ir^', y :SI' Kfp QJornpll IGatw irlyonl Hjibrary KFP szojBeTiasi"^ '"""^'^ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024704318 UECOMMENDATIONS OF BINNS'S JUSTICE OF THE PEACE. "Philadelphia, January 28, 1840. Dear Sir : The sheets of ' Binns's Justice,' which you did me the honour to ibmit to my inspection, have been carefully examined; and thouglL sensible that athing detracts so much from the value of a recommendation as an apparent dispo- •ti Sisal he has been too unwell to peruse much of it. He has been in court even 7 but at home has been lying on a bed most of his time. He can, therefore, onl) v'that from the very limited inspection of the work, he has formed a very favour le opinion of it, and beUeves it will be what, from his knowledge of the author, and ini the general character of the author, he, and the community, expected, viz. : a U and accurate treatise on the office and duties of a justice of the peace. February 1, 1840. ,., RECOMMENDATIONS OF THE SECOND EDITION. "February 3, 1845. Dear Sir: The forthcoming * Magistrate's Daily Companion' is a 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 cheap and easy means of obtaining a competent .knowledge of the laws under which he Hves. In affairs of magnitude 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 ofiered to him, than from the scattered pages of a law-library, were it even at hand. For instance, the farmer, the labourer, the mechanic, or the shop-keeper, who attends to your instructions, vdll no longer be in danger of losing the price of his work or his goods, from ignorance of the fe^ and simple elements of book-entries to charge a customer. These abstracts are not only accurately 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, February 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 ar- rangement is capital, and you have taken great pains to ensure its legal accuracy. I 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 livewhen you are dead. Every relation in life will find your book useful. • With respect, your obedient servant, THOS. BURNSIDE," Oneofthe Justices of the Supreme Court of Pennsylvania. Alderman John Binns. ' (ii) RECOMMENDATIONS OF THE THIRD EDITION. From, tJie Legal Inteliigencer. 1 hat a third edition of this excellent work should be required so soon after the second, IS a gratifying proof that law, (which Hume declares to be a plant of slow growth,) begins to grow apace and flourish in the soil of Pennsylvania. It may with confi- dence be asserted, that the two large editions of this book, already distributed among magistrates and other public functionaries, as well as among the intelligent farmers and men of busmess of Pennsylvania, have been the means of diffusing a greater amount of useful and correct information relative to the most practical parts of the law of the land, than any other work ever published within the State. The venerable and remarkable author of the work possessed very peculiar advantages from long ex- perience and familiarity, npt only with those branches of the law about which he wrote, but the actual mode of administering them as a magistrate ; and the practical manner in which the numerous titles are treated, is one of those characteristics of the work which has rendered it so useful and popular. Mr. Brightly, the editor of the present edition, is favourably known to the profession, among other things, by bis very accurate and elaborate work on Costs. Though he has remodelled Binns' Jus- tice, and added many titles entirely new, yet he has paid a just tribute to the merit of the ori^al, wherever that text occurs, by retaining its very language, with but little alteration. The Acts of Assembly, and decisions which have accumulated since the second edition, are incorporated with their appropriate titles. A new and very full index, (the very soul of a law book, which is composed of many thousand items,) gives the present edition a decided advantage in this respecl, not only over previous editions, but over most other law books. The work in its present form does for the magistrates and men of business of Pennsylvania, what has been done for those of England by Burns' Justice, a work so highly esteemed in that country, as to have passed through about thirty editions of four large volumes. li-om the North American. Our acknowledgments are due to the publishers, Kay & Brother, Market street, for a copy of the third edition, which they have just issued, of this standard work, whose value is so well known to Aldermen and Justices of the Peace. The revision of the new edition was entrusted to Frederick C. Brightly, Esq., of the Phila- delphia Bar, author of "A Treatise on the Law of Costs," by whom it has been cor- rected and greatly enlarged. With these superadded merits, it does not stand in need of any eulogy from us. It carries its recommendation in its name. (iii) RECOMMENDATIONS OP THE THIKD EDITION. From the Judges of. the Sv/^eme Court of Pennsylvania, Messrs. Kay & Brother : Gentlemen: Binns' Justice is not only the best, but the only very good book that" we have on the subject. The present edition, containing, as it does, a large addition of valuable and well-digested matter, makes it all that the magistrate can desire. JOHN B. GIBSON, Chief Justice of the Supreme CSourt. MOLTON C. ROGERS, T. BURNSIDE, B. COULTER, THOS. S. BELL, Justices of the Supreme Criurt From His Excellei/icy W. F. Johnston, Governor of the State of Pennsylvania. Harrisbtjrg, Feb. 25, 1850. Messrs. Kay and Brother : Dear Sirs : I have been furnished by your kindness with a copy of the third edition of Binns' Justice. Please accept my thanks. I have taken the earliest moment of leisurq afforded from official engagements to examine this work, and it gives me pleasure to be enabled, from such examination, to state that it is admirably well adapted to aid the Aldermen and Justices of the Com- monwealth, and others, in a correct and pleasing discharge of their duties. I am truly yours, WM. F. JOHNSTON. From the American Law Joumcd. \Ve are glad to see a new edition of this useful book edited by our friend, F. C. Brightly, Esq. The reputation of the book is so well established, that any com- mendation of ours would add nothing to it. It gives the fruits of experience and learning, and cannot fail to be of great value to every ma^strate in the State as a compendious, yet sufficiently full treatise upon, and repository of, legal principles to which he may readily resort. Mr. Brightly's additions and, alterations have given the book a new and increased value. The accurate and scientific manner in which the authorities and statutes are collected, cited, arranged and applied, will command the attention of the profession, and be useful to the lawyer, as well as the magistrate. We commend the volume as an indispensable appendage of every magistrate's office. (iv) BINNS' JUSTICE, OB ittagistrate's JDailg Companion. A TREATISE ON THE OFFICE AND DUTIES OF ALDERMEN AND JUSTICES OF THE PEACE, IN THE Cammonrucaltl) of J)enn0gl»ama, INCLUDING ALL THE REOUIRED FOKMS OF PROCESS AND DOCKET-ENTRIES, AXD EMBODYING NOT ONLY WHATEVER MAY BE DEEMED VALUABLE TO JUSTICES OF THE PEAt)E, 8CT TO LANDLOBDS, TENANTS, AND GENERAL AGENTS; AND MAKING THIS VOLUME, WHAT [T PURPORTS TO BE, % idi ITtgiil (inih for aSnsiufss Mn. BY JOHN BINNS, lATB ALDERMAJf OF WALNUT WARD, IinfllE CITV OF PHII«lDELFHIA, THE FIFTH EDITION, REVISED, CORRECTED, AND GREATLY ENLARGED BY FREDEBICK C. BRIGHTLY, ESQ., 9t THI PBItADSLPHJA BA»( AUTHOB OF "A TKEATIBE OK THS LAW OT 005II.' PHILADELPHIA: JAMES KAY, JUN., & BROTHER, 193 MARKET STREET, LAW BOOKSELLERS AHD PUBLISHERS. 1852. Ektsred according to the Act of Congress, in the year 1851, by James Kat, Jun., and Bkothbr, in the Clerk's Office of the District Court of the United States, in and for the Easteni District of Pennsylvania. ADVERTISEMENT TO THE FOURTH EDITION. The rapid sale of this useful work having entirely exhausted the third edition in the short period of fifteen months, and given additional evidence of the high estimation in which it is held bjr the magistracy, as well as the business portion of this community, the publishers have availed themselves of the oppor- tunity to cause the work to be again thoroughly revised by the Editor of the last edition. The laws passed at the last two sessions of the Legislature have been incorporaited, and the Entire book has been revised by reference to the decisions of the Supreme Court, subsequent to the publication of the tenth volume of Barr's State Reports to 2d Hams, inclusive. This has occasioned some alteration to be made in the "forms" herein contained, which will now be found to conform to the law, as settled by the latest decisions. , In this work, and its companion, " GrBATDON's Forms," (the reputation of which is so well established as to need no eulogy,) the Magistrate will find all the information necessary to a correct discharge of the important duties confided to him by the Laws of Pennsylvania. ' Philadelphia, August 1, 1851. (vu) . PREFACE TO THE THIRD EDITION. The Editor of the present edition of BINNS' JUSTICE, or Magistrates' Daily -Companion, has adapted this valuable Work to the present state of the law, by introducing the statutes and judicial decisions promulgated since the publication of the. second edition. Wherever it was possible, the text of the learned author has been preserved untouched, and the more recent matter has been added ; in some instances, howeVfer, it was necessary to remodel an entire title, but still the endeavour of the Editor has been to give the very language of Mr. Binns, with as little alter- ation as was possible. Many entirely. new titles, have been added to the Work, which, it is hoped, will increase its usefulness ; they Kave, nevertheless, been prepared according to the original plan of the Work, so far as the present Editor could hope to carry it out. The seventh edition of Purdon's Digest, and the second edition of Dunlop's, Digest, have been- referred to, whenever it became necefesary'to cite an Act of Assembly. F. C. B. PuiL&DELFHiA, Januajy, L850. (viii) PREFACE TO THE SECOND EDITION. "BiNNs's Justice," which was published in 1840, was read and' purchased with an avidity beyond my most sanguine hopes. When I determined to prepare the present work for the press, I felt the deep responsibility which public approbation had imposed, and determined to spare neither time nor research, to profit in its .compilation, by the experience acquired in the preceding publica- tion. In the writing, arranging, and compiling of this work, even more than on a former occasion, I have been indebted to some of my legal friends for* the zeal and anxiety which' they have mani- fested, and the promptitude with which they have given time and labour, to enable me faithfully, and to the letter, to carry out all the promises of my prospectus, and in the Appendix to give much valu- able matter neither promised nor expected. It would be a most unbecoming affectation, if I were to forbear an acknowledgment of the pride and pleasure I feel in the repeated . assurances I have had, from magistrates in various districts of the state, and from others, whose opportunities and knowledge give weight to their statements, that the business of the justices of peace throughout the commonwealth is better conducted, and their docket-entries are in more commendable forms than they were five years past. If I do not deceive myself, and if others, who have seen the pages of this volume, are not also mistaken, the present work will be found more useful, more accurate, and more entirely to be relied • on than the former volume. That the magistrates of the commonwealth may daily more deeply feel the importance of the station which they occupy, and (ix) X PREFACE. their high responsibilities, must be the wish of every Pennsylvanian. To contribute to the attainment of so desirable an object as the faithful administration of the laws, first moved me to devote my attention to these publications, and has never ceased to animate me in all I have written on the subject. JOHN BINNS. Philadelphia, February 9, 1845. PEEFACE TO BINNS'S JUSTICE. Long and deeply impressed with the influence which magistrates must necessarily exercise over the puhlic mind, it has appeared to the writer, that the man who should most effectually turn that influ- ence to the insurance of the public peace, and of honesty and fair dealing, between man and man, would render an essential and im- portant 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 be- lieved, that the law is plainly laid down ; that honest and honour- able feelings are cherished; and that every thing 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 to complete. He has laboured 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 honour, while it inspired him with hope and confidence. He is especially under obligations to the gentlemen of the bar. They have not only freely bestowed their advice, and corrected his errors; but some of them, with a friendli- ness and regard, which he will never forget, have given their time, and their talents, and their knowledge, to contribute to the more perfeet completion of this work. Care shall be taken from time to time, to note whatever improve- 2U xu PREFACE TO BINNS'S JUSTICE, 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 approbation. To assist in accomplishing this object, advice, information, and correction, are respectfully invited. An anxiety to make this volume useful to men of business, gene- rally, and a desire to avoid references from / one part of the work to another; have, it is feared, occasionally caused the publication of matter which, however its usefulness may be acknowledged, may sometimes be thought out of place. This anxiety and desire have also caused the publication of direc- tions 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 thaf influence may be, it will be on the side of justice. JOHN BINNS. Philadelphia, February 1, 1840. TABLE OF CONTENTS. ConBtituiabh of the United States, with od. Index . , . .',', .....'.■..■.'..'.......' xv Cons&ution of Pennsylvama, with an Index xxix Vocabulary of Law Terms .... xlix Technical law terius explained ..'..., ...'..' Ixv Law Phrskses, &c., traiialatod , Ixviii Abatement ...... 1. ...... i 71 Abortion 73 Accessary , 73 Actions at Law 76 Actions against Justices of the Peace. 354 Acts of Assembly 78 Adultery ,. , ., g2 Advice. .' i 83 Affray .84 Amendment . . . . .^ . . , .'..'. 86. Appeal ; . 86 Aj^rentices ...................... ^ 92 Arrest . . .'. .■ .•. 104 Arson 105 Assault and Battery 107 Assignment ........ .i ......... .... 105 Assumpsit .,! . .!.....'. i .... ... Ill Attachment, Domestic . . Ill Attachment against absent and fraudu- knt debtors .115 Attachment in Execution. . . 120 Attachment for a Witness ., , 130 Attorney, Letters of , 131 Attorneys at Law 131 Auctions .........". ', , 133 Bail in Civil cases 135 Bail and Commitment in Criminal cases 137,566 Bailment 140 Banks 141 Barrator 143 Bible, Family 144 Bigamy 144 Bills of. Exchange 144 Bonds '. ■ .;.: .147' Books required by a Magistrate 147 Bread and Flour 148 Bribery 150 Burglary 151 Canals and Railroads 153 Certiorari 153 Common Carriers 157 Common Law 158' Common Scold ...;.. 159^ Conspiracy •-■ 1^9 Constables ■ ., 160 Contract ■ V-." 1'?! Coroner . 568 iCorporation, , 173 Costs 176 Counties and Tpvnships i 178 Covenant .' '. . . 179 Custoin and Usage ................. 179 Damages ., J180 Debt.... 180 Debtor and Creditor 182 Deeds and Mortgages 183 Defalcation . . .'..'..'......... 186 Distress for Rent .......'..'..... 572 Docket. 189 Docket Enferies and Fees ....'....' 192 Docket in Criminal Cases . ......;.... 203 Domestic Attachment Ill Drunkenness , 205 Duelling 207 Eiaves^dropping 208 Elections • 584 Escape. ..■.■..■.■....■..:.:.:;;.. 209 •Evidence 210 Execution 224 E^eocutors and Administrators 230 Extortion ■ 233 Factors 234 Factories 235 False Imprisonment 278 False Pretences 236 .Fees 192, 241 Female. 246 Ferries. 247 Fire, Firing of Guns or Woods 249 Fixtures ..... . . . . .'. 252 Forcible Entry and Detainer .... 253, 561 Forgery .'. .'. . ... .'...'.' 255 Forhicatioii and Bastardy ........... 256 Foxes and Wild Cats 545 Frauds ". 260 Freeholder 261 Fugitives from Justice 261 ,Fugitiye Slaves 450 Gambling and Lotteries 263 Guasranty 268 Hawkers and Pedlers 269 llomicide ..;.•: 271 Horse Racing. 272 Horse Stealing 274 Hunting 276 Husband and Wife 277 XIV TABLE OF CONTENTS. ImpriBonment, False 278 Indictment 278 Infant ; 278 Informers ' 280 Inns and Taverns 280 Insolvent LaWs 283 Instalments 298 Interest 298 Interest, Usurious 300 Intestates .......'. 676 Jail 301 Judgment •. 301 Judgment, Lien of . 302 Jurisdiction of Justices of the Peace . 357 Justices of the Peace- or Aldermen 305, 577 Justices of the Peace, actions against. 354 Justices of the Peace; jurisdiction of the 357 Justices of the Peace, jurisdiction of, under U. S. laws 359 Landlord and Tenant 361 Land Marks 384 Larceny 504 Law Forms 385 Letters of Attorney 131 Libel 419 Lien ;. 426 Lien of Judgment .'. 302 Limitation of Actions 421 Malicious Mischief 425 Malicious Prosecution 428 Markets ■.....-...".... 428 Marriage 429 Master and Servant 435 Mechanics' Lien 436 Mill Dams ;. 447 Misfeasance 448 Money 448 Name 448 Naturalization Laws 625 Negligence * 449 Negroes and Fugitive Slaves 450 Notary Public 451 Notice 451 Nuisance 452 Oaths a;nd Affirmations 453 Officers, Public 454 Original Entries 455 Parent and Child 457 Partnership 459 Party ■Wall. 468 Pawns or Pledges 469 Penal Laws ^^2 Penalties ; 470 Perjury and subornation of Pequry . . 470 Physicians 472 Poor Laws 472 Principal and Agent 481 Privilege.. 482 Process 484 Profaneness 485 PromisBory'Notes .....; J 486 Prothonotary 492 Purchasers at Sheriffs' Sales 492 Rape . 498 : 499 ReU^ous Societies _. . . 500 Riot, Routs, and Unlawful Assemblies . 501 Robbery and Larceny 504 Sale of Ileal Estate 507 Sale of Personal Property 508 Scire Facias 671 Seal. 512 Search Warrants 512 Seduction . . . .- 514 Shipping;. 515 Stage Coacbes 516 Statutes 78,547 Summary Convictions 517 Summons for Debt 520 Sunday 523 Surety of the Peace 525 Swine 527 Tender 529 Time 530 Trade Marks 531 Transcript 533 Trespass 534 Trover and Conversion 536 Vagrants 538 Wp.ger8 540 Warrant for Debt 542 Weapons 543 Weights and Measures 544 Wolves and Panthers 545 APPENDIX. Observations on the Construction, Inter- pretation, and Exposition of Statutes 547 Penal Laws 552 Forcible Entry and Detainer 561 Of the Bailment and Examination of Prisoners 566 Of the Coroner 568 Distress for Rent 572 Jail Delivery 577 Justices of the Peace 577 A Table of British Statutes 577 General Election Laws 584 Acts of Congress for the Naturalization of Aliens 625 The Civil Code 628 Charter of the province of Pennsylvania 630 Certain Conditions or Concessions .... 636 The Frame of the Government 638 Laws agreed upon in England 644 The Frame of the Government 1683 . : 647 The Frame of the Government 1696 . . 651 The Rights and Duties of Jurymen. . . 657 Intestates 676 CONSTITUTION OP The UNITED STATES OF AMERICA.* We the People of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common detence, 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. ARTICLE I. [of the legislative power.] section i. 1. All legislative powers herein granted shall be vested in a Congress Legislative of the United States^ which shall consist of a Senate and House of Repre- powers, sentatives. vested. SECTION IL '1. The House of Representatives shall he composed of members chosen House of every second year by the people of the several States, and the electors in Rep. of its each State shall have the qualifications requisite lor electors of the most election, numerous branch of the State Legislature. 2. No person shall be a Representative who shall not have attained to Qualifica- 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 Apportion- several States which may be included within this Union, according to their mentofRep. Respective numbers, whifeh shall be determined by adding to the whole f" _ f^Jt number of free persons, including those bound to service for a term of number of years, and excluding Indians not taxed, three-fiilhs of all other persons. States repre. The actual enumeration shall be made within three years after the first sented in meeting of the Congress of the United States, and within every subsequent ^'^^• term often yeats, in such manner as they shall by law direct. The num- ber of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative ; and until such enume- ration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Promdence Planta- tions one, Connecticut five. New- York six, New-Jersey four, Pennsylva- nia aght, 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 y^^^SK^' Executive authority thereof shall issue writs of election to fill such vacancies. "°'' ""™' 5. The House of Representatives shall choose their Speaker and other Officers, officers ; and shall have the sole pov\^er of itnpeachment. ^°^ chosen, SECTION in. 1. The Senate of the United States shall be composed of two Senators Senators, from each State, chosen by the legislature thereof, for six years ; and each bow chosen, Senator shall have one vote. _ * This Constitution went into operation qn the first Wednesday in March, 1789. 5 Wheat. 420.. XV xvi CONSTITUTION OF THE UNITED STATES. Of the clas- g. Immediately after they shall be assembled in consequence of the first f'*'°5'"" °^ election, they shall be divided as equally as may be into three classes, and vacan. ^he seats of the Senators of the first class shall be vacated at the expira- cies. tion of the second year, of the second class . at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one- third may be chosen every second year ; and if vacancies happen by resig- nation, or otherwise, during the recess of the Legislature of any state, the executive thereof may make temporary appointments, until the next meet- ing of the Legislature, which shall then fill such vacancies. Qnalifica- 3, No person shall be a Senator who shall not have attained to the age Senator. "'" '•'''"'y y^^^^ ^"'^ ^^^ "'"® y^^""^ ^ citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. Vice-Presi- 4. The Vice-President of the United States shall be President of, the dent's vote, gg^^jg^ ^yj gj,^U jj^yg ^o ^ote, unless they be equally divided. Of the offi- 5. The Senate shall choose their other officers, and also a President cers, how pro4empore, in the absence of the Vice-President or when he shall exercise chosen. ji^g ^gj^g ^j. pjggidgut of the United States. . The Senate, 6. The Senate shall have the sole power to try all impeachments ; when totryaU sitting for that purpose, they shall be on oath or afiirmation. When the merits. ' President of the United States is tried, the Chief Justice shall preside ; and no person shall, be convicted without the concurrence of two-thirds of the members present. Judgment 7. Judgment in cases of impeachment shall not extend further than to on donvic- removal from office, and disqualification to hold and enjoy any office of peaohmen"' ^lo^our, 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. SECTION IV. Of the elec- 1. The times, places, and ma.nner of holding elections for Senators and tion of raem- Representatives, shall be prescribed in each state by the legislature thereof; bers of Con- ^^^ ^^^ Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. When Con. 2. The Congress shall assemble at least once in every year, and such gress shall ^neeting shall be on the first Monday in December, unless they shall by law appoint a different day. SECTION V. I caoh^House ^' ^^^^ House shall be the judge of the elections, returns andqualifica- -of a quorum ''O^s of its own members, and a majority of each shall constitute a quorum and of a to do business ; but a smaller number may adjourn from day to day, and smaller may be authorized to compel the attendance of absent members, in such number. manner, and under such penalties as each House may provide. May make 2. Each House may determine the rules of its proceedings, punish its rules and members for disorderly behaviour, and, with the concurrence of two-thirds, expel mem- 1 u j^jTg^ expel a member. Thev shall ^' ^'^^ House shall keep a journal of its proceedings, and from time to keep a jour- time publish the same, excepting such parts as may in their judgment re- nal and re- quire secrecy ; and the yeas and nays of the members of either House on cord the ^ny question shall, at the desire of one-fifth of those present, be entered on yeas an the journal. Of their ad- ^* Neither House, during the Session of Congress, shall, without the journments. 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. SECTION VI. Corapenso- 1. The Senators and Representatives shall receive a compensation tion of mem- for their services, to be ascertained by law, and paid out of the Treasury hers. Privi- ^f jjjg United States. They shall in all cases, except treason, felony, Jests'* "' *'"*' breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning CONSTITUTION OF THE UNITED STATES. xvii 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 .ofGce under the authority of the United States, which shall have been created, or the emoluments whereof Their exda- 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 ^^g'" his continuance in office. SECTION VIL 1. All bills for raising revenue shall originate in the House of Repre- Qf Revenue sentatives .; but the Senate may propose, or concur with, amendments, as Bills. on other bills. 2. Every bill which shall, have peissed the House of Representatives How bills and the Senate, shall, before it become a law, be presented to the President shall become of the United States ; if he approve he shall sign it, but if not he shall laws— of the return it, with his objections, to that House in which it shall have originated, President's who shall enter the objections at large on their journal, and proceed '° XwaihirdsT reconsider it. If after such reconsideration,- two-thirds of that House shall required hj. agree, to pass the bill, it shall be sent, together with the objections, to the yeas and other House, by\which it shall likewise be reconsidered, and if approved "^J'*'- by two-thirds of that House, it shall become. a law. But in all such oases, the votes of both Houses shall be determined by yeas and nays, and the names of the persoQ^ 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,^he same shall be a law, in like manner as if he had. signed it, unless the 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 Orders, reso-- Senate and House of Representatives may be necessary (except on a lutions, and question of adjournment) shall be presented to the President of the United votes, how States ; and before the same shall take effect, shall be approved by him, *''*? ""^^ or, being disapproved by him, shall be repassed by two-thirds of the ^ Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. section viii. ' [op the powers granted to congress.] 1. The Congress shall have power to lay and collect taxes, duties, ^^^^1^^^ imposts and excises^ to pay the debts and provide for the common defence j^y taxes, and general welfare of the Ui\ited States ; but all duties, imposts and excises, shall be uniform throughout the United States ; 2. To borrow money on the credit of the United States ; Borrow mo-- 3. To regulate commerce with foreign nations, and among the several "^y. States, and with the Indian tribes ; Commerce. 4. To establish an uniform rule of naturalization, and uniform laws on Ngjuraliza- the subject of bankruptcies throughout the United States ; tion, &c. 5j To coin money, regulate the value thereof, and of foreign coin, and q^^^ ^^ fix the standard of weights and measures ; 6. To provide for the punishment of counterfeiting the securities and Punishcoun- current coin of the United States ; terfeiting. 7. To establish post offices and post roads ; J™' offices, B. To promote the progress of science and useful arts, by securing for p^^^^^j^ limited times to authors and inventors the exclusive right to their respective science, writings and discoveries ; Congress 9. To constitute tribunals inferior to the supreme court ; constitute 10. To define and punish piracies and felonies committed on the high ^^'^(gg i^^^ seas, and ofiences against the law of nations ; _ ' " 11. To declare war, grant letters of marque and reprisal, and make Declare rules concerning captures on land or water ; war, &c. B Raise urmics. Navy. Army. AlUitia. Organiie militia. Exclusive Jvgislation •over ten .miles. K/ongress make laws general. Importation of persons after 1803. fHiLbeas Cor- ,pua. Attainder, Tax. No exporta- tion duty. No preter- ■ i-nce in Commerce ■ower — te- Court, and in such inferior courts as the Congress may from time to time nure of of- ordain and establish. The judges, both of the supreme and inferior courts, fice and gjjj^[| jj^jj jjjgjj, offices during good behaviour, and shall, at stated times, fk)n''of "the receive for their, services, a compensation, which shall not be diminished judgres. during their continuance in office. SECTION 11. Extent of !• The judicial power shall extend to all cases in law and equity, aris- the judicial ing Under this constitution, the lavrs of the United States, and the tteaties power. made, or which shall be made, under their authority ; to all cases — affect- ing ambassadors, other public ministers, and consuls ;^-to all cases of ad- CONSTITUTION OF THE UNITED STATES. xx-i miralty and maritime jurisdiction ; — to controversies to which the United States shall be a party ; — ^to controversies between two or more States ; — between a State and citizens of another State ; — ^between citizens of different States, — between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof, and foreign States, citizens or subjects. 2. In all cases ai&ctingambas.sadors, other public ministers and consuls, jurisdiction and those in which a State shall be a party, the supreme court shall have of the Si - original jurisdiction. In all the other cases before-mentioned, the supreme preme cou.u, court shall have appellate jurisdictipn, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. 3. • The trial of all crimes,, except in cases of impeachment, shall be by Of trials for jury ; and such trial shall be held in the State where the^said crimes shall crimes. have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have! directed. SECTION in. 1. Treason a^nst the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. go„5*titute No person shall be convicted of treason unless on the testimony of two Treason, witnesses to the same overt act, or on confession in open court. 2. The Congress shall have power to declare the punishment of treason, q, .. but no attainder of treason shall work corruption of bloody or forfeiture jghinent. except during the life of the person attainted. ARTICLE IV. [oP THE BECORDS OF THE STATES.] SECTION I. Full faitliand ci«dit shall be given in each State to the public acts, re. Full faith to cords, and judicial proceedings of every other State. And the Congress States', re- may by general" laws prescrite the manner in which such acts, records, and i""™- proceedings shall be proved, and the effect th^«of> SECTION n. 1. The citizens of each State shall be entitled to all privileges and im- Rights of munities of citizens in the several States. citizens. 2. A person charged in any State with treason, felony, or other crime, Fugitives, who shall flee from justice, and be .found in another State, shaH on demand *^e-. '« be of the executive authority of the State from which he fled, be delivered up, "e"™"" "P- to be removed to the State having jurisdiction of the crime. 3. No person held to service or labour in one Sfat6 under the lavra there- Of Fugitives of,e^apirtg into another, shall, in consequence of any law or regulation from service, therein, be discharged from such service or labour, but shall be delivered *■"• up on claim of the party to whom such service or^ labour may h€^ due. SECTION III. 1. New States may be admitted by the Congress into this Union ; but g^J^^^^^^ no new State shall be formed or erected within the jurisdiction of any other j^^ ^^^J State; nor any State be formed by the junction of two or more States, or ^^ admit- parts of States, without the consent of the Legislature of the States con- ted. cerned as well as of the Congress. 2. The Congress shall have power. to dispose of and, make all needful "^^ '''*„P',"'" rules and regdtations respjSQting the territory or other property belonging ^^^^ "^ to the United States; and nothing in this constitution, shall be so construed gj^^gg, as to prejudice any claims of the United States, or of any particular State. SECTION IV. The United States shall guaranty to every StEite in this Union a republi- A EepubU- can form of government, and shall protect, each of- them against invasion ; can form of and on application of the legislature, or of the executive (when the legis- g"™^"^^' lature cannot be convened) against domestic?- violence. ; xxu CONSTITUTION OF THE UNITED STATES. How this constitution may be amended. ARTICLE V. [of amenduemts to this constitution.] section i. The Congress, whenever two-thirds of both Houses shall deem it neces- sary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner afiect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI. [the public debt SUPREME LAW— aUALIFICATIONS, &C.] SECTION I. 1. All debts contracted and engagements entered into, before the adop- tion of this constitution, shall be as valid against the United States under, this constitution, as under the confederation. 2. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority lof the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, any thing in the constitution or laws,pf any State to the contrary notwithstaftding. 3. The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or afiirmalion, to support this constitution : but no religious test shall ever be required as a qualification to any office or public trust under the Un'ted States. ARTICLE VII. [or THE BATIFICATION OF THIS CONSTITUTION.] SECTION I. dAhe consU. '^^^ ratification of the conventions of nine States, shall be sufficient for tution. ' ^^^ establishment of this constitution between the States so ratifying the Of debts pri- or to the con- stitution. What shaU constitute the Supreme Law. Oath or affir- mation of Members. Done in convention by the unanimous consent of the States present, the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of America the twelfth. In witness whereof we have hereunto subscribed our names. G". WASHINGTON, President, and Deputy from Virginia. New-Hampshire, .Tohn Langdon, Nicholas Gilman. Massachusetts. Nathaniel Gorham, Ruilis King. Connecticut, William Samuel Johnson, Roger Sherman. New York. Alexander Hamilton. New Jersey. William Livingston, David Brearley, William Patterson, Jonathan Dayton. Pennsylvania. Benjamin Franklki, CONSTITUTION OF THE UNITED STATES. Thomas Mifflin, Danlol Carroll. Robert Morris, Virginia. George Clyraer, John Blair, Thomas Fitzsimons, James Madison, jr. Jared IngersoU, North Carolina. James Wilson, William Blount, Gouverneur Morris. Richard Dobbs Spaight, Delaware. Hugh Williamson. George Reed, South Carolina. Gunning Bedford, jun. John Rutledge, John Dickinson, Charles C. Pinckney, Richard Bassett, Charles Pinckney, • Jacob Broom. Pierce Butler. Maryland. Georgia. James M'Henry, William Few, Daniel of St. Tho. Jenifer, Abraham Baldwin. Attest: WILLIAM JACKSON, Secretary. AMENDMENTS. [The following twelve Amendments to the Constitution were proposed by Congress, and having been ratified by the legislatures of three-fourths of the States, as prescribed in Article V, have become parts of this constitution. The first ten articles were proposed in 1789, at the first session of the first Congress. The 11th article was proposed at the second session of the third Congress in 1793. The 12lh, and last adopted, amendment was proposed in 1803, at the first session of the eighth Congress.] ARTI'CLE L Congress shall make no law respecting an establishment of religion, or RightB of prohibiting the free exercise thereof; or abridging the freedom of speech, conscience, or of the press ; or the right of the people peaceably to assemble, and to thepressand petition the government for a redress of grievances. rights of the people. ARTICLE IL A well-regulated militia being necessary to the security of a free State, The right tc the right of the people to keep and bear arms shall not be infringed. ''^" "'"^' ARTICLE in. No soldier shall, in time of peace, be quartered in any house without the Quartering consent of the owner, nor in time of war, but in a manner to be prescribed "f troops, by law. ARTICLE IV. . The right of the people to be secure in their persons, houses, papers. No unrea- and efi«!Cts, against unreasonable searches and seizures, shall not be sonable violated ; and no warrants shall issue but upon probable cause, supported ^g?" ^ °' by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE V. No person shall be held to answer for a capital or otherwise infamous pjosj™^"*', crime, unless on a presentment or indictment of a grand jury, except in ^nd private ' cases arising in the land or naval forces, or in the militia when in actual property. xxiv CONSTITUTION OF THE UNITED STATJiiS. service, in time of war or public danger; nor shall any person be subject, for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. ARTICLE VI. The rights In all criminal prosecutions the accused shall enjoy the right to a speedy of the ac ^^j p^^j^. jj^^^j^ ^^ ^„ impartial jury of the State and district wherein the cured. °^ crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence. ARTICLE Vn. Trial by In suits at common law, where the value in controversy shall exceed jury secured twenty dollars, the right of trial by jury shall be preserved ; and no fact cases' *"^*^ ^y ^ J'^'^y ^^^^^ ^ otherwise re-examined in any court of the United , States, than according to the rules of the common law. ARTICLE VIIL Of bail and Excessive bail shall not be required, nor excessive fines imposed, not fines. cruel and' unusual punishments inflicted. ARTICLE IX. Reserved The enumeration in the constitution of certain rights shall not be con- rights, strued to deny or disparage others retained by the people. ARTICLE X. State rights. 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. ARTICLE XI. Of judicial The judicial power of the United States shall not be construed to extend A L^lil''^™ to any suit in law or equity commenced or prosecuted against one of the Scot. 3.]' , United States by citizens of another Stale, or by citizens or subjects of any foreign State. ; * ARTICLE XII. The manner The electors shall meet in their respective States (1) and vote by ballot of electing a for President and Vice-President, one oftwhom, at least, shall not be an President inhabitant of the same State with themselves ; they shall name in their President ; ballots the person voted for as President, and in distinct ballots the person shall be by voted for as Vice-President ; and they shall make distinct lists of all per- electors and sons voted for as President, and of all persons voted for as Vice-President, by ballot ; gjjj of the number of votes for each ; which lists they shall sign and certify, whom to be ^"'' transmit sealed (2) to the seat of the government of the United States, returned, directed to the President of the Senate : the President of the Senate and by shall, in presence of the Senate and House of Representatives, open all whom open- the certificates,(3) 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 (1) By an act of Congress passed March 1, 1793, tlie electors meet on the first Wcdnesda/ in December. (3) By the same act of Congress, these duties are to be discharged before the first Wednesday in January. (3) The same act provides that this duty shall be performed on the second Wednesday in February CONSTITUTION OF THE UNITED STATES. xxv highest, numbers, not exceeding three, on the list of those voted for as Proceedings President, tlie House of Representatives shall choose, imnoediately, by '" *-'°"S"'" ballotj the President* . But, in choosing the President, the votes shall be pereon^shall taken by States, the representation from each Slate having one vote; a have the quorum for this purpose shall consist of a member or members from- two- number of thirds of the States, and a majority of all the States shall be necessary to ™t«s neces- a choice. And if the House of Representatives shall not choose a President chmce for whenever the right of choice shall devolve upon them, before the fourth President or day of March next following, then the Vice-President shall act as President Vice-Presi- as in the case of the death or other constitutional disability of the President, ^ent. The person having the greatest number of votes as Vice-President shall Of the be the Vice-President, if such number be a majority of .the whole number choice of ihg of electors appointed; and if no person have a majorityj then, from the two p'^^r , ■ 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. But no person constitutionally ineligible to the office of President, shall be eligible to that of Vice-President of the United States. INDEX CONSTITUTION OF THE UNITED STATES. All. Sec Acts, records, and judicial proceedings of each State, entitled to iiiith and credit in other States 4 1 Amendments to the Constitution, how made 5 1 Appropriations by law. — See Treasury . . 1 9 Attainder, bill of, prohibited 1 9 Attainder, of treason, shall not work cor- ruption of blood or forfeiture, ex- cept during the life of the person attainted 3 3 Bills for raising revenue, shall originate in the House of Representatives . . 1 7 before the; become laws, shtRl be passed by both Houses, and ap- proved by President ; or, if disap- proved, shall be passed by two-thirds of each House 1 7 not returned in ten days, unless an adjournment intervene, shall be con- sidered as approved- 1 7 Capitation Tax. — See Tax . . ,,...<. .... 1 9 Census, or enumeration, to be made-^eyery ten years . 1 2 Claims of the United States, or of the several States, not to be prejudiced , by. any construction of the Consti- tution 4 3 Citizens of each State, shall be entitled to the privileges and immunities of citizens in the several states 4 2 Coin»(ere«, regulations respecting, to be equal and uniform 1 9 (!mgress, vested with Legiialative power 1 1 Ai-t. SfC Congress, may alter the regulations of State Legislatures concerning elections of Senators and Representatives, ex- cept as to place of choosing Senators 1 4 shall assemble once every year 1 4 may provide for cases of removal of President and Vice-President .... 2 1 may determine the time of choosing electors of President and Vice President 2 1 may invest the appointment of inferior . officers in the President alone, in . the courts of law or the Heads of Departments 2 2 may, from time to time, establish Courts inferior to the Supreme Court 3 I may, (with one limitation,) declare the punishment of treason ........ 3 3 may prescribe the manner of proving tile acts, records, and judicial pro- . ceedings of each State 4 I the assent of, required to the formation of a. new Stat^ within the jurisdic- tion of any other, or by the junction of two or more ........ i .... . .4 i : may propose amendments to Consti- tution, or, on applicationv call a Convention ......... ; 5 1 : the assent of, required to the admis- sion of new States into the Union 4 3 Powers oA— to lay and collect duties on imposts and excises 1 8 xxvi INDEX TO THE CONSTITUTION OF THE UNITED BTAlJiH. CoTigress, powers of— to borrow money 1 8 to regulate commerce 1 8 to establish uniform Jaws of bank- ruptcy and naturalization 1 8 to coin money, regulate the value of coin, and fix the standard of weights and measures 1 8 to punish counterfeiting • . . 1 8 to establish post offices and post roads 1 8 to authorize patents to authors and inventors 1 8 to constitute tribunals inferior to the Supreme Court I 8 to define and punish piracies, felonies on the high seas, and offences against the laws of nations 1 8 to declare war, grant letters of marque, and ;nake rules concerning captures 1 8 to raise and support Armies 1 8 to provide and maintain a Navy .... 1 8 to make rules for the government of the Army and Navy 1 8 to call for the militia in certain cases 1 8 to organize, arm, and discipline militia 1 8 to exercise exclusive legislation over ten miles square 1 8 to pass laws necessary to carry the enumerated powers into effect .... 1 8 to dispose of, and make rules concern- ing the territory or other property of the United States 4 3 Constitution, formed by the people of the United States, Prenmhle, how amended 5 1 and the laws under it, and treaties, declared to be the supreme law . . 6 1 rendered operative by the ratification of the Conventions of nine States 7 1 Cttnvimliom, for proposing amendments to Constitution 5 1 Court, Supreme, its original and appellate jurisdiction 1 2 Courts, inferior to the Supreme Court, may be ordained by Congress 3 1 Crimes, persons accused of, fleeing from justice, may be demanded 4 3 Debts, against the Confederation, to be valid against the United States, under this Constitution 6 1 Duties, on exports prohibited 1 9 on imports and exports, imposed by States, shall enure to the Treasury of-the United States 1 10 Elections, of Senators and Representatives, shall be prescribed by the State Legislatures, as to time, place, and manner 1 4 qualifications and returns of members of Congress, to be determined by each House I 5 Electors of President and Vice-President, ' how chosen, and their duties 3 1 and 12th Amendment shall vote the same day throughout the United States 2 1 no Senator or Representative holding office under the United States, shall serve as 2 1 Enumeration. — See Census. 1 2 Executive Power shall be vested in a Presi- dent a I t i See President, Exports. — See Tax. and imports, duties on by States, to be payable into the Treasury of the United States 1 1" Ex post facto Law, none shall be passed . 1 9 Habeas Corpus, writ of, can only be bus- penned in cases of rebellion or invasion 1 " House of Representatives. — See Represen. tatives. House. — See Senate. Impeachment, all civil officers liable to ... 2 4 persons found guilty by, liable to in- dictment, and punishment for the offence 1 3 Importation of Slaves, until prohibited, a duty authorized on ailer 1808 .... 1 9 Judges shall hold their offices during good behaviour 3 I the compensations of, shall not be di- minished during continuance in office * 3 I Judicial Power, vested in a Supreme Court, and Courts inferior 3 1 the cases to which it extends 3 2 Judicial Proceedings, records and acts of each State, are entitled to faith and credit in every other State 4 1 Jury Trial shall be held in the State where the crime shall have been committed 3 3 if the crime have not been committed within a State, the trial shall be held at the place Congress shall have directed 3 2 Jury, trial by$ secured, in prosecutions fi>r all irimes, except in cases of im- peachment 3 2 and in suits at Common Law where the value in controversy shall ex- ceed. 20 dollars, 7th Amendment. Law, Supreme, the Constitution, the Laws under it, and Treaties declared to be 6 1 Legislative Powers, vested in Congress.— See Congress 1 1 Money shall be drawn from the Treasory, only by laws appropriating 1 9 Nobility, titles of^ shall not be granted by the United States 1 9 Officers of the Senate, except their Presi- dent, shall be chosen by the Senate 1 3 civil, may be removed by impeachment 2 4 Order of one House, requiring the concur- rence of the other. — See Rcsolutimi 1 7 Persons held to labour or service, their im- portation or migration into the Uni- ted States may be prohibited after 1808 X 9 escaping from one State to another,' shall be delivered up to those enti- tled to service 4 2 Powers, not delegated, are reserved to the people, or, when not prohibited, to the States, 10th Amendment Legislative. — See Congress 1 1 Executive. — See President 2 1 Judicial. — See Judicial 3 1 Presents, emoluments, office, or title, from a foreign king, prince, or state, to persons holding offices of profit or trust, prohibited l 9 President of the United States vested with the executive power 2 1 shall be, chosen for four years 2 1 INDEX TO THE CONSTITUTION OF THE UNITED STATES, xxvii Art. Sec. Preiidentofthe Uniled Slatea,hovr electei 3 1 qualifications for : . . . . 3 1 compensation of 3 1 shall take an oath of office. .- 3 1 may be removed by impeachment ... 3 4 President of the lMtte<2 iStaffg, powers of— shall be commander-in-chief of army and navy 3 3 may require the written opinions of the heads of departments 3 2 may reprieve and pardon 2 3 may make treaties, with consent of the Senate 3 3 may appoint to office, with the con- sent of the Senate 2 3 shall fill up vacancies happening dur- ing the recess of the Senate 2 3 President of the United States, duties of— f shall give information to Congress, and recommend measures 3 3 may convene both Houses, or either House 2 3 may adjourn them in case of disagree- ment 3 3 shall receive ambassadors and public ministers 3 3 shall take care that the laws be faith- fully execiited 2 3 shall commission all officers of the United States 2 3 in case of death, &c., shall devolve on the Vice-President and on such other officer as may be provided by law 3 1 Privileges- and immunities of citizens of States. — See Citizens. Property shall not be taken for public use, without just compensation : 5th Amendment. Quorum, what shall be, for business 1 5 of States, in choosing a President by the House of Representatives. .... . 3 1 Receipts and expenditures, accounts of, to be published 1 9 Records. — See Judicial Proceedings 4 1 Representatives, House of, composed of members chosen every second year 1 3 qualifications of the electors of its members 1 2 qualifications of members 1 2 shall not exceed one for 30,000 1 2 shall choose their Speaker and other officers 1 3 shall have the power of impeachment 1 3 shall be the judge of the returns, elec- tions and qualifications of its mem- bers 1 5 what shall be a quorum of. 1 5 any number may adjourn, and compel the attendance of absentees 1 5 may determine the rules of proceeding 1 5 may punish or expel a member 1 5 shall keep a journal, and publish the same, except the parts requiring se- crecy 1 5 shall not adjourn for more than three days, nor to any other places with- out the consent of the Senate 1 5 one-fiflh of present may require the yeas and nays 1 5 shall originate bills for raising revenue 1 7 shall receive a compensation, to be as- certained by law. ._ 1 6 Alt. Sec. Representatives, House of, privileged from arrest during attend- ance, and in going and returning, except in certain cases 1 6 shall not be questioned elsewhere for any speech or debate in the House, 1 G shall not be appointed to the offices created, or whose compensations shall have been increased, during the time for which they are elected 1 6 can, whilst serving, hold no office un- der the United States 1 6 shall not serve as primary electors of President 2 1 Representatives and direct taxes apportion- ed according to numbers ......... 1 3 Representation of a State, vacancies in, supplied until a new election by the Executive authority thereof. ..... . 1 2 Resolution, order, or vote, requiring the concurrence of both Houses, [except for an adjournment,] shall be pre- sented to the President, and under- go the formalities of bills 1 7 Revenue. — See Vessels. Rights of the Citizen declared to be — liberty of conscience in matters of re- ligion. Amendment 1 freedom of speech and of the press. . . 1 to assemble and petition . . . ., 1 to keep and bear arms 3 to be exempt from the quartering of soldiers, in any house, in time of peace, without the consent of the owner ; and in time of war, unless prescribed by law 3 to be secure from unreasonable searches and seizures 4 to be fi-ee, except in the army, navy, and militia, from answering for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury 5 not to be twice jeoparded for the same offence 5 nor to be compelled, in criminal cases, to be a witness against himself. ... 5 not to be deprived of life, liberty, or property, without due course of law 5 private prop'erty shall not be taken for public use without just compensa- tion 5 that the accused, in criminal prosecu- tions, shall enjoy the right of a speedy public trial by an impartial jury of the vicinage; and the means necessary for his defence 6 that, in civil cases, facts tried by a jury shall only be re-examined ac- cording to the rules of the common law • 7 that, in suits at common law, where the value shall e-Tceed twenty dol- lars, the right of trial by jury shall be preserved 7 that excessive bail shall not be requir- ed, excessive fines imposed, nor cruel or unusual punishments in- flicted .•■•.•■•• ^ that the enumeration of certain rights shall not operate constructively against the retained rights 9 xxviii CONSTITUTION OF THE UNITED STATJKS. Art. Sec. Kules, each house shall determine its own 1 5 Senate of the United States, composed of two Senators from each State .... 1 3 how chosen, classed, and terms of ser- vice 1 3 qualifications of members, 30 years of age, 9 years a citizen, and an inhab- itant of the State • 1 3 shall choose their officers, except the President 1 3 shall be the judge of the elections, re- turns, and qualifications of its mem- bers 1 5 what number shall be a quorum . . ■ , I 5 any number may adjourn, and compel attendance of absentees 1 5 may determine its rules 1 5 may punish or expel a member 1 5 shall keep a journal, and publish the same, except parts requiring secre- cy 1 5 shall not adjourn for more than three days, nor to any other place, with- out the consent of the other House 1 5 one-fiflh of present, may require the yeas and nays 1 5 may propose amendments to bills for raising revenue 1 7 shall try impeachments 1 3 their judgments only to extend to re- moval from office, and to disqualify for any other 1 3 members of, shall receive a compensa- tion to be ascertained 'by law 1 6 privileged from arrest 1 6 shall not be questioned elsewhere for any speech or debate in the House 1 6 shall not be appointed to offices of the United States, created, or whose emoluments shall have been increas- ed during the terms for which they were elected 1 6 Senators and Representatives, elections of^ how prescribed J 4 SeTiator shall not be an Elector of Presi- dent 2 1 Slaves. — See Persons held to service. Speaker, how chosen 1 2 States, prohibited from entering into any treaty, alUance or confederation . . 1 10 granting letters of marque 1 10 coining mopey 1 10 emitting bills of credit 1 10 making any thing a tender but gold . and silver coin 1 10 passing bills of attainder, ex post facto laws, or laws impairing, contract ..110 granting titles of nobility 1 10 laying impost, or duties on imports and exports for their own nse .... 1 10 laying duties on tonnage without the consent of Congress 1 10 keeping troops, or ehips of war, in time of peace 1 10 entering into any agreement or con- tract with another State, or a foreign poorer .. ., ,,.,.,,., , 1 10 States prohiJnUd from engaging in war, un- less invaded or in imminent danger 1 10 States, new, may be admitted into the Union yy 4 3 may be formed within the jurisdiction of others, or by the junction of two or more, with the consent bf Con- gress and the Legislatures concerned 4 3 States, Judges of, bound to consider trea- ties, the constitution, and the Jaws under it, as supreme 6 1 States, majority of all, necessary to the phoice of President 2 1 State, each, to be guarantied a republican form of government; protected against invasion ; and secured, upon application against domestic vio- lence 4 4 Supreme Court.— See Court. Tax, capitation or direct, shall be laid only in proportion to census 1 9 Tax, on exports from a State, prohibited . . 1 9 Taxes, direct, shall he apportioned accord- ing to representation 1 2 Territory, or property belonging to United States, Congress may make rules concerning - 4 3 Test, religions, shall not be required .... 7 Titles.— See Nobility 1 9 l^le, from foreign State. — See Present . . 1 9 Treason, defined 3 3 two witnesses, or confession,^ necessary for conviction ■ .^ 3 3 punishment of, may be prescribed by Congress, with one limitation .... 3 3 Treason, or other crime, persons charged with in one State, fleeing into ano- ther,shall, on demand, be delivered up 4 3 Treasury, money drawn from only by ap- propriation 1 9 Treaties, the supreme law 6 1 Vacancies happening during the recess of the Senate, may be filled temporari- ly by the President 2 2 in representation in Congress, how filled 1 2 Vessels to enter, clear, and pay duties in the States, in which they arrive, or firom which they depart 1 9 Vice-President of the United States, to be President of the Senate, except when exercising the office of President of the United States ] 3 how elected 2 1 and 12th amendment qualifications for, 12th amendment shall, in certain cases, discharge the duties of President 2 1 may be removed by impeachment ... 2 4 Vote of one House, requiring concurrence ■ of the other, 1 7 See Resolution. Warrants, for searches and seizures, when and how they shall issue, 4th amend- ment. Witness, in criminal cases, no one compel- led to be against himself, 5th amend- . ment. THE CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA, AS AMENDED BY THE CONVENTION OF ONE THOUSAND EIGHT HUNDRED AND THIRTY-SEVEN-THIRTY-EIGHT. (1) We, the people of the Commonwealth of Pennsylvania, ordain and establish this Constitution for its government. ARTICLfi I. [of the legislature.] Sect. I. The Legislative power of this Conimonwealth shall be vested oftheLesis- in a Greneral Assemblyt which shall consist of a Senate and House of utive power. Representatives. Sect. II. The Representatives shall be chosen annually by the citizens oftheHouse of the city of Philadelphia and of each county respectively, on the second of Represen- Tuesday of October. tatives. Sect. III. No person shall be a Representative vfho shall not have _ ... attained the age of twenty-one -years, and have been a citizen and iuha,bit- ti"ne'of*'the ant of the State three years next preceding his election, and the last year Members of thereof an inhabitant of the district in and for which he shall be chosen the House of a Representative, unless he shall have been absent on the public business Eepresenta- of the United States or of this State. '"*'■ Sect. IV. Within three years after the first meeting of the General qc ,l Assembly^ and within every subsequent term of seven years, an enumera- gus and ratio tion of the taxable inhabitants shall be. made in such manner as shall be of Represen- directed bylaw. The number of Representatives shall, at the several '"t'o"- periods of making' such enumeration, be fixed by the Legislature, and apportioned among the city of Philadelphia and the several counties, ac- ' cording to the number of taxable inhabitants in each : and shall never be less than sixty nor greater than one hundred. Each county shall have at least one Representative, but no county hereafter erected shEtll be entitled to a separate representation until a sufficient number of taxable inhabitants shall be contained within it, to entitle them to one Representative, agreeably to the ratio which shall then be established. Sect. V. The Senators shall be chosen for three years by, the citizens ~. . . of Philadelphia and of the several counties at the same time, in the same jjon of SenI manner, and at the same places where they shall vote for Representatives.(2) ators. Sect. VI. The num^ier of Senators shall, at the several periods of qj, ^i^^ ^.^^j^ making the enumeration before-mentioned, be fixed by the Legislature, and ofRepresen- npportioned among the districts formed as hereinafter directed, according tation in the to the number of taxable inhabitants in each ; and shall never be less than Senate, one-fourth, nor greater than one-third, of the number of Representatives. Sect. VII. The Senators shall be chosen in districts, to be formed by iJfgj* ^^ the Legislature ; hut no district shall be so formed a* to entitle it to elect electing more than twa' Senators, unless the nuTi^er of taxable inhabitants in any Senators. (1) The amendments to the Constitution of 1790, are to be considered as haying been " adopted" sa the 11th of December, 1838. 8 W. 331. (i) Under the Constitution of 1790 the State Senators were " chosen ftr/o»r years." xxix XXX CONSTITUTION OF PENNSYLVANIA. city or county shall, at any time, be such as to entitle it to elect more than two, but no city or county shall be entitled to elect more than four Senators,- when a district shall bef cdhiposed of two or more counties, , they shall be adjoining ; neither the city of Philadelphia nor any county shall be divided in foirining a district. Qualifica- Sect. VIII. No person shall be a Senator who shall not have attained tions of the the age of twenty-five years, and have been a citizen and inhabitant of the Senators. gf^te four years next before his election, and the last year thereof an inhabitant of the district for which he shall be chosen, unless he shall have been absent on the public business of the United States or of this State ; and no person elected as aforesaid shall hold said ojlce after he shall have removed from such district. (3) How the Sect. IX. The Senators who may be elected at the first General Elec- Senators ^jj^^ gj^gj. fjig adoption of thfi amendments to the Constitution, shall be ekiL^ dioided by lot into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the first year ; of the second class at the expiration of the second year ; and of the third class at the expiration of the third year ; so that thereafter one third of the whole number of Senators may be chosen every year. The Senators electi'd before the amendments to the Constitution shall be adopted shall hold their offices during the terms for which they shall respectively have been elected. (4) When the Sect. X. The General Assembly shall meet on the first Tuesday of fc.en. Asaem. jg/nuMry, in every year, unless sooner convened by the Governor. (5)' Of the ffi Sect. XI. Each House shall choose itSiSpeaker and other ofiicers; and cers of each 'he Senate shall also choose a Speaker ^ro tempore, when the Speaker shall House. exercise the office of Governor. Of the pow- Sect. XII. Each House shall judge of the qualifications of its members. crs of each Contested elections shall be determined by a committee to be selected, form- House and ed, and regulated in such manner as shall be directed by law. A majority ot a quorum. ^^ gg^^jj fjoysg gYi&W constitute a quorum to do business ; but a smaller num- her may adjourn from day to day, and may be authorized by law to com- pel the attendance of absent members, in such manner and under such pen- alties as may be provided. Of censure Sect. XIII. Each House may determine the rules of its proceedings, and expul- punish its members for disorderly behaviour, and with the concurrence of sion- two-thirds, expel a member, but not a second time for the same cause ; and shall have all other powers necessary for a branch of the Legislature of a free State. Of the legis- SecI. XIV. The Legislature shall not have power to enact laws annul- l.itive power ling the contract of marriage in any case where, by law, the courts of to annul f/iig Commonwealth are, or hereafter may be, empowered to decree a '"^"'*g«- divorce, re.) Of the jour- SiscT. XV. Each House shall keep a journal of its proceedings, and nals, and publish them weekly, except such parts as may require secrecy : and the Yeas and yeas and nays of the members on any question shall, at the desire of any Nnys. j,yQ qC them, be entered on the journals. Doors to be SECT. XVI. The doors of each House and of Committees of the Whole open. shall be open, unless when the business shall be such as ought to be kept secret. Of adjourn- Sect. XVII. Neither House shall, without the consent of the other, ad- inentfl. journ for more than three days, nor to any other place than that in which the two Houses shall be sitting. (3) The condition of continued residence within the district was not imposed by the old Constitution. (4) A new clasBifioation of the Senate became necessary under the provisions of Sect. 5, Art 1, of the present Constitution : — that Senators shall be chosen " for three years." (5) The General Assembly, under the Constitution of 1790, met " on the first Tuesday in Decern- her" and not, as in this section is provided : — "on the fir?t Tuesday of Jamiary." (6) This J3 a new restraint upon the Legislative power. Th(jre is no such prohibitory clause in the former (Constitution. CONSTITUTION OF PENNSYLVANIA. xxxi Sect. XVIII. The Senators and Representatives shall receive a compen- Compensa. sation for their services to he ascertained by law, and paid out of the trea- tion and pri- sury of the Commonwealth. They shall in all cases, except treason, felony, '"'•sges of and breach or surety 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. Sect. XIX. No Senator or Representative shall, during the time for of the dis- which he shall have been elected, be appointed to any civil office under this qualification Commonwealth which shall have been created, or the emoluments of which °^ "lembws. shall have been increased during such time^ and no member of Congress or other person holditig any office (except of attorney at law and in the militia) under the United States or tnis Commonwealth, shall be a member of either House during his continuance in Congress or in office. Sect. XX. When vacancies happen in either House the Speaker shall Vacancies, issue writs of election to fill such vacancies. Sect. XXI. All bills for raising revenue shall originate in the House of Revenue Representatives, but the Senate may propose amendments as in other bills. '''"^• Sect. XXII. No money shall be drawn from the treasury but in conse- Money in quence of appropriations made by law. the treasury. Sect. XXIII. Every bill which shall have passed both Houses shall be Of bills pre- presented to the Governor. If he approve he shall sign it, but if he shall not sented to tlie approve he shall return it with his objections to the House in which it shall Governor have originated, who shall enter the objections at large upon their journals ^"ith'^hu'ol)- and proceed to reconsider it. If, after such reconsideration, two-thirds of jections. 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 ap- proved by two-thirds of that House, it shall be a law. But in such cases the votes of both Houses shall be determined by yeas and nays, a'lid the names of the persons voting for or against the bill sh&ll be entered on the journals of each House respectively. If any bill shall not be returned by Conse- the Governor within ten days (Sundays excepted) after it shall have been quenoes if presented to him, it shall be a law in like manner as if he had signed it, "°' return- unless the General Assembly, by their adjournment, prevented its return, in which case it shall be a law, unless sent back within three days after their next meeting. Sect. XXIV. Every order, resolution or vote to which the concurrence On orders, of both Houses may be necessary (except on a question of adjournment) resolutions shall be presented to the Governor, and before it shall take effect, be ^"^ ™'®^- approved by him, or. being disapproved, shall be repassed by twb-thirds of both Houses according to the rules and limitations prescribed in case of a bill. Sect. XXV. No corporate body shall be hereafter created, renewed Limitations or extended with banking or discounting privileges, without six months' on the privi. pretnous public notice rf the application for the same in such manner leges and as shall be prescribed by law. Nor shall any charter for the purposes °"''*"™ o' aforesaid, be granted for a longer period than twenty years, and every todies. such charter shall contain a clause reserving to the Legislature the- power to alter, revoke or annul the same, whenever in their opinion it may be injurious to the citizens of the Commonwealth, in such manner, however, that no iryustice shall be done to the corporators. No law hereafter ' enacted, shall create, renew or extend the charter of more than one corporation. (7) ARTICLE II. [or THE GOVERNOR.] Sect. I. The Supreme Executive power of this Commonwealth shall be power vest- vested in a Governor. ed. (7) This whole section is a new provision ; there being none of like import in the Constitutioa of 179(1 xxxii CONSTITUTION OF PENNSYLVANIA. Of the elec- Sbct. II. The Governor sh^U be chosen on the second Tuesday of tion for Go- October, by the citizens of the Commonwealth, at the places where. tney veruor. gjjj^n respectively vote for Representatives. . The returns of every election for Governor shall be sealed up and transmitted to the seat of government, directed to the Speaker of the Senate, who shall open and publish them in the presence of the members of both Houses of the Legislature. 1 he person having the highest numbeu of votes shall be Governor. - But if two or more shall 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 Legislature, and formed and regulated in such manner as shall be directed by law. How lone ^^^"^^ Il'f- The Governor shall hold his office during three years from he may the third Tuesday of January next ensuing his election, and shall not be serve. cajpable of holding it longerthan six in any term of nine years. Of his quali- Sect. IV. He shall be at least thirty years of age, and have been a fications. citizen and an inhabitant of this State seven years next before his election ; unless he shall have been absent on the public business of the United States, or of this State. VVhoaredis- Sect. V. No member of Congress or person holding any office under qualified. the United States or this State, shall exercise the office of Governor. Of his com- Sect. VI. The Governor shall at stated times receive for his services pensation. a compensation, which shall be neither increased nor diminished during the period for which he shall have been elected. He shall be ' Sbot, VII. He shall be ooHimander-in-chief of the army and navy of commander- this Commonwealth, and of the militia, except when they shall be called ■ in-ohief. into the actual service of the United States. His power Sect. VIII. He shall appoint a Secretary of the Commonwealth during to appoint pleasure, and he shall nominaie^ and by and with the advice and con- he shall no- sent of the Senate, appoint all judicial officers of Courts rf Record, unless "•"?°^*ffi ^"'''' <'*^6"''**^ provided for in this Constitution. .He shall have power to to the Se*" .fi^^ "'' vacancies that may happen in such judicial offices during the nate, who recess of the Senate, by granting commissions which shall expire at confirm or the end of their next session : Provided, That in acting on executive reject with nominations the Senate shall sit with open doors, and in confirming or o))en doors, ffjgcting the nominations of the Governor, the vote shall be taken by yeas and nays. (8) Power to Sect. IX. He shall have power to remit fines and forfeitures, and grant pardon, &c. reprieves and pardons, except va cases of impeachment. (9) May require Sect. X. He rnay require information in writing, from the officers in the information, executive department, on any subject relating to the duties of their respec- tive offices. Shall give Sect. XI. He shall, from time to time, give to the General Assembly '"*?J™^"»^ information of the state of the Commonwealth, and recommend to their ral Assem! ' consideration such measures as he shall judge expedient. May con- Sect. XII. He may, on extraordinary occasions, convene the General vene and ad- Assembly ; and in case of disagreement between the two Houses, with journ the respect to the time of adjournment, adjourn them to s«ch time as he shall Gen. Assem. tj,i„]j proper, not exceeding four months. «me"theTaws ^^^''- ^^^^- ^® ^^^" '"^® '^^^ """ '^® ^^"^^ ^ faithfully executed. (S) By the Constitution of 1790, the Governor was " to appoint and commission a Secretary," (luring the Governor's continuance in office, if he, the Secretary, should " so long behave himself well." By the above section, the appointment of Secretary is made " during pleasure of the Gover- nor." By the former Constitution, the Governor was authorized and required to "appoint all •fficers," whose offices were established by that Constitution, or by law. The provisions of this section give to the Governor only the power to " nominate, and by, and with the advice and consent of the Senate, appoint all Judicial Officers of Courts of Record, unless otherwise provided for in this Constitution." (9) The ^es and penalties which he may remit, are such only as are now, or were originallT payable to the State. 3 Ban, 12& He may grant a conditional pardon. 8 W. ^ S. 197. CONSTITUTION OF PENNSYLVANIA. xxxiii Sect. XIV. In case of the death or resignation of the Governor, or of his Conse- removal from office, the Speaker of the Senate shall exercise the office of q^ences of Governor, until another Governor shall be du|y qualified : but in such case '"?.'^*^J!'' another Gcmemor shall be chosen at the next annual election of Repre- or"non.el^ sentatives, unless such death, resignation, or removal shall occur vrithin tion. three calendar months immediately preceding such next annual election, in which case a Governor shall be chosen at the second succeeding an- nual election of Representatives. (10) And if the trial of a contested elec- tion shall continue longer than until the third Monday of January next ensuing the election of Governor, the Governor of the last year, or the Speaker of the Senate who may be in the exercise of the executive autho- rity, shall continue therein until the determination of such contested elec- tion, and until a Governor shall be duly qualified as aforesaid. (11) [of the SECRETAB7 OP THE COMMONWEALTH.] Sect. XV. The Secretary of the Commonwealth shall keep a fair regis- Of the Se. ter of all the official acts and proceedings of the Governor, and shall, when cretary and required, lay the same and all papers, minutes, and vouchers relative there- ^^ duties, to, before either branch of the Legislature, and shall perform such other duties as shall be enjoined him by law. ARTICLE III. [of elections.] Sect. I. In elections by the citizens, every white freeman of the age Who may (f twenty-one years, having resided in this State one year, and in the enjoy the election district where he offers to vote, ten days immediately preceding ".S^^ °' "^ such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector. But a citizen of the United States, who had previously been a qualified voter of this State, and removed therefrom and returned, and who shall have resided in the election district, and paid taxes as aforesaid, shall be entitled to vote after residing in the State six months : Provided, That white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having redded in the State one year, and in the election district ten days as aforesaid, shall be entitled to vote, although they shall not have paid taxes. (12) Shall vote Sect. II. All elections shall' be by ballot, except those by persons in by ballot; their representative capacitieSj who shall vote viva voce. Privileges , Sect. HI. Electors shall in all cases, except treason, felony, and breach ^°l'^f„^^ ^ or surety of the peace, be privileged from arrest during their attendance on fmn, eigc. elections, and in going to and returning from them. lions. (10) The time at which " another Governor shall be chosen," in case of the " death, resignation, or removal," of the Governor from office, is, here, distinctly set forth. (11) " The third Monday of January^ is here substituted for " the third Tuesday in December ;" ' these being the days, respectively, under the Constitutions of 1838 and 1790, on which the Governor entered upon the discharge'of the duties of his office. (12) This section is essentially different from the section on the same subject in the Constitution of 1790. The first, important difference, is, the introduction of the Vcord " White" before the word " Freeman." The residence " in the State," formerly required, was " two years next before the elec- tion;" now, but " one year's" residence is required. The old Constitution required, as a qualifica- tion for a voter, that the person, applying to exercise " the rights of an elector," should, " within two years next before the election, have paid a State, or County tax," which should " have been assessed, at least, six months before the election at which he made application to vole." The requirements, . IQ these particulars, of the present Constitution, are, that the elector " shall have paid, within two years, a State, or Couqty tax, which shall have been assessed, at least, ten dtiys before the_ election, at which he applies to exercise the right of suffrage." A provision is here made, which did not ex- - ist in the Constitution of 1790, in gelation to " a qualified voter of this State," who had « removed therefrom and returned," and paid the tax required, that he "shall be entitled to vote afler residing- in. the State six months." The provision to entitle "white Freemen," who " shall not have paid taxes," but who are " between SI and 22 years" of age, to vote, is here laid down with a clearness which will hardly admit of Cavil or dispute. C xxxiv CONSTITUTION OF PENNSYLVANIA. ARTICLE IV. [of impeachments.] H.Rep: may Sect. I, The House of representatives shall have the sole power of im- impeach. peaching. _,, The Senate Sect. II. All impeachments shall be tried by the Senate; When sitting ►hall try im- for that purpose, the Senators shall be upon oath or affirmation. I\o per- pfeachinents. go„ gi^gH j,e convicted, without the concurrence of two-thirds of the mem- bers present. AVho may Sect. III. The Governor and all other civil officers under this Common- he impeach- wealth, shall be liable to impeachment for any misdemeanour in office ; but «d, and the judgment, in such cases, shall not extend further than to removal from ■ (18) The trial, conviction, and sentence of one who holds the olHce of Sheriff, of the offence of bribing a voter previously to his election to the office, is not such a " conviction of misbehaviour in office, or of any infamous crime," as will disqualify him from exercising the duties of his office, under this section. 3 W. if S. 338. (19) There was no such provision as this in the CoiiMitution of 1790, but the principle was em bodied in our laws. It is more than thirty years sinee a duel has been fought in Pennsylvania. * (80) The diiiercnce between the " taking' private ■ property, for public use," in this Constitution, and in that which preceded it, is — ^that the present section makes it imperative on "the corpora xzxnu CONSTITUTION OF PENNSYLVANIA. Oaths of office. TherighU of men, in- iierent and indefeasible. Of the right of the people to change their go- vernment. The sacred rights of conscience, declared and protect- ed. Of religious disqualifica- tions to hold office. Elections. Trial by jury. Of the free- dom and re- sponsibility o'' printing- presses. Ri^lits of juries in li- bel cases. Unreasona- ble searches and seizures prohibited. ARTICLE VIII. ' [of the oath of office.] Members of the General Assembly and all officers, executive and judi- cial, shall be bound by oath or affirmation to support the Constitution ot this Commonwealth, and to perform the duties of their respective offices with fidelity. [3 Cow. 703.] ARTICLE IX. [the declaration op bights,] (21) That the general, great and essential principles of liberty and free go- vernment may be recognized and unalterably established, WE DE- CLARE, That , ^ Sect. I. All men are born equally free and independent, and havfi certain inherent and indefeasible rights, among which are those of enjoy- ing and defending life and liberty, of acquiring, possessing and pro- tecting property and reputation, and of pursuing their own happiness. [4 Dull. 258. 260.] Sect. II. AH power is inherent in the people, and all free govern- ments are founded on their authority, and instituted for their peace, safety, and happiness : For the advancement of these ends, they have, at all times, an unalienable and indefeasible right to alter, reform, or abolish their go- vernment, in such manner as they may think proper. Sect. III. 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, control or interfere with the rights of conscience; and no preference shall ever be given, by law, to any religious establishments or modes of worship. [17 S. y oatb or affirmation. [6 Binn. 316. 3 Cranch, 453, 548.] Sect. IX. In all criminal prosecutions, the accused hath a right to Of the rights be heard by himself and his counsel, to demand the nature and cause of oftheac- the accusation against him, to. meet the witnesses face to face, to have com- ^":^^. '? * , ''.,.:. ... - , . . criminal pulsory process tor obtaming witnesses m his lavourj and, in prosecutions prosecutions. by indictment or information, a speedy public trial by an impartial jury . of the vicinage : he cannot be compelled to give evidence against him- self, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. Sect. X. No person shall, for any ^ndictable offence, be proceeded Informa- agaiast criminally by information ; except in cases arising in the land or '".""^ prohu naval forces, or in the militia when in actual service in time of war or j^ peftahT'* public danger; or by leave of the court for oppression and misdemeanour cases. in office. No person shall for the same offence be twice put in jeopardy of life or limb ; nor shall any man's property be taken, or applied to public use, without the consent of his representatives, and without just com- pensation being made. [3 Yeates, 362. 6 Binn. 509. 20 Johns. 735. 2 Dall. 312. 1 S. ^R. 514. 2 Raw. 448.] Sect. XI. All courts shall be op^n, and every man for an injury Of the courts done him in his lands, goods, person or reputation, shall have remedy by of justice, the due course of law, and right and justice administered without sale, de- jommon- nial or delay. Suits may be brought against the Commonwealth in such wealth mar manner, in such courts, and in such cases, as the Legislature may, by be sued, law, direct. Sect. XII. No power of suspending laws shall be exercised, unless Of suspend- by the Legislature, or its authority. ™S 'awe. Sect. XIII. Excessive bail shall not be required, nor excessive fines of bail, &c. imposed, nor cruel punishments infficted. Sect. XIV. All prisoners shall be bailable by sufficient sureties, Uiiless Of bailing for capital ofiences, when the proof is evident or presumption great : prisoners, and the privilege of the writ of habeas corpus shall not be suspended, ?" fu^''*" ' unless when, in cases of rebellion or invasion,: the public safety may re- h^eas quire it. corpus. Sect. XV. No commission of oyer and terminer or jail delivery shall Oyer and be issued. ^ terminer. Sect. XVI. The person of a debtor, where there is not strong pre- Of insolvent sumption of fraud, shall not be continued in prison after delivering up his debtors, estate for the benefit of his creditors in such manner as shall be prescribed by law. Sect. XVII. No ex post facto law, nor any law impairing contracts, Expost facto shall be made. [3 Dall. 386. 396. 6 Binn. 271. 4 Wheat. 122. laws. 309. 518. 5 Wheat. 420. 6 Wheat. 131. 8 Wheat. 256, n. 12 Wheat. 213. 16 Johns. 233.] Sect. XVIII. No person shall be attainted of treason or felony by 9^ legisla- the Legislature. '^^^^ Sect. XIX. No attainder shall work corruption of blood ; nor, except of forfeiture during the life of the offender, forfeiture of estate to the Commonwealth ; of estate, and the estates of such persons as shall destroy their own lives, shall de- ""'"P*™" scend or vest as in case of natural death ; and if any person shall be killed °* °'°°°' by casualty, there shall be no forfeiture by reason thereof. Sect. XX. The citizens have a right, in a peaceable manner, to assem- The right to ble together for their common good, and to apply to those invested assemble, ■ with the powers of government for redress of grievances, or other proper *""■ purposes, by petition, redress, or remonstrance. Sect. XXI. The right of citizens to bear arms, in defence of them- To bear selve's and the State, shall not be questioned. """■ Sect. XXII. No standing army shall, in time of peace, be kept up, Of the milj- without the consent of the Legislature ; and the military shall, in all cases, tary, &c. and at all times, be in strict subordination to the civil power. Qtiartering troops, &.C. Titles and offices. Emigration, This decla- ration ex- cepted, &c. Of amend- ments to this Con- tistution. CONSTITUTION OF PENNSYLVANIA. Sect. XXIII. 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. ... Sect. XXIV. The Legislature shall not grant any title of nobility or hereditary distinction, nor create any office the appointment to which shall be for a longer term than during good behaviour. LI f!"""*' ''*^-J Sect. XXV. Emigration from the State shall not be prohibited. Sect. XXVI. To guard against transgressions of the high powers which we have delegated, WE DECLARE, that every thing in this article is excepted out of the general powers of government, and shall lor ever remain inviolate. * ARTICLE X. [op amendments to this constitution.] Any amendment or amendments to this Constitution may be pro- posed in the Senate or House of Representatives, and if the same shall ■be agreed to by a majority of tlie members elected to each House, such proposed amendment or amendments shall be entered on their Journals, with the yeas and nays taken thereon, and the Secretary of the Com- monwealth shall cause the same to be published three months before the next election, in at least one newspaper in every county in which a newspaper shall be published ; and if in the Legislature next 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 he published in manner aforesaid, and such proposed amendment or amendments shall be sub- mitted to the people, in such manner and at such time, at least three months after being so agreed to by the two Houses, as the Legislature shall prescribe ; and if the people shall approve and ratify such amend- ment or amendments by a majority of the qualified voters of this State voting thereon, such amendment or amendments shall become a part of the Constitution, but no amendment or amendments shall be submitted to the people ofiener than once in five years : Provided, that if more than one amendment be submitted, they shall be submitted in such manner and form, that the people may vote for or against each amendment separately and distinctly. (22) Of former laws, con- tracts, &c. This Consti. tution to take effect. Hovr to be construed. SCHEDULE. ' That no inconvenience may arise from the alterations and amendments in the Constitution of this Commonwealth, and in order to carry the same into complete operation, it is hereby declared and ordained, that Sect. I. All laws of this Commonwealth in force at the time when the said alterations and amendments in the said Constitution shall take effect, and not inconsistent therewith, and all rights, actions, prosecutions, claims, and contracts, as well of individuals as of bodies corporate, shall continue as if the said alterations and amendments had not been made. Sect. II. The alterations and amendments in the said Constitution shall take effect from the first day of January, eighteen hundred and thirty-nine. Sect. III. The clauses, sections, and articles of the said Constitution which remain unaltered, shall continue to be construed and have effect as if the said Constitution had not been amended. (22) This article, providing for the manner of proposing amendments to this Constitution ; the manner in which they shall be submitted to the consideration of the people ; and the manner in Which such amendments shall be rejected, or approved and ratified, so as to " become a part of the Constitution," is wholly new. The old Constitution had no provision for amendments. It was " ratified, in Convention, on the second day of September, 1790." The present Constitution took effect from the first day of January, 18.39. CONSTITUTION OF PENNSYLVANIA, xli Sect. IV. The General Assembly which shall convene in December, eighteen General hundred and thirty-eight, shall continue its session, as heretofore, notwithstand- Assembly of ing the provision in the eleventh section of the first article, and shall at all 1838-39. times be regarded as the first General Assembly under the amended Constitution. Sect. V. The Governor who shall be elected in October, eighteen hundred and Of the Go- thirty-eight, shall be inaugurated on the third Tuesday in January, eighteen vernor elect- hundred and thirly-nine ; to which time the present executive term is hereby ed in 1838, extended. ^c. Sect. VI. The commissions of the judges of the supreme court who may be in When, and office on the first day of January next, Shall exjiire in the following manner : — how, the The commission which bears the earliest date, shall expire on the first day of commissions January, Anno Domini one thousand eight hundred and forty-two : the com- of the judges mission next dated shall expire on the first day of January, Anno Domini one of the thousand eight hundred and forty-five: the commission next dated shall supreme expire on the first day of January, Anno Domini one thousand eight hundred ""T' ^''^' and forty-eight : the commission next dated sh^U ext)ire on the fipsj; day of ?^P"^- January, Anno Domini one thousand eight hundred and fifty-one: and the' commission last dated shall expire on the first day of January, Anno Domini ' one thousand eight hundred and fifty-four. Sect. VII. Thecommissionsof the president judgesof the several judicial dis- When, and triets, and of the associate law judges of the first judicial district, shall expire as how, the follows : — pThe commissions of one-half of those who shall have held their commissions offices ten years or more, at the adoption of the amendments to the Constitution, of the law shall expire on the twenty-seventh day of February, one thousand eight hundred judges shall and thirty-nine : the commissions of the other half of those who shall have expire. held their offices ten years or more, at the adoption of the amendments to the Constitution,' shall expire on the twentyrseventh day of February one thousand eight hundred and forty-two : the first half to eml)race those whose commissions shall bear the oldest date. The commissions of all the remainin'g judges who shall not have held their offices for ten years at the adoption of the amendments to the Constitution, shall expire on the twenty-sevenith day of February next after the end of ten years from the date of their commissions. [8 W. 331.] Sect. VIII. The recorders of the several mayors' courts, and other criminal When, and courts in this Commonwealth, shall be appointed for the same time and in the liow, the same manner as the president judges of the several judicial districts : of thdse now commissions in office, the commission oldest in date shall expire on the twenty-seventh day ofrecorder's of February, one thousand eight hundred and forty-one, and the others every of mayor's two years thereafter according to their respective dates : those oldest in date courts shall expiring first. , expire. Sect. IX. The Legislature, at its first session under the amended Constitution, of the asso- shall divide the other associate judges of the State into four classes. The ciate judges commissions of those of the first class shall expire on the twenty-seventh day — to be of February, eighteen hundred and forty: of those of the second class on the divided into twenty-seventh day of February, eighteen hundred and forty-one : of those- of classes, and the third class on the twenty-seventh day of February, eighteen hundred go out of and forty-two : and of' those of the fourth class on the twenty-seventh day of o^ce as February, eighteen hundred and forty-three. The said classes, from the first to arranged, the fourth, shall be ananged according to the seniority of the commissions of the several judges. - p H Sect. X. Prothonotaries, clerks of the severalcourts, (except of the supreme tXies°&c. court,) recorders of deeds and registers of wills, shall be first elected under the ^(,en' and amended Constitution, at the election of Representatives in the yeareigiiteen jjg'„ („ y^ hundred and' thirty-nine, in such manner as may be prescribed by law. elected. Sect. XI. The appointing power shall remain as heretofore, and all officers in of the ap. the appointment of the executive department shall continue in the exercise of the pointing duty of their respective offices until the Legislature shall pass such laws as power and may be required by the eighth section of the sixth article of the amended Con- existing stitution, and until appointments shall be made under such laws; unless their commis. commissions shall be superseded by new appointments, or shall sooner expire sions. by their own 'limitations,' or the said offices-shall become vacant by death or resignation, and such laws shall be enacted by the first Le^slature! under the amended Constitution. - Sect. XII. The first election for aldermen and justices of the peace shall be of the elec- held in the year eighteen hundred and forty, at the. time fixed for the election of tionofaldeiv constables. The Legislature, at its first session under the amended Constitution, men and shall provide for the said election, and for subsequent similar elections. The justices of aldermen and justices of the peace now in commission, or who may in the in- the peace, terim be appointed, shall continue to discharge the duties of their repective xlii CONSTITUTION OF PENNSYLVANIA. Of those now offices until fifteen days after the day wliich shall be fixed by law for the issuing in com- of new commissions, at the expiration of which time their commissions shall mission, expire. In testimony that the foregoing is the amended Constitution of Pennsylvania, as agreed to in Convention, We, the Officers and Members of the Convention, have hereunto signed our names, at Philadelphia, the twenty-second day of February, Anno Domini one thousand eight hundred and thirty-eight, and of the Independence of the United States of America the sixty-second. JOHN SERGEANT, Presideut. Daniel Agnew, Wm. Ayres, M. W. Baldwin, Ephraim Banks, John Y. Barclay, Jacob Barndollar, Chas. A. Barnitz, Andrew Bedford, Thos. S. Bell, James Cornell Biddle, Lebbeus L. Bigelow, Saml. C. Bonham, Chas. Brown, Jeremiah Brown, William Brown, Pierce Butler, Samuel Carey, John Cummin, Thomas S. Cunningham, William Curll, Wm. Darlington, George Chambers, John Chandler, Jos. R. Chandler, Ch. Chauncey, Nathaniel Clapp, James Clarke, John Clarke, William Clark, Samuel Cleavenger, A. J. Cline, Lindley Coates, R. E. Cochran, Thos. P. Cope, Joshua F. Cox, Walter Craig, Richd. M. Grain, Geo. T. Crawford, Cornelius Crum, Mark Darrah, Harmar Denny, John Dickey, Joshua Dickerson, Jacob Dillinger, J. Donagan, J. R. Donnell, Joseph M. Doran, James Dunlop, Thomas Earle, p. M. Farrelly, Roht. Fleming, Walter Forward, John Foulkrod, Joseph Fry, Jr. John Fuller, John A. Gamble, William Gearhart, David Gilmore, Virgil Grenell, William L. Harris, Thomas Hastings, Ezra S. Hayhurst, Wm. Hays, Abm. HelfFenstein, M. Henderson, Wm. Henderson, Wm. Hiester, William High, Jos. Hopkinson, John Houpt, Jabez Hy,de, Charles Jared Ingersoll, Phs. Jenks, George M. Keim, James Kennedy, Aaron Kerr, Jos. Konigmacher, Jacob Krebs, H. G. Long, David Lyons, Alex. Magee, Joel K. Mann, Benjn. Martin, John J. M'Cahen, E. T. M'Dowell, James M'Sherty, W. M. Meredith, James Merrill, Levi Merkel, Wm. L. Miller, James Montgomery, Christian Meyers, D. Nevin, Wm. Overfield, Hiram Payne, Matthias Pennypacker, James Pollock, James Porter, James Madison Porter, Saml. A. Purviancei E. C. Reigart, A. H. Read, Geo. W. Riter, Jno. Ritter, H. Gold Rogers, Samuel Royer, James M. Russell, Daniel Saeger, John Morin Scott, Tobias Sellers, G. Seltzer, Geo. Serrill, Henry Scheetz, George Shilleto, Thomas H. SUl, G«o. Smith, Wm. Smyth, Joseph Snively, Jno. B. Sterigere, Jacob Stickel, Ebenezer W. Sfurdevant, Thomas Taggart, Morgan J. Thomas, James Todd, Thomas Weaver, Jacob B. Weidman, R. G. White, Geo. W. Woodward, R. Young. (Attest,) S. Shoch, Secretary. G. L. Fa CSS, J. WlLMAMS, Assistant Secretaries. CONSTITUTION OF PENNSYLVANIA. xliU Secretaru'a Office. PENNSYLVANIA, ss. * I certify, that the annexed is nn exact and literal copy of " the Constitution of the Commonwealth of Pennsylvania, as amended by the Convention of one thousand eight hundred and thirty-seven-thirty-eight," deposited in this oiEce on the 26th day of February, 1838 ; the atnendmenta being in italic, and the retained portion of the old Constitution in roman letter. In testimony whereof, I have hereunto set my hand, and caused the seal of the [SEAL.] said office to be affixed, at Harrisburg, this eighth day of October, Anno Domini one thousand eight hundred and thirty-nine. FR. R. SHUNK, Sec'y Cam. AMENDMENT. [The following Amendment to the Constitution having been agreed to by a majorily of the members elected to each house of the Legislature at the sessions of 1849 and 1850, was ratified by a majority of thequalified voters of the State, at the general election held on the second Tuesday of October, 1850, and thereby became a part of the Constitution, in accordance with the provisions of the tenth Article.] ARTICLE I. The Judges of the Supreme Court, of the several Courts of Common Pleas, and of such other Courts of Record as are or shall be established by law, shall be elected by the qualified electors of the Commonwealth, in the manner following, to wit : The Judges of the Supreme Court, by the qualified electors of the Commonwealth at large ; the President Judges of the several Courts of Common Pleas, and of such other Courts of Record as are or shall be established by law, and all other Judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside or act as Judges ; and the Associate Judges of the Courts of Common Pleas, by the qualified electors of the counties respectively. The Judges of the Supreme Court shall hold their offices for the term of fifteen years, if they shall so long behave themselves well, (subject to the allotment herein- after provided for, subsequent to the first election ;) the President Judges of the seve- ral Courts of Common Pleas, and of such other Courts of Record as are or shall be established by law, and all other Judges required to be learned in the law, shall hold their offices for the term of ten years, if they shall so long behave themselves well ; the Associate Judges of the Courts of Common Pleasshall hold their offices for the term of five years, if they shall so long behave themselves wellj all of whom shall be commissioned by the Governor, but for any reasonable cause, which shall not be sufficient grounds of impeachment, the Governor shall remove any of them, on the address of two-thirds of each branch of the Legislature. The first election shall take place at the general election of this Commonwealth, next after the adoption of this amendment, and the commissions of all the Judges who may be then in office shall expire on the first Monday of December following, when the terms of the new Judges shall commence. The persons who shall then be elected Judges of the Supreme Court, shall hold their offices as follows : One of them for three yeafs, one for six years, one for nine years, one for twelve years, and one for fifteen years, the term of each to be decided by lot by the said Judges, as soon after the election as convenient, and the result certified by them to the Governor, that the commissions may be issued in accordance thereto. The' Judge whose commission shall first expire, shall be Chief Justice during his term, and there- after each Judge whose commission shall first expire, shall in turn he the Chief Jus- tice, and if two or more commissions shall expire on the same day, th<| Judges holding them shall decide by lot which shall be Chief Justice. Any vacancies hap- pening by death, resignation or otherwise, in any of the said Courts, shall be filled by appointment, by the Governor, to continue till the first Monday of December succeed- ing the next general election. xliv CONSTITUTION OF PENNSyiiVAJNiA. The Judges of the Supreme Court and the President Judges of the several Courts of Common Pleas shall, at stated times, receive for their services an adequate com- pensation, to be fixed by law, which shall not be diminished durmg their contmuance in office ; but they shall receive no fees or perquisites of office, nor hold any other office of profit under this Commonwealth, or under the government of the United States, or any other State of this Union. The Judges of the Supreme Court during their continuance in office, shall reside within this Commonwealth; and the other Judges, during their continuance in office, shall reside within the district or county for which they were respectively elected. INDEX TO THE CONSTITUTION OF PENNSYLVANIA. Alt. Sec Aldermen. — See Justices of the Peac^. All Courts shall be open, and every person shall have remedy by dae coarse of law, for any wrong done him, and right and justice shallbe adminis- tered, without sale, denial, or delay 9 11 All power is inherent in the people: on whose authority and for whose bene- fit all free governments are estab- lished, and they have a right to alter, reform or abolish them as they may think proper 9 3 AmendmerUa, to this constitution, shall be submitted to the people, after having been first agreed to by a majority of the members elected to each House at two different and immediately succeeding sessions of the General Assembly, whose votes shall have been taken by yeas and nays, and recorded on their journals, and pub- lished by the Secretary of the Com- monwealth in such manner and at such time as the Legislature shall prescribe, and if approved by a ma- jority of the qualified voters of this state, voting thereon, such amend- ment, or amendments, shall become a part of the constitution. No amend- ment shall be submitted oftener than once in five years, and every amend- ment shall be so submitted that the people may vote for or against each amendment separately and distinctly 10 1 Arts and Sciences, shall be promoted in se- minaries of learning .7 2 Associate Judges See Judges. Attainted, — See No Person. Bail. — See Excessive' Bail. Bills, for raising revenue, shall originate in the House of Representatives, but the Senate may propose amendments 1 31 before they become Laws, shall be passed by both Houses and approved by the Governor, or if disapproved they shall become laws if passed by two-thirds of each House 1 23 AUSkl Bills, if not returned within ten days (Sun- days excepted) after having been presented to the Governor, unless an adjournment shall prevent its return, it shall be considered as approved and become a law, unless sent back within three days after their next meeting '. 1 23 Banking or Discmmling privileges. — See Charters. Census, a, or enumeration of taxable inha- bitants, shall be made every seven years, in such manner as shall be directed by law 1 4 Challenging. — See Fighting. Charters, granting banking or discounting privileges, shall not be granted, with- out six months notice, nor for more than twenty years, and shall reserve to the Legislature the power to alter, revoke, or annul them. No law shall create, renew, or revoke more than one corporation 1 35 Citizen^s Rights. — See Eeery Citizen, ond Petition or Remonstrance. Commissions, shall all be in the name and by the authority of the common- wealth, and be sealed with the state seal, and signed by the Governor. . . 6 5 Vommonwealth, the, may be sued as the Legislature may, by law, direct. ... 9 11 Counties, not more than five, shall be included in one judicial district organized for Courts of Common Plea 5 3 County Offices, prothonotaries', Eegisters', &c. Slc shall be kept in the county town, unless the Governor shall, for special reasons, dispense therewith, &c 6 4 Vontracts.-r-Sea No Law. Courts of Common Pleas, to continue as at present established, until otherwise directed by law 5 3 the judges of these courts shall be the judges of the Quarter Sessions, Or- phan's Court, &c. in each countv. . B 7 INDEX TO THE CONSTITUTION OF PENNSYLVANIA. xlv Courts of Common Pleas — the judges of- theqe Courts may issue writs of certiorari to the justices of the peace, &c ..;... 5 8 the Presidents of the, within their dv-, cuits shall be Justices of the Peace so far as relates to criminal mat- ters 5 9 See Counties. Criminal Informations, prohibited, except in time of war, or public danger, or by leave of ne Court for oppression and misdemeanour in office ...... 9 10 Criminal Prosecutions, in. all, the accused has a right to be heard — to know the accusations against him — to meet the witnesses face to face — to have compulsory process, a speedy, trial, and an impartial jury of the vicinage — he cannot be compelled to give evidence against himself,. nor be de- prived of life, liberty, or property unless by the law of the land ...... 9 9 Debtor, a, shall not be continued in prison, unless on strong presumption of £raud, after delivering up his estate 9 16 Dtmtrces, the power of the Legidature to grant, restrained 1 14 Elections, contested, to the General Assem- . bly, how to be. determined, ...... . 1 12 if av fi>t Governor, shall continue long- er than until -lite third Monday of January next ensuing the election of .Governor, the Governor of the last . year, o; the, person exercising the Executive authority, shall continue, to act as Governor until a Governor shall be duly qualified 2 14 Elections, shall be free and equal 9 5 shall all be by ballot, except by persons in .a representative capacity 3 2 Electors, privileged &om arrest during their attendance on elections, and in going to and returning from 3 3 Emigrittion, from the State, shall not be prohibited i 9 25 Every Citizen, may freely speak, write, and print on any subject, being respon- sible for the exercise of that right. . 9 7 Every Thing, in the Declaration of Rights, excepted out of the 'general pciwers of Government, shall for ever remain inviolate 9 26 Excessive Bail, excessive fines and cruel punishments prohibited 9 13 Executive Power, the Supreme, vested in a Governor 2 1 Fighting, or challenging, to fight, a duel, shall disqualify the persons so offend- ing from holding any office, and they shall be further punished as may be prescribed by law — the Governot may remit all disqualifications .... 610 Faifeiture of Estate, shall not follow attain- der, suicide, or death by casualty. . . 9 19 General Assembly, the, shall meet, on the first Monday in January 1 10 each House shall choose its Speaker and other officers >. 1 11 each House shall judge of the qualifi- cations of its members — a majority «f each House shall constitute a quo- General Assembly — rum, but a smaller number may ad- journ from day to day 1 13 each House may frame its own rules and punish or expel a member, and shall have all other powers necessary 1 13 each House shall keep a journal, and publish it, the yeas and nays shall be entered on the journal ........ 1 15 the doors of each House shall be open unless otiierwi^e directed to keep the proceedings secret .. 1 16 neither House sriall adjourn for more than three days, or to any other place, without consent of the other House 1 17 no member of Congress shall be a mem- ber of either House of the 1 19 the Speaker to issue his writ if a va- cancy shall happen in either House, for a new election 1 20 when a bill is sent back to the House in which it originated, by the Go- vernor, with his objections, if it shall be passed by two-thirds of that House, it shall be sent, with the objections, , to the other House, where if passed by two-thirds it shall become a law 1 33 no member of either House shall be appointed by the Governor to any office during the time for which he shall have been elected 6 8 see Officers, all. Governor, the, shall be the Supreme Execu- tive power 2 1 when he shall be chosen, the returns of the election to be sealed up and transferred to the seat of Govern- ment, directed to the Speaker of the Senate, by whom they shall be opened and published ; — if the elec- tion shall be contested how it shall be determined ...2 2 shall be elected for three years and de- clared incapable of serving longer than six, in any term of nine years 2 3 qualifications required for 2 4 no member of Congress shall be 2 5 compensation for his services shall not be increased or diminished during the period for which he shall have been elected • 2 6 shall be, commander-in-chief, &c. .... 2 7 appointments vested in the 2 8 he may remit fines and. forfeitures, and grant reprieves and pardons , . ■ 2 9 he may require written, information from the .officers in. the Executive department 2 10 he shall give information and recom- mend measures to the General As- sembly 2 11 he may convene the General Assembly, and in case of disagreement, as to the time, between the two houses, he may adjourn them, but not ex- ceeding four months 2 12 he shall take care that the laws be faithfully executed 2 13 in case of the death of, who shall ex- ercise the office of Governor until another Governor shall be duly elected 2 14 xlyi INDEX TO THE CONSTITUTION OF PENjNSj:l,vaxnia. Habeas Corpus, the writ of, shall not be sus- pended, unless in cases of rebellion or invasion 9 14 Ipipeaehments, the House of Representa- tives shall have the .sole power to impeach 4 1 shall all be tried by the Senate, its members, in such case, shall be upon oath or affirmation; two-thirds of the members present shall be neces- sary to convict 4 2 the Governor, and all civil officers, li- able to judgment, and consequences on conviction 4 3 Indictment. — See Party Accused and Li- bels. Informations. — See Criminal. Jeopardy, no person, for the same offence, shall be twice put in jeopardy of life or limb 9 10 Judges, the, of the Supreme Court, Courts of Common Pleas, and such other Courts of Record as are, or shall be established by law, shall be elected by the people and commissioned by the governor. They shall bold their offices for a certain term of years. They may be impeached and re- moved — they shall receive an ade- quate compensation, which shall not be diminished during their con- tinuance in office, but shall take no fees or perquisites, nor hold any other office of profit — they shaH re- 8)4e within their districts Amend. of the Supreme Court, by virtue of their offices, shall be justices of Oyer and Terminer, &c., in the several coun- ties 5 4 of the Court of Common Pleas, within their respective counties, shall be Justices of the Peace, so far as re- lates to criminal matters 5 9 Judicial Powers, of the Commonwealth, vested in the several courts and Jus- tices of the Peace 5 1 Jurisdiction, the, of the Supreme Court shall extend over the State 5 4 Justices of the Peace, or Aldermen, shall be elected in the several wards, dis- tricts, &c. by the qualified voters, at the time of the constable's elec- tion, in such number as shall be di- rected by law, and commissioned by the Governor for five years. But no township, ^c, shall elect more than two justices, &c. without the con- sent of a majority of the qualified electors in such township, &c 6 7 See Judges. Laws shall not be suspended except by au- thority of the Legislature 9 12 Legislature. — See General Assembly and Military. Libels, on all indictments for, the jury, under the direction of the court, shall have a right to determine the law and the facts 9 7 Military, the, shall, at all times, be in strict subordination to the civil power — in time of peace there shall be no stand- ing army, without consent of the Legislature 9 2SL 6 S 9 17 8 iTtSK miitia, the freemen, armed, organized, and disciplined, shall constitute the mili- tia: those who are conscientiously scrupulous of bearing arms shall not be compelled to do so but pay an equivalent •. No Law, ex post facto, or impairing con- tracts, shall be made No Pertm, shall be attainted of Treason or Felony by the Legislature 6 No Warrant, shall issue to search any place or seize any person or thing without describing them, as nearly as may be, nor without probable cause, sup- ported by oath or affirmation #<. ... 9 Officer. — See Persons Disqualified. Officers, appointed for a term of "years, ac- cept on the condition, " if they shall so long behave themselves well, and until their successors shall be duly qualified" 6 3 " whose election or appointment is not provided for in this Constitution, shall be elected or appointed as shall be limited by law" 6 3 all, executive and federal, and members of the General Assembly, shall be bound to support this Constitution and perform the duties of their offices with fidelity 8 1 Oyer and Terminer, no commission ofj or jail delivery shall be issued 9 15 Party accused, the, or the Commonwealth may remove the indictment accord- ing to law 5 5 People. — See Power. Persons Disqualified : no person shall be appointed to any county office unless he has been a citizen and inhabitant thereof one year next before his ap- pointment, &c fi 8 members of Congress, or any persons holding office or appointment under the General Government shall not hold any State office to which a sal- ary, fees or perquisites are by law attached. The Legislature may by law declare what offices are incom- patible 6 8 no member of tlie Senate or House of Representatives shall by the Gover- nor be appointed to any office dur- ing the time for which he shall have been appointed 6 8 no person who believes in the existence of a God or a future state of rewards and punishments, shall, on account of his religious sentiments, be dis- qualified from holding any office. .. S 14 Petition or Remonstrance, the right of the citizens to assemble and to apply to the Government for redress of griev- ances, by petition or remonstrance, shall not bo questioned, nor llieir right to bear arms in defence of themselves or the State 9 20-1 Prisoners, are all bailable, except in certain cases 9 14 Printing. Presses, shall be free to every person, and no law shall ever be made to restrain them 9 7 Private Property, shall not be taken with- out law and just compensation being INDEX TO THE CONSTITUTION OF PENNSYLVANIA. xlvii Proetss, all, shall issue in the name of the Commonwealth • ■ • 5 II Proteeutions, shall all be carried on in the name and by the authority of the Commonwealth of Pennsylvania. .. 5 II Proiecuiiong. — See Criminal. Prolhonotaries, Recorders, &c., shall be elected at the general election by the qualified electors of each county, &c. and commissioned by the Governor to hold their offices for three years 6 3 the Legislature shall provide for the manner of their election and their number — vacancies to be filled by the Governor, and those appointed to continue in office until successors are duly appointed 6 3 Kegiater's and Recorder's, court shall be established in each county 5 10 /ieligious Rights: all men have a right to worship Almighty God according to their own conscience — no man of right can be compelled to attend, er6ct, or support any place of wor- ship, or support any ministry against bis consent — there shall be no inter- ference with the rights of conscience nor any preference by law given to any religious establishment 9 3 :liepresentatives, to be chosen every year . . I 2 who may be a representative I 3 shall be apportioned according to the number of taxable inhabitants .... 1 4 Resolution, every resolution, order, or vote, requiring the concurrence of both Houses, shall be presented to the Governor and undergo the same for- malities as bills 1 24 Retenue. — See Bills. Rights, the, of Incorporated Companies jihall remain as if this Constitution had not been altered 7 3 of men — they are all born equally free and independent, and have certain inherent and indefeasible rights ... 9 I Schools, for the Poor, shall be provided for by law, in such a manner that the poor may be taught gratis 7 1 Secretary of the Commonwealth, appointed by the Governor 2 8 his duties defined « . 3 15 Senators, their number limited — how to be determined 1 6 to be chosen for three years I 5 to be elected in districts, provisions as to the formation of the districts ... 1 7 qualifications of a Senator, his age and residence 1 8 of their classification 1 9 Senators and Representatives, to receive compensation for their services — privileged from arrest, except in cer- tain cases — freedom of speech guar- antied I 18 Sheriff's and Coroners, one person shall be chosen for each office, who shall be commissioned by the Governor, and hold his office for three years 6 2 Senate, mhen acting on nominations to office, shall sit with open doors; and the vote be taken by yeas and nays 2 8 Soldiers shall not be quartered in any bouse in time of peace, without consent of the owner, nor in time of war, unless in the manner prescribed by law 9 23 State Treasurer, a, shall, by the Legislature, be annually elected 6 6 Supreme Court shall appoint its several Prothonotaries for three years .... € 3 shall have the ,iowers of a court of chancery, for certain purposes, and these purposes may be enlarged or diminished by the Legislature .... 5 6 The Writ of Habeas Corpus shall not be suspended, except on extraordinary ' occasions 9 14 Titles of nobility, or hereditary distinctions, shall not be granted ; nor any office created, the appointment to which shall be for a longer term than during good behaviour 9 24 Treasury, no money to be drawn from the treasury, but in consequence of ap- propriations by law 1 22 Trial oy Jury shall remain as heretofore . 9 C THE SCHEDULE provides as follows : Sect. I. All former laws continue in force, and all rights, prosecutions, actions, and claims, continue as if the Constitution had not been altered. II. This Constitution to take effect from January 1st, 1839. III. The clauses, &c. which have not been altered to be construed as heretofore. IV. The General Assembly of 1838-39 shall be regarded as the first General As- sembly under the amended Constitu- tion. V. Of the Governor elected in 1838. VI. The commissions of the judges of the Supreme Court shall expire as is herein detailed. VII. The commissions of the President Judges of the several judicial districts, and of the Associate Judges, shall expire as is herein detailed ; and also those of the remaining judges, VIII. The coihmissionsof the Recorders of the several Criminal Courts shall expire as is herein laid down. IX. The first Legislature to classify the As- sociate Judges, whose commissions shall expire as is herein detailed. X. Prothonotaries, &c, (except those of the Supreme Court,) shall be first elected, under this Constitution, at the General Election in 1839, in such manner as is by law prescribed. XI. The appointing power shall remain as heretofore ; and the persons in office at the adoption of the Constitution shall continue until provision by law shall be made, &c. XII. The first election for aldermen and justices shall be held in the year 184Q. The Legislature to provide for that election, and for subsequent similar elections; all their commissions to expire fifteen days after the day fixed by law for the election of said officers, THE MAGIS'TllAtE'S VOCAfeULARY OF LAW TERMS ANti LAW PHRASES. TRANSLATED AND EXPLAINED, FROM THE MOST APPIlOVEp AUTHORITIES. LAW TERMS AND PHRASES, - Such as are most frequently used, not only in courts of justice, and in magis- trates' f0ices, but among'men of business, andin common conversation, the pre- cise meaning ofiohich is not so generally understood as is desiro.ble^explained arid their meanings given according to the most modern and approved authorities.. ACCESSARY. An accessary is he who is , hot the chief actor in the offence, nor present at its performance ; but is some way concerned therein either before, or after, the fact committed. Aii acces- sary, before the fact, is defined, by Sir Matthew Hale, to be, one who being ab- sent at the time of the crime comrnitted, doth yet procure^ cOunSel or comtnand another tO commit a crime. Herein ab- sence is necessary to m^lce him an acces- sary ; for if such procurer, or the like; be present, he is gtiilty of the crime as princi- pal. An accessor)/, after the fact, liiay be when a person,' knowiiig'a felony to' have been ' committed, receives, relieves, comforts, or assists, the' felon. Therefore to make an accessary ea; post facto [after the fact], it is in the' first place required that he knows of the felony cdmrMitted; in the next; place he must receive, relieve, comfbrti, or assist him — and generally any assistance .whatever, given to a felon, to hinder, his being apprehended, tried, ©r' suffering punishment, makes the assister an aocestery. 1 Hal. P. C, 616. 618. ■i Hawk: P. C. c. 29 sec. 33. 4 Bl. Com. 35,' 36^37. i ; ACCOMPLICE, one of many eqdally concerned, in a felony ; generally applied to those who are admitted to give evidence against theii? fellow criminals. Leach's Hawk. 2. 37. '■•■■ >> ; : ACQUTTTAL,^t6 free, to ac^iiit or dis- charge; ^ most'cpmmonly signifies a de^ liverance and setting free of a persoii from the, suspicion, or guilt of an offence, as for- instance,.hei that on a trial is discharged of a felony is said to be acquietatvs de felonia ; and if he be drawn in question again for the same crime he may plead auter fois acquit, [before acquitted], as his life sh(all not be twice put in danger for the same offence. 2 (nst. 385. ADJOURNMENT. The same with the French, word adjcmrnment, and signi- fies a putting off until another day, or to another pliice. Cowell. Bloihtt.. 4-n ad- journment of Parliament [of Congress or the General Assembly] is no more than ii continuance of the session from one time to another. 1 Bl. Com. iSS. APFIDXVIT. An affidavit is an oath in writing, 'sworn before some, judge, or offlcisr of a court, or otHer person, who hath £i'tithority to 'administer such oath, to- evince the truth of certain facts thereirt cotitained: 3 Bt Com. 304. 1 Lill. Abr., 44. AFFRAY. An affray is the fighting of two' or more persoris in some public place, to the terror of his majesty's sub. jects, [or, the people of this Commop' wealth]; for, if the fighting be in private^, it is' no affray, biit an assault. 1 Hawk- P. C. c, 6S: A^Bl. Com. 14^ ;' and there- must be a stroke given j or offered, or a^ weapon' drawHjj otherwise it i's no affray.. ,3 Inst. 1'58. ■' , ^ AiGE is particularly used;. in' law, for those special timps Vs-hich enable persons of both sexes to do certain acts, which be- (xlix) 1 MAGISTRATE'S lijve, through want of years and judgment, they are prohibited to do. As for exam- ple, a male at twelve years old may take i he oath of allegiance ; at fourteen, is at years of discretion, and therefore may consent or disagree to marriage ; may choose his guardian ; and, if his discretion l)e actually proved, may make his testa- ment of his personal estate : at seventeen, may be au executor ; and at twenty-one, is at his own disposal, and may alien his lands, goods, and chattels. A female, •jilso, at seven years of age, may be be- irothed or given in marriage; at nine, is entitled to dower; at twelve, is at years vereign, such matters as relate to both slates. 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 re- fiirn is indefinite, so is their business un- 'ccrfain ; arising from emergent occasions : aud commonly, the protection and affairs ■fif the merchants is their greatest care. T'he extraordinary ambassadors, are made pr^ tempore, and employed upon some particular great affairs, as condole- iTients, congratulations, or for overtures of VOCABULARY. marriage, or the like. 4 Inst. 153. Mol- loy, 144. AMICUS CURI^. If a judge is doubtful, or mistaken in matter of law, a stander-by may inform the court, as ami- cus curicB, [a friend of the court.] 2 Co. Litt. 178. ANNO DOMINI, [the year of our Lord] ; the computation of time from the incarnation of Jesus Christ, which is gen- erally inserted in the dates of all publip writings. Jacob. ARBITRATION is where the parties injuring and injured submit all matters in dispute concerning any personal chattels, 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 umpire, to whose sole judg- ment it is then referred: or frequently, there is only one arbitrator originally ap- pointed. 3 Bl. Com. 16. ARBITRATOR, is a person indiffe- rently 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. Termed de la Ley, 54. ARRAY, an old French word, signify- ing the ranking or setting forth of a jury of men impanelled on a cause. 18 i/. 6. c. 14. And wheii we say to array a panel, that is, to set forth the men impan- elled one by another. F. N. B. 157. To challenge the array of the panel, is at once to except against all persons arrayed or impanelled, in respect of partiality, or some default in the sherifF, [or county commissioners]. Co. Lit. 156. a. 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. Arraignment is necessary only in capital cases.' The trial may go on in larceny without arraignment. 5 S. 4" R. 316. In all cases of misdemeanour, a defendant may appear and plead by at- torney. Ibid. ARREST, a restraint of a man's per- son, obliging him to be obedient to the law ; and it is defined to be the execution of the command of some court of record, or officer of justice. An arrestm the be- ginning of imprisonment where^ man is LAW TERMS AND PHRASES. first taken and restrained of his liberty by power of a lawful warrant. 2 Shep. Ahr. 648. Wood's Inst. 575. And arrests are either in ciml or criminal cases ; and there is this difference between the two, that none shall be arrested for debt, tres- pass, detenoe, 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 pre- cept. Termes de la Ley, 54. ARREST OF JUDGMENT. To move an arrest of judgment, is to show cause why judgment should not be stayed, not- withstanding a verdict given. 3 Inst. 210, 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 cre- ditor or legatee, so far as such goods and chattels extend. 2 Bl. Com. 51 1 . 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 interest, in things, by an assignment from an assign- or, [the person who assigns]. Dyer, 6. 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 consideration. Termes de la Ley, 63. An action of assumpsit is given to a party injured by the breach, or non-per- formance 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 lias sustained by the violation of the con- tract. 1 Bac. Ahr. ^ ATTORNEY AT LAW is a person duly admitted in the courts, and who is appointed by another person, usually de- nominated his client, to prosecute or de- fend 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. 3 Bl. Com. 25. BACKING OF WARRANTS is the signing of an authority on the back there- of,' 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 Bl. Com. 291. BAIL 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. 3. 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. BAILMENT is a delivery of goods in trust upon a contract, expressed or im- plied, that the trust shall be faithfully exe- cuted on the part of the bailee, [the per- son to whom the goods are delivered.] As if cloth be delivered, or (in our legal dia- lect) bailed to a tailor, to make a suit of clothes, he has it upon an impfied con- tract, to render it again when made, and that in a workman-like manner. 2 Bl. Com. 451. BARON AND FEME are husband and wife. Co. Litt. 112. 1 Bl. Com. 441. 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. BATTERY is an injury done to an- other in a violent manner, as by striking or beating of a man, pushing, jolting, &c. And it is also defined by our law to be a trespass committed by one man upon an- other, vi et armis et contra pacem, <^c. Termes de la Ley,y 85. BIGAMY signifies a double marnage, or marriage of two wives, one after ano- ther, and not the having of two together, more properly called polygamy. 3 Inst. 88. 4BZ. Com. 163. BILL, single, or penal, is a writing wn- der seal, wherein one man is bound to another, to pay a sum of money on a day that is future, or presently on demand, ac- cording 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 adminis- trators, to another, to pay a sum of money, or to do some other act, as to make a re- lii MAGISTRATE'S VOCABULARY. lease, surrender an estate, for quiet enjoy- ment, to stand to an award, save harm- less, perform a will, or the like. It con- tains 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 obliga- tion is peremptorily binding. 2 Bl. Com. 339. 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 re- ward 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. BROKERS are those that contrive, make and conclude bargains and contracts, between merchants and tradesmen, in mat- ters of money and merchandise for which they have a fee or reward. Cornell, Blount. CAPTION. When any commission at law, or in equity, is executed, the commis- sioners subscribe their names to a certifi- cate, testifying when, and "where,' the commission was executed ; and this is called a caption. Also, when a man is arrested, the act of taking him, is termed a caption: There is, also, the'oapiiow of an indictment, which is the setting forth of the style of the court before which, the jurors made their presentment^ Jacob. CASH (sale for), Ii) Pennsylvania, if one, sells goods .fop cash, and the vendee, [the purchaser], takes them away, vvithout payment of the money, the vendor, [the seller], may pursue the party and retake theftij'and he would be justified in doing so by force. 1 Yeates, 527. • CAVEAT EMPTOR is a maxim which enters into every piarchase, where the con- trary is not stipulated, and equity cannot relieve against it, any more than it can against the terms of a bargain. 3 Penn. Hep. 447. CLERGY, BENEFIT OF. By stat. 3 Edw. 1. o. 3, it is enacted that for the scarcity of clergy in the realm of England to be disposed of in religious houses, or for priests, deacons and clerks of parishes, there should be a prerogative allowed to the clergy ; that if any man, that could read as a clerk, were to be 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 pri- soner could read, then he was to be de- livered 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 pri. soner could not read, then he was to hi; put to death. 2 Hale's PI. Cr. 377. COHABITATION. For civil purposes, reputation and cohabitation are sufficient evidence of marriage. 1 Penn. Rep. 450. COMMISSION. The commission of a justice, or a judge, is conclusive evidence of his appointment. 1 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. COMMON LAW. The common law is grounded upon the general customs of the realrfi, 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 sttldy, " observation, and experience, and refined by learned men in all ages. Co. Litt. 97. 142. 1 Bl. Com. 63. et seq. 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, 1st, the want of religious belief, such as renders the party incapable of the obligation of an oath : 2d, the infamy of his character : 3d, a legal interest in the result of the cause. 2 Stark. Ed. 392. COMPOUNDING FELONY, or theft bote, is where the party robbed, not Only knows the felon, but also takes his good.s again, or other amends, upon agreement not to prosecute. I Hate. P. C. c. 59. s. 5 CONSPIRACY is an agreement of two, or more, persons falsely to indict onei, oi to procure him to be indicted, for felony, riot, or other misdemeanour; who, after acquittal, shall have a writ of conspiracy. Termes de la Ley, 173. , CONTINUANCE. A party who neg- lects up to the day of hearing by a justice LAW TERMS, AND PHRASES. liii to take out a subpoena, or resort to the pro- per legal steps, to obtain tbe attendance of his witnesses, is not legally entitled to a continuance. 1 Ashm. R. 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. 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 Penn. Rep. 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. 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 no implied 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 ray order, and when upon his own authority. 1 Bl. Com. 430. CRIMfi is a positive breach, or disre- gard of some existing public law, and generally means such offences as amount to a felony. 4 Bl. Com. 5. CUSTOM AND USAGE. To make a custom, or usage, of trade obligatory, as a law of that trade, it must be certain, 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 ap- plied to what the jurors are to inquire of and bring in, when any action passeth for the plaintiff. Co. Litt. 257. 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 date was made. 1 Inst. 6. 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. 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 pweth 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. Sel. N. P. 484. DEDIMUS POTESTATEM, is a writ issued out of the court of chancery, [or other court], to commissioners, authori- zing 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 fotestatem, from the clerk of the crown in chancery, empowering cer- tain persons, therein named, to administer the usual oaths to him, which done, he is at liberty to act. 1 Bl. Com. 351. DEED, is an instrument in writing, on parchment, or paper, and under seal, containing some conveyance, contract, bargain, or agreement between the parties thereto ; and it consists of three, principal points, writing, sealing, and delivering. Co. Litt. 171. 2BI. Com. 295. DEFAMATION is the offence of speak- ing slanderous words of another. Termes de la Ley, 233. DEFAULT is commonly taken for non-appearance in court at a day assign- ed, though it extends to any omission of that which we ought to do. Co. Litt. 259. DEFENDANT is the party that is sued in a personal action ; as tenant is he that is sued in an action real. Coivell, Blount. DEMAND, signifies a calling upon a man for any thing due. 8 Rep. 153. 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], exhil)- 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. DILATORY PLEAS are such as arc uv MAGISTRATE'S VOCABULARY. put merely for delay ; as coverture, mis- nomer, and the like. 3 Bl. Com. 301. DISCHARGE on writs, and process, &c., is where a man confined by some le- gal 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 Lil. Abr. 470. DISTRESS, in the most general sense, is any thing which is taken and distrained for rent behind or in arrear. 2 Bl. Com. 42. Sel. Nisi Prius, 612. DIVORCE is a separation of a man and a woman who have been, de facto, married togetherj made by law, and is- of two kinds; the one total, the other par- tial ; the one a vinculo matrimonii-, the other, merely a mensa et tlioro. 1 Bl. Com. 439. 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, i. e. entered on the docket of that term. West Symbol, ■par. 2. sect. 106. 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. 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. 1 Inst. 30. DUCES TECUM is a writ out of chancery, commanding a person to ap- pear at a certain day in court, and to bring with him some writings, evidences, or other things, to be inspected and ex- amined in court. Reg. Orig. DUPLICATE signifies a copy or tran- script of any deed, writing, or account. St. 4 Car. c. 10. 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. 397. EAVES-DROPPERS are such as listen 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. 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 caso 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. 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 is due to him : and exaction is where he wrests a fee or reward, where none is 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. 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 administer. Dyer, 166. Sel. Nisi Prius, 706. EX OFFICIO, an act done in execution of the power which a person has by virtue of an office, to do in certain cases, and without being applied to ; thus a justice of the peace may not only grant surety of the peace upon the complaint or request of any person ; but he may demand, and take it ex officio, at discretion, &c. Dalt. 270. EX PARTE, party of the one part; as a commission ex parte, in chancery ," which is a commission taken out and exe- cuted by one side or party only, on the other party's neglecting or refusing to join. Cowell, Blount. 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 giaod by matter ex post facto, that was not so at first by election, &c. 5 Rep. 22. EX POST FACTO LAWS are such as are made to operate on facts committed before the makii% of the law: such as revenue acts, imposing duties on goods from a day named in the act, but pre- vious to its passing, for the purpose of preventing evasions which the notice given, by the time required for passing the law, would otherwise give rise to. Jacob. LAW TERMS AND PHRASES. Iv 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. Co. Liit. 124. Sel. Nisi Prius, 814. 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 simple. 2 Bl. Com. 104. FELO DE SE. When a person with deliberation, and direct purpose, kills him- self by hanging, drowning, shooting, stab- bing, &c., this is felo de se, if he be of the age of discretion, i. e. fourteen, and compos mentis, [of sound mind]. 3 Inst. 44. Dalt. ch. 145. FELONY, in tbe 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 ofienders; though now, by the statute-law, that punishment is, for the first offence, universally remitted. Trea- son itself, says Sir Edward Coke, was anciently comprised under the name of felony. All treasons, therefore, strictly speaking, are felonies; though all felo- nies 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 al- ready dead ; homicide, by chance-medley, or in self-defence; and petit larceny or pilfering; all which are, strictly speaking, felonies ; as they subject the committers of them to forfeitures. So that, upon the whole, the only adequate definition of felony seems to be, that which is before laid down, viz : an offence which' occa- sifins 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 degrees of guilt. 3 Inst. 16. 4 Bl. Com. 94. FEME COVERTS [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 se- cured to her by deed. 7 Term Rep. 545. Who are deemed feme sole traders in Pennsylvania, see Purd. 509. Dunl. 65. FORCIBLE ENTRY AND DE- TAINER. The first is a violent actual entry into houses or lands ; and forcible detainer is a withholding, b)' violence, 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.^TS. Keilw. 22. 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 lam 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 or will. 3 Inst. 1 69. 1 Rol. Ab. 65. And Blackstone defines it to be " the fraudulent making or altera- tion of a writing to the prejudice of another man's right." 4 Com. ^45. FRAUD is defined to be a deceit in grants and conveyances of lands and bar- gains, and sales of goods^ &c., to the dam- age of another person. Baco'n's Abr. 3. 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 "s twenty-one years. 1 Bl. Com. 462. GAOLER. A gaoler is the servant of the sheriff", and the master, or governor of a prison ; and, as such, is considered as an officer relating to the administration of justice.. 4 Roll. Abr. 76. 1 Bl. Com. 345. HOMICIDE, is the destroying the life of any human creaturb; it is of three kinds, viz., justifiable, excusable, and fe- lonious. 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, Ivi MAGISTRATE'S VOCABULARY. jtistifiable humicide, is of divers- kinds. 1. Such as is owing to some unaVoidabile necessity^ withoutn any will, .intention, orl desire, flud without; any inadvertence or negligence in the party killing ; ,&nd, there- fore, without any shadow of blame., As, for instance, by virtue of such an office: as . obliges .one> in the execution of public jus- tice, to put a malefactor to death, who hath forfeited his life, by the laws ,and verdict of his country. Again, in sorne cases, homicide is justifiable, reifher. by the permission, ths^n by the absolute com- mand, of the law, either for, the advance- ment of public_/MSitce, which, with?er- diet at large. Co. Litt. 1'28.,. VI ET ARMIS are words used in in- dictments to express the charge.of a forcible and vi()tent committing any crime or tres- pass. 2 Ilaivk. P. C, 170. 1 Hawk. 150. 220. VIVA VOCE is where a witness is ex- amined,, personally, in open court. Cotcell UNLAWFUL ASSEMBLY is where' three; 01* more, persons assemble together,-, with intent, mutiially, to assist each other ' TECHNICAL LAW TERMS EXPLAINED. kv in the execution of some enterprise of a private nature with force or violence. 1 Haw. 155. Vide Riot. VOID and VOIDABLE. In the law some things are absolutely void, and some are voidable. A thing is void which, is donp 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 it is avoided. 2 Lill. Abr. 653. VOLUNTARY OATH is where a man takes an oath in an extra-judicial matter of which the law takes no notice. 4 Bl. Com. 137. USURY is the interest, or profit, exact- ed for a loan beyond what is allowed by statute. 4 Bl. Com. 453. WARRANTY is a promise, or cove- nant, by deed, made by the bargainer, for himself and his heirs, to warrant, or se- cure, the bargainee, and his heirs, against all men for the enjoying of the thing granted. Bract, lib. 2 and 5. West. Symb. par. 1. A warranty is either real or per- sonal. A real warranty is a covenant 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 charta, to yield other lands and tenements to the value of those that shall be evicted by elder title. And warranty being a cove- nant real, bindeth to yield lands in recom- pense. 1 Inst. 365. 384. Personal war- ranty is when it concerns goods and chat- tels, and it is created by implication ; for the purchaser of goods may have a satis- faction from the seller if he sells them as his own and the title proves deficient, al- though there be no express warranty to that purpose. Cro. Jac. 474. WHITE-MEATS, are milk, butter,, cheese, eggs, and any composition of them, which, before the Reformation, were forbid in Lent, as well as flesh, until Henry VIII. published a proclamation allowing the eating of white-meats, in^ Lent, Anno 1543. Cowell, Blount.' WILL, OR LAST WILL AND TESTA- 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 cases, after judgment against a jury that hath given a ialse verdict. Attainted is a word used particularly for such as are found guilty of some crime, and especially of treason or felony. An- ciently a person attainted of high treason forfeited his lands, &c., his blood was cor- rupted, and he and his posterity rendered base. Averment (from the French averer) is an offer of the defendant to make good or justify, an exception ()leaded in abatement or bar of the plaintiff's action, and it sig- nified the act as well as the offer. Bailimck (a word taken from the French, whose territory was divided into bailiwicks as that of England is into coun- ties) is frequently used for county. Baron hath various significations. It is taken for a degree of nobility next to viscount. In ancient records it mcludes all the nobility of England. 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 ; ex- cept in cases of high treason, [or personal 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 seized of an estate of inheritance, and has by her issue, born alive, which is ca- pable 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 answer. Capias ad satisfainendum {ca. sa.) is a writ of execution, commanding the she- riff 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 issu- ing of a patent for unappropriated land, &c. De bene esse : — ^to take a thing de bene esse, is to accept it as well done Ibr the present ; — but when it comes to be more fully examined or tried, to stand or fall ac- cording to the merit of the thing in its own nature. As when a complainant's witness- es are aged or sick or going out of the state, so that there is danger of their testi- mony being lost ; the court of chancerj will order them to be examined 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-examiped. De novo — anew — over again. Dedimus potestatem (we have given the pmeer) is a writ giving authority to exa- mine witnesses, &c. Extent signifies a writ or commission to the sliejriff, for the valuing of lands or tene- ments. Fee -simple. A tenant in fee simplel is he that hath lands, tenements, or heredita- ments, to hold to him and his heirs for ever, generally absolutely and simply, ^vithout mentioning what heirs, but refeP TECHNICAL LAW TERMS EXPLAINED. Ixvii ring that to his own pleasure or to the dis- position of the law. Fee tail, or fee conditional,, is a fee rc; strained to some particular heirs to the exclasion of others. Feme covert, a married woman. Feme sole, a single woman. Fieri facias I fi, fa."] (literally, that you cause to be made) is a writ commanding the sheriff to levy the debt and damages re- covered, 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 garnishment or warning not to pay the money to the de- fendant, 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 Itim who is imprisoned be brought before the court or a judge thereof, with the cause of his detention. Hereditaments signify all such immove- 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 committed 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 incident- al matter, which happens between the be- ginning and end of it. Joint tenants are those that hold lands or tenements jointly by one title. Jointure is a settlement of lands and tenements made to a woman in considera- tion of marriage, or a covenant whereby the husband or some friend of his assureth 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. Levari facias is a writ for levying a sum of money on a man's lands and tene- ments, goods and chattels, who has for- feited his recognizance. Mainpernors are those persons to whom a man is delivered out of custody, or pri- son, or those becoming bound for his ap- pearing. Main prite is the taking of a person into friendlyqustody, who otherwise might be committed to prison, upon security be- ing given that he shall be forthcoming."at the time and place appointed. Mandamus (i. e. we command) is a com- mand issuing from a .superior court of ju- dica,ture, requiring them to. do some par- ticular thing therein specified, which ap- pertains to their office and duty. Medietas lingua signifies a jury of which one half consists of foreigners. [It is not allowed in Pennsylvania.] Mittimus (i. e. we have se«<)is the name of a precept from a justice to a jailer on sending an offender to him for safe keep- ing, and Ukewise of a writ for sending re- cotds 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 interlocu- tory matter, as to summon juries, witness- es, &Ci It also signifies such process 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 an action of debt, signifying he owes nothing. Nolle prosequi signifies that the plain- tiff is unwilling to prosecute the suit. Non assumpsit is a plea in personal ac- tions, 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. Non est factum is a plea on an action on a bond or deed that it was not executed. Non est inventus is the return of a she- riff on a writ when the defendant was not found in his county. Non suit is the letting of a suit or action fall. Non sum informatus is the answer of an attorney when he is not informed or instructed to say any thing material in de- fence of his client. liviii MAGISTRATE'S VOCABULARY. Nvl 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 burthen of pro- bing. Oyer and terminer is a commission to hear and determine all treasons, felonies, &c. Posse comitatus, the power of the coun- ty, 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 disobeyed. 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. Prochien amy : — the next friend. Quantum meruit (i. e. hme much he hath deserved.) It is an action of the case, grounded on the promise of another to pay him for doing any thing so much as he should deserve. Replevin is a remedy granted upon a distress, being a re-deliverance of the thing destrained, to the first possessor, on secu- rity or pledges, according to the English law, being given by him to try the right with the destrainer and to answer him in a court of law. Seisin signifies possession, and to seize is to take possession. Subpoena is a process to cause witnesses to appear and give testimony, under a pen- alty 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 ibe sherijf to cause it to be made known io a defendant against whom judgment has been given, that he must appear on a certain day and show cause why execution ought not to issue. Testatum is a writ in personal actions, after the sheriff has certified that the de- fendant is not in the county, upon which this writ is sent into one 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 indictment 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, &c. TRANSLATED. The following translations have been selected from " Jones' translation of all the Greek, Latin, Italian and French quotations which occur in Blackstone's Commenta- ries on the Laws of England, and also in the notes of the editions by Christian, Arch- bold and Williams :"— they are, generally speaking, those which are in most common A fortiori. By a stronger reason. Ab initio. From the beginning. Ad valorem. According to the value. A priori. Beforehand. A mensa et thoro. From bed and' board. A vinculo matrimonii. From the bonds of matrimony. Assumpsit, 'He undertook. Ad satirfaciendum, To satisfy. Animo furandi. With a design of steal- ing them. Alias, As formerly. BonA fde. Actual, real, in good faith. Certiorari, To have notice given him. Curia advisare vull. The court will consider it. Casus omissus, An omitted case. Coram nan judice, Before a judge not having jurisdiction. Cepi corpus, I have taken the body. Capias, That you take. Caveat, That he take care. Contra bonos mores. Against good man- ners. De facto, In fact. De novo, Anew. Dedimus potestatem, We have empow- ered. De bonis non. Of the goods not admi- nistered. Dernier resort. The last resort. Ex post facto, After the fact. LAW PHRASES, &c., TRANSLATED. Ixix 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. EnceitUe, Pregnant. Ex contractu, Arising from a contract. E!x delicto, Arising from offence or mis- deed. Ex gratia. As matter of favour. Exdneretur., Let him be exonerated. Ex visitatione Dei, By the visitation of God. Feres naturiB, Of a wild nature. Fieri facias, [Fi. Fa-I 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. Jure divino, By divine right. In extremis. In his last moments. Ipso 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, In a court of law. In foro conscientitB, In a court of con- science. In personam. In respect to the person. In rem. In respect to the thing. In toto. In the whole, entirely. Inter alia. Among other things. Imperium in imperio, A government within a government. In futuro. At a future period. Inkanter, Instantly. Leges non scriptes. Unwritten laws. Levari facias. That you cause to be levied. Malum in se. Crime in itself. 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. Na7n quifacit 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 an4 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 obit. After he dies. Pendente lite, Pending a suit. Petitio prindpii, Begging the ques- tion. Puisne, Younger. Propria manu. With his own hand. Pluries, As more than once. Quo ad hoc, As to this. Quo warranto. By what warrant. Quantum vaJebat, 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 defense. Sub modo. In a certain degree. Scire facias. That you make known. Subpoena ad testificandurp,, A subpoena to give evidence. Subpana duces tecum. You shall bring with you the papers mentioned in the sub- poena. 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 qucestio, A perplexed question. Virtute officii sui. By virtue of his office. Vox populi, vox Dei, The voice of the people is the voice of God. THE MAGISTRATE'S DAILY COMPANION, AND BUSINESS MAFS LEGAL GUIDE. I. Definition of a Flea in Abatement. I m. Judicial Decisions. n. Nature of such pleas before a Justice. | 15, Misnomer • and, 21, Coverture. 1. A PLEA IN ABATEMENT is a plea put in by the defendant, in which he alleges some matter to show that he ought not to he impleaded [sued] ; or, if impleaded, not in the manner and form he is ; therefore, praying that the suit, or plaint, may abate, that is, that the suit of the plaintiff may, for that time, cease. B. Mr. II. The pleas in abatement, before a justice of the peace, are, usually, to his jurisdiction — or that the name of the defendant, or defendants, is not properly set forth — or that the process which has been issued, and served, has not been issued and served at such time, or in such a manner, as the law requires. "This summons," says the defendant, " bears date, August 6th, and is made returnable this day, the 10th. This is contrary to law, which requires that it shall be issued not less than_^«e, nor more than eight days before the return day; whereas, this has been issued but four days ;" — or he objects, and says, " this summons was issued right enough, but it is only three days since it has been served, and the law requires that it shall be served at least /owr days before the return day," In deciding upon such pleas as these, if the facts are found to correspond with the statements made, the plea should be admitted by the justice, and the case dismissed. The rejecting of such pleas orily subjects the parties to costs and trouble, without bringing to issue the matter at variance between them. A writ of certiorari would take the proceedings and process before a higher tribunal, and the proceedings would, on proof of any of the above allegations, be set aside. III. 1. A defendant cannot plead ia. abatement on an appeal, having neglected to do so before the justice. 4 W. 433. 2. Pleas in abatement cannot be put in after pleas in bar, unless under special circumstances, of which the court must judge. 11 S. Sf R. 537. 3. If a defendant wish to preserve his right to such a plea, he must reserve it by asking special imparlance, and have the reservation entered on the record. 5 TV. 373. iW.^S. 398. 4. It is a good plea in abatement that the plaintiiTis a fictitious person. 19 /. 308. 5. An appearance, before the justice, for the purpose of objecting to a return of the writ, is not a waiver of the defect. 1 Cow. 1. 6. It is settled that in all cases of a joint obligation or deed, or a joint contract in writing or by parol, if one only be sued he must plead the matter in abate- ment. Gow, P. 224. 7. In order to sustain a plea of non-joinder of other parties jointly liable, it must be proved, that each and all of the parties named therein contracted with the plaintifli , 6 Perm. L. J. 475. (71) 72 ABATEMENT. 8. A defendant is not obliged to plead in alatemerU the non-joinder of a part- ner who ought to have been a co-plaintif, but may lake advantage of it upon the general issue. But it must appear affirmatively that such partner was an acting partner— for if he was merely a dormant partner he need not be jomed. 4 W 456 9. 'The pending of a domestic attachment issued by the same plaintiff, agamst the same defendant, must be pleaded in abatement. 1 P. R. 442. 10. A plea in abatement of a former suit for the same cause of action, must aver that it remains pending and undetermined at the time of the plea pleaded— it is not sufficient to aver that the suit was pending and undetermined at the time ot the com- mencement of the present suit. 3 R. 320. 11. The pendency of a former suit in a foreign country can not be pleaded in abate- ment of a suit for the same cause here— and it has been held that the states of the American Union stand in the relation of foreign states as regards this particular matter. 2 W.Si S. 133, 190. 6 Perm. L. J. 142. 12. In an action upon a joint bond against the representatives of a deceased obligor, the fact of there being a surviving obligor must be pleaded in abatement or by a spe- cial plea. 2 W.40. 13. The death of a plaintiff before suit brought, may be taken advantage of by & plea in abatement or in bar. 1 W. Sf S. 438. 14. Where there is an entire want of jurisdiction of the subject matter in the court, it is never too late to object to the jurisdiction. 10 Sm. Sf M. 159. 1 Ash. 168. 15. Misnomer. — The misnomer of one of two defendants, when sued as a firm, as to his Christian name, if material at all, must be taken advantage of by a plea in abate- ment. 8 PT. 485. • 16. A misnomer of the plaintiff in an action by a corporation, must be taken advan- tage of by a plea in abatement. 2 W. 8^ S. 156. 17. An initial letter between the Christian and surname of the party ig no part of the name, and the omission of it is not a misnomer or variance. 5 J. 84. 4 W. 329. 18. An administrator sued as executor may plead the intestacy and granting letters of administration, in abatement. 8 J. 126. 19. Since the passage of the act of 16th April, 1846, Purd. 42, Dunl. 1065, a plea of misnomer can seldom avail the defendant. This act provides " that in all actions pending or hereafter to be brought in the several courts of this commonwealth, said courts shall have power, in any stage of the proceedings, to permit amendments of the record, where it shall appear to them, by any sufficient evidence, that a mistake has been made in the Christian name or surname of any party, plaintiff or defendant : Pro- vided, That if, by such alteration or amendment, the adverse party is taken by sur- prise, the trial shall be continued to the next court." No amendment can be allowed under this act before the appearance of the defendant. 6 Penn. L. J. 152. On an ex parte affidavit that a mistake has been made, the name of one of the parties may be striick out, and a new one substituted. But a deposition taken on behalf of such party, before the amendment, cannot be read after it is made. 6 Barr, 377. So, if the misnomer of the defendant be set forth in an affidavit of defence, in an action in the district court, the plaintiff, after amendment, is not entitled to judgment, the de- fence being sufficient at the time of filing the affidavit. Brown v. Hackney^ Dist. Court, Phila., March 25, 1848. 20. The court may permit the Christian name of a defendant to be added, where he has been sued by his surname only. 2 Harris, 129. 21. Coverture. — Coverture [marriage] of a female occurring after Ait brought is a plea in abatement, which cannot be pleaded after a plea in bar, unless the matter arose after the plea in bar. 4 S.SfR. 238. 22. A plea of coverture of a female defendant, if not signed by her, but by her at- torney, is bad. 2 W. 295. 23. The act of 12th April, 1845, Purd. 41, Dunl 1042, enacts that "no suit or other legal proceeding in any court of this commonwealth brought by a feme sole, [single woman] now, or hereafter pending, shall abate by the marriage of the plaintiff, or petitioner, contracted after the commencement of the same, but the husband of such plaintiff or petitioner, shall have power to become a party thereto, and prosecute the same to final judgment or decree." ABORTION— ACCESSARY. 73 ^tottion. 1. If a woman is 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 deli- vered of a dead child, this, though not murder, was, by the ancient law, homicide or manslaughter. But the modem law doth not look upon this offence in quite so atro- cious 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. 1 Bl. Com. 129. 4 Gilman, 111. 2. 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. 7 Blackf. 592. 3. Under an indictment for procuring an abortion of a quick child, which is a felony by, statute, in New York, the prisoner may be convicted of a misdemeanor, if the child were not quick. 3 Hill., 92. 4. The production of abortion is an offence at common law. 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." 6 Penn. L. J. 29. 1 Harris, 631. Bright. R. 441. fVh. Pr. 108. 5. When a female is with child, and a potion is administered to her for the purpose of destroying the child, which produces the death of the mother, it is murder in the second degree ; unless there existed in the perpetrator an intent to take away the life of the mother, as well as to destroy the offspring ; in which case, it would be murder in. the first degree. 2 ^sh. 227. 6. 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 hsis 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, al-* though 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. Whart. C. L. 225. Mttmmvvi. L VT. IX. X. XI. Who are accessaries. II. m. How and where they may be tried. rV. V. Of their punishment. Vn. Vni. How they may become principals XII. No accessaries in certain crimes. Xni. I^orms which may be required. -. I, An accessary is he who is not the chief actor in the ofTence, nor present at its performance, but in some way concerned therein, either before or tfter the fact committed. An accessary 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 accessary, for if such procurer, or the like, be present, he is guilty of the crime as principa]. An accessary 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 accessary. 1 //. F. C. 616, 618. 2 Hawk. 29, 32. > II. By " an act relative to the jurisdiction and powers of the courts," passed June 16, 1836, Purd. 251, persons charged as accessaries to murder, manslaugh- ter, or other homicide, are directed to be tried at a court of Oyer and Terminer. Accessaries before the fact are punished in the same manner as principals, if con- victed of horse-stealing. Purd. 579. Hunl. 835, 489. 74 ACCESSARY. III. Accessaries may be tried in a county different from that in whicli the prin. eipals are tried, in cases of murder or felony. Purd. 935. Dunl. 69. IV. The punishment of accessaries after the fad in cases oi felony is provided by the act of 1718. Pwrd. 936. DunnO. v.. And the act of 1825, Purd. 942, provides the punishment of persons con- victed of being aceessary after the fact to a felony in buying or receiving stolen goods, or other personal property, knowing the same to have been stolen, or in harbouring or concealing any burglars or robbers, felons or thieves, knowing them to be so. Dunl. 448. VI. If an act of parliament [or act of assembly] ena«t an offence to be felony, though it mention nothing of accessaries before, or after, yet virtually and conse- quentially those that counsel or command the offence are accessaries hefore, and those that knowingly received the offender are accessaries afUr. 1 H. P. C. 613. But if the act of parliament [or of assembly] that makes the felony in express terms comprehend accessaries before, and makes no mention of accessaries after [the fact], namely, receivers or comforters, then, it seems, there can be no acces- saries after. 1 H. P. C. 614. VII. 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 feet, others to watch, at proper distances and stations, to prevent a surprise, or to favour, 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. F. Cr. L. 850. 4 Penn. L. J. 156. Vni. In some cases even a person absent may be a principal, as he that puts poison into any thing 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 con- senting thereto. H. P. C. 216. IX. If any persop shall receive or huy stolen goods, knowing them to be stolen, or shall receive, harbour, or conceal the thieves, he shall be deemed an accessaiy; and buying the goods at an undervalue, is presumptive evidence that he knew they were stolen. 1 H. P. C. 619. (1) X. 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 accessary 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 accessary 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 vrill exempt the receiver of a felon from being an accessary 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 accessaries in the same manner as if they had been mere strangers to one another, 2 Hawk. 820. XI. But if the vrife, alone, the husband being ignorant of it, do receive any other person, being a felon, the wife is accessary, and not the husband. But if the husband and wife, both, receive a felon, knowingly, it shall be adjudged only the act of the husband, and the wife shall be acquitted. 1 H. P. C. 621. XII. In high treason, and in all crimes under the degree of felony, as petit larceny, trespass, misdemeanor, &c., there are no accessaries, either before or after the fact, but all persons concerned therein are principals. H. P. C. 613. _ . . _ — . — _ (1) A conviction against husband and wife, for jointly receiving stolen goods, cannot be sus- tained as regards the wife. And if the jury find both guilty, the conviction may be affirmed as to the husband, and reversed as to the wife. 1 Eng. L, if Eq. R. 549. And where A. and B. brought stolen goods to C. for sale, C. knowing them to be stolen, and the parties were arrested whilst in the act of bargaining for the sale of the goods, it was held, that there was no such receiving ^ the part of C. proved, as would warrant liis conviction. Ibid, 567. ACCESSARY. 75 XIII. Warrant for Misprision of Felony. B COUNTY, ss. ' iSiie (jtammaninealtli of $ennsslbanfa, To the Constable of H in the County of B- , greeting : WHEREAS complaint hath been made to J. R., one of the Justices of the Peace in and for the County of B , on bath of J. L., of H^— , aforesaid, storekeeper, that R. S., of H , aforesaid, bleicksmith, well knowing that a felony and burglary had been com- mitted by A. B., of H— — , aforesaid, labourer, in the night of Sunday, the nineteenth day of December, instant, in the dwelling-house of the said J. L., .at.H . , aforesaid, did nonceal his knowledge of the same felony and burglary, contrary to law, and to the ^vil example of all others in like case offending. These are, therefore, to command you to take the said R. S., and bring bim before the said J. R., or some other Justice of the Peace of the said county, to be dealt with according to law. WITNESS the said J. R., at H , aforesaid, the twenty-eighth day of December, in the year of our Lord one thousand eight hundred and forty-four. J. R., Justice of the Peace, [seal.} BetumcfConstMe on the Warrant. I have taken the within namied R. 8., whosetiedy I hare read^, as within T am commanded. December 3d, 1844. X. Y., Constable. Warrant for an Accessary before the Fact. M—, COUNTY, ss. , EJe ffioramontoealtj of Spcnnsslbatifa, To the Constable of lie Township of S , in the County of M , greelingr WHEREAS information hath been made on oath before J. R., one of the Justices of the Peace in and for the County of M , ^hat A. B., of the township aforesaid, yeoman, did procure, counsel, command, and abet, a certain C. D., of the same township, labourer, to commit a felony and burglary, in the night of Tuesday, the seventh day of May, last past, in the dwelling-house of E. F., at the Township of L. P., in the said county, by breaking open and entering the same; which said felony and burglary, the said C. D. did, then and there, accordingly commit. You are, therefore, hereby commanded to take the sard A. B., and bring him before the said J. R.,^; some ot^er Justice ^f the Peace of the said county, forthwith, to be dealt with according to law. . . . - . WITNESS the said J. R., at.H , in the said conntyj the'fouxth day of June, in the year of our Lord one thousand eight hundred and forty-four;\ ■ J. B., Justice of the Peace, [seal.] Return if Constable. •By virtue of this warrant, to me directed, on the fifth day of Jiine, instant, I took and arrested the within named C. D., and safely kept him in my custody, until C. S., of S Township, aforesaid, and divers others, persons to me unknown, on the sixth day of June, instant, at the township aforesaid, assaulted and ill-treated me, and the said C. D., out of my custody, then and there, rescued. And afterwards, the said C. D. is not found in my bailiwick. June 10th, 1844. X. Y., Constable. Commitment' FOR an Accessary after the Fact. D COUNTY, ss. QTiie (EommontaieaUii of $ennsslbanfa, To the Keeper of the common jail of the County of D . We herewith send you the body of J. L, of H , in the said county, coppersmith, charged, upon the solemn affirmation of J. W., of H aforesaid, farmer, with receiving, comforting, assisting and relieving a certain R. S., well knowing that a felony and robbery had been committed by the said R.,S., upon S. B,, of B county, yeoman, by assaulting and robbing the said S. B. on the sixth day of March, last past, on the public highway, leading from L to H , and feloniously taking from him the sum of forty-five dollars. These are therefore to require you to receive the said J. L. into your custodyj and him safely keep until he be 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 forty-four. J. R., Justice of the Peace, [seal.] When the person charsfed is brought before the justice and the witnesses examinednf 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. 76 ACTIONS AT LAW. Forms of Docket-Entkies in Criminal Cases. The Commonwealth •) Warrant issued April 3d, 1844. To the Constable of against > S township, on the affirmation of D. W., for receiving, J. L. 3 &c., R. S., who had committed a robbery upon S. B. April 4th, 1844. Defendant brought, denies the charge, and tenders bail, which is accepted. COSTS T .T. L- bound in $100? for the appearance of J. L. at the Justice. Cents. G. D. " " $100 3 next session, &c., to answer, &c,, Information 10 (and not to depart, &c. Docket-entry - - - - 13J f Acknowledged April 4th, 1844, before me, J. R. Warrant 85 I D. W. bound in $50 for his appearance at next sessions, 3 Recognisances - - - 40 J &c., to testify, &c., and not to depart, &c. Acknowledged April 4th, 1844, before me, J, B, Constable. (Returned to June sessions, 1844.) Serving warrant - - - 37J Mileage ---.-- 27 The Commonwealth T Warrant issued January 3d, 1844. To the constable of against Ch , on oath of J. L., for concealing S. B., who had com- R. S. jmitted a burglary in the dwelling-house of the said J. L., Subpoena issued for three ^December 28th, 1843. Defendant brought, and denies the witnesses for Commonwealth : Ccharge. On hearing, he is directed to enter bail for his served by constable. j appearance, &c., which he refuses. — Commitment issued. COSTS. pJ. L. bound in $50 T for their appearance respectively at Justice 88 Cj. F. " " $50 Cnext sessions, &c., to give evidence, Constable 94 JJ. D. " " $50 J &o., and not to depart, &c. Acknowledged January 3d, 1844, before me, J. R., Justice. J. L. and J. F. sworn, J. D. affirmed. (Returned to March sessions, 1844.) I. Actions at law, the various kinds of, defined. | II. Judicial decisions relating to ocft'ons at law. 1. 1. An action is defined to be^^the lawful demand of one's right. Actions are divided into criminal and civil; as for instance, criminal actions are to have judgment of death, &c., or only to have judgment for damages to the party, fine, and imprisonment. Co. Litt. 284. 2 Inst. 40. 2. Civil actions are divided into personal, real, and mixed. Personal actions are such whereby a man claims a debt, or personal duty, or damages, in lieu thereof, and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts, or wrongs. Of the forrner nature are all actions upon debt or promises ; of the latter, all actions for trespasses, nuisances, assaults, defamatory words, and the like. 3 Bl, Com\ 117. 3. Real actions, which concern real property only, are such whereby the plain- tiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee-simple, fee-tail, or for term of life. 3 Bl. Com. 117. 4. Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sus- tained. Ibid. 5. Joint actions are where several persons are equally concerned, and the one cannot bring the action, or cannot be sued without the other. Several actions are where persons are to be severally charged ; as in trespass committed by many, it is several. 6. Action on the case is a general action given for redress of wrongs and in-- juries done, without force, as for not performing a promise made by the defend- ant to the plaintiff, or for speaking words by which the plaintiff is defamed, or for other misdemeanors or deceits. ACTIONS AT LAW. 77 7. Actionsupon an act of Parliament [of Assembly]. — Upon every act of As- sembly made for the remedy of any injury, mischief, or grievance, an action lies by the jparty grieved, either by the express words of the act, or by implication, and such action shall be either by an action for a recompense to the party, in damages, or by vsray of prohibition. . S. Actions qui tarn, sometimes called popular actions, are such as are given by act of parliament, [Assembly,] which imposes a penalty, and creates a for- feiture for the neglect of some duty, or commission of some crime ; to be reco- vered by action or information, at the suit of him who prosecutes, as well in his own name, as in the name of the party to whom a portion of the penalty is made payable. B, Abr. II. 1. No action shall be brought against a justice, or other officer, for any thing done in the execution of his office, unless commenced within six months afteir the act was committed. Purd, 682. Dunl. 102. 2. It is a settled rule, that the cause of action must exist at the commencement of the suit, and cannot be varied by subsequent circumstances. 3 Binn. 38. 3 S. Sr R. 144. 3. An action cannot be maintained against a husband alone, without an express assumption for services rendered to, or money expended for, his wife, dum sola, [while single.] 5 W. 97. 4. An action of trespass, vi et armis, [with force of arms,] will not lie against a plaintiff for suing out a capias, and arresting a freeholder for debt. If it be maliciously sued out, and with a design to oppress the defendant, an action on the case is the proper remedy. 7 TV. 214. 5. In a joint action against two, instituted by capias which was executed as to one, the plaintiff may have an alias capias [another warrant] to bring the other in, and then he may declare against both. 7 W. 448. 6. The suing out the writ is the commencement of the suit, and the cause of action must be antecedent thereto. 1 Cai. 49. 7. 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 ; other- wise, 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 de- mands, 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 those steps, and get back to the plain construction of the act. 2 TV. Sf H. 74. 8. An action cannot be sustained in the courts of a State on any agreement entered into- in violation of the lavirs of the United States, or the lavys of the par- ticular state. 6 Binn. 321. 9. A party cannot, by assigning part of his claim to another, divide an entire cause of action ; nor by any means sustain more than one suit for it, and, if two suits be brought, a recovery in the first is a conclusive bar to the second. 11 iS. 4- R. 78. 10. When a suit is brought "/or use" without specifying the persons for whose use it is brought, it is error in the court, [or justice,] to refuse to compel the counsel for the plaintiff to put the names of the persons for whose use it is brought upon the record, when requested by the defendsuit so to do. 2 P. R. 9. 11. Where a duty, judicial in its nature, is imposed upon a public officer or a mu- nicipal corporation, a private action will not lie for misconduct or delinquency in its performance, even if corrupt motives are charged. 1 JDenio, 595. 12. A claim which is founded upon a transaction which is either malum prohibitum, or malum in se, cannot be enforced by an action of any kind. 1 W. Sf S. 191. 13. A public municipal corporation can only be sued in the county in which it is situated. 5 FT. <^ S. 181. 78 ACTS OF ASSEMBLY, OR STATUTES. ^ttH ot mntmffl^, ot statutes. n. 1, 2, 3- Expositions of statute law, and of the various kinds of statutes. 4 7. Who may pass upon the constitu- tionality of laws. g 21. Of the various kinds of statutes. 82 81. Of the construction of statutes. 32—38. Of the repeal of statutes. 39 — 42. Of statutes generally. 1. 1. Revival of acts in force before the Re- volution. 2. Revival of the common and statute law. 3. All fines and forfeitures to go into the state treasury. 4. Acts which provide remedies to be strict- ly pursued. 5. 6. Acts how to be distributed. 7. County treasurers to take subscribers for the acts. Act of January 28ih, 1777. Purd. 57. Dunl 119. I. Whereas by the unconstitutiond power claimed by the British king and parliament over the American colonies, and the cruel and oppressive measures which the said king and parliament have pursued to establish that power, it became necessary for the colonies to declare themselves free and independent states, which was accordingly done, pursuant to a resolve of the continental congress ; whereupon all authority being m any person under the said king con- sequently ceased, and the laws enacted by his representatives have become of no force or effect, although the same were for the most part suited to the circum- stances of the people ; whereas it is absolutely necessary for the well governing of every state that laws properly adapted to the cir9umstances of the inhabitants be at all times in force. Be it enacted, 1. Sect. II. That each and every one of the laws or acts of general assembly, that were in force and binding on the inhabitants of the said province on the 14th day of May last, shall be in force and binding on the inhabitants of this state, from and after the tenth day of February next, as fully and effectually, to all intents and purposes, as if the said laws, and each of them, had been made or enacted by this general assembly ; and all and every person and persons whom- soever are hereby enjoined and required to yield obedience to the said laws, as the case may require, until the said laws or acts of general assembly, respect- ively, shall be repealed or altered, or until they expire by their own limitation ; and the common law and such of the statute laws of England, as have heretofore been in force in the said province, except as hereafter excepted. 2. Sect. III. Provided always, that so much of every law or act of general assembly of the province aforesaid, as orders the taking or subscribing any oath, affirmation, or declaration of allegiance or fidelity to the king of Great Britain, or his successors, or oath of office ; and so much of every law or act of general assembly aforesaid, as acknowledges any authority in the heirs or devisees of William Penn,^Esq., deceased, the former governor of the said province, or any other person whomsoever as governor ; and so much of every law or act of gene- ral assembly as ascertains the number of members of assembly in any county, the time of election and the qualifications of electors ; and so much of every law or act of assembly aforesaid, as declares, orders, directs, or commands any mat- ter or thing repugnant to, against, or inconsistent with the constitution of this commonwealth, is hereby declared not to be revived, but shall be null and void, and of no force nor effect ; and so much of the statute laws of England aforesaid, relating to felopies, as takes notice of, or relates to treason, or misprision of trea- son, or directs the style of the process in any case whatsoever, shall be, and is hereby declared, of no force or effect. 3. Sect. VIII. All fines and forfeitures granted to the governor of Pennsyl- vania, by the laws by this act put in force, shall and are hereby declared to be for the use of the state, and shall be paid into the state treasury." Act of March 21st, 1806. Purd. 58. Dunl 243. 4. Sect. XIII. In all cases where a remedy is provided, or duty enjoined, or any thing directed to be done by any act or acts of assembly of this common- ACTS OF ASSEMBLY, OR STATUTES. 79 wealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or any thing 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. Act of March 10th, IBn. Purd. 58. Ihinl. 331. 5. Sect. I. Provides, that as soon as the pamphlet-laws shall have been deli- vered into the office of the secretary of the commonwealth, he shall cause to be distributed to the clerk of the Mayor's Court of the city of Philadelphia (Court of Quarter Sessions) twenty copies, one thereof to be delivered to each of the aldermen of said city— to the clerk of the Mayor's Court of the city of Pittsburg seventeen copies, one thereof to be delivered to each of the aldermen of the said city — and to the/prothonotary of the Court of Common Pleas of each county a certain number of copies. 6. Sect. III. Provides that the prothonotaries of the respective counties shall dis- tribute one copy of the said laws to each justice of the peace, sheriff, and deputy-sur- veyor, and to such other persons as are by law entitled to receive them. 7. By resolution of the general assembly of March 4, 1827, Purd. 59, it is pro- vided that any citizen may subscribe for a copy of the laws of the state, half bound, for 50 cents, which shall be furnished him by the treasurer of each county. The county treasurers are authorized by a resolution of April 19, 1835, to advertise that they will receive subscribers. JJunl. 465, 670. By act of February 11, 1851, all laws of a general nature and applicable to the entire state, are to be separately pub- lished in pamphlet form, and distributed as therein provided. Pamph. p. 124. II. 1. Statute law is the express writtenwill of the legislature rendered authen- tic by certain prescribed forms and solemnities. 1 Kent's Com. 446. 3. Statutes are either /)m6/ic or private. A public act is a universal rule, that regards the whole community; and of this the courts of law are bound to take notice judicially and ex o^cio^without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it — private acts are rather exceptions than rules, being those which only operate upon par- ticular persons and private concerns. 1 Bl. Com. 59. ' 3. A penal statute is an act of parliament [or Assembly] which orders or pro- hibits the doing of any thing under a certain penalty. JEsp. on Pen. Stat. 5. 4. It is a principle in the English law, that an act of parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled in any court of justice. 1 Kent's Com. 446. 5. But this principle in the English government, that the parliament is omni- potent, does not prevail in the United States; In this, as in all other countries where there is a written constitution, designatilig the powers and duties of the Jegislature, 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 cohform in the fi+st place to the constitution of the United States, and then to the subordinate constitution of its own state, and if it infringes the provisions of either, it is so far void. Ibid. 448. 6. The judicial department is the proper power in the government to deter- mine whether a statute be or be not constitutional. To contend that the courts of justice 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 into it, and to regard it as the paramount law. Jbid. 449. 7. 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 violation of the constitution, or of any provision of it, null and void. Jbid. 450. S Wheat. 11. 8. 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 charac- ter of the mischiefs of an ex post facto lawi as to all cases of crimes and penal- ties ; and in every other case relatrag to contracts or property, it would be against 80 ACTS OF ASSEMBLY, OR STATUTES. every sound principle. It would come within the reach of the doctrine, that a statute is not to have a retrospective effect. Ibid. 454 — 55. _ 9. 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. AW.Si-S. 218. 10 Barr, 280. 10. If the statute be constitutional in its character, and has duly gone into operation, the next inquiry leads us to a consideration of the established rules of construction by which its sense and operation are to be understood. 1 Kent's Com. 458. 11. For the sure and true interpretation of all statutes, whether penal or bene- ficial, four tfhings are to be considered : what was the common law before the act ; what was the mischief against which the common law did not provide ; what remedy the parliament had provided to cure the defect ; and the true reason of the remedy. It was held to be the duty of the judges to make such a con- struction as should repress the mischief, and advance the remedy, 3 Co. 7. 12. The title to the act, and the preamble to the act, are, strictly speaking, no parts of it. They may serve to show the general scope and purport of the act, and the inducement which led to its enactment, and at times aid in the construc- tion of it — as where the intent is not plain, the title, when taken in connection with other parts, may assist in removing ambiguities. 1 Kent's Com. 460. 13. The intention of the legislature is to be deduced from a view of the whole, . and of every part of a statute, taken and compared together : when the words are not explicit, the intention is to be collected from the occasion and necessity of the law, from the mischief felt, and the remedy in view. Ibid. 461 — 62. • 14. The words of a statute are to be taken in their natural and ordinary signi- fication and import ; and if technical words are used, they are to be taken in a technical sense. Ibid. 462. Bright. R. 106. 15. A saving clause in a statute is to be rejected when it is directly repugnant to the purview or body of the act, and could not stand without rendering the act inconsistent and destructive of itself. Ibid. 462. 16. Several acts in pari materia, and relating to the same subject, are to be taken together, and compared in the construction of them, because they are considered as having one object in view, and as acting upon one system. Ibid. 463. 6 W.Sf S. 269. 17. Statutes are likewise to be construed in reference to the principles of the common law, for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required. Ibid. 463. Bright. R. 106. 18. Statutes that are remedial and not penal, are to receive an equitable inter- pretation, .by which the letter of the act is sometimes restrained, and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy. Ibid. 464. 19. If an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and punished before the act expires — though the offence be committed before the expiration of the act, the party cannot be punished after it has expired, unless a particular provision be made by law for the purpose. Ibid. 465. 1 W. C. C. E. 84. 20. If a statute be repealed, and afterwards the repealing act be repealed, this revives the original act. Ibid. 465. 1 W. S; S. 236. 21. If a statute inflicts a penalty for doing an act, the penalty implies a prohi- bition, and the thing is unlawful, though there be no prohibitory words in the statute. /6id. 465. 22. Construction of Statutes.— Where the intention of the legislature or the law is doubtful, and not clear, the judges ought to interpret the law to be what is most consonant to equity, and least inconvenient. 1 D. 178. 2 Cranch, 358. 23. General expressions in a statute may be restrained, where it clearly appears from the whole law that it was the intention of the legislature to provide a remedy only for particular cases. 3 Binn. 356. 2 Cranch, 33. ACTS OF ASSEMBLY, OR STATUTES. 81 24. The construction given to an act immediately after it has been passed, can- not be altered at a very distant period. 1 D. 136. 25. The word month, in an act of Assembly, has uniformly been construed to mean a calendar month. 4 B. 144. S S. ^ B. 184. 26. A penal statute should be strictly construed. 2 Cow. 419. 27. When a statute enacts an offence and prescribes a remedy, that is the only remedy. 10 W. 384. ,28. A legislative act is to be interpreted according to the intention of the legis- lature apparent upon its face. 2 Peters, 662. Bright. R. 9. 29. Laws are construed liberally to give a remedy or effect an object declared in the law. 1 Bald. 316. 30. Positive and explicit provisions comprebending in terms a. whole class of cases, are not to be restrained by applying to those cases an implication drawn from subsequent words, unless that implication be very clear, necessary, and irre- sistible. 2 Crunch, 23. 31. In i?ea; v. Barlow, (2 Salk. 609,) it is laid down as a general rule, that: where a statute directs the doing of a thing for the sake of justice or the public good, the word moj/ is the same as the word shall— ani in Bakewell's case, (1 Fern. 153,) it was declared that though the words of the act of parliament; authorizing a commission of bankruptcy, were, that the chancellor may grant a commission, yet that may was in effect must. The same rule of construction^ in regard to the words shall or may, has been admitted to be correct by the\ Supreme Court of New York, when used in a. statute, where the public interest and rights are concerned ; but held that it did not extend to a statute, declaring that an individual or individuals shall or may do certain acts, or have a certain remedy, that is intended for his or their benefit. 6 Wheat. 461, 462. See 14 S. fy.R. 429. 1 iHd.AQ. 32. Repeal of Statutes. — No proceedings can be pursued under a repealed statute, though begun before the repeal, unless by a special clause in the repeal- ing act. 4 Yeates, 392. 8 W. 517. 10 Ibid. 351. . 7 Barr, 173. 33. But if from a view of the whale repealing act, it is clear that the legis- - lature intended a continuance of part of the act, such part is not repealed. 3 S.Sf R. 169, 185. 34. An act of Assembly cannot be repealed by non user. 4 Y. 181. Ibid. 215. 35. Unless the object to which it was intended to apply, or the occasion on which it was enacted, no longer exists. 1 Br. Appx. 28. 36. It must be a very strong case to justify the court in deciding that an act . standing unrepealed is obsolete. 13 S. ^ R. 447. 6 jBarr, 385. 37. A subsequent statute reviving the subject-matter of a former one, and evi- dently intended as a substitute for it,. although it contains no express words to ■ that effect, must operate to repeal the former to the extent to which its provisions are revised and supplied. 1 Ash. 179. 38. The expiration of a statute, by its own limitation ipso facto rpvives a stp.- ■ tute which had been supplied by it. 6 Wheat. 294. 39. Of Statutes generally. — Statutes made in Great Britain 6e/bre 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 settle- ment of Pennsylvania have no force here, unless the colonies are particularly named. The common law of England has always been enforced in Pennsyl- vania. 1 D. 67. 2 Binn. 581. 40. The first legislature, under the commonwealth, has clearly fixed the rule - respecting the extension of British statutes, by enacting that " such of the sta- tutes as have been enforced in the late province of Pennsylvania should remain, i ia force, till altered by the legislature. 1 D. 74. : 41. By the charter from .Charles II. to William Penn, the laws of England relating to property were to be the laws of Pennsylvania, until altered by the legislature. 1 D. 287. 42. Until the judiciary has fixed the meaning of a doubtful law,upori which rights ^ have become vested, it may be explained by legislative enactment. 4 W. ^ S. 223. F 82 ADULTERY. ^Xfuittvn- I. Adultery, the sin of, defined. II. Acts of ABserably relating to adultery. III. Judicial decisions. IV. Warrant for adultury. V. A commitment for adultery. VI. A docket entry. 1. Adultery is the sin of incontinence between two married persons, and if but .one of the parties be married, it is nevertheless adultery; but in this last case it is called single adultery, to distinguish it from the other which is double. Cowell, Blount, Bracton. II. 1. " If any married woman, within this province, shall be convicted of having a child born of her body, in the absence of her husband, and shall not be ableby cre- dible evidence to prove that her husband has cohabited, or been in company with her, or has been in some of the queen's colonies, or plantations, in this continent, betwixt (the easternmost parts of New England ?md the southernmost parts of North Carolina, within twelve months next befpre the birth of such child, such woman shall be punished as an adulteress." Act of 1705. Purd. 62. Bunl. 42. 2. The act of Sept. 23, 1791, directs that, " in all cases of conviction for adultery, a fine not exceeding fifty pounds shall be imposedt^and in addition thereto the ofiender shall be imprisoned for any time not exceeding twelve, nor less than three months." ^urd. 63. Dunl. 184. 3. By act of April 25, 1850, prosecutions for adultery must be commenced within 'two years from the commission of the offence, except where the defendant may have absconded or remained absent from the state, in which case such absence shall be .deducted from the period of limitation. Pamph. 575. III. 1. An unmarried defendant cannot be convicted of adultery, although the other ■party should be married. The offence of the defendant is mere fornication. 2 D. 124. 2. On a conviction for adultery, the defendant was sentenced to pay a fine and be .imprisoned at hard labour. The sentence being contrary to the act of Assembly,' the ■judgment was reversed. 2 Binn. 79. s. P. 8 Barr, 223. 3. The solicitation of another to commit adultery is a high misdemeanor, punish- able by indictment. 7 Conn. 267. 4. In an indictment for incestuous adultery, it is unnecessary to charge a common knowledge of the relationship, if the charge of knowing the relationship is made against the party indicted. 11 Ma. 289. 5. In an indictment charging a father with living in adultery with his daughter, his •confessions that she is so are admissible in evidence. Ibid. 6 Penn. L. J. 236. 6. 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. 6 Barr, 337. 7. An indictment for adultery which does not state to whom the defendant is mar- jied is defective. 1 Am. L. J. 315. 8. One who elopes, and lives in adultery, with a married woman, may be convicted of the larceny of her wearing apparel, where he assisted her in carrying it off, and subsequently pledged some of the articles and applied the money to his own purposes. 1 Eng. L. Sf Eq. R. 542. V- COVNTY,sa. IV. Warrant for Adxjltery. aje fflommDixtoenltl) ot 33cnnssl\)anfa, To the Constable of the Township of S— — , in the County of D , greeting : ^WHEREAS, J. L., of H , in the said county, cordwainer, hatli made oath before J. P., one ot our Justices of the Peace, in and for the county aforesaid, that S. B., of S township, in the said county, yeoman, on the nineteenth day of March last past, at H , aforesaid, (being a mar ned man and having a wife in full life,) did commit adultery with a certain R. W. the wife of D. W., of H , aforesaid, labourer ; you are, therefore, hereby commanded to take the said S. U., and bring him before the said J. P., or some other Justice of the Peace of the county, forth- with. Witness the said J. P., at H , aforesaid, the third day of June, in the year of our Lord *ne thousand eight hundred and forty-four. J. p Justice of the Peace. ADVICE. ^3 v. A Commitment for Adultery. D COUNTY, ss. Si)e ffiommontoealt]) of ^ennsslbanfa, To the Constable of H., in the County of D., and to the Keeper of the Common Jail of the said County, greeting: WHEREAS, R. W., the wife of D. W., of H , in the said county, labourer, hath been brought before C. D., one of the Justices of the Peace in, and for, the said county, by virtue of the warrant of J. P., one other of our Justices of the Peace in, and for, the said county, charged with committing adultery with a certain Sj^ , of S township, in the said county, yeoman: These are, therefore, to command you to convey the said R. W., forthwith, to the common jail of the said county, and deliver her to the keeper thereof, who is hereby enjoined to receive the said R. W., and keep her in safe custody, until she find sufficient sureties, as aforesaid, or is otherwise legally discharged. Witness the said C. D— , at S township, aforesaid, the tenth day of June, in the year of our Lord one thousand eight hundred and forty-four. C. D., Justice of the Peace. [seal.] VI. Docket Entry, in Case of Adultery. Commonwealth "^ June 3, 1840, warrant issued, X. Y., constable, on the oath of J. L., vs. i-charging the defendant with having, on the 19th of March last, at H., in G. B. J the county of H., (he being a married man, and his wife living,) com- mitted adultery, with a certain R. W. June 10th, defendant brought up. J. W., sw. ; C. F., sw. Coats. ■^ Bail required, $300, to appear next Court of Quarter Sessions, for the Justice. 75 >county of D. Constable. 60 j J. L., cord wainer, of H. township, bound in $100, to testify at the next Court of Quarter Sessions, &c. G. B., yeoman, of D. township, ") Each tent in $300, that defendant G. L., currier, of T. township, 3 shall appear at the next Court of Quarter Sessions, for the county of D., &c. &c. f ^fXi^^Xtt J how it should he given. A Magistrate is very frequently called upon, by men, women, and minors, 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 diffi- culties, by giving erroneous opinions and advice. He should never give advice upon any agreement, &c. &c., which has been rediiced to writing, without having the writing itself before him. ' If he has reasonable 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 step 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 further from the object of which he is in pursuit. 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 ; alwaj'S' taking care to make drawbacks upon whatever statements may be made under the influence of strong feelings. In relation to disputes and misunderstandings, among families, or former friends, let every possible rneans be taken to effect a good understanding ; let the cup of con- ciliation be drained to the dregs, before any hostile measure be advised, or any process whatever be issued. The justice should carefully guard agamst giving a decided opinion, upon any matter, or thing, which, it is probable, may come before him for decision. Persons making staternents are apt to be biassed by their feelings and interests ; in the statements which they make, they often, insensibly even to themselves, give to the facts a colouring, which so disguises the real state of the case, that the most penetrating eje can scarcely discern what is true from what is false. By the 84 ' AFFRAY. 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 institute a suit, the justice should decline to issue process, and send the party — if determined to sue — to some other justice. If the justice, w-ho has given the opinion, upon which the suit is about. to be instituted, shall yield to the solicita- tions 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 the opinion which had, by misre- presentation, been extorted from the justice. The plaintiff is, in such a case, apt to bedome angry, because the justice has given judgment against him. He never excuses the_/«s<»ce, and blames himself; nor will he admit, that in his statement he had discoloured 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 any thing 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 ac- cessible 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 enabl&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 uninformed how to do himself justice, and put his case, honestly, before the magistrate. AH 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 magistrates, 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, therefore, every justice of the peace, before he gives advice, feel his own responsibility, not mily 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. I. An affi-ay defined. . I HI. Anaffray.warrantandreturn of constable. U. An affray, judioial decisions on. | IV. Docket entry in case of an affray. I. An Affray is the fighting of two or more persons, in some public place, to the terror of his majesty's subjects, [of the people of the commonwealth^ for, if AFFRAY. 85 the fighting be in private, it is no affray, but an assault. 1 Hawk. P. C, c. 6.3. 4 Bl. Com. 107. And there must be a stroke given, or offered, or a weapon drawn, otherwise it is no affray. 3 Inst. 158. II. 1. Affrays maybe suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequences may ensue. But more especially the constable, or other similar officer, however denominated, is bound to keep the peace: and for that purpose may break-open doors. to suppress an affray or apprehend the affrayers; and may either carry them before a justice, or imprison them, by his own authority, for a convenient space, till the heat is over ; and may then, perhaps, also, make them find sureties for the peace. iBl. Com. 107. 2. A justice of the peace cannot without a warrant authorize the arrest of any person for an afiiray 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. 1 Hawk. c. 63, s. 18. 3. 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, without a warrant from a magistrate, restrain any of the offenders, in order to preserve the peace. 3 Johns. 486. 4. The punishment of common affrays is by fine and imprisonment, the measure of which must be regulated by the circumstances of the case ; for where there is any material aggravation the punishment proportionally increases. 4 £1. Com. 107. 5. .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. 1 Hawk. c. 63, s. 33. Bright. R. 46. III. Warrant for an Affray. » D COUNTY, ss. JCDc ffiommontuealt!) of Jlennsslbanis, To the Constable of the Township of D , in the County of D , greeting: WHEREAS, J. L., of the township of D , in the county of D , yeoman, hath, this day, made oath before J, P., one of oui justices of the peace in, and for, the said county, that on the thirtieth day of September last past, R. 8. 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 S. B. : These are, therefore, to command you, forthwith, to apprehend the said R. S. and S. B., and bring them before the said 3, P., or some other justice of the peace of the said county,, forthwith, to answer the premises. 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 forty-four. J. P., Justice of the Peace. [seal.] 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 bailiwick. X. Y., Constable of D township, October 4th, 1844. IV. Docket Entry on a Charge of an Affray. Commonwealth 'J October 3, 1844, warrant issued, X. Y., constable, on the oath of J. L., vs. ^charging the defendant with having been engaged in an affray wherein S. B. 3 deponent was beat. Costs. > October 4, defendant brought up ; J. L., sw. ; C. P., aff. ; G. L., sw. ■ ■ 3^F - - Justice $0 88 V-Bail required from defendant in i Constable 1 10 J J. L., of the township of D., farmer, 7 Each tent in $100, to testify, &c. C. P., C, currier. 5 at thenext Court of Quarter Ses- sions, of the county of D., and not depart the Court without leave, &c. S. B., of the township of G., farmer, 7 Each tent m $200, that the T. O. of , storekeeper. 5 Defendantshall appear at the next Court of Quarter 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. 86 APPEALS FROM MAGISTRATES. 1. The statute of Pennsylvania fixes no limit to the »'^™''" °f Stime"S'n' and a plaintiff after amending his declaration twice may amend it a third time on '"[The'tlten fs'a justice of the peace, has always allowed ^hei^aMff to amend his^laim, and the defendant his set-off, when, in the progress ''^^^^•'^^jZ thought it proper and for their interest so to do If on a second heanng the plainfiffor defendant brings an attorney to the office of the justice and he s 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.J 2. All amendments made either by consent or leave of court [or of the justice] should appear on the record. 1 Dev. Sr Bat. 4. [See act of 1846, ante, p. 72.] .of receiving a license to keep a public inn within this commonwealth. XII. Complaint of an Apprentice. A. B-jJlhe apprentice of C. D., of the county of E., carpenter, personally appears this day. July 5th, 1844, 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 102 APPRENTICES. of getting drunk and profanely swearing)— (or that he has otherwise refiised or neglected to fulfil the covenant of the indenture between them.) IMgnea; a. tt. Before J. B., Justice of the Peace, July 5th, 1844. Any of which complaints being made, the justice should send a notice to the master requiring his attendance at the office of the justice. XIII. Notice to the Master. To C. D., of the County of E . SiH,— Your apprentice A. B. has this day, July 5th, 1844, called at my office in F. town- ship, 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) — i.or that G. H., a journeyman in your employ, is in the habit of kicking and cuffing the said apprentice) — (or that G. H., a journeyman 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 fnlfil the covenants of the indenture between you.) 1 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 time and place 1 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 in- quired into. ' Witness my hand and seal, at F. township, county of E., July 5th,1844. J. R., Justice of the Peace. If such notice is neglected, and the master does not appear, the justice shall thereupon issue his warrant against the person or persons on whom they 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. XIV. Form of a Warrant against a Master. COUNTY OF , sa. Wit Conimontuealt^ at ^ennsslbanfa, 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 fur- ther to be dealt with according to law. And for so doing this shall be your Warrant. WITNESS the said J. R., at E. township, in the 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 forty-four. J. R., Justice of the Peace, [seal.] 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 note, 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 com- plaint arid 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 masters, 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 memoranda 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 : APPRENTICES, IO3 XV. Warrant for an Apprentice. mUNTY OF E , as. EJc ©ommontoealtj ot SPennssltonfa, To any Constable of the said county, greeting: YOU are liereby commanded to take the body of [^ A. B. ] if [ he 1 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 [ 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. WITNESS 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 forty-four. J. R., Justice of the Peace, [seal.]* If it shall become necessary to bind the parties over to the next County Court of €luarter Sessions, recognisances should be taken, and a return made to the court. A copy of the docket entry of the triagistrate will be a proper return to bring the matter under the notice of the court. XVI; Form of the Recognisance to be taken of the Master to answer TO A Complaint made bv his Apprentice. You, C. D., acknowledge yourself 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 E , then and there to answer to a complaint made against you of your having severely beaten your apprentice, A. B., and shall not depart the court without leave, then this recog- nisance shall be void, otherwise to be and remain in full force and virtue. .Sre you content? A recognisance of 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 re- cognisance, give security for his appearance. One party beitig 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. XVII. Form of taking the Recognisance of an Apprentice to give Evidence. You, A. B., acknowledge yourself indebted to the commonwealth, in the sum of $50, to be levied of your goods and chattels, lands and tenement^, 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 E— — , 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 shall be void, otherwise to be and remain in full force. .Sre you content ? A recognisance of the same kind will answer when the master shall be required to be bound over to give evidence. XVIII. Form of a Docket Entry, in case of Master and Apprentice. Commonwealth TJuly 5th, 1844, A. B., the apprentice of C. D., the defendant, personally vs Cappears and makes complaint that his master has severely beaten him C. D. J with a stick of wood. Same day wrote a note to the defendant requiring 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. C. D. of H township, carpenter, bound in $100 for his appear- ance at the next court of Quarter Sessions to answer to the above charge, &c, A. B. and P. Q. his guardian, each bound 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. 104 ARREST FOR DEBT. "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 .u- m.i, j »■ Witness my hand and seal, at F tov^nship, in the county of E— — , this 10th day of August, A. D: 1844. J- B-. ^"8"=^ "^ *•*« P^^™- i-^^^^-^ XIX. Copy op an Assignment op an Indenture to be written on the Back op the Indenture. KNOW ALL MEN by these presents, that I, the within-named A. B., by and with the consent 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 and considerations, have assigned and set over, and do hereby assign and set over, the within in- denture, and the said C. D., the apprentice therein named, unto G. H., his executors, adminis- trafors, 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. AND I, the said C. D., do hereby covenant on my part, with the consent of my father, the said E. F., faithfully to serve the said G. H., as an apprentice, for the residue of the term within men- tioned, and to perform towards him all and singular the covenants within mentioned on my part to be kept and performed. AND I, the said G. H., for myself, my executors, and admi- nistrators, do hereby covenant to perform all and singular the covenants within mentioned on the part of the said A. B., to be kept and performed towards the said apprentice. WITNESS our hands and seals, at , in the county of E , the sixteenth day of August, 1849. Signed, sealed, and delivered, August 16, 1849, before J. R., Justice of the Peace. A. B. CD. E. F. G.H. ^EAL.] "SBAL.X SKAI,:] SEAL.] ;' ^vvtUt for Hefit L Who may be arrested on an execution. II. In what cases a warrant may issue. III. When a plaintiff residing out of the state may have a warrant. IV. Judicial authorities. Act of July I2th, 1842. Purd. 585. Dunl 974. 1. Sect. 23. No execution issued on any judgment rendered by any alderman or justice of the peace, upon any demand arising upon contract, express or im- plied, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unles it shall be proved,by the affidavit of the person in whose favour such execution shall issue, or that of some other person, to the satisfaction of the alderman or justice of the peace, either that such judg- ment was for the recovery of money collected by any public officer, or for official misconduct. II. Sect. 34. No capias or warrant of arrest shall issue against any defendant in any case in which, by the provisions of the preceding section, 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 re- quired as for the issuing of an execution by the provisions of said section. III. Sect. 25. Whenever a plaintiff shall reside out of this commonwealth, he may, upon giving bond, with sufficient surety, for the payment of all costs which he may become liable to pay, in the event of his failing to recover judgment against the defendant, have a capias or warrant of arrest, if he shall be entifled'to such writ, on making the affidavit required in the twenty-third section of this act, or a summons, which may be made returnable not less than two nor more than four days from thedate thereof, which shall be served at least two days before the time of appearance mentioned therein, and if the same shall be returned, per- sonally served, the justice or alderman issuing the same may proceed to hear and determine the case in the manner heretofore allowed by law. IV. 1. An arrest under process (an execution, for example, which should always be made returnable on a day certain) after the time it is made returnable is" 8. trespass, and void. 6 Mass. 22. 2. But an arrest may be made on the return day of the writ. 9 Johns, 117. 3. An arrest (considered here in criminal cases only) is the apprehending or restraining of a man's person in order to be forthcoming to answer an alleged or suspected crime. 4 Bl. Pom. 289. ARSON. 105 4. To this arrest all persons whatsoever are, without distinction, equally ijible/in" all criminal cases. 4 Bl. Com. 289.' 5. A warrant to arrest ought to be under the hand and seal of the justice who makes it out. 2 Hawk. c. 13, s. 21. 6. No warrant shall issue to search any place, or arrest any person, without de- scribing them, as nearly as may be,, nor without probable cause, supported by oath or affirmation. Art. 9, s. 8, Const, of Penns. 7. Since the passage of the act of 1842, the only citil cases in which a justice of the peace can issue a capias, or execution, authorizing the imprisonment of the person of the defendant, are trespass, trover, or where it is proved by affidavit, that the plain- tiff's demand is for the recovery of money collected by a public officer, or for offieial misconduct. 8. Where a plaintiff has an election to bring an action either ex contractu or ex delicto, as in 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. 5 Penn. L. J. 113. 9. But where the action is for a distinct tort, although one deducible from the esistence of a contract, if the plaintiff disaffirms the contract, and proceeds for the fraudulent or tortious conduct of the defendant, in such cases baU may be demanded in the first instance. Therefore, a defendant may be held to bail in an action of deceit Br^ht. R. 197. 10. And where the action is in form ex delicto, after judgment, an execution may issue against the body of the defendant. 2 Penn. L. J. 48. 11. It has been decided in New York that their act to abolish imprisonment for debt does not apply to suits founded in tort, though a contract between the parties is alleged by way of inducement. 7 HiU, 578. Therefore, where there has been a wrongful conversion of goods, the defendant may be held to -Ijail, in New Y ork^ in whatever way the property came intp his possession. Ibid. 182. ^vuon. I. What constitutes Arson. II. Acts of Assembly relating to Arson. III. Not bailable by a justice of the peace. IV. Copy of an information for Arson. V. Warrant against the accused, and return of the Constable. " VI. Commitment of the accused. 1. 1. Arson is the maliciously, voluntarily and actually burning of the house or out-house of another. 4 Bl. Com. 226. 2. If any part of a dwelling-house, however small, be consumed by fire, maliciously and wilfully applied, the ofience of arsdh is complete. 16 Mass. R. 105. 3 Iredell, 570. 3. The burning of a barn with hay and grain in it, is felony and arson at common law. 5 W.Sf S. 385. 4. It is an attempt to commit an arson, if the prisoner persuade another to do it, and give him the materials, he himself not intending to be present. 4 HiU, 133. S., If a building be set on fire which is so near a dwelling-house as to endanger the burning of it, it is arson. 3 Rich. 242. 10 Met. 422. 6. Setting fire to an unfinished boat in a shop, with intent to bum the building, is a misdemeanor at common law. ■ Thacher''s Cr. Cas. 240. 7. A jail is an inhabited dwelling-house within the statute. 18 Johns. 115. 4 Call, 109. 8. Setting fire to ajaiiby a'prisoiter, merely for the purpose of effecting his own escape, and not with an intention to burn it down, is not within the statute. 18 Johns. 115. 5 Iredell, 350. 9. But if the prisoner intends to burn down the building, to effect his main design, which is to escape, he is guilty. 5 Iredell, 350. 10. In an indictment at common law, it is unnecessary to allege that the house burned was a dwell™ ''-house, for the word " house" imports it. 4 Call, 109. 106 ARSON. 11. The burning of one's own property, unaccompanied by an injury to, or by a design to injure, some other person, is not a punishable offence by the common law. 2 Pick. 325. Lewis' Cr.L. 81. 12. 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 at common law. Lewis Cr. i. 79, 82. 2 East, P. C. c. 21, s. 7, p. 1030, Cald. 227. II. Act op Arm^ 23, 1829. Purd. 83. Dunl. 487. Sect. IV. Every person duly convicted of the crime of maliciously and voluntarily burning the dwelling-house, or any other house, barn or stable adjoining thereto, or any barn or out-house having hay or grain therein, although the same shall not be adjoining to such dwelling-house, or of having wilfully and maliciously set fire to any barrack, rick, or stack of hay, grain or bark, with intent to destroy the same, belong- ing to any other person or persons, or of maliciously and voluntarily burning any of the public buildings in the city of Philadelphia, or the public buildings at Harrisburg, or of any of the cities or counties in the state, or any church, meeting-house, or other buildings for public worship, or any college, academy, school-house, or library; orag being accessary thereto ; shall be sentenced to undergo a punishment by solitary con- finement at labour, for a period of not less than one nor more than ten years for the first offence, and not more than fifteen years for the second offence. Jtct of April \&th, 1849. Dunl. 1198. Sect. X. If any person- shall in the night-time wilfully and maliciously bum, or cause to be burned, any dwelling-house, kitchen, smoke-house, shop, barn, stable, store-house, factory, warehouse, office, grist or saw-mill, or any other building or buildings, or pile or piles of boards or other lumber, in any city or other incorporated districts within this commonwealth, every person so offending shall be deemed guilty of arson, and upon conviction thereof, shall suffer imprisonment, at hard labour, in the penitentiary, for any term not more than fifteen years, and shall for ever thereafter be deemed incompetent to be elector, juror, or witness, or to hold any office of honour, trust or profit within this commonwealth. Act of April 25, 1850. Pamph. 575. Sect. XXXIV. If any person shall at any time set fire to, or attempt to set fire to, any of the buildings or other property described in the 10th section of an act passed 16th April, 1849, with intent to bum or destroy the same, or shall advise, assist or procure any person so to do, any person so offending shall be deemed guilty of a misdemeanor, and, on conviction, be sentenced to hard labour in the penitentiary, not more than five years. III. Such as be taken for house-burning, feloniously done, are not bailable by jus- tices of the peace. 2 Inst. 189. 2 Ash. 236. 2 U. S. Law Mag. 316. IV. Information for Arson. B COUNTY, «s. J. L., of the township of B , in the county of L , yeoman, personally came before J. R., one of the justices of the peace in and for the connty of B , 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 L , labourer, that he would do this deponent some mischief, and the said F. W., since the burning of the said barn, hav- ing 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 lire to the said barn. Further saith ""'■ J. L. Sworn and subscribed, February 23d, 1844, before J. R., Justice of the Peace. V. A WARRANT AGAINST THE ACCUSED. B COUNTY, at. €ie ffiommonhiealtj) o{ ^^ennsslbanfa, JjUll"^''??.^'?'')'' of the Township of O , in the County of B , greeting: formation hath been made unto J. R., one of the justices of the peace ASSAULT AND BATTERY. lor «nd for the said county, on oath of J. L ', of the tovrnship of B , in the county of L , 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 setting fire to th? said barn ; you are, therefore, hereby commanded to take the said F. W., and bring him before the said J. R., or some other justice of the peace, of the said county of B , forth^ with, to be dealt with according to law. Witness the said J. R., at the borough of R , in the said county of B , the twenty-third day of February, in the year of our Lord one thousand eight hundred and forty-four. J. R., Justice of the Peace, [seal.] Belurn of Constable. — I have taken the within named F. W , whose body I have ready, as within I am commanded. X. T., Constable. VI. Commitment of the Accused. B COUNTY, ss. ZTIie (SommontDealtl) oC $enns9lbanta, To the Constable of township, in the County ofB , and to the Keeper of the Common Jail of. the said county : WHEREAS, F. W., of O township aforesaid, labourer, hath been brought before K. M., one of the justices of the peace in and for the county aforesaid, upon the warrant of J. R., one other of the justices of the peace in and for the said county, charged on oath of J. L., of the township of B , in the county of L , 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, containing a large quantity of hay and grain, whereby the same was entirely consumed : These are, therefore, to command you to convey the said F. W., forthwith, to the common jail of the said county of B , and deliver hirii to the keeper thereof; who is, hereby, likewise enjoined to receive the said F. W., and keep him in safe and secure custody, until he shall be delivered by due course of law. W^itness the said K. M., at township aforesaid, the twenty- eighth day of February, in the year of our Lord one thousand eight hundred and forty-four. K. M., Justice of the Peace. [seal.] Assault an5f JJattetg* I. What is deemed an assauj- II. What is deemed a battery. ni. Judicial opinions relating to assault and battery. rv. Justices of peace authorized to settle cases of assault. v. Complaint for an assault and battery. VI. A warrant for an assault and battery. Vn. The parties before the justice. I. What is deemed an iifhli'LT. — ^An assault is an attempt or offer with force or violence to do a corporal hurt to another ; as by striking at him with or with- out a weapon, or presenting a gun at hira, at such a distance to which the gun will carry ; or pointing a pitch-fork at him, standing within reach of it ; or by holding up one's fist at him, or by drawing a sword and waiving it in a menacing manner. Bac. Mr. Or by riding a horse so near to one as to endanger his person. 3 Siroh. 137. Or by any such like act done in an angry, threatening manner. 1 Hawk. P. C 110. But it seems agreed, at this day, that no words whatever can amount to an assault. Ibid. 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. 1 S.S( R. 347. II. 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. 1 Hawk. P. C. 110. III. 1. 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 defendajit be found guilty of the battery, it is sufficient. Ibid. 110. 108 ASSAULT AND BATTERY. 2. If a person comes into 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. Neh. Assault. 3. Thus, also, in the exercise of an office, as that of churchvirarden, or beadle, a man may lay hands upon another, to turn him out of the church, and prevent his disturbing the congregation. Ibid. 4. 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. Bae. Mr. So, if a parent, in a reasonable manner, chastise his child, or a school- master his scholar, or a jailer his prisoner, or even a husband his wife for reasion- able and proper causes, 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 offi?rs to kill another, or if a man gently lay his hands on another, and thereby stay him from exciting a dog against a third person, if I beat one (without wounding him, or throwing at him a dangerous weapon) who wrongfully endeavours, with violence, l,p dispossess me of my lands, or the goods of another, delivered lo me, to be kept for him, and who will not Resist 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 ren- dered necessary in self-defence,— in all these cases, it seems the party may justify the assault and battery. Bac. Abr. 5. 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. 1 P. R. 380. 6. 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. 1 Baldw. JR. 600. 7. To present a gun within shootiijg 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. 9 Ma. 79. IV. Act op March nih, isoc. Purd. 683. Sunl. 237. Sect. I. Any justice of the peace before whom a complaint OT charge may be made for an assauk and battery, or for an assault only, either before or after recognisance has been entered for the appearance of the defendant or defendants before the next court of Quarter Sessions, the said justice shall have power, and he is hereby authorized and enjoined, at the mutual request of the complainant or complainants, and the defendant or defendants, in any complaint or charge, as aforesaid, to dismiss the same, making a record thereof in his docket, together with the agreement aforesaid, which agreement shall be signed by the complain- ant or complainants, as well as the defendant or defendants, in such complaint or charge : and for entering of such record, said justice shall receive from the parties twenty-five cents, and no fee shall be demanded of said justice, by any officer of this commonwealth, on account of settling any such dispute or complaint, as aforesaid. Provided, the said justice shall be fully satisfied that the settlement of such complaint or charge will not injure the safety of the citizens, or the peace of society. V. Complaint for an Assault and Battery. M COUNTY, S3. Before me, the subscriber, one of the justices of the peace in and for the county of M , personally came A. B„ of the township of S , in Ihe said dfcunty, yeoman, who, upon his solemn affirmation, according to law, saith: that oii Friday last, beina the fifth day ^,S' "''^1'.^* the township aforesaid, C. D., of the same township, currier, made an -further saith"not'^ affirmant, and then and there, did violently beat and abuse him, and Affirmed and subscribetl. May 8, A. D. 1844, ") before me, J. R., Justice of the Peace. S (Signed) A. B. ' ASSIGNMENT. 109 VL Warrant for an Assault and Battery. M COUNTY, ss. B])t ®atnman\i)ealti) ot ^ennsslbanfa, To the Constable of the Township of S , in the County of M . WHEREAS, complaint hath been made unto J. R., one of the justices of the peace in and for the county of M , upon the solemn affirmation of A. B., of the township afore- said, yeoman, that on Friday last, being the fifth day of May, iftstant, at the township afore- said, G..D., of the same township, currier, made an assault upon him, the said A. B., and then and there did violently heat and abuse him. These are, therefore, to command you to take the said Q. D., and bring him before the said J. R., or some other justice of the peace of the said county, forthwith, to be dealt with according to law. Witness the said J. R., at S. township aforesaid, the eighth day of May, in the year of our Lord one t^iousand ei^ht hundred and forty-four. J. R., Justice of the Peace, [seal.] Return of the Constable. The within named C. D. is now in my custody. T. Y., Constable, May 8, 1844. VII. On hearing', if the defendant admits the truth of the charge, or if the justice shall, ty evidence, be satisfied it is well founded, he is to call upon the defendant to 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 tlie 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 defend- ant 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 proceedings had before him, to the end that such order may be taken on it as the public good shall require. By the foregoing act, passed March 17, 1806, a justice of the peace "before or after recognisance" is authorized to dismiss the complaint, with the consent of the complainant and the defendant, if such dismissal, in the opinion of the justice, " will not injure the safety of the citizen or the peace of society." The justice has no right to dismiss the complaint, after binding over, except "at the mutual request" or by mutual consent of the complainant and defendant. It is, how- ever, his duty, 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, to»endeavonr, to exercise his influence, to do his- best, to induce them to consent .that all further proceedings may be stayed. ' mmsnmmu I. n. Acts touching assignments. I rV. Acts, to prevent preferences!. IH. Resolution to protect labourers, &c. | V. Judicial decisions. I. Act of March Zith, 1818. Purd. 89. Dunl. 341. Sect. V. All assignments in trust for the benefit of creditors must be re- corded in the office for recording of deeds in the county in which the assignor resides, within thirty days after their execution, or they shall be conadered null and void as against any of the creditors 6f the assignor. II. Act of June lith, 1836. Purd. 85. DunL770. Sect. III. The appraisers appointed (by the court of Common Pleas of the county in which the assignor shall reside) or any two of them, having first taken an oath or 110 ASSIGNMENT. affirmation, before. some person having authority to administer oaths, to discharge their duties with fidelity, shall forthwith proceed to make an appraisement of the estates and effects assigned, according to the best of their judgment, and having completed the same, shall return the inventory and appraisement to the court where it shall be filed of record. III. Kesolution pr Jantjakt 21st, 1843. Purd. 89. Dunl 987. From and after the passage of this resolution, it shall not be lawful for any com- pany incorporated by the laws of this commonwealth, and empowered to construct, make, and manage any railroad, canal, or other public internal improvement, while the debts and liabilities, or any part thereof, incurred by the said company to contractors, labourers and workmen, employed in the construction or repair of said improvement, remain unpaid, to execute a general or partial assignment, conveyance, mortgage, or other transfer, of the real or personal estate of the said company, so as to defeat, post- pone, 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 contraetois, labourers, and workmen, creditors as aforesaid. rv. Act op April 17th, 1843. Purd. 90. IJiunl 1005. Sect. I. 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 labour,) shall be held and construed to enure 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 labourers thus preferred shall not severally exceed the sum of fifty dollars. ■ ^ct of April IQth, 1849. Dunl. 1198. Sect. IV. 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 assignmentsjV approved April 17th, 1843, for the payment of the creditors only who shall execute a release, shall be taken as a preference in favour of such creditors and be void, and the assignment be held and construed to enure to the benefit of all the creditors in proportion to their respective demands : Provided, that no bona fide judgment or lien acquired against the property of any debtor, or any sale or transfer of the property of such debtor, unless the same shall have been obtained, acquired, or made with intent to evade the provisions of the said act, shall be avoided or defeated by any subsequent discovery that such debtor was insolvent at the time such judgment was obtained, lien acquired, or transfer made. V. 1 . In Pennsylvania the assignment of an insolvent debtor being his own delibe- rate act, for the recovery of his liberty, and therefore for a valuable consideration, is treated as, what it is in fad — a spontaneous transfer of every interest which he had power to part with. 4 R. 481. 2. An assignment of personal property, which is tainted with either moral or legal fraud, does not pass the property, but it remains in the debtor. Thus if A. receives goods from B. for the purpose of defrauding creditors, and B. afterwards dies, A. may be charged in an action as executor de son tort of B. by any one of his creditors, to the amount of the value of the goods, or his pro rata share of thera. Ibid. 129. 3. Neither the common law, the statute of 13th Eliz. ch. 5, nor the act of 17th April, 1843, prohibited an insolvent from preferring one creditor before another by a confession of judgment. 7 Barr, 449. But since the passage of the act of I6th April, 1849, such preference by a confession of judgment, is fraudulent and void, as against a subsequent assignee for the benefit of creditors. Bright. R. 353. If the debtor knew of his insolvency, at the time. Summer's Appeal, Sup. Court, June, 1851. 4. One who, before suit brought, has bond fide, and for a valuable consideration, assigned his claim to another, cantiot, under any circumstances, be a competent witness in support of the claim. 1 Barr, 364. 2 Barr, 46. ATTACHMENT, DOMESTIC. JU I. What constitutes an assumpsit. | 11. Judicial decisions relating to assumpsit. 1. 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 com- prehends any verbal promise made upon consideration. Termes de la Ley, 58. II. 1. The action of assumpsit lies for the recovery of damages for the breach of a parol contract, under which denomination the law comprehends every agree- ment, not of record, or by specialty, whether it be verbal or written. 3 Johns. Pa. 60. 2. In every action of assumpsit there ought to be a consideration, promise, and breach of promise. Leon, 405. 3. The smallest spark of benefit, or accomm'odation, is sufficient to create a vahd Consideration for a promise. 4 D. 236. 4. In a controversy between A. & B., C. promises to A. if he will submit all differences to referees, that he will well and truly pay to A. whatever the said referees may award him ; assumpsit will lie by A. against C. upon this promise. 4 D. 237. 5. A moral, or equitable obligation, is a sufficient consideration for an assumpsit. 5 Binn. 33. 6. 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 com- municated to the plaintiff, it is sufficient. 1 Earr, 334. 7. A promise, by a third person, to pay a judgment debt, in consideration that the plaintiff would stay execution thereon, is a promise of assumpsit. Cowp. Sep. 128. 8. If a creditor, at the request of his debtor, forbear to sue him for a certain time, that is a sufficient consideration for a new promise, by the debtor, for the non-performance of which an action of assumpsit may be maintained ; so, if a creditor, at the request of J. S., forbea"r to sue bis debtor, for a certain time, that is a sufficient consideration to support a promise by J. S. to pay the debt. Sel- wy^'s N. P. 57. 9. Assumpsit cannot be maintained by a creditor for work done for the state of Pennsylvania against the superintendent ; he is a public officer and accounta- ble only to the commonwealth. 9 W. 27. 10. In an action of assttmpsit to recover the debt of a third person, the proof of the promise must be clear, explicit, and certain, leaving no room for doubt or misappre- hension. 7 PF. ^ S. 429. 11. Where one takes the personal property of another, the owner may waive the tort, and maintain assumpsit for its value. 2 Harris, 395. Mttn^mmt tig S^U0ttcei$ ot tfte peace, COMMONLY CALLED, A DOMESTIC ATTACHMENT, I. The nature and effects of a domestic at- tachment, and when it may issue and be dis- oolved. n. Judicial decisions, s III. Copy of the necessary oath or affirma- tion. IV. Copy of a domestic attachment, and other forms. I. A DOMESTIC ATTACHMENT is SO Called bscause it may issue against persons who are inhabitants, have their domicile, 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, 112 ATTACHMENT, DOMESTIC. 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. Purd. 330. Dunl. 87. 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. 3. It is for the benefit of all the defendant's creditors, and not for the benefit of the plaintifi^ alone. 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. Serg. on Attach. 1, 2, 4, 5, 6. 6. The law on the subject of domestic attachments is founded altogether upon the acts of Assembly, which contain comparatively full and precise directions for their regulation. But few decisions are to be founA-upon their construction. Ibid. 7. II. 1. It is not necessary that the affidavit, to ground a domestic attachment, should aver the defendant's residence. 1 M. 75. 2. Noi: that it should aver that six days have intervened between the time when the defendant is stated to have absconded or secreted himself, and the suing out of the writ, such interval not being necessary by the act of 1807. 3 W. 144. 1 M. 7.5. 3. 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 in the state, or secreted himself with design," &c., is bad, and the writ will be quashed. 1 M. 75. 3 W. 144. 4. The trustees in a domestic attachment are invested only with those rights which existed in the person against whom it issued, immediately before the writ issued out, unless he, before that time, assigned or conveyed- away his estate for the purpose of defrauding his creditors, in which case the trtistees have power, under the 5th sect, of the act of 1807, to recover and li jj ^ B COUNTY, ss. J. D., of the township of S , in the county of D , yeoman, upon his solemn affirma- tion doth declare, that R. R., of the same township, is indehted to him in a sum hot exceeding one hundred dollars, and that the said R. R. has absconded from the place of his usual abode for the space of six days, with design to defraud his creditors, as is believed, and that the said R. R. has not left a clear fee-simple estate in lands and tenements within this state sufficient to pay his debts, so far as the said J. D. knows or believes. (Signed,) J. D. Affirmed, and subscribed, May 1, 1844, before me, J. R., Justice of the Peace. IV. Domestic Attachment. D COUNTY, ss. SJe CommontDcalti) of JSennsglbaiifa, To the Constable of the Township of S ., in the County of D : 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 maybe found within this county, so that he appears before J. R., 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 said J. R. at S township aforesaid, the first day of May, A. D. 1844. J. R., Justice of the Peace. [seal.]. constable's return. Attached one feather bed and bedding, one cow, one barrel of cider, six Tt'indsor chairs, one iron tea-kettle, two iron pots, and one tub. Attached the same in the hands ol David White, oC 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 defendant has no goods and chattels within the county whereby he can be attached." So answers, Sic^. appointment of freeholders. D 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. D. 1844. J. R., Justice of tlte^Peace. [seal.] SUMMONS AGAINST THE GARNISHEE. Jt) COUNTY, ss, Siie ffiommantDealtl) of ^ennsslbania. To the Constable of the Township of, S , in the County of D , greeting : WHEREAS, 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 town- ship, by all and singular his goods and chattels, or other effects, in whose hands or posses- sion 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 attach- • ment, 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 township afore- - said, according to a schedule of the same goods and effects annexed to the said attachment. _ These are, therefore, to command you to summon the said D. W. to appear before the said i 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 shpuld 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. D. 1844. J. R., Justice of the Peace. [seal.] " Served personally on the within named D. W." L, M., Constable. 114 ATTACHMENT, DOMESTlG. NOTICE TO THE CKEDITOKS. WHEREAS, in pursuance of an Act of General Assembly of the commonwealth of Pennsylvania, an attachment hath been granted by the subscriber, one of the justices of the peace in and for the said county of D >, at the instance of a certain J. D., of S township, in the county of D , 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. C, 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, 1844, at the house of W. M., of the township aforesaid, innkeeper, then and there to discover and make proof of their demands agreeably to the directions of the said act. J. R., Justice of the Peace. £seal,] ORDER TO FREEHOLDERS TO SELL PERISHABLE COODS. M COUNTY, ss. To R. S. and D. C, of S township, greeting : WHEREAS, among other articles attached as the property of R. R. late of S town- ship, in the county of D . , and now remaining in your custody, until further orders, there are one cow cmd a barrel of cider, the former of which must necessarily be maintained 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. D. 1844. J. R., Justice of the Peace. [seal.] 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 D , cordwainer, by virtue of the warrant of J. R., Esq.,^ one of the justices of the peace in and for the county of D , viz. : -One feather bed and bedding, valued at - $30 00 One brindled cow -.....--.-- 25 00 Six Windsor chairs - 300 One iron tea-kettle .......... 100 Two iron pots ........... 140 One tub 50 •One barrel of cider 2 00 June 1, A. D. 1844. Appraised by us, J. G. and T. B., Sworn Appraisers. GENERAL ORDER TO FREEHOLDERS TO SELL. D COUNTY, ss. To R. S. and D. C, of S tovraiship, greeting: WHEREAS, three months are expired since the goods, chattels and effects of E. 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. R.'s estate arising, reasonable charges first deducted, you are to make payment to the cre- ^litors of the said R. R. who shall have appeared and made proof of their debts 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 with- in 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. D. 1844. J. E. Justice of the Peace, [seal.] ADVERTISEMENT OF SALE. PUBLIC NOTICE is hereby given, thatbyvirtue of an order from J. R., one of the jus- tices of the peace in and for the county of D., 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. M., inn- keeper, 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 of sale made known, by ATTACHMENT. 115 flttStCflWlPtlt against absent and fraudulent Debtors. I. When attachment may issue, and proceed- mgs thereon. II. Judicial decisions, III. Plaintiff's affidavit. IV. Form of plaintiff's bond. V. Form of attachment. VI. Forthcoming bond. VII. Affidavit to open judgment. VIII. Notice of re-hearing. IX. Form of docket entry. I. Act op July 12<7t, 1842. Purd.^ 586. Bunl. 975. Sect. XXVI. Whenever 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 attachnaent, 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. Sect. XXVII. It shall be the duty of any alderman or justice of the peace to issue an attachment 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 defendjint is about to remove from the county any of his property 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 fraudulent intent, (1) 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 : Pr'ovided, That 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 securities, (2) 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 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 the said attachment. Sect. XXVIII. 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 bylaw from sale upon execution, (3) 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. Sect. XXIX. 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 claim, conditioned that in the event of the plaintiff recovering judgment against him, (1) 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, vpith the intent mentioned in the act, are set forth in the aUermaive, the affidavit will be insufficient. 3 Penn. L. J. 307. 1 M. 75. 3 W. 144. (2) 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 responsible, will not satisfy the requirements of the law. 4 R. 382. (3) An attachment under this act, unlike an attachment in execution, can only be levied on per- sonal chattels, which can be taken into the manual custody of the constable, and not upon debts due the defendant, or rights in action. 116 ATTACHMENT. 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 oflScer ha-ving an execution against him on any such attachment. Sect. XXX. If such attachment shall be returned personally served upon the defendant, at least two days before the return day thereof, the aJderman or justice 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 shall issue a summons against the defendant, return- able 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 residence 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. Sect. XXXI. 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 facte, 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. Sect. XXXII. 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 indebtedness, in any scire facias that may be brought thereon, and may be dis- proved 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 plaintiff. , Sect. XXXIV. This act shall not be construed to extend the jurisdiction of jus- tices 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 twentieth day of March, one thou- sand eight hundred and ten, 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 ftdt force, and to apply to the provisions of this act, so far as the same relates to proceed- ings before aldermen or justices of the peace, and to the powers of the courts of record over the proceedings of justices of the peace. ^t of March 22, 1850. Pamph. 233. Sect. I. 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 twelfth day of July, Anno Domini one thousand eight hundred and forty-two, shall remain and continue a lien on the property attached for a longer period than t 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, U> levy upon stock, debts, and deposits of money belonging or due to the defendant, in satisfaction of such judgment. Sect. III. The said writ of attachment maybe issued, returnable not less than four, nor more than eight days, and shall be served, in the manner pointed out for the ser- vice 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 efiects of the defendant alleged to be in his hands at the lime of the service of said writ ; a copy of the same, with a rule to an- swer, shall be served upon said garnishee personally, to answer, under oath or affirma- tion, all such interrogatories as the magistrate shall deem proper and pertinent, within eight days after the same shall be served. Sect. IV. 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 de- mand of the said plaintiff; and judgment may be rendered by default against said gar- nishee for the amount of the same, with costs. Sect. V. If the said garnishee, in his answers, admit that there is in his possession or control, property of the defendant liable under said act to attachment, then said magistral^ 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 labourer, or the salary of any person* in public or private employment, shall not be liable to attachment in the hands of the employer. Sect. VI. The plaintiff, the defendant, or the garnishee in the attachment, may ap- peal 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 ap- peals 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 simi- lar services in other cases. Act of April lOlh, 1849. Dunl 1189. Sect. XI. The 10th section of the act of 13lh of April, Anno Domini 1843, entitled "An act to convey certain real estate, and for other purposes," (providing that all lega- cies 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 attacli legacies and pro- perty 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 a2d section of the act of ,16th of June, Anno Domini 1836, entitled "An act relative to executions,") 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 rtiay have in the real or per- sonal estate of any decedent, shall have accrued by reason of the death of such dece- dent : Provided, that a sale of the aforesaid interest of the defendant in the proceeding by attachment, authorized by the aforesaid 10th section of [the act oi\ 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 124 ATTACHMENT IN EXECUTION. account: in all cases when executors, administrators or trustees of the estates of dece- dents shall have been made garnishees in the process in the nature of attachment au- thorized 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. II. What may be Attached in Execution. 1. Debts in suit, and unsatisfied judgments, are liable to attachment in execution, under the act of 1836. 2 M. 130. 1 Barr, 380. 2 D. 277. 2. A loss incurred on a fire-insurance policy, the amount of which is fixed by the award of persons mutually chosen by the insured and insurer, may be levied on by attachment in execution, as a debt due to the insured. T W. S^ S. 76. 3. A note deposited in pawn may be attached as a debt, under an attachment in execution against the owner. 2 Barr, 39. 4. Money in the hands of an attorney at law may be levied' on by attachment in execution against his client. 2 Barr, 346. 1 Harris, 307. 5. The proceeds of property in the hands of an assignee, for the benefit of creditors, under a void assignment, are liable to an attachment in execution, against the assignor. 5 W.Sf 8. 103. 5 Barr, 39. 1 Harris, 306. 6. Where the defendant 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 court held, that the proceeds were liable to an attachment in execution, in the hands of the sherifl: 4 Penn. L. J. 239. 7. Where a check on a batik was not presented 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 postponed. 2 M. 327. 8. 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 attached for the debt of the drawer. 8 W. 6f S. 9*. 9. When a note has been assigned and transferred lonafide, in payment of a debt, • before the service of an attachment in execution, the assignee is entitled to the money, and not the attaching creditor. 1 Barr, 263. 10. An annuity directed to be paid by a will, but not actually due and payable, is not bound by an attachment. 2 M. 412. 1 1 . An attachment in execution only reaches debts due at the time of its service, and not those which may become due subsequently. 2 M. 352. 1 2. If an attorney recover money for his client, and deliver it over to another per- son to take to his client, it may be attached by a creditor of the client in the hands of the person to whom it has been delivered, and he is liable as garnishee. Serg. on M. 98. 13. Where one had contracted to excavate and grade a street at a certain rate^jer cubic yard, and used two carts, and two or three horses, in the prosecution of the work, with a number of men, sufficient, with himself, to keep the carts and horses employed ; the money due under the contract is liable to an attachment in execution, under the act of 15th April, 1845. 5 Barr, 115. 14. A debt due to an administrator, who is himself sole distributee, is not subject to attachment for Kis private dfebt, until the settlement of his administration account. 7 Barr, 482. 15. A debt of a testator, for which the executor, who is also residuary legatee, had taken a note in his own name, may be attached by process of execution against the executor, for the payment of his own debt, it appearing that a number of years had elapsed since the death of the testator, and that there was abundance of estate beside 10 pay all debts and legacies. 7 FT. 4" S. 376. 16. Money levied by a sheriff, or constable, upon an execution, and either actually, or potentially, in his hands, cannot be attached under the act of 1836. 2 W. S;. S. 400. 2 Pern. L. J. 199. 3 Penn. L. J. 62. 1 Harris, 307. 17. A justice of the peace cannot be made garnishee in an attachment, in respect of moneys received on judgments rendered by him. i W. 8f S. 342. 18. Money in the hands of a prothonotary cannot be attached in execution. 1 B. 354, ATTACHMENT IN EXECUTION. 125 19. Where a constable sells a defendant's goods under a distress for rent, the surplus in his hands cannot be attached by a judgment creditor. Comfort v. Taylor, Commm Pleas, Phila., March T. 1848. 20. Money in the hands of the debtor of a decedent, is not the subject of an at- tachment in execution, on a judgment recovered against the administrator. 6 Perm L. J. 192. 2 D. 73, 97. 21. Fees due to a juror are not the subject of an attachment in execution, under the act of 1836. 4 Perm. L. J. 226. 22. The salary of an inspector of the customs cannot be attached in the hands of the collector of the port. 2 M. 330. 23. Money held by a person in his official capacity, as treasurer of -the board of school directors, in common with other money, to be applied towards the payment of teachers, according to the rules and regulations of the acts of Assembly for the maintenance of public schools, and not as a private debt due from him to the defen- dant, cannot be attached under the act of 1836. 3 Barr, 368. 24. Money received by the supervisor of a state canal and railroad, to pay persons employed thereon, is not subject to an attachment in execution, for the debt of the employee. 2 Perm. L. J". 201. 25. 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, are made liable to attachment in execution, by act of 13th April, 1843. Purd. 463. Dunl. 1004. 26. A testator directed his executors, after the death of his widow, to sell his real estate, and divide the proceeds equally among his children : held, that the share of one of the children was liable to attachment jn the hands of the purchaser, under a sale made by the administrator with the will annexed, he having filed an account prior to the sale, showing a balance in favour of the estate. 1 Jones, 361. 27. The capital stock of a bank, owned by itself, and in its own possession, whether acquired by purchase or otherwise, is not subject to attachment in execution, for a debt due by the bank. 10 W. 230. 28. 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. 1 Harris, 223. 29. Damages recovered in the joint names of husband and wife, for an injury to the person of the wife during coverture, are not liable to be attached for the debt of the husband. 4 Perm. L. J. 406. 30. A bequest to a wife cannot be attached by a creditor of the husband. 2 W. v90. 1 Wh. 179. Purd. 525. Dunl. 981. 31. An attachment in execution cannot be issued on a judgngient against a municipal corporation. 4 Barr, 490. Purd. 464. Dunl. 1036. 32. A partnership debt may be attached in the hands of the garnishee, for the pri- vate 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. 2 D. 277. 2 Y. 190. 83. Where 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; held, that the attaching creditor was entitled to the fund, to the exclusion of the holder of the bills. ' 2 Penn. L. J. 363. 34. A promissory note, after it is due, may be attached, and payment compelled from the maker, by a creditor of the holder. Wetmore v. Price, Dist. Court, Phila., March T. 1848. 35. After the honafiie assignment of a judgment, it is not liable to be attached for the debt of the assignee. Bavington'v. Mcocfc, Dist. Court, Phila., Dec. T. 1848. 36. Where a lot was conveyed to a husband and wife, and the heirs and assigns of the wife, and the husband erected a dwelling-house thereon, with a party wall between their lot and that of the adjoining owner, and the latter subsequently used the party wall so built ; the moiety of the cost thereof became a debt due the husband, and liable to an attachment in execution, at the suit of his creditor. 9 Barr, 501. III. Proceedings on Attachment in Execution. 1. An attachment in execution, to levy stock of the defendant, which stands in the 126 ATTACHMENT IN EXECUTION. name of another person, is rightly instituted in the county where the garnishee resides. T W.Sf S. 433. 2. A writ of attachment in execution may issue after the year and day has expured from the rendition of the judgment. 7 JV. Sf S. 444. 3. An attachment in execution may issue on a judgment recovered more than five years before, without a scire facias: in the attachment, the defendant has a day in court, in which he can take any defence he could have made on a scire facias. 4 Barr, 232. 5 Barr, 115. 4. An attachment in execution may issue on a judgment recovered prior to the act of 1836, giving this remedy. 7 Barr, 482. 5. 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 commands the she- riff [or constable] to attach " the goods and chattels, rights, credits, and moneys," of the defendant, in the hands of the garnishee. 6 Wh. 181. 6. 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. 4 Penn. L.J. 113. 7. 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. 4 Penn. L. J. 87. 8. Though the issuing of an attachment, before an execution has been returned " no goods," is irregular ; yet, if the garnishee appears and takes defence, he cannot, after a trial on the merits, object to the irregularity of the process. 4 Penn. L. J. 473. 9. If the garnishee in an attachment iri 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 debt, &.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 defendant, of the sum so attached and levied, &c. 6 Wh. 181. 10. A judgment for the garnishee in an attachment in execution, on his answer., is improper ; the court [or justice] can do no more than refuse judgment for the plaintiff 7 Barr, 231. 11. A garnishee in an attachment in execution, who, to interrogatories of the plain- tiff, 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. 1 Barr, 213. 12. The garnishee is not liable to the plaintiff for costs, beyond the amount at- tached 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. 2 X>. 113. 5 S. Sf R. 446. Brightly on Costs, 191. 13. By the provisions of the act of 1705, 1 Sm. L. 46, relating to foreign attach- ments, the garnishee was to be allowed, out of the effects attached, a reasonable satis- faction 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 pre- paring his answers, and attending to his interests in the suit. 13 jS. SfR.226. 2 M. 75. But this section of the act of 1705 having been supplied by the act of 16th June, 1836, {Purd. 524, Dunl. 741,) which contains no such provision, this allow- ance is no longer to be made, (9 Barr, 468,) except where executors, administrators, or trustees of the estates of decedents, are made garnishees, who, by act of 10th April, 1849, (^Dunl. 1189,) are to be allowed their costs and expenses necessarily incurred by them in attending to the proceeding in which they may have been garnishees. 14. The legal effect of an attachment laid upon a debt is, to restrain the garnishee from paying over the money, either to his individual creditor, or to the attaching cre- ditor, until the attachment is disposed of, and then only according to the result of that proceeding. 3 Barr, 109. ATTACHMENT IN EXECUTION. 127 15. 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. 4 Barr, 248. 16. An attachment in execution of the debt, may be pleaded in abatement of a suit, by the creditor against the original debtor. 2 M. 439. But, in a late case, Mr. Jus- tice Bell said, — " The attachment execution, given by our statute, should, I think, be pleaded by a garnishee in bar ; for the foundation of it is a judgment which concludes the rights of those who are parties to it, and nothing remains to be done as against the original defendant but to make it available." 1 Harris, 82. 17. If the garnishee in an attachment in execution appear and plead, that he has no effects in his hands belonging to the defendant, the latter is a competent witness for the garnishee, upon the trial; for they have contrary interests. 2 Barr, 310. 18. 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. Minhin- nick V. Long, Com. Pleas, Phila., Bee. T. 1847. 19. The defendant in an attachment in execution is a competent witness for the garnishee, because he is swearing against his own interest ; but he is not a competent witness for the plaintiff a^ams< the garnishee. Farmers' and Mechanics' Bank v. Williams, Disl. Court, Phila., March 24:, 1849. 20. 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 sec- tion, 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. Lamb v. Vansciver, Hist. Court, Phila., Dec. 1849. 21. 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, fieri facias essentially 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. 1 Harris, 394. 22. 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. 1 Harris, 552. 23. Where a debt is attached after it has been assigned, the garnishees may give notice of the attachment to the assignee, who must then come in and defend for his interest, or be forever barred. Willock v. JVeel, Bisi. Court, Mlegheny, Becember, 1850. 24. The law exempting property, to the amount of three hundred dollars, from execution, does not apply to cases of attachment in execution. * Vesia v. Viench, Bist. Court, Phila., March 22, 1851. 25. Where a judgment debt has been attached, the court will stay proceedings until the determination of the attachment suit. Paxson v. Sanderson, Bist. Court, Phila., March 22, 1851. 26. In an attachment in execution, several garnishees were summoned, and sepa- rate issues taken by each, and determined, some in favour of the garnishees, and others in favour of the attaching creditor : held, that the issue against each garnishee is in the nature of a separate suit, and that the garnishees are entitled to recover full costs on the issues determined in their favour. Magruder v. Adams, Bist. Court, Phila., February 2, 1850. IV. Attachment to levy Debts. COUNTY OF P , ss. Ejie ©ommontoealt!) of Sennsslbanta, To the constable of E township, or to the next constable oi me 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 thepeace in and for the said 128 ATTACHMENT IN EXECUTION. county, on the 28th day of June, A. D. 1848, at four o'clock in the afternoon, to answer A. B. And also, that you make known to E. F., that he he and appear before our said justice^ on and at the same day and hour, to show if any thing 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. D. 1848, 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. D, 1848. J, B., Justice of the Peace, [seal.] This attachment must be served on the garnishee in the same manner as a summons, 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 31st day of June, 1848, by leaving a copy of the said attachment at their respective dwelling-houses, in the presence of one of their families respectively. S. S., Constable. In the case of attachment of stock, if held in another name than that of the real owner, the plaintiiF shall (before suing out the above writ) file in the office of the magistrate an affidavit, and enter into recognizance in the following form, viz.- V. Affidavit. E. F.y vs. >I A. B.3 L COUNTY, ss. BEFORE ME, one of the justices of the peace in and for the county of L — —, personally 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 P , but which said shares the said deponent verily believes are really the property of the above named A. B. And further saith not E, F, Sworn and subscribed before me, this lOth day of May, A. D. 1847. L. M., Justice of the Peace. ^VI. Recognizance. Debt not exceebiiio $100. L COUNTY, as. WE, E. F., the plaintiff above named, G. H. 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, respect- ively, to the use of the said A. B., his executors, administrators or assigns. The condition of this recognizance is such, that whereas the said E. F. is about to sue out a writ of attach- ment 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 P , 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 E. 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 recognizance to be void, otherwise to be and remain in full force and virtue. Taken and acknowledged before me, this 10th day of May, A. D. 1847. L. M., Justice of the Peace. Where stock is attached which belongs to another person than the defendant, the owner may he 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 recognizance with two sureties, conditioned ior 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 recognizance can be readily altered to meet such a case. ' VIL Interrogatories to Garnishee. A. B. T Before Justice J. R. ."«■ 5. Attachment in Execution. E. F., Garnishee of C, D. 3 Interrogatories to be answered by garnishee, filed June 20, 1848. First.— Do you know C. D., of whom , ^^ ^_t'' ATTACHMENT IN EXECUTION. 129 Second. — ^Have you had commercial or other transactions with the said C. D. ? If yea, vhat 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 favour of the said CD. at the time of the service of the said writ of attachment upon you t If yea, state the amount particularly. Fourth. — Had you in your possession any goods, merchandize, 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 i If yea, state the amount of said money, and the nature of the rights and credits, and the nature and quantity of said goods, merchandize or effects. A. B. VIII. Rule on Garnishee to answer. ^' ^" ^Before Justice J. R. E. F., Garnishee of C. i>. 5 Attachment in Execution. And now, June Sflth, 1848, 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, [seat..] SIR, Take notice that tlie 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 b^ entered against you by default, for the amount of the plaintiff's claim. J. R., Justice of the Peace. To Mr. E. F., garnishee. The act of assembly requires that the copy of the interrogatories and rule to answer should be served on , the garnishee pefsonally. If, on the return-day of the attach- ment, 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 application of the plaintiff, should continue over the cause, until such time as will be sufficient to effect the service required by law. IX. Answers of G4ftiNisAE. tNisAi f Before Justice J. R. ^K E. F., Garnishee of C. D.5A"ach,j(ient in Execution.' E. F., the garnishee above named, being duly sworn, [or affirmed,] saith, in answer to the interrogatories filed by the plaintiff in this case : 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 $30 in my hands, in favour of the said C. D., at the time of the service of the writ of at- tachment. Fourth. — At the time of the service of the writ of attachment, I had not in my possession, any goods, merchandize, 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 interrogatory. E. F. Sworn [or affirmed] and subscribed before me, this 30th day of June, 1848, J. R., Justice of the Peace. X. Execution against Garnishee. COUNTY, s». W^e ffionnnantDealtfi of ^ennssl^anfa, To the Constable of E— ^ township, or to the next Constable of the said County most- convenient to the defendant, greeting : WHEREAS, A. B., on the second day of July, 1848, before J. R., esquire, one of our jus- - tices 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, lights, and credits of the said C. D., attached in the hands of the said E. F. ; and if the said E. F. refuse or neglect, on demand, to pay the same, then that you levy the said sum of A.B. VB. E. F., Garnishee of C. D. 130 ATTACHMENT FOR A WITNESS. twenty dollars of the proper goods and chattelsof the said E- F- ?« >» the ea^e "^ a i"^!"^! against him for his own proper debt; and endorse hereon, the time y°" '"^^.^j^^^^^^y'/"^ , hereon, or on a schedule to be hereto annexed, a list of *«/,7,^ '/bavins sWerduTnotice from the date hereof expose the same to sale, bypablic ''^''^^irXu^'^^iX^nT township thpreof bv three or more advertisements put up m the most public places in your townsnip , A. D. 1d4o. ' XI. Docket Entet. Attachment in Execution issued June 20, 1848, returnable the 28th Inst, at 4 o'clock, P. M., on judgment obtawed before me by the said A. B., against the said C. D., on thq. 1st May, 1848, for $30, and costs. S. S., constable. Same day, plff. files interroga- tories, and rule entered on garnishee to answer in eight days, or iudsnient. Returned on oath, "Served attachment on deft and garnishee, and served copy of interrogatories and rule to answer, on garnishee, personally, on' 21st inst." June 28, 1848, plff ap- pears, and claims to have execution of his judgment on the effects of the deft, in the hands of the garnishee. Deft, does not appear. Garnishee appears, and files hjs answers, admitting that he is in- debted to the deft, in the sum of $20, whari-nDon ludgment that the plff have execution of thesaiddebt,of $2M"eJbstoegar- fiiiK55"torthriiefi;TaB*TrttedTeff3^ ; and if the said gar- nMeTfefuselorne^feCtronTIeniiS^ constable, to pay the same, then the same to ibe 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 2, 1848, Execution issued against garnishee. S. S., constable. Ketiimcd July 5, 1848, " Money paid into office." Received $17.31| cents, amount afflsbt attached, less costs of attachment suit % (Signed,) A. B. COSTS. Jvatfce, ^Attachment •Bnteiing action .',!Ket. and oath of const. . Rnle ilHterrogatoriea ilet. of rule . . a^roof of service of rule (loath) . . . . Aiiswers/l oath) .Search (produc. orig. rec.) Trial and judgment . Execution aieturn . . . • '.Satisfaction Canstailf. ■ Serving att. on garnishee Mileage -.Serving alt. on deft. , Mileage . •ir^rving notice of rule Mileage rServing ex'n. . •Oom's. Mileage 18J 6 10 6 10 6 IS* S2.68t nt9i-osJ /. V ' J mtntt^mtnt fot a Witntm, When, and how, it should issue. It being proved that a subpoena requiring the attendance of a witness in a case ibefore the justice, has been legally and personally served on the witness and the party who subpoenaed him, requiring his attendance, and to enforce it requiring an attachment, it becomes the duty of the justice to fill up an attachment and place it in the hands of the constable to serve. The following is the form of aa attach- ment to enforce the attendance of the witness. COUNTY OF PHILADELPHU, ss. W^t (Eommonbief-ilti) at JPennsslbanCn, To M. G., Constable of said County, greeting: We command you, that you attach M. R., of P. township in the said county, tanner, if he be found in your bailiwick, and him safely keep, so that you have his body before the subscriber, one of our justices of the peace in and for the said county, at his office, at No, 340 South Fifth street, on the lOth of October, 1844, aforesaid, to answer us of a certain contempt by him done, in refusing to appear before our said justice, at his office, then and there to testify his knowledge in a certain action depending before our said justice, 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. ATTOBNEY, LETTERS OF, &e. 131 Witness the said justice of the peace, at Philadelphia aforesaid, this the eighth day of October, in the year of our Lord one thousand eight hundred and forty-four. G. W., Justice of tlie Peace, [seal.] 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 not in his power to attend at the time he was required. Under such circumstances the costs must abide the issue of the suit. If he shall attend and 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 justice G-. W., at his office in P. township, in the county 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 confined until he does answer. 2 Rep. Con. Ct 167. 4 Penn. L. J. 130. An alderman appointed under a rule of a court of record to take depositions, is em- powered to imprison a witness who contumaciously refuses to be sworn in order to testify in the cause. 4 Penn. L. J. 126. But although the alderman, in such case, has power to attach or commit, it seems, tlje more proper course is, to make a special return of the matter to the court from which the rule issued, when the witness may be subpoenaed to appear at the bar of the court and answer or be attached. Field v. Elmes, Disl. Court, Phila., March 24, 1848. 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, Bogers, J., refused to discharge the witness, on habeas corpus, and remanded him until he should answer the question propounded. Bright. R. 109. "^f^t I. Letters of attorney, how proved.] I V. What constitutes an attorney at law. II. For the sale of lands regulated. I VI. Hovi^they shall be admitted and qualified. III. Of the revocation of such powers. { VII. Judicial decisions. IV. Trustees, &c., may convey by attorney. | I. Act of 1705. Purd. 94. Dunl 58. Sect. II. All and every bonds, specialties, letters of attorney, and other powers in writing, which shall be produced in any court, or before any magistrate in this pro- vince, the execution whereof being proved by two or more of the witnesses thereunto, before any mayor, or chief magistrate, or officer of the cities, towns, or places, where such bonds, letters of attorney, or other writings, are, or shall be, made, or executed, and accordingly certified, under the common or public seal of the cities, towns, or places, where the said bonds, letters of attorney, or other writings are so proved, respectively, shall be taken, and adjudged as sufficient in law, as if the witnesses therein named had been present, and such certification shall be sufficient evidence to the court and jury for the proof thereof. II. Sect. III. All sales or conveyances of lands, tenements, or hereditaments, which shall hereafter be made, by virtue of any letters, or powers of attorney, or agency, duly executed, which do, or shall, expressly give power to sell lands, or other estates, and shall be properly certified, shall be good and efiectual in law, as if the said constituent or constituents had by their own deeds actually sold and conveyed the same. III. Sect. IV. Provided always, that no sale of lands, tenements, and heredita- ments, made by virtue of such power or powers of attorney, or agency, as aforesaid, shall be good and efiectual, unless such sale be made and executed while such power is in force ; and all such powers shall be accounted, deemed, and taken to be in force, until the attorney or agent shall have due notice of a countermand, revocation, or death of the constituent. 132 ATTORNEY, LETTERS OF, &c. Note.— "Ever since the act of Assembly of 1705, a practice having obtained of au- thenticating letters of attorney, by the eonstitverU's acknowledging the -same before any mayor, chief magistrate, &c., without their being proved by the witnesses as directed by the act, it would be productive of extremely mischievous consequences, if letters of attorney, so authenticated by acknowledgments, merely, should be refused in evidence. The letter of attorney, accordingly so authenticated, must be admitted in evidence." Per Washington and Peters, JJ,, Circuit Court of the United States, April, 1817, Milligan's Lessee us. Dixon — this was the only point in the cause, the record having been transmit- ted from the Supreme Court of the United States for the sole purpose of trying whether or not this was a proper authentication. 1 Peters' C. C. 433, in notes. 1 Harris, 292.. IV. Act of Makch 14, 1850. PatAph. 195. Sect. I. Any trastee, executor, or other person acting in a fiduciary character, with power to convey lands or tenements in Pennsylvania, may make conveyances, under such power, by or through an attorney or attorneys duly constituted, and such convey- ance shall be of the same validity as if executed personally by the constituent ; and all conveyances so heretofore bond fide made by such trustees, are hereby confirmed : Provided, that nothing herein contained shall authorize any person so acting in a fiduciary character, to delegate to others the discretion vested in himself for the gene- ral management of the trust. V. 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. 3 Bl. Com. 35. VL Act of Uth April, 1834. Purd. 95. Dunl. 619. Sect. LXVIII. The judges of the several courts of record of this common wealth shall, respectively, have power to admit a competent number of persons, oi an honest disposition, and learn^^n the law, to practise as attorneys in their re spective courts. ^^^^ Sect. LXIX. Before any ^^K^M admitted as aforesaid, shall make any plea at the bar, except in his own Hflpe shall take an oath, or affirmation, as follows, viz. : ^^^ « Yoa do swear, or affirm, ths* you will support- the constitution of the United States, and the constitution of*this commonwealth, and that you will behave your- self in the office of attorney, within this court, according to the best of your learn- ing 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." yil. 1. A warrant of attorney is an authority and power given by a client to his attorney, to appear and plead for him. A rule to file a warrant of attorney must be moved for, before plea pleaded. 2 D. 142. 5 W. 423. 2. 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 judg- ment upon which executions were issued, lands levied and sold, is also void, and will be reversed, and restitution of the money made by the sherifi''s sale awarded. 6 W. 294. 3. An attorney's agreement to refer a cause binds his client. 1 D. 164. 4. The attorney in the suit is a competent witness, although his fee is to depend on the verdict : the objection goes to his credit. 1 S. ^ E. 32. 5. Members of the bar are not entitled to witness fees for attendance in a court in which they actually practise. 1 WTi. R. 276. 6. An attorney at law has a legal right to recover from the defendant a quan- tum meruit for his professional services. 2 P. R. 62. 7. An attorney has no lien for his fees on money in the hands of the sheriff. 3 W. 357. 8. A payment to an attorney, by a sheriflt, who has notice that the attorney's authority has been revoked, is bad. 3 W. 357. 9. An attorney at law who collects money and refuses to pay it over to his AUCTIONS. 133 client, until sued for it, is entitled to no compensation for his professional ser- vices. 4 W. 430. 7 Barr, 376. 10. An attorney at law may maintain an action on an implied assumpsit for professional services rendered by him, without regard to the quality of the ser- vices. 4 fV. 334. 11. Payment to the attorney is payment to the principal. 3 Doug. 624. 12. The act of an attorney in fact must be limited to the terms of his power. If it be special, the principal is only bound by the execution of that special purpose. 6 TV. 96. 13. Whenever an attorney disobeys the lawful instructions of his client, and a loss ensues, the attorney is responsible for that loss. 8 Mass. 57. 14. When money is paid to an attorney for services to be rendered at a future day, a right of action to recover it back arrives at the time he neglects or refuses to render the service. 2 Mass. 198. 15. An attorney at law is not privileged in Pennsylvania from arrest on a capieis. 1 R. 350. 16. The court will always look into the dealings between attorney and client, and guard the latter from imposition. 9 Johns. 253. 17. By the death of an attorney his substitute necessarily ceases. ^W.fyS. 64. 18. An attorney, it seems, has no lien, for his professional compensatidn, on the papers in his hands, or on the money collected by him. 7 Barr, 376, per Burnside, J. ^ttction^. I. The general duties of auctioneers. II. Penalty on giving liquors at auction. III. Fines and forfeitures, appropriated. IV. Executors, &e., not restrained from selling by auction. V. Auctioneers to render an account un der oath to the a,uditor-general of goods sold, &c. VI. Judicial decisions relating to auc- tioneers. I. [According to the provisions of our ac^HLAssembly, auctioneers, in pre-^ scribed districts of the state, are obliged to ^^^pit various licenses or commis- sions, to authorize them to carry on their busm *s. For these licenses they pay a price regulated, by law, Recording to the privileges granted. They must give bonds for the faithful performance of the several duties enjoined upon them by law. Duties are laid on certain goods sold at auction, and penalties inflicted for selling without a commission, or otherwise violating the laws. Auctioneers are prohibited from being associated in business with commission merchants. They are bound, every three months, or oftener, if required, to make, to the comptroller- general, a detailed return of their sales, and to make payment to the state- treasurer of the amount of duties arising from the sales so made.] II. Act of February 9th, 1750-51. Purd. 98. Bunl. 86. Forasmuch as a pernicious custom hath prevailed in many places of giving rum and other strong liquors, to excite such as bid at vendues to advance the price, which, besides the injustice of the artifice, leads to great intemperance and disorders-^£e it enacted. That Sect. IV. If any person or persons whatsoever shall give, or sell, any rum, wine, or other strong liquors, at the time of any such vendue, to any per- son or persons attending the same, he, she, or they, so selling or giving any liquors, shall forfeit and pay for the first offence the sum of five pounds, and for the second and every other offence, the sum of five pounds. III. Sect. V. Every of the fines and forfeitures accruing, or becoming due, for offences against this act, shall be paid, one half to the overseers of the poor, for the use of the poor of the township within which such oflence may be com- mitted, and the other half to the use of him or them who shall inform or sue for the same before any justice of the peace of this province, who is hereby em- powered and authorized to hear and determine the same, and to convict the 134 AUCTIONS, offender or offenders, either on his own view, or by the legal testimony of one or more witnesses ; saving to every such offender or offenders the right of appeal in like manner as is provided in and by an act, entitled "An act for the more easy and speedy recovery of small debts," which fines and forfeitures shall be recovered by distress and sale of the offender's goods, or for want of such distress, if the offender refuse to pay, he, she, or they, shall be committed to prison for every such fine, where the same is twenty shillings, the space of eight days, without bail or mainprise, and so in proportion for any of the greater fines. IV. Act op September 23d, 1780. Purd. 99. Bunl. 129. Sect. IV. Provided, that nothing herein contained shall extend or be con- strued to extend to hinder any lawful executor or executors, administrator or administrators, to expose to sale, by way of public auction, vendue, or otherwise, any lands, tenements, goods or chattels of their respective testators or intestates ; or to hinder any sheriff, constable, lieutenant, or sub-lieutenant, or other officer, to sell and dispose of, by way of vendue, any lands, tenements, goods or chattels, taken in execution, and liable to be sold by order of law ; or to hinder any per- son or persons from selling, or exposing to sale by way of vendue, any goods or chattels of any kind whatsoever, taken and distrained for rent in arrear; but that all and every such person or persons may do therein as they might have done, any prohibition in this, or any former, law contained to the contrary notwithstanding. V. Act op March 29BLE, WHO NEGLECTS, OR REFUSES, TO DISCHARGE THE DUTIES OF THE OFFICE. Y COUNTY, ta. Elje fflommonineslt!) of ^pennss^anfat To the Constable of Y , in the said county, greeting: WHEREAS, 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 refuses, or neglects, to take upon himself the said ofBce, or to. undertake the duties of the same. These are, therefore, to command yon to take the said A. B., and bring him before J. R., one of our justices of the peace in and for the said county, to answer the premises, and further to be dealt with according to law. Witness the said J. R., at Y aforesaid, the fifth day of May, A. D. 1844. J. R., Justice of the Peace. [seal.] FORM OF A SUMMONS AGAINST A CONSTABLE, WHO HAS NEGLECTED, OR REFVSED, TO MAKE RETURN TQ AN EXECUTION. M COUNTY, as. EJe ffioramontoesltj of SPcnnsfslbanta, To the Constable of P Township, in the County of M , greeting: WHEREAS, J. R., one of our justices of the peace in and for the county of M., lately, that is to say, on the first day of April, A. D. 1844, 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. D. 1844. 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 oflice, 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. Witness the said J. R., at P. town- ship aforesaid, the fourth day of May, A. D. 1844. J. R., Justice of the Peace. [seal.] 170 CONSTABLES. EXECUTION AGAINST A CONSTABLE ON A JUDGMENT, FOR NOT HAVr^G MADE RETURN TO AN EXECUTION. M COUNTY, ss. ffije ©owmontoealtj) of SJennsgttanta, To the Constable of P Township, in the County of M , greeting: WHEREAS, 0. 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 M., for a debt of eleven dollars and thirty-five cents, (being the amount of an execution 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 having hitherto neglected to comply with the said judgment, we command you, that ot the goods and chattels of the said W. X., you levy the debt and costs aforesaid, and for want of sufficient distress, that you take the body of the said W. X., and convey him to the com- mon jail of the said county, there to be kept until the debt and costs aforesaid he fully piid; 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. D. 1844. Witness the said J. R., at P aforesaid, the 10th day of May, A. D. 1844. J. R., Justice of the Peace. [seal.] WARRANT AGAINSE A CONSTABLE FOR NEGLECT OF DUTY. B COUNTY, ss. sqie ffiommontoealt!) ot 3?ennssK)anta, To the Constable of L Township, in the County of B , greeting: WHEREAS, 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 B , was directed and delivered to 0. D., constable 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 reftsed, 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. D. 1844. J. R., Justice of the Peace. [seal.] FORM OF SUPERSEDEAS TO A CONSTABLE. S COUNTY, ss. 8Cj)6 ComiHonSnealt!) of JPennssltenia, To the Constable of D Township, in the County of B , and to each and every Constable in the said county, greeting : FORASMUCH, 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^n 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 said county aforesaid, to answer the com- plaint of L. S., made before A. B., one of the justices of the peace of the said county, for an assault and hatiery, committed on him by the said T. D. (or as the case may be.) 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. D. 1844. J. R., Justice of the Peace. [seal.] DISCHARGE TO BE SENT TO THE KEEPER OF THE COUNTY PRISON, OR A CONSTABLE. COUNTY OF B JTJe Commontocalt!) ot 3?cnn»a)Il)anfa, To the Constable of A Township, or to the Keeper of the Prison of the County of B : The Commonwealth T Charged before J. R., one of our justices of the peace in and for the vs. Csaid county, with having committed an assault and battery on C. D. A, B. J Committed for a further hearing the tenth day of May, 1844. 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 mentioned, and for so doing this shall be your suflioient warrant. Given under my hand and seal, this [tenth] day of [May,] A. D. 1844. J. R., Justice of the Peace. [seal.] CONTRACT. 171 * ©owttact I. Definitions of a contract. | II. Consideration of a contract. 1. 1. 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, &c. These are good contracts, because there is a quid pro quo, (or one tiling 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. Tom. Law Die. 7. 2. 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. 2 Reed's Blc. 210. 3. The presumption of the law is, that a contract is intended to be performed in the place or county 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 not apparent, the law of the contract is the law of the place where it is made. 6 Wh. 117. ; 4. A contract made on a Sunday is void. 1 B. 171. 5. A contract based on a supposed state of things which had no existence in feet, will be relieved against on the ground of mistake. 8 W. 492. 3 Barr, 21. 6. 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 are no prohibitory words in the statute. 1 Binn. 113. 6 PF. 233. 7. Though a contract be formal and complete, yet, if understood by the parties as a jest, it is not binding. A. 261. 8. Whenever there is a gross misrepresentation of facts relating to the subject of a contract, the contract is fraudulent and void. 4 D. 250. 9. The contract of a surety being without a beneficial consideration, is not to be extended beyond the strict technical import. 2 P. R. 27. 10. A contract to complete work by a certain time, means that it shall be done before that time. 3 P. R. 48. 11. All contracts to change the course of trials, or the effects of trials, whether to obtain a liberation of a prisoner by money to the jailer, or to obtain a pardon by the use of money, directly or indirectly, must be void. 7 W. 156. 12. Ignorance of the law does not affect contracts, nor excuse a party from the legal consequences of particular acts. 7 W. 372. 13. The time of a payment is part of a contract ; and if no time is expressed in the agreement, the money is payable immediately. 8 Johns. 189. 14. What is a reasonable time within which an act is to be performed, when a contract is silent on the subject, is a question, of law. 2 Greenl. 249. 15. 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 accepts a part, he thereby dis- affirms the entirety of the contract, and will be obliged to accept and pay for so many articles as are individually furnished according to the contract. 8 P. R. 63. 2 fV. Sr S. 26. 16. 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 172 CONTRACT. the time of ddlivery 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 delivei'y is to be to the vendee, a reason- able time before the day of delivery, and ask him to appomt a pjace of de- livery. SfV.^S. 295. , 17. 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. 5 TF. 262. 18. 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 negotiates with the party, after knowledge of the breach, and permits him to proceed in the work, it is a waiver of his right to rescind the contract. 5 /?. 69. 19. 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 additions 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 agreeably to such new contract. 3 Bay, 401. II. 1. Consideration of a contract. 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 .binding: whether the agreement be Verbal, or in writing, it is still a nude pact, and will not support an action, if a consideration be wanting. 2 KenCs Com. 463. 2. 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. 1 Br. 109. 3. 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 de- fendant, 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. 2 W. 104. 4. An agreement to forbear to sue, for a reasonable time, is a consideration certain enough upon which to sustain an action. 1 P. R. 383. 5. A moral, or equitable, obligation, is sufficient consideration for an assump- tion. 8 Binn. 33. 6. An undertaking to answer for the debt of another, though in writing, and signed by the defendant, is void, if no consideration between the plaintifli" and defendant, either of forbearance or otherwise. 8 Johns. 29. Unless the under- taking is cpnteniporaneous with the original debt. 5 Wh. 437. An injury to the party to whom the promise is made, or a benefit to the party promising, is sufficient consideration. 3 Johns. 100. 7. An adjournment of a suit in a justice's court is a sufficient consideration for an agreement. 1 Cow. 99. 8. Labour done and services rendered for one, without his request, or privity, however beneficial or meritorious, as in saving his property from fire, aifords no ground of action. 20 Johns. 28. 9. A rec[uest 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. 4 Tf. 247. 10. Fo.rbearance,,either limited or general, is a good consideration for a pro- mise to pay the debt of a third person, ^ W. fy S. 420. 11. Im assumpsit on a promise to pay the debt of another, in consideration CORPORATION. 173 of forbearance, the fact, that the debt was not due at the time of the promise, or that it was voidable in consequence of the infancy of the debtor, or that it was barred by the act of limitation, furnishes no defence to the action. 5 W. fy S. 476. I. Legislatire provisioDS, directing how to I n. Judicial decisions and authorities re- jring suits against corporations. | spectiug corporations. I. Act of March 22, 1817. Purd. 111. Dunl. 334. Sect. I. Suits may be brought against corporations, by their corporate names, before any court or magistrate of competent jurisdiction, by summons, which may be served on the president, or other principal officer, or on the cashier, trea- surer, secretary, or chief clerk of such corporation. Provided, that no suit shall be sustained on any bank-note or notes payable to bearer or order on demand, unless demand shall have been first made for payment thereof, at their banking- house, office, or treasury ; and, in case of non-payment, interest shall be recover- able on the same from the time of making such demand. COPY OF A SUMMONS AGAINST A CORPORATION. M COUNTY ss. EJe (ttommontocaltj) of ^pennsjlbantg, To the Constable of D , in the County of M , greeting : WE command you, that you summon [the Bank of Tinicum] to appear before J. R., one of our justices of the peace in and for the said county, on the 10th of July, 1844, at lu o'clock, A. M., to answer A. B., on a plea of debt or demand, not exceeding one hundred dollars. Witness the said J. R., at M aforesaid, the 4th day of July, A. D. one thou- sand eight hundred and forty-four. J. R., Justice of the Peace. [seal.] The Justice's oifice is in D Township. Sect. II. If any corporation, summoned as aforesaid, shall not appear by their officer, agent, or attorne}', at the time mentioned in said summons, then, or at any time afterwards, on proof of the service of the summons, by the oath or affirma- tion of the officer serving the same, judgment by default shall be rendered against said corporation for the sum which to the court or magistrate shall appear to be due. [The proceedings on the return of the summons, by default, or on hearing, should be the same, in all respects, against corporations as against individuals.] Sect. III. Execution against any corporate body, issued by a magistrate, shall be to levy the debt, interest, and costs of the goods and chattels of said corpora- tion, and execution out of any court shall be to levy as aforesaid of the goods and chattels, lands and tenements of such corporation ; and any execution so issued and directed to any sheriff, constable, or other proper officer, shall be served by the said officer going to the banking-house, or.other principal officer of the corporation, at their usual office hours, and demanding of the president, or other chief officer, cashier, treasurer, secretary, or chief clerk, of said corporation, the amount of said execution with legal costs ; and if the same is not forthwith paid in lawful money, or if no person can be found on whom demand may be made as aforesaid, then such sheriff, constable, or other officer, is hereby author- ized and required to seize any personal property of said corporation, sufficient for the debt, interest and costs ; but if no sufficient personal property can be found as aforesaid, then in case of execution out of any court, the levy may be on the real estate of the corporation, and in case of execution issued by any magistrate as aforesaid, where no sufficient personal estate can be found as aforesaid, the plaintiff may file in the court of Common Pleas a transcript of the judgment as in other cases. Provided, That where execution shall be against a banking com- pany, and other personal property cannot be found sufficient for the debt, interest 174 CORPORATION. and costs, if anj current coin of gold, or siker, or copper, shall be found by ?ueh officer, he shall take so nraoh as will satisfy the debt, interest and costs. Sect. IV. In case of appeal^ certiorari, or writ of error, by any corporation, the oath or affirmation required by law shall be made by the president or other chief officer of the corporation, or, in his absence, by the cashier, treasurer, or secretary; and when any corporation shall be sued, and shall appeal or take a writ of error, the bail requisite in that case shall be taken absolute for the payment of the debt, interest and costs, on affirmance of the judgment. Purd. 411. J)unl. 334, 1100. [The following form of taking bail will meet the requirements of this act. Im- mediately under the docket entry, write — July 14th, 1849. — Defendants appeal.— I am held in $150, as absolute bail in this case, conditioned for the payment of the debt, interest and costs, by the defendants, on the affirm- ance of the judgment. J. M., Tinicum. The act of 15th March, 1847, (Bunl. 1100,) re-enacts the provision of the act of 1817, as to the bail to be given by corporations on appeaL And the act of 21st March, 1849, (Bufd. 1149,) further provides, that in case of a foreign corporation, the bail shall be absolute for the payment of such sura as shall finally be adjudged to be due to the plaintiff with interest and costs thereon : and in the commencement of any action against such foreign corporation, process may be served upwn any officer, agent or engineer of such corporation, either personally, or by copy, or by leaving a certified copy thereof at the office, dep6t, or usual place of business of said corporation.] (1) Sect. V. Rules of reference, and all notices whatsoever, may, where a corpora- tion is a party in any suit, be served on the president or other principal officer, or cashier, or secretary, or chief clerk of such corporation. Sect. Yl. In cases in which a corporation shd;l be a party in. any suit in any court, or before any magistrate, all th« proceedings, except as related- by this act, shall be the same as directed by law in other similiar cases; ' «9c« of June 13, 1836. Purd. 49. Bunl 740. Sect. XLI. Every corporation aggregate or sole, shall be amenable to answer upon a writ of summons as aforesaid ; and in the case of a corporation aggregate, except counties and townships, service thereof shall be deemed sufficient, if made upon the president, or other principal officer, or on the cashier, treasurer, secretary, or chief clerk of such corporation. Sect. XLII. In actions for damages occasioned by a trespass or injury done by a corporation, if the officers aforesaid of such corporation, or any of them, shall not reside in the county in which such trespass or injury shall be committed, it shall be lawful to serve the summons upon any officer or agent of the corporation, at any office or place of business of the corporation within the county ; or if there be no such office or place of business, it shall be lawful to serve the summons upon the president, or other principal officer, cashier, treasurer, secretary, or chief clerk, in any county or place where they may be found. .Act of March 16, 1833. Purd. 55. Sect. I. The service of any civil process upon the toll-gatherer of any corpora- tion in the proper county, and next to the place where the damage or damages shall have been committed, shall be held as good and valid in law aa if served on the president, or other prinoifpal officer, or the cashier, treasurer, secretary, or chief clerk, of any corporation as aforesaid; and upon such service the like proceedings shall be had as is directed by the aforesaid act to which this is a supplement: fSl y'^'T"" *" .''"* °? Assembly requireB service to be made by delivering- a certified or at. r« l?t1f^ <■ ?r^ ^ "« 'Ti'f *° ^f *5? °' ="'''* *^« ^'""« to •»« «■ t™« copy, by writing at of th« Lm q P words, "c.r«^edor,a^tt^nttitn, in (tvlMinnl ^mt^. I. Conspiracy and forgery. II. Assault and Battery. III. Assisting a thief to escape. IV. For perjury. V. Malicious mischief, &c, VI. Rioting at an election. VII. Larceny. VIII. Assaulting and threatening, &c. Commonwealth George Mavson. COSTS. Justice. Inforraation and oath (8) 18 Docket-entry . ,St Warrant . 12i Examination, &c. . 14 One oath . 3 Continuance . ei One oath . 3 Continuance 6i Two subpflcnaB . . 18 Two oathB 6 (Continuance . 61 Four subpoenas 36 Two subpoenas . . 18 Three oaths . 9 Continuance • H Recognisance of Deft. . 20 Recog. of pros, and witn' 93 20 Conttatle. Executing warrant . . 25 Mileage, 2 m. circular . 6 Serving 2 subp. by copy .20 Mileage, 4 m. circular . 12 *!81i I. April 25th, 1844, warrant issued, D. Moody, c, on the affirmation of T. L. G., charging the Defendant with having conspired illegally and fra^udulently to make sale of, and to issue notes, purporting to be under the seal, and issued by the author- ity of the Tinicum Loan Company, with intent to cheat and defraud the said company, of the State of Pennsylvania. April 26th, Defendant brought up. C. D. (aflF.) Bail required $10,000. Defendant and G. H. each held in $10,000 for Deft.'s appearance. Adjourned to 4 P. M. Parties appear. G. L. (sw.) Recogni- sance renewed, for Defendant's appearance from day to day. Adjourned 37th, 4 P. M. Two subpcenas for Commonwealth. F. E. (sw.) c. G. H. (afF.).c. D, Bloody sw, to the personal service of the subpoenas on the defaulting witnesses. Attach- ments prayed for against L. M. and P. R., defaulting witnesses. Adjourned May 1st, 4 P. M. Two attachments and four sub- pcenas issued for the Commonwealth. .Twt) subpoenas issued for Commonwealth. Parties appear. J. F., F. R., and J. M. (sw.) May 3d, 5 P. M., parties appear. Adjourned 30th, 5 P. M. Parties appear. The magistrate requires bail from the Deft., George Mayson, to answer for a conspiracy to cheat and defraud certain corporations and individuals, to appear at the next court of Oyer and Terminer, &c., in $5000.00 ; and, also, in the fur- ther sum of $5000.00, from the said George Mayson, for forgery, and transferring certain certificates of loan and certificates of stock, in the name of divers persons and corporations, which he was not authorized to transfer. George Mayson, 659 Walnut St, ") each held in the sum of John Jones, 796 Chesnut St. 3 $10,000.00 that the Deft. shall appear, &c., at the next court of Oyer and Terminer, to answer, &c., and not depart the court without leave, &c. The prosecutors, and the several witnesses for the Common- wealth, to wit, A. B., G. H., J. F., &c., each held in $1000.00 to appear and testify, &c. Returned November 4th, to the court of Oyer and Terminer. Commonwealth vs. Timothy Wagon. C05TS. Justice. Information, &c. . . 18 Docket-entry . . . 6J Warrant . . . . 12i Examination, &c, . . 13 One oath .... 3 Continuance . . . 6i Subpffina 2 witnesses . 11 Recognisance of Deft. . 20 Recognisance of witnesses 20 Constable. Executing warrant . . 25 Mileage, 2 m. circular . 9 Serving a subp. by copy . 10 Mileage, 6 m. circular . 18 *1 71 II. May 31st, 1844. Warrant issued, G. Wallace, c, on the oath of Debh. Fox, charging Defendant with having, with others unknown, forcibly entered the house, broke the furniture, and carried away wearing apparel and two $10 bank-notes, the property of deponent; and with having committed on her an assault and battery, on the 27th May inst, June 5th, Defendant appears. D. F. (sw.) Bail required, $500.00. Defendant and Ld. Haws each held in $500.00, that the Defendant shall ap- pear at this office June 15th, 12 N. Parties appear June 15th. Adjourned to the 18th, 12 N. Subpcenas two witnesses for Deft. Parties appear. $500 bail required. Timothy Wagon, No. 834 Spruce St. 7 each held in $500 that James Corncob, 10 Magnolia St. J the Deft, shall appear next court of Quarter Sessions, &c. [of the proper county.] Debh. Fox, No. 36^ Gray's Court, held in $250 to testify, &c. Returned Dec. 20th, to the court of Quarter Sessions. (8) For the information the justice is entitled to one cent for every ten words, and three cents for the oath. The charge for this service must depend upon the length of the iuform.-i- tion. 204 Commonwealth vs. Enock Ehoxer. COSTS. JtuOct. Entering action . Examination . . 10 One oatli . . 3 Commitmeni . . m Recog. of witnesees . . so Comtable. Arresting Deft. . .37* Mileage . 3 Serving commitment . . 37i Mileage, 3 m. circular 9 «138» Commonwealth vs. David Cabver. COSTS. Justice. Information . SO Entering action ,^ Warrant •'?* One oatti . 3 Commitment • J^ Kecog. of witnesses 20 Constable. , ;_ Executing virarrant . :. S5 Mileage, 7 m. circular 31 Serving commitmeni . .37i Mileage, 3 m. circular 9 DOCKET-ENTRIES AND FEES. III. June 17th, 1844, Defendant brought up. J. Clapp, Jr. c, on the oath of whom Defendant is charged with having furnished money, and otherwise aided and abetted Jno. Moore, alias 0. Power, charged with larceny, in making his escape from depo- nent, a constable of the city of Philadelphia, who was taking him under a commitment to Moyamensingj)Tison. Bail required, $300.00. Defendant committed to the county prison. J. Clapp, Jr., 178 Vine Street, held in $100 to testify, &c. Returned to the July Sessions. ♦1 m IV. August 1st, 1844. Warrant issued. J. Crawford, c, on the oath of Ge. Laws, charged the Defendant with having on his examination before Judge Jones, sitting as a judge of the Insolvent Court in October, 1843, falsely and maliciously sworn, for the purpose of cheating and defrai^ding his creditors, in rela- tion to silk and fur hats and bonnets ; which hats and bonnets he falsely swore had been damaged and sold in Florida, for an inconsiderable sum ; whereas, in truth, the said bats, &c. are now in Philadelphia, and never were in Florida, and are not damaged. Same day Defendant brought up. T. L. (sw.) Bail $500.00. Defendant committed to the county gaol. G. Leony, of Penn Township, held in $250 to testify next court of Quarter Sessions. - Returned to the September Sessions, &c. &c. Commonwealth vs. Edwabd Wild. COSTS. Justice. Information . 16 Entering action H Warrant . 12* One oath .... 3 Eecog. of prosecutor . of Defendant . 20 20 Cojutaile. Executing warrant . 25 Mileage, 4 m. circular . 12 «i m V. September 16th, 1844. Warrant^ued. J. Walker, c., on the oath of J. F. Bandanna, charging' Defendant with having maliciously torn down the fruit trees, and carried away the froit from the premises of deponent, and with having placed in the passages of deponent's house ordure and other offensive matter. Defendant brought up September 23d. J. F. B. (sw.) Bail required, $100.00. Geo. Perry, No. 700 Chestnut St. "? each held in $100 that the Ed. Wild, 78 J Fifth St. $ Defendant shall appear at the next Court of Quarter Sessions, &c. J. F. Bandanna, 900 Chestnut St., held in $50.00 to testify, &c. Returned to the October Sessions. Commonwealth vs. 1. 6. Lyonell, Constable of Steam Ward. COSTS. Justice. Information . One oath .... Warrant . Three oaths . Recog. of Defendant . of witnesses 20 3 .20 20 Constable. Executing warrant , Mileage, 10 m. circular . .25 48 #1 57* VI. October 5th, 1844. Warrant issued. G. Wallace, c, on the affirmation of L. P., charging the Defendant with having at the ward election held for the choice of judo-es, inspectors, and assessor of Steam Ward in the city of Pittsburgh, on the 4th inst., obstructed the passage to the polls, and otherwise doing all m his power to create a riot at the said election, in violation of his duty and oath of office as constable of said ward. De- fendant appears, October 7. E. M. (afT.) J F (sw ) G W S. (sw.) Bail, $300.00 to appear at the next Mayoi^s Court 'for said city, &c. '' J. C, Peters, Alleghany St., No. 77, and J. F., J. P. and J. R., Union Hotel, Beaver St., each held in $100 to testify. i" B^r^'S?^]^ '^ ^o"'' ^'•' I ^"^ *>^1^ in ^SSOO that the Deft . S. Pitty, 24 Centre St., 5 shall appear, &c., at the next sessions of the Mayor's Court. rr > t <•■>■ "'" Returned to the December Sessions. DRUNKENNESS. 205 Commonwealth MicKEL Flake. COSTS. Justice, Tnformalion One oath . Entering action . Warrant . Biibp. 2 witnesses One oath . Continuance Recog. of Defendant . of witnesses . Constable. Executing warrant . Mileage, 2 m, circular 11 $1 33 VII. October 31st, 1844. Warrant issued. J. Walker, <•„ on the oath of N. Gorara, charging the Defendant with having feloniously taken off his boat at Middle Wharf, three tons of coal, valued at $15.00, the property of deponent, with intent to cheat and defraud him. Subprena for two witnesses. Defend- ant brought up the same day. N.Yardifsw.) Defendant says he threw off about two tons of coal at Middle Wharf on the river Schuylkill a few days ago. Adjourned to November 1st, 12 N. Defendant held in $100 to appear, &c. Parties appear. Bail required, $100.00 for Defendant's appearance, &c. Mickel Flake, 40 Walnut St., 7 each held in $100 that Deft. Geo Jenny, 2d and Vine Sts., 3 appear at the next court of Quarter Sessions, &c. N. Goram, Lombard St., held in $50 to prosecute at the next Quarter Sessions, &c. Returned to the December sessions. Commonwealth vs. Timothy Banman. COSTS. Justice. Information, &c. Entering action . Warrant . One oath . Recog. of Deit. . of Complainant Constable. Executing warrant . Mileage, 8 m. circular 16 ■jt 20 20 25 24 #126J VIII, Jan. 12th, 1844. Warrant issued. G. Wallace, u. 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. 13, Deft, brought up. W. T. (sw.) Bail required, $100.00. Timothy Banman, Upper Paxton Township, 7 each held in Joel Standfast, Lower Paxton Township, 5 $100.00 that the Deft, shall appear, &c. at the next court of Quarter Ses- sions for Dauphin county, &c., and in the mean time keep the peace, &c. Wm. Timid, Harrisburg, held in $50.00 to testify, &c. Returned to March sessions. (9) 1. 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 drunk- enness 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 misbehaviour. 4 Bl. Com. 25. 2. 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. 1 Inst. 247. And he shall be punished for it, as much as if he had been sober. 1 Hawk. 3. 3. 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. 2 Har. Sf Johns. 421. 4. 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. 1 Hen. fy Munf. 70. 1 Wash. 164. 3 Cow. 445. 1 Pars. Eq. Cas. 31. 13 Ma. 752. 5. The trustee of an habitual drunkard is not liable to an action upon a con- tract made by the drunkard before inquisition found, Eilthough he may have effects in his hands sufficient for the payment of the claim. 4 TV. 459. (9) A committing magistrate in this State has no authority to bind a person to keep the peace, or for his good behaviour, 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 behaviour for auoh period as they in their discretion shall require. The act of 1806, which gives authority to magistrates to setUe cases of assault and battery, does not embrace prosecutions for surety of the peace : in these cases, a justice can only bind one for his good behaviour until the next term, and it is his duty to make a return of such a case to the court. Phila., Q. S., July 24, 1 847, per Parsons, J, 206 DRUNKENNESS. 6. The contracts of an habitual drunkard, made after inquisition found, and before its confirmation, are void. 6 W. 139. , , , • - 7. 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, supermduced by the antecedent drunkenness of the .party. In cases, therefore, of delirium tremens, or mania apotu, the insanity excuses the act, if the party be not intoxicated when it is committed. 5 Mason, 28. Lewis' Cr. L. 602. 1 ^m. L.J. 147. Wh. Cr. i. 13. ,....,. 8. Felonious homicide, committed by one in a state of intoxication, is murder m the second degree. Where the mind, from intoxication, or any other cause, is de- prived of its power to form a design with deliberation and premeditation, the offence is stripped of the malignant feature required by the statute to place it in the list of Capital crimes. LewW Cr. L. 405. 1 Am. L. J. 149. Act of April 22, 1794. Purd. 960. Dunl. 199. Sect. III. 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 chat- tels cannot be found, whereof to levy the same by distress, he or she shall be com- mitted to the house of correction [or the county prison] of the proper county, not exceeding twenty-four hours. Sect. IV. 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. : BE IT REMEMBERED, that on the [first] day of [May,] in the year of our Lord [1849,] A. B., of York county, labourer, (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, [seal.] Provided, always, That every such prosecution shall be commenced within seven- ty-two hours after the offence shall be committed. Sbct. XIl. 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 an^ place may, notwithstanding, be admitted as witnesses. Execution to levy Forfeiture. COUNTY OF , s!. Kje ttommontoealfl) of ^Pennsslbanta, To any Constable of the said county^ andi ta the Keeper of the Prison of the pounty aforesaid^ gpeetiog: WHEREAS, 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 exi5«|3si»e drinking of spmtuous, 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 constable, to levy the same by distress and sale of the goods and chattels of the said A. B.; but if suffiewBt. goods and chattels cannot be found whereon to levy the same, together with costs, DUELLING. 207 that then you take the said A. B., and deliver him to the keeper of the prison of the county of 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 agree- ably 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 pf j^. p. J. R., Justice of the Peace, [seal.] 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. . But being entitled to a moiety of the penalty recovered, they are not competent witnesses. 1 Ash. 413. Where a form of summary conviction is peremptorily prescribed, it must be ex- actly followed ; but if such a provision is merely directory, and the conviction con- tains every thing required by the form given, it will not be vitiated by unnecessarily 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, tJierefore, clearly directory. 1 Ash. 411. Ant 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 honour or profit in this state, and shall be punished otherwise in such man- ner as is, or may be prescribed by law ; but the executive may remit the offence and all its disqualifications. Const, of Perm., Art. VI., sect. 10. Act of March 31, 1806. Purd. 334. Dunl. 246. Sect. I. If any person within this commonwealth shall challenge by word or writing the person of another, 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 receiving such challenge, shall for such offence, being thereof lawfully convicted in any court of record within this common- wealth, by the testimony of one or more witnesses, or by confession, forfeit and pay the sum of five hundred dollars, and shall suffer one year's imprisonment at hard labour, in the same manner as convicted felons are now punished, and more- over shall forfeit and be deprived of all rights of citizenship within this common- wealth, for the term of seven years. Sect. II. If any person shall willingly and knowingly carry and deliver any written challenge, or shall verbally deliver any message, purporting to be a challenge, or shall consent to be a second in any such intended duel, and. shall be therefor legally convicted as aforesaid, he or they so offending shall, for every such offence, forfeit and pay the sum of five hundred dollars, and suffer one year's imprisonment at hard labour, in the same manner as convicted felons are now punished, and more- over, shall forever hereafter be rendered incapable of holding any office of honour, trust or profit within this commonwealth, which incapacity shall be declared and made part of the judgment of the court. Sect. III. In any case, it shall be sufficient to form an indictment, generally, against either of the principals, for challenging another to fight at deadly weapons, and notwithstanding it may appear on the trial that the defendant only accepted the challenge, it shall be sufficient to convict and render him liable to the penalties of this act ; and in like manner, an indictment against the seconds may be framed gene- rally, for carrying and delivering a challenge ; and proof of the mere act of fighting, and the defendant being present thereat, shall be sufficient to convict the defendant upon an indictment so framed ; and if the duel shall take place within this common- wealth, the mere act of fightfaig shall be full and complete evidence of the charges 208 EAVES-DROPPIWa. respectively of giving or receiving, or of carrying and delivering a challenge, without other proof thereof. Sect. IV. If any person shall have knowledge of any challenge to fight with any deadly weapons, given or received, or in any manner be witness to the fact of such challenge, duel, or fighting, not heing a second thereat, or party criminal therein, and shall conceal the same, and do not inform thereof, he or she shall be guilty of a misdemeanor, and upon conviction thereof, shall be adjudged to pay a fine of fifty dollars, and moreover, suffer nine months' imprisonment, without bail or main- prize. Sect. V. If any person or persons shall presume to publish in any newspaper, or post by handbills, written, or printed, or otherwise, any other person or persons as a coward or cowards, rascal or rascals, liar or liars, or use any other irritating or abusive language for not accepting a challenge, or fighting a duel, such person or persons shall, for such offence, being thereof convicted, be subject to the same pun- ishment as though he or they had fought a duel, as provided by the first section of this act; and the publisher or printer shall, in all prosecutions under this section, be summoned as a witness, and accepted by the courts as a good witness against the writer or writers of such publication or handbill ; and if the said printer or printers, when summoned before the court, shall refuse to give up the writer's name or names, the court shall consider him or them as the author or authors thereof, and proceed to punish him or them accordingly. 1. The offence of duelling consists in the invitation to fight, and the misdemeanor is complete by the delivery of the challenge. Const. Rep. 107. 2. If a jury believe a letter inviting to a meeting, though on its face it purports to be a challenge, is 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 /. J. Marsh. 122. 12 Ma. 276. 3. It is a misdemeanor, at common law, to challenge another to fight with fists, (2 Bost. Law Rep. 148,) or to challenge another to fight under any circumstances ; whether constituting the statutory offence, or otherwise. 1 Hawks. 487. 2 Brevard, 243. Whart. Cr. L. 559. 1. Eaves-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 findiiig sureties for their good behaviour. 4 Bl. Com. 168. Lewis'' Cr. L. 233. 2. 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 object of it, or by his authority, it would seem that the prosecution does not lie. There is no law that can prevent a husband constitutinff a watch upon his wife. 6 Perm. L. J. 226. ^ '^ 3. Eaves-dropping consists in privily listening or hearkening of the discourse, not in looking or peeping, which is nbt indictable ; but if the defendant listen as well as look, he may be convicted. Ibid. 4. In Tennessee, a prosecution for eaves-dropping can be maintained at common law. 2 Overt, 108. ESCAPE. 209 I. Act of Assembly. I HI. Warrant against a constable for an es II. Judicial decisions. | cape. I. Act of April 5, 1790. Pttrd. 554. Dunl. 174. Sect. 31. The keepers of any of the jails and houses of correction within this commonweahh, their deputies and assistants, in case any offenders shall escape from confinement without the knowledge or consent of the said keeper, deputies or assistants, shall forfeit and pay the sum of ten pounds, &c. Provided, that no- thing in this act contained shall be deemed or taken to extend to escapes volun- tarily suffered by any such keepers of the said jails or work-houses. ^ctof^pril 4,1807. Purd. 554. Dml.Q,48. Sect. 6. If any jailer shall be convicted of having, by his negligence, suffered' any prisoner committed to his custody, to escape, he shall forfeit and pay for every such offence, a sum not exceeding three hundred dollars. II. 1. 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. Termes de la Ley, 321. 3. A prisoner in execution shall not be allowed to go out of the jail, or if he goes out, though he returns again, it is an escape. 2 Inst. 360, 381. 3. In civil actions the sheriff for constable] is to answer for an escape. Bull. N. P. 59. 4. There are two kinds of escapes, voluntary and negligent. Voluntary is where one arrests another for felony or other crime, and lets him go by consent, in which case the party that permits the escape is esteemed guilty of the crime committed, and must answer for it. Negligent escape is when one is arrested and afterwards escapes against the will of him that arrests him, or had him in custody, and is not pursued by fresh suit and taken again before the party pursu- ing hath lost sight of him. Cowp. Just. 36. 5. Officers who, after arrest, negligently permit a felon to escape, are punish- able by fine ; but voluntary escapes are punishable in the same degree as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony or trespass ; and this whether he were actually committed to jail' or only under a bare arrest. 4 Bl. Com. 130. 6. An officer is not chargeable with an escape unless the offender has been actually in his custody. 7. If a prisoner in custody hang or drown himself, this is considered a negli- gent escape in the jailer, or officer, for not using more precaution to prevent a prisoner thus making away with himself. Dalt. 159. So also if a prisoner brealc a jail, this seems to be a negligent escape, because there wanted either due strength in the jail that should have secured him, or due vigilance in the jailer that should have prevented it. 1 Hcde, 600. 8. 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. 2 Hawk. 137. 9. If a party escape, or be rescued from arrest on a ca. sa., though the sheriff is thereby liable, because he ought to have taken the posse comitatus, yet the plaintiff may retake such prisoner on a new ca. sa., or sue out another kind of execution on the judgment, and shall not be compelled to take his remedy against the sheriff, who may be dead or insolvent. Bingh. on Executions, see 3 5.^ R. 464. He may proceed against the sheriff for the escape, who cannot take advantage of a want of a scire facias to ground the ca. sa. upon, which had issued post diem et annum. 1 Salk. 273. In an action of debt for an escape from a ca. sa., the jury must find the whole debt and costs, the plaintiff be'ing entitled to recover then, in the same manner as he could have done against the debtor. 3 K 17. 4 F. 47. 1 S. ^ R. 273. 210 EVIDENCE. 10. After an escape, the sheriff may himself retake the defendant, unless the escape were with his permission. Barnes, 373. 2 T. R. 25. But in the latter case he cannot arrest or detain him without new process. 2 Johns. Las. 6. 11. A constable is hable for an escape, without proof of negligence or miscon- duct on his part. 4 W. 215. , , -, » x. 12. In an action on the case against a sheriff or [constable] for an ^scape, the mea- sure of damages is the actual loss which the plaintiff has sustamed; hence, it is com- patent for the defendant to prove that the defendant in the execution was insolyent 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, b W. ^ S. 'ibb. 3 Barr,2m. 13. To allow a prisoner in execution the liberty of the jail-yard is not an escape. 2F.R.W7. , .^ ., , . „ , 14. But if the prisoner escape from the jail-yard, the sheriff can avaU hipselt of -nothing as a matter of defence, but an act of God or of the common enemy. Ibid. 15. It is not a sufficient answer to an action against a sheriff for an escape, that ithe jail and jail-yard are defective and insufficient to keep the prisoners. Ibid. 16. 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 ithe case ; nor will it relieve the jailer from liability that he took advice and acted ■with good faith in the matter. 5 TV. 141. 17. If an action of escape be brought in debt, the jury, if they find for the plaintiff, must find the whole debt and costs ; but if brought in case, they may -find such damages as they think proper. Ibid. 3 Barr, 269. III. Warrant against a Constable for an Escape. J'l COUNTY, ss. SEfje ffloittmontoealtl) ot Jlennsslbanfa, To the Constable of N Township, in the County of M , greeting : WHEREAS a certain A. B. of N township aforesaid, tailor, was, on the 1st day of May, A. D. 1844, at N aforesaid, charged 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, nnder his hand and seal, in due form of law, directed to C. D., co^istable 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 of R township aforesaid, to be exe- cuted : and whereas the said CD., 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 negligently did permit the said A. B. to escape and ^o at large, out of the custody of him, the said C. D., to the great hinderance of justice, and m contempt of our laws. You are therefore hereby commanded to take the said C. D. 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 N aforesaid, the 20th day of May, A. D. 1844. J. R., Justice of the Peace. [seal.] SiJUJtiwe, I. General rules of evidence. U. Of written evidence. III. Parol evidence. IV. Book entries and accounts. V. Of accounts. VI. Depositions how to be taken. VII. Handwriting. VIII. Hearsay. IX. Witnesses. X. When a party to a suit may be a wit- ness. XI. Miscellaneous cases. XII. Costs of witnesses. u l-,^J"^^nce signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other; and no evidence ought to be admitted to any other point. 3 Bl. Com 367. EVIDENCE. 211 2. Evidence is of two kinds, either written or parol, that is, by word of mouth. 3 Bl. Com. 368. 3. Evidence consists of that which is proved, and, under particular circum- stances, of that which is not proved. 10 W. 104. 4. It is a general rule, that the best evidence shall be given which the nature of the case admits of. But necessity, either absolute or moral, is a sufficient ground for dispensing with the usual rules of evidence. 4 Binn. 326. 5. What a party admits, or wh^t another asserts in his presence, and he does not contradict, is received as evidence against him ; but not what is said by his wife, or any other member of his family in his absence. Feake's Evid. 11. 6. But a distinction must be made between an admission and an offer of com- promise, after a dispute has arisen. An offer to pay a sum of money in order to get rid of an action is not received as evidence of a debt ; but, admissions oi par- ticular articles of an account are good evidence. Bull. N. P. 236. 2 Barr, 182. 7. Where positive and direct evidence is not to be looked for, the proof of cir- cumstances 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 subject 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 furnishes 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 sufficient to rebut and overturn them, and to call on the different parties to establish their respective rights by the ordinary rules of evidence. Feake's Evid. 13. 1 Greenl. Ev. § 33—48. 8. In an action brought " for the use of" another, it is not competent for the defendant to prove that the transfer was obtained by fraud. 6 W. 309. 9. Evidence of a demand made by a plaintiff upon a person in the employ- ment of the defendant, is not admissible as evidence of a demand upon the defendant, there being no proof that the demand was communicated to him. 2 Wh. 200. 10. In questions of identity and personal skill, a witness may testify to a belief not founded in knowledge, but the rule is otherwise in respect to facts which may be supposed to be within the compass of memory. 8 W. 406. Jbid. 227. 11. A party cannot, after examining a witness, give in evidence his former testimony and declarations, ostensibly to discredit him, but in truth to operate as independent evidence. 8 W. 447. II. Of Written Evidence. 1. Evidence by records and writings, is where acts of Assembly, judgments, proceedings of courts, deeds, &c., are admitted asevidence. 2. 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. Exemphfications are copies under the great seal or under the seal of some particular court, which seals prove themselves. Where the law intrusts a particular officer [as a justice of the peace] with the making of copies [transcripts], it gives credit to them in evidence, without further proof. Bull. N. P. 229. 3. 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. 4. Records and enrolments prove themselves, and a copy of a record or enrol- ment sworn to, may be given in evidence. Co. Litt. 117, 262. 5. A receipt is not conclusive evidence against the party signing it, but he may show that he did not receire the sum or thing in question. 2 T. Rep. 367. 212 EVIDENCE. 6. A receipt in full is conclusive evidence when given under a knowledge of all circumstances then depending between the parties ; aliter, when given withoiat such knowledge. Hsp. 175. But when such a receipt is obtained by Iraud, &c., it is a nullity. 1 Campb. 394. • 7. A paper handed upon request to the opposite counsel, and inspected by him, does not, in consequence thereof, become evidence for both parties. QS.SrR. 293. , , . , . 8. In the case of private deeds or other instruments, the production ot 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 adverse 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 instru- ment. 10 Co. 93. ZT.Rep.lbl. l^fr.526,70. 1 ^/&. 446. 10 /oAns. 363. 9. Subscribing witnesses are not necessary to the validity of a deed, (1 Lev. 25,) and therefore, if there be none, or the subscribing witness being called, denies having seen the instrument executed ; {Peake N. P. 146, Dougl. 216, 1 Blaeli. 365 ;) or it appears that the name of a fictitious person is put as a witness, by the party himself who- executed the deed ; (Peake N. P. 23, 5 T. Rep. 371 ;) or the person really attesting is, at the time of the execution of the deed, interested in it, and continues so at the time of the trial, in these cases proof of the handwriting of the party will be sufiicient. 10. If a man destroys a thing that' is designed to be evidence against himself, a small matter will supply it, and therefore the defendant having torn his own note signed by him, a copy sworn was admitted to be good evidence to prove it. Ld. Raym. 731. 1 1 . Writings with-the seal torn off, allowed to be read in evidence. 1 Binn. 538. 12. 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. 3 Salk. 154. 13. 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 is introduced merely by way of description, is not evidence of the date of the birth. 5 JV. ^ S. 266. 14. The practice of admitting an account sworn to by the plaintiff as conclu- sive evidence against the defendant, is not only illegal, but highly unreasonable and dangerous, as it gives to the dishonest man a power over his neighbour's purse totally incompatible with every rule of equity or justice. However conve- nient to the plaintiff, or whatever facility in the transaction of business it may afford to the justice, 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. 2 D. 77, 114. 15. 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 produced. 3 Esp. 213. 16. 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 au- thenticated by the proper officer, in whose custody it was. 9 PF". 311. 17. The docket-entry, upon proof of the loss of the other part of the record, is competent evidence ; and parol evidence may be given of the contents of that part of the record which is lost. \0 W. 63. 18. The record of a deed, as contained upon the record book, brought into court in the county in which it belongs, is legal evidence. Ibid. 67. 19. A deed so acknowledged or proven as to be properly admitted to record, is ad- missible in evidence, without further proof of execution. 4 Barr, 13. 5 Gilm. 376. EVIDENCE. 213 20. An agreement or deed, under which land has, been occupied and claimed for upwards of thirty years, may be given in evidence without proof of its execu- tion by^ the subscribing witnesses. I W. fy S. 533. 1 Greenl. Ev. § 21. 21. In 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. 10 W. 82. 22. 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. 10 W. 158. 1 Greenl. Ev. § 486^88. 23. 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. 2 PF. fy S. 156. 24. A printed copy of an act of Assembly, published under the authority of the legislature of another state, may be read in evidence. 12 S. 4" i?. 203. III. Parol Evidence, when admitted to affect a Written Contract. 1. The general rule is, that parol evidence is admissible to explain, but not to contradict, alter, add to, or diminish a written instrument. 4 D. 340. 2. The rule that parol evidence is not admissible to alter or contradict written instruments applies only to cases between the parties to the instrument, their representatives, and those claiming under them, but not to strangers. — Per Ken- 7iedy, J. 1 Wh. 303. 3. A written instrument cannot be explained by parol evidence, unless it refers to something dehors, of so ambiguous a natiire as to require explanation. There are several exceptions to the above general rule ; as where a declaration is made before a deed is executed, showing the design with which it was executed in case of frauds, and of trusts, though no trust was declared in writing. 1 D. 426. 4. Parol evidence is admissible to prove that when a bond was executed, it was agreed it should be void, in a particular contingency. 1 V. 132. 5. Parol evidence is admissible in an action by the endorsee against the en- dorser of a note, endorsed in blank, to show that at the time of the endorsement the endorsee received the note under an agreement that he should not have recourse upon it to the endorser. 5 S. ^ E. 363. 6. Parol proof to show that a note was by mistake made payable in 1810 when the agreement of the parties was that it should be made payable in 1811, is inadmissible in a court of law. 8 Johns. 375. 7. Parol evidence of the understanding of the parties in relation to the con- struction of a written agreement, may be given to explain that which is otherwise ambiguous. 9 W. 9. 8. Whatever material to the contract was expressed and agreed to when the bargain was concluded and the article drawn up, may, if not expressed in the article, be proved by parol, unless perhaps it is expressly contrary to the writing. — Per Huston J. 16 S. Sr R. 424. 1 Greenl. Ev. ch. 15. 9. In debt for rent on an indenture of lease, parol evidence was held to be admissible to prove that at the time of executing the lease, it was agreed by the parties that the rent should terminate upon a certain day, being about nine months earlier than the time expressed in the lease. 16 S. ^ R. 345. 10. Parol evidence is admissible to show fraud in the formation of a written instrument, or a fraudulent use of it afterwards. 4 R. 141. 11. Parol evidence of what took place, at and immediately before the execu- tion of a written instrument, is admissible to prove fraud and plain mistake in drawing the writing, or to establish a trust, or to rebut an equity. 2 ^sh. 313. 12. Subsequent admissions or parol promises of a party to an instrument of writing are not admissible in evidence to change its character or legal effect, and make it different from what it purports to be. 7 W. 517. 214 EVIDENCE. 13. It is competent to give parol evidence to explain a written receipt, and shovir that it was given for a note and not for money. 1 W^. ^ <3. ■s^i- IV. Book Entries and Accounts •1 If a suit is founded on a book account and the defendant questions the validity of the demand, it is most assuredly the d^ty of the justice before whom The cause is depending, to require of the plaintiff' to produce his proofs of the tne cause IS aepenumg, i h , . . fj^ j- ^e goods sold and delivered, existence of the debt. It t&e suDjeci oi uie ui^uuu u g Apfp„i{ant iHp or work and labour done, in the usual course of business, for the defendant, the Stiff's day-book ought tobe produced. The book, accompanied by the oath rSmLw the person who made the entries, whether It was the pla.nt.ff or hs clerk!) that the entries were truly made, (1 F. 321, at the times then ,peci- lci%mL only be good evidence of the sale and delivery, but likewise of the valJe of the goods, or work done, if a price is put upon them in the book, (1 Y, 347.) The book thus produced, and sworn to, must be the plaintiff s origin^ 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 ongmal entries. 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 admission of the plaintiff m this case to giVe sta- bility to his claim by his own oath, is certainly a violation of that rule ol the common law which excludes a party to the suit from being a witness, because of his immediate interest. But though some inconveniences may arise from this practice, a failure of justice would ensue, if the rule of the common law were not relaxed ; though the relaxation should not he stretched beyond due bounds, or carried farther than necessity requires. The plaintiff's book being thus made competent (if I may so speak) as a witness, must evidence its own credib.hty; its credibility will rest upon the fairness and regularity of the entries, unless it be reasonably accounted for ; an interlineation, particularly with ink of a colour different from that with which the body of the entry was made ; crowding more words into a smaller space than the general hand-writing of the book required, and the like, are chcumstances of fraud which should not only invalidate the specific entry under consideration, but perhaps destroy the testimony of the book alto- gether. Grayd. Just. 116, 117. 1 Greenl. Ev. § 117. 2. The book of original entries, although prima /acie 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, but it is not evidence at all of money, lent, or cash paid. 1 F. 347. 3. A party to a cause sworn on his voir dire, to his book of original entries, can be examined only with reference to the book ; he cannot be examined generally without his consent. 17 S. (Sr R. 99. (1) 4. If the defendant is not the original debtor, but assuming to pay the debt of another, the entry in the plaintiff's book, proved by his own oalh, cannot be received in evidence : proof must be > made by an indifferent witness, or by some instrument of writing. 1 D. 238. 5. 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 does not clearly appear, it must be submitted to the jury, [or the justice,] to decide on. 4 S. 4- R. 3. 6. 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, accompa- nied with the writer's oath, as evidence to charge a customer. 9 S. S^ R. 285. (1) This rule has been relaxed in other states. It was expressly ruled in 3 Richardson, 353, and 4 Harrington, 385, that where a plaintifif becomes a witness to prove his book entries, he may be cross-examined by the defendant as to the delivery of the goods. And in 5 W. ^ iS. 379, our oyn Supreme Court say, "the competency of entries in day-books is based on the personal know- ledge of him who makes them that the fact stated is true." The rule in 17 iS. 4r -K. 99, must, however, be considered the law in Pennsylvania, until the point is again submitted to the revision of the supreme court. EVIDENCE. 215 7. 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 admissible as a book of original entries. 13 S. Sf R. 126. 8. A mutilated piece of paper, which appears to have been torn out of a book in which the name neither of the plaintiff nor defendant appears, which contains no charges against the defendant, and which is unintelligible, without explana- tion by the plaintiff, is not admissible in evidence as a book of original entries. 4 B. 291. 9. 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 arbi- trary 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. 4 i?. 404. 10. 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 evidence to the jury ; and the material on which the entry was first written, or its size and shape, are indifferent. Ibid. 408. 11. In order to the validity of a book entry as evidence, it must be a registrj- of a sale and delivery, actually made, of the things therein contained at the timi of their being so entered. 4 W. 258. An entry on a card or slate is but a memo- randimi preparatory to permanent evidence of the transaction which must be perfected, at or near the time, and in the routine of business. In Ingraham v. Bockius, 9 S. 4" R- 285, and Patton v. Kyan, 4 R. 410, the entries were transferred the same even- ing, or the next morning, and they ought in every instance to be so, in the course of the succeeding day. Ibid. 12. 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 evidenced by an entry in his book of account. 1 Jones, 310-12. 13. 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. 10 W. 249. AW. Sf S. 290. 14. The book of original entries of a tradesman is not evidence of the delivery of goods to be sold on commission. 2 Wh. 33. 15. The book of original entries of a party claiming for goods sold, or work and labour done, is not the best or only evidence of the claim which may be proved aliunde. 3 Wh. 75. 16. A book of original entries manifestly erased and altered in a material point cannot 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 gives an explanation which does away with the presumption arising from its face. 6 Wh. 146. 17. 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. 6 Wh. 189. 18. 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. \ W. Sf S. 256. 19. 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. 2W.^S. 9. 216 EVIDENCE. 20. The handwriting of a pi lin tiff who has made original entries of charge in a book, and who is absent from the state, ma 7 be proved, and "pon such proof the entries are admissible. 8 W. 77. And so in case "fa clerk (who has made the entries) temporarily absent from the state. 'HW.Srls.l&i. 21. 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 busmess m which he is engaged who makes the charge. If they be delayed over one day, they are not llgal evidence to charge a defendant unless under peculiar circumstances. 8 W. 544. ,. , .. , 22. 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. 5W.SrS. 377. V. Of Accounts. 1. The accounts exhibited by one 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. 1 D. 147. 2. 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. 7 S. ^ S. 10. 3. The defendant cannot give in evidence an account book kept by him of the plaintiff's work and labour. 12 S. fy R. 405. 4. Entries in a book made, or caused to be made, by a father, of advance- ments to his children, are competent evidence, although the child charged had no knowledge of the entry. 6 ?F. 86. 5. 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. 8 TV. 39. 6. 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. 3 TV. ^ S. 109. VI. Depositions, — how to be taken under a Rule of Court. 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 equify, [or law ;] and the copies of such depositions, regularly taken and published, are read, as evi- dence, at the hearing of the cause. Pract. Atty. 234. 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 District Court 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, ^s the law, or the practice, may require, of the time and place at which he pur- poses to examine the witnesses. A notice in the following form will answer this purpose : " A. vs. B. In the District Court of Allegheny county, 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. D. 1844, at the office of John Binns, Alderman, No. 36 South Sixth street, in the City of Philadelphia, before the said J. B., or some other Alderman of said city. C, Attorney for the Plaintiflf. To B., the Defendant. Pittsburgh, June 4, 1844." If application, for that purpose, be made to the alderman, before the rule is to be executed, he should issue subpoenas for the witnesses. If they do not attend, he has a right, on appli- cation, and due proof that the subpctonas were personally served, to issue an attachment, give it to the constable, and compel the attendance of the witnesses, as in other cases. See act of February 26, 1831. Purrf. 428. Dunl. 513. The parties and witnesses l/sing in attend- ance, 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 : EVIDENCE. 217 " Depositions of witnesses produced, sworn, (or affirmed,] and examined, at the office of J. B., one of the Aldermen of the City of Philadelphia, No. 36 South Sixth Street, in said city, on the 19th day of June, A. D. 1844, between the hours of 9 A. M. and 5 P. M., of said day, in obedience to the rule of Court, and notice, hereto attached, to be read in a cause depending in said Court, 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 examination, and cross- examination, of the witness. Where there are interrogatories filed, let the justice, pre- viously 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, all the witness may say, and in the very words of the witness. If he wishes 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 expression, or the placing of one word before, or after, another. It is belter 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 labour most diligently and successfully to bring the witness, in all his peculiarities of language, most faithfully before the court, so that, as far as possi- ble, his deposition shall maie 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," &c. &c. Before attaching the paper, write on it thus — " This is the paper A, referred to this day, June 19th, 1844, by the witness, H. M., on his. examination before J. B., Alderman." 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., Alderman, Philada. June 19, 1844." The whole of the papers should be put under an envelope, and addressed to the protho- notary of the court from whence the rule issued, and directed to the county town of the proper county where the office of the prothonotary is kept. 1. Depositions taken ex parte, under a rule of court, after the hours named in the rule, cannot be read ; but, if the opposite party, having notice, did not attend at the hour, they may. 2 Binn. 72. 2. A notice to take depositions should have sufficient certainty as to time afid place to enable the opposite party to attend, without any extraordinary search. 3 Binn. 139. 3. It is not necessary that depositions, taken under a commission, should be subscribed by the witnesses. \ S. S/- R. 291. Nor that the notice should say before a justice. ?, S. Sr H- 349. (2) 4. 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 justiqs, under a rule to take depositions, is not admissible in evidence. 12 S. Sf R. 405. 5. 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. 12 S. Sr R. 405. (2) Testimony taken under a commissim 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 commis- sioner, when the party procuring; it was present with the commissioner at the time of taking it. The party, his solicitor, or agent, procures the attendance of the witnesses before the commis- aioner, but must withdraw while it is being taken. 6 Barr, 450. 218 EVIDENCE. 6. A cross-examination, under a rule of court, does not prevent objection, after- wards, to the competency of the witness. 1 D. 275. But objections to leading questions must be taken at the time of the examination. 3 Binn. 1 33. 7. 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. 12 S. Sf R.^\0. 8. In case of difference of opinion in taking down the words of the witness, the justice should decide. 13 S. Sr R. 410. 9. 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. 1 P. R. 454. 10. The part of a deposition which is in the handwriting of the agent, or attor- ney 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 interests The cross-examination, in the handwriting of the justice, is not exceptionable, and may be read. 2 P, R. 200. 11. 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. 3 P. R. 41. 12. 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. 8 W. 406. 13. It is irregular to give a notice to take a deposition upon two days, although they be consecutive. Ibid, 14. Notice of the taking of a deposition, served on the attorney in the cause, is good unless he objects at the time of service. 8 S. 8r R, 41. 15. 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 answers to each. 4 S, ^ R. 298. 16. If a witness do not answer the general interrogatory, his deposition can- not be read. 3 PFash. C, C. Rep. 109. 17. The person before whom depositions are to be taken, has no power to ad- journ from time to time without consent and without notice. 5 S. Sj- R. 70. 18. It is not necessary that depositions taken under a commission should be subscribed by the witness. 1 W, C. C, R, 144. 19. 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. 1 Binn. 436. 20. It must particularly appear when and where the depositions were taken. 4 W. C. C. R. 186. , 21. A deposition taken in pursuance of a rule of court cannot be read in evi- dence, unless it appear by the certificate of the justice, that it was taken at the time and place mentioned in the notice. 4 W. fy S. 113. Per curiam, it sufficiently appears that the deposition was taken at the place : when that is a town, and a particular house in it is specified, it should appear to have been taken at the very spot. 4 W. 8f S, 113. 32. 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. 6 W, 266. VII. Handwriting. 1. The best evidence to prove the handwriting in question, is that of a witness who actually saw the party write it. Such direct evidence cannot, however, always he procured ; and in general, to prove the handwriting of a person, any witness may be called, who has, by sufficient means, acquired such a know- edge 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. 2 Stark, Ev. 373. 1 Greenl. Ev. § 577. 1 Harris' 641 2. The best evidence of the execution of an instrument is the testimony of the subscribing viritness : the next best is, proof of the handwriting of the witness. EVIDENCE, 2\^/j and this will be admitted when the witness is dead, or i)ut of the jurisdiction of the court. 3 Binn. 192. 'i, S. 8r R. 80. \ 3. If the subscribing witness to a bond is out of the jurisdiction of the court, and, upon diligent search, no person can be found within its jurisdiction who can prove his handwriting, evidence of the handwriting of the obligor is admissible. 3 Binn. 192. 4. 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 know- ledge derived from these facts, that he believes the signature produced to be the proper handwriting of the party. 19 Johns. 134. 5. A notary public, 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 attesting witness to a will. 3 Nott %• M^Cord, 400. 6. Handwriting may be proved by one who has become familiar with it, in a long correspondence with the writer, although he may never have seen him write. 3 P. R. 437. 7. Comparison of handwriting is legal evidence, after evidence has been given in support of a writing which may then be compared with other writing of the party, of which there is no doubt. 5 Binn. 349. 6 Wh. 284. 8. Comparisons of hands are not evidence in a criminal case. 4 Wash. C. C. Rep. 729. But the same rule applies in criminal as in civil cases, that after evi- dence has been given in support of a writing, it may be corroborated by compar- ing the writing in question with other writing, concerning which there is no doubt. —Per Duncan, J. Q S. Sr R. 571. 9. To authorize the admission of the writing offered as a test or standard, no- thing short of evidence by a person who saw the party write the paper, or of an ad- mission by such party of its being genuine, or evidence of equal authority, is suffi- cient. 6 Wh. 284. VIII. Hearsay. 1. 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 questions of pedigree, would prevent all testimony what- ever. 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 like to know the facts. Peake's Evid. 11. 1 GreenZ. £c. § 103-4. 2. To prove pedigree, evidence was permitted to be given of hearsay, a great length of time before any dispute had arisen. 1 D. 14. Wall. Jr. Jlppx. iii. 3. Hearsay evidence admitted to prove ancestors to have been Indians. 1 Wash. C. C. Rep. 123. 4. Evidence of hearsay, from the father and mother, is not admissible in a question of age. 1 -D. 9. 5. A witness called to state what was sworn at a former trial by another wit- ness, since dead, may testify to the substance, and need not state the exact words v of the witness. 19 S. fy R. 14. The same rule applies when the witness is out V^ of the state. 4 S. ^ R. 419. IX. Witnesses. 1. The attendance of a witness in civil cases is compelled by means of a subpcena, which is a judicial writ, commanding the witness to appear at the trial to testify for the plaintiff or defendant, under pain of forfeiting [100 dollars] in case of disobedience. If a witness wilfully neglect to attend upon the subpoena, 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 njured. 1 Stark. Ev. 77, 79. 2. There is no privilege from the service of a subpoena. 4 D. 341. 3. Where an instrument is in the hands of a third person, the production is ■K 220 EVIDENCE. compelled by means of a writ of sia>p(Bna duces tecum. By this writ the witness is compellable, it seems, to produce all documents in his possession, unless he have a lawful or reasonable excuse to the contrary— of the ^aljoj'y "^ ^^^ ^^'^^^^ the court [or justice], and not the witness, is to judge. 4 D. 86, 87. 4. But a subpcena with a duces tecum cannot issue to a public oHicer to bring original papers into court, when certified copies would be evidence. IF. 403. 5. General Eulea. By the principles of the common law, every person not interested and not of infamous character, may be a competent witness. 2 Binn. 165. 6. A negro slave can be a witness in Pennsylvania. Dunl. 1093. 7. Insane persons, idiots, and lunatics, during their lunacy, are incompetent witnesses ; but lunatics, in their lucid intervals, when they have recovered their understandings, are competent. Children not able to comprehend the moral obligation of an oath, cannot be examined ; but children may be examined on oath, if capable of distinguishing between good and evil. Com. Big. 8. Atheists and such infidels as profess no religion that can hind their con- sciences to speak the truth, are excluded from being witnesses. Bull. N. P. 292. 9. The true test of a witness's competency on the ground of his religious prin- ciples is, whether he believes in the existence of a God who will punish him if he swears falsely : and within this rule are comprehended those who believe future punishment not to be eternal. ^W.fyS. 363. 10. A witness, while in a state of intoxication, ought not to be sworn nor per- mitted to testify. 15 Johns. 143. 15 -S". ^ R. 335. 11. And the court before which the witness is produced may decide from its own view, whether the witness is in such a situation that he ought to be sworn. Ibid. 12. One who is born deaf and dumb may, if he have sufficient understanding, give evidence by means of an interpreter, or by writing, if able. 1 Stark. J3v. 92, in note. 13. Of their privileges. Where a question is asked, the answer to which would tend to expose the witness to punishment, or to a criminal charge, as to convict him of the oflTen'ce of usury, he cannot be compelled to answer, and there- fore such questions ought not to be put. 1 Phil. Ev. 263. 14. In Pennsylvania a witness is not bound to answer any question which will render him infamous or disgrace him, or involve him in shame or reproach. 1 P. R. 415. 15. A witness will be allowed to refer to an entry or memorandum made by himselfj after the occurrence of the fact to which it relates, in order to refresh his memory. 1 Phil. Ev. 262. 16. Of their examination. It is a general rule that leading questions are inadmissible on examination of a witness in chief; questions to which the answers yes or no would not be conclusive, are not in general objectionable. 1 Str. 81. Upon cross-examination, counsel may lead a witness so as to bring him directly to the point as to the answer. Ibid. 17. A. leading interrogatory is one, which is expressed in such a manner as to indicate to the witness the answer which it is wished he should make. 7 S. fyR. 171. 18. It is always competent for a party to show that the witness has related the facts trying in a different manner whether under oath or not. 4 TV. fy S. 557. 19. The party examined must depose to those facts only of which he has an immediate knowledge and recollection. He may refresh his memory with a copy taken by himself from a day-book ; and if he can then speak positively, as to his recollection, it is sufficient ; but if he has no recollection further than find- ing the entry in his book, the book itself must be produced. 2 T. Rep, 754. 20. Though witnesses can in general speak only as to facts, yet in questions of science, persons versed in the subject, as physicians, may deliver their opinions, upon oath, on the case proved by the other witnesses. Ibid. 21. 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 competent evidence. 3 Barr, 414. EVIDENCE. 221 22 In cases of life, no evidence is to be given against a prisoner but in his pre- sence. 2 Hawk. 590. 23. A party may call as many witnesses as he thinks necessary to make out his case ; the court will not interfere unless he is guilty of oppression. [The same prin- ciple applies to magistrates.] 1 Binn. 46. 3 Binn. 414. 24. A Jew must be sworn on the Old Testament and with his hat on. 2 Sir. 821. A Jew refusing to be sworn as a witness on his Sabbath (Saturday) was fined. 2 D. Zlo. • 25. A Mohammedan must be sworn upon the Koran. 2 Str, 1 104. 26. The evidence of a Gentoo, sworn according to the ceremonial of his own religion, is admissible ; and the testimony of all infidels, who are not atheists, is to be received. 1 .Stk. 21. 27. The usual form of administering the oath has frequently been dispensed with, as where Dr. Owen, vice-chancellor of Oxford, refusing to lay his right hand on the book and kiss it, was permitted to have the book held open before him, and to lift up his right hand. In like manner, a Scotch covenanter has been permitted to swear by holding up his right hand ; for as Lord Chief Baron Parker observes, " oaths are to be administered to all persons according to their own opinions, and as it most affects their consciences.- 1 Atk. 42. 2 Cow. 436. X. When a Party to a Suit may be a WitnSI. 1. There is no such rule of law as that rfie plaintiff ot defendant in an action cannot be a witness. If he is not interested in the event of the suit, nor liable for costs, a party is a good witness — thus, the assignor of a bond or other chose in action, or a trustee, who is a mere nominal plaintiff, is a competent witness in an action brought for the use of the assignee, or cestui que trust, if his liability for costs is removed. 3 Binn. 311. 6 Binn. 481. IS.^E. 25. 5^.5'. ^ S. 407. 2. A plaintiff is always admitted to prove the death of subscribing witnesses, in order to let in proof of their handwriting, 2 2). 1 16 ; or the loss of an instru- ment of writing in order to let in evidence of its contents, its existence having been previously established by other proof. 1 D. 424. 3 F. 442. 3. Any person who, at the time of the commencement of the suit, is entitled to a portion of the money sued for, however his interest may have been acquired, is liable to costs, and incompetent to testify, although he may have released his interest. 3 P. R. 178. 4. If different persons, either before or after salts brought, agree to divide among themselves the amounts, if any, that may be recovered, each of them is liable to the defendant for costs. They cannot, therefore,-, be made witnesses, for one another by exchanging mutual releases. The costs of suit must be paid before any of them can be examined. 3 Wh. 370. 5. One who has assigned a claim as a collateral security for the payment of a debt due by him, is incompetent to testify in a suit brought to recover that claim, although released by the person to whom he made the assignment, if it appear that he had previously been discharged under the insolvent laws, and made a transfer for the benefit of his creditors. 8 W^ 39. 6. Upon the trial of an issue affecting a trust estate, a cestui que trust, by a release of his interest, becomes a competent witness: so also if for any other reason he ceases to be a cestui que trust. 5 W. 493. 7. In an action against a warehouseman or forwarding merchant, to recover the value of a lost trunk, the plaintiff is a competent witness to prove the contents of it ; but this rule is limited and controlled by circumstances respecting the nature of the contents ; it will only extend to such articles as are ordinarily necessary for the convenience and use of a traveller. 10 W. 335. 8. In an action by a passenger against a stage-owner to recover the value of a trunk and its contents, cut and carried away from the stage, the plaintiff is not a competent witness to prove that there was money in the trunk, or the amount. 2 W.Sf S. 230. 9. But if the trunk contained only wearing apparel, and such things as are ordi- narily necessary for the convenience and use of a traveller, such as his wife's jewelry, »nd other articles pertaining to her wardrobe ; the plaintiff, or his wife, are competent 222 EVIDENCE. witnesses, to prove not only the contents of the trunk, but also their value. 10 W. 335. 8W.SfS.3e9. 3 Barr, 451. f „ „,»„„j„ , 10. One who has assigned a chose in action to another on account of a precedent debt, is not a competent witness for his assignee in an action against the debtor, unless the chose in action was expressly taken in satisfaction of the precedent debt. 2 jy 121 ll'. The nominal plaintiff in a suit brought for the use of another, who had as- signed the cause of action before suit brought, is an incorapetenU witness to rebut a defence to the original cause of action, unless he be first released by the assignee from the implied warranty which arises in all cases of assignment lor a valuable consideration, that the debt is due. 5 W. Sf S. 435. . , , „ 12. An assignment of a cause of action, which is merely colourable, shall not divest the title of the plaintiff so as to make him a competent witness, whatever its legal effect between the parties may be ; and every assignment is to be deemed co- lourable, when no other motive for it can be made to appear. Ibid. 509. 13. A defendant is not made a competent witness by the fact of his havmg been discharged as a bankrupt after the suit was brought. Ihid. 333. 14. The assignor of a chose in action is not a competent witness for the plaintiff in an action to recover the claim assigned. 7 W. £f S. 144, 317. 8 TV. Sf S. 272. 15. A credit^^r legal owner, who before suit brought, transfers his debt to a third person, wM or without a valuable consideration, whiether the assignment be real or fictitious, is not a competent witness for any purpose connected with the action. 2 Barr, 46. 16. In an action against the county for the destruction of property by a mob, the plaintiflf may prove his ownership and the value of wearing apparel destroyed, but he is incompetent to prove the destruction of his household furniture, &c. 1 Jm. L. J. 427. 1 Barr, 45. XI. MisoEtLANEOus Cases. 1. A witness is incompetent, who has a power-of-attorney to receive the sum recovered, and intends to pay himself thereout a debt due to him from the plain- tiff. 3 Esp. 735. 2. The rule now established in Pennsylvania is, that though a person offered as a witness be subject to the strongest bias, yet if he be not implicated in the legal consequences of the judgment, that is, those consequences which are fixed, certain, and actual, and by which an advantage, not depending on a contingency, is to be gained or lost ; such, for instance, as being entitled to give the verdict in evidence in another suit, on the one hand, or being subject to an encumbrance or duty on the other, he is competent. 16 S, fy R. 195, 196. 3. Where a witness is interested in either event of a trial, and the prepon- derance cannot be weighed, it goes to his credit and not to his competency. 4 W. 15. 4. There are two ways of proving a witness to be interested in a cause ; first, by examining him on his voir dire; or secondly, by showing his interest by other evidence. But both these ways can not be pursued at the same time. 1 D. 275. 5. If a witness has been sworn on hiis voir dire, no other evidence to prove him incompetent can be given. But if it should appear, in any subsequent stage of his examination, that he was incompetent, the court will set him aside. 1 P. C. C. 338. 9 S.fyH- 138. . . 6. If one party has proved by evidence aliunde, that a witness is interested, the other cannot offer the witness's own oath to show that he has no interest. 4 S.fyS. 298. 7. An indirect and contingent liability' of a witness is not sufficient to ex- clude his testimony on the ground of interest : it only affects his credibility. 2W.Sr S. 190. 8. A witness is incompetent to testify for a party, if it appear that he is to be paid a debt due to him, in the event of the success of that party. 3 W. 110. 9. A witness is competent to prove, that he himself made personally and directly, and for his own exclusive benefit, the contract upon which the defeads* EVIDENCE. 223 ant is sued ; although he conceives himself bound in honour to indemnify the defendant in case of a recovery against him. 1 Ash. 133. 10. A release under seal to an interested witness imports a sufficient considera- tion to make it valid ; but if without seal, and no consideration is expressed or proved, it must be regarded as without consideration and insufficient. bW.fyS. 38. 11. It is not a good objection to the competency of a witness that he believes himself interested in the event of the suit when he is not so. 'i.W.SfS. ij-it ^ .. ^A r.... non FALSE PRETENCES. 239 or could get a bill discounted, though he knew he could not, is not a false pretence within the act, but rather a breach of pramise, and the false pretence must be the existence of some fact. 1 Chit. Gen. P. 134. A pretence that the party would do an act he did not mean to do, as a pretence to pay for goods on delivery, is not a false pretence within the act, but merely a promise for future conduct, and common prudence and caution would have prevented any injury arising from the breach of it. R. V. Goodall, R. Sf R. 401. See farther R. Sf R. C. C. R. 504 ; C. on Bills, 769, 8th ed. ; 9 B. i^ C. 59 ; Arch, C. PI. tit. Cheating. 3. Wliat has been held to constitute a false pretence within the meaning of the act of I2th July, 1842.— Before the passage of this act no indictment for a cheat could be maintained except at common law, and only when it affected the public. The 21st section of the act of 1842 is in substance taken from the statute 52 G. 3, c. 64, which has received a judicial construction by the courts of law in England to the following effect. That in order to render the offence complete, the false pre- tence must be such as is calculated to deceive and impose upon a man of common caution and prudence in the affiiirs of life, when there is an intention on the part of the purchaser to defraud — and the credit must be given on such pretence. The iw tention to defraud the seller must exist at the time when the credit is giyeri, and the purchaser obtains the property. If the original motive was honest — if it was the intention of the purchaser to pay for them, and his design afterwards was changed, and became fraudulent, thegi the case is not within the penalty of the law. But the evidence of such fraudulent intent may be deduced from his subsequent conduct, as well as acts apparent at the time of the transaction itself. Com. v. Hickey, 3 Penn. Law. Jour. 86; Com. v. M'Crossin, 3 Penn. Law Jour. 219; Com. v. Hutchinson, 2 Penn. Law Jour. 241. (4) (4) 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 of 1842 ; but the false pre- tences in the contemplation of the statute, are such as assert the existence of same fact calculated to impose upon a man of common and ordinary caution, which false pretence creates the credit given to the accused. 2 Penn. L. J. 241. The purchase 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. 3 Penn. L. J. 86. A false pretence, within the statute, must re- late to past, and not future events. 19 Pick. 179. But the false assertion of possession of money or property, on the credit whereof goods are obtained, is within the act. 2 Barr, 163. 6 Penn. L. J. 272. " It is certain that a fraudulent misrepresentation of the party's means and resources is within the English statutes, and a fortiori within our own." 2 Barr, 164, ^er Gibson, C. J. 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 as a premium {Thacher's C. C. 24); where a person obtained goods under the false pretence that he lived with and was employed by A. B., who sent him for them (12 Johns. 292) ; falsely to represent the notes of a broken bank to be good. 4 Metcalf, 48. But an indict- ment will not lie when the money is parted with as a charitable donation, although the pretences moving the gift are false and fraudulent, as where the defendant pretended he was deaf and dumb, and obtained alms by that means, and by a fiirged certificate. 17 Wend. 351. And where a person got possession of a promissory note, by pretending he wanted to look at it, and then cairied it away, and refused to deliver it to the holder, it was held to be a mere private fraud, and not punishable criminally. 14 Johns. 371. 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 instrument, it was held indictable. R, Sf R. 81. 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. Ibid. 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, 1 Eng. L. Sf Eq. R. 537. s. c. 14 Jur. 465. 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 pre- tence. 1 Eng. L. Sf Eq. R. 550. s. c. 14 Jur. 557. 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 tjjeir premises fbr 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, tliat this did not amount to larceny, but was a false pretence within the statute. 1 Eng. L. Sf Eq. R. 579. n. c. 14 Jur. 1123. But a mere naked lie, in the transaction of business, does not constitute 240 FALSE PRETENCES. VIII. Meaning of the Words "obtait^from any person any money, personal property, or other valuable things. The words "other valuable things," include bonds, mortgages, 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. 3 Ch. Cr. Jmw, yy». The obtaining one thing under a false pretence is withm the act, though "things is used here in the plural, for towards the end of the section the words " other thing so obtained" is used in the singular. (5) IX. The summary of the law therefore on the subject of cheats, frauds, and false pretences, seems to be that at common law those frauds and cheats only were in- dictable which affected the public at large, but that by sundry British statutes, the substance whereof has been incorporated into the Pennsylvania act of July 12, 1842, section 21, frauds and cheats on individuals by means of any kind of false pretence, whereby any kind of valuable property may be obtained, are rendered criminal in Pennsylvania, provided the intent to cheat or defraud another be evident. X. False Pretences under Act of 7 Geo. 4, c. 29, s. 53. By this act, " if any person by any false pretence obtain from any other person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same," &c. &c. It was held that to obtain money under a promise to advise a bill, but with a fraudulent intent to appropriate it to the party's own use, and not to the purpose for which it was advanced, is within this act, if the statements made by the prisoner, and which induced the party from whom the money was obtained to part with it, were false. XI. But a mere breach of promise will not constitute an offence within the act ; nor a mere naked lie ; nor a breach of warranty. Crossley's Case, 2 Lewins Crmm Reports, IQi. R. w. Goodhall, 1 B. 4- fi. C. C. 461. R. «. Wakeling, fi.^ K. C. a, cited 2'l,ewm's C. R. 167, note; R. v. Codrington, I C. Sf P. 661.(6) 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 jury to jus- tify the finding of a bill, [or to the justice to justify a binding over.] Judge King's Charge to the Grand Jury, Qvarter Sessions, Phila., February 4, 1850. And see Vaux's Dec. 80. Ibid, 101. Ibid. 152. (5) 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 8 Barr, 360. If the defendant had obtained any money or merchandise, or any thing of value from the prose- cutor, 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 fraudulent misrepresentations, and witliout 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 tokej} or pretence : it was a fruitless attempt to pay and discharge an old account Ibid. 264. If the subject-matter of the charge be land, and the title to it, and the depriving the owner of it by cheating, the offence is not indictable at common law, or under the statute. It would be nugatory to prepare a penalty for obtaining property which the offender cannot possess, if ob- tained by fraud, and which he cannot remove from its actual location. 7 Penn. L. J. 362. (6) A professed intent to do an act which the party did not moan to do, is the only species of false pretence to gain property which is not indictable. 2 Barr, 164. A representation that the party could or would do a particular act, as tlial lie could or would get a bill discounted, tlioug*) he knew he could not, is not a false pretence within the act, but rather a breach of promise, and the false pretence must bo of the existence of some fact 1 Ch. Gen. Pr. 124. 2 Penn. L.J. 245. FEES. 241 iFrcs. I. Penalty fer taking greater or other fees than are allowed. II. A bill of particulars required. III. Sheriffs' and constables' poundage al- lowed. IV. Aldermen, justices, and constables' fees. V. Judicial authorities. Fees are certain perquisites allowed to officers who have to do with the adminis- tration of justice, as a recompense for their labour and trouble. Bac. Mr. I. Act of March 28, 1814. Purd.i94; Bunt 316. Sect. XXVI. If any officer whatsoever shall take greater or other fees than is herein 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 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 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 service not specified in this act, or some other act of Assembly, it shall be considered : a misdemeanor in office. 1 S. ^ B. 505. b S. Sf R. 44. 4 Rawle, 162. (1) II. Sect. XXVII. 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. III. Act of March 18, 1816. Purd. 495. Sect. I. In all cases, where any sheriff, or constable, upon any execution, to him delivered, to be executed, shall not sell, either real or personal estate, for, or recover, and receive, the whole amount of the debt and interest, mentioned in any such exe- cution, he shall be allowed to receive, take, or retain, commissions, or poundage, on the amount of the sum, by him, actually recovered, or received, and no more ; any construction heretofore given to the act to which this is a supplement to the contrary notwithstanding. 3 S. Sg R. 549. 2 Binn. 137. 1 S. k R. 320. 1 Binn. 97. 2 Cow. 422. IV. Aldermen and Justices op the Peace. (2) Purd. 490. Dunl. 312. Dolls. Cts. Information or complaint on behalf of the commonwealth, for every ten words 1 Docket entry of action on behalf of the commonwealth - - - - 12^ (1) By act of 22d February, 1821, all officers whose fees are regulated by that act, or by. the act of 1814, are required to make fair tables of their respective fees, and tb publish and keep up the same, in some conspicuous place, in their respective offices, for the inspection of all persons having business therein, under a penalty of ten dollars to any person aggrieved, with double the amount of any excess of fees paid by such person to him. Purd. 505. Durd. 373. The same act provides that it shall be lawfiil for the recorder of deeds and register of wills to receive the fees for recording th'e same at the time the deed or deeds, will or wills, are left at his office for recording. Ibid. The act of 94th Aprilj 1829, authorizes justices, on the issuing of an execu-- tion, to endorse thereon for collection the fees for the return thereof, as well as for issuing the fcauie. Purd. 699. Dunl. 490. And by act of 11th April,' 1850, it is provided that nothing in. the act of 1814 shall be deemed to impose on 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. Purd. 1827. (2) This section and the 15th sect, of the act of 1814, are repealed as to the aldermen, ,juslices,=, and constables out of the city and county of Philadelphia, and cities of Pittsburgh and Allegheny. . The fees of justices of the peace and constables thoughout the state (with the exception of the; city and county of Philadelphia, and cities of Pittsburgh and Allegheny) are regulated by the: Q ^ 242 FEES. Warrant or mittimus on behalf of the commonwealth - 7 . ' Writing an examination or confession of defendant, or a deposition, tor every ten words .------"""" Administering any oath or affirmation - - -."" " " Taking a recognisance in any criipinal case, and returmng the same to court^ Entering judgment on conviction for fine - - - Recording conviction or copy thereof, for every ten words . - - Warrant to levy fine or forfeiture -------- Rail-piece and return, or supersedeas ------- Discharge to jailer -------- Entering discontinuance of case of assault and battery - - - - Entering complaint of master, mistress, or apprentice - - - - JNotice to master, mistress or apprentice ------ DoUs. cin 25 1 6 20 m 1 25 19 19 25 12| 19 a 0th and 11th sections of the act of 22d February, 1821, (Purd. 502, Dunl. 369,) which are at Lfollows : Sect. X. The fees to be received by aldermen 'For information or complaint on behalf of . the commonwealth, for every ten words 1 '• Docket entry of action on behalf of the ■commonwealtli Warrant or mittimus on behalf of the commonwealth Writing an examination or confession of defendant, for every ten' words - Administering oath or affirmation 'Taking recognisance in any criminal case, and returning the same to court 'Entering judgment on conviction for fine ' Recording conviction or copy thereof, for every ten words Warrant to levy fine or forfeiture Bail piece and return, or supersedeas Discharge to jailer Entering discontinuance in case of as- sault and battery .... Entering complaint of master, mistress or apprentice . - Notice to master, mistress or apprentice Hearing parties and < discharging com- plaint . . . - - Jidding inquisition under landlord and tenant act, or in case of forcible entry, for each day to each justice Precept to sheriff, for each justice . Recording proceedings, to each justice . Writ of restitution, to each justice Warrant to appraise damages Warrant to sell strays .... Warrant to appraise swine, entering re- turn, advertising, &c. .... Entering action in civil case Summons, capias or gubpeena, each For every additional name after the first AH witnesses'. names to be put in one subpoena, utiless separate sufififfinas be required by the party. ^Subpoena duces tecum - - • .Entering return of summons and quali- fying constable lEnterihg capias and bail bond lEvery continuance of suit . . - "Trial and judgment, in case of a defence made by defendant or defendants Entering judgment by confession - Investigating plaintiff's claim, and enter- ing judgment by default . Taking special bail .... 6i ■12i 1 3 20 8- 1 20 12i 12j^ 12J 8 12i 20 00 25 37i 25 18J 75 6i 9 2 15 8 4 6i 25 6J 121 8 and justices of the peace, shall be as fellows : Entering satisfaction, to be charged only when an actual entry is made on the docket ....... 6^ Entering amicable suit - - - 6j Entering rule to take deposition of wit- nesses ...--- 6J Rule to take depositions ... 8 Interrogatories annexed to rules &r tak- ing depositions, for every ten words . 1 Entering return of rule - - - 6^ Entering rule to refer . - - - 6i Rule of reference .... 8 Notice to each referee .... 3 Written notice to a party in any case - 8 Entering report of referees and judgment thereon ....... 6i Execution ...... 12J Entering return of execution on stay of plaintiff, nullaibona and mm est inven- tus, or otherwise .... 6 Entering satisfaction or discontinuance 3 Scire facias, in any case . . - ISj Opening judgment for rehearing . . 8 Certificate to prothonotary, or copy of judgment in each case . . 1^ Return of proceedings on certiorari or appeal, including recognisance - - 37^ Receiving the amount of a judgment be- fore execution,' or where an execution has issued and special bail has been aAerwards entered within twenty days after judgment, and paying the same over, if not exceeding ten dollars . 10 If above ten and not exceeding forty dollars 13} If above forty dollars .... 25 Every search where no service is render, ed, to which any foe or foes are at. tached ...... 6i Entering complaint in writing in case of attachment, and swearing or affirming complainant ..... 15 Attachment ..... 18} Entering return and {^pointing free- holders ...... 9 Advertisements,. each .... 12 J Order to sell goods - . . . ISJ Order for the relief of a pauper, each justice ...... 20 Order for removal of a pauper, each ius. lice- - ...... ^0 FEES. 243 Hearing parlies and discharging complaint ...... Holding inquisition under landlord and tenant act, or in case of forcible entry, each day __.------.. Precept to sheriff -- .-.-____ Recording proceedings - --._... Writ of restitution .-----.-. Warrant to appraise damages ----- i . Warrant to sell strays - - - -. - - -•- Warrant to appraise swine, entering return, advertising, &c. - - - Entering action in civil case ..---..-. Sutnmons, capias or suipcena, each - - .... Every additional name after the first ..--.-- Dolls. CIS. ■ 25 50 50 00 50 25 25 00 12| 12| 3 Order to seize goods for maintenance of wife and children Order for premium for wolf or fox scalps, to be paid by the proper county Every acknowledgment or probate of deed, or other instrument of writ- ing - - - Taking and signing acknowledgment of indenture of an apprentice, for each indenture Assignment and making record of inden- ture - - - - Cancelling indenture . . - . Comparing and signing tax duplicates, each justice .... For marrying each couple, making re- cord thereotj and certificate to the par- ties - - . . - Certificate of approbation of two justices, to the binding an apprentice of a per. son by overseer or director of the poor, to each justice ... 18| m 12i 18} 6i 25 1 50 181 Certificate to obtain land warrant, to each justice .... Swearing or afiirming county commis- sioner, assessor, or other township offi- cer, and certificate thereof, to be paid by the county - . . Each alderman for each day's attend- ance at the mayor's court in the city of Philadelphia, to be paid by the county, and no bench fees shall be charged against the county The fees for services under the laws of the United States, shall be as follows, viz. For certificate of protection - For certificate of lost protection - For a warrant ... For commitment ... Summons for seamen in admiralty case Hearing thereon, with docket entry Certificate to clerk of District Court to issue admiralty process 37J 12i 1 20 374 m 181 18| 18S 37i Sect. XI. The fees to be received by constables, shall be as follows, viz. : Executing warrant on behalf of the com- monwealth - - 25 Conveying to gaol on mittimus or war- rant - - - - 374 Arresting a vagrant, disorderly person, or other offender against the laws, (without process) and bringing before a justice 37 J Levying fine and forfeiture on a warrant 18J Taking the body into custody on mitti. mvs, when bail is afterwards entered before the prisoner is delivered to the jailer - - - 18} Serving subpoena ■ . - 10 Serving summons, notice on referee, sui- tor, master, mistress, or apprentice, personally, each - .8 Serving by leaving a copy - - 10 Executing attachment -. - 18| Taking bail bond on capias, or for deli- very of goods - - . - 12 J Arresting on capias - - 18| Notifying plaintiff where defendant has been arrested on capias, to be paid by plaintiff 9 Executing landlord's warrant, or serving execution - - - 18| Taking inventory of goods, each item - 1 Iievying or distraining goods, and selling the same, for each dollar not exceeding thirty - -. 4 For each dollar above fliirty And one-half of the said commission shall be allowed where the money is paid after levy without sale, but no commis- sion 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 ere- ditor. Advertising the same . . . - Copy of vendue paper, when demanded, each item ... Putting up notice of distress at mansion house or other public house on the pre. mises - - - Serving scire facias, personally Serving by leaving a copy Executing a bail-piece ... Travelling expenses on an execution re- turned nulla bona and non est inventus, where the constable has been at the defendant's last residence, each mile circular - - - Executing order for removal of pauper Travelling expenses in said removing, each mile circular - Travelling expenses in all other cases, each mile circular, counting from the office of tlie justice to the house of the defendant, or where the writ or pro- cess may be served, and back again - 37i 10 10 124 10 3 37J 10 244 FEES. Dolls. CU. Ail witnesses' names to be put in one suhpcem, unless separate subpcenas shall be required by the party. Subpamas duces tecum ..,-----" ^^ Entering return of summons and qualifying constable - - - - 18s Entering of capias and bail bond ------- o Every continuance of a suit "■""''*"" ^^ Trial and judgment -------••* *p^ Eiitering judgment by confession - - l*i Talking special bail .------•'-■ I*i Entering satisfaction ----------6 Entering amicable suit --------- 12? Entering rule to take deposition of witnesses 6 Rule to take depositions --------- 12^ Ip^terrogatories, for every ten words ..-----1 Entering return of rule --------- 6 Entering rule to refer ---------- 121 Rule of reference ---------- 12$ Notice to each referee .---------6 Notice to a party in any case -------- 12$ Entering, report of referees and judgment thereon ----- 12^ Execution ----- 19 Etitering return of execution on stay of plaintiff, nu//a 6ona and non est inventus, or otherwise ---------12$ Entering satisfaction or discontinuance -...-. g Scire facias, in any case ---------25 Opemng judgment for a re-hearing ------- 13J Return of proceedings on certiorari or appeal, including recognisances - 50 Certificate to prothonotaryi or copy of judg'ment, in each case - - 25 Receiving the amount of a judgment before' execution, or where an execu- tion has issued, and special bail, has been afterwards entered within t,wenty days after judgment, and paying the same over^ if not exceeding ten dollars ---.-------. 12| If above ten and not exceeding forty dollars - - . - -^ 25 If above forty dollars -----.---- 37^ Every search where no other service is rendered, to which any fee or fees are attached ----.------ - 121 Entering complaint in writing in case of attachment, and swearing or affirming complaint - - -----..-. 19 Attachment --..---...-. 25 Entering return^ and appointing freeholders ------ 12| Advertisements, each ..--..--- 125 Orders to sell goods ------..--19 Order for the relief of a pauper ----...-. 25 Order for removal of a pauper - - - - . - - -100 Order to seize goods for maintenance of wife or children - - - 25 Order for premium for wolf or fox, soalps, to be paid by the proper county 12J Every acknowledgment or probate of a deed or other instrument of writing 25 Taking and signing, acknowledgment of indentures of an apprentice, for each indenture -— -----..--' , 25 Assigning and making record of indenture -■-.-- 25 Cancelling indenture -------... I2i Cpmparing and signing tax duplicates -------60 Marrying each couple, making record thereof, and certificate to the parties 3OO Certificate of approbation of two justices to the binding as apprentice of a person by overseer or director of the poor 50 Certificate to obtain land warrant 5O Swearing or affirming county commissioners, assessors, or other tovimship officer, and certificate thereof to be paid by the county - - - 25 PEES. 245 Dolls, cts Each alderman, for each day's attendance at the mayor's court, to be paid by the county, and no bench fees shall be charged against the county 1 50 The fees to be received by justices and aldermen for services rendered under the laws of the United States shall be as follows, viz. : for Certificate of protection ----50 Certificate of lost protection 25 A warrant 25 Commitment 25 Summons for seamen in an admiralty case 25 Hearing thereon, with docket-entry 50 Certificate to clerk of District Court to issue admiralty process - - 35 By the second section of " an act relative to landlord and tenant," passed 3d April, 1830, {Purd. 1021, Bunl. 504,) it is enacted that, " The following fees, in addition to the usual mileage, and none other, shall be demanded and received by the aldermen, justices, and constables, for doing and performing what is here enjoined on them, viz. : To the aldermen and justices, for issuing precept to the lessee, each justice 125 For hearing and determining the complaints, and all other services ren- dered therein 50 For recording proceedings, each 50 For issuing and receiving returns of writ of restitution, each - - - 25 For the constables, for serving precept and returning the same - - 25 For executing the writ of possession and returning the same - - - 50 When the rent shall be received from the lessee, by the constable, such com- mission, as is now, by law, allowed on writs of execution." Constalh. (3) Purd. 492. Dunl. 314. Executing warrant on behalf of the commonwealth - , - - - 371 Conveying to jail on mittimus or warrant STj Arresting a vagrant, disorderly person, or other offender against the laws, (without process) and bringing before a justice 25 Levying fine or forfeiture on a warrant 25 Taking the body into custody on mittimus, where bail is afterwards en- tered before the prisoner is delivered to the jailer - - - - 25 Serving subpoena igi Serving summons, notice on referee, suitor, master, mistress, or apprentice, personally, each j2^ Serving by leaving a copy jgi Executing attachment ---.......25 Arresting on capias 25 Taking bail bond on capias, or for delivery of goods .... 12J Notifying plaintiff where defendant has been arrested on capias, to be paid by plaintiff 12^ Executing landlord's warrant, or serving execution - - - - 25 Taking inventory of goods, each item ...... j Levying or distraining goods, and selling the same, for each dollar not ex- ceeding thirty dollars -----.... q For each dollar above thirty dollars 4 And a half of the said commission shall be allowed where the money is paid after levy without sale, but no commission shall, in any case, be taken on more than the real debt. Advertising the same ---....... wi Copy of vendue paper, when demanded, each item .... 1 Putting up notice of distress at mansion-house or other public place on the premises J2' Serving scire facias, personally 12* Serving by leaving a copy , j2i (3) See the note, p. 24T 246 FEMALE. Dolls, cto. Executing a bail-pjece ^^ Travelling expenses on an execution returned nulla bona and non est in- ventus, where the constable has been at the place of defendant's last residence, each mile circular 3 Executing order for removal of a pauper - 50 Travelling expenses in said removing, each mile circular - - - 10 Travelling expenses in all other cases, each mile circular ... 3 V. 1. It seems the plaintiff is liable to the officers for their fees where they cannot be procured from the defendant. 4 Binn. 147. 2. An indictment [or a civil proceeding] against a justice of the peace for re- fusing a copy of his proceedings, ought to state a previous tender of his fee for that service ; and the want of it is fatal, b S. fy R- 373. 5 Penn. L. J. 426. 3. A justice of the peace, who has entered two judgments in the same suit, is not entitled to two trial fees, if, on the first day of entering judgment, the defend- ant was not present, and the plaintiff was willing to continue the case : the utmost limit to which his right could extend, would be to demand compensation for in- vestigating the plaintiff's claim, and entering judgment by default, for which the fee bill allows but ISj. cents. 3 P. R. 519. " I incline to the belief that a justice may, in some cases, charge two judgment fees : as in case of a judgment by de- fault, opened for a rehearing, and judgment again rendered on trial; a defence having been made."— Per Rogers, J. Ibid. 4. Where a justice charges ' illegal fees, which are endorsed on the execution, and collected by the constable, the justice is liable for the penalty, although they are not paid over to him. It is not necessary for the justice to make a regular tender of amends, if the other party, by his conduct, dispenses with it, by a previous refusal to accept. Ibid. 5. The act of 21st March, 1772, which requires notice, in writing, to be given to a justice, thirty days before suing out a writ against him, for any thing done in the execution of his office, should be liberally construed, for the protection of justices of the peace. 4 Binn. 24. 6. A justice of the peace incurs the penaUy imposed by the act of 28th March, 1S14, for taking illegal fees, though he supposed, at the time, that the fees were legally demandable, and acted without any corrupt intent. 17 S. Sr R. 75. 7. The notice to a justice of an intended suit for the penalty for taking greater fees than the law allows, need not specify the amount of fees which the justice might legally have taken. Ibid. 8. In an action against a justice of the peace for taking illegal fees, if it appear that he charged and received a greater sum for a specified item of service than he was entitled to, it will not be compensated by his omission to charge as much as he was entitled to for another item of service. 5 W. 477. 9. Nothing less than a tender of fifty dollars, the amount of a penalty upon a justice of the peace for taking illegal fees, is sufficient amends, and available as a defence. 7 W. 491. 10. The recorder of deeds, under the fee bill of 28th March, 1814, can only charge J7u cents for a certificate and seal, and cannot add to it the charge of 121 cents for a search to enable him to give the certificate. If he exacts payment for the latter charge, he incurs the penalty of fifty dollars imposed by the 26th sect, ot the before-mentioned act of Assembly. 4 R. 162. JFemale. 1. No female shall be arrested or imprisoned for or by reason of anv debt con- racted smce the 8th day of February, 1819, nor for any damages recovered for 2. The statutes which exempted women from imprisonment for debt are sup- FERRIES. 247 plied by the act of July 12, 1842, and it is now necessary that women, in order to obtain an appeal or stay of execution, should give the security required by law. Johnson v. Fackney, 3 Penn. L. J. 190. ' 3. There is no feme sole trading in Pennsylvania, but such as falls within the act of 1718. 6 W. 4- S. 495. jftvtit^* II. Informations and warrants against vio- lators of this law. III. Flats with sails to strike their niasts. I. Cutting a ferry-rope made penal, and the owners, on request, to sink their ropes, to allow vessels to pass. 1. Act of February 8, 1766. Purd. 512. Bunl 91. Sect. I. Provides that any person who shall cut any rope stretched across any river or creek in the commonwealth, which is used in drawing the boats carrying travellers over the same, shall, on conviction, forfeit and pay ten pounds, one half to the owner of the rope so cut, and the other half to the guardians of the poor. To prevent obstructions from such ropes, the owners, or ferrymen who shall neglect or refuse to slacken and sink them when required to permit iny vessel to pass, shall, on conviction, forfeit and pay ten pounds. II. Informations and Warrants. INFORMATION FOR CUTTING THE ROPE OF A FERRY, ftf COUNTY, SS. THE Information of B. J., of M county, yeoman, taken on oath before J. R., one of the justices of the peace in and for the said county, the 10th day of April, Anno Domini 1844, who saith, that on the 8lh of April inst., he was standing on the west side of Muddy Creek, In the said county, opposite to the ferry-house of T. C, and saw a certain J. H., of the same county, labourer, with an axe cut the rope stretched across the said creek at the said ferry, and used in drawing the boats carrying travellers over the same. And further saith not. (Signed,) B. J. Sworn and subscribed before J. R., Justice of the Peace. WARRANT FOR CUTTING A FERRY-ROPE. m COUNTY, SS. EJe ffiontTOBiiitoealti) "t S^ennsjUjanta, To the Constable of the Township of U M , in the County of M , greeting: WHEREAS, B. J., of M county, yeoman, hath this day made oath before J. R., one of our justices of the peace in and for the said county, that on the 8th of April inst. he was standing on the west side of Muddy Creek, in the said county, opposite to the ferry-house of T. C, and saw a certain J. H., of the same county, labourer, with an axe cut the rope stretched across the said creek, at the said ferry, and used in drawing the boats carrying travellers over the same. You are, therefore, hereby commanded to take the said J. H. ana bring him before the said J. R. forthwith, to answer the said charge, and further to be dealt with according to law. Witness the said J. R., at U M township aforesaid, tha lOth day of April, A. D. 1844. J. R., Justice of the Peace. [seal.] Note. — The defendant being brought before the justice must be dealt with as other per- sons charged with penal offences. He must be discharged, give bail for his appearance, or be committed to prison, and the witnesses bound to appear and give evidence at the next session of the court of Quarter Sessions of the proper county. INFORMATION AGAINST THE KEEPER OF A FERRY. M COUNTY, SS. THE information and complaint of A. B., of M county, miller, taken upon his solemn affirmation before J. R., one of our justices of the peace in and for the said county, the 10th day of April, A. D. 1844, who saith that on the 8th day of April inst. he was coming down 248 FERRIES. the river Schuylkill in a shallop loaded with grain, that when he came opposite to &e ferry owned and occupied by T. C, he requested the said T. C, to slacken and sink Aerope extended across the said river at the ferry aforesaid, in such manner as to enable hmi the said A. B. to pass with his shallop in safety, but that the said T. C, absolutely refused so to do. And further saith not. (Signed,) A. i5. Affirmed and subscribed before J. R., Justice of the Peace. WARRANT AGAINST THE KEEPER OF A FERRY. M COUNTY, ss. mie ®«mmontDealt{i of JPennsslbanta, To the Constable of the Township of U M , in the County of M , greeting: WHEREAS, A. B., of M county, miller, hath this day upon his solemn affirmation before J. R., one of our justices of the peace in and for the said county, declared that on the 8th day of April instant he was coming down the river Schuylkill with a shallop loaded with grain, that when he came opposite to the ferry owned and occupied by T. C, he re- quested the said T. C. to slacken and sink the rope extended across the said river at the ferry aforesaid, in such manner as to enable him, the said A. B., to pass with his shallop in safety,.but that the said T. 0. absolutely refused so to do. These are, therefore, to re- quire you to take the said T. C, and bring him before the said J. R. forthwith, to answer the said charge, and to be dealt with according to law. Witness the said J. R., at U— . M aforesaid, the 10th day of April, A. D. 1844. J. R., Justice of the Peace. [seal.] Note. — ^Tbe defendant being brought before the justice is to be dealt with in the same manner as in the case of cutting the ferry-rope, respect being had to the evidence produced. III. Act of February 8, 1766. Purd. 512. Dunl. 92. Sect. II. All flats or boats passing' up and down any river or creek, if navi- gated by sails, shall have their masts to strike or take down when legally required, so as to facilitate the navigation of said river or creek, under a penalty of ten pounds, to be recovered and applied as directed in the first section. INFORMATION AOAINST THE MASTER OF A SAIL-BOAT. M COUNTY, S8. THE information and complaint of A. B., ofM county, yeoman, taken upon oath before J. R., one of our justices of the peace in and for the said county, the tenth day of April, Anno Domini 1844, who saith that he is the owner of a certain ferry upon the river Schuylkill, in the said county, and hath a rope stretched across the same, used in drawing the boats carrying travellers; that this morning C. D., of B county, yeoman, passing down the said river with a boat navigated by sails, did not require him, the said A. B., to raise or sink the said rope, but passed on without taking down and striking the mast of the said boat, whereby the rope of the said A. B. was broken and destroyed to his great damage And further saith not. (Signed,) A. B. Sworn and subscribed before J. R., Justice of the Peace. WARRANT. M COUNTY, ss. ffije fflommontoealtl) of SPennsjlbanfa, To the Constable of the Borough of N , in the County of M , greeting: WHEREAS, A. B., of M county, yeoman, hath this day made complaint on oath before J. R., one of our justices of the peace in and for the said county, that he is the owner of a certain ferry upon the river Schuylkill, in the said county, and hath a rope stretched across the same, used in drawing the boats carrying travellers; that this morning C. D., of B — — county, yeoman, passing down the said river with a boat navigated by sails, did not require him, the said A. B., to raise or sink the said rope, but passed on without taking down and striking the mast of the said boat, whereby the rope of the said A. B. was broken and destroyed to his great damage. These are, therefore, to command you to take the said C. D. and bring him before the said J. R. forthwith, to answer the said charge, and further to be dealt with according to law. Witness the said J. R., atU M aforesaid the tenthday of April, A. D. 1844. ' J. R., Justice of the Peace. [seal] Note — ^The proceedings on the arrest of the defendant, in this case, will be of the same character as those under the first section of this law. FIRE. FIRING OF GUNS OR WOODS. 249 ^ivt, jfivim oi iSiuuH ov SlTootr^* IV. The duty of a constable under this act. V. Firing the woods — how punished. VI. Forms of informations, warrants, or- ders, executions, and docket-entry. I. Provides penalties for setting off, or ex- posing to sale, fire-works, &c. II. Penalty for firing guns, &c., at certain times. III. Who shall he auswerahle for firing, &c., in houses. I. Act of August 26, 1721. Purd. 518. Sect. IV. Provides, that iC any person shall fire any gun or other fire-arms, or shall make, or cause to be made, or sell, or utter, or offer to expose to sale, any squibs, rockets, or other fire-works, or shall cast, throw, or fire any squibs, rockets or other fire-works, within the city of Philadelphia, without the govern- or's special license for the same ; such person being thereof convicted before any one justice of the peace of the said city, shall, for every such offence, forfeit and pay five shillings ; one half to the use of the poor of the said city, and the other half to the use of him who shall prosecute ; which forfeitures shall be levied by distress and sale of the offender's goods as aforesaid ; and for want of such dis- tress, if the offender refuse to pay the said forfeiture, he shall be committed to prison for every such offence, the space of two days, without bail or mainprise : Provided, that such conviction be made within ten days after such offence has been committed. [By the first section of the Act of February 9, 1750-51, (Pard. 518,) the provisions of the above section are extended over every town or borough in the state. Dunl, 86.] II. Act of December 24, 1774. Purd. 519. Dunl. 115. Sect. I. Provides, that if any person or persons shall, [on any thirty-first day of December, or first or second day of January, in every year,] without reason- able occasion, discharge and fire off any hand-gun, pistol, or other fire-arms, or . shall cast, throw, or fire any squibs, rockets, or other fire-works, within the inha- bited parts of this province, [state,] every person so offending, and being thereof convicted, before any justice of the peace, shall, for every such ofience, forfeit, for the use of the poor, the sum of ten shillings, to be levied by distress and sale of the offender's goods and chattels ; and for want of such distress, such offender shall be committed to prison for the space of five days, without bail or mainprise. III. Sect. II. If any person or persons shall willingly permit, or suffer within the time aforesaid, any person or persons to discharge, or fire off, at his, or her, house, any hand-gun, pistol, or other fire-arms, or to cast, throw, or fire any squibs, rockets, or other fire-works as aforesaid, every person so offending, and being convicted, shall, for every such offence, forfeit and pay, for the use afore- said, the sum of twenty shillings, to be recovered in manner aforesaid. IV. [The third section of this act makes it the duty of every constable, under a penalty of twenty shillings, to present every such ofience as above to a justice, or the court of Quar- ter Sessions, together with the names of the offenders. Every offence against this act must be prosecuted within four months.] V. Act of April 18, 1794. Purd. 520. Dunl. 198. Whereas it has been represented that numbers of persons are in the custom of setting fire to the woods, for different purposes, thereby producing an extensive conflagration, injurious to the soil, destructive to the timber and the infant im- provements within the state : Therefore, Sect. III. Where any party is injured, and shall not demand above fifty dollars for his loss or damage, it shall be lawful for such party to apply to any justice of the peace of the county where the offence is committed, who shall issue a warrant, and cause the party offending to be brought before him ; and if it shall appear that the defendant is guilty, then the said justice shall issue his warrant to two or more freeholders, commanding them, in the presence of the defendant if he will be present, to view the place or things damaged, or inquire into the 250 FIRE. FIRING OF GUNS OR WOODS, loss sustained by the plaintiff, and to certify to thfi said justice, upon their oaths or affirmations, what damage, in their judgment, the plaintiff hath sustained by occa- sion of the premises ; and upon the return of such certificate, the said justice is hereby empowered to grant execution for the recovery of the said damages, together with the costs of prosecution. [The party has a right to appeal from the judgment of the justice to the next court of Quarter Sessions.] VI. Forms of Informations, &c. INFORMATION FOR HAVING SET THE WOODS ON FIRE. M — ■- COUNTY, as. THE information of A. B., of M county, currier, taken upon oath before J. R., one of our justices of the peace in and for the said county, the tenth day of April, A. D. 1844, who saith that on the 8th day of April inst. he was reluming home through the woods, belonging to J. B., of U M township, in the said county, and saw T. C, of the same town- ship, innkeeper, passing through the same woods with fire in a shovel; that upon inquiring of the said T. C. what he was going to do with fire- at that time and place, he answered that he was going to kindle a fire as he expected to be out all night hunting ; that the next day this informant heard that the said woods were on fire and a great part consumed, and he verily believes that they were set on fire by the said T. C. And further saith not. (Signed,) A B. Sworn and subscribed before J. R., justice of the peace, April 10, 1844. WARRANT AGAINST ONE FOR HAVING SET THE WOODS ON FIRE. M COUNTY, as. Slie ffiominontoealtS of ^ennsslbanta, To the Constable of the Township of U M ^, in the County of M , greeting: WHEREAS, A. B., of M county, currier, hath this day made information on oath before J. R., one of our justices of the peace in and for the said county, that on the 8th day of April inst, he was returning home through the woods belonging to J. B., of U M^— township, in the said county, and saw T. C, of the same township, innkeeper, passing through the same woods with fire on a shovel, and that upon inquiring of the said T. C. what he was going to do with fire at that time and place, he answered tnat he was going to kindle a fire, as he expected to be out all night hunting ; that the next day this informant heard that the said woods were on fire, and a great part consunied, and verily believes that they were set on fire by the said T. C. You are, therefore, hereby commanded to take the said T. C. and bring him before the said J. R. forthwith, to be dealt with according to law. Witness the said J. R., at U M township aforesaid, the 10th day of April, A. D. 1844. J. R,, Justice of the Peace. [seal.] WARRANT AGAINST ONE FOR DAMAGE DONE BY SETTING FIRE TO THE WOODS. M COUNTY, as. Eie ffiommontoealtlj of J^enitsslbanfa, To the Constable of U M Township, in the County of M , greeting: WE command you, that you take T. C, of the township aforesaid, innkeeper, and bring, him before J. R., one of our justices of the peace in and for the said county, forthwith, to answer J. B. of a plea of demand not above fifty dollars for his loss or damage, occasioned by the said T, C. setting on fire certain woods within the township aforestdd, contrary to the act of the General Assembly in such case made and provided. Hereof fail not. Witness the said .T. R., at U M township aforesaid, the 10th day of April, A. D. 1844. J. R., Justice of the Peace. [seal.^ WARRANT TO FREEHOLDERS, TO ESTIMATE DAMAGES FROM FIRE IN THE WOODS. M' COUNTY, as To L. M., and N. 0., and P. Q., all of U M Township, in the County of M : WHEREAS, T. C, of the township aforesaid, hath been brought before me, J. R., one of the justices of the peace in and for the said county, to answer /. B. of a plea of demand not above fifty dollars, for the loss and damage of the said J. B., occasioned by the said T. C. setting on fire certain woods within the said township, contrary to the act of the General Assembly in such case made and provided ; and whereas, upon examination, it hath appeared to me, by the testimony of two credible witnesses, that the said T. 0. is guilty of the charge exhibited against him by the said J. B. You are, therefore, commanded, in the presence of the said T."C., if he will be present, to view the place or things damaged, and FIRE. FIRING OF GUNS OR WOODS, 251 inquire into the loss sustained by the said J. B., and to certify to me upon your oaths or affirmations what damage, in your judgment, the said J. B. hath sustained by occasion of the premises. Witness my hand and seal at U M township aforesaid, the 13th day of April, A. D. 1844. J. R., Justice of the Peace. [seal.] RETURN OF THE FREEHOLDERS. To J. K., Esquire, one of the justices of the peace of the County of M : COUNTY OF M IN pursuance of your warrant of the 13th instant, we do now return that we have, in th« presence of J. B., the plaintiff, and T. C, the defendant, viewed the fences of the said J. B., which we find considerably injured by fire communicated from the neighbouring woods to the said fence, and do certify upon our oaths that the said J. B. hath sustained damage there- by to the amount of 28 dollars. Witness our hands the 15th day of April, A. D. 1844. (Signed,) L. M. [seal.] N. O. [seal.] P. Q. [seal.] EXECUTION FOR DAMAGES FROM FIRE IN THE WOODS. M COUNTY, ss. Ztlje CommontDealtl) of ^^ennsslbanta, To the Constable of the Township of U M , in the County of M , greeting: WHEREAS, J. B. hath obtained judgment before J. R., one of our justices of the peace in and for the said county, against T. C, of U M township aforesaid, innkeeper, for twenty-eight dollars damages, which he sustained by occasion of the said T. C. setting on fire certain woods within the township aforesaid, together with two dollars and forty-one cents, the costs of prosecution, and the said T. C. having neglected to comply with the said judgment ; we command you that of the goods and chattels of the said T. C. you levy the damages and costs aforesaid, and endorse 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 ex- pose the same to sale by public vendue, you having first 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 T. C. ; and for want of sufficient distress that you take the body of the said T. C. and convey him to the jail of the said county, there to be kept until the damages 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 10th day of May, A. D. 1844. Witness the said J. R., at U M township aforesaid, the 20th day of April, A. D. 1844. J. R., Justice of the Peace. [seal.] J. B. »s. T. C. COSTS. Justice. Warrant . . I2i Docket-entry . 12i Order to Freeholders . Hi Swearing do. 18 Subpcena . 15J Witnesses ex. and aff . 124 Judgment . . 25 Execution 19 Return, &c. . m «1 39J Constable. Serving warrant . 25 Mileage . 18 Order on Freebolders . 374 Mileage . 24 Serving execution . . 25 Mileage . 18 DOCKET-ENTRY. T April 10, 1844, warrant issued. D. R., Constable. C A subpoena issued for two witnesses for plaintiff, both served J by constable, D. R., and by him returned "served on oath." Demand not above $50 for damages occasioned by firing woods, &c. April 10, A. D. 1844, Defendant brought up same day. Plaintiff appears. W. S. sw. ; P. D. H. aff. P. On hear- ing it appears that the defendant is guilty of the charge exhibit- ed against him. Therefore, judgment and warrant issued April 13, 1844, to L. M., and N. O., and P. Q., to view, examine, and certify what damage the plaintiff hath sustained, &c. April 15, 1844, the above named freeholders report that the plaintiff hath /sustained damage to the amount of twenty-eight dollars. There- fore, judgment for plaintiff for twenty-eight dollars. Execution issued April 20th, returnable May 10. Constable's Return. — Money and costs paid into office. D. R., Constable »1 474/ Received satisfaction. J.B. 252 FIXTURES. iFij:ttttes. i. Fixtures are personal chattels annexed to the freehold, either useful to the tenant in his trade, or in the occupation of his house, or ornamental to the house, and which are capable of removal without doing substantial injury to the real estate. Gib. on. Fixt. 6. And, although during the period of their annexation considered as portion of the land, the party fixing them is allowed to reduce them agam to a chattel state. Ibid. 5. Whatever a tenant erects or fixes to the premises demised for the purposes of his trade, or any article which he may fix to the house for his domestic use, and which is capable of being removed without injury to the house, may be removed by him during the terra, (ibid. 22, 33,) but not after its expiration, (/iid. 38, 1 Wh.91,) ex- cept where his estate ceases on an uncertain event, against which he could not pro- vide. Gib. on Fixt. 42. Although fixtures are part, of the freehold, yet where the tenant has a right to sever them, they are so far considered as his personal property, that they may be seized and sold under a writ of execution against his goods and chattels. The exe- cution creditor may exert the power of the tenant, and convert them into goods and chattels, towards the satisfaction of his debt. Ibid. 52. 4 W. 330. But where the fixtures are the property of the landlord, and part of the thing de- mised, they cannot be disannexed from the house under tiie writ of execution. 7 D. Sf E. 9. And so where the freeholder is in possession of a house and fixtures, the fixtures cannot be severed from the house and seized under an execution. 5 JBi ^ Aid. 625. Where the fixtures belong to a lessee for years, he has an interest in them distinct from the land ; but ivhere they belong to the freeholder, his interest in the fixtures and his interest in the land are identical, and they are to all intents parcel of the freehold. . Gib. on Fixt. 53. Although seizahle under an execution, fixtures are not distrainable ; because so long as they continue annexed to the land, they are part of the thing demised, and if not severed during the terra, will revert to the landlord, who cannot seize what is contingently Us property. Ibid. 54. 4 JB. <^ Aid. 206. And so fer is this principle carried, that if the fixture be severed from the freehold for a temporary purpose, it is not distrainable in that its solitary state ; as in the instance of a mill-stone severed from the raill, for the purpose of being picked. Bro. Abr. Distress, pi. 23. 17 S. <^ J?. 413. 2 PT. ^ S. 116. And as a consequence of this doctrine, it would see»i, that where fixtures are seized and severed under. an execution against the tenant, the landlord is not entitled to be paid a year's rent out of the proceeds of the sale. II. 1 . A steam engine set up by a lessee, on a tract of land, for the purpose of carrying on the making of salt, is personal property ; and as such, liable to be seized and sold by his execution creditors. ,4 W. 330. 2 Pet. 137. 2. Where the instrument or utensiMs an accessary to any thing of a personal na- ture, as to the carrying on a trade, it is to be considered a chattel; but when it is a necessary accessary to the enjoyment of the inheritance, it is to be considered as a part of the inheritance. 2 Br. 285. 3. From the adjudged cases on the subject, I think we are warranted in saying that every thing put into, and forming part of a building, or machinery for manu- facturing purposes, and essential to the manufactory, is part of the freehold, and can- not be levied on as personal property. 17 S. Sf R 415, per Smith, J. 2 W. & S. 119. Ibid.S90. 3Stew.Sli. 7/- > -a 4. A steam engine used for propelling a saw-mill, is part of the building. 3 W. 140. So is a copper boiler or kettle, fixed in a brewery. 17 S. Sf R. 413. And so also is a steam engine, with its fixtures, erected by the owner of the iand,jbr the purpose of grinding bark and breaking hides, in the course of his business as a tan- ner. 7 W. 106. 12 JV. H. 205. 5. The criterion of a fixture in a mansion-house or dwelling, is actual and perma- nent fastenmg to the freehold; but this is not the criteritjn of a fixture in a manu- factory or a mill. 2 W.S^S.MQ. FORCIBLE ENTRY AND DETAINER. 253 jffoxtiUt Swtrfi nnH Betaiwer. II. Judicial opinions relative to forcible entry and detainer. I. What constitutes forcible entry and de- tainer, and the manner of proceeding to re- cover possession. I. Although jurisdiction of the title to lands or tenements cannot be exercised by- magistrates, yet where the right to possess is attempted to be acquired or retained hy force, then it becomes a breach of the peace, peculiar in its character, and requires a more speedy interposition than is afforded by the remedies of ordinary courts of law. Possession should follow ownership, and he who by any means obtains posses- sion of property belonging to another, is guilty of a gross wrong in attempting to retain it ; but when the obtaining of it is by violence, the law recognises it as a substantive offence, for redress and punishment of which the law has pointed out substantive sufficient redress. To such an offence the law has given the distinc- tive name of " Forcible Entry,'''' and to the analogous and too-frequently conse- quent offence of similarly retaining possession, is given the name of " Forcible Detainer;" though generally "Forcible Entry and Detainer" is the joint title of the offence, as no motive could well be given for the forcible entry, unless a de- tainer by similar means follows the demand for restitution. Forcible entry is the violently taking possession of lands and tenements, with- out right to enter, by force and arms, or with noises, threats, or other demonstra- tions of violence. Forcible detainer is the violently keeping possession of lands and tenements, where the possessor has no right, by force and arms, or with noises, threats, or other demonstrations of violence, which are sometimes evidenced by having and keeping a large number of persons assembled together for the purpose of taking or keeping possession, by actual force or violence. As early as the year 1700, a law on these subjects was passed, which is still in force. It commences as follows : — " Whosoever shtJl violently and forcibly enter into the house or possessions of any other person, within this province [commonwealth] or territories, being duly convicted thereof, shall be punished as a breaker of the peace, and make such satisfaction to the party aggrieved as the circumstances of the case will bear." Purd. 521. Dunl 37. There is no offence more easily understood and more distinctly described than this is by its title. There can be no construction on the facts ; they must exhibit a violent or actually forcible possession, in a violent manner, or by forcible means, and can only apply to cases of excessive intrusion originally, or wanton retention, where the original entry was justifiable, or even, if unlawful, was not forcible. (1) The offence may be committed by one or more, and all who participate are equally guihy. Thus, where forcible possession is attempted by one, with the assistance of others, either armed or displaying other indications of violence, all present are adjudged to be guilty of the forcible entry ; and properly so, as without such assistance the force of one person would seldfom be attempted to be set up. This offence is the subject of indictment, to be proceeded with as in other cases. Complaint of the injury is made before a magistrate, who, on proper application, issues a warrant, and after having committed or bound over the defendant or defendants for trial; and upon the conviction, or plea of guilty, the court inflict such punishment as is commensurate with the character of the offence, and restore the premises to their lawful possessor. (2) If the forcible detainer is ( 1) In order to constitute a forcible entry, the prosecutor's possession must be quiet, peace, able, and actual ; not a mere scrambling possession ; and the entry must be accompanied by actual fJrce or intimidation. Therefore a man who breaks open the door of his own dwelling, which is forcibly detained from him by one who claims the bare custody of it, cannot b« guilty of this offence. 1 ^h. 140. Unless there be possession in another at the time of entry, it is no offence, whatever may be the degree of force used. Jlddis. 43, 3X5, 355. (2) By the 27th and 28th sections of the hundred dollar act, (Pwrd, 692,) it is provided that all cases arising under the act of 1700, already mentioned, shall be prosecuted in the 254 FORCIBLE ENTRY AND DETAINER. persisted in, the magistrate may commit for the continued breach of the peace, or order such surety for good behaviour until the time of trial, as will msure speedy justice and the prompt abateirient of the nuisance. {S) . j- • But there are other remedies provided bv law, derived from the directions of British statutes, passed and enforced long prior to the settlement of Pennsylvania, and which are recognised as still being of force and validity. The remedy^n these cases is rendered effectual by the statutes of 15 Richard 2, c. 2; 8 Henry 6, c. 9; 31 Elizabeth, c. 11, and 21 James, c. 18, which have been adopted in practice, and are reported by the judges of the Supreme Court to extend here. (4) The remedy is by a written complaint to two magistrates, setting forth, on oatn or affirmation, the wrong complained of, detailing the complainant's estate and right, his expulsion, and also the facts of force and other circumstances as they exist. Forthwith the magistrates may proceed to the place with a posse comitar tus summoned by them, and if the facts are found to be as represented by the complainant, either by view or other adequate proof, and no denial be offered, then the magistrates record the facts preliminary to their further proceedings ; but if denial of the forcible entry and detainer be made, and an issue be tendered in writing, then the magistrates summon a jury, and an examination is had before the magistrates and jury, (as in landlord and tenant cases,) and if the facts are found, then a record is made by the inquest and the magistrates, and when once the record is made, either by the magistrates alone, or by the jury, approved by the magistrates, it becomes firm, and cannot be reviewed in its facts, though a certiorari will lie and remove all proceedings to a higher tribunal, unless an exe- cution be actually served, in which event the writ of certiorari (as in other cases) is not a supersedeas. If the finding of the jury be, in the opinion of the magistrates, insufficient or unsatisfactory, they may set it aside, and need not make a record of it for further proceeding ; and the jury must' find the entry, as well as the detainer, to he forci- ble, else th^r finding is not valid. When, however, the case is established, and its record made, then the magis- trates shall issue process ousting the ejectors and intruders, and restoring the possession to its lawful claimants ; at the same time levying the costs upon exe- cution as in ordinary cases. A nominal fine is also inflicted in England, though the power to do so in Pennsylvania seems to be doubted. These constitute the entire proceedings on the subject, and are but seldom resorted to. The power of the law being generally sufficient to prevent the commission of the offence, it is seldom necessary to invoke its aid for restraint. The violence constitutes a distinct breach of the peace, virhich*is generally sum- marily brought to notice and remedied by a binding over to keep the peace, and in some cases, to appear at the next court of Gtuarter Sessions ; and thus the offence is prevented from progressing to its maturity. The proceedings here sketched axe, first, for the immediate abatement of the injury by llie power of the county, brought into requisition by the magistrate; and, secondly, the judicial proceedings by indictment at common law. Besides the redress thus afforded, the party injured may recover damages in an action of trespass ; it is a well-settled principle of iaw that wherever injury is done by the unlawful act of another, that other is responsible in damages to the party aggrieved. And the record of the magistirate, and conviction upon indictment, in no manner lessen the claim of the party aggrieved for damages. Damages are given as compensation for the injury ; the other proceedings are rather in advance- ment of public justice than private redress. court of Quarter Sessions of the county where the offence was committed, and that warrants may be issued by the justices of the peace and aldermen, respectively, to oblige the offenders to find surety for their appearance at said court, and to be of good behaviour in the mean time, if necessary; and in default of said surety, to commit them to jail to be dealt with according to law. Dunl. 381. (3) The entry and the ddainer are distinct offences, and although both be charged in the same indictment, the defendants may be acquitted of one and convicted of the other. 1 8.&R. 184. There may be a forcible detainer, though the entry was peaceable ; and it is "sufficient if it appear from the indictment that the aggrieved parly was forcibly kept out of possession (4) See appendix, title, " Forcible Entry and Detainer." FORGERY. 255 11. 1. If on an indictment for forcible entry no other force is proved than such as is implied in every trespass, the defendant must be acquitted, as it requires "force and arms, and a strong hand" to constitute the offence. 1 F. 501 1 Smith, 3, 3. On the traverse of an inquisition for forcible entry held before two justices- and a verdict by the jury against the defendant, the justices have no right to asses* damages. \ S. 8r R. 480. 3. The wife of the prosecutor may be examined as a witness to prove the force, and the force only. 1 D. 68. 4. To make an entry forcible, there must be such acts of violence, or such threats, menaces, signs, or gestures, as may give reason to apprehend personal injury or danger in standing in defence of the possession. Addis, Rep. 14. 5. A certiorari is a supersedeas to proceedings in forcible entry. 4 D, 214. 6. The authority of justices of the peace in complaints for forcible .entry and detainer is derived from the act of 1700, against forcible entry, and from the Stat, of 15 Richard 2, chap. 2, and 8 Henry 4, chap. 9, modified by 31 Eliz. chap. II, and enlarged by 21 James 1, chap. 4. 2 Ash. 428. 7. Under the stat. of 15 Richard 2, chap. 2, a justice or justices may make a record of such forcible holding and fine, and commit the oflfender ; but he or they cannot meddle with the possession without the intervention of the jury. Ibid. ■ 8. Although the stat. of 8 Henry 4, chap. 9, makes no mention of the right of a defendant to traverse the finding of the inquest, yet such a traverse may be tendered by the defendant; whereupon a new jury must be summoned for the trial of the traverse, and restitution cannot be made until the defendant is convicted by the second jury, should he think proper to traverse the first finding. Ihid. 9. When from the record returned by the justices, it appeared, that they had, on the complaint of the prosecutor, proceeded to the lands and tenements forcibly entered and held by the defendant, and demanded of him that he should surrender the same, that the prosecutor might be put into lawful possession-; which he refused to do^ and declared his resolution to hold the same against all claims and authority whatever, upon which the justices issued their writ to the sheriff com- manding him at a day and time specified, with the power of the county, to aid them in giving to the prosecutor the lawful possession of the premises, in pursu- ance of which writ the premises were delivered by the sheriff to the prosecutor. Held, by the court, that the proceedings of the justices were illegal and unauthor- ized by law. Ibid. 10. The order to constitute a forcible entry, the possession of the prosecutor must be quiet, peaceable and actual ; not a mere scrambling possession ; and the entry must be accompanied by actual force or intimidation. 1 Ash. 140. 11. An indictment io^c forcible entry may be sustained against a landlord for forcibly ejecting a sub-tenant, after the termination of the tenancy and removal of the principal tenant. 5 Perm. L.J. 119. iFor^etrg. 1. Forgery, at the common law, is an offence in falsely and fraudulently making or altering any manner of record, or any other authentic matter of a public nature ; as a parish register, or any deed, will, or the like. 1 Hawk. 182 — 184. 2. The forgery of any writing which may be prejudicial to -another is indictable at common law. Addis. 34. Ld. Raym. 1461. Vaux's Dec. 47. 3. Any alteration of a genuine instrument in a material part, whereby a new ope- ration is given to it, is a forgery of the whole. Wh. Cr. L. 336. 4. If there be two persons of difierent descriptions and addresses, but of the same name, and one signs his name with the address of the other, for the purpose of fraud, it is forgery. Bayl Bills,, 432. 256 FORNICATION AND BASTAKUK. 5. A man may even be guilty of forgery by signing his own name : thus, where coal being consigned to P., of New York, arrived there, and was claimed by another of the same name who resided there, but was not the true assignee ; and he, know- ing this, obtained an advance of money, on endorsing the permit for the delivery of the coal, with his own proper name; it was held, that this was a torgerj-. 6 Cowen, 72. , •. , 6. If there is a concert between two or more to pass counterfeit notes, or any joint or concurrent action in passing them, the act of one is evidence against the other, and the possession of counterfeit notes by one is the possession of the other. 1 Baldw. 292. ... 7. Passing a paper is putting it off in payment or exchange ; uttenng it, is a declaration that it is good ; with an intention to pass, or an offer to pass it. Ibid. 366. See 1 Eaig. L. ^ Eq. R. 588. 8. The party accused of passing or uttering counterfeit money must be present when the act is done ; or aiding, consenting, or procuring it to be done. If done by consent, all consenting are equally guilty. Ibid. 9. The possession of other counterfeit money by the defendant or a confeder- ate, at the time of passing counterfeit notes, is evidence of the scienter [know- ledge]. Ibid. 10. To utter and pubHsh a counterfeit note of a private unauthorized banker, knowing it to be counterfeit, is an indictable offence. Such notes are also the subject of larceny. 12 S. fy R. 237. 1 1. One receiving a counterfeit note from an innocent person, in payment, and keeping it by him six months, without notice, is guilty of gross negligence, and must sustain the loss. 13 S. ^ R. 318. A Warrant against one charged with Forgery. if COUNTY, ss. SSe ®omnionb)eaIt!) of $enns9lbanfii. To the Constable of the Township of U M , in the County of M , greeting: YOU are hereby commanded to take the body of A. B.,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 of 0. D. of having feloniously altered a certain promissory note drawn by E. F. in favour of G. H., dated April 27, 1840, for $100.67 i, and further to be dealt with according to law; and for so doing this shall be your warrant. Witness the said J. R., at U M , who hath hereunto set his hand and seal, the tenth day of May, A. D. 1844. J. R., Justice of the Peace. [seal.] iFottficotion wati ^mWcn^. I. Acts relating to the offence. II. Judicial decisions. III. Form of a warrant and commitment &r bastardy. IV. Forms of warrants on suspicion of th« murder of a child, and for advising or conceal- ing such murder. I. Act OF 1705. Pitrd. 531. Dml.^'i. Sect. III. Any single unmarried woman having a child born of her body, the »ame shall be sufficient proof to convict such single or unmarried woman of forni- iialion ; and the man by such woman charged to be the father of such child, shall be the reputed father, and she persisting in the said charge in the time of her extremity of labour, or aftervvards in open court, upon the trial of such person so charged, the same shall be given in evidence, in order to convict such person of fornication. FORNICATION AND BASTARDY. 257 Sect. V. If any unmarried woman, absenting herself from the place where she usually lived, shall come into any county within this government, and there bear a bastard child, she shall he liable to be punished in the county where the said child is born, as she should or might have been, had the child been there begotten. And whosoever, within this government, shall knowingly entertain or shelter any such woman without giving notice thereof to some one justice of the peace within three days after her coming into his or her house to lodge, shall forfeit five pounds for every such offence. Sect. VII. If any single woman, being a servant by indenture or covenant, have a bastard child within the time of her servitude, she shall serve such further time beyond the term in her indenture or covenant mentioned, as the justices of the peace in their quarter sessions shall think fit, as a compensation to her master and mistress for the loss and damage they had sustained by reason of her bearing such bastard in the time of her servitude : Provided, it be not more than two years, nor less than one. Sect. VIII. Every person being legally convicted to be the reputed father of a bastard child, shall give security to the court, town, or place where such child was born, to perform such order for the maintenance of such child, as the justices, of the peace, in their sessions, shall direct and appoint. Act of September 83, 1793. Purd. 531. Dunl. 184. Sect. VI. Whereas it sometimes happens that bastard children begotten out; of this state, are born within the state, and others begotten within one of the counties of the state, are born in another county, and difficulties have arisen about ; the place of trial ; and it is reasonable and just that the reputed fathers of bastard ' children should be at the expense of their maintenance : Be it enacted, that in the latter case, the prosecution of the reputed father shall be in the county where the bastard child shall be bom, and the like sentence shall be passed as if the bastard child had been or shall have been begotten within the same county ; and in the former case, to wit, of a bastard child begotten out of the state, and born within the state, the like sentence shall be passed, except in the imposition of a fine or corporal punishment in lieu thereof, which part of the sentence shall be omitted. II. 1. In Pennsylvania the court allow for lying-in charges, and direct pay- ment of a gross sum for support of the child from its birth to the rendition of judgment, and if the person who incurred the expenses is dead, the money may be awarded to his legal representative. 3 F. 39. 2. The period and amount of maintenance of the child is, by statute, in Penn- sylvania, left to the judgment of the Gluarter Sessions, and they may alter their- practice as they find proper. 4 Binn. 541. 3. The practice in Pennsylvania on a conviction is to require the defendant to give security to perform all the sentence, except fine and costs ; for these he is committed till he pays them. Q S. Sf P. 282. 4. Where a man and his wife live together as married persons usually do, a- third person may be convicted of fornication with the wife, but not of bastardy, , unless the bodily impotence of the husband be clearly and fully established. . 1 Mh. 269. 5. Where the husband and wife live separate and apart, it may be shown j either from facts or circumstances, that the husband had not access to the wife. - Ibid. 6. If the husband has access to his wife, no evidence short of absolute impo- tence can bastardize the issue ; but if they live at a distance from each other, so • that access is improbable, the legitimacy of the issue may be made a qiiestioni upon the evidence. 6 Binn. 283. 7. On an indictment for fornication and hastardy, a married woman is a com- petent witness to prove the criminal connection, but not the non-access of thu husband. Ibid. 8. In an indictment for fornication and bastardy, an omission to ^tate the sex. of the child is fatal. 1 R. 142. 258 FORNICATION AND BASTARDY. 9. On an indictment for fornication and bastardy, if a witness testifies that he had illicit connection with the prosecutrix about the time the child was begotten, her ■rompetency as a witness to prove the defendant is the father of the child^ is thereby «« °'^fl ^ffX dealt with accord- said county, to be examined oonoermng the premises, ?n'' '""•". , ,i,_ ,oth jav of Anril. I. Statute against fraudulent conveyances. I III. Judicial decisions. II. Act of 1842. I I. Statute oe 13 Elizabeth, cap. v. Rob. Dig. 295. Sect. II. Provides, that all and every feoffinent, gift, ^ant,- alienatioii, bargain and conveyance of lands, or goods, or of any lease, rent, common or other profit, or charge out of the same, by writing or otherwise ; and all and every bond, suit, judgment, and execution, at any time had or made, or at any time hereafter to be had or made, to or for any intent or purpose before declared, and expressed, [to wit, to delay, hin- der, or defraud erediters and others, of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, S^c.'] shall be from henceforth deemed and taken (only as against that person or persoKs, his or their heirs, successors, executors, administrators, and assigns, whose actions, suits, debts, &c., by such fraudtdent devices and practices, as aforesaid, are, shall, or might be, in any ways disturbed, hindered, delayed, or defrauded,) to be clearly and utterly void, and of none efiect; any pre- tence, colour, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding. Sect. VI. Provides, that this act shall not extend to property conveyed bortd fide, and on good consideration, to any person not having notice or knowledge of the fand. The statute of 13 Eliz., c. 5, relates to creditors only : the statute of 27 Eliz., c. 4, con- tains similar provisiona'for the protection of subsequent bond fide purchasers. Roh. Dig. 298. II. Act OF July 12, 1842. Purd.5&5. Dunl.974:. Sect. XX. Any person who shall remove any of his property out of any county with intent to prevent the same from being levied upon by any execution, or ■who shall secrete, assign, convey, or otherwise dispose of any of his property with intent to defraud any creditor, or to prevent such property being made liable for the pay- ment of his debts, and any person who shall receive such property with such intent, or who shall, with like intent, collude with any debtor for the concealment of any part of his estate or effects, or for giving a false colour thereto, or shall conceal any grant, sale, lease, bond^ or other instrument or proceeding, either in writing or by parolj or shall become a grantee, purchaser, lessee, obligeey or other like party in any such instrument or proceeding, with the like fraudulent intent, or shall act as broker, scri- vener, agent, or -witness, in regard to such instrument or proceeding, with the like intent, such person or persons, on conviction thereof in the court of quarter sessions of the proper county,, shall be deemed guilty of misdemeanor, and shall forfeit and pay a sum not exceeding the value of the property or effects, so secreted, conveyed, or othe^ wise disposed of, or concealed, or in respect to which such collusion shall have taken place, and shall suffer imprisonment not exceeding one year. III. 1. To bring a case within the statute of 13 Eliz. o. 5, the conveyance must be voluntary J it must be made by the owner of the land, he being at the time indebted; and with intent to delay, hinder, and de&aud creditors or others, of their just and law- ful actions, &c. ; and in general the intent will be presumed from the circumstance of the party being indebted. , Where these eircumstances occur the conveyance is void, as well in respect to subsequent, as to prior creditors. 1 P. C. C. 460 464 See 1 ^m- Lead. Cas. 41-79. ' " 2. To render the offence complete, under the act of 1842, the assignment or con- veyance of the property m,ust be with a fra,udulent intent, to prevent the creditor from pursuing his legal means for making his debtor's effects available for the payment o£ FREEHOLDEK. 261 his debts in a legitimate way, conceived at the time of the conveyance. If the tranS' fer was legal, and bond fide, between the parties, if made to give a preference to one creditor over another, it is not criminal. The proper subject for inquiry is not, whether the bargain was a good one, or such a sale as a prudent man would make of his effects; but simply, was the transfer tainted with fraud, or consummated in ini- quity, with a design to injure a creditor. 3 Penn. L. J. 86. iFtrfeftoltret. 1. A FREEHOLDEftis an inhabitant in any part of this province who hath resided therein for the space of two years, and has fifty acres of land, or more, in fee simple, well-seated, and twelve acres thereof, or more, well cleared, or improved, or hath a dwelling-house worth fifty pounds current money of America, in some city or town- ship within this province, clear estate, or hath unimproved land to the value of fifty pounds like money. Act of 20th March, 1725. Purd. 53. Dunl. 77. 3. A judgment obtained before a justice of the peace is sufficient ground to defeat the privilege of a freeholder. 1 D. 436. 3. In order to obtain the stay of execution, provided by the act of 21st March, 1806, the defendant must have a freehold in the county where the judgment is en- tered. 5 Binn., 432. 4. Any encumbrance on a freehold estate is sufficient to deprive a defendant of a stay of execution, under the act of 21st March, 1806. It is not enough that the estate may be considered equal to the judgment, after paying all encumbrances. 6 Binn. 253. 5. If there are two persons concerned in the same transaction upon which a suit is brought, and one of them be privileged from arrest, he being a freeholder, and the other not, the party freeholder is liable to be jointly arrested with the other; for a party privileged from arrest loses' that advantage by his partnership with one who is- not entitled to such privilege. 1 D. 305. 6. If a defendant freeholder, who seeks to avail himself of the privilege arising from his freehold, neglects to suggest it, it would justify the issuing of an execution against him ; but, on the payment of cosf^ accrued on the execution, the magistrate should supersede it, and give the defendant the privilege secured by law. 1 Ash. 407. ' 7. Where a plea of freehold for a stay of execution is entered by a defendant, the plaintiff may issue execution, but at his peril. 2 Miles, 347. 8. If the plaintiff issues execution, notwithstanding the plea, on defendant's mo- tion to set it aside, if the freehold be found sufficient, the motion will be granted, and the plaintiff will be compelled to pay the costs of the execution : if the freehold is found insufficient, the execution will be good. Ibid. 9. On a plea of freehold being entered, the plaintiff may move to dismiss it for insufficiency. Ibid. 10. In determining on the sufficiency of the freehold, the defendant need only show the existence of the freehold affirmatively ; it then rests upon the plaintiff, if he objects, to show its insufficiency, by records and certificates of search as to en- cumbrances, and the like. Ibid. :ffnsiiiVi}tu from ^wstite. I. Constitution of the United States. | III. Judicial decisions. II. Act of Congress. I. Constitution op the United States. Art. IV. Sect. 2. A person charged in any state, with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand 262 FUGITIVES FROM JUSTICE. of the executive authority of the state from which he fled, be denveVed tip, tob. removed to the state having jurisdiction of the crime. II. Act op Congress, of February 12, 1793. Sect. I. Whenever the executive authority of any state in the union, or of either of the territories north, west, or south of the river Ohio, shaU demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled ; and shall, moreover, produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory, as aforesaid ; charging the person so demanded, with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority .making such demand, or to the agent of such authority appointed to receive the fugitive ; and to cause the fugitive to be delivered to such agent, when he shall appear : but if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And all costs and ex- penses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory. Sect. II. Any agent, appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the state or territory from which he or she shall have fled. And if any person or persons shall by force set at liberty or rescue the fugitive from such agent, while transporting as aforesaid, the person or persons so oflending shall, on conviction, be fined not exceeding five hun- dred dollars, and be imprisoned not exceeding one year. III. Judicial Decisions. 1. The right to arrest criminals who had fled from one state to another, was re- 'cognised under the colonial governments before the adoption of the constitution of the United States. It was based upon that great principle of the common law, that when a crime has been committed, any one has authority to arrest the ofiender, with or without a warrant. Since the adoption of the federal constitution, and the pas- sage of the act of Congress in 1793, it has always been the practice, in every state, to arrest a criminal who has fled from justice, and ^^ken refiige in another state, and detain him till a formal requisition can be made by xhe proper authority for his snr- render and removal ; and this, upon the principle of comity between the several states ; each acting under the great principle of the common law just stated. Hyefs Case, Com. Pleas, Phila., February, 1848, before Parsons, J. 2. This right to arrest under such circumstances, has been fully recognised by the Supreme Court, in the case of the Commonwealth v. Deacon. The late Chief Jus- tice, in delivering the opinion of the court in that case, remarks : " I grant, that when the executive has been in the habit of delivering up fugitives, or is obliged by treaty, the magistrates may issue warrants of arrest on their own accord, (on proper evidence,) in order the more efiectually to accomplish the intent of the government, by preventing the escape of the criminals. On this principle, we arrest offenders who have fled from one of the United States to another, even before a demand has been made by the executive of the state from which they fled." 10 S. Sf R. 135; The same point is decided in 4 Harrington, 572, 9 Wend. 221, 6 Penn. L. J- 428, R. M. Charlt. 120. Vav^s Dec. 30. 3. It makes no difference, whether or not the offence charged be a felony hy th« laws of the state from which the party is alleged to be a fugitive. 1 .3m. L. J. 11 • In Pennsylvania, the ordinary practice with the executive is, to issue his warrant of surrender, whenever a requisition is supported by an indictment, duly accompanied by executive averment that the particular offence is a crime in the state where it was committed, and by an aflidavit that the defendant has fled from such state into the one where the warrant is demanded. 6 Penn. L. J. 424. 4 Fugitive slaves are -not embraced, and cannot be demanded under that clause of the constitution which provides for delivering up fugitives from justice ; although GAMBLING AND LOTTERIES. 263 the offence of running away from their masters be punishable by indictment, in the state from which they fled. Ibid. 425. 5. An affidavit to arrest an alleged fugitive from justice, must state positively that the alleged crime was committed in the state from which the party is alleged to be a fugitive, and that the party is actually a fugitive from that state. 1 ^m. L. J. 231. 6 Penn. L. J. 417, 418. 6 Bost. Law Rep. 57. 3 M'Lean, 121. 6. The affidavit, when that form of evidence is adopted, must be at least so ex- plicit and certain, that if it were laid before a magistrate, it would justify him in committing the accused to answer the charge. 6 Penn. L. J. 414, 418. 7. The warrant of removal must show that a demand has been made by the exe- cutive of the state from whence the fugitive fled ; and also that information has been given, either by the copy of a bill of indictment, or by affidavit, charging the fugi- tive with having committed a crime ; which should be stated as it is represented in the indictment or affidavit furnished. If the validity of the warrant is examined on habeas corpus, it ought to appear affirmatively that the governor had jurisdiction of the case, otherwise the warrant is utterly void. Hyer's Case, I .Am. L. J. 430. 8. Where the warrant is duly issued, the courts cannot go behind it ; the only question they can entertain is as to the identity of the alleged fugitive. 6 Penn. L. J. 417. 9. Where a defendant is brought into a state as a fugitive from justice, after ac- quittal, or conviction and pardon, he cannot be surrendered to the authorities of another state as a fugitive, but must be allowed an opportunity to return to the state in which he is domiciled. BanieVs Case, .April 22, 1848, Quarter Sess., Phila., before Parsons, J. 10. Where the governor of one state demands a person of the governor of an- other state, as a fugitive from justice, and the governor of the latter state causes the accused to be arrested and delivered to the person appointed for that purpose by the governor making the demand, such person is not liable for a false imprisonment, by reason of any irregularity in the warrant of arrest. 2 Blackf. 311. (SrAmtiUnfi nxca Eottetriess. I. & IX. Cock-fighting, horse-racing, playing with dice, &.C., for inoney, &c., prohibited, and penalties enacted. II. Penalty on tavern-keepers, &c., for pro- moting games, ^c. III. & VIII. E. O. tables and billiard-tables not to be kept for playing for money. Persons keeping these, &c., not to be licensed as tavern- keepers. IV. Money not recoverable when lost at play, &c. All contracts, notes, &c., to secure bets on plays, &c., void. V. Money, &c., lost and paid at play, &c., may be recovered back. VI. Appropriation of penalties. VII. Insurance of lottery-tickets forbidden. X. XII. All lotteries abolished, and a penalty fi)r exposing tickets for sale, &c. XI. Act for suppression of gambling. XIII. Judicial decisions and authorities. L Act of April 22, 1794. Purd. 533. Bunl. 200. Sect. V. If any person or persons cause to fight any cock or cocks fof money or any other valuable thing, or shall promote or encourage any match or matches of cock-fighting, by betting thereon ; or shall play at any match of bullets in any place, for money or other valuable thing, or on any public highway, with or without a bet ; or shall play at cards, dice, billiards, bowls, shuffle-boards, or any game of hazard or address, for money, or other valuable thing ; every such person so offfcnding shall, upon conviction thereof before any justice or magistrate, as aforesaid, forfeit and pay three dollars for every such offence : and if any person or persons shall enter, start, or run any horse, mare, or gelding, for any plate, prize, wager, bet, sura of money, or other valuable thing, every such person so -offending shall, upon con- viction thereof as aforesaid, forfeit and pay the sum of twenty dollars. 264 GAMBLING AND LOTTERIES. II. Sect. VL If any tavern-keeper, public-house keeper, keeper of a tippling- house, or other retailer of wine, spirituous or other strong drink, shall incite, pro- mote, or encourage any games of address, hazard, cock-fighting, bullet-playing, or horse-racing, whereat any money or other valuable thing shall be betted, staked, striven for, won or lost ; or shall furnish any wine, spirituous liquors, beer, cider, or other strong drink, to any of the persons who shall be assembled, or attending upon any game of address, hazard, or cock-fighting, bullet-playing, or horse-racing, as aforesaid ; or shall permit or allow of any kind of game of address, or hazard, playing, betting, or gaming for money, or other thing of value whatso- ever, either at cards, dice, billiards, bowls, shuffle-board, or any game, device or manner to be practised, played or carried on, within his, or her, dwelling-house, out-house, shed, or place in his, or her, occupancy ; every such tavern-keeper, keeper of a public-house, keeper of a tippling-house, or retailer of wine orspi- rituous liquors, beer, cider, or other strpng drink, who shall be legally thereof convicted before any of the justices or magistrates as aforesaid, or in any court of Gluarter Sessions of the peace, or Oyer and Terminer and general jail delivery, held for the city or county wherein the offence shall be committed, shaU forfeit and pay for every such offence the sum of fourteen dollars : and if such convict be a licensed public-house keeper, or retailer of wine or spirituous liquors, or beer, the license of such person shall be therefrom null and void, and such offender shall be incapable of being again licensed in like manner for one year thereafter; and upon a second conviction of the like offence, such person shall forfeit and pay the sum of twenty-eight dollars, and be for ever incapable of being a public-house keeper, or retailer, as aforesaid, within this state: Provided, that where any such licensed public-house keeper or retailer, as aforesaid, who shall be convicted as aforesaid, before any one justice or other magistrate, shall think himself Or her- self aggrieved by such conviction, it shall and may be lawful for such licensed public-house keeper or retailer, to appeal to the next court of Quarter Sessions of the peace, to be held for the city or county wherein the offence weis committed, (and not after,) which said court shall thereupon proceed, as soon as may be, to hear and determine the said appeal and to affirm or reverse the proceedings had before the said justice or other magistrate, and the determination of the said court shall be final and conclusive. III. Sect. VII. No billiard-table, E. O. table, oj; other device for the purpose of gaming for money or other valuable thing, shall be set up, kept, or maintained in any dwelling-house, out-house, or place occupied by any tavern-keeper, inn- keeper, public-hoijse keeper, retailer of wine, spirituous liquors, beer or cider, whether or not such person have a license to keep a tippling-house, on pain of forfeiting every such billiard-table, E. O. table, or other device, and of forfeiting, moreover, the sum of twenty-six dollars, upon conviction thereof before any justice or magistrate, as aforesaid, or in any court of Quarter Sessions of the peace, or of Oyer and Terminer and general jail delivery, held for the city or county where- in the .offence shall be committed. And the judges of the several courts of Quarter Sessions, upon application to them for a license to keep a tavern or other public house, shall, if they see cause, inquire by the oath or affirmation of witnesses, or otherwise, whether such appli- cant do keep any such billiard-table, E. O. table, or other device for gaming, within his or her diyelling-house, out-house or other place, within such person's occupancy ; and if it does not appear plainly, to the judges aforesaid, that such person, so applymg, hath no such device for gaming, in his or her possession as aforesaid, the said judges shall not recommend such person to the governor for a license ; and no license issued to any person who shall possess as aforesaid, any such billiard-table, E. O. table, or other device for gaming, shall be of any force or avail, but the same shall be void to all intents and purposes : Provided, that the person or persons offending against the provision of this section, shall be en- titled to the like appeal, as is provided in and by the sixth section of this act. IV. Sect. VIII. If any person or persons shall lose any money, or other valu- able thing, at, or upon, any match of cock-fighting, bullet-playing, or horse-racing, GAMBLING AND LOTTERIES, 265 or at, or upon, any game of address, game of hazard, play or game whatsoever, the person or persons who shall lose their money, or other valuable thing, shall not be compelled to pay, or make good, the same ; and every contract, note. Bill, bond, judgment, mortgage, or other security or conveyance whatsoever, given, granted, drawn, or entered into for the security or satisfaction of the same, or any part thereof, shall be utterly void and of none effect. V. Sect. IX. If any person or persons shall lose any money or other thing of value, at, or upon, any game of address, or of hazard, or other play, and shall pay or deliver the same, or any part thereof, the person or persons so losing and pay- ing, or delivering the same, shall have a right, within ten days then next or there- after, to sue for and recover the money or goods so lost and paid, or delivered, or any part thereof, from the respective winner or winners thereof, with costs of suit, by action of debt or case, for the value of the money or thing so lost, founded on this act, to be prosecuted in any court of record, or where the value is under a sum that may be recovered before any justice of the peace within this common- wealth, subject to an appeal as in other cases, in which action, no essoin, pro- tection, or wager of law, nor more than one imparlance shall be admitted, and in which actions it shall be sufficient for the plaintilS* or plaintiffs to allege that the defendant or defendants is or are indebted to him, her, or them, or hath or have received to his, her, or their use, the money so lost and. paid, or converted the goods won of him, her or them, to the use of the defendant or defendants, where- by the action of the plaintiff or plaintiffs accrued to him, her or them, according to the form of this act, without setting forth the special matter. VI. Sect. XII. One moiety of the forfeitures in money, accruing and becom- ing due for anyofTence against this act, shall be paid to the overseers of the poor of the city, borough, or township, wherein the offence shall be committed, for the use of the poor thereof, and the other moiety to the person or persons who shall prosecute and sue for the same; and the inhabitants of such city or other place shall, notwithstanding, be admitted witnesses to testify against any person who - shall be prosecuted for any offence by virtue of this act : Provided, that no person shall be prosecuted or convicted for any offence against this act, unless such prosecution be commenced within thirty days after the offence has been com- -xnitted. VII. By the act of March 2, 1805, {Purd. 535,) heavy penahies are enacted against any person who shall directly or indirectly be concerned in the unlawful sale of lottery tickets, or making insurance on the drawing of such tickets. VIII. Act of March 18, 1816. Purd. 536. Dunl. 328. Sect. I. If any person or persons shall hereafter set up, or expose to be played at for money, or other valuable thing, any E. O. table, faro-bank, or other game or device with cards or dice, or any other game of address or hazard, in any way or manner whatever, every such person or persons so offending, upon conviction thereof in the court of Gluarter Sessions of the county wherein the offence was committed, shall be sentenced to imprisonment, in the jail of said county, for any term not exceeding one year, and shall pay a fine to the commonwealth not ex- ceeding five hundred dollars, at the discretion of the court. IX. Act of March 12, 1830. Purd. 536. Dunl. 499. Sect. I. If any person or persons shall cause to fight any cock or cocks, for money, or other valuable thing, or shall promote or encourage any matc^ pr matches, of cock-fighting, by betting thereon, every such persqn, so offending, shall, upon conviction thereof, before any mayor's court, or court of Gluarter Se^g- sions of the proper city or county, forfeit and pay the sum of forty dollars for, every such offence, one half thereof to the use of the informer, and the other half to the use of the poor of the proper city or county, &c. : Provided, that such information be made within forty-eight hours after the commission of the offence. 268 GAMBLINa AND LOTTERIES. X. By the act of March 1, 183S, (Purd. 537,) the entire abolition of lotteries is declared, and the sale of lottery tickets, or any device in the nature of lotteries, is declared unlawful and made penal. Jhinl. 565. XI. Act of February 16, 1847. Dunl. 1085. Sect. I. If any person shall keep a room, building, arbour, booth, shed or tene- ment, to be used or occupied for gambling, or shall knowingly permit the .same to ie used or occupied for gambling ; or if any person, being the owner of any room, building, arbour, booth, shed or tenement, shall rent the same to be used or occupied for gambling, the persons so offending shall, on conviction thereof, be fined in any sum not less than fifty nor more than five hundred dollars ; and if the owner of any room, building, arbour, booth, shed or tenement, shall know that any gaming tables, apparatus or establishment is kept or used in such room, building, arbour, booth, shed or tenement, for gambling and winning, betting or gaining money, or other property, and shall not forthwith cause complaint to be made against the person so keeping or using such room, building, arbour, booth, shed or tenement, he shall be taken, held and considered to have knowingly permitted the same to be used and occupied for gambling. Sect. II. If any person shall keep or exhibit any gaming table, establishment, de- vice or apparatus, to win or gain money, or other property of value, or to aid, assist oir permit others to do the same ; or if any person shall engage in gambling for a livelihood, or shall be without any fixed residence, and in the habit or practice of gambling, he shall be deemed and taken to be a common gambler ; and upon convic- tion thereof, shall be imprisoned and kept at hard labour in the penitentiary, not less than one nor more than five years, and be fined five hundred dollars, to be paid into the treasury of the county where such conviction shall take place, for the use of common schools therein, to be divided among the accepting school districts in such county, in proportion to the number of taxable inhabitants in each district. Sect. III. If an affidavit shall be filed with the magistrate before whom complaint shall be made of an offence against any provision of this act, stating that the affiant has reason to believe, and does believe, that the person charged in such complaint has upon his person, or at any other place named in such affidavit, any specified articles of personal property, or'any gaming table, device or apparatus, the discovery of which might lead to establish the truth of such charge, the said magistrate shall, by his warrant, command the officer who is authorized to arrest the person so charged, to make diligent search for such property, and table, device or apparatus, and if found, to bring the same before such magistrate ; and the officer so seizing, shall deliver the same to the magistrate before whom he takes the same, who shidl retain possession and be responsible therefor, until the discharge or commitment, or letting to bail of the person charged ; and in case of such commitment or letting to bail of theperson so charged, such officer shall retain such property, subject to the order of the court before Which such offender may be required to appear, until his discharge or conviction ; and in case of the conviction of such person, the gaming table, device or apparatus shall be destroyed, and the property shall be liable to pay any judgment which may be rendered against such person ; and after the payment of such judgment and costs, the surplus, if any, shall be paid to the use of the com- mon schools aforesaid ; and in case of the discharge of such person by the magis- trate or court, the officer having such property in his custody, shall, on demand, ae- liver it to such person. Sect. IV. If any person called to testify, on behalf of the state, before any justice of the peace, grand jury or court, upon any complaint, information or indictment for any offence made punishable by this act, shall disclose any fact tending to criminate himself, in any matter made punishable by this act, he shall thereafler be discharged of and from all liability to prosecution or punishment for such matter or oflTence. Sect. V. It shall be lawful for any justice of the peace, chief magistrate of any rtiunicipal incorporation, or judge of any court of common pleas, upon complaint, Vpon an oath, that any gaming table, establishment, apparatus or device is kept by nny person, for the purpose of being used to win or gain money, or other prpperty, ' by the owner thereof, or any other person, to issue his warrant, commanding any GAMBLING AND LOTTEKIES. , 267 sheriff or constable to whom the same shall be directed, within the proper jurisdiction, after demanding entrance, to break open or enter any house, or other place, where such. gaming establishment, apparatus or device shall be kept, and to seize and-safely keep the same, to be dealt with as hereinafter provided. Sect. VI. Upon return of said warrant executed, the authority issuing the same shall proceed to examine and inquire, touching the sajd complaint ; and if satisfied that the same is true, he shall order the officer so seizing such gaming establishment, apparatus or device, forthwith to destroy the same ; which order the said officer shall jproceed to execute in the presence of said authority, unless the person charged as keeper of such gaining establishment, apparatus or device, shall, without delay, enter into a recognisance in the sum of six hundred dollars, with sufficient sureties, to be approved by said authority, for the appeal of said complaint to the court of common pleas, (1) next to be held in the proper county, conditioned that the defendant will ap- pear at the next term of the court, to which he appeals, and abide the order of such court j and for the payment of the full amount of the fine and all costs, in case he shall be found guilty of the ofTence charged, and judgment be rendered against him in said court. Sect. VII. The officer taking such recognisance, shall return the same to the clerk of the court to which said appeal is ts&en, forthwith, and such clerk shall file the same in his office, and the complaint shall be prosecuted in such court by indict- ment, as in other criminal cases ; and upon conviction thereof, the appellant shall be fined not more than fifty dollars, and shall pay the costs of prosecution ; and such gaming establishment, apparatus or device shall be destroyed. . Sect. VIII. If any person or persons shall, through invitation or device, persuade or prevail on any person or persons to visit any room, building, arbour, booth, shed or tenement, kept for. the use of gambling, he or they shall, upon conviction thereof, be h^ld responsible for the money or property lost by such invitation or device, and fined in any sum not less than fifty and not more than five hundred dollars. Sect. IX. It shall be the duty of a% sheriiTs, constables, and of all prosecuting attorneys, to inform and prosecute all offenders against this act ; and upon refussd thereof, shall pay a fine of not less than fifty nor more than five hundred dollars. ■■ : Sect. X. This act shall be given in charge to the grand jury by the president judge of the court of quarter sessions in the respective counties. XII. Act of March 16, 1847. Dunl 1104. Sect. III. If any person hereafter shall sell, or expose or keep for sale, any lottery ticket, to be drawn in a lottery of any kind, either in this State, oi" any of the United States, or elsewhere, or any device in the nature of a lottery ticket, or any lottery policy, or any paper with letters or figures that evidence the same, or in any way represents the drawing of any such lottery wherever established, or who shall assist in the sale thereof, or act as agent or broker in effecting the sale of the same, on conviction thereof, before any court of competent jurisdiction in this state, shall, for each offence, be sentenced to pay a fine not exceeding five thousand dollars, and to undergo an imprisonment in solitary confinement at labour, either in the state peni- tentiary or county jail and prison, for any period not exceeding three years, at the discretion of the court, and may, if deemed necessary, be required to give bail for his future good behaviour against a repetition of the offence, in a reasonable sum, if the circumstances of the case require it; and the purchaser of any such lottery ticket, or device in the nature of a lottery ticket or lottery policy, or paper as above men- tioned, shall not be held liable to punishment by this or any other law of the state, but , shall be a competent witness in the cause ; and any indictment shall be held good which' charges this crime in the language of the law, without setting forth therein the number or date of the ticket, or the device, or any thing in the nature thereof, or policy, or that which represents the same, or the name of the lottery or where the same is located. (1) The act of 25th April, 1850, provides that the appeal shall be taken to the ooart of Quarter Sessions of the proper county, instead of to the court of Common Pleas, as above directed ; and that all proceedings had under the act in the text, where an appeal has been taken, shall be as valid and effectual, as if the appeal had been therein directed to be taken to the quarter sessions. Pamph. 576. 268 GUARANTY. XIII. 1. Gaming, says Hawkins, is permitted in England upon every possible sub- ject, excepting where it is accompanied by circumstances repugnant to morality, or public policy, or where, in certain special cases, it is restrained by positive statute. Hawk. P. C. But where the playing is, from the magnitude of the stake, excessive, and such as is now commonly understood by the term "gaming," it is considered by the law as an offence, being in its consequences most mischievous to society. 1 Russell, 406. a. A plan or arrangement whereby land or houses divided into lots of unequal value is distributed by chance among the purchasers of tickets or certificates, such purchasers having had no previous interest in the lands or houses, it is a lottery, and prohibited by law. 4 S. Sf R. 151. 3. Lottery tickets come under the denomination of " goods, wares, and merchan- dise," and the price or value of them, if not illegal, may be recovered in the common counts for goods sold and delivered. 2 Wh. 155. 4. But a contract of purchase of a prize lottery ticket, the sale bf which was pro- hibited by law, cannot be enforced by action, nor will the purchaser be entitled to recover in an action for money had and received, upon proof that the seller of the ticket received the amount of the prize money. 1 JV. S^S. l81. Aliter, where the ticket was purchased in another state, whose laws legalized the sale. M'Knight v. Beisecker, Sup. Court, June 6, 1850. 5. From the nature of the evils requiring a remedy, and from the words of the act of 1847, its provisions embrace only those games which are attended with " win- ning, betting, or gaining money or other property." It does not extend to games which are useful in disciplining the mind, or in exercising the body, and in which nothing is either lost by one party, or gained by the other. Such games when con- ducted with propriety — when not kept in connection with public houses — when not used to encourage the dissolute to spend their time and money in idleness and tip-, pling, (thus becoming a nuisance in fact,) are neither forbidden by the common law, nor by the statute of 1847. There is one species of amusement which, as it ap- proaches the line which divides innocence from guilt, it may be proper to consider. Billiards and bowling (the latter more commonly called ten-pins) are frequently used for the purpose of amusement and recreation, and it is customary for the losing party to pay to the proprietor a reasonable compensation for the use of the table, alley, or saloon. In such a case it was held by the Supreme Court of New York, in the People V. Sergeant, (8 Cowen's Reports, 140,) " that paying for the table by the rub is not gaming within the meaning of the law, — that illegal gaming implies gain and loss between the parties by betting ; such as would excite a spirit of cupidity." This decision is fully in accordance with sound principles of interpretation, (under which a penal statute is never extended by construction to cases not plainly witliin its pur- view,) and we adopt it as a true exposition of the law. Lewis' C L. 344. 6. This view of the law appears to have been adopted by the legislature, who, by the act of 10th April, 1849, have provided for the licensing of billiard rooms, and bowhng saloons, or ten-pin alleys. Dunl. 1183. (Sruatanti). 1. A Guaranty is a promise to answer for the payment of some debt, or the per- formance of some duty, in case of the failure of another person, who is, in the first instance, liable to such payment or performance. Fell on Guaranty, 1. 2. In any action brought upon such promise, the consideration for it must be stated and proved. Ibid. 4. 3. Words of doubtful import ought not to receive such a construction as to subject the person using them to pajr the debt of another. 7 Crunch, 69. 4. The word "guaranl'if' is somewhat technical and limited in its signification in Pennsylvania; and where it is employed, the creditor must enforce his remedies against the principal debtor before he resorts to the guarantor ; or else he must show that the affairs of such principal debtor were in such a condition that any pursuit of him would have proved fruitless. Wall, Jr. 149. HAWKEKS AND PEDLEES. 269 5. Bat where one guaranties the payment of a sum of money on a day certaiw,'the preditor, when the period arrives, may sue on the contract of guaranty, without pur-^ suing the principal debtor. Bright, R. 96. 1 M. 276. 1 Perm. L. J. 30. Girard Life Ins. Co. v^ Finley, Dist^ Court, June 8, 1850, 7 Leg. Int. 102. 6. .'-'It is settled that the word 'assign' implies no guaranty." , 17 S. Sf R. 502. 7. B. gave a bond to A., conditioned to pay $100 on the 1st of April, 1810, on which C. made the following endorsement : " IDth April, 1817. I do hereby agree that, the within bond shall be paid in one year after the- above date — witness my hand the day and year above written," signed by G. Held, that without proving a proinise by A. to forbear to sue B., or showing some other consideration, A. could ) not recover from C. on this agreement. 3 P. R. 282. 8. To Partnerships. Attempts have been made to establish the guaranty as an indemnity to the house of trade, rather than to the members composing it. But after many decisions upon the subject, the principles applicable to such instruments seem to be this, that as every partnership ceased to be. the same, if any alteration is made in the parties of which it is composed, so the prospective operations of a guaranty given to a partnership will cease upon any change, either by the death or withdraw- ing of any of the partners, or the addition of the new one, unless the guaranty itself contain some provision, contemplating such change, and continuing its operations to the succeeding partnership. Gow on Part. 147. Act op March 30, 1784. Purd. 929. Sect. II. No person whatever shall follow or employ him, her, or themselves, ia the business or employment of a hawker, pedler, or petty chapman, within this state, until such persons have obtained a recommendation from the justices of the county court, where he, or she, dwells, and shall, have Igiven bond, that such person shall be of 'good behaviour during: the' continuance of. .said license, which license shall continue for one whole year. Sect. III. If any person, not being qualified as aforesaid, shall be found hawking, &c., through any part of this state, to sell goods, or who shall expose to sale any foreign goods, wares, or merchandise, in any of the^ open streets of the city and suburbs of Philadelphia, or in any of the county towns within this state, he, or she, so offending, shall forfeit the sum of ten pounds, one moiety thereof to this state, and the other moiety to the person who sues for the same, to be recovered in any court of record. Sect. IV. Provided, that nothing herein contained shall extend, or be construed to extend, to hinder any person or persons from selling, or exposing to sale, any sort of goods, &c., in any public market or fair, at any time appointed by law for holding the same ; or to hinder any person or persons from carrying about, from town to town, any goods, &c., of the growth, product, or manufacture of this state And if any person hawking, &c., shall refuse to show his or her license to any civil officer, upon demand, such- person shall forfeit and pay the sum of twenty shillings, for the uses as aforesaid, to be recovered before any justice of the peace as debts under forty shillings are recoverable. Act of March 28, 1799. Purd. 930. Sect. I. No person shall be licensed as a hawker, pedler, or petty cliapman, within this state, but such only, as is a citizen of the Ui>ited States, and who from age, loss of limb, or other bodily infirmity, shall be disabled from procuring a liveli- hood by labour ; which disability shall be proven by certificate or certificates from one or more ph3''sicians of respectable character. Sect. II. If any person, not being licensed as aforesaid, shall be found hawking, &.C., through any part pf this state, to sell, or expose for sale, any foreign goods, wares, or merchandise, every person so offending against this act, shall be' liable to 270 HAWKERS AND PEDLERS. a fine of fifty dollars ; or, being so qualified, shall refuse, upon the request of any citizen of this state, to show his license, every person so offending shall be liable to a fine of twenty dollars; or, if any person having a license shall. lend or otherwise dispose of the same to any other person, the person so lending, and the person so receiving the same, shall be liable to a fine of fifty dollars, respectively, which fines shall be recovered and applied as by the act is directed and provided. Sect. III. N'o person licensed for the purpose aforesaid, shall be permitted to sell, vend, or expose for sale, any foreign goods, wares, or merchandise, in any private or public house, or in any of .the open streets, lanes, or alleys, or in any other part or place of the city of Philadelphia, the district of Southwark, or the townships of the Northern Liberties, Moyamensing, or Passyunk, or any of the corporate or county towns of this state, under the penalty of fifty dollars, to be recovered and applied as before-mentioned. 14 S. Sf R. 398. Act op February 6, 1830. Purd. 930. Dunl. 497. Sect. I. No person shall employ himself, or be concerned in the business or em- ployment of hawking or pedling any kind of tin or japanned ware, or clocks, from place to place, without having previously obtained a license so to do, under the pro- visions of the second section of this act ; and if any person shall go from place to place, to sell or expose to sale any such articles without a license so to do, being by him first obtained, such person shall forfeit and pay the sum of fifty dollars ; and any justice of the peace, or alderman, on view, or the information, or complaint, on oath or affirmation, of any other person, shall, and in either case is hereby enjoined to proceed in a summary way against such person so ofiending, to conviction ; and in default of immediate payment, of said forfeiture, to commit him to the common jail of said county, there to be detained until discharged by due course of law ; and every repetition of the said offence shall be considered and punished as a new of- fence ; and every person so employed, who, upon demand, shall refuse to exhibit his license, shall be deemed an oflender against this act ; and one half of the penal- ties, which may accrue under the provisions of this act, shall go to the informer, and . the other half to the county in which they may happen ; and any such informer, notwithstanding his interest, shall be a competent witness. Sect. II. The clerks of the courts of Quarter Sessions of the respective counties of this commonwealth, are hereby authorized to grant separate licenses for one year, under seal of said court, to hawkers and pedlers of tin and japanned ware, and to hawkers and pedlers of clocks, upon satisfactory evidence of the good moral cha- racter of such applicant, he having first produced a receipt from the county treasurer for thirty dollars. By the act of April 2, 1830, (Purd. 931,) the courts of Quarter Sessions are authorized to issue a license to any applicant who shall bring himself within the provisions of the act of March 30, 1784. By the third section of this act it is made the duty of the county treasurers every year to render an account to the Auditor-General, of all moneys received by them for licenses. Dunl. 501. Act of April 16, 1840. Purd. 932. Dunl. 913. This act provides, that no person shall be licensed as a hawker, pedler, &c., but such only as is a' citizen of the United States, and by bodily infirmity disabled from procuring a livelihood by labour, &c. The second section provides, that if any person, not duly licensed, shall be found hawking, &c., he shall be liable to a fine of fifty dollars. Citizens of this commonwealth, however, may hawk goods of their own manufacture. (1) (1) By act of Sth May, 1841, the applicant shall have resided at least one year in the county, and shall produce satisfactory evidence on oath, from at least two respectable practising physi- cians, — who shall Be citizens of the United States, and residents of the county, — ^that suck appli- cant is, in point of fact, by reason of bodily disability, the nature and character of which shall be stated, unable to procure a lirelihdod at his trade, or by bodily labour., Purd. 933. Dunl. 940. Under this act, a certificate that the applicant was affected with " gastro-hepatalgia,'" was held insufficient ; the nature and Character of the disease must be stated, that the court may judge whether the applicant be entitled to a license. 7 Penn. L. Jl S75. HOMICIDE. 271 1. Homicide, or the killing of any human creature, is of three kinds : felonious, excusable, and justifiable. 4 Bl. Com. 177. 2. Felonious homicide is the killing of a human creature, of any age or sex, witli- out justification or excuse. Ibid. 188. It is either murder or manslaughter, ac- cording to the circumstances. Lewis' C. L. 353. 3. Murder, as defined by the common law, is when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and in the peace of the commonwealth, with malice prepense or aforethought, either express or im- plied. 1 .Ash. 289. 4 Penn. L. J. 155. 3 Am. L. J. 299. 4. Express malice, is where the killing is the product of a sedate, deliberate mind, and formed design. Ibid. 5. Malice implied, or in a legal sense, means that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malig- nant spirit, a heart regardless of social duty, and fatally bent on mischief. Ibid. 4. By act of 22d April, 1794, murder, in Pennsylvania, is divided into two de- grees. " All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, rob- bery, or burglary, shall be deemed murder of the first degree." Purd. 861. Dunl. 203. 5. All other kinds of murder shall be deemed murder of the second degree. Ibid. 6. In order to constitute murder in the first degree, it is not only necessary that the act of killing should be wilful, premeditated, malicious, legally unjustifiable and inexcusable, but the act of violence must be specifically directed against life. 2 ./2sA. 41 . 7. Murder in the second degree includes all cases of deliberate homicide, where the intention is not to take life ; of which, homicide by a workman throwing timber from a house into the street of a populous city, without warning ; or of a person ^shooting at a fowl, animo furandi, [with intent to steal,] and killing a man, are in- "stances frequently given. Whart. C. L. 287. 3 .Am. L. J. 299. 8. Manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied. It is of two kinds : 1st. Voluntary manslaughter, which is the unlawful killing of another without malice, either upon sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, not amounting to felony ; 2d. Involuntary manslaughter, where a man doing an unlawful act, not amounting to felony, by accident kills another. Whart. C. L. 224. 9. Excusable homicide is of two kinds : 1st. Where a man doing a lawful act, without any intention of hurt, by accident kills another ; as, for instance, where a man is hunting in a park, and unintentionally kills a person concealed. This is called homicide per infortunium, or by misadventure. 2d. Where a man kills an- other upon immediate attack, merely in his own defence, or in defence of his wife, child, parent, or servant, and not from any feeling of revenge or malice ; which is termed homicide se defendendo, [in self-defence.] Ibid. 10. Justifiable homicide is of three kinds : 1st. Where the proper officer executes a criminal, in strict conformity with his sentence. 2d. Where an officer of justice, in the legal exercise of a particular duty, kills a person who resists or prevents him from exercising it. 3d. Where the homicide is committed in the prevention of a forcible and atrocious crime ; as, for instance, when the deceased was in the act of robbing or murdering another. Ibid. 225. 11. Where a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force ; and even his servant, attendant on him, or any other person present, may, interpose, for preventing mischief; and if death ensues, the party so interposing will be justified. 4 Penn. L. J. 158. 12. When engaged in the suppression of dangerous riots, the sheriff and his as- sistants are authorized to resort to every necessary means to restore the public peace, and prevent the commission of criminal outrages a'gainst person or property. They may arrest the rioters, detain and imprison them. If they resist the sheriff and his assistants in their endeavours to apprehend them, and continue- their riotous actions, under such circumstances, the killing then becomes justifiable. 4 Penn. L. J. 38. 272 HORSE-RACING. Jlct of MarchUa, 1817. Pwrrf. 575. Sect. I. Prohibits any person from entering or starting, or procuring to be .■ntered or started, a,ny horse, mare, or gelding, for the purpose of runnmg a race upon any public road in the city or county of Philadelphia, at any meeting con- sisting of more than fifteen persons, or wilfully riding or procunng a race to be ridden on such public road, under a fine of fifty dollars, upon conviction in any criminal court of record having jurisdiction. Sect. II. Provides that every such horse, mare, or gelding, virilfully made to run a race, shall be forfeited. , -/r j Sect. III. Provides that it shall be the duty of the sheriff, deputy sheriff, and constables, without any special warrant, to seize and secure every such horse, mare, or gelding at the time of the race, or immediately after the same, or upon fresh suit. Sect. IV. Provides that upon the oath or affirmation of two credible witnesses to any judge of the court of Common Pleas, alderman, or justice of the peace, that any horse, mare, or gelding has become forfeited, or liable to forfeiture, by virtue of this act, made within twenty days after the race run, such judge, alder- man, or justice, shall issue a warrant commanding the sheriff of the county to seize and detain such horse, mare, or gelding. Sect. V. Provides that any judge or justice of the court of Common Picas, being first satisfied by the oath or affirmation of two credible witnesses of there being reasonable ground to believe such horse, mare, or gelding so seized, to be forfeited, or liable to forfeiture, may make an order requiring the proper officer to sell at public auction such horse, mare, or gelding, giving ten days' notice of the time and place of sale. . .Set ofFehruary 17, 1820. Purd. 577. Dunl 34a Sect. III. Provides that all wagers laid on the racing of horses, mares, or geld- ings, and every obligation g'iven, shall be utterly void, and of no effect. Sect. IV. Provides that any person may, within two calendar months after he has lost and paid any such wager, recover the same from the winner, with costs. Sect. V. Prohibits any person from contributing to, collecting or asking or desiring any other person to contribute to, or collect any money, &c., to make up a purse, or other thing, to be run for, at any place within this commonwealth, under a penalty of thirty dollars for each offence. Sect. VI. Prohibits any person from printing or causing to be printed, setting up, or causing to be set up, any advertisement of the time and place for such race- ing, or knowingly suffering the same to be set or remain up, in, or upon, his dwell- ing or out-house, under a penalty of twenty dollars. Sect. VII. Provides that the penalties specified in the 5th and 6th sections of this act shall be sued for by the overseers of the poor of the proper township, in the name of the township, within two calendar months after the offence committed. And in case there shall be.no overseers of the poor, then the supervisors of the highways of the proper township shall sue for the same. Sect. VIII. Fixes the compensation of the overseers and supervisors for their trouble, at twenty-five per centum on all sums coming into their hands by virtue of this act. See " Wagers," for judicial authorities. The following charge of Judge Parsons, in the case of the CommonweaUk v. Fran- cis D. Way, tried in the Court of Quarter Sessions of Philadelphia County, on the 30th October, 1849, recommends itself to the magistracy, as containing a clear and lucid exposition of the law on the subject of fast-driving on the public highways. " This is an indictment for an assault and battery. The facts adduced to sustain the offence present a' case which is not of ordinary occurrence. While the princi- ples of law involved are familiar to the court, and have often been laid down to juries by us, in cases which have arisen for rapid and immoderate driving in the city HORSE-RACING. 273 and incorporated districts in the county, this is the first case which has been pre- sented to the Court, charging an individual with a violation of law, by driving his horse in an immoderate and improper manner on any of the great roads and high- ways not in the immediate vicinity of the densely-populated parts of our city and county. " Indictments have been repeatedly preferred against the drivers of omnibuses, hacks, and other vehicles, for driving through the streets of our city at a rapid gait, and thereby inflicting personal violence upon those who are passing along our streets ; and this court has invariably instructed the jury, if they believed an indivi- dual was driving his horses past in a manner so rapid as to endanger the persons of those who were quietly passing along the public streets, and thereby caused personal injury to another, the individual thus driving was guilty of an assault and battery. Nay, we have gone further, and held that if one drove his vehicle in a reckless, care- less and incautious manner, he was responsible for all the consequences which fol- lowed the act. " But the general impression seems to have prevailed in the community, that these principles do not apply in relation to the conduct of individuals on a great avenue like Broad Street. This is a mistake. The law relative to roads and highways is this : All persons have an equal right to pass and repass upon them with their horses, carts, and carriages, or on foot, at their pleasure ; and one has no greater privilege than another relative to their use. And while persons are thus upon the highway, they are bound to drive in such a manner as not to injure others who are passing thereon ; for we must remember that its free use is the same to each. No persons, when travelling upon a great thoroughfare, have a right to race their horses so as to endanger the lives or persons of others passing at the same time. If they do, the law holds them responsible for the injuries which other travellers sustain by such unauthorized acts. Gentlemen who wish to try the speed of their horses should select the race-course, and not encroach upon the liberty which other travel- lers enjoy, who are at the same time passing upon a public road ; nor is there any thing unreasonable in this. For why should one citizen yield his rights, to gratify the sportive tastes of another ? " If one drives his horse at a rapid and immoderate gait along a public road, faster than people usually drive, no matter what motive induces the act, and while thus accelerating the speed of his horse, he injures the person of another, he is guilty of an assault and battery — and if, in so doing, he should cause the death of the indivi- dual injured, he would be guilty of manslaughter. While all are at liberty to travel on the road, and drive as may suit their tastes or convenience, they are responsible for their conduct, if any injury ensues, by departing from the ordinary method in which travellers commonly use the roads. Tiiese views are founded upon the great and fundamental principle of the law, that all have equal rights, and each must use his own in such a way as not to injure his neighbour. " It was contended by the defendant's counsel, that the prosecutor had no right to be riding upon Broad Street with his wife. I regretted to hear this remark. We instruct you that he had an unquestioned right to travel there with his wife. All citizens are at liberty to ride there with their wives and families, and this great and beautiful avenue is not appropriated to any privileged class. You, gentlemen of the jury, may desire to bring your families from the country to the city, along this fine street; it is the great leading road to a number of cemeteries in the vicinity of the city ; funeral processions are almost daily passing along this street ; our citizens are frequently visiting the hallowed resting-places of departed friends ; and to say that this public street is to be exclusively appropriated to sporting gentlemen, is what, will never be sanctioned by this court, nor by the community. The street is open to all who may desire to use it; and every one may enjoy this privilege as he pleases, for the benefit of the air, exercise or pleasure, and can take with him any members of his family ; nor are these rights to be abridged in any respect, to gratify the tastes of any other class of persons who may choose to invade the rights of the ■ public by unlawful acts, or an improper use of a highway common to all the citizens of the State. No such principles can be for one moment tolerated in a court of justice, or in a civilized land. 274 HORSE-STEALING. " If the jury should believe tjiat the defendant, while travelling upon the highway,' at the time alleged, drove his horse at an improper and immoderate speed, and ran his carriage against the vehicle of the prosecutor, who was quietly driving along the same road, he is guilty of an assault and battery. This point has not been contro- verted by the defendant's counsel ; but it is contended that the injury was the result ■of inevitable accident. " The facts of the case seem to be these : Mr. Kennedy, the prosecutor, was passing along Broad Street, in June last, with his carriage and some members of his family in it with him, and driving at, the usual travelling gait. When near Girard Avenue, he was about to turn down the same ; while attempting it, he saw the de- fendant approaching in a carriage, with his horse on a fast run ; the prosecutor in- stantly endeavoured to turn his horse in an opposite direction, but before he was entirely removed from the place of apparent danger, the defendant's carriage came lin contact with that of the prosecutor, upset the carriage, threw him and his wife upon the ground, causing considerable injury to him, and much greater to his •wife. " It is clearly proved that the defendant had been, for a great distance, trotting his horse at the top of his speed ; and when within about two hundred yards of the : place where the event occurred, his horse broke into a run, when the defendant struck him a violent blow with his whip ; some of the witnesses say he struck the 'horse a number of times ; and one of the vf itnesses said that he tried to hold him up, and the horse continued his speed until after the injury was effected. After this had been done, the defendant drove on his course without returning to see the effect produced by the conflict, or who had been injured thereby, or whether he had caused the death of a fellow being- or not. " If the jury believe that the defendant was driving his horse at a rapid, immode- rate gait, faster than people usually travel, and violently drove against the carriage of the prosecutor, and thereby inflicting upon him a personal injury, he is guilty of the offence charged in the indictment. Nor will it vary the case, if, when the horse had been urged to the top of his speed for some distance, he broke into a run ; for ■the defendant is responsible for urging his horse to that immodeiate gait, and must ' answer for the conse;quences." The jury rendered a verdict of guilty, and the defendant was sentenced to pay a ;fine of one hundred dojlars and the costs of prosecution. See BrigM. R. 186. -3 Am. L. J. 313. iilorise^Stealtnir* I. Persons charged with horse-stealing, how bailed. II. Sale of stolen horses not to change pre- perty. III. Punishment for horse-stealing. IV. Reward for apprehending and convict- ing. V. Who shall determine the reward. VI. Forms required under these acts. I. Act of March 10, 1780. Turd. 579. Dunl. 128. Sect. IV. No person or persons who shall be charged with the stealinff of anv liorse, mare, or gelding, on the direct testimony of one witness or who^sh^ll be Siri:?:L'r;'r' °^ ^^"•"^' "^"^^ ^^" p-Sorshant atied r OA L . T'^* *"*" ^y °"® "'■ '"O'^e justices of the Supreme Court FRv act of 30th April, 1832, the president judges of the courts of Common pffi are empowered to admit to bail any person accused of felony, or otherSnal offence 25r&f 55"^ " *"^ ^"'^' ''' *^ Supreme ^CourrmTyTa" M HORSE-STEALING. 275 II. Act of September 23, 1780. Purd. 579. Dunl. 139. Sect. VII. No sale of any stolen horse, mare, or gelding, by virtue of this act, shall be deemed a public sale in market overt, so as to change the property thereof. III. Act of April 5, 1790. Purd. 579. Sect. III. Every person convicted of horse-stealing, or as accessary thereto before the fact, shall restore the horse, mare, or gelding stolen, to the owner or owners thereof, or shall pay to him, her, or them, the full value thereof, and also pay the like value to the commonwealth. [And by act of April 23, 1829, (Purd. 580,) shall puffer punishment by solitary confinement at labour, for the first offence, for a period not less than one year, nor more than four years ; and for the second offence, for a period of not more than seven years. Dunl. 489.] IV. Act of March 15, 1821. Purd. 579. Dunl 373. Sect. I. Whosoever, after the passing of this act, shall pursue and apprehend any person who shall have stolen any mare, horse, or gelding, within any county of this commonwealth, on the conviction of the person so apprehended, shall be entitled to the reward of twenty dollars, and six cents for every mile necessarily travelled in pursuit of the offender : Provided, that the reward shall in no wise exclude the person entitled to it from being a competent witness. V. By the 2d section of this act the court shall determine who is entitled to the reward, and grant an order for the amount on the commissioners of the county where the owner of the horse, &c. resides. A justice of the peace has power to take a recognisance for the appearance of one arrested on suspicion of horse-stealing. Steel v. Commonwealth, 7 W. 454. VI. Information for Horse-stealing. M COUNTY, ss. THE information of G. H., of N township, in the county of M , yeoman, taken on oath before J. R., one of the justices of the peace in and for the said county, the 10th day of April, A. D. 1844, who saith that about two months ago a certain black gelding rising five years old, and about fifteen hands high, was stolen out of his pasture in N township aforesaid, and that he hath good cause to suspect, and doth suspect, that a certain A. B. of the same township, labourer, did steal, take, and carry away, the said gelding. Further saith not. G. H. Taken and subscribed before J. R., Justice of the Peace. WARRiANT against A HORSE-THIEF. M COUNTY, ss. Eije Commontoealtl) of ^Pennsslbanw, To the Constable of the Township of N , in the County of M , greeting : WHEREAS, G. H., of N township, in the county of M , yeoman, hath this day made oath before J. R., one of our justices of the peace in and for the said county, that about two months ago a certain black gelding rising five years old, and about fifteen hands high, was stolen out of his pasture in N township aforesaid, and that he hath good cause 'to suspect, and doth suspect, a certain A. B. of the same township, labourer, did steal, take, and carry away, the said gelding. You are, therefore, hereby commanded to take the said A. B., and bring him before the said J. R., or some other justice of the peace of the said county, forthwith, to answer the said charge, and further to be dealt with accord- ing to law. Witness the said J; R., at N township aforesaid, the tenth day of April, A. D. 1844. J. R., Justice of the Peace. [seal.] COMMITMENT OF A HORSE-THIEF. M COUNTY, ss. Sjie Commonlriealt!) of $emisslban(a, To the Constable of the township of N , in the county of M , and to the Keeper of the Common Jail of the said county, greeting : WHEREAS, A. B., of N township, in the county of M , labourer, hath been brought before J. R., esquire, one of our justices of the peace in and for the said county, by 276 HUNTING. virtue of his warrant, charged on oath of G. H. in the same township, yeoman, with haying stolen and carried away from the pasture of the said G. H., in N — -township aforesaid, a certain black gelding rising five years old, and about fifteen hands high, JThese are, there- fore, to command you, the said constable, to convey the said A. B. to the common jail of the said county forthwith, and deliver him to the keeper thereof, who is hereby enjoined to receive the said A. B. and keep him in safe custody until he be delivered by due course of law. Witness the said J. R., at N township aforesaid, the 10th day of Apnl, A. D. 1844. J, R., Justice of the Peace. [seal.] I. Constable to present offences. I m. Fines appropriated. n. Unlawful times of hunting, and fines. | IV. Forms required under the act of 1760. I. Act op April 9, 1760. Purd..580'. Dunl. 89. Sect. II. makes it the duty of the township constable to give information of any breach of this act. II. Sect. III. If any person or persons shall hunt, chase, or follow, with a de sign to kill or destroy any buck, doe, or fawn, within the lands already or here- after to be purchased of the Indians, at any other time or season, excepting only between the first day of the month of August, and the first day of the month of January, and shall be lawfully convicted thereof by the oaths or affirmations of one or more credible witnesses, or the confession of the party before one or more justices of the peace for the respective county where such ofience shall be com- mitted, he or they shall forfeit and" pay the sum of three pounds for every such offence, to the uses aforesaid: Provided, such conviction.. be made within six months after such offence is committed. III. Sect. IX. All penalties and forfeitures not hereinbefore appropriated, shall be paid, one moiety thereof to the informer, and the other for the use of the poor of the said township, &c. IV. Forms REauiRED under the Act of Assembly of 1760. FORM OF A warrant FOR UNLAWFUL HUNTING. COUNTY OF M , s». Wit ffiommontoealtj of jpennsslbanfa, , To any Constable of the said county, greeting : YOU are hereby commanded to take the body of A. B., of N township, if he be found in the said county, and bring him before J. R., one of our justices of the peace in and for the said county, to answer E. P., who sues as well for himself as the overseers of the poor of the township of N , in the said county, upon a charge founded on the oath of C. D., of having, between the first day of January and the first day of August, A. D. 1844, last past, hunted and killed a " buck, doe, or fawn," in the county aforesaid, contrary to the act of Assembly in such case made and' provided, and further to be dealt with according to law; and for so doing this shall be yourwarrant: Witness the said J. R., at N who hath hereunto set his hand and seal the 20th day of September, A. D. 1844. J. R., Justice of the Peace. [seal.] The defendant being brought before the justice, the witnesses being examined, and the justice satisfied that the defendant is guilty, let him be so adjudged, and declared to be convicted of the offence, and to have forfeited the sum of three pounds, to be distributed as is provided by the act of Assembly. If the person so convicted shall neglect or refuse to pay the penalty and costs, let an execution issue. The record of the conviction on the docket of the magistrate may be made in the following form : — HUSBAND AND WIFE. 277 RECORD OF A CONVICTION FOR ILLEGAL HUNTING. COUNTY OF M , as. BE it remembered, that on the 20th day of September, A. D. 1844, E. F., of N town- ship, in the said coanty of M , came before me, J. R., a justice of the peace in and for the said county, and gave information that A. B. of the said township, yeoman, between the first day of January and the first day of August, A. D. 1844, last past, did hunt and kill a " buck, doe, or fawn," in the township aforesaid, contrary to the act of Assembly in such case made and provided ; and afterwards, to wit, on the 20th day of September, 1844, the said A. B. was, in pursuance of a warrant by me issued, brought before me, at my office in said township, and in his presence and hearing C. D. was sworn on the New Testament to speak the truth, the whole truth, and nothing but the truth ; and being duly examined, tes- tified that on the first day of July, 1844, he did see the said A. B. hunt and kill a certain buck at N., in the said county of M ; and the said A. B. being called upon for his proofs and allegations, and not adducing any, I consider and adjudge him, the said A. B., to be guilty of the offence charged against him, and adjudge that he, the said A. B., shall for- feit and pay the sum of three pounds for the said offence, to be distributed as is directed in the act of the General Assembly, passed April 9, 1760. In testimony whereof, I, the said justice, set my hand and seal to this record of conviction, the 20th day of September, A.'D. 1844. J. R., Justice of the Peace. [seal.] FORM OF AN EXECUTION TO ENFORCE THE PENALTY FOR ILLEGAL HUNTING, COUNTY OF M , ss. ffije ffiommontBealtJ of Jicnnaslbanta, To the Constable of N Township, or to the next constable of the said county most convenient to the defendant, greeting : WHEREAS, A. B., of N township, was on the 20th day of September, 1844, be- fore J. R., one of our justices of the peace in and for the said county, convicted of having, between the first day of January and the first day of August, A. D. 1844, last past, huntal and killed, in the county aforesaid, a " buck, doe, or fawn," contrary to the provisions of the act of Assembly, in such case made and provided, and being so duly convicted before our said justice, was adjudged to have forfeited the sum of three pounds, which sum he hath neglected or refused to pay, together with one dollar and eighty-eight cents costs, which judgment remains unsatisfied : therefore we command you that you levy the said forfeiture thereon with the said costs, on the goods and chattels of the said A. B., and endorse 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 within your township, and returning the overplus, if any, of the said sale to the said A. B., and that you pay one moiety of the said forfeiture unto C. D., who informed our said justice of the commission of the said offence, and the other moiety thereof to the overseers of the poor of said township of N , for the use of the poor of said township ; and for want of sufficient distress that you take the body of the said A, B. into custody, and him convey to the debtor's apartment of the said county, there to be kept by the Sheriff or keeper thereof, who is hereby required to receive the said A. B. into his custody and him safely to keep for the space of thirty days, or until the said forfeiture and costs hereon endorsed be fully paid ; and of your proceedings herein, together with this execution, make return to our said justice on or before the tenth day of October, A. p. 1844. Witness our said justice at N , who hath hereunto set his hand and seal the 20th day of September, A. D. 1844. J. R., Justice of the Peace. [seal.] The justice must be careful, in using the above forms, to specify whether the de- fendant hunted and killed a " buck, doe, or fawn ;" and to charge him with the particular violation of the act, of which he has been guilty. A conviction for hunt- ing and killing a " buck, doe, or fawn," in the alternative would be fatally defective. ^ttfittlAntr antr IBMt* See Marriage. 278 INFANT. 1[mptimnwmt, iFal«e» It 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 apprehensions of personal danger, though no assault be made. 1 Bald. Rep. 571. 1. It is sufficient in indictments, [warrants, commitments, or docket-entries,] that the charge be stated with so much certainty that the defendant may know what he is called to answer, and that the court may know how to render the proper judgment thereon. Over-nice exceptions are not to be encouraged, especially in cases which do not touch the life of the defendant. 1 Chit. Cr. Law, 170, 221. 2. Whatever amounts to a public wrong, may be made the subject of indict- ment ; as the poisoning of chickens, cheating with false dice, fraudulently tearing a promissory note, breaking windows with stones, though there is not a sufficient number of persons to constitute a riot, the embezzlement of public moneys, killing a horse, &c. 1 D, 338. Or offering to bribe, though the bribe is not accepted. 2 n. 384. 3. Sending menacing.letters T!?ith a view to extort money, indictable at common law. Ibid. 229, n. 4. A confederacy to assist a female infant to escape from her father's control, with a view to marry her against his will, is indictable as a conspiracy at the common law. 5tV.^S. 461. 5. Whatever is productive of a disturbance of the public peace, or of malicious injury to the property of another ; or of nuisance or scandal to the community ; or partakes of the character of personal lewdness ; or tends or incites to the comrois- sion of any speciiic crimes ; is indictable as a misdemeanor at common law. Wh. C. L. 3. 6.- Disobedience to an act of assembly is an indictable offence at common law. 1 Barr, 224. 13 S. Sf R. 429. 1. Infant, a person under twenty-one years of age. Co. Zitt. 2. It is incumbent on a tradesman, before he trusts an infant with what may appear to be necessaries, to inquire whether he is provided bv his friends. Peake, N. P. 229. 6 TT.^rS. SO. ^ 3. Infants being supposed destitute of sufficient understanding to contract, the law protects their weakness, so far as to allow them to avoid every injurious contract} but they are bound by all reasonable contracts, for maintenance and education, and by acts which they are legally bound to perform. 5 Mass. 78. 4. An infant is liable for necessary victuals, apparel, physic, and surgical ai- tendance, schooling and instruction, for a fine assessed on him, on his admission to a copyhold estate. So he is liable for necessaries supplied to his wife or child. But he IS not liable, as for necessaries in respect of goods bought to sell again, although he keeps an open public shop, for he has not discretion to carry on busmess; or for money supplied to buy necessaries with, unless it be actuallv so expended. 2 Stark. 726. - " 5. An infant may enforce his own contracts although they cannot be enforced against him. Lord Tenterden. ' INFANT. 279 6. Infants are only capable of making contracts for necessaries; or of doing those things voluntarily which, by law, they might, or" could be compelled to ner- form. 2 P. R. 333. ^ 7. An infant may in some cases bind himself for necessaries, but he cannot do so when he has got a guardian or parent to supply his wants. 4 W. 80. 8. An infant is bound by a contract for necessaries and for carrying on the business in which he is employed by the consent of his guardians. 7 W. 9. An infant may bind himself for necessaries purchased with the consent of his guardian, expressed or implied, but not against his consent. 7 W. 344. 10. A bare acknowledgment, or part payment, after age, [after the infant shall have attained the age of twenty-one,] will not be sufficient ; there must be an express promise, (2 Esp. 268;) and such promise must be voluntary. 5 Hsp. 102. . 11. A note given by an infant, becomes good by a^romise to pay it, made after the maker of the note came of age. 2 Root's M. 477. So in case of a bond. 12. Whether articles furnished by a tradesman to an infant are necessaries or not, is a question of fact for the jury, regard being had to his condition in life, &c Ung. C. L. Rep. 232. 19 Ibid. 509. Q W. 8f S. 80. 13. The tradesman is not bound to inquire whether, or to what extent, the infant is supplied with the like articles from other sources. Ibid. 14. I apprehend that trover will not lie against an infant for goods sold to him either with, or without, a knowledge of his infancy ; certainly not when the fact of infancy is known to the vendor. 3 R. 354. 15. Where an infaiit hired from the plaintiff a horse and gig, to go to G , but instead of going to that place, went to C; , in an opposite direction, and by severe usage the horse was killed ; it was held, that his infancy was a bar to an action for damages. 3 R. 351. 16. If the contract of hiring came within the exception of necessaries, as might be, where a horse was hired to visit a sick parent, &c., then the infant would be liable for the consequences. Ibid. 853. 17. An infant entering into partnership with other persons, is not responsible for the debts contracted during his infancy. 7 S. ^ R. 54. 18. He can give his infancy in evidence under the general issue. 4 S. 130. 19. If the infancy of the plaintiff is pleaded, in abatement, the court [or the justice] may allow him to amend by inserting on the writ [summons or docket] that he sues by A. his next friend. Coxe, 416. 20. An infant may, by law, be a partner, and he will be entitled to all the benefits resulting from the partnership, although he will not be liable for the Ipsses, if he chases to avail himself of his minority. Gow on Part. 235. 21. When a banking trade was carried on in the name of father and son, in whose joint names the accounts with the customers were headed in the banking books, the father could not sue alone for the balance of an account, overdrawn by a customer, without giving distinct proof that the son [though proved to be a minor] had no property in the banking fund, or share in the business, as a part- ner. 14 East Rep. 210. 22. The court will not discharge a defendant out of custody upon the grounds of infancy where there is no suggestion of fraud, or imposition ; but will leave him to make use of that fact upon his defence. 3 Binn. 413. ' 23. " We [say the court] do not wish to afford encouragement to persons , who, knowing their own age, contract debts which they afterwards wish to get rid of." Ibid. 24. Within the age of seven years, an infant cannot be the subject of a criminal prosecution. At fourteen years of age an infant is doli capax, able to discriminate between good and evil, and subject to punishment for crime : under fourteen, an infant is considered, prima facie, unacquainted with guilt, and incapable of crime. But if an infant, between the ages of seven and fourteen years, exhibits unequivocal malice, and an obvious knowledge of the impropriety of the act committed, he may be convicted even capitally. 1 ^sh. 248. fVh. C. L. 17. Lewis^ C. L. 599. 280 INNS AND TAVERNS. Informer. The person who informs against, or prosecutes in any of the courts of justice, those who offend against any law or penal statute. T.om. Law, Dic'y. 1. Informers, under the summary proceedings authorized by the "Act for the pre- vention of vice and immorality," and other similar acts, are not liable for costs, if they fail in establishing their accusations. I ,^sh. 413. 2. An informer is not a competent witness ; and cannot become such by an as- signment of the interest he may have in the penalties. Ihid. 3. A common informer may bring an action in his own name, whether the penalty be given to him in whole or in part ; and that without any positive direction in the act imposing the penalty. 9 W. 8; S. 346 ; per Rogers, J. Hxmn nm ^^ttnn. I. Good entertainment to be kept. II. Innkeepers encouraging gambling, &d., to be fined. in. To be fined for allowing games, &c., in their houses. IV. License to be forfeited on conviction of inciting gambling, or allowing the same, &c. A further penalty on second convic- tion. V. Penalty for harbouring apprentices, mi- nors, &c. • VI. Debts for liquors, &c., not recoverable. VII. Suits for tavern-reckonings contracted by apprentices, &c., to abate. VIII. Penalty for selling Uquors without license. DC. By what measures liquors are to be sold. X. Penalty for selling adulterated liqaors. XI. Lien of tavern-keepers, and Uvery-sta^ ble keepers, on horses, for horses' keep. Xn. Penalty on innkeepers, selling to ha- bitual drunkards. Xm. Authorities in relation to inns and innkeepers. I. Act or March 11, 1834. Purd. 596. Dufa. 600. Sect. XVII. Every innkeeper shall keep good entertainment for man and horse, under penalty of five dollars for eveiry case of neglect. II. Sect. XVIII. If any innkeeper, tavern-keeper, or other retailer of- wine, spirituous, or other strong drink, shall incite, promote, or encourage aq^ games of address, hazard, cock-fighting, bullet-playing, or horse-racing, at which any money, or other valuable thing, shall be betted, staked, striven for, won or lost, or shall furnish any wine, spirituous liquors, beer, cider, or other strong drink, to any of the persons assembled or attending upon any such game, fight, play, or race, such person shall forfeit and pay, upon conviction of the first offence, four- teen dollars, and upon a second conviction of the offence, twenty-eight dollars. III. Sect. XIX. And if any such person shall permit and allow any kind of game of address, or hazard, or any playing, betting, or gaming for money, or other thing of value whatsoever, either at cards, dice, billiards, bowls, shufflfe- boards, or any game or device, in any other manner to be practised, played, or carried on within his or her dwelling-house, out-house, shed, or other place, in his or her occupancy, such person shall, for the first and second offence respectively, forfeit and pay the like sums. IV. Sect. XX. And if any innkeeper, or tavern-keeper, or other licensed, re- tailer of wine or other liquors, shall offend as aforesaid, the license of such person shall, upon his conviction thereof, become void, and such offender shall be inca- pable of being again licensed in like manner for one year thereafter ; and upon INNS AND TAVERNS. 281 such second conviction, such person shall, in addition to the penalty aforesaid, be for ever incapable of being a public-house keeper or retailer, as aforesaid, within this commonwealth. V. Sect. XXI. No innkeeper or tavern-keeper shall receive, harbour, entertain, or trust any person under the age of 31 years, or any apprentice or servant, knowing him to 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, appreiltice, or servant, for liquors or entertain- ment ; and for the third offence, under penalty of fifteen dollars, and the forfeiture of his license, and of being for ever incapable of receiving a license to keep a public inn within this commonwealth. VI. Sect. XXII. No innkeeper or tavern-keeper shall trust or give credit to any person whatsoever, for liquors, under penalty of losing and forfeiting such debt. VII. Sect. XXIII. Every suit brought by an innkeeper or tavern-keeper, for tavern reckonings as aforesaid, or for a debt contracted by a minor, apprentice, or servant, after a warning to the contrary, as aforesaid, shall abate, or the defendant may plead such fact in bar thereof, and the plaintiff therein shall pay double costs. 5 S.SrH- 141. 6 IV. 65. VIII. Sect. XXV. If any person shall sell less than one quart of spirituous or vinous liquors, to be delivered at one time to one or more persons, without having first obtained a license agreeably to law, for that purpose, such person shall be liable to indictment, and, on conviction thereof, shall forfeit and pay for every such offence a sum not exceeding one hundred dollars. (1) IX. Act of 1705. Purd. 597. Dunl. 44. Sect. I. All persons which now are or which at any time or times hereafter shall be licensed to keep any tavern, inn, ale-house, or victualling-house, within this province, shall sell beer and ale by wine-measure to all persons as drink it in their houses, aijjl by beer-measure to all such persons as carry it out of their houses, under the penalty of ten shillings, to the use of the poor for every county where the offence is committed. X. Act of 1705. Purd. 597. Dunl. 45. Sect. I. If any person within this province shall presume to sell rum, brandy, or suchUke spirits, that is adulterated or mixed with water, or any other liquor, knowing the same to be so adulterated or mixed, being convict thereof, by one or more credible witnesses, he or she shall, for every such offence, forfeit the said rum, brandy, or spirits, to be exposed to sale, and pay treble tEe value thereof; one moiety to the support of the government, and the other moiety, or half, to him that shall discover and prosecute the same. XI. Act or April 7, 1807. Purd. 597. Dunl. 250. Sect. I. All livery stable-keepers and innkeepers within this commonwealth ^hall have a lien upon any and every horse delivered to them to be kept in their stables, for the expense of the keeping ; and in case the owner of the safd horse or horses, or the person who delivered them for keeping to the keeper of the livery stable, or innkeepers, shall not pay and discharge the said expense, pro- vided it amounts to thirty dollars, within fifteen days after demand made of him personally, or in case of his removal from the place where such livery stable or inn is kept, within ten days after notice of the amount due, and demand of pay- _ ment in writing left at his last place of abode, the livery stable-keeper, or inn- keeper, may cause the horse or horses aforesaid to be sold at public sale accord- ing to law, and after deducting from the amount of sales the costs of sale and the expense of keeping, shall deliver the residue upon demand to the person or the (1) By act of 29th March, 1841, the fine shall be not less than twenty nor more than one hun- dreddnllara. Pr-H "^"l. Dunl.9Zi. 282 INNS AND TAVERNS. ageat of the person who delivered the horse or horses to him for keeping : Pro- vided always, that nothing in this act contained, shall be construed to impair any light of action, which the said livery stable-keepers or innkeepers may have against any person or persons, for. the keeping his or their horse or horses. XII. Act of June 13, 1836. Purd. 789. Dunl. 757. Sect. LXVI, If any innkeeper, distiller, grocer, or other person shall re- ceive notice from the committee of anhabitual drunkard, not to furnish or supply him with any liquor; and shall, after such notice, sell, or in any manner furnish or supply any wine, or spirituous or mixed liquors, to such habitual drunkard, or any person for him, every person so selling or furnishing, shall forfeit and pay the sum of ten dollars for every such act, to be recovered as debts of the same amount are by law recoverable, and to be appropriated, one half to the county treasury, and the other half to the person who shall sue for the same. XIII. 1. A person who makes it his business to entertain travellers and passen- gers, and provide lodging and necessaries for them, and their horses and attend- ants, is a common innkeeper ; and it is no way material whether Jie have any sign before his door or not. Palmer's Bep. 374. 3. Every one at common law is entitled to keep a public inn, (but not an ale- house or tavern;) and may be indicted and fined as guilty of a public nuisance, if he usually harbour thieves or suffer frequent disorders in his house ; or take exorbitant prices, or refuse to receive a traveller as a guest into his house, or to find him victuals upon the tender of a reasonable price. 1 Hawk. 714. It is said also that setting up a new inn, where there is already a sufficient- number of ancient and wdl-gavermed inns, is a nuisance. Ihid. 1 Russell, 298. 3. It was resolved by aill the judges that any person might erect an inn to lodge travellers without any license or allowance for such erection. Dalt. c. 56. 4. It is the duty of an inn-keeper to receive into his house aU strangers and tra- vellers who may call on him for entertainment, provided he has room, and they ten- der him a reasonable sum for the accommodations which they demand. Bat he may refuse to permit one to enter, being responsible for any injury the stranger or traveller might thereby sustain, if his house was not full. Com. v. Mitchell, Q. S., Pkila., March 30, 1850; 7 Leg. Int. 59. s. c. 1 U. S. Law Mag. 522» And it is said, he may also be indicted, at the suit of the commonwealth, for refusing to receive a guest, under such circumstances. 1 Hawk. 714. Wh. Pr. 526, n. 5. An inn-keeper has the same control over his dwelling that any other person has, being responsible for the consequences of his conduct. He may refuse to admit, or ' expel an obnoxious person from his house ; and in so doing, may use as much forc« as is necessary, witholit being guilty of an assault and battery. And it makes no dif- ference that the person expelled, called to see a guest at the inn ; although by an im- proper exercise ef his right, he may render himself liable for any injury thereby sus- tained either by the guest or visitor. Com. v. Mitchell, ut supra. 6. An innkeeper may detain the person of the guest who eats, or the horse which eats, till payment ; and this he may do without any agreement for that purpose. For men that get their livelihood by entertainment of others cannot annex such disobliging condition that they shall retain the party's property in case of non-payment, nor make such disadvantageous and imprudent a supposition as that they should not be paid. And therefore the law annexes such a condition without the express agreement of the parties. Bac. Mr. 7. Inns were allowed for the benefit of travellers who have certain privileges whilst they are on their journeys, and are in a more peculiar manner protected by the law ; it is for this reason that the innkeepers shall answer for those things which are stolen within the inn, though not delivered to him to keep, and though he was not acquainted that the guest brought the goods to the inn, for it snail be intended to be through his negligence or occasioned by the fault of him or his servants. 8 Co. Caley'scdse. 8. There is in law an implied contract with a common innkeeper to secure his guest's goods at his inn. 3 Bl. Com. 164. And this duty and burden enjoined on inn- INSOLVENT LAWS. 283 keepers by law, they cannot discharge themselves of, under pretence of sickness, want of understanding, absence from their hoasesj or the like. Bac. Mr. 182. 9. So if he puts a horse to pasture, without the direction of his guest, and tha horse is stolen, he must make satisfaction. (But otherwise if with his direction.) Ibid. 10. Although a common carrier is liable, for all losses occasioned by an armed mob, (not being public enemies,) an innkeeper would not be liable for such a loss. Nor would he be liable (it should seem) for a loss by robbery and bur- glary by persons from without the inn. But this doctrine should be now stated with some hesitation, for in a later case, (8 B. Sr C. 9,) Bailey, J., said, "It appears to me, that the innkeeper's liability very closely resembles that of a carrier. He is prima facie liable for any loss not occasioned by the act of God or the king's enemies ; although he may be exonerated, where the guest chooses to have his goods under his own care." Story on Bailments, S09. 11. In like manner if an innkeeper bids his guest take the key of his chamber, and lock the door, and tells him that he will not take the charge of the goods ; yet if they are stolen he shall be answerable, because he is charged by law for all things which come to his inn, and he cannot discharge himself by such or the like words. Dalt. c. 56. Blackerly, 169. 12. Holt, C. J., doubted whether a man is a guest by setting up his horse at an inn, though he never went into the inn himself; but the other three justices held, that such person is a guest by leaving his horse,'as much as if he had stayed him- self, because the horse must be fed, by which the innkeeper has gain ; otherwise if he had left a trunk or a dead thing. 1 Salk. 388. 13. So if a man comes to an inn with a hamper in which he hath certain goods, (to wit, hats, as the case was,) and departs, leaving it with the host, and two days after comes again ; whereas m the time of his absence this was stolen, he shall not have any action against the host, because he was not a guest at the time of the stealing, and the host bad no benefit by the keeping thereof, and therefore shall not be charged for the loss thereof in his absence. 1 Roll's Mr. 2. 14. An innkeeper is liable for whatever is deposited in his house ; but, if the trust of the depositor is reposed in another person living in the house, the case is taken out of the general rule. 1 Y. 34. 15. A tavern or innkeeper may recover from a guest the amount of his bill for boarding, not being prohibited as a tavern reckoning by act of March 11, 1834. 2 M. 323. 16. The keeper of a public house or inn cannot recover in an action upon a book account for liquors, or any other tavern reckoning, which exceeds in amount twenty shillings. 6 W. 65. 17. An account for liquor sold on credit by a tavern-keeper is null within the act of 1834, herice, an allowance for such liquors so furnished, on a settlement of ac- counts, will not avail the innkeeper. 2 Barr, 77. UnmVOmX 2lail)0, (Proceedings, Forms, SfC.) I. An act relating to, insolvent debtors. It Form of a petition from an insolvent to a judge or prothonotary. in. Form of a tend .to take the benefit of the insolvent laws. IV. Form of a fiijal petition from an insol- vent to the court, together with his oath and statements. V. Form lof a notice to be given to creditors. VI. Form of an order of court in relation to the publication and service of notices. VII. Of the effect of a discharge on the per- son of the debtor. Vni. Duty of the justice to stay proceed- ings when he is satisfied that the defendant, since the judgment against him has been ren- dered, has obtained a discharge as an insol- vent debtor. IX. The effect of a discharge on the property of the insolvent. X. Judicial opinions touching insolvents 284 INSOLVENT LAWS. 1. An Act relating to Insolvent Debtors, Jcnb 16, 1836. Furd. 606. Dunl. 799. TABLE OF CONTENTS. 1. Jurisdiction rfthe Courts, and how exercised. Sect. 1. Courts of Common Pleas to have power to grant relief to insolvent debtors. 2. To what court application is to be made. 3. Six months' residence or three months' confinement necessary. 2. Proceedings to obtain a Discharge from Confinement or Custody, 4. Judge may make an order of discharge on a bond being given. 5. What the order shall contain. 6. Condition of the bond to be given by the debtor. 7. Effect of the order or discharge. 8. Debtor arrested on a bail-piece may give new bail. 3. Of the Petition and Proceedings thereon. 9. Every petition to be accompanied with certain schedules) &c. 10. Court to fix^a time for hearing the petitioner. 11. Notice to be given to creditors of the hearing. 12. Petitioner to exhibit an account of his affairs, and submit himself for examination. 13. Oath to be administered to petitioner. 14. Petitioner to execute an assignment. 15. Court to make an order exempting petitioner from imprisonment. 16. Such order to be a sufficient warrant for his discharge. 17. Proviso that in certain actions founded upon tort, &c., the defendant shall not be en- titled to his discharge, until he shall have been confined at least sixty days. 18. Court may make an order for the production of books, &c. 19. Court may make an order on the insolvent to answer interrogatories, &c. 4. Ofihe Powers and Duties of the Trustees,,and of Distribution among the Creditors of an Insolvent. 20. Trustees to give bond. 21. Trustees to give notice of their appointment, &c. 22. Actions brought by the debtor not to abate, &c. 23. Trustees to have power to compound, &c. 24. Trustees to collect debts, and within twelve months to make distribution. 25. Trustees to appoint a time and place for receiving proofs of debts, and to make report 26. Notice to be given of such report, and it may be confirmed, if no exceptions, &c. 27. Certain costs and debts to be preferred. 28. Goods liable to distress, not to be removed until the arrears of rent are paid. 29. A second and other dividends may be made. 30. After distribution, the trustees to state and file their accounts. 5. Effect of the Discharge upon the Petitioner, and upon other persons. 31. If personal notice be given, the discharge shall affect only those to whom such notics is given. 32. Effect of the discharge of a petitioner who may be arrested, &e., out of his own county. 33. The discharge of an insolvent not to release other persons. 6. Of the Property of an Insolvent at the lime tfhis Discharge. 34. The trustees to be vested with all his property, and to be competent to sue, &c. 35. Provisoes relating to bona fide conveyances, &c. 36. Trustees mayrecover property conveyed to defraud creditors, &o. 37. Choses in action of the wife of an insolvent not to vest in trustees. 38. Debtors may retain certain articles. 39. If the debtor shall satisfy his creditors, the court may order his nroDertv. &c.. to b« restored. . r r j» ' 7. Of the after-acquired Property of an Insolvent. 40. After-acquired property to be subject to his debts. 41 . Proceedings if a majority in number and value of his creditors consent to the exemption of his after-acquired property. INSOLVENT LAWS. 285 8. Of Criminal Proceedings t^ainat Insolvents. 42. The court to commit the petitioner to jail in certain cases. 43. Penalty on conviction of certain offences. 44. Prisoner to be discharged if no bill found, &c. 45. Penalty on colluding with an insolvent debtor, &c. 46. Penalty on conviction of perjury. 9. When Belief may be given to Persons sentenced ly a Criminal Court. 47. The court to have power, under certain circumstances, to discharge insolvent offenders, sentenced to fines, &c. 48. Persons confined for a debt not exceeding fifteen dollars, and costs, may be discharged after thirty days' confinement, &c. I. An Act relatinb to Insolvent Debtors. 1. Jurisdiction of the courts, and how exercised. 2. Proceedings to obtain a discharge from confinement or custody. 3. Of the petition, and proceedings thereon. 4. Of the powers and duties of the trustees, and of distribution among the creditors of an insolvent. 5. Effect of the discharge upon the petitioner, and upon other persons. 6. Of the property of an insolvent at the time of his discharge. 7. Of the after-acquired property of an insolvent. 8. Of criminal proceedings against insolvents and others. 9. When relief may be given to persons sentenced by a criminal court, 1. Jurisdiction of the Courts, and how exercised. Sect. I. Be it enacted by the Senate and House of Representatives of the Com- monwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That the several courts of Common Pleas of this commonwealth shall have power to grant relief to insolvent debtors residing, 01* being within this commoawealth, on application made in the manner hereinafter prdrided. Sect, II. The jurisdiction of the said courts may be exercised as follows, and not otherwise, viz. : 1, In the case of a person arrested or detained by virtue of any process issued in any civil suit or proceeding, for the recovery of money or damages, or for the non-performance of any decree or sentence for the payment of money, without collusion with the plaintiff, the court of Common Pleas of the county in which such debtor shall be arrested or detained, shall have power.to grant lelief as afore said. 8. In the case of a person held on a bail-piece issued in any such suit or pro- ceeding, the court of Common Pleas of the county in which the suit was insti- tuted shall have power to grant relief as aforesaid. 3. In the case of a debtor not arrested, detained, or held as aforesaid, such power may be exercised by the court of Common Pleas of the county in which such debtor shall reside. Sect. Ill, But no debtor shall be entitled to relief under this act, unless he shall have resided within this commonwealth, for six months immediately preceding his application to the court, or shall have been confined in jail for three months im- mediately preceding such application. 2. Proceedings to obtain a Discharge from Confinement or Custody. Sect. IV. It shall be lawful for any judge of the court of Common Pleas afore- said, or for the prothonotary of such court, to make an order for the discharge of any debtor arrested, detained, or held by virtue of any process or bail-piece, as afore- said, on his giving -a bond to the plaintiff in such suit, or proceeding, in such amount, and with such security as shall be approved by such judge or prothono-r tary. Sect. V. The order of the judge or prothonotary, as aforesaid, shall direct the officer or other person having such debtor in custody or confinement, forthwith to discharge such debtor, on his paying the jail fees, if any be due. 286 INSOLVENT LAWS. Shot. VL The condition of the bond to be given as aforesaid, shall be, that the said debtor shall appear at the next term of the court of Common Pleas of the said county, and then and there present his petition, for the benefit of the msolvem laws of this commonwealth, and comply with all the requisitions of the said law, and abide all the orders of the said court in that behalf, or m default thereof, and if he fail in obtaining his discharge as an insolvent debtor, that he shall surrender himself to the jail of the said county. Sect. VIL The officer or other person having such debtor in conlinement or custody, shall be exonerated, on making a return of the order aforesaid on the process by which such debtor was held, and such order being filed with any officer or magistrate, by whom any bail-piece was issued, shall entitle the bail to be exonerated, as effectually as if the debtor had been surrendered and confined in prison on such bail-piece. Sect. VIIL Provided, that nothing herein contained shall prevent a debtor arrested on a bail-piece, from giving new bail, according to law, and obtaining his release thereby. 3. Of the Petition, and Proceedings thereon. Sect. IX. Every petition for relief, as aforesaid, shall be accompanied with the following schedules: 1. A statement of all the estate, effects, and property of the petitioner, whereso- ever situate, and of whatsoever kind. 2. A statement of the debts due by him, containing the names of his creditors, the amount due to each, and the nature or character of the debt, so far as he can ascertain the same. 3w A statement of the causes of his insolvency, and of the extent of his losses, if any. And the facts set forth in such petition and statements shall be verified by the oath or affirmation of the petitioner. Sect. X. It shall be the duty of the court to which any such petition may be presented, to fix a time for the hearing of the same, either by a general rule, or by an order to be made in the particular cause, if the circumstances of the case shall require it. Sect. XI. Notice of the time and place fixed for the hearing, as aforesaid, shall be given by the petitioner to his creditors, at least fifteen days before such hearing, either personally, or by advertisement published in one or more newspapers, as the court may direct. Sect. XII. At the time and place fixed for the hearing, the petitioner shall ex- hibit to the court a just and true account of his debts, credits and estate, whatso- ever, and wheresoever situate, and, if so required, shall produce ail books and papers in his possession, or under his control, relating to his business and estate, and shall answer all questions that may be put to him by the court, or (under their control) on the part of his creditors, touching the same, and shall satisfy the court that he has not concealed or conveyed to any person whomsoever, for the use of himself, or any of his family or friends, or whereby to expect any future benefit to him or them, any part of his estate, effects, or credits. Sect. XIII. If, upon examination of the petitioner as aforesaid, there shall not arise a strong presumption of fraud, and if the petitioner shaU in other respects appear to be entitled to relief, the court shall direct an oath or affirmation, in the following form, to be administered to such petitioner: " I, A. B., do (swear or affirm) that I will deliver up and transfer to my trustees, for the use of my creditors, all my property that I have, or claim any title to, or interest in, at this time, and all debts, rights, and claims which I now have, or that I am in any respect entitled to, in possession, reversion, or remainder; and that I have not, directly or indirectly, at any time, given, sold, conveyed, leased, disposed of, or intrusted any part of my property, rights, or claims, to any person, wherehy to defraud my creditors, or any of them, or to secure, receive, or expect any profit, benefit, or advantage thereby." Sect. XIV. The petitioner shall thereupon execute an assignment of all his estate, property, and effects whatsoever, to such trustees as may be nominated by iwo-thirds in number and value of the creditors then attending, either in person or INSOLVENT LAWS. 287 by attorney, or, in default of such nomination, as shall be appointed by the court. Sect. XV. When such assignment shall have been executed, the court shall make an order that the petitioner shall not, at any time thereafter, be liable to im- prisonment, by reason of any judgment or decree obtained for the payment of money only, or for any debt, damages, costs, or sum of money, contracted, ac- crued, or occasioned and due before the time of such order. Sect. XVI. The order of the court as aforesaid, shall be a sufficient warrant for the discharge of the petitioner from imprisonment, if he shall be in confinement at the time of such order, or shall be at any time afterwards arrested, by virtue of process in any action or proceeding for the recovery of any debt or demand, as aforesaid, on his giving a warrant of attorney, if arrested on mesne process, to appear to the action, and plead thereto. Sect. XVIL Provided, that if the petitioner shall be in custody or confinement at the time of such order, by virtue of process issued upon any judgment obtained against him in an action founded upon actual force, or upon actual fraud or deceit, or in an action for a libel or slander, malicious prosecution or conspiracy, or in an action for seduction, or criminal conversation, virhere the damages found by the jury shall exceed the sum of one hundred dollars ; or if such petitioner shall be afterwards arrested by virtue of process issued upon any such judgment obtained against him previously to such order, he shall not be entitled- to be discharged from such imprisonment or arrest, until he shall have been in actual confinement during a term of at least sixty days. Sect. XVIII. It shall also be lawful for the said court, upon the application of the trustees of any insolvent, to make an order for the appearance of such insolvent, at such time and place as may be fixed by the court, to answer upon any interrogatory, or otherwise, to such questions as may be propounded on the part of the said trus- tees, touching the estate and property of such insolvent at the time of his assign- ment to the said trustees, and to enforce their orders in the premises, by attachment; Sect. XIX. It shall be lawful for the court, either before or after the discharge of any petitioner as aforesaid, to make an order upon such petitioner to produce and deposit, either with the prothonotary of the court, or with the trustees, all books, documents, papers, and muniments of title, in his possession or under his control, relating to the estate and property of such petitioner, and to enforce such order by attachment. 4. Of the Powers and Duties of the Trustees, and of Distribution among the Creditors of an Insolvent. Sect. XX. Every trustee of an insolvent as aforesaid, shall, before acting as such, give bond to the commonwealth, in such penahy, and virith such security as shall be satisfactory to the court, with condition for the faithful execution of his trust. Sect. XXI. It shall be the duty of the said trustees, immediately after giving bond as aforesaid, to give notice of their appointment, in at least one newspaper" published in the same county, during at least four weeks, together with their names and places of abode, and they shall in such notice require all persoiis in- debted to such insolvent, or holding property belonging to him, to pay and deliver all such sums of money and property due, and belonging to such insolvent, to the said trustees, and they shall also therein desire all creditors of the insolvent to present their respective accounts or demands. Sect. XXII. No action or other legal proceedings instituted by any such debt- or, and pending at the time of the appointment of a trustee or trustees, as afore- said, shall abate thereby, but the same shall be continued by, and inure to, the benefit of sUch trustee or trustees. Sect. XXIII. The trustees of such insolvent shall have power to compound with his debtors, in case of controversy, and to settle the same by arbitration or otherwise, and the same right to set-off shall exist, where there shall be mutual debts between the insolvent and such debtors, as in other cases. Sect. XXIV. It shall be the duty of such trustees, forthwith to proceed to collect the debts, and to convert the real and personal estate of such insolvent into 288 INSOLVENT LAWS; cash, and, within twelve months from the time of their appointment, to make dis- tribution of the nett proceeds thereof, in the manner heremafter directed : Fro- vided, that it shall be competent for the court, on application by such trustees, to enlarge the time for such distribution, or to order distribution from time to time, if any legal proceeding should be pending, or any estate or effects of such insol- vent should remain undisposed of, or be discovered after the period fixed for such distribution. • . . . , Sect. XXV. It shall be the duty of the trustees to appoint a certain time and place for receiving the proofs of the creditors, in support of their respective claims, of which public notice shall be given, and, on the day so appointed, they shall proceed to receive the proof of the several creditors, and shall determine upon the same, and having stated their accounts, and ascertained the proportionate sum payable to each creditor, shall file their report of the same in the office of the prothonotary of the court in which their appointment took place. Sect. XXVI, It shall be the duty of such prothonotary to give public notice of the filing of such report, by advertisement, in the manner directed by law, in the case of the account of assignees under a voluntary assignment, and at the next stated, term of the court, after the filing of the report, if exceptions shall not be presented at such time as may be directed by the rules of such court, the report may be confirmed by the court, and the trustees shall thereupon make distribution accordingly. Sect. XXVII. Provided, 1. That the fees and charges of maintenance due to the jailer at the time of the discharge of the debtor, being approved by the court, shall be first paid out of the debtor's property, previous to any distribution : And provided, 2. That no preference shall be allowed to debts due on specialties, but all bona fide mortgages, judgments, and executions, binding the real or personal estate of such insolvent, shall remain good and effectual in law, and shall be first satisfied out of the debtor's estate, according to their priority of lien. Sect. XXVIII, When any rent shall be^ue by such insolvent at the time of his discharge, no goods or chattels upon the premises, in respect to which such rent shall be due, liable to distress, shall be removed, or disposed of, without the consent of the landlord, or other person to whom such rent shall be due and pay- able, until the same, not exceeding one year's rent, be paid ; and such landlord, or other person, may proceed by distress, or otherwise, as he might have done before such discharge, to recover the same, not exceeding one year's rent, as aforesaid. Sect. XXIX, If the whole of the estate shall not have been distributed upon such report, the trustees shall proceed to make a second dividend, of all such moneys as shall come into their hands after the first dividend, and make report in like manner, and the same proceedings shall be had upon such report, as are hereinbefore provided, and so from time to time^ until a distribution shall have been made of all the estate of such debtor. Sect, XXX, When the trustees shall have completed the distribution of the debtor's estate among the creditors, as aforesaid, they shall cause an account of the same to be stated, and filed in the office of the prothonotary aforesaid. 5, Effect of the Discharge upon the Petitioner, and upon other Persons. Sect, XXXI, Whenever the court shall have directed personal notice to be given to creditors, of the time and place fixed for hearing the petition of any debt- or, as aforesaid, the discharge of such debtor shall not affect the rights and pro- ceedings of those to whom personal notice shall have been given, according to the order of the court. Sect, XXXII, The discharge of any petitioner who may have been arrested or imprisoned in any other county than that of his residence, shall not protect hirn from arrest or imprisonment for any debt, except such as may be owing to the party at whose suit such debtor was arrested or imprisoned. Sect, XXXIII. The discharge of a debtor by virtue of this act, shall not acquit or release any other person from any debt, contract, or engagement, or other liability, to which he was subject, but all other persons shall be answerable for the same, in like manner as if such discharge had not taken place. INSOLVENT LAWS. 289 6. Of the Property of an Irisolvent at the T^me of his Discharge. Sect. XXXIV. The trustees appointed as aforesaid, shall be deemed to be vested with all the estate and property of the insolvent, at the time of filing his peti- tion, subject to all liens by mortgage, judgment, or otherwise, existing at that date, and it shall be their duty to take the same into possession, and all books, vouchers, and papers relating to the same, an'd shall be capable of suing for and recovering, in their own names,-all such estate and property, and all debts and things in action belonging or apperteuning to such insolvent at the time of his petition as aforesaid. Sect. XXXV. Provided, I. That no purchase or assignment of the real estate of such insolvent, situate within the county, made bona fide, and for a valuable consideration, before the date of the assignment to the said trustees, by, or to, any person not having actual notice or knowledge of the petition aforesaid, shall be invalidated or impeached thereby. 2. That no purchase or assignment of the real estate of such insolvent, situate in any other county, made bona fide, anA for a valuable consideration, before the- recording of the assignment to such trustees, in such other county, by, or to, any person not having actual notice or knowledge of such petition or assignment, shall '\ be invalidated or impeached thereby. 3. That no purchase or assignment of the personal property of such insolvent, made bona fide, and for a valuable consideration, by, or to, any person not having actual notice or knowledge of such petition or assignment, shall be invalidated or impeached thereby. 4. That if any person indebted to such insolvent, or having possession of any of his property, shall bona fide pay the said debt, or deliver the said property to- the said insolvent, before public notice given by the said trustees, as herein pro- vided, and without having had- actual notice or knowledge of such petitioner assignment, he shall not be liable to pay or deliver the same to such trustees. 5. That every insolvent shall be entitled to retain all such articles as may by law be exempted from levy and sale, upon execution. Sect. XXXVI. If any insolvent as aforesaid, shall, prior to such assignment, . have conveyed or transferred any part of his real or personal estate to his wife and children, or either of them, or to any person in trust for them, or either of them, or shall have conveyed or transferred the same to any other person, with intent to defraud his creditors, the trustees aforesaid shall have power to recover and' dispose of the same, as fully and effectually, as if the said insolvent had been . actually seised or possessed thereof at the time of such assignftient. Sect. XXXVII. Personal property of the wife of any such insolvent, which shall not have been reduced by him into possession, previously to his assignment as aforesaid, shall not be deemed to vest in the said trustees, but the beneficial interest in the same shall remain to such wife, and it shall be lawful for the court, at the time of such assignment, or at any subsequent time, to appoint a suitable person < to act in her behalf, as trustee, in whom such property shall vest for her use. Sect. XXXVIII. Every such debtor shall be entitled, notwithstanditig his as- • signment in conformity to this act, to retain for the use of himself and his family, all such articles as are or may be by law exempted from levy or sale on any exe- cution, or from distress for rent ; and the property in such articles shall not pass to his trustees. Sect. XXXIX. If any such debtor shall satisfy the claims of his creditors, the • court shall order his estate and efliects not sold to be restored to him, or his legal representatives, and he shall, by virtue of such order, be seised or possessed thereof as of his former estate and title thereto ; and if upon the final settlement of accounts by the trustees, there shall be a surplus, after payment of all the claims presented apd allowed, the same shall be paid to such debtor, or his legal representatives. 7. Of the after-acquired Property of an Insolvent. Sect. XL. The real and personal estate acquired liy any debtor, after his dis- charge, as aforesaid, or in which he shall thereafter become entitled to any inte- T 290 INSOLVENT LAWS. rest, legal or equitable, (except suph, as may by law be exempted ffom ex.^cution,) shall be subject to his debts, engagements, and other liabilities, in like manner, in all respects, as if such discharge had not taken place, and it shall be kwful.for any of his creditors to issue and execute any new or other process against such , real or personal estate, for the satisfaction of their respective claims, in the same manner as they might have done if such debtor had never been taken in execution. Sect. XLL Whenever a, majority in number and value of the creditors of any insolvent, as aforesaid, residing within the United States, or having a known attorney therein, shall consent in writing, thereto, it shall be lawful for the court by whom such insolvent shall have been discharged, upon the application of such debtor, and notice given thereof, in the manner hereinbefore provided for giving notice of his original petition, to make an order, that the estate and effects which such insolvent may afterwards acquire shall be exempted for the term of seven years thereafter, from execution, for any debt contracted, or cause of action exist- .ing previously to such discharge, and if, after such order and consent, any execu- ition shall be issued for such debt, or cause of action, it shall be the duty of any judge of the court from which such execution issued, to set aside the same, with aCOStS. 8. Of Criminal Proceedings against Insolvents. Sect. XLIL If it shall appear to the court, upon the hearing of any petition, as •aforesaid, either by the examination of the petitioner, or other evidence, that there is just ground to believe either — First, That the insolvency of the petitioner arose from losses by gambling, or hj the purchase of lottery tickets ; or, Second, That such petitioner had embezzled or applied to his own use any money, or other property with which he had been intrusted, either as bailee, ■agent, or depository, and to the prejudice of the opposing credit&rs ; or. Third, That he has concealed any part of his estate or effects, or colluded or contrived with any person for such concealment, or conveyed the same to any person, for the use of himself, or of any of his family or friends, or with the ex- pectation of receiving any future benefit to himself or them, and with ifi'tent to •defraud his creditors, in every such case, it shall be the duty of the court to com- mit such person to the jail of the county, for trial at the court of duarter Sessions entitled " An act relating to insolvent debtors;" and the said Prothonotary having approved of the above named C. D. as security for the said A. B. : Now, the condition of the above obligation is such, that if the said A. B. shall appear at the next term of the court of Common Pleas of the said county, and then and there present bis petition for the benefit of the insolvent laws of this commonwealth, and comply with all the requisitions of the said law, and abide all the orders of the said court in that behalf, or in default thereof, and if he fail in obtaining his discharge as an insolvent debtor, that he shall surrender himself to the jail of the said county ; then this obligation to be void, other- wise to be and remain in full force and virtue. Sealed and delivered in the presence of G, H. and J. J. K. A. B. [seal.] C. D, [seal.] Having given bond, the petitioner, at the next term after having given it, files his final petition, consulting carefully the provisions contained in the 9th section of the act. IV. The following form, which v/as prepared with great care, has been generally adopted in Philadelphia : To the honourable the Judges of the Court of Common Pleas of Philadelphia county : The petition of A. B. respectfully showeth, that your petitioner is unable to pay and satisfy his just debts, and, therefore, is compelled to apply to this honourable court for the relief provided for insolvent debtors, by the existing laws of the Commonwealth of Pennsylvania ; that your petitioner has resided within the county of Philadelphia six months immediately preceding this his application, and is now willing ^nd offers to deliver up to the use of his creditors, all the estate, efifects, and property of him the said petitioner, wheresoever situate, and of whatsoever kind ; a statement whereof on oath or affirmation, and a statement of the debts due by him, containing the names of his creditors, the amount due to each, and the nature or character of the debts, so far as he can ascertain the same, together with a state- ment of the causes of his insolvency, and of the extent of his losses, accompanies and is exhibited with this petition. Your petitioner, therefore, prays the court to grant him the relief provided for insolvent debtors by the laws of the said commonwealth. (Signed,) A. B. • A. B., the above named petitioner, being duly sworn (or affirmed) according to law, saith, that the facts set forth in the above petition and in the accompanying statements are true to the best of his knowledge and belief. (Signed,) A. B. Sworn (or affirmed) and subscribed before me, this first day of November, A. D. 1844. (Signed,) P. Q., Justice (or Alderman). SMement of all the Estate, Effects, and Property of the within-named Petitioner, wheresoever situate and of whatsoever kind. Real Estate — One three-story brick house, situate atNo. 816, South Third street, county of Philadelphia, 16 feet front by 50 feet deep, upon which there is a mortgage of $1500. Personal Estate — Six shares of stock in the United States Bank ; $180 in money depo- sited in the Schuylkill Bank; four beds, bedstead and bedding, one sideboard, six chairs, three tables, one looking-glass, one stove, one carpet; also the necessary kitchen and cook- ing utensils, valued at about $10; also the necessary tools of his trade, (oarpenterO valued at $50. (2) (2) If an assignment or bill of sale be made, it is necessary to state the fact and file a copy of the instrument in the petition, together with an inventory or schedule of the property assigned. INSOLVENT LAWS. 293 Debit due Petitioner. L. P. $80 00 H. R 615 00 P. Q. • 318 00 N. H 3 50 (Signed,) A. B. For a valuable consideration, I hereby assign, transfer, and set over, unto P. R. & Co., and T. W., tlieir heirs and assigns, all my estate, effects and property whatsoever, and wheresoever, to which I am in any manner entitled, for the use of all my creditors. Witness my hand and seal, this 18th day of December, A. D. 1844. (Signed,) A. B. [seal.] Witnesses present. W. S. P. J. A. Q. Statement if the Debts due by the within^amed Petitioner, containing the names ef his Creditors, the amount due to each, and the nature or character of the debts, so far as he can ascertain the same. E. F. Judgment and bond filed, $90 00 P. R.&Co. Do. 618 00 S. L. Note, 114 00 T. S Book account, 39 00 L. D. T. Rent, 68 00 Dr. S. S. P. Medical attendance, 5 00 J. R., Esq. ----- Professional services, -.- 10 00 L. G. T. Claim disputed, about 318 00 J. Well, ----- Endorsement of note, - -- 15000 T. W. Money borrowed, 527 00 Statement of the causes of the within-named Petitioner's Insolvency, and of the extent cfhis losses, YOUR petitioner commenced business in January, 1838, upon a borrowed capital of $537 ; from that time until the present period he has met with a succession of disasters, which, together with a want of sufficient business, has compelled him to apply to your honourable court for relief. He computes his loss to be as follows: loss by fire in March last about $300 ; loss upon contracting to build houses at certain prices, which he could not perform without expending a greater sum, about $300 ; and loss by non-payment of debts, good and bad, about $1016.50. Your petitioner, also, has a family to support, which has been afflicted with considerable sickness. (Signed,) A. B. To the final petition ought to be annexed, on the same sheet of paper, a state- ment of the property owned, and of the debts due by the petitioner, and also an account of the debts due to him, as well as a statement of the causes of his in- solvency, and the nature and extent of his losses. Of all these we have given form^'so full, immediately following the petition to the court of Common Fleas, that they may be easily modified so as to make them suit such cases as are usually presented to the courts. Where theje is intricacy, the petitioner will see the propriety, if he does not feel the necessity, of calling in professional assistance. In these, as well as in many other cases, which depend so entirely upon a strict adherence lo forms, and to the time and place at which those forms are to be pre- sented, and necessary notices to be given, it would seem, more than in any other class of cases, indispensably necessary to have the assistance of persons whose knowledge of the kind and correctness of the several forms required, and of the value of exactitude as to time and place to use them, forbid the probability of error or mistake. By the tenth section of the act, it is made the " duty of the court, to which any petition shall be presented, to fix a time for the hearing, either by a general order, or by an order to be made in the particular case." The petitioner may, at any time after filing his petition, and ascertaining the day of hearing — which in Phi- ladelphia is always stated in the order of business, issued by the court, before the commencement of the term — proceed, under the 11th section of the act, to give notice to his creditors of the filing of his petition, and of the time and place of hearing. 294 INSOLVENT LAWS. v. The following form of notice is equally suitable for public advertisement or private notices, - ... •■ Philadelphia, -NovemberZ, 1844. TAKE NOTICE, That I have applied to the Honourable Judges of the court df Common Pleas for the city and county of Philadelphia, for the benefit of the several acts of Insolvency of the Commonwealth of Pennsylvania, and they have appointed [Wednesday] the 18th day of November inst., at 10 o'clock, A. M., to hear me and my Creditors, at the County Court-house, corner of Sixth and Chestnut streets, in the said city of Philadelphia— wh^^, and where you may attend, if you think proper. Yours, &c. A, B. To E. F. Note By a regulation of the court of Common Pleas in Philadelphia, this notice must be published in two daily papers seven times, and the newspapers filed in the office of the prothonotary two days before the day of hearing ; and if the notice is personal, it is Requisite it be served on the creditor personally, or left at his dwelling-house. An affidavit must be made by the person who served the notices, giving a copy of the notice, and a statement of the time and manner in which each notice was served, and the proof must be filed in the prothonotary's office two days before the hearing. The notices cannot be servedby the petitioner himself Under these enactments, the court of Common Pleas of Philadelphia has made the following order ; VL "The affidavits of the service of personal notices, and papers containing public notices, inust be filed at least two days previous to the hearing. And whenever the opposing creditor of an applicant for the benefit of the insolvent law, shall require the proof of service of personal notice, to be made in open court, it shall be the duty of such opposing creditor to give notice, in writing, of such requisition, to the applicant on the same day that he makes his opposition, when he marks it on the day appointed for the hearing of the applicant, and if he marks it prior to that day, he shall give such notice, at least one day before the day appointed for the hearing as aforesaid ; otherwise the applicant will not be re- quired to make the proof in open court." The hearing and subsequent proceedings are regulated by the 12, 13, 14, 15, 16, 17, 18, and 19th sections of the act of Assembly. It is foreign to the objects of this notice to point out the duties of the trustees of an insolvent debtor ; or carry out the distribution of his effects among his creditors ; special and plain directions are given in the act of Assembly for this purpose and for the guidance of the trustees. VII. But the effect of the discharge upon the person of the insolvent, and upon other persons, is material to be ascertained, as a magistrate may oi^en be called upon for process of execution in cases involving the question of the liability or immunity of the insolvent person. The provisions which bear most directly upon these points, are to be found in the 31st, 33d, and 33d sections of the insolvent law. A magistrate, therefore, when a defendant attempts to avail himself of the pri- vilege given to him by the order of the court, made upon his discharge, in pur- suance of the 15th section of the act, should give the creditor an opportunity to fchow, by evidence, that he was not within it, because he had not received notice of the application by petition of a debtor who has elected to give personal notice, or he will issue an execution, in the usual form, where the debtor has obtained a discharge in a county where he did not reside at the time ; of which fact also the creditor may make proof. VIII. The usual mode of obtaining relief where a debtor was imprisoned under a magistrate's execution previously to the passage of the act of June 16, 1836, was by habeas corpus before the court- out of which the process issued, or, in vacation, to a judge. An opinion prevailed that the provisions of the 12th section of the act of March, 1814, had provided a special mode of " re-hearing- and dis- charging the arrested debtor out of custody, only, in cases where he was arrested by process out of the various courts of th* commonwealth, and not under a INSOLVENT LAWS. 295 . magistrate's execution ; although the arrest under the latter was clearly within the equity of the statute. Under the act of 1836, which is above published, the provisions of the 15th section are general, and the discharge is binding upon all tribunals to whom jj; is made known. A magistrate, therefore, would be justified in setting aside his own execution, after the defendant was in jail upon it, if the privilege acquired by his discharge should be satisfactorily made known to him. IX. In relation to the property of the discharged debtor, owned previously to his discharge, it is only material to inquire whether he may retain any, and, if any, what portion of his personal property after his discharge, and by what au thority, against his creditors. No change has bepn made in the law of execution by the insolvent laws. By the act of June, 1836, "relating to insolvent debtors," every insolvent (sect. 38) "shall be entitled to retain all such, articles as are, or may be, by law, exempt from levy and sale, on any execution, or from distress for rent, and the property in such articles shall not pass to his trustees." The 28th section makes provision- for the payment of the insolvent's rent " not exceeding one year." For what articles are exempt from execution, see title, " Execution^'' ante, page 228. A plaintiff who directed the levying of an execution on the exempted articles, ■ and the officer who executed the process, would be liable in trespass to the insol- vent debtor who had retained them, according to law. It is provided by the 48th section of the act, that " the real and personal estate acquired by any debtor after his discharge, shall be subject to his [former] debts, &c., in the same manner as if he had never been discharged, or taken in execu- tion for such debts." The 41st section makes provisions for an arrangement be- tween the insolvent and his creditors, by which his property, after such arrange- ment, shall be exempted " for seven years" for any debt contracted, &c. previ- ously to the discharge consequent on the arrangement so made with " a majority in number and value of his creditors residing within the. United States." A magistrate's execution is within. the equity of this provision, and it would be his duty to set aside a levy under an execution issued by himself, upon being satisfied that the defendant's property was protected by the proper proceedings had under this section. The criminal proceedings under this act are directed exclusively by the courts. If, however, it should be alleged that perjury has been committed, by an insolvent, in any stage of the proceedings, he may be arrested and bound over before a magistrate, as in the case of perjury committed in any other legal proceedings. FORM OF AN INSOLVENT'S DISCHARGE. PHILADELPHM COUNTY, ss. BE IT REMEMBERED, that at a court of Common Pleas held at Philadelphia, for the city and county of Philadelphia, in the Commonwealth of Pennsylvania, in [seal.] the term of September, in the year of our Lord one thousand eight hundred and forty-four, upon the petition of A. B. to the judges of the same court for relief as an insolvent debtor, agreeably to the acts of Assembly of this commonwealth ; it was ordered by the said court that he give notice to his respective creditors to ap- pear at the court-house in the said city, on the eighteenth day of November then next, to show cause, if any they have, why he should not receive the benefit of the provisions of the said acts of Assembly ; Snd he having appeared before the said court on the eigSileenth day of November, pursuant to the order of the said court, and it appearing that he had given public notice in the Pennsylvanian and Penn- sylvania Inquirer, or personal notice, to the several creditors of the said petitioner mentioned and marked in the list exhibited with the said petition, [if the notice is personal, it is imperative that a list of the creditors be here subjoined ; if public, it is not necessary,] notifying the said creditors of the time and place appointed by the said court for proceeding upon the said petition : and the court having examined into the matter of the said petition, and no cause being shown why the prayer of the petitioner should not he granted, he took the oath prescribed by law for the relief of insolvent debtors ; and he having made an assignment of all his estate, real and personal, in trust for the use and benefit of all his creditors, to P. B. & Co, and T. W,, he the said A, B. was discharged ; and it was thereupon ordered by the said court that the said petitioner shall not at any time thereafter be 296 _ INSOLVENT LAWS. liable to imprisonment by reason of any judgment or decree obtained for payment of money only, or for any debt, damage, costs, sum or sums of money, contracted, accrued, occasioned, owing, or becoming due before the time of such assignment. In testimony whereof, I have hereunto set my hand and affixed the seal of the said court, at Philadelphia, the 18th day of November, in the year of our Lord one thousand eight hundred and forty-four. N. O., Prothonotary. X. 1. The rule, since Miller v. Hall, has been to discharge on common bail, in cases where the debtor was discharged by the bankrupt law of the state, or terri- tory, where the debt was contracted, and where he resided, unless such state refuses to extend the same courtesy to the citizens of Pennsylvania ; and it will be presumed, it does, unless some reason is shown to the contrary. 3 Binn. 20L 2. In the case of British subjects, a discharge under the bankrupt laws of England will protect the person of a bankrupt in this state. 2 D. 256. 2 F. 99. 3. The insolvent law of the 26th of March, 1814, discharges the defendant's person as to a note drawn before, and payable (tfter his discharge. S S.Sf S. 559. 4. The assignment of an insolvent debtor, under the act of Assembly, passes all his property, whether mentioned in the petition or schedule, or not. 6 Binn. 189. 5. The discharge of an insolvent only exempts his person from arrest for debts previously contracted; but leaves his effects /or ever liable to his creditors ; and therefore a creditor, or assignee of a creditor, may always set off a boiid, note, or any previous debt, against a demand by the insolvent, for goods sold and deli- vered, or any other debt contracted to the insolvent after his discharge. 1 2). 455. 6. The trustees of an insolvent debtor cannot sustain an action, in right of the insolvent, without having first given bonds. 2 P. R. 262. 7. If a person be discharged, in another state, by a special insolvent act, local in its nature and terms, he is not protected' thereby from his creditors here. 1 D. 188. 8. A surety, who pays the bond after the discharge of an insolvent, is not barred by the discharge,*as he could not have been entitled to a dividend of the debtor's effects. 2 D. 336. 9. The discharge of an insolvent does not impair, the lien of a judgment. 6 Binn. 391. 10. An insolvent debtor, who has assigned his property, cannot sue for a cause of action existing at the time of the assignment, in his own name, though em- powered by his creditors, and though the assignees have not acted. 9 S.^R. 434. 11. When a suit is brought for the use of a party who is discharged, as an insolvent debtor, pending the action, the court will permit such action to be marked for the use of the assignees at the trial of the cause. 11 S. ^ R. 78. 12. The bond, to be given by the insolvent under the first section of the act of the 28th March, 1820, is to be for the benefit only of the arresting creditor: if .taken for the use of other creditors it- is void. 12 S. ^ R. 190. 13. A note given by an insolvent to his creditor to induce him to sign the peti- tion for the benefit of the insolvent act, is void ; though the signature of the payee is the last to the petition, and though independently of him, the insolvent had a sufficiency in nu mber and value to obtain his discharge ; nor does leaving a blank for the date, to be filled after the insolvent's exoneration, cure the defect, and such note, being void in its creation, is incapable of being rendered valid by a sjibse- guent promise to pay it. 3 Caine R. 213. ' 14. An insolvent debtor who has assigned his property cannot maintain an action in his own name, where the cause of action accrued at, or previously to, the assignment, (2 D. 276,) though his assignees have not given bond pursuant to the insolvent act, (3 Y. 520,) or even though empowered by his creditors, and his assignees have not acted, (9 S. ^ R. 434,) unless when he sues for a cause of action which did not pass by the assignment ; as for a malicious abuse of legal process in seizing his goods prior to the assignment, (4 S. Sp R. 19, 28,) or for an excessive distress of rent. 13 S. fy R. 64. 15. An absolute and unconditional promise, by one who has been discharged by the insolvent law of this commonwealth, to pay a debt which existed before his discharge, creates a new contract upon virhich suit may be brought. 4 R. 452. INSOLVENT LAWS. 297 16. It has been expressly decided that a citizen of another state cannot give bond, but must remain in jail until discharged. {Ing. Insolv.2S,2ded.) [Qu. He will, however, be discharged on non-payment of the bread money, if application for it shall have been made according to law.) (3) •xlT. An infant, though he cannot be a bankrupt, is liable for necessaries, and may;;be taken in execution upon a judgment recovered for them, and might give bond ; though it would be voidable as to him, it would bind the surety. Ibid. 33. 18. The plaintiff in a suit upon the bond cannot recover the penalty, or the costs and expenses of opposing the defendant at the hearing, but is restricted to the amount of the debt, interest, and costs, for which the defendant was in custody. Ibid. 33. 19. The assignee of an insolvent may dispose of his effects, so as to make the most of them ; he may consequently dispose of a doubtful security at a price sup- posed to be fair, though less than the nominal value. 7 W. 84. 20. When from any cause the petitioner is refused the benefit of a discharge, he must surrender himself to prison, and remain there until the next term, and apply under the act of 26th March, 1814, if he does not wish his bond to be for- feited, for he cannot give a new bond to the same plaintiff. Ing. Insolv. 2d ed. 28. 21. A voluntary surrender of himself by one who had given bond to take the benefit of the insolvent laws, will not relieve his bail from the obligations contained in his bond. 1 PT. ^ S. 379. 22. A bond given by an insolvent debtor to obtain his discharge from impri- sonment, under the Pennsylvania statute of March 28, 1820, if it materially vary from that which the statute prescribes, is void. (14 S. fy E. 380.) The bond is for the benefit of the arresting creditor only, and if taken for the use of other creditors is void. 13 S. Sf R. 109. 23. If the debtor obtain his discharge at the next court, his surety is discharged, though the debtor had personal property when he was arrested ; and so though the discharge was under a petition pending at the time of the arrest. 14 S. Sf R. 380. 24. In an action on the bond, the record of the discharge of the insolvent is conclusive as to his compliance with all things required by law to entitle him to ~ a discharge. 14 S. Sf R. 173. 25. Where the bond is forfeited by the debtor's failure to file his petition in time to be heard at the time fixed for the term, execution may go against him as soon as it can be legally ascertained that he has not complied with the law, (1 ^sh. 35,) and the court cannot relieve the sureties by allowing the petition to be filed and heard at a later day. 1 Ash. 102. 26. A justice of the peace has jurisdiction of an action on an insolvent bond, being in amount not exceeding $100 ; and if upon such bond the action originates in court, the plaintiff is not entitled to recover costs. 3 P. R. 64. 27. Under the 17fh section of the act of 10th June, 1836, the defendant in an action of slander, where the judgment was more than one hundred dollars, is entitled to a discharge from custody on giving bond, although he has not undergone the sixty days' imprisonment required by the said section. But he will not be discharged on the final hearing until this requisition of the act be complied with. 3 Perm. L. J. 303. 28. A defendant in execution at the suit of the United States, is not entitled to be discharged from arrest, upder the act of congress of 28th February, 1839, in conse- quence of having taken the benefit of the insolvent laws of Pennsylvania. 2 Am. L. J. 204. (3) The act of 26th March, 1814, above referred to, provides that it shall be the duty of the several courts of common pleas to fix and order a daily allowance, not exceeding twenty cents, for all such poor insolvent debtors, as may be confined in the prison of their respective counties, and have not sufficient property to support themselves ; and upon failure of the plaintiff to pay such allowance, weekly, after notice in the manner therein prescribed, the defendant may be dis- charged, and shall not be again imprisoned for the same debt. Purd. 613. Dunl. 307. The common pleas has exclusive jurisdiction to discharge defendants under this act' 6 Barr, 445. The act only applies to poor and insolvent dehors : a defendant in an action for tort is not entitled to a discharge : in such cases the coimty is liable for his support. Ibid. By act of 16th July, 1842, the sheriff or jailer may recover the allowance from the plaintiff. Purd. 588. Durd. 978! 298 INTEREST. On a covenant or promise to pay a sum of money by instalments, an action of covenant, on assumpsit, will lie, immediately, on the non-payment of the /^^ instalment. 1 Inst. 293. So if money is awarded to be paid at differenWays, assumpsit will lie, on the award, for each sum, as it becomes due, and the pMntiff shall recover damages accordingly ; and when another sum of the money awarded shall become due, the plaintiff may commence a new action for that also ; and so on toties quotie^, [until all the debt is recovered.] 2 Saund. 337. Unttxtnt* I. What is interest 1 II. The rate of interest in all the states, &c. III. The rate 6 per cent, in Pennsylvania, and a penalty on taking more. IV. Interest on judgments to be carried down to the time of sale or satisfaction, y. Authorities and judicial decisions. I. Interest of money, the legal profits or recompense allowed on loans of mo- ney to be taken from the borrowei by the lender. Jacob. II. The following are the rates of interest in the States and Territories of the Union. In Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecti- cut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Tennessee, Kentudky, Ohio, Illinois, Indiana, and District of Columbia, six per cent. In Missouri, Iowa, and Arkansas, six per cent., and by agreement as high as ten. In New York, South Carolina, Greorgia, and Michigan, seven per cent. In Wisconsin, seven per cent., and by agreement any amount. In Greorgia and Alabama, eight per cent. In Mississippi, eight per cent., and by agreement as high as ten. In Louisiana, five per cent. Bank interest, six ; conventional, as high as ten. In Florida, six per cent., and by agreement as high as eight. In Texas, eight per cent., and by agreement as high as twelve. On debts and judgments in favour of the United States, interest is computed at six per cent, a year. III. Act of March 2, 1723. Purd. 649. Dunl. 76. Sect. I. No person shall, directly or indirectly, for any bonds or contracts to be made after the publication of this act, take for the loan or use of money, or any other commodities above the value of six pounds for the forbearance of one hundred pounds, or the value thereof, for one year, and so proportionably for a greater or lesser sum. 13 S. 8f R. 221. 13 S. Sf R. 47. Sect. II. If any person whatsoever do or shall receive or take more than six pounds per cent, per annum, on any such bond or contract as aforesaid, upon conviction thereof, the person or persons so offending shall forfeit the money and other things lent, one half thereof to the governor for the support of government, and the other half to the person who shall sue for the same, by action of debt, bill, plaint, or information, in any court of record within this province, [common- wealth,] wherein no essoin, protection, or wager of law, or any more than one imparlance shall be allowed. (1) IV. Act of 1700. Purd. 649. Dunl. 38. Sect. II. Provided always, that lawful interest shall be allowed to the creditor for the sum or value he obtained judgment for, from the time the said judgment was obtained till the time of sale, or till satisfaction be made. - (1) By act of 28th January, 1777, all fines and forfeitures granted to the governor of Pennsyl- vania, shall be for the use of the state, and shall be paid into the state treasurv. Purd. .57. Dutd. 120. ^ INTEREST. 299 V. 1. A tender of the sum due does not amount to an actual payment and dis- charge ; but it suspends the interest until a subsequent demand and refusal. 1 D. 407. 2. A factor or agent, who does not with due diligence remit the money of his principal, is chargeable with interest. 1 D. 343. 3. Money paid on account of a bond should first be applied to the discharge of the interest due, and the residue credited towards the satisfaction of the prin- cipal. 1 n. 378. 4. Interest must be paid according to the law of the country where the debt was contracted and not according to that where the debt is sued for. 4 Johns. R. 183. 2TV.SrS. 337. 2 Wash. C. C. R. 253. 3 Johns. Ch. R. 587. 5. The rule of law is, that interest is allowed on goods sold and delivered, and on all open accounts, where by the usual course of dealing, or by express agree- ments, a certain time is fixed for payment ; on money lent and advanced for work, and labour done ; on arrears of rent, unless it would be inferred by the land- lord's conduct that he did not mean to insist upon it, or he demands more than is due, or there are other special circumstances, which might make the charge of interest improper ; and, generally, whenever one person detains the money of another without any right, and against his consent. 6 Binn. 162. \ S. 8f R. 176. 1 D. 315, 349. 2 D. 193. 4 D. 289. 6. In cases where interest is not of course, but depends on the conduct of the parties, if the defendant before suit offers to pay as much as is due, and the plain- tiff refuses to receive it, the defendant is not liable to pay interest. But if the plaintiff insists on too much, and the defendant offers too little, there is a necessity for the suit, and the defendant must pay interest. 3 Binn. 295. 7. Where sums have been received by administrators, after the expiration of a year, interest is not chargeable from the day they were received, but the court will allow six months from those times, respectively, before the charge of interest is to commence. 1 Jish. 305. 8. It has been held that where the condition of a bond was for the payment of interest annually, and the principal at a distant day, the interest might be recovered before the principal was due, by an action of debt on the bond. 1 Binn. 152. * 9. The debtor is not exempted from the payment of interest by the continued absence of the creditor, at a distance from the state, and his not being heard of for many years. 9 S. ^ R. 263. 10. Where money is received, as well as paid in a mistake, and neither fraud nor surprise, nor suppressio veri, ["suppression of the truth,] nor suggestio falsi, [fuhe suggestion,] can be imputed to either party, interest shall not be allowed, in an action to recover the money back. 1 D. 52. 11. In the case of promissory notes, where a day certain is fixed for payment, interest is allowed from the day of payment ; and where no day is fixed, it is payable from the time of demand. Ibid. 12. Interest is an incident of every judgment in Pennsylvania. 42). 251. 13. Where there is no usage, nor precise time of payment, no account rendered, nor demand made, it is for the jury [or the justice] to give interest, by way of damages, for the delay, at their discretion, under all the circumstances of the case. 12 S. 8r R. 393. 14. A practice, by a storekeeper, to balance his books at the end of each year, and charge interest on the balance of a running account upon which there has been no settlement, is illegal. 16 S. ^ R. 357. 15. If a party accepts the principal of his debt, he cannot afterwards sue for the interest. 3 Johns. 229. 16. Where a balance of an account is paid without any charge of interest, in- terest cannot afterwards be demanded. 3 Johns. Ch. R. 587. 17. A bill payable on demand carries interest only from the time of demand. 16 S. fy R. 264. .3. 137. 18. Where a note is made payable, in a certain number of years, with interest annually, only simple interest can be recovered on the principal sum. 8 Mass. iZ«p. 453. • • 19. Although interest upon interest is, in general, unlawful, yet there are cases 300 INTEREST, USURIOUS. in Which interest is considered as changed into principal, and permitted to carry interest ; as where a settlement of accounts takes place afUr interest has become due, or an agreement is made after it becomes due, that it shall carry interest. Any agreement for interest upon interest, to be lawful, must be made after the interest has become due, and must be prospective, that the interest then due shall carry interest. An original agreement, that if the interest is not paid at the time it shall be due, it shall carry interest, though it would not amount to usury, so as to render the contract connected with it illegal and void, yet the party cannot recover such interest, either at law or in equity. 4 V. 220. 7 S. ^ R. 15. Jl Vesey,J. 93. . 20. Compound interest may be recovered on an express promise, or one implied 'by law as part of the contract. 1 Bald. 536. An account made up of principal and interest becomes one principal debt when settled, the aggregate balance bearing interest. Ibid. An account current received and not objected to within a reasonable time, becomes a settled account, bearing interest from the time it is stated. Ibid. 21. The plaintiff, in an action of covenant on a ground-rent deed, is entitled to interest on the arrears of ground-rent from the several days on which the ground- rent was payable. 4 Wh. 516. 22. Bond dated in 1830, conditioned for the payment of money on the 1st of April, 1832, with three per cent, interest from the date, the plaintiff is entitled to recover interest at three per cent, till the time of payment, and after that legal interest at the rate of six per cent, b W. Sf S. b\. I. What is usury ? | II. Judicial Authorities. 1. 1. Usury is the interest or profit exacted for a loan beyond what is allowed by statute. 4 Bl. Com. 453. 2. If a certain gain be reserved to the lender, beades the interest, it is usury. A. 126. II. 1. A fair purchase may be made of a bond or note, even at twenty or thirty per cent, discount, without incurring the penalties of usury. 1 D. 217. 2 D. 92. 1 R. 196. So it is not usury for one to discount his own paper, at any rate of interest Falinder v. Jackson, Bist. Court, Phila., Dec. 28, 1850. And receiving interest in advance is no usury. 2 Bla. Rep. 79B. 4 F. 229. 2. If one takes usurious interest, he incurs a forfeiture ; but in an action brought to recover the amount of the loan, he is nevertheless entitled to a verdict. 2 D. 92. 12 S. ^ R. 46. 3. Any contrivance to get round the statute against usury, no odds how indirect, if the object is to receive more than six per cent, per annum, for the mere use of money, is usurious. 13 S. fy R- 218. 5 Ibid. 51. 4. The bona Jide holder of a note given on an usurious contract, will not be affected by the unlawfulness of the transaction, if he took it without knowledge of the usurious consideration. 4 Wh. 223. 5. The receipt of money on account of an usurious contract, is a consummation of the offence, from the consequences of which the party cannot relieve himself by a subsequent release of the excess which was usurious. AW. fy S. 115. 6. Under the act of 2d March, 1723, the offence of taking usurious interest is committed by every successive receipt of such interest; and under the 6th section of the act of 26th March, 1785, a suit to recover the penalty may be brought with- in a year after the last successive receipt of such interest. 4 Ibid. 449. 7. By act of 26th July, 1842, sect. 11, whenever any railroad or canal company has borrowed money, and given to the lender a bond, or other evidence of indebted- ness, in a larger sum than the amount actually received, such transaction shall not be deemed usurious, or in violation of any law of the commonwealth, prohibiting the taking of more than six per cent, interest. Purd. 649. Dunl. 980. JUDGMENT. 301 It is thought that the following authorities, without the acts on the subject, will be sufficient for the Magistracy. The acts in relation to jails, in Pennsylvania, are so numerous and so voluminous, that their insertion would exclude other matter more essential to accomplish the ends contemplated by this publication. So humane, judicious, and well conducted have been our penitentiaries, that our system and regulations on the subject have commanded not only the attention and approbation of the civilized world, but they have been adopted, even to the plan of our prisons and their regulations, by the governments of Great Britain, France, Russia, Prussia, and the greater part of Germany. It is somewhat foseign to the object of this publication, yet the following is a circumstance of so extraordinary a nature, that we think its publication here will be excused : — In the summer of 1842, a well-dressed young Englishman — the name is of no moment — applied to the chief magistrate of Philadelphia to be committed, for some months, to the county prison in Moyamensing. This request was not granted, there being no complaint against the person making the application. The applicant, however, was not thus to be put aside. He threatened to commit a breach of the peace, and refusing to give bail, was com- mitted to the county prison. At his own request he was put into a cell or room, and a loom was given him, in which he worked for about twenty months, submitting in all things, as to food, raiment, exercise and labour, to the discipline of the prison. He then gave bail, and was discharged. He was permitted to have a memoranda book and pencil, with which he made such notes as he pleased, and took the book with him, when he finally left the prison. Various were the conjectures as to the motives of this individual, but of them nothing certain was ever ascertained. His conduct was exemplary. We made frequent inquiries, but never heard of his murmuring or complaining. He became an excellent weaver. It was under- stood that on his liberation he returned to Great Britain. 1. A JAILER is punishable for barbarously misusing his prisoners. Hawk. P. C. 83. So overseers of the poor, for misusing paupers, as by lodging them in unwholesome apartments, (Wetherill's case, Calcl. 432,) or by exacting labour from such as are unfit to work. Ibid. 76. 3. When a person convicted of passing counterfeit notes was sentenced, in the year 1828, to imprisonment at hard labour for a certain number of years, in the jail and penitentiary for the city and county of Philadelphia; and in pursuance of that sentence was confined m the Walnut street prison, in the city of Phila- delphia ; and upon the sale of that building was removed, with other prisoners, to the Arch street prison in the same city, and there kept, without being put at hard labour, it was held that he was not entitled to be discharged on habeas corpus, 1 JVIi. 439. 3. A person convicted in the city and county of Philadelphia, and sentenced, in 1832, to imprisonment in the jail and penitentiary of that city and county, for a term of two years or more, ought, upon the sale of that prison, to have been re- moved to the Eastern Penitentiary, and not to the Philadelphia County Prison ; but the court will not, on that account, discharge the prisoner on habeas corpus. Ibid. 445. 1. It is the duty of a justice, on an allegation made by a defendant and sup- ported by affidavit of a just and legal defence, arising from facts occurring cfter judgment, to grant a rule to show cause why the judgment should not be opened and a hearing given. C. C. P. Phil. 1820. 2. Justices of the peace have a power similar to that in daily exercise by courts of justice, to open a judgment, if it is apparent that the process has been wrong- fully or fraudulently abused. 1 Ash. 149. 3. The opening or refusing to open a judgment by a justice of the peace, is a matter resting in his discretion, the due exercise of which is not examinable on a writ of certiorari. Ibid. 149. 302 JUDGMENT, LIEN OF. 4. Judgment before a justice of the peace is sufficient to defeat a freeholder's' privilege of being sued by summons. 1 D. 436. 5. The record of a judgment rendered in one state, is not merely evidence in every other state that such a judgment was rendered, but conclusive of the right which it has decided. 1 Peters' C. C. 74, 155. . 6. To make a record from another state conclusive evidence, and to give it full faith and credit in the courts of this state, it must be authenticated according to the act of Congress of May 26, 1790, but a copy of a record not certified according to the act, may still be received as prima facie evidence. 2 V. 532. (1) 7. A judgment on an award against two, is erroneous, if one of the defendants only had notice of the rule of reference. 12 S. fy B. 412. 8. The judgment of a justice of Jhe peace given merely on the attestation of the party interested, cannot be sustained. 2 B. 78. If defendant make default on return of the summons, the justice cannot give judgment for the plaintiff with- out proof of his demand; but it must be proved in the same manner as if de- fendant appeared and denied it. 10 Johns. 106. 9. If there be judgment against two, and one of them dies, the plaintiff may have execution against the survivor. 1 Esp. 310. 10. A judgment fairly obtained in another state is conclusive evidence of a deT)t ; assumpsit therefore will not lie on such a judgment. 7 W. 315. 1 1. The validity of a judgment of a justice of the peace cannot be controverted in a collateral proceeding by a stranger to it. 10 W. 101. 12. It is essential to the validity of a judgment of a justice of the peace far a- sum exceeding $100, that it should appear upon the face of his record that the parties appeared in person before him, and confessed the judgment. Without this the judgment is absolutely void, and therefore not the subject of ratification. 10 W. 118. 13. The sale of a defendant's personal property to the plaintiff upon avoid judgment vests no property in him. Ibid. 14. It seems that if two defendants are sued and only one is served with pro- cess, and appears and makes defence, a judgment entered generally is a judgment against such defendant only. 2 W. ^ S. 553. 15. When the writ is served upon one of two defendants, and there is a general appearance by attorney and trial of the cause upon its merits, the verdict and judgment will be sustained although the issue be- by one only. 2 JV. ^ S, 121. J6. A judgment erroneously entered is valid until reversed. 2 S, ^ R. 142. 17< The judgment of a justice in a cause of which he has jurisdiction is con- clusive upon the parties,' however erroneous, unless reversed on cerliorari.«or appeal. 9 S. fy R. 12. I. Acts relating to judgment liens. [ II. Judicial authorities and decisions. Act of April 4, 1798. Purd. 660. Bunl. 209. Sect. IJ. No judgment hereafter entered in any court of record within this com- monwealth shall continue a lien on the real estate of the person against whom such judgment may be entered; during a longer term than five years, [from the first re- turn-day of the term, of which such judgment may be so entered,] unless the person who may obtain such judgment, or his legal representatives, or other persons inte* rested, shall, within the said term of five years, sue out a writ of scire facias to re- vive the same. (1) The judgment of a justice of the peace of another state, is not a record, and cannot be ceri tified under the act of congress, so as to make the exemplification thereof competent evidence. 10 Barr, 157. It should be proved by a sworn or examined copy of the justice's docket, (4 Y. 501, 14 S. & R- 440, AW.igS. 192,) except in cases withir the provisions jf tlie act of 27th February 1845 Purd. 704. Dunl. 1033 JUDGMENT, LIEN OF. 303 Jlct of March 2G,IS27. Purd. 661. Bunl. 466. Sect. I. From and after the passage of this act, all judgments entered in any court of record of this commonwealth, or revived in manner prescribed by this act, or the act to which this is a supplement, shall continue a lien on the real estate of the defendant for the term of five years, from the day of entry or revival thereof; and no judgment shall continue a lien on such real estate for a longer period than five years from the day in which such judgment may be entered or revived, unless revived within that period by agreement of the parties, and terre- tenants, filed in writing, and entered in the proper docket, or a writ oi scire facias to revive the same, be sued out within said period, according to the provisions of the act to which this is a supplement, notwithstanding an execution may be issued within a year and a day from the rendering of such judgment, or a stay of execution may be entered on such judgment; or a time subsequent to the rendering of such judgment may be appointed by the agreement of the parties, for the payment of the money for which such judgment may be rendered, or any part thereof, or notwithstanding any other condition or contingency may be attached to such judgment ; nor shall the revival of such judgment by agreement as aforesaid, or the issuing of a scire facias, either with, or without, entry of judgment thereon, have the effect of continuing such lien for a longer period than five years from the day on which it may be revived, as aforesaid, or such scire facias may have issued. 1 W. 393, 397. 2 E. 224. 4 W. 208, 342. 5 Ibid. 163. ^cio/FeJraary 24, 1834. Pwrd. 476. i?KnZ. 589. Sect. XXV. All judgments, which at the time of the death of a decedent sh^ll be a lien on his real estate, shall continue to bind such estate during the term of five years from his death, although such judgments be not revived by scire facias, or otherwise, after his death; and such judgments shall, during such time, rank according to their priority at the time of such death, and after the expiration of such terra,, such judgments shall not continue a lien on the real estate of such de- cedent as against a bona fide purchaser, mortgagee, or other judgment creditor of such decedent, unless revived by scire facias or otherwise, according to the laws regulating the revival of judgments. 2.Wh. 372. 11. 1. A judgment is the .sentence of the law, pronounced by the court, upon the matter contained in the record. 3 Bl. Com. 395. 2. Judgments are of four sorts : 1. Where the facts are confessed by the parties, and the law determined by the court, as in case of judgment by demurrer. 2. Where the law is admitted by the parties, and the facts disputed, as in case of judgment upon a verdict. 3. Where both the fact and the law arising thereon are admitted by the defendant, which is the case of judgment by confession or default : or 4. Where the plaintiff is convinced that fact, or law, or both are in- sufficient to support his action, and therefore abandons or withdraws his prose- cution, which is the case in judgments upon a nonsuit or retraxit. Ibid. 396. 3. Interlocutory judgments, at law, are such as are given in the middle of a cause, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit. 3 Ibid. 395. 4. Final judgments are such as at once put an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. 3 Ibid. 398. 5. A judgment in civil cases, before an alderman or justice of the peace, is the decision of the magistrate on the law and the evidence which has been laid before him in some dispute or suit; which decision, when entered on the docket of the justice, is called a judgment. 6. The judgment of the magistrate is given under some one of the following circumstances : — First. When, on the return-day of the summons, the defendant appears and the plaintiff does not, then, at the request of the defendant, judgment of nonsuit may 304 JUDGMENT, LIEN OF. be entered in his favour, with fifty cents for his trouble and loss of time, to be paid by the plaintiff (1) ■ • e Second. When the plaintiff appears and makes out his claim in the absence of the defendant, who, notwithstanding he has been duly notified to appear, has neglected or refused to attend. In such a case judgment is given for the plaintiff and against the defendant or defendants, for the amount proved to be due by him or them. Third. When the parties appear, after hearing their proofs and allegations, then the judgment should be given for whichsoever party, plaintiff or defendant, shall have made proof of the indebtedness of the other party to the satisfaction of the justice. Fourth. When the parties appear and the defendant acknowledges his indebted- ness to the plaintiff for the amount he claims, then judgment is given for the amount by confession. Fifth. Upon the award of referees, the justice having first duly notified the parties to appear at his office. Sixth. When the parties voluntarily appear before the justice, and enter an ami- cable action. In this case the judgment is usually, but not always, by confession. 7. A judgment obtained before a magistrate is a lien upon the real estate of the defendant only from the time a transcript of such judgment is entered on the docket of the prothonotary of the proper county. See sect. 10, act of 1810. 8. Judgments obtained before justices of the peace, when filed in court, are on the same footing ' and entitled to the same priority with judgments in court. 1 5inn. 221. 9. A transcript entered on the docket of the Common Pleas is, as regards real estate, virtually a jiidgment of that court. 1 P. R. 80. A judgment is not a jjen on lands purchased by defendant after the judgment, and aliened 6onffl_/?rfe,- before execution. 2 Y. 23. 6 Binn. 135. 10. But the revival of a judgment by scire facias creates a lien on the property acquired since the original judgment. 1 P. R. 64. ' 11. A transcript of a judgment of a justice of the peace, when fifed in the Common Pleas according to the 10th section of the act of 1810, becomes a record of that court, and a sci. fa. qu. executio nan, may issue upon it therefrom. 3 PT. 381. 12. A transcript of the judgment of a justice of the peace, filed in the Common Pleas, creates no lien upon the defendant's real estate, if an appeal be entered before the justice within the time limited by law. 7 TV. 540. 13. A scire facias to revive a judgment of a justice, of which a transcript has been filed in the Common Pleas, agreeably to the act of 1810, must be issued from the Common Pleas, and not by the justice. 8 S. ^ R. 479. 14. The period from which the lien of a judgment runs, is not from the return of the scire facias, but from the date of the judgment of revival. 5 TV. 163. 15. The supplementary act of the. 26th of March, 1827, was enacted for the purpose of restraining the practices which had crept in under the act of the 4lh of April, 1798, of constructive revivals of judgments by the issuing of execution, or by stay of execution, or of dispensing with revivals because the money was payable in future, or on a condition or contingency attached to a confession of the judgment, in all which cases it had been held by the court, or contended by counsel, that the lien would continue without issuing a scire facias within the five years. This act also altered the date from which the revival was to be reckoned, doing .away the relation to the return-day prescribed by the act of 1798, as the time from which the five years were to commence. Another and most material object of the act of 1827 was, to regulate revivals by the agreement of the parties, concerning which nothing had been said in the act of 1798, but which had become a common usage. It therefore prescribes precise and positive provisions as to them, pointing out (1) A compulsory nonsuit of a justice, after the parties hate appeared before him, is conclusive^ the suit, unless appeded from ; for, havings no power to enter such a judgment, it is equivalent to a judgment that the plaintiff has no cause of action. 2 Barr, 89. JUSTICES OF THE PEACE, OR ALDERMEN. 30S the mode in which they shall be authenticated, the pairties competent to enter into them, and the time for which the lien shall, in that case, endure.— iSera". /. bJV.^S. 354. 16. On a scire facias to revive a judgment, the defendant can make no other defence than either to deny the original judgment altogether, or to show that it has been satisfied since it was rendered. In no case, nor under any circum- stances, can the merits of the original judgment be inquired into. 5 <$. $■ R. 68, 69. 3Ju0ttces of tt)t ^tntt, ov miifttmm. I. The antiquity and authority of this officer as a conservator of the public peace. II. The early civil jurisdiction of justices of the peace in Pennsylvania. III. &IX. How, by whom, and for how long, justices shall be elected. IV. Aldermen and justices magistrates of the same character and authority, &c. v. Their authority and duties in criminal cases. VI. Of issuing a criminal warrant, and its import. VII. Proceedings when the accused is be- fore the justice ; and Vm. Of the right of the accused to be heard by counsel. IX. Times and places at which aldermen and justices shall be elected. X. Copy of an alderman's commission and oath of office. XI. Proceedings in civil suits before a jus- tice of the peace. XII. Proceedings in a criminal case be- fore a justice of the peace. Xni. Acts of Assembly, touching their duties. XIV. Judicial decisions. I. "Justices of the peace," says Ballon-, c. 3, " are judges of record, appointed '' by the king £ia England, but in Pennsylvania elected by the people] to be jus- tices, within certain limits, for the conservation of the peace, and for the execu- tion of divers things comprehended within their commissions, and divers statutes [acts of Assembly] committed to their care." This definition of a justice of the peace seems to be considered so sufficient, to this day, as to command a place in some of the latest and most approved English law publications. Hollinshead reports that William the Conqueror ordained justices of the peace. This, however,seems to be doubted hy Ballon; — himself an early and valued writer on this subject. He thinks they were established about 1337, by Edward III. The statute here referred to, by Justice Ballon; — seems rather to carry with it the idea that Edward III., at the pferiod spoken of, apportioned and located these - officers, so that, in every shire, there shoul4 be a certain number of justices, to ■ keep the peace. Their power was from time to time enlarged. In 3 H. 5, c. 1, . it was enacted that justices of the peace should be made "of the most sufficient persons dwelling in the several counties." " They be" says Mr. Ballon, " called justices [of the peace] because they be judges of record, and withall to put them . in mind [by their name] that they are to do justice [which is to yield to every man his own, according to the laws, customs, and statutes of this realm] without ■ respect of persons." " They may," he says, in another part of his Country Jus- tice, " take a recbg;nisance for the peace, &c., which is a matter of record, and \ which none can do but a judge of record." ' These quotations are accurately taken, and printed exactly as they are found in Bailouts Country Justice,'Loiadon, . printed 1763. " Justices of the peace are not," says Ballon, " to pervert justice, which may be done in many ways. They should arm themselves with the feai • of God, the love of truth and justice, and with the authority and knowledge of the laws and statutes of the realm." " They should do justice uprightly and indiffer- ■ enily, without delay, partiality, fear, or bribery; with stout and upright hearts - and uncorrupt hands." The Constitutioii of Pennsylvania, adopted in 1776, provided that justices of the peace should, by the freeholders, be elected in districts, and serve seven years. The Constitution, adopted in 1790, vested in the governor the power of ap- pointing and commissioning a competent number of justices of the peace, who ' ' held their offices "during good behaviour." V 306 JUSTICES OF THE PEACE, OR ALDERMEN. By the present Constitution, adopted in 1838, "the qualified voters" are to <5lect, and the governor to commission, the justices of the peace "for a term of five years." It would seem that the election of conservators of the peace was, in England, made by the people; until the 1 Edw. 3, c. 16, which act took from the people, and gave to the king, the appointment of these officers. The importance of the office at that early day (Edward III. died in 1376) may he safely, inferred from ilie enactment in the reign of his successor, Richard II., which provides, c. 7, that " the justices shall be made within the counties, of the most sufficient knights, esquires, and gentlemen of the law." There is, at this time, in England, a pro- perty qualification necessary to hold the office of justice of the peace, of not less ihan JlOO sterling a year. No property qualification has ever been required as necessary to qualify a citizen to hold the office of a justice of the peace, in Penn- isylvania, although a property qualification was, by the Constitution of 1776, made necjessary to qualify an elector to vote, for a justice of the peace. None but free- holders could vote at an election for justices of the peace, under the Constitution • of the year 1776. II. At a very early period, the justices of the peace, in Pennsylvania, were -vested with civil jurisdiction. So early as May 28, 1715, the Geiieral Assembly > of the province of Pennsylvania passed "an act for better determining debts and ' demands under forty shillings, and for laying aside the two weeks' court in the ' city of Philadelphia." In this act, exclusive jurisdiction was given to the jus- tices of peace to hear and give judgment in all such cases, " without further -appeal." They were authorized to issue execution, levy, make sale, and for want • of effects to send the defendant to the "jail of the proper county." Cases of "rent and contracts for real estate," were excluded from their jurisdiction. It is : somewhat remarkable, notwithstanding the great change in the value of money in 130 years, that the legislature have not enlarged the sum for which justices of rtiie peace may give judgment " without further appeal." It may not be improper \ here to remark, that since the passage of the hundred dollar law, March 20, 1810, 'the civil jurisdiction of the justices of the peace in matters of debt has not been extended. Their civil jurisdiction has, from time to time, been extended in amount, and enlarged, so as to embrace a variety of claims which were not before within its reach. "At present," says Judge Read, " their extensive civU jurisdic- tion constitutes an important branch of the jurisprudence of the commonwealth." Soon after the declaration of independence, a convention assembled in Penn- sylvania, to frame a new Constitution for the government of the state. One of their earliest acts was to oust from office all the justices of the peace that had been appointed under the proprietary government, and to appoint others, known to be favourable to the order of things about to he established. On the third of Septem- ber, 1776, "an ordinance for the appointment of justices of the peace for the state ■ of Pennsylvania," was passed in the State Convention, and "signed by their or- der, B. /VanA/in,' President." They appointed justices of the peace for the city .arid county of Philadelphia, and the counties of Bucks, Chester, Lancaster, York, Berks, Northampton, Northumberland, and Westmoreland ; these nine counties being all the counties then laid off in Pennsylvania. The convention gave the said justices " full power and authority to take acknowledgments of deeds ; . and cognisances of criminal offences ; and breaches of the peace ; and in cases of petty larceny, under five shillings, to proceed to punishment." They were sworn, or affirmed, "as justices of the peace, to do every thing, in that office, to thebesVof their knowledge and ability ; to support a government in this state on the authority of the people only." The justices, in their several counties, "were authorized to appoint jailers." In relation to criminal matters the power and duties of the justices of peace, in Pennsylvania, are the same as those exercised in England by the same class of officers, at the time pf the Revolution, except so far as they have been alteredhy our (Constitution and laws. Every criminal offence is presumed to he within the scope , of their authority to inquire into, to take bail, or commit the accused, unless it can be shown that the justice's jurisdiction was limited by the common law, or has been JUSTIcit!f5F THE PEACE, OR ALDERMEN. 307 limited, or taken away, by our Constitution or acts of Assembly. In civil matters it is quite otherwise ; and it cannot be too often repeated, that in all cases the justice must look to the express words of our acts of Assembly for the extent of his civil jurisdiction. The magistrates should be governed by the words of the law, and exercise no other power than that expressly tgiven, except it be to call to their aid the common law to carry the law, as written, into full effect. Where they have civil jurisdiction, they, in, most cases, hold the place, and exercise the authority of both court and jury. They pass upon the law and the facts. III. Justices of the peace, or aldermen, shall be elected in the several wards, boroughs, and' townships,' at the time of the election of constables, by the qaaliiied voters thereof, in such number as shall be directed by law; and shall be commis- sioned by the governor fpr a term of five years. But no township, ward, or dis- trict, shall elect more than two justices of peace, or aldermen, without the consent of a majority of the qualified electors within such township. Const. Penn., art, vi. sec. 7. In the Constitution of the state, the words "justices of the peace, or aldermen," are used as synonymous ; as representing a magistrate in all respects of the same authority and character. In the 38th section of the act of March 20th, 1810, it is provided that " the aldermen appointed within the city of Philadelphia, shall, in atl cases, exercise all the powers which any justice of the peace may exercise within any county of this state ; and shall be entitled to ZtAe^fees ; and, in all eases, shall be under, and subject to, such limitations, restrictions, and provisions, as jus- tices of the peace are, in like circumstances, subjected to by this act." ■ IV. In consequence of these provisions and enactments, these , ofiicers are, to all inteiits and purposes, the same ; enjoying like privileges and authorities, and entitled, for similar services, to like emoluments ; in a word, as one authority, act- ing under two different names, and in no other respect whatever differing from each other. It is for this reason that the names, aldermen or justices of the peace, are, occasionally,- just as they present themselves, used,^ David R. Porter, [Seal of commonwealth.] To John Binns, of the city of Philadelphia, Esquire : Whereas it appears by the return made and transmitted to me, according to law, that you, the said John Binns, have been duly elected an alderman of Walnut ward of the ciiy of Philadelphia ; Now know you, that in conformity with the Constitution and laws of the Commonwealth, in such case made and pro- vided, I do, by these presents, commission you to be an alderman in and for the said Walnut ward of the city of Philadelphia ,• hereby giving and granting unto you full right and title' to have and to execute all and singular the powers, jurisdictions, and authorities, and to receive and enjoy all and singular the emoluments, to an alderman lawfully belonging, or in any wise appertaining, by virtue of the Constitution and laws of this Commonwealth. To have and to hold this commission, and the office hereby granted unto you, the said John Bimts, for the term of five years, to be computed from the day of the date of these presents, if you shall so long behave yourself well. Given under my hand, and the great seal of the state, at Harrisburg, this fourieenih day ofjpril, in the year of our Lord one thousand eight hundred and forty, and of the common- wealth the sixty-fourth. By the Governor, [sekt.] FffS B. SHUNK, Secretary of the Commonwealth. On the back of this commission is the following written endorsement : FHILjIDELPHM, ss. I, George Smith, recorder of deeds, &c., for the city and county of Philadelphia, do cer- . tify, that on the 23d day of April, A. D. 1840, the within-named John Binns, Esq., person- ally appeared before me, and by virtue of a commission oi dedimxta potestatem, to me directed, was duly sworn to support the Constitution of the United States, and the Constitution of the state of Pennsylvania, and to execute and perform the duties of the office of alderman of Walnut ward of the city of Philadelphia, with fidelity, and according to the best of his judgment and abilities. And I further certify, that the within commission, and ihe said official oath, are recorded in my office, in commission book G. S., No. 2, page . [SEAL.] Witness my hand, and seal of ofiice, the 22d day of April, A. D. 1840. G, SMITH, Bee. XI. Outline 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 occurrence. Af- terwards examples will be given of suits in which objections and difficulties of law or fact arise. James Thompson holds a promissory note, and the protest thereof. The note is as follows : " $73 f^. Philadelphia, Jime 12, 1837. Three months after date, I promise to pay to Joseph Parker, or order, seventy-three ■A'j. dollars, without defalcation, for value received. (Signed,) WM. JACK." (Endorsed,) "JOSEPH PARKER." In September, 1843, Thompson, the holder of the note, finding that six years was about to expire since the protest of the note, and, consequently, that the statute of limitations would bar his remedy against the parties whose names are on it, unless suit were brought before the 15th September, 1843, determines to bring suit. Parker, the endorser, had taken the be- nefit of the bankrupt law, in 1842, so that he was no longer liable on the note. Thompsun, therefore, determines to sue the maker, William Jack, who has some property. He goes, therefore, to Alderman Ash, of the county of Philadelphia, and informs him he wishes to bring suit against William Jack. The alderman inquires for the residence of Jack, and finds it to be No. 30, North Eighth street, in the city of Philadelphia, whereupon he tells Thompson that the defendant does not reside within his jurisdiction, and that, there- 314 JUSTICES OF THE PEACE, OR ALDERMEN. fore, he had better apply to an alderman of the city for a summons in the case. Thompson then goes to the office of an alderman in the city, and orders a summons. [The form of the summons will be found under the head " Summoss. J This summons being 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 hun 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 inftrmmg him of the contents thereof, September 6, 1843. <*• «-. ComtaUe. The constable then hands the original summons to the alderman, who administers an oath to him, verifying the truth of the return. The alderman makes this memorandum on the back of the summons, and under the constable's return, viz. : " Sworn to the truth of this re- tarn, this 10th day of September, 1843. G. W. Aid." The alderman then files the summons. DOCKET-ENTllY IN THIS CASE. On , 13th September, 1843, at 10 o'clock, defendant appears in the alderman's office, and the plaintifi" not appearing, defendant asks for a nonsuit. The alderman informs him that the parties are allowed, by custom, a certain time, after the time named in the summons, to appear, which time has not yet expired ; but that if plaintifi', or his attorney, or agent, should not appear at the expiration of the time so allowed, a nonsuit would be entered. At 20 minutes past 10 o'clock, plaintifi" appears with his witnesses. The plaintifi", Thompson, produces the promissory note, and calls John Carr to prove the signature of Wm. Jack, the maker and defendant. The witness is sworn. Alderman. — Are you acquainted with the handwriting of William Jack 1 Carr, (the wit- ness.) — Yes, I am. Alderman. — How did you become acquainted with it? Witness. — I have seen him write. Alderman. — Look at the signature to this paper, (handing him the promissory note,) and say if you know that handwriting. Witness. — (After examining the signature.) I believe it to be the handwriting of "Wm. Jack, the defendant. Alderman, (to defendant.) — Do you wish to cross-examine the witness 1 Defendant, (to witness.) — When and where did you see me write 1 Witness. — ^I saw you write a receipt, about three years ago, in your own house, for money I paid you. At another time, about ayear ago, you came to my store, and wrote an order for several articles of gro- ceries, 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 handwritingl Witness. — I believe that to be your signature. Defendant submits to the alderman that witness cannot swear that to be his signature, but only swears as to his belief, and that the signature is not sufficiently proved. Alderman. — The witness having shown that he is acquainted with your handwriting, his belief that this is your signature is sufficient. Alderman, (to plaintiflT.) — You must also pi'ove the signature of the endorser, Joseph Parker. Plaintifi" calls James Hall. Alderman, (to witness.) — Take the book, (handing him a Bible). Witness. — I affirm. Defendant. — Are you conscientiously scrupulous about taking an oathl Witness. — I am. Alderman, (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. Alderman. — Are you acquainted with the handwriting of Joseph Parker 1 Witness. — ^Yes. Alderman. — How did you become acquainted with it 1 Witness. — By receiving letters from him, and having a bill of exchange on him, which, after accepting, was paid by him to me. Alderman. — Can you say that from these circumstances you are acquainted with his hand- writing'? Ifitness. — Yes, I can. Defendant. — I submit that inasmuch as the witness has never seen Joseph Parker write, he is i;iCompetent to prove his signature. Alderman, (to defendant.) — You may cross-examine the witness farther as to how he be- came acquainted with Parker's handwriting. Defendant, (to witness.)— How do you know that the letters you received from Parker, really came from him t Witness. — I received them in the course of correspondence with him. 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. Defendant.— Where are these letters ? Witness.— Some of them, I suppose, are lost or mis- laid ; others are among my papers at my store. Defendant. — At wha,t time did you receive the letters'! Witness. — I received them during several months, about a year to eighteen months ago. Defendant. — You spoke of a bill of exchange. Who were the parties to that bill, and what was the amount of it 1 Witness.— It was drawn by John Neal, on Parker, in my favour, pay- able, I think, at ninety days, for something over if300. I enclosed it in a letter to Parker, JUSTICES OF THE PEACE, OR ALDERMEN. 315 „|(^p then resided in New- York, for his acceptance. He I'etunied it with an answerin afew days, having the acceptance and his signature written on it. , . MefendoMt. — .Did you ever see Parker write ! Witness. — No. Defendant, (to alderman.) — I submit that, never having seen Parker write, the witness is incompetent to prove his handwriting. MdermoM. — ^In order to become aoquaintfed wilh handwriting, it is not essential to have seen the party write, if the witness^ has had other sufficient means of knowing it. This wit- ness appears to have had sufficient means of becoming acquainted with the handwriting of Parker, though he never saw him writq. I consider him, therefore, a competent witness. ' Alderman, (to witness.) — Look at the name on the back of the note, and say if you know l-whose signature it is. Witness, (after examining the name.) — I believe that to be the signa- ture of Joseph Parker. Alderman, (to defendant.) — ^Do you wish to cross-examine the witness farthert Defend- ant. — No. Alderman, (to defendant.) — Have yon any witnesses ? Defendant. — ^No. Alderman. — Do you wish to say any thing by way of defence 1 Defendant. — It appears to be more than six years since the note fell due, and the claim is barred by the statute of limitation. Alderman. — 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 plaintiflF.) — Have you a bill of your claim V Plaintiff. — ^Yes, (handing in a bill,) of which this is a copy : 1837. Wm. Jack to James Thompson, Dr. Sept. 15. To amount of his promissory note, due this day, and protested for non- payment, #73 27 Sept. 16. Interest for six years, say .-. ....-- 25 28 Cost of protest, ----------- I 38 $99 ]93 Alderman enters judgment for plaintiff for ninety-nine dollars and f'trV Plaintiff.-^'Whexi can I have execution 1 Alderman. — Immediately, if you wish ; but if ah 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 execution. Plaintiff then pays the alderman the costs of suit, and the parties retire. At the expiration of 20 days after judgment, plaintiff Calls on the alderman and desires that execution may issue. The alderman 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 exe- cution. [For a copy see the head " Execotioit."] The execution is put into the hands of a con^stable, who proceeds forthwith to the house of the defendant. No. 30 Eighth street, and informs him he has an execution against him at the suit of James Thon^son, for $101.25, and requests it may, be paid. Defendant says he has no money, and cannot pay the amount, iflkkconstable then makes a levy on so much ' of the goods or furniture of defendant's as wjj^Bbis opinion, produce, at moderate anction prices, fully the amount called for by his execmWa. 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 ail reasonable proportion to the amount of the claim. The constable having ma'de his levy, should note on the back of the execution the time when he makes it, and endorse 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 kepi in order that they may be sold, but it is customary to leave the goods on the premises, 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 ah advertisement in the following form, viz.: constable's sale. To be sold, at Public Vendue, on Monday the 20th day of October, 1844, at 10 o'clock in the forenoon, at the house of Ibhp. Bob, No. 10 N. Sixth street, ten mahogany chairs, two ann-chairSj a mahogany bureau, and an eight-day clock. Seized and taken in execution, as the property of Mark Lee, and to be sold by MASON NAYLEE, Constable. Philadelphia, October 13, 1844. Three of these advertisements at least, s,hould be put up at the most public places of the .iistrict, and the sale sliould 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 mada at least six days before; the ^ale. The terms of sale should be cash on delivery of the, goods. Should the proceeds of sale exceed the amount of the judgment, interest, cost , jmd expenses, the overplus should be. promptly handed over by the constable to the defend 316 JUSTICES OF THE PEACE, OR ALDERMEN. ant. 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. The 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 plaintiff'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, 1843. (Signed,) James Thompsok. 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. Aldennan, John Jones, Fhederick Hake, to the use of CaAttiES Heifbick,'^ James O'Conneie. j September 18, 1844. Summons issued in the above case. Eeturnable 24th September, 1844, at ii 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. 746 Cedar street, belonging to Hake, and occupied by Patrick Ward; that Ward was in arrear g38, 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 endorsement on the back of the writ, which shows that the service was made on the 18th Sep' tember, more than four days before the return ; this is conclusive : — if the constable has made a false return, defendant has his remedy against him. Alderman. — 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 piaking the return, I found that the copy I then left was not a true copy, and this morn- ing I served the defendant with a true copy. Alderman. — 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. Alderman. — Which is, that you served tl^^ummons on defendant on the 24th September, 1844, by leaving a. true copy thereofTi^J^Bvelling-house with one of the family 1 Con- ■ stable, — Yes. "^^^^ Alderman ea^Kses the amendment on the back of the writ, and swears constable to the truth theiHi^ 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. Alderman. — The writ is quashed. Plaintiff's attorney, the costs being paid, orders a new summons as before. Frebehick Hake, to the use of Chabies HelfricKj'J "■ > Alderman, John Jones. James O'Consteli. j September 24, 1844. Summons issued in the above case. Returnable September 30th, 1844, at 4 o'clock, P. M., when plaintiff and defendant appeared with their attorneys. Defendant in person asked the alderman to file a plea in abatement in the case, which was done, and a note thereof made on the docket, viz, " September 30, defendant, in person, files a plea in abatement that defendant's name is James McConnell, and not James O'Connell, and verifies it on oath." This plea of misnomer as filed was in the following form, viz.: James McConneie, sued by the ~\ name of James O'Cojtnbll, -or t ,. t i . , „,s I Before John Jones, Alderman of the 3d ward, Southwark, jREDEnicK Hak,;, to the use of f '° ^^^ ^"""'^ of Philadelphia. ClIAHLES HelFIIIOK.. J " 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 JUSTICES OF THE PEACE, OR ALDERMEN. 317 McConnell halh always hitherto been called and known, without this that he, the said James MoConnell, 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 hie, the said James McCon- nell, 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 Southwark, in the county of Philadelphia, the defendant in this cause, maketh oath and saith, that the plea hereunto annexed is true in substance and matter of fact. Jahes McCohhei.i. Sworn and subscribed before me, the 30th September, 1843. Johs Jokes, Alderman. [JfoTE. — 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 alderman, at the time of putting it in. Such pleas must be pleaded before the alderman 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. Smce the passage of the act of 16th April, 1846, a plea of misnomer, in abatement, will not avail the defendant; the court [or justice] being thereby authorized to amend the record, by inserting the party's true name. See title "Abate- maa" ante, p. 72.] Plaintiff's attorney asks the alderman to enter a replication to saiJ plea of misnomer, and note the same on his docket, which is done thus : "Sept. 30, 1843, 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." Alderman, (to defendant) — Call your witnesses to prove that your name is James McCon- nell. Defendants attorney calls John Smith, who is sworn by the alderman. Defendants 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. Defendants attorney. — By what name is he generally knownl Witness. — By the name of James McConnell. Cross-examined by plaintiff's attorney. — Do you know by what name he is generally known 1 Witmss. — Yes ; I have been well acquainted with him, and those who know him, for ten years. ■Plaintiff's attorney. — Do you not know that he is sometimes called James O'Connell, as well as James McConnell 1 Witness. — No ; I never heard him cstlled by any other name than James McConnell. Alderman, (to plaintiff's attorney.) — Have you any more questions to ask the witness T Plaintiff's attorney. — No. Afdermam. — ^Have you any witness to examine as to defendant's name? Plaintiff's attor- ney. — ^Yes ; James Todd. James "Todd being sworn : Plaintiff's attorney. — Do you know defendant? Witness. — ^I know him to see him, but am not acquainted with him. ^^^ Plaintiff's attorney. -.-By what name is he ca^^^Jf'itBess. — James McConnell ; but I have heard him called by the name of James O'ComWi^ Cross-examined by defendant's attorney. — How often have you heard him called by the name of O'Connell 1 Witness. — Once or twice. * Defendant's attorney. — Who called him so ? Witness. — Joseph Horn. Defendant's attorney. — What did he say? Witness. — He said that there was a man living arNo. 79, Queen street, called O'Connell, or McConnell, who had voted the democratic ticket at the last election. Defendants attorney. — Did he say he was well acquainted with him 1 Witness. — ^No. Defendant's attorney. — Who else did you hear call defendant by the name of O'Connell ? Witness. — I do not remember any one else. Alderman, (to plaintiff's. aftomey.)—HavS you any more witnesses on this point? Plain- tiff's attorney. — ^No. ■ Aldeiman. — ^The writ is quashed. Plaintiff's attorney desires a new summons to issue against James McConnell. Fbedehick Hake, to the use of Charles HeLprick,') V. ^ Alderman, Joiia. ioms. James McCoirirELL. j Oct. 1, 1844. Summons issued, returnable Oct. 6, 1844, 4 o'ciock, P. M. Oct. 6, " Parties appear by their attorneys. Plaintiff's attorney states the case, as in the first suit against James O'Connell. • Offers in evidence the deed of the house and lot, No. 79 Queen street, Southwark. It was dated 24th August, 1841, by James Jackson and Maria his wife, to Frederick Hake. Acknow- ledged before Alderman Longhead, and recorded in the office for recording deeds^ &c. &c. Defendant's attorney examines the deed, and makes no objection. The deed is given in evidence, and the description of the property read, together with the date and names of parties. 318 JUSTICES OF THE PEACE, OR ALDERMEN. Plaintiff's attorney next offers in evidence a certain assignment, whereof this is a copy, viz. j For and in consideration of ten dollars, to me in hand paid by Charles Helfrick, beiore and at the time of the execution hereof, I 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 doUars, or (hereabout, 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 afore- said, or thereabout. Witness my hand and seal, this 10th July, 1843. (Signed,) Fhed'k Hake, [beai.] Signed, sealed, and delivered, in the presence of us, James Jacesoit, Wm. Dodd. Plaintiff's 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 f Witness. — Yes. Plaintiff's attorney. — Were you present at the execution of that instrument 1 Witness. — Yes. I saw Fred. Hake sign his name to it. Plaintiff's attorney. — Who were present besides Hake and you I Witness. — Wm. Dodd, who witnessed the execution, and Charles Helfrick. Plaintiff's attorney^— WhaX became of the paper after its execution ? Witness. — Hake gavfe it to Helirick. Cross-examined by defendant's attorney. — What else took place at the execution? Wit- ness. — I do not recollect any thing 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 to examine Frederick Hake as a witness in the case. Defendant's attorney objects, on the ground of interest in the witness. Hake is interested in the result of the suit, for if Helfrick does not recover in it, he may recover back from Hake the amount of money paid for the claim, viz., ten dollars, there being an implied warranty in law to that effect, arising out of the assignment. This point has been decided in the Supreme Court of the State. Defendant's attorney reads the syllabus of the case. Plaintiff's attorney admits the correctness of the law, as staled by defendant's attorney, and says that, if insisted on, Helfrick is ready to release Hake from all liability on account of any, such implied warranty. Alderman. — It had better be done ; otherwise. Hake is not a competent witness. Plaintiff's attorney draws up a release, which is executed by Helfrick and delivered to Hake. [Note. — The case of Steel v. The Phoenix Insurance Company, 3 Binn. 306, upon which tliis practice is founded, after having been frequej^JK commented on and disapproved of by the Su- preme Court, was fori^ally overruled in M'ci^^n v. Mahon, 1 Barr, 364, by which the law was settled, that no assignment of a claim, byfH^FI plaintiff, although made before suit brought, hmia ^^dc, and for a valuable consideration, will render him a competent witness to sustain the claim. In Patterson ». Reed, 1 W. Sf S. 147, Judge Kennedy says, the practice " is not only opening a door to fraud, but holding out a strong temptation to commit perjury ; and such as the weakness or depravity of human nature may be unable or unwilling to resist." And so also, in Cochran ». M'Teague, % W. Sf S. 27.4, Sergeant, J., remarks, that " it is not to be expected that such a party to the record should be an indifferent witness, though he has assigned his claim, if he is still under an obligation to the assignee to stand ready as a witness lor him, when necessary to help out a doubtful case before the jury." And finally, in M'Clelland v. Malion, 1 JBarr, 365, the Supreme Court say that " the time is come when the doctrine in Steel v. The Phoenix Insu- rance Company must be exploded altogether. The essential interests of justice demand that the decision in that case be no longer a precedent for any thing whatever. It is immaterial, tliere- fore, that the plaintiff transferred the cause of action in payment of a debt, and without respon- sibility for the event : for he was not the less incompetent, for it, to tsstify in support of it"] Plaintiff's attorney then offers Frederick Hake as a witness. Frederick Hake alfirmed. Plaintiff's attorney. — State what conversation or agreement you had with McConnell, the defendant, as to the payment of rent that was to become due by Patrick Ward. Witness. — Defendant occupied my house No. 79 Queen Street, for a year and a half, when he left it. Hefore leaving, I called on him and found that Patrick Ward occupied one of the rooms. I 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 2d 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 I let Ward remain in the room. He staid there for 12 months and only paid me §22 of rent during that time, and Ihere is |i38 now in arrear. Cross-examined by defendant's attorney. — Did defendant say any thing else to you on the Subject at ihat, or any other, time ? Witness. — Not that I can recollect. JUSTICES OF THE PEACE, OR ALDERMEN. 319 Defendant's attorney What reply did you make to McConnell when he said he would go Ward's security 1 Witness.— i don't know that I made any reply. DtfendanCs atfor«ey.f-Did you ever speak to McConnell afterwards on the subject 1 Wit- ness. — Yes, before bringing suit. I asked him to pay the arrears due by Ward. Pefendant's attorney. — What reply did he make 1 Witness. — ^That he would not pay a cent — that he never guarantied the payment of rent. . Defendant's attomey.-^-Tiien I understand you to say, that until after the rent fell into arrear, the amount of which yoH now claim, you never told or notified defendant that you accepted him as security for Ward. Witness^— No, but I thought that letting Ward remain in the room amounted to the same thing. JMerman, (to plaintiff's attorney.) — Have you any other witness 1 Plaintiff's attorney. — No, I consider Hake's testimony sufficient to make out the case for plaintiff. Defendant's ottor«ey contends that the testimony made out no case against 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 guaranty — a mere offer to guaranty is not binding unless duly accepted. Citing Adams v. Jones, 12 Pet. iJcp. 207;. Lee D.Dick, 10 Pef. 483. Chitty on Chntr. 500, &c. 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 plaintiff; that a bare offer to guaranty without any express assent or notice had been held in several cases sufficient to charge the guarantor. Citing Caton v. Shaw, 2 Har. Sf GUI, 13 ; Norton v. Eastman, 4 Greenl. R. 521 ; Tuckerman ». French, 7 Greeml. 115; Seaver ». Bradley, 6 Greenl. 60 ; Train v. Jones, 1 1 V«rm. Rep. 444. jllderman. — ^I will deliver my opinion and give judgment in this case on'';the 8th inst. at 4; o'clock, P. M. October 8, 1843, parties present. Alderman. — ^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 guaranty. Judgment is therefore entered for the defendant. XII. Proceedings in the Office of a Justice of the Peace, or AlderMakt, IN A Criminal Case. ThB C0MM0irWEAI.TH OP PEirKSTlVAWIA,'^ V. V. ■ Jawces C jib. J Nov. 14, 1844, 3 o'clock, P. M. George Jones complains to thealderman, that James Crib had assaulted and beat him, and asks that a warrant may issue to have him apprehended. jildermam. — Yon must make your complaint under oath, or I cannot issue a warrant. The Constitution provides that no criminal or search-warrant shall issue, unless the application is supported " by oath or affirmation." Jones. — I am ready to do so. Alderman, (administering an oath.) — You do.' swear that you will tritei answers make to such questions as I shall ask you. Answer.— i;^A<^. Alderman. — ^Did James Crib commit on you an' assault and battery 1 Jones. — He did ; in the presence of Patrick Ward and John Smith. Alderman. — You had better, if convenient, have one or both of them here at the hearing. Jones. — I do not think they will come without a subpoena, Atdermam. — ^I should not know at what time to require their attendance, as I do not know at what time the constable may arrest him. If, however, their testimony shall be found ne- cessary, the defendant may be held to bail, and a time fixed for another hearing. Then sub- poenas may issue, and you can have ypur witnesses present. Where will the constable find James Crib 1 Constable. — I know Crib. I think I can soon find him. The alderman issues the warrant, and delivers it to the constable, who says : I. expect tc have him here at 4 o'clock this afternoon. Same day, alderman's office, 4 o'clock, P. M. Constable. — I have here Ae body of James Crib, as I am commanded iii this warrant. If the alderman is at leisurelo hear the case, the complainant is here. Alderman. — ^I am ready. You, George Jones, do swear that the evidence you will give shall be the truth, the whole truth, and nothing but the truth. State your complaint. Jonesi—l was going down Eighth street, above Market, this morning, when James Crib, this ■ man, ran across the street, from John Grog's tavern. He appeared intoxicated, andrushing up to me, with his fist doubled, swore that if I did not cryout "Hurrah for the Mayor!" he would lick me. I said I would not cry out any such thing. He then struck me on thd faCe with his fist, and knocked me down. When I got up, he made at me to strike me again,'bu| ' I caught hold of him, and hfeld him until some men came and separated us. AlderrnaM, (to Crib.) — You may ask him any questions yon think proper. , Crib. — At what hour was it that you say you saw me this morning! Jtms. — Abotit ll o'clock. Crib. — Who was with me 1 Jones. — No one. . 320. JUSTICES OF THE PEACE, OR ALDERMEN. Crib. — ^Was any body with you 1 Jones. — No. Crii.— Where were you going 1 Jones.— To my shop in Decatur street. Crift.— Did you not caU out to me, from the other side of the street, that we had been beal at the election 1 Jones.— Yes,, I did. y.,, r at » .u Cri6.— Did not you come across the street towards me, shaking your fist ^ Jones,— J\ot till you first left your side of the street, and came toward me, threatening me. Crii.— Did you not give me the first blow 1 Jones^No ; you struck me first, as I can prove by witnesses. . Crib. — What witnesses t Jbwes.- Patrick Ward and John Smith. Crib.— I ask that these witnesses be produced and examined, before farther proceedings. Jones. — I have no objection. Jllderman^—l adjourn this case until to-morrow morning, at 9 o clock. James Cnb, you must find bail, in $100, for your appearance at that hour, at this office ; and that, in the mean time, you will keep the peace. The complainant is held in $50, to appear. Crib. — Amos Carroll would bail me, if he was here. ^ r. x. a Alderman, addressing the coiistable, says : Here is a commitment for James Cnb ; and they both leave the office. Jones. — I want a subpoena for Ward and Smith. Mdermcm makes out a subpoena, returnable Nov. 15, 9 o'clock, A. M. Jones. Will it do for me to serve the subpcena myself 1 Jldertrum. — Yes ; you have a right to serve the subpoena yourself. The constable. Crib, and Carroll, return to the office. Crib. — I ofier Amos Carroll as bail for my appearance to-morrow. Mdermcm, (administers an oath to Carroll to make true answers to such questions as shall be asked him.)— Are you a householder 1 Carroll. — Yes ; I keep house No. 75, North Se- venth street. AUermcm. — Are you worth $100, after the payment of all your debts and responsibilities ? Carroll. — I am. . ./Merman notes the recognisance on his docket, which was in the common form. Nov. 15, 1844, 9 o'clock, A. M. Present, Crib, Patrick Ward, John Smith, George Jones. Alderman, (to Jones.) — Are your witnesses here ? Janes. — ^Yes. Patrick Ward. Alderman, (administers oath to Ward.) — State what you saw of the struggle between Jones and Crib. Ward states, in substance, that he saw Crib running hastily across the street, towards ' Jones, who was calling out something to him ; that he saw Crib instantly strike Jones with his fist, on the face, and Jones fell. After Jones got up there was a stiniggle, and they clenched each other. Some persons came up, and we separated them. Crib, (cross-examines.) — Can you swear that I struck the first blow ? Ward, — The first and Only blow I saw struck, was by you. John Smith sworn. His testimony was much the same as Ward's. Alderman. — Crib, I must bind you over, in $200, to answer, at the next court of Quarter Sessions for the county of Philadelphia, on a charge of assault and battery. Have yoii any bail t Crii.— No. Alderman, — Then I must commit you. Makes out commitment. Crib, — ^I suppose Carroll would bail me. He is outside the door. Alderman. — Get him here. You ought to have mentioned that before the commitment was made out, and saved yourself the cost of the commitment. Carroll having justified, in $200, his recognisance, together with that of Cribs, is taken by the alderman. The witnesses are all bound over, in $50 each, to appear and testify. Alderman's office, November 15, 1844. Enter James Crib, (to the alderman.) — ^In this affair I think I was too hasty, and should be willing to settle the matter with Jones. He is a good-natured fellow ; everybody says he is never quarrellons except he has been drinking. Alderman. — In a matter of this kind I have authority to settle it, provided such is the desire of both complainant and defendant. Take a friend with you and call on Jones and talk the matter over, and should you agree on terms of settlement, I shal^Jie pleased to discharge it from my docket. Inasmuch as you think you have been hasty in the matter, I think you should pay part of the costs. .But you may settle that as you and he shall agree. After a lapse of some days. Crib and Jones come to the alderman, and say that they have agreed to settle the matter, that they have divided the costs, and desire the complaint to be iismissed. The alderman then makes the following entry on his docket which is signed by both, viz. : WE, the complainant and defendant in the above case having agreed to settle the same, hereby mutually request that the complaint be dismissed and all proceedings be stayed. Gkobox Joites, James Crib. Dismissed accordingly, November 18, 1844. JUSTICES OF THE PEACE, OB ALDERMEN. 321 XIII. Acts of Assembly relating to the Civil Jurisdiction and Duties op Aldermen and Justices of the Peace. [The law of March 30, 1810, which immediately follows this note, is commonly called the hvmtred dollar law. It is regarded as the civil code of the justices of the peace. To it, there- fore, and to the many notes which it has been felt a duty to subjoin, the serious attention of the magistracy of the state is, in a respectful, yet earnest manner, invited. A justice of the peace whose mind is familiar with the principles and provisions of the #100 law, and the judicial decisions under it, is qualified to discharge most of the civil duties which may be imposed upon him. Much of the practice and many of the provisions of this act have been annulled by the passage of the act of July 13, 1843, to abolish imprisonment &r debt, &.c. The portions so repealed or supplied have been omitted in this edition ; or where it was not possible to do so, from their connection with the context of the act, have been printed in italics.] Act of March 20, 1810. Purd. 684. Dunl. 266. Of the Jurisdiction of the Justices of the Peace. 1. Sect. I. The justices of the peace of the several counties of this common- wealth shall have jurisdiction (3) of all causes of action arising from contract, . (3) "Shall have jurisdiction." The general jurisdiction given to the justices of the peace, , in this section, will be found laid down more in detail, and defined with more strictness, in . the judicial decisions published in another part of this volume, principally under the head "jjirisdiction." "The jurisdiction of justices in rim/ cases," says Judge King, "is derived altogether from statutes [Acts of Assembly] ; and when the cause of action is not embraced' in any of these, a justice cannot interfere." " A limited authority," says Shippen, C. J., in 1 Binn. 105, "iuch as is gimen to justices nf the peace, must be strictly pursued. They cannot in-- terfere, officially, in a civil controversy, without pursuing the steps pointed out by the Act." The following remarks may not be unacceptable, as giving some general idea of what is to be understood by contracts "either express or implied." 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 performances. All contracts are to be certain, perfect, and complete. ■ A contract made and entered into upon good consideration, may, for good consideration, be dissolved. r "A promise," says Blackstone, "is in the nature of a verbal contract, and wants nothinf but the solemnity of writing and sealing to make it absolutely the same. If, therefore, it bt to do any explicit act, it is an express contract, as much as any covenant, and the breach of it is an equal injury." ,E3ipress 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 purchaser 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 i further, 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 answerable for such delivery at the time and place and in the condition agreed upon. But if the purchaser shall . ' undertake to provide a conveyance, or shall direct that the goods be sent by a particular carrier or a certain line of stages, if the seller sends the gogd^ 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 seller, 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 . occUpiedi in an action for use and occupation. This, however, is an implied contract. " Implied contracts," says the same author, " are such as reason 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-perfprmance.". For example, on such presumption suits are brought to recover back money paid in mis- - take; or through '(2ecett; or by extortion; or impotUion; or to recover money paid in consequence : of an erroneous judgment. If a person employ another to do any work or service, the law implies, or presumes, thiti the employer undertook to pay the person he employed a reasonable compensation,. such. aa» V 822 JUSTICES OF THE PEACE, OR ALDERMEN. either expressed or implied, in all cases where the sum demanded is not above one hundred dollars: except (4) in cases of real contract, where the title to^^ds^^o' tenements may come in question, or action upon promise of carnage. 4 iStnn. 1/U. B S.SfR. 343. 17 Ibid. 369. 3 Rawle, 325. 3 Pern. Rep. 388. Process the justice may issue-to whom to be directed-how-to be seryed-constable authorized to take bail— in what form to be taken, and how to be acted upon. 2. Sect. II. The said justices are hereby respectively empowered and required, upon complaint being made (5) to any one of them touching any such demand, as aforesaid, to issue a summons, if the party complained of be a freeholder; if not, either a summons, or a warrant of arrest, (6) directed to the constable (7) of the township, ward, or district where the defendant usually resides, or can be found, or to the next constable most convenient to the defendant; if a summons, com- manding him to cause the said defendant to appear before the said justice, on a cer- tain day therein to be expressed, (8) not more than eight, nor less than five days after the date of the summons; and the service on the defendant shall be by pro- . ducing the original summons to, and informing him of the contents thereof, or .leaving a copy of it at his dwelling-house, in t he presence of one or more of his , is usually paid for such work or services in the vicinity where the work was done, or the services rendered. The law also, with equal reason and justice, presumes the person em- 1 ployed 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 ■ neighbourhood for such work and services. The law raises a similar implication where a person buys goods from another without > agreeing upon the price to be paid ; and in an infinite variety of other cases the same pre- sumption is assumed ; as on promissory notes, orders, due-bills ; also to recover back money i paid to one acting under a void authority ; money paid, laid out, and expended to the use of . another, or at his request ; as for money had and received by the defendant to the use of the plaintiff; or for goods sold and delivered; or for work and labour done; or for neglect of iduty 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 who injures a horse in shoeing him, or a tailor, milliner, ' shoemaker ; or other mechanic who does the work he had imdertaken to do in an unskilful or unworkmanlike manner. In these, and in such Kke 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 per- form the duty, and on failure the party injured has a right to redress. There is also an ■ PXtensive class of contracts, implied, by reason and construction of law, which arises from the presumption that every one who undertakes any office, employment, trust, or duty, con- tracts with those who employ him, or intrust him to perform its duties, with integri^, dili- gence, and skill. If, from a want of any of these qualities injury accrues to individuals, they have their remedy by legal proceedings. (4) "Except." Beside the cases which the words of the law exempt from the jurisdiction of justices of the peace, and those which judicial decisions have declared not to be included in it, there are certain official stations, as Senators and Representatives, which, for a time, exempt the person who fill such stations from the service of civil process. Thenre are also certain civil duties which individuals are bound by law to perform, or to be in readiness to perform ; as militia men, jurors, witnesses, parties, &c. &c., which, during their existence, ■ exempt the individuals thus subjected from the service of civil process. The 18th section of the 1st article of the Constitution of Pennsylvania, declares that the Senators and Rep- resentatives of the State, " shall, in all cases, except treason, felony, and breach of surety 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." (5) " Upon complaint being made." A complaint must he made to the justice, by some person in his own case, or as the attorney or agent of another, before he is authorized to issue process. (6) A justice, since the passage of the act of 1842, can only issue a tearrant of arrest m cases of trespass or trover, for the recovery of money collected by a public officer, or for official mis- conduct. (7) " Directed to the constable." The magistrate cannot legally direct his civil process to any -other person or description of persons, than those, by law, specially authorized to serve them. A constable may, but a justice may not, depute another to serve a ctoiZ warrant at the request and risk of the plaintiiF. There is no such authority vested in the justice. (8) The summons is to be returnable "on a certain day therein to be expressed." The form and manner of service, and tha constable's return of this process, may be found ftilly set forth under the title " Summons." " If a warrant shall issue," it becomes the duty of the constable, or his deputy, forthwith, on the arrest of the defendant, to take him befiire the justice, unless he shall give bail, in the form set forth in the second set:tion of the act now under consideration. JUSTICES OF THE PEACE, OR ALDERMEN. 323 family or neighbours, at least four days before the time of hearing; (9) lut if on d warrant of arrest, forthwith on the service of the same : Provided, nevertheless^ that ill all cases where a warrant or capias is issued against the person of a debtor, it shall and may be lawful for the proper constable of the township, ward, or district, to take bail for the appearance of the defendant before the justice from whom said warrant or capias may have been issued, in the following words : " We, A. B. and O. D., are held and firmly bound unto E. F., constable of , or order, in the sum of -, on condition that the said A. B. shall be and appear before G. H., Esq., ju - tice of the peace in the said township of — — , on the day of , to answer in a plea . Witness our hands, the day of ." And if on the return of the said warrant or capias, the defendant shall not appear and enter bail before the justice in the nature of special bail, the constable may assign the obliga- tion to the plaintiff, if he will accept the same, which obligation may be sued in the name of the plaintiff, as assignee of the said constable ; but if the bail for the ap- pearance so taken by the constable shall be insufficient, the constable shall be liable therefor, as^ sheriffs now are, to the plaintiff or plaintiffs named in the warrant or capias, notwithstanding such assignment ; but if the defendant shall appear and enter special bail, the justice may proceed to a final determination of the suit, according to law, and after judgment, such bail shall be proceeded against by scire facias, and shall be liable, in the same manner as special bail now is liable, in cases in the courts of Common Pleas, and may surrender the principal to the jail of the proper county, within ten days after the service of the scire facias, in discharge of the bail ; never- theless, the bail to the constable may enter sufficient special bail to the suit, or cause it to be entered at the return of the warrant or capias in discharge of the obligation, where the defendant may neglect or refuse to appear, in which case the justice may proceed in the same manner as if the defendant had appeared. T S. 6f R. 352. 5 Bimi. 29. 5 S. Sf R. 399. 13 S. Sf R. 336. When the Parties appear — may choose Referees — their Pay — Penalty on refusing 'o serve. 8. Sect. III. If the parties appear before the justice, either in person or by agents, the justice (10) shall proceed to hear their proofs and allegations, (11) and if the demand (9) . If the defendant does not appear, and thereby waive any defect in the service of the sum-- mons, it is essential that the constable's return shauld substantially follow the- words of the. act, or the proceedings -will be reversed on certiorari, although sued, out more than twenty days after the judgment is rendered. In such case, the defendant is not in court,.and all the subsequent proceedings are erroneous. A return to a summons, of '^personally served," or " served a copy on defendant," is insufficient, where the defendant does not appear. So a return of '' left h copy at defendants loardingJunise," is insufficient; and so, also, is a return of copy served on defendant." Com. Pleas, Phila., Nov. 14, 1848, per King, President. MS. Unless process be served before the return-day, proceedings before a justice are coram non judice ; and if the defendant subse- quently appear and insist on being heard, and judgment be. given for him by default, it is but a judgment of nonsuit. 8 Barr, 410. (10) " If the parties appear before the justice." It is clear from the phraseology of the law, " the justice" before whom the parties are to appear, is the justice who issues the process for their appearance. The issuing of the process, and its service, vest a right in the magistrate who issues it to proceed in the suit, of which he cannot be divested by another whose authority is only equal to his own. (11) The "justice shall proceed to hear their proofs and allegations." Their " proofs," that is, their evidence, whether written or oral, will be received in the same manner, subject to the like exceptions, and under the usual obligations in which it would be received in the court of Common Pleas. Their "allegations," that is, the statements of the parties, will be heard by the justice, without any oath or affirmation being administered to tliem. If, indeed, any of the parties shall be offered to prove original entries, it then becomes the duty of the justice to qualify them to make true answers to such questions as shall be asked, them touching their original entries. In the examination of a party thus qualified, he should be kept as close as possible to the facts which, by law, he is permitted to prove, and not allowed to weave other facts or assertions into his testimony. The justice will find it usefiil to permit the parties to make tlieir allegations, and lo talk of the business before him with all reasonable latitude. In the interchange of question and answer, statement aiid counter-statement, admissions and denials of the parties, ho will' often have much light shed upon the matters on which he has to give judgment. The appeal allowed to either of the parties to' the court of Common Pleas, makes it, in an especial manner, the duty of the justice to guard against the admission of any evidence, on tht trial before him, which evidence would be rejected by the court to which the appeal lies. A general knowledge of the law of evidence, o£ what is right to admit and what to reject, seems to be indispensably requisite to a faithful and enlightened discharge of the duties of a justice of 324 JUSTICES OF THE PEACE, OR ALDERMEN. shall not exceed five dollars and thirty-three cents, shall give judgment as to right and justice may belong, which judgpnent shall be final; (12) but if the demand or sum in controversy shall be more than that sum, and shall not exceed one hundred dollars, and either party shall refuse to submit the determination of the cause to the justice, he shall, in that case, request Ihem to choose 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 transmit 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 re- fuse to serve, (13) he shall, for every such neglect and 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. 2 S. Sf R. 463, 389. 5 Binn. 39,- 31. 4 S. Sf R. 190. 3 Ihid. 93. 4 Ibid. 73. 12 S. Sf R. 387, 388, (See No. ,37 and 28.) the peace. The admission of illegal evidence tends to mislead the judgment, and as, on appeal, it would be rejected, and the judgment founded on it set aside, the consequence would be, that the plaintiff would take nothing for the trouble, time, and costs, which he had given to the suit, and instead of justice being administered, injustice and wrong, however unintentional, yet still injustice and wrong, would have been done to the plaintifi; as well as to the defendant, by the very person to whom he had applied, and on whom he had confidently relied that right and jus- tice should be faithfully administered. These truths make it incumbent on every man who on. dcrtakes to discharge the high duties, civil and criminal, which appertain to the office of a justice of the peace, to lose no opportunity to qualify himself to do " equal and exact justice" to all who may come before him, whether' as plaintiffs or defendants, as accusers or accused. It may be well, further to illustrate, and the more clearly to set forth, the evils arising from a want of the required knowledge in these particulars, to suppose a case, and to take it before a justice from whose judgment an appeal is taken solely on tlie ground of his having admitted illegal testimony. ■ A. sues B. On their appearance before the justice, A. demands $100 for money alleged to have been lent by him to B. B. declines to acknowledge the debt, and A. being called upon for his " proofs and allegations," says — "When I lent this §100 to B. there was nobody present, nor do I know that he has ever acknowledged the debt in the presence of a third person; but, within an hour after I lent him the money, I made a regular efntry of it in my day-book, and I am ready to swear to my original entry." This the justice permits, and on this evidence enters judgment against B. B. gives bail for an appeal. When the case is brought before tiie court of Cbinraon Pleas, A. makes the same statement to the judges which he had made to the justice, and is told by thcra that such evidence is inadmissible, inasmuch as, on the score of interest, he could not bo his own witness ; and that it had been repeatedly ruled that an original entry could not be admitted a-s evidence of money lent; that it cpuld .only be received to prove work and labour done, or goods sold and delivered j and that, therefore, he must either submit to a nonsuit or have judgment rendered against him. Wh*re there exists an appellate jurisdiction, it is folly for the court below to govern itself by any other rules of evidence than those whi«h are acknowledged in the court above. (12) "Which judgment shall be final." The sum in controversy not exceeding 15.33. It is not intended by the use of the word " final" to take away the right of taking the proceedings by certiorari before the court of Common Pleas : the time and manner of doing this may be found in the 21st section of this Act, and under the " Writ of Certiorari." (13) "Shall neglect or refuse to serve." By an act passed March 26, 1814, it is enacted that if any rcforee "shall not attend at the time and place fixed for hearing the cause," the parties or " referee or referees present" shall supply the vacancy. Authority is also given to the referees "to. swear or affirm each other," and "to administer oaths or affirmations to witnesses, on the cause before them," and to adjourn themselves to such time and place as they may deem proper. JUSTICES OF THE PEACE, OR ALDERMEN. 325 The justice shall give judgment publicly — bail for an appeal — ^how prosecuted — of the justice's Docket. 4. Sect. IV. If either party or their agents shall refuse to refer, the justice may- proceed to hear and examine their proofs and allegations, and thereupon give judg- ment publicly (14) as to him of right may appear to belong, either party having the right to appeal within tvcenty days after judgment being given, either by the justice alone, or on award of referees, when such award shall exceed the sum of twenty dollars : and 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 the consent. t)f the parties or their agents, to open his judgment and give them another hearing ; but if they will not agree to such re-hearing, the party appellant shall be bound with . surety in the nature of special bail, unless such party appellant be an executor or administrator, (body corporate (15) or politic,) in all or either of which cases the party appellant shall be entitled to the appeal without being bound with surety in the nature of special bail, whether the appellee shall appear or not: * * * (16) and all which proceedings so had, before the justice, shall be entered at large by him in a docket (17) or book tanZ. 660. Sect. I. All acknowledgments or probates of deeds, or other instruments of writ-^- ing, shall be construed to be valid, although certified under the hands only of the- officers before whom such acknowledgments or probates have been made, without a. seal. w 338 JUSTICES OF THE PEACE, OR ALDERMEN. Sect. II. From and after the passage of this act, the aldermen for ^e county of Philadelphia shall have like jurisdiction with the aldermen of the city ot fhuaaei- l.hia, in the acknowledgment of deeds and other instruments of writing. Act of March ?2, 1814. Furd. 693. Dunl. 305. 30. Sect. I. The justices of the peace' of the several counties of this common- wealth, and the aldermen of the city of Philadelphia, shall have jurisdiction of ac- tions of trover and conversion, and of actions of trespass brought for the recovery of damages for injury done or committed on real and personal estate, m all cases, uhere the value of the property claimed, or the damages alleged to have been sus- tained, shall not exceed one hundred dollars. 31. Sect. 11. It shall be the duty of the justice or alderman before whom any suit or action is brought, if the demand does not exceed ten dollars, to proceed to hear -and determine as to him of justice and right shall appear to belong; but if the de- mand in controversy should' exceed that sum, then, on the request of either parly, or his or her agent, three reputable citizens shall be chosen by the parties or their . agents, as referees, or if they cannot agree, or if only one party or his or her agent ■should appear, then the justice or alderman shall ap[)oint the referees, who shall be -sworn or affirmed justly and truly to assess the damages alleged to have been sus- tained, or the value of the property in dispute, which they or a majority of them sliall have power to assess : Provided, that if both parties or their agents shall not .prefer a reference, the justice or alderman shall proceed to hear and determine, and ;if the sum adjudged does not exceed five dollars and thirty-three cents, the same sliall be final and conclusive ; and each referee shall be entitled to receive one dollar ■for every day he shall have attended in each case : Provided, that if the defendant shall, before the trial of the action, make oath or affirmation that the title to lands -.will come in question in the said action, (51) then the justice or alderman shall dis- miss the same ; and in case of such dismissal the costs shall be paid in equal shares 'by the plaintifl'and defendant : Provided always, that if the damages so found by the justice, alderman, or referees, shall not amount to more than one dollar, the plaintiff ■ or plaintiffs shall not recover more costs than damages. (52) 2 Harris, 359. 32. Sect. III. Either party shall have the right of appealing to the court of Com- inon Pleas of the proper county, where the judgment given by the justice or alder- man alone shall exceed five dollars and thirty-three cents, and where judgment given on the award of referees shall exceed twenty dollars. 33. Sect. IV. The process, return thereof, notices, awards, judgments, and ap- peals, and the proceedings of justices, constables, referees, and courts, and every proceeding necessary to carry this act into effect, which is not herein specially pro- vided for, shall be made and done, under and according to the provisions and regu- lations in similar cases contained in the act, entitled "An act to amend and consoli- date with its supplements the act, entitled 'An act for the recovery of debts and de- mands not exceeding one hundred dollars, before a justice of the peace, and for the • election of constables, and for other purposes.' " 34. Sect. V. Nothing in this act contained shall be construed to extend to actions of ejectment, replevin or slander, actions on real contracts for the sale or conveyance «f lands and tenements, actions for damages in personal assault and battery, wound- ing or maiming, or to actions for false imprisonment. 35. Sect. VI. The said justices of the peace and aldermen shall have original ju- risdiction of all cases of rent, not exceeding one hundred dollars, to be recovered as debts of similar amount are recoverable. (53) (51) The affidavit that the title to lands will come in question, must be positive ; it is not suifi- ■cient to swear to the best of the deponent's knowledge and belief. Carpenter v. Koons, Com. ,1'leaa, Phila., September 29th, 1849. MS. Report. (.59) By act of 13th February, 1816, the referees in actions of trespass, under this act, are era- I powered, in addition to their report of the damages, if any, sustained by tlie plaintitF, to decide .»nd report also, whether the plaintiff or the defendant shall pay the costs of such action, or in ■what proportion they shall be paid by the plaintiff or defendant respectively; on which report judgment shall be entered as well fbr the costs as the damages, and execution shall issue as in dlier cases. Purd. 694. Dunl. 3S8. ' (5.')) The proBiBo in the second section applies to cases of rent ; and if, in such case, the defend- JUSTICES OF THE PEACE, OR ALDERMEN. 339 36. Sect VII. The said aldermen and justices shall take cognisance, by amicable Buit, of all causes of action within their jurisdiction, whether such jurisdiction arises from this act or from an act to amend and consolidate, with its 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." dci of March 26, 1814. Purd. 694. Dunl 308. 37. Sect. I. If any referee appointed under the third section of the Act (of March 20, 1810) to which this is a supplement, 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 per- sons 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. (See No. 3.) 38. Sect. II. The said referees shall be sworn or affirmed by an alderman or jus- tice of the peace, or they may swear and 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. (See No. 3.) Mt of March 32, 1817. Purd. 202, 411. Dunl. 334. 39. Sect. IV. In cases of appeal, certiorari, or writ of error, by any corporation, the oath or affirmation required by law shall be made by the president or other- chief officer of the corporation, or in his absence, by tiie cashier, treasurer, or secretary : and when any corporation shall be sued, and shall appeal or take a writ of error, the bail requisite in that case shall be taken ab-wlute for the payment of the debt, interest and costs, on affirmance of the judgment. 40. Sect. VI. In cases in which a corporation shall be a party in any suit, in any court, or before any magistrate, all the proceedings, except as regulated by this act, shall be the sanie as directed by law in other similar cases. ^cbeen elected. Act of March 7, 1840. Purd. 401. Bunl. 897. 80. Sect. I. When a borough forms part of a township or townships, composing together one general election district, and which are entitled by the act to which this is a supplement, to separately elect two justices of the peace, it shall be the duty of the judge and inspectors elected to hold the general and township elections of each year, to provide a separate box, into which they shall put the tickets voted for jus-, tices of the peace for said borough ; and the tickets voted for justices of the peace by the qualified voters of the township, shall have the word "Township" written or printed on the outside; and the tickets voted for justices of the peace by the qualified voters of the borough, shall have the word " Borough" written or printed on the outside; and the said judge- and inspectors shall count the votes so voted for justices of the peace for said borough, and return the same in like manner as is pro- vided for in the election of justices of the peace for townships. Act of June 13, 1840. Purd. 401. Dunl. 923. 81. Sect. I. In all cases where an equal number of legal votes has been or shall hereafter be polled, for two or more candidates for the office of alderman or justice of the peace, in any ward, borough, township, or district, so that the said officers required by law shall not be duly elected, or where any election shall be declared void by the court, it shall be lawful for the qualified voters of such ward, borough, township, or district, to hold another election for the choice of such officer or officers, to fill such vacancy. But before holding the same, it shall be the duty of the constable of the proper ward, borough, township, or district, to give notice in the manner prescribed by law, that on a certain day mentioned in said notice, not less than twenty nor more than thirty days thereafter, an election will be held to fill such vacancy; which election shall be held and conducted in the mode and manner, and by the same officers and persons, as the constables' elections are held and con- ducted ; and at the same place and between the same hours, and be subject to the like inquiry, and judgment of the court of the proper county, as aldermen or justices elected under the provisions of the act to which this is a further supplement : Pro- vided., that when the election of any such officer shall be vacated or set aside, by a decision of the court, the said court shall fix the time of holding such new election, which shall not be less than twenty days thereafter : And provided, that no election held under the provisions of the section hereinafter repealed, upon legal notice given by the proper constable, to fill any vacancy contemplated by said section, shall be declared void, because it was held on a day fixed by the said constable. 83. Sect. II. The commissions issued to aldermen or justices of the peace, elected under the provisions of this act, shall take effect from the same date and time, and continue until the same period as commissions issued under the act of the twenty-first June, one thousand eight hundred and thirty-nine, to which- this is a further supplement, and shall expire at the same time with commissions issued to such officers elected at the time of electing constables. 83. Sect. III. The inspectors, judge, and clerks, required by law to hold town- ship and general elections, shall take and subscribe the several oaths and affirmations (56) It is contended that this clause gives to the aldermen of the incorporated districts the right to issue their process into the city of Philadelphia ; it certainly, in direct terms, invests them with all the jurisdiction vested by law in the aldermen of the city. And the act of 15th April, 1834, {Purd. 210, Drnil. 643,) expressly provides that every city shall be deemed and taken to form part of the county in which it is or may be situate. But this question is now settled by the act of 29th March, 1851. See note 54, ante, p. 341, JUSTICES OF THE PEACE, OR ALDERMEN. 349 required by the nineteenth, twentieth, and twenty-first sections of the act of tlie second day of July, one thousand eight hundred and thirty-nine, entitled " An act relating to the elections of this commonwealth," which oaths or affirmations shall be prepared and administered in the manner prescribed in the eighteenth and twenty- second sections of said act ; and in addition to the power conferred by the eighteenth section of said act, the judge, or either of the inspectors, shall have power to ad- minister the oaths prescribed by said act, to any clerk of a general, special, or town- ship election ; and the ninth section of the act, to which this is a further supplement, shall be, and the same is hereby, repealed. 84. Sect. IV. All contested elections of aldermen or justices of the peace shall be. tried in the courts of Common Pleas, according to the provisions of the act to which this is a further supplement ; and said courts, in the trial of such contests, shall have all the powers conferred by the one hundred and fifty-fifth, one hundred and fifty-sixth, and one hundred and fifty-seventh sections of the act entitled "An act relating to elections of this commonwealth, passed the second day of July, one thousand eight hundred and thirty-nine ;" but no proceeding commenced, and now pending in the courts of Quarter Sessions, shall be dismissed by reason of the passage of this act, but the same shall be pursued to completion, with like power and effect as though it had been commenced in the court of Common Pleas. 85. Sect. V. No state tax shall hereafter be charged on account of recording tlie comrnission, oath, bond, or other paper connected with the election and appointment of aldermen and justices of the peace within this commonwealth. Act of May 27, 1841. Purd. 703. Bunl. 949. 86. Sect. XV. 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 thaii teii miles distant from the place where the death occurred or the body 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. Mt of July 12, 1842. Purd. 585. Bunl. 974. 87. Sect. XXIII. No execution issued on any jjitlgment rendered by any alder- man or justice of the peace, upon any demand arising upon cpntract, express or im- plied, 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 person in whose favour such execution shall issue, or that of some other person, to the satisfaction of the alderman or justice of the peace, eithei; that such judgment was for the recovery of money collected by any public officer, or for official mis- conduct. 88. Sect. XXIV. No capias or warrant of arrest shall issue against any defendant in any case in which, by the provisions of the preceding section, 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 requii;ed as for the issuing of an execution by the provisions of said section. 89. Sect. XXy. Whenever a plaintiff shall reside out of this commonwealth, he iiiay,^'Upou giving bond, with sufficient surety, for the payment of all costs which he may become liable to pay, in the event of his failing to recover judgment against the defendant, have a capias or warrant of arrest, if he shall be entitled to such writ, on making the affidavit required in the twenty-third section of this act, or a sum- mons, which may be made 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, and if the same shall be returned personally served, 350 JUSTICES OF THE PEACE, OR ALDERMEN. the justice or alderman issuing the same may proceed to hear and determine the c&an in the manner heretofore allowed by law. 90. Sect. XXVI. Whenever, by the provisions of the twenty-fourth section of tliis act, no capias can issue, 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. [For the other sections of this act, see title "Attachment," ante p. 115.] ^ct of February 27, 1845. Purd. 704. Dunl. 1033. 91. Sect. III. The justices of the peace of this state shall have jurisdiction in ac- tions of debt, on demands not exceeding one hundred dollars, founded on the judg- ment or judgments of any justice of the peace of any adjoining state, where a similar jurisdiction is given to justices by the laws of such state, founded on the judgment or judgments of justices of the peace, in this state : Provided, that it shall appear by a copy of the record or docket entry of the proceedings had before such justices, certified and authenticated as hereinafter mentioned, that the original cause of action was such as by the laws of this commonwealth would have been within the jurisdic- tion of the justices of the peace thereof. 92. Sect. IV. The plaintiff, or the party in interest in such cases, shall, as evi- dence of his demand, produce on the trial a copy of the record or docket entry of the proceedings had before the justice who tried the original action, (57) with his affidavit thereto annexed, certifying the same to be a true and full copy of the record of the proceedings had before him, and that the judgment remains in force, and has not, to his knowledge, been vacated, annulled, or in any manner satisfied ; and fur- ther, certified by the clerk of the court of Common Pleas, or clerk of the county, where such justice keeps his office, under the hand of such clerk, and seal of the court or county, that the person before whom the proceedings purport to have been had, was at the time an acting justice of the peace of the said county, duly appointed or elected, and qualified according to law : Provided, that the defendant shall have the right to make the same defence to the action upon said judgment, as he was originally entitled to make to the claim or demand upon which it was founded. 93. Sect. V. The copy of the proceedings aforesaid shall be kept by the justicn who shall try the case, as a part of the record, and it shall be a part of the record of the proceedings of such justice. ^ct of March 20, 1845. Purd. 704. Dunl 1035. 94. Sect. I. In lieu of the bail heretofore required by law, in tlie cases hereinafter mentioned, the bail in cases of appeal from the judgments of aldermen and justices of the peace, and from the awards of arbitrators, shall be bail absolute, in double the probable amount of costs accrued and likely to accrue in such cases, with one or more sufKcient sureties, conditioned for the payment of all costs accrued or that may be legally recovered in such cases against the appellants ; (58) and the bail in ail cases where bail is now required for the stay of execution, sliall be bail absolute, with one or more sufficient sureties, in double the amount of the debt or damages. (57) It would be advisable in actions brought under this act, wherever it is practicable, to have some evidence of the identity of the defendant with the person against whom judgment was obtained in the other state. On this subject. Chief Justice Gibson, delivering the opinion of tlie Supremo Court, says—" Identity of name is ordinarily, but mt always, prima facie evidence of personal identity. The authorities on this subject may be consulted in Sewall ». Evans, (4 Ad. Sf EttU, 632,) from which Lord Denman, and the other judges of the Queen's Bench, concluded tliat identity of name is something from which an inference may be drawn, unltss the name were a very common one, or the tramaction remote; and tlie reason given for casting the onus on tlie party who denies is, that disproof can be readily hud, by calling the person, whose identity is contested, into court." 2 Barr, 183. And see 2 W. C. C, JR. 201. 12 Verm. 9 4 Mmr 4.51 5S6. 2 Perm. L. J. 302. " " ' ' (58) The act of 9th April, 1849, {Dunl. 1169,) provides that this section of the act of 1845, shall not be construed to apply to the judgments of aldermen or justices, under the first section of the "«^ entitled "An act relating to landlord and tenant, passed the third day of April 1830 " Purd. JUSTICES OF THE PEACE, OR ALDERMEN. 351 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. 95. Sect. III. The right of appeal from judgments of aldermen and justices of the peace, and from their judgments on awards of referees, is hereby extended to defend- ants, in all cases, wherein by existing laws, the right of appeal is enjoyed by plaii> tiffs. Act of April 15, 1845. Pwrd. 403. Dunl. 1047. 96. Sect. XXI. In all cases where the election of justices of the peace shall be contested, the justices then in commission shall continue to exercise and discharge the duties of their respective offices, until their successofs are duly commissioned and qualified. Act of March 9, 1846. Purd. 706. Bunl. 1059. 97. Sect. I. In all cases of the creation of any new township, borough, or ward, in any city or county of this commonwealth, the commissions of justices of the peace and aldermen, within the respective territories out of which such township, borough, or ward, has been or may be created, shall continue for the proper town- ship, borough, or ward, in which such justices oi aldermen may respectively reside, for the balance of the official term ; and any deficiency in the proper number of al- dermen or justices of the peace within the territories of either of such new divisions, according to the number allowed to each township, borough, or ward, by the act of the 21st day of June, 1839, shall be supplied at the next succeeding election for constables in the said townships, boroughs, and wards. Act of April %\,1%4.Q. Purd. 706. Dunl. 1075. 98. Sect. IV. Every person who has been, is now, or may be a justice of the peace or alderman, and who has removed or shall remove out of the district,' for which he was, is, or may be commissioned, shall upon demand made by any person, deliver or cause to be delivered, his dockets, and all official records connected there- with, 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 a 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. 99. Sect. V. Whenever upon petition and due proof, it shall be made to appear to the court of CoJIimon Pleas of the proper county, that any justice of the peace or alderman of any city or county, who has not been required to give security, has become, or is likely to become insolvent ; or that any surety of any justice or alder- man has removed from the state, or beconie insolvent, or is likely to become insol- vent ; and where upon the petition of any surety of any justice or alderman, and proof as aforesaid, it shall appear such justice or alderman has become, or is likely to become insolvent, such court may require any such justice or alderman to give security, or additional security, or counter security, to indemnify the surety so peti- tioning against loss by reason of his suretyship, as the case may be, in the manner provided by the sixth section of the act, entitled "An act providing for the election of aldermen and justices of the peace," in such sum, and by such time as the court may think necessary and proper. (59) (59) By act of 8th May, 1850, {Pamph. 716,) the application contemplated by this section may be made in vacation to any one or more judges of the court of common pleas, whose action in the promises shall have the same force and effect as though made by the court in session. Bright, Dig. 305. 352 JUSTICES OF THE PEACE, OE ALDERMEN". Mt of April 5, 1849. Bunl. 1156. 100. Sect. VII. In all cases of the breach of any bylaws of any city, borough, town, or corporate body within this commonwealth, subjecting the offender to a penalty or fine therefor, suits for the recovery thereof may be maintained before any justice of the peace or alderman, in like manner as suits for the recovery of debts under the sum of one hundred dollars may now be maintained before them : Provided, the parties shall have the right to appeal as in other cases. Mt of July 11, 1842. Pamph. 321 . 101. Sect. XLIV. It may be lawful for the qualified electors of any township that is or may hereafter be created,, to elect such number of justices of the peace as by law the said township may be entitled to, at such times and places as are already pre- scribed by law. Ml of April 5, 1849. Pamph. 558. 102. Sect. XXXII. Hereafter, when any new township shall be erected in any county of this commonwea,lth, 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. Act of April 16, 1849. DunJ. 1197. 103. Sect. III. Whenever, upon the petition of any surety, and due proof, it shall be made to appear to the court of Common Pleas of the proper county, that any alderman or justice of the peace of any city or county of this commonwealth, by reason of habits, of intemperance, is likely to increase the responsibility of his sureties, such court may require such alderman or justice of the peace to give security to in- demnify the surety so , petitioning against loss by reason of his suretyship, in the manner provided by the sixth section of the act, entitled " An act providing for the election of aldermen and justices of the peace," in sucji sum and by such time as the court may think necessary and proper. Act of March 22, 1850. Pamph. 233. 104. Sect. I. No attachment hereafter issued by any alderman or justice of the peace of this commonwealth, in pursuance of the 17th section of the act, entitled "An act to abolish imprisonment for debt and to punish fraudulent debtors," ap-. proved the 12th day of July, Anno Domini 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 to 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 a period of sixty days after final judgment. Act of April 25, 1850. Pamph. 576. 105. Sect. XLIII, From and after the passage of this act, the office of associate judge and justice of the peace shall be incompatible with- each other. Act of April 30, 1850. Pamph. 640. 106. Sect. I. In 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 proceedings to be supplied, and verified by affidavit ■ where- JUSTICES OF THE PEACE, OR ALDERMEN. 353 upon tlie said alderman or justice shall issue a precept in thp nature of a writ of sum- mons, which shall be served as in other cases, requiring the defendant in such action %r 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 shew cause why the prayer of the petitioner should not be granted j 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 proceedings be supplied ; and shall thereupon enter the same upon his docket, which said entries shall have the same force and effect as if the ori- ginal record had not been lost or destroyed, and either party may have his remedy by appeal or certiorari, as in other cases. Mt of May 8, 1850. Pamph. 716. 107. Sect. IX. The 5th section of the act passed the 21st day of April, 1846, entitled " An act in relation to certain public officers and their sureties," be and the same is hereby altered and amended ; that the application therein contemplated may be made in vacation to any one or more judges of the court of common pleas, wherir [whose] action in the premises shall have the same force and effect as though made by the court in session. ^ct of March 29, 1851. Pamph. 274. ^ 108. Sect. XII. The several aldermen, justices of the peace, and constables,., elected and commissioned, or that may hereafter be elected and commissioned, in the city and county of Philadelphia, shall hereafter severally and respectively have and enjoy all the jurisdiction throughout the said city, county, districts, and townships of s:iid county, as is by law vested in the several justices of the peace in this common- v.'oalth, any law, custom, or usage to the contrary notwithstanding; and so much of any law or laws as is hereby altered or supplied be and the same is hereby repealed. XIV. 1. A justice of the peace cannot enter judgment upon a warrant of attorney. He must proceed by warrant in the nature of a summons or capias. 1 Binn. 105. 2. Trespass has been held to lie against a justice of the peace who issued execu- tion against the body of a person privileged from imprisonment. 2 Johns. Cos. 249. 3. A refusal by a justice of the peace to deliver a copy of his proceedings, on de- mand, is indictable under the act of Assembly. An indictment against a justice of the peace, for refusing a copy of his proceedings, ought to state a previous tender of his fee for that service, and the want of it is fatal. 10 S. Sf R. 373. 4. The only remedy against a magistrate for taking illegal fees is before a justice to recover the penalty of $50, imposed by law. An indictment at common law for extortion does not lie in such a, case. 13 S. ^ R. 496. [See the act against extor- tion, passed 25th March, 1831. Purd. 486. Dunl. 515.] 5. The offence of a justice acting as agent for either party, who sue before him, is indictable. 14 S. 8f R. 158. 6. Where an alderman (or justice) has authority to inquire into an offence, and commit the prisoner, hold him to bail, or discharge him, as circumstances may re- quire, he may take a recognisance for his appearance before him, from time to time, pending the examination. The condition of such a recognisance is not fulfilled by the appearance of the accused, if he abscond during the examination. Q S. S^ R. 427. . 7. A justice may give judgment before the return-day of his process, if the parties voluntarily appear and proceed to the hearing. 5 Binn. 29. 8. A justice may set forth the date of his judgnent j but if the day of appearance • is mentioned, and there is judgment set forth without day, the court will presume that it was rendered on the appearance day. 5 Binn. 29. 9. A justice of the peace has power to supersede an execution issued by him, andl such supersedeas will exonerate the constable from liability. 1 P. R. 61. X 354 JUSTICES OF THE PEACE, ACTIONS AGAINST. . 10. It is not necessary that a justice of peace should enter on his docket the evi- dence on which his judgment is founded. It is not required by any law, and wouic^ increase the costs of suit, for no useful purpose. 5 Binn. 29. 11. A justice of the peace being a judicial officer, must have his court, or plaxje ot administering jastice; and in order to the validity of an amicable judgment upon his docket, the party confessing the same must be before him at his office. I f. Jt. 10. 12. If a judgment be confessed before, and entered by a justice of the peace, tor a sum exceeding one hundred dollars, the merits of it cannot be afterward inquired into by the justice ; he has no further jurisdiction over the subject. 6 VV. d»l. 13. Justices of the peace shall record all fines, &c., for the use of the poor, and deliver a transcript to the constable of the township, &c., and pay over the amount to the overseers, and "annually, if required, exhibit his docket to the inspection of the township auditors." ^c< of 1836. Purd.9&7. Dunl.121. _ _ 14. He shall be fined, if he shall neglect or refuse to perform the dutaes just enu- merated, and sued if he shall not pay over the fines in twenty days. Ibid. 15. In an action against a justice of the peace to recover the penalty for marrying liis 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. 10 W. 82. 16. An alderman or justice of the peace is competent to administer any oath re- ■ (quired to support any collateral or interlocutory step found necessary in a cause in the common law, or orphans' courts. 2 Am. L. J. 224. 17. A justice of the peace may set aside an award of arbitrators, 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. 9 Barr, 106. 3\\^iittn of ttie iieace, Ectfonsi asaitii^t. Act op March 31, 1772. Purd. 681. Dunl. 100. Wberkas, justices of the peace may be discouraged in the execution of their office) 'by vexatious actions ( 1 ) brought against them, for or by reason of small and invol- untary errors in their proceedings : and whereas it is necessary that they should ^e (as far as is consistent with justice, and the safety and liberty of the subjects over whom their authority extends) rendered safe in the execution of the said office and trust : and whereas it is also necessary that the subject should be protected from all wilful and oppressive abuse of the several laws committed to the care and execution of the said justices of the peace : Be it enacted, Sect. I. No writ shall be Sued out against, nor any copy of any process, at the suit of a subject, shall be served on any justice of the peace, for any thing by him done in the execution of his' office, (2) until" notice, in writing, of such intended (1) This act applies to suits before magistrates. 5 S. if R. 209. And therefore a notice is necessary in an action brought before a justice of the peace, to recover the penalty for taking ■ illegal fees. 5 S. ^ iJ. 44, 209. 12 Ibid. 75. 7 Watts, 491. 1 Ash. 60. And for tiie penalty for marrying a minor, without the consent of the parent or guardian. 4 Binn. 20. Z S.Sf ii.295. (2) A justice of the peace is entitled to notice, under this act, whenever the act complained of was done by him, hy mrlue «/ his offke. 4 Binn. 20. Although the justice has acted illegally, yet if he has a general jurisdiction of the subject, and intended to act, or assumes to act, us ii magistrate, he is within the protection of the act. 5 S. if R. 302. Therefore, if a magistrate cause one who was travelling on Sunday, to be arrested on his own view, he is entitled to notice. Jbid. 299. It may be laid down as a general rule, that wherever the officer has acted honestly, though mislahingly ; where he supposed he was in the execution of his duty, although he had ao authority to act ; he is entitled to the protection of the act of Assembly. Ibid. So, in a suit by the administrator of a constable, against a justice, to recover back money alleged to have beeu received by him as a justice of the peace, by fraud and mistake, it was held, that the defendant was entitled to notice. 2 /JojoZe, 208. And where an action was brought against an alderman for issuing an execution upon the transcript of another alderman of the same city, who was then in commission, and acting in his office ; it was held, that he was entitled to notice, under the act of 1772, although his act was void, and wholly without authority ; it being done, nevertheless, by virtue of his office, HvbeH v. Milchell, Dist. Court, Phila., March 19,1849. But if the justice acts JUSTICES OP THE PEACE, ACTIONS AGAINST. 355 writ or process (3) shall have Ibeen delivered to Lim, or left at tibe usual place of his abode, by the party, his attorney or agent, (4) who intends tn sue, or cause the same to be sued out or served, at least thirty days before the suing out or serving the same; in which notice shall be clearly and explicitly contained the cause of ac- tion, (5j which the said party hath or claimeth to have, against such justice of the peace J on the back of which notice shall be endorsed th« name of such attorney or agent, (6) together with the place of his abode, (7) who shall be entitled to the fee of twenty shillings for the preparing and serving such notice, and no more. (8) Sect. II. It shall and may be lawful to and for such justice of the peace, at any time within thirty days after such notice given as aforesaid, to tender amends (9) to merely under colour of his office, and not by virtue of it, he is not entitled to notice under the sta- tute ; as, if he issue a warrant of arrest on a criminal aiccusation, without probable cause, sup- ported by oath or affirmation ; the power to do which is expressly excepted from a'U the powers of the government, by the bill of rights of Pennsylvania. 1 Bald. 602. (3) The notice need not state the kind of writ intended to be issued, whether summons or capias. 4 Binn, 25. Nor the kind of action, whether trespass or case. 6 Binn. 85. 12 S. ^r R- 148. Nor the court in which the action is intended to be brought. Notice, stating that plaintiff would sue in the Common Pleas, is sufficient, although the action be brought in the. district court of the county; both those courts having jurisdiction of the subject-matter. 3 Watts, SIT. But if the notice state the kind of action intended to be brought, and the action afterwards brought is of a different kind from that contained in the notice, the variance will be fatal on the tfial. 7 T. R. 631. 4 Binn, 26. For, if the notice may mislead, or if it be expressed in equivocal terms, it is bad. 1 Br. 65. 7 Watts, 297. So if a circumstance be unnecessarily set out in the notice, — as the date of an act of Assembly, which is misstated, — the plaintiff cannot recover. T W. Sf S. 362. 1 Harris, 9. (4) The plaintiff is not competent to prove the service of the notice. 1 Barr, 403. The wit- niess must identify the notice, and prove the time of service. Ibid. It need not be delivered by the agent or attorney, but may be served by any messenger employed &i that purpose. 13 S, Sj R. 420. (5) It is not necessary that the notice should have all the form and accuracy of a declaration ; a substantial notice of the cause of action is alone required. 12 S. if. R. 148. 7 Watts, 491. A notice to a justice, of an intended suit for the penalty of fifly dollars, for taking illegal fees, need not specify what fees be was entitled to receive. 17 S. Sf R. 75. " The justice was apprized of the sum," said Gibson, C. J., ^'and the occasion on which it is alleged to have Been extorted'; and' this is sufficient to enable him to judge of the extent of the injury, and the propriety of ten- dering amends : all beyond this, lay more in the knowledge of the justice than any one else." Ibid. (6) A notice directed to a justice, signed by the plaintiff, and thus endorsed — " Notice to J. S. Esquire ; Henry Read, living in Poplar Lane, between 3d and 4th Streets," was Iteld to be de- fective, in not stating that Henry Read was the agent of the plaintiff, and in not containing any thing from which it might he inferred that he was his agent, having authority to receive a tender of amends. 5 S. Sf R. 517. Whether it is essential that the name and abode of the plaintiff's attorney or agent shpuld be written on the back of the notice, if it be sufficiently inserted on its fajce, has not been determined. See 3 S. Sf. R. 295. But it should seem that this act is to be strictly construed. T W. Sf S. 363. And, therefore, it is advisable in all cases, that the name and abode should be written on the back of the notice, as the act prescribes. (7) A notice served by the plaintiff himself, and endorsed by an attorney of another county from that in which suit was brought, is sufficient ; the act not requiring the attorney to be of the proper county. 5 Watts, 370. Service of the notice by the plaintiff himself, will not dispense with the necessity of his signature, or that of his attorney, to the notice. 9 Barr, 135. If the plaintiff himself sign the notice, and no attorney is endorsed, the abode of the plaintiff should be set forth. 5 S. Sf R. 518. A notice endorsed, "T. B., of Washington, is my attorney," was held sufficient ; the notice being given in Washington county, and the seat of justice, where the attorney resided, being of the same name. 6 Binn. 83. But a notice subscribed thus — "J. L., attorney for T. K., No. 79 So. 5th St.," is not a sufficient notice of the attorney's place of abode ; a subscription of this sort would indeed be evidence that the party was there when he wrote it, but it is not evidence, under the act of Assembly, that it is his place of abode, which must be expressly stated. 1 Br. 65. So, where a notice to a justice was signed by the plaintiff's attorney, and dated at Wilkesbarre, but there was no endorsement of His natae, neither was it said in any part of the notice, or on the back of it, that he resided at Wilkesbarre, it was held to be insufficient. 3 S. Sf R. 295. (8)'Thisfee of twenty shillings, for preparing and serving the notice, must be charged in the bill of costs, and paid by the defendant, upon a recovery against him. 1 Ash. 60. (9) In demands fiiuuded on torts, and sounding in damages, any sum of money may be treated as amends, if sufficient in amount;' of which the jury are to judge. 3 Watts, 319. Payment of any sum accepted as satisfaction for a personal injury, is sufficient. 1 Bac. Abr. 41. But where the action is for a specific penalty, given to the party grieved, nothing less than the amount of the penalty is sufficient amends, and available as a defence, 4 JBinn, 25. 3 Watts, 317. 7 Ibid. 491. It is not necessary, however, for the justice to make a regular tender of amends, if the other party, by his conduct, dispense with it, by a previous refusal to accept. 3 P. R. 519. 356 JUSTICES OF THE PEACE, ACTIONS AGAINST. the party complaining, or his or her agent or attorney ; and in case the same is not accepted, to plead (10) such tender in bar to any action to be brought against him, grounded on such writ or process, together withJhe plea of not guilty,^ and any other plea, with leave of the court; and if, upon issue joined thereoii, the jury shall find the amends so tendered \ to have been sufficient, they they shall give a verdict for the defendant; and in such ease, or in case the plaintiff shall become nonsuit, or shall discontinue his or her action, or in case judgment shall be given for such de- fendant or defendants, upon demurrer, such justice shall be entitled to the like costs as he would have been entitled unto, in case he had pleaded the general issue only ; and if, upon issue so joined, the jury shall find that no amends were tendered, or that the same were insufficient, and also against the defendant or defendants on such other plea or pleas, then they shall give a verdict for the plaintiff, and such damages as they shall think proper, which he or she shall recover, together with his or her costs of suit. Sect. III. No such plaintiff shall recover any verdict against such justice, in any case where an action shall be grounded on any act of the defendant, as justice,of the peace, unless it is proved, upon the trial of such action, that such notice was given as aforesaid ;- but in default thereof, such justice shall recover a verdict and costs as aforesaid. Sect. IV. In case such justice shall neglect to tender any amends, or shall have tendered insufficient amends, before the action brought, it shall and may be lawful for him, by leave of the court where such action shall depend, at any time before issue joined, to pay into cpurt such sum of money as he shall see fit ; whereupon such proceedings, orders aijfl judgments, shall be had, made and given, in and by sudh court, as in other actions where the defendant is allowed to pay money in court. Sect. V. No evidence shall be permitted to be given by the plaintiff, on the trial of any such action as aforesaid, of any cause of action, except such as is contained in the notice hereby directed to be given. Sect. VII. Provided always, That no action shall be brought against any justice of the peace, for any thing done in the execution of his office, or against any con- stable or other officer, or person or persons acting as aforesaid, unless commenced within six months after the act committed. (11) Notice to. an Alderman of an intended Action for taking illegal Fees. Philadelphia, November I3th, 1848. To J. B,, Esquire, one of the aldermen of the county of Philadelphia : Sir: — Take notice, that unless you tender amends within thirty days, I will bring my action against you for the following cause, to wit: That on the 19th day of October, A. D. 1848, you did demand and take from me the sum of thirty-seven cents, as and for your fees for issuing an execution and entering the return thereof, in a certain action, wherein judg- ment was rendered- by you for the sum of one dollar and costs, on the 5th day of October, 1848, in which one C, S. was plaintiff, and I, G. N., was defendant; the said sum of thirty- seven cents being a greater fee than is expressed and limited for the said services by the act of Assembly in such case made and provided, whereby you have forfeited to me the sum of fifty dollars. (12) G. N. Endorsed.-Notiee to J. B., Esquire :-W. H. D., Esquire, is my attorney ; his place of abode is No. 75 Walnut Street, in the city of Philadelphia. G. N. (10) If the justice relies upon a tender of amends before suit brought, it must be epeciaUy pleaded; in which ease only does the statute authorize the court and jury to pass on it 3 (11) The limitation may be taken advantage of on the general issue. 9 S. & S. 14. (12) For other forms of notice, see 4 Binn. 25 ; 6 Binn. 83 ; 12 S * R 145 ■ 7 Watta 297 491, 497; 17 S. * B. 75; 7 1^. *,S. 362; 2 Tr. Sf H. Pr. 472; IHa'^,^ ' JUSTICES OF THE PEACE, JURISDICTION OP. 357 Sttstttes of tfie ileate, 3)uti!$trittion of tfir. Jurisdiction is the authoriiy, or power, vested in a man, or men, a court or courts, to do justice in causes of complaint brought before them. The Supreme Court, and the judges thereof, have jurisdiction all over Pennsylvania, and are not restrained to any county, district, or place ; but all other courts, judges, and justices are confined to their particular districts or jurisdictions, which if they exceed, what- ever they do is erroneous. 1. Justices of the peace cannot issue any process in civil cases, except suipcenas, to extend beyond the bounds of their county. All persons and property found within his district are subject to the alderman's or justice's jurisdiction. He. has no power over cases " where the title to lands and tenements may come in question, or actions of slander, or upon promise of marriage." , 2. His jurisdiction in civil cases is derived from statutes altogether, and where the cause of action is not embraced in any of these, he cannot interfere. 1 ^sk. 152. 3. A justice must proceed by summons or capias, and cannot enter judgment upon a warrant of attorney. 1 Binn. 105. 4. When a justice of the peace has jurisdiction of a case, his judgment, though erroneous, is binding on the parties until reversed on a certiorari or appeal. 9 S. Sf R. 12. 5. Courts of limited jurisdiction (as those of justices of the peace) must not only act within the scope of their authority, but it must appear on the face of their pro- ceedings, that they did so ; and if this does not appear, all that they do is coram non judice, and void. 1 Pet. C. C. 36. 6. The real sum due upon a bond must determine the jurisdiction of a justice, though there be a warrant of attorney to confess a judgment, and the penalty exceed one hundred dollars. 2 D. 308. 7. A justice has no jurisdiction of an action against a constable, for not paying over, to a landlord, a year's rent, out of the proceeds of an execution. Seitzinger v. Steinberger, Sup. Court, Feb. 2, 1850. 8. Nor of an action on the case for a nuisance. 1 Ash. 152. 9. A plaintiff may, undoubtedly, remit a part of his demand to bring the residue within the jurisdiction of a justice. 1 P. R. 22. 10. A person may be committed for a crime by one magistrate upon an affidavit made before another. A magistrate who is found acting as such, must be presumed to have taken the requisite oaths. 2 Pel. Cond. R. 33. 11. A justice of the peace has jurisdiction to sustain an action upon an insolvent bond. 2 P. R. 462. 12. An alderman has no jurisdiction of an action -to recover damages for a defi- ciency in quantity on a contract for the sale of land. 3 R. 325. 13. An alderman or justice of the peace has no power to imprison for desertion, under the act of Congress, a seaman who was shipped in a foreign port. 1 iS. ^ jR. 392. Nor to take cognizance of a charge of assault and battery alleged to have been committed by an officer of a foreign merchant vessel upon one of his seamen while on board the ship. U. S. v. Jenkins, U. S. Sist. Court, May, 1851, ^er Kane, J. 14. No justice can take cognisance of a cause that has been previously decided by another justice. 2 D. 78, 114. ^ 15. Want of jurisdiction of a justice may be taken advantage of in every stage of the cause; after plea, trial on the merits and judgment; or on appeal entered and the cause in court. 1 Binn. 220. 16. Where it appears, on the face of the record, that the justice 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 proceedings as a nullity, and discharge a defendant committed under such judgment. (1 D. 135.) But where his jurisdiction evidently appears on the record, the settled rule has been to form no presumption against the accuracy of the magistrate's proceedings : 358 JUSTICES OF THE PEACE, JURISDICTIOlsr OP. (5 Binn. 32, 4 F. 373 ;) and his judgment, though erroneous, is binding on the parties until reversed on certiorari or appeal. 4 laintiff's land. 6 W. 337. 38. A justice of the peace has not jurisdiction of a cause of action agsiitist another justice, for money collected in his official capacity. 6 W. 384. 39. A justice of the peace has power to take a recognisance for the appearance of one arrested on sMspicion of horse-stealing. 7 1^.454. 40. All questions arising out of a bailment are within the jurisdiction of a justice of the peace under the act of 1810. T W. 542. Ibid. 175. 41. llr a claim is tendered by a defendant before a justice of the peace, and is a set-off" against the plaintiff's demand, of which claim the justice would not have had jurisdiction had the defendant first sued there, the justice cannot entertain it. %Ash. 150. 42. A justice of the peace has no jurisdiction of an action of trespass where the action sounds in damages merely, but only where the trespass has occasioned a loss to the plaintiff* capable of ascertainment and compensation. '3 Penn. L. J. 425. But see 13 S. ^ R. 417. Suffttceff of v^t i^tmt, Sutrii^Qiction of, tmtrer t|je Wxittti ^t^Xm' ILaU)j9. I. Of suits for debts. I III. Of criminal prosecutions. II. Of suits for penalties and forfeitures. | The mode of proceeding to execute the powers of a state magistrate, under the federal authority, is given with brevity and clearness in the following extract from 3 Backers Manual, 95 — 97. I. Suits for Debts. The United States may sue, (in their own name, or in the name of an authorized public officer,) in any state court, or before any state magistrate, for the recovery of debts due to them, in all cases where the acts of Congress do not vest an exclusive jurisdiction in the federal courts. Such suits, hovirever, both in their nature and in their amount, must be within the jurisdiction of the state court or state magistrate, according to the laws of that state providing for suits Instituted by private persons. The process for commencing, prosecuting, and terminating suits of the United States, is the same as in suits between individuals. II. Suits for Penalties and Forfeitures. By the judicial act, the District Court of the United States is vested with ex- 360 JUSTICES OF THE PEACE, JURISDICTION OF. rlusive original cognisance of all seizures on land or water, and of all suits for penalties and forfeitures incurred under the laws of the United States ; but it has been seen that subsequent acts of Congress have given jurisdiction to state courts and state magistrates, for the recovery of particular penalties and forfeitures. It is to be likewise observed, that the state magistrates, having received due information of offences committed, or goods concealed, in violation of the laws of the United States, may, lawfully, issue warrants of arrest and search warrants, as in similar cases occurring under the state laws. Upon examination of the case, if it is found to be within the state magistrate's jurisdiction, he will proceed to decide it; if not, he will refer the case to the competent federal judge or tribunal. The process in cases of penalty is the same as in actions of debt, for money due. The process in cases of forfeiture of goods is an information in rem. In both de- scription of cases, the cause of action should be in the express terms of the act of Congress, and the declaration or information should state that the same occurred "contrary to the form of the act of Congress in such case made and provided." lU. Criminal Prosecutions. For any crime or offence against the United States, the offender may be arrested, imprisoned, or bailed, (as the case may be,) by any justice of the peace, or other state magistrate; but where the punishment maybe death, bail can only be admitted by the Supreme Court or Circuit Court of the United States, or by a justice of the Supreme Court, or a judge of a District Court. If, how- ever, a person committed by a justice of the Supreme, or a judge of a District Court, for an offence not punishable with death, shall afterwards procure bail, and there be no judge of the United States in the district to take the same, it may be taken by any judge of the Supreme, or Superior Court ,of law of the state. The usual mode of process against offenders in the state is to be issued, and at the expense of the United States. If the crime or offence charged is not capital, the state magistrate, when the offender is brought before him, may im- prison or bail him for trial before such court of the United States, or of the state, (in the specified cases,) as have cognisance of the offence. Where the punish- ment of the offence may be death, the state magistrate cannot admit the offender to bail, but must commit him for trial, or until discharged by the due course of law. In cases bailable by the state m.agistrate, he must take a recognisance from the offender and his sureties, in a form similar to that adopted in cases arising under the state laws. He must, also, take the recognisances of the witnesses for their appearance to testify in the case, which may be required on pain of im- prisonment. And it has been judicially decided, that the accused has a right to the same process to compel the attendance of the witnesses on his behalf. The state magistrate must return, as speedily as may be, into the clerk's office of the court having cognisance of the offence, copies of the process, together with the original recognisance taken from the party accused and the witnesses. PROCESS TO RECOVER SEAMEN's WAGES. Eastern District OF Pennsylvania, City and") County of Philadelphia. y^' To the Marshal of said district, or to any Constable of the said City: YOU are hereby commanded forthwith to summon C. D., master of the ship or vessel called the Argus, if he be found within the said city or county, to be and appear before me, the subscriber, one oJ the aldermen of the said city, at my office, No. 56 South Fourth street, on the sixth day of May, at ten o'clock in the forenoon, (the residence of- the judge of the district being more than three miles from this place,) to show cause why process should not issue against the said vessel, her tackle, furniture, and apparel, according to the course of admiralty court?, to answer for the wages of A. B., mariner on board the said vessel. Wit- ness ray hand and seal this first day of May, in the year of our Lord one thousand eight hundred and forty-four. E. F., Alderman. [seal.] LANDLORD AND TENANT. 361 CERTIFICATE TO THE CLERK OF THE DISTRICT COURT, A. B.T vs. 5- C. D.3 Claim for Seamen's wages. Summons issued 1st May, 1844. Returnable 6tli inst. at ten o'clock. It appearing that the wages are not paid, satisfied or forfeited, or the matter in dispute settled, I therefore certify, that there is sufficient cause of complaint whereupon to found admiralty process. Philadelphia, 6th May, A. D. 1844. E. F., Alderman. [seal.] To F. H., Esq., Clerk of the District Court. Note. — ^For any crime or offence against the United States, the, offender may be arrested, &c., &c., agreeably to the usual mode of process against offenders in the State where he may be found. The caption, however, of the process must be altered, and " The United States of America" inserted in the place of " T%e Commonwealth of Pennsylvania." WLimtiUyxti wxa Etxmnt* I. Remarks on the act of March 21, 1772. — Who may proceed under that act — the mode of proceeding to recover possession of the demised premises. IL Remarks on the act of April 3, 1830. — Under what circumstances, and in what man- ner, a tenant may be proceeded against — how the tenant may stay proceedings — how the complaint shall be heard. ' in. Remarks on the act of March 25, 1825.— Of the proceedings necessary to se- cure the rent when the tenant has conveyed away his goods, &c., from the demised pre- mises, and to secure payment of the rent when the tenant has removed, or to compel him to re-deliver up his premises. IV. Extracts from the act of June 16, 1836; and acts of 1810 and 1814. V. Judicial opinions, arranged as follows : — Landlord and tenant generally — of the lease — of the surrender of the property — of the rent — of the distress for rent — and for use and oceupation. FOHIIS TTirnEB THE ACT OF 1772. Appendix, No. 1. Notice to quit. 2. Complaint of the landlord to two jus tices. 3. Precept to the sheriff by the justices. 4. Inquisition of the landlord and tenant's court. 5. Warrant to oust the tenant. 6. Record of the proceedings of the court. 7. Summons to third party. FORMS UNDEK THE ACT OF 1830. 8. Notice to quit. 9. Oath [or affirmation] of the landlord. 10. Summons for the tenant. , 11. Writ of possession. 12. Docket entry. FORMS UNDER THE ACT OF 1825. 13. Oath [or affirmation] required from the landlord when the tenant has removed his goods to defraud the landlord of his rent. 14. Summons against the tenant, 15. - Writ of possession. 16. Docket entry. I. Of all the jurisdiction confided to the magistrate, by the laws of Pennsylvania, there is no portion more important, and probably none so little understood, as that relating to the rights and duties of landlords and tenants. By many, the existing laws are inveighed against as being oppressive upon the tenants and too favourable to the landlord ; while an equal number reprobate them as affording no proper security to landlords, and as inviting tenants to a failure of rent and duty. A slight examination will serve to show that these complaints are groundless, and that while the rights of the landlord are defended and protected, the proper privileges of the tenant are sacredly regarded. Legislation on this subject has been frequent, its debates protracted, and the existing system devised after careful and studied deliberation and examination, and it will be found as impartial in its protection arid as summary in its redress as the nature of the case will admit, and inferior to the system of no other state or country. The legislature have carefully avoided giving to magistrates any jurisdiction upon questions office to lands, and have confined their authority to cases requir- ing prompt remedy, reaving the right of trial by jury to the judicial tribunals in all cases involving the right of ownership. To have subjected a landlord to the delay of ordinary trials in a court of law, in the cases provided for before justices of .362 LANDLORD AND TENANT. the peace, would have been to jeopard the collection o( rent in arrear, and deprive landlords of their right of possession without any adequate security for redress of such wrongs. The jurisdiction of magistrates extends only to restore or change possession of real estate, and the various acts of Assembly prescribe the circumstances and the manner under which this jurisdiction shall be exercised. The earliest act of Assembly on the subject was passed March 21st, 1772, which gives authority to a landlord to repossess himself of his property, at the expiration of the term for which it was demised. Prior to the passage of that act, the only mode of obtaining possession was by ejectment ; a process which was found to be dilatory and tended to increase the vexations with which a troublesome tenant chose to harass his landlord. This act has been found so beneficial as to have remained unaltered, in its principal features, from the date of its original passage. [The 12th section with the preamble to the act of March 21, 1772, is as follows:] Sect. XIL And whereas it frequently happens, within this province, that les- sees or tenants for years, or at will, often hold over the tenements to them demised, after the determination of such leases, and although such lessees and tenants have been required to deliver up the tenements to the landlord or lessor who had occasion to dwell in his own house, or give, grant, or demise the same to another, yet they have most unjustly refused so to do, and have obliged the lessors, or landlords, at a great expense, to bring ejectments against their tenants, and by the delays incident to law proceedings have kept the owner of the house at law and out of possession several years. For preventing therefore such unjust practices, Be it further enacted, that where any person or persons in this province having leased, or demised, any lands or tenements, to any person or persons, for a term of one or more years, or at will, paying certain rents, and he, or they, or his or their heirs or assigns, shall be desirous upon the determination of the lease to have again and repossess his or their estate so demised, and for that purpose shall demand and require his or their lessee or tenjint to remove from and leave the same, if the lessee or tenant shall refuse to comply therewith, in three months after such request to him made, it shall and may be lawful to, and for, such lessor or lessors, his or their heirs and assigns, to complain thereof to any two justices of the city, town, or county, where the demised premises are situated, and upon due proof made before the said justices that the said lessor or lessors had been quietly and peaceably possessed of the land or tenements so demanded to be delivered up, that he or they demised the same under certain rents to the then tenant in possession, or some person or persons, under whom such tenant claims or came into possession, and that the term for which the same was demised is fully ended ; that then and in such case, it shall and may be lawful for the said two justices to whom complaint shall.be made as aforesaid, and they are hereby enjoined and required forthwith to issue their warrant, in nature of a summons directed to the sheriff of the county, thereby commanding the sheriff to summon twelve substantial freeholders, to appear before the said justices within four days next after issuing the said summons, and also to summon the lessee or tenant, or other person claiming or coming into possession under the said lessee or tenant, at the same time to appear before them, the said justices and freeholders, to show cause, if any he has, why restitution of the possession of the demised premises should not be forthwith made to such lessor or lessors, his or their heirs or assigns ; and if upon hearing the parties, or in case the tenants, or other persons, claiming or coming into possession under the said lessee or tenant, neglect to appear after ■being summoned as aforesaid, it shall appear to the said justices and freeholders that the lessor or lessors had been possessed of the lands or tenements in question ; that he, or they, had demised the same for a term of years, or at will, to the person in possession, or some other under whom she, or he, claims or came into possession, at a certain yearly or other rent, and that the term is fully ended ; that demand had been made of the lessee or other person in possession as aforesaid, ■ to leave the premises three months before such application to the said justices; that then, and in every such case, it shall and may be lawful for the said two LANDLORD AND TENANT. 363 justices to make a record of such finding by them the said justices and free- holders ; and the said freeholders shall assess such damages as they think right against the tenant or other person in possession as aforesaid fox the unjust deten- tion of the demised premises, for which damages and reasonable costs judgment shall be entered bj' the said justices, which judgment shall be final and conclusive to the parties, and upon which the said justices shall, euid they are hereby enjoined and required to issue their warrant, under their hands and seals, directed to the sheriff of the county, commanding him forthwith to deliver to the lessor or les- sors, his or their heirs or assigns, full possession of the demised premises afore- said, and to levy the costs taxed by the justices, and damages so by the freeholders aforesaid assessed, of the goods and chattels of the lessee or tenant, or other per- son in possession, as aforesaid, any law, custom or usage to the contrary notwith- standing. Purd. 1016. Dunl. 107. From a careful perusal of this section, the object of which is well explained in thd preamble, it will be seen that there must have been a letting or lease,(l),or permission to use and occupy, under which the party in possession became tenant of the party claiming as landlord. This tenancy, or permission, may have been either by written or verbal lease or agreement, provided, in the latter case, that such lease does not extend beyond three years, in which event the law requires it to be in writing. Purd. 9061 Dunl. 112. It is also requisite that there should have been, at the inception of the tenancy, a rent reserved, payable yearly or otherwise, according to the terras of the agree- ment ; or, in the absence of any agreement as to the time of its payment, accord- ing to established usage ; but though the times of payment may be inferred, and need no specific agreement, yet it is well settled that there must he a rent agreed upon to be paid, reserved by the lessor and promised by the lessee ; for the act of Assembly, before recited, limits the operation of this remedy to cases in which there has been a demise to a person or persons "paying certain rents." And where no certain rent (2) has been reserved, the landlord cannot claim the benefit of this act of Assembly, but is left to his action of ejectment — the remedy by which possession was universally souglit before the passage of this act — a mode which is tardy and inconvenient in its operation, and expensive in its execution. The 1 19th section of the act of 16th June, 1836, {Purd. 456, Dunl. 831,) declares that the purchaser of real estate at sheriffs' sale, shall be deemed the landlbrd pf the tenant or lessee, and shall have the like remedies to recover the rent which the de- fendant might have had : it is at his option, if the lease be made after his judgment, to disaffirm it, or he may affirm it, and avail himself of the legal rights and remedies of the former owner. 4 W. Sf S. 541. 5 Ibid. 433. The lease must have expired, or if it be a tenancy at will, the lessor must be desirous to terminate the tenancy, and must, in either case, have given to the (1) "Letting, or lease, or permission to use and occupy." Here is the origin of the rela- tion of landlord and tenant. The owner has mote land than he wants for his own use. The tenant is willing to use the land and to comply with the terms of the landlord. They agree Ttpon the terms as to rent, time, and other circumstances, and this constitutes a "letting." The agreement is mutual, the tenant to hire, and the owner to receive a compensation for the use of his property, whether houses or lands. Such an agreement is binding for any period not exceeding three years, even when made verbally. For a longer period than three years it must be in writing, and whether verbal or by writing, it should be witnessed, and must, if required, be proved as any ordinary contract. The landlord must agree to the letting : merely lending the key of a house to a person con- stitutes no lease. Cases sometimes occur where the key is loaned for the examination of the premises, and unlawfully retained, and possession is taken and kept. In such cases the wrongrdoer being, of course, worthless and irresponsible, the landlord should carefully avoid recognising him as a tenant On discovering the fraud, he should immediately apply to a magistrate, whose duty it would be to proceed against the party, criminally, for the forcible entry and detainer, or for forcible detainer only, as the facts might warrant. (2) "Certain rent." The smallest amount of money, goods, or services, at stated times, or when required, has been decided to be " a certain rent." 5 Bum. 539. Kent is often stipulated to be paid quarterly or monthly, in advance, in which case the re- medy by distress exists as completely as if the rent were payable at the end of the month or quarter. Such contract also entitles a landlord to a lien against an execution upon money in the sheriff's or constable's hands. 2 W%. 95. See 2 Troubat (f Holy's Practice, 151, where the subjects of distress and replevin are fully treated. 864 LANDLORD AND TENANT. tenant three months' notice to quit the premises ; and it is only where, at the ex- piration of the three months, the tenant disregards the notice, that the assistance of this act can be invoked. (3) A tenancy at will, or for no definite time, where rent is reserved payable quar- terly, or on any certain times, has been holden to be a lease from year to year, so long as both parties please. 4 R. 123. And in Pennsylvania, where the letting is not intended for more than a year, it is general, without naming any time, and pursuant to this decision is always .deemed a lease for one year, and unless at or before the expiration of the year, dissented from by either party, is deemed to continue to the subsequent year, always being a lease for a single year and no longer. Where the lease is for years, or for a time certain, the notice to quit may be given at any time before the expiration of the term, and the proceedings under this act may be taken three months after such notice, the term having expired, if the tenant has not complied with the request contained in the notice. Where, however, the tenancy is at will, which, as before mentioned, has been decided to be from year to year, the notice to quit must be given at least three months before the expiration of the year, in order to entitle the landlord to the benefit of this remedy. The reason for the difference is said to be, that in case of a lease for a certain time, the expiration of it is well known to both parties, and there is an implied agreement to surrender upon the termination of the lease, and therefore it does not require notice three months previously to the ending of the term. It is, how- ever, not so where the tenancy is at will, determinable at pleasure ; and therefore the law seems to require that the notice should be given at least three months be- fore the expiration of the year, so that the tenant may have a timely admonition of the landlord's intention to have his premises upon the termination of the existing or current year. It has recently been decided in the case of Cook v. J\reilsqn, (10 Barr, 41,) that a tenant from quarter to quarter, who has held over, is not bound to give notice of his intention to quit at the end of the current quarter. Upon this question the Supreme Court were divided, and the decision of the District Court was affirmed, without any written opinion being delivered. The learned dissenting opinion of Judge Sharswood in the court below is reported in Bright. R. 463. If, at the expiration of three months after notice, the tenancy having expired, the tenant still remains in possession, either by himself or his sub-tenants, then recourse is had to this act of Assembly as the means of obtaining possession. [See form of the Notice, in Appendix No. l.J Landlords are sometimes in doubt as to their remedy in cases like the foUowmg : A. rents a house to B. for one year. At the proper time A. gives notice to B. that at the expiration of the year he shall require a surrender of the premises. B. says, " I shall be ready, but I have just had a quarter's rent in advance from C. and , D. for the store and first floor, and they refuse to remove." What is A. to do to get possession at the time he requires it, B. not being able to pay the rent, much less damages ? In such a case it is clear that the landlord has nothing to do with the sub-tenants. They are liable to expulsion upon the process so issued against B. after regular (3) Where the legislature has thus carefully guarded the tenant against any arbitrary or precipitate conduct on the part of his landlord, it might be supposed that a mutual or reci- procal protection would be generally presumed and conceded to landlords by their tenants ; and although the law, fortunately, is adequate to that purpose, yet no error is more popular and apparently inveterate, than the notion that a tenant either in town or country, has the right, of his own accord, to put an end to a lease for years, at any quarter-day during his te- nure, without the assent of his landlord, the moment he finds or chooses to imagine that his lease is unprofitable or inconvenient. We can furnish no explanation of the causes anil continuance of this extraordinary notion, so difierent from the general accurate ideas of the binding character of contracts, which requires both parties to unmake as well as to make them, except this, that the landlords themselves have adopted the same delusion, or that they either deliberately surrender their strict rights when the tenant is solvent, or wisely deem "•ati empty house preferable to a bad tenant," when he is irresponsible. LANDLORD AND TENANT. 365 notice to B., precisely as if the sub-tenants had made no such bargain with B. The remedy against B. is under the act of 1X72, to be presently noticed, unless he is in arrear of rent, and there are not sufficient goods on the premises, when a more summary process, of which we shall treat hereafter, is furnished by the act of 1830. • When the landlord wishes to proceed under the act of 1772, proof is made be- fore two magistrates of the city, borough, or county, wheresoever the demised pre- mises are situate — That the lessor had been possessed of the premises, and had demised the same to the tenant in possession, or to some person or persons under whoni the, tenant claims, or under whom he obtained possession ; That a certain rent had been, reserved ; That the term for which the premises were demised had fully ended ; That notice to quit had been given three months previously ; And that the tenant had neglected or refused to comply with the notice. [See the form of complaint. Appendix No. 3.] Upon proof being made of these facts, it is the duty of the two magistrates to issue a venire to the sheriff, [see the form. Appendix No. 3,] commanding him to summon a jury, pursuant to the requisitions of the act, to appear at a place, and on a day certain. If due proofs of the truth of the complaints be submitted to the two justices and jury composed of twelve freeholders, which, t&us assembled, constitute what is commonly termed " a Landlord's and Tenant's Court," and they shall find the complaint to have been well founded, a record of their finding of these facts is made by the two justices, [see the form. Appendix No. 4,] who, together with the jury, assess damages for the unjust detention of the property. The finding of the jury, both upon the point of possession and amount o{ damages, being thus entered of record by the magistrates, is final and conclusive, and the magistrates issue a writ of possession directed to the sheriff, commanding restitu- tion of the premises to the landlord, and also that the sheriff levy the amount awarded of damages and costs. , [See the form, Appendix No. 5.3 If, however, during the pendency of these proceedings, the tenant alleges that the title to the property is disputed by virtue of a right acquired since the com- mencement of the lease, and on oath or affirmation, to be made by the party claim- ant, that he verily believes that he is entitled to the premises in dispute, and enters surety to prosecute his claim, then the proceedings before the justices shall be forthwith suspended. If, however, the condition of the recognisance be not punc- tually and in all things complied with, the recognisance will be forfeited to the use of the lessor, and the proceedings gone on with before the magistrate and jury, as at first proposed. [Appendix, No. 6.] This remedy is given to the tenant by the 13th section of the Act of 1772, {Purd. 1017, Dunl 109,) which is as follows : " Sect. 13. Provided always, that if the tenant shall allege that the title to the lands and tenements in question is disputed and claimed by some other person or persons, whom he shall name, in virtue of a right or title accrued or happening sitice the commencement of the lease, so as aforesaid made to him, by descent, deed, or from or under the last will of the lessor, and if, thereupon, the person so claiming shall, forthwith, or upon a summons, immediately to be issued by the said justices, returnable in six days next following, before them appear, and on oath or affirmation, to be by the said justices administered, declare that he verily believes that he is entitled to the premises in dispute, and shall, with one or more sufficient sureties, become bound by recognisance, in the sum .of one hundred pounds, to the lessor or lessors, his or their heirs or assigns, to prosecute his claim at the next court of Common Pleas, to be held for the county where the said lands and tenements shall be, then, and in such case, and not otherwise, the said justices shall forbear to give the said judgment ; Provided also, that if the said claim shall not be prosecuted according to the true intent and meaning of the said recogni- sance, it shall be forfeited to the use of the lessor or landlord, and the justices aforesaid shall proceed to give judgment, and cause the lands and tenements aforesaid to be delivered to him in the manner hereinbefore enjoined and di- rected." 366 LANDLORD AiNJJ 'i'KrSAiNiv In the proceedings by the landlord under the act of ITT^, as in other cases, a writ of certiorari may issue and remove them. If the execution be partially or wholly executed, it is clear that this writ is no supersedeas, and the only subject of inquiry before the court,, out of which the writ issued, will be the regularity or sufficiency of the proceedings as they are recorded by the magistrates. If there be no error on the record, matters of fact or testimony cannot be noticed ; the judgment will he affirmed, and the successful party is entitled to all costs; whereas, upon a reversal of judgment, no costs are allowed, each party paying his own expenses. The decision of the court upon a case thus brought to it, by a writ of certiorari, is not final and conclusive, and can be made the subject of a writ of error, to a higher tribunal. These details constitute the proceedings by which a landlord may repossess himself of his premises at the expiration of the time for which he had demised the property ; and such are the privileges with which a tenant is invested. While it is but just that he should surrender the property at the expiration of the time agreed upon ; the law recognises it as equally fair and just that the landlord should give ample notice of his intention and desire to repossess himself of the property when the tenure has expired, and the terms of the original agreement have been fulfilled. The proceedings already detailed are to be had where the tenant pays his rent, and are only for the purpose of repossessing the landlord of his premises at the expiration of the time for which thfey had been demised. The damages allosved for holding over being merely incidental and with a view to preveat a multipli- cation of lawsuits and litigation. 11. There are, however, cases of an entirely distinct character in which the law permits the landlord to adopt another course by which to repossess himself of his property during the term for which it had been demised, or to secure his rent. These are where the tenant refuses or neglects to pay his rent, and where there is not, on the premises, sufficient property to secure payment of the rent in arrear. Frequent and glaring instances of the failure of justice in such cases occurred prior to the enactment of the present law, by which the old mischiefs are reme- died. The act of Assembly, in question, which was passed April 3, 1830, {Purd. 1020, Dunl. 502,) is in the following words : Mtof Aprils, 183Q. Purd. 1020. Dunl. 502. Sect. I. In case any lessee for a term of years, or at will or otherwise, of a messuage, lands or tenements uppn the demise whereof any rents are or shall be reserved, where the lessee shall neglect or refuse to pay rent reserved, as often as the same may grow due according to the terras of the contract, and where there are not goods on the premises adequate to pay the said rent, so in arrear, except such articles as are exempt from levy and sale by the laws of the common- wealth, it shall and may be lawful for the lessor to give the lessee notice to quit the premises within fifteen days from the date of the notice, if such notice is given on or after the first day of April, and before the first of September ; and within thirty days from the date thereof, if given on or after the first of September, and before the first day of April: and if the lessee shall not, within the period afore- said, remove from and deliver up the said premises to the said lessor, or pay and satisfy the rent so due and in arrear, it shall be lawful for the lessor to makii complaint, on oath or affirmation, to any two aldermen or justices of the peace, as the case may require, who, on its appearing to them that the lessor has demised the premisses, for a term of years, or otherwise, whereof any rent dr rents have been reserved, that the said rent is in arrear and unpaid; that there are not suffi- cient goods and chattels on the premises to pay and satisfy the said rent, except such goods as are by law exempt from levy and sale; and that the lessee has, after being notified in manner aforesaid, refused to remove and re-deliver up possession of the premises, shall then, and in that case, issue their precept, re- citing substantially the complaint and allegation of the lessor, directed to any LANDLORD AND TENANT. 367 constable of the proper city or county, commanding him to summon the said lessee to appear before the said aldermen or justices at a day and time to be therein fixed, not less than three, nor more than eight days thereafter, to answer the said complaint ; and the said aldermen or justices shall, on the^ day appointed, or on some other day then to be appointed by said justices or aldermen, proceed to hear the case ; and if it shall appear that the said complaint, so made, as aforesaid, by the lessor, is in aJl particulars just and true, then the said aldermen or justices shall enter judgment against such lessee, that the premises shall be delivered up to the lessor, and, at the request of the lessor, issue a writ of pos- session directed to tjie said constable, commanding him, forthwith, to deliver actual possession of the premises to the lessor, and also to levy the costs on the defendant, in the same manner that costs are now by law levied and collected on other writs of execution ; but if on the hearing aforesaid it shall appear that the said complaint is vexatious and unfounded, the said aldermen or justices shall dismiss the same with costs to be paid by the lessor : Provided always, that a; any time before the said writ of possession is actually executed, the lessee may supersede and render the said writ of none effect by paying to the said constable, for the use of the lessor, the rent actually due and in arrear and the costs : which rent, so in arrear, shall be ascertained and determined by the said aldermen or justices on due and legal proof, and endorsed by them on the said writ of posses- sion, together with the costs of the proceeding ; of all of which doings the said constable shall make return to the said aldermen or justices within ten days after receiving of the said writ, and the said constable shall be answerable in default of executing the said writ according to its lawful requisitions, or in returning the same in the same manner, as to the amount of rent ascertained and determined', and costs, as constables are now by law answerable on other writs of execution : Jind provided further. That no writ of possession shall be issued by the said aUermen or justices, for five days after the rendition of judgment ; and if within the said five days, the tenant shall give good, sufficient, and absolute security, by recognisance, for all costs that may have and may accrue, in case the judgment shall be affirmed, and also for all rent that has accrued, or may accrue, up to the time of final judg- ment, then the tenant shall be- entitled to an appeal to the next court of Common Pleas ; which appeal shall be then tried in the same manner that other suits are tried : ^rid provided further, That nothing herein contained shall prevent the issuing of a certiorari, with the usual form and e^ct. (4) (4) In the case of Clark v. Everly, (8 W. ^ S. 126,) the following construction of this statute was fixed by the court of Common Fleas of the county of Philadelphia (and although their judg- ment was subsequently reversed by the Supreme Court, it was for a cause entirely distinct from the construction of the act adopted by them on the following points) : 1. That the heir, devisee, or assignee of the lessor is entitled to the remedy given by the act. (9 Barr, 213.) " It will not be pretended that he (the heir) could not maintain an action of debt or covenant for the rent, or isfie his warrant of distress ; and upon what principle is he authorized to assert those rights ? Purely because the relation of landlord, and tenant exists, or, to use the language of this act, that of lessor and leasee. Now if this relationship is created by the death of the ancestor, the lessor, and all his rights descend to the heir, most assuredly he is clothed with all the authority which belonged to the ancestor, and consequently he may use all the remedies for enforcing these rights given by the law, which the original, lessor had. The right and the remedy must attend each other." 2. The lessor must accompany his notice to quit, with a demand for the amount of rent claimed, when given to the lessee. " This right given to the lessor to give a notice,, and then commenpe these proceedings, is only another means of enforcing the payment of the rent, and that too in a Way much more summary than by the warrant of distress ; and no principle is better settled, than that a distress warrant must set forth a sum certain, which is due for the rent, in order that the bailiff may know what amount of goods to distrain, and to inform the tenant what sum of money he mast tender, in order to relieve his property irom the seizure ; and, all the forms prescribed by the act of 1772, are based upon the supposition that a sum certain is demanded in the warrant of, the bailiff. li, then, this is only a means to compel the payment of rent, should not the tenant be apprized of the sum claimed 1 The latter part of the act also provides that on the payment of the amount due, at any time before he is dispossessed, he shall be entitled to re- tain the possession ; clearly showing that the amount of rent due is all that the lessor can de- mand. Now a tenant may be willing to pay all which is due ; and suppose that he has paid ail which has accrued, and if informed of any default, would instantly discharge that sum. But if the landlord has only to give a notice to quit, he compels the lessee to become a party to a law- (uit, against his will, no matter how desirous he may be to pay the rent" 3. The lessor must prow that ther« was not sufficient goods on the premises to pay the rent ; and if there were two S68 LANDLORD AND TENANT. ^ct of April 9,194:9. Dunl. 1169. Sect. VL The first section of the act, entitled " An act concerning bail and at- tachments," passed the 20.th day of March, 1845, shall not be construed to apply to the judgments of aldermen or justices, under the first section of the act, entitled " An ' act relating to landlord and tenant," passed the third day of April, 1830. The provisions of the act of April 3, 1830, as well as' that of which we have been speaking, must be strictly construed. It will be seen that like the act of 1782, its ope- rations are limited to cases of lease vi^here " a certain rent " is reserved, and all that has been said in reference to virhat is there necessary, must be considered as applicable here. Where, therefore, a certain rent which has been reserved be- comes due and payable, and there are not on the premises sufficient goods subject to distress, out of which the rent may be collected, then the landlord is entitled to the remedies of this act. If there are on the premises sufficient goods for the security of the rent, he must, in order to collect his rent, distrain, and can- not invoke the benefit of this law. But being thus within the law, his rent being due, and there not being sufficient property to distrain upon, then the landlord may give the tenant the required notice to quit the premises. With a view to guard the tenant from injustice, inconvenience, or oppression, the time of notice is varied according tp the season of the year. If the notice be given after the first of April and before the first of September of the' same year, ihea fifteen days' notice suffices ; at any other period a notice of thirty days is required. The- notice shall be express and explicit in its terms, notifying the tenant to remove at the expiration of the time fixed by law ; and it is usual, though not necessary, to assert the reasons which induce the notice. The form of the notice [marked in the Appendix No. 8] is one in general use, and has met the satisfactory adjudication of the courts and magistrates of Philadelphia. It will be found to contain a summary of the reasons upon which the law founds this entire pro- ceeding. If during the days of grace allowed the tenant, that is to say, the fifteen or thirty days, as the season shall require, he removes and delivers possession, no further action is required. The landlord must seek his rent only as a simple contract creditor, the rent becoming, what is generally called, a common debt. All that the notice sought to obtain, has been already attained by the removal. But if the tenant does not remove, then must the lessor, at the expiration of the time stated in the notice, apply to two magistrates and make oath or affirmation of his cause of complaint ; he must also satisfy the magistrates, either by his own examination under oath or affirmation, or other satisfactory evidence, of all the matters upon which the notice was based, together with the fact of the service of the notice, and the non-compliance with its demands ; and when the magistrates ^ or more premises included in the lease, he must prove there was not sufficient on either of them. 4. The notice to quit must be served on the individual residing on the premises. " The landlord was bound to serve the notice of the non-payment of rent, upon the tenant in the actual possession at the time, in order to deprive him of his estate. If he was a sub-lessee, he cannot be turned out of his possession without notice ; for he may 1)e willing to pay the rent demanded, rather than to be turned with his family into the street. From analogy to all judicial proceedings for the recovery of the possession of real estate, the tenant in possession must be served with process, or he is not affected by the judgment of the tribimal that is to deprive him of his pos- session." 5. In th6 same case, the Supreme Court decided that the act does not apply to the case of a landlord and tenant, where the tenant refuses to pay rent, under a claim of right to the re- version. Where the landlord's petition sets out the facts necessary to give the magistrates juris- diction, and their inquest recites that they Ibund these facts to be true, it is sufficient, tliough the facts found are not otherwise stated in the inquest 9 Barr, 313. In a proceeding under the act of 3d April, 1830, the justices adjudged that the premises sbo'il'l be given up to the landlord, and also found certain arrears of rent duo. The tenant appealed, and gave bail, conditioned, in the words of the act, that if the judgment should be affirmed, they would pay all costs, and all rent which had or might accrue, up to final judgment. The landlord afterwards took a confession of judgment, from the tenant, for a certain sum, not embracing the rent accruing after suit brougnt ; and judgment was entered on the appeal, as if a verdict had been rendered for that sum, and the tenant was suffered to retain possession : held, that this wan not such an affirmance of the judgment as rendered the bail responsible on the recognisance. iO WaUa, 393. LANDLORD AND TENANT. 369 aie satisfied of these premises, then the law makes it their duty to summon the tenant to appear before them at a place and on a day and hour certain, to answer the complaint. [For a cojy of the oath, see Appendix No. 9.] The person who applies for the summons in such cases, is called upon to make the oath or affir- mation, which is regarded as sufficient to warrant the issuing of the summons. [For a copy "of the summons, see Appendix No. 10.] Upon the return of the summons, the magistrates proceed to hear the case in the same manner as other cases, all the allegations of the complaint requiring to be supported by legal proof. The case is regularly tried, giving to both landlord and tenant equal rights and privileges in regard to the conduct of the proceedings and the production of testimony. If, upon the trial thus had, the complaint is found in all respects true, and all its allegations are sustained by legal and com- petent proof, then it is the duty of the magistrates to enter judgment for the re- delivery of the premises by the tenant to the landlord, which, if he does not do within Jive days, a writ of possession may issue, ffor a copy of the writ of pos- ■ session, see Appendix No. 11,] by authority of which, possession of the demised premises is delivered to the complainant, and at the same time the costs of the proceeding are collected. The tenant, however, may, at any time before he is ousted from his possession, by payment of the rent due and in arrear — the amount of which the magistrates ascertain on the trial, and endorse upon the writ of pos- session, together with the costs — suspend further proceedings ; or, if he be dis- satisfied and consider himself aggrieved by the decision of the magistrates, he ii entitled to an appeal to the court of Common Pleas, in like manner as othei appeals, upon his entering absolute surety for the amount which may be adjudged against him. This security jis for absolute payment, and not, as in ordinary cases, only for payment of the costs which may accrue. If the amount be not fully paid by the debtor, the surety is absolutely bound for its payment: the same as the bail provided by law for stay of execution. [For a copy of the docket- entry, see Appendix No. 12.] The regularity and legal correctness of these proceedings, the same as the others, may be inquired into under a writ of certiorari. This writ brings the record to the presence of the court, and the proceedings are sustained or reversed upon the legality or illegality, as it may appear upon the transcript of the pro- ceedings. Such is the remedy provided by law in cases where the tenant remains in pos- session, and neglects or refuses to pay his rent, and there is no property on the premises out of which the landlord can compel its payment. The provisions of the law are plain and intelUgible||^t prescribes clearly under what state of facts the remedy may be invoked, whtPvaracter of prima facie proof must be adduced before process can be obtained; what full proof must be given ; the manner of enforcing judgment, and the terms upon which the judgment may be suspended ; all these are detailed and described so clearly, that no misunderstanding ordiffi- ' culty can well arise, and the law should never be invoked except in cases where there is exhibited a clear right to claim it. Cases of gross violation of the terms of the lease often occur, where the land- ■ lord is remediless under these statutes. For instance, A. lets -his house to B., with an express stipulation against underletting any part of it, or conducting any manufacturing business, or having any deleterious occupations carried on in it. B. does both, and being unable to answer in damages, an action against him would be unavailing. Can A. obtain repossession under the foregoing provisions ? ' Such questions occur daily with landlords, and are as often answered in the negative. It was A.'s inadvertence, neglect, or folly, to accept an irresponsible or knavish tenant, without, at all events, inserting a clause in the lease, giving iiiin a recourse to these laws in the event of such a breach. Without it, A.i ap- • pears to have no means of redress under the aots just cited. III. The principal wrongs which require redress are the two for remedy of which the proceedings already given are provided by law. To retain a person/k premises after the time when it was agreed, either expressly or impliedly, to sur- render them ; or to retain them at all without paying the rent at the times agreed T 370 LANDLORD AND TENANT. upon, are flagrant violations of justice and right. But there are minor \w-ongg noticed and redressed by law. Among these the principal one is the fraudulent removal of goods before the rent becomes due, and witih the intent to depnye-the: landlord of his remedy by distress. . . The act of the 25th of March, 1825, contains principles and provisions too novel and important to warrant its omission, although its principles and provisions are, at present, only local in their operation. Act of March 25, 1835. Purd. 1019. Dunl. 447. Sect. L In case any lessee for life or lives, term of years at will, or otherwise, of any messuages, lands, or tenements, situate in the city or county of Phila- delphia, upon the demise whereof any rents are or shall be reserved and made payable, shall from and after the first day of August next, before such rents as aforesaid shall become due and payable, fraudulently convey away or carry off from such demised premises, his goods and chattels, with intent to defraud the 'landlord or lessor of his remedy by distress, it shall^and m^y he lawful to and for such landlord or lessee, to consider his rent so reserved as aforesaid, as apportioned up to the time of such conveying away or carrying off, and for him, or any other •person or persons, by him for that purpose lawfully authorized, within the space ■of thirty days next ensuing such conveying away or carrying off such goods. and • chattels as aforesaid, to take and seize such goods and chattels wherever the same may be found, as a distress for such rents so apportioned as aforesaid, and the same to sell or otherwise dispose of, in such manner as if the said goods and ■ chattels had been distrained ty such lessor or landlord, in and upon such demised premises for rents actually due, agreeably to the existing laws : Provided, that such landlord or lessor, before any such goods or chattels are seized as aforesaid, shall make oath or affirmation before some judge, alderman or justice of the peace, that he verily believes that said goods or chattels were carried away for the pur- pose of defrauding as aforesaid ; ^nd provided, that nothing herein contained shall extend or be deemed or construed to extend, to empower such lessor or landlord to take or seize any goods or chattels, or a distress for such rents so apportioned as aforesaid, which shall be bona fide, and for a valuable considera- tion, sold before such seizing, made to any person or persons not privy to such fraud as aforesaid, any thing herein to the contrary notwithstanding : And pro- vided also, that nothing herein contained shall he construed to apply to contracts made before the passage of this act. Sect. II. If any lessee, for a term of years in the city and county aforesaid, shall remove from such demised premises without leMuig sufficient property thereon to secure the payment of at least three moil^^' rent, or shall refuse to give security for the payment thereof in five days after demand of the same, and shall refuse to deliver up possession of such premises, it shall and may be lawful for the landlord or lessor, to apply to any two aldermen or justices of the- peace, within the city or county of Philadelphia, and make an affidavit or affirmation- of the facts, [see Appendix No. 13,] and thereupon the said aldermen or justices of the peace shall forthwith issue their precepts to any constable of the proper city or county, commanding him to summon such lessee before such aldermen or justices, on a day certain, not exceeding eight, nor less than five, days, to answer such complaint ; [see Appendix No. 14;] and the said alderman or justices shall, on the day appointed, .proceed to hear the case, and if it shall appear that the lessee has removed from the premises without leaving sufficient goods and chattels, or giving security for the payment of the rent as aforesaid, and has re- fused to dehver up possession of the demised premises, they shall enter judgment against such lessee, that said premises shall be delivered up to the lessor or land- lord forthvvfith, and shall, on the request of the said lessor or landlord, issue a writ of possession, [see Appendix No. 15,] directed to said constable, commanding Tiim forthwith to deliver possession of the premises to the landlord or lessor ; and also to levy the costs on the defendant in the same manner that executions issued by justices of the peace are directed by law. 1 R. 17?. It would seem that the provisions of this act, as to the nature and effect of the oath or affirmation of the landlord or lessor, are not so well and generally under- LANDLORD AND TENANT. -' 37I stood as it is desirable they shouldi be. By many it is supposed that the com- plaint of the landlord, before the magistrate, can be made the subject of denial or examination, and also that it is necessary.the magistrate shall issue process, upon the complaint so made, to entitle the landlord to levy on the goods removed. Neither of these positions is correct. The test is the conscience of the complain- ant, and the duty of the magistrate is ministerial ; he is merely to administer the oath, and if the oath be made in obedience to the requirements of the law, whether true or not, is not to be inquired into by the magistrate. He attests it as made, and hands the affidavit to the party making it, and therein his magisterial duty ends. No process is issued by the landlord; the , complainant, in this, case, proceeds, issues his warrant, and seizes, as if upon a distress for rent actually due, which distress, at common law, must be made upqn the premises. The oath which the landlord has made, is the justification of hiniself pr agent in making the seizure, and the truth or falsehood of the matter complained of, under oath, .cannot in any manner, in this proceeding, be made the subject of investigation. If the tenant has been wronged, he has his right of action against the wrong- doer for damages ; and in that action all irregularities, untruths, or oppressions can be made the legitimate objects of investigation. ' But while the act gives to landlords a beneficial protection, unknown to the common law, it protects carefully the rights of third persons, and declares, that if at any time, before actual seizure by the landlord, even after the fraudulent re- moval by the tenant, the goods shall have been bona fide, and for a valuable con- sideration, sold to any person not privy to the fraud, then the innocent purchaser shall be entitled to retain the goods unembarrassed by any seizure of the landlord. The justice and policy of such a provision and limitation are manifest ; there is more reason that the landlord should be watchful, and immediately follow the gQods, than that a stranger should be put to make inquiries and thereby give birth to suspicions of fraud contrary to the maxim of Jaw, that " enery thing is presumed to be rightly done until the contrary be shown." The second section of the same act is meant to remedy another evil somewhat similar to. that provided against in the first section. If a tenant removes from the premises during the terra of demise, and at the same time retains possession, it seems but justice that the landlord should have some security that his rent, when due, shall be paid. The ordinary security of the law, the remedy by distress, he is here deprived of, and therefore it is that the legislature adopted the provisions of the second section^ [For a copy of the summons, see Appendix No. 14 ; and No. 15 for a copy of the writ of possession.] All the remedies of this act are limited in their application to the city and county of Philadelphia. The right to seize, after oath of fraudulent removal, and the right of repossession during the tenancy, in case of removal, can only be claimed where the habits of so large and mixed a population require some further legislation and remedy than would seem to be necessary in other parts of the state. If the experiment shall be found productive of the good expected, its principles can easily be brought into operation in other parts of th^ common- wealth. These observations embrace all the provisions of the difierent acts of Assembly of Pennsylvania, and exhibit the various Alterations and additions which have been engrafted by our legislatures upon the common law. The common law gives to the landlord the right, when any rerit is in arrear, to levy the same by sale of any goods found upon the premises, and which he is authorized to seize. This is a right known and practised, and which is not at all encroached upon by the acts of Assembly, the provisions of which seem in aid and furtherance of this lemedy by distress. (5) (5) Form op Warrant to Distrain. To G. H. WHEREAS, C. D. is now indebted to me in the sum of ten dollars twenty-iSve cents, fcr rent due on the first day of June, A. D. 1849, these are to .authorize and impower you to distrain the goods and chattels of the said C. D., which you shall ~d on the premises now or lately occupied by' him, said premises being a house situate No. 8, StK^berry street, in the city of.Philadelphia, and the saihe retain in your possession until they can be lawfully appraised, and after due notice, 372 LANDLORD AND TENANT. The only mode by which, at common law, possession could be regained ^7^^ landlord, was by the tedious and expensive process of ejectment, the excellent sub- stitutes for which have been already given. The system, a brief summary of which has now been sketched, is believed to be as just and perfect as has been devised ; the improvements which experience and observation recommended, having been well infused into it. IV. Act op June 16, 1836. Purd. 451. Dunl 834. Sect. LXXXllI. The goods and chattels being in or upon any messuage, lands, or tenements, which are or shall be demised for life or years, or otherwise taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution : Provided, that such rent shall not exceed one year's rent. (6) Sect. LXXXIV. After the sale, by the officer, of any goods or cliattels, as afore- said, he shall first pay dut of the proceeds of such sale, the rent so due, and the sur- plus thereof, if any, he shall apply towards satisfying the judgment mentioned in such execution : Provided, that if the proceeds of the sale shall not be sufficient to pay the landlord and the costs of the execution, the landlord shall be entitled to re- cfeive the proceeds, after deducting so much for costs as he would be liable to pay in case of a sale under distress. Sect. LXXXV. Whenever any goods and chattels, liable to the payment of rent as aforesaid, shall be seized in execution, the proceedings upon such execution shall not be stayed by, the plaintiff therein, without the consent of the person entitled to such rent, in writing, first had and obtained. Sect. CXIX. If any lands or tenements shall be sold upon execution, as aforesaid, which, at the time of such sale, or afterwards, shall be held or possessed by a tenant, or lessee, or person holding or claiming to hold the same under the defendant in such 'execution, the purchaser of such lands or tenements shall, upon receiving a deed for the same, as aforesaid, be deemed the landlord of such tenant, lessee, or other person, and shall have the like remedies to recover any rents or sums accruing subsequently to the acknowledgment of a deed to him, as aforesaid, whether such accruing rent may have been paid in advance or not, if paid after the rendition of the judgment on which sale was made, as such defendant might have had, if no such sale had been made. Sect. CXX. If, after notice shall be given of such sale, as aforesaid, such tenant, lessee, or other person, shall pay any rent or sum accruing subsequently to the ac- knowledgment of such deed, [and] notice given him, as aforesaid, to such defendant; such tenant, lessee, or other person so paying, shall nevertheless be liable to pay the purchaser. ^ct of March 20, 1810. Purd. 691. Dunl.278. Sect. XX. The powers of justices of the peace shall extend to all cases of rent, not exceeding one hundred dollars, so far as to compel the landlord fo 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 ; but if. any landlord shall be convicted, after such waiver, in any court of record, 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 : Protiided, that no appeal shall lie in the case of rent, but the remedy by replevin shall remain as heretofore. Summons TO Landlord to Defalcate. COUNTY OF B , as. , E^e fflommonbiealtl) ot DennsslbtinfH, To the constable of C township, in the county of B— , or to the next constable Oi the said county most convenient to A. B., greeting: WE COMMAND you that yoii summon A. B., of the township of , in the said " sell the said goods and chattels so distrained for the best price that can be gotten for the game, for and towards satisfaction for the rent for which the said goods and chattels arc distrained, and of the charges of such distress, appraisement and sale," returning the overplus, if any, to the said tenant. And for your so doing, this shall be your sufficient warrant. WITNESS my hand and seal, this tenth day of June, A. D., 1849. A. B. JtsKAi,.] ■(6) This provision only protects the immediate landlord of the defendant 2 Harris, 400. LANDLORD AND TENANT. 373 codnty, 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 th6usand eight hun- dred and [forty-nine,] at [eleven] o'clock in the. [forenoon] of that day, to show cause, if any he has, why the just account of E. 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 defalcateil or set off out of the said rent^ Witness the said J. R., esquire, at C— township afore- said, the [tenth] day of [August,] one thousand eight hundred and forty-nine. J. R., Justice of the Peace. [seal.] Act of March 22, 1814. Purd. 693. Dunl. 306. Sect. VL The said justices of the peace and aldermen shall have original juris- diction of all cases of rent, not exceeding one hundred dollars, to be recovered as I debts of similar amount are recoverable. The second section of this act contains a proviso that if the defendant shall, before the trial of the action, make oath or affirmation that the title to lands will come in question in the said action, then the justice or aldei:man shall dismiss the same ; and in case of such dismissal, the costs shall be paid in equal shares by the plaintiff and defendant. That proviso has been held to extend to an action brought to recover rent under the sixth section. 4 Penn. L. J. 351. V. 1. Landlord and Tenant generally. —^Any act of a lessee, by which he di.saf- firms or impugns the title of the person indisputably entitled to the rent, is a for- feiture of the lease, and the landlord may consider him as his tenant, or a tres- passer. 8 W.b\. 2. The general rule of law that a tenant shall not dispute the title of his landlord, is restricted to cases in which the lease has been fairly obtained withqut any mis- representation, management, or fraud. 1 P. R. 402. 6 W. 44. 3. Even as between landlord and tenant, fixtures erected by the latter, and which he is entitled to remove, must be removed during the terra. After the ex- piration of the term, the tenant can neither remove them nor recover their value from the landlord. QW.9\. 4. Of the Lease. — A demise of a "barn," without any words being super- added, will pass no more land than is necessary for its complete enjoyment. 4 if. 339. 5. Where there is no stipulation postponing the commencement of a lease, the day on which the demise was made is inclusive, and is to be considered in computing the time of the commencement and termination of the lease. 1^«A.197. 6. Where a demise is made on the 1st of January, to hold from yeaf to year, the rent payable quarterly, the first quarter's rent is due on the 31st March, and the landlord rnay distrain at any time on the 1st of April, and so for each quarter, and the year expires with the 31st of December following. Ibid, 7. A lease for no determinate period of time, but by which an annual rent is reserved, payable quarterly, is a lease from year to year, so long as both parties please. It is binding on the parlies prospectively for one year only, capable, however, of being extended to a second, third, fourth, or fifth year, and so on, un- less determined by the dissent of either party, which may be done at the close of any one year, by giving three months' previous notice to that eflfect, but at no time before the close of a year after it has commenced. 4 i?. 123. 8. A lease for six months, or any time less than a year, is a lease for years. 5 Binn. ^tUS. 9. A lease between landlord and tenant is to be construed by the rules which govern the construction of contracts, and not by evidence of the custom of the country. 2 W. fy S. 22. 10. A parol lease " by the year," unaccompanied by more specific words, is A lease for one year, and is not binding on the parties for more than one year. 2 M. 303. 11. When a tenant remains in possession of the demised premises, after expira- tion of the term, without any new agreement, the presumption of law is, that he holds ijae premises subject to all such covenants contained in the original lease, as are Eqrl'cable to his present situation, 4. Wh. 226. 374 LANDLORD AND TENANT. 12. If there be no stipulation between the parties to a lease, on the subject of re- pairs, the tenant is bound to make fair and tenantable repairs. \ TV. S/- 8. 530. 13. After a lease has expired by its own limitation, the lessee becomes a tenant at wrill, whom the landlord may enter upon and dispossess, and in sd doing use a? much force as is necessary foi> that purpose. iW.SrS.QO. _ [The court, in delivering its opinion in this case, uses the following emphatip language: "The landlord might forcibly dispossess him (the tenant) on the in- stant, by night or by day, and ftom motives of mere caprice, with this limitation only, that he should use no greater force thaa might be necessary, and do no wan- ton damage."] ,14. A purchaser at sheriff's sale under a judgment on a mortgage^ by giving notice to quit to a tenant under a lease subsequent to the mortgage, disafKr^ns the lease and determines the tenan9y; and the relatipn of landlord and tenant cannot be renewed by the tenant's remaining in possession, or any act short of a mutual contract for a new lease. AW. fy S. 535. 15. Surrender of the Property. — An abandonment by the tenant of demised premises, is s'uch a relinquishment as amonntsto an implied surrender, and justi- fies an immediate resumption of the possession by the landlord. 7 W. 123. 16. A lease for a term less than three years, whether written or not, may be sur- rendered or transferred by an oral expression of assent. Ibid. 17. Of the Sent. — Rent is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit, yet there is no occasion for it to be, as it usually is, a sum of money; for corn and other matters may be, and frequently are, rendered by way of rent. It may also consist in services or ma- nual operations, which services, in the eye of the law, are profits. 2 Bl. C. 41. 18. Where, by the terms of the lease, the lessor is to receive, as rent, a share of the grain raised deliverable in the bushel, he has no interest in it until it is severed and delivered to him. 5 TV. ^ S. 157. 19. Justices of the peace may compel a landlord to set off the just account of the tenant, out of the rent. [See sect. 20, title Justices of the Peace.'] 20.. If the lessor enter into part of the premises, the whole rent is suspended, for he cannot apportion it by any wrongful act of his own. 1 Y. 176. 21. In the case of Martin vs. Stephens, recently decided in the District Court of Philadelphia, it was held that a letting by the landlord during a quarter, even after the tenant had abandoned the premises, constituted an eviction, and the landlord could not recover for the portion of time up to the letting, though the new letting was manifestly for the benefit of the tenant. MS. note. 22. Where the landlord claims and uses a right of passage through the premises, without the tenant's consent, it is incumbent on him to show that such right was reserved, otherwise the whole rent will be suspended. 4 D. 124. 23. An entry of a landlord upon the premises demised, without an eviction or expulsion of the lessee from at least some part of the demised premises, is insuf- cient to produce a suspension of the rent. 4 E. 339. 24. Where a lessor enters on part of the land demised, it seems to be the better opinion, and the settled law at this day, that the whole rent is suspended. 1 i?. 435. But the suspension of rent resulting from the entry of a lessor is not of any past rent due, but of the accruing rent. /6i(f. 9Barr,34.l. 25. Therefore, where rent is payable monthly, the entry of a lessor suspends only '.he month's rent, and does not prevent his recovery of the previous-rent. Jbid. 26. A purchaser of real estate at sheriff's sale in the middle of a year, k not entitled to the rent payable by the tenant, if by the terms of the lease the same was payable in advance at the beginning of the year. 9 TV. 434. 27. There is no apportionment of rent in the case of an ejcecution and sale of the land from which the rent issues, therefore a purchaser.at sheriff's sale is en- titled to the whole of the rent which falls due at the expiration of the quarter or other period next after the acknowledgment of the deed. 3 TV. 394. lO TV. 362. 28. Rent may be divided in certain cases ; but it cannot by the common law be apportioned in respect to time. Ibid. 404. 29. If, in a lease for a year, no time be mentioned for the payment of the rent, it is by law payable at the. end of the year ; and if before that time the land be LANDLORD AND TENANT. 375 sold by the sheriff upon a judgfrnent prior in date to the lease, the rent will go to the purchaser, although the landlord may have assigned it to a third person before the sale. hW.SrS. 432. 30. Upon a sale by the sheriff of goods of the tenant upon an execution, the landlord is entitled to have out of the proceeds of the sale one year's rent, if so much be due of that year's rent in which the sale was made, or the preceding year, and this if he give notice to the sheriff at any time before he pays over the money made upon his execution. 5 W. 134. 5 Barr, 390. 31. Under the 4th section of the act of 1772, a landlord is not entitled to pay- ment of rent out of the proceeds of goods taken in execution, if, previously to the levy, he had distrained upon the same goods, and the tenant had replevied them, and the replevin was depending at the time of the execution. ' 4 W. 39. 32. If the proceeds of the sale of goods taken in execution are not sufficient to pay the rent due and the sheriff's costs, the latter is entitled to retain to the amount of his costs. 1 M. 269. 33. The landlord is entitled to payment of the rent up to the day the goods are taken into execution, though it be in the middle of a quarter. But he is not en- titled to be paid up to the day of sale. 5 Binn. 555, 34. A landlord is not entitled out of the sales of the goods of the tenant by execution during the term of one lease, to rent agreed to be paid in advance on another lease not yet commenced, b W. fy S. 230. 35. If a landlord to whom rent is due takes from his tenant personal property of greater value, which the sheriff has levied in execution, and appropriates it to pay a debt due to him by the tenant, he cannot afterwards receive the amount of his rent out of the proceedings of the sheriff's sale. Ibii. 36. Distress for J?e«^— ^-Distress, in the most general sense, is any thing which is taken and distrained for rent behind or in arrear.(7) 3 Bl. Com. 6. 37. A distress for rent may be made by a bailiff upon parol authority. 4 W. 98. 38. A landlord cannot legally break open the door to make a distress. 1 Br. 241. Even of a stable. 2 Eng. L. ^ Eq. R. 275. 39. A tenant's goods are privileged from seizure on a Sunday. 1 Br. 171. 40. Rents payable in iron may be recovered by distress. 3 W. ^ S. 531. 41. A landlord may distrain for rent which, by agreement of the parties, is pay- able in advance. 2 Wh. 95. 42. Where goods are distrained for rent, and given back on a replevin, they are liable to execution on a new distress. 2 D. 68, 131. 43. Under an act of Assembly regulating distress for rent, and the right of the tenant to replevy the same, in computing the time in which the tenant piay replevy the day upon which the distress was made is excluded, and if the fifth day then be Sunday, the following Monday will be estimated as the fifth day, and during this time the landlord may impound the property distrained upon the demised premises. 6 W. 34. 44. The circumstance of the lessor having distrained upon the goods of a sub- lessee, or of the assignee of the lessee, found upon the premises, for rent due to him by the lessee, does not discharge the lessee from personal liability to the les- sor for rent afterwards accruing. 2 Wh. 162. 45. A -lease of a grist-mill for the term of one year, rendering " one third of the toll which the mill grinds," creates the relation of landlord and tenant between the parties ; and the landlord may distrain for the rent in arrear. 2 E. 11. 46. Although the owner of real estate may, in an action for use and occupation, recover whatever the jury (or justice) may consider a reasonable compensation, yet he cannot distrain, unless the rent is certain and Jixed by agreement of the parties. 3 F. R. 30. 47. A lessor who has taken a promissory note from his tenant for the amount of the rent, is not thereby deprived of the right of distress. Ibid. 487. 48. Nor is the recovery of a judgment in covenant against the tenant, a bar to a subsequent distress. Ibid. 49. The property of a stranger found on the demised premises is liable to dis- tress by the landlord. 1 R. 435. (7) See Appendix, title, " Distress for Rent." 376 LANDLORD AND TENANT. 50. The tenant on whose premises the property of a stranger is seized for rent, is liable over to the stranger. 13 S. Sf R. 54. 51. The goods of a third person placed on storage in the warehouse of a merchant who received merchandise for merchants and traders on storage in the way of his trade, are not liable to distress for the rent of such warehouse, although the occupation of the tenant is not exclusively that of a warehouseman. 17 S. Sr R. 138. 52. The terms, " necessary tools of a tradesman," in the act of Assembly, which exempts certain articles from distress for rent, are not restricted to those implements which are taken into the hands of a tradesman, but, it seems, extends to all those articles without which a man cannot work at his trade. 2 Wh. 26. 53. A weaver's loom is comprised within the " necessary tools of a tradesman," and as such exempt from distress under the act of April 10th, 1828. Ibid. 54. The goods of a, boarder are not liable to be distrained for rent due by the keeper of the boarding-house. 5 Wh. 1. 55. The exemption of certain goods from distress for rent is a privilege which the law affords to tenants, and one which they may waive by their contract. 6 W. 34. 2 Barbour, 316. 56. Distress for rent cannot be on the same day it becomes due, but must wait until the day after, which is the earliest time at which the landlord can distrain. 6 TV. 41. 57. A landlord cannot distrain goods for rent which have been previously levied upon on an execution or foreign attachment. 4 W. 8f 8.^4.4. QGibson, C. J. It is a rule without any exception that a landlord cannot distrain goods which are in. the custody of the law, though for the rent of a single year he is protected by statute. When it is sold, however, the landlord will have priority of satisfaction, as in the case of any other execution, but he cannot proceed by distress without committing a trespass against the officers.] 58. A distress cannot be made, unless some definite rent is reserved. Thus, a landlord cannot distrain where the agreement is that the lessee shall pay no rent, provided he makes certain repairs, and the value of the repairs is uncertain. 4.347. ZP.R.ZO. 59. It has been the usage of Pennsylvania, both before and since the act of 1772, to impound a distress on the premises, and there to appraise and sell it, agreeably to the stat. 11 Geo. 3, c. 19, though the -clause of the statute which gives this power is not contained in the act of Assembly. 2 D. 68. 60. The construction of the stat. % W. fy M. c. 5, that the distrainer may leave the distress on the premises for the Jive days mentioned in the act, but becomes a .trespasser after that time, will hold under the act of 1772, which follows the words of the statute. 2 D. 68. 61 . A landlord who, after distress, sells the goods of his tenant, without having caused them to be appraised, and without giving notice of sale, according to the act of 1772, becomes a trespasser ab initio, (from the beginning,) and is liable to the action of trespass quare clausum /regit, 14 S. ^ R. 399. 62. Under the act of 1772, the landlord has no right to follow the goods, if the rent was not in arrear at the time the goods were removed. 12 S. ^ R. 217. 63. A mere removal of goods, in the daytime, without the knowledge of the landlord, but without any other evidence of fraud, is not sufficient, under the act of 1772, to authorize the landlord to follow the goods and distrain upon them within thirty days. Ibid. 217. 64. An open and notorious removal of goods in the daytime, although no notice was given to the landlord, is not fraudulent within the meaning of the act of 25th March, 1825. 1 Ash. 125. 65. An affidavit by a landlord that he had "just cause to suspect and did believe" that the tenant was removing his goods, for the purpose of defrauding him of his remedy by distress, is not sufficient under the act of 25th March, 1825. Ibid. 66. The right of pursuing and seizing goods within thirty days after removal is confined to the goods ofrthe lessee from whom the rent is really due ; and does LANDLORD AND TENANT. 377 not extend to the goods of a stranger, which can only be distrained while they are on the premises. 1 D. 440. 67. A landlord who enters the house of a stranger to search for the goods of his tenant, fraudulently and clandestinely carried off, is a trespasser, and liable as such. 13 -S. Sf R. 417. 68. Proceedings to recover Possession. When there is a lease from year to year, notice to quit must be given three months before the expiration of the year ; and if not so given, the moment another year commences, the tenant has a right to hold until the expiration of it. (1 5inw. 354, in note. 2 j3*A. 131.) But when the lease is for one or more years certain, or for any fixed definite period, to expire at a certain time, there is no occasion for notice before the expiration of the time, because its expiration is as well known to the tenant as to the landlord ; and if the tenant does not then remove, the landlord may, after its expiration, give him notice to quit, and, three months after such notice, may apply to two justices and proceed under this section against him. 4 R. 126. [And per Gibson, J., if a tenant remain after the end of his term, he is not liable for a whole subsequent year's rent. (8^. fy R. 469.)] A parol notice to quit is sufficient. (5 Esp. 196.) No notice is necessary to be given to the under- tenants. (5 B. ^ P. 330.) Notice to one of two joint tenants in possession, is sufficient. (5 Ssp. 196.) In a written notice, a misdescription of the premises, which cannot mislead the tenant, is immaterial. (4 Esp. 185.) In all cases, leaving the notice at the dwelling-house of the tenant is sufficient. (4 T. R. 465.) 69. A notice to quit, served by a landlord on the assignee of his tenant, who is in possession of the premises, is within the letter and spirit of the act of Assembly of 21st March, 1772, and is a legal notice. 2 Jsh. 131. 70. A clause in a lease agreeing to surrender possession, " without further notice^' will dispense with the three months' notice required to sustain proceedings under the act of 1772 ; but if such agreement of waiver is not found by the inquest, its finding will be quashed on certiorari. 1 Jones, 472. 71. The summons under the landlord and tenant act may be made returnable, be- fore the fourth day from its date. 15 S. Sf R. 43. 72. Where the justices of, the peace do not allow a reasonable time to procuve testimony, the court will set aside their proceedings. 1 Y. 49. 73. The proceedings are bad, if it do not appear from the record that the term was ended. 5 S. SfR. 174. 74. An inquisition is not good that leaves the necessary facts uncertain, and to be made out by conjecture or inference ; they should be clearly and positively found. Ibid. 75. A landlord is not entitled to the summary remedy given by the act of the 25th March, 1825, unless the tenant has actually rerrumed from the premises, without leaving sufficient property to pay the rent, or giving security ; it is not sufficient that he has removed goods from the premises, if he continues in possession. 1 R. 73. 1 Ash. 98. And the record must show that the defendant was a lessee fw years. Geisenberg v. Cerf, Com. Pleas, Phila'., January 4, 1850. Bright. Dig. 306. 76. To support an inquisition by two justices under the act of 25th March, 1825, every requisite of the act must be substantially complied with, and the necessary fects should be clearly and positively found. 1 Ash. 127. 77. Although under the act of Assembly of April 3, 1830, the justices are bound to ascertain the rent due and in arrear, and to endorse the same on the writ of pos- session, yet they cannot issue an execution against the tenant to coerce the payment of the sum so ascertained. 1 Ash. 230. 78. No proof is necessary to found a proceeding by a landlord' to dispossess his tenant, other than the affidavit of the landlord himself. ^ W. Sf S. 120. 79. Vse and Occupation. To support the action for use and occupation, a pro- mise, either express or implied, must be shown, and proof given that the defendant came into possession by permission of the plaintiff; or at least, such strong circum- stances must be shown as would preclude the idea of an adversary claim. 1 Y. 576. 80. Where the defendant, a tenant for years, left the premises in the- middle of the year, and sent the key to the landlord, who gave notice to the tenant that he should continue to hold him liable for the rent, and then the landlord took posses- 378 LANDLORD AND TENANT. sion, and offered the house to let, it was held that he might recover from the de'- fendant, in an action for use and occupation, the amount of rent that accrued be- tween the time of his leaving, and the time it was again rented. 6 Wh. 500. OllJiienbije of £atms, reioliBe to Canblorbs anil Senonte. APPENDIX No. 1. FORM op NOTICE TO QUIT, UNDER THE 12TH SECTION OF THE ACT OF 1772. To 0. D. Philadelphia, November 30, 1843. SIR,— You are hereby notified and required to quit, remove from, and deliver up to me, possession of the premises situated on the [north] side of [Chesmut] street, [No, 173,] be- tween [Third] and [Fourth] streets, in the [city]- of [Philadelphia,] (which you now hold as tenant under me,) at the end of your current term, to wit, on the [tenth] day of [June,] A. D. [1844,] as I desire to have again and repossess the same. Yours respectfully, (Signed) A. B. [It may be prudent for the person who serves a copy of this notice to compare it care- fully, and note, on the back of the notice.She day on which it was served, so that, if re- quired, he may be ready to prove these facts.] APPENDIX No. 2. FORM OF A COMPLAINT, UNDER THE ACT OF 1772. To G. H. and H. J., two of the aldermen of the city of Philadelphia. THE complaint of [A. B.] most respectfliUy sets forth, that he is owner of a certain [house] with the appurtenances, situate [on the north side of Chestnut street. No. 173, be- tween Third and Fourth streets, in the city of Philadelphia,] and was in peaceable posses- sion thereof [on the tenth day of June, A. D. 1842,] when he demised the said premises to a certain [C. D.] for the full term of [two years,] at the [annual] rent of [five hundred dollars,] which said term is fully ended. (8) That he the said [A. B.] being desirous, upon the determination of the said term, to have again and re-possess [his] said estate, for that purpose did on the [thirtieth] day of [November] last past, demand, and require the said [C. D.] to remove from and leave the same, and that the said [C. D.] hath hitherto refused and still doth refuse to ''comply therewith'; that three months having elapsed since the service of the said notice, [he] makes this [his] complaint, that such proceed- ings may be taken by you, as are directed by the act of Assembly in such case made and provided. (Signed,) A. B. Sworn and subscribed before us, this [tenth day of June, 1844.] G. H., Alderman. APPENDIX No. 3. H. J., Alderman. FORM OF VENIRE, UNDER tHE ACT OF 1772. CITF OF PHTLWELPHU, ss. gje ffiommontoealti) ot SPennssltenfa, To the Sheriff of Philadelphia county, greeting : WHEREAS, complaint and due proof were this day made before [G. H.,] Esq. and [H. J.,] Esq., two bf Our [Aldermen of the city of Philadelphia,] that [A. B.,] Precept on the [tenth] day of [June,] 1842, was quietly and peaceably possessed of a [cei- to tain house with the appurtenances, situate on the north side of Chestnut street, No. Sheriff. 173, between Third and Fourth streets, in the city of Philadelphia,] and being so thereof possessed on the same day and year aforesaid, did demise the said premises to one [C. D.] for the term of [two years] then next ensuing, at the [annual] rent of [five hundred dollars,] and that the said [C. D.] by virtue of the said demise entered in possession of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended, and the said [A. B.,] being desirous, upon the said determination of the said term, to have again and re-possess the said (8) In case of an assignee, add here the words — And the said A. B., after making the demise aforesaid, to wit, on the [first] day of [July,] A. D. 1842, by his certain deed of conveyance, duly made and executed, bearing date the same day and year, for the consideration therein mentioned, did grant, bargain and sell the premises aforesaid, with the appurtenances, unto the said J, K.i his neirs and assigns, and the said J. K. being desirous to have again and re-possess the said premises, so as aforesaid demised by the said A. B. to the said C. D., tor that purpose did, &c. LANDLORD AND TENANT. " 379 premises, for that purpose did on the [thirteenth] day of [November,] 1843, demand of and require the said [C. D.] to remove from and leave the same, and that the said [C. D.] hath hitherto refused and still doth refuse to comply with the said de- mana and requisition to remove from and leave the said premises. Therefore we command you, that you summon twelve substantial freeholders of your bailiwick, so thafthfey he and appear before our said [aldermen] at [Evans's. George street,] on [Tuesday,] the [fourteenth] day of [June,] 1844, at [four] o'clock in the [after- noon] of that day, and that you also summon the said [C. D.] so that he be and appear before our said [aldermen,] and the said freeholders, at the day and place • , last aforesaid, to show-cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid [A. B.] ac- cording to the form and effect of the act of the General Assembly in such case made and provided. And this you shall nowise omit. . And have you then and there this writ. Witness the said [G. H.,1 Esquire, and FH. J.,] Esquire, at the [city of Philadelphia]] aforesaid, the [tenthj day of [June,T 1844. G. H., Alderman. [seal.] H. J., Alderman. [seal.] Return of the Sheriff. — ^To the justices within named I do respectfully certify that I have summoned twelve substantial freeholders, and have also summoned the within named C. D. to be and appear at the day and place mentioned, as by the within precept I am commanded. ^^ D.F., Sheriff. Oath of^Juror under the Act of 1772. — You do swear [or affirm] that you will well and truly inqVe of and concerning the premises in this [the foregoing] precept mentioned, and assess such damages, if any, as the complainant hath sustained thereby. So help you God. APPENDIX No. 4. FORM OF INaUISITION, UNDER THE ACT OF 1772. INQUISITION taken ^at [the house of Thomas Evans, in George street, in the city of Philadelphia,] on the [fourteenth] day of [June,] in the year one thousand eight hundred and rforty-four,] before [G. H.,] Esq., and [H. J.,] Esq., two of our [aldermen of the city of Phi- ladelphia,] by the oaths of [K. L., M. N., &c.,] and the solemn affirmations of [E. R., Z. Y.,] twelve substantial freeholders of the said [city,] who upon their oaths and affirmations respec- tively do say, that [A. B.] on the [tenth] day of [June,], in the year eighteen hundred and [forty-two,] was quietly and peaceably possessed of a [certain house with the appurtenances, situate on the north side of Chestnut street, No. 173, between Third and Fourth streets, in the city of Philadelphiay] and being so thereof possessed on the same day and year last aforesaid, did demise the said premises to one [C. D.,] for the term of [two years] then next ensuing, at the [annual] rent of [five hundred dollars,] and that the said [CD.] by virtue of the said demise entered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended, and the said [A. B.] being desirous, upon the said determination of the said term., to have again and re-possess the said, premises, for that purpose did, on the [thirtieth] day of [November, 1843,] demand of and require the said [C. D.] to remove from and leave the same, and that the said [C. D.] hath hitherto refused, and still doth re- fuse to comply with the said demand and requisition to remove from and leave the said pre- mises. And the said freeholders do assess damages against the said [C. D.] for the unj\^t detention of the said demised premises at [one hundred and forty dollars,] besides all costs of suit. Whereupon, it is considered by the said [aldermen,] that restitution of the said demised premises be made to the said [A. B.,] and that he recover of the said [C. D.] his damages aforesaid, together with the costs of suit, amounting to [forty dollars. J In testi- mony whereof as well the said aldermen as the said freeholders have hereunto set their hands and seals, the day and year first above written, at the city of Philadelphia aforesaid. G. H., Alderman. [seal.] H. J., Alderman. [seal.] A., B., C, D., E., F. and [seals.] G., H,, L, J., K., and L. APPENDIX No. 5. FORM OF WARRANT TO DELIVER POSSESSION, UNDER THE ACT OF 1772. CITY OF PHILADELPHIA, ss. ^■iz fflommontoealti) ot 39cttn«2lbanfa, To the Sheriff of Philadelphia county, greeting: WHEREAS, due proof hath been made before [G. H.] and [H. J.,] Esquires, two of the [aldermen of the city of Philadelphia,] and twelve substantial freeholders, summoned fot that purpose, that [A. B. did, on the tenth day of June, A.'D. 1843, demise to C. D. a cer- 380 LANDLORD AND TENANT. tain house situate on the north side of Chestnut street, No. 173, between Third and Fourth streets, in the city of Philadelphia, for the term of two years, at the annual rent of five hundred dollars,] and that the said [C. D.,] by virtue of the said demise, entered into pos- session of the said premises, and held them during the said term, and is still possessed thereof; and that the said term is fully ended, and that the said [A. B.,] being desirous upon the determination of the said term to have again and repossess the said premises, for that -purpose did, on the [thirtieth] day of [November,] 1843, demand of and require the said [C. D.] to remove from and leave the same, and that the said [C. D.] hath hitherto refused, and still doth refuse to comply therewith; all which premises being duly found by the said [aldermen] and freeholders, according to the form of the act of General Assembly in such case made and provided : We, therefore, command you, the said sheriff forthwith to deliver to the said [A. B.] full possession of the demised premises aforesaid. And we also com- mand you, that of the goods and chattels of the said [C. D.,] in your bailiwick, you cause to be levied as well the sum of [one hundred and forty dollars,] which to the said [A. B.] was awarded for [his] damages sustained by the unjust detention of the premises, as [forty dollars] for [his] costs and charges, by [him] in and about [his] suit in that behalf ex- pended, whereof the said [C. D.] is convict. And hereof fail not Witness the said [G. H.] and [H. J.,] at Philadelphia, in the county aforesaid, the [fourteenth] day of [June,] A. D. one thousand eight hundred and [forty-four.] G. H., Alderman. [seal.]' H. J., Alderman. [seal.] APPENDIX No. 6. FORM OF RECORD OF PROCEEDINGS, UNDER THE ACT OF 1772/ -# BE IT REMEMBERED, that on the [fourteenth] day of [June,] in the yearono thousand eight hundred and [forty-four,] at [Philadelphia city,] due proof was made before us, [G. H.,] Esq., and [H. J.,] Esq., two of our [aldermen,] that [A. B.,] on the [tenth] day of [June,] in the yeair eighteen hundred and [forty-two,] was quietly and peaceably possessed of a [certain house with the appurtenances, situate Record, on the north side of Chestnut street. No. 173, between Third and Fourth streets, in the city of Philadelphia, and being so thereof possessed on the same day and year last aforesaid, did demise the said premises to one [C. D.,] for the term of [tiro years,] then next ensuing, at the [annual] rent of [five hundred dollars,] and that the said [CD.] by virtue of the said demise entered into possession of the said demised premises, and held the same ddring the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended, and the said [A. B.] being desirous, upon the said determination of the said term, to have again and" repossess the said premises, for that purpose did, on the [thirtieth] day of [November, 1841,] demand of and require the said [C. D.] to remove from and leave the same, and that the said [C. D.] hath hitherto refused and still doth refuse to comply with the said demand and requisition to remove from and leave the said premises. Whereupon the said [A. B.] then, to wit, on the said [fourteenth] day of [June,] eighteen hundred and [forty-four,] at the [city] aforesaid, prayed us the said [aldermen,] that a due remedy in that behalf be provided for liim, according to the form of the act of the General Assembly of the state of Pennsylvania in such case made and f|rovided, upon which proof and complaint the sheriff of the county of [Philadelphia] is comilianded that he summon twelve substantial freeholders of his bailiwick, so that they be and appear before us, the said [aldermen,] at the [house of [Jacob I. Moyer, No. 193, Chestnut street,] on [Tuesday,] the [eighteenth] day of [June, 1844,] at [four] o'clock in the [afternoon] of that day, and that he also summon the said [0. D.,] so that he be and appear before us, the said [aldermen,] and the said freeholders, at the day and place last aforesaid, to show cause, if any he has, why restitution of the po8session«of the said demised premises should net be forthwith made to the aforesaid [A. B.] Afterwards, to wit, on the said [eighteenth] day of [June, 1844,] at the house aforesaid, [D. F.,] sheriff of tho county of [Phi- ladelphia,] appears before us, the said [aldermen,] and returns, that by virtue of the said warrant to him directed, he had summoned twelve substantial freeholders, to wit : [G. H., R. L., M. N., Z. Y., &c.,] and had also summoned the said [C. D.] to be and appear at this day and place, as by the said warrant he was commanded, and the said freeholders, being called, appear, and are severally sworn or affirmed. And the said [A. B.] also appears, and we, the said [aldermen,] and the aforesaid freeholders, proceed to hear and examine the proofs and allegations offered by the said parties, and do find that the said [A. B.,] on the [tenth] day of [June, 1842,] was quietly and peaceably possessed of a [certain house with the appurtenances, situate on the north side of Chestnut street. No. 173, between Third and Fourth streets, in the city of Philadelphia,] and being so thereof possessed on the same day and year last aforesaid, did demise the said premises to the said [C. D.,] for the term of [two years] then next ensuing, at the [annual] rent of [five hundred dollars,] LANDLORD AND TENANT. 381 and that the said [C. D.,] by virtue of the said demise, entered into possession of the said demised premises; and held the same during the said term, and is still possessed ' of the same, and that the said term for which the said premises were demised is fullr ended, and the said [A. B.] being desirous, upon the said determination of the said term, to have again and repossess the said premises, for that purpose did, on the [thirtieth] day of [November, 1843,] demand of and require the said [C. D.] to re- move from and leave the same, and that the said [C. D.] hath hitherto refused, and still doth refuse, to comply with the said demand and requisition to remove from and leave the said premises, and the said freeholders assess the sum of [one hundred and forty dollars] for the damages of the said [A. B.,] occasioned by the unjust detention of the said demised premises. Therefore, it is considered and adjudged by us, the said [aldermen,] that the said [A. B.] shall and do recover and have of the said [C. D.] as well the said sum of [one hundred and forty dollars,] for his damages aforesaid, as [forty dollars] for his reasonable costs by him expended in and about this suit in this behalf, concerning which the premises aforesaid we do make this our record. In testimony whereof, we, the said [aldermen,] to this our record have set our hands and seals, at tlie [city] of [Philadelphia,] aforesaid, this [eighteenth] day of [June,] one thousand eight hundred and [forty-four.] ' G. H., Alderman. .[seal.] H. J., Alderman. [seal.] APPENDIX No. 7. SUMMONS TO A THIRD PARTY CLAIMING TITLE. CITY OF PHILADELPHIA, ss. E^e CommontDealt!) o{ $cnn!(slbania, To the Sheriff of Philadelphia County, greeting : WHEREAS, complaint and due proof have been made before [G. H.] and [H. J.,] two of our aldermen of the city of Philadelphia, that [A. B.,] on the [tenth] day of [June,] in the year one thousand eight hundred and [forty-two,] was quietly and peaceably possessed of a certain house with the appurtenances, situate [on the north side of Chestnut street, No. 17,3, between Third and Fourth streets, in the city of Philadelphia ;] and being so thereof possessed, on the same day and year aforesaid did demise the ^aid preniises to one [C. D.,] forvthe term- of two years then next ensuing, at the yearly rent of five hundred dollars, lawful money, payable fpr the same ; and that the said [C. D.,] by virtue of the said de- mise, entered into possession of the said demised premises, with the appurtenances, and held the same during the said term, and is still possessed thereof; and that the said term for which the said premises were demised is fully ended ; and that the said [A; B.,] being desirous, upon the determination of the said lease, to have again and repossess his said estate, so demised, for that purpose, did, on the [thirtieth] day of [November, A. D. 1843,] require the said [C. D.] to remove from and leave the same, and that the said [C. D.] hath hitherto refused, and still doth refuse, to comply therewith. And whereas, the said [C. D.,] being dqly summoned, doth appear before our said aldermen, and doth allege that the title to the said premises is disputed and claimed by [O. P., of in the county of Philadelphia,] in virtue of a right or title accrued or happening since the commencement of the lease so as aforesaid made to him the said C. D., by virtue of a deed made by the said A. B. to the said O. P. You are therefore commanded to summon the said [0. P.] to appear before our said aldermen, at the house of [Jacob J- Moyer, No. 193 Chestnut street, in the city aforesaid,] on the [twenty-fourth] day of [June, A. D. 1844, at eleven o'clock in the forenoon,] to declare on oath or affirmation, to be by our said aldermen administered, that he verily believes that he is entitled to the premises in dispute ; and with one or more sufficient sureties, to become bound by recognisance in the sum of one hundred pounds, to the said [A. B.,] his heirs and assigns, to prosecute his claim at the next court of Common Pleas, to be held for the said county (if to him it shall be expedient). Make return hereof according to Jaw. . Witness the said [G. H.] and [H. J.,] at the city of Philadelphia aforesaid, the [eigh- teenth] day of [June,] in the year of our Lord one thousand eight hundred and [forty-four.] G. H. [seal.] H. J. [SEAL.I APPENDIX No. 8. COPT OF A NOTICE TO BB SERVED ON THE TENANT, UNDER THE ACT OV APRIL 3, 1830- Philadelphia, Oeiober 9th, 1844. YOU are hereby notified to quit the premises situate in. [Dock] street, No. [34,] which I have leased to you, reserving rent — "or pay and satisfy the rent due and in arrear, being 382 LANDLORD AND TENANT. $28 t'v'j, which amount was due on the first day of June, 1844, and is hereby demanded,— (you having neglected or refused to pay the amount so reserved, as often as the same has grown dujB, according to the terms of our contract — and there being no goods on the premises adequate to pay the rent so reserved, except such articles as are exempt from levy and sale by the laws of this Commonwealth,) within thirty days from the date hereof, or I shall pro- ceed against you as the law directs. Yours, &c. A. B. ToC.D. [The person who serves this notice should compare the copy with the original, and note, in writing, the day on which he serves it, so that he may be ready, if called upon, to prove these facts.] APPENDIX No. 9. COPY OF THE OATH OK AFFIRMATION, 17NDER THE ACT OF APRIL 3d, 1830. CITY OF PHILADELPHIA, ss. On the [tenth] day of [May,] A. D. 1844, personally appeared before us, two of the aldermen of the city of Philadelphia, [A. B.,] who being [duly sworn] according to law, saith, that he has demised the premises situated in [Walnut street, No. 356,] to a certain [C. D.,] reserving the rent ; that the said rent is in arrear and unpaid — that there is not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempt from levy and sale, and that the said lessee has (after being notified to quit the said premises within fifteen days from the date of said notice) refused to render and deliver up possession of the said premises. (Signed.) A. B. Sworn to and acknowledged before G. H., Alderman. H. J., Alderman. APPENDIX No. 10. FORM OF A SUMMONS, UNDER THE ACT OF APRIL 3d, 1830. CITY OF PHILADELPHIA, ss. EJe fflommontocall!) of SPenns^lbania, To any Constable of the said City, greeting : WHEREAS, complaint on oath or affirmation hath been made befoTe [G. H.] and [H. J.,] two of our aldermen of said city, by [A. B.] that he had demised a certain tenement, situated in [Walnut street. No. 356,] to [C. D.] reserving rent; which rent is in arrear and unpaid — ^that there are not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempt from levy and sale ; and that the said lessee has, after being notified according to law, refused to remove and deliver up pos- session of the said premises. You are, tbeirefoVe, commanded to summon the said [CD.] to be and appear before oiir said aldermen, at the office of [G. H., No. 20 North Fourth street,] the [tenth] day of [May,] 1844, at ten o'clock, A. M., to answer the said com- plaint. In witness whereof, the said aldermen have hereunto set their hands and seals, the [sixth] day of [May,] 1844. G. H., Alderman. [seal.] H. J., Alderman. [seal.] APPENDIX No. 11. COPT OP A WRIT OP POSSESSION, UNDER THE ACT OF APRIL 3, 1830. CITY OF PHILADELPHIA, ss. STiie ffiommonlnealt!) at ^ennsslbanfa, To any Constable of the said City : WHEREAS, complaint and due proof was made on the [tenth] day of [May,] A. D. 1844, before [G. H.] and [H. J.,] two of our aldermen for the said city, that [A. B.] rented to [C. D.] a certain tenement in the said city, the rent whereof " is in arrear and unpaid ; that there is not sufficient goods and chattels on the premises to pay or satisfy the said rent, except such as are by law exempt from levy or sale, and that the said lessee has, after being notified," according to law, " refused to remove and re-deliver up possession of the pre- mises," according to the act of General Assembly in such cases made and provided ; and whereon the said aldermen, in consideration of the premises, did enter judgment against said lessee, that said premises should be delivered up to the lessor forthwith, and did also ascertain the rent, in arrear, to amount to the sum of [fifty-six] dollars and [twenty] cents. Therefore we command you, the said constable, judgment having been entered by our said aldermen against the said [C. D.,] "forthwith to deliver actual possession of the said pre- mises to [A. B.,] the lessor," and we also command you, that you levy the costs, endorsed .Hereon, on the goods and chattels of the said [C. D.] And hereof fail not; and of yow LANDLORD AND TENANT. 383 proceedings herein, together ^ith this writ, make return to our said aldermen, " within ten days," to wit, on or before the [36th] day of [May,] A. D. 1844. Witness our said alder- men, at Philadelphia, who have hereunto set their hands and seals, this [sixteenth] day of [May,] A. D. 1844. G. II., Alderman. [seal.] At the office of G. H. H. J., Alderman. [seal.] APPENDIX No. 12. DOCKET ENTRY lijfDER THE ACT OF APRIL 3, 1830. ; A. B.T Landlord and tenant case, before aldermen G. H. and H. J. May 6, 1844. Thu vs. C plaintiff appears and complains, on oath, that he demised to the defendant a tene- C. D. J ment, No. 356 Walnut street, in the city of Philadelphia, reserving rent -^ that the rent thereof is due and unpaid — that there are not on the said premises sufficient goods, &c., exempted from levy — and that the said defendant has, after being noti- fied according to law, neglected or refused to deliver up said premises. Same day, summons issued, returnable the 10th inst., at 5 P. M. J. W., constable. Returned, served on oath. May 10, 1844, parties appear. A. C. sworn for plaintiff. Where- upon, on hearing, the said aldermen find that the above complaint is in all parti' culars just and true, and enter judgment against the said defendant, that he shall deliver actual possession of the premises to the plaintiff, and they ascertain that the rent due to the plaintiff by the defendant is $45.28. May 15, writ of possession, issued. Returnable the 25th. Possession given May 18. J. W., Constable. If the defendant shall desire to appeal, security may be taken in the following form : — May 14, 1844. Defendant appeals. I am held in $500, as absolute security, conditioned for the payment of all costs that have or may accrue in case this judgment shall be affirmed ; and also for the payment of all rent that has accrued, or raay accrue up to the time of final judgment. / ■ (Signed,) T. G., township. May 20, Transcript for the defendant. APPENDIX NO. 13. copy OP THE landlord's oath, under the second section op the act of 1825. CITY OF PHILJDELPHU, ss. ON the day of ■ , A. D. 1844, personally appeared [A. B.] before the subscribers, two of the aldermen in and folr the said city, who being duly sworn, [or affirmed,] doth depose and say, that he demised the premises situated in the said city, in [Walnut] street, No. 356, [by the quarter,] to a certain [C. D.,] who has removed therefrom — that there are not goods enough on the premises to pay a quarter's rent — that he refuses to give up posses- sion or security for three months' rent, the same having been demanded more than five days previous to the date of this deposition. (Signed,) A. B. Sworn and subscribed, May , A. D. 1844, hefore G. H., Alderman. H. J., Alderman. APPENDIX No. 14. FORM OF A PRECEPT, UNDER THE ACT OF 1825. CITY OF PHILADELBHM, ss. SCSe ffiommontoealtj o£ 33cnti0]»U)anfa, To any Constable of the said City, greeting : WHEREAS, complaint on oath hath been made before [G. H. and H. J.,] two of the aldermen of said city, byf [A. B.,] that on the [third] day of [.luly,] in the year 184U, a tene- ment situated in said city, in {Walnut street, No. 356,] was rented [by the quarter,] to [C. D.], who has removed therefrom,— that there are not goods enough on the premises to pay a quarter's rent,— and that he refuses to give up possession, or security for three months' rent, the same having been demanded five days previous to the date hereof. You are, therefore, commanded to summon the said [C. D.] to be and appear before our said aldermen, at the office of [G. H., No. 20 North Fourth street,] on the [fourteenth] day of [May,] A. D. 1845, at [four] o'clock, P. M., to answer the complaint of said [A. B:J In witness whereof, the said alcfermen have hereunto set their hands and seals, the rninthl day of [May,] A. D. 1845, at Philadelphia aforesaid. G. H., Alderman, [seal.] H. J., Alderman, [seal] 384 LAND-MARKS. APPENDIX, No. 15. , FORM OP A WRIT OP POSSESSION, UNDER THE ACT OF 1825. CITY OF PHILADELPAU, m. 2[1)e tiff appears and makes complaint, on oath, that he demised the premises situate C. D. ) No. 356 Walnut street, in the said city, by the quarter, to the defendant, who has removed therefrom, — that there are not sufficient goods on the premises to pay a quarter's rent, — that the defendant refuses to give up possession, or security for three months' rent, which he has demanded more than five days previously. Same day, summons issued, returnable the J4th instant, at 4 P. M. S. S., con- stable, returned on oath, served on defendant, by exhibiting to him the original summons, and informing him of the contents thereof. May 14, 1844, parties appear. X. Y. sworn for plaintiff. After hearing, the said aldermen find that the above complaint is in all respects just and true, and enter judgment against the defendant, that he shall forthwith deliver up possession of the said premises to the plaintifif. Same day, writ of possession issued. S. S., constable, returned : Possession given to plaintiff. -9c« 0/1700, Purd.lVi. Dunl.37. Sect. I. For the greater security and certainty of the boundaries of land, it u enacted, That no person in this province, or counties annexed, shall cut, fell, alter or remove any certain bounded tree, or other allowed land-mark, to the wrong of his neighbour, or any other person, under the penalty of any sum not less than ten pounds. The 27 section of the act of March 20, 1810, gives to the justices of peace jurisdiction to issue warrants and bind over or commit offenders against this law. They are to be bound to appear before the court of duarter Sessions of the pro- per county, COPY OF A WARRANT. O COUNTY, «s. Slie Commontuealtl) of Jjcnnssltonnrci, To the Constable of the Township Of S ,in the County of D , greeting: WHEREAS J. L., of the township of S , in the county of D , yeoman, hath this day made oath before J." P, Esquire, one of our justices of the peace in and for said county, that J. D. of the said township, tailor, did cut down and remove a certain black oak LAW FORMS, &e. 385 tree, [or "did remove a certain heap of stones," as the case may be,]being an allowed land- mark oetween the land of the said J. L. and the land of the said J. D. These are therefore to require you to take the said J. D., and bring him before the said J. P. forthwith, to an- swer the complaint. Witness the said J. P. at S township aforesaid, tne sixth day of July, in the vear of our Lord one thousand eight hundred and foity-four- " J. P., Justice of Poav'e. [seal.] OR A SYSTEM OF POPULAR CONVEYANCING; ARTICLES OF AGREEMENT. ARTICLES 07 OOFABTNERSHIP. DEEDS AND LEASES. DOWER, AND RELEASE OC. WILLS. POWERS OF ATTORNEY. PETITIONS FOR ROADS, BRIDGES, See. EMDRACINQ PROCEEDINGS. REPORT OF VIEWERS. PROMISSORY NOTES. ACKNOWLEDGMENTS AND PROOFS OF DEEDS. BONDS AND MORTGAGES. BILLS OF SALE. DIVORCE, PETITIONS FOR. DUE BILLS, RECEIPTS, &c. •^nd sucli other Forms as are most frequentli/ required ,• selected from the best authorities, and of the most approved kinds. 1. Definition of an affidavit. 2. Affidavit to an account. 3. Shorter form of do. 4. General form of articles of agreement. 5. Agreement for the purchase of a rever- sion after a lease of years. 6. Covenants which may be inserted. Not to commit waste, or grant new leases. If counsel do not approve title, &C. Not to be responsible for the arrears of former tenants. 7. Agreement for making a quantity of slioes. fl. Agreement to bear equal charges in a lawsuit to be brought for the recovery of an pstate. 9. Agreement between several to pay their proportion of expenses of defending a law- suit expected to be brought against them for the recovery of lands. 10. General form of articles of copartner- ship. U. Additional articles which may be in- serted, or rejected, as parties may agree. Not to trust any one whom the co- partner shall forbid. Not to release any debt without con- sent. Not to be bound, or endorse bills. Neither party to assign his interest. Parties to draw quarterly. Principal clerk to receive, &c. The voice of the majority of partners shall bind the whole. 12. Agreement to continue copartnership by endorsement. 13. Dissolution of partnership. 14. Notices of dissolution. 15. Assignment. 16. General form of assignment. 17. A general form of assignment by en- dorsement on the back of any instrument,, whether agreement, bond, bill of sale, &c. 18. Assignment of moneys due upon ac- counts. 19. Assignment of a note to a creditor, in satisfaction of his debt ; but, if more than the debt is received, the note being for more, the ■ surplus to be returned to the assignor. 20. Bill of sale of chattels. 21. Common form of bill of sale. 22. Definition of a bond. 23. Common form of bond and warrant. 24. Bond to indemnify one who endorsed a promissory note for another. 25. Bond to save harmless from paying rent, where the title is in question. 26. Condition of a bond for paying an an- nuity during life. 27. Refunding bond. 28. To indemnify against a bastard child. 29. Bonds, how to be assigned. 30. Assignment of bond by endorsement. 31. Short form for the same. 32. Sliort form of assignment of a bond, where the assignor is liable, 33. Do. do. where the assignor is not liable. 34. Definition of deeds. 35. Common form of a deed. 36. Ground-rent deed. 37. Forms of the acknowledgments of. deeds. " for one person. " by letter of attorney. " by husband and wife. 38. Forms of proofs of execution of deedk Another form of proof. 39. How deeds tnay be proven and ac- knowledged. 386 LAW FORMS, &c. 40. Attestations when there are inteilinea- tions. " by a blind person. " by a deaf and dumb. 41. Receipt on deed. 42. Grant of right of way. 43. Grantee covenants to keep the way in repair. 44. Dower. 45. Release of dower. 46. Divorce. 47. Petitions for divorce from the bonds of jnatrimony. " for desertion. " for intolerable treatment. " for adultery. " for divorce from bed and board, and for alimony. " for desertion. " for intolerable treatment. " for adultery. 48. Definition of a lease. 49. Common form of lease. 50. Lease made by tenants in common. 51. Lessor covenants to sell the inheritance to the lessee on request. 52. Special form, with authority in certain ' cases, to enter judgment in ejectment. 53. A proviso waiving the benefit of the acts "exempting goods from distress for rent. 54. Assignment of a lease. 55. Short form of do. ■ 56. Letters of attorney. . 57. General form of letter of attorney. 58. General letter of substitution. 59. To receive money on a bond. 60. To receive dividends on stock. 61. To convey lands. 62. To acknowledge a deed. 63. To acknowledge satisfaction on a mort- gage. 64. To lease lands for terms not exceeding itwenty years. 65. Revocation of a letter of attorney. . 66. Powers of attorney to attorneys at law. Power of attorney by defendant. " " by plaintiff to insti- tute suit. Power of attorney by plaintiff to conduct suit already brought. 67. Petition for tavern license. 68. Liens. 69. Form of mechanics' lien. 70. Mortgage, definition of. 71. Form of a mortgage. 72. Acsignment of a mortgage., 73. Form of manumission of a slave. 74. Another form of do. 75. Roads. 76. Petition for a public road. 77. Order of court on do. 78. Return of jury. - ' 79. Petition for damages. 80. Order of court thereon. 81. Petition for private roads. 82. Petition for gates on a private road. 83. Petition for vacating a road. 84. Report of viewers. 85. Order of court. 86. Petition for annulling proceedings had before the road is opened. 87. Report of viewers. 88. Petition to vacate a state road supplied by a turnpike. 89. Petition for a review. 90. Petition for a road on county line. 91. Report thereon. 92. Petition for a county bridge. 93. Report thereon. 94. Petition for bridge on county line. 95. Due bill. 96. Promissory notes, various forms. 97. Receipts of different kinds. 98. Last will and testament, definition of, and who may make. 99. Forms of wills and testaments. 100. Preambles to wills. 101. Will, &c., appointing guardians for children. 102. Will ordering estates to be appraised and divided. 1. AN AFFIDAVIT. Is an oath in writing, sworn before some judge or officer of a court, or other per- ■son who hath authority to administer such oaths, to evince the truth of certain facts therein contained. 3 Bl. Com. 304. 2. AFFIDAVIT TO AN ACCOUNT. COUNTY OF PHILADELFHU, sis. A. B. personally appears before the subscriber, one of the justices of the peace in and for the said county, and being duly sworn [or affirmed] doth depose and say, that the above and foregoing account has been faithfully made out from the books of original entries of C. D. ; which original entries were made by this deponent, at the time the goods therein charged were sold,, and delivered to E. P., which sale and delivery was made by this depo- nent i and deponent further saith, that the prices charged for the said goods are the prices for which they were sold, and which the said E. F. at the time agreed to pay ; and that the said LAW FORMS, &c. 387 account is in all particulars just and correct, and the credits given to the said E. F. are to the best of deponent's knowledge and belief all the credits to which the said E. F. is entitled, and deponent truly believes that the balance stated, viz. $413.25, is justly due from the said E. F. to the said C. D. (Signed,) A. B. Sworn and subscribed July 4th, 1844, before G. H., justice of the peace. 3. A SHORTER FORM. COUNTY OF PHILADELPHIA, ss. A. B. heing duly sworn [or affirmed] doth dei)ose and say, the above account has been . faithfully made out from the original entries ; it is just and correct, and is now due and unpaid. (Signed,) A. B. Sworn and subscribed, July 5th, 1844, before C. G., justice of the peace. 4. A GENERAL FORM OF AN ARTICLE OF AGREEMENT made the day of , in the year of our Lord one thousand eight hundred and , between A. B., of the city of P , machinist, of the one part, and C. D., of the county of P , farmer, of the other part: Witness, that the said A. B., for the consideration hereinafter mentioned, hath agreed, and hereby doth for himself, his heirs, executors, and administrators, covenant and agree, to and with the said C. D., his heirs and assigns, that he, the said A. B., will on or before the day of , A. D. 1844i at the proper cost and charges of the said A. B. [or C. D.] by good and law- ful conveyance and assurance, grant, convey and assure unto the said C. D., his heirs and assigns, in fee-simple, with general (or special) warranty, all that messuage, &c.j (here de- scribe the property.) In consideration whereof the said C. D., for himself, his heirs, execu- tors and administrators, doth hereby covenant and agree, to and with the said A. B., his heirs and assigns, that he the said 0. D. will, on the execution and delivery of the convey- ance and assurance as aforesaid, well and truly pay, or cause to be paid, unto the said A. B., his executors, administrators or assigns, the sum of dollars, in manner following; — setting out the mode of payment. [Insert if desired.] "To the true and faithful performance of the several covenants and agreements aforesaid, the parties aforesaid do hereby respectively bind themselves, their heirs, executors and administrators, each to the other, his executors, administrators, and assigns, in the penal sum of dollars." In witness whereof the said parties have here- unto set their hands and seals, A. B. [seal.] Signed, sealed, and delivered in the presence of us, 7 C. D. [seal.] G. H. and I. J. 5 AGREEMENT FOR THE PURCHASE OF A REVERSION AFTER A LEASE FOR VEARS. ALL that, &0. situated, &c. now in the tenure or occupation of E. F., which he holds by lease from the said A. B. (determinable on the day of , &e., A. D. ,) and the reversion or reversions and remainders of all and singular, the said premises and every part and parcel thereof, and all the rent or rents and other profits arising there- from ; and, also, all the estate, right,, title, interest, inheritance, expectancy, use, property, claim, and demands, whatsoever of him the said A. B., of, in and to, the said premises and any part thereof, &e 6. COVENANTS, &C. WHICH MAY BE INSERTED, NOT TO COMMIT WASTE OR GRANT NEW LEASES. " THAT the said A. B. shall not, nor will not, in the mean time, cut down any timber or trees, or commit any waste or spoil whatsoever in, or upon, the premises or any part thereof, nor shall or will giant any new leases of the premises or any part thereof without the privity or consent of the said C. D. or his heirs or assignees." ff counsel do not approve title, ^c, " AND it is agreed that if the counsel of the said C. D. shall not approve of the title of the said A. B. to the said premises, this agreement shall be void." Not re^onsiblefor the Arrears of former Tenant. "AND it is agreed between the said parties that the said C. D. shall be let into posses- sion of the premises on or before the day of next ; but that all arrears of rent and other profits arising from the said premises, which shall at that time be due and payable, shall belong to the said A. B., his heirs or assigns, and that he shall have full liberty to receive the same." 7. AN AGREEMENT FOR MAKING A QUANTITY OF SHOES. ARTICLES &c. between A. B., of, &c. of the one part, and C. D., &c., of the other 388 LAW FORMS, &c. part. The said A. B. for the consideration hereinafter mentioned, doth covenant that he will, at his own charge, make for the said C. D. 1000 pairs of men's shoes of the same quality of leather and goodness as, and in all other respects according to, a pattern agreed between the said parties, and of a size from 10 to 13, and deliver the same to the said C. D., at .within months from the date hereof. And the said C. D. m consideration thereof doth covenant to pay to the said A. B. at the rate of per pair, after s months from the delivery of the said shoes as aforesaid. And tl is agreed that if any of the said shoes shall not be made agreeably to the said pattern, and for that reason shall be rejected by the said C. D., he, the said A. B., shall take back such as shall be so refused, and de- liver the said C. D. the like quantity of the goodness and make according to the pattern aforesaid. In witness, &c. [An agreement for any other work to be done, or services to be rendered, may be made by writing a similar agreement, varying the kind and quantity of work to be done and the nature of the services to be rendered.] 8. AN AGREEMENT TO BEAR EQUAL CHARGES IN A LAWSUIT TO BE BROUGHT FOR THE RECOVERY OF AN ESTATE. ARTICLES, &c. between, &c. Whereas, [recite the grounds of the contemplated ac- tion or actions] by reason whereof a suit or suits is, or are, to be commenced. And, where- as, it is agreed by the said parties that every of them shall pay his share of the costs and charges thereof. Now, these articles witness that the said A. B., CD., &c. &c., and every of them, covenant with each other, that they and every of them, their respective, &c., shall pay their respective equal shares of all the costs and damages' of all and every such action and actions as are, or at any time hereafter shall or may be, brought by or against them, or any or either of them. In witness, &c. 9. AN AGREEMENT BETWEEN SEVERAL TO PAY THEIR PROPORTION OF THE EX- PENSES OF DEFENDING A LAWSUIT EXPECTED TO BE BROUGHT AGAINST THEM FOR THE RECOVERY OF LANDS. ARTICLES OF AGREEMENT between A. B. of, &c. of the first part, C. D. of, &c. of the second part, D. E., of &c. of the third part. Whereas, L. M. and N. O.are pos- sessed of a certain tract of land situated in, &c., and pretend that the bounds thereof extend upon some of the respective lands of the said A. B., C. D., and E. F., by reason whereof a suit is likely to be commenced. Now, the said A. B., C. D., and E. F., and every of them, do hereby covenant with each other that they, the said A. B., C. D., and E. F., and every of them and their assigns respectively, shall and will pay their respective equal shares of all costs and damages as shall arise by reason of any such suits as shall at any time hereafter be brought against them, or any or either of them. In witness, &c. 10. GENERAL FORM OF ARTICLES OF COPARTNERSHIP. ARTICLES OF AGREEMENT, made and concluded on the first day of January, in the year of our Lord one thousand eight hundred and forty-five, between A.' B. of R , in the county of B and state of Pennsylvania, of the one part, and C. D., of the town- ship of A , in the county and state aforesaid, of the other part. . The said parties have agreed, and by these presents do agree to associate themselves in the art and trade of buying, selling, vending and retailing all sorts of wares, goods and com- modities belongingto the trade or business of merchandise ; which said copartnership shall continue from the date of these presents, for and during, and to the full end and term of ten years next ensuing. \ And to that end and.purpose, he, the said A. B., hath, the day of the date of these presents, delivered in, as stock, the sum of one thousand dollars, and the said C. D. the sum of one thousand dollars, to be used, laid out and employed in common, between them, for the management of the said business to their general advantage. And it is hereby agreed between the said parties, each for himself respectively, and for his own particular part, and for his respective executors and administrators, doth covenant, pro mise and agree, each with the other of them, his respective executors and administrators, in manner and form following, that is to say: — that they shall not, nor will not, at any time hereafter, use, exercise or follow the said trad© or any other, during the said term, to their private benefit and advantage; but shall and will, from time to time, and at all times, during the said term, (if they shall so long live,) do their best endeavours, to the utmost of their skill and ability, for their mutual advantage with the stock, as aforesaid, and the in- crease thereof. And, also, that they shall and will, during the said term, discharge equally between them the rent of the premises which they shall rent or hire for the managing of the trade or business aforesaid : And that all such profit, gain and increase as shall arise, by reason of the said joint busi- ness, shall be equally and proportionably divided between them, share and share alike. And LAW FORMS,, &c. 389 also ttiat all losses that shall happen in the said business, by bad debts, ill commodities, or otherwise, shall be paid and borne equally between them. And fiirther, it is agreed between them, that there shall be kept, during the said term and joint business, perfect, just and true books of accounts, wherein each of the said copartners shall enter and Set down, as well all the money by him received and expiended, in and about the said business, as also all commodities, and merchandises by them bought and sold b'y reason and on account of the said copartnership, and all other matters and thirigs in any wise belonging or appertaining thereto, so that either of them may, at any time, have free access thereto. And also, that the said copartners, once in three months, or oftener if need shall require, • upon the request of any one of them, shall make and render each to the other, or to the exe- cutors and administrators of each other, a true and perfect accoimt of all profits and increase by them made, and pf all losses sustained ; and also of all payments, receipts, disbursements, and all other things, whatsoever, by them made, received and disbursed, acted, done and suffered in the said copartnership ; and the accounts so made shall and will clear, adjust, pay and deliver, each unto the other, at the time of making such account, their equal shares of the profits so made as aforesaid. And, at the end of the said term of ten years, or other sooner determination of these pre- sents, (be it by the death of one of the said parties or otherwise,) they, the said copartners, each to the other, or in case of the death of either of them, the surviving parly to the execu- tors or administrators of the party deceased, shall, and will, make a true and final account of all things, as aforesaid, and in all things well and truly adjust the same. And also, that upon the making of such accounts all and every, the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, shall be equally parted and divided between them, the said copartners, their executors or administrators, shareiand share alike. In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year above written. A. B. fsEAL.T Sealed and delivered in 7 C. D, j^seal.J the presence of j E. F., G. H. 11. ADDITIONAL ARTICLES, WHICH MAY BE INSERTED', OR REJECTED, AS THE PARTIES MAY AGREE. Not to trust any one whom the copartner ihall-forbid. AND that neither of the said parties shall sell on credit any goods, wares, or merchandise, belonging to the said joint trade, to any person or persons, after notice in writing from the other of the said parties, that such person or persons are not to be credited or trusted. Not to release any debt without consent, AND that neither of the said parties shall, without the consent of the other, release or compound any debtor demand, due or 'coming to them, on account of their said copartner- ship, except for so much as shall be actually received and brought into the stock or cash account of the said partnership. Nat to be boifnd, or endorse Bills. AND that neither of the said parties shall, during this copartnership, without the consent of the other, enter into any deed, covenant, bond, or judgment, or become bound as bail or surety, or give any note, or accept or endorse any bill of exchange, for himself and partner, with or for any person whatsoever, without the consent of the other first had and obtained. Neither party to assign his Interest. AND it is agreed between the said parties, that neither of them shall, without the con- sent of the other, obtained in writing, sell or assign his share or interest in the said joint trade,, to any person or persons whatsoever. Parties to draw Quarterly. THAT it shall be lawful for each of them to take out of the cash of the joint stock, the sum of quarterly, to his own use, the same to be charged on account; arid neither of them shall take any further sum for his own separate iise, without the consant of the other, in writing. .Snd any such further sum, taken with such consent, shall draw interest after the rate of six per centum; and shall be payable, together With the interest due, within days, after notice in writing given by the other of the said parties. Principal Clerk to be Receiver General, ^c. THAT the principal clerk, for the time being, shall be the general receiver of all' the money belonging to the said joint trade, and shall thereout pay ajl demands ordered by the 390 LAW FORMS, &c, said parties ; and shall, from time to time, pay the surplus cash to such banker as the said partners shall nominate. Thai the voice cfihe majority of the partners shall bind the whole, THAT in all matters respecting the general transactions of the partnership, and the man- agement of the business, the wish and opinion of any three (the number making a majority) of the partners shall govern and be binding on the other partners. 12. AN AGREEMENT TO CONTINUE A PARTNERSHIP BY ENDORSEMENT. WE, the within-named A. B. and C. D., do by these presents endorse, declare, and mu- tually covenant and agree, unto and with each other, his and their executors and adminis- trators, to continue the joint trade and partnership within mentioned, for the further term of years, if both of us shall so long live, to be accounted from the expiration of the years within limited for the continuance of the same, with the joint stock, and under and subject to the several covenants and agreements within expressed and contained. In Witness, &c. 13. DISSOLUTION OF PARTNERSHIP. WHEREAS, by agreement made the first day of January, A. D. 1841, A. B. and C. D. did enter into copartnership, for the purpose of carrying on the trade and business of mer- chandising for the term of ten years. Jind whereas, the said C. D. wishing to discontinue and decline the joint partnership entered into as aforesaid, he, the.said C. D., hath proposed to his said partner, A. B., a dis- solution, to which proposition the said A. B. hath assented. The parties, therefore, mutu- ally consent and agree by these presents, that the partnership heretofore existing between them, be this day dissolved, and it is accordingly dissolved. And it is further stipulated and agreed mutually between them, that A. B. do take the entire stock of goods and mer- chandise now on hand, belonging to the partnership,- at a valuation to be set upon the same by three competent persons, mutually appointed to value the same. And that he also have power to collect the debts now due to the partnership, and to recover all, and any, part of the same in the name of the firm, by suits at law or otherwise. And that, finally, the said A. B. do pay over to the said C. D., or his legal representatives, the full share and profits which shall appear to be due to the said C. D. in six months from the date hereof. Witness their hands and seals the day of , Anno Domini, 1842. Sealed and delivered in 7 A. B. fsEAE."] the presence of 5 CD. rsEAL.I E. F. '- -' G. H. _ 14. NOTICE OF DISSOLUTION. Notice of dissolution should be, published immediately after that event takes place, in the public papers, and special notice sent to every correspondent, and every other person who has had any dealings with the firm. If these precautions are neglected, one partner may be held liable for the acts of another, by those who have not had notice of a dissolution. Limited partnerships, for certain kinds of business, are allowed and regulated by an act of Assembly passed 21st March, 1836. Pwd. 921. Dunl. 702. The following notices will answer the purpose : Notice is hereby given, that the partnership lately subsisting between A. B. and C. D., of &c., under the firm of B. & D., expired on the day of ; [or was dissolved on the day of by mutual consent, according to circumstances.] All debts owing to the said partnership are to be received by said A.B., and all demands on the said partnership are to be presented to him for payment ; or, A. B. is authorized to settle all debts due to and by the company. r^, B,] [C. D.] Where one of the partners only leaves the firm, &c. : Notice is hereby given, that the partnership between A. B., C. D., and E. F. was dis- solved on. the day of so far as relates to the said E. F. All debts due to the said partnership are to be paid, and those due from the same discharged, at where the busi- ness will be continued by the said A. B. and C. D., under the firm of B. & D. TThe last words may be varied according to circumstances."] 15. ASSIGNMENT. An assignment is the transferring and setting over to another of some riffht, title, or interest. 2 Bl Com. 480. ^ LAW FORMS, &e. 391 An assignment must be recorded within thirty days after date; it must convey all the property of the debtor, and contain no reservation for his benefit. 6 Binn. 338. 3 P. R. 91, 92. 3 W. 198. 2 Wh. 240. 8 Ibid. 347. 4 Ibid. 399. 16. A GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS. THIS INDENTURE, made the [tenth] day of [March,] Anno Domini one thousand eight hundred and [forty-four,] between [A. B., of the county of , merchant,] of the first part, and [C. D., of the same place, blacksmith,] of the second part. Whereas, the said [A. B.] is entitled to and possessed of certain estate, but owing to his misfortunes in business is unable to pay his various creditors, but is desirous of distributing said estate among them according to their several equities. Now this indenture witnesseth, that the said [A. B.,] as well for and in consideration of the premises, as of the sum of one dollar to [him] in hand well and truly paid by the said [C. D.,] at and before the sealing and de- livery of these presents, the receipt whereof is hereby acknowledged, has granted, bargain- ed, sold, assigned, transferred, aiid set over, and by these presents does grant, bargain, sell, assign, transfer, and set over, unto the said [C. D.,] his heirs, executors, administrators, and assigns, all the estate, real and personal, of him, the said [A. B.,] and all his rights, credits, and expectancies, of whatsoever nature or kind, and whether situate, lying, and be- ing due and owing in the state of Pennsylvania or elsewhere, to have and to hold the same, with the appurtenances, unto the said [C. D.,] his heirs, executors, administrators, and as- signs, [to and for] their only use and behoof for ever. In trust, nevertheless, and to, for, and upon, the trusts, intents, and purposes, hereinafter set forth, to wit : that the said party of the second part shall, by public or private sale, at [his] discretion, and by collections, suits, or compromises, likewise at Qhis] discretion, convert all the assigned property, as speedily as may be, into cash, and -as the proceeds are, from time to tiiiie, realized, (after paying all the expenses of this trust, including the cost of this instrument,) pay the credit- ors of the said [A. B."] their respective demands. And should any part or portion of said trust, property, or funds, remain, after fully complying with the trusts aforesaid, then the said party of the second part shall deliver over and re-convey the same unto the said [A. B.,] his heirs, executors, administrators, and assigns. And the more efifectaally to enable the said party of the second part to accomplish and perform the trust aforesaid, the said [A. B.] doth hereby nominate, constitute, and appoint, the s^id party of the second part his true and lawful attorney, 'for him, and in his name, to ask, demand, sue for, recover, and receive, all such sum and sums of money, debts, goods, wares, dues, accounts, and other demands whatsoever, which are now due and payable to him, or which are now due and may here- after become payable. Giving and granting unto his said attorney, by these presents, his full and entire power, strength, and authority, in and about the premises, to have, use, and take all lawful ways and means, for the purposes aforesaid, and upon the receipt of any such debts, dues, and sums of money, acquittances and other sufficient discharges to make, seal, and deliver. In testimony whereof, the said parties have hereunto set their hands and seals, the day and year first above written. [A. B.] [seal.] Sealed and delivered in 7 the presence of us, 5 W. G. H. L. [I accept the trust. C. D.] CITY OF FHILABELPHU, ss. This [tenth] day of [March,] A. D. [1844,] personally appeared before me, (one of the aldermen of the city of Philadelphia,) the within named [A. B.,] and acknowledged the within written indenture to be, his act and deed, and desired that the same might be recorded as such. In testimony whereof, I have hereunto set my hand and seal, the day and year last above written. J. B., Alderman, [seal.] 17. A GENERAL FORM OF ASSIGNMENT, BY ENDORSEMENT, ON THE BACK OF ANY INSTRTTMENT, WHETHER AGREEMENT, BOND, BILL OF SALE, &C. &C. KNOW ALL MEN by these presents, that I, the within named A. B., in consideration of five dollars to me paid by O. D., have assigned to the said C. D., and his assigns, all my interest in the within written instrument, and every clause, article, or thing, therein con- tained: (this short power of attorney may be inserted where proper,) and I constitute the said C. D. my attorney in my name, but to his own use, to take all legal measures which may be proper, for the complete recovery and enjoyment of the assigned premises, with power of substitution. Witness my hand and seal, this, &c. 18. OF MONEYS DUE UPON ACCOUNT. KNOW ALL MEN by these presents, that I, A. B., of , in consideration of the sum 392 LAW FORMS, &c. ef to me in hand paidby C. D., of , do hereby assign and set over unto the said C. D., to his own proper use, without any account to be given for the same, the sum of and all other sum and sums of money is are repiaining due, and payable upon, or by virtue of the annexed account, and all my right, title, interest, and demand, in and to the same : And do give and grant unto the said C. D., full power and authority to demand and receive the same to his own use, and, upon receipt thereof, to give discharges for the same or any part thereof: And I, the said A. B., do hereby covenant and agree to and with the said t. D., the said sum of is justly due and owing, and that I have notlreceived or discharged the same or any part thereof. In witness, &c. 19. AN ASSIGNMENT OF A NOTE TO A CREDITOR, IN SATISFACTION OF HIS DEBT, BUT IF MORE THAN THE DEBT IS RECEIVED THE NOTE BEING FOR MORE THE SURPLUS TO BE RETURNED TO THE ASSIGNOR. ' AN INDENTURE, &c., between A. B., of , of the one part, and 0. D., of , of the other part: Whereas, E. F., of, &o., by his promissory note, under his hand, bearing date, &c., d^d promise to pay to the said A. B., by the name of F. A. B., or order, the sum of, &c., months after date, for value received, as by the same note may appear; and whereas the said sum of is still due and owing to the said A. B. : Now this indenture witness- eth, that the said A. B., for and in consideration of the sum of five-shillings, to him in hand paid, &c., hath granted, &c., unto the said C. D., his, &c., the said note, and all the money now due thereupon, with all interest accrued and grown due, or which shall accrue, &c., thereupon ; and all his the said A. B.'s right, &c., to have, &c., unto the said C. D., his, &c., to the uses, intents, and purposes following, to wit : it is covenanted, granted, and agreed, by and between the said parties to these presents, for themselves respectively, and for their several and respective executors and administrators, that out of the money to be recovered and received on the said note, the said C. D. shall and may retain, in his own hands, the sum of which is now justly due and owing to him from the said A. B., if he shall recover and receive so much as, &c., {the amount of the debt,) of the said note, &c.; and if he shall not recover so much as, &c., then it shall and may be lawful for him to retain what sum he shall recover and receive less than, &c., in his own hands, towards satisfaction and payment of the said sum of so above mentioned to be due from the said A. B. to the said C. D. And next after the said sum of so due as aforesaid, shall be fully recovered and received by, and retained in the^hands of, the said C. D., it shall be lawfiil for, and it is agreed by and between the said A. B. and C. D., that the said C. D. may retain in his hands the full charges and expenses which he, the said CD., shall have been put to, in the recovery or receiving the said sum of {the amount due on the note,) or such part thereof as he shall receive, and then return to the said A. B., his, &c., the residue of the said sum of which he, the said C. D., shall receive over and above the amount of the said sum of so due to the said C. D., and his charges as above, [^dd a ktter of attorney and cove- nants that he has not released nor will release the note, nor dismarge any action^ 20. BILL OF SALE OF CHATTELS. Possession is essential to a lien upon corporeal chattels. 5 Binn. 398. Delivery may be made in a very slight manner, as where one buys goods in a room, the receipt of the key is sufficient. 1 Y. 529. 17 S.-SrR. 99. . An agreement to sell an unfinished chattel, to be delivered at a future time, does not pass a present property. 4 E. 260. 4 W. 121. 5 Ibid. 201. 21. COMMON FORM OF BILL OF SALE. KNOW ALL MEN by these presents, that I, A. B., of , merchant, for and in consi- deration of the sum of dollars, to me in hand paid, by C. D., of the same place, at and before the ensealing and delivery of these presents, the receipt whereof is hereby ac- knowledged, have bargained, sold, and delivered, and by these presents do bargain, sell,' and deliver, unto the said CD. [here insert the goods sold.] To have and to hold the said [goods] unto the said C D., nis executors, administrators, and assigns, to his and their own proper use, benefit, and behoof for ever. And I, the said A. B., my heirs, executors, and administrators, the bargained premises unto the said C. D., his executors, administrators and assigns, from and against all person and persons whomsoever, shall and will warrant and for ever defend by these presents. In witness whereof, &c. 32. DEFINITION OF A BOND. A bond is a deed or obligatory instrument in writing, whereby one doth bind him- self and his heirs, executors, and administrators, to another to pay a sum of money, or to do some other act, as to make a release, surrender ati estate for quiet enjoy- ment, to stand to an award, save harmless, perform a will, or the like. It contains LAW FORMS, &c. 393 an dbligation ■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 personally binding. 2 Bl, Com. 339. / A bond may be executed with or without warrant to confess judgment. 23. COMMON FORM OF A BOND AND WARRANT. KNOW ALL MEN by these presents, that [L A. B., of the city of P , merchant, am] held and firmly bound unto [C. D., of the city of P— ^— , in the county of P- , gro- cer, in the sum of [ dollars] lawful money of the United States of America, to be paid to the said [C. D., his] certain attorney, exeeutorsi administrators or assigns. To which payment well and truly to be made, [I bind myself, my] heirs, executors and admi- nistrators, firmly by these presents. Sealed with [my] seal. Dated the day of , in llie year of our Lord one thousand eight hundred and forty-four. The Condition of this Obligation is such. That if the above bounden [A. B. his] lieirs, executors, administrators, or any of them, shall and do well and truly pay, or cause \o be paid unto the above-named [C. D., his] certain attorney, executors, administrators or issigns, the just sum of [ dollars, such as aforesaid, within one year from the date Jereof, with lawful interest for the same,] without any fraud or further delay, then the above sbligation to be void, or else to be and remain in full force and virtue. Sealed and delivered in 7 [A. B.] [seal.] the presence pi ^ [E. F.] [G.H.] fo [E. F.] Esquire, attorney of the court of Common Pleas, at [Philadelphia] in the county of [Philadelphia] in the state of [Pennsylvania] or to any other attorney of the said court, . or of any other court there or elsewhere. WHEREAS [I, A. B., of the city of P , merchant,] in and by a certain obligation bearing even date herewith, do stand bound unto [C. D., of the county of P , glrocer,] in the sum of [ dollars] lawful money of the United States of America, conditioned for the payment of [ dollars, such as aforesaid, within one year from the date thereof, with lawful interest for the same.] These are to desire and authorize yon, or any of you, _ to appear for [me, my] heirs, executors or administrators, in the said court or elsewhere, in " an action of debt there or elsewhra-e brought, or to be brought, against [me, my] heirs, executors or administrators, at the suit of the said [C. D., his] executors, administrators or assigns, on the said obligation, as of any term or time past, present, or any other subsequent termor time there or elsewhere to be held, and confess judgment thereupon against [me, my] heirs, executors or administrators, for the sum of [ dollars] lawful money of the United States of America, debt, besides costs of suit, by non sum informdtu^, nihil dicit, or otherwise, as to you shall seem meet ; and for your or any of your so doing, this shall be your sufficient warrant. And [I] do hereby, for [myself, my] heirs, executors and adminis- trators, remise, release and for ever quit claim unto the said [C. D., his] certain attorney, executors, administrators, and assigns, all and all manner of error and errors, misprisions, misentries, defects and imperfections whatever in the entering of the said judgment, or any process or proceedings thereon, or thereto, or any wise touching or concerning the same. In witness whereof, have hereunto set hand and seal the day of , in the year of our Lord one thousand eight hundred and forty-four. [A. B. ] [seal.] Sealed and delivered in the presence of [E. F.] [G. H.] Bonds should be so written and executed that the warrant can be detached from the bond for the purpose of being filed in the proper office, when the obligee or assignee of the bond desires to enter judgment against the obligor. 84. A BOND TO INDEMNIFY ONE WHO ENDORSED A ' PROMISSORY NOTE FOR ANOTHER. KNOW ALL, &c. Whereas the above bound A., by bill or note under his hand, dated the, &c., hath promised to pay unto C, or order, six months after date, the sum of with interest thereon till paid : and whereas the above-named B., at the request, and for the qnly debt of the said A., hath endorsed the said recited bill or note, and is thereby become charge- able with and for payment of the said sura of and interest, at the time therein men- tioned, as by the said bill and the endorsement thereupon may appear : Now the condition, &c., that if the said A., his exiecutors or administrators, do, and shall, well and truly pay the said sum of for which the said note is so given, and the interest thereof, on the day 394 LAW FORMS, &c. of pajfmisnt therein mentioned, and in full discharge thereof, and therefrnm, and, from all actions, suits, charges, payments, and damages by reason thereof, shall and do, at all times, well and sufficiently, save harmless, and keep indemnified the said B., his heirs, executors and administrators, and every of them, then, &c. 25. A BOND TO SAVE HARMLESS FROM PAYING RENT WHERE THE TITLE IS IN QUESTION. THE CONDITION, &c.: That whereas there is a suit depending between the above bound R. C, and others, touching the right and interest in the now dwelling house of the above named J. F., situated, &c. : and whereas the said J. F. hath agreed to pay a rent of the same house to the said R. C, which is to pay the sum of yearly, as the same shall grow due : if, therefore, the said R. C, his, &c., do, and shall well and truly pay, or cause to be paid, unto the said J. F., his executors, administrators or assigns, all such rent, sum, and sums of money, charges, and damages, whatsoever, as shall, by due proceedings in law, be adjudged or decreed against him, the said J. F., his, &c., and all other costs and damages whatsoever, which he, the said J. F., shall sustain, or be at, by reason of any action, suit or forfeiture whatsoever, which shall or may happen, or be to- the said J. F.,his executors, administrators or assigns, by reason of paying the said rent, or any part thereof, to the said R. C, his executors, administrators or assigns, then, &c. 38. THE CONDITION OF A BOND FOR THE PAYMENT OF AN ANNUITY DURING LIFE. WHEREAS the above bounden T. T., on the day of the date of the above written obli- gation, hath had and received to his own use, of and from the above named J. P., the sum of , the receipt whereof he doth hereby acknowledge, in consideration whereof he, the said T. T., hath agreed to pay unto the said J. P. one annuity, or clear yearly sum of during his natural life, to be paid in manner hereinafter mentioned : — Now, the condition of this obligation is such, that if the above bounden J. P., his heirs, executors or administra- tors, or any of them, d o and shall yearly, and every year, during the natural life of the above named J. P., well and truly pay, or cause to be paid, to him, the said J. P., or his assigns, the clear yearly sum of , lawful money, by quarterly payments, on the days hereinafter limited and appointed ; therefore, (that is to say,) the first day of, &c. &c., in each year, by even and equal portions, the first payment thereof to begin and be made on next ensu- ing, the date of the above written obligation ; then this obligation shall be void and of no eirect : but if default shall appear to be made of, or in, any of the said quarterly payments, or any part thereof, on any or either of the said days on which the same ought to be paid as aforesaid, then the same shall stand and remain in full force and virtue. ^T. REFUNDING BOND. KNOW ALL MEN by these presents, that we, A. B., of , legatee under the tes- tament and last will of R. S., deceased, and C. D., of , are held and firmly bound unto E. F. and G. H., executors of the said R. S. deceased, in the sum of dollars, to be paid to the said E. F. and G. H., or to their certain attorney, executors, administrators or assigns, to which payment well and truly to be made, we bind ourselves and each of us by himself, for and in the whole, our heirs, executors, and administrators, and every of them, firmly by these presents. Sealed with our seals, and dated the Whereas the said R. S., by his said last will and testament, bearing date the day of last past, did give and bequeath unto the said A. B., a certain legacy of doUare, £or one equal part of his personal estate after the payment of his debts (1)] as by the said in part recited will, duly proved and remaining in the register's office at appears. Now the condition of this obligation is such, that if any part or the whole of the said legacy shall, at any time after payment thereof to the said A. B., appear to be wanting to discharge any debt or debts, legacy or legacies, which the said executors shall not have other assets to pay, then and in such case if the said A. B., his heirs, executors and ad- ministrators, shall and do return the said legacy or such part thereof as shall be necessary for the payment of the said debts, or the payment of a proportional part of the said legacies, then this obligation shall be void and of none effect, or else shall be and remain in full force and virtue. [Distributees and legatees are required to give security, to be approved of by the Orphan's Court having jurisdiction, before they are entitled to their distributive shares or legacies. Act of 1834, sect. 45 & 52. Purd. 479, 480, Bunl 594, 595.] 28. TO THE COUNTY FOR A BASTARD CHILD. KNOW ALL MEN by these presents,' that we, A. B. and F. G., of the township ot B^, m the county of S , and state of Pennsylvania, are held and firmly bound unto (I) In this latter case the bond must be given in double the sum which the person shall think himself entitled to. • i-ciouu ana. LAW FORMS, &c. 395 L. M. and N. 0., overseers of the poor of the county aforesaid, for the time being, in the just and full sum of three'hundred dollars, lawful money of the United States, to be paid to the said overseers of the poor, or to either of them, or either of their certain attorneys, successors or assigns ; to virhich payment, well and truly to be made, we bind ourselves jointly and severally, our heirs, executors and administrators, and every of them, finally by these presents. Sealed with our seals, and dated the day of , in the year, &c. The condition of this obligation is such, that whereas M. W. of the township of T , in the county aforesaid, single woman, is now pregnant with child, [or hath lately been de- livered of a male bastard child, in the township aforesaid,] and hath charged the said A. B. with being the father thereof. Iftherefitre the said A. B. shall and do from time to time, and at all limes hereafter, well and sufficiently save, defend, keep harmless, and indemnify, the said L. M. and N. 0., and their successors, overseers of the poor of the said county for the time being, and also all the inhabitants thereof, of and from all expenses, costs, charges and damages whatsoever which shall, or may hereafter happen or accrue, for or by reason or means of the birth, maintenance, education, or bringing up of the said child, [or of such child or children wherewith the said M. W. now goeth,] and of and from all actions, suits, troubles and demands whatsoever, touching or conqerning the same, then this obligation to be void, or else to be and remain in full force and virtue. 39. BONDS, HOW TO BE ASSIGNED. Bonds may be assigned ; the assignment must be under seal, and in the presence of two or more witnesses. Assignee may sue in his own name. Assignor's power to release ceases after assignment. Act of May 28, 1715. Purd, 144. Dunl. 60. The assignee takes the bond subject to every defalcation which the obligor had against the obligee at the time of the assignment, or notice of the assignment. 1 D. 23. 2 Ibid. 49. 2 F. 33. 5 Binn. 232. 4 S. ^ B. 177. 1 S. 277. 5 W. 151. The assignee should give notice of the assignment to the obhgor. 2 JD. 49, 50. A lapse of twenty years creates a presumption of payment, if no interest has been piid in the mean time ; biit if the period be shorter than twenty years, the presump- tion must be supported by circumstances. 2 fV. C. C. Rep. 323. 9 S. ^ B. 379. 1 r. 344, 584. 30. ASSIGNMENT OF A BOND BY ENDORSEMENT. KNOW ALL MEN by these presents, that I, the within named A. B., for and in con- sideration of the sum of to me in hand paid by C. D., of , at or before the sealing of these presents, the receipt whereof is hereby acknowledged, have granted bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over unto the said C. D., his executors, administrators or assigns, the with-" in written bond or obligation, and the sum of mentioned in the condition thereof, to- gether with all interest due and to grow due for the same, and all my right, title, interest, claim and demand whatsoever, of, in, and to the same. And I authorize the said C. D. in my name to demand, sue for, receive, have, hold, and enjoy the said sum of and interest, to his own use absolutely for ever. In witness, &c, A. B. [seal.] 31. A SHORT FORM FOR THE SAME. I, A. B., do hereby assign and set over all my right, title, claim, interest, property and demand whatsoever, in and to the within bond [or bill] unto C. D., for value received. Witness my hand and seal, the day of A. B. [seal.] 32. SHORT FORM WHERE THE ASSIGNOR IS LIABLE. FOB VALUE RECEIVED I do assign and set over the within obligation, and all moneys due thereon, unto A. B., his executors, administrators or assigns, hereby guarantee- ing the payment thereof, in case of default being made by the within named C. D. Wit- ness my hand and seal, &c. 33. WHERE THE ASSIGNOR IS NOT LIABLE. FOR VALUE RECEIVED, I do assign and set over the within obligation, and all nioneys due thereon, unto A. B. , his executors, administrators or assigns, not holding myself liable for the payment of the same ; the losses, if any, and the recovery thereof, to be wholly at the risk of the said A. B. Witness my hand and seal, &c. [There must be two subscribing vntneases to either of the foregoing assignmentaj^fo authorize the assignee to bring suit in his own name : if the bond be not assigned in the presence of two subscribing witnesses, as prescribed by the actof Assembly, suit must be brought in the name of the original obligee, for the use of the assignee.] 396 LAW FORMS, &c. 34. DEFINITION OP DEEDS. A deed is an instrument in writing on parchment, or paper, and under seal, containing some conveyance, contract, bargain, or agreement, between the parties thereto ; and it consists of three principal points, writing, sealing and delivering. 3 Bl. Com. 295. It should be recorded within six months. Act of May^ 38, 1715, sect. 8. Purd. 293. Dunl. 64. 2 Bim. 497. 4 Binn. 140. ~ 35. COMMON FORM OF A DEED. THIS INDENTURE, made the day of , in the year of our Lord one thousand eight hundred and , between J. D., of the city of P , grocer, and C, his wife, of the one part, and E. F., of the , in the county of P , turijer, of the other part, wil- nesseth, that the said J. D., and C, his wife, for and in consideration of the sum of' • ' ' dollars, lawful money of the United States of America, unto them well and truly paid by flie said E. F., at and before the sealing and delivery of these presents, the reeeij)t whereof is hereby acknowledged, have granted, bargained, sold, aliened; enfeoffed, released and'con- firmed, and by these presents do grant, bargain, sell, alien, enfeoff, release and confirm, unto the said E. F., and to his heirs and assigns, all that certain two-story brick messuage or tenement, and lot or piece of ground thereunto belonging, situate on the side of street, in the said city of P , beginning at the distance of feet from the side; of street, and extending thence ' in front or breadth on street feet, and continuing of that breadth in length or depth' feet, bounded on the by ground now or late of A. B., on the by a lot late of the said A. B., on the by a certain small lot, and on the- by the said street ; being the same premises which S. R., of the said city, grocer, and W., his wife, by indenture liearing date the ' day of , Anno Domini one thousand eight hundred and ; intended to be'recorded, {or, recorded in the office for recording deeds, &c., for the city and county of Philadelphia, in deed book A. M., No. , page , &c. as the case may be,) granted and conveyed to the said J. D., in fee, subject to the payu^ient of a yearly rent, charge, or sum of Spanish silver milled dollars, in half-yearly payments, -without deduction for taxes, &c., as by the said recited in- denture fully appears; together with all and singular the improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and de- mand whatsoever of them the said J. D., and W., his vsife, iri law, equity or otherwise howsoever, of, in and to the same and every part thereof; to have and to hold the said two- Story brick messuage or tenement, and described lot of ground, hereditaments and premises hereby granted or mentioned, and intended so to be, with the appurtenances, unto the said E. F., his heirs and assigns, to and for the only proper vise and behoof of the said E. F., his heirs and assigns, for ever ; under and subject to the payment of the aforesaid yearly rent, charge, or sum of dollars, in half-yearly payments, as the same shall hereafter grow due and payable, clear of taxes, &c. ; and the said J. D., for himself, his-heirs, executors and administrators, doth by these presents covenant and agree to and with the said E. F., his heirs and assigns, that he the said J. D., and his heirs, all and singular, the hereditaments and premises hereby granted with the appurtenances unto the said E. F., his heirs and assigns, against him the said J. D. and his heirs, and against all and every other person or persons whomsoever lawfully claiming, or to claim the same by, from or under him, them, or any of them, shall and will subject as aforesaid, warrant, and for ever defend, by these presents. In witness whereof, the said parties have hereunto interchangeably set their hands and seals, dated the day and year first above written. 36. GROUND-RENT DEED. THIS INDENTURE, made the [sixth] day of [.Tune,] in the year of our Lord one thou- sand eight hundred and [forty-four,] between [A. B., of the county of Bucks, state of Penn- sylvania, farmer,] of the one part, and [C. D., of the connty of Dauphin, of the same state, tanner,] of the other part, witnesseth, that the said [A. B.,] as well for and in consideration of the sum of one dollar, lawful money, unto [him,] at or before the sealing and delivery hereof, by the said TC. D.] well and truly paid, the receipt whereof is hereby acknowledged, as of the payment of the yearly rent and taxes, and performance of the covenants and agree- ments hereinafter mentioned, which, on the part of the said [C. D.,] his heirs and assigns, is and are to be paid and performed, [have] granted, bargained, sold, aliened, enfeoffed, re- leased, and confirmed, and by these presents [do] grant, bargain, sell, alien, enfeoff, re- lease, and confirm, unto the said [C. D.,], all that certain lot or piece of ground [Here describe correctly the property.] Together with all and singular the [improvements,] ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever, LAW FORMS, &c. 397 unto the said hereby granted premises belonging, or m any wise appertaining, and the re- versions and remainders thereof, to have and to hold the said described lot or piece of ground, hpeditaraents, and premises, hereby granted, with the appurtenances, unto tlie said [C. D.,] his heirs and assigns, to the only proper use and behoof of the said [C. D.,] his heirs and assigns, for ever, yielding and paying therefor and thereout, unto the said [A. B.,] his heirs and assigns, the yearly rent or sum of [twenty dollars,] lawful silver money of the United States of America, each dollar weighing seventeen pennyweights and six grains at least, in [half] yearly payments, on the [first] day of [January and July,] in every year hereafter, for ever, without any deduction, defalcation, or abatement for any taxes, charges, or assess- ments whatsoever, to be assessed, as well on the said hereby granted lot as on the said yearly rent, hereby and thereout reserved, the first [half] yearly payment thereof to be made on the [first] day of [January,] one thousand eight hundred and [forty-four.] And on default of paying the said yearly rent, on the days and times and in manner aforesaid, it shall and may be lawful for the said [A. B.,] his heirs and assigns, to enter into and upon the said hereby granted premises, or any part thereof, and into the buildings thereon [^exected or] to be erect- ed, and to distrain for the said yearly rent so in arreaJ and unpaid, and to proceed with a:nd sell such distrained goods and effects, according to the usual course of distresses for rent charges. But if sufficient distress cannot be found upon the said hereby granted premises, to satisfy the said yearly rent in arrear, and the charges of levying the same, then and in such case, it shall and may be lawful for the said [A. B.,] his heirs and assigns, into and upon the said hereby granted lot, and all improvements, wholly to re-enter, and the same to have again, repossess, and enjoy, as in their first and former estate, and title in the same, and as though this indenture had never been made.' And the said [C. D.,] his heirs, executors, administrators, and assigns, doth covenant, promise, and agree, to and with the said [A. B.,] his heirs and assigns, by these presents, that he, the said [C. D.,] his heirs and assigns, shall and will well and truly pay, or cause to be paid to the said [A. B.,] his heirs and assigns, the aforesaid yearly rent, or sum of [twenty dollars,] lawful silver money aforesaid, on the days and times hereinbefore mentioned and appointed for payment thereof, without any deduction, defalcation, or abatement for any taxes, charges, or assessments whatsoever; it being the express agreement of the said parties, that the said [C. D.,]- his heirs and assigns, snail pay all taxes whatsoever, that shall hereafter be laid, levied, or assessedjby virtue of any laws virhatever, as well on the said hereby granted lot and build- ings thereon [erected or] to be erected, as on the said yearly rent now charged thereon. Also, that the said [C. D.,] his heirs or assigns, shall and will, within [two years] from the datff hereof, erect and build on the said hereby granted lot, [a good three story brick house,] to secure the said yearly rent hereby reserved : Provided always, nevertheless, that if the said [C. D.,] his heirs or assigns, shall and do at any time, [or times,] [within six years,] pay or cause to be paid to the said [A. B.,] his heirs or assigns, the sum of [four hundred dollars,] lawful money as aforesaid, and the arrearages of the said yearly rent, to the time of such payment, then the same shall for ever thereafter cease and be extinguished, and the covenant for payment thereof shall become void ; and then he, the said [A. B.,] his heirs or assigns, shall and will, at the proper costs and charges in the law of the said grantee, [his] heirs or assigns, seal and execute a sufficient release and discharge of the said yearly rent, hereby reserved to the said [A. B.,] his heirs and assigns^ for ever, any thing herein before contained to the contrary thereof notwithstanding. And the said [A. B.,] his heirs, executors, and administrators, do covenant, promise, and agree, to and with the said [C. D.,] his heirs and assigns, by these presents, that he, the said [C. D.,]. his heirs and assigns, paying the said yearly rent, pr extinguishing the same, and taxes, and performing the covenants and agreements aforesaid, shall and may, at all times hereafter, for ever, free- ly, peaceably, and quietly, have, hold, and enjoy, all and singular the premises hereby grant- ed, with the appurtenances, and receive and take, the rents and prpfits thereof, without any molestation, interruption, or eviction, of [him,] the said [A. B.j] his heirs, or of any other person or persons whomsoever, lawfully claiming or to claim, by, from, or under, [him,] them, or any of them, or by or with [him,] their, or any of their act, means, consent, or pro- curement. In witness whereof, the said parties have interchangeably set their hands and seals hereunto. Dated the day and year first above written. > A. B. , [seal.] Sealed and delivered in 7 • G. D. [: seal. ] the presence of us, 3 E. F. G. H. 37. FORMS OF ACKNOWLEDGMENT OF A DEED. Fov OHB perSOtl. COUNTY OF PHILADELPHU, ss. THE day of , A. D. 184 . Before the subscriber, one of the justices of the peace in and for the county aforesaid, personally came the within named A. B,, and indue form of law acknowledged the within written indenture to be his act and deed, and desired the same might be recorded as such. Witness my hand and seal, the day and year afore- said. C. D., Justice of the Peace, [seal.] 398 LAW FORMS, &c. Form of Acknowledgment 1 — 6y virtue tf a Letter of Mtorney. CITY OF PHILMELPHM, »s. THE day of , A. D. 1844. Before . I. S., Mayor of the said city, personally came the ahove named E. F., and in his own name, and in the name of his constituents, the above named A. B. and C. D., in due form of law acknowledged the above written inden- ture, or deed of conveyance, to be his own act and deed, and the act and deed of his consti- tuents, the said A. B. and C. D., by him, the said E. F., done and executed by virtue of a letter of attorney to him for that purpose granted, and desired the same might be recorded as such. Witness my hand and seal, the day and year aforesaid. J. S., Mayor of the city of Philadelphia, [seal.] ji Form cf Acknowledgment.' — by Husband and Wife. CITY OF PHILADELPHIA, ss. THE day of , A. D. 1844. Before the subscriber, one of the aldermen in and for the said city, personally appeared the above (or within) named A. B., and C, his wife, and in due form of law acknowledged the above (or within) written indenture to be their act and deed, and desired the same might be recorded as such ; and the said C. being of full age, and separate and apart from her said husband, by me thereon privately examined, and the fiill contents of the above (or within) deed being by me first made known unto her, did thereupon declare and say that she did voluntarily, and of her own free will and accord, sign, seal, and, as her act and deed, deliver the above (or within) written indenture, deed, or conveyance, without any coercion or com.pulsion of her said husband. Witness my hand arid seal, the day and year aforesaid. S. B., Alderman, [seal.] 38. FORMS OF PROOF OF THE EXECUTION OF DEEDS. CITY OF PHILADELPHIA, ss. BE IT REMEMBERED, that on the day of , A. D. 1844, before P. C, one of the aldermen in and for the said city, personally came A. B., of the said city, merchant, one of the subscribing witnesses to the execution of the within written indenture, and on his solemn affirmation, according to law, doth declare and say that he did see C. D., the grantor within named, seal, and, as his act and deed, deliver the within written indenture, deed or conveyance for the uses and purposes therein mentioned ; that he did also see E. F. sub- scribe his name thereunto as the other witness of such sealing and delivery, and that the name of this affirmant thereunto set and subscribed as a witness is of this affirmant's own proper and respective handwriting. (Signed,) A. B. Affirmed and subscribed, the day and year aforesaid, 7 before me. Witness my hand and seal. 5 P. C, Alderman. [seal.] • Another form of Pro(f. COUNTY OF PHILADELPHIA, ss. BE IT REMEMBERED, that on the day of , in the year of our Lord 1844, be- fore me, A. B., one of the justices of the peace in and for the county aforesaid, personally came C. D. of , and on his solemn affirmation, according to law, doth declare and say that he was present and did see E. F. of the township of , in the county aforesaid, car- penter, the grantor in the within indenture named, sign, seal, and, as his act and deed, deliver the within written indenture, deed or conveyance for the uses and purposes therein mentioned ; that the same was so signed, sealed and delivered in the presence of G. H. of the city of Philadelphia, bricklayer, and of this affirmant; that the name E. F. set and sub scribed to the said indenture as the party executing the same, is of the proper handwriting of the said E. F. ; and that the names 6. H. and C. D. also set and subscribed to the said indenture as the witnesses attesting the due execution thereof, are of the respective propei handwritings of the said G. H. and of this affirmant. (Signed,) C. D. Affirmed and subscribed, the day and year aforesaid, \ before me. Witness my hand and seal. 3 A. B., Justice of the Peace. [seal.] 39. HOW DEEDS MAY BE PROVEN AND ACKNOWLEDGED. Deeds conveying lands in Pennsylvania, made and executed within the state, may be acknowledged or proved before any judge of the Supreme Court, or the president or associate judge of the court of Common Pleas in any county, or the mayor or recorder of the cities of Philadelphia, Lancaster or Pittsburg, or any alderman of the said cities, or justices of the peace of any county. If made and executed out of the state and within the United States* they may be acknowledged or proved before any LAW FORMS, &c. 399 mayor, chief magistrate or officer of the city, town or pJace where such deeds or conveyances are or shall be made or executed and certified under the common or public seal of such city, town or place, or before one of the judges of the Supreme Court of the United States, or before a judge of the District Court of the United States, or before any one of the judges or justices of the Supreme or Superior Court, or courts of Common Pleas of any state or territory, within the United States, or before any one of the judges or justices of a court of probate, or court of record of any state or territory within the United States, and so certified under the hand of the said judge and seal of the court, (2) or before any comnjissioner residing out of the state of Pennsylvania and in- any other -of the United States, or in the District of Columbia, authorized for that purpose by the governor of this commonwealth. (3) If made and executed in any foreign state, they may be acknowledged or proved be- fore any mayor, or chief magistrate, or officer of the cities, towns, or places where such deeds or conveyances are or shall be made or executed, and certified under the common or public seal of such cities, towns, or places ; or before any consul or vice-consul of the United States, duly appointed for and exercising consular func- tions in the state, kingdom, county, or place where such deeds or conveyances, &c., may or shall be made and executed, and certified under the public official seal of such consul or vice-consul of the United States. 40. ATTESTATION WHERE THERE ARE INTERLINEATIONS OR ERASURES, &C. SIGNED, sealed, and delivered, by the within named A. B., the words " ," having been previously interlined in the sixth and seventh lines in the presence of us. ' (Signed,) A, B. and C. D., witnesses. By a Blind Person. THE above written instrument was signdd, sealed, and delivered, by the above-named A. B., and he being blind, the same was carefully and deliberately read over to him in the presence of us. (Signed,) A. B. and C. D., witnesses. Attestation of the Execution of a Deed hy a person Beef and Dumb. Memorandum. The above written instrument was signed, sealed, and delivered, by the above-named A. B., who being deaf and dumb, but capable of reading, the same- was first read over by him, and he seemed perfectly to understand the same, in the presence of us, &c. (Signed,) ' A. B. and C. D., witnesses. 41. RECEIPT ON A DEED. RECEIVED, the day of the date of the above-written indenture, of the above-named E. F., the sum of dollars, being the full consideration money therein mentioned. 43. GRANT OF A RIGHT OF WAY. THIS INDENTURE, made, &c. between A. B., of, &c., [the grantor,] of the one part, and C. D. of, &c., [the grantee,] of the other part, witnesseth, that in consideration of $ paid to the said A. B. by the said O. D., the receipt whereof is acknowledged by these presents, the said A. B., for himself, his heirs, and assigns, covenants, and grants, with and to the said C. D. his heirs and assigns, that it shall be lawful for the said C. D., his heirs and assigns, and their agents and servants, and the tenants and occupiers for the time being, of the messuage and farm of the said C. D., called, &c., hereinafter mentioned, and all and every other person and persons for his and their respective benefit and advantage, from time to time, and at all times for ever hereafter, at his and their respective will and pleasure by night and by day, and for all purposes, to go, return, pass and re-pass, with horses, carts, wagons, and other caniages, laden or unladen, and also to drive cattle and other beasts on, (2) It has, however, been held that " an acknowledgment before two justices of the county of B in another state, accompanied by the certificate of the clerk of the county court, under the seal of the court, that the persons who took the acknowledgment were justices of the peace, and that there were no magistrates superior to them in B county," is a good acknowledgment under the third section of the act of Assembly of February 24, 1770. 5 Binn. 296. 3 K 424. (3) The power of these commissioners, under the act of the 14th day of April, 1828, does not extend to authorize them to take the separate examination of femes covert [married women]. The power is limited to " acknowledgments and proof of execution," and has no express reference whatever to conveyances hy femes covert. It is therefore believed, and with good reason, that deeds so acknowledged will not pass the estates of femes covert. 400 LAW FORMS, &c. through, along, and over a certain road, or way, lately formed and fenced off by the said A. JJ., out of, and from, and intersecting certain closes or fields, called, &c. , in M — — , in the county of , belonging to him, the said A. B., and which said road or way is the width of fourteen feet or thereabouts, arid leads from the turnpike road or public highway, opposite or adjacent to the said messuage and farm of the said CD., called, &o., in the town of aforesaid, unto and towards a certain road or lane communicating with the farm and lands of the said C. D., called, &c., in the town of , in the same county of, &c., which same road or way, the right or liberty of passing over which is hereby granted, and the course and direction thereof are more particularly descrihed in a map or plan endorsed on these presents ; and that it shall be lawful for the s^id C. D., his heirs, and assigns, to make and lay causeways, or otherwise to repair and amend the same as there shall be occasion. 43. GRANTEE COVENANTS TO KEEP THE WAY IN REPAIR, &C. AND the said 0. D., for himself, his heirs, and assigns, hereby covenants with the said A. B., his heirs, and assigns, that he, the said C. D., his heirs, and assigns, will, from time to time, and at all times hereafter, at his or their own cost and expense, repair and amend, and keep repaired and amended, in a proper, substantial, and workmanlike manner, the said road or way, the right of passing in and over whicli is hereby granted, and also the gate erected by the said A. B. across the said road, at the northern end or extremity there- of, and Ae look and fastening belonging thereto, and will, from time to time and at all times hereafter, at the like cost and expense of the said C. D., his heirs, or assigns, rq)air and renew the quickset hedge and fence lately planted by the said A. B. on both sides if the said road or way i and also that he, the said C. D., his heirs, or assigns, and his and their agents and servants, and the tenants and occupiers for the time being, of the said messuage and farm called, &c., using the said road or way, will, from time to time and at all times, immediately after he or they shall have used and passed throngh'the said gate, shut and lock the same. In witness, &c. 44. DEFINITION OF DOWER. Dower is the widow's right in an estate of inheritance of her husband after his death. It consists of one-third part of all the lands and tenements whereof the husband was seized at any time during the coverture, to hold to herself for the term of her iiatural life. 2 Bl. Com. 129. Widow's share of the intestate's estate is in lieu of dower. «3ci of April 8, 1833, sect. 15. Purd. 654. Sunl. 580. A devise or bequest, by a husband to his wife, of any portion of his estate or pro- perty, is in lieu and bar of her dower. .Act of April 8, 1833, sect. 11. Purd. 1169. Dunl. 573. But she may elect to take her dower in his real estate, and her share of his personalty under the intestate laws. Dunl. 1125. Widow is compelled to ac- cept such devise or bequest in lieu of dower, or to waive such devise or bequest and^ take her dower. Act of March 29, 1832, sect. 35. Purd. 892. Dunl. 543. 45. RELEASE OF DOWER. To all to whom these presents shall come, A., of, &c., relict of B.,late, &e., sends, greeting: KNOW ye, that th<5 said A., as well for and in consideration of the sum of to her in hand, at or before the sealing and delivering of these presents, by her son A. B., of, &c., well and truly paid, the receipt whereof the said A. doth hereby acknowledge, and thereof doth acquit and discharge the said A. B., his heirs, executors, and assigns, forever; and for the love and affection she hath to her said son, and for other good causes and considerations, her thereunto especially moving, she, the said A., hath granted, remised, released, and for ever quit-claim, and by these presents doth fully and absolutely grant, remise, release, and for ever quit-claim, unto the said A. B., his heirs and assigns, for ever, all the dower and thirds, right and title of dower and thirds, and all other ri^t, title, interest, claim, and de- mand whatsoever, in law and equity, of her, the said A., of, in, and to, [a certain parcel of land, &~c., with the parcels, and how it descended to A. and B.,] so that neither she, the said A., her heirs, executors, or admiiiistrators, nor any other person or persons for her, them, or any of them, shall have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or thirds, or any other right, title, claim, or demand, of, in, or to, the said premises, but thereof and therefrom shall be utterly debarred and excluded for ever by these presents. Signed, A. [seal.] In witness, &c. D. E. p TT 46. DIVORCE. Divorces are of two kinds, one total, the other partial ; the one a vinculo ma- trimonii, [from the bond of matrimony ;] the other, a mensa et thoro, [from bed LAW FORMS, &c. 401 and board.] 1 B/. Com. 440. Jet of March 13, 1815, sect. 1. Purd. S14. Diinl 319. £ci of February Z6,lSn. Purd. 31G. Dunl 330. 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 bar- barous treatment, endangering the wife's life ; or 6. Indignities offered to her person, so as to render her condition intolerable, and life burdensome, and there- by force her to withdraw from her house and family. (4) The act of February 26, 1817, {Purd. 316,) also allows a divorce from bed and board, for the two last mentioned causes, and allows the wife such alimony as her husband's circumstances will admit of. 1 W. 263. Alimony, 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, and- was settled at the discretion of the ecclesiastical judge. 1 Bl. Com. 441. • 47. PETITION OR LIBEL FROM THE BOND OF MATRIMONY, ON THE GROUND OF DESERTION. To. the Honourable, &c. THE libel of A. B., or A. B. by her next friend, C. D., respectfully showeth : That your- libellant, [petitionerj on the day of ,18 , was contracted in matrimony, and i married to a certain C. D., and from that time until the day of , 1843, lived ands cohabited with the said C. D., as and as such was owned and acknowledged by him,.. and so deemed and reputed by her neighbours and acquaintances : and although by the laws- of God, as well as by their mutual vows and faith plighted to each other, they were bound to that uniform constancy and regard which ought to be inseparable from the marriage state,, yet, so it is, that the said C. D., from the day of , 184 , hath wilfully and ma- liciously deserted and absented himself from the habitation of this libellant, [petitioner,] without any just or reasonable cause, and such desertion hath persisted in for the term of two years and upwards, and yet doth continue to absent himself from the said libellant. Wherefore, your libellant further showing that is a citizen of the state of Pennsylva-- nia, and has resided therein for upwards of one whole year previous to the filing of this - libel, prays your honours that a subpoena may issue forth, to summon the said CD. to appear in this honourable court, at term next, to answer the complaint aforesaid : And also, that a decree of this honourable court may be made for the divorcing of him, the said C. D.,frora the society, fellowship, and company, of this libellant, in all time to come, and this libellant from the marriage bond aforesaid, as if had never been mar- ried, or as if the said C. D. were naturally dead. And, &c. A. B., by her next friend, C. D. The above named A. B. being duly sworn, says the facts contained in the above libel are true to thebest of knowledge and belief; and that the said complaint is not made out of levity and collusion between and said and for the mere purpose of" being freed and separated from each other, but in sincerity and truth for the causes men- tioned in the said libel. Signed, A. B. Sworn before me, this day of , 1844. C. D., Justice of the Peace. (4) A wife's absence with her husband's previous consent,-or subsequent approval, is not a ma— icious and wilftil desertion ; but such consent or approval is revocable, and the parties by sucK^ revocation, are placed in the same position which tiiey occupied at the time it was given : the- party continuing such absence, will then be guilty of desertion, unless there be reasonable cause J) justify it ; which must be such as would itself be a sufficient ground of divorce. 1 Am. L. J.~ 389. 1 Pars. Eq. Cat. 78. The cruelty, within the Pennsylvania statute, which entitles a wife to a, divorce from her husband, is actual personal violence, or the reasonable apprehension of it ; oi- such a course of treatment as endangers her life or health, and renders cohabitation unsafe. Ibid. . 9 Barr, 167. 2 Am. L, J. 193. A wife's insanity is not a bar to a divorce for adultery, com-- luitted by her when she was insane. 6 Barr, 332. 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 Uie Court of Common Pleas may, on her petition, decree her alimony. 8 W. if S. 251, The removal and domicil of husband and wife in another state, is no bar to proceedings- £jr 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. 6 farr, 449.- And 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. :;auses, domiciled in another state. Pamph. 591, 2a 402 LAW FORMS, &c. From the bond of Matrimony-~on the ground af intolerable treatment. Ij the Honourable, &c. THE petition of A. C, or A. B., by her next friend C. D., respeqtfulljr showeth : That your petitioner, on the day of , 183 , was lawfully joined in marriage with C. D., and from that time until the day of , 1842, lived and cohabited with the said C. D.,,as and was owned and acknowledged by him, and so deemed and reputed by *her neighbours and acquaintances ; and although by the laws of God, as well as by their mutual vows, they then were reciprocally bound to that uniform regard which ought to be inseparable from the marriage state, yet so it is, that the said C. D. has offered such indig- nities to the person of your petitioner, as to render condition intolerable, and life burdensome, and thereby forced to withdraw from house and company. Wherefore, your libellant [petitioner] further showing that is a citizen of the state of Pennsylvania, and has resided therein for upwards of one whole year previous to the filing of libel, prays your honours that a subpoena may issue forth, to summon the said C. D. to appear in this honourable court, at term next, to answer the complaint aforesaid ; and also, that a decree of this honourable court may be made for the divorcing of him, the said C. D., from the society, fellowship, and company, of this libellant, in all time to come, and the libellant, from the marriage bond aforesaid, as if had never been mar- jried, or as if said C, D. were naturally dead. And this libellant, &c. A. B. by her next friend, C. D. . (^Here add the usual affidavit.') From the Bond of Matrimony — on the ground of Adultery. "To the Honourable, &c. THE petition of A. B., or A. C. by next friend, C. D., respectfully showeth : That ■your petitioner, on the day of , in the year of our Lord one thousand eight hundred and , was lawfully joined in marriage with E. F., present and from that time hath lived and in all respects demeaned as a kind and loving . And although by ■ the laws of God, as well as by the natural vows plighted to each other, they were bound to that chastity which ought to be inseparable from the marriage state, yet the said E. F., in violation of marriage vow, hath, for a considerable time past, given self up to adulterous practices, and been guilty of adultery with a certain G. H., and divers other per- sons to your petitioner unknown. Wherefore, your libellant [petitioner] further showing that is a citizen of the state of Pennsylvania, and has resided therein for upwards of one whole year previous to the filing of this libel, [petition,] prays your honours that a subpoena may issue forth, to summon the said C. D. to appear in this honourable court, at term next, to answer the complaint aforesaid. And also, that a decree of this honour- able court may be made for the divorcing of the said C. D., from the society, fellow- ship, and company, of this libellant, [petitioner,] for all time to come; and this libel- lant from the marriage bond aforesaid, as if had never been married, or as if the said C. D. were naturally dead. And this libellant, &o. Signed, A. B., by her next friend, C.T). {Here add the usual affidavit.') From Bed and Board, and for Alimony — on the ground of Desertion. To the Honourable, &c. THE petition of A. B., by her next friend C. D., respectfully showeth, that your libellant [petitioner,] on the day of , in the year of our Lord , was contracted in matrimony and married to a certain C. D., and froin that time until the day of , in »he year of our Lord , lived and cohabited with him as his wife, and as such was -owned and aokpowledged by him, and so deemed and reputed by all her neighbours and acquaintances, and although by the laws of God, as well as by their mutual vows, and faith plighted to each other, they were reciprocally bound to that kindness and uniform regard which ought to be inseparable from the marriage state, yet, so it is, that the said C. D. from the said • day of , in the year of our Lord , hath wilfully and maliciously absented himself from the habitation of this libellant [petitioner] without just or reasonable cause ; and such desertion has persisted in for the term of two years and upwards, and yet doth continue to absent himself, from the said libellant. Wherefore, your libellant, further showing that she is a citizen of this state, and hath resided therein for one whole year and more previous to the filing of this petition, prays your honours that a subpoena may issue from the said court, directed to the said C. D., commanding him to appear at the next term of the said court to answer this |)etitipn, and also that a decree of the said court may be given, granting this libellant a divorce from bed and board, and, also, allowing her such alimony as the said C. D.'s circumstances will admit of, so as the same do not e;5ceed the LAW FORMS, &c. 403 third part of the annual profit or income of his estate or his occupation and labour. And the said libellant as in duty bound will ever pray, and so forth. Signed, A. B. by her next friend, C. D. [Here add the usual affidweit.) From Bed and Board, and for Mimony^-nn the ground of Intolerable Treatment. To the Honourable, &c. THE petition of A. B., by her next friend C. D., respectfully showeth, that your libellant on the day of , in the year of our Lord , was cdntracted in matrimony and married to a certain E. F., and from that time until the day of , in the year of our Lord , lived and cohabited with him as his wife, and as such was owned and acknowledged by him, and so deemed and reputed by all her neighbours and acquaintances, and although by the laws of God as well as by their mutual vows and faith plighted to each other, they were reciprocally bound to that kindness and uniform regard which ought to be inseparable from the marriage state, yet, so it is, that the said E. P. did, prior, to' the said day of , offer such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family. Where- fore, your libellant [petitioner] further showing that she is a citizen of this state, and hath resided therein for one whole year and more previous to the filing of this petition, prays your honours, that a subpcena may issue from the said court, directed to the said E. F,, command- ing him to appear at the next term of the said court to answer this petition, and, also, that a decree of the said court may be given granting this libellant a divorce from bed and board, and also allowing such alimony as the said E. F.'s circumstances will admit of, so as the same do not exceed the third part of the annual profit or income of his estate or of his occupation and labour. And the said libellant as in duty bound will ever pray, and so forth. Signed, A. B. by her next friend^ C. D. {Here add the usual affidavit.') Prom Bed and Board, and far Mmony- — on the ground of Adultery . To the Honourable, &c. THE petition of Av B., by her next friend, C. D., respectfully showeth : That your libellant [petitioner] on the day of , in the year of our Lord , was contracted in matrimony, and married, to a certain C. D., and from that time until the day of , in the year of our Lord , lived and cohabited with him,, as his wife, and as such was owned and acknowledged by him, and so deemed and reputed by all her neighbours and acquaintances, and although by the laws of God, as well as by their mutual vows and faith plighted to each other, they were reciprocally bound to that kindness and uniform regard which ought to be inseparable from the marriage state, yet so it is, that the said C. D'., in violation of his marriage vow, hath, for a considerable time past, to wit, from the day of , in the year of our Lord , given himself up to adulterous practicfes, and has been guilty of adultery with a certain G. H. and divers other persons to your libellant un- known. Wherefore, your libellant further showing that she is a citizen of this state, and has resided therein for one whole year and more previous to the filing this petition, prays your honours, that a subpcena may issue from the said court, directed to the said C. D., commanding him to appear at the next term of the said court, to slnswer this petition, and, also, that a decree of the said court maybe given granting this libellant a divorce irom bed and board, sai, also, allowing' her such alimoity as the said C. D.'s circumstances will admit of, so as the same do not exceed the third part of the annual profit or income of his estate or his occupation and labour. And the said libellant as in duty bound will ever pray, and so forth, &c. Signed, A. B. by her next friend, C. D, {Here add the usual affidavit.') 48. DEFINITION OF A LEASE. ' A L^ASE is a conveyance of any lands or tenements (usually in consideration of rent, or other annual recompense) made for Kfe, years, or at will, but always for a less time than the lessor hath in the premises. ^Bl. Com. 317. Leases for a time exceeding three years, unless put in writing and signed by the parties, have the force and effect of leases at will only. .Ad 2\st March, YllTZ. Pufd. 906. Vunl. 112. , A lease for no determinate period of time is a lease from year to year so long as both parties please. 4 i?.> 133i. ^-, CoTfenants to repair, pay rent, &c., run with the land. 1 Bm,'X)Si. 1 W.A^. C. R. 375. 1 Br. 231. 2 F. 74. He who lets is called the landlord or the lessor ; he who takes the premises is called the tenant or the lessee. 404 LAW FORMS, &c. 49. COMMON FORM OF A LEASE. THIS INDENTURE, made the day of , between H. P., of , tailor, of the one part, and J. C, of , tinner, of the other part, witnesseth : that the said H. P., for and in consideration of the yearly rent and Covenants herein-after mentioned, and reserved- on the part and behalf of the said J. C, his executors, administrators, and assigns, to be paid, kept, and performed, hath demised, set, and to farm let, and by these presents doth demise, set, and to farm let, unto the said J. C, his executors, administrators, and, assigns, all that messuage and tract of land situate, &c., together with all and singular the buildings, improvements, rights, members, and appurtenances, whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof. To- have and to bold the said messuage and tract of land, and all and singular the premises hereby demised, with the appurtenances, unto the said J. C., his exe- cutors, administrators, and assigns, from the day of next ensuing, the date hereof, for and during the term of years thence next ensuing and fully to be complete and ended, yielding and paying for the same unto the said H. P., his executors, adminis- trators, and assigns, the yearly rent or sum of dollars, in four quarterly payments of dollars, each, on the first day of April, first day oiJuly, first day of October, and first day of January, in each and every year; and the said J. C, for himself, his heirs, exe- cutors, and administrators, doth covenant, promise, and agree, to and with the said H. P., his heirs, executors, administrators, and assigns, by these presents, that the said J. C, Iiis heirs, executors, and administrators, or some of them, shall and will, well and truly, pay or cause to be paid unto the said H. P., his heirs, executors, administrators, or assigns, the said yearly rent of dollars, hereby reserved, on the several days and times herein-before mentioned and appointed for payment thereof according to the true intent and meaning of these presents. And the said H. P., for himself, his heirs, executors, and administrators, doth covenant, promise, grant, and agree to and with the said J. C, his executors, adminis- trators, and assigns, by these presents, that he the said J. C, his executors, administrators, and assigns, (paying the rent and performing the covenants aforesaid,) shall, and lawfully may, peaceably and quietly have, hold, use, occupy, possess, and enjoy the said demised premises, with the appurtenances, during the term aforesaid, without the lawful let, suit, trouble, eviction, molestation, or interruption of the said H. P., his heirs, or assigns, or of any other person or persons whatsoever. In witness, &c. 50. A LEASE MADE BY TENANTS IN COMMON. THIS INDENTURE, made, &c. between A. B. &c. of the first part, C. D. &c. of the second part, and E. F. &c. of the third part, witnesseth : that for and in consideration of the rents, covenants and agreements hereinafter reserved and contained, and which, by and on the part and behalf of the said E. F„ his, &c., are to be paid, done and performed, he the said A. B^ as to one undivided moiety or half part, the whole into two equal parts to be divided, of all that messuage or tenement with the appurtenances hereinafter particularly mentioned and described, and the said C. D., as to one undivided moiety or half part, the whole into two equal parts to be divided of all that said, &c., have, and each of them hath (according to their several and respective shares and proportions aforesaid,) demised, leased, set and to farm let unto, and by these presents do and each of them doth demise, lease, set and to farm let unto the said E. F., his, &c., all that, &c. (Describe the parcels and insert the usual covenants, and then the following :) {A covenant by one nf the lessors for quiet enjoyment if one undivided moiety.) And the said A. B>, for himself, his heirs, executors and administrators, doth covenant, &c., to and with the said E. F., his executors, administrators and assigns, in manner follow- ing: (that is to say) that he the said E. F., his executors, administrators or assigns, paying the rent hereby reserved and performing the covenants and agreements herein-before men- tioned and contained, and which, on his and their parts, are or ought to be paid and per- formed, shall and may peaceably and quietly have, hold, use, occupy, possess and enjoy the said messuage, &c., with the appurtenances hereby demised as to one undivided moiety or half part thereof only, for arid durini^ the said term hereby granted, without the let, suit, trouble, molestation or interruption of hiro the said A. B., his neirs, executors, or adminis- trators, or any other person or persons,^ lawfully claiming or to claim, by, from, or under him, them, or any of them. (Add the like covenant from C. D. as to one undivided moiety only.) 51. THE LESSOR COVENANTS TO SELL THE INHERITANCE TO THE LESSEE ON REQUEST. AND in case the said C. D., (the lessees) his heirs, executors or administrators or assigns, shall during the said term be desirous to purchase the inheritance of the premises hereby demised, and shall give notice of such intention or desire, in writing, during the same term, unto the said A. B., (the lessor,) his heirs, assigns, at his, or their usual place of abode, then he, the said A. B., his heirs and assigns, shall and will, at any time during the said LAW FORMS, &c. 405 terra, at the charges in the law of the said C. D., his heirs, executors and administrators or assigns, convey and assure the inheritance of the said hereby demised premises unto the said C. D., his heirs, executors, administrators or assigns, and to the heirs and assigns of him or them, or as he or they shall direct, he, the said C. D., his heirs, executors, &c., paying unto the said A. B., his heirs or assigns, the sum of as the consideration of such pur- chase, and also paying to him or them all arrears of rent which shall be then due, &c. 52. SPECIAL FORM OF A LEASE WITH AUTHORITY, IN CERTAIN CASES, TO ENTER JUDGMENT IN EJECTMENT. MEMORANDUM. [That I, A. B.,] demise to [C. D.,] a messuage or tenement [sit- uate on the north side of Cedar street. No. 89, between Third and Fourth streets] for the term of [ten] years from the date hereof, at a yearly rent of [four hundred] dollars, payable quarterly, the first payment to be made on the [tenth] day of [June] next ; and if the rent shall remain unpaid on any day on which the same ought to be paid, then the lessor may enter on the premises, and proceed by distress and sale of the goods there found, to levy the rent and all costs. The lessee covenants with the lessor to pay the rent punctually as above provided for,, and during the term to keep, and at the end thereof, peaceably deliver up the premises in good order and repair, reasonable wear and tear, and damage by accidental fire excepted, and not assign this lease, nor underlet the premises or any part thereof: and if the lessee shall in any particular violate any one of his said covenants, then the lessor may cause a notice to be left on the premises of his intention to determine this lease, and at the expiration of [thirty] days from the time of so leaving such notice, this lease shall abso- lutely determine : and upon the expiration or other determination of this lease, any attorney may immediately thereafter, as attorney for the lessee, sign an agreement for entering in any competent court an amicable action and judgment in ejectment (without any stay of execution) against the lessee and all'persons claiming under him, for the recovering, by the lessor, of possession of the hereby demised premises, for which this shall be a sufficient warrant; and the lessee hereby releases to the lessor all errors and defects whatsoever, in entering such action or judgment, or in any proceeding thereon, or concerning the same. No such determination of this lease, nor taking or recovering possession of the premises, shall deprive the lessor of any action against the lessee for the rent or for damages. All rights and liabilities herein given to or imposed upon either of the parties hereto, shall extend to the heirs, executors, administrators and assigns of such party. In witness whereof the said parties have hereunto set their hands and seals. Dated the firstday of June, A. D. 1844. Signed, A. B. [seal.] Signed, sealed, and delivered ") CD. [seal.] in the presence of 3 E. F., G. H. 53. PROVISO, WAIVING THE BENEFIT OF THE ACTS EXEMPTING GOODS FROM DISTRESS FOR RENT. AND the said C. D., for himself, his executors, and administrators, doth hereby covenant Mnd 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 now made, or hereafter to be made, exempting personal property from levy and sale for arrears of rent, (5) 54. ASSIGNMENT OF A LEASE. KNOW ALL MEN by these presents, that I, the within named E. D., for and in con- sideration of the sum of one hundred dollars, to me in hand paid by E. F., of, &c. at and before the ensealing and delivering hereof, the receipt whereof 1 do hereby acknowledge, have granted, assigned, and set over, and by these presents do grant, assign, and set over, unto the said E. F., his executors, administrators, and assigns, the within indenture of lease, aiid all that messuage, &c. thereby demised, with the appurtenances : And also, all my estate, right, title, term of years yet to come, claim and demand, whatsoever, of, in, to, or out of the same ; — Tb have and to hold the said messuage, &c. unto the said E. F., his exe- cutors, administrators, and assigns, for the residue of the term within mentioned, under the yearly rent and covenants within reserved and contained, on my part and behalf to be done, kept, and performed. In witness whereof, &c. (5) A party may waive a statutory requirement for his benefit. 3 £ar&, 316. The exemption of certain goods from distress for rent is a privilege which the law afibrds to tenants, and one which they may waive by their contract. 6 Waits, 34. 406 LAW FORMS, &c. 55. A SHORTER FORM. MEMORANDUM. This 1st day of January, 1845, the within named E. D. hath this day assigned and made over unto the undersigned E. F., of, &o., all and singular, the here- ditaments and premises in the within written lease described and granted, with the whole of his estate and interest. As witness his hand, &c. 56. LETTERS OF ATTORNEY A letter of attorney is an instrument of writing authorizing a person who is called the attorney of the person appointing hdm, to do any lawful act in the place or stead of him who appoints, as to make a deed, collect and receive dehts, &c. If proved hy two or more of the witnesses thereimto, before any alderman or justice of the peace, mayor, or chief magistrate, or officer of any city, town, or place, where made and certified under the common or public seal oi^ such city, town, or place, is sufficient in law. (Act of 1705. Purd.9i. Bunl. 53.) Such powers are in force until the agent or attorney has due notice of a countermand, revocation, or the death of the constituent or person granting the power. A letter of attorney may also be acknowledged before the same authorities. (1 Peters' C. C. 433.) Powers, authorities, and directions, in a will, not given to any person by name or description, are deemed to have been given to the executors thereof. Act of 24th February, 1834, section 12. Purd. 474. Dunl. 585. If the power be special, every thing not in strict conformity thereto is void. I W. C.C.R.m. 2/?. 346. 3F. 38. IF. 200. 6Binn.61S. US. ^R. 331. 6 S. ^R, 90, 149. 10 S. ^ R. ,251. 1 R. 341. Minors and married women cannot make attorneys ; but infants, if of sufficient discretion, and married women, may be attorneys. An attorney cannot substitute but by express power. One is bound by every act of his general agent or attor- ney, even if he exceeds his authority, unless there is notice. On the death of the constituent, the power of attorney ceases, and all subsequent acts under it are void. 57. GENERAL FORM OF A LETTER OF ATTORNEY. KNOW ALL MEN by these presents, that [I, A. B.,] have constituted, made, and ap- ointed, apd by these presents do constitute, make, and appoint, [C. D. my] lawful attor- ney, for [me,] and in [my] name and stead, and to [my] use, to ask, demand, sue for, levy, pointed, apd by these presents do constitute, make, and appoint, [C. D. my] lawful attor- ' in [my] name and stead, and to [my] use, to ask, <" recover, and receive, all such sum and sums of money, debts, rents, goods, wares, dues, ac- counts, and other demands whatsoever, which are or shall be due, owing, payable, and be- longing to [me,] or detained from [me] in any manner of ways or means whatsoever, espe- cially, &e., [here state particularly what the attorney is required to execute,] giving and granting unto [my] said attorney, by these presents, [my] full and entire power and author- ity, in and about the premises, to have, use, and take, all lawful ways and means, in [my] name, for the recovery thereof; and upon the receipt of any such debts, dues, or sums of money aforesaid, acquittances, or other sufficient discharges, for [me] and in [my] name to make, seal, and deliver, and generally all and every other act and acts, thing and things, device and devices, in the law, whatsoever, needful and necessary to be done in and about the premises, for [me] and in [my] name to do, execute, and perform, as fully, largely, and amply, to all intents and purposes, as [I] might or could do, if [I were] personally present, or as if the matter required more special authority than is herein given ; and attorneys one or more under [him] for the purpose aforesaid to make and constitute, and again at pleasure to revoke;, ratifying, allowing, and holding for firm and effectual, all and whatsoever [my] said attorney or [his] substitute shall lawfully do in and about the premises, by virtue hereof. In witness whereof, [I] have hereunto set [my] hand and seal, the [tenth] day of [May,] in the year of our Lord one thousand eight hundred and [forty-four.] Signed, sealed, and delivered, 7 Signed, [A. B.] [seal.] in the presence of 5 G. H., E. F. COUNTY OF ■ THIS [tenth] day of [May,] A. D. [1844,] personally appeared before me, the sub- scriber, one of the justices of the peace in and for the said county of , the above named [A. B.,] and acknowledged the- foregoing power of attorney to be [his] act and deed, and desired the same might be recorded as such, according to law. Witness my hand and seal, this [tenth] day of [May,] A. D. [1844.] [E. F.,] Justice of the Peace, [seal.] LAW FORMS, &c. 407 58. GENERAL LETTER OF SUBSTITUTION. TO ALL PEOPLE to whom these presents shall come, C. D., of this city of P ,and state of P i merchant, sends greeting : Whereas A. B., of the county of P , and state aforesaid, merchant, in and by a certain instrument of writing, or letter of attorney, bearing date the tenth day of January, one thousand eight hundred and thirty-nine, did make, constitute, and appoint the said C. D. to, &c., [as in the original power,] as in and by the said letter of attorney, [recorded, or intended to be recorded, &c.,] relation being thereunto had, appears. Now know ye, that the said C. D. hath made, appointed, and substituted, and by these presents, by virtue of the power and authority given to him by the said recited letter of attorney, doth make, appoint, and substitute E. P., &o., to be the true and lawful attorney of the said A. B., the constituent in the foregoing letter of attorney named, to do, execute, and perform, all such acts, deeds, matters, and things, as shall and may be requi- site and necessary to be done and performed for effecting the purposes and object in the said letter of attorney contained, as fully and effectually, in all respects, and to all intents and purposes, as I myself might or could do, in virtue of the power and authority aforesaid, if personally present, hereby ratifying and confirming all and whatsoever my said substitute may lawfully do in virtue hereof. In witness, &c. 59. TO RECEIVE MONEY ON A BOND. KNOW ALL MEN by these presents, that I, A. B., of the borough of R , and state of P , hatter, do make, constitute, and appoint C. D., of the city of B , in the state of M , my true and lawful attorney, for me and in my name, to ask, demand, and re- ceive, from E. F., of the city of B aforesaid, the sum of three hundred dollars, due unto me in and by a certain bond or obligation, bearing date the day of , and upon non- payment thereof, to have, use, and take, all lawful ways apd means, in my name, or other- wise, lor the recovery of the same, with the interest thereon, if any be due, by attachment, bill, plaint, arrest, or otherwise. In witness whereof, &c. 60. TO RECEIVE DIVIDENDS ON STOCK. KNOW ALL MEN by these presents, that I, A. B., of the city of L , and state of P , brewer, do make, constitute, and appoint C. D., of the city of W , esquire, my true and lawful attorney, for me and in my name, to receive the dividends which.are, or shall be payable, according to law, on all the stock standing in my name in the books of the trea- sury of the United States, [or in the books of the loan office, or bank of, &e., as the case may be,] with the power also to make and substitute an attorney or attorneys under him, for that purpose, and to do all lawful acts requisite for effecting the premises, hereby ratify- ing and confirming all that my said attorney or his substitutes shall lawfully do hy virtue hereof. In witness, &c. 61. TO CONVEY LANDS.(6) KNOW ALL MEN by these presents, that I, A. B., of, &c., have made, constituted, and appointed, and by these presents do make, constitute, and appoint, and in my place and stead, put and depute C. D., of, &c., my true and lawful attorney, for me and in my name, place, and stead, to grant, bargain, and sell, all that messuage, &c., [here describe the premises,] with the appurtenances, and all my estate, right, title, and interest therein, unto such person or persons, and for such price or prices, as he shall think proper ; and also for Jne and in my name, place, and stead, and as my proper act and deed, to sign, seal, deliver, and acknow- ledge, all such deed or deeds of conveyance as shall be necessary for the absolute granting and assuring of the premises unto the purchaser or purchasers, in fee-simple. Giving, &c. 63. ACKNOWLEDGMENT OF A DEED. KNOW ALL MEN by these presents, that I, the within named A. B., do hereby nomi- nate and appoint C. D., E. F., and G. H., all of W county, in the state of V — — , or any one of them, my true and lawful attorneys for me, and in my name, to acknowledge the within deed, and the lands and tenements therein mentioned, to be the estate and .property of the vrithin named J. K. In witness, &c. 63. TO ACKNOWLEDGE SATISFACTION ON A MORTGAGE. To all people to whom these presents shall come, B. D., of the city of P , merchant, sendeth greeting : WHEREAS A. B., of, &c., by indenture of mortgage under his hand and seal, bear- ing date the day of ,184 , for the better securing the payment of the sum of three hundred dollars, with its interest, which he was justly indebted to- the said C. D., on (6) Powers relating to lands should be recorded in the county where the lands lie. 408 LAW FORMS, &c. a certain obligation tlierein mentioned, did grant, bargain, sell, release, and confirm, unto the said C. D., and to his heirs and assigns, the premises in the said indenture particu- larly described. To hold the same until due satisfaction should be made for the said debt and interest, then the said indenture of mortgage to be null and void, as by the said recited indenture, recorded in the office for recording of deeds at R , in and for the county of B , in mortgage book A., No. 2, page , relation being thereunto had, appears, ^nd whereas the said A. B. hath fully satisfied and paid the said debt and interest: Tha^att know ye, the said C. D. hath made, constituted, and appointed, and by these presents doth make, constitute, and appoint E. F., of, &c., his true and lavpful attorney, for him, and in his name, to appear in the office aforesaid, and there acknowledge and enter satisfaction in the margin of the record aforesaid, for the said debt and interest, in full discharge of the said mortgage, and of the obligation therein recited, and for his so doing this shall be his suffi- cient warrant. In witness whereof, &e. 64. A POWER OF ATTORNEY TO LEASE LANDS NOT EXCEEDING TWENTY YEARS. KNOW ALL MEN, &c., and by these presents do give unto the said C. D. full power and authority, for me, and in my name, by writing indented, or by several writings indented, to demise, grant, and to farm let, all those my messuages, &o., situate, lying, or being, in the county of , or any of the premises, as to the said CD. shall seem meet and convenient, to such person or persons ; and during such term of years, (so that the said lease or leases do not exceed the number of twenty years,) with such reservation of rents, covenants, grants, agreements, and conditions, to be contained in the said several writings indented, as to the said C. D. shall seem expedient; and also, in my name, to seal and de- liver such writing or writings indented, as my deed or deeds, and the one part of all and every such writing or writings indented, as to the said C. D., in my name, shall be in fonn before rehearsed, to and for my use with him to retain and keep. And I, the said A. B., and my heirs, shall and will, at all times hereafter, ratify and confirm all and every act and acts, thing and things, which he, the said C. D., in my name, shall lawfully do, by virtue here- of, in the premises. In witness, &c. 65. A REVOCATION OF A POWER OF ATTORNEY. To all persons to whom these presents shall come, A. B., &c. sendeth greeting : WHEREAS I, the said A. B., by my letter of attorney, bearing date , did constitute, &c., C. D., &c., my attorney for certain purposes, and with certain powers, in the said letter of attorney contained, as therein at large appeareih : Know ye, that I, the said A. B., for divers considerations me hereunto moving, have made void, countermanded, and revolced, and do hereby make void, countermand, and revoke, the said letter of attorney, and all and singular the powers, &c., given by virtue thereof. In witness, &c. 66. POWERS OP ATTORNEY TO ATTORNEYS AT LAW. Power of allorney by defendant. KNOW ALL MEN by these presents, that I, A. B., of the city of L , do hereby make, appoint, and constitute, C. D., esquire, of the borough of R , ray good and law- ful attorney in law, and in fact, to appear for me in a certain plea, pending in the court of Common Pleas, wherein E. F. is plaintiif, and I, the said A. B., am defendant; and take defence, and use all lawful ways and means, in my name therein, in as full and efiectual a manner as I could do, if personally present in the said court ; hereby confirming and sanc- tioning whatsoever my said attorney, in the said plea, touching the defence thereof, may do according to law, in the premises. Witness my hand and seal this day of , one thousand eight hundred and forty-four. (Signed,) A. B. [seal.] Witnesses. CD., E.F, By plaintiff to institute suit, KNOW ALL MEN, &c. [as above.] To institute for me, and in my name, a plea of against a certain E. F., in a proper and convenient court of law ; and the same to con- duct to trial and judgment in as speedy a manner as the said C D. reasonably can; and to conduct the prosecution of the said suit or action, so to be brought, and use all lawful ways and means, in my name therein, in as full and efiectual a manner as I, the said A. B., could do, if personally present ; hereby confirming and sanctioning whatsoever ray said attorney, in the said plea, touching the prosecution thereof, may do, according to law, in the premises. Witness, &c. [as aboveij > .. ■ ■ By plaintiff to conduct suit already brought, KNOW ALL MEN, &c. [as above.] To appear for me, in a certain plea or action, com- menced and pending in the B county court of Common Pleas, wherein I, the said A. B., am plaintiff, and a certain E. F. is defendant ; and to conduct the prosecution of the said LAW FORMS, &c. 409 plea or action, so as aforesaid bioaght, and use all lawful ways and means, in my name therein, in as full and effectual a manner as I could do if personally present; hereby con- firming and sanctioning whatsoever my said attorney in the said plea, touching the prosecu- tion thereof, may do, according to law, in the premises. Witness, &c. [as ahove.] 67. PETITION FOR A TAVERN LICENSE. To the Honourable the judges of the court of Quarter Sessions for the County Df Phila ■ delphia. THE petition of [A. B.] respectfully showeth : — ^That your petitioner occupies a [three] story [brick] house with the appurtenances, of which [C. L.] is the owner, situate in [Chestnut street, between Third and Fourth streets, No. 100 ;] containing in front or breadth [twenty] feet, and in length or depth [eighty] feet. The lot on which the same is erected is [twenty-eight] feet front, and [one hundred] feet deep. Has in all [forty] rooms. Thts nearest tavern [is distant half a square.] Which said house is well calculated for a public house of entertainment, and from its neighbourhood and situation, is suitable for the accom- modation of inhabitants, strangers, and travellers. That your petitioner bona fide means to appropriate [thirty-five] rooms in the house for the purposes of such tavern, and for the use and accommodation of his, guests. And your petitioner hereby promises, that if he removes from the said premises before the expiration of his license, he will leave notice in writing, of such removal, at the office of the clerk of this court. He therefore humbly prays the court to grant him a license to keep a public house there. And your petitioner will ever pray, &c. (Signed,) [ Al. B.] I, [C. L.] owner of the within described premises, do hereby certify that I am willing and do consent that the same may be licensed for, and used and occupied as a tavern. (Signed,) ICL.] WE, the subscribers, citizens of, and residing within the bounds of [Walnut ward,] do hereby certify that we are personally and well acquainted with [A. B.] the within-named petitioner. V That he is, and we know him to be, of good repute for honesty and temperance, and is well provided with house-r:oom and conveniences for the lodging and accommodation of inhabitants, strangers, and travellers. And we do further certify, that we know the house for which the license is prayed, and from its neighbourhood and situation, believe it to be suitable for a tavern, and necessary to accommodate the public, and entertain strangers . and travellers. (Each person who signs this recommendation is requested to write his residence after his name.) Names. I Residence. COUNTY OF PHILADELPHIA, ss. BE IT REMEMBERED, That on the [tenth] day cf [May,] Anno Domini one thou- sand eight hundred and [forty-four,] before me, the subscriber, clerk of the court of Quarter Sessions, for the county of Philadelphia, personally appeared [A. B.] the petitioner, who being duly [sworn] according to law, doth depose and say, that the facts set forth and con- tained in this petition are just and true, according to the best of his knowledge and belief. [Sworn] and subscribed, the') (Signed,) [A. B.] day and year aforesaid. 3 [E. F. Clerk.] 68. LIENS. The benefit of the act of I6th June, 18.36, {Purd. 798, Dunl. 779,) is extended to wharf-builders, (Purd. 802, Bunl. 856,) to paper-hangers, {Dunl. 1205,) and to persons erecting buildings by contract. Purd. 803. Dunl. 1055. Materials fur- nished for, though not used in the erection of a building, constitute a lien. 2 S.Sf R. 17. 12 Ibid. 303. If not furnished for, although used in the building, no lien is acquired. 16 S. Sf R. 56. Lien binds no greater estate in the ground, than that of the person in possession, at whose instance the building is erected. Purd. 803. Dunl. 916. 69. FORM or A mechanic's lien. IN the [District Court] for the city and county of Philadelphia : [A. B. and C. D.] claim a lien for [two hundred] dollars, against all that certain [house,] together with the lot where- on the same is erected, situate in the [county] of Philadelphia, [in Buttonwood street, north side, No. 100, three doors above Tenth street,] belonging or said to belong to [J. K.] [If for work and labour, say for work and labour,] viz. done and performed in the erectaon and construction of said by the said as a employed in the erection and construction of the said within six months last past ; (for materials, viz. found 410 LAW FORMS, &c. and provided for the erection and construction ofsaid [house] by [us,l the said [A. B. and C. D.,] as a builder employed in furnishing the materials for the said , within six months last past.) A bill, or more particular statement of the materials, so found and pro- vided, is hereto annexed. [A. B.] therefore requires the prothonotary of the said court to enter the same as a lien against the premises aforesaid, agreeably to the provisions of the act of Assembly in such case made and provided. To [H. M.,] Esquire, prothonotary of said court. Philadelphia, A. D. 184 . 70. MORTGAGE. A modern mortgage may be described to be a conveyance of lands by a debtor to his creditor, as a pledge and security for the repayment of a sum of money borrowed, with a proviso, that such conveyance shall be void on payment of the money and interest on a certain day ; and, in all mortgages, although the money be not paid at the time appointed, by which the conveyance of the land becomes absolute at law, yet the mortgagor has still an equity of redemption, that is a right in equity on payment of the principal, interest and costs, within a reasonable time, to call for a reconveyance of the lands. 1 Powell on Mortgages, 4. He who gives the mortgage is called the mortgagor, he who takes it the mort- gagee. Proceedings for recovery of money on mortgage in Pennsylvania, are b^ scire facias. (.Act of 1705, sect. 6. Purd. 290.) Mortgage to be recorded within six months. (.Act of May 28, 1715, sect. 8. Purd. 293.) The lien of mortgages is according to priority of record, except mortgages for pUrchasq money, which take effect from date, if recorded within sixty days. £ct of March 28, 1820, •eel. 1. Purd. 300. [Diinl. 51, 64, 354.] 71. FORM OF A MORTGAGE. THIS INDENTURE, made the [tenth] day of [May,] in the year of our Lord one thousand eight hundred and [forty-four,] between [A. B., of the city of Pittsburg, county of AUpgheny, state of Pennsylvania, currier, [of the one part, and] C. D. of the same place, car- ter,] of the other part. Whereas, the' said [A. B.] in and by [a certain] obligation or writing obligatory under [his] hand and seal, duly executed, bearing even date herewith, stands bound unto the said [C. D.] in the sum of [two thousand dollars] without any fraud or further delay, as in and by the said [certain] recited obligation and the condition thereof, relation being thereunto had may more fully and at large appear. Now, this in- denture witn^sseth, that the said [A. B.] as well for and in consideration of the aforesaid debt or [certain] sum of [two thousand dollars,] and for the better securing the payment of the same with interest unto the said [C. D.,] his executors, administrators aiid assigns, in discharge of the said [certain] recited obligation, as for and in consideration of the further sum of one dollar unto [him] in hand well and truly paid by the said [C. D.] at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, [has] granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents [doth] grant, bargain, sell, alien, enfeoff, release and confirm unto the said [0. D.,] his heirs and assigns, [here describe particularly the property] together with all and singular ways, waters, water-cdurses, rights, liberties, privileges, improvements, hereditaments and appnr- tenances whatsoever thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof, , to have and to hold the said hereditaments and premises hereby granted or mentioned or intended so to be, with the -appurtenances unto the said [C. D,,] his heirs and assigns, to the only proper use and behoof of the said [C. D.,] his heirs and assigns for ever. Provided always, neverthe- less, that if the said [A. B.,] his heirs, executors, administrators or assigns, do and shall W-ell and truly pay) or cause to be paid unto the said [C. D,,] his executors, administrators or assigns, the aforesaid debt or [certain] sum of [two thousand dollars] on the [certain] day and time herein-before mentioned and appointed for payment of the same, together with lawful interest as aforesaid, without any fraud or further delay, and without any deduction, defalcation or abatement to be made of any thing, for or in respect of any taxes, charges tot assessments whatsoever, that then, and from thenceforth, as well this present indenture, and the estate hereby granted, as the said [certain] recited obligation, shall cease, determine and become void, any thing herein-before contained to the contrary thereof, in any wise notwith- standing. In witness whereof, the said parties to these presents, have interchangeably set their hands and seals hereunto. Dated the day and year first above written. Sealed and delivered in 7 Signed, [A. B.] [seal.] the presence of J [E. T.] [R-S.] LAW FORMS, &c. 411 On the [tenth] day of [May,] Anno Domini, 1844, before me, [an alderman in and for the city of Philadelphia,] personally appeared the above named [A. B.,] and in due form of law acknowledged the above indenture of mortgage to be [his] act and deed, and desired the same might be recorded as such. Witness my hand and seal, the day and year aforesaid. [G. H.,] Alderman, [seal.] 73. ASSIGNMENT- OF A MORTGAGE. KNOW ALL MEN by these presents, that I, A. B., the mortgagee within named, for and in consideration of the sum of six hundred dollars to me in hand paid by C. D., of, &c., at and before the ensealing and delivering hereof, the receipt whereof is hereby acknow- ledged, have granted, bargained, sold, assigned and set over, and by these presents'cfo grant, bargain, sell, assign, and set over, unto the said C. D., his heirs and assigns, the within indenture of mortgage, and all that messuage, &c., therein mentioned and described : To- gether with the rights, members, and appurtenances thereunto belonging, and all my estate, right, title, and interest therein : To have and to hold all and singular the premises hereby granted and assigned, or mentioned, or intended so to be, unto the said C. D., his heirs and assigns for ever; subject, nevertheless, to the right and equity of redemption of the within named E. F., his heirs and assigns, (if any they have,) in the same. In witness whereof, &c. [It should be acknowledged, or proved, and recorded.] 73. FORM OF MANUMISSION OF A SLAVE. KNOW ALL MEN by these presents, that I, J. M., of , for and in consideration of the sum of dollars, to me in hand paid by A , the receipt whereof I do hereby acknowledge, have given, granted, bargained, sold, aliened, released, and confirmed, and by these presents do give, grant, bargain, sell, alien, release, and confirm, unto the said A , a negro boy called S , (son of the said A ,) together with all the right, title, interest, claim, property, possession, and demand whatsoever of me, my executors or administrators, of, in, and to, the said negro S : To have and to hold the said negro S , and all and singular the premises above mentioned, unto him the said A , and his assigns, for ever. In witness, &c. 74. ANOTHER FORM OF THB SAME. KNOW ALL MEN by these presents, that I, A, E., of , froin motives of benevo- lence and humanity, have manumitted, and hereby do manumit, and set free, from slavery, my negro girl S , aged about years ; on condition, however, that she do forthwith bind herself, by indenture, to serve me, my executors, administrators, or assigns, until she shall attain the age of twenty-eight years : And I do hereby give, grant, and release, unto the said S , all my right, title, and claim, of, in, and to, her person, labour, and service, and of, in, and to, the estate and property which she may hereafter acquire or obtain, except- ing only her seryices, in manner and during the term above mentioned. In witness, &c. 75. HOADS. The act of 1700, ch. 57, was the first enactment, in Pennsylvania, on the sub- ject of erecting bridges and maintaining highways. It continued in force until the act of 1803. The revised act of June 13, 1836, {Purd. 1030, Durd. 723,) sup- plies the place of both the above mentioned acts. (7) Roads are of three kinds in Pennsylvania, viz. : Public roads, called in the act of 1700, " the king's highways," laid out by order of the governor and council ; the records of which are in the office of the secretary of the commonwealth. Roads or cartways, leading to such great provincial roads as were laid 'out by order of court on return of viewers. Private roads, likewise laid out by order of court, on the application of any person for a road to be laid out to or from their plantations or dwelling-places, or to or from the highways. In all grants of land, either by the proprietaries or commonwealth, six per cent, has been added in quantity to every man's land, for the purpose of contributing to the establishing of roads or highways. The word road, unless where the word private is pre- (7) There has recently been published, "by authority of the commissioners of the county of Philadelphia, A Digest of County Laws, containing the acts of Assembly relating to counties and townships throughout the state, and local laws relating to the county of Philadelphia ;" a work distinguished by laborious research, and a clear and lucid arrangement. Toil we are indebted for much of the matter which makes up this article, and for the many valuable forms which follow it. 412 LAW FORMS, &c. fixed, IS uniformly applied to public roads, and is synonymous with the term high- ways. (3 F. 426.) The word street is also considered equivalent to highway. 4S.4rli. 106. . • . . The court of Gtuarter Sessions of every county, (except Philadelphia,) on heing petitioned to grant a view of a road in their respective county, is required {act of June 13, 1836, sect. 1,) to appoint, as often as may be needful, six discreet and respectable citizens, qualified to vote for members of the legislature, (sect. 51,) but not residing on or owning land along the route of such road, (sect. 19,) to view the ground proposed for such road, and make report of their proceedings to the next term. The viewers, if they agree that there is occasion for a road, are required to lay out the same, (sect. 2,) having respect to the shortest distance and the best ground, and with the least injury to private property, and as far as prac- ticable in conformity to the desire of the petitioners. To make a valid vieto,jive of the six must view the ground, and four of the actual viewers concur in the re- port, (sect. 52.) The report of the viewers must be made to the next term of the court, and stale particularly: 1. Who of them were present at the view ; 2. Whether they were severally sworn or affirmed ; 3. Whether the road be necessary for a public or private road ; annex a plot or draft, stating the courses and distances, noting briefly improvements through which it may pass, and whenever practicable to lay out the road at an elevation not exceeding five degrees, except at the crossing of ravines and streams, where, by moderate filling and bridging, the declination of the road may be preserved within that limit, (sect. 3.) The court are to direct of what width the road shall be, (sect. 4.) Public roads must not exceed fifty, nor private roads twenty-five feet in width, (sect. 5.) Da- mages are to be assessed by six disinterested persons, appointed by the court, on petition, who are to report, in writing, and after confirmation by the court, the amount of damages are to be paid by the county treasurer, (sect. 7 and 8.) In cases of private roads, swinging gates may be allowed by the court, after view, and favourable report, and may be put up at the expense of the parties ap- plying for the same, by petition, when the same may be done without much in- convenience to the persons using such road, (sect. 13.) Private roads must be opened, fenced, and kept in repair, by the petitioners, their heirs and assigns, (sect. ,15.) The damages shall be paid by the same persons, and the'road shall not be opened until they are fully paid, (sect. 16.) Other persons than the peti- tioners may, aftervvards, use a private road, after contributing to the expense such sum as the court may direct, (sect. 17.) For the modes of vacating and reviewing roads, the reader is referred to the County Digest, 315, 316. 76. PETITION FOR A PUBLIC ROAD. To the judges of the court of Common Pleas of the county of , composing a court of Quarter Sessions of the Peace for said county : THE petition of the subscribers respectfully showeth : That they labour under great in- convenience for the want of a public road or highway, (or private road,) to lead from to , in said county, [there must be no intermediate points made in the road prayed for;] they therefore pray the court to appoint persons duly qualified to view the ground proposed for said road, and to lay out the same according to law. 77. ORDER OF COURT ON THE ABOVE PETITION. AT a court of Quarter Sessions of the Peace of the county of , held at , in and fjr said county, on the day of , in the year one thousand eight hundred and On the petition of the subscribers thereto, setting forth that they labour under great incon- venience for the want of a public road or highway, (or private road,) to lead from to , in said county, and praying the court to appoint proper persons to view the ground for said road, and to lay out the same as aforesaid, — Thereupon the court appoint A. B., &o., (who being first severally sworn or affirmed to perform their duties impartially and according to the best of their judgment,) to view the ground proposed for said road, and, if they, or any five of them, view the same, and any fonr of the actual viewers agree that there is occasion for a road, to proceed to lay out the same, (having respect to the shortest distance and the best ground for a road,) in such a manner as to do the least injury to private property, as far as practicable, agreeably to the desire of the LAW FORMS, &c. 413 petitioners, and, if practicable, at an elevation not exceeding five degrees, except at the cross- ing of ravines and streams, where, by moderate filling and bridging, the declination of the road may be preserved within that limit. Ordered, that the viewers " report at the next term, stating particularly who of them were present at the view, whether the road desired be necessary for a public road, (omit if a pri- vate road,) annex and return a plot or draft thereof, stating the courses and distances, (in words at length,) and noting briefly the improvements through which it may pass." In witness whereof, I have hereunto set my hand, and affixed the seal of the said court, this day of , Anno Domini one thousand eight hundred and Clerk. 78. RETURN OF THE JURY. To the judges of the court of Quarter Sessions of the Peace, in the within or annexed or- der named : We, the subscribers, or, &c., the persons appointed by the said court, to view and lay out the road therein mentioned, report, that having been first severally sworn or affirmed, in the manner and form prescribed by the said order, that all of us (or five of us, naming them,) having viewed the ground for the proposed road, and four tfus concurring, did lay out, and now return the same for a public (or private) road, begmning, &c., [here describe the courses and distances in words at length,] with reference to the improvements through which it passes, a plot or draft whereof is hereto annexed. Witness our hands and seals the day of , Anno Domini one thousand eight hundred and Or, having viewed, &c., the route of the proposed road as within directed, we (or, &c.) are of opinion that there is no occasion to lay out the same. Witness, &c. 79. A PETITION FOR DAMAGES. THE petition of the subscribers respectfully represents : That a public road or highway [or private road] was lately laid out and opened by order of this court from &c. to &c., which road is laid out and opened through the land of your petitioners, and by which they have sustained injury. They therefore pray the court to appoint persons to view the premises, assess the damages sustained, and report the same to the court at the next tern thereof. 80. ORDER OF COURT. At a court, &c. ON the petition of A. and B. setting forth that a public road or highway [or private road] has lately been laid out and opened by the order of the court, and praying the court to ap- point persons to view and assess the damages they have sustained by reason of said road passing through their lands : thereupon the court appoint A. B., &c., six disinterested per- sons, none of whom reside on their own land along the route of said road, [who being first severally sworn or affirmed to perform the duties with impartiality, and to the best of their judgments,] to view the premises, and if any five of them view the said road, and any four agree that the petitioners or any of them have sustained damages by reason of the said road passing through their lands, then to proceed to assess the same to each of the said petitioners, taking into consideration the advantages they may severally derive from the said road passing through their lands. Ordered that the petitioners give notice to one or more of the commissioners of the county aforesaid (or in case of a private road, to the parties interested. J It is further ordered, that the viewers state in their report who of them were present at the view; whether they were severally sworn or affirmed, and that they report at t^ie next term of this court. In witness, &c. 81. PRIVATE ROADS, PETITIONS, &C. This foTm of the order and other proeeediogs on application for private roads, will be the same as for public roads, except omitting in th^Vprder of the vsrords, " stating particularly whether they judge the same necessary fo^ a public or a private road." County Digest, 339. 82. PETITION FOR GATES ON A PRIVATE ROAD. To the judges, &c. ON the petition of A. B., C. D., setting forth that they labour under great inconvenience lor want of hanging a swinging gate or gates on a private road leading from to , and praying the court for leave to hang and maintain, at their own expense, a gate or gates across said road. Beport. We the subscribers appointed to view, &o., report that we, after being first severally sworn or affirmed, according to said order, viewed the said road as directed, and are of opinion 4U LAW FORMS, &c. that a gate may be hung upon the said road at , according to the prayer of the petition- ers, without much inconvenience to the persons using the said road. Witness our hands and seals, &c. Counly Digest, 340. 83. PETITION FOR VACATING ROADS. To the judges, &c. THE petition of the subscribers respectfully represents : That a road was formerly laid out by order of the court from to , in said county, beginning &c. (here set forth, in a clear and distinct manner, the situation and other circumstances of the road, and the parts which the applicants desire vacated,) which road your petitioners conceive has become useless, inconvenient, and burdensome. Your petitioners therefore pray the court that the same road may be vacated. 84. REPORT OF VIEWERS. WE, the subscribers appointed to view the road therein mentioned, report that in pursu- ance of said order, (having been severally sworn or affirmed as herein directed,) we have viewed the said road, and are of opinion that the same is (not) in our opinion useless, in- convenient and burdensome, and ought (mo/) therefore to be vacated. Witness our hands and seals this day of , A. D 85. ORDER. At a court, &c. THE persons appointed at sessions, A. D. , to view a road leading from, &c. to , &c., and to judge whether tlie same has become useless, inconvenient, and burdensome, having been severally sworn or affirmed, as within directed, report, that they have viewed the road therein mentioned, and are of opinion that it has become useless, in- convenient and burdensome, and ought to be vacated ; whereupon the court confirm the said report and order that the said road may be vacated. 86. FOR ANNULLING PROCEEDINGS HAD BEFORE THE ROAD IS OPENED. Petition. THE petition of the subscribers, being a majority of the original petitioners, respectfully represents : That a petition was presented to this court at sessions last, signed by youi petitioners, praying the court to appoint proper persons to view and lay out a road from to , which was accordingly done ; and the said viewers so appointed did view, lay out and return for ptiblic (or private) use a road, beginning, &c. which was, on due con- sideration, approved of and confirmed by the court; that the said road not yet having been opened, and it appearing to your petitioners to be useless, and if opened would become bur- densome — ^they therefore pray the court to appoint persons not residing on, or owning land on the route of the said road, to view the same, and make report according to law. 87. REPORT OF VIEWERS. WE, the subscribers, appointed to view the road herein mentioned, do report r^-That, in pursuance of the said order, having been severally sworn or affirmed, we have viewed the said road, and are of opinion, the same, if opened, will (or will not) be useless and bur- densome. 88. PETITION TO VACATE A STATE ROAD, SUPPLIED BY A TURNPIKE. To the judges, &c. THE petition of the subscribers respectfully represents : — That part of the road leading from to , in the township (_or townships) of and county aforesaid, has been supplied and rendered useless by a substantial and pemmient turnpike, made and completed agreeably to law, from to _ . They, therefore, pray the court to appoint persons to view the road, so supplied and ri^fbred useless, and make report to the court according to law. 89. PETITION FOR A REVIEW. To the judges, &c. THE petition of the subscribers respectfully showeth : — ^That a road hath been lately laid out, by order of the court, from, &c. (Aere set forth the road as reported by the original vievters,) which road, if confirmed by the court, will be very injurious to your petitioners. They, there- fore, pray the court Vn appoint proper persons to review the said road, &c., as in case of views. 90. PETITION FOR A ROAD ON A COUNTY LINE. To the judges, &c. THE petition of the subscribers respectfully represents : — That your petitioners laboui under great inconvenience for want of a public road or highway, to lead on the line which LAW FORMS, &c. 415 divides the said counties from in county to in county. Your petitioners, therefore, pray the court to appoint proper persons to view and lay oat the same according to law. 91. REPORT THEREON. WE the subscribers appointed within, and a similar order from the court of Quarter Ses- sions of county, to view and lay out the road therein mentioned, report, that, in pur- suance of said orders, having been severally sworn or affirmed, we have viewed and laid out, and do return, for public {or private) use, the following road, to wit: Beginning, &c. {here describe the courses and distances in words at length, with references' to the improvements through which it passes,) or that there is no occasion to lay out the same. 92. PETITION FOR A COUNTY BRIDGE. To the judges, &c. The petition of the subscribers respectfully showeth : That a bridge is much wanted over creek, at the place where the public highway to crosses the said creek, in the township of , in said county ; and that the erection of said bridge will require more expense than it is reasonable one or two adjoining townships should bear. They, therefore, &c., (as in the case of public roads,) pray the court to appoint persons to view the premises. 93. REPORT THEREON. WE, the subscribers, appointed to view the place proposed for a bridge, in the within or- der' mentioned, after being severally sworn or affirmed, as within directed, report, that in our opinion, a bridge over creek, at the place where the public highway to crosses the said creek, is necessary, and that the erecting of such a bridge would be attended with more expense than it is reasonable the said township, or two adjoining townships, should near. (If the viewers are of opinion that a change or variation in the route of the said road is necessary, add the following:) And we further report, that after examination, we are of opinion that a change or variation in the bed and route of the road would be an improvement, and saving of expense in the erection of said bridge, and, therefore, report, that the route of the road be changed in the following manner : {here particularly describe the change proposed, together with a map or plot thereof.) Witness our hands and seals, this day of , A. D. 1844. 94. PETITION FOR A BRIDGE ON A COl'NTY LINE. To the judges of the court, &c. The petition of the subscribers counties of and respectfully represent: That a bridge is much wanted over creek, being the line of the place where the public highway to crosses said creek, in the township of , in county, and in the township of , in county ; and that the erection of such bridge will require more expense tlian it is reasonable the said townships should bear ; your petitioners pray the court to appoint persons to view the premises, and take such order on the subjefet as is required and directed by the acts of Assembly in such case made and provided. 5. DUE BILL. •ft'ifiO 00 ^^^ °^ Lancaster, June 4th, 1844. I have this day made a full settlement of all accounts with A. B., and I acknow- ledge- myself to be indebted to him in the sum of two hundred and sixty dollars. (Signed,) • C. D. Such a due bill may be assigned by C. D., thus : " For a valuable consideration, I assign to E. F., all my right, title, and interest, in the above due bill, without recourse to me." (Signed,) A. B. Witnesses at signing, G. H. and I. J. Upon such a due bill, or upon such an Assignment of such a due bill, suit may be brought by the holder of the bill. 96. PROMISSORY NOTES. $560 30 Pittsburg, July 20, 1844. ' Ninety days after date I promise to pay to the order of K. L., five hundred and sixty dollars and thirty cents, for value received, without defalcation. M. N. Another Form. S320.40 Harrisburg, July 20, 1844. At the bank of Harrisburg, on the first day of October next, I promise to pay, or cause to be paid, to O. P., or order, three hundred aiid twenty dollars and forty cents, for value received, without defalcation. Q, R. 416 LAW FORMS, &c. If either of the foregoing notes is passed away, it must be endorsed by the per- son in whose favour it is drawn ; that is, he must write his name on the back of the note, and thus authorize the person to whom he thus assigns it, to receive the money, or bring suit for it if not paid at maturity. Another Form, lli475 25 Northumberland, July 20, 1844. ! ' Sixty days after date I promise to pay to S. T., four hundred and seventy-five dollars and twenty-five cents, for value received. V. W. This note cannot be assigned, because the drawer of the note does not promise to pay to any person but S. T. the amount of the note. If V. W. were to en- dorse the above note, and give it to X. T., and X. Y. were to bring suit, in his own name, he could not recover, because the note is not payable to order. 97. RECEIPTS. Bedford, July 10, 1844. Received from A. B., the sum of two hundred and ten dollars, in full for a horse and a pair of oxen, which I this day sold and deliver to him. C. D. $310.00 A Form for Rent. Sunbury, July 10, 1844. Received from E. F., one hundred and twenty dollars, being in full for one quarter's rent of a dwelling-house, No. 10, Smith's street, rented by me to him as per agreement, which payment pays his rent in full to this day. G. H. $120.00 When the money is paid by a third person. Greensburg, July 10, 1844. Received from I. J., by K. L., the sum of three hundred and fifty dollars, for goods sold and delivered by me to said I. J., and which Is in full of all accounts between us. M. N. $350.00 A receipt in full does not foreclose all inquiry. If it can be shown that there was fraud, misrepresentation, or mistake, by which more or less money was paid than ought to have been paid, an inquiry will be gone into, to the end that right and justice may be done. When the money is for the use (f another. Downingstown, May 4, 1844. Received from O. P., the sum of sixty dollars and ten cents, for work and labour done and services rendered by Q. R. for the said O. P. S. T. $60^10^ For Interest paid on a Bond, York, May 20, 1844. Received from U. W., the sum of thirty dollars, for one year's interest of $500.00, due me the first day of May inst., on a bond which I.hold of the said U. W. X. Y. $30.00 For a Promissory Note. Reading, May 14, 1844. Received from A. B., his promissory note, payable to myself or order, for five hundred dollars, for a quantity of lumber bought from me by the said A, B., which note, when paid, will be in full of all demands. C. D. $500.00 Fur Cattle, ^c,,put out to winter. Tinicum, November Z, 1844. Received this day from G. H., by E. F., six oxen and four cows, [or whatever other ani- mals may be received,] which cattle I promise to keep through the winter, feeding them on good hay, &c., and to return them on the, first day of April, A. D. 1844, he first paying me four dollars each for the keep of said cattle. I. J, When such receipt as the above is given, which partakes of the character of an agreement, the person who gives it should keep a copy, and have it compared and witnessed. LAW FORMS, &.C. 417 98. LAST WILL AND TESTAMENT, Will and Testament is a voluntary disposition of what a person wishes to be done respecting his estate, real and personal, sifter his decease. Every person capable of binding himself by contract, is capable of making a will ; but no will is effectual unless the testator were, at the time of making the same, of the age of twenty-one years, and upwards. Purd. 1168. Dunl. 571. By the act of 10th April, 1848, a married woman may dispose, by her last will, of her separate properly, whether the same accrues to her before or during coverture, provided the said will be executed in the presence of two or more witnesses, neither of whom shall be her husband. Dunl. 1125. Where a single woman makes a will, and afterwards marries, such marriage is a revocation of the will. Wills and testaments are of two kinds, viz., written and verbal, or nuncupative, . which is where a person being sick, and for fear lest death, want of sufficient speech or memory, should come so suddenly upon him that he should be pre- vented-, if he waited, from writing his testament, desires his friends to bear wit-- ness of his last will, and which must be in the presence of three persons, and ihen declare the same before them ; such declaration being proved by two of the wit-- nesses after his decease, is reduced, to writing by the ordinary register of wills, and is as valid as if il had been originally written by the testator, as far as relates to his personal property; but lands are only devisable by a will and testament, put in writing in the lifetime of the testator. Every will must be in writing, and unless the person making the same be pre-- vented by the extremity of his last sickness, must be signed by him at the end thereof, or by some person in his presence, and by his express direction; and in all cases, must be proved by the oaths or affirmations of two or more competent wit- nesses, otherwise it will be of no effect. Purd. 1168. Dunl. 571. The making 't( a mark or cross at the end of the will, is a sufiicient signing. Dunl. 1 106. Where tfie testimony of the subscribing witnesses cannot be had, evidence of their hand- writing will suffice. 6 JJarr, 409. As to what is a sufficient signing at the end of a will, see 1 Eng. L. Sf Eq. R. 633-6. 6 Barr, 409. 3 Am. L. J. 493. If two wills are found, and it does not appear which was the former, both will, be void ; but where there is any date, the latter revokes the former. t 99. FORM OF WILLS AND TESTAMENTS. IN^ the name of God, amen. I, A. B., of , in the of , merchant, being- in good health of body, and of sound and disposing mind and memory, do make and declare this to be my will and testament, in manner following, that is to say, I order that all my just debts, funeral expenses, and charges of proving this my will, be in the first place fully paid and satisfied, and after payment thereof and every part thereof I give and bequeath to the sum of ; I give and bequeath unto the sum of , the same to be paid him on his attaining the age of twenty-one years ; I give and bequeath unto the sum of , to be paid her at her attaining the age of twenty-one years or day-of marriage, which shall first happen. And all the rest, residue, and remainder of my goods, chattels, debts, ready money, effects, and other my estate whatsoever and wheresoever, both real and personal, I give and bequeath the same and every part and parcel thereof unto executors, administrators, and assigns. And I do hereby nominate, constitute, and appoint of and of , executors of this ray will, hereby revoking and making void all former and other wills by me at any time heretofore made, and declare this only to be my last will and testament. In witness whereof, I, the said testator, have to this my last . will and testament set ray hand and seal, the day of , A. D. 1 844. [seal.] Signed, sealed, published and declared by the said testator as and for his last will ' and testament, in the presence of us, who in his presence and at his request, and in the pre- - sence of each other, have subscribed our names as witnesses thereto. A. B., C. D., and E. F. 100. PREAMBLE TO. WILLS. j1 preambk to a will of a person in health. In the name of God, amen. I, A. B., of, &c., being in good health of body and of sound ' and disposing memory, (praised be God for the same,) and being desirous to settle my worldly affairs, while I have strength and capacity so to do, do make and publish this my last will 2b 418 LAW FOUMS, &c. and testament, hereby revoking and making void all former wills by me at any time hereto- fore made, and first and principally I commit my soul into the hands of my Creator who gave it, andniy body to the earth to be interred in the burying-ground of B , &c., at the dis- cretion of my executors hereinafter named ; and as to such worldly estates wherewith it hath pleased God to intrust me I dispose of the same as followeth. Imprimis, &c. j3 prcambk to the will of a person thai is sick and weak, IN the name of God, amen. I, A. B., of, &c., being sick and weak in body, but of sound mind, memory, and understanding, (praised be God for it,) considering the certainty of death and the uncertainty of the time thereof, and to the end I may be the better prepared to leave this world whenever it shall please God to call me hence, do therefore make and declare this my last will and testament in manner following, (that is to say :) first and principally I codit imend my soul into the hands of Almighty God my creator, and as to, &c. Another preamble revoking all former wills. THIS is the last will and testament of me, A. B., made the day of , in the ■year . I do hereby revoke all former wills by me at any time heretofore made, &c. ,101. WILL BEQUEATHING PORTIONS TO SEVERAL CHILDREN, AND CONTAINING AN APPOINTMENT OF GUARDIANSHIP. IN the name of God, amen. I, A. B., of, &c., do make this my last will and testament as follows, (that is to say:) my desire is to be buried with as little expense as decency will permit, and that all my debts and funeral expenses be paid as soon after my decease as con- -veniently may be. I give and bequeath all my messuage, lands, tenements, and heredita- ments whatsoever, situate, lying, and being in the county of, &c., other than, and except all those three fields or closes of land, meadow or pasture lying and being, &c., which I pur- chased of S. B., with their appurtenances, unto my dear wife, J. B., for and during her life; and from and after her decease I give and devise the same to my eldest son W. B., and his heirs : And I give all the rents which shall be due and owing to me at my death, for the -aforesaid messuage, lands, tenements, and hereditaments, herein-before given to my said wife for life, and after her death to my son W. and his heirs, unto my said wife J. B., for her own use. I give and devise all and every one of my messuages, lands, tenements, and hereditaments whatsoever, which are situate, lying, and being in . , in the said county of ■ C, with their appurtenances, to my son T. B. and his heirs, chargeid and chargeable nevei- itheless, with the annuity or yearly sum of , to be issuing and payable out of me same messuages, lands, tenements, and hereditaments to my brother J. B., during his life, by two even and equal half-yearly payments, in every year, the first of the said half-yearly pay- ments to be made at the end of six calendar months next after my decease. I give and ' bequeath to my said son T. all the rents that shall be due and owing to me for the said last mentioned messuages, lands, tenements, and hereditaments at my decease. I give and ' devise all the aforesaid three fields or closes of land, meadow or pasture, which I purchased of the said S. B., to my son H. B. and his heirs. I also give to him, my said son H., all the rents which shall be due and owing to me for the same at my death. I give all my ' household goods and furniture, plate, china-ware, household linen, prints, pictures, and ' household utensils in my house in aforesaid, and my house in L. to my said wife for her own use. I also give to my said wife the sum of $ , to be paid to her as soon as it ■ can conveniently be raised out of my effects, and interest for the same ; in the mean time, from the end of one calendar month next after my decease, at the rate of $ , per cent, per annum. I give to my son W. B. the like sum of $ , and interest for the same at the rate aforesaid, from the end of one calendar month next after my decease. I give to my daughter H. B., to be paid to her within two years next afler my death, the like sum of ; $ , and interest for the same in the mean time, at the rate aforesaid, from the end of ■ one calendar month next after my decease. I give to my said son T. B., the sum of 9 , to be paid to him, when his present articles of apprenticeship expire. I give to my daughter D. B. the sum of $ , to be paid to her within four years next after my death, and interest for the same, in the mean time, at the said rate of $ , percent, from the end of one calendar month next after my decease, to be paid to her guardian, during her infancy, and applied for her maintenance during her minority. I give to my daughter M. L. the like sum of $ ■ , to be paid to her when she attains the age of twenty-one years, and interest for the same, in the mean time, at the said rate of $ , per cent, from the end of one calendar month next after my decease, to be paid to her guardian, and applied for her maintenance, during her ininority. I give the sum of $ , and interest for the same, at the said rate of $ , per cent., from the end of one calendar month next after my decease, unto Mr. R. Y., of, &c., and Mr. T. C. T. of, &c., their executors, ad- ministrators and assigns, upon the trust, to pay the interest of the said sum of $ ' , to my daughter J. L., for her sole and separate use during her life, exclusive of her husband, LIBEL, 419 and for which her receipt alone shall he a sufficient discharge, and from and after the de- cease of ray said daughter J. L., then as to the said sum of , in trust for her child or children, living at her death; if more than one, equally to be divided between or amongst them share and share alike. But if she shall not have a child living at her death, then my will is that the said sum of $ shall sink into, and become, and be part of the residue of my personal estate. And as to all the rest and residue of my personal estate and effects whatsoever, which shall remain after payment of my debts and funeral expenses, and the aforesaid specific and pecuniary legacies and interest, I give and bequedth the same to my said son W. B., his executors, ana administrators. And I give the custody, tuition, and guardianship of the persons of such of my children as shall be under the age of twentyjone years, at the time of my death, to my said wife J. B. during their. respective minorities. And I nominate and appoint my said wife executrix of this my last will; and my will is, and I do hereby direct that all the rents of the messuages, lands, tenements and heredita- ments which are herein-before given to my said sons T. B. and H. B., respectively, shall be paid to their guardians during their respective minorities, and applied for their mainte- nances and support. In witness, &c. 102, WILL WHEREBY THE TESTATOR ORDERS HIS PERSONAL ESTATE TO BE AP- PRAISED AND DIVIDED, &C., AFTER DEBTS,. &C., PAID, I will that all such just debts as shall be by me owing at my death, together with my funeral expenses, and all charges touching the proving of, or otherwise concerning this my will, shall, in the first place, out of my personal estate and effects, be fiilly paid and satisfied j and from and after payments thereof, and subject thereunto, then my will is, that all the re- sidue of my goods, chattels, merchandises, and household furniture shall be indifferently appraised, and after such appraisements made, that the same shall he divided into three equal parts, one equal third part Whereof I give and bequeath unto my loving wife A. One other equal third part whereof I give and bequeath unto and amongst my children B. C. and D., to be equally parted and divided amongst them share and share alike, and to be paid and delivered unto my said sons at their several respective ages of twenty-one years, and to my said daughter at her age of twenty-one years, or day of marriage, which shall first happen^ And my will and meaning is, that in case any of my said children shall depart this life, before such time as the part or portion of him, her, or them so dying shall become payable, then* and in such case, the part, or portion, of her or them, so dying, shall go and be equally divided amongst the survivor or survivors at the time aforesaid. And as to the remaining third part thereof, I will, give and bequeath the same as follows, viz. : I give and Lequeath the same unto my sons the said equally to be divided amongst them share and share alike, to be paid, &c. ; and I make and ordain B, T, and H. T. executors of this my last will and testament, &c. ■I. Constitutional provision respecting I II. Judicial authorities, libels. I III. A warrant for a libel and proceedings. I. " The printing-presses shall be free to every person who undelrtakes 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 invEUuable rights of man, arid every citizen may freely speak, write, and print, on any subject, being responsible for the abuse pf that liberty. In prosecution for the publication of papers investigating the official con- duct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evideijce. And in all in- dictments for libels the jury shall have a right to determine the law and the facts under the direction of the court as in other cases," Const, of Pennsylvania, art, IX, sect. 7. [This important section, short as it is, may be divided into two parts — the first is declara- tory, and the second, enactments founded on the rights previously declared. The enactment clauses refer Wholly to criminal proceedings, and 'have no reference to or bearing upon civil actions brought for the recovery of damages. In such actions the defendant is always allowed to give the truth in evidence, In criminal cases every defendant, under this con- 420 LIEN. stitutional proviiion, who is charged with a libel for having published any thing " investigat- ing the official conduct" of men in public stations, or " where the matter published is pro- per for public information," has also a constitutional right to give the truth in evidence.] U, 1. Libels, taken in their largest and most extensive sense, signify any writing, pictures, or the like, of an immoral and illegal tendency. Libels on individuals are defined to be malicious defamations, expressed either in writing or by printed signs and pictures, tending to blacken the memory of one that is dead, or the repu- tation of one that is ahve, and thereby exposing him to public hatred, contempt, and ridicule. 4 Bl. Com. 150. 2. Any malicious printed slander which tends to expose a man to contempt, hatred, or. degradation 'of character, is a libel. To print and publish that A. had been de- prived of a participation of the chief ordinances of the church to which he belonged, by reason of his infamous and scandalous assertions, is a libel. 5 Binn. 340. 3. The communication of a Ubel to any one person is a publication in the eye of the law, and, therefore, the sending an abusive private letter to a man is as much a libel as if it were pubhcly printed, for it equally tends to a breach of the peace. 4 Bl. Com. 150. 4. For the same reason it is immaterial at common law with respect to the essence of a Ubel, whether the matter be true or false, since the provocation and not the falsity is the thing to be punished criminally. Ibid. 151. 5. Christianity is part of the law of Permsylvania, and maliciously to revile it is a criminal offence. It has long been firmly settled that blasphemy against the deity generally, or an attack against the Christian religion indirectly, for the purpose of exposing its doctrines to ridicule or contempt, is indictable and punishable as a tem- poral ofence. The principle is, that the pubUcation, whether written or oral, must be maUcious, and designed for that end and purpose. 11 S. fy B. 394. 6. Where a man pubHshes a writing which upon the face of it is hbellous, the law presumes that he does so with that malicious intention which constitutes an offence, and it is unnecessary on the part of thfe prosecution to give evidence of any circumstance from which mahce may be inferred. In such case it is incumbent upon the defendant, if he seeks to discharge himself from the consequences of the publication, to show that it was made under circumstances which justified it. Bos. Crim. Law, 535. III. A Warrant for publishing a Libel. COUNTY OP WESTMORELAND, ss. BTJie ®aminonh)ealtS of iUcnit^jIbanfa, To any Constable of the said county, greeting : YOU are hereby commanded to take tha body of A. B., if he be found in the said county, and bring him before J. R., one of our justices of the peace in and for the said county, to answer the commonwealth upon a charge founded on the oath of C. D. of having, in a news- paper published in Greensburgh, on the third of June inst., called the " Paul Pry," pub- lished a false, scandalous, and malicious libel, of and concerning the said C. D., and farther to be dealt with according to law. And for so doing this shall be your warrant. Witness the said J. R., at Greensburgh, who has hereunto set his hand and seal, the eighth day of June, in the year of our Lord one thousand eight hundred and forty-four. J. R., Justice of the Peace. [seal.] If, on hearing, the justice shall be satisfied that a libel has been published, and published by the defendant, he should bind him over to appear at the next court of Quarter Sessions of the said county, and in default of bail commit him to thp county prison. The witnesses, as in all other cases where there is a binding over for "ial, should be held in recognisances to testify. 1. A lien is simply a right, at common law, to possess and retain property, until some charge attaching to it is paid or discharged. It generally exists in favour of artisans and others, who have bestowed labour and service on the pro- LIMITATION OF ACTIONS. 421 perty in its repair, improvement, and preservation. It has also an existence m many other cases, by the usages of trade. Crons on Liens, 2. 2. The evidence to establish a rigfht of lien is either of an express agreement between the parties in the particular instance, or is presumptive, being founded either upon the mode of dealing between the same parties in former instances or on the general usage and custom of the particular trade. Starkie Ev. 883. 3. A workman who bestows labour on a chattel for a stipulated sum, may detain the chattel till the price be paid, although it be delivered at different times, if the work to be done under the agreement be entire, {p Moore and Scott, 180.) Seats, as it seems, where the parties contract for a mode or time of payment in- consistent with the workmen's claim to the possession. Ibid. 4i Wherever the' law has given a lien upon any goods or other things of value, then the retaining of them shall not subject the person to an action of trover. 4 Binn. 221. 5. One having a lien may relinquish it by his conduct. 4 Y. 456. 6. Wharfingers hav6 a lien on goods brought to their wharves for the balance of a general account. 1 -Esp. 109. 7. A miller has a lien upcm the corn ground by him. 5M. ^ S. 180. A ship- wright upon a ship for repairs. (4 B, ^ A.) A tailor on the cloth delivered to and made up by him. (3 M. Sf S. 169.) And, in general, where a person bestows his labour upon a particular chattel delivered to him in the course of his business, he has a lien upon such chattel for the amount of his charge. 8. One who has the exclusive custody of a stock of goods of another, for the purpose of carrying on the business of a retail store, and during its continuance ijecomes personally liable, and pays for goods purchased to replenish the stock, does not thereby acquire a lien on the goods to secure him against such liabilities and advancements. 9 TV. 512. 9. It is not to be doubted that the law of particular or specified lien on goods in the hands of a tradesman or artificer for the vvork done on therh, is a part of the common law of Pennsylvania. ^ W. 8f S. 395. 10. As an exclusive right to the possession of the thing is the basis of such a lien, it exists not in favour of a journeyman or day-labourer. Ibid. (For a lien of common carriers, see Common Carriers. Lien of innkeepers, &c., see Innsand Taverns. Lien of judgments, see Judgment. For liens of mechanics- on buildings, see Mechanics' Lien.) Himitiitioit of ^ctionsi* I. Limitation of suit in actions on the case, trespass, replevin, rent; and inactions for as- sault, battery, false imprisonncient, slander, &c. II. Limitation in actions on promissory notes. III. Limitation in actions on penal statutes. IV. VII. Limitation of prosecutions for mis- demeanors. V. In actions against insolvent corporations. VI. In actions for libel. VIII. Judicial decisions and authorities. I. Act of March 27, 1713. Purd. 768. Durd. 55. Sect. I. All actions of trespass quare clausum fregit ; all actions of detinue, trover, and replevin, for taking away goods and cattle ; all actions upon account and upon the case, (other than such accounts as concern the trade of merchandise-between merchant and merchant, their factors and servants ;) all actions of debt grounded upon any lending or contract without specialty ; all actions of debt for arrearages of rent, except the proprietary's quit-rents ; and all actions of trespass, of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought at any time after the five and twentieth day of April, which shall be in the year°of our Lord one thousand seven hundred and thirteen, shall be commenced and sued within the time and limitaltion hereafter expressed, and not after ; that is to say, the said actions upon the case, other than for slander, and the, said actions for account, and the said actions for trespass, debt, detinue, and replevin, for goods or cattle, and the said actions of trespass quare clausum fregit, within six years next after the 422 LIMITATION OF ACTIONS. cause of such actions or suit, and not after ; and the said actions of trespass, of as- sault, menace, battery, wounding, imprisonment, or any of them, withm two years next 'after the cause of such actions or suit, and not after; and the said actions upon the case fpr words, within one year next after the words spoken, and not after. 1 fi. 135. 13 S. SiR.93. ■ • , „ Sect. V. Provided nevertheless, that if any person or persons, who is or shall be entitled to any such action of trespass, detinue, trover, replevin, actions of account, debt, actions for trespass, for assault, menace, battery, wounding or imprisonment, actions upon the case for words, be, or at the time of any cause of such action given or accrued, fallen or come, shall be, within the" age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond sea, (1) that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are hereby before limited, after their coming to or being of full age, disco- verture, of sound memory, at large, or returning into this province, as Other persons. II. Act op May 28, 1715. Purd. 770. Dunl. 61. Sect. VI. All and every such actions on such promissory notes shall be com- menced, sued and brought, within such time as is lippointed for commencing or suing actions upon the case, by an act of this province* passed in the eleventh and twelfth years of the late <^een Anne, entituled "An act for limitation of actions," [March 27th, 1713.] III. Act op March 26, 1785. Purd. 771. Dunl 150. Sect. VI. AU actions, suits, bills, indictments, or informations, which shall be brought for any forfeiture upon any penal act of Assembly made or to be made, whereby the forfeiture is or shall be limited to the commonwealth only, shall here- after be brought within two years after the offence was committed, and at no time afterwards ; and all actions, suits, bills, or informations, which shall be brought foi any forfeiture upon any penal act of Assembly made or to be made, the benefit and suit whereof is or shall be by the said act limited to the commonwealth, and to any person or persons that shall prosecute in that behalf, shall be brought by any person or persons that may lawfully sue for the same, within one year next after the oifence . was committed ; and in default of such pursuit, then the same shall be brought foi the commonwealth, at any time within one year after that year ended; and if any action, suit, bill, indictment, or information, shall be brought after the time so limited, the same shall be void; and where a shorter time is limited by any act of Assembly, the prosecution shall be within that time. (2) IV. Act op April 10, 1848. /Dunl. 1116. Sect. I. From and after the passage of this act, no indictment for misdemeanor, £xcept forgeries and perjuries, shall be commenced or prosecuted in any of the courts of this commonwealth, unless the same shall have been commenced and prosecuted within five years from the time at which the alleged offence shall have been commit- ted ; ■ Provided, that nothing herein contained shall extend in any way to persons fleeing from justice. (1) The act of 30th July, 1842, {Purd. 773, Dunl. 985,) declares that the provisions of this act shall not thereafter extend to cases where the defendant or defendants, in any suit, shall be heyond sea, at the time such cause of action accrued, provided, suit be brought within the time limited by said act, afler the return of the defendant or defendants from beyond sea. And by the act of 16th April, 1849, (,Dunl. 1198,) the provisions of the fifth section of the act of 1713, bo far as the same save rights of action to any person or persons beyond the sea, are repealed, ex- cept so far as respects citizens of the United States of America. (2) By the act of 21st April, 1841, {Purd. 772, Vunl. 936,) the provisions of this section are extended to actions for breach of the usury laws, and to actions for the penalty for issuing small notes. By act of 16th July, 1842, {Purd. 772, Durd. 978,) it is extended to actions for «J1 fines, forfeitures, and amercements, which by law, are directed to be paid to the treasurers, or county commissioners of the respective counties, for the use of the counties : and by act of 24th Febru- ary, 1845, {Purd. 773, Durd. 1032,) to all fines and forfeitures, payable either in whole or in part, to the use of the respective counties. LIMITATION OF ACTIONS. 423 Jlct of April 16, 1849. Dunl 1198. Sect. VII. That the first section of an act, entitled " A further supplement to the penal laws of this state," be so altered as to limit all prosecutions for fornication and bastardy, to the term of two years instead of five years, as provided in said section. V. Act of April 25, 1850. Pamph. 570. Sect. VII. The proviaons of the act passed the 27th March, 1713, entitled " An act for the limitation of actions," shall not hereafter extend to any suit against any corporation or body politic which may have suspended business, or made any transfer or assignment in trust for creditors, or who may have at the time and after the accru- ing of the cause of action, in any manner ceased from or suspended the ordinary busi- ness for which said corporation was created. VI. Sect. XXXV. The limitation provided in the last paragraph of the first sec- tion of the act, entitled " An act for limitation of actions," passed the 27th March, 1713, to which this section is supplementary, in relation to words spoken, shall be held to extend to all cases of slander or libel, whether spoken, written or printed. VII. Sect. XXXVI. The provisions of the 7th section of the a«t of 16th April, 1849, entitled " A supplement to the act relating to lunatics and habitual drunkards, to punish aldermen and justices of the peace for misdemeanors ; relating to arbitra- tions in the district court in the city and county of Philadelphia; relative to deeds of assignment ; relative to judgment liens ; relating to limitation of actions ; and relating to liens and terre-tenants ; and for the more effectual punishment of the crime of iirson," be and the same are hereby extended to prosecutions for adultery, except where the defendant may have absconded and remained absent from the state, in which case such absence shall be deducted from the period of limitation. VIII. 1. Limitation is a certain time assigned by statute, within which an action must be brought. Terrms de la Ley, 417. 2. The act of limitations only takes place from the time when the right of action accrues, and not from the time of making the promise ; and whenever there is a fraud, from the time of its discovery. 4 Y. 109. 3. If the defendant acknowledge the principal debt, but dispute the interest, it takes the debt out of the statute of limitations. 3 S. Sf R. 500. 4. If a promise to pay a debt barred by the statute, be conditional, the remedy is not revived unless the condition be performed. 2 jBr. 16. 5. An acknowledgment, to take the case out of the statute of limitations,, must be unqualified ; if the defendant, when he admitted the items of the plaintiff's demand, still claimed a balance due him, after settlement of all accounts, that is not sufficient to take the case out of the statute. 12 S. 8{ R. 393. 6. The time required to bar a claim, by the act of limitations, is not enlarged by a transfer of the claim ; all the successive owners of it have together only the time which the original claimant would have had. 2 R. 311. 7. An executor or administrator, sued in his representative character, for a debt due by the decedent, may plead the statute of limitations as a bar to the action, al- though such executor or administrator may have made such an acknowledgment of the debt as, in the case of the person sued, would be sufficient to take the case out of the statute. 1 TO. 66. 7 W. 420. 8. By an express provision of the insolvent law, the statute of limitations does not run against debts due by an insolvent debtor. 1 P. R. 322. See 4 W. 430. 9. The court will never open a regular judgment, to let in the plea of the statute of limitations. 1 D. 239. 2 D. 264. 2 R. 105. 10. The acknowledgment of a debt, even after suit brought, takes it out of the statute. 1 D. 165, 239. 11. The act of limitations only takes place from the time when the right of action accrues, and not from the time of making the promise ; and wherever there is a fraud, from the time of its discovery. 14 S.^R. 328. 12. An acknowledgment of a subsisting debt, such aS will take a case out of the operation of the statute of limitations, must be unqualified, and unaccompanied by any intimation that it would not be paid. 6 W. 44. 2 Harris, 479. Ibid. 322. 424 LIMITATION OP ACTIONS. 13. The acknowledgment of a debt, to preclude the operation of the statute of lunit- ations, must be so distinct and palpable in its extent and form, as to preclude hesitek- tion about the debtor's meaning. 6 W. 219. 3 Btirr, 416. But it need not refer to the amount of the debt. 2 Harris, 275. 14. > A discharge under the insolvent law does not take from the debtor the pro- tection of the statute of limitations. 4 W. 430. 15. An acknowledgment, such as will relieve a demand from the operation of the statute of limitations, must be so precise and distinct in its extent and form, as to pre- clude hesitation about the meaning of the party making it. 10 W. 172. 16. The words "beyond sea," in the act of 1713, must be taken to mean out of the limits of the United States. Q S. 8f R. 288. 17. An endorsement on a note, of a payment on account, in the handwriting of the holder, proved to have been made within six years from the date of the note and time of suit brought, is evidence which will prevent the operation of the statute of limita- tions. IW.SfS. 243. 18. Where there are mutual accounts between parties, the items of credits and charge in such accounts, within six years before the commencement of the action, are deemed equivalent to a subsequent promise reviving the debt. Ibid. 467. 19. An admission by a defendant that the debt for which he is sued was not paid, accompanied by the declaration that he would plead the statute of limitations, will not take the case out of the operation of the act. 2 W. Sf S. 137. 20. Where all the items of an account are all on one side, the statute is a bar to all claims above six years' standing. Ibid. 21. If plaintiff be nonsuited after the six years expu-e, the statute is a bar to an- other action for the same cause. 10 S. Sf R. 236. 22. A debt barred by the act of limitations, is not revived by a clause in a will, ordering all the testator's just debts to be paid. 1 Binn. 209. 9 Mass. 62. 23. The act of liinitations does not include bonds and specialties, (instruments under seal,) but on the principle on which that act was passed, the law will presume pay- ment after a certain length of time has elapsed, generally about twenty years without a demand made ; though this length of time is only a circumstance for the jury to found a presumption upon, and is liable to be repelled by evidence. 1 Y. 344. ( 24. Endorsements and payments upon a bond, in the handwriting of the obligee, furnish no evidence of the fact of payment, such as will avoid the effect of the lapse of time which raises a presumption of payment of the bond, unless such endorsements must necessarily have been made before the lapse of that time which raises the pre- sumption of payment. 5 W. 8^ S. 331. 25. 'A legacy in trust is not within the act of limitations, but, after a length of time, payment wUl be presumed ; yet such presumptfon may be rebutted by other dr- cumstances. 2 F. 268. 5 fV. 225. 26. The exception, in the statute of limitations, of merchant's accounts, extends only to cases where there are mutual accounts, and reciprocal demands, between two persons ; it does not apply to an account where the demand is altogether on one ade, though payments on account have been made. 17 S. Sf R. 347. 27. A promise, before the statute has completed the bar, is valid, being founded on the consideration of the injury to the creditor, by permitting him to repose on such promise ; and, like the acknowledgment by payment of interest, such new promise will preclude the promissor from availing himself of the time then elapsed as a bar by the statute. 5 Barr, 225. 9 Barr, 258. 28. A statement of a debt in the schedule of an insolvent, is not such an acknow- ledgment as will take the case out of the statute of limitations. 10 Barr, 129. 29. The statute of limitations is a good plea, in an action of assumpsit by a justice of the peace, for fees due him. Ibid. 233. 30. Where an account of sales is rendered, and the consignor makes no objection for more than nineteen years to the items of the account, it becomes an account stated, and is not within the exception of accounts " between merchant and merchant, their factors or servants," in the statute of limitations. 1 Harris, 310. 31. The defendant having pleaded the statute of limitations, the plaintiff replied that the cause of action related to merchants' accounts, on which issue was joined : the MALICIOUS MISCHIEF. 425 evidence proving that there had been an account stated, the defendant is entitled to • a verdict; for accounts when stated cease to be merchants' accounts within the excep' tion of the statute. 7 Barr,2Sl: 32. To constitute mutual accounts, there must be transactions producing reciprocal demands : hence, where goods are sold to be paid for in other goods, of which more are delivered than are required for payment, the transactions do not make a case ef mutual accounts. Ibid. 381. 33. The statute of limitations begins to run in favor of an attorney from the time the client had notice of his receipt of the money ; and where damages are claimed for negligence in releasing a lien, from the time the client knew of the release. Ibid. 27. 34. Part payment as an acknowledgment of a debt, made by the principal within six years, is, in contemplation of law, a payment and acknowledgment by the surety, so as to take the case out of the statute, as to the latter. 8 Barr, 337. 85. A prOnuse to a third person is sufficient to revive a debt barred by the statute of limitations. Wells v. Pyle, District Court, Phila., December 22, 1849. Bright. Dig. 309. 36. The statute of limitations is not a good plea to a declaration in assumpsit alle^ng that defendant was plaintiff's factor and servant and that the plaintiff had entrusted to him certain goods in that capacity to sell and dispose of, and a promise to render an account. Marseilles v. Kenton, District Court, Phila., March 29, 1851. s. p. 5 Crunch, 15. 37. Certain salt, which A. had contracted to sell to B., having been destroyed; in November, 1831, B. demanded its delivery : negotiations took place as to whether B. was entitled to compensation, and continued till 1838, when A. finally refused com- pensation ; soon after which B. brought his action : — held, that the action was barred by the statute. 1 Eng. L. ^ Eq. R. ii. 38. To take a case out of the operation of the statute of limitations, the acknow- ledgment must contain an unqualified and direct admission of a previous debt which the party is willing to pay, on demand, without restriction or condition. Bogees, J. 2 flams, 479. I. Acts of Assembly. I III. Mdicioos mischief a,t common law. II. A warrant for malicious mischief. ' I. Act of March 21, 1772. Purd. 790. Dunl. 110. Sect. III. If any person or persons shall maliciously and voluntarily break or take off from the door of any inhabitant within this province, any brass or other knocker affixed to such door, or shall maliciously or voluntarily cut, break, or other- wise destroy any leaden, tin, or copper spout, or any part thereof affixed to any such house, every person so offending, being thereof legally convicted, shall forfeit and pay the sum of twenty-five pounds for every such knocker or spout so broken or taken away, or cut or otherwise destroyed. Sect. IV. If any person or persons shall maliciously or voluntarily break, take down, destroy, or deface any sign, put up by any inhabitant of this province to de- note his, her, or their place of abode, occupation, business, or employment, every such person or persons so offending, being thereof legally convicted, shall forfeit and pay the sum of ten pounds for every such oflfence, or be publicly whipped on his, her, or their bare backs, with fifteen lashes w-ell laid on. (1) ^ct of March 27, 1824. Purd. 1156. Dunl. 437. Sect. I. From and after the passage of this act, any person or persons who shall wilfully and maliciously break, cut, or otherwise injure or destroy any grape-vines, growing, or cultivated, in any vineyard within this commonwealth, shall be deemed guilty of malicious mischief, and be liable to indictment in the court of Quarter (1) The punishment of this offence is now changed to confinement at hard labour. 426 MALICIOUS MISCHIEF.- Sessions of the county wherein the said offence shall have been committed ; arV being duly convicted thereof, shall pay a fine, in the discretion of the court, of not less than flVe dollars, nor more than one hundred dollars, and be committed to the jail of the proper county for a term not less than one nor more than twelve months, and- be clothed, fed, and treated as persons convicted of larceny. Act of March 27, 1819. Purd. 943. Dunl. 346. Sect. I. If any person or persons shall wilfully or maliciously take down, in- jure, remove, or in any manner damage or destroy any flag, flag-staff, beacon^ buoy, or other way-marks or water-marks, which now or hereafter may be put up, erected, or placed in any of the streams that are or may be declared public highways within the jurisdiction of this commonwealth, under the direction or by order of any commissioners, appointed, or hereafter to be appointed, to superintend the expendi- ture of any appropriation made by the legislature for the improvements of the navi- gation of any of the said streams, shall, upon due proof, made in the usual manner before any court of Quarter Sessions having competent jurisdiction, and on convic- tion thereof, forfeit and pay for every such offence any sum not less than twenty dollars, nor more than two hundred dollars, and be liable to imprisonment for any period not exceeding six months ; and the fines and forfeitures so accruing, shall be paid into the treasury of the proper county, and so much thereof as will be neces- sary to replace or repair the flag, flag-staff, beacon, buoy, or other way-mark or water-mark, so destroyed or injured, shall be applied to that purpose. Act of April 5, 1849. Dunl. 1155. Sect. II. Any person who shall wilfully destroy, mutilate, deface, injure or re- move any tomb, monument, grave-stone or other structure, placed in any cemetery or grave-yard appropriated to, and used for the interment of human beings, within this state, or shall wilfully injure, destroy or remove any fence, railing or other work for the protection or ornament of such places of interment, or shall wilfully destroy, cut, break or remove any tree, shrub or plant within the limits of said places of in- terment, or shall within the same shoot or discharge any gun or other fire-arms, or shall open any tomb or grave within the same, and clandestinely remove or attempt to remove any body or .remains therefrom, (2) shall be guilty of a misdemeanor, and shall, upon conviction thereof, before any justice of the peace of the county where the said offence is committed, be punished by a fine, at the discretion of the justice, according to the aggravation of the offence, of not less than one or more than fifty dollars, for the use of the said county, and to be enforced and collected in the same manner as forfeitures under the act of Assembly of 22d day of April, 1794, for the prevention of vice and immorality ; or shall, on conviction thereof in the court of Quarter Sessions of said county, be punished by a fine as aforesaid, and by impri- sonment, according to the aggravation of the offence, at the discretion of the court, for a term not exceeding one year. Act of February 19, 1849. Bunl. 1141. Sect. XV. If any person or persons shall wilfully and knowingly break, injure or destroy, any railroad authorized by special act of Assembly, or any part thereof, or any edifice, device, property or work, or any part thereof, or any machinery, en- gine, car, implement or utensil, erected, owned or used by such company, in pur- suance of this act, he, she or they so offending, shall forfeit and pay to such company, three times the actual damage so sustained, to be sued for and recovered with full costs, before any tribunal having cognisance thereof, by action in the name and for the use of the company. Sect. XVI. If any person or persons shall wilfully and maliciously remove and destroy any part of the road, property, buildings or other works, belonging to sucli company, or place, designedly and with evil intent, any obstruction on the line of such railroad, so as to jeopard the safety or endanger the lives of persons travelling on or over the same, such person or persons so offending shall be deemed guilty of (S) It is an indictable oiFence, at common law, to disintw a dead body. 10 Pick. 37. MALICIOUS MISCHIEF. 427 a misdemeanor, and shall, on conviction, be imprisoned in the county jail or peni- tentiary, at the discration of the court, for a term not more than three years : Pro' vided, That nothing herein contained shall prevent the company from pursuing any other appropriate remedy at law in such cases. Act of April 7, 1 849. Dunl. 1 1 65. Sect. III. If any person or persons shall wilfully and maliciously remove or de- stroy any part of such turnpike or plank road, or the property, buildings, or other works belonging to such company, [incorporated under the act of 20th January, 1849,] or shall designedly and with evil intent place any obstruction on the line of said road, so as to endanger the safety of persons travelling on or over the same, such person or persons so offending shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be imprisoned in the county jail for a term not exceeding six months, at the discretion of the court. Act of April 14, 1851. Pamph. 615. Sect. XU. If any person or persons, from and after the passage of this act, shall maliciously or voluntarily break down any post and rail, or other fence, put up for the enclosure of lands, and carry away, break, or destroy any post, rail, or other material of which such fence was bmlt, within this commonwealth, every person or persons so offending, and being legally thereof convicted before any justice of the peace or alder- man within this commonwealth, shall, for every such offence, forfeit and pay the sum of ten dollars, one half thereof to be paid to the informer, and the other' half to the support of the poor of such county, township, borough, or ward, where the offence has been committed, together with costs of prosecution ; and, in default of pay- ment, such person or persons shall be imprisoned in the county jail, not exceeding thirty days for the first offence, and sixty days for the second : Provided, that either of the parties shall have the right of appeal, in the same manner as in civil cases. [The proceedings under this act must he by summary conviction. See "Summary Convictions."] II, Warrant for Malicious Mischief. Cirr OF PITTSBURG, as. SQie fflommontoealtj) at $ennssltonta, To any Constable of the said city, greeting : YOU are hereby commanded to take the body of A, B., if he be found in the said city, and bring him before J. R,, one of our aldermen in and for the said city, to answer the , Commonwealth upon a charge founded on the oath of C. D., of having, on the night of the dth of May, 1844, taken down, broken, and destroyed, a wooden sign, which had been put , up by the said C. D., to denote his place of abode and his business as an innkeeper^ contrary to the act of Assembly in such case made and provided, and further to be dealt with accord- ing to law. And for so doing, this shall be your warrant Witness the said J. R., at Pitts- burg, who hath hereunto set his hand and seal, the ninth day of May, A. D. 1844. J. R., Alderman. [seal.] III. Malicious mischief, in this county, as a common law offence, has received a far more extended interpretation than has been attached to it in England. In its general application, it may be defined to be any malicious or mischievous injury, either to the rights of another, or to those of the public in general. Thus it has been considered, an offence at common law to destroy a horse belonging to another ; oi* a cow ; or any beast whatever which may be the property of another ; to be guilty of wanton cruelty to animals in general ; to cast the carcass of an animal in a well in daily use ; to poison chickens ; fraudulently tear up a promissory note ; or maliciously break windows ; to mischievously set fire to a number of barrels of tar belonging to another ; to girdle or otherwise maliciously injure trees kept either for use or ornament ; to put cow-;itch on a towel, with intent to injure a person about to use it ; to break up a boat ; to cut off the hair of the tail or mane of a horse, when done maliciously ; to discharge a gun, with the intention of annoying or injuring a sick person in the immediate vicinity; and to break into a room with violence, for the same purpose. JVh. C. L. 433-4. 428 MAEKETS. ^alfcfott^ ^tofiiecutfon. ^ I. Act of 1705. Furd. 790. Dunl. 50. « Sect. I. If any person or persons shall be imprisoned or prosecuted without pro- bable cause, he, she, or they, shall have double damages against the informer or pro- secutor, to be recovered by an action at common law. Act of June 16, 1836. Purd. 608. Dunl 802. Sect. XVII. Provides, that persons confined by virtue of process issued upon any judgment obtained against them for malicious prosecution, shall not be entitled to a discharge under the insolvent laws, tiU after imprisonment for sixty days. II. 1. An action of malicious prosecution will lie where a criminal prosecution was commenced, although no indictment was preferred to the grand jury. 4 Y. 507. 2. Demanding excessive bail, although the plaintiff has a well-founded cause of action, or holding to bail when the plaintiff has no cause of action, if done for the purpose of vexation, entitles the parity aggrieved to an action for a malicious prose- cution. 1 Peters' C. C. 210. 1 P. R. 232. 3. In order to support this action, an injury and damage to the plaintiff must be proved, and it must be proved that the injury and damage were occasioned by some malicious act of the defendant, and the malice may be inferred from the circumstances. iS.SfR. 19-23. ,4. To support an action for a malicious prosecution, both malice and the want of probable cause must be established against the defendant. 3 W. C. C. R. 21. 5. In a civil suit, the existence of a cause of action is not a defence to a suit for an excessive abuse of process. But in criminal proceedings, want of probaWe cause must be combined with malice. 8 W. 240. 6. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the per- son accused is guilty of the offence with which he is charged. 2 Harris, 369. 7. The question of malice is to be decided by the jury. Probable cause is a mixed question of law and fact ; what circumstances are sufficient to prove probable cause, are to be judged by the court ; whether the circumstances which amount to probable cause are proved, is a question for the jury. Bright. R. 494. 8. In an action for a malicious prosecution, the question of probable cause should be submitted to the jury, not upon the fact of the guilt or innocence of the plaintiff, but upon the defendant's belief of his guilt or innocence, b W. Sf S. 438. 9. In an action on the case for a malicious prosecution, upon the act of 1705, unless the jury find expressly that they have assessed only single damages, the court cannot double those which have been given. 3 W. 84. Act op March 18, 1775. Purd. 793. Dunl. 118. Sect, VIII. It shall and may be lawful to and for the clerk of the market of any city, borough, or town, within this province, to weigh all butter brought into the same to be sold by weight, which, if found deficient, tie said clerk shall forthwith, in the presence of two reputable freeholders, weigh again, and if it appears to the said freeholders that the said butter is under weight, the same shall be seizable ; one-thiid part thereof for the use of the said clerk, and the other two-thirds for the use of the poor of the place where seized; and in case any owner or owners of butter so seized shall conceive him, her, or themselves, aggrieved by such seizure, he, she, or they, may appeal to any magistrate or justice of the city, borough, or place where such seizure is made, who shall hear, try and determine the same. MARRIAGE. 429 Note. It may he useful to remark, that it is indispensable that the butter shall be weighed in the presence of two reputable freeholders, and if it shall appear to them that the said butter is under weight, it shall be seizable. Under no other circumstances is it seizable, and even then, if the owner shall consider himself aggrieved, he may appeal to any justice of the peace having jurisdiction in the district where the seizure was madB. Act OF April e, 1802. Purd. 193. Dunl. 219. Sect. I. 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 cor- porate 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. Jlct of March 2, 1844. Pamph. 68. Sect. I. No act of Assembly, relating to the market-houses, stalls or stands, in the city of Philadelphia, or in the incorporated districts of the county of Phila- delphia, shall be construed to prohibit persons who may send or carry the produce of their farms to market, from selling or exposing for sale, beef, mutton, veal, swine, and poultry, which may have been slaughtered on their farms ; or butter and cheese or other articles, manufactured or prepared thereon for market, on the stalls and stands in the said city and incorporated districts of the county of Phil- adelphia, which have been, now are, or hereafter may be intended, reserved or appropriated, to the use of such persons; nor shall any person, so selling such meats or other articles, be liable to any fine or penalty therefor, or for selling meats in less quantities than one quarter ; and all ordinances which have been or may be enacted by the^elect and cammon councils of said city, or by the proper authorities of said districts of the county of Philadelphia, imposing any such fine, shall be held to be null and void : Provided, that farmers using the stalls in said market-houses, for the purposes above specified, shall pay a rent or compensation for each stall, not exceeding twenty dollars per annum. ^nwUist. I. Acts of Assembly. II. Its legal effects, civilly and criminally, upon the husband and wife. in. A marriage ceremony and certifi- cate. I. Act of 1701. Purd. 794. Dunl. 40. Sect. I. All marriages not forbidden by the law of God, shall be encouraged ; but the parents or guardians shall, if conveniently they can, be first consulted with, and the parties' clearness of all engagements signified by a certificate from some credible person where they have lived or do Uve, produced to such religious society to which they relate, or to some justice of the peace of the county in which they live, and by their affixing their intentions of marriage on the court-house or meeting-house doors in each respective county where the parties do reside or dwell, one month before solemnization thereof; the which said publication, before it be so affixed as aforesaid, shall be brought before one or more justices of the peace, in the respective counties to which they respectively belong; which justice shall subscribe jjie said pubhcation, witnessing the time of such declaration, and date of the said publication, io to be affixed as aforesaid. And all marriages shsill be solemnized by taking each other for husband and wife, before twelve sufHcient witnesses ; and the certificate of their marriage,' under the hands of the parties and witnesses, at least twelve, and one of them a justice of the peace, shall be brought to the register of the county where they are married, and registered in his office. And if any servant or servants shall procure themselves to be marsied, without consent of his or her master or mistress, such servant or servants shall, for such their offence, each of them serve their re- spective masters or mistresses one whole year after their time of servitude by in- 430 MARRIAGE. « denture or engagement is expired ; and if any person, being free, shall marry with a servant as aforesaid, he or she so marrying shall pay to the master or mistress of the servant, if a man, twelve pounds, and if a woman, six pounds, or one year's ser- vice ; and the servant so being married, shall abide with his or her master or mis- tress, according to indenture or agreement, and one year after, as aforesgid. And if any person shaJl presume to marry or be witnesses to any marriage, contrary to this act, such person, so married, shall forfeit twenty pounds to the proprietary and go- vernor; and the witnesses being present at such marriage, shall forfeit and pay. each of them five pounds, to the use of the proprietary and governor, as aforesaid, and pay damages to the party grieved, to be recovered in any court of record within this government. 3 R. 306. 5 Ibid. 209. Sect. II. Provided, that this law shall not extend to any who shall marry or be married in the rehgious society to which they belong, so as notice shall be given by either of the parties, to the parents, masters, mistresses, or guardians, one full month at least before any such marriage be solemnized. Sect. III. No license or dispensation shall hinder or obstruct the force or opera- tion of this act, in respect of notice to be given to parents, masters, mistresses, or guardians, as aforesaid. ^cl ofFelruary 14, 1729-30. Purd. 794. Dunl. 82. Sect. I. No justice of the peace shall subscribe his name to the pubhcation of any marriage within this province, intended to be had between any persons whatso- ever, unless one of the persons, at least, live in the county where such justice dweUs, and unless such justice shall likewise have first produced to him a certificate of the consent of the parent or parents, guardian or guardians, master or mistress, of the persons whose names or banns are to be so published, if either of the parties be un- der the age of twenty-one years, or under the tuition of their parents, or be indented servants, if such parent, guardian, master or mistress, live within this provinces or can be consulted with. And also, that no person or persons, of what character or degree soever he be, shall presume to publish the banns of matrimony, or intentions of marriage, between any person or persons, in any church, chapel, or other place of worship, within this province, unless one of the parties, at least, live in the town, county, or city, where such publication shall be made, and unless the person or per- sons making or causing to be made such publication, shall have received such certi- ficate of the consent of the parent, guardian, master or mistress, as is herein before directed, if the parties who ought to grant such certificate live within this province. Sect. II. If any justice of the peace, clergyman, minister, or other person, shall take upon him or them, to join in marriage any person or persons, or if any justice of the peace shall be present at, and subscribe his name as a witness to, any mar- riage within this province, without such pubhcation being first made, as aforesaid, such justice of the peace, clergyman, minister, or other person, taking upon him to sign, make, or cause to be niade, any publication contrary to the directions of this act, or shall marry or join in marriage any person or persons not published, as in the aforesaid act of Assembly and by this act is directed, every justice'c^ the peace, cler- £ryman, minister, or other person so oifending, shall for every such oflonce forfeit the sum of fifty pounds, to be recovered in any court of record within this province, by bill, plaint, Or information, by the person or persons grieved, if they will sue for the same, wherein no essoin, protection, or wager of law, nor any more than one impar- lance shall be allowed. .4f. 312, 214, 346. 2 V. 321. 4 Binn. 20. (1) Sect. III. Provided, that nothing herein contained shall be deemed to extend to any person who shall be married in the religious society to which they belong, so as notice be given to the parent or parents, guardian or guardians, masters or mis- tresses, of the person or persons so to be married, if such parent, guardian, master or mistress, live within this province, at least twenty days before such marriage be so- l>!mnized ; nor that this law shall extend to any pea-son marrying by the authority of any lawful license, so as such consent or approbation, in writing, of the parent or i)arents, guardian or guardians,, masters or mistresses, as by this act is directed, be lirst had, and the same consent be certified in the body, of the said Ucense. (I) This section inflicts the penalty only where tlie p.ircnts live within the commonwealth. 2j4m. i. J. 355. MARRIAGE. 431 Act of April 11, 1848. Dunl. 1124. Sect. VI. Every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman, shall continue to be the property of such woman, as fully after her marriage as before ; and all such property, of whatever name or kind, which shall accrue to any married woman during coverture, by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman as her own separate properly ; and the said property, whether owned by her before marriage, or which shall accrue to her afterwards, shall not be subject to levy and execution for the debts or liabili- ties of her husband, nor shall such property be sold, conveyed, mortgaged, trans- ferred or in any manner encumbered by her husband, without her written consent first had and obtained, and duly acknowledged before one of the judges of the courts of Common Pleas of this commonwealth, that such consent was not the result of coercion on the part of her said husband, but that the same was voluntarily given, and of her own free will : (2) Provided, That her said husband shall not be liable for the debts of the wife contracted before marriage : Provided, That nothing in this act shall be construed to protect the property of any such married woman froni liability for debts contracted by herself, or in her name by any person authorized so to do, or from levy and execution on any judgment that may be recovered against a husband for the torts of the wife ; and in such cases, execution shall be first had against the property of the wife. Sect. VII. Any married woman may dispose, by her last will and testament, of her separate property, real, personal or mixed, whether the same accrues to her be- fore or during coverture : Provided, That said last will and testament be executed ia the presence of two or more witnesses, neither of whom shall be her husband. Sect. VIII. In all cases where debts may be contracted for necessaries for the support and maintenance of the family of any married woman, it shall be lawful for the creditor, in such case, to institute suit against the husband and wife for the price of such necessaries, and after obtaining a judgment, have an execution against the husband alone ; and if no property of the said husband be found, the officer exe- cuting the said writ shall so return, and thereupon an alias execution may be issued, which may be levied upon and satisfied out of the separate property of the wife, secured to her under the provisions of the first section of this act : Provided, That judgment shall not be rendered against the wife, in such joint action, unless it shall have been proved that the debt sued for in such action was contracted by the wife, or incurred for ai'ticles necessary for the support of the family of the said husband and wife. Act of April la, 1849. Bunl. 117S. Sect. II. Every person in whose care or possession may be found the record kept by any minister of the gospel,- judge, alderman or justice- of- the peace,- of any mar- riage contract solemnized by or in the presence of such minister pf the gospel, judge, alderman or justice of the peace, shall, on applicatioii made to him, and the payment or tender of a fee of fifty cents in every case, deliver to the person apply- ing for the same, a full transcript of the record or entry in such case, with a proper certificate of the correctness of said transcript ; and any person having possession of such record as aforesaid, neglecting or refusing to comply with the provisions of this section, shall be liable to a penalty of fifty dollars, to be sued for and recovered with costs, before any justice of the peace of tiie proper county, by any person aggrieved, one-half to be paid to the person suing for the same, and the other half to the county in which suit is brought. ^ ^ — ^ . — - ^ (2) The act of 9th April, 1849, {Dunl. 1169,) enacts,-^that all deeds made by married women since the act of 1848, and all deeds hereafter to be made by them, shall be valid, if acknowledged according to the laws previously in fi)rce ; — that all deeds made by married women out of tlie commonwealth shall be sufficient, if acknowledged according to the requisitions in such cases provided; — and that deeds, mortgages, or powers of attorney, executed by married women out of the United, States, may be acknowledged in the manner prescribed by the act of 1848, 'be&re. any minister, ambassador, pharge Haffaireg, consul, or vice-consu] of the United States. And by act of 25th -April, 1850, {Pamph. 571,) the deeds, &c., of married women made in any other of the United States, may be acknowledged before any judge of any court of record. 432 MARKEOJK Act oJAjpril 22, 1850. Pamph. 553. Sect. XX. The true intent and meaning of the act of Assembly to secure the rights of married women, passed the 11th day of April, A. D. 1848, is and hereafter shall be that the real estate of any married woman in this commonwealth shall not be subject to execution for any debt against her husband, on account of any interest he may have, or may have had, therein, as tenant by the curtesy ; but the same shall be exempt from levy and sale for such debt, during the life of said wife. Act of April 25, 1850. Pamph. 571. Sect. XXXIX. Any suit or suits at law hereafter to be commenced in any of the courts of this commonwealth, touching or concerning, or for the recovery of any pro- perty, real, personal or mixed, belonging or secured to any married woman by virtue of the provisions of the act relating to the rights of married women, passed the 11th day of April, 1848, may be brought in the names of such married woman and her husband to the use of the said married woman ; and a recovery in such suit or suits shall be for the exclusive benefit of such married woman. (3) II. 1. Marriage is a civil contract, which may be entered into before any wit- nesses, and for which there is no particular fonn of ceremony required by law ; neither need it be performed before a clergyman or a magistrate. 6 Binn. 405. 2 H\9. 2. The validity of a marriage is to be determined by the law of the place where it was celebrated ; if valid there, it is valid anywhere. 10 W. 158. 3. For civil purposes, cohabitation and reputation are sufficient evidence of mar- riage. 1 P. n. 450. 4. The provisions in the acts of 1701, and 1729-30, requiring all marriages to be solemnized in the presence of twelve witnesses, and to be preceded by the publication of banns, are only directory ; and a non-compliance with them does not invalidate a marriage. 2 J-V. 9. 5. All actions for debt, either for or against a married woman, should be brought in the name of the husband alone, if the cause of action originated after marriage ; if before, and that the debt was contracted by the wife, the husband and wife should be joined in the suit. The wife may be the agent of the husband ; in the usual course of business, payment to the wife will be conclusive on the hus- band. -3.319. 6. If the husband and wife be improperly sued jointly, on a contract cfter mar- riage, the action will fail as to both. 1 Binn. 575. 1 Chit. Plead. 45. (3) Since the passage of the act of 1848, a married woman must be considered a feme sok in regard to any estate of whatever name or sort, owned by her before marriage, or which shall accrue to her during coverture by will, descent, deed of conveyance or otherwise. The act works a radical and thorough change in the condition of a.- feme comrt. She may dispose of her sepa- rate estate by will or otherwise, as a feme sole. Her property is hereafter exempted from levy and execution for the debts or liabilities of her husband, except in certain specified cases ; and she cannot be deprived of it, either by her husband or any other person, without her express con- sent. 1 Jones, 272. 1 Harris, 480. And the courts will not permit her to become bail for her husband, even under that law, which was designed to protect her property from liability for his debts, and will not be construed into a means of subjecting her to them. 3 Am. L. J. 138. But by act of 15th April, 1851, a married woman may loan money to her husband out of her separate estate, and take a bond and mortgage to secure the same iii the name of a trustee. Pampi. 675. If the wife dies before the husband, intestate, seized of an estate of inheritance, he will be entitled to enjoy the same during his life, in the same manner as a tenant by the curtesy consummate at common law. But during the life of the wife, he can neither sell, lease, charge, or in any way aifect her real estate, having no present interest therein, nor any future interest, except as dis- tributee under the intestate law. 1 Pars. Eq. Cos. 489. Prior to the act of 1850, it had been decided that, under the act of 1848, an action to recover the separate property of a married woman, or for injuries done to it, might either be brought in the joint names of husband and wife, or she might sue in her own nafae without joining her husband, as circumstances might require ; but in no case could he bring suit alone. 1 Harris, 480. 1 Wh. Dig. 925. The dis- trict court for the city and county of Philadelphia have determined that an action is not sustain- able against a married woman, under the act of 1848, for necessaries furnished, or contracts made by her before its passage. 1 Wh. Dig. 925. In the case of a marriage prior to the act of 1848, the death of the husband in October Mowing, and of the wife subsequently, it was held, that the personal property of the wife remaining in specie, on the premises of the husband, at the time of his death, went to hit representatives, notwithstanding the act of 184& 1 Am^ L. J. 387. MAKRIAGE. 433 7. Cohabitation is evidence of the husband's assent to contracts made by his wife, which can only be repelled by express notice ot. previous dissent, or notice not to trust her. If he turns away his wife, he gives her credit wherever she goes ; but if she runs away from him, though not with an adulterer, he is not liable for any of her contracts. If she elopes, not with an adulterer, and offers to return, he, notwithstand- ing his refusal to receive her, and a general notice not to trust her, is liable from that time. 2 Johns. 281. 8. The husband is liable for necessaries furnished his wife during her separation from him, though it was by her agreement, if she offer to return and he refuses to receive her, and has furnished no means for her subsistence. 7 S. Sf R. 247. 9. A husband is not liable for debts contracted by his wife, when they live apart from each other under a mutual agreement, by which an adequate allowance is made for the separate maintenance of the wife, which allowance is regularly paid according to the terms of the articles of separation. 2 .Ash. 140. 10. It is a well-settled principle, that the husband is not bound by the contracts of his wife, unless by some act, or declaration, prior or subsequent to the contract, his- consent may be fairly inferred. 5 Binn. 236. 11. The husband is liable for the debts of his wife contracted by her before the- coverture, [marriage,] and the husband and wife may be sued for such debts during ■ the coverture. But if these debts are not recovered against the husband and wife, . in the lifetime of the wife, the husband cannot be charged for them, either at law, or in equity, after the death of the mfe. Selto. JV. P. 286. 12. But if the wife survive the husband, an action may be maintained against her ■ for the recovery of the debts. Selw. JV. P. 286, note. 13. If a man cohabits with a woman, to whom he is not married, and permits hei to assume his name, and appear, to the world, as his wife, and in that character to- contract debts for necessaries, he will become liable,- although the creditor be ac- quainted with her real situation ; for here a like assent will be implied, as in' the case of husband and wife. Sebe. JV. P. 296. 14. If a man marries a woman having children by a former husband, he is not bound, by the act of marriage, to maintain such children ; but, if he holds them out to the world as part of his family, he will be considered as standing in loco parentis, [in the place of a parent,] and liable, even on a contract made by his wife, during his : absence abroad, for the maintenance of such children. Selw. JV. P. 296. 3 Comst. 312. 15. The husband is not liable on a negotiable note given by his wife, even in a suit by a bona fide endorsee, unless it was given with his authority or approbation, and that must be shown before such note is admissible in evidence against the hus- band. bW.SsS. 164. 16. If husband and wife live together, any business in which she may be en- jraged is presumed, unless the contrary be shown, to be conducted by her with • his knowledge, and as his agent. If he know that she is conducting business in his, . or in her own name, and do not prohibit or prevent her, or make known his dis- sent or disapprobation, he is liable on such contracts as she may make, and is liable, civilly, for such frauds or other torts as she may commit in the course of such business. If the wife buy goods without her husband's knowledge, and he afterwards learns that she has purchased them, if he permit her to use them, or to ■ retain possession of them, he is liable for the price. In such a case the possession, of the wife is the possession of the husband. If, when applied to for payment, he disown all participation in her business, and deny that the purchase was made on < his behalf, the seller may elect to treat such disclaimer as a disaffirmance and re- scission of the contract, and may retake the goods, or if they be withheld from i him, may bring trover and replevin for them. If either the husband or the - wife procure the delivery of goods, under the fictitious pretext of a purchase upon i credit, without intending that the seller should be paid for them, this is such a i fraud as would vitiate the sale, and prevent the property from being changed by the pretended purchase. In order to prove such a fraud, it is not absolutely necessary to prove a false pretence or otheir direct artifice, in respect to the indi- vidual purchase sought to be avoided. It may be shown that the transaction im- • mediately in issue was one of a series of acts, which, taken together, evince the ■ existence of a preconceived design to obtain possession without paying for them,, if a quantity of goods purchased on credit from many persons was inordinately 43i MARRIAGE. large, in proportion to the regular purposes, or the apparent business of the party ■obtaining them ; that they v/ere not kept, or dealt with, in a place or in a manner to indicate that they had been fairly acquired for the purposes of regular business ; that forced sales were made, at an undervalue of goods bought shortly before upon credit; that the subsequent conversations and deportment of the party Were indicative of a design to evade payment, and to make unjust appropriations of the property. The effect of such evidence is for the jury. It seems, however, that ithis doctrine ought not to be extended so far as to enable the original vendor, who :has been imposed upon, to follow goods into the hands of subsequent purchasers, who have become interested in them, bona fide, in the regular course of business. -3 Wli. 369. 17. The certificate of the judge, or justice, as to the acknowledgment of a deed, by k married woman, is to be judged of solely by what appears on the face ■of the certificate itself; and parol evidence of what passed at the time of the ac- knowledgment is not admissible for the purpose of contradicting the certificate, -except in cases of fraud and imposition. 3 Wh. 457. 9 Barr, 14. 1 8. A certificate of an acknowledgment of a deed by a married woman, stated nhat " she, being of full age, separate and apart from her husband, by me exa- smined, declared that she did voluntarily, of her own free will and accord, seal and aicknowledge the within indenture, without coercion of her said husband, the con- tents being by me first made known to her." Held that this was sufficient. Ibid.^ 19. When is a ivife excused for criminal misconduct ?. ■ In some cases the com- mand or authority of the husband, either expressed or implied, will privilege the -wife from punishment ; and therefore, if a woman commit theft, burglary, or other civil offences against the laws of society by the coercion of her husband, or even Sn his company, which ,the law construes a coercion, she is not guilty of any crime ; '^emg. considered as acting by compulsion and not of her own will. I Hawk. !P. C. 3. Wh. a L. 19. 1 Eng. L. Sf Eg. R. 549. 20. The husband, however, must be present when the offence is committed, or the (presumption of coercion by him does not arise. R. Sf R. C. C. 270. v 21. The wife is not.treated as an accessary to a felony, for receiving her husband who has been guilty of it ; though, on the contrary, it appears the husband would be, for receiving his wife. 1 Hale, 44. Wh. C. L. 22. 22. The law seems to protect the wife in all felonies committed by her in com- pany with her husband, except murder and manslaughter. Hale's P. C. 47. 23. In treason, also, no plea of coverture shall excuse the wife; no presumption of the husband's coercion shall extenuate her guilt. Ibid. Add. Ch. 66. 24. In all misdemeanors it appears that the wife may be found guilty with the husband, and in all cases where the wife offends alone, without the company or coei^ . cion of her husband, she is responsible for her ofienoe, as much as any feme sok. A Bl Com. 29, 30. IL Marriage Ceremony. The magistrate, addressing the persons assembled, shall say : — WE are gathered together 'here in the sight of God and in the face of this company, to join together this man and this woman in holy matrimony, which is honoaiable among all men, and, therefore, is not by any to be entered into unadvisedly or lightly, but reverently, discreetly, advisedly, soberly, and in the fear of God. Into this holy estate these two per- sons present come now to be joined ; if any one can show just cause why they may not law- fully be joined together, let him now speak, or else, hereafter, ior ever, hold his peace. The magistrate shall then address himself to the man, and say : A. B., wilt thoQ have this woman to be thy wedded wife, to live together after God's or- dinance in the holy estate of matrimony^ wilt thou love her, comfort tier, and keep her in -sickness and in health, and forsaking all others keep thee only unto her so long as ye both shall live 1 The man shall answer,:" I will." ■ Then shall the magistrate say unto the woman: C. D., wilt thou have this man to-be thy wedded husband, to- live together after God's ordinance in the holy estate of matrimony? wilt thou obey him, and love him, and keep him in sickness and in health, and forsaking- all others keep thee only unto him so long as ye both shall live ? MASTER AND SERVANT. 435 rhe woman shall answer, "I will." The magistrate, then joining their right hands together, shall say : ' Forasmuch as A. B. and C. D. have consented together in holy wedlock, and have wit- nessed the same before God and this company, and thereto have given' and pledged their faith each to the other, and have declared the same by joining of hands, I do, by virtue of the authority vested in me by the laws of the state of Pennsylvania, pronounce that they are man and wife ; and let no one put asunder those who have thus been joined together in tbe presence of God and before this company. A MARRIAGE CERTIFICATE; 38s aiittottts of tje fflommontoealt!) at 3?etxiissltenta, THIS IS TO CERTIFY, That on the [tenth] day of [June,] in the year of our Lord, one thousand eight hundred and [forty-four,] before me, P. C, one of the alderman in and for the city of Philadelphia, [George 6oodfellow,'of the city of Philadelphia, and Mary Johnson of Camden, New Jersey,] having plighted the solemn vows of duty and affection, were by me legally joined in marriage, each of them declaring themselves of full age, and free, respectively, from any prior engagement, or other lawfuL impediment;; whereupon 1, the said alderman, have declared, and by these preseiits do declare, them to be man and wife, according to the constitution and laws of the commonwealth of Pennsylvania. In witness whereof, I, the said alderman, have subscribed my name and affixed my seal, the day and year above metitioned. P. C., Alderman. [L. S.] The several kinds of persons who come within the description of servantSj may De subdivided into slaves, hired' servants, and persons hound by indenture, as regu- lated by the acts of Assembly of 1700 and 1771. Purd. 1063-4. - 1. Domestic slavery existed throughout these United States, when they were co- lonies of Great Britain. It exists, to this day, in all the southern states of the Union, but it has become entirely extinct in the eastern states. In Pennsylvania, by the act of March, 1780, [Purd. 864,) peissed for the gradual abolition of slavery, this great evil has become extinct. Dunl. 123. 2 Kent's Com. 204. 2. The next class of servants are hired servants ; and this relation of master and servant rests altogether upon contract. The one is bound to render the service, and the other to pay the stipulated consideration. Ibid. 209. 3. Another class of servants are servants who become such by indenture, accord- ing to the provisions of the foregoing acts of Assembly. There are many important legal consequences which flow from the relation of master and servant. 4. A master may bring an action against any man for beating or maiming his ser- vant, but in such case he must assign, as a special reason for so doing, his own da- mage by the loss of his services ; and this loss must be proved upon the trial. 1 Bl. Com. 429. 5. The master is answerable for the act of his servant, -if done (by- his command, either expressly given, or implied. Therefore, if the servant eommit-a trespassj'by ■ the command or encouragement of bis-master, the master shall be guilty of it, though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful. ' 1 //«'rf. 430. 6. In the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. If I pay money to a oanker's servant, the banker is answerable for it. If I pay it to a clergyman's or a physi- cian's servant, whose usual business is not to receive money for his master, dnd he embezzles it, I must pay it over again. If a steward lets a lease of a farm without the owner's knowledge, the owner must stand to the bargain^ for this is a steward's business. Ihid. 7. If I usually deal with a tradesirian by myself, or constantly pay him ready mo-- ney,, I am not answerable for what toy servant takes up upon' trust, for here is no .mplied order to the tralesman to'trust my servant; but if tTisually^ehd him up6n 436 MECHANICS' LIEN. J trast, 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 Ibid. 430. 8. A master is chargeable if any of his family layeth or casteth any^ thing out of his house into the street or common highway, to the damage of any individual, or is a common nuisance, for the master has the superintendence and charge of all his household. 1 Ibid. 431. Bright. R. 489. 9. If a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect ; if a smith's servant leaves a horse while he is shoeing him, an action lies against the(,;master, and not against the servant. But in these cases, the damage must be done while he is actually employed in the master's service, otherwise the servant shall answer for his own misbehaviour. Jbid. 431. 10. When a man gives his servant money to pay for commodities as he buys them, if the servant pockets that money, the master will not be liable to pay it over again ; but if the master employs his servant to buy things on credit, he will be lia- ble to whatever extent the servant shall pledge his credit. Peake's N. P. 47. 11. To constitute an indenture of servitude, express words, binding the servant, as such, are necessary. 2 F. 257. 12. An indented servant is not liable to be committed as a vagrant. 1 Br. 27S. 13. No instance, I think, can be found in any act of Assembly, where the terms " servant" and " apprentice" are used as synonymous. 3 B. 307. 14. In Pennsylvania, a master has no right to inflict corporal punishment on his hired servant. 1 .3sh. 267. 15. The acts of a servant bind his master only when done in the course of the business committed to him, or within the scope of an authority specially delegated. 4 W. 222. 16. Faithful service is a condition precedent to the right of a servant to his wages ; and if, during the term for which he has agreed to serve, he commit a cri- minal offence, although not immediately injurious to the person or property of his rcaster, he will not be entitled to recover any part of his wages. \ PF. Sf S. 267. ^ttbntiitn' %im. I. Extracts Ham acts of Assembly. II. Judicial decisions. III. When the mechanic's claim should be filed. IV. Forms of claims of various sorts, as well for material-men as mechanics. I. Act of June 16, 1836. Purd. 798. Diinl. 77a. Sect. I. Every building erected within "the several counties" of this common- wealth, " to which the act entitled ' an act securing to mechanics and others pay- ment for their labours and materials in erecting any house, or other building, within the city and county of Philadelphia,' passed the 17th of March, 1806, and the several supplements thereto, now extends," shall be subject to a hen for the pay- ment of all debts contracted for work done, or materials furnished for or about the erection or construction of the same, (The counties to which the acts here referred to have been extended at this time were, Allegheny, Armstrong, Beaver, Bed- ford, Berks, Bucks, Butler, Cambria, Centre, Chester, Clearfield, Columbia, Craw- ford, Cumberland, Dauphin, Delaware, Erie, Franklin, Huntingdon, Indiana, Ju- niata, Lancaster, Lebanon, Luzerne, Lycoming, Mercer, Mifflin, Montgomery, Northumberland, Perry, Philadelphia, Schuylkill, Somerset, Susquehanna, Tioga, Union, Venango, Warren, Washington, York, and to the borough of Easton in Northampton county ; and by subsequent acts, this act is extended to the counties of Wayne, Fayette, Clarion, Clinton, M'Kean, Bradford, Monroe, Greene, Potter, Jefferson, Northampton, Pike, Adamp, Westmoreland, Elk, Lawrence and Carbon. Sect II. The lien of such debt shall extend to the ground covered by such MECHANICS' LIEN. 437 bnilding, and to so much other ground immediately adjacent thereto, and belonging in like manner to the owner of such building, as may be necessary for the ordinary and useful purposes of such building, the quantity and boundaries whereof shall be detennined as follows : Sect. III. Provides that the prothonotary of the proper county shall keep a book docket, to be called "The Mechanics' Lien Docket," in which shall be recorded all descriptions of lots, or pieces of ground, and all claims that may be filed by virtue of this act, with the day of filing the same, and the names of the ovimer, of the con- tractor, architect, or builder, if such be named, and of the person claiming the lien. Sect. IV. Provides that the owner of any lot, &c., desirous of erecting or of con- tracting for the erection of any building, may define in writing the boundaries of the lot, previously to the commencement of the building, and cause it to be entered of record, and such boundaries so defined and entered upon record, shall be obligatory upon all persons concerned. Sect. V. Provides that if such boundaries are not designated before the com- mencement of the building, the owner or any person having hen upon the lot, by mortgage, judgment, or otherwise, or by virtue of this act, may petition the proper court to appoint commissioners to designate the boundaries. Sect. VI. Provides that it shall be. the duty of the court, after reasonable notice to all parties interested, to appoint such commissioners. Sect. VII. Provides that it shall be the duty of the said commissioners, after due examination made, to report to the court, designating by metes and bounds the limit and extent of ground necessary for the convenient use of the building, which report shaU. be entered at length upon the record, and if approved by the court, shall be conclusive upon aE persons concerned. Sect. VIII. Provides that if execution shall be awarded for the levy and sale of any lot, upon which a building shall be erected, before the boundaries of the lot which ought to be appurtenant thereto shall be designated, it shall be lawful for the court, upon applica,tion, to stay such execution, until such designation shaU be made. (See 4 and 7 above.) Sect. IX. Provides that if the building against which any claim shall be filed, or any part of the ground adjacent, shall be sold by execution upon any mortgage or judgment, before the extent of the lien of the claimant shall be ascertained, as afore- said, the court out of which such execution has issued shall have power to deter- mine the rights of the respective parties, and the apportiorunent'or appropriation of all liens as aforesaid, and for that purpose may appoilit an auditor to inquire into and report the facts, and may decree distribution of the proceeds accordingly, or, upon apphcation by any of the parties, may direct an issue, for the determination of disputed facts. Sect. X. The lien for work and materials aforesaid shall be preferred to every other lien or incumbrance which attached upon such building and ground, or either of them, subsequently to the commencement of such building. Sect. XI. Every person entitled to such Ken shall file a claim or statement of his demand, in the office of the prothonotary of the court of the proper county in which the building may be situate. Sect. XII.- Every claim as aforesaid must set forth : First, The names of the party claimant, and of the owner, " or reputed owner" of the building, and also of the contractor, architect, or builder, when the contract pf the claimant was made with such contractor, architect, or builder-. 5 Wh 366. Second, The amount or sum claimed to be due, and the nature or kind of the work done, or the kind and amount of materials furnished, and the time when the materials were furnished, or the work was done, as the case may be. Third, The locality of the building, and the size and number of the stories of the same, or such other matters of description as shaU be sufficient to identify the same. Sect. XIII. In every case in which one claim for materials shall be filed by the person preferring the same against two or more buildings, ovsmed by the same person, the person filing such joint claim shall, at the same time, designate the amount which he claims to be due to him on each of such buildings, otherwise such claim shall be postponed to other lien creditors, and the lien of such claimant shall 438 MECHANICS' LIEN. not extend beyond the amount so designatedj as against other creditors having liens, by judgment, mortgage, or otherwise. Sect. XIV. Every such debt shall be a hen as aforesaid, until the expiration of six months after the work shall have been finished, or materials furnished, although no claim shall have been filed therefor, but such lien shall not continue longer than the said period of six months, unless a claim be filed as aforesaid, at or before the expiration of the same period. Sect. XV. Provides that the proceedings to recover the amount of any claim as aforesaid, shall be by writ of scire facias. Sect. XIX. Provides that upon the return of such writ, any other person having filed, a claim as aforesaid may enter, on the record of the same suit, a suggestion setting forth the amount and nature of his demand, and thereupon he may have a rule upon the defendant, to appear and plead thereto, as in other cases. Sect. XXI. The execution on judgment obtained, shall be by a writ of levari facias. Sect. XXII. Provides that if the proceeds of the building and ground sold shall not be sufiicient to pay the fuU amount of all debts due as aforesaid, for work done and materials furnished, after deducting therefrom any prior liens upon the same, then such debts shall be averaged, and the creditors aforesaid shall be paid in pro- portion to their respective demands. Sect. XXIII. In every case in which any claim shall be filed against any build- ing as aforesaid, and no scire facias shall have issued thereon, the owner of such building, or any other person interested therein, may apply by petition to the court in whifih such claim is filed, setting forth the facts, and such court may grant a rule upon the party claimant, and others interested, to appear in court, and on the return of such rule, may proceed in hke manner as if a scire facias had been issued by such claimant, and had been duly served and returned. Sect. XXFV. The lien of every such debt, for which a claim shall have been filed as aforesaid, shall expire at the end of five years from the day on which such claim shall have been filed, unless the same shall be revived by scire facias, in the manner provided by law in the case of judgments, in which case, such hen shall continue in hke manner for- another period of five years, and so from one such period to another, unless such hen be satisfied, or the same be extinguished by a sheriflT's sale or otherwise, according to law. Sect. XXV. Provides that when the amount of any claim as aforesaid shall be paid or satisfied, it shall be the duty of the claimant, or his legal representative, at the request of the owner of the building, or of any other person interested therein, and on payment of the costs, to enter satisfaction on the record of such claim, in the office of the prothonotary of the court in which such claim shall have been entered. Sect. XXVI. Provides that if any person who has received satisfaction, as afore- said, shall neglect or refuse to enter satisfaction of such claim, within sixty days after request, and payment of the. costs of suit as aforesaid, he shall forfeit and pay to the party aggrieved any sum- not exceeding one half of the amount of such claim, to be recovered as debts, of a like amount are recoverable. Sect. XXVII. Provides that nothing in this act contained shall impair or afiect the right of any person to whom any debt may be due for work done, or materials furnished, to maintain any personal action against the owner- of the building, or any other person liable therefor, to recover the amount of such debt. Sect. XXVIII. Extends the several provisions of this act to the county of Lehigh. Sect. XXIX. Extends the hen hereinbefore given to plumbers, and to persons furnishing curbstone for the pavement of any building as aforesaid, within the cily and county of Philadelphia. (I) Act of April 16, 1838. Purd. 803. Dunl 856. Sect. XXXIV. Extends the provisions of the foregoing act to whaif-builders, and all concerned in the making or construction of the same. Act of April 2%, 1840. Purd. 803. Dunl. 916. Sect. XXIV. The lien created by the act of 16th June, 1886, shall not be con- (1) By subsequent acts this section is extended to the city of Lancaster, and to r-lumbers within the county of Chester. MECHANICS' LIEN. 489 stiued to extend to any other or greater estate in the ground on which any building may be erected, than that of the person or persons in^ possession at the time of com- mencing said building, and at whiose instance the same is erected ; nor shall any other or greater estate than that above described, be sold by virtue of any execution authorized or directed in the said act. 4 W. S^ S. 218.. Ibid. 223. Mt of April 16, 1845. Purd. 803. Dunl. 1055. Sect. V.. The act of 1836 shall be construed to extend to and embrace claims for labour done, and materials furnished and used, in erecting any house or other build- ing, in pursuance of any contract or agreement for the erection of the same. Act of April 4, 1848. Dunl. 1 1 17. Sect. V. The district courts shall have jurisdiction of apportioned claims amount- ing in the aggregate to a sum within their jurisdiction, notwithstanding the amount apportioned against each building may be less than the sum of which such courts have jurisdiction : Provided, that separate executions may issue as heretofore. Act of April 9, 1849i Dunl. 1166. Sect. II. The provisions of the act of 1836 are extended, in the counties of Co- lumbia and Elk, to every fixture in and about iron works and mines, and to every . bridge and building, where work is done or materials furnished in the construction of such fixture, in and about mines or iron works, bridge or building, for any corpo- rate body, or for a contractor in the employment of a corporate body. The process to obtain satisfaction of any judgment obtained upon such lien, in any case where by existing laws no lien is given, for labour done or materials furnished to a corpo- rate body, shall be by writ of sequestrationj as provided by the 73d section of the act of 16th June, 1836, entitled "An act relating to executions." Act of March 34, 1849. Dunl 1205. Sect. II. It shall be lawful for any mechanic or material man in the city or county of Philadelphia, and county of Chester, who performs work and furnishes materials, to include both in the same claiin filed ; and where the value or amount of the work or materials can only be ascertained by measurement when done, or shall be done by contract for a stipulated sum, it shall be lawful to file a statement of the time when the work was commenced, and when finished, and of the aggregate price of the work and materials, and all claims heretofore filed in conformity herewith, and not decided judicially, are hereby confirmed. Sect. III. The several provisions of the act [of 1836] to which this is a supple- ment, are hereby extended to paper-hangers. Act of April 25j 1850. Pamph. 576. Sect. XXXVIII. The several laws of this commonwealth authorizing an appor- tionment of the amount due for materials furnished to two or more buildings owned by the same person, among the said buildings, shall extend to and shall authorize in similar cases an apportionment for work done, and for work done and materials fur- nished under one contract, as fully and in the same manner as is now authorized and allowed in the case of materials furnished. II. 1. A lien for work and materials on a building, is a privilege derived entirely from statutory provision, and cannot be maintained beyond the extent of the grant by act of Assembly. 3 W. 143. 2. Materials furnished for a building, although not actually wsed in its construc- tion, constitute a lien. 2 8. Sf R. 170. 12 Ibid. 303. 3. But if not expressly furnished for the building, although used, no lien is ac- quired. 16 S. Sf. R. 56. 4. It is not necessary, to give a lien, that the claim of the mechanic or material- man should be payable in money. If by the agreement it is to be paid in other ma- terials, it will be sufficient. 14 Ibid. 33. 440 MECHANICS' LIEN. 5. Burr millstones, furnished like any other part of the machinery, are the subject of a mechanic's lien upon the mill. 5 W. 115. 6. The addition of a basement story to a frame-house, finished so_ far as to have received a family, is not an erection or construction within the provision of the me- chanics' lien law. 8 Ibid. 514. 7. Fixtures erected by a tenant on ground leased for a term of years are to be treated as chattels, not only in regard to the lessor, but all other persons ; they are therefore not the subject of a mechanic's lien. 9 Barr, 117. 2 Harris, 118. 8. Where there is a contract to erect houses for a specific sum, and it has been per- formed, it is not necessary to set forth the items of work, materials, &C., in the claim filed. 9 Barr, 449. 9. A bill of particulars annexed to a mechanic's claim, and referred to therein, is a part of it, and, if the dates tod items are there specified, it is suflScient. If there is but one date in the bill, the materials are presumed to have been furnished on that day, unless the contrary appears. 1 Am- L. J. 524. 10 Barr, 186. 10. Where materials are furnished to a contractor for the joint use of two or more adjoining buildings, owned by different persons, separate liens may be filed, appor- tioning the proper amount due by each house. 1 Harris, 167. 11. A mechanic's claim cannot be filed against a public building, whether used for county, township, or any other purposes; hence, no lien can be obtained against a building erected for public school purposes, the money for the erection of which is to be paid out of the school fund. Williams v. The Controllers, Dist. Ct., Phila., April 1, 1848. 12. A journeyman is not entitled to a lien for his work under the acts of 1836 and 1845. 8 Barr, 463. 13. A church is a building within the meaning of the act of 18.36, and is subject as such to a mechanic's lien. 10 Barr, 413. 14. Where the front wall of a house was taken down, the roof taken off, except the rafters, but the other walls left standing on the same foundation, the floors re- maining, it was held, to be but a remodelling and repairing, and not within the me- chanics' Hen law. 2 Am. L. J. 36. Jbid. 83. 2 M. 359. 10 Barr, 379. 15. A claim filed for materials furnished and work and labour done, must state the amount claimed for such, as a distinct item, or the omission will render it totally invalid. 6 Barr, 187. [See act of 24th March, 1849.] III. Within what Time must the Claim be filed, and what will destkot THE Lien. 1. The materials furnished January 22d, and claim filed therefor, July 23d, in the same year ; held, that this was not a filing at or before the expiration of six months, as required by the act. 2 JIf. 34 1 . 2. A claim by a material-man, recited that it was "filed within six months, ac- cording to act of Assembly," &c. Held, that the time of furnishing the materials was too loosely stated. 5 W. Sf S. 262. 3. The acceptance of a note is not a relinquishment of a mechanic's lien. 5 W. 118. See 4 W. Sf 5.257. 4. A judgment for the defendant, in a personal action by the mechanic or mate- rial-man, against the owner of a building, is a bar to a scire facias against the same person, on a claim filed in the Common Pleas, by the same plaintifi", against the same ouilding. 2 WJi. 118. 5. The taking of a bond, with warrant of attorney to confess judgment, and judg- ment confessed thereon, does not extinguish the lien of the mechanic or material- man, under the mechanics' lien act. "The lien is but a collateral security to the debt ; the claimant has also a concurrent remedy, by personal action. 2 M. 214. MECHANICS' LIEN. 441 IV. Forms of Claims. FORM OF CLAIM BY A HOUSE-CARPENTER AGAINST ONE WHO IS OWNER AND CONTRACTOR, FOR WORK AND MATERIALS FOR A BUILDING. ^- ^" ? IN the Court for the County of , p"^ f Term, 185 , No. A. B., house-carpenter, of the county of , files this his claim for the payment of the sum of dollars and cents, against all that certain story _ building, containing in front feet, and in depth feet, and the lot or piece of -ground on which the same is erected, with the curtilage appurtenant thereto, situate on the side of street, at the distance of feet from the side of street, in the said county : the sum of dollars and cents, part of the sum claimed, being a debt contracted for work, viz., carpenter's work; and the suin of dollars and cents, the residue thereof, being a debt contracted for materials, viz., bricks, lime, sand, lumber, and ironmongery; done and furnished by the said A.B., within six months last past, in, for, and about the erection and construction of said build- ing, of which the said C. D. was and is the owner or reputed owner, and at his instancfe and request, he being the contractor, architect, and builder thereof; and the said A. B. claims to have a lien on the said building and the lot or piece of ground and curtilage ap- purtenant to said building from the commencement thereof, for the sum aforesaid, accord- ing to the act of Assembly in such case made and provided ; and said claimant hereto annexes a bill of particulars of the amount of his said debt, showing the nature and kind of work done, the kind and amount of materials furnished, and the time when the said work and materials were done and furnished. (Plaintiff's bill annexed.) f IN the Court of for the County of , J p ( Term, 185 , No. . / le fionntv of . hnhse-narriRntftr. fil«R this his r.laim for the navment o{ •^ FORM OP CLAIM FILED BY A HOUSE-CARPENTER AGAINST C. D. OWNER, AND E. F. CON- TRACTOR, FOR WORK AND MATERIALS FOR A BUILDING. A. B. vs. C. D. and E. A. B., of the county of , house-carpenter, files this his claim for the payment of-' the sum of dollars and ceiits, against all that certain story (stone, brick, or frame) building, containing in fi'oht feet, and in depth feet, and the lot or piece of ground on which the same is erected, with the curtilage appurtenant thereto, situate on the side of street, at the distance of feet from the corner of street, in the county aforesaid ; the sum of dollars and cents, part of the sum claimed, being a debt contracted for work, viz., carpenter's work, &c. ; and the sum of dollars and cents, the residue thereof, being a debt contracted for materials, viz., lumber, lime, bricks, &c., done and furnished by the said A. B., within six months last past, in, for, and about the erection and construction of the said buildings, of which the said C. D. is the owner or reputed owner, and the said E. F. the architect, builder, and contractor for the said work and materials, at whose instance and request they were done and furnished as aforesaid ; and the said A. B. claims to have a lien on the said building and lot or piece of ground and curtilage appurtenant to said building, from the time of its commencement, for the sum aforesaid, according to the act of Assembly in such case made and provided ; and said claimant hereto annexes a bill of particulars of the amount of his said debt, showing the nature and kind of work done, the kind and amount of materials furnished, and the time when the said work was done, and the said materials furnished as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAIM FILED BY A BKICKMAKER AGAINST C. D. OWNER, AND E. F. CONTRACTOR, FOR MATERIALS FURNISHED FOR ONE BUILDING. ^vF ^ ^^ ""^ -'"^'■' °^ ^°^ '^® County of C.D.andE.F.5 Term, 185 , No. A. B., brickmaker, of the county of , files this his claim in his own right for the sum of dollars and cents, for materials : viz., bricks, furnished for and about the erecting and constructing a certain story brick building, situate in street, between and streets, No. , 442 MECHANICS' LIKJS. in the of . , in the county aforesaid, containing in front on said street, feet, and in depth feet, of which C. D. was and is the owner or reputed owner, and E. F. the architect, huilder, and contractor for said materials, furnished by the said A. B., withiri six months last past, to said building, at the instance and request of the said E. F. contractor. This claim is filed as well against said building as against the lot or piece of ground and curtilage appurtenant to the same : and the said A. B. annexes hereto a state- ment of the particulars of the amount of his said debt, showing the kind and amount of materials furnished, and the time when said materials were furnished. (Plaintiff's bill annexed.) FORM OP CLAIM FILED BY A BRICKMAKEK, AGAINST ONE WHO IS OWNER AND CONTRACTOR, FOR MATERIALS FURNISHED FOR TWO OR MORE BUILDINGS, WHERE THE AMOUNT CLAIMED IS EQUALLY DIVIDED. r^ A. B. ■) IN the Court, for the CoUnty of CD. 3 Term, 184 , No. Al B., brickmaker, of the county of , files this his claim for the payment of the sura of dollars and cfeftts, against all those certain story brick houses [or buildings] situate in the of , in the county aforesaid, in street, between and streets, each house being' about feet in front, on said street, and in depth feet, and the lots or pieces of' ground and curtilages appurtenant to said / buildings: the said sum of dollars, being a debt contracted for materials: viz., / bricks, furnished and provided by the said' A. B., within sir months last past, for and y about the erection and construction of the said buildings, of which the said C. D. was ^ and is the owner, or reputed owner, and at his instance and request, he being the con- 1 tractor, architect,.and builder thereof; and the amount claimed to be due on each of the I said buildings, for materials furnished and provided as aforesaid, is dollars and / cents, which the said claimant hereby designates according to the act of Assembly, in such / case made and provided, and claims to have a lien for on the said buildings and appurte- / nances from the commencement of the same ; and said claimant hereto annexes a bill of par- / ticulars of the amount of his said debt, showing the kind and amount of materials furnished, I and the time when said materials were furnished as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAIM FILED BY A BRICKMAKER, AGAINST C. D. OWNER, AND B. F. CONTRACTOR, FOR MATERIALS FURNISHED FOR TWO OR MORE BUILDINGS, WHERE THE AMOUNT CLAIMED IS EQUALLY DIVIDED. A. B. -> CD. &E. F.5 IN the Court, for the County of Term, 184 , No. A. B., brickmaker, of the county of , files this his claim for the payment of the sum of dollars and cents, against all those certain story brick houses, situate in the of , in the county aforesaid, at the corner of and streets, [or as the case may be,] each house being about feet in front on said street, and feet in depth on said street, and the lots or pieces of ground and curtilages ap- purtenant to said buildings : the said sum of dollars and cents, being a debt con- tracted for materials : viz., brieks, furnished by the said A. B., within six months last past, for and about the erection and construction of the said buildings, of which the said C. D. was and is the owner, or reputed owner, and E. ¥. the architect, builder and contractor for said materials, at whose instance and request they were furnished as aforesaid; and the amount claimed to be due on each of the said buildings for the said materials is dollars and cents, which the said claimant hereby designates according to the act of Assembly, in such case made and provided, and claims to have a lien for on said buildings and appur- tenances, from the commencement of the same ; and said claimant hereto annexes a bill of particulars of the amount of his said debt, showing the kind and amount of materials fur- nished, and the time when said materials were furnished as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAIM FILED BY A BRICKMAKER AGAINST C. D. OWNER, AND E. F. CON- TRACTOR, FOR MATERIALS FURNISHED FOR TWO OR MORE BUILDINGS, WHERE THE AMOUNT CLAIMED IS UNEQUALLY DIVIDED. A. B. ~) IN the Court, for the County of Terrii, 184 , No. A. B. T V. C. C. D. &E. P.3 A. B., brickmaker, of the county of , files this his claim for the payment of the MECHANICS' LIEN. , 443 « sum of dollars and cents, against all those certain brick houses, situate in , in the county aforesaid, in street, between and streets, and the lots or pieces of ground and curtilage appurtenant to the said buildings : being a debt con- tracted for materials: viz.,. bricks, &c., furnished by the said A. B., within six months last past, for and about the erection and construction of the said buildings, of which the said C. D. was and is the owner, or reputed owner, and E. F. the architect, builder, and contractor for said materials, at whose instance and request they were furnished as aforesaid : and the said A. B. hereby designates the amount he claims to be due to him for the same on each of the said buildings, as follows; yiz.,.on the northernmost of the said buildings, which is a three story [or as the case may be] brick house, feet in front on said street, by feet in depth, and the lot or piece of ground and curtilage appurtenant to said building, the sum of thousand dollars and . cents : on the southernmost of said buildings, which is a two story [or as the case may be] brick, feet in front on said street, by feet in depth, and the lot or piece of ground and cartilage appurtenant to said building, tile sum of hundred dollars and cents, according to the act of Assembly, in such case made and provided ; and claims to have a lien on the said buildings and appurtenances for the same, from the time of their commencement ; and said claimant hereunto annexes a bill of particulars of the amount of his said debt, showing the kind and amount of materials famished, and the time when said materials were furnished, as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAI9I FILED BY A BRICKMAKER AGAINST ONE WHO IS OWNER AND CON- TRACTOR, FOR MATERIALS FURNISHED FOR TWO OR. MORE BUILDINGS, WHEN THK AMOUNT CLAIMED IS UNEQUALLY DIVIDED. IN the Court, for the County of , Term, 184 , No. A. B., brickmaker, of the county of , files this his claim for the payment of the sum of dollars and cents, against all those certain brick houses, situate in the of in the county aforesaid, in street, between and streets, and the lots or pieces of ground and curtilages appurtenant to said buildings : being a debt contracted for materials : viz., bricks, furnished by the said A. B., within six months last past, for and about the erection and construction of the said buildings, of which the said C. D. was and is the owner, or reputed owner, and at his instance and request, he being the architect, contractor, and builder thereof; and the said A. B. hereby designates the amount he claims to be due for the same on each of the said buildings, as follows: viz., on the northernmost of the said buildings, which is a three story [or as the case ma!y be] brick house, feet in front on said street, by feet in depth, and the lot or piece of ground and curtilage appurtenant to said building, the sum of thousand dollars and cents : on the southernmost of said buildings, which is a two story [or as the case may be] brick, feet in front on said street, by feet in depth, and the lot or piece of ground and curtilage appurtenant to said building, the sum of hundred dollars and cents, according to the act of Assembly, in such case made and provided ; and claims to have a lien on said building and appurtenances thereto for the same, from the time of their commencement : and said claimant hereto annexes a bill of particulars of the amount of his said debt, showing the kind and amount of materials purchased, and the time when said materials were purchased as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAIM FILED AGAINST ONE WHO IS OWNER AND CONTRACTOR, BY A BRICK- LAYER, FOR WORK. A. B.T IN the court of . , for the County of Term, 184 , No. A. B., of the county of , bricklayer, claims, in his own right, a lien for the payment of the sum of dollars, against all that certain ■ story brick house, [or building,] situate [describing the situation and size of the building] in the of , in the county afore- said, and the lot or piece of ground and curtilage appurtenant to said building; the said sum of dollars, being a debt contracted for work, viz. : bricklaying, &c., done by the said A. B., within six months last past, for and about the erection and construction of the said building, of which the said C. D. was and is the owner, or reputed owner, and at his in- stance and request, he being the contractor, architect, and builder thereof; and said claimant hereto annexes a bill of particulars of the amount of his said debt, showing the nature and kind of work done, and the time when said work was done as aforesaid. (Plaintiff's bill annexed.) 444 MECHANICS' LIEN. FORM OF CLAIM FILED AGAINST C. D. OWNER, AND E. F. CONTRACTOR, BY A BRICK- LAYER, FOR WORK. A. B. -) IN the Court, for the County of , V. i Term, 184 , No. c. D.&E.r.3 A. B., bricklayer, of the county of , files this his claim, in his own right, for work, viz. : bricklayer's work done for and about the erecting and constructing a certain story brick building, (or all that certain story brick messuage and tenement,) situate, &c„ (here follows the description of its size and situation, or boundaries,) in the of , in the county aforesaid, of which C. D. was and is the owner, or reputed owner, and E. P. the architect, builder, and contractor, for said work, done by the said A. B., within six months last past, to said building, at the instance and request of the said E. F., contractor. This claim is filed as well against said building, as against the lot or piece of ground and curtilage appurtenant to the same ; and the said A. B. annexes hereto a state- ment of the particulars of the amount of his said debt, showing the nature and kind of work done, and the time when said work was done, as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAIM FILED BY A LUMBERMAN, AGAINST ONE WHO IS OWNER AND CON- TRACTOR, FOR LUMBER FURNISHED FOR ONE BUILDING. A. B. ~) IN the Court for the County of , V. C Term, 184 , No. C. D.3 A. B., lumber-merchant, of the county of , files this his claim, for the payment of the sum of dollars, and ^ cents, against all that certain story messuage and tenement, situate in , in the township of , in the county aforesaid, on the north side of road, containing in front, on said road, feet, more or less, and in depth about feet, (or otherwise describing its situation, boundaries, &c.,) and the lot or piece of ground and curtilage appurtenant to said building; the said sum of dollars and cents being a debt contracted for materials, viz. : lumber furnished by the said A. B., within six months last past, for and about the erection and construction of the said build- ing, of which the said C. D. was and is the ovfner or reputed owner, and at his instance and request, he being the contractor, architect, and builder thereof; and the said A. B. claims to have a lien for the aforesaid sum of dollars and cents, on the said building, and lot or piece of ground and curtilage appurtenant thereto, from its commencement, according to the act of Assembly in such case made and provided ; and the said claimant hereto an- nexes a bill of particulars of the amount of the said debt, showing the kind and amount of materials furnished, and the time when said materials were furnished. (Plaintiff's bill annexed^ FORM OF CLAIM FILED BY A LUMBERMAN, AGAINST C. D. OWNER, AI.D E. F. CON- TRACTOR, FOR LUMBER FURNISHED FOR ONE BUILDING. A. B. T IN the Court for the County of , i>. C Term, 184 , No. C. D. &E. F.3 A. B., lumber-merchant, of the county of , files this his claim for the payment of the sum of dollars and cents, against all that certain story messuage and tenement, situate in i in the township of , in the county aforesaid, on the south side of the road, containing in front, on said road, feet, more or less, and in depth about feet, and the lot or piece of ground and curtilage appurtenant to said building ; the said sum of dollars and- cents being a debt contracted for materials, to wil, lumber furnished by the said A. B., within six months last past, for and about the erection and construction of the said building, of which the said CD. was and is the owner, or re- puted owner, and the said E. F. the architect, builder, and contractor for said materials, nt whose instance and request they were furnished and provided, as aforesaid ; and the said A. B. claims to have a lien for the aforesaid sum, in the said building, and lot or piece of ground and curtilage appurtenant to said building, from the commencement of the same, iiccording to the act of Assembly in such case made and provided ; and said claimant here- to annexes a bill of particulars of the amount of the said debt, showing the kind and amount of materials furnished, and the time when said materials were furnished. (Plaintiff's bill annexed.) MECHANICS' LIEN. 445 FORM OF BILL FILED BY LDMBER-MBROHANTS, (PARTNERS,) AGAINST ONE WHO IS OWNER AND CONTRACTOR, FOR LUMBER FURNISHED FOR TWO OR MORE BUILDINGS, WHERE THE AMOUNT CLAIMED IS EQUALLY DIVIDED. A. B. and CD., merchants in copaTtnership,~l IN the Court, for the County of , trading under the firm of A. B. & Co. I Term, 184 , No. V. f E. F. J A. B. and C. D., lumber-merchants in copartnership, trading under the .firm of A. B. & Co., of the county of , file this their claim, for the payment of the sum of dollars and cents, against all those certain story houses, situate in the of , in the county aforesaid, in street, between and streets, each house heing about feet in front on said street, and in depth about feet, and the lots or pieces of ground and curtilages appurtenant to said buildings ; the said sum of dollars and cents being a debt contracted for materials, viz. : lumber found, furnished, and pro- vided by the said A. B. and C. D., within six months last past, for and about the erection and construction of the said buildings, of which the said E. F. was and is the owner or re- puted owner, and at his instance and request, he being the contractor, architect, and builder thereof; and the amount claimed to be due on each of the said, buildings, for materials found, furnished, and provided, as aforesaid, is dollars and cents, which the said claimants hereby designate, according to the act of Assembly in such case made and pro- vided, and claim to have a lien for on said buildings and appurtenances, from the commence- ment of the same ; and said claimants hereto annex a bill of particulars of the amount of their said debt, showing the kind and amount of materials furnished, and the time when said materials were furnished, as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAIM FILED BY LUMBERMEN, (PARTNERS,) AGAINST E. F. THE OWNER OR REPUTED OWNER, AND G. H. CONTRACTOR, FOR LUMBER FURNISHED FOR TWO OR MORE BUILDINGS, WHERE THE AMOUNT CLAIMED IS EQUALLY DIVIDED. A. B. and C. D., lumber-merchants in T copartnership, &c. &c., (see last form,) 1 IN the Court, for the County of , V. f Term, 184 , No. E. F. and G. H. J A. B. and C. D., lumber-merchants, &c. &c., [as per last form,] of the county of , file this their claim for the payment of dollars and cents, against all those certain story houses, situate in the of , in the county aforesaid, between and streets, in street, each house being about feet in front on said street, and feet in depth., and the lots or pieces of ground and curtilages appurtenant to said buildings : the said sum of dollars and cents, being a debt contracted for materials : viz., lumber found, furnished, and provided, within six months last past, by the said A. B. and C. D., for and about the erection and construction of the said buildings, of which the said E. F. was and is the owner, or reputed owner, and the said G. H. the archi- tect, builder and contractor for said materials, at whose instance and request they were found, furnished, and provided, as aforesaid; and the amount claimed to be due on each of the said buildings for the said materials, is dollars and cents, which the said claimants hereby designate, according to the act of Assembly, in such case made and provided, and claim to have a lien for on said buildings and appurtenances from the commencement of the sanie ; and said claimants hereto annex a bill of particulars of the amount of their said debt, showing the kind and amount of materials furnished, and the time when said materials were furnished, as aforesaid. (PlaintilTs bill annexed.) FORM OF CLA'm FILED BY LUMBER-MERCHANTS, (PARTNERS,) AGAINST ONE WHO IS OWNER AND CONTRACTOR, FOR LUMBER FURNISHED FOR TWO OR MORE BUILDINGS, WHERE THE AMOUNT CLAIMED IS UNEQUALLY DIVIDED. A. B. and C. D., lumber-merchants IM the Court, for the County of Term, 184 , No. in copartnership, trading tjnder the firm of A. B. fjCo. IV E. F. A. B. and C. D., lumber-merchants in copartnership, trading under the firm of A. B. & Co., 9f the county of , file this, their claim for the payment of the sum of . . dollars and cents, against all those certain Houses situate in the of , iii. the county aforesaid, in street, hetween , . and^ streets, Nos. and , and the lots or pieces of ground and curtilages appurien^nt to said buildings;- being a debt contracted- 446 MECHANICS' LIEN. for materialSj to wit,' lumber furnished by tlie said A. B. and C. D., within six months Jasl past, for and abont the erection and construction of the said buildings, of which the said E. P. was and is the owner, or reputed owner, and at his instance and request,, he being tha architect, contractor, and builder thereof: and the said A. B. and C. D. hereby designate tha amount they claim to be due to them for the same, on each of the said buildings, as follows : viz., on the northernmost of the said buildings, which is a three story (or as the case may be) brick house, feet in front on said street, by feet in depth, and the lot or piece of ground and curtilage appurtenant to said building, the sum of thousand dollars and cents : on the southernmost of said buildings, which is a two story (or as the case may be) brick, feet in front on said street, by feet in depth, and the lot or piece of ground and curtilage appurtenant to said building, the sum of hundred dollars and cents, according to the act of Assembly, in such case made and provided, and claim to have a lien on said buildings and appurtenances thereto for the sum aforesaid, from the time of their commencement : and said claimants hereto annex a biM of particulars of the amount of their said debt, showing the kind and amount of materials furnished, and the time when said materials were furnished, as aforesaid. (Plaintiff's bill annexed.) FORM OF CLAIM FILED" BY LUMBER-MERCHANTS, (PARTNERS,) AGAINST E. F: OWNER, AND G. H. CONTRACTOR, FOR LUMBER FURNISHED FOR TWO OR MORE BUILDINGS, WHERE THE AMOUNT CLAIMED IS UNEQUALLY DIVIDED. A. B. and C. D., lumberO merchants, &C.&C.-&C., ( IN the Court, for the County of , V. fTerm, 184 , No. . E. F. and G. H. J A. B. and CD., lumber-merchants, &c. &c., (as per last form,) file this claim for the pay- ment of the sum of dollars and cents, against all those certain houses situate in , in the county of , aforesaid, in street, between and streets, and the lots or pieces of ground and curtilages appurtenant to said buildings : being a debt contracted for materials, to wit, lumber furnished by the said A. B. and C. D., within six months last past, for and about the erection, and construction of the said buildings, of which the said E. F. was and is the owner, or reputed owner, and the said G. H. the architect, builder, and contractor for the said materials, at whose instance and request they weie fur- nished, as aforesaid ; and the said A. B. and C. D. hereby designate the amount they claim to be due to them for the said materials on each of the said buildings, as follows : viz., in the northernmost of the said buildings, which is a story brick house, feet in front on said street, by feet in depth, and the lot or piece of ground and curtilage appurte- nant to said building, the sum of thousand dollars and cents : on the southern- most of the said buildings, which is a ^ story frame tenement, feet in front on said street, by feet in depth, and the lot ot piece of ground appurtenant to said building, the sum of dollars, according to the act of Assembly, tn such case made and pro- vided, and claim to have a lien on the said buildings and appurtenances for the same, from the time of the commencement: and said' claimants hereto annex a bill of particulars of the amount of their said debt, showing the kind and amount of materials furnished, and the time when the said materials were furnished,' as aforesaid; (Plaintiff's bill annexed.) FORM OF CLAIM BY A PAINTER AND GLAZIER' AGAINST ONE WHO IS OWNER AND CONTRACTOR, ; FOR WORK AND MATERIALS FOR ONE BUILDING. A B "> ■ ■ / IN the Co^rt, for the County of , j5'_j3_C Term, 184, No. A. B., painter and glazier, of the county of , files this his claim for the payment of the sum of ' dollars and cents againstall that certain • story messuage and tenement, situate (describing the boundaries and situation, according to the other forms) in the town of , in the township of , (or city, as the case may be,) m the county of , and the lot or piece of ground and curtilage appurtenant to said building ; the said sum of dollars and cents, being a debt con- tracted for work : viz., painting and glazing; and materials : viz., paintj glass, putty, &c., (as the case may be,) done and furnished by the said A. B., within six months last past, to, in, and about the erection and oonstniotion of the said building, of which the said C. D. was and is the owner or reputed owner, and at his instance and request, he bfeing the con- tractor, architect, and builder itoreof; and the Said A. B. claimn to \\nve a lien on the said building and lot or pieOe' of ground and curtilage appurtenant to said building, from the commencement thereof, for the sura aforesaid, according to the act of Assembly in such case made and provided j and said claimant htrelo annext-s a bill of Jxiitlcalars Of the MILL DAMS. 447 amount of his said debt, Showingf tlie nature and hind of work done, tlie kind and aihount of materials furnished, and the time when the said work was done and materials furnished. (Plaintiff's bill annexed,) FORM OF CLAIM BY A PAINTER AND GLAZIER AGAINST C. D. OWNER, AND E. F. CONTRACTOR, FOR WORK AND MATERIALS FOR ONE BUILDINC. ^' ^' 7 IN the court of , for the County of C.D.atdE.F.5 Term, 184, No. A. B., painter and glazier, of the county of , files this his claim for the payment of the sum of dollars and cents, against all that certain story building, situate, &c. &c., (see other forms) in the of in the county of , and the lot or piece of ground and curtilage appurtenant to said building; the said sum of dollars and cents, being a debt contracted for work : viz., painting and glaz- ing, and materials: viz., (naming them) done and furnished by the said A. B. within siic months last past, to, in and about the erection and construction of the said building, oi which the said C. D. was and is the owner or reputed owner, and E. F. the architect, builder, and contractor for said work and materials, at whpse instance and request they were done, furnished, and provided as aforesaid ; and the said A. B. claims to have a lien on the said building, and lot or piece of ground and curtilage appurtenant to said build- ing, from the commencement thereof, for the sum aforesaid, according to the act of Assembly in such case made and provided ; and said claimant hereto annexes a bill of particulars of the amount of his said debt,. showing the nature and kind, of work done, the kind and amount of materials famished, and the time .when the said' work was done and materials furnished. (Plaintiff's bill annexed.) I. The owner of boats or rafts suffering I II. Judicial decisions., damage by such dams to be compensated. | I. Act OP March 23, 1803. Purd. 858. Sunl. 220. Sect. HI. If the owner or owners of any rafl, boat, or other vessel, or other per- son having the charge thereof, shall be obstructed, or sulTer damage, or shall be de- layed in his or their passage on any stream within the jurisdiction of this common- wealth, that now is, or hereafter may he, declared a public highway, by any dam or dams as aforesaid, or fish dam or other device whatsoever, made or erected in any stream, which was decliared by law to be a public stream or highway, within the jurisdiction of this commonwealth, before the time the. dEunage actually happened, it shall be the duty of any Justice of the Peace of .the couioty where such dam or . dams as aforesaid, or fish dams, or other device, is.or are made or erected, on appli- cation of the owner or ovniers of the. raft, boat^ or. other Vessel oi of the person hay- ing the charge thereof, to cause the owner of such dam or dams, or flther. device, forthwith to appear before him, the said justice : and if, on the appearance of the * said owner, the parties cannot agree in respect to the damage alleged to be done, cr in the choice of referees to determine the same, it shall be the duty of the said justice forthwith to appoint three disinterested persons, whose duty it shall be to view the injury so sustained, and inquire into the loss occasioned by delay, and make ah es- timate thereof, on oath or affirmation, if such oath or affirmation is required by either of the parties; and it shall be the duty of such justice of the peace forthwith to award judgment, and issue execution in a summary manner, for the amount, with costs of suit: Provided, however, that the said damages, so to be recovered, db not in the whole exceed the sum of fifty dollars ; but if 'dairiages shall be. alleged to a greater amount than fifty dollars, the same may be. sued for and recovered in the court of Common Pleas of thfe county wherein the .said damages shall have 'been sustained : ,3hd provided aho, that appeals shall be lillowed from the Judgment df the justice of the peace, giwen for damages as. afpresaid, to the court df Common Pleas, as in other cases. 3 P. B. ISO. 4 W. 45?. 1 Barr, 1{(5. 448 NAME. II. 1. The erection of a mill dam across a navigable stream of water, by the owner of the land through which it passes, is not a pubhc nuisance to which the common law remedy of abatement may be apphed. The only remedy in such case is that which is directed by the (above) act, 23d March, 1803, which must be speci- fically pursued. 3 fV. 230. 2. Under the act of 23d March, 1803, the owner of a dam is answerable for in- juries occasioned to navigators and others, by the formation of bars of sand, and' other obstructions consequential upon the erection of the dam, whether it be well or ill constructed. 4 Ibid. 437. 1. Misfeasance is the improper performance of some act which might lawfully be done. 1 Chit. PI. 135. 2. An action on the case lies against an officer for maliciously executing process in an oppressive and unreasonable manner, with intent to vex, harass, and oppress the party. 5 Johns. R. 125. 3. As where a constable, having a warrant against the plaintiff for a mihtary fine, refused to take property tendered by him, but took and sold his horse, with the avowed intent of hurting his feelings, and otherwise vexing him. Ibid. 4. An action on the case lies against a justice of the peace for a false return to a certiorari brought to reverse his j udgment, notwithstanding the judgment was affirmed by default of plaintiff in error. 14 Johns. 195. 2 D. 114. 5. No action lies at the suit of an individual against a public officer for misbeha- viour in office, neither for misfeasance in non-performance, unless the plaintiff can show a special damage peculiar to himself. 19 Johns. 223. 6. No action lies for merely bringing a suit without sufficient ground. 10 Johns. 156. 7. An action lies against an innkeeper for goods lost or stolen out of his inn, with- out proving neghgence. 14 Johns. 175. 1. Current fini. lawful rvLoney axe, synonymous. 1 D. 136. 2. The word specie is synonymous with gold and silver, real efficient money, solid coin, or current money. 4 F. 95. 3. When foreign money is the object of the suit, the settled rule is, that the value must be fixed according to the rate of exchange at the time of trial. 5 S. ^ E. 48. 4. 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. 1 W. Sf S. 92. S. The addition of junior to a name is mere description of the person, and the omission of it does not affect or invalidate any act or proceeding done by the same person. 7 Johns. 549. 2. An initial letter interposed betwixt the Christian and surname is no part of cither. 4 JV. 329. 3. A variance or mistake in the names of parties to a contract, whether indivi- duals or corporations, is not fatal to their contract, if there can be a sufficient de- scription of the parties whereby they are known. 10 Mass. 300. NEaLIGENCE. 449 4. Where two names have the same ori^al derivatiGU, or where one is an abbre- viation or corruption of the other, but both are taken promiscuously and aooordiilg to common use to be the same, though differing in sound, the use of one for the other is not a material misnomer. 1 W. C. C. R. 285. 5. Whether Harry and Henry are the same name, so that an attainder of Harry Gordon by the name of Henry Gordon is valid, duhitatur. Ibid. 6. In cases of pleas of misnomer, questions of identity, &c., the change of the let- ters of a name which does not alter the sound, is not a fatal variance, as SJiackspere {or Shakspeare. 7 S.SfR. 419. 7. But in an indictment for forgery, &c., which professes to set out an instrument in hcBc verba, the change of a letter is fatal, though the word be idem sonans [sound- ing the same]. Ibid. 8. Identity of name is ordinarily, but not alwa.japrim& facie evidence of personal identity. Identity of name is something from which an inference may be drawn, unless the name be a very common one, or the transaction remote. 2 Barr, 183. 4 Ad. that he had in the state from which he escaped; the court have not the slightest hesitation in holding that under and in virtue of the ■ Constitution, the owner of the slave is clothed with the authority in every state of the Union, to seize and recapture his slave, wherever he can do it without any breach of the peace or illegal violence. 16 Pet. R. 539. 14. The power of legislation in relation to fu^tives from labour, is exclusive in the mational legislature.- • Ibid, and 4 Wh. 122, 193. 15. A slave, by permission of his master, going for a temporary purpose into &- free state, and afterwards returning to the state in which he was held to service, does not become free by means ' of such temporary sojourn- in a free state: his status depends upon the laws of the state to which he returns, and in which he was ori^- ally held to service. 3 .Am. L.J. 289. NOTICE. 451 I. Act of Assembly, extract from. | 11. Judicial decisions. I. Act op January 3, 1815. Purd. 874. Bunl. 318. Sect. I. The official acts, protests, and attestations of all notaries public, (acting by the authority of this commonwealth,) certified according to law, under their re- spective hands and seals, of .office, may be read and received in evidence of the facts therein certified, in all.suit? that now are or hereafter shall be depending : Provided, that any party may be permitted to contradict, by other evidence, any such certificate. II. 1. A protest for non-payment must ?.ppear under a notarial seal. 1 D. 193. 2. The certificate of a notary public, under his notarial seal, is prima-fade evi- dence that the person signing the certificate is a commissioned notary. 6S.SrE. 464. 3. A notarial protest is evidence, under the act of 1815, of notice to the endorser of a promissory note, of non-payment by the maker. Ibid. 484, 324. 4 W. 4r S. 505. 4. After the protest of a notary has been given in evidence by the plaintiflT, in a suit against the endorser of a promissory note, the defendant may call the notary to explain the protest, and even, it seems, to contradict it. 10 S.SfR. 377. And he may be compelled to testify against the truth of his certifit;ate of protest. 13 Ihid. 284. 5. The books of a notary, proved to have been regularly kept, are admissible in evidence, after his death, to prove a demand of payment, and notice of non-payment of a promissory note. ,8 Wheat. 32S. 20 Johns. R. 160. 6. A notary may authorize, by parol, another person to make presentment of a note. 18 Johns. R. 230. 7. But he is not justified in protesting a note from hearsay information from his. clerk. 2,Bfl^,410, -3^iK,.53, * 8. A protest made by ^ notary, who is a stockholder in the bank, is not admissi- ble evidence to charge the endorser. 2 W. 141. 9. The protest, of a notary public is admissible in, evidence, under the act* of 1815, however insufficiently or defectively the words may be stated with respect to demand and notice. The question of the sufficiency arises afterwards. 4 Wh. 486. Notice* 1. A NOTICE, in legal proceedings, means a written notice, and in calcujatiug time, in all notices, one day is to be taken inclusive, and the other exclusive, , 3 Johns, 209. 2 Ibid. 261. Bright. R. 121. 2. Thirty days' notice to begiyen to justices of the peace, in writing, before suit. 6 Binn. 84. & S. ^ R.^ 295. 5 S. ^ R. U, 299. 3. The notice required by the act of February 14, 1728, for marrying a minor, without the consent of parent or guardians, is only required to be a substantial no- tice of the cause of action. 12 S. S/- R. 145. 4. A party is not bound to produce a paper, unless the opposite party has given him notice for that purpose. 1 Johns. 340. 5. In a suit against a magistrate, to recover the penalty of fifty dollars, imposed by the 6th section of the act of 28th March, 1814, for taking illegal fees, brought before another magistrate, previous notice, agreeably to the act of 21st March, 1772, is ne- cessary. S S. 4" R. ^. [Opinion of Chief Justice Gtibson ; ■ " Wheii the justice goes beyond his, jurisdic- tion, h^ cannot assume an official character,, or claim its privileges, but for every act done within his jurisdiction, and by colour of his office, he is entitled to notice before a suit can be sustained ; and this, we are of opinion, is the true construction of the different laws on the subject."] (3 S. ^ R. 48.) Such notice need not specify the amount of fees which the justice might legacy have taken. ' 17 iS. ^ R. 75. 452 NUIBSNUE 6. Where a rule of court requires notice to be given to the opposite party, notice to his attorney is not sufScient. b 8. ^ R. 352. 16 Ihid. 126. • 7. Where an act of Assembly requires reasonable notice to be given by one party to the other, ten days, generally, would be sufficient. 1 P. R- 462. 8. Knowledge of a material fact, imparted by a director of a bank to the board, at a regular meeting, is notice to the bank. 10 W. 397. 9. It seems that a verbal notice will not affect a party, unless given to him in per- son. 2 Wk 193. 10. Whatever puts the party upon inquiry, amounts to notice, in judgment of law, provided the inquiry become a duty, as in case of purchasers and creditors, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and imderstanding. But notice of a rumour of a conveyance or encumbrance seems not to be considered as actual or implied notice. 7 FF. 261. 11. If one, in the course of his business, as agent, attorney, or counsel for another, obtain knowledge from which a trust would arise, and afterwards becomes the agent, attorney, or counsellor, of a subsequent purchaser, in an independent and unconnected transaction, his previous knowledge is not notice to such other person for whom he acts. 8 W. 489. [See " Actions against Justices of the Peace."] 1. Nuisance, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. There are two kinds of nuisances : public or common nuisances, which affect the public ; and private nuisances, which may be defined any thing done to the hurt or annoyance of the lands, tenements, or hereditaments, of another. 3 Bl. Com. 215. 2. If a man builds his. house so close to mine, that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nuisance, for which an action will lie. Ibid. 3. If one erect a house, or other building, so near to mine, that it obstructs my •ancient lights and windows, it is a nuisance. 2 ^m. L. J. 14. 1 Pars. Eq. Cas. 494. 4. If a person keeps his hogs, or>other noisome animals, so near the house of an- other, that the stench of them incommodes him, and makes the air unwholesome, (Lord Mansfield has said that " it is not necessary that the smell should be unwhole- some ; it is enough if it renders the enjoyment of life and property uncomfortable," 1 Burr. R. 337,) this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. A like nuisance is, if orie's neighbour sets up and exercises an offensive trade. 3 Bl. Com. 217. 5. But depriving one of a mere matter of pleasure, as of a fine prospect, by build- ing a wall, or the like, this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is, therefore, not an actionable nuisance. Ibid. 218. 6. If one erects a house for smelting lead so near the land of another that the va- pour and smoke kill his corn and grass, and damage his cattle therein, this is held to be a nuisance ; and by consequence it follows that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another's property, it is a nuisance, for it is incumbent on him to find some other place to do that act, and where it will be less offensive. Ibid. 218. 7. It will be a nuisance, if life is made uncomfortable by the apprehension of dan- ger ; it has, therefore, been held to be a nuisance, a misdemeanor, to keep great quan- tities of gunpowder near dwelling-houses. 2 Str. 1167. 8. Some actions, which would otherwise be nuisances, may be justified by neces- sity ; thus a man may throw wood into the street; for the purpose of having it carried into his house,, and it may lie there a reasonable time. 1 S. S^ R. 219. 9. So, because building is necessary, stones, brick, sand, and other materials, may be pkced in the stveet, provided it be done in the most convenient manner. Ibid. 10. So a merchant may have his goods placed in the street, for the purpose of removing them to his store in a reasonable time, but he has no right to keep them in the street for the purpose of selling them there. Ibid. OATHS AND AFFIEMATIONS. 453 11. An action cannot be supported, for an obstruction to a highway, which is a common nuisance, but by a person who has suffered some special damage. 1 Binn. 463. 12. The erection oif a building upon a public square, in a town or city, is a public nuisance, which may be abated by the party aggrieved, so as it is done peaceably and without any riot. 2 W. 23. 3 Barr, 202. 13. A grant will not be presumed of a part of a public square, or street, from the lapse of time, so as to bar an indictment for a nuisance. 1 Wh. 469. 14. If a person entitled to raise water to a certain height, by means of a dam, raises it higher than he is entitled to do, the .person injured may reduce the dam to the proper height, but has not the right to demolish it. 5 JVk. 584. 15. Lapse of time will not change the nature of a nuisanoe, because statutes of limitation run not against the public. 7 W. 450. 7 Perm. L. J. 82. 16. All erections of every kind; adapted to sports or amusements, having no useful end, and notoriously fitted up and continued in order to make profit for the owner, are regarded by the common law as nuisances. 5 Hill, 121. 17. A pig-sty, in a city, is per se a nuisance. (7 Penn. L. J. 82.) " There are some trades so necessarily offensive, that merely carrying them on within the limits of a populous city, is in itself a nuisance : the law is perfectly well settled that a hog- pen in a city is a nuisance." Ibid., per Sergeant, J. (1) Bright. R. 69. 18. It is a public nuisance, and indictable at common law, to plaxje on the footway of a public street, a stall for the SEjJe of fruit and confectionery, although the defend- ant pay rent to the owner of the adjoining premises, for the use of so much of the pavement as is occupied by him. 1 Am. L. J. 548. Bright. R. 318. £etofAprill2,18lil. Pamph. bl8. Sect. II. That any chartered railroad company in this commonwealth obstructing or impeding the free use or passage of any private road or crossing-place, by standing burden car or engines, or placing other obstructions on any railroad, wherever any private road or crossing-place may be necessary to enable the occupant or occupants of land or farms to pass over any railroad with horses, cows, hogs, sheep, carts, wagons, and implements of husbandry; shall, for every such offence, after any agent or other person in the employment of any railroad company shall have received at least fifteen minutes' verbal notice to remove burden cars, engines, or other obstructions from any private road or crossing-place that may pass over any railroad, be liable for a penalty of thirty dollars, which shall be for the use of the person or persons aggrieved, and which shall be recovered before any justice of the peace, in the same manner that debts not exceeding one hundred dollars are by law recoverable. And in all suits or actions that may he brought. against any railroad company fdr the recovery of said penalty of thirty dollars, the service of legal process on any agent or other person in the employment of any railroad 'company shall be as good and available in law, as if made on the president thereof. Jcl of May 31, 1718. Purd. 877. Dunl. 67. Sect. III. All and all manner of crimes and offences, matters and causes whatso- ever to be inquired of, heard, tried and determined, by virtue of this or any other act or law of this province, or otherwise, shall and may be inquired of, heard, tried and determined by judges, justices, inquests, and witnesses, qualifying themselves accord- ing to their conscientious persuasion respectively, either by taking a corporal oath, or by the solemn afiBrmation allowed by act of parliament to those called Quakers in Great Britain; which affirmation of such persons as conscientiously refuse to take an oath shall be accounted and deemed, in the law, to have the full Ci^ect of an oath, in (1) In the CiymmonweaUh v. Hutz, Judge Parsons applied the same doctrine to the rural dis- tricts of Philadelphia county, — "The principle is the same everywhere," said the learned judge ; " if persons will locate their piggeries near a pubUc road, they must take the necessary care to keep them in such a cleanly state as not to annoy the passengers along the road." Bright. R. 75. 454 0PFICEE8, PUBLIC. Uriy FA. 542. 15. If one partner convert property which came into the possession of the firm, on partnership account, it is the conversion of all, and makes them all liable in trover, 4 .B. 120. * 16. Two partners holding a judgment, one of them assigned it to a third person, and guarantied the payment thereof, in the partnership name : Held, that an action could not be supported against the firm on such guaranty, without proof that it was in the course of their business to give such guaranties, or that both partners assented to the making of it, or knowing it, did not dissent. 2 P. R. 177. 17. A note signed by one partner, or by the clerk in tne name of a firm, is prima facie evidence that it was given for the debt of the firm. Ibid. 160. 18. If a note be given by one partner, in the name of the firm, for his own private debt, and the other partner, upon being informed of the transaction, does not dissent or give notice to the payee, that he will not be liable, he shall be bound. Ibid. 2 W. Sr S. 153. 19. A partner has no power to bind his copartner by a confession. of judgment ag-ainst the firm; but if such a judgment be confessed, it will bind the partner who did it, and be void as to the other. \ W. Sf S. 340. 20. A judgment entered upon a warrant, sealed by a partner, in the name ,of bis firm, binds no one but himself; but a subsequent revival of it by the attorney of all the partners cures the irregularity. Ibid. 519. 7 W. 331. 31. A firm cannot be charged with a debt contracted by one of the partners before the partnership was constituted, although the. subject matter which was the consideration of the debt has been carried into the partnership as stock. Nor can the firm be charged with rent which accrued upon a lease to one of the partners. 5 W. 196. 23. If one partner sign and seal an instrument in the firm's name, and the other partner be present assenting to it, he is as much bound by the instrument as if he had signed and sealed it. Any evidence which tends to establish the fact of his having assented to it is admissible. 5 W. 159. 1 P. E. 285. 7 W. 331. 23. One partner may transfer the whole stock in trade of the firm ;. and if pos- session be delivered, and the transaction be bona fide., it matters not whether the instrument be under seal or otherwise. Ibid. 23. See 3 S.m. L. J. 489. 34. If a partner borrow money and give his individual note for it, it does not become a partnership debt, by reason of the application of the money to partner- ship purposes. Ibid. 454. 25. A note made by one partner wherein he says, " I promise to pay," &c., but subscribes the partnership name, is binding on the firm. 11 Johns. JR. 544. 7 W. 193. 26. Even if a bill be accepted in the name of one partner only, and not in that of the firm, yet if the bill be addressed to the firm, all the members of it, whether dormant or not, will be bound by such acceptance. Collyer on Part. 224, 226. 37. If a member of a club orders goods for the benefit of all, every member who concurs in the order, or afterwards approves of it, is liable, unless it ap- pears that the creditor, at the time of sale, gave credit to that member only. 3 Stark. 416. 28. A sale of goods on credit to one partner, in the course of the partnership business, is a sale to the firm, unless it be mkde contrary to an express notice by the other partner not to trust the firm on his account ; in which case, he alone will be liable who made the purchase, and an action to recover the price cannot be maintained against the firm, b W. fy S. 564. 39. If one of two joint partners release to a debtor of the partnership, notwith- standing he had no authority to release more than his own moiety of the debt, the action is gone against the debtor. 4 Binn. 375. 30. A partnership is entitled to recover its assets, applied by one partner to the payment of his debt, whether or not he acted in bad faith towards his copartner, in making such application ; and a recovery may be had, though such partner be a piaintifT; and this, it seems, even at law. 6 Barr, 492. 462 PARTNERSHIP. V. Dissolution of a Partnership. 1. It seems that a partnership formed by articles for a definite period, may be dis- solved by either partner, before the termination of the period. 1 J^. 381. 2. The dissolution of a partnership cannot efiect the rights of third persons. 4 F. 337. 3. The death of a partner works a dissolution of the partnership so effectually, that want of notice of it does not have the effect of making the estate of the de- ceased partner liable to debts contracted by the surviving partners, or for their mis- conduct. 1 E. 312. 4. If, however, contracts have been made and engagements entered into which have not been completed at the death of the partner, the partnership is to be con- sidered as existing for such purpose. Ibid. 5. If a contract be made with a firm to do a particular work, which is begun in the lifetime of a deceased partner, though not finished till after his death, his estate is liable if the surviving partner is insolvent. Ibid. 6. After the dissolution of the partnership, one partner cannot, by his acknow- ledgment of a subsisting debt, deprive the other partner of the benefit of the statute of hmitations. 17 S. ^ R. 126. See 1 Green. Ev. § 112. 2 Comst. 523. 7. After a dissolution of partnership, one of the partnsrs cannot bind the others by using the name of the firm ; but if, by the agreement and terms of the dissolution, it be provided that the firm name shall be used in winding up the business, and for the renewal of any notes given in banks, then all the partners will be bound by the use of it in a transaction connected with their business. 2 TV. ^ S. 172. See 3 Ibid. 345. 5 Ibid. 210. 8. After a dissolution of copartnership, one cannot confess a judgment against all who were partners, without the express authority of those not signing the confes- sion, even although for a debt bona fide due by the late copartnership. 2ilif.436. 9. After the dissolution of a partnership by agreement, the partner authorized to. settle the estate, may borrow money on the credit of the firm, to pay the debts of the firm ; and if the credit is given in good faith, though with a knowledge of the dissolution, and the money faithfully applied to the liquidation of the joint debts, the creditor has a claim against the firm, and is not to be considered as a creditor merely of the borrowing partner. 5 Wh. 530. 4 Barr, 242. 10. A judgment note, for a partnership debt, given in the name of the firm : viz., " D. Reynolds and Company," D. Reynolds being then deceased, is void as a judg- ment, not only against the estate of the deceased, but also as against the surviving partner who gave it. 10 W. 51. 11. The dissolution of a firm, and an arrangement between them, by which the debts were to be paid by one of them, does not efiect the liabihty of either to third persons who knew of the arrangement. 8 W. 485. 12. After dissolution of a partnership, one of the firm has not power to make a voluntary assignment of the effects of the partnership, for the benefit of creditors, against the express consent of his copartner. 3 W. ^ S. 4.54. 13. Notice of the dissolution of a partnership, given in a newspaper printed in the city or county where the partnership business is carried on, is of itself notice to all persons who have had no previous dealings with the firm. 4 TVh. 482. 14. But as to persons who have had dealings with the firm, general newspaper notice is not sufficient. It must be shown that actual notice of the dissolution vvas communicated to the party in some way or other. Ibid. '2 Harris, 469. VI. Actions betwekn Partners. 1. If two be jointly concerned in an adventure, and one acting fairly, and for the best, according to his judgment, produce a loss, he is not answerable to the other. 2 W. C. C. li. 224. 2. One partner cannot sustain assumpsit against another, after the partnership is dissolved, unless the balance be struck, or a promise to pay be made, either expressly or by keeping, for a considerable time, a stated account, sent to him by the other, nnd not objecting. 1 76tU 435. A W. Sf S. \i. 3. One partner cannot maintain assumpsit against the executor or administrator PARTNERSHIP. 463 of the other, for the proceeds of a partnership adventure, unless they have settled their accounts, and struck a balance. ' 4 D. 434. 9 S. ^ S. 241. 4. This balance must have been struck by themselves by agreement. It is not sufficient that it may be deduced from the partnership books. 9 S. 4' i?. 241, 5. If an agreement of settlement between partners be set aside in an action upon it, the parties are thereby restored, to their original rights and liabilities ; and an action of account render will afterwards lie by one against the other. 1 W. ^~ S. 342. 6. Contribution may be obtained in an action of assumpsit, by one partner against another, for money laid out to its use. . Gary on Part. 26. G W. S(, S. 335. 7. One partner may maintain an action for money had and received against the other partner, for money received to the separate use of the former, and wrongfully carried.to the partnership account. 2 T. M. 199. VII. Of Actions by and against, Partners. 1. Partners in actions instituted to enforce contracts made with them must all join ; or if one or more of them be dead, the survivors must join. 2. If a house, consisting of several acting partners, carry on business in the name of one, he cannot, alone, maintain an action for goods sold by the house, though the contract was made vdth hiili only, nor can the names of the others be added, after the action is brought. 8 S, ^ R.- 53. 3. It is not requisite to the maintenance of an action commenced by the real members of a firm, that its nominal members should be joined, if it appear that such nominal members have not any interest in the concern. 2 Johns. Cds. 374. 4. And the proof that the ostensible partner is not really a partner, lies on the i)laintiff. 1 C. ^ P. 89. U East, 210. 5.' In the event of the death of one or more of the partners, to whom the cause of action accrued, the legal remedy vests in the surviving partners, and not in them jointly with the executors or- administrators of the deceased partnen 1 ,D. 248. 5-5.^^.86. 1 W.^ S.240. 6. In an action brought against a partnership firm', on a partnership contract, all those who were partners at the time of the contract ought to be joined as defendants. CoUyer on Part. 420. 7. If one of several partners die, the action must be brought against the survi- vors, and if the executor or administrator of the deceased partner be sued, he may either plead the survivorship in bar, or give it in evidence under the general issue. Ibid. 428. 3 Pe.nn. L. J. 378. 8. Upon the death of the last surviving partner, an action on the partnership ac- count must be brought against his executors or administrators only, without joining the executors or administrators of the other partners. Ibid. 428. 9. An action for a partnership debt may be maintained in this state against the executor (or admiidstrator) of a deceased partner, the other partner being alive, but a certificated bankrupt before action brought. 1 £inn. 123. 7 S. ^ P. 365.' 10. A judgment obtained by one firm against another, each of which is constituted, in part, of the same members, some of them being both plaintiff and defendant, can- not be executed by a levy upon the separate property of an individual member of the defendant firm. 6 W. ^ S. 465. 1 1 A judgment in favour of one firm, against another, one of the partners being a member of both firms, is a lien upon the separate real estate of Such partner ; but such separate estate cannot be seized in execution until the accounts are taken, and the equities settled between the parties. 1 Am. L. J. 208. 12. The act of 14th April, 1838, allowing the same person to be plaintifi^and de- fendant in a cause, is restricted to cases in which the same individual is a member of two distinct copartnerships. Hence, one partner cannot bring assumpsit against himself and his copartners) instead of account-render against them. S P. L. J. 225. 13. Where a surviving partner administers to the estate of his deceased copartner^ the balance due to the decedent, upon a settlement of the partnership accounts, is assets in his hands, as administrator ; and the settlement of his administraticin, ac- count necessarily draws into iiiyestigation the partnership, transactions, for. tha purpose of ascertaining the amount so due to the decedent. Bright. Dig. 317. 464 PARTNERSHIP. 14. After bankruptcy of a partner, he cannot be joined as plaintiff with his" co- partner ; but where such action ia brought into the Common Pleas, by appeal from a magistrate, the assignee may be substituted. 3 Barr, 433. Jet of April 6, IB30. Purd. 920. Dunl. 50S. Sect. I. In all suits now pending, or hereafter to be brought in any court of re- cord of this commonwealth, against joint and several obligors, copartners, promis- sors, or the endorsers of promissory notes, in which the writ or process has not l)een, or may not be served on all the defendants, and judgment may be obtained against those served with process, such writ, process or judgment, shall not be a bar to recovery in another suit against the defendant or defendants, not served with process. [See 2 Harris, 313.] Sect. IJ. In all cases of amicable confession of judgment by one or more of seve- ral obligors, copartners or promissors, or the endorsers of promissory notes, such judgment shall not be a bar to recovery, in such suit or suits as may have to be brought against those who refuse to confess judgment. Act of April 14, 1838. Purd. 920. Jhml 851. Sect. I. No action now pending on a writ of error, or otherwise, or hereafter to be brought by partners or several persons, against partners or several persons, shall abate, or the right of such partners or several persons plaintifls, to sustain their ac- tion, be defeated by reason of one or more individuals being or having been mem- bers of both firms, or being or having been of the parties plaintifls and also of the parties defendants, in the same suit, nor shall the judgment rendered therein, if still pending on a writ of error, be affirmed against the right of such plaintiff or plaintiffs to sustain such action, nor reversed for the purpose of defeating such right ; but the .same shall proceed to trial and judgment as though the parties plaintiffs and defend- ants were separate and distinct persons, and the acts and declarations of the partner or persons so being of both the parties plaintiffs and defendants, shall be evidence to affect each party, respectively, in like manner and to the same extent as the acts and declarations of the other partners or persons plaintiffs or defendants, would affect the respective firms or parties : Provided, That no act or declaration of the party shall be given in evidence in his own favour, to the prejudice of others. Act of April 11, 1848. Bunl. 1124. Sect. III. Where a judgment shall hereafter be obtained against two or more co- partners, or joint or several obligors, promissors or contractors, the death of one or more of the defendants shall not discharge his or their estate or estates, real or per- sonal, from the payment thereof; but the same shall be payable by his or their exe- cutors or administrators, as if the judgment had been several against the deceased alone. Sect. IV. In any suit or suits which may hereafter be brought against the execu- tors or administrators of a deceased copartner, for the debt of the firm, it shall not be necessary to aver on the record, or prove on the trial, that the surviving partner or partners is or are insolvent, to enable the plaintiff to recover. Sect. V. Where a judgment shall be hereafter recovered against one or more of several copartners, or joint and several obligors, promissors or contractors, without any plea in abatement, that all the parties to the instrnment or contract on which the suit is founded, are not made parties thereto, such judgment shall not be a bar to a recovery in any subsequent suit or suits against any person or persons, who might have been joined in the action in which such judgment was obtained, whether the same shall be obtained amicably or by adversary process. (1) (1) The act of 14tli April, 1851, {Pamph. 615,) requires all partnerships now, or hereafter to be formed, to file in the prothonotary'a office of the proper county "the names and location of the members of such partnership, and the style and name of the same," and as often as any change in the members of such firm shall take place, the same to be certified by the members of such new partnership; in default of which they shall not be permitted to plead any misnomer, or the omission of the name of any member of the firm, or the joinder of the names of persons not mem- bers of the partnership, PARTNERSHIP. '465 VIII.- Limited Partnership. Act of March 21, 1836. Purd. 921. Bunl. 702. Sect. I. Limited partnerships for the transaction of any agricultural, mercantile, mechanical, mining and transporting of coal, or manufacturing business, within this state, may be formed by two or more persons, upon the terms, with the rights and powers, and subject to the conditions and liabilities herein prescribed ; but the pro- visions of this act shall not be construed to authorize any such partnership for the purpose of banking or making insurance. Sect. II. Such partnerships may consist of one or more persons, who shall be called general partners, aiid who shall be jointly and severally responsible as general partners now are by law, and of one or more persons who shall contribute in actual cash payments, a specific sum as capital to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership beyond the fund so contributed by him or them to the capital. Sect. III. The general partners only shall be authorized to transact business and sign for the partnership, and to bind the same. Sect. IV. The persons desirous of forming such partnership shall make and seve- ■ rally sign a certificate, which shall contain : — 1. The name or firm under which such partnership is to be conducted. 2. The general nature of the business intended to be transacted. 3. The names of all the general and special partners interested therein, distinguish- ing which are general and which are special partners, and their respective places of residence. 4. The amount of capital which each special partner shall have contributed to the common stock. 5. The period at which the partnership is to commence, and the period at which it will terminate. Sect. V. The certificate shall be acknowledged by the several persons signing the same, in the manner, and before the same persons, J,hat deeds are now acknowledged, , and the said acknowledgment shall be certified in the same manner as the acknow- ledgment of deeds are now certified. Sect. VI. Tlie certificate so acknowledged and certified, shall be recorded and filed in the office of the recorder of deeds of the proper county, in which the princi- pal place of business of the partnership shall be situated, and shall also be recorded by him at large in a book to be kept for that purpose open to public inspection : If ' the partnership shall have places of business situated in different counties, a tran- script of the certificate and of the acknowledgment thereof, duly certified by the re- corder in whose office it shall be filed, and under his official seal, shall be filed and recorded in like manner in the office of the recorder of every such county. Sect. VII. At the time of filing the original certificate, with the evidence of the acknowledgment thereof, as before directed, an affidavit of one or more of the general partners shall also be filed in the same office, stating the sums specified in the certi- ficate to have been contributed by each of the special partners to the common stock, and to have been actually, and in good faith, paid in cash. Sect. VIII. No such partnership shall be deemed to have been formed until a certificate shall have been made, acknowledged and filed, and recorded, nor until an affidavit shall have been filed as above directed; and if any false statement be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof, as general partners. Sect. IX. The partners shall publish the terms of the partnership, when registered,... for at least six weeks immediately after such registry, in two newspapers, to be de- signated by the recorder of deeds of the county iii which such registry shall be ■ made, and to be published in the county or counties in which their business shall j be carried on ; and if such publication be not made, the partnership shall be deemed - general. Sect. X. Affidavits of the publication of such notice by the printers of the news- papers in which the same shall be published, may be filed with the recorder, direclr- ing the same, and shall be evidence of the facts therein contained. 2e i66 PARTNERSHIP. Sect. XI. Every renewal or continuance of such partnership beyond the time ori- ginally fixed for its duration, shall be certified, acknowledged and recorded, and an affidavit of a general partner be made and filed, and notice be given in the manner lierein required for its original formation, and every such partnership which shall be otherwise renewed or continued, shall be deemed a general partnership. Sect. XII. Eveiy alteration which shall be made in the names of the partners, in the nature of the business, or in the capital or shares thereof, or in any other matter specified in the original certificate, shall be deemed a dissolution of the partnership, and every such partnership which shall in any manner be carried on after any such alteration shall have been made, shall be deemed a general partnership, unless re- newed as a special partnership, according to the provisions of the last section. Sect. Xlll. The business of the partnership shall be conducted under a firm, in which the names of the general partners only shall be inserted, without the addition of the word " Company," or any other general term, and if the name of any special partner shall be used in such firm, with his privity, he shall be deemed a general partner. Sect. XIV. Suits in relation to the business of the partnership may be brought and conducted by and against the general partners, in the same manner as if there were no special partners. Sect. XV. No part of the sum which any special partner shall have contributed sto the capital stock, shall be liable for any debts previously contracted by the gene- !Tal partners, nor shall any part of such sum be withdrawn by him, or paid or trans- rforred to him in the shape of dividends, profits, or otherwise, at any time during the 'Continuance of the partnership ; but any partner may annually receive lawfiil interest ■ on the sura so contributed by him, if the payment of such interest shall not reduce (the original amount of such capital, and if after the payment of such interest, any ;profits shall remain to be divided, he may also receive his portion of such profits. Sect. XVI. If it shall appear that by the payment of interest or profits to any spe- "cial partner, the original capital has been reduced, the partner receiving the same fehall be bound to restore the amount necessary to make good his share of capital, with interest. Sect. XVII. A special partner may, from time to lime, examine into the state and progress of the partnership concerns, and may advise as to their management, but he shall not transact any business on account of the partnership, nor be employed for that purpose -as agent, attorney, or otherwise; if he shall interfere contrary to ' these provisions, he shall be deemed a general partner. Sect. XVill. The general partners shall be liable to account to each other and to (he special partners, for the management of their concern, both in law and equity, as other partners now are by law. Sect. XIX. Everj^ partner who shall be guilty of any fraud in the aflairs of the : partnership, shall be liable civilly to the party injured, to the extent of his damage. Sect. XX. Every sale, assignment, or transfer of any of the property or effects of such partnership, made by such partnership when insolvent, or in contemplation of : insolvency, or after or in contemplation of the insolvency of any partner, with the intent of giving a preference to any creditor of such partnership or insolvent partner ■ over other creditors of such partnership, and every judgment confessed, lien created, or security given by any such partner under the like circumstances and with the like intent, shall be void as against the creditors of the partnership. Sect. XXI. Every such sale, assignment, or transfer of any of the property or • etrecis of the general or special partner, made by such general or special partner when insolvent, or in contemplation of insolvency, or after or in contemplation of tlie insolvency of the partnership, with the intent of giving to any creditor of his ■ own Or of the partnership a preference over creditors of the partnership, and every judgment confessed, lien created, or security given by any such partner under the ( like cu'cumstances and with the like intent, shall be void as against the creditors of the partnership. Sect. XXII. Every special partner who shall violate any provision of the two last preceding sections, or who shall concur in or assent to any such violation by tiie partnership, or by any individual partner, shall be liable as a general partner. Sect. XXllI. In case of the insolvency or bankruptcy of the partnership, no spe- PARTNERSHIP. 467 rial partner shall, under any circumstances, be allowed to claim as a creditor, until the claims of all the other creditors of the partnership shall be satisfied. Sect. XXIV. No dissolution of such partnership by the acts of the parties, shall >ake place previous to the time specified in the certificate of its formation, or in the certificate of its renewal, until a notice of such dissolution shall have been filed and recorded in the recorder's ofiice in which the original certificate was recorded, and published once in each week for four weeks, in a newspaper printed in each of the counties where the partnership may have places of business. Resolution of Aprilie, IS38. Purd. 923. Dunl.857. A general partner in any limited partnership may, with the assent in writing of his partner, by deed duly acknowledged and recorded, or by last will and testament, in writing, sell, assign, dispose of or bequeath his interest in such limited partnership ; and when such general partner dies without having disposed of his interest in such limited partnership, his administrator or executor may, in like manner, sell, assign and transfer his interest therein for the benefit of his estate ; and on every such sale, transfer or bequest, a corresponding alteration shall be made in the name or firm under which the business of such partnership is conducted, and, the same shall be forthwith acknowledged, certified, recorded and published, in the same manner as is provided by law in the case of the original formation of the partnership. A special partner, with the assent of his partner, in writing, first had and obtained, may sell or assign his interest in a limited partnership, without causing thereby a dissolution of the partnership. The insolvency of any special partner shall not cause a dissolution of the limited partnership, but his interest therein shall be sold by his assignees for the benefit of his creditors. When any special partner shall die, without having disposed of his interest in the limited partnership, his executor or administrator may either continue his interest therein for its unexpired term, for the benefit of his estate, or may sell the same at public auction, under the direction of the Orphans' Court of the county in which the principal place of business of such partnership may be^ in the same manner as the estates of intestates are now by law sold ; testamentary dispositions, in writing, of the interest of special partners may also be made ; the decease of special partners shall not dissolve such limited partnership, unless, by the agreement between the parties, it is provided that such decease shall have that efiect. . Every alteration in such limited partnership, according to the provisions of this resolve, shall be notified to the general partner, and shall be duly acknowledged, certified and recorded, as in the case of the original fprnfiation of such partnership. 1 . A limited partnership may be formed to buy for a single adventure, — as a drove of cattle ; which done, the power of one partner to bind the other by additional purchases ceases when the drove is started. 3 B. Munroe, 263. 3. In New York, a publication of the terms of a limited partnership within three days after the registry thereof, is a compliance with the statute. 24 Wend. 496. 3. So, the statute is complied with, if the terms of the partnership are published in a daily paper once in each week for six successive weeks ; each publication being deemed to represent seven days. Ibid. 4. In the publication of the certificate of the terms of a limited partnership, a mistake in the publication of the names of the partners, — as Argale for Argall, — will not vitiate the publication : whether or not the mistake tended to mislead, should be left to the jury. Ibid. 5. A mistake of the printer in giving notice of a special partnership, stating that $5000 had been put in, instead of §2000, renders the special partners general. 6 Hill, 479. 3 Denio, 436. 6. The plaintiff, in such case, need not prove that he was misled by the notice. Jbid. 7. In an action to charge special partners as endorsers, it appeared that the pub- lished notice stated that the partnership would commence Nov. 16, 1837, whereas the certificate filed stated Oct. 16, 1837 : held, that unless the error of the publics 468 PARTY WALL. tion was designed to deceive, or the endorsement made lefore Nov. 16, 1837, the special partners were not liable. 5 Hill, 309. 8. A special partner, transacting any business for the firm, becomes a general partner, and liable for the debts of the firm. Ibid. 9. Where evidence is given to show, prima facie, that the special partner did not pay in the amount specified by the affidavit filed pursuant to the statute, such affi- davit is not even yrimn /acie rebutting evidence. Ibid. 10. Unless the conditions of the act relating to limited partnerships are strictly complied with, the partners are generally liable : hence, where such a partnership was formed, consisting of the general and one special partner, and the firm name was a company, the special partner is generally liable. 10 Barr, 47. 11. Where a third person enters the firm as a general partner, the special partner- ship is dissolved; and if there be a renewal, and not a new cash payment by the former and continuing special partner, but the cash paid into the former special part- nership remains with the new firm, and constitutes the cash paid into the new firm by the special partner, he becomes a general partner of the renewed firm. Ibid. 12. In such cases, knowledge, by creditors, of the existence of the special part- nership agreement at the time the contracts are made, does not discharge the special partner from his general liability. Ibid. 13. A judgment confessed by one partner to another, to secure the amount of the capital stock advanced by such partner, who had agreed to enter into a special part- nership, but became a general partner, by reason of non-compliance with the requi- sitions of the act of Assembly, is valid against a separate creditor of the partner who confessed the judgment. 6 Barr, 490. 1. No action will lie to recover the moiety of the cost of a party wall, under the act of 1721, (see Purd: 1176, Dunl. 72,) until the second house is actually begun. If it be begun, and a breach be made in the wall before payment, the first builder may maintain trespass, or, it seems, he may waive the trespass, and bring assumpsit for money paid, laid out, &c. 1 D. 346. 2. The moiety of the cost of a party wall is a personal charge against the builder of the second house, and not a lien on the house itself. 5 S. Sf R. I. 3. Therefore, the purchaser of the second house is not liable to the claim of the first builder, who has neglected or declined to insist upon the payment before the wall was broken into, (1 D. 346,) and on payment of the moiety, by the owner of the adjoining lot, to the first builder, the claim is satisfied, and a purchaser from the first builder cannot afterwards recover the amount, whenti second building is erected, although he has no notice of the payment, and no instrument acknowledging the payment has been put on record. 5 S. ^ iJ. 1. 4. 'The first builder upon adjoining lots, in a town, is bound to use suitable mate- rials, and build them skilfully, in the foundation and wall of partition ; for if, upon the excavation for and construction of a house upon the adjoining lot, notwithstanding the use of proper and ordinary care and diligence, the first walls should fall, in con- sequence of their defects, it must be regarded as a loss without injury. 7 W. 460. 5. 'On the completion of a building, the ^arty wall is the property of the owner of the house, and not of the contractor. 2 ^m. L. J. 191. Ilrid. 326. 6. The party by whose order a house is erected is the builder, and liable for, the value of the party wall, althbugh the house was erected under a contract for a gross sum, "including party walls," which had been paid. 9 Barr. 501. 7. The right to compensation for a party wall is personal to the first builder: hence, where a house was greeted on land conveyed to husband and wife, and the heirs of the wife, the husband and his creditors are entitled to the compensation. Ibid. PAWNS Oa PLEDGES. 469 8. The right to compensation for a party wall does not pass by a conveyance of the land, but remains in the original builder and his legal representatives, who alone are entitled to bring suit for it. 10 Barr, 219. Ibid. 155. 9. A court of equity will restrain a builder from using his neighbour's party wall, before payment of a moiety of the cost thereof, by injunction. 2 Am. L. J. 327. 1 Pars. Eq. Cas. 494. Act of April 10, 1849. Dunl 1188. Secx. IV. In all conveyances of houses and buildings, the right to, and compensa- tion for, the party wall built therewith, shall be' taken to have passed to the purchaser, unless otherwise expressed; and the owner of the house for the time being, shall have all the remedies in respect of such party wall, as he might have in relation to the house to which this is attached ; and so much of any previous law as is inconsistent with the provisions of this section, is hereby repealed. (1) I. Act of Assembly. | II. Judicial authorities. I. Act of June 16, 1836. Purd. 445. Dunl. 812. Sect. XXIII. Goods or chattels of the defendant in any writ oi fieri facias, which shall have been pawned or pledged by him as security for any debt or liability, or which have been demised, or in any manner delivered or bailed, for a time, shall be liable to sale, upon execution as aforesaid, subject, nevertheless, to all and singular the rights and interests of the pawnee, bailee, or lessee, to the possession or other- wise, of such chattels or goods, by reason of such pledge, demise, or bailment. II. 1. If a man put a chattel into the possession of a mechanic, for the purpose of repair, and the mechanic pledge it, the owner may maintain trover against the pawn- broker, without previously tendering the sum for which it was pledged. 1 Br. 43. 2. When the goods are pledged for an indefinite period of time, the pawnee cannot sell them without notice to the person by whom they were pledged. 1 Br, 174. 3. The pawnee of goods may recover their full value, in trespass, against a stranger who takes them away, although they are pledged to him for less, being answerable for the excess. 5 Binn. 457. 4. Possession of the property is essential to the existence of a pledge, but the pos- session may be according to the nature of the subject. 2 Comst. 443. Bright. R. 52. And, after a sale of the goods, under an execution against the pawnor, the pawnee is entitied to the possession, until redeemed by the purchaser. 1 Comst. 20. Bright. Dig. 284. 5. If goods are redeemable at a day certain, it must be strictly observed, and the pawnee, in case of failure of payment at the day, may sell them, (1 Rol. Rep. 181, 215,) but still the right owner has his redemption in equity, as in case of a mortgage. .1 Inst. 205. Shep. 106. 6. If the pawn is laid up, and the pawnee robbed, through the want of ordinary care on his part, he is answerable, otherwise he is not; though if the pawnee useth the thing, as a jewel, watch, &o., that will not be the worse for wearing, which he may do, it is at his peril, and if he is robbed, he is answerable to the owner, as the using occasions the loss, &o. 3 Salk. 268. 1 Bui. Rep. 181. 7. A pawnee has a special property in the pledge, and may assign it, and the as- signee may consequently assert his title to it, against the owner, or one standing in his place; 4 W. 414. 8. Although a pawnee use the pawn tortiously, yet he is answerable by action only ; he does not thereby forfeit his lien. Ibid. 9. A pawnee or lessee of goods may maintain trespass against the owner of the good% as well as against a stranger, for taking them away during the existence of his property in them. 3 Wh. 258. (1) This act is not retrospective in its operation, and does not operate on deeds executed befcre its passage. 2 Harris, 435. ' 470 PERJURY AND SUBORNATION OF PERJURY. All actions, suits, &c., which shall be brought for any forfeiture upon any penal act of Assembly, whereby the forfeiture is limited to the commonwealth only, shall be brought within two years after the offence was committed ; and where the bene- fit of any forfeiture ,is limited to the commonwealth and.to the prosecutor, all ac- tions, suits, &c., shall be brought within one year after the offence was committed ; and in the latter case, in default of any person prosecuting, then the same may be prosecuted for the commonwealth, any time within one year after that year ended. Furd.ni. Dmm?. 150. [See « Limitation of Actions."] 1. In an action of debt for penalties, the general evidence for the plaintiff is proof of the commission of the act upon which the penalty has accrued, and if a lime be limited by the statute for bringing the action, that the action was brought within that time, and, where the venue is local, that the action is brought in the proper county. i?oscoe's.Eu. 331. 3. Where an act of Assembly, creating an offence, provides " that the person so offending, on conviction thereof before a justice of the county, shall pay a fine of five dollars for every such offence, to be recovered, as debts of equal amount are by law recovered, by any person who may sue for the same," the offender need not be con- victed, either by indictment or by a summary process, before the justice, but simply in an action of debt, by a judgment for the penalty, if proved guilty of the offence. ' 10 W. 382. 3. But where an act of assembly imposes a penalty, and gives authority to justices of the peace to take cognisance of the violation, but prescribes no method or form for the prosecution, the conviction must be in accordance with the rules of the com- mon law. 1 Am. L. J. 246. [See " Summary Convictions."] 4. Where an offence made penal by statute is in its nature single, and cannot be severed, there the penalty shall be only single, though several persons may join in the commission of it : but when the offence is in its nature several, there every offender is separately liable for the penalty. Covop. 610. Esp. on Penal Act. 69. 5. When a penal action is to be brought within one year, the day of committing the offence is inclusive. Hob. 139. 6. The record must show a title in the plaintiff under some clause in the statute under which he sues ; but where there is also an exception, or clause amounting to an exception from the penalty, from some particular circumstances, the rule, as to where it is necessary to set it out, and where not, is this : — If the exception is part of the enacting clause itself which gives the penalty, there it must be negatived ; but where the exception is by another and distinct clause in the statute, or where it arises under another statute, then it need not be set out, but must be used by the defendant as matter of defence. 1 T. R. 144. 7 T. R. 27. ^erlttrg jiutr Sutiovnatton of |3etiuts. I. Judicial authorities and definitions. I II. Form of an information, and warrants for I perjury and subornation of perjury. 1. 1. Perjdry is defined to be committed when a lawful oath is administered in some judicial proceeding, to a person who sweai's wilfully, absolutely, and falsely, in a matter material to the issue or point in question. 4 Bl. Com. 137. 4 Penn. L. J. 103- 2. The law takes no notice of any perjury, but such as is committed in some court of justice having power to administer an oath, or before some magistrate or proper officer, invested with a similar authority in some proceedings relative to a civil suit or a criminal prosecution; for it esteems all other oaths unnecessary at PERJUKY AND SUBORNATION OF PERJUBY. 471 least, and therefore will not punish the breach of them. For which reason it is much to he questioned how far any magistrate is justifiable in taking a voluntary ahdavit in any extra-judicial matter. The perjury must also be corrupt, (that is, committed malo animo, with a wicked intent,) wilful, positive and absolute, not upon surprise or the like. It must also be in some point material to the " question in dispute, or if it only be in some trifling collateral circumstance, to which no regard is paid, it is no more penal than in the voluntary extra-judicial oaths above mentioned. Ibid. 3. Subornation of perjury is the offence of procuring another to take such a false oath as constitutes perjury in the principal. Ibid, 4. False swearing, in a voluntary affidavit made before a justice of the peace, before whom no cause is pending, is not perjury ; nor can it be punished by in- dictment. ,.,... ' !• 1 U 5. At common law, one may be guilty of perjury in respect to a false oatti taken by him in his own cause, in answer to questions put to him in a court of law, to purge him on oath concerning his knowledge of the matter in dispute f but 'under statute 5 Eliz. c. 9, (which is in force in Pennsylvania,) no other perjury is punishable but such as is committed by a witness. 3 F. 413. 6. Perjury consists in swearing falsely and corruptly, contrary to the belief of the witness ; and not in swearing rashly and inconsiderately^ according to his belief. 1 Bald. 370. 7. A prosecution for perjury alleged to have been committed in an affidavit of de- fence in a civil action, cannot be instituted until after final judgment therein. 5 Penn. L. J. 164. 8. There must be two witnesses, upon an indictment for perjury ; one alone is not sufficient, because there is in that case only one oath against another. JVhart. Cr. L. 211. 6 Barr, 170. 1 West. Leg. Obs. 313. For the qualifications of this rule, see 1 Greenl. Ev. § 257. 14 Pet. 440. And the testimony of a single witness is sufficient to prove that the defendant swore as charged in the indictment. 12 Met. 225. II. Infokmation or a Witness in a Case of Perjury. rar/OiV COUNTY, ss. THE' information of A. B., of IJeaver township, in the county of Union, yeoman, taken upon oath before J. R., one of the' justices of the peace in and for the said county, the tenth day of June, A. D. 1844, who saith that on the 12th day of May last, at about eight o'clock in the morning, he set out in company with a certain C. D. from Selin's Grove, and arrived that same day, towards evening, at Danville, in Columbia county, and remained there all that evening and night. (Signed,) A. B. Signed and subscribed, June 10, A. D. 1844, before J. R., Justice of the Peace. WARRANT FOR PERJURY. UmON COUNTY, ss. JJiie fflommoniDealtJ of JPennsnlbanfa, To the Constable of the Township of Beaver, in the County of Union, greeting : 'WHEREAS, a certain 0. D., of the township of Beaver, in the county of Union, currier, being duly summoned to appear before J. R., one of our justices of the peace in and for the said county, to give evidence in a certain action depending before our said justice, wherein G. H. was plaintiff, and' H. J. defendant, did appear accordingly, on the 22d day of May last, at the office of our said justice, in the county aforesaid, and then and there being duly sworn by our said justice to say the truth, the whole truth, and nothing but the truth, the said C. D., among other things, did depose and say that he was present at New Berlin, on the 12th day of May last, at about noon, and saw G. H. pay to H. J. twenty dollars, which the said H. J. said was in full of all demands which the said G. H. had against the said H. J. And, whereas, A. B., of Beaver township aforesaid, yeoman, hath made oath before our said justice, that on the said 12th day of May last, about eight o'clock in the morning, he set out in company with the said C. D. from Selin's Grove, and arrived that same day, towards evening, at Danville. And, whereas, there are strong grounds to suspect that the aforesaid C. D. hath been guilty of wilful and corrupt peijury by swearing falsely in the said cause: you are, therefore, hereby commanded to take the said C. D. and bring him before the said J, R., or some other justice of the peace of the said county, forthwith, ftrther to be dealt with according to law. 'Witness the said J. R., at Selin's Grove aforesaid, the 11th day of June, A. D. 1844. J. R., Justice of the Peace. [seal.] 472 POOR LAWS. * • WARRANT FOR SUBORNATION OF PERJURY. L COUNTY, sa. EJe ffiommontoealti) of Jpennsslbanta, To the Constable of the Township of B., in the County of L., greeting: WHEREAS, a certain J. D., of the township of H., in the county of L., farmer, being duly summoned to appear before J. R., esquire, one of our justices of the peace in and for the said county, to give evidence in a certain action depending before our said justice, where- in J. W. is plaintiff, and J. B. defendant, did appear acoording:]y on the first day of June instant, at the office of our said justice in the borough of L., in the county aforesaid, and then and there being duly sworn by our said justice, to declare the truth, the whole truth, and nothing but the truth, the said J. D. did depose and say, that he was present at L., on the twenty-ninth day of December last, at about noon, and saw J. B. pay J. W. twenty dollars, which the said J. W. said was in full of all demands: And whereas J. L., of H. township aforesaid, farmer, hath made oath before our said justice, that on the said twenty- ninth day of December last, at about eight o'clock in the morning, he set out in company with J. W. from L., and arrived that same day towards evening at Lancaster: And where- A.S, there are strong grounds to suspect that the aforesaid J. D. hath been guilty of wilful and corrupt perjury, by swearing falsely in the said cause; and that the said J. D. hath been suborned to commit the said wilful and corrupt perjury, by his master the said J. B: These are therefore to command you to take the said J. B., and bring him before the said J. R., forthwith, to be examined in the premises, and further to be dealt with according to law. Witness the said J. R., at L. aforesaid, the first day of July, in the year of our Lord one thousand eight hundred and forty-four. J. R. 1. In England physicians cannot sue for fees. But in Pennsylvania the law is held differently; and this diiference is founded on practice and acts of Assembly. h S. Sr R. 416. 2. Medicine furnished and medical attendance given during the last illness of decedept, [the person deceased,] to be paid first by executors, &c. Purd. Alb. Dunl. 588. 3. In taking an inquisition of death, super visum corporis, the coroner, as a public agent, has authority to order a post mortem examination at the public charge ; and the physician or surgeon employed by him, to perform such service, is employed by the county, and is entitled to a reasonable compensation from the county, for his services. 3 Barr; 462. L Legislative provisions relating to the I 11. Judicial decisions and authorities poor. I I. Act of June 13, 1836. Purd. 952. Jhml. 715. Sect. I. It shall be the duty of the overseers of every district, from time to time, to provide as is hereinafter directed, for every poor person within the district having a settlement therein, who shall apply to them for relief. Sect. II. If such poor person be able to work, but cannot find employment, it shall be the duty of the overseers to provide work for him, according to his ability, and for this purpose, they shall procure suitable places, and a sufficient stock of materials. Sect. III. It shall be lawful for the overseers of any district, with the concurrence and under the directions of the supervisors of the township, to t'.nploy such person, 'being a male of sufficient ability, in opening or repairing any road or highway with- in the district. POOR LAWS. 473 • ' Sect. IV. If such poor person, by reason of age, disease, infirmity, or other dis- ability, be unable to work, it shall be the duty of the overseers to provide him with the necessary means of subsistence. Sect. V. It shall also be the duty of the overseers of every district, to furnish reh'ef to every poor person within the district, not having a settlement therein, who shall apply to them for reUef, until such person can be removed to the place of his settlement. Sect. VI, No person shall be entered on the poor book of any district, or receive relief from any overseers, before such person, or some one in his behalf, shall have procured an order from two magistrates of the county for the same ; and in case any overseer shall enter in the ^^ proper" book, or relieve such poor person without such order, he shall forfeit a sum equal to the amount or value given, unless such entry or relief shall be approved of by two magistrates as aforesaid. Sect. VII. It shall be lawful for the overseers of every district, to contract with any person for a house or lodging for keeping, maintaining and employing such poor persons of the district as shall be adjudged proper objects of relief, and there to keep, maintain and employ such poor persons, and to receive the benefit of their work and labour, for and towards their maintenance and support ; and if any poor person shall refuse to be kept and employed in such house, he shall not be entitled to receive relief from the overseers dujing such refusal. Sect. VIII. It shall be lawful for the overseers of every district, with the appro- bation and consent of two or more magistrates of the same county, to put out as ap- prentices 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 appren- ticeship, if a male, do expire at or before the age of twenty-one years, and if a fe- male, at or before the age of eighteen years." Sect. LK. A settlement may be gained in any district : — Mrst. By any such person who shall come to inhabit in the same, and who shall, ■for himself and on his own account, execute any public office, being legally placed therein, during one whole year. Second. By any such person who shall be charged with and pay his proportion "" of any pubhc taxes or levies for two years successively. Third. By any person who shall bona fide take a lease of any real estate of the yearly value of " ten" dollars, and shall dwell upon the same, for one whole year, and pay the said rent.(l) Fourth. By any person who shall become seised of any freehold estate within such district, and who shall dwell upon the same, for one whole year. Fifth. By any unmarried person not halving a child, who shall be lawfully bound or hired as a servant within such district, and shall continue in sUch service during one whdle year. 5 Wh. 430. Sixth. By any person who shall be duly bound an apprentice by indenture, and shall inhabit in the district with his master or mistress for one whole year. Seventh. By any indented servant, legally and directly imported from Europe into this commonwealth, who shall serve for the space of sixty days in the district into which he shall first come : Provided, that if such servant shall afterwards duly serve in any other district for the space of twelve months, either with his first em- ployer or his assignee, he shall obtain a legal settlement in such other district. Eighth. By any mariner coming into this commonwealth, and by any other healthy person coming directly from a foreign country into the same, if such, ma- riner or other person shall reside for the space of twelve months m' the district in which he shall first settle and reside. Sect. X. Every married woman shall be deemed, during coverture, and after her husband's death, to be settled in the place where he was last settled ; but if he " shall have no known settlement, then she shall be deemed, whether he be living or dead, to be settled in the place where she was leist settled before her marriage. Sect. XI. Every illegitimate child shall be deemed to be settled in the place where the mother was legally settled at the time of the birth of such child. (1) By an act passed May 85, 1840, the sum required in any of the wards, districts, and townships of the city and county of Philadelphia, shall be ten pounds in lieu of ten dollars. i74. POOR LAWS. Sect. XII. If the last place of settlement of any person who shall have become chargeable, shall be in any township which shall have been divided by, the author- ity of the laws, such person shall be supported by that township within the territory of which he resided at the time of gaining such settlement. Sect. XIII. It shall be the duty of every housekeeper who shall receive into his house any person who has not gained a legal settlement in some part of this com- monwealth, (all mariners coming into this commonwealth, and every other healthy person coming from a foreign country immediately into this commonwealth, only excepted,) within ten days after receiving such person, to give notice thereof, in writing, to the overseers of the proper district. Sect. XIV. If any housekeeper shall fail to give notice as aforesaid, and if the jjerson so received shall become poor and unable to maintain himself, and cannot be removed to the place of his last legal settlement in any other state, if any such lie hath, such housekeeper shall be obliged to provide for and maintain such poor per- son ; and in case of the death of such poor person, without leaving wherewithal to defray the expense of his funeral, such housekeeper shall pay the overseers so much as they shall reasonably expend for such purpose. Sect. XV. If such housekeeper shall refuse to pay the charges aforesaid, the overseers shall assess upon him the amount necessary to maintain such poor person, weekly, or such sum as shall be necessary to pay such funeral charges, and shall have power to collect the same by warrant of distress ; but if such delinquent shall have no goods or chattels liable to distress, he may be committed to jaU, there to re- main until he shall have paid the same, or shall be otherwise legally discharged. Sect. XVI. On complaint made by the overseers oi" any district to one of the ma- gistrates of the same county, it shall be lawful for the said magistrate, with any other magistrate of the county where any person has or is likely to become charge- able to such district into which he shall come, by their warrant, or order, directed to such overseers, to remove such person, " at the expense of the district," to the city, district, or place, where he was last legally settled, "lohether in or out of Pennsyl- vania," unless such person shall give sufficient security to indemnify such district to which he is likely to become chargeable as aforesaid. Sect. XVII. Provided, that it shall not be lawful, by virtue of any order of re- moval, to separate any wife from her husband. (2) Sect. XVIII. It shall be the duty of the guardians or overseers of the city or dis- trict to which such poor person may be removed, by warrant or order, as aforesaid, to receive such poor person; and if any such guardian or overseer shall refuse or neglect so to do, he shall forfeit, for every such offence, the sum of twenty dollars, to be recovered as hereinafter provided, and applied to the use of the poor of the district from which such poor person may be removed as aforesaid. Sect. XIX. Provided always, that any person aggrieved by any such order of re- moval, may appeal to the next court of Quarter Sessions for the county from which such poor person may be removed, and not elsewhere, and if there be any defect of form in such order, the said court shall cause the same to be amended, without cost to the party, and after such amendment, if the same be necessary, shall proceed to hear and determine the cause upon its truth and merits ; but no such cause shall be proceeded in, unless reasonable notice shall have been given by the party appellant to the overseers of the district from which the removal shall have been made, the reasonableness of which notice shall be determined by the said court, at the session to which the appeal may be made, and if it shall appear to them that reasonable no- tice was not given, they shall adjourn the appeal to their next session, and then de- termine the same. Sect. XX. For the more effectual preventing of vexatious removals and frivolous appeals, the court of Cluarter Sessions, upon every appeal in a case of settlement, or upon proof being made before them of notice thereof, as aforesaid, (though the appeal be not afterwards prosecuted,) shall, at the same session, order to the party in whose behalf such appeal shall be determfned, or to whom such notice did appear to have been given, such costs and charges as the said court shall consider reasonable and (3) There is in this prohibition the same tenderness and respect for the feelings and do mestic affections of the poor, which has always been manifested by the legislators of Penn- sylvania. Long may they continue to be thus honourably distinguished ! POOR LAWS. 475 just, to be paid by the overseers or other person against -whom such appeal shall be determined, or by» the person that gave such notice ; and if the court shall determine in favour of the appellant that such poor person was unduly removed, they shall, at the same session, on demand, award to such appellant so much money as shall ap- pear to them to have been reasonably paid, by the city or district appellant, towards the rehef of such poor person, between the time of such undue removal and the de- termination of such appeal, with costs,, as aforesaid. Sect. XXI. If any person, ordered to pay costs or charges as aforesaid, other than overseers as aforesaid, shall live out of the jurisdiction of such court, it shall he the duty of any magistrate of the county in which such person shaU reside, on re- quest to him made, and on the production of a copy of such order, certified under the seal of such court, to issue his warrant to levy the same by distress ; and if no sufficient distress can be had, to commit such party to the common jail, there to re- main, without bail or mainprise, until such costs or money be paid, or until he be otherwise legedly discharged. Sect. XXII. If any overseer be ordered to pay costs or charges as aforesaid, and the township liable therefor be out of the jurisdiction of such court, it shall be the duty of the court of Gluarter Sessions of the county in which such township is situate, on request to them jnade, and on the production of a copy of such order, certified un- der the seal of the court making the same, to compel payment of such costs and charges, according to law. Sect. XXIII. If any person shaU come out of any city or district in this common- wealth, into any other district, and shall happen to fall sick or die before he have gained a settlement thereinj so that he cannot be removed, the overseers of such dis- trict shall, as soon as conveniently may be, give notice to the guardians or overseers of the city or district where such person had last gained a settlement, or to one of them, of the name, circumstances, and condition, of such poor person, and if the guardians or overseers to whom such notice shall be given, shall neglect or refuse to pay the moneys expended for the use of such poor person, and to take order for relieving and maintaining him, or in case of his death' before such notice could bfe given, shall, on request made, neglect or refuse to pay the moneys expended in maintaining and burying such poor person, in every such case it shall be the duty of the court of Gluarter Sessions of the county where "such poor person was last set- tled, upon complaint to them made, to compel payment by such guardians or over- seers, of all such sums of money as were necessarily expended for such purpose, in the manner directed by law in the case of a judgment obtained against overseers. 7 W. 527. Sect. XXIV. If any magistrate shall refuse to grant a warrant or order of removal as aforesaid, it shall be lawful for the overseers aggrieved by such refusal, to appeal to the next court of Quarter Sessions of the county in which such magistrate resides, who shall thereupon hear and finally determine the same. , Sect. XXV. If any person shall bring or cause to be brought, any poor person from any place vsrithout this commonwealth to any place within it, " where such person was not last legally settled," and there leave, or attempt to leave such person, he shall forfeit and pay the sum of seventy-five dollars for every such poor person, to be sued for and recovered by the overseers of the district, into which such poor person may have been brought, and moreover, shall be obliged to convey such poor person out of the commonwealth, or support him at his own expense. Sect. XXVI. If any person shall bring, or cause to be brought into this commonwealth, any black or coloured indented servant, such person, his " or her" heirs, executors, administrators and assigns, shall respectively be liable to the guardians or overseers of the city or district to which such black or coloured person shall become chargeable, for such necessary expenses as such guardians or overseers may be put to for his " or her" maintenance, support and interment, together with the costs thereon. Sect. XXVII. Every person in whom the ownership or right to the service of any negro or mulatto slave shall be vested, shall be liable to the overseers of the district in which [such] negro or mulatto shall become chargeable, for all ex- penses which such overseers may be put to for the maintenance, support and interment of such negro or mulatto, with the costs thereon. 476 POOR LAWS. Sect. XXVIII, The father and grandfather, and the mother and grand- mother, and the children and grandchildren, of every poor person not able to work, shall, at their own charge, being of sufficient ability, relieve and maintain such poor person, at such rate as the court of Quarter Sessions of the county where such poor person resides shall order and direct, on pain of forfeiting a sum not exceeding twenty dollars for every month they shall fail therein, which shall be levied by the process of the said court, and applied to the relief and mainte- nance of such poor person. 6 Penn. L. J. 433. Sect. XXIX. If any man shall separate himself from his wife, witLout reasonable cause, or shall desert his children, or if any woman shall desert her children, leaving them a charge upon the district, in any such case it shall be law- ful for any two magistrates of the county, upon complaint made by the overseers of the district, 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 war- rant ; 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) befojp such magistrates, at a time to be specified in such warrant. Sect. XXX. 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 Gluarter' 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. Sect. XXXI. The warrant aforesaid shall be returned to the next court 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 pur- pose aforesaid, and therein authorizing the overseers to dispose of the goods and chattels 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 shaD 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 perform- ance thereof, or be discharged by due course of law. Sect. XXXII. The following described persons shall be liable to the pe- nalties imposed by law upon vagrants , — First, All persons who shall unlawfully return into any district, whence they have been legally removed, without bringing a certificate from the city or district to which they belong. Second, All persons who, not having wherewith to maintain themselves and their families, live idly and without employment, and refuse to work for the usual and common wages given to other labourers in the like work, in the place where they then are. Third, All persons who shall refuse to perform the work which shall be allotted to them by the overseers of the poor as aforesaid. Fourth, All persons going about from door to door, or placing themselves in streets, highways, or other roads, to beg or gather alms, and all other persons wandering abroad and begging. Fyth, All persons who shall come from any place without this commonwealth, to any place within it, and shall be found loitering or residing therein, and shall follow no labour, trade, occupation or business, and have no visible means of "subsistence," and can give no reasonable account of themselves, or their busi- ness, in such place. Sect. XXXIII. It shall be lawful for the directors of the poor of any county, and for the overseers of any district, as the case may be, in which any person shall have become chargeable, to sue for and recover any real or personal estate belonging to such person, and to sell or otherwise dispose of the personal property, and to collect and receive the rents and profits of the real estate, and to apply the proceeds, or so much thereof as may be necessary to defray the ex POOR LAWS. 477 penses incurred in the support and funeral of such person, and if any balance shall remain, the same shall be paid over to the legal representatives of such per- son after his death, upon demand made and security being given to indemnify such directors or overseers from the claims of all other persons. Sect. XXXIV. It shall be the duty of the directors of the poor of the seve- ral counties in which poor-houses are or may be erected, once in every year, after " the" accounts shall have been audited and settled, to make out a full and correct statement of their receipts and expenditures for the preceding year, to- gether with a statement of the number of poor persons supported, specifying their sex, age, or infirmity, if any, and of the profits arising from all farms under their directions ; and it shall be the duty of such directors, annually in the month of March, to publish such accounts and statement, at least twice, in two or more newspapers printed in such county, the expense of which shall be paid out of the county treasury, and forthwith transmit a copy of such accounts and statement to the governof, to be by him transmitted to the legislature : "Provided, That the accounts of the guardians for the relief and employment of the poor of the city of Philadelphia, the district of Southwark, and the townships of the Northern Liberties and Pennj shall be audited at the almshouse of, said corporation, in the township of Blockley, in Philadelphia county." Sect. XXXV. It shall be the duty of every justice, who shall by virtue of any law of this commonwealth receive any fine, penalty, or forfeiture appropriated by law for the use of the poor, forthwith to enter at length on his docket the name of the person convicted, the offence committed, the amount of such fine, penalty or forfeiture, and the time when the same was paid, and forthwith to deliver a correct transcript of such entry to a constable of the township, and such justice shall, on demand, pay over the same to the overseers of the poor lawfully entitled thereto, and shall annually, if required, exhibit his docket to the inspection of the township auditors. (3) Sect.- XXXVI. If any justice shall wilfully neglect or refuse to perform the duties enjoined on him as aforesaid, touching any fine, penalty or forfeiture appropriated to the use of the poor, he shall, on conviction thereof, in the court of Q,uarter Sessions of the proper county, be deemed guilty of a misdemeanor in office, and fined, for the use of the poor of the township in which he shall reside, any sum not exceeding twenty dollars, and if he shall be convicted of neglecting or refusing to pay over on demand, to the proper overseers, any money which he shall have received ' as aforesaid, he shall be fined, over and above the last-mentioned "sum," any sum not exceeding double the Eimount which he shall have received as aforesaid, which sums shall be recovered by process of said court. Sect. XXXVII. It shall be the duty of the overseers of every district, to de- mand from every justice the amount of any fine, penalty, or forfeiture that may have been received by him for the use of the poor, and if the same be not paid to them within twenty days, to proceed to recover the same by suit against sucli justice, in the manner that debts of the like amount are or may be by law re- coverable. Sect. XXXVIII. It shall be the duty of the clerk of every court by whom any fine shall be imposed, which by law is to be appropriated, in whole or in part, to the use of the poor, forthwith to deliver a written notice of the same to a con- stable, living in or near the township in which the person fined resides, for which service such clerk shall receive the sum of twenty-five cents from the proper over- seers, and no more. Sect. XXXIX. It shall be the duty of the constable to whom any tran- script or certificate shall be deUvered by a justice of the peace or clerk of the court as aforesaid, under a penalty of ten dollars, to be recovered before any other justice of the proper county, to dehver such transcript or certificate to one of the (3) The provisions of this section require the prompt and steady attention of fevery jus- tice of the peace. It is with regret we come to the conclusion that they carry with them au imputation of former neglect or forgetfulness. The provisions of the next section would seem yet more certainly to cast ah impatation. The conduct of the magistracy should bu ->-Uke that of Cajsar's wife — not only pure, but unsuspected. 478 POOR LAWS. overseers of the district to which such fine, penalty or forfeiture belongs, and ft f such service, such constable shall be entitled to receive from such overseers the sum of twenty-five cents, and no more. Sect. XL. It shall be the duty of every sheriff who shall have received any fine, penalty, or forfeiture, which by law may be appropriated to the use of the poor, to pay the same on demand, to the proper overseers, and if he shall fail to do so, within ten days after demand, he shall, on conviction thereof in the court of Q,uartej Sessions of the proper county, be fined and pay to the use of the poor of the propei district, any sum not exceeding double the amount received by him, to be recovered by the process of the said court. Sect. XLL In all cases where there are no poor persons supported at the expense of a district, or where there shall remain in the hands of the overseers, at the end of the year, an unexpended balance, arising from fines, penalties, or for- feitures received for the use of the poor, it shall be the duty of the overseers to pay all such fines, penalties, and forfeitures as may have been received by them, and such unexpended balance, to the supervisors of the highways, to be applied to the repairs of the public roads in such district, unless the township auditors shall judge it necessary that the whole or part thereof should be retained as a fund for the use of the poor. Sect. XLII. If any overseer shall neglect or refuse to perform any duty en- joined upon him by law, and not otherwise provided for, he shall be liable to an indictment for a misdemeanor, and shall be punished by a fine not exceeding one hundred dollars, at the discretion of the court, to be recovered by the process thereof. Sect. XLIII. The several fines, forfeitures, and penalties, and other sums of-money imposed or directed to be paid by this act, .and not herein directed to be otherwise recovered, shall be levied and recovered by distress and sale of the goods and chattels of the delinquent or offender, by warrant, under the hand and seal of any one magistrate of the city or county where such dehnquent or offender dwells, or where such goods and chattels may be found, and after satisfaction made of such fines, forfeitures, and penalties, and sums of money, together with the legal charges^, on the recovery thereof, the overplus, if any, shall be returned to th^wner of such goods and chattels, his executors or administrators. Sect. XLIV. If any person shall be aggrieved by the judgment of any cne or more magistrates in pursuance of this act, he may appeal to the next court of (Quarter Sessions for the county in which such magistrates reside, (except in cases hereinbefore specially provided for,) whose decision in all such cases shall be final and conclusive. Sect. XLV. The word "district" in this act sliall be construed and taken In mean "township" and "borough," and every other territorial or municipal division, in and for which officers charged with the rehef 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 any special provision made by law for any city, county, township, borough, or other territorial or municipal divisions. Sect. XL VI. " It is hereby declared to be the meaning of the third section of the act, entitled ' An act to provide for the erection of a house for the emploT- ment and support of the poor in the county of Washington,' approved the sixth day of April, anno Domini one thousand eight hundred and thirty, that the directors of said institution have power to bind out as apprentices such poor children as may come under their notice, according to the directions of said art, without tht^ appro-, bation and consent of two or more magistrates." .Rcl of March 2, mi. Purd. 9!"i8. Dunl 98. Sect. XV. All gifts, grants, devises and bequests, hereafter to be made, of any houses, lands, tenements, rents, goods, chattels, sum or sums of money, not exceeding in the whole, including all gifts, grants, devises and bequests, heretofore made, the yearly value of five hundred pounds, to the poor of any borough or town- ship within this province, (except the townships as before excepted,) or to any other person or persons for their use, by deed, or by the last will and testament of any POOR LAWS. 479 person or persons, or otherwise howsoever, shall be good and available in law, and shall pass such houses, lands, tenements, rents, goods and chattels, to the overseers of the poor of such borough or township, for the use of their poor respectively. [The excepted townships are Moyamensing, Passyunk and Northern Liberties, in the county of Philadelphia.] Sect. XXXIII. If any action shall be brought against any overseer or other person, who, in his aid, and by his command, shall do any thing concerning' his office, he may plead the general issue, and give this act, and any special matter in evidence, and if the plaintiff shall fail in his action, discontinue the same, or become nonsuit, he shall pay double costs. II. 1. Settlement. To constitute such a contract of hiring as is necessary to gain a settlement by service under it, any declarations or acts of the parties which evince their assent to an agreement expressed at the time, are sufficient ; a precise and for- mal stipulation being unnecessary. 2 W. 44. 2. If a pauper comes from a district in which he had gained a settlement, into another district, and very shortly afterwards is taken sick and suddenly dies, before notice is given to the district to which he belongs of his sickness, &c., this district is chargeable for the expenses of his maintenance and burial, which had been defrayed by the district in which his death occurred. 7 W. 527. 3. The revision of the Supreme Court on a certiorari to the Quarter Sessions of the county in such a case, is confined to "the regularity of the proceedings, and does not extend to the examination of the merits. 7 ^F. 527. 4. Under the act of 1836, section 9, it is not necessary that there should have been a contract for service for a year, to gain a settlement. It is sufficient if there has been a service for a year under one or more contracts. 5 Wh. 430. 5. A person hiring as a servant, and continuing and abiding in such service for a year, in a township, gains a legal settlement there. 2 >Ssh. 9. 6. It is not necessary that the lease mentioned in the act of assembly should be in writing: going into possession and paying rent for the premiseSj which are of the yearly value of $10, and dwelling upon the same, for one whole year, gives a settle- ment. The rent. need not be paid in money, but "may be paid in labour, or- otherwise. Such houses as are usually erected about furnaces, for the labourers, are tenements within the meaning of the act. 1 Jones, 254. Nor is it necessaiy the residence should have been in one tenement ; or that the pauper should have paid all the rent he contracted for, provided the sum paid amount to $10. 2 Harris, 138. 7. Under the 9th section (art. 5) of the act of 1836, an unmarried woman not having a child, will not gain a settlement by service without a hiring under a contract, expp'ss or implied. 5 Barr, 283. 8. Orders of relief and removal. An informality in the proceedings of justices to remove ;i pauper cannot be taken advantage of after an appeal to the Quarter Sessions, and a decision there upon its merits. 2 W. 43. 9. If a person suddenly fall sick, and after an order for his relief, die, the township where his legal settlement was at the time of his death is liable for the expenses of his maintenance and burial, although the overseers thereof had no notice until after hie death. 7 Ibid. 527. 10. A justice of the peace is incompetent to grant an order for the removalof a pauper from his own township to another. 5 W. ^ S. 434. 1 1 . The overseers of a township are bound to maintain every poor person withiij their district, not having a settlement therein, who shall apply to them for rehef, until he can be removed to the place of his last settlement; and if in an attempt to remove him to the place of his last settlement, they leave him on the way in a town- ship not legally chargeable with him, he may be returned to them by an order of removal. Ihid. 535. 9 Barr, 46. 12. Desertion. Proceedings against one who deserts his wife, and leaves her a charge, may be had without the wife's consent. 2 S. Sf R. 363. 13. Justices of the peace have jurisdiction in case of desertion of a wife, though there are no children. Ibid. 14. After a conviction of a husband for desertion of his wife, &c., and an order 480 POOR LAWS. made by the court that the defendant pay a certain sum per week to the ^ardians of the poor, for the use of the wife, give security, &c., and stand committed until the judgment he compHed with, the order is not affected by the subsequent dis- charge of the defendant's person under the insolvent law, except as to payments then due ; and where, after such sentence and discharge, the former desertion con- tinuing, the court made a second order upon the defendant, to pay a weekly sum to the guardians of the poor, to give security, and to stand committed, &c., the Su- preme Court affirmed the first order, and reversed the second. 5 fVh. 82. III. Forms of Orders. Af COUNTY, ss. To the Overse-ers of the Poor of the district of , in the County of : WHEREAS, complaint hath been made unto us, two of the justices of the peace in and for the said county of , by of aforesaid, esquire, that a certain on the tenth day of tliis instant May, came to the complainant's house, m aforesaid, and there fell dangerously ill, and that the said is a poor and impotent person, and un- able to provide for herself, and hath not gained a settlement in the said district. These are, therefore, to authorize and require you to receive the said forthwith into your care, and make suitable provision for her until she can be removed to the place of her last legal settlement. Given under our hands and seals, at aforesaid, the 12th day of IVlay, A. D. 1844. E. V., Justice of the Peace, [seal.] G. H., Justice of the Peace, [seal.] M— COUNTY, ss. To the Overseers of the Poor of the district of , in the County of , greeting : WHEREAS, information hath been given unto the subscribers, two of the justices of the peace in and for the county aforesaid, by of the said township, farmer, that of the same township, labourer, was yesterday, being the 13th day of March instant, thrown from a horse and so much hurt that his life was despaired of, and that the said is so poor as to be unable to procure the necessary assistance. You are, tlierefore, hereby authorized and required to take charged of the said if you find his circumstances to be as represeYited, and furnish him such medical and other relief "as his distressed situation may call for, charging your expenses herein in your account against the said district. Given under our hands and seals, the 14th day of March, 1844. E. F., Justice of the Peace, [seal.] G. H., Justice of the Peace, [seal.] COPY OF A SUMMONS FOR A DELINQUENT OVERSEER. L COUNTY, ss. STJe ©ommonineiilti) ot SJennsrjlbsnia, To the constable of B., in the county of L., greeting : WHEREAS information hath been made before J. R. and B. Q.., esquires, two of-our justices of the peace in and for the county of L., by J. W., of the borough of L. in the said county, blacksmith, (one of the overseers of the poor of the said borough,) that J. D., of L. aforesaid, saddler, on the twenty-fifth day of March last past, at L. aforesaid, being duly appointed overseer of the poor of the said borough, did neglect or refuse to take upon him the said office, [or refuses to perform a certain duty which by law he was bound to perform,] contrary to the act of General Assembly in such case made and provided : You are therefore hereby commanded to summon the said J. D. to appear before our said jus- tices at the office of the said J. R., at L. aforesaid, on Friday the eleventh day of April instant, at ten of the clock in the forenoon of that day, then and there to answer to the said information. And be you then there. Hereof fail not. Witness Ine said J. R. and B, Q. at L. aforesaid, the fifth day of April, in the year of our Lord one thousand eight hundred and forty-four. , r. r i ■' J. R. [seal.] B. Q. [seal.] A FORM OF CONVICTION IN SUCH CASES. /, COUNTY, ss. BE it remembered that on the fifth day of April, in the year of our Lord one thousand eight hundred and forty-four, at the borough of L., in the county of L., J. W., of L. afore- said, blacksmith, (one of the overseers of the poor of the said borough,) cometh before us, J. R. and B. Q., esquires, two of the justices of the commonwealth of Pennsylvania, as- signed to keep the peace of the said commonwealth, in and for the county of L., and then and there giveth us to understand and be informed that J. D. of L. aforesaid, saddler, on the twenty-fifth day of March last past, at L. aforesaid, being duly appointed overseer of the PRINCIPAL AND AGENT. 481 poor of the said borough, did neglect or refuse to take upon him the said office, contrary to the act of General Assembly in such case made and provided, [or refused to perform certain duties which by law he was hound to perform.] And afterwards, upon the eleventh day of April, in the year aforesaid, at L. afbresaid, the said J. D., having been previously sum- moned in pursuance of our summons issued for that purpose to appear before us the said justices, upon the said eleventh day of April, at ten of the clock in the forenoon of that day, at the office of the said J. R. at L. aforesaid, to answer the matter of complaint contained in the said information, he the said J. D. appears before us the said justices, to answer and make defence to the matters contained in the said information, and having heard the same, the said J. D. is asked by us the said justices, if he can say any thing for himself why he should not be convicted of the premises above charged upon him in form aforesaid. — And because the said J. D. hath nothing to say, nor can say any thing in his own defence touch- ing and concerning the premises aforesaid, but doth freely and voluntarily acknowledge and confess all and singular the said premises to he true in manner and form, as the same are charged upon him in the said information ; and because all and singular the premises being heard and fully understood by us the said justices, it manifestly appears to us the said jus- tices that the said J. D. is guilty of the premises charged upon him by the said informa- tion : It is therefore considered and adjudged by us the said justices, that the said J. D., according to the form of the act of General Assembly aforesaid, be convicted, and he is ac- cordingly convicted of the offence charged upon him by the said information. And we do hereby adjudge that the said J. D. for the said offence hath forfeited the sum of twenty dollars, to be appropriated as the act of the General Assembly directs. In witness whereof, we, the said justices to this present record of conviction as aforesaid, have set our hands and seals at L. aforesaid, the eleventh day of April, in the year of oar Lord one thousand . . eight hundred and forty-four. .1. R. [seal.] B. Q. [seal.] I. The relatioa of principal and agent takes place, whenever one person author izes another to do acts or make engagements in his name. Foley on Agen. 1. 3. A hired agent is bound to possess such a degree of skill as would, in general, be adequate to the service ; a gratuitous agent is not bound to possess such skill, - but is only liable by proof of gross negligence, or of having omitted to use that skill which, from his situation, office, or profession, he cannot but be supposed to have. Ibid. 72. ;?. If a man promises as an agent, he is not personally bound. Addis. 140. 4. The acts of a servant bind his master only when done in the course of the busi- - ness committed to him, or within the scope of an authority specially delegated to him. 4 fV. 222. 5. A promissory note, signed by a clerk in a store, for his employer, does not bind * the latter, without proof of special authority. Ibid. 6. Whenever a person acts as agent /or the public, he is not personally liable for contracts made by him in that capacity. I Mass. T. R. 208. 7. Nor will it make any difTerence if the services, &c., were performed at the special instance and request of the person so acting as agent. Ibid. S. A public agent of government, contracting for the use of the government, is not, personcflli/, Eable, although the contract be under his seal. 1 tV. 343. 9. A pubHc agent, though known to be such, is personally Kable in his contract for things for the use of the government, unless he make it in his official capacity, - and the party contracted with appears to have looked to government alone for com- pensation. 3 Caines's R. 69. 10. An agent appointed to collect money, who buys a note of his principal, at a t discount, cannot retain the nominal amount of the note out of the money collected. . He can set off only the amount which he actually paid. 2 P. R. 525. II. Whenever confidence is reposed, the law forbids that it shall be abused I (7 W. 387.) It is a rule of law which does not admit of dispute, that an agent is • bound to keep his principal informed of aU material occurrences in the agency ; if he fail to do so, jt is negligence, and a palpable violation of duty, for which thefac-- tor is clearly liable to a suit. 4 R. 229. ^W. ^ S. 305. 2f 482 PRIVILEGE. 12. A party who wishes to avail himself of the acts of an agent, must, in order to charge the principal, prove the authority under which the agent acted. An agent specially employed to receive the amount of an account, or take a note for ft, has no Huthority to dispose of the note, when taken; he cannot depart from his authonty. 7 W. 524. ^ . 13. Declarations made by an agent, at the time of paying money, showing on whose account and behalf the money was paid, are admissible as part of the res gesta. 4 IVh. 130. 1 Greenl. Ev. § 113. 14. If an agent exceed his authority in making a contract, he thereby binds him- pelf individually, but his principal is not bound. 1 W. S,- S. 222. . , „ , 15. The acts of an agent or an attorney after the death of his principal, of which he.was ignorant, are binding upon the parties. 4: TV. Sf S. 282. 16. On the hiring of an agent for a year, the principal is liable to him for the wages £>f the year, if he dismiss the agent before its termination. 6 W. Sf S. 210. TI. Of tTie privileges of suitors and witnesses. I III. Of the privileges of foreign ministers. II. Of the privileges of freeholders. | IV. Of the privileges of other persons. I. Of Suitors and Witnesses. 1. Privilege is an exemption from some duty, burden, or attendance, to which ■certain persons are entitled, from a supposition of law that the stations they fiU, or the offices they are engaged in, are such as to require all their care, and that, there- fore, without this indulgence, it would be impracticable to execute such offices to that : advantage which the public good requires. Bae. Mr. 2. A party attending in court is privileged from the service of a summons, as well as from an arrest. 1 Binn. 77. 3. A suitor, who was served with a summons after the lapse of a day from the de- livery of the verdict, on his motion, was discharged from the action. 2 Y. 222. 4. There is no privilege from the service of a subpoena. 4 D. 341. 5. A witness attending before a magistrate, for the purpose of having his deposi- tion taken, under a rule of court, is privileged from arrest, eundo, morando, et rede- ■undo, [whilst going, remaining, and returning.] 9 S. ^ R. 147. 6. The privilege of a suitor does not hold when he has been surrendered by his bail in another case, and is in actual custody at the time of arrest. 3 F. 387. 7. The privilege of a witness from arrest does not extend throughout the term at which the cause was marked for trial, nor will it protect him while the witness is en- gaged in transacting private business, after he is discharged from the obligation of the subpoena. 4 D. 329. 8. A suitor in a court of one county, who comes into another county, to attend to the taking of a deposition in the pending suit, in pursuance of its rules, is privileged from the service of a summons in the latter county, although in consequence of cir- ■cumstances happening after his coming into the county, the deposition has not been taken. 1 M. 237. _ 9. A refusal to discharge a defendant on the ground of his having been arrested •while attending as a party or witness, is a taatter of discretion with the court below, the propriety of which cannot be reviewed in the Supreme Court. 5 Wh. 313. 10. Where a person is a suitor in one court, and, while so, is served with process issued by another, the general practice is, that the party must apply to the court, in which he is suitor, to be discharged from the process issued by the other. 2 M. 200. () Penn. L. J. 330. 3 £m. L. J. 134. 11. Either court may, however, discharge the party and give him the benefit of his mivilege, but the court from which the process issues will not exercise the pcJwer of dwcharging the party, except under special circumstances. Ibid. PRIVILEGE. 483 12. The protection given to suitors ahd Tiritnesses is now extended to evety case where the attendance is a duty, in conducting any proceedings of a judicial nature. 9 S. 4- R. 151. 13. The privilege from arrest is confined to parties in civil proceeedings, unless it appear, that the arrest on the criminal charge was a contrivance to get the defendant into custody on the civil suit. 6 Penn. L. J. 330. 10 Wend. 636. 1 Mol. Sf E. 378. II. Freeholders. 1. The privilege of fre.eholders to he sued hy summons, extends to actions of tres- pass vi et armis. 1 B. 310. 3. But if a freeholder unite in a joint and several bond or commit a joint trespass with one who is not a freeholder, he may be arrested upon a joint capias issued against both. 2 Binn. 135. 1 B. 305. 3. A judgment obtained before a justice of the peace is sufficient ground to de- feat the privilege of a freeholder. 1 B. 436. 4. The court will abate a capias which has been issued against a freeholder, al- though the value of his freehold be less than the amount of the plaintiff's demand, if no incumbrance exist on his land at the time the writ issued. 1 S. ^ E. 363. 5. If a defendant freeholder, who seeks to avail himself of the privilege arising from his freehold, neglects to suggest it, it would justify the issuing of an execution against him ; but on the payment of costs accrued on the execution, the magistrate should supersede it, and give the defendant the privilege secured by . law. 1 .Ash. 407. 6. A freeholder is an inhabitant in any part of this province, who hath resided therein for the space of two years, and has Jifti/ acres of land, or more, in fee-sim- ple, well seated, and twelve acres thereof, or more, well cleared or improved, or hath a dweUing-hoUse worth. J^'ty pounds current money of America, in some city or town- ship 'within this province, clear estate, or hath unimproved land to the value oijijly pounds like money. Pitrd. 53. Bunl. 77. 7. The second section of the act of 14th April, 1838, relating to the commence- ment of actions, &c., revived the act of 20th March, 1725, which exempted free- holders, in certain cases, from arrest. 1 Penn. L. J. 47. ' III. Foreign Ministers and Consuls. 1. An ambassador or foreign minister is not amenable to the laws of the nation to which he is sent. (1 JV. <^ M. 217.) The recognition by the President of a foreign minister is conclusive upon the judiciary. (4 Wash. C. C.R. 153.) A sec- retary of legation is entitled to all the immunities of a minister, and is privileged against any prosecution civil or criminal. 1 Wash. C. C. R. 332. 2. An attache to a foreign legation is a public minister within the statute of 1790. (1 Bald. 340.) A foreign minister cannot waive his privilege or immunities, and his submission or consent to an arrest is no justification. Ibid. 3. The charge d'affaires of a foreign government, whose official functions in that capacity ceased on the arrival of the minister' of his government, but who was de layed in this country by circumstances, was held not to be amenable to process in a civil suit. 4 B. 321. 4. A foreign consul is not privileged from prosecution for a misdemeanor, by vir- tue of his consular appointment. 3 B. 299, in note. 5. And it seems, that a consul general is not protected by the law of nations, from a prosecution and indictment for a rape. 5 SJ fy R. 545. 6. But the state courts have no jurisdiction in such case, the exclusive jurisdiction being vested in the courts of the United States. Ibid. IV. Other Persons. 1. A member of Assembly is privileged from arrest, summons, citation, or other civil process, during his attendance on the public business confided to him, (4 D. 107,) and it seems his suit cannot be forced to trial during the session of the legislature. Ibid. But this latter point is denied by GtEIjer, J., iti Wall. Jr. 189. 2. A member of a state convention is privileged from a summons or arrest dur- 484 PROCESS. ing the sitting of the convention, and for a reasonable period before and after the session. Ibid. 296. 3. An attorney at law is not privileged in Pennsylvania from arrest on a capias. 4. The claim of privilege must be made at a proper time ; after judgment obtained it is too late. 4 D. 107. 1. Blackstone considers process, in civil cases, as the means of compelling the 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 interme-- diate process, which issues, pending the first, upon some collateral or interlocutory matter; as to summon juries, witnesses, and the like. (Finch L. 436.) Mesne pro- cess is sometimes put in contradistinction to final process, or process of execution ; and then it signifies all such process as intervenes between the beginning and end of a suit. 2 Bl. Com. 19. 2. Though process issued by a justice may be altered by his direction, yet a general authority by him. to a constable, or any other person, to alter dates, or to fin up or alter process, is not only imprudent and indiscreet, but void. 10 Johns. 245. 3. Proceedings of a justice, in an action of debt, were set aside, because the sum- mons stated no day of appearance. A. 272. 4. The judgment of a justice was reversed ; first, because the summons was made returnable on the next day; second, because the summons was to answer a debt under 40s., and the judgment was for a greater sum. 1 D. 405. 5. A warrant by a justice, not directed to any particular person in office, is bad. Md. 376. 6. But a warrant directed to , constable, is good, if executed by the con- stable of the district. 6 Binn. 124. 7. In criminal cases, a justice is not bound to issue his warrant whenever it is applied for; he is to use a legal discretion, and determine, on a mature deliberation of a.11 the circumstances, whether a warrant should issue. 1 ¥. 74. 8. A justice who backs a warrant should be satisfied, by oath, that it is the hand- writing of the justice mentioned in the warrant, ^ct of April 16, 1827. 9. The warrant of a justice is not returnable at any particular time, but continues in force so bng as the justice shall live. Peake, JV. P. 234. 10. A warrant shall be issued (if a criminal warrant) on oath, &c., and name or describe the individual to be arrested ; otherwise it is unconstitutional, and the officer cannot justify an arrest under it. 3 Binn. 43. 11. The word "process" in the 11th sect, of the 5th article of the Constitution of Pennsylvania, which provides that the style of all process shall be The Common- weallh of Pennsylvania, was intended to refer to such writs only as should become necessary to be issued in the course of the exercise of that judicial power, which is established and provided for in the article of the Constitution, and forms exclusively the subject-matter of it. 3 P. R. 99. 12. The provision in the 11th sect, of the 5th article of the Constitution of Penn- iiylvania, that " all prosecutions shall be carried on in the name and by the authority oit" the Commonwealth of Pennsylvania," and conclude, " against the peace and dignity of the same," has never been considered as extending to prosecutions other than those carried on by indictment, found in. some of the courts referred to in the said 5th article, and where, anterior to the Eevolution, it was the rule and practice to conclude such prosecutions against the peace, &o., of the king. Ibid. 13. A justice of the peace may authorize any citizen to execute a warrant of arrest in a criminal case ; but no private person, and no other than the constable of the place where it is to be executed, can be compelled to execute it. 1 Ash. 183. PKOFANENESS. 4S5 ^tofaneneiss. 1. 1. Blasphemy, how punished. 2. Profane cursing or swearing. 3. Drunkenness. 4. Who shall have jurisdiction, and the mode of conviction. 5. Of the application of fines. II. Judicial decisions. I. Act op 1700. Purd. 960. Dunl 38, 1. Sect. I. Whosoever shall wilfully, premeditately, and despitefully blaspheme or speak loosely and profanely of Almighty G-od, Christ Jesus, the Holy Spirit, or the Scriptures of Truth, and is legally convicted thereof, shall forfeit and pay the sum of ten pounds, for the use of the poor of the county where such offence shall be com- mitted, or suffer three months' imprisonment, at hard labour, for the use of the poor. Jet of April 22, 1794. Purd. 960. Bunl. 199. 2. Sect. III. If any person of the age of sixteen years or upwards, shall profanely curse or swear by the name of Grod, Christ Jesus, or the Holy Grhost, every person sof offending, being thereof convicted, shall forfeit and pay the sum of sixty-seven cents for every such profane curse or oath j and in case he or she shall refuse or neglect to pay 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 of the proper county, not exceeding twenty-four hours, for every such offence of which such person shall be convicted; and whosoever, of the age of sixteen years or upwards, shall curse or swear by any other name or thing than as aforesaid, and shall be convicted thereof, shall forfeit and pay the sum of forty cents for every such curse or oath ; and in case such offender shall neglect or refuse to satisfy such forfeiture, or no goods or chattels can be found whereof to levy the same by distress, he or she shall be committed to the house of correction of the proper county, not exceeding twelve hours for every such offence. » 3. Sect. III. If any person shall intoxicate him or herself, by the excessive drink- ing 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 of the proper county, not exceeding twenty-four hours. 4. Sect. IV. The justices of the Supreme Court, severally, throughout this state, every president of the court of Common Pleas witlyn his district, every associate judge of the courts of Common Pleas, and every justice of the peace within his county, the mayor and aldermen of the city of Philadelphia, and each of themi, within the limits of said city, and each burgess of a town corporate, within his borough, are hereby empowered, and authorized, and required to proceed against and punish all persons offending against this act; and every person who shall profane the Lord's day, or who shall profanely curse or swear, or who shall in- toxicate him or herself, as mentioned in the next preceding section of this act; and for that purpose each of the said justices or magistrates, severally, may, and shall convict such offenders, 'Upon his own view and hearing, or shall issue, if need be, a warrant, summons, or capias, (according to the circumstances of the case,) to bring the body of the person accused as aforesaid, before him ; and the same justices and magistrates respectively, shall, in a summary way, inquire into ' the truth of the accusation, and upon the testimony of one or more credible wit- nesses, or the confession of the party, shall convict the person who shall be guilty as aforesaid, and thereupon shall proceed to pronounce the forfeiture incurred by the person so convicted, as herein-before directed ; and if the person so convicted, refuse or neglect to satisfy such forfeiture immediately, with costs, or produce goods and chattels whereon to levy the said forfeiture, together with' costs, then the said justices or magistrates shall commit the offender, without bail or main- prise to the house of correction of the county wherein the offence shall be com- 486 PROMISSORY NOTES. mitted, during such time as is herein-before directed, there to be fed upon bread and water only, and to be kept at hard labour; and if such commitment shall be in any county wherein no district house of correction hath been erected, then the offender shall be committed to the common jail of the county, to be therein fed and kept at hard labour, as aforesaid; and every such conviction may be in the following terms, viz.: "Be it remembered, that on the day of , in the year of A.B., of county, labourer, (or otherwise, as his or her rank, occupation, or calling ' may be,) is convicted before me, being one of the justices of the , (or one of the aldermen or burgesses of the city or borough of , in the county of ,) of swearing profane oaths, by the name of , (or otherwise, as the offence and case may be,) and I do adjudge him (or her) to forfeit for the same, the sum of cents. Given under my hand and seal, the day and year aforesaid :" Provided always, that every such prosecution shall be commenced within seventy-two hours after the offence shall have been committed. 3 S. fy R. 48. 5. Sect. XII. One moiety of the forfeitures in money, accruing and becoming due for any offence against this act, shall be paid to the overseers of the poor of the city, borough, or township, wherein the offence shall be committed, for the use of the poor Ihereof ; and the other moiety to the person or persons who shall prosecute and sue for the same ; and the inhabitants of such city, or other place, shall, notwithstanding, be admitted witnesses to testify against any person who shall be prosecuted for any offence by virtue of this act : Provided always, that no person shall be prosecuted or convicted for any offence against this act, unless such prosecution be commenced within thirty days after the offence has been committed. II. 1. Christianity is part of the law of Pennsylvania, and maliciously to revile it is an indictable offence. 11 S. S^ R. 394. 2. But fairly and conscientiously to promulgate religious opinions is not criminal Ibid. 3. The act of 1700, against blasphemy, is neither obsolete nor virtually repealed. Ibid. 4. In an indictmetit under that act, it is necessary that the words should be laid to have been spoken profanely. Ibid. 5. It seems also, that the indictment should state the very words spoken, and that it is not sufficient to state that the defendant spoke in substance, &c. Ibid. 6. The form of conviction, given by the 4th sect, of the ^ct of 22d April, 1794, for. the prevention of vice and immorality, is directory merely, and under that act the justice is not bound to send up the evidence given before him. 1 .Ash. 410. 7. In a summary conviction under the 2d sect, of the Act of 22d April, 1794, for profane swearing, the judgment must ascertain not only the amount of fine inflicted) but also the alternative duration of imprisonment; and if it does not, the prbceedings are void, and the defendant cannot be held in prison. 3 Penn. L. J. 59. 8. Several offences may be contained in one conviction. Ibid. 265. 9. A summary conviction must agree with, and cannot exceed the charge in the information : therefore, where the information charged the defendant with swe?ring twenty-five oaths, and the conviction and penalty was for twenty-nine ofvths, the proceedings were reversed on certiorari. Ibid. 265. ^vomi0!!siors ^ottu. I. Definition of a promissory note. II. Liability of the maker of a promissory note. III. Liability of the endorser. IV. Of the negotiability of a note. V. Of the consideration. VI. Protest and notice. VII. Of actions on promissory notes. I. 1. A Peomissory Note is defined to be a promise or engagement in writing, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person PROMISSORY NOTES. 487 • therein named, or his order, or to the- bearer. The person who makes the note is called the maker, and the person to whom it is payable the payee, and the person to whom he transfers the interest by endorsement the endorsee. Chit, on Sills, 324. 2. All the parties to a note are liable for the amount due, although only one satis- faction can be recovered ; and executions for costs may be issued in all the suits. 2 n. 115. il. Liability of the Maker. 1. An alteraiion in the date or amount of a proipissory note by the payee, in any material respect, avoids it, although in the hands of an innocent endorsee, for a valu- able consideration. 3 F. 391. 7 S. ^ B. 508. 2 PF. ^ S. 438. 2. If the endorser of a note sign a general release to the maker, before the note becomes due, of all actions, causes of action, and demands, which he then had, gr might in future have against the maker, by reason of any act, matter, cause, or thing, prior to the date of the releasejthe cannot, if he pays the note afterwards, maintain an action against the maker. 1 S. fy R. 398. 3. A bond from a third person is no discharge of the maker or endorser of a note- unless it be so agreed. (11 Ibid. 179.) Nor will the forbearance to sue the maker, nor delay to sue the endorser, discharge the latter, provided the time was not given , until after the note was protested. Ibid. 179. 4. If a note be drawn and endorsed for the accommodation of the endorser, and a- bond of indemnity be given by the endorser to the maker, the holder does not dis- charge the maker by giving time to the endorser after the day of payment, although at the time of giving the delay, the holder knows that it was an accommodation note. Q S.Sr R. 229. . • 5. A note given on Sunday is void, and there can be no recovery upon it. 6 W. 231. 6. The bona fide holder, for value, and without notice, of a negotiable note made to A. B. or bearer, is entitled to recover on it against the maker, free from all exist- ing equities between the original parties. 7 W. 328. III. Liability of the Endorser. 1. The endorser of a note is only a security that the maker shall pay the money ; if the holder is guilty of neglect, or receives part of the money from the maker, and gives time for the rest, the endorser is no longer responsible. 1 D. 252. 2. A demand of payment of the maker, or due diligence in endeavouring to make a demand, is necessary to charge the endorser, i S. ^ B. 480. 3. But if the maker has absconded, and is not to be found when the note falls due, a demand of payment is not necessary in order to charge the endorser. Jbid. 1 W. ^ S. 129. 4. It is not incumbent on the endorser to show the holder where the maker is to be found. Ibid. 5. Where the maker of a note has removed into another state or jurisdiction, subsequent to the making of the note, a personal demand on him is not necessary, it is sufficient if presented at his former residence. 9 Wh. 598. 6. The endorser of a note is not discharged by the holder taking a mortgage from the maker, as security for the debt. 7 S. ^ R. 219. 7. Where a promissory note is payable at a particular place, as a bank, and the holder is at the jbank until the usual hour for closing the same, on the day on which the note falls due, ready to receive payment, no further demand on the maker is necessary, in order to charge the endorser. 1 R. 335. 4 fV. ^ S. 505. 8. The holder of a promissory note accepted from the maker a check upon a bank, drawn by a firm composed of the maker and a third person, for the amount of the note, payable in six days, which was agreed to be in full satisfaction for the note, " in case the check was duly honoured -at its maturity :" Held that the acceptance of the check suspended the remedy of the holder against the maker, and discharged the endorser. 2 Wh. 253. 9. If one of two payees and endorsers of a note discounted for the accommoda tion of the iiKiker, die before the note falls du«, his representatives are not liable to th" holder for any part of the amount. 2 Wh. 344. 488 PROMISSORY NOTES. 10. The holder of a negotiable note by agreement with the maker, and for a valu- able consideration, extended the time for its payment, and afterwards endorsed the same to a third person, without giving notice of such agreement : Held, that he was liable to the endorsee, without demand of payment from the maker, protest, or notice. 10 W. 111. , ^ ^ 11. The taking of a new note of equal degree, either from the debtor or from a stranger at the instance of the debtor, is not an extinguishment of the first note, nor will it release any endorser of the same, unless the holder agreed to accept the new note in satisfaction, or to give time for the payment of the first note. 9 W. 173. 12. A delay to sue the maker of a note after it becomes due, does not discharge the endorser. 17 Johns. R. 176, IS. Ibid. 327. 13. The holder of a promissory note, in order to render the endorser liable, must demand payment of the note from the maker, or in his absence from his clerk or agent, on the last of the days of grace, and give due notice of the non-payment to the endorser. A demand on the maker before the ^ast day of grace must pass for nothing. 8 W. 401. 2 Wh. 377. Q W. 8f S. 179. 14. An endorsement in blank by the payee of a sealed bill Cnote) does not make him liable to the holder. IZS.SfR.ZW. 5 W^A. 325. 15. An endorsement, on a note, without a date, by one not a party to it, is pre- sumed to have been made at its date, and the endorser held liable as an original pro- missor, and not as a guarantor. 1 JoneSf 482. Ihid. 460. Act of April 11, 1848. Bunl. 1126. 16. Sect. III. Payment of all notes, checks, bills of exchange, or other instru- ments negotiable by the laws of this commonwealth, and becoming payable on Christmas day, or the first day of January, the fourth day of July, or any other day fixed upon by law, or by the proclamation of the governor of this commonwealth as a day of general thanksgiving, or for the general cessation of business in any year, shall be deemed to become due on the secular day next preceding the aforementioned days, respectively ; on which said secular days demand of pa5'ment may be marie, and in case of non-payment or dishonour of the same, protest may be made, and no- tice given in the same manner as if such notes, checks, bills of exchange, or other instruments fell due on the day of such demand ; and the rights and liabilities of all parties concerned therein, shall be the same as in other cases of like instruments le- gally proceeded with : Provided, that nothing herein contained, shall be so construed as to render void any demand, notice or protest made or given as heretofore, at the option of the holder, nor shall the same be so construed as to vary the rights or lia- bilities of the parties to any such instniments heretofore executed. Act of April 5, 1849. Dunl. 1156. 17. Sect. VII. From and after the passage of this act, in all cases where suit is brought in any of the courts of this commonwealth, upon or for the recovery of the amount due on any promissory note, post-note, note of hand, due-bill, bill of ex- change, draft, order, check, or other instrument of writing in the nature thereof, no plea shall be held to be available, and no defence shall be made or taken by the de- fendant or defendants for want of proper and timely demand of payment or accept- ance, or proper and timely protest for, and notice of non-acceptance or non-payment of the same, unless the respective places where such demand is to be made, and where such notice is to be served or given, or the names and residences, or places of business of the respective parties thereto, shall be legibly and distinctly set forth thereon. 18. Sect. VIII. When such places of demand and notice, or such names, resi- dences, or places of business are omitted to be set forth as aforesaid, demand of ac- ctptance, as well as protest for, and notice of non-acceptance may be made and given at any time before maturity of such instrument or instruments as require acceptance, and demand of payment, as well as protest for, and notice of non-payment of the same, at any time after maturity thereof, and before suit is brought thereon. 19. Sect. IX. In all such cases of omission as aforesaid, promissory notes, post- notes, notes of hand, due-bills, and such like instruments, shsdl be held to be payable and protestable at the place where they are dated, and if they contain no place of date, PEOMISSOEY NOTES. 489 then at the place where they are deposited or held for collection ; and bills of exchange, drafts, orders, checks, or other instruments or securities, in the nature thereof, shall be held to be acceptable, payable, and protestable, at the place where the same shall or may be addressed to the drawee or drawees. [These three sections are repealed by act of Sth ^pril, 1851, (Pamph. 398,) except as to instruments made between the 5th Spril, 1849, and the Sth April, 1851.] IV. The Negotiabilitt of a Note. 1. The negotiability of a note is not impaired by an assignment of it under sea endorsed, nor by a receipt endorsed of certain goods received on account. ■ 2 W. 222. 2. An action may be maintained in the name of the holder of a note, which is payable to bearer. 2 W. 134. Act of April 5, 1849. Dunl. 11 57. 3. Sect. XI. All bills of exchange, drafts, orders, checks, promissory notes, or other instruments in the form, nature, or similitude thereof, that shall or may here- after, be made or be drawn or endorsed to order within this commonwealth, upon any person or persons, body politic or corporate, copartnership, firm or institution of or in, or that shall be made payable in any other state, territory, countryj or place whatsoever, for any sura or sums of money, with the current rate of exchange in Philadelphia, or such other place within this commonwealth' where the same may bear date, or in current funds, or such like qualifications superadded, shall be held to be negotiable by endorsement, and recoverable by the endorsee or endorsees in his, her, or their own name or names, in the same manner, to all intents and purposes, as bills of exchange and promissory notes, formally drawn and ordinarily in use, and negotiable within this commonwealth, are now by law recoverable therein. V. Consideration. 1. The consideration of a promissory note may "be inquired into as between the original parties, and if there is no consideration for the promise, it cannot be enforced* by an action. 17 Johrts. B. 301. 3 P. R. 284. -' 2. When a promissory note is assigned for a valuable consideration, and in the course of business, the assignee cannot be aiTected by any transactions betvsreen the assignor and the parties to such note, to which the assignee is not privy, and evi- dence to that effect is not relevant. But such evidence is relevant if it shows that the assignee was a trustee, or had notice of the transactions, or did not receive the note in the usual course of business. 6 S. fy R. 537. 7 TV. 328. 3. As between the payer and payee of a negotiable note, either want or failure of consideration may be set up as a defence to an action upon it. So, also, as be- tween the payer and a holder claiming by endorsement or delivery made after the note becomes due. 7 IV, 130. 4. If the payer of a note stands by and sees it assigned to a third person with- out giving the assignee notice of an existing defence, he shall afterwards pay the amount of the note to the assignee, although the consideration thereof should have entirely failed, and whether his conduct proceeds from ignorance or design. 1 P. R. 476. 5. The act of 1797 was intended only to place notes, bearing date in the city or county of Philadelphia, on an equal footing with notes in other parts of the com- mercial world, but not to give the hold«r of a note the right to receive the whole that appears due on the face of it, under all circumstances. 1 S. ^ R. 180. 6. The consideration of a note payable "without defalcation," cannot be inquired into in an action by a bona fide holder against the maker, though the note be not dated in the city or county of Philadelphia, nor discounted by a bant,' nor deposited in a bank foe collection. 9 S.^ R. 193. 7. In an action by the holder against the endorser of a promissory note, it is competent for the defendant to prove that the note was put into' circulation bv the maker fraudulently and without his knowledge. In which case he may call "upon the plaintiff to show how he came by it, and what he gave for it. 5 Binn. 469. 8. The words " without defalcation," in a single biU or note under seal, do not preclude the obligee from showing a failure of consideration in an action by an assioDPfi. 2 P. P. 24.'5. 490 PROMISSORY NOTES. 9. If an endorsee takes a note heedlessly and under circumstances which ought to have excited the suspicions of a prudent and careful man, the maker or endorsei may be let into his defence : much more if there is ground to suspect a secret un- derstanding between an endorser and his endorsee, thai ihe latter should, be trustee for the former. 3 W. 25. 10. An advertisement in a newspaper by the maker of a note, cautioning the public against taking it, and stating that he had a legal and just defence, is not evir deuce to charge an endorsee with notice, although it appears that the latter was a subscriber to the paper, that it was duly sent to him, and that no complaint was made of its not being received. Ibid. 20. 11. The rule undoubtedly is, both here and in England, that where negotiable paper has been stolen or lost, or obtained by duiess, or procured or put in circula- tion by fraud, proof of these circumstances may be given against the holder, and on such proof being given, it is incumbent on him to show himself to be a holder bona fide, and for a v^uable consideration, otherwise he is considered as standing in no better situation than the former holder, in whose hands the instrument received the taint. Ibid. 26. 7 Barr, 476. 13. But it is necessary that express notice should be previously given to the plaintiff, that he will be called upon at the trial to show the consideration given by him for the note. Ibid. 27. 13. If a note be given for an entire consideration, part of which is legal and part illegal, the whole contract fails,' and there can be no recovery upon the note ; but if there be several considerations, each having its own value fixed by a separate contract, some of which are legal and some illegal, it fails in part, and is good as to the residue. 2 W. 8r S. 235. 14. The consideration of a note for goods sold may be proved by a third person, without the production of the books in which the goods were charged. Ibid. 438. 15. In an action by an endorser against the maker of a note, the plaintiff is not bound to show what consideration he gave for the note, although notice has been given him to do so, unless defendant has given evidence tending to show facts which ought to exonerate him, except as against a bona fide holder for value. 5 Wh. 338. 16. 'The endorsee, in a suit against the maker of a promissory note, cannot be called on to prove consideration until defendant has shown it was obtained or put into circulation by fraud or undue means, i TV, ^ S. 445. ^ct of April 5, 1849. Dunl. 1157. Sect.'X. Whenever any value or amount shall be received as a consideration in the sale, assignment, transfer, or negotiation, or in payment of any bill of exchange, draft, check, order, promissory note, or other instrument negotiable within this com- monwealth, by the holder thereof, from the endorsee or endorsees, or payer or payers of the same, and the signature or signatures of any person or persons represented to be parties thereto, whether.as drawer, acceptor, or endorser, shall have been forged thereon, and such value or amount by reason thereof, erroneously given or paid, such endorsee or endorsees, as well as such payer or payers, respectively shall be legally entitled to recover back from the person or persons previously holding or negotiating the same, the value or amount so as aforesaid given or paid by such endorsee or en- dorsees, or payer or payers respectively, to such person or persons, together with lawful interest thereon, from the time that demand shall have been made for re-pay- ment of the same. VI. Protest and Notice. 1. A protest for non-payment must appear under a notarial seal. 1 D. 193. 2. Notice of protest ought to be give in a reasonable time ; and by not giving it, the holder takes the loss upon himself. 1 D. 234, 270. 3. No precise form of words is necessary to be used in giving notice of dis- honour. It is, however, dbvious that it should import that the instrument in ques- tion has been dishonoured ; a mere demand of payment by the holder or his attorney, without any intimation that the acceptor or maker has not paid it, will not suffice. PROMISSORY NOTES. 491 And it has been laid down " that the purpose of giving notice is not merely that the endorser shall know that the note is not paid, for he is chargeable only in the second degree, but to render him liable you must show that the holder looked to him for payment, and give him notice that he did so ;" and that J;he notice must report that the holder considers the endorser liable, and expects payment from him. Chitty on Bills, 71. ■ 4. It is not necessary that actual notice should be given in every case ; but it will be sufficient, and considered constructive notice, if it be left at the house of the endorser, or sent by mail, even though the letter should miscarry. 5 S. ^ JR. 322. 3 7?. 355. 5. Notice left with the family of a seafaring man, during his absence at sea, is sufficient. 5 Binn. 542. 6. Demand and notice may be waived by the endorser. 8 S. ^ E. 438. 7. If the party die before the note becomes due, notice should be given to his executor or administrator, if he has been appointed and qualified himself to act, other- wise it may be left at the 4weUing-house of the deceased. (17 Johns. E. 25.) Verbal notice to the endorser of non-payment by the drawer, is sufficient. 1 E. 335. 8. A notice sent through the post-office to the maker of a note is not such a demand as the law requires, when his residence is supposed to be ascertained. 3 Wh. 116. 9. Where the notary was infomild that the maker resided in or near a post- town in an adjoining county, it was held, that a demand sent through the post-office vras not sufficient to charge the endorser. Ibid. 10. A. notice of protest sent by mail is sufficient to charge the endorser, but the fact of putting the letter into the postoffice must be positively proved, and without such proof it is error to submit it to the jury. 9 W, 273. 11 . A tender in gold, made by an acceptor of a bill, to its holder, after it has been handed to a notary for protest, though within the business hours of brokers, is too late to save protest, or notarial fees. 1 Jones, 456. VII. Of Actions on Promissory Notes. 1. An endorser on a promissory note cannot be sued on and before the fuU ex- piration of the last day of grace, although the note has been protested for non-pay- ment at the close of the usual bank hours, and before the suit was issued. 2 M. 353. 3. The last endorser of a negotiable note having possession of it, has a right of action against the maker, and any of the prior endorsers. 4 Wh. 489. 9 TF. 139. 3. A negotiable note, payable to the order of the plaintiff, need not be endorsed by him before suit brought. \ TV. fy S. 418. 4. An action cannot be maintained in the name of an endorser upon a promissory note payable to A . only, and not his order. 2 D. 249. 5. An action may be maintained in the name of the holder of a note which is payable to bearer, although it be transferred after it became due. 2 W. 134. 6. In an action upon a note for the payment of a certain sum in specific articles, and at a certain place, it is not necessary for the maintenance of plaintiff's action, that he should have made a demand of the articles, at the time and place ; but to defeat the plaintiff's action, the defendant must prove that he was ready at the time and place, and continued ready. On failure to make this proof, the plaintiff may recover the amount in money. 7 W. 380. 7. Where an instrument in the form of a promissory note for the payment of a certain sum of money to A. or bearer, is signed by three persons, and a seal affixed at the signature of one of them* a joint action cannot be maintained against the three ; and if the seal be affixed afterwards and in the absence of the other two, the instru- ment is rendered void as to the latter. 5 Wh. 563. 8. The last endorser of a negotiable note having possession of it, has a right ot action against the maker and any of the prior endorsers without a previous resort to the payee, for, whose accommbdation it had been discounted. 9 W, 96. 9. In an action by the holder against the endorser of a negotiable note, the maker is an incompetent witness, both on the ground of interest and general policy. 3 W. «/■ S. 557, 492 PROTHONOTART.— PURCHASERS At SHERIFFS' SALES. 1. A Prothonotary is a chief officer or clerk in a court of hw. Cowell. 2. An action does not lie by the prothonotary of a court to recover his fees in a cause wMch is still depending. 4 Binn. 167. 3. The judicial power retained by prothonotaries, under the provisions of the act of 1791, extends no further than to signing judgments, writs and process, and to taking bail. 1 P. E. 14. [Special authority is given to certain prothonotaries to administer oaths in certain specified cases. In no other cases have they such authority.] 4. The party for whom the services are done is responsible to the prothonotary for his fees, and the latter may sue for them hke other debts, either before a justice of the peace, or in the proper court when the amount exceeds 100 dollars. But he has no right to issue an execution for his fees. The fees are not chargeable to the attorney, unless he becomes security. 13 -S". ^- i?. 100. 5. I have always considered it to be the general understandir^, tha' the plaintiff is liable to the officers for their fees, in case they cannot be procured from the defend- ant. 4 mnn. 172. 16 S. ^ R. 156. • 6. The general practice, both before and since the revo'ution, has beer, for the pni- thonotary to receive immediate payment for original writs, writs of removal, subpoenas, searches by the parties, copies of papers* in the cause, and rules of court. But for other services, such as the entry of oyer and special imparlance, fiUng declarations, entries of pleas, and the like, the costs have been considered iiS abiding the event of , the action. Ibid. 7. A power of attorney to a prothonotary to disccntinue a suit cannot be executed by his clerk. 1 iZ. 341. 8. A prothonotary who wilfully neglects any duty which he is bound to perform, is liable, upon his official bond, to any one who may be thereby injured. Ibid. 249. 9. Where a judgment was obtained against a defendant, and the debt, interest and costs, were arranged by the parties thereto ; lield, that the officers, under the prac- tice which had so long prevailed, might proceed to collect their fees from the de- fendant, by suing out an execution against him, in the name of the plaintiff, notwith- standing the plaintifPs agreement to pay such fees in exoneration of ftie defendant 3 Barr, 423. J^titcftaseis at StirrCffs* Sk^Xtn* I. Act of Assembly. | III. Forms. II. Judicial Decisions. I I. Act op June 16, 1836. Purd. 454. Dunl. 829. Sect. CV. Whenever any lands or tenements shall be sold by virtue of any exe- cution as aforesaid, the purchaser of such estate may, after the acknowledgment of a deed therefor to him, by the sheriff, give notice to the defendant, as whose property tiie same shall have been sold, or to the persons in possession of such estate under him, by title, derived from him subsequently to the judgment under which the same were sold, and require him, or them, to surrender the possession thereof to him, within three months from the date of such notice. Sect. CVI. If the defendant, or any person in possession under him, as aforesaid, shall refuse, or neglect to comply with the notice and requisition of the purchaser, as aforesaid, such purchaser, or his heirs or assigns, may apply by petition, to any two justices of the peace, or aldermen of the city, town or county where such real estate may be, setting forth : 1 . That he purchased the premises at a sheriff's or coroner's sale. a. That the person in possession at the time of such application, is the defendant, PURCHASERS AT SHERIFFS' SALES. 493 as whose property such real estate was sold, or that he came into possession thereof under him. 3. That such person in possession had notice, as aforesaid, of such sale, and was? required to give up such estate, three months previously to such application. Sect. CVH. If the applications as aforesaid, shall be verified by the oath or affir- mation of the petitioner, or if probable cause to believe the facts therein set forth be otherwise shown, the said justices are hereby enjoined and required, forthwith to issue their warrant, in the nature of a summons, directed to the sheriff of the county, commanding him to summon a jury of twelve men of his bailiwick, to appear before the said justices, at a time and place to be specified, within four days, next after the issuing thereof, and also, to summon the defendant, or person in possession, as afore- said, at the same time to appear before them and the said jury, to show cause, if any lie has, why delivery of the possession of such lands or tenements, should not be forthwith given to the petitioner. Sect. CVIII. If at the time and place appointed for the hearing of the parties, the defendant, or person in possession, as aforesaid, shall fail to appear, the said justices shall require proo^ by oath or afiSlrmation, of the due service of such warrant upon liim, and of the manner of such service : Provided, that such service shall have been made three days before the return. Sect. CIX. If the defendant, or other person in possession under himj as afore- said, shall be duly summoned as aforesaid, or if he shall appear, the said justices and jury shall proceed to inquire — 1. Whether the petitioner, or those under whom he claims, has, or have, become the purchaser of such real estate, at a sheriflT's or coroner's sale, as aforesaid, and a sheriflTs or coroner's deed for the same, duly acknowledged and certified, shall be full and conclusive evidence of that fact, before such justices and jury. 2. Whether tlie person in possession of such real estate was the defendant in the execution under which such real estate was sold, or came into the possession thereof under him, as aforesaid. 3. Whether the person so in possession, has had three months' notice of such sale, previous to such application. Sect. CX. Upon the finding of the facts as aforesaid, the justices shall make a record thereof, and thereupon, they shall award the possession of such real estate to the petitioner. Sect. CXI. In case of a finding for the petitioner as aforesaid, the jury shall as- sess such damages as they shall think right, against such defendant, or person in possession, for the unjust detention of the premises, and thereupon, the said justices shall enter judgment for the damages assessed, and reasonable costs, and such judg- ment shall be final and conclusive to the parties. Sect. CXII. The said justices shall thereupon issue their warrant, directed to the sheriff, commanding him forthwith to deliver to the petitioner, his heirs or assigns, full possession of such lands or tenements, and to levy the costs taxed by the said - justices, and the damages assessed by the jury, as aforesaid. Sect. CXIII. No certiorari, which may be issued to remove such proceedings, shall be a supersedeas, or have any effect to prevent or delay the execution afore- said, or the delivery of the possession, agreeably thereto. Sect. CXIV. If the person in possession of the premises shall make oath or affir- mation before the justices — 1 . That he has not come into possession, and does not claim to hold the same under the defendant in the execution, but in his own right, or 2. That he has come into possession under title derived to him from the said de- fendant, before the judgment under which the execution and sale took place, and shall become bound in a recognisance, with gne or-iiiore suflicient sureties, in the manner hereinafter provided, the said justices shall forbear to give the judgment aforesaid. Sect. CXV. If the person in possession of the premises shall make oath or afiir- niation, before the justices, that he does not hold the same under ^aid defendant, but under some other person, whom he shall name, the said justices shall forthwith issue a summons to such person, requiring him to appear before them, at a pertain tmie therein named, not exceeding thirty days thence following, and if at such time, 494 PURCH VSEKS-mHERirF5'~Mi:ES. the said person shall appear, and make oath or affinnationj that he verily believes that he is legally entitled to the premises in dispute, and that he does not claim under the said defendant, but by a diflFerent title, or that he claims under the said defendant by title derived before the judgment aforesaid, and shall enter into a recog- nisance, with sureties, as aforesaid; in such case, also, the justices shall forbear to give judgment. j u i • Sect. CXVI. The oath or affirmation vi'hich shall be administered to such claim- ant, shall be in the following form, to wit : I do (swear or affirm) that I verily believe that I am legally entitled to hold tl e premises in dispute, against the petitioner^that I do not claim the same by, from, or under the defendant, as whose property the same were sold (as the case may be) — that I do not claim the same by, from, or under the defendant, as whose property the same were sold, by title derived to me subsequently to the rendition of the judg- ment under which the same were sold, but by a different title, &c. Sect. CXVII. The recognisance aforesaid, shall be taken in a sura fully sufficient to cover and secure, as well the value of the rents and mesne profits of such lands or tenements, which may have accrued, and which may be expected to accrue, be- fore the final decision of the said claim, as all costs and damages, with condition that he shall appear at the next court of Common Pleas, or District court, having juris- diction, and then and there plead to any declaration in ejectment, which may be filed against him, and thereupon proceed to trial, in due course of practice, and in case he shall fail therein, that he will deliver up the said premises to the purchaser, and to pay him the full value of the rents or mesne, profits of the premises, accrued from the time of the purchase. Sect. CXVIII. Jf such recognisance shall be forfeited, the justices aforesaid shall proceed to give judgment, and cause such real estate to be delivered up to the peti- tioner, in the manner hereinbefore enjoined and directed. Sect. CXIX. If any lands or tenements shall be sold upon execution, as aforesaid, which at the time of such sale, or afterwards, shall be held or possessed by a tenant, or lessee, or person holding, or claiming to hold the same under the defendant in such execution, the purchaser of such lands or tenements shall, upon receiving a deed for the same, as aforesaid, be deemed the landlord of such tenant, lessee, or other person, and shall have the like -remedies to recover any rents or sums accruing subsequently to the acknowledgment of a deed to him, as aforesaid, whether such accruing rent may have been paid in advance or not, if paid after the rendition of the judgment on which sale was made, as such defendant might have had, if no such sale had been made. Sect. CXX. If after notice shall be given of such sale, as aforesaid, such tenant, lessee, or other person, shall pay any rent or sum accruing subsequently to,the ac- knowledgment of such deed, [and] notice given him as aforesaid, to such defendant ; such tenant, lessee, or other person, so paying, shsJl nevertheless, be liable to pay the same to the purchaser. II. 1. A person in possession of land sold by virtue of an execution, may stay the proceedings of the justices, on making oath that he claims under the defendant in the execution, hy title derived before the judgment, and giving or tendering secu- rity. -S S.SfR. 95. 2. An affidavit by the tenant in possession, that he does not hold possession of the whoU of the premises, under the defendant in the execution, is not sufficient to stay proceedings. The justices are bound to disregard such affidavit, or call on the tenant to explain what part he held under such defendant or other persons. 5 S. . 10. A delivery of the receipt of the store-keeper, for the goods kept in his stort;, being documentary evidence of the title, is tantamount to a dehvery of the goods. 5 Johns. 335. 11. On a sale of personal property, if possession remains in the vendor, and he sells to a bonajide purchaser who is ignorant of the previous sale, the second pur- chaser will be entitled to hold the property as against the first. 17 S. ^ JR. 99. 13. An agreement to sell a chattel which is in an unfinished state, to be delivend at a future time when finished, is an executory contract upon which a present pro- ■ perty does not pass, though an action will li*; for a breach of the agreement. 4 II. 260. 4 W. 121. 5 Ibid. 201. 13. A transfer of personal property, unaccompanied by a corresponding change of possession, is void as against creditors. 6 W. 136. 14. Where no time is fixed for the delivery of goods sold, the law makes them deliverable in a reasonahle time ; if, when a demand is made, there is no objection made as to time, or it was not then made a question by ihs vendor, the contract will be deemed broken by a refusal. 1 Baldw. 331. 15. In order to make a transfer of personal property available against creditors, or a subsequent assignor, it must be accompanied by a change of po.ssession at the ■ time, or within a reasonable time thereafter. If it has been delayed an unreason- able time, it is not sufficient that the possession was changed before a levy made. 5 W. 483. 16. In order to vest a title in goods purchased, it is necessary that they should • have been separated from the bulk of the other goods, and possession should be de livered with as little delay as is consistent with the nature of the articles bought, otherwise the transaction is fraudulent as to creditors, and the goods may be taken in execution as the property of the vendor. 6 Ibid. 29. 17. To constitute a valid assignment of personal property against a judgment creditor, there must be a delivery too, accompanied and followed by a continuing possession in the assignee. 2 W. 4" S. 147. ji III. Warranty and Fraud in the Sale of Chattels. 1. In every sale of a chattel, as one's own property, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat Emptor Qet the purchaser beware] applies, and the party buys at his periL^ But if the seller has possession of the article, and he sells it as his own property, he is understood to wEirrant the title. (1 W. fy S. 513.) A fair price implies a warranty of title, and the purchaser may have a satisfaction from the seller if he sells the goods as his own and the title proves deficient. But with regai-d to the quality or goodness of the articles sold, the seller is not bound to answer, except under special circumstances, unless he expressly warranted the goods to be sound and good, or unless he hath made a fraudulent representation concerning them. i This distinction between the responsibility of the seller as to the title and as to the quality of goods sold, is well established in the English and American law. 2 Kenfs Com. 374. 3. It is well' settled that with regard to the quality of goods, the vendor is not answerable, unless he expressly warrant them, or there has been a fraudulent repre- sentation ; an affirmation of a quality known to the vendor to be false. 7 S. ^ H 483. 3. To constitute an express warranty, it is not necessary that the word " warrant" should be used ; but the words used must be tantamount, and not dubious or equi- vocal. Ibid. 4. An assertion by the vendor to the vendee at the time of selling a mare, that " he is siire she is perfectly safe, kind, and gentle in harness,'' does not amount to an express promise or warranty, so as to render the vendor liable in assumpsit, although if made with a knowledge of its falsehood it would be the su^ect of an action of deceit. Ibid. 510 SALE OP PERSONAL PROPERTY. 5. An advertisement of property for sale, which gives it a, higher character than it deserves, does not amount to a warranty as to the quality, if the purchaser relies upon his own examination. 3 W. C. C. R. 165. 6. If one sell a horse to another knowing a material defect, which in equity and good conscience he ought to disclose, but does not disclose it, and it be not known to the buyer, or such as a buyer of conmion prudence must be presumed to know, this is such a fraud as vitiates the contract, and the buyer may recover back the price. Mdia. 328. 7. If one sell an unsound horse knowingly, and conceals the circumstance from the purchaser, and receives a sound price, he is liable in damages to the vendee , otherv/ise if he were ignorant that the horse was unsound. 3 Y. 262. 8. But if one sell a horse, warranting him to be sound, he is answerable whether he knew the horse to be unsound or not. Ibid. 262. Lofft, 146. 2 C. Sf P. 540. 9. In all sales of goods, there is an implied warranty that the article corresponds in specie with the commodity sold, unless there are circumstances (of which the jury, under the direction of the court, are to judge) to show that the purchaser took upon himself the risk of determining not only the quality of the goods, but the kind he purchased. 3 iZ. 23. 7 Barr, 293. 10. Wherefore if the defendant sell, and the plaintiff purchase, an article as " blue paint," and it is so described in the bill of particulars, this amounts to a warranty that the article delivered shall be blue paint, and not a different article. Md. 11. A sample or description in a sale note, advertisement, bill of parcels, or in- voice, is equivalent to an express warranty that the goods are what they are de- scribed or represented to be by the vendor. 3 R. 37. 2 Sandf. Rep. 89. 12. In order to sustain an action on an implied warranty, in a contract for the sale of goods, it is not necessary that the plaintiff should, before bringing suit, tender or re-deliver the articles to the defendant. Ibid, 23. 13. The measure of damages in such cases is the difference between the value of the articles delivered and the commodity sold. Ibid. 14. Though the seller is answerable to the buyer that the article sold shall be in specie, the thing for which it was sold, yet if there be only a partial adulteration, which does not destroy the distinctive character of the thing, the buyer is bound by his bargain ; and in doubtful cases, there is perhaps no practical test but that of its bping merchantable under the denomination affixed to it by the seller. Ibid. 168. 15. No implied warranty arises from an unfounded aflfirmation of soundness in the sale of a chattel, but for a deceitful representation of it the remedy is by action ex delicto. 9 W. 58. 16. If the sale of a chattel be absolute, with a warranty of soundness, and there be no consent by the vendor to take it back, the vendee cannot rescind the contract, but is put to his action on the warranty, unless the vendor knew of its unsoundness, and the vendee gave him reasonable notice of it. 10 Ibid. 107. 17. To avoid a contract on the ground of fraud, there must be the concealment of something which the purchaser is bound to communicate, or some misrepresenta- tion on a material matter to the contract, which either does or is calculated to mis- lead or deceive him. 1 Baldw. 337. 18. A sale and transfer of personal property, made for the purpose of preventing a creditor from obtaining execution of his judgment, is mala fide, and void against such creditor. 2 Wh. 302. !9. And the party claiming against such creditor is bound to remove all doubt iif the fairness of the transaction, even if possession has accompanied the transfer. Ibid. 20. The sale of an unsound horse, without fraud or warranty, though known to be unsound by the seller, is no defence to an action for the purchase-money. 3 Penn. L. J. 399. 21. A sale of personal property, invests even a hon&fide purchaser with no more than the title the vendor had: the exceptions are — 1st, money, checks, notes, &c., termed currency^ which pass by delivery only ; 2d, where the true owner confers on the party selling to a bondjide vendee, the apparent right of property, or of disposal as agent. 2 ^m. L. J. 253. SCIRE FACIAS. 611 Btivt jFacias. 1. A SCIRE FACIAS, in our practice, is a writing usually founded on some matter of record, as a recognisance, judgment, or a mortgage, by act of Assembly, though not a record, requiring the person against whom it issues to show cause wRy the plain- tiff should not have advantage of such record, although in some respects considered as a new action, because the defendant may plead thereto, and because a release of all actions or executions is a discharge to it. 2 F. R. 265. 2. Yet, in general, it is a judicial writ, which, from its form, and the nature of the ■proceedings under it, must issue from the court [or justice] where the record re- mains. Q S.SrR- 574. 3. Where the object of the scire facias is to obtain execution on a judgment or re- cognisance, &c., it is called a writ of execution. 2 P. R. 265. 4. When issued eigainst bail, on a mortgage, or the like, it is, in fact, an original proceeding ; but when issued to revive a judgment, or upon the death, marriage, &c., of parties ; or on a judgment in debt or bond, or on a judgment quando, &c., against an executor, it is but a continuation of the original action. In some cases it is merely an interlocutory proceeding, and in the nature of process ; as in the case of a scire facias quare executionem non. Jbid. 285. 5. A justice may issue a scire facias, post annum et diem, [after the expiration of a year and day,] and such proceeding would be highly proper and convehient. 6. But such writ is hot so absolutely necessary as that the court will, on certio- rari, reverse the proceedings where it is omitted. 1 Ash. 21. 5 Barr, 115. FORM OF A SCIRE FACIAS, TO BE SERVED ON A DEFENDANT BEFORE ISSUING AN EXECU- TION, WHERE THE JUDGMENT HAS BEEN RENDERED A YEAR AND A DAY BEFORE ISSU- ING EXECUTION. CITY OF FHILADELPHM, ss. SJe ffimumontuealtl) o£ 3|)ennsulbiini Cr. I,. 51. 2. But a single en-or on the part of the female will not place her beyond the pro- tection of the act, if she has repented her error, and is walking in the path of virtue, and enjoying the esteem of her acquaintance, when she is led astray. Ibid. 3. A ferjiale of bad reputation at the time the defendant obtained connection witli STAaE-OOACHES. 515^ her, — whetier the reputation was acquired by crime, or imprudence only, — is not within the protection of the act. Ibid. 4. It must appear, to the satisfaction of the jury, that the seduction was accom- plished by means of a promise of marriage. A rule has been established in civil cases, which authorizes a jury to infer a promise of marriage, from open, long-con- tinued, particular, and exclusive attentions. Ibid. 1 Jones, 318. 1 Harris, 331. 5. Continued attentions to a female fOr several months, followed by an improper in- tercourse, is sufficient evidence to warrant the inference of seduction. 2 Wend. 459. 6. In an action for the seduction of a daughter, her reputation for chastity may be impeached by general reputation, but not by her reputation among a particular class of people. 2 Stew. 266. 7. A promise to marry, a request, and a refusal, may be proved by circumstances, and are entirely within the province of the jury to determine. 3 Gilman, 202. 8. A female who has been seduced, and, after the birth of a child, married and deserted by her seducer, is not a competent witness against him, on an indictment for seduction. 1 Jim. L. J. 551. 9. Such a marriage, although after seduction, and followed by immediate desertion by the husband, is a defence against an indictment for seduction, under the act of 1843. Ibid. But not to a subsequent action for damages by the father of the female seduced. 2 flam's, 282. 10. 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. Wh. C. L. 488. 1. The owner of a vessel is responsible in damages for any injury occasioned to another by the negligence or unskilful management of his ship, although she was at the time in charge of a public pilot of the port. 4 D. 206. 2. And the principle as to the assessment' of damages is this, af in other cases of a similar nature, that the compensation shonld be equivalent to the injury. 4 D. 206. 3. Not only the ship's husband, but all the real owners of a ship, are liable for work done to the ship after their interest in her was acquired. 1 D. 129. 4. A shipwright has a lien on the ship for repairs in port. 1 Peter's Ad. Rep. 236. 'WoKmen and material men, having a lien on a vessel, under the provisions of a state law, may enforce it by a suit in rem in thfe admiralty. 1 Gilp. 1. 5. 'W^orkmen and material men, having a lien on a vessel which has been taken in execution and sold under a judgment in fiivour of the' United States, are entitled to payment out of the fund in preference to the United States. Ibid. 6. The master of a ship arriving at Philadelphia from a foreign port, is not bound by the bill of lading to deliver the goods to the consignee personally. The liability of a ship-owner ceases when the goods are landed at the usual wharf. 1 R. 203. 7. To prove property in a vessel or cargo, other evidence than the re^stry, invoice, &c., may be given ; such as acts of ownership, and the like. 3 W. C. C. R. 209. 8. ' The landing of foreign convicts in this state, is made a penal offence by the act of 15th April, 1851. PampJi. 701- Stjifle^Coacftei^. I. 1. Drivers of stage-coaches, &c., not to leave their horses. .2. Penalty on drivers, &c., for obstructing or delaying travellers. 3. How the penalties may be recovered. 4. Punishment of stage-drivers, &c., for gross negligence. II. Judicial decisions. I. Act of March 6, 1820. Purd. 1094. Durd. 349. 1. Sect. I. If the driver of any stage, mail-coiieh, coachee, or carriage, shall leave the same with the horses attached IJiereto, without some smtable person to 516 STAGE-COACHES, attend to and take care of such horses, or securely fastening the same, such driver, aad the owner or owners, or any of them, of such stage, mail-coach, coachee, or carriage, shall for every such offence forfeit and pay a sum not less than ten, nor more than fifty dollars ; one moiety whereof shall go to the person informing, and the other moiety to the stock of the county where such offence shall have been com- mitted : Provided, that the party aggrieved shall have a right to appeal to the next court of Common Pleas of the county wherein the offence was committed. 2. Sect. II. If any wagoner, carter, drayman, or driver of any stage, mail-coach, coachee, or carriage, shall wilfully and vexatiously obstruct or delay any person or persons travelling on the public highways of this commonwealth, he shall, for every such offence, forfeit and pay the sum of twenty dollars ; one half whereof shall go to the person giving information, and the other moiety to the stock of the coimty where tlie offence shall have been committed. 3. Sect. III. The said penalties may be recovered before any alderman or justice of the peace, in the same manner as sums not above one hundred dollars are now by law recoverable ; and in any suit or action brought to recover the same, the ir.- former shall be a competent witness, leaving his credibility, as in other cases, to be judged of by the proper authority determining the same ; and no such suit or action shall be abated, nor a nonsuit thereon ordered, on account of the names of all the owners of any such stage, mail-coach, coachee, or carriage, not being embraced as defendants ; but it shall be lawful to bring and sustain any such suit against any one or more of the said owners : Provided, that no suit or action shall be brought against any person for a penalty incurred by a violation of the provisions of this act, after the expiration of thirty days from the commission of the offence. [By the first and second sections of the above act, penalties are imposed for certain of- fences ; the suit to be brought within thirty days from the commission of the offence. The in- former is made a competent witness in any suit, although he is entitled to half the penalty. By the first section, the owner, as well as the driver, of the carriage is subjected to suit: the second section only holds the driver answerable for the penally. Suit not to abate, nor non- suit to be ordered on account of the names of all the owners not being embraced as defend- ants. Penalties recoverable before a justice of the peace. The right of appeal is given under the first section, to tht court of Common Pleas. The summons or warrant should issue " in a plea of debt for a penalty."] Act of April \, \Sm. Purd. 945. Dunl. 70S. 4. Sect. I. If any person within this commonwealth shall become injured, eithei in person or property, through or by reason of the gross negligence or wilful mis- conduct of the driver of any public stage, mail-coach, coachee, carriage, or car, em- ployed in the conveyance of passengers, or through or by reason of the gross negli- gence or wilful misconduct of any engineer or conductor of any locomotive engine engaged in the transportation of passengers, or of goods, wares, merchandise, or pro- duce of any description, such driver, engineer or conductor, shall be deemed guilty of a misdemeanor, and on conviction thereof shall, for every such offence, be pun- ished by a fine not exceeding fifty doUars, and imprisonment in the jail of the county whereiri such offence shall have been committed, for any length of time not exceeding six months, at the discretion of the court : Provided, that the provisions of this act shall not interfere with the civil remedies against the proprietors, or others, to which the party injured may by law be now entitled. II. 1. A traveller may use the middle, or either side of a public road, at his plea- sure, and is not bound to turn aside for another travelling in the same direction, provided there be convenient room to pass on the one side or the other. 1 W. 360. 3. If there be not convenient room to pass, it is doubtless the duty of the other to afford it, on request made, by yielding him an equal share of the road, if that be ade- quate and practicable ; if not, the object must be deferred till the parties arrive at ground more favourable to its accomplishment. Should the leading traveller refuse to comply, he would be answerable for it, in due course of law. But the other has no right to effect the passage by a forcible collision. Ibid. 3. Evidence of a custom for the leading carriage to incline to the right, the other making the transit at the same time to the left, held not to control the general law in this case. Ibid. SUMMARY CONVICTIONS. 517 4. Coaches carrying the mail of the United States are protected by the act of Con- gress from being wilfully and wantonly obstructed or delayed, but in every other respect they are on a footing with all other carriages. Ihid. 5. A traveller on horseback meeting another horseman or a vehicle, is not required to turn in any particular way to avoid collision ; he must exercise due care under the circumstances. 24 Wend. 465. 6. It seemSf it is ordinarily the duty of pne on horseback to yield the travelled path to one in a vehicle. 2 Chip. 136. A CONVICTION is " a record of the summary proceedings upon any penal statute^ before one or more justices of the peace, or other persons duly authorized, in a case where the offender has been convicted and sentenced." Bosc. on Conv. 7. As this mode of jurisdiction has been introduced in derogation of the common •aw, and operates to the exclusion of trial by jury,, the superior courts of justice have rigidly confined its authority to the strict letter of the respective statutes by which it was established ; and in revising its proceedings, they require that rules similar to those adopted by the common law in criminal prosecutions,, and founded in natural justice, should appear to have been observed, unless where the statutes expressly dispense with the form of stating them. 1 Burr. 613. 4 Burr.22Sl. i Bay, 357. But though the courts are strict in forming their judgment upon convictions, they will not always be astute in finding objections to them. 1 Lord Raym. 581. 2 Term Rep. 18. A conviction cannot be good in part, and bad in part, but must be wholly quashed if there is any fault. Cowp. 728. 2 Sfra. 900. The proceedings usually consist of six parts. First, the information ; — secondly, the summons ; — thirdly, the appearance or non- appearance of the defendant •, — fourthly, (in case he does appear,) his defence or confession; fifthly, (unless he has confessed,) the evidence; — sixthly, the judgment Information. The information must always be stated at large. Where the statute directs the information to be on oatk, it should be so stated in the conviction. Some- times, where the offence is an invasion of private property, a complaint from the otimer, or at least some proof of his dissent, is deemed necessary, even though the statute does not expressly require it. 4 Burr. 2282. The information should contain : — First, the day when it was taken, that it may appear to have been given within the time limited by the statute. Secondly, the place where it was taken, that it may appear the justice was acting within the limits of his jurisdiction. Here it should seem that the name of the county must be in the body of the conviction, and that a reference to the county in the margin is not sufficient, as it would be in an order, for the courts are far stricter in cases of conviction, and it has always been deemed necessary in an indictment. Thirdly, the name of the informer, that, as most of the statutes give a part of the penalty to him, it may appear afterwards that the wit- ness is not the same person, it having been settled that the informer cannot be a wit- ness where he is entitled to any part of the penalty. Fourthly, the name and style of the justice or justices to whom it is given, that it may appear he or they have authority to take such information. (2 Salt 474. 1 Stra. 261, 443, 711.) Fythly, the name of the offender. , Sixthly, the time of committing the offence ought to be stated, for the same reason that renders the time of taking the information material. However, the particular day need not be mentioned, provided the days are mentioned "between which the fact is changed to have been committed ; and all that is necessary to be laid in point of time is, that the prosecution appear to have been made within the limitation of the particular statute. (1 Salk. 369, 1 Lord Raym. 581. 10 Mod. 248.) Seventhly, the place where the offence was committed must be inserted, that it may appear to be within the jurisdiction of the magis'rate before 518 SUMMARY CONVICTIONS. whom the information is laid. (2 Lord Raym. 1320.) Eighthly, the information must contain an exact description of the oiTence. The best general rule for describ- ing the offence is to pursue exactly the words of the statute. But the rule admits of many modifications and exceptions. 2 Burr. 679. 1 Term Rep. 222. 1 Lord. Raym. 581. Where a statute expresses more offences than one in the disjunctive, though in the same sentence, you may convict on either. 1 Stra. 496. In some cases you must state the offence and its circumstances more fully than the statute on which the conviction is founded describes it. Thus, what is strongly and necessarily implied in a statute, though not expressed in terms, should be ex- pressed in a conviction. (2 Burr. 679.) Also, the number and nature of things taken, destrqyed, damaged, or embezzled (as the case may be) should be expressed ; more especially wherever the statute directs any recompense to be given to the party injured, as when the conviction is upon a statute against the robbing of orchards, cut- ting of trees, «fec., the number of trees cut should be mentiqned. 2 Lord Raym. 900. 5 Coke, 34. 2 Stra. 900. Though exactness and precision is required in describing the offence ; yet where a conviction expresses a number of offences consisting of the same fact repeated, the words that charge the fact to be an offence need not be repeated as many times as the fact is alleged to have been committed. 1 Lord Raym. 583. Of the summons. The summons follows the information ; and since it cannot, from the reason of the thing, be prior in order of time ; so if the summons bear date on an earlier day than the information, it would vitiate the conviction. 2 Lord Raym. 1546. The party ought, in point of fact, to be summoned. In the case of the King v. Venables, " the court were unanimously of opinion that the party in those cases ought to he summoned in fact, and if the justices proceeded against a person with- out summoning him, it would be a misdemeanor in them, for which an information would lie against them." 1 Stra. 630. 1 West. Leg.Obs. 304. T. U. P. Charlt. 235. Of the appearance or non-appearance of defendant. It must be stated whether the defendant appeared or not, for only in the case of his not appearing is the summons material ; for it is settled that the appearance cures every defect of summons. 1 Salk. 383. 3 Burr. 1785. Parker, Chief Justice, deUvered the resolution of the court. " We are all of opi- nion the offender may be convicted without appearing. The statute is silent as to the method of proceeding; and the law of England, it is true, in point of material justice, always requires the party charged with any offence to be heard before he be condemned in judgment ; but that rule must have this exception, unless it is through his own default ; were it otherwise, every criminal might avoid conviction. The law being so, the magistrate is bound to give some opportunity to the party to appear, and if upon such notice he neither comes nor sends a sufficient excuse, the magis- trate may proceed to judgment. If this was not to be allowed, the consequence would be that the offender would escape unpunished because he would never ajjpoar purposely to be convicted, and that would be to make the execution of the law de- pend on the will of the offender." 1 Stra. 44. Of the defence or confession. If the defendant confesses the charge, the justice may convict without going into any evidence against him ; and it has been deter- mined he may do so, even where the statute says nothing of confession, but only di- rects him to convict by the oath of a witness or witnesses. But the confession must be of such facts as fully constitute an offence ; otherwise it will not supply any de- fect of evidence. 1 Burr. 609. If the defendant denies the fact charged upon him, or pleads not guilty, the next thing to be stated, is The evidence. It should contain, as well as the information, the day and place when it was taken, the name of the offender, and the time when the offence was committed, subject to the quEdification before stated, viz. : that it may be sufficient to fix it between such and such a day. 1 Salk. 378. 1 Ld. Raym. 581. It must also contain, first, the name of the witness, that he may appear to be a dif- ferent person from the informer, as the statutes generally give the latter a part of the penalty, (2 Ld. Raym, 1545;) secondly, the evidence must be stated to have been SUMMARY CONVICTIONS. 51» ■given' in the presence of the defendant, that it may appear he has had the benefit of a cross-examination. 2 Stra. 1340. 3 Burr. 1786. 3 Term R. 18. Tlie court will presume the witness to have been examined in the defendant's? presence, unless tne contrary appear. 3 Burr. 1786. 3 Term R. 18. , Evenif itshaD appear, on the conviction, that the evidence was not given io the defendant's presence, yet if he confess the charge, that irregularity is cured. 1 Term R. 330. A third rule with regard to the evidence, is, that it must be of a fact prior to, oi existing at, the time of the information, and not of a fact subsequent to it. 1 Ld. Raym. 509. A fourth rule is, that the fact must be proved to have been committed in the place where it was laid, or at least within some place within the jurisdictioij of the magis- trate convicting. 1 Term R. 341. The fifth and last rule respecting the evidence, is, that it shall be set out at large, and (as a necessary consequence) contain a full and accurate statement of the facts that constitute the ofience. 1 Bay, 357. 1 West. Leg. Obs. 305. In setting forth the act or acts of the defendant that constitute the ofience, the evi- dence should, in general, be more particular than the information. In some instances, the offence can only be described generally in the information, and yet consists either of a number of distinct acts, which, in the aggregate, constitute the ofience, and must, therefore, be set forth in the evidence, or of some act that, from its nature, must have been, in point of fact, particularly set forth by the witness, and, therefore, ought to be so by the justice. 1 Burr. 609. 3 Term R. 18. Of the judgment or adjudication. The judgment is a necessary part of every conviction, and should contain, first, an adjudication that the defendant is convicted, and, secondly, an adjudication of the forfeiture or penalty. 1 West. Leg. Obs. 303. As to the first, the general way of expressing it is to say, "that the defendant is convicted of the said offence against the form of the statute." Skin. 563. -On the other haAd, when more offences than one are charged in the information, (as where a man was charged, on one of the lottery acts, with dealing in shares of lottery tickets, and also with registering tickets without a license,) it is not sufficient to say he is " convicted of the said offence," but if (which the court seemed to doubt) both offences might have been included in one conviction, he should have been con- victed of both. lTermR.^9. The second and last branch of the judgment is a declaration of the forfeiture or penalty incurred, and a distribution of the sum forfeited, in case the statute so directs. This declaration is held to be a necessary part of every conviction. 1 Salk. 378. 3 Stra. 858. 3 Burr. 1163. i As to the distribution of the forfeiture, it should seem there need not be any stated by the justice, where the statute expressly gives it in certain proportions. 1 Scilk. 383. But where justices are required, by a penal statute, to distribute the penalty, on conviction, amongst certain persons, according to their discretion, an adjudication that the forfeiture be disposed of*" as the law directs," is bad, foi in such cases the justice or justices should adjudge what the several proportions shalHie. 3 TermR. 96. 1 . A conviction, by the mayor of Philadelphia, under a city ordinance against huckstering, which does not state where the Offence was committed, is bad. 4 Ball. 266. 3 Y. 475. 3. Where a return to a certiorari stated that the defendant was summoned to an- swer, &c., " for placing goods on the footway of the street, and in his porch," and the judgment was that the plaintiff recover of the defendant, without stating on which part of the charge judgment was given, the return was held bad. 1 Y. 471. 3. Where a form of sununary conviction is peremptorily prescribed, it must be ex- actly followed ; but if the provision is merely directory, and the conviction contains every thing required by the form given, it will not be vitiated by unnecessarily stating more than is required. 1 Ash. 410. 4. Where no statutory form of conviction is given, and the proceedings are ac- cording to the course of the common law, every positive ingredient must be repeated iu proof, and is not to be taken by reference merely to the charge. Ibid. it. The form of conviction, given by the 4th section of the act of 32d April, 1794, 520 SUMMONS FOR DEBT, &c. for the prevention of vice and immorality, is directory merely, and, under that act, the justice is not bound to send up the evidence given before him. Jbid. 6. If the justice does send up the evidence, the court will not look into it, to ascer- tain if the conviction is warranted by it. Jbid, 7. When an act of Assembly, creating an offence, provides that the person so of- fending, on conviction thereof, before a justice of the county, shaU pay a fine of five dollars for every such offence, to be recovered as debts of like amount are recovera- ble, by any person who may sue for the same, the offender need not be convicted by indictment or by summary process, before the justice, but simply in an action of debt, by a judgment for the penalty, if proved guilty of the offence. 10 W. 382. 8. In a summary conviction, under the 2d section of the act of 22d April, 1794, for profane swearing, the judgment must ascertain not only the amount of fine in- flicted, but also the alternative duration of imprisonment ; and if it does not, the pro- ceedings are void, and the defendant cannot be held in prison. 3 Penn. L. J. 59. 9. A summary conviction must agree with, and cannot exceed the charge in iKe information. Several offences may be contained in one conviction. Ihid,. 265. A Form of General Record of Conviction. BUCKS COUNTY, ss. BE IT REMEMBERED, that on the 26th day of April, A. D. 1844, at the township of Bristol, in the county of Bucks aforesaid, A. B., of the said township, farmer, cometh before J. R., one of the justices of the peace of the Commonwealth of Pennsylvania, in and for the said county, and on his oath or affirmation, [if an oath or affirmation is required by the act upon which the conviction is founded,] informs me, the said justice, that E. F., of the town- ship of Falls, in the said county, on the 30th day of April last past, at the township of Bristgl aforesaid, in the said county, did [here set forth the fact in the words of the act of Assembly, as near as may be] contrary to the form of the act of Assembly in that case made and pro- vided. And afterwards, upon the 3d day of May, in the year aforesaid, at Bristol, in the county of Bucks aforesaid, the said E. F. having been previously summoned to appear before me, the said justice, upon the said 3d day of May, in the year aforesaid, at 10 of the clock in the forenoon of that day, at my office, in Bristol, to answer the matter of complaint con- tained in the said information, he, the said E. F., appears before me, the said justice, to answer ; whereupon I, the said J. R., proceed to examine into the truth of the said complaint, contained in the said information, in the presence and hearing as well of the said A. B. as of the said E. F. ; and thereupon, on the day and year last mentioned, at the township of Bristol aforesaid, G. H. comes before me to prove the charge contained in the said information against the said E. F., and is now by me, the said justice, sworn to speak the truth, the whole truth, and nothing but the truth, of and upon the matters contained in the said information ; and the said G. H., being so sworn, does on his oath say and depose, in the presence and hearing of the said E. F., that thfe said E. F., on the 20th day of April last past, at the township of Bris- tol, in the said county, did [here again set forth the fact, or so much thereof as is sufficient to convict the offender.] And the said E. F. does not produce any evidence to contradict the proof aforesaid. Wherefore, it appears to me, the said justice, that the said E. F. is guilty of the premises charged upon him by the said information. It is, therefore, adjudged by me, the said justice, that the said E. F., according to the form of the act of General Assem- bly aforesaid,, be convicted, and he is accordingly convicted, of the offence charged upon hini by the said information. And 1 do hereby adjudge that the said E. F., for the said of- fence, hath forfeited the sum of ten dollars, lawful money of the United States, to be dis- tributed as the act of General Assembly aforesaid doth direct. In witness whereof, I, the said justice, to this present record of conviction, have set my hand and seal, at Bristol township, in the said county, the 2d day of May, A. D. 1844. J. R., justice of the peace, [seal.] Summons for Belit, $rc. I. When a summons may issue. n. How the justice should issue the sum- mons. III. How to serve and make return of the service of a summons, &c. IV. When an attachment may issue against a defaulting witness. V. Summonses in debt or demand, in tro- ver and conversion, and in damages. I. Of issuing a Summons, On complaint made in relation to any demand within the jurisdiction of the jus- lice, he may issue process. Having ascertained that the complaint is cognisable SUMMONS FOR DEBT, &c. 621 before him, the next inquiry is as to the residence of the defendant. If that shall be found to be within the district for which the magistrate shall have been commis- sioned, then let the process be filled up, and issue. Although a defendant may not reside, yet if he he found, within the jurisdiction of the magistrate, and the process be legaUy served and returned, it is the duty of the magistrate to act upon it, in the same manner, and the proceedings shall be equally vahd, as if the defendant was a resiclent of the district in which the justice resides. II. Of filling up the Sdmmons. If the suit be brought for debt, by one individual against another, the summons should be made to read " summon A. B. to answer C. D." If brought by partners in trade, against partners in trade, it should read, " sum- mon E. F. and G. H., trading under the firm of F. & H., to answer J. J. and L. K., trading under the firm of J. & K." If either of the firms shall have been dissolved, the summons may read " lately trading, &c." If brought by executors, against an individual, it may read, " summon M. N. to answer O, P. and Q,. R., executors of the last will and testament of S. F., deceased." If the suit be brought by administrators, the summons should be filled up in a simi- lar manner. If the suit be brought by an individual, against husband and wife, the debt having been contracted by the wife before her marriage, the summons should read " sum- mon U. V. and W. V., his wife, late W. X., to answer Y. Z." Summonses in trover, or in trespass, &c., may be filled up in the same way as those for debt. III. Of the Service of the Summons, &c., &c. The remarks about to be made in relation to this process and its seirvice, apply , with equal force to every description of summons, scire facias, and subpcenas. The mode of service, in all these cases, is the same. " The service," says the law of March 20th, 1810, sect. 2, " on the defendant, shall be by [the constable] producing the original summons to, and informing him [the person to be summoned] of the contents thereof;" that is, by permitting the defendant to read it ; by reading it to him ; or, to use the words of the law, " by informing him of the contents thereof;" by whom he is sued ; and when, where, and before whom, he is to appear. If the constable shall dehver to the defendant a copy of the summons, without reading, or saying any thing about its contents, that will be good service. When called upon to make a return of the summons so served, to the justice, the constable should write on the back of it, " served on the defendant by producing to him the original sum- mons, and informing him of the contents thereof;" the constable subscribing his name, and the date of the service, on the back of the summons. This is one way of serving a summons ; but lest the constable might not have an opportunity of seeing the defendant, the law provides that it shall be good service of the summons for the constable to leave " a copy of it at his [the defendant's] dwell- ing-house, in the presence of one or more of his family, or neighbours, at least four days before the time of hearing" at the office of the justice. The constable must attend to the following particulars : He must make an exact copy of the process. He will be the more certain to do this, by bearing in mind that on its return he is to swear [or, if conscientiously scru- pulous of taking an oath, to affirm] to the correctness of the copy. He must be particular where he leaves the copy. It must be left " at the dwell- in^-house." It will not do to leave it at the defendant's store, or at his counting- house, or work-shop, or mill, or at any other place than his " dweUing-house." There, the law directs it to be served, and there our courts have ruled it shall be served. The summons must be delivered to a constable, to be served by him. He has no right to depute another to perform this duty. He may, at the request and risk of ihc plaintifi*, give, on the back of a warrant, a special deputation to another person to serve it, because this authority is vested in him by the act of Assembly. This is believed to be the only civil process on which a constable is authorized to give a special deputation. 522 SUMMONS FOR DEBT, &c. It must be left at the dwelling-house of the defendant, in the presence of " one or more of his family or neighbours." The law does not expect from the constable to inquire whether the person who opens the door of the dwelling-house, or to whom he delivers the copy, is a relation, or is in the employ of the defendant. If he or she shall appear to reside in or about the house, that person will be presumed to hn one of his family, or one of his neighbours. It must be left at the dwelling-house, not at the store, mill, or work-shop, of the defendant, " at least /our days before the time of hearing" at the olfice of the justice. Having attended to these simple but indispensable particulars, in the service, the constable must attend to the return which he is to make in writing to the justice, on the back of each of the processes he shall have been intrusted to serve. It may be as follows : " Served on the defendant, by leaving a copy of the within process at his dwelling-house, in the presence of one of his family," [or one of his neighbours,] as the case may be. Signed, D. C, Constable, July 4, 1844. When there are the names of more than one person in the process, who are to be summoned, it is the duty of the constable to serve aU the persons named, if he can, and to endorse the result of his inquiries on the summons or subpoena. As thus : A summons is issued against A. B., C. D., and E. F., trading under the firm of B., D., & F. Each of these persons should be named in the return on the back of the summons, thus : " Served on A. B., by producing to him the original summons, and informing him of the contents thereof; qn C. D., by leaving a copy of the within writ at his dwelling-house, in the presence of one of his family ; the other defendant, E. F., not found. G. H., Constable, July 4, 1844." The truth of this return being verified by the oath or affirmation of the constable, the process may be filed until the appearance of one or both of the parties at the time appointed for the hearing. IV. The service of a subpcena, if made and attested as above laid down, shall be regarded eis sufficient for all purposes to the parties who may have issued it, save only that no attachment shall issue against the defaulting witness, until it shall have been duly proved that the subpcena was personally served on him. This being done, and an application made, the justice may issue an attachment to compel the attendance of the witness forthwith, or at another time to which the case may be adjourned. The attachment may issue according to the form given under the head " attachment," for a witness. V. Copy of a Summons in Debt or Demand. CITY OF PHILADELPHIA, ss. Etie ffiommnniDealti) of JPennssltenfa, To the Constable of Walnut Ward, or to the next Constable of the said city, most conve- nient to the defendant, greeting: YOU are hereby commanded to summon Timothy Holdfast to be and appear on the third day of December, 1844, at 10 o'clock in the forenoon, before John Binns, alderman in and for Walnut Ward, in the said city, to answer Joseph Graspall, in a plea of debt or demand, " arising from contract, either express or implied ," not exceeding one hundred dollars. Wit- ness our said alderman, at Philadelphia, who hath hereunto subscribed his name, and affixed his seal, the 27th day of November, in the year of our Lord one thousand eight hundred and forty-four. John Binns, Alderman. [seal.] The alderman's office is No. 36, S. Sixth street. SUMMONS IN TROVER AND CONVERSION. CITY OF PHILADELPHIA, ss. EljD CtoinmoniDealtS a( SPeitn^ltanfa, To the Constable of Walnut Ward, or to the next Constable of the said city, most conve- nient to the defendant, greeting: YOU are hereby commanded to summon James Find to be and appear on the third day of December, 1844, at 12 o'clock at noon, before John Binns, alderman in and for Walnut Ward, in the said city, to answer John Lost, in a plea of damages in trover and conversion. not exceeding one hundred dollars. Witness our said alderman, at Philadelphia, who hath hereunto subscribed his name,' and affixed his seal, the 27th day of November, in the yeai of our Lord one thousand eight hundred and forty-four. John Binns, Alderman. [seal.] The alderman's office is No. 36, S. Sixth street. SUNDAY. 523 SUMMONS IN TRESPASS FOR DAMAGES. CJTY OF PHILADELPHIA, as. ZTjK (Xmnmontacnltl) o£ J^eniurslbania, To the Constable of Walnut Wafd, or lo the next Constable of the said city, most conve- nient to the defendant, greeting : YOU are hereby commanded to summon JMark Force to be and appear on the sixth day of December, 1844, at 9 o'clock in the forenoon, before John Binns, alderman in and for Wal- nut Ward, in the said city, to answer Peter Resist, of a plea of trespass, broueht for the reco- very of damages, for injury done or committed by the defendant, on the real or personal estate of the plaintiff, not exceeding one hundred dollars. Witness our said alderman, at Philadel- phia, who hath hereunto sRt his hfind and seal, the first day of December, in the year of our Lord one thousand eight hundred and forty-four. Johm BiNNS, Alderman. [seal.] The alderman's office is No. 36, S. Sixth street. Sl'MMONS FOR A PENALTY. CTTY OF PHUJtnLLPim, ss. EJc fflommon'iBealt)) of $)enn»sH)anfa, To ihe Constable of Walnut Ward, or to the next Constable of the said city, most conve- nient to the defendant, greeting: YOU are hereby commanded to summon Thomas Rude to be and, appear on the sixth day of December, 1844, at 12 o'clock at noon, before John Uinns, an alderman in and for Wal- nut Ward, in the said city, to answer Jonas Trusty in a plea of debt for a penalty, not ex- ceeding one hundred dollars. Witness our said alderman, at Philadelphia, who hath here- unto subscribed his name, and affixed his seal, the first day of December, in the year of our L->rd one thousand eight hundred and forty-four. John Disss, Alderman. [seal.] The alderman's office is No. 36, S. Sixth street. Sttn5fafi. I. No person shall he arrested on Sunday but for felony, treason, or breach of the peace. II. Drinking in ale-houses, &c., forbidden, ;ind a penalty on the keeper. III. Worldly employment prohibited. IV. Judicial authorities and decisions. V. Of contracts made on Sunday. VI. Breach of the Sabbath. I. Act of 1705. Purd. 1080. Dunl 41. Sect. IV. No person or persons upon the first day of the week shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judg- ment or decree, except in cases of treason, felony, or breach of the peace ; but the serving of any such writ, precept, warrant, order, judgment, or decree shall be, void to all intents and purposes whatsoever ; and the person or persons so serving or executing the same, shall be as liable to the suit of the party aggrieved, and tq answer damages to him for doing thereof, as if he or they had done the same without any writ, precept, warrant, order, judgment, or decree at all. II. Sect. V. All j^ersons . who are found drinking and tippling in ale-houses, taverns, or other public house or place on the first day of the week, commonly called Sunday, or any part thereof, shall, for every offence, forfeit and pay one shilling and sixpence to any constable that, shall demand the same, to the use of the poor ; and all constables are hereby empowered and, by virtue of their ofEcfe, required to "search public houses and' places suspected to entertain such tipplers, and them, when found, .quietly to disperse ; but in case of refusal, to bring the persons so refusing before the next justice of tbe peace,- who may commit such offendiers to the stocks, or bind them to their good behaviour, as to him shall seem requisite. And the keepers of such ale-houses, taverns, or other public house or place, as shall countenance or tolerate any such practices, being convicted thereof by the view of' a single raagistrate, his own confession, or the proof of one or more credible witnesses, 524 SUNDAY. shall, for every offence, forfeit and pay ten shillings, to be recovered as and for the uses abovesaid. III. Act of April 22, 1794. Purd. 1081. Dunl. 199. Sect. I. If any person shall do or perform any worldly employment or business ■whatsoever on the Lord's day, commonly called Sunday, works of necessity and charity only excepted, or shall use or practise any unlawful game, hunting, shooting, sport or diversion whatsoever, on the same day, and be convicted thereof, every such person, so offending, shall, for every such offence, forfeit and pay five dollars, to be levied by distress ; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the same by distress, he or she shall suffer six days' imprisonment in the house of correction of the proper county : Prmided always, that nothing herein contained shall be construed to pro- hibit the dressing of victuals in private families, bake-houses, lodging-houses, inns and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers or persons removing with their families on the Lord's day, com- monly called Sunday, nor to the delivery of milk or the necessaries of life before nine o'clock in the forenoon, nor after five in the afternoon of the same day. [5 S. 8f R. 302. 3 S. Sf R. 48. For the form of conviction, see " Profaneness."^ By act of 15th May, 1850, (Pamph. 773,) the penalty inflicted by this section is to be paid into the treasury of the commonwealth for the use of the sinking fund. Act of March 25, 1805. Purd. 1081. , Sect. II. So much of the act passed the 22d day of April, 1794, (preceding act,) as relates to the sale of the necessaries of life on the first day of the week, commonly called Sunday, so far as it respects the city of Philadelphia, the district of Southwark, and the incorporated part of the Northern Liberties, is herely repealed. Act of April 22, 1829. Purd. 1081. Sect. I. It shall be lawftd for the commissioners of the Kensington district of the Northern Liberties to make, ordain, and pass such ordinance or ordinances as they may judge proper, for the better regulation of the markets holden in the said district, on the first day of the week, commonly called Sunday. Sect. II. So much of the act passed, the 22d day of April, 1794, as relates to the sale of the necessaries of life on the first day of the week, commonly called Sunday, so far as it respects the said Kensington district of the Northern Liberties, is hereby repealed. IV. 1 . Profanation of the Lord's day, is an offence against God and religion. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day, in a country professing Christianity, and the coi^ rupfion of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment, as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness : it imprints on the minds of the people that sense of their duty to God, so necessary to make them good citizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of re- calling them to the worship of their Maker. 4 Bl. Com. 64. 2. Legal process cannot be issued on a Sunday, except for treason, felony, or breach of the peace. 1 S. <^ B. 351. 1 West. Leg. Obs. 276. See ante, p. 309, n. 1. 3. A judgment is not erroneous because the verdict on which it was rendered was delivered on Sunday. 3 W. 56. Lewis' Cr. L. 422. 4. A principal may be taken up by his bail on Sunday. 1 Atk. 23§. 5. Parliament may sit on Sunday. 1 Black. R. 499. V. Of Contracts made on Sunday. }. A contract made on Sunday is void. 1 Br. 171. 6 PT. 231. 3fV.S(S. 446. SURETY OF THE PEACE. 525 2. A promissory note given on Sunday is void, and no action can be sustained upon it. 6 PF". 231. 5 Ma. 467. 3. In an action on a contract for the sale of a chattel, proof by defendant, that it -was received by the vendee on Sunday, from a third person, does not raise such a presumption that the contract was made on Sunday as will defeat the plaintifTs ac- tion. 1 FT. 4r -S. 477. 4. Under the act of the 22d of April, 1794, a contract made on a Sunday for the hire of horses to be used on an excursion of pleasure, on that or any other day, is void, and the hirer cannot recover. Under the same act, a contract made on Satur- day for the hire of horses to be used on an excursion of pleasure on Sunday, is void', and plaintiff cannot recover. 2 Jlf. 402. 5. But the hire of a carriage on a Sunday by a son, to visit his father, creates a legal contract. 6 Barr, 417. "The visit to his father, by the defendant, was dis- charging a filial duty, which nothing in the law hinders or forbids." Ibid. 420, per Coulter, J. 6. A bond executed on Sunday is not void at common law, but by reason o/ the statute. ^W.SfS. 444. 7. A bond is not perfected until delivery ; hence, a mere signing on Sunday does not render it void, if not delivered until the day following. 2 JSarr, 448. 8. Whether a marriage contract executed on Sunday be legal, quere ? 2 Harris, 417. VI. Breach op the Sabbath. 1. The proper mode of procedure, under the act of 22d April, 1794, against per- sons who perform worldly employment on Sunday, is by conviction, and not by a qui tarn, action. Z S. Sf R. 48. 2. The offence of working on Sunday does not amount to a breach of the peace. 1 im. 350. 3. A justice of the peace, who is authorized, by the act of 1794, to convict on view of a breach of the Sabbath, cannot enter forcibly into the premises of another where the breach is committed, to obtain a view. I Ibid. 347. 4. Persons who profess the Jewish religion, and others who keep the seventh day as their Sabbath, are not exempted from the penalties inflicted by the act upon those who do worldly employment on Sunday. 3 Ibid. 48. 8 Barr, 312. 5. Travelling is not within the prohibition of the act of 1794. 5 S. Sf R. 302. 6. One penalty only can be incurred in one day by exercising one's business on a Sunday. Cowp. 640. 7. When three or more persons agree to go to a church where divine service is to be performed, and to laugh and talk during the performance of the same, in a manner which might be excusable in a tavern ; and in so doing, manifest a determination to resist by force any effort that may be made to remove them or prevent their so doiiTg, they will be guilty of riot. 6 Penn. L. J. 223. Bright. R. 44. 8. It seems that the unnecessary performance of secular labours on Sunday, in such a way as to disturb the worship of others, is indictable in Pennsylvania. Ibid. Sttveta of tfte 3?fjice. I. The law and judicial authoritiea. | II. Form of a warrant and commitment I. Act op 1700, Purd. 1083. Dunl. 37. Seci. I. Whosoever shall threaten the person of another, to wound, kill, or de- stroy him, or ,do him any harm in person or estate, and the person so threatened shall appear before a justice of the peace, and attest that he believes by such threat- ening he is in danger to be hurt in body or estate, such person so threatening as aforesaid, shall be bound over with one sufficient surety, to appear at the next ses- sions or County Court, to be holden for the county where such offence is commit- ted, to be proceeded against according to law, and in the mean time to be of his good behaviour, and keep the peace towards all the king's subjects. 526 SURFTY OF THE PEACE. Surety of the peace, so called because the party that was in fear is thereby secured. This security consists in [the person complained of] being bound with one or more sureties, in a recognisance or obhgation to the king [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 $100.00,] with condition to be void and of none effect, if the party shall appear in court on such a day, and in the mean time shall keep the peace either generally towards the king and all his liege people, [to all the citi- zens of the commonwealth,] and particularly also with regard to the person who craves the security. 4 Bl. Com. 252. 1. Surety of the peace is demandable of right by any individual who will make the necessary oath, (1 Binn. n. 102,) that is, will swear that A. B. has threatened to do him " harm in person or estate,^' and that he believes " he is in danger to be hurt in body or estate." 2. Surety of the peace ought not to be granted on account of a. past beating, un- less there be fear oi future danger ; the remedy in such case being by action or in- dictment. 1 Jlsh. 140. 3. "Where an individual is brought before a magistrate for a breach of the public peace, as defined by our act of assembly, or common law, or for his good behaviour., under the stat. of 34 Edw. 3, ch. 2, (which is in force in Pennsylvania,) he has the light to commit the accused to prison, in default of bail for his appearance at the next court of Quarter Sessions ; and if, after commitment, bail is offered for the of- fender, the magistrate who committed him has the right to take bail for his appear- ance at court, and then the keeper must discharge the prisoner ; but then it is the duty of the magistrate to make a return of such a case to the court, in the same way that he would have done if bail had been originally entered. And, let it be observed, that a committing magistrate, in this state, has no authority to bind a person to keep the peace, or for his good behaviour, longer than until the next terra of the court-; when the case must 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 behaviour, for such period as they in their discretion shall require." Phila. Q. S., July 24, 1847, per Parsons, J. 11. Copy of a Warrant for Threats. n COUNTY, ss. 2r|)c CommonSncaltf) of iaennsjHjanfa, To the Constable of the Township of S , in the County of B , greeting: WHEREAS, J. D., of the township of H., in the county of B., tavern-keeper, hath this day made oath before J. R., esquire, one of the justices of the peace in and for the county of B., that R. R., of the township of S,, in the said county, blacksmith, hath threat- ened to do him harm in person or estate, and that he believes that by such threatening he is in danger to be hurt in body or estate : You are therefore hereby commanded to take the said R. R., and bring him before the said J. R. Witness the said J. R., at S. township aforesaid, the first day of October, in the year of our Lord one thousand eight hundred and forty-four. J. R., Justice of the Peace. [seal.] COMMITMENT. B (VUNTV, ss. iElje Commontocaltlj of JDennsiilijcinfa, To the Constable of the Township of H , in the County of B , and to the Keeper of the Common Jail of the said county, greeting : WHEREAS, R. R., of the township of S., in the said county, blacksmith, hath been brought before G. H., esquire, one of our justices of the peace in and for the said county, by virtue of the warrant of J. R., esquire, one other of the justices of the peace in and for the county aforesaid, on the oath of J. D., — And whereas the said R. R. hath refused to find sufficient surety to keep the peace towards all our citizens, but especially toward the said J. I)., — ^These are therefore to command you the said constable to convey the said R. R. to the common jail of the said county, and deliver him to the keeper thereof, who is hereby enjoined to receive the said R. R., and keep him in safe custody until he find sufficient surety as aforesaid, or is otherwise legally discharged. Witness the said G. H., at H. township, aforesaid, the fiftli day of October, in the year of our Lord one thousand eight hundred and forty four. G. H., Justice of the Peace. [seal.J SWINE. 55T- S^ine. I. To be yoked, &c., if at large. Applica- tion may be made to a justice. II. Who shall advertise the swine. III. Proceedings if no owner appear. IV. Regulations in certain towns. V. The act extended. VI. Judicial decisions and forms. I. Act of 1705. Purd. 1083. Dunl 54. Sect. I. No swine shall be suffered to run at large without rings and yokes, under the penalty of forfeiting half the value thereof, to the use hereafter expressed ; there- fore if any persons shall find on his, her, or their lands, within fourteen miles of the navigable parts of the river Delaware, any swine, hog or hogs, shoat or shoats, pig or pigs, without rings in their noses sufficient to prevent their turning up the ground, and triangular or three-cornered yokes or bows about their necks, and to extend at ■ least six inches from the angular point or corner, sufficient to keep them from break- ing through fences, it shall and may be lawful for him, her, or them, all such swine, hogs, shoats or pigs, to kill, and take, and drive and carry away, or to cause them to be killed, taken, driven or carried away : and being so taken and carried away, the said takers shall forthwith acquaint a justice of the peace therebf, and being by him legally attested, that the said swine were taken as aforesaid, without yokes, or bows and rings, the said justice shaJl immediately appoint and order two indifferent persons of the neighbourhood, to view and make a just and reasonable appraisement of all such swine, hogs, shoats or pigs, and to make return of their value, number and marks, unto the said justice of the peace, as soon as conveniently it may be done, after such appraisement ; one moiety or half the value whereof shall be for- feit to the person or persons, owners or possessors of such lands where found and taken ; and he or they that shall take up such swine as aforesaid, shall pay unto the said justice of the peace, for the use of the owner or owners of such swine, the other moiety or half part thereof; and thereupon the property of all such swine sha'.l be arid remain in the said owner or possessor of land as aforesaid, to his arid their own proper use for ever. II. Sect. II. Such justice of the peace shall make publication thereof, by a paper affixed on his house, and on some tree near the high road side, declaring the number, marks, and appraisement of all such swine, and by whom taken up, to the end that the owners may have notice thereof ; unto whom the said justice of the peace shall pay the other moiety or half the value of such swine taken and appraised, he iirst deducting out of the same two shilUngs for the appraisers, and two shillings for the justice's clerk, for their trouble therein ; but if it so happen that the moiety or half part, as appraised, will not pay the said four shillings, then such takers up shall pay what shall be wanting thereof. III. Sect. III. Provides, that if the moiety of such swine is not claimed by any person within twelve months after appraisement, the justice shall pay what money he has received,' deducting charges, unto the overseers of the poor of the township where taken up, for the use of the poor of the said township, and the owners of such swine shall be thereupon debarred from any claim or right to the same. IV. Sect. IV. Prohibits any swine to go at large in the towns of Philadelphia, Chester, or Bristol, whether-yoked and ringed or not ; and if found running at large, they shall be forfeit, one half to him or them that shall take up the same, and the other half to the use of the poor of the respective towns, to be paid to the overseers according to the use aforesaid ; the said town of Bristol being all the space contained within half a mile square from the Mill creek up the river Delaware. V. Act of May 10, 1729. Purd. 1084. Dunl 81. Sect. I. The same penalties, rules and orders, enacted and directed to be observed by the (preceding) act, within fourteen miles of the navigable parts of Delaware b'2.6 SWINE. river, shall be in force and extended throughout the province [commonvvealth] of Pennsylvania. (But this act of 1729 is repealed as to the counties of Bedford, Westmoreland, and Fayette.) VI. Unless swine are running at large, they cannot be proceeded against under the act of 1705, and the appraisement must so state the fact; swine escaping from their OAvner and caught on another's land are not liable to be killed. 10 S. S,- R. 393. INFORMATION" ON OATH, OF THE TAKER. n COUNTY, ss. BEFORE me, one of the justices of the peace in and for the county of D , personally came D. W., of the township of W in the said county, yeoman, and being duly sworn, did depose and say, that upon the fifteenth day of December, instant, he found upon his lands situate in the township aforesaid, three hogs and two shoots without rings in their noses, and yoke or bows about their necks, and the same being then and there found, did kill and take, (or drive and carry away.) And further saith not. D. W. Sworn and subscribed, December 17th, 1844. Before me, J. B APPOINTMENT OF THE APPRAISERS. To J. D. and R. R., of the township of W , in the County of D , greeting : WHEREAS D. W. of W township aforesaid, yeoman, hath this day made oath before me, one of the justices of the peace in and for the county of D , that, upon the fifteenth day of December instant, he found upon his lands situated in the township afore- said, three hogs and two shoats without rings in their noses, and yokes or bows about their necks, and the same being then and there found, did kill and take, (or drive and carry away)- — I do therefore appoint and order you, the said J. D. and R. R., to view and make a just and reasonable appraisement of all such hogs and shoats as aforesaid, and make return of their value, number and marks to me as soon as convenient. Witness my hand and seal at W township aforesaid, the seventeenth day of December, in the year of our Lord one thousand eight hundred and forty-four. J. P. Justice of the Peace. [seal.] RETURN OF THE APPRAISERS. To J. P. esquire, one of the justices of the peace in and for the County of D . IN obedience to your order of the seventeenth instant, we now make return, that we have viewed the hogs and shoats therein mentioned, and find that the number of the former is three and that of the latter two — that two of the said hogs are entirely white, and the third, which is the largest of the whole, has a large black mark upon his right side — that the two skoals are Mack and white mixed .- and that they are worth eleven dollars in the whole, that is to say, nine dollars for the three hogs, and two dollars for the two shoats. Witness our hands, De- cember the nineteenth, A. D. 1844. J. D. R.R. PUBLICATION TO BE SLVDE BV THE JUSTICE. PUBLIC notice is hereby given to all persons whom it doth or may concern, that on the seventeenth day of December instant, D. W., of the township of W in the county of D , and state of Pennsylvania, yeoman, appeareth before me J. P. esquire, one of the justices of the peace in and for the said county, and made oath, that upon the fifteenth day of December instant, he found upon his lands situate in the township aforesaid, three hogs and two shoats without rings in their noses, and yokes or bows about their necks, and the same being then and there found, he the said deponent did kill and take, (of drive and carry away.) In pursuance whereof I the said justice did, by my warrant, appoint and order J. D. and R. R., two indifferent persons of the neighbourhood, that is to say, of the same town- ship, to view and make a just and reasonable appraisement of all such hogs and shoats as aforesaid, and make return of their value, number, and marks unto me as soon as conveni- ently it might be done after such appraisement. Whereupon the said J. D. and R. R. did, u pon the nineteenth day of December instant, make return, that they had viewed the said hogs and shoats, and fodnd the number of the former to be three, and that of the latter two — that two of the said hogs are entirely white, and the third, which is the largest nf the whole, has a large black mark upon his right side — that the two shoats are black and white mired — and that they are worth eleven dollars in the whole, that is to say, nine dollars for the three hogs, and two dollars for the two shoats. And whereas it is directed that "one moiety or half the value of all such hogs and shoats as maybe killed, and taken, and driven, and carried away as aforesaid, shall be forfeit to the owners or possessors of such lands where found, and he or they shall pay unto the justice of the peace before whom information shall have been made, for the use of the owners of such swine, the other moiety or half part thereof, and TENDER. 529 thereupon the property of all sucli swine shall be and remain in the said owner or possessor of land as aforesaid, to his and their own proper use for ever." In conformity to the said act, the aforesaid D. W. hath this day paid unto me the said justice, the sum of five dollars and fifty cents, bejng one moiety or half the appraised value of such hogs and shoats, so found as aforesaid, for the use pf the owner or owners of such swine, which said sum (first deducting oUt of the same all legal costs) I have in my hands ready to pay to such persons as may be entitled thereto, if claimed within twelve months, otherwise the said sum of five dollars and fifty cents (after deducting all legal costs as aforesaid) will be paid to the over- seers of the poor of the township of W aforesaid, for the use of the poor of the said township, and the owners of such swine will be thereupon debarred from any claim or right to the same. Given under my hand at W township aforesaid, the twenty-first day of December, in the year of our Lord 1844, J. P., Justice of the Peace. 'Judicial exposition of the effects of a tender made for moneys due. 1. In all cases where a tender shall be made, and full payment offered, by dis- count or otherwise, in such specie as the party by contract or agreement ought to do, and the party to whom such tender shall be made doth refuse the same, and yet afterwards will sue for the debt or goods as ten4ered, the plaintiff shall not recover any costs in such suit. Purd. 310. Bunl. 48. 2. Tender, the offering of money or any other thing in satisfaction ; or circum- spectly to endeavour the performance of a thing ; as a tender of rent, is to offer it at the time and place when and where it. ought to be paid. Termea de la Ley, 557. 3. A legal tender ccfn only be made in the lawful money of the United States, (gold or silver,) hence an offer of bank-notes is invalid. But if such offer be made and not objected to on that ground, but specifically on some other account, the tender would be good. 5 S. ^ R. 326. 1 S. 415. 4. A mere offer to pay the money is not, in legal strictness, a tender ; nor is the defendant entitled to the advantage of a tender unless he plead it, and bring the money into court. 2 B. 190. 5. A tender of the sum due does not amount to an actual payment and discharge ; but it suspends the interest until a subsequent demand and refusal. 1 D. 407. 6. No tender is a substantial one but a legal tender ; and the only effect of a tender and a refusal, where the plaintiff has a direct cause of action, is to expose the plain- tiff to the loss of costs if the defendant pleads the tender, and brings the money into court. 10 S. tion of such bottles, and of the name or marks thereon, and may cause the same to be published for six weeks successively in a weekly newspaper published in the county wherein the same shall be manufactured or sold, except in Philadelphia, in which city said pub- lication shall be made for fhe same time in two daily newspapers thereof. ^ct of April 9, 1849. Dunl. 1 1 68. Sect. I. The second [seventh] section of the act [of 24th January, 1849] to which this is a supplement, be and the same is hereby altered and amended to read as fol- lows, viz. : That it is hereby declared to be unlawful for any person hereafter to fill with mineral waters or other beverages, in any such bottles so marked and not hav- ing permission of such owner thereof, or to sell, dispose of, or to buy, or traffic in any such bottles so marked, and not bought by him of such owner thereof; and every person so offending shall be liable to a penalty of fifty cents for every bottle so filled or sold, or disposed of, or bought, or trafficked in, for the first offence, and of five dollars for every subsequent offence, to be recovered by the party whose name or mark shall be stamped on the bottle so filled, sold or purchased,^ and who shall have complied with the provisions of the preceding section of this act; and the fact of any person using any such bottles for the sale therein of any beverage, not of the same manufacture as that with which they had been filled by the rightful owners thereof respectively, shall be prima facie proof of the unlawful use or pur- chase of such bottles as aforesaid ; and any such owner, upon making such proof before any alderman or justice of the peace of the proper city and county, may ob- tain process, and may thereupon search for, take and carry away, for his own use, any bottles so impressed with his name or mark, which may be found on the pre- mises, or in the wagons of such offenders : Provided, that the provisions of this act shall not extend to the counties of Erie, [Chestor] and Delaware. [Proviso repealed as to Chester county by act of 14th April, 1851. Pamph. 576.] Act of April 14, 1851. Pamph. 577. Sect. XXII. All and singular the penalties provided for in the first section of the act approved the 9th day of April, 1849, [the preceding act,] may be sued for and recovered by the parties respectively entitled thereto, as debts of like amount are by 532 TKADE MAKKS. law recoverable ; and any aldermau or justice of the peace granting proeesB of search, by virtue of the said act, may proceed to hear and finally determine as to the debvery to the claimant of any bottles found and seized under the said process. II. 1. An action on the case may be maintained by a manufacturer who marks his goods with the known and accustomed mark of the plaintiff— where the mark used by the defendant resembles the plaintiff's mark so closely as to be calculated to de- ceive, and as to induce persons to believe the defendant's goods to be of the plam- tiff's manufacture, and the defendant uses such mark with intent to deceive— and sells the goods so marked as and for goods of the plaintiff's manufacture ; and proof of special damage is not necessary. 5 Man. G. Sf. S. 109. S. C, 57 E. C. L. 109. [See 3 Perm. L. J. 143.] :, ,. , r ^ ,. 2. Where the plaintiff had invented a certain medicine, and the defendant had pre- pared an inferior article, which he sold as and for the medicine of the plaintiff, it was held to be a fraud, for which the plaintiff might maintain an action, without proof of special damage. 19 Pic*. 214. [Jlnd see S Doug. 293. 3 J?. <§r C. 541. 5 I». ^•B. 292. iB.Sr Ad. 410. 2 J»f. <§■ G. 385.] 3. No person has a right to use the names, marks, letters, or other symbols which another has previously got up, or been accustomed to use, in his trade, business, or manufactures. 2 Sandf. Ch. R. 586. JUd. 603. 4. Where a manufacturer adopts a certain trade-mark, and stamps it upon the ar- ticle manufactured, he is entitled to the exclusive use of it, and a court of equity will restrain, by injunction, any other parson who pirates such trade-mark from using the same. 1 1 Paige, 292. 5. And where the person pirates a trade-mark for the fraudulent purpose of pass- ing off his own article for that of him whose mark he has taken, and to supplant him in the good will of the business, he will be liable also to respond in damages for the injury thus caused. Ibid. 6. It is no defence to such a suit that the simulated article is equal in quality to the genuine. 2 Sandf. Ch. R. 586. Ibid. 622. 11 Pai^e, 293. 2 Wood. S; Minot, 1. 7. Nor that the maker of the spurious goods, or the jobber who sells them to the retailers, informs those who purchase, that the article is spurious, or an imitation. 2 Sandf . Ch. R. 586. 8. On a bill to restrain one from the use of trade-marks, the question is not whe- ther the complainant was the original inventor of the mark alleged to have been pirated, nor whether the article sold under the pirated mark is of equal value with the genuine ; but the grownd is, that the complainant has an interest in the good-will of his trade or business, and having taken a particular label, or sign, indicating that the article sold under it was made by him, and sold under bis authority, or that he carries on business at a particular place, he is entitled to protection against one who attempts to pirate upon the good- will of his friends or customers, by using such label, or sign, without his consent or authority. Ibid. 622. • 9. An alien manufacturer may maintain a bill for such injunction, or an action at law, against a citizen of the United States using his trade-mark. 1 1 Paige, 292. 2 Wood. 4r Minot, 1 . 10. Dodderidge, in Southern and Howe's case, ( Cro. Jac. 468,) cited a case to be adjudged in 33 Eliz. B. C. A clothier of Gloucestershire sold very good cloth, so that in London, if they saw any cloth of his mark, they would buy it without search- ing ; and another, who made bad cloth, put his mark upon it without his privity. Action on the case was brought upon this deceit, and adjudged it well lies. Treatise of Frauds, 185. 11. A court of equity will not, in a contest between persons who profess to be manufacturers of quack medicines, interfere to protect the use of trade-marks, by in- junction. 7 Penn. L. J. 176. 12. A complainant, whose business is imposition, cannot invoke the aid of equity against a piracy of his trade-marks. Ibid. 176. 8 Sim. 477. TRANSCRIPT. 53? . What constitutes a transcript from a justice's docket — of the effects pf taking a transcript from the docket of one justice to another justice, and of filing a transcript in the courts of Com- mon Pleas. Copy of a transcript. 1'. A TRANSCRIPT is the copy of an original writing or deed where it is written over, or exemplified. {Cowell.) A copy of the proceedings before a justice of peace, as they are recorded on his docket, is called a transcript. [See title Justices of the Peace, act of 1810, sect. 10.] 2. Transcripts of judgments of justices of the peace, filed in the Common Pleas, stand on the same footing in all respects as judgments originally entered in court 1 Binn. 221. ;J. A transcript entered on the docket of the Common Pleas is, as regards real estate, virtually a judgment of that court ; consequently, it may be set aside, on motion, with or without an issue, where it has been obtained surreptitiously, or it may be only opened to let the party into a defence, where he has missed his time either through accident or mistake. 1 P. P. 20. 4. A transcript of the judgment of a justice, filed in .pursuance of the act, is in its legal effect a judgment of the court of Common Pleas, and may be so styled in a s fire Judas to revive the same. 3 P. P. 98 5. If a judgment is rendered by a> justice, for a sum beyond his jurisdiction, and a transcript of such judgment is filed in the Common Pleas, it cannot be treated as a nullity in a scire facias to revive such judgment ; the remedy being by motion'to have the judgment struck off, or, perhaps, by writ of error. Ibid. 6. In an action brought to recover the amount of a judgment rendered by a justice of the peace in another county, a certified transcript of such judgment is prima fade evidence under the act of 1810, although not sworn to be a true copy. 2 P. P. 465. 7. Where it is alleged that the transcript returned to the Common Pleas does not conform to the docket of the justice, which is alleged to be erroneous, and an appli- cation is made for leave to amend the docket by the transcript, the court below are to determine, upon inspection of the docket, and all the papers and evidence before them, what are the true words of the record ; and if the amendment is refused, the Supreme Court wiU not, for that reason, reverse the judgment. 1 P. 370. 8. After an appeal has been entered, the justice, cannot grant a transcript to con- stitute a lien, according to sect. 10 of the act of 1810. 1 Binn. 224. 9. A transcript of the judgment of a justice of the peace, filed in the Common Pleas, creates no lien upon^the. defendant's real estate, if an appeal be entered before the justice within the time limited by law. 7 W. 540. 10. A transcript of the judgment of the justice of the peace filed in the court of Common Pleas, in pursuance of the act of 1810, is such a judgment of that court as an attachment may issue upon under the provisions of the 19th section of the act of 16th June, 1836. 2 JV. ^ S. 169. TRANSCRIPT FROM THE DOCKET OF ALDERMAN BINNS. The Mayor, Aldermen and Citizens ^ Warrant issued September 5, 1844. A. G. Fisher, of Philadelphia, (Constable. Returned September 9, 1844, on oath :— versus ( "I have here the body of the defendant, as within I Samuel Leech. ) am commanded." Cosis, tl so. TVoM. 25 Plaintiffs charge the defendant, as driver of cab No. 79, with hav- ing violated the loth section of an ordinance intituled "an Ordinance for the regulation of the owners and drivers of hackney coaches, wagfons, carts, and drays within the city of Philadelphia," passed April 16, 1812, by standing with said cab in a street other than those which are appointed fpr them, to wit, in Chestnut street, in the city of _ Philadelphia, opposite to Jones's Hotel, on the 5th of September inst, between the hours of 3 and 5 o'clock, P. M., he not being then actually employed, whereby he incurred a penalty of two dollars. A. G. Fisher, sw. P. J. H. Presser, sw. P. Whereupon, judgment for the plaintiff for two dollars. £o d., execution issued. 634 TRESPASS. Ret. September 27^1. September 12th, received a certiorari, and same day made a return and stayed the execution. September 10th, Tr. for the defendant. CITY OF PHILADELPHIA, ss. I CERTIFY, that the above is a correct transcript of the proceedings had before me, in the above suit, and of record on my docket. Witness my hand and seal, at Philadelphia, this thirteenth day of September, in the year of our Lord 1844. , John Binks, Alderman in and for Walnut Ward. Of the nature of Trespass ; in what cases a justice of the peace has jurisdiction, and when the complaint must be taken before the courts of Common Pleas ; in what cases and against whom it may be sustained. Mt of March 23, 1814. Purd. 693. Dunl. 305. Sect, I. The justices of the peace of the several counties of this commonwealth, and the aldermen of the city of Philadelphia, shall have jurisdiction of actions of trover and conversion, and of actions of trespass brought for the recovery of deimages fol: injury done or commit'ted on real and personal estate, in all cases, where t}ic value of the property claimed, or the damages alleged to have been sustained, shall not exceed one hundred dollars. 6 Binn. 33. Sect. II. It shall be the duty of the justice or alderman before whom any suit or action is brought, if the demand does not exceed ten dollars, to proceed to hear and determine as to him of justice and right shall appear to belong ; but if the demand in controversy should exceed that sum, then, on the request of either party, or his or her agent, three reputable citizens shall be chosen by the parties or their agents, as referees, or if they cannot agree, or if only one party or his or her agent should ap- pear, then the justice or alderman shall appoint the referees, who shall be sworn or affirmed justly and truly to assess the damages aUeged to have been sustained, or the value of the property in dispute, which they o/a majority of them shall have power io assess : Provided, that if both parties or their agents shall not prefer a reference, the justice or alderman shall proceed to hear and determine, and if the sum adjudged does not exceed five dollars and thirty-three cents, the same shall be final and con- clusive ; and each referee shall be entitled to receive one dollar for every day he shall have attended in each case : Provided, that if the defendant shall, before the trial of the action, make oath or affirmation that the title to Isftids will come in question in the said action, then the justice or alderman shall dismiss the same ; and in case of such dismissal the costs shall be paid in equal shares by the plaintiff and defend- ant : Provided always, that if the damages so found by the justice, alderman, or re- ferees, shall not amount to more than one dollar, the plaintiff or plaintifis shall not recover more costs than damages. \ S. fy R. 238. Sect. III. Either party shall have the right of appealing to the court of Common Pleas of the proper county, where the judgment given by the justice or alderman alone shall exceed five dollars and thirty-three cents, and where judgment given on vhe aAvard of referees shall exceed twenty dollars. 4 S. ^' /?. 73. Sect. IV. The process, return thereof, notices, awards, judgments, and appeals, and the proceedings of justices, constables, referees, and courts, and every proceed- ing necessary to carry this act into effect, which is not herein specially provid&d for, shall be made and done, under and according to the provisions and regulations in similar cases contained in the act, entitled " An act to amend and consolidate with its 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.' " See " Justices of the Peace." Sect. V. Nothing in this act contained shall be construed to extend to actions of Ejectment, replevin or slander, actions on real contracts -for the sale or conveyance TEESPASS. 535 lands 'and tenements, actions for damages ia personal 'aisault and battery, wounding or maiming, or to actions for fklse inrprisonment. 3 R. 325. Sect. VI. The said justices of the peace and aldermen' shall have original juris-' diction of all cases of rent, not exceeding one hundred dollars, to be recovered as debts of similar amount are recbverable. 8 P. R. 461. > Sect. VII. The said aldermen and justices shall take cognisance, by amicable suit, of all causes of action within their jurisdiction, whether such jurisdiction arises from this act, or from an act to amend and consolidate, with its 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." This action lies for immediate (injuries to the person,) or to the personal or real property of another, accompanied with force either actual or implied, whether the act be wilful or unintentional, or whether it be committed by the defendant, or by another at his command or procurement, or, having been done for his use or benefit, he afterwards assents to it. 1. For an unlawful act, trespass lies ; but where it is consequential or collateral, case is the proper remedy. (1 V. 586.) (In cases of trespass vi et armis[y>y' force]the justice has jurisdiction to the extent pointed out by the act of 32d March, 1814, but in actions of trespass on the case he has none.) 2. Trespass' on the case is an action brought for the recovery of damages, for acts Unaccompanied with force, and which in their consequences only are injurious ; for though an act may be in its eifects or consequences, if it is productive of any injury to another, it subjects the party to this aCtion. Esp. N. P. 597. 3. Per Lord EUenborough, C. J., " Whether the injury complained of arises directly or follows consequentially from the act of the defendant, I consider as the tnly just criterion of trespass and case." 1 Gamp_. N. P. C. 497. 4. If an act done cause immediate injury, whether it be intentional or riot, tres- pass lies ; and if done by the co-operation of several persons, all are trespassers, and all may be .sued jointly, tfr one is liable for the injurjidone hy ail; butit.must ap- pear that they acted in concert, or that the act of the one sued naturally and ordi- narily produced the acts of the others. 19 Johns, 381. 5. It is a trespass by a landlord to enter the house of a third person, to search for, and distrain goods fraudulently removed by his tenant, if no goods of the tenant are found in such house. 13 S. ^ R. 417. 0. A magistrate has jurisdiction of such trespass where the damage claimed is less than $100. Ibid. 7. From the sum of $100, down to the lowest possible coin, the justices have ju- ■ risdiction for trespasses committed on the land of another, in all cases except when the title of the land comes in question. When I speak of trespass, I mean the ac- . tion of trespass vi et armis, where the injury is immediate, and not an action of tres- pass on the. case, where it is consequential, as a nuisance. 13 S. ^ R. 420. 8. The law is settled, that none but the person in possession, of the land can maintain trespass quare clausumf regit. 2 Br. 109. 4 F. 218. 5 J^TA. 539. 9. In the case of personal chattels, he who has the general property need not prove possession, because the law draws the possession to the property ; but one who claims only a special property, must prove that he once had actuail possession, without which no special property, is complete. 3 S. i^ B. -512, 513. lOi.In trespass for taking and carrying away the plaintiiF's goods, it is not neces- sary for him to show title in the first instance ; his possession is sufficient, and the i defendant must show a better right in himself. 2 W. ISO. 11. A recovery in an actioii of trespass, for taking the goods of the plaintiff, divests his property in the goods. 1 R. 121. 12. A tenant may sustain an action of trespass quare clausum fregit against his landlord, for an injury done to his way-going crop after the expiration of thejease, and after he had removed from the premises. 8 W. 282. 13. An owner of the freehold may cut or carry away the grain or grass of one in wrongful possession, without subjecting himself to a recovery againlt him in an action of trespass. 5 W. 543. 536 TROVER AiSJJ UOJSyjfiRSiOJS. 14. In an action of trespass before a justice of the peace, for catting timber on the land of the plaintiff, it is not error that the record does not show in what comity the land is situate. 5 Penn. L. X 222. 3 /Jii. 425. 15. To stay proceedings in an action of trespass before a jusdoe, the affidavit, under the second section of the act of 1814, that the title to lands will come in question, raupt be positive ; it is not sufficient to swear to the best of the deponent's knowledge and belief. Carpenter v. Koons, Com. Pleas, Phila., Sept. 29, 1849. 16. Where a quantity of com was taken from the owner by a wilful trespasser, and converted by him into whiskey, held, that the property was not changed, and that the whiskey belonged to the owner of the original material ; and was liable to be seized in execution to satisfy his debt. 3 Comst. 379. 2 R. 423. 17. If a chattel wrongfully taken retains its original form and substance, or may I be reduced to its original materials, it belongs to the original owner ; and this rale, it seems, holds against an innocent purchaser, from the wrongdoer, without regard to the increased value bestowed by him upon the chattel. But tf it be converted by an innocent purchaser or holder into a thing of a different species, as where wheat is made into bread, olives into oil, or grapes into wine, the original owner cannot reclaim it. Ibid. 18. There is no such distinction, however, in favour of a wilful wrongdoer. He can acquire no property in the goods of another by any change wrought in them by hia labour or skill, however great the change may be, provided it can be proved that the improved article was made from the original material. Ibid. ^ee the preceding act, under the head " Trespass," for the Met of 22rf March, 1814 Pwrd. 693. i?unZ. 305. Sect. I. The justices of the peace of the several countiels of this commonwealth, and the aldermen of the city of Philadelphia, shall have jurisdiction of actions of trover and conversion, and of actions of trespass, brought for the recovery of damages for injury done and committed on real and [or] personal estate, in all cases where the value of the property claimed, or the damages alleged to have been sustained, shall not exceed one hundred dollars. 1. The action oi trover and conversion lies for the recovery of damages for the wrongful conversion of personal property, whether consisting of merchandise, money, bonds, notes, title-deeds, or any other chattel merely personal, in which a man may have a valuable property. 1 Chit. PI. 148. 2 ¥. 537. 3. This action reaches all cases where one man has obtained the goods of another by any means, and has sold or used them without the assent of the owner, or has refused to deliver them on demand. 3. It is confined to the conversion of some personal property, and it does not lie for injuries to land or other real estate, even by a severance of a part from the freehold, unless there be also an asportation. S S.^ P. 515. 4. But if, after severance from the freehold, as in the case of trees, the property severed be taken away, or, if coals dug from a pit be afterwards thrown out, trover will lie by a person having the right and possession, against a mere intruder and trespasser. JR)id. 5. So, where the trunks of trees blown down by a tempest, are cut and carried away by a tenant, trover is the proper remedy for the owner or lessor. 13 S. Sf R. 272. 6. It lies for money, though it be not in a bag, or otherwise distinguishable from other coin, because the thing itself is not to be recovered in this action, but merely damages for the conversion. Ibid, 7. This action in Pennsylvania is an equitable remedy, and therefore if a de- TROVER AND CONVERSION. 637 fondant have an equitable or legal lien on the property in his possession, it may be set up and allowed by the jury (or the justice) in assessing damages. 3 S. Sf R. 563. 8. If a man puts a chattel into the possession of a mechanic. to repair, and he pledges it, the owner can maintain trover against the pawnbroker. The pawnee can have no greater property jn the thing pawned than the pawnor himself had. 1 Br. 43. 9. The conversion of one partner of property which came into possession of the firm or partnership accounts, is the conversion of all, and makes all liable in trover. 4 5. 120. 10. Trover will not lie for goods seized by virtue of legal process, and in the custody of the law. 9 Johns. 381. 11. Trover lies against a common carrier who puts goods on a wharf, for such part of them as are lost, or not actually delivered to the consignee. 15 Johns. 39. 12. In an action pending before a justice of the peace for trover or trespass, - when the demand of the plaintiff exceeds ten dollars, the justice can, at the request. of either party, refer the decision of the cause to the referees; and the request of both parties to that effect is not required by law. 1 *3sA. 245. 13. In order to support this action, the plaintiff must show property in himself, and a wrongful conversion by the defendant; and this property must be either" absolute or special; but it is unnecessary that the plaintiff should ever have had' the actual possession, for it is a rule of law that the property of personal chattels draws to it the possession. 2 P. R. 45. 1 Y. 19. 14. The nature of absolute property is very readily understood, and requires no explanation ; a special property is the consequence of a rightful possession for a • particular and special purpose. 7 T. R. 392. 1 Bac. Abr. 50. 15. As to the other essential ingredients of this action, the conversion, it is to be observed, that every assumption of property in, or exercise of authority over,, the goods of another, inconsistent with the title of the rightful owner, or in ex- clusion of his right, is a conversion. (7 /oAms. .ff. 254, 306. \0 Ibid. lib. As if a bailee use or misuse the thing delivered to him, (2 Saund. 47 f,) or deliver it to a stranger; as where a factor pledges the goods of his principal for his own debt. 14 Johns. R. 128. 16. The wrongful taking and carrying away another person's goods is, itself, a conversion. (15 Johns. ^.431.) But where the goods have come lawfully into ■ the defendant's possession, and there has been no actual conversion, the plaintiff must demand them, and the defendant refuse to deliver them up, in order to constitute a conversion. 2 Saund. 47 e. 17. There are exceptions to this rule ;' as, where the possessor, on demand by the owner or his agent, answers that he is ready to deliver them, or being satisfied ' that the demandant is really the owner or agent, no conversion can be inferred. . GS.^R. 305. 18. But where the possessor refuses to deliver them because of a claim of his own to ownership, or of a lien which he asserts he has on them, such a refusal falls within the general rule, and is evidence of a conversion. Ibid. 19. It is no objection to the action, that the plaintiff has subsequently repossessed himself of the property, for he is still entitled to damages for the injury sustained. . 1 Johns. R. 65. 7 Ibid. 254. 10 3id. 176. 20. The value of the property at the time of the demand is the measure of damages ; but compensation may also be made for an aggravation of the injury by peculiar circumstances in the taking or detention. 12 S. ^ R. 89, 94. 6 Jbid. . 300. 4 W. 418. 3 W. 333. 21. Though trover niay lie for a certificate of stock as it does for a bond or' deed, yet it will not lie for a certain number of shares of stock claimed by the plaintiff. 17 S. Sr H- 285. 22. As a general principle, the defendant in an action of trover mayshow title- in a third person. 4 W. 241. 23. If the owner of goods brings an action of; trespass or trover against one' who has sold his goods without authority, and obtains a judgment equal to the* value of the goods, the right of property in the goods is changed, so that he can<^ ^38 VAttliANTS. not maintain an actioa afterwards for the goods against the vendee of the defendant; and this, although the first judgment should not be satisfied. 4 R. 285-6. 24. Constructive possession of unoccupied land is sufficient to support trover for the asportation and conversion of trees felled thereon. 9 W. 172. 25. If an executor separate certain articles of property from those of his testator; and declares them bequeathed to the legatee, it is such a delivery as will enable the latter to maintain trover for them. 7 Tv- 570. 26. Trover, in general, dies with the person, and the executor or administrator cannot be substituted in his place. Q S. Sf R. 272. 27. He who parts with the possession of his property for the purpose of defraud^ ing his creditors, cannot maintain trover to recover it back. But after his death, if his estate ,be otherwise insufficient to pay his debts, the action of trover survives to his personal representatives, who may prosecute it for the benefit of creditors. 28. Binding a horse taken up as an estray, for the purpose of discovering the •owner, is not such an act of conversion as will support an action of trover. 7 W. ■557. 29. A neglect, by one who takes charge of an estray, to pursue the course pre- scribed by the statute, does not make him liable to an action of trover, unless he uses ;the estray, or refuses to deliver him up on demand. Ibid. 'I. Who shall be deemed vagrants. | II. Judicial decisions. I. Act of June 13, 1836. Purd. 956. Dunl. 721. ' Sect. XXXII, The following' described persons shall be liable to the penalties imposed by law upon vagrants : First. Ali persons who shall unlawfully return into any district whence they have been legally removed, without bringing a certificate from the city or district to which they belong. Second. All persons who, not having wherewith to maintain themselves and their families, Uve idly, and without employment, and refuse to work for the usual and common wages given to other labourers in the like work, in the place where they then are. Third. All persons who shall refuse to perform the work which shall be allotied *.o them by the overseers of the poor, as aforesaid. Fottrth. All persons going about from door to door, or placing themselves in streets, highways, or other roads, to beg or gather alms ; and all other persons wan- dering abroad and begging. Fifth. All persons who shall come from any place without this commonwealth, to any place within it, and shall be found loitering or residing therein, and shall follow no labour, trade, occupation, or business, and have no visible means of subsistence, -and can give no reasonable account of themselves, or their business in such place. Act of Fehruary 21, 1767. Purd. 1148. Dunl. 92. Sect. I. It shall and may be lawful for any justice of the peace of the county where such idle and disorderly persons shall be found, to commit such oflTenders (being thereof legally convicted before him, on his own view, or by the confession . ■of such oflfenders, or by the oath or affirmation of one or more credible witness or witnesses) to the work-house of the said county, if such there be, otherwise to the •common jail of the county ; there to be kept at hard labour, by the keeper of sucli work-house or jail, for any time not exceeding one month. Sect. II. If any persons shall be found offending, in any township or place, against this act, it shall and may be lawful for any constable of such township or place, and he is hereby enjoined and required, on notice thereof given him by any of the inhabitants thereof, to apprehend and convey, or cause to be conveyed, such persons so'offehding to a justice of the peace of the county, who shall examine and VAGEANTS. 539 try suoli offenders, and, on such confession or proof, shall commit them to the work- house or jail of the county, there to be kept at hard labour during the term aforesaid ; and if any constable, after such notice giveii as aforesaid, shall refuse or neglect to > use his best endeavours to apprehend and convey such offenders before, the justice of the peace aforesaid, being thereof legally convicted before such justice of the peace, every such constable shall forfeit and pay to the overseers of the poor Of the township or place where such offence shall be committed, to the use of the poor thereof, the sum of ten shillings, to be levied by distress and sale of the offender's goods, by war- rant from such justice; and the overplus, if any, after the charge of prosecution and of such distress shall be satisfied, shall be returned to such offender. Sect. III. Any person or persons who shall conceive him, her, or themselves, aggrieved by any act, judgment or determination of any justice or justices of the peace out of Sessions, in and concerning the execution of this act, may appeal to the next General Quarter Sessions of the city or county, giving reasonable notice thereof; whose order thereupon shall be final. Jlct of March 22, 1836. Purd. 561. Sect. VI. All persons who may be convicted, according to the existing laws of this commonwealth, before the mayor, recorder, or any alderman of the city of Philadelphia, or before any alderman or justice of the peace of the county of Phila- delphia, as a vagrant or disorderly person, (1) shall be sentenced to suffer confine- ment, at suitable employment, in the vagrant apartment of the city and county of Philadelphia, for the term of one month, and to be fed, clothed, and treated as con- victs in the Philadelphia county prison are directed to be fed, clothed and treated. (1) The following extract from an opinion of Judge Paksons, delivered in the court of Quarter ' Sessions of Philadelphia county, on the 24th of July, 1847, will be found highly useful by the magistrate in the enforcement of the laws against vagrants and idle and disorderly persons. " There is another class of oiFenders, called ' disorderly persons' in our acts of Assembly. What constitutes this offence, is not, perhaps, so well understood. The acts done, or duties neglected, that make one an idle or disorderly person, are all pointed out in the act of the 21st of February, 1767, and these are all embraced within the act of the 13th of June, 1836, where the offence of vagrancy has been clearly described in the various classes of offences already quoted. If this term is to have no greater signification than what is given to it by the act of 1767, then all who fall within its description are made vagabonds by the act of 13th June, 1836, and then tliere are no offenders who can be called 'disorderly' persons; but we must suppose that the legislature intended to use them as synonymous terms. But did the legislature intend that the term 'disorderly' should have any more extended application against the good order of society, than what is understood by the term 'vagrant' in the act of 1836? I am inclined to think they did i for we must presume that the law-making power perfectly understood the terms which they have used. What, then, is understood by the word disorderly ? When applied to society, it means, lawless, contrary to law, inclined to break loose from restraint, unruly ; in a. manner, violating law and good order, contrary to rules or established institutions. Such is the definition given to the word by one of our best American lexicographers. "The act of 17 Geo. 9, ch. 5, speaks of 'idle and disorderly persons' and vagrants, or rogues and vagabonds, as two distinct classes of offenders ; and the aet of the 21st of February, 11'67, copies portions of this act of Parliament, and calls all such offenders 'idle and disorderly persons.' The aet of 13th of June, 1836, speaks of some offences not embraced in the fiiriher act, and also describes all who are mentioned in the act of 1767, and calls all such vagrants — and yet in the same session, as appears by the act of the 23d of March, 1836, provision is made for the punish- ment of disorderly persons. Now it seems to me, that, so ^r as these laws have relation to the city and county of Philadelphia, we may well suppose that many offenders who are not vagrants within the meaning of the act of 13th June, 1836, are ' disorderly persons,' and may be punished as such by the law of the 22d March, of that year. If such was the meaning of the legislature then no violation of the rules of good order in the community can well occur, without the of- fender rendering: himself obnoxious to punishment by some of the laws which I have referred to > in the course of these remarks, on the judgment of a local magistrate, unless the offence is of that grade whicn makes itthe subject of an indictment. " In my opinion, there are offences which would not render one a vagrant, within the meaning of the law, yet would make him a disorderly person, within the true meaning of the term ; and a magistrate may convict him as such. When a person is proved before a magistrate to be a ' dis- orderly person,' the punishment is the same as that inflicted upon a vagrant. He may be sentenced to the county prison for a period not exceeding thirty days. To make such a conviction a valid one, I think the magistrate ought to state clearly upon M* record, the acts done by the offender, which make him a disorderly person. Nor is he bound to ma.ke a return of ^Uch'conviction to the court, unless the case comes up in course before the court of Quarter Sessions. The party aggrieved by the decision of a magistrate has the right of appeal; and by the act of 18?8, the 540 WAGERS. 11. 1. Vagrants are, since the repeal of the act of 8th February, 17C6, on the sanie footing in -the city of Philadelphia, and the districts adjoining to it, that they are in other parts of the state, and, therefore, a justice of the city or county of Philadelpliia may lawfully commit any vagrant found therein, to prison, to be kept at hard labour for any time not exceeding one month, on conviction, according to the act of the 2Ist February, 1767. 1 Sm. Laws, 268. 5 Binn. 516. 2. Under the acts of Assembly relating to the " House of Refuge," the adjudication of a magistrate, on a charge of vagrancy and crime, is in no respect coiiclusive, but the whole subject is open on the hearing of a habeas corpus, when it is incumbent on the managers to show affirmatively, and from evidence, that the child detained in their custody is a proper subject for the House of Refuge, within the true intent and meaning of their charter. 1 .3sh. 248. 3. Whenever it is made to appear, affirmatively and clearly, that a male or female child, who exhibits knowledge and capacity to commit a crime, and who, if a male, is within the age of 21, and if a female, is within the age of 18, has been guilty of vagrancy, he or she may lawfully be committed to the House of Refuge. 3id. 4. Admitting that there may be a case in which a child under 14 may justly be adjudged a vagrant, yet the circumstances of such case ought to be urgent, unequi- vocal, and decisive. Ibid. 5. A father cannot transfer the custody of the person of his child to the managers of the House of Refuge, unless the child is adjudged a proper subject for the House of Refuge, by due course of law.. Rid. I. Of the nature and character ofwagers. I III. Wagers on a horse-race. II. Wagers on elections. | I. 1. Lord Ellenborough refused to try an action upon a wager on a cock-fight, observing it was impossible to be engaged in ludicrous inquiries of this sort, consist- ently with that dignity which it was essential a court of justice should preserve. (3 Camp. 140.) In another case, which was a wager whether a person might be lawfully arrested for a sura under £40, his lordship threw down the record with great displeasure, saying, " I certainly will not try this cause. I sit here to decide point* of law that arise incidentally before me, and the decision of which is necessary for the purposes of justice — ^not to state mj' opinion upon any question submitted to me from idle curiosity. I consider the attempt extremely indecent." (2 Camp. 108.) On the other hand, an action was held to be maintainable on a wager of a " rump and dozen," whether the defendant was older than the plaintiff. Mr. Serjeant Vaughan urged, with his usual effect, that instead of any public prejudice arising from the thing betted, it was for the public benefit to promote conviviality and good humour. Mansfield, C. J., indeed said, " he did not, judicially, know the meaning of a ' rump and dozen.' " But Heath, J., observed, that they knew very well, pri- jadges of the court of Quarter Sessions can at any time cause all persons imprisoned, either as vagrants, disorderly, or for a breach of the peace, to be brought from the prison, beibre them, and examine the same, and recommit or discharge the individuals thus imprisoned, as they shall tiiink law and justice require. " It would be difficult, if not impossible, to enumerate the cases where a committing magis- trate ought to commit one as a ' disorderly person;' for a correct decision of each case must de- pend upon the facts disclosed upon the hearing. The term * disorderly' is certainly very exten- sive in its signification, and all who violate the peace and good order of society are liable to be punished, either as vagrants, disorderly, or for a breach of the public peace, or should be bound fi>r their good behaviour. Each case should be carefully considered by the magistrate, and &p one should be improperly committed ; at the same time, whenever the law has been vidated, or the good order of society has been disturbed, there should be such an efficient administration of the law as is calculated to protect the public against future aggressions." — MS. Report. WAGERS. 541 yately, that a " rump and dozen" was what the witness stated, namely, a good din- ner and wine; "in which," said the learned jijdge, "I can discover no illegality." Ghambre, J., added, that " the witness had explained the ' rump and dozen' to mean a good dinner, and this is sufficiently certain. Then where is the immorality ? Is it impossible for people to sit down to a good dinner without being guilty of excess?" 3 Camp. 161. 2. But whatever may be the la* in England, or in any of our sister states, on the subject of wagers, in Pennsylvania it is settled that an action cannot be maintained to recover a sum of money, alleged to have been lost by the defendant to the plaintiff, upon a wager or bet. 6 W7i. 176. 3. As every bet about the age, or height, or wealth, or circumstances, or situation, , of any person, is either malicious, or indecent, or impertinent, or indelicate, such bets are illegal, and no court ought, in any case, to sustain a suit on such wager ; and this, whether the subject of the bet was man, or woman, or child, married or single, native or foreigner, in this country or abroad. I hold that no bet of any kind, about any human being, is recoverable in a court of justice." — Huston, J. 1 E. 42, 43. 4. In an action against the drawer of a check upon a bank, evidence is admissible, on the part of the defendant, to prove that the check was drawn in pursuance of an agreement, by which a sum of money was bet by the defendant with the plaintiff, upon a certain event ; and such consideration having been proved, the defendant is entitled to a verdict. 6 fFh. 176. 5. A notice to a stakeholder hot to pay over money deposited in his hands, upon an illegal wager, must come from the owner of the money. A notice from the per- son who made the bet and deposited the money, on behalf of the owner, is ineffectual to enable the owner to recover it back. 2 fV. ^ S. 59. II. Wagers on Elections. 1 . The statute against betting on elections, was intended to avoid all bets, paid or unpaid, and to suppress any thing connected with the subject ; it cannot, thereforcj be eluded by any appended agreement, which would give to an actual wager the similitude of something else. 7 W. 343. 3. All contracts, or promises, depending upon a bet on the result of an election, are nuU and void : ingenuity cannot invent any mode of widening such contract, that it can be enforced by law. 7 W. 294. 3. A., the winner of abet on the gubernatorial election of 1841, brought suit against B., the stakeholder, who had omitted to dehver up the money, after the loser had directed him to pay il to the winner, or to his order. Held, that since the act of 2d July, 1839, relating to elections, the plaintiff could not recover either tWe whole sum deposited, or the share deposited by himself. 3 Penn. L. J. 388. 4. Upon a deposit being made, to secure a "bet on an election, the money, eo in- slanii, vests in the guardians of the poor ; and their omission to sue for it within the t^me limited by statute, does not give to either of the wagering parties the right to recover any portion of the sum deposited. IMd. 5. Money contributed by ihdividuals, and deposited in the hands of a stakeholder as a wager upon the result of an election, cannot be recovered back, in a joint action by the contributors. S JV. Sr S. 405. 6. Money lost by a wager upon an election, and paid over to the winner, cannot be recovered back from hira by means of a foreign attachment, at the suit of a cre- ditor of the loser. 6 W. Sf S. 485. 7. The subject of betting on elections is comprehended in four sections of the election law of July 2d, 1839, including the 115th, 116th, 117th, and 118th sections. 8. J^oney lent in New Jersey, to bet upon the presidential election, may be reco- vered in Pennsylvania, in absence of any proof that betting on electionB is against the law of New Jersey. 2 Harris, 18. 542 WAKKANT FOE DEBT, &c. III. Wagers on a Horse-race. See acts of Assembly against Horse-racing, page 272. 1. If a bet be made on a horse-race, money deposited with a stakeholder as a forfeit, in case of the party not appearing, may be recovered back by the loser. 3 P- -R- 468. . ^ , .^ , .^, ^ 2. If the stakeholder pays the money to him to whom it was forfeited, without no- tice, and in good faith, he is protected by the limitation contained m the act of Assem- bly ; otherwise, if he acted unfairly and connived with one of the parties. Ibid. 3. Money staked on a horse-race may be recovered by the better, either from the ' winner or the stakeholder. Ibid. 494:. 4. Where a sum of money is raised by the contributions of several persons, to be bet upon a horse-race, and the same is deposited in the hands of the stakeholder by one of the contributors, such contributor can recover back from the stakeholder only that part of the money which he contributed, and not the whole deposit. Ibid. 5. In such action against the stakeholder, he may give evidence to show that part of the money staked was counterfeit, although it be not produced on the trial. Ibid. SSFarvant fotr ©etit, $cc» I. Form of a warrant for debt, &o. II. Of the service of a warrant, and the constable's return. in. Of the bail to be taken by the consta- ble, and his assignment of it. I. Warrant for Debt. CITY OF FHIMDELPHM, ss. Eiit (ilontmontocaltS of Slcnnsjlbanfa, To the Constable of Walnut Ward, or the next Constable of the said City, most convenient to the Defendant, greeting : YOU are hereby commanded to TAKE the body of [A. B.] if [he] be found in the said city, and bring [him] before [J. B.], one of our aldermen in and for the said city, forth- with, on the service hereof, to answer fC. D.] in a plea of debt or demand, "arising from contract, either expressed or implied," not exceeding one hundred dollars. Witness the said J. B. at Philadelphia, who hath hereunto set his hand and seal, the [tenth] day of [July,] in the year of our Lord one thousand eight hundred and forty-four. N J. B., Alderman. [seal.] This form may be made to answer in cases of trover and conversion, and in tres- pass, and for a penalty, by making on it, to the letter, the same alterations which have been made to render the form of summons for debt available in similar cases. [See pages 522, 523.] The return of the constable on a warrant can be no other than bringing the de- fendant before the justice, returning that he has taken bail for his appearance, or that he has not been able, after diligent search and inquiry, to find the defendant. Whatever may be his return, he should endorse it on the warrant, subscribe it with his name, and date it. 11. Of the Service of a Civil Warrant. When the constable arrests the defendant, he is to take him " forthwith ;" that is, without any unnecessary delay — " before the justice" who issued the warrant. A civil warrant must not be served on a Sunday ; nor may the constable, on any day, to serve a civil warrant, break open an outer door for the purpose of arresting the defendant ; but if he finds the outer door open, and is certain the defendant is in the house, he may break open the inner door to arrest him. In the eye of the law, the defendant is arrested so soon as the officer, who has the process, shall touch the body of the defendant. If after arrest the defendant shall break away to escape, the officer is authorized to break open outer, as well as inner, doors to take him. When the constable brings his prisoner before the justice, he should return the WEAPONS. biS warrant endorsed — ^"I herewith present the body of the defendant." If the defend- ant shall have been arrested and given bail, the constable may return his warrant endorsed— "I arrested the defendant and discharged him on bail, to appear at the justice's office on the sixth of July, inst., at 9 o'clock, A. M." If the constable shall have been unable to find the defendant, he may endorse the writ — "I have been unable to find the within named defendant." On this, as on all other occasions, when he returns process,, it- is the duty of the constable to subscribe his name, as constable, and to date liis return. III. When the constable does take bail, he should take it in the words of the act of Assembly of March 20, 1810, to wit : "WE, A. B. and C. D., are held and firmly bound unto E. F., ponstable of G- — •, or order, in the sum of $ — , on condition that the said A. B. shall be and appear before G. H., Esq., a justice of the peace in the said township of , on the '■ day of — — , . to answer in a plea . Witness out hands, the day of ." " If the bail for the appearance so taken by the constable shall be insufficient, the constable shall be liable therefor, as sheriffs now are, to the plaintiff or plaintiffs named in the warrant, notwithstanding" it may have been assigned to the plaintiff by the constable. It may be well, to save time, for the constable to appoint an hour in the bail bond, as well as a day, at which time the defendant shall appear at the office of the justice. If the bail bond shall be assigned to the plaintiff, it may be assigned in the following manner : " I, A. B., constable of township, [ward or district,] do hereby assign to C. D., the plaintiff named in the annexed warrant, all my right, title and interest, in the within obligation, for value received. Sealed and delivered slivered ) i of G. H. } 3d W. M. ) m presence i and W. M. ) A. B., Const. [seal.]'' If when the defendant is brought before the justice, on a warrant, he shall satisfy the justice that he is a freeholder, he should be liberated. The plaintiff may then proceed by summons. , If the defendant shall claim to be a freeholder, yet be unable to satisfy the justice of the fatt, if he gives bail for his appearance, at a time to which the case shall be adjourned, let him be liberated. If, when the parties meet, the defendant shall satisfy the justice that he is a freeholder, he should be allowed his privilege, and if sued, be sued by a summons. • He should, however, be allowed sufficient time to return home before any summons should be served on him. If he should not be so permitted, the intention of the legislature would be frustrated and set at naught. The establishment of his right of exemption would only act as a trap to hold him, while his privilege should be violated and process served upon him, which would render the, privilege of little or no value. . Since the passage of the act of 12th July, 1842, to abolish imprisonment for debt, no- warrant of arrest can be issued by a justice of the peace, in a civil action, except in cases of trover or trespass; or in cases within the exception in the act of 1842, viz. : where it is proved by affidavit, to the satisfaction of the justice, that the plain- tiff's demand is for the recovery of money collected by a public officer, or for official misconduct. [See title, "Arrest for Debt," page 104.] Act of May 13, 1850. Bright. Big. 319. Sect. XIV. Hereafter, any persons within the limits of the city and county of Philadelphia, who shall carry any fire-arms, slung-shot, or other deadly weapon con- cealed 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 544 WEIGHTS AND MEASURES. conviction thereof, shall be sentenced to undergo solitary confinement at hard labour in the prison of said county for a period of not less than one month, nor more than one year, at the discretion of the court; and the jury trying the caae may inter 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, {Pamph. 667,) for establishing a uniform system of police in Philadelphia, provides, that when any persons, to the number of twelve or more, shall be therein unlawfully, riotously, and tumultuously assembled, and shall refuse to disperse, after proclamation made, they shall be deemed guilty of a misde- meanor, and, on conviction, sentenced to solitary confinement at hard labour 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 not, whether said fire-arms or deadly weapon shall be used or not, unless the contrary can be satis- factorily established, and punished accordingly. Bright. Dig. 324. Act of April 15, 1845. Purd. 1166. Dunl. 1045. Sect. VII. In case any maker, vendor, or proprietor of beams, scales, weights, or measvires, within the city or county of Philadelphia, or county fdr which a sealer has been appointed, shall neglect or refuse to comply with the requisitions which the regulator of weights and measures is authorized and directed to make, or shall sell by false beams, scales, weights, or measures, such person or persons so ofiending shall for each and every ofience forfeit and pay the sum of five dollars, which may be sued for and recovered as debts of the like amount are by law recoverable, for the use of the poor of the city, district, or township, in which such fine shall have been incurred. Act of April 21, ISiG. Purd. 1167. Z>uwZ. 1076. Sect. I. Any person who shall, in any way, alter any measure, so that the capacity thereof is diminished, after the same shall have been adjusted and sealed, or shall, in buying or selling, use any measure so altered ; and any person who shall alter any scale, beam, or weight, so as to impair the adjustment thereof, after the same shall have been adjusted and sealed ; and any dealer, vender, or weigher, who shall have in his possession any scale, beam, weight, or measure, so altered as aforesaid ; shall, on conviction thereof, before any alderman or justice of the peace, forfeit and pay the sum of ten dollars ; and if the person so convicted refuse or neglect to satisfy such forfeiture, with costs, immediately, or produce goods and chattels suflBcient whereon to levy the said forfeiture, together with costs, then the said alderman or justice of the peace shall commit the offender to the jail of the county wherein the ofience was committed, there to be kept at hard labour for the space of thirty days. Sect. II. Any person who shall be convicted as aforesaid, and shall think himself or herself aggrieved by such conviction, may remove the proceedings, by certiorari, to the next court of Quarter Sessions, held for the city or county wherein the offence shall have been committed ; and, on the hearing of the certiorari, the court may, if they think proper, examine testimony ; but no judgment shall be reversed for any matter of form, if it shall be proved to the satisfaction of the court, that the offence charged has been committed by the defendant. Sect. III. One moiety of the forfeitures in money accruing and becoming due for any offence against this act shall be paid to the overseers or guardians of the poor of the city, borough, or township, wherein the offence shall have been committed, and the other moiety to the person or persons who shall prosecute and sue for the same. WOLVES AND PANTHERS. FOXES AND WILD CATS. 545 Act of ^pril 11, 1860. Pamph. 4:62. Sect. VIII. From and after the passage of this act, whenever any description of manufactured goods, commonly called dry goods or groceries, shall be sold by the piece in packages, or by weight, and the said pieces or packages shall be marked or represented to contain a certain number of yards, pounds or ounces, and the same shall be sold as containing that number or weight, when in fact the said pieces or packages shall contain a less number of yards, or pounds, or ounces, than so repre- sented, the seller or manufacturer thereof shall forfeit and pay to the purchaser a sum equal to double the value of the quantity or weight found to be deficient, to be reco- vered by action of debt in any court of law, or before any alderman or justice of the peace in this commonwealth, in the same manner that debts of like amount are now by law recoverable. The latest act relating to wolves and panthers is under date of March 16, 1819 ; the latest respecting foxes and wild cats was passed March 16, 1838. The march of population, and the bounties, ^ven, have so nearly exterminated those animals, that iSiey are now rarely seen in Pennsylvania. The bounty for the scalp of a full- grown panther or wolf, entitles the producer of it to twelve dollars, and the scalp of a panther or wolf puppy, to five dollars; the scalp of a full-grown fox, to fifty cents, a full-grown wild cat, seventy-five cents, and their scalps, when young, twenty-five cents each. The bounty is to be paid by the county treasurer, on orders drawn by the county commissioners of the county in which the animal was killed. The appli- cation to be made, and the scalps produced, to the county commissioners, who are to draw the order. 2^ APPENDIX. [The whole of the civil jurisdiction of the justices of the peace, and the greater part of the proceedings before them, heing given and regulated by statute law-r-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 legislatures. What is about to be submitted, is princi- pally taien from Robinson's Justice of the Peace, a recent English publication of much labour, ability, and authority.] There are several descriptions of acts of Congress and of the General Assembly. There 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 conmiunity ; a special or private act relates only to particular persons, or to private concerns. The courts of justice are bound ex offido to notice pubhc acts, without their being formally set foith, but- not so 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 become disputable, in whioh-case the legislature has thought proper, for avoiding aU 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 discovered in the common law, whether they arise frojn 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 pro- vision therein contained ; and a penal statute may also be a remedial law, and a sta- tute may be penal in one part, and remedial in another part. All statutes ought to be plainly and clearly, and not cunningly and darkly penned, especially in penal matters ; they should be shortly and artijicially penned, so as to comprehend much matter in few words, and so as to leave as little to construction as possible. The parts of a statute, in a popular, though not in a legal sense, are the title, the preamble, the purview, or body of the act, the clauses, provisoes, exceptions, 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 titje 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 in making the statute, but where the terms of the enacting clauses are clear and positive, the preamble cannot be resorted to. Pubhc acts are binding upon every citizen ; the judges are bound to take judicial 547 548 OF THE INTERPRETATION OF STATUTES. 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 pubhc proceed- ing in all its stages, and when the act is passed, it is, in contehiplation of law, the act of the whole community. (1) The true meaning of 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 recital of some inconveniences, wrhich by no means excludes any other, for which a remedy 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 com- pared together. In construing acts of the legislature, the courts are not to look only at the lan- guage 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 ex- pressions. A statute ought, upon the w^hole, 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 destructive 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 Legislature. It is to be compared to a wiU, in which the latter part, if inconsistent with the for- mer, 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 is 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. The endorsement 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 oif the act, and shall be taken to be part of the act. The qualities and incidents of a statute are : I. An act of the legislature binds all persons but such as are specially saved by it. II. A statute which gives corporal punishment, does not bind an infant ; contra of other statutes, if they do not except infants. III. Every statute made against an injury gives a remedy by action, expressly or impliedly. IV. An act of the legislature cannot alter by reason of time, but the common law may, since cessante ralione, cessat et ipsa lex, [when the reason of law ceases, the law itself ceases with it.] V. 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. VI. Whenever an act gives any thing generally and without any special inten- (1) "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, than it is of those passed under any other known form of government. In no existing government, is the voice of the people so imperative as in these United States. Hence the right of instruction by the constituent is universally acknowledged, jind almost as generally regarded as binding on the representative. Thus it is, as 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 nly, can faithfully represent those by whom they were elected. OF THE INTERPRETATION OF STATUTES. 549 tion declared, or rationally to be inferred, it gives it always subject to the gc n^ral control and order of the common law. VII. Whenever a statute gives or provides any thing, the common law provides all remedies and requisites. ' VIII. In statutes, incidents are always supplied by intendments ; in other words, whenever a power is given by a statute, every thing necessary to the making of it effectual is given by implication ; for the maxim is, quando lex aliquid concedit, concedere videtur et id per quod devenitur ad ilhtd, [when the law permits any thing, it seems also to permit that by which the end is obtained.] IX. Quando aliquid prohibetur, et omne per quod devenitur ad illud, [when any thing is forbidden, every thing else is also forbidden that induces that end,] by which every oppressionary law by colour of any usurped authority is forbidden, and all things by aJl mamier of means tending to destruction are prohibited. X. Whenever the provision of a statute is general, every thing which is necessary to make such provision effectual is supplied by the common law. XI. If an offence is made felony by a statute, such statute does by necessary con- sequence subject the offender to the like attainder and forfeiture, and does not require the like construction, as to those who shall be accounted accessories before or after the fact, and to all other intents and purposes as a felony, as the common law does. A mis-recital 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 mis-recited. 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 Umited, 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 eis in operation by means of this revival. No proceedings can be pursued under a repealed statute, though commenced be- fore the repeal, unless by special exception. A statute cannot be repealed by nonuser. But though nonuser 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 another 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 fonner statute be declared null and void. ■By the repeal of a repeaUng statute, the new law containing nothing in it that manifests the intention of the former act shall continue repealed, the original statute is revived ; but if a statute repealed by several acts, a repeal of one or two, and not of all, does not revive the first statute. If a repeaUng statute, and part of the original statute, be repealed by a subsequei^t 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 re- vived, are revived also. When an act of the legislature is repealed, it must be considered (except as to transactions past 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 Uable to be indicted for the disobedience. Wherever the statute forbids the doing of a thing, the doing is wilful, although without any corrupt motive, and indictable. If a statute enjoins an act to be done, without pointing out any mode of punish- ment, an indictment will lie for disobeying the injunction of the legislature.. Where a statute only enacts that the doing any act not punishable before, shall for the future be punishable in such afld such a particular manner, there the parti- cular method prescribed by the act must be specifically pursued, and not the common law method of indictment. 550 OF THE INTERPRETATION OF STATUTES. Th€ 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 indict- ment, no indictment lies. The construction of a statute, like the operation of a devise, depends upon the ap- parent intention of the maker, to be collected either from the particular provision, or the general context. Aicts 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 is 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 inten- tion 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. As a 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 consi- dered : 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 common 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. If a statute makes use of a word, the meaning of which is well kno^\-n, and has a certain definite sense at the common law, the word shall be expounded and received in the same sense which it is understood at the conmion law. It is the most natural and genuine 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 viseeribus actus. If any part of a statute is intricate, obscure, or doubtful, the proper way to dis- cover the intent is to consider the other parts of the act ; for the words and mean- ing of one part of a statute frequently lead to the sense of another, and in the con- struction of one part of a statute every other part ought to be taken into considera- tion. • And another rule of interpretation is, that one part of a statute must be so con- strued 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 \^ords of a statute must be uni- versal, 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 Mi^hich would amount to holding that the legislature did not mean what it has expressed. In all cases where the intention of the legislature is brought into question, it is OP THE INTERPRETATION OF STATUTES. 551 best to adhere to the words of the statute, construing th6m'aCcbrdingf to their rikture and import, in the order in which they stand in the act. The courts are not to presume the intentions of the legislature, hut to Collect them fi-om the words of the act ; and they have nothing to do with the poUcy of the law. They are not to construe statutes by equity, but to collect the sense of the legisla- ture by a sound interpretation of its language, and afccording to reason and gram- matical correctness. It is a safe method, in interpreting statutes, to give effect to the particular words of the enacting clauses. ' If the 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 construe 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 legislature as the legislature has made it. A remedial statute should he so construed as most effectually to meet the beneficial 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 itniay, 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 be made according to the intent of the framers, and not by anj' strict or strained inter- pretations. PeneJ 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 defining and setting down the fact and the punishm,ent, and not generally. A penal law shall riot be extended by construction. - The law of Pennsylvania does not allow of constructive offences or of arbitrary punishments. No man incurs a penalty, unless the act whic^h 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 s^ys one moiety shall he 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 qui tarn 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 ; but if the offence is in its nature several, each offender is separately Kable to tjie 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,dayis 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 theflbeirly 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 uneunbiguous language-. '-" Statutes against frauds are a satisfactory exception to the rule that penal statute? are to be taken strictly. 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 re- garded in the interpre1;ation, 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 interpretatioils, one contrary to plain sense, the other agreeable to it, the' lattfer shall prevail. Any absurd consequences, manifestly contradictory to common reason, the acts an; void.- ' Words and phrases, the meaning of which, in a statute, has been ascertaihed, are when used in a subsequent statute, to be understood in the sanie sense. 552 PEINiAii LiAWiS. 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 act of the legislature gives power to two justices finally to hear and determine an 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. Where a statute gives power to the justices to require any person to take the oaths, or do any other thing, the law by necessary imphcation 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 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 imphed, and the justice may commit him to the jail, to remain there till he shall comply. Where a statute appoints imprisonment, but hmits 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 justices shall commit an offender to prison for twelve months, 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 com- puted at twenty-eight days to the month, and not as a calendar month, unless it be so expressed in the act. 4- fit 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 |biHty, 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. Mr. Charles Smith, in his very instructive edition of the Laws of Pennsyl- vania, in a note to one of the early colonial laws, which declared that the penal laws here "should be, for the time being, by the general course of the law in the kingdOTtt of England, until the said laws shall be altered by William Penn, his heirs or assigns, or by the freemen of the said province," takes a rapid view of the promptitude with which the severity of the English laws was broken down, so soon as " the freemen" began to legislate for themselves. A portion of it is here re-published, not only as a proper introduction to our present penal laws, but as exhibiting a mass of facts on which Pennsylvania may take credit to her- self. In an excellent essay on the criminal law of Pennsylvania, written by the late William Bradford, (who had been successively Attorney-General and a Judge of the Supreme Court of the state, and who died while in the office of Attorney- General of the United States,) an historical view of our penal code is introduced, in the course of which he remarks, that "by this act, which is the basis of our criminal law, the following offences were declared to be capital : High treason, (including all those treasons which respect the coin,) petit treason, murder, rob- bery, burglary, rape, sodomy, buggery, malicious maiming, manslaughter by stab- PENAL LAWS. 553 bing, witchcraft and conjuration, arson, and every other felony, (except larceny,) on a second conviction. The statute of James L, respecting bastard children, was extended in all its rigour, and the courts were authorized to award execution forthwith. Arson is included, because such was the construction of the act at the time, and long after it ; one Hunt was actually executed under it. But on a sounder construction, it being held to be a felony within clergy, this benefit was expressly taken away in 1767. To this list, already too large, were added at subsequent periods, counterfeiting and uttering counterfeit bills of credit, counter- feiting any current gold or silver coin, and the crime of arson was extended, so as to include the burning of certain public buildings. All these crimes, except, perhaps, the impossible one of witchcraft, were capital at the Revolution. " We perceive by this detail, that the severity of our criminal laws is an exotic plant, and not the native growth of Pennsylvania. It has been endured, but, I believe, has never been a favourite." In support of this opinion we find, that as soon as the Revolution was effected, it was made an article of the Constitution, that the penal laws, as heretofore used,- " shall be reformed by the legislature of this state, as soon as may be, and punish- ments made in some cases less sanguinary, and in general more proportionate to the crimes :" To which it was added, that "to deter more effectually from the commission of crimes, by continued visible punishment of long duration, and to make sanguinary punishments less necessary, houses ought to be provided for. punishing, by hard labour, those who shall be convicted of crimes not capital." The legislature, in obedience to these instructions, proceeded, in the year 1786, . to ameliorate the penal code, and to introduce the punishment of hard labour. 1st. Thus, by the act of the 15th of September, 1786, the crime against nature, robbery, and burglary, were punished by the forfeiture of real and. personal estate, - and imprisonment at hard labour, instead of death. The offenders, however, were only bailable before a judge of the Supreme Court, and only triable in that court, . or in a court of Oyer and Terminer, or General Jail Delivery, held in and for the county where the offence was committed. Peremptory challenges were allowed as heretofore ; and it was declared that no attainder should work corruption of blood in any case, nor extend to the disinherison or prejudice of any person or ' persons, other than the offender. The last of these provisions, with some en- largement of its objects, has since, indeed, been incorporated into the existing constitution, which declares, (art. 9, sect. 19,) that " no attainder shall work cor- ruption of blood, nor, except during the life of the offender, forfeiture of estate to the commonwealth ; that the estates of such persons as shall destroy their own lives shall descend or vest as in case of natural death; and if any person shall be killed by casualty, there shall be no forfeiture by reason thereof." The same act of the 15th of September, 1786, modified the punishment for horse-stfealing, grand and petty larceny, and of accessaries to those offences before the fact ; and de- clared, generally, that " every person convicted of bigamy, or of being an accessary after the fact in any felony, or of receiving stolen goods, knowing them to be stolen, or of any other offence not capital, for which, by the laws now in force, . burning in the hand, cutting off the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping, or imprisonment for life, is or may be inflicted, shall, instead of such parts of the punishment, be fined, and sentenced to hard labour for any term not exceeding two years :" It enacted th^t the robbery or larceny of obligations or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, certificates on loan, on the credit of this commonwealth, or of all or of any of the United States, shall be punished in the same manner as robbery or larceny of any goods or chattels. It declared, that the constrained presumption, that the bastard child, . whose death was privately endeavoured to be concealed by the mother, was there- - fore murdered by her, should not be sufficient evidence to convict the party in-- dicted, without probable presumptive proof was given that the child was born • alive : And it concluded, that " every felony, or misdemeanor, or other offence whatsoever, nat specially provided for by this law, may and shall be punished as heretofore." The malefactors punished under this act were to be employed in > public as well as private labours ; they were to be clad in a particular uniform ;: 55i PENAL LAWS, and in case of escape, or absenting without good cause, they were liable to be condemned to a servitude of two days for every one of absence : Provision was likewise made for the interior government of the prisons ; for restoring the credit of such convicts as evinced a sincere reformation ; for appropriating the profits of the labour of the convicts ; and for the removal of convicts from one county to iinother, for safe-keeping: It was declared, that any person convicted of a capital offence, committed before the act was passed, might, upon application, be sen- tenced under the new system ; and the continuance of the act was limited to three years from the 1st of November, 1786. Jlct of May 31, 1718. Purd. 934. Dunl. 67. Sect. I. All inquests and trials of high treason shall be according to the due order and course of the common law, observing the directions of the statute laws of Great Britain, relating to the trials, proceedings, and judgments, in such cases. Sect. II. The inquiries and trials of all petty treasons, misprision of treason, ' murder, manslaughter, and homicides, and all such other crimes and misprisions as by this act or any other act of Assembly of this province, are or shall be made capi- tal, or felonies or death, which have been or shall be done, committed, perpetrated, . or happen, within this province, shall be as by this act is directed. Sect. III. All and all manner of crimes and offences, matters and causes whatso- ever, to be inquired of, heard, tried, and determined, by virtue of this or any other act or law of this province, or otherwise, shall and may be inquired of, heard, tried, and determined by judges, justices, inquests, and witnesses, qualifying themselves according to their conscientious persuasions respectively, either by taking a corporal oath, or by the solemn affirmation allowed by act of parliament to those called qua- kers in Gtreat Britain, which affirmation of such persons, as conscientiously refuse to take an oath, shall be accounted and deemed in the law to have the full efect of an oath, in any case whatsoever in this province ; and all such persons as shall be con- victed of falsely and corruptly affirming or declaring amy matter or thing, which, if the same had been upon oath, would, by law, amount to wilful and corrupt perjury, shall incur the same penalties, disabilities, and forfeitures, as persons convicted of wilful perjury do incur by the laws of Great Britain. Sect. IV. And upon all' trials of the said capital crimes, lawful challenges shall be allowed, and learned counsel assigned to the prisoners, and shall have process to compel witnesses to appear for them upon any of the said trials. But before such witnesses shall be admitted to depose or give any manner of evidence, they shall first take an oath or affirmation to say the truth, the whole truth, and nothing but the truth, in such manner as the witnesses for the king are by the law of this province obliged to do ; and if convicted of any wilful perjury, in such evidence, shall suffer all the punishments, penalties, forfeitures, and disabihties, which, by any of the laws and statutes of Great Britain, are or may be inflicted upon persons convicted of wil- ful perjury. Sect. V. It shall and may be lawful, for the justices of the court, where any of the said attainders or convictions shall happen, to give and pronounce such judgment or sentence against the persons so attainted or convicted, as their crimes respectively require, according to the manner, form, and direction, of the laws of that part of Great Britain called England, in the like cases, and thereupon to award and order execution to be done accordingly. Sect. XVIII. Where any person or persons charged, committed to prison, or convicted of any of the said capital crimes, being justly indebted to any other per- son or persons, he or they so indebted may be arrested, or their goods and chattels attached, to answer the suits of their respective 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. Sect. XXII. Where any murder or felony hath been or hereafter shall be com- mitted, in one county of this province, and one or more persons shall be accessary or accessaries to any such murder or felony in another county, then an indictment found or taken against such accessary or accessaries, upon the circumstances of such matter, before justices of the peace, or other justices or commissioners, to inquire of felonies in the county where such offences of accessary or accessaries, in any man- PENAL LAWS. 555 nter, have been or shall be committed or done, shall be as good and effectual in law as if the said principal offence had been committed or done within the same county where the indictment against' such ab'iiessary hath beeil or shall be found. Sect. XXIV. Every person who shall unlawfully and corruptly procure any witness to commit wilful and corrupt perjury, in any ma.tter or cause depending in suit and variance, in any of the courts of judicature in this province, or shall unlaw- fully and corruptly procure and suborn any witness to testify, upon- oath or affirma- tion, in any matter, cause, or thing whafsoeter, such offender shall forfeit the sum of forty pounds, one half thereof to the governor for the support of this government and the other half to the party gdeved ;' but for want of lands, goods, or chattels, to satisfy the said forty pounds, every such offender being convicted or attainted of perjury or subornation aforesaid, shall for his said offence suffer imprisonment for the spa:ce of six months, without bail, and stand on the pillory, &c., and shallsuffer all the other punishments, penalties, forfeitures, and disabilities, which are -inflicted upon such offenders by any law or statute of Great Britain. ■ Sect. XXVI. In all cases where any person or persons have been or shall be found guilty of any of the said crimes for which judgment of death should or may ensue, and shall be reprieved to prison without judgment at that time given him, her, or them, so found guilty, those who are, or hereafter shall be assigned justices, to deliver the jail where any such guilty person shall remain, are hereby empowered and authorized to give judgment of death, and award execution against such persons so found guilty and reprieved, as the same justices before whom such person or per- sons was or were found guilty, might have done before such reprieve. Sect. XXX. None of the said imprisonments hereby awarded as part of the punishment of the said offenders. Or any of thein, shall stop or avoid the avvarding or taking out of executions, to levy so much of the respective sums recovered against them as aforesaid, as such offenders refuse or neglect to pay, when such writs are taken out ; which execution shall be directed to the sheriff or coroner of the proper county, requiring him to levy the sums due upon such recoveries as aforesaid, of the lands and tenements, goods and chatttels of such offenders, returnable to the court Of Gluartef Sessions, next after the date or teste of such writs ;■- which •shall be executed accordingly, and the lands, goods, and chattels,.thereby seized, shall be sold and con- veyed by the said officers ; and such sales shall be as available and effectual in law, as any other sales of lands taken and sold for payment of' debts, by virtue of writs of execution, awarded out by the courts of Common Pleas in the said respective ■ counties, h' Biwti. 114. Act of March 11, 1789. Purd. 937. Diml. 167. Sect. XXII. And to the end and intent that such persons indicted or outlawed for felonies or other offences supposed by such indictments or outlawries to have been committed vnthin the city of Philadelphia, as shall dwell, remove, lurk, or be received without-the bounds and limits of the said city, may be brought to justice : Be it en- acted, that the mayor or recorder of the said city, for the time being, shall, and may, as often as occasion may require, issue his writ or writs- of capias to the sheriff, or sheriflls, or other officer of any county or counties, or town corporate; within this commonwealth, directed, commanding him or them to take and bring the body or bodies of any such person or persons, as shall be so as aforesaid indicted or outlawed, before him the said mayor or recorder, or either of them, to be dealt with, according to law ; and every sheriff and other officer, to whom any such -writ or writs of capias shall bfe directed and delivered, is hereby enjoined and required' to use due diligence to execute the same, under such pains and penalties as are by law incurred by any- sheriff or other officer for refusing or neglecting to obey and execute; any c«^i«s or other process to him directed and delivered. Sect. XXIII. And to the furthierend and intent that there may 'not be a failure of justice within the said city by reason of any person or persons who may be charged with having- committed any offence or offences therein, lurking or being in secret or other places in the neighbourhood thereof. Be it enacted, lliat it shall and may be lawful for any constable or constables of the said city, to whom amy warrant, under the hand and seal of the said hiayor, recorder, or alderman, or any of them, shall be delivered, commanding him or them to take any person or persons who shall have been charged with having committed any offence within the said city, and tOi 556 PENAL LAWS. bring him or them before the said mayor, recorder and aldermen, or any of them, knd he and they are hereby enjoined and required to execute the same, by making of the arrest, if the same can be done at anyplace within the county of Philadelphia, and also by bringing such offender or offenders before the said mayor, recorder and aldermen, or some of them. Sect. XXIV. And to the further end and intent that there may not be a failure of justice within the said city, by reason of any witness or witnesses residing or being without the bounds or hmits thereof, Be it enacted, that it shall and may be lawful for the said mayor, recorder and aldermen, or any of them, before whom any com- plaint, indictment, plea, matter or thing, of a criminal or civil nature within his or their jurisdiction, shall be made or depending, to issue his or their subpcena to any person or persons within this commonwealth, commanding him or them to appear and give evidence therein ; and every person to whom the same shall be directed, and on whom service thereof shall be duly made, shall attend accordingly, and give evidence, under such pains and penalties as are by law incurred by any person or persons refusing to attend and give evidence, when duly subpoenaed for that purpose. ^ct of April 5, 1790. Purd. 938. Dunl. 171. Sect. IV. Every person convicted of bigamy, or of being an accessary after the fact in any felony, or of receiving stolen goods, knowing them to have been stolen, or of any other offence not capital, for which by the laws in force, before the act, entitled "An act to amend the Penal Laws of this State," burning in the hand, cut- ting off the ears, nailing the ear or ears to the pillory, placing in and upon the pil- lory, whipping, or imprisonment for life, is or may be inflicted, shall, instead of such parts of the punishment, be fined and sentenced to undergo, in the like manner, and be confined, kept to hard labour, fed and clothed as is hereinafter directed, for any term not exceeding two years, which the court before whom such conviction shall be, may and shaU, in their discretion, think adapted to the nature and heinousness of the offence. Sect. VII. Every other felony or misdemeanor or offence whatsoever not spe- cially provided for by this act, may and shall be punished as heretofore. Jict of September 23, 1791. Purd. 938. Bunl. 186. Sect. XIIL Where any person shall be brought before a court, justice of the peace, or other magistrate of any city or county in this commonwealth, having juris- diction in the case, on the charge of being a runaway servant or slave, or of having committed a crime, and such charge, upon examination, shall appear to be unfounded, no costs shall be paid by such innocent person, but the same shall be chargeable to and paid out of the county stock, by such city or county. Act of April 22, 1794. Purd. Q39. Dunl. 202. Sect. I. No crime whatsoever hereafter committed (except murder in the firit degree) shall be punished with death in the state of Pennsylvania. Sect. IX. All claims to dispensation from punishment by benefit of clergy, or benefit of the act of Assembly, entitled " An act for the advancement of justice, and more certain administration thereof," (1718,) shall be and hereby are for ever abolished ; and any person convicted of any felony heretofore deemed clergyable, shall undergo an imprisonment at hard labour and solitary confinement, in the jail and penitentiary house (of Philadelphia) for any time not less than six months, and not more than two years, and shall be treated and dealt with, as is directed in the act to reform the penal laws of this state, except in those cases where some other specific penalty is prescribed by the act aforesaid to reform the penal laws of this state, or by this act. Sect. X. Every person convicted in any county in this state other than Phi- ladelphia county, of any crime (except murder of the first degree) which now is, or on the fifteenth day of September, 1786, was capital, or a felony of death without benefit of clergy, or of knowingly uttering counterfeit coin, or of being concerned in printing, signing or passing any counterfeit notes of the banks of Pennsylvania, North America, or of the United States, knowing them to be such, or of aheriiig any of the genuine notes of either of the said banks, shall as soon as possible be safely removed and conveyed by the sheriff, and at the expense of the commonwealth, to PENAL LAWS. 657 the jail and penitentiary house aforesaid, and therein be kept during the term of their confinement ; and every sheriff who shall neglect to remove and safely deliver at the jail aforesaid such convict, within forty days after the sentence is pronounced on the said convict, shall forfeit and pay the suni of one hundred dollars, to he re- covered in any court of justice, and applied one half to the use of the county in which the offence was committed, the other to such person as shall sue for the same. (See Forgery.) Sect. XL Every person convicted of any of the crimes last aforesaid, and who shall be confined in the jail and penitentiary house aforesaid, shall be placed and kept in the solitary cells thereof, on low and coarse diet, for such part or portion of the terra of his or her imprisormient, as the court in their sentence shall direct and appoint : Provided, that it be not more than one-half nor less than one-twelfth part thereof; and the inspectors of the said jail shall have power to direct the inflic- tion of the said soUtary confinement at such intervals and in such manner as they shall judge best. \ S. 8r R. 140. Sect. XII. Whensoever any person shall be convicted of any crime, which on the said fifteenth day of September, 1786, was capital, or a felony of death, or shall be removed from any county to the jail a>nd penitentiary house aforesaid, the court before whom such conviction is had, shalli within forty days after such offender is removed from the said county, make arid cause to be transmitted to the said inspect- ors, a report, or short account of the circumstances attending the crime committed by such convicts, particularly such as tend to aggravate or extenuate the same, and also what character the said convict appeared on the trial to sustain, and whether he had at any time before been convicted of any felony or other infamous crime ; which report the said inspectors shall cause to be entered in books or registers, to be provided for that purpose. Sect. XIII. If any person convicted of any crime, which on the said 15th day of September, 1786, was capital, or a felony of death without benefit of clergy, shall commit any such offence a second time, and be thereof legally convicted, he Or she shall be sentenced to undergo an imprisonment in the said jail and peniten- tiary house, at hard labour, during life, and shall be confined in the said solitary - cells at such times and in such manner as the inspectors shall direct ; and if any person sentenced to hard labour and sohtary confinement, by virtue of this or any former act, shall escape, or be pardoned, and after his or her escape or pardon, shall be guilty of any such offence, as on the said 15th day of September, 1786, was capital, or a felony of death without benefit of clergy, such person shall be sentenced to undergo an imprisonment for the term of twenty-five years, and shall be confined in the solitary cells aforesaid, at the discretion of the said inspectors. (I) 1 Cain. E. 42. Sect. XVI. No person indicted for any crime, the punishment of which is altered by this act, shall lose any peremptory challenge to which he or she would have been entitled, had this act not been passed ; nor be hable to be tried before any court, other than the Supreme Court, or court of Oyer and Terminer, in the county where the fact was committed. Act of March 21, 1806. Purd. 941. Durd. 244. Sect. II. In all cases of larceny, wherein by the laws of this commonwealth, in addition to restitution of goods stolen, it is directed, that any person convicted of such crime shall pay to the commonwealth the Uke value of such goods, and in all cases where by law a fixed or specific fine is affixed to the commission of any crime, the court before which conviction of any of the crimes aforesaid shall be had, is hereby authorized, in lieu thereof, to sentence the offender to pay such fine as the said court in its discretion may judge right : Provided, the same shall not exceed the fine heretofore afiixed by law. Act of April 4, 1807. Purd. 941. Dtinl. 247. Sect. I. Instead of two years' imprisonment, to which the power of the courts (1) The following are the crimes that were capital, or felony of death without benefit of clergy, on the 15th of September, 1786, viz. — Murder, robbery, burglary, rape, sodomy, bug- gery, malicious maiming, manslaughter by stabbing, witchcraft and conjuration, arson, con- cealment of the death of bastard children, counterfeiting any current gold or silver coin, and everv felonv fexcept larceny) on a second conviction. 558 PENAL LAWS. of this commonwealth is limited in and by the fourth section of an act, entitled "An act to reform the penal laws of this state," the said courts respectively shall hereafter be invested with the power of extending the confinement in such cases to a period not exceeding seven years, in their discretion, according to the circum- stances of the case before them : Provided, that the power thus conferred on the said courts shall not extend to offences enumerated in the said section, of bigamy, or of being an accessary after the fact in any felony, or of receiving stolen goods, knowing them to have been stolen. 15 S. S/- R. 74. Sect. IIL Where any person charged with having committed a felony in the city of Philadelphia, or in any county in this state, shall go or escape into any other county of this state, or into the city aforesaid, it shall and may be lawful for the president or any judge of the court of Common Pleas in the county where the said person may be found, to issue his warrant, authorizing and requiring the sheriff of the said county to take the said person and conduct him or her to the proper county or city where the said felony is alleged to have been committed, the expenses of which shall be paid to the said sheriff by the county or city to which the said person is conducted. Act of April 23, 1829. Purd. 943. Bunl. 487. Sect. IV. Instead of the penitentiary punishment heretofore prescribed, the punishment by soUtary confinement at labour shall be inflicted upon the several offenders who shall, after the first day of July next, (1839,) commit and be legally convicted of any of the offences hereinafter enumerated and specified, that is to say : Murder in the second degree. Every person convicted of murder in the second degree, shall be sentenced to undergo imprisonment in one of the state peni- tentiaries, as the case may be, and to be kept in separate or solitary confinement, at labour, for the first offence, for a period not less than four nor more than twelve years ; and for the second offence, for the period of his natural life ; and be fed, clothed, and treated as is provided in this act. Manslaughter. Every person duly convicted of voluntary manslaughter, shall be sentenced to undergo a similar confinement, at labour, for the first offence, for a period of not less than two, nor more than six years ; for the second offence, for a period of not less than six, nor more than twelve years ; under the same con- ditions as are expressed in the first clause of this section, and to give security on conviction, either for the first or second offence, for good behaviour during life, or for any less time, according to the nature and enormity of the offence. High Treason. Every person duly convicted of the crime of high treason, shall be sentenced to undergo a similar confinement, at labour, for the first offence, for a period not less than three nor more than six years ; for the second offence, for a period of not exceeding ten years ; under the same conditions as are expressed in the first clause of this section. Arson. Every person duly convicted of the crime of maliciously and volun- tarily burning the dwelling-house, or any other house, barn, or stable adjoining thereto, or any barn or outhouse having hay or grain therein, although the same shaU not be adjoining to such dweUing-house, or of having wilfully and maliciously set fire to any barrack, rick, or stack of hay, grain, or bark, with intent to destroy the same, belonging to any other person or persons, or of maliciously and volunta- rily burning any of the public buildings in the city of Philadelphia, or the public buildings at Harrisburg, or of any of the cities or counties in the state, or any church, meeting-house, or other building for public worship, or any college, acade- my, school-house, or library, or as being accessary thereto, shall be sentenced to undergo a similar confinement, at labour, for a period of not less than one, nor more than ten years for the first offence, and not more than fifteen years for the second offence. Rape. Every person duly convicted of the crime of rape, or as being acces- sary thereto before the fact, shall be sentenced to undergo a similar confinement, at labour, for the first offence, for a period not less than two, nor more than twelve years ; and for the second offence, for and during the period of his natural Ufe. Burglary. Every person duly convicted of burglary, or as accessary thereto PENAL LAWS 559 before the fact, shall be sentenced to undergo a similar confinement, at hbour, for the first offence, for a period not less than two, nor more than ten years ; and for the second offence, a period not exceeding fifteen years. SoBOsiY OR BUG&ERY. !^very person duly convicted of sodomy or buggery, or as accessary thereto before the fact, shall be sentenced to undergo a similar confine- ment, at labour, for the firgt offence, for a period not less than one, nor more than five years ; and for the second offence, not exceeding ten years. Forgery. Every person duly convicted of having falsely forged and counter- , feited any gpld o^r silver coin, which now is, or hereafter shall be, passing, or in circula,tion within this state, or having falsely uttered, paid, or tendered in payment, any such counterfeit and forged coin, knowing the same to be forged and counter- feit, or having aided, a,betted, or commanded the perpetration of either of the said crimes, or of having falsely made, forged, or counterfeited, or caused or procured to be falsely made, forged, or coiiiterfeited, or of having willingly aided or assisted in falsely making, forging, qr counterfeiting any bill or note, in imitation of, or pur- porting to be a bill or note, issued by order of the president, directors, and company of the bank of the United States, or of any of the banks within this commonwealth, incorporated in pursuance of aiiy act or acts of the General Assembly, or by any or either of the said banks, or any order or check on any of the sa;id banks or corpora- tions, or any cashier of either of the said banks, or of having falsely altered, or caused or procured to, be falsely altered, or willingly aided or assisted in falsely altering any bill, or note issued by any or either of the said banks, or by order of the president, directors, and company of either of the said banks, or any order or check on any of the said banks or corporations, or cashiers of either or any of the said banks ; or of having passed, uttered, or published, or attempted to pass, utter, or pubKsh as true, any false, forged, or counterfeit bill or note, purporting to be a bill or note issued by any or either of the said banks, or by order of the president, directors, and company, of any or either of the said banks, or any falsely altered order or check on any of the said banks or corporations, or any cashier, or either of them, knowing the same to be falsely altered, with intent to defraud any of the said banks, or any other body politic or person ; or of having sold, uttered, or delivered, or eauscid to be sold, uttered, or delivered, any forged or counterfeit note or bill, in imitation, or purporting to be a bill, or note issued by any or either of the said banks, or by order of the president and directors of any or either of the said banks, knowing the same to be false, forged; and counterfeited ; or of having made or engraved, or caused or procured to be made or engraved, or of having in his custody or possession, any metallic plate, engraved after the simihtude of any plate from which any notes or bills, issued by any bank, incorporated in pursuance of any act or acts of Assembly of this commonwealth, shall have been printed, with intent to use such plate, or to cause, or suffer the same to be used in forging or counterfeiting any of the notes or bills issued by the said, banks, or any or either of them, or of. haying in his custody or possession any blank note or notes, bill or bills,, engraved and printed after the similitude of any notes or bills issued by either of the said banks, with intent to use such blanks,. or cause or suffer the same to be used in forging or counterfeiting any of the notes or bills issued by the said banks ; or having in his custody or possession any paper adapted to the- making of bank notes or bills, and similar to the paper upon which any notes or bills of either of the said banks shall have been issued, with intent to use such paper, or cause or suffer the same to be used in forging or counterfeiting any of the notes or bills isSued by eithier of the said banks ; or of" having forged, defaced, corrupted, or embezzled amy charters, gifts,' grants, bonds, bills," wills, con- veyances or contracts, or of having defaced or falsified any enrolment, registry, or record via thin this state; or of having forged any entry of the acknowledgment, certificate, or endorsement, whereby the freehold or inheritance of any person or persons may be changed, or of counterfeiting the hand or seal of another, with intent to defraud, or the privy or great seal of the state, or the seal of any county in the state, shall be sentenced to be imprisoned in sohtary confinement, at labour, for the fijrst offence, for a period n^t less than one year nor more than seven years ; and. for the second offence, for a period not exceeding ten years. Robbery. Every person convicted of robbery, or as being accessary thereto before the fact, shaU be sentenced to undergo a similar confinement, for the first 560 PENAL LAWS. offence, for a period of not less than one, nor more than seven years ; and for the second offence, for a period not exceeding twelve years. Mayhem. Every person convicted of mayhem, his, or her aiders, ahettors, or counsellors, shall be sentenced to undergo a similar confinement, at labour, for the first offence, for a period not less than one year, nor more than seven years ; and for the cecond offence, not exceeding fourteen years. Kidnapping. Every person convicted of kidnapping, under the provisions of the lawrs of this commonwealth, shall be sentenced to undergo a similar confine- ment, at labour, for the first offence, for a period not less than five, nor more than twelve years ; and for the second offence, for a period of twenty-one years. (2) Horse-stealing. Every person convicted of horse-stealing, or as accessary thereto before the fact, shall be sentenced to undergo a similar confinement, at labour, for the first offence, for a period not less than one, nor more than four years ; and for the second offence, for a period of not more than seven years. Perjury. Every person convicted of perjury, or subornation of perjury, or of wilfully and corruptly making a false oath, at any general or special election, under the provisions of the several acts regulating the general elections vpithin this commonwealth, or of suborning any other person to make such false oath or afiirma- tion, or of having knomngly published, uttered, or made use of, any forged or false receipt or certificate, with intent to impose the same upon, or to deceive any judge or inspector at any election, shall be sentenced to undergo a similar confinement, for the first offence, for a period of not less than one year, nor more than five years ; and for the second offence, for a period not exceeding eight years. Sect. V. Every other felony, or misdemeanor or offence whatsoever, not spe- cially provided for by this act, may and shall be punished as heretofore. Sect. VL All definitions and descriptions of crimes, all fines, forfeitures, penal- ties, and incapacities, the restitution of property or the payment of the value thereof, and every other matter not particularly mentioned in this act, shall remain as heretofore. Though the bare taking again of a man's own goods which have been stolen, without favour shown to the thief, is no offence, (Hawk. P. C. b. 1, c. 59, s. 7,) yet, where he either takes back the goods, or receives other amends on condition of not prosecuting, this is a mis- demeanor punishable by fine and imprisonment. Jbid. s. 5. An agreement to put an end to an indictment for a misdemeanor is unlawful, (2 Wils. 341,) unless it be with the consent of the court. (4 J3l. Com.) Compounding informations on penal statutes is an offence at common law. Somewhat analogous to the offence of compounding felony is that of misprision of felony. Bosc. Cr. Ev. 311. Act of February 18, 1847. Bunl. 1087. Sect. I. After the first day of July next, no convict shall be sentenced by any court of this commonwealth to either of the penitentiaries thereof, for any term which shall expire between the fifteenth day of November and the fifteenth day of February, of any year. Act of April 10, 1848. Bunl. 1116. Sect. I. From and after the passage of this act, no indictment for misdemeanor, except forgeries and perjuries, shall be commenced or prosecuted in any of the courts of this commonwealth, unless the same shall have been commenced and prosecuted within five years from the time at which the alleged offence shall have been commit- ted : Provided, that nothing herein contained shall extend in any way to persons -fleeing from justice. [By act of 16th April, 1849, the limitation in cases of fornica- tion and bastardy, is two years, instead of five. Dunl. 1198. And by act of 25tli April, 1850, the limitation of two years is extended to prosecutions for adultery. Pamph. 575.] Act of April 9, 1849. Dunl. 1169. Sect. VII. In all cases where any one is convicted of an aggravated riot, the court shall be authorized to sentence the offender to an imprisonment in solitary confine- ment at labour, in the county prison, or the proper penitentiary of the state, for a period not exceeding three years. C2) See act of 3d March, 1847. Dunl. 1092. FORCIBLE ENTRY AND DETAINER, 561 The remedy in cases of forcible entry and detainer in Pennsylvania is rendered efiectusd by the statutes of 15th Rich. 2, ^hap. 2; 8 Henry 6, chap. 9 ; 31 Eliz. chap. 11, and 21 Jas. 1, chap. 15, which have been adopted in practice and are reported by the judges of the Supreme Court to extend here. (I Sm. Laws, 2.) For the reasons just stated it has been thought proper to insert here those portions of the English statutes just mentioned. The Duty of Justices of the Peace when any Forcible Entry is made INTO Lands. St. 15 Eich. 2, chap. 2. 1 Ruffliead, p. 400. The ordinances and statutes, made and not repealed, of them that make entries with strong hand into lands and tenements, or other possessions whatsoever, and. ' them hold with force, and also of those that make insurrections, or great ridings, • riots, routs, or assembhes, in disturbance of the peace, or of the common law, or in affray of the people, shall be holden and kept, and fully executed ; joined to the same. That at all times that such forcible entry shall be made, and complaint thereof cometh to the justices of the peace, or to any of them, that the same justices olt'jus-- lice, take sufficient power of the county, and go to tJie place where such force is made ; and if they find any that hold such place forcibly, after such entry made,, they shall be taken and put in the next jail, there to abide convict by the record of the same justices or justice, until they have made fine and ransom to the king ; and that all the people of the county, as well the sheriflS as others, shall be attendant upon the same justices to go and assist the same justices to arrest such offenders, . upon pain of imprisonment, and to make fine to the king. The Duty of Justices of the Peace where Land is entered upon or . detained with force. St. 8 Hen. 6, chap. 9. 1 Ruffhead, p. 545. II. For that the statute of 15 Rich. 2, chap. 2, doth not extend to entries in tene- ments in peaceable manner, and after holden with force, nor if the persons which enter with force into lands and tenements be removed and voided before the coming of the said justices or justice, as before, nor any pain ordained if the sheriff" do not obey the commandments and precepts of the said justices for to execute the said ordinance, many wrongful and forcible entries be daily made in lands and tenements by such as have no right, and also divers gifts, feoffinents and discontinuances some- times made to lords within the said counties, where they be conversant, to have maintenance, and sometimes to such persons as be unknown to them so put out, to the intent to delay and defraud such rightful possessors of their right and recovery for ever, to the final disherison of divers of the king's faithful Eege people, and likely daily to increase, if due remedy be not provided in this behalf: Our lord th(! king considering the premises, hath ordained, That the said statute, and all other statutes of such entries or alienations made in times past, shall be holden and duly executed ; joihed to the same. That from henceforth, where any doth make any forcible entry in lands and tenements, or other possessions, or them hold forcibly, . after complaint thereof made within the same county where such entry is made, to - the justices of the peace, or to one of them, by the party grieved, that the justices , or justice so warned, within a convenient time, shall cause, or one of them shall . cause, the said statute duly to be executed, and that at the costs of the party so ■ grieved. III. And moreover though that such persons making such entry be present, or else departed before the coming of the said justices or justice, notwithstanding, the same justices or justice in some good town next to the tenements so entered, or in. some other convenient place, ^eeording to their discretion, shall have, or either of 2l 532 FORCIBLE ENTRY AND DETAINER. them shall have, authority and power to inquire by the people of tne same count] , ;is well of them that make such forcible entries in lands, and tenements, as of them which the same hold with force ; and if it be found before any of them, that any doth contrary to this statute, then the said justices or justice shall cause to reseize the lands and tenements so entered or holden as afore, and shall put the party so put out in full possession of the same lands and tenements so entered or holden as before. And if any person, after such entry into lands or tenements holden with i'orce, make a feoffment or other discontinuance to any lord or other person, to have maintenance, or to take away, and defraud the possessor of his recovery in anywise, if after in assize, or other action thereof to be taken or pursued before justices of iissizes, or other the king's justices whatsoever, by due inquiry thereof to be taken, the same feoffments and discontinuances may be duly proved, to be made for main- tenance, as afore is said, that then such feoffments, or other discontinuance, so as before made, shall be void, frustrate and holden for none. IV. And also when the said justices or justice make such inquiries as before, they shall make, or one of them shall make, their warrants and precepts to be directed to the sheriff of the same county, commanding him of the king's behalf to cause to come before them, and every of them, sufficient and indifferent persons dwelling next about the lands so entered as before, to inquire of such entries ; whereof every man, which shall be empannelled to inquire in this behalf, shall have land or tenement of the yearly value of forty shillings by year at the least, above reprises. And that the sheriff return issues upon every of them at the day of the first precept returnable xx. s., and at the second day xl. s., and at the third time c. s., and at every day after, the double. And if any sheriff or bailiff, within a franchise, having return of the king's writ, be slack, and make not execution duly of the said ))recepts to him directed to make such inquiries, that he shall forfeit to the king xx/. for every default, and moreover make fine to the king. V. And that as well the justices or justice aforesaid, as the justices of assizes, and every of them, at their coming into the country to take assizes, shall have power to hear and determine such defaults and negligences of the said sheriffs and baiHffs, and every of them, as well by bill at the suit of the party grieved for him- self, as for the king, to sue by indictment, only to be taken for the king. And if ■ the sheriff or bailiff be duly attainted in this behalf by indictment, or by bill, that he which sueth for himself, and for the king, have the one moiety of the forfeiture of 20/. together with his costs and expenses. And that the same process be made against such persons indicted or sued by bill in this behalf, as should be against persons indicted or sued by writ of trespass done with force and arms against the 1 peace of the king. VI. And moreover, if any person be put out, or disseised of any lands or tene- ments in forcible manner, or put out peaceably, and after holden out with strong hand ; or, after such entry, any feoffment or discontinuance in any wise thereof be made, to defraud and take away the right of the possessor ; that the party grieved in this behalf shall have assize of novel disseisin, or a writ of trespass against such disseissor. And if the party grieved recover by assize, or by action of trespass, and it be found by verdict, or in any other manner by due form in the law, that the party defendant entered with force into the lands or tenements, or them after his entry did hold with force, that the plaintiff shall recover his treble damages against the defendant ; and moreover, that he make fine and ransom to the king. And that mayors, justices or justice of peace, sheriffs, and bailiffs of cities, towns and boroughs having franchise, have in the said cities, towns and boroughs, like power to remove such entries, and in other articles aforesaid, rising within the same, as the iustices of peace and sheriffs in counties and countries aforesaid have. VII. Provided always, That they which keep their possessions with force in any lands and tenements, whereof they or their ancestors, or they whose estate they . have in such lands and tenements, have continued their possessions in the same by ihree years or more, be not endamaged by force of this stattUe. FORCIBLE ENTRY AND DETAINER. o63 An act of Explanation, or Declaration, of the Statute of the 8 Henky 6, concerning forcible entries, the indictments thereupon found. St. 31 Eliz. chap. 11. 3 Ruffhead, p. 668. II. Whereas it is provided in the said statute. That they which keep their pos- sessions with force in any lands and tenements whereof they or their ancestors have continued their possession in the same, hy three years or more, be not endamaged by force of the said statute. III. And whereas divers good and loving subjects and their ancestors, or those whose estate they have for many years together, above the space of tliree years or more, have been in quiet possession of their dwelling-houses, and other their lands and possessions ; and now of late divers of her majesty's said subjects, having entries made upon their possessions, having had such quiet and long possession, for disturb- ing of such entrers, and for keeping of their possession against such entrers, by colour of indictments of forcible entry, or forcible keeping possession, found against them, by means of the oaths of such entrers, have been removed and put out of their dwelling-houses, and other their possessions which they have quietly held for the space of three years together or longer time, next before such indictments found against them, against the true meaning and intent of the said prqviso or clause con- tained in the said act : For remedy of which inconvenience, and for true declaration and explanation of the law therein, Be it ordained, That no restitution upon any indictment of forcible entry, or holding with force, be made to any person or per- sons, if the person or persons so indicted hath had the occupation, or hath been in quiet possession by the space of three whole years together next before the day of such indictment so found, and his, her, or their estate or estates therein not ended or determined ; which the party indicted shall and may allege for stay of restitution, and restitution to stay until that be tried if the other will deny or traverse the same : And if the seime allegation be tried against the same person or persons so indicted, then the same person or persons so indicted to pay such costs and damages to the other party, as shall be assessed by the judges or justices before whom the satne shall be tried ; the same costs and damages to be recovered and levied as is usual for costs and damages contained in judgments upon other actions. An act to enable Judges and Justices of the Peace to give Restitution OF Possessions in certain cases. St. 31 James 1 , chap. 15. 3 Ruffliead, p. 100. Such judges, justices, or justice of the peace, as by reason of any act or acts of parliament now in force, are authorized and enabled upon inquiry, to give restitu- tion of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon with force, or from them withholden by force, shall by reason of this present act have the like and the same authority and ability from henceforth (upon indictment of such forcible entries, or forcible withholdings before them duly found) to give hke restitution of possession unto tenants for term of years, tenants by court roll, guardians by knight's service, tenants by elegit, statute-mer- chant and staple, of lands or tenements by them so holden, which shall be entered upon by force, or holden from them by force. On the preceding pages will be found the English Statutes mentioned in Smith's Laws as those in force in Pennsylvania on the offence of ^^ Forcible Entry and De- tainer." Upon an examination of " Roberts's Digest" of the Enghsh Statutes in force in Pennsylvania, we find the following act on this subject : — 5 Richard 3, cap. 8. A. D. 1381. The penalty where any doth enter into lands where it is not lawful, or with force. And also, the king defendeth, that none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law ; and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy 564 FORCIBLE ENTRY AND DETAINER. manner. And if any man from henceforth do to the contrary, and thereof be duly convict, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will. By the common law, one who had a right of entry into lands might enter with force and arms, and detain his possession by force. This occasioned great inconve- nience and frequent breaches of the public peace ; it aiTorded an opportunity to power- ful men, under the pretence of feigned titles, forcibly to dispossess their weaker neigh- bours. Hence it became necessary by several statutes to restrain all persons from the use of such violent methods even of doing themselves justice. The entry novir permitted by law is a peaceable one ; that prohibited is such as is carried on with force, violence, and unusual weapons. The 5 Rich. 2, in the text, provided no speedy remedy, but leaves the party in- jured to the common course of proceeding by indictment or action — neither does n contain any provision against forcible detainer. [The notes which follow are those which were appended hy Judge Roberts to the English Statutes relating to Forcible Entry and Detainer. They contain much useful information for the Magistracy, and are therefore here published.] The entering into lands or tenements with a strong hand, unusual weapons, or with menace of life or limb, is deemed a forcible entry. If a man enters peaceably into a house, but turns the party out of possession by force, or by threats of personal hurt frightens him out of possession, this is a forci- ble entry, so other acts of violence may amount to a forcible entry, as breaking open the doors of a house, whether any person be in it or not, especially if it be a dwell- ing-house. But the mere entry by means of drawing of a latch, &c., would not be considered forcible. As to what shall be considered a forcible detainer, there is no doubt but that the same circumstances of violence and terror, which will make an entry forcible, will make a detainer forcible also. In respect to what kind of possession one may be guilty of such forcible entry and detainer ; the statute 5 Rich. 2, c. 7, the 15 Rich. 2, c. 2, and the 8 Hen. 6, c. 9, 'extend only to freehold estates ; and the 21 Jac. 1, c. 15, does only extend to estates holden by tenants for years, tenants by copy of court-roll, and tenants by elegit, statute merchant, and statute staple. After a peaceable, unirUerrupted possession of three years, a man may hold the land by force ; his possession being protected by 8 Hen. 6, cap. 9. For this offence the statutes afford remedy : — First, By summary proceedings had before one or more justices, upon view, or by inquisition. Second, By indictment in the Quarter Sessions. Third, By a civil action. Any one or more justices of the peace, upon view of the force, may make a re- tord of it, fine the offender, and commit him, until the fine be paid ; but they cannot award restitution of the possession without inquisition. The record made by the justice upon view, shall be a conviction, and is not travers- able. It ought to be certified to B. R. or the next assizes or quarter sessions. Regularly they ought to set the fine before they commit the offender, although they need not eo instanti set the fine, but may adjourn for a little time to consider of it. It is also held that if a certiorari came to the justices, they might proceed to set a fine, and complete their judgment, and it would be no contempt. If no fine is set, and the offender is committed, B. R. cannot set the fine, but will quash the con- viction. There ought to be an adjudication that the person, upon whom a fine is set, shall he committed until the fine is paid; and the want of such adjudication is sufficient ground to quash the conviction. Justices of the peace ought to adjourn their courts to afford the party an oppor- tunity of traversing the force. If the party tender atraverse of the force (which must be done in writing, and not by a bare denial hy parol) of plead three years' possession, the justice must award a venire facias t6 the sheriff, whereupon a jury will be summoned to try the traverse, on whose verdict the award of restitution ought to depend. FORCIBLE ENTRY. AND DETAINER. 565, If the jdry find part bf the indictments to be true, and part false, yet if the, part fiuiid to be true will warrant a restitution, it ought to be awarded, as where they find the entry was peaceable and the detainer oti^Y forcible. Award' of restitution ought not to be made in the defendant's absence, without callinguponhim to answer for himself; for it is implied by natural justice in the construction of dlilaAvs, that no one ought to suffer any prejudice thereby, witliout having first an opportunity of defending himself. Further, as to the form of the record upon these statutes, it seems to be required generally that the entry should be laid (maw?/ forti) with a strong hand, or {cum multitudine gentium) with a multitude of people ; but some ^ve held tjiat equi- pollent words will be sufficient, especially if the indictment concludes {contra for- mam statiCti) against the form of the statute, &c. But it is not sufficient to say only that he entered m et armis, which is the common allegation in every trespass. The degree of force ought to appear on the face of the indictment. ' The'case of Rex v. Bathurst may appear to impugn this rule. There the offence was not charged to have been committed with a strong hand, or a multitude of peo- ple, but merely vi et armis. It was, however, an indictment against /Aree persons for entering a man's dwelling-house, and turning him out of possession, and keep- ing him out, so that the fact itself naturally implied force. ^An indictment for a forcible entry and detainer may be maintained at common law, though they are generally brought on the statutes, and in an indictment grounded on the statutes, it is necessary to state the nature of the estate, because there must be restitution. It is absolutely necessary that it should appear what estate the person expelled had in the premises ; otherwise it will be uncertain whether any one of the statutes relative to forcible entries does extend to estates from >y-hich the expulsion was. An indictment may in some cases doiibtless be good, at the common law, although the conclusion be against the form of the statute; yet it may be well , questioned, whether an indictment which oh the face of it appears to be framed on a statute, can' be held good as an indictment at the common law. In an indictment for a forcible detainer, it is necessary to allege an entry, otherwise no offence appears ; for if tlie party had been in the quiet and uninter- rupted possession for three years, it would have been lawful to defend such pos- session with force. Where an indictment is removed by certiorari, B. R. may award restitution ^liscretionally ; and will do it, unless defendant plead very soon and take notice of trial within term. When the conviction is quashed, restitution must be awarded, although the title of the party claiming restitution had expired before the > conviction.- The court said that they had no discretionary power in such case, but were bound to award restitution on qu&hing the conviction. In a criminal proceeding under these statutes, title cannot be given in evidence to prevent restitution. The wife of the prosecutor may be exammed as a witness to prove the force. It is said that three years' peaceable possession bars restitution, but does not justify the offence. The statutes of forcible entry and detainer were made for very wise and good purposes, when the spirit of the times and the state of society were very different from the present ; they are still beneficial, but in a variety of instances have been prostituted and abused. Their provisions, though formerly construed liberally, should now, from the change of circumstances, receive a strict construction. Prosecutions for this offence ought to -be discouraged unless there is an actual force against the party in actual possession. An action of trespass lies upon the statute 15 Rich. 2, c. 2, against him who makes a forcible entry ; also upon 8 Hen. 6, c. 9, against him who makes a forcible entry and detainer, actions are usually grounded on the latter statute. In such action the plaintiff in his declaration must recite the statute. To this action the defendant may plead not guilty ; ox non est ingressus contra formam, statuti ; or non expalit nee desseisivit querentem. If an action be brought on the statutes of forcible entry and detainer, and the defendant makes himself a title, which is fotiiid for him, he shall be dismissed 566 OF THE BAILMENT OF PERSONS. without any inquiry concerning the force ; for howsoever he may be punishable in a criminal prosecution for doing what is prohibited by statute, as a contemnor of the laws and disturber of the peace, yet he shall not be liable to pay any dam- ages for it to the plaintiff whose injustice gave him the provocation m that manner to right himself. i • •«• ■ i, am In an action for a forcible entry there was a verdict for the plamtiff, with 20/. damages. As treble damages are in this case given by the statute 8 Hen. 6, c '.), it was awarded by the court, that besides the damages of 201. assessed by the jury, the plaintiff should recover 40Z. more. Or the court might award a writ of inquiry, but it is too late to apply for a writ of inquiry, to assess the damages omitted to be assessed by the jury who tried the cause, after judgment has been entered up. . . , , If double or treble damages are given by statute, wherein single damages are recoverable at the common law, the plaintiff may recover double or treble costs, as well as such double or treble damages, although the statute be silent as to costs. The 8 Hen. 6, c. 9, whereby treble damages are given in the case of a forcible entry, is silent as to costs, yet treble costs are recoverable in an action on that statute ; because single damages were recoverable at the common law in an iction for a forcible entry. ®f tne iiiiflment unn ^BvnminMion of ^vii^ontrs. 1 & 2 Philip and Mary, Cap. 13. A. D. 1554. I. For reformation whereof, be it ordained, and enacted by the king and queen's majesties, the lords spiritual and temporal, and the commons, in this present parlia- ment assembled, and by authority of the same, That from and eifter the first day of April, next coming, no justice or justices of the peace shall let to bail or mainprise any such person or persons, which for any offence or offences by them or any of them committed, be declared not to be replevised or bailed, or be forbidden to be replevised or bailed by the statute of Westminster primer, made in the parliament liolden in the third year of the reign of King Edward the First. II. And furthermore, That any person or persons, arrested for manslaughter oi felony, or suspicion of manslaughter or felony, being bailable by the law, shall after the said first day of April, be let to bail or mainprise, by any justice of the peace, if it be not in open sessions, except it be by two justices of the peace at least, where- of one be of the quorum, and the same justices to be present together at the time of the said bailment or mainprise ; which bailment or mainprise they shall certify in writing, subscribed or signed with their own hands, at the next Gteneral Jail De- livery, to be holden within the county where the said person or persons shall be arrested or suspected. III. And that the said justices, or one of them, being of the quorum, when any such prisoner is brought before them for any manslaughter or felony, before any bailment or mainprise, shall take the examination of the said prisoner, and informa- tion of them that bring him, of the fact and circumstances thereof, and the same, of as much thereof as shall be material to prove the felony, shall put in writing, before they make the same bailment ; which said examination, together with the said bailment, the said justices shall certify at the next General Jail Delivery, to be ftolden within the limits of their commission. IV. And that every coroner, upon any inquisition before him found, whereby any person or persons shall be indicted for murder or manslaughter, or as accessary or as accessaries to the same, before the murder, or manslaughter committed, shall put in writing the effect of the evidence given to the jury before him, being ma- terial : And as well the said justices as the said coroner, shall have authority by this act to bind all such by recognisance or obligation, as do declare any thing ma- terial to prove the said murder or manslaughter, offences or felonies, or to be acces- sary or accessaries, to the same as is aforesaid, to appear at the next General Jail Delivery, to be holden within the county, city, or town corporate, where the trial OF THE EXAMINATION OF PRISONERS. 567 thereof shall be, then and there to give evidence against the party so indicted, at the time of his trial; and shall certify as well the same evidence as such bond or bonds in writing, as he shall take, together with the inquisition or indictment before him taken and found, at or before the time of his said trial thereof, to be had or ■nade : And likewise the said justices shall certify all and every such bond, taken jefore them, in Uke maimer as before is said of bailments and examination : And in case any justice of the peace of quorum, or coroner, shall after the said first day of .4prt7, offend in any thing contrary to the true intent and meaning of this present act, that then the justices of Jail Delivery of the shire, city, town, or place where such )ffence shall happen to be committed, upon due proof thereof by examination before hem, shall for every such offence set such fine, on every of the same justices of peace and coroner, as the same justices of Jail DeUvery shall think meet, and shall estreat the same, as other fines and amercements assessed before justices of Jail Delivery ought to be, 2 & 3 Philip and Mary, Cap. 10. A. D. 1555. When in the last parliament holden at Westminster, among other things it was enacted, That such justices of the peace as have authority to bail any prisoners brought before them for any manslaughter or felony, before any bailment or main- prise, should take the examination of the said prisoner, and information of them that bring him, of the fact and circumstances thereof, and the same, or as much thereof as shall be material to prove the felony, shall put in writing before they make the same bailment ; which said examination, together with the said bailment, the said justices shall certify at the next general jail delivery to be holden within the limits of their commission, as by the same act more plainly is contained, and may appear: 11. And forasmuch as the said act doth not extend to such prisoners as shall be brought before any justices of peace for manslaughter or felony, and by such justice shall be committed to ward for the suspicion of such manslaughter or felony, and not bailed, in which case the examination of such prisoner, and of such as shall, bring him, is as necessary, or rather more than where such prisoner shall be let to bail or mainprise : Be it, therefore, enacted by the authority of this present parha- ment, That from henceforth such justice or justices before whom any person shall be brought for manslaughter or felony, or for suspicion thereof, before he, or they, shall commit or send such prisoner to ward, shall take the examination of such prisoner, and information of those that bring him, of the fact or circumstance thereof, and the same, or as much thereof as shall be material to prove the felony, shall put in writing within two days after the said examination ; and the same shall certify in such manner and form, and at such time, as they should and ought to do, if such prisoner, so committed or sent to ward, had been bailed, or let to mainprise, upon such pain as in the said former act is limited and appointed for not taking or not certifying such examinations as in the former act is expressed. And be it fur- ther enacted. That the said justices shall have authority by this act, to bind all such by recognisance or obligation, as do declare any thing materisd to prove the said manslaughter or felony against such prisoner as shall be so committed to ward, to appear at the next general jail delivery to be holden within the county, city, or town corporate, where the trial of the said manslaughter or felony shall be, then and thei e to give evidence against the party ; and that the said justices shall certify the-said bonds taken before them in hke manner as they should and ought to certify the bonds mentioned in the said former act, upon pain as in the said former act is men- tioned, for not certifying such bonds as by the said former act is limited and appoint- ed to be certified. Binding of the accusers to give evidence against the prisoners. See 31 Car. 5i, sect. 7, for bailing persons committed for treason or felony, and not indicted the next term The statute 2 & 3 Philip and Mary, c. 10, (in the text,) was the first authority given for the examination of a felon, in the English law. At the common law nemo tenebatur prodere seipsum, proof of the crime was not to be wrung from the crimi- nal himself, but to be obtained by other means and other men. According to this statute, it is the duty of every justice, before whom a prisoner 568 OF THE CORONER. charged with felony, or any homicide is brought, immediately to examine the cir cumstances of the crime alleged ; and to take, in writing, the examination of such prisoner, as well as the information of those who bring him. If, upon such examination, it shall appear, that no such crime was committed, or that the suspicion which had been entertained of the prisoner was wholly ground- less, in such case, and in such only, it is lawful to discharge him. Otherwise he must either be committed to prison, or admitted to bail. If it be a charge cognisable in the Sessions, a justice of the peace ought to bail the prisoner, if sufficient sureties be offered. But if the prisoner be charged with a crime, for which he can only be tried at a court of Oyer and Terminer, the justice, after taking his examination, must commit him to prison, from whence he may be brought upon a writ of habeas corpus, before a court having cognisance of the offence, or in vacation before a judge of the Supreme Court, or a president of the court of Common Pleas, and bailed. Act of April 15, 1834. Purd. 1068. Bunl. 653. Sect. LXVI. Provides, that the coroner, before he shall be commissioned, or exe- cute any of the duties of his office, shall enter into a recognisance and become bound in a bond, with at least two sufficient sureties, in one fourth of the sum which shall by law be required from the sheriff of the same county. Sect. LXVII. Provides, that the bond of the coroner shall be, that he will " well and truly perform all and singular the duties to the said office of coroner appertain- ing;" and shall be security to the commonwealth and to all persons for the faithful performance of aU his duties as coroner. Sect. LXVIII. Provides, that the above-named bond shall be recorded in the office of the recorder of deeds of the proper county, and when so recorded, to be by him transmitted to the secretary of the commonwealth. Sect. LXIX. Provides, that the sureties shall be approved by the judges of the court of Common Pleas and by the governor, before the commission shall issue. Sect. LXX. No judge, clerk, or prothonotary of any court, or attorney at law, shall become a surety on such bond ; nor shall any person be, at the same time, surety for a sheriff and a coroner. Sect. LXXII. The sheriff and the coroner shall, at his own expense, have his commission, immediately on receipt, recorded. Sect. LXXIII. Neither the sheriff nor the coroner shall, under the penalty of imprisonment, execute any of the duties of his office, until he shall have left his commission for record. Sect. LXXIV. AU the real estate of the sheriff, or coroner, and their sureties, within the proper county, shall be as effectually bound as by a judgment to the same amount. The names of the sureties to be entered on the docket of the pro- thonotary of the proper county. Sect. LXXV. The coroner to execute the office of sheriff on a vacancy taking place in the said office. Sect. LXXVI. A vacancy in the office of sheriff or corofaer to be filled by a new appointment, according to the constitution. Sect. LXXVIII. The sheriff and the coroner are bound to keep in their offices a proper book or books in which to enter all writs, &c., and at the expiration of his office, to deposit them in the office of the prothonotary of the court of Common Pleas. Act of July 2, 1839. Purd. 382. Dunl 880. The 96th section of this act [the general election law] provides that, in the ab- sence of the sheriff, or where there shall be a vacancy in that office, " the duty di- rected 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 penal- ties as the sheriff would have been for neglect or non-performance." OF THE CORONER. S69 Act of May 27, 1841. Pamph. 703. Dunl. 949. Sect. XV. That in all cases where by law the coroner of any cdunty 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 §aid justice shall have like power to select, summon, and compel the attendance of jurors and witnesses, and shall receive like fees and ta:x hke costs, and the inquest shall have- hke 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. \Acl of. March 28, 1814. Purd. 494. Bunl. 316. Fees of the Coroner. — ^Viewing a dead body, . . ._ . . $2 75 Summoning and quaHfying an inquest, drawing and returning inquisition, 1 37^ Summoning and qualifjring each witness, .• ^ 35 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. ExecTiting aiiy process or writs of any kind, the same fees as are allowed to the sheriff, and the same mileage. 4 Edward 1, Stat. 2. A. D. 1276. Concerning the duty of a Coroner, Of what things a Coroner shall inquire. A coroner of our lord the king ought to inquire of these things; if he be certified by the king's bailiffs, or other honest men of the country : First, he shall go to the place where any be slain or suddenly dead or wounded, or where houses are broken, [or where treasure is said to be found,'] and shall forthwith command four of the next towns, or five or six, to appear before him in such a place ; and when they are come thither, the coroner, upon the oath( of them, shall inquire in this manner, that is to wit : If they know where the person was slain, whether it were in any house, field, bed, tavern, or company, and who were there. Likewise it is to be inquired who were culpable either of the act, or of the force, and who were present, either men or women, and of what age soever they be, (if they can speak, or have any discretion^) and how many soever be found culpable by inquisition in any of the manners aforesaid, they shall be taken and delivered to the sheriff, and shall be committed to the jail ; and such as be founden, and be not culpable, shall be attached until the coming of the justices, and their names shall be written in roUs. If it fortune any such man be slain, which is found in the fields or in the woodi, first, it is to be inquired, whether he were slain in the same place, or not ; and if he were brought and laid there, they shall do so much as they can to follow their steps that brought the body thither, whether he were brought upon a horse, or in a cart. It shall be inquired also, if the dead person were known, or else a stranger, and where he lay the night before ; and immediately upon these things being inquired, the bodies of such persons being dead or slain shall be buried. II. In hke manner it is to be inquired of them that be drowned, or suddenly dead, and after such bodies are to be seen, whether they were so drowned or slain, or strangled by the sign of a cord tied streight about their necks, or about' any of their members, or upon any other hurt found upon their bodies, whereupon they shall proceed in the form abovesaid, and if they were hot slain, then ought the coroner to attach the finders, and all other in the company. Upon appeal of wounds, and such Uke, especially if the wounds be mortal, the parties appealed shall be taken immediately and kept until it be known perfectly whether he that is hurt shall recover, or not ; and if he die the defendant shall be kept ; and if he recover-health, they shall be attached by foUr or six pledges, after as the wound is great or small. If It be for a itiaim, he shall find no less than four pledges ; if it be for a small wound, two pledg'es shall suffice. Also all wounds ought to be viewed, the length, 570 OF THE CORONER. breadth, and deepness, and with what weapons, and in what part of the body the wound or hurt is, and how many be culpable, and how many wounds the.re be, and who gave the wound; all which things must be enrolled in the roll of tee coroners. If any be suspected of the death of any man being in danger of life, he shall be taken and imprisoned, as before is said. la like manner buy shall be levied for all murthers, burglaries, and for men slain or in peril to be slain, as otherwhere is used in England, and all shall follow the huy and steps, as near as can be ; and he that doth not, and is convict thereupon, shall be attached to be afore the justices of the jail, &c. 3 Henry 7, Cap. 1. A. D. 148S. The authority of the court of Star Chamber. Where one inquest shall inquire of the concealment of another. A coroner's duty after a murder committed. A justice of the peace shall certify his recognisances, ^-c. Item, the king, remembering how murders and slaying of his subjects daily do increase in this land, the occasions whereof be divers ; one that men in towns where such murders hap to fall and be done, vdll not attach the murderer, where the law of the land is, that if any man be slain in the day, and the felon not taken, the town- ship where the death or murder is done shall be amerced, and if any man be wounded in peril of death, the party that so wounded should be arrested, and put in surety, till perfect knowledge be had, whether he so hurt should live or die, and the coroner, upon the view of the body dead, should inquire of him or them that had done that death or murder of their abettors, &c., consentors, and who was present when the death or murder was done, whether man or woman, and the names of them that were present, and so found, to inroll and certify ; which law, by negUgence, is disused, and thereby great boldness is given to slayers and murderers, and over this it is used, that within the year and a day after any death or murder had or done, the felony should not be determined at the king's suit, for saving of the party's suit, wherein the party is oftentimes slow, and also agreed with, and by the end of the year all is forgotten, which is another occasion of murder. And also he that will sue any appeal, must sue in proper person, which suit is long and costly, that it maketh the party appellant weary to sue. For reformation of the premises, the king, our sovereign lord, by the assent of the lords spiritual and temporal, and the commons in the said parliament assembled, and by authority of the same, will that every coroner exercise and do his office according to the law, as is afore rehearsed ; and that if any man be slain or murdered and thereof the slayers, murderers, abet- tors, maintainers, and comforters of the same be indicted, that the same slayers and murderers, and all other accessaries of the same, be arraigned and determined of the same felony and murder at any time at the king's suit, within the year after the same murder and felony done, and not tarry the year and day for any appeal to be taken for the same felony or murder, and if it happen any person named as princi- pal or accessary to be acquitted of any such murder at the king's suit, within the year and day, that then the same justices before whom he is acquitted, shall not suffer him to go at large, but either to remit him again to the prison, or else to let him to bail, after their discretion, till that year and day be passed ; and if it fortune the same felons or murderers, and accessaries so arraigned, or any of them, to be acquit, or the principal of said felony, or any of them to be attainted, the wife, or next heir to him so slain, as shall require, may take and have their appeal of the same death and murder within the year and day after the same felony and murder done, against the said persons so arraigned and acquit, and all other their accessa- ries, or against the accessaries of the said principal or any of them so attainted, or against the said principals so attainted, if they be on live, and the benefit of his clergy thereof before not had, and that the appellant have such and like advantage as if the said acquittal or attainder had not been, the said acquittal or attainder not- withstanding ; and over that the wife, or heir of the said person so slain or murdered, as the case shall require, may commence their appeal in proper person, at any time within the year after the said felony done, before the sheriffs and coroners of the county where the said felony or murder was done, or before the king in his bench, or justices of jail dehvery. And also it is ordained by the same authority, that every justice of the peace within this realm that shall take any recognisance for the OF THE CORONER. 571 keeping of the peace, that the same justices do certify, send, or bring- the said recog- nisance at the next sessions of the peace where he is or hath been justice, that the party so hound may he called. A murderer indicted shall be presently arranged at the king's suit. 3,Inst. 131, 213. A murderer indicted and acquitted shall not be set at hberty. p Mod. 156. 1 Salk. 53. Kelyng. 25. See further for the duties of coroners. 1 & 2 P. & M. c. 13, sect. 5. And see further concerning murder. 1 Ed. 6, c. 12. 1 Jac. 1, c. 8. 21 Jac. 1, c. 27. 2 Geo. 2, c. 21, and 25 Geo. 2, c. 37. The office of coroner was in ancient times of much greater dignity and import ance than at present ; no one under the degree of a knight was ehgible to it ; and he was invested with powers which no longer pertain to that office. This office and power stiE continue to be judicial and ministerial. He is called coroner because his duties related chiefly to pleas of the crown. In the construction of the statute in the text, (4 Ed. 1, stat. 2,) commonly called the statute de officio coronatoria, the following points seem to be agreed on : — That the statute being wholly directory, and in affirriiance of the common law, the coro- ner 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. 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 appears at what place, and by what jurors, by name, it was taken, and that such jurors were sworn. The reason for bringing the jurors from the circumjacent towns is sufficiently ex- plained by what has already been observed in respect to jurors at the period when this statute was enacted. In after times the same reason did not apply ; they were equally competent to investigate the subject, if taken from any part of the county. At the present day they are selected and summoned by the coroner hiniself or his deputies. The subjects of inquiry for the coroner's inquest are cases of sudden and violent deaths, whether they take place from the visitation of God, by misfortune, as if sud- den death ensue in consequence of a fall or other casualty, or by suicide, or by the hand of another, whether by murder, manslaughter in self-defence, or by accident, and also of all those who die in prison. 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 can- not be found, 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 pre- sumed 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 circumstances of the proceeding. Yet the court refused in one case to quash an indictment taken a year after the body had been buried, ioi factum valet, quod fieri non debet. 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 parly 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 gene- rally concerning all the circumstances of the party's death. The inquest are also to inquire of all accessaries b^ore the fact, but they cannot inquire of accessaries after the feet. 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 Phihp and Mary, c. 13, the coroner is to take the examinations 572 DISTRESS FOR RENT. against the principal and accessaries before the fact, and put them in writing, and bind over the witnesses by recognisance to the next Jail Dehvery, 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 favour of the accused, for it is not so much an accusation or indict- ment, as an inquest of office, and therefore, the difference in the penning of the act of 1 & 2 P. and M. c. 13, touching the examinations taken by the justices of the peace and the coroner, is observable : The justices of the peace are to put in writing the information against the felon, of the fact and circumstances thereof, or so much , thereof as shall be material to prove the felony; but the coroner is to put in writing the effect of the evidence given to the jury before him, being material, without say- ing so much as is material to prove the felony, but the whole evidence given, whether to prove, or disprove, the felony. As to the coroner's duties further in relation to the prosecution of offences : — Formerly, if the persons found guilty as principals, or as accessaries, before the coroner's inquest, were not found, the coroner might proceed to outlawry against them at the common law, by process of capias to the sheriff!"; and if they were returned non inventi, then they were demanded at five counties and outlawed. And although now the coroner cannot proceed to outlawry, yet it is still his duty to use prompt measures for apprehending persons so charged, for which purpose he may direct his warrant to the sheriff" for arresting and securing them, and by the express provision of the 4 Ed. 1, s. 2, he may not only make process, but hue and cry, after them. The coroner being the proper officer to take inquisitions, super visum corporis, his attendance, for this purpose, ought to be procured, if practicable, and therefore notice ought to be given to him. If, however, he should omit to take an inquisition of an untimely death, it may be done by justices of jail dehvery, oyer and terminer, or justices of the peace, but it must be done openly, and if it be done secretly it may be quashed. The ministerial office of the coroner is only as a substitute for the sheriff"; for when just exception is taken to the sheriff" for suspicion of partiality, as that he is interested in the suit, or of kindred to either the plaintiff" or defendant, the process must be awarded to the coroner, in place of the sheriff", to be executed; and his du- ties, in relation to the execution and return of such process, are precisely the same with those of the sheriff" in other cases. Act of 21st March, 1772. IMridged.'] Where goods, chattels, &c., are distrained for rent, and the tenant or owner shall not, within five days after such distress, and notice thereof, with the cause of such taking, left at the mansion-house, or other most notorious place on the premises charged with the rent distrained for, replevy the same, and give sufficient surety to the sheriff", constable, or other officer who has made the levy, then, after the expira^ tion of the said five days, the person distraining shall and may, with the sheriff, Or any constable, &c., who are enjoined to aid and assist therein, cause the goods, &c., so distrained, to be appraised by two reputable freeholders, who shall be compen- sated, &c., and take a prescribed oath, &c., to be administered by the sheriff" or con- stable ; and after such appraisement, giving six days' public notice, the sheriff" or constable may lawfully sell the goods, &c., so distrained, for the best price that can be gotten, to satisfy the rent, and charges of such distress, appraisement, and sale, leaving the overplus, if any, in the hands of the sheriff or constable, for the owner's use. Upon any proved breach, or rescue of goods, &c., distrained for rent, the party grieved may, by special action on the case, recover his treble damages, and costs of DISTRESS FOR RENT. 573 suit, against the offender ; or against the owner of the goods distrained, in case the Fame be afterwards found to have come to his use or possession. , In case of distress and sale, for rent pretended to be due, when, in truth, no rent shall appear to be due to the person in whose right the distress is made^ then the owner of the goods distrained and sold, his executors, &c., by action of trespass or upon the case, against the person distraining, his executors, &c., may recover double the value of the goods, &c., so distrained and sold, with full costs. If any tenant shall fraudulently and clandestinely convey or carry off from the demised, premises, his goods, &c., with intent to prevent the landlord from distrain- ing for the rent, it shall be lawful for the landlord, or any one lawfully empowered by him, within the space of thirty days, next after such conveying, &c., to take and seize such gdids, &c., wherever the same may be found, as, a distress for the rent, and proceed as if they had been distrained on the premises ; but he shall not seize goods, &c., bona fide, [in good faith,], and for a valuable consideration, sold, before, such seizure, to any person not privy to the fraud. Any cattle or stock of the tenant, feeding or depasturing upon the premises ; all sorts of com and grass, hops, roots, fruits, pulse, or other product, whatsoever, growing on any part of the demised premises; may be distrained and sold for rent in arrear, as other goods and chattels may ; and the purchaser of such corn, grass, &c., shall have free egress and regress to and from the place where they are grow-, ing, to repair the fences, from lime to time, and, when ripe, to cut, gather, mstke, cure, and lay up and thresh, and carry the same away, in the same manner the tenant might legally have done had such distress never been made. Any person having rent in arrears upon any lease ended or determined, may dis- train for such arrear, after the determination of the lease, in the same manner as if it had not been determined, provided such distress be. made during the continuance of the landlord's title or interest. STATUTE OF MARLBRIDGE. 52 Henry 3, Cap. 4. A. D. 1267. A distress shall not be driven out of the county ; and it shall be reasonable. i ■■ None from henceforth shall ^ cause any -distress that he" hath taken, to be driven out of the county where it was taken ; and if one neighbour do so to another, of his own authority, and without judgmentj he shall make .fine (as, above is said) as for a thing done against the peace : nevertheless, if the lord presume so to do against his tenant, he shall be grievously punished by amerciament. Moreover, distresses shall be reasonable, and not too great. And he that taketh great and unreasonable dis?; tresses, shall be grievously amerced for the excess of such distresses. Fitz. Bar. 120, 275. 29 Ed. 3, c. 25, n. 13. This seems to be a mistaken re- ference, there being no statute in 29 Ed. 3. Kel.50, Enforced by S Ed. 1, c. 16. Erforced and amended by i Sf'i P. gf.. M. c. 12. Distresses shall be reason- able. Enforcedby^Ed.\,s.9,c.Vii. 2/mM06. See the references to cap. I. It appears that in those days the most high-handed oppressions had been carried on by the barons, and other powerful men, who,i refusing to submit themselves to the laws, and contemning an appeal to them, gratified tlieir. revenge,, their avarice, and their caprice, without restraint. , i. It had been long felt, as a grievance, that distresses were most oppressively used ; and if complaint was made of the oppression, the barons insisted on determining the complaint against their own officers, in their own courts, and would not permit the king's courts to hold cognisance. These powers, which they had failed to obtain when the statute of Merton was passed, they usurped during the troubles which succeeded that period. The 'first and. third chapters of this statute provide for the punishment of those who make an unlawful distress ; and the act in text contains very salutary provisions -oa the sulgect of distresses,..where they lawfully might be made. At the common law; a man might have driven or carried- a. distress whither he pleased, which wag very mischievous ; because if cattle were taken, the owner was bound iofindthesxy, and to give them sustenance if impounded in a pound overt, and yet when they were esloined into another county, by common intendment, he could have, no 574 DISTRESS FOR RENT. knowledge where they were, and of course might frequently be unable to replevy them. Though the act spieaks of driving a distress, which would seem to refer to living animals, yet it extends to the distraining of any goods and chattels whatever. 52 Henry 3, Cap. 15. A. D. 1267. In what places Distresses shall not be taken. It shall be lawful for no man, from henceforth, for any manner of cause, to take distresses out of his fee, nor in the king's highway, nor in the common street, but only to the king, or his officers, having special authority to do the same. 8 Co. 60. 7H.7. '22Ed.4.49. Fitz. Barr.Wl. Fitz. Trespass, \8S. Fitg. Brief, b\\, 842. Fitz. Avoivry, 87, 232. 2 Inst. 133. Hast. 226. Fegis. 98, 183. 9 Fd. 2, St. 1, c. 9. 2 Inst. 131. Cro. Eliz. 710. The first branch of this statute is in affirmance of the common law ; according tc which no subject can regularly distrain out of his fee and seigniory. If he should do so, the tenant may either have an action of trespass at the common law, or an ac- tion upon this statute. Yet if either after distress made, or after the lord comes to distrain, the cattle should be driven out of his fee by the tenant, they may be taken anywhere. The second branch of the statute prohibits the taking of distresses in the public highways, which perhaps never was lawful ; unless, indeed, the cattle had been driven there by the tenant, to avoid the distress. 1 & 2 Philip & Mary, Cap. 12. A. D. 1551. An Act for the impounding of Distresses. For the avoiding of grievous vexations, exactions, troubles, and disorders, in taking of distresses, and impounding of cattle. Be it enacted by the authority of this pre- sent Parliament, That from and after the first day oi April next coming, no distress of cattle shall be driven out of the hundred, cape, wapentake, or tathe, where such distress is, or shall be taken, except that it be to a pound overt, within the same shire, not above three miles distant from the place where the said distress is taken ; and that no cattle or other goods, distrained or taken by way of distress, for any manner of cause, at one time, shall be impounded in several places, whereby the owner or owners of such distress shall be constrained to sue several replevies for the delivery of the said distress, so taken at one time, upon jiain every person offending contrary to this act shall forfeit to the party grieved, for evcrj' such offence, one hundred shillings, and treble damages. Where distresses taken shall be impounded. .52 H. 3, c. 4. 3 Ed. 1, c. 16. Cok. Ent. 43. East. 164. Cro. El. 480, 646. March. 56. 2 Leon. 52. Moor, 453. Goldsb. 100, pi. 5, 145, pi. 62. Dyer, 237, pi. 33. See 3 Tnil. Sr Mary's sess. 1, c. 5, 8. 8 Anne, c. 14. 11 Geo. 2, c. 19, containing further directions concerning distresses. This statute was designed for the benefit of tenants, that they might know where to find and replevy the distress. Subsequent regulations, which have been made on this subject, will be noticed hereafter. The law of distress is a subject of great use and importance, and deserves par- ticular notice. A distress, dislriclio, is " The taking a personal chattel out of the hand of the wrongdoer, into the possession of the party injurinl, to procure a satisfaction, for the wrong committed." There are several causes for which a distress may be taken. 1. The most usual is the non-payment of rent. By the common law, distresses were incident to every rent-service, and by particular reservation to rent-charges also, but not to rent-seek, till the 4 Geo. 2, c. 28, extended the remedy to all rents alike, and thei'eby abolished all material difference between them. That statute does not extend to Pennsylvania, but the Act of Assembly of 1772 makes provision equally effectual on this subject ; permitting the distress and sale of goods " for any rent reserved and due upon any demise, lease, or contract, whatsoever." DISTRESS FOR RENT. 575 2. Distresses might, be made by the common law, for neglecting to do suit at the lord's court, or withholding certain personal services. 3. For amercements in a court leet, a distress was of common right. These two latter causes of distress could not exist in Pennsylvania. 4. Another injury for which a distress might be taken is, where a man finds beasts of a stranger wandering on his grounds, damage feasant; that is, doing him damage by treading down, or otherwise destroying, or injuring his grain, grass, or the like ; in which case the owner of the soil may distrain them, till satisfaction be made for the injury sustained. 5. Lastly, for several duties and penalties inflicted by statute, remedy by distress and sale is given ; as for non-payment of taxes, &c. These distresses were analogous to the common law process of execution, by seizing and selling the goods of the debtor, under a writ oi fieri facias. Secondly, as to the things which may be distrained. The general rule is, that all personal chattels are liable to be distrained. Yet to this rule there are excep- tions : certain articles being protected and exempted from being distrained. As — 1. Things wherein no one can have an absolute or valuable property; — e. g; dogs, cats and animals fera natnrse, cannot be distrained for rent. But when the reason of the rule ceases it no longer applies, for deer kept in a private enclosure, for sale or profit, may be distrained for rent. 2. Any thing in the personal use and occupation of a man, is, for the time, privi- leged and protected from a distress, as an axe or spade, with which one is labouring — a horse, whilst a man is riding him. Some have thought that horses drawing a cart loaded with com, though one be riding in the cart, may be distrained for rent, and for that purpose severed from the cart, if the person distraining does not choose to take the cart and com, as well as the horses, all of which it seems are equally liable to the distress. And it is said in some of the books, that a horse damage feasant, may be distrained, although a rider be upon him ; but the law appears to be otherwise. Such a distress would be clearly illegal. 3. There are certain things, the property of strangers, privileged from distress, for the sake of trade and commerce ; as cloth at a tailor's, a horse at a smith's shop, a horse at a public inn, the goods of a boarder at a boarding house, &c., cannot be distrained for rent due by the persons having the temporary charge or custody of' such property. But it would seem that a person's chariot, standing at a common livery stable, is liable to be distrained for rent due from the keeper of the stable. But generally speaking, whatever goods and chattels are found on the premist s--, whether they belong to the tenant or to a stranger, are hable to be distrained fci 4:ent ; othervvise a door would be open to infinite frauds upon the landlord. (1) In relation to the beasts of a stranger found upon the land, a distinction is to be observed : if they came there with the consent of the owner they are liable to be distrained, but if they get upon the land against his consent, they are not ^distrain- able, till after they have been levant and couchant (levantes et cubantes) on the land, which in general is presumed to be one night at least, nor even then are they dis- trainable, unless on notice the owner neglects to remove them, if they got upon the land in consequence of the insufficiency of the fence. On the other hand, if they came upon the land through the default of their owner, as by breaking a sufficient fence, they are distrainable, immediately as they enter upon the land. Some other things are privileged by the ancient common law, as the tools and utensils of a man's trade, beasts of the plough and sheep. But as such things may be taken in execution for debt, so they may be for distresses authorized by statute, which partake of the nature of executions. The reason they were privileged seems to have been, that as the distress at common law was merely held in pledge, to en- force the payment of the rent, and not taken as a satisfaction for its non-payment, the very end of the distress would be counteracted, by depriving the party of the instruments and means of paying it. (1) " That the goods of a stranger found on the premises are liable to distfess for rent, is one of the early doctrines of the common law, the reasons of which have long since ceased. It is a doctrine not suited to the transactions of men and the present state of society. Courts of justice themselves are extending the privileges of exemption to meet the exigencies of the present dav " —Gibson, J. 13 5'. ^ K. 180. " •'" 576 MSTKESS FOR EENT. By the common law nothing could be distrained for rent which could not be ren- dered again in as good plight as when distrained; for the distress, being only in the nature of a pledge or security, ought to be restored in the same plight, where the debt is paid. Therefore sheaves of corn, &c., could not be distrained. — But by the act of the 2l8t of March, 1772, it is declared, that any cattle or stock of the tenant, feeding and depasturing upon all, or any part of the premises demised, and also all sorts of corn and grass, hops, roots, pulse, or other produce whatsoever, which shall be growing thereon, may be seized as a distress for rent in arrear, and sold towards satisfaction of the same ; and the purchaser of such com or other produce shall have free egress and regress to and from the same when growing, to repair the fences from time to time, and when ripe, to cut, gather, make, cure, and lay up and thrash, and after to carry the same away, in the same manner as the tenant might have legally done had such distress never been made. Lastly, things attached to the freehold cannot be distrained, as windows, doors, millstones, and the like. Neither are such things liable to be distrained if detached from the freehold, for a temporary purpose, as the sash of a window to be cleaned or repaired, or a mill- stone, thrown out for the purpose of being picked. The law of distresses for rent is greatly altered from what it was at common law. A distress is no longer taken as a pledge, to enforce the payment, but as a satisfac- tion for the non-payment of rent. Such distresses must be made in the daytime, on the demised premises, or upon commons appendant, or appurtenant thereto, unless where the property has been clandestinely removed therefrom, to prevent the landlord from distraining, in which case he is empowered, at any time within thirty days, to distrain the chattels so re- moved, wherever they may be found ; unless the same should have been sold bona fide, and for a valuable consideration, to one not party to the fraud, before such seizure. The distress may be made by the landlord himself, or he may empower any in- dividual to make it as his baiUff. The agency of a constable, or other peace officer, is not necessary till the time when the goods are to be appraised. The whole rent due ought to be distrained for at once ; and not a part at one time and a part at another ; but if a distress made for the whole turns out to be insuffi- cient, either from the circumstance of not finding a sufficient distress on the premises, or mistaking the value of the property seized, a second distress may be made, to supply the deficiency. A distress must be made for the precise sum due, and the landlord cannot add interest to the arrears of the rent. Yet in an action of covenant for rent, the jury are at liberty to give interest, as they may upon an open account, where, by the usual course of dealing, or by express agreement, a certain time is fixed for payment. Notice of the taking, with the cause of the distress, must (at the time of making it) be left at the mansion house, or other most notorious part of the premises charged with the rent ; and if the owner of the goods shall not replevy the same, within five days, the persons distraining may, with the assistance of a sheriff or constable, cause the distress to be appraised, by two reputable freeholders ; and such sheriff or constable may, after six days' public notice, sell the same for the best price that can be gotten therefor ; and if there be any overplus after satisfying the rent, and the charges of the distress, appraisement, and sale, the same shall remain in the sheriff's or constable's hands, for the owner's use. If distress be made, when no rent is in arrear, the tenant shall recover in damages double the value of the goods distrained, and full costs. If a distress be excessive, the remedy is by special action on the statute of Marie- bridge. If a distress be driven out of the county, the party grieved shall have a suit founded on the statute of 1 & 2 P. & M. to recover the penalty. By the act of June 16, 1836, purchasers at sheriff^s sales, after receiving a deed> shall be considered as landlords of tenants holding, under the defendants in the exe- cution. A TABLE OF THE STATUTES. 577 4 Edward 3, Cap. 2. A. D. 1330. 77»e authority of justices of assize,, jail delivery, and of the peace. And the justices assigned to deliver the jails shall have power to deliver the same jails of those that shall be indicted before the keepers of the peace ; and that the said keepers shall send their indictments before the justices, and they shall have power to inquire of sheriiTs, jailers, and others, in whose ward such indicted persons shall be, if they make deliverance, or let to mainprise any so indicted, which be not mainpernable, and to punish the said sheriffs, jailers, and others, if they do any thing against this act. 3mi\tm of t&e 3?eace» 34 Edward 3, Cap. 1. A. D. 1360. What sort of persons shall be justices of the peace; and what authority they shall have. First, That in every county of England shall be assigned for the keeping of the peace, one Lord, and with him three or four of the most worthy in the county with some learned in the law, and they shall have power to restrain the offenders^ rioters, and aE other barrators, and to pursue, arrest, take, and chastise them according to their, trespass or offence ; and to cause them to be imprisoned and duly punished according to the law, and customs of the reahn, and according to that- which to them shall seem best to do by their discretions and- good advisements, and also to inform ■ them, and to inquire of aU those that have been pillors and robbers in the parts beyond the sea, and be now come again, and go wandering and will not labour as they were wont in times past, and to take and arrest all those that they may find by indictment, or by suspicion, and to put them in prison ; and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the king and his people, and the other duly to punish, to the intent that the people be not by such rioters or rebels troubled or endangered, nor the peace blemished, nor merchants, nor other passing by the highways of the teahaa disturbed, nor put in the peril which may happen of such offenders. And that fines, which are to be made before justices for a trespass done by any person, be reasonable and just, having regard to the quantity of the trespass, and the causes for which they be made. REPORTED BY THE JUDGES OF THE SUPREME COURT TO BE IN FORCE IN PENNSYL- VANIA. Magna Charta, 9 Hen. 3, cap. 7. Dower. That part only of this statute is in force which provides that a widow shall tarry in the chief house of her husband forty d^ys after her husband's death, within which days her dower shall be assigned her. Stat, of Merton, cap. 34. Appeal. 30 H«n. 3, cap. 1. Dower. « u a u I, 2. Estate for Life, » " « It i( 3_ Disseisin, &c. U U U tl u Q^ Bastard. 2m Stat, of Marlebridge, 52 Hen .3, cap. 4. « 8. " 13. " 15, ] " 17. < " 23. . " 29. ] Stat, of Westminster I., 3Edw. 1, cap. 9. a (4 ti a " 15. 578 A TABLE OF THE STATUTES. Stat, de Anno et Die Bisextili, 21 Hen. 3. Estates for Life, &c. Distress. Disseisin. Essoin. Distress. Guardian. Account. Disseisin. Hue and Cry. Bail. « « " « " 40. Voucher to Warranty. " " " " " 42. Essoin. « " " " " 43. Essoin. " « " " " 44. Essoin. " « " " " 47. Infancy and Age. The whole of this statute is in force, except those parts which relate to prelates, men of religion, and writs of attaint. Stat, of Westminster I., 3 Edw. 1, cap. 49. Dower. " " 4 Edw. 1, Stat. 2. Coroner. This statute is in force, ex- cept those parts which relate to the coroner's duty in the following points, viz. : making inquiry as to the property of any person, or seizing the property of any person ; treasure that is found ; appeal of rape or of wounds, or any other appeals ; deodands ; and wrecks of the sea ; and also except that part which provides that land shall remain in the king's hands, until the lords of the fee have made fine for it. Stat, of Gloucester, 6 Edw. 1, cap. 1. Damages and Costs. The whole of this statute is in force, except that part which relates to waste in the time of ward- ship, which is not appUcahle to this country. Stat, of Gloucester, 6 Edw. 1, cap. 2. Infancy and Age. " " " " " 3. Estates for Life. " " " " " 5. Waste. " " " " " 6. Disseisin, &c. " " " " " 9. Appeal. " " « " " 10. Essoin. " " " " " 13. Waste. " " 7 Edw. 1, Stat. 2. Mortmain. Stat, of Westminster II., 13 Edw. 1, cap. 1. Estate Tail. This statute is in force, except such part as has been altered by an act of Assembly passed 27th Janu- ary, 1749 — old style — entitled "An act for barring estates tail," and another act, passed 16th January, 1799, entitled "An act to facilitate the barring of entails." Stat, of Westminster, 13 Edw. 1, stat. 1, cap. 3. Disseisin, &c. This statute is in force, except that part which relates to proceedings in a writ of right. Stat, of Westminster, 13 Edw. 1, stat. 1, cap. 4. Dower. " " " " " " 6. Voucher to Warranty. " '• " " " " 7. Dower. " " " " " 11. Account. " « " " " " 12. Appeal. " " " " " " 14. Waste. " " " " " 15. Infancy and Age. " " " " " " 17. Essoin. « " " " " 20. Disseisin, &c. " " " " " " 22. Waste. " " " " " " 23. Account. " " " " " " 24. Disseisin, &c. This statute is in force, except those parts which relate to ecclesiastical persons. Stat, of Westminster, 13 Edw. 1, stat. 1, cap. 25. Disseisin, &c. This statute is in force, except that part which gives the remedy by assize in cases of keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks and offices in fee. Also, that part which gives an immediate remedy by assize, in case A TABLE OF THE STATUTES. 579 any person holding land for term of years aliens the same in fee, and by such alienation the freehold is transferred to the feoffee. Also, that part which authorizes the sheriff to take an ox for his fee. Stat, of Westminster, 13 Edw. 1, stat. 1, cap. 26. Disseisin, &c. « « " -" " " 27. Essoin. " " " « " " 28. Essoin. " " " " " " 30. Jury. The following parts only of this statute are in force. Sect., 2. And when such inquests be taken, they shall be returned unto the bench and there shall judgment be given, and there they shall be enrolled. The justices of Nisi Frius shall have clerks to enroll all pleas pleaded before them. The said judges shall not compel the jurors to say, precisely, whether it be a disseisin or not, so that they show the truth of' the deed, and require aid of the said justices. But if they of their own head will say that it is a disseisin, their verdict shall be admitted at their own peril. Stat, of Westminster, 13 Edw. 1, stat. 1, cap. 31. Bill of Exceptions. " •' " " " « 32. Mortmain. « " " " " " 34. Dower. That part only of this statute is in force which enacts that, " if a wife willingly leave her husband, go away and continue with her advoutrer, she shall be barred for ever of action to demand her dower that she ought to have of her husband's lands if she be convicted thereupon, except that her husband wilhngly reconcile her to dwell with him, in which case she shall be restored to her action. Stat, of Westminster, 13 Edw. 1, stat. 1, cap. 39. Sheriff. Those parts only of this statute are in force which ddfine " what shall be accounted issues ;" direct the punishment of the sheriff for false returns ; give authority to the sheriff to do certain things in case of resistance of the execution of process, and direct the punishment of those who resist the execution of process. Stat, of Westminster, 13 Edw. 1, stat. 1, cap. 40. Infancy and Age. " " " " " " 45. Execution. " « 18 Edw. 1, stat. 1, cap. 3. Mortmain. " " " " « duo Warranto. " " " " " 3. Q,uo Warranto. " " " " " 4. Fines. " " 20 Edw. 1, stat. 1. Voucher to Warranty. " " " 2. Waste. " " « " « 3. Voucher. " " 27 Edw. 1, stat. 1, cap. 1. Fines. " " 28 Edw. 1, stat. 2. Appeal. " " " " « 3, cap. 16. Sheriff. " " 33 Edw. 1, stat. 2. Conspiracy. That part only of this sta- tute is in force which relates to " conspirators," and from that part is to be excepted what relates to " Stewards and BaiUffs of great lords." Stat, of Westminster, 33 Edw. 1, stat. 3. Conspiracy. That part only of this sta- tute is in force which relates to conspirators. Stat, of Westminster, 33 Edw. 1, stat. 4. Jury. " " " " " 6. Land. " 34 Edw. 1, stat. 1. Disseisin, &c. Stat, of York, 12 Edw. 2, stat. 1, cap. 1. Disseisin, &c. This statute is in force, except those parts which relate to writs of "Juris utrum" and "Indicavit." Stat, of York, 12 Edw. 2, stat. 1, cap. 4. Nisi Prius. Only those parts of this statute are in force which are distinguished by the numbers 1, 2, and 6. Stat, of York, 12 Edw. 2, stat. 1, cap. 5. Sheriff. That part only of this statute is in force which obliges sheriffs and other ofEcers to sign their names to the return of writs. Stat, of York, 12 Edw. 2, stat. 2. Essoins. " " 15 Edw. 2. Fines. This statute is in force, except that part which relates to the "admission of attorneys." Stat, of Northampton, 2 Ed. 3, cap. 16. Nisi Prius. " " " 17. Writ of Deceit. 580 A TABLE OF THE STATUTES. Stat, of Northampton, 4 Ed. 3, cap. 2. Jail Delivery. Only those parts of this statute are in force, which are distinguished by the numbers 6 & 7. Stat, of Northampton, 4 Ed. 3, cap. 7. Execrs. and Adminrs. " " 5 Ed. 3, cap. 10. Jury. " " 14 Ed. 3, Stat. 1, cap. 6. Amendment. » II u u 11 " 16. Nisi Prius. That part only of this statute is in force, which enacts, that "the justices of Nisi Prius shall have power to give judgment on verdicts of assize, and upon nonsuits and de- faults, and return the same to the court in bank." Stat. of-Northampton, 14 Ed. 3, stat. 1, cap. 18. Voucher to Warranty. » « 25 Ed. 3, stat. 2. Ahen. Only that part of this statute is in force which is distinguished by the number 5. Stat, of Northamptoh, 25 Ed. 3, stat. 5, cap. 3. Jury. That part only of this sta- tute is in force, which gives an inquest de medietate lingual. Stat, of Northampton, 25 Ed. 3, stat. 5, cap. 5. Execrs. and Adminrs. 11 " " " " 5, cap. 16. Pleas and Pleading. « " 28 Ed. 3, cap. 13. Jury. « » 31 Ed. 3, stat. 1, cap. 11. Execrs. and Adminrs. This stat. is in force, except that part which relates to expending money for the sou] of the deceased. Stat, of Northampton, 34 Ed. 3, cap. 1. Justice of the peace. Those parts only of this statute are in force, which are distinguished by the numbers 2, 3, 4, 5, 6, and 10. Stat, of Northampton, 34 Ed. 3, cap. 8. Jury. " " " " " 16. Fines. " ' 38 Ed. 3, stat. 1, cap. 12. Jury. 50 Ed. 3, cap. 6. Fraud. " " 1 Rich. 2, cap. 9. See Appendix. This statute is in force, except such parts as are altered by the statutes of 4th of Henry 4, chap. 7, 11th of Henry 6, chap. 3, 4th of Henry 7, chap. 24, and 27th of Henry 5, chap. 10. Stat, of Northampton, 1 Rich. 2, cap. 12. Sheriff. This statute is in force, except such parts as relate to confessions of debts to the king. Stat, of Northampton, |C7°5 Rich. 2, cap. 8. Forcible Entry. " " 6 Rich. 2, stat. Leap. 3. Disseisin, &c. So much of this statute is in force, as gives the plaintiff an election to have a writ of Nuisance in nature of an assize. Stat, of Northampton, 8 Rich. 2, cap. 4. Records. " " 9 Rich. 2, cap. 3. Estates for life. So much only of this statute is in force, as gives a writ of error to him in reversion. Stat, of Northampton, 13 Rich. 2, stat. 1, cap. 17. Estates for hfe. " " 15 Rich. 2, cap. 2. Forcible Entry. So much only of this statute IS in force, as relates to forcible entry and detainer, or either of them. Stat, of Northampton, 15 Rich. 2, cap. 5. Mortmain. " " 2 Hen. 4, cap. 7. Trial. " " 4 Hen. 4, cap. 7. Disseisin, &c. " " 5 Hen. 4, cap. 14. Fines. That part only of this statute is in force, which directs that all the writs of covenant, and all other writs whereupon fines shall be levied, with the writs of dedimus potestatem, if any, with all knowledges and notes of the same, shall be enrolled in a roll, to be of record for ever. Stat, of Northampton, 1 Hen. 5, cap. 5. Pleas and Pleading. So much of this statute is in force as requires an' addition of the defendant's estate, or degree or mystery, and of the county in which the defendant is, or in which he is conversant. Stat, of Northampton, 9 Hen. 5, cap. 4. Amendment. " " 4 Hen. 6, cap. 3. Amendment. ' " 8 Hen. 6, cap. 9. Forcible entry. " " " " 12. Amendment. Only the 1st and 2nd sec- tions of this statute are in force. A TABLE OP THE STATUTES; 581 Stat, of Northampton, 8 Hen. 6, cap. 15. Amendment. k( (( tt li it 29. Trial. .« 1 Hen. 6, cap. 2. Disseisin, &c. Disseisin, &c. » t( t( ti ti - 3, ki (( (( « it 5. Waste. a "JC?°23 Hen. 6, cap. 9. Bail. ti " 1 Rich. 3, cap. 7. Fines. This statute is in force, except such parts as are altered by the statute of the 31st of EKzaheth, chap. 2d. ^ Stat, of Northampton, 3 Hen. 7, cap. 1. Coroner. Only those parts of this sta- tute are in force, which are distinguished by the numbers from 6 to 19, both inclusive, and by the number 26. Stat, of Northampton, 3 Hen. 7, cap. 3. Sheriff. Only that part of this statute is in force, which is distinguished by the number 5. Stat, of Northampton, 3 Hen. 7, cap. 4. Fraud. " " " 10. Damages and Costs. 4 Hen. 7, cap. 20. Popular Actions. " " " 24. Fines. 11 Hen. 7, cap. 12. Damages and Costs. « " " 20. Estates for Life. 19 Hen. 7, cap. 20. Damages and Costs. 5 Hen. 8, cap. 6. Jury. So much only of this statute is in force as discharges surgeons from service on juries. Stat, of Northampton, 7 Hen. 8, cap. 4. Damages and Costs. This statute is in force, except those parts which relate, to writs of qiiare impedit and advow- sons. Stat, of Northampton, 21 Hen. 8, cap. 3. Disseisin, &c. " " " " " 5. Execrs. and Adminrs. That part only of this statute is in force, which relates to the persons to whom administration is to be granted. Stat, of Northampton, 21 Hen. 8, cap. 7. Larceny. This statute, after having been repealed, was revived by the statute of 5 Ehzabeth, chap. 10. Stat, of Northampton, 21 Hen. 8, cap. 15. Estates for Life. " " 23 Hen. 8, cap. 10. Mortmain. " " " " " 15. Damages and Costs. " " 24 Hen. 8, cap. 8. Damages and Costs. " " 27 Hen. 8, cap. 10. Uses and Trusts. Only the 1st, 2d, 3d, 4th, 5tn, 6th, 7th, 9th, and 10th sections of this statute are in force. Stat, of Northampton, 31 Hen. 8, cap. 1. Estates for Life. " ' " 32 Hen. 8, cap. 5. Execution. " ' " « " 28. Estate for Life. " " " " " 30. Amendment. " " " 32. Estate for Life. " " " " " 33. Disseisin. " " " " " 34. Estate for Life. This statute is in force, except such parts as relate to the king of England and his grantees. Stat, of Northampton, 32 Hen. 8, cap. 36. Fines. This statute is in force, except the 3d and 4th sections. Stat, of Northampton, 32 Hen. 8, cap. 37. Execrs. and Adminrs. This statute is in force, except the second section. Stat, of Northampton, 37 Hen. 8, cap. 8. Indictment. 2 & 3 Ed. 6, cap. 24. Trial. " 1 Mary, sess. 2, cap. 7. Fines. " 1 & 2 P. & M. cap. 12. Distress. Only the 1st section of this statute is in force. Stat, of Northampton, 1 & 2 P. & M. cap. 13.. Bail. The 2d, 3d, 4th, and 5th sections only are in force. Stat, of Northampton, 2 & 3 P. & M. cap. 10. Bail. " " 5 Ehzabeth, cap. 9. Perjury. This statute is in force, except the 10th, 11th, 12th, and 13th sections, which are inapplicable to this 582 A TABLE OF THE STATUTES. commonwealth, and except the punishment by imprisonment, and paying of money, which is altered by our act of Assembly for reforming the penal laws. Stat, of Northampton, 8 Elizabeth, cap. ,2. Damages and Costs. Only the 1st. 2d, 4th, and 5th sections of this statute are in force. Stat, of Northampton, 13 Elizabeth, cap. 5. Fraud. " " 14 Elizabeth, cap. 8. Estate for Life. " " 18 Ehzabeth, cap. 14. Amendment. This statute is in force, except the 3d section. Stat, of Northampton, 23 Elizabeth, cap. 3. Fines. This statute is in force, except the 6th, 7th, 8th, 9th, and 10th sections. Stat, of Northampton, 27 Elizabeth, cap. 4. Fraud. This statute is in force, except the 7th, 8th, 9th, 10th, 11th, and 12th sections. Stat, of Northampton, 27 Elizabeth, cap. 5. Pleas and Pleadings. ' " 31 Ehzabeth, cap. 2. Fines. ' " " " " 11. Forcible Entry. ' " 43 Ehzabeth, cap. 8. Executor and Administrator. ' " 3 James 1, cap. 8. Execution. ' « 4 James 1, cap. 3. Damages and Costs. " 21 James 1, cap. 13. Amendment. ■ " " " 15. Forcible Entry. ' " " " 24. Execution. • " 12 Charles 2, cap. 24. Guardian. Only the 8th and 9th sec- tions of this statute are in force. Stat, of Northampton, 13 Charles 2, stat. 2, cap. 2. Damages and Costs. ' This sta- tute is in force, except certain parts, which have a local object, and are, there- fore, inapphcable to this commonwealth ; and certain other parts, which are al- tered by our acts of Assembly, or the practice of our courts. Stat, of Northampton, 16 & 17 Charles 2, cap. 8. Amendment. This statute is in force, subject to the same exceptions as were mentioned with relation to the sta- tute of 13th Charles 2, stat. 2, chap. 2. Stat, of Northampton, 17 Charles 2, cap. 8. Pleas and Pleadings. " " 19 Charles 2, cap. 0. Estate for Life. " " |C3°'29 Charles 2, cap. 3. Frauds. " " 22 & 23 Charles 2, cap. 9. Damages and Costs. All that is unex- pired of this statute, that is to say, the 136th section, " for prevention of trivial and vexatious suits in law," is in force. Stat, of Northampton, 30 Charles 2, cap. 7. Executor and Administrator. " 4&5W.&M. cap.2l. Pleas and Pleadings. " " IC?" " " " 24. Executor dnd Administrator. " " 8& 9 William 3, cap. 11. Damages and Cos.ts. " " 9 & 10 William 3, cap. 15. Arbitration. " " 10& 11 William 3, cap. 16. Infancy and Age. " 11 & 12 Williams, cap. 6. Atgn. " " 3 & 4 Anne, cap. 9. Promissory Notes. The 1st, 3d, 4th, and 8th sections of this statute are in force. Stat, of Northampton, 4 Anne, 9, cap. 16. Amendment. The first 13 sections, and the 20th and 27th sections of this statute are in force. Stat, of Northampton, |C?"7 Anne, cap. 5. Ahen. " " 5 George 1, cap. 13. Amendment. " 7 George 2, cap. 20. Mortgage. The 1st and 3d sections of this statute are in force. Stat, of Northampton, 11 George 2, cap. 19. Estate for Life. The 14th and 15th sections of this statute are in force. The index (|C/") denotes the statutes which are not contained in the report of the judges. The notes which are added to some of the titles, are those which ac- companied the report of the judges, designating such parts of th( statute as are in force in Pennsylvania. JUDICIAL DECISIONS. 683 Juifcfal Hfrtsfons, toucMna EnaUsii statutes. British Statutes may be in force in Pennsylvania, by usacfe. 1 D. 67. MKean, C.J. The statute of 13 Edw. 1, c. 18, [Westminister, 2,] has never been in force in, Pennsylvania. 1 Wh. 337. ( The statute of 28 Edw. 3, c. 13, is in force in Pennsylvania. 1 D. 73. Oyer and Terminer. Philadelphia, May, 1822. MS. i The statute 23 Hen. 6, c. 9, though not reported by the judges, has been consi- dered in force in Pennsylvania. 8 JF. 389. Sergeant, J^ The statute of hmitations, 32 Hen. 8, c. 2, extended to Pennsylvania. 1 ZJ. 15. 1 D. 64. The statute of quia emptores, 18 Edw. st. 1, c. 1, never was in force in Penn- sylvania. 1 Wh. 337. The statute of 32 Hen. 8, c. 9, is not in force in Pennsylvania. 1 B. 69. The statute 43 Eliz. c. 4, relating to charitable uses, has not been extended to this state, but its principles have been adopted by the courts. 17 S. fy R. 88. The statute 17 Car. 2, c. 7, regulating proceedings upon distresses and avowries for rent, was recognised as in force in Pennsylvania. 4 Y. 264. 1 dsh. 58. The statutes of frauds and perjuries, 29 Car. 2, c. 3, do not extend to Pennsyl- vania. I jD. 1. The statute of limitations, 21 Jac. 1, c. 16, extended to Pennsylvania. 1 D. 20. 1 Z). 67. The statute 8 & 9 W; 3, c. 31, does not extend to Pennsylvania.' 2 Binn. 1. There is no trace of the extension of the statute 4 & 5 Anne, c. 16, to Pennsylva- nia by legislative authority or judicial practice. 4 B. 168. 2 Y. 509. The statute 4 Geo. 2, c. 28, sect. 2, providing that, where land is vacant, fixing a declaration in ejectment in some notorious place on the land shall stand in the place of a demand and re-entry, does not' extend to Pennsylvania. Q S. Sf R. 151. The statute of 21- Hen. 3, has no relation to the computation of time where a rule or a statute fixes a certain number of days. 4 JBarr, 5l7. 584 GENERAL ELECTION LAWS, QStntxnl muttion aaios. 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 under- stand 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. I. Of the election of inspectors of the gene- ral election. II. Relating to the general election. III. Election of members of Congress. IV. Election of electors of President and Vice-President. V. Elections to supply vacancies. VI. Of elections when volunteers, &c., are in actual service. Vn. Elections for township officers. VIII. General provisions. IX. Of the trial of contested elections. X. Of elections by the legislature. ^ct of July 2, 1839. Purd. 370. Bunl. 867. I. Of the Election of Inspectors of the General Election. Sect. I. 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 holding such election. Sect. II. In case of the neglect, refusal, death, or absence from the county, of the f^onstable or constables, of any township, ward, or district, the supervisors of the town- ship or district, or the assessors of the ward, as the case may be, shall perform the duties herein-before required to be done by such constable or constables, under the like penalty. Provided, That the said supervisors or assessors shall not be required to give more than five days' notice of the time and place for holding such election. Sect. III. 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 herein-after provided, two inspectors and one judge of elections. Sect. IV. 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 num- ber of votes for judge shall be publicly declared to be elected judge ; and the two per- sons having the greatest number of votes for inspectors, shall, in like manner, be declared to be elected inspectors of elections. Sect. V. The elections, as aforesaid, shall be opened between the hours of eight and ten o'clock, in the forenoon, by a public proclamation thereof, made by the officers appointed to hold the same, and be kept open until seven o'clock, except in the city and county of Philadelphia, where it shall be kept open until ten o'clock in the after- noon, when the polls shall be closed, the number of votes be forthwith ascertained, and the person highest in votes publicly declared to be elected. [Purd. 394.] (1) Sect. VI. 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. (I) By act of 38th April, 18S1, the polls, in the city and incorporated districts of the county of Philadelphia, shall be opened at or before eight o'clock in the morning, and shall be closed at seven o'clock in the evening. Pamph. 725. GENERAL ELECTION LAWS. 585 Sect. VII. Where any township has been, or shall be, divided in forming in 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 sixth sectio'H of this act. IL Provisions Relating to the General Elections. Sect, XIIL It shall be the duty of the sheriff of every county to give notice of' the general elections, by advertisements ^posted up in the most public places in every election district, or by publication in one or more newspapers of the county,, at least twenty days before the election, and in every such advertisement he shall— Mrst, Enumerate the officers to be elected. Second, Designate the place at which the election is to be held. TTtird, 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 commissioned 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 States, 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 commissioners of any incorporated district, is by law incapable of holding, or exercising, at the same time, the office or appoint- ment 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. Sect. XIV. 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 herein-after provided. Sect. XV. 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 nme o'clock in the morning of the second Tuesday of October, in each and every year, and each of said inspectors shall appoint one clerk, who shall be a qualified voter of such district. Sect. XVI. 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 re- ceived 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 the opening of the election, the qualified voters of the township, wa^d^ or district, for which such officer shall have been elected, present at the place of election, shall elect one of their number to fill such vacancy. (2) Sect. XVII. In case any clerk, appointed under the provisions of this act, shalE' neglect to attend at any election during the said year, it shall be the duty of the- inspector who appointed said clerk, (or of the person filling the place of such in- spector,) to forthwith appoint a suitable person as clerk, qualified as aforesaid,- who shall perform said duties for the year. Sect. XVIII. The inspectors, judges, and clerks aforesaid shall, before enter-^ (2) Where an election judge appointed a person inspector, in the place of the one who received i the highest number of votes, he being absent; and the judge subsequently removed from the- ward : held, that the inspector so appointed had power to make an appointment to fill the vacancy/ in the office of judge. Case of Ptnn District, Com. PI., Phila., Dec. T., 1847. 586 GENERAL ELECTION LAWS. ing on the duties of their offices, severally take and subscribe the oath or affirma- tion herein-after 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 administer the oath or affirmation to the other judge and inspector, and then the inspector so qualified shall administer the oath or affirmation to him. Sect. XIX. The following shall be the form of the oath or affirmation to be taken by each inspector, viz. : " I, (A. B.,) do that I will 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 virill I vexatiously delay or refuse to receive any vote from any person who I shall believe to be entitled to vote as aforesaid, but that I will in aU things truly, impartially and faithfully perform my duty therein, to the best of my judg- ment and abilities, and that I am not directly, nor indirectly, interested in any bet or wager on the. result of this election." Sect. XX. 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 to carry 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 pro- visions of the Constitution and laws of this commonwealth, 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 endeavours to prevent any fraud, deceit, or abuse, in carrying on the same by citizens qualified to vote, or others, and that I will 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 I am not directly or indirectly interested in any bet or wager on the result of this election." Sect. XXI. The following shall be the form of the oath or affirmation to be taken by each clerk, viz. : " I, (A. B.,) do that I will impartially and truly write down the name of each elector who shall vote at the ensuing 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 candidate at the election, as often as his name shall be read to me 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." Sect. XXII. 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 seve- rally 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. III. Election of Members of the House of Representatives of the United States. Sect. XXIII. The election of representatives of the people of this commonwealth, in the Congress of the United Slates, shall take place on the second Tuesday in Octo- ' ber, in the year one thousand eight hundred and forty, and on the second Tuesday in October, in every second year thereafter, at the places appointed by law for hold- ing the general elections. Sect. XXIV. It shall be the duty of the sheriffs of the several counties, to give no- tice of such election, in the manner herein-before required in the case of the general elections. Sect. XXV. It shall be the duty of the governor, on the receipt of the returns of the election of members of the House of Representatives of the United States, as afore- GENERAL ELECTION LAWS. 587 said, by the secretary of the commonwealth, to declare, by proclamation, the names of the persons so returned as elected in the respective districts, and he shall also, as soon as conveniently may be thereafter, transmit the returns so made to the House of Representatives of the United States. IV. Elections of Electors of President and Vice-President of the United States. Sect. XXVI. The citizens of this commonwealth, qualified as is herein provided shall, at their several places of election, on the [Tuesdaynext after the first Monday in jyovember,] in the year one thousand eight hundred and forty, and on the same [Tuesday] in every fourth year thereafter, elect a sufficient number of persons to be electors of a president and vice-president of the United States. [Dunl. 1121.] Sect. XXVII. It shall be the duty of the sheriffs of the respective counties, to give Kke notice of such election as is herein-before required of the election of members of the General Assembly. Sect. XXVIII. At every such election every qualified citizen shall be entitled to vote, by delivering to the proper ofScer a written or printed ticket, . containing the names of a number of persons equal to the whole number of senators and represen- tatives, to which this state may be entitled in the Congress of the, United States. Sect. XXIX. It shall be the duty of the secretary of the commonwealth, on receiv- ing the returns of the election of electors, as hereinafter directed, to lay them before the governor, who shall enumerate and ascertain the number of votes given for each person so voted for, and shall thereupon declare, by proclamajtion, the names of the persons duly elected, and shall cause a notification of ' his election to be delivered to each person so chosen, on or before the last Wednesday in the month of November next after such election. Sect. XXX. The electors chosen, as aforesaid, shall assemble at the seat of govern- ment of this commonwealth, at twelve o'clock of the day which is or may be directed by the Congress of the United States, and shall then and there perform the duties enjoined upon them by the Constitution and laws of the United States. Sect. XXXI, If any such elector shall die, or from any cause fail to attend at the seat of govemmeiit at the time appointed by law, the electors present shall proceed to choose viva voce a person to fill the vacancy occasioned thereby, and immediately after such choice, the name of the person so chosen shall be tremsmitted by the pre- siding officer of the college to the governor, whose duty it shall be forthwith to cause notice in writing to be given to such person of his election, aiid the person so elected (and not the person in whose place he shall have been chosen) shall be an elector, and shall, with the other electors, perform the duties enjoined on them, as aforesaid. Sect. XXXII. Every elector aforesaid shall receive from the state treasury the 'sum of three dollars for every day spent in travelling to, remaining at, and returning from, the place of meeting aforesaid ; and the contingent expenses of the electoral col- lege, not exceeding fifty dollars in amount, shall likewise be paid by the state trea- surer, in both cases upon warrants drawii by the presiding officer of the college. Sect. XXXIII. In the event of an election of president and vice-president taking place at any other period than that mentioned in this act, the election of electors shall, in all respects, be held, conducted, and concluded, as is herein-before provided. ^ V. Elections to supply Vacancies. 1st. In the office of Governor. Sect. XXXIV. In case any vacancy shall occur in the office of governor of this commonwealth, more than three calendar months next preceding the second Tuesdiay in October, in any year, it shall be the duty of the speaker of the Senate, or whoever shall be' in the exercise of the office of governor, to issue his writs to the sheriffs of the several counties, requiring them to give the usual notice that an election to sup- ply such vacancy, will take place on the second Tuesday in October next thereafter ; and when such vacancy occurs within three calendar months before the second , Tuesday in October, it shall be the duty of the speaker of the Senate, or whoever shall be in the exercise of the office of governor, to issue his writs as aforesaid, requiring notice of such election on the second Tuesday in October, next after the 588 GENERAL ELECTION LAWS. issuing of said Avrit, and in each case such writ shall issue at least three calendar months before the election. 2d. In the Legislature of the Commonwealth. Sect. XXXV. Every writ which shall be issued by the speaker of either house of the legislature, in pursuance of the Constitution of this commonwealth, to supply a vacancy in such house, shall be directed to the sheriff or sheriffs of the proper county or counties, as the case may be, and shall particularly express the day on which the election shall be held to supply such vacancy. If such writ shall be issued by the speaker of the Senate during the recess of the legislature, he shall, except as is hereinafter provided, direct the election to be held at the time appointed for holding the general elections. Sect. XXXVI. If such vacancy shall happen during the session of the legislature, or if the members shall be required by their own adjournment, or by the governor, to meet at some time previous to the next general election, the speaker issuing the writ shall appoint a time as early as may be convenient, not exceeding thirty days thereafter, for holding such election. But if the return of such election cannot be made before the time appointed for the adjournment of the legislature, such writ shall not be issued, or, if issued, shall, in the case of a vacancy in the House of Re- presentatives, be countermanded, and in case of a vacancy in the Senate, shall, by another writ, issued as aforesaid, be extended until the next general election. Sect. XXXVII. If, after a writ shall have been issued, directingthe election to fill such vacancy to take place on the day of the general election, or countermanding a previous writ, as aforesaid, the governor shall issue his proclamation for convening the legislature, the sheriff to whom such writ shall be directed, shall give notice as is hereinafter provided, of an election to be held within thirty days after the date of such proclamation. Sect. XXXVHI. Every writ for holding a special election, as aforesaid, shall be delivered to the sheriff to whom the same shall be directed, at least fifteen days before the day appointed for such election, who shall forthwith give due and public notice thereof throughout the county, at least ten days before such election, and shall send a copy thereof to at least one of the inspectors of each election district therein. 3d. In the House of Representatives of the United States. Sect. XXXIX. Every writ which shall be issued by the governor of this common- wealth, in pursuance of the Constitution of the United States, to supply a vacancy in the representation of the people of this commonwealth in the House of Repre- sentatives of the United States, shall be directed to the sheriff of the county or coun- ties composing the congressional district, and shall particularly express the day on which the election shall be held to supply such vacancy. Sect. XL. If such vacancy shall happen during the session of Congress, or if Con- gress shall be required to meet at some time previous to the next general election, the governor shall appoint a time as early as may be convenient for holding such election, otherwise he shall direct the election to be held at the time appointed for holding the general elections. Sect. XLI. Every writ for holding a special election, as aforesaid, shall be deli- vered to the sheriff to whom the same may be directed, at least fifteen days before the day appointed for such election, who shall forthwith give due and pubhc notice thereof throughout the county, at least ten days before such election, and shall send a copy thereof to at least one of the inspectors of each election district therein. Sect. XLII. When the returns of any special election for a member of the House of Representatives of the United States, shall be received by the secretary of the commonwealth, the governor shall declare by proclamation the name of the person elected ; and he shall also, as soon as conveniently may be thereafter, transmit the returns so made to the House of Representatives of the United States. VI. Provisions in case any of the Militia or Volunteers shall be in actual SERVICE at the TIME OF THE GENERAL ELECTION. Sect. XLIII. Whenever any of the citizens of this commonwealth, qualified as GENERAL ELECTION LAWS. 589 herein-before provided, shall be in any actual military service in any detachment of the militia or corps of volunteers, under a requisition from the president of the United States, or by the authority of this commonwealth, on the day of the general election, as aforesaid, such citizens may exercise the right of suffrage at such place as may be appointed by the commanding officer of the troop or company, to which they shall respectively belong, as fully as if they were present at the usual place of elec- tion : Provided, that no member of any such troop or company shall be permitted to vote at the place so appointed, if, at the time of such election, he shall be within ten miles of the place at which he would be entitled to vote, if not in service as aforesaid. Sect. XLIV. The proceedings for conducting such elections shall be, as far as practicable, in all respects the same as are herein directed in the case of general elec- tions, except that the captain or commanding officer of each company or troop shall act as judge, and that the first lieutenant, or officer second in command, shall act as inspector at such election, so far as shall relate to such company or troop ; and in case of the neglect or refusal of such officers, or either of them, to serve in such ca- pacity, the officer or officers next in command, in such company or troop, shall act as judge or inspector, as the case may be. Sect. XLV. The officer authorized to perform the duties of judge shall administei the proper oath or affirmation to the officer who shall act as inspector, and as soon as such officer shall have been sworn or affirmed, he shall administer the proper oath or affirmation to the officer whose duty it shall be to act as judge, and such officer, acting as judge, shall appoint two persons to act as clerks, and shall administer to them the proper oaths or affirmations. Sect. XL VI. The several officers authorized to conduct such election, shall take the like oaths or affirmations, shall have the like powers, and they, as well as other persons who may attend, vote, or offer to vote, at such election, shall be subject to the like penalties and restrictions as are declared or provided in this act, in the case of election by the citizens at their usual places of election. Sect. XL VII. Within three days after such election, the judges thereof shall re- spectively transmit, through the nearest post-office, a return thereof, together with the tickets, tally-lists, and lists of voters, to the protbonotary of the county in which such electors would have voted, if not in military service. And the said judges shall transmit another return of such election to the commanding officer of the regiment or battalion, as the case may be, who shall make a general return, under his hand and seal, of the votes of all the companies or troops under his command, and shall transmit the same, through the nearest post-office, to the secretary of the common- wealth. Sect. XL VIII. It shall be the duty of the protbonotary of the county, to whom such returns shall be made, to deliver to the return judges of the same county a copy, certified under his hand and seal, of the return of votes so transmitted to him by the judgesof the election in the companies or troops aforesaid. Sect. XLIX. The return judges of the proper county or counties in which the volunteers or militia-men aforesaid may have resided at the time of being called into actual service as aforesaid, shall meet on the second Tuesday in November next after the election. And when two or more counties are connected in the election, the meeting of the judges from each county shall be postponed, in such case, until the Friday following the said second Tuesday in November. Sect. L. The return judges, so met, shall include in their enumeration the votes so returned, and thereupon shall proceed in all respects in the like manner as is pro- vided in this act, in cases where all the votes shall have been given at the usual place af election. VII. Of the Election or Township Officers. Sect. LI. Repealed. Sect. LII. Repealed. Sect. LIII. 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 as- sessors, on the third Friday in March of every year, except in the counties of Brad- ford, Susqueha,nna, Potter, M'Kean, Clearfield, Lycoming, Wayne, and Pike, the 590 GENERAL ELECTION LAWS. township elections of which shall be held on the third Friday in February of every year. SfecT. LIV. 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 dehvered to the saidpfficer or left at his usual place of abode within six days thereafter. Sect. LV. Repealed. Sect. LVI. It shall be lawful for the electors of any township, ward, or district, to change the place of holding the elections for inspectors and other officers of such township, ward, or district, in the manner following, to wit : First. On the requisition in writing of at least thirty of the electors of the town- ship, ward, or district, in case there are one hundred or more taxables in said town- ship, ward, or district, or of ten electors in case there are- less than one hundred taxables in said township, ward, or district, the constable shall give notice by at least ten printed or written handbills set up in the most public places within such township, ward, or district, at least fifteen days before the time appointed for the purpose, that a meeting of the electors of the township, ward, or district, as the case may be, will be held at the usual place of holding elections therein, at a certain day and hour to be appointed in such notice, for the purpose of determining upon the ex- pediency of changing the place of holding such elections. > Second. If at least fifty electors of the SEiid ward, district, or township, provided there be one hundred or more electors in said township, ward, or district, or twenty electors of said township, ward, or district, provided there be less than one hundred electors in said township, ward, or district, be present at the time appointed, the con- stable shall organize the meeting, and if at such meeting a majority of the electors present shall determine by ballot that it is expedient to change the place of holding such election, two certificates thereof and of the names of the qualified citizens vot- ing at such meeting shall be made out and signed by the officers of the meeting and attested by the constable, one of which shall be delivered by the constable to the town clerk, if there be one, and the other to the prothonotary of the court of -Com- mon Pleas of the county, to be filed in his office. Sect. LIX. 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 election, or such other matters in relation to the assessment of voters, as the said inspectors 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 re- sides and is entitled to vote. [Repealed as to Bradford, Wyoming, Tioga, Susque- hanna, Wayne, Montgomery and Clinton counties, by act of 9th April, 1844.] VIII. General provisions relating to Elections by the Citizens. Sect. LX. Repealed. Sect. LXI. Every general and special election shall be opened between the hours of eight and ten in the forenoon, and shall continue without interruption or adjourn- ment until seven o'clock in the evening, when the poDs shall be closed, except in the city and county of Philadelphia, the polls shall not be closed before ten o'clock in the evening. Sect. LXII. The inspectors shall be placed so as most conveniently to receive the tickets of the electors, and over or near to the door, window, or other place at which the tickets are received, the name of the township, ward, or district whose inspectors shall be there placed, shall be written or printed in legible characters, so that the electors may readily find the inspectors to whom their tickets are to be delivered. Sect. LXIII. No person shall be permitted to vote at any election, as aforesaid, other than a white freeman of the age of twenty-one years or more, who shaU have GENERAL ELECTION LAWS. 591 resided in this state at least one year, and in the election district where he offers to vote at least ten days immediately preceding such election, and within two years paid a state or county tax which shall have heen assessed at least ten days before the ejection. But a citizen of the United States, who has previously been a quali- fied voter of this state, and removed therefrom and returned, and who shall have resided in the election district and paid taxes, as aforesaid, shall be entitled to vote after residing in this state six months. Provided, That the white freemen, citizens of the United States, between the ages of twenty-onp and twenty-two years, and having resided in this state one year, and in the election district ten days, as afore- said, shall be entitled to vote, although they shall not have paid taxes. Sect. LXIV. Every person claiming a right to vote at any election, as aforesaid, shsJl, if required by either of the inspectors, make proof: First. That he is a natural born citizen of this commonwealth, or Second. That he was settled therein on the twenty-eighth of September, one thousand seven hundred and seventy-six, and has since continued to reside there- in, or ■ , Third. That having been a foreigner, who since that time came to settle there- in, he took an oath or affirmation of allegiance to the same on or before the twenty- sixth of March, Anno Domini, one thousand seven hundred and ninety, agreeably to the then existing constitution and lawSr and as evidence of any of the said facts the oath or affirmation of such person shall be sufficient, or Fourth, That he is a natural born citizen of some other of the United States, or had been lawfully admitted or recognised as a citizen thereof, on or before the twenty- sixth day of March, one thousand seven hundred and ninety, and as evidence there- of he shall, if required by any judge or inspector of the election, produce a certifi- cate in due form from some judge, prothonotary, or clerk of a court, mayor, alder- man, or justice of the peace, or shall be examined on his oath or affirmation, or Mfth. That having been an alien he has been naturalized conformably to the laws of the United States, and as the only evidence thereof he shall produce a cer- tificate 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 apphcation to vote, in which case the oath of such appHcant shall he prima facie evidence of naturalization. Sect. LXV. No person shall be admitted to vote whose name is not contained in the fist of taxable inhabitants furnished by the commissioners, as aforesaid, unless. First : He produce a receipt for the payment, within two years, of a state or county tax assessed agreeably 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 a tax, or on failure to produce a receipt, shall make oath to the payment there- of, or Second: 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 ad- mitted to vote shall be inserted in the alphabetical list by the inspectors, 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 Hke notes in the list of voters kept by them. Sect. LXVI. 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, 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 ten days next immediately preceding said election, and shall also himself swear that his bona fide residence, in pursuance of his lawful calhng, is within the district, and that he did not remove into said district for the purpose of voting therein. 592 GENERAL ELECTION LAWS. Sect. LXVIL 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. Sect. LXVIIL 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. Sect. LXIX. Every voter may deUver written or printed tickets as he shall see cause, but each ticket shall l»e on a separate piece of paper, folded so as to conceal the name of the person or persons voted for, and containing on the outside fold the designation of the office, and that only thus — there shall be contained in one ticket the name of a person for governor ; in one other ticket the name or names of a senator or senators ; in one other ticket the name or names of a member or members of the House of Representatives, and thus with respect to other offices, as the case may be. Sect. LXX. It shall be the duty of each inspector who shall receive the ticket of an elector, to call out aloud the name of such elector, which shall be entered by the clerks in separate lists, and the name shall be repeated by each of them, and the inspector shall insert the letter V in the margin of the alphabetical hst, opposite to the name of such elector, and if such elector shall have been sworn or affirmed, or produced a certificate or other evidence, as before provided, of having been natural- ized, the inspector shall also note the same in the margin of such list, and where proof of residence is made, shall also note the name of the person making such proof. Sect. LXXI. All tickets folded and endorsed as aforesaid, and personally deli- vered by the voter and none other, shall, by the respective inspectors, be deposited in separate boxes, according to the office designated on the back of the ticket, and shall there remain until the poll be closed. Sect. LXXII. When the poll shall be closed, the boxes wherein the tickets shall have been deposited shall be opened one by one, and the inspectors, in the presence of the judge, shall deliberately take out such tickets, and shall each read aloud the name or names written or printed thereon respectively, and the clerks shall each carefully enter, as read, each ticket as it is taken from the box, and keep account of the same on papers prepared for the purpose, so that the number of votes for each candidate tallied thereon may be readily cast up and known. Sect. LXXIII. If upon opening any ticket as aforesaid there be found any more names written or printed on any of them than there ought to be, or if any two or more such papers be deceitfully folded together, such tickets shall be rejected and not counted among the votes ; but no ticket shall be rejected by reason of its con- taining fewer names than the proper number. Sect. LXXIV. As soon as the election shall be finished, the tickets, list of tax- ables, 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 judge of the election, 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, taUy papers, and certificates, shall be enclosed 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 deli- vered into his ofRce within three days thereafter, where the same shall be filed. Sect. LXXV. As soon as all votes given for any office shall be read oiT and counted, the judge shall publicly declare the number of votes given for each person for such office, and the inspectors and judge of each election district shall make out a certificate under their hands and seals, setting forth, in words at length, the num- ber of votes given for the several persons voted for, and distinguishing the office or station in respect to which the votes were given. Sect. LXXVI. The said judge shall then take charge of the certificate aforesaid, and on the third day after the day of election shall produce the same at a meeting of one judge from each district within the same counter, at the court house of the GENERAL ELECTION LAWS. 593 said county ; and for the city and county of Philadelphia, at the state house in the said city, except where such judge by sickness or unavoidable accident is unable to attend, in which case one of the inspectors or clerks shall take charge of said certi- ficate and perform the duties required of said judge. Provided, That if ihe third day after the election shall be Sunday, the meeting shall be held on the Monday next following. Sect. LXXVIL When the qualified voters of more than one ward, township, or district, meet at the same place to hold their election, it shall be the duty of the respective judges of said election districts, in addition to the certificates required in the seventy-sixth section of this act, to make out a fair statement and certificate of all the votes which shall have been then and there given for each candidate, distin- guishing the office or station which he shall have been voted for ; and one of said judges shall take charge of said certificate, and, also, of the several certificates made out for each election district, as before directed, and produce the same at a meeting of all the judges in the county, in the manner prescribed in the seventy-eighth sec- tion of this act. Sect. LXXVIIL The judges of the several election districts, in each county, being so met, shall select one of their number to act as president of the board ; and, . also, select two suitable qualified electors of the county, either members of the board or otherwise, to act as clerks, who, before entering on their duties, shall be severally sworn or affirmed to perform the duties of their office with honesty and fidehty ; and on the board being so formed it shall be the duty of the several return judges to dehver the certificates of election, in their respective districts, to the president of said board, who shall cause the clerks, in presence of said board, to add together the number of votes, which shall appear, by said certificates, to have been given for any person or persons, in respect to each office or station; and said clerks, when not- return judges, shall be allowed two dollars per day, in fuU for their services, and when return judges, fifty cents, in addition to the pay allowed by law as judges, which, in either case, shall be paid out of the county treasury, on a certificate to the commissioners of the proper county, signed by the president of the board. Sect. LXXIX. The clerks sha:ll, thereupon, in presence of the judges, make out returns in the manner herein-after 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 certificates under the seventy-sixth and seventy-seventh 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 com- puted in adding together the number of votes, in which case, it shall be the duty of said clerks to make out a 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. First. Duplicate returns of all 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 district. Second. Like returns of all the votes given in the county for every person voted for as governor. TTiird. Triplicate returns of all the votes given for any person voted for in the county, as electors of president and vice-president of the United States. Sect. LXXX. 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 the 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. : First. In case of a governor, the remaining duplicate shall be enclosed in ais envelope, directed to the speaker of the Senate, and endorsed according to the fact,, which having been sealed, shall be enclosed in another envelope, sealed and direct- 2n 594 GENERAL ELECTION LAWS. ed to the secretary of the commonwealth, and the same shall forthwith be placed, by the said president, in the nearest post-ofEce. Second. 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 offices to be commissioned by the governor, the remaining duplicate shall be enclosed 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. Third. In case of the election of a senator or senators of this commonwealth, the same shall be enclosed 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 enclosed in an envelope, sealed and directed " To the House of Representatives of Pennsyl- vania," and each of said returns shall be enclosed in an envelope, and directed to the secretary of the commonwealth, and in like manner placed, by said president, in the nearest post-office. Fourth. In the case of county commissioners and county auditors the remaining duplicates shall be lodged in the office of the prothonotary of the county. Sect. LXXXI. When two or more counties shall compose a district forthe choice •of a member or members of the Senate of this conunonwealth, 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. Sect. LXXXII. 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 returns, for each office, shall be deposited in the office of the pro- thonotary 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 eightieth section of this act. Sect. LXXXIII. 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 Representatives of this commonwealth, a certificate of his election, within five days after the day of making up such return. Sect. LXXXIV. It shall be the duty of the prothonotary of every county to whom the return of any election shall be dehvered by the judges, as aforesaid, where said judges are required to send a copy of said return to the secretary of the commonwealth, to make out a copy of such return, certified under his hand and official seal, and forthwith to transmit such copy, under a sealed cover, to the secre- tary of the commonwealth, by placing the same in the nearest post-office. It shall also be the duty of the prothonotary of every county to record all the election returns in a book to be procured for that purpose, and to lay the returns of the election of county commissioners and county auditors, and of all township officers, before the court of Ciuarter Sessions of such county. Sect. LXXXV. It shall also be the duty of every prothonotary to give a certi- fied copy of the fist of voters and other papers deposited in his office by the judges of an election, to any person applying for the same, on payment of the usual fees as in other cases. Sect. LXXXVI. If the returns of any elections, which, by this law, are directed 10 be transmitted to the secretary of the commonwealth, shall not be received within fifteen days after the same are required to be deposited in the post-office, it shall be the duty of said secretary to forthwith notify the prothonotary of the proper county to transmit, without delay, a certified copy of such returns. Sect. LXXXVII. It shall be the duty of the secretary of the commonwealth, on the r 'CiMpt of the returns of the election of any township or county officer, who GENERAL ELECtlCiN LAWS, 595 is by law to be commissioned by the governor, +.0 forthwith lay the same before him ; and on the first Tuesday of January, in each and every year, as soon as the Senate shall convene, all returns of the felection of senators for that year to the speaker of the Senate. Sect. LXXKVIII. It shall be the duty of said secretary, between the hours of eleven o'clock, A. M. and one o'clock, P. M. of the first Tuesday in January, of each and every year, to take into the hall of the House of Representatives, the several returns of the elections of members of s^id house. Sect. LSXXIX. In all cases of election to fill vacancies in either branch of the - legislature, the secretary shallj on receiving the returns of such election, deliver the same without delay to the spealcer of the house in which such vacancy occurred, and if said house is not in session, when said return is received, then the same shall be delivered so soon as said house convenes. Sect. XC. It shall be the duty of said secretary, within five days after the meeting of the General Assembly, to deliver to the speaker of the Senate the returns of the election of governor, received by him from the several counties of this com* monwealth. Sect. XCI. Whenever the returns of an election for governor shall not be re- ceived from any county by the secretary of the commonwealth, before the election of governor shall be published, every such return so delayed shall be considered as void, unless the election be contested, in which case such returns shall be allowed to be of the same validity, and liable to the same exceptions, as other' returns received in due time. Sect. XCII. Every judge, inspector, and clerk as aforesaid, shall receive the sum of one dollar and fifty cents, except in the city and county of Philadelphia, where they shall receive two 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 com- missioners, which allowance shall be in full for his services and expenses other than the mileage herein-after allowed, and in lieu of all kinds of refreshment which may have been customary to provide, and no such expense for refreshment shall be paid or allowed by the commissioners of any county. Sect. XCIII. Every return judge shall be allowed out of the treasury of his proper county, the sum of ten cents for every mile he shall necessarily have travel- led in going to the place appointed by law, for the meeting of return judges, and in returning thence to his own house. ' Sect. XCIV. It shall be lawful for the governor of this commonwealth, on the representation of the board of health, or of the Municipal authority of any city, borough, town, or incorporated district in this commonwealth, that from the preva- lence of any inalignant or contagious disease, in such" city, borough, town, or district, the lives of the eleptors 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 sijch place within the limits, or in the neighbourhood of the same, as he, the governor, may judge most safe and convenient, and it shall be the duty of such sheriff to give public notice of such place, in the manner l^'erein-before required, at least seven days before the day of election, under the same penalty, as is hereinafter provided. Sect. XCV. No body of troops in the army of the United States, or of this com- monwealth, shall be present, either armed or unarmed, at any place of election with- in this commonwealth, during the time of such election; Provided, that nothmg 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 quaUfied according to law. ■ Sect. XCVI. 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 vacariey 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 Uke penalties. Sect. XCVII. 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 596 GENERAL ELECTION LAWS. shall respectively, on conviction, be fined in any sum not less than fifty nor more than one hundred dollars. Sect. XCVIIL If the commissioners of any county shall wilfully omit to insert in the list of taxables, delivered by them to the inspectors, as before directed, the name of any person duly assessed and returned to them by the assessor, they shall, on conviction thereof, be fined, and severally pay any sum not less than fifty nor more than one hundred dollars. Sect. XCIX. 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. Sect. C. 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 per- form the duties thereof according to law, he shall forfeit and pay the sum of one hundred dollars for every such offence. Sect. CI. 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 fined in any sum not less than fifty, nor more than two hundred dollars. Sect. CII. If 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 impri- sonment 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 honour, 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 common- wealth. Sect. CIII. If any inspector or judge of an election, shall, knowingly, reject the vote of any qualified citizen, or knowingly, receive the vote of any person not quali- fied, or conceal from his fellow officers any fact on the knowledge of which such vote should by law be received or rejected, each of the persons so offending shall, on conviction, be punished in the manner prescribed in the one hundred and seventh section of this act. Sect. CIV. If any such inspector or judge shall receive the vote of any person, whose name shall not be returned upon the list furnished by the commissioners or assessors, without first requiring the evidence directed in this act, the person so offending, shall, on conviction, be fined in any sum not less than fifty, nor more than two hundred dollars. Sect. CV. If any judge of an election, inspector, clerk, or other person, 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 con- viction 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. Sect. CVI. If any person shall embezzle or unlawfully deface, alter, change, sub- stitute, or destroy any ticket, list of voters, tally paper or certificate taken or made at any election as 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. Sect. CVII. If the commissioners of any county shall add or knowingly permit to be added the name of any person to the list of taxable inhabitants furnished them by the assessor, and shall return such name to the inspectors of election, each com- missioner concerned therein shall, on conviction thereof, be fined in any sum not less than fifty nor more than two hundred doUars. Sect. CVIII. If any assessor shall intentionally neglect or refuse to assess any citizen of this commonwealth, 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 per- form any other duty enjoined on him by the provisions of this act, he shall, on cor.- GENERAL ELECTION LAWS. 697 viction thereof, be fined in any sum not less than fifty nor more than two hundred dollars. Sect. CIX. If the commissioners of any county shall neglect or refuse to furnish the inspectors of each election district within the said county, the lists, papers' and boxes, required by the sixtieth section of this act, each commissioner shall be subject to a penalty of fifty, dollars. Sect. CX. If any person shall prevent or attempt to prevent any ofiicers 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 practise any intimidation, threats, force, or violence,(3) 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 sentenced to pay a fine of not less than one hundred nor more than one thousand dollars, and be imprisoned not less than six months nor more than two years. Sect. CXI. It shall be the duty of every mayor, sheriff, deputy-sheriff, alder- man, 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 election, or by any three qualified electors thereof, to clear any window, or avenue to any window, at the place of the genered election, which shall be ob- structed 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 legs than one hundred or more than one thousand dollars ; and it shall be the duty of the re- spective 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.(4) Sect. CXII. 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 indictments to be preferred before the grand jury against the persons so offending. Sect. CXIII. If it shall be made appear to any court of duarter Sessions of this commonwealth, that any riot or disturbance occurred at the time and place of hold- ing any election under this act, and the constables who are enjoined by law to attend at such elections 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 neglect- ing 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 ex- ceeding one hundred dollars. Sect. CXIV. It shall be the duty of the several courts of Quarter Sessions of this commonwealth, 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 (3) To constitute the offence of intimidation, threads, violence, or internjption, there must be a preconceived intention for the purpose of intimidating the officers or interrupting the elec- tion. Commonwealth «. Gibbs, 3 Y. 429. (4) The desire of the legislature to insure free access to the place where the citizens are to vote, and to preserve the public peace at elections, is strongly set forth in this section, and in that which precedes and follows it. Those who shall disturb the peace, use threatening lan- guage or attempt to block up the windows, are subjected to fine and imprisonment. The peace officers, including justices of the peace, are specially enjoined, under severe penalties, to clear the windows, and the avenues. to the windows at the place of the general election. It is due to truth, and the chariicter of the commonwealth, to state that the order, peace, and personal respect for the rights of others, exhibited at our elections, rarely indeed require the enforcement of any of the remedies or penalties provided for misbehaviour. 508 GENERAL ELECTION LAWS 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 ofEciai return at said court. Sect. CXV. If any person or persons shall make any bet or wager upon the result of any election 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 bfet or offered to bet. Sect. CXVI. 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 one hundred and fifteenth 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 commonwealth, to make a present- ment of all such offences coming within their knowledge. Sect. CXVII. It shall be the duty of inspectors and judge of the election to reject the votes of all persons, who 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 offer- ing to vote, has or has not made any such bet or wager, or is or is not interested therein. Sect. CXVIII. 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 commonwealth, or deposited the same in the hands of any person within their respective counties, districts or town- ships, to bring suit in the name of the commonwealth of Pennsylvania, for the use of the poor of such county, district or township, against such depositee or stake- holder ; 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 deposited 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 com- monwealth, 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 the time of making such 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 delivered 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 received 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 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. Sect. CXIX. 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 district, 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 im- prisoned for any term not exceeding three months. Sect. CXX. If any person shall vote at more than one election district, or otherwise fraudulently 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 GENERAL ELECTION LAWS. 599 than fifty, nor more than five hundred dollars, and be imprisoned for any term not less than three, nor more than twelve months. Sect. CXXL If any person not qualified to vote in this commonwealth, agree- ably to law, (except 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 on^j hun- dred dollars for every such offence, and be imprisoned for any term not exceed- ing three months. (5) Sect. CXXII. If any elector shall receive any gift or reM'ard for his vote, in meat, drink, mone}' or otherwise, he shall forfeit his right to vote at that election, and shall, on conviction, be fined in any sum not exceeding one hundred dollars, and suffer imprisonment for a term not less than one, tior more than six months. Sect. CXXIII. If any person shall give or bestow any such gift or reward, in order to procure any person to be elected, or shall promise or attempt, either directly or indirectly, to confer any such gift or reward for such purpose, or shall attempt or endeavour to influence any voter by any offer or promise of any appointment, emploj'ment or pecuniary benefit, or by threats of loss of any appointment, em- ployment or pecuniary benefit, he shall, on conviction, be fined in a sum not less than one hundred dollars, nor exceeding one thousand dollars, and suffer imprison- ment not less than one, nor more than twelve months. Sect. CXXIV. 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. Sect. CXXV. 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, nor more than five hundred dollars, and suffer imprisonment not less than six months, nor more than two years. Sect. CXXVI. If any prothonotary or sheriff shall neglect or refuse to perform any of the duties herein-before enjoined upon him, or shall wilfully misbehave in the doing thereof, he shall, on conviction thereof, be fined in any sum not less (5) The following extracts from a report, which we publish from 3 Yeates, 65, will afford some judicial construction as to what constitutes the offence of influencing and interfering at an elec- tion. " Circuit Court, Pittsburg, October, 1800, before Yeates and Smith, justices, in the case of RespMica v. Samiiel Ray. "The defendant was indicted on the 18th section of the Jet of 15 February, 1799, for that he, being an alien, and not qualified to vote in this state, did appear at an election in the town of Franklin, on the 8th of October, 1799, for the purpose of issuing tickets, and of influencing the citizens qualified to vote. " The informer was offered as a witness, but excepted to on the ground of interest, as being entitled to one half of the fine on conviction, under the 24th section, the same not being specific ; whereupon he executed a release to the defendant of his share of the forfeit- ure, and filed the same in court, and was thereupon admitted and sworn. " It did not appear that the defendant distributed any tickets on the election ground, but that he endeavoured to procure five or six persons to give their votes for a certain ticket ; whether he succeeded or not, was not known. " For defendant it was insisted, that he could not be legally convicted of influencing citizens qualified to vote, unless it could be ascertained that he prevailed on them to give their votes agreeably to his wishes. " But the court said, that if influencing means succeeding in the party's efforts, the law would be a dead letter; no conviction could take place, because no citizen was compellable to declare how he had given his suffrage. The word persuade has been construed, to carrj' the persuasion into effect; and the same idea has been assigned to it in prosecutions for high treason, (1 Dallas, 39,) during the Revolutionary war. But the word influence has not the same extensive signification, and only means, to use the party's endeavours, though he may not have been able to carry his point. This appears clearly from the latter words of the 18th section, where it is said, every person 'interfering in the manner aforesaid, shall forfeit and pay any sum not exceeding thirty dollars for every such offence.' " The defendant was acquitted of issuing tickets, but convicted of influencing persons to vote, and was fined fifteen dollars. 600 GENERAL ELECTION LAWS. than one hundred, nor exceeding five hundred dollars, and shall suffer imprison- ment for a term not exceeding twelve months. Sect. CXXVIL If any justice of the peace shall refuse to receive any hallot box delivered to him, as is herein-before 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. Sect. CXXVIII. 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 m the court of Gluarter Sessions of the proper county ; and where the fine and forfeiture is not specific, the pro- ceeding 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. IX. Of the Trial of Contested Eleotions. In the cases of Governor and Members of the Legislature of this Commonwealth. Sect. CXXIX. The election of any person as Governor, or as member of either branch of the legislature, may be contested on the petition of qualified electors of this commonwealth, under the following regulations and restrictions, but no petition complaining of an undue election, or false return of a person elected Governor, Senator, or member of the House of Representatives, shall be acted upon by the legislature, unless, First, The same be presented within ten days after the organization of the legislature next succeeding the election. Second, Nor unless the same be signed, in the case of a Governor, by at least fifty qualified electors ; and in the case of a senator or representative, by at least twenty such electors of the proper district, city, or county. Third, Nor unless the same shall be accompanied by an affidavit, taken and subscribed by at least five of the petitioners, before some person having authority to administer oaths, that the facts stated in such petition are true to the best of their knowledge and belief. Fourth, Nor unless the same be accompanied by a certificate from the treasurer, prothonotary, or one of the commissioners of the county in which the petitioners reside, setting forth that the said petitioners, or as many of them as is herein-be- fore required, w6re, at the time of signing the same, duly qualified electors. Sect. CXXX. In the case of a Governor, every such petition shall be delivered to the speaker of the Senate, who shall immediately give information thereof to both houses. And such petition being read in each house, shall be laid on the table, without any question being thereon taken, until the two houses shall pro- ceed thereon, which proceeding shall be as follows : Sect. CXXXI. The Senate and House of Representatives, on a day and hour to be agreed upon between them, not exceeding five days after the delivery of the petition, shall convene in the hall of the House of Representatives, where the petition shall be read by the speaker of the Senate. The names of the mem- bers of each house shall then be called over by the respective clerks, and a quorum of each house being present, a joint committee shall be formed as follows : First, The names of all the senators present, except the speaker, shall be writ- ten on distinct pieces of paper, as nearly alike as may be, each of which shall be rolled up, and put into a box, by the clerk of the House of Representatives, and placed on the speaker's table. Second, The clerk of the Senate having shaken and intermixed the said papers, shall draw them out one by one, and put them alternately into three boxes, also placed on the speaker's table. Third, When the whole number shall be so distributed, the clerk of the House of Representatives shall shake and intermix the papers in each box, and shall draw alternately from each box the papers so rolled up, and shall deliver them singly to the speaker of the House of Representatives. GENERAL ELECTION LAWS. 601 Fourth, The speaker of the House of Representatives shall open the said papers singly, and read aloud the name on each, and then deliver the papers singly to the speaker of the Senate, who shall place them openly on the table. Mjfih, A member of each house to be designated for the purpose by the re- spective speaker, shall take down in writing the name so called, and shall each of them repeat aloud the name he has so written, until the number of twelve names be drawn out and written down. Sect. CXXXIL The like proceedings shall then be had for the dratving of twenty-five members of the House of Representatives for the said purpose, ex- cepting. First, That the duties herein-before enjoined upon the clerk of the House of Representatives, shall be performed by the clerk of the Senate. Second, That the duties herein-before enjomed upon the clerk of the Senate, shall be performed by the clerk of the House of Representatives. TTiird, That the duties herein-before enjoined upon the speaker of the House of Representatives, shaH be performed by the speaker of the Senate. Fourth, That the duties herein-before enjoined upon the speaker of the Senate, shall be performed by the speaker of the Ho^se of Representatives, whose name shall not be placed in the box. Sect. CXXXIIL If any objection be made, by either of the parties, to any mem- ber so drawn by lot, such member shall be discharged, and another name shall be drawn to supply the place, and so on, until the whole number of twelve members of the Senate, and twenty-five of the House of Representatives, shall be completed ; and in all cases, the members drawn in place of those objected to, shall be in like manner liable to be set aside, and others shall be drawn in their places, but if so many be set aside by reason of objections, as aforesaid, that there shall not remain more than the number aforesaid, then no further objections shall be admitted. Sect. CXXXIV. When the number aforesaid shall be completed, the clerk of the House of Representatives shall draw out, one by one, the names of the remain- ing members of the Senate, and dehver them singly to the speaker of the House of Representatives, who shall unfold and read them aloud ; and the cjerk of the Senate shdl, in like manner, draw out the names of the remaining members of the House of Representatives, and deliver them singly to the speaker of the Senate, who shall unfold them, and read them aloud ; and if any unfairness or mistake shall be then discovered therein, the whole proceedings shall be set aside, and the same shall be renewed in manner and form herein-before directed ; but after the committee is sworn, no objection, for such cause, shall be received. Sect. CXXXV. When the proceedings aforesaid shall be concluded, a list of the twelve members of the Senate, and a separate hst of the twenty-five members of the House of Representatives, so drawn, shall be given to each of the parties, who shall immediately withdraw to some adjoining room with a clerk or member appointed by the joint vote of members present, where they shall proceed to strike off alternately the names upon such Ust, until the number shall be reduced to four members of the Senate, and nine of the House of Representatives. Sect. CXXXVI. On the parties vvrithdrawing to form such select committee, the members of both houses shall , continue convened, and the members whose names shall have been drawn out of the boxes shall not depart the conference room with- out leave, until the tune and place for the meeting of the select committee shall be fixed, as is herein-after provided. Sect. CXXXVII. Within one hour from the time of withdrawing, as aforesaid, the parties shall" dehver to the speaker of the Senate the names of the said four members of the Senate, and nine of the House of Representatives, remaining on the list, who shall then respectively take an oath or affirmation, to be administered by the speaker of the Senate, to "try the matter of the petition and to give a true judg- ment thereon according to the evidence, unless the committee shall be dissolved." Sect. CXXXVIII. The time and place for the meeting of the select committee, so appointed, shall then be directed by the joint vote of the members of both houses, which time shall be within twenty-four hours of their appointment. Sect. CXXXIX. If any person appointed a member of such select committee ehall, at the time of such appointment, swear or affirm that he cannot without great 602 GENERAL ELECTION LAWS. inconvenience serve on such, committee, he shall be excused, and in such case another shall be substituted. But if any member of such committee shall neglect to attend upon the committee, his name shall be reported in writing to th^ house of which he shall be a member, and unless satisfactory reasons be given for his non- attendance, he shall be reprimanded by the speaker of the house of which he is a member. Sect. CXL. The select committee so chosen shall on their first meeting elect a chairman from among themselves, and in the event of the death or unavoidable absence of such chairman, they shall choose another in his place, and if in any such election there shall be an equal number of votes, the member whose name was first drawn shall have a casting vote. Sect. CXLL The select committee shall sit from day to day, Sundays excepted, at such hours as shall not interfere with their attendance in the legislature, but unless nine of their number be present, the committee, after waiting one hour, shall adjourn to the next day, and if the number of the committee shall unavoidably be reduced to less than nine members, and shall so continue for the space of three days., Sundays excepted, the committee shall be dissolved and shall not be re-chosen in manner aforesaid : Provided, that when the two houses shall stand adjourned for more than three days the committee may adjourn to the same time. Sect. CXLIL The select committee shall have power to send for persons, papers and records, and to compel the attendance of, and examine aU witnesses who may come before them upon oath or affirmation, which the chairman or clerk of the com- mittee may administer in their presence, and to decide not only on the validity of such contested election, but also which of the candidates had the greatest number of legal votes. Sect. CXLIIL When it is proven to the satisfaction of said committee that any person not a legally qualified voter, voted at any such contested election, it shall be lawful for said conunittee to compel said voter to disclose, under oath, for which of the respective candidates he voted. But when the committee examines the witness on oath as to the person or persons for whom he voted, and said witness, on such examination, discloses the name of the person or persons for whom he voted at such election, he shall not afterwards be presented for having illegally voted at such elec- tion. Sect. CXLIV. The doors of the room in which the select committee shall meet, shall remain open during the examination of witnesses, but may be shut at any other time. All determinations of such committee shall be by a majority of the whole number appointed ; and as soon as the committee shall have agreed upon the same, the chairman shall make two reports thereof in writing, one of which shall be delivered/ to the speaker of the Senate, and the other to the speaker of the House of Representatives, which reports shall be entered on the journals of the respective houses, and shall be final and conclusive. Sect. CXLV. If the committee or a majority thereof, as aforesaid, shall report that either of the candidates had the greatest number of legal votes and ought to be admitted to the office, such candidates shall thereupon be entitled to such office. Sect. CXL VI. If the committee or a majority thereof, as aforesaid, shall report that such election or return is invalid, a new election shall take place on the second Tuesday in October ensuing, agreeably to the Constitution, of which the speaker of the Senate and speaker of the House of Representatives shall immediately give notice by their joint writ, directed to the sheriffs of the respective counties. And the sheriffs of the respective counties shall give due notice thereof according to law. Sect. CXL VII. Every petition, as aforesaid, complaining of an undue election or false return of a member of the Senate, shall be delivered to the speaker of the Senate, and thereupon the like proceedings shall be had in the Senate in selecting a committee of such house by lot, and the like powers and authorities shall be vested in the Senate in relation to such committee, and the said committee shall have the like powers and authorities and be subject to the like rules and regulations as are herein-before directed in case of a contested election of a governor ; excepting. First, That the several duties which are herein-before directed to be performed in such case by the speaker of the Senate and the speaker of the House of Repre- sentatives shall be performed by the speaker of the Senate. GENERAL ELECTION LAWS. 603 Second, That the several duties which are herein-before directed to be performed in such case by the clerk of the Senate and the clerk of the House of Representa- tives shall be performed by the clerk of the Senate. Third, That the number of members of the Senate first taken out by lot shall be thirteen, and that the select committee shall consist of seven members, and shall not be dissolved unless reduced to less than five members. Sect. CXLVIIL Every petition, as aforesaid, complaining of an undue election or a false return of a member of the House of Representatives, shall be delivered to the speaker thereof, and thereupon the hke proceedings shall be had in such house in selecting a committee thereof by lot, and the like powers and authorities shall be vested in such house in relation to such committee. And such committee shall have the hke powers and authorities, and be subject to the like rules and regula- tions as are herein-before directed in the case of a contested election of a governor : excepting. First, That the several duties which are herein-before directed to be performed in such case by the speaker of the Senate and the speaker of the House of Repre- sentatives shall be performed by the speaker of the House of Representatives. Second, That the several duties which are herein-before directed to be performed in such case by the clerk of the Senate and the clerk of the House of Representa- tives shall be performed by the clerk of the House of Representatives. Third, That the number of th« members of the House of Representatives first taken out by lot shall be seventeen', and that the select committee shall consist of nine members, and shall not be dissolved unless reduced to less than seven members. Sect. CXLIX. If the committee or a majority of them, as aforesaid, shall report that either of the candidates had the greatest number of legal votes and ought to be admitted to his seat, such candidate shall thereupon be entitled to such seat. But if they shall report that such election is invalid, a new election shall be directed and held to fill the vacancy, in the manner herein-before provided in case of vacancies in either branch of the legislature. Sect. CL. In all contested elections, as aforesaid, the person returned, and the candidate next highest in votes, shall be the parties in the trial thereof. And in case of the absence or neglect of such candidate, any one of the petitioners duly quahfied, taking precedence according to the order in which they have signed the petition, shall be considered one of the parties. Sect. CLI. If either, or both of the parties shall fail to attend, for the purpose of objecting to, and striking from the names drawn as is herein-before provided, the members of the Senate and of the House of Representatives jointly, or the members of either house, separately, as the case may require, shall appoint one of their own number, in the place of either or both of the said parties so neglecting to attend, which member or members so appointed, shall have full power and authority to do and perform every act and thing touching the same in as vahd and effectual a man- ner as if the party or parties were personally present. Sect. CLII. Every witness sent for, and attending the trial of any contested elec- tion as aforesaid, shall be allowed six cents for every mile of the distance, necessarily travelled by him in coming to, and returning from the place of trial, and shall also be allowed the sum of one dollar and thirty-three cents for every day he may be detained at the place of such trial, which mileage and expense, as well as the expense of summoning such witness, shall be taxed by the select committee, and certified by their chairman to the speaker of one or both houses, as the case may require. And the amount thereof, the same being first approved by the house or houses to which such certificate may be made, shall be paid by the treasurer of the county or counties in which the facts complained of took place, if such facts be sub- stantiated ; or by the treasurer of the county or counties in which the petitioners shall reside, if the statements in the petition shall not be substantiated, on orders drawn by the speaker of either or both houses, as the case may require. 2. Contested Elections of County and Township Officers. Sect. CLIII. The several courts of Quarter Sessions shall have jurisdiction to hear and determine all cases in which the election of any county or tovmship officer by the citizens in the respective county, may bp contested. 604 GENERAL ELECTION LAWS. Sect. CLIV. Upon the petition in writing of at least twenty qualified electors of the proper county, or township, as the case may he, complaining of an undue elec- tion or false return of any such officer, the court shall appoint a suitable time for hearing such complaint, notice of which shall he given to the person returned, at least ten days before such hearing ; Provided, that no order shall be taken on such peti- tion, unless it be accompanied by the oath or affirmation of at least two of such petitioners, setting forth that the facts therein stated are true, to the best of their knowledge and belief. Sect. CLV. The respective courts of Quarter Sessions shall have authority to compel the attendance of any officer of such election, and of any other person capa- ble of testifying concerning the same, and also to compel the productions of all books, papers, tally lists, tickets and other documents which may be required at such hear- ing, in like manner and to the same extent as in other cases litigated before euch court, and shall have all the powers which are conferred upon committees of the legislature, by the several provisions of this act. Sect. CLVL Every person who shall be subpoenaed and attend to be examined at such hearing, shall be entitled to receive the same daily pay and mileage as are by law allowed to witnesses attending such court in other cases, which shall be paid out of the treasury of the proper county, or township, as the case may be. Sect. CLVIL If the judges of such court, or a majority of them, shall certify that such complaint was without probable cause, the petitioners, and every of them, shall be liable for all the costs of such hearing ; and it shall be the duty of the com missioners of the proper county to proceed to recover the same by attachment issued from such court. X. Elections by the Legislature. 1 . Election of Senators of the United States. Sect. CLVIII. The election of senators to represent this state in the Senate of the United States, shall take place as follows, to wit : Each house of the legislature shall appoint one teller, and nominate at least one person to fill such office, and at least one day previous to the joint meeting hereinafter mentioned, communicate to the other house the names of the persons so appointed and nominated. Sect. CLIX. At the hour of twelve on the second Tuesday in January, next pie- ceding the expiration of the constitutional term of a senator aforesaid, the members of both houses shall meet in convention, in the chamber of the House of Representa- tives. The speaker of the Senate, or in his absence the speaker of the House of Representatives, shall preside, and in the absence of both, a president pro tempore shall be appointed by joint vote. Sect. CLX. When the convention shall be organized as aforesaid, the members present shall proceed to choose, viva voce, from the persons so as aforesaid nomi- nated, a senator to represent the state in the Senate of the United States ; the names of the persons voted for, and of the members voting, shall be entered in writing by the tellers, who shall report to the president of the convention the number of votes given for each candidate. Sect. CLXl. If neither of the candidates shall receive the votes of a majority of the members present, a second poll shall be taken, and so from time to time, until some one of the candidates shall receive the votes of a majority of the members present. Sect. CLXII. If the election shall not be completed at the first meeting, the presi- dent shall adjourn the meeting to such time as a majority of the members then pre- sent shall determine, and so from time to time, until some one of the candidates shall receive a majority as aforesaid. Sect. CLXIII. When the election shall be closed as aforesaid, the president of the convention shall announce the person who shall have received a majority of votes aforesaid, to be duly elected a senator to represent this state in the Senate of the United States, and he shall, in the presence of the members of both houses, sign four several certificates of the election, attested by the tellers, one of which certificates shall be transmitted by the president of the convention to the presiding officer of the Senate of the United States, one to the person so elected, and the remaining two shall be preserved among the records, and entered at length on the journals of each house. GENERAL ELECTION LAWS. 605 Sect. CLXIV. Whenever a vacancy, by resignation or otherwise, shall happen m the representation of this state in the Senate of the United States, the legislature, if in session, shall, within eight days after being informed of the same by the governor, proceed to supply such vacancy by an election, conducted in the manner herein-be- fore prescribed. 8. Election of Slate Treasurer. Sect. CLXV. The state treasurer shall be elected on the third [Monday] in Janu- ary, in every year, in the manner following, to wit : [Purd. 393. Dunl. 952.] Sect. CLXVI. Each house of the legislature shall, on the said third [Monday] in January, or on the [Saturday] immediately previous thereto, choose one teller, and furnish the other house with a minute of such choice. Sect. CLXVII. At the hour of twelve, on the said third [Monday] in January, the Senate and House of Representatives shall meet in convention in the chamber of the House of Representatives ; the speaker of the Senate, or in his absence the speaker iif the House of Representatives, shall preside, and in the absence of both, a presi- dent pro tempore shall be appointed by joint vote. Sect. CLXVIIL When the convention shall be organized as aforesaid, the mem- bers present shall proceed to elect a state treasurer, viva voce ; the names of the persons voted for, and of the members voting, shall be entered in writing by the tellers, who shall report to the president of the convention the number of votes given for each candidate, and the president of the convention shall thereupon declare the same. Sect. CLXIX. If neither of the candidates shall receive the votes of a majority of the members present, a second poll shall be taken, and so from time to time, until some one of the candidates shall receive the votes of a majority of the members present. Sect. CLXX. If the election shall not be completed at the first meeting, the pre- sident shall adjourn the meeting to such time as a majority of the members then present shall determine, and so from time to time, until some one of the candidates shall receive a majority of the votes as aforesaid. Sect. CLXXL When the election shall be closed as aforesaid, the president of the convention shall announce the person who shall have received a majority of the votes as aforesaid, to be duly elected state treasurer for the current year, and tripli- cate certificates shall be immediately made out and signed by the said president, and attested by the tellers, and the said tellers shall make report to their respective houses, which shall be entered at length upon their journals, and a certificate of such I'lection shall be transmitted to the governor. (6) Sect. CLXXII. When a vacancy in the office of state treasurer shall happen, by resignation or otherwise, the legislature, if in session, shall, within five days after being informed of the same by the governor, proceed to supply such vacancy by an election, conducted in the manner herein-before prescribed. Sect. CLXXIII. In case no state treasurer is elected at the time fixed by law, the treasurer for the time being shall hold the office until a successor is appointed according to the provisions of this act, and the bond given by the treasurer and his securities shall be held valid and binding so long as he continues in office. Sect. CLXXIV. That an act, entitled "An act to regulate the general elections nf this commonwealth," passed the fifteenth day of February, seventeen hundred and ninety-nine ; the second section of the act of first of March, eighteen hundred, third Smith's Laws, page four hundred and twelve ; an act, entitled " An act to direct the manner, time, and place, of holding elections for electors of president and vice-pre- sident of the United States," passed the second day of February, eighteen hundred and two, with the supplement thereto, passed the seventh day of March, eighteen hundred and twenty-nine ; an act, entitled " An act to prescribe the times, places, and man- ner, of choosing senators to represent this state in the Senate of the United States," ])assed the fifth of February, eighteen hundred and two ; an act, entitled " An act to ■ (6) By the act of 28th March, 1849, the term of office of the state treasurer shaJI commence on the first Monday of May next succeeding his election, and shall continue for one year, or until his successor shall be duly qualified. Dunl. 1113. 606 GENERAL ELECTION LAWS. alter and amend the act to regulate the general elections within this commonwealth," passed the fourth day of April, eighteen hundred and three ; an act, entitled " An act directing the mode of filling vacancies in the representation of this state in the House of Representatives of the United States," passed the eighteenth day of Febru- ary, eighteen hundred and five, and the supplements thereto, passed the second day of April, eighteen hundred and seventeen ; an act, entitled " An act altering the times of holding township elections, and meeting of return judges of the general elec- tions," passed the seventeenth day of March, eighteen hundred and six ; also, an act, passed the thirteenth of April, eighteen hundred and seven, fourth Smith's Laws, page four hundred and seventy-one ; also, act of same date, fourth Smith's Laws, page four hundred and seventy-six ; an act, entitled " An act to enable the militia or volunteers of this state, when in the military service of the United States or of this state, to exercise the rights of election," passed the twenty-ninth day of March, eighteen hundred and thirteen ; an act, entitled " A further supplement to an act to regulate the general elections within this commonwealth," passed the second day of April, eighteen hundred and twenty-one ; an act, entitled " An act to provide for the election of representatives of the people of this state in the Congress of the United States," passed the second day of April, eighteen hundred and twenty-two ; the se- cond, third, fourth, sixth, and seventh sections of an act, entitled " An act dividing the city of Philadelphia into fifteen wards, and providing for the choice of judges of the general elections, and for other purposes," passed the thirty-first day of March, eighteen hundred and twenty-five ; the sixty-sixth section of an act regulating elec- tion districts, passed tenth April, eighteen hundred and twenty-six ; a supplement to an act, entitled " An act to regulate the general elections within this commonwealth," passed the sixteenth day of April, eighteen hundred and twenty-nine ; and " An act regulating election districts, and for other purposes," passed the sixteenth day of June, eighteen hundred and thirty-six ; and all other laws of this commonwealth which are hereby altered or supplied by, or inconsistent with, this act, be, and the same are hereby, repealed. Act of July 3, 1839. Purd. 402. Dunl. 891. I. Electors to vote for prothonotaries, clerks, recorders, and registers, in the respective counties throughout the commonwealth. II. How said elections are to be conducted. III. Return judges to make out duplicate returns of elections — one copy to be filed in prothonotary's office — one to be sent to secre- tary of commonwealth — persons elected to be commissioned by the governor, &o. I. Sect. I. The qualified electors of each county in this commonwealth shall, at the next generat election, at the times and places of electing representatives, and whenever it becomes necessary for an election, under this act, vote for prothonota- ries, clerks of the several courts, recorders of deeds, and registers of wills, for each county respectively, as follows, namely : The qualified electors of the county of Mams shall elect one person to fill the of- fice of prothonotary ; one person to fill the offices of clerk of the courts of General (iuarter Sessions, and Oyer and Terminer, and of the Orphans' Court ; and one per- son to fill the offices of register of wills and recorder of deeds. The qualified electors of the county of Mlegheny shall elect one person to fill the offices of prothonotary of the court of Common Pleas and of the District Court ; one person to fill the offices of clerk of the several courts of General Quarter Sessions, and Oyer and Terminer, and Orphans' Court ; and one person to fill the office of register of wiUs ; and one person to fill the office of recorder of deeds. The qualified electors of the city of Pittsburg shall elect one person to fill the of- fice of clerk of the Mayor's Court, in and for said city. The qualified electors of the county of Armstrong shall elect one person to fill the offices of prothonotary, clerk of the court of General duarter Sessions, and Oyer and Terminer ; one person to fill the offices of register of wills, recorder of deeds, and clerk of the Orphans' Court. IV. Vacancies, how supplied. V. Contested elections under this act to be decided upon by the courts of Common Pleas — decree of court certified to the go- vernor — when complaint is filed, no commis- sion to issue. VI. Laws not inconsistent with this ac continued in force. GENERAL ELECTION LAWS. 607 The qualified electors of the county of Beaver shall elect one persoti to fill the of- fice of prothonotary ; one person to ml the offices of clerk of the dourts of General Cluarter Sessions, and Oyer and Terminer, and clerk of the Orphans' Court ; and one person to fill the offices of register of wills and recorder of deeds. • The qualified electors of the county of Bedford shall elect one person to fill tJje offices of prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Terminer, Orphans' Court, register of wills, and recorder of deeds. The qualified electors of the county of Berks shall elect one person to fill the office of prothonotary; one person to fill the offices of clerk of the courts of Gene- ral Quarter Sessions, and Oyer and Terminer ; one person to fill the office of clerk of the Orphans' Court ; one person to fill the office of register of wills, and one per- son to fill the office of recorder of deeds. The qualified electors of the county of Bradford shall elect one person to fill the offices of prothonotary, clerk of the courts of General Gluarter Sessions, and Oyer and Terminer ; one person to fill the offices of register of wills, recorder of' deeds, and clerk of the Orphans' Court. The qualified electors of the county of Bucks shall elect one person to fill the office of prothonotary ; one person to fill the'offices of clerk of the courts of Q^ene- ral Quarter Sessions, and Oyer and Terminer; one person to fill the office of clerk of the Orphans' Court ; one person to fill the office of register of wills, and one person to fill the office of recorder of deeds. The quedified electors of the county of Butler shall elect one person to fill the office of prothonotary ; one person to fill the offices of clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court; and one person to fill the offices of register of wills and recorder of deeds. IPamph L. 1851, p. 553.] The qualified electors of Cambria county shall elect one person to fill the offices' of prothonotary, clerk of the court of General Quarter Sessions, Oyer and Terminer, Orphans' Court, register of wills, and recorder of deeds. The qualified electors of the county of Centre shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions, and Oyer and Terminer ; and one person to fill the offices of register of wills, recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Chester shall elect one person to fill the office of prothonotary'; one pel-son to fill the offices of- the clerk Of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court ; one person to flU the office of register' of -wills, and one person to fill the office of recorder of deeds. The qualified electors of the county of Clearfield shall elect one person to fill the offices (rf prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Terminer, Orphans' Court, register of wills, and recorder of deeds. The qualified electors of Columbia coxnAj shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Termi- ner, and Orphans' Court ; and one person to fill the offices of register of wills and recorder of deeds. The qualified electors of the county oi Crawford shall elect one person to fill the office of prothonotary of the court of Common Pleas ; one person to fill the offices of clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Oyihans' Court; and one person to- fill the offices of register of wills and recorder of deed^." [Pamph. L. 1848, p. 367.] The qualified electors of the county of Cumberland shall elect one person to fill the office of prothonotary ; one person to fill the offices of recorder of deeds, clerks of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans'-Court ; and one person to fill the office of register of wills. The qualified electors of the county of Dauphin shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions, and Oyer and Terminer ; one person to fill the offices of the clerk of the Orphans' Court and recorder- of deeds; and one person to fill the office of register of wills. The qualified electors of- the coUnty of Delaware shall elect one person to fillthe offices of prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Terminer, Orphans' Court;* register of -wills, and recorder of deeds. The qualified electors of the county of Brie shall elect one person to fill the offices 608 GENERAL ELECTION LAWS. of prothonolary of the court of Common Pleas and District Court, clerk of the courts of General Gluarter Sessions, Oyer and Terminer, and Orphans' Court ; and one person to fill the offices of register of wills and recorder of deeds. The qualified electors of the county of Fayette shall elect one person to fill the offices of prothonotary, clerk of the courts of General Gluarter Sessions, and Oyer and Terminer, and one person for register of wills, and recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Franklin shall elect one person to fill the office of prothonotary ; one person to fill the offices of clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court, and one person to fill the offices of register of wills and recorder of deeds. The qualified electors of the county of Greene shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer and Terminer, and clerk of the Orphans' Court ; and one person to fill the offices of re- gister of wills and recorder of deeds. The qualified electors of the county of Huntingdon shall elect one person to fill the offices of prothonotary, clerk of the courts of Quarter Sessions and Oyer and Terminer ; and one person to fill the office of register of wills, recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Indiana shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer and Terminer ; and one person to fill the offices of register of wills, recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Jefferson shall elect one person to fill the offices of prothonotary, clerk of the court of Quarter Sessions, Oyer and Terminer, Orphans' Court, register of wills, and recorder of deeds. The qualified electors of the county of Juniata shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer and Terminer ; and one person to fill the offices of register of wills, recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Lancaster shall elect one person to fill the office of prothonotary of the court of Common Pleas ; one person to fill the offices of clerk of the courts of General Quarter Sessions and Oyer and Terminer , one per- son to fill the office of clerk of the Orphans' Court ; one person to fill the office of register of wills ; one person to fill the office of recorder of deeds. The qualified electors of the county of Lebanon shall elect one person to fill the office of prothonotary and clerk of the court of Oyer and Terminer ; one person to fill the office of clerk of the court of Quarter Sessions and Orphans' Court ; and one person to fill the offices of register of wills and recorder of deeds. The qualified electors of the county of Lehigh shall elect one person to fiU the office of prothonotary ; one person to fill the office of recorder of deeds ; one person to fill the offices of clerk of the courts of Quarter Sessions, Oyer and Terminer anJ Orphans' Court ; and one person to fill the office of register of wills. "The qualified electors of the county of Luzerne shall elect one person to fill the office of prothonotary ; one person to fill the offices of clerk of the courts of Gene- ral Quarter Sessions," Oyer and Terminer and Orphans' Court ; and one person tn fill the office of register of wills and recorder of deeds. [Pamph. L. 1849, p. 582.] The qualified electors of the county of Lycoming shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer and Terminer ; and one person to fill the offices of register of wills, and recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of M'Kean shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court, and register of wills and recorder of deeds. The qualified electors of the county of Mercer shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court ; and one person to fill the offices of register of wills and recorder of deeds. The qualified electors of the, county of Mifflin shall elect one person to fill the GENERAL ELECTION LAWS. 609 offices of prothonotary, clerk of the courts of General Gluarter Sessions and Oyer and Terminer ; one person to fill the offices of register of wills, recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Monroe shall elect one person to fill the offices of prothonotary, clerk of the courts of General Gluarter Sessions, and Oyer and Terminer, and Orphans' Court ; and one person to fill the offices of register of wills and recorder of deeds. The qualified electors of the county of Montgomery shall elect one person to fill the office of prothonotary ; one person to fill the offices of clerk of the courts of General Gluarter Sessions, Oyer and Terminer, and Orphans' Court ; one person to fill the office of register of wills, and one person to fill the office of recorder of deeds. The qualified electors of the county of jyorthampton shall elect one person to fill, the ofiSce of prothonotaiy ; one person to fill the offices of clerk of the courts of General Quarter Sessions and Oyer and Terminer ; one person to fill the office of clerk of the Orphans' Court ; one person to fill the office of register of wills, and' one person to fill the office of recorder of deeds. [Pamph. L. 1848, p. 418.] The qualified electors of the county of JYorthumberland shall elect one person to - fill the offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer and Terminer; and one person to fill the offices of register of wills, recorder- of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Perry shall elect one person to fill ihe- offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer- and Terminer ; and one person to fill the offices of register of wills, recorder of deeds, and clerk of the Orphans' Court. [Pamph. L. 1847, p. 296.] The qualified electors of the city and county of Philadelphia shall elect one per- son to fill the office of prothonotary of the court of Common Pleas ; one person to fin the office of prothonotary of the District Court of the city and county of Phila- delphia ; one person to fill the office of clerk of the courts of Oyer and Terminei and General Gluarter Sessions ; one person to fill the office of clerk of the court of Criminal Sessions for the city and county of Philadelphia ; one person to fill the office of clerk of the Orphans' Court ; one person to fill the office of register of wills, . and one person to fill the office of recorder of deeds. The qualified electors of the county of Fike shall elect one person to fiill the offices of prothonotary, clerk of the courts of General Gluarter Sessions, Oyer and Termi- ■ ner, and Orphans' Court, register of wills and recorder of deeds. The qualified electors of the county of Potter shall elect one person to fill the offices of prothonotary, clerk of the courts of General Gluarter Sessions, Oyer and- Terminer, and Orphans' Court, register of wills and recoMer of deeds. ■ The qualified electors of the county of Somerset shall elect one person to ffil the offices of prothonotary, clerk of the courts of General Gluarter Sessions and Oyer and Terminer ; and one person to fill the offices or register of wills, recorder of deeds, and clerk of the Orphans' Court. The qualified electors of the county of Schuylkill shall elect one person to fill the offices of prothonotary, clerk of the courts of General Gluarter Sessioiis and Oyer and Terminer ; and one person to fill the offices of clerk of the Orphans' Court, re- gister of wills and recorder of deeds. The qualified electors of the county of Susquehanna shall elect one person to filL the offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer and Terminer ; and one person to fill the offices of register of wills, recorder of deeds and.clerk of the Orphans' Court. The qualified electors of the county of Tioga shall elect one person to ffil the offices of prothonotary, clerk of the courts of General Gluarter Sessions and Oyer" and Terminer; and one person to fill the offices of register of wills, recorder of deeds and clerk of the Orphans' Court. The qualified electoi-s of the county of Union shall elect one person to fill the • offices of prothonotary, clerk of the courts of General Gluarter Sessiofis, Oyer and ' Terminer and Orphans' Court, and one person to fill the offices of register of wills ■ and recorder of deeds. 2o CIO GEJNTERAL ELECTION LAWS. The qualified electors of the county of Venango shall elect one person to fill the offices of prothfflnotary of the Common Pleas and District Courts, clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court, register of wills and recorder of deeds. Tlie qualified electors of the county of Warren shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions and Oyer and Terminer ; and one person to fill the offices of register of wills, recorder of deeds, and clerk of the Orphans' Court. [Pamph. L. 1848, p. 367.] The quahfied electors of the county of Washington shall elect one person to fill the office of prothonotary ; one person to fill the offices of clerk of the courts of ( reneral Quarter Sessions, and Oyer and Terminer, and Orphans' Court ; one per- son to fill the office of register of wills, and one person to fill the office of recorder of deeds. The quahfied electors of the county of Wayne shall elect one person to fill the offices of prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court ; and one person to fill the offices of register of wills and recorder of deeds. The quahfied electors of the county of Westmoreland shall elect one person to fiU the offices of prothonotary, clerk of the courts of General Quarter Sessions, Oyer and Terminer, and Orphans' Court ; and one person to fill the office of register of wills and recorder of deeds. The qualified electors of the county of York shall elect one person to fiU the office of prothonotary ; one person to fiU the offices of clerk of the courts of General Quar- ter Sessions, Oyer and Terminer, and Orphans' Court ; one person to fill the office of register of wills, and one person to fill the office of recorder of deeds. (7) II. Sect. II. That the said elections for prothonotaries, clerks, recorders of deeds and registers of wills, in each county, shall be held and conducted, in all respects, in the same manner as elections for representatives are or shall be held and conducted, ; and shall be held and conducted by the same judges, inspectors, and other officers. III. Sect. III. That it shall be the duty of the return judges of the election for representatives, for each county, when they meet, to make out returns for representa- tives ; also, to make out true duplicate returns of the elections of prothonotaries, clerks, recorders of deeds, and registers of wills, one of which said returns shall be filed in the prothonotary's office of the proper county, and the other return shall be immedi- diately transmitted by the sheriff, by mail, to the secretary of the commonwealth, to be filed in his office ; and it shall be the duty of such return judges, to give to each (7) The qualified electors of the county of Blair shall elect one person to fill the offices of pro- ' thonotary, clerk of the courts of General Quarter Sessions, of Oyer and Terminer, and of the Or- phans' Court ; and one person to fill the offices of register of wills and recorder of deeds. [Pamph. L. 1846, p. 65.] The qualified electors of the county of Carbon shall elect one person to fill the offices of pro- thonotary and clerk of the coittts of Oyer and Terminer, of Quarter Sessions, and of the Orphans' Court; and one person to fill the offices of register of wills and recorder of deeds. [Pamph. L. 1843, p. 231.] The qualified electors of the county of Clinton shall elect one person to fill the offices of pro- thonotary, clerk of the courts of Oyer and Terminer, General Quarter Sessions, and Orphans' Court, register of wills, and recorder of deeds. [Pamph. L. 1840, p. 336.] The qualified electors of the county of Fulton shall elect one person to fill the offices of pro- thonotary, clerk of the courts of Oyer and Terminer, General Quarter Sessions, and Orphans' Court, register of wills, and recorder of deeds. [Pamph. L. 1851, p. 809.] The qualified electors of the county of Lawrence shall elect one person to fill the offices of pro- thonotary and clerk of the courts of Quarter Sessions, of Oyer and Terminer, and of the Orphans' Court; and one person to fill the offices of register of wills and recorder of deeds. [Pamph. L. 1850, p. 278.] The qualified electors of the county of Montour shall elect one person to fill the offices of pro- thonot'ary and clerk of the several courts ; and one person to fill the offices of register and recorder. [Pamph. L. 1850, p. 659.] The qualified electors of the county of SuHimn shall elect one person to fill the offices of regis- ter of wills, recorder of deeds, prothonotary of the court of Common Pleas, and clerk of the Or- phans' Court, the Oyer and Terminer, and Quarter Sessions. [Pamph. L. 1849, p. 154.] The qualified citizens of the county of Wyoming shall elect one person to fill the offices of pro- thonotary and clerk of the courts of Oyer and Terminer and Quarter Sessions, and one person to fill the offices of register of wills and recorder of deeds. [Pamph. L. 1842, p. 222.] GENERAL ELECTION LAWS. 611 person, elected to any or all of the said offices, a certificate of his election, and the persons who appear by such certificates and returns to be duly elected, shall be com- missioned by the governor for the respective office or offices, for which they may have been elected, for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified : Provided, that no commission shall issue within the lapse of thirty days after the election, and shall commence and take effect from the first day of December next, after such election, unless when the same is sus- pended by reason of a contest under the fifth section of this act, in which case, the commission shall take effect from the time of the legal qualification of the officer under the same, and expire on the first day of December, as in other cases. rV". Sect. IV. That whenever any vacancy occurs in any of the said offices, the qualified electors of the proper county shall, at the next general election thereafter, elect, for the term of three years, a successor to fill the said vacancy, in the same manner as is herein-before provided in other cases. V. Sect. V. That the returns of the elections, under this act, shall be subject to the inquiry, determination, and judgment of the court of Common Pleas, of the proper county, upon complaint in writing, of thirty or more of the qualified electors of the proper county, of undue election or return of any such officer, two of whom shall take and subscribe an oath or affirmation, that the facts set forth in such complaint are true, to the best of their knowledge and belief; and the said court shall, in judging concerning such election, proceed upon the merits thereof, and shall determine finally concerning the same, according to the laws of this commonwealth ; and the prothono- lary of the said court shall immediately certify to the governor the decree of the said court on such election, and in whose favour such contested election shall be termin- ated, and the governor shall then issue the commission to such person, in whose favour such contested election has determined ; and the said court shall hear and determine such contested election at the next term after the election shall have been held, and such complaint shall not be valid or regarded by the court unless the same shall have been filed in the prothonotary's office within ten days after the election ; and in case such complaint is filed within the time above mentioned, it shaU be the duty of the prothonotary to transmit by mail, immediately, to the governor, a certified copy thereof, and in such case no commission shall be issued until the court shall have determined and adjudged on such complaint as aforesaid. VI. Sect. VI. That all such laws and parts of laws now in force, relating in any manner to prothonotaries, clerks of the several courts, recorders of deeds, and regis- ters of wills, which are not inconsistent with this act, be and the same are hereby declared to continue and remain in full force. Act of March 7, 1840. Purd. 401, 393. Dml. 897. Sect. I. That when a borough forms part of a township or townships, composing together one general election district, and which are entitled, by the act to which this is a supplement, to separately elect two justices of the peace, it shall be the duty of the judge and inspectors elected, to hold the general and township elections of each year, to provide a separate box into which they shall put the tickets voted for justices of the peace for said borough ; and the tickets voted for justices of the peace by the qualified voters of the township shall have the word " township," written or printed on the outside ; and the tickets voted for justices of the peace by the qualified voters of the borough, shall have the word "borough" viritten or printed on the outside, and the said judge and inspectors shall count the votes so voted for justices of the peace for said borough, and return the same in like manner, as is provided for in the election of justices of the peace for townships. Sect. XXVII. Whenever it shall become necessary for the citizens of any town- ship 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 i 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 cut in the same manner as is now provided for by the lavis of this commonwealth ; 612 GENERAL ELECTION LAWS. and such township election so held in any toAvnship which may be divided as afore- said, shall be held and conducted only by the judge, inspectors and clerks residing in the district where the place of holding the township election is or may be located ; any law to the contrary notwithstanding: Provided, Tha.t 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. Sect. XXVIIL It shall be the duty of the judge and inspectors holding and con- ducting such tovniship election to keep as many separate boxes and separate hsts 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 districts 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 second July, Anno Domini, eighteen hundred and thirty-nine, 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 town- ships a general election district, the judge holding such township election shall meet the judge or judges from the other township 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 respec- tive returns, which shall be signed, certified, and returned with their several returns in like manner as is now provided for by law. Act of nth April, 1840. Dunl 905. Sect. III. It shall be lawful for any alderman or justice of the peace, who was m commission at the time of the first election, held under the act to which this is a sup- plement, and who shall choose to retain his docket and deliver transcripts, under the tenth section of said act, in addition to the fees for said transcript, to demand and re- ceive, from the person requiring the same, all the fees legally due said alderman or justice in said suit or proceeding, and to retain such transcript until the same is paid. Sect. IV. That the bond required by the sixth section of the act of twenty-first of June, eighteen hundred and thirty-nine, to be given by any person elected a jus- tice of the peace or alderman, before entering upon the discharge of the duties of his office, shall be recorded in the office for recording of deeds of the proper county, after the same shall have been taken by the prothonotary, and the record thereof, or a cer- tified copy, under the hand and seal of the recorder of deeds, shall be admitted as legal evidence in all cases where the original bond would be evidence. Sect. V. That the commission of every person elected as justice of the peace or alderman, shall be entered of record, by the recorder of deeds of the proper county, and a certified copy, under the hand and seal of the recorder for the time being, or the record thereof, shall be admitted as legal evidence in the trial of any suit or suits, or bill or biUs of indictment, where the originsJ commission would be evidence. Act of April 16, I8i0. Purd. 394. JunZ. 912. Sect. IV. The thirteenth section of the act, passed July second, eighteen hundred and thirty-nine, entitled " An act relating to the elections of this commonwealth," shall not be so construed as to prevent any militia officer, or borough ofiicer, from serving as judge, inspector, or clerk, at any general or special election in this com- monwealth. Act of June 13, 1840. Purd. 394. Dunl 919. Sect. I. 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 judges, and also for each township officer voted for at such election, one of which they shall, togethei;^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 col- lect and deposit in one or more of the ballot-boxes, which boxes, together with the GENERAL ELECTION LAWS. 613 reniaining ones, shall be secured, delivered, and kept, as for similar ooxes is direct- ed in the seventy-fourth 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 ^f the judge of such election, within five days thereafter, to the clerk of the court of Gluarter Sessions of the proper county, to be filed in his office ; and the said in- spectors 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 ajter such election. Sect. IL The constable or constables of every township within this common- wealth, shall give public notice of the tovraship elections, by ten or more pnnted 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 sheriifs of counties, in cases of general elections, are directed, by the first and second divisions of the thirteenth section of the act to which this is a supplement, and in case of the neglect, refusal, death, or absence, of the aforesaid constable or constables, the duties herein enjoined on them shall be per- formed 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' no- tice ; and said elections shall be held and conducted under the regulations, not in- consistent 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 to fill any township office, or ren- der either or any of them uneligible to hold the same. Sect. IIL The commissioners of every county within this commonwealth shaD, on or before the first day of August, in each year, cause to be delivered to the assessor of every ward, township, incorporated district, and borough, within their respective counties, for which said assessors were respectively elected, a certified transcript, under seal of office, of the names and surnames of all the taxable persons returned at the last county assessment of said wards, townships, districts, and boroughs, and shall separately arrange the names of freeholders, tenants, and single men, in alpha- betical order. Sect. IV. The assessors of the several wards, townships, incorporated districts, and boroughs, within this commonwealth, shall, on the receipt of the transcripts aforesaid, proceed forthwith to make, from said transcript, not less than two copies of alphabetical Hsts, and as many more as the county commissioners shall direct, and in the form required of county commissioners, of the names and surnames of all the white freemen residing within their respective wards, townships, districts, and bo- roughs ; and said assessors shall, on or before the twentieth day of August, in each year, post up said copies at as many of the most public places within their respective wards, townships, districts, and boroughs, one of which shall be at the place of hold- ' ing their general elections : Provided, that when the election is not held within the ward, township, borough, or district, then all of said copies or lists,, made out as aforesaid, shall be fixed up within the ward, township, borough, or district, except the one copy required by this section to be fixed up at the place of holding such election. Sect. V. The assessors aforesaid shall also keep copies of the aforesaid lists in their office or possession, subject at all reasonable times to the inspection of any white freeman, without charge ; and shall, at any such time, ten days before the second Tuesday of October, in each year, on the personal a,pplication of any person, as aforesaid, claiming to be assessed vidthin their proper ward, township, incorporated district, or borough, or claiming a right to vote therein, as being between the age of twenty-one and twenty-two years, and having resided in the state one year, enter the name of such person upon the said lists in their office or possession ; and the said assessors shall, in the form aforesaid, make out duphcate copies of said lists of names and surnames of the white freemen and qualified voters residing within tli^eir respective wards, townships, districts, and boroughs, and at least eight days before the second Tuesday of October in each year, certify, sign, and deliver, one of said duplicates to the commissioners of their respective counties, who shaU file the same in their office ; the other the said assessors shall hold and hand over, without altera- 614 GENERAL ELECTION LAWS. tion or addition, to one of the inspectors of the election of their proper election district, on or before eight of the clock in the morning of the second Tuesday of October, m each year : Provided, that where any ward, township, incorporated district, or bo- rough, has been, or shall be, divided, in forming an election district, or part of an election district, said assessors shall make out, certify, sign, and deliver, as is herein- before directed, for wards, townships, districts, and boroughs, duplicate lists, as aforesaid, of the white freemen and qualified voters residing within each part of said divided ward, township, district, and borough. Sect. VL It shaU be the duty of said assessors respectively, on entering the names of persons claiming to be assessed, pursuant to the provisions in the foregoing section, forthwith to levy and assess on such persons, except those between the age of twenty-one and twenty-two years, such an amount of county tax as by law is levied and assessed on taxable inhabitants of like standing or occupation, and give a certificate of such assessment to the person so assessed, and return his name on said list to the commissioners, at least eight days before the election, noting, opposite said name, the words "tax not paid;" and the collector shall, on presentation of such certificate, receive said tax, and give a receipt for the same. Sect. VIL The commissioners of every county within this commonwealth shall, on or before eight of the clock in the morning of the day of every general, special, electoral, and township election, and at the times herein-after specified, perform the following duties : First. At elections, as aforesaid, they shall cause to be delivered to one of the in- spectors of every election district, within their respective counties, a sufiicient num- ber of boxes to contain the tickets, (unless the same has already been provided for said township,) blank forms of election oaths, tally papers, and returns, made out in a proper manner, and headed as the nature of the election may require. Second, At special, electoral, and township elections, they shall, in addition to ths foregoing, deliver to the aforesaid inspectors certified copies, under seal of office, of the dupHcate copies delivered them, to file in their respective offices, by the re- spective assessors of wards, townships, incorporated districts, and boroughs, within their respective couirties, pursuant to the directions and provisions contained in the fifth section of this act ; also a sufficient number of blank forms of certificates of elec- tion, for each person elected to any office voted for at township elections. Third. On the day of meeting of the return judges of elections, within their re- spective counties, they shall, immediately on said judges having met, and selected one of their number as president of the board, deliver to said president a sufficient number of blank forms of duplicate, triplicate, and single returns, made out in a pro- per manner, and headed as the nature of the return may require ; also blank forms of certificates of election, for each person elected at such election, made out and head- ed as the case may require. Sect. VIIL Li cases of elections of county commissioners and county auditors, one copy of the return of election shall be enclosed in an envelope, sealed, and di- rected "to the commissioners" of the proper county. Sect. IX. The clerk of the court of Gluarter Sessions of every county within this commonwealth shall, within fifteen days after the township elections, in each year, are returned into his office, 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 persons 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 therefor the usual fees for equal or similar services, to be paid out of the county treasury. Sect. X. 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. * Sect. XL 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 GENERAL ELECTION LAWS. 615 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 delivering to each township officer a certificate of his election, as directed by this act, and the act to which this is a supplement. Sect. XIL The respective assessors shall be psiid for the various duties required by this act, and the act to which this is a supplement, such sum as the commission- ers of the proper county shall believe just and reasonable, computing their services at the same price allowed by law, when engaged in making assessments ; and the decision of a majority of such board of commissioners, as to the amount to be paid for such service, shall be final and conclusive. Sect. XIIL The quahfied electors of every township within this commonwealth, who have neglected or omitted to elect township auditors, pursuant to the act of the fifteenth of ivlarch, one thousand eight hundred and thirty-four, relating to counties and townships, and county and township officers, shall, at the next annual township election, elect three township auditors, in the manner prescribed by said act, and shall annually, thereafter, continue to elect said officers, in the manner therein di- rected. Sect. XIV. Every inspector and judge of an election shall have fuU power and authority to administer oaths or affirmations, to any and e^U persons requiring or of- fering to be sworn or affirmed, in relation to the right of any person to vote at any election, authorized to be held under any law of this commonwealth, and generally shall, in the exercise of the duties of their office, as inspectors or judge, have the same power to administer oaths or affirmations, required or authorized to be admi- nistered by the provisions of this act, or the act to which this is a supplement, as justices of the peace have by the laws of this commonwealth ; and a violation of such oath or affirmation shall be subject to the same fines and penalties which are or may be inflicted by law for a violation of such oath or affirmation, when adminis- tered by a justice of the peace. Sect. XV. If any officer or officers, required to perform any duty by the provi- sions of this act, shaR neglect or refuse to perform the same, he or they so offending shall be considered and adjudged guilty of a misdemeanpr in office, and shall, on conviction, be fined in any sum not less than tvyenty 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 penal- ties inflicted by said act, for violation of such duty, be, and the same are hereby, extended to the duty herein required. Sect. XVI. The eighth, ninth, tenth, eleventh, twelfth, fifty-first, fifty-second, fifty-fifth, fifty-seventh, fifty-eighth, and sixtieth sections, and the fourth division of the eighteenth section of the act to which this is a supplement, and all other laws of this commonwealth, inconsistent with the provisions of this act, be, and the same are hereby, repealed. ^ct of June 13, 1840. Purd. 401. Dunl. 923. Sect. I. In all cases where an equal number of legal votes has been, or shall hereafter be polled, for two or more candidates for the office of alderman or justice of the peace, in any ward, borough, tovraship, or district, so that the said officers, required by law, shall not be duly elected, or where any election shall be declared void by the court, it shall be lawful for the qualified voters of such ward, borough, township, or district, to hold another election for the choice of such officer or of- ficers, and to fiU such vacancy. But before holding the same, it shall be the duty of the constable of the proper ward, borough, township, or district, to give notice, in the manner prescribed by law, that on a certain day, mentioned in said notice, not less than twenty nor more than thirty days thereafter, an election will be held to fill such vacancy ; which election shall be held and conducted in the mode and manner, and by the same officers and persons, as the constables' elections are held and conducted, and at the same place, and between the same hours, and be subject to the like inquiry, and judgment of the court of the proper county, as aldermen or justices, elected under the provisions of the act to which this is a further supple- ment : Provided, that when the election of any such officer shall be vacated or set aside by a decision of the court, the said court shall fix the time of holding such new 616 GENERAL ELECTION LAWS. election, which shall not be less than twenty days thereafter : Ani provided, that no election, held under the provisions of the section herein-after repealed, upon le- gal notice, given by the proper constable, to fill any vacancy contemplated 'by said section, shall be declared void, because it was held on a day fixed by the said con- stable. Sect. IL The commissions issued to aldermen or justices of the peace, elected un- der the provisions of this act, shall take effect from the same date and time, and con- tinue until the same period as commissions issued under the act of the twenty-first June, one thousand eight hundred and thirty-nine, to which this is a further sup- plement, and shall expire at the same time with commissions issued to such officers, elected at the time of electing constables. Sect. IIL The inspectors, judge, and clerks, required by law to hold township and general elections, shall take and subscribe the several oaths or affirmations, re- quired by the nineteenth, twentieth, and twenty-first sections of the act of the second day of July, one thousand eight hundred and thirty-nine, entitled " An act relating to the elections of this commonwealth," which oaths or affirmations shall be pre- pared and administered in the manner prescribed in the eighteenth and twenty- second sections of said act ; and in addition to the power conferred by the eighteenth section of said act, the judge, or either of the inspectors, shall have power to admi- nister the oaths prescribed by said act, to any clerk of a general, special, or town- ship election ; and the ninth section of the act to which this is a further supplement, be, and the same is hereby, repealed. Sect. IV. All contested elections of aldermen or justices of the peace shall be tried in the courts of Common Pleas, according to the provisions of the act to which this is a further supplement ; and said courts, in the trial of such contests, shall have all the powers conferred by the one hundred and fifty-fifth, one hundred and fifty-sixth, and one hundred and fifty-seventh sections of the act, entitled "An act relating to elections of this commonwealth," passed the second day of July, one thousand eight hundred and thirty-nine ; but no proceeding, commenced and now pending in the courts of Gluarter Sessions, shall be dismissed by reason of the pas- sage of this act, but the same shall be pursued to completion, with like power and effect as though it had been commenced in the court of Common Pleas. Sect. V. No state tax shall hereafter be charged on account of recording the com- mission, oath, bond, or other paper, connected with the election and appointment of aldermen and justices of the peace within this commonwealth. Sect. VI. The first section of the act of the eleventh April, one thousand eight hundred and forty, entitled " A supplement to an act, entitled ' An act providing for the election of aldermen and justices of the peace,' " passed the twenty-first day of June, one thousand eight hundred and thirty-nine, be, and the same is hereby, re pealed. Act of Sd April, 1841. Pamph. 144. Sect. II. That it shall be the duty of the assessors, within the city and incorpo- rated districts of the county of Philadelphia, in preparing the alphabetical lists and copies thereof of the white freemen residing within their respective wards, as required by the fourth section of the act of thirteenth June, one thousand eight hundred and forty, entitled a supplement to an act entitled an act relating to the elections of this commonwealth, to insert thereon the occupation and place of residence o-f each of said white freemen, specifying the street and number of the house where such white freeman resides. Sect. III. That the said assessors shall, on inserting the additional names, as provided for by the fifth section of the said act, mark opposite thereto the occu- pation and residence of the person whose name is added to the hst, and upon the duplicate copies required to be furnished to the officers of the election, the resi- dences and occupations shall be marked as aforesaid. Act of May 27, 1841. Purd. 221. Dunl. 947. Sect. I. That on the second Tuesday in October next, and on the same day every two years thereafter, it shall be lawful for the qualified voters in the several counties of this commonwealth, to elect a suitable person to serve as county GENERAL ELECTION LAWS. 617 treasurer, who shall enter upon the duties of his office, on th6 first Monday ih January next, after his election, and perform all, the duties enjoined by law on ihe several county treasurers of this commonwealth, until the first Monday in January, two years next after his induction into office as aforesaid. Sect. IL The election shall be held and returns of election made in the manner prescribed by law, in the case of county commissioners, and the validity of the election or return be subjfect to like trial and examination in case of a contest. Sect. IIL No judge, clerk, or plrothonotary of any court, register of wills, recorder of deeds, county commissioner, or county auditor, shall be eligible to election as county treasurer, during their continuance in office, nor shall any county commissioner, or county auditor be eligible until the expiration of one year next after the term for which they shall have been elected, nor shall any county treasurer serve in such office for more than two years, in any term of four years.. Sect. IV. Each person elected a county treasurer, shall, before entering into the duties of his office, give bonds with security, in the manner and on the con- ditions prescribed in the thirty-third and thirty-fourth' sections of an act, entitled "An act relating to county and township officers," passed the fifteenth day of April, one thousand eight hundred and thirty-four, and it shall be the duty of the county commissioners, after the bonds and surety are given and approved, to give the person so elected a certificate of his appointment, in the form and manner prescribed by the thirty-first section of the act last aforesaid, and forward a cer- tificate thereof to the auditor-general, in the manner therein prescribed, and such certificate shall be recorded as in said act is directed. Sect. V. In case any person so elected county treasurer shall be declared ineligible, refuse to give bonds agreeably to law, die, resign, remove from the county, or be removed from office on account of any delinquency or misdemeanor, it shall be lawful for the county commissioners to appoint a suitable person to fill said office until the expiration of the term for which such county treasurer shall have been elected, and the person so appointed shall conform and be subject to ~ the laws of this commonwealth in relation to county treasurers, and-be subject to like removal : Provided, No person shall be appointed, declared by law to be ineligible to election. Sect. VI. If the commissioners of any county shall helieve the county treasurer is embezzling, wasting, using or improperly managing the pubhc moneys com- mitted to his charge, or that from the insufficiency of his security, the public interests are likely to suffer, it shall be lawful for said commissioners to petition the court of Gluarter Sessions of the proper county, setting forth the facts com- plained of, and if said court shall believe said complaint well founded, it shall make such order for the removal of such treasurer, or require additional security, as to said court shall appear just and proper in the premises. Sect. VII. If any county treasurer, elected or appointed under the provisions of this act, after taking on himself the duties of the office, shall neglect or refuse to perform any duty required of him by law, he shall, on conviction, be fined in any sum not exceeding three hundred dollars, and be forthwith removed from office. Sect. VIII. Provides that it shall not be lawful for any county treasurer, county commissioner or commissioners, or any collector of taxes in any township, wafd, or district, nor for any other person on his or their behalf, to receive payment, or give any receipt for the payment of any taxes that have not been duly assessed, and returns of said assessment, made according to law, nor shall any such trea- surer, commissioner, or commissioners, or collector, or other person, on his or their behalf, receive payment or give any receipt for the payment of any taxes, from the payment of which the party assessed has been exonerated according to law, unless the party so exonerated shall himself appear in his own proper per- son, and tender payment of the taxes from which he had so been exonerated ; and it shall not be lawful for any commissioner or commissioners of any county, -or for, any other person on his or their behalf, to add any name or names to the duplicate return or list oftaxables, made or furnished by the assessor or assistant 618 GENERAL ELECTION LAWS. assessors of any township, ward, or district ; and if any such treasurer, commis- siouer, commissioners, or collector, or other person on his or their behalf, shall vio- late any of the provisions of this section, he shall, upon conviction thereof, before any court having competent jurisdiction, pay a fine of one hundred dollars for thn use of the commonwealth, and shall moreover be forthwith removed from office, and the vacancy thereby occasioned in either of said offices shall be filled or supplied as in other cases of vacancies in such office. Act of March 4, 1842. Purd. 1123. Bunl. 954. Sect. LXXXIV. That from and after the passage of this act, in all township elec- tions of this commonwealth, for judges of the general and township elections, where a tie shall exist in the said election of judges, the inspector who shall have the high- est number of votes, in said election, shall appoint a judge for that purpose. Resolution of March 18, 1840. Purd. 394. Hereafter the polls of the ward elections in the city of Philadelphia, and of the incorporated districts of the county of Philadelphia, shall be kept open until ten o'clock in the afternoon, and that the polls of the ward and general election in the city of Lancaster, shall be kept open until nine o'clock in the afternoon. Act of April 15, 1845. Purd. 402. Dunl. 1047. Sect. XXI. In all cases where the election of justices of the peace shall be con- tested, the justices then in commission shall continue to exercise and discharge the duties of provincial Council and Assembly, shall be stiled and called : The nieetings, sessions and proceedings of the General Assembly of the Province of Pennsylvania and the territories there- unto belonging. Fifteenth. And that the representatives of the people in provincial Council and Assembly, may in after ages bear some proportion with the increase and multiply- ing of the people, the number- of such representatives of the people, may be from time to time increased and enlarged, so as at no time the number exceed seventy-two for the provincial Council, and two hundred for the Assembly ; the appointment and proportion of which number, as also the laying and methodizing of the choice of such fepresentatives in future time, most equally to the division of th§ country, or number of the inhabitants is left to the Governor and provincial Council to propose, and the Assembly to resolve, so that the order of proportion be strictly observed, both in the choice of the Council and the respective committees thereof, viz. : one " third to go off, and come in yearly. Sixteenth. That from and after the death of this present Governor, the provin- cial Council shall, together with the succeeding Governor, erect from time standing courts of justicie, in such places and number as they shall judge convenient, for the good government of the said province and territories thereof; and that the provincial Council shall, on the thirteenth day of the second month then next ensuing, elect and present to the Governor or his deputy, a double number of persons to serve for judges, treasurers, and master of the rolls, within the said province and territories, to continue so long as they shall well behave themselves in those capacities respec- tively ; and the freemen of the said province in an Assembly met, on the thirteenth day of the third month, yearly shall elect and then present to the Governor or his deputy a double number of persons to serve for sherifs, justices of the peace and coroners for the year next ensuing, out of which respective elections and present- ments the Governor or his deputy shall nominate and commissionate the proper number for each office, the third day after the said respective presentments, or "else the first named in such presentment, for each office as aforesaid shall stand and serve in that office the time before respectively limited, and in case of death or default, such vacancy shall be supplied by the Governor and provincial Council in manner aforesaid. Seventeenth. That the A.ssembly shall continue so long as may be needful to impeach crimiiials, fit to be there impeached, to pass such bills into laws as are proposed to them, which they shall think fit to pass into laws, and till such time as the Governor and provincial Council shall declare, that they have nothing further to propose unto them for their assent and approbation, and that declaration shall be a dismiss to the Assembly for that time, which Assembly shall be notwithstanding, capable of assembling together upon the summons of the Governor, and provincial Council, at any time during that year, if the Governor and provincial Council shall see occasion for their so assembling. Eighteenth. . That all the elections of members or representatives of the people, 650 THE FRAME OF THE GOVERNMENT. to serve in provincial Council and Assembly, and all questions to be determined oy both or either of them, that relate to choice of officers and all, or any other perso- nal matters, shadl be resolved or determined by the ballot, and all things relating to the preparing and passing of bills into laws, shall be openly declared and resolved by the vote. ' . Nineteenth. That at all times when the proprietary and Governor shall happen to be an infant and under the age of one and twenty years, and no guardians or commissioners are appointed in writing, by the father of the said infant, or that such guardian shall be deceased, that during such minority, the provincial Council shall from time to time, as they shall see meet, constitute and appoint guardians and commissioners not exceeding three ; one of which shall preside as deputy and chief guardian during such minority, and shall have and execute with the consent of 'ohe of the other two, all the power of a Governor in all public a&irs and con- cerns of the said province and territories thereof, according to charter ; which said guardian so appointed, shall also have the care and oversight of the estate of the said minor and be yearly accountable and responsible for the same to the provincial Council, and the provincial Council to the minor when of age, or to the next heir, in case of the minor's death, for the trust before expressed. Twentieth. That as often as any days of the month mentioned in any article of this charter shall fall upon the first day of the week, commonly called the Lord's day, the business appointed for that day shall be deferred until the next day, imless incases of emergency. Twenty -first. And for the satisfaction and encouragement of all aliens, I do give and grant, that if any alien who is or shall be a purchaser, or who doth or shall in- habit in this province or territories thereof, shall decease at any time before he can well be naturalized, his right and interest therein shall notwithstanding descend to his wife and children, or other his relations, be he testate or intestate, according to the laws of this province and territories thereof in such cases provided, in as free and ample manner to all intents and purposes as if the said aUen had been naturalized. Twenty-second. And that the inhabitants of this province and territories thereof, may be accommodated with such food and sustenance as God in his providence hath freely afforded, I do also further grant to the inhabitants of this province and teni- tories thereof, liberty to fowl and hunt upon the lands they hold, and all other lands therein not enclosed ; and to fish in all waters in the said lands, and in all rivers and rivulets in and belonging to this province and territories thereof, with liberty to draw his or their fish on shore on any man's lands, so as it be not to the detriment or annoyance of the owner thereof, except such lands as do lie upon inland rivulets that are not boatable, on which are or may be hereafter erected into manors. Twenty-third. And that all the inhabitants of this province and territories there- of, whether purchasers or others, may have the last worldly pledge of my good and kind intentions to them and theirs, I do give, grant and confirm to all and every one of them, full and quiet possession of their respective lands, to which they have any lawful or equitable claim, saving only such rents and services for the same, as are or customarily ought to be reserved to me, my heirs or assigns. * Twenty-fourth. That no act, law or ordinance whatsoever, shall at any time here- after be made or done by the proprietary and Gflvemor of this province and territo- ries thereunto belongings' his heirs or assigns^ or by the freemen in provincial Coun- cil or Assembly, to alter, change, or diminish the form or effect of this charter, or any part or clause thereof, contrary to the true intent and meaning thereof, without the consent of the proprietary and Governor, his heirs or assigns, and six parts of seven of the said freemen in provincial Council and Assembly met. And lastly, I the said William Penn, proprietary and Governor of the province of Pennsylvania and territories thereunto belonging, for me, my heirs and assigns, have solemnly declared, granted and confirmed, and do hereby solemnly declare, grant and confirm, that neither I, my heirs nor assigns, shall procure nor do any thing or things whereby the liberties in thi% Charter contained and expressed, shall be infringed or broken, and if any thing be procured by any person or persons, con- trary to these premises, it shall be held of no force or effect. In witness whereof, I, the said WiUiam Penn, at Philadelphia, in Pennsylvania, have unto this present charter of liberties, set my hand and broad seal) this second day of the second THE FRAME OF THE GOVERNMENT. 651 month, in the year of our Lord one thousand six hundred eighty and three, being the five and thirtieth year of the king and the third year of my government. „,. .,. ^ WILLIAM PENN. J; his within charter, which .we have distinctly heard read, and thankfully re- ceived, shall be by us inviolably kept, at Philadelphia, the second day of the second month, one thousand six hundred and eighty and three. ■ The members of the Provincial Council present : William Markham, William Clark, John Moll, WilHam Biles, William Haige, James Harrison, Christopher Taylor, John Richardson, John Sinlcock, Philip Thomas Lenmar, William Clayton, Seer, Gfov, Francis Whitwell, Richard Ingelo, CI. Coun. Thomas Hohne, The members of the Assembly present : Casparus Harman, James Williams, John Darby, John Blunston, Benjamin Williams, John Songhurst, William Guest, John Hill, Valentine Hollingsworth, Nicholas Wain, James Boyden, Thomas Fitzwater, Bisnnony Bishop, John Clows, John Beazor, Luke Watson, John Harding, John Kipshaven, Andrews Bringston, Alexander Molestine, Simon Irons, Robert Bracy, Sem'or, John Wood, Thomas Bracy, John Curtis, William Yardly, Daniel Brown, John Hastings, William Futcher, Robert Wade, Thomas Hassald, Joseph Phipps, John Hsirt, Dennis Rotchford, Robert Hall, John Brinklair, Robert Bedwell, Henry Bowman, William Simsmore, CorneUus Verhoofe, Samuel Darke, John Southworth, CI. Synod. Robert Lucas, Some of the inhabitants of Philadelphia present : William Howell, Henry Lewis, Edmund Warner, Samuel Miles. ^M ifrairt? of the ^o'oevnmtnt Of the Province- of Pennsylvania and the territories thereunto belonging, passed by Governor Markham, November 7, 1696. Whereas, the late King Charles the Second, in the three and thirtieth ■ year oi his reign, by letters patent under the great seal of England, did for the considerations therein, mentioned, grant unto William Penn, his heirs and assigns for ever, this colony, or tract of land, thereby erecting the same into a province called Pennsyl- vania^ and constituting him, the said William Penn, absolute proprietary thereof, vesting him, his deputies and lieutenants, with divers great powers, pre-eminencies, royalties^ jurisdictions and aUithorities, necessary for the well-being and good govern ment of the said province. ' And whereas, the late Duke of York and Albany, &c., for valuable considerations, did grant unto the said WiUiam Penn, his heirs and assigns, all that tract of land, which hath been cast or divided into three counties 652 THE FRAME OF THE GOVERNMENT. now called Newcastle, Kent and Sussex, together with all royalties, franchises, duties, jurisdictions, liberties and privileges thereunto belonging; which last men- tioned tract being intended as a beneficial and requisite addition to the territory of the said proprietary and Governor, at the request of the freemen of the said three counties, by their deputies in Assembly mett, with the representatives of the free- men of the said province at Chester, alias Upland, on the sixth day of the tenth month, 1682, did (with the advice and consent of the members of the said Assembly) enact, that the said three counties should be annexed to the province of Pennsyl- vania, as the proper territories thereof; and whereas, king William and the late queen Mary, over England, &c., by their letters patent and commission under the great seal of England, dated the twenty-first day of October, in the fourth year of their reign, having (for the reasons therein mentioned) taken the government of this said province and territories into their hands, and under their care and protection, did think fit to constitute Benjamin Fletcher, Governor of New York, to be their Captain General and Governor in Chief over this province and country. And whereas, also the said king and queen, afterwards by their letters patent, under the great seal of England, dated the twentieth day of August, in the sixth year of their reign, have thought fit upon the humble application of the said William Penn, to restore them to the administration of the government of the said province and terri- tories, and that so much of their said commission, as did constitute the said Benja- min Fletcher, their Captain General and Governor in Chief of the said province of Pennsylvania, country of Newcastle, and the territories and tracts of land depending thereupon, in America, together with all the powers and authorities thereby granted, for the ruling and governing their said province and country, should from the pub- lication of the said last recited letters patent cease, determine and become void, and accordingly the same are hereby declared void ; whereupon, the said William Penn, did commissionate his kinsman William Markham, Governor under him, with directions to act according to the known laws and usages of this government. Now, forasmuch as the former frame of government, modelled by act of settlement and charter of liberties, is not deemed in all respects suitably accommodated to our present circumstances ; therefore it is unanimously desired, that it may be enacted. And be il enacted by the Governor aforesaid, with the advice and consent of the representatives of the freemen of the said province and territories in Assembly met, and by the authority of the same, that this government shall from time to time con- sist of the Governor or his deputy or deputies, and the freemen of the said province and territories thereof, in form of a Council and Assembly ; which Council and Assembly shall be men of most note for virtue, wisdom and ability ; and shall from and after the tenth day of the first month next, consist of two persons out of each of the counties of this government, to serve as the peoples representatives in Council ; and of four persons out of each of the said counties, to serve as their representatives in Assembly ; for the electing of which representatives, it shall and may be lawful to, and for all the freemen of this province and territories aforesaid, to meet together on the tenth day of the first month yearly hereafter, in the most convenient and usual place for election, within the respective counties, then and there to choose their said representatives as aforesaid, who shall meet on the tenth day of the third month, yearly, in the capital town of the said province, unless the Governor and Council shall think fit to appoint another place. And to the end, it may be known who those are in this province and territories, who ought to have right of or to be deemed freemen, to choose or be chosen to serve in Council and Assembly as aforesaid ; Be it enacted by the authority aforesaid. That no inhabitant of this province or territories, shall have right of electing or being elected as aforesaid, unless they be free denizens of this government, and are of the age of twenty-one years or upwards, and have fifty acres of land, ten acres whereof being seated and cleared, or be otherwise worth fifty pounds lawful money, of this government clear estate, and have been resident within this government for the space of two years next before such election. And whereas, divers persons within this government, cannot for conscience sake, take an oath upon any account whatsoever ; Be it therefore enacted, by the authority aforesaid. That all and every such person and persons, being at any time hereafter required upon any lawful occasion to give evidence, or take an oath, in any case THE FRAME OF THE GOVERNMENT. 653 whatsoever, shall, instead of swearing, be permitted to make his or their solemn affirmation, attest or declaration, which shall be adjudged, and is hereby enacted and declared to be of the same force and effect to all intents and purposes whatsoever, as if they had taken an oath, and in case any such person or persons shall be lawfully convicted of having AvilfuUy and corruptly affirmed or declared, any matter or thing upon such solemn affirmation or attest, shall incur the same penalties and forfeitures, as by the laws and statutes of England are provided against persons convicted of wilful and corrupt perjury. And be it further enacted by the authority aforesaid, That all persons who shall be hereafter either elected to serve in Council and Assembly, or commissionated or appointed to be Judges, Justices, Masters of the Rolls, Sheriffs, Coroners, and all other officers of state and trust, within this government, who shall conscientiously scruple to take an oath, but when lawfuUy required, will make and subscribe the declaration and profession of their Christian beh'ef, according to the late act of par- liament, made in the first year of King William, and the late queen Mary, entitled. An act for exempting their majesties Protestant subjects, dissenting from the Church of England, from the penalty of certain laws, shall be adjudged, and are hereby de- clared to be qualified to act in their said respective offices and places, and thereupon, the several officers herein mentioned, shall instead of an oath, make their solemn affirmation or declaration, in manner and form following, that is to say : The form of Judges and Justices attest shall be in these words, viz. : Thou shalt solemnly promise that as Judge, or Justice, according to the Governors commission to thee directed, thou shalt do equal right to the poor and rich, to the best of thy knowledge and power, according to law, and after the usages and consti- tutions of this government, thou shalt not be of council of any matter or cause de- pending before thee, but shall well and truly do thy office in every respect, accord- ing to the best of thy understanding. The form of the attests to be taken by the Masters of the Rolls, Secretaries, Clerks and such like officers, shall be thus, viz. : Thou shalt well and faithfully execute the office of, &c., according to the best of thy skill and knowledge ; taking such fees only, as thou oughtest to receive by the laws of this government. The form of the Sheriffs and Coroners attest shall be in these words, viz. : Thou shalt solemnly promise, that thou wilt well and truly serve the King and Governor, in the office of the Sheriff (or Coroner) of the county of, &c., and pre- serve the King and Governors rights, as far forth as thou canst, or mayest ; thou shalt truly serve and return, all the writs and precepts to thee directed ; thou shalt take no baihff nor deputy, but such as thou wilt answer for ; thou shalt receive no writs, except from such Judges and Justices who by the Laws of this government, have authority to issue and direct writs unto thee ; and thou shalt dihgently and truly do and accomplish all things appertaining to thy office, after the best of thy wit and power, both for the King and Governor's profit, and good of the inhabitants within the said county, taking such fees only as thou oughtest to take by the laws of this government and not otherwise. The form of a Constable's attest shall be this, viz. : Thou shalt solemnly promise well and duly, according to the best of thy under- standing, to execute the office of a Constable for the town (or coimty) of P., for this ensuing year, or until another be attested in thy room, or thou shalt be legally dis- charged thereof. The form of the Grand Inquests attests shall be in these words, viz. : Thou shalt dihgently enquire, and true presentment make of all such matters and things as shall be given thee in charge, or come to thy knowledge, touching this present service, the Kings counsel, thy fellows and thy own, thou shalt keep secret, and in all things thou shah present the truth, and nothing but the truth, to the best of thy knowledge. This being given to the Foreman, the rest of the Inquest shall be attested thus, by three at a time, viz. : The same attestation that your foreman hath taken on his part, you will well and truly keep on your parts. 654 THE FRAME OF THE GOVERNMENT, The form of the attest to be given to the Traverse Jury, by four at a time, shall be thus, viz. : You solemnly promise that you will well and truly try the issue of traverse, be- tween the Lord, the King, and A. B., whom you have in charge, according to your evidence. In civil causes thus, viz. i YoM solemnly promise that you will well and truly try the issue between A. B. plaintiff, and C. D. defendant, according to your evidence. Provided always, and it is hereby intended, that no person shall be by this act excused from swearing, who by the acts of parliament for trade and navigation, are or shall be required to take an oath. And that elections may not be corruptly managed, on which the good of the government so much depends ; Be it further enacted by the authority afores^d, That all elections of the said representatives shall be free and voluntary, and that the electors who shall receive any reward or gift for giving his vote, shall forfeit his right to elect for that year ; and such person or persons, as shall give or pro- mise any such reward to be elected, or that shall offer to serve for nothing, or for less wages than the law prescribes, shall be thereby rendered incapable to serve in Council or Assembly for that year ; and the representatives so chosen, either for Council or Assembly, shall yield their attendance accordingly, and be the sole judges of the regularity or irregularity of the elections of their respective mem- bers ; and if any person or persons, chosen to serve in Council or Assembly, shall be wilfully absent from the service, he or they are so chosen to attend, or be de- ceased, or rendered incapable then, and in all such cases, it shall be lawful for the Governor within ten days after knowledge of the same, to issue forth a writ to the Sheriff of the county, for which the said person or persons, were chosen, immedi- ately to summons the freemen of the same to elect another member in the room of such absent, deceased, or incapable person or persons ; and in case any Sheriff shall misbehave himself in the management of any of the said elections, he shall be punished accordingly, at the discretion of the Governour and Council, for the time being. Be it further enacted,. by the authority aforesaid. That every member now cho- sen, or hereafter to be chosen, by the freemen as aforesaid, to serve in Council, and the Speaker of the Assembly, shall be allowed five shillings by the day during his and their attendance ; and every member of Assembly shall be allowed four shillings by the day, during his attendance on the service of the Assembly; and that every Member of Council and Assembly shall be allowed towards their tra- velling charges, after the rate of two pence each mile, both going to and coming from the place where the Council and Assembly is, or shall be held ; all which sums shall be paid yearly out of the county levies, by the county receivers re- spectively. And be it further enacted by the authority aforesaid. That the Governor or his Deputy shall always preside in the Council, and that he shall at no time perform any pubhc act of state whatsoever, that shall or may relate unto the justice, trea- sury or trade of the province and territories, but by and with the advice and con- sent of the Council thereof, or major part of them that shall be present. And be it further enacted by the authority aforesaid. That all the Sheriffs and Clerks of the respective counties of the said province and territories, who are, or shall be commissionated, shall give good and sufficient security to the Governor, for answering the King and his people, in matters relating to the said offices re- spectively. And be it 'further enacted by the authority aforesaid. That the Council in all cases and matters of moment, as about erecting courts of justice, sitting in judg- ment upon persons impeached, and upon bills and other matters, that may be from lime to time presented by the Assembly; not less than two thirds shall make a quorum, and that the consent and approbation of the majority of that quorum, shall be had in all such cases and matters of moment, and that in cases of less moment, not less that one third of the whole shall make a quorum ; the majority of which shall and may always determine in all such matters of lesser momeat, as are not above specified : and in case the Governors power shall hereafter hap- THE FRAME OF THE GOVERNMENT. 655 pen to be in the Council, a President shall then be chosen out of themselves, by two thirds or the major part of them, which President shall therein preside. Be it further enacted, by the authority aforesaid, That the Governor and Coun- cil shall take care that all the laws, statutes and ordinances, which shall at any time be made within the said province and territories, be duly and diligently exe- cuted. Be it further enacted, by the authority aforesaid. That the Governor and'Coun- cil shall at all times have the care of the peace of this province and territories thereof, and that nothing be by any persons attempted to the subversion of this frame of government. And be it further enacted by the authority aforesaid. That the Governor and Council, for the time being shall at all times settle and order the situation of all cities and market towns, modelling therein all public buildings, streets, and mar- ket places ; and shall appoint all public landing places of the towns of this pro- vince and territories ; and if any mans property shall be judged by the Governor and Council, to be commodious for such landing place in the said towns,' and that the same be by them appointed as such, that th* owner shall have such rea- sonable satisfaction given him for the same, as the Governor, and Council shall see meet, to be paid by the said respective towns. Be it further enacted, by the authority aforesaid. That the Governor and Coun- cil shall at all times have power to inspect the management of the public treasury, and punish those who shall convert any part thereof to any other use than what hath been agreed upon by the Governor, Council and Assembly. Be it further enacted, by the authority aforesaid. That the Governor and Coun- cil shall erect, and order all public houses, and encourage and reward the authors of useful sciences and laudable inventions in the said province and territories thereof. And be it further enacted, by the authority aforesaid, That the Governor and Council shall from time to time have the care of the management of all public affairs, relating to the peace, safety, justice, treasury, trade, and improvement of the province and territories, and to the good education of youth, and sobriety of the manners of the inhabitants therein, as aforesaid. And be it further enacted, by the authority aforesaid, That the representatives of the freemen, when met in Assembly, shall have power to prepare and propose to the Governor and Council, all such bills as they or the major part of them shall at any time see needful to be passed into laws, within the said province and terri- tories. Provided always that nothing herein contained shall debar the Governor- and Council- from recommending to the Assembly, all such bills as they shall think fit to be passed into laws ; and that the Council and Assembly may, upon occasion, confer together in committees when desired ; all which proposed and prepared bills, or such of them as the Governor with the advice of the Council shall in open Assem- bly declare his assent unto, shall be the laws of this province and territories thereof, and published accordingly with this stile : By the Governor, with the assent and approbation of the freemen in General Assembly met ; a true transcript or dupli- cate whereof shall be transmitted to the kings privy council for the time being;, according to the said late kings letters patent. And be it further enacted, by the authority aforesaid. That the Assembly shall sit upon their own adjournments, and committees, and continue in order to prepare and propose bills, redress grievances, and impeach criminals, or such persons as they shall think fit to be there impeached, until the Governor and Council for the time being shall dismiss them ; which Assembly shall notwithstanding such dismiss, be capable of assembling together upon the summons of the Governor and Council, at any time during that year i two thirds of which Assembly, in all cases, shall make a quorum. And be it enacted, by the authority aforesaid. That all elections of representatives, for Council and Assembly, and all questions to be determined by them, shall be by the major part of voles. Be it further enacted, by the authority aforesaid, That as oft as any days of the month mentioned in any article of this act, shall fall upon the first day of the week. 656 THE FRAME OF THE GOVERNMENT. commonly called the Lords day, the business appointed for that day, shall be deferred till the next day, unless in cases of emergency. Be it further enacted, by the authority aforesaid, That if any alien, who is or shall be a purchaser of lands, or who doth, or shall inhabit in this province, or territories thereof, shall decease at any time before he can well be denizised, his right and interest therein shall, notwithstanding, descend to his wife and children, or other his relations, be he testate or intestate, according to the laws of this province and terri- tories thereof, in such cases provided, in as free and ample manner, to all intents and purposes, as if the said alien had been denizised. And that the people may be accommodated with such food and sustenance, as God in his providence hath freely afforded ; Be it enacted, by the authority afore- said, That the inhabitants of this province and territories thereof, shall have liberty to fish and hunt upon the lands they hold, or all other lands therein, not enclosed, and to fish in all waters in the said lands, and in all rivers and rivulets, in and belonging to this province and territories thereof, with liberty to draw his or their fish upon any mans land, so as it be not to the detriment or annoyance of the owner thereof, except such lands as do lie upon inland rivulets, that are not boatable, or which hereafter may be erected into manors. Be -it further enacted, by the authority aforesaid, That all inhabitants of this pro- vince and territories, whether purchasers or others, and every one of them shall have full and quiet enjoyment of their respective lands and tenements, to which they have any lawful or equitable claim, saving only such rents and services for the same, as are or customarily ought to be reserved to the lord or lords of the fee thereof respectively. Be it further enacted by the authority aforesaid. That no act, law, or ordinance whatsoever, shall at any time hereafter, be made or done by the Governor of this province and territories thereunto belonging, or by the freemen in Council or Assem- bly, to alter, change or diminish the form and effect of this act, or any part or clause thereof, contrary to the true intent and meaning thereof, without the consent of the Governor, for the time being, and six parts of seven of the said freemen in Council and Assembly met. This act to continue and be in force, until the said Proprietary shall signify his pleasure to the contrary, by some instrument under his hand and seal in that behalf. Provided always, and it is hereby enacted, That neither this act, nor any other act or acts whatsoever, shall preclude or debar the inhabitants of this province and territories, from claiming, having and enjoying, any of the rights, privileges and immunities, which the said Proprietary for himself, his heirs and assigns, did for- merly grant, or which of right belong unto them the said inhabitants by virtue of any law, charter or grants whatsoever, any thing herein contained to the contrary, notwithstanding. THE RIGHTS AND DUTIES OF JURYMEN. 657 ^f)t Misf)is awJ> duties of 3uvsimm, There have been heavy and general complaints of the want of a popular publicafion expounding the rights and the duties of jurymen. On their intelligence and independence we mainly depend for the security of our lives and properties ; our liberties and reputation. If they are ignorant or venal, where shall we look for protection from the profligate and the powerful 1 " Sir John Hawkes, knight, solicitor-general to the late King William," published a treatise on this subject, in the year 1680, in the form of a dialogue between a barrister at law and a juryman. This pamphlet has not been superseded nor set aside by any publication which has appeared since that time, more than a century and a half ago. This is no mean evidence of the intrinsic value of the book. It is to this day frequently published and freely circulated throughout the British islands, unaccompanied by any modern note or comment. Societies for the diffusion of useful knowledge distribute, annually,in England, many thousand copies. The orthography and punctuation have been modernized, but the sense has in no wise been affected. The original publication of this dialogue having been in the days of William Penn, it may be regarded as being as much addressed to Americans as to Englishmen, and as truly the law in Pennsylvania as in England. These facts and considerations induce a belief that the re-publication of this .exposition of the rights and duties of jurymen cannot fail of diffusing much useful information. Barrister. My old client ! a good morning to you : whither so fast ? you seem i intent upon some important affair. Juryman. Worthy sir ! I am glad to see you thus opportunely, there being scarce any person that I could at this time rather have wished to meet with. Barr. I sheill esteem myself happy, if in any thing I can serve you. The busi- ness, I pray ? Jurym. I am summoned to appear upon a jury, and was just going to try if I could get off. Now I doubt not but you can put me into the best way to obtain that favour. Barr. It is probable I could : but first let me know the reasons why you desire to decline that service. Jurym. You know, sir, there is something of trouble and loss of time in it : — and men's lives, liberties, and estates (which depend upon a jury's guilty, or not guilty, for the plaintiff, or for the defendant) are weighty things. I would not wrong my conscience for a world, nor be accessary to any man's ruin. There are others better skilled in such matters. I have ever so loved peace, that I have for- borne going to law (as you well know) many times, though it hath been much to my loss. Barr. I commend your tenderness and modesty ; yet must tell you, these are but general and weak excuses. As for your time and trouble, it is not much ; and however, can it be better spent- than in doing justice, and serving your country ? To withdraw yourself in such cases, is a kind of sacrilege, a robbing of the public of those duties which you justly owe it. The more peaceable man you have been, the more fit you are : for the office of a juryman is, conscientiously to judge his neighbour ; and needs no more taw than is easily learnt to direct him therein. I look upon you, therefore, as a- man well qualified with estate, discretion, and integrity ; and if all such as youi should use private means to avoid it, how would the king and country be honestly served ? At that rate we should have none but fools or knaves intrusted in this grand concern, on which (as you well observe) the lives, libertfes, and estates of all . England depend. Your tenderness not to be accessary to any man's being wronged or ruined, is (as I said) much to be commended. But may you not incur it unawares, by seek- - ing thus to avoid it ? Pilate was not innocent because he washed his hands, andri said, "He would have nothing to do with the blood of that just one." There are ■ faults of omission as well as commission. When you are legally called to try sucb; a cause, if you shall shuffle out yourself, and thereby persons perhaps less cont- scientious happen to be made use of, and so a villain escapes justice, or an innocent} 2r 658 THE RIGHTS AND DUTIES OF JURYMEN. man is ruined, by a prepossessed or negligent verdict ; can you think yourself in such a case wholly blameless ? Qui non prohibet cum potest, jubet : That man abets an evil, who prevents it not, when it is in his power. Nee caret scrupulo societatis occultx, qui evidentlr facinori definit obviare : Nor can he escape the suspicion of being a secret accomplice, who evidently declines the prevention of an atrocious crime. Jurym. Truly, I think a man is bound to do all the good he can ; especially when he is lawfully called to it. But there sometimes happen nice cases, wherein ii may be difficult to discharge one's conscience without incurring the displeasure of the court, and thence trouble and damage may arise. Barr. That is but a vain and needless fear. For as the juror's privileges (and every Englishman's in and by them) are very considerable ; so the laws have no less providently guarded them against invasion or usurpation. So that there needs . no more than, first, understanding to know your duty ; and, in the next place, courage and resolution to practise it with impartiality and integrity, free from accursed bribery and malice, or (what is full as bad in the end) base and servile fear. Jurym. I am satisfied, that as it is for the advantage and honour of the public, that men of understanding, substance and honesty, should be employed to serve on juries, that justice and right may fairly be administered ; so it is their own interest, when called thereunto, readily to bestow their attendance and service, to prevent ill precedents from men otherwise qualified ; which may by degrees fatally, though insensibly, undermine our just birth-rights, and perhaps fall heavy one day upon us, or our posterity. But, for my own part, I am fearful lest I should suffer through my ignorance of the duty and office of a juryman ; and, therefore, on that account prin- cipally it is, that I desire to be excused in my appearance ; which if I understood : but so well as I hope many others do, I would with all my heart attend the service. Barr. You speak honestly, and like an Englishman. But if that be all your cause of scruple, it may soon be removed, if you will but give yourself a very little- trouble of inquiry into the necessary provisions of the law of England relatintr to this matter. Jurym. There is nothing (of a temporal concern) that I would more gladly be ■ informed in ; because I am satisfied, it is very expedient to be generally known. And first, I would learn how long trials by juries have been used in this nation. Barr. Even time out of mind ; — so long, that our best historians cannot date the ■ original of the institution ; being indeed cotemporary vidth the nation itself, or "in use as soon as the people were reduced to any form of civil government, and admi- nistration of justice. Nor have the several conquests or revolutions, the mixtures of foreigners, or the mutual feuds of the natives, at any time, been able to suppress or overthrow it. For, 1 . That juries (the thing in effect and substance, though perhaps not just the num^ ber of twelve men) were in use among the Britons, (the first inhabitants of this island,) appears by the ancient monuments and writings of that nation ; attesting that their freeholders had always a share in all trials and determinations of differences. 3. Most certain it is, that they were practised by the Saxons,(l) and were then the ■ only courts, or at least an essential and the greater part of all courts of judicature ; for so (to omit a multitude of other instances) we find in King Ethelred's laws : "Jn singulis centuriis," S/'c, " in every hundred let there be a court, and let twelve an- cient freemen, together with the lord, (or rather,' according to the Saxon, the greve, i. e. the chief ofiicer amongst them,) be sworn that they will not condemn any per- son that is innocent, nor acquit any one that is guilty." 3. When the Normans came in, William, though commonly called the Con- queror, was so far from abrogating this privilege of juries,(2) that in the fpurth year of his reign, he confirmed all king Edward the Confessor's laws, and the ancient cus- toms of the kingdom, whereof this was an essential and most material part. Nay, he made use of a jury, chosen in every county, to report, and certify on their oaths, what those laws and customs were ; as appears in the proem of such his confirmation. 4. Afterwards when the Great Charter, commonly called Magna Charta, {which (1) Lamb. p. 218. Coke, 1 part, Institutes, fol. 155. (3) See Spelman's Glossar. in the word Jurata. THE RIGHTS AND DUTIES OF JURYMEN. 659 is nothing else than a recital, confirmation, and corroboration, of our ancient English liberties,) was made and put under the great seal of England, in the ninth yea,r of King Henry the Third, (which was anno Domini 1355,) then was this privilege of trials by juries in an especial manner confirmed and established ; as in the fourteenth chapter, " that no amercements shall be assessed but by the oath of good and honest men of the vicinage." And more fully in that golden nine and twentieth chapter : " No freeman shall be taken or imprisoned, nor be disseised of his freehold or liber- ties, or free customs, or be outlawed or exiled, or any other way destroyed, nor shall we pass upon him, or condemn him, but by the lawful judgment of his peers, &c." Which Grand Charter having been confirmed by above thirty acts of parliament, the said right of juries thereby, and by constant usage and common custom of Eng- land, which is the common law, is brought down to us as our undoubted birth-right, and the best inheritance of every Engfishman. For as that famous lawyer. Chief Justice Coke, (3) in the words of Cicero, excellently avers, "major hsereditas venil unicuique nostrum a jure et legibus, quam aparentibus." " It is a greater inheri- tance, and more to be valued, which we derive from the fundamental constitution aad laws of our country, than that which, conies to us from our respective parents," for without the former we have no claim to the latter. Jurym. But has this method of trial never been attempted to be invaded or jostled out of practice ? Barr. It is but rarely that any have arrived to so great a confidence ; " for it is a most dangerous thing to shake or alter any of the rules or fundamental points of the common law, which, in truth, are the main pillars and supporters of the fabric of the commonwealth." These are Judge Coke's words. (4) Yet sometimes it has been en- deavoured ; but so sacred and invaluable was the institution in the eyes of our an- cestors, and so tenacious were they of their privileges, and zealous to maintain and preserve such a vital part of their birth-right and freedom, that no such attempts could ever prove effectual, but always ended with the shame and severe pjjnjshtnent of the rash undertakers. For example : 1. Andrew Horn, an eminent iaTyyer, in his book, entitled TTie Mirror of Jus- tices, (written in the reign of Edward I,, now near four hundred years ago,) in the first chapter and first section, records, that the renowned Saxon king, Alfred, caused four and forty justices to be hanged in one year, as murderers, for their fake judg- ments ; and there recites their particular crimes, most of them being, in one kind or other, infringements, violations, and encroachments, of and upon the rights and pri- vileges of juries. Amongst the rest, that worthy author tslls us, he hanged one Jus- tice Cadwine, because he judged one Hackwy to death, without the consent of all the jurors s for whereas he stood upon his jury of twelve men, because three of them would have saved him, this Cadwinf removed those three, and put others in their room on the jury, against the said Hackwy' s consent. Where we may ob- serve, that though at last twelve men did give a verdict against him, yet those so put upon him were not accounted his jurors, by reason all, or any of them, who were first sworn to try him, could not (by law) be removed, and others put in their stead ; and that such illegal alteration was then adjudged a capital crime, and forth- vidth the said Cadwine was hanged. 2. A second instance I shall give you, in the words of the Lord Chief Justice Coke. (5) "Against this ancient and fundamental law, (and in the face thereof,) there was, in the eleventh year of King Henry 7, cap. 3, an act of parliament obtained, (pxi fair pretences and a specious preamble, as to avoid divers mischiefs, &c.,) whereby it was ordained, ' that from thenceforth, as well justices of assize, as jus- tices of the peace, upon a bare information for the king before them made, without any finding or preseptnient by the verdict ©f twelve, men, should have full power and authority, by their discretions, to hear and determine all offences and contempts committed or done by any person or persons, against the form, ordinarice, or efiect, of any statute naade and not repealed, &c.' By colour of which act," (saith Cokp,) "shaking this fundamental law," (he means touching all trials to be by juries,) "it is not credible what HORRIBLE OPPRESSIONS and EXACTIONS,' to the undoing of MULTITUDES of people, were committed by Sir Richard Empspn, ■ 7 ' '■ ' '■ (3) 2 Institut. fol. 66. (4) 2 Institut. p. 74. (5) Coke, 2,part of Inst. fol. 51. 660 THE RIGHTS AND DUTIES OF JURYMEN. Knight, and Edmund Dudley, Esq., (being justices of the peace,) throughout Eng land ; and upon this unjust and injurious act (as commonly in like cases it falleth out) a new office was erected, and they made masters of the king's forfeitures." But not only this statute was justly, soon after the decease of Henry VII., re- pealed by the stat. of the 1 Hen. 8, cap. 6, but also the said Empsoti and Dud- ley (notwithstanding they had such an act to back them, yet it being against Magna Charta, and consequently void) were fairly executed for their pains ; and several of their under agents, as promoters, informers, and the like, severely pun- ished, for a warning to all others that shall dare (on any pretence whatsoever) in- fringe our English liberties.(6) For so the Lord Coke (7) having (elsewhere) with detestation mentioned their story, pathetically concludes : " Qui eorum vestigiis insistant, exitus perhorrescant." " Let all those who shall presume to tread their steps, tremble at their dreadful end." Other instances of a later date might be given, but I suppose these may suffice. Jurym. Yes, surely ; and by what you have discoursed of the long-continued use ofjuries, and the zealous regards our ancestors had not to part with them, I perceive that they were esteemed a special privilege. Be pleased, therefore, to acquaint me, wherein the excellency and advantages to the people, by that me- thod of trial above others, may consist. Barr. This question shows you have not been much conversant abroad, to ob- serve the miserable condition of the poor people in most other nations, where they are either wholly subject to the despotic arbitrary lust of their rulers ; or at best under such laws as render their lives, liberties, and estates, liable to be dis- posed of at the discretion of strangers appointed their judges ; most times mer- cenary, and creatures of prerogative ; sometimes malicious and oppressive ; and often partial and corrupt. Or suppose them ever so just and upright, yet still has the subject no security against the attacks of unconscionable witnesses. Yea, where there is no sufficient evidence, upon bare suspicions, they are obnoxious to the tortures of the rack, which often make an innocent man confess himself guilty, merely to get out of present pain. Is it not then an inestimable happiness to be born and live under such a mild and righteous constitution, wherein all these mis- chiefs (as far as human prudence can provide) are prevented ? where none can be condemned, either by the power of superior enemies, or the rashness or ill-will of any judge, nor by the bold affirmations of any profligate evidence ; but no less than twelve honest, substantial, impartial men, his neighbours, (who consequently cannot be presumed to be unacquainted either with the matters charged, the pri- soner's course of life, or the credit of the evidence,) must first be fully satisfied in their consciences, that he is guilty ; and so all unanimously pronounce upon their oaths ? Are not these, think you, very material privileges ? Jurym. Yes, certainly ; though I never so well considered them before. But now I plainly see our forefathers had, and we still have, all the reason in the world to be zealous for the maintenance and preservation thereof from subversion or encroachments, and to transmit them entire to posterity. For, if once this bank be broken down or neglected, an ocean of oppression, and the ruins of infinite numbers of people, (as in Empson and Dudley's days,) may easily follow, when on any pretence they may be made criminals, and then fined in vast sums, with pretext to enrich the king's coffers, but indeed to feed those insatiate vultures that promote such unreasonable prosecutions. But since you have taught me so much of the antiquity and excellency of juries, I cannot but crave the continuance of your favour, to acquaint me somewhat more particularly of their office axiA power by law. Barr. I shall gladly comply with so reasonable and just request. "A jury of twelve men are by our laws the only proper judges of the matter in issue before them."(8) As for instance, 1. That testimony which is delivered to induce a jury to believe, or not to be- lieve, the matter of fact in issue, is called in law evidence ; because thereby the (6) See Sir Rich. Baker's Chron. p. 854, printed in 1674. (7) 4 part Institut. fol, 41. (8) See Coke, 4th part of Inst. fol. 84. THE RIGHTS AND DUTIES OF JURYMEN. 661 jury may, out of many matters of fact, Evidere veritatem ; that is, see clearly the truth, of which they are proper judges. 2. When any matter is sworn, or [when] a, deed [is] read, or offered, whether it shall be believed, or not, or whether it be true, or false, in point of fact, the jurors are proper judges. 3. Whether such an act was done, in such or such a manner, or to such or such an intent, the jurors are judges. For the court is not judge of these mat- ters, which are evidence to prove or disprove the thing in issue. And therefore the witnesses are always ordered to direct their speech to the jury; theybeinf- the proper judges of their testimony. And in all pleas of the crown (or matters criminal) the prisoner is said " to put himself for trial upon his country ;" which is explained and referred by the clerk of the court, to be meant^of the jury, say- ing to them, " Which country you are." Jurym. Well then, what is the part of the king's justices, or the court ? what are they to take cognisance of, or do, in the trials of men's lives, liberties, and properties ? Barr, Their office, in general, is to do equal justice and right; particularly, 1. To see that the jury be regularly returned and duly sworn. 2. To see that the prisoner (in cases where it is permittable) be allowed his law- ful challenges. 3. To advise by law, whether such matter may be given in evidence, or not ; such a writing read, or not ; or such a man admitted to be a witness, &c. 4. Because by their learning, and experience, they are presumed to be best (Qualified to ask pertinent questions, and, in the most perspicuous manner, soonest to sift out truth from amongst tedious, impertinent circumstances and tautologies : they therefore commonly examine the witnesses in the court ; yet not excluding the jury, who of right may, and where they see cause, ought to ask them any necessary questions ; which undoubtedly they may lawfully do with modesty and discretion, without begging any leave. For if asking leave be necessary, it im- plies in the court a right when they list to deny it, and how then shall the jury know the truth ? And since we see, that counsel, who too often ( Pudet hsec opprobria nobis) for their fees strive only to bafRe witnesses, and stifle truth, take upon them daily to interrogate the evidence ; it is absurd to think that the jurors should not have the same privilege, who are upon their oaths, and proper judges of the matter. 5. As a discreet and lawful assistant to the jury, (9) they do often recapitulate and sum up the heads of the evidence : but the jurors are still to consider whether it be done truly, fully, and impartially ; for one mail's memory may sooner fail than twelve's. He may likevrise state the law to them ; that is, deliver his opinion where the case is difficult, or they desire it. But since, ex facto jus oritur, all matter of Jaw arises out of matter of fact, so that till the fact is settled there is no room for law : therefore all such discourses of a judge to a jury are, or ought to be, hypo- thetical, not coercive ; conditional, and not positive, viz. : " If you find the fact thus or thus (stiE leaving the jury at liberty to find as they see cause) then you are to find for the pkintifl!"; but if you find the fact thus, or thus, then you are to find for the defendant, or the like ;" guilty, or not guilty, in cases criminal. Lastly, they are to take the verdict of the jury, and thereupon to give judgment according to law. For the office of a judge (as Coke well observes) is jus dicere, noi jus dare; not to make any laws by strains of wit, or forced interpretations ; but plainly, and impartially to declare the law already established Nor can they re- fuse to accept the jury's verdict when agreed : for if they should, and force the jury to return, and any of them should miscarry for want of accommodation, it would undoubtedly be murder; and in such case the jury may, without crime,- force their liberty ; because they are illegally confined, (having given in their verdict, and there- by honestly discharged their office,) and are not to be starved for any man's pleasure. Jurym. But I have been told, that a jury is only judge of naked matter of fact, (9) Vaughan's Reports in Bushell's case, fol. 144. 662 THE RIGHTS AND DUTIES OF JURYMEN. and are not at all to take upon them to meddle with, or regard, matter of law, but leave it wholly to the court. Barr. 'Tis most triie, jurors are judges of matters of fact: that is their proper province, their chief business ; but yet not excluding the consideration of matter of law, as it arises out of, or ig complicated with, and influences the fact. For to say, they are not at all to meddle with, or have respect to, law, in giving their verdicte, is not only a false position, and contradicted by every day's experience ; but aJso a very dangerous and pernicious one ; tending to defeat the principal end of the institution of juries, and so subtilly to undermine that which was too strong to be battered down. 1. It is false : for, though the direction, as to matter of law separately, may be- long to the judge, and the finding the matter of fact does, peculiarly, belong to the j ury ; yet must your jury also apply matter of fact and law together ; and from their consideration of, and a right judgment upon both, bring forth their verdict : for do we not see in most general issues, as upon not guilty — pleaded in trespass, breach of the peace, or felony, though it be matter in law whether the party be a trespasser, a breaker of the peace, or a felon ; yet the jury do not find the fact of the case by itself, leaving the law to the court ; but find the party guilty, or not guilty, gene- rally ? So as, though they answer not to the question singly, what is law 1 yet they determine the law, in all matters, where issue is joined. So likewise is it not every day's practice, that when persons are indicted for murder, the jury not only find them guilty, or not guilty ; but many times, upon hearing, and weighing of circumstances, bring them in, either guilty of murder, manslaughter, per infortu- nium, or se defendendo, as they see cause ? Now, do they not, herein, coraphcately resolve both law and fact ? And to what end is it, that when any person is prose- cuted upon any statute, the statute itself is usually read to the jurors, but only that they may judge, whether, or no, the matter be within that statute ? But to put the business out of doubt, we have the suiTrage of that oracle of law, Littleton, who in his Tenures, sect. 368, declares, " That if a jury will take upon them the knowledge of the law upon the matter, they may." Which is agreed to Hkewise by Coke, in his comment thereupon. (10) And therefore it is false to say that the jury hath not power, or doth not use frequently to apply the fact to the law ; and thence taking their measures, judge of, and determine, the crime, or issue, by their verdict.(ll) 2. As juries have ever been vested with such power by law, so, to exclude them from, or disseise them of the same, were utterly to defeat the end of their institu- tion. (13) For then, if a person should be indicted for doing any common innocent (10) Before the present disputes arose, an able writer of our own times considers this as a settled and allowed rule. See Blackstone's Commentaries, vol. i. p. 8 ; vol. iii. p. 377, 378, particularly vol. iv. p. 354, 355, 4th ed. (11) Not only the express assertion of lawyers — and the practice of the courts, prove, that juries are authorized to determine the law, so far as it relates to the fact; but, in the third place, the words, in which verdicts must be given, indicate, that they have this power. If juries had beefa appointed to judge of fact only, the words " done," or " not done," or words of a like import, would have been substituted for the words " guilty," or " not guilty." How- ever, as our ancestors have placed it in their option to determine the law, so far as it is con- nected with the fact ; the language of their verdicts comprehends, when necessary, their sen- timents upon both. If ah action is said to be criminal, it is necessary to determine whether the action happened :^so that when a jury declares that a man is guilty, the fact is implied; because they cannot affix guilt, where there is no fact. When a jury declares a man not guilty, the determination of the fact is left tmcertain; because it is unnecessary ; for the law concerns itself with actions, only so far as they are criminal. (12) Prom the doctriVie, that juries, in the case of libels, are not judges of law, as well as fact, necessarily flows the following absurdity; viz., that it is the duty of juries to declare men guilty, or not guilty, in whom they perceive neither guilt or innocence. — Again : if, be- cause a circumstance is established as a fact, it is to be reputed as a crime, every incident which happens, is a crime. Now, if printing and publishing only be criminal, it is criminal to print and publish the book of Common Prayer, and the Bible. It is hard to say, on what principles this right of juries can be disputed. " If jurymen, because not bred to the law, are supposed incapable of knowing what is, or what is not, law; it follows that none but lawyers can justly be punished for a breach of thfe law: for, surely, that man is rather unfortunate, than faulty, who ignorantly transgresses the law." — Besides, if it is wise to vest the determination of law, where it concerns facts, in the jury, when any civil or criminal suit is in question ; certainly it is wise to intrust the jury with the same THE RIGHTS AND DUTIES OF JURYMEN. 663 act, if- it be but clothed, and disguised, in the indictment, with the name of treason, or some other high crime, and proved, by witnesses, to have been done by him ; the jury, though satisfied in conscience, that the fact is not any such offence as it is called, yet because (according to this fond opinion^ they have no power to judge of law, and the fact charged is fully proved, they shall, at this rate, be bound to find him guilty ' and being so found, the judge may pronounce sentence against him, for he finds him a convicted traitor, &c., by his peers. And thus, as a certain physician boasted, that he had killed one of his patients with the best method in the world ; so here should we have an innocent man hanged, drawn, and quartered, and all ac- cording to law. Jurym. God forbid that any such thing should be practised ! and indeed I do not very fuUy understand you. Barr. I do not say it ever hath been, and I hope it never will be practised : But this I will say, that according to this doctrine, it may be ; and consequently juries may thereby be rendered, rather a snare, or engine of oppression, than any advan- tage or guardian of our legal hberties against arbitrary injustice ; and made mere properties to do the drudgery, and bear the blame of unreasonable prosecutions. And since you seem so duU as not to perceive it, let us put an imaginary case ; not in the least to abet any irreverence towards his majesty, but only to explain the thing, and show the absurdness of this opinion. — Suppose then a man should be indicted. For that he, as a false traitor, not having the fear of God before his eyes, &c., did, traitorously, presumptuously, against his allegiance, and with an intent to affront his majesty's person, and government, pass by such, or such, a royal statue, or effigies, with his hat on his head, to the great contempt of his majesty and his authority, the evil example of others, against the peace, and his majesty's crown and dignity. Being hereupon arraigned, and having pleaded not guilty, suppose that sufficient evidence should swear the matter of fact laid in the indictment, viz. : That he did pass by the statute, or picture, with his hat on ; now imagine yourself one of the jury that were sworn to try him ; — ^what would you do m the matter ? Jurym. Do ? why I should be satisfied in my conscience that the man had not, herein, committed any crime, and so I Would bring him in, not guilty. Barr. You speak as any honest man would do : but I hope you have not forgot the point we were upon. Suppose therefore, when you thought to do thus, the court, or one of your brethren, should take you up, and tell you, that it was out of your power so to do : " For look ye (saith he) my masters ! we jurymen are only to find matter of fact ; which being fully proved, as in this case before us it is, we must find the party guilty. Whether the thing be treason, or not, does not belong to us to inquire ; it is said so here, you see, in the indictment ; and let the court look to that, they know best. We are not judges of law. Shall we meddle with niceties and punctihos, and go contrary to the directions of the court ? So perhaps we shall bring ourselves into a prsemunire, (as they say,) and perhaps never be suffered to be jurymen again. No, no, the matter of fact you see is proved, and that is our business ; we must go according to our evidence, we cannot do less : truly it is something hard, and I pity the poor man, but we cannot help it," &c. After these notable documents, what would you do now ? Jurym. I should not tell what to say to it ; for I have heard several ancient jury- men speak to the very same effect, and thought they talked very wisely. Barr. Well then, would you consent to bring in the man guilty ? Jurym. Truly I should be somewhat unwilhng to do it ; but I do not see which way it can be avoided, but that he must be found guilty of the fact. Barr. God keep every honest body from such jurymen ! Have you no more regard to your oath ? to your conscience ? to justice ? to the life of a man ? Jurym. Hold ! hold ! perhaps we would not bring him in guilty generally, but only guilty of the fact ; finding no more, but guilty of passing by the statue with his hat on. . . ; Barr, This but poorly mends the matter, and signifies little or nothing : for such power, in all suits which particularly concern the state : because, in such suits, the determi- nation is always of more consequence, and judges are more likely to be under an influence which is injurious to the rights of the people. 664 THE RIGHTS AND DUTIES OF JURYMEN. a finding hath generally been refused by the court, as being no verdict ; though, it is said, it was lately allowed somewhere in a case that required favour. But, suppose It were accepted, what do you intend should become of the prisoner ? Must not he be kept in prison till all the judges are at leisure, and viriUing, to meet and argue the business ? Ought you not, and what reason can you give why you should not, absolutely acquit, and discharge him ? Nay, I do aver, you are bound, by your oaths, to do it ; by saying with your mouths to the court, what your conscience can- not but dictate to yourselves, " not guilty." For pray, consider, are you not sworn, That you will well and truly try, and true deliverance make ?(13) There is none of this story, of matter of fact, distinguished from law, in your oath ; but you are, " well," that is, fully, and "truly," that is, impartially, to try the prisoner. So that if upon your consciences, and the best of your understanding, by what is proved against him, you find he is guilty of that crime wherewith he stands charged, that is, de- serving death, or such other punishment as the law inflicts upon an offence so de- nominated ; then you are to say, he is guilty. But if you are not satisfied, that either the act he has committed, was treason, or other crime, (though it be never so often called so) ; or that the act itself, if it were so criminal, was not done : then what remains, but that you are to acquit him ? for the end of juries is to preserve men from oppression ; which may happen, as well by imposing, or ruining them, for that as a crime, which indeed is none, or at least not such, or so great, as is pre- tended ; as by charging them with the commission of that, which, in truth, was not committed. And how do you well and truly try, and true dehverance make, when :ndeed you do but dehver him up to others to be condemned, for that which your- selves do not believe to be any crime ? Jurym. Well ; but the supposed case is a case unsupposable. It is not to be imagined that any such thing should happen ; nor to be thought that the judges will condemn any man, though brought in guilty by the jury, if the matter, in itself, be not so criminal by law. Barr. It is most true, I do not believe that ever that case will happen. I put it in a thing of apparent absurdity, that you might the more clearly observe the unrea- sonableness of this doctrine ; but withal I must tell you, that it is not impossible that some other cases may really happen, of the same, or the hke nature, though more fine, and plausible. And, though we apprehend not, that during the reign of his majesty that now is, (whose life God long preserve,) any judges will be made, that would so wrest the law ; yet what security is there, but that some successors may not be so cautious in their choice ? and, though our benches of judicature be at present furnished with gentlemen of great integrity, yet, there may one day happen some Tresilian, or kinsman of Empson's, to get in, (for what has been, may be,) who, Empson-like, too, shall pretend it to be for his master's service to increase the number of criminals, that his coffers may be filled with fines and forfeitures : and then such mischiefs may arise. And juries, having upon confidence parted with their just privileges, shall then, too late, strive to reassume them, when the number of iU precedents shall be vouched to enforce that as of right which in truth was at first a wrong, grounded on easiness and ignorance. Had our wise and wary ances- tors thought fit to depend so far upon the contingent honesty of judges, they needed not to have been so zealous to continue the usage of juries. Jurym. Yet still I have heard, that in every indictment, or information, there is always something of form, or law, and, something else, of fact ; and it seems reason- able, that the jury should not be bound up nicely to find every formality therein expressed, or else to acquit (perhaps) a notorious criminal. But if they find the essential matter of the crime, then they ought to find him guilty. Barr. You say true, and therefore must note, that there is a wide difference to be made between words of course, raised by implication of law, and essential words, that either make, or really aggravate, the crime charged. The law doth suppose and imply every trespass, breach of the peace, every felony, murder, or treason, to be done ®( et ^tmfS, with force and arms, &c. Now, if a person be indicted for murder by poison, and the matter proved; God forbid the jury should scruple the finding him guilty upon the indictment, merely because they do not find that (13) Of their verdict, this is meant. THE RIGHTS AND DUTIES OF JURYMEN. 665 part of it, as to force and arms, proved ! for that is implied as a necessary, or allow- able, fiction of law. But on the other side, when the matter in issue, in itself, and taken as a naked proposition, is of such a nature, as no action, indictment, or information will lie for it singly ; but it is worked up by special aggravations into matter of damage, or crime ; (as that it was done to scandalize the government, to raise sedition, to afiront authority, or the like, or with such or such an evil intent :) If these a^ravations, or some overt act to manifest such ill design, or intention, be not made out by evi- dence, then ought the jury to find the party, not guilty. For example : Bishop Latimer (afterwards a martyr in bloody queen Mary's days, for the Pro- testant religion) in his sermon preached before the most excellent King Edward VI. delivered these words : " I must desire your grace to hear poor men's suits yourseK The saying is now, ' That money is heard everywhere :' — ' If he be rich, he shall soon have an end of his matter.' Others are fain to go home with weeping tears for any help they can obtain at any judge's hand. Hear men's suits yourself, I require you in Grod's behalf; and put them hot to the hearing of these velvet-coats, these up-skips. Amongst all others, one especially moved me at this time to speak-: This it is, sir : A gentlewoman came and told me, that a great man keepeth certain lands of hers from her, and will be her tenant in spite of her teeth. And that in a whole twelvemonth she could not get but one day for the hearing of her matter, and the same day, when it should be heard, the great man brought on his side a great sight of lawyers for his council. The gentlewoman had but one man of law, and the great man shakes him so, that he cannot tell what to do. So that when the matter came to the point, the judge was a means to the gentlewoman, that she should let the great man have a quietness in her land. — I beseech your grace, that ye would look to these matters. . " And you, proud judges ! hearken what God saith in his holy book ; Audite illos, ita parvum, ut magnum. Hear them (saith he) the small as well as the great ; the poor as well as the rich ; regard no person, fear no man. And why ? Quia Domini judicium, est. The judgment is God's. Mark this saying; thou proud judge ; the devil will bring this sentence against thee at the day of doom. Hell " will be full of these judges, if they repent not, and amend : they are worse than the wicked judge that Christ speaketh of, Luke the 19th, that neither feared Ood, nor the world. Our judges are worse than this judge was ; for they will neither hear men for God's sake, nor fear of the world, nor importunateness, nor any thing else ; yea, some of them will command them to ward [prison] if they be importunate. I heard say, that when a suitor came to one of them, he said, ' What fellow is it, that giveth these folks counsel to be so inlportunate ? He deserves to be punished, and committed to ward.' Marry, sir, punish me then; it is even I that gave them counsel. I would gladly be punished in sufch a cause ; and if you amend not, I will cause them to cry out upon j-^ou still ; even as long as I hve." These are the very words of that good bishop, and martyr. Father Latimer : " But now-a-days the judges be afraid to hear a poor man against the rich ; insomuch, they will either pronounce against him, or so drive off the poor man's suit that he shall not be able to go through with it."(14) Jurym. Truly they are somewhat bold, but I think very honest ones^ But what signify they to our discourse ? Barr. Only this; — Suppose the judges of those times, thinking themselves aggrieved by such his freedom, should have brought an indictment against him, setting forth, that " falsely and maliciously, intending to scandalize the government, and the administration of justice, in this reahn, and to bring the same into contempt, he did speak, publish, and declare the false and scandalous words before recited." Jurym. I conceive, the judges had more wit than to trouble themselves about such a business. Barr. That is nothing to the purpose ; but suppose, I say, by them, or any body ielse, it had been done ; and his speaking the words had been proved ; and you had then been living, and one of the jury ? Jurym. I would have pronounced him not guilty, and been starved to death be- (14) See also Latimer's Third Sermon. 666 THE RIGHTS AND DUTIES OF JURYMEN. fore I would have consented to a contrary verdict ; because the word's in themselves are not criminal, nor reflecting upon any particulars ; and as for what is supposed to be laid in the indictment, or information, (" that they were published, or spoken, to scandalize the government, and the administration of justice, or to bring the same into contempt,") nothing of that appears. Barr. You resolve, as every honest, understanding, conscientious man, would do in the like case ; for when a man is prosecuted for that, which, in itself, is no crime, how dreadfully soever it may be set out, (as the inquisitors in Spain use to clothe innocent Protestants, whom they consign to the flames, with Sambenito's gar- ments all over bepainted with devils ; that the people beholding them in so helhsh a dress may be so far from pitying them, that they may rather condemn them in their thoughts as miscreants not worthy to live, though in truth they know nothing of their cause ;)-^yet, I say, notwithstanding any such bugbear artifices, an innocent man.ought to be acquitted, and not he and all his family ruined, and perhaps utterly undone, for words, or matters, harmless in themselves, and possibly very well in- tended, but only rendered criminal, by being thus hideously dressed up, and wrested with some far-fetched, forced, and odious construction. Jurym. This is a matter well worthy the consideration of all juries ; for indeed I have often wondered to observe the adverbs in declarations, indictments, and in- formations, in some cases to be harmless vinegar and pepper, and in others, henbane steeped in aquafortis. Barr. That may easily happen, where the jury does not distinguish legal im- plications, from such as constitute, or materially aggravate, the crime : for if the jury shall honestly refuse to find the latter in cases where there is not direct proof of them : (viz., that such an act was done falsely, scandalously, maliciously, with an intent to raise sedition, defame ihe government, or the like,) their mouths are not to be stopt, nor their consciences satisfied with the court's telhng them — You have no- thing to do with that ; it is only matter of form or matter of law : you are only to examine the fact, whether he spoke such words, wrote, or sold such a book, or the like. For now, if they should ignorantly take this for an answer, and bring in the prisoner guilty, though they mean and intend, of the naked fact, or bare act, only ; yet the clerk recording it demands a further confirmation, saying to them, thus ; " Well then, you say A. B. is guilty of the trespass, or misdemeanor, in man- ner and form as he stands indicted ; and so you say aU ?" To which the foreman answers for himself and his fellows, " Yes." Whereupon the verdict is drawn up — '■'■ furatores super sacramentum suum dicunt," &c. " The jurors do say upon their oaths, that A. B. maliciously, in contempt of the king and the government, with an ititent to scandalize the administration of justice, and to bring the same into con- tempt, or to raise sedition," &c., (as the words before were laid,) spake such words, pubhshed such a book, or did such an act, against the peace of*^ our lord the king, his crowii and dignity. Thus a VERDICT, so called in law, quasi veritatis, because it ought to be the voice, or saying, of truth (verS dictum) itself, may become composed in its material part of falsehood. Thus twelve men ignorantly drop into a perjury. And will not every conscientious man tremble to pawn his soul under the sacred and dreadful solem- nity of an oath, to attest, and justify a lie upon record to all posterity ? besides the wrong done to the prisoner, who thereby perhaps comes to be hanged, (and so the jury in faro conscientim are certainly guilty of his murder ;) or at least by fine or imprisonment, undone, with all his family, whose just curses will fall heavy on sucK unjust jurymen and all their posterity, that against their oaths and duty occasioned their causeless misery. And is all this, think you, nothing but a matter of for- mality ? Jurym. Yes, really, a matter of vast importance and sad consideration ; yet I think you charge the mischiefs done by such proceedings a little too heavy upon the jurors, Alas, good men ! they mean no harm ; they do but follow the directions of the court : if anybody ever happen to be to blame in such cases, it must be the judges. Barr. Yes, forsooth ! that's the jurymen's common plea ; but do you think it will hold good in the court of Heaven? 'Tis not enough that we mean no harm, but we must do none neither ; especially in things of that moment. Nor will igno- THE RIGHTS AND DUTIES OF JURYMEN. 667 ranee excuse, where it is affected, and whete duty obliges us to inform ourselves better, and where the matter is so plain and easy to be understood. As for the-judgeSj they have a fairer pleft than you, and ihay quickly return the burden back upoll the jurors : fof " we," may they say, " did nothing but our duty, acCotding to usual practice : the jury, his peers, has found the fellow guilty, Upoft theii* oaths, of such an odious crime, atid attended With such vile pfesumptio;is, and dangerous circumstances. They are judges a vfe took him as they presented him to uS ; and according to our duty pronounced the sentence, that the law inflicts in such cases, or set a finCj or ordered corporeal punishment upon him, which was very rnbderate, considering the crime laid in the indictment, or information, and of which they had so sworn him guilty. If he were innocent, or not so bad as represented, let his destruction lie upon the jiiryj" &Ci At this rate, if ever we should have an uncottaoitoable judge, might he argue ; and thus the guilt of the blood, or ruin, of an innocent man, when it is too late, shall be bandied to and fro, and shuflied off from the jury to the judge, and from the judge to the jury ; bat really sticks fasts to both, but especially on the jurors ; because the Very end of their institution was to prevent all dangers of such oppression ; and in every such Case, they do not only wrong their own souls, and irreparably injure a particular person, but also basely betray the liberties of their country in general. For as, without their ill compliance and act, no such mischief can happen ; — so by it, ill precedents are made, and the plague is increased ; honester juries are disheartened, or seduced by custom from their duties ; just privileges are lost' by disu&et : and perhaps within a while some of themselves may have a hole picked in their coats, and then they are tried by an- other jury, just as wise and honest, and so deservedly come to smart under the ruin- ating effects and example of their own folly and injustice. Jur'ym. You talk of folly, and blame jurymen, when indeed they cannot help it. They would sometimes find siich a person guilty, and such an one innocent, and are persuaded they ought so to do ; but the coUrt ovenliles, and forces them td do Otherwise; Barr. How, I pray ? Jurym. How ? why, did yoti never hear A jury threatened to be fined and im- prisoned if they did not comply yirith the sentiments of the court ? Barf, i have tead of such doings, but I never heard or saw it done : and indeed I do not doubt but our seats of justice are furnished with both better men, and better lawyers, than to use any such menaces, or duress ; for undoubtedly it is a base, and very illegal, practice. But, however, will any man that fears Godj nay, that is but an honest heathen, debauch his conscience and forswear himself; do his neighbour injustice ; betray his country's liberties, and consequently enslave himself, and his posterity ; aiid all this merely because he is hectored and threatened a little 1 Jurym. I know it should not s^ay with any : but, alas ! a prison is tertible to most Jlienj whatever the cause be ; and the fine may be such, if one shall refuse to comply, as niay utterly ruin one's family. Bart. Fright not yourself; there is no cause for this agu6-fit, to shake your con- science out of frame : if you are threatened, 'tis but brutumfulmen, lightning with- out a thunderbolt, nothing but big words ; for it is well known. That there is NEVER A Judge in England that can fine, or imprison, any Juryman in such a CASE. Jurym. Good sir ! I am half ashamed to heat a barrister talk thus : have not some in our memory been fined and imprisoned ? And sure that which has actually befen donCj is not altogether iriipossiblBi Barr. Yoiir servant, sif ! under favour of y6iir mighty wisdom and experience, when I said no judge could do it, I speak the hiore like a barrister ; for it is a maxim in law— /cf possumusf qUOd jure poissumus ; " a man is said to be able to do only so much as he feay lawfully do." But such fining, and imprisoning, can- not lawfully be done i the judges have nO fightj or power, by law, to do it ; and there- fore it ihay well be said, they 6anii6t, or are not able to do it< And Whereas you say, that some juries in our liiemory have been fined and im- prisoned, you may possibly say true ; but it is as true that it hath been only in our memory ; for no Such thing Was practised in ancient times ; for so I find it asserted 668 THE RIGHTS AND DUTIES OF JURYxMEN. by a late learned judge/ 15) in these positive words : " No case can be offered, either before attaints granted m general, or after, that ever a jury was punished by fine and imprisonment by any judge, for not finding according to their evidence, and his direction, until Popham's time ; nor is there clear proof, that he ever fined them for that reason, separated from other misdemeanors." And fol. 152, he affirms, " That no man can show, that a jury was ever punished upon an information, either at law, or in the Star Chamber, where the charge was only for finding against their evidence, or giving an untrue verdict ; unless imbracery, subornation, or the like were joined." So that, you see, the attempt is an innovation, as well as unjust; a thing unknown to our forefathers, and the ancient sages of the law : and therefore so much the more to be watched against, resisted, and suppressed, whilst young ; lest in time this crafty cockatrice's egg, hatched and fostered by ignorance, and pusillanimous compliance, grow up into a serpent too big to be mastered, and so blast, and destroy the first-born of our English freedoms. And indeed (blessed be God) it hath hitherto been rigorously opposed as often as it durst crawl abroad ; being condemned in parliament, and knocked on the head by the resolutions of the judges upon solemn argument : as by and by I shall demonstrate. Jurym. Well, but are jurors not liable then to fine or imprisonment, in any case whatsoever ? Barr. Now you run from the point ; we were talking of giving their verdict, and you speak of any case whatsoever. Whereas you should herein observe a neces- sary distinction, which I shall give you in the words of that learned judge last recited:(16) "Much of the office of jurors, in order to their verdict, is ministerul : as not withdrawing from their fellows after they are sworn ; not receiving from either side evidence not given in court ; not eating and drinking before their verdict ; refusing to give a verdict, &c., wherein if they transgress, they may be finable. But the verdict itself, when given, is not an act ministerial, but Judicial, and (supposed to be) according to the best of their judgment : for which they are not finable, nor to be punished, but by attaint ;" that is, by another jury, in cases where an attaint lies, and where it shall be found that, wilfully, they gave a verdict, false and corrupt. Now that juries, otherwise, are in no case punishable, nor can (for giving their verdict according to their consciences, and the best of their judgment) be legally fined or imprisoned by any judge, on colour of not going according to their evidence, or finding contrary to the directions of the court ; is a truth, both founded on un- answerable reasons, and confirmed by irrefragable authorities. Jurym. Those I would gladly hear. Barr. They are many, but some of the most evident are these that foUow. As for reasons : 1. A jury ought not to be fined, or imprisoned, because they do not follow the judge's directions ; for if they do follow his directions, they may yet be attainted: and to say they gave their verdict according to his directions is no bar but the judg- ment shall be reversed, and they punished for doing that, which if they had not done, they should (by this opinion) have been fined, and imprisoned, by the judge. Which is unreasonable. 2. If they do not follow his direction, and be therefore fined, yet they may be attainted, and so they should be doubly punished by distinct judicatories for the same offence ; which the common law never admits. 3. To what end is the jury to be returned out of the vicinage (that is, the neigh- ,bourhood) whence the issue ariseth ? to what end must hundredors be of the jury, whom the law supposeth to have nearer knowledge of the fact than those of the vicinage in general ? to what end are they challenged so scrupulously to the array and poll ? to what end must they have such a certain freehold, and be probi, et legates, homines, and not of affinity with the parties concerned, &c., if after all this, they implicitly must give a verdict by the dictates and authority of another man, under pain of fines, and imprisonment, when sworn to do it according to the best of their own knowledge 1 A man cannot see by another's eye, nor hear by another's ear ; no more can a man conclude, or infer, the thing to be resolved by another's (15) Lord Chief Justice Vaughan, in his Reports, fol. 146 (16) Vaughan's Reports, fol. 153. ( THE RIGHTS AND DUTIES OF JURYMEN. 669 understanding, or reasoning ; unless all men's understandings were equally alike. And if, merely in compliance, because the judge says thus, or thus, a jury shall give a verdict : though such their verdict should happen to be right, true, and just ; yet they being not assured it is so from their own understanding, are forsworn, at least infoTO conscientias. 4. Were jurors so finable, then every mayor, and bailiff of corporations, all stew- ards of leets, justices of peace, &c., whatever matters are tried before them, shall have verdicts to their minds, or else fine and imprison the jurors till they have ; so that such must be either pleased, humoured, or gratified, else no justice, or right, is to be had in any court. 5. Whereas a person by law may challenge the sheriff", or any juryman, if of kin to his adversary ; yet he cannot challenge a mayor, recorder, justice, &c., who 'tis possible wiU have a verdict for their kinsman, or against their enemy, or elce fine and imprison the jury till they have obtained it : so that by this means our lives, liberties, and properties, shall be solely tried by, and remain at the arbitrary disposal of every mercenary, or corrupted justice, mayor, bailiff, or recorder, if any such should, at any time, get into office. I 6. 'Tis unreasonable that a jury should be finable on pretence of their going against their evidence ; because it can never be tried, whether or no in truth they did find with, or against, their evidence, by reason no writ of error lies in the case. 7. Were jurymen liable to such arbitrary fines, they would be in a worse condi- tion than the criminals that are tried by them ; for in all civil actions, informations, and indictments, some appeals, or writs of false judgment, or of error, do lie into superior courts to try the regular proceedings of the inferior. But here can be no after-trial, or examination ; but the juryman (if fining at all were lawful) must either pay the fine, or lie by it; without remedy to decide, whether in his particu- lar case he were legally fined, or not. 8. Without a fact agreed, it is as impossible for a judge, or any other, to know the law, relating to that fact, or direct concerning it, as to know an accident that hath no subject ; for as, where there is no law, there is no transgression, so where there is no transgression, there is no place for law : for " the law (saith divine autho- rity) is made for the transgressor." And as Coke tells us, £x facto jus oritur ; upon stating the fact or transgression, matter of law doth arise, or grow out of the root of the fact. Now the jury being the sole judges of fact, and matter in issue before them, not finding the fact on which the law should arise, cannot be said to find against law, which is no other than a superstructure on fact : so that to say they have found against the law, when no fact is found, is absurd ; an expression insignificant, and unintelligible. For no issue can be joined of matter in law ; no jury can be charged with the trial of matter in law barely; no evidence ever was, or can be, given to a jury, of what is law, or not : nor can any such oath be given to, or taken by a jury, to try matter in law ; nor does an attaint lie for such oath, if false, &c. But if, by finding against the directions of the court in matter of law, shall be understood, that if the judge, having heard the evidence given in court, (for he can regularly know no other, though the jury may,) shall tell the jury upon this evidence, the law is for the plaintiff, or for the defendant, and the jury are, under pain of fine, and imprisonment, to find accordingly ; then it is plain, the jury ought of duty so to do. Now if this were true, who sees not that the jury is but a trou- blesome delay, of great charge, much formality, and no real use in determining right, and wrong, but mere echoes to sound back the pleasure of the court ; and consequently, that trials by them might be better abolished than continued ? which is at once to spit foUy in the faces of our venerable ancestors, and enslave our pos- terity. 9. As the judge can never direct what the law is in any matter controverted, without first knowing the fact ; so, he cannot, possibly, know the fact but froin the evidence which the jury have : but he can never fully know what evidence they have ; for besides what is sworn in court, (which is all that the judge can know,) the jury, being of the neighbourhood, may, and oft-times do, know something of their own knowledge, as to the matter itself, the credit of the evidence, &c., which may justly sway them in delivering their verdict ; and which self-knowledge of theirs is so far countenanced by law, that it supposes them capable thereby to try 670 THE RIGHTS AND DUTIES OF JURYMEN. , the matter in issue, (and so they must,) though no evidence were given, on either side, in court. As when any man is indicted, and no evidence comes against him, the direction of the court always is, " You are tq acquit him, unless of your own knowledge you know him guilty ;" so that jsven, in that case, they may find him guilty, without any witnesses. Now how absurd is it to think, that any judge has power to fine a jury for going against their evidence, when he that so fijieth, know- eth perhaps nothing of their evidence at ^11, (as in the last case,) or at least but some part of it ? For how is it possible he §hpuld lawfully punish them fo? that which it is impossible for him to know ? Lastly, Is any thing more common, than for two lawyers, or judges, to deduce contrary and opposite conclusions out of the same case in law ? And why then may not two men infer distinct conclusions from the same testimony ? And conse- quently, may not the judge, and jury, honestly differ in their opinion or result from the evidence, as well as two judges may, which often happens ? And shall the jurymen, merely for this difference of apprehension, merit fine, and imprisonment, because they do that which they canjiot otherwise do, preserving their oath and integrity ? especially when by law they are prg^iyaed to know better, and much more of the business, than the judge does, as aforesaid. Are not all these gross contradicting absurdities, and unworthy (by any man that deserves a gown) to be put upon the law of England ; which has ever owned right reason for its parent, and dutifully submitted to he guided thereby ? Jurym. If the law, as you say, be reason, then undoubtedly this practice of fining of juries is most illegal, since there cannot be any thing more unreasonable : but what authorities have you. against it ? Barr. You have heard it proved to be a modern upstart encroachment, so you cannot expect any direct or express condemnation of it in ancient times ; because the thing was not then set on foot. And by the way, though negative arguments are not necessarily conclusive, yet that we meet w^th no precedents of old of juries fined, for giving their verdict contrary to evidence, or the sense of the court, is a violent presumption that it ought rjot to be done : for it cannot be supposed, that this latter age did first of all discover that verdicts were many times not ac- cording to the judge's opinion and liking. Undoubtedly they saw that as well we ; but knowing the same not to be any crime, or punishable by law, were so modest and honest as not to meddle with it. However, what entertainment it bath met with, when attempted in ouj times, I shall show you in two remarkable cases. 1. When the late Lord Chief Justice Keeling had attempted something of that kind, it was complained of, and highly resented by the then parliament; as ap- pears by this copy of their propeedings thereupon, taken out of their journal, as follows : Die Mercurii, 11 Becembris, 1667, "The house resumed the hearing of the rest of the report touching the matter of restraint upon juries, and that upon the examination of divers witnesses in several cases of restraints put upon juries by the Lord Chief Justice Keeling ; and thereupon resolved as followeth: "First, Thattheproceedingsof the said lord chief justice, in the cases now re- ported, are innovations in the trial of men for their Hves and liberties. And that he hath used an arbitrary and illegal power, which is of dangerous consequence to the lives and liberties of thg people of England, and tends to the introducing of an arbitrary government. " Secondly, That in the place of judicature the lord chief justice hath under- valued, vilified and contemned Magna Charta, the great Preserver of our lives, freedom, and property. " Thirdly, That he be brought to trial in order to condign punishment, in such manner as the house shall judge most fit and requisite." Bie Veneris, 13 BecemMs, 1667. "Resolved, &c.. That the precedejits and practice pf fining, or imprisonino- of ]ulors for giving their verdicts, are illegal." ^ THE RIGHTS AND DUTIES OV JURYMEN. 671 Here you see it branded in parliament ; next you shall see it formally con- demned on a solemn argument by the judges. The case [is] thus. At the sessions for London, Sept. 1670, William Penn, and William Mead, (two of the people commonly called Cluakers) were indicted, " for that they with others, to the number of three hundred, on the 14th Aug. ^2 Regis, in Grace- church street, did with force and arms, &c., unlawfully, and tumultiaevisly assem- ble, and congregate themselves together to the disturbance of the peace ; and that the said William Penn did there preach, and spea^ to the said Mead, and other persons in the open street; by reason whereof, a great concourse and tumult of people, in the street aforesaid then, and there, a long time did remain, and con- tinue, in contempt of our said lord the king, and of his law, to the great disturb- ance of his peace, to the great terror, and disturbance of many of his liege people and subjects, to the ill-example of all others in the like case offenders, and against the peace of our said lord the king, his crown, and dignity." The prisoners pleading not guilty, it was proved, that there was a meeting at the time in the indictment mentioned, in Gracechurch street, consisting of three, or four hundred people, in the open street ; that William Penn w^s speak- ing, or preaching to them ; but what he said, the witnesses (who were officers and soldiers sent to disperse them) could not hear. This was the effect of the evi- dence ; which Sir John Howel, the then recorder, (as I find in the print of that trial,) was pleased to sum up to the jury in these words : " You have heard what the indictment is ; it is for preaching to the people in the street, and drawing a tumultuous company after them, and Mr. Penn was speaking. If they should not be disturbed, you see they will go on. There are three or four witnesses that have proved tbis — that he did preach there, that Mr. Mead did allow of it. After this you have heard by Substantial witnesses what Is said against them : Now we are upon the matter of fact, which you are to keep to, and observe, as what hath been fully sworn, at your peril." This trial began on the Saturday ; the jury retiring, after some considerable \ime spent in debate, came in, and gave this verdict, — "Guilty of -speaking in Gracechurch street." At which the court was offended, and told them, they "had as good say nothing;" adding, — "Was it not an unlawful assembly ? you mean he was speaking to a tumult of people there ?" But the foreman saying, what he had delivered was all he had in commission ; and others of thein affirming, that they allowed of no such words as an " unlawful assembly" in their verdict ; they were sent back again, and then "brought in a verdict in writing subscribed with all tbeir hands, in these words : " We,fhe jurors hereafter named, dp find William Penn to be guilty of speaking, or preaching, to an assembly met together in Grace- church street, the Uth of Aug. 1670. 4nd William Mead not guilty of the said indictment."iY1) • This the court resented still worse, and therefore- sent them back again, .nnd adjourned till Sunday morning; but then too they insisted on the same verdict ; so the'couTt adjourned till Monday morning; and then the jury bj-ought in the prisoners generally " Not guilty ;" which was recorded and, allowed of. But jnir mediately the court fined them forty marks a man, and to lie in prison till paid. Being thus in custody, Edw. Bushel, one of the, said jurors, on the ninth of No- vember following, brought his habeas corpus in the court of Common Pleas. On which the sheriffs of London made return, "That he was detained by virtue of an order of sessions, whereby a fine of forty marks was set upon hin;, and eleven others, particularly named ; and every of them being jurors sworn to try the issues joined between the king, and Penn and Mead, for certain trespasses, con- tempts, unlawful assemblies, and tumults, and who then and thgre did acquit the said Penn and Mead of the same, against the law of this kingdom, and againsl full and manifest evidence, and against the direction of the court in matter of law of and upon the premises openly in court to them given and declared; and that ( 17) INoTB.f— Though this juiy, far their excellent example of courage, and constaney, de- serve the commendation of every good Englishman ; yet, if they had been, better advised, they might have brought the prisoncrfs in not guilty at first, and saved themselves the trouble and inconveniencies of these two nights' restraint. See State Trials, vol. ii. p. 606, in fol. Vide note to page 641, 672 THE RIGHTS' AND DUTIES OF JURYMEN. it was ordered they should be imprisoned till they severally paid the said fine, which the said Bushel not having done, the same was the cause of his caption and detention."(18) The court coming to debate the validity of this return, adjudged the same insuf- ficient: for, 1. The words,— " against full and manifest evidence," was too gene- ral a clause :. the evidence should have been fully, and particularly, recited; else how shall the court know it was so full and evident ? they have now only the judg- ment of the sessions for it that it was so : but, said the judges, " our judgment ought to be grounded upon our own inferences, and understandings, and not upon theirs." 2. It is not said, that they acquitted the persons indicted against full and manifest evidence, corruptly, and knowing the said evidence to be full and manifest. For otherwise it can be no crime ; for that may seem full and manifest to the court which does not appear so to the jury. 3. The other part of the return : viz., that " the jury had acquitted those in- dicted, against the direction of the court in matter of law," was also adjudged to be nought, and unreasonable ; and the fining the juries for giving their verdict in any case concluded to be illegal, for the several reasons before recited, and other autho- rities of law urged to that purpose ; and all the precedents and allegations brought to justify the fine, and commitment, solidly answered. Whereupon the chief jus- tice dehvered the opinion of the court, " That the cause of commitment was insuffi- cient ;" and accordingly the said Bushel, and other his fellow-prisoners, were dis- charged, and left to the common law for remedy and reparation of the damages, by that tortuous, illegal imprisonment, sustained. Which case is (amongst others) reported by that learned judge Sir John Vaughan, at that time lord chief justices of the Common Pleas ; setting forth all the arguments, reasons, and authorities, on which the court proceeded therein"; from which I have extracted mo'st of the reasons which I before recited for this point, and, for the greatest part, in the very words of that reverend author. Jurym. This resolution hath, one would think, (as you said,) knocked this illegal practice on the head, beyond any possibility of revival ; but may it not one day be denied to be law, and the contrary justified ? Barr. No such thing can be done without apparently violating. and subverting all law, justice, and modesty : for though the precedent itself be valuable, and with- out further inquiry is wont to be allowed, when given thus deliberately upon solemn debate by the whole court ; yet, it is not only that, but the sound, substantial, and everlasting reasons, whereon they grounded such their resolves, that vdU, at all times, justify fining of jijries in such cases to be illegal. Besides, as the reporter was most considerable, both in his quahty as lord chief justice, and for his parts, soundness of judgment, and deep learning in the law ; so such his book of Reports is approved and recommended to the world, (as appears b}"^ the page next after the epistle,) by the right honourable the present lord chancellor of England ; Sir William Scroggs, now lord chief justice of England ; my Lord North, chief justice of the Common Pleas ; and, in a word, by all the judges of England at the time of pub- lishing thereof! so that it cannot be imagined how any book can challenge greater authority, unless we should expect it to be particularly confirmed by act of parlia- ment. Jurym. You have answered all my scruples : and since I see the law has made so good provision for jurymen's privileges and safety ; God forbid any juryman should be of so base a temper, as to betray that, otherwise, impregnable fortress, wherein the law hath placed him to preserve, and defend, the just rights and fiber- ties of his country, by treacherously surrendering the same into the hands of vio- lence, or oppression, though masked under ever so fair stratagems and pretences. For my own part, I shall not now decline to appear according to my summons ; and therefore (though I fear I have detained you too long already) shall desire a little more of your direction about the office of a juryman in particular, that I may up- rightly, and honestly, discharge the same. Barr. Though I think, from what we have discoursed, being digested, and im- proved, by your own reason, you may sufficiently inform yourself; yet, to gratify (18) See Bushel's case in Vaughan's Reports at large. THE RIGHTS AND DUTIES OF JURYMEN. 673 yowr request, I shall add a few brief remarks, as well of what you ought cautiously to avoid, as what you must diligently pursue, and regard, if you would justly, and truly, do your duty. First, As to what you must avoid. 1. I am very confident, that you would not willingly violate the oath which you take : but it is possible that there are such, who as frequently break them as take them, through their careless custom on the one hand, or slavish fear on the other ; against whom I would fully caution you ; that you may defend yourself, and others against any enemies of your country's liberties, and happiness, and keep a good con science towards God and towards man. 2. It is frequent, that when juries are withdrawn, that they may consult of their verdict, they soon forget that solemn oath they took, and that mighty charge of the life and liberty of men, and their estates, whereof then they are made judges ; and that, on their breath, not only the fortunes of the particular party, but perhaps the preservation, or ruin, of several numerous families does solely depend : Now I say, without due consideration of all this ; nay sometimes without one serious thought, or consulted reason, ofiered pro or con, presently the foreman, or one, or two, that caU themselves antient jurymen, (though in truth they never knew what belongs to the place more than a common school-boy,) rashly deliver their opinions ; and all the rest, in respect to their supposed gravity and experience, or because they have the biggest estates, or to avoid the trouble of disputing the point, or to prevent the spoil- ing of dinner by delay, or some such weighty reason, forthwith agree blindfold, or else go to holding up of hands, or telling of noses, and so the major vote carries away captive both the reason, and the conscience of the rest ; thus trifling with sacred oaths, and putting men's Hves, liberties, and properties (as it were) to the hap-hazard of cross or pile. This practice, or something of the like kind, is said to be too customary amongst some jurors, which occasions such their extraerdinary des- patch of the weightiest or most intricate matters ; but there will come a time when they shall be called to a severe account for their haste and negligence ; therefore have a care of such fellow-jurors. 3. Such a slavish fear attends many jurors, that let but the court direct to find guilty, or not guilty, though they themselves see no just reason for it ; yea, oft-times though their own opinions are contrary, and their consciences tell them it ought to go otherwise ; yet, right, or wrong, accordingly they will bring in their verdict ; and, therefore, many of them never regard seriously the course, and force, of the evidence ; what, and how, it was delivered, more, or less, to prove the indictment, &c., but as the court sums it up, they find : as if juries were appointed for no other purpose but to echo back what the bench would have donie. Such a base temper is to be avoided, as you would escape being forsworn, even though your verdict should be right : for since you do not know it so to be, by your own judgment, or understanding, you have abused your oath, and hazarded your own soul, as well as your neighbour's life, liberty, or property ; because you blindly depend on the opinion, or perhaps passion of others, when you were sworn well and truly to try them yourselves. Such an implicit faith is near of kin to that of some in religion, and, at least, in the next degree, as dangerous. (19) • 4. There are some that make a trade of being jurymen ; that seek for the office ; use means to be constantly continued in it ; will not give a disobliging verdict, lest they should be discharged, and serve no more : these standing jurors have certainly some iU game to play. There are others that hope to signalize themselves, to get a better trade, or some preferment by serving a turn. There are others that have particular piques, and a humour of revenge against such or such parties : if a man be but miscalled by some odious name, or said to be of an exploded faction — straight (19) Though judges are likely to be more able than jur)'men, yet jurymen are likely to be more honest than judges ; especially in all cases where the power of the prerogative, or the rights of the people, are in dispute. Our rights, therefore, both as individuals, and as a people, are more likely to be secure, while juries follow the result of their own opinion ; for less danger will arise from the mistakes of jurymen than from the corruption of judges. Besides, improper verdicts will but seldom occur; since juries will avail themselves of the abilities and learning of the judges, by consulting them upon all points of law; and thus to the advantage of information may add their own impartiality. 2s 674 THE RIGHTS AND DUTIES OF JURYMEN. they cry, hang him, find him guilty, no punishment can be too bad fe/r suCh a Tel- low ; in such a case they think it merit to stretch an evidence on the tenter-hooks, and strain a point of law, because they fancy it makes for the interest of the govettf ment; as if injustice or oppression could in any case be for the true interest of government, when in truth nothing more weakens or destroys it. But this was an old stratagem, " If thou suffer this man to escape, thou shalt not be Csesar's friend :" when Caesar was so far from either needing, or thanking them for, any such bas-e services, that, had he but truly understood them, he would severely have punished their partiality and tyranny. All these, and the like pestilent biasses, are to be avoided and abominated by every honest juryman. But now as to the positive qualifications requisite. 1. You that are jurymen, shoul4, first of all, seriously regard the weight and importance of the office ; your own souls, other men's lives, liberties, estates, all that in this world are dear to them, are at stake, and in your hands ; therefore, con- sider things well before-hand, and come substantially furnished and provided with sound and well-grounded consciences, — with clear minds, free from malice, fear, hope, or favour ; lest, instead of judging others, thou shouldst work thy own con- demnation and stand in the sight of God, the Creator and Judge of all men, no better than a murderer or perjured malefactor. 2. Observe well the record, indictment, or information that is read, and the seve- ral parts thereof, both as to the matter, manner, and form. 3. Take due notice of, and pay regard to, the evidence offered for proof Tjf the indictment, and each part of it, as well to manner and form, as matter : and if you suspect any subornation, foul practice, or tampering hath been with the witnesses, or that they have any malice, or sinister design ; have a special regard to the cir- cumstances wr incoherences, of their tales, and endeavour, by apt questions, to sift out the truth or discover the villany. And, for your better satisfaction, endeavour to write down the evidence, or the heads thereof, that you may the better recall it to memory. 4. Take notice of the nature of the crime charged, and what law tbe prosecution is grounded upon, and distinguish the supposed criminal fact which is proved, from the aggravating circumstances which are not proved. 5. Remember that in juries there is no plurality of voices to be laUowed : seven cannot overrule, or, by virtue of majority, conclude five ; no, nor eleven one. But as the verdict is given in the name of all the twelve, or else it is void ; so every one of them must be actually agreeing, and satisfied in his particular understanding and conscience of the truth and righteousness of such verdict, or else he is forsworn. And, therefore, if one man differ in opinion from his fellows, they must be kept together ; till either they, by strength of reason or argument, can satisfy him, or he convince them. For he is not to be hectored, much less punished by the court into a compliance: for as the Lord Chief Justice Vaughan says well, (Rep. fol. 151,) " If a man differ in judgment from his fellows, whereby they are kept a day and a night, though his dissent may not in truth be so reasonable as the opinion of the rest that agree; yet, if his judgment be not satisfied, one disagreeing can be no more criminal, than four or five disagreeing with the rest." Upon which occasion the said author recites a remarkable case out of an ancient law-book : (41 Iss. p. 11.) " A juror would not agree with his fellows for two days, and being demanded bj' the judges if he would agree, said he would first die in prison ; whereupon he was committed, and the verdict taken : but upon better advice, the verdict of the eleven was quashed, and the juror discharged without fine ; and the justices said ' the way was to carry them in carts' (this is to be understood at assizes, where the judges cannot stay, but must remove in such a time into another county) 'until tier agreed, and not by fining them.' And as the judges erred in taking the ver- dict of eleven, so they did in imprisoning the twelfth." And therefore, you see, on second thoughts released him. 6. Endeavour, as much as your circumstances will permit, at your spare hours to read, and u nderstand, the fundamental laws of the country ; such as Magna Charta, the petition of right, the late excellent act for Habeas Corpus's, Home's Mirror of Justices, Sir Edw, Coke, in his 2d, 3d, and 4th parts of the Institutes of the law of THE RIGHTS AND DUTIES 6f JURYMEN. 675 England, and Judge Vaughan's Reports. These are books frequent to be had, and of excellent use to inform any reader, of competent apprehension, of the true liberties and privileges which every Englishman is justly entitled unto, and estated in, by his birthright ; as also the nature of crimes, and the punishments severally, and respectively inflicted on them by lavir ; the office and duties of judges, juries, and all officers arid ministers of justice, &C., which are highly necessaiy for every juryman, in some competent measure, to khow : for the law of England hath not placed trials by juries, to stand between men, and death or destruction, to so little purpose as to pronounce men guilty, without regard to the nature of the offence, or to what is to be inflicted thereupon. For want of duly understanding and considering these things, juries many times plunge themselves into lamentable perplexities ; as it befel the jury who were the triers of Mr. Udal, a ministefr, who, in the 32d year Of Queen Elizabeth, was indicted and arraigned, at Croydon in Sutry, (20) for high treason, for defeming the queen, and her government, irt a certain book entitled " A Demonstration of the Discipline, &c." And though there was no direct, but a scrafnbhng shadow of proof; and though the book, duly considet^d, contained no matter of treason, but certain words which by, a forced construction were laid to tend to the defamation of the government, and so the thing [wasJpTosetiUted unde* that name ; yet the jury not thinking that in pranoun6ing hito guilty thejr had upon their oifh pronounced him guilty of treason, arid to die as a traitor ; but supposing that they had only declared him guilty of niaking the book ; hereupon they brought him in guilty : but wheB, after the judge's sentence of death against him, vyhich the^ never in the least in- tended, they found what they had done ; thfey were edtifouhded in thernselves, and would have done any thing in the world to haye revoked that unwaiy pernicious verdict, when, alas ! it was too late. Dr. Fuller has this ^tty note on this gentle- man's conviction, "that it was conceived rigorous in the greofes^, which at best" (saith he,) " is cruel in the least degtee." And it seems so^ Q,ueeri Ulizeibeth thoxight it, for she suspended execution, and he died naturally. But his story survives, to warn all succeeding jurymen to endeavour better to understand #hat it is they do, and what the consequences thereof will be. 7. As there is nothing I have said inteJnded to encourage you to partiality, or tempt any juryman to a connivance at sin, and malefactorsj whereby those pests of society should avoid being brought to condign punishment, and so the law cease to be a terror to evil-doers, which were in him an horrible perjury, aind indeed a foolish pity, or crudelis misericofdia, a ciuel metcy ; (for Ae is highly injurious to the good, that absolves the bad,, when real crimes are provfad against theirt ;) so I must take leave to say, that in cases Where the matter is dubious,- both lawyers and: divines prescribe rather favour than rigour. Art eminerit and learned judge (21) of