 Attachmentin any case. 5 js ‘ . ‘ . ; ° . » 385 Recognizance . «wee ele sC« Interrogatories . et we. %% R> son ter ek - = & 80 Rule on garnishee ‘ ‘ ‘ ‘ : 3 ‘ ¢ Fi ‘ » 25 Return of rule on garnishee i ‘ eo 8 a oe “ee ow | (328 FEES. 457 Dolls. Cts. Bond in case of attachment ‘ ah eh 50 Entering return and appneanee frecholders ge cep. it ae, Me? ae? Advertisement, each . : : ‘i ° m é 7 8 . 25 Order to sell goods 4 : fe Fey yarn “dn Aut Fe » 35 Order for the relief of a pauper, "eaoh justice ‘ e- Js- da iar ibe Entering transcript of judgment from another justice or alderman are 50 Order for the removal of a pauper, each justice or alderman » ». « 100 Order to seize goods for the maintenance of wife and children . ‘ . 60 Order for premium for wolf, fox or other scalps, to be paid by the county. - 25 Every acknowledgment or probate of deed, or other instrument of writing, for first name . : ’ : : : ; : » « 50 Each additional name after the first : . 25 Taking and signing acknowledgment of indenture of : an epprentice ~ «+ 650 Assignment and making record of indenture. : ~ oe ehh «CBO Cancelling indenture ‘ 50 Comparing and signing tax duplicates, each alderman 75 Marrying each couple, making record thereof and certificates to ‘the nario - 500 Certificate of approbation of two justices to the binding as apprentice of a per- son by the directors of the poor, each ee ‘ ; ‘ i ‘ 35 Certificate to obtain land warrant 75 Swearing or affirming county einaiesioner assessor, director oe the poor, or other township officer, or county officer, and certificate . , . - 650 Administering oaths or affirmations in any case not herein ndet for . » 25 Justifying parties on bonds for tavern licenses . 1 00 Entering complaint in landlord and tenant proceedings, wet one ‘thousand ‘eight hundred and thirty . 25 Issuing process in landlord and tenant proceedings, act one ; thousand ‘eight hun- dred and thirty 25 Hearing and determining case in ‘landlord and tenant proceedings, act one ‘thou- sand eight hundred and thirty . 50 Record of proceedings in landlord and tenant “proceedings, act one thousand eight hundred and thirty - 50 Writ of possession (and return) in landlord and tenant ‘proceedings, act one thousand eight hundred and thirty . é 50 When more than one magistrate is required in landlord and tenant proceedings the above fees shall be charged by each magistrate. Entering complaint in landlord and tenant proceedings, act one thousand eight hundred and sixty-three . 75 Issuing process in landlord and tenant proceedings, act one thousand eight hun- dred and sixty-three. 75 Hearing and determining case, act one » thousand eight hundred and sixty-three 1 00 Record of proceedings, act one thousand eight hundred and sixty-three 1 50 Issuing writ of restitution (and return), act one thousand eight hundred and sixty-three . - 100 The fees for services under the laws of the United States shall be as ‘follows: For certificate of protection eR ie ke Bs fas Ow es cae TBO For certificate of lost protection ag. See. Ge i> fe : - 25 Warrant . .. y ee ol “i Tar, te : . » 25 Commitment . * os 4 4 « 25 Summons for seamen in n admiralty case. le em ee eae 25 Hearing thereon with docket-entry . » .« 50 For certificate to clerk of the district court to issue admiralty process & os F265 For affidavits of claims and copies thereof . 25 The fees for services not herein specially provided, ‘shall be the same as for similar services. TI. FEES OF CONSTABLES. Act 23 May 1893. Purd. 886. Sxcr. 2. From and after the passage of this act the fees to be received by consta- bles in this commonwealth shall be as follows: 458 FEES. Dolls, Cts. For executing warrant on behalf of the commonwealth . - 5 - 100 For taking body into custody, or conveying to jail on mittimus or warrant . 100 For arresting a vagrant, disorderly person, or other offender against the laws (without process), and bringing before a justice . ; mes - For levying a fine or forfeiture on a warrant. a, ve ; : ‘ - 50 For serving subpoena 4 50 For taking the body into custody, or mittimus where dail i is afterwards entered before the prisoner is delivered to the jailer . F - 100 For serving summons notices on reference suitor, master or mistress, or appren- tice personally, each i ; ; 3 ‘ 5 . 50 For serving by leaving acopy . oN o 4 eo é » 50 For executing attachment personally ee os os we OH : . 50 For arresting on capias_ . 3 : : . 100 For taking bail bond on capias or for delivery of goods a 50 For notifying plaintiff where defendant has been arrested on capias to be paid by plaintiff . ‘ : : ‘ i is . é - . 25 For executing landlord’s warrants ‘ ‘ ‘i . - : : ‘ 50 For taking inventory of goods (each item) ‘ 2 For levying or distraining goods and selling the eame, for each dollar not ex- ceeding one hundred dollars. é . 5 ‘ . : ‘ 3 And for each dollar above one hundred dollars 5 : 2 And one-half of said commission shall be allowed where the money is 5 paid after levy without sale, but no commission shall in any case be taken on more than the real debt, and then only for the money actually received by the constable and paid over to the creditor. For advertising the same . : : ‘ ¢ - 100 For copy of venue paper when demanded (each item) 3 2 For putting up notice of distress at mansion-house, or at any other place 1 on the premises 3 ‘ a 6 ‘ . ‘ " : é 25 For serving scire facias personally é . i é é 7 ‘ ; ‘ a) For serving by leaving a copy . . .i : ‘ ‘ . : . 50 For executing bail piece. ‘ 1 00 For travelling expenses on an execution returned null owes ee non eat in- ventus where the constable has been at the defendant’s last residence, each mile. j é ‘ - a ‘ ‘ 10 For travelling expenses in all other cases, each mile ‘ . . 5 é 7 10 For executing order for the removal of a pauper i i : E » 75 For travelling expenses in said removal, each mile circular . i 3 ». 4b For serving execution : ; i : : i 50 For serving execution on a writ of restitution s s 6 - . ‘ . 200 For serving execution on a writ of possession. . ® . - . 200 For serving summons in landlord and tenant proceedings : . . . - 100 For serving notice in landlord and tenant proceedings ve. % ae - 650 For taking inventory of goods on an execution (each item) ‘ ‘ ‘ 2 For serving search warrant . 5 : . . ; . z < - 100 For serving capias execution i js s . - 100 Constable and appraisers personally, each, ¢ on appraisement ‘ 5 . 100 Act 19 May 1887. Purd. 887. Jurors, witnesses and constables attending the several courts of this commonwealth, or any other persons who by law are required to travel to the county seat, and who, under existing laws, are entitled to mileage, shall have the same computed by the route usually travelled in going from the points or places where said jurors, witnesses, constables or other persons may respectively reside to the county seat, whether that route be by the public highways, railroads or otherwise: Provided, That in no case shall more mileage be allowed than for the miles actually travelled. III. ILLEGAL FEEs. Act 28 Marcn 1814. Purd. 879. Srcr. 26. If any officer whatsoever shall take greater or other fees than is herein: FEES. 459 before expressed and limited for any service to be done by him, after the first day of September next, in his office, or if any officer shall charge or demand and take any of the fees hereinbefore ascertained, where the business for which such fees are charge- able shall not have been actually done and performed, or if any officer shall charge or demand any fee for any service or services other than those expressly provided for by this act, such officer shall forfeit and pay to the party injured, fifty dollars, to be re- covered as debts of the same amount are recoverable. And if the judges of any court within this commonwealth, shall allow any officer, under any pretence whatsoever, any fees under the denomination of compensatory fees, for any services not specified in this act or some other act of assembly, it shall be considered misdemeanor in office. Act 11 Aprin 1850. Purd. 880. Szcr. 9. Nothing in the 26th section of an act establishing a fee-bill, passed on the 28th day of March 1814, shall be deemed or taken to impose upon any sheriff, deputy- sheriff or constable, any penalty for taking the fee for service, or copy of any writ of summons, or other original process, at the time of receiving such process to be served. Act 28 Marcu 1814. Purd. 880. Szcr. 27. It shall and may be lawful for any person to refuse payment of fees to any officer, who will not make out a bill of particulars, as prescribed by this act, signed by him, if required, and also a receipt or discharge signed by him, of the fees paid, Act 22 Fesruary 1821. Purd. 880. Scr. 15. The provisions of the 26th and 27th sections of the act passed the 28th of March 1814, entitled “An act establishing a fee-bill,’’ are hereby re-enacted and declared to be in as full force as if herein recited: Provided, that no action shall be sustained by virtue thereof, or by virtue of the 14th section of this act, unless the same shall be brought within six months after the cause of action shall have ac- crued: And provided also, That it shall be lawful for the recorder of deeds and register of wills to receive the fees for recording the same, at the time the deed or deeds, will or wills, are left at his office for recording, any law or usage to the contrary notwithstanding. Act 28 Marcu 1820. Purd. 880. Sect. 3. In all cases where any constable shall collect or receive the debt, interest and costs, or any part thereof, of any execution, it shall be his duty to'make out and deliver to the defendant or defendants in such an execution, a bill of particulars of his fees and charges, together with a receipt, signed by him, for the same, if paid; and if any constable shall neglect or refuse, upon application to him made by the party interested, to give such bill or receipt, he shall, for such neglect or refusal, forfeit and pay the sum of ten dollars, to be recovered in the manner and for the use prescribed in the act to which this is a supplement. Act 22 Frpruary 1821. Purd. 880. Szcr. 14. All officers whose fees are by this act and by the act entitled “ An act to establish a fee bill,’’ passed the 28th March 1814, ascertained, limited and appointed, shall and are hereby required to make fair tables of their respective fees according to the said acts, and to publish and keep up the same in their respective offices, within six months after the passing of this act, in some conspicuous part, for the inspection of all persons who shall have business in said offices. And if any such officer shall neglect to publish and keep up a table of the fees. in his office as aforesaid, in such case, such officer shall pay to any person aggrieved the sum of ten dollars, together with double the amount of the excess of fees, if any, which such person may have paid to the said officer, to be recovered with costs of suit, by action of debt, in the same manner as other debts are by law recoverable. Act 31 Marcu 1860. Purd. 881. Sscr. 12. If any justice, clerk, prothonotary, sheriff, coroner, constable or other officer of this commonwealth, shall wilfully and fraudulently receive or take any re- 460 FEMALES. ward or fee to execute and do his duty and office, but such as is or shall be allowed by some act of assembly of this commonwealth ; or shall receive or take, by color of his office, any fee or reward whatever, not, or more than is allowed as aforesaid ; he shall be deemed guilty of a misdemeanor in office, and on conviction, be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment, not exceeding one year. Pemales, [See Inrants.] By article x. section 3 of the constitution of 1874, women twenty-one years of age and upwards are made eligible to any office of control or management under the school laws of this state. The act 14th April 1893,’ declares them to be eligible to the office of notary-public. By the act 16th April 1850,? females are permitted to vote by proxy at bank elections. The act 8th February 1819 * provides that no female shall be arrested or imprisoned for or by reason of any debt contracted after the passage of that act. This provision was re-enacted by the 6th section of the act 13th June 1836. Women are not relieved from arrest for debt by the act 12th July 1842, but by the act of 1819, and therefore a warrant of arrest cannot issue against a female.* The act 22d March 1887° provides that seats shall be provided for female employés, and the second section punishes a violation of the act by a fine of not less than twenty- five, nor more than fifty dollars. The act 2d June 1891° prohibits the employment of females in anthracite mines, and the act 15th April 1893" prohibits their employment in bituminous mines. See also the act 30th June 1885.° The act 4th June 1879° provides for the employment of female physicians in insane hospitals who shall have control of female inmates, such physicians to be appointed for a term not exceeding five years. The act 14th April 1893 provides that insane female patients shall have a female attendant when in transit. The act 22d May 1879" forbids the attendance of female waiters in places of amuse- ment and the act 28th March 1878” forbids their employment in inns, taverns or eating houses, or places where liquors are sold. SF enees. Act 11 Marcu 1842. Purd. 904. Sect. 1. In addition to the duties now imposed upon the township auditors, they shall hereafter perform the duties hereinafter prescribed as fence-viewers. In addi- tion to the oath now prescribed to be taken by the auditors, they shall annually be sworn or affirmed to discharge their duties as such viewers, faithfully and impartially. Sect. 2. In case of the death, removal or resignation of any fence-viewers and auditors, so elected, the judges of the court of the proper county shall appoint a suit- able person to fill the vacancy, for the unexpired term of the person whose place is vacant. Scr. 3. When any two persons shall improve lands adjacent to each other, or where any person shall enclose any land adjoining to another’s land already fenced in, so that any part of the first person’s fence becomes the partition-fence between them, in both these cases, the charge of such division-fence, so far as is enclosed on both sides, shall be equally borne and maintained by both parties. 1 Purd. 1607. 7 Purd. 1372, i Ibid. 186. 8 Tbid. 902. Ibid. 67. 9 Ibid. 992. 417Tr. & H. Pr. 3 241. 10 Tbid. 1259. 5 Purd. 902. 11 Thid. 105. 6 Thid. 1351. 12 Thid. 1022. FENCES. 461 Sect. 4. On notice given, the said viewers shall, within five days thereafter, view and examine any line fence, as aforesaid, and shall make out a certificate in writing, setting forth whether, in their opinion, the fence of’ one has been already built, is sufficient, and if not, what proportion of the expense of building a new or repairing the old fence, should be borne by each party, and in each case, they shall set forth the ° sum which, in their judgment, each party ought to pay to the other, in case he shall repair or build his proportion of the fence, a copy of which certificate shall be deliv- ered to each of the parties; and the said viewers shall receive the sum of one dollar for every day necessarily spent by them, in the discharge of their duties, which they shall be entitled to receive from the delinquent party, or in equal sums from each, as they shall decide to be just. Szcr. 5. If the party who shall be delinquent in making or repairing of any fence, shall not, within ten days after a copy of the certificate of the viewers shall have been delivered to him, proceed to repair or build the said fence, and complete the same in a reasonable time, it shall be lawful for the parties agerieved to repair or build the said fence ; and he may bring suit before any justice of the peace or alderman against the delinquent party, and recover, as in other actions, for work, labor, service done and materials found ; and either party may appeal from the decision of the justice or alderman, as in other cases. Szcr. 6. The said viewers shall not be called out to view any fence between the Ist day of November and the 1st day of April of the next year. Szcr. 7. If any viewer shall neglect or refuse to perform any duty herein enjoined upon him, he shall pay for each such neglect or refusal the sum of three dollars, to be recovered by the party aggrieved as debts of a like amount are recoverable. Sct. 8. A majority of the viewers in each township shall be a quorum, and shall have power to do all the duties herein assigned. Act 11 Marcw 1862. Purd. 905. Scr. 1. The board of surveyors and regulators of the city of Philadelphia shall, in addition to the duties now imposed upon them, perform the duties hereinafter pre- scribed as fence-viewers; that in addition to the oath now prescribed to be taken by the said surveyors and regulators, they shall be sworn or affirmed to discharge their duties as such viewers, faithfully and impartially. Sect. 2. On application made to the said board of surveyors and regulators, the president shall, at the first meeting of said board thereafter, appoint three members thereof, who shall, within five days thereafter, proceed to view and examine any line or partition-fence, and shall make out a certificate in writing, setting forth whether, in their opinion, the fence, if one has been already built, is lawful or otherwise; and if not lawful, or if no fence is built upon said line, then stating what proportion of cost, repairing the old or building a new fence, should be borne by each party; and in each case they shall set forth the sum each party ought to pay to the other, in case he should build or repair the other party’s portion of said fence, a copy of which certifi- cate shall be delivered to each of the parties ; and they shall also present to the said board, at the next stated meeting thereafter, a report of their proceedings, which report, if approved by said board, after hearing of the parties interested, shall be final and conclusive. Szcr. 3. All partition-fences dividing enclosed lands within the rural districts of the said city of Philadelphia, shall be substantially made, at least four feet six inches high, and of sufficient rails or logs, the bottom rail or log to be not more than eight inches above the ground; and in the built-up portions of said city, a tight board or palisade fence, substantially built, at least six feet high; and in either case, the said viewers and board of surveyors and regulators shall have power to designate the kind of fence to be built: Provided, The cost in the rural districts shall not exceed twelve cents per lineal foot, and in the built-up portions of said city, not exceeding twenty- five cents per lineal foot. Sxcr. 4. In all cases where a building shall be a part of such party-fence, the owner of the ground on which such building is erected, shall be allowed for so much of said bujlding as forms part of the partition, as part of his share of the whole fence, in pro- portion to the cost of the whole; and in case the parties shall agree to divide any partition-fence between them, such agreement, setting forth the kind of fence, and 462 FERRIES. what portion of the same each party shall make and keep in repair, shall be filed in the office of the board of surveyors and regulators, to be there kept as a public record. Act 22 Marcu 1865. Purd. 906. Sect. 1. If the party who shall be delinquent in making or repairing any fence, in accordance with the provisions of the act of which this is a supplement, shall not, within ten days after the report shall have been approved by the board of surveyors, proceed to repair or build said fence, and complete the same in a reasonable time, it shall be lawful for the parties aggrieved to repair or build said fence ; and if the costs for the work done and materials furnished are not paid by the delinquent party, within three months after the completion of the same, a lien may be filed against the premises for said costs and expenses, which shall be of the same effect, and may be sued out and collected in the same manner as municipal claims are now by law collected. Act 6 May 1870. Purd. 906. Sect. 1. The duties required to be performed by the board of surveyors and regu- lators of the city of Philadelphia, as fence-viewers, as provided by the act of March 11, 1862, shall be performed by the building inspectors of said city, who shall have authority to fix the prices to be paid for the erection or repairs of said fences, or (as) may come under their official inspection, and they shall receive a fee of three dollars in each case, to be paid by the applicant for the view. Act 23 Marcu 1865. Purd. 906. Secr. 1. If any person or persons, from and after the passage of this act, shall, maliciously or wantonly, break or throw down any post and rail or other fence, erected for the enclosure of land, or shall carry away, break or destroy any post, rail or other material, of which such fence was built, enclosing any lots or fields within the commonwealth, such person or persons so offending shall be guilty of a misdemeanor, and on conviction, shall be sentenced to pay a fine, not exceeding fifty dollars, one-half thereof to be paid to the informer, on conviction of the offender or offenders, the other half to the support of the poor of such county, township, borough or ward where the offence has been committed, with costs of prosecution, or to undergo an im- prisonment, not exceeding six months, or both or either, at the discretion of the court. The fence law of 1700 was repealed by the act 4th April 1889, P. L. 27. Since the passage of that act a land owner is not required to fence cattle out; their owner must fence them in.’ Since the passage of that act, the owner of cattle who is sued for damages for the trespass of his cattle, must show, to prevent recovery, that he kept his cattle in or tried to, by a sufficient fence.?