fe Hs ah ii Kay & Brother, LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, 19 South Sixth Street, above Cheftnut Street, PHILADELPHIA. SS SS See ee Cornell Law Schanl Library RECOMMENDATIONS OF BINNS’S JUSTICE OF THE PEACE. al , ° Dean Sin: Philadelphia, January 28, 1840 _ The sheets of “ Binns’s Justice,” which you did me the honor to submit to my inspec- tion, have been carefully examined ; and though sensible that nothing detracts so much from the value of a recommendation as an apparent disposition to overpraise, I feel con- fident that the-book will fully bear me out in saying, it is a well-digested compend of all ae = necessary to qualify a young magistrate for a useful and honorable disharge of his unctions. It offers to him the fruits of long experience and accurate research ; and it opens to him’ @ repository of legal principles, with minute directions for their use, from which he may Saree whatever is necessary to conduct him safely in the new and untrodden path of his duty. . ; The Docket Entries, for instance, given as specimens of method in recording the general parts.and transactions of a suit—matters in which, more frequently than in any other, magistrates are at fault—though compendious, are sufficiently full; and a reasonable “attention to the marginal specimens of taxation, will guard the unwary from those inad- vertent charges of fees, which serve too often to put the magistrate in the power of the suitor, and to involve him in a contest about farthings, which may cost him dollars; to say nothing of the loss of character, which, right or wrong, follows an infliction of the penalty annexed to extortion. These, however, are comparatively trifling instances of the value of the book: as a manual, it will be more signally useful in furnishing a safe and ready guide jn the most complicated forms of proceedings, such as summary convictions, and many others. The matter is, for the most part, original, and supplies whatever has been omitted in other treatises. It will afford assistance, not only to the judicial magistrate, but to every county and township officer; and it will reward the citizen for a careful perusal of it, with much.exact knowledge of his civil and political rights, as well as of his correlative duties. Not doubting that the inculcation of moral principle which pervades the whole, will influence the character, and elevate the standing, of the magistracy, I am, dear sir, Your obedient servant, | JOHN B. GIBSON, Chief Justice of Pennsylvania. I fully concur in the above, MOLTON C. ROGERS, One of the Justices of the Supreme Court of Pennsylvania. -_—— I have seen a portion of Mr. Binns’s proposed publication, relative to: justices of the peace, and think it will furnish an excellent manual on the subject, more especially to the magistracy. It seems to me to be well adapted to the present wants of the commu- ity. a : THOMAS SERGEANT, “One of the Justices of the Supreme Court of Pennsylvania. Philadelphia, January 81, 1840. Juvcz Huston [of the Supreme Court of Penns ivanial presents his compliments to John Binns, Esq., and informs him that-since the sheets 0 his book were left for perusal, he has been too unwell to peruse much of it. He has been in court every day, but at home has been lying on a bed most of his time. He can, therefore, only say, that from the very limited inspection of the work, he has formed a very favorable opinion of it, and believes it will be what, from his knowledge of the author, and from the general character of the author, he, and the community, expected, viz.: a full and accurate trea: tise on the office and duties of a justice of the peace. February 1, 1840. (i) RECOMMENDATIONS OF THE SECOND EDITION. February 3, 1845. 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 lives. In affairs of magni- tude he will, of course, consult a professional adviser, but the ordinary transactions of business momentarily require a familiar knowledge of common-place principles, which he way wore readily obtain from the digested summary now offered to him, than from the scattered pages of a law-library, were it even at hand. For instance, the farmer, the laborer, the mechanic, or the shop-keeper, who attends to your instructions, will no longer be in danger of losing the price of his work or his goods, from ignorance of the few and simple elements of book-entries to charge a customer. These abstracts are not only accu- rately made, but adapted to popular apprehension; and I feel confident the work will supply, for the present, all that was wanted. Very truly, your obedient servant, . JOHN B. GIBSON, Chief Justice of Pennsylvania. To Mr. AtperMan 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*arrangement is capital, and you have taken great pains to insure its legal accuracy. It should be in the hands of every cg neue as well as young lawyer and man of business. I wish it general circulation, because I am confident it will be of great utility. You deserve the thanks of the community for this work. I have:no doubt it will live when you are dead. Every relation in life will find your book useful. : With respect, your obedient servant, THOS. BURNSIDE, One of the Justices of the Supreme Gourt of Pennsylvania, Alderman Joun Binns. RECOMMENDATION OF THE THIRD EDITION. From the Judges of the Supreme Court of Pennsylvania. Messrs. Kay & Broruer: Gentlemen: Binns’s 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 valu- able and well-digested matter, makes it all that the magistrate can desire. : JOHN B. GIBSON, Chief Justice of the Supreme Court, MOLTON C. ROGERS, T. BURNSIDE, R. COULTER, THOS. S. BELL, Justices of the Supreme Court. a BINNS’S JUSTICE, Magistrate's Daily Companion, f A TREATISE. OFFICE AND- DUTIES ALDERMEN AND JUSTICES OF THE PEACE, COMMONWEALTH OF PENNSYLVANIA, INCLUDING ALL THE REQUIRED FORMS OF PROCESS AND DOCKET-ENTRIES, AND EMBODYING NOT ONLY WHATEVER MAY BE DEEMED VALUABLE TO JUSTICES OF THE PEACE, BUT TO BANDLORDS, TENANTS AND GENERAL AGENTS ; AND MAKING THIS VOLUME WHAT IT PURPORTS TO BE, A SAFE LEGAL GUIDE FOR BUSINESS MEN. [ 7 BY JOHN BINNS, LATE ALDERMAN OF WALNUT WARD, IN THE CITY OF-PHILADELPHIA. \ 4 The Seberth Edition, REVISED, CORRECTED AND GREATLY ENLARGED gee ae BY OF FREDERICK C. BRIGHTLY, ESQ., ee 4 AUTHOR OF THE “UNITED STATES DIGEST ;” EDITOR OF “ PURDON’S DIGEST,” ETO, git PHILADELPHIA: KAY & BROTHER, 19 SOUTH SIXTH STREET, LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS. ‘1867. hd 570. Entered according to the Act of Congress, in the year 1862, by KAY & BROTHER, In the Clerk’s Office of the District Court of the United States, in and for the Eastern District 0 Pennsylvania. / MEARS & DUSENBERY, STEREOTYPERS. Lae: ‘ah. > Gy MPA TY SUN 9-9 799 Ladd |ABRARY PREFACE TO THE SEVENTH EDITION / BINNS’S JUSTICE, or Macisrrats’s Dairy Companion, has for many years been favorably known to the Legal Profession, and to the Magistracy of Pennsylvania; so much so as to have been pronounced by the unanimous certificate of the Judges of the Supreme Court, as “not only the best, but the only very good book that we have on the subject.” The enactment, however, of the Revised Penal Code, and the great changes that have been made in our Statute Law, since the publication of the Sixth Edition of this work in 1855, had rendered it, not only, no longer, what it professed to be, “a safe legal guide to business men,” but a guide which, if followed, might oftener lead astray, than conduct the inquirer upon the direct path of legal duty. This rendered necessary an entire revision of the work, which has been almost wholly re-written by the Editor of the Sixth Edition, who has not only remodelled the book and adapted it to the present state of the law, but has added many new Titles, not before contained in it. The- Forms and Docker Entrizs, as also the Bills of Costs, have been revised and made .to correspond with the requirements of the recent statutes; and it may now v1 PREFACE TO BINNS’S EDITION. again be confidently relied on as a safe Guide to the Magistrate and Business Man. In this book, and its companion, “ Dunuar’s Forms,” (the repu- tation of which is so well established as to need no eulogy) the Justice of the Peace will find all the information necessary to a correct discharge of the important duties confided to him by the Laws of Pennsylvania. The Ninth Edition of Purdon’s Digest, published in 1862, has been referred to, whenever it became necessary to cite an Act of Assembly; and the Decisions of the Supreme Court have been incorporated to the 3d volume of Wright’s State Reports inclusive. F. C. B. PaiwapEtraia, 15 August 1862. PREFACE TO BINNS’S JUSTICE. 4 t Lone and deeply impressed with the influence which magistrates must necessarily exercise over the public mind, it has appeared to the writer, that the man who should most effectually turn that influence to the insurance of the public peace, and of honesty and fair dealing, between man and man, would render an essential and important service. Justices of the peace who understand their rights, and discreetly perform their duties, obtain the respect of their fellow-citizens. In the volume now presented to the public, it is hoped, and believed, that the law is plainly laid down; that honest and honorable feelings are cherished; and that everything calculated to encourage a spirit of contention or litigation,is frowned upon. The wish of the writer is to place the magistracy in high and enviable seats; there, to exhibit examples of stern integrity; respected by all; feared only by evil-doers. It is not presumed that much is accomplished in this volume; yet, it is confidently hoped that whatever may be its influence, it will be found on the side of the Constitution and the Laws; sturdily contending, for “ Virtue, Liberty, and Independence.” The writer is conscious of the want of many, and not incon- siderable, qualifications to prepare a work of the character he has ventured to undertake and to complete. He has labored long and faithfully, and with good intentions: he trusts that the industry and experience thus devoted, has, in some measure, compensated for the want of early professional habits and acquirements. He has been cheered on his way by encouragement from many ; whose encouragement did him honor, while it inspired him with hope and confidence. He is especially under obligations to the ° (vii) viii PREFACE TO BINNS’S JUSTICE. gentlemen of the bar. They have not only freely bestowed their advice, and corrected his errors, but some of them, with a friend- liness and regard, which he will never forget, have given their time, and their talents, and their knowledge, to contribute to the more perfect completion of this work. Care shall be taken from time to time, to.note whatever improve- ments or additions shall be proposed, or which may suggest them- selves; to the end, that by unwearied attention, and constant watchfulness, the work may be made to deserve public 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, generally, 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 directions so minute and particular, that they may be regarded as of a character too humble and familiar to find a place in this volume. The same feelings have induced the writer, in several places, to reiterate principles and directions, which he regards as especially valuable. It has been felt that many will come to the reading -f 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 that influence may be, it will be on the side of justice. JOHN BINNS. PuruapeLpuia, 1 February 1840. TABLE OF CONTENTS. Constitution of the United States . fs c . . Constitution of Pennsylvania. A . . . . Vocabulary of Law Terms . . c . . . Technical Law Terms explained . . . . 5 Law Phrases, &c., translated é . . . . Abatement . 5 5 : . . z é Abduction ; ; ‘ . . . . . Abortion ; . . . . . . . Accessory 3 ‘ f . . . . . Actions at Law ‘ . . . . Actions against Justices of the Peace . . . . . Acts of Assembly . a ‘i ‘ a ate A Adulteration . : e . . . . . Adultery 5 : . . . . . . Advice . . . . . . . . . Affray z . . . . ne . Amendment . . . . . . . . Appeal 3 . . . . . . . Apprentices . . . . . . . Arrest for Debt . . . . . . Arson 5 : . . . . * a Assault and Battery . . . . . . . Assignment - . . . . . . . Assumpsit . : . . . . . . Attachment, Domestic . . . . Attachment against Absent and Fraudulent Debtors . s Attachment in Execution é ; : . . . Attachment for Contempt . 7 - s : 2 Attorneys c ‘i : . . . . 3 Auctions . . . . . . . . Bail . é ‘ . . Bail and Goinndinvnt in @ininal Gael - . z . Bailment - ‘ . . : . ‘ Banks. j . F - 7 . ci : Barrator on ‘ s ‘ ‘: . . . Bible, Family . ‘ ‘ - ‘ ‘ a ‘ Bigamy i 6 rs . . . . . Bills of Exchange ‘i ‘ . . . . . (ix) PAGE 15 35- 51 68 71 73 76 76 17 81 475 118 125 126 128 130 131 132 137 148 149 152 154 157 158 162 168 179 180. 182 183 185 189 190 193 193 193 194 x TABLE OF CONTENTS. Bonds * . . Books required by a Mapisirats ‘ - . . Bread and Flour a . . . . Bribery . . . . . . Burglary . . . ° ° Burial Grounds . . . ° . Certiorari : . . . ° . Common Carriers. . a . . Common Law . ° 5 * ° Common Scold ‘ ‘ a * . + Compounding Offences . . . . . Concealed Weapons ‘ . . . Conspiracy : . . . . Constables. ‘ . : . . Contract . 7 é é ‘i . . . - 684 Timber . ‘ - ‘ . y é é é * 684 Time . c . - 5 ‘ e ‘i - 686 Trade Mavis z a 5 . é = ° es 687 Transcript . 3 : . . . ° ° . - 689 Treason . a : 3 . . < ° . i 691 Trespass and Trover . . . . . . . . - 692 Vagrants. 6 . . . . ° . ° . - 697 Wages . ‘ s . s . . re ‘ . -700 Warrant or Capias ‘ 5 7 ‘ . . . 702 Weights and Measures : . . . . . . - 704 APPENDIX. Code of Criminal Procedure . - ‘ : i si ° - 705 Naturalization of Aliens - a . . . . ‘ 730 Authentication of Records . i . e ° ‘ « 735 Rights and Duties of Jurymen . . ° ° ° . . 737 THE CONSTITUTION * oF THE UNITED STATES OF AMERICA | Ws, THE PeopLe or THE UniTEep Srarzs,(b) in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to. ourselves and: ‘our posterity,(c) do ordain and establish this Constitution for-the United States of America.(d) ~ ; ARTICLE I. a OF THE LEGISLATIVE POWER. _ Sect. I. All legislative powers herein granted, shal] be vested in a congress of the United States, which shall consist of a senate and house of representatives. (e) Sscr. II. 1. The house of representatives shall be composed of members chosen every second year by the people of the several states;(q) and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. 2. No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States(h) and who shall not, when elected, be an inhabitant(¢) of that state in which he shall be chosen.() (2) This constitution went into operation ‘on the first Wednesday in March 1789. 5 Wheat. 420. : b) The constitution was ordained and established, not by the states in their sove- reign capacities, but emphatically, as the preamble declares, by ‘‘the people of the United States.” 1 Wheat. 324. 6 Call 277. It required not the affirmance, and could not be negatived by the state governments. When adopted it was of complete obligation, and bound the state sovereignties. 4 Wheat. 404. 2 Dall. 471. 6 Wheat. 414. Which are de- pendent and subordinate, with respect to all the specific purposes for which it was adopted. The General Parkhill, U. S. Dist. Court, E. Penn. 19 July 1861. And see 6 Pet. 569, where it is said by McLean, J., to have been formed ‘‘by a combined power, exercised by the people, through their delegates, limited in their sanctions to the respective states.” See also, 2 Wils. Works 120. Sprague 602. (ec) The preamble to the constitution is con- stantly referred to, by statesmen and jurists, to aid them in the exposition of its provisions. See 2 Dall. 475. 12 Wheat. 465-6. 1 Story Const. ch. 6. (d) The United States is a government, and consequently, a body politic and corporate, capable of attaining the objects for which it was created, by the means which are neces- sary for their attainment. 2 Brock. 109. 1 Dall. 44. Through the instrumentality of the proper department to which those powers are confided, it may enter into contracts not pro- hibited by law, and appropriate to the just exercise of those powers. 5 Pet. 128. Asa corporation, it has capacity to sue, by its corporate title. 1 Brock. 177. 3 Wheat. 181. It may compromise a suit, and receive real and other property in discharge of the debt, in trust, and sell thé same. 8 McLean 365. 12 How. 107-8. e) See 1 Story Const. ch. 7-8. g) See Cl. & Hall 69. h) See Cl. & Hall 28. (i) See Cl. & Hall 224. An inhabitant of a . state, is one who is ‘bond jfide.a member of the state, subject to all the requisitions of its laws, and entitled to all the privileges and advantages which they confer.” Cl. & Hall 411. ) Process must go in the name of the commonwealth of Pennsylvania; but it is im- material in what part of the precept the com- monwealth is introduced, so that the command be given in its name. 6 B. 184. (ec) The proper conclusion of an indictment monwealth of Pennsylvania.” 5S. & R. 468. A conclusion “against the peace of the state, the government and dignity of the same,” is defective. 1 Gr. 262-3. (d) The death of the person elected to fill the office of clerk of the orphans’ court, before he has qualified himself according to law, does not create a vacancy which can be filled by the governor, but the incumbent holds over. 9 Barr 518. On the death of the pro- thonotary, the cowrt does not possess power to make a temporary appointment, until the vacancy is filled by the governor. Case of the Prothonotary sf Phila. Co., C. P. Phila., 14 May 1850. MS. CONSTITUTION OF PENNSYLVANIA. 43 Sect. IV. Prothonotaries, clerks of the peace and orphans’ courts, recorders of deeds, registers of wills and sheriffs, shall keep their offices in the county town of the county in which they respectively shall be officers, unless when the governor shall, for special reasons, dispense therewith, for any term not exceeding five years after the county shall have been erected. OF COMMISSIONS. Szor. V. All commissions shall be in the name and by the authority of the com- monwealth of Pennsylvania, and be sealed with the state seal, arid signed by the governor. OF THE STATE TREASURER. Sxcr. VI. A state treasurer shall be elected annually, by joint vote of both branches of the legislature. OF JUSTICES OF THE PEACE AND ALDERMEN AND OTHER OFFICERS. Srot. VII. 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 qualified voters thereof, in such number as shall be directed by law, and shall be commissioned by the governor for a term of five years. But no township, ward or borough shall elect more than two justices of the peace or aldermen, without the consent of a majority of the qualified electors within such township, ward or borough. Seort. VIL. All officers whose election or appointment is not provided for in this constitution, shall be elected or appointed as shall be directed by law. No person shall be appointed to any office within any county who shall not have been a citizen and an inhabitant therein one year next before his appointment, if the county shall have been so long erected ; but if it shall not have been so long erected, then within the limits of the county or counties out of which it shall have been taken. No member of congress from this state, or any person holding or exercising any office or appointment of trust or profit under the United States, shall at the same time (a) hold or exercise any office in this state, to which a salary is, or fees or perquisites are by law annexed, and the legislature may by law declare what state offices are incompatible.(6) No member of the senate, or of the house of representatives, shall be appointed by the governor to any office during the term for which he shall have been elected. OF MISBEHAVIOR IN OFFICE. Sect. IX. All officers, for a term of years, shall hold their offices for the terms respectively specified, only on the condition that they so long behave themselves well; and shall be removed on conviction of misbehavior in office, or of any infamous crime.(c) , DUELLING. Szot. X. Any person who shall, after the adoption of the amendments proposed by this convention to the constitution, fight a duel, or send a challenge for that purpose, or be aider or abettor in fighting a duel, shall be deprived of the right of holding any office of honor or profit in this state, and shall be punished otherwise in such manner as is, or may be prescribed by law; but the executive may remit the said offence and all its disqualifications. ARTICLE VII. ° EDUCATION. Sor. I. The legislature shall, as soon as conveniently may be, provide by law for the establishment of schools throughout the state, in such manner that the poor may be taught gratis.(d) ; c (a) See 17 8. & R. 228-30. 4D. 229. (c) A convictior. of the offence of bribing (6) Under the act of 16 April 1888, a deputy an elector to vote for him, does not disqualify marshal of the United States is incompetent a sheriff from e ercising the duties of his to hold the office of commissioner of an incor- office. 8 W. & 8 338. porated district, although there are no fees or (d) Laws prov ling for the establishment perquisites annexed to the office. 5 Barr 67. throughout the commonwealth of common 44 CONSTITUTION OF PENNSYLVANIA. % Secr. II. The arts and sciences shall be promoted in one or more seminaries of learning. RELIGIOUS SOCIETIES AND CORPORATIONS. Sxcr. III. The rights, privileges, immunities and estates of religious societies and corporate bodies, shall remain as if the constitution of this’state had not been altered or amended. : Sxcr. IV. The legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such cor- poration or individual to make compensation to the owners of said property, or give adequate security therefor before such property shall be taken.(a) ARTICLE VIII. OF THE OATH OF OFFICE. Members of the general assembly, and all officers,(b) executive and judicial, shall be bound by oath or affirmation, to support the constitution of this commonwealth,(c) and to perform the duties of their respective offices with fidelity. ARTICLE IX. DECLARATION OF RIGHTS. That the general, great and essential principles of liberty and free government may be recognised and unalterably established, WE DECLARE THAT Sxor. I. All men are born equally free(d) and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending .ife and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.(e) \ Sect. II. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness. For the”advancement of these ends, they have at all times an unalienable and inde- feasible right to alter, reform or abolish their government, in such a manner as they may think proper. Sect. IIL. That all men have a natural and indefeasible right to worship Al- mighty God according to the dictates of their own consciences,(g) that no man can of right be compelled to attend, erect or support any place of worship, or to main- tain any ministry against his consent; no human authority can, in any case what- ever, control, or interfere with the rights of conscience ;(4) and no preference shall ever be given by law to any religious establishments, or modes of worship. Srcor. IV. That no person who acknowledges the being of a God, and a future state of rewards and punishments, shall, on account of his religious sentiments, be disqualified to hold any office, or place of trust or profit, under this common- wealth.() Szotr. V. That elections shall be free and equal. schools, for the education of all between the age of five and twenty-one years, are not un- constitutional. 5 H. 118. (a) When private property is taken for pub- lic use, it is not necessary that the compensa- tion to the owner should be actually ascer- tained and paid before the property is appro- priated; but it is sufficient, if an adequate remedy be provided by which he can obtain compensation, without any unreasonable de- lay. 10 Barr 97. 3 W. & 8. 460. 1 Barr 132, 218, 6W. & 8.118. 4H. 192-3. Bright. R. 188. See art. IX. 3 10. (6) A county commissioner is such an offi- cer, 78. & R. 386. c) See 128. & R. 353. ta) Slavery is not inconsistent with any clause of the constitution of Pennsylvania. 6 Am. L. R. 251. Stroud on Slavery 148 n. See Spencer 368. (" See 9 H. 147, g) Christianity is a part of the common law of Pennsylvania; not Christianity founded on any particular religious tenets, but Chris- tianity with liberty of conscience to all men. 118. & R. 394, 400. 6 Barr 96. 8 Ibid. 327. 11 Leg. Int. 14. See 2 Story Const. 3 1871. 1P. BR. 18. 2 How. 198. 9 Am. L. R. 591. (4) Those who keep the seventh day as their Sabbath, may be punished for working on Sunday. 88. & R. 48, 8 Barr 182. 9 H. 426. And see 10 H. 114, 11 Leg. Int. 14. 17 S. & R. 160. (i) See 2 W. & S. 262, 2 C. 277. CONSTITUTION OF PENNSYLVANIA. 45 Sect. VI. That trial by jury shall be as heretofore,(a) and the right thereof re- main inviolate.(b) Sect. VII. That the printing presses shall be free(c) to every person who undertakes to examine the proceedings of the legislature, or any branch of govern ment; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject; being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers, or men in public capacity, or where the matter published is proper for public information,(d) the truth thereof may be given in evidence; and in all indictments for libels, the jury shalk have a right to determine the law and the facts, under the direction of the court, as in other cases. Sxct. VIII. That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be, nor without probable cause supported by oath or affirma- tion.(e) Sect. IX. That in all criminal prosecutions, the accused hath a right to be heard by himself and his counsel,(g) to demand the nature and cause of the ac- cusation against him,(h) to meet the witnesses face to face,(7) to have compul- sory process for obtaining witnesses in his favor; and in prosecutions by indictment, or information, a speedy public trial by an impartial jury of the vicinage: He can- not be compelled to give evidence against himself,(/) nor can he be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.(2) es X. That no person shall, for any indictable offence, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; or by leave of the court for oppression or misdemeanor in office.(m) No person shall for the same offence be twice put in jeopardy of life or limb,(n) nor shall any man’s profferty be taken or applied to public use, without the consent of his representatives, and with- out just compensation being made.(0) (a) It is error, if it do not appear, by the record of the trial of an indictment, that the defendant was tried by twelve jurors, law- fully sworn. 38 S. & R. 237. A waiver of this right, by the consent of the defendant, in a criminal case, is a nullity. 7 Am. L. R. 289. 4 Smith (N. Y.) 129. The 37th section of the Code of Criminal Procedure giving the commonwealth four peremptory chal- lenges does not conflict with this provision. 1 Wr. 45. * (3) See 1B. 424. 5 Barr 204. 7 Pet. 551-2. Trial by jury is a constitutional right, which cannot be waived by implication. 6 W. 1838. 7 C. 810. 4 Smith (N. Y.) 129. The legis- lature has no power either to provide that a petit jury may be composed of a less number than twelve; or that a number of the petit jury, less than twelve, may render a verdict. 28 Law Rep. 458. c) 1D. 325. 3 Y. 520. 4 Y. 269. dy 4 Y. 267. e) A warrant of arrest, issued upon com- mon rumor and report of the party’s guilt, though it recite that there is danger of his escaping before witnesses could be summoned to enable the judge to issue it upon oath, is illegal ; and no officer is bound to execute it. 8 B. 88. But an arrest for felony may be made without warrant. 6 B. 316. (g) It need not appear by the record that the prisoner was allowed counsel. 1 Wr. 108. (2) The 20th section of the Code of Crimi- nal Procedure of 31 March 1860 does not conflict with this provision. 1 Wr. 109. (i) This clause applies to impeachments, which are criminal prosecutions. Porter’s Trial 100-12. But depositions were taken and read on the trial of Judge Hopkinson. Hopkinson’s Trial 40-8. It does not, how- ever, abrogate the common law principle that dying declarations are admissible in evidence in cases of homicide. 7 How. (Miss.) R. 655; 1 Meigs 265; 11 Geo. 855; 8 Ohio St. R. 181; 7 Iowa 347. (k) See 8 Y. 515. 1) A private act is not such a law. 5 W & 8.171. 6 Barr 87. And see 1 Curt. C. C. 811. (m) See 3 D. 490. 2D. 112. 1 Y. 206, 370, 419. 2 Y. 429. 18. & RB. 382, (n) This only applies to capital offences, 5 C. 828. The court, even in a capital case, may discharge a jury, before verdict, in case of absolute necessity ; but mere inability to agree is not such a case; and if a jury be discharged under such circumstances, the prisoner may plead it in bar of another trial. 3 R. 498. (0) See art. VII. 3 4. This clause is a dis- abling, not an enabling one. 10 W. 66. There are no other limitations to the power of the state over private property, than those that are placed upon it by the constitution. 46 CONSTITUTION OF PENNSYLVANIA, Sxor. XI. That all courts shall be open, and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by the due course of law,(a) and right and justice administered without sale, denial or delay. Suits, may be brought against the commonwealth in such manner, in such courts and in such cases, as the legislature may by law direct.(6) Sect. XII. That no power of suspending laws shall be exercised unless by the. legislature or its authority. Secr. XIII. That excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments mflicted. Sxcr. XIV. That all prisoners shall be bailable by sufficient sureties unless for capital offences, when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not he suspended, unless when, in cases of re- bellion or invasion, the public safety may require it. Sect. XV. That no commission of oyer and terminer or jail delivery shall be issued. Sect. XVI. That the person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law. Sect. XVII. That no ex post facto law,(c) nor any law impairing contracts, shall be made. Srct. lature. 2) IIL. That no person shall be attainted of treason or felony by the legis- Secor. XIX. That no attainder shall work corruption 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 6 W. & S. 113. The commonwealth has a ‘constitutional right to authorize a turnpike company to lay out a road through the private ground of a citizen without making compen- sation fer the soil. 6 B. 509. Such compensa- tion .having been originally made in each purchaser’s particular grant. 3 Y. 373. When property is not seized, and directly appropri- ated to public use, though it may be subjected in the hands of the owner to greater burdens than it was before, it is not taken. 9 H. 147. 6 W. & 8.118. 8 Ibid. 85. 1 Wr. 479. 4H. 192-3. 6 Wh. 25. See 5 Seld. 100. The mere laying out of streets through private property, is not a taking within the meaning of the constitution; it is only when they are actually opened and applied to public use, that the owners are entitled to compensation. 2 W. & 8. 820. It is not necessary that the compensation should be actually ascertained and paid before the property is appropriated; it is enough, that an adequate remedy is pro- vided by which the owner can obtain com- ensation without unreasonable delay. 1 arr 809. 10 Ibid. 97. See 5 H. 524. Anda law limiting the time within which the owner’s claim for damages shall be exhibited is not unconstitutional. 1 Kern. 308. The legisla- ture may, constitutionally, require the owners of property benefited by a public improve- ment to pay the damages sustained by those whose property is taken, in proportion to the benefits received by each of them. 8 W. 296. 7 Barr 175, 8 Wend. 85. 4 Comst. 419. But the government cannot take the property of one citizen for the mere purpose of transfer- ring it to another, even for a full compensa- tion, where the public is not interested in such transfer; such an arbitrary exercise of power is an infringement of the spirit of the constitution, not being within the power delegated by the people to the legislature. 1 Barr 809. 2 Ibid. 24. 6 Ibid. 91. 1 H. 217. 4 Ibid. 264. 70.90. 2Seld. 358. The legis- lature may, indeed, authorize a trustee of the legal estate in land to convert it into money, for the purpose of distributing the proceeds among the parties entitled. 2 Barr 277, 393. 5 H. 484. 9 Ibid. 201. But they cannot authorize the sale of the property of parties sui juris, and seised of a vested estate, against their consent. 4 H. 256. 7 C. 87. (a) This requires that the law relating to the transaction in controversy, at the time wher it is complete, shall be an inherent ele- ment of the case, and shall guide the decision; and that the case shall not. be altered in its substance by any subsequent law. 9 C. 495. (6) 6 W. & 8. 116, 117. (3 Any law changing the punishment of offences committed before its passage is ez post facto, and void under the constitution, unless the change consist in the remission of some separable part of the punishment before prescribed, or be referable to prison discipline or penal administration as its primary object. 8 Smith (N. Y.) 95. An act granting a new trial is unconstitutional. 8 H. 18. (2) See 4 W. & S. 218. 2 Wh. 896. 8W.& 8. 49. 9 Am. L. R. 661. An act of assembly cannot impair a contract made, after it has passed both houses of the general assembly, aut before its approval by the governor. 9 C. 202. The legislature, provided it does not violate the constitutional prohibitions, may pass retrospective laws. 7 W. 300. See 7 C. 288, 801. But a contract which has become void, by force of its inherent conditions, can- pe be reinstated by act of assembly. 8 Wr. 435. CONSTITUTION OF PENNSYLVANIA. 47 natural death; and if any person shall be killed by casualty, there shall be no for- feiture by reason thereof. Sect. XX. That the citizens have a right, in a peaceable manner, to assemble to- gether for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance. Sect. XXI. That the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned.(a) \ Sxcr. XXII. That no standing army shall, in time of peace, be kept up without the consent of the legislature; and the military shall, in all cases and at all times, be in strict subordination to the civil power.(b) Secr. XXIII. That 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 pre- scribed by law. Secr. XXIV. That the legislature shall not grant any title of nobility or here- ditary distinction, nor create any office, the appointment to which shall be for a longer term than during good behavior. Srct. XV. The emigration from the state shall not be prohibited. Srcr. 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 ge- neral powers of government, and shall for ever remain inviolate. ARTICLE X. OF AMENDMENTS Any amendment or amendments to this constitution may be proposed in the senate or house of representatives, and if the same shall be agreed to by a majority of the members elected to each house, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and the secretary of the commonwealth shall cause the same to be published three months before the next 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 be published in the manner aforesaid, and such proposed amendment or amendments shall be submitted 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 amendment 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 amend- ments shall be submitted to the people oftener 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. ¢ ARTICLE XI.(c) OF PUBLIC DEBTS. Sect. I. The state may contract debts, to supply casual deficits or failures in revenues,.or to meet expenses not otherwise provided for; but the aggregate amount of such debts direct and contingent, whether contracted by virtue of one or more acts of the general assembly, or at different periods of time, shall never exceed seven hundred and fifty thousand dollars, and the money arising from the creation of such debts, shall be applied to the purpose for which it was obtained, or to repay the debts so contracted, and to no other purpose whatever. Sscr. IJ. In addition to the above limited power, the state may contract debts to repel invasion, suppress insurrection, defend the state in war, or to redeem the pre- sent outstanding indebtedness of the state; but the money arising from the contract- ing of such debts shall be applied to the purpose for which it was raised, or to repay such debts, and to no other purpose whatever. (a) See 2 Litt. 90. 1 Ala. 612. 3 Blackf. b) See 2 C. 33. 229. 1 Kelly 248. 24 Texas 394. ¢) First amendment of 1857. 48 CONSTITUTION OF PENNSYLVANIA. Secr. III. Except the debts above specified, in sections one and two of this article, no debt whatever shall be created by or on behalf of the state. a Szor. IV. To provide for the payment of the present debt, and any additional debt contracted as aforesaid, the legislature shall, at its first session after the adoption of this amendment, create a sinking fund, which shall: be sufficient to pay the accru- ing interest on such debt, and annually to reduce the principal thereof by a sum not less than two hundred and fifty thousand dollars; which sinking fund shall consist of the net annual income of the public works, from time to time owned by the state, or the proceeds of the sale of the same, or any part thereof, and of the income or proceeds of sale of stocks owned by the state, together with other funds or resources that may be designated by law. The said sinking fund may be increased from time to time, by assigning to it any part of the taxes, or other revenues of the state, not required for the ordinary aad current expenses of government, and unless in case of war, invasion or insurrection, no part of the said sinking fund shall be used or applied otherwise than in extinguishment of the public debt until the amount of such debt is reduced below the sum of five millions of dollars.(a) Sct. V. The credit of the commonwealth shall not in any manner or event be pledged or loaned to any individual, company, corporation or association ; nor shall ‘the commonwealth hereafter become a joint owner or stockholder in any company, association or corporation. Sect. VI. The commonwealth shall not assume the debt, or any part thereof, of any county, city, borough or township; or of any corporation or association ; unless such debt shall have been contracted: to enable the state to repel invasion, suppress domestic insurrection, defend itself in time of war, or to assist the state in the dis- charge of any portion of its present indebtedness. Scr. VII. The legislature shall not authorize any county, city, borough, town- ship or incorporated district, by virtue of a vote of its citizens, or otherwise, to become a stockholder in any company, association or corporation ; or to obtain money for, or loan its credit to any corporation, association, institution or party.(b) ARTICLE XIL(c) OF NEW COUNTIES. No county shall be divided by a line cutting off over one-tenth of its population (either to form a new county or otherwise), without the express assent of such county, by a vote of the electors thereof; nor shall any new county be established containing less than four hundred square miles. , SCHEDULE TO THE AMENDMENTS oF 1838. ‘ 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 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 there- with, 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. II. The alterations and amendments in the said constitution shall take effect from the first day of January 1839. 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. IV. The general assembly which shall convene in December 1838, shall continue a) See 18 Leg. Int. 404, 412. b) Prior to the adoption of the amendment to the constitution, it was well settled that acts of assembly authorizing municipal sub- scriptions to the stock of railroad companies were not unconstitutional. 9 H. 147, 188. 8 C. 218, 12 C. 263. 6 Am. L. R. 689. 8 Pitts- burgh Leg. J. 146. They were not in viola- tion of any express provision of the constitu- tion; and a law passed by the legislature is presumed to be constitutional until clearly shown to be otherwise. 2 C. 287. (c) Second amendment of 1857. CONSTITUTION OF PENNSYLVANIA. 49 its session as heretofore, notwithstanding the provisions in the eleventh section of the first article, and shall, at all times, be regarded as the first general assembly under the amended constitution. V. The governor who shall be elected in October 1838, shall be inaugurated on the third Tuesday in January 1839; to which time the present executive term is hereby extended. VI. The commissions of the judges of the supreme court, who may be in office on the first day of January next, shall expire in the following manner: The commission which bears the earliest date shall expire on the first day of January, Anno Domini 1842; the commission next dated shall expire on the first day of January, Anno Domini 1845 ; the commission next dated shall expire on the first day of January, Anno Domini 1848 ; the commission next dated shall expire on the first day of Jan- uary, Anno Domini 1851; and the commission last dated shall expire on the first day of January, Anno Domini 1854. a VII. The commissions of the president judges of the several judicial districts, and of the associate law judges of the first judicial district, shall expire as follows: The commissions of one-half of those who shall have held their offices ten years or more at the adoption of the amendments to the constitution, shall expire on the twenty- seventh day of February 1839 ; the commissions of the other half of those who shall have held their offices ten years or more, at the adoption of the amendments to the constitution, shall expire on the twenty-seventh day of February 1842 ; the first half to embrace those whose commissions shall bear the oldest date. The commissions of all the remaining judges, who shall not have held their offices for ten years at the adoption(a) of the amendments to the constitution, shall expire on the twenty- seventh day of February next, after the end of ten years from the date of their com- missions. VIII. The recorders of the several mayors’ courts, and other criminal courts in this commonwealth, shall be appointed for the same time and in the same manner as the president judges of the several judicial districts; of those now ‘in office, the com- mission oldest in date shall expire on the twenty-seventh day of February 1841, and the others every two years thereafter, according to their respective dates; those oldest in date expiring first. IX. The legislature, at its first session under the amended constitution, shall divide the other associate judges of the state into four classes. The commissions of those of the first class shall expire on the twenty-seventh day of February 1840; of those of the second class on the twenty-seventh day of February 1841; of those of the third class on the twenty-seventh day of February 1842; and of those of the fourth class on the twenty-seventh day of February 1848. The said classes, from the first to the fourth, shall be arranged accordixg to the seniority of the commissions of the several judges. X. Prothonotaries, clerks of the several courts (except the supreme. court), recorders of deeds, and registers of wills, shall be first elected, under the amended constitution, at the election of representatives, in the year 1839, in such manner as may be prescribed ‘by law. XI. The appointing power shall remain as heretofore, and all officers in the appointment of the executive department, shall continue in the exercise of the duties of their respective offices, until the legislature shall pass such laws as may be required by the eighth section of the sixth article of the amended constitution, and until appointments shall be made under such laws, unless their commissions shall be superseded by new appointments, or shall sooner expire by their own limitations, or the said offices shall become vacant by death or resignation; and such laws shall be enacted by the first legislature under the amended constitution. XII. The first election for aldermen and justices of the peace shall be held in the year 1840, at the time fixed for the election of constables. The legislature, at its first session under the amended constitution, shall provide for the said election, and for subsequent similar elections. The aldermen and justices of the peace now in commission, or who may in the interim be appointed, shall continue to discharge the duties of their respective offices until fifteen days after the day which shall be fixed by law for the issuing of new commissions, at the expiration of which time their commissions shall expire. a (a) See 8 W. 3381. THE MAGISTRATEH’S VOCABULARY or LAW TERMS AND ‘ LAW PHRASES, TRANSLATED AND EXPLAINED, FROM THE MOST APPROVED AUTHORITIES. LAW TERMS AND PHRASES Such as are most frequently used, not only in courts of justice, and in, magis- trates’ offices, but among men of business, and in common conversation, the precise - meaning of which is not so generally understood as is desirable—explained and their meanings given, according to the most modern and approved authorities. ACCESSORY. An accessory is he who is not the chief actor in the offence, nor present at its performance; but is some way concerned therein either before, or after, the fact committed. An acces- sory before the fact, is defined, by Sir Matthew Hale, to be, one who being ab- sent at the time of the crime committed, doth yet, procure, counsel or command another to commit a crime. Herein ab- sence is necessary to make him an acces- sory ; for if such procurer, or the like, be present, he is guilty of the crime as prin- cipal. An accessory after the fact, may be when a person, knowing a felony to have been committed, receives, relieves, comforts, or assists, the felon. Therefore to make an accessory ex post facto [after the fact], it is in the first place required that he knows of the felony committed ; in the next place he must receive, relieve, comfort, or assist him—and generally any assistance whatever, given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assister an accessory. 1 Hale P. C. 616, 618. 2 Hawk. P. C. ¢, 29, § 32. 4 BI. Com. 35, 86, 87. Whart. Law Dict. 11. ACCOMPLICE, one of many equally concerned, in a felony; generally applied to those who are admitted to give evidence against their fellow criminals. Whart. Law Dict. 14. ACQUITTAL, a release or discharge ; it most commonly signifies a deliverance and setting free of a person from the suspicion or guilt of an offence, as for instance, he that on a trial is discharged of a felony is said to be acquietatus de felonia ; and if he be drawn in question again for the same crime he may plead autrefois acquit, [before acquitted], as his life shall not be twice put in danger - for the same offence. 2 Inst.385. Whart. Law Dict. 18. ADJOURNMENT. The same with the French word adjournment, and signi- fies a putting off until another day, or to another place. Cowell. Blount. An ad- journment of Parliament [of congress or the general assembly] is no more than a continuance of the session from one time to another. 1 Bl. Com. 185. Whart. Law Dict. 29. AFFIDAVIT. An affidavit is an oath in writing, sworn before some judge, or officer of a court, or other person, who hath authority to administer such oath, to evince the truth of certain facts therein contained. 3 Bl. Com. 304. 1 Lill. Abr. 44, Whart. Law Dict. 32. AFFRAY. An affray is the fighting of two or more persons in some public place, to the terror of his majesty’s sub- jects, [or, the people of this Common- wealth] ; for, if the fighting be in private, it is no affray, but an assault. 1 Hawk. P. C. c. 638. 4 Bl. Com. 145. Whart. Law Dict. 34; and there must be a stroke given, or offered, or a weapon drawn, otherwise it is no affray. 3 Inst. 158. AGE is particularly used in law, for 51) 52 those special times’which enable persons of both sexes to do certain acts, which be- fore, through want of years and judgment, they are prohibited to do. As for exam- ple, a male at twelve years old may take the oath of allegiance; at fourteen, is at years of discretion, and therefore may consent or disagree to marriage, and may choose his guardian ; at seventeen, may be an executor; and at twenty-one, is at his own disposal, and may alien his lands, goods, and chattels. A female, also, at seven years of age, may be betrothed or given in marriage, at nine, is entitled to dower ; at twelve, is at years of maturity, and therefore, may consent or disagree to marriage ; at fourteen, is at years of legal discretion, and may choose a guardian; at seventeen, may be an executrix; and at twenty-one, may dispose of herself and her lands. So that full age, in male or female, is twenty-one years; which age is completed on the day preceding the anniversary of a person’s birth; who, till that time, is an infant, and so styled in law. Co. Litt. 78, b. 1 Bl. Com. 462. Whart. Law Dict. 34. AGREEMENT is the consent of two or more persons, concerning the one in parting with, and the other receiving some property, right, or benefit. 1 Bac. Abr. Whart. Law Dict. 37. ALDERMAN, see Halderman. ALIMONY is that allowance the law allows to the wife after a divorce a mensa et thoro, [from bed and board], and is made to the woman for her support out of her husband’s estate; being settled at the discretion of the ecclesiastical [or other] judge, on consideration of all the circumstances of the case. 1 Bl. Com. 441. Whart. Law Dict. 39. AMBASSADOR. An ambassador is a person sent by one sovereign prince to another, to transact, in the place of his sovereign, such matters as relate to both states. Ambassadors are either ordinary, or extraordinary; the ordinary ambassa- dors are those who reside in the place whither sent; and, as the time of their re- turn is indefinite, so is their business un- certain ; arising from emergent occasions : and commonly, the protection and affairs of the merchants is their greatest care. The extraordinary ambassadors, are made pro tempore, and employed upon some particular great affairs, as condole- ments, congratulations, or for overtures of MAGISTRATE’S VOCABULARY. marriage, or the like. 4 Inst. 153. Mol- ‘loy 144. Whart. Law Dict. 42. AMICUS CURL. If a judge is doubtful, or mistaken in matter of law, a stander-by may inform the court, as ami- cus curic, [a friend of the court.] 2 Co. Litt. 178. Whart. Law Diot. 45. ANNO DOMINI, [the year of our Lord]; the computation of time from the incarnation of Jesus Christ, which is generally inserted in the dates of all public writings. Jacob. Whart. Law Dict. 4. ARBITRATION is where the parties injuring and injured submit all matters in dispute concerning 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. See Whart. Law Dict. 5. ARBITRATOR, is a person indiffer- ently chosen by third persons, between whom there are any matters in dispute, to determine all such matters in controversy, according to his own judgment, whether they relate to matter of law or fact. Termes de la Ley 54. Whart. Law Dict. 60. ARRAIGN, to call a man to answer in form of law. To arraign a prisoner, is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in an indictment. 4 Bl. Com. 822. Whart. Law Dict. 64. Arraignment is necessary only in capital cases. The trial may go on in larcen without arraignment. 5 S. & R. 316. In all cases of misdemeanor, a defendant may appear and plead by attorney. Ibid. ARRAY, an old French word, signify- ing the ranking or setting forth of a jury - of men impannelled on a cause. 18 H. 6, c. 14. And when we say to array a panel, that is, to set forth the men impan- nelled one by another. F. N. B. 157. Whart. Law Dict. 64. To challenge the array of the panel, is.at once to except against all persons arrayed orimpannelled, in respect of partiality, or some default in the sheriff, [or county commissioners]. Co. Lit. 156, a. ARREST, a restraint of a man’s per- son, obliging him to be obedient to the LAW TERMS AND PHRASES, law ; and it is defined to be the execution of the command of some court of record, or officer of justice. An arrest is the be- ginning of imprisonment where a man is first taken and restrained of his liberty by power of a lawful warrant. 2 Shep. Abr. 648. Wood’s Inst.575. And arrests are either in civil or criminal cases; and there is this difference between the two, that none shall be arrested for debt, tres- pass, detinue or other cause of action, but by virtue of a precept or commandment out of some court: but for treason, felony or breaking of the peace, every man hath authority to arrest without warrant or pre- cept. Termes de la Ley 52. Whart. Law Dict. 65. 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. Whart. Law Diet. 65. ASSETS, signifies goods and chattels of a saleable nature, in the hands of the executor or administrator, sufficient, or enough, to make him chargeable to a cre- ditor or legatee, so far as such goods and chattels extend. 2 Bl. Com. 511. Whart. Jiaw Dict. 67. ASSIGNEE, one that is assigned or appointed by another, to do any act, or perform any business. It also signifies one that taketh any right, title or interest, in things, by an assignment from an assignor [the person who assigns]. Dyer 6. Whart. Law Dict. 69. © ASSUMPSIT is a voluntary promise, made by word, by which a man assumes, or takes upon him to perform, or pay any thing to another: this word also compre- hends any verbal promise made upon consideration. Termes de la Ley 68. 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 has sustained by the violation of the con- tract. 1 Bac. Abr. Whart. Law Dict. 71. ATTORNEY AT LAW is a person -duly admitted in the courts, and who is appointed by another person, usually 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. Whart. Law Dict. 73. ; 53 BACKING OF WARRANTS is the signing of an authority on the back thero- 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. Whart. Law Dict. 80. BAIN 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. Whart. Law Dict. 80. BAILMENT is a delivery of goods in trust, upon, a contract, expressed or im- plied, that the trust shall be faithfully exe- cuted on the part of the bailee He per- son to whom the goods are delivered]. As if cloth be delivered, or (in our legal dialect) bailed to a tailor, to make a suit of clothes, he has it upon an implied con- tract, to render it again when made, and that in a workman-like manner. 2 BL. Com. 451. Whart. Law Dict. 82. BARON AND FEME are husband and wife. Co. Litt. 112. 1 Bl. Com. 441. Whart. Law Dict. 87. BARRISTER, a counsellor learned. in the law; admitted to plead. at the bar, and there to take upon him the protection and defence of clients. Fortescue. Whart. Law Dict. 88. BATTERY is an injury done to 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, vt et armis, et contra pacem, &c. oo de la Ley 85. Whart. Law Dict. 9. BIGAMY signifies a double marriage, or marriage of two wives, one after an- other; and not the having of two together, more properly called polygamy. 8 Inst. . 4 Bl..Com. 163. Whart. Law Dict. 3. 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 54 that is future, or presently on demand, ac- cording to the agreement of the parties at the time it is entered into, and the deal- ings between them; and is divided into two sorts, viz. a bill single, without a penalty, and a bill penad, 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- 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. Whart. Law Dict. 103. BRIBERY is where a person, in a ju- dicial place, takes any fee, gift, reward or brocage [brokerage], for doing his office other than that which is lawful. 3 Inst. 145. But taken largely it signifies the receiving, or offering, any undue 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. Whart. Law Dict. 109. 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. Cowell. Blount. Whart. Law Dict. 110. CAPTION. When any commission at law, or in equity, is executed, the com- missioners subscribe their names to a cer- tificate, testifying when, and where, the commission was executed; and this is called a caption. Also, when a man is arrested, the act of taking him, is termed a caption. There is, also, the caption of an indictment, which is the setting forth of the style of the court before which the jurors made their presentment. Jacob. Whart. Law Dict. 121. CASH (sale for). In Pennsylvania, if one sell goods for cash, and the vendee [the purchaser] take them away, without payment of the money, the vendor [the seller] may pursue the party and retake MAGISTRATE’S VOCABULARY. them; and he would be justified in doing so by force. 1 Yeates 527. CAVEAT EMPTOR isa maxim which enters into every purchase, 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. Rep. 447. See Whart. Law Dict. 126. CLERGY, BENEFIT OF. By stat. 3 Edw. 1, c. 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 asa 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 be put to death. 2 Hale’s Pl. Cr. 377 Whart. Law Dict. 91. 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 BI. Com. 296. Whart. Law Dict. 160. COMMON LAW. The common law is grounded upon the general customs of the realm, and includes, in it, the law of nature, the law of God, and the principles and maxims of the law; it is founded upon reason; and is said to be the per- fection of reason acquired by long study, observation and experience, and refined by learned men in all ages. Co. Litt. 97, 142. 1 BI. Com. 63, et seq. Whart. Law Dict. 161. COMPETENCY (Witnesses). The general rule is that all are competent as witnesses who are both able and willing to declare the truth. Consequently, the circumstances, which wholly disqualify a person as a witness, are, Ist, the want of religious belief, such as renders the party incapable of the obligation of an oath: 2d, LAW TERMS AND PHRASES. the infamy of his character: 5d, a legal interest in the result of the cause. 2 Stark. Ev. 392. COMPOUNDING FELONY, or theft bote, is where the party robbed, not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. 1 Hawk. P. C..¢. 59, § 5. Whart. Law Dict. 163. CONSPIRACY is an agreement of two or more persons, falsely to indict one, or to procure him to be indicted, for felony, riot, or other misdemeanor; who, after acquittal, shall have a writ of conspiracy. Termes de la Ley 173. Whart. Law Dict. 171. CONTINUANCE. A party who neg- lects up to the day of hearing by a justice to take out a subpeena, or resort to the - proper legal steps, to obtain the attend- ance of his witnesses, is not legally entitled to a continuance. 1 Ash. 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. Whart. Law Dict. 181. COURT. A justice of the peace must, necessarily, have his court, or place of administering justice, at which his duties ought to be performed. 1 Penn. R. 15. COURT OF ADMIRALTY is a court erected for deciding maritime causes. It hath jurisdiction only to determine causes arising wholly upon the sea out of the jurisdiction of a county. 4 Inst. 260. Whart. Law Dict. 25. CREDIT. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes upon trust, for there is 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 my order, and when upon his own authority. 1 Bl. Com. 430. CRIME is a positive breach, or disre- gard of some existing public law, and generally means such offences as amount to a felony. 4 BI. Com. 5. Whart. Law Dict. 196. CUSTOM AND USAGE. To make a custom, or usage of trade, obligatory, as ‘a law of that trade, it must be certain, 55 uniform, reasonable and sufficiently an- cient, to ke 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. Whart. Law Dict. 205. Damages are a species °c” 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. Whart. Law Dict. 208. DAY, is a certain space of time con- taining twenty-four hours: the natural day consists of twenty-four hours, and contains the solar day and the night; and the artificial day begins from the rising of the sun, and ends when it sets. Co. Litt. 135. Whart. Law Dict. 208. DEBT, in the usual acceptance of the word, is a sum of money due from one person to another. Butin the legal sense, it is taken to be an action which lieth where a man oweth another a certain sum of money by obligation or bargain, for a thing sold, or by contract, &c., and the debtor will not pay the debt at the day agreed. Selw. N. P. 484. Whart. Law Dict. 211. DEDIMUS POTESTATEM, is a writ issued out of the court of chancery [or other court], to commissioners, authori- zing them to take an answer, to examine Witnesses in a cause, to levy a fine in the Common Pleas, &. Also, when any justice intends to act under any commis- sion of the peace, he sues out a writ of dedimus potestatem, from the clerk of the crown in chancery, empowering certain persons, therein named, to administer the usual oaths to him, which done, he is at liberty to act. 1 Bl. Com. 851. Whart. Law Dict. 215. DEED, is an instrument in writing, on parchment or paper, and under seal, con- taining some conveyance, contract, bar- gain or agreement between th parties thereto ; and it consists of three principal 56 points, writing, sealing and delivering. Co. Litt. 171. 2 Bl. Com. 295. Whart. Law Dict. 215. DEFAMATION is the offence of speaking slanderous words of another. Termes de la Ley 233. Whart. Law Dict. 218. DEFAULT is commonly taken for non-appearance in court at a day assign- ed, though it extends to any omission of that which we ought to do. Co. Litt. 259. Whart. Law Dict. 219. DEFENDANT is the party that is sued in a personal action ; as zenant is he that is sued in an action real. Cowell. Blount. Whart. Law Dict. 220. | DEMAND, signifies a calling upon a man for anything due. 8 Co. 153. Whart. Law Dict. 223. DEPOSITION is the testimony of a witness, otherwise called a deponent, put down in writing, by way of answer to in- terrogatories [or questions asked], exhib- ited for that purpose in courts of equity ; and the copies of such depositions regu- larly taken and published, are read as evidence at the hearing of the cause. Pract. Attorn. edit. 1, p.234. See Whart. Law Dict. 227. DILATORY PLEAS are such as are put merely for delay; as coverture, mis- nomer and the like. 3 Bl. Com. 301. Whart. Law Dict. 232. 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 Lill. Abr. 470. : DISTRESS, in the most general sense, is anything which is taken and distrained for rent behind or in arrear. 2 Bl. Com. 42. Selw. Nisi Prius 612. Whart. Law Dict. 288. , DIVORCE is a separation of a man and a woman who have been, de facto, married together, made by law, and is of two kinds; the one total, the other par- tial; the one a vinculo matrimonti, the other, merely @ mensa et thoro. 1 BI. Com. 489. Whart. Law Dict. 241. DOCKET, or DOGGET, a record in the courts, containing an entry of judg- ment: thus, when rolls of judgment are brought in they are docketed, 7. e. entered on the docket of that term. West Symb. par. 2, §106. Whart. Law Dict. 241. MAGISTRATE’S VOCABULARY. DONOR and DONEE. Donor is he who gives lands or tenements to another in tail, &e. And the person to whom given is the donee. Termes de la Ley 287. Whart: Law Dict. 244. DOWER is the portion which a widow hath of the lands of her husband, after his decease, for the sustenance of herself, and the education of her children. 1 Inst. 30. Whart. Law Dict. 247. _ DUCES TECUM is a writ out of chancery, commanding a person to appear at a vertain day in court, and to bring with him some writings, evidences, or other things, to be inspected and examined in court. Reg. Orig. Whart. Law Dict. 252. DUPLICATE signifies a copy or tran- ‘script of any deed, writing, or account. St. 4 Car. c. 10. Whart. Law Dict. 252. 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. Whart. Law Dict. 255. EAVES-DROPPERS are suchas 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. Whart. Law Dict. 256. ESCROW is where the delivery of a deed is made to a third person, to hold till some conditions be performed, on the part of the grantee [the person to whom the sale has been made]; in which case it is not delivered as a deed, but as an escrow; that is, as a scroll or writing which is not to take effect as a deed, till the conditions be performed ; and then it is a deed to all intents and, purposes. Co. Litt. 36. 2 Bl. Com. 307. Whart. Law Dict. 276. EXACTION, a wrong done by an offi- cer taking a reward, or fee, for that which the law does not allow. And the differ- ence between exaction and extortion is this: extortion is where an officer extorts more than his due, where something 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. 868. Whart. Law Dict. 279. LAW TERMS AND PHRASES. EXECUTOR DE SON TORT, or executor of his own wrong, is he that \ takes upon him the office of an executor by intrusion, not being so constituted by the testator; or, for want thereof, appoint- ed by the ordinary [register] to administer. Dyer 166. Selw. Nisi Prius 706. Whart. Law Dict. 287. 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 jastice 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. Whart. Law Dict. 289. EX PARTE, party of the one part; as a commission ex parte, in chancery; which is a commission taken out and exe- cuted by one side or party only, on the other party’s neglecting or refusing to join. Cowe]l. Blount. Whart. Law Dict. 290. EX POST FACTO is a term used in the law, signifying something done after the time when it should huve been done: thus, an act done, or estate granted, may be made good by matter ex post facto, that was not so at first, by election, &c. 5 Co. 22. ‘ EX POST FACTO LAWS are such as are made to operate on facts committed before the making théreof, by creating or aggravating crime, increasing the punish- ment, or changing the rules of evidence for the purpose of conviction. 3 Dall. 390. The phrase, as used in the constitution, only applies to penal and criminal laws which inflict forfeitures or punishments, not to civil proceedings. 8 Pet. 110. FALSE IMPRISONMENT signifies a violent trespass, committed against a person by arresting and imprisoning him without just cause, contrary to law; or where a man is unlawfully detained in prison, without legal process; or kept longer in hold than he ought; or if he be any way unlawfully detained. Co. Litt. 124. Selw. Nisi Prius 814. Whart. Law Dict. 295. FEE SIMPLE is an estate of inherit- ance, whereby a person is seised of lands, tenements or hereditaments, to hold to him and his heirs for ever, generally, absolutely and simply. 2 Bl. Com. 104. Whart. Law Dict. 297. FELO DE SE. When a person with \ - 57 deliberation and direct purpose, kills him- self by hanging, drowning, shooting, stabbing, &c., this is felo de se, if he be of the age of discretion, 7. e. fourteen, and compos mentis, [of sound mind]. 3 Inst. 44. Dalt. ch. 145. Whart. Law Dict. 300. FELONY, in the general acceptation of our English law, comprises every spe-. cies of crime which occasioned, at common law, the forfeiture of lands or goods. This nost frequently happens in those crimes for which a capital punishment either is, or was, liable to be inflicted; for those felonies which are called clergyable, or to which the benefit of clergy extends, were anciently punished with death in all lay, or unlearned offenders; though now, by the statute-law, that punishment is, for the first offence, universally remitted. Trea- son itself, says Sir Edward Coke, was anciently comprised under the name of felony. All treasons, therefore, strictly speaking, are felonies; ‘though all /elo- mies are not treason ; and to this also we may add, not only all offences, now capi- tal, are, in some degree or other, felony ; but that this is likewise the case with some other offences which are not punished with death, as suicide, where the party is al- ready dead ; homicide, by chance-medley, or in self-defence; and petit larceny or pilfering ; all which are, strictly speaking, Jelonies ; 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- sions a total forfeiture of either lands or goods, or both, at the common law, and to which capital, or other punishment may be superadded according to the de- grees of guilt. 3 Inst. 15. 4 Bl. Com. 94. Whart. Law Dict. 300. 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. 474. FORCIBLE ENTRY AND DE- TAINER. The first is a violent actual entry into houses or lands; and forcible detainer is a withholding, by violence, 58 and with strong hand, of the possession of land, &., whereby, he who hath a right of entry is barred or hindered. Lamb. 185. Cromp. 75. Keilw. 22. Whart. Law Dict. 311. See “ Forcible Entry and Detainer.” FORGERY signifies where a person fraudulently makes, and publishes, false writings to the prejudice of another man’s right; and forgery is either at common law or by statute. Forgery by the com- mon law, extends to false and fraudulent making or altering of a deed or writing, whether it be matter of record, or any other writing, deed or will. 3 Inst. 169. 1 Rol. Abr. 65. And Blackstone defines it to be “ the fraudulen making or altera- tion of a writing to the prejudice of ano- ther man’s right.” 4 Com. 245. Whart. Law Dict. 314. FRAUD is defined to be a decedt in grants and conveyances of lands and bar- gains, and sales of goods, &c., to the damage of another person. Bacon’s Abr. 3. Whart. Law Dict. 317. : FUGITIVE FROM JUSTICE. One who steals goods in another state and brings them with him into Pennsylvania cannot be indicted here for the felony. He is to be considered and treated as a fugitive from justice. 5 Binn. 617. FULL AGE. In Jaw, the full age of males and females is 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 Rol. Abr. 76. 1 BL Com. 345. Whart. Law Dict. 326. HOMICIDE, is the destroying the life of any human creature; it is of three kinds, viz., justifiable, excusable, and fe- lonious, “The first has no share of guilt atall; the second very little; butthethird & is the highest against the law of nature that man is capable of committing. First, justifiable homicide, is of divers kinds. 1. Such as is owing to some unavoidable necessity, without any will, intention or desire, and without any inadvertence or negligence in the party killing; and, there- fore, without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death, who hath forfeited his life, by the laws and verdict of his country. Again, in some MAGISTRATE’S VOCABULARY. cases, homicide is justifiable, rather by the permission, than by the absolute com- mand, of the law, either for the advance- ment of public justice, which, without such indemnification, would never be carried on with proper vigor; or in such instances where it is committed for the prevention of some atrocious crime which cannot otherwise be avoided. Homicides com- mitted for the advancement of public jus- tice are, 1. Where an officer, in the exe- cution of his office, either in a civil or criminal case, kills a person that assaulte and resists him. 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted, and in the endeavor to take him kills him. 3. In case of a riot, or rebellious assembly, the officers endeavoring to disperse the mob are justifiable in killing them, both at common law and by the riot act. 1 Geo. 1, c. 5, §4. Where the prisoners, in a gaol, assault the gaoler, or officer, and he, in his defence, kills any of them, it is justifiable for the sake of preventing an escape. 5. If trespassers in forests, parks, chases or warrens, will not surrender themselves to the keepers, they may be slain by virtue of the Stat. 21 Ed. Ist, de malefactoribus in pacts, and 3 & 4 W. & M.c.10. 6. If the champions, in a trial by battle, killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favor of the truth. In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature, and also by the law of England, [and of Pennsylvania.] If any person attempts a robbery or murder of another, or attempts to break open a house, in the night time, which extends also to an attempt to burn it, and shall be killed in such attempt, the slayer shall be acquitted and discharged, C. Secondly, excusable homicide is of two sorts, either per infortunium, by misad- venture, or se defendendo, upon a princi- ple of self-preservation. 1. Homicide per infortunium, or misadventure, is where a man doing a lawful act, without any in- tention of hurt,unfortunately kills another; as where a man is at work with a hatchet, and the head thereof flies off and kls a stander-by, or where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man, for the act is lawful, and the effect is merely accidental, LAW TERMS AND PHRASES. &e. 2. Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable, rather than justifiable, by the English [and Pennsylvania] law. This species of self-defence must be distin- guished from that just now mentioned as calculated to hinder the perpetration of a capital crime, which is not only a matter of excuse, but of justification. But the self-defence which we are now speaking of is that whereby a man may yrotect himself from an assault, or the like, in the case of sudden braw! or quarrel, b7 kill- ing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chaud-medley. 3. Feloni- ous homicide is an act of a very differ- ent nature from the former, being the kill- ing of a human creature, of any age, or sex, without justification or excuse. This may be done either by killing one’s self, or another man. Self-murder, the law of England hath ranked among the highest crimes, making it a peculiar species of felony ; a felony committed on one’s self. And this admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder. A felo de se, therefore, is he, who delibe- rately puts an end to his own existence, or commits any unlawful, malicious act, the consequence of which is his own death; as, if attempting to kill another, he runs upon his antagonist’s sword; or shooting at another, the gun bursts and he kills himself. The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt which divide the offence into manslaughter and murder. The difference between which, consists in this, that manslaughter arises from the sudden heat of the passions, murder from the wickedness of the heart. Manslaugh- ter is therefore thus defined, the unlawful killing of another without malice, either express or implied ; which may be either voluntary, upon a sudden heat, or invo- luntary, but in the commission of some unlawful act. Avs to the first, or voluntary branch: if ‘upon a sudden quarrel two persons fight and one of them kills the other, this is manslaughter ; and so it is if they, upon such an occasion, go out and fight in a field, for this is one con- tinued act of passion. So also, if a man be greatly provoked, as by pulling his nose, or other great indignity, and imme- 59 diately kills the aggressor, though this is not excusable, se defendendo, since there 8 no absolute necessity for doing it to preserve himself, yet neither is it murder, for there is no previous malice, but it is manslaughter. But in this, and in every other case of homicide, upon provocation, if there be a sufficient cooling time, for passion to subside and reason to interpose, and the person, so provoked, afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder, &c. The second branch, or involuntary manslaughter, dif- fers also from homicide excusable by mis- adventure, in this; that misadventure always happens in consequence of a lawful act; but this species of manslaughter in consequence of an unlawful one. As if two persons play at sword and buckler, unless by the king’s command, and one of them kills the other, this is manslaughter, because the original act was unlawful ; but it is not murder, for the one had no intent to do the other any personal mischief, &c. 1 Hale, P. C. 494, 5,6. 1 Hawk. P. C. c. 28, c. 65. Fost. 296. 3 Inst. 56. 4 Bl. Com. 176, e¢ seg. Whart. Law Dict. 53. HOUSEHOLDER, the occupier of a house. Cowell. Blount. Whart. Law Dict. 356. IGNORAMUS, the return of the grand jury on a bill of indictment when they reject the evidence as too weak or defect- ive to put the party on trial. 3 Inst. 30, Whart. Law Dict. 364. IMPANNEL signifies the writing and entering into a parchment schedule, by the sheriff, the names of a jury summoned to appear for the performance of such public service as juries are*employed in. Cowell. Blount. Whart. Law Dict. 365. IMPEACHMENT is the accusation and prosecution of a person in parliament [or the General Assembly] for treason or other crime and misdemeanor. 4 Bl. Com. 259. Whart. Law Dict. 366. IMPRISONMENT is the restraint of a man’s liberty, under the custody of an- other, and extends not only to a jail, but to a house, stocks, or where a man is held in the street, &c.; for, in all these cases, the party, so restrained, is said to be a pri- soner so long as he hath not his liberty freely to go about his business as at other times. Co. Litt. 253. Whart. Law Dict 368. 60 INCEST is the carnal knowledge of a person within the Levitical degree of kin- dred. 4 Bl. Com. 64. Whart. Law Dict. 369. b INDICTED. When the grand jury have found a true bill against any one ac- cused by bill preferred to them at the king’s suit, for some indictable offence, he is said to be ¢ndicted thereof. Cowell. Whart. Law Diet. 370. INDICTMENT is a bill of complaint, or accusation, drawn up in form of law, and exhibited for some offence, criminal or enal, to a grand jury; upon whose oaths it may be found to be true. Lamb. lib. 4, cap. 5. Whart. Law Dict. 370. INFORMER, a person who informs against, or presents in the king’s courts courts of the Commonwealth], for an of- fence against any law or penal statute. 2 Bl. Com. 487. Whart. Law Dict. 376. INVENTORY is a list or schedule, containing a true description of all the goods and chattels of a deceased person at the time of his death, with their value appraised by indifferent persons. Termes de la Ley 428. Whart. Law Dict. 396. LAND, legally comprehends all things of a permanent, substantial nature, being a word of a very extensive signification ; indeed, Sir Edward Coke says, “it com- prehendeth any ground, soil or earth whatsoever, as arable meadows, pastures, woods, moors, waters, marshes, furzes and heath. It legally includeth also all. castles, houses, and other buildings; for they consist (saith he), of two things, land which is the foundation and struc- ture thereupon; so that if I convey the land or ground, the structure or building passeth therewith. 1 Inst. 4. 2 Bl. Com. 16, 17. Whart. Law Dict. 420. LANDLORD is he of whom lands or tenements are holden. Co. Litt. 57, 205. Whart. Law Dict. 421. LAW, in its most general and compre- hensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus, we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the daws of nature and of nations. And it is that rule of ac- tion which is prescribed by some superior, and which the inferior is bound to obey. Municipal or civil law, is the rule by which particular districts, communities or MAGISTRATE’S VOCABULARY. nations, are governed ; being thus defined by Justinian, “Jus civile est quod quis- que sib populus constituit.” ‘[ The civil law is that which every nation has esta- blished for its own government.” ] Munt- cipal law, thus understood, is properly defined to be, a rule of civil conduct pre- scribed by the supreme power in a state commanding what is right, and prohibit- ing what is wrong. 1 Bl. Com. 38. 1 Inst. 11. 1 Bl. Com. 438. The Municipal law of England, or the rv 2 of civil conduct prescribed to the in- habitants of this kingdom, may, with suf- ficient propriety, says Sir Wiiliam Black- stone, be divided into two kinds :—the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law, properly so called, but also the particular customs of certain parts of the kingdom ; and likewise those par- ticular laws that are, by custom, observed only in certain courts and jurisdictions. 1 Bl. Com. 63. The leges scripte, or the writted laws of the kingdom, consist of statutes, acts or edicts, made by the king’s majesty, by and with the advice and con- sent of the lords spiritual and temporal, and commons, in parliament assembled. Ibid. 84. Hale’s Com. Law, e¢.1,2. © LEASE. A lease is properly a con- veyance of any lands or tenements (usu- ally in consideration of rent or other an- nual recompense) made for life, for years, or at will, but always for a Jess time than the lessor hath in the premises; for if it be for the whole interest it is more pro- perly an assignment than a lease. 2 BI. Com. 317. Whart. Law Dict. 428. LIBEL signifies literally a little book. A libel is defined to be a malicious defa- mation of any person, especially a magis- trate, expressed either in printing or writ- ing, or by signs, pictures, &c., tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt or ridicule. 2 Hawk. Le Selw. N. P. 931. Whart. Law Dict. LIEN is a specific charge on real or personal property. ———_- Accessory. I. Who are deemed accessories. III. Authorities in relation to accessories. II. Provisions of the Penal Code. IV. Forms. _ I. An accessory is he who is not the chief actor in the offence, nor present at ats performance, but in some way concerned therein, either before or after the fact committed. An accessory before the fact, is one who, being absent at the time of the crime committed, doth yet procure, counsel or command another to commit a crime. Herein absence is necessary to make him an accessory, for if such procurer, or the like, be present, he is guilty of the crime as principal. An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts or assists the felon: to hinder his being apprehended, tried or suffering punishment, makes the assistant an accessory. 1 H. P. C. 616,618. 2 Hawk. 29, 32. See Whart. Law Dict. 11. II. Act 31 Marcu 1860. Purd. 247. Sxcr. 180. Every principal in the second degree, or accessory before the fact, to any felony punishable under this act, for whom no punishment has been herein-: before provided, shall be punishable in the same manner as the principal in the first degree is by this act punishable. Every accessory after the fact to any felony, punishable under this act, for whom no punishment has been hereinbefore provided, shall, on conviction, be sentenced to a fine not exceeding five hundred dollars, and to undergo an imprisonment, with or without labor, at the discretion of the court, not exceeding two years. And every person who shall counsel, aid or abet the commission of any misdemeanor, punishable under this act, for whom no punishment has been hereinbefore provided, shall be liable to be proceeded against and punished as the principal offender. This section was introduced by the revisers of the Penal Code to simplify the complications now existing in our criminal legislation, in reference to the punish- ment of accessories. As the guilt of principal offenders in the second degree, and accessories before the fact, is morally the same with that of the principal offender, their punishment has been made the same; a general provision has also been made in this section, to embrace the cases of accessories after the fact, in felonies, and. power is given to the courts to inflict, within certain limits, upon such offenders, a punishment proportionate to their crime, except in the cases of such accessories ag are otherwise provided for in the code. Accessories before the fact to misdemeanors, 78: ACCESSORY. are now punishable in the same manner, at the common law, as the principal, there being, in fact, no such crime known to the’ common law as an accessory before the fact to a misdemeanor ; all such accessories being deemed principals; the last clause of the section is framed with a view to this principle. Report on the Penal Code 37. " Act 31 March 1860. Purd. 257. Sgot. 44. If any person shall become an accessory before the fact, to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force or hereafter to be in force, such person may be indicted, tried, con- victed and punished in all respects as if he were a principal felon.(a) (a) The principle of this section, which prescribes the same punishment against ac- cessories before the fact in felony, under the various synonymes of aiders, abettors, coun- sellors, comforters, &c., as against principals, is familiar to our criminal legislation; it is found in the 7th section of the act of 1718, 1: Sm. 113; in the 2d section of the'act of 8th March 1780, 1 Sm. 499; in the 2d, 3d and 5th sections of the act of 5th April 1790, 2 Sm. 581; and in the 4th section of the act of 23d April 1829, 10 Sm. 481. There is, therefore, nothing new in the principle of this section, which is founded on the theory of the moral guilt of the accessory before the fact being equal to that of the principal offender. The new principle in the section is that which makes the accessory before the fact guilty of a substantive offence, and which subjects him to punishment for his crime, without post- poning it until the conviction of the actual perpetrator; or more precisely speaking, which abolishes in felonies the technical dis-' tinction now existing between accessories be- fore the fact and principal offenders. was always the law as regards misdemeanors in which there are no accessories, all being regarded by law as principals; in’ felony, however, except in certain cases about to be noticed, an accessory cannot be tried before the conviction or outlawry of his principal, unless tried withhim. In felonies of frequent occurrence, this was found a great and serious evil, which called for and received partial legislative correction; as early as the act of the 31st May 1718, 1 Sm. 105, it was pro- vided that persons harboring, concealing or receiving robbers, burglars, felons or thieves, or receiving or buying any goods or chattels that should have been. feloniously taken or stolen by any such robbers, '&c., knowing the same to be stolen, might be proceeded against as is therein directed; and that if any such principal felon could not be taken, so as to be prosecuted and convicted for such offence, that nevertheless it should be lawful to prosecute and punish every such person buying or receiving any goods stolen by such principal felon, knowing the same to be stolen, although the principal felon should not be convicted of the felony. This, however, embraced only one class of accessories, to wit, receivers of stolen goods, in cases where the principal was not amenable to justice; afterwards, by the act of 238d September 1791, 8 Sm. 41, it was provided ‘‘in all cases of felonies of death, robbery and burglary, it shall be lawful to punish receivers of such felons, robbers and burglars, by a fine and imprisonment, although This © the principal ‘felons, robbers ‘and burglars cannot be taken, so as to be prosecuted and tried for said offences; which conviction and sentence of said receivers shall exempt them from being prosecuted as accessories after the fact in case the principal felon, robber or burglar shall afterwards be taken and con- vitted.” This act extended only to accessories after the fact, in cases in which the principals could not be taken. The act of 11th April 1825, 8 Sm. 438, was passed to avoid a difficulty which afterwards arose in the prosecutions of receivers of stolen goods, in cases in which the principals were amenable to justice. The act of 1718 was taken from the 4th section of 4th and 5th Anne, ch. 31, which only authorized proceed- ings against such receivers before the convic- tion or attainder of their principals, when such principals could not be taken. Foster, in his discourse on accomplices, ¢ 6, p. 873, says on this point: ‘I know attempts have been made, under various shapes, to prosecute the receiver as for a misdemeanor, while the principal hath been in custody and amenable, but not con- victed ; but I think such devices illegal.” The act of 1825 solved the difficulty, by declaring that receivers of property, knowing it to have been feloniously stolen, may be prosecuted although the principal be not before con- victed, and whether he is amenable to justice or not. It will thus be seen, that all our legislation with regard to the trial of accessories to felonies, before the conviction of their prin- cipals, applies only to accessories after the fact, a class of offenders who have had no primary connection with the original crime, and whose guilt only consists in having given comfort and succor to the actual offender after its perpetration; except in cases of receivers of stolen goods, this offence is often almost venial, consisting frequently in parents and friends, influenced by the ties of blood, or the impulses of affection, giving aid and comfort to an offender whose crime they abominate and deplore. It seems strange that the com- mon law privilege, which exempted accessories from liability to justice until the conviction or attainder of the principal, should be taken away in cases of accessories after the fact, and left in those of accessories before the fact, whose guilt is always as great, and often much greater, than that of the principal. The 45th section proposes putting our statute laws on the subject of accessories to felonies in har- mony with justice and reason. Report on the Penal Code 46-8. ACCESSORY. 79. Secr. 45. If any person shall become an accessory after the fact to any felony, whether the same be a felony at.common law, or by virtue of any act of assembly now in force, or that may be hereafter in force, he may be indicted and convicted as an accessory after the fact, to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and con- victed of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be: punished; and the offence of such person, howsoever indicted, may be inquired of, tried, determined and punished, by any court ‘which shall ‘have jurisdiction to try the principal felon, in the same manner as if the act by reason of: which such person shall have become accessory, had béen committed at the same-place as the principal felony: Provéded always, That ‘no person who shall be once duly tried for any such offence, whether as an accessory after the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence.(a) IH. If several persons set out tdgether, 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: faot, others to watch, at proper distances and stations, to prevent a surprise, or to favor, if need be, the : escape of those who are more immediately engaged, they are all, provided the fact be committed, in the eye of the law, present at it. Forst. Cr. L. 350. 4 Penn. L. J. 156. In some cases even a person absent may be a principal, as he: that puts poison: into anything to poison another, and leaves it, though not present when it is taken ; and so, it seems, all that are present, when the poison is so infused, and consenting thereto. 1H. P. C. 216. If an act of parliament (or act-of assembly) enact an offence to be felony, though it mention nothing of accessories before, or after, yet virtually and conse-- quentially those that counsel or command the offence are accessories before, and © those that knowingly received the offender are accessories after. 1 H. P. C. 613. But if the act of parliament (or of assembly) that makes the felony in express terms comprehend accessories before, and makes no mention of accessories after [the fact], namely, receivers or comforters, then, it seems, there can be no acces- sories after. 1 H. P. C. 614. It seems agreed: that the law hath such a regard to that duty, love and ten- derness, which a wife owes to her husband, as not to make her. an accessory to felony by any receipt given to her husband; yet if she be any way guilty of pro- curing her husband to commit it, it seems to make her an accessory before the fact in the same manner as if she had been sole (single.) Also, it seems agreed ‘that no other relation besides that of a wife to her husband will exempt the receiver of a felon from being an accessory to the felony; from whence it follows, that if a master receives a servant, or a servant a master, or a brother a brother, or even a husband a wife, they are all accessories in the same manner as if they had been mere strangers to one another. 2 Hawk. 320. But if the wife, alone, the husband being ignorant of it, do receive any other person, being a felon, the wife is accessory, and not the husband. But if the hus- bang 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 (a) This section is only an extension of the existing laws; which, as will be seen from the preceding remarks, subjected accessories after the fact, and receivers, to punishment. before the conviction or attainder of their principals. It embraces such accessories not only in com- mon law felonies, but those created, or which hereafter may be created, by statute; it au~ thorizes the conviction of such offenders either with or after the conviction of the principals, or for a substantive offence, whether the prin- cipal felon shall or shall not have been previ- ously convicted, or shall or shall not be amenable to justice. It also provides for the case of a party becoming an accessory after the fact in one county to a felony committed in another; giving jurisdiction over the crime of such accessory to the courts of the county having jurisdiction over the crime of the prin- cipal offender. This provision supplies the 22d and 23d sections of the act of 1718, 1 Sm. 119, made, probably, to meet a doubt at com- mon law, whether an accessory in one county to a felony in another, was indictable in either. Report on the Penal Code 48. 80 ACCESSORY. By the revised Penal Code, persons charged as accessories to murder, man: slaughter or other homicide are directed to be tried at a court of oyer and ter- miner. Purd. 255. IV. WARRANT FOR MISPRISION OF FELONY. BERKS COUNTY, ss. ; The Commonwealth of Pennsylvania, To the Constable of H—— in the County of Berks, greeting: Wnuerras complaint hath been made before J. R., one of the Justices of the Peace in and for the County of Berks, on oath of J. L., of H——, aforesaid, storekeeper, that R. S., of H——,, aforesaid, blacksmith, well knowing that a felony and burglary had been com- mitted by A. B., of H—, aforesaid, laborer, in the night of Sunday, the nineteenth day of December, instant, in the dwelling-house of the said J. L., at H , aforesaid, did unlawfully conceal his knowledge of the same felony and burglary. These are, there- fore, to command you forthwith to take the said R. S., and bring him before the said J. R., to answer unto the said complaint, and further to be dealt with according to law. Wiryuss the said J. R., at H——, aforesaid, the twenty-eighth day of December, in the year of our Lord one thousand eight hundred and fifty-nine. ~ J. R., Justice of the Peace. [sza.] Return of Constable on the Warrant. I have taken the within named R. S., whose body I have ready, as within I am com- manded. December 30th 1859. X. Y., Constable. WARRANT FOR AN ACCESSORY BEFORE THE FACT. MERCER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Mercer, greeting: Wuereas information hath been made on oath before J. R., one of the Justices of the Peace in and for the County of Mercer, that one C. D., of the township aforesaid, laborer, on the night of Tuesday, the seventh day of May, last past, did feloniously break and enter the dwelling-house of HE, F., at L. P., in the said county; and that A. B., of the township aforesaid, yeoman, did procure, aid and abet the said C. D. to commit the said felony and burglary. You are, therefore, hereby commanded forthwith to take the said A. B., and bring him before the said J. R., to answer unto the said complaint, and further to be dealt with according to law. Wirvess the said J. R., at H——, in the said county, the fourth day of June, in the year of our Lord one thousand eight hundred and fifty-nine. J.R., Justice of the Peace. [sxat.] Return of Constable. By virtue of this warrant, to me directed, on the fifth day of June, instant, I took and arrested the within named A. B., and safely kept him in my custody, until C. S., of S—— township, aforesaid, and divers other persons to me unknown, on the sixth day of June, instant, at the township aforesaid, assaulted and ill-treated me, and the said A. B., out of my custody, then and there, rescued. And afterwards, the said A. B. is not found in my bailiwick. June 10th 1859. X. Y., Constable. CoMMITMENT FOR AN ACCESSORY AFTER THE FACT. DAUPHIN COUNTY, ss. The Commonwealth of Pennsylvania, Ho any Constable of the said county, and to the Keeper of the Dauphin county prison, greeting: Tuuse are to authorize and require you, the said constable, forthwith to convey and deliver into the custody of the keeper of the said prison, the body of J. L., of H—, in the said county, coppersmith, charged, on the affirmation of J. W., of H aforesaid, farmer, before J. R., one of the Justices of the Peace in and for the said county, with having received, comforted, assisted and relieved a certain R. S., well knowing that a felony and robbery had been committed by the said R. 8. upon T. B., of Berks county, yeoman, on the sixth day of March, last past, by assaulting him upon the public high- way, leading from L—— to H—,, and feloniously taking from him the sum of forty-five dollars, And you the said keeper are hereby required and commanded to receive the said J. L. into your custody, in the said prison, and him there safely keep, until he be thence delivered by due course of law. Wiryess the said J. R., of H—— aforesaid, the tenth day of April, in the year of our Lord one thousand eight hundred and fifty-nine. J. B.. Justice of the Peace, [sxat.] ACTIONS AT LAW. 81 When the person charged is brought before the justice and the witnesses examined, if the offence be bailable, he ought to be required to give sufficient surety for his appearance at the succeeding court; if the offence be not bailable, or if the offender refuse or neglect to give such surety, he ought to be committed. FoRMS OF DOCKET-ENTRIES IN CRIMINAL CASES. Tar ComMoNWEALTH vs. J. 1. Information . .. 6 Docket-entry . Warrant . . . . 2 Recognisances . . Constable. Serving warrant Mileage 83S S855 Ture ComMONWEALTH vs. R. 8S. Subpena issued for three wit- nesses for Commonwealth: served by constable. costs. Justice, . . .« Constable . . <¢ . 41.19 Warrant issued April 3d 1859, to the’ Constable of S-—— township, on the affirmation of D. W., charging defendant with receiving, &c., R. S., who had committed a robbery upon S. B, April 4th 1859, defendant brought, denies the charge, and tenders bail, which is accepted. J. L. bound in $100) for the appearance of J. L. at the next G.D. “ “© $100 J session, &c., to answer, &c., and not to depart, &e. : Acknowledged April 4th 1859, before me, J.R. D. W. bound in $50 for his appearance at next sessions, &c., to testify, &c., and not to depart, &e. Acknowledged April 4th 1859, before me, J. R. (Returned to June sessions 1859.) Warrant issued January 3d 1859, to the constable of H—, on oath of J. L., charging defendant with concealing S. B., who had committed a burglary in the dwelling-house of the said J.L, December 28th 1858. Defendant brought, and denies the charge. On hearing, he is directed to enter bail for his appear- ance, &c., which he refuses. Commitment issued. J. L. bound in°$50) for their appearance respectively at next J.F. “ “ $50}sessions, &c., to give evidence, &c., and J.D. “ $50) not to depart, &e. Acknowledged January 3d 1859, before me, J. R., Justice. J. L, and J. F. sworn, J. D. affirmed. (Returned to March sessions 1859.) Actions at Lav, Or Proceedings before Justices of the Peace in Civil Cases. I. General nature of actions at law. VI. Proceedings subsequent.to thejudgment. II. IL. Civil jurisdiction of justices. 1. Of the stay of execution. 1, In actions on contracts. 2. Of the transcript to bind real estate. 2. In actions for rent. 8. Of the execution. 8. In actions for penalties. 4, Liability of the constable. 4. In actions on foreign judgments. 5. Docket entries and transcripts. Proceedings in civil causes. 6. Transcripts to other counties. 1. Of the process and service. 7. Satisfaction of judgments. 2. Process in case of non-residents. VII. Justices’ dockets. 8. Amicable actions. 1. Transfer of dockets. 4, Judgments by default. 2, Proceedings to enforce the delivery 5. Of the trial before the Justice. . of justices’ dockets. ; 6. Of depositions. ‘ 3. Proceedings to supply lost dockets. 7. Proceedings before referees. VIII. Outline of proceedings in a civil suit IV. Vv. I. AN AcTIon is defined to be—the lawful demand of one’s right. Of the appeal. Of the certiorari. before a justice of the peace, or alderman. 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. Civil actions are divided into personal, rea 1 and mized. 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 82 : ACTIONS AT LAW. 5 injury done to his person or property. The former are said to be founded on con- ‘tracts, the latter upon torts, or wrongs. Of the former nature are all actions eee debt or promises; of the latter, all actions for trespasses, nuisances, assau ts, defamatory-words, and the like. 8 Bl. Com. 117. ix 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. Ibid. 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 sustained. Ibid. 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 1s several, x Action on the case is a general action given for redress of wrongs and inju- ries done, without force ; as for not performing a promise made by the defendant to the plaintiff, or for speaking words by which the plaintiff is defamed, or for other misdemeanors or deceits. Actions upon an act of assembly.—Upon every act of assembly made for the remedy of any injury, mischief or grievance, an action lies by the party 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 way of prohi- bition. : Actions qui tam, sometimes called popular actions, are such as are given by act of assembly, which imposes a penalty, and creates a forfeiture for the neglect of some duty, or commission of some crime ; to be recovered by action or informa- tion, 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. 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 8. & RB. 144. The suing out the writ is the commencement of the suit, and the cause of action must be antecedent thereto. 1 Caines 40. An action cannot be sustained in the courts of a state on any agreement entered into in violation of the laws of the United States, or the laws of the par- ticular state. 6 Binn. 321. A claim which is founded upon a transaction which is either malum prohibi- twm, or malum in se, cannot be enforced by an action of any kind. 1 W. & & 181. Where a duty, judicial. in its nature, is imposed upon a public officer or a municipal corporation, a private action will not lie for misconduct or delinquency in its performance, even if corrupt motives are charged. 1 Denio 595. 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 S. & R. 78. 6 C0. 196. The plaintiff must commence his suit within a certain period after the cause of action accrued, which varies according to the nature of the subject; otherwise, hig claim may be defeated by the interposition of the statute of limitations, or by the presumption which the law allows in cases of stale or antiquated demands, that they have been satisfied. It is not a statute to protect parties against loss of evi- dence 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 Tr. & H. 77. See tit. Limita- tion of Actions. IL. Crvin JURISDICTION OF JUSTICES. 1. In Actions on Contracts. The justices of the peace of the several counties of this commonwealth, shall ACTIONS AT LAW. ’ 83 have jurisdiction (a) of all causes of action arising from contract, either express or implied,(6) in all cases where the sum demanded ‘is not above one hundred dol- (a) “Shall have jurisdiction.” The general jurisdiction of the justices of the peace will be found laid down more in detail, and defined with more strictness in other parts of this volume, principally under the head “ Juris- diction,” and in the notes to this section. “The jurisdiction of justices in ctvid cases,” says Judge Kina, ‘‘is derived altogether from statutes, and when the cause of action is not embraced in any of these, w justice cannot interfere.” ‘A limited authority,” says SHrp- pen, CO. J., in 1 Binn. 105, “such as ts given to justices of the peace, must be strictly pursued. They cannot’ interfere, officially, in a civil controversy, without pursuing the steps pointed out by the act.” (8) The following remarks may not be un- acceptable as giving some general idea of what is to be understood by contracts ‘either ex- press 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 performance. All contracts are to be certain, perfect and com- plete. A contract made and entered into upon good consideration, may, for good con- sideration, be dissolved. ‘A promise,” says Blackstone, ‘“‘is in the nature of a verbal contract, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If, therefore, it be to do any ex- plicit act, it is an express contract, as much as any covenant, and the breach of it is an equal injury.” Hxpress contracts include sales, rents or other agreements where there is a fixed price agreed upon for the articles sold or the pro- perty 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. Ifthe purchaser, however, shall pay the money agreed upon, and the goods sold shall not be delivered according to the agree- ment, 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 further, if the pur- chaser 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 answer- able for such delivery at the time and place and in the condition agreed upon. But if the purchaser shall undertake to provide a con- veyance, or shall direct that the goodg be sent by a particular carrier or a certain line of stages, if the seller sends the-goods purchased, according to the directions of the buyer, and they miscarry, or come too late, or get da- maged, the purchuser 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 pur- chaser, Where there is no agreement, that is, as to rent, between the owner of a property and the occupant, the owner may recover reason- able satisfaction for the tenements which have been occupied, in an action for use and occu- pation. This, however, is an implied contract. ‘« Implied contracts,” says the same author, ‘tare 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-perform- ance.” For example, on such presumption suits are brought to recover back money paid in mistake ; or through deceit ; or by extortien: or imposition. If a person employ another to do any work or service, the law implies, or presumes, that the employer undertook to pay the person he employed a reasonable compen- sation, such as 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 employed engages to do the work, or render the service in such a manner as such work or such services are usually done, and to be, content with the compensation usually paid in that neighborhood for such work and services. ; The law raises a similar implication where @ person buys goods from another without agreeing upon the price to be paid; andin an infinite variety of other cases the same pre- sumption is assumed ; as on promissory notes, orders, due-bills; also to recover back money paid to one acting under a void authority; money paid, laid out, and expended to the use of another, or at his request ; or for money had and received by the defendant to the use of the plaintiff; or for goods sold and delivered; or for work and labor done; or for neglect of duty or non-performance of en- gagements; as where a person loses goods or clothing, &c., at an inn; or where s common carrier, from negligence, fails to deliver the property he had been hired to convey; or a farrier injures a horse in shoeing him; or a tailor, milliner, shoemaker or other mechanic does the work he has undertaken to do in an unskilful or unworkmanlike manner. In these, and in such like cases, though no agreement shall have been made, yet there exists a legal liability, and the law presumes that the party promised to pay the debt, or perform the duty, and on failure the party injured has a right to redress. There is also an extensive class of contracts, implied by reason and construction of law, which arises from the presumption that every one who undertakes any office, employment, trust or duty, contracts with those who” employ him, or intrust him, to perform its duties, with 84 , ACTIONS AT LAW. lars,(a) except (b) in cases of real (c) contract, where the title to lands or tenements may come in question,(d) or ‘action upon promise of marriage. Act 20 March 1810, § 1. Purd. 592. integrity, diligence and skill. If, from u want of any of these qualities, injury accrues to individuals, they have their remedy by legal proceedings. : The legislature, in conferring jurisdiction on justices of the peace, had in view those con- tracts which arise immediately out of a course of dealing between the parties, and not that sort of contract that arises remotely out of the compact of government. 138, & R. 108. 2P. R. 295. And therefore, justices have no jurisdiction of an action on a sheriff’s bond. 178. & R. 867. Ora constable’s bond. 4 W. 215. Nor in debt against a sheriff for an escape. 1388. & R. 44. Nor of an action against a constable for not paying arrears of rent out of the proceeds of an execution. 2 J. 379. Nor for a militia fine. 2 Wh. Dig. 120, pl. 50. Nor for a balance due on a judg- ment of the common pleas. 88. & R. 843. 128. & R. 58. 178. & R. 3869. Nor for the penalty for not entering satisfaction on a judgment. 138. & R. 102. Nor on a judg- ment of another justice, except in the particu- lar mode prescribed by the act. 175. & R. 369. Nor on the judgment ofa justice of another state. 7 W. 814. (But see infra 4.) Norona devastavit by an executor. 128. & R. 68. A forfeited recognisance. 17 8S. & R. 370. A bail-bond. Ibid. An action for a legacy. 12 S: & R. 59. Accountrender. 108. & R. 227. 5 Wh. 452. Detinue. 1 T. & H. Pr. 32, note j. An action against another justice for money collected in his official capacity. 6 W. 384. Or for a tort. 2 P. R. 292. 1 Ash. 180, 152. 2J. 379. 8 W. 179. But they have jurisdiction in an action on an insolvent bond. 2 P. R. 462. 8 P. R 64. An award. 7 Barr 134. A bailment. 7 W. 175, 542. An action for ground-rent. 8 P. R. 461. For fees. 4 B. 167. For the penalty for taking illegal fees. 7 W. 491. For un- liquidated damages for breach of contract. 1 Phila. R. 254. In assumpsit for careless- ness in the performance of work. 7 C. 14. And of an action against executors for money paid by a devisee which is properly charge- able on the residuary estate. 8.C. 809. (a) A plaintiff may sue before a justice for a balance of less than $100, although his claim originally exceeded that amount. Herbert v. Conrad, Purd. 592¢. Where there have been mutual dealings or partial pay- ments ou account, and the balance is under $100, it has ever been the practice to sue before a justice. 1 J. 281. See l W. & S. 57. 4 Barr 880. 7 W. & S. 484. 3 P. R. 625. 1 _ 7P. RB. 21. 6 Wh. 94. 16 8S. & R. 255. But "where the plaintiff's demand has not been reduced by payments or by mutual dealings between the parties, to the statutory standard, he cannot give jurisdiction by remitting part, and suing for the balance. 1 Wr. 887. And a judgment will not be reversed, because on appeal, a declaration is filed for a greater sum than $100. 8 Barr 465. 1J. 282. 1 Wr. 390. So, a payee of several promissory notes amounting in the aggregate to more than $100, may bring several suits before a justice. 6 H. 162 If the justice have not jurisdiction, the com- mon pleas has none on appeal. 10 8S. & R. 227. 1 Wr. 888. Thus, if a justice give judgment for a certain sum and interest, in the whole above his jurisdiction, and the defendant appeal to the common pleas, although he there plead the general issue and go to trial, judgment will be arrested. 1 B. 219. The proceedings in the common pleas are de novo only as to the pleadings; the cause of action must continue the same. 3 B. 45. : (6) “Except.” Besides the cases which the words of the law exempt from the juris- diction 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 persons who fill such stations from the service of civil process. There are also certain civil duties which individuals are bound by law to per- form, or to be in readiness to perform; as militia men, jurors, witnesses, parties, &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 Pennsyl- vania, declares that the senators and repre- sentatives 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 respect- ive houses, and in going to, and returning from, the same.” (c) An action for the balance of the pur- chase-money of a lot of ground, is such real contract. 8 P. R. 888. Or to recover back money paid on a contract for the sale of land which is afterwards rescinded because of a defect of title. 2 W. 325. Or to recover damages for a deficiency in quantity in the sale of land. 3 R. 325. But a contract to purchase a judgment which is a lien on real estate is not within the exception. 3 H. 358. Nor is a contract for the produce of land. 14 Leg. Int. 28. And by the act of 1814, jurisdiction is given to them in all actions of trespass for injury to real estate; excluding only those cases in which the title to land actually does come in question; of which the defendant must make cath before the justice. 8 H. 468. (2) This excludes from their cognisance every suit on a contract concerning or in any way connected with realty. 8 H. 468. A justice has no jurisdiction when the title to land may come in question directly or indirectly. 8 P. R. 888. 8 Wh. 110. 2 W. 185. 3 R. 826, 6 H. 240. As of an action on a note given in consideration of a right to dig a mill-race, and conduct water across plaintiff’s land. 6 W. 3387. It is otherwise, where such note is in the hands of an in- dorsee. 6 W. 482. But an assignee of the contract cannot sue before a justice. 2 Gr. 87, ACTIONS AT LAW. 85 If any person or persons shall commence, sue or prosecute any suit or suits, for any debt or debts, demand or demands made cognisable as aforesaid, in any other manner than as is directed by this act, and shall obtain a verdict or judg- ment therein, which, without costs of suit, shall not amount to more than one hundred dollars,(@) not having caused an oath or affirmation to be made before the obtaining of the writ or summons or capias, and having filed the same in the prothonotary’s office of such county, that he, she or they so making oath or affirma- tion, did truly believe the debt due or damages sustained, exceeding the sum of one hundred dollars, he, she or they so prosecuting, shall not recover costs in such suit.(6) Ibid. § 26. Any justice of the peace shall take cognisance of any matter or thing made so by this act, for any sum exceeding one hundred dollars, if the parties voluntarily appear (c) before him(d) for that purpose, and shall proceed for the recovery thereof by entering judgment, if confessed, or if submitted to him by reference ;(e) but no execution (g) shall issue before the expiration of one year from the date of such judgment, if the party defendant be a freeholder, or shall have entered special bail, and such judgments shall be prosecuted to recovery as other judgments by this act are made recoverable: but if it shall afterwards appear,(h) by due proof, on oath or affirmation, that there is just cause to believe that any such judgment was confessed for the purpose, and en a view to defraud just creditors, it shall be the duty of the justice to transmit a/certified transcript of his proceeding to the pro- thonotary of the proper county, who shall file the same for adjudication of the court ‘of common pleas, whose judgment thereon shall be final; and if on trial of the (a) If the amount be reduced below $100, by evidence of set-off, the plaintiff will recover costs, without an affidavit. 3 S. & R. 388. 2 D. 74. 138. & R. 287. 168. & R. 253. And 80, where it is reduced below $100, by evi- dence of a special contract to pay the debt of a third person. 7 W. 346. 1 W. 39. But it is otherwise where the amount is reduced by direct payments. 5 Wh. 94. 1 W. & S. 57. 1D. 808, 457. 28. & R. 580. 9W.&S. 66. 4 Barr 330. Where the plaintiff, in an action in the common pleas on a contract, recovers less than $100, and there is nothing on the record to show that the demand was reduced by set-off, the presumption is that it was within the jurisdiction of a justice. 11 H. 184. (5) See 9S. & KR. 294. 30. 71. 9 C. 378. (c) ‘If the parties voluntarily appear.” The justice cannot enter judgment on a war- rant of attorney, or a judgment note or bond. Such a judgment would be void. The parties must voluntarily appear before the magistrate. No writing, nor evidence of any kind, can be taken as a substitute for the appearance of the parties. But if the defendant appear in obedience to a summons, and confess judg- ment, for a sum exceeding $100, it is valid. 2 Gr. 247. Judgment being confessed, the Merits of it cannot afterwards be inquired into by the justice. Numerous authorities to sup- port these assertions may be found among the ‘judicial decisions” in this volume. They are here given to impress the justice with the absolute necessity which exists for his always keeping strict watch, so that he shall not overstep the limit of his authority. In every case, the words of the law are his best, as they are his only safe guides. ‘(d) At his office. 1 P. R. 15. It must ap- pear hy the record that the parties appeared in person before him and confessed the judg- ment, 10 W. 118. The plaintiff, in such case, may appear by his agent, and enter a confes- sion of judgment, for a sum exceeding $100. 10. 145. (e) A justice has no jurisdiction of a con- tested claim exceeding $100, and cannot acquire it by consent. 18. & R. 27. 28. & R. 489. 4 8. & R. 190. The parties must agree on the sum for which judgment is to be entered, or leave it to the justice to ascer- tain from mutual accounts, admitted to be fair and just. 18. & R. 27-81. The justice cannot appoint referees to decide on such a claim. 18. & R. 27. And an award in-such case could not be sustained. 28. & R. 489. But the parties may cure the defect by a sub- sequent voluntary confession of judgment. 3 W. 235. No appeal lies from such a judg- ment. 48. & R. 190. Nor can the justice ae it, and inquire into the merits. 3 W. (g) The justice has jurisdiction of proceed- ings against a constable for a false return to an execution issued on such judgment. 15 8. & R. 75. (4) Where a judgment is confessed before a justice of the peace, for a sum exceeding $100, it is not sufficient, in order to certify the case into the court of common pleas for trial, under this section, that a creditor of the defendant should make affidavit, that there is just cause to believe the judgment was con- fessed for the purpose, and with a view to defraud just creditors; but the justice must certify that he is satisfied, by due proof, that there is just cause for such belief. Gluyas v. Freudenvoll, Common Pleas, Philadelphia, . July 8, 1848, MS. But if the justice so cer- tify, the court cannot go behind his certificate, and inquire how he made up his mind,— whether after hearing and evidence, or by ex parte affidavit; they must take the certificate to be sufficient. Woodward v. Bower, Common Pleas, Philadelphia, July 10, 1848. MS. 86 ACTIONS AT LAW. merits (a) of the cause, it shall be found that the sum for which judgment was confessed was not actually due at the time, both parties, if both shall have been privy to the fraud, shall each pay a fine equal to the amount of such fraudulent judgment, and also pay the reasonable costs and expenses of.the party prosecuting, or in any case of inability to pay such fine and costs, shall be imprisoned for any time not exceeding six months; but if it shall appear on such trial, that the judg- ment was just, the party prosecuting shall pay all the costs of suit and the reason- able costs of the parties to such judgment. Ibid. § 14. 2. In Actions for Rent. The powers of justices of the peace shall extend to all cases of rent, not exceeding one hundred dollars, so far(d) as to compel the landlord to defaleate, 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,(c) and of detaining the surplus in his hands, he shall forfeit to the tenant four times the amount of the sum detained: Provided, That no appeal shall lie(@) in the case of rent, but the remedy by replevin shall remain as heretofore. Ibid. § 20. oh The said justices of the peace and aldermen shall have original jurisdiction of all cases of rent,(e) not exgeeding one hundred dollars, to be recovered as debts of similar amount are recoverable.(g) Act 22 March 1814, §6. Purd. 593. 8. In Actions for Penalties.(h) The aldermen and justices of the peace of every city, incorporated township and borotigh in this commonwealth, shall have power to hear and determine all actions of debt for penalty, for the breach of any ordinance, by-law or regulation of such city, township or borough, in the same manner, and subject to the.same right of appeal(z) as debts under one hundred dollars; and such actions shall be instituted in the corporate name of such city, township or borough.(&) Act 15 April 1835, §7. Purd. 598. In all cases of the breach of any by-laws of any city, borough,(Z) town or corpo- rate 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 (a) When a case is certified into court, under this section, the practice is either to form a feigned issue, or to try the case on the justice’s transcript without pleadings. 4. R. 110. The court of common pleas of Philadelphia county have decided that, on the trial, the plaintiff must make out his case by competent evidence as though the case had been originally brought in the common pleas. When a judg- ment alleged to be fraudulent is opened, with- out terms, the plaintiff must establish his case as if no judgment had been entered. The bur- den of proof, in such case, is on the plaintiff. 2 Gr. 121. But see 12 C. 162, and Gilp. 404. () It seems, that he cannot proceed to judgment and execution. 4 Y. 237. (c) The decision is prima facie evidence, on the issue of no rent in arrear, in favor of a Blssiiger whose goods were levied on. 1 R. 435. (d) No appeal lies by the tenant. 1 Br. 69. But the court of common pleas of Philadel- phia county have held, that the landlord is not deprived of the right of appeal by this proviso. (e) An action of covenant for ground-rent is within the act. 8 P. R. 461. And such action may be brought against an assignee of the land. 9 H. 450. (g) If the defendant, before the trial of the action, shall make oath that the title to lands will come in question, it is the duty of. the justice to dismiss the case, under 3 2 of this act. 4P. L. J. 851. Justices have no juris- diction of a claim for rent where the title to the real estate from which it issued comes into question. 6 H. 240. h) See tit. Penalties. i) There is no right of appeal where the penalty claimed is less than $5.38; and in such a case the court dismissed the ,appeal, although more than two years had elapsed, and the plaintiff had filed a declaration and entered arule to plead. Northern Liberties ». Crocks, Com. Pleas, Phila., December 1848, MS. Where an appeal dces not lie, no waiver will give jurisdiction. 1 Ash. 158. 5 H. 89. 48. & R. 190. (%) An action gui tam cannot be sustained. 1 Phila. R. 251. (4) By act 8 April 1851, 3 82, fines and penalties under the ordinances of any borough, . are recoverable before any justice of the peace of the borough ; and to be paid over to the treasurer for the use of the corporation. Purd. 122, ; ACTIONS AT LAW. 87 of one hundred dollars may now be maintained before them: Provided, The partics. shall have the right tc appeal as in other cases. Act 5 April 1849, §7. Purd. 594... 4. In Actions on Foreign Judgments. The justices of the peace of this state shall have jurisdiction in actions of debt, on demands not exceeding one hundred dollars, founded on the judgment or judg- ments of any justice of the peace of any adjoining state, where a similar jurisdic- tion 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 jurisdiction of the justices of the peace thereof. Act 27 February 1845, § 3. Purd. 594. p : ; The plaintiff or the party in interest in such cases shall, as evidence of his demand, produce on the trial a copy of the record or docket-entry of the proceed- ings had before the justice who tried the original action,(a) 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 further 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 such 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. Ibid. § 4. The copy of the proceedings aforesaid shall be kept by the justice who shall try the case, as a part of the record, and it shall be a part of the record of the pro- ceedings of such justice. Ibid. § 5. III. ProckEDINGS IN CIVIL CAUSES. 1. Of the Process and Service. The said justices are hereby respectively empowered and required, upon com- plaint being made(6) to any of them touching any such demand as aforesaid, to issue a summons, if the party complained of be a freeholder, if not, either a sum- mons or a warrant of arrest,(c) directed to the constable (d) 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 ; (e) if on a summons, commanding him (a) 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 Gisson, deliver- ing the opinion of the supreme court, says— “Tdentity of name is ordinarily, but not always, primé facie evidence of personal iden- tity. The authorities on this subject may be consulted in Sewall v. Evans (14 Ad. & Ellis 632), from which Lord Denman, and the other judges of the Queen’s Bench, concluded that identity of name is something from which an inference may be drawn, unless 4 ¢ name were @ very common one, or the transaction remote ; and the reason given for casting the onus on the party who denies is, that disproof can be readily had, by calling the person, whose identity is contested, into court.” 2 Barr 183. And see 2 W.C. C. R. 201. 12 Verm. 9. 4 Monr. 451, 526. 2 P. L. J. 802. 2Am. L. R. 499. 2 Eq. Ca. Abr. 585. 4 Smith (N. Y.) 87. (4) ‘Upon complaint being made.” A com- plaint must be 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. He cannot enter a judgment on @ warrant of attorney. 1B. 105. - (c) A justice, since the passage of the act of 1842, can only issue a warrant of arrest in ‘cases of trespass or trover, for the recovery of money collected by a public officer, or for official misconduct. (@) “Directed to the constable.” The magistrate cannot legally direct his civil pro- cess to any other person or déscription of persons, than those by law specially autho- rized to serve them. A constable may, but a justice may not, depute another to serve a civil warrant at the request and risk of the plaintiff. There is no such authority vested in the justice. e) It is the universal practice for justices to issue their precepts to any constable of the county. 78. & R. 358-54. And his sureties 88 ACTIONS AT LAW. to cause the said defendant to appear before the said justice on a certain day therein ‘to be expressed,(a) not more than eight nor less than five days after the date of the summons ; (b) and the service on the defendant shall be by producing the original summons to, and informing him of the contents thereof, or leaving a copy of it at his dwelling-house (c) in the presence of one or more of his family (d) or neighbors, at least four days before the time of hearing;(e) but if on a warrant of arrest, forthwith on the service of the same: Provided nevertheless, That in 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 captas may have been issued, in the following words: “We, A. B. and C. 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., Esquire, justice of the peace in the said township of , on the day of , to answer in a plea Witness our hands the day of ye 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 obligation 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 appearance so taken by the constable shall be insufficient, the con- stable shall be liable therefor, as sheriffs now are, to the plaintiff or plaintiffs named in the warrant or capéas, 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 sctre facias,(g) 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 prin- cipal to the jail of the proper county within ten days(h) after the service of the scire facias, in the discharge of the bail: nevertheless, 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. Act 20 March 1810, § 2. Purd. 594. [A certified (¢) copy of such recognisance, by the justice of the peace, shall be are bound, though he be not the constable of the proper township. 7S. & R. 349. A pre- sept directed to , constable, if executed by the proper officer, is well directed. 6 B. 128. But the constable of one township who sells property under an execution directed to the constable of another township, is a mere trespasser, and his acts are utterly void. 3 Barr 349. (a) The summons is to be returnable “on acertain day therein to be expressed.” The form and manner of service, and the consta- ble’s return of this process, may be found fully set forth under the title “Summons.” “If » warrant shall issue.” it becomes the duty of the constable, or his deputy, forth- with, on the arrest of the defendant, to take him before the justice, unless he shall give bail, in the form set forth in the second sec- tion of the act now under consideration. (6) In case of non-residents from two to four days; ifra, 2. In computing the time, both the day of the issuing and the return day are to be counted. 6 H. 48. See 5 C. 524-6. (c) If the defendant does not appear, and thereby waive any defect in the service of the summons, it is essential that the consta- ble’s return should 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 de- Sfendant,” is insufficient, where the defendant does not, appear. Soa return of ‘left a copy at defendant's boarding-house,” is insufficient ; and so, also, is a return of ‘‘copy served on defendant.” Com. Pleas, Phila., Nov. 14, 1848, per Kina, President. MS. 2 Pars. 232, 2865, Purd. 418, m. 3 Pittsburgh L. J. 801. But a judgment rendered on such insufficient return, although irregular, is not void. 6 H. 120. See 3 Am. L. R. 248. (d) It is not necessary that the return should show that the copy was left with an adult member of the family. 2 Phila. R. 259, (e) Unless process be served before the return day, the proceedings before a justice are coram non judice, and void. 8 Barr 410. 4 Comst. 879. 1 Phila. R. 427-8. .(g) A sci. fa. is to be served in the same Manner as a summons. 1 Phila. R. 252-4, It must be issued by a justice of the county where the bail resides. 5P.L. J. 481, - h) See 1 Ash. 74. 58S. & R. 899. ¢) The only part of this section that is in force is the conoluding portion, providing for the entry of judgment against special bail, in cases in which the justice is authorized to issue a capias or warrant of arrest. ACTIONS AT LAW. 89 a sufficient authority for the special bail, or any person authorized by him, to take the principal within this commonwealth, and to deliver him to the jail of the county wherein the proceedings were had, and the jailer and sheriff are hereby directed to receive him, and keep such principal so surrendered, together with the bail-piece upon which the surrender was made, until he shall be discharged by law:] and where no appeal shall be made from the justice, and the special bail do not sur- render the body of the defendant to the jail of the county, for which he shall have authority as above directed, on or before the return day of the scire facias issued by the justice against such bail, and cannot show sufficient cause why he should be exonerated, the justice shall enter judgment and issue execution without stay against him for the same. Ibid. § 5. No execution issued on any judgment rendered by any alderman or justice of the peace, upon any demand arising upon contract, express or implied, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue,(a) unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of the alderman or justice of the peace, either that such judgment was for the recovery of money collected by any public officer, or for official misconduct.(b) Act 12 July 1842, § 23. Purd. 595. 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 required as for the issuing of an execution by the provisions of said section. Ibid. § 24. All summons issued by any alderman or justice of the peace, may designate the hours of the day between which the same shall be returnable ; and if either of the parties fail to appear during the time so designated, it shall be lawful for the said alderman or justice of the peace to render judgment, or otherwise determine the same, as is provided by law. Act 26 April 1855, § 1. Purd. 595. 2. Process in case of Non-Residents. 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 be- come 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 23d section of this act, or a summons 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 men-. tioned therein, and if the same shall be returned, personally served, the justice or alderman issuing the same, may proceed to hear and determine the case in the manner heretofore allowed by law. Act 12 July 1842, § 25. Purd. 595. ‘Whenever, by the provisions of the 24th section of this act, no capias can issue, and the defendant shall reside out of the county,(c) he shall be proceeded against by summons or attachment, returnable not less than two nor more than four days from the date thereof,(d) which shall be served at least two days before the time of appearance mentioned therein.(e) Ibid. § 26. Where any person or persons, not being residents of this commonwealth, shall engage in business in any county within this commonwealth, and not being in the (a) In an action for a penalty, which is directed to be recovered ‘‘as debts of like amount are by law recoverable,” the defend- ant is not liable to arrest; an execution, in such case, authorizing the imprisonment of the person is void, and the defendant may be discharged on habeas corpus. Martin’s Case, Com. Pleas, Phila., 15 April 1854. MS. See 1D. 185. 4 Y. 287, 240. (5) Women are not relieved from arrest for debt by this act, but by that of 19 February 1819 (7 Sm. 150), which provides that no female shall be arrested or imprisoned for or by reason of any debt contracted after its passage. And this provision is re-enacted by the act 13 June 18386, 3 6. (P. L. 578.) Mor- ris v. Hofheimer, District Court, Phila., 6 June 1860. MS. And see 1 Ash. 373. (ec) This does not authorize them to issue attachments against the property of persons not residing within the state. 1 H. 128. (d) If a non-resident of the county be sved by a long, instead of a short summons, the judgment is void; the justice thereby acquir- ing no jurisdiction of the person of the de- fendant. 5 Hill 285. 4 Comst. 384. (e) See title ‘Attachment against Absent and Fraudulent Debtors.” And Purd: 31. 1 90 ACTIONS AT LAW. county at the time of the issuing of any writ or process against such person or per- sons, it shall be lawful for,the officer charged with the service thereof, to serve any writ of summons, or any other mesne process, in like manner as summons are served, upon the agent or clerk of such defendant or defendants at the usual place of busi- ness, or residence of such agent or clerk, with the same effect as if served upon the principal or principals personally: Provided, That before final judgment is entered in any case under this act, actual notice in writing shall be given to the party defendant, of such action, and the nature thereof; proof of which notice shall be made by the production of a copy of such notice, and the oath or affirma- tion of the plaintiff, or other person, to the service thereof, to the magistrate or court before which such action may be pending. Act 2 April 1856,§1. Purd. 31. When any person or persons not being residents of this commonwealth, shall engage in business in any county of this commonwealth, it shall and may‘be lawful for the officer charged with the execution of any writ or process issued out of any of the courts of this commonwealth, to serve the same upon any clerk or agent of such person or persons, at the usual place of business or residence of such agent or clerk, with like effect as though such writ or process was served personally upon the principal. Act 21 April 1858, § 1. Purd. 31. 3. Amicable Actions. 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 pur- poses.” Act 22 March 1814, § 7. Purd. 595. , 4. Judgments by Default. In case the defendant does not appear(a) upon summons, on the day ap- pointed, the justice may, on due proof, by oath or affirmation,(b) of the service of the: summons as aforementioned, proceed to give judgment by default,(c) publicly, against such defendant, allowing twenty days as aforesaid for an appeal, where the defendant be a freeholder, before any further proceedings are had; but in case he is not a freeholder, the justice may then issue an execution, directed to a constable as aforesaid, who shall proceed as in other cases; but if the defendant, within twenty days after such judgment, shall enter [special] bail, and pay the costs accrued on the execution, he shall then be entitled to an appeal (d) or stay of execu- (2) “In case the defendant does not ap- pear.” This section is full and clear in directing the justice how he is to proceed, what order he is to take, “if the defendant does not appear,” and also, ‘“‘in case the plaintiff does not appear,” at the time at which the process issued requires their attend- ance, or, to use the language of the law, ‘on the day appointed.” It is a generally received maxim, that ‘the law knows no fractions of a day.” The business in the office of a justice of the peace could not however be transacted, with any tolerable convenience to parties, or rather without much loss of time to parties and witnesses, if the law did not acknowledge and sanction generally recognised divisions of days as well as days themselves. For example, it is believed that every justice of peace, in Pennsylvania, when he issues a summons, appoints an hour, as well as a day, at which he requires the parties to appear. In some districts, as in the city of Philadelphia, the hour having arrived at which the parties are required to appear, half an hour longer is allowed, if the parties are not present and ready to go on, before the justice proceeds to hear the case. In other districts, it is prob- able, there are other points of time established by custom, before the arrival of which the justices do not proceed to give judgment. The time having at length arrived, and the plain- tiff being present, and the defendant, on being called, failing to answer, the justice proceeds to hear and examine the proofs and allegations of the plaintiff, and then gives judgment by default, publicly, against such defendant. ‘(Tn case the plaintiff does not appear,” and the defendant does, the justice, if required, may give judgment of nonsuit against the plaintiff; or he may, for sufficient cause, or by consent, adjourn the hearing to another time. (2) To sustain a judgment by default, it must appear by the record, that the constable was sworn to his return. Fitzgibbons v. Es- sen, Com. Pleas, Phila., 10 March 1862. MS, (c) He must first hear evidence in support of the plaintiff’s claim: the law says he shall give judgment, after hearing the parties, their proofs and allegations, 1 Phila. R. 519. 8 Pittsburgh L. J. 885. (d) See 1 Ash. 408. The entry of bail for an appeal, though it may stay the immediate execution of a fi. fa. or other final process, a ACTIONS AT LAW. 91 tion, in the same manner as though the bail had been entered at the time of render- ing such judgment: and in case the plaintiff does not appear, either in person or by agent, to substantiate his charge, the justice may then, or at such other day as he may judge reasonable, proceed to give judgment against him by nonsuit,(a) for the costs, and fifty cents per day for the reasonable costs of the defendant, for his trouble in attending such suit. Act 20 March 1810, § 6. Purd. 596. 5. Of the Trial before the Justice. If the parties appear(d) before the justice,(c) either in person or by agents,(d) the justice shall proceed to hear their proofs and allegations,(e) and if the demand will not avoid all that has been done under such proceedings: in order fully to supersede the execution, it is necessary to perfect the appeal by bringing it into court. Lee v. Far- rell, Com. Pleas, Phila., 14 May 1853. MS. ‘65 C. 240. 1f, however, the execution be re- turned, the lien is gone, though the appeal be never perfected. 3 Wr. 284. (2) He can only enter judgment of nonsuit where there has been no appearance. 2 Barr 89. 5 H. 75. No appeal lies from a regular judgment of nonsuit, under this section. 1 Phila. R. 580. (8) If the parties voluntarily appear before the return day, and consent to the hearing, the justice may proceed to give judgment. 5 Binn. 29. 5 H. 48. (c) “If the parties appear before the jus- tice.” the law, ‘the justice” before whom the par- ties are to appear, is the justice who issues the process for their appearance. The issu- ing of the process, and its service, vest a right in the magistrate who issues it to pro- ceed in the suit, of which he cannot be divested by another whose authority is only equal to his own. : (d) The justice is the judge of the autho- rity of the agent. 5 H. 48. e) 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, “ gubject to the like exceptions, and under the usual obligations in which it would be re- ceived in the court of common pleas. Their “allegations,” that is, the statements of the parties, will he heard by the justice, without any oath or affirmation being administered to them. If, indeed, any of the parties shall be offered to prove original entries, it then be- comes 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 possi- ble 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 useful to permit the parties to make their allegations, and to talk of the business before him with all reasonable lati- tude. In the interchange of question and answer, statement and counter-statement, ad- missions and denials of the parties, he will often have much light shed upon the ma‘ters 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 It is clear from the phraseology of | to guard against the admission of any evi- dence, on the trial before him, which would be rejected by the court to which the appeal lies. A general knowledge of the law of evi- dence, of 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 the peace. The admis- sion 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 admin- istered, injustice and wrong, however unin- tentional, yet still injustice and wrong, would have been done to the plaintiff, as well as to the defendant, by the very person to whom he had applied, and on whom he had confi- dently relied that-right and justice should be faithfully administered. These truths make it incumbent on every man who undertakes to discharge the high duties, civil and crimi- nal, 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 the 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 no- body 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 entry 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 the court of common pleas, A. makes the same statement to the judges which he had made to the justice, and is told by them that such evidence is inadmis- sible, inasmuch as, on the score of interest, he could not be his own witness; and that it had been repeatedly ruled that an original entry could not be admitted as evidence of money lent; that it could only he received to prove work and labor done, or goods sold 92 ACTIONS AT LAW. shall not exceed five dollars and thirty-three cents, shall give judgment, as to right and justice may belong, which judgment shall be final: (a) 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 them to choose réferees,(b) one, two or three each, and mutually to agree upon a third, fifth or seventh man, all of whom shall be sworn or affirmed, “well and truly to try all matters in variance between the parties submitted to them ;” and on having heard their proofs and allegations, they, or a majority of them, shall make out an award, under their hands, and trans- mit the same to such justice, who shall thereupon enter judgment for the sum awarded,(c) 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,(d) shall be final and conclusive to both plaintiff and defendant, without further appeal ; and it shall be the duty of the justice to notify, through a constable or some fit person, each of the referees so chosen of their appointment, and of the time and place fixed for a hearing, and if any person so chosen and notified as aforesaid shall neglect or refuse to serve,(e) he shall, for every such neglect or refusal, unless prevented by sickness or some other unavoidable cause, forfeit and pay the sum of two dollars for the use of the poor, and where there are no poor, to be paid to the supervisors of the roads, to be applied by them in repairing the streets or public highways of the city or township in which such person or persons so refusing or neglecting shall reside, which fine shall be recovered before such justice of the peace, on complaint of the party injured, as other fines are by law recoverable: Provided, That an action be brought within thirty days after such neglect or refusal. Ibid. § 3. 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 judgment (g) and delivered; and that, therefore, he must either submit to a nonsuit or have judgment rendered against him. Where there exists an appellate jurisdiction, it is folly for the court below to govern itself by any other rules of evidence than those which are ac- knowledged in the court above. (a) ** Which judgment shall be final.” The sum in controversy not exceeding $5.33. It is not intended by the use of the word “final” to take away the right of taking the proceed- ings 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 title ‘ Certiorari.” (5) The cause can be referred only by con- sent of both parties. 3 P. R. 175. © (c) A justice of the peace may set aside an award of arbitrators appointed by consent 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. The award merges in the judgment. 38 Wr. 274. (d) If the plaintiff’s demand do not exceed $20, he can have no appeal. 28. & R. 463. 12 8. & R. 385. 8 P. R. 174. It is the amount of the demand or sum in controversy, and not the amount of the judgment, which regulates the right of appeal. 2 W. 304. 4 8. & R. 72. Where the sum sued for by the plaintiff, and set forth on the docket of the justice, is reduced by the judgment more than $20, an appeal lies for the plaintiff, . although the judgment is for a less sum than $20. 12 8. & R. 888. 9 W.17. 8 Barr 454. 1J.410. And in such case the defend- ant is likewise entitled to an appeal by act 20th March 1845. 1J.410. But if the plain- tiff claim $25, and there is an award in his favor for $11, neither party can appeal. 1, 340. And see 2 Phila. R. 291. The amount in controversy may beshown by parol. 2 W. 304. (e) ‘“‘Shall neglect or refuse to serve.” By an act passed March 26th 1814, it is enacted that if any referee ‘‘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 affirma- tions to witnesses, on the cause before them,” and to adjourn themselves to such time and place as they may deem proper. (g) The justice shall ‘‘ give judgment pub- licly.” That is, after having heard and ex- amined ‘their proofs and allegations.” The duty thus enjoined, and the manner in which it is enjoined, is of a peculiarly impressive character. The justice is nét only to hear, but he is commanded to examine, “the proofs and allegations of the parties,” and after having so heard and examined, he is to give judgment publicly, in the face of the parties, of their counsel, of their witnesses, and of whoever may be present to hear the judgment. It was manifestly the intention of the legis- lature in making this provision, to make the justice sensible that the eye é6f his fellow- citizens was upon him, that the ear of the constituted authorities was open to hear, and that his door should be open to admit all who may think proper to enter and conduct them- selves in a becoming manner. The justice is to give no judgment in private, he is abso- lutely forbidden so to do; all, says the law, shall be done ‘ publicly.” ’ The constitutional: injunction that ‘all courts shall be open,” is ACTIONS AT LAW. 93 publicly as to-him of right may appear to belong; (a) either party having the right to appeal,(b) within twenty days(c) after judgment being given, either by the justice alone, or on award of referees, when such award shall exceed the sum of twenty dollars.(d@) Ibid. § 4. A defendant who shall neglect or refuse in any case to set off his demand, whether founded upon bond, note, penal or single bill, writing obligatory, book account or damages on assumption,(e) against a plaintiff, which shall not exceed the sum of one hundred dollars,(g) before a justice of the peace, shall be, and is hereby, for ever barred (4) from recovering against the party plaintiff by any after suit:(¢) but in case of judgment by default,(&) the defendant, if he has any ac- here enforced to the letter, and it is else- where, in this law, enjoined upon magistrates. The legislature, in making this provision, acted under the conviction, that ‘ publicity,” _like light, is a powerful shield against mis- ‘behavior as well as crime. To carry out, as far as it can be carried out, this injunction, in judgments ‘‘by default,” the writer of this note makes it his constant practice when asked for a judgment by the plaintiff, to make public inquiry, that is, with a loud voice—‘‘ In the case of A. against B., is B. present, or anybody for him?” If there be no answer, the alderman proceeds—“ In this case there is judgment for the plaintiff for dollars.” The supreme court, carrying out the inten- tion of the legislature, to keep the justice, in all his acts, before the public, in a recent de- cision, (1 P. R. 15,) say—‘‘A justice of the peace, being a judicial officer, must have his court, or place of administering justice, and in order to the validity of an amicable judgment, upon his docket, the party con- fessing the same must be before him, and at his office.” In these amicable actions, and confessions of judgment, it would be well, in all cases, if both the parties were to sign their names upon the docket. . (a) He cannot enter a compulsory nonsuit, after appearance; but such judgment is con- clusive, unless appealed from: it is equivalent to a judgment that the plaintiff has no cause of action. 2 Barr 89. 6 H. 75. 3 H. 101. But the discontinuance of an action before a justice, after a hearing, is no bar to a subse- quent suit. 2 Am. L. R. 120. Although the plaintiff confess judgment for the costs. 8 H.9. 10.77. If, however, a plaintiff appeal from a judgment for the defendant on the merits, and then discontinue, he is bound. 3 W. 46. 10 Barr 70. (5) If the defendant have a cross-demand exceeding $5.38, and the decision of the justice be against his set-off, he is entitled to an appeal. 3 P.R.120. 2 W. 304. But it must be a bond fide claim to set-off. 6 H. 78-9. The parties may waive the right of appeal. 2S.&R.114. 8 W. 372. 1 Ash. 92. But it must be by agreement in writing. ‘7 8. & R. 366. An appeal lies from a judgment on a sci. fa. 88. &R. 93. And from ajudg- ment by cénfession. 1 C. 409. But no appeal lies from a regular judgment of nonsuit. 1 Phila. R. 580. (c) In computing the time, the day of judg- ment is to be excluded. 3S. & R. 496. 3 Phila. R. 425. 5 C. 525. (But see 4H. 14. 2 Phila. R. 340.) And if the twentieth day fall on Sunday, the appeal may be entered on the next day. 3 P. R. 201. 4 Barr 515. If the justice, by mistake, refuse an appeal, it may subsequently be entered, after the twenty days. 168. &R. 421. 2 Ash. 224. The entry of a rule to show cause why the judgment should not be opened after the expiration of the twenty days, does not give the right of appeal, on the discharge of the rule. 1 Phila. R. 425. See 3 Barr 211. 4P. L. J. 105. 9 Barr 106. But if such rule be taken within the twenty days, it extends the time for en- tering an appeal. 2 Ash. 224. It is too late to enter an appeal after the money is made on an execution, although within the twenty days. 7 W. 337, (d) The sum in controversy may be shown by parol. 2 W. 304. (e) This includes unliquidated damages arising from contract. 3 H. 362! 4 W. & 8. 290. 6 W. & 8. 155. (g) ‘Shall not exceed the sum of $100.” If the set-off shall exceed $100, it ‘must be rejected as beyond the jurisdiction of the justice. 1 Wr. 456. ‘‘But if the demand of the defendant be composed of several items, he may set off such of them as do not exceed the jurisdiction of the justice.” 3 P. R. 469. And where there have been mutual dealings or partial payments on account, and the balance is under $100, it has ever been the practice, under the act of 1810, to sue for the balance of the account before a magistrate. 1 J. 281. 1 Wr. 387. (4) This is imperative. 5 W. & 8S. 460. After process is issued by one justice, it is unlawful for the defendant to sue for a cross- demand before another. 1 Ash. 171. 2 Ash. 146. If, however, both suits be carried on without objection, both proceedings are valid. 3. 71. (2) But he is not barred from proving such set-off; on the trial of an appeal from the judgment of the justice. 2 Gr. 150. (£) ‘But in case of judgment by default,” ‘on proof being made” of certain facts, “‘ the defendant, if he has any account of set-off against the plaintiff’s demand, shall be entitled toarehearing.” It is doubted by some, whether a justice has any right to grant the defendant a rehearing, unless the judgment against him shall have been ‘by default.” And it has lately been decided by the court of common pleas of Philadelphia county, that a justice has no power to open his judgment, except under the circumstances and in the manner provided by statute, to wit: 1. At the instance of the appellant, with the consent of the ad- 94 ACTIONS AT LAW. count to set off against the plaintiff’s demand, shall be entitled to a rehearing (a) before the justice within thirty days, on proof being made, either on oath or affirma- tion of the defendant, or other satisfactory evidence, that the defendant was absent when the process was served, and.did not return home before the return day of such process, or that he was prevented by sickness of himself, or other unavoidable cause; and the justice shall have power to render judgment for the balance in favor of the plaintiff or defendant, ‘as justice may require. Ibid. § 7. In all bonds, bills or notes, wherein, by a special provision in writing (6) for that purpose, is waived the stay of execution, given by this act, any justice may, on application to him made, after such bond, bill or note becomes due, issue a sum- mons [or capias,] as the case may be, and proceed to hear and determine the same, as in other cases; and on judgment being rendered in favor of the plaintiff, he shall or may issue execution thereon without stay; nevertheless that in case of judg- ments, by default, the defendant shall, at any time within twenty days thereafter, be entitled to a rehearing or appeal, agreeably to the provisions of the 6th and 7th sections of this act, although execution may have issued.(c) Ibid. § 13. A defendant against whose body, by the provisions of this act, an execution cannot be issued by an alderman or justice of. the peace, shall be required, in order to obtain an [appeal, stay of execution (d) or] adjournment, to give a bond or re- cognisance in the nature of special bail,(e) conditioned that no part of the property of the defendant which is liable to be taken in execution, shall be removed, secreted, assigned or in any way disposed of, except for the necessary support of himself and family, until the plaintiff’s demand shall be satisfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution issued on the judg- ment obtained in such cause, if he shall obtain such judgment; and if the condition of such bond or recognisance be broken,(g) and ati execution on such judgment ‘be returned unsatisfied in whole or in part, the plaintiff in an action on such bond or recognisance, shall be entitled to recover the value of the property so removed, secreted or assigned. Act 12 July 1842, § 33. Purd. 597. verse party, under 3 4 of the act of 1810: 2. Where the defendant is entitled to a ‘rehearing, after judgment by default, under 3 7 of the same act: 3. In @ proceeding un- der the act of 12 July 1842, where the process has not been served personally on the defend- ant. 1 Phila. R. 620. Ibid. 515. It seems, that even the courts of common pleas have no power to open their judgments, obtained adversely, after the expiration of the term at ~ which they were entered. 2 W. 878-80. 6 W. 518. 9 C. 485. (2) ‘Shall be entitled to a rehearing.” The justice should be satisfied that the plaintiff has had proper notice of the meeting at which the “rehearing” is to be claimed; that it is not artifice, or a mere pretext for delay on the part of the defendant, but that he has, or thinks he has, a just claim against the plaintiff. The justice, on this, as on every other occasion, must guard the rights and protect the interests of both parties. It is for that purpose he has been selected and commissioned. The time for an appeal is to be computed from the rehearing of the’ case. 8 Barr 211. 1 Phila. R. 425. (5) By a special provision in writing.” This is an important section, as the principle it recognises, that of a party waiving a right, has recently been applied to various other purposes than waiving ‘the stay of execu- tion.” And such agreements have been uni- formly sustained by the courts, alth sugh they are strictly construed. Thus, the parties may waive the right of appeal. 28. & R. 114. 2 Br, 99. 1 Ash. 92. But such agreement must be in writing. 78. & R. 866, They may also waive the right to except to an award of arbitrators. 5 B. 887. 58. & R. 51. 3 P. RK. 99. 2J. 1838. 7H. 419. 5 C. 283. 9 C. 585. And even to sue out a writ of error, which is a writ of right. 128.&R.416. 8P.R. 291. 1 Smith (N. Y.) 587. So, a tenant may by agreement waive the benefit of the exemp- tion pee and it will be binding on him. 6 Wz 84. The statutory privilege of the exemption of a portion of his property from levy and sale under execution, is one which may be waived by the debtor, and when made at the time the debt is created, the waiver is based upon the same consideration as that upon which rests the liability to pay, and is there- fore irrevocable. 7 C. 225. 2 P. 279. 11 H. 93. But he cannot waive his right in favor of a younger lien-creditor, nor can he assign it toa third person. 9 H. 210. 8C. 160. A verbal agreement to waive the exemption, made without consideration, is not binding on the debtor. Pittsburgh Leg. J., 6 January 1855. (c) It is the province of the justice to deter- mine whether the appeal be regularly taken ; and if he allow it, the constable cannot refuse to recognise it on the pretence that the- justice committed an error. If he proceed with the execution, he becomes a trespasser. 8 C. 199, : (d) Repealed as to bail on appeal and for stay of execution. e) See 9 W. & S. 142. t) A sale under a subsequent execution is a breach of such recognisance. 1 H. 86. See 4 Barr 339. So is a general assignment for the benefit of creditors. 5 P. L. J. 164. Sn ee ACTIONS AT LAW. 95 -6. Of Depositions. Upon the affidavit of either party, or their agent, that the testimony of any material witness is wanted, who resides out of the county, or from his infirmity of body or other causes, cannot be obtained personally, the cause shall be postponed to a certain day,(a) within such reasonable time as the distance of the witness, the season of the year, and the circumstance of the roads, may render it proper, to obtain: the deposition of the witness ‘wanted’; and whenever a’ cause is postponed at the instance of the defendant, he shall enter into a recognisance for a sum sufficient to cover the demand in question, together with the costs, with one sufficient surety [for his appearance (2) on the day fixed as aforesaid;] and whenever a rule for taking the deposition of a witness or witnesses shall be applied for, as aforesaid, the party so applying shall file a copy of the interrogatories or questions intended to be asked the witnesses, and a copy of such interrogatories or questions shall be de livered to the opposite party or his agent, who may also file such additional ques- _, tions as he may, think proper: Provided, The same be done within four days after the receipt of such copy: which rule and interrogatories being certified by the justice before whom the cause is depending, shall be sufficient authority for the justice who may be named in said rule, to take the answers of such witnesses as may be therein named; but where the witnesses reside in the county, or in cases where the parties or their agents agree to enter a rule to take depositions, it may be done without filing interrogatories, upon notice given, agreeably to the rule, of the time and place appointed for the examination of the witnesses, and testimony so taken shall be read in evidence on the trial before the justice or referees. Ac 20 March 1810, § 8. Purd. 597. In all cases when.a suit shall be pending before a justice of the peace, it shall and may be lawful for either party to obtain testimony out of the state, in the same manner as is directed by the 8th section of the act to which this is a supplement. Act 30 March 1829, § 1. Purd. 597. In all such cases, where it shall not be convenient to take the testimony of witnesses before a justice of the peace, it shall and may be lawful for the party or parties to name a commissioner, who on receiving a certificate of his appointment, with a copy of the rule and interrogatories, certified by the alderman or justice of the peace, shall have authority to administer oaths and affirmations, and take the answers of witnesses therein named; and depositions so taken shall be as good to all intents and purposes as if the same were taken before a justice of the peace. Ibid. § 2. In all cases where a commission shall be issued from, or a rule be taken in any court of record in this commonwealth, or from any justice of the peace, or alder- man, under the act entitled ‘An act to amend and consolidate with its several supplements, the act entitled ‘An act for the recovery of debts and demands not exceeding one hundred dollars before a justice of the peace, and for the election of constables, and for other purposes,’ ”’ and of the supplement thereto, passed on the 30th day of March 1829, for the examination of witnesses, it shall be competent for the person or persons named in or authorized by such commission or rule, to issue subpeenas to such witnesses as may be requested by any of the parties con- cerned, requiring their attendance at a certain day, hour and place therein desig- nated, having regard to the distance of such witnesses, and under a penalty not exceeding one hundred dollars. Act 26 February 1831, § 1. Purd. 423. In case of the non-attendance of such witnesses, it shall be lawful for such com- missioner, or person or persons duly authorized as aforesaid, on proof, by oath or aff nation, of the due service of the subpcena, to issue process of attachment against the defaulting witness; whereupon the same proceedings shall be had, as are used and allowed in like cases, in the courts of record of this common- wealth.(c) Ibid. § 2. (a) ‘‘The cause shall be postponed toaday ance of the parties, be again taken up for con- certain.” If the case shall be adjourned sideration. . without being postponed ‘to a day certain,” (5) For condition of recognisance, see it may be considered as finally dismissed. It supra, p. 94. io may, however, by agreement, and the appear- (c) A defaulting witness, when brought in on 96 ACTIONS AT LAW. The party injured by such non-attendance shall also be entitled to the same remedies at law against the person subpoenaed, as are provided when a subpoena 18 issued from a court of record. Ibid. § 3. j If the person subpoenaed shall attend, but refuse to testify, he shall be liable to the same proceedings on the part of the commissioners, or persons authorized as aforesaid, as if he had appeared and refused to testify in a court of record.(a} Ibid. § 4. 7. Proceedings before Referees. No action brought before a justice of the peace, or alderman, shall be referred to referees for trial, unless by agreement, or express consent of both parties to the action, or their agents; which agreement, or assent, shall be noted by such justice, or alderman, upon his docket. Act 26 April 1855, § 1. Purd. 604. - If any referee appointed under the 8d section of the act to which this is a sup- plement,(b) or under an act regulating the proceedings of justices of the peace and aldermen, in cases of trespass, trover and rent, shall not attend at the time and place fixed for hearing the cause, it shall be the duty of the referee or referees present (where the parties cannot agree on the person or persons to supply the vacancy, or where only one of the parties attends), to appoint proper persons in place of those who may be absent, and the referees thus appointed shall have the same authority as those originally appointed.(c) Act 26 March 1814, § 1. Purd. 596. The said referees shall be sworn or affirmed by an alderman or justice of the peace, or they may swear or affirm each other, and then any of them shall have power to administer oaths or affirmations to witnesses, in the cause before them ; and the said referees, or a majority of them, shall have power to adjourn their meetin: to any other time or place, and as often as they may deem proper.(d) Ibid. § 2. Referees, or arbitrators, as aforesaid, or a majority of them, shall also have power to punish by fine, not exceeding twenty dollars, all persons, whether parties, wit- nesses or others, who shall be guilty of disorderly conduct in their presence, or who shall insult, disturb or interrupt the said referees or arbitrators, when in business, which fine shall be recovered as follows: Act 16 June 1836, § 43. Purd. 58. The said referees or arbitrators, or a majority of them, shall make out a certifi- cate in the following form, viz.: Ibid. § 44. We, the undersigned referees (or arbitrators, as the case may be), do certify that A. B. this day, at ——, in the county of ——, before us, did conduct himself in a disorderly manner (or as the case may be), tending to insult, disturb and interrupt us in the trial of a-certain cause, wherein C. D. is plaintiff and E. F. is defendant, for which offence we have fined him, the said A. B., the sum of —— dollars, which sum you are hereby required to collect according to law. (Signed by the Arbitrators or Referees.) The certificate aforesaid shall be transmitted to an alderman or justice of the peace of the proper city or county, who is hereby required to make a record thereof, and issue execution to collect the same, in the manner that judgments under one dollar are by law collected; and the sum, when collected, shall be paid by such alder- man or justice to the county treasurer, for the use of the county in which the offence may have been committed. Ibid. § 45. an attachment, is called up to purge himself of the alleged contempt, which if he do to the satisfaction of the court, he is dismissed without more; bwt if he fail to purge himself, the court adjudges him guilty of contempt, and imposes the costs of the attachment, and such additional fine as, in their discretion, the case seems to demand; and in default of payment, he may be committed to jail to com- pel execution of the sentence. But he can- not be sentenced to imprisonment for such a contempt; this is forbidden by the act of 16 June 1886, Purd. 188, which provides that all contempts except such as shall be committed in open court, shall be punished by fine only. 1 Gr. 456. (a) A witness who refuses to be sworn, in a court of record, is guilty of a contempt punishable by fine and imprisonment. And the same power is vested in an alderman, or commissioner appointed to take depositions under this act. 4 P. L. J. 126. A commit- ment for such a contempt is without pre- scribed limitation, and is determined by the willingness of the party to submit himself to the law. 4 Am. L. R. 17, 2. 22-8, 42, b) See supra, p. 92. c) After the referees have all met and been sworn, vacancies cannot be supplied. 7 W. 495. No authority is given to supply a second vacancy. 7 W. 495. (d) The referees may adjourn before being sworn, 18. &R. 231. 68. & R. 275. ACTIONS AT LAW. 97 The prothonotary of the court in which the suit shall be depending, or any alder- man or justice of the peace, shall have power to issue subpoenas for witnesses to appear before the arbitrators. Ibid. § 46. All fines and forfeitures incurred. under any of the provisions of this act, shall, unless it be otherwise provided, be sued for, before an alderman or justice of the peace, in the same manner that debts of equal amount are recoverable. Ibid. § 53. IV. OF THE APPEAL, 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 defendants in all cases wherein, by existing laws, the right of appeal is enjoyed by the plaintiffs.(a) Act 20 March 1845, § 8. Purd. 599. If the parties are dismissed before an appeal is made, the justice shall, at the instance of the appellant, notify through a constable, or other fit person, the adverse party to appear before him, on some day certain; and if the parties shall appear on the day appointed, it shall be in the power of the justice, with consent of the parties or their agents, to open his judgment and give them another hearing; but if they will not agree to such rehearing, the party appellant (d) shall be bound with surety (c) [in the nature of special bail], unless such party appellant be an exe- cutor or administrator [body corporate 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.(d) Act 20 March 1810, § 4. Purd. 599. In all cases where the guardian of any minor is or shall be a party to a suit, either before a justice of the peace, or in the common pleas, such guardian shall be allowed to appeal from the judgment of said justice, and from the award of arbi- trators, without making the usual affidavit, and without giving surety or paying costs. Act 27 March 1833, § 1. Purd. 599. ' In lieu of: the bail heretofore required by law, in the cases herein 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 (g) of costs accrued and likely to accrue in such cases, with one or more sufficient sureties, conditioned for the payment of all costs accrued or that may be legally recovered in such cases against the appellants.(h) Act 20 March 1845, § 1. Purd. 599. When any corporation (municipal corporations excepted), being sued, shall (2) This act makes the right of appeal reciprocal in all cases. 1 J. 410. But it does not extend the plaintiff’s right of appeal ; and consequently, where previously the plain- tiff had no right of appeal, this act does not confer such right on the defendant. 1. 340. (6) The appellant need not join with his surety in the recognisance. 6 B. 52. An appeal by one of two defendants is good as to the one who appeals, though the other come into court and dissent. 1& & R. 492. (c) Until the transcript is actually filed, the justice retains the right to decide on the sufficiency of the bail. 6 Barr 194. 1 Ash. 47. And the defendant cannot defeat the justice’s jurisdiction by filing the transcript, after notice that his bail is excepted to. 1 Ash. 80. Where, however, the common pleas is in possession of a case, in the shape of an appeal, although defectively entered, the oe of the justice terminate. 1 Ash. 168. (d) All recognisances of special bail were abolished by the act 12 July 1842; and the omitted part of the section, providing for the condition of a recognisance on appeal, is supplied by act 20 March 1845. (e) This does not include municipal corpo- rations. 1 Phila. R. 402. (g) The recognisance should be in a sum certain. 1 P.R. 9. 1J. 293. But a recogni- sance ‘‘in $20, or such sum as may be neces- sary to pay all costs that have or may accrue in the case, in prosecuting this appeal,” was held sufficient. 2 H.'158. See 7 H. 356. After the defendant has had the benefit of his appeal, an objection that the recognisance contained no penalty will not be allowed.to prevail. 10 H. 838. And see 2 Wr. 500. , (4) If a defect exist in the form of the recognisance, the practice is, to apply to the court for a rule upon the appellant to perfect his appeal within a given time, or show cause why it should not be dismissed; it would be error to quash the appeal in the first instance. 168. & R. 249. 2P. R. 481. 1 W. & S. 378. 5 W. & S. 363. An objection to the form of the recognisance will be waived by any step taken to prepare the case for trial. 1 J. 336. Where an appeal does not lie, no waiver will give jurisdiction; but where an appeal does lie, the party may, by treating it as regularly in court, waive a defect which would other- wise be fatal. 1 Ash. 168, 48. & R. 190. 5 H. 89. 98 ACTIONS AT LAW. appeal or take a writ of error, the bail requisite in that case shall be taken abso- lute, for the payment of debt, interest and costs on the affirmance of the judg- ment.(a) Act 15 March 1847, § 1. Purd. 600. a The costs on appeals hereafter entered, from the judgments of the justices of the peace and aldermen,(®) shall abide the event of the suit;(c) and be paid by the unsuccessful party as in other cases: Provided, That if the plaintiff be the appel- lant, he shall pay all costs (@) which may accrue on the appeal, if in the event of the suit he shall not recover a greater sum or a more favorable (e) judgment than was rendered by the justice. And provided also, That if the defendant, either on the trial of the cause before the justice or referees, or before an appeal is taken,(g) shall offer to give the plaintiff a judgment (h) for the amount which the defendant shall admit to be due, which offer it shall be the duty of the justice and of the referees to enter on the record,(¢) and if the said plaintiff or his agent shall not accept such offer, then and in that case, if the defendant shall appeal,(%) the plain- tiff shall pay all the costs, which shall accrue on the appeal, if he shall not, in the event of the suit, recover a greater amount(2) than that for which the defendant offered to give a judgment; and in both cases the defendant's bill shall be taxed and paid by the plaintiff, in the same manner as if a judgment had been rendered in court for the defendant. Act 9 April 1833, § 1. Purd. 600. All which proceedings so had before the justice, shall be entered at large by him in a docket(m) or book to be kept by him for that purpose, in which he shall state the kind of evidence upon which the plaintiff’s demand may be founded, whether upon bond, note, penal or single bill, writing obligatory, book debt, damages on assumption, or whatever it may be; and the whole proceeding, in case of appeal, shall be certified to the prothonotary of the proper county, who shall enter the same on his docket, and the suit shall from thence take grade with, and be subject to the same rules as other actions(n) where the parties are considered (a) This applies to an appeal from the judg- ment of a justice of the peace. 98. & R. 227. (4) This applies to appeals in cases of tres- pass and trover. 7 C. 424. (c) A plaintiff is entitled to recover full costs, although the amount finally recovered be not so great, either as the judgment of the justice, or the award of arbitrators out of court, from each of which the defendant appealed. 7 W. 235. 5 W. 508. So, if the defendant appeal from the judgment of a justice in his favor, for a sum certain, and on the trial there be a verdict and judgment for him for a less amount, he is, nevertheless, entitled to full costs. 7 W. & S. 313. 4 W. 889. But ifthe defendant recover judgment, before the justice, for a sum certain, and the plaintiff appeal, and the award of arbitrators in court be ‘“‘no cause of action,” neither party can recover costs. 2 W. & 8. 86. And where the justice gave judgment for the de- fendant for $17.34, from which the plaintiff appealed, who, on a rule of reference entered by him, obtained an award in his favor for #5, from which the defendant appealed; and upon a trial in court, there was a general verdict for the defendant: it was held, that the defendant was entitled to judgment for the costs which had accrued prior to the appeal from the judgment of the justice. 6 Barr 463. (d) This does not include the counsel fee of $4, and daily pay, allowed by the act of 1810. 8 W. & 8. 274. 7 W. 285. 7 Barr 125. (ce) See 2 Barr 65. 3 P. L. J. 289. 1P. RB. 23, 4P. L. J. 3877. (g) An offer made afterwards although before the justice has made out his transcript of the appeal, is too late. 1 Barr 188. But it may be made at any time before the appeal is taken, thought he plaintiff .be not present. 6 W. 494. (h) A tender before the justice of a sum of money equal to the amount recovered, is not sufficient. 4 W. 389. Nor is a tender of such sum, together with the costs accrued. 4 Wh. 78. (i) The record is the only evidence of it. 4 W. 389. 1 Barr 38. It is not sufficient that it appear in the certificate to the justice’s transcript. 2 J. 255. But if such offer be entered on the record, it is error to receive evidence that it was in fact conditional in its terms. 3 H. 41. (£) This proviso has no application where the appeal is taken by the plaintiff. 10 H. 298. (2) To entitle the plaintiff to costs, in such a case, he must recover a greater sum than that for which the defendant tendered a judg- ment, with the interest added. 8 Wr. 111. (m) ‘* All proceedings had before the justice shall be one at large by him in a docket.” The manner of making entries and of keeping the docket is so important to the public as well as to the justice, that it is though best, in @ separate article under the head of ‘‘The Docket,” to give some general advice as to the manner of keeping the docket. Where a suit before a justice is terminated by any act or agreement of the parties which amounts, directly or indirectly, to a discontinuance of the action, it is part of the official duty of the justice to enter such act or agreement upon his docket, and the docket entry is evidence of the same. 9 Hi. 66. ; (n) After the appeal is filed, the proceedings in court are de novo as to the declaration, pleadings and evidence; the cause of action must, however, continue the same. 1 B, 219. 3 B. 45. And nothing can be recovered in « ACTIONS AT LAW. 99 to be in court, and the costs accrued before the justice shall await the event of the suit. Act 20 March 1810, § 4. Purd. 600. Provided always, That if the party appellant shall enter bail to appeal within twenty days after judgment being given as aforesaid, such appeal shall be effectual, in case such party appellant shall file the transcript of the record of the justice, in the prothonotary’s office, on or before the first day of the next term (a) of the court of common pleas of the proper county, after entering such bail as aforesaid :(b) Provided, That upon any such appeal from the decision, determination or order of [two] justices (c) of the peace to the court of common pleas or court of quarter sessions in any county, the cause shall be decided in such court on its facts and merits only; and no deficiency of form(d) or substance, in the record or proceed- ings returned, nor any mistake in the form or name of the action, shall prejudice either party in the court to which the appeal shall be made:(e) Provided further, If any executor or administrator shall declare before the justice, after judgment against him, that he has not sufficient assets to satisfy such judgment, it shall be the duty of the justice forthwith to transmit the record of his judgment to the prothunotary of the court of common pleas, to be entered on his docket, and the said court shall adjudge and decree thereon, and appoint auditors to ascertain and apportion the assets according to law, as in other cases. Ibid. In all cases where an appeal is taken from a judgment of a justice of the peace or alderman, and the appellant neglects or refuses to file the same in the prothono- tary’s office of the proper county, according to law, it shall and may be lawful for the justice or alderman before whom the judgment was entered, to issue an execu- tion for the amount thereof, at the instance and request: of the appellee, or proceed by scire facias against the bail.(g) Act 1 April 1823, §5. Purd. 601. In all cases in which judgment shall have been rendered for plaintiff, by any alderman in the city of Philadelphia, no appeal shall be allowed unless the defend- ant shall make oath or affirmation, to be filed in the cause, that the same is not intended for delay merely. Act 1 May 1861, §1. Purd. 601. All appeals from aldermen as aforesaid shall be filed in the court of common pleas of the city and county of Philadelphia, on or before the monthly return day in said court, next ensuing the date of the entry of the judgment before the alder- men, instead of to the first day of the next term as heretofore. Ibid. § 2. before the justice, except the intermediate interest. 108. & R. 227. See 1 W.&S. 301. The form of action may be changed on an appeal, provided the cause of action remain the same. 2 W. 14. 1 R. 870. A.plaintiff cannot discontinue his own appeal so as to authorize him to proceed on the original judgment. 10 Barr 70. 3 W. 46. (a) It must be filed to the next term, although the 20 days may not have then expired. 3P.R. 416. But a defective appeal may be withdrawn, and other bail entered within the 20 days, though a return day has intervened. 2 J. 363. (4) The appeal need not be filed within 20 days after the judgment; it is enough that it be entered in the docket of the court at any time before the next return day. 3 B. 432. A party who makes the justice his agent for the purpose of filing his appeal, is not entitled to relief if the justice neglect to do so. 2 W. 72. (ec) The word ‘‘two’’ is here inserted by mistake; it applies to appeals from a single justice. 7 W. 180. 8 Wh. 82. 1 H. 64, 174-76. (d) “No deficiency of form,” &c. It is not to be presumed, from the phraseology here used, that the legislature intended to embolden ignorance or give to indolence any encourage- ment. The ohject was to prevent ‘ prejudice to either party” to the suit. It is expected, and it is the duty of justices of the peace, to take pains and give time to acquire the knowledge necessary to qualify them faithfully and with ability to discharge the various im- portant, high and honorable duties which appertain to the office they have had con- ferred upon them. The justices of peace can do more, by their personal conduct, in the discharge of their relation to society, and by their official deportment, to give a whole- some and an honest character and tone to the public morals than any other class of men in the community. But if they can do good by their example and carriage, so also can they diffuse poison to the moral atmosphere around them. There is much responsibility on their shoulders. : (ce) See 7 W. 48, 180. 4 W. 829. 2 W. 181, 173. 58. & RK. 544. 108. & KR. 121. 128. & R, 292. 8 Wh. 419. 8W.& 8. 342. 4W.& 8, 327. 1H. 60. 2H. 69, 1J. 147. (g) A certificate of the neglect to file an ap- - peal is not necessary to enable the justice to issue an execution; he may do so, at his own risk, if satisfied that the appeal has not been perfected. 1 Phila. R. 517. 100 ACTIONS AT LAW. V. OF THE OERTIORARI. The judges of the courts of common pleas shall, within their respective counties, have the like powers with the judges of the supreme court, to issue writs of cer- tiorari to the justices of the peace, and to cause their proceedings to be brought before them, and the like right and justice to be done.(a) Const. of Penn. Art. 5, 8. : No writ of certiorari issued by or out of the supreme court, to any justice of the peace,(}) in any civil suit or action,(c) shall be available to remove the proceed- ings had before such justice of the peace. Act 20 March 1810, § 24. Purd. 412. In all cases either party shall have the privilege of removing the cause, by a writ of certiorari,(d) from before any justice, whose duty it shall be to certify the whole proceeding had before him, by sending the original precepts, a copy of the judgment, and execution or executions, if any be issued: Provided always, That the proceedings of a justice of the peace shall not be set aside, or reversed, on certiorari, for want of formality(e) in the same, if it shall appear on the face thereof, that the defendant confessed a judgment for any sum within the jurisdic- tion of a justice of the peace, or that a precept issued in the name of the com- monwealth of Pennsylvania, requiring the defendant to appear before the justice, on some day certain,(g) or directing the constable to bring the defendant or defend- ants forthwith before him, agreeably to the provisions and directions contained in this act, and that the said constable, having served the said precept,(h) judgment was rendered, on the day fixed in the precept,(/) or on some other day., to which the cause was postponed by the justice, with the knowledge of the parties; (4) and (a) The certiorari is a writ of error in every- thing but'form. 1R. 221. 38 P.R. 24. 9 Barr 216. And to entitle the party suing it out to a supersedeas, he must give security. 2 Phila. R. 68-9. - (6) This does not apply to the proceedings of two justices under the landlord and tenant act. 88. & BR. 95. 4B. 185. (c) A proceeding under the stray law is within the prohibition of the act. 2B. 20. So is an action before the Mayor of Philadelphia to recover a penalty for a breach of ordinance. 5 RB. 119. ; (d) On the hearing of a certiorari to a jus- tice, every reasonable presumption will be made in favor of his proceedings, consistent with the record. 3 P. L. J. 425. If the pro- ceedings appear on the face of the transcript to be regular, and that he has acted within the sphere of his jurisdiction, parol evidence will not in genera] be admitted. 1 Ash. 51, 64. But the court may, to prevent injustice, make inquiry into the evidence given before the magistrate. 5 B. 29. 1 Y. 49. Pray v. Reynolds, 2 Wh. Dig. 183, pl. 250. To estab- lish corruption or partiality, the refusal to hear testimony, or the fact of deciding on the oath of the plaintiff alone, parol evidgnce is necessarily admissible; and there may be cases in which the absence of jurisdiction can be established in no other way; as where one justice undertakes to re-examine what has already been determined by another: other- wise, the court cannot go out of the record. 1 Ash. 215. But, unless it appear upon the face of the proceedings that the justice pro- ceeded and rendered judgment upon the plain- tiff’s own oath, it must be so distinctly averred by way of ‘exception, and shown by proof. 6 P.L. J. 462, See 2D. 114. 3 Y. 479 10 W. 53. 6 W. & S. 622. 4 Y. 878, 436. 1 Ash, 149, 152, 209, 221. That want of jurisdiction may be shown by parol, is a matter of every day practice, essential to the due administra- tion of justice, to prevent frauds, and main- tain & subordinate tribunal within its proper sphere of action. 3 Pittsburgh Leg. J. 301. 10 W. 123. 3 Y. 479. But the court have no power to direct an issue to try disputed facts arising on a certiorari. 10 W. 58. The court will notice a substantial and fatal error in the proceedings, although the counsel have omit- ted to make it a special exception, when it is deemed essential for the purposes of justice. 2 P. 265. (e) If the party be in prison, or under ar- rest, the court may also issue a habeas corpus at common law, to bring up the body of the defendant, at the same time that the cause is removed by the certiorari; and may, in a pro- per case, admit him to bail to appear at the hearing and abide the event; and the form of the recognisance must be adapted to the exigencies of the case. 8 C. 520, 524. (g) Where the summons did not state any o appearance, judgment was reversed. . 272. " Where the defendant did not appear before the justice, it must appear by the re- cord, that the process was served in the man- ner required by law, otherwise, the judgment will be reversed. 2 P. 282. 1 Phila. R. 252. 6 Pittsburgh Leg. J. 801. See 4 Comst. 296, 879, 883. Unless process be served before the return-day, the proceedings are coram non Judice. 8 Barr 410. ‘ (i) A justice may give judgment before the return-day, if the party voluntarily appear and consent to the hearing. 5 B. 29, (%) ‘With the knowledge of the parties.” This is made by the law a pre-requisite to a valid judgment, a condition essential to protect the judgment on certiorari. A judg- ment given, without strict: regard to this ACTIONS AT LAW. 101 no execution issued by a justice shall be set aside for informality, if it shall appear on the face of the same, that it issued in the name of the commonwealth of Penn- sylvania, after the expiration of the proper period of time, and for the sum for which judgment had been rendered, together with interest thereon, and costs, and a day mentioned (a) on which return is to be made by the constable, and that the cause of action shall have been cognisable before a justice of the peace :(d) and the judgment of the court of common pleas shall be final on all proceedings Tb ¢ as aforesaid, by the said court, and no writ of error shall issue thereon.(c) id. § 22. No judge of any court within this commonwealth, shall allow any writ of cer- tiorart to remove the proceeding had in any trial before a justice of the peace, until the party applying for such writ(d) shall declare on oath or affirmation, before such judge,(e) that it is not for the purpose of delay, but that in the opinion of the party applying for the same, the cause of action was not cognisable before a justice, or that the proceedings proposed to be removed, are to the best of his knowledge unjust and illegal, and if not removed, will oblige the said applicant to pay more money, or to receive less from his opponent than is justly due ;(g) a copy of which affidavit shall be filed in the prothonotary’s office: Provided, That no judgment shall be set aside in pursuance of a writ of certiorari, unless the same is issued within twenty days(h) after judgment was rendered, and served within five days thereafter ;(¢) and no execution shall be set aside in pursuance of the injunction, would, on certiorari, be ‘set aside.” For example—and it is better to,be diffuse than unintelligible—A. sues B., case to be heard 1 May, 8 a. m. ; plaintiff appears, defendant does not. Plaintiff asks and the justice grants an adjournment to 8 May, 4 p. M., at which time the plaintiff appears, the justice hears and examines his ‘proofs and allegations,” and renders judgment against the defendant, who had no knowledge what- ever of the meeting ‘‘at which judgment had been rendered.”’ Such judgment would be erroneous. (a) ‘©A day mentioned.” It was ruled by Judge FRANKLIN, in the court of common pleas for the county of Lancaster, that an execution made returnable ‘‘ within twenty days,” was erroneous, because no. day was mentioned on which the return was to be made. 1 Ash. 55. But the court of common pleas for the city and county of Philadelphia decided that such execution would be valid, and that it was not necessary that a day should be mentioned in the execution on which the return is to he made. Ibid. 53. Out of abundant caution it would be advisable for justices to adhere to the former decision. (d) The court will call in the aid of affi- davits, to ascertain whether the justice has exceeded his jurisdiction. 8 Y. 479. 10 W. 123. 6 Pittsburgh Leg. J. 301. This only applies to a judgment on a certiorari issued under the act of 1810; when a subsequent act confers jurisdiction on justices of the peace, to proceed in a different manner from that directed in act, the judgment of the common pleas on certiorari may be re-exam- ined by the supreme court. 1C. 134. 11 H. 521. It does not apply to proceedings under the landlord and tenant law. 4 B. 185. Or to proceedings to obtain possession by a pur- chaser at sheriff’s sale. 1 R. 317. The proper mode of re-examining such judgment of the common pleas is by writ of error. 1 R. 317. (ec) See2 8. & R. 112. 3 Wh. 12. 1 W. 582. d) Or his agent or attorney; see infra. — e) Or before the prothonotary; see infra. g) The affidavit must substantially follow the words of the act. See 1 Br. 217. 1T. & H. Pr. 680. For form of affidavit, see Gray~ don’s Forms 38. (A) If this provision be not observed, the court will not look into the judgment, even if it do not appear from the record that the summons was served, if within twenty days the defendant had knowledge of the proceed- ings, and applied to have the judgment opened. 1 Ash. 185. If, however, it be apparent on the face of the record that the justice had no jurisdiction, or that the summons was not served in the manner directed by the act of 1810, and the defendant did not appear, the court will reverse the proceedings, on certio- rari, notwithstanding more than twenty days may have elapsed before the issuing of the writ; where there is no legal service of the process on the defendant, he is not in court, and all the subsequent proceedings are erro- neous and void. Offerman v. Downey, 2 Wh. Dig. 184, pl. 278. Tryon v. Keller, Purd. 418, n. 7H. 495. 3 Am. L. R. 248. 8 Pittsburgh Leg. J. 301. But, in such case, the party must satisfy the court that his application was made within twenty days after the fact of the entry of the judgment had come to his knowledge. Campbell v. Penn District, Purd. 418, nm. 1 Ash. 185. 1 Phila. R. 489. The fact that notice was not given may be proved by parol. 7 H. 495. A judgment obtained by any trick or fraud ought to be reversed, if the certiorari be taken within a reasonable time after it is discovered. 7 H. 498. 8 Phila. R. 258. Where the defendant does not appear, it becomes the duty of the justice to see that the return be made strictly according to law, and it should he entered on his docket in the very words of the constable making it. (i) This proviso only applies to civil suits ; and an action for a penalty for a breach of ordinance is not included. 128. & R. 53. 102 ACTIONS AT LAW. writ aforesaid, unless the said writ is issued and served within twenty days after the execution issued. Ibid. § 21. : The prothonotaries of the several courts of common pleas are hereby respectively authorized and empowered to administer the oath or affirmation required by the 21st section of the act to which this is a further supplement, to be taken on the issuing of any writ of certiorari; which oath or affirmation so administered, shall have the same force and effect as if administered by a judge of any of the said courts.(a) Act 3 February 1817,§ 1. Purd. 413. send Whenever an appeal is entered to the supreme court, or a certiorari is sued out to remove the proceedings of a justice or alderman to the common pleas or quarter sessions, the party, his agent or attorney, may make and enter into the required affidavit and recognisance. Act 27 March 1833, § 2. Purd. 411. _ 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 thé corporation, or in his absence, by the cashier, treasurer or secretary.(b) Act 22 March 1817, § 4.. Purd. 410. No special allowance of a writ of certiorari to a justice of the peace, or alder- man, shall be held requisite to the maintenance of such writ. Act 26 April 1855, § 2. P. L. 304. In all cases where the proceedings of a justice of the peace shall be removed by certiorari, at the instance of the plaintiff, and the same be set aside by the court, and on the second trial being had before the same, or any other justice of the peace, if judgment shall not be obtained for a sum equal to, or greater than the original judgment,(c) which was set aside by the court, he shall pay all costs accrued on the second trial before the justice of the peace,-as well as those which accrued at the court before whom the proceedings have been set aside, including any fees, which the defendant may have given any attorney, not exceeding four dollars, in such trial, together with fifty cents per day to the said defendant, while attending on the said court in defence of the proceedings of the said justice of the peace ; and in cases where the proceedings of any justice of the peace shall be removed at the instanee of the defendant, and be set aside by the court, and it shall appear that he attended the trial before the justice, or had legal notice to attend the same, and on a final trial being had as aforesaid, the plaintiff shall obtain judgment for a sum equal to or greater than the original judgment, which was set aside by the court, he shall pay all costs accrued on the second trial before the justice of the ., peace, as well as those which accrued at the court before whom the proceedings have been set aside, including any fees, which the plaintiff may have given to any attorney, not exceeding four dollars, to defend the proceedings of the justice, together with fifty cents per day while attending at court on the same; which cost shall be recovered before any justice of the peace in the same manner as sums of similar amount are recoverable ;(d@) and in such cases, the legal stay of execution shall be counted from the date of the original judgment rendered by the justice of the peace. And the court shall, at the term to which the proceedings of the jus- tices of the peace are returnable, in pursuance of writs of certéorur?, determine and decide thereon. Act 20 March 1810, § 25. Purd. 413. VI. PRocEEDINGS SUBSEQUENT TO THE JUDGMENT. 1. Of the Stay of Execution. Tn ai. cases where the defendant is a freeholder,(e) or enters [special] bail (a) The prothonotary is also empowered to take the necessary recognisance of bail in error. 2 Phila. R. 68. (5) This provision is not repealed by act 11 June 1882, 33. 2 H. 442. (c) This section does not extend to the reversal of an execution on certiorari. 4 W. 460. (d) A judgment of reversal, on certiorari, does not carry costs. Bartram v. Atkinson, Com. Pleas, Phila, 1858. (e) The defendant must show a freehold not merely worth the amount of the judgment, or more than the incumbrances upon it, but clear of all incumbrances. 6 B. 253. But he need not show title, as in ejectment: possession under color of title is. in general, all that has been required. 1 T. & H. Pr. 297. If the freehold be within the jurisdiction of the court, the defendant need only show its existence and value; it then rests on the plaintiff, if he object, to show an incumbrance; but if the freehold be in another county, the defend- ant must not only show its existence and value, ACTIONS AT LAW. 103 to the action,] (a) and the judgment rendered shall be above five dollars and thirty- three cents, and not exceeding twenty dollars, there shall be a stay of execution (b) for three months ; and where the judgment shall be above twenty dollars and not exceeding sixty dollars, there shall be a stay of six months; and where the judg- ment shall be above sixty dollars and not exceeding one hundred, there shall be a stay of execution for nine months. Act 20 March 1810, § 9. Purd. 601. The bail in all cases where bail is now required for the stay of execution, shall be bail absolute, with one or more sufficient sureties, in double the amount of the debt or damages, interest and costs recovered, conditioned for the payment thereof, in the event that the defendant fail to pay the same at the expiration of: the stay of execution. Act 20 March 1845, § 1. Purd. 601. In all cases where the amount of any judgment rendered before a justice of the peace shall be paid by any person who has entered or shall enter [special] bail for stay of execution or otherwise, such judgment shall remain for the use of such person, and may be prosecuted in the name of the plaintiff for the recovery of the amount. Act 24 April 1829, § 1. Purd. 601. : No defendant shall be entitled to stay of execution upon a judgment obtained against him as bail for stay of execution on any former judgment.(c) Act 25 April 1850, § 28. Purd. 431. 2. Of the Transcript to bind Real Estate. The prothonotaries of the respective counties shall enter on their dockets transcripts of judgments (d) obtained before justices of the peace of their proper counties,(e) but must produce evidence, by the usual cer- tificates of search, of its being clear of incum- brances. Ibid. 2 M. 342. On a plea of free- hold being entered, the plaintiff may move to . dismiss it for insufficiency. 2M. 342. 1 Phila. R. 204. 17. & H. Pr. 586. (a) For condition of recognisance, see infra. Bail for stay of execution may be entered after the expiration of 20 days, if no execu- tion be issued. 2 B. 195. (6) ‘There shall be a stay of execution,” that is, when a plea of freehold or bail for stay of execution shall have been entered. If the defendant neglect or refuse to enter the bail, by law required, it is the right of the plaintiff to demand, and it is the duty of the justice forthwith to issue an execution, and to deliver it to a constable for service. The defendant, by such a proceeding, is:subjected to the costs and inconvenience of immediately putting in bail, or of showing the constable property on which to levy. The issuing of the execution and making a levy on his goods, does not, however, deprive him of the right, within twenty days after judgment, to enter bail. The words of this law, in the 6th section, are too plain to admit of a doubt. They are as fol- lows: ‘(But if the defendant, within twenty days after such judgment, shall enter special bail, and pay the costs accrued on the execu- tion, he shall then be entitled to an appeal, or stay of execution, in the same manner as though the bail had been entered at the time of rendering such judgment.” In1 Ash. 407, the court say, that if the defendant ‘can show that he owns real estate, at any time either before or after execution has issued,” yet if he shall neglect ‘‘to suggest it, it would jus- tify 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 reserved by law.” In all cases, where individuals, such as freeholders, or persons by special agreement, are entitled to privileges, it is their duty to suggest them. If they do not, they should not be surprised if, from their own neglect, they should be put to inconve- nience, and compelled to pay costs. The dis- trict court for the city and county have decided that costs of suit may be added to the amount for which judgment is rendered, in regulating the duration of the stay of execution, under the act of June 16th 1836, the terms of which are very similar, in this respect, to those of the act of 1810. (See Purd. 431.) Thus, where the judgment was but for $495.65, but the costs swelled the amount to more than $500, a stay for twelve months was held to be re- gular. 4P. L. J. 175. (c) A garnishee in an attachment in execu- tion is not entitled to enter bail for stay of execution. 1 Phila. R. 284. And no stay of execution can be claimed in an action of debt on a judgment of another state. 2 Am. L. R. 446. Nor in an action at the suit of the com- monwealth. 18 Leg. Int. 349. (d) Such transcript is, as regards real estate, virtually a judgment of the court. 8S. & R. 479. And may be so recited in a scire facias. 3 P.R. 98. 1 P. BR. 20. 3 W. 881. 2W.& 8S. 170. 4P.L. J. 144, 325. 5P.L. J. 429. The court has no authority to strike off such tran- seript (12S. & R. 72), or to open the judgment and let the defendant into a defence. 7 H. 495. 10 Leg. Int. 46. See 1 P. R. 20. 3 P. R. 98. But it nevertheless remains before the justice for further proceedings. 1B. 381. 12 8S. & R. 72. 7 H. 498. It is not evidence to show a former recovery. 13S. & R. 54. (e) A judgment for damages, in summary proceedings to obtain possession by a pur- chaser at a sheriff’s sale, cannot be certified to the common pleas, under this act, in order 104 ACTIONS AT LAW. without the agency of’ an attorney, [for the fee (a) of fifty cents,] which tran- scripts the justices shall deliver to any person who may apply for the same, and which judgments, from the time of such entries on the prothonotary’s docket, shall bind the real estate of the defendants;(b) but no fieri facias shall be issued by any prothonotary until a certificate (c) shall be first produced to him from the justice before whom the original judgment was entered, stating therein, that an execution had issued to the proper constable as directed by this act, and a return thereon that no goods could be found sufficient to satisfy said demand; and any justice issuing an execution on a judgment removed as aforesaid, shall, on’ the plaintiff producing a receipt for the delivery of such transcript to the prothonotary of the county, to be entered of record, tax [fifty cents] upon such execution for the prothonotary’s fees as aforesaid, And no judgment, whether obtained before a justice, or in any court of record within this commonwealth, shall deprive any person of his or her right as a freeholder (d) longer or for any greater time than such judgment shall remain unsatisfied,(e) any law, usage or custom, to the con- trary notwithstanding. Act 20 March 1810, § 10. Purd. 601. 3. Of the Execution. Every justice of the peace rendering judgment as aforesaid shall receive the amount of the judgment, if offered by the defendant or his agent before execu- tion,(y) and pay the same over to the plaintiff, or his agent, when required: for which service he shall, if exceeding five dollars and thirty-three cents, be allowed [twenty-five cents] by the defendant, in addition to his usual fees,(h) and if the to create alien on real estate. Gault v. McKin- ney, Purd. 1079. \Nor will an action of debt lie on such judgment. 148. & R. 162. See 2 Phila. R. 71, contra. (2) By act 22 February 1821, the fee for this service is fixed at 25 cents; in addition to which he is required by act.6 April 1830, to demand for every transcript filed, a state tax of 25 cents; which, by act 6 May 1844, is to be paid by the plaintiff without recourse to the defendant; and by act 29 March 1827, the prothonotary is given the further fee of 124 cents for entering the case on the judgment docket. (5) It creates no lien, if an appeal be en- tered within the twenty days. 7 W. 540. And when a judgment has been entered on a jus- tice’s transcript, no other judgment can be entered by transcript from the same record. 16 Leg. Int. 284. (c) A certificate is unnecessary if the tran- script show that an execution has been issued and returned ‘‘no goods.” 6 W.& S. 348. A scire facias may issue without certificate. 3 W. 881. And ona judgment on the scire facias, execution may issue from the common pleas, Ibid. (4) ‘His or her right as a freeholder.” In strictness, no one is a freeholder if there be any lien, mortgage or ground-rent, against the property on which he or she claims to be a freeholder. In 2 W. 44, it is ruled by the supreme court, that ‘‘a freeholder is not en- titled to stay of execution unless his land ig free from incumbrance.” It had been pre- viously ruled by the same authority, in 5 B. 432, that to obtain a stay of execution under the act of March 1806, which was an act giving authority to and regulating proceed- ings before justices of the peace, that ‘the defendant must have a freehold in the county where the judgment is entered.” In the above section the legislature declare that ‘no judg- ment shall deprive any person of his or her right as a freeholder longer, or for any greater time, than such judgment shall remain un- satisfied, any law, usage or custom, to the contrary notwithstanding.” From the phrase- »ology of this provision, as well as that of an act passed August 21th 1725 (1 Sm. 164), it would seem as if obstructions had been laid in the way of a freeholder’s exemption from arrest. If a justice shall be satisfied that a defendant has an ample freehold, even though it be lightly incumbered, or-even not situated ‘cin the county,” he need not exact bail. He is to exercise a sound discretion in providing for the payment, at a future day, of the judg- ment he has rendered, and at the same time to respect equally the rights of the defendant, as well as those of the plaintiff. (e) Where the transcript of the judgment of a justice was filed in the common pleas more than nineteen years after the judgment was rendered, and the justice was not called, nor the docket produced, and there was nothing to show whether an execution had ever been issued by the justice, the jury are at liberty to infer payment, from the lapse of time, and these circumstances. 2 J. 812. (g) ‘Before execution.” The justice is commanded to ‘receive the amount of the judgment, if offered by the defendant or his agent before execution, and pay the same over to the plaintiff, or his agent, when required ;” and a neglect or refusal so to do ‘‘shall be a misdemeanor in office.” (h) By the fee-bill of 1814, aldermen and justices of the peace in the cities of Philadel- -phia, Pittsburgh and Allegheny, and the counties of Allegheny, Washington and Lan- caster, are entitled to the following fees for this service, viz.: ‘‘Receiving the amount of judgment before execution, or where an exe- cution has issued, and [special] bail has been afterwards entered within twenty days after ACTIONS AT LAW. 109 said justice shall neglect or refuse to pay over on demand the money so received to the plaintiff or his agent, such neglect or refusal shall be a misdemeanor in office. Act 20 March 1810, § 11. Purd. 602. And if the amount of the judgment is not paid to the justice as aforesaid, he shall grant execution, if required by the plaintiff or his agent, thereupon, if for a sum not exceeding five dollars and thirty-three cents, forthwith,(a) and for any further sum, after the time limited for the stay of the same; which execution shall be directed to the constable (6) of the ward, district or township, where the defend- ‘ant resides, or the next constable most convenient to the defendant,(c) command- ing him to levy the debt or demand, and costs, on the defendant's goods and chat- tels, and by virtue thereof shall, within the space of twenty days next following, expose the same to sale, by public vendue,(d) having given due notice of' the same, by at-least three advertisements,(e) put up at the most public places in his township, ward or district, returning the overplus, if any,(g) to the defendant, [and for want of sufficient distress, to take the body of such defendant into custody, and him or her convey to the common jail of the county; and the sheriff or keeper of such jail is hereby directed to receive the person or persons so taken in execu- tion, and him, her or them safely keep, until the sum recovered and interest thereon accrued from the date of the judgment, together with costs, be fully paid, and in default of such keeping to be liable to answer the damage to the party injured, as is by law provided in case of escapes ;] (/) or, in case no goods and chattels can be found, and the defendant be possessed of lands or tenements, the plaintiff may waive imprisoning the defendant, and proceed by a transcript to the prothonotary afore- said: Provided, That executions against executors or administrators shall only be for the assets of the deceased. Ibid. § 12. No execution shall be issued on a judgment rendered before a justice of the peace or alderman, after five years from the rendition of such judgment, unless the judgment, and paying over the same, if not exceeding ten dollars, 124 cents; if above ten and not exceeding forty dollars, 25 cents; if above forty dollars, 874 cents.” Justices in other parts of the state, by the fee-bill of 1857, shall receive for the same service, where the amount does not exceed ten dollars, .10 cents; if above ten and not exceeding forty dollars, 25 cents; if above forty dollars, 50 cents. : (a) ‘He shall grant execution—forthwith.” It is the plaintiff or his agent who has the right to demand, and the justice to issue execution, if the time for its issue has legally arrived. The justice has no right to issue it without being required, nor has he any right to delay or refuse it, when legally required. If he do, it is on his own responsibility. (5) “Which execution shall be directed to the constable.” The direction given to the justice, as well as to the officer to whom the execution ‘‘ shall be directed,” is given with too much exactitude and precision to leave any doubt upon the mind of the justice as to the person to whom he is bound/to deliver the process tz be served. No express autho- rity is givea here, or elsewhere, to the con- stable to depute any person to serve an exe- cution ; and if he were so to deputize another, he, the constable, would be “liable to answer the damages to the party injured,” if the injury had been caused by the neglect or mis- conduct of the person whom he had depu- tized. (c) It is the universal practice for justices to issue their executions to any constable within the county; and the sureties of such constable are responsible for their due execu- tion. 78. & R. 8538-4. The justice is to judge who is the constable most convenient to the defendant. 138. & R. 336. But a sale by a constable of one township, under an execution directed to a constable of another township, passes no title to the property; he is a mere trespasser. 3 Barr 349, (d) A sale to the plaintiff, no person but the constable being present, is illegal and void. 3 H. 90. (e) If he sell any portion of the goods without levy or advertisement, he is liable. 1 Barr 288. . (g) ‘Returning the overplus, if any.” The constable who shall neglect or refuse to per- form this duty, would subject himself, not only to much public odium, but he might also expect to be visited with no little severity by any court or jury before whom he might be brought by the defendant. The safest way for the constable, in all such cases, is to pay ‘the overplus” to the justice, who is, by a further supplement to this act, passed 28th March 1820, bound to receive it and to pay it over to the defendant, ‘‘ without any fee fcr making such payment.” (A) Since the act to abolish imprisonment for debt, no execution can issue against the body, in cases of contract. In an action for a penalty, which is directed to be re- covered ‘‘as debts of like amount are by law recoverable,” the defendant is not liable to arrest; an execution, in such case, autho- rizing the imprisonment of the person is void, and the defendant may be discharged on habeas corpus. Martin’s Case, Com. Pleas, Phila. 15 April 1854. MS. s.p.1D. 135. 4 Y. 287, 240. 106 ACTIONS AT LAW. same shall have been revived by scire facias or amicabl: confession.(a) Act 5 May 1854, § 1. Purd. 601. . No execution issued on any judgment rendered by any alderman or justice of the peace, upon any demand arising upon contract, express or implied, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of the alderman or justice of the peace, either that such judgment was for the recovery of money collected by any public officer, or for official misconduct. Act 12 July 1842, § 23. Purd. 602. On the issuing of any execution under the provisions of the act to which this is a supplement, or of any of the supplements thereto, it shall and may be lawful for the justice or alderman issuing the same to indorse thereon for collection the fees for the return of said execution, as well as for issuing the same. Act 24 April 1829, § 2. Purd. 602 4, Liability of the Constable. On the delivery of an execution to any constable, an account shall be stated in the docket (b) of the justice, and also on the back of the execution, of the debt, interest and costs; from which the said constable shall not be discharged,(c) but by producing to the justice, on or before the return day(d) of the execution, the receipt of the plaintiff or such other return as may be sufficient(e) in law; and in case of a false return, or in case he does not produce the plaintiff’s receipt, on the return day, or make such other return as may be deemed sufficient by the justice, he shall issue a summons(g) directed for service to a constable, or to some other (a) The power of issuing a scire facias is appurtenant to that of issuing executions, and included in it. 6 B. 58. An execution issued more than five years from the rendition of the judgment, without a scire facias, is irregular. 15 Leg. Int. 284. (5) “An account shall be stated in the docket.” Obedience to this injunction will be found of much value to the justice. He will find it frequently happen, that after the issue, and before ‘the return day of the exe- cution,” while that process is in the hands of the constable, the defendant will call at the office to make payment. The account being “stated in the docket,” the justice will have nothing to do but turn to the case, ascertain the exact amount, and, if required, satisfy the defendant as to the several items of which it is made up. The account may be stated on the margin of the docket in this manner: Debt, . . 1. 1 «ee « « $46.87 Interest, « . 2. 2. 2 ee 2.70 COBESS. is ek ee? tay Be ss 1.58 $50.65 Whenever the account is paid to the justice, let him, before he closes his docket, write at the foot of the case, ‘‘ Money paid into office.” ‘Received satisfaction.” When he pays the plaintiff, or his agent, he should require him to subscribe his name under the above receipt. (c) «‘The constable shall not be discharged.” This section contains much matter of espe cial moment to the constable, Herein he ig given to understand that it is only by doing certain things, therein required and detailed, that he can be discharged from his liability to pay ‘the debt, interest and costs,” on the pack of the execution. He must, ‘on or before the return day of the execution,” act, ‘‘upon complaint being made.” which day should always be indorsed on the exccution, produce to the justice ‘‘ the receipt of the plaintiff, or make such other return as may be sufficient in law.” He may indorse on the execution, ‘‘no goods.” But if the constable shall make ‘‘a false return,” a return unfounded in fact,—for example, if he should return ‘‘no goods,” and the plain- tiff subsequently prove that there were suffi- cient goods on which the constable might have been levied, in such a case, or any ,similar case of neglect or misconduct, the constable and his bail would be liable to the plaintiff for the ‘debt, interest and costs,” on the execution, on which he had made such ‘false return.” (d) The mere omission to return the execu- tion within twenty days will not render the constable liable, if he has sufficient cause for the delay. 6 W. & 8. 534. (e) Of the sufficiency of the return, the justice must judge in the first instance, but his decision is subject to review: and the return must be in writing. 5 W. & S. 457. 8 ae 4 Wh. 56. And see 1 Ash. 160. 1M. (g) ‘He shall issue a summons.” That is, in the language of the second section of this It is not to be expected, nor does the law require the justice to ‘issue a summons,” or any other process, unless called upon for that purpose by the party, his agent or attorney. This construction of the law is warranted by the language used in this section in relation to the duty of the justice, after he shall have entered judgment against the constable, ‘‘on which judgment there shall be no stay of execution.” Yet the justice is so far from being expected to issue execution, that he is, by reasonable implication, instructed not to issue it, except ACTIONS AT LAW. : 107 fit person who shall consent to serve the same, and having so consented, -by accept- ing of such process, shall be bound to execute the same, under a penalty of twenty dollars, to be recovered as other fines are recoverable by this act; but should not a constable or other fit person conveniently be found to serve the process as afore- said, the justice shall direct it to a supervisor of the highways of the township, ward or district where such constable resides, whose duty it shall be to serve the same under the penalty aforesaid; commanding the constable to appear before him on such day as shall be mentioned in the said summons, not exceeding eight days from the date thereof, and then and there show cause why an execution should not issue against him for the amount of the first above-mentioned execution; and if the said constable either neglects to appear on the day mentioned in such sum- mons, or does not show sufficient cause why the execution should not issue against him, then the justice shall enter judgment against such constable for the amount of the first above-mentioned execution, together with costs; on which judgment there shall be no stay of execution, and upon application of the plaintiff or his agent, the said justice shall issue an execution against the constable for the amount of such judgment, which execution may be directed to any constable of the county, or other fit person accepting thereof, or to a supervisor, as aforesaid, whose duty it shall be to execute the same: Provided always, That nothing in this act contained shall in any manner impair or alter the proceeding as heretofore established with regard to insolvent debtors, and their discharge on a full surrender of their pro- perty. Act 20 March 1810, § 12. Purd. 602. Where any constable shall refuse’or neglect to pay over to the defendant or de- fendants, his or their agent or legal representatives, the overplus money which he or his deputy may have made or received upon any execution or executions, then and in such case the party or parties aggrieved may apply to the alderman or jus- tice of the peace who issued the process, who shall thereupon proceed against such constable in the manner prescribed by the 12th section of the act to which this is a supplement, in cases where the constable makes a false return or neglects to return the execution; and if upon such proceedings the justice shall receive the overplus money, or if it shall be voluntarily paid to him at any time by the constable, he shall in either case pay over the same to the defendant or defendants, or his or their agent or legal representatives, without any fee for making such payment. Act 28 March 1820, § 2. Purd. 603. 5. Docket Entries and Transcripts. All which proceedings so had before the justice, shall be entered at large by him in a docket or book to be kept by him for that purpose,(a) in which he shall state the kind of evidence upon which the plaintiff’s demand may be founded, whether upon bond, note, penal or single bill, writing obligatory, book debt, damages on assumption, or whatever it may be; (6) and the whole proceeding in case of appeal, shall be certified to the prothonotary of the proper county. Act 20 March 1810, § 4. Purd. 600. It shall be the duty of the justice, on demand made either by plaintiff or de- fendant, to make out a copy of his proceedings at large, and deliver the said copy duly certified hy him,(c) to the party,requiring the same, and if on such demand ‘upon application of the plaintiff or his agent.” The act of 13 October 1840, allows a constable to appeal from a judgment ren- dered against him under this section. Purd. 184. (a) The docket of a justice of the peace is the best evidence to show the cause of action before him; and parol proof is inadmissible to contradict or vary it. 2W. & 8.377: As jus- tices of peace have not jurisdiction in all cases of contract, it ought to appear, from their docket entry, what is the nature of the con- tract upon which the action is founded. If it does not appear from the record that the jus- tice had jurisdiction, the judgment, on cer- tiorari, will be reversed. 1 Br. 339. (6) The magistrate is not bound to enter on his docket the evidence on which his judgment is founded—it will be presumed that it was on legal proof. 5 B. 31. He need only state the demand and the kind of evidence produced to support the claim, whether upon bond, note, penal or single bill, writing obligatory, book debt, damages on assumption, or what- ever it may be, so as to enable the court to ascertain the grounds of the controversy, and his decision thereon. 1 Br. 209. (c) The docket is no record. 6 W. & 8. 50. But it has the conclusiveness of one. 10 W. 103. And parol evidence is inadmissible to contradict or vary it. 2 W. & 8.377. It can only be proved by a sworn copy. 7 W. 189, 108 he shall refuse so to do, it shall be deemed a misdemeanor in office.(a) Thid.- § 23. ACTIONS AT LAW. 6. Transcripts to other Counties. If the party defendant shall not reside in the county where a judgment is had against him before a justice of the peace, the person in possession of the docket.) in which such judgment may be entered, on application to him made by the plain- tiff or his agent, shall make out, certify and deliver to such applicant a transcript (ce) thereof, and also deliver all evidence in his possession connected therewith for the fee of twenty-five cents,(d) for the recovery of the amount thereof with costs, before any justice of the peace in any county where the defendant may reside or can be found, as in cases originally brought before him ;(e) and the stay of execution shall be counted from the original entry. Ibid. § 17. 7. Satisfaction of Judgments. Any person or persons who shall not within thirty days after written notice to him, her or them given,(g) of the payment of any judgment, together with costs, in his, her or their favor, before any justice of the peace, either by themselves or their agents, enter satisfaction on the docket or execution of the justice, they shall be subject to a penalty of one-fourth of the amount of the debt paid, for the use of the party aggrieved, except where one of the defendants, if there be more than one, shall, by a writing to be filed by him in the office of such justice, within fifteen days after the payment, forbid the plaintiff so to do. Ibid. § 15. The penalty mentioned in the 15th section of the act to which this is a supple- ment, passed on the 20th day of March 1810, for not entering satisfaction in any case in said section provided for, shall be sued for and recovered before any alder- man or justice of the peace of this commonwealth, as debts of similar amount are sued for and recovered. Act 4 April 1831, §1. Purd. 603. : VII. JUSTICES’ DOCKETS. 1. Transfer of Dockets. It shall be the duty of every justice of the peace or alderman, in case of his resignation or removal from office, or removal from his proper district or county, and of his legal representatives, in case of the death or absconding, or voluntary or compulsory absence of a justice of the peace or alderman, from his proper place of abode, to deliver his docket, together with all the notes, bonds and other papers in 192. 1 Phila. R. 25. 8 C. 589. 4 W.& S. to a party in an action pending before him, a 192. 148. &R. 440. 10 Barr 161. 2 H. 418. i certified copy of his proceedings at large, must (a) The indictment should state a previous tender of the legal fee. 108. & R. 873. An averment that the demandant paid to the jus- tice the full amount of money which the jus- tice required is insufficient; nor will proof, upon the trial, that the demandant paid the precise sum fixed by the fee-bill, cure the de- fect. 5 P. L. J. 426. (b) The person in possession of the docket may give such transcript, though not himself a justice, 6 H. 120. c) ‘Deliver to such applicant a tran- script.” The justice to whom a transcript shall be delivered is authorized to proceed on it ‘‘as in cases originally brought before him.” » (d) In the fee-bill of 1857, which is in force throughout the state, with the exception of the cities of Philadelphia, Pittsburgh and Alle- gheny, and the counties of Allegheny, Wash- ington and Lancaster, the fee for this service 1s 20 cents. An indictment against a justice under the 28d section of the act of 1810, for refusing, on demand, to make out and deliver aver a tender or payment of the exact fee to which the justice is entitled for such service, by the provisions of the fee-bill. An aver- ment that the demandant paid to the justice the full amount of money which the justice required, is insufficient; nor will proof, upon the trial, that the demandant paid the precise sutm fixed by ‘the fee-bill, cure the defect. 5 P. L. J. 426. : (e) A justice of the peace of one county may issue an execution upon a certified transcript of a judgment on the docket of a justice of the peace of another county, in all cases where the latter might legally have issued one. 2 W. 424. And in an action to recover the amount of a judgment rendered by a justice of the peace in another county, such certified transcript is primfi facie evidence, upon which the plaintiff may recover. 2 P. R. 465. (g) Such notice is properly served on the plaintiff by leaving a copy thereof with his wife at his dwelling-house. What would be sufficient service of a summons is a good ser- vice of a notice to enter satisfaction. 7 C. 469, ACTIONS AT LAW. 109 his or their possession, concerning any judgment or suit entered thereon, to some neighboring justice or alderman of the district:(a@) Provided, That if any justice © or alderman having resigned or been removed, or the legal representatives of a deceased justice or alderman, shall choose to retain the said docket, he or they shall, on demand, deliver a certified transcript of any judgment or proceedings in any suit therein, on oath or affirmation, to the party or parties interested, under the penalty of-one hundred dollars, to be recovered by the party aggrieved in the same manner as debts of that amount are by law recoverable ; and the justice of the peace or alderman to whom said docket or transcript shall be delivered, shall issue process and proceed thereon(d) in the same manner and with like effect as the original justice or alderman might have done: Provided, That in case the justice or alder- man to whom such docket may be delivered, shall be a party to or interested in any suit or judgment therein, such suit or judgment shall be proceeded in by some other justice of the peace or alderman of the proper county, to whom a transcript shall be furnished, as well as the original docket, if required on the trial: And pro- vided further, That in case any justice of the peace or alderman shall abscond, or depart from the district without delivering his docket and papers to some justice of the peace or alderman as aforesaid, it shall be the duty of the person in whose pos- (a) Any justice has jurisdiction under this act, upon the delivery of a transcript to him, to recover the amount of a judgment rendered by another justice who has resigned his office but retains his docket ; and he ma: proceed by summons. 1 W. & 8.414. The same jurisdiction is given to them by the acts of 21 June 1839 and 27 February 1845; and this is not taken away by the act 21 April 1846. The case reported in 2 P. 297, to the contrary, is not law. 2 Phila. R. 42. 6 H. 120. But an execution issued by one justice on the transcript of another justice of the same county, who was at the time in commis- sion, and acting in his office, is void; not being allowed by any act of assembly. 4 Barr 339. (4) ‘¢Shall issue process and proceed there- on.” The language of the law is so clear and distinct in its directions to the justice when the ‘docket or transcript shall be delivered” to him, that explanations may appear wholly unnecessary. As, however, that which is plain and simple to the eye of the experienced, may appear confused to those who have not before seen or examined it, it is thought ad- visable to use more words than may appear called for, rather than to leave enactments subject to be misunderstood. It must not be forgotten that a large number of magistrates enter upon the discharge of their momentous duties without their minds being familiar with legal proceedings, or even the language of the law. A little assistance to such persons is often as useful as an index or fingerboard to a weary and uncertain traveller. Those who have knowledge, those who are already acquainted with the road, do not consult such guides; but all are not informed, and those who are must bear with us who endeavor to guide those who are willing to put themselves upon us for instruction. __ A magistrate who shall receive a ‘docket or transcript” from another, should read it with attention, regarding it as a record of his own proceedings. When application is made to him to proceed, he should determine what it would be his duty to do if the case had been so far heard by himself. If the suit t had proceeded no further than the issuing of a summons, inasmuch as the defendant would by that summons have been required to ap- pear before another justice than the one before whom the case is now to be heard, if the defendant did not appear at the time ap- pointed and the plaintiff did, it would be proper to send w notice to the defendant, or issue a summons in the usual form, and con- sider what was thus done as the first step taken in the institution of the suit. If there had been a hearing and the case stood ad- journed, notice to the parties should be given by the justice, if they did not appear at the time to which the case stood adjourned, before he proceeded any further in the suit. If judgment had been entered, the justice before whom the case now lay should apprise the defendant, so that he might have an op- portunity, if so disposed, to plead his free- hold, or put in special bail, if entitled to a stay of execution, before the execution should be delivered to a constable. It is always better that the justice should take even unne- cessary trouble, rather than hazard serious inconvenience to the parties or either of them. If bail should have been entered and the stay of execution is unexpired, nothing is to be done by the justice until it shall expire, and he is called upon by the defendant to pay the money, or by the plaintiff for an exe- cution. In any of which cases, the justice should proceed as if the suit had originally been instituted, and all the proceedings already had, had been had before him. In the clear and emphatic language of the law, ‘the justice to whom the docket or transcript shall be delivered shall issue process, and proceed thereon, in the same manner and with the like effect, as the justice before whom the proceedings had taken place might have done if he had remained in office.” Other enact- ments on this subject may be found in a further supplement to this act, passed 20 Feb- ruary 18383, particularly in relation to the docket and official papers of any justice who shal) ‘“‘go away without delivering” them, and also in case of ‘‘the temporary ahsence of any justice of the peace from his district.” 110 ACTIONS AT LAW. session the same may be left or found to make a delivery thereof as aforesaid, under the penalty of one hundred dollars, to be recovered by any person aggrieved, in manner aforesaid ; and in case the said docket and papers shall not be left in the particular charge or custody of any person, it shall be the duty of any disinterested justice of the peace or alderman of the neighborhood to take possession thereof, wheresoever found, and the like proceedings shall be had upon the suits and judg- ments contained in the said docket, in these last-mentioned cases, as is hereinbefore provided for when the docket is delivered by the proper justice of the peace or alderman, as before directed. Act 20 February 1833,§1. Purd. 605. In case of the temporary absence of any justice of the peace from his district, it shall be lawful for him, previous to his departure, to deposit his docket,(a) and all papers connected with any judgment rendered by him, with the nearest justice of the peace in the district, who shall-be, and hereby is authorized to issue execution or executions on said judgments, in the same form and effect as if such judgment or judgments had been rendered originally by the said nearest justice. Ibid. § 2. Every justice of the peace or alderman, who is or shall be in commission at the time of the first election under this act, shall, at the expiration of his office, deliver his docket, together with all the notes, bonds, accounts and papers in his possession, touching any judgment or suit entered thereon, to the nearest justice or alderman | of the township, borough or ward: Provided, That if such justice or alderman shall choose to retain his docket,(b) he shall, on demand, for the legal fees, deliver a certified transcript of any judgment or proceeding in any suit therein, to the party or parties interested, under the penalty of one hundred dollars, to be recov- ered by the party aggrieved, in the same manner as debts of that amount are by law recoverable. And the justice of the peace to whom such docket or transcript shall be delivered, shall issue process and proceed thereon in the same manner and with the like effect as the said justice might have done if he had remained in office. [And every justice or alderman elected under this act, shall, on the expiration of his term of office, deliver over his docket and like papers to the person who shall be elected and commissioned to succeed him in said. ward, borough or town- ship.](c) Act 21 June 1839, §10. Purd. 606. It shall be lawful for any alderman or justice of the peace who was in commis- sion at the time of the first election held under the act to which this is a supple- ment, and who shall choose to retain his docket and deliver transcripts under the 10th section of said act, in addition to the fees for said transcript, to demand and receive from the person requiring the same all the fees legally due said alderman or justite in said suit or proceeding, and to retain such transcript until the same is paid.(d@) Act 11 April 1840, § 4. Purd. 606. 2. Proceedings to enforce the Delivery of Justices’ Dockets. 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 therewith, to the nearest justice or alderman in his said district; and if any person shall fail, for twenty days, to comply with the provisions of this section, he shall forfeit and pay one hundred dollars, to be recovered by action of debt, for the use of any person who may sue for the same; and shall further be subject to be compelled to deliver such dockets and records, by a decree and attachment against him, which may be made and issued by any court of common pleas, or by any judge thereof in vacation, on application being made. therefor by any person; and said court or any judge thereof in vacation, shall have power, in the same manner, to enforce a delivery of (a) In case of the temporary absence of a (c) By the act 27 February 1845, the privi- justice of the peace, no other justice can issue leges conferred by this act on justices and execution on a judgment rendered by him, Sidertnen who were then in commission were unless the docket be deposited with such jus- extended to those elected under the act of tice; such execution would be void, and the 1839. Purd. 606. ~ constable acting under it, a trespasser. 2 (d) The like privilege is given to justices Phila. R. 284. elected under the act of 1839, by the act 27 (6) See 2 Phila, R. 42. 6 H. 120. February 1845. Purd. 606. ACTIONS AT LAW. 111 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. Act 21 April 1846,§ 4. Purd. 606. So much of the 10th section of the act of June 21st 1839, entitled “ An act providing for the election of aldermen and justices of the peace,” as provides for the delivery of the dockets and papers of an alderman or justice of the peace, to his successor in office, shall be, and the same is hereby deemed and construed to extend to all cases of succession in office, whether by death, resignation, removal . or otherwise; and in case of the decease of any alderman or justice of the peace, the said delivery shall be made by his legal representative, to the person who is or may be elected, and commissioned to succeed him in said ward, borough or town- ship.(a) Ibid. § 6. 3. Proceedings to supply lost Dockets. 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 fe desirous to have the same supplied, to apply to such alderman or justice b petition, setting forth the proceeding to be supplied, and verified by affidavit ; whereupon the said alderman or justice shall issue a precept in the nature of a writ of summons, which shall be served as in other cases, requiring the defendant in such action or judgment, or his representatives, to appear before such alderman or justice on a day certain, to be named in said writ, not less than five nor more than eight days from the issuing thereof, and show cause why the prayer of the petitioner should not be granted ; and in all cases where the facts set forth in such petition shall be denied, it shall be the duty of such alderman or justice to hear the parties and receive testimony as in other cases, as well his own testimony upon affidavit, as the testimony of others, and upon the hearing thereof, if the said ‘ alderman or justice shall be of the opinion that the facts alleged in such petition are true, or in case such facts be not denied, he shall order that the said proceed- ings be supplied ; and shall thereupon énter the same upon his docket, which said entries shall have the same force and effect as if the original record had not been * lost or destroyed ; and either party may have his remedy by appeal or certiorari, as in other cases. Act 30 April 1850, § 1. Purd. 606. VIII. Ovriine or 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. Afterwards examples will be given of suits in which objections and difficulties of law or fact arise. P leah Thompson holds a promissory note, and the protest thereof. The note is as ‘ollows : “$73 355. 7 Philadelphia, June 12th 1853. Three months after date, I promise to pay to Joseph Parker, or order, seventy-three 527, dollars, without defalcation, for value received. (Signed, ) WM. JACK. (Indorsed, ) “JOSEPH PARKER.” In September 1859, 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 1859, determines to bring suit against the maker, William Jack, who has some property ; Parker, the indorser, being insolvent. : He goes, therefore, to Alderman Ash, of the city of Philadelphia, and informs him he wishes to bring suit against William Jack. |The alderman inquires for the residence of (a) This does not repeal so much of the acts another justice whose term of office has ex- of 1839 and 1845, as authorizes any justices pired. 2 Phila. R. 42. 6 H. 120. Contra, 4 of the peace to proceed on the transcript of P 297. ; 112 ACTIONS AT LAW. Jack, and finds it to be No. 30 North Eighth street, in the city of Philadelphia, where- upon he issues a summons, returnable on the 16th, between the hours of 10 and 11 o’clock, a. M. The form of the summons will be found under the title “‘ Summons.” ‘his summons is put into the hands of G. R., the constable, who having been told the residence of the defendant, calls at his house, and finding him, gives him an exact copy of the original summons. The constable then writes on the back of it these words: “Served personally on the defendant, by profusige to him the original summons, and informing him of the contents thereof, September 10th 1859. G. R., Constable.” 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 return, this 12th day of September 1859. G. W. A., Ald.” The alderman then files the summons. DOCKET ENTRY IN THIS CASE. On ———, 16th September 1859, at 10 o’clock, defendant appears in the alderman’s office, and the plaintiff not appearing, defendant asks for a nonsuit. The alderman informs him that the parties are allowed until the expiration of the last hour named in the summons, to appear, which time has not yet elapsed; but that if plaintiff, or his , attorney, or agent, should not appear at the expiration of the time so allowed, a nonsuit would be entered. At 11 o’clock, plaintiff appears with his witnesses. The plaintiff, Thompson, produces the promissory note, and calls John Carr to prove the signature of Wm. Jack, the maker and defendant. The witness is sworn. Alderman.—Are you acquainted with the handwriting of William Jack? Carr, (the witness.) —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? Defendant, (to witness.)—When and where did you see me write? Witness—I saw you write a receipt, about three years ago, in your own house, for money I paid you. At another time, about a year ago, you came to my store, and wrote an order for several articles of groceries, which you wished me to send to your house. Some months after, you gave me your note for the amount of the groceries, which was paid when it fell due; and I have seen your writing and signature at other times. ‘ Defendant.—Can you swear that that (pointing to the signature on the note on which the suit is brought) is my handwriting? Witness.—I believe that to be your signature. Defendant submits to the 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. * Sees (to plaintiff.)—You must also prove the signature of the indorser, Joseph arker, Plaintiff calls James Hall. Alderman, (to witness.)—Take the book, (handing him a Bible.) Witness.—I affirm. Defendant.—Are you conscientiously scrupulous about taking an oath? JVitness.— 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 hows assent. x Alderman.—Are you acquainted with the handwriting of Joseph Parker? Witness.— es. : Alderman.—How did you become acquainted with it? Witness.—By receiving letters from him, and having a bill of exchange on him, which, after accepting, was paid by him to me. Alderman.—Can you say that from these circumstances you are acquainted with his handwriting? Witness—Yes, I can. Defendant.—I submit that inasmuch as the witness has never seen J oseph Parker write, he is incompetent to prove his signature, Alderman, (to defendant.)—You may cross-examine the witness farther as to how he became acquainted with Parker’s handwriting. Defendant, (to witness.) —Tow do you know that the letters you received from Parker, really came from him? Witness.—I received them in the course of correspondence with im, ACTIONS AT LAW. 118 - Defendant.—How many letters did you receive from him? Witness.—The exact number T cannot tell, but as many as six or seven, I should say. Defendant.—Where are these letters? Witenes of them, I suppose, are lost or mislaid ; others are among my papers at my store. Defendant.—At what time dia 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? Witness.—It was drawn by John Neal, on Parker, in my favor, payable, I think, at ninety days, for something over $300. I enclosed it in a letter to Parker, who then tesided in New York, for his acceptance. He returned it with an answer in a few days, having the acceptance and his signature written on it. Defendant.—Did you ever see Parker write? Witness.—No. Defendant, (to alderman.)—I submit that, never having seen Parker write, the witness is incompetent to prove his handwriting. Alderman.—In order to become acquainted with handwriting, it is not essential to have seen the party write, if the witness has had other sufficient means of knowing it. This witness appears to have had sufficient means of becoming acquainted with the hand- writing of Parker, though he never saw him write. I consider him, therefore, a competent witness. Alderman, (to witness.)—Look at the name on the back of the note, and say if you know whose signature it is. Witness (after examining the name).—I believe that to be the signature of Joseph Parker. Alderman, (to defendant.)—Do you wish to cross-examine the witness farther? Defend- ant.—No. Alderman, (to defendant.)—Have you any witnesses? Defendant.—No. Alderman.—Do you wish to say anything by way of defence? 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 plaintiff.)—Have you a bill of your claim? Plaintigfi—Yes (handing in a bill), of which this is a copy: 1853. Wm. Jack to James Thompson, Dr. Sept. 15. To amount of his promissory note, due this day, and protested for 1859. non-payment, tt bes ett “Sie “gr “ses ake Oi . $73.27 Sept. 16. Interest for six years, say A : 3 F - : i - 25.28 Cost of protest, ae : toy acs AO Ses Ca BE OR 1.38 $99.93 Alderman enters judgment for plaintiff for ninety-nine dollars and 44. Ptaintiff—When can I have execution? Alderman.—Immediately, if you wish; but if an appeal be taken by the defendant, or bail for stay of execution be entered within twenty days from this time, the execution must be stayed. Plaintiff.—I shall wait until the expiration of twenty days, before I ask for an execu- tion. Plaintiff then pays the alderman the costs of suit, and the parties retire. At the expiration of twenty 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 bas been taken, nor any bail entered for stay of execution. He therefore fills up an execution. [For a copy, see the title ‘‘ Execution.’’] The execution is put into the hands of a constable, 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 Thompson, for $101.25, and requests it may be paid. Defendant says he has no money, and cannot pay the amount. The constable then makes a levy on so much of the goods or furniture of defendant as will, in his opinion, produce, at moderate auction prices, fully the amount called for by his execution. The defendant claims the benefit of the $300 exemption law, and having selected such articles as he wishes to retain, they are appraised, and $300 set apart for his use. The constable should he careful not to make an excessive levy, that is, to levy on so great a quantity of goods as is beyond alk reasonable proportion to the amount of the claim. The constable having made his levy, should note on the back of the execution the time when he makes it, and indorse thereon, or on a schedule to be thereto annexed, a list of the articles levied on. In strictness, the constable might at once remove the articles levied on, to be safely kept, in order that they may be sold, but it is customary to leave the goods on the 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 fis execution. ‘ The constable should make out an advertisement in the following form, viz.: 114 ACTIONS AT LAW. CONSTABLE’S SALE. To be sold, at Public Vendue, on Monday the 20th day of October 1859, at 10 o’clock in the forenoon, at the house of John Bob, No. 10 N. Sixth street, ten mahogany chairs, two arm-chairs, a mahogany bureau, and an eight-day clock. Seized and taken in execu- tion, as the property of James Thompson, and to be sold a ‘ Philadelphia, October 13th 1859. AsoN Nay.er, Constable. Three of these advertisements at least, should be put up at the most public places of the district, and the sale should be made within twenty days after the time when the execu- tion came into the constable’s hand. The sale must be by public auction, a private sale would be void, and would be set aside on application. The notice or advertisement of sale should be made at least six days before the sale. The terms of sale should be cash on delivery of the goods. Should the proceeds of sale exceed the amount of the judgment, interest, costs and expenses, the overplus should be promptly handed over by the constable to the defendant. If not, the defendant should apply to the justice, who should order the constable to pay the proceeds into his office, and he will pay over the surplus to defendant. 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 plain- tiff’s receipt. He should then make return to the justice, produce the receipt of the plaintiff, and pay to the justice the fees, if any there be, to which he is entitled. Satisfaction may be entered on the justice’s docket by the plaintiff, thus: Received satisfaction, November 12th 1859. (Signed) James THOMPSON. Or plaintiff may sign a receipt on the docket for the debt, interest and costs, specifying the amount, and the case is determined. A CONTESTED CIVIL CASE BEFORE A JUSTICE OR ALDERMAN. Freprrick Haxg, to the use of Cartes HELFRIcK, vo. Alderman, Joun Jones. James O’ConNELL. September 18th 1859. Summons issued in the above case. Returnable 24th September 1859, between the hours of 3 and 4 o’clock, p. m. Plaintiff appeared, by his attorney, L Defendant appeared, by his attorney, 8. H. Plaintiff's attorney stated that the suit was brought to recover $38, due by defendant to plaintiff, on a contract of guaranty, whereby defendant agreed with plaintiff, Hake, to guaranty the payment to Hake, of the rent of the house No. 79 Queen street, belonging to Hake, and occupied by Patrick Ward; that Ward was in arrear $38, and suit was therefore brought against his surety, the defendant, to recover that amount. Defendant's attorney stated that at this stage it was proper he should interpose certain objections to the regularity of the proceedings. He moved that the writ of summons be quashed, because no legal service of it had heen made four days before the return of it and called the constable as a witness. ; Plaintiff's attorney objects.—The constable has already made his return under oath, and indorsement on the back of the writ, which shows that the service was made on the 18th September, more than four days before the return; this is conclusive:—if the 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 aa but after making the return, I found that the copy I then left was not a true copy as this rorya 1 cone ae pera with a true copy. erman.—That will not do. You had better apply for leave to am Constable.—I do so, according to the facts as I have sated them. eee Alderman.—Which is, that you served the summons on defendant on the 24th Septem- ber 1859, by leaving a true copy thereof at his dwelling-house with one of the family ? Constable.—Yes. Alderman indorses the amendment on the back of the writ, and swears constable to the truth thereof. ‘ Duendonts attorney.—I now move to quash the writ of summons, on the grounds already aid. 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. ACTIONS AT LAW. \ 115 Freperick Haxs, to the use of Cuartes Herrick, Alderman, Joun Jonzs. ». James O’ConNELL. September 24th 1859. Summons issued in the above case. Returnable September 30th 1859, between the hours of 3 and 4 o’clock, rp. u., when plaintiff and défendant 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 30th, defendant, in erson, files « plea in abatement ‘that defendant’s name is James McConnell, and not ames O’Connell, and verifies it on oath.” This plea of misnomer as filed was in the fol- lowing form, viz.: James McConwEtt, sued by the ) name of James O’ConneELL, ats. Before John Jones, Alderman of the 3d ward in the Freperick Hake, to the use of city of Philadelphia. Cuartzs HELrrick. 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 bis own person comes and says that he is named and called by the name of James McConnell, and by the said surname of McConnell hath always hitherto been called and known, without this that he, the said James McConnell, now is, or ever was, named or called or known by the surname of (Connell, as by the writ of summons in the said case is supposed. And this he, the said dames McConnell, is ready to verify. Wherefore he prays judgment of the said writ, aud that the same be quashed. James McConnell, sued by the name of James O’Connell, of the city of Philadelphia, ¥.e defendant in this cause, maketh oath and saith, that the plea hereunto annexed is true in substance and matter of fact. James McConneELu. Sworn and subscribed before me, the 30th September 1859. Joun Jonzs, Alderman. [Nors.—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 doabted whether, in putting in a plea in abatement before a justice, it is necessary for the party to do more than state the subject-matter of his plea to the justice, requesting him to enter the same on his docket, and offering to prove it by witnesses. ] Plaintiff’s attorney asks the alderman to enter a replication to said plea of misnomer, and note the same on his docket, which is done thus: ‘ “Sept. 30th 1859, 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 McConnell. Defendant's attorney calls John Smith, who is sworn by the alderman. Defendant’s attorney.—Do you know the defendant here, and how long have you known him? Witness.—I kiow James McConnell, the defendant, and have known him for ten ears. 2 Defendant's attorney.— By what name is he generally known? Witness.—By the name of James McConnell. Cross-ecamined by plaintiff’s attorney—Do you know by what name he is generally known? Witness.—Yes; I have been well acquainted with him, and those who know. him, for ten years. ; Plaintiff’s attorney—Do you-not know that he is sometimes called James O’Connell, as well as James McConnell? Witness.—No; I never heard him called by any other name than James McConnell. Alderman, (to plaintiff’s attorney.)—Have you any more questions to ask the witness? Plaintiff’s attorney.—No. Alderman.—Have you any witness to examine as to defendant’s name? Plaintiff’s attorney.—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 ealled? Witness——James McConnell; but I have heard him called by the name of James O’Connell. Cross-examined by defendant’s attorney.—How often have you heard him called by the name of O’Connell? Witness.—Once or twice. Defendant's attorney.—Who called him so? , Witness.—Joseph Horn. 116 ACTIONS AT LAW. Defendant’s attorney—What did he say? Witness.—He said that there was a man living at No. 79 Queen street, called O’Connell, or McConnell, who had voted the demo- cratic ticket at the last election. : Bons : Defendant's attorney.—Did he say he was well acquainted with him? Witness.—No. Defendant's attorney.—Who else did you hear call defendant by the name of O’Connell? Witness —I do not remember any one else. ; noe Alderman, (to plaintiff’s attorney.)—Have you any more witnesses on this point? Plaintiff’s attorney.—No. Alderman,—That is not sufficient. . ; Plaintiff’s attorney.—I move to amend the record by altering the name of James O’Con- nell to James McConnell, under the act of 4 May 1852. Alderman.—Have you any evidence of mistake? ; ; Plaintiff’s attorney calls Charles Helfrick, the equitable plaintiff, who, having been sworn, says that he was informed by Frederick Hake that the defendant’s name was James O’Connell, and that he so instructed his attorney. Alderman.—That is enough—the amendment is allowed. The record is amended accordingly. Piaintiff’s attorney states the cause of action as in the first suit; and offers in evidence a deed for the house and lot No. 79 Queen street, dated 24th August 1841, from James Jackson and Maria, his wife, to Frederick Hake, duly acknowledged and recorded. The defendant’s attorney examines the deed, and, making no objection, it is given in evidence. _ Plaintiff’s attorney next offers in evidence a certain aa whereof this is a copy, viz.: For and in consideration of ten dollars, to me in hand paid by Charles Helfrick, before and at the time of the execution hereof, 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 dollars, or thereabout, which I have against James O’Connell or McConnell, on a guaranty, wherein he, the said O’Connell, or McConnell, guarantied the payment to me, by Patrick Ward, of certain rent, but in the payment whereof the said Ward is now in arrear to the amount aforesaid, or thereabout. Witness my hand and seal, this 10th July 1859. (Signed, ) Frev’k Hake. [sEau.] Signed, sealed and delivered, in the presence of us, JaMES JACKSON, Wu. Dopp. Plaintiff’s attorney hands the assignment to defendant’s attorney, who examines it, and asks proof of its execution. . James Jackson affirmed. Plaintif’’s attorney, (handing witness the assignment, and calling his attention to the name James Jackson, thereon.)—Is that your handwriting? Witness.—Yes. Plaintiff’s attorney.—Were you present at the execution of that instrument? Witness. —Yes. I saw Fred. Hake sign his name to it. Plaintiffs attorney.—W ho were present besides Hake and you? Witness.—Wm. Dodd, who witnessed the execution, and Charles Helfrick. Plaintiff’s attorney. What became of the paper after its execution? Witness—Hake gave it to Helfrick. : Cross-examined by defendant’s attorney.—What else took place at the execution? Witness.—I do not recollect anything else. 7 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. ae attorney sae that, if eto Helfrick is ready to release Hake from all liabihty on account of any such implied warranty, and draws up ar ich i ee ie Helfrick and delivered to Take, a eevee Defendant's attorney objects that Hake cannot be thus rendered a competent witness and cites McClelland 2. Mahon, 1 Barr 3643 Patterson o, Reed 7 W ; Cochran p. McTeague, 8 W. & S. 274, , nl: We Reet Cane Alderman.—Hake is not a competent witness. Plaintiff's attorney then offers James Humphreys as a witness, who is sworn. Ls attorney.—State whether you were present at a conversation or agreement, between Hake and McConnell, the detaudat. as to the payment of rent that was to become due by Patrick Ward. Witness—Defendant occupied the house No. 79 Queen street, for a year and a half, when he left it. Before leaving, I called on him in company with Hake, and found that Patrick Ward occupied one of the rooms. Hake inquired whether Ward was not leaving the house at the same time with himself. He said he believed not, that he had let the room to him about 6 weeks ago at $5 per month, and the ACTIONS AT LAW 117 2d month was not yet expired—that he was a good tenant and would pay qunctatly- that he would go his security that he would pay his rent, On this Hake let Ward remain in the room. He stayed there for 12 months and only paid me $22 of rent during that time, and there is $38 now in arrear. I was Hake’s agent to collect the rent. Cross-examined by defendant’s attorney.—Did defendant say anything else on the subject at that, or any other, time? Witness.—Not that I can recollect. Defendant's attorney.—W hat reply did Hake make to McConnell when he said he would go Ward’s security? Witness.—I don’t know that he made any reply. Defendant's attorney.—Did you ever speak to McConnell afterwards on the subject? Witness.—Yes, before bringing suit. I asked him to pay the arrears due by Ward. Defendant's attorney.—W hat reply did he make? Witness. ‘That he would not pay a cent—that he never guarantied the payment of rent. Defendant's attorney —Then I understand you to say, that until after the rent fell into arrear, the amount of which is now claimed, Hake never told or notified defendant that he accepted him as security for Ward. Witness.—No, but we thought that letting Ward remain in the room amounted to the same thing. Alderman, (to plaintiff’s attorney.)—Have you any other witness? any ’s attorney. —No, I consider Humphreys’ testimony sufficient to make out the case for plaintiff. Defendant’s attorney 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. 207; Lee v. Dick, 10 Ibid. 482; Chitty on Cont. 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 plain- tiff; that a bare offer to guaranty without any express assent or notice had been held in several cases sufficient to charge the guarantor. Citing Caton v. Shaw, 2 Har. & Gill 13; Norton v. Eastman, 4 Green]. R. 521; Tuckerman v. French, 7 Ibid. 115; Seaver »v. Bradley, 6 Ibid. 60; Train v. Jones, 11 Verm. 444. Alderman.—tI will deliver my opinion and give judgment in this case on the 8th inst., at 4 o’clock, P. m. October 8th 1859, 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. f 118 4 Acts of Assembly or Statutes, I. Revival of acts in force before the revo- IIL. Construction of statutes. lution. IV. Constitutionality of statutes. IL. Statutes to be strictly pursued. JI. REVIVAL OF ACTS IN FORCE BEFORE THE REVOLUTION. The first legislature, under the commonwealth, enacted by act of 28th January 1777, that each and every one of the laws or acts of general assembly that were in force and binding on the inhabitants of the province on the 14th May 1776, should be in force and binding on the inhabitants of this state, from and after the 10th February 1777, as fully and effectually/to all intents and purposes, as if the said laws, and each of them, had been made or enacted by that general assembly. And also the common law, and such of the statute laws of England, as had here- tofore been in force within the province, except such as were repugnant to or incon- sistent with the constitution of the commonwealth. .Purd. 40. Statutes made in Great Britain before the settlement of Pennsylvania have no force here, unless they are convenient and adapted to the circumstances of this country. And English statutes made since the settlement of Pennsylvania have no force here, unless the colonies are particularly named. The common law of England has always been enforced in Pennsylvania. 1 D. 67. 2 Binn. 581. The first legislature, under the commonwealth, has clearly fixed the. rule respect- ing the extension of British statutes, by enacting that “such of the statutes as have been enforced in the late province of Pennsylvania should remain in force, till altered by the legislature. 1 D. 74. ‘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. British Statutes may be in force in Pennsylvania, by usage. 1 D. 67. Mc- Kean, C. J. The statute of 13 Edw. 1, ¢. 18, [Westminster 2,] has never been in force in Pennsylvania. 1 Wh. 337. The statute of 28 Edw. 3, c. 18, is in force in Pennsylvania. 1 D. 73. Oyer and Terminer, Philadelphia; May 1822. MS. The statute 23 Hen. 6, c. 9, though not reported by the judges, has been con- sidered in force in Pennsylvania. 8 W. 889. SeRGEant, J. z ae pane of limitations, 82 Hen. 8, c. 2, extended to Pennsylvania. 1 D. 15. The statute of guia emptores, 18 Edw. st. 1, c. 1, never was in force in Pennsyl- vania. 1 Wh. 337. The statute of 32 Hen. 8, c. 9, is not in force in Pennsylvania. 1 D. 69. The statute of 43 Hliz. c. 4, relating to charitable uses, has not been extended to this state, but its principles have been adopted by the courts. 17 8. & 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 Ash. 58. ; ate le of frauds and perjuries, 29 Car. 2, c. 8, do not extend to Pennsy]- nla. ed. ‘ ee sent of limitations, 21 Jac. 1, ¢. 16, extended to Pennsylvania. 1 D. 20. . 67. / The statute 8 & 9 W. 3, o. 31, does not extend to Pennsylvania. 2 Binn. 1. There is no trace of the extension of the statute 4 & 5 Anne, oc. 16, to Pennsyle vania by legislative authority or judicial practice. 4 D. 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. 6 8. & R. 151. The statute of 21 Hen. 8, has no relation to the computation of time where a rule or a statute fixes a certain number of days. 4 Barr 517. ACTS OF ASSEMBLY. 119 II. Srarures To BE STRICTLY PURSUED. In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in.such cases, further than shall be necessary for carrying such act or acts into effect. Act 21 March 1806, § 13. Purd. 41. Act 31 March 1860, § 183. Purd. 248. The act was formerly held to extend only to penal actions and indictable offences. 65S. & R. 289. But recent decisions have enlarged the sphere of its operation, and it now applies both to civil and criminal proceedings. 2 M. 63. 1 R. 290. An indictment for nuisance is not within its provisions, although a statutory remedy be provided. 118. & R. 845. Bright. R. 69. Yet, where the erection of a dam in a navigable stream, beyond a certain height, was prohibited by act of assembly, and the erection of the dam itself was not a nuisance, but the excess beyond the limit prescribed by the statute, rendered it illegal, it was held, that the remedy was under the act of assembly, and that the party could not be prosecuted at common law for an entire abatement of the structure. 3 W. 330. 3.P. R. 180. 5 R. 645. 5 Wh. 3857. 3 W. & S. 540. The act only applies where a new, or perhaps specific, method of procedure is directed by statute; for if only a new penalty be attached to a common law offence, then the indictment may still be at common law, though in case of conviction, no other than the statutory punishment can be inflicted. 2 P. 351. 6 B. 179. But an indictment for extortion in taking illegal fees, is not sustainable. 13 8. & R. 426. 1 R.457. Nor against a tax collector for embezzlement. 5 R. 64. Nor can a person be held to surety.of the peace, except in the cases mentioned in the act of assembly. 1 Ash. 46. The performance of worldly employment on Sunday, can only be punished by the infliction of the penalty prescribed by the act of 1794. 18. & R. 347. 9 C. 86. Unless it amount to a breach of the public peace. Bright. R. 44. 1 Phila. R. 460. But if there be an actual disturbance of the public peace, the offender may be bound over to keep the peace and be of good behavior. 7 Am. L. R. 620. 3 Phila. R. 509. A party cannot be indicted for the offence of establishing an unlawful bank; the prosecution must be under the statute to recover the penalty. 2 Ash. 252. And an action of debt is not maintainable on a judgment for damages on summary proceedings to obtain possession by a purchaser at sheriff’s sale. The statutory remedy must be strictly pursued. 14 S. & R. 162. But see 2 Phila. R. 71, contra. III. Construction oF STATUTES. The whole of the civil jurisdiction of the justices of the peace, and the greater part of the proceedings before them, being given and regulated by statute law—acts of assembly —the following observations on the “interpretation and exposition of statutes,” will be - found of essential service to magistrates, in enabling them correctly to ascertain, and thus fully carry out, the intentions of the acts of our legislatures. 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 community; a special or private act relates only to particular persons or to private concerns. The courts of justice are bound ex officio to notice public acts, without their being formally set forth, but not so with regard to private acts, unless formally shown and leaded. ‘ 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 which case the legislature has thought proper, for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Remedial acts are made from time to time, to supply the defects discovered in the common law, whether they arise from the general imperfection of all human laws, from change of time and circumstances, from mistakes and unadvised determinations, or from any other cause. 120 ACTS OF ASSEMBLY. 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 statute 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 artificially penned, so as to comprehend much matter in few words, and so as to leave as little to construction as ossible. . The parts of a statute, in a popular, though not 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. cat The title of a statute is no part of it; it is but a mere usage, and the title is not the law, but the name and description given to it by its makers. The preamble of an act usually contains the motives and inducements to the making of it, but it has been held to be no part of the act. In doubtful cases, recourse may be had to the preamble, in order to discover the ~ inducements of the legislature in making the statute, but where the terms of the enacting clauses are clear and positive, the preamble cannot be resorted to. Public acts are binding upon every citizen ; the judges are bound to take judicial notice of them; every citizen is, in judgment of law, privy to the making of them, and supposed to know them; the passing of an act of assembly is a public proceed- ing in all its stages, and when the act is passed, it is, in contemplation of law, the act of the whole community.(a) 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, which 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 compared 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 expressions. A statute ought, upon the whole, to be construed so that, if it can be prevented, no clause, sentence or word, should be superfluous, void or insignificant. The purview or body of an act may be qualified or restrained by a saving clause in the statute. But a saving clause, where it is directly repugnant to the purview of the act, and cannot a 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 will, in which the latter part, if inconsistent with the former, supersedes and revokes it. There is a known distinction in the law between an exception in the purview of an act, and the proviso. If there 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 a) “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, and 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 only, can faithfully represent those by whom they were elected, ACTS OF ASSEMBLY. 121 the enacting part, it must in the indictment charge that the indictment is not within any of them. The indorsement on an act, by the clerk of the legislature, of the day, month and year when it received the assent of the chief magistrate, is the date of the act, and shall be taken to be part of the act. The qualities and incidents of a statute are: 1, An act of the legislature binds all persons but such as are specially saved by it. 2. A statute which gives corporal punishment, does not bind an infant; contra of other statutes, if they do not except infants. 3. Every statute made against an injury gives a remedy by action, expressly or impliedly. 4. An act of the legislature cannot alter by reason of time, but the common law may, since cessante ratione, cessat et ipsa lea [when the reason of law ceases, the law itself ceases with it]. 5. When the statutes are made, there are some things which are exempted and Soreprized out of the provisions thereof, by the law of reason, though not expressly mentioned ; thus things for necessity’s sake, or to prevent the failure of justice, are excepted out of statutes. 6. Whenever an act gives anything generally and without any special intention declared, or rationally to be inferred, it gives it always subject to the general control and order of the common law. 7. Whenever a statute gives or provides anything, the common law provides all remedies and requisites. 8. In statutes, incidents are always supplied by intendments; in other words, whenever a power is given by a statute, everything. necessary to the making of it effectual is given by implication; for the maxim is, quando lex aliquid concedit, concedere videtur et id per quod devenitur ad ilud [when the law permits any- thing, it seems also to permit that by which the end is obtained}. 9. Quando aliquid prohibetur, et omne per quod devenitur ad illud [when any- thing is forbidden, everything else is also forbidden that induces that end], by which every oppressionary law by color of any usurped authority is forbidden, and all things by all manner of means tending to destruction are prohibited. 10. Whenever the provision of a statute is general, everything which is necessary to make such provision effectual is supplied by the common law. 11. If an offence is made felony by a statute, such statute does by necessary consequence subject the offender to the like attainder and forfeiture, and does 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 misrecital of the day on which the legislature was held, or of the sessions, or of the place of making the statute, or a repugnancy in reciting the day of its making, will be fatal, and so if any material part is omitted or misrecited. Trifling variations, which do not alter the sense of the material parts of a statute, would not be considered fatal. Every statute, for the continuance of which no time is limited, is perpetual, although it is not expressly declared to be so. A temporary statute continues in force (unless it is sooner repealed) until the time for which it is made to expire; a perpetual statute until it is repealed. If an expired statute be afterwards revived by another statute, the law derives its force from the first, which is to be considered as in operation by means of this revival. ; No proceedings can be pursued under a repealed statute, though commenced before the repeal, unless by special exception. A statute cannot be repealed by 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 former statute be declared null and void. 122 ACTS OF ASSEMBLY. By the repeal of a repealing statute, the new law containing nothing in it that manifests the intention of the former act shall continue repealed, the original statute is revived; but if a statute be repealed by several acts, a repeal of one or two, and not of all, does not revive the first statute. If a repealing statute, and part of the original statute, be repealed by a subse- quent act, the residue of the original statute is revived. And if an act of the legislature is revived, all acts explanatory of that act so revived, are revived also. When an act of the legislature is repealed, it must be considered (except as to transactions passed and closed) as if it had never existed. When a statute commands or prohibits a thing of public concern, the person guilty of disobedience to the statute, besides being answerable in an action to the party injured, is likewise liable to be indicted for the disobedience. 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 and such a particular manner, there the parti- cular method prescribed by the act must be specifically pursued, and not the com- mon law method of indictment. The mention of other methods of proceeding impliedly excludes that of indict- ment, as where a statute appoints a particular manner of proceeding against an offender, viz. by commitment, or action of debt, or information, without mentioning an indictment, no indictment lies. The construction of a statute, like the operation of a devise, depends upon the apparent intention of the maker, to be collected either from the particular provision, or the general context. Acts of the legislature ought to be construed according to the intention of the parties that make them. The great object of the rules and maxims of interpretation is to discover the true intention of the law; and whenever that intention can be indubitably ascertained, the courts are bound to give it effect, whatever may be their opinion of its wisdom or feeling. A thing which ¢s within the letter of the statute is not within the statute, unless it is within the intention of the makers. Great regard ought, in construing a statute, to be paid to the construction which the sages of the law put upon it, because they are the best able to judge of the intention of the makers when the law was made. In the exposition of a statute, the leading clue to the construction to be made, is the intention of the legislature, and that may be discovered from different signs. 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 Renetvel restrictive or enlarging of the common law, three things are to be con- sidered : 1. What was the common law before the making of the act? ae was the mischief and defect against which the common law did not rovide ? 7 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 known, and has a certain definite sense at the common law, the word shall bz expounded and received in the same sense in which it is understood at the common law. It is the most natural and genuine exposition of a statute, to examine one part - AOTS OF ASSEMBLY. 12 by another part of the same statute, for that best ‘expresses the meaning of the makers, and such construction is ex visceribus 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 meaning of'one part of a statute frequently lead to the sense of another, and in the construction of one part of a statute every other part ought to be taken into con- sideration. 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 words of a statute must be universal, and not the usage of any particular place. If words of art are used, they are to be taken in their technical sense. Where the object of the legislator is plain and unequivocal, the courts ought to adopt such a construction as will best effectuate the intention of the lawgiver. Where the legislature has used words of a plain and definite import, it would be dangerous to put upon them a construction which would amount to holding that the legislature did not mean what it has expressed. In all cases where the intention of the legislature is brought into question, it is best to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand in the act. The courts are not to presume the intentions of the legislature, but to collect them from the words of the act; and they have nothing to do with the policy of the law. They are not to construe statutes by equity, but to collect the sense of the legisla- ture by a sound interpretation of its language, and according 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 be so construed as most effectually to meet the bene- ficial end in view, and to prevent a failure of the remedy; and as a general rule a remedial statute ought to be construed liberally. A statute for the public good should be construed in such a manner as it may, as far as possible, attain the end proposed. The true intent and meaning of a statute is always to be regarded; and to such purpose only ought the words to be construed. Constructions of statutes are to be made according to the intent of the framers, and not by any strict or strained interpretations. : Penal statutes receive a strict interpretation, The general words of a penal statute shall be restrained for the benefit of him against whom the penalty is inflicted. Penal statutes are taken strictly and literally only in the point of defining and setting down the fact and punishment, and not generally. A penal law shall not be extended by construction. The law of Pennsylvania does not allow of constructive offences or of arbitrary punishments. No man incurs a penalty, unless the act which subjects him to it is clearly within both the spirit and the letter of the statute imposing the penalty. Where a statute creates a penalty, and says one moiety shall be to the use of the state, county, &c., and the other to a common informer, the state, county, &., may sue for the whole, unless a common informer bas commenced a gui tam suit for the enalty. : 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 124 ACTS OF ASSEMBLY. the offence is in its nature several, each offender is separately liable to the enalty. Bhatt which give costs are to be taken strictly as being a kind of penalty. Costs are only due by act of assembly, none being recoverable at common law. Whenever a statute imposes terms, and prescribes a thing to be done within a certain time, the lapse of even a day is fatal, even in the penal statute, because no inferior court can admit of any terms but such as directly and precisely satisfy the law. | Acts of the legislature which take away the trial.by jury, and abridge the liberty of the citizen, ought to receive the strictest construction. It is a settled rule of law, that every charge upon the citizen must be imposed by clear and unambiguous language. Statutes against frauds are a satisfactory exception to the rule that penal statutes are to be taken strictly. Where the meaning of a statute is doubtful, the consequences may be considered in the construction; but where the meaning is plain, no consequences are to be regarded in the interpretation, for this would be assuming a legislative authority. Words are to be taken in a lawful and rightful sense. Where a statute will bear two interpretations, one contrary to plain sense, the other agreeable to it, the latter shall prevail. Any absurd consequences, manifestly contradictory to common reason, are void. Words and phrases, the meaning of which, in a statute, has been ascertained, are, when used in a subsequent statute, to be understood in the same sense. Where an act of the legislature gives authority to one person expressly, all others are excluded, and a special power is ever to be strictly pursued. Where an 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 implication gives them power to issue their precept to convene the parties. ‘ Where a statute appoints a conviction to be on the oath of one witness, this ought not to be by the single oath of the informer. When an act of the legislature empowers justices of the peace to bind a person over, or cause him to do a certain thing, and such person, being in his presence, shall refuse to be bound, or to do such a thing, a power of commitment is implied, and the justice may commit him to the jail, to remain there till he shall comply. Where a statute appoints imprisonment, but limits no time how long, the prisoner, in such a case, must remain at the discretion of the court. Where an act of the legislature gives power to justices of the peace to take order in any matter, according to their discretion, this shall be understood according to the rules of reason, law and justice, and not governed by private opinion. Where the amount of security to be taken is left in the discretion of any court, it will be good to follow the precedents of former times. Where an act directs that the justices shall commit an offender to prison for éwelve months, the justices may not alter the words and commit him fora year; for in this respect twelve months and one year are not the same, but the month must be computed at twenty-eight days to the month, and not as a calendar month, unless it be so expressed in the act. A 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 ability, as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not from impotency or poverty neglect it. IV. ConstiruTioNaLity OF STATUTES. It is a principle in the English law, that an act of parliament, delivered in clear ADULTERATION. 125 and intelligible terms, cannot be questioned, or its authority controlled in any court of justice. 1 Kent’s Com. 446. But this principle in the English government, that the parliament is omnipotent, does not prevail in the United States. In this, as in all other countries where there is a written constitution, designating the powers and duties of the legislature, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution. It must conform in the first place to the constitution of the United States, and then to the subordinate consti- aa its own state, and if it infringes the provisions of either, it is so far void. id. 448. The judicial department is the proper power in the government to determine whether a statute be or be not constitutional. To contend that the courts of 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. Ibid. 449. 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 provi- sion of it, null and void. Ibid. 450. 8 Wheat. 11. A statute, when duly made, takes effect from its date when no time is fixed, and this is now the settled rule. A retroactive statute would partake in its character of the mischiefs of an ex post facto law, as to all cases of crimes and penalties; and in every other case relating to contracts or property, it would be against every sound principle. It would come within the reach of the doctrine, that a statute is not to have a retrospective effect. Ibid. 454-55. The legislature, provided it does not violate the constitutional prohibition, may pass retrospective laws, such as in their operation may affect suits pending and give to a party a remedy, or remove an impediment in the way of. recovering redress by legal proceedings. 4 W. & S. 218. 10 Barr 280. Until the judiciary has fixed the meaning of a doubtful law, upon which rights have become vested, it may be explained by legislative enactment. 4 W. & S. 223. The bill of rights requires that the law relating to a transaction in controversy, at the time when it is complete, shall be an inherent element in the case and shall guide the decision, and that the case shall not be altered in its substaiice, by any subsequent law. 9 0. 495. 7 C. 288. 3 Phila. R. 494. An act is passed only when it has gone through all the forms made necessary by the constitution to give it force and validity as a binding rule of conduct for the citizen; and it cannot impair a contract made after it has passed both houses of the legislature, but before its approval by the governor. 9 C. 202. _ So Adulteration And Sale of Unwholesome Provisions. Act 31 Marcu 1860. Purd. 229. Szcr. 69. If any person shall sell, or expose for sale, the flesh of any diseased animal, or any other unwholesome flesh, knowing the same to be diseased or unwhole- some, or sell or expose for sale unwholesome bread, drink or liquor, knowing the same to be unwholesome; or shall adulterate for the purpose of sale, or sell any flour, meal or other article of food, any wine, beer, spirits of any kind, or other liquor intended for drinking, knowing the same to be adulterated; or shall adulterate for sale, or shall sell, knowing them to be so adulterated, any drugs or medicines ; such person so offending shall be guilty of a misdemeanor, and upon conviction be: sentenced to pay a fine not exceeding one hundred dollars, or undergo an impri- sonment not exceeding six months, or both, or either, at the discretion of the court. 126 : ADULTERY. The sale of unwholesome flesh meat is indictable, although the taint be imper- ceptible to the senses, and the eating of it produced no apparent injury. 19 New York 574. Guilty knowledge that a cow which has a running sore on the head, is unfit for food, may be inferred, without proving that the accused had any scientific skill in determining such questions. Ibid. Act 29 Maron 1860. Purd. 669. Scr. 1. In all actions for the sale of any spirituous, vinous or malt liquors, or any admixtures thereof, it shall be competent for the defendant, in ‘every such case, to prove that said liquors or admixtures thereof were impure, vitiated or adulterated, and proof thereof being made, shall amount to a good and legal defence to the whole of the plaintiff’s demand. Adultery, ‘ fos I. Adultery, the sin of, defined. IV. Warrant for adultery; ” II. Acts of assembly relating to adultery. V. A dommitment for adultery. III. Judicial decisions. YI. A docket entry. fy I. ApuLrTEry 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. The offence of adultery consists in sexual intercourse by a married person with any one not his or her wife or husband ; and therefore a married man may be guilty of adultery by carnal intercourse with a single woman. 9 C. 68. II. Aor 31 Maron 1860. Purd. 223. Scr. 36. If any married man shall have carnal connection with any woman not his lawful wife, or any married woman have carnal connection with any man not her lawful husband, he or she.so offending shall be deemed guilty of adultery, and on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding one year, or both, or either, at the discre- tion of the court. III. An unmarried defendant cannot be convicted of adultery, although the se re should be married. The offence of the defendant is mere fornication. 2 D. 124. The solicitation of another to commit adultery is a high misdemeanor, punishable by indictment. 7 Conn. 267. , The oath of a married woman is not sufficient to sustain a warrant for the arrest of her husband for adultery. 1 Gr. 218. s a fact of adultery may be proved by circumstantial evidence. 2 Greenl. Ev. - In an indictment charging a father with living in adultery with his daughter, _ a that she is so, are admissible in evidence. 6 Penn. L. J. 236. 11 a, 289. In an indictment for adultery, it is sufficient to state that the defendant having a wife, M. A. H., in full life, did commit adultery with one M. M.; without other- mie alleging carnal knowledge, and without averring that M. M. was not his wife. In an indictment for incestuous adultery, it is unnecessary to charge a common knowledge of the relationship, if the charge of knowing the relationship be made against the party indicted. 11 Ala. 289. On a conviction for adultery, the defendant was sentenced to pay a fine and be , imprisoned at hard labor. The sentence being contrary to the act of assembly, the. judgment was reversed. 2 Binn. 79. 8. Pp. 3 Barr 223. ADULTERY. 127 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 pur- poses. 1 Eng. L. & Hq. R. 542. 2 Am. L. R. 695. 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. IV. Warrant FOR ADULTERY. DELAWARE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Delaware, greeting: Waereas, J. L., of H—, in the said county, cordwainer, hath made oath before J. ., one of our Justices of the Peace, in and for the county aforesaid, that S. B., of S—— town- ‘ship, in the said county, yeoman, on the nineteenth day of March last past, at H——, aforesaid (being a married man and having a wife in full life), did commit adultery with a certain R. W., the wife of D. W., of H——, aforesaid, laborer. These are, therefore, to command you forthwith to take the said 8. B., and bring him before the said J. P., to answer unto the said complaint, and further to be dealt with according to law. Witness the said J. P., at H——, aforesaid, the third day of June, in the yeat of our Lord one thousand eight hundred and fifty-nine. J. P., Justice of the Peace. ‘i V. A COMMITMENT FOR ADULTERY. DELAWARE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of H——,, in the County of Delaware, and to the Keeper of the Com- mon Jail of the said County, greeting: . Wuerezas, R. W.., the wife of D. W., of H——, in the said county, laborer, hath been charged, on the oath of J. L., before J. P., one of the Justices of the Peace in and for the said county, with committing adultery with a certain S, B., of S—— township, in the said county, yeoman: These are, therefore, to command you, the said constable, forth- with to convey the said R. W. to the common jail of the said county, and deliver her into the custody of the keeper thereof: and you the said keeper are hereby commanded to receive the said R. W. into your custody, in the said jail, and her there safely keep, until she be thence delivered by due course of law. Witness the said J. P., of H—— afore- said, the tenth day of June, in the year of our Lord éne thousand eight hundred and fifty-nine. C. D., Justice of the Peace. [szat.] VI. Docker ENTRY, IN CASE OF ADULTERY. CoMMONWEALTH June 3d 1859, warrant issued, X. Y., constable, on the oath vs. of J. L., charging the defendant with having, on the 19th of G. B. March last, at H., in the county of H. (he being a married man, and his wife-living), committed adultery, with a certain R. W. costs. June 10th, defendant brought up. J. W., sw.; C. F., sw. : qasticn - « + + + 3] Bail required, $300, to appear next Court of Quarter Sessions, for the county of D. J. L., cordwainer, 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 de- G. L., currier, of T. township, } fendant shall appear at the next Court of Quarter Sessions, for the county of D., &c., &. [ 128 J ADbvUce $ how it should be given. A MacaisTrate is very frequently called upon for information and advice, in matters civil and criminal. He will on such, as on every other occasion, feel the advantages of having his mind stored with legal information, to the end that he may not lead those who rely upon him, into difficulties, by giving erroneous opinions and advice. He should never give advice upon any agreement, &c., which has been reduced to writing, without having the writing itself before hiw. If he has reason- - able doubts, as to his ability to give the advice asked, let him not scruple to say so, and advise the party to go where he can be correctly informed. If the first step taken shall be in the right direction, every future one may be expected to carry the party nearer to the object he desires to attain. But if, from a want of correct advice, he shall set out in a wrong direction, every step will, in all probability, take him further from the object of which he is in pursuit. ; When called upon for advice, the justice considers how great a trust and confidence is reposed in him, and seeks to discharge it with becoming fidelity. Having, as best he can, informed himself fully of the facts, he looks at them in every point of view, not omitting to weigh well the claims of natural justice, and to observe whether he who asks his advice be careful to fulfil its obligations. If he find that natural and _ positive justice unite in giving right to the party who seeks his advice, he acquaints him with the strength of his case—advises (if with prudence it may be done) that it be laid open to his opponent, and restitution be demanded; which if he refuses to, make, then, and not till then, he advises an appeal to the tribunals of justice. If, on the contrary, positive law alone, according to the letter, reluctantly yield to the party an advantage which the law of God peremptorily forbids him to seize, the justice dissuades him from further prosecution of it, in such manner, that either he must bring new matter to show that his case is other than at first it appeared, or must seek another instrument whereby to prosecute his work of injustice. If, upon a consideration of the whole matter, the case appears to the justice to be one of doubt, he states plainly his reasons for so considering it, and recommends, if the claim be small, that it be abandoned, or that, at all events, means of amicably terminating it be first tried. In criminal matters, it is especially becoming in a justice to weigh carefully, and consider well, whatever may be submitted to him for consideration, before he shall venture upon an opinion; always taking care to make drawbacks upon what- ever statements may be made under the influence of strong feelings. In relation to disputes and misunderstandings, among families, or former friends, let every possible means be taken to effect a good understanding; let the cup of conciliation be drained to the dregs, before any hostile measure be advised, or any process whatever be issued. i The justice should carefully guard against giving a decided opinion, upon any matter, or thing, which, it is probable, may come before him for decision. Persons making statements are apt to be biassed by their feelings and interests; in the state- ments which they make, they often, insensibly even to themselves, give to the facts a coloring, which so disguises the real state of the case, that the most penetrating eye can scarcely discern what is true from what is false. By the exercise of patience, and the devotion of some time, the magistrate may be able to get such a view of the subject as shall enable him to give advice which may be essentially useful to the party who has called upon him, and aid him to do justice between the parties, if called upon. If the justice shall be induced to give a decided opinion, on the representation made by the party, and, relying on that spinion, the party shall determine to insti- tute a suit, the justice should decline to issue process, and send the party—if determined to sue—to some other justice. If the justice, who has given the opinion, apon which the suit is about to be instituted, shall yield to the solicitations of the complaining party, and issue process, there is danger that the opinion he has given may bias his judgment, so that he will not be that impartial judge which law and ADVICE. 129 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 misrepresentation, been extorted from the justice. The plaintiff is, in such a case, apt to become angry, because the justice has given judgment against him. He never excuses the justice, and blames himself; nor will he admit, that in his statement he had discolored the facts. The best and only honest course ‘for the justice, who gives a decided. opinion upon a case stated, is to refuse to issue process in relation to it. It is well for every magistrate to avoid, as much as he can, hearing anything about the cause of action or complaint, until the parties meet to submit their “ proofs and allegations.” A magistrate is frequently called upon for advice, in relation to cases, in which he has issued process, and, of course, where it is known that he is the justice who is to give judgment in the case. The party, who thus inquires, is often wholly unacquainted with the manner of doing business in a magistrate’s office. He is altogether at a loss; he does not know what he ought to do, however small the mat- ter 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 accessible to the one party as to the other. He is not the counsel of either party, but appointed as an impartial umpire to decide between them. In him, it is in no wise unbecoming, to give to either party such advice as shall enable them to bring all the facts before him, so that he may give judgment, ‘‘as to right and justice shall belong.” The advice here spoken of is not, in any wise, to trench upon the facts or merits of the case ; but, simply, to give instruction and advice to assist the unin- formed how to do himself justice, and put his case, honestly, before the magistrate. All this may be accomplished without much trouble; and much good will follow from advice thus given with single-heartedness and an honest desire that the truth may be made manifest. How much good may be done, or how much evil averted, by the advice of magis- trates, it is not in the power of any human being to estimate, whatever may have been his opportunities, or how great soever the reach of his understanding. Let, there- fore, every justice of the peace, before he gives advice, feel his own responsibility, not only to the person who applies, but to his country and his God; and the advice, which he gives, will be what it ought to be, and it will bring peace to his own ans and descend; as the gentle dew from heaven, on the heads of his fellow- eings. [ 130 J Affray. I An affray defined. IT. Warrant and return of constable. IJ. An affray, judicial decisions on. IV. Docket entry in case of an affray I. An Arrray is the fighting of two or more persons, in some public place, to the terror of his majesty’s subjects [of the people of the commonwealth]; for, if the fighting be in private, it is no affray, but an assault. 1 Hawk. P. C. ¢. 63. 4 Bl. Com. 145. And there must be a stroke given, or offered, or a weapon drawn, otherwise it is no affray. 3 Inst. 158. II. Affrays may be suppressed by any private person present, who is justifiable in endeavoring 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 affrayer; 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 ma> then, perhaps, also, make them find sureties for the peace. 4 Bl. Com. 145. 1 Cr C. C. 310. A justice of the peace cannot without a warrant authorize the arrest of any per- son for an affray out of his view, yet, it is clear that in such a case he may make his warrant to bring the offender before him in order to compel him to find sureties for the peace. 1 Hawk. P. C. c. 68, § 18. 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 warrant from a magistrate, restrain any of the offenders, in order to preserve the peace. 2 Johns. 486. The revised penal code provides that if any person shall be concerned in an affray, and shall be thereof convicted, he shall be guilty of a misdemeanor, and be sentenced to pay a fine not exceeding five hundred fie or undergo an imprisonment not exceeding two years, or both, or either, at-the discretion of the court. Purd. 220. 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. P. C. ¢. 63, § 22. Bright. R. 46. TI. Warrant FOR AN AFFRAY. DELAWARE COUNTY, ss. The Commonwealth of Pennsylvania, , ‘Lo the Constable of the Township of D——, in the County of Delaware, greeting: Wuerras, J. L., of the township of D——, in the county of Delaware, yeoman, hath this day made oath before J. P., one of our Justices of the Peace, in and for the said county, that on the thirtieth day of September, last past, R. S. and 8. 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. 8. and S. B.: These are, therefore, to command you, forth- with, to apprehend the said R.S. and S. B., and bring them before the said J. P., to answer the said complaint, and to be further dealt with according to law. Witness the said J. P., at D—— township aforesaid, the third day of October, in the year of our Lord one thousand eight hundred and fifty-nine. J. P., Justice of the Peace. [sza.] Return of the Constable.—I have taken the within named 8S. B., whose body I have ready, as within I am commanded ; but the within named R. S. is not found in my baili- wick. X. Y., Constable of D—— township, October 4th 1859. AMENDMENT. 131 IV. DookEt ENTRY ON A CHARGE OF AN AFFRAY. ComMMoNWEALTH October 3d 1859, warrant issued, X. Y., constable, on the vs. oath of J. L., charging the defendant with having been engaged 8. B. in an affray wherein denoneult was beaten. October 4th, defendant brought up; J. L., sw.; C. P., aff.; ; costs. G. L., sw. Bail required from defendant in $200. Gis © 8 S288] J. L., of the township of D., farmer, } Each tent in $100, to Be ae Cc. P., ——_—_—__—_—— .., currier, J testify, &., at the next Court of Quarter Sessions, of the county of D., and not depart the Court without leave, &c. ih 8S. B., of the township of G., farmer, Each tent in $200, T.C.,, of ——, storekeeper, § that the defendant shall 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, &e. Returned to December Sessions. Amendment. AT any time before judgment the proceedings may be amended by the justice, on application, and calling on the opposite party to show cause why the applicant should not have leave leave to amend, Amendments are liberally admitted, where the justice of the case requires them, and no injury is thereby inflicted on the adverse party. 1 T. & H. Pr. 555. The writer, as a justice of the peace, has always allowed the plaintiff to amend his claim, and the defendant his set-off, when, in the progress of a suit, they have thought it proper and for their interest so to do. If, on,a second hearing, the plaintiff or defendant brings an attorney to the office of the justice, and he sees cause to object to the manner or amount of the claim, as made by his client and entered on the docket, the writer has always allowed the attorney to amend the claim, and has made the docket entry to conform to the amended claim. The act of 1806 gives to either of the parties to a suit in a court of record the right to amend, at any time on or before the trial, any informality which will affect the merits of the cause in controversy. And although the provisions of this act are applicable only to actions in courts of record, yet the proceedings of justices of the peace are clearly within its spirit; and the decisions of the courts in reference to it, should guide the justice in allowing or refusing amendments in analogous cases. i Where an amendment is asked for with a view to some unfair advantage, such as throwing on the plaintiff the burden of proving a fact not previously in issue, &ec., it ought to be refused. In strictness, leave to amend ought never to be granted, unless the application be supported by affidavit that it will affect the merits, and is not desired for any other reason. 9 H. 474. An amendment must not introduce a new cause of action. 5 B. 51. 28. & R. 1,358. 6 Ibid. 293. 8 Ibid. 268. 11 Ibid. 98. 1 Wh. 11. 2 R. 337. 12 H. 326. A mistake in the form of action is not amendable, either at common law, or under the statute. 9°C. 409. A party may amend as often as is necessary, the statute having fixed no limits to the number of amendments. 16S. & R. 117. : , All amendments made, either by consent, or by leave of the justice, should appear on the record. 1 Dev. & Bat. 4. The question of making amendments in the names of the parties to a suit has already been treated of, under the title “ Abatement”? V. And to this the reader is referred for the statutes and decisions upon the subject. / r 182°] OL Appeals From Magistrates to the Court of Common Pleas. An essay on the right of appeal, and the manner in which that right may be waived, defeated or enforced. Erruer party to a civil action, if dissatisfied with the judgment of an alderman or justice of the peace against him to an amount exceeding five dollars and thirty- three cents, or on the award of referees to an amount exceeding twenty dollars, has the right to have it reviewed by the court of common pleas of the proper county by APPEAL, a mode by which the facts and merits of the case, as well as the law, may be re-examined by another tribunal.(a) ; : The first point to be determined by the dissatisfied suitor is, whether his case entitles him to an appeal. And here it may be proper to consider from what judg- ments an appeal will lie. An appeal lies from a judgment on a score facias. 3 8. & R. 93. And from a judgment by confession. 10.409. But no appeal lies from a regular judgment of nonsuit. 1 Phila. R. 580. If, however, the justice enter a compulsory nonsuit, which he has no power to do, or dismiss the case in any other irregular manner, the plaintiff may appeal; for such disposition of the case is equivalent to a judgment that he has no cause of action. 2 Barr 89. 5 H. 75. No appeal lies by either party unless the judgment operate directly against -him to a greater amount than the sum to which the right of appeal is limited. 3 Penn. Bl. 218. 3 P. L. J. 386. And accordingly, the court of common pleas of Philadelphia county have decided, that in an action before a justice to recover a penalty, not exceeding five dollars and thirty-three cents, for the breach of a muni- cipal ordinance, no appeal lies: under the seventh section of the act of 15th April 1835, Purd. 593, a judgment for a less amount is final, as in an action on a contract. Northern Liberties v. Powers, MS. If the parties agree that there shall be no appeal, the court will enforce that agreement by dismissing an appeal if made. 2 8. & R. 114. 2 Br. 99. 1 Ash. 92. 8 W. 372. Such agree- ments, however, must be in writing. 7S. & R. 366. The right of the parties to appeal from the judgments of justices, in actions of trespass and trover, under the act of 22d March 1814, is the same as in other cases. 48. & R. 72. If the plaintiff’s demand do not exceed five dollars and thirty-three cents, the judgment of the justice is final as to him, and no appeal lies; and so if the case has been submitted to referees, and the plaintiff’s demand do not exceed twenty dollars, he can have no appeal. 28. & R. 463. 3 P.R.174. 128. & RK. 385. Uf, however, the sum sued for by the plaintiff, and set forth in the docket of the justice, is reduced by the judgment more than five dollars and thirty-three cents (or on an award of referees, more than twenty dollars), an appeal lies for the plaintiff, although the judgment is for a less sum than five dollars and thirty-three cents. 12 8. & R. 888. 83 Barr 454. The amount actually passed upon by the justice regulates the plaintiff’s right of appeal. 1J.410. 48. & R. 72, 12 Ibid. 385. 9 W.17. If the justice decide in favor of a set-off claimed by the defendant, exceeding five dollars and thirty-three cents, the plaintiff can appeal, without regard to the amount of his demand. ; The defendant’s right of appeal depends on the amount adjudicated against him. It is the sum in controversy and not the amount of the judgment, that regulates the right of appeal, 2 W. 304; and therefore if the defendant demand or offer to set off a sum, exceeding five dollars and thirty-three cents, and the decision of the justice be against the defendant on the set-off, he is entitled to an appeal, 3 P. R. 120; 2 W. 304; but it must be a bond fide claim to set-off. 6 H. 78-9. By the third section of the act of March 20th 1845, Purd. 599, “the right of appeal from judgments of aldermen and justices of the peace, and from their judgments on (a) A defendant, who isa mere stakeholder, to indemnify him against. costs being given or is not bound to appeal from the judgment of tendered to him within the time allowed for 8 justice, but must allow a party interested to an appeal. 6 P. L. J. 289. use his name for that purpose, upon security APPEALS. 133 awards of referees, is extended to defendants in all cases wherein, by existing laws, the right of appeal is enjoyed by plaintiffs.” Under this act, if the plaintiff be entitled ‘to an appeal in consequence of his demand being reduced more than five dollars and thirty-three cents, the defendant has the same privilege, although the judgment actually rendered be for less than five dollars. 1 J. 410. This act gives to the defendant an appeal where the plaintiff may have one, but it does not extend the plaintiff’s right; and consequently, where previously the plaintiff had no right of appeal, this act does not confer such right on the defendant. Thus, where the plaintiff’s claim before the justice was for twenty-five dollars, and referees awarded him eleven dollars, it was held that the defendant had no right of appeal under this act. 1 C. 340. The right to an appeal having been ascertained, the appellant, or person dissatisfied with the judgment, must take with him, or send to the magistrate, a competent per- son to serve as bail, and claim his appeal. This must be done within twenty days from the day on which the judgment, was entered. In computing the twenty days, the day of judgment is to be excluded. 3 8. & R. 496. 3 Phila. R. 425. 5 C. 525.(a) And if the twentieth day fall on Sunday, the appeal may be entered on the next day. 3 P. R. 201. 4 Barr 515. : Where an appeal does not lie, no waiver will give jurisdiction; but where an appeal does lie, the party may, by treating it as regularly in court, waive a defect » that would otherwise be fatal. 48. & R. 190. 5H. 89. 1 Ash. 168. Therefore, where a defendant appealed from a judgment against him, for five dollars, the court dismissed the appeal, although more than two years had elapsed, and the plaintiff had filed a declaration and entered a rule to plead. Northern Liberties v. Crocks, Com. Pleas, Phila., Dec. T, 1848. MS. And see 3 Am. L. J. 361. 8 H. 469. If the justice, by mistake, refuses an appeal,(b) it may be subsequently entered, after the twenty days. 16 S. & R. 421. 2 Ash. 224. But it is too late to enter an appeal after the money is made on an execution, although within the twenty days. The entry of a rule to show cause why the judgment should not be opened after - the expiration of the twenty days, does not give the right of appeal, on the discharge of the rule. 1 Phila. R. 425. But if such rule be entered within the twenty days, it extends the time for entering an appeal. 2 Ash. 224. 3 Barr 211. And where, after the final hearing of a case before a justice, he postpones his decision without fixing any day, the judgment entered by him afterwards can only be regarded as a judgment from the day notice thereof shall be given to the party against whom judgment is rendered, and he has twenty days after the receipt of such notice to enter his appeal. 4 P. L. J. 105. Where bail was entered on the twentieth day after the judgment, which was excepted to after the twenty days, and new bail was given on the day after the exception, the appeal was held to be good. 1 Ash. 47. If the party be prevented from complying with the requisitions to obtain an appeal, by the conduct or default of the magistrate, the court will permit the appeal to be made a/ter the expiration of the twenty days, and the transcript to be filed after the first day of the term. 1 Ash. 380. If the magistrate erroneously reject an appeal offered within the twenty days, he may, after their expiration, correct his mistake, and the appeal will be good. 168. &R. 421. Butif one of the parties makes the magistrate his agent, and intrusts it to him to enter the appeal for him, he is barred by the magistrate’s neglect, and loses his appeal.(c) 2 W. 72. The first section of the act of 20th March 1845, Purd. 599, regulates the bail which shall be taken: it provides that it “shall be bail absolute in double the probable amount of costs accrued and likely to accrue, with one or more sufficient {% See contra 4 H. 14. 2 Phila. R. 340, Tt is said to be no uncommon thing for jus- b) A magistrate refusing to permit bail to tices to undertake the collection of debts for be entered for an appeal from a judgment rendered by him, denies the appeal itself. 1 M. 210. (c) A magistrate, in no possible case, should act as the agent of either party. How can any man receive such an appointment, such a mark of confidence, without his mind being biassed in favor of the person who bestows it? others, and to bring suits and enter judg- ments, on their own dockets, in favor of the persons by whom they have been appointed agents. The report is mentioned in order to accompany it with the information that the Supreme Court has determined that such con- duct in an alderman or justice of the peace is a misdemeanor in office. 148. & R. 158. 184 APPEALS. sureties, conditioned for the payment of all costs accrued or that may be legally recovered against the appellants.” The act of 15th March 1847, Purd. 600, directs that “when any corporation (municipal corporations excepted,) being sued, shall appeal or take a writ of error, the bail requisite in that case shall be taken absolute for the payment of debt, interest and costs, on the affirmance of the judgment.’ The act of 21st March 1849, Purd. 199, provides “that in all suits or actions hereafter to be brought in any court of record of this commonwealth, against any foreign corpo- ration or body corporate not holding its charter under the laws of this commonwealth, every judgment, verdict and award rendered against such corporations, shall be final and conclusive, unless the said defendants, in addition to the usual proceedings in cases of appeal, shall give good and sufficient bail, in the nature of bail absolute, for the payment of such sum or sums as shall finally he adjudged to be due to the plaintiff or plaintiffs, together with interest and costs thereon.” And by act of 15th April 1851, Purd. 31, this provision is extended to stage companies, and to all joint stock companies not incorporated, when the members of said companies do not reside within the commonwealth. The act of 20th March 1845, does not include municipal corporations. 1 Phila. R. 402. They are entitled to an appeal without the entry of bail. 6 W. & S. 16. So also, executors and administrators, by the fourth section of the act of 1810, Purd. 599, and guardians, by the act >f 27th March 1833, Purd. 599, may appeal without security. But since the passage of the act of 12th July 1842, which supplies the acts which exempted females from imprisonment for debt, it is necessary that a female should give the bail required by the act of 1845 to obtain an appeal. 3 P. L. J. 190. When a party desires to appeal, the magistrate prepares the recognisance briefly on his docket, under the entries of the previous proceedings in the case. It is suffi- cient to state that A. B. is held to the plaintiff in a certain sum, “conditioned that the appellant shall appear at the next court of common pleas and prosecute his appeal with effect, &c.,”’ which recognisance the court will consider as if it had been drawn at length, under the act of March 20th 1845. 7 H. 358. 5 W. 338. Or, it may state that A. B. is held to the appellee in a certain sum, double the probable amount of costs accrued and likely to accrue, “conditioned that the appellant shall pay all costs accrued, or that may be legally recovered against him.” If the recognisance be not drawn by the justice, and returned to the court substantially like the forms above given, the appeal may be dismissed. A penalty and a condition are indispensable to constitute a recognisance; 11 C. 276; hence, where one was taken thus—“ A. B. enters special bail, &c., for stay of execution, &c., according to law,” it was adjudged to be void: the sum could not be supplied by reference to the debt and costs at the date of the recognisance, because it ought to have been large enough to cover future costs; nor for that pur- pose could the court assume that it had been taken in double the amount. 1 J. 293. And the bail is not liable beyond the amount of the penalty. 1 P. R.9. 1 Phila. R. 527. But a recognisance on appeal, where the recognisor was ‘ bound as abso- lute bail in the sum of twenty dollars, or such sum as may be necessary to pay all costs that have. or may accrue in this case, in prosecuting this appeal,” was held sufficient. 2H. 158.(a) After the defendant has had the benefit of his appeal, an objection that the recognisance contained no penalty, will not be allowed to prevail 10 H. 33. Whenever a defect exists in the form of the recognisance, the practice is, to apply to the court for a rule upon the appellant to perfect his appeal within a given time, or show cause why it should not be dismissed. It would be error to quash the appeal in the first instance. 2 P. R. 431. 5 W.& 8.368. An objection to the form of the recognisance will be waived by any step taken to prepare the case for trial. 1 J. 336. When bail is offered, it is the magistrate’s duty to inquire into its sufficiency, either on oath or affirmation, or by other means. If satisfied of the insufficiency of (a) In an action against a constable fora of bail for an appeal. 11. 276. But if the false return, a recognisance in the following docket entries, though slovenly made up, words, ‘‘defendant gives bail which is entered fairly show that an appeal was entered, the on the docket, for the sum of $100, J. W. B., recognisance will be binding. 2 Wr. 500. bail,” cannot be supported as a recognisance es APPEALS, 135 the bail, notwithstanding his oath, he ought to be rejected. If the appellee, or successful party, be dissatisfied with the bail he may except or object to him, and insist on an inquiry into his circumstances, and may bring evidence to rebut his allegations, and to prove (as is often the case) that he is not sufficient bail. New bail may, however, be put in after such successful opposition ; and in a case where the bail was entered on the twentieth day after the judgment, which was excepted to after the twenty days, and new bail was given on the day after the exception, the appeal was sustained. 1 Ash. 47. Until the transcript is actually filed in the office of the prothonotary, the magistrate retains the right to investigate and decide on the sufficiency of the bail. 6 Barr 194. And a defendant cannot defeat the justice’s jurisdiction by filing the transcript, after notice given to him that his bail is excepted to. 1 Ash. 80. Where, however, the common pleas is in possession of a case in the shape of an appeal, although defectively entered, the functions of the justice terminate. Ibid. 168. It is not necessary that the appellant should join with his surety in the recogni- sance. 6 Binn. 52. But the security must be given in a sufficient amount, as required by the act of assembly, 1 8. & R. 491; and it must appear from the record that the security was given according to law. 3S. & R. 98. An appeal by one of two defendants is good as to the one who appeals, although the other comes into court and dissents. 18. & R. 192. If execution has been issued before the entry of bail, the perfecting of an appeal will entitle the appellant to a supersedeas; 1 Ash. 408; which it will be the duty of the justice to issue, on being satisfied that the appeal has been filed in court. But the entry of bail for an appeal, though it may stay the immediate execution of the process, will not avoid all that has been done under it; in order fully to super- sede the execution it is necessary-to perfect the appeal by bringing it into court. Lee v. Farrell, Purd. 596, n. 5 C. 240. It is the province of the justice to deter. mine whether the appeal be regularly taken; and if he allow it, and grant a super- sedeas, the constable cannot refuse to recognise it on the pretence that the justice committed an error; if he persist in proceeding in the execution he is as much a trespasser as if he had no process in his hands;. and a purchaser under such super- seded execution will take no title to the goods sold. 3 C. 199. In Philadelphia, where the defendant is the appellant, it is required by the act of 1st May 1861, that he’ should, in addition to the entry of bail, make oath or affirmation, to be filed of record in the cause, that his appeal is not intended merely for-delay. Purd. 601. Caution is requisite in ascertaining to what term the appeal must be filed or entered. Many appeals have been quashed in consequence of ignorance or inadvertence on this point; and common prudence requires either the employment of counsel at this stage of the case, or the procuring of information from the magistrate on this point. It may be thus explained: There are, for example, four terms in the year, to some one of which the appeal must be entered. The first Monday of the months of March, June and December, and the third Monday of September are, in Philadelphia, the return days of those terms. In calculating the twenty days allowed for an appeal, care must be taken lest one of those return days should intervene. If the bail have been entered previously to such return day, the transcript must be filed on or before such return day, or the appeal will be lost. For, though the law gives twenty days for entering the bail for an appeal, and the appellant may take it on the twentieth day, notwithstanding the beginning of a term hath intervened since the judgment; yet, if the appeal be actually completed on the magistrate’s docket, and ready for return, the appellant is bound by law to file it on or before the first or return day of the next term after the entry of bail, though the twenty days may not have then expired. 3 P. R. 416. If, therefore, the appellant finds that a return day intervenes within the twenty days, his safest course is to delay the entry of bail, and defer the filing of the transcript in the prothonotary’s office until the then next ensuing term, a period of three months. But a defective appeal may be withdrawn, and other bail entered within the twenty days, though a return day has intervened. 2 J. 363.(a) (a) In New York, it has oeen held, that has no power to order it to be allowed as of where the time prescribed by statute forthe the preceding term. 8 Smith 319. allowance of an appeal, has elapsed, the court 136 APPEALS. By the act of 1st May 1861, it has been provided, that appeals by defendants, in Philadelphia, shall be filed on or before the next monthly return day ensuing the entry of the alderman’s judgment. Purd. 601. : The act of 1810 provides that the whole proceeding in case of appeal, shall be certified to the prothonotary of the proper county, who shall enter the same in his docket; and the suit shall from thence take grade with, and be subject to the same rules as other actions where the parties are considered to be in court.” Purd. 600. After the appeal is filed the proceedings in court are de novo, or new, only as to the declaration, pleadings and evidence, all of which are matters not within the scope of this work. The cause of action must, however, continue the same as before the magistrate. 1B. 219. 3B. 45. And nothing can be recovered before the court which could not have been recovered before the justice, except the intermediate interest. 10 8. & R. 227. The form of action may be changed on an appeal, pro- vided the cause of action remain the same. 2 W.14. 1R.370. Where a plaintiff appeals from the decision of a justice, he cannot discontinue the appeal, so as to authorize him to proceed on the original judgment before the magistrate; such dis- continuance is a disclaimer of his right to sue, and an absolute bar to further pro- ceedings in the cause. 3 W. 46. 10: Barr 70. As to the costs on an appeal, they abide the event of the suit, and are paid by the unsuccessful party, ‘as in other eases,” subject to these exceptions. If the plaintiff appeals, he pays all the costs on the appeal, if he recovers no greater sum, or no more favorable judgment in court than had been rendered by the magistrate. 7 W. & S. 818. Ifa defendant recover judgment before the justice for a sum certain, and the plaintiff appeal, and the award of arbitrators in court be “no cause of action,” neither arty is entitled to recover costs. 2 W.&S. 36. And so also, if in such case there fs an award in court in favor of the plaintiff, from which the defendant appeals, and afterwards obtains a general verdict, judgment must be entered for the defendant, with the costs of suit only which accrued before the appeal from the justice. 6 Barr 463. In each of these cases the plaintiff obtaing a more favorable judgment by relieving himself from the payment of the sum adjudged against him by the justice, and is therefore not liable to pay the costs of the appeal; but being unsuccessful in the result of the suit, he is not entitled to recover them. With regard to a defendant, if, either on the trial before the magistrate, or before referees, or before appeal taken, he offers to the plaintiff a judgment for the amount admitted to be due, which offer “it shall be the duty of the justice or of the referees to enter on the record,’’ and the plaintiff rejects the offer; then the plaintiff shall pay all the costs which accrue on the defendant’s appeal, if the plaintiff shall not recover eventually “a greater amount than that for which the defendant offered to give a judgment.” In both cases the defendant’s bill shall be taxed and paid by the plaintiff in the same manner as if a judgment had been rendered in court for the defendant. Purd. 60Q. This proviso has no application where the appeal is taken by the plaintiff. 10 H. 298. To exempt a defendant from the payment of costs, and to entitle him to recover them from the plaintiff, where the plaintiff is the successful party, it is necessary that the defendant should have offered, either at the trial of the cause before the justice, or before the appeal was taken, to give the plaintiff a judgment for a sum equal to, or greater than that which the plaintiff, in the event of his suit, recovered; and it is the duty of the justice to enter such offer on the record. 1 Barr 88. If the justice neglect to enter such offer upon his docket, he may be answerable to the defendant for any loss or injury he may sustain by reason thereof. Ibid. 3 H. 438. His certificate that such offer was made is not sufficient; it must be made a part of the record. 2J.255. The offer to confess judgment, in order to have the effect of exempting the defendant from the costs of an appeal, must be made before the appeal is taken; an offer made afterwards, although before the justice has made out his transcript, is too late. 1 Barr 188. It may be made at any time before the appeal is taken, although the plaintiff is not present; but he should have notice to accept or refuse the amount tendered. 6 W. 494. A tender before the justice of a sum of money eqpal to the amount recovered, is not equivalent to the tender of a judgment, and consequently will not exempt the defendant from the payment of the costs on the appeal. 4 W 289. Neither willa APPRENTICES, 137 tender of a sum equal to that ultimately recovered, together with the costs which have accrued before the justice, avail the defendant; nothing but an offer to give a judgment for the amount will be craig 4 Wh. 78. But to entitle the plaintiff to recover costs, where a judgment has been tendered, he must recover a greater sum than that tendered, with the interest added. 3 Wr. 111. ——_»———— Apprentices. I. Of the contract of apprenticeship. XI. Form of a warrant against a master. If. Of the indenture. XII. Warrant for an apprentice. Til. Of the authority and duties of the XIII. Reeognisance to be taken of the master master. to answer to a complaint made by IV. Of the remedies for misconduct. his apprentice. V. Of absconding apprentices. XIV. Recognisance of an apprentice to give VI. Of the assignment of an indenture, evidence. VIL. Of the binding of poor children. XV. Docket entry in case of master and VIII. Of apprentices generally. ‘apprentice. IX. Complaint of an apprentice. ‘ XVI. Assignment of an apprentice to be X. Notice to the master. written on the back of the indenture. I. OF THE CONTRACT OF APPRENTICESHIP. APPRENTICES are a species of servants, and are usually bound for a term of years, by deed indented, or indentures, to serve their masters, and be maintained and instructed by them. 1 Bl. Com. 426. Apprenticeship is a contract entered into between a person who understands some art, trade or business, called the master, and another person, during his or’ her minority, who is called the apprentice, with the consent of his or her parent or next friend, by which the former undertakes to teach such minor his art, trade or busi- ness, and to fulfil such other covenants as may be agreed upon ; and the latter agrees to serve the master during a definite period of time, in such art, trade or business. The time during which the apprentice is to serve is also called his apprenticeship. 1 Bouv. Inst. 158-9. : But the apprentice is not only a species of servant; he is also species of relation. The law of England, as well as that of Pennsylvania, considers the master as stand- ing in the place of the parent, who, for a certain length of time, has devolved many of his duties upon the master, from whom the law, if called upon, will exact their discharge. It will also exact from the apprentice, in all places, and at all times, during his apprenticeship, that obedience and respect, to his master, which it exacts from a son to a father. The obligations which exist between master and apprentice are various and of great importance, not only to the parties, but to the public. ‘ Apprenticeships,” says Blackstone, “are useful to the commonwealth by the employing of youth, and learning them to be early industrious.” As well, he might have added, as by the instruction given to him while he is an apprentice, so that le shall, when free— that is, when the period for which he shall have been bound apprentice shall have expired—be found not only in habits of industry, but thoroughly instructed, and skilful in executing the various branches of the trade or mystery to learn which he had been bound apprentice. ‘‘Indentures of mppeueesind! says Judge REED, “are personal contracts, authorized by law, in which the conditions and terms are expressed. Any violation of these terms renders the aggressor liable, either to a suit at law or to a summary process provided in our acts of assembly.” 1 Penn. Bl. 207. II. OF THE INDENTURE. The act of 27th March 1713 provides that ‘the justices of the orphans’ courts in the respective counties, shall have full power and authority, at the instance and request of executors, administrators or guardians, to order and direct the binding or putting out of minors, apprentices to trades, husbandry or other employments, as 138 APPRENTICES. shall be thought fit;(a) provided that the said courts shall not have power to bind such minors, apprentices to any person or persons, whose religious persuasion shall be different from what the parents of such minor professed, at the time of their decease, or against the minor’s own mind or inclination, so far as he or she has dis- cretion or capacity to express or signify the same ; or to persons that are not of good repute, so as others of good credit, and of the same persuasion, may or can be found. Purd. 47. The act of 29th September 1770 provides that “all and every person or persons that shall be bound by indenture to serve as an apprentice in any art, mystery, occupation or labor, with the assent of his, or her parent, guardian or next friend, or with the assent of the overseers of the poor, and approbation of any two justices, although such persons, or any of them, were or shall be within the age of twenty- one years, at the time of making their several indentures, shall be bound to serve the time in their respective indentures contained, so as such time or term of years of such apprentice, if a female, do expire at or before the age of eighteen years, and, if a male, at or before the age of twenty-one years, as fully to all intents and pur- poses, as if the same apprentices were of full age at the time of making the said indentures,(b) any law, usage or custom to the contrary notwithstanding.” Purd. 47. A writing without seal is not an indenture of apprenticeship, within the meaning of the act of assembly, even though signed by the parties. 10 8S. & R. 416. The indenture must be executed by the minor, as well as by the master and parent or next friend, and if executed by the minor alone, it is not binding. 4 W. 80. 1 Ash. 123. An indenture by the master and parent but not by the infant, will render the master liable to the apprentice, on the covenants therein, if he have complied with the terms of service on his part. 5 Barr 269. A minor in the service of another, under a parol contract of apprenticeship, has a right to leave such service during his minority, and thereby terminate the relation. 18 Conn. 337. An indenture of apprenticeship made in another state is not obligatory in Pennsylvania. 6 8. & R. 526. Parol evidence of an indenture not produced is not in general admissible. Burr. 8. C. 735. Unless under particular circumstances. Ibid. 151. An indenture to serve merely, but without learning any art, trade, occupation or labor, is not valid, either at common law or under the statute. 2D. 197. 1 Y. 233. The intention of the law is to place the apprentice in a position in which he may make a livelihood; and that while he works to increase the wealth of his master, he shall gather that stock of knowledge which may be useful to him in after life. A minor must therefore be bound to some useful employment, at which he may in after life make his living. 1 Bouv. Inst. 160-1. The terms servant and apprentice are not synonymous. 8 R.307. And the courts have always frowned upon every attempt to bind them out as servants. 1 Ash. 268. 3 Am. L. J.18. But a binding as a waiter is good. 18. & R. 252. And a girl may be bound to learn the art, trade and mystery of a housewife. 1 Br.197. So, a father may bind out his son to serve three years as a sweep. Ibid. 275. A written agreement “to remain with A. B. two years, for the purpose of learning a trade,” is not binding, for want of an engagement in the same instrument, by A. B., to teach. 38 0. & P. 289. An infant under seven years may be bound apprentice under the statute. 5 Wh. 128. A mother, although married to a second husband, is a parent within the meaning of the act, and may as such, independently of her husband, give assent to an inden- ture. 68. & R.340. 1 R. 195. An indenture of apprenticeship is not necessarily invalid, because the father of the child is in full life, and the binding made without his consent; a mother may bind the children of an habitual drunkard, found so by inquest. 1 Ash. 71. But the assent of the mother is not sufficient, where the father is living with her at the time of the binding. 8 W. & 8. 389. If, however, the father, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his children, the mother of such children is authorized by the act of 4th (a) This power is expressly reserved to the nan’, and be bound for its fulfilment. But orphans’ courts by the act of 29th September - 1770, ¢5. 18m. 311. (0) By the common law, after arriving at full age, a man may bind himself apprentice, as he may enter into any other legal cove- a person of full age, binding himself to learn a trade, is not subject to the provisions of the act of assembly giving summary jurisdiction in disputes between master and apprentice 1 Br. 374, 2 Br. 205. 1 Bouv. Inst. 162. APPRENTICES. 139 May 1855 to bind them apprentices, without the interference of her husband, and to exercise all the rights, and to be entitled to claim, and be subject to all the duties reciprocally due between a father and his children ; but if the mother be of unsuit- able character to be so intrusted, the proper court may appoint a guardian to per- form such duties. Purd. 701. : Where the parent of a child lives at a distance, and has long relinquished its protection, a binding by the next friend is good. 18. & R. 366. It is not neces- sary that the person who acts as next friend to the minor, should receive an appoint- ment as such from legal authority. 1 Ash. 27. A sister may act as next friend, though a feme covert, and the binding be to her own husband. 1 R.191. And so may a half-sister. 1 Ash. 27. But a minor sister is incompetent. Bright. R. 189. The person who acts as next friend need not be a relative, but must be some one who knows and acts for the best interest-of the minor, and this may be shown by the terms of the indenture; therefore, an indenture executed by one, as next friend, who had but a casual acquaintance with the minor, did not consult him as to the binding, or make the contract, but executed it at the request of the master, and which contained no provision for schodling, was held invalid. Com. v. Schwartz, Com. Pleas, Phila. 19 August 1848. The master to whom the child was formerly bound, is not a proper next friend within the meaning of the act. 18. & R. 366. Where a stranger, having no authority over the minor, undertakes to bind him as an apprentice, The contract is not valid at common law, as to either of the parties. 5 Pick. 250. The general practice is, for the next friend of a minor to express his assent, by sealing the indenture; but it has never been supposed that he thereby rendered himself liable on the covenants of the indenture. 1 R. 191. 2 R. 269. 7 Barr 21. 1H. 90. A binding to a feme covert is void, although the husband may have given his assent to it; for, not being a party to the indenture, he is not responsible on the covenants. Com. ex rel. Kelley v. Medwinter, Com. Pleas, Phila., per RANDALL, J. 2 Chitty’s R. 284. 1 Bouv. Inst. 159. An indenture executed by one of two part- ners on behalf of the firm, is invalid. 1 Br. 78, app’x. And so is an indenture which does not contain a covenant to give the apprentice a reasonable education. Bright. R. 189. Unless it should appear that the education of the apprentice had beer sufficiently attended to before. 1 R. 191. An indenture of apprenticeship binding a boy for a term of years, during which the master, in lieu of the common covenants for boarding, &c., agreed to pay him a certain sum per week, during at least nine months in each year, was held valid. 2 Barr 402. And where by the terms of an indenture, the master covenanted to pay to the father of the apprentice, a certain weekly sum “towards the support of the said apprentice,” it was held, that the master was bound to make the weekly pay- ments to the father, during the sickness of the apprentice, and whilst he was unable to work for the master. Corfield v. Fitler, Com. Pleas, Phila. 10 Decem ber 1845. The master stands in loco parentis, and is bound by his contract to support the apprentice in sickness. Phila. Q. 8. 13 October 1848. Parsons, J. 1 Str. 99. 1 Bott 574. Chitty on Apprentices 73, 104. 1 Bouv. Inst. 164. 1 Par- sons on Contracts 534. An agreement by an apprentice, indorsed on the indentures, that the wages shall be paid to the mother, cannot be enforced, where there is no correlative obligation on her part for his maintenance. 7 Barr 21. Ill. OF THE AUTHORITY AND DUTIES OF THE MASTER. To enable tht master to compel the apprentice, if necessary, to do his work in a proper manner, and in sufficient quantity, and to perform his other duties, he is, by acts of assembly, by common law, and by the general custom of trade, armed with no inconsiderable authority. The apprentice and his interests are also specially regarded, and in the same way provided for. ' By the indenture the master is vested with the authority, and during the appren- ticeship assumes the responsibility and takes the place of the parent. This view of the relationship between a master and his apprentice is of more importance than persons are in the habit of considering it, and would, if properly regarded, give rise 140 APPRENTICES. to the cultivation of the kindest feelings, and the promotion of the best interests of the parties. : The master should never forget, that besides being bound to teach the apprentice his trade, he has taken upon himself, for a time, the obligations of a father, and the apprentice should always regard him in that character. Such recollections and feelings would be of incalculable value to them both. Magistrates are frequently called upon to give advice to both masters and apprentices. It is a good rule always to require to see the indenture between the parties before any advice shall be given, either to the one or to the other. A master may, by law, correct and chastise his apprentice for neglect, or other misbehavior, so that it be done with moderation. Finch 57. 1 Bl. Com. 1 Bouv. Inst. 165. But he cannot depute another to give such correction. 2 Bache 134. Warren’s Blackstone 361. If death ensue in consequence of such reasonable cor- rection, without fault on the part of the master, it will be no more than accidental death. But if the correction exceeded the bounds of due moderation, either in the measure of it, or in the instrument made use of for that purpose, it will be either murder in the second degree or manslaughter, according to the circumstances of the case. Forster 262. 1 Russ. 670. Thus, where a master struck a child, who was his apprentice, with a great staff, it was ruled to be murder. 1 Hale P.C. 474. And where a master had employed his apprentice to do some work in his absence, and on his return found it had been neglected, and thereupon threatened to send the apprentice to the House of Correction, to which the apprentice replied, ‘‘I may as well work there, as for such a master ;” upon which the master struck the appren- tice on the head with a bar of iron, which he had in his hand, and the apprentice died of the blow; it was held murder: for if a father, master or school-master, correct his child, servant or scholar, it must be with such things as are fit for cor- rection, and not with such instruments as may probably kill them; and a bar of iron is not an instrument of correction. 1 Russ, 671. .The master is not liable for an unjust punishment, arising from an error of judgment; but if he inflicts punish- ment for the purpose of gratifying a cruel and revengeful disposition, and not for the correction and reformation of the apprentice, it is an abuse of his power, and in such case, if he be indicted for an assault and battery, his authority, as master, will be no protection. Lewis’ C. L. 108. It is the duty of the master, at all times, to attend to the deportment of the apprentice and to restrain him from vicious courses ; and if that were otherwise, the authority of the parent or guardian would supervene. 2 Barr 402. A master has no right to require menial services from his apprentice; and if he forcibly compel the apprentice to render such menial services, it will be a sufficient ground for annulling the indenture : he is not, however, liable to indictment for every mistaken exercise of his authority. 8 Am.L. J.17. Neither parent, guardian nor master, have the right to exercise any arbitrary control. over an itfant, as to his religious principles. But if a master, while his apprentice is of tender age, sends him to the church himself and family attend, he “discharges his duty towards his apprentice,” within the meaning of the act of assembly. 4 P. L.J.896. The mas- ter cannot take the apprentice out of the state where the indenture was executed, unless the indenture gives such power, or it follows from the nature of the mystery which the apprentice is to learn. 6 B. 202. 1 Bouv. Inst. 165. Where an apprentice is bound to a master to learn a trade, the master is bound to teach him the whole of that trade in all its branches; and the keeping of an apprentice to a subordinate branch, however such division of labor might expedite and perfect the whole work when completed, is a violation of the master’s covenant, and a sufficient cause for cancelling the indenture. Com. v. Aitken, Com. Pleas, Phila., 22 December 1845, Jonzs, J. Thus, if the master ceases to carry on a part of the trade which he covenanted to teach the apprentice, he by his own act makes it impossible for the minor to serve him after the manner of an apprentice; and he cannot be heard to complain that the apprentice has not done that which he has wilfully made it impossible that he should do. 4 Eng. L. & Eq. R. 412,418. The master, however, is not bound to disclose to the apprentice secrets which are pecu- liar to himself, and which are his exclusive property, unless by his covenant in the APPRENTICES, 141 indenture he has agreed to do so, or such agreement may be presumed from the circumstances. 1 Bouv. Inst. 163. IV. OF THE REMEDIES FOR MISCONDUCT. If any master or mistress shall misuse, abuse or evilly treat, or shall not discharge his or her duty towards his or her apprentice, according to the covenants in the indentures between them made; or if the said apprentice shall abscond or absent him or herself from his or her master’s or mistress’s service without leave, or shall not do and discharge his or her duty to his or her master or mistress, according to his or her covenants aforesaid, the said master, or mistress, or apprentice, being aggrieved in the premises, shall or may apply to any one justice of the peace of any county or city where the said master or mistress shall reside, who, after giving notice to such master, or mistress, or apprentice, if he or she shall refuse or neglect to appear, shall thereupon issue his warrant, for bringing him or her, the said master, mistress or apprentice, before him, and take such order and direction between the said mas- ter or mistress, and apprentice, as the equity and justice of the case shall require; and if the said justice shall not be able to settle and accommodate the difference and dispute between the said master or mistress, and apprentice, through a want of con- formity in the master or mistress, then the said justice shall take a recognisance of the said master or mistress, and bind him or her over to appear and answer the complaint of his or her said apprentice at the next county court of quarter sessions to be held for the said county or city [and mayor’s courts for the cities of Lancaster and Pittsburgh], and take such order with respect to such apprentice as to him shall seem just; and if, through want of conformity in the said apprentice, he shall, if the master, or mistress, or apprentice, request it, take a recognisance of him or her with one sufficient surety, for his or her appearance at the said sessions, and to answer the complaint of his or her said master or mistress, or commit such apprentice, for want of such surety, to the common jail or workhouse of the said county or city respectively; and upon such appearance of the parties, and hearing of their respective proofs and allegations, the said court shall, and they are hereby authorized and em- powered, if they see cause, to discharge the said apprentice of and from his or her apprenticeship, and of and from all and every the articles, covenants and agreements, in his or her said indenture contained, the said indenture of his or her said appren- ticeship, or any law or custom to the contrary notwithstanding ; but if default shall be found in the said apprentice, then the said court is hereby authorized and empowered to cause, if they see sufficient occasion, such punishment by imprison- ment of the body and confinement at hard labor, to be inflicted on him or her, as to them, in their discretion, they shall think his or her offence or offences shall deserve. Act 29 September 1770, § 3. Purd. 48. It is evident from the wording of this section, that on complaint being made, “due notice” must be given by the magistrate, to the party against whom the com- plaint shall have been made. In the notice to be sent by the justice, the complaint made should be stated, that the parties may come prepared; and a time and place should be appointed when and where the parties shall appear. As such inquiries usually make known some of the domestic concerns of the master’s family as well as develop the feelings of those interested, and as the magistrate has the appointment of the édme, it is recommended that it should always be that time when the least possible number of uninterested persons may be expected to be present. The office of the justice is doubtless the proper place of inquiry. If the party notified shall neglect or refuse to appear, at the time and place stated in the notice, and the ser- vice of the a shall be proved to the satisfaction of the magistrate, then, but not till then, he shall “issue his warrant.” Where it is shown that the apprentice has been severely beaten, or ill-treated, and the magistrate binds the master to appear “at the next county court of quarter sessions, to be held for the said county or city,” in which he shall reside; applica- tion is usually made to the justice, that in the mean time—between the binding over aud the meeting of the court—the apprentice shall be delivered over to, and remain with, and in the care of his parents, &c.—not to be returned to his master until the court shall have heard the case and taken order on it. For many, and obvious rea- sons, such applications should be discountenanced and refused, unless the beating 142 APPRENTICES. shall have been inflicted with an unlawful and dangerous weapon, or where from habits of intemperance, or the violence and indulgence of his passion, the master cannot, with safety, be intrusted with the apprentice. ; As a general principle, it is improper to bind an infant in a recognisance, but in this case the act. makes it imperative on the magistrate to include the apprentice in the recognisance with the surety for his appearance. The justice will observe another peculiarity in the provisions of this section of the act of assembly in refer- ence to the recognisance to be taken under it. “The master or mistress” is not required to give any security for his or her appearance at court, except his or her own recognisance. All other means should be tried before the apprentice shall be committed to prison; and when the necessity of the case closes every other door, care should be taken to write on the commitment a request that he shall be kept by himself, and not put in company with any other prisoner. Imprisonment, however, is by all pos- sible means to be avoided. It is, and it should be, regarded as the last resort. It stigmatizes the boy; it sinks him in the opinion of others; and, what is still worse, it sinks him in his own estimation. The only punishment which the court is authorized to inflict, imprisonment of the body, bears, in many cases, as heavily upon the master as upon the apprentice. The innocent is punished nearly as much as the guilty. It is when the indenture is about to expire, that complaints multiply and assume a more serious character. The apprentice has acquired, or thinks he has acquired, a complete knowledge of his trade; his desire to become free becomes more and more ardent, as he calcu- lates, from week to week, how much money he earns, or presumes he earns, for his master; all of which, he thinks, would be his own if the indenture were at an end. These thoughts, unjust and ungenerous as they are, are frequently fostered by others, and beget a restlessness and dissatisfaction, which give birth to com- plaints and inquiries before the courts. The result of such inquiries, however they may affect the interests of the master, fall but lightly on the apprentice. If default shall be found in him, the only punishment by law to be inflicted is “ im- ee by which the master loses all the money which the apprentice would ave earned, during the term of the imprisonment; and the law provides no re- muneration whatever. The court will discharge an apprentice for acts of the master injurious to his mind and morals. 1 Br. 24. In many indentures, provision is made that the master shall pay to the apprentice, his ‘‘ parent, guardian or next friend,” a certain sum of money periodically, for clothing, &c. And it has been repeatedly ruled that the refusal or neglect of the master to make the payments required at the times stipulated, is such a breach of the covenants of the indenture as warrants the dis- charge of the apprentice. . After the acquiescence of the parents for several years in the binding of a child, there must appear to be a palpable violation of the law, to induce the court to annul the indentures. 4 P. L. J. 396. The court will not cancel an indenture, upon the application of the master, on the ground that the apprentice’s health is so bad, that he is unable to work, and consequently, an expensive burden upon the master. The master stands in loco parentis, and is bound by his contract to support the apprentice in sickness.’ Otherwise, if the apprentice join in the application. Phila. Q. 8., 18 October 1848, Parsons, J. 1 Str. 99. 1 Bott 574. Chitty on Appren- tices 78, 104. 1 Bouv. Inst. 164. 1 Parsons on Contracts 534. But if the boy plainly appear to be an idiot, incapable of learning his trade, the court will dis- charge the indenture. Skin. 114. Chitty on Apprentices 105. And the court will discharge the apprentice, if the indentures have been procured by fraad or collusion. 1 R. 191. An appeal does not lie from an order of the court, discharging an apprentice, pursuant to statute. 11 Mass. 24. 1 Bailey 209. ’ V. OF ABSCONDING APPRENTICES. If any apprentice of any of the arts, trades, mysteries, occupations or labor aforesaid, shall depart and abscond from his or her master’s or mistress’s service into any other county of this province, or into the city of Philadelphia, it shall APPRENTICES. 143 and may be lawful to and for any justice of the peace of such county or city, to issue his warrant to any constable within his county or city, to apprehend, take and have the body of such apprentice before him, or some other -justice of his county; and upon such appearance, and hearing of the complaint and defence of the parties, if default be found in the said apprentice, then, and in such case, the said justice of the peace before whom such warrant shall be returned, shall commit him or her to the common jail of the county, where his or her said master or mis- tress shall reside, unless he or she will consent to return home, or shall find suffi- cient surety to appear at the next sessions, to be held for the county where such master or mistress shall reside, and answer the complaint of the said master or See and not to depart the same without leave. Act 29 September 1770, § 8. urd. 49. This section of the act, if construed strictly and to the letter, would appear to give no authority to a justice of the peace “to issue his. warrant” for any abscond- ing apprentice, so long as he continued “in the county or city” where his master or mistress may reside. Time and long practice, however, have given a different construction to the section, and the magistrates in every part of the state, on the oath of the master or mistress that, his or. her apprentice has absconded from their service, issue a warrant for his apprehension, without inquiring whether the appren- tice has or has not ‘gone into any other county or eity.”~ Any other construction than this would give facilities to runaway apprentices, which would be greatly injurious to the public interests as well as to those of the master or mistress, and consequently to those of the apprentice. If any apprentice shall absent himself or herself from the service of his or her master or mistress, before the time of his or her apprenticeship shall be expired, without leave first obtained, every such apprentice, at any time after he or she arrives to the age of twenty-one years, shall be liable to, and the master or mistress, their heirs, executors or administrators, are hereby enabled ‘to sustain all such actions and other remedies against him or her, as if the said apprentice had been of full age at the time of executing his or her indenture of apprenticeship. Act 11 April 1799, § 1. Purd. 49. 1 If any person or persons whatsoever shall harbor, conceal or entertain any such apprentice, knowing him to be such, during’ the space of twenty-four hours, with- out his or her master’s or mistress’s consent, and shall not give notice thereof to his or her said master or mistress, every such person or persons offending in the premises, shall pay to the said master or mistress the sum of twenty shillings, for every day he shall so harbor, conceal or entertain such apprentice, to be recovered in a summary way, as debts under five pounds are by law directed to be recovered, if the same shall not exceed five pounds; if otherwise, to be recovered by action of debt, to be brought at the suit of the party injured, in any court of common pleas within this province. Act 29 September 1770, § 4. Purd. 49. The gist of the offence in this case, is the knowledge of the party who shall “ conceal or entertain” the apprentice of another. It is, therefore, indispensable in the party who shall bring suit to recover damages, to be able to prove that the person who concedled or entertained the runaway apprentice knew him to be such. This act does not intend to make common charity a crime, or treat that man as guilty of an offence against his neighbor, who merely furnishes food, lodging or raiment to the hungry, weary or naked wanderer though he be an apprentice. The °° ° harboring made penal-by this act requires some other ingredient besides a mere kind- ness or charity rendered to the fugitive. The intention or purpose which accompanies the act, must be to encourage him in his desertion of his master, to further his escape, and impede and frustrate his reclamation. The meaning of the words harbor and conceal are not synonymous; there may be a harboring without con- cealment. 7 P.L. J.115. 3 Am. L. J. 168. 1 Am. L. R. 142. 2 Wall. Jr. 311. If the amount claimed shall exceed five pounds, suit must be brought in the com- mon pleas. In an action for enticing away an apprentice, it should seem the apprentice or his father, or party entering into the indenture, would be a competent witness for either party, though sometimes a dangerous one. 1 Saund. Pl. 92. If an apprentice enlist in the army, the court will not, upon a haleas corpus, 144 APPRENTICES. ; issued at the relation of the master, remand the apprentice to his custody, if he be unwilling to return, but will leave the master to his.suit against the officer who enlisted the apprentice. The habeas corpus act is intended to secure personal liberty, not to ‘decide disputes about property. 1 8. & R. 353. 7 P. L. J. 283. 7 T. BR. 745. If an apprentice abscond into another state, he may be sent back to his master under the provisions of the acts of congress, relating to fugitives from labor. 1 Am. L. R. 654. No innkeeper or tavern-keeper shall receive, harbor, entertain or trust any person under the age of twenty-one years, or any apprentice or servant, knowing him to be such; or after being warned to the contrary by the parent, guardian, master or mistress of such minor, apprentice or servant, under penalty, for the first or second offence, of three dollars, over and above the forfeiture of any debt contracted by such‘minor, apprentice or servant, for liquors or entertainments; and for the third offence, under penalty of fifteen dollars, and the forfeiture of his license, and being for ever incapable of receiving a license to keep a public inn within this common- wealth. Act 11 March 1834, § 21. Purd. 49. VI. OF THE ASSIGNMENT OF AN INDENTURE. When any master or mistress shall die before the term of apprenticeship shall be expired, the executors or administrators of such master or mistress, provided the term of the indenture extend to executors and administrators, shall and may have a tight to assign over the remainder of the term of such apprenticeship to such suit- able person, of the same trade or calling, mentioned in the- indenture, as shall be approved of by the court of quarter sessions of the county where the master or mis-, tress lived, and the assignee to have the same right to the service of such apprentice as the master or mistress had at the time of his or her death; and also, when any master or mistress shall assign over his or her apprentice to any person of the same trade or calling mentioned in the indenture, the said assignment shall be legal, pro- vided the terms of the indenture extended to assigns, and provided the apprentice, or his or her parent or parents, or guardian or guardians, shall give his, her or their consent to such assignment before some justice of the peace of the county where the master or mistress shall live. Act 11 April 1799, § 2. Purd. 49. The consent of the parent or guardian, as well as that of the apprentice, is neces- sary to an assignment of an indenture. 18. & R. 248. It must be certified by the justice, or expressed in writing before him, and attached to the instrument at the time of the assignment. 3S. & R. 158. An indenture binding an apprentice toa man, his heirs and assigns, without naming executors, cannot be assigned by his executors. 4S.&R.109. 1 Bouv. Inst. 162. And where an apprentice was bound to two copartners, or the survivor of them, and in case of dissolution, he was to have the right to elect which of the partners he would serve ; and on a dissolution, one of the partners assigned to the other all his interest in the indentures, the court held, that to make the election of the apprentice valid, it must be done with the consent of the parent or guardian, and that the dissolution abrogated the indenture, the parent not consenting to the election. 1 Ash. 405. 1 Bouv. Inst. 162. VII. OF THE BINDING OF POOR OHILDREN. It shall be lawful for the overseers of every district, with the approbation and consent of two or more magistrates of the same county, to put out as apprentices all poor children whose parents are dead, or, by the said magistrates, found to be unable to maintain them, so as that the time or term of years of such apprenticeship, if a male, do expire at or before the age of twenty-one years ; and, if a female, at or before the age of eighteen years. Act 13 June 1836, § 8. Purd. 47. The word “district,” in this act, shall be construed to mean “ township,” and “borough, and every other territorial or municipal division, in and for which officers charged with the relief and support of the poor are directed or authorized by law to be chosen; but nothing in this act contained shall be taken to repeal or otherwise interfere with any special provision made by law for any city, county, township, borough or other territorial or municipal divisions.” Ibid. § 45. Purd.,796. APPRENTICES. 145 Aldermen have the same power as justices of the peace under this act. 18. & R. 248. In the binding of an infant as an apprentice s the overseers of the poor, it is not necessary that the infant should join in the indenture. 3S. & R. 158. In Philadelphia, under the 15th section of the act of 15th March 1828, the guardians of the poor have authority to bind out a child who has received public assistance from the out-door officers of the guardians, but who has not received such support in the almshouse or children’s asylum. 4 P. L. J. 396. By act 27th February 1847, orphans admitted into the Girard College are directed to be bound to the corporation of the city of Philadelphia, who are authorized to bind them out as apprentices, on their arrival at the age of fourteen years. P. L. 178. VIII. OF APPRENTICES GENERALLY. The relation of master and apprentice, until dissolved by the quarter sessions, cannot be questioned in a suit by the master for harboring his apprentice, under the act of 1770. 3 W. & 8.178. An apprentice cannot maintain an action against his master for extra work done by him for the latter, during the term of apprentice- ship, although the work was done upon the express promise of the master to pay for it. 1 Wh. 118.. But-an apprentice is an operative within the meaning of the 5th section of the bankrupt law of 1841; and where a master, before his bankruptcy, made an express promise to pay his apprentice for all over-work, the court directed the assignee to pay him accordingly. 1 P. L. J. 368. 3s An indenture of apprenticeship may be vacated by the consent of all parties to it. 18. & R. 330. 1 Bouv. Inst. 166. An apprenticeship is determined by the death of the master: Burr. 8. C. 782: unless the indenture be to executors and administra- tors. See 1B. 178. 48. &R. 109. And it may be put an end to, by the master telling his apprentice “ he might go where he pleased,” and giving up his indentures. Burr. 8. C. 629. ; IX. CoMPLAINT OF AN APPRENTICE. , A. B., the aEp bes of C. D., of the county of E., carpenter, personally appears this day, July 5th 1859, and makes complaint—that his master has severely beaten him with a large stick of wood—(or that his master does not furnish him with necessary food and clothing)—(or that G. H., a journeyman in the employ of the said C. D., is in the habit of kicking and cuffing him)—or that G. H., a journeyman in the employ of the said C. D., is in the habit of getting drunk and profanely swearing)—(or that he has otherwise refused or neglected to fulfil the covenant of the indenture between them.) (Signed, ) A. B. Before J. B., Justice of the Peace, July 5th 1859. Any of which complaints being made, the justice should send a notice to the master requiring his attendance at the office of the justice. X. Novick To THE MASTER. ‘ To C. D., of the County of Erie. Srir,—Your apprentice A. B. has this day, July 5th 1859, called at my office in F. township, in the said county, and made complaint that you have severely beaten him with a large stick of wood—(or that you have neglected or refused to have him furnished with sufficient wholesome food or clothing)—(or that G. H., a journeyman in your employ, is in the habit of kicking and cuffing the said rAd baer! 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 fulfil the covenants of the indenture between you.) I appoint to-morrow, Tuesday, the 6th of July, at 3 o’clock in the afternoon, to inquire into this complaint, at my office, in the township of F., in the said county, at which time and place I request you will attend, bringing with you the said A. B., and any other persons you may think proper, that this complaint may be fully inquired into. 3 Witness my hand and seal, at F. township, county of Erie, July 5th 1859. J.RB., Justice of the Peace. If such notice be neglected, and the master do not appear, the justice shall thereupon issue his warrant against the person or persons on whom it may have been served, taking care to be well satisfied, on oath or affirmation, that the notice has been served, before any other process shall issue. 146 APPRENTICES. XI. Form oF A WARRANT AGAINST A MASTER. COUNTY OF CAMBRIA, ss. : The Commonwealth of Pennsylvania, To any Constable of the said county, greeting: : You are hereby commanded to take the body of [C. D.] if he be found in the said county, and bring him before J. R., one of our justices in and for the ‘said county, to’ answer the commonwealth upon a charge, founded on the oath a affirmation] of A. B., of having severely beaten the deponent, his apprentice, with a large stick of wood, and further to be dealt with according to law. And for so doing this shall be your warrant, Wirnzss the said v, R., at E. township, in the said county, who hath hereunto set his hand and seal, the [sixth] day of [July,] in the year of our Lord one thousand ee hundred and fifty-nine. J. B., Justice of the Peace. [szaL. 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 complaint and notice, which arg always to be made in strict accordance with the statement of the apprentice, and with each other. It is unnecessary to multiply forms or notices in order to exhibit the difference between those which may be made against a mistress or against mas- ters, from those against a master; the magistrate will be abundantly competent to note such differences. Attention and some experience will be of much value in these, as well as in all other matters which may come before him. Similar memo- randa may be made and notices given in regard to complaints made by masters against apprentices. When it becomes necessary to issue a warrant against an apprentice, it may be in the following form: XT. Warrant FoR AN APPRENTICE. COUNTY OF ERIE, ss. : The Commonwealth of Pennsylvania, To any Constable of the said county, greeting: You are hereby commanded to take the body of [A. B.] if [he] be found in the said county, and bring ne 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. Wirness the said J. R., at ¥. 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 fifty-nine. J. R., Justice of the Peace. [sxat.] If it shall become necessary to bind the parties over to the next county court of quarter sessions, recognisances should be i and a return made to the court. A copy of the docket entry of the magistrate will be a proper return to bring the matter under the notice of the court. XIII. RecognisancE TO BE TAKEN OF THE MASTER TO ANSWER TO A COMPLAINT . MADE BY HIS APPRENTICE. You, C. D., do acknowledge yourself to be indebted to the commonwealth in the sum of $100, to be levied of your goods and chattels, lands and tenements, upon condition that if you shall appear at the next Court of Quarter Sessions, to be held at ——, for the county of ——, then and there to answer to a complaint made against you, of having severely beaten your apprentice, A. B., and shall not depart the court without leave, then , this recognisance shall be void, otherwise to be and remain in full force and virtue. Ave “ 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 recognisance, give security for his appearance. ’ One party being bound over to answer to a charge, the person or persons who APFRENTICES. 147 have made the charge should be bound in recognisance to give evidence, at the court, when the case shall come before it. : XIV. RECOGNISANCE OF AN APPRENTICE TO GIVE EVIDENCE. You, A. B., do acknowledge yourself to be indebted to the commonwealth, in the sum of $50, to be levied of your goods and chattels, lands and tenements, upon condition that if you shall personally appear at the next Court of Quarter Sessions, to be held at —, in and for the county of Erie, then and there, on behalf of the commonwealth, to give evidence in the case of the Commonwealth vs. C. D., for severely beating you, and shall not depart the court without leave, then this recognisance shall be void, otherwise to be and remain in full force. Are you content? A recognisance of the same kind will answer when the master shall be required to be bound over to give evidence. . XV. DockrtT ENTRY IN CASE OF MASTER AND APPRENTICE. Commonwealth ) July 5th 1859, A. B., the apprentice of C.\D., the defendant, personally vs. appears and makes complaint that his master has severely beaten him C. D. with a stick of wood. Same day wrote a 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. D. of H. township, carpenter, bound in $100 for his appearance at the next Court of Quarter Sessions to answer to the above charge, &e, 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. 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. . Witness my hand and seal, at F—— township, in the county of Erie, this 10th day of August, a. p. 1859. J.R., Justice of the Peace. [szat.] XVI. AN ASSIGNMENT OF AN APPRENTICE TO BE WRITTEN ON THE BACK OF THE INDENTURE. Know ati 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 indenture, and the said C. D., the apprentice therein named, unto G. H., his executors, administrators and assigns, for the residue of the term within mentioned, he and they performing all and singular the covenants therein contained on my part to be kept and performed. Awnp 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 mentioned, and to perform towards him all and singular the covenants within mentioned on my part to be kept and performed. vn I, the said G. H., for myself, my executors and administrators, 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. Wutnzss our hands and seals, at ——, in the county of Erie, the sixteenth day of August 1859. Signed, sealed and delivered, August 16th 1859, A.B. [szat. before J. R., Justice of the Peace, C.D. fear. E.F. [szau. ' G. HH. [sean [ 148 ] Arrest for Debt. Srvc the passage of the act of the 12th of July 1842, the only civil cases in which a justice of the peace can issue a capias or warrant of arrest, or an execution authorizing the imprisonment of the person of the defendant, are trespass, money or where it is proved by affidavit, that the plaintiff’s demand is for the recovery ot money collected by a public officer, or for official misconduct. That act provides as follows : ‘No person shall be arrested or imprisoned on any civil process issuing out of any court of this commonwealth, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages for the non- performance of any contract, excepting in proceeding, as for contempt, to enforce civil remedies, action for fines or penalties, or on promises to marry, on moneys collected by any public officer, or for any misconduct or neglect in office, or in any rofessional employment, in which cases the remedies shall remain as heretofore.” Act 12 July 1842, §1. Purd. 36. See ‘“No execution issued on any judgment rendered by any alderman or justice of the peace, upon any demand arising upon contract, express or implied, shall contain - a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of the alderman or justice of the peace, either that such judgment was for the recovery of money collected by any public officer, or for official misconduct.” Ibid. § 23. Purd. 595. ‘ “No capias or warrant of arrest shall issue against any defendant in any case in which, by the provisions of the preceding action, an execution on the judgment recovered could not be issued against the body; and whenever a capias or warrant of arrest in such case shall issue, the like affidavit shall be required as for the issuing of an execution by the provisions of said section.’”’ Ibid. § 24. “ 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 captias 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 summons, 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, the justice or alder- man issuing the same may proceed to hear and determine the case in the manner heretofore allowed by law.” Ibid. § 25. If it appear upon the face of the record that the justice has exceeded his juris- diction, by issuing process against the person of a defendant in a case in which such process is forbidden by law, his proceedings will be considered a nullity, and the defendant will be discharged on habeas corpus. 1D. 185. Thus, in an action for a penalty, which is directed to be recovered ‘as debts of like amount are by law recoverable,” the defendant is not liable to arrest; and an execution in such case, authorizing the imprisonment of the person, is void, and the defendant may be relieved by a habeas corpus. Martin’s Case,’'Com. Pleas, Phila. 15 April 1854. And see 4 Y. 237, 240. Where a plaintiff has an election to bring an action either ex contractu or ex delicto, as in the case of a common carrier or other bailee, he cannot, by such election, deprive the defendant of any substantial privilege or defence; and in such case the defend- ant shall not be subjected to imprisonment in consequence ofthe mere change in the form of action. 5 P. L. J. 118. 1 T. & H. Pr. 275. See 6 Barr 362. But where the action is for a distinct tort, although one deducible from the existence of a con- tract, if the plaintiff disaffirm the contract, and proceed for the fraudulent or tortious conduct of the defendant, in such cases bail may be demanded in the first instance. Bright. R. 197. And where the action is in form ex delicto, after judgment, an execution may issue against the body of the defendant. 2 P. L. J. 48. ARSON. 149 It has been decided in New York that the 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. 5 Hill 578. Therefore, where there has been a wrongful conversion of goods, the defendant may be held to bail in New York, in whatever way the property came into his possession. Ibid. 182. A justice of the peace has no power to issue the warrant of arrest, prescribed in cases of fraud, by the act of 1842. Wood »v. Bell, Pittsburgh Legal Journal, 25 November'1854. Nor can a judge of the common pleas issue such warrant on a transcript of the judgment of a justice filed for the purpose of creating a lien. 2 P. 251. An arrest on civil process may be made on the return day of the writ. 9 Johns. 117. But an arrest after the time it is made returnable is a trespass and void. 6 Mass. 22. The neglect of an attorney to pay over money collected for his client, is within the exceptions of the act of 1842, and upon a judgment obtained for money so col- lected, he may be arrested in execution. 2 Gr. 60. Women are not relieved from arrest for debt by the act of 1842, but by that of 19th February 1819, 7 Sm. 150, which provides that no female shall be arrested or imprisoned for or by reason of any debt contracted after its passage, and this provision is re-enacted by the act of 13th June 1836, § 6 (P. L. 573). Morris v. Hofheimer, District Court, Phila. 6 June 1860. And consequently, an attachment cannot issue against a female trustee to compel payment of the trust funds in her hands; for such process is but a civil writ of execution. 1 Ash. 373. —— =. Arson. I. Statutes relating to arson. IV. Warrant against the accused. II. What constitutes arson. V. Commitment for arson. III. Information for arson. I. Acr 31 Maron 1860. Purd. 240. Szcr. 187. If any person shall maliciously and voluntarily burn or cause to be burned, or set fire to, or cause, or attempt to set fire to, with intent to burn any fac- tory, mill or dwelling-house of another, or any kitchen, shop, barn, stable or other out-house that is parcel of such dwelling, or belonging or adjoining thereto, or any other building by means whereof a dwelling-house shall be burnt, then, and in every such case, the person so offending shall be adjudged guilty of felonious arson, and, on conviction thereof, shall be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confinement, at labor, not exceeding twelve years. And in case of the malicious burning or setting fire to any dwelling-house, or building that is parcel of such dwelling or belonging thereto, there is any person in the same, the offender, being convicted thereof, shall be sentenced to pay a fine not exceeding four thousand dollars, and to undergo an imprisonment, at separate or solitary confinement, not exceeding twenty years. Sect. 138. If any person shall wilfully and maliciously burn, or cause to be burned, set fire to, or attempt to set fire to, with intent to burn, or aid, counsel, procure or consent to the burning or setting fire: to, of any barn, stable or other building of another not parcel of the dwelling-house, or any shop, storehouse or warehouse, malthouse, mill or other building of another, or any barrick, rick or stack of grain, hay, fodder or bark, piles of wood, boards or other lumber, or any ship, boat or other vessel of another lying within any county in this state, or any wooden bridge within the same, or state capitol or adjoining offices, or any church, meeting- house, court-house, jail or other public building belonging to this commonwealth, or to any city or county thereof, or to any body corporate or religious society what- ever. the person offending shall, on conviction, be adjudged guilty of a misdemeanor, und be sentenced to pay a fine not exceeding two thousand dollars, and to undergo 150 ARSON. an imprisonment, by separate or solitary confinement, at labor, not exceeding ten ears. i Srcr. 139. Every person, being the owner of any ship, boat or other vessel, or the owner, tenant or occupant of any house, out-house, office, store, shop, warehouse, mill, distillery, brewery or manufactory, barn or stable, or any other building, who shall wilfully burn or set fire thereto, with intention to burn the same, with an intention thereby to defraud or prejudice any person, or body politic or corporate, that hath underwritten or shall underwrite any policy of insurance thereon, or on any moneys, goods, wares or merchandise therein, or that shall be otherwise interested therein, shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years. Secor. 140. If any person shall wilfully set on fire, or cause to be set on fire, any woods, lands or marshes within this commonwealth, so as thereby to occasion loss, damage or injury to any other person, he or she shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one hundred dollars, and undergo an imprisonment not exceeding twelve months. : Sxor. 141. If any person shall unlawfully and maliciously place or throw in, into, upon, against or near any building or vessel, any gunpowder or other explosive mixture, with intent to do bodily harm to any person, or to destroy or damage any building or vessel, or any machinery, working tools, fixtures, goods or chattels, every such offender shall, whether or not injury is effected to any person, or any damage to any building, vessel or machinery, working tools, goods or chattels, be guilty of felony, and, being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary con- finement at labor, not exceeding three years. II. WHAT CONSTITUTES ARSON. Arson, at common law, is the maliciously, voluntarily and actually burning of the house or out-house of another. 4 Bl. Com. 226. And this definition is followed by the act of 1860, prescribing the punishment of arson. At common law, the burning of one’s own property unaccompanied by an injury to, or by a design to injure, some other person, is not a punishable offence. 2 Pick. 325. Lewis’ Cr. L. 81. 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. Lewis’ Cr. L. 79, 82. 2 East P. C. ch. 21, § 7, p. 1080. Cald. 227. ; The burning of a barn, with hay and grain in it, is felony and arson at common law. 5 W.&8. 385. Ifa building be set on fire which is so near a dwelling-house as to endanger the burning of it, it is arson. 2 Rich. 242. 10 Met. 422. A jail is an inhabited dwelling-house within the statute. 18 Johns. 115. 4 Call 109. Setting fire to a jail by a prisoner, merely for the purpose of effecting his own escape, and not with an-intention to burn it down, is not within the statute. 18 Johns. 115. 5 Iredell 350. But if the prisoner intend to burn down the building, to effect his main design, which is to escape, he is guilty. 5 Iredell 350. If any part of a dwelling-house, however small, be consumed by fire, maliciously and wilfully applied, the offence of arson is complete. 16 Mass. 105. 3 Iredell 570, In an indictment at common law it is unnecessary to allege that the house burned was a dwelling-house, for the word “ house” imports it. 4 Call 109. Setting fire to an unfinished boat in a shop, with intent to burn the building, is a misde- meanor at common law. Thacher’s Cr. Cas. 240. It is an attempt to commit arson, if the prisoner persuade another to do it, and give him the materials, he himself not intending to be present. 4 Hill 133. Such as be taken for house-burning, feloniously done, are not bailable by justices of the peace. 2 Inst. 189. 2 Ash. 236. 2 U. S. Law Mag. 816. Purd. 250-1. . II] INFORMATION FOR ARSON. BERKS COUNTY, ss. J. L., of the township of B——., in the county of Lancaster, yeoman, personally came before J. R., one of the Justices of the Peace in and for the county of Berks, and made oath, that on the night of the twentieth instant, between the hours of eight and twelve of ARSON. 151 the clock, the barn of the said J. L., situated in B—— township aforesaid, containing a large quantity of hay and grain, was entirely consumed by fire; that threats having been made upon a former occasion by F. W., of L—— township, in the said county of Lancaster, laborer, that he would do this deponent some mischief, and the said F. W., since the burn- ing of the said barn, having left his usual place of abode in L—— townshi aforesaid, the deponent hath good cause to suspect, ai doth suspect, the said F. W.., of setting fire to.the said barn. Further saith not. J. L. Sworn and subscribed, February 23d 1859, before J. R., Justice of the Peace. IV. WARRANT AGAINST THE ACCUSED. BERKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of O——, in the County of Berks, greeting: Wuereas, information hath been made unto J. R., one of the Justices of the Peace in, and for the said county, on oath of J. L——, of the township of B——,, in the county of Lancaster, yeoman, that on the night of the twentieth instant, between the hours of eight and twelve of the clock, the barn of the said J. L——, situated in B township afore- said, 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 the said barn ; you are, therefore, hereby commanded forthwith to take the said F. W., and bring him before the said J. R., to answer unto the said complaint, and further to be dealt with according to law.. Witness the said J. R., at the borough of R——, in the said county of Berks, the twenty-third day of February, in the year of our Lord one thousand eight hundred and fifty-nine. 3 J. R., Justice of the Peace. [szau.] Return of Constable.—I have taken the within-named F, W——, whose body I have ready, as within I am commanded. X. Y., Constable. V. CoMMITMENT FOR ARSON. BERKS COUNTY, ss. ‘The Commonwealth of Pennsylvania, To the Constable of O—— township, in the County of Berks, and to the Keeper of the Common Jail of the said county: , Wuergas, F. W., of O—— township aforesaid, laborer, hath heen, brought before K, M., one of the Justices of the Peace in and for the county aforesaid, charged on oath of J. L., of the township of B. , in the county of Lancaster, yeoman, with having, on the night of the twentieth instant, between the hours of eight and twelve of the clock, set fire to the barn of the said J. L., situated in B—— township aforesaid, containing a large quantity of hay and grain, whereby the same was entirely consumed: These are, there- fore, to command you the said constable to convey the said F. W., forthwith, to the com- mon jail of the said county of Berks, and deliver him to the keeper thereof; and you the said keeper are hereby commanded to receive the: said F. W. into your custody, in the said jail, and him there safely keep until he be thence delivered by due course of law. Witness the said K. M., at O—— township aforesaid, the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and fifty-nine. : _K.M., Justice of the Peace. [srat.] The crime described in the 138th section of the Penal Code is a misdemeanor only, which is triable in the court of quarter sessions; but that described in the 137th section, is a felony, of which exclusive jurisdiction is vested in the oyer and terminer 8 Pittsburgh Leg. J. 290, [ 152 J Assault and Gattery. I. Definition of an assault and battery. IV. Complaint for an assault and battery. II. What will justify a battery. V. Warrant for an assault and battery. III, Provisions of the penal code. VL. Proceedings before the justice. I. DEFINITION OF AN ASSAULT AND BATTERY. WHAT IS DEEMED AN ASSAULT.—An assault is an attempt or offer with force or violence to do a corporal hurt to another; as by striking at him with or without a weapon, or presenting a gun at him, at such a distance to which the gun will carry ; or pointing a pitchfork at him, standing within reach of it; or by holding up one’s: fist at him, or by drawing a sword and waving it in a menacing manner. Bac. Abr. Or by riding a horse so near to one as to endanger his person. 3 Strob. 137. Or by any such like act done in an angry, threatening manner. 1 Hawk. P. C. 110. But it seems agreéd, 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. 18. & R.347. See 2 Greenl. Ey. § 82. 1Cr. 0. 0.310. 8 Ibid. 435. 5 Ibid. 348. And to present a gun within shdoting distance of one who is armed with a knife, and about to attack the defend- ant, is no assault, if there was no attempt to use the gun, or intention to use it, unless first assailed. 9 Ala. 79. 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. Thus, to attack and strike with a club with violence the horse before a carriage in which a person is riding, is an assault on the person. 1 P. R. 380. And taking hold of a person’s coat, in an angry, rude or insolent manner, or with a view to hostility and detaining the wearer, amounts not only to an assault, but to a battery. 1 Bald. 600. One charged with an assault and battery may be found guilty of the assault, and yet acquitted of the battery; but every. battery includes an assault: therefore, on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery, it is sufficient. 1 Hawk. P. C. 110. . : II. WHAT WILL JUSTIFY A BATTERY. 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. Nels. Assault. Thus, also, in the exercise of an office, as that of churchwarden or beadle, a man may lay hands upon another, to turn him out of the church, and prevent his disturbing the congregation. Ibid. 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. Abr. So, if a parent, in a reasonable manner, chastise his child, or a schoolmaster his scholar, or a jailer his prisoner, or if one confine a friend who is mad, and bind and beat him, &c., in such a manner as is proper in his circumstances, or if a man force a sword from one who offers to kill another, or if a man gently lay his hands on another, and thereby 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 endeavors, with violence, to dispossess me of my lands, or the goods of another, delivered to me, to be kept for him, and who will not desist upon my laying my hands gently on him, and disturbing him, or if a man beat, wound or maim one who makes an assault upon his person or that of his wife, parent, child or master, or if a man fight with, or beat one who attempts to kill any stranger, if the beating was absolutely necessary to obtain the good end proposed, or rendered necessary in self-defence—in all these cases, it seems the party may justify the assault and battery. Bac. Abr. ’ It is admissible for the defendant to show that the alleged battery was merely the ASSAULT AND BATTERY. 153 correcting of a child by its parent, the correcting of a servant or scholar by his master, or the punishment of the criminal by the proper officer; but if the parent or - master chastising the child, exceed the bounds of moderation and inflict cruel and merciless punishment, he is a trespasser, and liable to be punished by indictment. The law confides to schoolmasters and teachers a discretionary power in the inflic- tion of punishment upon their pupils, and will not hold them responsible criminally, unless the punishment be such as to occasion permanent injury to the child, or be a merely to gratify their own evil passions. Whart. C. L. § 1259. 4 Am. L. TIT. Provisions oF THE PENAL CODE. Any person who shall be convicted of an assault and battery, or of an assault, shall be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court. Act 31 March 1860, § 97. Purd. 234. If any person shall unlawfully and maliciously inflict upon another person, either with or without any weapon or instrument, any grievous bodily harm, or unlawfully cut, stab or wound any other person, every such person shall be guilty of a misde- meanor, and being convicted thereof, shall be sentenced to pay a fine not exceeding one thousand dollars, and to an imprisonment, either at labor by separate or solitary confinement, or to simple imprisonment, not exceeding three years. Ibid. § 98. IV. CoMPpLAINT FOR AN ASSAULT AND BATTERY. MONROE COUNTY, ss. Before me, the subscriber, one of the justices of the peace in and for the county of Monroe, personally came A. B., of the township of S——, in the said county, yeoman, who, upon his solemn affirmation, according to law, saith, that on Friday last, being the fifth day of May, instant, at the township aforesaid, C. D., of the same township, currier, made an assault upon this affirmant, and then and there did violently beat and abuse him, and further saith not. Affirmed and subscribed, May 8th, a. p. 1859, before me, J. R., Justice of the Peace. (Signed) A. B, V. WARRANT FOR AN ASSAULT AND BATTERY. MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Monroe: Wuereas, complaint hath been made before J. R., one of the justices of the peace in and for the county of Monroe, upon the solemn affirmation of A. B., of the township aforesaid, yeoman, that on Friday last, being the fifth day of May, instant, at the township afore- said, C. D., of the same township, currier, made an assault upon him, the said A. B., and then and there did violently beat and abyse him. These are, therefore, to command you forthwith to take the said C. D., and bring him before the said J. R., to answer the said complaint, and further to be dealt with according to law. Witness the said J. R., at S, township aforesaid, the eighth day of May, in the year of our Lord one thousand eight hundred and fifty-nine. J. R., Justice of the Peace. [emai] Return of the Constable—The within-named C. D. is now in my custody. T. Y.; Constable, May 8th 1859. VI. On hearing, if the defendant admit the truth of the charge, or if the justice shall, by evidence, be satisfied it is well founded, he is to call upon the defendant 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 the defendant neglect or refuse to give the bail required, he must be committed to jail. If the evidence shall be such as to satisfy the justice that the complainant was the aggressor, he should call upon him to give security for his appearance to answer at the next court of quarter sessions, unless the parties can be persuaded that it is a matter, a public inquiry into which would reflect no credit on either of them, and ought to be discontinued. If the defendant be discharged, he should on no account be charged any costs. If either of the parties be bound over, the-justice should, as in every case of a binding over, make a return to the next court of the proceedings had before him, to the end that such-order may be taken on it as the public good shall require. 154 ASSIGNMENTS. By the revised penal code, justices of the peace are authorized to settle cases of assault and battery, where the complainant shall appear before him, and acknowledge to have received satisfaction for the injury, and thereupon, in his discretion, to dis- charge the defendant from his recognisance, or in case of committal, to discharge the defendant from arrest. This, however, does not extend to an assault and battery committed by or on any officer or minister of justice. In cases of a trivial nature, in which the public have no interest, and which in a vast majority of instances only expose the prosecutor and the defendant to contempt or shame, it is the duty of the justice to endeavor, to exercise his influence, to do his best, to induce them to consent that all further proceedings may be stayed. lela Assiquments, I. Of void assignments. III. Proceedings on an assignment. IL. Of preferences in assignments. I. OF vorb ASSIGNMENTS. Inasmucg as the proceeds of property in the hands of an assignee for the benefit of creditors, under a void assignment, are liable to be attached by the judgment creditors of the assignor, by process of attachment in execution, it is of great importance that a justice of the peace should be well instructed in the forms which are required to render such an assignment valid. 5 W.& 8.103. 5 Barr 39. 1 H. 307. And this is régulated by the act of 24th March 1818, which provides that all assignments for the benefit of creditors, “which shall not be recorded in the office for recording of deeds, in the county in which such assignor resides, within thirty days after the execution thereof, shall be considered null and void as against any of the creditors of the said assignor.” Purd. 61. A partial assignment is within the act, and must be recorded. 2 Wh. 240. And an assignment of the surplus remaining after such partial assignment. 5 Wh. 280. And so is a power of attorney to collect moneys and pay them to certain creditors, in a prescribed order of preference. 2 J. 164. And also an absolute conveyance, with accompanying declaration of a trust. 4 Barr 477. And a lease reserving rent in trust for the benefit of creditors, is within the aet. 8 C. 458. But a mortgage in trust to secure certain creditors is not within the act. 4 W. & §. 383. Nor is a judgment in trust for creditors. 20.938. Nor an assignment made directly to the creditors beneficially interested in it, either as collateral security, or in satisfaction. 12 H. 432. 7.502. And see 2 Wr. 882. 8 Phila. R. 454. The assignment must be recorded in the proper county, although the personal property be situated in another state. 7 Barr 499, But the act does not apply to an assignment by a resident of another state. 5 H.91. 6 H. 185. 1 Phila. R. 29. And where an assignment includes as well real as personal estate, it must be recorded not only in the county where the assignor resides, but also in the county where the land is situate, or it is not valid as against a subsequent purchaser from the assignor, without notice. 3 H. 399. An unrecorded assignment is valid as to a subsequent voluntary assignee. 4 Barr 274. And an unrecorded mortgage is a lien as against an assignee of the mort- gagor in trust for the benefit of creditors; for he is neither a creditor nor a pur- chaser for value. 8 0. 121. In order to give effect ta a deed of assignment as against the creditors of the assignor, it is necessary that there should be a delivery of it to the assignee. 5 W. 343. But an actual manual delivery is not required ; the execution of an assignment to a trustee, without his previous knowledge or assent, and the delivery of it to a messenger to be conveyed to him, is enough, if he subsequently assent to it, and accept the trust. 1B. 502. So, the deposit of it in the post-office directed to the assignee, is equally available. 5 W. 343. And s is a delivery toa third person for the use of the assignee. 5 8S. & R. 318. Grae ASSIGNMENTS. 155 The act of 3d May 1855 provides that ‘whenever any person making an assign- ment of h’s or her estate situate within this conimonwealth, for the benefit of credi- tors, shall be resident out of this state, such assignment may be recorded within any county, where such estate, real or personal, may be, and take effect from its date. Provided, That no bond fide purchaser, mortgagee or creditor having a lien thereon before the recording in the same county, and not having had previous actual notice thereof, shall be affected or prejudiced: and the courts of common pleas may dis- miss or appoint trustees under such assignment, as in other cases.” Purd. 61. By act 28d April 1857, this is extended to prior assignments. The résolution of the 21st January 1843 provides that “It shall not be lawful for any company incorporated by the laws of this commonwealth, and empowered to con- struct, 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, laborers 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, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer, shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, ereditdrs‘as aforesaid.” Purd. 60. And the act _of 4th April 1862 gives a remedy in such case, by scire facias, against the assignee. Purd. 1266. II. OF PREFERENCES IN ASSIGNMENTS. A debtor may make a voluntary assignment for the benefit of his creditors of his estate real or personal, or any part thereof, but he may not, in and by the instrument of assignment, create and reserve an interest for himself or his family. Such an instrument is void under the statute of 13 Eliz., which avoids all conveyances made with intent to delay, hinder or defraud creditors. 6 B. 844. 12 8. & BR. 201. 1R. 163. 2 P. R.92. 3 P.R. 91. ‘ An assignment stipulating for a release and excepting the household furniture of the assignors and property exempt from execution, is voidable by creditors. 2 J. 339. But a reservation of property to the amount of $300, such as is exempt from levy and sale by the act of 1849, will not avoid the deed. 2 0.473. Nor will an exception of certain specific property. 12 C. 258. And see 3 Wr. 160.19 Leg. Int. 133. The acts of 1843 and 1849, have imposed the further restriction upon assignors, that they shall not prefer one creditor or set of creditors to another; and have avoided all such attempts to give a preference. : « All assignments of property in trust which shall hereafter be made by debtors to trustees, on account of inability at the time of the assignments to pay their debts, to prefer one or more creditors (except for the payment of wages of labor), shall be held and construed to inure to the benefit of all the creditors in proportion to their respective demands; and all such assignments shall be subject in all respects to the law? now in force relative to voluntary assignments: Provided, That the claims of laborers thus preferred shall not severally exceed the sum of fifty dollars.” Act 17 April 1843, § 1. Purd. 60. i “ Any condition in assignments of property made by debtors to trustees on account of inability at the time of the assignment to pay their debts, within the meaning of the .act, entitled ‘An act to prevent preferences in assignments,’ approved April 17th 1843, for the payment of creditors only who shall execute a release, shall be taken as a preference in favor of such creditors, and be void, and the assignment be held and construed to inure to the benefit of all the creditors in proportion to their respective demands.” Act 16 April 1849, § 4. Purd. 60. The act of 1843 does not invalidate the assignment; it only avoids preferences in assignments, and makes them to operate for the benefit of all the creditors of the assignor as if such preferences were not inserted. 6 H. 185, 331. Nor does it prohibit a composition with a part of the creditors. 6 H. 331. 11 H. 481. Nor an assignment of partnership property for the payment of the firm debts only. 9 H. 77. For such assignment in no way hinders the several creditors from reaching the surplus remaining after payment of the debts of the partnership. 9 C. 414. Nor does it prevent a debtor from assigning a particular chose in action directly to 156 ASSIGNMENTS. a creditor for the purpose of securing his debt, although the effect may be to give him a preference over the other creilitors. 1 Gr. 212. : Judgments confessed to secure creditors are not such preferences as are avoided by this act.. 7 Barr 449. It goes no further than to forbid preferences in and by the instrament by which, the debtor surrenders to his creditors all dominion over his property. 7 H. 59, 61. 8 H. 37, 68, 152. When property has been actually levied upon by the sheriff, and an assignment is made pending the levy, if the execution creditors consent to a sale by the assignee, he is justified in first paying the amount of these executions, and the necessary costs of the levy; if, however, no actual levy was made, and the executions were issued for the mere purpose of giving these creditofs a preference, such payments ought not to be allowed. 2 P. 103. The wages of laborers are not only exempted from the operation of the act of 1848, but they are further protected by the act of 22d April 1854, which provides as follows : “In all assignments of property, whether real or personal, which shall here- after be made by any person or persons or chartered company, to trustees or assignees, | on account of inability, at the time of the assignment, to pay his or their debts, the wages of miners, mechanics and laborers employed by such person or persons or chartered company, shall be first preferred and paid by such trustees or assignees, before any other creditor or creditors of the assignor: Provided, That any one claim thus preferred shall not exceed one hundréd dollars.” Purd. 60. This act, however, does not give the wages of miners, mechanics and laborers a preference of payment over liens of record. 5 C. 328. 9. 511. And see 6 0. 274, It extends to real as well as personal estate. 5 C. 328. 9 G. 511. And see 18 Leg. Int. 76. III. ProckEDINGS ON AN ASSIGNMENT. In every case in which any person makes an assignment of his estate, real or personal, or of any part thereof, in trust for the benefit of creditors, it is the duty of the assignee, within thirty days after the execution thereof, to file in the office of the prothonotary of the court of common pleas of the county in which the assignor resides, an inventory or schedule of the estate or effects so assigned, accom- panied by an affidavit of the assignee that the same is a full and complete inventory thereof, so far as the same has come to his knowledge. ; The court of common pleas thereupon appoints two or more disinterested and tompetent persons, to appraise the estate and effects so assigned. These appraisers, cr two of them, having first taken an oath or affirmation, before some person having authority to administer oaths, to discharge their duties with fidelity, are required forthwith to proceed and make an appraisement of the estate and effects assigned, according to the best of their judgment; and having completed the same, to return the inventory and appraisement to the court, where it is filed of record. The appraisers are entitled, as compensation for their services, to receive a sum not exceeding one dollar for each day diligently employed by them in the performance of their duties. The appraisement having been filed, the assignee is required to give bond, with at least two sufficient sureties, to be approved by one of the judges of the court of common pleas, in double the amount of the appraised value of the estate so assigned ; which bond is filed in the prothonotary’s office, and by him entered of record, and oe 2 the use of all persons interested in the assigned estate. Act 14 June 1836, urd. 61. The assignee may act before giving bond. If he neglect to file an inventory or give bond, the remedy is to cite him before the court, to show cause why he should not be dismissed. 6 W. & 8. 326. Although the act of assembly requires that the assignee should give bond with two sufficient sureties, to be approved by one of the judges, yet a bond with but one surety and which does not-appear to have been a is not void; and it may be enforced against the assignee.and surety. 8 If any of the assigned property be the subject of a suit pending, the assignee is authorized by the act of 13 June 1840, to appeal from an award of arbitrators therein, and also to sue out a writ of error upon the judgment that may be rendered, without paying costs or giving security; unless in the former case, the assignce shall have taken out the rule of reference. Prd. 61. [ 157 J Assumpsit, TEE action of asswmpsit lies where a party claims damages for breach of simpls contract, that is, a promise not under seal. Such promises may be express or im- lied; and the law always implies a promise to do that which a party is legally liable to perform. This remedy is consequently of very large and extensive appli- cation. Stephen on Pleading 18. And the act of 1810 gives to justices of the peace, jurisdiction of all causes of action arising from contract, either express or implied, where the sum demanded does not exceed $100, except in cases of real contract where the title to lands may come in question, or actions upon promise of marriage. They have, consequently, jurisdiction of most cases of assumpsit, with the exception of those which are specially excluded by the statute. In every action of asswmpsit there ought to be a consideration, promise, and . breach of promise. Leon. 405. To make a consideration sufficient in law to sup- port an assumpsit, there must be some benefit arising to the defendant or some injury or loss to the plaintiff. 2B. 509. It is not essential that the consideration should be adequate in point of actual value. It is sufficient that a slight benefit be conferred by the plaintiff on the defendant, or a third person; or even if the plaintiff sustain the least injury, inconvenience or detriment, or subject himself to any obligation, without benefiting the defendant or any other person. A consider- ation is sufficient, if it arise from any act of the plaintiff, from which the defendant or a stranger derives any benefit, however small, if such act is performed by the plaintiff, with the assent, express or implied, of the defendant; or by reason of any damage, or any 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. 105. 5 Barr 162. 1H. 538. Thus, assumpsit may be maintained on a promise to sub- scribe a certain amount towards the building of a church. 6 H. 13. 8 H. 260. 9 C. 114. 1 Wr. 210. A moral or equitable obligation is a sufficient consideration for an assumption. 5 B. 33. 8 W.& 8.10. But it must be such as was once a legal obligation ; as a promise to pay a debt barred by the statute of limitations; or from which the debtor has been discharged by bankruptcy ; for when a man is under a moral obligation which no court of law or equity can enforce, and he promises, the honesty and rectitude of the thing is a consideration. 1 Barr 451. . A compromise of a doubtful claim is a sufficient consideration to support a promise. 6 W. 421. 9 W. 230. And a promise to pay the debt of another, in consideration that the creditor would wait, forbear or give time indefinitely, or for a reasonable time, at the instance and request of the defendant, is binding. 5 R. 69. 2 Barr 380. Such contract, however, must be in writing. See title “Guaranty.” The law will not aid in enforcing any contract that is illegal, or the considera- tion of which is inconsistent with public policy and sound morality, or the integrity of the domestic, civil or political institutions of the state. 5 W.&8. 3821. And where part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, it avoids the whole. 5 Barr 452. The test, whether a demand connected with an illegal transaction is capable of being enforced by law, is, whether the plaintiff requires the aid of the illegal transaction to establish his case. 11 8. -&R. 164. In order to constitute a valid promise, it is not necessary that it should be made to the plaintiff himself; if made to a third person, with a view to be communicated to the plaintiff, it is sufficient. 1 Barr 334. In general, he must be made plaintiff from whom the consideration flowed. 5 Barr 521. But the action will lie bya party beneficially interested in a contract made by another. 7 W.& 8.94. Thus, if one pay money to another for the use of a third person, or, having money belong- ing to another, agree with that other to pay it to a third, action lies by the person beneficially interested. But where the contract is for the benefit of the contracting party, and the third person is a stranger to the consideration, the action must be by the promisee. 6 W. 182. See 2 Phila. R. 63. . Where one takes the personal property of another, the owner may waive the tort, and maintain assumpsit for its value. 2H.295. 2 Greenl. Ev. §§ 108, 120, 226, [ 158 J Attachment by Fustices of the Peace, Commonly called a Domestic Attachment. I. Of the nature and effects of a domestic II. Forms used in cases of domestic attach- attachment, and when it may issue ments. and be djssolved. I. A DOMESTIC ATTACHMENT is so called because it may issue against persons who are inhabitants, have their domicil, or are domesticated here, in cases where they have been guilty of certain acts of absconding, absenting or concealment ; and is, so far as respects creditors, in the nature of a commission of bankruptcy, because it is for the benefit of all the creditors, and all the property of the debtor is seized and distributed among them pro rata. 1. It can be issued only against persons who are inhabitants of the state. 2. It cannot be issued without oath or affirmation first made. 8. It is for the benefit of all the defendant’s creditors, and not for the benefit of the plaintiff alone. . 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 [rsice|, that the parties were not liable to the attachment. Serg. on Attach. 1, 2, 4, 5, 6. The act of 22d August 1752, as amended by that of 4th December 1807, pro- vides that if any person shall absent him or herself out of this government, or abscond from his or her usual place of abode, not taking care to satisfy his or her just debts, it shall and may be lawful for any justice of the peace where such per- son’s estate may be found, to grant a writ of attachment for any debt not exceed- ing one hundred dollars, directed to any constable of the same county, to attach the goods and chattels, or other effects of such person, to answer the creditor. Purd. 357-8. , Justices of the peace have no jurisdiction to issue an attachment against the property of a defendant not: residing in the state. 1 H. 28. Foreign attachment, which can only be issued by the courts of common pleas, is a remedy against debtors that are absent and non-resident; while domestic attachment is a remedy against resident debtors absenting or concealing themselves. 8 H. 147. It is not necessary to authorize the issuing of a domestic attachment by a justice of the peace, that the defendant should have absconded or secreted himself for the : of six days; that provision of the act of 1752 was repealed by the act of 1807. 3 W. 144. 1M. 75. An attachment issued by a justice of the peace may be executed by a deputy-constable. 3 P. R. 230. A domestic attackment may issue co a debt not due, if there be in other respects sufficient grounds for it. 4 W. . 201. The acts of assembly provide further that before the granting any such attach- ment, the person or persons requesting the same, or some other credible person or -persons for him or them, shall, upon oath or affirmation, declare that the defendant in such attachment is indebted to the plaintiff therein named in a sum not exceed- ing one hundred dollars, and that the defendant has absconded or departed from the place of his usual abode in this state, or has remained absent from the state, or . has confined himself in his own house, or concealed himself elsewhere, with design to defraud his creditors, as is believed, and that the defendant has not left a clear fee-simple estate in lands or tenements within this commonwealth sufficient to pay his debts, so far as the plaintiff or deponent knows or believes; which oath or affirmation the justice of the peace that grants such writ, -is empowered and required to administer. And if any attachment be granted out otherwise, or eon- trary to the trie intent and meaning of the act, the justice of the peace so grant- ing the same, shall, for every such offence, forfeit the sum of one hundred dollars, for the use of him or her that will sue for the same.Purd. 357-8. It is not necessary that the affidavit to ground a domestic attachment should aver the defendant’s residence. 1 M. 75. But an affidavit, which states the causes for ATTACHMENTS, 159 which the attachment issued in the alternative, e.g. that the defendant “ absconded ‘or departed from the place of his usual abode, or secreted himself with design,” &c., is bad, and the writ must be quashed. 3 W. 144. 1M. 75. 3 P. L. J. 307. In an action for maliciously suing out a domestic attachment, it is enough for the defence, that the suspiciousness of the plaintiff’s conduct had made recourse to an attachment a measure of reasonable precaution, irrespective of the fraudulent intention of the debtor. 4 W. & S. 201. As soon as the justice of the peace before whom the writ of attachment is return- able, accepts the constable’s return thereof, the said justice shall immediately appoint two substantial freeholders to take into their custody the goods and -chattels attached, for which they shall be accountable until they shall dispose of the same, as directed by the act of assembly. Purd. 358. The right of the trustees to the defendant’s goods does not relate back to the issuing of the attachment, as in cases of proceedings in the common pleas. 3 P. R. 230. They are entitled to a balance in the sheriff’s hands, after satisfying an execution. 3 P. R. 389. Where a deferidant against whom a domestic attachment had issued, transferred to G. a check for the payment of money, which G. applied to the payment of a debt for which he’was security for the defendant, it was held, that an action would ee by the trustees, against G., to recover the amount of the check. 1 W. & The justice is also required forthwith to publish his proceedings by advertise- ment in the most public places, near the late dwelling-place of the defendant, and likewise in one or more public newspapers, appointing the time and place for all the creditors of the person against whose effects and estate the attachment is granted, to appear, then and there, to discover and make proof of their demands. And if, after a full and careful examination, it shall appear that there is a just debt due to any person from the said defendant, exceeding the sum of one hundred dollars, then the said justice shall no further proceed, but shall deliver and certify to the prothonotary of the court of common pleas of the same county, the said _ attachment, and all proceedings thereon had before him; whereupon further pro- ceedings shall be had in the court of common pleas, with like effect as if the writ of attachment had issued out of that:court. Purd. 358. When any attachment shall be granted by a justice of the peace, no second or other attachment issued by the said justice, or by any other justice within the same county, or by the court of common pleas of the said county, shall bind or affect the property of the defendant within the county, whilst the proceedings in the first writ of attachment remain undetermined. Ibid. When the justice shall accept of the return of an attachment from the constable, and it shall appear to him that any cattle or other chattels necessary to be main- tained at expense, or any perishable goods, have been attached, it shall be lawful for the justice to order sale of them to be made by the freeholders, within ten days} of which public notice shall be given, at least six days before the sale thereof, by advertisements to be set up'at the most public places near the place of sale. And the money arising therefrom shall be lodged in the hands of the freeholders, to be attached or distributed among the creditors, in the manner directed and ap- pointed by the act. Ibid. Perishable goods are such as are liable to perish before-the term arrives at which the trustees are authorized to sell. Wines and liquors are not such perishable goods. 4 Am. L. J. 355, But ashallop was ordered to be sold as a perishable commodity. 1 D. 379. If no debt exceeding one hundred dollars shall appear to be due from the de- fendant, then the goods, chattels and other effects in the hands of the freeholders shall be brought to an appraisement, but not sold, (except changeable or perishable goods,) until the expiration of three months from the granting of the attachment, to the end that the debtor may have time to redeem them, if he see fit. But if, after the expiration of three months, the debtor shall not appear and redeem them, on notice thereof being given to the justice, he shall forthwith order and direct the said freeholders to make sale thereof; and out of the money arising therefrom, and all other money then in their hands, arising from any part of the 160 ATTACHMENTS. defendant’s estate, (reasonable charges first deducted,) to make payment to the cre- ditors, who shall appear and make proof of their debts within the said three months, - in proportion to their respective debts, and the overplus, if any, to be returned to the owners. But before any such sale is made, the freeholders shall give at least ten days’ notice thereof, by advertising in the most public places the time and place of such sale. Purd. 358-9. The freeholders, within six days after making sale and distribution, shall render a true account of their proceedings to the justice who granted the attachment, to be by him kept as a record of their proceedings therein. Purd. 359. Justices of the peace and aldermen have like power with the courts of common pleas, to dissolve writs of attachment in cases within their jurisdiction, and upon the same proofs; provided application be made for that purpose within twenty days after the return of the writ. Ibid. A domestic attachment may-be dissolved on application of the defendant, sup- ported by affidavit, denying the allegations upon which the attachment was founded, and the justice being satisfied that the defendant was not liable to the attachment. Purd. 355. It is sufficient to give notice of such application to the attaching creditor. Notice to all the creditors is not required. The parties who have issued the process are bound to support it, when attached. Ibid. 2 Y. 277. The dissolution of an attachment will not have the effect of invalidating any sale made by the trustees, or of any payments to them. Purd. 355. II. OatTH OR AFFIRMATION PREVIOUSLY TO GRANTING AN ATTACHMENT. J. D. vs. Attachment not exceeding $100. R.R DAUPHIN COUNTY, si. J. D., of the township of S——, in the county of Dauphin, yeoman, upon his solemn affirmation doth declare, that R. R., of the same township, 1s indebted to him in a sum not exceeding one hundred dollars, and that the said R. R. has absconded from the place of his usual abode in this state, with design to defraud his creditors, as is believed, and that the said R. R. has not left a clear fee-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 1st 1859, before me, J. R., Justice of the Peace. DoMESTIO ATTACHMENT. DAUPHIN COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S—, in the County of Dauphin: We command you, that you attach R. R., of the township of S———, in the county afore- said, by all and singular his goods and chattels or effects, in whose hands or possession soever the same may be found within this county, so that he appears before J. 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. p. 1859. J. R., Justice of the Peace. [seat.] Constable's return.—Attached one feather bed and bedding, one cow, one barrel of cider, six Windsor chairs, one iron tea-kettle, two iron pots and one tub. Attached the same in the hands of David White, of Swatara township, tailor. So answers L. M., Constable of Swatara township. Or if the constable cannot find property of the defendant, he may return, “ The defend- ant has no goods and chattels within the county whereby he can be attached.’ So answers, &c. APPOINTMENT OF FREEHOLDERS. DAUPHIN COUNTY, ss. To R. 8. and D. ©., 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 ba ATTACHMENTS. 161 accountable, until the same shall be disposed of according to law. Given under my hand and seal at S—— township aforesaid, the 7th day of May, a. p. 1859. J. R., Justice of the Peace. [srau.] SUMMONS AGAINST THE GARNISHEE. DAUPHIN COUNTY, ss. ; The Commonwealth of Pennsylvania, To the Constable of the township of S——, in the County of Dauphin, greeting: Wuersas, J. D., of the township aforesaid, yeoman, upon the first day of May inst., obtained an attachment from J. R., one of our justices of the peace in and for the county aforesaid, directed to you, wherein you were commanded to attach R. R., of the said township, by all and singular his goods and chattels, or other effects, in whose hands or possession soever the same might be found within this county, to answer the said J. D, of a plea of debt not exceeding one hundred dollars. And whereas, in pursuance of the said attachment, you, the said constable, did make return to the said justice, that you had attached sundry goods and effects of the said R. R. in the hands of D. W., of the town-, ship aforesaid, according to a schedule of the same goods and effects annexed to the said attachment. These are, therefore, to command you to summon the said D. W. to appear before the said J. R., at his office, in the township aforesaid, on the seventh day of May inst., at two o’clock in the afternoon of that day, to show cause, if any he hath, why he should not yield up the goods and effects, attached as aforesaid, in his hands for the use of the creditors of the said R. R. Hereof fail not. Witness the said J. R., at S—— town- ship aforesaid, the 2d day of May, a. p. 1859. J. R., Justice of the Peace. [szat.] “ Served on the within-named D. W., by producing to him the pogia! summons, and informing him of the contents thereof.” . M., Constable. NotTIcE TO THE CREDITORS. Wuerzas, in pursuance of an Act of General Assembly of the commonwealth of Penn- sylvania, an attachment hath heen granted by the subscriber, one of the justices of the peace in and for the said county of Dauphin, at the instance of a certain J. D., of S—— township, in the county of Dauphin, against a certain R. R., of the township of S ,in the county aforesaid, whereon certain goods and chattels and effects of the said R. R. have been attached and are now in the custody of R. S. and D. 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 1859, 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. [sEau.] ORDER TO FREEHOLDERS TO SELL CHANGEABLE AND PERISHABLE GOODS. DAUPHIN COUNTY, ss. To R. S. and D. C., of § township, greeting: : Wuerzas, among other articles attached as the property of R. R., late of S—— town- ship, in the county of Dauphin, and now remaining in your custody, until further orders, there are one cow, and a barrel of cider, the former of which must necessarily be main- tained at expense, and both are liable to perish. You are, therefore, hereby required to make sale of the said cow and barrel of cider within ten days from this date, first giving public notice thereof at least six days before the sale by advertisements, to be set up at the most public places near the place of sale. Given under my hand and seal at S—— township aforesaid, the 10th day of May, a. p. 1859. J.R., Justice of the Peace. [szan.] ForM OF APPRAISEMENT. AN appraisement of the several goods and chattels attached at the suit of J. D. as the property of R. R., late of S—— township, in the county of Dauphin, cordwainer, by vir- tue of the warrant of J. R., Esq., one of the justices of the peace in and for the county of Dauphin, viz.: S One feather bed and bedding, valued at =. + «+ «+ « §830.00 One brindled cow fom gO oe eee 25.00 Six Windsor chairs . . . . oe er wk 18200 One iron tea-kettle . es Ss ee ew ee 100 Twoironpots . . . « - s « @ » » “140 One tub : 7 . . . . . o. eG 50 ° One barrel of cider . «© «© + soa @ os 3 2.00 June Ist, a. p. 1859. . Appraised by us, J. G. and T. B., Appraisers. 11 162 _ ATTACHMENTS. , GENERAL ORDER TO FREEHOLDERS TO SELL. DAUPHIN COUNTY, ss. To R. S. and D. C., of S—— township, greeting: Wuerzas, three months are expired ane the goods, chattels and effects of R. R, late of the township of S—— aforesaid, were atiached, and notice hath been given to me that the said R. R. hath not ee to redeem the said eee You are, therefore, hereby required and directed to mnake 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. Rs estate arising, reasonable charges first deducted, you are to make payment to the creditors of the said R. R., who shall have appeared and made proof of their 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 within six days next after making sale and distribution, as aforesaid, you are to render a true account of your proseedings to me. Given under my hand and seal at S— township aforesaid, the 20th day of August, a. p. 1859. ‘ J. B., Justice of the Peace. [szau.] ADVERTISEMENT OF SALE. Punic novice is hereby given, that by virtue of an order from J. R., one of the justices. of the peace in and for the county of Dauphin, will be exposed to public sale, on Monday the 12th day of September next, at ten o’clock in the forenoon, at the house of W. M., innkeeper, 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 R. 8. } Freeholders duly September Ist 1859. D.C.f appointed, &. Attachment against absent and fraudulent Debtors. I, Attachments against non-resident debt- VII. Form of plaintiff’s affidavit. ors. VIII. Form of plaintiff's bond. IL. Attachments against fraudulent debt- IX. Form of attachment. ors. X. Forthcoming bond. III. Of the plaintiff’s bond. XI. Affidavit to open judgment. IV. Service of the attachment. XII. Notice of rehearing. V. Proceedings before the justice. XIII. Form of docket entry. VI. Of the lien of the attachment. I. ATTACHMENTS AGAINST NON-RESIDENT DEBTORS. 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. public officer, or for official misconduct,] and the defendant shall reside out of !the county, he shall be proceeded against by summons, or attachment, return- able 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. Act 12 July 1842, § 26. Purd. 598. This section does not authorize justices of the peace to issue attachments against the property of persons not residing within the state. 1 H. 128. See 4 Comst. 384, In order to sustain an attachment against a debtor not a resident of the same county with the creditor, the applicant must give bond as directed by the 27th section of the act. 4 Comst. 254. Contra, 15 Wend. 479. 23 Wend. 336. IJ. ATTACHMENTS AGAINST FRAUDULENT DEBTORS. It shall be the duty of any alderman or justice of the peace to issue an attach- ment against any defendant, on the application of the plaintiff, in any case, where, by the provisions of this act, no capias can issue, upon proof, by the affidavit of the plaintiff, or some other person or persons, to the satisfaction of the alderman or justice, that the defendant is about to remove from the county any of his pro- ATTACHMENTS. 163 perty with intent to defraud his creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete any of his property, with the like fraudu- lent intent, which affidavit shall also specify the amount of the plaintiff’s daim, or the balance thereof, over and above all discounts which the defendant may have against him. Act 12 July 1842, § 27. Purd. 598. - The plaintiff’s affidavit must state with precision one or more of the causes for issuing the attachment, mentioned in this section ; if several causes, as, for instance, that the defendant has assigned or secreted his property, with the intent mentioned in the act, are set forth in the alternative, the affidavit will be insufficient. 3 P. L. J.307. 1M. 75. 3 W. 144. 4 Comst. 385. Contra, 1 Kern. 339. The court of common pleas of Philadelphia county have decided, that a defend- ant against whom an attachment has been issued, under the act of 1842, may traverse (or deny) the cause for issuing the writ, set forth in the plaintiff’s affi- davit. The proper mode of so doing is by a plea in abatement. McKinty v. Shore. Whether the defendant was about to remove his property, is matter in abatement, to be pleaded. 7 Humph. 465. The truth of the facts on which an attachment is founded, can be investigated only on.a plea in abatement, and not on a motion. 10 Missouri 350. 6 Ala. 139. An attachment, if sufficient on its face, is a justi- fication to the officer serving it, although, in fact, issued on an insufficient affidavit. 11 H. 189. 1 Barb. 552. 24 Wend. 485. Irregularity:in the affidavit and bond to support an attachment, should be taken advantage of by motion to quash the attachment. 1 Morris 54. And although the affidavit made, and bond executed by the plaintiff to found an attachment, be defective, the defendant waives the irregularity by appearing and confessing judg- ment. 3 P. L. J. 307. ' An affidavit to found an attachment set forth “that the said defendants were about to remove their property from this state to the injury of the plaintiff: this fact was traversed by plea in abatement, and under this issue; the defendants offered to prove that one of them had sufficient unincumbered personal property in the state to discharge the plaintiff’s demand. The evidence was objected to and excluded by the court: held, that the court erred in excluding the evidence. 5 ..Gilman 21. To sustain an attachment on the ground that the debtor “is about to remove his property from this state to the injury of such creditor,” two things must concur : first, the debtor must be about to remove his property from the state; and secondly, such removal, if effected, must be to the injury of the creditor. The single fact that he is about to remove his property from the state will not justify a creditor in seizing it by attachment. Ibid. | III. OF THE PLAINTIFF'S BOND. Provided, 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, 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. Act 12 July 1842, § 27 Purd. 598. There must be at least two sureties to the bond, besides the plaintiff; wherever an act of assembly speaks of sureties in the plural, a single surety, however respon- sible, will not satisfy the requirements of the law. 4 R. 32. 4 W. 21. 7 C. 522. But see 8 W. 223. No one but the defendant can take advantage of a defect in the bond. 11 H. 189. ; In a proceeding by attachment, under this section, where the justice entered a nonsuit because a copy had not been served on the defendant, the bond given by the plaintiff is binding on his sureties, even though the clause as to failure in the action, has been omitted in it. Such bond is not void against a surety merely because the penalty to a small extent exceeds double the amount of the plaintiff's claim. Nor is it necessary to pursue the principal in such bond, before having re- course to the sureties. 2 H. 413. 164 - ATTACHMENTS. a IV-*SERVICE OF THE ATTACHMENT. Every such attachment shall be made returnable not less than two, nor more than four days from the date thereof, and shall be served by the constable to whom the same shall be directed by attaching so much of the defendant’s property not exempt by law from sale upon execution, as will be sufficient to pay the debt demanded, and by delivering to him a copy of the said attachment and an inventory of the property , attached, if he can be found in the county, and if not so found, then by leaving a copy of the same at his place of residence, with some adult member of his family, or of the family where he shall reside; or if he be a non-resident of the county, and cannot be found, then by leaving a copy of said attachment and inyentory with the person in whose possession the said property may be. Act 12 July 1842, § 28. Purd. 598. An attachment under this act, unlike an attachment in execution, can only be levied on personal chattels, which can be taken into the manual custody of the con- stable, and not upon debts due the defendant, or rights in action. 80.452. Goods attached are in the custody of the law, and cannot be distrained for rent. 4 W. & S. 3844. Nor can they be taken in execution by process issued by another justice ; a sale under such process would be void, and pass no title to the property. 1 Gr. 172. But where a tenant’s goods are attached and removed from the premises by the constable, the landlord is entitled to his rent out of the proceeds of sale. 6 W. & 8. 333. 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 Jouhle the amount of the claim, conditioned that in the event of the plaintiff recovering judgment against him, he will pay the debt and costs, at the expiration of the stay of execution given by law to freeholders ; or that he will surrender up the property attached to any officer having an execution against him on any such attachment. Act 12 July 1842, § 29. Purd. 598. In a suit by attachment prosecuted against two persons, as joint debtors, the justice has no right to proceed and render judgment, where the return of the con- stable only shows a service of the attachment on one of the defendants, but is silent as to service on the other, and where the defect is not cured by an appearance. 2 Comst. 110. In all cases where an attachment is issued by a justice, it is the duty of the constable to attach the goods of the defendant, make an inventory of the pro- perty seized, and serve a copy of the attachment and inventory on the defendant personally, if he can be found in the county. If he cannot be found in the county, the copy must be left at his last place of residence; or if he have no place of resi- dence in the county, with the person in whose possession the goods are found: and the return of the officer must “state specifically whether such copy was or was not personally served upon the defendant.” Ibid. 112. V. PRocEEDINGS BEFORE THE JUSTICE. If such attachment shall be returned personally served upon the defendant, at least two days before the return day thereof, the alderman or justice shall, on the return day, proceed to hear and determine the same, in the same manner as upon a summons returned personally served; butif the same shall not have been so served, the alderman or justice shall issue a summons against the defendant, returnable as summonses issued by justices of the peace are now by law returnable; and if the said summons shall be returned personally served, or by leaving a copy at the resi- dence of the defendant, or that the defendant, after diligent inquiry, cannot be found in the county, then in either case the alderman or justice of the peace shall proceed to hear and determine the cause, in the same manner as upon a summons personally served. Act 12 July 1842, § 80. Purd. 598. 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 _ tendering the same for a hearing of the matter, and if he, or some other person 9 ATTACHMENTS. 165 knowing the facts, shall, for him, make an affidavit, setting forth that he has a just defence to the whole or part of the plaintiff’s demand, it shall be the duty of the alderman or justice to open the judgment, and give notice to the plain- tiff 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. Ibid. § 31. . The privilege of a rehearing given by this section does not apply to actions originally commenced by summons. 1 Phila. R. 515. 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 indebted- ness, in any scire facias that may be brought thereon, and may be disproved by the defendant; and no execution issued upon such judgment shall be levied upon any other property than such as was seized under the attachment, nor shall any defend- - ant, in such case, be barred of any set-off which he may have against the plaintiff. Act 12 July 1842, § 82. Purd. 599. The defendant in a suit commenced by attachment, under this act, is entitled to the benefit of the $300 exemption law, if the judgment be founded on a contract. 18 Leg. Int. 68. This act shall not be construed to extend the jurisdiction of justices of the peace and aldermen to demands above one hundred dollars, and the same right which is given to the parties respectively, to appeal from the decision of an alderman or justice of the peace, by the act of the twentieth day of March, one thousand 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 full force, and to apply to the provisions of this act, so far as the same relates to proceedings before aldermen or justices of the peace, and to the powers ‘of the courts of record over the proceedings of justices of the peace. Act 12 July 1842, § 84. Purd. 599. ‘ VI. OF THE LIEN OF THE ATTACHMENT. No attachment hereafter issued by any alderman or justice of the peace of this commonwealth, in pursuance of the twenty-seventh section of the act, entitled “An act to abolish imprisonment for debt and to punish fraudulent debtors,” approved the 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 sixty days, from and after the time when the plaintiff might legally have had execu- tion 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 the period of sixty days after final judgment. Act 22 March 1850, § 1 Purd. 599. 4 If the defendant, in case of an appeal, desire to relieve his goods from the lien of the attachment, he must, in addition to the usual bail on appeal, also give a bond, under the 29th section of the act, for the forthcoming of the property attached, to answer any execution in the case, after final judgment; in default of which, the goods will still remain in the custody of the officer. VII. Form oF PLAINTIFR’S AFFIDAVIT. COUNTY OF PERRY, ss. On this twentieth day of May 1859, before me the subscriber, one of the justices of the peace in and for the county of Perry, personally appears A. B.,qand being duly sworn + 166 ATTACHMENTS. saith, that O. D. is justly indebted to him in the sum of fifty dollars, for goods sold and delivered by this deponent to the said C. D., over and above all discounts which the said C. D, may have against him. And that the said C. D. is about to remove his personal peer viz., his household furniture, from this county, with intent to eae cre- ltors. . DB. Sworn and subscribed before me, the day and year aforesaid,+ , J. R., Justice of the Peace. , “The terms of the affidavit may be varied according to the circumstances of the case, by stating that the defendant has assigned and disposed of, or that he has secreted his property, with intent to defraud his creditors, or that he is about to do either of these acts, with the like fraudulent intent; but care must be taken not to state more than one cause for the attachment in the alternative, or the proceedings will be set aside on certiorari. If the defendant has been guilty of more than one of the acts mentioned, they should both be distinctly set forth in the conjunctive. 3 P.L. J. 307. 1M. 75. 3 W. 144. ' VIII. Form oF PLAINTIFF’S BOND. Kwow Att MEN by these presents, that we, A. B., E. F., and G. H., all of the county of Perry, are held and firmly bound unto C. D., of the same county, in the sum of one hundred dollars, lawful money of the United States of America, to be paid to the said C. D., his certain attorney, executors, administrators or assigns, to which payment well and truly to be made, we, and each of us, do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated the twentieth day of May, Anno Domini, ongthousand eight hundred and fifty-nine. Whereas the said A. B. hath this day made application to J. R., Esquire, one of the justices of the peace in and for the county of Perry, for an attach- ment against the said C. D., to recover the sum of fifty dollars, alleged to be due and owing to the said A. B. by the said C. D. Now the condition of this obligation is such, that if the said A. B, shall fail to recover a judgment against the said C. D. of at least one-half the amount of his said claim, and the said A. B. shall pay to the said C. D., his executors, administrators or assigns, alll damages that shall ee for the wrongful taking of any property over and above an amount sufficient to satisfy the judgment and costs, in the azid suit of attachment; or if the said A. B. shall fail in his: action, and shall pay to the said C. D. his legal costs and all damages which he may sustain by reason of said attachment, then this obligation to be void, otherwise to be and remain in full force and virtue. . ' Sealed and delivered in the presence of A. B. [suat. e, R., Justice of the Peace. E.F. [sean. G. H. [szan. TX. Form oF ATTACHMENT. PERRY COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of E— Township, or to the next Constable of the said County most convenient to the defendant, greeting: WE comMAND you that you attach C. D. by all and singular his goods and chattels, in whose hands or possession soever the same may be found within the ‘said county of Perry,so. that he be and appear on the twenty-fourth day. of May,.a. p. 1859, at ten o’clo¢k in the forenoon, before J. R., one of our justices of the peace in and for the said county; to answer A. B, in a plea of debt or demand, arising from contract either express or implied, wherein the said plaintiff: claims the sum of fifty dollars. Witness our said justice, who hath hereunto subscribed his name, and affixed his seal, the twentieth day ,of May, in the year of our Lord one thousand eight hundred and fifty-nine. ° ¢ J. B., Justice of the Peace. [seau.] The attachment must be served by the constable, by taking actual possession of the defendant’s goods, unless a forthcoming bond be given, and by delivering to the defendant, or leaving at his residence with an adult member of his family, or if he be a non-resident and cannot be found, with the person in whose possession the pro- perty may be found, a copy of the attachment, and also an inventory of the goods attached ; all which must be specifically stated in his return, or the progeedings will be liable to reversal on’ certiorari. ATTACHMENTS. 167 Return of the Constable.—By virtue of the within attachment, on the 20th day of May, 1859, I attached one sofa, one bureau, and twolve mahogany chairs, of the defendant, to whom I delivered a true copy of the said tlgshsiont and an inventory of the goods attached. I also return, that the defendant has given bond (hereunto annexed) for the -. forthcoming of the said goods to answer any execution in this suit. ss ‘ 8. S., Constable. » X. FoRTHCOMING BOND. KNow AL MEN by these presents, that we, C. D. and Y. Z., are held and firmly bound unto A. B. in the sum of one hundred dollars, lawful money of the United States of America, to be paid to the said A. B., his‘ certain attorney, executors, administrators or assigns; to which payment well and truly to be zRade, we, and each of us, do bind our- ‘selves, and each of us, our and each of our heirs, executors and administrators, firmly by ‘these presents. Sealed with our seals, dated the 20th day of May 1859. "Whereas, S. S., constable of E—— township, in the county of Perry, by virtue of a writ of attachment issued by J. R., Esquire, one of the justices of t¥8*peace in and for the said county, at the suit of the said A. B. against the said C. D3 for the sum of fifty dollars claimed by the said A. B., has attached one sofa, one bureau, and twelve mahogany chairs, of the said C. D. Now the condition of this obligation is such, that if in the event of the said ‘A. B. recovering judgment against the said FR. in the said attachment suit, he, the said C. D., shall pay the amount of the said judgthent with interest and costs, at the expira- ‘tion of the stay of execution given by law to olders; or if he shall surrender up the said property attached, to ang. of§cer having an execution against him on such attach- ment, then this.cbligation to be void, or else to be and remain in full force and virtue. Sealed Aiijecivéred in the presence of C.D. {sean. S. S., Constable. Y.Z. [smau. One surety is sufficient to this bond. If the attachm e not served personally on the defendant, the magistrate is required tajssue.tmmons against him, in the usual form; and if the summons ke returfigd“Without having been personally served, although the justice may progéed to“pive’judgment, and issue execution against the goods at - yee toendans, im such case, apply for a rehear- ing, within thirty daypy arid an affidavit be made that he has a just defence to the whole or part of fhe claim, it is the duty of the justice to open the judgment, and ive notice to the plaintiff of the time when he will hear the parties, not less than our, nor more than eight days distant. XI. AFFIDAVIT TO OPEN JUDGMENT. A. B. vs. } Before Justice J. R. Cc. D. C. D., the above-named defendant, being duly sworn, saith that he has a just defence to the whole of the plaintiff’s claim in this case. Cc. D. Sworn and subseribed before me, this 10th day of June, a. p. 1859. J. R., Justice of the Peace. XII. Notick oF REHEARING. A. B. vs. } Before Justice J. R. a Cc. Dz C. D., the ‘above-named defendant, having appeared before me this tenth day of June, A. D. 1859, and made oath that he has & just defence to the whole of the plaintiff’s claim, I have opened the judgment rendered against him, according to the provisions of the Act of Assembly in such case made and provided, and have appointed the 15th day of June 1859, at ten o’clock in the forenoon, to hear the said parties, at which time you are hereby required to appear before me, and make proof of your claim against the said defendant. Witness my hand and seal, this 10th day of June, a. p. 1859. J. R., Justice of the Peace. [szaz.] To A. B., Plaintiff above named. 168 ADAM BROWN vs. CHARLES DAVIS. costs. Justice. Plaintiff's oath Attachment Entering action . . Ret. and oath of const. . Summons ie eat oe Ret. and oath of const. . eth. . +o « 2 = Investigating plff.’s claim and ing jugs. sd entering ju Execution 3 Defendant's oath Opening judgment . Supersedeas . . Return of execution Notice . ‘Two oaths ee oa Trial and judgment . Justifying bail (1 oath) « Entering bail . Receiving and paying over . Satisfaction Constable. Serving attachment Mileage . s Serving summon Mileage . - ‘ Serving execution . Mileage . . Serving notice . ileage ATTACHMENT IN EXECUTION. XIII. Form of DOCKET ENTRY. Crvit surr.—May 20th 1859, plaintiff appears and makes affidavit that the defendant is justly indebted to him in the sum of $50, for goods sold and delivered, over and above all discounts, &c., and that the defendant is about to remove his personal roperty from the county, with intent to defraud his creditors. Genie day, bond filed and attachment issued, returnable the 24th inst., at 10 a. uw. S. S., constable, returned on oath, “ Attached defendant’s goods, and served copy and inventory on J. K., the person in whose possession the same were found, defendant being a non-resident and not found within the county.” May 24th 1859, summons issued, returnable the 29th inst., at 10 a.m. 8. S., constable, returned on oath, “ Defend- ant, after diligent inquiry, cannot be found in the county.” May 29th 1859, plaintiff appears and claims $50 for goods sold and delivered to defendant. Defendant does not appear. T. 8. sworn for plaintiff. After hearing, judgment publicly for laintiff, for $50 and costs. Same day, execution issued. S. . constable. June 10th 1859, defendant appears and makes oath that he has a just defence to the whole of plaintiff’s claim, Judgment opened and execution superseded, and notice issued to plaintiff to appear on the 15th inst., at 10 a. mu. S., con- stable, returned on oath, “Served on plaintiff personally.” June 15th 1859, parties appear. TT. S. sworn for plaintiff. R. M. sworn for defendant. After hearing, judgment publicly for laintiff, for $50 and costs. Same day, defendant enters bail or stay of execution. Bail justified. I am held in $100, con- ditioned for the payment of this judgment, in the event that the defendant fail to pay the same at the expiration of six months from the rendition thereof. ‘ (Signed) 8. E. Dec. 10th 1859, money paid into office by defendant. Received satisfaction. (Signed) Apam Brown. —$—— Attachment in Execution. I, Acts regulating attachments in execu- tion. If. What may be attached in execution. III. Proceedings on attachments in execu-. tion. IV. Attachment to levy debts. VI. VIL. VIII. Ix. X. XI. Recognisance. Interrogatories to garnishee. Rule on garnishee to answer. Answers of garnishee. Execution against garnishee. Docket entry. V. Affidavit to levy stock. I. Act or 16 June 1836. Purd. 434. Scr. 32. The proceedings to levy an execution upon stock, debts and deposits of money belonging or due to the defendant, shall be as follows, to wit: In the case of stock, if it shall be held in another name(a) than that of the real owner thereof, the plaintiff shall file in the office of the prothonotary of the court [or justice], an affidavit, stating that he verily believes such stock to be really the property of the defendant, and shall enter into a recognisance with two sufficient sureties, conditioned for the payment of such damages, as the court [or justice] may adjudge to the party to whom such stock shall really belong, in case such stock should not be the property of the defendant.(6) (2) Where the defendant holds stock in his own name the proceedings must be under the act 29 March 1819, 32 (Purd. 486), which provides that such stock shall be liable to be taken in execution and sold, in the same mann>r as other goods and chattels, subject to any debt due by the defendant to the com- pany. 4H. 295. (2) The third section of the act of 29 March 1819, which has been partially supplied by the acts in the text, but which may be useful in construing the laws now in force, provided ATTACHMENT IN EXECUTION. 169 Szot. 33. Upon the filing of such an affidavit and recognisance, it shall be lawful for the prothonotary [or justice] to issue process, in the nature of an attach- ment, against such stock, with a clause of summons to the person in whose name the same may be held, in the nature of a writ of scire facias against garnishees in a foreign attachment, and thereupon the plaintiff may proceed to judgment, execution and sale of the said stock, in the manner allowed in cases of foreign attachment against personal estate. Sror. 84. The like proceedings may be had against stock owned by a defend- ant, and held in his own name, without the affidavit and recognisance afore- said; and if any person shall claim to be the owner of such stock, he may, upon filing an affidavit that the stock is really his property, and entering into a recogni- sance with two sufficient sureties, conditioned for the payment of such damages ag the court [or justice] may adjudge to the plaintiff, if such stock should really belong to the defendant; the court [or justice] shall admit him to become a party upon the record, and take defence, in like manner as if he was made garnishee in the writ. Srcr. 85. In the case of a debt due to the defendant, or of a deposit of money“made by him, or of goods or chattels pawned, pledged or demised as afore- said, the same may be attached and levied in satisfaction of the judgment in the: manner allowed in the case of a foreign attachment, but in such case, a clause in the nature of a scire facias against a garnishee in a foreign attachment, shall be inserted in such writ of attachment, requiring such debtor, depositary, bailee, pawnee, or person holding the demise as aforesaid, to appear at the next term of the court, or at such other time as the court [or justice] from which such process may issue shall appoint, and show cause why such judgment shall not be levied of the effects of the defendant in his hands. Seor. 36. It shall be the duty of the officer charged with the execution of such writ, to serve a copy thereof upon the defendant in such judgment,(a) and , upon every person and corporation within his proper county named in the said writ of attachment, in the manner provided for the service of a writ-of summons in a personal action. ‘ Scr. 37. From and after.the service of such writ, all stock belonging to the defendant in the corporation upon which service shall be so made, and all debts and deposits of money, and all other effects belonging or due to defendant by the person or corporation upon which service as follows: ‘‘ Whereas, it sometimes happens that the stock of such bodies corporate is held in another name or names, than those of the real owner or owners thereof, and it is just that stock so held should be made liable for the debt of the real owner or owners; there- fore,—Whenever any plaintiff or creditor shall file an affidavit with the prothonotary of the court, alderman or magistrate, in which or before whom such plaintiff or creditor has instituted, or is about to institute a suit, stating that b> verily believes such stock to be really and bona fide the property of the debtor against whom such suit has been, or is about to be brought, and also shall enter into a recognisance with two sufficient sureties con- ditioned for the payment of such damages, as such court, alderman or magistrate, may ad- judge to the party or parties to whom such stock shall really belong, in case such stock should not be the property of such debtor; it shall and may be lawful for such court, alder- man or magistrate, to cause to be issued pro- cess in the nature of a foreign attachment against such stock, and to summon as gar- nishee the person or persons in whose name or names the same shall be held, and proceed against the said stock and such garnishee, in all respects mn the same manner as by the shall be made, shall remain attached in laws of this commonwealth proceedings now are or hereafter may be prescribed in cases of foreign attachments against personal estate ; and upon judgment being had in favor of the plaintiff in any such suit, execution may issue immediately for the sale of such stock in the same manner that goods and chattels are sold on writs of jieri facias : Provided, that in case of a judgment before a justice of the peace or alderman, where the amount in con- troversy shall exceed five dollars and thirty- three cents, an appeal shall be allowed to the court of common pleas, agreeably to the same rules and regulations now or hereafter to be prescribed for granting appeals in other cases cognisable before a justice of the peace.” Purd. 486. It will be perceived that this act enables a creditor to attach stock held.in the name of another person than the real owner, not only where he has obtained a judgment, but also by original process of attachment, where he is about to institute a suit against the defendant, on making: the affidavit, and giving the security therein provided. (a) By the subsequent act of 20 March 1845 (Purd. 486), service on the defendant is dis- pensed with where he resides out of the county, or service cannot be effected on him by the officer within his bailiwick 170 ATTACHMENT IN EXECUTION. the hands of such corporation or person, in the manner heretofore practised and allowed in the case of foreign attachment. : Scr. 38. If judgment shall be given for the plaintiff in such attachment, it shall be lawful for him to have execution thereof as follows, to wit: : If the property attached be stock in a corporation as aforesaid, the execution shall be by a writ of fierd facias, [the common execution issued by justices,] against the original defendant, by virtue of which such stock, or so much thereof as shall be necessary to satisfy the judgment and costs, may be sold by the sheriff [or constable], as in other cases. . If the property attached be a deposit in money or a debt due as aforesaid, execu- tion shall be had in the manner allowed in the case of effects in the hands of a garnishee in a foreign attachment.(a) Act 13 Aprit' 1843. Purd. 435. Secr. 10. All legacies given [and lands devised] to any person or persons, and any interest which any person or persons may have in [real or] personal estate of any decedent by will or otherwise, which are subject to foreign attachment by the act of twenty-seventh of July, one thousand eight hundred and forty-two, entitled “« An act to enable creditors to attach legacies and property in the hands of execu- tors and administrators, and for other purposes,”’ (6) 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 thirty-second section of the act of sixteenth June, eighteen hundred and thirty-six, entitled “An act relating to executions ;” Provided, That the plaintiff in said judgment shall tender to the garnishee or gar- nishees, if he or they be executors or administrators, a bond with sufficient security, as is provided by.the second section of the said act of twenty-seventh of July, eighteen hundred and forty-two:(c) and the same rights in all respects which the debtor may have, and no greater in any.respect whatever, are hereby placed within the power of the attaching creditor. [See Act of 10th April 1849.] Act 20 Marcu 1845. Purd. 436. Szor. 4. So much of the act of assembly passed 16th day of June 1836, entitled “An act relating to executions,” as provides for the levy and recovery of stock, .deposits, and debts due to defendants by process of attachment and scire facias, is hereby extended to all cases of attachments to be issued upon judgments against corporations (other than municipal corporations),(d@) and from and after the pas- sage of this act all such process which hereafter may be issued, may be proceeded unto final judgment and execution, in the same manner and under the same rules and regulations as are directed against corporations by the provisions of the act of 16th June 1836, relating to executions; (e) and so much of the 86th section of the (a) The.59th and 60th sections of the act of 13 June 1836 (Purd. 436), provide that in case of foreign attachment, ‘ after.a verdict for the plaintiff in any scire facias, as aforesaid, it shall be lawful for him to have execution of his judgment in the attachment, to be levied of the goods and effects so found in the hands or pogsession of the garnishee, or of so much of them as shall be sufficient to satisfy his demand, with legal costs of suit and charges, as aforesaid. The plaintiff may also at the same time have execution against the garnishee upon the judgment obtained against him on a scire facias, a8 in the case of a judg- ment against him for his proper debt to be executed if the garnishee shall neglect or refuse, upon the lawful demand of the pro- per officers, to produce and deliver the goods and effects of the defendant, as aforesaid, or to pay the debt or duty attached, if the same shall be due and payable.” - (4) Purd, 492, This act contains a proviso, that its provisions ‘shall not extend to lega- cies and distributive shares of married women,” which are likewise protected by the act of 11 April 1848. Purd. 699. (c) Purd. 492. This act provides that a bond shall be given with sufficient security, to be approved by the court, in double the amount to be received from such garnishee. with like conditions as are prescribed in the 41st section of the act of 24 February 1834 (Purd. 802), to wit: that if any debt or de- mand shall afterwards be recovered against the estate of the decedent, or otherwise be duly made to appear, he will refund the rate- able part of such debt or demand, and of the costs and charges attending the recovery of the same.” a) See 8 Pittsburgh Leg. J. 92. e) The 72d section of this act (Purd. 199) directs that ‘all executions which shall be issued, from any court of record, against any corporation not bing a county, township or other public corporate body, shall command the sheriff or other officer, to levy the sum recovered, together with the costs of suit, of the goods and chattels, lands and tenements ATTACHMENT IN EXECUTION. 171 act of 16th June 1836, as requires service of the attachment on any defendant, be and the same is hereby repealed, except where the defendant is a resident of the county in which the attachment issued. Act 15 Aprit 1845. Purd. 603. Secr. 1. The jurisdiction of aldermen and justices of the peace is hereby extended to the issuing, service, trial, judgment and execution of all process required by the 82d, 33d, 34th, 35th, 386th, 87th and 38th sections of the act relating to execu- tions, passed the 16th day of June 1836. Srcr. 2. Any alderman or justice of the peace, before whom any judgment remains unsatisfied, and an execution has been returned, “no goods,’”’ may, on the application of the plaintiff, and his compliance with the requisitions of the act to which this is a supplement, issue an attach{ent, in the nature of an execution, as therein provided, to levy upon stock, debts and deposits of money belonging or due to the defendant, in satisfaction of such judgment. Srcr. 8. The said writ of attachment may be issued, returnable not less than four, nor more than eight days, and shall be served, in the manner pointed out for the service of a summons, upon the debtor, depositary, bailee, pawnee, or other person having property of the defendant in his hands, made liable to attachment by the act to which this is a supplement; and on or before the return day of said writ, the plaintiff may file with the magistrate interrogatories in writing, addressed to the person summoned as garnishee, in regard to.the property and effects of the defendant alleged to be in his hands at the time of the service of said writ; a copy of the same, with a rule to answer, shall be served upon said garnishee personally, to answer, under oath or affirmation, all such interrogatories as the magistrate shall deem proper and pertinent, within eight days after the same shall be served. Szot. 4. If such garnishee shall neglect or refuse to answer said interroga- tories within eight days, (unless. for cause shown, the time has been extended,) he shall be adjudged to have in his possession property of the defendant equal in value to the demand of the said plaintiff; and judgment may be rendered by default against said garnishee for the amount of the same, with costs. Sxor. 5. If the said garnishee, in his answers, admit that there is in-his posses- sion or control, property of the defendant liable under said act to attachment, then said magistrate may enter judgment specially, to be levied out of the effects in the hands of the garnishee, or so much of the same as may be, necessary to pay the debt and costs: Provided however, That the wages of any laborer, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer. . Secr. 6. The plaintiff, the defendant or the garnishee in the attachment, may appeal from the judgment of the alderman or justice of the peace, to the next term of the court of common pleas, on complying with the provisions of the laws regulating appeals in other cases: Provided, That the fees allowed to justices and aldermen, and constables, under this act shall be the same as allowed by the general fee-bill for similar services in other cases. Act 10 Aprit 1849. Purd. 436. Szcr. 11. The 10th section of the act of 13th April, Anno Domini 1843, en- titled “An act to convey certain real estate, and for other purposes,” (providing that all legacies given, and lands devised to any person or persons, and any interest which any person or persons may have in the real or personal estate of any decedent by will or otherwise, which are subject to foreign attachment by the act of the 27th of July, Anno Domini 1842, entitled “An act to enable creditors to attach legacies and property in the hands of executors and administrators, and for other of such corporation.” It is confined by its moneys, rights and credits of the corporation terms to executions issued from a court of attached, in the hands of the garnishee, &c. record; an execution issued by a justice in an attachment in execution upon a judgment against a corporation should be in the usual form, and command the constable to levy the sum recovered of the goods and chattels, Under the act of 1845, the funds of an insol- vent canal company may be attached in the hands of their banker; and it is no defence that the banker is also a creditor of the cor poration. 12 C. 214. 172 ATTACHMENT IN EXECUTION. purposes,” shall be subject to be attached and levied upon in satisfaction of any judgment, in the same manner as debts due are made subject to execution by the 22d section of the act of 16th of June, Anno Domini 1836, entitled “ An act rela- tive to executions,”) shall be deemed to authorize the issuing and service of pro- cess in the nature of attachment, at any time after the interest which any person or persons may have in the real or personal estate of any decedent, shall have accrued by reason of the death of such decedent: Provided, That a sale of the aforesaid interest of the defendant in the proceeding by attachment, authorized by the aforesaid 10th section of [the act of] 18th of April, Anno Domini 1843, shall not be compelled by any process of execution, until a year shall have elapsed from the time when the interest aforesaid vested in the defendant, unless the executors or administrators of the decedent shall have sooner filed their account. In all cases when executors, administrators or trustees of the estates of decedents shall have been made garnishees in the process in the nature of attachment authorized by the 10th section of the act of 13th of April, Anno Domini 1843, entitled “An act to convey certain real estate, and for other purposes,” they shall be entitled to their costs, as well as the expenses necessarily incurred by them in attending to the pro- ceeding in which they may have been garnishees. II. WHAT MAY BE ATTACHED IN EXECUTION. Whenever a party has a right of action, his creditors may attach it, unless it be for wages. 12C. 28. Debts in suit, and unsatisfied judgments, may be attached. 2D. 277. 2M. 130. 1 Barr 880. Although the judgment’ were recovered in an- other state. 70.114. So may debts due in presenti, but payable in futuro. 2 D. 212. 5 H. 440. 6 H. 388. 1 T. & H. Pr. 756. A debt payable in city bonds. 19 Leg. Int. 37. A note deposited in pawn. 2 Barr 39. An overdue note in the hands of the maker. 1 T. & H. Pr. 755. And a note not matured. Ibid. 756. 6 H. 388. But such attachment will not avail against an indorsee without notice. 5 C. 186. So also, the proceeds of a fund in the hands of trustees may be attached. 12 C. 28. The proceeds of property in the hands of an assignee under a void assignment. 5 W. & 8.103. 5 Barr 39. 1 H. 307. 10 ©. 152. A loss incurred on a policy of insurance; 7 W. & 8. 76; 8 Ibid. 350; although the amount be unliquidated; 3 P. L. J. 299; 18 Leg. Int. 140; and the moiety of the cost of a party-wall; have all been held liable to attachment. 9 Barr 501. Soa debt due to a non-resident may be attached, if the debtor be within reach of our process. 6 C. 520. Money in the hands of an attorney at law may be attached for the debt of the client. 2 Barr 346. 1 H. 307. Serg. Attach. 98. And money in the hands of the debtor’s banker. 12 C. 214. But money levied by a sheriff or constable upon an execution cannot be attached. 2 W.& 8.400. 1 H.807. 2P.L. J. 199. 3 P. L. J. 62. Nor money in the hands of a prothonotary. 1D. 354. Or of a justice of the peace. 4 W. & S. 842. Nor money in the hands of a debtor of a decedent. 2D. 73. 6 P. L. J.192. 2 Phila. R. 101. Nor the surplus in the hands of a constable, after a sale under a distress for rent. Comfort v. Taylor, Com- mon Pleas, Phila. March T. 1848. But 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 ee were liable to attachment in the hands of the sheriff. 4 P. L. J. 239. o-also, if the defendant himself sell the property exempt. from execution, the money is liable to attachment in the hands of the purchaser; and so are the dam- ages recovered by him in an action of trespass for taking it in execution, for such recovery transfers the right of property and has the effect of a sale. 11 H. 489. But money awarded to a defendant, out of the proceeds of his real estate, under the exemption law, and paid over to his attorney by the sheriff, is not liable to be attached in the hands of the attorney. 7 ©. 329. The fees due a juror cannot be attached. 4 P. L. J. 226. Nor the salary of a public officer. 2 M. 330. Nor money held by the treasurer of a board of school directors. 3 Barr 368. Or by a supervisor of a state canal or railroad. 8 P. L. J. 201. 4 How. 20. Nor can a bequest to a wife be attached for the debt of the husband. “2 W. 90. 1 Wh. 179." Or damages recovered in the joint names of ATTACHMENT IN EXECUTION. 173 husband and wife, for an injury to the person of the wife, during coverture. 4 P. L. J. 406. Nor can a municipal corporation be made garnishee. 5 C.173. 1 T. & H. Pr. 756. Or a foreign corporation. 2 T. & H. Pr. 685. Nor can an attach- ment against a railroad company be levied on money in the hands of its ticket ‘agents, arising from the sale by them of tickets to passengers. 11 C. 22. 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. 1H. 228. The capital stock of a bank owned by itself, and in its own possession, whether acquired by purchase or otherwise, is not subject to an attachment in exe- cution, for a debt due by the bank. 10 W. 230. An attaching creditor stands in the shoes of the debtor; and any equities that could be set up against the latter, are equally available against the former. 10 C. 299. 6 H. 96. Thus, where a note has been assigned and transferred bond Jide in payment of a debt, before the service of an attachment, the assignee is en- titled to the money, and not the attaching creditor. 1 Barr 263. And after a bond Jide assignment of a judgment, it is not liable to be attached for the debt of the assignor. Bavington v. Alcock, District Court, Phila. Dec. T. 1848. A draft upon a particular fund in the hands of an attorney for collection, is an equitable assign- ment of it; and although not accepted by the attorney, yet it is not afterwards sub- ject to be attached for the debt of the drawer. 8 W.& 8.9. But where a check on a bank was not presented until several days after its date, and im 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. So, where the defendants drew bills on their factor for a larger amount than the balance in his hands, and the latter declined to accept, unless he were placed in funds, which was not done by the defendants, and an attachment was subsequently levied on the balance in the hands of the factor; it was held, that the attaching creditor was entitled to the fund to the exclusion of the holder of the bills. 2 P. L. J. 363. If the garnishee receive money of the debtor, after the service of the writ, it is bound by the attachment. 8 H. 412. 8 W. 420. An attachment in execution cannot be issued on a judgment against a anal corporation. 4 Barr 490. 3 Pittsburgh Leg. J. 92. Purd. 436. A partnership debt may be attached in the hands of the garnishee, for the private debt of one of the partners; and the garnishee will be compelled to pay over to the separate creditor the proportion of the indebted partner. 2 D. 277. 2 Y. 190. 5 Wh. 125. Under the acts of 1843 and 1849, the interest of any legatee or devisee in the estate of a decedent may be attached in the hands of the executors or administra- tors. 3 H. 103. 7 W. & 8. 376. 8 Pittsburgh Leg. J. 257. Orin the hands of a testamentary trustee. Matthews v. Park, Pitsborgh Leg. J., 28 May: 1853. 12 C. 28. Or of a purchaser of the real estate, under a sale made by the adminis- trator, he having filed an account prior to the sale showing a balance in favor of the © estate. 1 J. 361. 3H. 103. Such attachment may be laid on the fund, in whose hands or possession soever the same may be; as the executor’s agent who has received the defendant’s share of the proceeds of real estate. 6 H. 414. The attachment of a legacy in the hands of an executor, transfers the right to receive it to the attaching creditor, subject to the rights of the garnishee; if the legatee be indebted to the estate’ of the testator to an amount exceeding the legacy given to him, the executor has the same right to set off such indebtedness against the attach- ing ereditor, as he would have had against the legatee. 11 C.333. But the admin- istrator cannot set off a judgment held in his own right against the legatee. 8 Pittsburgh Leg. J. 257. The proviso to the 5th section of the act of 15th April 1845, exempting wages from attachment, is a general provision applicable to all judgments, whether entered in the common pleas, or on the docket of a justice. 5 C. 264. This proviso is intended to protect and secure to the laborer what is earned by his own hands, not the contracts of those who make profit out of the labor of others. 5 Barr 117. But the wages of a miner, who, by his own labor, mines coal at a certain price per ton, and employs a common laborer to assist him at sc much per day, are not attachable. a 174 , ATTACHMENT IN EXECUTION. 9 C. 241. And where, by agreement, the wages of a laborer are to pe credited as part payment on a parol contract for the sale of land, which is subsequently repu- diated by the vendor, they still remain the wages of labor, and as such are not liable to be attached. 12 C. 342. III. ProcEEDINGS ON ATTACHMENT IN EXECUTION. An attachment in execution may issue on a judgmentirecovered prior to the act of 1836. 7 Barr 482. Or on a judgment recovered more than five years before, with- out a scire factas: in the attachment, the defendant has a day in court, In which he can take any defence he could have made on ascire facias. 4 Barr 232. 5 Barr 115. 7 W.& 8.44. It is rightly instituted in the county where the garnishee resides. 7 W. & S. 482. ; 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 sheriff (or constable) to attach “the goods and chattels, rights, credits and moneys, of the defendant, in the hands of the garnishee. 6 Wh. 181. The debtor himself must be made the garnishee, not merely the person who holds the evidence of the debt. 1 C. 362. Nor one who has merely a lien on the property. 3 Phila. R. 219. Several garnishees may be joined in one writ. Ibid. 35. And a fraudulent grantee of chattels may be made garnishee. 2 Gr. 319. . An attachment, under the act of 1836, is process to enforce the judgment, and it is in substance, if not in form, an execution : it differs from a fiert factas essentially - only in this, that it reaches effects from which the debt could not otherwise be levied. Tt cannot issue on an award of arbitrators, till the twenty days allowed for an appeal, have expired. 1 H. 394. The defendant may claim the benefit of the exemption law, as against such writ. 2 Wr. 190. It is not exclusively a proceeding in rem, but is also a proceeding personally against the garnishee. 5 C. 396. 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. Minhinnick v. Long, Com. Pleas, Phila. Dec. T. 1847. A garnishee in an attachment in execu- tion 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 P. L. J. 87. Garnishees admitted in their answers,'that they held pro- perty 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 P. L. J. 112. 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. 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 against the garnishee. Farmers’ and Mechanics’ Bank v. Williams, Dist. Court, Phila. 24 March 1849. 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 H. 552. See 10 C. 299. 120.214. 1 Wr. 491. 2 Wr. 217. 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. Neel, Dist. Court, Allegheny, Dec. 1850. Where a judgment debt has been attached, the court will stay proceedings until the determination of the attach- ment suit. Paxson v. Sanderson, 1 T. & H. Pr. 761. 1 Phila. R. 177. If the garnishee in an attachment in execution make default, by not appearing after due service of the writ, judgment ought not to be given against him, to be levied of his goods and chattels, &c. The judgment ought to be, that the plaintiff have execution of so much of the debts, &., 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 con- stable], to pay the same, then the same to be levied of his, the earnishee’s anda ATTACHMENT IN EXECUTION. | 175 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 defend- ant, of the sum so attached and levied, &. 6 Wh. 181. See 2 Wr. 93. Debt not exceeding $100. A.B LYCOMING COUNTY, ss. Brrore mx, one of the justices of the peace in and for the county of Lycoming, per- sonally appeared E. F., the plaintiff above named, who, being duly sworn according to law, deposeth and saith that there are ten shares of stock of the Lehigh Bank, held in the name of R. §., of the city of Pittsburgh, but which said shares the said deponent verily believes are really the property of the above-named A.B. And further saith not. E. Sworn and subscribed before me, this 10th day of May, a. p. 1860. L. M., Justice of the Peace. VI. REcoGNISANCE. E. F. vs. + Debt not exceeding $100. A.B LYCOMING COUNTY, ss. Ws, 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 respectively, to the use of the said A. B., his executors, administrators or assigns. The condition of this recognisance is such, that whereas the said E. F. is about to sue out a writ of attachment in the nature of an execution against the said A. B., and to attach certain Lehigh Bank stock held in the name of R. S., of Pittsburgh, in satisfaction of a judg- ment 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 e and satisfy the said R. S., 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 pro erty of the defendant, ‘then this recognisance to be void, otherwise to be and remain in full force and virtue, Taken and acknowledged before me, this 10th day of May, a. p. 1860. L. M., Justice of the Peace, ATTACHMENT IN EXECUTION. 177 Where stock is attached which belongs to another person than the defendant, the owner may ‘be admitted to become a party to the suit, and take defence in like manner as if he had been summoned as garnishee, upon his filing an affidavit that the stock is really his property, and entering into a recognisance with two sureties, conditioned for the payment of such damages as may be adjudged the plaintiff, if the stock should really belong to the defendant. The above form of affidavit and recognisance can be readily altered to meet such a case. 7 VII. InrERROGATORIES TO GARNISHEE. A. B. Before Justice J. R. vs. Attachment in Execution. E.F., Garnishee of C.D. } Interrogatories to be answered by garnishee, filed June 20th 1860. First. Do you know C. D., of whom you are garnishee in the above writ of attachment? Second. Have you had commercial or other transactions with the said C. D.? If yea, what was the state of your accounts with the said C. D. at the time of the service of the above writ of attachment upon you? Third. Was there, or was there not, a balance in your hands in favor of the said C. D. at the time of the service of the said writ of attachment upon you? If yea, state the amount particularly. ; Fourth. Had you in your possession any goods, merchandise, moneys, rights, credits or effects of any nature whatsoever, belonging to the said C. D., at the time of the service of the above writ of attachment on you? If yea, state the amount of said money, and the nature of the rights and credits, and the nature and quantity of said goods, merchan- dise or effects, A.B VIII. Rue on GARNISHEE TO ANSWER. Ss Before Justice J.R. : E. F., Garnishee of ©. D, | Attachment in Execution. AND now, June 20th 1860, 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. 3 J. R., Justice of the Peace. [srau.] IR : Take notice that the foregoing interrogatories, to be answered by you, have been filed, and that a rule has been entered to answer the same in eight days from the service of this notice; and also, that unless your answers thereto, in writing, on oath or affirmation, be filed in my office, within that time, judgment will be entered against you by default, for the amount of the plaintiff’s claim. J. R., 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 personally. If, on the return day of the attachment, the copy of the interrogatories and rule to answer have not been served, at least eight days previously, on the garnishee, in person, the justice, on the appli- cation 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 GARNISHEE. AB. Before Justice J.R. . E. F., Garnishee of C.D. Attachment 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 ©. 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 ‘oods from him. At the time of the service of the writ of attachment upon me, I was indebted to the said C. D. in the sum of twenty dollars, for goods purchased from him. Third. As I have already stated in answer to the second interrogatory, there was a balance of $20 in*my hands, in favor of the said C. D., at the time of the service of the writ of attachment. a Fourth. At the time of the service of the writ of attachment, I had not in my posses- sion any, goods, merchandise, moneys, rights, credits or effects of any nature whatever, 178 ATTACHMENT IN EXECUTION. belonging to the said C. D., except as I have before stated in answer to the gested interrogatory. Sworn [or affirmed] and subscribed before me, this 20th Gay of June 1860. J. B., Justice of the Peace. X. EXECUTION AGAINST GARNISHEE. POITER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of E—— township, or to the next Constable of the said County most convenient to the defendant, greeting: Wuersas, A. B., on the second. day of July 1860, before J. R., Esquire, one of our justices of the peace in and for the said county, obtained judgment against E. F., garnishee of C. D., for the sum of twenty dollars, to be levied of the moneys, rights and credits of the said C. D., in the hands and possession of the said E. F., which judgment remains unsatisfied. Therefore, we command you, that you levy the said sum of twenty dollars of the moneys, rights and credits of the said C. D., attached in the hands of the said E, F.; and if the said E. F. refuse or neglect, on demand, to pay the same, then that you levy the said sum of twenty dollars of the proper goods and chattels of the said E. F., as in the case of a judgment against him for his own proper debt; and indorse hereon, the time you make your levy, and hereon, or on a schedule to be 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 in the most public places in your township ; and returning the overplus, if any, of the said sale, to the said garnishee ; and of your proceedings herein, together with this execution, make return to our said justice, on or before the twenty-second day of July 1860. Witness our said justice, who hath hereunto set his hand and seal, this second day of July, a. D. 1860. J. R., Justice of the Peace. [sEAL.] XI. Docket ENTRY. A. B. ATTACHMENT IN Exxcution issued June 20th 1860, returnable vs. the 28th inst., at 4 o’clock, Pp. u., on judgment obtained before E. F., Garnishee of CO. D.| me by the said A. B., against the said ©. D., on the lst May : 1860, for $20, and costs. 8.S., constable. Same day, plff. files _ costs. interrogatories, ‘and rule entered on garnishee to answer in eight anomie, = gg | days, or judgment. Returned on oath, “Served attachment on Entering action . . . 10|deft. and garnishee, and served copy of interrogatories and rule Bul oath of const, - + 18 |to answer, on garnishee, personally, on 2lst inst.’ June 28th Interrogatories §=. s+ 19 1860, plff. appears, and claims to have execution of his judg- Proofotserviceofraie Loath} § ment on the effects of the deft. in the hands of the garnishee. Saar tos ane Nate fagy: 240 Deft. does not appear. , Garnishee appears, and files his answers, Trial and judgment 25 admitting that he is indebted to the deft. in the sum of $20, Return. . . { { 19| Whereupon judgment that the plff. have execution of the said Satisfaction 5| debt of $20, due by the garnishee to the deft., and attached in his hands; and if the said garnishee refuse or neglect, on de- dette att a gamnisheo . g0;mand by the constable, to pay the same, then the same to be Bee a ctag + ;8| levied of his the garnishee’s goods and chattels, as in case of a CL ee ee ee ae ae Judgment against him for his own proper debt; and that the See ra 10) garnishee be thereupon discharged, as against the deft., of the Serving ex'n « + %)sum so attached and levied. July 2d 1860, exeoution issued Mileage < : 6 ae garnishee. S.S., constable. Returned July 5th 1860, aa oney paid into office.’ Received $17.06 cents, amount of debt attached, less costs of attachment suit. (Signed) A. B. [179 ] Attachment for Contempt. When and how tt should issue. A susrice of the peace has no power to punish contempts committed before him, in a summary manner, by imprisonment. That power belongs to the higher courts alone. 2 €. 99. But they may, in such cases, hold the offender to bail to answer upon indictment, and to be of good behavior in the meanwhile; and may commit him in default of bail. An indictment will lie for a contempt of a justice of the peace, which, though not a breach of the peace, amounts to an obstruction of the execution of his office. 128. & R. 175. 2 Br. 142. The only case in which a justice can issue an attachment for contempt, is that of disobedience of his process. If a witness, not having a sufficient excuse, neglect to attend upon a subpoena, he is liable to be proceeded against by attachment for a contempt of the process of the law. In order to ground this summary mode of proceeding, it is necessary to prove that the witness was personally served with the subpeena ; unless by his own act he dispense with the legal form of service. 1 T. & H. Pr. 472-3. 1 Y. 308. An attachment has been refused where the witness was very old, weak and infirm, and it was sworn that he could not attend without danger of his life. And where it appeared that witnesses against whom an attachment had issued for dis- ‘ obedience to a subpoena, had been so much indisposed as to be incapable of attend- ing, they were discharged, and the costs of the attachment directed to abide the event of the suit. 1 D. 340. The general rule appears to be, that the party apply- ing for an attachment, must make out a clear case of contempt. 1 T. & H. Pr. 473. The following is the form ‘of an attachment to compel the attendance of a witness : CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To M. G., Constable of the 2d ward of the said city, greeting: _ Wecommand you, that you attach M. R., of the said city, tanner, if he be found in your bailiwick, and him safely keep, so that you have his body before the subscriber, one of our aldermen in and for the said city, at his office, at No. 340 South Fifth street, on the 10th of October 1860, aforesaid, to answer us of a certain contempt by him done, in refusing to appear before our said alderman, at his office, then and there to testif\ his knowledge in a certain action depending before our said alderman, wherein W. ¥ is plaintiff and A. D. defendant, as the said M. R..was duly required and summoned so to do. Have you then there this writ. Witness the said alderman, at Philadelphia aforesaid, this the eighth day of October, in the year of our Lord one thousand eight hundred and sixty. G. W., Alderman. [szat.] When the case shall be again before the justice and the witness in attendance, he must pay the costs of the attachment and service, unless he can satisfactorily prove that it was not in his power to attend at the time he was required. Under such circumstances the costs must abide the issue of the suit. The justice has no power to punish the contempt of the process by imprisonment; even the superior courts can punish disobedience to process by fine only. 1 Gr. 458. Purd. 188. If the witness attend, but refuse to be sworn and give evidence, he may, on application, be committed—“ for having refused to testify his knowledge in a case now pending before our alderman G. W.., at his office in the city of Philadelphia, he having refused to be sworn and give evidence in the said case.” A witness persevering in silence, when questioned, may be committed for contempt, and con- fined until he does answer. 2 Rep. Con. Ct. 167. 4 P. L. J. 180. 1 Greenl. Ev. § 319. An alderman appointed under a rule of a court of record to take depositions, is empowered to imprison a witness who contumaciously refuses to be sworn in order to testify in the cause. 4 P. L. J. 126. But although the alderman, in such case, has power to attach or commit, if seems, the more proper course is, to make a special 180 ATTORNEYS. return of the matter to the court from which the rule issued, when the witness may be subpenaed to appear at the bar of the court, and answer, or be attached. Pfiel v. Elmes, 1 T. & H. Pr. 442. : oof Where a witness before an alderman refused to answer a proper question in the cause, and the alderman committed him until he should fully answer, Rogers, J., refused to discharge the witness, on habeas corpus, and remanded him until he should answer the question propounded. Bright. R. 109. Attorneys. ° I, Attorneys at law. II. Warrants of attorney. I, ATTORNEYS AT LAW. An Arrornry 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, belong- ing to the courts of justice in which he may be admitted. 8 Bl. Com. 25. The constitution of Pennsylvania provides “that in all criminal prosecutions, the accused hath a right to be heard by himself and his counsel.” Art. 1X., sect. 9. And by the act of 21st March 1806, it is provided that “in all civil suits or pro- ceedings in any court within this commonwealth, every suitor and party con- cerned, shall have a right to be heard by himself and counsel, or either of them.” Purd. 66. The judges of the several courts‘of record of this commonwealth shall, respect- ively, have power to admit a competent number of persons, of an honest disposition, and learned in the law, to practise as attorneys in their respective courts. Act 14 April 1834, § 68. Purd. 66. Before any attorney, admitted as aforesaid, shall make any plea at the bar, except in his own case, he shall take an oath or affirmation, as follows, viz. : “You do swear or affirm, that you will support the constitution of the United States, and the constitution of this commonwealth, and that you will behave 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 Te will use no falsehood, nor delay any person’s cause for lucre or malice.” Thid. § 69. No alderman or justice of the peace shall practise as attorney or counsellor in any court of justice in this commonwealth, in any case which has been or may be removed fram before him by appeal, or by writ of certiorari; or act as agent in any such.case. Ibid. § 75. If any attorney at law shall misbehave himself in his office of attorney, he shall be liable to suspension, removal from office, or to such other penalties as have hitherto been allowed in such cases by the laws of this commonwealth. Ibid. § 73. If any attorney shall retair money belonging to his client, after demand made _by the client for payment thereof, it shall be the duty of the court to cause the name of such attorney to be stricken from the roll of the attorneys, and to prevent him from prosecuting longer in such court. Ibid. § 74. An attorney’s agreement to refer a cause binds his client. 1D. 164. Payment to the attorney is payment to the principal. 2 Doug. 624. ‘Phe court will always look into the dealings between attorney and client, and guard the latter from impo- sition. 9 Johns. 253. An attorney at law may maintain an action on an implied assumpsit for profes- sional services rendered by him, without regard to the quality of the services. ° 4 W. 334. 2 P. R. 62. An attorney has no lien for his fees on money in the hands of the sheriff. 8 W. 357. But he has a lien for his professional compensa- ATTORNEYS. 181 ion on the papers in his hands, or on the money collected by him. 7 H. 99. 2 r. 281. An attorney at law who collects money and refuses to pay it over to his client, until sued for it, is entitled to no compensation for his professional services. 4 W. 420. 7 Barr 376. Whenever an attorney disobeys the lawful instructions of his client, and a loss ensues, the attorney is responsible for that loss. 8 Mass. 57. The attorney in the suit is a competent witness, although his fee is to depend on the verdict: the objection goes to his credit. 18. & R. 32. Members of the bar are not entitled to witness fees for attendance in a court in which they actually practise. 1 Wh. R. 276. 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. . a He attorney at law is not privileged in Pennsylvania from arrest on a capias. 1 . 350. . A payment to an attorney, by a sheriff, who has notice that the attorney’s authority has been revoked, is bad. 8 W. 357. II. WARRANTS OF ATTORNEY. A warrant of attorney is a written authority to the attorney or attorneys to whom it is directed, to appear for the person executing it, to receive a declaration for him in an action at the suit of the person therein mentioned, and thereupon to confess the action, or suffer judgment to pass by default; and to sign a release of all errors and defects touching such proceedings. 1 T. & H. Pr. 344. A warrant of attorney is generally given under seal, though it is said this is not indispensable. 1 Bouv. Inst. 351. 5 Taunt. 264. 17. & H. Pr. 344. A warrant of attorney may be attested by the attorney to whom it is directed. 6 Eng. L. & Eq. 855. 8 Ibid. 878. The judgment of a justice of the peace entered by authority of a warrant of attorney is void; a transcript thereof filed in the common pleas as a judgment upon which executions were issued, lands levied and sold, is also void, and will be reversed, and restitution of the money made by the sheriff’s sale awarded. 6 W. 294, [ 182 J Auctions An Auction is a public sale, where the parties designing to purchase bid upon each other, that is, successively offer an increasing price; the sale being to the highest bidder, 1 Burrill’s Law Dict. 162. From the circumstance of the bids being repeated ‘aloud by the salesman or auctioneer, it is sometimes termed a sale “by outcry.” Babington on Auctions 8. An auctioneer differs from a broker in being authorized only to sel, and that at public auction. 2 H. Bl. 555. The business of an auctioneer is regulated, in this state, by various acts of assembly, applying to different parts of the commonwealth. By these statutes, auctioneers are required to take out licenses or commissions, authorizing them to carry on the business, for which they must pay a price regulated by law, according to the privileges granted. -They give bonds to the commonwealth for the faithful performance of the several duties enjoined upon them by law; and are sworn to conform in all things to the auction laws of the state. Duties are laid on certain goods sold at auction; and penalties inflicted for selling without a commission, or otherwise violating the laws. They are bound to report quarterly to the state treasurer, under oath, the amount of their sales, and to pay over to him the amount of the duties accruing thereon by .aw. The act of 9th February 1751, prohibits the giving or selling of any rum, wine or other strong liquors, at any auction, to the persons attending the same, under a penalty of five pounds for each offence; one half for the use of the overseers of the poor, and the other half for the use of the informer. These penalties are recoverable before any justice of the peace, who is authorized summarily to convict the offender, either on his own view, or on the testimony of one or more witnesses; saving to the defendant the right of appeal. These fines are to be levied by distress and sale of the defendant’s goods, and for want of such distréss, he may be committed to prison, without bail, for the space of forty days. — The auction laws do not extend to hinder any executor or administrator from selling at auction, the lands or goods of their respective testators or intestates; nor to any judicial sales by sheriffs or constables; nor to the sale of goods distrained for rent. Purd. 69. A sale by auction is not complete until the bid has been accepted. The bid -is only an offer to pay a stipulated price for the article about to be sold; and like every other offer, which has not been accepted, it may be withdrawn until accepted. 1 Bouv. Inst. 392. Where a bid had been made at a sheriff’s sale by auction, and the sale ‘adjourned, the bid was held to be withdrawn by implication. 6 Barr 486. An anctioneer’s authority to sell may be revoked, even after he has incurred expenses in reference to the goods. 8 Hng. L. & Eq. 520. The general rule of law is, that parol evidence of declarations of an auctioneer is not admissible to vary the written terms of sale. 1 Pet. 0. 0.199. If a purchaser at auction do not fulfil his contract, he is liable for the difference between the price which he bid and a less price for which the goods may be sold at a second sale at auction, with interest thereon. Harper 219. If a purchase be made at auction of numerous articles of personal property, at one and the same time, and from the same vendor, the whole constitutes one entire contract, though the articles purchased be struck off separately, at separate and distinct prices. 2 W. & 8.377. 2 Barr 74. A purchaser at auction “ for cash before removal of the goods,” is liable in a suit by the vendor, unless he show an offer to pay the price and remove the goods pur- chased, or that the plaintiff prevented it. Ibid. If goods be sent to auction, with directions to the auctioneer to dispose of them at a certain average advance on the invoice price, and he sell them for less than the limited price, an action may be maintained against him for the difference between the limited price and that for which the goods were sold. 118. & R. 86. It seems, that the seller of goods at auction may lawfully employ an agent to bid the goods up to a limited price without mak‘ng it publicly known. 11S. & R. 86. But if the owner of an estate put up to sal> by auction employ puffers to bid for him, it is a fraud on the real bidders, and the highest bidder cannot be compelled BAIL. 183 to complete the contract. Selw. N P.191. ‘The employment of a bidder merely to raise the price at a sale of real @ tate, under an order of the orphans’ court, is a fraud upon the purchaser. 2 H. 446. 4 H. 200. An agreement entered into for the purpose of preventing competition at a sale of ‘property, under execution or distress for rent, is void, as against public policy. 3 omst. 129. 1 Bouv. Inst. 236. An auctioneer’s bond, under the act of assembly, is a security for his private cus- tomers, as well as for the duties payable to the state. 3 Y. 335. 4D. 95. 3 W. 297. And the person who first brings suit is entitled to priority of payment. 3 D. 500. 1B. 370. A licensed auctioneer, in the city of Philadelphia, who advances money on goods, and charges commissions on such advances, is liable to the payment of a pawnbroker’s license, under the city ordinance. 11 C. 277. _—@———— Gail. I, Bail defined and explained. III. Form of a bail-piece. II. Bail in civil cases. IV. Bail for stay of execution or appeal. I. Barn is used in our common law, for the freeing or setting at liberty of one arrested or imprisoned upon action, either civil or criminal, or surety taken for his appearance, at a day and place certain. Bract. lib. 8, tit. 2, ¢. 8. The reason why it is called bail is because, by this means, the party restrained is delivered into the hands of those that bind themselves for his forthcoming, in order to a safe keeping or protection from prison ; and the end of bail is to satisfy the con- demnation and costs, or render the defendant to prison. Tom. L. Dict. II. Bat IN crvit CASES. Since the passage of the act of 12th July 1842, to abolish imprisonment for debt, a recognisance of special bail in its technical sense—bail for the body—can only be taken, by a justice, for the appearance of a defendant arrested on a capias, in a case not within the provisions of that act, viz., in trespass or trover, for the recovery of money collected by a public officer, or for official misconduct. One who is special bail may depute another to execute a bail-piece for him, or one of two special bail may depute the other to.execute it. 6 W. 402.. Bail may take up their principal when attending court as a suitor, or at any other — time. 4 Y. 123. ; Special bail may arrest their principal anywhere, at any time, and under any cir- cumstances. Ibid. Bail in a suit entered in another state may seize and take the principal in this state. 2 Y. 263. ; Bail may depute another to take and surrender their principal; and the bail, or the person deputed by him for that purpose, may take the principal in another state, or at any time and in any place, and may, after demand of admittance, and refusal, break open the door of the principal’s house, in order to take him. 7 Johns. 140. But if they use more force than is necessary, they will (as in other cases) become trespassers ab initio [from the beginning], and be liable for false imprisonment. 3 Day 485. ir the creditor has the means of satisfaction in his hands, and chooses not to retain it, but suffers it to pass into the hands of the principal, the surety is discharged. 8 8. & RB. 452. When the surety apprises the creditor of the means of obtaining satisfaction with- out resorting to his personal liability, and the creditor refuses or neglects to use these means, the surety is discharged. 13 S. & R. 157. . It seems that a surety who has property of his principal in his hands, may give 184 BAIL, it up to satisfy an execution against himself for the debt for which he was surety. Addis. 153. A temporary stay of execution, by agreement of the plaintiff, in consideration of a confession of judgment by the defendant, will not exonerate the special bail in the action. 3 W. 376. an: 2 Where money is paid by a surety for two principals, the law implies a promise by each principal to reimburse the surety for the whole amount paid. 3 Binn. 126. Special bail has a right to appeal from the judgment of a justice against them, notwithstanding the act of 1810 says that, on the judgment of the justice, execution shall issue without stay. 38. & R. 98. : A surrender of the principal, in an insolvent bond, before the day of appearance, will not discharge the bail from his obligation. 4 W. 69. Le The bail of an insolvent is entitled to every part of the condition of the bond prescribed by the act of assembly; and if it do not contain the alternative of a pro- curement of a discharge or a surrender to jail, no recovery can be had upon it. 5 W. 346. If bail enter into a recognisance, although they are excepted to and never justify, they are liable. 1 Taunt. 427. : : Bail may recover such sums as they have been necessarily and fairly obliged to expend—as in sending after and securing their principal after he has absconded, in order to surrender him. 5 Esp. C. 571. III. Form oF A BAIL-PIECE. ‘CITY OF PHILADELPHIA, ss. A. B.) Before [E. F., Alderman.] Acrion or Truspass.] ; vs. } Judgment for plaintiff, for [twenty-six dollars and twenty-nine cents] Damages, Cc. D. and eighty-seven cents costs. I do certify, that [G. H.,] of [No. 20 Arch btrest | became special bail for the defend- ant, in the above action, in the sum of [sixty] dollars, for the appearance of the said defendant at my office, on the [seventh] day of [August,] 1860, by recognisance taken before me, one of the aldermen in and for the said city, the [second] day of [August,] 1860, as appears by the record of the said recognisance remaining in my office. Witness the said alderman Gs justice of the peace,] who has hereunto set his hand and seal, the [twentieth] day of [August,] in the year of our Lord one thousand eight hundred and sixty. E. F., Alderman. [szat.| The justice must récollect that so long as the provisions of the-act of 12th July 1842, are in force, he cannot issue a bail-piece to arrest the principal, in any case within the provisions of that act. IV. Batu For STAY OF EXECUTION OR APPEAL. The act of 20th March 1845 (Purd. 601), provides that the bail in all cases where bail is required for stay of execution, shall be bail absolute, with one or more suf- ficient sureties, in double the amount of the debt or damages, interest and costs recovered, conditioned for the payment thereof, in the event that the defendant fail to pay the same at the expiration of the stay of execution. The same act provides that the bail, in cases of appeal from the judgments of aldermen and justices of the peace, shall be bail absolute, in double the probable amount of costs accrued and likely to accrue, with one or more sufficient sureties, conditioned for the payment of all costs accrued, or that may be legally recovered against the appellant. In order to obtain an appeal or stay of execution, women, as well as men, must give the security required by law. 8 P. L. J. 190. See Acrions at Law, IV. and VI. 1. [ 185 J Bail and Commitment in Criminal Cases, I. For what crimes bail may be taken, and V. Form, &c., to appearand keep the peace. by whom. VI. Recognisance to give evidence. II. Where and how the prisoner may be VII. VIII. IX. Forms to return to court in committed. cases of assault and battery, to keep IIf. A general form of commitment. the peace and give evidence. IV. Form of a recognisance to appear at X. Docket entry of recognisance. court. : a I. For WHAT CRIMES BAIL MAY BE TAKEN, AND BY WHOM. Excessive bail shall not be required. Const. U. 8. Amend. art. VIII. Const. of Penn. art. IX. § 18. All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident or presumption great. Const. of Penn. art. IX. § 14. In all cases, the party accused, on oath or affirmation, of any crime or misde- meanor against the laws, shall be admitted to bail by one or more sufficient sureties, to be taken before any judge, justice, mayor, recorder or alderman where the offence charged has been committed, except such persons as are precluded from being bailed by the constitution of this commonwealth: Provided also, That per- sons accused as aforesaid, of murder or manslaughter, shall only be admitted to bail by the supreme court or one of the judges thereof, or a president or associate law judge of a court of common pleas: persons accused, as aforesaid, of arson, rape, mayhem, sodomy, buggery, robbery or burglary, shall only be bailable by the supreme court, the court of common pleas, or.any of the judges thereof, or a mayor or recorder of a city. Act 31 March 1860, § 7. Purd. 250. All sureties, mainpernors and bail in criminal cases, whether bound in recogni- sances for a particular matter or for all charges whatsoever, shall be entitled to have a bail-piece, duly certified by the proper officer or person before whom or in whose office the recognisance of such surety, mainpernors or bail shall be or remain, and upon such bail-piece, by themselves or their agents, to arrest and detain, and surrender their principals, with the like effect as in cases of bail in civil actions; and such bail-piece shall be a sufficient warrant or authority for the proper sheriff or jailer to receive the said principal, and have him forthcoming to answer the matter or matters alleged against him: Provided, That nothing herein contained shall prevent the person thus arrested and detained from giving new bail or sure- ties for his appearance, who shall have the same right of surrender hereinbefore provided. Ibid. § 8. To refuse or delay to bail any person bailable is an offence against the liberty of the subject, in any magistrate, by the common law. 4 BI. Com. 242. If the offence be not bailable, or the party cannot find bail, he is to be com- mitted to the county jail by the mittimus of the justice, or warrant, under his hand and seal, containing the cause of his commitment—there to abide till delivered by due course of law. 4 Bl. Com. 244. : A justice of the peace may discharge from prison one committed by him for a bailable offence, whether felony or misdemeanor, taking a recognisance for his appearance at court to answer. 6 W. & 8. 314. 2 P. 458. II. WHERE AND HOW THE PRISONER MAY BE COMMITTED. If a man commit felony in one county, and be arrested for the same in another county, he shall be committed to jail in that county where he is taken. Dalt. c. 170. ea Yet, if he escape and be taken on a fresh suit in another county, he may be carried back to the county where he was first taken. Ibid. The mention of the name, and the authority of the justice (Lord Haus says), in the beginning of the mittimus, is not always necessary, for the seal and sub- scription of the justice to the mittimus is sufficient warrant to the jailer; for it may be supplied by averment that it was done by the justice. 2 H. P. C. 122. — The mittimus should contain the name and surname of the party committed, if 186 BAIL AND COMMITMENT. known; if not known, then it may be sufficient to describe the person by his’ age, stature, complexion, color of his hair, and the like, and to add that he refuseth to tell his name. 1 H. P. C. 577. 1 Chit. Cr. L. 27. ei It ought to contain the cause, as for treason or felony or suspicion thereof ; otherwise, if it contain no cause at all, and the prisoner escape, it is no offence at all; whereas, if the mittimus contained the cause, the escape were treason or felony, though he were not guilty of the offence, and, therefore, for the king’s [common- wealth] benefit, and that the prisoner may be the more safely kept, the mittimus ought to contain the cause. 2 Inst. 52. 4 Mass. 497. 2 Ash. 61. . ‘A warrant or mittimus, to answer to such things as shall be objected against hin, is utterly against law. 2 Inst. 591. bivd Also, it ought to contain the certainty of the cause; and, therefore, if it be for felony, it ought not to be generally for felony, but it must contain the special nature of the felony, briefly, as for felony for the death of such an one, or for burglary, in breaking the house of such an one ; and the reason is, because it may appear to the judge upon an habeas corpus, whether it be felony or not. 2 H. P. ©. 122. The mittimus must be-under seal; and without this the commitment is unlaw- ful; the jailer is liable to false imprisonment; and the wilful escape of the jailer, or breach of prison by the felon, makes no felony. 1 H. P. C. 583. It should also set forth the place at which it is made (that it may appear to be within the jurisdiction of the justice.) 2 Hawk. P. C. 179. ’ Tt must also have a certain date of the year and day. Ibid. The act of 30 March 1821, directs that it shall be the duty of every justice of the peace of the county or alderman of the city of Philadelphia, before whom any recognisance of bail or surety in any criminal or supposed criminal case shall be taken, to set down accurately and at large, in a docket or record to be kept for that purpose, the name, place of abode, particularly describing the same, and the occu- pation or business of such recognisance or surety; and if the said recognisor or surety shall not be a housekeeper, the name and place of abode, particularly describing the same, and the occupation or business of the person or persons with whom such recognisor or surety may reside; and the said justices of the peace of said county, or aldermen of the said city, are required and enjoined to make a full and complete return of said recognisance or surety to the proper court having cognisance of the case, and of all and every the sureties [entries, gu ?] so made on his docket or record, touching or relating to such recognisance ; together with the proceedings of such justice of the peace or alderman, relating to the case in which such person or persons may have become bound as a recognisor or surety as afore- said. Purd. 480. . A recognisance is a bond of record, testifying the recognisor to owe a certain sum of money to some other, and the acknowledging of the same is to remain of record, and none can take it but only a judge or officer of record. Dalt. c. 186. But whensoever any statute giveth them power to take a bond of any man, or to bind over any man to appear at the assizes or sessions, or to take sureties for any matter or cause, they may take a recognisance. Yea, wheresoever they have authority given them to cause a man to do a thing, there it seemeth they have power given them to bind the party by recognisance to do it; and if the party shall refuse to be bound, the justice may send him to jail. Dalt. ¢. 168. He can only require security till the next court. 8 Mass. 78. 1 Mass. 488, Every obligation and recognisance taken by justices of the peace must be made to the commonwealth. It must also contain the name, place of abode, and trade or calling, both of principals and sureties, and the sum in which they are bound. And it is most commonly subject to a condition, which is either indorsed or under- written, or contained within the body of it, upon the performance of which the recognisance shall be void. Feme coverts (married women) and infants ought to find security, and not be bound themselves. Where a justice or alderman has authority to inquire into an offence and com- mit the prisoner; hold him to bail or discharge him, as circumstances may require, he may take a recognisance for his appearance before him, from time to time, pending the examinations. 6 8. & R. 427. BAIL AND COMMITMENT, 187 A justice may take recognisance with sureties for the appearance of a party charged with a bailable offence, at an adjourned examination, and if he do not appear, he and his sureties may be called, and a proper entry of their default made. 2 W. ©. 0. 422. On a verdict of acquittal, the defendant’s recognisance is considered tpso facto [Py the favt itself] void, and his bail discharged without any further entry. 4 ow. 410. But see 2 Comst. 82, 7 A recognisance for a prisoner’s appearance at the next term, and not at the suc- ceeding sessions, is to be discharged at the end of the term, by committing or dis- charging him, or delivering him on new bail. 2 P. R. 240. III. Form or cOMMITMENT, GENERAL. CAMBRIA COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of D——, in the County of Cambria, and to the Keeper of the Common Jail of the said County: THESE are to command you, the said constable, forthwith to convey and deliver into the custody of the keeper of the said common jail, the body of A. B., charged before J. R., one of our justices of the peace in and for the said county, with [here specify the “offence.] And you, the said keeper, are hereby required to receive the said A. B. into your custody in the said common jail, and him there safely keep until, &c. [as the case may be.] Witness the said J. R., at D—— township aforesaid, the fifth day of May, in the year of our Lord one thousand eight hundred and sixty. J. BR., Justice of the Peace. [szat.] IV. Form oF A RECOGNISANCE TO APPEAR AT COURT. You, J. L., [the mneipal | eka ledee to owe to the Commonwealth the sum of one hundred dollars, aie you, T. P. and T. T., [the Pal acknowledge to owe to the Common- wealth the sum of one hundred dollars each, to.be levied of your several and respective goods and chattels, lands and tenements, to the use of the Commonwealth; upon this condition, that if the said J. L. shall appear, personally, at the next Court of Quarter Sessions of the Peace, to be -held at R——, for the county of Berks, then and there to answer such matters and things as shall be objected to him, on behalf of the Common- wealth, for an assault and battery on S. B., and not to depart said court without leave, then this recognisance to be void, otherwise to be in full force and virtue. Are you con- tent? : ¢ V. Form oF RECOGNISANCE TO APPEAR, &C., AND KEEP THE PEACE, AND BE OF GOOD BEHAVIOR. You, J. L., [the principal,] acknowledge to owe to the Commonwealth the sum of one hundred dollars, and you, T. P. and T. T., [the bed acknowledge to owe to the Cor- monwealth the sum of one hundred dollars each, to be levied of your several and respective goods and chattels, lands and_ tenements, to the use of the Commonwealth; upon this condition, that if the said J. L. shall, personally, appear at the next Court of Quarter Sessions of the Peace, to be held at R——,, for the county of Berks, then and there to answer such matters as shall be objected against him on behalf.of the Commonwealth, and shall, in the mean time, keep the peace, and be of good behavior, towards all the citizens of the Commonwealth, and, especially, towards S. B., and not depart said court without leave, then this recognisance to be void, otherwise to be in full force and virtue. Are you content? VI. Form oF A RECOGNISANCE TO GIVE EVIDENCE. You, J. L-—-, acknowledge to owe the Commonwealth the sum of fifty dollars, to be levied of your goods and chattels, lands and tenements, to the use of the Commonwealth; upon this condition, that if you shall, personally, appear at the next Court of Quarter Ses- sions of the Peace, to be held at R—,, for the county of Berks, then and there to tes- tify, on behalf of the Commonwealth, against a certain .B. W., and not depart the court without leave, then this recognisance to be void, otherwise to be, and remain, in full force and virtue, Are you content? When a recognisance is taken before a magistrate, he may set it down on his docket, thus—‘ J. L., bound in $100 to appear, &c., T. P. and T. T. bound in $50 each, to give evidence, &c.,” from which he may afterwards make the recognisance out at length, and certify to the next sessions, or (if the offences be not cognisable there) to the court of oyer and terminer. 188 BAIL AND COMMITMENT. VIL. ForRMs OF RECOGNISANCES TO BE SENT TO THE COURT. Commonwealth ) Assault and battery on oath of S. B. vs. . L., of S—— township, yeoman, held in $100. J. R. S., of S—— township, yeoman, held in $100. : A. T., of L——, carpenter, held in $100, Upon condition, that if the said J. L. shall, personally, appear at the next Court of Quarter Sessions of the Peace, to be held at R——, for the county of Berks, then and there to answer such things as shall be objected against him on behalf of the Common- wealth, for assaulting and beating a certain §. B., and not depart the said court without leave, and, in the mean time, keep the peace, and be of goo behavior towards all the citizens of the Commonwealth, and, especially, towards the said S. B., then the above recog- nisance to be void, otherwise the said several sums of money to be levied of their goods and chattels; lands and tenements, respectively, to the use of the Commonwealth. Taken and acknowledged, the third day of May, a. p. one thousand eight hundred and sixty. Before J. R., Justice of the Peace. [sEat.] VIII. For THE PEACE AND GOOD BEHAVIOR. Commonwealth ) Surety of the Peace, and good behavior, on the affirmation of 8. B. vs. J. L., of S—— township, yeoman, held in $100. J.L. ) RB. &., of same township, yeoman, held in $100. A. T., of H——, carpenter, held in $100. Upon condition, that if the said J. L. shall, personally, appear at the next Court of Quarter Sessions of the Peace, to be held at © , for the county of Delaware, then and there to answer such things as shall be objected against him, on behalf of the Common- wealth, and not depart the said court without leave, and, in the mean time, keep the peace, and be of good behavior towards all the citizens of the Commonwealth, and, espe- cially, towards S. B., then the above recognisance to be void, otherwise, the said several sums of money to be levied of their goods and chattels, lands and tenements, respectively, to the use of the Commonwealth. Y Taken and acknowledged, the third day of May, a. p. one thousand eight hundred and sixty Before'J. R., Justice of the Peace. [szat.] IX. To GIVE EVIDENCE. Commonrresith Fornication—on oath of C. W. i. D. S., of M——, weaver, held in $50. Upon condition, that if the said C. W. shall, personally, appear at the next Court of Quarter Sessions of the Peace, to be held at R——, for the county of Berks, then and there to testify, on behalf of the Commonwealth, against a certain J. L., for committing fornication with a certain C. W., and not depart the said court without leave, then, the above recognisance to be void, otherwise, the said sum of money to be levied of his goods and chattels, lands and tenements, to the use of the Commonwealth. Taken and acknowledged, the third day of May, a. p. one thousand eight hundred and aixty. Before J. R., Justice of the Peace. [sxat.] X. Docket ENTRY OF RECOGNISANCE. Commonwealth ) Assault and Battery, on oath of 8. B. vs. J. L. of S—— township, yeoman, held in $100. J. L. R. 8., of S—— township, yeoman, held in $100. A. T., of H——, carpenter, held in $100. For the appearance of the defendant, &c., to answer, &c. = W., held in’ $50. To give evidence, &e. May 9th, a. pv. 1860, Before J. R., Justice of the Peace. [szar.] The parties need not sign the recognisance. If the justice shall subscribe his name, without his seal to it, this is enough, and that may be in either of these forms : —Acknowledged before me, J. R., or only to subscribe his name, thus, J. R. The recognisance is a matter of record, presently, as soon as it is taken and acknow- ledged, although it be not made up. 1 Chit. C. L. 61. [ 189 } Batlment. I. Bailment defined. II. Judicial opinions on. I. Batument is a delivery of goods on a condition expressed or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purpose for which they were bailed shall be answered. Jones Bail. 2. Story Bail. § 2. 1 Bouv. Inst. 393. If. Any damage happening to a chattel while in the hands of a bailee, without his misconduct, and while the chattel is employed in the use for which it was hired, must be sustained by the bailor. 13. Johns. 211. 1 Bouv. Inst. 405. So if a horse is hired to go a journey, and during the prosecution of the journey it becomes lame, without any ill-treatment by the hirer, he is not answerable for the damage. 13 Johns. 211. A voluntary bailee, without reward, is liable only for gross negligence, for the omission of that care which the most inattentive take. 14 8. & R.275. 3 H. 176. It is well settled that the finder of lost property has no lien for expenses gratui- tously incurred in taking care of it. 4 W. 66. hether the finder has any remedy against the owner to recover an indemnity for his expenses, seems undetermined. Ibid. If one hire a carriage and horses to go a journey, and the owner thereof send his own driver, and the horses are injured by immoderate driving, the person who hired them is not liable to the owner for damages. 9 W. 556. The hirer incurs no responsibility for anything happening to the carriage or horses, unless such injury have occurred from some act or interference of his. Thid. If injury happen to property in the hands of a bailee, the interference of the bailor to remedy the evil will not release the bailee from liability for the conse- quences of his negligence. 7 W. 542. A hirer, having charge of the property of another, is answerable for an injury which is caused by an omission of that care which a man of common prudence would have taken in his own concerns. 1 Gilp. 579. An ordinary bailee for hire, in case of the non-delivery of goods intrusted to him, is liable therefor, in the absence of proof of ordinary diligence. The fact of non-delivery is prima facie evidence of want of ordinary care, and throws the burden of proof on the defendant. 8 C. 208. A bailee to whom logs are delivered to be converted into boards, has a lien on them for his labor, independent of any special agreement; and he may maintain an action against an execution creditor of the bailor, by whom they are taken out of his possession. 9 C. 151. £190 } . Banks. I. Act of assembly relating to banks and III. Of checks. banking companies. IV. Liabilities of banks. II. Of bank notes. 1. Act or 16 Aprit 1850. Purd. 91. Sxor. 20. If any president, cashier, director or any other officer or clerk of any such bank, shall fraudulently embezzle or appropriate to his own use, or lo the use of any other person or persons, any money or other property belonging to said insti- tution, or left with the same as a special deposit or otherwise, he or they, upon con- viction of such offence, shall be fined in any amount not less than the sum so appro- priated or embezzled, and sentenced to undergo imprisonment in the proper state penitentiary, to be kept in separate and solitary confinement at hard labor, for any term not exceeding five years: Provided, That this shall not prevent any person or persons aggrieved from pursuing his, her or their civil remedy against such person or persons. Sect. 22. It shall not be lawful for any such bank to issue and put in cir- culation any bill-or note of said bank payable at any other place than at said bank, or otherwise than payable on demand, and of a denomination less than five dollars ;(a) and any violation of this section by any officer of any such bank, shall be a misdemeanor, punishable, upon conviction, by a fine of not less than five hundred dollars, and imprisonment in the jail of the proper county not less than one year. : Gren 26. Whenever any demand for specie shall be made by a note-holder of any bank, subject to the provisions of this act, it shall be the duty of the cashier or other officer of the bank upon whom such demand is made, to pay one-fifth of the amount of such demand in American gold coin, if the same shall be requested by the note-holder making such demand: Provided, That the one-fifth of such demand be not less in amount than five dollars. Sect. 48. From and after the twenty-first day of August, 1850, it shall not be lawful for any person or persons, corporation or body corporate, directly or indi- rectly to issue, pay out, pass, exchange, put in circulation, transfer or cause to be issued, paid out, passed, exchanged, circulated or transferred, any bank note, note, bill, certificate, or any acknowledgment of indebtedness whatsoever, purporting to be a bank note, or of the nature, character or appearance of a bank note, or caleu- lated for circulation as a bank note, issued, or purporting to be issued by any bank or incorporated company, or association of persons, not located in Pennsylvania, of a less denomination than five dollars; every violation of the provisions of this section by any corporation or body corporate, shall subject such corporation or body cor- porate to the payment of five hundred dollars; and any violation of the provisions of this section by any public officer holding any office or appointment of honor or profit under the constitution and laws of this state, shall subject such officer to the payment of one hundred dollars; and any violation of this section by any other per- son, not being a public officer, shall subject such person to the payment of twenty- five dollars, one-half of which, in each case above mentioned, shall go to the informer, and the other half to the county in which the suit is brought, and may be sued for and recovered as debts of like amount are now by law recoverable in any action of debt, in the name of the commonwealth of Pennsylvania, as well for the use of the proper county, as for the person suing. Sror. 49. In addition to the civil penalties imposed for a violation of the pro- visions of the last preceding section, every person who shall violate the provisions of that section, shall be taken and deemed to have committed a misdemeanor, and shall, upon conviction thereof in any criminal court in this commonwealth, be fined in any sum not less than one dollar, and not more than one hundred dollars; and (a) By the act 17 April 1861, the banks exceeding 20 per cent. of their capital paid in. were authorized to issue notes of the denomi- Purd. 94. nations of $1, $2 and $3, to an amount not BANKS. 191 the several courts of quarter sessions shall, in their charges to the grand jury, call their attention to this subject; and it shall be the duty of the several grand juries to make presentment of any person within their respective counties, who may be guilty of a violation of the provisions of the last preceding section ; and it shall be the duty of the several constables and other peace officers within this commonwealth, to make information against any person guilty of such violation, and they shall be sworn so to do: Provided, That it shall not be necessary, in any civil suit or criminal prosecution under this section, and the last preceding section, to produce, in evidence, the charter of any bank, or articles of association of any company, not located in this state. \ Act 1 May, 1861. Purd. 85. Szor. 36. Every president, director, cashier, teller, clerk or agent of any bank who shall embezzle, abstract‘or wilfully misapply any of the moneys, funds or credits of such bank, or shall, fraudulently, without authority from the directors, issue or put in circulation any of the notes of such bank, or shall, without such authority, fraudulently issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, sign any note, bond, draft, bill of exchange, mort- gage or other instrument of writing, or shall make any false entry on any book, report or statement of the bank, with an intent, in either case, to injure or defraud such bank, or to injure or defraud any other company, body corporate or politic, or any individual person, or to deceive any officer or agent appointed to inspect the affairs of any bank, shall be deemed guilty. of a misdemeanor; and, upon conviction thereof, shall be confined in the penitentiary, at hard labor, not-less than one, nor more than ten years. Acr 31 Marca, 1860. Purd. 228. Szcr. 64. If any cashier of any bank of this commonwealth shall engage directly or indirectly in the purchase or sale of stock, or in any other profession, occupation or calling, other than that of his duty as cashier, he shall be guilty of a misdemeanor, and, being thereof convicted, shall be sentenced to pay a fine not exceeding five . hundred dollars. II. OF BANK NOTES. II. BANK NOTES are treated as money, or cash, in the ordinary course of trans- actions of business, by common consent, which gives them the credit and currency of money to every effectual purpose. 1 Binn. 457. 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. & S. 92. “ . In delivering his opinion in the supreme court, in the case of Guay v. Donohue, Judge SERGEANT remarks: ‘No principle is better established, none more neces- sary to be maintained, than that bank notes are mot money in the legal sense of the word. They are not a legal tender as money, either in the ordinary trans- actions of business, or in the collection of debts by legal process. Coin struck at the mint, or authorized by act of congress, are alone lawful money.” .4 W. 400. When a person passes a bank note, though he does not engage to be responsible’ for its payment at the bank, yet he virtually undertakes that it is what it purports to be; and if it proves to be forged, the consideration has failed, and he is account- able for the money. 1 Marsh. 157. Nor, if objected to, are bank notes a valid tender; but, if not objected to, the tender is good. 3 Halst. 172. The holder of bank notes may insist upon payment in gold or silver coin, and is not obliged to receive foreign gold or silver coin, or the bills of the bank, or any other bills, in payment, and is entitled to be paid their numerical value in specie, and cannot be compelled to take the value fixed upon them by the brokers and speculators. 1 Ohio 222. It is not necessary to tender back a counterfeit bank note, to authorize a recovery of the consideration given for it. 1 B. Monroe 195. See 13 8. & R.319. 2 Greenl. Ev. § 124. if payment in bank notes be proved without showing of what denomination, they will be presumed to have been of the lowest denomination in circulation. 2 Greenl. Ey. § 129, a. Ibid. § 255. 192 BANKS. In Martin v. Bank U. 8., 4 W. C. C. R. 258, it was held that a bank was bound to pay the amount of a bank note, one half of which is presented, on proof of the loss or destruction of the other half; or that the other half has by fraud or accident got out of the possession of the bond fide owner. So in the Bank of Virginia v. Ward, 6 Munf. 166-9, it was decided that the bona jide owner of a bank note, and holder of one-half, having transmitted the other half thereof by mail, which was stolen or lost, may demand payment from the bank of the whole note, on fully _ proving the loss, and giving a satisfactory indemnity to the bank. A certificate of deposit, payable to the order of the depositor, only on the return of the gertificate, is not a negotiable instrument. 6 W. & 8. 227. 8 W. &S. 361. 4 C. 452. III. OF cHEcks. Bank checks, or drafts on banks, are instruments by means of which a creditor may assign to a third person, not originally party to the contract, the legal as well as equitable interest in a debt raised by it, so as to vest in such an assignee a right of action against the original debtor. 1 H. B. 602. Bank checks are considered as bills of exchange, and the holder must use due diligence in presenting them for payment. 6 Wend. 445. Checks must be presented for payment in a reasonable time. 6 Cow. 490. The holder of a check on a bank, cannot resort to the drawer, without proof of due presentment for payment, and prompt notice of dishonor. 7 C. 100. If, however, the drawer had no funds in the bank, at the time of drawing the check, presentment and notice may be dispensed with. But if the drawer had funds in the bank, at the time the check was drawn, the subsequent shifting of the balance will not take the case out of the general rule. Ibid. A check drawn by one person in favor of another, anil paid to the latter, is pre- sumed to have been received on account of a debt shown to have existed at the time. 5 C. 128. A paid check, drawn by the defendant’s wife, is evidence of payment, in the absence of proof of any other transaction to which it could be applied. 9 C. 235. IV. LiYABILITIES OF BANKS. A bank is not liable for the loss of special deposits, either of cash, or other articles, through the dishonesty of any of their officers, provided they take the same care of them that they do of their own specie. The bank is liable for all acts of their officers, which pertain to their official duty: for correct entries, for all mis- takes of their clerks, for, not giving due notice on notes left for colledtion, &e., and for all their acts done within the scope of their authority. On general deposits, however, the bank is liable for all losses, however arising; the privilege given by charter to discount on moneys deposited applying to general deposits only. 17 Mass. 479. But the bank is not chargeable with any general deposits made with an officer, who is not the one specially authorized; as to a book-keeper, for instance, unless the maney actually comes into the coffers of the bank, or the book-keeper is then acting for the teller in his absence. 4 Johns. 382. A bank which receives a note for collection, and when it is over-due places it in the hands of a notary, in the usual course, is not liable for the neglect of the notary to give notice to an indorser. 4 Wh. 105. A note had been deposited by the holder in a bank for collection. When it fell due and remained unpaid, it was placed as usual in the hands of the bank’s notary, whose clerk called at the store of G., the last indorser, to inquire for the place of residence of C., the first indorser. -The wife of G., who was in the store, told the clerk that C. resided at a particular place, which was in fact the place of business of C.’s son. ‘Notice was left at that ee and G. was informed of his wife’s direc: tion as to the place of residence of C. The note was renewed by agreement between the parties, and when it again fell due the notary’s clerk again left a notice at the place of business of C.’s son, supposing that it was the store of C., by which mistake C. was discharged ; held, that neither the bank, nor its agent the notary, was liable to the holder of the note for the consequences of the omission to give notice to the indorser. Ibid. [ 193 ] Garrator, Act 31 Marca 1860. Purd. 218. Secr.'9. If any person shall be proved and adjudged a common barrator, vexing others with unjust and vexatious suits, he shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one hundred dollars, or undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court. A justice of the peace may be indicted as a common barrator for exciting prose- cutions for offences; and it is not a sufficient defence that the prosecutions were not groundless, if he excited them with a view of exacting fees for afterwards suppress- ing them. 1 Bailey 379. See 2 Cr. C. ©. 60. —_@—— Bible, Family. A LEAF extracted from a family bible, containing entries of births and deaths of children, sworn to by some of the children, is good evidence. 2 Dall. 116. 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 Watts 82. 1 Greenl. Ev. § 104. . But although the entry in a family bible is admissible to prove the date of a birth, it is secondary evidence; and its admissibility for such purpose is subject to the general rule, that primary evidence must be adduced, if it can be obtained. 23 Texas 252. It cannot be received where the person who made the entry is present in court, or within reach of process. 1 McCord 165. 3 Wend. 376. — Biqamy. IF ANY PERSON shall have two wives or two husbands at one and the same time, he or she shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate and solitary confinement at labor, not exceeding two years, and the second marriage shall be void: Provided, That if any husband or wife, upon any false rumor, in appearance well founded, of the death of the other (when such other has been absent for two whole years), hath married, or shall marry again, he or she shall not be liable to the penalties of fine and imprisonment imposed by this act. Act 31st March 1860, § 34. Purd. 223. ; Tf any man or woman being unmarried, shall knowingly marry the husband or wife of another person, such man or woman shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment b separate or solitary confinement at labor, not exceeding two years. Ibid. § 35. In a prosecution for bigamy, the confession of the defendant is adequate evidence of the first marriage. 1 Ash. 272. 2 Rich. 434. 4 McCord 256. 2 Greenl. Evi. § 461, notel. * ; On an indictment for bigamy, an actual marriage must be proved; reputation and cohabitation are not sufficient. 7 Greenl. 58. The second wife is a competent witness either for or against the prisoner. 2 Tredell 346. 1 East P. C. 469. To bring a case within the proviso to the 34th section of the act of 31st March 1860, there must be a general report, that the husband or wife died at some parti- cular place, was shipwrecked, or lost his or her life in some way which the report specifies Commonwealth v. Smith, 1 Wh. Dig. 1177, pl. 622. 13 [ 194 ] Gills of Exchange. I. Nature of a bill of exchange. V. Presentment for payment. Il. Transfer of bills of exchange. VI. Notice of dishonor. III. Acceptance of a bill. - VIL. Actions on bills of exchange. IV. Days of grace. VIII. Damages on protested bills. I. NATURE OF A BILL OF EXCHANGE. A BILL OF EXCHANGE is an open letter of request addressed by one person to a second, desiring him to pay a sum of money to a third, or to any other to whom that third person shall order it to be paid, or it may be made payable to bearer. 1 Bouv. Inst. 353, 456, 2 es The person who makes the bill is called the drawer, he to whom it is addressed the drawee, and when he undertakes to pay the amount, he is then called the acceptor. The person to whom it is ordered to be paid is called the payee, and if he appoint another to receive the money, that other is called the indorsee, as the payee is with respect to him the indorser; any one who happens, for the time, to be in possession of the bill is called the holder of it. The time at which the payment is limited to be made is various, according to the circumstances of the parties, and the distance of their respective residence. Some- times the amount is made payable at sight, sometimes at so many days after sight, at other times at a certain distance from the date. Usance is the time of one, two or three months after the date of the bill, according to the custom of the places between which the exchanges run, and the nature of which must therefore be shown and averred in a declaration on such a bill. Double or treble usance is double or treble the usual time; and half usance is half the time. Where the time of’ pay- ment is limited by months, it must be computed by calendar, not lunar months; and where one month is longer than the succeeding one, it is a rule not to go in the computation into a third. Thus on a bill dated the 28th, 29th, 30th or 31st of January, and payable one month after date, the time expires on the 28th of Feb- ruary, in common years, and in the three latter cases in leap-year on the 29th (to which are to be added the days of grace). Where a bill is payable at so many days after sight or from the_date, the day of presentment, or of the date, is ex- sluded. Thus, where a bill, payable ten days after sight, is presented on the first day of a month, the ten days expire on the eleventh: where it is dated the first, and payable twenty days after date, these expire on the twenty-first. Lord Raym. 281. Stra. 829. ; Bills of exchange are foreign or inland. Foreign, when the drawer resides in one country and the drawee in another. Inland, when both the drawer and the drawee reside in the same kingdom. Chit. on Bills 9. But a bill drawn in one of the United States upon a person in another of the United States is a foreign and not an inland bill of exchange, and subject to all the law of evidence and damage of foreign bills. 2 Peters 586. 1 Rep. Const. Ct. N. 8.100. ‘Bills drawn on persons in different states, are considered here foreign bills.” Huston, J. 6 Whart. 414. 1 Bouv. Inst. 461. It is not essential to the validity of a bill of exchange that it be in form nego- tiable ; nor that it should contain the words “for value received.” If it be for the absolute payment of money, at all events, it will not invalidate it, if the fund on account of which it is drawn be named as a means whereby the drawee is to be indemnified. 7 C. 506. By the act of 5th April 1849, § 11, it is provided that bills of exchange, &c., made payable with the current rate of exchange, or in current funds, or with such like qualifications superadded, shall be deemed negotiable by indorsement, and the indorsees may recover thereon in their own names. Purd. 111. II. TRANSFER OF BILLS OF EXCHANGE. _ In the case of a bill payable to A., for the use of B., the right of transfer is only in A., because B. has only an equitable and not a legal interest. Chit on. Bills 128. A bill of exchange may be drawn by an agent, so also it may be indorsed by a BILLS OF EXCHANGE. 195 person acting in that capacity—in which case he must expressly indorse as agent, as “Ki. F. per proc. A. B.,” or he may write the name of his principal. Chit. on Bills 132. A qualified indorsement may be thus: “I hereby indorse, assign and transfer my right and interest in this bill to ©. D. or order, but with this express condi- tion, that I shall not be liable to the said C. D., or any holder, for the acceptance or payment of such bill, A. B.;” or the form may be, as in France, by the indorser writing his name, and subscribing, “ without recourse to me.” . The indorsee of overdue paper takes it exclusively on the credit of the indorser, and subject, even without proof of mala fides [bad faith], to all the intrinsic con- siderations that would affect it between the original parties; but where there is no direct evidence of the time of transfer, the presumption is, that it was made in the usual course of commercial business, and consequently befére the day of payment. 6 Barr 164. The presumption is, that the indorsee of negotiable paper received it bond fide, in due course of business, and for a valuable consideration. To put him to the proof of his title, and the consideration paid for it, the defendant must make out a prima facie case, that it was obtained by undue means, as by fraud, felony or force, or that it was lost and afterwards put in circulation. 5 C. 365. A note indorsed over by the payee, for a pre-existing debt, and received in full thereof, when paid, is negotiated in the usual course of business, and the indorser cannot be a witness to invalidate it in the hands of his indorsee. The extension of the credit, until the maturity of the note, is a sufficient consideration for the transfer, and gives the note so received all the protection imparted to commercial paper duly negotiated. Bitting v. Rosenberger, Common Pleas, Phila., March 24th 1849. s. p. 1 Zabr. 665. 8 Am. L. J. 319. 3 H. 278. III. AccrEPTaNcE OF A BILL. Acceptance, in its ordinary signification, is an engagement by the drawee, to pay . the bill, when due, in money. Byles on Bills 148. If one accept a forged bill, he is bound in law to pay for it. 4 D. 235, in note. The acceptor of a bill of exchange is not to be admitted to vary the terms of his acceptance, by parol evidence. 11 C.'448. Where a bill is accepted “ payable when in funds,” the burden is upon the plaintiff to show that the acceptors were in funds. Ibid. “The acceptor of a bill is to be considered as the principal debtor, and the other parties as sureties only; the holder, therefore, who is the creditor, ought not so to negotiate with the acceptor, as to prejudice the remaining parties to the bill. Ifa creditor give time to the principal debtor, the collateral securities are discharged, both in law and equity.’—Cuamprz, J. 3 B. & P. 366. If the holder of a bill compound with, and discharge the acceptor, he cannot afterwards resort to the other parties. But merely receiving partial payments from ng Seno without releasing him, does not affect the liability of the other parties. 16 Johns. 41. IV. Days or GRACE. A custom has obtained, among merchants, that a person to whom a bill is ad- dressed, shall be allowed a few days for payment beyond the term mentioned in the bill, called days of grace. In Great Britain and Ireland (and in the United States of America)’ three days are given; in other places more. If the last of these three days happen to be Sunday, the bill is to be paid on Saturday. These days of grace are not allowed on bills or notes payable on demand. Byles on Bills 162. It is provided by the act 21st May 1857, that all drafts and bills of exchange drawn at sight, shall be and become due and payable on presentation, without grace, and shall and may, if dishonored, be protested on and immediately after such presentation.” Purd. 111. The act of 11th April 1848, provides that payment of all notes, checks, bills of exchange, or other negotiable instruments, becoming due 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, as a day cf general thanksgiving, or for ‘ 196 BILLS OF EXCHANGE. the general cessation of business, in any year, shall be deemed to become due on the secular day next preceding. Purd. 110. V. PRESENTMENT FOR PAYMENT. Payment of a bill of exchange must be demanded on the day of maturity, at the place to which it is addressed. And demand at such place is sufficient to found a notice of dishonor to the other parties, unless, perhaps, when the holder knows the true place of business of the acceptor, in time to present it there. 3 C. 249. 6 C. 139. | : . ; A bill of exchange, in the absence of anything to indicate a different place, will be presumed to be addressed to the drawee at his residence, or place of business. Ibid. It is provided by the act of 21st May 1857, that the presentment for payment of any bill or bills of exchange, made or to be made elsewhere than in this com- monwealth, at an office or house referred to only in the margin of the bill, or below the name of the drawee, shall not be so construed as to charge the indorsers for non-payment, unless «uch office or house was, at the date of the bill, the actual place of business or residence of the drawee, or is distinctly expressed as such in the said reference, or unless it appear by the certificate of protest that upon dili- gent inquiry the place of business or residence of such drawee could not be found.” Purd. 111, VI. Notice of DISHONOR. The holder of a bill of exchange must use reasonable diligence to ascertain the residence of the drawer, for the purpose of giving him notice of its dishonor. It is not sufficient to look for the drawer at the place where the bill is dated, if his residence is elsewhere. Notice left with the family of a seafaring man, during his absence at sea, is sufficient. 5 B. 541. 5 Barr 178. Notice of protest is not required to render a firm liable on an indorsement, ‘where all the members of the firm are members of the house which drew the bill. 3 Barr 399. : The holder of a bill of exchange is not obliged to notify all the parties to it. It is sufficient to notify the party he intends to hold liable. And each indorser has an entire day to give notice to his predecessor on the bill. 6 C. 189. Notice of dishonor sent to the place of date is sufficient, unless the holder knows that the date does not truly indicate the residence. The rule seems to be, that if the residence be shown to be elsewhere in the same state, due diligence to ascer- tain it must be proved, and that notice was sent accordingly, unless the removal took place after the drawing of the bill. 3 C. 249. VII. AcTIoNs ON BILLS OF EXCHANGE. A party to a bill or note strictly negotiable, and which has actually been nego- tiated in the usual course of business, cannot be a witness to impeach it, in the hands of a.bond fide holder, by anything which attended its inception, or attached upon it before it left the hands of the original parties; as, for example, that the contract was usurious, or that the consideration failed. But he may testify to facts which occurred subsequently to the negotiation of the instrument, affecting it in the hands of the holder, and tending to disprove his right to recover upon it, such as a direct payment after it fell due. 9 Barr 82. 2 W. 268. 1 T. R. 296. 3 W.C. 0.5. 8 W. 304. 5 H. 77. The indorser of a note, not negotiated until after the day of payment, is compe- tent to invalidate it by his testimony. 4 8. & R. 399. It is no objection to’ an action by the drawer against the acceptor of a bill, that it has not been indorsed by the payee. 7 Barr 527. The onus of showing that an alteration in a material part of a negotiable instru- ment was lawfully made, is on the holder. And where the place of payment is in a different handwriting from the body of the instrument, there is a presumption of alteration. 9 Barr 186. Any material alteration of commercial paper, unaccounted for by the holder, is fatal to a recovery upon it. 9 Barr 186. 7 H.178. 3 0. 244. : BILLS OF EXCHANGE. 197 The maker of negotiable paper is always presumed, in the absence of evidence, to have issued it clear of all blemishes, erasures and alterations, whether of the date or body of the instrument; and the burden of showing that it was defective, when issued, is upon the holder, even though the alteration be beneficial to the maker. 8 C. 423. Whenever any bill of exchange, &c., shall be negotiated or paid, and the sig- natures of any of the parties shall have been forged, the indorsee or payer may recover back from the previous party the amount so paid for the same, with lawful interest, from demand of repayment. Act-5th April 1849. Purd. 111. This act was only declaratory of the existing law. Notice of the forgery within a reason- able time after its discovery, and an offer to return the bill, are necessary to the maintenance of an action for the recovery of the consideration paid, unless waived by the defendant, or the bill be shown to possess no value. 6 C. 145, 527. If the holder of a bill discharge a party who is liable to pay it, he thereby dis- charges all other parties whose liability was subsequent. But this effect is not produced by the holder’s discharging a party who would not be liable to the other parties, though prior to them. 6 Mass. 85. VIII. DAMAGES ON PROTESTED BILLS. Whenever any bill of exchange, to be drawn or indorsed after the Ist day of -\ugust 1850, within this commonwealth, upon any person or persons, or body cor- porate, of or in any other state, territory or place, shall be returned for non-acceptance or non-payment, with a legal protest, the person or persons to whom the same shall or may be payable, shall be entitled to recover and receive of and from the drawer or drawers, or the indorser or indorsers of such bill of exchange, the damages here- inafter specified, over and above the principal sum for which such bill of exchange shall have been drawn, and the charges of protest, together with lawful interest on the amount of such principal sum, damages and charges of protest, from’ the time at which notice of such protest shall have been given, and the payment of said principal sum and damages and charges of protest demanded, that is to say: if * such bill shall have been drawn upon any person or persons, or body corporate, of or in any of the United States or territories thereof, excepting Upper and Lower California, New Mexico and Oregon, five per cent. upon such principal sum; and . if upon Upper or Lower California, New Mexico or Oregon, ten per cent. upon such principal sum; and if upon China, India or other parts of Asia, Africa or islands in the Pacific Ocean, twenty per cent. upon such principal sum; and if upon Mexico, the Spanish Main, West Indies or other Atlantic islands, east coast of South America, Great Britain or other places in Europe, ten per cent. upon such principal sum; and if upon places on the west coast of South America, fifteen per cent. upon such principal sum; and if upon any other part of the world, ten per cent. upon such principal sum. Act 13th May 1850, § 6. Purd. 110. The damages which by this act are to be recovered upon any bill of exchange, shall be in lieu of interest and all other charges, except the charges of protest, to the time when notice of the protest and demand of payment shall have been given, and made as aforesaid; and the amount of such bill and of the damages payable thereon, as specified in this act, shall be ascertained and determined by the rate of exchange, or value of the money or currency mentioned in such bill, at the time of notice of protest and demand of payment as before mentioned. Act 30th March 1821, § 2. Purd. 110. On 2 bill drawn in another state, the Jew loci governs. And in such case it is not necessary that the bill be returned to the place where drawn, to entitle the holder to damages. 4 Y. 19. Damages are not recoverable from the acceptor. By the law merchant, the acceptor of a bill of exchange is not liable for re-exchange, and our statute has regard only to drawers and indorsers. 8 W. 545. The damages may be recovered without being specially demanded in the decla- ration. 3 Barr 474; 482. Damages on a foreign bill, protested for non-payment, are recoverable at the rate of exchange at the time of presentment to the drawer for payment, accompanied with notice of protest, and not at the rate at the time when notice of protest was 198 BONDS, received by the drawer, without a presentment of the bill. 2 M. 257. But see 1 Y. 204. 3°W. C. CG. 125. Damages are not recoverable if the bill was neither paid nor received in satisfaction of a precedent debt. 1D. 261. 4 Y.19. If remitted at the risk of the debtor here, he is entitled to the damages, and not the foreign creditor. 4 D. 157. The damages allowed by the statute are a compensa- tion for interest, damages and re-exchange; and the holder may recover the amount of the bill and damages, with interest on the whole from the date of protest. 3 Barr 474, 482. , A bill dated at Philadelphia, signed here in blank, and sent abroad to be filled up and there negotiated, is within the act. 11 H. 137. Bonds, I. Definition and nature of a bond. II. Assignment of bonds. I. DEFINITION AND NATURE OF A BOND. A BOND or obligation is a deed whereby the obligor obliges himself, his heirs, executors and administrators, to pay a certain sum of money to another at a day appointed. If-this be all, the bond is called a single one; but there is generally a condition added, that, if the obligor do some particular act, the obligation shall be void, or else shall remain in full force, as the repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. In case this condition be not performed, the bond becomes forfeited, and charges the obligor while living, and his estate after his decease. If the condition of a bond be impossible at the time of making it, or be to doa thing contrary to some rule of law, that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single and uncon- ditional ; for it is the folly of the obligor to enter into such an obligation from which he can never be released. If it be to do a thing that is malwm in se [an offence at common law], the obligation itself is void: for the whole is an unlawful contract, and the obligor shall take no advantage from such a transaction. 2 B]. Com. 274, 275. If the condition of a bond be to do a thing which is contrary to a rule of law merely, and not malum in se, the bond is single. 16 S. & R. 307. A lapse of twenty years creates a presumption of payment, if no interest has been paid in the mean time; but, if the period be shorter than twenty years, the pre- sumption must be supported by circumstances. 2 W. C. C. 323. 9.8. & R. 879. 1 Y. 344, 584. A bond is not avoided by tearing off the seal by the obligor, fraudulently or inad- vertently, without the assent of the obligee. 2 Mason 478. So, of a stranger tearing off the seal of a deed of land. 6 Cow. 746. II. ASSIGNMENT OF BONDS. All bonds, specialties and notes in writing, made or to be made, and signed by any person or persons, whereby such person or persons is or are obliged or doth or shall promise to pay to any other person or persons, his, her or their order or assigns, any sum or sums of money, mentioned in such bonds, specialties, note or notes, may by the person or persons to whom the same is or are made payable be assigned, indorsed and made over to such person or persons as shall think fit to accept thereof. Act 28th May 1715, § 1. Purd. 112. The person or persons to whom such bonds, specialties or notes are or shall be assigned, indorsed or made ov:r, their factors, agents, executors or assigns, may at his, her or their pleasure agair assign, indorse and make over the same, and so tottes quoties. Ibid. § 2. BONDS. 199 Jt shall and may be lawful for the person or persons to whom the said bonds, spe- cialties or notes are assigned, indorsed or made over as aforesaid, in his, her or their own name or names, to commence and prosecute his, her or their actions at law, for recovery of the money mentioned in such bonds, specialties or notes, or so much thereof as shall appear to be due at the time of such assignment, in like manner as the person or persons to whom the same was or were made payable might or could have done. Ibid. § 3. In every such action the plaintiff or plaintiffs shall recover his, her or their damages and costs of suit; and if such plaintiff or plaintiffs shall be nonsuited or a verdict be given against him, her or them, the defendant or defendants shall recover his, her or their costs against the plaintiff or plaintiffs. Ibid. § 4. Every such plaintiff or plaintiffs, defendant or defendants respectively recovering, may sue out execution for such damages and costs, in the like manner as is usual for damages and costs in other cases. Ibid. § 5. No person or persons shall have power by virtue of this act to make issue or give out any bonds, specialties or notes, by themselves or servants, than such as the might have made, issued and given out, if this act had never been made. Ibid. § 7. All assignments made of bonds and specialties shall be under hand and seal before two or more credible witnesses. Ibid. § 8. Provided, that it shall not be in the power of the assignors, after assignment made as aforesaid, to release any of the debts or sums of money really due by the said bonds, specialties or notes. Ibid. § 9. The object of this act was to enable an assignee to maintain an action in his own name. 1 D. 28. 1B. 433,n. 48.&R.177. He takes subject to all the equities existing between the parties at the time of the assignment. 1 D. 28. 2 Y. 23. 2 D. 49. 2B. 165. 5 B. 2382. 1B. 433,n. 48.& R177. 118.&R.75. 178. & R. 287. 1 P.R. 257.°2 P. RB. 245. 8 W.& 8. 818. 120.108. And to payments made to the assignor before notice of the assignment. 4S. & R. 175. 4 W.C.C. 585. 98. &R. 74. 5 W. &S. 219. 1 Barr 266. But if the assignee, when about to take the assignment, call upon the obligee to inquire whether the whole money is due, and take the bond in consequence of his representations, or of his silence as to any defence, he will be protected. 2 Y. 541. 1B. 433. 5B. 234. 98.&R.197. 168.&R.18. 1P. R. 24,476. 2P.R. 245. 3 Wh. 275. 5 W.151. The assignee of an assignee is subject to the same rule. 1 R. 227. The equity, however, which will affect an assignee for value only extends to want of consideration and defalcation, and not to collateral agreements between the parties. 98. &R. 141. 1 P. RB. 260. 8 W. & 8. 318. .8 Barr 294. Nor to secret equities residing in strangers. 9 Barr 899. And an equitable assignee of a bond given by an innocent purchaser will be protected against an unrecorded mortgage. 8 Y. 351. A covenant of guaranty indorsed on a bond does not pass by an assignment of it. 3 Barr 292. 8 W. 861. The covenant implied from the assignment of a bond is not a guaranty, but that the assignee should receive the money from the obligor to his own use, and if the obligee should receive it, then the assignor would be answer- able over for it. 1D. 449. 7 H. 183. Where a bond or other specialty is assigned in the mode prescribed by the act of 1715, that is to say, by an instrument under seal, attested by two or more witnesses, the legal title vests in the assignee, who must bring suit thereon in his own name. On the contrary, if the directions of the statute be not pursued, as, for example, if the assignment be not under seal, or although under seal, if there be but a single wit- ness, in such case, the assignment is termed an equitable one, and suit must be brought in the name of the assignor for the use of the assignee. Coupon bonds, payable to bearer, issued by incorporated companies, are negotiable instruments, and pass by delivery. 18 Leg. Int. 109. But, in this state, the coupon bonds of municipal corporations issued in pursuance of a special authority conferred by statute, are not negotiable. In this doctrine, however, it is admitted that the courts of Pennsylvania stand alone. 1 Wr. 358. And see 9 C. 289. 8 C. 280. [ 200 ] Books, Kc., required by a {Magistrate, I. Of the books and forms required. Ill. The magistrate’s law library. II. Ruling and paging the dockets, and indexing. I. Ons of the first considerations which should present itself to the mind of an alderman or justice of the peace, on the receipt of his commission, is, how he shall best qualify himself to discharge the duties which have thus been devolved upon him. In the first place, what books does he require? He should, without a doubt, have a copy of a digest of the laws of the state, and a copy of the best guide for justices of the peace which he can procure. These books appear to be indispensable. Having obtained. and carefully read these books, let him get from the most experienced justice near him, a copy of each of the blank fornis he shall want, and compare them with the forms which he will find printed in his Justice’s Guide. Having ascertained the most approved forms, and made the necessary alterations as to the name and residence of the justice, and. such other alterations, if any, as he may think proper, let him send and have them printed; or perhaps, in the county town, he may purchase them, ready printed, in such quantities as he shall be advised he may require. Printers in county towns would do the public a service and, it is hoped, promote their own interests, by always keeping in their offices the most approved forms of magistrates’ blanks. A justice should purchase two dockets: one for civil suits, and the other for criminal business. As to the manner in which the docket entries shall be made, examples on all the subjects likely to come before him will hereafter be given. In a small book, provided for that purpose, or in the criminal docket, he should record the indentures of the apprentices he may bind, and the marriages he may solemnize, and note any other miscellaneous duties he may perform, to all which he should have copious and correct indexes. II. Let the dockets be paged and ruled; the lines at such distances from each other as your handwriting may require. On the left hand of each page let there be a perpendicular line drawn with red ink, about two inches distant from the left hand edge of the page. The portion of the page thus set apart, on the left hand of the perpendicular line, to be considered as set apart for the names of the parties, the costs, &e.; the remainder of the page being appropriated to the docket entries. Index your dockets frequently; that is, in a small book or ona few pages, at: the beginning or ending of the docket itself, alphabetically arranged, put the name-of the plaintiff and the defendant, together with the page of the docket on which the docket entries, relating to that suit, may be found: thus— “A, B. v. C. D., p. 76.” With such a guide, the justice may turn to the suit and give whatever information may be required at a moment’s notice. III. The law books required by a magistrate, for the intelligent discharge of the important duties required of him, are few in number, but these should always be of the latest editions, so that he may be furnished with the most reliable guide in a path which, to him, is frequently an untrodden one. 1. In the first place, it is indispensable that he should possess Purdon’s Digest of the Laws of Pennsyl- vania; this will give him the complete body of the statute law of the common- wealth, with the decisions explanatory of it; and the Annual Digest issued immediately after the close of each session of the general assembly, will keep him always well informed upon this branch of the law. 2. The justice should have the present work, as a manual to be constantly referred to, when called upon to exer- cise his judicial functions. 8. He should have a good Pennsylvania Form Book. The best of these are Dunlap’s Forms and Graydon’s Forms, either of which will answer his purpose. 4. A good work on Criminal Law is a most useful adjunct to the justice’s office. Wharton’s American Criminal Law is the latest and best work upon this subject, and no magistrate ought to be without it. With these books, the justice of the peace will be enabled, with ordinary care and attention, BREAD AND FLOUR. 201 to discharge his duties to the satisfaction of the public and of his own conscience. If he desire to obtain a more extended knowledge of the law, he would do well to procure a copy of Blackstone’s Commentaries with Judge Sharswood’s notes, by a careful study of which he may become well grounded in the principles of the common law. — Gread and flour. [See ADULTERATION. ] I. Acts of assembly. Il. Warrant against a baker for selling loaf bread. , 1. Act 1 Aprin 1797. Purd. 128. Sxcr. 2. All loaf bread made for sale within this commonwealth, shall be sold by the pound avoirdupois; and every baker or other person offering the same for sale, shall keep at his or her house, or at such other pee at which he or she shall at any time offer or expose for sale any such bread, sufficient scales and weights, lawfully regu- lated, for the purpose of weighing the same; and if any baker or other person shall sell or offer for sale any loaf bread in any other manner, the contract respecting the same shall be void, and the person offending against this act shall, on conviction, forfeit and pay the sum of ten dollars for every such offence, one-half to the use of the informer, and the other half to the use of this commonwealth; and it shall be the especial duty of the clerk of the market, in any place where such officer is appointed, to discover and prosecute all persons offending against this act.(a) : Act 18 Marca 1775. Purd. 697. Szct. 8. The clerks of the several markets within this .province, now in office, and all such clerks as shall hereafter be appointed, before they enter upon the exe- cution of their office, shall take the following oath or affirmation, before some magis- trate or justice of the city, borough or county wherein they shall reside, viz.: “That he will well and truly, to the best of his skill and judgment, do and perform all things enjoined and required of him as clerk of the market, by the laws of this _ province.” Act 8 Aprit 1848. Purd. 491. Sect. 1. It shall not be lawful for any person within the counties of Bucks, Mont- gomery, Philadelphia and Delaware, and the city of Philadelphia, to sell Indian corn meal in any other way than by weight; and any person who shall sell Indian corn meal by measure, or in any other way than by weight, shall be liable, for each and every offence, to a fine of five dollars, which may be recovered before any alderman or justice of the peace, as sums of like amount are by law recover- able; one half whereof shall go to the informer, and the other half to the use of the city or county wherein such conviction takes place: Provided, That nothing herein contained shall be construed to prohibit the sale of Indian corn meal by the hogshead, barrel or half-barrel, as is now provided for by the inspection laws of this commonwealth. II. WaRRANT AGAINST A BAKER FOR SELLING LOAF BREAD, &. BERKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of H——, in the County of Berks, greeting: Wuereas, J. L., clerk of the market within the borough of H——, in the county of (2) The enactments of this law are clearly and prosecute all persons offending against for the public good; they may, without diffi- this act’—yet, with all these adequate pro- culty, be carried into full operation; a bounty visions and powerful recommendations, this is offered to the prosecutor; public officers act has never been carried into effect! Ought are named, whose “especial duty” itis made, it not to be enforced or repealed ? enforced by oath or affirmation, ‘to discover 202 BRIBERY Berks, hath made information, on oath, before J. R., one of our justices of the peace in and for the said county, that G. G., of H—— aforesaid, baker, doth not keep at his house, in H—— aforesaid, where he offereth, or exposeth, loaf bread for sale, from time to time, sufficient scales and weights, lawfully regulated for the purpose of weighing the same, contrary to the act of assembly in such case made and provided ; you are, therefore, hereby commanded to take the said G. G., and bring him before the said J. R. forthwith, to answer the premises, and further to be dealt with according to law. Witness the said J. R., at H—— aforesaid, the first day of September, in the year of our Lord one thousand eight hundred and sixty. J. R., Justice of the Peace. [szau.] When the defendant is brought before the magistrate, the witnesses should be examined, and if the charge be proved to the satisfaction of the justice, he should require bail for the appearance of the defendant, at the next court of quarter sessions, and if the bail be not given, the defendant should be committed. Gribery. I. Definition of bribery. II. Provisions of the Penal Code. I. Brrgery is the receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to incline him to do a thing against the known rules of honesty and integrity. 1 Hawk. P. C. 168. II. Act 31 Marca 1860. Purd. 226. Secr. 48. If any person shall directly or indirectly, or by means of and through any artful and dishonest device whatever, give or offer to give any money, goods or other present or reward, or give or make any promise, contract or agreement, for the payment, delivery or alienation of any money, goods or other bribe, in order to obtain or influence the vote, opinion, verdict, award, judgment, decree or behavior of any member of the general assembly, or any officer of this commonwealth, judge, juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter or thing whatsoever, depending or which shall depend before him or them, such person shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding five hundred ‘dollars, and to undergo an im- prisonment by separate or solitary confinement at labor, not exceeding one year. And the member of assembly, or officer, judge, juror, justice, referee or arbitrator, who shall accept or receive, or agree to accept or receive such bribe, shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confine- ment at labor, not exceeding five years. Szcr. 49. No witness shall be excused from testifying in any criminal proceeding, or in any investigation or inquiry before either branch of the general assembly, or any committee thereof, touching his knowledge of the aforesaid crimes, under any pretence or allegation whatsoever; but the evidence so given, or the facts divulged by him, shall not be used against him in any prosecution under this act: Provided, That the accused shall not be convicted on the testimony of an accomplice, unless the same be corroborated by other evidence, or the circumstances of the case. Szor. 50. If any elector, authorized to vote at any public election, shall directly or indirectly accept or receive, from any person, any gift or reward in money, goods or other valuable thing, under an agreement or promise, express or implied, that such elector shall give his vote for any particular candidate or candidates at such election, or shall accept or receive the promise of ‘any person that he shall thereafter receive any gift or reward in money, goods or other valuable thing, any office, appointment or employment, public or private, or any personal or pecuniary advantage whatsoever, under such an agreement or promise, express or implied, such elector shall be guilty of a misdemeanor, and shall, on conviction of either of the said offences, be sentenced BURGLARY. 203 to pay a fine not exceeding one hundred dollars, and undergo an imprisonment not exceeding six months. Scr. 51. Any person who shall directly or indirectly give, or offer to give, any such gift or reward to any such elector, with the intent to induce him to vote for any particular candidate or candidates at such election, or shall directly or indirectly procure or agree to give any such gift or reward to such elector, with the intent aforesaid, or shall, with the intent to influence or intimidate such elector to give his vote for any particular candidate or candidates at such election, give, offer or promise to give such elector, any office, place, appointment or employment, or threaten such elector with dismissal or discharge from any office, place, appointment or employ- ment, public or private, then held by him, in case of his refusal to vote for any particular candidate or candidates at such election, the person so offending shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding two years. Burglary. I. Provisions of the Penal Code. III. Warrant for a burglar II. Judicial decisions relating to burglary. I. Act 31 Marcy 1860. Purd. 239. Sect. 135. If any person shall, by night, wilfully and maliciously break or ente1 into the state capitol, or other public building belonging to the commonwealth, or to any city or county thereof, or to any body corporate, society or association, or into any church, meeting-house or dwelling-house, or out-house, parcel of said dwelling- house, withan intent to kill, rob, steal or commit a rape, or any felony whatever, whether the felonious intent be executed or not, the person so offending shall, on conviction, be adjudged guilty of felonious burglary, and be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. Sect. 136. If any person shall, in the day time, break and enter any dwelling- house, shop, warehouse, store, mill, barn, stable, out-house or other building, or wilfully and maliciously, either by day or by night, without breaking, enter the same with intent to commit any felony whatever therein, the person so offending shall be guilty of felony, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confine- ment at labor, not exceeding four years. The 179th section provides that on all convictions for burglary, &c., the defendant shall, in addition to the punishment prescribed for such offence, be adjudged to restore to the owner the property taken, or to pay the value of the same, or so much thereof as may not be restored: Provided, That the party to whom restitution is to re ali shall not be thereby rendered incompetent as a witness on the trial of the offender. II. There must be both a breaking and an entry to complete this offence. 1 Hawk. 130. _ The following acts amount to an actual breaking, viz.: opening the casement, or breaking the glass window, picking open the lock of a door, or putting back the lock on the leaf of a window, or unlatching the door that is only latched. 1 H. P. C. ¢. 38. But if a man leaves his doors or windows open, it is his own folly and negli- gence ; and if a man enters therein, it is no burglary; yet if he afterwards unlock an inner, or chamber door, it is so. 4 Bl. Com. 176. But to come dowr s chimney is held a burglarious entry; for that is as much closed as the nature ut things will permit. Ibid. So also to knock at a door, and upon opening it to rush in with a felonious intent; 204 BURGLARY. or, under the pretence of taking lodgings, to fall upon the landlord and rob him, these acts have been adjudged burglarious, though there was no actual breaking ; for the law will not suffer itself to be thus trifled with. Ibid. 177. : And so if a servant opens and enters his master’s chamber-door with a felonious design; or if any other person lodging in the same house, or in a public inn, opens and enters another’s door with such evil intent, it is burglary. Nay, if a servant conspires with a robber, and lets him into the house by night, this is burglary in both. Ibid. : As for the entry, any, the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient; as to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one’s money, are all of them burglarious entries. Tbid. Burglary may be committed in a house in the city, in which the prosecutor intended to reside on his return from his summer residence in the country, and to which, on going into the country, he had removed his furniture from his former residence in town, though neither the prosecutor nor his family had ever lodged in the house in which the crime is charged to have been committed, but merely visited it occasionally. 3 R. 207. If there be daylight or twilight enough, begun or left, whereby the countenance /of a person may be reasonably discerned, a breaking and entry is not burglary, by the common law. 7 Dane’s Ab. 134. To constitute the crime of burglary there must be an intent to commit a felony ; therefore, a breaking and entering a dwelling-house, in the night time, with intent to commit adultery, is not burglary. 16 Verm. 551. The general rule is, that if an out-house be so near the dwelling-house that it is used with the dwelling-house as appurtenant to it, though not within the same enclosure, burglary may be committed in it. But if there be no common entrance, and the buildings be distinct,the offence does not exist. Wh. Or. L. § 1561. III. A WARRANT TO APPREHEND A BURGLAR. BERKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of L——, in the County of Berks, greeting: Wurrnas, J. L., of the township of L——, in the county of Berks, hath this day made information, upon oath, before J. R., one of our justices of the peace in and for the said county, that yesterday, in the night, the dwelling-house of him, the said J. L., at L—— township aforesaid, was feloniously and burglariously broken open and entered, and one silver coffee-pot, of the value of forty dollars,(a) of the goods and chattels of him the said J. L., feloniously and burglariously: stolen, taken and carried away from thence, and that he hath just cause to suspect, and doth suspect, that G. B., of the same township, weaver, the said felony and burglary did commit. These are, therefore, to command you forth- with to take the said G. B., and bring him before the said J. R., to answer the said com- plaint, and further to be dealt with according to law. Witness the said J. R., at L—— township aforesaid, the second day of September, in the year of our Lord one thousand eight hundred and sixty. J. R., Justice of the Peace. [szau.] (2) If the offence be burglary alone, unai.ended with larceny, the warrant may be varied accordingly. [ 205 J Gurial Grounds. Act 31 Marca 1860. Purd. 226. Szot. 47. Any person who shall wilfully and maliciously destroy, mutilate, deface, injure or remove any tomb, monument, gravestone or other edifice, placed in any cemetery or graveyard mppreptyee to and used for the interment of human beings, in this commonwealth ;: or shall wilfully and maliciously injure, destroy or. remove any fence, railing or other work for the protection or ornament of such places of interment; or shall wilfully open any tomb, vault or grave, within the same, and clandestinely remove any body or remains therefrom; or maliciously destroy any tree or shrubbery growing in such cemetery or graveyard ; shall be guilty of a misdemeanor, and on conviction of either of the said offences, be sen- tenced to undergo an imprisonment not exeeeding one year, or to pay a fine not exceeding one hundred dollars, or both, or either, at the discretion of the court. y Of Writs of Certiorart, to Justices of the Peace. I. An essay on the nature and effect of the made by the magistrate. : writ of certiorari, the legal provisions Il. Judicial authorities as to the writ of relating to it, and the return to be certiorari. I. Ir frequently happens that a party is prevented by law from appealing from the magistrate’s judgment or proceeding; as where the amount is below five dol- lars thirty-three cents, or where the twenty days allowed for an appeal have elapsed. In these and other cases the only remedy is by certiorari. Where the magistrate’s proceedings are erroneous and illegal on the face of his record, this remedy may be resorted to successfully, and sometimes is, in, preference to an appeal. It is a subject of deep regret that, notwithstanding the terms of the preliminary affidavit, this writ is so frequently taken merely for the purpose of delay or of annoyance to the other party. In a majority of cases, the original judgments are affirmed by the court without a color of objection being offered by the exceptant; or, if exceptions be filed, he fails to appear in person or by counsel, on the argument day, to sustain them. A certiorari is a writ of error in every respect but form; its only office being to remove the proceedings for the inspection of the court. 1 R. 321. 3 P. R. 24. 9 Barr 216. It is essentially a writ of error, applicable only to proceedings not according to the course of the common law. 11. 419. It issues, by virtue of the provisions of the act of 20th March 1810 (Purd. 412) from the court of com- mon pleas to a justice of the peace, for the purpose of reviewing the regularity of his proceedings in a civil case. Its office is simply to bring up the record for review ; and the common pleas only examines to see if the justice acquired jurisdiction, and acted, during the whole proceedings, within the limits of the jurisdiction thus acquired. 2 Seld. 812. Being a writ of error, in everything but form, to entitle the party suing it out to a supersedeas, he must give security ; which may be taken by the prothonotary. 2 Phila. R. 68. In civil suits before a justice of the peace under the act. of 1810, the power of the supreme court to remove the proceedings, by certiorari, is taken away, by the 24th section of that act. Purd.412. Andin such cases the judgment of a justice. is only reviewable by the court of common pleas; and the 22d section of the same act provides, that the judgment of the court of common pleas shall be final in all proceedings so removed, and that no act of error shall issue thereon. Purd. 412. This, however, only applies to a judgment on a certiorari issued under the act of 206 CERTIORARI. 1810 ; where a subsequent act confers jurisdiction on justices of the peace, to pro- ceed in a different manner from that directed’in that act, the judgment of the common pleas on certiorari may be re-examined by the supreme court. 11 H. 521. 1. 184. It does not apply to the proceedings of two justices under the landlord and tenant law. 4B. 145. 38.&R.95. But it does apply to a proceeding under the stray law. 2 R.20. And to an action to recover a penalty for a breach of ordinance. 5 R. 119. In order to obtain a writ of certiorart, the party aggrieved, his agent or attor- ney, must make an affidavit, which may be sworn to before the prothonotary, that it is not sued out for the purpose of;delfy, but that in his opinion the cause of action was not cognisable before a justice; or, that the proceedings proposed to be removed, are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige him to pay more money (or to receive less from his opponent) than is justly due. Purd. 413. The affidavit must substantially follow the words of the act. 1 Br. 217. 1T. & H. Pr. 630. See Graydon’s Forms 38. The party must also give security, by recognisance, in double the amount of the judgment, condi- tioned for the payment of the debt, interest and costs, in case the judgment be affirmed, or the writ of certiorari be discontinued or non-prossed. 2 Phila. R. 68. The writ issues, of course, on filing the requisite affidavit and recognisance, the necessity for a special allowance of it by one of the judges having been dispensed with by the act of 26th April 1855. Purd. 412. It is directed to the alderman or justice by whom the judgment has been rendered, and commands him “ to cer- tify and send before the court the plea, with all things touching the same, so full and entire as before him they remain, together with the writ itself, that they may further cause to be done thereupon that which is right, and according to the law and constitution of this commonwealth ought.” And on his failure to comply with its command, the court may compel obedience by an attachment. The writ having been duly issued: ‘by the prothonotary, and delivered to the magistrate, it becomes bis duty, although the twenty days may have expired, to certify the whole proceedings had before him, by sending the original precepts or writs, a transcript from his docket of the proceedings had before him, and the exe- cution or executions, if any have been issued. If the entire record be not returned, the party may allege diminution of record, and the court will grant a rule on the magistrate to send up that part which is wanting. He is liable to attachment if that rule be disregarded. After arranging all the process and the copy of his own proceedings, in order of time, and duly certified, the magistrate should fasten them to the writ of certiorari, so as to enclose them within it, leaving the indorsement of the writ exhibited ; he may then write the return on the writ, thus: “To the Honorable the Judges within named, the plea within mentioned, with all things touching the same so full and entire as before me they remain, I hereby respect* fully certify and.send, as withiri I am commanded, together with this writ.” A. B., Alderman. It is the duty of the party excepting, to see to the return of the writ. He should therefore call on the magistrate and obtain the record and file it in the protho- notary’s office in season for the day appointed by the court for the argument of such matters. In some of the courts, the rule requires the record to be returned and exceptions to be filed by a stated time, prior to the argument day; in default of which the certiorari will be dismissed. No other return than that of the record can be legally made. The magistrate cannot, for instance, inquire into the fact of the death of parties to the suit, and return such fact in lieu of that which he is required to furnish. Such a return would subject him to an attachment. 1 W. 307. These peremptory rules are based upon the 25th section of the act of 1810, which obliges the court to decide thereon at the term to which the proceedings are returnable. Purd. 414. By the 21st section of the act of 1810, no judgment can be set aside on certiorari, unless it be issued within twenty days after judgment rendered, and served within five days thereafter. If this provision be not observed, the court will not look into the judgment, even if it do not appear from the record that the summons was served, if within the twenty days the defendant had knowledge of the proceedings, CERTIORARI. 207 and applied to have the judgment opened. 1 Ash. 135. But if it be apparent on the face of the record that the summons was not served in the manner directed by the act of 1810, and the defendant do not appear, the court will reverse the pro- ceedings, on certiorari, nothwithstanding more than twenty days may have elapsed before the issuing of the writ: where there is no legal service of the process on the defendant, he is not in court, and all the subsequent proceedings are erroneous and void. Offerman v. Downey, Com. Pleas, Phila. October 1849. Tryon v. Keller, Com. Pleas, Phila. 2 October 1852. 3 Am. L. R. 248. 3 Pittsburgh Leg. J. 301. 7 H. 495. 4 Comst. 296, 383. But in such case, the party must satisfy the court that his application was made within twenty days after the fact of the entry of the judgment has come to his knowledge. Campbell v. Penn District, Com. Pleas, Phila. 19 March 1853. 1 Ash. 135. 3 Phila. R. 258. The fact that notice was not given may be proved by parol. 7 H. 495. ‘A judgment obtained by any trick or fraud ought to be reversed, if the certiorari be taken within a reason- able. time after it is discovered. Ibid. So also, where it appears on the face of the record, that the justice had no jurisdiction, the court will reverse, notwith- standing the lapse of more than twenty days. This proviso of the act of 1810, only applies to civil suits, and an action for a penalty for a breach of ordinance is not in- cluded. 12 8. & R. 53. Formerly the court would not travel into the merits of the original matter, but took the case as stated on the magistrate’s return. 2D. 114. But now, to prevent injustice, the evidence given before him will, under special circumstances of fraud or gross injustice, be inquired into. 5 Binn. 30. 2 Wh. Dig. 133, pl. 250. Where there is reason to suspect partiality or corrupt practice on the part of the justice, as where he refuses to hear material testimony, the court will permit parol evidence to be introduced. So, where he decides on the oath of the plaintiff alone. 1 Ash. 209. So, where one justice re-examines what has been already determined by another. Ibid. 215. But, in general, parol evidence is ingdmissible, if the pro- ceedings appear to be regular on their face, and the justice has acted within the sphere of his jurisdiction. Ibid. 51, 64. The act referred to, provides, that there shall be no reversal for want of formality in the magistrate’s proceedings, if it shall appear, on the face thereof, that the defendant confessed a judgment for any sum within the jurisdiction of the justice; or that a precept issued in the name of the commonwealth, requiring the defend- ant to appear before him on some day certain, or directing the constable to bring the defendant forthwith before him, agreeably to the provisions of the act; and that the constable having served the writ, judgment was rendered on the day fixed, or some other day to which the case was postponed by the justice, with the knowledge of the parties. As regards the day of appearance and judgment, it should be stated on the justice’s docket; but if the day of appearance be mentioned, and then the entry proceed to state that the case was examined and judgment rendered, the court will presume that judgment was given on that day. 5 Binn. 29. The magistrate is not bound to enter on his docket the evidence on which his judgment is founded— it will be ‘presumed “that it was on legal proof. Ibid. 31. He need only state the demand and the kind of evidence produced to support the claim, whether upon bond, note, penal or single bill, writing obligatory, book debt, damages on assump- tion, or whatever it may be, so as to enable the court to ascertain the grounds of the controversy, and his decision thereon. 1 Br. 209. See Act 1810, § 4. Purd. 600. A. 27. Butif he should, unnecessarily, so enter it, and it be found insufficient to support the judgnient, it will be reversed. So where it appears that judgment was rendered merely on the attestation of the party interested. 2 D. 77, 114. So where the evidence is not the legal evidence which the law calls for, the court would probably set aside the proceedings, -where the party had no appeal. But where he has ample remedy by appeal, and, neglecting : oo bail for the stay of execution, the court will not interpose. 1 Y. 251. Where it appears on the face of the record that the magistrate has exceeded his jurisdiction, by giving judgment and issuing execution for a greater sum than the act of assembly allows, the court will consider the whole as a nullity, and discharge 208 CERTIORARI. a defendant committed under such judgment. 1 D. 135. But where his juris- diction evidently appears on the face of the record, the settled rule has been to form no presumption against the accuracy of the proceedings, (5 Binn. 32,) and his judg- ment though erroneous is binding, until reversed, on certiorari or appeal. 9 8. & R. 12. 38 Pittsburgh Leg. J. 301. : ; As justices have not jurisdiction in ad/ cases of contract, it ought to appear upon their proceedings what is the nature of the contract on which the action is founded —and the judgment will be reversed if his jurisdiction does not appear from the re- cord. 1 Br. 339. 1 Phila. R. 518. In an action for trespass to real estate, it need not appear on the record, that the estate was in the county where the action arose. 8 Penn. L. J. 425. See 1 Phila. R. 516. 5 Ibid. 222. In an action on a bond, it is no objection to his jurisdiction that the penalty exceeds $100, if the real debt do not. 1 M. 270. No execution can be set aside on certiorari, for informality, if it appear on the face of the same, that it issued in the name of the commonwealth after the expiration of the proper period of time; and for the sum for which judgment had been rendered, together with interest thereon and costs; and a day mentioned on which return is to be made to the execution by the constable; and that the cause of action shall have been cognisable before a justice of the peace. Whatever may be the objections to the execution, it cannot be set aside on certio- rart, unless the latter be sued out and served within twenty days after the execution issued, if the justice had jurisdiction of the cause of action. On the affirmance of a judgment on certiorari, the record is not remitted to the magistrate; but execution issues at once from the common pleas for the debt, interest, and costs, (or for the costs only, as the case may be,) without referring the cause again to the justice. 1 D. 400. 3 P. R. 24. The party in whose favor the judgment has been affirmed, may also take a scire factas against the bail, who is liable without any previous process against the principal. 6 8. & R. 573. When, however, the certiorari is non-prossed, the record must remitted to the justice to be proceeded in. It never was the practice here or in England to treat a non-pros as a final judgment, and in this respect there is no difference between a writ of error and a certiorart. The practice has been general, if not universal, to collect the debt in such case by an execution from the justice. 8 P. R. 24. The costs in the event of a second action being brought, and a trial had, after a reversal of the prior judgment on a certiorari, are provided for by the twenty-fifth section of the act of 1810, already mentioned. It directs, that when the plaintiff re- moves and reverses the justice’s proceedings, and on a second trial before him, or any other justice, if judgment shall not be obtained for a sum equal to or greater than the original judgment, the plaintiff shall pay all costs accrued on the second trial, as well as those which accrued at the court, including any fees, not exceeding four dollars, which the defendant may have given his attorney in such trial, together with fifty cents per day to the defendant while attending court in defence of the proceedings ; and where the defendant removes and reverses the judgment, and i, shall appear that he attended the trial before the justice, or had legad notice to attend the same, and on a final trial being had as aforesaid, the plaintiff shall obtain judg- ment for a sum equal to or greater than the original judgment, the defendant shall pay all costs accrued on the second trial before the justice of the peace, as well as those which accrued at the court before whom the proceedings have been set aside, including any fees which the plaintiff may have given to any attorney, not exceeding four dollars, to defend the proceedings of the justice, together with fifty cents per day while attending at court on the same; which costs shall be recovered before any justice of the peace, in the same manner as sums of a similar amount are recoverable. The right to recover the costs on a writ of certiorar’ depends on the relative amount recovered or abated by the subsequent judgment: therefore, upon the re- versal on certiorari of an execution, on the ground that no judgment had been entered by the justice on an award of referees, and the judgment is subsequently entered, and the money recovered, the costs of the certiorari cannot be recovered by the defendant in error from the plaintiff in error. 4 W. 450. A judgment of CERTIORARI. 209 reversal on certiorari does not carry costs. Bartram v. Atkinson, Com. Pleas, Phila. 1858. II. [In addition to the cases referred to in the text, it is deemed advisable to sub- mit other authorities in the language of the reporters. J The entry of an ineffectual appeal is no bar to a certiorari within the time re- quired by law. 2 Phila. R. 215. If the return (to a certiorart) be false, the justice is liable to an action at the in- stance of the injured party. If the magistrate shall have acted unjustly, an informa- tion will be granted against him. 2 D. 114. The 21st section of the act of 20th March 1810, which provides that “no judg- ment shall be set aside in pursuance of a writ of certiorari, unless the same be issued within twenty days after the judgment was rendered,” applies only to civil actions. 12 8. & BR. 53. Where on certiorari the record of the justice stated the cause of action to have been “a contract,” but what was the nature of the contract did not appear, the pro- ceedings were reversed. 1 Br. 339. A certiorari does not lie to a justice of the peace to remove proceedings had before him under the act of the 16th of April 1807, in relation to stray cattle. 2 RB. 29. If the judgment of a justice of the peace be affirmed on certiorari, the practice is to have execution from the common pleas. In the case of a non-pros, the record is remitted to the justice who issues execution. 3 P. R. 21. Whenever it affirmatively appears, on the face of the proceedings of a justice of the peace, that the oath of: the plaintiff has been admitted, to establish a pecuniary demand, in a civil controversy, (except in the common case of a plaintiff proving his book of original entries,) the court of common pleas will reverse the judgment on certiorart. 1 Ash. 209. 5 Penn. L. J. 462. 1 Phila. R. 517. Where the defendant does not appear before the justice, it must appear that the summons was served in the manner directed by the act of 1810, or the court will reverse the proceedings on certiorari. The following returns have been held insuf- ficient, viz.: “personally served ;” or “ served a copy on defendant ;” or, “copy served personally ;” or, ‘‘left a copy at defendant's boarding-house.” Com. Pleas, Phila., November 14th 1848. The manner of service must be “by producing the original summons to the defendant, and informing him of the contents thereof; or leaving a copy at his dwelling-house, in the presence of one or more of his family or neighbors.” Purd. 594. See 2 Pars. 232, 285. 6 H. 120. 1 Phila. R. 519. 3 Pittsburgh Leg. J..301. 8 Ibid. 164. A certiorart operates as a stay of proceedings, unless the judgment complained of has been begun to be executed. 13 Wend. 664. But an execution under which a levy has been made, is not superseded by a certiorari afterwards sued out. 9 Johns. 66. 2 Hill 9. The court will notice a substantial and fatal error in the proceedings, though not specially assigned, when it is deemed essential for the purposes of justice. 2 P. 265. 14 [ 210 J Common Carriers. I. Who are common carriers. III. Lien of common carriers. II. Liabilities of common carriers. ' IV. Carriers of passengers. I.. WHO ARE COMMON CARRIERS. ALL persons carrying’ goods for hire, as masters and owners of ships, hoymen, lightermen, stage-coachmen, and the like, come under the denomination of common carriers. Selw. N. P. 858. 1 Bouv. Inst. 410. , It has been determined that any person undertaking, for hire, to carry the goods of all persons indifferently, is, as to the liability imposed, to be considered a common carrier, 1 Salk. 249. 2 Greenl. Ev. § 208. 8 C. 208. A person may be a common carrier of money, as well as of other property. 11 Johns. 107. : Owners of steamboats: carrying freight and parcels for hire are common carriers, and subject to their liabilities. 8 Wend. 158. So of a company using steamboats and railroads. 18 Wend. 611. So of boatmen and other freighters for hire, on navigable rivers and canals. 2 Bailey 421. Ferrymen are liable as common carriers, and they are the legal judges when it is safe to pass over or not. 2.N.& M.17. But the owner of a ferry is not liable for losses in crossing, if it be rented and in possession of the tenant. Minor 366. A wagoner who carries goods for hire thereby contracts the responsibility of a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment. 1 W. & 8S. 280. One who holds himself forth to the public to carry for hire, is a common carrier, as much in his first trip, as in any subsequent one. 1 C. 120. II. LiaBiLity oF COMMON CARRIERS. A common carrier is bound to receive and carry all goods offered for transporta- tion, and is liable to an action in case of refusal without sufficient cause. An express company engaged in the business of transporting small packages has as good a right to the benefits of a railroad as the owners of the packages possess in person. And a contract giving to one express company the exclusive right of transportation in passenger trains is illegal and void. 12 H. 378, 381. Common carriers are liable for every injury which happens to goods intrusted to their care, unless it be caused by act of God, inevitable accident or the enemies of the land. 6 Johns. 107. 1 Pars. Cont. 684. Common carriers are Ele for every injury happening to property intrusted to their care, unless it be caused by inevitable accident, by public enemies or by the act of the owner of the property. 8 8. & R. 533. And this rule extends as well to carriers by water as to carriers by land. 10 Johns. 1. See 2 Binn. 74. In an action by a common carrier against the consignee, to recover the price of carrying, the defendant may set up, as a defence, negligence or want of skill in the carrier, by which the goods were deteriorated in value. 5 W. 446. Where a parcel is delivered to a driver of a stage-coach to be carried, the master, and not the servant, is responsible. Bul. N. P. 71. It is well settled that, if a common carrier, by whom goods are sent to be delivered to A., sells them to B., the sale vests no property in the purchaser. 3 W. 178. 8 8. & BR. 500. Notice that ‘all baggage is at the owner’s risk,” though brought to the knowledge of the passengers, will not excuse a steamboat and railroad company from paying for the loss of baggage. 5 R..179. But see 6 W. & S. 495. It seems to be settled in Pennsylvania, that carriers may, by special contract, limit their responsibility, though many learned judges have expressed some regret that the validity of notices restricting their liability was ever recognised. 5 R. 179. 9 W. 87. 6 W. & 8B. 495. But such carriers cannot, by any special notice or agreement, free themselves from all responsibility, particularly where there is gross negligence or fraud, nor from the COMMON CARRIERS. 211 exercise of ordinary care. Ibid. Such a contract does not relieve them from ordi- nary care in the performance of their duty. 6 C. 242. 8 C. 208. Its effect, if brought home to the party, is only to change the responsibility of the carrier from that of a common carrier, to that of an ordinary bailee for hire. 8 C. 208. When a common carrier claims an exemption from the responsibility whigh the rule of law casts upon him, on the plea of special notice, he must show not only that the notice was brought home to the bailor, but also that the terms of the notice were clear and explicit, and not liable to the charge of ambiguity or doubt. 5 R. 179. 9 W. 87. 6 W. & 8. 495. 4 H. 67. 2 Greenl. Ev. § 216. 8 C. 208. A common carrier is answerable for the loss of a box or-parcel, though he be ignorant of its contents, or they be ever so valuable, unless he make a special acceptance. But if the consignor of goods studiously conceal from the captain of a ship, or misrepresent the value.or nature of the goods shipped, the ship-owner is not liable if the goods be purloined on the voyage, though the wrongdoer would be. 3 W. &S. 21. Tender by a common carrier to a consignee of goods intrusted to his care, must be reasonable in respect to time, place and manner, and this is a question for the jury [or the justice, as the case may be]. If the goods be tendered after hours of business, or when the consignee is unable to receive them, such tender will not dis- charge the carrier. 5 W. & S. 123. 3 Comst. 822. In an action on the case against a common carrier for not delivering goods accord- ing to consignment, the value of the goods sent is the lowest measure of damages. 5 W. & §. 435. In such action, a previous demand of the goods is not necessary to the plaintiff’s right to recover. Ibid. In an action against a common carrier to recover the value of goods delivered to him to be carried, the owner of the goods, being the plaintiff in the action, is not a competent witness to prove the contents of the trunk or the value of the articles which it contained. 6 W. & S. 495. But if the trunk contained only wearing apparel, and such things as are ordinarily ‘necessary for the convenience and use of a traveller—such as his wife’s jewelry, and other articles pertaining to her wardrobe—the plaintiff, or his wife, are competent witnesses to prove not only the contents of the trunk, but also their value. 10 W. 335. 8 W. & S. 369. 3 Barr 451. III. Lien oF COMMON CARRIERS. It is laid down, as a general rule, that whenever any one is obliged to receive goods, to perform any duty on them, he has a /ven on them at common law; for, as that imposes the burden, it also gives him the power of retaining for his indemnity. L. Raym. 752. 10. 120. Yet chs Hen extends only to the carriage price of the particular goods on which the lien is due. Any further lien, on a general balance, must be founded on a general usage of trade, or on a particular contract, to that effect, between the parties. Jeremy on Carriers 70. One not a common carrier, but who specially undertakes to carry a particular Joad for hire, has no lien for freight, unless he reserve it by agreement. 1 C. 120. See tit. “ Lien.” IV. CaRpiEeRs OF PASSENGERS. No action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prose- cute the suit to final judgment and satisfaction. Act 15 April 1851, § 18. Purd. 754. Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned. Ibid. § 19 212 COMMON CARRIERS. The persons’ entitled to recover damages for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relative ; and the sum recovered shall go to them in the proportion they would take his or her personal estate in the case of intestacy, and that without liability to creditors. Act 26 April 1855, § 1. Purd. 754. ; The declaration shall state who are the parties entitled in such action ; the action shall be brought within one year after the death, and not thereafter. Ibid. § 2. ; If any person shall be maimed or otherwise injured in person, or injured in property, through or by reason of the wanton and furious driving or racing, or by reason of the gross negligence or wilful misconduct of the driver of any public stage, mail coach, coachee, carriage or car, employed in the conveyance of passengers; or through or by reason of the gross negligence or wilful miscon- duct of any engineer or conductor of any locomotive engine or train of railroad _ cars or carriages ; or any captain or other officer of any steamboat employed in the «. conveyance of passengers or of goods, wares, merchandise or produce of any description; such driver, engineer, conductor, captain or officer, shall, on convic- tion thereof, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment, by separate or solitary confinement, or by simple im- prisonment, not exceeding five years: Provided, That the provisions of this act shall not interfere with the civil remedies against the proprietors and others, to which the injured party may by law be now entitled. Act 31 March 1860, § 29. Purd. 222. If a person take his place in a stage-coach, and pay at the time only part of the fare as a deposit, the proprietor is at liberty to fill up his place with another pas- senger, if the first party be not at the inn, ready, when the coach sets off. 1 Hsp. N. P. 27. But if at the time of taking his place he pays the whole fare, the proprietor cannot dispose of his place; for the passenger may take it at any stage of the journey he thinks proper, and which may be most convenient. Ibid. Coach owners are not liable for injuries which passengers may sustain from inevitable accidents, as from the oversetting of the coach, from the horses taking fright, there not being any negligence in the driver. 1 Selwyn, N. P. 417. Carriers of passengers are bound to carry all passengers who offer themselves, against whose personal character and conduct there are no just objections, pro- vided they have sufficient accommodations. They have no more right to refuse a passenger, than an innkeeper has to turn away a guest. 1 Bouv. Inst. 417. 2 Sumn. 221. Railroad companies are answerable for the direct and immediate consequences of errors committed by themselves, or caused by the negligence of themselves or their agents; but not for perils to which a passenger exposes himself by his own rashness or folly. 11 H. 147. Where injury is the result of mutual and concurring negligence in the parties, no action for damages will lie. 12 H. 465. When a railroad company undertakes the transportation of a passenger for an agreed price, the contract implies that they are provided with a safe and sufficient railroad to the point indicated; that their cars are staunch and roadworthy ; that means have been taken beforehand to guard against every apparent danger that may beset the passenger 3 and that the servants in charge are tried, sober and competent men. 6. 0. 234. 1 Bouv. Inst. 417. When a passenger is injured, without fault on his part, the law raises, prima facie, a presumption of negligence, and throws on the company the burden of proving that it did not exist. 6 C0, 284. A railroad company undertaking the carriage of passengers to an intermediate point on their road, is bound to stop there a sufficient length of time to enable all the passengers to alight; and if a passenger be injured in consequence of the starting of the train before a sufficient time has been given to alight, the company is lidble in damages. 8 C. 292. If a passenger be injured in consequence of his disregard of the necessary regulations of the company, in regard to the mode of alighting from their cars, COMMON LAW. 218 they are not liable, even though the. negligence of their servants concurred in causing the mischief. 9 C. 818. | Under the act 26 April 1855, the damages to be recovered by the surviving relatives for an injury resulting in death, are confined to such as are capable of a pecuniary estimate; nothing is to be allowed for the mental sufferings of the sur- vivors, or the corporal sufferings of the injured party. 9 C. 818. Common Law. ~* "4" Tere common law and the statute law flow originally from the same fountain— the legislature. The statute law being the will of the legislature remaining on record in writing: the common law, nothing else but statutes anciently written, but which have been worn out by time. All the laws of England began by con- sent of the legislature; and whether it be now law by custom, by usage or by writing, it is the same thing.—Wimor, C. J. 2 Wils. 348-51. The “common law” mentioned in the 7th art. of the amendments of the con- stitution of the United States is the common law of England, and not that of any individual state. 1 Gall. 20. The constitution and laws of the United States are predicated in the existence of the common law. 1 Bald. 558. The common law of England has always been in force in Pennsylvania. 1 D. 67. And it can only be changed by legislative enactment, clearly indicating an inten- tion to work a change. The presumption always is, that no change is intended. 18 Leg. Int. 21. . : In all cases where,a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the direction of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect. Purd. 41, 248. For the decisions on this statute, see tit. ‘“ Acts of Assembly,’’ IT. The common law is in many particulars much more extensive and important than the statute. It is often denounced, yet it is the great guardian of our rights. In many respects it is so sacred, that what is the common law of England, is, in this country, placed beyond legislative interference, by being incorporated in the constitutions of the different states. It was brought here by the colonists, -and was considered the birthright of the people. Wherever the conquests of England reach, to whatever quarter her colonies extend, the common law goes with them.- That it was brought here, and that we inherit it, was never doubted. 1 Phila. -R. 536. Common Scold. Tue offence of being a common scold is indictable, and may be punished by fine and imprisonment at the discretion of the court. 12 8.& R. 220. 3 Or. C. C. 618, 620. But see 3 Am. L. R. 118. The punishment of the ducking stool cannot be inflicted in Pennsylvania. Ibid. The revised Penal Code provides that every offence whatever, not thereby specially provided for, may be punished as heretofore. Purd. 247. [ 214 ] Compounding Offences, ly any person having a knowledge of the actual commission of any misprision of treason, murder, manslaughter, rape, sodomy, buggery, arson, forgery, counter- feiting or passing counterfeit money or notes, burglary, housebreaking, robbery, larceny, receiving stolen goods or other property by persons knowing them to be stolen, kidnapping, bribery, perjury or subornation of perjury, shall take money, goods, chattels, lands or other reward, or promise thereof, to compound or conceal, or upon agreement to compound or conceal, the crimes aforesaid, every person so offending shall be guilty of a misdemeanor, and on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding three years. Act 31 March 1860, § 10. Purd. 218. This section, whica embraces the misprision of felony, and the theft-bote of the common law, by which these crimes were punished by fine and imprisonment, is essentially new to our statute law. The only existing statutory punishment appli- cable to this class of crimes, is that found in the 32d section of the act of the 31st of May 1718, 1 Sm. 123, which makes any person who shall agree or compound, or take satisfaction for any stealing or goods stolen, subject to forfeit twice the value of the sums agreed for or taken. The concealment of any of the infamous crimes embraced in this section, for the consideration of money, or property given or paid, as the price of such concealment, is a crime made so base from the motives which have induced it, as to render it the proper subject of penal infliction. Simple con- cealment, from mistaken notions of pity and compassion, or generous forgiveness, are not embraced in the enactment. Report on the Penal Code 13. ~ Though the bare taking again of a man’s own goods which have been stolen, without favor shown to the thief, is no offence, (Hawk. P. C. b. 1, ¢. 59, § 7,) yet, where he either takes back the goods, or receives other amends on condition of not ‘prosecuting, this is a misdemeanor punishable by fine and imprisonment. Ibid. § 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. Compounding informa- tions on penal statutes is an offence at common law. 4 BI. Com. 136. Somewhat analogous to the offence of compounding felony is that of misprision of felony. Rose. Cr. Ev. 811. The law pérmits the compromise of an offence, though made the subject of a criminal prosecution, for which the injured party might recover damages in an action; but if the offence be of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution of it. 2 Williams 307. 5 Am. L. R. 420. In all cases where a person shall, on the complaint of another, be bound by recognisance to appear, or shall, for want of security, be committed, or shall be indicted for an assault and battery or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done with intent to commit a felony, or not being an infamous crime, and for which there shall also be a remedy by action, if the party complaining shall appear before the magistrate who may have taken recognisance or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate, in his discretion, to discharge the recognisance which may have been taken for the appearance of the defendant, or in case of committal, to discharge the prisoner, or for the court also, where such proceeding has been returned to the court, in their discretion, to order a nolle prosequi to be entered on the indictment, as the case may require, upon payment of costs: Provided, That this act shall not extend to any assault and battery, or other misdemeanor, committed by or on any officer or minister of justice. Act 81 March 1860, § 9. Purd. 251. ! [ 215 ] Concealed Cieapons. Act 18 May 1850. Purd. 181. Szcr. 14. 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 concealed upon his person, with the intent therewith unlawfully and maliciously to do injury to any other person, shall be deemed guilty of a misdemeanor, and upon the conviction thereof, shall be sentenced to undergo solitary confinement at hard labor 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 case may infer such intent as aforesaid, from the fact of the said defendant carrying such weapons in the manner as aforesaid. The act of 3d May 1850, for establishing a uniform system of police in Phila- delphia, provides that when any persons, to the number of twelve or more, shall be therein unlawfully, riotously and tumultuously assembled, and shall refuse to dis- perse, after proclamation made, they shall be deemed guilty of a misdemeanor, and, on conviction, sentenced to solitary confinement at hard labor in the county prison for not less than one month, nor more than two years; and that any person arrested, upon whose person, or in whose possession, shall be found fire-arms, or any other deadly weapon, shall be deemed guilty of an intention to riot, whether said fire- arms or deadly weapon shall be used or not, unless the contrary gan be satisfactorily established, and punished accordingly. Purd. 181. Act 8 Aprit 1851. Purd. 181. \ Szor. 4, Any person who shall wilfully and maliciously carry any pistol, gun, dirk-knife, slung-shot or deadly weapon in the borough of York, shall be deemed guilty of felony, and being thereof convicted shall be sentenced to undergo an im- prisonment at hard labor for a term not less than six months nor more than one year, and shall give security for future good behavior for such sum and for such time as the court before whom such conviction shall take place may fix; and any person or persons who shall otherwise offend against the provisions of this section shall be fined in a sum not exceeding one hundred dollars, for the use of: the borough of York, or be imprisoned for a term not exceeding one year, or both, at the discretion of the court, or may be held to bail for future good behavior. Tt has been held, in Kentucky, that a law prohibiting the carrying of concealed weapons is unconstitutional, being in violation of that section of the Bill of Rights, which declares “that the right of the citizens to bear arms, in defence of them- selves and the state, shall not be questioned.” 2 Litt.90. The court there said, that whatever restrains the full and complete exercise of the right is a violation of the constitution. Such laws, however, have been sustained in Alabama. 1 Ala. 612; in Indiana, 2 Blackf. 229; in Georgia, 1 Kelly 243; and in Texas, 24 Texas 894. But in Georgia, such a law was held to ba unconstitutional, in so far as it prohibited the carrying of a pistol, or other weap-n, openly. 1 Kelly 243. [ 216 J Conspiracy. I. Provisions of the Penal Code. II. Judicial decisions. J. Aor 81 Maron 1860. Purd. 288. Sor. 127. If any two or more persons shall conspire or agree, falsely and mali- ciously, to charge or indict any other person, or cause or procure him to be charged or indicted, in any court of criminal jurisdiction, the person so offending shall be guilty of a misdemeanor, and on conviction be sentenced to pay a fine not exceed- ing one thousand dollars, and to undergo an imprisonment, either at labor by separate or solitary confinement, or to simple imprisonment, not exceeding three years, at the discretion of the court. a5 ; Sect. 128. If any two or more persons shall falsely and maliciously conspire, and agree to cheat and defraud any person, or body corporate, of his or their moneys, goods, chattels or other property, or to do any other dishonest, malicious and un- lawful act, to the prejudice of another, they shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding two years. IL. The offence of conspiracy, according to all the authorities, consists, not in the accomplishment of any unlawful or injurious purpose, nor in any one act moving towards that purpose; but in the actual concert and agreement of two or more persons to effect something, which being so concerted and agreed, the law regards as the object of ar indictable conspiracy. Whart. Or. L. § 2291 n. 2 P. 341. The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or a lawful act for an unlawful purpose. And the offence is complete when the con- federacy is made. 2 Mass. 337. é All who accede to a conspiracy after it is formed, and while it‘is in execution, and all who, with knowledge of the facts, concur in the plans originally formed, and aid in executing them, are fellow-conspirators. Their concurrence, without proof of an agreement to concur, is conclusive against them. They commit an offence when they become parties to the transaction, or further the original plan. 4 Wend. 259. 1 Greenl. Ev. § 111, 233. 2 Ibid. § 90. Bright. R. 143. A combination is a conspiracy in law, whenever the act to be done has a neces- sary tendency to prejudice the public, or oppress individuals, by unjustly subject- ing them,to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief. Every association, therefore, is criminal, whose object is to raise or depress the price of labor beyond what it would bring if it were left without artificial excitement. Whart. Cr. L. § 2291 n. 1 Jour. Juris. 225. Bright. R. 36. 2 P. 59. : 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. Cr. L. § 2317, 3 Burr. 1484. 1 Eng. L. & Eq. 585. 2 H. 228. A conspiracy to publish a libel, or to defame by spoken words not actionable, ae be equally a subject of prosecution by indictment. 8 Barr 289, per GIBSON, A conspiracy to commit an assault and battery is indictable. 5 C. 296. A conspiracy entered into to induce and procure others to do an act prohibited, under a penalty, by statute, is an indictable offence, whether the object were effected or not. 11 H. 855. All conspiracies to injure others, by preventing, obstructing or defeating the cones oF public justice, by fabricating or suppressing evidence, are indictable. 2 L a , A conspiracy is in its nature a joint offence ; less than two persons cannot be accused of it; and where this offence is charged, the court cannot award a separate trial. 2 Ash. 31. A man and his wife, being in law but one person, cannot be convicted of the same conspiracy. unless other parties are charged. Wh. Cr. L. § 2348. CONSTABLES. 217 The wife of one conspirator is not a competent witness either for or against the others. 2 Ash. 31. An indictment lies for any conspiracy to vex or annoy another—for instance, to a : play or an actor, right or wrong. 2 Campb. 369. 8 Barr 240, per GrB- son, 0. J. To constitute a conspiracy, the purpose to be effected by it must be unlawful, either in respect of its nature, or in respect of the means to be employed for its agcomplishment; and the intended act, where it has not 2 common law name to import its nature, must, in order to show its illegality, be set forth in the indict- ment. 5 Barr 65. Where concert is part of a criminal act, it is not the subject of indictment as a conspiracy to commit the act. There is no such offence as a conspiracy between a man and a woman to commit adultery.’ 2 H. 226. . Constables, I. Of their antiquity and general duties. VI. Duties in regard to elections. II. Of their election and qualification. VII. Actions against constables. III. Appointment of deputies. VIII. Miscellaneous provisions. IV. Removal for misconduct, &c. IX. Judicial decisions. V. Duties and liabilities in civil cases. X. Forms of process. I. OF THE ANTIQUITY AND GENERAL DUTIES OF CONSTABLES. Ir the great antiquity of the office, or the extensive powers intrusted to him who exercises it, could inspire men faithfully, and with a single eye to the public weal, to discharge the duties of any office, then would the duties of the office of con- stable be certainly discharged with uprightness and a conscientious determination to command public respect and confidence. All the old English law books are full of the early appointment and confidence reposed in this officer. So entirely is the origin of the office lost in the mists of antiquity, that the learned, who delight in devoting themselves to such inquiries, have been unable to determine whether the origin of the word constable was to be ascribed to the Saxon language, or to that of the eastern empire. The later writers incline to the latter opinion. Which of them, or whether either of them, is right, is, comparatively to ascertaining the rights and duties of the office, a matter of little moment. He is acknowledged by the law to be “one of the most ancient officers in the realm for the conservation of the peace.” 4 Inst. 265. Lord Bacon observes that though the high constable’s authority hath the more .ample circuit, ‘“ yet I do not find,” says he, “that the petty constable is subordinate to the high constable, or to be ordered or commanded by him.” “ The original and proper authority of a high constable, as such, seems to be,” says Burns, “the very same and no other within his hundred as that of the petty constable withir his‘vill (village), and therein most probably he is coeval with the petty constable.” “Every high and petty constable are, by the common law, conservators of the peace.” 2 Hawk. P. C. 98. Dalt.c.1. He may arrest any person without a warrant who shall make an affray or assault upon another, in the presence of the constable: and if it be inconvenient to take him before a justice, he may take him to prison until he shall find surety of the peace. But he may not arrest any man, on the complaint of another, without he has a warrant. In the discharge of these highly responsi- ble duties, the constable should be especially careful never to permit his feelings to be enlisted, or his passion aroused. Let him so conduct himself that every sensible bystander shall be disposed to take part with him, and he may be sure that he is faithfully discharging his duty. It is no inconsiderable evidence of the confidence and authority reposed in a constable, that “if he shall be assaulted in the execution of his office, he need not go back to the wall, as private persons are bound to do; and, if in the striving 218 CUNSTABLES. together the constable kills the assailant, it is no felony; but, if the constable is killed, it shall be considered premeditated murder.” H. P.C.37. The necessity of a aonstable being temperate in all his habits, is manifest from the power reposed in him.’ A habit of drunkenness from liquor, or passion, should disqualify any man from being elected constable. The peace and safety of the community are greatly endangered when committed to the care of a constable of quick temper, violent passions, or habits of intoxication. In this commonwealth, where the people elect the constable from among themselves, the election of such a constable is,a reproach to the whole community. Every man, woman and child, in the district, is interested in the election of an honest, active and conscientious man as consta- ble. ‘He should be honest to execute his office truly, without malice, affection or partiality—he should have knowledge to know what he ought to do, and ability, as well in estate as body, that he may intend and execute his office, when need is, diligently, and not for impotence or poverty neglect it.” Aged persons, incapable by weakness, should never be elected to do the duties of this arduous office. In Pennsylvania, the constable exercises all the common law rights and privileges which that officer exercises in England, except, which is very rare, where they have been modified by our constitution or laws. In addition, constables in Pennsylvania have many civil duties imposed upon them by acts of assembly, which are unknown to such officers in England. The sheriff is the executive officer of the courts where he attends, so is the constable the executive officer of the alderman or justice of the peace where he attends. He is bound to serve all legal process which the magistrate shall issue, and he is punishable if he do not serve it, unless he be able to show that he was otherwise officially engaged at the time he was called upon to execute the process. In case of resistance by a defendant to a constable, in the execution of civil process issued by a justice of the peace, he has the same power as the sheriff to raise the power of the county for his assistance. There is as much reason why constables, in enforcing the law, should be invested with the power necessary to put down resistance and preserve the peace, as there can be in the case of sheriffs. Acquiescence in the laws is the duty of every citizen; and in a government of laws, such as ours emphatically is, it is the duty of every citizen to aid in their execution. Ifa person refuse to assist the constable, when required, on resistance being made, he is indictable for such refusal. 5 Wh. 437, 440. II. ELEcTION AND QUALIFICATION OF CONSTABLES. The several acts that have been passed relating to the election of constables in the different boroughs,(a) wards(b) and townships,(c) in the several counties in this commonwealth, shall be so altered and construed as that each of the electors of each borough, ward and township, shall annually (d) vote for only so many candi- dates for the office of constable as there shall be persons required to fill said office in their respective boroughs, wards or townships; the candidates receiving the highest number of votes shall be declared elected; and all existing laws incon- erent ae this section be and they are hereby repealed. Act 9 April 1849, § 3. urd. 181. No person shall be eligible to any township office unless he be an elector of the township for which he shall be chosen. Act 15 April 1834, § 84. Purd. 963. The election for the said township officers shall be held during the same hours, and by the persons appointed to hold the election of inspectors and assessors, on the third Friday in March of every year, except in the counties of Bradford, Susque- hanna, Potter, McKean, Clearfield, Lycoming, Wayne and Pike, the township elec- tions of which shall be held on the third Friday in February of every year.(e) Act 2 July 1839, § 53. Purd. 963. (a) Each borough to elect one, by act 8 April 1851, 3.16. Purd. 119, (5) Each ward in the city of Philadelphia to elect two, by act 2 February 1854, 2 26. P. L. 86. By act 25 March 1868, the num- ber of constables in the city of Philadel- phia, is to be the same as that of aldermen; aud whenever the number of aldermen is in- creased, the number of constables is to be also increased. P. L. 185. (c) Each township to elect one by act 15 April 1834, Purd. 182. (@) To be elected for two years, in Phila- delphia, with the exception of certain wards, by act 25 March 1858. P. L. 185. (ec) in Tioga county, on the Friday preced- CONSTABLES. 219 The acting constable in every ward, town, township or district in this common- wealth shall, within six days after the election for a constable or constables has been held, give notice in writing to the person or persons who shall be chosen of his or their election to the said office; and if such acting constable shall neglect so to do, he shall forfeit to the commonwealth the penalty of sixty dollars. Act 1 March 1799, § 6. Purd. 182. It shall be the duty of every person elected to the office of constable in any town- ship, to appear on the first day of next court of quarter sessions of the same county, to accept or decline such office; and if any person so elected and duly notified thereof, shall neglect or refuse so to appear, he shall forfeit to the township the ee dollars, to be levied by order of the court. Act 15 April 1834, § 107. urd. 182. The court to which a return as aforesaid shall be made, shall appoint [one of] the persons returned to be constable of the township for the term of one year from the date of his appointment, and until a successor shall be duly appointed, if it-shall appear to the satisfaction of the court that he possesses a freehold estate in his own right, clear of all incumbrances, of the value of at least one thousand dollars, or if he does not possess such freehold estate, he shall give bond with at least one suffi- cient surety, to be approved of by the court, in the sum and manner hereinafter directed. Ibid. § 108. 7 If the electors of any township shall fail to elect [two] persons for the said office, or if [both of] the persons returned should be incompetent with respect to estate or unable to give the required security, or should refuse to take upon themselves the said office, or in the event of a vacancy in the office, by death or otherwise, it shall be the duty of the said court to appoint some other respectable person possessing a freehold estate of the value aforesaid, or who shall give the security required, to serve as constable until the next annual election, and until a successor be duly appointed. Ibid. § 109. - If any person who shall be duly elected and appointed a constable, or who shall be appointed as such by the court in the cases hereinbefore mentioned, and who shall possess a freehold estate of the value aforesaid, shall refuse or neglect to take upon himself the said office, or shall not procure a deputy to undertake the duties thereof, he shall be fined by the court in the sum of forty dollars, for the use of the proper township. Ibid. § 110. ‘ Providgd, That no person shall be liable to the penalty aforesaid who shall have served personally or by deputy in the office of constable of the same township within fifteen years of his said election or appointment, or having been elected or appointed within that period shall have paid the penalty aforesaid. Ibid. § 111. The bond to be given by a constable shall be in such sum not less than five hundred dollars, nor more than three thousand dollars, as the court shall direct, and shall be taken by the clerk of the court (a) in the name of the commonwealth, with ‘conditions (b) for the just and faithful discharge by the said constable of the duties of his office; and such bond shall be held in trust for the use and benefit of all per- sons who may sustain injury from him in his official capacity, by reason of neglect of duty,(c) and for the like purposes and uses as sheriffs’ bonds are given and held.(d) Thid. § 112. ing the first Monday in February; by act 18 April 1858, 3 31. P. L. 529. In Armstrong county, on the Friday preceding the first Monday in March, by act 18 April 1856. P. L. 418. In Clinton county, on the 4th Friday in February, by act 28 January 1858. P. L. 5. In Forest county, on the Ist Monday in February, by act 25 January 1859. P. L. 8. And in the city of Philadelphia, at the general election, on the 2d Tuesday in October, by act 21 March 1861. P. L. 165. (a) If it be found among the records of the office in its proper place, though no entry of the approving and filing of it be shown, it will be presumed. 7 Barr 241. See 28. & R. 420. (5) A condition that a constable shall “‘exe- cute all writs and process to him directed,” . pe greater than required by law. 7 Barr 240. (c) A party aggrieved may either bring suit on the bond, or proceed against the constable under the 19th section of the act 20 March 1810. 68. & RB. 245. 8S. & BR. 414. 3 W. 208. 4 W. 217. (d) The sureties are liable for the act of the officer in levying upon the goods of a stranger. 6 W. & S. 518. 5 B. 184, For money collected under a Jandlord’s warrant. 4P.L. J. 180. And for money collected on a warrant against the constable of an adjoin- ing township. 7S. & R. 849. A judgment 220 CONSTABLES. Suits against the sureties mentioned in the 3d section of this act shall not be sustained, unless‘the same be instituted within three years after the date of such obligation. Act 29 March 1824, § 4. Purd. 182. . : In every case in which any pecuniary penalty or forfeiture is imposed by this act, the proceedings for the recovery of the same shall be by indictment in the court of quarter sessions of the proper county, or to be recovered as debts of equivalent amount are by law recoverable, unless herein otherwise specially provided: Provided always, That aldermen or justices of the peace shall not have jurisdiction of any suit or action, for the recovery of any penalty imposed by this act for official misconduct, and that such suit or, action, when brought in the court of common pleas of the proper county, shall have a preference for trial over all other actions. Act 15 April 1834, § 115. Purd. 182. Nothing in this act contained shall be so construed as to repeal any special pro- vision heretofore made by law, for any city, borough, district or township in this commonwealth. Ibid. § 116. III. APPOINTMENT OF DEPUTIES. No deputy (a) shall be appointed by any constable, either by general or partial deputation, without the approbation of the court of quarter sessions of the proper county first had and obtained, except the same be made specially, in some civil suit or proceeding, at the request and risk of the plaintiff or his agent. Act 15 April 1834, § 113. Purd. 182. In the event of the death, inability or refusal to act of his deputy, the constable of any township may, with the approbation of any one of ‘the judges of the court of quarter sessions of the same county, appoint another deputy, with full autho- rity (6) to act as such until the next regular sessions of such court, and, for the acts of such deputy,(c) the constable and his sureties shall be liable as in other cases, and in every such case the constable shall file a written copy of such depu- tation in the office of the clerk of the court of quarter sessions of such county. Thid. § 114. 7 IV. REMovVAL FOR MISCONDUCT, ETC. The courts of quarter sessions of each county shall have full power, on petition of any surety of any constable, setting forth the complaint, and verified by affidavit, to inquire into official conduct of such constable, and in all cases where said court shall be satisfied that from habits of intemperance or neglect of duty, any con- stable is unfit and incompetent to discharge his official duties, it shall be lawful for said courts, respectively, to decree the removal of such constable from office, unless such constable gives such additional surety as the court may direct, and to appoint a suitable person to fill tlie vacancy who shall have a freehold estate worth at least one thousand dollars beyond incumbrance, or give security, as in other cases of constables, to continue in office until the next succeeding election for constable, and until a successor be duly qualified ; and in all cases where any constable, elected or appointed, shall not have given security, and has so neglected his business, or the situation of his estate is such as to render it unsafe to intrust him with the execution of official duties, the said courts shall also have power to require such constable to give security in the same sum and in the same manner required by law from other constables who have not such estate as exempts them from giving security, and such security thus given shall be for the same uses and as valid in law as the security given by said other constables, and in default of giving such against the constable for official misconduct, so appointed can execute all process. 3 TP. R. is conclusive against the sureties as to the 286 misconduct and the extent of the damage. 17 8. & BR. 854. 8 W. 398. 5 Wh. 144. 7 Barr 240. But they may take advantage of any defence personal to themselves. 178. & R. 3854. (4) A constable who has appointed a deputy, is still capable to act and execute process. 3 P. RB. 286. (o) A general deputy of a constable when (ec) A constable would be liable for the mis- feasance of a deputy who derived his autho- rity from a special deputation made by his deputy. 9 W. 489. But one who employs a special constable, deputed at his own instance, must bear the consequences of his misfeasance, = pune of any other servant employed by him id. CONSTABLES. , 221 security within such time as the said court shall adjudge reasonable, said court shall decree the removal of such constable from office, and fill the vacancy in the same manner as is provided herein for cases of constables incompetent to act from habits of intemperance. Act 27 May 1841, § 14. Purd. 183. V. THEIR DUTIES AND LIABILITIES IN CIVIL CASES. Every justice of. the peace rendering judgment as aforesaid, shall receive the amount of the judgment, if offered by the defendant or his agent, before execution, and pay the same over to the plaintiff or his agent when required; for which ser vice he shall, if exceeding five dollars and thirty-three cents, be allowed [twenty- five cents] by the defendant, in addition to his usual fees ; (a) and if the said justice shall neglect or refuse to pay over on demand the money so received, to the plain- tiff or his agent, such neglect or refusal shall be a misdemeanor in office; and if the amount of the judgment is not paid to the justice as aforesaid, he shall grant execution, if required by the plaintiff or his agent, thereupon, if for a sum not exceeding five dollars and thirty-three cents, forthwith, and for any further sum, after the time limited for the stay of the same; which execution shall be directed to the constable ‘of the ward, district or township where the defendant resides, or the next constable most convenient to the defendant,(6) commanding him to levy the debt or demand, and costs, on the defendant’s goods and chattels; and by virtue thereof shall, within the space of twenty days next following, expose the same to sale, by public vendue,(c) having a due notice of the same by at least three advertisements,(d), put up at the most public places in his township, ward or district, returning the overplus, if any, to the defendant; [and for want of sufficient distress, to take the body of such defendant into custody, and him or her convey to the common jail of the county ; and the sheriff or keeper of such jail is hereby directed to receive the person or persons so taken in execution, and him, her or them safely keep, until the sum recovered and interest thereon accrued from the date of the judgment, together with costs, be fully paid, and in default of such keeping to be liable to answer the damage to the party injured, as is by law pro- vided in case of escapes ;](¢) or in case no goods and chattels can be found, and the defendant be possessed of lands or tenemenis, the plaintiff may waive impri- soning the defendant, and proceed by a transcript to the prothonotary aforesaid : Provided, That executions against executors or administrators shall only be for the assets of the deceased. Act 20 March 1810, § 11. Purd. 183. In all cases where a constable levies an execution issued from a justice of the peace, he shall indorse the goods or chattels so levied on the execution or schedule thereto annexed, which levy shall be a lien on such chattels for twenty days after levying the same, and no longer; and the constable making such levy is hereby authorized and empowered to take a bail-bond in the following or like words, viz.: “ We, A. B. and C. D., or either of us, are held and firmly bound unto E. F., con- stable, in the sum of » upon condition that the said A. B. shall deliver unto E. , at the F. aforesaid the following goods and chatiels (a) For the fees allowed for this service by the present fee-bills, see ante p. 104, note h. : (5) It is the universal practice for justices to issue their warrants and executions to any constable within the county. 7S. & R. 353-4. And the sureties of such constable are respon- sible for their due execution. Ibid. A war- rant issued to , constable, if executed by the proper constable, is good. 6 B. 123. The justice ig to judge who is the constable most convenient to the defendant. 13 8. & R. 336. But a sale by a constable of one township, under an execution directed to the constable of another township, passes no title to the property; he is a mere trespasser. 3 Barr 849. And the sureties are only responsible where the execution is delivered to him in , on the day of his official capagity by the justice. 2 Barr 49. (c) A sale to the plaintiff, no person but the constable being present, is illegal and void. 3H. 90. A constable has no right to conduct a sale under an execution in a pub- ‘lic street, to the obstruction of the people: such act is indictable as a public nuisance. 13S. & RB. 403. It is his duty to deliver possession to the purchaser, but having done 80, his duty in reference to the goods is at an end. 2 Phila. RB. 89. (d) If he sell any portion of the goods without levy or advertisement, he is liable. 1 Barr 238. : a (e) Since the act to abolish imprisonmen for debt, no execution can issue against the body in cases of contract. 222 house of , which is taken in execution at the suit of G. H. against A. B., or pay the amount of the said execution with costs. Witness our hands and seals this — day of ’? But if the said defendant shall not deliver the chattels so specified in such bond, or pay the amount of such execution, the constable may then pro- ceed to the sale of such goods or chattels so levied, Provided, the lien created by such levy be not expired; but should the lien be expired, the justice may issue an alias execution, which may be proceeded on as aforesaid, or the~constable taking such bond may assign it to the plaintiff, who may recover the same before any jus- tice of the peace without stay of execution: Provided always, That any constable taking such bail shall be accountable to the plaintiff for the sufficiency thereof, notwithstanding such assignment. Ibid. § 18. Whenever a constable shall levy on the goods and chattels of a defendant as is directed by the 11th section of the act to which this is a supplement, he shall indorse the time.of such levy on the execution, and no execution issued by a jus- tice of the peace shall be a lien on the property of the defendant before levy made thereon. Act 28 March 1820, § 4. Purd. 184. In all cases where any constable shall collect or receive the debt, interest and costs, or any part thereof of any execution, it shall be his duty to make out and deliver to the defendant or defendants in such execution a bill of particulars of his fees and charges, together with a receipt, signed by him for the same, if paid ; and if any constable shall neglect or refuse, upon application to him made by the party interested, to give such bill or receipt, he shall, for such neglect or refusal, forfeit and pay the sum of ten dollars, to be recovered in the manner and for the use prescribed in the act to which this is a supplement. Act 28 March 1820, § 3. Purd. 184. On the delivery of an execution to any constable, an account shall be stated in the docket of the justice, and also on the back of the execution, of the debt, interest, and costs; from which the said constable shall not be discharged, but by producing to the justice, on or before the return day(a) of the execution, the receipt of the plaintiff, or such other return as may be sufficient(6) in law; and in case of a false return, or in case he does not produce the plaintiff’s receipt, on the return day, or make such other return as may be deemed sufficient by the justice, he shall issue a summons directed for service to a constable, or to some other fit person who shall consent to serve the same, and having so consented, by accepting of such process, shall be bound to execute the same, under a penalty of twenty dollars, to be recovered as other fines are recoverable by this act; but should not a constable, or other fit person conveniently be found to serve the process as aforesaid, the justice shall di- rect it to a supervisor of the highways of the township, ward or district, where such constable resides, whose duty it shall be to serve the same under the penalty afore- said; commanding the constable to appear before him on such day as shall be men- tioned in the said summons, not exceeding eight days from the date thereof, and then and there show cause why an execution should not issue against him for the amount of the first above-mentioned execution; and if the said constable either neglects to appear, on the day mentioned in such summons, or does not show suf- ficient cause(c) why the execution should not issue against him, then the justice CONSTABLES. (a) The mere omission to returp'the execu- tion within twenty days, will not render the constable liable, if he have sufficient cause for the delay. 6 W. & S, 534. (5) Of the sufficiency of the return, the justice must judge in the first instance, but his decision is subject to review; and the return must be in writing. 6 W. & S. 457, 8 W. 220. 4 Wh. 656. And see 1 Ash. 26, 160. 1M. 210. The constable cannot discharge the defendant from liability, by the settle- ment of an account of previous money trans- actions with himself, and passing receipts, no money being actually paid. 2 R..199. (c) It is a good defence that the judgment was paid before the execution issued; but the issuing of a subsequent execution does not discharge the constable from the liability incurred. 2 W. & S. 229. In an action against a constable for an insufficient return, it is not competent for him to prove that the pro- perty levied on did not belong to the defend- ant in the execution. If he have reason to doubt about the ownership of it, he may require the plaintiff to indemnify him; and if he refuse ‘ sell, not having done so, he becomes liable. 8 W. 220. The plaintiff is not bound to offer an indemnity before it is required by the officer ; nor will every frivolous objection protect him, as he will be liable for a false return, unless there was reasonable ground for apprehension that he would be endangered by 228 shall enter judgment against such constable, for the amount of the first above-men- tioned execution, together with costs, on which judgment there shall be no stay of execution, and upon application of the plaintiff or his agent, the said justice shall issue an execution against the constable for the amount of such judgment, which execution may be directed to any constable of the county, or other fit person accept- ing thereof, or to a supervisor, as aforesaid, whose duty it shall be to execute the same: Provided always, That nothing in this act contained shall in any manner impair or alter the proceeding as heretofore established with regard to insolvent debtors, and their discharge on a full surrender of their property. Act 20 March 1810, § 12. Purd. 184. ; So much of the act entitled “An act to amend and consolidate with its supple- ments, the act entitled ‘An act for the recovery of debts and demands not exceed- ing one hundred dollars before a justice of: the peace, and for the election of constables, and for other purposes,’’’ passed the 20th of Mareh 1810, as provides that the justice shall enter judgment against a constable for the amount: of an execution’ together with costs, on which judgment there shall be no stay of execu- tion, shall not be construed to deprive the constable of the right of appeal (a) to the court of common pleas of the proper county, upon such conditions and under like limitations, as in the case of other defendants. Act 13 October 1840, § 12. Purd. 184. In all cases where judgment shall be rendered by an alderman or justice of the peace, against any constable in this commonwealth, under the 12th section of the act to which this is a further supplement, in addition to the remedies provided by the existing laws, it shall be lawful for the plaintiff or plaintiffs, his, her or their legal representatives, to take out a transcript of such judgment, and file the same in the office of the prothonotary of the court of common pleas of the proper county; and it shall be the duty of the prothonotary,(6) at the request of such plaintiff or. plain- tiffs, to issue a fiert facias or capias ad satisfaciendum, against such constable, to be proceeded in as in other cases; or the said plaintiffs may apply to the court of common pleas, who shall have power to issue an attachment against such con- stable: Provided, That such proceedings shall in no case be deemed or construed to exonerate the surety or sureties of such constable. Act 29 March 1824, § 2. Purd. 184. Where any constable shall refuse or neglect to pay over to the defendant or defendants, his or their agent or legal representatives, the overplus money which he or his deputy may have made or received upon any execution or executions, then and in such case the party or parties aggrieved, may apply to the alderman or justice of the peace who issued the process, who shall thereupon proceed against such con- stable in the manner prescribed by the 12th section of the act to which this is a supplement, in cases where the constable makes a false return, or neglects to return the execution; and if upon such proceedings, the justice shall receive the overplus money, or if it shall be voluntarily paid to him at any time by the constable, he shall, in either case, pay over the same to the defendant or defendants, or his or their agent or legal representatives, without any fee for making such payment. Act 28 March 1820, § 2. Purd. 185. ‘If any constable shall receive money by virtue of an execution or other process, CONSTABLES. | -the levy and sale. Ibid. If he refuse to receive a bond of indemnity on the ground that the security is insufficient, and declare that he will not proceed unless certain per- sons named by him are given as sureties, this is equivalent to a refusal to execute the writ, and dispenses with the tender of further security. 2 Phila. R. 288. If he have accepted indemnity from the plaintiff under a claim to the property levied on made by a third party, he is bound to proceed, and is estopped from showing that the goods did not belong to the defendant. 2 H. 510.' And where the execu- tion has not been returned.within the time limited, it is incompetent for the constable to prove that the defendant had no property, or that the defendant’s wife had died the night before he proceeded to execute the writ, in consequence of which, through feelings of humanity, he failed to execute it. 7 Leg. Int. 183. 3 Am. L. J. 129. Nor can the constable disobey the execution, where the justice’s pro- ceedings are irregular; as where the justice had proceeded by attachment, without taking a legal bond. 11 Leg. Int. 126-7. (a) The plaintiff as well as the constable ia entitled to an appeal. 4 W. & S. 278. (6) A previous execution by the justice is not necessary. 3 W. 278, 224 CONSTABLES. and shall neglect or refuse upon application to him made by the party interested, to pay the amount thereof to the party entitled to receive the same, or to his, her or their agent or legal representatives: he shall be deemed guilty of a misde- meanor in office, and upon conviction thereof in the court of general quarter ses- sions of the peace of the proper county, he shall be sentenced to pay, at the dis- cretion of the court,'a fine of not less than twenty dollars, nor exceeding one hundred -dollars, and shall stand committed until the money so withheld shall be paid, to- gether with the interest, fine and costs, and moreover, shall, for seven years there- after, be incapable of holding the office of constable, or the appointment of deputy- constable. Ibid. § 7. ‘ Any constable who has or may hereafter give security agreeably to law for the faithful performance of the duties of his office, and afterwards, on neglecting or re- fusing to perform such duties, shall have judgment rendered against him for such neglect or refusal, arid on being prosecuted for the recovery of such judgment, be- comes insolvent,(a) abandons his country, or from any other reason it becomes impracticable for such judgment or judgments to be recovered from such constable as aforesaid, or where a constable makes such default, and abandons his country before judgments are had against him, then and in such cases only the justice (6) before whom the. judgment or judgments stand unpaid shall be and is hereby au- thorized and empowered to issue a scire factas, and proceed against such bail (c) for the recovery of judgments had as aforesaid, in the manner that constables are now suable, saving only the right of appeal to such sureties. Act 20 March 1810, § 19. Purd. 185. In all cases where any constable has been or shall be intrusted with the execution of any process, for the collection of money, and by neglect of duty has failed or shall fail to collect the same, by means whereof the bail or security for such constable shall be compelled to pay the amount of any judgment or judgments ; such payment shall vest in the person or persons paying as aforesaid, the equitable interest in such judg- ment or judgments, and the amount due upon any such judgment or judgments may be collected in the name of the plaintiff or plaintiffs for the use of such person or persons.(d) Act 24 April 1829, § 3. Purd. 185. It shall not be lawful for any deputy-constable, or any person or persons at his direction or request, and for his use either directly or indirectly, to purchase any goods, wares or merchandise taken in execution and sold by the principal of such deputy-constable; nor shall it be lawful for any constable, or for any person at his request and for his use, in any township, city or district in which there are more constables than one, to purchase any goods, wares or merchandise taken in execution and sold by any other constable within such township, city or district; and if any constable, deputy-constable or other person shall be convicted before the justices of the court of general quarter sessions of the peace of offending against or violating any of the provisions of this section, he, she or they so offending, upon conviction thereof, shall forfeit and pay, at the discretion of the court, any sum not less than twenty dollars nor exceeding one hundred dollars, the one half whereof shall be paid to the person informing, and the other half to the use of this commonwealth, and moreover, shall for seven years thereafter be incapable of holding the office of eoetetle or the appointment of deputy-constable. Act 28 March 1820, § 6. urd. 185. No sheriff, constable or other officer shall sell or dispose of, by way of vendue, at any place or Flaces, within two miles of the statehouse, in the city of Philadel- phia, or within the chartered limits of the city of Pittsburgh, any lands, tenements, (a) His insolvency may be established by parol evidence. 7 W. 292. 8 W. 398. The law, in such case, requires no higher standard of diligence than the ordinary application of its own process. 6C. 176. But a return of nulla bona, to an execution issued by the justice, is not, in itself, sufficient evidence of insolvency, as he may have real estate. 7 W. 298. 6C. 210, (4) The jurisdiction of justices, under this section, is not taken away by the acts giving jurisdiction to the common pleas in suits on constables’ bonds. 68. & R. 245. 8S. &R. 414, 3 W. 208. 4 W. 217. dae The constable need not be joined. 8 W. (d) The constable who, through neglect of duty, becomes liable for, and is compelled to pay the amount of an execution, has no such right. 6 W. 228. 7 W. 358. CONSTABLES. 225 goods or chattels, other than such as are taken in execution and liable to be sold by order of law, or distrained for rent in arrears; and if any sheriff or constable or other officer fraudulently or wilfully violate or evade this provision of this act, it shall be deemed to be a misdemeanor in office, for which the offender may be prose- a a eelounen in any court of competent jurisdiction. Act 1 April 1826, §7. urd, 185. ‘ In all suits which may hereafter be instituted in any court of this commonwealth, in which the sheriff of any county may be a party,(a) when there is no coroner in commission to serve process, it shall be lawful for any constable in the county where the process has been issued to serve the same, and to perform the duties in relation thereto, which coroners are authorized to do under the laws of this commonwealth. Act 22 April 1850, § 19, Purd. 186. VI. THEIR DUTIES IN REGARD TO ELECTIONS. 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. Act 2 July 1889, § 1. Purd. 186. The constable or constables of every township within this commonwealth shall give public notice of the township elections, by ten or more printed or written advertisements, affixed at as many of the most public places therein, at least ten days before the election, and in every such advertisement they shall enumerate, designate and give notice as sheriffs of counties in cases of general elections are directed by the Ist and 2d divisions of the 13th section of the act to which this is a supplement; (6) and in case of the neglect, refusal, death or absence of the afore- said constable or constables, the duties herein enjoined on them shall be performed by the supervisors or assessor of the proper township; but said supervisors or assessor of the proper township shall not be required to give more than five days’ notice; and said elections shall be held and conducted under the regulations not inconsistent herewith, prescribed in the aforesaid act; but nothing in this act, or in the act to which this is a supplement, contained, shall be construed to prohibit a jadge, inspector or clerk of election from being voted for to fill any township office, or render either or any of them ineligible to hold the same. Act 13 June 1840, § 2: Purd. 186. : Constables, supervisors or assessors, as the case may be, of any ward, township, ‘incorporated district or borough, shall be allowed and paid, out of the county trea- sury, two dollars for advertising ward, township, district and borough elections ; said constables shall also be allowed and paid, as aforesaid, twenty cents for delivering to each township officer a certificate of his election, as directed by this act, and the act to which this is a supplement. Act 13 June 1840, § 11. Purd. 186. It shall be the duty of every mayor, sheriff, deputy-sheriff, alderman, justice of the peace, and constable or deputy-constable of every city, county and township or district within this commonwealth, whenever called upon by any officer of an elec- tion, or by any three qualified electors thereof, to clear any window or avenue to any window, at the place of the general election, which shall be obstructed(c) in such a way as to prevent voters from approaching the same, and on neglect or refusal to do, on such requisition, said officer shall be deemed guilty of a misde- meanor in office, and, on conviction, shall be fined in any sum not less than one hundred\and not more than one thousand dollars; and it shall be the duty of the respective constables of each ward, district or. township within this commonwealth, to be present in person or by deputy, at the place of holding such elections in said ward, district or township for the purpose of preserving the peace as aforesaid. Act 2 July 1839, § 111. Purd. 186. (a) The act 10 April 1848, 2 2, confers the officers to be elected. 2. Designate the place same powers, in all cases, against the sheriff at which the election is to be held. or his sureties, when there is no coroner in (c) No portion of the people possess the commission. P. L. 441. right to gather round the polls and remain (2) That is, he shall—1., Enumerate the there in such numbers as to obstruct the 226 CONSTABLES. 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 rove the same; and it shall be the duty of the said court to cause indictments to te preferred before the grand jury against the persons so offending. Ibid. § 112. If it shall be made appear to any court of quarter sessions of this commonwealth that any riot or disturbance occurred at the time and place of holding any election under this act, and the constables who are enjoined by law to attend at such elec- tions have not given information thereof, according to the provisions of this act, it shall be the duty of said court to cause the officer or officers, so neglecting the duty aforesaid, to be proceeded against by indictment for a misdemeanor in office, and on conviction thereof the said officer shall be fined in any sum not exceeding one hundred dollars. Ibid. § 113. It shall be the duty of the several courts of quarter sessions of this common- wealth, at the next term of said court after any election shall have been held under this act, to cause the respective constables in said county to be examined on oath, as to whether any breaches of the peace took place at the election within their respective townships, wards or districts; and it shall be the duty of said constables respectively to make return thereof as part of their official return at said court. Ibid, § 114. If the constables or supervisors of any township, ward or district shall neglect or refuse to perform the duties herein required of him or them, they shall respectively, on conviction, be fined in any sum not less than fifty nor more than one hundred dollars.(a) Ibid. § 97. It shall be the duty of the said inspectors and judge to make out a certificate of the election of each township officer aforesaid, which shall be signed by them and delivered to the constable of the proper ward, district or township, and by him ‘delivered to the said officer, or left at his usual place of abode within six days there- after. Ibid. § 54. Each and every constable of this commonwealth, except in the city and county of Philadelphia, who shall attend at the general and township elections in their several districts as required by law, shall receive for said services one dollar per day from the county fund. Act 31 March 1854, §1. P. L. 250. ; VIL. AcTIoNs AGAINST CONSTABLES. No action shall be brought against any constable or officer, or any person or persons acting by his or their order, and in his aid, for anything done in obedience to any warrant under the hand and seal of any justice of the peace,(6) until demand hath been made, or left at the usual place of his abode, by the party or parties intending to bring such action, or by his, her or their attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, duly certified under his hand, and the same hath been neglected or refused for the space of six days after such demand; and in case, after such demand and com- pliance therewith, by showing the said_warrant and giving a copy thereof, certified as aforesaid to the party demanding the same, any action shall be brought against such constable, or other person or persons acting in his aid, for any such cause as aforesaid, without making such justice or justices, who signed or sealed the said approach of the electors; it is the duty of the J. MS. * constable, either at the request of the citizens, or under the direction of the officers of the election, to remove such obstruction, and open an avenue to the polls; in discharging his duty, he ought to give notice to the people to remove themselves, before proceeding to violent measures; but, having given such notice, he has the right to use as much force as may be necessary to accomplish the object, and every citizen who is called on to assist him is bound to de so. Com. v. Hamilton, Lancaster Q. 8. 22 January 1849, Lewis, P. (a) By 2 128, to be recovered by indictment in the quarter sessions; and all prosecutions to be commenced within one year. () Trespass against a constable for seizing and selling plaintiff’s goods, under an execu- tion out of his district, is within the act. 11 S. & R. 185. But not an action for an escape. 8 Barr 405. Or for taking the goods of A. under a warrant to levy on the goods of B. 5 P. L. J. 181. See 1 Br. 348. Or for taking illegal fees under color of an execution. Keller v. Hammer; Brightly on Costs 159. CONSTABLES. 227 warrant, defendant or defendants, on producing and provmg such warrant at the trial of such action, the jury shall give their verdict for the defendant or defend- ants, notwithstanding any defect or defects of jurisdiction in such justice or jus- tices ;(a) and if such action be brought jointly against such justice or justices, and also against such constable or other officer, or person or persons acting in his or their aid as aforesaid, then, on proof of such warrant,(b) the jury shall find for such constable or other officer, and person or persons so acting as aforesaid, notwith- standing such defect of jurisdiction as aforesaid; and if the verdict shall be given against the justice or justices, in such case the plaintiff or plaintiffs shall recover his, her or their costs against him or them, to be taxed in such manner, by the proper officer, as to include such costs as such plaintiff or plaintiffs are liable to pay to such defendant or defendants, for whom such verdict shall be found as aforesaid : Provided always, That where the plaintiff, in any such action against any such justice of the peace, shall obtain a verdict, in case the justices before whom the cause shall be tried, shall, in open court, certify on the back of the record that the injury for which such action was brought, was wilfully and maliciously committed, the plaintiff shall be entitled to have and receive double costs of suit. Act 21 March 1772, § 6. Purd. 187. ; ' Provided always, That no action shall be brought against any justice of the peace for anything done in the execution of his office, or against any constable or other officer, or person or persons acting as aforesaid, unless commenced within six months after the act committed.(c) Ibid. § 7. In all cases where any alderman or justice of the peace of this commonwealth shall issue a summons, warrant of arrest or execution in any civil suit against any constable or constables for any debt or demand alleged to be due by him or them, in his or their individual or private capacity, he shall direct such summons, warrant of arrest or execution to any other constable in the city or county in which the said justice may reside, who shall be authorized and bound to serve or execute the same in the manner prescribed by the.act to which this is a supplement, under a penalty of twenty dollars, to be recovered as other fines are recoverable by the same act; and if the constable to whom such process shall be directed, shall neglect or refuse to make return of the same, or having made the money or any part of it, upon the execution, refuses or neglects to pay over or account for.the same, he shall be proceeded against in like manner, and be subject to like proceedings as constables in other cases are liable to, agreeably to the provisions contained in the i section of the act to‘which this is a supplement. Act 28 March 1820, § 1. urd. 187. VIII. MiscELLANEOUS PROVISIONS. The constables of the respective wards and townships shall make return of re- tailers of liquors, as now provided by law; and in addition thereto it shall be the duty of every such constable, at each term of the court of quarter sessions of the respective counties, to make return on oath or affirmation, whether within his knowledge there is any place within his bailiwick kept and maintained in violation of this act, and it shall be the especial duty of the judges of all said courts to see that this return is faithfully made; and if any person shall make known in writing, with his or her name subscribed thereto, to such constable, the name or names of any one who shall have violated this act, with the names of witnesses who can prove the fact, it shall be his duty to make return thereof on oath or affirmation to the court, and upon his wilful failure to do so,-he shall be deemed guilty of a misdemeanor, and upon indictment and conviction shall pay a fine of .filty dollars, (a) Where a constable has pursued his warrant, he can be affected with want of juris- diction in the magistrate, only where he is sued alone, having, after a proper demand, ‘refused to furnish a copy of the warrant for the space of six days. 5 S. & R. 802. 1B. 124. 3B. 219. A misrecital in the body of an execution does not render it void, nor is the constable a trespasser in executing it; he is justified under the provisions of this act. 2 W, 424. : (6) It seems the warant may be given in evidence under the general issue. 8 B. 218. ‘(c) The limitation may be taken advantage of, under the general issue. 9S. & R. 14. 228 CONSTABLES. and be subject #2 imprisonment at the discretion of the court, of not less than ten nor more than thirty days. Act 31 March 1856, § 33. Purd. 187. oe ~ No prosecutor or informer in any prosecution for the illegal sale of intoxicating liquors, shall receive any portion of the fine imposed on the defendant in any case where such prosecutor or informer is a witness for the commonwealth; and in em / case of the conviction of a person returned by a constable, such constable shall’ receive two dollars, to be taxed in the costs. Act 20 April 1858, § 12. Purd. 666. No person who keeps in his store or wareroom any hogsheads, stand casks or liquor pipes, or who keeps a grocery store, shall receive license to vend intoxicating liquor by less measure than one quart; and constables are hereby required to make return of all persons engaged in the sale of spirituous, vinous, malt or brewed liquors in their respective districts, who shall have in their places of business any of the articles aforesaid, naming them and the location of their respective places of business; and if any such person shall have’a license to vend such liquors by less measure than one quart, the court may, on investigation, revoke the same; but such persons may, on complying with the laws on the subject, obtain license to sell by no less measure than one quart. Ibid. § 13. The several constables of this commonwealth, shall be allowed fifty cents each, for one day, for making their several returns to each quarter sessions of the peace of the proper county, and three cents per mile, each mile circular, counting from the residence of the constable to the court-house, to be paid out of the county a) Act 2 January 1827, § 1. 9 Sm. 253. It shall be the duty of the judges of the several courts of quarter sessions, oyer and terminer, and common pleas within this commonwealth, after the constables shall have made their returns on the first day of the sessions, to ascertain the num- ber of constables attending, and to select a sufficient number to attend during the term of the said court,-and to discharge the other constables, and to select for eve court thereafter until a new election of constables shall be held: Provided, That no constable shall.be obliged to serve more than one week at any one time, until the whole list shall have been gone through; and when an adjourned court shall be held, it shall be the duty of the sheriff to give notice to the constable or constables, selected by the judges to attend at the said adjourned court. Act 21 January 1818, § 1. Purd. 188. It shall be the duty of the clerk or prothonotary of any of the said courts, as the case may he, to certify the name or names of the constable or constables, and the number of days each constable shall have attended, to the commissioners of the proper county, who shall thereupon draw their warrant on the county treasurer in behalf of the said constable or constables, [for one dollar for each and every day he or they shall have respectively attended ;] Provided, That the said constables shall not be allowed pay for the day on which they shall make their returns to the court of gencral quarter sessions of the peace. Ibid. § 2. The judges of the several courts of this commonwealth shall have power to appoint a crier for the respective court, and so many tipstaves or constables as may be necessary to attend upon the court, and the said officers shall be paid by the respective county, such sums for each day’s attendance as the said judges shall allow. Act 14 April 1834, § 78. Purd. 188. , : _ By act of 8 May 1854, § 81, the board of directors or controllers, of any school district, in the event of their failtre, from any reason, to procure a collector of school taxes, may appoint to that office the constable of the school district, who shall forfeit for every refusal to execute the same, by proof thereof being made before any alderman or justice of the peace, the sum of fifty dollars, which shall be added to the school fund of the proper district. Purd. 172. IX. Powerns anv Dutrzs.—A constable is not bound to execute a warrant which has been issued without an oath to justify it, but merely on common rumor of the party’s guilt. 3 Binn. 38. If a warrant appear on the face of it to be dlegal, a constable is not bound to execute it, 3 Binn. 48. 2 Am. L. R. 484. (a) The same provision is contained in the fee-bill of the 18 April 1857. Purd. 469. CONSTABLES, 229 . The same rules of law which govern sheriffs in the execution of process from the higher courts govern the constables in the execution of a justice’s process, except where some statute intervenes. 2 Cow. 421. The provisions of the act of assembly, in relation to the constable who is to serve process, are only directory, and the justice is to judge who is “the constable most convenient to the defendant.” 12S. & R. 336. . A constable who has an execution put into his hands against a defendant cannot discharge such defendant from his liability to the plaintiff by settling an account with him, for money transactions heretofore had between them, and passing receipts, no money being actually paid. 2 R. 199. \ In case of resistance by a defendant to a constable in the service of a capias ad respondendum [a warrant] for debt, issued by a justice of the peace under the act of the 20th of March 1810, the constable may raise the power of the county for his assistance, in the same manner as the sheriff may, on writs of mesne process to him directed, and a person refusing to assist the constable when reqyired, on resistance being made, is‘indictable for such refusal. 5 Wh. 487. A constable is not bound to go up and down with an offender to get sureties, but he may keep him till sureties come to him, and then he is at liberty to go to any justice of the peace, provided it be not too far off, and the constable consent to it. Wood's Inst. 86. : Constables have no right to obstruct the passage of a public street, by holding sales upon the pavement, of furniture, &., taken in execution. 13 S. & R. 403. The keeper of the prison is bound to receive a person arrested and brought to him by a constable, and charged with a breach of the peace in his presence. 8 S. & R. 47. A general authority from a justice to a constable to alter the date of executions, instead of renewing them, or to fill up, or to alter process, is void. 10 Johns. 405. In Pennsylvania, a deputy constable may execute a domestic attachment, though it be directed to the constable: such is the proper direction. 3 P. R. 230. It is the duty of a constable to whom an execution is delivered, in all cases, to search for property before he takes the body of the defendant. 4 Wend. 639. A constable having an execution in his hands took an obligation from a stranger conditioned for the payment of the debt, interest and costs of the execution, or the delivery of property to satisfy the same, at a certain time and place; upon failure to do either, it was held, that although void as a statutory obligation, yet an action would lie on it, at common law, in the name of the constable, to the use of the plaintiff in the execution. 5 W. 468. A constable has no right to take upon himself to decide whether a defendant against whom he has an execution was discharged under the insolvent laws; it is his duty to arrest, and the party may obtain relief in the regular way. Com. Pleas, Phila. 1833. If an execution issued by a justice of the peace be set aside on certiorari, there can be no recovery on a bond taken by a constable for the delivery of property levied on such execution. 7 W. 353. A constable’s return to an execution must be made in writing. 5 W. & S. 457. One who employs a special constable, deputed at his own instance, must bear the consequence of his misfeasance, as he would that of any other servant employed by him. 9 W. 439. : A constable is bound to pursue, search for and arrest offenders, without other compensation than his legal fees, and cannot recover a reward for arresting a person against whom a warrant has been placed in his hands. 10 Barr 39. 5 Am. L. R. 98. The refusal, without sufficient excuse, to assist a constable in preventing the escape of a person in his custody, is an indictable offence. 6 Blackf. 277. _ A sheriff [or constable] who has legally levied an execution on property bound by a lien, has a right to discharge the lien, in order to get possession; for his writ gives him every implied power which may be necessary to the execution of it. 1 H. 215. 230 CONSTABLES. But if he levy on the goods of a stranger, he is not entitled to give in evidence in mitigation of damages, a payment out of the proceeds of sale of a bill for the freight of the goods levied on. Ibid. : . A constable has no right to remove property which has been levied on by another constable, and whilst it is subject to the first levy ; the right to the proceeds, how- ever, is determinable by law. 3 H 144. : A constable does not become a trespasser, by reason of the irregularity of the proceedings before the justice, if the latter had jurisdiction of the subject-matter. 11 Leg. Int. 126. ; : : Liability —A constable neglecting to make return of his execution to the justice, on, or before the return day thereof, is absolutely fixed for the debt and costs. 1 Ash. 160. ; But, if the constable, do not return it in consequence of the request of the plaintiff, it is “sufficient cause” for not rendering judgment against him. Ibid. 160. ,. A justice of the peace has power to supersede an execution issued by him, and such supersedeas will exonerate the constable from liability. 1 P. R. 61. A constable is not liable to the plaintiff for not serving an execution issued by a justice where the justice has gone to the constable and withdrawn it, in consequence of a certiorari delivered to him, though no bail was entered on taking out the cer- tiorart. 2 R. 147. ‘ A constable is liable for an escape without proof of negligence or misconduct on his part. 4 W. 215. co A constable who, through neglect of duty, becomes liable for and pays the amount of an execution directed to him, cannot recover the same from the original defend- ant. 6 W. 228. 7 W. 353. A constable’s return to an execution that he had levied, and that the property was “not sold by J. T. H. becoming responsible for the consequences :” held to be insufficient. In an action against the constable for such insufficiency, it is not competent for him to prove that the property did not belong to the defendant in the execution. If he has reason to doubt about the ownership, he may require the plaintiff to indemnify him: and if he refuses to sell, not having done so, he becomes liable. 8 W. 220. [‘*In delivering the'opinion of the court, Judge Rogers says, It has been nowhere held that the plaintiff is bound to offer an indemnity, before it is required by the officer; nor will every frivolous objection protect the officer, as he would be liable to an action for a false return, unless there was reasonable ground for apprehension that he would be endangered by the levy and sale. When there is reasonable cause of doubt, he may protect himself by demanding adequate security, and this is all he can require.”] 8 W. 222. 3 Am. L. J. 129. 2 H. 510. If, without searching for property, a constable immediately arrest the defendant, he does it at his peril, and he is liable, if it appear that with reasonable diligence he might have found property to attach. He has a reasonable time to search for property. If the defendant declare he has no property, the constable may arrest him at once. 4 Wend. 639. ; A constable would be liable for the misfeasance of a deputy who derived his authority from a special deputation made by his deputy. 9 W. 489. A constable against whom a judgment has been rendered for neglect of duty in not sas an execution, is entitled to an appeal, by the act of 13 October 1840. urd. 184. Ifa constable, by reason of negligence, become liable for the amount of an execu- tion placed in his hands, the issuing of a subsequent execution is not a relinquish- ment by the plaintiff of his right to recover from the constable. 2 W. & S. 229. The mere omission of a constable to return his execution within twenty days, does not fix him for the amount of the debt, if he have sufficient reason for the delay. 6 W.& 8. 534. , An action against a constable for an escape, is not within the limitation of the act of 1772. That act protects the officer when acting in obedience to his warrant; not againgt the consequences of wilful misconduct. 8 Barr 405. A constable who levies upon and sells property exempted from execution, is liable \ CONSTABLES. 231 to an action, although the time when the contract (upon which the judgment was founded) was made, was not indorsed upon the execution. 7 Yerg. 88. If a constable persist in selling the property of a defendant, upon an execution issued upon a judgment that has been appealed from, and the execution revoked by the justice, he is a trespasser as much as if he had no process in his hands. 3 C. 199. A constable against whom execution is issued upon a judgment obtained for official misconduct or negligence, is not entitled to the benefit of the exemption laws. 5 C. 176. Liability of Sureties—One who has been aggrieved by the official misconduct of a constable may either bring suit in the common pleas against the constable and his surety on the official bond, or he may proceed against the constable alone in the first instance, before a justice of the peace, and afterwards against the surety in the a prescribed by the 19th section of the act of 20th March 1810. 6 8. R. 245. A judgment against a constable for official misconduct is conclusive against his sureties as to his misconduct, and the extent of damages sustained by the plaintiff; but they may take advantage of any defence personal to themselves. 17 8. & R. 354. 8 W. 398. 5 Wh. 144. 2 Barr 49. 1 J. 52. + The jurisdiction of a justice to proceed by scire facias against the bail of a delinquent constable, under the 19th section of the act of 20th March 1810, is not taken away by the 3d section of the act of 29th March 1824. 3 W. 208. Nor is it necessary that the constable should be joined with the sureties in such scire facias. 3 W. 208. Ifa judgment be rendered against a constable for neglect of duty, by a justice of the peace, a transcript thereof may be filed in the court of common pleas, and a fier? Jacias be issued thereon without an execution having previously issued from the justice. 3 W. 278. ; In an action against the sureties of a constable upon his official bond to recover the amount of a judgment for which the constable became liable, the judgment pre- viously obtained against the constable himself is conclusive evidence of the liability of the sureties. 8 W. 398. In order to recover against the sureties of a constable, it is not necessary that the constable should have been discharged as an insolvent debtor; it is sufficient that it be proved by parol that he was insolvent. Ibid. Under the act of 20th March 1810, a judgment against a constable for the amount of an execution is conclusive upon his sureties. 5 Wh. 144. In an action thereupon against the sureties of a constable, to recover the amount of such judgment, it was held that evidence was not admissible to show that the constable had lent the money to the plaintiff. Ibid. .The sureties of a constable are liable for the act of the officer in levying upon the goods of a stranger. 6 W. & 8. 513. To recover from the bail of a defaulting constable, the plaintiff must show that he used reasonable and ordinary diligence to collect it from the principal; or that such legal process would have been fruitless by reason of the insolvency of the constable. 5 0. 176. No action can be maintained against the sureties on a constable’s bond, unless brought within three years from its date. 9 C. 199. X. ForMS OF PROCESS TO ENFORCE A FAITHFUL DISCHARGE OF THE DUTIES OF THE OFFICE OF CONSTABLE. FORM OF WARRANT AGAINST A PERSON ELECTED, OR APPOINTED, A CONSTABLE, WHO NEGLECTS, ‘ OR REFUSES, TO DISCHARGE THE DUTIES OF THE OFFICE. YORK COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of York, in the said county, greeting: Waereas, A. B., of the ee 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 office, or to undertake the duties of the same. These are, therefore, to command you to take the said A. B., and bring him before 232 CONSTABLES. 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 York aforesaid, the fifth day of May, a. p. 1860. J.R., Justice of the Peace. [szaL.] FORM OF A SUMMONS AGAINST A CONSTABLE, WHO HAS NEGLECTED, OR REFUSED, TO MAKE RE+ ~ TURN TO AN EXECUTION, MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of P—— Township, in the county of Monroe, greeting: Wuereas, J. R., one of the justices of the peace in and for the county of Monroe, “ee that is to say, on the first day df April, a. p. 1860, issued an execution directed to W. X., constable of N. township, in the said county, for a debt of ten dollars and fifty cents, together with fifteen cents interest, and one dollar twenty-five cents costs of suit, wherein O. P. is plaintiff, and Q. R. is defendant, which execution was made returnable on or before the 20th of April, a. p. 1860. And, although the said execution came to the hands of the said W. X., constable, yet, he hath not made return thereof, according to law. Therefore, we command you, that you summon the said W. X. to appear before our said justice, on the tenth day of May instant, at nine o’clock in the forenoon, at his office in P— township, then and there to show cause why judgment shall not be rendered, and an execution issue against him for the amount of the above-mentioned execution. Wit- ness the said J. R., at P—— township aforesaid, the fourth day of May, a. p. 1860. J. R., Justice of the Peace. [szat.] EXECUTION AGAINST A CONSTABLE ON A JUDGMENT, FOR NOT HAVING MADE RETURN TO AN EXECUTION. MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of P—— township, in the County of Monroe, greeting: Wuerzas 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 Monroe, for a debt of eleven dollars and thirty-five cents, (being the amount of an exe- cution 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 of 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 common jail of the said county, there to be kept until the debt and costs aforesaid be fully paid, or he be otherwise discharged by due course of law. Make return hereof to our said justice on or before the 30th day of May, a. p. 1860. Witness the said J. R., at P—— aforesaid, the 10th day of May, a. p. 1860. J.R., Justice of the Peace. [ska] WARRANT AGAINST A CONSTABLE FOR NEGLECT OF DUTY. BEAVER COUNTY, ss. ; The Commonwealth of Pennsylvania, To the Constable of L—— Township, in the county of Beaver, greeting: Wuersas, on the tenth day of May last, a warrant issued by J. R., one of our justices of the peace in and for the county of Beaver, was directed and delivered to C. D., constable of H——, in the said county, wherein the said constable was commanded to take a certain H.§., and carry him before the said J. R. forthwith, to answer for a certain larceny in stealing and ans away the goods and chattels of S. B.; and, whereas, the said C. D. hath neglected, or refused, to execute the said warrant, and the said H. S. hath absconded, as it is said. These are, therefore, to command you to take the said O. 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. pd. 1860, J. R., Justice of the Peace. [snat.] FORM OF SUPERSEDEAS TO A CONSTABLE, BUCKS COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of D—— Township, in the County of Bucks, and to each and every Constable in the said county, greeting: Forasmucn 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 CONTRACT, - 988 the peace in and for the said county, for the appearance of the said T. D., at the next Court of Quarter Sessions of the Peace, to be held for the county aforesaid, to answer the complaint of L. S., made before A. B., one of the justices of the peace of the said county, for an assault and battery, committed on him by the said T. D. (or as the case 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 r R., at D——, in the said county, the second day of May, a. p. 1860. J. R., Justice of the Peace. [szaL.] i : DISCHARGE TO BE SENT TO THE KEEPER OF THE COUNTY PRISON, OR A CONSTABLE. COUNTY OF BUCKS, ss. : The Commonwealth of Pennsylvania, To the Constable of A—— township, or to the Keeper of the Prison of the County of Bucks: The Commonwealth ) Charged before J. R., one of our justices of the peace in and for the vs. said county, with having committed an assault and battery on C. D. A. B. Committed for a further hearing the tenth day of May 1860. Discharge out of your custody [or deliver to P. C., constable of F township] the body of the above-named defendant, if detained for no other cause than that above men- tioned, and for so doing this shall be your sufficient warrant. Given under my hand and ° seal, this [tenth] day of [May,] a. p. 1860. J. R., Justice of the Peace. [szat.] Contract. I. Definition of a contract. II. Consideration of a contract. I. A CONTRACT is a covenant or agreement between two or more persons, with a lawful consideration or cause :—as, if a man sell his horse, or other things, to another, for a sum of money, or covenants, in consideration of £20, to make him the lease of a farm, &c. These are good contracts, because there is a guid pro quo (or one thing for another); but if a person make a promise to me that I shall have 20s., and that he will be debtor to me therefor, and after I demand the 20s., and he will not give it me, yet I shall never have an action to recover this 20s., because this promise (being without consideration) was no contract. Tom. Law Dic. 7. 1 Bouv. Inst. 222, Express contracts are, where the terms of the agreement are openly uttered and avowed at the time the agreement is entered into. Implied contracts arise under circumstances which, according to the ordinary dealing and understanding of men, show a mutual intention to contract. Constructive contracts are fictions of law, adopted for the purpose of enforcing legal duties, by actions ex contractu, where no proper contract exists, express or implied. 5 C. 465. Though a contract be formal and complete, yet, if understood by the parties as a jest, it is not binding. A. 261. _ 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. 155. Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void gontract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there be no prohibitory words in the statute. 1 Binn. 113. 6 W. 2383. 1 Bouv. Inst. 296. Where a contract is to restrain a party generally from carrying on trade through- out the state, it is unlawful and void; but if it be to restrain him only in a particular place, it is not so. 7 Cow. 307. 1 Bouv. Inst. 236. A contract made on Sunday is void. 1 Binn. 171. 234 CCNTRACT. A contract based on a supposed state of things which had no existence in fact will be relieved against on the ground of mistake. 8 W. 492. 3 Barr 21. . Whenever there is a gross misrepresentation of facts relating to the subject of a contract, the contract is fraudulent and void. 4D. 250. Ignorance of the law does not affect contracts, nor excuse a party from the legal consequences of particular acts. 7 W. 372. : : f The time of a payment is part of a contract; and if no time be expressed in the agreement, the money is payable ‘mmediately. 8 Johns. 189. What is a reasonable time within which an act is to be performed, when a con- tract is silent on the subject, is a question of law. 2 Greenl. 249. ' ‘A contract to complete work dy a certain time, means that it shall be done before that time. 3 P. R. 48. 1 The contract of a surety being without a beneficial consideration, is not to be extended beyond the strict technical import. 2 P. R. 27. When a contract is entire, for the delivery of a number of specific articles, at a certain time and place, the vendee is not bound to receive a part; and though a part be delivered, he is not liable to pay for the same, if willing to accept and pay for the whole; but, if the vendee accept a part, he thereby disaffirms the entirety of the contract, and will be obliged to accept and pay for so many articles as are individually furnished according to the contract. 2 P. R. 63, 2 W. & 8. 26. When neither time nor place for delivery is stipulated, the rule is, that the articles are to be delivered at the place where they are at the time of sale; when the time of delivery is fixed by the contract, the vendor must seek the vendee at his residence, and there tender the articles. If the articles are cumbersome, the vendor must seek the vendee, when the delivery is to be to the vendee, a reasonable time before the day of delivery, and ask him to appoint a place of delivery. 3 W. & 8. 295. 2 Greenl. Ev. § 610. 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 W. 262. On a contract to deliver specific articles, prima facie, the debtor is to be the actor; and this is to be the presumption, until circumstances show the contrary. But even in such case, he is not bound to carry the property about seeking the creditor, in order to tender it to him; but he must ask the creditor to appoint a reasonable place to receive it. 7 C. 265. Where one party intends to abandon or rescind a contract on the ground of a violation of it by the other, he must do so promptly and decidedly, on the first information of such breach. If he negotiate with the party, after knowledge of the breach, and permit him to proceed in the work, it is a waiver of his right to rescind the contract. .5 R. 69. Where a contract is made for any building, of whatever size or dimensions, it becomes a Jaw to the parties, and they are both bound by it; and whatever addi- tions or alterations are made in such building, they form a new contract, either expressed or implied, without affecting the original contract, and must be paid for agreeably to such new contract. 2 Bay 401. Where a person makes a contract with another, to perform certain services, for a definite period, at a stipulated salary, and continues in such service beyond the period agreed upon, in the absence of any new agreement, the presumption of law is, that the original rate of compensation was to be continued. 5 C. 184. 12 C. 367. Contracts are governed by the lew 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 canuot take notice of it. 2 Penn. Bl. 210. The presumption of the law is, that a contract is intended to be performed in the place or country in which it is made, if there be not an express agreement or necessary implication that it is to be performed elsewhere; and, whenever such. understand- CONTRACT. 235 ing is not apparent, the law of the contract is the law of’ the place where it is made. 6 Wh. 117. " ; . As a general rule, where a contract is entire, it is incumbent on the plaintiff to show a performance of all that was stipulated on his part, to be performed, and on . failure so to do, he is not entitled to recover anything. 2 Gr. 278. Where there has been a substantial and bond fide compliance, on the part of the plaintiff, with his contract, he shall not be precluded from a recovery of his compen- sation, on account of some slight imperfection, for which the defendant may be com- pensated in damages. Ibid. II. 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 bind- ing: whether the agreement be verbal or in writing, it is still a nude pact, and will not support an action, if a consideration he wanting. 2 Kent’s Com. 463. 1 Bouv. Inst. 237. When the interest of a man is promoted, though not at his request, and he after- wards deliberately engage to pay for it, the law very properly says he shall fulfil his promise. 1 Br. 109. . A consideration is sufficient, if it arise from any act of the plaintiff, from which the defendant or a stranger derives any benefit, however small, if such act is per- formed by the plaintiff, with the assent, express or implied, of the defendant, or by reason of any damage, or any suspension or forbearance of the plaintiff’s right at law or in equity, or any possibility of loss, occasioned to the plaintiff by the pro- mnise of another, although no actual benefit accrues to the party undertaking. 2 W 104. A moral or equitable obligation is sufficient consideration for an assumption. 5 Binn. 33. : , An adjournment of a suit in a justice’s court is a sufficient consideration for an agreement. 1 Cow. 99. , Labor done and services rendered for one, without his request or privity, however beneficial or meritorious, as saving his property from the fire, affords no ground of action. 20 Johns. 28. A request by a father that a physician will attend his son, who is of full age, and sick at his father’s house, does not render the father liable to pay for the services rendered. 4 W. 247. 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. Forbearance, either limited or general, is a good consideration for a promise to pay the debt of a third person. 3 W. & 8. 420. In assumpsit on a promise to pay the debt of another in consideration of forbear- ance, 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. & S. 476. : An undertaking to answer for the debt of another, though in writing, and signed by the defendant, is void, if no consideration between the plaintiff and defendant, either of forbearance or otherwise. 8 Johns. 29. Unless the undertaking be con- temporaneous 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. é By act 26 April 1855, it is provided that no action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him authorized. But the act shall not apply to or affect any contract, the consideration of which shall be a less sum than twenty dollars. Purd. 497. 236 CONVICTS. This statute does not app.y to a direct promise to pay for work to be performed for another. The hability of the promissor in such case springs out of the per- formance of the promissee, and the consideration moves from the one directly to the other ; consequently, it is not within the statute. 16 Leg. Int. 60. And see 2 Wr. 802. ' An agreement made between parties prior to or cotemporaneously with their exe- cuting a written obligation as sureties, by which one promises to indemnify the other from loss, is not required to be in writing. 2 Kern. 462. A contract required to be in writing must appear with reasonable certainty, with- out recourse to parol proof, from the instrument itself, and parol testimony cannot be admitted either to contradict or to vary it. 17 Leg. Int. 148. See 7 C. 259-60. The authority as an agent by whom the contract is signed need not, under this act, be in writing, but may be preved by parol. It is well settled, hgwever, that such agent must be a third person; and that the other party to the contract is not competent to act as agent for the party intended to be charged. Ibid. Conbicts. I, Punishment for importing convicts. II. Actions against convicts. I. Act 31 Marca 1861. Purd. 193. Sct. 71. If any master or commander of any ship, boat or other vessel, arriving from any foreign country, place or port, at any port, harbor or place within this commonwealth, shall knowingly bring with him any person, either as a passenger, working hand or otherwise, who shall have been convicted of any offence in any foreign country or place, which, if committed within this commonwealth, would have subjected the offender to imprisonment at labor, with intent to land such per- son or permit him to land, such master or commander shall be guilty of a misde- meanor, and on conviction thereof, be sentenced to pay a fine not exceeding three hundred dollars, and undergo an imprisonment not exceeding one year. II. Act 31 Marcu 1860. Purd. 193. Szor. 71. In all cases of felony heretofore committed, or which may hereafter be committed, it shall and may be lawful for any person injured or aggrieved by such felony, to have and maintain his action against the person or persons guilty of such felony, in like manner as if the offence committed had not been feloniously done; and in no case whatever, shall the action of the party injured, be deemed, taken or adjudged to be merged in che felony, or in any manner affected thereby. [ 237 ] . Of the Coroner. I. Of the office and duties of the coroner. II. Forms used in the coroner’s office. I. Tue coroner is an officer, so called, because he hath principally to do with pleas of the crown. 1 Bl. Com. 346. In this state coroners are elected by the citizens of the respective counties at the general election, and are commis- sioned by the governor. They hold their offices for the term of three years, if they so long behave themselves well, and until a successor be duly qualified; but they are re-eligible. Vacancies in the office are filled by an appointment by the governor, to continue until the next general election, or until a successor shall be chosen and qualified. Const. art. VI. § 1. Coroners are required, by the act of 1834, before they are commissioned or exe- cute any of the duties'of the office, to enter into a recognisance, and become bound in a bond, with at least two sufficient sureties, in one-fourth of the sum required from the sheriff of the county, conditioned that they will “well and truly perform all and singular the duties to the said office of coroner appertaining.” The sureties are to be approved by the judges of the court of common pleas; the recognisance is to be recorded; the names of the sureties are to be entered by the prothonotary upon his judgment docket; and the recognisance becomes a lien upon all the real estate of the coroner and his sureties, within the county; and it stands as security not only to the commonwealth, but to all persons whomsoever for the faithful dis- charge of the duties of the office. Purd. 893-5. The office and power of the coroner are ministerial and judicial. The ministerial power of the coroner is only as a substitute for the sheriff. For when there is a vacancy in the office of sheriff, or when a just exception is taken to the sheriff, for suspicion of partiality, as that he is interested in the suit, or of kin either to the plaintiff or defendant, the process must be awarded to the coroner, in place of the sheriff, to be executed. And-his duties in relation to the execution and return of such process, are precisely the same as those of the sheriff in other cases. Rob. Dig. 106. The judicial duties of the coroner are principally prescribed by the statute of 4 Edward I., “ concerning the office of the coroner.” The chief of these duties is to inquire when any person is slain, or dies suddenly, or in prison, concerning the manner of his death; and for this purpose he must summon a jury, and hold an inquisition, on view of the dead body; for if the body be not found, the coroner cannot sit. 1 Bl. Com. 348. Justices of the peace ought to inform themselves in relation to the duties of the coroner, in this respect, inasmuch as it is provided by the act 27 May 1841, § 15, “That in all cases where by law the coroner of any county is required to hold an inquest over a dead body, it shall be lawful for a justice of the peace of the proper county to hold the same where there is no lawfully appointed coroner, or he is absent from the county, unable to attend, or his office is held more than ten miles distant from the place where the death occurred or the body was found; and said justice shall have like power to select, summon and compel the attendance of jurors and witnesses, and shall receive like fees and tax like costs, and the inquest shall have like force and effect in law. Provided, That no fees or costs shall be allowed or paid said justice or inquest until the proceedings are submitted to the court of quarter sessions of the proper county, and said court shall adjudge that there was reasonable cause for holding said inquest, and approve of the same.” Purd. 609.(a) A coroner in his judicial capacity cannot appoint a deputy. 1 Chit. 745. The justice should bear in mind, that he has no power to hold an inquest over a dead body, except in the cases provided for in the statute. he prevalent notion (a) The act of 19 April 1856, provides that personal attendance of the coroner, after this section shall not hereafter authorize the notice given to him, or reasonable and proper holding of an inquest by a justice of the peace efforts made to give him notice of the death, within the county of Allegheny, except in and of the necessity of his official attendance. cases where it is impracticable to obtain the P. L. 470. 238 CORONER, that a justice of the peace has concurrent power to inquire into the circumstances of a sudden or violent death, upon view of the body, is without authority in the law. The statute of 4 Edw. I. commands the coroner alone to go to the-place where any one is slain or has suddenly died; and by warrant to the “bailiffs or constables, to summon a jury from the neighboring towns, to inquire into the manner of the kill- ing, or the circumstances of the death. From the words of the statute it results, that the coroner’s jurisdiction is a special one, and that no one else can take an inquisition in the manner prescribed. 6 Wh. 272. Except in the cases enumerated in the act of 1841. . The statute of 4 Edw. I. being wholly directory and in affirmance of the common law, the coroner is not thereby restrained from any branch of his power, nor excused from any part of his duty, not mentioned in it, which was incident to his office before; and therefore, though the statute mentions only inquiries of the death of persons slain, drowned or suddenly dead, yet the coroner ought also to inquire of the death of those who die in prison. 2 Hawk. P. C.c.47. Rob. Dig. 104. But by the act 29 March 1819, the coroner of Philadelphia county is not to hold an inquest on the body of any prisoner who may die in the common jail of that county, unless required by the inspectors, or in cases of death by violence. Purd. 506. And by act 16 April 1845, he is prohibited from holding an inquest on the body of any deceased per- son, unless he shall have died of violent death.(@) Purd. 897. The subjects of inquiry for a coroner’s inquest are cases of sudden and violent deaths, whether they take place from the visitation of God; by misfortune (as if sudden death ensue in consequence of a fall or other casualty); by suicide; or by the hand of another, whether by murder, manslaughter, in self defence or by acci- ‘dent. But he is only to hold an inquest where there has been a violent and un- natural death, or reasonable suspicion of such a death; an accident superinducing disease and death, at the end of days and weeks, is not a case for an inquest. There ought at least to be a reasonable suspicion that the party came to his death by vio- lent and unnatural means; for if the death, however sudden, was from fever or other visitation of God, there is no occasion for the coroner’s interference. 1 East P. C. 382. 2 Hale P. 0. 62. Where, however, death occurs from any violence done to a person by another, although such violence may not suddenly terminate the life of the party injured, it is still the duty of the coroner to hold an inquest. 2 Gr. 262. An inquisition of death, by the oath of lawful men of the county, is sufficient without saying they were of the next town, so that it appear at what place, and by what jurors, by name, it was taken, and that such jurors were sworn. At the pre- sent day they are selected and summoned by the coroner himself or his deputies. The number of jurors on a coroner’s inquest was not fixed by the common law. But by the act 16 May 1857, it is provided that the number shall not be more than six to attend any one inquest. Purd. 897. It is clearly agreed, that the inquest must be taken on the view of the dead body, and an inquest taken otherwise by a coroner, is void; therefore, where the body cannot be 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 presumed that the view of it could be of no manner of use for the information of the jurors, the court into which the inquisition is returned, will, in their discretion, refuse to receive or file it, upon affidavit of the whole circumstances of the proceed- ing. Yet the court refused in one case to quash an indictment taken a year after the body had been buried, for factum valet, quod fiert non debit. It is not necessary that the inquisition be taken at the very same place where the body was viewed ; and it hath been resolved, that an inquisition taken at D., on the view of the body lying dead at L., may be good. : The jury must be sworn, and charged by the coroner to inquire, upon view of the body, how the party came by his death, whether by murder or misfortune, or (a) Extended to Armstrong county by act 8 March 1855. Purd. 897. CORONER. 239 felo de se. If slain, it is to be inquired where slain, by whom, and by what means or instrument; whether slain in the place where the body lies or not, of what length, depth and breadth are the wounds; in what part of the body inflicted, and generally concerning all the circumstances of the party’s death. The inquest are also to inquire of all accessories before the fact, but they cannot inquire of accessories after the fact. If persons who are found guilty by the inquest be taken, the coroner may and must commit them to the sheriff, who is to confine them in prison. And by the statute 1 & 2 Philip & Mary, c. 13, the coroner is to take the examinations against the principal and accessories before the fact, and put them in writing, and bind over the witnesses by recognisance to the next jail delivery, and then to return the inquisition, examinations and recognisances. The coroner’s inquest must have all the evidence offered to them on oath, whether against or in favor of the accused, for it is not so much an accusation or indictment, as an inquest of office. Rob. Dig. 104-5. , In order to aid him in the performance of his duty, the coroner has authority to order a post mortem examination, at the public charge; and the surgeon employed by him for that purpose, where the amount of compensation is not fixed by law,(a) is entitled to a reasonable compensation from the county for his services. The coroner has authority to pledge the responsibility of the county for the compensation of all auxiliary services which are necessary to the proper execution of his office, and which he could by no other means command. When his duty requires him to disinter a body for instance, he cannot be expected to do it with his own hands, or by hands paid for with his own means. True, he is entitled to fees, hut they are given for particular acts of official duty; not as a fund for contingent expenses. 3 Barr 462-5. 4 Ibid. 270. The coroner is the proper judge of the necessity of holding an inquest and mak- ing a post mortem examination. It is sufficient for the surgeon summoned to aid him in it, to know that the proper officer of the county requires his services, and that he has power, by his contract, to bind the county for the payment of a reason- able compensation for them. 2 0. 156. The county commissioners have no power to appoint a surgeon to perform such services, so as to preclude the coroner from selecting a proper person in his discretion. 10 6:301. The fees of the coroner are ‘fixed by the act 28 March 1814, Purd. 459, as fol- lows: Fees of the coroner.—Viewing a dead body . ‘ ; : . $2.75 Summoning and qualifying an inquest, drawing and returning inquisition . 1.374 Summoning and qualifying each witness . 25 To be paid out of the goods, chattels, lands or tenements of the slayer (in case of murder or manslaughter), if any he hath, otherwise by the county, with mileage from the court-house to the place of viewing the body. Executing any process or writs of any kind, the same fees as are allowed to the sheriff, and the same mileage. II. ForMs UsED IN THE CORONER’S OFFICE. 1. PREcEPT TO SUMMON A JURY. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Dauphin: We command you, immediately upon sight hereof, to summon and warn six good and lawful men, of —— aforesaid, whose names are-hereto annexed, to be and appear before Simeon Dunn, Esquire, coroner of the said county, at ,in the county afore- said, at —— o’clock —— of this day; then and there to inquire of, do and execute all things as on our behalf shall be lawfully given them in charge, touching the death of C. (a) In Lancaster county, the compensation for such service is fixed at $10, unless increased by the county commissioners, by the act of 8 April 1852. Purd. 459. This act was extended to Blair county, on the 15 April 1858; to Indiana county, on the 14 March 1857; and to Berks and Montgomery, on the 14 March 1860. Purd. 459. By act of 19 April 1856, the compensation in Northampton county is fixed at $15, unless increased by the commissioners of the county, Purd, 459, 240 CORONER. D. And be you then and there, to certify what you shall have done in the premises, and further to do and execute what in our behalf shall be then and there enjoined you. Given under the hand and seal of our said Coroner, at -——, the —— day of ——,, 4. D. 1862. Stuzon Dunn, Coroner. [sEat.] - 2. OarH [or AFFIRMATION] OF FOREMAN. You do swear, [or “solemnly, sincerely and truly declare and affirm,”’] that you will diligently inquire and true presentment make, on the behalf of the Commonwealth, how and in what manner ©. D., [or “(a person unknown,” as the case may be,] here lying dead, came to his death; and of such other matters relating to the same as shall be law- fully required of you, according to the evidence offered to you or arising from the inspec- tion of the body. So help you God, [or, “And so you affirm.”] After the foreman is sworn [or affirmed], the rest may be sworn [or affirmed] together, as follows: “You and every of you do swear, [or affirm,] that such oath [or affirmation] as your foreman hath for his part taken, you and every of you shall well and truly observe and keep on your parts respectively. So help you God,” [or “And so you affirm.”] 3, Suprana. The Commonwealth of Pennsylvania, To T. B., D. O., K. M., and S. P., greeting: We command you and every of you that, all business and excuses whatsoever being laid aside, you do in your proper persons appear before A. B,, Esquire, Coroner of the county of Dauphin, and an inquest now sitting at , in the said county, to testify the truth and give such information and evidence as you and every of you shall know, touching the manner in which C. D., [or “a certain person ere | there lying dead, came to hig death; and touching all other matters in relation to which you shall be examined. And this you are in no wise to omit, under the penalty that may ensue. Witness the hand and seal of the said A. B., at , the —— day of , A. D. 1860, A.‘B., Coroner. [sEAu.] 4, OaTH OF A WITNESS ON A CORONER’S INQUEST. You do swear that the evidence you shall give to this inquest, touching the death of C. D., [or “the person whose body has been viewed,”] shall be the truth, the whole truth, and nothing but the truth, so help you God. 5. InQuisITION OF MURDER. Commonwealth of Pennsylvania, Dauphin County, ; An inquisition indented and taken at ——, in the county of Dauphin, the day of —, in the year of our Lord one thousand eight hundred and sixty-two, before me, Simeon Dunn, Coroner of the county aforesaid, upon the view of the body of A. D., then and there lying dead, upon the oaths of C. D., E. F., &c.,and solemn affirmations of K. L., M. N., &., good and lawful men of the county aforesaid ; who being sworn and affirmed to inquire, on the part of the Commonwealth, when, where, how and after what manner the said A. D. came to his death, do say, upon their oath and affirmation, that one A. M., late of —— aforesaid, gentleman, [this word gentleman, and other words following, printed in italic, should be varied according to the facts of the case,] not having the fear of God before his ss. eyes, but being moved and seduced by the instigation of the devil, on the —— day of ——, in the year of our Lord one thousand eight hundred and sixty-two, at the —— hour in the night of the same day, with force and arms, at ——, in the county aforesaid, in and upon the aforesaid A. D., then and there being in the peace of God and of the said Com- monwealth, feloniously, violently and of his malice aforethought, made an assault; and that the aforesaid A. M. then and there, with a certain sword, made of iron and steel, of the value of one dollar, which he, the said A. M., then and there held in his right hand, the aforesaid A. D., in and upon the left part of the belly of the said A. D., a little above the navel of the said A. D., then and there violently, feloniously, voluntarily and of his malice aforethought, struck and pierced, and gave to the said A. D., then and there, with sword aforesaid, in and upon the aforesaid left part of the belly of the said A. D., a little above the navel of the said A. D., one mortal wound, of the breadth of half an inch, and of the depth of three inches, of which said mortal wound the aforesaid A. D, then and there instantly died ; so the said A. M. then and there feloniously killed and murdered the said A. D., against the peace and dignity of the Commonwealth of Pennsylvania. CORPORATIONS. 241 And the said jurors further say, upon their oath and affirmation aforesaid, [as follows in this paragraph, or as the case may be,] that A. A., of ——, yeoman, and B. A., of ——, yeoman, were feloniously present with drawn swords at the time of the murder and felony aforesaid, in form aforesaid committed; that is to say, on the said day of ——, in the year aforesaid, at aforesaid, in the county aforesaid, at the first hour of the night of the same day; then and there comforting, abetting and aiding the said A. M. to do and commit the felony and murder aforesaid, in manner aforesaid, against the peace and dignity of said Commonwealth. n witness whereof, as well the aforesaid coroner as the jurors aforesaid, have to this inquisition put their hands and seals, on the day and year and at the place first above mentioned. Simeon Dunn, Coroner. [sEat. C. D., SEAL. E. F., &. SEAL. Jurors. For other forms of inquisition, see Graydon’s Forms 315-16, and Dunlop’s Forms 273-6. Corporations, I. Erection of corporations, and corporate III. Suits by and against corporations. powers. IV. Forms of process. II. By-laws of corporations. V. Provisions of the Penal Code. I. A Corporation is a body politic, or incorporated, so called as the persons are made into a body, and of capacity to take and grant, &c., or it is an assembly and joining together of many into one fellowship and brotherhood, whereof one is head and chief, and the rest are the body, and this head and body, knit together, make the corporation; also, it is constituted of several members, like unto the natural body, and framed by fiction of law to endure in perpetual succession (or for a certain limited time.) Bac. Abr. Corporations in Pennsylvania are either created directly by act of assembly or by the courts, in accordance with certain principles, and for certain purposes laid down in a previous law, within the provisions of which certain persons associate ; and it being certified by the proper authorities that the association have, in all respects, complied with the conditions and requirements of the law, they, the asso- ciators, are, for the purposes expressed in their articles of association, declared and acknowledged as a corporation, and granted the powers and immunities appertain- ing to such associations. Purd. 194-7. A charter of incorporation cannot’ be declared void in a collateral suit: it can only be vacated by a scire facias to repeal it, or on a suit of guo warranto at the suit of the commonwealth. 1 R. 426. A corporation has no other powers than such as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted. 15 Johns. 358. A statute restraining any person from doing certain acts, applies equally to cor- porations or bodies politic, although not mentioned. Ibid. A corporation derives all its powers from its charter, and from it the duties, obligations and liabilities of its officers are to be collected. 3 P. R. 502. A corporation may, without seal, enter into a contract express, or even implied. 48.&R.16. 2 W. & 8. 74. The seal of a corporation is prima facie evidence that the contract has been duly entered into by them. 6S. & R. 16. II. By-Laws. A corporation by charter cannot make by-laws inconsistent with the intentions, or counteracting the directions of their charter. 4 Burr. 2204. 16 242 SORPORATIONS. All by-laws, made by corporations, must be consistent: with, and subordinate to, their constitution by charter. Bro. P. 0. 329. : Corporations must show their power to pass by-laws, and bring themselves, by proof, within that power. 5 Cow. 462. By-laws must be reasonable. Ibid. 10 Wend. 99. Municipal corporations have ‘power, at common law, to make by-laws for the general good of the corporation. They must, however, be reasonable and for the common benefit, not in restraint of trade, nor imposing a burden without an appa- rent benefit. 2 J. 321. An ordinance of a municipal corporation, prohibiting the opening of streets, for the purpose of laying gas mains, from the Ist of December to the Ist of March following, is a reasonable regulation, and binds a private corporation, chartered before the passage of the ordinance, and required to furnish gas and lay mains, &c., along the streets, within the chartered limits, on application from owners of pro- perty, whenever the profit would pay the interest on the expense. 2 J. 318. But an ordinance prohibiting such corporation from opening a paved street, for the purpose of laying’pipes from the main to the opposite side of the street, is unreasonable and void. Ibid. For other cases on the validity of city ordinances, see 1 Y. 471. 2 ¥. 493. 3 Y. 491. Courts will not take judicial notice of the ordinances of a city; they must be proved as matters of fact. 11 Mis. 431. III. Surrs BY AND AGAINST CORPORATIONS. The act of 22d March 1817, § 6, provides “ that in cases in which a corporation shall be a party in any suit, in any court or before any magistrate, all the proceed- ings,” except as regulated by statute, ‘shall be the same as directed by law in other cases.’ Purd. 198. 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, treasurer, secretary or chief clerk of such corporation.(a) 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 recoverable on the same from the, time of making such demand. Act 22 March 1817, §.1. 6 Sm. 438. 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 presi- dent or other principal officer, cashier, treasurer, secretary or chief clerk, in any county or place where they may be found. Act 13 June 1836, § 42. Purd. 198. Process may be served on the toll-gatherer of any corporation in the proper county, and next to the place where the damage shall have been committed. But in case of such a service, reasonable notice of the suit must.also be given to some one of the officers of the company. Act 16 March 1833. Purd, 198. In the commencement of an action against a foreign corporation, process may be served upon any officer, agent.or engineer of such corporation, either. personally or by copy, or by leaving a certified copy thereof at the office, depét or. usual place of business of such corporation. Act 21 March 1849. Purd. 199. By the act of 15th April 1851, the provisions of the act of 1849 are extended to stage companies, and all joint stock companies, not incoporated, where the mem- bers of said companies do not reside within this commonwealth: provided, that service upon.an agent shall be upon the principal agent having charge of the busi- ness of said company in the county where any office may be located. Purd. 31. (a) This provision is re-enacted by the act of 18 June 1886, excepting as to counties and townships. Purd. 198. CORPORATIONS. 248 $ Whenever an act of assembly requires service to be made, by delivering a cer- tified or attested copy, the constable is required to certify or attest the same to be a true copy, by writing at’ the foot thereof, the words “a true copy,” and signing his name thereto, in attestation of the same. 3 P. L. J. 499. Bright. R. 67. In any case where any insurance company or other corporation shall have an agency or transact any business in any county of this commonwealth, it shall and may be lawful to institute and commence an action against such insurance company or other corporation in such county, and the original writ may be served upon the president, cashier, agent, chief or any other clerk, or upon any directors or agent of such company or corporation within such county, and such service shall be good and valid in law to all-intents and purposes.(a) Act 8 April 1851,§6. Purd. 198. When any action is commenced by any person against any corporation in any county in which the property of said corporation was wholly or in part situated, it shall be lawful, if the president, treasurer, secretary or chief clerk do not reside or cannot be found in such county, for the sheriff or officer to whom any process may be directed to serve the same on any manager or director’in such county, and the service so made shall be deemed sufficient; and in case no director or manager can be found in such county, it shall be lawful for the sheriff or other officer to whom such process is directed to go into any county to serve the process aforesaid. Act 17 April 1856, § 1. Purd. 199. On certiorari, parol evidence cannot be received, to alter or amend the constable’s return. 3 Pittsburgh Leg. J. 301. If the constable return that he has served the agent of the defendant, the justice is not to inquire into the question of his agency ; if the return be false in fact, the remedy of the defendant is against the constable. 2'T. & H. Pr. 461. In a suit by a corporation, under the plea of the general issue, the plaintiffs are not required to exhibit or prove their act of incorporation. The want of it must be pleaded in abatement, or specially in bar. 9 C. 358. . A foreign corporation may maintain an action in its own name, or that of its trustees, in the courts of’ Pennsylvania. 9 W. 126. Assumpsit, trespass and trover will lie against a corporation. 9 S. & RB. 94, 102. Where a corporation are parties, or immediately interested in the question, no member of it can be a juror or witness. 1 Y. 480. 1 Greenl. Ev., § 331. If any corporation, summoned as aforesaid, shall not appear by their officer, agent or attorney, 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 affirmation of the officer serving the same, judgment by default shall be rendered against said corpora- tion for the sum which to the court or magistrate shall appear to be due.(b) Act 22 March 1817, § 2. 6 Sm. 439. 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 corporation, 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 office 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 execu- tion 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 authorized 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 (a) See act of 27 April 1867, for further. (4) The proceedings on the return of the provisions as to the service of process on summons, by default, or on hearing, should insurance companies. Purd. 560. be the same, in all respects, against corpora- : tions as against individuals. 244 CORPORATIONS. where execution shall be against a banking company, and other personal property cannot be found sufficient for the debt, interest and costs, if any current coin of gold, or silver, or copper, shall be found by such officer, he shall take so much as will satisfy the debt, interest and costs. Ibid. § 3. ; Such real and personal property of a corporation as is necessary for the enjoy- ment of the corporate franchises, cannot be levied on and sold under an execution against it, 13 8. & R.210. 9 W.&8. 27. 3 Phila. R. 173. 18 Leg. Int. 244. 24 How. 257. In case of appeal, certiorart or writ of error, by any corporation, the oath or affirma- tion 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 (municipal corporations excepted) 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. Act 22 March 1817, § 4. Purd. 410. The act of 15th March 1847 (Purd. 199), 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, further provides, that in case of a foreign corporation, the bail shall be absolute for the payment of such sum as shall finally be adjudged to be due to the plaintiff, with interest and costs thereon. Purd. 199. Rules of reference, and all notices whatsoever, may, where a corporation is a party in any suit, be served on the president or other principal officer, or cashier, or secre- tary, or chief clerk of such corporation. Act 22 March 1817, § 5. Purd. 199. 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 same as directed by law in other similar cases. Ibid. § 6. For the proceedings on an attachment in execution against a corporation, see tit. Attachment in Execution. IV. SUMMONS AGAINST A CORPORATION. MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of D——, in the County of Monroe, 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 1860, at 10 o’clock, 4. 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. p. one thou- sand eight hundred and sixty. J. R., Justice of the Peace. [sEau.] The Justice’s office is in D—— Township. . RECOGNISANCE OF BAIL ON APPEAL. July 14th 1860.—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 affrmance of the judgment. J. M., Tinicum. V. Act 81 Marca 1860. Purd. 229, 237. Sscr. 66. It shall not be lawful for any councilman, burgess, trustee, manager or director of any corporation, municipality or public institution, to be at the same time a treasurer, secretary or other officer, subordinate to the president and directors, who shall receive a salary therefrom, or be the surety of such officer, nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies, or materials to be furnished to, or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale; and any person violating these provisions, or either of them, shall forfeit his membership in such corporation, municipality or institution, and his office or appointment thereunder, and shall be held guilty of a misdemeanor, and on conviction thereof be sentenced to pay a fine not exceeding five hundred dollars: Provided, That nothing in this section contained, shall pre- CORPORATIONS. 245 vent a vice-president of any bank from being a director of such bank, or of receiving a salary as vice-president. Sxcr. 67. Any person who shall contract for the sale, or sell any supplies or materials as aforesaid, and shall cause to be interested in any such contract or sale, any member, officer or agent of any corporation, municipality or‘institution, or give or offer to give any such person any reward or gratuity, to influence him or them in the discharge of their official duties, shall not be capable of recovering anything upon any contract or sale, in relation to which he may have so practised or attempted to practise corruptly, but the same shall be void, and such party shall be guilty of a misdemeanor, and, on conviction thereof, be sentenced to pay a fine not exceeding five hundred dollars. Sct. 68. If any officer of any municipal or other corporation, not authorized by law, shall be instrumental in, or shall consent to or connive at, the making or issuing of any note, bill, check, ticket or order, intended to be used as currency, he shall be guilty of a misdemeanor, and, on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars for each offence, and to undergo an imprisonment not exceeding six months. Sect. 116. If any person, being an officer, director or member of any bank, or other body corporate or public company, shall fraudulently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such bank, body corporate or company, or belonging to any person or persons, cor- poration or association, and deposited therein, or in possession thereof, he shall be guilty of a misdemeanor. Sect. 117. If any person, being a director, officer or manager of any body cor- porate or public company, shall, as such, receive or possess himself of any money, or other property of such body corporate or public company, otherwise than in pay- ment to him of:a just debt or demand, and shall; with intent to defraud, omit to make, or to cause or direct to be made, a full and true entry thereof in the books and accounts of such body corporate or public company, he shall be guilty of a misde- meanor. Sxcr. 118. If any director, manager, officer or member of any bank, or other body corporate or public company, shall, with intent to defraud, destroy, alter, muti- late or falsify any of the books, papers, writings or securities belonging to the bank, body corporate or public company, of which he is a director, manager, officer or member, or shall make or concur in the making of any false entry, or any material ‘ omission in any book of accounts or other document, he shall be guilty of a misde- meanor. Secr. 119. If any director, manager, officer or member of any bank, or other body corporate or public company, shall make, circulate or, publish, or concur in making, circulating or publishing any written or printed statement or account, which he shall know to be false in any particular, with intent to deceive or defraud any member, shareholder or creditor of such body corporate or public company, or with intent to induce any person to become a shareholder or partner therein, or to intrust or advance any money or property to such body corporate or public company, or to enter into any security for the benefit thereof, he shall be guilty of a misdemeanor. Scr. 120. If any person shall receive any money, chattel or valuable security, which shall have been so fraudulently disposed of, as to render the party disposing thereof guilty of a misdemeanor, knowing the same to have been so fraudulently disposed ‘of, he shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the party guilty of the principal misdemeanor shall, or shall not, have been previously convicted. Sect. 121. Every person found guilty of a misdemeanor under either of the pre- ceeding sections of this title, wherein the nature and extent of the punishment is not specified, shall be sentenced to an imprisonment not exceeding two years, or be fined in any amount not exceeding one thousand dollars, or both or either, at the discretion of the court. Sect. 122. Nothing herein contained shall affect any remedy at law or in equity, which any party aggrieved might have heretofore had, nor affect or prejudice any agreement entered into, or security given, by any trustee, having for its object the restoration or repayment of any trust property misappropriated. 246 COSTS. « Sxor. 128. No such trustee, banker, merchant, broker, attorney, agent, airector, officer or member as aforesaid, shall be enabled or entitled to refuse to.make a full and complete discovery by answer to any bill in equity, or to answer any question or interrogatory in any civil proceeding in, any court of law or equity, but no answer to any such bill, question or interrogatory, shall be admissible in evidence against such person charged with any of the.said misdemeanors. Sor. 124. The word ‘‘ trustee” herein shall mean a trustee on some express trust created by deed, will or instrument in writing, and shall also include the heir, devisee and personal representative of any such trustee, and all executors, adminis- trators and assignees; the word “property” shall include every description of real and personal property, money, debts and legacies, and all deeds and instruments relating or evidencing the title or right to recover or receive any money or goods, and shall also include not only such property as may have been the original subject of a trust, but any property in which the same may have been converted, and the proceeds thereof, respectively, or anything acquired by such proceeds. Costs. I. How a justice should keep an account of Ill. Judicial opinions and authorities re- costs. lating to costs. II. How and when costs should be demanded. I. In the prosecution, and defence, of actions, the parties are necessarily put to certain expenses, or, as they are commonly called, costs; consisting of money paid to the government, to the officers of the courts, and to the counsel and attorneys for their fees, &c. Brightly on Costs 13. Costs are distinguished from fees, on being an allowance to a party for expenses incurred in conducting his suit; whereas fees are a compensation to an officer for his services rendered in the progress of the course. 118. & R. 250. , No costs were recoverable, by either the plaintiff or defendant at common law; the right to recover them depends wholly on statute law, and therefore a party claiming to recover costs from his adversary must be able to point to the statute by which they are given; and hence it follows also, that statutes which give costs are not to be extended beyond the letter, but are to be construed strictly. In suits before justices, the right to recover costs depends on the Statute of Gloucester, 6 Edw. I. ch. 1, and other British statutes upon this subject; and the amount of their fees is regulated by the acts of assembly of this commonwealth. These acts prescribe the amount which the justice is entitled to from the party for whom the services are rendered, and these, in general, may be recovered back from the unsuccessful party, but the successful party is not strictly bound by the fee bill, as to the amount of costs tkat he may recover; for there are other matters, such as the execution of a commission for the examination of witnesses, &c., which though not provided for by any fee bill, are yet considered costs which may be recovered from the unsuccessful party. The 12th section of the act 20 March 1810, provides that “on the delivery of an execution to any constable, an account shall be stated, in the docket of the justice, and also on the back of the execution, of the debt, interest and costs.” It is recommended to every justice, to pay the same strict attention to the keep- ing an account of costs in the margin, as he does of the progress of the suit itself, in the body of his docket. Every act done by the justice should not only be noted on the docket, but the amount of costs, it any be incurred, should, without unnecessary delay, be entered in the margin; those of the justice being kept separate from those of the constable. To each entry should be affixed a mark, by which the justice should know whether the costs, so entered, have, or have not, been paid, and, if paid, whether paid by the plaintiff or defendant: and, also, when they were repaid by the justice to the person, plaintiff, defendant or con- COSTS. 247 stable, who may be entitled to receive them, or any part of them, on the settlement of the suit. A straight line thus — shall signify that the item of costs, to which it is affixed, has been paid by the. plaineijf. A cross thus x shall declare the items of costs, to which it is placed, to have been paid by the defendant. The addition of a point, thus . shall show that the amount, which was paid, has been paid by the magistrate, back to the person from whom it had originally been received. As this is a matter of'some moment to the public, as well as to the justice, it may be well further to illustrate the plan thus recommended. The amount of costs to be paid being twenty-five cents, let it, if not paid, be put in figures, in thé margin of his docket, thus 25.; if paid by the plaintiff, let it be entered thus 25—If paid by the defendant, thus . When the twenty-five cents are, on settlement of the case, repaid to the plaintiff, let the original entry have a point put over it thus ~- If the ‘twenty-five cents shall be paid back to the defendant, let the point be put over it thus x. The justice who'will be particular in affixing these marks, trifling as they may seem, or any other he may think proper to adopt, will find that they will facili- ‘tate and give accuracy in the transaction of his business. II. The justice is not authorized to demand and receive his costs until the duty shall be performed, for which he is entitled to the legal payment. Having, how- ‘ever, performed the duty required, he is entitled to his fee, and should ask it. ‘Let him, as soon as he can, familiarize himself with the prices, or fees, which it has been the pleasure of the Legislature to put upon his services, and ask the person who ought to pay for what is apportioned for the services performed. The justice must take care to ask for‘no more than he is legally entitled to, nor should he ask for less. If he takes more, ‘he is subjected to a penalty. If he takes less, he does himself wrong. In this, as in everything else, let him set an example of prompt and strict obedience to the laws. So soon as the costs are paid, let it be noted, in black and white, in such a manner as shall leave no room for future doubt or cavil. These are things which should, by all possible means, ‘be avoided. ‘If the costs paid shall be for ‘the issuing of a process, previously to a docket-entry, it may, at the time, be noted by the justice on a corner of ‘the process, in the manner above recommended; if for other services, such as subpoenas, swearin witnesses, or adjourning a case, let it be noted on the margin of the docket. Thus, when called upon, the justice is able, instantly, to state the whole amount of costs on the suit, such amounts as have been paid, and by whom paid, and the ba- lance due. It would be better in this, as in all other ‘things, if the parties would ‘attend to the law, and pay costs as they become due. By so doing, one avenue 4gainst misunderstanding or dispute between the justice and the parties would ‘be closed. This is important. If misunderstandings arise about costs, or about anything else, they will, necessarily, weaken that confidence and mutual respect which should be the basis of all intercourse in'a magistrate’s office. ‘ Where justice is expected to be administered “without sale, denial ‘or delay,” care should be ‘taken to exclude every thing, word or deed, which, in any wise, could excite doubt, or awaken suspicion. All should, in the common, but well understood phrase, be fair, honest and above board. There should be no whispering ; nothing should be permitted to ‘be done, which,even in the breast of the timid, should ‘awaken a fear that there was prejudice or partiality. ‘Let all things be conducted ‘among us in such a manner that we provide’things honest, not only before God, but also before men.” III. I have always considered it to be the general understanding that the plain- ‘tiff is liable to the officers for their fees, in case they cannot be secured from the defendant. 4 B. 172. All the parties to a bill or note are liable for the amount due, although only one satisfaction can be recovered ; yet executions for costs may be issued in all of them. 20D.115. 8 Johns. 356. To entitle a party to the costs of his witnesses, and of the subpoena upon them, it is not necessary that their names should have been inserted in the sub- 248 COSTS. pena by the prothonotary, [or the justice,] before ddlivering them to the party. Ibid. 276. When the merits of a case have been heard, and the plaintiff is nonsuited, he will not be permitted to proceed in a second suit until the costs of the first are dis- charged. 1 Br. 88. ae : A rule for security of costs will be granted, of course, when the plaintiff resides out of the state. 1 Br. 256. a When arbitrators award in favor of the defendant, and the plaintiff appeals, if he recover, he is entitled to the costs which he paid, on entering his appeal, as well as those which accrued since. 18 8. & R. 109. On an appeal from the judgment of a justice of the peace, the costs abide the event of the suit, and are to be paid by the unsuccessful | as in other cases. Purd. 600. ‘See tit. Appeals. 9 Arielle Lyuw (66% Carin On the taxation of costs, the plaintiff is competent to prove that he subpoenaed the witnesses, but not the fact of their attendance. Stokes v. Deringer, District Court, Phila., 2 October 1847. The expenses of a witness who was subpeenaed, and actually attended at the trial of a cause, although he was never examined, ought to be allowed in the taxation of costs. 1B. 46. 3 Y. 558. So, ought the costs occasioned by the attendance of a material witness at the trial of the cause, if he was then examined, although such witness were not served with a subpoena. Ibid. So likewise ought the costs of a witness who was actually subpoenaed, but never attended, if an attachment were issued against him. Ibid. But the costs of a witness who was subpoenaed, but did not attend, and against whom no attachment was issued ought not to be allowed. Stokes v. Deringer, Dis- trict Court, Phila., 2 October 1847. A witness who rea before arbitrators at several adjourned meetings, after having been examined, but not discharged from attendance, and who was called to testify to the character of another witness for veracity, is entitled to be paid for each day’s attendance, although he is not re-examined. Brightly on Costs 287-8. Where a witness is subpoenaed in several causes hetween the same parties, or in several causes by the same plaintiffs against several defendants, or by several plain- tiffs agaiyst the same defendant, which are tried at the same time, he is only entitled to be paid for his attendance in one suit. 158. & R. 21. 6 W. 331. 3W.&S. . 274, 3 Barr 267. 14 Leg. Int. 180. Mileage is allowed to witnesses only for each mile circular in travelling from the line of the state, in the usual and ordinary route of travelling between the witnesses’ place of residence, and the place of holding the court. 2 W. 189. . ° A witness from a distant county who attends on the trial of the cause, at the request of the party, is entitled to his allowance for mileage, although not subpo- naed until his arrival at the place of trial. Brightly on Costs 292. The act of 31 March 1860, § 64, provides that in all cases of conviction of any crime, all costs shall be paid by the party convicted; but where such party shall have been discharged according to law, without payment of costs, the costs of prose- ‘eution shall be paid by the county. Purd. 261. This act includes convictions by a justice of the peace for drunkenness or vagrancy. 4 (C..173. 5 C. 38, But the county is not liable to the justice for his costs, on a conviction for vagrancy, unless the defendant be sentenced to hard labor, and the commitment follow the sentence as recorded. 12 C. 849. [ 249 ] Counterfeiting, I. Counterfeiting coin. III. Counterfeiting public brands. lI. Counterfeiting bank notes. IV. Counterfeiting trade marks. I. OFFENCES AGAINST THE COIN. Any person who shall falsely and fraudulently make or counterfeit any coin, ‘resembling, or apparently intended to resemble any gold or silver coin, which is or shall be passing, or in circulation as money, within this commonwealth, shall be guilty of felony, and, being thereof convicted, shall be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years; and every such offence shall be deemed complete, although the coin so made or counterfeited shall not be in a fit state to be uttered, or the counterfeiting thereof shall not be finished or perfected. Act 31 March 1860, § 156. Purd. 243. If any person shall gild or silver, or shall with any wash or materials capable of producing the color of gold or silver, wash, color or case over any coin what- soever, resembling, or apparently intended to resemble, or pass for any gold or silver coin, which is or shall be current in this commonwealth; or if any person shall gild or silver, or shall with any wash or materials capable of producing the color of gold or silver, wash, color or case over any piece of silver or copper, or of coarse gold or coarse silver, or of any metal or mixture of metals, respectively, being of a fit size and figure to be coined, and with the intent that the same shall be coined into false and counterfeit coin, resembling, or apparently intended to resem- ble, or pass for any coin which is or shall be current in this commonwealth; or if any person shall gild, or shall with any wash or materials capable of producing the color of gold, wash, color or case over any silver coin, which is or shall be current as aforesaid, or file, or in any manner alter such coin, with intent to make the same resemble or pass for any current gold or silver coin; or if any person shall gild or silver, or shall with any wash or materials capable of producing the color of gold or silver, wash, color or case over any copper coin, current in this commonwealth, or file, or in any manner alter such coin, with intent to make the same resemble or ass for any gold or silver coin, current in this commonwealth ; every such offender shall be guilty of felony, and, being thereof convicted, shall be sentenced to pay a fine not exceeding one thousand dollars, and to uhdergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years. Ibid. § 157. If any person shall impair, diminish or lighten any gold or silver coin, which is or shall be current in this commonwealth, with intent to make the coin so impaired, diminished or lightened, pass for gold or silver coin current as aforesaid, every such offender shall be guilty of felony, and, being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an im- Pg ibe by separate or solitary confinement at labor, not exceeding three years. Ibid. ; If any person shall buy, sell, receive, pay or put off, or offer so to do, any false or counterfeit coin, resembling, or apparently intended to resemble, or pass for any gold or silver coin which is or shall be current in this commonwealth, at or for a lower rate or value than the same, by its denomination, imports, or was coined or counterfeited for ; or if any person shall import into this commonwealth from any of the states of the Union, or from any foreign country, any false or counterfeit gold or silver coin, resembling, or apparently intended to resemble, or pass for any gold or silver coin which is or shall be current in this commonwealth, knowing the same to be false or counterfeit ; every such offender shall be guilty of felony, and, being convicted thereof, shall be sentenced to pay a fine not exceeding one thousand dol- lars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years. Ibid. § 159. If any person shall tender, utter, pass or put off any false or counterfeit coin, resembling, or apparently intended to resemble, or pass for any gold or silver coin which is or shall be current in this commonwealth, knowing the same to be 250 COUNTERFEITING. false or counterfeit, such person shall be guilty of a misdemeanor, ae on con- viction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceed- ing five years. Ibid. § 160. : Tf any person shall make or mend, or proceed to make or mend, buy or sell, hide or conceal or knowingly have in his house, custody or possession, any puncheon, matrix, die, stamp, mould, edger or cutting-engine, used or designed for coining or counterfeiting gold, silver or copper moneys, or any part of such tool or engine, ‘with the knowledge that such tool and instrument is intended to be used in the false and fraudulent making, forging and counterfeiting of any gold, silver or copper ‘eoin which now is, or shall be current and ‘passing in this state as money, or with the intent to use such tool or instrument for the fraudulent purpose aforesaid, or shall aid, abet, counsel or command the ‘perpetration of either of the said offences, ‘such person shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not more than six years. Ibid. § 161. If any person shall falsely make or counterfeit any coin, resembling, or ‘apparently intended ‘to resemble or pass for any copper, nickel or bronze coin, which is or may be current in this commonwealth; or if any person shall know- ingly make or mend, or procure to be made or mended, or buy or sell, or shall ‘knowingly have in his custody or possession any ‘instrument, tool or engine adapted to, or intended for the counterfeiting of any such coin, current as aforesaid; or if any person shall buy, sell, receive, pay or put off, or offer to buy, sell, receive, pay ‘or put off any false or counterfeit coin, resembling, or apparently intended to resemble or pass ‘for any such coin, current as aforesaid, at or for a lower rate or ‘value than the same, ‘by its denomination imports, or was coined or counterfeited for; every such offender shall be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. Ibid. § 162. That where, upon the ‘trial of any person charged with any offence enumerated in the seven preceding sections, it shall be necessary to prove any coin, produced in evidence against such person, to be false or counterfeit, it shall not be necessary to prove the same to be false and counterfeit by the evidence of any officer of the United States mint, but it shall be sufficient to prove the same false or counter- feit by the evidence of any other credible witness. Ibid. § 163. The offence of counterfeiting the coin is not usually prosecuted in the courts of the commonwealth, inasmuch as the laws of the United States are much more ‘complete and perfect. The jurisdiction of the courts of the United States over this offence is not, however, exclusive, inasmuch as the 4th section of the act of congress of 21st April 1806, re-enacted by the 26th section of the act of the 3d of March 1825 (Brightly’s U. 8. Dig. 216), declares that nothing in these acts shall be construed to deprive the courts of the individual states of jurisdiction under the laws of the several states over offences made punishable by these acts. In the cities of Philadelphia and Pittsburgh, where there are permanent courts of the United States, there is no difficulty in prosecuting the counterfeiting of the currency committed therein; but where this offence is committed at places distant from these centres of population, it is important that the local tribunals should possess adequate facilities to punish it, without putting the injured citizen to the inconvenience of attending the sessions of a remote tribunal ; it was, obviously, this consideration which induced congress not to interfere with state jurisdiction. The ease of Fox v. The State of Ohio, 5 How. 410, decides that state jurisdiction may be properly exercised over such crimes. Report on the Penal Code 38. The power to provide for the punishment of counterfeiting the current coin of the United States, may be exercised by the several states concurrently with con- gress. 1 Doug. (Mich.) 207. On an indictment for counterfeiting it must appear that it was the intention of oe party, on making such coin, fraudulently to pass them as genuine. 5 McLean Proof of passing, or attempting to pass, counterfeit money, by an agent employed COUNTERFEITING. 251 ‘by the defendant for that purpose, is the same as proving the acts to have been done by himself. 4 W. C. C. 733. Proof of the fact that a quantity of spurious coins, with tools and instruments for the manufacture thereof, was found in the defendant’s possession, will warrant the presumption of his guilty agency, unless negatived by other facts in the case. 5 McLean 23, 208. On the trial of such an indictment, there must be proof to sustain the aver- ment, that the coins alleged to have been made, were in the likeness and similitude of genuine coins. 5 Mclean 24. The jury should be satisfied that the resemblance of the forged to the genuine piece, is such as might deceive a person using ordinary caution. 4 W. 0. OC. 733. If the spurious coin, from its incompleteness, or the defectiveness of its manu- facture, is not fitted to deceive persons of the most ordinary caution and intelli- ence, the inference of a criminal intention in making it does not arise. 5 McLean 24. But when the purpose and act are otherwise guilty, within the statute, the simili- tude suffices, if, according tothe mode of use apparently designed, the piece would ‘have had a probable tendency to ‘mislead persons, whom it might be intended, in this manner, to defraud into a belief of its. genuineness. 3 Phila. R. 426. To utter a piece of counterfeit coin, is to offer it, whether it be taken or not. Thus, the prisoner, in payment for some. goods at a store, put down on the counter a counterfeit shilling ; ‘the store-keeper took it up,.and said it was bad; the pri- soner then quitted ‘the store, leaving the coin there: Held, that the prisoner had uttered the counterfeit shilling within the meaning of the statute. 1 Eng. L..& Kq. 588. II. CouNTERFEITING BANK NOTES. If any person shall falsely and fraudulently make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in the false making, forging or counterfeiting any bill-or note, or imitation of, or pur- porting to be a'bill or note issued by order of the president, directors and com- pany of any bank incorporated by the laws of this. commonwealth, or by the laws of any of the states or territories of the Union, or of the District of Columbia, or any order, check or draft on either of the said banks, or any cashier of the same; or if any person shall falsely alter, or cause fo be falsely altered, or aid and abet in the falsely altering any bill or note issued by any of the said banks, or any check, order or draft on the same, or the cashier of any thereof; or shall pass, utter, publish or attempt to pass, utter or publish as true, any false, forged or counterfeit bill or note issued by any of the said banks, or by order of the presi- dent and directors of any thereof, or any false, forged or counterfeited order, check or draft, upon any of the said banks, or any cashier thereof, knowing the same to be falsely forged or counterfeited; or shall pass, utter or publish, or attempt to pass, utter or publish as true any falsely and fraudulently altered bill or note, issued by any of the said banks, or by order of the president and directors thereof, or any falsely altered order, check or draft on any of the said banks, or on any cashier * thereof, knowing the same to be falsely altered, with intent to defraud any of the said banks, or any other body politic or person; or shall sell, utter or deliver, or cause 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 of the said banks, or by order of the president and directors thereof, knowing the.same to be false, forged and counterfeited; such offender shall be guilty of felony, and on conviction, shall be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years. Act 31 March 1860, § 164. Purd. 244. If any person ‘shall make, engrave or prepare, or cause to be made, engraved or prepared, or shall have in ‘his custody or possession, any metallic or other plate or substance, either made, engraved or prepared after the similitude of any plate from which any notes or bills issued by any of the said banks shall have been printed or taken, or wherefrom and by means whereof notes or bills may be made, engraved or prepared after the similitude of notes or. bills issued by any 252 COUNTERFEITING, such bank, with intent to use such plate or substance, or to cause or suffer ‘the same to be used in forging or counterfeiting any of the notes or bills issued by any of the said banks; or shall have in his custody or possession any note or notes, or blank note or notes, bill or bills, made, engraved, printed or otherwise prepared, after the similitude of any notes or bills issued by either of the said banks, with intent to pass, utter and publish such simulated notes, or 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 either of them; or shall have in his custody or possession any paper adapted to the making of bank notes or bills, and similar to the paper upon which any of the 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 either of the said banks; such offender shall be guilty of felony, and be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years. Ibid. § 165. If any person shall fraudulently connect different parts of several bank notes, or other instruments, in such a manner as to produce one or more additional notes or instruments, with intent to pass or utter all or any thereof as genuine, or shall utter, publish or pass the same, or either of them, with the intent to defraud any person or body corporate, the said offence shall he deemed forgery or fraudu- lent uttering and publishing, in like manner, as if each of them had been falsely made, forged or counterfeited, and shall be punished accordingly. Ibid. § 166. If any person shall have in his possession or under his custody, at the same time, ten or more similar false, forged, altered or counterfeited bank bills or notes, knowing the same to be false, forged, counterfeited or altered, with intent to utter or pass the same as true and genuine, or to sell the same, and thereby injure and defraud, or cause to injure and defraud, such offender shall, on convic- tion, be sentenced as in cases of forgery or fraudulently uttering and passing such notes. Ibid. § 167. If any person shall fraudulently utter or pass any note or bill purporting to be the note or bill of a bank, company or association which never did in fact legally exist, knowing that the bank, company or association purporting to have issued the same never did legally exist, such offender shall, on conviction, be sentenced as in cases of uttering and publishing forged and counterfeited bank notes, knowing the same to pe forged. Ibid. § 168. Upon the trial of any indictment for making or passing, and uttering, any false, forged or counterfeited coin, or bank note, the court may receive in evidence, to establish either the genuineness or falsity of such coin or note, the oaths or affirma- tions of witnesses who may, by experience and habit, have become expert in judg- ing of the genuineness or otherwise, of such coin or paper, and such testimony may be submitted to the jury without first requiring proof of the handwriting or the other tests of genuineness, as the case may be, which have been hereto- fore required by law; and in prosecutions for either of the offences mentioned or described in the 164th, 165th, 166th, and 167th sections of the “ Act to consolidate, revise and amend the penal laws of this commonwealth,” the courts shall not require the commonwealth to produce the charter of either of said‘ banks, but the jury may find that fact upon other evidence, under the direction of the court. Act 31 March 1860, § 55. Purd. 260. To utter and publish a counterfeit note of a private unauthorized banker, know- ing it to be counterfeit, is an indictable offence. 12 8. & R. 287. And of a bank, the charter of which has expired. 4 B. 418. To utter and publish a bank bill, is to declare or assert, directly or indirectly, by words or actions, that the note is good; but a note is not passed, until it is received by the person to whom it is offered. 2 B. 339. Passing a paper is putting it off in payment or exchange; uttering it, is a declaration that it is good; with an intention to pass, or an offer to pass it. 1 Bald. 366. ° 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. COUNTERFEITING. 253 The possession of other counterfeit. money by the defendant or a confederate, at ae ae of passing counterfeit notes, is evidence of the scienter [knowledge.] id. On the trial of an indictment for passing counterfeit notes, evidence may be given of the defendant passing similar counterfeit notes, and counterfeit notes of other banks at. the same time; but not of passing counterfeits of another bank at another time. 1 Bald. 514, 519, 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, a ponenon of counterfeit notes by one is the possession of the other. 1 ald. 292. III. Counrerreiring PUBLIC BRANDS. If any person shall counterfeit or fraudulently impress the brand, mark or any number or mark of any public inspector, or mark or number in imitation thereof, upon any article subject to inspection, or upon any cask or vessel con- taining such article, or shall counterfeit the stamp of any such inspector upon any plug, or shall fraudulently stamp any plug put into any cask, or shall fraudulently alter, deface, conceal or erase any inspection mark duly made; or if any person shall counterfeit or fraudulently impress upon any article liable to inspection, or upon any cask or vessel containing such article, the brand, mark or other mark of any miller, manufacturer, packer or other person, or shall fraudulently alter, deface or erase any such mark, or shall fraudulently impress the brand, mark or other mark of any person upon such article or vessel; the person so offending shall be guilty of a misdemeanor, and be sentenced to pay a fine not exceeding two hundred dollars, and undergo an imprisonment ‘not exceeding one year, or both, or either, at the discretion of the court. Act 31 March 1860, § 172. Purd. 245. IV. CountTERFEITING TRADE MARKS. If any person shall knowingly and wilfully forge or counterfeit, or cause or procure to be forged or counterfeited, any representation, likeness, similitude, copy or imitation of the private stamps, wrappers or labels, usually affixed by any mechanic or manufacturer to and used by such mechanic or manufacturer on or in the sale of any goods, wares or merchandise, with intent to deceive or defraud the purchaser or manufacturer of any goods, wares or merchandise whatsoever, such person shall be guilty of a misdemeanor, and, on conviction thereof, be sen- tenced to pay a fine not exceeding one hundred dollars, and undergo an imprison- ment not exceeding two years. Act 31 March 1860, § 173. Purd. 246. If any person shall have in his possession any die, plate, engraving or printed label, stamp or wrapper, or any representation, likeness, similitude, copy or imita- tion of the private stamp, wrapper or label usually affixed by any mechanic or manufacturer to and used by such manufacturer or mechanic on or in the sale of any goods, wares or ‘merchandise, with intent to use or sell the said die, plate, engraving or printed stamp, label or wrapper, for the purpose of aiding or assisting, in any way whatever, in vending any goods, wares or merchandise, in imitation of or intended to resemble and to be sold for the goods, wares or merchandise of such mechanic or manufacturer, such person shall be guilty of a misdemeanor, and, upon being thereof convicted, be sentenced to pay a fine not exceeding one hundred dol- lars, and to undergo an imprisonment not exceeding one year. Ibid. § 174. If any person shall vend any goods, wares or merchandise, having thereon any forged or counterfeited stamps or labels of any mechanic or manufacturer, knowing the same to be forged or counterfeited, and resembling or purporting to be imita- tions of the stamps or labels of such mechanic or manufacturer, without disclosing the fact to the purchaser thereof, such person shall, upon conviction, be deemed guilty of a misdemeanor, and be sentenced to pay a fine not exceeding five hundred dollars. Ibid. § 175: . [254] - Counties and Cownships. I. Corporate powers. townships. — t.4 II. Actions by and against counties and IIL. Judicial decisions. I. Act 15 Aprit 1834, Purd. 203. Sxor. 2. Every city shall be deemed and taken to form part of the county in which it is, or may be, situate, saving nevertheless to each city and to the citizens thereof, all and singular the jurisdictions, powers, rights, liberties, privileges and immunities granted by the respective charters, and by the laws of this common- wealth. Sect. 3. The several counties and townships in this state shall have capacity as bodies corporate— First. To sue and be sued as such “by the corporate name of the county of —, or the township of ——-—, as the case may be.” . Secondly. To take and hold real estate within their respective limits, and also personal property: Provided, That such real and personal estate shall be taken or held only for the benefit of the inhabitants of the respective county or township, and for such objects and purposes, and none other, as county or township rates and levies are now, or hereafter may be authorized by law to be laid and collected, and for such other objects and purposes as may hereafter be expressly authorized by law. Thirdly. To make such contracts as may be necessary and proper for the execu- tion of the same objects and purposes. Srcr. 4. The corporate powers of the several counties and townships shall be exercised by the commissioners or supervisors thereof, respectively. II. AcTIONS BY AND AGAINST COUNTIES AND TOWNSHIPS. Sxcr. 5. All suits by a county or.township, shall be brought and conducted by the commissioners or supervisors thereof respectively, and in all suits against a county or township, process shall be served upon and defence made by the commis- sioners or supervisors thereof, respectively. Szcr. 6. If judgment shall be obtained against a county in any action or proceed- ing, the party entitled to the benefit of such judgment may have execution thereof, as follows, and not otherwise, viz.—It shall be lawful for the court in which such judgment shall be obtained, or to which such judgment may be removed by tran- script from a justice of the peace or alderman, to issue thereon a writ commanding the commissioners of the county to cause the amount thereof, with the interest and costs, to be paid to the party entitled to the benefit of such judgment, out of: any moneys unappropriated of such county; or if there be no such moneys, out of the first moneys that shall be received for the use of such county, and to enforce obedi- ence to such writ by attachment. Sxcr. 7. If judgment shall be obtained against a township, the like proceedings may be had to enforce payment out of the township funds, according to the circum- stances of the case.(a) : IIL. A county can only be sued in the courts of the county itself; the courts of other counties have no jurisdiction. 5 W. & S. 181. No action can be maintained against a county without a previous demand on the county commissioners. 11 H. 141. But although orders drawn on townships and counties ought not to be sued until presented for payment, yet the court will not reverse for failure to make such demand, where the fact was not strictly in issue. 2 J. 88. Interest is not recoverable on an order drawn by a municipal corporation on its 0) By act 8°May 1854, ? 21, the like pro- 4. See act of 18 April 1858, 8 8, for pro- ceedings are to be had to enforce a judgment ceedings against townships in McKean county. obtained against a school district. Purd. P. L. 825; and act of 8d May 1852, 2 5, as 170. The like process must issue on a judg- to proceedings against townships in Tioga. ment against the city of Philadelphia. 4C. P. E. 680. 207. Or the city of Pittsburgh, 19 Leg. Tnt. COUNTIES AND TOWNSHIPS. 25d treasurer, until after presentment and refusal of payment. 7 H. 200. 1 Phila. R. 180. 3 Miss. 57. A justice of the peace has jurisdiction of an action against a county. 11 H. 141. ; ‘The action must be against “the county ;” if it be brought against “the commis- sioners of the county,” it is erroneous. 7 W. & 8: 197. 8 Pittsburgh Leg. J. 237. But such an objection to the form of action can only be raised by plea in abate- ment. 5 H. 134. 6 Barr 292. And such mistake could be immediately amended under the act of 1852. Service on two of the county commissioners is good, although one of them has ae ka the oath of office ; and, it seems, that service upon one would be sufficient. No other mode of enforcing a judgment against a county can be pursued than that which is pointed out by the act of 1834;- there can be no seizure, extension or sale of ‘the property of the county. 7 W. & S. 200. A judgment against a municipal corporation is not a lien upon its real estate; and this, because no execution can issue against the defendant’s land upon such a judg- ment. 12 C. 126. A municipal corporation has a right to appeal from an award of arbitrators with- out payment of costs. 80.443. But not without an affidavit that the appeal is not intended for delay. 4 C. 207. A municipal corporation cannot be made garnishee, either-in foreign or execution attachment. 5 C. 173. After judgment on a mandamus against:a municipal corporation, and the issuing of a peremptory writ commanding the defendant-to make provision for the payment of the relator’s claim, the corporate officers have no discretion; their only duty is obedience to the process of the court. 12 C. 263. _ A township cannot give bail for stay of execution. 2M. 397. An action on the case will lie against a township to recover damages for an injury sustained by reason of the negligence of’ the supervisors to keep the road in repair. 5W. & S. 545. The mere form of ‘the contract with a corporation is not: of much importance ; they may be sued for torts, or on verbal promises made by their accredited officers. or agents, or upon implied contracts. 4 H. 461. By act 21 April 1858, § 8, municipal corporations are exempted, in al] cases, from giving bail or filing affidavits of defence. Purd. 804. Taxes on real estate cannot be apportioned: among the different persons who may become owners of it during the year. The person charged at the beginning of the year is liable for the taxes of the whole year. ' The duplicates, with the names of the several persons charged with the-year’s- taxes, are delivered by the-commissioners to the several collectors, with a warrant to collect the several taxes from those per- sons,.and not from any others. And the persons charged in the duplicate are per- gonally liable for the tax, and their-bodies may be taken in execution, if no goods. or chattels are to be found. The collector can look to no other person. When the person who, in the beginning of the year, is charged with the taxes, aliens during the year, it is his business to make his bargain with the alienee [the person to whom the property is transferred] as to the taxes. 12 8. & R. 299. [ 256 J Cobenant. A COVENANT is the agreement or consent of two or more, by deed in writing, sealed and delivered, whereby.either or one of the parties doth promise to the other that something is done already, or shall be done afterwards. He that makes the covenant is called the covenantor, and he to whom it is made, the covenantee. Whart. Law Dict. 194. : All covenants between persons must be to do what is lawful, or they will not be binding ; and, if the thing to be done be impossible, the covenant is void. Dyer 112. Covenant is an action brought for the recovery of damages for breach of any agreement entered into, under seal, between the parties. Esp. N. P. 265. No precise or formal terms are necessary to constitute a covenant. The inquiry always is, what was the intention of the parties. 5 Cow. 170. In construing a covenant it must be considered with the context, and must be performed according to the intention of the parties, as derived from both. 2 Cow. 781.. The covenants which most frequently occur in the practice of a justice of the peace are those contained in leases and in ground-rent deeds. The lessor may maintain covenant against the assignee of the lease, by virtue of the statute of 32 Hen. 8, c. 34. 1J.489. And by act 25 April 1850, § 8, this right has been extended to ground-rents reserved in a conveyance in fee: the statute gives an action of covenant to the lessee, his heirs, executors, administrators or assigns. Purd. 516. : Under the act of 1850 an action of covenant for ground-rent will lie against the assignee of the lessee, for arrears which accrued before the assignment. 9 C. 435. The assignee of the reversion may sue in his own name upon express covenants in a lease, running with the land, such as for payment of rent, &c. 4 P. L. J.117. 8 Ibid. 73. The act of 1850 gives the action of covenant for ground-rent reserved by dedd poll; and it lies, in such case, by the assignee of the rent against the assignee of the land. 9 H. 450. ‘ A justice of the peace has jurisdiction of an action of covenant by the assignee of a ground-rent against the assignee of the land who is in possession. Ibid. The purchaser at a sheriff’s sale of a ground-rent may maintain covenant against the owner of the land out of which it issues. 1 R. 155. Arrears of ground-rent, in a personal action, bears interest from the time they fall due. 4 Wh. 516. But not, when recourse is had to the land. 2 B. 146. 2 Barr 97. The assignee of the lessee ought not to he charged with interest on arrears which accrued prior to the conveyance to him; but on subsequent arrears he is liable for interest. 9 C. 435. The executors of the covenantor in a ground-rent deed are not liable for ground- rent which accrued after his decease; the covenant does not survive against them, except as to arrears due in the lifetime of the covenantor. 10 H. 510. 11 H. 816. All the assignees of a lot of ground, subject to a ground-rent, though claiming by assignments of different dates, may be joined in an action for arrears of ground-rent accruing after their several assignments. 6 H. 9. Covenant will lie against an assignee of part of the thing demised. 2 P. R. 23. A distinct engagement on the part of a landlord with the assignee of the lessee, by which the former is accepted as tenant, and rent is received from him, does not relieve the lessee from the covenants of the lease. 8 Barr 111. 2 W. & S. 556. 19 Leg. Int. 93. Under a covenant by a lessee to pay the rent clear of all charges and assessments whatsoever, he must pay all taxes upon the land. 1 Br. 221. Under a lease wherein the tenant covenanted to pay “all taxes and assessments which may be made on the property during the term,” he is liable to an assessment for grading, paving, &., under an act of assembly passed subsequently to the date of his lease. Pittsburgh Leg. J., 3 December 1853. \ CRUELTY. 257 Otherwise, such assessments are chargeable to the owner of the freehold. 11 H. 805. See 2 Bradford 311. An action of covenant lies on an instrument under seal exclusively ; and not on a specialty modified or enlarged by parol. 2 W. 456. 6 W. & S. 448. Where a contract under seal is altered by parol, it all becomes parol, but a mere additional parol agreement, not changing or modifying the one under seal, will not a a effect, nor will a stipulation releasing or waiving part performance. 2 vr. 426, Cruelty. I. Abandoning infants. III. Cruelty to animals. II. Maltreatment of infants and apprentices. Act 31 Marcu 1860. Purd. 225, 2338. ' I. Sxcr. 45. If the father or mother of any child, under the age of seven years, or any person to whom such child shall have been confided, shall expose such child in any highway, street, field, house, outhouse or other place, with intent to wholly abandon it, such person shall be guilty of a misdemeanor, and upon conviction thereof, be sentenced to an imprisonment not exceeding twelve months, and to pay a fine not exceeding one hundred dollars. II. Szcr. 90. If'any master or mistress of an apprentice, or any person having the legal care and control of any infant, being legally liable to provide for such appren- tice or infant, necessary food, clothing or lodging, and shall wilfully, and without lawful excuse, refuse or neglect to provide the same; or when the master or mis- tress, or person having the legal care and control of such apprentice or infant, shall unlawfully and maliciously assault such apprentice or infant, whereby his life shall be endangered, or his health shall have been, or shall be likely to be permanently injured; such master, mistress or other person, on being thereof convicted, shall be guilty of a misdemeanor, and be sentenced to pay a fine not exceeding five hun- dred dollars, or to undergo an imprisonment not exceeding two, years, or both, or either, at the discretion of the court. II. Sxcr. 46. If any person shall wantonly and cruelly beat, torture, kill or maim any horse or other domestic animal, whether belonging to himself or another, every such person so offending shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding two hundred dollars, or underge an imprison- ment not exceeding one year, or both, or either, at the discretion of the court. 17 [ 258 J Custom and Gsage. WueEn the custom of a country, or a particular place is established, it may enter into the body of a contract without being inserted. 5 B. 287. : A custom or usage, to make it obligatory, must be ancient (at least sufficient] so to be generally known), certain, uniform and reasonable. 4 R. 212. 3 W. 179. An usage of plasterers to charge one-half part of the size of the windows, where the price agreed on includes the cost of materials, is unreasonable and bad. 3 Y. 318. Although an usage is often resorted to for explanation of commercial instru- ments, it never is, nor ought to be, received to contradict a settled rule of commer- cial law. 3 W. 179. A usage which is to govern a question of right between parties must be so cer- tain, uniform and notorious, as to be understood and known by them. 1 Gilp. 356. 1H. 37. 1 Wall. Jr. 64. Bright. R. 76, 365. 3 Am. L. J. 485. The usage of a department of government in settling its accounts can have no effect on those of an individual, unless it be certain, uniform and notorious. 1 Gilp. 356. Tipidense is admissible of a custom or usage fixing the construction of the words “inevitable dangers of the river’’ in a bill of lading for the transportation of goods on ariver. 8S. & R. 533. 2 B. 72. Where an usage is so established as to leave no reasonable doubt of its exist- ence, it becomes a part of the law, and the court will decide upon it as such, with- out requiring it to be again proved. 1 Pet. C. C. 280. Thus the rate of interest in China is so well established to be 12 per cent. per annum, that the court will not require it to be proved. Ibid. A custom which allows a payment of advance wages by the owners of a vessel to their own agent, and a payment by him to some boarding-house keeper, with whom the seamen must settle whether he be under legal obligation to him or not, is neither a reasonable nor a proper custom. 23 Law Rep. 551. On the sale of a raft, it is proper for the court to refer to the custom of the river, which required a measurement, certificate and payment of money, to com- plete the contract. 2 C. 467. . The rule of law in relation to fixtures, cannot be evaded by proving a custom in opposition to it. 4 C. 271. By the custom of Pennsylvania, a book account for goods sold, bears interest from the end of six months from the sale and delivery. 6 ©. 346. Where the usage of trade has fixed a period at which book accounts bear inte- rest, this becomes the law of the contract. Ibid. In an action by a bank against one of its customers, evidence is admissible of the custom of the bank to enter payments on account of an indorsement, on the indorser’s bank book; in order to rebut the presumption that would otherwise arise, that such entry was a deposit and not a payment. 9 C. 134. [ 259 J Damages. ‘ DaMaGEs signify, generally, any hurt or hindrance that a man receives in his estate; but in a particular sense, it is applied to what the jurors are to inquire of, and bring in, when any action passeth for the plaintiff. Co. Litt. 257. Damages are a species of property acquired 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 sus- tained ; as for battery, for imprisonment, for slander, for trespass. 2 Bl. Com. 438. A justice may give judgment for damages, without the intervention of referees, if neither of the parties request that referees may be appointed. 1S. & R. 284. A justice may give judgment for damages, in an action of trespass for entering plaintiff’s house, and making a noise and disturbance therein, although no actual loss be proved. 13 8. & R. 420. 18 Leg. Int. 29. The paramount rule in assessing damages is that every person unjustly deprived e his rights, should at least be fully compensated for the injury sustained. 2 C. 43. The ordinary rule of damages in trover is the value of the goods taken, with interest. 9 C. 251. Exemplary damages may be given in trespass, whenever there has been oppres- sion, outrage or vindictiveness on the part of the trespasser. But in the absence of proof of aggravation, compensation is the proper measure of damages. 10 C. 48. The measure of damages for seizing property in transit, is the value of the pro- perty, at the time, at the place of consignment, less the costs and charges of conveying it there. 5 O. 40. In an action against the publishers of a newspaper, for neglecting to insert an advertisement of a public sale of real estate, for which they received payment in advance, the measure of damages, in the absence of fraud, is the amount paid to them for the publication of such advertisement: they are not liable to speculative damages. 11 C. 107. In all actions for the breach of a contract, the loss or injury for which damages are sought to be recovered, must be a proximate consequence of the injury: a remote or possible loss is not sufficient ground for compensation. 12 C. 360. But the loss of profits or advantages which must have resulted from a fulfilment of the contract, may be compensated in damages, where they are the direct and immediate fruits of the contract, and must, therefore, have been stipulated for, and have been in the contemplation of the parties when it was made. 12 C. 360. 10 C. 9. , To entitle a plaintiff, however, in an action on a contract, to recover more than nominal damages for its breach, there must be evidence that an actual substantial loss or injury has been sustained; unless the contract itself furnish a guide to the measurement of damages. 12 C. 360. Generally, in actions upon contract, where the plaintiff fails in proving the amount due, or the precise quantity, he can recover only the lowest sum indicated by the evidence. Thus, where delivery of a bank note was proved, but its denomi- enation was not known, the jury were rightly instructed to presume it to be of the lowest denomination in circulation. 2 Greenl. Ev. § 255. In an action upon a warranty, the measure of damages is the difference between the actual value and the value of the thing when sound; and that, without regard to the price originally given, or obtained upon a resale. 4 Barr 168. 12 C. 405. The plaintiff cannot recover in damages the expenses of prosecuting a suit to enforce the contract. 5 C. 254. s [ 260 ] Debt. 1. Of debt, and its various kinds. III. Of the right of appropriation. TL. Of the joint and several liability of debtors. I. OF DEBT, AND ITS VARIOUS KINDS. A 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 when a man oweth a certain sum of money, by obligation or bargain for a thing sold, or by contract, &c:, and the debtor will not pay the debt at the day agreed. Selw. N. P. 484. Debt is a contract whereby a chose in action, or right to a certain sum of money, is mutually acquired and lost. Any contract whereby a determinate sum of money becomes due to any person, and is not paid, but remains in action merely, is a con- tract of debt; and taken in this light, it comprehends a great variety of acquisi- tions, being usually divided into debts of record, debts by specialty, and debts by simple contract. A debt of record is a sum of money which appears to be due by the evidence of a court of record. Debts by specialty or special contract, are such whereby a sum of money becomes, or is acknowledged to be due by deed or instru- ment under seal. Debts by simple contract are such where the contract upon which the obligation arises is matter not ascertained by matter of record, nor yet by deed or special instrument, but by mere oral evidence, the most simple of any, or by notes unsealed. 2 Bl. Com. 465. It seems that wherever indebitatus asswmpsit lies, debt may be brought. 1 Pet. C. C. 149. Debt lies to recover the annual interest of money payable on bond, where the principal is not due. 1 B. 152. An action of debt will not lie upon a mortgage which contains no express cove- nant to pay, and therefore creates no personal responsibility. 7 W. 360. In a suit on a penalty by the party aggrieved, damages may be recovered for the detention ; secus, if the suit be by a common informer. 2 R. 196. A verdict for the plaintiff generally in an action of debt, without finding any sum, is bad; and the judgment will be reversed on error. 2 R. 58. A verdict in an action of debt for a larger sum than that demanded in the writ, is good, if the excess appear to be interest on the principal sum. 1 W. 428. Debts may be attached before they are due and payable. 1 Sm. 47. 8 H. 412. A debt in suit may be attached. 2 D. 277. 1 Barr 380. II. Or THE JOINT AND SEVERAL LIABILITY OF DEBTORS. If two enter into a bond, and one die before judgment, the survivor shall be charged alone. 7 S. & R. 363. Bright. R. 65. In all suits now pending or hereafter brought in any court of record in this com- monwealth, against joint and several obligors, copartners, promissors or the indorsers of promissory notes, in which the writ of process has not been or may not be served on all the defendants, and judgment may be obtained against those served with pro- cess, such writ, process or judgment shall not be a bar to recovery in another suit ae me defendant or defendants, not served with process. Act 6 April 1880, § 1. urd. 776. {n all cases of amicable confession of judgment by one or more of several obligors, copartners or promissors, or the indorsers 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. Ibid. § 2. This act applies to proceedings before a justice of the peace. 8 W. 203. Itisa remedial statute, and to be liberally construed. 5 Barr 401. 1 J. 394. Joint owners of a steamboat are within the act. 1 J. 394. It is applicable to cases, not only of joint contract, but also of joint action. 6 Wh. 268. The original process should be issued against all the defendants. 5 Barr 402. The second writ should be issued only against the defendant not served: 6 W. 528. DEBT, 261 And from the same forum: otherwise it will not take the case out of the statute of limitations. 2 H. 313. The act does not extend to tne case of a defendant dying pending the action. 2 W. 204. 1 W.& 8. 112. A plaintiff by accepting the voluntary appearance of two joint obligors to a writ issued against three, and proceeding to judgment and execution, does not debar himself of the right to proceed against the one not served. 5 Barr 399. The second section of the act of 1830 has reference to subsequent separate actions against the parties. If, in a joint action, the plaintiff accept a confession of judg- ment from one of the defendants, it is a bar to further proceedings against the others. 2 T. & H. Pr. 484. Where a judgment shall hereafter be obtained against two or more copartners, 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 personal, from the payment thereof; but the same shall be payable by his or their executors or ad- ministrators, as if the judgment had been several against the deceased alone. Act 11 April 1848, § 3. Purd. 776. In any suit or suits which may hereafter be brought against the executors or ad- ministrators of a deceased copartner, for the debt of the firm, it shall not bé neces- sary 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. Ibid. § 4. Where a judgment shall be hereafter recovered against one or more of several co- partners, or joint and several o:ligors, promissors or contractors, without any plea in abatement, that all the parties to the instrument or contract on which the suit is founded, are not made parties thereto, such judgment shall not be a bar to a re- covery 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. Ibid. § 5. This act renders the deceased partner’s estate liable, in the first instance, whether the survivor be solvent or insolvent. 8 C. 115. The judgment recovered against the surviving partner, it seems, is not evi- dence against the representatives of the deceased partner, for they are no parties to it. 10 C. 411. But the surviving partner is a competent witness for the plaintiff. 18 Leg. Int. 124. A receipt not under seal, to one of several joint debtors, for his part of the debt, if given for a valid consideration, discharges the other altogether. 1 R. 391. But this is altered by the act 22 March 1862. Purd. 1282. By the law of Pennsylvania, as it is now settled, a discharge, acquittance or re- lease of a debt, is, though secured by a formal sealed instrument, as valid without a seal as with it. Ibid. 398. But it requires proof of a consideration to support it. 9 C. 268. ‘ Where one of several principals pays the amount of a judgment against them all, he is not entitled to an assignment of the judgment so as to obtain contribution, in the same manner that a surety would be entitled to be substituted, when he pays the debt of his principal. 1 P. R. 361. When there are two joint debtors, and the creditor has the means of satisfaction in his hands by legal process levied on the property of one, and chooses not to retain it, but suffers it to pass from his hands, the other debtor is discharged pro tanto [for so much]. 168. & R. 252. III. OF THE RIGHT OF APPROPRIATION. Where a debtor indebted on several accounts makes a payment, he may apply it to either account; if he does not, the creditor may do so; if neither does, the law will appropriate it according to the justice of the case, provided there are no other parties interested. 1 Gilp. 106. , But a debtor cannot appropriate a payment in such a manner as to affect the re- lative liability or rights of his different sureties without their assent. Ibid. : Although, as between the immediate parties, the creditor has a right to appropriate where the debtor has failed to do so, yet this right must be exercised within a reason- 262 DEBTOR AND CREDITOR. able time after the payment, and by the performance of some act which indicates an intention to appropriate. 12 8. & R. 305. . And where there is a third person whose interests will be affected by the resul of a particular appropriation by the creditor, it will not be permitted. Ibid. If a payment be made by a county treasurer, on account of his indebtedness to the commonwealth, without any distinct appropriation of the amount, it is competent for the accounting officers to appropriate it to the payment of the indebtedness of the treasurer, for which the sounty is not liable. 12 C. 524. It is to be presumed, in the absence of any actual appropriation, that a debtor paying money intends to apply the payment to a debt then payable, and bearing in- terest. 10 W. 255. Where a general payment is made, in the absence of any appropriation by the parties, the law will apply it in discharge of the earliest liabilities of a running ac- count. 9 0.151. 2 Gr. 28. Where no application of a payment is made either by the debtor or the creditor, the law will apply it in the way most beneficial to the creditor; and therefore, to the debt which is least secured, unless to the prejudice of a surety. Ibid. If the creditor, in the absence of any appropriation by the debtor, credit a pay- ment generally on an open account, the law will not afterwards appropriate it to a judgment, although older than the account; especially if the creditor have security for the judgment and none for the account. 1 C. 411. The application of payments may be proved by circumstances, as well as by words. 7 Blackf. 236. 2 J. 238. Story’s Hq. § 459 b. Debtor and Creditor, Of the extinguishment and satisfaction of debts; and of collateral securities. ' A cHECK drawn by one person in favor of another, and paid to the latter, is pre- sumed to have been received on account of a.debt shown to have existed at the time. 5 C. 128. But where the check of a third party is received by a creditor from his debtor, upon a pre-existing debt, the presumption is, that it was received as a conditional payment, and as satisfaction of the debt, if and when paid. 5 C. 448. A paid check, drawn by the defendant’s wife, is evidence of payment, in the absence of proof of any other transaction to which it could be applied. 9 CO. 285. Promissory notes given by a purchaser to a vendor are evidence of payment, but not of set-off, and, unless it otherwise appear, should be presumed to have been given for a pre-existing debt, and not for debts contracted afterwards. 4 C. 241. The receipt of a negotiable promissory note operates as an extinguishment of a prior existing debt, if so intended between the parties. 8 CO. 493. The general rule seems to be,that if one indebted to another, by simple con- tract, give his creditor a promissory note, drawn by himself, for the same sum, without any new consideration, the new note shall not be deemed a satisfaction a o original debt, unless so intended and accepted by the ereditor. 15 8. & Whether a note or bond were accepted in satisfaction of the original claim, is mat- ter of fact for the jury, and it is error for the court to decide it as matter of law. 108. & R. 807. 4 H. 450. But, if the amount be lost by the negligence of the person to whom it was trans- ferred, it is to be considered as payment of the debt. 2 W. C. C. 191. If a creditor take a note from his debtor, indorse it, and get it discounted at bank, and apply the proceeds to the credit of the maker, and afterwards the note be pro- tested and paid by the creditor, this is not such a parting with the note as makes it an extinguishment of the preceding debt. 3S. & R. 233. A confession of judgment by a third person to the plaintiff, for a simple con- DEBTOR AND CREDITOR. 263 a debt due from the defendant to the plaintiff, is not a merger of the debt. 11 8. & BR. 149. Nor is the judgment a payment or extinguishment of the debt, unless it were so intended and agreed by the parties. Ibid. A bill or note taken in satisfaction of a precedent debt, imposes no further duty on the creditor, than to use reasonable diligence in obtaining payment or acceptance, by presenting it in season, and giving notice of its dishonor to the debtor from whom it was had, if he be a party to it; butif he be not a party te it, even want of notice is immaterial, unless he have sustained actual loss from it 4 W. 308. . Where a negotiable note has been given for the price of goods sold by the plaintiff to the defendant, and the plaintiff brings suit upon the original contract, the note must be produced at the trial, or it must be proved to have been lost or de- stroyed. Ibid. 452. It is well established, that the receipt of one thing in satisfaction of another, is a good payment; as the acceptance. of a horse in lieu of a sum of money; or, of a bond by a third person, in discharge of a prior obligation. 1 D. 217. But an agreement, without any consideration, to receive a less sum from the debtor, does not extinguish, nor is it a satisfaction of the original debt. 2 W. C. Cc 180. 3 W. 319. ; An agreement to deliver goods, or a less sum of money and goods for the residue, in discharge of a greater sum owing and payable, must be fully executed, and the goods, or money and goods, accepted in satisfaction thereof; otherwise it is no ex- tinguishment of the original debt or demand. Ibid. 128. 2 Greenl. Hv. § 28. But the payment of part of a debt, in satisfaction, if the creditor agree to receive the smaller sum in full, is a discharge of the whole demand, when such agreement is fully executed. 2 Am. L. J. 186. One who receives a counterfeit note in payment from an innocent person, and re- tains it six months, is guilty of unreasonable regligence, and cannot recover of the person from whom he received it. 188. & R. 318. 1 Pet. C. C. 307. A specialty received as collateral security, for a simple contract debt, does not ex- tinguish the simple contract. 18. & R. 294. A promissory note of a third person, received as collateral security for a debt, may be sued, and the amount recovered when due, without first resorting for payment to. the original debtor. 4 W. 141. If a claim be transferred by a debtor to his creditor as collateral security for the payment of a debt, it is incumbent on such creditor to use ordinary diligence to realize the claim; and he would be responsible for loss occasioned by an omission to doso. 12 0. 89. But if the transfer be of a special character, authorizing the creditor to receive the claim when collected, then it imposes no responsibility on the creditor as to the diligent prosecution of it. 8 W. 192. : A creditor cannot split up an entire cause of action, so as to maintain two suits upon it. If he do, a recovery in the first suit, although for less than his whole claim, is a bar to the other suit. 11S. & R. 78. There is no principle of law which will sanction an action by a creditor against the debtor of his debtor, upon the ground of contract. 1 Pet. C. C. 276. 1D. 155. Where a debtor owes two parties, one of them may accept payment in any thing of value he can get, though he know that the debtor owes the other party and can- not pay both. 2 C. 85. [ 264 ] Deeds, I. Probate and acknowledgment of deeds. III. Execution <€ deeds. II. Forms of acknowledgment, &c. I. Act 28 May 1715. Purd. 310. Szcr. 1. There shall be an office of record in each county of this province [state] which shall be called and styled THE OFFICE FOR RECORDING OF DEEDS, and sha be kept in some convenient place in the said respective counties, and the recorder shall duly attend the service of the same, and at his own proper cost and charges shall provide parchment, or good large books of royal or other large paper, well bound and covered, wherein he shall record, in a fair and legible hand, all deeds and conveyances which shall be brought to him for that purpose, according to the true intent and meaning of this act. Szor. 2. All bargains and sales, deeds and conveyances of lands, tenements and hereditaments, in this province, may be recorded in the said office; but before the same shall be so recorded, the parties concerned shall procure the grantor or bar- gainor named in every such deed, or else two or more of the witnesses (who were present at the execution thereof) to come before one of the justices of the peace of the proper county or city where the lands lie, who is hereby empowered to take such acknowledgment of the grantor, if one, or of one of the grantors, if more. Szcr. 3. But in case the grantor be dead or cannot appear, then the witnesses brought before such justice shall, by him, be examined upon oath or affirmation, to prove the execution of the deed then produced: whereupon the same justice shall, under his hand and seal, certify such acknowledgment or proof, upon the back of the deed, with the day and year when the same was made, and by whom; and after the recorder has recorded any of the said deeds, he shall certify on the back thereof, under his hand and seal of his office, the day he entered it, and the name or number of the book or roll, and page where the same is entered. Sxcr. 4. All deeds and conveyances, made and granted out of this province, and brought hither and recorded in the county where the lands lie, (the execution whereof being first proved by the oath or solemn affirmation of one or more of the witnesses thereunto;before one or more of the justices of the peace of this province, or before any mayor, or chief magistrate or officer of the cities, towns or places where such deeds or conveyances are so proved, respectively,) shall be as valid as if the same had been made, acknowledged or proved, in the proper county where the lands lie in this province [state. ] Sect. 5. All deeds and conveyances made, or to be made, and proved or acknow- ledged, and recorded as aforesaid, which shall appear so to be, by indorsement made thereon, according to the trne intent and meaning of this act, shall be of the same force and effect here, for the giving possession and seisin, and making good the title and assurance of the said lands, tenements and hereditaments, as deeds of feoffment, with livery and seisin, or deeds enrolled in any of the king’s courts of record at Westminster, are, or shall be in the kingdom of Great Britain; and the copies or exemplifications of all deeds so enrolled, being examined by the recorder, and certi- fied under the seal of the proper office, (which the recorder or keeper thereof is hereby required to affix thereto,) shall be allowed in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law as the original deeds themselves, or as bargains and sales enrolled in the said courts at Westminster, and copies thereof can be, and the same may be showed, pleaded and made use of accordingly. Szor. 7. If any person shall forge any entry of the said acknowledgments, certifi- cates or indorsements, whereby the freehold or inheritance of any man may be changed, he shall be liable to the penalties against forgers of false deeds, &. ; and if any person shall perjure himself in any of the cages herein above-mentioned, he \\ ’ DEEDS, 265 shall incur the like penalties-as if the oath or affirmation ‘ad been in any court of record.(a) Act 24 Frsruary 1770. Purd. 311. Szcr. 2. Where any husband and wife shall hereafter incline to dispose of and convey the estate of the wife or her right of, in or to, any lands, tenements or hereditaments whatsoever, it shall and may be lawful to and for the said husband and wife, to make, seal, deliver and execute any grant, bargain and sale, lease, release, feoffment, deed, conveyance or assurance in the law whatsoever, for the lands, tenements and hereditaments intended to be by them passed and conveyed, and after such execution, to appear before one of the judges of the supreme court, or before any justice of the county court of common pleas of and for the county where such lands, tenements or hereditaments shall lie, and to acknowledge the said deed or conveyance, which judge or justice shall, and he is hereby authorized and required to take such acknowledgment, in doing whereof he shall examine the wife separate and apart from her husband, and shall read, or otherwise make known, the full contents of such deed or conveyance to the said wife; and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal, and as her act and deed, deliver the said deed or conveyance, without any coercion or compulsion of her said husband, every such deed or conveyance shall be, and-the same is hereby declared to be, good and valid in law, to all intents and purposes, as if the said wife had been sole, and not covert, at the time of such sealing and delivery, any law, usage and custom to the contrary in any wise not- withstanding. Act 18 Marcu 1814. Purd. 314. Szcr.:1. Hach alderman of the city of Philadelphia and justice of the peace of this commonwealth, shall have power to take and receive the acknowledgment or proof of all deeds, conveyances, mortgages or other instruments of writing, touching or concerning any lands, tenements or hereditaments, situate, lying and being in any part of this state, and also power to take and receive the separate examination of any feme covert touching or concerning her right of dower, or the conveyance of her estate, or right in or to any such lands, tenements or hereditaments, as fully to all intents and purposes whatsoever, as any judge of the supreme court, or pre- sident or associate judge of any of the courts of common pleas within this com- monwealth.(b) (a) This section is not expressly repealed by the revised Penal Code, and does not appear to be fully supplied by it. (5) 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 asso- ciate judge of the court of common pleas in any county, or the mayor or recorder of the cities of Philadelphia, Lancaster or Pittsburgh, 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 mayor, chief magistrate or officer of the city, town or place 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 com- mon 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 4 the United States, ‘and so certified under the hand of the said judge and seal of the court, or before any commissioner residing out of the state of Pennsylvania and in any other of the United States, or in the District of Columbia or any of the territories, authorized for that purpose by the governor of this commonwealth. If made and executed in any foreign state, they may be acknowledged or proved before any mayor, or chief magistrate, or officer of the cities, towns or places where such deeds or conveyances are or shall.be made or exécuted, 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 functions in the state, kingdom, county or place where such deeds or conveyances, &c., may or shall be made and executed, and cer- tified under the public official seal of such consul or vice-consul of the United States ; or before ‘any commissioner appointed for that purpose by the governor of this state. It has 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 DEEDS. Act 11 Aprin 1848. Purd. 322. Sxor. 6. 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 property; 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 incumbered 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: 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 protéct the property of any such married woman from 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. Act 11 Aprin 1856. Purd. 323. Sect. 1. So much of the act relating to the right of married women, and for other purposes, passed the 11th April 1848, as requires the consent of a married woman to be first had and obtained, or the acknowledgment of her deed or mort- gages, when conveying her own real estate, to be made differently from that which she is‘authorized to make when she joins her husband in conveying his real estate, to bar her right of dower therein, is hereby repealed; and all deeds or mortgages of any married woman heretofore acknowledged jointly with her husband, so as to bar her right of dower or interest in her husband’s lands, shall be effectual and valid to debar her in respect to her own real estate. 266 II. Forms oF ACKNOWLEDGMENT, &c. 1. For ong PERSON. COUNTY OF CHESTER, ss. Tuz —— day of ——,, a. v. 1860, before the subscriber, one of the justices of the peace in and for the county aforesaid, personally came the within-named A. B., and in due form of law acknowledged the above-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 aforesaid. C. D., Justice of the Peace. [szax.] 2. ACKNOWLEDGMENT BY VIRTUE OF A LETTER OF ATTORNEY. CITY OF PHILADELPHIA, ss. Tue —— day of —, a. p. 1860, hefore J. S., mayor of the said city, personally came the above-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 con- stituents, 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. itnesa my hand and seal, the day and year aforesaid. J. S., Mayor of the City of Philadelphia. [szat.] the acknowledgment were justices of the authorize them fo take the separate examination 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. 6 B. 296. 38 Y. 424. : The power of commissioners, under the act of 14th day of April 1828, does not extend to of femes covert [married women]. The power is limited to “acknowledgments and proof of execution,” and has no express reference whatever to conveyances by femes covert. It is therefore believed, and with good reason, that deeds so acknowledged will not pass the estates of femes covert. DEEDS. 267 3. ACKNOWLEDGMENT BY HUSBAND AND WIFE. CITY OF PHILADELPHIA, ss. Taz —— day of ——, a. p. 1860, 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 ull age, and separate and apart from her said husband, by me thereon privately examined, and the full contents of the above (or within) deed being by me first made known unto hex, 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 Tne en indenture, deed or conveyance, without any coercion or compulsion of her said husband. Witness my hand and seal, the day and year aforesaid. 8. B., Alderman. [szat.] 4, PRopatE OF A DEED. CITY OF PHILADELPHIA, ss. BE IT REMEMBERED, that on the day of ——, a. p. 1860, 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. subscribe 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 affirm- ant’s own proper and respective handwriting. (Signed) A.B. Affirmed and subscribed, the day and year aforesaid, before me. Witness my hand and seal. P.C., Alderman. [szat.] 5. ANOTHER FORM OF PROOF. COUNTY OF DAUPHIN, ss. Br IT REMEMBERED, that on the —— day of , in the year of our Lord 1860, before 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 subscribed to the said indenture as the party executing the same, is of the proper hand- writing of the said E. F.; and that the names G. H. and C. D.,; also set and subscribed to the said indenture as the witnesses attesting the due execution thereof, are of the respec- tive proper handwritings of the said G. H. and of this affirmant. (Signed) C.D, Affirmed and subscribed, theeday and year aforesaid, before me. Witness my hand and seal. A. B., Justice of the Peace. [sat.]* 6. ProBaTE OF A DEED BY A CORPORATION. CITY OF PHILADELPHIA, ss. Bg IT REMEMBERED, that on the —— day of ——, in the year of our Lord one thousand eight hundred and sixty, before me, A. H., Esq., mayor of the said city, personally appeared T. D., Esq., president of the above-named corporation, and, being duly sworn, deposeth and saith, that he was personally present at the execution of the above-written indenture or deed of conveyance, and saw the common seal of ‘‘ The Philadelphia Bank” duly affixed thereto, and that the seal so affixed thereto is the common and corporate seal of “ The Philadelphia Bank” aforesaid; and that the above-written indenture or deed of conveyance was duly sealed and delivered by and as and for the act and deed of “The Philadelphia Bank” aforesaid, for the uses and purposes therein mentioned ; and that the name of this deponent subscribed to the said deed, as president of the said corporation, in attestation of the due execution and delivery of the said deed, is of this deponent’s own proper and respective handwriting. worn.and subscribed, the day and year aforesaid, before me. Witness my hand and seal. A. H., Mayor of the City of Philadelphia. [szau.] 7. ATTESTATION WHERE THERE ARE INTERLINEATIONS OR ERASURES, &e. Sicnxp, 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. 268 DEEDS. 8. By a BLIND PERSON. Tux above-written instrument was signed, 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. 9. ATTESTATION OF THE EXECUTION OF A DEED BY A PERSON DEAF AND DUMB. Memoranvum. 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 wae first read over by him, and he seemed perfectly to understand the same, in the presence of us, &e. (Signed) A. B, and C. D., witnesses. 10. Recrtpr on A DEED. Recetvep, the day of the date of the above-written indenture, of the above-named KE, F., the sum of —— dollars, being the full consideration-money therein mentioned. III. 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. 2 Thomas’ Oo. Litt. 263, (224.) 2 Bl. Com. 295. The signing of a deed is now the material part of the execution. A written or ink seal is good. 1 D. 64. 18. & R. 72. A deed is good without subscribing witnesses. It is enough if there be a sealing and delivery. 18. & R. 72. It should be recorded within six months. Act of March 28, 1820. 2 B. 497. 4 B. 140. The date of a deed is prima facie evidence of the time of delivery, but it is not conclusive. 1 P. R. 402. From the fact of signing the jury may presume the sealing and delivery, although there be\no reference to sealing in the body of the writing, if there be a seal affixed to the name. 4 C. 413. The presumption of the delivery of a deed, arising from the fact of its being recorded, is one that may be rebutted and destroyed by counter evidence. 10 C. 252. Where there is a contract of purchase, or an equity of any sort, pre-existing in the grantee, the law will, in behalf of creditors, carry back the delivery, by rela- tion, to the date of the deed. But it is otherwise, as to a voluntary conveyance ; actual delivery, in such case, is essential to vest any interest in the land. 12 C. 383. Where a party produces a deed from a third person, purporting on its face to have been duly executed and acknowledged, the possession of it, by the grantee, or by the person producing it, is prima facie evidence of delivery. 3 C. 80. If a graritor execute a deed and retain it in his possession, and the grantee request its delivery to a third person, and the grantor give the deed to such third person, to be handed over to the grantee, when he calls for the same, it is in law a delivery of the deed, though not handed over to the grantee and found among the grantee’s papers after his death. 2 C. 422. ; A deed executed by. husband and wife, for lands of the wife, but not delivered in her lifetime, cannot be rendered effectual to pass the estate, as against the heirs of the wife, by a delivery after her decease. 10 OC. 24. 1 Wr. 87. As to what facts are sufficient to rebut the presumption of the delivery of a deed, arising from the fact of its being recorded. See 10 C. 252. It is not necessary for a witness making probate of a deed, to sign the probate ; the certificate of the magistrate is sufficient. 5 W. & 8. 223. The certificate should state the official character of the officer, but if it do not, it may be proved adiwnde. 11 8. & R. 347. 7 W. 334. 138 8. & R. 386. 8 H. 452. 11 H. 231. A grantee in a deed which has been duly acknowledged, is at liberty, if the oo be not satisfactory, to make probate of it by a subscribing witness. . 247. A justice of the peace cannot take an acknowledgment of a deed out of his proper county. 78. & R. 43. 1 Ash. 131. DEEDS. 269 He is poe to indorse on the deed a certificate of the acknowledgment. 1 B. 480. 9 8. & R. 273. A justice bound to make title by a conveyance from a third person, is‘ incompe- tent to receive the acknowledgment of the grantor’s wife. 7 W. 227. It must appear by the justice’s certificate, that the wife was examined separate and apart from her husband. 1 B. 470. 5S. & R. 289, 584. 9S. & R. 268. But a privy examination is not requisite; itis sufficient that the husband be absent, although it take place in the presence of others. 5 8. & R. 523-34. The wife will be presumed to have been of full age, unless the contrary be shown. Pet. C. 0. 452. If it do not appear that the contents of the deed were made known to the wife, the acknowledgment is invalid, and the wife’s title does not pass. 6S. & R. 49. 145. & R. 84. 158. & R. 72. The certificate ought to state substantially that the wife was separately examined ; that she had a knowledge of the nature and consequences of the act she was about to perform ; and that her will, in the performance of it, was free. 4 8. & R. 272 3 C. 22. It is sufficient if the certificate state that she voluntarily assented to the deed; 6 B. 485: or did voluntarily seal and acknowledge; 8 Wh. 457: or that she freely executed, &c.; Pet. C. C. 453, 188. It must appear by the certificate, in some way, that she executed the deed, with- out any coercion or compulsion of her husband. 6 8. & R. 143-5. Defects in the certificate cannot be aided by parol testimony. 1B. 470. 98. & R. 268. 15 8. & R. 72. Nor can it be contradicted, except in cases of fraud and imposition. 3 Wh. 457. 15 8S. & R. 72. Or, of concealed duress of the wife. 9 Barr 14. If the husband use his influence and power over the wife, in such manner as to control her unduly, and so as to make her act under Ais will, and not her own, the deed is void. 3 C. 22. The certificate of the magistrate is conclusive in favor of one who accepted it in good faith, and paid his money, without knowing, or having reason to suspect, that it is untrue. Ibid. In such cases knowledge of the falsity of the certificate ought to be brought home to the grantee, or of such facts as are sufficient to put him on the inquiry. 4H. 451. This doctrine, however, is not applicable to the case of a mortgagee of a married woman’s property. A justice’s certificate of the wife’s separate acknow- ledgment, which is false in fact, will confer no rights on a mortgagee. 2 Wr. 334. But if the certificate be false in fact, and the grantee knew it, or knew of cir- cumstances which should put an honest and prudent man upon inquiry, then it may be contradicted by parol evidence. 3 C. 22. : When the certificate is overthrown by evidence that the examination was in the presence of the husband, or that the wife was not properly informed as to. the nature of the transaction, or that she was under the influence of fraud or coercion, it goes for nothing. Ibid. Until delivery of the deed, the wife may revoke her assent, notwithstanding the acknowledgment. 1 H. 85. A deed not executed in conformity with the act of 1770, will not pass the wife’s right of dower. 2 B. 341. 58. & KR. 289. 75. & RK. 43. 158. & RK. 72. A deed by a married woman conveying her separate estate, to which her husband is not a party, is void. 4H.484. And so is a release of dower. 7 Barr 287. And the act of 1848 has not altered the law in this respect. 6 H.506. 7 H.361. 1C. 326. 3°C. 218. The act of 1848 only applies to cases where the husband, by the wife’s authority, undertakes to transfer or incumber her estate; it makes no change in the form of acknowledgment where both join in the deed. 12 H. 253. 1. 142. The record of a deed is constructive notice to all mankind. 1 Y. 178. When a party executes a deed with a blank in it, which is afterwards filled up, with his assent, and he subsequently acknowledges the deed, it is valid, the filling up of the blank will not avoid it. 4 Bingh. 123. 1 Greenl. Ev. § 568, a 270 DEEDS. Tf a deed which has been executed and acknowledged by the grantor, with a blank for the grantee’s namé, be surreptitiously and fraudulently taken from the grantee’s house, and the blank filled up, no title passes thereby; and a bond fide purchaser, for a valuable consideration, stands in no better situation than such fraudulent holder, especially if the original grantor remain in possession of the pro- perty. 4 Wh. 382. 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. 876. The registry of a deed, defectively proved or acknowledged, is not evidence of notice to a subsequent purchaser. 3 Y. 186. 2 B. 40. 5 Barr 145. The recording of an instrument not within the purview of the recording acts, will not make a certified copy of it legal evidence. 4 R. 444. 7W.&8. 16. 11 C. 269. Where two deeds are made, of different dates, from the same grantor to different persons, neither of which is recorded within six months, that which is first recorded will take priority. 5 W. & S. 49. An alteration in a deed, by a party claiming under it, aftér its execution, will render it void. 1 Greenl. Ev. § 564-8. 3 H. 462. 8 H. 12. Thus the addi- tion of subscribing witnesses, if fraudulently done, without the consent of one of the parties, will avoid it as to him. 8 Barr 378, 518. An interlineation in a.deed, in the absence of testimony, is presumed to have been made before execution; for, if altered afterwards, it would be a fraud, which is never to be presumed. 1 Greenl. Ev. § 564, n. 4. 2 Eng. L. & Eq. 102. Math. Pr. Ev. 39. 3 H. 281. Where a deed, bond or other instrument is offered with an interlineation or erasure that is material, it is a question for the jury under all the circumstances, whether the alteration were made before or after signature. 11 H. 249. 8 C. 423. The conveyance of an estate which lies in livery, and not in grant, is not avoided by.an alteration in a material part of it; for the title, being vested by a deed having by statute the force of livery of seisin, can be revested only by a reconveyance. But an alteration of a bond, bill or note, stands on a different principle. When it is made by a voluntary act of the creditor, and increases or injuriously affects the responsibility of the debtor, whatever the motive for it, the security is gone 7 H. 122 3. 244. 11 C. 80. And see 7 C. 322. [ 271] Delalcation. I. The statutes regulating set-off. III. Of the subject-matter of set-off. Il. eae on parties set-off may be IV. Of set-off before a justice of the peace. allowed. I. SrarurTEes REGULATING SET-OFF. Ir two or more dealing together be indebted to each other upon bonds, bills, bargains, promises, accounts or the like, and one of them commence an action in any court of this province, if the defendant cannot gainsay the deed, bargain or assumption upon which he is sued, it shall be lawful for such defendant to plead payment of all or part of the debt or sum demanded, and give any bond, bill, receipt, account or bargain in evidence; and if it shall appear that the defendant hath fully paid or satisfied the debt or sum demanded, the jury shall find for the defendant, and judgment shall be entered that the plaintiff shall take nothing by his writ, and shall pay the costs; and if it shall appear that any part of the sum demanded be paid, then so much as is found to be paid shall be defalked, and the plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury that the plaintiff is overpaid, then they shall give in their ver- dict for the defendant, and withal certify to the court how much they find the plaintiff to be indebted or in arrear to the defendant more than will answer the debt or sum demanded, and the sum or sums so certified shall be recorded with the verdict, and shall be deemed as a debt of record. Act of 1705, §1. Purd. 381. In all cases where, by the verdict of a jury, any debt or damages shall have been found or certified in favor of the defendant, he shall be entitled to’ judgment and execution in like manner as if the verdict were in favor of the plaintiff. Act 11 April 1848, § 12. Purd. 331. A defendant who shall neglect or refuse in any case to set off his demand, whether founded upon bond, note, penal or single bill, writing obligatory, book account or damages on assumption, against a plaintiff, which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be, and is hereby, for ever barred from recovering against the party plaintiff by any after suit: but in case of judgment by default, the defendant, if he has any account to set off against the plaintiff’s demand, shall be entitled to a rehearing before the justice within thirty days, on proof being made, either on oath or affirmation of the defend- ant, or other satisfactory evidence, that the defendant was absent when the process was served, and did not return home before the return day of such process, or that he was prevented by sickness of himself, or other unavoidable cause; and the justice shall have power to render judgment for the balance in favor of the plain- tiff or defendant, as justice may require. Act 20 March 1810, § 7. Purd. 597. II. BETWEEN WHAT PARTIES. Debts which can be set off must be such as are due in the same right. 2 Y. 208. 3 P. R. 492. It may be stated as a general rule, that the person having the right of action may set off a debt due to him as a trustee, against a debt due by him in his own right. 68. & R. 244. It is not essential that the defendant should be able to sue for the demand in his own name. 3 B. 135. The defalcation act of Pennsylvania has uniformly been construed to admit of a set-off, either by or against an executor or administrator. Ibid. In an action by an administrator, on a promissory,note given by the defendant to him, for the purchase-money of goods of the intestate sold by the plaintiff to the defendant, the defendant cannot set off a debt due by the intestate to him. 10 8. & BR. 10. A surviving partner, sued as such, may set off a debt due by the plaintiff to him in his individual capacity. 11S. & R. 48. 272 DEFALCATION. One of two defendants may set off a debt due to him by the plaintiff, unless there be some superior equity in a third person. 12 S. & R. 252. 9 Ibid. 68. But a debt due by the plaintiff to a co-obligor not summoned cannot be set off against the joint debt. 9 Ibid. 379. A debt due from the plaintiff to the defendant, and another, who was not sum- moned, is a good set-off against the plaintiff’s demand on the obligor who is sum- moned. 2 R. 121. In an action by two or more administrators, the defendant cannot set off a debt due to himself by one of the administrators unconnected with the estate in right of which the action is brought. 2 R. 111. In an action by A. the defendant cannot set off an account for goods sold to A. and B. as partners. 14 8. & R. 300. In an action brought for the use of three persons, the defendant cannot set off a separate claim against each ‘of them. 7 W. 344. . A debtor may set off a debt due him by his creditor at the time of his death though the estate of the creditor be insolvent. 8 Barr 403. 11 H. 167. Set-off is only allowable in favor of a defendant; consequently there can be no such thing as set-off against set-off. 4 W. & 8.19. 1 H. 181. Set-off is allowed in order to prevent multiplicity of actions, and ought not to be allowed so as to be the cause of new disputes. 7 C. 72. An action on a due-bill, not negotiable, assigned to a third party long after its date, is to be regarded as between the original parties, and to subject to every legal set-off the maker may have against the payee. 5 C. 476. Tn an action by one of several partners for his individual debt, an unsettled claim against the firm cannot be set off, even though it were out of the same transac- tion, 1 Wr. 456. III. SussEct-MATTER OF SET-OFF. It seems, that in all cases where the cause of action, which the defendant wishes to set off, arises from the same transaction on which the plaintiff founds his action, it may be defalked. 18. & R. 477. Equitable as well as legal demands may be set off in Pennsylvania. 3 Binn. 185. 8S. & R. 88. One judgment may be set off against another, when both are in the same-right, though in different courts. 3 Y. 132. 1 M. 10. But it is only permitted where it will infringe on no other right of equal grade; consequently, it is not permitted to affect an equitable assignee for value. 2 W. 228. In an action to recover the price of cattle, the defendant may give in evidence, by way of set-off or equitable defence, that he had sustained damages by reason of the plaintiff not having delivered to him certain sheep purchased by him, at the same time, of the plaintiff, in an entire contract. 12 8. & R. 275. Unliquidated cross-demands, arising out of a distinct contract, may be set off pager Guy statute. 6 W. & 8. 150, 155, 179, 439. 4 W.& 8. 290. 5 W.& S. 459. A debt not due at the commencement of the suit, cannot be set off. 8 D. 505. 1W. & 8. 418. 1 H. 552. A plea of set-off cannot be supported by a defendant upon a claim against the en acquired after the institution of the suit. 9 W. 126. 10 H. 116. 50. Buying the plaintiff’s paper before action brought, entitles. the defendant to set- off. 1 D. 452. But the mere possession of a note, which is offered as a set-off, is not evidence that it belonged to the defendant at the commencement of the suit. It is incum- bent on him to show that it was acquired in proper time. 10 H. 116. 5 C. 192. Tn an action on a promissory note given by the defendants in favor of the plain- tiff, it was held, that the defendants might set off a debt due by the plaintiff to a company or partnership of which the defendants were members, the other members of the company or partnership authorizing the same. 5 Wh. 879. A set-off is not admissible, where the demand against the plaintiff arises from an act done by him of a tortious nature. 5 8. & R. 122. 14 Ibid. 439. DEFALCATION. 273 But the défendant may give evidence of acts of nonfeasance or misfeasance by the plaintiff, where these acts are immediately connected with the plaintif’’s cause of action, such evidence not being admitted by way of defalcation, but for the purpose of defeating, in whole or in part, the plaintiff’s cause of action. Ibid. In an action for services performed by the plaintiff, as housekeeper, and also for goods sold and delivered, evidence of acts of malfeasance by the plaintiff, in em- bezzling the property of the defendant, is not admissible by way of set-off, but may - a under the plea of non assumpsit and payment with leave, &c. 458. & R. The pendency of a suit to recover the claim offered to be set off, is no objection to its being used for that purpose. 1 W. & S. 57. 8 W. 444. The set-off is in the nature of a cross-action, and it may be withdrawn from the consideration of the jury. 5 W. & S. 506. _A defendant cannot avail himself by way of set-off of a debt against the plaintiff, for which a suit is pending on an appeal from arbitrators, by the party offering such set-off. 5 W. 116. The defendant having a demand against the plaintiff, is not compelled by the defalcation act to set it off. He may do so, or he may bring an action against the plaintiff for it, as he pleases. 7 W. 500. Mutual demands do not necessarily extinguish each other by operation of law— set-off is permissive, not compulsory; and if there be no agreement between the parties, either may hold and set off his claim; or, if he choose, assign it, and leave the other party to his legal remedy. 8 W. 39, 260, 406. Parties having mutual demands against each other, may, by their agreement, extinguish them by a set-off; but the statute of defaleation does not, by any opera- tion, per se, apply the demand of one party, in such case, against that of the other, so as to produce either a payment, satisfaction or extinguishment of them. 9 W. 179. : IV. Ser-ofF BEFORE A JUSTICE. ’ The 7th section of the act 20 March 1810, which compels a defendant in a suit before a justice to set off his demand against the plaintiff, is applicable to cases of unliquidated damages for breach of contract. 3 H. 361. Tn an action before a justice of the peace to recover the price of yoods sold and delivered, defendant may give in evidence, as a set-off, a special contract between him and plaintiff, by which plaintiff promised to do certain work for defendant, and did not, whereby defendant is entitled to recover damages for the nonfeasance. 4 W.&S. 290. When a defendant claims a right to off-set a demand which he had against the plaintiff for a sum exceeding $100, the justice is right in rejecting the evidence of such off-set, on the ground that it exceeds, in amount, his jurisdiction ; but if the demand of the defendant be composed of several items, he may set off such of them as do not exceed the jurisdiction of the justice. 3 P. R. 469. Where a justice of peace issues his process, which is served, according to law, on a defendant, the latter cannot turn round and sue the plaintiff before another justice, for any debt or demand arising from contract not exceeding $100 ; but must submit the claim by way of set-off to the justice before whom the plaintiff has brought his suit. 1 Ash. 171. 2 Ash. 146. 5 W. & S. 460. If, however, both suits be carried on at the same time, without objection, both proceedings are valid. .3 C. 71. 18 eS [ 274 J Distress for Rent. I. Proceedings on a distress for rent. IV. Proviso in a lease, waiving the benefit II. Form of warrant to distrain. of the exemption law. III. Summons to landlord to defaleate. I. PROCEEDINGS ON A DISTRESS FOR RENT. Tux law of distress is a subject of great use and importance, and deserves par- ticular notice. A distress is “the taking a personal chattel out of the hand of the wrongdoer, into the possession of the party injured, to procure a satisfaction for the wrong committed.’ 3 Bl. Com. 6. And the most usual injury for which a distress may be taken is that of non-payment of rent. At common law, distresses were incident to every rent service ; and a ground- rent reserved upon a conveyance in fee being, in Pennsylvania, a rent service, the right of distress is incident to it of common right. 9 W. 262. The act of 1772 permits a distress and sale of goods ‘for any rent reserved and due upon any demise, lease or contract whatsoever.” Purd. 610. A distress is inseparably due to every service, that may be reduced to a cer- tainty. 2 R.13. But although the owner of real estate may, in an action for use and occupation, recover a reasonable compensation, yet he cannot distrain unless the rent be certain and fixed, by agreement of the parties. 3 P. R. 30. Thus, a landlord cannot distrain where the agreement is, that the tenant shall pay no rent, provided he make certain repairs, and the value of the repairs be uncertain. A. 347. But if it may be reduced to a certainty, the right of distress is incident to the demise. Thus, the right of distress is incident to a lease reserving a share of the produce by way of rent. 2 R.11. 5 W.& 8.163. And rent payable in iron may be distrained for. 8 W. & S. 531. And see 5 B. 229. 2 8. & R. 480. 1 Barr 126. 2 Ibid. 293. The general rule is, that all personal chattels are liable to be distrained ; yet to this rule there are certain exceptions. Thus, things wherein no one can have an absolute or valuable property, as dogs, cats and animals fere nature, cannot be distrained ; but when the reason of the rule ceases, it no longer applies, for deer kept in a private enclosure for sale as profit, may be distrained for rent. 3 Bl. Com. 7. ; Whatever is in the personal use or occupation of a man, is, for the time, privi- leged and protected from a distress, as an axe or spade, with which one is laboring, or a horse while a man is riding him. But horses drawing a cart, may (cart and all) be distrained for rent-arrear. Ibid. 8. Valuable things'in the way of trade are not liable to distress; as a horse stand- ing in a smith-shop to be shod, or in a common inn; or cloth at a tailor’s; or corn sent toa mill or market; Ibid.; or goods placed with a commission merchant on storage; 17S. & R. 138; 7 W. & 8. 452; or goods stored with a warehouseman in the way of trade; 6 C. 287; or cattle received by a tenant to be pastured for hire ; 8 H. 422; or goods on the premises of an auctioneer, for the purpose of sale by auction ; 20 Eng. L. & Eq. 370; or the goods of a boarder at a boarding-house. 5 Wh. 9. For all these things are protected and privileged for the benefit of trade, and are supposed, in common presumption, not to belong to the owner of the house, but to his customer. 3 Bl. Com. 8. But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distrainable by him for rent: for otherwise, a door would be open to infinite frauds upon the landlord ; and the stranger has his remedy over by action against the tenant, if, by the tenant’s default, the chattels are distrained, so that he cannot render them when called upon. 13 S. & R. 57. Ibid. 180. 1 R. 440. A wife’s goods, found on the demised premises, are not exempted by the act of 1848, from a distress for rent by the husband’s landlord. 2 Wr. 344. Nothing can be distrained for rent that may not be rendered again, in as good a plight as when it was distrained; for which reason, milk, fruit and the like cannot be distrained. 3 Bl. Com. 9. ~ DISTRESS FOR RENT. 275 Things annexed to the freehold cannot be distrained, as doors, windows, mill- stones, and the like; for they savor of the realty. And so far is this principle carried, that if a 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 millstone Severed from the mill, for the purpose of being picked. 17S. & BR. 418. 2 W. & 8. 116. For this reason also, growing corn could not be distrained at common law; but the act of 21st March 1772 authorizes a lessor to take and seize as a distress for rent, any cattle or stock of his tenant, feeding or depasturing upon any part of the demised premises; and also all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which shall be growing upon any part of the demised premises ; and that the purchaser thereof shall have free egress and regress to and from the same, when ripe, to cut, gather and carry away the same. Purd. 611. If, however, the growing grain be sold by the tenant, it is not liable to distress. 4 W.&S. 346. It is also a rule that goods in the custody of the law cannot be distrained. Thus, goods which have been previously levied upon on an execution, or foreign attachment, cannot be distrained for rent. 4 W. & S. 3844. Nor can goods seized by a sheriff, under a writ of replevin, but left by him, for a reasonable time, upon the demised premises. 1 Phila. R. 173. But goods replevied may be distrained for subsequent arrears of rent. 2 D. 68, 131. 4 W. 42. The act of 9th April 1849 likewise exempts from distress for rent, property to the value of three hundred dollars, exclusive of all wearing apparel of the defend- ant and his family, and all bibles and school books in use in the family, which had been exempted by previous statutes. Purd. 612. Rent payable in advance may be distrained for. 2 Wh. 95. 3 Barr 219. 9 W. 438. 138. & R.60. But a distress cannot be made on the same day the rent becomes due. 6 W. 41. A distress for rent must be made in the day time. 3 BI. Com. 11. 2 Eng. L. & Eq. 278. And upon the demised premises; for the statute of 52 Hen. IIIL., ch. 15, prohibits any man, for any cause, from taking a distress out of his fee, or upon the king’s highway, or in the common street. Rob. Dig. 171. But if the tenant shall fraudulently or clandestinely carry off from the demised premises his goods and chattels, with intent to prevent his landlord from distrain- ing the same for arrears of rent, the act of 21st March 1772 makes it lawful for the landlord, within thirty days thereafter, to take and seize such goods and chat- tels, as a distress for rent, wherever the same may be found; and to sell and dis- pose of the same in the same manner as if distrained upon the demised premises. Purd. 611. Upon this act, it is to be observed, that a mere removal in the day time, without the knowledge of the landlord, is not fraudulent. 12 8. & R. 217. 1 Ash. 121. That it is only the goods of the tenant that can be so followed and distrained; not those of a stranger. 1 D.440. But that those of the tenant’s assignee may be followed and seized, if clandestinely removed. 3 W. & S. 531. The act also pro- tects the tenant’s goods, although fraudulently removed, after a bond side sale to an innocent purchaser. Purd. 611. It is a trespass to enter the house of a stranger, to search for and distrain goods fraudulently removed, if no goods of the tenant be there found. 13 8. & R. 417. If the goods of the tenant be once fairly and openly removed, or if clandestinely removed and thirty days elapse, or if fairly sold to an innocent purchaser, although such purchaser be the succeeding tenant, and the goods yet remain upon the land, they cannot be distrained by the landlord for rent. 3 W. 246. If the tenant’s goods be fraudulently removed, they are prima facie liable to be distrained; and it -is for the claimant to show affirmatively that he is a bond fide purchaser without notice of the fraud. 14 Eng. L. & Eq. 488. "In the city of Philadélphia, the like remedy is given to a landlord of following and distraining upon goods fraudulently removed by his tenant, before the rent becomes due, by the act of 25th March 1825. But in such case the rent is to be apportioned up to the time of such removal; and the landlord is required first to make oath, before a judge, alderman or justice, that he verily believes the said goods were carried away for the purpose of defrauding him of his remedy by dis- 276 DISTRESS FOR RENT. tress. Purd. 611. Under this act, an affidavit by the landlord “that he has just cause to suspect and doth believe,” that such was the tenant’s intent is not suffi- cient. 1 Ash. 121. : The distress may be made by the landlord himself, or he may empower any in- dividual to make it as his bailiff. A parol authority is sufficient. 4 W.119. 3 W. & 8. 531. But if the warrant be in writing, the law requires no set form of words. 3 W. & 8. 531. It is sufficient if the landlord and tenant be named, and power given to distrain for the rent. 4 W. 98. Tenants in common who make a joint Tease to a tenant for years, may join in making a distress for rent. 3 W. & S. 531. A distress cannot legally be made on Sunday. 1 Br. 171. Or by breaking open an outer door; 1 Br. 241; even of a stable; 2 Eng, L. & Eq. 275. But in order to distrain he may open the outer door in the ordinary way. 8 Eng. L. & Eq. 503. Taking a note, or obtaining a judgment for the rent, does not impair the right to distrain. 3 P. R. 487. By the act of 1772, the landlord is empowered to distrain, after the termination of the lease, provided it be made during the continuance of his title. Purd. 612. This right is without limitation as to time; the statute gives it to him, whenever the rent is in arrear, and he retains the title. 110.162. But the tenant’s posses- sion must also continue. 1 W. & 8.416. For the goods of an outgoing tenant, which have been bond fide sold to the succeeding tenant, are not liable to distress at the suit of the landlord, for the arrears of rent of the former, though the goods remain on the demised premises. 3 W. 2-16. 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 the distress made for the whole turn out to be insufficient, either from the circumstance of not finding a sufficient distress on the premises, or mistaking the value of the property seized, a second distress may be made to supply the deficiency. 3 Bl. Com. 11- A distress must be made for the precise sum due; and the landlord cannot add interest to the arrears of rent. 2 B. 153. Trespass will not lie for distraining for more rent than is due. 6 W. 41. But a landlord is liable, in an action on the case, for distraining for more rent than is due, without proof of malice, or want of probable cause. 5 H. 163. The act of 1772 gives a tenant a right to recover double the value of the goods distrained, if a distress be made when there is no rent in arrear. Purd. 611. And it has been held, that in an action against a constable for making a distress, as bailiff, he can only justify by showing that there was rent in arrear; the land- lord’s warrant is no protection. 3 P. R. 30. 5 H. 153. The act does not pre- clude the tenant from bringing his action of trespass, at common law, in which he may recover damages to a greater amount than double the value of the goods dis- trained. 6 8. & R. 286. The distress, as already stated, must be made in the day time. 2 Eng. L. & Eq. 278. And if the landlord come into a house and seize upon some goods as a distress in the name of all the goods in the house, that will be a good seizure of all. 6 Mod. 215. The distress having been made, the act of 1772 requires that notice of the taking, with the cause of the distress be left, at the time of making it, at the man- sion-house, or other most notorious part of the premises charged with the rent. Purd. 610. This notice must be in writing, and should embrace a schedule of the several articles levied on, as well as the amount of rent in arrear. 3 Eng. L. & Eq. 574, 578. The omission to give this notice does not render the distress itself unlawful ; it is only necessary to warrant a sale of the goods distrained. 6 W. 40. It may be given to the tenant in possession, or to the owner of the goods distrained. 8 W. & 8. 303. But the tenant, if not the owner of the goods, has no authority to waive an appraisement and notice of sale. 6 OC. 287. This doctrine, however, only applies to a case in which the goods are not distrainable for the rent in arrear. 18 Leg. Int. 172. It is the duty of the tenant, immediately after a distress has been made upon his goods, to give notice of his intention to claim the benefit of the exemption law. For the exemption of certain goods from distress for rent is a privilege that may be waived by the tenant, either by the terms of his contract, or by an omission to claim the exemption at a proper time. 6 W. 86. 11 H. 93. 12 C. 380. 2 Gr. 197. It is too late after the property is put up for sale. 7 H. 255. 10.182. The object of the legislature was, to prevent a sale of the property; and every act or omission DISTRESS FOR RENT. 217 of the debtor that amounts to an acquiescence in, or an affirmance of the sale, is in direct contravention of that object. 9 H. 247. ; A sub-tenant, or assignee of the tenant, who has not been recognised as such by the landlord, cannot claim the benefit of the exemption law as against a distress for rent; the goods ‘being levied on as those of the original lessee, by whom no claim for the exemption is made. 10 C. 369. If the tenant claim the benefit of the exemption law, it becomes the duty of the constable, or officer charged with the execution of the warrant, to summon three disinterested and competent persons, who are to be sworn or affirmed to appraise the. articles which the debtor may elect to retain under the exemption law; and the property thus chosen and appraised is thereby exempted from levy and sale. Purd. 433. The sheriff or constable may administer the oath or affirmation to the appraisers. Ibid. 434. The act of 1772 allows to the tenant five days, after distress made, in which to replevy the goods. Purd.610. And during this period, the landlord may impound the goods upon the premises. 2 D. 68. In computing this time, the day of making . the distress is to be excluded; and if the last day fall on Sunday, the landlord has until the next day to remove the goods. 6 W. 37. At the expiration of this period, the person distraining is required to call on the sheriff or constable, (if not already done,) who are required by the act of 1772 to be aiding and assisting therein, and to cause the goods to be appraised by two reputable freeholders; who are to be first duly sworn or affirmed by the sheriff or constable. Purd. 610. A constable may be compelled to assist in the collection of rents by distress; and whenever he so acts he acts officially, and he and his sureties are liable for moneys ‘collected or neglected to be collected by him under a land- lord’s warrant. 4 P. L. J.180. He is not bound, however, to make the distress, and thereby assume the responsibilities of the distrainor ; the law only requires his interference, after the distress made, should an appraisement and sale become neees- sary. 5 H. 169. The distress having been duly appraised, the act of 1772 requires the sheriff or constable, after six days’ public notice, to sell the goods and chattels so distrained for the best price that can be gotten for the same, for and towards the satisfaction of the rent, and the costs of the distress; leaving the overplus, if any, in the hands of the sheriff or constable, for the owner’s use. Purd. 610. An omission to appraise, and advertise renders the landlord a trespasser ab initio. 14S. & R. 399. 6 Wh. 460. This is absolutely essential to a valid sale, and can only be dispensed with by the owner of the goods, or by some one having equivalent authority. 6 C. 291. The act of 1772, moreover, gives to the landlord a special action on the case, with treble damages, for any pound breach or rescous of goods distrained for rent ; either against the actual offender or against the owner of the goods, in case the same be afterwards found in his possession. Purd. 610. And in case of pound breach, the distrainor may also follow the goods and retake them. 2 D. 70. As the tenant may have a set-off against the landlord’s claim for rent, the act of 20th March 1810, § 20, gives to justices of the peace jurisdiction in all vases of rent, not exceeding one hundred dollars, so far as to compel the landlord to defalcate, or set off, the just account of the tenant out of the same; but the landlord may waive further proceedings before the justice, and pursue the method of distress in the usual manner, for the balance so settled. And if any landlord shall be convicted, after such waiver, of distraining for and selling more than to the amount of ‘such balance, and of detaining the surplus in his hands, he shall forfeit to the tenant four times the amount of ‘the sum detained. The act also pro- vides that no appeal shall lie in the case of rent, but the remedy by replevin shall remain as heretofore. Purd. 612. Under this act, it seems, that the justice cannot proceed to judgment and exe- cution. 4 Y. 237. But his decision is prima facie evidence, on the issue of no rent in arrear, in favor of a stranger whose goods were levied on. 1 R. 435. No appeal lies by the tenant from the justice’s decision. 1 Br. 69. But the court of common pleas of Philadelphia county have held, that the landlord is not deprived of the right of appeal by the proviso in the act. 278 DISTRESS FOR RENT. IL. ForM OF WARRANT TO DISTRAIN. To G. H. Wuerzas, C. D. is now indebted to me in the sum of ten dollars twenty-five cents for rent due on the first day of June, a. p. 1860, these are to authorize and empower you to distrain the goods and chattels of the said C. D., which you shall find on the ‘premises now or lately océupied by him, said premises being a house situate No. 8, Strawberry street, in the city of Philadelphia, and the same retain in your possession until they can be lawfully appraised, and after due notice, “sell the said goods and chattels so distrained for the best price that can be gotten for the same, for and towards satisfaction for the rent for which the said goods and chattels are distrained, and of the charges of such dis- tress, appraisement and sale,” returning the overplus, if any, to the said tenant. And for your so doing, this shall be your sufficient warrant. « 1rnEss my hand and seal, this tenth day of June, a. p. 1860. A.B. [szat.] III. SumMoNs TO LANDLORD TO DEFALCATE. COUNTY OF BERKS, ss. » The Commonwealth of Pennsylvania, To the Constable of C—— township, in the County of Berks, or to the next constable of the said county most convenient to A. B., greeting: We commanp you that you summon A. B., of the township of C , in the said county, to appear before J. R., Esquire, one of our justices of the peace in and for the said county, on the [fifteenth] day of (res in the year of our Lord one thousand eight hundred and [sixty], at [eleven] o’clock in the [forenoon] of that day, to show cause, if any he has, why the just account of H. 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 defalcated or set off out of the said rent. Witness the said J. R., Esquire, as C—— township aforesaid, the [tenth] day of [August], one thousand eight hundred and sixty. J. R., Justice of the Peace. [szat.] IV. Proviso IN A LEASE WAIVING THE BENEFIT OF THE EXEMPTION LAW. And the said C. D., for himself, his executors and administrators, doth hereby covenant and agree, that all personal property on the said premises shall be liable to distress, and also all personal property, if removed therefrom, shall, for thirty days after such removal, be liable to distress, and may be distrained and sold for rent in arrear; the said C. D. for himself, his executors and administrators, hereby waiving all right to the benefit of any laws made or hereafter to be made, exaupting personal property from levy and sale for arrears of rent. [ 279 ] District Attorneys. Act 81 Marca 1860. Purd. 334. Scr. 17. If any district attorney shall wilfully-and corruptly demand, take or receive any other fee or reward than such as is prescribed by law, for any official duties required by law to be executed by him in any criminal proceeding; or if such district attorney shall be guilty of wilful and gross negligence in the execu- tion of the duties of his office, he shall be guilty of a misdemeanor in office, and on conviction thereof, be sentenced to pay a fine not exceeding one thousand dol- lars, and to undergo an imprisonment not exceeding one’ year, and his said office shall be declared vacant. Upon complaint in writing, verified by the oath or affirmation of the party aggrieved, made to the court in which any district attorney shall prosecute the pleas of the commonwealth, charging such district attorney with wilful and gross negligence in the execution of the duties of his office, the said court shall cause notice of such complaint to be given to the said district attorney, and of the time fixed by the said court for the hearing of the same. If, upon such hearing, the court shall be of opinion that there is probable cause for the said complaint, they shall bind over or commit the said district attorney to answer the same in due course of law. If the court shall be of opinion that there is no pro- bable cause for such complaint, they shall dismiss the same with reasonable costs, to be assessed by the court. Sect. 18. If any district attorney shall be charged according to law, with any crime or misdemeanor, before, or bound over or committed by any court, to answer for wilful and gross negligence in the execution of the duties of his office, it shall be the duty of the court to appoint some competent attorney thereof, to prepare an indictment against such district attorney, and to prosecute the same on behalf ‘of the commonwealth, until final judgment, to whom a reasonable compensation, to be fixed by the court, shall be paid for his services, out of the county treasury. If such district attorney shall be convicted of any crime, for which he may be sentenced to imprisonment, by separate or solitary confinement at labor, in addition thereto, his said office shall be declared vacant by the court passing such sentence. Act 31 Marca 1860. Purd. 334. Sxcr. 29. No district attorney shall, in any criminal case whatsoever, enter a nolle prosequi, either before or after bill found, without the assent of the proper court in writing first had and obtained. . The act of 29th March 1819, § 4, provided that, after indictment found by the grand jury, it should not be lawful for the attorney-general to enter a nolle prosequt therein, except in the cases of assault and battery, fornication and bastardy on agreement between the parties, or in prosecutions for keeping tippling houses with the consent of the court. 7 Sm. 227. The act of 831 March 1860, still further restricts the powers of the district attorney, but it does not appear to confer on him the right to enter a nolle prosequi, even with the consent of the court, in cases in which it was previously forbidden. 6 H. 497. 10 H. 21. , [ 280 J Che Docket. I. The manner in which the justice should II. Judicial authorities in relation to docket make his entries and keep his civil docket. entries. I. Norarne is of more importance, nothing more entirely essential, to the prompt and correct discharge of the duties of a magistrate, then a regular, well kept docket. The justice should recollect, that when he begins a docket entry he cannot tell how important may be the principles involved, or the consequences which may result from the cause, whether civil or criminal, which he is about to make a matter of record. There is no cause which he enters upon his docket, however trivial, which may not be carried before a court, and his conduct undergo a public, judicial, revision, either by certiorari or appeal. These considerations will, undoubtedly, induce a desire, that all his entries and his return, shall be of such a character, that they will bear the severest scrutiny, the closest examination, Make your docket entries, on the instant that you transact the business which you record, and be especially attentive, on all occasions, to enter the date of the transaction. Do no act; issue no process; let nothing be done, in relation to a suit, without instantly making it, and the time it is done, a matter of record. Thus will you, at all times, with entire confidence, be able to refer to your docket as a faithful record of all that has been done in the suit of which it purports to be an authentic register. : Be accurate in every entry; so accurate as to be at all times ready to be legally qualified as to the truth of every part of it. When you note that A. was affirmed, or B. was sworn, do not fail to note whether they were witnesses called by the plaintiff, or the defendant: thus John Scott, sw. p., Job Ox, aff.d. This detail to a magistrate, who has not had experience, may seem of little, or no, value; but nothing can be unimportant which goes to stamp the character of fidelity and minute accuracy upon the magistrate’s docket. Let it exhibit a full and faithful record of all that has been done, from the issuing of the first process to the termi- nation of the suit. When called upon to issue a subpoena, note its issue and the date, and whether for plaintiff or defendant, and the number of witnesses whose attendance is re- quired. The value of such minute- details will be more and more estimated the longer the magistrate continues in the commission, because his opportunities of appreciating their value will increase in proportion to the amount of business he may be called upon to transact. ; The entries on the civil docket should exhibit the following particulars :— 1. The names of the parties, and the right or capacity, in which they sue, or are sued ;, whether as individuals, executors, administrators, assignees, partners, sur- viving partners, &c., &c. 2. The time at which the process issues, and is made returnable. 8. The cause for which the process issues; whether for debt, damages, trover, penalty, &e., &c. 4. The name of the constable by whom the process was served, and his return, always in his own words. , 5. Any and every adjournment, and each and every meeting, and whether one or both the parties attend. 6. Any and every subpoona issued; the party by whom taken out; the number of witnesses required; and the person to whom it was delivered for service and the return. : 7. The name of every witness examined, whether sworn or affirmed, and by which of the parties called. : 8. The judgment when rendered should always be written in words. 9. The bail when taken; taking care to note whether it be for stay of execution or appeal, and to vary the form accordingly. 10. When the execution issues; to whom it is delivered and the return, which should always be entered in the very words of the returning officer ‘ DOCKET. 281 In a word, every fact should appear on the record. It may be well so to apportion even your docket entries, as to have the same information always on record in the same place, so that, by casting your eye on a particular part of your docket-entry, you will always find the same kind of infor- mation. To illustrate what is here rather obscurely hinted, we furnish a simple docket entry. vs. + Served, on oath, by producing to the deft. the original sums. and informing him ©. D.) of the contents thereof. Parties appear. Debt; goods sold and delivered; de- mand $10.44. A.B. sworn to his original entries. Judgment for the plaintiff for ten dollars and #4;. July 5th, I become absolute bail for stay of execution in $25. (Signed) E. F., No. 2, Dock street. A. | er 30th 1860, summons issued. J. W., c.' Returnable July 5th, 10 a. m. Those who will take the trouble to analyze this entry, will find it in the following order. The name of the plaintiff and defendant, being entered on the margin, the justice enters the day on which he issues the summons; then follows the name of the constable to whom it was delivered for service; then the day and hour at which the parties are to meet; then a notice thatthe constable has sworn to the service of the summons; next the appearance of the parties; then the nature and amount of the claim, and the proof, the plaintiff being sworn to his original entries; then the judgment, and the bail for stay of execution. Thus it will be seen that every event is noted in the regular order in which it pre- sented itself. It is recorded in the natural order of things, and any inquiry made can be answered promptly by the eye of the justice, being, from habit, directed to that part of the entry which contains the record of the matter inquired after. One of the most frequent inquiries made is, what constable served the process? The eye of the magistrate, at once, directs itself to the middle of the first line of the docket entry, and there he finds the initial letters of the constable’s name, and is ready, in a moment, to give the information required. The index to the docket should be . carefully kept and frequently posted up. : Experienced magistrates may consider this notice as of no value whatever, inas- much as they have long, and with advantage to the public and themselves, practised what is here suggested. These gentlemen, however, should consider that if all of law and practice, with which they are familiar, were to be excluded from this publi- cation, it would reduce its bulk, in all probability, to a very few pages indeed. It is for the inexperienced, for those but recently commissioned, that much of this work is written and is expected to be useful. One of the early English writers characterizes the importance attached to a transcript from the justice’s docket, in such full and clear, honest and impressive language, that it is here inserted as deserving not only to be read “but to be studied. “A record or memorial, made by a justice of the peace, of things done before him, judicially and in the execution of his office, shall be of such credit that it shall not be gainsaid. One man may affirm a thing, and another man may deny it, but if a record once say the word, no man shall be received to aver or speak against it; for if men should be permitted to deny the same, there would never be any end of controversies; and, therefore, to avoid all contention, while one saith one thing and another saith another thing, the law reposeth itself, wholly and solely, in the report of the judge. And hereof it cometh that he [the judge or justice] cannot make a substitute or deputy in his office, seeing that he may'not put over (to another) the confidence that is put in him. Great cause, therefore, have the justices to take heed that they abuse not this credit, either to the oppression of the subject, by making an untrue record, or the degrading of the king [or commonwealth] by suppressing the record that is true and lawful.” Lamb. 63,.66. . The above extract is admirably calculated to impress aldermen and justices of the peace not only with the solemn obligations they are under to keep their dockets correctly, but to impress them anew with the very great importance of the office they hold. “Justices of the peace,” says Lord Coke, 4 Inst. 170, “is such a form of subordinate government, for the tranquillity and quiet of the realm, as no part 282 DOCKET ENTRIES AND FEES. of the Christian world hath the like, if the same be duly executed.” Let then every man who is honored by the commission, make it his study, as it is his duty, duly to execute the Quties of this high and honorable office. Occasion is taken to remark that Lord Coke, high authority it will be granted, everywhere speaks of justices of the peace as judges of record. In 4 Inst. 177, Lord Coke, giving a reason for certain authority having been vested in them, says: “ Because justices of the peace are judges of record, and ought to proceed upon record, and not upon surmises.” II. The docket of a justice of the peace is the best evidence to show the cause of action before him; and parol proof is inadmissible to contradict or vary it. 2 W. & S. 877. : The docket of a justice of the peace is not a record. 6 W.& 8. 50. And, there- fore, it cannot be proved by a certified transcript. 7 W. 189, 192. But the law considers them as almost equal to records. They fall within the rule of public books, which may be proved by sworn copies. 148. & R.440. 4W.&S8. 192. 10 Barr 161. 2 H. 413. 8 C. 539. 1 Phila. R. 25. A sworn copy of the entries of a justice of the peace is admissible in evidence, with the same effect as the docket itself. Ibid. In,certain cases, however, where an inspection of the original docket is necessary to the due administration of justice, the justice may be compelled to produce it in court, by a subpoena with a clause of duces tecum ; for instance, where there is any question as to the genuineness of the alleged docket entry ; where a subsequent fraudulent alteration of the original entry is alleged, &c. As justices of peace have not jurisdiction in ad/ cases of contract, it ought to appear, from their docket entry, what is the nature of the contract upon which the action is founded. If it do not appear from the record that the justice had jurisdiction, the judgment, on certiorar?, will be reversed. 1 Br. 339. A justice of peace is not bound to set out the evidence at large on his docket, but he must state the demand of the plaintiff, and the kind of evidence produced to support it, and, in case of an appeal, he must return the whole proceedings. 2 B. 31. 1 Br. 207. If by the transcript of a magistrate’s judgment filed in the court of common pleas, it appears that execution was issued and returned, “No goods and defendant not found,”’ it is sufficient to warrant a jiert facias [a writ to levy] without filing a certificate. 6 W. & 8. 343. , Docket Entries and fees. Tux following docket entries, civil and criminal, and the marginal fee-bills, noting the fee allowed by the act 18 April 1857, for every service performed by the justice and the constable, have been diligently and repeatedly revised by the writer of this note, and every entry and item of costs has been carefully verified. They are, there- fore, with confidence, recommended to the magistracy of the state, as being, in all particulars, in accordance. with the laws. The anxiety for accuracy in the entries and the items of cost has been the greater from the difficulties heretofore expe- rienced, and from not having been able to find entries and bills of costs upon which any reasonable reliance could be placed as to their accuracy. Care has been taken not only to select docket entries, embracing a great variety of subjects, but also to introduce into the proceedings those incidents which most frequently present themselves in the discharge of this department of the duties of .& justice of the peace. a. DOCKET ENTRIES AND FEES. 283 ; ABBREVIATIONS USED IN THE DOCKET ENTRIES, &o. Piff. Plaintiff; Deft. Defendant; W. witness; sw. sworn; aff. affirmed ; subp. sub- pena; c. constable; atty. attorney; agt. agent; int. interest; Ha. issd. execution issued; Ex. ret. execution returnable; m. miles; adjd. adjourned. REFERENCES TO THE DOCKET-ENTRIES. I. to III. Goods sold and delivered. . A case in trover and conversion. V. Of trespass for damages, &c. . Penalty for taking illegal fees. VII. VIII. IX. For work and labor done. X. Landlord and tenant’s case. XI. Goods sold and delivered. XII. On a promissory note. XIII. Goods sold and delivered. XIV. Claim of a penalty for issuing a small note. ; XV. Tenant against landlord. JEREMIAH FINNY vs. I, Cryin svurr. Walker, constable. XVI. XVII. XVITI. XIX. XX, XXI. XXII. XXII. XXIV. XXvV. For work and labor, and services. A case before referees. Horse and gig hire. On an assignment. A case of nonsuit. Against bail. On a promissory note. Money paid and laid out. For rent. Proceedings on w rule to show cause, &c. Summons issued 7th October 1860. J. Returnable 12th, at 9 o’clock, a. m.; Horatio Birney. cosTs. Tustice. Entering action - « © 1 Summons fe one ew 0) Return and oath of constable 15 Judgment confessed «. « 10 Plea of freehold (5) charged asasearch . . «. «+ 10 Execution. e380 og AS Return of execution » « 10 Satisfaction oe « & Constable. Servingsummons . . «- 10 Mileage, 2 m. circular 6 Serving execution . . «~ 25 Mileage, 2m. ciroular . » 6 ‘served, on oath, by producing. the original summons to de- fendant, and informing him of the contents thereof, October the 8th.” And, now, October 12th, parties appear; plaintiff claims $20 for goods sold and delivered to defendant. Demand $20. Defendant admits plaintiff’s claim; and judgment, by confession, for twenty dollars, and costs. Same day, defendant pleads freehold for stay of execution.(a) 13th January 1860, execution issued; returnable February 3d Returned January 24th, with plaintiff’s receipt for the debt. Costs paid into office. When the return of the constable is debt and costs paid into office, the justice should enter on his docket “money paid into office. Received satisfaction.’ The money being paid over to .the plaintiff, his agent or attorney, and the person so receiving having signed the receipt on the docket, the proceedings in that suit are concluded. (2) It has elsewhere been stated, what it is deemed advisable here to repeat, that where the judgment is for a sum not exceeding $5.38, there is no stay of execution. Where the judgment is for a sum greater than $5.33, yet not exceeding $20, the defendant shall have a stay of execution for three months ; where the judgment shall be above $20, and not exceeding $60, there shall be a stay of six months; and where the judg- ment shall be above $60, and not exceed- ing $100, there shall be a stay of exe- cution for nine months: Provided, that the defendant shall put in absolute bail, or a plea ‘of freehold, which shall be accepted, and entered on the docket of the justice. The stay of execution is counted from the day on which the judgment is entered. (4) In the fee-bill we have been unable, after diligent search, to find any fee whatever, appropriated for several duties which are imposed upon the justice. Entering a plea of freehold for stay of execution is one of those duties. As it cannot be performed without a search, it is thought most correct to allow the fee for a search, for the service thus rendered. For other services for which no express fee is allowed, the same principle is carried out. In what are called the revised laws, there are many duties imposed upon the magistrates, constables and other officers, for which no fee whatever is allowed. 284 JosEPH BaRBARA vs. Bensamin Bynany. costs. Justice. Entering action 10 Summons . . 10 Ret.andoath . . 15 Trial and judgment » 25 Bail . . «6 - 10 Execution . oe oe 6 Return o 8 © ew oe Constable. Serving sums. . . » 10 Mileage, 2 m. ciroular - 6 Serving execution » 25 Mileage, 2 m. circular » 6 $1.42 WELLIc OVENSHINE Vs. Wiiiam ANcHoRSMITH. costs. Tustice. Entering action Summons . . . Return, and c. oath . une one ase . rial and judgment . Hacoeulatece er es ete Receiving and paying ever Satisfaction . . . Constable. Serving summons . Mileage, 2 m. circular Wiiiam Drinxuovuse vs. Mary CoLpwatTeER. costs. Justice. Entering action 10 Summons . . . . .« 10 Return and constable’s oath . 15 Continuance aoe jester jes LO. Subpena, two witnesses . oo AD Subpena,threew. . . . 14 Fouroaths. . . + . 12 Trial and judgment . Appeal, &o. » 2 6 « 40 Oath &c., of bail a ee 4 Constables is jerving summons, 0) 10 Mileage, 2 m. cireuler ey » 6 Serving two subps. personally 20 Mileage, 6 m. ofroular ae ee A: Two witnesses for plaintiff . 60 Mileage, 4 m. circular » 12 $2.67 DOCKET ENTRIES AND FEES. II. Crviz scrr. Summons issued 2d October 1860. J. Walker, constable. Returnable the 7th at 5 o’clock, P. M. “Served, on oath, by producing the original summons to de- fendant, and informing him of the contents thereof, October 3.” October 7th, parties appear; plaintiff claims $20 for goods sold and delivered. Defendant admits that he owes plaintiff $10; but denies the balance. Plaintiff produces his book of original entries, and being sworn to make true answers to such questions as shall be asked him touching said book and entries, he proves that the several entries, charging the goods to the defendant, are in his own handwriting, and that they were made in the book on the day the goods were sold and delivered, and that no alterations have been made in them since: whereupon judgment, publicly, for the plaintiff, for twenty dollars, and costs. Defendant enters bail for stay of execution. I am held in $45 as absolute bail for stay of exe- cution. Signed, J. Ray, No. 500, So. 6th St. Execution issued 8th January; returnable January 28th 1861. Returned by the constable, indorsed “No goods.” III. Crvin surr. August 8th 1860, summons issued. G. Wallace, c. Returnable August 13th, 11 a.m. Served, by copy, at the dwelling of defendant, &c., on oath. Parties ap- ear. Debt, balance of an account for goods sold and delivered. emand, $19.44. T. H. (sw.) plff. efendant claims to set off a pair of shoes sold to plaintiff, charged in his book at $1.75. PIff. produces deft.’s receipt for the above shoes for $1.75. Judgment for the plaintiff for nineteen dollars and forty-four cents. August 30th, I become absolute bail in this case, in the sum of forty dollars, for stay of execution. Signed, A. Bett, No. 967, Arch St. Money paid into office, December 12th. Received satisfaction. Signed, W. OVENSHINE. IV. Trover AND ConvERSION. Summons issued 7th Octo- ber 1859. G. Wallace, constable. Returnable 12th October, 9 o’clock, a. u. Returned, on oath, “Served, October 8th, by leaving a copy at defendant’s dwelling-house, in the presence of one of her family.” Parties appear. Plaintiff claims $20 damages in trover and conversion, for a gun belonging to the plaintiff, which he loaned to defendant, and which defendant has not returned, although requested. Demand $20. Defend- ant asks a continuance, to which plaintiff does not object. Adjourned to the 14th inst.,9 a.m. Subpoena for two wit- 25) nesses given for plaintiff. Subpoena for three witnesses for defendant:—and now, October 14th, parties appear, E. F. (sw.) plaintiff, G. H. (sw:) plaintiff, J. R. (aff.) and G. M. (sw.) for defendant. Having heard the parties, their proofs and allega- tions; judgment, publicly, for the plaintiff for $15 and costs. Defendant appeals. I am held as absolute bail in this case in $35, conditioned for the payment of all costs accrued, or that may be legally recovered against the appellant. Signed, B. Cooxs, No. 34, So. 13th St. Bail justified on oath. Same day gave a transcript to de- fendant. + DOCKET ENTRIES AND FEES. 285 Hewyry Dunpas V. Trespass in pamacrs, Warrant issued 7th October vs. 1859. J. Walker, constable. Same day defendant brought Wiuiam Pirr. up. Plaintiff appears and claims $35 damages in trespass for —— injury done or committed by defendant, on the 2d inst., on his _ Costs. plff’s) real estate. Defendant says he is not guilty. HE. H. Hntstine cotion:« ae sw.) for plaintiff. On hearing the proofs and allegations of Caps, . . . . . 10| the parties, judgment, publicly, for the plaintiff for thirty-five Tee eailiuigmanb : : + 98| dollars, and costs. Defendant claims stay of execution. Ba ee eg Vek eke 1 Tam held in $75 in this case as absolute bail for stay of ; execution, 7th October 1859. Signed, Return of execution * Assignment of judgment, chargedasasearch, . . Al. ex. and return and satis- C. J. Fox, No. 340, So. 4th St. = os on faction. 30} 1860, 8th April, execution issued; returnable 28th April. Sean ‘capias . . . 95 |Xecution returned indorsed by the constable ‘“‘ No goods, and Mileage, 4m. cireular =. 12 the defendant removed from the city. J. Walker, constable. Mileage, 4m-cireular 2 | 12) April 28th.” The bail appears, May 10th, and pays the debt, Berving al. ex. and mileage . 37) interest and costs; and the plaintiff assigns to him the debt, $2.34| interest and costs. ‘For a valuable consideration, I assign this judgment, &c., to C. J. Fox, the bail in this case.” Signed, Henry Dunpas. October 20th, C. J. Fox desires that an execution may issue against the defendant. Execution issued and made returnable November 9th. Int. $1.09. Form OF THE EXECUTION IN THIS CASE. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, ‘To the Constable of the Second Ward, or to the next constable of the said city most convenient to the defendant, greeting: Wuereas Henry Dundas to the use of C. J. Fox, the bail of the defendant, on the 7th day of October-1859, obtained judgment before J. F., one of our aldermen for the said city, against William Pitt, for the sum of thirty-five dollars, damages in trespass, together with one dollar and seventy-two cents, the costs of suit, which judgment remains unsatisfied ; therefore we command you that you levy the said damages and costs on the goods and chattels of the said debtor, and indorse hereon the time at which you make your levy, and hereon, or on a schedule to be hereto aan a list of the same, and within twenty days from the date hereof expose the same to sale by public vendue, you having given due notice thereof, by three or more advertisements, put up at the most public places in your ward, and returning the overplus, if any, of the said sale, to the said defendant. [And, for want of sufficient distress, that you take the body of the said defendant into custody, and him convey to the debtor’s apartment of the said city, there to be kept by the sheriff or keeper thereof until the damages, interest and costs aforesaid, shall be fully - paid.](@) And of your proceedings herein, together with this execution, make return to our said alderman on or before the ninth day of November, in the year of our Lord one thousand eight hundred and sixty. Witness our said Alderman, at Philadelphia, who hath hereunto set his hand and seal the 20th day of October, a. p. 1860. Nov. 5. Money paid into office. J. F., Alderman. Received satisfaction. Signed, C. J. Fox. [szaL.] Indorsement on the back of the Execution. ; H. Dunpas, to the use, Cay 0. J.F. : ve. Wu Pir. a Bice - $35.00 Interest (c) . - 1.09 Coats . + 172 Al. ex. + 62 J. W., $38.43 Returnable Nov. 9th, page 178. (2) The constable is authorized by law to indorse his levy either on the back of the execution or on a piece of paper attached to it; but the time at which he makes his levy must be indorsed on the execution itself. (4) When the law does not permit the im- prisonment of the defendant, the words enclosed in brackets in the execution should be carefully expunged by the justice before he puts it into the hands of a constable. (c) The justice should calculate interest on the amount of the judgment from the day on which the judgment was given, until the day on which the money is paid, or on which he issues his execution. 236 F. A. Arcnrernacut vs. GasriEL JOHNSON, Sheriff of the county of Chester. cosTs. Tustice. Entering action Summons . . . . Return and oath of const. Continuance . . . . One pate a) eae « 3 eal, &e. PP Constable, Serving summons personally Mileage, 6 m. circular Justice JUMPUP vs. Curistian KincKILLEr. costs. Justice, Entering action . Summons . . . Return, and c. oath . Twosubpenas . . . . 20 Ruletorefer . . . . 5 Rule of reference - Notice to referees 15 Two subpenas . 20 Notice to parties - 2 2 Entering judgment on report . 10 Receiving and paying over . 25 Satisfaction a ust ep 18 Constable. Serving summons Mileage, 1 m. circular Serving subp. 2 w. copy . . Mileage,2m.cireular . Serving notices on the referees, personally . . . Mileage, 3m. circular . Sorving subp. 2 w. personally . Mileage, 2m.ciroular . ° , Serving notices to parties Mileage, 2 m. circular eSaS8eS aSwd [El DOCKET ENTRIES AND FEES. VI. For raxine 1nuecat ress. April 24th 1860, summons issued. D.‘Rittenhouse, constable. Returnable, April 30th, ll a.u. Served on the defendant, on oath, by producing to him the original summons, and informing him of the contents thereof. Parties appeared April 30th. Plaintiff claims $50 penalty from the defendant, for that, within six months next before the commenceing of this suit, he, the said defendant, as sheriff of the county of Chester, did, within the said county, to wit, at West Chester, charge, demand and take from the plff other and greater fees than are expressed and limited by the act of assembly in such cases made and provided, for service done and rendered by defendant as sheriff aforesaid, in relation to a suit in the court of common pleas for said __—| county, in which the said F. A. Aechternacht was plaintiff, and Paul Murray was defendant, by which taking of unlawful fees the plaintiff was injured. The plff. further claims another penalty of $50 ; for that the deft. within six months aforesaid, as sheriff aforesaid, within the county aforesaid, to wit, at West Chester, did charge, de- mand and take, from the plff., other and greater fees than are expressed and limited by the act of assembly of this com- monwealth in such cases made and provided, for services done and rendered by defendant, as sheriff aforesaid, in and about a suit, in the said court of common pleas, in which the said F, A. Aechternacht was plaintiff and Joanna Mickly, defend- ant, by which taking of unlawful fees aforesaid, the plaintiff was injured. Demand, $100. Adjourned to May 6th, 10 a.m. Parties appear. W. W. (sw.) plff. Adjd. to the 11th, 10 a. m. Plaintiff appears. Judgment, publicly, for plaintiff, for one hundred dollars. May 13th, defendant appeals. I am held in $50 as bail absolute in this case, conditioned for the payment of all costs accrued, or that may be legally recovered against the appellant. Signed, C. Wrcxerty, New Lond. Towns’p. VII. Crviz surr. September 19th 1860, summons issued. J. Walker, c. Returnable September 24th, 3 p.m. Served, an oath, on the defendant, by producing to him the original sum- mons, and informing him of the contents thereof. PIff. claims for work and labor, and services rendered in selling a tract of land for defendant. Demand, $35. Two subpoenas for plain- tiff. Parties appear, and agree to leave all matters in variance between them to H. C., B. S. and J. W., to meet at 7 o’clock, in the evening of October 4th, at the office of J. R., Exq., No. 188, N. Fourth Street. September 26th, delivered the rule to the plaintiff; and served notices on the arbitrators. Two sub- poenas for plaintiff. October 17th, received the report of the arbitrators. Notified the parties to appear. October 19th, 12 n., plaintiff ne Judgment according to the award, for twenty-two dollars and eighty-seven cents. Money paid into office, eceived satisfaction. Signed, Joun Top, Agent for Plaintiff. DOCKET ENTRIES AND FEES. Sroxes Dickson 8. Srxty Martiack. costs. Justice, Entering action 10 Summons . ~ 6 « 2 10 Return andc.oath . . . 16 Continuance . . . . 10 Subpena pli . 5 10 Subp. deft. 5 names . 18 Six oaths . a 18 Continuance 10 Continuance’ . . 10 Trialand judgment . 25 Execu’n, ret. and satisfac’n 30 Constable Serving summons. 10 Mileage, 3 m. circular 9 Serving subpoena . . . 10 Mileage, 2 m. circular - 6 Serving execution . - 25 Mileage, 2 m. circular » 6 $2.32 Henry Kixer vs. JaBEzZ RaMsHaRt. cosTs. Justice. ' Entering action 10 Summons . . . . 10 Return, ando.oath . . 15 Rule to refer os & 5 Rule of referenco . . . 1 Notice to referees . . « 1 Notice to plaintiff Ww Notice todefendant . . . 10 Entering report and judgment 10 Execution... Bie ce Return » 6 «© «» « W Satisfaction ee) Constable. Serving summons . - 10 Mileage,1m.cireular . . 3 Serving notice on plff. 10 Mileage, 3 m. circular : : 9 Serving notice on deft. Mileage, m.circular . . 3 Serving notice on 3 referees . 30 Mileage, 8 m. circular « 24 Serving execution . » 2 Mileage, 1 m. circular - 8 $2.57 Ava BupDEy vs. Duxe ELDERBERRY. cosTs. Justice. Issuing precept . . . Hearing and determining Recording proceedings , . Writ of restitution . Constable. Serving precept . Mileage, 2 m. circular Executing writ of possn. . Mileage,2m.circwlar . ee yee 7 wy a3 |: 287 VIII. Crvin surr. August 17th 1860, summons issued. D. Rittenhouse, c. Returnable August 23d, 8 a.m. Served on oath, personally, on the deft., by producing to him the original summons, and informing him of the contents thereof. Parties appear. Debt, work and labor done, and materials furnished, $45.05. Deft.‘claims a set-off for money paid and laid out to the use of plff., $44. Adjourned to the 27th, 8 a.m. Sub- poena for plff. Subpoena for five witnesses for deft. Parties appear. J W. (sw.) deft. D. K. (sw.) deft. D. R. K. (sw. deft. J. M: (aff.) deft. L. K. (sw.) plifi R. H. (aff.) plff. Adjd. to the 30th, 8 a.m. Parties appear. Adjourned to 12 n. Parties appear. Judgment, publicly, for the plaintiff for forty dollars. Execution issued Sept. 22d, Returnable Oct. 12th. Money paid into office. , Received satisfaction. G. Davis, Agent for Plaintiff. IX. Crvin surr. September 10th 1860, summons issued. J. Walker, c. Returnable September 16th, 10 a.m. Served, by leaving a copy at the dwelling-house of defendant, in the presence of one of his family, on oath. Parties appear. Debt, . work and labor done, 33 days’ wages, $30 a month, $38.25, credit, cash $11. Demand, $27.25, referred to J. F., T. H. and M. R., to meet September 19th, 7 a. u., at Hollahan’s tavern, Chestnut St., No. 201. Notified the arbitrators. December 13th, received the report of the arbitrators. Notified the parties December 13th, to appear December 16th, 10 a. u., to show cause why judgment should not be entered according to the award, &. Parties appear. Judgment, according to the award of the arbitrators, for the plaintiff, for seventeen dollars. Execution issued, December 28th. Returnable January 18th. Money paid into office. Received satisfaction. Signed, Henry Kixer. X. Lanpiorp AND TENANT’S CasE, under the Act of 3d April 1830. July 14th 1860, complainant appears and makes oath that in August 1859 he demised to defendant a certain tenement, No. 3 Lafayette Court, in the city of Philadelphia, reserving rent; the rent whereof is in arrear and unpaid; that there are not sufficient goods and chattels on the premises to pay or satisfy the said rent, except such as are by law exempted from levy and sale, and that the said lessee has, after being duly notified, according to law, neglected or refused to re deliver up possession of the said premises. Same day, sum- mons issued, returnable July 18th, 6 p.m. G. W., constable, Served on oath. July 18th, parties appear, and, it appearing that said complaint is in all particulars just and true, judg- ment is hereby entered against the said Duke Elderberry, the lessee, that the premises aforesaid shall be delivered up to the lessor, the said Adam Buddey, and the rent in arrear is ascer- tained to be $56.44. Writ of possession issued July 24th. Returnable August 3d. July 28th, the constable returns “possession of the premises given to the plaintiff this day; costs paid into office.” July 28th G. Wauuacs, Constable. 288 Parry PartRipce vs. Taapy TELLTALE. costs. Tustice, Entering action . 10 Summons. . . 10 Return, and. oath . 15 One oath . 3 Continuance : 10 Subp. 3 witnesses . i Trial and judgment . 25 Execution. . 15 Return Se 10 Satisfaction are, Mor ates 5 Rule, charged as 9, search 10 Notice of rule . . .« 10 Continuance . 10 Subpeena, 2 witnesses 12 Continuance - « « 1 Two oaths . . 6 Continuance . 10 Rule discharged, charged as a search . . . . . Execution . 16 Return 10 Constable. Serving summons 10 Mileage, 5 m.cireular . Serving subp., 3 witnesses Mileage, 7m.cireular . . 21 Serving execution - 25 Mileage, 5 m. circular »~ b Serving al. execution « 2 Mileage, 5 m. circular » 15 $3.76 JONATHAN WINEBIBBER v8. Toney SoBERSIDES. costs. Justice. Entering action 10 Summons... 10 Return, and c. oath . 15 Continuance i . 10 Oneoath . . . «© «. 38 Trial and judgment . 25 ibs ew ew LO Oath of bail Be te ee Execution . oo. 2 B Return ee ee ee Assignment of judgment charged asasearch . . «© « Constable, Serving summons . 10 Mileage, 2 m. circular 6 Serving execution 25 Mileage, 2 m. circular 6 $1.68 James GRASPALL, to the use of Joe Jones, ve. THEODORE JEMINGSON. costs. Justice. Entering action . 10 Summons ea Moin, Cra 10 Return and oath of const. 15 Continuance » « - 10 Discontinuance. . » «» 5 Constable. Serving summons 10 Mileage, 2 m. circular». 6 DOCKET ENTRIES AND FEES. XI. Crvm surr. September 6th 1860, summons issued. J. Walker, c. Returnable September 12th, 9 a.m. Served on the defendant on oath, by producing to him the original sum- mons, and informing him of the contents thereof. Parties appear. Debt, goods sold and delivered. Demand, $4.79. I. D. (sw.) plff. Adjourned to the 16th, 9 a.m. Subpoena for deft., for three witnesses. Plaintiff appears. Judgment, pub- licly, for the plaintiff for four dollars and seventy-nine cents. Same day, execution issued. Returnable October 5th. Execu- tion stayed by a rule on the plaintiff, to show cause why the judgment shall not be opened, in consequence of an error in the subpoena as to the hour of meeting. Adjourned to the 26th, 9 a.m. Notified the plaintiff. Parties appear, Sep- tember 26th, adjourned to October 6th, 9 a.m. Subp. for two w. for defendant. Parties appear. Adjd. to the 10th, 9 a.m. October 8th, issued two attachments for F. D. and I. H., de- faulting witnesses. Parties appear. J. D. (aff.) and I. H. (sw.) for plff. Adjd.to3 p.m. Plaintiff appears. Rule dis- charged, and alias execution issued, October 10th. Returnable October 30th. October 31st, money paid into office. Received satisfaction. Signed, No. Nosuz, Atty. for Plaintiff. XII. On «4 promissory note. June 25th 1860, summons issued. G. Wallace, c. Returnable July 1st, 10 a.m. Served on deft. on oath, by producing to him the original summons, and informing him of the contents thereof. Parties appear. Debt, as indorser of a promissory note drawn by S. Brady, dated March 16th 1860, at 90 days, for $40. Demand, $40. Adjourned. Parties appear. Adjd. to 16th, 4 p.m. Parties appear. F. T. (sw.) plff. Judgment, publicly, for plff. for forty dollars. August 6th, I become absolute bail in $85 for stay of execu- tion. Bail justified on oath. Signed, Geo. Laws, No. 118, Lawrence St. August 21st 1860. For a valuable consideration, I transfer to F. Toma, all the right, &c., of the plaintiff to this judg- ment, &c, Signed, Jos Jonss, Atty. for the Plaintiff. Execution, issued January 25th 1861. Returnable Feb- ruary 15th. Interest, $1.20. Ret’d ‘no goods.” XIII. Crvm surr. May 7th 1860, sums. issued. D. R., const. Ret., May 13th, 11 4. «. Served, on oath, on deft., by producing to him the original summons, and informing him of the contents thereof. Parties appear May 13th. Debt, oe sold and delivered, $39.31. Titerdet $7. Demand, 46.31. Adjd. to the 15th, 9 a. mu: Parties appear. Deft. produces an order under seal of the court of common pleas of Phila. county, dated March 13th 1860, stating that the deft. having exhibited to the court the consent in writing of a majority in number and value of his creditors, the said court order that he be released from all suits, &c., for any debt con- tracted, or cause of action created previously, and that he be discharged for seven years thereafter. Whereupon the plff. withdrew his suit, and paid the costs. DOCKET ENTRIES AND FEES. 289 ForM OF A SUMMONS FOR A PENALTY FOR HAVING ISSUED A SMALL NOTE IN THE NATURE, &C., OF A BANK NOTE, CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Eighth Ward, or to the next Constable of the said city most convenient to the defendant, greeting: You are hereby commanded to summon Job Ox, president of the X. Y. and Z. Savings Institution, to be and appear on the first day of May 1860, at nine o’clock in the forenoon, before J. B., one of our aldermen in and for the said city, to answer John Leo, who sues as well for himself as for the guardians of the poor- of the city of Philadelphia, for a penalty of five dollars for a violation of an act of assembly, passed April 12th 1828, concerning small notes. * Witness our said alderman, at Philadelphia, who hath hereunto subscribed his name and affixed his seal the 26th day of April, in the year of our Lord 1860. [Alderman’s Office, No. 36 S. Sixth st.] J.B., Alderman. ([seat.] Indorsed, “ Served on the defendant, April 27th 1860, by producing to him the original summons, and informing him of the contents thereof. . : Grorcz Watuacz, Constable, May Ist.” JoHN Leo, who sues as well for himself, as the guardians of the poor of the city of Philadel- phia, vs. Joz Ox, president of the ' X. Y. and Z. savings institution. COSTS. Justice. Entering action Summons . . . . . Return of summons and oath . Subp. two witnesses . a Al Ad’ng 3 oaths Continuance of suit . Trial and judgment Execution . . Return oa a ate Return on certiorari Constable. Serving summons Mileage, 5 m. circular Serving 2 subp. by copy '- Mileage, 3 m. circular . Serving execution . Mileage, 5 m. circular Amos PaInTER vs. Aaron PENNYFINDER. costs. Justice, Entering action . 10 ci. fa. Re aiienys pat 20 Return and oath of ¢. 15 Judgment, &e. . 25 Receiving and paying over Satisfaction . . . Constable Serving sci. fa. by copy . Mileage, 6m. circular « 19 XIV. For a PENALTY FOR ISSUING A SMALL NoTE. April 26th 1860, summons issued. G. Wallace, c. Returnable May Ist, 9a. m. Served, on oath, on the deft., by producing to him the original summons, and informing him of the contents thereof. Parties appear. Subpoena for two witnesses for plff. .PIff. complains that the deft. has violated the provisions of the Ist and 2d sections of an Act of Assembly passed April 12th 1828, entitled “An act concerning small notes and the pay- ment of money,” by having issued, or caused to be issued, a note or ticket, purporting to be a note or ticket in the nature, character and appearance of a bank note, for a less sum than $5, to wit, for 50 cents, whereby he has incurred a penalty of five dollars, which plff. claims. Plff., by his counsel, H. H., Esq., asks that this suit and two other suits, between the same 9| parties, now pending before the same alderman, for a similar offence, may be consolidated, which request the alderman declines to comply with, as being against the letter and spirit of the act of assembly. T. D. feo pif. 5S. P. (aff.) on his vy. D. The witness and deft.’s counsel object against 8. P., as not being a competent witness, he being a stockholder in the X. Y. Z. savings institution. Objection overruled. - S. P. (aff.) and examined. Adj’d to the 4th, 84.4. um. Parties appear. The alderman publicly declares that the deft. is convicted, and gives judgment for the plff. for five dollars. Same day, exe- cution issued. Returnable May 24th. May 26th, received a certiorari from the court of common pleas. Same day, super- seded the execution and made a return to the certiorari. XV. Crvin suit. Sci. fa. issued 7th October 1860. D. Rittenhouse, c. Returnable the 14th, at 9 o’clock, a. m., re- quiring Aaron Pennyfinder, the landlord, to leas and show cause why the just account of his tenant, Amos Painter, should not be set off against his claim for rent. D.R., c. (sw.) served by leaving a copy at the dwelling-house of the deft., jn the presence of one of his family. And now, 14th, parties appear, and plaintiff claims to off-set his just account of $50 for goods sold and delivered to defendant, against his demand for rent of $87.50. On hearing, off-set allowed and rent adjudged; balance due, $37.50. Defendant agrees to accept the amount adjudged to be due, which is paid into office. Received the sum of $37.50, in full of rent due to the first inst. Signed, Aaron PENNYFINDER. 290 Jacos Farrurun v8. Perer Simpie. cosTs. action 10 Site ls ts 10 and oc. oath . 15 . - 10 - 6 + 20 oath 3 10 Trial and » 25 Bail . . - 10 Transcript. . . . 20 © Rule (charged as a search) 10 Notice to plaintiff . . 10 Continuance 10 Appeal, &c, a oe see AD Transcript for plaintiff . . Prothonotary’s certificate (ch’d 10. asasearch) . . . « 10 ‘xecution .« . 15 Return 2 oe eK 10 Satisfaction eo 6 2 « & Constable. Summonsserved . . . 10 Mileage, 2 m. circular Serving execution : 25 Mileage, 2 m. circular . 8 $3.13 Rusa Runny vs. Kite Kiniinesworta. cosTs. Justice. ~ Entering action 10 Summons . a 10 Return, and oath » . Ib Rule torefer , . re Rule of reference . Notice toreferees . . . 15 Notice to parties . ‘ Continuance 2 . . . 10 Notice to parties . 20 2d rule of reference 5 Notice to referees 15 Notice to parties . . . Entering rept. and judgment . 10 Continuance. . ee Receiving and paying over Satisfaction o 8 Constable. Serving sums. . . . Mileage, 3m. circular . Berving 3 notices on the refe- Tees twice, 10 cents each Mileage, 18 m. cirowlar . e 20 10 entered as of the 19th inst., bail for stay o DOCKET ENTRIES AND FEES. XVI. .Crviz suit. June 19th 1860, summons issued. G. Wallace, c. Returnable, June 25th, 10 4. mu. Served a copy at defendant’s dwelling in the presence of one of his family, on oath. Parties appear. Adjd. to the 26th, 11 a.m. Parties appear. Debt, work and labor done, and services rendered in the sale of certain real estate. Demand, $14.50. J. R. (sw.) pli. W. E. (sw.) plff, Adjd. to the 27th, 104. mu. Parties appear. Adjd. to the 28th, 10 a.m. Parties appear. A. L. (sw.) deft. Adjd. to the lst July,9 a. m. Parties appear. Judgment, publicly, for the plaintiff for fourteen dollars and fifty cents. uly 19th, I become absolute bail in $30 for stay of execu- tion, Signed, Micut. Barry, No, 479 N. 2d st. July 20th, transcript for defendant. July 23d, rule on plaintiff to show cause why bail for an ae shall not be execution having been put in by mistake, as appears from the affidavits of defend- ant and his bail, filed in this office. Rule returnable July 25th, 12 w.~ Plaintiff notified. Plaintiff appears; defendant does not appear. Rule dismissed. Same day another rule granted on the plaintiff, returnable July 27th, 12 n. Notified plaintiff. Parties appear. Adjd. to the 29th, 12N. Parties appear, and on hearing, the defendant allowed to enter bail for an appeal as of the 19th of July. Same day, transcript for defendant. September 28th, transcript for plaintiff. Same day, received a certificate from the prothonotary of the court of common pleas that no appeal in this case had been filed. Execution issued, September 28th. Returnable, October 18th. Money paid into office. Received satisfaction. Signed, Jacos Fairarut. _XVII. Orv surt. June 6th 1860, summons issued. J. Walker, c. Returnable the 12th, at 4 p.m. Served, on oath, by producing to the deft. the original summons, and informing him of the contents thereof. June 12th, parties appear. Debt, goods sold and delivered and money lent. Demand, $55.40. Parties agree to submit all matters in variance to J. M., J. V., and J. K., to meet June 19th, 4 Pp. m., at plaintiff’s house. June 23d, received the report of the arbitrators. Notified the parties to arpear June 29th, 10 a.m. Parties appear. Arbi- trators report that they find for the plaintiff $50. Parties agree that the award shall be sent back to the same arbitra- tors. Adjourned to July 8th, 10 a. m. July 3d, received report of the arbitrators awarding plaintiff $50. July 5th, notified parties to appear, &c. July 7th, 12 N., parties appear and agree to set aside the award, and to refer all matters in dispute to J. W., J. O., and J. K., and that their award shall be final and conclusive. Arbitrators to meet on the 10th inst, at 5 p. u., at J. K.’s house. July 14th, referees file report. July 16th, notified aw to appear July 18th, 9 a.m. Par- ties appear the 18th,94.m. Referees find for the plaintiff forty dollars. Judgment for the plaintiff, on report of the referees, for forty dollars. Same day money paid into office. Received satisfaction. Signed, Kitix Kin.inesworra. . DOCKET ENTRIES AND FEES. SrerHen AsituB DS. Barnaby Brasier. costs. Tustice. Entering action + 10 Summons . . . - 10 Return and c. oath . 15 Continuance 10 Two oaths . 6 Continuance Soi 10 Subp. 2 witnesses . .« » 12 Continuance + » «= 10 Five oaths . ~ b Two continuances = 20 Subp. 2 witnesses ~ 2 Two oaths . 6 Continuance . . 10 Trial and judgment. . 38 eceiving and paying over Satisfaction ca =e . 5 Constable. Serving summons 10 Mileage, 2 m. circular 6 Three witnesses for plf., one day each . . . Mileage, 6 m. circular ON $2.95 JoHN THompson, for the use of ABRAHAM SprincuP vs. Incram Insrep. « COSTS. Justice. Entering action . - 10 Summons . . . - 10 Return and o. oath 1b Trial and judgment . « Trans. for deft... - 20 Execution . . Ub Return é + 10 Satisfaction 3 6 Conatable. Serving summons. » 10 Mileage, 4 m. circular - 12 Serving execution « 25 Mileage, 4 m. circular - 2 $1.69 Many Txovsanps vs. Somz Hunpreps. costs. Justice. Entering action . . 1 Summons . . = 10 Return and c. oath =. 15 Judgment of nonsuit, charged ag a search 10 Execution . - 1 Returo 10 Constable. Serving summons. Mileage, 4 m circular Serving execution Mileage, 1 m. circular 291 XVIII. Civin suit, July 9th 1860, summons issued. J. Walker, c: Returnable July 25th, 9 4. m. Served on the deft, on oath, by producing to him the original summons, and informing him of the contents thereof. Parties appear. Debt, horse and gig hire, Sept. 1859, $9; horse hire, March 31st, $1; demand, $10, and 90 cents interest. Adjd. to the 24th, 9a. m. Parties appear. J.J. (sw.) pli J.D. (sw.) deft, Adjd. to the 1st August, 9 a. a, Subpoenas for plff. for two witnesses, Parties appear, Adjd. by consent of parties to the 2d, 8 a. m. Parties appear. W. B. (sw.) pli. J. D..(sw.) pif. J. W. (aff.) deft. D. J. (sw.) deft. J. W. (sw.) to the service of a subp. at the dwelling-house of A. Z., to attend as a witness for 'plff. Plff. prays that an attachment may issue against the ‘said A. Z., which the magistrate refuses, there being no proof that the subpoena had been personally served on the said A. Z. Adjd. to the 8th, 11 4. m. Adjd. by consent of parties tc the 9th, 11 a. w. Subp. for two witnesses for deft. Parties ap- pear. PIff. puts in a further claim for $3.50, for money fac i laid out and expended to deft.’s use. F.H. (sw.) pli. J. W. (sw.) deft. Adjd. to the 11th, 10 a.m. Plff. appears. Judg- ment, publicly, for the plff,, for five dollars and eighty-two cents. Money paid into office. : Received satisfaction. Signed, Josrra Gray, Atty. for Plff. XIX. Crvin surr. May 24th 1860, summons issued. G. Wallace, c. Returnable May 30th, 12 n. Served, on oath, on the deft., by producing to him the original summons, and informing him of the contents thereof. Parties appear. Debt as per J. T.’s assignment, dated June 11th 1858, of a claim on the deft. for work and labor done. Demand, $61. The assign- ment is produced before the alderman by deft., agreeably to notice given by plaintiff. The agreement between J. T. and J. S. W., dated September 15th 1857, given in evidence. De- fendant admits that there is money of J. T.’s in his hands, sufficient to pay the demand, but pleads that attachments have issued out of the district court of the city and county of Philadelphia, which attachments have been issued since the assignment and notice to the defendant. On hearing, judg- ment, publicly, for the plaintiff for sixty-one dollars. June 28th, transcript for defendant. Execution issued June 29th. Returnable July 19th. Money paid into office. Received satisfaction. Signed, ABRAHAM SPRINGUP. XX. Crvit surf. Summons issued 5th December 1860. D. Rittenhouse, c. Returnable 10th, 9 a. u. Constable re- turns, on oath, “ Served on defendant, by producing to him |the original summons, and informing him of the contents thereof, 6th December 1860,” and now, 10th of December, the defendant appears, and the plaintiff not attending to sub- stantiate his claim, the defendant asks, and the justice grants a judgment of nonsuit, with fifty cents for defendant’s reason- able costs and trouble in attending the suit. Same day, exe- cution issued for costs, and returned with the defendant’s receipt. Costs paid into office. 292 Jozi Maruras vs. Buck Meyers, Bail of High Town for stay of execution. costs. Tustice. Entering action » 10 Soi. fa. re + 20 Return, and oath of o, 10 Trial and judgment . 25 Execution . . 15 Return Sg 10 Satisfaction 5 Marking judgment, &o., for the d use of defendant, charged as asearch . . . . . Constable. Serving sci. fa. personall: . 10 Onewilecireular . . .« 38 Serving execution - 25 Mileage . 6 « . 3 $1.46 Moszs Nerpay vs. AnTHony JOLLY. ‘ costs. Justice, Entering action ‘ 10 Summons . . 10 Return and oath . 15 Jwigment confessed . 10 Entering bail. en Oe, 10 Rule, charged as a search Ww Notice to plaintiff . . 10 One oath . 3 Continuance 10 Two oaths . 6 Execution . 15 Return Me ie se - 10 Two witnesses . . . - 50 Mileage, ea. 3 m. circular 18 Constable. Serving summons . 10 Mileage, 2 m. circular ‘é - 6 Serving notice on plff. .« 10 Mileage, 2m. circular . . 6 Serving execution 25 Mileage, 2 m. circular. ; 6 $2.50 Wickeree Wiccins vs. Caspar Puystcx. costs. Tustice. Entering action 10 Summons . . . 10 Return, and c. oath . 15 Qne oat! or te Se 3 Subpena, 3 witnesses 16 Three oaths ot ale 9 Continuance 10 One oath . 3 Continuance. 10 Trial and judgment . 25 Execution . . at) Return 10 Constable, lerving summons =, 10 Mileage, 2 m. circular 6 jerving exeoution . » 25 Mileage, 4 m. circular 12 $1.89 (a) Where the judgmen de: endant, and he requests an execution, as DOCKET ENTRIES AND FEES. XXI. Crvin surr. Sez. sft issued, 15th: April 1860. J. Clapp, Jr., c. Returnable 27th, at 9 o’clock, a. u. Returned, served, on oath, on deft., by producing to him the original writ, and informing him of the contents thereof, 15th of April ; and now, 27th of April, parties appear. Plff. claims $75. Debt, interest and costs due on a recognisance of bail, dated May 7th, a. p. 1859, on the docket of Justice Mills. Record roduced, and judgment, publicly, for plff. for seventy-five olin, Same day, execution issued. Returnable May 17th. Constable returns, “levied on one horse and wagon; sold, and proceeds of sale paid into office.” Received satisfaction of judgment and costs. Signed, Jout Maratas, May 17th, original judgment marked to the use of Buck Meyers. May 18th, paid to defendant $10.76, being the overplus of the proceeds of the sale, paid into office by the constable. Received $10.76, Signed, Buck Meyers. XXII. Crvin surr. June 8th 1860, summons issued. J. Clapp, Jr., const. Returnable the 14th, at 104. mu. Returned, on oath, served on tle deft. by producing to him the original summons, and informing him of the contents thereof, the 10th inst. June 14th, parties appear. Debt, promissory note, dated April 4th 1360, on demand, for $35.50. Judgment by consent for the plaintiff for thirty-five dollars and fifty cents. Same day, I became absolute bail in this case in $75, for stay of execution. Signed, J. Laws, No. 20, Bear St. September 3d, rule on plaintiff to show cause why the bail shall not be stricken off, the defendant being dead. Served a notice on pate returnable September 6th, 12. Nn. Parties appear. W. (sw.) plff. Adjd. to the 7th, 3 p.m. Parties appear. W. W. (sw.) plif. J. N. (sw.) plff. Rule discharged. Dec. 15th,‘ execution issued. Returnable Jan. 4th 1861. Settled on the execution, as appears by plff.’s receipt. Costs paid into office. XXII. Crvin_surr. Sept. 22d 1860. Summons issued. G. Wallace, c. Returnable Sept. 28th, 114. m. Served, on oath, by a copy left at the dwelling-house of deft., in the pre- sence of one of his neighbors. Sept. 28th, parties appear. Debt, money paid into the T. W. B. society, and divided b defendant, as one of a committee of said society. Demand, $5.75. W. S. ay deft. Subp. for plaintiff for three wit- nesses. M. H, (sw.) plff. E. F. (sw.) pli. G. F. (sw.) deft. Adjd. to the 3d October, 9 a. u. Defendant admits $1.62, pleads a tender, and pays into office $1.62}, and the costs to this time. Parties appear. Adjd. to the 6th, 4p. m. Parties appear. G.F. (ex.) M. G. (sw.) deft. Adjd. to the 8th, 4 P.M. Parties appear. Judgment, publicly, for the defendant. Execution issued October 26th, by order of genes (a) Returnable November 15th. Costs paid by plaintiff. Receive for G. F. fifty cents, and M. G. twenty-five cents, witness- money, and paid it to defendant, who had paid the witnesses. is in favor of the plaintiff, he must be made defendant, and the original defendant made plaintiff. in this case, to issue against the original DOCKET ENTRIES AND FEES. 293 Frispy FRiepuine vs. Avcustus DirxHart, cOsTS. Tuatice. Entering action . . . - 10 Summons . . . . . Return, and ec. oath . . . 1b Twooaths . . 6 eo Continuance - » « 10 Subpena,2w. . 2. . . 12 Twooaths . . . .« «© 6 Continuance 10 Oneoath . . Trialand judgment. . . Entering credit, charged as a search . Boys! ig) «sie Appeal, transcript, &e. . . 40 Constable, Serving summons . s . 10 Mileage,2m.ciroular . . Serving two subpoenas person- AYP 6 ah eh ee oe Mileage,6m.circular . . 18 $2.11 Joacuiu Lez v8. AminipaB JONES. XXIV. Crviz surt. September 30th 1860, summons issued, G. W., c. Returnable October 5th, 10 a. u. Served on the defendant, by producing to him the original summons, and informing him of the contents thereof, on oath. Parties appear. Debt, one quarter’s rent, ending 2lst September 1860. De- mand, $43.75. A. L. (aff.) plff. M. L. Ce deft. Adjd. to the 7th, 10 a.m. Subp. for two w. for plff. Parties appear. Adjd. to the 8th, 83.4. mu. Parties. appear. PIff. desires to amend his claim by demanding $4.81, money laid out and ex- pended for deft. E. B. (sw.) deft. M. A. (sw.) deft. eae 0) to the 10th, 8} a.m. Parties appear. M. K. (sw.) plff. S. (sw.) pl. Deft. claims a set-off, for goods. sold and deli- 25 o| véred, of $3. W.L., re-examined, Adjd.to5 p.m. Parties appear. J. H. (sw.) plff. The deft. tenders to the plff. a judgment for $12.09, which plaintiff refuses to pocept Judg- ment, publicly, for the plff. against the deft. for forty-seven °| dollars and fifty cents. October 24th, pliff. desires deft. to be 2! credited for $25, paid this day to plff. by deft.s Defendant appeals. October 26th,-I become bail in this case, in $100, conditioned for the payment of all costs accrued, or that may be legally recovered against the appellant. Signed, . Wricut, Girard Place, No. 200. November 9th, Transcript for defendant. XXV. Form oF, AND THE PROCEEDINGS ON, A RULE TO SHOW CAUSE, &C. Before G. H., a justice of the peace, Vincent township, Chester county, May 10th 1860. Sir, The defendant in this case has this day, 10th of May 1860, taken a rule on you to show cause, if any you have, why his plea of freehold in this case shall not be admitted, and the exe- cution stayed. I have appointed the 13th of May inst., at 10. o’clock, a. ., at my office, in Vincent township, for the return of this rule, at which time and place you are requested to attend. Yours, respectfully, G. H., Justice of the Peace. To Joachim Lee, Plaintiff, West Chester. The rule being handed to the constable, who has the execu- tion, he is required to serve it, and make return of the service, in the same manner as he would a summons, save only as to time. He will, as in the case of a summons, indorse on the rale the time and manner of the service, &c., and return it, on oath or affirmation. If the parties appear, the defendant is called upon to exhibit his deed, or other satisfactory evidence of his being ‘a freeholder; which having done to the satisfac- tion of the justice, and paid the costs of the execution and the rule, his plea of freehold is recorded on the docket of the jus- tice, the execution is stayed, and the defendant is allowed the stay of execution which the law allows for the amount of the judgment against him. If the plaintiff do not appear, the justice, being satisfied as to the service of the rule, should enter upon the inquiry, and act, in every respect, as if the plaintiff were present. After what has already been said in relation to keeping the docket, it may be superfluous to remark, that everything done, in relation to the rule, should appear on the record. The fol- lowing would be a sufficient entry on the docket :—“‘ May 10th, defendant takes a rule on plaintiff to show caise, if any he has, why the defendant shall not be admitted to plead his free- hold, and stay the execution. Rule returnable May 13th, 10 a. M. Served, on oath, on plaintiff, personally, May 13th. Parties appear. Defendant’s plea of freehold is admitted ; the rule made absolute, and the execution stayed.” 294 DOCKET ENTRIES AND FEES. Docket Entries, in Criminal Cases. J. Conspiracy and forgery. II, Assault and battery. III. Assisting a thief to escape, IV. For perjury. CoMMONWEALTH v8. Georce Mayson. costs. Tustice. Information and oath (a) Docket entry a Warrant . . Examination, &o. One oat a de Continuance One oath Continuance Two subpanas . ee 10 Two oat! i Continuance Four subpenas . Two subpenas . Three oaths Continuance . . Recognisance of deft. . . Recog. of pros. and witnesses . ‘Transcript Constable Executing warrant , Mileage, 2 m. cireular Serving 2 subp. by copy . Mileage, 4m. circular . “$3.41 CoMMONWEALTH vs. Timotuy Wacon. costs. Justice. Information, &e. . ‘ Docket entry . . . Warrant we 3 2 lB oath witnesses of deft, . of witnesses Constable, Executing warrant , , Mileage, 2 m. circulaz . 9 Serving a subp. by copy . . 10 Mileage,6m.circular . . 18 $2.22 40 | pear next court of quarter sessions, &c. VY. Malicious mischief, &c, VI. Rioting at an election. VIL. Larceny. VIII. Assaulting and threatening, &c. I. April 25th 1860, warrant issued, D. Moody, c., on the afirmation of T. L. G., charging the defendant with having conspired illegally and fraudulently to make sale of, and to issue notes, purporting to be under the seal, and issued by the authority of the Tinicum Loan Company, of the State of Penn- sylvania, with intent to cheat and defraud the said company. April 26th, defendant pee up. C.D. (aff.) Bail required, $10,000. Defendant and G. H. each held in $10,000 for de- fendant’s appearance. Adjourned to4 p.m. Parties appear. 3/G.L.(sw.) Recognisance renewed, for defendant’s appearance from day to day. Adjourned 27th, 4 p.m. Two subpoenas for commonwealth. F. B. (sw.) c. G. H. (aff.) ec. D. Moody sw. to the personal service of the subpoenas on the defaulting witnesses. Attachments prayed for against L. M. and P. R., defaulting witnesses. Adjourned May Ist, 4 p.m. Two attachments and four subpoenas issued for the commonwealth. Two 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.. Parties appear. Bail required froin the defendant in $5000, for his appearance at the next court of quarter sessions, to answer the charge of a conspiracy to cheat and defraud certain corporations and individuals; and also in the further sum of $5000, to answer the charge of forgery, and transferring certain certificates of loan and cer- tificates of stock, in the name of divers persons and corpora- tions, which he was not authorized to transfer. George Mayson, 659 Walnut St.) each held in the sum of John Jones, 796 Chestnut St. $10,000, that the defend- ant shall appear, &c., at the next court of quarter sessions, to auswer, &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 to appear and testify, &e. Returned November 4th, to the court of quarter sessions. _——_. II. May 31st 1860, warrant issued, G. Wallace, c., on the oath of Debh. Fox, charging defendant with having, with others unknown, forcibly entered the house, troken 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 ae on the 27th May inst. June 5th, defend- ant ete D. F. (sw.) Bail required, $500. Defendant and Ld. Haws each held in $500, that the defendant shall ap- pear at this office June 15th,12 n. Parties appear June 15th. Adjourned to the 18th, 12 n. Subpoenas two witnesses for defendant. Parties appear. $500 bail required. pany Wagon, No. 834 Spruce St) each held in $500 that James Corncob, 10 Magnolia St. the defendant shall ap- Pe the proper county. | Debh. Fox, No, 364 Gray’s Court, held in $250 to testify, &c. Returned Dec. 20th, to the court of quarter sessions, (2) For the information the justice isentitled must depend upon the lergth of the informa- to one cent for every ten words, and three tion. cents for the oath. The charge for this service DOCKET ENTRIES AND FEES. Common WEALTH vs. Enoce Knoxer costs. Justice, Entering action * «6 » 1 Examination . » 10 One oath » 3 Commitment o 8 2 B Recog. of witness . 2. « 20 Transcript. . « - Constable, Arresting deft. . - B Mileage A se » & Serving commitment - 25 leage,3m.circular . . 9 $1.45 ComMonWEALTH vs, Davin Carver. Information o 8 8 Entering action . » arrant se One oath . Commitment RSRoRSS Recog. of witness Transcript. . ~ Constable. Executing warrant . . .« 40 Mileage,7m.circular . . 21 Serving commitment . « 2 Mileage,3m.circulag .« . 9 $2.13 ComMoNWEALTH v3. Epwarp WILD. costs. Justice. Information - 16 Entering action . - 1 Warrant ° - Oneoath . . - 3 Recog. of prosecutor 20 of defendant . - 20 Transcript . . 1 Constable. Executing warrant . 40 Mileage, 4 m. circular 2 $1.61 ComMonWEALTH: vs, J. G. Lonzt, Constable of . Second Ward. cosTs. Justice. Information « 20 One oath 5 Warrant . « 2 Three oatha hae - 9 Revog. of defendant . « 20 —— of witnesses - 2 Transcript . 16 Constable. Executing warrant . . . 40 Mileage, 16m.ciroular . . 48 $2.00 295 TIT. June 17th 1860, 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 Q. Power, charged with larceny, in making his escape from deponent, a constable of the city of Philadelphia, who was taking him under a commitment to Moyamensing prison. Bail required, $300. Defendant committed to the county rison. e J. Clapp, Jr., 178 Vine Street, held in $100, to testify, &c. Returned to the July sessions. IV. August lst 1860, warrant issued. J. Crawford, c.,-on the oath of Geo. Laws, charged the defendant with having, on his examination before Judge Jones, sitting as a judge of the Insolvent Court in October 1859, falsely and maliciously sworn, for the purpose of cheating and defrauding his creditors, in relation 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 hats, &c., are now in Philadelphia, and never were in Florida, and are not damaged. Same day defendant brought up. T. L, (sw.) Bail $500. Defendant committed to the county jail. G. Leony, of Penn Township, held in $250 to veatity next court of quarter sessions. Returned to the September sessions, &c. @ V. September 16th 1860. Warrant issued. J, Walker, c., on the oath of J. F. Bandanna, charging defendant with having maliciously torn down the fruit trees, and carried away the fruit 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. Geo. Perry, No. 700 Chestnut St.) each held in $100 that Ed. Wild, 78} Fifth St. the defendant shall ap- pear at the next court of quarter sessions, &c. J. F. Bandanna, 900 Chestnut St., held in $50 to testify, &. Returned to the October sessions. VI. October 5th 1860. 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 judges, inspectors and assessor of Second Ward in the city of ittsburgh, on the 4th inst., obstructed the passage to the polls, and otherwise doing all in his power to create a riot at the said election, in violation of his duty and oath of office as constable of said ward. Defendant appears, October 7th. E. M. (aff.) J. F. (sw.) G.W.S. (sw.) Bail required in $200 to appear at the next court of quarter sessions to answer, &c. J.C. Peters, Allegheny St., No. 77, and J. F., J. P. and J. R., Union Hotel, Beaver St., each held in $100 to testify. J.G, Lyonell, 73 Bank St., ) each held in $300 that the deft. 8. Pitty, 24 Centre St., shall appear, &c., at the next sessions, &c. a, Returned to the December sessions. 296 ComMMONWEALTH vs Micke. FLAKE. costs. Justice, Information One oath . Entoring action Warrant . a Subp..2 witnesses Oneoath . + Continuance. - Recog. of defendant . —— of witnesses. Transcript. +» «+ Constable. Executing warrant . Mileage, 2 m. ciroular ComMMONWEALTH vs. DOCKET ENTRIES AND FEES, Timotay Banman. costs. Justice. Information, &c. Entering action ‘Warrant Oneonth . . Recog. of deft. . . ——— of complainant Transoript . . . Constable. Executing warrant . Mileage, 8 m. circular (2) A committing magistrate in this state has no authority to bind a person to keep the peace, or for his good behavior, longer than until the next term of the court; and the case must then be heard before the judges of the quarter sessions, who have the right either to eave BS8oRSa a 8 sl: $1.7: \ VII. October 31st 1860. Warrant issued. J. Walker, c., on the oath of N. Goram, charging the defendant with havin feloniously taken off his boat at Middle Wharf, three tons o: coal, valued at $15, the property of deponent, with intent to cheat and defraud him. Subpoena for two witnesses. De- fendant brought up the same day. N. Y.(sw.) Defendant says he threw off about two tons of coal at Middle Wharf on the river Schuylkill a few days ago. Adjourned to November Ist, 12 yn. Defendant held in $100 to appear, &c. Parties appear. Bail required, $100 for defendant’s appearance, &c. Mickel Flake, 40 Walnut St., ) each held in $100 that deft. Geo. Jenny, 2d and Vine Sts., f 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. VIII. Jan. 12th 1860. Warrarit issued. G. Wallace, c., on the oath of William Timid, charging the deft. with having assaulted and threatened deponent, so that he is afraid defend- ant will do him harm in body or estate. Jan. 13th, Deft. brought up. W. T. (sw.) Bail required, $100. Timothy Banman, Upper Paxton Township, ) each held in Joel Standfast, Lower Paxton Township, $100 that the deft. shall appear, &c., at the next court of quarter sessions for Dauphin county, &c., and in the mean time keep the peace, &c. Wm. Timid, Harrisburg, held in $50 to testify, &c. Returned to March sessions.(@) to find bail to keep the peace, and for his good behavior for such period as they in their discretion shall require. It is the justice’s duty to make a return of such a case to the court, unless previously settled by the parties. 2 P. 458.. Bac. Use 11. Contra, Noy 103. dismiss the complaint, or order the accused L 297 J Dogs. I. Proceedings in reference to mad dogs. IV. Judicial decisions. II. Liabilities of owners of dogs. V. Order to destroy a dog TIT. When dogs the subject of larceny. I. Act 1 Aprin 1834. Purd. 350. Srot. 1. If any inhabitant of this commonwealth shall make complaint, under oath, to any justice of the peace within the county in which he resides, that any dog owned by a citizen of said county is mad or has been bitten by or been fighting with a dog that is mad, it shall be the duty of the said justice to give notice tu the owner to appear forthwith, for the hearing of the said complaint, upon which hearing, if the justice shall be satisfied that the said dog is mad, or that he has been bitten by or been fighting with a mad dog, hé shall be authorized to make an order that the said dog be killed; and if the owner of said dog shall refuse or neglect to put him to death immediately, or employ some one to kill him, he shall pay all legal costs accruing in consequence of his refusal or neglect; and in such case it shall be the duty of the justice to issue an order to any constable of the county who may be most convenient, directing him forthwith to put the said dog to death, and who shall execute the same under the penalty of five dollars; and if no constable can be had conveniently to execute the said order, then he may direct the order to any other- inhabitant of the county whom he may designate, whose duty it shall be, under the like penalty of five dollars, to execute the said order. j Ii. Aor 14 Aprit 1851. Purd. 350. Sot. 7. It shall be lawful for any person or persons to shoot or kill any dog or dogs found or known to be chasing or worrying sheep, or accustomed so to do within this commonwealth, without liability on the part of such person or persons to pay any damages therefor. Sect. 8. The owner or owners of any dog or dogs shall be liable for all damages done or caused to be done by any and every such dog or dogs in an action of tres- pass vi et armis, in the name of the person or persons injured, to be sued for and recovered before any court or justice of the peace having jurisdiction of the amount so claimed. III. WHEN DOGS THE SUBJECT OF LARCENY. It is provided by the act of 29th April 1844, that in all cases where taxes are assessed and paid on dogs, in the counties of Philadelphia and Allegheny, the said dogs shall be considered as personal property; and the owners shall be entitled to all the rights and privileges in relation to the same, as in other cases of personal property. Purd. 351. . The acts of 6th April 1854, 8d March 1859, and 21st March 1860, provide for the registry of dogs in the counties of Allegheny, Chester, Northampton, Schuyl- kill, Lancaster, York, Carbon, Clinton, Philadelphia, Franklin and Lycoming; and by the 3d section of the act of 6th April 1854, it is enacted that “ All dogs regis- tered according to the provisions of this act, are hereby declared to be personal property; and such dogs so registered as aforesaid, shall be as much the subject of larceny, as any other kind of personal property; and every person so stealing and taking away such dog, shall be liable to prosecution and indictment in the court of quarter sessions, and on conviction thereof, shall be sentenced by such fine or imprisonment, or both, as the court in their discretion may think proper.” Purd. 351. IV. An action of trespass will lie before a justice of the peace, against the owner of a dog, for injury done to the plaintiff, in worrying and killing his sheep. 7 Barr 254. 7 H. 359. And the defendant is liable, not only for the sheep killed by the dog, but for such injuries as may befall the flock from fright. 7 H. 359. 298 DRUNKENNESS, He is not liable, however, unless he previously knew that his dog had been known to worry or kill sheep. Ibid. To justify the killing of the dog, it is not necessary that he should have been seen tearing the sheep with his teeth; it is sufficient that he has been observed to follow them with a hostile intent, and that the owner knew of his propensity, 1 Gr. 82. The act of 1851 does not give a magistrate jurisdiction of a case of injury to a child, resulting from the bite of a dog: it has exclusive reference to dogs accus- tomed to worry sheep. 2 Phila. R. 44. V. ORDER TO DESTROY A DOG. COUNTY OF BRADFORD, ss. The Commonwealth of Pennsylvania, To the Constable of Y——— township, in the said county, greeting: .Wuerzas, complaint has been made, under oath, before me, one of the justices of the peace of the said county, that the dog [distinguishing him] owned by A. B. hath been seen fighting with [or hath been bitten by] a mad dog; [as the case may be;] of which fact due notice hath already been given to the said A. B., requiring him to put the said dog to death, And whereas the said A. B. hath refused or neglected to comply with the said order, as by law directed: Therefore, you are hereby commanded to put the said dog to death, without delay: hereof fail not, under the penalty of five dollars. Witness my hand and seal the 5th day of May 1860. J. R., Justice of the Peace. [szat.| Drunkenness. I. Penalty for intoxication; and form of III. Penalty for public drunkenness. conviction. IV. Judicial decisions, II. Execution to levy forfeiture. I. Aor 22 Apri 1794. Purd. 810. Szor. 3. If any one shall intoxicate him or herself, by the excessive drinking of spirituous, vinous or other strong liquors, and shall be convicted thereof, he or she shall forfeit and pay the sum of sixty-seven cents for every such offence ; or if such person shall refuse or neglect to satisfy the said forfeiture, or goods and 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. 2 Szcr. 4. Gives jurisdiction to justices of the peace to convict offenders against the preceding section, either upon their own view, or by process issued to bring the body of the accused before them, whereupon they shall proceed in a summary way to inquire into the truth of the accusation; and upon the testimony of witnesses, or the confession of the party, shall convict the offender, and pronounce the for- feiture aforesaid: every such conviction may be in the following terms, viz. : Br IT REMEMBERED, that on the [first] day of [May] in the year of our Lord [1860, A. B., of York county, laborer, (or otherwise, as his rank, occupation or calling may be is convicted before me, being one of the justices of the peace in and for the county o 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. [sxat.] Provided always, That every such prosecution shall be commenced within seventy- two hours after the offence shall be committed. Secor. 12. One moiety of the forfeiture to be paid to the overseers of the poor, &c., and the other moiety to the informer: and the inhabitants of any place may, notwithstanding, be admitted as witnesses. DRUNKENNESS. 299 II. ExEcurton TO LEVY FOREEITURE. COUNTY OF YORK, ss. The Commonwealth of Pennsylvania, To any Constable of the said county, and to the Keeper of the Prison of the county aforesaid, greeting: _ Wuerras, A. B. hath been this day duly convicted before J. R., Esquire, one of the justices of the peace in and for the said county, of being intoxicated by the excessive drinking of spirituous, vinous and other strong liquors; that is to say, on the —— day of ——, at ——, in the county aforesaid, contrary to the act of parcel seseaibly in that case made and provided, for which offence he hath forfeited the sum of sixty-seven cents, which fine he hath refused to pay. These are, therefore, to command you, the said con- stable, to levy the same by distress and sale of the goods and chattels of the said A. B.; but if sufficient goods and chattels cannot be found whereon to levy the same, together with costs, that then you take the said A. B., and deliver him to the keeper of the prison sf the county of York, who is hereby commanded to receive and keep the said A. B. in oafe custody for the space of twenty-four hours, or until he shall be legally discharged, there to be fed agreeably to law. And herein you are najther of you to fail. Witness our said justice, who hath hereunto set his hand and seal, the -— day of —, A.D. 1860. _ JR, Justice of the Peace. [szau.] TIT. Act 31 Marcu 1856. Purd. 667. Sect. 29. Any person who shall be found intoxicated in any street, highway, public-house or public place, shall be fined, upon the view of or upon proof made before any mayor, alderman or justice of the peace, not exceeding five dollars,(a) to be levied with the proper costs upon the goods and chattels of the defendant. IV. Informers under the summary proceedings authorized by the act of 22d April 1794, and other similar acts, are not liable for costs, if they fail in establish- ing 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 exactly followed; but if such a provision be merely directory, and the conviction contain everything required by the form given, it will not be vitiated by unnecessa- rily stating more than is required. The 4th section of the act of 1794, which gives the form, declares that “every such conviction may be in the following terms,” and is, therefore, clearly directory. 1 Ash. 411. The judgment must ascertain not only the amount of fine inflicted, but also the alternative duration of imprisonment. 3 P. L. J. 59. So odious is drunkenness in the eye of the law. that it has ever been held, that that artificial madness, which is produced and voluntarily contracted by drunken- ness and intoxication, and which, depriving men of their reason, puts them in a temporary phrensy, is an aggravation of the offence, rather than an excuse for any criminal misbehavior. 4 Bl. Com. 25. And Sir Edward Coke says, a drunkard, who is voluntarius demon, or a volun- tary 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. P. CO. 3. The voluntary intoxication of one who, without y :ovocation, commits a homicide, although amounting to phrensy, does not exempt him from the same construction of his conduct, and the same legal inferences, as affecting the grade of crime, which are applicable to a person perfectly sober. 4 Smith (N. Y.) 9. In general, a felonious homicide, committed by one in a state of intoxication, is deemed murder in the second degree. Where the mind, from intoxication, or any other cause, is deprived of its power to form a design with deliberation and pre- meditation, the offence is stripped of the malignant feature required by the statute to place it in the list of capital crimes. Lewis’ Cr. L. 405. 1 Am. L. J. 149. 4 Cr. C. C. 605. Evidence of intoxication is always admissible. Where the crime was committed (a) The act 21 April 1858, 3 22, provides of the school district, where the conviction is that the penalty shall not exceed two dollars; had. Purd. 668. and that it shall be paid over to the treasurer 800 DRUNKENNESS,. after provocation, it may be considered, in determining whether it was done in the heat of passion; and in other cases, whether threatening words were used by the sulprit with deliberate purpose, or otherwise; and generally to explain his conduct. 4 Smith (N. Y.) 9. The true criterion as to the capability of the prisoner to commit murder in the first degree, is, not whether he was drunk or sober, but whether he had the power, at the time, deliberately to form and plan in his mind the design and intention of killing his victim. If from intoxication, or other cause, the mind is deprived of the power to plan, deliberate upon, and purpose the death of another, if such act be the result of impulse, not of deliberation, then the perpetrator is not guilty of murder in the first degree. 83 Phila, R. 235. Insanity, of which the remote cause is habitual drunkenness, is an excuse for an act done by the party while so insane, but not at the time under the influence of liquor. The crime (to be punishable) must take place during a fit of intoxication, and be the immediate result of it, and not a remote consequence, superinduced by the antecedent drunkenness of the party. In cases, therefore, of delirium tremens or mania-d-potu, the insanity excuses the act, if the party be not intoxicated when itis committed. 5 Mason 28. Lewis’ Cr, L. 602. 1 Am. L.J.147. Wh. Cr. L. § 33. 1 Am. L. R. 38. 2 Cr. C. C. 158. 4 Smith (N. Y.) 9. 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. & Johns. 421. 1 Bouv. Inst. 227. 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, b the legal representatives of the obligor. 1 Hen. & Munf. 70. 1 Wash. 164. 3 Cow. 445. IP. 31. 18 Ala. 752. 2 Greenl. Ev. § 374. The contracts of an habitual drunkard, made after inquisition found, and before its confirmation, are void. 6 W. 139. The trustee of an habitual drunkard is not liable to an action upon a contract made by the drunkard before inquisition found, although he may have effects in his hands sufficient for the payment of the claim. 4 W: 459. To avoid a contract on the ground of drunkenness, it must be shown affirmatively to have been so excessive as to render the party incapable of consent, or, for the time, incapacitate him from the exercise of his judgment. 24 Texas 174. [ 301 ] Duelling. I. Constitutional provisions, - III. Judicial decisions. IL. Provisions of the Penal Code. _I. Any person who shall fight a duel, or send a challenge for that purpose, or be aider or abettor in fighting a duel, shall be deprived of the right of holding any office of honor or profit in this state, and shall be punished otherwise in such manner as is or may be prescribed by law;. but the executive may remit the offence and all its disqualifications. Const. of Penn., art. VI. § 10. II. Acr 31 Marca 1860. Purd. 221. Szcr. 25. If any person within this commonwealth shall challenge another by word or writing to fight at sword, rapier, pistol or other deadly weapon, or if any person so challenged shall accept the said challenge ;“in either case such person so giving or sending or accepting any such challenge, shall be guilty of a misdemeanor, and being convicted thereof, shall be sentenced to pay a fine not excebding five hun- dred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. Srcr. 26. If any person shall willingly and knowingly carry and deliver any written challenge, or shall verbally deliver any message purporting to be a chal- lenge, or shall consent to be a second in any such intended duel, every such person so offending shall be guilty of a misdemeanor, and being convicted thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an impri- sonment by separate or solitary confinement at labor, not exceeding two years: Sxor. 27. If any person shall have knowledge of any challenge to fight with any deadly weapon, given or received, or in any manner be witness to the fact of such challenge, duel or fighting, not being a‘second thereat or a party thereto, and shall conceal the same and do not inform thereof, he or she shall be guilty of a misde- meanor, and being convicted thereof, shall be sentenced to pay a fine not exceeding fifty dollars, and to undergo an imprisonment not exceeding twelve calendar months. Sxzer. 28. If any person shall, in any newspaper or handbill, written or printed, or otherwise, post, publish or proclaim any other person or persons as a coward or cowards, or use any other opprobrious and abusive language towards such person. for not accepting a challenge, or fighting a duel, such person or persons so offending, shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding one year. III. The offence of duelling consists in the invitation to fight, and the misde- meanor is complete by the delivery of the challenge. 1 Const. Rep. 107. If a jury believe a letter inviting to a meeting, though on its face it purports to be a challenge, be merely an empty boast, and in ridicule to the party to whom it is addressed, they may acquit; though it is otherwise, if they deem it in earnest. 6 J. J. Marsh. 122. 12 Ala. 276. It is a misdemeanor at common law to challenge another to fight with fists (2 Law Rep. 148), or to challenge another to fight under any circumstances, whether con- stituting the statutory offence or otherwise. 1 Hawks 487. 2 Brevard 243. Whart. Cr. L. § 2674. : Upon the trial of an indictment for carrying a challenge to fight a duel, the scienter must be proved. 3 Cr. C. C. 178. f 302 J ELabes-Dropping. HAVES-DROPPERS, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse and thereupon to frame slanderous and mischievous tales, are a common nuisance, and indictable at the sessions, and punishable by fine and finding sureties for their good behavior. 4 Bl. Com. 168. Lewis’ Cr. L. 233. 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 constituting a watch upon his wife. 6 P. L. J. 226. Eaves-dropping consists in privily listening or hearkening of the discourse, not in looking or peeping, which is not indictable; but if the defendant listen as we!] as look, he may be convicted. Ibid. In Tennessee, a prosecution for eaves-dropping can be maintained at common law. 2 Overt. 108. = mip Election Laws. I. Election of inspectors of the general VIII. Meeting and duties of the return election. judges. II. Duties of the assessors. IX. Township elections. III. Of the general election. X. Contested elections. IV. Mode of conducting elections. XI. Wagers on elections. V. Of the qualified electors. XIL. Penalties for misconduct. VI. Duties of peace officers, XIII. Miscellaneous provisions. VII. Of the closing of the polls. Tue purity of our elections is vitally important, not only to the welfare or our country, but to the freedom of the people and the perpetuity of the Union of the States. It is, therefore, of the utmost moment that every citizen should understand the laws which regulate our elections, so that, being well informed, he may courage- ously 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 cor- rectly and thoroughly, to the end that they may perform their duties intelligently and uprightly. ; The following pages embrace the general election laws in force throughout the commonwealth. There are various laws applicable only to particular localities which have, for the most part, been referred to in the notes, but the insertion of them at large would have inconveniently extended this chapter; the student is therefore referred to the pages of Purdon’s Digest, and of the Pamphlet Laws, for a more particular notice of such local statutes. I. Exxcrion orf INSPECTORS OF THE GENERAL ELECTION, It shall be the duty of the constable or constables of each township, ward and dis- trict, at least ten days before the day hereinafter appointed for the election of in- spectors, 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. Act 2 July 1839, § 1. Purd. 870. In case of the neglect, refusal, death or absence from the county, of the con- stable ox constables of any township, ward or district, the supervisors of the town- ship or Vistrict, or the assessors of the ward, as the case may be, shall perform the duties herembefore required to be done by such constable or constables under the like penalty. Provided, That the suid supervisors or assessors shall not be re- ELECTIONS. 803 quired to give more than five days’ notice of the time and place for holding such election. Ibid. § 2. ; The qualified citizens of the several wards, districts and townships, shall meet in every year, at the time and place of holding the election for constable of such ward, district or township, and then and there elect, as hereinafter provided, two inspectors and one judge of elections. Ibid. § 3. Each of such qualified citizens shall vote for one person as judge, and also for one person as inspector of elections, and the persons having the greatest number of votes for judge shall be publicly declared to be elected judge, and the two persons having the greatest number of votes for inspectors, shall, in like manner, be declared to be elected inspectors of elections. Ibid. § 4. 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 ap- pointed to hold the same, and to be kept open until seven o’clock, except in the city and county of Philadelphia, where it shall be kept open until eight o’clock in the afternoon,(a@) when the polls shall be closed,(b) the number of votes be forthwith ascertained, and the persons highest in vote, publicly declared to be elected. Ibid. § 5. Where any township has been, or shall be, divided in forming an election district, the qualified citizens of each part of such divided township, shall severally elect in the manner and at the time and place aforesaid, two inspectors for each of said several election districts, and shall also elect one person to serve as judge of the elections in each district, to perform the duties enjoined by the 6th section of this act. Ibid. § 7. 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 judge, and also for each township officer voted for at such election; one of which they shall, together with the tickets, list of taxables, list of voters, tally papers and the certificates of the oath or affirmation, taken and subscribed by the inspectors, judges and clerks, carefully collect and deposit in one or more of the ballot boxes, which boxes together with the remaining ones shall be secured, delivered and kept as for similar boxes is directed in the 74th section of the act to which this is a supplement; (c) until the next general election to be held thereafter; and the other duplicate shall be delivered by the judge of such election, within five days thereafter, to the clerk of the court of quarter sessions of the proper county, to be filed in his, office; and the said inspectors and judge shall also make out a certificate of election. for each person chosen as an \inspector, judge or township officer, which certificate shall be delivered to the person so chosen, or left at his usual place of abode, by the constable of the proper ward, township, district or borough, within five days after such election. Act 13 June 1840, § 1. Purd. 370. 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, (@) By resolution of 18 March 1840, P. L. 708, the polls of the ward and general election in the city of Lancaster, shall be kept open until nine o’clock in the afternoon. By act 2 February 1854, 3 30, the polls at all elec-. tions in the city of Philadelphia shall be opened at or before eight o'clock in the morn- ing, and shall be closed at seven o’clock in the evening. And by act 19 March 1856, the time for closing the several elections in the several wards, boroughs and townships in the county of Montgomery shall be eight o’clock in the evening. Purd. 370. (4) It is a sufficient ground to set aside an election, that the polls were closed at an > earlier hour than prescribed by law. 2 P. 526, But it is no objection, if the polls are closed at the proper hour, that a number of voters were in attendance whose votes were thereby excluded. 2 P. 625. Where a poll is kept open after the proper hour, and the number of votes polled afterwards can be clearly ascertained, if the whole of those votes could not change the result, the election will not for that cause be set aside; but where the majority is small, and the result rendered doubtful, by uncertainty as to the number of votes polled after the legal hour, the election must be set aside. 4 P. L. J. 341. (c) See infra p, 318. ba a 304 1 and by clerks appointed as is hereinafter provided.(a) Act 2 July 1839, § 14 Purd. 371. Every judge, inspector and clerk as aforesaid, shall receive the sum of one dollar and fifty cents, except the city and county of Philadelphia, where they shall receive two dollars each,(L) for every day employed in the duties required of him by law, in conducting the general, special or township elections, to be paid by the treasurer of the proper county, on orders to be drawn upon him by the commissioners; which allowance shall be in full for his services and expenses other than the mileage 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 com- missioners of any county. Ibid. § 92. Ty all township elections of this commonwealth, for judges of the general and township elections, where a tie shall exist’ in the said election for judges, the in- spector who shall have the highest number of votes, in said election, shall appoint a judge for that purpose Act 4 March 1842, § 84. Purd. 371. ELECTIONS. II. Duties oF THE ASSESSORS. The commissioners of every county within this commonwealth shall, 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 alphabetical order.(c) Act 13 June 1840, § 3. Purd: 371. The assessors of the several wards, townships, incorporated districts and boroughs within this commonwealth, shall, on the receipt of the transcripts aforesaid, pro- ceed forthwith to make from the said transcript not less than two copies of alpha- betical lists,(d) aud 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 boroughs ; and said assessors shall, on or before the 20th day of August, in each year, post up said copies at as many of the most public places within their respect- ive wards, townships, districts and boroughs: one of which shall be at the place of holding 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 ‘hhold- ing such election. Ibid. § 4. 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 eack year,(e) on the personal application of any person as aforesaid, claiming to be assessed within 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 (a) It bas been ruled by the court of com- mon pleas of Philadelphia county, that the offices: of inspector and judge are annual offices, and, therefore, that the election officers elected in the city of Philadelphia, at the general election, on the second Tuesday of October, are to hold the presidential election in the same year, whilst in the county, that election is to be held by the officers chosen on the third Friday of March. Anon. 16 October 1852. MS. Where an act of assembly, dividing an election district, appointed election officers for the ensuing October election; held, that they were invested with all the powers of officers chosen by the people, and, conse- quently, were competent to conduct the pre- sidential election in the same year. Penn District Election Case, 1 Wh. Dig. 704, pl. 12. (5) Increased to five dollars, by act 18 April 1858, 214. P. L. 824. And see act 25 Janu- ary 1853, 3 1, as to Carbon county. P. L. 8. (c) See act 16 April 1857, 21, as to the list of taxables in Philadelphia. Purd. 393. (d) See Purd. 392-8, pl. 191, 195, as to the mode of making out the lists of taxables in Philadelphia. (e) See act 2 February 1854, 3 17, as to the extra assessments in Philadelphia. Purd. 892. ELECTIONS. 305 of such person upon the said lists in their office or possession ;(a) and the said assessors shall, in the form aforesaid, make out duplicate copies of said list of names and surnames of the white freemen and qualified voters residing within their 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 shall file the same in their office ; the other the said assessors shall hold and hand over, without altera- 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, in each year: Provided, That where any ward, township, incorporated district or borough, has heen, 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 hereinbefore 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. Ibid. § 5. It shall be the duty of said assessors respectively, on entering the names of per- sons 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 cer- tificate 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. Ibid. § 6. The respective assessors shall be paid for the various duties required by this act, and the act to which this is a supplement, such sum as the commissioners 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. Ibid. § 12. If any officer or officers required to perform any duty by the provisions of this act, shak neglect or refuse to perform the same, he or they so offending shall be considered and adjudged guilty of a misdemeanor in office, and shall, on conviction, be fined in any sum not less than twenty nor more than two hundred dollars, and where the duties required of any officer herein named are the same as those required by the provisions of the act to which this is a supplement, the penalties inflicted by said act, for violation of such duty, be and the same are hereby extended to the duty herein required. Ibid. § 15. = 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 or 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 resides, and is entitled to vote.(b) Act 2 July 1839, § 59. Purd. 372. It shall not be lawful for any county treasurer, county commissioner or commis- sioners, or any collector of taxes, in any township, ward 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 assess- ment made according to law; nor shall any such treasurer, or commissioner, 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 (a) See Purd. 392-8, pl. 192, 195, astotheir Tioga, Susquehanna, Wayne, Montgomery duties in Philadelphia. and Clinton counties, by act 9 April 1844, () Repealed as to Bradford, Wyoming, P. L. 220. 20 306 ELECTIONS. appear in his own proper person, and tender payment of the taxes from which he had been so exonerated; and it shall not be lawful for any commissioner or com- missioners 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 of taxables made or furnished by the assessor or assistant assessor of any township, ward or district; and if any such treasurer, commissioner, commissioners or collector, or other person on his or their behalf, shall violate 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 to the commonwealth, and shall moreover be forthwith removed from office ; and the vacancy thereby occasioned in either of said offices shall be filled or sup- plied as in other cases of vacancies in such office. Act 27 May 1841, § 8. Purd 372. III. OF THE GENERAL ELECTION. It shall be the duty of the sheriff of every county to give notice of the genera 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: I. Enumerate the officers to be elected. / IL. Designate the place at which the election is to be held. III. He shall give notice that every person, excepting justices of the peace, who shall hold any office or appointment of profit or trust under the government of the United States, or of this state, or of any city or incorporated district, whether a 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 coun- cil of any city, or commissioners of any incorporated district, is by law incapable of holding or exercising, at the same time, the office or appointment of judge, inspeetor 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.(a) Act 2 July 1839, § 18. Purd. 372. The 13th section of the act, passed 2d July 1839, entitled ‘an act relating to the elections of this commonwealth,” shall not beso construed as to prevent any militia officer or borough officer from serving as. judge, inspector or clerk, at any general or special election, in this commonwealth.(6) Act 16 April 1840, § 4. Purd. 373. All persons acting as judges and inspectors of the general election in the city and county of Philadelphia may be re-elected, any law to the contrary notwithstanding. Act 28 April 1851, § 6. Purd. 373. The inspectors and judges, chosen as aforesaid, shall meet at the respective places appointed for holding the election in the district to which they respectively belong, before nine o’clock in the morning of the second Tuesday of October, in each and every year; and each of said inspectors shall appoint one clerk,(c) who shall be a qualified voter of such district. Act 2 July 1839, § 15. Purd. 878. 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 ;(d) and in case the person elected (a) While no candidate can be an officer at an election, and the election as to him may be set aside on that account, yet it will not affect the election of other candidates for different offices, where there is no chargé of fraud or other improper conduct. 2 P. 508. (6) A candidate for a township office, or for judge, or inspector of elections, is competent to act as judge or inspector of his own elec- tion. Case of Passyunk township, Com. Pleas, Phila., December 1847. MS. And by act 18 June 1840, 3 2, a judge, inspector or clerk may be voted for to fill any township office. Purd, 385. : (c) The clerk, when appointed, is an annual officer, and the inspector cannot remove him, except for some disqualifying cause. Anon. Com. Pleas, Phila. March 1852. MS. (2) A person appointed to fill a vacancy in the office of inspector, in place of the one ELECTIONS. 307 a judge shall not attend, then the inspector who received the highest number of votes shall appoint a judge in his place ;(a) and if any vacancy (5) 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, ward 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. Ibid. § 16. In case any clerk, appointed under the provisions of this act, shall neglect to attend at any election during said year, it shall be the duty of the inspector who appointed said clerk (or of the person filling the place of such par eer et to forth- with appoint a suitable person as clerk, qualified as aforesaid, who shall perform said duties for the year. Ibid. § 17. The inspectors, judges and clerks aforesaid, shall, before entering on the duties of their offices, severally take and subscribe the oath or affirmation hereinafter directed,(c) 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 elec- tion shall administer the oath or affirmation to the other judge and inspector, and cig the inspector so qualified shall administer the oath or affirmation to him. Ibid. 18. The inspectors, judge and clerks, required by law to hold township and general elections, shall take and subscribe the several oaths and affirmations, required by the 19th, 20th and 21st sections of the act of the 2d day of July 1839, 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 18th and 22d sections of said act; and in addition to the power conferred by the 18th section of said act, the judge, or either of the inspectors, shall have power to administer the oaths prescribed by said act, to any clerk of a general, special or township election. _ Act 13 June 1840, § 3. Purd. 373. 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 elec- tion 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, accord- ing to the provisions of the constitution and the laws of this commonwealth, entitled to vote at such election, without requiring such evidence of the right to vote as is directed by law, nor will I vexatiously delay or refuse to receive any vote from any person who I shall believe to be entitled to vote as aforesaid, but that I will in all things truly, impartially and faithfully perform my duty therein, to the best of my judgment and abilities ; and that I am not directly, nor indirectly, interested in any bet or wager on the result of this election.” Act 2 July 1839, § 19. Purd. 378. 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 elected by the people, and who failed to appear and act at a general election, holds the office only pro hac vice, and is not entitled to act at a succeeding election at which the regularly elected inspector appears and claims his seat. Case of Penn District Election, Com. Pleas, Phila. 11 May 1850. MS. 4 Seld. 68, 88. The contrary doctrine, however, is held by the present court, who have ruled that wu person so appointed is entitled to act for the whole year. Anon., Com. Pleas, March 1852. MS. (a) Where an election judge appointed a person inspector in the place of the one who received the highest number of votes, he being absent, and the judge subsequently removed from the ward; held, that the inspector so appointed had power to make an appointment to fill the vacancy in the office of judge. Penn District Election Case, 1 Wh. Dig. 705, pl. 22. (5) Upon the division of an election district, the functions of the election officers are destroyed, and cannot be exercised in either of the new election districts into which the old one is divided. The official functions of local officers fall with the political annihilation of the locality for which they were chosen or appointed. Penn District Election Case, 1 Wh. Dig. 704, pl. 11. 88. & R. 121. (c) Where one of the clerks, by intoxication, was unable to continue his labors, and another person was called to act in his place, but was not sworn, and continued to officiate until the regular clerk was able to resume his duties, the court refused to set an election agide on that ground, there being no allegation of fraud or mistake in conducting the election. 2 P. 508. It is a general rule of elections that mere irregularities which do not tend to affect results, are not to defeat the will of the majority. But where the law has prescribed a time and place of election, and designated the officers who are to conduct it, a majority may not set up other officers and hold a separate election. 8 H. 493. 4 Seld. 69. 308 ELECTIONS. thereof, and faithfully assist the inspectors in carrying on the same; that I will not give my consent that any vote or ticket shall be received from any person other than such as I firmly believe to be, according to the provisions of the constitution and laws of this 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 endeavors 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 elec- tion.” Ibid. § 20. i The following shall be the form of the oath or affirmation to be taken by each clerk, viz.: “I (A. B.) dod 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.” Tbid. § 21. It shall be the duty of the said clerks, forthwith to make out two copies of the forms of each of the said oaths or affirmations, which shall be severally subscribed : by each of the inspectors, judges and clerks, and the said oaths or affirmations shall be certified under the hands of the persons by whom they shall be administered. Thid. § 22. IV. MopD& oF CONDUCTING ELECTIONS. 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, hereinafter specified, perform the following duties. Act 13 June 1840, § 7. Purd. 374. At elections, as aforesaid, they shall cause to be delivered to one of the inspectors of every election district, within their respective counties, a sufficient number of boxes to contain the tickets (unless the same has already been provided for said 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. Ibid. At special, electoral and township elections they shall, in addition to the foregoing, deliver to the aforesaid inspectors certified copies, under seal of office, of the dupli- cate copies delivered them to file in their respective offices, by the respective asses- sors of wards, townships, incorporated districts and boroughs within their respective counties, pursuant to the directions and provisions contained in the 5th section (a) of this act; also a sufficient number of blank forms of certificates of election, for each person elected to any office voted for at township elections.(b) Ibid. On the day of meeting of the return judges of elections, within their respective 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 proper man- ner, and headed as the nature of the return may require; also blank forms of certi- ficates of election for each person elected at such election, made out and headed as the case may require. Ibid. Every general and special election shall be opened between the hours of eight a) Supra II. p. 804. F By act 11 March 1852, 317, so much of this section ‘‘as requires county commis- sioners to furnish every election district with a list of the voters residing therein,” is repealed, ‘so far as relates to township elections, in the county of Lancaster, and it shall be the duty of the inspectors to whom such lists are furnished at the general elec- tions, to preserve the same for use at the township elections.” P. L. 129. This provision is extended to the counties of Dauphin and Northumberland, by act 7 May 1855. To the counties ‘of Chester, Delaware, Mont- gomery, Cumberland, Fayette, Adams and Franklin, by act 17 March 1856. To the county of York, by act 16 March 1861, and to the county of Washington, by act 1 May 1861. Purd. 374. ELECTIONS. 309 and ten in the forenoon, and shall continue without interruption or adjournment until seven o’clock in the evening, when the polls shall be closed, except in the city and county of Philadelphia, the polls shall not be closed before ten o’clock in the evening.(a) Act 2 July 1839, § 61. Purd. 374. 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 ae may readily find the inspectors to whom their tickets are to be delivered. Ibid. § 62. Every inspector and judge of an election shall have full power and authority to administer oaths or affirmations to any and all persons requiring or offering 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 inspector or judge, have the same power to administer oaths or affirmations required or authorized to be administered 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 administered by a justice of the peace. Act 13 June 1840, § 14. Purd. 374. 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 qualifica- tions 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. Act 2 July 1839, § 6. Purd. 375. No inspector shall receive any ticket from any person other than an elector resid- ing within the township, ward or district, for which such inspector shall have been elected or appointed. Ibid. § 68. Every voter may deliver written or printed tickets as he shall see cause, but each ticket shall be 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,(b) 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 sena- tors; in one other ticket the name or names of a member or members of the house of representatives, and thus with respect to other officers as the case may be.(c) Ibid. § 69. _ 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 list, 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 naturalized, 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. Ibid. § 70. All tickets folded and indorsed as aforesaid, and personally delivered by the voter and none other, shall, by the respective inspectors,(d) be deposited in separate boxes, (a) See ante p. 303, notes a and 3. (6) A ticket containing on the outside the words ‘‘prothonotary, register, recorder, &c.,” sufficiently designates all the various offices which are filled, in the county, by the same person. 3 P. L. J. 160. So a ticket having on the outside the words ‘ prothono- tary and clerk of the several courts of Luzerne county,” is sufficient for that purpose. 3 P. L. J. 155. (c) Where there are more names on the ticket than there ought to be, it is ground for rejecting the votes that contain such names, even if the other names were properly voted for. 2 P. 534. (d) A thoughtless, inconsiderate interfer- ence with the tickets, by a.third person, who came into the election room, there being no pretended allegation of fraud, was held, not sufficient ground to set aside the election, 2 P. 503. 310 ELECTIONS. according to the office designated on the back of the ticket, and shall there remain until the poll be closed. Ibid. § 71. The qualified electors of the city and county of Philadelphia shall vote for governor, senators, and members of the house of representatives, and members of congress, by delivering to the proper officer, one written or printed ticket, containing on the inside the designation of such officer respectively, and immediately below the desig- nation of the office, the name of the person or persons voted for to fill the office; the ticket shall be so folded as to conceal the names of the persons voted for, and on the outside fold shall be written or printed the words “state officers :”” and the said electors shall vote for county officers, that is to say, for sheriff, county treasurer, auditor, county commissioners, prothonotary of the district court, clerk of the court of oyer and terminer and general quarter sessions, clerk of the orphans’ court, pro- thonotary of the court of common pleas, register of wills and recorder of deeds, by delivering one ticket, written or printed, and folded as aforesaid, which ticket shall contain on the inside the designation of said county offices, and the names of the person or persons voted for to fill them, in the manner above directed in regard to state officers, anc on the outside fold of said tickets, shall be written or printed the words, “ county officers.”(a) Act 7 March 1843, § 28. Purd. 394. It shall be lawful for the qualified voters of the counties of Adams, [Dauphin, Lancaster,] York, Franklin, Cumberland, [Bradford,] Centre, [Greene and Erie,] from and after the passage of this act, to vote for all candidates for the various offices to be filled at any election on one slip or ticket: Provided, The office for which every candidate is voted for shall be designated, as required by the existing laws of this commonwealth.(b) Act 27 February 1849, § 1. Purd. 398. V. OF THE QUALIFIED ELECTORS. 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 shall have resided in this state(c) 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 been assessed (¢) at least ten days before the election. 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 -(a) Judicial officers are voted for by a 1852, P. L. 39, to the counties of Delaware, separate ticket. And at municipal elections, all city officers are to be voted on one ticket, - headed ‘‘city officers ;” all ward officers on one ticket, headed ‘ward officers;” and all election division officers on one ticket, headed “division officers.” Purd. 394, By act 6 May 1854, the voters of Lancaster county are to vote by tickets headed respectively ‘state officers” and ‘‘ county officers.” Purd. 398. By act 19 March 1856, a similar law is enacted for Montgomery county. By act 8 November 1855, for Northampton county. By act 8 April 1857, for Wayne county. And by act 14 March 1860, for Somerset county. Purd. 398. (6) By act 9 April 1849, P. L. 509, vae pro- visions of this act are extended to the coun- ties of Mifflin, Union, [Crawford,] Bedford, Monroe, [Warren and Northumberland,] so far as relates to voting at the general elections; by act 2 April 1850, P. L. 331, its provisions are extended to the county of Bedford, so far as relates to general, special and borough or township elections; by act 11 March 1851, P. L. 158, to the county of Perry; by act 12 April 1851, P. L. 450, to the general elections in the county of Berks; by act 12 April 1851, P. L. 469, to the township of Lower Chichester, in the county of Delaware; by act 6 February Carbon and Lehigh, except as to elections for judges; and by act 29 April 1852, P. L. 481, to the county of Lebanon, so far as relates to general and special elections. By act 8 May 1854, P. L. 652, it is fepealed as to Dauphin county; by act 29 March 1851, P. L. 275, as to the county of Bradford; by act 6 February 1852, P. L. 39, as to the counties of Erie, Craw- ford and Warren; by act 7 April 1853, P. L. 840, as to the county of Greene; by act 12 April 1858, 38, P. L. 376, as to the. county of Northumberland, and by act 6 May 1854, as to the county of Lancaster. Purd. 398, (c) The party must not only have actually resided in the state one year before tendering his vote, but such residence must have been with the intent to become a citizen of this state, and to abandon the citizenship the party may have previously had in another state. Anon., Com. Pleas, Phila., 3 November 1848. MS. See 2 P. A. D. 450. 1 Ash. 126. 1 Wall. Jv. 217. 25. 865. 8 P. L. J. 310. (4) The term ‘election district,” signifies any part of a city or county having fixed boundaries within which the citizens residing therein must vote. 8 P. L. J. 310. (e) The tax must have been personally assessed upon the voter. 2S. & R. 267. ELEOQTIONS. 811 in this state six months: Provided, That the white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in this state one year, and in the.election district ten days, as aforesaid, shall be nee to vote, although they shall not have paid taxes. Act 2 July 1839, § 63. urd. 375. _ Every person claiming a right to vote at any election, as aforesaid; shall, if required by. either of the inspectors, make proof: 1. That he is a natural born citizen of this commonwealth, or 2. That he was settled therein on the 28th of September 1776, and has since continued to reside therein, or 3. That having been a foreigner, who since that time came to settle therein, he took an oath or affirmation of allegiance to the same on or before the 26th of March Anno Domini 1790, agreeably to the then existing constitution and laws; and as evidence of any of the said facts, the oath or affirmation of such person shall be sufficient, or 4. 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 26th day of March 1790; and as evidence thereof, he shall, if required by any judge or inspector of the election, produce a certificate in due form from some judge, pro- thonotary, clerk of a court, mayor, alderman or justice of the peace, or shall be examined on his oath or affirmation, or 5. 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 certificate thereof, under the seal of the court where such naturalization took place ; (a) except where such person shall have resided in said ward, district or township, for ten years or upwards next preceding such application to vote, in which case the oath of such applicant shall be prima facie evidence of naturalization. Ibid. § 64. No person shall be admitted to vote whose name is not contained in the list of taxable inhabitants furnished by the commissioners, as aforesaid, unless, lst: He produce a receipt for the payment within two years of a state or county tux, 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 tax, or on failure to produce a receipt, shall make oath to the payment thereof, or, 2d: If he claim a right to vote by being an elector between the ages of twenty-one and twenty- two years, he shall depose, on oath or affirmation, that he has resided in the state at least one year next before his application, and make such proof of residence in the district as is required by this act, and that he does verily believe from the accounts given him that ke is of the age aforesaid, and give such other evidence as is required by this act; whereupon the name of the person so admitted to vote shall be inserted in the alphabetical list by the 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 like notes in the list of the voters kept by them. Ibid. § 65. 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,(b) 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,(c) and shall also himself swear that (a) Where the naturalization results from should be rejected. Anon., Com. Pleas, Phila, ‘that of the parent, the certificate -f the latter must be produced. 13 Leg. Int. 140. (6) The election officers are concluded by the answers of the party offering to vote, as to his residence in the state; but they have the right to obtain from him full answers upon the question, and if not satisfactory, the vote 3 November 1848. MS. (c) If the name of one offering to vote is not found on the assessor’s list, it is the duty of the inspectors to demand proof, by at least one competent witness, who is a qualified voter, that he has resided in the district for more than ten days. 2 P. 558, 580-1. An 812 ELECTIONS. his bond fide residence, in pursuance of his lawful calling, is within the district, and that he did no: remove into said district for the purpose of voting therein. Ibid. § 66. ' iors 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. Ibid. § 67. : Any person who may be constitutionally qualified to vote in any city or county of thig commonwealth, but who may have removed from one ward to another ward within such city, or from any borough or township in any such county, to any borough or township in such county, within ten days next preceding any general election held therein, shall be entitled to vote at such general election in the ward, borough or township from which such person may have so removed. Resolution 26 April 1844. Purd. 376. é VI. DuTIEs OF PEACE OFFICERS. It shall be the duty of every mayor, sheriff, deputy-sheriff, alderman, justice of the peace and constable or deputy-constable, of every city, county and township or district within this commonwealth, whenever called upon by any. officer of an election, or by any three qualified electors thereof, to clear any window, or avenue to any win- dow, at the place of the general election, which shall be obstructed in such a way as to prevent voters from approaching the same ;(a) and on neglect or refusal to do on such requisition, said officer shall be deemed guilty of a misdemeanor in office, and on conviction, shall be fined in any sum not less than one hundred nor more than one thousand dollars; and it shall be the duty of the respective constables of each ward, district or township within this commonwealth, to be present in person or by deputy, at the place of holding such elections in said ward, district or town- ship, for the purpose of preserving the peace, as aforesaid. Act 2 July 1839, § 111. Purd. 376. 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. Ibid. § 112. If it shall be made appear to any court of quarter sessions of this common- wealth, that any riot or disturbance occurred at the time and place of holding any election under this act, and the constables who are enjoined by law to attend at such 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 neglecting the duty aforesaid; to be proceeded against by indictment for a misdemeanor in office, and on conviction thereof, the said officer shall be fined in any sum not exceeding one hundred dollars. Ibid. § 118. Ii 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 examined on oath, as to whether any breaches of the peace took place at the election within their respective nships, wards or districts ; and it shall be the duty of said constables respectively to make return thereof as part of their official return at said court. Ibid. § 114. VII. OF THE CLOSING OF THE POLLS. 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 care- action cannot be maintained against: an measures; but having given this notice, he inspector for refusing a vote, unless on proof has the right to use as much force as may be of malice. 118. & R. 85. 2 Cr. 0. C. 44. 40 necessary to accomplish the object, and every Eng. L. & Eq. 89. citizen who is called on to assist him is bound (a) In discharging this duty, the officer todoso. Com. »v. Hamilton, Lancaster Q. 8. ought to give notice to the people to remove 22 January 1849. MS. : themselves, before proceeding to violent ELECTIONS. 313 ‘ fully 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. Act 2 July 1889, § 72. Purd. 377. 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; (a) 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 containing fewer names than the proper number. Ibid. § 73. As soon as the election shall be finished, the tickets, list of taxables, one of the lists of voters, the tally papers, and one of the certificates of the oath or affirma- tion, taken and subscribed by the inspectors, judges and clerks, shall all be care- fully collected and deposited in one or more of the ballot-boxes, and such box or boxes, being closely bound round with tape, shall be sealed by the inspectors and the judge of the 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 ;(4) and the other list of voters, tally papers and certificates, shall be inclosed by the said inspectors and judge in a sealed cover, directed to the prothonotary of the court of common pleas of the county, and shall by some one of them be delivered into his office within three days thereafter, where the same shall be filed. Ibid. § 74. As soon as all the votes given for any office shall be read off 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 cer- tificate under their hands and seals, setting forth in words at length, the number of votes given for the several persons voted for, and distinguishing the office or station in respect to which the votes were given. Ibid. § 75. 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 county, at the court-house of the 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 certificate and perform the duties required of said judge: Provided, That if the third day after the election shall be Sunday, the meeting shall be held on the Monday next following. Ibid. § 76. 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 76th scc- tion 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, distinguishing 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 78th section of this acti bid. § 77. VIII. MEETING AND DUTIES OF THE RETURN JUDGES. 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 fidelity; and on the board being so formed, it shall be the duty of the several return judges to deliver (a) It has been held in New York that forbids inserting in the same ballot more than ballots for a state officer, containing, in addi- one name for the same office. 4 Seld. 68, 85. tion to the names of the candidates for state (4) See act 1 May 1861, as to the disposition offices, a vote for county judge, should be of jhe ballot-boxes, &c., in Philadelphia. counted for the state officer. Their statute Pufd. 396. 814 " BLECTIONS, 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 full 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. Act 2 July 1839, ; 78. Purd. 377. . The clerks shall, thereupon, in presence of the judges, make out returns in the manner hereinafter directed, which shall be signed by all the judges present, and attested by said clerks; and it shall not be lawful for said judges or clerks, in casting up the votes which shall appear to have been given, as shown by the cer- tificates under the 76th and 77th sections of this act, to omit or reject any part thereof, except where, in the opinion of said judges, such certificate is so defective as to prevent the same from being understood, and computed in adding together the number of votes; in which case, it shall be the duty of said clerks to make 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 common- wealth, 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 secre- tary as aforesaid. 1. Duplicate returns of all the votes given for every person and persons, who shall have been voted for, for any office or station, which the electors of the county are entitled to choose of themselves, unconnected with any other county or district. 2. Like returns of all the votes given in the county, for every person voted for as governor. 8. 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. Ibid. § 79. 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 pro- thonotary 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. : 1. In the 'case of a governor, the remaining duplicate shall be inclosed in an envelope, directed to the speaker of the senate, and indorsed according to the fact, which having been sealed, shall be inclosed in another envelope, sealed and directed to the secretary of the commonwealth, and the same shall forthwith be placed, by the said president, in the nearest post office. ee 2. In case of electors of president and vice-president of the United States, and of members of the house of representatives of the United States, and of county officers to be commissioned by the governor, the remaining duplicate shall be inclosed in an envelope, sealed and directed to the secretary of the commonwealth, and in like manner placed, by the said president, in the nearest post office. 3. In ease of the election of a senator or senators of this commonwealth, the same shall be inclosed in an envelope, sealed and directed “ to the senate of Penn- sylvania ;’’ and in case of the election of a member or members of the house of representatives of this commonwealth, the same shall, in like manner, be inclosed in an envelope, sealed and directed “to the house of representatives of Pennsyl- vania,” and each of said returns shall be inclosed in an envelope, and directed to the secretary of the commonwealth, and in like manner placed, by said president, in the nearest post office. Ibid. § 80. In cases of election of county commissioners and county auditors, one copy of the return of elec&on shall * inclosed in an envelope, sealed and directed “to the commissioners” of the prope: county. Act 18 June 1840, § 8. Purd. 378. When two or more counties shall compose a district for the choice of a member or members of the senate of this commonwealth, or of the house of representatives of the United States, or of this commonwealth, the judges of the election, in each ELECTIONS. as county, having met, as aforesaid, the clerks shall make out a fair statement of aD) the votes which shall have been given at such eiection, withia 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 chargo of such certificate, and shall produce the same at a meeting of one yudge 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. Act 2 July 1839, § 81. Purd. 378. 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 prothonotary of the court of common pleas of the county in which they shall meet, and the other shall be by said judges deposited in the nearest post office, sealed and directed to the secretary of the commonwealth, in the manner directed in parts two and three of the eighteenth section of this act. Ibid. § 82. Tt 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. Ibid. § 83. 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 travelled in going to the place appointed by law for the meeting of return judges, and in returning thence to his own house. Ibid. § 94. It shall be the duty of the prothonotary of every county to whom the return of any election shall be delivered 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 secretary of the com- monwealth, by placing the same in the nearest post office. It shail 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 quarter sessions of such county. Ibid. § 84. It shall also be the duty of every prothonotary to give a certified copy of the list of voters and other papers deposited in his office by the judges of an election, to any per- son applying for the same, on payment of the usual fees as in other cases. Ibid. § 85. IX. TowNsHIP ELECTIONS. The constable or constables of every township within this commonwealth, shall give public notice of the township elections, by ten or more printed or written advertisements, affixed at as many of the most public places therein, at least ten days before the election, and in every such advertisement they shall enumerate, designate and give notice as sheriffs of counties in cases of general elections are directed; by the 1st and 2d divisions of the 13th section (a) of the act to which this is a supplement; and in case of the heglect, 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’ notice; and said elections shall be held and conducted under the regulations, not inconsistent herewith, prescribed in the aforesaid act;(b) but nothing in this act, or in the act to which this is a supplement contained, shall be construed to pro- hibit a judge, inspector or clerk of election from being voted for to fill any town- ship office, or render either or any of them ineligible to hold the same. Act 13 June 1840, § 2. Purd. 385. The election for the said township officers shall be held during the same hours, and by the persons appointed to hold the election of inspectors and assessors, on the third Friday in March of every year; except in the counties of Bradford, Sus- quehanna, Potter, McKean, Clearfield Lycoming, Wayne and Pike, the township (5) See supra III. : shall vote for their township officers on one (3 By act 8 March 1859, ‘the electors of ticket, P. L. 116. Wayne county at their township elections, 316 ELECTIONS. elections of which shall be held on the third Friday in February of every year.(a) Act 2 July 1839, § 58. Purd. 385. ; Tt 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 y him delivered to the said officer or left at his usual place of abode within six days thereafter. Ibid. § 54. The clerk of the court of quarter sessions of every county within this common- wealth shall, within fifteen days after the township elections, in each year, are returned into his office, (to) make out, certify and deliver under his hand and seal of office, to the commissioners of his proper county, a list of the names of the . 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. Act 13 June 1840, § 9. Purd. 385. Every judge as aforesaid, shall be ‘allowed six cents per mile, for each mile neces- sarily 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 com- puted circular, and paid out of the county treasury, on orders drawn by the com- missioners 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. Ibid. § 10. Constables, supervisors or assessors, as the case may be, of any ward, township, incorporated district or borough, shall be allowed and paid out of the county trea- sury, two dollars for advertising ward, township, district and borough elections ; said constables shall also be allowed and paid, as aforesaid, twenty cents for deli- vering to each township officer a certificate of his election, as directed by this act, and the act to which this is a supplement. Ibid. § 11. When any new township shall be erected in any county of this commonwealth, it shall be lawful for the court of quarter sessions of the proper county to author- ize 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 5 April 1849, § 32. Purd. 385. Whenever it shall become necessary for the citizens of any township in any of the counties of this commonwealth, which has been or shall be divided in any way in forming any election district or districts, to elect justices of the peace, judges and inspectors of elections, assessors, constables, school directors or other township officers, in pursuance of any act or acts of assembly, the qualified voters of such township shall meet at the usual place of holding their annual township elections respectively, and shall then and there proceed to elect such officers in the manner now provided for by law, and the returns of such elections shall be made out in the same manner as is now provided for by the laws of this commonwealth; and such township election so held in any township which may be divided as aforesaid, shall be held and conducted only by the judge, inspectors and clerks residing in the district where the place of holding the township election is or may be located, any law to the contrary notwithstanding : Provided, That whenever a vacancy hap- pens 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. Act 7 March 1840,§ 27. Purd 885. It shall be the duty of the judge and inspectors holding and conducting such township election to keep as many separate boxes and separate lists of voters for judges and inspectors of elections as there are election districts or parts of election districts in such township respectively, in which they shall deposit the votes of the citizens residing within the limits of such district or parts.of districts for judges and inspectors of the general elections in their particular districts, and the returns (2) In Tioga county, on the Friday preced- county, on the fourth Friday in February, by ing the first Monday in February, by act 18 act 28 January 1858. And in Forest county April 1858. In Armstrong county, on the on the first Monday in February, by act 26 Friday next preceding the first Monday in January 1859. Purd. 385. March, by act 18 April 1856. In Clinton ELECTIONS. 317 thereof shall be made out and certified in conformity with the provisions of the act of the 2d July, Anno Domini 1839, entitled “An act relating to the elections of this commonwealth ;” and in cases where part only of the township forms in con- nection with other parts of other townships a general election district, the judge holding such township election shall mect the judge or judges from the other town- ship or townships, forming part of such general election district, at the place of holding the general election, and the said judges shall then and there proceed to make out a general return from their respective returns, which shall be signed, ertified and returned with their several returns in like manner as is now provided for by law. Ibid. § 28. It shall be lawful for the electors of any township, ward or district, to change the place for holding the elections for inspectors and other officers of such township, ward or district in the manner following, to wit: 1. On the requisition in writing of at least thirty of the electors of the township, ward or district, in case there are one hundred or more taxables in said township, 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 expediency of changing the place of holding such elections. : 2. If at least fifty electors of said 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 constable 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, voting 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. Act 2 July 1839, § 56. Purd. 386. Upon the petition of one-third of the qualified voters of any election district of this commonwealth, presented to the court of quarter sessions of the proper city or county for the purpose, it shall be lawful for such court to order an election in such election district upon the question of the location or change of the place of holding the general, special and township elections for such district, subject to all the pro- visions not inconsistent herewith of the 56th section of the act of the second of July, Anno Domini 1839, entitled ‘An act relating to the elections of this com- monwealth,” and the elections directed by said section shall be conducted by the officers of the last preceding general election, who shall conduct the same, in the same manner in which the general elections are by law required to be held and con- ducted, with the same penalties and punishments for frauds or misconduct in officers, persons offering to vote or others as is prescribed by said act and its supplements ; and in case of the absence or inability of any such officer to serve, the vacancy or vacancies shall be filled in the same manner described by said acts. Act 20 April 1854, § 1. Purd. 386. The courts of quarter sessions shall have authority within their respective counties, to divide any borough, ward or township into two or morc election districts, to alter the bounds of any election district, or to form an election district out of parts of two or more adjoining townships, so as to suit the convenience of the inhabitants thereof, and to fix the place of holding elections and appoint the election officers pursuant to the provisions of section 2d of this act:(a) Provided, That no district so formed, (a) The act 81 January 1855, provides that in all cases in which new townships, boroughs or election districts shall be erected, or the bounds of any election district changed under the provisions of the act ; the court of quarter sessions erecting or changing the same, shall fix the places for holding the elections, which shall continue to be the place for holding elections until the same shall be changed according to the provisions of this act; and the said courts shall also appoint the officers for holding the first election in any township, oe or election district so erected. Purd. 387. $18 ELECTIONS. shall contain less than one hundred voters, and the proceedings had in the case of such division or alteration shall be the same as in the erection or alteration of the lines of townships. Ibid. § 2. o The judge, inspectors and clerks of each election district of any borough, ward or township in the counties of this commonwealth, which shall have been divided by the court into separate election districts, under the provisions of the act of 20th April 1824, shall make out a complete return of all the votes given at any borough, ward or township election, designating the number of votes each person received ; and the judge and inspectors shall appoint one of their number for return judge, to meet the other return judge or judges of the said borough, ward or township in said county, at the oldest election place, on the third day after any borough, ward or township election, and then add together the number of votes given for each person voted for, and make out the returns, as the nature of the election may require. com- plying in all respects with the provisions of existing election laws; and after the performance of said duties, appoint one of their number, by consent or lot, to deliver the full returns to the court of quarter sessions of said county, in the same manner now provided by law, for making township returns: Provided, The provisions of this act shall not affect any existing election law relative to the city of Philadelphia, city of Pittsburgh and Erie. Act 2 April 1860, § 1. Purd. 387. X. CONTESTED ELECTIONS. The several courts of quarter sessions(a) shall have jurisdiction to hear and determine all cases in which the election of any county or township officer, (b) by the citizens in the respective county, may be contested.(c) Act 2 July 1839, § 153. Purd. 392. , Upon the petition in writing of(d) at least twenty qualified electors of the proper county or township, as the case may be, complaining of an undue election (e) or false return of any such officer, the court shall appoint a suitable time for hearing such complaint, notice of which shall be given to the person returned at least ten days before such hearing: Provided, That no order shall be taken on such petition, unless it be accompanied by the oath or affirmation of at least two(g) of such petitioners, setting forth that the facts therein stated are true, to the best of their knowledge and belief. Ibid. § 154. The respective courts of quarter sessions shall have authority to compel the attendance of any officer of such election, and of any other person capable of testify- ing concerning the same, and also to compel the production of all books, papers,(h) 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 such (a) The jurisdiction to determine contested elections of prothonotaries, &¢., is given to the common pleas, by act 2 July 1839. Purd. 817. And of justices of the peace by act 18 June 1840. Purd. 590. (4) This does not give them power to decide on contested elections of inspectors and judges. Scranton Borough Election, Q. 8. Luzerne county, 15 May 1858. MS. (c) The court is to decide whether there be a vacancy in the office. 6 W. & S»209. But they have no power to order a new election. '¢.P LJ. 3°0. The party having the next highest number of votes, and who is contesting the right of the officer elect, has no power to discontinue the proceedings. Cassidy’s Case, Q. S. Phila., 16 May 1857. MS. (d) It is not a compliance with the act to procure the signatures of twenty qualified electors, previous to drawing up the com- plaint, for the purpose of being thereto ap- pended, although the parties gave their signatures for that purpose, authorized them to be so appended, and after the petition was presented, expressed their willingness that their names should stand to the complaint. 1 Phila. R. 446, (e) Unless the petition set forth such facts as would change the result, the court will not entertain it, or order an investigation. 2 P. 505, 509, 587. 2 Phila. R. 203. If it he defective in form or substance, it may be amended. 2 P. 558. 2 Phila. R.199. Ifthe ground be fraud, the petition must state with precision wherein the fraud consists, 2 P. 537. 2 Phila, R. 204. (g) It is not sufficient that it be sworn to el other voters resident in the ward. 2 P. (h) The court will not notice papers filed in the prothonotary’s office, not rendered to, nor made part of the petition and record. 2 P. 687. (é) They will not order the ballot-boxes to be re-counted, without some specific charge or allegation of fraud or mistake, sustained by affidavits. 2 P. 558. (4) They will not direct an issue. 2 P. 553, east ELECTIONS. 319 court, and shall have all the powers which are conferred upon committees of the legislature, by the several provisions of this act. Ibid. § 155. Every person who shall be subpoenaed, and attend or be examined at such hear- ing, 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. Ibid. § 156. If the judges of such court, or a majority of them, shall certify that such com- plaint was without probable cause, the petitioners, and every of them, shall be liable for all the costs of such hearing.(a) Ibid. § 157. In case of contested elections of county officers, the court shall determine.who shall pay the costs, but if the complaint shall be made without probable cause, the petitioners shall pay the costs; and in such cases the county commissioners shall proceed to recover the same by attachment issued by the said court.(b) Act 31 March 1848, § 3. Purd. 392. XI. WaGERS ON ELECTIONS. 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 convic- tion thereof, he or they shall forfeit and pay three times the amount so bet or offered to be bet.(c) Act 2 July 1839, § 115. Purd. 380. It shall be the duty of every judge, sheriff, mayor, alderman, justice of the peace or constable, knowing of any person having offended against the provisions of the 115th section of this act, to commence proceedings against the person so offending ; and it shall be the duty of the grand juries of the respective counties within this commonwealth to make a presentment of all such offences coming within their knowledge. Ibid.§ 116. It shall be the duty of the inspectors and judge of the election to reject the votes of all persons, they, or any of them, shall know, or who shall be proven before them to have made,.or who are in any manner interested in any bet or wager on the result of said election; and on the request of any qualified elector, said in- spectors and judge shall receive proof to show the person so offering to vote has or has not made any such bet or wager, or is or is not interested therein. Ibid. § 117. 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 common- wealth, 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 townships, 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 stakeholder, where said bet is deposited in the hands of a third person; or against the party winning said bet, when the same is not so 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 commonwealth, said guardians, directors or overseers of the poor shall be entitled to recover the amount or value thereof for the use of the poor from said stakeholder, or person winning said bet where there is no stakeholder: Provided, Said suit is brought within two years from the time of making said bet.(d) And the stakeholder is hereby prohibited (a) They are, nevertheless, competent wit- nesses to prove for whom they voted. 2.P. 553. Scranton Borough Election, Q. 8. Luzerne, 15 May 1858. MS. An elector is not bound to disclose for whom he voted. 3 Y. 66. 2 P. 558, 592. But this is the privilege of the voter, and it is one that he may waive, and voluntarily appear and disclose on oath for whom he voted, when he deems it necessary to do so; and there is nothing in the consti- & tution or laws which prohibits his so doing. 2 P.-658. Cl. & Hall 520. An illegal voter Fn disclose for whom he voted. 3 P. L. J. 10. (4) This act only applies to the city of Philadelphia. (@) For form of indictment, see 8 W. 212. (d) On a deposit being made, to secure a bet on an election, the money, eo instanti, vests in the guardians of the poor; and their omis- 320 ELECTIONS. 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 a misdemeanor in office, and on conviction shall be fined in any sum not less than the amount so bet nor more than double the amount. Ibid. § 118. — Wagering or betting on the event of an election, held under the constitution or laws of the United States, or the constitution or laws of this commonwealth, are hereby prohibited, and all contracts or promises founded thereon are declared to be entirely null and void.(a) Act 24 March 1817, § 1. Purd. 380. XII. PENALTIES FOR MISCONDUCT. If the constables or supervisors of any township, ward or district, shall neglect or refuse to perform the duties herein required of him or them, they shall respectively, on conviction, be fined in any sum not less than fifty nor more than one hundred dollars. Act 2 July 1839, § 97. Purd. 381. ; 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. Ibid. § 99. If any inspector, judge or clerk, as aforesaid, shall neglect or refuse to take upon himself the duties of such office, he shall forfeit and pay the sum of fifty dollars, or having entered upon the same shall afterwards neglect or refuse to perform the duties thereof according to law, he shall forfeit-and pay the sum of one hundred dollars for every such offence. Ibid. § 100. If any inspector, judge or clerk of an election, shall presume to act in such capa- city before taking and subscribing the oath required by this act, he shall on convic- tion be fined in any sum not less than fifty, nor more than two hundred dollars. Ibid. § 101. If any inspector, judge or clerk,(b) as aforesaid, shall be convicted of any wilful fraud in the discharge of his duties, as aforesaid, he shall undergo an imprisonment for any term not less than three, nor more than twelve months, and be fined in any sum not less than one hundred dollars, nor more than five hundred dollars, and shall be for seven years thereafter disabled from holding any office of honor, trust or profit in this commonwealth, and shall moreover be disabled for the term aforesaid, from ee his vote at any general or special election within this commonwealth. Ibid. 102. 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 qualified, or con- ceal 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, 4 punished in the manner prescribed in the 107th section (c) of this act. Ibid. 03. sion to sue for it within the time limited by the statute, does not give to either of the wagering parties the right to recover any por- tion of the sum deposited. 38 P. L. J. 388. See 7 W. 294, 348. 3W. & S. 405. 6W. & 8. 485. 2H. 18. 3P.L. J. 413. (a) The act was intended to avoid all bets, paid or unpaid, and to suppress anything connected with the subject; it cannot, there- fore, be eluded by an appended agreement which would give to an actual wager the simi- litude of something else. 7 W. 848. Nor can ingenuity invent any mode of evidencing such a, contract, so that it can be enforced by law. 7 W. 294. And money disposited in the hands of a stakeholder cannot be recovered back. 8 W. & S. 405. 8 P. LJ. 388. But if paid to the winner, a creditor of the loser cannot recover it back by attachment. 6 W. & 8. 485. Money lent in New Jersey, to be bet on the presidential election, may be recovered in Pennsylvania, in the absence of any proof that betting on elections is against the law of New Jersey. 2 H. 18. (4) The inspectors, judges and clerks can- not be joined in the same indictment, where the offences are different, and the duties dis- tinct and separate. 2 P. 480. (c) That is, by a fine of not less than $50, nor more than $200. The 98th, 107th and 109th sections of this act appear to be supplied and repevled by act 13 June 1840, 3 15. ELECTIONS. 821 If any such inspector or judge shall receive the vote of any person whose name shall not be returned ,on the list furnished by the commissioners or assessor, with- out 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 dol- lars. Ibid. § 104. 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 conviction be fined in any sum not less than fifty nor more than one hundred dollars, and imprisoned for any time not less than one nor more than three months. Ibid. § 105. If afiy person shall embezzle or unlawfully deface, alter, change, substitute 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. Ibid. § 106. 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 com- missioners of the proper county; or intentionally neglect or refuse to perform any other duty enjoined on him by the provisions of this act, he shall, on conviction thereof, be fined in any sum not less than fifty nor more than two hundred dollars. Ibid. § 108. If any person shall prevent or attempt to prevent any officer 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, with design (a) 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 not less than one hundred nor more than one thousand dollars, and be imprisoned not less than six months nor more than two years. Ibid. § 110. 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 imprisoned for any term not exceeding three months. Ibid. § 119. If any person shall vote at more than one election district, or otherwise fraudu lently vote more than once on the same day, or shall fraudulently fold and deliver to the inspector two tickets together, with the intent to illegally vote, or shall vote the same, or if any person shall advise and procure another so to do, he or they so. offending, shall, on conviction, be fined in any sum not less than fifty, nor more, than five hundred dollars, and be imprisoned for any term not less than three, nox more than twelve months. Ibid. § 120.. If any person not qualified to vote in this commonwealth, agreeably to law, (except the sons of qualified citizens,) shall appear at any place of election, for the: purpose of issuing tickets or of influencing(6) the citizens qualified to vote, he shall, on conviction, forfeit and pay any sum not exceeding one hundred dollars for every (a) To constitute this offence, there must offence, that the party should have succeeded be a preconceived intention to intimidate the in his endeavors to induce ethers to vote.. officers, or interrupt the election. 3 Y. 429, 3 Y. 65. (4) It is not necessary, to complete the 822 ELECTIONS, such offence, and be imprisoned for any term not exceeding three months. Ibid. 121. ‘ ; 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. Ibid. § 124. If any person shall knowingly publish, utter or make use of any forged or false receipt or certificate, with intent to impose the same upon, or deceive any inspector or judge, at any election as aforesaid, such person shall, on conviction, be fined in any sum not less than fifty, or more than five hundred dollars, and suffer imprisonment not less than six months nor more than two years. Ibid. §.125. If any prothonotary or sheriff shall neglect or refuse to perform any of the duties hereinbefore enjoined upon him, or shall wilfully misbehave in the doing thereof, he shall, on conviction thereof, be fined in any sum not less than one hundred, nor exceeding five hundred dollars, and shall suffer imprisonment for a term not exceed- ing twelve months. Ibid. § 126. If any justice of the peace shall refuse to receive any ballot-box delivered to him, as is hereinbefore provided, or having received the same, shall neglect the safe keeping thereof, he shall, on conviction of any such refusal or neglect, be fined in any sum not less than one hundred, nor more than one thousand dollars. Ibid. § 127. Every specific fine or forfeiture imposed by this act, may be recovered by action of debt, in the name of the commonwealth, as debts of like amount are by law recoverable, or by indictment in the court of quarter sessions of the proper. county; and where the fine and forfeiture is not specific, the proceeding shall be by indict- ment 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. Ibid. § 128. If any officer or officers required to perform any duty by the provisions of this act, shall neglect or refuse to perform the same, he or they so offending, shall be considered and adjudged guilty of a misdemeanor in office, and shall, on conviction, be fined in any sum not less than twenty, nor more than two hundred dollars, and where the duties required of any officer herein named are the same as those required by the provisions of the act to which this is a supplement, the penalties inflicted by said act, for violation of such duty, be, and the same are hereby extended to the duty herein required. Act 13 June 1840, § 15. Purd. 383. If any elector, authorized to vote at any public election, shall directly or indi- rectly accept or receive, from any person, any gift or reward in money, goods or other valuable thing, under an agreement or promise, express or implied, that such elector shall give his vote for any particular candidate or candidates at such election, or shall accept or receive the promise of any person that he shall thereafter receive any gift or reward in money, goods or other valuable thing, any office, appointment or employment, public or private, or any personal or pecuniary advan- tage whatsoever, under such an agreement or promise, express or implied, such elector shall be guilty of a misdemeanor, and shall, on conviction of either of the said offences, be sentenced to pay a fine not exceeding one hundred dollars, and undergo an imprisonment not exceeding six months. Act 31 March 1860, § 50. Pard. 381.. Any person who shall directly or indirectly give, or offer to give, any such gift or reward to any such elector, with the intent to induce him to vote for any particular candidate or candidates at such election, or shall directly or indirectly procure or agree to give any such gift or reward to such elector, with the intent aforesaid, or shall, with the intent to imfluence or intimidate such elector to give his vote for any particular candidate or candidates at such election, give, offer or promise to give such elector, any office, place, appointment or employment, or threaten such elector with dismissal or discharge from any office, place, appointment or employment, public or private, then held by him, in case of his refusal to vote for any particular candidate or candidates at such election, the person so offending shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, 4nd undergo an imprisonment not exceeding two years. Ibid. § 51. EMBEZZLEMENT. 823 XIII. MisckELLANEOUS PROVISIONS. It shall be lawful for the governor of this commonwealth, on the representation of the board of healtlr, or of the municipal authority of any city, borough, town or incorporated district in this commonwealth, that from the prevalence of any malig- nant or contagious disease, in such city, borough, town or district, the lives of the electors may be in danger by attending at the places fixed by law for holding elec- tions within the same, to direct the sheriff of the proper county to give notice that the election for such city, borough, town or district, will be held at such place within the limits, or in the neighborhood of the same, as he, the governor, may judge most safe and convenient, and it shall be the duty of such sheriff to give public notice of such place, in the manner hereinbefore required, at least seven days before the day of election, under the same penalty, as is hereinafter provided. Act 2 July 1889, § 94. Purd. 383. , No body of troops in the army of the United States, or of this commonwealth, shall be present, either armed or unarmed, at any place of election within this com- monwealth, during the time of such election: Provided, That nothing herein con- tained 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 belgng, if otherwise qualified according to law. Ibid. § 95. In all cases where a sheriff is directed to perform any duty by the provisions of this act, and said sheriff is absent from the district, or there is any vacancy in said office, the duty directed to be performed by the sheriff, shall be done and performed by the coroner of the proper county, who shall be entitled to the same fees and subject to like penalties. Ibid. § 96. Embeszlement. Act 31 Marc# 1860. Purd. 228, 237. Szcr. 62. If any officer of this commonwealth, or of any city, borough, county or township thereof, shall ‘loan out, with or without interest or return therefor, any money or valuable security received by him, or which may be in his possession, or under his control by virtue of his office, he shall be guilty of a misdemeanor in office, and on conviction be sentenced to pay a finé not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years; and if still in office, be adjudged thereafter incapable of exercising. the same, and the said office shall be forthwith declared vacant by the court passing the sentence. Szcr. 63. If any such officer shall enter into any contract or agreement with ‘any bank, corporation or individual, or association of individuals, by which said officer is to derive any benefit, gain or advantage from the deposit with such bank, corporation or individual, or association, of any money or valuable security held by him, or which may be in his possession, or under his control by virtue of his said office, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding one year; and if still in office, be adjudged thereafter incapable of exercising the same, and the said office shall be forthwith declared vacant by the court passing sentence. ; Szcr. 65. If any state, county, township or municipal officer of this common- wealth, charged with the collection, safe keeping, transfer or disbursement of public money, shall convert to his own use, in any way whatsoever, or shall use, by way of investment in any kind of property or merchandise, any portion of the public money intrusted to him for collection, safe keeping, transfer or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the state, county or township treasurer, or other proper officer or person author- 324 EMBEZZLEMENT. ized to demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement of so much of said money as shall be thus taken, converted, invested, used or unaccounted for, which is hereby declared a misdemeanor ; and every such officer, and every person or persons whomsoever aiding or abetting, or being in any way accessory to said act, and being thereof convicted, shall be sen= tenced to an imprisonment, by separate or solitary confinement at labor, not exceeding five years, and to pay a fine equal to the amount of the money embezzled. Sxor. 113. If any person, being a trustee of any property for the benefit, either wholly or partially, of some other person, or for any public or charitable purpose shall, with intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purpose, or the use or benefit of any other person, or shall, with intent aforesaid, otherwise dispose of or destroy such property, or any part thereof, he shall be guilty of a misdemeanor. Sror. 114. If any person, being a banker, broker, attorney, merchant or agent, and being intrusted, for safe custody, with the property of any other person, shall, with intent to defraud, sell, negotiate, transfer, pledge or in any manner convert or appropriate to,or for his own use, or the use of any other person, such property, or any part thereof, he shall be guilty of a misdemeanor. Snort. 115. If any person intrusted with any power of attorney, for the sale or transfer of any property, shall fraudulently sell or transfer, or otherwise convert such property, or any part thereof, to his own use or benefit, or the use or benefit of any other person, he shall be guilty of a misdemeanor. Secor. 116. If any person, being an officer, director or member of any bank, or other body corporate or public company, shall fraudulently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such bank, body corporate or company, or belonging to any person or persons, corporation or association, and deposited therein, or in possession thereof, he shall be guilty of a misdemeanor. : Sxcr. 120. If any person shall receive any money, chattel or valuable security, which shall have been so fraudulently disposed of, as to render the party disposing thereof guilty of a misdemeanor, knowing the same to have been so fraudulently disposed of, he shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the party guilty of the principal misdemeanor shall, or shall not, have been previously convicted. Szcr. 121. Every person found guilty of a misdemeanor under either of the preceding sections of this title, wherein the nature and extent of the punishment is not specified, shall be sentenced to an imprisonment not exceeding two years, or be fined in any amount not exceeding one thousand dollars, or both, or either, at the discretion of the court. Sxcr. 122. Nothing herein contained shall affect any remedy at law or in equity, which any party aggrieved might have heretofore had, nor affect or prejudice any agreement entered into, or security given, by any trustee, having for its object the restoration or repayment of any trust property misappropriated. Szor. 123. No such trustee, banker, merchant, broker, attorney, agent, director, officer or member as aforesaid, shall be enabled or entitled to refuse to make a full and complete discovery by answer to any bill in equity, or to answer any question or interrogatory in any civil proceeding in any court of law or equity, but no answer to any such bill, question or interrogatory, shall be admissible in evidence against such person charged with any of the said misdemeanors. Sxor. 124. The-word “ trustee” herein, shall mean a trustee on some express trust created by deed, will or instrument in writing, and shall also include the heir, devisee and personal representative of any such trustee, and all executors, adminis- trators and assignee; the word “ property” shall include every description of real and personal property, money, debts and legacies, and all deeds and instruments relating or evidencing the title or right to recover or receive any money or goods, and shall also include not only such property as may have been the original subject of a trust, but any property in which the same may have been converted, and the proceeds thereof, respectively, or anything acquired by such proceeds. Szcr. 125. If any consignee or factor having the possession of merchandise, EMBEZZLEMENT. 325 with authority to sell the same, or having possession of any bill of lading, permit, certificate, receipt or order for the delivery of merchandise with the like authority, shall deposit, or pledge such merchandise or document, consigned or intrusted to him as aforesaid, as a security for any money borrowed, or negotiable instrument _.Teceived by such consignee or factor, and shall apply or dispose of the same to his ‘own use, in violation of good faith, with intent to defraud the owner of such mer- chandise, and if any consignee or factor shall, with like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument, raised or acquired by the sale, or other disposition of such merchandise, such consignee or factor, in every such case, shall be guilty of a misdemeanor, and be sentenced to pay a fine oe exceeding two thousand dollars, and undergo an imprisonment not exceeding ve years. Sxcr. 126. If any person engaged in carrying or transporting coal, iron, lumber or other articles of merchandise, or property whatsoever, within this commonwealth, shall fraudulently sell or dispose of, or pledge the same or any part thereof, with- out,the consent of the owner thereof, such offence shall be deemed a misdemeanor, and the offender shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, not exceeding one year; or if any person shall knowingly buy and receive the said merchandise, knowing the same to have been sold, disposed of or pledged fraudulently, he shall, on convic- tion, be sentenced to the like punishment. Act 1 May 1861. Purd. 85. Sct. 38. Every president, director, cashier, teller, clerk or agent of any bank who shall embezzle, abstract, or wilfully misapply any of the moneys, funds or credits of such bank, or shall, fraudulently and without authority from the directors, issue or put in circulation any of the notes of such bank, or shall, without such authority, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, sign any note, bond, draft, bill of exchange, mortgage or other instrument of writing, or shall make any false entry on any book, report or statement of the bank, with an intent, in either case, to injure or defraud such bank, or to injure or defraud any other company, body corporate or politic, or any individual person, or to deceive any officer or agent appointed to inspect the affairs of any bank, shall be deemed guilty of a misdemeanor; and upon conviction thereof, shall be confined in the penitentiary, at hard labor, not less than one, nor more than ten years. Act 1 May 1861. Purd. 238. Szcr. 1, Whenever any person in the employ of any railroad company, whether such company is incorporated by this or any other state, shall fraudulently neglect to cancel or return to the proper officer, company or agent, any coupon or other railroad ticket, with the intent to permit the same to be used in fraud or injury of any such’ company; or if any person shall steal or embezzle any such coupon or other railroad ticket, or shall fraudulently stamp or print, or sign any such ticket, or shall fraudulently sell or put in circulation’ any such ticket ; any person so offend- ing, shall, upon conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprionment, by separate or solitary confine- ment, at labor, not exceeding five years. [ 326 J Embracery. | I. Provisions of the Penal Code. IL. Judicial decisions. Aot 31 Marcu 1860. Purd. 219. Secor. 11. If any person shall unlawfully dissuade, hinder, prevent or attempt to dissuade, hinder or prevent any witness from attending and testifying, who may have been required to attend and testify either before any committee of the legis- lature of this state, or before any civil or criminal court, judge, justice or other judicial tribunal thereof, by virtue of any writ of subpoena or other legal process, or who may have been recognised to attend as a witness on behalf of the common- wealth or of any defendant, before any court having jurisdiction, to testify in any case depending or about to be tried in such court, any person so offending shall be guilty of'a misdemeanor, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceed- ing one year. Scr. 13. If any person shall attempt to. corrupt or influence any juror ina criminal or civil court, or any arbitrator appointed according to law, by endeavor- ing, either in conversation or by written communication, or by persuasion, promises or entreaties, or by any other private means, to bias the mind or judgment of such juror or arbitrator, as to any cause pending in the court to which such juror has been summoned, or in which such arbitrator has been appointed or chosen, except by the strength of evidence or the arguments of himself or his counsel during the trial or hearing of the case; he shall be guilty of a misdemeanor, and, on convie- tion, be sentenced to pay a fine not exceeding five hundred dollars, or suffer an imprisonment not exceeding one year, or both, or either, at the discretion of the court. II. Writing a letter to the sheriff, by an agent of a party, in the name of the party, requesting him to summon the agent and two others, all of whom were named, for the trial of the cause, is an indictable offence, although not accompanied with any offer of a bribe. Lewis’ Cr. L. 126. 2 Y. 448. Embracery (which is usually classed under the head of bribery) is an attempt by either party, or a stranger, to corrupt or influence a jury, or to incline them to favor one side, by gifts or promises, threats or persuasions, or by instructing them in the cause, or any other way, except by opening and enforcing the evidence by counsel or otherwise at the trial, whether the jurors gave a verdict or not, and wheter the verdict be true or false. Lewis’ Or. L. 124. 5 Cow. 504. 1 Phila. It is both a criminal misdemeanor and a high contempt in an individual, to com- municate with a grand jury in reference to any matter which is, or may come before them. 3 P. L. J. 442. [ 827 ] Engrossing, JForestalling and Regrating, Enorossina is the purchasing of large quantities of provisions, with intent to sell them again at a high price. 4 Bl. Com. 158. It can be committed only with respect to the necessaries of life. 3 Eng. L. & Hq. 46. And is an offence at com- mon law. 2 Chit. Cr. L. 527. 1 East P. C. 148. ForEsTALLING is the buying or contracting for any species of provisions or mer- chandise on the way to market, or dissuading persons from bringing their goods or provisions there, or persuading them to enhance the price when there; any of which practices make the market dearer to the fair trader. 4 Bl. Com. 158. It is indictable at common law. 2 Chit. Cr. L. 527. y Reeratine is the buying of corn or other dead victual in any market, and sell- ing it again in the same market, or within four miles of the place; for this also enhances the price of the provisions, as each successive seller must have a success- ive profit. Ibid. ‘ The act of 6th April 1802, provides that “It shall and may be lawful for any person or persons to sell or expose to sale provisions, vegetables or fruit, in the mar- kets of any city, borough or corporate town within this commonwealth: Provided always, That such provisions, vegetables or fruit shall not have been previously purchased within the limits of such city, borough or corporate town.” Purd. 697. There is no law which prevents any person buying any quantity of a commodity at any price that he likes, whether to use himself, orto sell again in gross or by retail, or to give away, or to prevent another having it; provided always that he do not commit the common law offence of forestalling, regrating or engrossing, and make no false representation in order to effect the purchase. 3 Eng. L. & Hq. 46. Escape, I. Provisions of the penal code. III. Warrant against a constable for an Il. Judicial decisions. escape. I. Act 31 Marca 1860. Purd. 217. Szcr. 3. If any person arrested and imprisoned, charged with an indictable offence, shall.break prison, or escape, or shall break prison, although no escape be actually made, such person shall be guilty of a misdemeanor, and, on conviction, be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding two years, if the criminal charge on which such person stood com- mitted, was a crime or misdemeanor punishable on conviction, by imprisonment by separate or solitary confinement at labor; or to imprisonment not exceeding one year, if such charge was a crime or misdemeanor punishable on conviction, by simple imprisonment without labor. If any prisoner imprisoned in any penitentiary or jail, upon a conviction for a criminal offence, other than murder in the first degree, or where the sentence is for imprisonment for life, shall break such peni- tentiary or jail, although no escape be actually made by him, such person shall be guilty of a misdemeanor, and, upon conviction of said offence, shall be sentenced to undergo an imprisonment, to commence from the expiration of his original sentence, ‘ of the like nature, and for a period of time not exceeding the original sentence, by virtue of which he was imprisoned, when he so broke prison and escaped, or broke prison although no actual escape was made by him. Srcr. 4. If any person shall aid or assist a prisoner, lawfully committed or detained in any jail for any offence, to make or to attempt to make his escape thereffom, although no escape be actually made, or if any person shall convey, or cause to be delivered, to such prisoner, any disguise, instrument or arms proper to 328 ESCAPE, facilitate the escape of such prisoner, although no escape or attempt to escape be actually made, he shall, on conviction, be deemed guilty of a misdemeanor, and be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, . or by simple imprisonment, not exceeding two years; and if any person shall aid or assist any prisoner to escape, or attempt to escape from the custody of any sheriff, constable, officer or other person who shall have the lawful charge of such prisoner, every person so offending, shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or simple imprisonment, as the court may direct, not exceeding two years. Sxct. 5. If any sheriff, coroner, keeper of any jail, constable or other officer, having any offender, convicted or accused of any crime, in his lawful custody for such crime, shall voluntarily permit or suffer such offender to escape and go at large, every such sheriff, coroner, keeper of jail, constable or other officer so offend- ing, shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinemd¢nt at labor, or by simple imprisonment, not exceeding five years, and shall, moreover, by the said sentence be dismissed from office. Szor. 6. If any keeper, jailer, sheriff or other officer having a prisoner in his custody or charge, under a criminal conviction, sentence or charge, shall suffer such prisoner through gross negligence to escape, he shall be guilty of a misde- meanor, and, on conviction, be sentenced to an imprisonment, not exceeding one year, and to pay a fine not exceeding five hundred dollars. Sor. 7. If any sheriff, coroner, or keeper of a jail, constable, or other officer, shall wilfully, and without reasonable cause, refuse to execute any lawful process, directed to him, requiring the apprehension or confinement of any person charged with, or convicted of, a criminal offence; or shall wilfully, and without reasonable cause, omit to execute such process, by which such person shall escape, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to an imprisonment not exceeding two years, and a fine not exceeding five hundred dollars. II. A violent or privy evasion out of some lawful restraint, as when a man is arrested or imprisoned, and gets away before he is delivered by due course of law, ig an escape. Termes de la Ley 321. n Be actions ‘the sheriff [or constable] is to answer for an escape. Bull. N. A constable is liable for an escape, without proof of negligence or misconduct . on his part. 4 W. 215. An action against a constable for an escape is not within the limitation of the act of 1772. 8. Barr 405. 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. B - ae a prisoner in execution the liberty of the jail-yard is not an escape. 2 But if the prisoner escape from the jail-yard, the sheriff can avail himself of nothing as a matter of defence, but an act of God or of the common enemy. Ibid. It is not a sufficient answer to an action against a sheriff for an escape, that the jail and jail-yard are defective and insufficient to keep the prisoners. Ibid. If a jailer suffer a prisoner to escape without the sheriff’s knowledge, and the sheriff be thereby made responsible, the jailer is liable to him in an action on the case; nor will it relieve the jailer from liability that he took advice and acted with good faith in the matter. 5 W. 141. After an escape, the sheriff may himself retake the defendant, unless the escape were with his permission. Barnes 373. 2T. R. 25. But in the latter case, he cannot arrest or detain him without new process. 2 Johns. Cas. 3. 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. P. C. 187. In an action on the case against a sheriff [or constable] for an escape, the measure of damages is the actual loss which the plaintiff has sustained ; hence, it’ is compe- tent for the defendant to prove that the defendant in the execution was insolvent \ ESCAPE. ; 329 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. 5 W. & 8. 455. 3 Barr 269. If an action of escape be brought in debt, the jury, if they find for the plain- \ tiff, must find the whole debt and costs; but if brought in case, they may find \such damages as they think proper. 3 Barr 269. 2 Greenl. Ev. § 265. 3 Y. 17. 4Y.47. 78. &R. 278. o In an indictment for a voluntary escape, it is unnecessary to allege, that the de- i dant knew the person or persons escaping to be guilty. 5 Pittsburgh Leg. J. f a party imprisoned upon an indictment found, or upon a regular commitment under the hand and seal of a justice of the peace, break prison and escape, he is guilty of a misdemeanor, under the act of 1860; and that without his being indicted, tried or convicted of the principal offence. 2 Ash. 61. A refusal to prosecute, or a return of ignoramus by the grand jury for the princi- pal offence, is no acquittal; nor is it any bar to an indictment for breaking prison, whatever might be the effect of an acquittal by a jury. Ibid. An indictment, under the 7th section of the act of 31 March 1860, for a refusal to execute lawful process, should show, by proper averments, that the process was lawful. 2 Curt. C. C. 153. III. WARRANT AGAINST A CONSTABLE FOR AN ESCAPE. MONTOUR COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of N—— Township, in the County of Montour, greeting: Wuereas a certain A. B. of N. township aforesaid, tailor, was on the Ist day of May, a. pv. 1860, at N—— aforesaid, charged, on oath, before J. R., one of our justices of the peace in and for the said county, with stealing sundry goods and chattels from the house of T. R., of G—— aforesaid, store-keeper, [or as the offence may be.] Whereupon our said justice did then and there make a certain warrant, under his hand and seal, in due form of law, directed to C. D., constable of R—— township, in the said county, re- quiring 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 executed; and whereas complaint has been made, on oath, before our said justice, that the said C. D., constable as aforesaid, did, by virtue of the said warrant, on the same day and year aforesaid, at G—— aforesaid, take and arrest the body of the said A. B., and him in his custody for the said offence had, but not regarding the duty of his office in that behalf, unlawfully and negligently did permit the said A. B. to escape and go at large, out of the custody of him, the said C. D., to the great hindrance of justice, and in contempt of our laws. You are therefore hereby commanded forthwith to take the said C. D. and bring him before the said J. R., to answer the premises, and further to be dealt with according to law. Witness the said J. R. at N—— aforesaid, the 20th day of May, a. p. 1860. R., Justice of the Peace. [szat.] [ 830 ] Ebidence, I, General rules of evidence. VIL Handwriting. II. Of written evidence. VIII. Hearsay. III. Parol evidence. IX. Witnesses. IV. Book entries and accounts. X. When a party to a suit may be a wit- V. Of accounts. ness. VI. Depositions, how to be taken. XI. Miscellaneous cases. I. Evrpence 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 BI. Com. 367. Evidence is of two kinds, either written or parol, that is, by word of mouth. 3 BL. Com. 368. Evidence consists of that which is proved, and, under particular circumstances, of that which is not proved. 10 W. 104. 7 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 B. 326. The rule which ex- cludes secondary evidence, in a contest with primary, does not mean that every- thing is secondary, which is not of the highest order, but only that which discloses the existence of other evidence, the non-production of which, may be supposed to be on the ground that, if produced, it would work against the party offering it. 1 Wr. 93. What 4 party admits, or what 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. Peake’s Ev. 11. But a distinction must be made between an admission. and an offer of compro- mise, 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 of particu- lar articles of an account are good evidence. Bull. N. P. 236. 2 Barr 182. Where positive and direct evidence is not to be looked for, the proof of circum- stances and facts consistent with the claim of one party and inconsistent with that of the other, is deemed sufficient to presume the particular fact which is the sub- ject of controversy. Long and undisputed possession of any right, or property, affords a presumption that it had a legal foundation, and, rather than disturb men’s possessions, even records have been presumed. So, if a landlord gives a receipt for rent due at one time, and afterwards claims rent due at a time preceding, it fur- nishes a strong presumption that such preceding rent has been paid; and where a stale demand is made, the very circumstance of its coming late, in all cases inclines the mind to suspect that it has not a just foundation, and in many has been taken as complete evidence of the non-existence or payment of it; but these cases resting on presumption, and not on positive proof, very slight evidence is sufficient to rebut and overturn them,/and to call on the different parties to estab- lish their respective rights by the ordinary rules of evidence. Peake’s Evid. 13. 1 Greenl. Hy. § 838-48. An act proved to have been done by a party at a time when it was against his interest to do it, may afterwards be given in evidence in his favor or in favor of those claiming under him. 1 C. 332. 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. Ibid. 227. If the relevancy of facts offered in evidence depends upon special scientific prin ciples, they must be offered in connection with, or after evidence is given of, the principles that reveal their importance, or their relevancy cannot appear. 1 C. 95. All collateral facts that are, in any direct manner, capable of affording a reason- able presumption or inference as to the principal fact or matter in dispute, are competent subjects of proof. 8 C. 111. \ EVIDENCE. 381 Evidence is not to be rejected because it does not prove the party’s whole case, if it be a link in the chain of proof. 11 C. 308. Evidence of a demand made by a plaintiff upon a person in the employment 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. ‘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. Tn an action brought “for the use of” another, it is not competent for the defend- ant to prove that the transfer was obtained by fraud. 6 W. 309. II. OF wRITTEN EVIDENCE. Evidence by records and writings, is where acts of assembly, judgments, proceed- ings of courts, deeds, &c., are admitted ag evidence. A record may be proved by its: production, or by a copy. Copies of records are either exemplifications, copies made by an authorized officer, or sworn copies. Exemplifications are copies under the great seal or under the seal of some particu- lar court, which seals prove themselves. Where the Jaw intrusts a particular officer with the making of copies, it gives credit to them in evidence, without further proof. Bull. N. P. 229. Not only records, but all public documents which cannot be removed from one place to another, may be evidence by a copy proved on oath to have been examined with the original. Records and enrolments prove themselves, and a copy of a record or enrolment sworn to, may be given in evidence. Co. Litt. 117, 262. 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 authenti- cated by the proper officer, in whose custody it was. 9 W. 311. 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 W. & 8. 156. A printed copy of an act of assembly, published under the authority of the legis- lature of another state, may be read in evidence. 12 8. & R. 208. 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 Green]. Ev. § 486-8. In all suits or causes where it shall be necessary for either party to give in evi- dence the proceedings had before a justice or justices of the peace or alderman of any other state, a transcript of the docket, proceedings or record of the said justice or justices or alderman, certified by the same, respectively, and verified by the certificate of the clerk or prothonotary of a court of record in the city or county wherein the said justice or alderman has jurisdiction, under the seal of the court, setting forth the official character and authority of the said justice or alderman, attested by the judge thereof, shall be legal evidence of the judgment entered in such case. Act 29 March 1860. Purd. 426. 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 Black. 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. R. 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 sufficient. An agreement or deed, under which land has been xecupied and claimed for 832 EVIDENCE. upwards of thirty years, may be given in evidence without proof of its execution by the subscribing witnesses. 1 W. & S. 533. 1 Greenl: Ev. § 21. : The record of a deed, as contained upon the record bovk, brought into court in the county in which it belongs, is legal evidence. 10 W. 67. . A deed so acknowledged or proven as to be properly admitted to record, is admissible in iidenen without further proof of execution. 4 Barr 13. 5 Gilm. 376. ‘ Writings with the seal torn off, allowed to be read in evidence. 1 Binn. 538. Parol evidence in general is esteemed secondary in its nature to written evidence. Thus, where an agreement has been reduced into writing, the writing must be pro- duced. 3 Esp. 213. 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, 2 copy is not evidence, unless the original is lost or destroyed. 3 Salk. 154. 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. The docket entry, upon proof of the loss of the other part of the record, is com- petent evidence; and parol evidence may be given of the contents of that part of the record which is lost. 10 W. 638. In the case of private deeds or other instruments, the production of the original, if in existence, and in the power of the party using it, is always required ; till this is done, no evidence whatever of the contents can be received; but where the original has been destroyed, or lost by accident; or being in the hands of the 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 instrument. 10 Co. 92. 3 T. R. 151. 1 Str. 526, 70. 1 Atk. 446. 10 Johns. 363. The preliminary proof necessary to admit secondary evidence of the existence and execution of a lost deed, must be based on the acts and declarations of the party whose title is to be affected by such evidence. 5 C. 875. Before secondary evidence can be given of a lost deed, it is necessary to prove that it was executed and delivered, and if the person whose title is to be affected by it was not named in the deed, and did not sign it, that such person was in some way a party to the deed. Ibid. Proof of diligent search and inquiry by the proper custodian, is sufficient to let in secondary evidence of the contents of a lost document, unless it be traced to other hands. 7 C. 489. A receipt is not conclusive evidence against the party signing it, but he may show that he did not receive the sum or thing in question. 2 T. R. 367. A receipt in full is conclusive evidence when given under a knowledge of all circumstances then depending between the parties ; aliter, when given without such knowledge. 2 Esp. 175. But when such a receipt is obtained by fraud, &c., it is a nullity. 1 Campb. 394. In an action agaipst 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. _ 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 W. & S. 266. The practice of admitting an account sworn to by the plaintiff as conclusive evi- dence against the defendant, is not only illegal, but highly unreasonable and danger- ous, as it gives to the dishonest man a power over his neighbor’s purse totally incompatible with every rule of equity or justice. However convenient to the i EVIDENCE. 333 plaintiff, or whatever facility in the transaction of business it may afford to the jus- tice, the practice, if it has prevailed, ought to be discontinued. And indeed pro- ceedings of justices founded upon such practice are invariably set aside by courts of justice. 2 D. 77, 114. A paper handed upon request to the opposite counsel, and inspected by him, does not, in consequence thereof, become evidence for both parties. 6 8. & R. 293. A memorandum proved by a witness, who can swear to no more than that it was accurately made by him, at the time, to perpetuate his memory of the fact, is com- petent evidence. 3 Barr 414. III. Paron EVIDENCE, WHEN ADMITTED TO AFFECT A WRITTEN CONTRACT. The general rule is, that parol evidence is admissible to explain, but not to con- tradict, alter, add to, or diminish a written instrument. 4 D. 340. But the rule which forbids parol evidence to be received, to contradict or vary a written agreement, has reference exclusively to the terms in which the writing is couched. The plain and unequivocal terms of an agreement may not be altered by parol ; but such explanations of the subject-matter may be proved as will give those terms the effect intended by the parties. 5 C. 92. Parol evidence is admissible to defeat a written instrument on the ground of fraud or mistake, or to apply it to its proper subject-matter; or, in some instances, as ancillary to such application, to explain the meaning of doubtful terms, or to rebut presumptions arising extrinsically. In these cases, the parol evidence does not usurp the place or arrogate the authority of written evidence, but either shows that the instrument ought not to operate at all, or proves what is essential in order to give the instrument its legal effect. 1 Bouv. Inst. 358. As a preliminary to every question of the interpretation of a writing, it must be proved or assumed that it is genuine and authentic; that it is free from fraud in its creation ; that the makers of it were competent ; that the subject-matter of it is law- ful; and that it is executed according to law: and for these purposes, parol evidence is proper, in order to put the instrument into the hands of the judge for interpreta- tion and construction. 7 C. 252. The judge must receive by admissions, or by testimony, all the information that is necessary, in order to put himself in a position to interpret and construe the writ- ing with intelligence: that is, to apply it to persons, things and events, according to the intention under which it was written. He must, as far as possible, place himself in the same circumstances of time and place, as the author of the writing was when he wrote it. Ibid. ; In Pennsylvania, in consequence of our liberal allowance of set-offs, defaleations and equitable defences, parol evidence is often admissible in an action on a written contract, in order to extend the field of inquiry to the whole transaction, of which the particular contract forming the basis of the action forms a part. Ibid. Although a contract may be provable only by writing, yet, if it be only a part of amore comprehensive transaction, so far as the remedies are plastic enough to administer the legal and. equitable rights growing out of it, its other parts, not required to be in writing, may be proved by parol. Ibid. In such cases, the parol evidence is not admitted for the purpose of affecting the interpretation of the particular writing which the party is called upon to meet, but for the purpose of enlarging the sphere of juridical action, so as to embrace the whole transaction to which the writing belongs, and define the rights growing out of the whole case. Ibid. 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 be expressly contrary to the writing. 168. & R. 424. 1 Greenl. Hy. ch. 15. Parol evidence is admissible to prove that when a bond was executed, it was agreed it should be void, in a particular contingency. 1 Y. 182. It is always admissible to show that a formal conveyance, with a defeasance executed some time afterwards, constituted in fact, a mortgage, and not a condi. tional sale. 9 C. 181. 4 334 EVIDENCE. Where a mortgagor by deed and defeasance, under a mistaken apprehension of the effect of the defeasance upon the rights of third parties, executed a release of his equity of redemption, parol evidence is admissible to show that the parties did not intend thereby to affect their relation of mortgagor and mortgagee. Ibid. Parol evidence is admissible, in such case, not to contradict the release, but to give to it the effect and operation intended by the parties, and to prevent its being set up with a different effect, and for a different purpose. Ibid. Parol evidence is admissible to show fraud in the formation of a written instru- ment, or a fraudulent use of it afterwards. 4 R. 141. Parol evidence of what took place, at and immediately before the execution 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 Ash. 313. In an action on a contract for the delivery of specific articles, parol evidence is admissible to prove that the parties agreed upon a place where the delivery was to be made. In such case, parol evidence is admissible to rebut the presumption which would otherwise arise as to the place of delivery. 7 C. 265. Parol evidence of the understanding of the parties in relation to the construction of a written agreement, may be given to explain that which is otherwise ambigu- ous. 9 W. 9. Parol evidence is admissible in an action by the indorsee against the indorser of a note, indorsed in blank, to show that at the time of the indorsement the indorsee received the note under an agreement that he should not have recourse upon it to the indorser. 5 S. & R. 363. It is competent to give parol evidence to explain a written receipt, and show that it was given for a note and not for money. 1 W. & S. 321. 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. 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. 1 Wh. 303. In debt for rent on an indenture of lease, parol evidence was held to be admissi- ble 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 8. & R. 345. IV. Book Entries anp Accounts. If a suit be founded on a book account and the defendant question the validity of the demand, it is most assuredly the duty of the justice before whom the cause is depending, to require of the plaintiff to produce his proofs of the existence of the debt. If the subject of the action be gcods sold and delivered, or work and labor done, in the usual course of business, for the defendant, the plaintiff's day-book ought to be produced. The book, accompanied by the oath or affirmation of the ‘ person who made the entries, (whether it was the plaintiff or his clerk,) that the entries were truly made, (1 Y. 321,) at the times then specified, will not only be good evidence of the sale and delivery, but likewise of the value of the goods, or work done, if a price be put upon them in the book, (1 Y. 347.) The book thus produced, and sworn to, must be the plaintiff’s original book of entries, and not a ledger, or transcript from the original; for the strength of this evidence is derived from the absolute authenticity of the original 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 consistency of the date, &. The admission of the pane in this case to give stability to his claim by his own oath, is certainly a violation of that rule of 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 be 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 credibility ; its credibility will rest upon the fairness and regu- EVIDENCE. 335 larity of the entries, unless it be reasonably accounted for; an interlineation, par- ticularly with ink of a color different from that with which the body of the entry was made; crowding more words into a smaller space than the general handwriting of the book required, and the like, are circumstances of fraud which should not only invalidate the specific entry under consideration, but perhaps destroy the tes- timony of the book altogether. Grayd. Just. 116,117. 1 Greenl. Ev. § 117.. Books of original entries made by the party, and verified by his oath, are com- petent evidence of goods sold and delivered, and work done, and of the prices; but not of money lent or paid. 1 Y. 847. 1 Smith Lead. Cas. 354. The book of original entries of a tradesman is not evidence of the delivery of the goods to be sold on commission. 2 Wh. 33. A pook 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. 4 W. & S. 290. Nor of labor performed under a special contract. 2 C. 384. 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 J. 310-12. The book of original entries, although prima facie evidence of the prices of goods sold, or work done, is not conclusive; either party may go into other proof of the prices, and the judgment of the jury [or justice] is to be formed on the whole. 1 Y. 347. The book of original entries of a physician is not conclusive as to the value of the services charged. The jury [or justice] may make an abatement for unreason- able or excessive charges. 2 Phila. R. 17. If the defendant be not the original debtor, but assume to pay the debt of another, the entry in the plaintiff’s book, proved by his own oath, cannot be received in evidence: proof must be made by an indifferent witness, or by some instrument of writing. 1 D. 238. Unconnected scraps of paper containing, as alleged, accounts of sales, by an agent, of articles on account of his principal, irregularly kept on their face, are not admis- sible as a book of original entries. 13.8. & R. 126. 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. i : A book purporting to be a book of original entries, containing entries of the sale of goods made when the goods were ordered, but before they were delivered, is not competent evidence of goods sold and delivered. Nor are arbitrary signs or marks affixed to the entries of each article, not for the purpose of charging the defendant, but of informing the porter, so as to prevent a second delivery of a similar article,, evidence of delivery, particularly when it appears that the signs or marks were not always made by the person who made the charge, nor by the plaintiff, or a clerk in his employ. 4 R. 404. 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. In order to the validity of a book entry as evidence, it must be a registry of a sale and delivery, actually made, of the things therein contained at the time of their being so entered. 4 W. 258. An entry on a card or slate is but a memorandum preparatory to permanent evidence of the transaction which must be perfected, at or near the time, and in the routine of business. In Ingraham v. Bockius, 9 S. & R. 285, and Patton v. Ryan, 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. ; 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 836 EVIDENCE. 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. : 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.&8. 9. 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. 5 W. & S. 377. ; Original entries in a day-book, in order to their validity as evidence of a charge, must be made, as to time, in the ordinary course of that business in which he is engaged who makes the charge. ‘If they be delayed over one day, they are not legal evidence to charge a defendant unless under peculiar circumstances. 8 W. 544. If a servant in the course of delivering out goods to customers make memoranda, and the same night, or next day, entries are made by the master in books from these memoranda, such books are books of original entries, and are admissible, accompanied with the writer’s oath, as evidence to charge a customer. 9 S. & R. 285. i 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. 48. & R. 3. 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. 1 W. & S. 256. The handwriting of a plaintiff who has made original entries of charge in a book, and who is absent from the state, may be proved, and upon such proof the entries are admissible. 8 W.77. And so in case of a clerk (who has made the entries) temporarily absent from the state. 2 W. & 8. 187. 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 give an explanation which does away with the presumption arising from its face. 6 Wh. 146. 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 8. & R. 99.(a) The entry in a book of original entries must be original, but the elements which composed it may have been reduced to writing previously ; the competency of such entries made by a clerk, depends not on his own knowledge of their correctness, but on the presumption that what he did in the course of his master’s business, was done correctly. 2 Phila. R. 35. The rule which admits shop-books in evidence is founded in necessity, and being evidence made by the party himself, should be subjected to severe scrutiny. And, therefore, when the books of a tradesman have acquired a general reputation for inaccuracy, and through fraud or carelessness false entries have been made, and true ones omitted, so frequently as to destroy the confidence of his customers in himself and his books, there is no reason why credence should be given to them. The general character of a deceased shopkeeper, who made the entries, for honesty (a) This rule has been relaxed in other states. It was expressly ruled in 8 Richard- son 368, and 4 Harrington 8865, that where a plaintiff 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. & 8S. 879, our own supreme ' court say, ‘‘the competency of entries in day- books is based on a personal knowledge of him who makes them that the fact stated is true.” The rule in 178. & R. 99, must, how- ever, be considered the law in Pennsylvania, until the point is again submitted to the revision of the supreme court. EVIDENCE. 337 A eee book-keeping, is pertinent and proper testimony to discredit the books. The book of original entries of a party claiming for goods sold, or work and labor aoe Mee the best or only evidence of the claim, which may be proved aliunde. V. OF accounts. An account rendered to a party indebted, by his creditor, and not objected to in 3 ou time, is prima facie evidence against the party to whom rendered. 6 An account presented to a party indebted, by a creditor, and corrected by the parties,-is an account stated, and binding upon the representatives of the debtor, as to items not objected to by the decedent. 12 C. 156. A copy of an account taken from a book, from which a settlement had been made, was delivered to the party, and retained five months without objection: held, that a copy of that copy, and the book from which it was taken showing the same balance, were evidence. 2 Barr 3238. Even an account current furnished by one party to the other, if not objected to in a reasonable time, becomes a settled account. Bald. 536. 4 W. & S. 109. Where an account sales has been rendered, and the consignor directs the balance - to be shipped, making no objection to the items of the account, he thereby assents to it, and makes it an account stated. 7 Barr 281. It is the settled law merchant, that an account rendered is allowed, if not objected to without unnecessary delay; but the time within which objections must be made cannot be definitely fixed; it depends on the circumstances of the case. 3 H. 236. 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 W. & 8. 109. Such an error might be corrected even in a settled account, where neither party had been prejudiced by the acquiescence. Ibid. ‘ 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. 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 W. 39. g 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 oo party, even though they are inspected by the party who calls for them. 7 .& BR. 10. VI. DrEposITiIons,—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 equity, [or law;] and the copies of such depositions, regularly taken and published, are read, as evidence, 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 wit- nesses in Philadelphia, to be read when the cause shall be tried. ©., having obtained the rule, sends notice to the attorney of B., or to B. himself, as the law, or the practice, may require, of the time and place at which he purposes to examine the witnesses. A notice in the following form will answer this purpose : “A.vs. B. In the 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, deposi- tions will be taken, in said cause, between the hours of 9 a.m. and 5 p.m., on the 19th 22 338 EVIDENCE. day of June, a. v. 1860, at the office of J. B., 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 Plaintiff. To B., the defendant. Pittsburgh, June 4th 1860.” 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 application, and due proof that the subpoenas 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 26 February 1831.. Purd. 423, The parties and witnesses being in attendance, and ready to proceed to the execu- tion of the rule, the magistrate should write, at the top of a sheet of paper, a head- ing of the following, or a similar character : . ‘¢ Depositions of witnesses produced, sworn [or affirmed,] and examined, at the office of J. B., one of the aldermen of the city of Philadelphia, No. 36 South Sixth Street, in said city, on the 19th day of June, a. p. 1860, between the hours of 9 a.m. and 5 Pp. 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 interroga- tories filed, let the justice, previously to reading the interrogatories, note on the sheet of paper on which he is about to write the answers of the witness, a short heading, in these, or similar words—“ To the first interrogatory on the part of the plaintiff the witness answers,”—[inserting the answer of the witness]; and so pro- ceed, 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 wish to correct anything he thay have said, let the correction also, be committed to paper in the words of the witness. Much, very much may depend upon the turn of an expres sion, or the placing of one word before, or after, another. It is better to allow the witness to correct his statements, and to change his words, than to erase some words, and insert others. The witness, in correcting himself, in speaking in his own words, in giving his recollections as they present themselves, is brought more freshly, and more truly, before the court than he could be by erasures and inser tions. The trust confided to justices, in the examination of witnesses under a rule of court, and committing the language of the witnesses to paper, is a very impor- tant one; and he will best discharge it, who shall labor most diligently and suc- cessfully to bring the witness, in all his peculiarities of language, most faithfully before the court, so that, as far as possible, his deposition shall make the same impression upon’ those who hear it read, as the witness himself would make, if he were personally present, orally delivering his testimony. If there shall be any paper produced, in relation to which the witness shall be examined, let it be marked thus: A. “The witness being shown the paper marked A, hereto attached, deposes and says,” &c. Before attaching the paper, write on it thus—‘“ This is the paper A, referred to this day, June 19th 1860, by the wit- ness, H. M., on his examination before J. B., Alderman.” (See 7 W. & S. 393-4.) 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 :—“TI 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, Phila. June 19, 1860.” (See 3 H. 51.) The whole of the papers should be put under an envelope, and addressed to the prothonotary of the court from whence the rule issued, and directed to the county town of the proper county where the office of the prothonotary is kept. EVIDENCE. 339 A rule to take depositions implies, without being so expressed in it, that they are to be taken before a judge or justice of the peace. 5S. & R. 246. A notice to take depositions should have sufficient certainty as to time and place . oa the opposite party to attend, without any extraordinary search. 3 B. 189. 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 B. 72. The person before whom depositions are to be taken, has no power to adjourn from time to time without consent and without notice. 5 S. & R. 70. It is irregular to give a notice to take a deposition upon two days, although they be consecutive. 8 W. 406. Notice of the taking of a deposition, served on the attorney in the cause, is good unless he object at the time of service. 8S. & R. 41. 3 H. 65. A deposition taken in pursuance of a rule of court cannot be read in evidenee, unless it appear by the certificate of the justice, that it was taken at the time and place mentioned in the notice. 4 W. & S. 118. Hl ee particularly appear when and where the depositions were taken. 4 W. C. . 186. , The witness should be sworn before his testimony is reduced to writing, but if the pazty being present make no objection before the justice, it will be considered as waived. 6 W. 266. \ If the deposition be ex parte it must appear that it was taken before a person duly qualified to administer an oath, either officially or by delegation from the court. 8 H. 130. o The letters “ J. P.” subjoined to the name of the person before whom a deposition a is taken, are a sufficient designation of his official character as a justice of the peace. 8 C. 514. 3 Conn. 171. 2 Gratt. 216. 11 Ibid. 516. A party who attends and cross-examines witnesses, on a short rule to take deposi- tions, waives all objections to the sufficiency of the notice. 11 C. 111. ae A cross-examination, under a rule of court, does not prevent objection, afterwards, to the competency of the witness. 1 D. 275. But objections to leading. questions must be taken at the time of the examination. 3 B. 133. 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. 12S. & R. 410. 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. The part of a deposition which is in the handwriting of the agent, or attorney of the party, cannot be read; although an agent of the other party was present, and eross-examined the witness, after having objected to his competency, on the ground of interest. The cross-examination, in the handwriting of the justice, is not excep- tionable, and may be read. 2 P. R. 200. 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. 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. A deposition drawn up privately by one of the counsel in the cause, from the mouth of the witness, and afterward sworn to before a justice, under a rule to take depositions, is not admissible in evidence. 12 8. & R. 405. 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 8. & BR. 405. Testimony taken under a commission in another state cannot be read in evidence, if the attorney of one party was present when it was taken, though he took no part in the examination, and was not employed to attend. The practice is to disallow depositions taken by a commissioner, when the party procuring it was present with the commissioner at the time of taking it. The party, his solicitor or agent, pro- 340 | EVIDENCE. cures the attendance of the witnesses before the commissioner, but must withdraw while it is being taken. 6 Barr 450. 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 8. & R. 298. 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 B. 436. It is not necessary that the interrogatories should be incorporated into the body of the deposition. It is sufficient that they have been severally answered. 10 H. 353. | In case of difference of opinion in taking down the words of the witness, the jus- tice should decide. 12 8. & R. 410. It is not necessary that depositions taken under a commission should be sub- scribed by the witness. 1S. & R. 291. 1 W. OC. C. 144. There need not be a certificate by the justice at the conclusion of each deposition taken by him. The general caption and certificate are sufficient. 8 H. 51. Regularly the return to a commission should be addressed to the prothonotary ; but where the deposition, though received by the plaintiff, was submitted to and first examined by the defendant’s attorney, and was afterwards filed, the irregulari in the retxrn was held not to be a sufficient reason for excluding it. 10 H. 353. VII. Hanpwairina. 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 be procured; and in general, to prove the handwriting of a person, any witness may be called, who has, by sufficient means, acquired such a knowledge of the general character of the handwriting of the party as will enable him to swear to his belief that the handwriting in question is the handwriting of that person. 2 Stark. Ev. 378. 1 Greenl. Ev. § 577. 1 H. 641. 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 patd ; if the witness swears affirmatively, from his knowledge derived from these facts, that he believes the signature produced to be the proper handwriting of the party. 19 Johns. 134. 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 attest- ing witness to a will. 2 N. & M. 400. 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. 8 P. R. 487. 1 0. 133. A witness whose only knowledge of the handwriting of a party is derived from having seen such party write his signature once, may be admitted to testify his belief of the handwriting of such person, when it comes in question: but the rule cannot be extended beyond this. 2 0. 388. A witness who has never seen a party write, and who has had no correspondence with him, and no knowledge of his handwriting, except that which he derived from letters written to others, which purported to have been written by the party, is not qualified to testify as to the handwriting of such party. 4 C. 318. Mere comparison of handwriting with others, admitted as proved to be genuine, is not allowed as a means of getting a writing in evidence. 5 C. 378. To prove handwriting by the mere judgment of a witness, who grounds that judgment solely on a comparison with other writings, which in his judgment are genuine, is going further than the cases warrant. 4 C. 329. Comparison of handwriting 7s 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 B. 349. 6 Wh. 284. To authorize the admission of the writing offered as a test or standard, nothing short of evidence by a person who saw the party write the paper, or admission by = led of its being genuine, or evidence of equal authority, is sufficient. 6 Comparisons of hands are not evidence in a criminal case. 4 W. C. 0. 729 EVIDENCE. 341 But the same rule applies in criminal as in civil cases, that after evidence has been given in support of a writing, it may be corroborated by comparing the writing in question with other writing, concerning which there is no doubt. 6 8. & R. 571. Such proof is legitimate in attacking a writing as false or forged; and especially where other evidence has been given casting suspicion upon the genuineness of the proposed writing. And in such cases, experts may be called in, to aid in the com- parison, by giving their opinions as witnesses. 5 C, 378. Where the witness’s recollection of the character of the party’s handwriting has been effaced by time, he may be permitted to revive his memory of it, by the inspection of a writing which he knows to be genuine; but if such comparison fail to refresh his recollection, so that he can testify independently of the comparison, he is incompetent to prove the handwriting. 2 C. 388. The best evidence of the execution of an instrument is the testimony of the sub- scribing witness: the next best: is, proof of the handwriting of the witness, and this will be admitted when the witness is dead, or out of the jurisdiction of the court. 3B. 192. 28. & R. 80. If the subscribing witness to a bond be 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. 3B. 192. VIII. Hearsay. The few instances in which hearsay evidence can be admitted, are such as are in their very nature incapable of positive and direct proof. Of this kind are all those which can only depend on reputation. The excluding of hearsay evidence in ques- tions of pedigree, would prevent all testimony whatever. There is no other way of knowing the-evidence of deceased persons, but by the relation of others, of what they have been heard to say. In these cases, therefore, the law departs from its general rule, and receives evidence of the declarations of deceased persons, who from their situation were likely to know the facts. Peake’s Hv. 11. 1 Greenl. Ev. § 103-4. To prove pedigree, evidence was permitted to be given of hearsay, a great length of time before any dispute had arisen. 1 D. 14. 1 Wall, Jr. App. iii” Hearsay evidence admitted to prove ancestors to have been Indians. 1 W. C. C. 123. Evidence of hearsay, from the father and mother, is not admissible in a question of age. 1D. 9. The declarations of a former owner, in relation to the boundary of the land of which he was in possession, are competent evidence. But they are not evidence of his right to hold by a different line from that by which he was then holding. 8 C. 802. The declarations of a deceased person touching the locality of a boundary be- tween adjoining owners, have been admitted in evidence, where the survey was made by the person making the declarations, or where they were made by an adjoin- ing owner, who pointed out the line at the time. 3 C. 333. But the declarations of a deceased-person who did not make the original survey, nor subsequently examine it, or run the lines upon the ground, and who was not an adjoining owner, and did not point out the lines at the time, are not admissible. The admission of such declaration, is not to be extended beyond the cases already adjudicated. Ibid. A vendor's declarations, after he has parted with the -title, are not evidence to ‘impeach the title of his vendee. 9 C. 411. : The declarations of a person not in possession of the land, nor the owner of it at the time the declarations are made, cannot be received to impeach a title derived from such person ; especially, if not made in the presence of the party against whom they are offered, or communicated to him afterwards. 4 C. 492. ‘The declaration of a party made to a third person after he has remitted money, of the kind and amount sent, is inadmissible as part of ‘the transaction. 4 C. 501. Where a son receives money from his father to enable him to embark in business, and gives his note for the amount at the time, the transaction cannot be changed \ 342 EVIDENCE. from a Joan to a gift or advancement by the loose declarations of the father, that he gave the money to his son. 5 O. 125. ; A witness called to state what was sworn at a former trial by another witness, since dead, may testify to the substance, and need not state the exact words of the witness, 19 8. & R. 14. The same rule applies when the witness is out of the state. 48. & R. 419. ; The notes of counsel showing what a deceased witness testified on a former trial between the same parties, touching the same subject-matter, are evidence, when proved to be correct in substance ; although the counsel does not recollect the testi- mony independently of his notes, and does not recollect the cross-examination. 3 C. 30, IX. WItNESssEs. . The attendance of a witness in civil cases is compelled by means of a subpoena, which is a judicial writ, commanding the witness to appear at the trial to testify for the plaintiff or defendans, under pain of forfeiting [one hundred dollars] in case of disobedience. If a witness wilfully neglect to attend upon the subpcena, he is guilty of a contempt of court, for which he is liable to an attachment. He is also liable to damages at common law, in an action on the case by the party injured. 1 Stark. Ev. 77,79. 1. & H. Pr. 472. There is no privilege from the service of a subpena. 4 D, 341. Where an instrument is in the hands of a third person, the production is com- pelled by means of a writ of subpena duces tecum. By this writ the witness is com- pellable, it seems, to produce all documents in his possession, unless he have a lawful or reasonable excuse to the contrary—of the validity of the excuse the court [or justice], and not the witness, is to judge. 4 D. 86, 87. But a subpoena with a duces tecum cannot issue to a public officer to bring original papers into court, when certified copies would be evidence. 1 Y. 403. General Rules. By the principles of the common law, every person not in- terested and not of infamous character, may be a competent witness. 2 B. 165. Persons excluded by reason of infamy, are such as have been convicted of treason, felony and the crimen falsi. 1 Greenl. Ev. § 373. A conviction of the offence of conspiracy to cheat and defraud creditors does not disqualify. 9 C. 463. Nor of receiving stolen goods, knowing the same to be stolen. 5 P. L. J. 217. Nor of an assault and battery with intent to kill. 3 W.C. C. 99. See3 W. & S. 338. 1 Gr. 331. The revised penal code has provided that where any person shall be convicted of any felony, not punishable with death, and shall endure the punishment to which such offender shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted: provided that the provisions of this section shall not extend to the case of a party convicted of wilful and corrupt perjury. Act 31 March 1860, § 181. Purd. 247. A negro slave is a competent witness in Pennsylvania. Purd. 756. Insane persons, idiots, and lunatics, during their lunacy, are incompetent witnes- ses; but lunatics, in their lucid intervals, when they have recovered their under- standings, 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. Dig. _ A lunatic, under confinement in a lunatic asylum, is admissible as a witness, if the judge consider him competent in point of understanding, and to be aware of the nature and sanction of an oath. 5 Eng. L. & Hq. 547. But see 6 Moore P. C. 341. Atheists and such infidels as profess no religion that can bind their consciences to speak the truth, are excluded from being witnesses. Bull. N. P. 292. _ The true test of a witness’s competency on the ground of his religious principles is, whether he believes in the existence of a God who will punish him if he swears falsely. 2 W. & S. 262. But whether the punishment will be temporary or eternal, ae this world or that to come, is immaterial in the question of competency. A belief in a future state of rewards and punishments is not essential to the com: EVIDENCE. 343 petency of a witness; nor is it cause of exclusion that he does not believe in the sa el ace of the Bible. 2 0. 274. n such case, the judge or justice must judge whether the credibility of the wit- ness he affected by his belief in the extent of the penalty to be incurred by false swearing, and his disbelief of the Christian religion. Ibid. A witness, while in a state of intoxication, ought not to be sworn nor permitted to testify. 15 Johns. 143. 15 S. & R. 235. And the court before which the witness is produced may decide from its own view, whether the witness be in such a situation that he ought to be sworn. Ibid. 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. Ev. 92, in note. , 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 offence of usury, he cannot be compelled to answer, and therefore such questions ought not to be put. 1 Phil. Ev. 262. In Pennsylvania, a witness is not bound to answer any question which will ST infamous or disgrace him, or involve him in shame or reproach. 1 . R. 415. A witness will be allowed to refer to an entry or memorandum made by himself, after the occurrence of the fact to which it relates, in order to refresh his memory. 1 Phil. Ev. 262. Of their examination. It is a general rule, that leading questions are inadmis- sible 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. 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. & R. 171. 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 W. & S. 557. 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 have no recollection further than finding the entry in his book, the book itself must be produced. 2 T. R. 754. Though witnesses can in general speak only as to ies 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. In cases of life, no evidence is to be given against a prisoner but in his presence. 2 Hawk. P. C. 590. A party may call as many witnesses as he thinks necessary to make out his case; the court will not interfere unless he be guilty of oppression. [The same principle applies to magistrates.} 1 B. 46. 3 B. 414. A Jew must be sworn on the Old Testament and with his hat on. 2 Str. 821. A Jew refusing to be sworn as a witness on Ais Sabbath (Saturday) was fined. 2 D. 2138. A Mohammedan must be sworn upon the Koran. 2 Str. 1104. 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 re- ceived. 1 Atk. 21. ° 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 pergons according to their own opinions, and as it most affects their consciences.” 1 Atk. 42. 2 Cow. 436. See Purd. 760-1 344 EVIDENCE. X. WHEN A PARTY TO A SUIT MAY BE A WITNESS. There is no such rule of law as that the plaintiff or 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, a trustee, who is a mere nominal plaintiff, is a com- petent witness in an action brought for the use of the cestui que trust, if his liability for costs be removed. 6 B. 481. 9 C. 114. But a nominal plaintiff, who has assigned a chose in action to the party for whose use suit is brought, and on which the recovery would have been for his own use, if no assignment had been made, is not a competent witness in support of it. 5 W. & 8. 509. 1 Barr 364. 9 H. 476. The rule established in these cases, however, was not intended to render persons incompetent as witnesses, who were competent at common law. Thus, in an action on a promissory note, a party who had been the holder of it before maturity, but had passed it, by delivery, without his indorsement, is a competent witness for the plaintiff to prove the consideration. 11 C. 451. 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. If different persons, either before or after suits 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. 8 Wh. 370. A plaintiff is always admitted to prove the death of subscribing witnesses, in order to let in proof of their handwriting (2 D. 116); or the loss of an instrument of writing, in order to let in evidence of its contents, its existence having been pre- viously established by other proof. 1 D. 424. 3 Y. 442. 1 Greenl. Ev. § 349. A plaintiff is also competent to prove that a deposition was taken at the time called for in the notice and rule. 1 Barr 344. But he is incompetent to prove notice of action for marrying his daughter. Ibid. 364. 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. In an action by @ 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 compe- of oe to prove that there was money in the trunk, or the amount. 2 W. & But if the trunk contained only wearing apparel, and such things as are ordinarily necessary for the convenience and use of a traveller, such as his wife’s jewelry, and other articles pertaining to her wardrobe; the plaintiff, or his wife, are competent witnesses, to prove not only the contents of the trunk, but also their value. 10 W. 835. 8 W.& S. 369. 8 Barr 451. In an action against the county for the destruction of property by a mob, the plaintiff may prove his ownership and the value of wearing apparel destroyed, but a ene to prove the destruction of his household furniture, &. 10 arr 45. It seems, that one of several co-plaintiffs or co-defendants, who voluntarily comes forward as a witness for the adverse party, is admissible, without or even against the consent of his fellows; upon the ground that he is testifying against his own interest, that the privilege of exemption is personal and several, and that his decla- rations out of court being admissible, a fortiori, they ought to be received, when made in court under oath. 2P.L.J.94. 9 Barrl112. 1 H.149. But see 1 Greenl. Ev. § 354, where the soundness of this doctrine is denied. XI. Miscennanrovs Cases. A witness is incompetent, who has a power of attorney to receive the sum reco- EVIDENCE. 845 Mela) aud intends to pay himself thereout a debt due to him from the plaintiff. 2 sp. 785. _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 con- sequences 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 incumbrance or duty on the other, he is competent. 16 8. & R. 195, 196. Where a witness is interested in either event of a trial, and the preponderance cannot be weighed, it goes to his credit and not to his competency. 4 W. 15. An indirect and contingent liability of a witness is not sufficient to exclude his testimony on the ground of interest: it only affects his credibility. 2 W. & S. 190. 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. 38 W. 110. A witness is competent to prove, that he himself made personally and directly, and for his own exclusive benefit, the contract upon which the defendant is sued; although he conceives himself bound in honor to indemnify the defendant in case of a recovery against him. 1 Ash. 133. A stockholder in a railroad company is incompetent to testify on behalf of the corporation. 4 C. 318. A release under seal to an interested witness imports a sufficient consideration to make it valid; but if without seal, and no consideration be expressed or proved, it ae be regarded as without consideration and insufficient. 5 W. & S. 28. 9 C. 8. ce, 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. 4 W. & 8. 282. | There are some instances where persons substantially interested, and even parties in a cause, are permitted to be examined, from the necessity of the case, and abso- lute impossibility of procuring other testimony. Thus it has been holden that persons who become interested in the common course of business, and who alone can possibly have knowledge of a fact, may be called as witnesses to prove it; as in the case of a servant who has paid money, or a porter, who, in the way of his business, delivers out or receives parcels, though the evidence whereby he charges another with the money or goods exonerated himself from his liability to account to his master for them. In cases of reward for the apprehension of felons, &c., the person aS being entitled to the reward, is a competent witness. Peake’s Evid. 2. ‘ The interest must exist at the time the fact the witness is to prove, happened, or be thrown upon him afterwards by operation of law, or the act of the party who requires his testimony. Skin. 586. 1 Str. 652. Peake’s Evid. 158. / The interest must not only exist at the time of the transaction, but it must con- tinue to the time of the trial; and therefore, when a witness is interested by being answerable to one of the parties, or will have a demand on that party in case the cause is unsuccessful, a release from the party to the witness, or from the witness to the party, as the case may require, by taking away his interest, restores his competency; and in these cases if the party who wishes to call the witness tenders a release on his part, which is refused, he may be examined as a witness. Dougl. 139. Peake’s Evid. 158. , Husband and wife are incompetent to give evidence on behalf of each other, and the law will not suffer them to testify against each other. This rule is so inviolable that no consent will authorize the breach of it. Cases temp. Hard. 264. 2 T. R. 268. 4 T. R. 678. 1 Str. 504. But no other relation is excluded from being a witness, because no other relation is absolutely the same in interest. But when the husband has been guilty of personal violence, or ill treatment of the wife, she may from the necessity of the case be examined as a witness against him. Peake’s Evid. 122. In a civil suit between other parties, the wife may be a witness to charge her husband, as, for example, to prove that the goods for which the action is brought were sold on the credit of her husband. 1 Str. 504. 346 EVIDENCE. So, in some cases, in an action against the husband, though the wife cannot be admitted a witness, yet her confession may be given in evidence to charge him 3 as where an action was brought against him for nursing his child, the plaintiff was allowed to give evidence, that the wife declared the agreement to have been for so much per week, because such matters are usually transacted by women. 1 Str. 527. : It is clearly settled, that a woman who is not legally the wife of a man, though she has been in fact married to him, may be a witness against him. Peake’s Evid. 122. ‘ A wife, after a divorce, is incompetent to prove a contract or anything else, which happened during the marriage. Peake’s Hvid., Appendix 87. 4 Barr 374. 1 Green. Ev. § 254. She is incompetent, after the death of her husband, to prove that he confessed to her that he had committed perjury in a deposition read in the cause. 13 Pet. 209. : : Attorneys to whom facts are related professionally during a cause or in contem- plation of it, are neither obliged nor permitted to disclose the facts so divulged, during the pendency of that cause, or at any future time; and if a foreigner, in communicating with his attorney, have recourse to an interpreter, he is equally bound to secrecy. But where the attorney himself is, as it were, a party to the original transaction, as if he attest the execution of a fraudulent deed, or was employed as an agent, and did not gain his knowledge merely by the relation of the client, the rule does not apply. 4 T. R. 431, 754. Peake’s Evid. 126. An attorney is a competent witness on behalf of his client, though the amount of his fee depend on his success in the cause. 1 D. 241. 18. & R. 32. 178. &R. 312. 8 Barr 520. 2 J. 235. It is a well settled principle, that no man who is a party to a negotiable note shall be permitted, by his own testimony, to invalidate it: having given the note the sanction of his name, and thereby added to the value of the instrument by giving it currency, he shall not be permitted to testify that the note was given under circumstances which would destroy its validity. 1 T. R. 296. 6 Pet. 57. 8 W. 884. But this rule is confined to instruments strictly negotiable, and which having been actually negotiated before maturity, in the usual course of business, and in the hands of an innocent holder, who took it without any previous notice of any original ‘defect in it; and it excludes only those parties whose names were on the paper when it was transferred to the holder. 6 8. & R. 115. 4 Ibid. 8397. 1 Wr. 494, 498. And a party to paper actually negotiated, though inadmissible to impeach it, may prove subsequent matters, on payment or discharge. 3 Barr 381. 5 H. 82. And if negotiation after maturity, be first moved aliunde, he is competent to prove that it was fraudulently negotiated. 3 Wr. 279. It does not apply to the intermediate holder of an instrument payable to bearer, and transferred without the indorsement of the witness. 9 Barr 884. 9 C. 239. There are two ways of proving a witness to be interested in a cause; first, by examining him on his vovr dire; or, secondly, by showing his interest by other evidence. But both these ways cannot be pursued at the same time. 1 D. 275. If a witness has been sworn on his 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. 0. 338. 98. & R. 138. If one party has proved by evidence aliunde, that a witness is interested, the oer sunt o the witness's own oath to show that he has no interest. 4S. & R. ' [347] Execution, its Serbice and Return. 1. Form of an execution for debt. VI. Judicial decisions relating to execu- II. Of the general authority of an execu- tions. tion. VII. Articles exémpt from levy on an exe- HI. Of the service of the execution—con- cution. , stable’s returns, and justice’s docket VIII. Form of an execution and constable’s entries. return against a corporation. IV. Legal requirements in an execution. IX. Form of an execution, &c., in tres- V. Of the right to enter special bail after pass. , an execution shall have issued. I. Form oF AN EXECUTION FOR DEBT. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of Walnut Ward, or to the next constable of the said city, most con- venient to the Defendant, greeting: Wuerzas [A. B.] on the [first] day of [May,] 1860, obtained judgment before the subscriber, J. B., one of our aldermen in and for the said city, against [C. D.] for the sum of [twenty-five] dollars [ten] cents, together with [one] dollar [20] cents costs, which judgmént remains unsatisfied: Therefore we command you that you levy the'said debt, and the interest thereon, with the said costs, on the goods and chattels of the said debtor, and indorse hereon the time you make your levy, and, hereon, or on a schedule to be hereto annexed, a list of the same, and, within twenty days from the date hereof, expose the same to sale, by public vendue, you having given due notice thereof by three or more advertisements, put up at thé most public places in your ward, and returning the overplus, if any, of the said sale, to the oat debtor*, And of your proceedings herein, together with this execution, make return to our said alderman, on or before the [twenty-first] day of [May,] 1860. : ; Wirvess our said Alderman, at Philadelphia, who hath hereunto subscribed his name, and affixed his seal, the [first] day of [May,] Anno Domini 1860. J. B., Alderman, [szat.] Constable’ s return.—‘‘ Money paid into office, May 12th. J. H., Constable.” If the judgment be for the recovery of money collected by any public officer, or for official misconduct, (the only cases arising from contract in which a justice is empowered by the act of 1842, to issue an execution authorizing the arrest or imprisonment of the person,) then the following clause should be inserted after the* :— , _ _ And for want of sufficient distress, that you take the body of the said debtor into cus- tody, and him convey to the debtor’s apartment, there to be kept by the sheriff or keeper thereof until the debt, interest and costs hereon indorsed, be fuily paid. — II. The form of an execution for debt, here given, is believed to embrace all the provisions and requirements of the acts of assembly. A careful perusal of the process, as in most other cases, will enable the constable faithfully to discharge his duty. III. The constable is not authorized in any case, even where arrest in execution has not been abolished by law, to take the defendant into custody, unless there be a “want of sufficient distress.” If the debtor shall give the constable ‘goods and chattels,” or valuables of any kind, out of which he is satisfied he can make the debt, interest and costs, called for by his execution, then the constable has no right “to take the body of the debtor into custody.” But if he cannot give such property of his own, on which the constable may levy and make sale, then he is authorized and commanded to convey him “to the debtor’s apartment.” Having delivered the debtor to the keeper, he will indorse the execution in this manner: “TI certify that the within named defendant is in my custody, W. B., keeper of the debtor’s apartment, August 10, 1860,” which execution, so indorsed, being returned to the justice, shall be “deemed sufficient,” and the constable, on the docket of the justice, be discharged from all responsibility on the said execution. The justice should in this, as in all other cases where the constable makes a written return, enter it on his J 348 EXECUTION. (the justice’s) docket, in the very words in which it is indorsed on the execution or other process. . : Every execution should, when returned by the constable, be indorsed in such a way, that the indorsement may be a proper return to the execution when entered on the docket of the justice. For example, “ Money paid into office.” ‘No goods.” “ Levied, and not sold for want of time.” “ Levied, and not sold for want of indem- nity, the goods levied on being claimed by a third person, D. M.” “Levied, sold and money paid into office.” ‘Money paid to plaintiff, whose receipt is on the back of the execution.” “Bonded and discharged by the prothonotary.” Every return made by the constable should be siyned with his name as constable, and dated. : Whenever a constable pays money, into office on an execution, the justice should indorse it, “Paid into office.’ This would prevent almost the possibility of error, misunderstanding or mistake, in relation to the payment of money into the office. This occasion is embraced to recommend that there shall be no accounts kept, no lending nor borrowing between the magistrate and the constables. Whenever either shall receive any money which should be paid over to the other, let it be done with all possible promptitude. IV. By the 22d section of the act 20 March 1810, it is provided that ‘no execution, issued by a justice, shall be set aside for informality, if it shall appear, on the face of the same, that it is issued: 1. ‘In the name of the commonwealth of Pennsylvania.’ 2. ‘After the expiration of the proper period of time’ [for which it may have been stayed by the entry of bail, plea of freehold, or any other privilege which the defendant may have claimed and been allowed, or by agreement of parties.] 3. ‘And for the sum for which judgment had been rendered, together with interest thereon and costs.’ 4. ‘And a day mentioned on which return is to be made by the constable.’ 5. ‘And that the cause of action shall have been cognisable before a justice of the peace.’ ” A justice of the peace who has his blank executions printed in a correct manner'can hardly fail to fill them up so as to meet all which the law requires. V. If the execution shall issue before twenty days after judgment shall have been rendered, still the defendant within that time has a right to enter bail for stay of execution, or an appeal on payment of the ‘costs accrued on the execution,” and for putting in bail. The same privilege under the like payment of costs may be exercised by a freeholder, at any time, before the expiration of the stay of execution allowed by law, on the amount for which judgment had been entered . against him. 1 Ash. 407. VI. When a justice has opened his judgment on the affidavit of the defendant, that he was absent from home when the sumshons was served, &c., and a re-hearing has been had, and the former judgment is confirmed, the stay of execution runs oe the day on which the /as¢ judgment was entered. Com. Pleas, Phila. MS. A defendant is not entitled to stay of execution upon a judgment obtained against him as bail for stay of execution on any former judgment. Act 25 April 1850 § 28. Purd. 431. ae or in an action of debt on a judgment obtained in another state. 2 Am L. R A constable cannot presume to disobey an execution issued by a justice on the ground of irregularity in the proceedings, as where the case was commenced by attachment without a legal bond having been given; if he do so, he will be liable to the plaintiff. 11 Leg. Int. 126. Goods distrained, but replevied, may be taken in execution. 2 D. 31. Stock in a bank or other corporation, standing in the name of a defendant in an execution, is not liable to be sold as his, under the act of 29th March 1819. if it actually be the property of another. 6 Wh. 117. : A loan of personal property, subject to be turned into a sale by a compliance with certain conditions, does not vest in the bailee such an ownership as subjects the property to levy and sale upon an execution for his debt. 7 W. 875. EXECUTION. 349 No execution issued by a juttice of the peace shall be a lien on the property of the defendant before a levy made thereon. Act of 28th March 1820, §4. 2D. 181. An actual seizure is generally necessary to constitute a valid levy of goods, yet the defendant may dispense with it for his own accommodation; and if he do, as between him and the officer, the levy is good. 6 W. 468. - To constitute a good levy on personal property, it is not necessary that an inven- tory should, in the first instance, be made of it, or that the sheriff [or constable] should immediately remove the goods, or put a person in possession of them. If they are within the power or control of the sheriff [or constable] when the levy is made, it will be good if followed up within a reasonable time, by his taking posses- sion of them in such a manner as to apprise everybody of the fact that they have been taken in execution. 3 R. 401. A constable having several executions against the same defendant in his hands at the same time, makes a levy, and indorses a schedule of the goods levied on one of the executions; this is a good levy on all the executions. 3 P. R. 230. Where a constable levies an execution issued by a magistrate on personal pro- perty, and afterwards suffers it to be removed beyond his bailiwick, upon a bond given by a third person to restore it at a given time, the lien of his execution is abandoned, as against an intervening levy of another execution creditor. 2 M. 81. The mere removal of the property beyond the constable’s bailiwick, with his, con- sent, is an abandonment of the lien of his execution, as against the lien of another execution creditor, not a party to the transaction. Ibid. If the constable suffer the goods to be removed, he becomes liable for their value to the plaintiff. 1 Wr. 187. If a constable have reason to doubt about the ownership of property in the posses- sion of a defendant in an execution, he may require the plaintiff to indemnify him ; and if he refuse to sell, not having done so, he becomes liable. 8 W. 220. A constable who remains in possession of the defendant’s premises, under an execution, more than a reasonable time, is liable to an action. 16 Eng. L. & Eq. 501. A sale of personal property by a constable upon an execution, gives a good title to the purchaser, although the same property had been levied by a prior execution in the hands of the sheriff. The controversy between the execution creditors must be determined by an appropriation of the proceeds of sale. 2 W. & 8. 264. A sale of personal property by a constable on execution, made to the plaintiff in the execution, no person but the constable being present at the sale, is illegal and invalid. There can be no public sale without bidders or bystanders. 3 H. 90. A constable cannot lawfully purchase at his own sale, and one deputed by him to make the sale is subject to the same disability. But where the constable personally attends, and superintends the sale, and employs one merely as a crier, the latter may purchase at the sale. 8 H. 342. An execution is not abated by the plaintiff’s death, but shall be proceeded in. The uniform practice, where a plaintiff dies after judgment, is for the executor to have himself substituted, without a scire facias, and even without an application to the court, and to take an execution when he is, in other respects, entitled to it. 10 8. & BR. 119. It is irregular to issue a second execution until the first is returned, for the court [or the justice] ought to know what proceedings have been had on the first execu- tion before they issue another. 2 Am. Dig. 285. 5 P. L. J. 480. Money collected upon an execution by a constable cannot be recovered back ‘ again from the officer upon the allegation of its having been paid a second time. 5 W. & 8. 459. After the defendant has been in execution upon a ca. sa., and discharged by consent of the plaintiff, the action is at an end. 4 B. 24, 82. But if a defendant be discharged at his own request, another execution may be issued. Purd. 432. If the plaintiff consent to discharge one of several defendants taken on a joint ca. sa., he cannot afterward retake him, or take any of the others. 6 T. R. 525. Where a defendant, in custody on an execution, gives bond, with surety, to take the benefit of the insolvent laws, and forfeits his bond, a second execution may be issued against him. But if, when he is in custody under the second execution, the plaintiff discharges him from prison, without the assent of the surety, the debt is 350 EXECUTION. satisfied, and no action can be maintained against the surety upoi the bond. 2 R. 272. When a bond is forfeited by the failure, on the part of the debtor, to file his petition in time to be heard at the general period fixed for the term, execution may be issued against him the moment it can be legally ascertained that he has not com- plied with the terms of the law. 1 Ash. 35. VII. ARTICLES EXEMPT FROM LEVY. In lieu of the property now exempt by law from levy and sale on execution, issued upon any judgment obtained upon contract, and distress for rent, property to the value of three hundred dollars, exclusive of all wearing apparel of the defend- ant and his family, and all bibles and school-books in use in the family (which shall remain exempted as heretofore), and no more, owned by or in possession of any debtor, shall be exempt from levy and sale on execution, or by distress for rent. Act 9 April 1849, § 1., Purd. 482. The sheriff, constable or other officer charged with the execution of any war- rant issued by competent authority, for the levying upon and selling the pro- perty, either real or personal, of any debtor, shall, if requested by the debtor, summon three disinterested and competent persons, who shall be sworn or affirmed, to appraise the property which the said debtor may elect to retain under the’ pro- visions of this act, for which service the said appraisers shall be entitled to receive fifty cents each, to be charged as part of the costs of the proceedings; and property thus chosen and appraised to the value of $300, shall be exempt from levy and sale on the said execution or warrant, excepting warrants for the collection of taxes. Ibid. § 2. The provisions of this act shall not take effect until the 4th day of July next, and shall apply only to debts contracted on and after that date. Ibid. § 6. An unsuccessful plaintiff in an action of trover, against whom an execution is issued for the costs, is entitled to the benefit of the exemption law. 2 Gr. 424. The defendant in a suit commenced by attachment, under the 27th section of the act of 12 July 1842, is entitled to the benefit of the exemption law, if the original demand were on a contract. 18 Leg. Int. 68. A constable, against whom execution is issued upon a judgment obtained for official misconduct, is not entitled to the benefit of the exemption law. 5 C. 176. Individual partners are not severally entitled, under the act of 1849, to retain out of the partnership effects levied on, specific articles to the value of $300. 1 T. & H. Pr. 714. The act must be so construed as to admit a dealer to enjoy $300 of his capital in trade; a new stock purchased with the proceeds of other articles retained under the exemption law, is protected. 6 0. 261. A defendant cannot claim the benefit of the exemption law out of property which he has conveyed in fraud of his creditors. The conveyance, though void as to the creditors, is nevertheless conclusive on the debtor for all purposes. 5 C. 219. He cannot claim to have goods set apart to him, to which he disclaims title. 10 C: 187. If he falsely deny to the constable his ownership of the property levied on, he forfeits his right under the exemption law. 18 Leg. Int. 76. The exemption may be claimed out of any bank notes, money, stocks, judgments, or other indebtedness to the defendant in the execution. Purd. 484. See 12 C. 130. The exemption of property to the amount of $300, from execution, is a privilege which. may be waived by the defendant; and when he does waive it in writing he cannot afterwards claim it. 2 P. 279. 6 W. 36. 11 H. 93. When made at the time the debt is created, the waiver is based upon the same consideration as that upon which rests the liability to pay, and is, therefore, irrevo- cable. 7 C. 225. , A verbal agreement to waive the exemption, made without consideration, is not binding on the debtor. Pittsburgh Leg. J., 6 January 1855. The defendant cannot waive the exemption in favor of a junior lien creditor, nor can he assign it to a third person; any such arrangement is void, and amounts, pro tanto, to an abandonment of his claim. 9 H. 210. 8 C. 160. 12 ©. 373. EXECUTION. 351 The claim for the benefit of the exemption law, must be, generally, made in the case which is the instrument of affecting the sale. 8 C. 276. Where several writs are in the constable’s hands at the same time, one demand is sufficient as to all, but the rule is different as to successive writs. 2 Gr. 197,375. He must claim the exemption against every execution creditor. 2 Wr. 190. During the temporary absence of the owner, any person left. in charge of the premises, and especially a child of proper age, is authorized to claim the benefit of the exemption law, in case of a levy under an execution. 8 C. 82. A demand by the defendant’s wife and counsel is suffitient. 18 Leg. Int. 68. The demand for an appraisement must be made at such a time as to cause no delay to the plaintiff; after the property levied on has been put up for sale, and the biddings have commenced, it is too late. 7 H. 255..-1 C. 182. 2 P. 279. 8 H. 141. It must be made before the day of sale, and unless under special cir- cumstances, before the advertisements are put up. 3 Wr. 213. The object of the legislature was, to prevent the sale of the property; and every act or omission of the debtor, which amounts to an acquiescence in, or an affirm- ance of the sale, is in direct contravention of that object. 9 H. 247. The constable is authorized to administer the oath or affirmation to the appraisers. Purd. 434. His fees for all services under the exemption law are fixed at one dollar. Purd. 469. : When the apparent value of the goods levied on is less than the amount exempted by law, it is unnecessary to make any further specification than is implied in the demand ; at least, until after the appraisement. 8 C. 82. The court, or justice, may set aside the appraisement before the return of the writ, where it is manifestly below the market price. 1 Phila. R. 348. If the appraisement be not publicly conducted, it is sufficient cause for setting it aside. 18 Leg. Int. 141. In no case can the defendant entitle himself to any portion of the proceeds of his personal property. The act speaks of property, not money. It requires him to elect the goods he wishes to retain, and have them appraised; and the property thus chosen and appraised shall be exempt from levy and sale. 7 H. 255-7. If a debtor sell the property exempt from execution, the money is liable to attachment in the hands of the purchaser; and so are the damages recovered by him in an action of trespass for taking it in execution, for such recovery transfers the right of property, and has the effect of a sale: 11 H. 489. But the debt itself cannot be defalked against the plaintiff’s damages. 8 C. 82. In case of non-compliance by the officer with the debtor’s claim to the exemp- tion, his only remedy is by action. 7 H. 255. 10 C. 36. This decision appears to operate with great harshness against the unfortunate debtor, since the court have decided that the damages, when recovered, are liable to be attached. An officer refusing to allow the exemption, becomes a trespasser ab initio. 4 C. 238. 6 C. 264. And either case or trespass will lie against him. 10 C. 201. The following form of election and appraisement may be used : A. B.) Execution issued by J. R., Justice. © D Debt $50 and costs. S. S., Constable. I, C. D., the defendant above named, do elect to retain the following articles of personal property, under the second section of the act of 9th April 1849, to wit: Wg, the subscribers, having been summoned by S$. S., constable, to appraise the pro- perty retained by the above-named defendant, and having been respectively sworn or affirmed, do value and appraise the same as follows, viz. : VIII. Form oF AN EXECUTION AGAINST A CORPORATION. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Fifth Ward, or to the next constable of the said city, most con- venient to the defendant, greeting: ; Waurrsas, [A. B.,] on the joe day of [May] 1860, obtained judgment before the supscriber, J. B., one of our aldermen in and for the said city, against [the Philadelphia 352 EXECUTION. Bank] for the sum of [ninety] dollars [twenty] cents, together with [one] dollar [fifty] cents costs, which judgment remains unsatisfied: Therefore we command you that you levy the said debt, and the interest thereon, with the said costs, on the goods and chattels of the said bank, and indorse hereon the time you make your levy, and hereon, or on a schedule to be hereto annexed, a list of the same, and, within twenty days from the date hereof, expose the same to sale by public vendue, you having given due notice thereof by three or more advertisements, put up at the most public places in your ward, and return- ing the overplus, if any, of the said sale, to the said bank. _ : ‘And of your proceedings herein, together with this execution, make return to our said alderman, on or before the [twenty-first] day of [May] 1860. : Wirwess our said alderman, at Philadelphia, who hath hereunto subscribed his name, . and affixed his seal, the [first] day of [May,] Anno Domini 1860. J.B., Alderman. [szat.] IX. FoRM OF AN EXECUTION IN TRESPASS. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Fifth Ward, or to the next constable of the said city most can- venient to the defendant, greeting: Wuerzas, [A.B.,] on the [first] day of [hey 1860, obtained judgment before the sub- scriber, J. B., one of our aldermen in and for the said city, against [C. D.,] for the sum of [eighty-six] dollars [ten] cents damages, in trespass, together with [two] dollars [twenty] cents costs, which judgment remains unsatisfied: Therefore we command you that you levy the said debt, and the interest thereon, with the said costs, on the goods and chattels of the said defendant, and indorse hereon the time you make your levy, and hereon, or on a schedule to be hereto annexed, a list of the same, and, within twenty days from the date hereof, expose the same to sale, by public vendue, you having given due notice thereof by three or more advertisements, put up at the most public places in your ward, and returning the overplus, if any, of the said sale, to the said defendant. And for want of sufficient distress, that you take the body of the said defendant into custody, and him convey to the debtor’s apartment, there to be kept by the sheriff or keeper thereof, until the damages, interest and costs hereon indorsed be fully paid. And of your proceedings herein, together with this execution, make return to our said alder- man, on or before the [sixteenth] day of [June] 1860. Wirvess our said alderman, at Philadelphia, who hath hereunto subscribed his name and affixed his seal, the [twenty-sixth] day of [May,] Anno Domini 1860. J.B., Alderman. [srat.] Constable’s Return.—‘‘ No goods, and the defendant in custody. May 20th 1860. G. W., Constable.” [ 353 ] Executors and Administrators, I. Who shall be executors and administra- III. Forms of summons, executions for exe- tors, and their duties. cutors and administrators, and con- II. Statutes and judicial authorities. stable’s return. aye I. AN executor is the person to whom another commits, by will, the execution of his last will and testament. An administrator is he to whose care the goods of a deceased person are committed for distribution by a public officer, called the ordi- nary in England, and the register of wills in Pennsylvania. If the execution be committed to a woman, she is called an executrix. If a woman take out letters of administration, she is called an administratriz. If the deceased leave a will, but name no executor, an administrator cum testamento annexo [with the will annexed] is appointed. In case of the death or renunciation of a sole executor, or the death of a sole administrator, the register appoints, in the former case, an administrator de bonis non [of the goods not administered] cum testamento annexo ; in the latter case, an administrator de bonis non. In England, and in many of the United States, an executor of an executor repre- sents the original testator ; but the law is altered in Pennsylvania. Purd. 275. An executor or administrator must give notice of his appointment. Purd. 281. He must file, also, an inventory and appraisement within thirty days after his appoint- ment. Purd. 280. He must take the following oath, ‘You do swear [or solemnly, sincerely and truly declare and affirm] that as executor of the last will and testa- ment of A. B. [or as administrator of the estate of A. B.], deceased, you will well and truly administer the goods and chattels, rights and credits of suid deceased, according to law; and also well and truly comply with the provisions of the law relating to collateral inheritances.” Non-resident executors and administrators must likewise give bond, with two sufficient sureties, for the faithful performance of the duties of their office. Purd. 275. II. Act 24 Frsruary 1834. Purd. 286. Sect. 26. The executors or administrators of any person who at the time of his decease was a party, plaintiff, petitioner or defendant in any action or legal proceed- ing depending in any court of this commonwealth, shall have full power, if the cause of action doth by law survive to them, to become party thereto, and prosecute or defend such suit or proceeding to final judgment or decree, as fully as such dece- dent might have done if he had lived; and if such plaintiff or petitioner die after. judgment or decree in his favor, his executors or administrators may proceed to execution thereupon, as such plaintiff or petitioner might have done if he had lived. Scr. 27. The court in which any action or legal proceeding may be depending as aforesaid, shall have power to require, by a writ of scire facias, such executors: or administrators, within twenty days after the service thereof, to become party to such action or proceeding, or to show cause, at the next succeeding term, why they should not be made ‘party thereto, by judgment of the court, and further proceed- ings be had in such action or proceeding; but in every such case, the executors or administrators, who shall become party as aforesaid, shall be entitled to the continu- ance of such action or proceeding during one term. Sect. 28. Executors or administrators shall have power to commence and prose- cute all personal actions which the decedent whom they represent might have com- menced and prosecuted, except actions for slander, for libels and for wrongs done to. the person; and they shall be liable to be sued in any action, except as aforesaid,, which might have been maintained against such decedent if he had lived. Szcr. 29. The executors or administrators of every person who was the proprietor’ of any rent charge, or other rent or reservation in nature of a rent, in fee or other wise, as mentioned in the 8th section of this act, shall and may have an action off debt for the arrearages of such rent due to the decedent, at the time of his decease;, against the person who ought to have paid such rent, or his executors or adminis- trators; or they may distrain therefor upon the lands or tenements which were: 23 354 EXECUTORS AND ADMINISTRATORS. charged with the payment thereof, and liable to ‘the distress of such decedent so long as such lands or tenements remain and are in the seisin or possession of the tenant who ought to have paid such rent, or in the possession of any other person claiming the same, from or under the same tenant, by purchase, gift or descent, in like manner as such decedent might have done if he had lived. Secr. 30. The executors or administrators of any tenant for life, who shall die before or on a day on which any rent was reserved or made payable upon any de- mise or lease of any real estate, which determined on the death of such tenant for life, may have an action on the case, to recover from the lessee or under tenant of such real estate, if such tenant for life die on the day on which the same was made payable, the whole, or, if before the day, a proportion of such rent for the last year, or quarter of a year, or other current period of payment, according to the time elapsed at the decease of such tenant for life as aforesaid. Scr. 31. No action or other legal proceedings, commenced by or against execu- tors or administrators, shall be abated or otherwise defeated, by reason of the death, dismissal, resignation or renunciation of any one or more of them, nor by reason of the annulling or revoking of the letters or powers granted to them, or any of them ; but such suit or ;proceeding may be prosecuted to final judgment or decree, by or against such other person or persons as may have been joined with them in the administration, or. by or against such person or persons as may be their successors therein, in all cases, in like manner as if no such change had occurred or act been done; and in all cases of the vacancy of the administration as aforesaid, the succes- sors therein shall be made party to such action or proceeding, in a manner provided by the 26th and 27th sections of this act. Sscr. 33. No execution for the levy or sale of any real or personal estate of any decedent, shall be issued upon any judgment obtained against him in his lifetime, unless his personal representatives have been first warned, by a writ of scire facias, to show cause against the issuing thereof, notwithstanding the teste of such execu- tion may bear date antecedently to his death: and in all cases where property, real or personal, of a decedent is sold upon an execution, and more money raised than is sufficient to pay off liens of record, the balance shall be paid over to the executor or administrator for distribution; but before any such payment shall be made, such executor or administrator shall give bond, to the satisfaction of the court, conditioned for the legal distribution of such money: Provided always, That such money shall be distributed as the real estate of which it is the proceeds would have been. Szcr. 35. In every case of an execution against the executors or administrators of a decedent, whether founded upon a judgment obtained against such decedent in his lifetime, or upon a judgment obtained against them in their representative character, if it shall be made to appear to the satisfaction of the court issuing such execution, that there is reason to believe that the personal assets are insufficient to pay all just demands upon the estate, such court shall thereupon stay all pro- ceedings upon such execution, until the executors or administrators shall have made application to the proper orphans’ court for the sale of the real estate of the dece- dent, or for the apportionment of the assets, or both, as the case may require. Secr. 37. The omission of an executor or administrator to plead to any action brought against him in his representative character, that he has fully administered the estate of the decedent or any other matter relative to the assets, shal] not be deemed an admission of assets to satisfy the demand made in such action; also the omission of the plaintiff to reply to any such matter when pleaded, shall not be deemed an admission of the want of assets as aforesaid, nor shall such omission otherwise prejudice either party; and no mispleading, or lack of pleading, by executors or administrators, shall make them liable to pay any debt or damages recovered against them in their representative character, beyond the amount of the assets which in fact have come or may come into their hands. : Letters of administration, granted in a sister state, are a sufficient authority to maintain an action, in this state, to recover assets which were never liable to admin- ministration here. 19 Leg. Int. 212. 17 Leg. Int. 308. But not to recover the choses in action of a non-resident decedent; such choses and assets being subject to our jurisdiction. 19 Leg. Int. 212. The law in this respect, as held in 4 D. 292, and 1 B. 63, was intended to be altered by the act of 1882. Report of the Revisers EXECUTORS AND ADMINISTRATORS. 855 of the Civil Code. But letters granted in a foreign’ sountry, confer no power to sue in this state. 1 D. 456. : Since the act of 1834, an action of trover will lie against executors, upon a con- version by their testator, in his lifetime. 17 Leg. Int. 221. And so will any other personal action, except suits for slander, libel or wrong to the person. 12 H. 122. The executor of the plaintiff may be substituted, in case of. his death, after the commencement of the action, without a scire facias, by suggesting the death upon the record. 108. & R. 119. 4 Barr 232. An administrator de bonis non may be substituted as plaintiff, in a judgment obtained by the administrator whom he succeeds. 7 Barr 385. And the substitu- tion may be made at any time. 118. & R. 181. An executor is not bound to plead the statute of limitations. 1 Ash. 352. 2 J. 67. 1 Wh. 66. But where an estate is insolvent, each creditor has a right to oppose the bar of the statute, to the claim of another upon the fund. 5 H. 428. In an action at law against an administrator, to recover a debt of the decedent, the statute of limitations is a bar, although less than six years from the time it accrued, had elapsed at the decease of the debtor. 7 C. 450. But in a proceeding in the orphans’ court for distribution, the limitation does not run in favor of the estate, after the decease of the debtor, if the claim were not then barred. The right of a creditor to his just proportion of the property of the debtor, vests at the death of the latter; and the law commits it to the care of the adminis- trator, in trust for all whose debts are valid and subsisting at the death of the intes- tate. 5 C. 360. An executor or administrator who, in good faith, prosecutes a claim of the estate, and fails, is not personally liable to the defendant for his costs. The judgment for costs is against the estate only. 11 H. 471. ‘ Executors (or administrators) who act with ordinary diligence and attention, are not liable for a loss of the funds of the estate; nor are they liable for the mis- management or insolvency of their agents, which they could not foresee nor con- trol. 6 W. 185. An executor who receives money of the estate, and pays it over to a co-executor who afterwards becomes insolvent, is not chargeable with it in favor of legatees, although he would be in favor of creditors. 6 W. 250. An administrator is chargeable with the amount of a note due to his intestate, for the collection of which he delayed the institution of suit for several years after his intestate’s death, when with proper diligence the debt might have been collected. 6 W. 46. In an action by an administrator to recover a debt due to his intestate, the defend- ant will not be allowed to set off a debt due to him by the administrator, for ser- vices rendered to-him in the course of his administration of the estate. 8 W. 74. Executors (or administrators) will not be permitted, under any circumstances, to make profit for themselves out of the funds of the estate in their hands. 6 W. 250. If an administratrix mix the funds of the estate with her own moneys, and employ both in trade, the parties in interest may, if they prefer it, insist on having a proportionable share of the profits, instead of interest on the amount of trust funds so employed. 12 C. 174. : III. ForMs oF SUMMONS, EXECUTIONS, &c. SUMMONS FOR ADMINISTRATRIX AGAINST EXECUTORS. BEAVER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Beaver, greeting: We command you that you summon J. L. and E. W., executors of the last will and testament of T. B., deceased, so that they be and appear before J. R., one of our justices of the peace in and for the said county, on ——, the 8th of March, instant, at three o’clock in the afternoon of that day, to answer S. C., administratrix of T. C., deceased, of a plea of debt, not exceeding one hundred dollars. Witness the said J. R., at S—— aforesaid, the 1st day of March, a. pv. 1860. J.RB., Justice of the Peace. [szau.] Constable's Return.-—“‘ Served on both the defendants, personally, March 7th 1860, by producing to them the original summons, and informing them of the contents thereof. R. R., Constable.” 356 EXECUTORS AND ADMINISTRATORS. SUMMONS FOR SURVIVING EXECUTOR AGAINST ADMINISTRATORS WITH THE WILL ANNEXED. BEAVER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of L—— Township, in the County of Beaver, greeting: We command you, that you summon J. L., J. D., and R. R.., administrators of C, W., deceased, with the will of.the said C, W. annexed, so that they be and appear before J. R.., one of our justices of the peace in and for the said county, on the seventh day of July next, at ten of the clock in the forenoon of that day, to answer G. B., surviving executor of the testament and last will of D. B., deceased, of a plea of debt or demand not Broo nng one hundred dollars. Witness the said J. R., at L—— township aforesaid, the thirtiet day of June, a. v. 1860. J. R., Justice of the Peace. [sza.] Constable's Return.—* Served on R. R., by producing to him the original summons, and informing him of the contents thereof. J. L. and J. D. not found. : “July 6th 1860. R. R., Constable.” EXECUTION FOR EXECUTRIX AGAINST ADMINISTRATORS. BEAVER COUNTY, ss. The Commoziwealth of Pennsylvania, To the Constable of S—— Township, in the County of Beaver, greeting: Wuereas M. L., executrix of the testament and last will of M. L., deceased, on the third day of May, obtained judgment before J. R., one of our justices of the peace in and for the county of Dauphin, against R. R., administrator of all and singular the goods and chattels, rights and credits, which were of W. R., deceased, for a debt of forty dollars, together with two dollars and ten cents costs, and the said W. W. and R. R. having hitherto -neglected to comply with the said judgment; we command you that of the goods and chattels which were of the said W. R., in the hands and possession of the said W. W. and R..R., administrators as aforesaid, you levy the debt and costs aforesaid, if you find so much in their hands which were of the said W. R. at the time of his death to be admin- istered ; and if so much in their hands you find not, then the costs aforesaid cause you to be levied of the proper goods and chattels of them the said W. W. and R. R., and indorse hereon the time you make your levy, and hereon, or on a schedule hereto annexed, a list of the same ; and within twenty days thereafter expose the same to-sale by public vendue, you having given due notice thereof by at least three advertisements put up at the most pantie places in your township, and returning the overplus, if any, to the said W. W. and . R.; and of your proceedings herein, together with this execution, make return to our said justice on or before the [fourth] day of November, a. p. 1860. Witness the said J. R., at S—— township aforesaid, the fifteenth day of October, a. p. 1860. J. R., Justice of the Peace, [sra.] EXECUTION FOR SURVIVING ADMINISTRATORS AGAINST EXECUTORS. BEAVER COUNTY, ss. : The Commonwealth of Pennsylvania, To the Constable of S—— Township, in the county of Beaver, greeting: Wuenreas, H. L., euPiiring sdminisientoy of C. W., deceased, on the third day of May, obtained judgment before J. R., one of our justices of the peace in and for the said county, against L. K. and R. R., executors of the testament and last will of S. B., deceased, for a demand of six dollars and fifty cents, together with one dollar and sixty-two cents costs, and the said L. K. and R. R. having hitherto neglected to comply with the said judgment; we command you that of the pds and chattels which were of the said S. B., in the hands or possession of the said L. K. and R. R., executors as aforesaid, you levy the debt and, costs aforesaid, if so much in their hands you find which were ae the said S. B. at the time of his death to be administered they have; and if so much in their hands they have not, then the costs aforesaid cause you to be levied of the proper goods and chattels of the said L. K. and R. R., and indorse hereon the time you make your levy, and hereon, or on a schedule hereto annexed, a list of the same, and within twenty days thereafter expose the same to sale by public vendue, you having given due notice thereof, by at least three advertisements put up at the most public places in your township, and returning the overplus, if any, to the said L. K. and R. R.; and of your proceedings herein, together with this execution, make a return to our said justice on or before the fourth day of November, a, p. 1860. Witness the said J. R., at S——- township aforesaid, the fifteenth day of October, a. p. 1860. J.R., Justice of the Peace. [SEAL. ] Constable's Return.—‘‘ Money paid into office, October 25th 1860. G. H., Constable.” [ 357 J] Extortion. I. Remedy of party grieved for extorting III. Provisions of the Penal Code. illegal fees. IV. Authorities and decisions. II. Penalty for extorting from travellers. I. Aor 28 Maron 1814. Purd. 472. Scr. 26. If any officer whatsoever shall take greater or other fees than is hereinbefore expressed, and limited, for any service to be done by him, after the first day of September next, in his office; or if any officer shall charge or demand, and take, any of the fees hereinbefore ascertained, where the business, for which such fees are chargeable, shall not have been actually done and performed ; or if any officer shall charge or demand any fee for any service or services, other than those expressly provided for by this act, such officer shall forfeit, and pay to the party injured, fifty dollars, to be recovered as debts of the same amount are recover- able. And if the judges of any court within this commonwealth shall allow any officer, under any pretence whatsoever, any fees under the denomination of com- pensatory fees, for any service not specified in this act, or some other act of assem- bly, it shall be considered a misdemeanor in office.(a) II. Acr 13 Junz 1836. Purd. 880. Szcr. 65. If any person working upon any road or highway, or if any one in company with such person, shall ask money or reward, or by any means whatever shall extort, or endeavor to extort, any money, drink or other thing, of or from any person, travelling upon or near such road or highway, the person so offending shall, for every such offence, forfeit and pay a sum not exceeding five dollars.: III. Act 31 Marca 1860. Purd. 219. Srcr. 12. If any justice, clerk, prothonotary, sheriff, coroner, constable or other officer of this commonwealth, shall wilfully and fraudulently receive or take any reward or fee to execute and do his duty and office, but such as is or shall be allowed by’ some act of assembly of this commonwealth ; or shall receive or take, by color of his office, any fee or reward whatever, not, or more than is allowed as aforesaid ; he shall be deemed guilty of a misdemeanor in office, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year. IV. Extortion is an abuse of public justice, and consists in any officer’s taking by color of his office, from’ any one, any money or thing of value, where none at all is due, or not so much is due, or before it is due. Co. Litt. 368. An extortion in a large sense is taken for any oppression by power or pretence of right. 1 Hawk. P. C. 418. “The writers on the common law consider extortion as more heinous than rob- bery itself, attended, as it usually is, with the aggravated sin of perjury.” Dun- can, J. 138. & R. 480. The exaction of a fee by any officer, before it is due, is extortion at common law. 7 Pick. 279. By act of 22d February 1821, “it shall be lawful for the recorder of deeds and register of wills, to receive the fees for recording the same at the time the deed or deeds, will or wills, are left at his office for recording, any law or usage to the con- trary notwithstanding.” Purd. 473. And by act of 11th April 1850, it is provided that nothing in the act of 1814 shall be deemed to impose upon any sheriff, deputy-sheriff or constable, any penalty (a) Re-enacted by the fee-bill of 18 April 1857. Purd. 478. 358 EXTORTION. 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. 473. In an indictment for extortion, it must be shown that the illegal charge was made ‘¢ wilfully and fraudulently,” but in an action for the penalty, given by the act of 1814, the officer is liable, although the charge was made by mistake, and without any intention to extort. In an indictment, the officer might not be liable for the misconduct of his deputies, if unauthorized and unsanctioned, but in a civil suit he is responsible for them. 5 H. 253. The act of 31 March 1860 punishes criminally the offence of taking any fee or reward, not, or more than is allowed by law for the service rendered; but not the mere receipt of fees before the service is rendered; for this a penalty is given to the party grieved, by the act of 1814. Report on the Penal Code 138. In an action against the sheriff to recover the penalty for taking fees for ser- vices not compensated by the fee-bill, it is sufficient to aver that they were taken for services other than those provided for by the act, without specifying for what alleged services they were demanded. 10 Barr 139. A justice of the peace incurs the penalty for taking illegal fees, though he supposed, at the time, that they were legally demandable, and acted without any corrupt intent. 17 8. & R. 75. Where a justice charges illegal fees, which are indorsed on the execution, and collected by the constable, the justice is liable for the penalty, although they are not paid over to him. 3 P. R. 519. Tn 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. [ 859 J HF actories. Act 21 Aprin 1849. Purd. 452. Sxor. 2. Labor performed during a period of ten hours on any secular day in all cotton, woollen, silk, paper, bagging and flax factories, shall be considered a legal day’s labor; and hereafter no minor shall be employed in or about any of said factories until he or she shall have obtained to the age of thirteen years. Secor. 8. If any owner or employer of or in any of the said factories, or his, her or their agent, shall wilfully or knowingly employ any minor below the age of thirteen years as aforesaid, the person or persons so offending shall pay a penalty of fifty dollars for every such offence, to be sued for and recovered by any person suing for the same, as other debts of like amount are now by law recoverable, one- half of the same to belong to the persons suing for the same, and the other half to the county in which the offence was committed. Sect. 4. No minor, who has attained the age of thirteen and is under the age of sixteen years, shall be employed in any of the factories aforesaid for a longer eriod than nine calendar months in any one year, and who shall not have attended school for at least three consecutive months within the same year; and any owner or employer of or in any of the factories aforesaid, offending against the provisions of this section, shall be liable to the penalty provided in the 2d section of this act, to be sued for, recovered and applied.as therein provided. Scr. 5. If any parent or guardian shall consent to, permit or connive at the employment of his or her child or ward, under the age of thirteen years, in any of the said factories; or if such parent or guardian shall consent to, permit or connive at the employment of his or her child or ward over the age of thirteen years, and under the age of sixteen years, for a longer period than ten hours in any secular day, the person so offending shall forfeit and pay the sum of fifty dollars for every such offence, to be sued for and recovered as provided in the 3d section of this act, and: for the uses therein specified. Act 7 May 1855. Purd. 452. Szor. 1. No male or female operative under the age of twenty-one years shall, under any contract, be employed in cotton, woollen, silk, flax, bagging or paper manufactories in this commonwealth, for a longer period than sixty hours in any one week, or more than an average of ten hours a day during the same period. Sect. 2. If any person shall knowingly employ, or any parent or guardian con- sent to the employment of any male or female operative, under the age of twenty- one years as aforesaid, contrary to the preceding section, and proof be made thereof before any alderman or justice of the peace of the ward, borough or district where such offence is committed, he, she or they so employing such operatives, or con- senting thereto as aforesaid, shall, for every such offence, forfeit and pay the penalty of not less than ten, nor more than fifty dollars, to be recovered before any alder- man or justice of the peace of the proper ward, borough or district, in the same . manner as the like penalties are now recovered, to be applied to the use of the public schools of the proper district: Provided, That no penalty shall be recovered under this act, unless sued for within one month after the same shall have occurred ; nor shall any person recover more than one penalty for the working of any factory for the same period of time. Sect. 3. All the ward, borough and township constables are hereby authorized and required, and it is hereby made their duty, to attend to the strict observance of the two preceding sections of this act, when complaint shall have been properly made to them of a violation of the same. It seems, that it is an indictable offence at common law to overwork children in a factory. 2 Twiss’s Life of Eldon 36, cited in Whart. Cr. L. § 3, note. Where, how- ever, the statutory remedy is applicable to the case, the act of 1860 provides that its directions shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law, further than shall be necessary for carrying the act into effect. Purd. 248. 360° FACTORS, Ifa statute prohibit a matter or public grievance, or command a matter of pudlic convenience, all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specify no other mode of proceeding. Whart. Cr. L.§ 10. 13 S. & R. 429. 1 Barr 224. . ~~ Factors. I. Act of assembly. II. Judicial decisions. I. Acr 31 Marca 1860. Purd. 238. Szcr. 125. If any consignee or factor having the possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certi- ficate, receipt or order for the delivery of merchandise with the like authority, shall deposit, or pledge such merchandise or document, consigned or intrusted to him as aforesaid, as a security for any money borrowed, or negotiable instrument re- ceived by such consignee or factor, and shall apply or dispose of the same to his own use, in violation of good faith, with intent to defraud the owner of such merchandise, and if any consignee or factor shall, with like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument, raised or acquired by the sale, or other disposition of such merchandise, such consignee or factor, in every such case, shall be guilty of a misdemeanor, and be sentenced to pay a fine not exceeding two thousand dollars, and undergo an imprisonment, not exceeding five years. Norz.—Oomplaint, on oath or affirmation, being made .to a magistrate that the above law has been violated, he shall issue a criminal warrant setting forth the offence charged ; for example—‘ that A., the factor or consignee of B., having had 20 bales of cotton goods, of the value of $4000, put into his possession by B., had, with intent to defraud said B,, pledged or pawned said cotton goods, &.” The defendant being brought up, and the testimony heard, it becomes the duty of the justice either to discharge, take bail, or com- mit the defendant for trial, at the next court of quarter sessions. TI. One who has consigned goods to a factor and received an advance thereon, has the right, subsequently, to limit the prices at which they should be sold. 8 Comst. 62. Ibid. 78. 3 W.C. 0. 151. But the consignee may sell to repay ad- vances, after calling on the principal for reimbursement, unless there be an agree- ment between them, which controls or varies the right. 8 H. 234. Such an agreement may arise from accepting the consignment, accompanied by an order as ‘to the sale. 14 Pet. 479. The existence of a usage to sell to pay advances, will not control an express contract between the parties as to the sale of the goods ; and as ae joe ene of oe was made im good faith, is not a valid excuse. ; ' ; the consignor stand ready to repay the advance oi Ge ee g y pay 8, he may control the Where one has consigned goods to his factor, and received advances thereon, he oe ces them, without payment, or an offer to pay, not only the amount of advances, but the commissions the factor would have i i ee. ve been entitled to, if a sale had Where goods are sent to a factor for sale without instructions as to the time or emmy sale, ie a at ey to t a. such time and on such terms, as in the exer- cise of a sound discretion he shall deem proper fi i i inci ee ee ee proper for the interest of his principal. If a factor sell below his instructions, although at the then market value. he takes the peril of a rise in the value of the goods at any time before the action is brought, and perhaps down to the time of trial. 3 Comst. 78. It is an established principle in the law of principal and factor, that when the latter renders an account of sales, the former should, with all reasonable dilicence specify in what particular such account is exceptionable. If the principal ‘retain FALSE IMPRISONMENT. 861. the account any unreasonable length of time, he is concluded from making objections, mi ae be considered as acquiescing in the report of the factor’s transactions. One who holds himself out to the world as a consignee cannot ordinarily refuse, without cause, to receive goods consigned to his care; and upon his refusal to re- ceive goods so consigned, the owner may maintain an action against him for any - damage occasioned by such refusal. 6 W. & S. 62. Though a factor has a lien on the goods of his principal, yet he cannot retain against the order of the principal a large portion of the goods, though he may retain as much as will be sufficient to pay his debt. 1 W. C. C. 252. A factor can only claim a lien on goods lawfully in his possession. 4 Comst. 497. Although a warehouseman has not a general, he has a specific lien, and therefore may, on the storage of a large quantity of goods received under the same contract and belonging to the same individual, retain a sufficient quantity to repay himself. 7 W. & S. 466. A factor who discounts for his own use notes received in payment for the goods of his principal, makes them his own, and becomes personally liable to his principal for the amount of the sales. 6 W. & 8. 44. 3 Barr 323. A warehouseman is liable only for negligence in preserving the property deposited with him. 6 C. 247. False Imprisonment, 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 appre- hensions of personal danger, though no assault be made. 1 Bald. 571. If a justice of the peace issue process for the arrest of a defendant, in a case in which it is forbidden by law, he obtains thereby no jurisdiction of the person of the defendant, all his proceedings in the case are null and void, and he renders himself liable to an action for false imprisonment. 4 Comst. 383-4. Thus, where a justice issued a warrant for the examination of a pauper, who was brought into court, examined, and removed to another town, by order of the justice and another magistrate who sat with him: for the reason that the warrant was de- livered to, and served by a constable of another town than that mentioned in the statute, though in the same county, it was held, that the justice acquired no juris- diction, and was liable in an action for false imprisonment. 7 Cow. 269. In an action for a penalty, which is directed to be recovered as debts of like amount are by law recoverable; the defendant is not liable to arrest; an execution, therefore, in such case, authorizing the imprisonment of the person, is void, and the defendant may be discharged on habeas corpus. Martin’s Case, Com. Pleas, Phila., 15 April 1854. False Personation, Act 31 Marcn 1860. Purd. 220. Sor. 16. If any person shall fraudulently and corruptly acknowledge, or procure to be acknowledged, any deed, or any writing authorized to be acknowledged, or any recognisance or judgment, in the name of any other person not privy thereto, or con- senting to the same, the person so offending shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not ex- ceeding seven years. [ 362 ] False Pretences I. Cheats and frauds at common law. IV. Meaning of the words ‘‘any chattel, II. Provisions of the Penal Code. money, or valuable security.” III. Meaning of the words ‘‘by any false V. Meaning of the words ‘with intent to pretence.” cheat and defraud.” I. A mere private imposition, short of felony, and effected by a “naked lie,” without the association of artful device, or false token, voucher, order, &c., is not indictable as a cheat at common law, unless it be public in-its nature, and caleu- lated to defraud numbers, or to injure the government or the publie in general. 2 East P. C. 817, 821. Whart. Prec. 224. 7 P:L.J.362. Such are the following among other frauds. Those affecting the administration of public justice, as coun- terfeiting a creditor’s authority to discharge his debtor from prison. (2 East P. C. 826, 862), or endangering the public health, by selling unwholesome provisions, whether to the public generally (2 East P. C. 821), or under a contract with the government for supplies to particular bodies. 2 Campb. 12. So, in Pennsylvania, an indictment was sustained against a baker in the employ of the United States army, in baking 219 barrels of bread, and marking them as weighing 88 pounds each, when, in fact, they severally weighed but 68 pounds. 1 D. 47. Frauds cal- . culated to affect all persons, as selling by false weights and measures (1 Bl. R. 273); counterfeiting tokens of public authenticity (Tremaine’s P. C. 103); playing with false dice (1 D. 338) ; obtaining money from a soldier, on a false pretence of having power to discharge him (Latch 202) ; or getting the bounty by enlisting as a soldier, being an apprentice, liable to be retaken by a master (2 Hast P. C. 822); have all been held indictable as cheats at common law. But an indictment which charged that the defendant unlawfully and fraudulently did give, enter and file of record a certain bond and warrant of attorney, for $600, to P. D., without any consideration, and with intent to cheat and defraud J. M. and other of his creditors, and that the defendant did cheat and defraud the said J. M. and other of his creditors; was held to charge no offence indictable at common law. 4 P. L. J. 58. To remedy this imperfection of the common law, sundry statutes have been enacted in England and in the United States; which, in Pennsylvania, are embo- died in the 111th and 112th sections of the revised Penal Code. Act 31 Marcu 1860. Purd. 236. \ Secor. 111. If any person shall, by any false pretence, obtain the signature of any person to any written instrument, or shall obtain from any other person any chattel, money or valuable security, with intent to cheat and defraud any person of the same, every such offender shall be guilty of a misdemeanor, and, on ‘conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprison- ment not exceeding three years: Provided always, That if upon the trial of any person indicted for such a misdemeanor, it shall be proved that he obtained the property in question in such manner as *) amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts. Sscr. 112. If any person, with intent to cheat or defraud, shall by any false or fraudulent representations, or by any false show or baggage, goods or chattels, which are calculated to deceive any hotel, inn or boarding-house keeper, obtain lodging and credit in any hotel, inn or boarding-house, and shall subsequently refuse to pay for his board and lodging, the person ‘so offending shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one hundred dollars, or undergo an imprisonment not exceeding three months, or both or either, at the discretion of the court. ; ’ III. By any false pretence.—The term “false pretence” is very general and includes “false token or writing,” and every extortion of. money or goods with intent to defraud. 3 Chit. Cr. L. 997. : es FALSE PRETENCES. 863 Where a carrier, falsely pretending that he had carried certain goods to A. B., demanded and thereupon obtained from the consignor 16 shillings for the carriage "of them, it was held to be within the statute. 2 Kast P. C. 672. Where the fore- man of a manufacturer, who was in the habit of receiving from his master money to pay the workmen, obtained from him by means of false written ‘accounts of the wages earned by the men, more than the men had earned, or he had paid them, it was held fo be within the act; the judges said that all cases where the false pre- tence creates the credit are within the statute. Ibid. 880. Where the defendant falsely pretended to J. N. that he was intrusted by the Duke de Lauzun to take some horses from Ireland to London for him, and that he had been detained so long by contrary winds that his money was all spent; by means of which repre- sentation he induced J. N. to advance him money: this was held to be within the act. 3 T. R. 104. So, where defendants, falsely pretending that they had made a bet with A. B. that one of them should run ten miles within an hour, prevailed upon J. N. to join them in the bet, and obtained from him 20 guineas as his share in it: held to be within the statute, though the pretence were one against which common prudence might have guarded. 3 T. R. 98. If a person obtain goods from another on giving him in payment his check on a banker, with whom in fact he has no account, this (though not indictable as a fraud at common law) is a false pretence within the meaning of the act. 3 Campb. 370. Where a man obtained goods and money for a forged note of hand for 10s. 6d., it was held to be a false pretence within the act. 2 Russ. 1395. It will not avail the defendant that the pretence consists in a false representation of something to take place at a future time, as that a bet had been laid that a certain pedestrian feat would be performed, as in the case referred to above. 3 T. R. 98. If a person procure a tradesman to sell him goods as for ready money, and direct him to send his servant with them to his lodgings, and there deliver fabricated bills in payment, retaining the goods, he may be found guilty of obtaining them under false pretences. 2 Leach 614. And a begging /etter, making false representations as to the condition and character of the writer, by means of which money is obtained, is a false pretence within the statute. 1 Eng. L. & Eq. 533. s. co. 14 Jur. 538. Every false promise or assertion made by a party with a view of fraudulently obtaining the property of another, is not, of course, a false pretence within the act ; but the false pretences in the contemplation of the statute, are such as assert the existence of some fact calculated to impose upon a man of common and ordinary caution, which false pretence creates the credit given to the accused. 2 P. 309. 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. 2 P. 817. A false pretence, within the statute, must relate 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 P. 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, per Girson, C. J. It has been held, however, not to extend to a false representation of the quality of goods, on which an advance of money is obtained, if they be the same in specie as represented. 40 Eng. L. & Eq. 589. 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. G. 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); and falsely to repre- sent the notes of a broken bank to be good. 4 Met. 48. But an indictment will not lie when the money is parted with as a charitable donation, although the pretences moving the gift be false and fraudulent, as where the defendant pretended he was deaf and dumb, and obtained alms by that means, and by a forged certificate. 17 Wend. 851. And where a person got possession of a promissory note, by pretending he wanted to look at it, and then carried it away, and refused to deliver it to the holder, it was held to be a mere private fraud, and not punishable criminally. 14 Johns. 371. ‘Tt is not necessary that the pretence should be in words; the conduct and acts 364 FALSE PRETENCKEKS. of the party will be sufficient, without any verbal assertion. 2 P. 832. 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. & 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. ; It is not necessary to allege a scienter, when the defendant must, necessarily, have been conscious of the falsity of his own statement; but the defendant may show on the trial, that he did not know that his assertions were untrue in fact. Com. v. Blumenthal, Whart. Prec., § 528, note f It is no less a false pretence because the party imposed upon might, by common prudence, have avoided the imposition. 10 H. 253. 6 ok 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. & Eq. 537, 8. 0. 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 pretence. 1 Eng. L. & Hq. 550, 8. 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 their premises for sale; and on one occa- sion, he falsely stated to the chief clerk that he had paid 2s. 3d. for kitchen stuff which he had bought for his masters, and demanded to be paid for it; whereupon the clerk paid him the amount out of money which his masters had furnished him with for that purpose; and the defendant applied the money to his own use; held, that this did not amount to larceny, bu! was a false pretence within the statute. 1 Eng. L. & Hq. 579, s. 0. 14 Jur. 1123. But a mere naked lie, in the transaction of business, does not constitute a false pretence. It must be a false statement, cal- culated 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 justify the finding of a bill [or to the justice to justify a binding over.] Judge Kine’s charge to the grand jury, Quarter Sessions, Phila., 4 February 1850. And see Vaux’s Dec. 80. Ibid. 101. Ibid. 152. But any pretence sufficient to impose on the individual to whom it is made, is an offence, if used with the intention to cheat and defraud. 2 P. 332. If the false statements were made on different occasions, it is a question for the jury whether they are so connected as to form one continuing representation. 20 Eng. L. & Eq. 588. A professed intent to do an act which the party did not mean to do, is the onl species of false pretence to gain property which is not indictable. 2 Barr 164. . representation that the party could or would do a particular act, as that he could or would get a bill discounted, though he knew he could not, is not a false pretence within the act, but rather a breach of promise, and the false pretence must be of the existence of some fact. 1 Chit. Gen. Pr. 124. 2 P. L. J. 245. IV. Any chattel, money or valuable secwrity—These words include bonds, mort- gages, promissory notes, bills of exchange, bank notes, all securities and orders for the payment of money or the transfer of goods or any valuable thing whatever. 3 Chit. Cr. L. 998. 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 260. If the defendant had obtained any money or merchan- dise, or anything of value from the prosecutor, his case would be within the provi- sions of the act; but as the receipt was for a preceding debt, if that receipt was obtained by fraudulent misrepresentations, and without value, it was neither a cheat at common law or within the statute. Paying an old debt with base coin, or a worth- less 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 FEES. : 365 the obtaining of money or goods by a false token or pretence: it was a fruitless attempt to pay and discharge an old account. Ibid. 264.(a) If the subject-matter of the charge be land and the title to it, and the depriving of the owner of it by cheating, the offence is not indictable at common law or under the statute, 7 P. L. J. 362; unless the signature of the person defrauded be ob- tained, by such false pretence, to some instrument of writing. See 8 Barr 260. 9 Eng. L. & Eq. 582. V. With intent to cheat and defraud—No indictment will lie where the false pretence, if successful, will neither clieat nor defraud; nor should an intent to defraud be even implied in such a case. Therefore, where a constable, by means of false pretences, collected the amount of a judgment from the defendant against whom it was rendered, it was hefd, that an indictment under the act of 12th July 1842, could not be sustained, because he neither cheated nor defrauded thereby, but only obtained payment of an honest debt. 8 P. L. J. 250. False representa- tions, inducing one to pay a debt he justly owes, are not indictable. 8 Hill 169. A false representation warrants the inference of an intent to defraud. 13 Wend. 87. An indictment will not lie, in New York, for obtaining money by false pretences, where the money is given in charity, though there be fraud in procuring it. 17 Werfd. 851. If the accused can show to the satisfaction of the jury that he did not know that his assertion of facts was untrue, it might avail him as a defence to the allega- tion of an intention to cheat and defraud, for that is the essence of the charge. Whart. Prec. 528, note 7, per Parsons, J. The intention to defraud must exist at the time when the credit is given. 3 P. L. J. 228. —<——— Sees. I. Fees of aldermen, justices and con- refuge. stables. IV. Fees in cases of vagrancy. II. Fee-bill of 1814. V. General provisions and authorities. All. Fees upon commitments to a house of - [."Frxs are certain perquisites allowed to officers who have to do with the administration of justice, as a recompense for their labor and trouble. Bac. Abr. The fees of aldermen, justices of the peace and constables, in this state, (with the exception of: certain counties,) for their services in civil and criminal cases, are fined and regulated by the fee-bill of 1857. Aor 18 Aprrt 1857. Purd. 465. Szor. 1. The fees to be received by aldermen and justices of the peace shall be as follows: Dolls. Cts. For information or complaint on behalf of the commonwealth, for every ten words ; ‘ : I Docket entry of action on behalf of the commonwealth . ‘ ; : 10 Warrant or mittimus on behalf of the commonwealth ji . 25 Writing an examination or confession of defendant, for every ten words 1 Administering oath or.affirmation - 2 ‘ ‘ ‘ i ‘ , 3 Taking recognisance, in every criminal case : : ‘ ‘ r 20 Transcript in criminal cases, including certificate 15 Returning the same to court, for each mile circular actually travelled, to be allowed in only one case at each session of the court . ; i : 3 Entering judgment on conviction for fine . j 3 : . . 10 Recording conviction, or copy thereof, for every ten words ‘ ‘ 3 1 (a) And see 9 Eng. L. & Eq. 532, that this were written on a stamp produced by the would not be larceny, although the receipt prisoner. 866 FEES, Warrant to levy fine or forfeiture. . . ‘ Bail-piece and return, or pee : . Discharge to jailer . . . Entering discontinuance in cases of assault and battery . Entering complaint of master, mistress or apptentice . Notice to master, mistress or apprentice . Hearing parties and discharging complaint Holding inquisition under landlord and tenant act, « or in case of forcible entry, for each day, to each justice ‘ ‘ ‘ ; . ‘“ Precept to sheriff for each justice . : 5 ‘ a) OS : Recording proceedings, to each justice . ‘ ‘ : . : 7 Writ of restitution, to each justice . : 7 . . : 3 : Warrant to appraise damages . : : - . . . : Warrant to sell strays 3 : : oo . - . : Warrant to appraise swine . . . . Receiving and entering return of appraisement of ewine 7 . ‘i ‘ Publishing proceeding of appraisers of swine . . ‘ ; . Entering action in civil case. , ; ; : . . Summons, capias, or subpoena, each : el é . . . For every additional name after the first . All witnesses’ names to be put in one subpeena, unless separate subpoenas be requested by the parties ‘ a ‘ : si . : 3 Subpcena duces tecum es . : Entering return of summons and qualifying constable . : - . Entering capias and bail-bond . : ; ‘ z ‘ . Every continuance of suit , Trial and judgment in case of defence made by defendant or defendants Entering judgment by confession Investigating plaintiff’s claim and entering judgment by default Taking bail Entering satisfaction, to be charged only when an actual entry’; is made on the docket . : : , ; ; ‘ : ; : : Entering discontinuance . . ‘ ‘ a , - ‘ Entering amicable suit . 3 2 ‘ . Entering rule to take depositions of witnesses Rule to take depositions . Interrogatories annexed to rules for taking depositions for every ten words Entering return of rule . : gi . ; : . Entering rule to refer. : ‘ ; , . : : . . Rule of reference . . : j : : ‘ ‘ atm e . Notice to each referee. ; - : : , . Entering report of referees and judgment thereon : 5 . . . Written notice to a party in si case . Sach) “Ke . . . . Execution. i . ‘ ; : ‘ . . Entering return of execution . ; . ‘ ‘ . . : . Scire facias in any case. ; a ‘ ‘ ‘ : ‘ ‘ Opening judgment for rehearing ; : ‘ : : . . Transcript of judgment and certificate : is Return of proceedings on certiorari or appeal, including recognisance . Receiving the amount of a judgment before execution, ‘and PATE the same over, if not exceeding ten dollars . F If exceeding ten, and not exceeding forty dollars If exceeding forty dollars Every search where no service is rendered, to which any fees are attached . Entering complaint in writing in case of attachment, and Cie or affirm- ing complainant . j . : : . ‘ : Attachment . ‘ bn “ots : : . ‘ Entering return and appointing frecholders : : ; ; . . Advertisements, each ; i . 5 ; , ' Dolls. Cte, 2 fet Ai a FEES. 367 Dolls. Cte. Order to sell goods . . . . a 10 Order for the relief of a pauper, each justice . : . . 20 Order for the removal of a pauper, each justice. —. ; 50 Order to seize goods for the maintenance of wife and children, 25 Order for premium for wolf or fox or other scalps, to be paid by the proper county 15 Every acknowledgment or r probate of deed, or other {instrament of writing 20 Taking and signing acknowledgment of indenture of an Sppreaueey, for each indenture a A ‘ ‘ 20 Assignment and making record of indenture : 20 Cancelling indenture. wl 10 Comparing and signing tax duplicates, each justice : 50 For marrying each couple, making record thereof, and certificate to the parties 00 Certificate of approbation of two justices to the binding as ee of a person by overseer or directors of the Poe each ane 25 Certificate to obtain land warrant 50 Swearing or affirming county commissioners, assessors or other township or or county officer, and certificate thereof, to be paid by the county . 25 For administering oaths or affirmations, in any case not herein provided for . 10 For issuing precept to lessee, in landlord and tenant pee each jus- tice (a) : 15 For hearing and determining complaint, and all (ia) other services rendered therein ‘ , 50 For recording proceedings therein, each 25 For issuing and receiving returns of writ of restitution, including entry thereof, each justice 25 Szor. 2. Fees for services under the laws of the United States, shall be as follows, namely : For certificate of protection . ; : - : . . 50 For certificate of lost protection i - : 3 . . 25 Forawarrant. . ©. 2 6 eee eee For commitment : ; 25 Summons for seamen in admiralty case : ‘ ‘ . : 25 Hearing thereon, with docket entry . : : 3 50 Certificate to clerk of district court to issue admiralty process . 25 Srcr. 3. The fees to be received by constables, shall be as follows: For executing warrant in behalf of the commonwealth : 40 Conveying to jail on mittimus or warrant, arresting a vagrant, disorderly per- son, or other offender against the laws, (without process,) and bringing ‘before justice, levying fine for forfeiture on warrant ‘ 25 Taking the body into custody on mittimus where bail is afterwards entered before the prisoner is delivered to jailer : 5 : . ji 20 Serving subpoena 10 Serving summons, notice ‘to referee, suitor, master, mistress or apprentice personally or by copy, each . . . : : , j ‘ 10 Executing attachment ; : . , ‘ 30 Arresting on capias . ; 25 Taking bail-bond on capias, or for delivery ‘of goods : 15 Notifying plaintiff, where defendayt has been arrested on capias, to be e paid by plaintiff ; 10 Executing landlord’s warrant, or ‘serving execution i : 25 Taking inventory of goods, each item j 1 Levying or distraining goods and selling the same, for each dollar not exceed- ing thirty ., 5 : : ‘ f 5 For each dollar above thirty’ 3 And one-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 (2) By act 22 March 1861, proceedings by a landlord to recover possession, may be tried before a ene Justice. Purd. 615. 368 FEES. Dolla. Ota. on more than the real debt, and then only for the money actually received by the constable, and paid over to the creditor. Advertising the same . : F ; ‘ . 40 Copy of vendue paper when demanded, each item 1 Putting up notice of distress at mansion-house or other public place on the premises. : 3 : ; 5 . 1 Serving scire facias personally ‘ : . 3 ‘ ‘ : . 10 Serving same by copy. ‘ ; . 15 Serving rule and interrogatories in attachments of execution . . 20 Executing bail-piece i 20 Travelling expenses on an execution returned nulla bona and non est inventus, where the constable has been at the a of defendant’s last residence, each mile circular 5 ; : ; ; oe 3 Executing order for the removal of a | pauper ‘ : ; ‘ . . 650 Travelling expenses in said removal, each mile circular. 10 Travelling expenses in all other cases, for each mile circular, actually travelled, counting from the office of the justice to the place of service : 3 For making returns to the court of quarter sessions of the proper county, fifty cents each for one day . : 50 Mileage for same, counting from residence of constable to the county seat, to be paid by county, three cents per mile circular 3 For appraisement, and all other eho under exemption act of 9th. April 1849 . : : : . 100 For serving precept and returning same in landlord and tenant proceeding . 25 Executing writ of possession and returning same . 50 When the rent shall be received from the lessee by the constable, such commission as is now allowed by law on writs of execution. II. The fee-bill of 1857 is not in force in the counties of f Philadelphia, Alle- gheny, Lancaster and Washington; in these counties, the fees of justices, alder- men and constables are regulated by the fee-bill of 1814. Act 28 Maron 1814. Purd. 467. Sect. 14. The fees to be received by aldermen and justices of the peace, shall be as follows : For information or complaint on behalf of the commonwealth, for every ten words : a . a | Docket entry of action on ‘behalf of the commonwealth : ; . 12% Warrant or mittimus on behalf of the commonwealth . : 25 Writing an examination or confession of defendant, or a deposition, for every ten words . : ‘ ; ; : : : &. Administering any oath or affirmation : . 6 Taking recognisance in any criminal case, and returning the same to court . 20 Entering judgment on conviction for fine . : 3 : . 123 Recording conviction or copy thereof, for ore ten words . . . . il Warrant to levy fine or forfeiture . ’ ; 7 ‘ . . 25 Bail-piece and return, or nero : : : ‘ ; . . 49 Discharge to jailer : i . 19 Entering discontinuance of case of assault, and battery i . . 25 Entering complaint of master, mistress or apprentice. . . . 123 Notice to master, mistress or apprentice i : : : : . 19 Hearing partics and discharging complaint ‘ ' ; . 25 Holding aaa under landlord and tenant act, or in case ‘of forcible entry, eac : . . : : 1 50 Precept to sheriff ; : : ; 50 Recording proceedings . : . ; . 1 00 Writ of restitution 3 . ; . ‘ . e . 50 Warrant to appraise damages. ‘ c : : . ; . 25 Warrant to sell strays ‘ . ; : . i ei . 25 FEES. — 369 Dolls. Cts, Warrant to appraise swine, entering return, sa VeTEAINE, &. = . 1 00 Entering action in civil case. ; : . ‘i 2 . 124 Summons, capias, or subpena,each . www ee For every additional name after the first . . 3 All witnesses’ names to be put in one subpena, unless separate ‘subpoenas be shall be required by the party. Subpena duces tecum ey ee « » 19 Entering return of summons and qualifying constable : F i . 123 Entering capias and bail-bond . ‘ : ‘ . , . 6 Every continuance of a suit. ; . ‘ 5 ‘ . . 6 Trial and judgment . SS. Sh, Sk a ts ae Entering judgment by confession ‘ i. . 5 . , . 124 Taking special bail . ‘i wl 7 Hi . . ‘ - 124 Entering satisfaction ‘ . ; . 3 < . A . 6 Entering amicable suit . : fo Me ; ' - 12% Entering rule to take deposition ‘of witnesses . . . . A . 6 Rule to take depositions . : ; . . . : : . 123 Interrogatories, for every ten words . oO F ‘ ‘i a « od Entering return of rule. . ; . 3 . A 5 ‘ - 6 ‘Entering rule to refer. ; : . ‘ e. 4 . . + 123 Rule of reference. s ; . i i . . ‘ . 123 Notice to each referee : : . 2 . . . : F » 6 Notice to a party in any case. ‘ . . . . 123 Entering report of referees and judgment thereon. 3 : : . 124 Execution 19 Entering return of execution on stay of plain, nulla bona ‘and non est in- ventus, or otherwise : j : . ; ; . 123 Entering satisfaction or discontinuance. F 7 ‘ : i . 6 Scire facias, in any case . : ; ‘ , . , é - 25 Opening judgment for rehearing : : ‘ . 12% Certificate to prothonotary, or copy of judgment i in each case ‘ . 25 Return of proceedings on certiorari or appeal, including recognisance . . 50 Receiving the amount of a judgment before execution, or where an execution has issued and special bail has been afterwards entered within twenty days after judgment, and paying the same over, if not exceeding ten dollars . 12% If above ten and not exceeding ae dollars . : ‘ . : . 25 If above forty dollars 3 * 37% Every search where no other service is rendered, to which any | foe or fees are attached 3 . 123 Entering complaint in writing in case of attachment, and d swearing or rafirming complaint . . 19 Attachment. : : . ; . - 25 Wntering return and setting frecholders ; oe ; : . 12% Advertisements, each : : P j . ; - 12% Orders to sell goods . i ‘ ‘ : : ; : ‘ , . 19 Order for relief of a pauper. . . : : id, ck - « 2 Order for removal of a pauper . : : z 1 00 Order to seize goods for maintenance of wife or children. - 25 Order for premium for wolf or fox scalps, to be paid by the proper county . 12% Every acknowledgment or probate of a deed, or other instrument of writing . 25 Taking and signing acknowledgment of indentures of an eppeenaless for each indenture . : : . 25 Assignment and making record of indenture 3 : ‘ . ; . 25 Cancelling indenture : i ‘ ‘ : i . 12% Comparing and signing tax duplicates. 50 Marrying each couple, making record thereof, and certificate to the parties 2 00 Certificate of approbation of two justices, to ‘the enue an meppreniioe of a person by overseer or direetor of the poor 50 - 24 370 FEES. Dolls. Certificate to obtain land warrant Swearing or affirming county commissioner, assessor or other ‘township officer, and certificate thereof, to be paid by the county 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 a certificate of protection . : For certificate of lost protection ‘i ‘i For a warrant . i ‘ , For commitment : ‘ Summons for seamen in admiralty case . Hearing thereon, with docket entry Certificate to clerk of district court to issue admiralty process Srct. 15. The fees to be received by constables, shall be as follows, viz.: Executing warrant on behalf of the commonwealth ; a Conveying to jail on mttimus or warrant Arresting a vagrant, disorderly person, or other offender against the ‘laws, (without sheer and bringing before a justice . . . . . Levying fine or forfeiture on a warrant Taking the body into custody on mittimus, where pail i is afterwards entered before the prisoner is delivered to the jailer 5 Serving subpena Serving summons, notice on referee, suitor, master, 1 mistress or apprentice personally, each. é . ‘ . Serving by leaving a copy : ‘ , i , z ‘ es Executing attachment : . . . Taking bail-bond on capias, or for delivery of goods Arresting on capias . Notifying plaintiff where defendant has been arrested on capias, to be paid by plaintiff . LE Executing landlord’s warrant, or "serving execution Taking inventory of goods, each item Levying or distraining goods, and one the same, e, for each dollar not exceed- ing thirty ; 5 . . For each dollar above thirty : . And one-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 : . . . ‘ . Copy of vendue paper, when demanded, each item ‘ Putting up notice of distress at mansion-house or other public place o on the premises ; ; . : Serving scire facias, personally . Serving by leaving a copy Executing a bail-piece Travelling expenses on an execution returned nulla bona and non est inventus, where the constable has been at the oe of defendant’s last residence, each mile circular 4 Executing order for the removal of a pauper ‘ i : Travelling expenses in said removing, each mile circular. : ‘ Travelling expenses in all other cases, each mile circular Cts. 50 25 50 25 25 25 25 50 35 374 374 374 25 25 124 123 123 12% 25 123 25 374 1 124 124 124 25 3 50 10 The fees of justices and constables for proceedings under the landlord and tenant act, are the same as those fixed by the act of 1857. Purd. 468. JIT. The fees of aldermen, justices and constables upon commitments to a house of refuge, are fixed by the act 21 April 1855, (Purd. 468,) as follows :— To any constable or officer for arresting the person committed To the alderman or justice of the peace directing the commitment To the constable or other officer delivering the person committed, pursuant to such commitment, at the proper house of refuge. . . ‘ ' 50 50 -100 FEES. 871 With mileage at the rate of five cents circular for all distances travelled: said fees and mileage to be paid by the county in.which the commitment is made: Provided, That no allowance for mileage shall be made, unless the distance travelled shall exceed seven circular miles. IV. Cases of vagrancy are criminal proceedings, and the fees of justices and constables are the same as those in other criminal proceedings. In the counties of Lancaster [and Dauphin,] however, they have been regulated by the act 2 April 1860, (P. L. 586,) as follows :(a) Sxor. 1. All fees to be received by any mayor, alderman or justice of the peace, in the county of Lancaster [or Dauphin,] in any vagrant case, where the alleged vagrant is discharged, shall be .twenty cents; and where he is committed to the county prison, twenty cents in addition. Szcr. 2, All fees to be received by any constable, in said counties, in any vagrant case, shall be as follows: for arresting the alleged vagrant, and bringing him before a justice, twenty cents; conveying to jail, twenty-five cents, with the mileage heretofore allowed by law. V. The act 28 March 1814, provides that 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 par- ticulars, as prescribed by this act, signed by him, if required; and also a receipt or discharge, signed by him, of the fees paid. Purd. 473. The act 18 March 1816, provides that 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 execution, he shall be allowed to receive, take or retain com- missions or poundage on the amount of the sum by him actually recovered or received, and no more. Purd. 473. By act 22 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 to 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. 473. The same act provides that it shall be lawful for the recorder of deeds and register of wills to receive the fees for recording the same at the time the deed or deeds, will or wills, are left. at his‘ office for recording. Ibid. The act 24 April 1829, authorizes justices, on the issuing of an execution, to indorse thereon for collection the fees for the return thereof, as well as for issuing the same. Purd. 602. And by act 11 April 1850, it is provided that nothing in the act of 1814 shall be deemed to impose on any sheriff, deputy-sheriff or con- stable, 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. 473. It seems the plaintiff is liable to the officers for their fees where they cannot be procured from the defendant. 4 B. 147. An indictment [or a civil proceeding] 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. 5S. & R. 373. 5 P. L. J. 426. 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 defendant 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 investigating the plaintiff’s claim, and entering judgment by default, for which the fee-bill allows but 124 cents. 3 P. R. 519. “T incline to the belief that a justice may, in some cases, charge two judgment fees: as in case of a judgment by default, opened for (a) See act 21 March 1861, P. L. 173, for vagrant cases; act 1 May 1861, P. L. 457, in their fees in Cumberland county, in cases of the cities of Pittsburgh and Allegheny; and vagrancy or intoxication; act 29 March 1861, act 5 April 1862, P. L. 252, as to Dauphin P. L. 281, for their fees in Berks county, in county. 872 FEES. a ‘rehearing, and judgment again rendered on trial; a defence having been made.” Per Rogzrs, J. Ibid. ae The act 21 March 1772, which requires notice in writing to be given to a justice, thirty days before suing out a writ against him, for anything done in theexecution of his office, should be liberally construed for the protection of justices of the peace. 4 B. 24. 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. 17 8S. & R. 75. a) 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. The recorder of deeds, under the fee-bill of 28 March 1814, can only charge 374 cents for a certificate and seal, and cannot add to it the charge of 124 cents for a search to enable him to give the certificate. If he exact payment for the latter charge, he incurs the penalty of fifty dollars imposed by the 26th section of the before-mentioned act of assembly. 4 R. 162. There is nothing in the fee-bill that allows a sheriff or constable costs for employ- ing a watchman to take charge of property ; and when objected to by the defendant on an execution, it must be disallowed. 2 P. 118. A justice of the peace, in a criminal case, can only charge for one recognisance from the defendant and his surety, and one from the prosecutor and his witnesses. 1 Ash. 110. 178. & R. 75. He is entitled to a fee for a recognisance for a further hearing. Wood v. Elkin- ton, Com. Pleas, Phila., 8 December 1847. On binding over a defendant, he has no right to take from him any fees, beyond those for the recognisance, and the commitment and supersedeas ; and then only, if such services be actually performed. 5 P. L. J. 457. He is not liable to the penalty for taking illegal fees, in consequence of having charged, in his bill of particulars, for an execution, the aggregate sum allowed for an execution and return, if intended to include both services. McHenry v. White, Com. Pleas, Phila. 1 December 1847. A justice is only entitled to a fee of 20 cents, for a copy of the proceeding in a case before him; and if he charge or demand a greater amount, he renders himself liable to the penalty for taking illegal fees. 9 C. 190, A constable, for serving a subpoena from the court, is entitled to the same fee as the sheriff; for in such case, he acts as a sheriff’s officer. 1 Br. 274. [873 | Female. Aor 3 Fresruary 1819. Purd. 36. Sxcr. 1. No female shall be arrested or imprisoned, for or by reason of any debt contracted after the passing of this act. This provision as to the exemption of females from imprisonment for debt, was re-enacted by the 6th section of’ the act of 13th June 1836. P. L. 573. Women are not relieved from arrest for debt by the act of 12th July 1842, but by that of 1819; and therefore, a warrant of arrest cannot issue against a female under the act of 1842. Morris v. Hofheimer, District Court, Phila., 6 June 1860. MS. Nor can an attachment be issued against a female: trustee to compel payment of the trust funds in her hands. 1 Ash. 373. —+———— Feme Sole Craver. I. Who to be deemed feme sole trader. to be feme sole traders. . II, When married women may be decreed III. Judicial decisions. I. Act 22 Fepruary 1718. Purd. 474. Sxzor. 1. Where any mariners or others are gone or hereafter shall go to sea, leaving their wives at shop keeping, or to work for their livelihood at any other trade in this province, all such wives shall be deemed, adjudged and taken, and are hereby declared to be, as feme sole traders; and shall have ability and by this act . are enabled to sue and be sued, plead and be impleaded at law in any court or courts of this province, during their husbands’ natural lives, without naming their hus- bands in such suits, pleas or actions; and when judgments are given against such wives, for any debts contracted, or sums of money due from them, since their husbands left them, executions shall be awarded against the goods and chattels in the possession of such wives, or in the hands or possession of others in trust for them, and not against the goods and chattels of their husbands; unless it may appear to the court, where those executions are returnable, that such wives have, out of their separate stock or profit of their trade, paid debts which were contracted by their husbands, or laid out money for the necessary support and maintenance of themselves and children, then and in such case execution ‘shall be levied upon the estate, real and personal, of such husbands, to the value so paid or laid out, and no more. II. Aor 4 May 1855. Purd. 474. Szcr. 2. Whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader, under the act of the 22d of February 1718, entitled “ An act’ concerning feme sole traders,” and be subject as therein provided, and her property, real and personal, howsoever acquired, shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin, as if he were previously dead. Sort. 3. Whensoever any husband or father, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his child or children, the mother of such children shall have all the rights and be entitled to claim, and be subject to all the duties reciprocally due between a father and his children, and she may place them at employment and receive their earnings, or bind them to apprenticeship without. the interference of such husband, the same as the father can now do by law: Pro- vided. always, That she shall afford to them a good example, and properly educate and maintain them according to her ability: And provided, That if the mother be of unsuitable character to be intrusted as aforesaid, or dead, the proper court may 874 FENCES. appoint a guardian of such children, who shall perform the duties aforesaid, and apply the earnings of such children for their maintenance and education. Sror. 4. That creditors, purchasers and others may, with certainty and safety, transact business with a married woman under the circumstances aforesaid; she may present her petition to the court of common pleas of the proper county, setting forth under affidavit the facts which authorize her to act as aforesaid, and if sus- tained by the testimony of at least two respectable witnesses, and the court be satis- fied of the justice and propriety of the application, such court may, upon such notice as they may direct, make a decree and grant her a certificate, that she shall be authorized to act, have the power and transact business as hereinbefore provided ; and such certificate shall be conclusive evidence of her authority, until revoked by such court for any failure on her part to perform the duties by this act made incumbent upon her, which may be ascertained upon the petition of any next friend of her children. IIL.’ There is no Jeme sole trading in Pennsylvania, but such as falls within the acts of assembly. 6 W. & S. 346 . A married woman cannot claim the status of a feme sole trader, under the act of 1855, unless she has been so decreed by the proper court. 3 Phila R. 508. A friend of a family (the husband being insolvent) may furnish money to the wife, in trust, to be employed in business for the benefit of the family, the husband acting as agent, without exposing the property to the creditors of the husband. 1 Wr. 247. And a stranger may purchase the husband’s stock in trade, at a judicial sale, and make gift of it to the wife, with like effect. 19 Leg. Int. 204. ‘But where a merchant failed in business and became insolvent, and after his failure and insolvency, his wife commenced business in her own name, purchasing goods, at first, on the indorsements and guarantees of her husband’s father, and continued the business for some years with capital loaned to her by the same party, the husband transacting all the business in the wife’s name; it was held, that the stock of goods so held in the wife’s name was liable to execution at the suit of the husband’s creditors. 11 C0. 375. A feme sole trader may be sued, without naming her husband, for debts con- tracted, either in the course of her trade, or for the maintenance of herself and children, whether the same be by special contract, or by specialty. 28. & R. 189. And she can maintain an action in her own name, for a distributive share of her ancestor's estate. 2 Br. 193. — Fences. I. How fences to be constructed. III. Penalty for maliciously destroying fences. II. Division fences. IV. Authorities and decisions. I. Aor or 1700. Purd. 475. Sec. 1. All cornfields and grounds kept for inclosures, within the said province and counties annexed, shall be well fenced, with fence at least five feet high, of sufficient rail or logs, and close at the bottom; and whosoever not having their ground inclosed with such sufficient fence as aforesaid, shall hurt, kill or do damage to any horse, kine, sheep, hogs or goats of any other persons, by hunting or driving them out of or from said grounds, shall be liable to make good all damages sustained thereby to the owner of the said cattle. II. Act 11 Marca 1842. Purd. 475. Secr. 3. When any two persons shall improve lands adjacent to each other, or where any person shall inclose any land adjoining to another’s land already fenced in, so that any part of the first person’s fence becomes the partition fence between - them, in both these cases the charge of such division fence, so far as is inclosed on both sides, shall be equally borne and maintained by both parties. Sxcr. 4. On notice given, the said [fence] viewers shall, within five days there- FENCES. 875 after, view and examine any line fence as aforesaid, and shall make out a certificate in writing, setting forth whether in their opinion the fence of one has been already built, is sufficient, and if not, what proportion of the expense of building a new or repairing the old fence, should be borne by each party, and in each case they shall set forth the sum which in their judgment each party ought to pay to the other, in case he shall repair or build his proportion of the fence, a copy of which certificate shall be delivered to each of the parties; and the said viewers shall receive the sum of one dollar for every day necessarily spent by them, in the discharge of their duties, which they shall be entitled to receive from the delinquent party, or in equal sums from each, as they shall decide to be just. Sucr. 5. If the party who shall be delinquent in making or repairing of any fence, shall not, within ten days after a copy of the certificate of the viewers shall have been delivered to him, proceed to repair or build the said fence, and complete the same in a reasonable time, it shall be lawful for the parties aggrieved to repair or build the said fence; and he may bring suit before any justice of the peace or alder- man against the delinquent party, and recover as in other actions for work, labor, service done and materials found, and either party may appeal from the decision of the justice or alderman, as in other cases. Szor. 6. The said viewers shall not be called out to view any fence between the 1st.day of November and the 1st day of April of the next year. Szor. 7. If any viewer shall neglect or refuse to perform any duty herein enjoined upon him, he shall pay for each such neglect or refusal the sum of three dollars, to be recovered by the party aggrieved as debts of a like amount are re- coverable. Secor. 8. A majority of the viewers in each township shall be a quorum, and shall have power to do all the duties herein assigned.(a) III. Act 14 Aprit 1851. Purd. 475. Sor. 12. 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 inclosure of lands, and carry away, break or destroy any post, rail or other ma- terial of which such fence was built, within this commonwealth, every person or persons so offending, and being legally thereof convicted before any justice of the peace or alderman 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 payment, 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: Pro- vided, That either of the parties shall have the right of appeal in the same manner as in civil cases. . IV. The duties of fence viewers are to be performed by township and borough auditors. Purd. 475. It is not essential, that, in addition to their oath as auditors, they should take an official oath, as fence viewers. 8 H. 138. One of the owners of adjacent wnimproved lands cannot call upon the other to contribute to the charge of a division fence between them. 8 C. 65. An occupant is not bound to join in a division fence; he may set his fence, if it please him, not on the line of division, but within it; and if his neighbor ex- tend his fence across the line to join it, it-is a trespass. 2 Barr 488. So, a party who, on the destruction of a partition fence, by accident, recedes from the former line, and erects a fence on his own land, is not bound to maintain the former fence. 2 Barr 126. 6 H. 367. Either owner of adjoining lands may, at pleasure, erect a partition fence, and the occupation of his neighbor’s land for that purpose is not adverse; when the charge assessed by the fence viewers is answered, it becomes common property. 2 Barr 488. Where there is only a line between the lands of parties, each has a right to insist upon a common partition fence along it. 3 C. 95. (a) See act 11 March 1862, as to fence viewers in Philadelphia. Purd. 1276. 376 FENCES. The act of 1842, does not entitle a land-owner to five days’ notice, previous to the meeting of the fence viewers; but five days’ notice must be given to the viewers. 8 H. 138. The owner is entitled to notice of the meeting of the viewers; but want of notice cannot be alleged, if he were present at the view, without objecting to the omission to give him previous notice of it. Ibid. The certificate of the viewers is not invalid, because it may require oral testi- mony to sustain it. But if it be void for uncertainty, the party's remedy is not gone; he may still recover for work and labor in erecting the defendant’s portion of the fence, by proving otherwise its necessity and value. Ibid. No appeal lies from the decision of the fence viewers. 11 H. 37. Where there is, in fact, a partition fence, the duty of contribution to maintain it exists; and neither party can excuse himself from this duty by alleging that the line is in dispute. The jurisdiction of a justice, under the fence law, to enforce contribution, is not ousted, by raising a question of title to the land. 1 C. 78. The removal of a fence under a claim of right, is not within the purview of the act of 14th April 1851. 2 C. 187. The act of 1700 does not require the owner of land, inclosed by an insufficient fence, to permit trespassing cattle to remain in his fields ; it only gives damages to the owner of the cattle for any injury done to them, in driving them out of the other party’s grounds. If he drive them into the highway, without injury, he is not responsible for any damage they may subsequently sustain without his default. 8 C. 65. A railroad company is not bound to fence its road against trespassing cattle. An owner of cattle suffered to go at large, and which are killed or injured on a railway, has no recourse against the company, or its servants; on the contrary, he may be liable for the damage done by them to the company or the passengers. 7 H. 298. See 6 C. 240-1. ; Where one party insists upon a partition fence being made, and makes his share of it, and the other, refusing to put up his part, is injured by the cattle of the other going upon his land, in consequence of the fence not being made, the injury being the result of his own negligence, he cannot maintain an action for the dam- age thereby sustained. 30.95. A division fence between adjoining owners of land, of more than twenty-one years’ standing, although crooked, constitutes the line between them, even though a of both parties call for a straight line between acknowledged points. 4 [ 877 ] Ferries. I. Cutting « ferry-rope made penal, and _—II. Information-and warrants against vio- the owners, on request, to sink their lators of this law. ropes, to allow vessels to pass. III. Flats with sails to strike their masts. I. Act 8 Fesrvuary 1766. Purd. 476. Sect. 1. 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 any vessel to pass, shall, on conviction, forfeit and pay ten pounds. II. INFORMATIONS AND WARRANTS. INFORMATION FOR CUTTING THE ROPE OF A FERRY. MONROE COUNTY, ss. eg Tuz information of B. J., of Monroe 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 1860, who saith, 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, laborer, 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 ahd subscribed before J. R., Justice of the Peace. WARRANT FOR CUTTING A FERRY ROPE. , MONROE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of U M——, in the county of Monroe, greeting : Wuereas, B. J., of Monroe 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. o. and saw a certain J. H., of the same county, laborer, with an axe cut the rope stretched across the said creek, at the said ferry, and used in drawing the boats carry- ing travellers over the same. You are, therefore, hereby commanded to take the said J. H. 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., at U-—- M—— township afore- said, the 10th day of April, a. p. 1860. J.R., Justice of the Peace. [sat.] Norz.—The defendant being brought before the justice must be dealt with as other ‘persons charged with penal offences. He must be discharged, give bail for his appear- ance, 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. MONTGOMERY COUNTY, ss. Tue information and complaint of A. B., of Montgomery 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. p. 1860, who saith that on the 8th day of April inst. he was coming down the river Schuylkill in a shallop loaded with grain, that when he came opposite to the ferry owned and oceupied by T. C., he requested 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. C. absolutely refused so to do. And further saith not.. (Signed,) A.B. Affirmed and subscribed before J. R., Justice of the Peace. WARRANT AGAINST THE KEEPER OF A FERRY, MONTGOMERY COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of U-—- M——, in the County of Montgomery, greeting: : 378 FERRIES. Wuenrzas, A.B,, of Montgomery 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 requested 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, C. absolutely refused so to do. ; These are, there- fore, to require 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. p. 1860. J: R., Justice of the Peace. [suat.] Norz.—The 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 pro- duced. III. Act 8 Fesruary 1766. Purd. 476. Sect. 2. All flats or boats passing up and down any river or creek, if navigated 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 1st section. INFORMATION AGAINST THE MASTER OF A SAIL-BOAT. MONTGOMERY COUNTY, ss. / Tux information and complaint of A. B., of Montgomery 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 1860, 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 Berks 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, ) . B. Sworn and subscribed before J. R., Justice of the Peace. ‘ WARRANT. MONTGOMERY COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Borough of N——, in the County of Montgomery, greeting: Wuergas, A. B., of Montgomery 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 morn- ing C. D., of Butler 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., at U—— M—— aforesaid, the tenth day of April, a. p. 1860. J. R., Justice of the Peace. [szat.] Nors.—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. [ 379 ] Firing of Guns, Fireworks, Ke. I. Provides penalties for setting off, or ex- III. Who shall be answerable for firing, &c., posing for sale, fireworks, &c. in houses. II. Penalty for firing guns, &., at certain IV. The duty of a constable under this act. times. I. Acr 26 Avaust 1721. Purd. 483. Sect. 4. Provides, that if any person shall fire any gun or other firearms, or shall make, or cause to be made, or sell, or utter, or offer to expose to sale, any squibs, rockets or other fireworks, or shall cast, throw or fire any squibs, rockets or other fireworks, within the city of Philadelphia, without the governor’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 distress, 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 9th 1750-51 (Purd. 483), the provisions of the above section are extended over every town or borough in the state. ] II. Acr 24 Ducumper, 1774. Purd. 484. Szor. 1. 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 reasonable occa- sion, discharge and fire off any hand gun, pistol, or other firearms, or shall cast, throw, ‘or fire any squibs, rockets or other fireworks, within the inhabited parts of this province, [state,] every person so offending, and being thereof convicted, before any justice of the peace, shall, for every such offence, 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. Szcr. 2. 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 firearms, or to cast, throw or fire any squibs, rockets or other fireworks as aforesaid, every person so offending, and being con- . vieted, shall, for every such offence, forfeit and pay, for the use aforesaid, 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 offence as above to a justice, or the court of quarter sessions, together with the names of the offenders. Every offence against this act must be prosecuted within four months.] Firing of Goods. I. Firing the woods—how punished. Il. Forms.of informations, warrants, orders, executions, and docket-entry. I. Aor 18 Aprin 1794. Purd. 484. WuHeEreas, 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 improve- ments within the state: Therefore, 380 FIRING OF WOODS. Sxcr. 8. 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 pre- sent, to view the place or things damaged, or inquire into the loss sustained by the plaintiff, and to certify to the said justice, upon their oaths or affirmations, what damage, in their judgment, the plaintiff hath sustained by occasion 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 ccets of prosecution. ' [The party has a right to appeal from the judgment of the justice to the next court of common pleas. ] II. Forms oF INFORMATIONS, &o. INFORMATION FOR HAVING SET THE WOODS ON FIRE. MERCER COUNTY, ss. Tax information of A. B., of Mercer 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. p. 1860, who saith 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 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 he 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, 1860. WARRANT AGAINST ONE FOR HAVING SET THE WOODS ON FIRE. MERCER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of U-—- M——,, in the County of Mercer, greeting: Wuereas, A. B., of Mercer 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. V township, in the said county, and saw T. C., of the same township, innkeeper, passing through the same woods with fire and 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 that he was going to kindle a fire, as he expected to be out all night hunting; that the next day -this informant heard thatthe said woods were on fire, and a great part consumed, and verily believes that they were set on fire by the said T. C. fon 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. p, 1860. J. R., Justice of the Peace. = [szat.] WARRANT AGAINST ONE FOR DAMAGE DONE BY SETTING FIRE TO THE WOODS. MERCER COUNTY, ss. / The Commonwealth of Pennsylvania, To the Constable of U-- M——- Township, in the County of Mercer, greeting: We command you, that you take T. C., of the township aforesaid, innkeeper, and bring Lim 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 trespass, for his loss or damage, not exceeding fifty dollars, occasioned by the said T. C. setting on fire certain woods within the township aforesaid, contrary to the act of the general pens in such case made and provided. Hereof fail’ not, Witness the said J. R., at U— M—— township aforesaid, the 10th day of April, a. D. 1860. : J. R., Justice of the Peace. [szaL.] WARRANT TO FREEHOLDERS, TO ESTIMATE DAMAGES FROM FIRE IN THE WooDs. MERCER COUNTY, ss. To L. M., and N. O., and P. Q,, all of U— M—— Township, in the County of Mercer: Wuerzas, 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 J. B. of a plea of trespass FIRING OF WOODS. 38] 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. C. is guilty of the charge exhibited against him by the said J.B. You are, therefore, com- manded, in the presence of the said T. C., if he will be present,.to view the place or things damaged, and inquire into the logs 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 afore- said, the 13th day of April, a. p. 1860. J. R., Justice of the Peace. [szaL.] RETURN OF THE FREEHOLDERS. To J. R., Esquire, one of the justices of the peace of the County of Mercer: MERCER COUNTY, ss. In pursuance of es warrant of the 13th instant, we do now return that we have, in the 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 woods in the neighborhood of the said fences, and do certify upon our oaths that the said J. B. hath sustained damage thereby to the amount of twenty-eight dollars. Witness our hands the 15th day of April, a. p. 1860. (Signed,) L. M. SEAL. : > N. 0. SEAL. P.Q. SEAL. EXECUTION FOR DAMAGES FROM FIRE IN THE WOODS. MERCER COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the township of U-—- M-—, in the County of Mercer, greeting: Wuereas, 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 twenty- five 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 indorse hereon the time you make your levy, and hereon, or on a schedule hereto annexed, a list of the same, and within twenty days thereafter expose the same to sale by public vendue, 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 ou take the body of the said T. C. and convey him to the jail of the said county, there to he 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. p. 1860. Witness the said J. R., at U. M—— township aforesaid, the 20th day of April, a. p. 1860. J.B. , Justice of the Peace. = [szat.] DOCKET ENTRY. : J.B. April 10th 1860, warrant issued. D. R., Constable. vs. A subpoena issued for two witnesses for plaintiff, both served T. C, by constable, D. R., and by him returned “ served on oath.” Demand not above $50 for damages occasioned by firing __ COSTS. woods, &¢. April 10, a. p. 1860, defendant brought up same Wa se ow 4S 10 aay. Plaintiff anpearn i S. sw.; P. D. H. aff. P. On Docket entry : + 10| hearing it appears that the defendant is guilty of the charge Seeariog, grenolders |: 50 exhibited against him. Therefore, judement and deren SUBDIR 2 Ses |e issued April 13th 1860, to L. M., and N. O., and P. Q,, to view, Judgment... examine and certify what damage the plaintiff hath sustained, Muka oe &c. April 15th 1860, the above-named freeholders report that the plaintiff hath sustained damage to the amount of twenty- eight dollars. Therefore, judgment for plaintiff for twenty- eight dollars. Execution issued April 20th, returnable May 10, Constable. Serving warrant ' eage wee Order on freeholders Miles Set Constable’s Return.—Money and costs paid into office. Bilenee bara D. B., Constable e|-. : hes I: SERSRN soBaS ‘Received satisfaction. J.B. [ 382 ] SJ itxtures. I, Nature and properties of fixtures. II. Judicial decisions FIxrureEs 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 again to a chattel state. Ibid. 5. Baron Parke defines them as “those personal chattels which have been annexed to the freehold, but which are removable at the will of the person who has annexed them, or his personal representatives, though the property in the freehold may have passed to other persons.” 5 M. & W.171. And see 1 Bouv. Inst. 187. 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 term, (Gib. on Fixt. 22, 33,) but not after its expiration, (Ibid. 38, 1 Wh. 91, 7 0. 155, 2 Wr. 346,) except where his estate ceases on an uncertain event, against which he could not provide. 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 execu- tion 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 demised, they cannot be disannexed from the house under the writ of execution. 7 T. R.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 B. & Ald. 625. Where the fixtures belong to a lessee for years, he has an interest in them distinct from the land; but where 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 seizable 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 term, will revert to the landlord, who cannot seize what is contingently his property. Ibid. 54. 4 B. & Ald. 206. And so far 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 mill, for the purpose of being picked. Bro. Abr. Distress, pl. 23. 17 S. & R. 418. 2 W. & 8.116. And as a consequence of this doctrine, it would seem, 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. 8 Eng. L.'& Eq. 569. IL. A stoam-engine set up by a lessce, on a tract of land, for the purpose of ‘cairying on the making of salt, is personal property ; and as such, liable to be seized and sold by his execution creditors. 4 W. 380. 2 Pet. 187. Where the instrument or utensil is an accessory to anything of a personal nature, as to the carrying on a trade, it is to be considered a chattel; but when it is a necessary accessory to the enjoyment of the inheritance, it is to be considered as a part of the inheritance. 2 Br. 285. From the adjudged cases on the subject, I think we are warranted in saying that everything put into, and forming part of a building, or machinery for manufactur- . ing purposes, and essential to the manufactory, is part of the freehold and cannot be levied on as personal property, 17 8. & R. 415, per Smiru, J. 2 W.&8. 119. Thid. 390. 3 Stew. 814. See 2 J. 304. - A steam-engine used for propelling a saw-mill, is part of the building. 3 W. 140. §&o is a copper boiler or kettle fixed in a brewery. 17S. & R. 413. And FLOATING LUMBER. 883 80 also is a steam-engine, with its fixtures, erected by the owner of the land, for the purpose of grinding bark and breaking hides, in the course of his business as a tan- ner. 7 W. 106..12 N. H. 205. The criterion of a fixture in a mansion-house or dwelling, is actual and permanent fastening to the freehold; but this is not the criterion of a fixture in a manufactory oramill, 2 W. & 8. 116. Gas-fixtures, such as chandeliers and side-brackets, put up and attached to the gas-pipes by the owner of the premises, are mere personal property, not fixtures in a proper sense of the term, and do not pass by a sheriff’s sale of the real estate. 9 C. 522. Trover will not lie against the owner of real estate in possession, for fixtures annexed to the freehold. 7 CO. 155. —_@——_. Floating Lumber, I, Disposition of lumber found floating in in the Ohio, Allegheny or Monongahela the Susquehanna or Lehigh rivers. rivers. II. Disposition of lumber found floating III. Authorities and decisions. I. Acr 20 Marcu 1812. Purd. 673. _ Sect. 1. If any logs, shingles, shingle-bolts, boards: or lumber of. any kind, which may have been or may be put into the river Susquehanna, or either of its branches,(a) or into the river Lehigh or the waters running into the said river, and which may be taken up by any person or persons, either floating down the waters of either of the said rivers, it shall be the duty of the person so taking up such lumber, to lodge a list by him subscribed, within thirty days thereafter, with the nearest jus- tice of the peace of the town or township where such lumber was taken up, of the number, quality and quantity of the logs, shingle-bolts, boards, shingles or other lumber with the marks on the same; and the said justice shall enter the same on his docket, and cause the same to be published at least three weeks, in one weekly newspaper of the county wherein such lumber was taken up, for which entry he shall be allowed the sum of twenty-five cents, by the owner of said lumber, if the same shall be taken by him, otherwise to be paid by the person or persons to whom said lumber shall be forfeited; and if any owner of lumber, recorded as aforesaid, or his agent, shall not take away the same within three months after such publica- tion, all such lumber shall become forfeit to the person taking up the same. Sxcr. 2. Any person or persons taking up and securing any logs, boards, shingle- bolts, shingles or any other lumber, upon any of the waters aforesaid, shall be entitled to receive from the owner thereof the sum of six cents for every log, the sum of one cent for every shingle-bolt, provided the number so taken up shall exceed fifty, the sum of fifteen cents for every hundred feet of boards, the sum of six cents for every hundred of shingles; as also the costs of advertising the same, upon payment of which sum or sums, or tender of payment by the owner of such lumber, to the per- son or persons taking up the same, he shall forthwith deliver all such lumber to the said owner; and upon neglect or refusal to deliver the same, he shall forfeit and pay to the owner thereof treble the value of said lumber, to be recovered as debts of equal amount are by law recoverable in this commonwealth. Srcr. 3. If any person or persons, taking up any logs, shingle-bolts, boards, shingles er other lumber upon any of the waters aforesaid, shall neglect to lodge a list containing a description of such lumber, with the nearest justice of the peace, containing a description of the quantity, quality and marks of such lumber, or shall obliterate, alter or deface, any letters, figures or other marks upon the same, or open any bundle of shingles, every person so offending, shall pay to the owner of such lumber, double the value thereof; and shall also forfeit and pay the sum of twenty o See Act 10 April 1862, as to the West Branch of the Susquehanna and its tributaries Purd, 1278. 884 FLOATING LUMBER, dollars, the one half to the use of this commonwealth, and the other half to the use of the person who shall sue for the same, to be recovered in the same manner as debts of equal amount are or shall be by law recoverable. Aot 8 May 1855. Purd. 673. Sgor. 1. Any person or persons who shall take up any boards or Jumber of any kind, logs, timber, shingles or shingle-bolts found floating in the river Susquehanna, or either of its branches, shall, in lieu of the compensation now by law allowed, be entitled to a reasonable compensation for all necessary services and expenses in taking up and securing the same, and for advertising it in the manner now by law prescribed. : Scr. 2. If in case the parties are unable to agree upon the amount to be paid, the lumber, logs, shingles, bolts or timber shall be delivered to the owner, but in such case the owner or owners of the said lumber, or his or their agent having charge of the same, shall be liable to arrest upon a capias ad respondendum, from which he shall not be discharged until he or they shall give bail absolute before the justice who shall issue such capias, to pay to the person or persons taking up such lumber, logs, shingles, bolts.or timber, the judgment that may be recovered, with costs of suit: Provided, That if the said owner or owners of such lumber, logs, shingles, bolts or timber, or his or their agent, shall, before the taking away of such lumber, logs, shingles, bolts or timber, have offered to pay to the person or persons taking up the same, in current money, as much as may be recovered in such suit, then and in that case. the plaintiff or plaintiffs shall pay all the defendant’s necessary costs, which costs shall be paid before the judgment recovered is col- lected ; and it shall not be required, in such case, that the money offered be brought into court. Secr. 3. If any lumber, logs, shingles, shingle-bolts or timber shall not be claimed within three months from the time it was taken up, it shall and may be lawful for the justice with whom a list thereof is filed, to order the sale of the same by a constable, at. public auction; after giving ten days’ public notice, by not less than six handbills posted in the most public places in the vicinity of such lumber, logs, shingle-bolts or timber; and out of the proceeds thereof the justice shall pay to the person or persons taking up the same, a reasonable compensation for his services and his necessary costs, which shall be fixed by the justice; and the residue, after | the payment of the costs, shall be paid in to the county treasurer for the use of the owner or owners of such lumber, et cetera, who shall be entitled to receive the same at any time within two years after the same is paid in, by producing to the treasurer satisfactory proof of his right thereto; and if not claimed within two years, the same shall be forfeited to and for the use of the county. Sect. 4. Every justice with whom a list of any such lumber, et cetera, shall be lodged, shall keep a record of his proceedings in the case; and he and the con- stable shall be entitled to the same fees as are now by law provided for similar services. Sxor. 5. The provisions of this act shall apply to any lumber, logs, shingles, shingle-bolts or timber which may lodge upon any islands in the Susquehanna river or its branches, and be advertised, according to existing laws, by the owner of such island. Szcr. 6. All laws or parts of laws inconsistent with this act, are hereby repealed : Provided, That the provisions of this act shall not apply to logs, timber, shingles or shingle-bolts, or other property taken up by any incorporated boom company in the commonwealth. II. Aor 6 Maron 1849. Purd. 674. Sxor. 1. If any person or persons shall take up any logs, shingles, shingle-bolts, boards or lumber of any kind, or any flat-boat floating upon the waters of the Ohio, Allegheny or Monongahela rivers, or of any of their tributaries, or lying upon the shores of the same, it shall be the duty of such person or persons so taking up such logs, lumber or flat-boat, within five days after taking up the same, to make out a list and description of such logs, lumber or flat-boat, with the marks, letters or names thereon, and to post up such list and description in at least three conspicuous places in the town, township, ward or borough in which such logs, lumber or flat- FLOATING LUMBER. : 385 boat were taken up; and if the owner or owners of any such logs, lumber or flat-boat, his or their agent or agents, shall not call for and take away the same within three months after the giving of the notice aforesaid, such logs, lumber or flat-boat shall become forfeited to the person or persons so taking up the same. Srcr. 2. Any person or persons taking up and securing any logs, shingles, shingle- bolts, boards or lumber of any kind, or any flat-boat upon any of the waters or shores of the Ohio, Allegheny and Monongahela rivers, or of any of their tributaries, shall be entitled to receive from the owner or owners thereof, his or their agent or agents, the sum of six cents for every log, the sum of one cent for every shingle-bolt, the sum of six cents for every bunch of shingles, the sum of fifteen cents for every thousand feet of boards, and the sum of four dollars for every flat-boat so taken up and secured; upon the payment of which sum or sums, or upon tender or payment thereof by the owner or owners of such logs, lumber or flat-boat, his or their agent or agents, such logs, Jumber or flat-boat shall be forthwith delivered up to the owner or owners of the same, his or their agent or agents; and if any person or persons taking up such logs, lumber: or flat-boat, or if any person or persons in whose possession the same may be found, shall neglect or refuse to deliver up as aforesaid the same to the owner or owners thereof, his or their agent or agents, or if any person or persons shall deface or obliterate any marks, letters or names on said logs, shingles, shingle-bolts, boards or lumber of any kind, or any flat-boat, or if any person or persons shall knowingly sell or purchase any such logs, lumber or flat- boat, or shall saw such logs, or shall convert any such logs, lumber or flat-boat to his or their use in any way, unless the same shall have been forfeited as directed in section first of this act, he or they offending in any manner as aforesaid, shall forfeit and pay to the owner or owners of such logs, lumber or flat-boat, treble the value thereof, to be sued for and recovered in the same manner as other debts are now recoverable by law; and any person or persons offending in any manner as aforesaid, shall also for each and every such offence, be liable to a penalty of fifty dollars, one half to the use of the commonwealth, the other half to the use of the person suing for the same; the said penalty to be sued for and recovered in the same manner as other penalties of like amount are now recoverable by law: Provided, That the provisions of this act shall not extend to the cities of Pittsburgh and Allegheny, excepting so much thereof as provides penalties for withholding or secreting any such lumber or flat-boat, or obliterating or defacing any mark or marks thereon. III. The act 20 April 1853, authorizes the owners or occupiers of islands in the Susquehanna, to advertise lumber lodging thereon in the mode prescribed by the act of 1812. Purd. 673. ; This act was passed, in consequence of a decision of the supreme court, that lumber which had gone adrift and lodged upon an island in the Susquehanna, was not subject to the provisions of the act of 1812: that aet only applying to lumber taken up while floating on the river. 4 W. 63. To enable a salvor, under the act of 1812, to retain possession of lumber taken up adrift in the Susquehanna, against the owner, there must be a strict compliance with the provisions of the act. 2 C. 499. If an insufficient and defective list of the lumber saved be filed before the justice, it cannot be amended after the owner has exercised his right of recapture. Ibid. 25 [ 386 ] forcible Entry and Betainer. I. What constitutes forcible entry and de- tainer. II. Provisions of the Penal Code. III. Proceedings in case of forcible entry or detainer. IV. Judicial decisions. I. Anrnouas jurisdiction of the ditle to lands or tenements cannot be exercised by magistrates, yet where the right to possess is attempted to be acquired or retained by 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 possession of property belonging to another, is guilty of a gross wrong 1n attempting to retain it; but when the obtaining-of it is by violence, the law recognises it as a substan- tive offence, for redress and punishment of which the law has pointed out substantive sufficient redress. To such an offence the law has given the distinctive name of “ Forcible Entry,’ and to the analogous and too frequently consequent 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 detainer by similar means follows the demand for restitution. : Forcible entry is the violently taking possession of lands and tenements, without right to enter, by force and arms, or with noises, threats or other demonstrations of violence. Forcible detainer is the violently keeping possession of lands and tene- ments, 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. The punishment of these offences is prescribed by the 21st and 22d sections of the revised Penal Code. II. Acr 31 Marce 1860. Purd. 221. Sxcr. 21. If any person shall with violence and a strong hand, enter upon or into any lands or buildings, either by breaking open doors, windows or other parts of a house, or by any kind of violence or other circumstances of terror, or if any person, after entering peaceably, shall turn out by force or by threats, or menacing conduct, the party in possession, every person so offending shallabe guilty of a for- cible entry, and, on conviction, shall be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tene- ments entered as aforesaid. Sect. 22. If any person shall by force and with a strong hand, or by menaces or threats, unlawfully hold and keep the possession of any lands or tenements, whether the possession of the same were obtained peaceably, or otherwise, such person shall be deemed guilty of forcible detainer, and, upon conviction thereof, shall be sen- tenced to pay a fine not exceeding five hundred dollars, or to undergo an imprison- ment not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements unlawfully detained as aforesaid : Provided, That no person shall be adjudged guilty of forcible detainer, if such person, by himself, or by those under whom he claims, has been in peaceable pos- session for three years next immediately preceding such alleged forcfble detention.(@) (a) These two sections relate to the offences of forcible entry and detainer. The first specifies what shall constitute a forcible entry, and declares how the offence shall be punished. The second declares what conduct shall amount to a forcible detainer, and also de- fines the nature and extent of the punishment to be inflicted upon the offender. The only statutory enactment of our own concerning the offences here referred to, is the act of 1700, 1Sm. 1; but the English statutes, 15 Rich. IL, ch. 11, 8 Hen. VI., ch. 9, 31 Eliz., ch. 11, and 21 James I., ch. 15, relative to forcible entry and detainer, are all reported to be in force in this state. The provisions contained in our statute of 1700, as well as those of the FORCIBLE ENTRY AND DETAINER. 387 III. There is no offence more easily understood and more distinetly 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. The offence may be committed by one or more, and all who participate are equally guilty. 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 seldom 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. If the forcible detainer be persisted in, the magistrate may commit for the continued breach of the peace, or order such surety for good behavior until the time of trial, as will insure speedy justice and the prompt abatement of the nuisance. Besides the redress thus afforded, the party injured may recover damages in an action of trespass; it is a well settled principle of law that wherever injury is done by the unlawful act of another, that other is responsible in damages to the party aggrieved. And the conviction upon indictment, in no manner lessens the claim of the party aggrieved for damages. Damages are given as compensation for the injury; the other proceedings are rather in advancement of public justice than private redress. : IV. To constitute the offence of forcible entry there must be such acts of vio- lence, or such threats, menaces, signs or gestures, as may give reason to apprehend personal injury or danger, in standing in defence of the possession. A. 14, 17, 42, 355. 68. & R. 252. The statute requires as an indispensable ingredient in the offence, “ violence and a strong hand.’* 1 Y. 501. Where no other force is used than is implied in every trespass, the case is not within the statute. 1 Sm. 3,n. 7 Sm. 728. , Unless there be possession in another at the time of the entry, it is no offence, whatever may be the degree of force used. A. 48, 315, 355. * In order to constitute a forcible entry, the prosecutor’s possession must be quiet, peaceable and actual; not a mere scrambling possession; and the entry must be accompanied by actual force 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 be guilty of this offence. 1 Ash. 140. A. 17, 43, 316, 355. 6S. & R. 252. 10 W. 144, 455. An indictment for forcible entry may be sustained against a landlord for forcibly ejecting a sub-tenant, after the termination of the tenancy and removal of tne prin- cipal tenant. 5 P. L. J. 119. 2 P. 401. And a prosecution for forcible entry will lie by one tenant in common against his co-tenant, where the possession has been adverse an exclusive. 2 P. 420. The entry and the detainer are distinct offences, and although both be charged in the same indictment, the defendants may be acquitted of one and convicted of aforementioned English statutes, are all sup- plied by the 21st and 22d sections of this act. Whilst the language is greatly simplified and condensed, the only material alteration in the law itself, will be found in making the pro- ceeding by indictment the exclusive criminal remedy, thereby excluding the inquisition ow authorized to be held before two justices of the peace, which is believed to be entirely unnecessary, in view of the fact that restitu- tion is to form part of the sentence, except in ca::s of conviction for forcible detainer, where three years’ peaceable possession has imme- diately preceded the commission of the offence. This limitation has not been extended to con- victions for forcible entry, because, according to the statutory limitation proposed by us for misdemeanors, no conviction can be had unless the offender is prosecuted’ within two years after the commission of the offence. The punishment of fine and imprisonment is the same as at common law, except'the maximum is mentioned, as in other sections of this bill. Report on the Penal Code 16. ! 388 FORGERY. the other. 1 §.°& R. 124. There may be a forcible detainer, though the entry was-peaceable ; and it is sufficient if it appear from the indictment that the ag- grieved party was forcibly kept out of possession. To authorize judgment of restitution, the estate of the prosecutor must be averred in the indictment, possession is not enough. 9 Barr 184, 2 P. 411. The wife of the prosecutor may be examined as a witness to prove the force, and the force only. 1 D. 68. Sorgery. [See CounTERFEITING. ] \ I. Provisions of the Penal Code. III. Judicial decisions and authorities. IL. Consideration of forged instruments IV. A warrant against one charged with may be recovered back. forgery. I. Act 31 Marcu 1860. Purd. 245. Szcr. 169. If any person shall fraudulently make, sign, alter, utter or publish, or be concerned in the fraudulently making, signing, uttering or publishing any written instrument, other than notes, bills, checks or drafts already mentioned, to the prejudice of another’s right, with intent to defraud any person or body corpo- rate, or shall fraudulently cause or procure the same to be done, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confine- ment at labor, not exceeding ten years. Szor, 170. If any person shall falsely and fraudulently forge or counterfeit, or falsely and fraudulently be concerned in the forging and counterfeiting the great or less seal of the commonwealth, the public and common seal of any court, office, county or corporation, or any other seal authorized by law, or shall falsely and fraud- ulently utter and publish any instrument or writing whatever, impressed with such forged and counterfeit seal, knowing the same to be forged and counterfeit, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not ex- ceeding one thousand dollars, and to undergo an imprisonment, by separate or soli- tary confinement at labor, not exceeding seven years. Szor. 171. If any person shall forge, deface, embezzle, alter, corrupt, withdraw, falsify or unlawfully avoid any record, charter, gift, grant, conveyance or contract ; or shall knowingly, fraudulently or unlawfully spare, take off, discharge or conceal any fine, forfeited recognisance or other forfeiture; or shall forge, deface or falsify any registry, acknowledgment or certificate; or shall alter, deface or falsify any minute, document, book or any proceeding whatever of or belongihg to any public office within this commonwealth; or if any person shall cause or procure any of the offences aforesaid 10 be committed, or be in anywise concerned therein ; he shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years; and if a public officer, he shall be removed from said office, and the same be declared vacant by the court passing sentence upon him. If. Aot 5 Aprin 1849. Purd. 111. Szor. 10. 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 ex- change, draft, check, order, promissory note or other instrument negotiable within this commonwealth, by the holder thereof, from the indorsee or indorsees, 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 indorser, shall have been forged thereon, and such value or amount, by reason thereof, errone- ously given or paid, such indorsee or indorsees, as well as such payer or payers FORGERY. 389 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 indorsee or indorsees 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 repayment of the same. III. 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. P. C. 182-4. The forgery of any writing which may be prejudicial to another is indictable at common law. A. 34. Ld. Raym. 1461. Vaux’s Dec. 47. Any alteration of a genuine instrument in a material part, whereby a new opera- tion is given to it, is a forgery of the whole. Whart. Cr. L. § 1421. If there be,two persons of different 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 482. A man may even be puilty 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 ‘he true assignee ; and he, know- ing this, obtained an advance of money, on indo:sing the permit for the delivery of the coal, with his own proper name: it was held, that this was a forgery. 6 - Cow. 72. One receiving a counterfeit note from an innocent person, in payment, and keep- ing it by him six months, without notice, is guilty of gross negligence, and .must sustain the loss. 13S. & R. 318. It is not forgery to get an illiterate man to sign a note for $141, by falsely and fraudulently pretending that it is for $41 only. 10 H. 390. The making of a false entry in the journal of a mercantile firm, by a confidential clerk and book-keeper, with intent to defraud his employers, is a forgery at common law. Such forgery may consist in a false addition of the amount of cash received from bills receivable. 8 C. 529. The act of 5th April 1849, was only declaratory of the common law. 6 C. 527. Notice of the forgery, within a reasonable time after ‘its discovery, and an offer to return the note, are necessary to the maintenance of an action for the recovery of the consideration paid, unless waived by the defendant, or the note be shown to possess no value. 6 OC. 145, 527. Yo In an action to recover back the money paid for a promissory note, with a forged indorsement, the supposed indorser is a competent witness to prove the forgery. 6 C. 527. IV. WARRANT AGAINST ONE CHARGED WITH FORGERY. MERCER COUNTY, ss. : The Commonwealth of Pennsylvania, To the Constable of the Township of V-— M——, in the County of Mercer, greeting ; You are hereby commanded to take the body of A. B., if he be pare 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 2 charge, founded on the oath of C. D., of having feloniously altered a certain promissory note drawn by E. F. in favor of G. H., dated April 27th 1859, for $100.674, 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. p. 1860.- J. R., Justice of the Peace. [szat.]} [ 390 ] Fornication and Bastardy. I. Provisions of the Penal Code. II. Judicial decisions. : IIL. Form of a warrant and commitment for bastardy. s IV. Form of a warrant for concealing the death of a bastard child. I. Act 31 Marcu 1860. Purd. 223. Szcr. 37. Ir any person shall commit fornication, and be thereof convicted, he. or she shall be sentenced to pay a fine not exceeding one hundred dollars, to the guardians, directors or overseers of the poor of the city, county or township where the offence was committed, for the use of the poor of such city, county or township ; and any single or unmarried woman having a child born of her body, the same shall be sufficient to convict such single or unmarried woman of fornication ; and the man by such woman charged to be the father of such bastard child,-shall be the reputed father, and she persisting in the said charge, in the time of her extremity of labor, or afterwards 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, and such per- son being thereof convicted, shall be sentenced, in addition to the fine aforesaid, to pay the expenses incurred at the birth of such child, and to give security, by one or more sureties, and in such sum as the court shall direct, to the guardians, directors or overseers of the poor of the city, county or township where such child was born, . to perform such order for the maintenance of the said child, as the court before which such conviction is had shall direct and appoint. Srcr. 38. If a bastard child is begotten out of the state, and born within the state, or begotten within one of the counties of this state, and born in another, in the latter case, the prosecution of the reputed father shall be in the county where the bastard child shall be born, 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, viz., of a bastard begotten without the state and born within it, the like sentence shall be passed, except in the imposition of a fine, which part of the sentence shall be omitted. Scr. 89. If any woman shall endeavor privately, either by herself or the pro- curement of others, to conceal the death of any issue of her body, male or female, which, if it were born alive, would by law be a bastard, so that it may not come to light whether it was born dead or alive, or whether it was murdered or not, every such mother, being convicted thereof, shall suffer an imprisonment, by separate or solitary confinement at labor, not exceeding three years; and if the grand jury shall, in the same indictment, charge any woman with the murder of her bastard child, as well as with the offence aforesaid, the jury by whom such woman shall be tried, may either acquit or convict her of both offences, or find her guilty of one and acquit her of the othcr, as the case may be.(a) ; (a) The 8th section of the act of 1718 sub- jected the concealment, by the mother, of the death of a bastard child, to the penalty of death, except such mother could make proof, by one witness at least, that the child, whose death was by her so concealed, was born dead; this provision was copied from the English statute of 21 James I., ch. 27: the rigorous nature of this statute suggested the passage of the 6th section of the act of 5 April 1790, which declares that ‘the con- strained presumption that the child whose death is concealed, was therefore murdered by the mother, shall not be sufficient evidence to convict the party indicted, without pro- bable presumptive proof is given that the child was born alive;” and that of the 18th section of the act of 1794, which declares “that the concealment of the death of any such child shall not be conclusive evidence to convict the party indicted of the murder of her child, unless the circumstances attesting it be such as shall satisfy the mind of the jury, that she did wilfully and maliciously destroy and take away the life of such child.” In this state of the law, it seemed better to the commis- sioners to repeal all the existing statutes on the subject, and to substitute a plain provi- sion, making the concealment of the death of an illegitimate child a substantive offence. The destruction of the life of such child by its mother is thus left subject to the same punishment, and susceptible of the same proof as ordinary cases of murder. They have, however, preserved that feature of the act of 1794 which authorizes counts for the murder of a bastard child, and for concealment of its death, to be united in the same indictment. Report on the Penal Code 25. FORNICATION AND BASTARDY. 391 ! II. 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, pee the bodily impotence of the husband be clearly and fully established. 1 Ash. Where the husband and wife live separate and apart, it may be shown, either from facts or circumstances, that the hushand had not access to the wife. Ibid. If the husband have access to his wife, no evidence short of absolute impotence 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 question upon the evidence. 6 B. 283. . ; On an indictment for fornication and bastardy, a married woman is a competent wee to prove the criminal connection, but not the non-access of the husband. id. On an indictment for fornication and bastardy, if a witness testify that he had illicit connection with the prosecutrix about the time the child was begotten, her competency as a witness to prove the defendant is the father of the child, is thereby destroyed; but the credibility of the witness is for the jury. 4 P. L. J. 186. It is impossible for a mother to decide to which of two or more connections about the same time, her conception is to be imputed: and therefore, on the trial of an indictment for fornication and bastardy, the prosecutrix may be asked “if she had connection with any other person about the time when the child was begotten.” 1 Am. L. J. 48. In an indictment charging the defendant with fornication and bastardy, where the period of gestation proved was.three hundred and thirteen: days, the court charged, that although this was an unusual period of gestation, it was not an dmpos- sible one, and that the defendant might bave been the father of a child born under such circumstances. 6 P. L. J. 195. 1 Or. C. C. 592. In an indictment for fornication and bastardy, the witness testified, “he forced me, he worked himself under me, and in that way forced me: I did not give my consent.” Upon a demurrer to this evidence, it was held, that it was not such as would merge the offence charged in the crime of rape; but that the defendant might be legally convicted. 5 W. & S. 345. In an indictment for fornication and bastardy, an omission to state the sex of the child is fatal. 1 R. 142. The term “ illicit intercourse,” in an indictment for conspiracy to cause a female to commit fornication, is a sufficient designation of the offence. Commonwealth ». Deschamps, Q. S. Phila., 3 June 1854. MS. On an indictment for seduction, the defendant may be convicted of simple forni- cation. 5 H. 126. In Pennsylvania, the court allow for lying-in charges, and direct payment 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 be dead, the money may be awarded to his legal representative. 3 Y. 39. The period and amount of maintenance of the child is, by statute, in Pennsyl- vania, left to the judgment of the quarter sessions, and they may alter their practice as they find proper. 4 B. 541. 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. 6S, & R. 282. An action of debt does not lie upon the sentence of the court of quarter sessions. 178. & R. 9. The prosecutrix cannot maintain an action against the constable for an escape,. before conviction; but after sentence, she may do so. 6 H. 263-4. 9 H. 215. 1 Wh. 63. , A bond, conditioned “ from time to time and at all times hereafter” to indemnify the county from all expenses which shall accrue by reason “of the birth, mainte- nance, education and bringing up of the child,” is good. 3 H. 409. One who subsequently marries the prosecutrix, cannot release the allowance for maintenance. 6 H. 116. 892 FORNICATION AND BASTARDY. Concealment of the birth of a bastard child is no offence under 89th section. Vaux’s Dec. 24. .An indictment under the 89th section which does not distinctly aver the death of the child, is bad. 8 W. 535. But it is not. necessary to set forth in what manner, or by what acts, the mother endeavored to conceal the death of the infant. 2S. & R. 40. III. A WARRANT FOR BASTARDY. COUNTY OF HUNTINGDON, ss. The Commonwealth of Pennsylvania, To any Constable in the said county, greeting: Wuereas, A. E. B., of the said county, hath made oath before the subscriber, one of our justices of the peace in and for the said county, that she is now pregnant with a bas- tard child, which is likely to become chargeable to the said county; that D.F., farmer, of G. township, in the said county, did beget her with child, and that he is the father of the same. These are, therefore, in the name of the said commonwealth, to require and command you, or some one of you, forthwith to apprehend the said D. F., and brin him before the subscriber to answer the said premises, and to be further dealt wit! according to law. Witness our said justice of the peace, under his hand and seal, this tenth day of May, a. p, 1860. T. E., Justice of the Peace. [szat,] Nore.—When the defendant is brought before the justice, he must take bail from him to appear at the next session to answer the charge, or in default of sufficient surety, commit him to the county prison, and bind over the witnesses to give testimony. The above warrant, and the practice under it, seem to have originated from the provisions of the statute of 6 Geo. IT., ch. 31, which enacts that “if any single woman be delivered, or declare herself with child of a bastard, likely to be charge- able to a parish, or any extraparochial place; and on oath, in writing, before one or more justices of the county or corporation, charge any one of getting her with child, the justices, on application of any overseer, may grant a warrant against the person charged, and shall commit him to jail, or the house of correction, unless he give security to indemnify the parish, or a recognisance to abide the order of the next quarter or general sessions. Provided, if the woman die, marry, miscarry or be not with child, or no order be made within six months after delivery, &c., he shall be discharged,” &. Com. Dig., Bastard, G. 2. A COMMITMENT FOR BASTARDY. COUNTY OF HUNTINGDON, ss. The Commonwealth of Pennsylvania, To any Constable of the said county, and to the Keeper of the Prison of the said County of Huntingdon, greeting: Tuxsz are to authorize and require you, the said constable, forthwith to convey and deliver into the custody of the keeper of the prison, the body of D. F., farmer, charged on oath before T. E., one of our justices of the peace in and for the said county, with having, within the said county, begotten A. E. B., a single woman, with child, of which bastard child she is now pregnant, and which when born is likely to become chargeable to the said county ; and you, the said keeper, are hereby required to keep the said D. F. in your custody in the said prison, and him there safely to keep till the next court of quarter sessions of the said county of Huntingdon, or until he shall thence be delivered by due course of law; and for so doing this shall be your sufficient warrant. Witness the said T. E., at H——, who hath hereunto set his hand and seal the twelfth day of May, Anno Domini 1860. T. E., Justice of the Peace. Tecan IV. A WARRANT FOR CONCEALING THE DEATH OF A BASTARD CHILD. HUNTINGDON COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of H—— township, in the County of Huntingdon, greeting: Waertas, information hath been made upon o RK. justi in and for the said county, that M. B., of ee the fait ous ae woman, hath had a bastard child, lately born alive, of her body, which child is since dead, and that the said M. B. hath concealed the death of the said bastard child. You are, therefore, hereby commanded to take the said M. B. and bring her before our said FORTUNE TELLING. 393 itness the said J. R.,\‘at H—— township aforesaid, the 10th day of April, a. p. 1860. * qos to answer the said complaint, and further to be dealt with according to law. \ J. R., Justice of the Peace. [sEau.] Fortune Telling. Act 8 Aprit 1861. Purd. 225. Sor. 1. Any person who shall pretend, for gain or lucre, to predict future events, by cards, tokens, the inspection. of the head or hands of any person, or by any one’s age, or by consulting the movements of the heavenly bodies; or who shall, for gain or lucre, pretend to effect any purpose by spells, charms, necromancy or incantation, shall be guilty of a misdemeanor, punishable by any court of quarter sessions in this commonwealth by fine and imprisonment, or both or either, at the discretion of the court; the first offence shall be punished with not more than two years imprison- ment, nor less than fifteen days, and a fine of not more than one hundred, nor less than ten dollars; the second offence with any term of imprisonment and fine, not exceeding five years or five hundred dollars, as the court may deem proper. Sxot. 2. Whosoever shall pretend, for lucre or gain, to tell fortunes or foretell future events, by other means than those aforesaid, shall be guilty of a misdemeanor, to be prosecuted as offences against public law are now prosecuted in this common- wealth, and to be punished as is provided in section first of this act. Scr. 3. If any person or persons shall publish, by card, circular, sign, news- paper or any other means whatsoever, that he or she shall or will predict future events, the said publication may be given in evidence to sustain an indictment under the first and second sections of this act. Srcr. 4. Any person whose fortune may have been told as aforesaid, shall be a competent witness against all persons charged with any violation of the provisions of this act. Szcr. 5. Any person or persons who shall advise the taking or administering of what are commonly called love powders or potions, or who shall prepare the same, to be taken or administered, shall be guilty of a misdemeanor, and shall be punished as is provided in section one of this act. Scr. 6. Any person or persons who shall pretend, for lucre or gain, to enable any one to get or to recover stolen property, or to tell where lost articles or animals are, or to stop bad luck, or to give good luck, or to put bad luck on any person or animals, or to stop or injure the business of any person, or to injure the health of any person, or to shorten the life of any person, or to give success in business, enter- prise, speculation, lottery, lottery numbers or games of chance, or win the affections of any person whatever, for marriage or seduction, or to make one person marry another, or to induce any person to alter or make a will in ‘avor or against any one, or to tell the place where treasure, property, money or valuables are hid, or to tel! the place where to dig or to search for gold, metals, hidden treasure or any other article, or to make one person dispose of property, business or any valuable thing in favor of another, shall be guilty of a misdemeanor, punishable under the provisions of this act, in any court of quarter sessions; and the party or parties who may have consulted such persons as have pretended to do any of the acts aforesaid, shall be competent witnesses in all proceedings for a breach or breaches of this act. [ 394 J SH rauds, I. Provisions of the Penal Code. 3. Fraudulent insolvency. == 1. Fraudulent destruction of written 4, Fraudulent collusion with insol instruments. _ vents, 2. Fraudulent disposition of property. Il. Judicial decisions. J. Aor 81 Marcu 1860. Purd. 238. 1. Sxor. 129. If any person shall fraudulently or maliciously tear, burn or in any other way destroy any deed, lease, will, bond or any bill or note, check, draft or other security for the payment of money, or the delivery of goods, or any certificate of loan or other public security of this commonwealth, or of the United States, or any of them, or any certificate of the stock or debt of any bank, corporation or society, either of this commonwealth or the United States, or either of them, or of any foreign country, or any receipt, acquaintance, release or discharge: of any debt, suit or other demand, or any transfer or assurance of money, stock, goods, chattels or other property, or any letter of attorney or other power, or any day- book or other hook of’ accounts, or any agreement or contract whatever, with intent to defraud, prejudice or injure any person, bank, body corporate, society or asso- ciation, the person so offending shall be guilty of a misdemeanor, and, on con- viction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, not exceeding three years, or either, or both, at the dis- cretion of the court. 2. Sxor. 130. 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 color thereto, or shall conceal any grant, sale, lease, bond or other instrument or proceeding, either in writing or by parol, or shall become a grantee, purchaser, lessee, obligee or other like party in any such instrument or proceeding, with the like fraudulent intent, or shall act as broker, scrivener, agent or witness, in regard to such instrument or proceeding, with the like intent, such person or persons, on conviction thereof, shall be guilty of a mis- demeanor, and be sentenced to pay a sum not exceeding the value of the property or effects so secreted, assigned, conveyed or otherwise disposed of or concealed, or in respect to which such collusion shall have taken place, and undergo an imprison- ment, not exceeding one year. 8. Sxor. 131. If it shall appear to the court upon the hearing of any petition in insolvency, either by the examination of the petitioner, or other evidence, that there is just ground to believe either— I. That the insolvency of the petitioner arose from losses by gambling, or by the urchase of lottery tickets; or II. 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 de- positary, and to the prejudice of the opposing creditors; or III. That he has concealed any part of his estate or effects, or colluded or con- trived with any person for such concealment, or conveyed the same to any per- son for the use of himself, or any of his family or friends, or with the expectation of receiving any future benefit to himself or them, and with intent to defraud his creditors; in every such case it shall be the duty of the court to commit such person for trial. Szor. 132. If such debtor shall, upon trial, be convicted of any of the acts men- tioned in the preceding section, he shall be adjudged guilty of a misdemeanor, and shall be sentenced as follows: I. If found guilty of embezzlement or concealment of property, as aforesaid, he shall be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years. ii FRAUDS. 395 II. If it shall appear, by the verdict of the jury on such trial, that the insolvency of the petitioner was caused by gambling or the purchase of lottery tickets, as afore- said, he shall be sentenced to an imprisonment not exceeding three years. Secr. 133. If no bill shall be presented to the grand jury at the next ses- sions, or if the bill shall not be found, or if the indictment shall not be tried at the second session after the commitment of such petitioner, unless the postpone- ment of the trial take place at the instance of such petitioner, or if, upon trial, such debtor be acquitted, it shall be the duty of the court of common pleas to discharge him from imprisonment upon his proceeding as is provided by the in- solvent laws. 4. Sxcr. 184. If any person, with intent to defraud the creditors of an insolvent debtor, or any of them, shall collude or contrive with such insolvent debtor for the concealment of any part of his estate or effects, or for giving a false color thereto, or shall contrive or concert any grant, sale, lease, bond or otHer instrument or proceeding, either in writing or by parol, or shall become a grantee, purchaser, lessee, obligee or other like party, in any such instrument or proceeding, with the like intent, or shall act as broker, scrivener, agent or witness, in regard to such instrument or proceeding, with the like intent, such person shall be guilty of a misdemeanor, and, on conviction thereof, be sentenced to pay a fine not exceeding ten thousand dollars, and to undergo an imprisonment not exceeding two years, and shall forfeit all claim which he may have to any part of the estate of such debtor. II. To render the offence complete, under the 180th section of the act, the as- signment or conveyance of the property must be with a fraudulent intent, to prevent the creditor from pursuing his legal means for making his debtor’s effects available for the payment of his debts in a legitimate way, conceived at the time of the con- veyance. If the transfer was legal, and bond jide, between the parties, if made to give a preference to one creditor over another, it is not criminal. The proper sub- ject 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 iniquity, with a design to injure a creditor. 2 P. 317. 3 P. L. J. 86. a If a creditor resort to a prosecution under the 130th section of the act, for the mere purpose of compelling a settlement of his claim, he will be liable to an action for malicious prosecution. The act is intended to punish a criminal offence, not to be used as a means of collecting debts, however just, and to suffer it to be per- pe: to that purpose would necessarily lead to great injustice and oppression. J. 84. Where. a petitioner for the benefit of the insolvent laws, was the president of a railroad company, and had issued certificates of stock and loans, in the name of the company, without the knowledge of the managers, and pledged the same as collateral security for moneys borrowed and applied to his own; it was held, that this was a case of embezzlement within the meaning of the act relating to fraudulent insolvency. 2 Ash. 287. A tax collector is an agent within the meaning of the 2d clause of the 131st section of the act. Fisher’s Case, 2 Wh. Dig. 27, pl. 133. If a defendant charged with fraudulent insolvency, be acquitted, he must be dis- charged by the court. 2 Wh. Dig. 27, pl. 125. But if convicted, and pardoned, he may still be held in custody under the execution. 1 Ash. 84. : [ 396 J Fraudulent Conbeyances, I. Statute against fraudulent conveyances. II. Judicial decisions. I. Sraryre 13 Exizapera, cap. v. Purd. 1025. Secr. 2. Provides that all and every feoffment, gift, grant, alienation, 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, hinder or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, &c.] shall be from henceforth deemed and taken (only as against that person or persons, his or their heirs, suc- cessors, executors, administrators and assigns, whose actions, suits, debts, &., by. such fraudulent 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 effect; any pretence, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding. Szor. 6. Provides that this act shall not extend to property conveyed bond fide, and on good consideration, to any person not having notice or knowledge of the fraud. The statute of 13 Eliz., c. 5, relates to creditors only: the statute of 27 Hliz., ¢. 4, contains similar provisions for the protection of subsequent bond jide purchasers. Rob. Dig. 298.' II. To bring a case within the statute of 18 Eliz. ¢. 5, the conveyance must be voluntary,; it must be made by the owner of the land, he being at the time indebted ; and with intent to delay, hinder and defraud creditors or others of their just and lawful actions, &c.; and in general the intent will be presumed from the circum- stance of the party being indebted. Where these circumstances occur the convey- ance is void, as well in respect to subsequent as to prior creditors. 1 P. C. C. 460, 464. See 1 Am. Lead. Cas. 41-79. : The fraudulent intent as to existing creditors, is a conclusion of law, where the deed is a voluntary one; but where it is otherwise, the fraudulent intent is to be established as a fact, by the party impugning the conveyance. 8 C. 128. A conveyance of real estate by a father to his son, intended to delay and hinder creditors, is fraudulent as to them, whether the consideration amount to the value of the land or not. 4 H. 488. The consideration of a sale may amount to the value of the land sold, and yet the sale be fraudulent as against creditors, because such sale may delay, hinder and obstruct them in the collection of their debts. 4 H. 497. A deed made to hinder and delay creditors, though void as to them, nevertheless concludes the debtor for all other purposes. 5 0.219. The deed is good except against the interest intended to be defrauded. 3 C. 148, [ 397 ] SHreeholder. FREEHOLDERS ar: entitled to certain privileges in this state: 1. By the act of 1725 to an exemption from arrest, on mesne process, in any civil action. (Purd. 35.) 2. By the acts of 1810 and 1836 to a stay of execution, on judgments obtained against them. Purd. 481, 601. For purposes of exemption from arrest, the act of 1725 defines a freeholder to be 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 fi/ty pounds current money of America, in some city or township within this province, clear estate, or hath unimproved land to the value of fifty pounds like money. But in order to be entitled to a stay of execution, the defendant must have a freehold, within the county where the judgment is entered. 5 B. 432. Purd. 481. Any incumbrance on a freehold estate is sufficient to deprive a defendant of a stay of execution. It is not enough that the estate may be considered equal to the judgment, after paying all incumbrances. 5 B. 253. '_ A judgment obtained before a justice of the peace is sufficient ground to defeat the privilege of a freeholder. 1 D. 436. If a defendant freeholder, who, seeks to avail himself of the privilege arising from his freehold, neglect to suggest it, it would justify the issuing of an execu- tion against him; but, on the payment of costs accrued on the execution, the magis- trate should supersede it, and give the defendant the privilege secured by law. 1 Ash. 407. 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 M. 347. i If the plaintiff issue execution, notwithstanding the plea, on defendant’s motion 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 be found insufficient, the execution will be good. Ibid. Ona plea of freehold being entered, the plaintiff may move to dismiss it for insufficiency. 1 Phila. R. 204. 1 T. & H. Pr. 586. 2 M. 347, : . : If the freehold be within the county, the defendant need only show its existence and value; it then lies on the plaintiff, if he object, to show an incumbrance; but if it lie in another county, the defendant must, in addition, produce evidence of its being clear from incumbrances. 1 T. & H. Pr. 297. If there be 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. Under the act of 1725, if the defendant’s freehold be clear of incumbrances, it is enough that it be of the value of fifty pounds, though less than the plaintiff’s demand ; if incumbered, the question is, whether it would be sufficient to satisfy the plaintiff’s demand, over and above the incumbrances. 18. & R. 363-5. [ 398 ] ‘ — Fugitibes from Pustice. I. Constitution of the United States. III. Judicial decisions. II. Act of congress. I. A person charged in any state, with treason, felony or other crime, who ehall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. Const. U. S. Art. IV. § 2. II. Acr or Coneruss, 12 Fesruary 1793. Bright. Dig. 293. Srcr. 1. Whenever the executive authority of any state in the union, or of either of the territories north, west or south of the river Ohio, shall 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 expenses 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. “Sxcr. 2. 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 afore- said, the person or persons so offending, shall, on conviction, be fined not exceeding five hundred dollars, and be imprisoned not exceeding one year. III. The right to arrest criminals who had fled from one state to another, was recognised 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 offender, with or without a warrant. Since the adoption of the federal constitution, and the passage 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 taken refuge in another state, and detain him till a formal requisition can be made by the proper authority for his surrender 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. Hyer’s Case, Com. Pleas, Phila., February 1848, before Parsons, J. 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 effectually 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 8, & R. 135. The same point is decided in 4 Harring. 572. 9 Wend. 221. 6 P. L. a R. M. Charlt. 120. Vaux’s Dec. 30. 6 H. 39. 8 Zabr. 311. 17 Leg. Int. FUGITIVES FROM JUSTICE. ' 399 It makes no difference, whether or not the offence charged be a felony by the laws of the state from which the party is alleged to be a fugitive. 1 Sandf. 8. C. 701. 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 affidavit that the defendant has fled from such state into the one where the warrant is demanded. 6 P. L. J. 424. 18 Geo. 97. 21 Law Rep. 488. Fugitives slaves are not embraced, and cannot be demanded under that clause of the constitution which provides for delivering up fugitives from justice; although the offence of running away from their masters be punishable by indictment, in the state from which they fled. Ibid. 425. 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 Sandf. 8. C. 701. 6 P.L. J. 417, 418. 6 Law Rep. 57. 38 McLean 121. 3 Zabr. 311. 2 Car- ter 896. 5 Cal. 237. The affidavit, when that form of evidence is adopted, must be at least so explicit and certain, that if it were laid before a magistrate, it would justify him in commit- ting the accused to answer the charge: 6 P. L. J. 414, 418. The warrant of removal must show that a demand has been made by the execu- tive 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 fugitive with having committed a crime; which should be stated as it is repre- sented in the indictment or affidavit furnished. If the validity of the warrant be 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, 1 Am. L. J. 480. 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 P. L. J. 417. 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. Daniel’s Case, 22 April, 1848, Quarter Sessions, Phila., before Parsons, J. Where the governor of one state demands a person of the governor of another 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. The governor’s warrant is a conclusive justification. 20 Law Rep. 651. The governor issuing the requisition is the only proper judge of the authenticity of the affidavit. 5 Cal 237. 21 Law Rep 488 16 Leg. Int. 20. [ 400 J Gambling. I. Of gambling-houses. IV. Of money lost at play. ; It. Of e ooksfighting, gaming, &c. V. Of billiard rooms and bowling saloons. III. Of gaming, &c., at taverns. VI. Judicial decisions. I. OF GAMBLING-HOUSES. Ir any person shall set up or establish, or cause to be set up or established in any house, room, out-house, tent, booth, arbor or other place whatsoever, any game or device of address or hazard, with cards, dice, billiard balls, shuffle-boards or any other instrument, article or thing whatsoever, heretofore or which hereafter may be invented, used and employed, at which money or other valuable thing may or shall be played for or staked or betted upon ; or if any person shall procure, permit, suf- fer and allow persons to collect and assemble in his house, room, out-house, booth, tent, arbor or other place whatsoever, under his control, for the purpose of playing at, and staking or betting upon such game or device of address or hazard, money or other valuable thing; or if any person being the owner, tenant, lessee or occu- pant of any house, room, out-house, tent, booth, arbor or other place whatsoever, - shall Jease, hire or rent the same, or any part thereof, to be used and occupied, or employed, for the purpose of playing at, or staking and betting upon such game or device of address or hazard for money or other valuable thing; the person so offend- ing in either of the enumerated cases, shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding one year. The owner of such house, room, out- house, tent, booth, arbor or other place whatsoever, who shall have knowledge that any such game or device of address or hazard, as aforesaid, has been set up in or upon the said premises, and shall not forthwith cause complaint to be made against the person who has set up or established the same, shall be deemed and held to have knowingly leased, hired or rented the said premises for the said unlawful purposes : Provided, That this act shall not be construed to apply to games of recreation and exercise, such as billiards, bagatelle, ten-pins, et cetera, where no betting is allowed. Act 31 March 1860, § 55. Purd. 227. If any person shall keep or exhibit any gaming-table, establishment, device or apparatus, to win or gain money or other property of value, or aid, assist or 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 conviction thereof, shall be sentenced to an imprisonment, by separate or solitary confinement at labor, Waste five years, and to pay a fine not exceeding five hundred dollars. id. ‘ If any person shall, through solicitation, invitation or device, persuade or prevail on any other person to visit any room, building, arbor, booth, shed or tenement, or other place kept for the use of gambling, such person shall be guilty of a misde- meanor, and, upon conviction thereof, be sentenced to pay a fine not exceeding five hundred dollars; and besides, shall be civilly responsible and liable to pay back to any person induced by him to enter such gambling-house, any sum he may have lost at play therein. Ibid. § 57. No witness shall be excused, under any allegation or pretence whatsoever, in any prosecution or proceeding for unlawful gambling, from giving his testimony touch- ing the same; but no evidence given, or facts divulged by him, shall be used or employed against him in any criminal prosecution whatever. Ibid. § 58. If an affidavit be made and filed before any magistrate, before whom complaint has been made of the commission of either of the crimes provided against in the three preceding sections, setting forth 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 said affidavit, any gaming-table, device or apparatus, the discovery of which might lead to establish the truth of such charge, the said mag- istrate shall, by his warrant, command the officer who is authorized to arrest the GAMBLING. 401 person so charged, to make diligent search for such 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 prisoner, who shall retain possession, and be responsible therefor until the discharge, commitment or letting to bail of the person so charged; after which such officer shall retain such table, device or apparatus, 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, by the. direction of the court, be destroyed. Ibid. § 59. It shall and may be lawful for any sheriff, constable or other officer of justice, with or without warrant, to seize upon, secure and remove any device or machinery of any kind, character or description whatsoever, used and employed for the purposes of unlawful gaming as aforesaid, and to arrest, with or without warrant, any person setting up the same. And it shall be the duty of such sheriff, constable or other officer, to make return, in writing, to the next court of quarter sessions of the pro- per county, setting forth the nature and description of the device or machine so seized upon, and the time, place and circumstances under which such seizure was made ; and the said court, upon hearing the parties, if they should appear, if satis- fied that such device or machine was employed and used for the purpose of unlaw- ful gaming as aforesaid, shall adjudge the same forfeited, and order it to be publicly destroyed, and at the same time order such reasonable costs and charges to the seiz- ing officer as they shall deem adequate and just, to be paid by the owner or possessor of such device or machine, or in case of his default, or in case he cannot be found, to be paid as costs are now by law paid upon indictments; and such adjudication shall be conclusive evidence to establish the legality of such seizure, in any court of this commonwealth, in any cause in which the question of its legality shall arise ; and in any case in which a decree of forfeiture shall not be pronounced, if said court shall, upon_the evidence, be satisfied that there was probable cause for the seizure, they shall certify the same, which certificate shall be a bar to any action brought against the officer for or on account of such seizure, in those cases in which the said officer returns, or offers to return such device or machine; and in all cases shall prevent a recovery in damages, for any sum beyond the real value of the device or machine seized. Ibid. § 60. No writ of replevin shall issue for any device or machine, seized as aforesaid, nor shall any action be instituted for or on account of such seizure, until the court shall have first adjudicated upon the premises; but such writ or action shall forthwith, aM reat be quashed and abated by the court in which it shall be sued or brought. id. § 61. II. OF cocK-FIGHTING, GAMING, &c. If any person or persons, after the first day of June next, shall cause to fight any cock or cocks, for money or any other valuable thing, or shall promote or encourage any match or matches of cock-fighting, by betting thereon, every such person so offending, shall, upon conviction thereof before any mayor’s court, or court of quarter sessions 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 in which poor-houses have been or may be erected, and when no poor-house shall be erected, to the use of: the poor of the city, borough or township in which the offence shall be com- mitted; and in default of payment of the fine aforesaid, the offender shall be com- mitted to prison for any period not exceeding thirty days, at the discretion of the court before which the conviction shall take place: Provided, further, That such information shall be made within forty-eight hours after the commission of the offence. Act 12 March 1830, § 1. Purd. 499. If any person or persons, after the first day of August next, [cause to fight any cock or cocks, for 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 r 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, _ 402 GAMBLING. every such person so offending, 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, sum of money or other valuable thing, every such person so offending shall, upon conviction thereof as aforesaid, forfeit and pay the sum of twenty dollars.(a) Act 22 April 1794, § 5. Purd. 499.. One moicty 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 thereof, andthe 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 con- victed for any offence against this act, unless such prosecution be commenced within thirty days after the offence has been committed. Ibid. § 12. III. Or aamina, &., AT TAVERNS. If any innkeeper, tavern-keeper or other retailer of wine, spirituous or other - strong drink, shall incite, promote or encourage any 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 as- sembled or attending upon any such game, fight, play or race, such person shall forfeit and pay, upon conviction of the first offence, fourteen dollars, and upon a second conviction of the offence twenty-eight dollars. Act 11 March 1834, § 18. Purd. 499. 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, shuftle-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 per- son shall, for the first and second offence respectively, forfeit and pay the like sums. Ibid. § 19. And if any innkeeper or tavern-keeper, or other licensed retailer 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 incapable of being again licensed in like manner for one year thereafter; and upon such second con- viction, such person shall, in addition to the penalty aforesaid, be for ever incapable of ies a public-house keeper or retailer as aforesaid, within this commonwealth. id. § 20. Provided,(b) 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 herself 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 was 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 deter- aera ty the said court shall be final and conclusive. Act 22 April 1794, § 6. urd. 500. TV. OF MONEY LOST AT PLAY. If any person or persons shall lose any money or other valuable thing, at or upon any match of cock-fighting, bullet-playing or horse-racing,(c) or at or upon any game of address, game of hazard, play or game whatsoever, the person or persons who (a) For proceedings to convict under this by act of 1884, by which, however, this pro- act, see ‘Profaneness:” and see ‘‘Horse- viso is not re-enacted. Quere, whether it is Racing.” in force? (2) The remainder of this section supplied —(c) See ‘‘Horse-Racing.” GAMBLING. 408 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.(a) Ibid. § 8. 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 paying dr delivering the same, shall have a right within ten days then next or thereafter, 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 prcse- cuted in any court of record, or where the value is under a sum that may be reco- vered before any justice of the peace, within this commonwealth, subject to an appeal as in other cases, in which action no essoin, protection or wager of law, nor more than one imparlance shall be admitted; and in which actions it shall be suffi- cient for the plaintiff 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, whereby 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. Ibid. § 9. V. OF BILLIARD ROOMS AND BOWLING SALOONS. No person shall keep any billiard room, bowling saloon or ten-pin alley in this commonwealth, without first taking from the treasurer of the proper county a license, [for which he or she shall pay as follows: for every such license granted in the city and county of Philadelphia, and other cities of this commonwealth, the sum of one hundred dollars; and for every such license in the other counties of this commonwealth, the sum of thirty dollars ;] and no such license shall be granted for a longer period than one year. Any person keeping such billiard room, bowling saloon or ten-pin alley, without license, shall, on conviction thereof in the court of quarter sessions of the proper county, be punished by fine not less than the amount of such license, nor more than five hundred dollars, or ‘imprisonment in the county jail for any period not exceeding three months, and costs of prosecution: Provided, That this section shall not be construed to prohibit billiard tables or ten-pin alleys connected with hospitals, asylums or other institutions for the relief of the insane and diseased. Act 10 April 1849, § 19. Purd. 500. No license shall hereafter be granted to any person who may keep a billiard room, bowling saloon or nine or tén-pin alley, under the 19th section of the said act to which this is a supplement, unless such person shall pay, [in the city and incorporated districts of the county of Philadelphia and city of Pittsburgh, for such license, at the rate of one hundred dollars for the first billiard table, bowling alley, or nine or ten-pin alley, and ten dollars for each and every additional billiard table, bowling alley, or nine or ten-pin alley, in any one establishment used for any such purposes ;] and in the other counties of this commonwealth and the unincor- porated townships of the county of Philadelphia, the sum of thirty dollars for the first table and alley as aforesaid, and ten dollars for each additional table or alley ; and no such license shall be granted for a longer period than one year: any person keeping such billiard room, bowling saloon or nine or ten-pin alley, without license, shall be liable to the same penalties and liabilities provided by the said 19th section of the act to which this is a supplement, for persons offending against the same ; but this section shall not be construed to prohibit billiard tables, or bowling or nine or ten-pin alleys connected with hospitals or asylums, or other institutions for the relief of the insane or diseased, or to private individuals who have such ten-pin alleys on their own premises, and not used for pay or public use. Act 15 May 1850, § 2. Purd. 500. (a) Such note is void, even in the hands of he may sue the indorser on his fndorsement. . an innocent holder for value. 1H. 601. But 1H. 603 ue 4 404 GAMBLING. No license shall be hereafter granted to any person who may keep a billiard room, bowling saloon, or nine or ten-pin alley, unless such person shall pay, in the city and incorporated districts of the county of Philadelphia, city of Lancaster and city of Pittsburgh, for such license, at the rate of thirty dollars for the first table, bowling alley or nine or ten-pin alley, and ten dollars for each and every additional billiard table, bowling alley, or nine or ten-pin alley, in any one establishment used for any such purpose; said license to be collected in the city and county of Phila- delphia in the same manner as now provided by law in the case of tavern licenses. Act 14 April 1851, § 9. Purd. 501. The moiety of the fines and forfeitures in money, accruing under the 19th sec- tion of the act to which this is a supplement, and under the 2d section of this act, shall hereafter be appropriated to and for the use of the person or persons who shall prosecute in such cases, and the other moiety of the same shall be for the benefit of the commonwealth; and nothing in the said act to which this is a supplement, or in the present act, shall be construed in any court or judicial tribunal to repeal any law in force at the time, of passing the said act to which this is a supplement, imposing any penalty or penalties upon gambling or unlawful gaming. Act 15 May 1850, § 4. Purd. 501. No person shall keep a bagatelle room in the county of Allegheny, without first taking from the treasurer of the said county a license, for which he or she shall pay as follows: for every such license granted by the treasurer of the county, the sum of five dollars ror each bagatelle table, together with the sum of fifty cents to the treasurer as a fee for his certificate of license, and the further sum of thirty- seven and a half cents as a fee to the mercantile appraiser for his return, as herein- after provided, and no such license shall be granted for a longer period than one year, and any person keeping such bagatelle rooms or tables, for purpose of play, without a license, shall, on conviction thereof in the court of quarter sessions of the proper county, be punished by a fine not less than ten dollars nor more than one hundred dollars: Provided, That this section shall not be construed to prohibit the use of such tables in hospitals, asylums or other institutions, for the insane and diseased. Act 11 May 1853, § 9. Purd. 501. The mercantile appraiser shall make return to the county treasurer of all per- sons keeping such tables at the time of making his annual returns, as provided for by law, except the present year, which return of the keepers of such tables shall be made on the first Monday of June. Ibid. § 10. No person licensed to keep a restaurant or eating-house, or to sell spirituous or malt liquors; shall establish upon his premises a billiard room, bowling saloon or ten-pin alley, shuffle-board or other like game, directly communicating with, or the passage to which shall lead through the public bar-room, eating-room, or other place of public resort on the premises, under the penalty of ten dollars for every day such communication shall be allowed, to be recovered as debts under one hun- dred dollars ‘are recoverable, one-half to go to the informer. Act 18 April 1859, § 2. Purd. 501. VI. 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. 1 Cr. C. C. 511. But where the playing is, from the magnitude of the stake, ex- cessive, and such as is now commonly understood by the term “gaming,” it is consi- dered by the law as an offence, being in its consequences most mischievous to society. 1 Russell 406. From the nature of the evils requiring a remedy, and from the words of the act of 1847 re-enacted by the revised Penal Code of the 31st March 1860, its pro- visions embrace only those games which are attended with ‘winning, 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 conducted with pro- priety—when not kept in connection with public-houses—when not used to en- courage the dissolute to spend their time and money in idleness and tippling + “GAME. 405 (thus becoming a nuisance in fact), are neither forbidden by the common law, nor by the statute. There is one species of amusement which, as it approaches the line which divides innocence from guilt, it may be proper to consider. Bil- liards 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 Cow. 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 inter- pretation (under which a penal statute is never extended by construction to cases not plainly within its purview), and we adopt it as a true exposition of the law. Lewis's C. L. 344. 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 bowling saloons or ten-pin alleys. A public gaming-house is a public nuisance, at common law. 1 Cr. C. C. 150. 4 Tbid. 107. on seems, that dominoes is a game of chance as well as of skill. 16 Eng. L. & Eq. 6-7. : : Game, Act 21 Apri 1858. Purd. 498. Sect. 1. It shall not be lawful for any person within this commonwealth to shoot, kill or in any. way trap or destroy any blue-bird, swallow, martin or other insectivo- rous bird, at any season of the year, under the penalty of two dollars. ‘Scr. 3. No person shall buy, or cause to be bought, or carry out of this state, for the purpose of supplying any private or public house or market, any pheasant, partridge, woodcock or rabbit, unless the same shall have been shot or taken in the proper season, [as provided for in this act,] under a penalty of five dollars for each and every offence. : : Szcr. 4. No person shall, at any time, wilfully destroy the eggs or nests of any birds mentioned in the different sections of this act within this commonwealth, under a penalty of two dollars for each and every offence. Scr. 5. The possession of any person in this commonwealth, of any of the game and birds mentioned in the different sections of this act, shot, killed or other- wise destroyed out of season as aforesaid, shall be prima facie evidence to convict under this act. : Sect. 6. Any person offending against any of the provisions of this act, and being thereof convicted before any alderman or justice of the peace aforesaid, or by the oath or affirmation of one or more witnesses, shall, for every such offence, forfeit the fine or fines attached to the same, one half to the use of the county in which the complaint is made, and the other half to the use of the informer; and if the offender shall refuse to pay the said forfeiture, he shall be committed to the jail of the proper county, for every such offence, for the space of two days, without bail or mainprise: Provided however, That such conviction be made within sixty days after the com- mitting of the offence. Act 14 Aprit 1859. Purd. 498. Sect. 1. From June first to September first of each and every year hereafter, it shall be unlawful for any peyson or persons to shoot, kill, trap or destroy rail-birds or reed-birds, under the penal sum of five dollars, with costs of prosecution, for each and every offence; to be sued for and recovered before any magistrate in the county in which the offence was committed, one half of the penalty for the use of the in- 406 GUARANTY. former, who shall be a competent witness, the other half for the use of the poor in the county in which the offence was committed. Sxcr. 2. No person shall kill or otherwise destroy any pheasant between the first day of February and the first day of August, or any woodcock between the first day of February and the fourth day of July, or any partridge or rabbit between the first day of February and the first day of October in the present year, and in each and every year thereafter, under the penalty of five dollars for each and every offence. —~——. Guaranty. I. Definition of, and remedy upon a guar- II. When a guaranty must be in writing. anty. III. Judicial decisions. I. A auaRAnty is a promis; 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. The dis- tinction between a surety and a guarantor is well settled, in Pennsylvania: the latter assumes but a contingent liability; the engagement of the former is an absolute direct one. 4 Am. L. J. 102. And the law in relation to these several contracts is different; in case of a guaranty, 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 the principal debtor were in such a condition, that any pursuit of him would have proved fruitless. 1 Wall. Jr. 149. 3 P. R. 18. Whilst the only mode to be pursued by a surety is a positive call upon the creditor to pursue the principal, with notice, that unless he does so, the surety will consider himself discharged. 88. &R.116. 4H. 138. II. Aor 26 Aprit 1855. Purd. 497. ; Sgor. 1. No action shall be brought whereby to charge any executor or adminis- trator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action was brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or by some other person by him authorized. Scr. 1. This act shall not go into effect until the first day of January next, or apply to or affect any contract made or responsibility incurred prior to that time; or for any contract the consideration of which shall be a less sum than twenty dollars. TI. In an action upon a guaranty, the consideration for it must be stated and proved. Fell on Guaranty 4. And in Pennsylvania, there must also be proof that the principal debtor has been exhausted, or of his insolvency. 1 Wall. Jr. 149. 6 C. 205. If at the maturity of the guaranty the principal debtor be utterly insolvent, it is not necessary to bring suit against him, before proceeding on the guaranty; and the insolvency may be proved, not only by record, but by parol evidence. 3 H. 293. The mere demand of payment and refusal to pay, is not sufficient evidence of insolvency, though the debtor be not a resident of the commonwealth. 3 P. R. 18. What is due diligence is a question of fact for the jury, on the evidence submitted to them. 168. & R. 79. 1. 210. And where the promise is by parol, the jury . ae whether they imported a direct or a contingent Hability. 16 Leg. Int. 60. Where a judgment has been recovered against the principal debtor, and an execu- tion issued, and returned “no goods,” the proceedings are prima facie evidence of his insolvency. 1 C. 210. 6 C. 205. GUARANTY. 407 © Words of doubtful import ought not to receive such a construction as to subject the person using them to pay the debt of another. 7 Cr. 69. ; Where one guaranties the payment of a sum of money on a day certain, the, creditor, dé seems, when the period arrives, may sue on the contract of guaranty, without pursuing the principal debtor. Bright. R. 96. 1M. 276. 1 P. L. J. 30. 1 Phila. R. 70. In an action on a guaranty, it isa good defence, that collateral securities assigned by the principal, at the time of making the contract of guaranty, for the security - the same debt, have been lost through the’ plaintiff’s want of diligence. 7 C. 10. A contract to guaranty the payment of rent reserved on a lease, is not discharged by the lessor’s consent to an assignment of the term; the lease providing that no assignment shall be valid without such consent. 6 C. 205. The act of 1855, requires that a promise to pay the debt of another should be in writing ; but where the consideration moves directly from the promissee to the pro- missor, although the contract may be to perform work for a third person, the statute has no application. 16 Leg. Int. 60. And see 2 Wr. 302. A contract required to be in writing must appear with reasonable certainty, with- out recourse to parol proof, from the instrument itself; and parol testimony cannot be admitted, either to contradict or to vary it. 17 Leg. Int. 148. An agreemant made between parties prior to or contemporaneously with their executing a written obligation as sureties, by which one promises to indemnify the other from loss, does not contradict or vary the terms or legal effect of the written obligation, and may be proved by parol evidence. 2 Kern. 462. It is necessary that the contract in writing, to be answerable for the debt of another, should express the consideration upon which it is made. 3 Johns. 210. 24 Wend. 35. 4 Seld. 207. But it is sufficient, if, from the whole instrument, the consideration expressly, or by necessary inference, appear, so that it be clear that such, and no other, was the consideration upon which the promise was made. 3 Comst. 203. The principal contract cannot be read as a part of the guaranty, executed at the same time, upon the same paper, and to’ the same promissee, so as to sustain the guaranty under the statute of frauds, unless the latter refer expressly, or by clear implication, to the consideration expressed in the principal, as that of the collateral undertaking. 6 Smith 331. 4 Seld.207. Butsee 2 Wr. 302. 7 Smith (N. Y.) 329. These authorities have reference exclusively to cases of past consideration ; but where the engagement is to be responsible for a future debt to be contracted by another, the law is otherwise. Thus, a written undertaking to be responsible “ for all such goods as W. should buy of C.,” indorsed upon and executed at the same time with a contract between W. and C. for the purchase and sale of the goods, contains a sufficient expression of the consideration to be valid under the statute. 7 Smith (N. Y.) 315. And see 3 Kern, 232. 9 Smith Oe Y.) 495. The agent contemplated by the statute, who is to bind the defendant, in an action on a guaranty, by his signature, must be a third person, and not one of the con- tracting parties. 17 Leg. Int. 148. 5 B. & A. 333. “Tt is settled that the word ‘assign’ implies no guaranty.” 17 8. & R. 502. The covenant implied from the assignment of a bond is not a guaranty, but that the assignee should receive the money from the obligor to his own use; and if the obligee should receive it, then, that the assignor should be answerable over for it. 1D. 449. 7 H. 183. 5 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 im 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 with- drawing 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 opera- tions to the succeeding partnership. Gow on Part. 147. ‘[ 408 J Hawkers and Pedlars. 1. Hawkers’ and pedlars’ licenses. II. Tin and clock pedlars. I. Tue courts of quarter sessions of the respective counties in this common- wealth, or two judges of said courts in vacation, are hereby authorized to issue a license (a) to any applicant [who shall bring himself within the provisions of the act passed the 30th day of March 1784, entitled “ An act for regulating of hawkers and pedlars,”’ and the supplement thereto, passed the 28th day of March 1799,] ® and who shall give bond to the commonwealth of Pennsylvania, with sureties to approved of by the court, in the sum of three hundred dollars, conditioned that such applicant shall be of good behavior during the continuance of such license, which shall be for one year, and the said applicant shall satisfy the court that he is a man of honesty and good moral character, and otherwise bring himself within the provisions of said acts: Provided, That before any such license shall issue to any such applicant, he shall pay for the use of this commonwealth, for a license to travel on foot, eight dollars; with one horse and cart or wagon, or other vehicle, sixteen dollars ; with two horses and wagon or other vehicle, twenty-five dollars; and pro- duce a receipt from the county treasurer, together with the usual fees to the clerk for similar services; and the clerks of said courts respectively, shall, within ten days after each term, transmit to the auditor-general a list of the names of persons to whom licenses have been granted at the preceding term, and the rates thereof: Provided, That no person licensed for the purpose aforesaid, shall be permitted to sell, vend or expose to sale, any(c) foreign or domestic goods, wares or merchan- dise, 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 and Passyunk, under the penalty of fifty dollars, to be recovered by any person who shall sue for the same, as debts of like amount are by law recoverable: And provided further, That it shall be the duty of the auditor-general to publish once a year the names of all persons who shall take out a license as aforesaid, in at least three papers within this com- monwealth, for three successive weeks. Act 2 April 1830, § 1. Purd. 783. No person shall be licensed as hawker and pedlar, or petty chapman, within this state, but such only as is a citizen of the United States, and who, from loss of limb or other bodily infirmity, shall be disabled from procuring a livelihood by labor, which disability shall be proven by certificate or certificates from two physicians of respectable character, under oath, residing in thé county where the application for license is made; and’ no license hereafter granted shall extend farther than the county in which such license may have been granted, except wholesale pedlars, whose license shall extend throughout this state, for which they shall pay for the use of the commonwealth, for a license to travel with one horse and. wagon, or other vehicle, forty dollars ; with two horses and a wagon, or other vehicle, fifty dollars. Act 16 April 1840, § 1. Purd. 788. No person shall be licensed as a hawker or pedlar under the several acts of assembly now in force, unless he shall have resided at least one year in the county in which such application shall be made, and shall produce satisfactory evidence, on oath, from at least two respectable practising physicians, who shall be citizens of the United (States), residents in such county, that such applicant is, in point of fact, by reason of bodily disability (the nature and character (d) of which shall be stated), unable to procure a livelihood at his trade, if he have any, or by bodily labor. Act 5 May 1841, § 7. Purd. 7838. It shall be the duty of the county treasurers respectively, on or before the second (a) This act does not embrace tin and clock affected with « gastro hepatalgia,” was held pedlars. 2 W. 300. : insufficient; the nature and character of the Part within brackets supplied ; infra, disease must be stated, that the court may c) The sale ofa single article subjects the judge whether the applicant is entitled toa offender to the penalty. 143. & R. 398. license. 7 P. L. J. 275. (4) A certificate that the applicant was HAWKERS AND PEDLARS. | 409 Tuesday in December, in each and every year, to render an account under oath or affirmation to the auditor-general, of all moneys received by them for licenses, specifying the names of the persons and the amount received from each, and pay over to the state treasurer all moneys received by them, deducting therefrom a com- mission of five per cent.; and if any county treasurer shall neglect or refuse to render his account to the auditor-general for settlement, and pay over the full amount to the state treasurer, as hereinbefore directed, such treasurer shall not be allowed any compensation or commission. Act 2 April 1830, § 8. Purd. 784. No person or persons, either with or without license, shall sell or expose to sale, any foreign or domestic goods, wares or merchandise, as a hawker or pedlar, or travelling merchant, by public auction or outcry,(a) in any part of this common- wealth, under the penalty of fifty dollars for each and every offence; and all. for- feitures that may accrue under this act, or the acts to which this is a further supplement, may be sued for and recovered by action of debt, before any alderman or justice of the peace, as debts of like amount are by law recoverable, (b) by any person who may sue for the same, one-half to the informer and the other half to the use of the county in which the offence may have been committed ; and so much of the acts to which this is a further supplement as is by this act altered or supplied is hereby repealed: Provided, nevertheless, That nothing contained in this act shall prohibit the citizens of this commonwealth, who may manufacture goods, wares or merchandise within this commonwealth, from vending or exposing the same to sale in the same manner as if said act had not been passed into a law. Ibid. § 2. And if any person not being licensed as aforesaid (except such whose licenses have or may not yet be expired) shall be found hawking, peddling or travelling from place to place (c) through any part of 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 a fine of fifty dollars; or being so qualified by the license, shall refuse on request of any citizen of this state to show his license, every person so offending shall be liable to a fine of twenty dollars, to be recovered and applied in the same manner as is provided for by an act for regulating hawkers and pedlars, and its several supplements, passed the 30th day of March 1784:(d@) Provided, That this act shall not be construed to prevent citizens of this commonwealth from hawking and peddling goods of their own manufacture. Act 16 April 1840, § 2. Purd. 784. 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 to which this is a supplement is directed and provided. Act 28 March 1799, § 2. Purd. 784. No person or persons shall sell or expose to sale, within the county of Schuyl- kill,(e) as a hawker, pedlar or travelling merchant, any foreign or domestic goods, wares or merchandise, under the penalty of fifty dollars for each and every offence, to be inflicted in the manner provided for in the act of April 6th 1833, entitled “A supplement to the act regulating auctions in the city of Lancaster and other towns of this commonwealth,” passed the 7th day of April 1832.(g) Act 17 April 1846, § 1. Purd. 784. (2) To constitute a sale by auction there must be either successive bids for the pro- perty, or successive offerings of it at different prices, in a way to provoke competition. Offering goods publicly at a specified price is no violation of the act. 1 W. & 8. 552-3. b) See 4P. L. J. 871. . Selling groceries from a canal boat is a violation of this act. 1 H. 336. (d) The act of 1784 is supplied by act 2 April, 1830, 3 2. ot (e) By subsequent acts these provisions have been extended to the counties of Leba- non, Elk, Cumberland, Perry, Carbon, Berks, Luzerne, Columbia, Monroe, Mercer, Lan- caster, Butler, Union, Somerset, Bedford, York, Vontgomery, Lycoming, Lehigh, Dau- phin, Sullivan, Wyoming, Bucks, Susque- hanna and Washington; and to Fayette county, as to the peddling of tin and copper ware. Purd. 785. (g) The act of 1833, here referred to, pro- vides that the mode of proceeding against any person for a violation of its provisions, shall be by indictment in the court of quarter ses-. sions ofthe proper county ; and that whenever complaint shall be made to any justice of the peace or alderman of the proper county or city, on oath or affirmation, against any per- son for violating the provisions of the same, it shall be his duty to issue a warrant for the apprehension of such person, and compel him — 410 HOMICIDE. II. Tin and clock pedlars.—No person shall employ himself or be concerned in the business or employment of hawking or peddling any kind of tin or japanned ware or clocks, from place to place, without having previously obtained a license so to do, under the provisions 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 informatign 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 any such person so offending 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 eyery repetition of the said offence shall be considered and pun- ished as a new offence : and every person so employed, who upon demand shall refuse fo exhibit his license, shall be deemed an offender against this act, and one-half of the penalties, which may accrtie 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. Act 6 February 1830, § 1. Purd. 785. 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 pedlars of tin and japanned ware, and to hawkers and pedlars of clocks, upon satisfactory evidence of the good moral character of such applicant, he having first produced a receipt from the county treasurer for thirty dollars; and it shall be the duty of the said clerks respectively, upon granting such license, immediately to transmit a certificate thereof to the auditor-general, who shall charge the county treasurer with the sum so received; and the county trea- surers shall receive a like commission, and be subject to the same duties, restrictions and penalties, connected with their accountability under this act, as are provided in the 5th section of the act, entitled “An act laying a duty on retailers of foreign merchandise,’(a) and the applicant shall pay to the clerk like fees as for similar services. Ibid. § 2. Homicide, I. Degrees of homicide. III. Judicial decisions. IL. Provisions of the Penal Code. i I. Homicrp, or the killing of any human creature, is of three kinds: felonious, excusable and justifiable. 4 Bl. Com. 177. Felonious homicide is the killing of a human creature of any age or sex, without justification or excuse. Ibid. 188. It is either murder or manslaughter, according to the circumstances. Lewis’ C. L. 358. Murder, as defined by the common law, is when a person of sound memory and geo ee ee any reagonable creature in being, and in the peace of the commonwealth, with malice prepense or aforethought, either implied. [Ab 20. 4P ite Ci ee Express malice, is where the killing is the product of a sedate, deliberate mind, and formed design. Ibid. Malice implied, or in a legal sense, means thatthe 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. By act of 22d April 1794, re-enacted in 1860, murder, in Pennsylvania, is to enter into a recognisance with sufficient for the use of the commonwealth, of not less securities for his appearance at the next court than fifty nor more than five hundred dollars. of quarter sessions of the proper county, to at the discretion of the court, together with answer the said complaint; and any person the costs of prosecution. being thereof duly convicted, shall pay a fine (a) Act 2 April 1821. 7 Sm. 473. HOMICIDE. 411 divided into two degrees. ‘All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premedi- tated killing, or which shall be committed in the perpetration, or attempt to perpe- trate any arson, rape, robbery or burglary, shall be deemed murder of the first degree.” Purd. 230. All other kinds of murder shall be deemed murder of the second degree. Ibid. 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 ee but the act of violence must be specifically directed against life. 2 sh. 41. 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 ae intent to steal], and killing a man, are instances frequently given. Whart. 0. L. §1107. 38 Am. L. J. 299. Manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied. It is of two kinds: Ist. 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 unlaw- ful act, not amounting to felony, by accident kills another. Whart. C. L. § 932-3. Excusable homicide.is of two kinds: Ist. Where a man doing a law/ul act with- out 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 another 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. §934. 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. § 936-8. II. Act 31 Marca 1860. Purd. 230. Scr. 74, 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 of, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree ; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder ofthe first or second degree ; but if such person shall be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. Sor. 75. Every person convicted of the crime of murder of the first degree, his aiders, abettors and counsellors, shall be sentenced to suffer death, by hanging by the neck; and it shall be the duty of the clerk of the court wherein such conviction takes place, and he is hereby required, within ten days after such sentence, to transmit a full and complete record of the trial and conviction to the governor of this commonwealth. Sxcr. 76. Every person duly convicted of the crime of murder of the second degree, shall, for the first offence, be sentenced to undergo an imprisonment, by separate or solitary confinement, not exceeding twelve years, and for the second offence, for the period of his natural life. Sxot. 77. Every person liable at any former period to be prosecuted for petit treason, shall in future be indicted, proceeded against and punished as is directed in other kinds of murder. 412 HOMICIDE. Sxor. 78. Every person convicted of any voluntary manslaughter, shall be sen- tenced to pay a fine not exceeding one thousand dollars, and to undergo an imprison- ment, by separate or solitary confinement at labor, or simple imprisonment, not exceeding twelve years, and in the discretion of the court, to give security for good behavior during life, or for any less time, according to the nature and enormity of the offence. Sxor. 79. If any person shall be charged with involuntary manslaughter, happen- ing in consequence of an unlawful act, it shall and may be lawful for the district attorney, with the leave of the court, to waive the felony and to proceed against and charge such person with a misdemeanor, and to give in evidence any act or acts of manslaughter; and such person, on conviction, shall be sentenced to pay a fine not exceeding one thousand dollars, and to suffer an imprisonment not exceed- ing two years; or the district attorney may charge both wilful and involuntary Manslaughter in the same indictment, in which case the jury may acquit the party of one, and find him or her guilty of the other charge. Scr. 81. If any person shall administer, or cause to be administered or taken by another, ayy poison or other destructive thing, or shall stab, cut or wound any person, or shall, by any means whatsoever, cause any person bodily injury, danger- ous to life, with intention, in any of the cases aforesaid, to commit murder, such person shall be guilty of felony, and shall, on conviction, be sentenced to pay a fine aot exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years. Sot. 82. If any person shall attempt to administer any poison, or other destruc- tive thing, or shall attempt to cut or stab or wound, or shall shoot at any person, ar shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of ldaded arms at any person, or shall attempt to drown, suffocate or strangle any person, with intent, in any of the cases aforesaid, to commit the crime of mur- der, he shall, although no bodily injury be effected, be guilty of felony, and be sen- tenced to pay a fine of one thousand dollars, and undergo an imprisonment, by reparate or solitary confinement, not exceeding seven years. = III. Murder in the first degree is where a felonious and malicious homicide is committed with a specific intent to take life. 12 H. 386. 4 P. L. J. 156-7. A. 283. But the intent of the defendant is to be collected from his Words and actions. 4 TD. 146. A. 168, 257. 1 Ash. 289. 2 Ash. 41. In the absence of evidence to the contrary, the.law presumes an intent to kill from the use of a deadly weapon. 7 C. 198. If the killing is by one in the attempt to commit a rape, burglary, robbery or arson, the intention is of no consequence; it is murder in the first degree. 7 W. & 8. 418. 1 Bv. Appx. 18. / ; But to constitute murder in the first degree, under this clause of the statute, there must be an attempt to perpetrate one of the enumerated offences; an intent merely is not enough. 1 Gr. 484. ; Under the act of assembly, an unlawful killing, though it may be presumed murder, will not be presumed murder in the first degree. A. 282-8. The burden of proving it so lies on the commonwealth. 1 Wh. Dig. 478, pl. 109. Marder in the second degree is, where a felonious and malicious homicide is committed, but without a specific intent to take life. 4 P. L. J. 157. A. 2838. Bright. R. 186. 2 Ash. 227. Thus, a felonious homicide committed by one in a state of intoxication, is murder in the second degree; when the mind, from intoxication, or any other cause, is deprived 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 re * crimes. 1 Am. L. J. 149. Lewis’ Cr. L. 405. 1 Gr. 484. 4 Smith (N Y.) 9. But the degree of intoxication that will have such effect, must be that degree of drunkenness which deprives one of the power of judging of his acts, and their legitimate consequences. Commonwealth v. Capie, Oyer & Terminer, Phila., 29 April 1853. MS. And see 4 Cr. OC. C. 605. 3 Greenl. Ev. § 148. HORSE-RACING. 413 The true criterion as to the capability of the prisoner to commit murder in the first degree is, not whether he was drunk or sober, but whether he had the power, at the time, deliberately to form and plan in his mind, the design and intention of killing his victim. If, from intoxication, or other cause, the mind is deprived of the power to plan, deliberate upon and purpose the death of another, if such act is the result of impulse, not of deliberation, then’ the perpetrator is not guilty of murder in the first degree. 3 Phila. R. 285. 1 Wr. 45. Involuntary manslaughter is, where it plainly appears that neither death nor any great bodily harm was intended; but death is accidentally caused by some unlawful act, not amounting to felony; or an act not strictly unlawful in itself, but done in an unlawful manner, and without due caution. 78. & R. 428. 2 P. 447. What is carelessness, and what is due care, are matters of fact to be determined by a jury, in each particular case as it arises. Commonwealth v. Kuhn, Pittsburgh Leg. J., 30 April 1853. ” Gus indicted for murder cannot be convicted of involuntary manslaughter ; it must be prosecuted and punished as a misdemeanor. 7 8. & R. 423. 2 P. 447. 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 ensue, the party so intérposing will be justified. 4 P. L. J. 158. When engaged in the suppression of dangerous riots, the sheriff and his assistants are authorized to resort to every necessary means to restore the public peace, and prevent the commission of criminal outrages against person or property. They may arrest the rioters, detain and imprison them. If they resist the sheriff and his assistants in their endeavors to apprehend them, and continue their riotous actions, under such circumstances, the killing then becomes justifiable. 4 P. L. J. 38. The killing of one who appears to be an assailant, is excusable, if there be reasonable apprehension of loss of life, or of great bodily harm, and it appear so imminent at the moment of assault, as to present no alternative of escaping its consequences, but by resistance, even if it turn out afterwards that there was no actual danger. 2 Wr. 265. 2 Comst. 197. ' Porse-Racing, J. Act for the suppression of horse-racing. II. Judicial authorities. I. Act 17 Fesruary 1820. Purd. 523. Ths Sct. 1. All racing, running, pacing or trotting of horses, mares or geldings, for money, goods or chattels, or other valuable things, shall be, and hereby are declared to be common nuisances and offences against this state; and the authors, parties, contrivers and abettors thereof, shall be prosecuted and proceeded against by indictment. Srcr. 2. Each horse, mare or gelding used or employed by the owner thereof, or with his consent, in any race on which any bet or wager shall have been laid, or any purse or stakes shall have been made, shall be liable to be forfeited for the proper county within which such horse, mare or gelding so forfeited shall have been employed contrary to the foregoing provisions; and the said horse, mare or gelding so forfeited, shall, at any time within two months thereafter be seized by _any overseer of the poor or supervisor of the highways of the township in which “uch race shall have been run, or by the sheriff or any of his deputies of the county within which such township shall be situated; and in case of seizure as aforesaid, the officer so seizing shall make information thereof to the next court of common pleas for the county, and such court shall proceed to hear and decide upon such seizure; and in case such horse, mare or gelding shall have been adjudged to be forfeited, such court shall order a sale thereof at public auction, and shall direct 414 HORSE-RACING, the proceeds, after the costs of condemnation shall have been deducted, to be paid to the treasurer of the proper county. Szcr. 8. All wagers and bets which shall have been laid, betted or made on the racing, running, pacing or trotting of horses, mares or geldings, and all promises, agreements, notes, bills, bonds, contracts, judgments, mortgages or other securities or conveyances, which shall havé been made, given, granted, drawn, entered into or executed by any person or persons where the whole or any part of the considera- tion thereof shall be, for any money, goods, chattels or other thing won, laid or betted on the running, racing, trotting or pacing of any horses, mares or geldings, shall be utterly void and of no effect. Szcr. 4, It shall and may be lawful for any person who shall lose money, goods _ or chattels, or any other valuable thing on the racing, running, pacing or trotting of horses, mares or geldings, and shall pay or deliver the same, or any part thereof, to the winner or other person for his use or in his behalf, to recover the same or the value thereof from such winner, with costs, by action of debt, or on the case, in any court of record having cognisance thereof: Provided always, That such suit shall have been instituted within two calendar months after such losing and pay- ment and delivery as aforesaid. Secr. 5. If any person shall contribute to or collect, or shall ask or desire any other person to contribute to or collect any money, goods or chattels to make up a purse, plate or other thing to be run, paced or trotted for as aforesaid, at any: place within this commonwealth, such person so offending shall forfeit and pay the sum of thirty dollars for each offence. Secor. 6. If any person or persons within this state shall print or cause to be printed, set up or cause to be set up, any advertisement mentioning the time and place for the running, pacing or trotting of any horses, mares or geldings, or shall knowingly suffer any advertisement as aforesaid to be set up, in or upon his, her or their dwelling-house, or out-houses, or shall knowingly suffer the same to remain up as coe every person so offending shall forfeit and pay the sum of twenty dollars. Sor. 8. Hach and all of the penalties specified in the 5th and 6th sections of this act, shall be sued for and recovered by the overseer or overseers of the poor of the township wherein the offence shall have been committed, in the name of such township, within two calendar months thereafter, by action of debt, with costs of suit, in any court having cognisance thereof, and the proceeds thereof shall be applied to the use of the poor of the said township; and in case there shall not be in any county or counties, overseers of the poor, then and in that case it shall be the duty of the supervisor or supervisors of the highways of the proper township, and they are hereby required to execute the duties hereinbefore directed to be performed, and in that case the proceeds thereof shall be applied to the improvement of the roads of said township: And it is hereby declared to be the special duty of every such over- seer of the poor or supervisors of the highways, on his own knowledge of the fact, or on information thereof by any person or persons, without delay, to institute and prosecute to effect each and every such suit or suits, under the penalty of ten dollars for each default, to be recovered by any person or persons who shall sue for the same, by action of debt, with costs of suit; and in case any suit or suits so to be brought by the said overseer or overseers of the poor, and supervisor or supervisors of the highways shall fail, the costs that may be payable by him or them, shall be paid or rembursed out of any moneys appropriated for the use of the poor or for the improvement of the public highways. Scr. 8. The said overseer or overseers, and supervisor or supervisors, shall be entitled to retain in his or their hands twenty-five per centum on all sums which he or they may receive by virtue of this act, as a compensation for his or their trouble. II. The following charge of Judge Parsons, in the case of The Commonwealth v. Francis 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 principles Wena eS HORSE-RACING. 415 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 and incorporated districts in the county, this is the first case which has been presented 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 highways 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 indi- vidual 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 per- sonal 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, careless and incautious manner, he was responsible for all the consequences which followed 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. is 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 Jaw 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 publi¢e road; nor is there any- thing unreasonable in this. For why should one citizen yield his rights, to gratify the sportive tastes of another ? “Tf 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 individual 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. These 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 neighbor. “Tt 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 hy 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. 416 HORSE-RACING. “Tf the jury should believe that the defendant, while travelling upon the high- way 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 con- troverted 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 defendant approaching in a carriage, with his horse on a fast run; the prose- cutor instantly endeavored 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 in contact with that of the prosecutor, upset the carriage, threw him aad his wife upon the ground, causing considerable injury to him, and much greater to his wife. : . “Tt 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 witnesses 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 eaused the death of a fellow-being or not. “Tf the jury believe that the defendant was driving his horse at a rapid, immo- derate 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 immoderate gait, and must answer for the consequences.” The jury rendered a verdict of guilty, and the defendant was sentenced to pay a me e ome a dollars and the costs of prosecution. See Bright. R. 186. 3 m. L. J. 313. [ 417 J Horse-Stealing. I. Punishment for horse-stealing. III. Public sale of stolen horses not to II. Reward for apprehension and convic- change the property. tion. IV. Forms of process, &c. I. Acr 31 Marca 1860. Purd. 235. Sor. 105. If any person shall be guilty of horse-stealing, or as at¢essory thereto before the fact, or of having received or bought any horse, knowing the same to have been stolen, the person so offending shall be guilty of felony, and shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceed- ing ten years. II. Act 15 Marcw 1821. Purd. 525. Scr. 1. 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 enti- tled to the reward of twenty dollars for apprehending the person who shall have been convicted of stealing any mare, horse or gelding as aforesaid, and six cents for every mile necessarily travelled in pursuit of the offender: Provided, That the reward offered by this act shall in no wise exclude the person or persons entitled to such reward from being competent witnesses. Szor. 2. It shall be the duty of the court within any county aforesaid, before which any person or persons are convicted of the crime of horse-stealing, to inquire whether any, and if any, who is the person or persons entitled to receive the above rewards, and if more than one person, then in what proportion the said sum or sums ought to be paid to them, and to direct the clerk of said court to certify the same with the name or names of the claimants to the commissioners of the county in which the owner of the horse, mare or gelding resides, who are hereby directed and enjoined to draw their warrant on the treasurer of said county in favor of the said claimant or claimants for the amount so certified, all which shall be done free of all costs and charges to the said claimant or claimants, under the provisions of this act. III. The 7th section of the act 283 September 1780, provides that no sale of any stolen horse, mare or gelding, by an auctioneer, at public vendue, shall be deemed a public sale in market overt, so as to change the property thereof. Purd. 525. 1 Sm. 511. IV. INFORMATION FOR HORSE-STEALING. MIFFLIN COUNTY, ss. Tue 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. p. 1860, who saith that about two months ago a certain black gelding tising 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, laborer, did steal, take and carry away, the said pridine. Further saith not. . He. Taken and subscribed before J. R., Justice of the Peace. WARRANT AGAINST A HORSE-THIEF. MIFFLIN COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of N——,, in the County of Mifflin, greeting: Wuerzas, G. H., of N—— township, in the county of Mifflin, yeoman, hath this day made oath before J. R., one of our gee 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, laborer, did steal, take and carry away, the said gelding. You are, therefore, hereby commanded to 27 418 HOUSE OF REFUGE. take the said A. B., 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., at N—- township aforesaid, the tenth day of April, a. p. 1860. J. R., Justice of the Peace. [s#at.] COMMITMENT OF A HORSE-THIEF. MIFFLIN COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of N—, in the County of Mifflin, and to the Keeper of the Common Jail of the said county, greeting: Wuerzas, A. B., of N- township, in the county of Mifflin, laborer, hath been brought before J. R., Esquire, one of our justices of the peace in and for the said county, by virtue of his warrant, charged on oath of G. H. in the same township, yeoman, with havin, 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. These are, therefore, 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 April, a. p. 1860. J. B., Justice of the Peace. [szat.] Pouse of Refuge. I. Commitments to the house of refuge of III. Judicial decisions. Philadelphia. IV. Form of a commitment to the house of II. Commitments to the house of refuge of refuge. Western Pennsylvania. : Act 10 Aprin 1835. Purd. 529. Sxcr. 1. It shall be lawful for the managers of the house of refuge, at their discretion, to receive into their care and guardianship infants, males under the age of twenty-one years, and females under the age of eighteen years, committed to their custody in either of the following modes, viz.: First, Infants committed by an alderman or justice of the peace, on the complaint and due proof made to him by the parent, guardian or next friend of such infant, that, by reason of incorrigi- ble or vicious conduct, such infant has rendered his or her control beyond the power of such parent, guardian or next friend, and made it manifestly requisite that, from regard for the morals and future welfare of such infant, he or she should be placed under the guardianship of the managers of the house of refuge: Second, Infants committed by the authority aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the managers of the house of refuge, in consequence of vagrancy or of incorrigible or vicious con- duct, and that from the moral depravity or otherwise of the parent or next friend, in whose custody such infant may be, such parent or next friend is incapable or unwilling to exercise the proper care and discipline over such incorrigible or vicious infants: Third, Infants committed by the courts of this commonwealth, in the mole provided in the act to which this is a supplement. Suc. 2. It shall be the duty of any alderman or justice aforesaid, committing a vagrant or incorrigible or vicious infant as aforesaid, in addition to the adjudication required by the Ist section of this act, to annex to his commitment the names and residence of the different witnesses examined before him, and the substance of the testimony given by them respectively, on which the said adjudication was founded. Sgor. 3. It shall be the duty of the president and legal associates of the com- mon pleas of Philadelphia county, the judges of the district court of the city and county of Philadelphia, and the recorder of the city of Philadelphia, alternately, . in such manner as may be arranged between them at a joint meeting for that pur- pose, from time to time held, to visit the house of refuge at least once in two weeks, « HOUSE OF REFUGE. 419 or oftener, if to the said judges it shall seem requisite; and it shall be the duty of the judge or recorder so visiting the house of refuge, carefully to examine into all the commitments to the said house of refuge made by the aldermen, justices or guardians of the poor aforesaid, that have not previously been adjudged upon by one of the said judges or the recorder, in the manner hereinafter directed, which commitments it shall be the duty of the managers of the house of refuge, truly and correctly to lay before such judge or recorder, and on such examination, such judge or recorder shall have produced before him, by the managers aforesaid, their superintendent or agent, the infant or infants described in such commitment, and the testimony upon which he or she shall have been adjudged a fit subject for the guardianship of said managers, or on which he or she shall be claimed to be hele as such, and if, after examining the infant and such testimony, the said judge o1 recorder shall be of opinion that, according to the laws of this commonwealth, regulating the control of infants, a case has been established which in his opinion would, according to law, authorize the transfer, of the parental authority over such infant to the managers of the house of refuge, then and in that case, it shall be the duty of the said judge or recorder to indorse an order on the commitment of the justice or alderman, or guardians of the poor, directing the infant to be con- tinued under the guardianship of the managers of the house of refuge, after which it shall be lawful for said managers to exercise over all such infants the powers and authorities given them by the act to which this is a supplement. But if the said judge or recorder shall be of opinion that such case has not been made out, he shall order such infant to be forthwith discharged, which order shall be obeyed by the managers, under the pains and penalties provided by law against wrongful im- prisonment: Provided, That it shall be the duty of said judge or recorder, at the request of such infant or any person in his behalf, to transfer such hearing to the court-house of the court of which he is a member, in order that the infant may have the benefit of counsel, and of compulsory process to obtain witnesses required in his or her behalf, which such judge or recorder is hereby authorized to award, as fully and amply as any judge or court could do on the hearing of a writ of habeas corpus: And provided also, That nothing in this act contained shall be con- strued to interfere with the provisions of an act entitled “An act for the better securing of personal liberty and preventing unlawful imprisonment,” passed on the 18th day of February 1785, commonly called the habeas corpus act. The act of 23d March 1826 provides that the managers shall, at their discretion, receive into the said house of refuge such children who shall be duly convicted of criminal offences, as may be, in the judgment of the court of oyer and terminer or of the court of quarter sessions of the county of Philadelphia, deemed proper objects. Purd. 529. By the act 2d March 1827 they shall also receive such children who may be con- victed in any court of criminal jurisdiction out of the city of Philadelphia of any offence which, under existing laws, would be punished by imprisonment in the penitentiary, as may be, in the judgment of the said courts, deemed proper objects for the house of refuge. Purd. 529. The power of the managers over such children extends to their arrival at the age of twenty-one years; except in the case of females who at the time of their commitment are under the age of sixteen, in which case, their charge over them ceases at the age of eighteen years. Purd..529. The managers are invested with power to place the children committed to their care, at such employments, and to cause them to be instructed in such branches of usefti, knowledge, as may be suitable to their years and capacities; and with their consent may bind them out as apprentices, to learn such proper trades and employ- ments as in their judgment will be most conducive to their reformation and amend- ment, and will tend to the future benefit and advantage of such children. Purd. 529. IL. Aor 22 Aprin 1850. Purd. 531. Srcr. 15. It shall be lawful for the board of managers of said house of refuge, of Western Pennsylvania,] at their discretion, to receive into their care and guard- lanship infants, males under the age of twenty-one years, and females under the 420 HOUSE OF REFUGE. age of twenty-one years, committed to their custody, in either of the following modes, to wit: ‘ 1. Infants committed by an alderman or justice of the peace on the complaiut, and due proof made thereof, by the parent, guardian or next friend of such infant, that by reason of incorrigible or vicious conduct, such infant has rendered his or her control beyond the power of such parent, guardian or next friend, and made it manifestly requisite that from regard to the morals and future welfare of such infant, he or she should be placed under the guardianship of the managers of the said house of refuge. 2. Infants committed by the authority aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the managers of the said house of refuge, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity or otherwise of the parent or guardian, or next friend, in whose custody such infant may be, such parent, guardian or next friend is incapable or unwilling to exercise the proper care and discipline over such incorrigible or vicious infant, 3. Infants who shall be taken or committed as vagrants or upon any criminal charge, or duly convicted of criminal offences, as may, in the judgment of the court of oyer and terminer, or of the court of quarter sessions of the peace of any county within the western district: and the said managers shall have power to place the said children committed to their care, during their minority, at such employment, and cause them to be instructed in such branches of useful knowledge as may be suitable to their years and capacities; and they shall have power at their discretion to bind out the said children, with their consent, as apprentices during their minority, to such persons and at such places, to learn such proper trades and employments as in their judgment will be most ‘conducive to the reformation and amendment, and will tend to the future benefit and advantage of such children. Szor. 16. It shall be the duty of any alderman or justice aforesaid, committing a vagrant, or incorrigible or vicious infant as aforesaid, in addition to the adjudica- tion required by the 6th section of this act, to annex to his commitment the names and residences of the different witnesses examined before him, and the substance os ey given by them respectively, on which the said adjudication was founded. Scr. 17. It shall be the duty of the president judge of the court of common pleas and the judges of the district court of Allegheny county, or the judges of the court of common pleas of Westmoreland county, alternately, in such manner as may be arranged between them at a joint meeting for that purpose, from time to time held, to visit the said house of refuge at least once in two weeks, or oftener if to said judges it shall seem requisite; and it shall be the duty of the judge so visiting the house of refuge, carefully to examine into all the commitments to the said house of refuge, made by the aldermen or justices aforesaid, that have not previously been adjudged upon by one of the said judges in the manner hereinafter directed, which’ commitments it shall be the duty of the managers truly and cor- rectly to lay before such judge; and on such examination such judge shall have produced before him by the managers aforesaid, their superintendent or agent, the infant or infants described in such commitment and the testimony upon which he or she shall have been adjudged a fit subject for the guardianship of the said managers, or on which he or she shall be claimed to be held as such; and if after examining the infant and such testimony the said judge shall be of opinion that, according to the laws of this commonwealth regulating the control of infants, a case has been established which, in his opinion, would, according to law, authorize the transfer of the parental authority over such infant, to the managers of the said house of refuge, then and in that case it shall be the duty of the said judge to indorse an order on the commitment of the alderman or justice, or direct the infant to be continued under the guardianship of the said managers, after which it shall be: lawful for the said managers to exercise over all such infants the powers and authorities given them by this act; but if the said judge shall be of opinion that such case has not been made out, he shall order such infant to be forthwith dis- charged, which order shall be obeyed by the managers, under the pains and penalties provided by law against wrongful imprisonment: Provided, That it shall be the HOUSE OF REFUGE. 421 duty of said judge, at the request of such infant, or any person on his or cher behalf, to transfer such hearing to the court-house of the court of which he is a member, in order that the infant may have the benefit of counsel and compulsory process, to obtain witnesses in his or her behalf, which such judge is’authorized to award as fully and amply as any judge or court could do on the hearing of a writ of habeas corpus: And provided also, That nothing in this act shall be construed to interfere with the provisions of an act for the better securing the personal liberty, and preventing unlawful imprisonment, passed on the 18th day of February 1785. III. The house of refuge is not a prison, but a school, its object is reformation by training its inmates to industry, by imbuing their minds with principles of morality and religion, by furnishing them with means to earn a living, and, above = ee them from the corrupting influence of improper associates. 4 A commitment to the house of refuge of a minor found guilty of larceny, in a court of quarter sessions, is not a conviction, and does not disqualify the party as a witness. Commonwealth v. Robinson, 3 Pittsburgh Leg. J. 211. : In every other part of Pennsylvania, except the city and county of Philadelphia, (and the western district,) a conviction for a crime punishable by confinement at hard labor in the penitentiary, must precede the introduction of a minor into the refuge. 1 Ash. 250. The master of an apprentice is not a next friend, on whose complaint the minor may be committed to the house of refuge. Vaux’s Dec. 146. ‘ A father cannot transfer the custody of the person of his child to the managers of the house of refuge, unless such child be adjudged a proper subject for the house of refuge by due course of law. 1 Ash. 248. Where a child under fourteen years of age is adjudged a vagrant, the circum- stances of the case ought to be urgent, unequivocal and decisive. Ibid. An infant committed to the house of refuge by a justice, on a charge of felony, is entitled to be discharged on giving bail to answer for his appearance, and demand- ing a jury trial. Kelly’s Case, Q. S., Phila., 22 June 1853. MS. But unless the record shows that the commitment.was for the commission of a felony, the court will refuse to discharge; the parents appearing to be unable to restrain the infant from the commission of criminal offences. Rebhun’s Case, Q. S., Phila., 6 August 1853. MS. The adjudication of the justice is in no respect conclusive, and the whole subject is open on the hearing of a writ of habeas corpus. 1 Ash. 248. IV. CoMMITMENT TO THE HOUSE OF REFUGE. CITY OF PHILADELPHIA, ss. . Wuereas complaint and due proof have this day been made before me, the subscriber, an alderman of the said city, by A. B., the father of E. B., an infant under the age of Poxieon years, that the said infant, by reason of vicious conduct, has rendered his control eyond the power of the said complainant, and made it manifestly requisite that, from regard to the morals and future welfare of the said infant, he should be placed under the guardianship of the managers of the house of refuge, I do therefore, in pursuance of the act of assembly in such case made and provided, commit the said infant to the custody of the said managers, and certify to the said managers, that the said infant is, in my Opinion, a proper subject for the said house of refuge. Wirness my hand and seal, this 5th day of June, a. v. 1860. J.B., Alderman. [szat.] The following are the names and residence of the different witnesses examined, and the substance of the testimony given by them respectively on which the said adjudication was founded, to wit: G. S., of the city of Philadelphia, laborer, being duly sworn, stated in substance ——. P. H., of the said city, cordwainer, being duly affirmed, stated in substance ——. J. B., Alderman. [ 422 } Hunting, 1. Constable to present offences. III. Fines appropriated. II. Unlawful times of hunting, and fines, IV. Forms required under the act of 1760, I. Act 9 Aprit 1760. Purd. 534. Sror. 2. Makes it the duty of the township constable to give information of any breach of this act. II. Sucr. 3. If any person or persons shall hunt, chase or follow, with a design to kill or destroy any buck, doe, or fawn, within the lands already or hereafter 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 offence shall be committed, 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. Szcr. 9. 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 REQUIRED UNDER [HE ACT OF ASSEMBLY OF 1760. FORM OF A WARRANT FOR UNLAWFUL HUNTING. COUNTY OF MONTOTR, ss. The Commonwealth of Pennsylvania, 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 KE. F., 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. p. 1860, last past, hunted and killed a “ buck, doe or fawn,” in the county aforesaid, con- trary 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 your warrant. Witness the said J. R., at N——, who hath hereunto set his hand and seal the 20th day of September, a. p. 1860. J. R., Justice of the Peace. [szat.] 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 :— RECORD OF A CONVICTION FOR ILLEGAL HUNTING. COUNTY OF MONTOUR, ss. Bz it remembered, that on the 20th day of September, a. p. 1860, E. F., of N. town- ship, in the said county of Montour, 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. p. 1860, 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 obth day of September 1860, the said A. B. waa, 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 duly sworn to speak the truth, the whole truth, and nothing but the truth; and being duly examined, testified that on the firat day of July 1860, he did see the said A. B. hunt and kill a certain buck at N——, in the said county of Montour; and the said A. B. being HUNTING. 423 called upon for his proofs and allegations, and not adducing any, T consider and adjudge him, the said A. B., to be guilty of the offence charged against tic, and adjudge that he, the said A. B., shall forfeit 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 9th 1760. Iz. testimony whereof, I, the said justice, set my hand and seal to this record of conviction, the 20th day of September a. p. 1860, J. R., Justice of the Peace. [szat.] FORM OF AN EXECUTION TO ENFORCE THE PENALTY FOR ILLEGAL HUNTING. COUNTY OF MONTOUR, ss. The Commonwealth of Pennsylvania, To the Constable of N——— township, or to the next constable of the said county most convenient to the defendant, greeting: . Wuerzas, A.B., of N——. township, was on the 20th day of September 1860, before 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. p. 1860, last past, hunted and killed in the county aforesaid, a ‘‘ buck, doe or fawn,” contYary 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 indorse hereon the time you make your levy, and hereon, or on a schedule to be hereto annexed, a list of the same, and, within twenty days from the date hereof, expose the same to sale by public vendue, you having given due notice thereof by three or more advertise- ments, put up at the most public places within your township, and returning the over- pie if any, of the said sale, to the said A. B., and that you pay one moiety of the said ‘orfeiture unto C. D., who informed our said justice of the commission of the said offence, and the other moiety thereof to the overseers of oe 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 indorsed 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. 1860. Witness our said justice at N——, who hath hereunto set his hand and seal the 20th day of September, a. p. 1860, . J. R., Justice of the Peace. —[suat.] 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. , [ 424 ] Jincest. I. Provisions of the Penal Code. IL Judicial decisions. I. Aor 81 Maron 1860. Purd. 224. Sxor. 39. If any person shall commit incestuous fornication or adultery, or inter- marry within the degrees of consanguinity or affinity, according to the following table (established by law), he or she shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years; and all such marriages are hereby declared void. . The table of degrees of consanguinity and affinity is as follows: Degrees of Consanguinity. A man may not marry his mother. Do. .:. . do. . . father’s sister. Do. . . . do. . . mother’s sister. Do. . do. . . sister. Do. . do. . . daughter. Do. . do. the daughter of his son or daughter. A woman may not marry her father. Do. . do. . . . father’s brother. Do. . do. . . mother’s brother. Do. do. . brother. Do. do. . «. » son. Do. do. . . the son of her son or daughter. Degrees of Affinity. A man may not marry his father’s wife. Do. . do. . . son’s wife. Do. . do. . . son’s daughter. Do. *. do. . . wife's daughter. Do. . do. . the daughter of his wife’s son or daughter. A woman may not marry her mother’s husband. Do . . . do. daughter’s husband. Do. . . do. . . husband’s son. Do. do. . .the son of her husband’s son or daughter. TI. Illicit intercourse with one recognised as a daughter, and with whose mother the defendant lived in reputed wedlock, is sufficient to convict. 6 P. L. J. 236. Illicit intercourse with a natural daughter, is incest within the statute. 30 Ala. 521. To constitute the crime of incest, the intercourse must be by mutual consent; if accomplished by force, it is rape. 1 Parker C. R. 344. ieee an ue for incest, evidence of previous familiarities is admissible and relevant, as they constitute a necessary part of the princi ion. 5 Mich. 305. See 4 Dexa 128. se eee An indictment for incest with a daughter must aver that the defendant had intercourse with his daughter “knowing her to be such.” 2 Carter 439. An averment that the defendant had intercourse with P. B., the said P. B. then and there being the daughter of the defendant, is a sufficient allegation of the rela- tionship of the parties, 17 Il]. 426. On an indictment for incest, an admission of the relationship made by the de- fendant, is competent evidence. 5 Mich. 805. [ 425 ] Indictment, WHATEVER amounts to a public wrong, may be made the subject of indictment; as the poisoning of chickens, cheating with false dice, fraudulently tearing a promissory note, breaking windows with stones, though there be not a sufficient number of persons to constitute a riot, the embezzlement of public moneys, killing : ee 1 D, 338. Or offering to bribe, though the bribe is not accepted. _ 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 com- mission of any specific crimes; is indictable as a misdemeanor at common law. Whart. C. L. §38. Disobedience to an act of assembly is an indictable offence at common law. 1 Barr 224. 13S. & R. 429. 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. 5W.& 8.461... 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. L. 170, 221. Infant. INFANT, a person under éwenty-one years of age. Co. Litt. Y71. A person is of full age, the day before the twenty-first anniversary of his birthday. 1 Bl. Com. 462. Thus, if a man be born at any hour on the Ist day of January 1840, he is of age to do any legal act on the morning of the 31st of December 1861, though he may not have lived twenty-one years by nearly forty-eight hours, because the law does not regard the fraction of a day. 1 Bouv. Inst. 138-9. 3 Harring. 557. 4 Dana 597. Within the age of seven. years, an infant cannot be the subject of a criminal prosecu- tion. At fourteen years of age an infant is dold capaz, 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 con- victed even capitally. 1 Ash. 248. Whart. 0. L. §58. Lewis’ CO. L. 599. 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. An infant is liable for necessary victuals, apparel, physic and surgical attendance, 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 business; or for money supplied to buy necessaries with, unless it be actually so expended. 2 Stark. 726. 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 perform. 2 P. R. 338. 426 INFANT. An infant may in some cases bind himself for necessaries, but he cannot do 80 when he has got a guardian or parent to supply his wants. 4 W. 80. : 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. 237. : 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. It is incumbent on a tradesman, before he trusts an infant with what may appear to be necessaries, to inquire whether he is provided by his friends. Peake N. P. 229. 6 W. & S. 80. 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. 389 Eng. C. L. 902. 48 Ibid. 606. 6 W. & S. 80. The tradesman is not bound to inquire whether, or to what extent, the infant is supplied with the like articles from other sources. Ibid. An infant entering into partnership with other persons, is not responsible for the debts contracted during his infancy. 78. & R. 54. 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 losses, if he choose to avail himself of his minority. Gow on Part. 235. Where 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 cus- tomer, without giving distinct proof that the son [though proved to be a minor] es no property in the banking fund, or share in the business, as a partner. 14 ast 210. 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 pro- mise (2 Hsp. 268); and such promise must be voluntary. 5 Esp. 102. A note given by an infant, becomes good by a promise to pay it, made after the maker of the note came of age. 2 Root 477. So in case of a bond. A promise, after attaining majority, to pay a debt contracted during infancy, “as ae a he got able,” will not support an action, without proof of ability to pay. 8 A promise, in affirmance of an infant’s contract, must be made to the party in interest, or his agent. Declarations to strangers are unavailing. Ibid. I apprehend that ¢rover 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. : Where an infant 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. 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. 353, He can give his infancy in- evidence under the general issue. 4 D. 180. An infant may enforce his own contracts although they cannot be enforced against him. Lord TEnrerpEN. If the infancy of the plaintiff be 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. : [ 427] Jinformers. InrormeEr. The person who informs against, or prosecutes in any of the courts oe gece those who offend against any law or penal statute. Whart. Law Dict. 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. 8 W. & S. 346. Wherever a thing is prohibited by a statute under a penalty, and that penalty, or any part thereof, is given to him who will sue for the same, any person may bring an action for the penalty and recover the same. Esp. on Penal Actions 18. But an infant cannot be a common informer; nor a corporation, unless specially authorized. Ibid. 19-20. A common informer may maintain an action of debt, though the statute giving the penalty, does not, in express terms, provide for the form of action. Ibid. 56. An informer is not a competent witness, where the statute gives him a portion of the penalty to be recovered. Boscawen on Convictions 69. And he cannot make himself a witness by an assignment of his interest. 1 Ash. 413. Informers, under the summary proceedings authorized by the “‘ Act for the pre- vention of vice and immorality,” and other. similar acts, are no¢ liable for costs, if they fail in establishing their accusations. 1 Ash. 413. Inns and Caberns. I. Statutes regulating innkeepers. 14. Pleadings in actions for liquors sold. 1. To keep good entertainment. 15. Licenses to be recoverable. 2. Not to encourage gambling. 16. Licenses to be framed. 8. Nor to allow gambling in their 17. Penalty for permitting drunkenness in houses. their houses. 4. Penalty on conviction. 18. Distribution of penalties. 5. Penalty for harbouring apprentices, 19. Penalty for employing intemperate &e. persons. 6. Tavern reckonings not recoverable. 20. Punishment for selling liquors in viola- 7. Such suits to abate. tion of the license laws. 8. Penalty for selling without license. 21. Informer to be a witness. / 9. By what measure liquors to be sold. 22, Lien on horses at livery. 10. Penalty for furnishing liquors to in- 23. Limitation of liability. ; temperate persons. : 24, How notice thereof to be given. 11. How notice may be given. 25. Lien on goods of boarders. ; 12. Civil liability for damages. II. Authorities in relation to inns and inn- 13. Compensation of prosecutors. keepers. I. Act 11 Maron 1834. Purd. 535. 1. Szor. 17. Every innkeeper shall keep good entertainment for man and horse, under penalty of five dollars for every case of neglect. . ; . 2. Srcr. 18. If any innkeeper, tavern-keeper or other retailer of wine, spirituous or other strong drink, shall incite, promote or encourage any 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, fourteen dollars, and upon a second conviction of the offence, twenty-eight dollars. ; 3. Sror. 19. And if any such person shall permit and allow any kind of game of ad- dress or hazard, or any playing, betting or gaming for money, or other thing of value whatsoever, either at cards, dice, billiards, bowls, shuffle-boards or any game or 428 INNS AND TAVERNS. 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. 4, Sucr. 20. And if any innkeeper or tavern-keeper, or other licensed retailer 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 incapable of being again licensed in like manner for one year thereafter; and upon 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 com- monwealth. 5. Szor. 21. No innkeeper or tavern-keeper shall receive, harbor, entertain or trust any person under the age of twenty-one years, or any apprentice or servant, know- ing him to be such, or after being warned to the contrary by the parent, guard- ian, master or mistress of such minor, apprentice or servant, under penalty, for the first or second offence, of three dollars over and above the forfeiture of any debt contracted by such minor, apprentice or servant, for liquors or entertainment; 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. 6. Sxcr. 22. No innkeeper or tavern-keeper shall trust or give credit to any per- son whataoever for liquors, under penalty of losing and forfeiting such debt. 7. Szor. 23. Every suit brought by an innkeeper or tavern-keeper, for tavern reck- onings as aforesaid, or fora 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. 8. Srcr. 25. 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.(@) Aor of 1705. Purd. 535. 9. Secr. 1. 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 pro- vince, shall sell beer and ale by wine-measure to all persons as drink it in their houses, and 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. Act 8 May 1854. Purd. 666. 10. Secor. 1. Wilfully furnishing intoxicating drinks by sale, gift or otherwise, to any person of known intemperate habits, to a minor, or to an insane person, for use as a beverage, shall be held and deemed a misdemeanor, and upon conviction thereof the offender shall be fined not less than ten nor more than fifty dollars, and undergo an imprisonment of not less than ten nor more than sixty days; and the wilful furnish- ing of intoxicating drinks as a beverage to any person when drunk or intoxicated shall be deemed a misdemeanor, punishable as aforesaid. , 11. Sror. 2. It shall be lawful for any member of the family, or blood relation of an intemperate person, or any overseer of the poor, or any magistrate of the district in which such intemperate person resides, or has legal settlement, or the committee of an habitual drunkard, to give a distinct notice, verbal or written, to any innkeeper, merchant, grocer, distiller, brewer or other person manufacturing, selling or having intoxicating nor forbidding him or them from furnishing such intemperate per- son or habitual drunkard with intoxicating drinks or liquors, and if, within three months after such notice, any one to whom the same is given shall furnish or cause to be furnished intoxicating liquors to such intemperate person or habitual drunkard to be used as a beverage, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished as aevwided th the first section of this act. (a) Punishment increased, infra 20. INNS AND TAVERNS. 429 e 12. Sxor. 8. Any person furnishing intoxicating drinks to any other person in vio- lation of any existing law, or of the provisions of this act, shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and any one aggrieved may recover full damages against such person so furnishing, by action on the case, instituted in any court having jurisdiction of such form of action in this commonwealth. 13. Sxcr. 6. Any person prosecuting for an offence indictable under this act shall, upon conviction of the offender, receive such reasonable sum for expenses, services and time expended as may be directed by the court, not exceeding twenty dollars, to be taxed and paid as a part of the costs in the cause, such allowance to be exclusive of compensation to such prosecutor as a witness under existing laws: Provided, That such allowance shall not be made in more than one case at the same term to one person. 14. Secr.7. No action shall be maintained or recovery had in any case for the value of liquors sold in violation of this or any other act, and defence may be taken in any case against such recovery without special plea or notice. 15. Sxcr.8. Itshall be lawful for the courts of quarter sessions to revoke any licenses they may have granted, or that may have been granted under the general law regu- lating licenses in the city and county of Philadelphia for the sale of liquors, whenever the party holding a license shall be proved to have violated any law of this common- wealth relating to the sale of liquors, or whenever the premises of such party shall become the resort of idle and disorderly persons so as to disturb the general peace of the neighborhood, upon notice given to the person so licensed Act 31 Marcu 1856. Purd. 667-8. 16. Scr. 22. Every person licensed to sell spirituous, vinous, malt or brewed liquors under this act, shall frame his license under a glass, and place the same so that it may at all times be conspicuous in his chief place of making sales, and no such license shall authorize sales by any person who shall neglect this requirement. 17. Sxcr. 30. Any person who shall sell spirituous or other intoxicating liquors as aforesaid, to any person who shall drink the same on the premises where sold, and become thereby intoxicated, shall, besides his liability in damages under any exist- ing law, be fined five dollars for every such offence, to be recovered in debt before any alderman or justice of the peace, by any wife, husband, parent, child, relative or guardian of the person so injured, and levied upon the goods and chattels of the defendant without exemption: Provided, That suits shall not be instituted after twenty days from the commission of the offences in this and the preceding section. 18. Sxcr. 31. It shall be the duty of the court, mayor, alderman or justice of the peace, before whom any fine or penalty shall be recovered, to award to the informer or prosecutor, or both, a reasonable share thereof for time and trouble, but not in any case exceeding one-third; and the residue as well as the proceeds of all forfeited bonds as aforesaid, shall be paid to the directors of the public schools of the proper district, except in the city of Philadelphia, where they shall be paid to the city treasurer, to be applied for school purposes; and nothing herein contained shall prevent any such informer or prosecutor from becoming a witness in any such case. 19. Szor. 34. If any person engaged in the sale or manufacture of intoxicating liquors, as aforesaid, shall employ or permit any intemperate person in any way to assist in such manufacture or sale, it shall be deemed a misdemeanor, and any person so offending, shall be liable to conviction and punishment, as provided in the 28th section of this act. The 28th section of this act, which was repealed by the act of 20th April 1858, 3 11, provided that the party offending should be sentenced to pay a fine of not less than $10 nor more than $100, with the costs of prosecution, and to stand committed until the sen- tence of the court is complied with, not exceeding thirty days; and upon a second or subsequent conviction, in addition, to undergo an imprisonment in the county jail of not Jess than one month nor more than three months, and if licensed, to forfeit such license, and be incapacitated from receiving another for five years therefrom. 430 INNS AND TAVERNS, Act 20 Aprit 1858. Purd. 666. 20. Secor. 11. Any unlawful sale of vinous, spirituous, malt or brewed liquors, or of any admixtures thereof, shall be deemed a misdemeanor, and, upon conviction thereof, the offender shall pay a fine of not less than ten nor more than one hundred dollars, with the costs of prosecution, and upon a second or any subsequent convic- tion, shall pay a fine of not less than twenty-five nor more than one hundred dollars, with the costs of prosecution ; (a) and in case of a second or subsequent conviction, the court may, in its discretion, sentence the offender to imprisonment, not exceed- ing three calendar months; and in case any such offender, convicted of a second or subsequent offence, is licensed to sell any such liquor, such license shall be deemed forfeited and void; and no person convicted of a second or subsequent offence shall be again licensed for two years thereafter. 21. Sxcr. 12. No prosecutor or informer in any prosecution for the illegal sale of intoxicating liquors, shall receive any portion of the fine imposed on the defendant in any case where such prosecutor or informer is a witness for the commonwealth ; and in every case of the conviction of a person returned by a constable, such con- stable shall receive two dollars, to be taxed in the costs. Aot 7 Aprit 1807. Purd. 536. 22. Sxcr. 1. All livery-stable keepers and innkeepers within this commonwealth shall 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 said 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, provided 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 payment in writing left at his last place of abode, the livery-stable keeper, or innkeeper, may cause the horse or horses aforesaid to be sold at public sale according to law, and after deduct- ing 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 agent of the person who delivered the horse or horses to him for keeping: Provided always, that nothing in this act contained, shall be construed to impair any right 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. Act 7 May 1855. Purd. 536. 23. Sor. 1. Whenever the proprietor or proprietors of any hotel, inr ”39 00 L. DT, @: Ge | REM oe ee ge, ge URE BO Dr.S.S.P. . : Medical attendance, . ; ‘i ; 5 00 J.R., Esq. . . . Professionalservices,. . . » | ° 10 00 L. G. T. ‘i ‘ . Claim disputed, ; . . - - about 318 00 J. Well, . 7 fi Indorsement of note, ‘ ‘ : ‘ . 150 00 TW ‘ a 7 oney borrowed, , ; i : - - 527 00 (a) If an assignment or Dill of sale be together with an i made, it is necessary to state the fact and file property ae Se RepeanleyOF ite 8 copy of the instrument in the petition, INSOLVENT LAWS. 441 Statement of the causes of the within-named Petitioner’s Insolvency, and of the extent of his losses. : Your petitioner commenced business in January, 1856, upon a borrowed capital of $527 ; 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 honorable 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 $200; 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. XI. Form oF NOTICE. Philadelphia, November 2, 1860. Take notice, that I have applied to the honorable Judges ofthe court cf common. pleas for the city and county of Philadelphia, for the benefit of the Insolvent Laws 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 Sixth and Chestnut streets, in the said city of Philadelphia—when aud mien you: may attend, if you think proper. Yours, &c. A. B. o ELF. Norz.—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 be personal, it is requisite it be served on the creditor personally, or left at his dwelling-house. An affi- davit 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 served by the petitioner himself. XII. ForM oF AN INSOLVENT’S DISCHARGE. PHILADELPHIA COUNTY, ss. Be if REMEMBERED, that at a court of common pleas held at Philadelphia, for the city and county of Philadelphia, in the commonwealth of Pennsylvania, [szaL.] in the term of September, in the year of our Lord one thousand eight hundred and sixty, upon the petition of A. 8. 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 appear at the court-house in the said city, on the eighteenth.day of November then next, to show cause, if any they had, why he should not receive the benefit of the provisions of the said acts of assembly ; and he having appeared before the said court on the eighteenth day of November, pursuant to the order of the said court, and it appearing that he had given public notice in the North American and Philadelphia 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 peceze 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 be granted, he took the oath prescribed by law for the relief of insolvent debtors; and he having made an assign- ment of all his estate, real and personal, in trust for the use and benefit of all his creditors, to P. R. & 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 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, occa- sioned, owing or becoming due before the time of such assignment. In testimony where- of, 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 sixty. N. 0O., Prothonotary. [ 442 J Jinstalments., On a covenant or promise to pay a sum of money by instalments, an action of covenant, on assumpsit, will lie, cmmediately, on the non-payment of the first instal- ment. 1 Inst. 292. So, if money be awarded to be paid at different days, assumpsit will lie, on the award, for each sum, as tt becomes due, and the plaintiff 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 ¢oties quoties, [until all the debt is recovered.] 2 Saund. 337. . A promissory note, payable by instalments, is negotiable; and the indorser is entitled to a presentment upon the last day of grace after each day of payment, and to notice, if such particular instalment be not paid when due. 11 M. & W. 374. But, it seems, that laches as to one instalment, in ordinary cases, only discharges an indorser as to that one. And that a note payable by instalments cannot be indorsed over for less than the entire sum due upon it. Byles on Bills 5. A note payable by instalments is negotiable, within the statute, although it con- tain a provision that on failure of payment of one instalment, the whole debt is to become payable. 12 M. & W. 189. On a promissory note payable by instalments, an action of debt will not lie till the last day of payment be past. 1H. Bl. 547. But if a note be payable by instal- ments, on the face of it, an action of asswmpsit lies for each instalment. If, however, the note be payable by instalments, but not on the face of it, only one action of assumpsit lies; and though in such case a confession of judgment be taken for the amount of the first instalment, the note is discharged. 1 C. & M. 487. 1 M.& Rob. 263. Interest. I. What is interest ? IV. Interest on verdicts and judgments. IL. The rate of interest in all the states, &c. ¥V. Authorities and judicial decisions. III. Interest in Pennsylvania. I. Inrerssr of money, the legal profits or recompense allowed on loans of money to be taken from the borrower by the lender. Jacob. II. The following are the rates of interest in the several states of the Union. In Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Tennes- see, Kentucky, Indiana, Missouri, and the District of Columbia, six per cent. In Ohio, Hlinois and Arkansas, six per cent., and by agreement as high as ten. In Florida, six per cent., and by agreement as high as eight. In Iowa, six per cent., and by agreement any amount. In New York, South Carolina and Georgia, seven per cent. In Michigan, seven per cent., and by agreement as high as ten. In Wisconsin, seven per cent., and by agreement as high as twelve. In Alabama, eight per cent. In Mississippi, eight per cent. for a loan of money; six per cent. on other contracts. In Texas, eight per cent., and by agreement as high as twelve. In California, ten per cent. and by agreement any amount. In Louisiana, five per cent., and by agreement as high as eight. III. The lawful rate of interest for the loan or use of money in all cases where no express contract shall have been made for a less rate, shall be six per cent. per annum, and the Ist and 2d sections of the act passed 2d March 1723, entitled “An «| INTEREST. 443 act to reduce the interest of money from eight to six per cent. per annum,” be and the same is hereby repealed. Act 28 May 1858, § 1. Purd. 561. When a rate of interest for the loan or use of money exceeding that established by law shall have been reserved or contracted for, the borrower or debtor shall not be required to pay the creditor the excess over the legal rate, and it shall be lawful ‘for such borrower or debtor at his option, to retain and deduct such excess from the amount of any such debt; and in all cases where any borrower or debtor shall here- tofore or hereafter have voluntarily paid the whole debt or sum loaned, together ‘with interest exceeding the larful rate, no action to recover back any such excess shall be sustained in any court of this commonwéalth, unless the same shall have been commenced within six months from and after the time of such payment: Provided always, That nothing in this act shall affect the holders of negotiable paper taken bond ide in the usual course of business. Ibid. § 2. Commission merchants and agents of parties not residing in this commonwealth, be and they are hereby authorized to enter into an agreement to retain the balances of money in their hands, and pay on the same a rate of interest not exceeding seven per centum per annum, and receive a rate of interest not exceeding that amount, for any advance of money made by them on goods or merchandise consigned to them for sale or disposal: Provided, That this act shall only apply to moneys received from or held on account of, and advances made upon goods consigned from im-. porters, manufacturers and others living and transacting business in places beyond the limits of the state. Act of 21 May 1857, § 1. Purd. 561. IV. 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. Act 1700, § 2. Purd. 561. It shall be lawful for any party or parties, in whose favor any verdict may be rendered for a specific sum of money, to collect and receive interest upon such sum from the date of the verdict; and every general judgment entered upon such ver- dict, whether by a court of original jurisdiction or by the supreme court, shall be deemed and held to be a judgment for the sum found by the verdict, with interest there- on from the date of such finding : Provided, That nothing in this act contained shall prevent any court from directing special verdicts, or entering special judgments whenever the same shall be deemed just and proper. Act 6 April 1859,§ 1. Purd. 561. V. Interest is an incident of every judgment in Pennsylvania. 4D. 251. Toa decree of the orphans’ court. 4H. 151. And to an award, from the date of its entry. 4 C. 211. 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 agreement, acertain time is fixed for payment; on money lent and advanced for work and labor done; on arrears of rent, unless it would be inferred by the landlord’s con- duct that he did not mean to insist upon it, or he demand more than is due, or there be 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 B. 162. 18. & R. 176. 1D. 815, 349. 2 D. 193. 4 D. 289. ‘ By the custom of Pennsylvania, a book account for goods sold, bears interest from the end of six months after the sale and delivery. 6 C. 346. 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 8. & R. 393. No interest is allowed on an unsettled account, unless the party claiming interest bring himself within one of the recognised exceptions to the rule. 5 C. 360. A bill payable on demand carries interest only from the time of demand. 16 8. & BR. 264, A. 187. . : Where money is received, as well as paid in a mistake, and neither fraud nor surprise, nor suppressio vert, [suppression of the truth,] nor suggestio falsi, [false 444 INTEREST. sugeestion,] can be imputed to either party, interest shall not be allowed, in an action to recover the money back. 1 D. 52. 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. 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. 98. & R. 268. A factor or agent, who does not with due diligence remit the money of his princi- pal, is chargeable with interest. 1 D. 343. , The plaintiff, in an action of covenant on a ground-rent deed, is in general enti-. tled to interest on the arrears of ground-rent from the several days on which the ground-rent was payable. 4 Wh. 516. This, however, is a question depending on the equity of the particular case. It is recoverable, whenever payment has been unjustly withheld. 9 C. 435. An assignee of the lessee ought not to be charged with interest on arrears which accrued prior to the conveyance to him. Ibid. 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 com- mence. 1 Ash. 305. See 11 ‘Leg. Int. 31. 2 Am. L. R. 448. . 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. In cases where interest is not of course, but depends on the conduct of the parties, if the defendant before suit offer to pay as much as is due, and the plain- tiff refuse to receive it, the defendant is not liable to pay interest. But if the plaintiff insist on too much, and the defendant offer too little, there is a necessity for the suit, and the defendant must pay interest. 3 B. 295. 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 B. 152. If a party accept the principal of his debt, he cannot afterwards sue for the interest. 3 Johns. 229. Where a balance of an account is paid without any charge of interest, mterest cannot afterwards be demanded. 3 Johns. Ch. 587. ; Money paid on account of a bond should first be applied to the discharge of the oe due, and the residue credited towards the satisfaction of the principal. 1 D. 378. Bond dated in 1830, conditioned for the payment of money on the Ist 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. 5 W. & S. 51. 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. 188. 2 W. & 8. 327. 2 W. C. C. 253. 3 Johns. Ch. 587. A practice, by a storekeeper, :o 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. 168. & R. 257. Where a note is made payable, in a certain number of years, with interest annu- ally, only simple interest can be recovered on the principal sum. 8 Mass. 453. Although interest upon interest is, in general, unlawful, yet there are cases in which interest is considered as changed into principal, and permitted to carry interest; as where a settlement of accounts takes place a/ter 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 a/ter 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 JAIL. 445 necerer such interest, either at law or in equity. 4. Y.220. 7S.&R.15. 11 Vesey r. 93. 7 Compound interest may be recovered on an express promise, or one implied by law as part of the contract. 1 Bald. 586. 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 reason i time, becomes a settled account, bearing interest from the time it is stated id. ‘Compound interest is not recoverable, unless there has been a settlement between the parties, or a judgment, whereby the aggregate amount of principal and interest due is turned into a new principal; or where ,there is a.special agreement to do so, in such form as to be valid. Interest is never a legal incident to the non-payment of interest. 10 C. 210. : Hal. Tr 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 (with the exception of the fol- lowing sections of the revised Penal Code and of the Code of Criminal Procedure) would exclude other matter more essential to. accomplish the ends contemplated by this publication. So humane, judicious and well conducted have been our peniten- tiaries, 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 foreign 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, how- ever, was not thus to be put aside. He threatened to commit a breach of the peace, and refusing to give bail, was committed 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 labor, 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 understood that on his liberation he returned to Great Britain. Act 31 Marce 1860. Purd. 247. Sor. 181. Where any person hath been, or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured, or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misde- meanor whereof such person was so convicted: Provided, That nothing herein con- tained, nor the enduring of such punishment, shall prevent or mitigate any punish- ment which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony or misdemeanor; and that the provisions of this 446 JAIL, . section shall not extend to the case of a party convicted of wilful and corrupt erjury. Bro 182. If any person who has been convicted of any offence, other than murder of the second degree, for which the punishment prescribed by this code is imprison- ment by separate or solitary confinement at labor, shall, after such conviction, be guilty of a similar offence, or of any offence for which such punishment is directed, he shall in either case, upon conviction, be sentenced to-undergo an imprisonment, and be kept at labor not exceeding double the whole period of time which may, by the penal laws of this commonwealth, be prescribed for the crime of which he is convicted. Aot 31 Marca 1860. Purd. 264. Scr. 74. Whenever any person shall be sentenced to imprisonment at labor by separate or solitary confinement, for any period not less than one year, the imprison- ment and labor shall be had and performed in the state penitentiary for the proper district: Provided, That nothing in this section contained shall prevent such person from being sentenced to imprisonment and labor, by separate or solitary confinement, in the county prisons now or hereafter authorized by law to receive convicts of a like description: And provided also, That 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 of November and the fifteenth of February of any year. Szcr. 75. No person shall be sentenced to imprisonment at labor, by separate or solitary confinement, for a period of time less than one year, except in the counties where, in the opinion of the court pronouncing the sentence, suitable prisons have been erected for such confinement and labor; and all persons sentenced to simple imprisonment for any period of time, shall be confined in the county jail where the conviction shall take: place: Provided, That in the counties where suitable pri- sons for separate or solitary confinement at labor do not exist, and the sentence shall be for less than one year, simple imprisonment shall be substituted in all cases for the separate and solitary confinement at labor required by the “ Act to consolidate, revise and amend the penal laws of this commonwealth.” A jailer is punishable for barbarously misusing his prisoners. Hawk. P. C. 98. So overseers of the poor, for misusing paupers, as by lodging them in unwholesome apartments (Wetherill’s Case, Cald. 432), or by exacting labor from such as are unfit to work. Ibid. 76. A person arrested upon a warrant issued by a justice of the peace of another county, and indorsed in the county where he is found, if the offence be bailable, may, at his option, give bail in the county where he is arrested for his appearance at the court where the offence is triable ; but if he fail to do so, he cannot Plaintiff appears and makes complaint, on oath, that he demised the premises C. D.) situate 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 reviously. Same day, summons issued, returnable the 14th instant, at 4 P. u. . §., constable, returned on oath, served on defendant, by exhibiting to him the original summons, and informing him of the contents thereof. May 14th 1860, 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 plaintiff. Same day, writ of possession issued. S. S., constable, returned: Possession given to plaintiff. Larceny and Receiving Stolen Goods. I. Provisions of the Penal Code. II. Judicial decisions and authorities. I. Aor 81 Marca 1860. Purd. 235. Scr. 103. If any person shall be guilty of larceny, he shall, on conviction, be deemed guilty of felony, and be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. : Szor. 104. If any person shall steal any bank bill, note, draft or check, of, or on any bank, or any bill of exchange, order, warrant, draft, bill or promissory note, for the payment of money, or any certificate or security whatsoever, entitling or evi- dencing the title of any person or body corporate, to any share, portion or interest in any public debt or security, or fund, either of this commonwealth or of the United States, or of any of the states thereof, or of any foreign state, or to any interest in any stock, fund or debt of any body corporate, company or society, or to any deposit in any saving bank or company, being the property of another person, or any corporation, association or society, notwithstanding the said enumerated par- ticulars are, or may be deemed in law, choses in action, such person shall be deemed guilty of larceny, and punished as is provided in the preceding section. And. any person who shall steal any letters patent, charter, testament, will or deed, LARCENY AND RECEIVING STOLEN GOODS. 505 “whether indented or poll, covenant, assurance, lease, indenture, contract, letter of attorney, or other power or instrument of writing, respecting any property, real or personal, or any release, acquittance, voucher, receipt, receipt book, letter book, waste book, day book, journal, ledger or other book of accounts belonging to another, every person so offending shall, on conviction, be adjudged guilty of larceny, and be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an im- prisonment, by separate or solitary confinement, not exceeding’ two years, or either, or both, at the discretion of the court. Sor. 105. If any person shall be guilty of horse-stealing, or as accessory thereto before the fact, or of having received or bought any horse, knowing the same to have been stolen, the person so offending shall be guilty of felony, and shall, on convic- tion, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. Sxcor. 106. If any person shall steal or rip, cut or break, with intent to steal, any glass or wood work belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metal or other material, respectively fixed in or to any building whatsoever, or anything made of metal fixed in any land, being private property, or for a fence to any dwell- ing-house, garden or area, or in any square, street or other place dedicated to public use or ornament, every such offender shall’ be deemed guilty of larceny, and, being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. Sect. 107. If any-clerk, servant or other person in the employ of another, shall, by virtue of such employment, receive and take into his possession any chattel, money or valuable security, which is or may be made the subject of larceny, for_ or in the name, or on account of his master or employer, and shall fraudulently embezzle the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money or security was not received into the possession of such master or employer, otherwise than by the actual possession of his clerk, servant or other person in his employ, and shall be punished as is provided in cases of larceny of like property. Sxcr. 108. If any person, being a bailee of any property, shall fraudulently take or convert the same to his own use, or to the use of any other person, except the owner thereof, although he shall not break bulk or otherwise determine the bail- ment, he shall be guilty of larceny, and punished as is provided in cases of larceny of like property. Secr. 109. If any person shall buy or receive any goods, chattels, moneys or securities, or any other matter or thing, the stealing of which is made larceny by any law of this commonwealth, knowing the same to be stolen or feloniously taken, such person shall be guilty of felony, and, on conviction, suffer the like pains and penalties which are by law imposed upon the person who shall have actually stolen or feloniously carried away the same. _ Secr. 110. It may and shall be lawful to prosecute and punish all buyers and receivers, as well before as after the principal felon shall be taken and convicted, and whether he be amenable to justice or otherwise; which prosecution, conviction and sentence of said receivers shall exempt them from being prosecuted as acces- sories after the fact, in case the principal felon shall be afterwards convicted. Szcr. 179. On all convictions for robbery, burglary or larceny of any goods, chattels or other property, made the subject of larceny by the laws of this common- wealth, or for otherwise unlawfully and fraudulently taking or obtaining the same, or of receiving such goods, chattels or other property, knowing the same to be stolen, the defendant shall, in addition to the punishment heretofore prescribed for such offences, be adjudged to restore to the owner the property taken, or to pay the value of the same, or so much thereof as may not be restored. And on all convic- tions on any indictment for forgery, for uttering, publishing or passing any forged or counterfeit coin, bank notes, check or writing, or any indictment for fraudulently, by means of false tokens or pretences, or otherwise, cheating and defrauding another of his goods, chattels or other property, the defendant, in addition to the punish- 506 LARCENY AND RECEIVING STOLEN GOODS. ment hereinbefore prescribed for such offences, shall be adjudged to make similar restitution, or other compensation, as in case of larceny, to the person defrauded: Provided, That nothing herein shall be so construed as to prevent the party aggrieved, and to whom restitution is to be awarded, from being a competent wit- ness on the trial of the offender. II. Larceny is “the felonious taking and carrying away of the personal goods of another.” 4 BI. Com. 229. The taking and carrying away are felonious, where the goods are taken against the will of the owner, either in his absence or in a clan- destine manner, or where possession is obtained either by force or surprise, or by any trick, device or fraudulent expedient, the owner not voluntarily parting with his entire interest in the goods, and when the taker intends in any such case fraud- ulently to deprive the owner of his entire interest in the property against his will. ° The least removing of the thing taken from the place where it was before, though it be not quite carried off, is a sufficient taking and carrying away to constitute lar- ceny, and upon this ground a guest who had taken the sheets from his bed, with an intent to steal them, and carried them into the hall, where he was apprehended, was adjudged guilty of larceny. Hale P. C.c. 1, b. 35, § 25. 3 Inst. 108. 2 Hast P. C. 355. 1 Leach'323. So, where a person takes a horse in a close with intent to steal him, and is apprehended before he can get him out of the close. 3 Inst. 109. The prisoner got into a wagon, and taking a parcel of goods which lay in the forepart, had removed it to near the tail of the wagon, when he was apprehended. The twelve judges were of opinion, unanimously, that as the prisoner had removed the property from the spot where it was originally placed, with an intent to steal, it was a sufficient taking and carrying away to constitute the offence. 1 Leach 236. 2 Kast P. 0. 356. According to the common law, personal goods only were the subjects of larceny ; nothing, therefore, which was annexed or adhering to the land could be made the subject thereof. Thus, if a person cut down trees, pluck fruit, pull down the stones or bricks of a building or the fixtures of a house, and instantly carry them away, he cannot be convicted of stealing, because the property is part and parcel of the freehold ; but if once severed and allowed to lie on the ground for some period of time before being carried away, they then become personal goods, and the subse- quent wrongfully carrying them away was larceny. So strict is the law relating to land, or realty (as it it called in the law), that it was held that larceny could not be committed of the title-deeds to the land, or the box in which they were contained. So, written documents, such as bonds, bills of exchange, promissory notes, &., were not, as such, the subjects of larceny, on the supposed ground that, as they are mere evidences of debt, they were of no intrinsic value. In our large cities, thefts of the fixtures of dwelling-houses are a great evil. Such houses, when vacant, are entered by depredators, who not only injure the owner by taking away his gas or water fixtures, but subject him to loss and injury, consequent upon the flowing of the gas or water. This defect in the common law has been remedied by the 106th section of the Penal Code. Report on the Penal Code 28. By the common law, it is not larceny in a servant or other employee to convert to his own use property received by him for the use of his master or employer, which has never otherwise been in the possession of such master or employer, and where such servant or employee has done no act to determine his original lawful and exclusive possession, as by depositing the goods in the master’s house or the like. Waite’s Case, 1 Leach 33; Bull’s Case, 2 Leach 980; Bazeley’s Case, 2 Leach 973, exemplify the operations of this doctrine. In the first, a cashier of the Bank of England had received in deposit certain East India bonds, which he did not carry to the usual place of deposit, but put them in his own desk, from whence he afterwards took and sold them; this was held not to be larceny, because the bank had never actual possession of the bonds, but the possession remained always in the prisoner. The second was a case in which a confectioner, suspecting a person in his employ of purloining money received at the counter, sent an indivi- dual, who made a purchase from the servant, and paid him with a marked piece of silver; the master immediately afterwards examined the till, and not finding the marked piece, caused the servant to be searched, and found it on his person; the LARCENY AND RECEIVING STOLEN GOODS. 507 servant was acquitted of larceny, on the ground that the money never had been in the possession of the master, as against the prisoner. The third case was that of a banker’s clerk receiving a deposit in bank notes from a customer, part of which, instead of placing in the drawer, he kept, and appropriated to his own use; this, after much discussion, was ultimately held by nine of the twelve judges not to be felony, inasmuch as the note kept back never had been in the possession of the banker, distinct from the possession of the: prisoner; but that it would have been other- wise, if the prisoner had deposited it in the drawer and had taken it afterwards. In neither of these cases did there exist any moral difference between the crimes of which the prisoners were actually guilty, and technical larcenies; a nice and highly artificial distinction between what was, and what was not, a sufficient posses- gion in the master of the property purloined, enabled the offenders to escape with impunity. It is to obviate such results, which are really discreditable to criminal justice, and to protect masters and employers from the want of fidelity of those in whom they are compelled, from the exigencies of business, to confide, that the 107th section of the Code was passed. Report on the Penal Code 29. ‘ By the common law, if a carrier was intrusted with the transportation of a package of goods or other property, and appropriated the whole to his own use, he was not criminally liable; but if he opened the package, and withdrew a portion of its con- tents, he was guilty of larceny. This distinction proceeded upon the ground, that the act of breaking the package was an act of trespass in the carrier, by which the privity of contract was determined; whereas, if there were no breaking of the pack- age, no severance of part of the commodity from the rest by the carrier, but the whole were parted with by him in the state in which it was delivered into his hands, there was nothing which would amount to a trespass while the package remained in his possession. This has been remedied by the 108th section of the Code. Re- port on the Penal Code 30. Tf one find goods in the highway, and convert the same to his own use, not know- ing the owner, he is not guilty of larceny; aliter, if he know the owner, or have the means of identifying him instanter, by marks which he understands. 5 Gilm. 305. 13 Jur. 499. 3 Chit. C. L. 926. Whart. C. L. § 1794-5. P At common law, larceny cannot, be committed of a dog. 88. &R. 571. So, bees are fere nature, and although confined in the top of a tree by the owner of the tree, yet while they remain in the tree, and are not secured in a hive, they are not the subject of a felony. 3 B. 546. ‘Where A. and B., brought stolen goods to OC. 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 on the part of C. proved, as would warrant his conviction. 1 Eng. L. & Eq. 567. In Pennsylvania, it is the settled practice, on the trial of an indictment for re- ceiving stolen goods, knowing them to have been stolen, in order to prove the guilty knowledge, to admit evidence, that the prisoner had in his possession at the same time, other stolen goods belonging to a different owner. This practice, however, appears to be opposed both to reason and authority. The mere possession of stolen goods is not evidence that the prisoner received them with a guilty knowledge; the only presumption which the law draws from such a fact is, unless explained, that they were stolen by the prisoner. How then, can proof from which it might be presumed that the defendant had stolen certain other goods, be evidence of a guilty knowledge in the receiving of those described in the indictment? In Regina v. Oddy, 4 Eng. L. & Eq. 572, such evidence was held to be inadmissible; and Lord Chief Justice CAMPBELL said—“ the law of England does not allow one crime to be proved in order to raise a probability that another has been committed by the per- petrator of the first. The evidence which was received in the case does not tend to show that the prisoner knew that these particular goods were stolen at the time he received them. The rule which has prevailed in the case of indictments for uttering forged bank notes, of allowing evidence to be given of the uttering of other forged notes to different persons, has gone to great lengths, and I should be unwilling to see that rule applied generally in the administration.of the criminal law. We are all of opinion that the evidence admitted in this case, with regard to the scienter, was improperly admitted, as it afforded no ground for any legitimate inference in 508 respect of it.” 5 Cox © Quarter Sessions of Phi LAW FORMS. . C. 210, 215. These views were urged upon the court of ladelphia in 1853, in the case of Commonwealth v. Keller, and the learned president judge whilst announcing his determination to adhere to the established pr thority. But see actice, admitted that it had the support neither of reason nor au- 16 Pet. 860. 4 Bos. & Pull. 92. 7 Bingh. 543. 2 H. Bl. 288. Whart. C. L. § 1803 note, Ibid. § 631-5. 1 Bald. 514, 519. a Law forms, Ke. OR A SYSTEM OF POPULAR CONVEYANCING; EMBBACING ARTICLES OF AGREEMENT. ARTICLES OF COPARTNERSHIP, DEEDS AND LEASES. DOWER, AND RELEASE OF. WILLS. POWERS OF ATTORNEY. PETITIONS FOR BOADS, BRIDGES, ETO. PROCEEDINGS, REPORT OF VIEWERS. PROMISSORY NOTES. ACKNOWLEDGMENTS AND PROOFS OF DEEDS. BONDS AND MORTGAGES. BILLS OF SALE. DIVOROH, PETITIONS FOR. DUE-BILLS, RECEIPTS, ETO., And such other Forms as are most frequently required ; selected from the best authorities, and of the ao AhoOnde 10 il. most approved kind. . Definition of an affidavit. . Affidavit to an account. . Shorter form of do. . General form of articles of agreement. . Agreement for the purchase of a rever- sion after a lease of years. . Covenants which may be inserted. Not to commit waste, or grant new leases. If counsel do not approve title, &. Not to be responsible for the arrears of former tenants. . Agreement for making a quantity of shoes. . Agreement to bear equal charges in a lawsuit to be brought for the recovery of an estate. . Agreement between several to pay their proportion of expenses of defending a lawsuit expected to be brought against them for the recovery of lands. General form of'articles of copartnership. Additional articles which may be in- serted, or rejected, as parties may agree. Not to trust any one ‘whom the copart- ner shall forbid. Not to release any debt without consent. Not to be bound, or indorse 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. . Agreement to continue copartnership by indorsement. . Dissolution of partnership. . Notices of dissolution. . Certificate of limited partnership. . Notice of limited partnership. . General form of assignment. . Assignment. . A general form of assignment by indorse- ment on the back of any instrument, 20. 21. whether agreement, ‘bond, bill of sale, &c. Assignment of moneys due upon accounts. 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. . Bill of sale of chattels. . Common form of bill of sale. . Definition of a bond. . Common form of bond and warrant. . Bond to indemnify one who indorsed a promissory note for another. . Bond to save harmless from paying rent, where the title is in question. Condition of » bond for paying an an- nuity during life. . Refunding bond. . To indemnify against a bastard child.. - Bonds, how to be assigned. . Assignment of bond by indorsement. . Short form of the same. . Short form of assignment of u bond, where the assignor is liable. . Do. where the assignor is not liable. . Definition of deeds. - Common form of a deed. . Ground-rent deed. . Grant of right of way. . Grantee covenants to keep the way in repair. . Dower. . Release of dower. . Divorce. . Petitions for divorce from the bonds of matrimony. ss for desertion. ee for intolerable treatment. fe for adultery. “ for divorce from bed and board, and for alimony. “ for desertion. LAW FORMS. Petition for divorce from bed and board, 67. Form of a mortgage. 68. Assignment of a mortgage. 509 . Form of manumission of a slave. for intolerable treatment. 70. Another form of do. 7 for adultery. 71. Roads. 45. Definition of a lease. 72. Petition for a public road. 46. Common form of lease. 78. Order of court on do. 47. Lease made by tenants in common. 74. Return of jury. 48 Lessor covenants to sell the inheritance 75. Petition for damages. to the lessee on request. 76. Order of court thereon. 49. Special form, with authority in certain 77. Petition for private roads. cases to enter judgment in ejectment. 78. Petition for gates ona private road. 50. Assignment of a lease. 79. Petition for vacating a road. 51. Short form of — do. 80. Report of viewers. 62. Letters of attorney. 81. Order of court. 53. General form of letter of attorney. s 82. Petition for annulling proceedings had 64. General letter of substitution. before the road is opened. 55. To receive money on a bond. 88. Report of viewers. ‘66. To receive dividends on stock. 84. Petition to vacate w state road supplied 57. To convey lands. by a turnpike. 58. To acknowledge a deed. 85. Petition for a review. 59. To acknowledge satisfaction on » mort- 86. Petition for a road on county line. gage. 87. Report thereon. 60. To lease lands for terms not exceeding 88. Petition for a county bridge. twenty years. 89. Report thereon. 61. Revocation of a letter of attorney. 90. Petition for bridge on county line. 62. Powers of attorney to attorneys at law. 91. Due-bill. Power of attorney by defendant. 92. Promissory notes, various forms. ss ss by plaintiff to institute 93. Receipts of different kinds. suit. 94, Last will and testament, definition of, es ne by plaintiff to conduct » and who may make. : suitalreadybrought. 95. Forms of wills and testaments. 63. Petition for tavern license. 96. Preambles to wills. 64. Lien. ‘97. Will, &c., appointing guardians for 65. Form of mechanics’ lien. children. 66. Mortgage, definition of. 98. Will ordering estates to be appraised and divided. 1. AN AFFIDAVIT Is an oath in writing, sworn pefore 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 B]. Com. 304.. 2. AFFIDAVIT TO AN ACCOUNT. CITY OF PHILADELPHIA, ss. A. B. personally appears before the subscriber, one of the aldermen of the said city, 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 ald and delivered to E. F., which sale and delivery was made by this deponent; 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 account is in all particulars just and correct, and the credits given to the said K. 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., $412.25, is justly due from the said E. F. to the said C. D. " (Signed, ) A.B. Sworn and subscribed July 4th 1860, before G. H., Alderman. 3. A SHORTER FORM. CITY OF PHILADELPHIA, ss. : A. B. being duly sworn [or affirmed] doth depose 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. worn and subscribed July 5th 1860, before C. G., Alderman. ; 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 Philadelphia, machinist, of the one 510 : LAW FORMS. part, and C.D., of the county of Montgomery, 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. 1860, at the proper cost and charges of the said A. B. [or 0. D.] by good and lawful copveyance 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, é&c., (here describe the property.) In consideration whereof the said C.«D., for himself, his heirs, executors and administrators, doth hereby covenant and agree, to and with the said A. B., his heirs and assigns that he the said O! D, will, on the execution and delivery of the conveyance 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. [omens if desired.] “To the true and faithful performance of the several covenants and agreements aforesaid, the parties aforesaid do hereby respectively bind themselves, their héirs, 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 hereunto set their hands and seals. A.B. [seat Signed, sealed and delivered in the presence of us, C.D. [sean G. H. and I. J. 5. AGREEMENT FOR THE PURCHASE OF A REVERSION AFTER A LEASE FOR YEARS. Aut that, &e. situated, &¢. —— now in the tenure or occupation of E. F., which he holds by lease from the said A. B. (determinable on the ay 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 demand 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, “Tar 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 grant 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.” If counsel do not approve title, &e. “ Awp 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 responsible for thé arrears of former tenant. “ Anp 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 pay- able, 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, Arrrotss, &c. between A. B., of, &e., of the one part, and C. D., &e., of the other 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 18, and deliver the same to the said QO. D., at ——, within months from the date hereof. And the said C. D. in considera- tion thereof doth covenant to pay to the said A. B. at the rate of —— per pair, after months from the delivery of the said shoes as aforesaid. And it 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 deliver 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. ] LAW FORMS. 511 8, AN AGREEMENT TO BEAR EQUAL CHARGES IN A LAWSUIT TO BE BROUGHT FOR THE RECOVERY OF AN ESTATE. Anrictzs, &c. between, &c. Whereas, [recite the grounds of the contemplated action or actions] by reason whereof a suit or suits is, or are, to be commenced. And whereas,” 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., C D., &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, ke. a 9, AN AGREEMENT BETWEEN SEVERAL TO PAY THEIR PROPORTION OF THE EXPENSES OF DEFEND- ING 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. 0. are possessed 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 @ 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 HE. 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 sixty-one, between A. B. of R——,, in the county of Beaver and state of Pennsylvania, of the one part, and C. D., of the township 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 commodities belonging to 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 cove- nant, promise and agree, each with the other of them, his respective executors and admin- istrators, 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 trade 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 endeavors, to the utmost of their skill and ability, for their mutual advantage, with the stock, as afore- said, and the increase 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 business, shall be equally and proportionably divided between them, share and share alike. And also that 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 further, 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 expended, in and about the said business, as also all commodities, and merchandises by them bought and sold by reason and on account of the said copartnership, and all other matters and things 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 executors and administrators of each other, a true and perfect account of all profits and increase by them made, and of 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 512 : LAW FORMS. _ will clear, adjust, pay and deliver, each unto the other, at the time of making such account, their ae 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 presents, (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 party to the executors 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, share and 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. heey Sealed and delivered in C.D. [szau. the presence of 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 shall forbid. Anp that neither of the said parties shall sell on credit any goods, wares or merchan- dise, 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. Anp that neither of the said parties shall,.without the consent of the other, release or compound any debt or demand, due or coming to them, on account of their said copart- nership, except for so much as shall be actually received and brought into the stock or cash account of the said partnership. Not to be bound or indorse bills. Anp that neither of the said parties shall, during this copartnership, without the con- sent 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 indorse 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. Anp 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. Tuar 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; and neither of them shall take any further sum for his own separate use, without the consent of the other, in writing. dnd 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, de. Tuar 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 all demands ordered by the said parties; and shall, from time to time, pay the surplus cash to such banker as the said partners shall nominate, That the voice of the majority of the partners shall bind the whole. Tuat in all matters respecting the general transactions of the partnership, and the management of the business, the wish and opinion of any three (the number making a majority) of the partners shall govern and he binding on the other partners. 12, AN AGREEMENT TO CONTINUE A PARTNERSHIP BY INDORSEMENT, We, the within-named A. B. and ©. D., do by these presents indorse, declare, and mutually covenant and agree, unto and with each other, his and their executors and administrators, 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 LAW FORMS. 518 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. Wuereas, by agreement made the first day of January, a. p. 1856, A. B. and C. D. did enter into copartnership, for the purpose of carrying on the trade and business of merchandising for the term of ten years. AND 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 dissolution, to which proposition the said A, B. hath assented. The parties, therefore, mutually 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 ‘merchandise 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 1858. Sealed and delivered in A.B, [seau. the presence of C.D. [seau. E. F. G. H. 14. Noricz or piIssoLuTIon. 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 be neglected, one partner may be held liable for the acts of another, by those who have not had notice of a dissolution. 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 the 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. A. B. eC. D.], Where one of the partners only leaves the firm, &e. : 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 business will be continued: by the said A. B. and C. D., under the firm of B. & D. [The last words may be varied according to circumstances. | 15. CERTIFICATE OF LIMITED PARTNERSHIP. Limited Partnerships, for certain kinds of business, are allowed and regulated by an act of assembly passed 21st March 1836. Purd. 658. Turs is to certify, to all to whom these presents shall come, that we whose names are hereto subscribed, to wit, A. B., of ——, merchant, C. D., of ——, engineer,.&c., have entered into a limited partnership, for the business of mining and transporting of mineral coal within the state of Pennsylvania, under and by virtue of an act of the general assembly of the said commonwealth, passed the 21st March 1836, entitled ‘“ Am act rela- tive to limited partnerships,” and all and singular the supplements thereto, upon the terms, conditions and liabilities hereinafter set forth, to wit: 1.. The said partnership is to be conducted under the name or firm of A. B.. 2. The general nature of the business intended to be transacted by the said firm or partnership, is the mining of mineral coal and transporting the same, &c.,. (describing the character of the projected business.) 8. The general partners in the said firm are A. B., residing in , E..F., residing in ——, &e., and the special partners are C. D., residing in ——, G. Hi,,residing in. C. 33 514 LAW FORMS, 4, Each of the special partners has contributed to the common stock of said firm the amount of $——. G. H. has so contributed, &c. . 5. The said partnership is to commence immediately at and after the making and signing of this certificate, and is to terminate on the —— day of , Anno Domini COUNTY OF —, ss. Before me the subscriber, one of the justices of the peace in and for the said county, personally came and appeared, on this day of ——, Anno Domini 18—, the above- named A. B., 0. D., &., who severally, in due form of law, acknowledged the foregoing certificate as and for their and each of their act and deed, to the end that the same might as such be recorded. Witness my hand and seal, this day of ——, in the year of our Lord, &e. X. Y. Z., Justice of the Peace. ([szat.] COUNTY OF , $8. Before me the subscriber, one of the justices of the peace in and for the said county, personally came and appeared, on this day of , A. D. 18—, A. B. aforenamed, one of the general partners in the firm of , &e., referred to in the preceding certifi- cate, and being duly sworn, he did depose and say that the several sums specified in the said certificate to have been contributed by each of Ue special partners therein named to the common stock, to wit, the said C. D. the sum o dollars, &c., have been so con- tributed and actually and in good faith paid in cash. A. J.8., Justice of the Peace. [sxx] 16. Norice oF LIMITED PARTNERSHIP. Ws, the subscribers, have this day entered into a limited percerehip. agreeably to the provisions of the act of assembly of the commonwealth of Pennsylvania, passed the twenty-first day of March 1836, entitled ‘An act relative to limited partnerships,” and do hereby certify that the name of the firm under which said partnership is to be con- ducted is A. B., that the general nature of the business to be transacted is the mining of mineral coal, and transporting the same, &c. (describing the character of the projected. business), and the same will be transacted within the state of Pennsylvania; that the names of the general partners of said firm are A. B., residing in , and E. F., residing in ; and the special partners are C. D., residing in , and G. H., residing in ; that the capital contributed by each of the special partners, is dollars, in eash ; that the period at which the said partnership 1s to commence is the —— day of , one thousand eight hundred and , and that it will terminate on the —— day of ——, one thousand eight hundred and 4 : z y General Partners. = 7 Special Partners. CITY OF PHILADELPHIA, ss. Before me, the subscriber, one of the aldermen in and for the said city, personally came and appeared, on this —.— day of , one thousand eight hundred and , J.B, printer of the “‘ Public Ledger,” and being duly sworn foe affirmed], he did depose and say that the preceding advertisement of the terms of the limited partnership between the ersons therein named, had been published in the “‘ Public Ledger,” a newspaper pub- ished in said city, for the term of six weeks, next and immediately after the day of the registry of the certificate. ‘ J. B. Subscribed and sworn before me, the day and year aforesaid. J.T., Alderman. [seat] 17. AsstanmMEnt. An assignment is the transferring and setting over to another of some right, title or interest. 2 Bl. Com. 480. An assignment in trust for the benefit of creditors must be recorded within thirty days after date ; it must contain no reservation for the benefit of the debtor, nor an preference-in favor of a particular creditor or set of creditors. 6 B. 338. 8 P. BR. 91,92. 3 W. 198. 2 Wh. 240. 3 Ibid. 847. 4 Ibid. 399. 18, A GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS. THIs INDENTURE, made the [tenth ey of [March,] Anno Domini one thousand eight hundred and [sixty,] between [A. B., of the county of York, merchant,] of the first part, and [C. D., of the same place, blacksmith,] of the second part. Whereas, the said (A. B.] % LAW FORMS. 515 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] ia hand well and truly paid by the said [C. D.,] at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, transferred and 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 being 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 assigns, [to and for] thejr 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 [his] discretion, convert all the assigned pripeniy as speedily as may be, into cash, and as the proceeds are, from time to time, realized, (after paying all the expenses of this trust, including the cost of this instru- ment,) pay the creditors of the said [A. # 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 reconvey the same unto the said [A. B.,| his heirs, executors, administrators and assigns, And the more effectually 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 said 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 hereafter become payable. Giving and granting unto his said attorney, by these presents, his full and entire power, strength and autho- rity, 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.] [seat.] . Sealed and delivered in the presence of us, W.G. H. L. [I accept the trust. C. D.] CITY OF PHILADELPHIA, ss. ; This pl day of [March,] a. p. [1860,] 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, [seat.] 19. A GENERAL FORM OF ASSIGNMENT, BY INDORSEMENT, ON THE BACK OF ANY INSTRUMENT, WHETHER AGREEMENT, BOND, BILL OF SALE, &c., &c. Kwyow Aut MEN by these presents, that I, the within-named A. B., in consideration of five dollars to me paid by Q. 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 he inserted where proper,) and I constitute the said C. D. my attorfrey 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. 20. OF MONEYS DUE UPON ACCOUNT. Kwyow atu men by these presents, that I, A. B., of ——, in consideration of the sum of ——, to me in hand paid by 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 as are remaining 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, a 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 C. D., the said sum of —— is justly due and owing, and that I have not received or discharged the same or any part thereof. In witness, &. A 516 LAW FORMS. 21. 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 CO. D., of , of the other part: Whereas, E. F., of, &c., by his promissory note, under his hand, bearing date, &c., did promise to pay to the said A. B., by the name of F. A. B., or order, the sum of, &e., 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 witnésseth, that the said A. B., for and in consideration of the sum of one dollar, 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, &., 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, &e., (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 lawful 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 C. D., 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. (Add a letter of attorney and covenants that he has not released nor will release the note, nor discharge any action. | 22, BILL OF SALE OF CHATTELS. Possession is essential to a Jien upon corporeal chattels. 5 B. 898. 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. 178. & R. 99. An agreement to sell an unfinished chattel, to be delivered at a future time, does not pass a present property. 4 R. 260. 4 W. 121. 5 Ibid. 201. 23. CoMMON FORM OF BILL OF SALE, Know aut MEN by these presents, that I, A. B., of ——, merchant, for and in con- sideration 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 hereb acknowledged, have bargained, sold and delivered, and by these presents do bargain, ral and deliver, unto the said C. D. [here insert the goods sold.] ‘To have and to hold the said [goods] unto the said C. D., his 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. 24. DEFINITION OF A BOND. A bond is a deed or obligatory instrument in writing, whereby one doth bind himself 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 an estate for quiet enjoyment, to stand to an award, save harmless, perform a will, or the like. It con- tains an obligation with a penalty; and a condition which express ly 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. [ 25. CoMMON FORM OF A BOND AND WARRANT. Kyow att mun by these presents, that ah A. B., of the city of Philadelphia, mer- chant, am] held and firmly bound unto [0. D., of the city of Philadelphia aforesaid, rm LAW FORMS. 517 grocer,] in the sum of [—— dollars,] lawful money of the United States of America, to be paid to the said [C. D., al certain attorney, executors, administrators or assigns. To which payment well and truly to be made, [I bind myself, my] heirs, executors and administrators, firmly by these presents. Sealed with (ey seal. Dated the —— da of ——, in the year of our Lord one thousand eight hundred and sixty. : THE CONDITION OF THIS OBLIGATION 1s sucH, That if the above bounden [A. B., his] heirs, executors, administrators or any of them, shall and do well and truly pay, or cause to be paid unto the above-named [C. D., hel certain attorney, executors, administrators or assigns, the just sum of [—— dollars, such as aforesaid, within one year from the date hereof, with lawful interest for the same,] without any fraud or further delay, then the above obligation to be void, or else to be and remain in full force and virtue. Sealed and delivered in [A. B.] [suat.] the presence of E.F. G. H. To [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. Wuenreas, [I, A. B., of the city of Philadelphia, merchant,] in and by a certain obliga- tion bearing even date herewith, do stand bound unto [C. D., of the said city, procer| in the sum of [ dollars] lawful money of the United States of America, conditione 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 you, 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 elsewhere 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 term or time, there or elsewhere to be held, and confess judgment thereupon against [me, my] heirs, executors or administrators, for the sum of. poe dol- lars,] lawful money of the United States of America, debt, besides costs of suit, by non sum - ‘informatus, 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 administrators, remise, release and for ever quit claim unto the sai [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, I have hereunto set my hand and seal the —— day of ——, in the year of our Lord one thousand eight hundred and sixty. [A. Bi [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. 26, A BOND TO INDEMNIFY ONE WHO INDORSED A PROMISSORY NOTE FOR ANOTHER. Know att, &. Whereas, the above-bounden 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 only debt of the said A., hath indorsed the said. recited bill or note, and is thereby become chargeable with and for payment of the said sum of and interest, at the time therein mentioned, as by the said bill and the indorsement thereupon may appear: Now the condition, &c., that if the said A., his executors 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 of payment therein mentioned, and in full discharge thereof, and therefrom, 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. 97. A BOND TO SAVE HARMLESS FROM PAYING RENT WHERE THE TITLE Is IN QUESTION. Tue conpitron, &c.: That whereas there is a suit depending between the above-bounden R. C., and others, touching the right and interest in tha now dwelling-house of the above- pamed J. F., situate, &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 518 LAW FORMS. 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, sam 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. 28, THE CONDITION OF A BOND FOR THE PAYMENT OF AN ANNUITY DURING LIFE. Wuereas, 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 administrators, or any of them, do 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 therefor (that is to say), on the first day of, &c., in each year, by even and equal portions, the first payment thereof to begin and be made on —— next ensuing, the date of the above-written obligation ; then this obligation shall be void and of no effect: but if default shall appear to b2 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. 29, REFUNDING BOND, Know Aut MEN by these presents, that we, A. B., of , legatee under the testament and last will of R. 8., 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 him- self, 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 dollars, [or one equal —— part of his personal estate after the payment of his debts(a)] 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 orphans’ court having jurisdiction, before they are entitled to their distributive shares or legacies. Act of 1834, § 45, 52. Purd. 302-3. 30. To THE COUNTY FOR A BASTARD CHILD. Kxow Aut MEN by these presents, that we, A. B. and F. G., of the township of B——, in the county of Somerset, and state of Pennsylvania, are held and firmly bound unto L.M, and N. O., 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 ther certain attorneys, successors or assigns; to which payment, well and truly to be made, we bind ourselves jointly and severally, our- heirs, executors and administrators, and every of them, firmly by these presents. Sealed with our seals, and dated the day of in the year, &e 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 ately been (a) In this latter case the bond must be given in double the sum which th think himself entitled to. Ssoee LAW FORMS. 519 delivered of a male bastard child, in the township aforesaid,] and hath charged the sadi A. B. with being the father thereof. If therefore the said A. B. shall and do, from time to time, and at all times hereafter, well and sufficiently save, defend, keep harmless, and indemnified, the said L. M. and N. O., 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 concerning the same, then this obligation to be void, or else to be and remain in full ores and virtue. 31. Bonps, 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 28 May 1715. Purd. 112. The assignee take 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 Y¥. 23. 5 Binn. 232. 48. &R.177. 1B. 277. 5 W. 151. The assignee should give notice of the assignment to the obligor. 2 D. 49, 50. A lapse of twenty years creates a presumption of payment, if no interest has been paid in the mean time ; but if the period be shorter than twenty years, the presump- a a be supported by circumstances. 2 W. C. 0. 323. 98. & R. 879. 1 Y. 4, 584. 32. ASSIGNMENT OF A BOND BY INDORSEMENT. Kwow 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 within-written bond or obligation, and the sum of mentioned in the condition thereof, together 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 forever. In witness, &c. A.B. [seat] 33. 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. [seaz.] 34. Ssort roRM WHERE THE ASSIGNOR IS LIABLE. For 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 ane the payment thereof, in case of default being made by the within-named C. D. Witness my hand and seal, &c. 35. WHERE THE ASSIGNOR IS NOT LIABLE. For VALUE RECEIVED, I do assign and set over the within obligation, and all moneys 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 witnesses to either of the foregoing assignments, to authorize the assignee to bring suit in his own name: if the bond be not assigned in the resence of two subscribing witnesses, as prescribed by the act of assembly, suit must be Frougit in the name of the original obligee, for the use of the assignee. ] * 36. DE¥FINITION oF 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. 2 Bl. Com. 295 520 LAW FORMS. It should be recorded within six months. Act 18 March 1775. Purd. 321. 2 B. 497. 4 B. 140. 37. CoMMON FORM OF A DEED. Tus INDENTURE, made the day of ——, in the year of our Lord one thousand eight hundred and , between J. D., of the city of Philadelphia, grocer, and C., his wife, of the one part, and E. F., of the said city, turner, of the other part, witnesseth, 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 the said K. F., at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, enfeoffed, released and confirmed, 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 suid city of Philadelphia, 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 ee or depth feet, bounded on the —— by ground now or late of A. B., on the y 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 bearing date the —— day of , Anno Domini one thousand eight hundred and ——; intended to be recorded, (07, recorded in the office for recording deeds, &c., for the city and county of . Philadelphia, in deed book ——, No, ——, page , &e., as the case may be,) -granted and conveyed to the said J. D., in fee, subject to the payment 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 indenture fully appears; together with all and singular the improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise apper- taining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever of them the said J. - D., and W. his wife, in 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 lot of ground above described, 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 use and behoof of the said E. F., his heirs and assigns, forever ; 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 the he 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 whomso- ever lawfully claiming, or to claim the same by, from or under him, them or any of them, shall and will, subject as aforesaid, Sores one forever 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. 38. GROUND-RENT DEED. _ THIS INDENTURE, made the [sixth] day of [June,] in tho year of our Lord one thousand eight hundred and [sixty,] between [A. B., of the county of Bucks, state of Pennsyl- vania, farmer,] of the one part, and [C. D., of the county of Dauphin, of the same state, tanner,] of the other part, witnesseth, that the said [A. B.] as well for and in considera- tion of the sum of one dollar, lawful money, unto bn at or before the sealing and delivery hereof, by the said [C. 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 agreements hereinafter mentioned, which, on the part of the said fe D.,] his heirs and assigns, is and are to be paid and performed, [have] granted, argained, sold, aliened, entfeoffed, released and confirmed, and by these presents [do grant, bargain, sell, alien, enfeoff, release and confirm, unto the said [C. D.,] all that vertain lot or piece of ground [Here describe correctly the property.] Together with all and singular the {im provements, } ways, streets, alleys, passages, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever unto the said hereby granted ae belonging, or in anywise appertaining, and the reversions and remainders thereof: to have and to hold the said described lot or piece of ground, tereditaments and premises, hereby granted, with the appurtenances, unto the said C.D.,] his heirs and assigns, to the only proper use and behoof of the said |C. D., is heirs and assigns, forever: yielding and paying therefor and thereout, unto the waid [A. B.,] his heirs and assigns, the yearly rent or sum of [twenty dollars, LAW FORMS. 521 lawful silver money of the United States of America, each dollar weighing seventeen ennyweights and six grains at least, in [half] yearly payments, on the Lora day of January and July,] in every year hereafter, forever, without any deduction, defalcation or abatement for any taxes, charges or assessments 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 is anuary,] one thou- sand eight hundred and [sixty.] 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 [erected -or] to be erected, and to distrain fur the said yearly rent so in arrear and unpaid, and to proceed with and sell such distrained goods and effects, according to the dul stirs of distresses for rent-charges. But if suf- ficient 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, ‘nto 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 his and their first and former estate, and title in the same, and as though this indenture had never been made. And the said [C. D.,] for himself, 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 pay- ment thereof, without any deduction, defaleation 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, shall pay all taxes whatsoever, that shall hereafter bé laid, levied or assessed, by virtue of any laws whatever, as well on the said hereby granted lot and buildings thereon [erected or] to be erected, as on the said yearly rent now charged thereon. Also, that the said [C. D.J his heirs or assigns, shall and will, within [two years] from the date hereof, erect and build on the said hereby granted lot, [a good three-story brick oe sufficient value to secure the said yearly rent hereby reserved. [And further the said [C. D.] doth hereby for himself, his heirs, executors, administrators and assigns, expressly waive, relinquish and dispense unto the said [A. B.,] his heirs, executors, admi- nistrators and assigns, all and every provisions and provision in the act of assembly of the commonwealth of Pennsylvania, passed on the ninth day of April, a. p. 1849, entitled “an act to exempt property to the value of three hundred dollars from levy and sale on execu- tion and distress for rent,” so far as the same may exempt the said hereby granted lot, and any part thereof, from levy and sale, by virtue of any writ of execution that may be issued upon any judgment that may be obtained or entered in any action for the recovery of the rent hereby reserved, or hereby covenanted to be paid, and of any arrears thereof, and of the costs of such action and execution ; so that it shall be lawful for the said [A. B.,] his heirs, executors, administrators or assigns, to proceed by execution, to levy upon _ and sell the said hereby granted lot of ground, and every part thereof, with the build~ ings and improvements as aforesaid, in the same manner and to the same extent, and to the same effect, to all intents and purposes, as if the said act of assembly had not been passed.] Provided always, nevertheless, that if the said bh D.,] his heirs or assigns, shall and do at any time, 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 forever 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 4 sufficient release and discharge of the said yearly rent, hereby reserved to the said [A. B.,] his heirs and assigns, forever, anything hereinbefore contained to the contrary thereof notwithstanding. And the said [A. B.,] for himself, his heirs, executors and administrators, doth covenant, romise and agree, to and with the said [C. D.,] his heirs and assigns, by these presents, that e, the said [C. D.,] his heirs and assigns, paying the said yearly rent, or extinguishing the same, and taxes, and performing the covenants and agreements aforesaid, shall and may, at all times hereafter forever, freely, peaceably and quietly, have, hold and enjoy, all and singular the premises hereby granted, with the appurtenances, and receive and take the rents and profits thereof, without any molestation, interruption or eviction, of [him,] the said [A. B.,] or 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 {his, their or any of their act, means, consent or procurement. In witness whereof, the said parties have interchangeably set their hands and seals hereunto. Dated the day and year first above written. A.B. [sss Sealed and delivered in} ; C.D. [szat. the presence of us, E. F., G. H. , 522 LAW FORMS. 39. GRANT OF A RIGHT OF WAY. TuIs INDENTURE, made, &c., between A. B., of, &c., [the grantor,] of the one part, and C. D., of, &e., [the grantee,] of the other part, witnesseth, that in consideration of $ paid to the said A. B. by the said C. 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 OC. 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 forever hereafter, at his and their respective will and pleasure, by night and by day, and for all purposes, to go, return, pass and repass, with horses, carts, wagons and other carriages, laden or unladen, and also to drive cattle and other beasts on, through, along and over a certain road or way, lately formed and fenced off by the said A. B., out of, and from and inter- secting certain closes or fields, called, &c. , in M , in the county of , belong- ing to him, the said A. B., and which said road or way is the width of fourteen feet or thereabouts, and leads from the turnpike-road or public highway, opposite or adjacent to the said messuage and farm of the said C. D., called, &., 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 described in a map or plan indorsed on these pre- sents; and that it shall be lawful for the said C. D., his heirs and assigns, to make and lay causeways, or otherwise to repair and amend the same as there shall be occasion. 40. GRANTEE COVENANTS TO KEEP THE WAY IN REPAIR, &C. Anp the said C. 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 man- ner, the said road or way, the right of passing in-and over which is hereby granted, and also the gate erected by the said A. B. across the said road, at the northern end or extre- mity thereof, and the lock 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, repair and renew the quickset hedge and fence lately planted by the said A. B. on both sides of the said road or way; 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, &., 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 through the said gate, shut and lock the same. In witness, &c. 41. 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 seised at any time during the coverture, to hold to herself for the term of her natural life. 2 Bl. Com. 129. Widow's share of the intestate’s estate is in lieu of dower. Act 8 April 1833, § 16. Purd. 362. 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 8 April 1833, § 11. Purd. 362. But she may elect to take her dower in his real estate, and her share of his personalty under the intestate laws. Purd. 862. Widow is compelled to accept such devise or bequest in lieu of dower, or to waive such devise or bequest and take her dower. Act 29 March 1882, § 85. Purd. 862. 42, RELEASE OF DOWER. To all to whom these presents shall come, A., of, &., relict of B., late, &c., sends, greet- ing: Know ye, that the 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, for- ever; 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, re- mised, released and forever quit-claimed, and by these presents doth fully-and absolutely grant, remise, release and forever quit-claim, unto the said A. B., his heirs and assigns, forever, all the dower and thirds, right and title of dower and thirds, and all other right, LAW FORMS. ’ 523 title, interest, claim and demand whatsoever, in law and equity, of her, the said A., of, in, and to, [® 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 administrators, nor any other person or persons for her, them or any of them, shall have, claim, challenge or de- mand, or pretend to have, claim, challenge or demand, any dower or thirds, or any other right, title, glaim or demand, of, in or to the said premises, but thereof and therefrom shall be utterly debarred and excluded forever by these presents. Bismed, A. [seat.] In witness, &e. D. E. G. H. 43. Divorce. Divorces are of two kinds, one toval, the other partial; the one a vinculs matri- monii [from the bond of matrimony]; the other a mensa et thoro [from bed and board]. 1 Bl. Com. 440. Purd. 345. The causes of divorce from the bond of matrimony, are,—1l. 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, without a reasonable cause, for and during the space of two years: 5. Cruel and barbarous treatment, endangering the wife’s life: 6. Indignities offered to her per- son, so as to render her condition intolerable, and life burdensome, and thereby force her to withdraw from her house and family:(a) 7. Where the marriage was procured by fraud, force or coercion, and has not been subsequently confirmed by the injured party: 8. Where either of the parties has been convicted of felony, and sentenced to an imprisonment for a term exceeding two years: 9. Cruel and bar- barous treatment by the wife, rendering the husband’s condition intolerable and life burdensome: 10. Personal abuse, or such conduct on the part of either husband and wife, as to render the condition of the other party intolerable and life burdensome. The acts of 1817 and 1862 (Purd. 849, 1273), also allow agdivorce from bed and board, for the 3d, 5th and 6th causes, and allow the wife such alimony as her husband’s circumstances will admit of. 1 W. 268. 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. 1 Bl. Com. 441. Marriages within the prohibited degrees are void, and the courts are authorized to decree such marriages to be null and void, in the same mode, and after the same proceedings as for a divorce. Purd. 346-7. 44, Pzrrrion OR LIBEL FOR DIVORCE, ON THE GROUND OF DESERTION, To the Honorable, &c. Tue libel of A. B., or A. B. by her next friend, C. D., respectfully showeth: That your libellant, Temsenee | on the —— day of ——, 1856, was contracted in matrimony, and married to a certain C. D., and from that time until the day of ——, 1860, lived and cohabited with the said C. D., as , and as such was owned and acknowledged by him, (2) A wife’s absence with her husband's previous consent, or subsequent approval, is not a malicious and wilful desertion ; but such consent or approval is revocable, and the par- ties, by such revocation, are placed in the same position which they occupied at the time it was given: the party continuing such ab- sence, will then be guilty of desertion, unless there be reasonable cause to justify it; which must be such as would itself be a sufficient ground of divorce. 1 Am. L. J. 889. 1 P. 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; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe. Tbid. 9 Barr 167. 2Am. L. J. 198. A wife’s insanity is not a bar to a divorce for adultery, committed 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 the court of common pleas may, on her petition, decree her alimony. 8 W. & S. 251. The removal‘ and domicil of husband and wife in another state, is no bar to proceedings for divorce on the part of the wife, for causes occurring in this state, prior to the removal, if she has returned and resided in this state one year previous to the filing of the libel. 6 Barr 449. And by act of 26th April 1850, the jurisdiction of the courts is extended to all cases of divorce for desertion or adultery, notwith- standing the parties were, at the time of the occurrence of said causes, domiciled in another state. Purd. 846. 524 LAW FORMS. and so deemed and reputed by her neighbors and acquaintances: and although by the laws of God, as well as by their mutual vows and faith plighted tu each other, they were bound to that uniform constancy and ee which ought to be inseparable from the marriage state, yet, so it is, that the said C. D., from the day of ——, 1860, hath wilfully and maliciously 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 Pennsyl- yvania, and has resided therein for upwards of one whole year previous to the filing of this —— libel, prays your honors that a subpoena may issue forth, to summon the said C. D. to appear in this honorable court, at term next, to answer the complaint aforesaid: And also that a decree of this honorable 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 —— 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 the best of —— knowledge and belief; and that the said complaint is not made out of levity and collusion between —— and —— said and for the mere pur- pose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said libel. (Signed) A.B Sworn before.me, this —— day of ——, 1860. C. D., Justice of the Peace. From the bond of matrimony—on the ground of intolerable treatment. To the Honorable, &e. Tue petition of A. C., or A. B., by her next friend C. D., respectfully showeth: That your petitioner, on the day of ——, 1850, was lawfully joined in marriage with C. D., and from that time until the —— day of ——, 1861, lived and cohabited with the said C. D., as —— and was owned and acknowledged by him, and so deemed and reputed by her neighbors 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 indignities to the person of ‘your petitioner, as to render —— condition intolerable, and life burdensome, and thereby forced to withdraw from —— house and com- pany. 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 oe of —— libel, prays your honors that a subpoena may issue forth, to summon the said C. D. to appear in this honorable court, at term next, to answer the complaint aforesaid; and also, that a decree of this honorable court may be made for the divorcin of him, the said C. D., from the society, fellowship and company, of this libellant, in al time to come, and —— the libellant from the marriage bond aforesaid, as if had never been married, or as if 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 af adultery. To the Honorable, &c. _ Tux petition of A. C. by —— next friend, C. D., respectfully showeth : That your peti- tioner, on the —— day of in the year of our Lord one thousand eight hundred and fifty, was lawfully joined in marriage with E. F,, —— and from that time hath lived and in all respects demeaned herself as a kind and loving wife. 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 his marriage vow, hath, for a considerable time past, given himself up to adulterous practices, and been guilty of adultery with a certain G. H., and divers other persons to your petitioner unknown. Wherefore, your libellant [petitioner] further showing that she is a citizen of the state of Pennsylvania, and has resided therein for upwards of one whole year previous to the filing of this her libel, [petition,] prays your honors that a.subpoena may issue forth, to summon the said C. D. to appear in this honor- able court, at —— term next, to answer the complaint aforesaid. And also that a decree of this honorable court may be made for the divorcing of him the said C. D., from the society, fellowship and company, of this libellant, [petitioner,] for all time to come 3 and LAW FORMS. 526 her, this libellant, from the marriage bond aforesaid, as if she had never been married or as if the said C. D. were naturally dead. And this libellant, &c. (Signed, ) A. B., by her next friend, C. D. (Here add the usual affidavit.) From bed and board, and .for alimony—on the ground of desertion. To the Honorable, &c. Tue petition of A. B., by her next friend ©. D., respectfully showeth, that your libellant [petitioner, ] on the —— day of ——, in the year of our Lord 1852, 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 1860, 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 neighbors 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 1860, 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. Where- fore, 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 honors that a subpoena may issue from the said court, directed to the said C. D., com- manding 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 her such alimony 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 labor. 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.) From bed and board, and for alimony—on the ground of intolerable treatment. To the Honorable, &c. : Tue 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 1857, was contracted in matrimony and, married to a certain E. F., and from that time until the day of , in the year of our Lord 1862, 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 neighbors 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 reperd which ought to be inseparable from the marriage state, yet, so it is, that the said HK. F. 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. Wherefore, 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 honors, that a subpoxna may issue from the said court, directed to the said H. F., commanding 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 EH. F.’s circumstances will admit of, so as the same do not exceed the third part of the annual rofit or income of his estate or of his occupation and labor. 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.) From bed and board, and for dlimony—on the ground of adultery. To the Honorable, &c. Tux petition of A. B., by her next friend, C. D., respectfully showeth ; That your libel- lant [petitioner] on the —— day of , in the year of our Lord 1858, 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 1861, 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 neighbors 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 al 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 1861, given himself up to adulterous 526 LAW FORMS, 7 practices, and has been guilty of adultery with @ certain G. H. and divers other persons to your libellant unknown. 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 honors 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 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 her such alimony 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 labor. [And also that the said. ©. D. may be decreed to pay-to your libellant one-half the value of all money and pro- perty, which he received by, through, or from your libellant, as her individual money and property.] And the said libéllant 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.) 45. DEFINITION OF A LEASE. A lease is a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for life, years or at will, but always for a less time than the lessor hath in the premises. 2 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. Act 21 March 1772. Purd. 497. A lease for no determinate period of time is a lease from year to year so long as both parties please. 4 R. 128. Covenants to repair, pay rent, &c., run with the land. 1 D. 210. 1 W.C.C. 375. 1 Br. 221. 2 Y. 74. He who lets is called the landlord or the lessor; he who takes the premises is called the tenant or the /essee. 46, CoMMON FORM OF A LEASE. Tus 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 hereinafter 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 hold the said messuage and tract of land, and all and singular the premises hereby demised, with the appurtenances, unto the said J. C., his executors, 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 he cor- plete and ended, yielding and paying for the same unto the said H. P., his executors, administrators and assigns, the yearly rent or sum of dollars, in four quarterly pay- ments of dollars each, on the first day of April, first day of July, first day of October and first day of January, in each and every year. And the said J. C., for himself, his heirs, executors and administrators, doth covenant, promise and agree to and with the said H. P., his heirs, executors, administrators and assigns, by these preserits, that the said J. C., his 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 here- inbefore 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, administrators and assigns, by these presents, that he the said J. C., his execu- tors, administrators and assigns, pink the rent and performing the covenants afore- said,) 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, é&c. 47, A LEASE MADE BY TENANTS IN COMMON. Tas InDENTURE, made, &c., between A. B., &e., of the first part, C. D., &e., of the second part, and H. F,, &c., of the third part, witnesseth: that for and in ccnsideration LAW FORMS. 527 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 par- ticularly 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, 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, &e. (Describe the parcels and insert the usual covenants, and then the following:) (A covenant by ene of the lessors for quiet enjoyment of 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 fol- lowing: (that is to say) that he the said EH. F., his executors, administrators or assigns, paying the rent hereby reserved and performing the covenants and agreements herein- before mentioned and contairied, and which, on his and their parts, are or ought to be paid and performed, 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 and during the said term hereby granted, without the let, suit, trouble, molestation or interruption of him the said A. B., his heirs, executors or administrators, 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.) 48. THE LESSOR COVENANTS TO SELL THE INHERITANCE TO THE LESSEE ON REQUEST. Anp 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 pre- mises 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 or 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 term, 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 purchase, and also paying to him or them all arrears of rent which shall be then due,: &c. 49. SprcraL FORM OF A LEASE WITH AUTHORITY, IN CERTAIN CASES, TO ENTER JUDGMENT IN EJECTMENT. Mesoranpum. [That A. B.,] hath demised to [C. D.,] a messuage or tenement [situate on the north side of Cedar street, No. 389, between Third and Fourth eee 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 punc- tually as above provided for, and during the term to keep, and at the end thereof peace- ably 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 absolutely determine: and upon the expiration or other deter- mination 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 suficient warrant; and the lessee hereby releases to the lessor all errors and defects whatsoever, in entering such action or judgment or in any proceed- ing thereon, or concerning the same. No sneh 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. 528 LAW FORMS. In witness whereof the said parties have hereunto set their hands and seals. Dated the first day of June, a. p. 1860. Signed, A. B. pee Signed, sealed and ey C.D. [szau. in the presence of E. F., G. H. 2 50. ASSIGNMENT OF A LEASE. Know aL. MEN by these presents, that I, the within-named E. D., for and in considera- tion 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 I 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, and 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 ;—Zo have and to hold the said messuage, &c., unto the said E. F., his executors, 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. 51. A SHORTER FORM. Mrmoranpum. This 1st day of January 1860, the within-named E. D. hath this day assigned and made over unto the undersigned E. F,, of, &c., all and singular the heredita- ments and premises in the within-written lease described and granted, with the whole of his estate and interest. As witness his hand, &c. 52. LETTERS OF ATTORNEY. A letter of attorney is an instrument of writing authorizing a person who is called the attorney of the person appointing him, to do any lawful act in the place or stead of him who appoints, as to make a deed, collect and receive debts, &c. If proved by two or more of the witnesses thereunto, 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 of such city, town or place, is suffi- cient in law. Actof 1705. Purd. 67. 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 Pet. ©. 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 24 February 1834, § 12. Purd. 282. If the power be special, everything not in strict conformity thereto is void. 1 W. C. C. 174. 2D. 246. 2 Y. 88. 1 ¥. 200. 5 B.618. 148. & R. 331. 68. & R. 90, 149. 108. & R. 251. 1 RB. 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 attorney, even if he exceeds his authority, unless there is notice. On the death of the con- stituent, the power of attorney ceases, and all subsequent acts under it are void: 53. GENERAL FORM OF A LETTER OF ATTORNEY. Know aL men by these presents, that [T, A. B.,] have constituted, made and appointed, and by these presents do constitute, make and appoint, [C. D, my] lawful attorney, for [me,] and in [my] name and stead, and to [my] use, to ask, demand, sue for, levy, recover and receive, all such sum and sums of money, debts, rents, goods, wares, dues, accounts and other demands whatsoever, which are or shall be due, owing, payable and belonging to [me,] or detained from [me] in any manner of wayssor means whatsoever, especially, &c., [here state particularly what the attorney is required to execute, ] giving and granting unto [my] said attorney, by these presents, al full and entire power and authority, 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 1 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 t 4 LAW FORMS. 529 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 Ea for the purpose aforesaid to make and constitute, and again at pleasure to revoke; ratifying, allowing and holding for firm and effectual, all and what- soever [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 undred and [sixty. Signed, sealed and delivered, (Signed,) 1 .B.] [seat] in ne resence of .H., BE. F. COUNTY OF —. Tuts [tenth] day of [May,] a. p. [1860,] personally appeared before me, the subscriber, 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 Poel A. D. [1860.] [E. F.,] Justice of the Peace. [szaz.] 54. GENERAL LETTER OF SUBSTITUTION. To ALL PEOPLE to whom these presents shall come, CO. D., of the city of Philadelphia, and state of Pennsylvania, merchant, seids greeting: Whereas A. B., of the city of Philadelphia, 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 aye ane did make, constitute and appoint the said C. D. to, &c., [as in the original ¥ er,| as in and by the said letter of attorney, [recorded, or intended to be recorded, ¢.,| 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 sub- stitute E. F., &e., 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 requisite and necessary to be done and performed for effecting the pare and object in the said letter of attorney contained, as fully and effectually, in all respects, and to all intents and Porporte: as I myself might or could do, in virtue of the power and authority aforesaid, if personally pee hereby ratifying and confirming all and whatsoever my said substitute may lawfully do in virtue hereof. In witness, &c. 55. To RECEIVE MONEY ON A BOND. Know aut men by these presents, that I, A. B., of the borough of R——, and state of Pennsylvania, hatter, do make, constitute and appoint C. D., of the city of Baltimore, in the state of Maryland, my true and lawful attorney, for me and in my name, to ask, demand and receive from E. F., of the city of Baltimore 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 and means, in my name, or otherwise, for the recovery of the same, with the interest thereon, if any be due, by.attachment, bill, plaint, arrest or otherwise. In witness whereof, &c. I 56. To RECEIVE DIVIDENDS ON STOCK. Know atu men by these presents, that I, A. B., of the city of L——, and ‘state of Pennsylvania, 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 treasury of the United States, [or in the books of the loan office, or bank of, &c., 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 ratifying and confirming all that my said attorney or his substitutes shall lawfully do by virtue hereof. In witness, &c. . 57. To convey Lanps.(@) Kwow att men by these presents, that I, A. B., of, &c., have made, constituted and appointed, and by these oe do make, constitute and appoint, and in my place and stead, put and depute OC. 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, é&c., [here describe the (2) Powers relating to lands should be recorded in the county where the lands lie. 4 34 530 LAW -FORMS. prémises,] 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 me, and in my name, place and stead, and as my proper act and deed, to sign, seal, deliver and acknowledge, all such deed or deeds of conveyance as shall be necessary for the absolute pen and assuring of the premises unto the purchaser or purchasers, in fee-simple. Giving, &o. e 58, ACKNOWLEDGMENT OF A DEED. Know at men by these presents, that I, the within named A. B., do hereby nominate and appoint O. D., H. F., and G. H., all of W—— county, in the state of Vermont, 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 within named J. K. In witness, &c. 59. To ACKNOWLEDGE SATISFACTION ON A MORTGAGE. To aLL PEOPLE to whom these presents shall come, E. D., of the city of Philadelphia, merchant, sendeth greeting : Wuerzas A. B., of, &., by indenture of mortgage under his -hand and seal, bearing date the —— day of ——, 18—, for the better securing the payment of the sum of three hundred dollars, with its intérest, which he was justly indebted to the said C. D., on a certain obligation therein 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. Zo 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 ee 2 county of Butler, in mortgage book A., No. 2, page —, relation being thereunto had, appears. And whereas the said A. B. hath fully satisfied and paid the said debt and interest: Therefore 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 lawful attor- ney, 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 sufficient warrant. In witness whereof, &c. 60. A POWER OF ATTORNEY TO LEASE LANDS NOT EXCEEDING TWENTY YEARS. Kyow aut 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, &c., situate, lying or being, in the county of ——, or any of the premises, as to the said C, D, 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 deliver 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 form 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 hereof, in the premises. In ‘witness, &c. 61, A REVOCATION ‘OF A POWER OF ATTORNEY. ‘To all persons to wnom these presents shall come, A. B., &c., sendeth greeting Wuerzas I, the said A. B., by my letter of attorney bearing date —, did constitute, &c., 0. D., &c., my attorney for certain purposes, and with certain powers, in the said letter of attorney contained, as therein at large appeareth: Know ye, that I, the said A. B., for divers considerations me thereunto moving, have made void, countermanded and revoked, 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. . 62. POWERS OF ATTORNEY TO ATTORNEYS AT LAW. POWER OF ATTORNEY BY DEFENDANT, Kwow att Men by these presents, that I, A. B., of the city of Lancaster, do hereby make, appoint and constitute, C. D., esquire, of the borough of R——, my good and lawful ‘attorney in law, and in fact, to appear for me in a certain plea, pending in the LAW FORMS. 581 court of common pleas, wherein E. F. is plaintiff, 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 effectual a manner as I could do, if personally present in the said court ; hereby confirming and sanctioning 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 sity. (Signed,) A.B. ]szaz.]. ‘Witnesses. 2 C.D., E. F. BY PLAINTIFF TO INSTITUTE SUIT. Know at men, &c. [as above.] To institute forme, and in my name, plea of —— against a certain EH. 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 effectual a manner as I, the said A. B., could do, if personally present; hereby confirming and sanctioning whatsoever my said attorney in the said pléa, touching the prosecution thereof, may do, according to law, in the premises. Witness, &c. [as above. ] BY PLAINTIFF TO CONDUCT SUIT ALREADY BROUGHT. Know atu men, &c. [as above.] To appear for me, in a certain plea or action, com- menced and pending in the Butler 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 plea or action, so as aforesaid brought, 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 confirming and sanctioning whatsoever my said attorney in the said plea, touching the prosecution thereof, may do, according to law, in the premises. Witness, &c. [as above. ] 63. PETITION FOR A TAVERN LICENSE. To the Honorable the Judges of the Court of Quarter Sessions for the County of Mont- gomery. Tue 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 [Egypt street, between Third and Fourth streets, in the borough of Norristown 3] con- taining 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 [twenty] rooms. The nearest tavern [is distant half a square.} Which said house is well calculated for a public house of entertainment, and from its neighbor- hood and situation, is suitable for the accommodation of inhabitants, strangers and travellers. ‘ That your petitioner bond fide means to appropriate [seventeen] 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. ; z 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, ) [A. B.] ‘We, the subscribers, citizens of, and residing, within the bounds of [the borough of Norristown,] do hereby certify that we are personally and well acquainted with [A. B.] thé within-named petitioner. That he is, and we know him to be,.of good repute for honesty and temperance, and is well provided with house-room 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 neighborhood and situation, believe it to be suitable for a tavern, and necessary to accommodate the public, and entertain strangers and travellers. (Bach person who signs this recommendation is requested to write his residence after his name.) NAMES. | RESIDENCE. COUNTY OF MONTGOMERY, ss. Be 17 REMEMBERED, That on the [tenth] day of [May,] Anno Domini on thousand eight hundred and [sixty,] before me, the subscriber, clerk of the court of quarter sessions, for the county of Montgomery, personally appeared [A. B.] the petitioner, who being duly . we a ine 7 e 532 LAW FORMS. [sworn] according to law, doth depose and say, that the facts set forth and contained in this petition are just and true, according to the best of his knowledge and belief. [Sworn] and subscribed, = (Signed, ) [A. B.} day and year aforesaid. E. F,, Clerk.] 64. Liens. The benefit of the act of 16th June 1836 (Purd. 708), is extended to wharf- builders (Purd. 710, Dunl. 770), to paper-hangers (Purd. 710), to plumbers, gas- fitters and persons furnishing and erecting grates and furnaces are 710), and to persons erecting buildings by contract. Purd. 714. Materials furnished for, though not used in the erection of a building, constitute a lien. 28. & R.17. 12 Ibid. 303. If not furnished for, although used in the building, no lien is acquired. 16 S.& 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. 714. 65. Form oF 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 [three-story brick house, ] together with the lot whereon the same is erected, situate in the [city] of Philadelphia, [in Button- wood street, north side, No. 1005, three doors above Tenth street, ] belonging or said to belong to [J.K.] [If for work and labor, say for work and labor,] viz. —— done and performed in the erection 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 and provided for the erection and construction of said [house] by [us,] the said [A. B. and C. D.,] as a builder employed in furnishing the materials for the sai ——,, within six months last past.) A bill, or more particular statement of the materials, so found and provided, is hereto annexed. [A. B.] therefore requires the prothono- tary of the said court to enter the same as a lien against the premises aforesaid, agreeably to the a of the act of assembly in such case made and provided. To [H. M.,] Esquire, prothonotary of said court. Philadelphia, a. p. 1860. 66. Morrceaces. 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 bor- rowed, 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 mortgagee. Proceedings for recovery of money on mortgage in Pennsylvania, are by scire facias. Act of 1705, § 6. Purd. 328. Mortgage to be recorded within six months. Act of 28 May 1715, § 8. Purd. 324. The lien of mortgages is according to priority of record, except mortgages for purchase-money, which take effect from date, if recorded within sixty days. Act of 28 March 1820, § 1. Purd. 324. 67. Form oF A MORTGAGE. Tus INDENTURE, made the [tenth] day of [May,] in the year of our Lord one thousand eight hundred and [sixty,| between ti B., of mee of Pittsburgh, county of Allegheny, state of Pennsylvania, currier,] of the one part, and [C. D. of the same place, carter, | of the other part. Whereas, the said Bs B.] in and bya [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 [ee thousand dollars] conditioned for the pay- ment of the just sum of [one thousand do — five years from the date thereof, with lawful interest, payable half-yearly for the same, without any fraud or further delay. Provided, however, and it is hereby expressly agreed that if at any time, default shall e made in the payment of interest on said principal sum for the space of thirty days after any one payment thereof shall fall due, then and in such case the whole principal debt aforesaid shall, at the option of the said C. D., his executors, administrators or assigns, LAW FORMS. 588 become due and payable immediately and payment of said principal sum of [one thous- and dollars] and all interest thereon may be enforced and recovered at once, anything therein contained to the contrary thereof notwithstanding, | as in and by the said [cer- tain] recited obligation ayd condition thereof, relation being thereunto had may more fully and at large appane Now, this indenture witnesseth, that the said [A. B ] as well for and in consideration of the aforesaid debt or [eerie] eum of [one thousand to. D.| and for the better securing the payment of the same with interest unto the said [C. D., his executors, administrators and assigns, in discharge of the said recited obliga- tion, as for and in consideration of the further sum of one dollar unto [him] in hand well and truly paid by the said Re D.] at and before the sealing and delivery hereof, the receipt ehereol ie hereby acknowledged, [hath] granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents [doth] grant, bargain, sell, alien, enfeoff, release and confirm unto the said [C. D.,] his heirs and assigns, [here describe particularly the property] together with all and singular-the ways, waters, water-courses, rights, liberties, privileges, improvements, hereditaments and appurtenances whatsoever there- unto 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, nevertheless, that if the said [A. B.,] his heirs, executors, administrators or assigns, do and shall well and truly pay, or cause to be paid, ynto the said [C. D.,] his executors, administrators or assigns, the aforesaid debt or sum of [one thousand dollars] on the 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 anything, for or in respect of any taxes, charges or assessments whatsoever, that then, and from thenceforth, as well this present indenture, and the estate hereby granted, as the said recited obligation, shall cease, determine and become void, anything herein- before contained to the contrary -thereof, in any wise notwithstanding. [And pro- vided, further that in case of default in the payment of the interest as aforesaid, or any part thereof, it shall thereupon be lawful for the said C. D., his executors, administrators or assigns to sue out forthwith a writ of sctre facias upon this present indenture of mortgage, and to proceed at once to recover the principal money hereby secured, and all interest thereon, according to law, without further stay, any law or usage to the contrary nee ere In witness whereof, the said parties to these presents have inter- changeably set their hands and seals thereunto. Dated the day and year first above written. Eee Sealed and delivered in Signed, [A. B.] [sEAL.] the presence of E. T. R. S. On the [tenth] day of [May] Anno Domini 1860, 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 de- sired the same might be recorded as such. : Witness my hand and seal, the day and year aforesaid. [G. H., Alderman.] [sEAL.] 68. AssIGNMENT OF A MORTGAGE, Know aut 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, &e.,, at and before the sealing and delivering hereof, the receipt whereof is hereby acknow- ledged, have granted, bargained, sold, assigned and set over, and by these presents do 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. Together with the rights, members, and appurtenances thereunto belonging, and all my estate, right, title and interest therein: Zo have and to hold all and singular the pre- mises hereby granted and assigned, or mentioned, or intended so to be, unto the said C. D., his heirs and assigns forever; subject, nevertheless, to the right and equity of redemption of the within named H. F., his heirs and assigns, (if any they have.) in the same. In witness whereof, &c. [It should be acknowledged, or proved and recorded.] 69. ForM OF MANUMISSION OF A SLAVE. Know aut mew 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 hereof I do hereby acknow- ledge, have given, granted, bargained, sold, aliened, released, and confirme , and by 5384 / LAW FORMS. thes: presents do give, grant, bargain, sell, alien, release and confirm, unto the said A~——, a negro boy called S—, fe 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, forever. In witness, &e. 69. ANOTHER FORM OF THB SAME, Know aun MEN by these presents, that I, A. E., of ——, from motives, of benevolence 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, labor and service, and of, in and to, the estate and property which she may hereafter acquire or obtain, excepting only her services, in manner ape during the term above mentioned. In witness, &c, : 70. Roaps. The act of 1700, c. 57, was the first enactment in Pennsylvania, on the subject of erecting bridges and maintaining highways. It continued in force until the act of 1802. The revised act 18 June 1836 (Purd. 871), supplies the place of both the above mentioned acts. : 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, 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 prefixed, is uniformly applied to public roads, and is synonymous with the term highway. 3 Y.426. The word street is also considered equivalent to highway. 48. & R. 106. The court of quarter sessions of every county (except Philadelphia), on being petitioned to grant a view of a road in their respective county, is required (Act 13 June 1836, § 1), to appoint, as often as may be needful, six discreet and respectable citizens, qualified to vote for members of the legislature (§ 51), but not residing on or owning land along the route of such road (§ 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 (§ 2), having respect to the shortest distance and the best ground, and with the least injury to private property, and, as far as practicable, in conformity to the desire of the petitioners. To make a valid view, five of the six must view the ground, and Jour of the actual viewers concur in the report (§ 52), : The report of the viewers must be made to the next term of the court, and state 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 pri- vate road; annex a plot or draft, stating the courses and distances, noting brief improvements through which it may pass, and, whenever practicable, 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 (§ 3). ; The court are to direct of what width the road shall be (§ 4). Public roads must not exceed fifty, nor private roads twenty-five feet in width (§ 5). Damages are to be assessed by six disinterested persons, appointed by the court, on petition, who who are to report in writing, and after confirmation by the court, the amount of damages are to be paid by the county treasurer (§§ 7, 8). Tn cases of private roads, swinging gates may be allowed by the court, after view and favorable report, and may be put up at the expense of the parties applying for LAW FORMS. 585 the same, by petition, when the same may be done without much inconvenience to the persons ysing such road (§ 13). Private roads must be opened, fenced, and kept in repair, by the petitioners, their heirs and assigns (§ 15). The damages shall be paid by the same persons, and the road shall not be opened until they are fully paid (§ 16). Othe? persons than the petitioners may, afterwards, use a ep road, after contributing to the expense such sum as the court may direct ¢ This general system, however, established by the act of 1836, has been so fre- quently altered by special legislation, extending only to particular counties, that it is not safe to rely on it as of universal application. Parties concerned in road cases should always apply at once to experienced counsel, as there are no cases in the courts in which more oversights are committed than in those arising under the road laws, and none in which more vexatious delays may be interposed by those desirous of obstructing the proceedings. The various special acts will be found collected in Purdon’s Digest, to which the inquirer is referred. 71. Petition ror 4 PUBLIC ROAD. To the judges of the Court of Quarter Sessions of the Peace of the county of ——: Tue petition of the subscribers respectfully showeth: That they labor under great in- convenience for the want of a public road or highway, (or private road,) to lead fro -—— to ——,, in said county, [there must be no intermediate points made in the roa prayed for ;] they therefore pray the court to appoint persons coy qualified to view the ground proposed for said road, and to lay out the same according to law. ’ 72, ORDER OF COURT ON THE ABOVE PETITION. Ara Court of Quarter Sessions of the Peace of the county;of ——, held at ——, in and for 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 labor under great in- convenience 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., &e., (who being first: seyerally 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 four 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 tor ‘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 petitioners, and, if practicable, 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. 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 private road,) annex and return a plot or draft thereof, stating the courses and dis- tances, (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. 73. RETURN OF THE INQUEST. To the judges of the Court of Quarter Sessions of the Peace, in the within or annexed order named: . We, the subscribers, the persons appointed by the said court, to view and lay out the road therein mentioned, report, that having heen 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,) haying viewed the ground for the proposed road, and four of us concurring, did lay out, and now return the same for a public (or private) road, beginning, &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 Jay out the same. Witness, &c. 536 | LAW FORMS. 74, A PETITION FOR DAMAGES. Tue 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 , &e., 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 th®court to appoint persons to view the premises, assess the damages sustained, and report the same to the court at the next term thereof. 75. ORDER OF COURT. Ata Court, &e. . . 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 appoint 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 disinter- ested persons, 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.) 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 the next term of this court. In witness, &c. 76. PRIVATE ROADS, PETITIONS, &0. The form of the order and other procedings on application for private roads will '; be the same as for public roads, except omitting in the order of the words, “ stating particularly whether they judge the same necessary-for a public or a private road.” 77. PETITION FOR GATES ON A PRIVATE ROAD. e To the Judges, &e. On the petition of A. B., C. D., setting forth that they labor under great inconvenience for want of hanging aswinging 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! “Report. We the subscribers appointed to view, &c., report that we, after being first severally esworn or affirmed, according to said order, viewed the said road as directed, and are of opinion that a gate may be hung upon the said road at ——, according to the prayer of the petitioners, without much inconvenience to the persons using the said road. Witness our hands and seals, &c. 78. PETITION FOR VACATING ROADS. To the Judges, &e. Tue 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. 79. Report oF VIEWERS. Ws, the subscribers appointed to view the road therein mentioned, report that in pur- suance of said order, (having been ee 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, inconvenient and burdensome, and ought (nod) therefore to be vacated. Witness our hands and seals this —— day of ——, a, n, —., ; 80. Orper. Ata Court, &o. Tux persons appointed at —— sessions, a. p. —, to view a road leading from, &e LAW FORMS. 537 —- to —, &c., and to judge whether the same has become useless, inconyenient 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, inconvenient and burdensome, and ought to be vacated ; whereupon the court confirm the said report and order that.the said road may be vacated. $1, For ANNULLING PROCEEDINGS HAD BEFORE THE ROAD IS OPENED. Petition. THE petition of the subscribers, being a majority of the original petitioners, respect- . fully represents: That a petition was presented to this court at sessions last, signed by your 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 public (or private) use a road, beginning, &c., , which was, on due consideration, 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 burdensome—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. 82. Report oF VIEWERS. We, the subscribers, appointed to view the road herein mentioned, do report: 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 burdensome. 83. Prririon To VACATE A STATE ROAD, SUPPLIED BY A TURNPIKE. To the judges, &c. Tux 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 permanent turnpike, made and com- pleted agreeably to law, from —— to They; therefore, pray the court to appoint persons to view the road, so supplied and rendered useless, and make report to the court according to law. 84. Pxrrrion FoR A REVIEW. To the Judges, &c. : Tue petition of the subscribers respectfully showeth :—That a road hath been lately laid out, by order of the court, from, &e. (here set forth the road as reported by the original viewers,) which road, if confirmed by the court, will be very injurious to your petitioners. They, therefore, pray the court to appoint proper persons to review the said road, &c., as in case of views. 85. PETITION FOR A ROAD ON A COUNTY LINE. To the Judges, &e. Tue petition of the subscribers respectfully represents:—-That your petitioners labor under great inconvenience for want of a public road or highway, to lead on the line which divides the said counties from —— in county to ——— i —— county. Your petitioners therefore pray the court to appoint proper persons to view and lay out the same according to law. 86. REPORT THEREON. ' We the subscribers appointed within, and a similar order from the court of quarter sessions of ——— county, to view and lay out the road therein mentioned, report, that, in ursuance of said orders, having been severally sworn or affirmed, we have viewed and faid 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 umprove- ments, through which it passes,) or that there is no occasion to lay out the same. 87. PrtiTIon FOR A COUNTY BRIDGE, To the Judges, &e. ae 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 mads,) pray the court to appoint persons to view the premises. 538 LAW FORMS. 88. Rerort THEREON. We, the subscribers, appointed to view the place proposed for a bridge, in the within order 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 bear. ae ; (If the viewers are of opinion that a change or variation in the route of the said road is necessary, add the following :) bes 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. p. 1860, 89, PErrITIoN FOR A BRIDGE ON A COUNTY LINE. To the Judges of the Court, &e, 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 pao highway to —— crosses said creek, in the township of ——, in —— county, and n the township of —, in. county ; and that the erection of such bridge will require more expense than it is reasonable the said township should bear; your petitioners pray the court to appoint persons to view the premises, and take such order on the subject as is required and directed by the acts of assembly in such case made and provided. 90. DuE-BILL. $260.00-_ | Lancaster, June 4th 1860. - 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. - : 91. PRomMIssory NOTES. $560.30 7 Pittsburgh, July 20th 1860. : Ninety days after date I promise to pay to the order of K. L., five hundred and sixty dollars and thirty” cents, without defalcation, for value received. M.N 4 ANOTHER FORM. $320.40 . Harrisburg, July 20th 1860. oe oF a Herries, oF the eee of October meee I poms to pay, or cause to be paid, to O, P., or order, three hundred twent - without defalcation, for yalue received. Sen Tee STC ERAS c z _ Ifeither of the foregoing notes is passed away, it must be indorsed hy the person in whose favor 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. $475.25 Northumberland, July 20th 1860, ———— Sixty days after date I promise to pay to S, T., four hundred and seventy-five dollars and twenty-five cents, for value received. Vv. WwW. This note cannot be assigned, because the drawer of the note does not J romise pay to any person but S. T. the amount of the note. If V. W. were to aoe ue 4 LAW FORMS. 539 above note, and give it to X. Y., and X. Y. were to bring suit in his own name, he could not recover, because the note is not payable to order. JUDGMENT NOTE. $500.00 Philadelphia, May 23d 1860. Thirty days after date I promise to pay to A. B., or his assigns, the sum of five hundred dollars, without defalcation, for value received: and I hereby authorize any attorney of any court of record in Pennsylvania, or any other state, to confess judgment against me for the said sum. J.B, JUDGMENT NOTE WITH WAIVER OF EXEMPTION. $1000.00 Pittsburgh, April 2d 1861. ——— Nine months after date, I promise to pay to J. K., or his assigns, the sum of one thousand dollars, without defaleation, for value received: and I hereby authorize any attorney of any court of record in Pennsylvania, or any other state, to confess judg- ment against me for the said sum, with release of errors, &c,; and I hereby also waive all stay of execution from and after the maturity of the above note. And las for myself and my legal representatives, hereby waive and relinquish unto the said J. K. and his legal representatives, all benefit that may accrue to me by virtue of any and every law made or to be made, to exempt any of my property or estate from levy and sale under execution, or any part of the proceeds arising from the sale thereof, from the payment of the said moneys or any part thereof. : A. 0. 92. ReEorrpts. Bedford, July 10th 1860. 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. Cc. D. $210.00. A FORM FOR RENT. Sunbury, July 10th 1860. Reeeived 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 10th 1860. 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 bebeestras $350.00 -N. A receipt im 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 OF ANOTHER. Downingtown, May 4th 1860. Received from O. P., the sum of sixty dollars and ten cents, for work and labor done and services rendered by Q. R. for the said O, P. $60.10 FOR INTEREST PAID ON A BOND. York, May 20th 1860 Received from U. W., the sum of thirty dollars, for one year’s interest of $500, 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 14th 1860, Received from A. B., his promissory note, payable to myself or order, for five hundred 540 . LAW FORMS. 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 FOR CATTLE, ETC., PUT OUT TO WINTER. Tinicum, November 2d 1860. Received this day from G. H., by E. F., six oxen and four cows, [or whatever other animals 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. p. 1861, 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. 93. 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, after 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. 1016. By act 11 April 1848, a married woman may dispose by her last will, of her separate property, 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. Purd. 1016. 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 prevented, if he waited, from writing his testaments, desires his friends to bear witness of his last will, and which must be in the presence of three persons, and then declare the same before them; such declaration being proved by two of the witnesses after his decease is reduced to writing by the ordinary register of wills, and is as valid as if it had been originally written by the testator, as far as relates to his personal pro- perty; 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. 1016. The making of a mark or cross at the end of the will, is a sufficient signing. Purd. 1016. Where the testi- mony of the subscribing witnesses cannot be had, evidence of their handwriting will suffice. 6 Barr 409. As to what is a sufficient signing at the end of a will, see 6 Barr 409. 8 H. 281. 7 C. 246. 4 Comst. 140. 1 Eng. L. & Eq. 683-6. 9 Ibid. 573. If two wills be found, and it do not appear which was the former, both will be void ; but where there is any date, the latter revokes the former. 94, 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 ully 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 ped 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 where. soever, both real and personal, I give and bequeath the same and every patt and parcel thereof unto —— executors, administrators and assigns. And I do ereby nominate, LAW FORMS. 541 oonstitute and appoint —— of —— and —— of ——, executors of this my 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 my hand and seal, the —— day of , A.D, 1860. [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 have sub- scribed our names as witnesses thereto. A. B., C.D 95. PrReaMBLES TO WILLS. A preamble 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 and testament, hereby revoking and making void all former wills by me at any time heretofore made; and first and principally I commit my soul into the hands of my Creator who gave it, and my body to the earth, to be interred in the burying-ground of B—, &c., at the discretion 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. : A preamble to the will of a person that 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 pre- pared 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 penrely I commend my soul into the hands of Almighty God my creator, and as to, &c. : Another preamble revoking all former wills. Tus 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. 96. Wit BEQUEATHING PORTIONS TO SEVERAL CHILDREN, AND CONTAINING AN APPOINTMENT OF GUARDIANSHIP, In the name of God, amen. I, A.B., of, &., 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 conveniently may be. I give and bequeath all my messuage, lands, tenements and hereditaments 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 purchased 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, hereinbefore 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, charged and chargeable, nevertheless, with the annuity or yearly sum of , to be issu- ing and payable out of the 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 payments 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 he- reditaments 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 8. B., tomy 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 in- terest 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 542 LAW FORMS. month next after my decease. I give to my daughter H. B., to be paid to her within two years next after 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 $——, 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 $--—, per cent. 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 minority. 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, administra- tors and assigns, upon the trust, to pay the interest of the said sum of $——, to my daughte: J. L., for her sole and separate use during her life, exclusive of her husband, and for which her receipt alone shall be a sufficient discharge, and from and after the decease of my 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. Butif 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 bequeath the same to my said son W. B., his executors and administrators. And I give the custody, tuition and guardianship of the persons of such of my children as shall he under the age of twenty-one 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 hereditaments which are hereinbefore 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 maintenances and support. In witness, &c. 97. WILL WHEREBY THE TESTATOR ORDERS HIS PERSONAL ESTATE TO BE APPRAISED 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 fully paid and satisfied ; and from and after payments thereof, and subject thereunto, then my will is, that all the residue of my goods, chattels, merchandises and household furniture shall be indifferently appraised, and after such appraisements made, that the same shall be 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 ying, 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 bequeath the samé unto my sons the said ——-, equally to be divided amongst them share and share alike, to be paid, &c.; and I make and ordain E. T, and H. T. executors of this my last will and testanient, é&c. [ 543 j Lewdness. I. Provisions of the Penal Code. If. Judicial decisions. I. Aor 31 Maron 1860. Purd. 224. Szor. 40. Ir any person shall publish or sell any filthy and obscene libel, or shall expose to sale, or exhibit, or sell any indecent, lewd and obscene print, painting or statue; or ifany person shall keep and maintain any house, room or gallery, for the purpose of exposing or exhibiting any lewd, indecent and obscene prints, pictures paintings or statues, and shall be convicted thereof, such person shall be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding one year. a Scr. 44, If any person shall commit open lewdness, or any notorious act of public indecency, tending to debauch the morals or manners of the people, such person shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one hundred dollars, or undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court. II. Any offence which, in its nature, and by its example, tends to the corruption . a as the exhibition of an obscene picture, is indictable at common law. 2 8. In an indictment for exhibiting an obscene picture, it need not be averred, that the exhibition was public; if it be stated, that the picture was shown to sundry persons for money, it is a sufficient averment of its publication. Ibid. Nor is it necessary that the postures and attitudes of the figures should be minutely described ; it is enough, if the picture be so described as to enable the iey to apply the evidence, and to judge whether or not it is an indecent picture. id. Nor is it necessary to lay the house, in which the picture is exhibited, to be a wuisance ; the offence not being a nuisance, but one tending to the corruption of morals. Ibid. If a man indecently expose his person to a woman, and solicit her to have sexual intercourse with him, and persist in doing so, notwithstanding her opposition and remonstrance, this is an act of open lewdness, for which an indictment will lie. 18 Verm. 574. Libel, I. Constitutional provision respecting libels. III. Judicial authorities. II. Provisions of the Penal Code. IV. A warrant for a libel and proceedings. I. “Tue printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, ‘and every citizen may freely speak, write and print, on any subject, being responsible for the abuse of that liberty.. In prosecutions 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 evidence. And in all indictments 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. 9, §7. This important section, short as it is, may ‘be divided into two parte—the first is decla- ‘ratory, and the second, enactments founded on the rights previously declared. The enact- ment clauses refer wholly to criminal ‘proveedings, and have no reference to or bearing upon civil actions brought for the recovery of damages. In such actions the defendants always allowed to give the truth in evidence. In criminal cases every defendant, under 544 LIBEL. this constitutional provision, who is charged with a libel for having published anything “investigating the official conduct” of men in public stations, or “where the matter pub- lished is proper for public information,” has also a constitutional right to give the truth in evidence. II. Act 31 Marcu 1860. Purd. 221. Szor. 24. If any person shall write, print, publish or exhibit any malicious or defamatory libel, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, con- tempt or ridicule, such person shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, or undergo an im- prisonment not exceeding twelve months, or both, or either, at the discretion of the court. III. 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 reputation of one that is alive, and thereby exposing him to public hatred, contempt and ridi- cule. 4 Bl. Com. 150. Any malicious printed slander which ends to expose a man to contempt, hatred or degradation of character, is a libel. To print and publish that A. had been deprived 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 B. 340. The communication of a libel 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 publicly printed, for it equally tends to a breach of the peace. 4 Bl. Com. 150. : For the same reason it is immaterial, at common law, with respect, to the essence of a libel, whether the matter be true or false, since the provocatian and not the falsity is the thing to be punished criminally. Ibid. 151. Christianity is part of the law of Pennsylvania, 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 temporal offence. The principle is, that the publication, whether written or oral, must be malicious, and designed for that end and purpose. 11S. & R. 394. Where a man publishes a writing which, upon the face of it is libellous, the law presumes that he does so with that malicious intention which constitutes an offence, and it is unnecessary on the part of the prosecution to give evidence of any circum- stance from which malice may be inferred. In such case, it is incumbent upon the defendant, if he seek to discharge himself from the consequences of the publica- Hon a et that it was made under circumstances which justified it. Ros. Crim. aw 5385. IV. A WARRANT FOR PUBLISHING A LIBEL. COUNTY OF WESTMORELAND, ss. . The Commonwealth of Pennsylvania, To any constable of the said county, greeting: You are hereby commanded to take the body of A. B., if he 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 bavin in a newspaper published in Greensburg, on the third of June inst., called the “ Paul Pry,” published a false, scandalous and malicious libel, of and concerning the said C. D., and further to be dealt with according to law. And for so doing this shall be your war- rant. Witness the said J. R., at Greensburg, who has hereunto set his hand and seal, the eighth day of June, in the year of our Lord one thousand eight hundred and sixty, J. R., Justice of the Peace. int If, on hearing, the justice shall be satisfied that a libel has been published, and pub- lished 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 the county prison. The witnesses, as in all other cases where there is a binding over for trial, ehscle be held in recognisance to testify. es oe [ 545 J Dien, A LIEN is simply a right, at common law, to possess and retain property, until some charge attaching to it be paid or discharged. It generally exists in favor of artisans and others, who have bestowed labor and service on the property in its re- pair, improvement, and preservation. It has also an existence in many other cases, by the usages of trade. Cross on Liens 2. There are two species of liens known to the law, namely, particular liens and general liens. Particular liens are where persons claim a right to retain goods in respect of labor and money expended upon them; and those liens are favored in law. General liens are claimed in respect of a general balance of accounts; and these are founded in custom only, and are therefore to be taken strictly. Addison on Contracts 1175. : 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 work done on them, is a part of the common law of Pennsylvania. 2 W. & S. 395. 9 C. 151. A miller has a lien upon the corn ground by him. 5 M.&8.180. A shipwright upon a ship for repairs. (4 B. & A. 352.) A tailor on the cloth delivered to and made up by him. (8 M. & 8.169.) And, in general, where a person bestows his labor 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. A workman who bestows labor 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. (5 Moore & Scott 180.) Secus, as it seems, where the parties contract for a mode or time of payment inconsistent with the workmen’s claim to the possession. Ibid. A party cannot set up a right of lien which is at variance with the terms or conditions, or implied understanding upon which. he received the property. Addison on Contracts 1176. One who has the exclusive custody of a stock of goods of another, for the pur- pose of carrying on the business of a retail store, and during its continuance be- comes 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 W. 512. As an exclusive right to the possession of the thing is the basis of a lien, it exists not in favor of a journeyman or day-laborer. 2 W. & 8. 395. One having a lien may relinquish it by his conduct. 4 Y. 456. Wharfingers have a lien on goods brought to their wharves for the balance of a general account. 1 Esp. 109. An attorney has a lien for his fees upon the money and papers of his client, while they are in his hands. 7 H. 99. 2 Wr. 281: The evidence to establish a right 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. 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 B. 221. If property be forcibly or clandestinely taken from the possession of one having a lien on it, he may reclaim it as his property in an action or replevin, or in any. other proper form. 11 H. 193. (For a lien of common carriers, see Common Carriers. Lien of innkeepers, &., see Inns and Taverns. Lien of judgments, see Judgment. For liens of mechanics on buildings, see Mechanics’ Lxen.) The act 16th March 1858, provides that common carriers, or other persons having a lien upon goods, wares and merchandise, for or on account of the costs and ex- penses of carriage or storage, or any other charge arising from the transportation, keeping or storage of such property, in case the owners or consignees shall not pay or discharge the amount due for such cost, expense, carriage, storage or other charges 85 546 LIMITATION OF ACTIONS. hereinbefore named, may, after the expiration of ninety days from the notice herein- after provided, proceed to sell the same, or so much thereof as may be necessary to discharge said lien, at public auction: Provided, That notice of sale shall be given | as required for sheriffs’ sales of personal property, and that thirty days’ notice of said lien be given to the owner or consignee of the property, if they can be found, and in case they cannot be so found, that the same shall be advertised weekly in some newspaper published in the proper city or county to which the goods, wares or merchandise have been consigned, for four consecutive weeks before the sale, the residue of money arising from such sale, after deducting costs of transportation charges and storage, advertising and sale, to be held subject to the order of the owner or owners of such property. Purd. 652. . Limitation of Actions. I. Limitation of personal actions. III. What will remove the bar of the statute. II. When the statute of limitations begins IV. Limitation of penal actions. to run. V. Limitation of criminal prosecutions. I. LIMITATION OF PERSONAL ACTIONS. Limrration is a certain time assigned by statute, within which an action must be brought. Termes de la Ley 417. Statutes of limitation are statutes of repose, and are often the only shield against a stale claim; and in this aspect, they are, in modern times, favored by the courts. The statutes, in such case, bar the remedy, Whether founded on presumption of payment, supposed loss of evidence, or the policy that would suppress litigation and promote repose, they are an express legis- lative offer to a defendant of the means, not to extinguish his debt, but to defeat any action for its recovery. 10 H. 310. The period of limitation within which a personal action may be brought varies according to the subject-matter. The follow- ing are the provisions of the Pennsylvania statutes: All actions upon the case, other than for slander or libel; all actions for account, 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; all actions for trespass, detinue and replevin for goods and cattle, and actions of trespass quare clausum fregit ; shall be brought within six years next after the cause of such actions or suits, and not after. Purd. 655. All actions upon promissory notes shall be commenced within six years after the cause of action shall accrue, and not after. Purd. 656. All actions of trespass, of assault, menace, battery, wounding, imprisonment, or any of them, within two years next after the cause of such actions or suit, and not after. Purd. 655. All actions of slander or libel, for words, whether spoken, written or’ printed, within one year, and not after. Purd. 656. The statutes also provide, that if the parties entitled to such actions, be, at the time the cause of action shall accrue, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond sea, they shall be at liberty to bring the aud actions, within the same period after the removal of such disabilities. Purd, The statute of limitations does not run in favor of a defendant who is beyond sca, at the time the cause of action accrued, but suit must be brought within the time limited after the return of such defendant from beyond sea. Purd. 656. And no plaintiff can take advantage of this exception, except he be a citizen of the United States. Ibid. : It will be observed, that the limitation of six years is the only one that is appli- cable to suits of which a magistrate has jurisdiction; the cases enumerated in the LIMITATION OF ACTIONS, 547 other clauses of the statute are cognisable only in the common pleas, and with them a justice of the peace has no concern. : The limitation in actions of debt “ grounded upon any lending or contract without specialty,” is confined to contracts in fact, and does not extend to a case where the law gives an action of debt, though there be no contract between the parties. 13 8. & RB. 399, 400. As debt on a foreign judgment. 13-8. & R. 395. Debt against a sheriff for an escape. Ibid. 400. Debt on an award. 2.W. & 8. 56. Or ona devastavit. 7 Ibid. 359. It does not embrace a claim for a legacy. 2 W. 161. 5 W. 225. Or for a distributive share of an intestate’s estate. 6 W. 379. Nor toa widow’s claim for interest in one-third of the purchase-money of her husband's real estate, sold by an administrator. 4 W.177. Nor to express, continuing, technical trusts, not cognisable at law. 148. & R. 394. 1 W. 271, 514. 1 W.&8. 118. 4 W.C.C. 631. Thus, a debt against the estate of a decedent is not barred by the statute, where less than six years from the time it accrued had elapsed at the death of the debtor, but the six years expired before the settlement and distribution of the estate. For, in such case, the executor holds the estate as a trustee for the use of the creditors. 5 0. 360. But although he cannot plead the statute in a pro- ceeding in the orphans’ court for distribution, it is nevertheless a bar to a personal action for the recovery of the debt. 7 C. 455. The statute is applicable between guardian and ward, after the latter comes of age. 4 W. & 8.457. To an action against a sheriff for moneys collected on an execution. 9 Barr 120. Or against an attorney from the time his client had notice of the receipt of his money ; or a knowledge of his negligence, or breach of duty. 7 Barr 27. And an action of debt for a penalty due under a by-law, has been, held .to be within the act. 5 Eng. L. & Eq. 309. The limitation in actions of debt for arrearages of rent doés not apply to rent reserved by deed. 1 R. 135. But it is provided by the act of 1855, that where no- payment, claim or demand shall be made on account of or for any ground-rent, annuity or other charge upon real estate for twenty-one years, and nosdeclaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, a release or extinguishment thereof shall be presumed, and such ground-rent, annuity or charge shall thereafter be irrecoverable. Purd. 654. ; The exception of merchants’ accounts applies to actions of assumpsit, as well as actions of account. 1 Phila. R. 181. 5 Cr. 15. And it is not necessary in such case that any of the items should come within the six years. Ibid. To bring a case within this exception, there must be mutual accounts between the parties. 17 8. & R. 347. 2 W. & 8. 187. 7 Barr 881. 5 H. 238. And they must be open, not stated accounts. 2 D. 264. 2 Y¥. 105. 6 W. & S. 238-9. 7 Barr 281. Ac-. counts between merchant and factor are within the exception. 2 Y.105. As to who are deemed merchants within the statute, see 1 W. & 8. 469. 2 Ibid. 139. The cases of what are termed mutual accounts, in which some of the items being within six years are held to save the bar of the statute, seem referable rather to the head of implied acknowledgment, than to the saving clause of merchants’ accounts. 1T. & H. Pr. 409. See 6 T. R. 189. Ballantine on Limitations 80-2. The exception in favor of persons “ beyond sea,” embraces only such as are without the limits of the United States; a residence within another of the United States is not sufficient to entitle a party to the benefits of this proviso. 9 S. & R. 288. 2D. 217. 1 Y. 329. 9 C. 860. The exceptions in the statute in favor of persons under disabilities, apply to actions of assumpsit on promissory notes and bills of exchange. 2 Wh. 102. Although debts secured by instruments under seal are specially exeepted from the operation of the statute of limitations, yet after a lapse of twenty years, a pre- sumption of payment arises, which will bar a recovery, unless repelled by evidence. After the lapse of twenty years, bonds and other specialties, merchants’ accounts, mortgages, judgments, and indeed, all evidences of debt excepted out of the statute, are presumed to be paid; and the computation runs from the period when the money was demandable. 2 W. 214. 1P.R.420. This presumption, however, may be rebutted by proof of a payment on account; of an acknowledgment of the existence of the debt; or of the positive continuing insolvency of the debtor during the whole “ 548 LIMITATION OF ACTIONS.- period that has elapsed from the accruing of the plaintiff’s cause of action. 2 Barr 225, 481. By act of 25th April 1850, the statute of limitations does not run in favor of insolvent corporations. Purd. 656. II. WHEN THE STATUTE OF LIMITATIONS BEGINS TO RUN. The statute of limitations commences running only from the time the right of action accrues. 14 8.& R. 828. 8 Wr. 520. Thus, where the vendor of a house and lot which was subject to a ground-rent, left in the hands of the vendees a portion of the purchase-money, to be applied to the payment of arrears of ground-rent, the vendees agreeing to pay them with it, and above sixteen years afterwards the vendor was sued for such arrears and paid them, whereupon, within one year thereafter, he brought suit against the vendees to recover the same, it was held, that his action was not barred by the statute. 11 H.88. And the statute will not be a bar to a recovery for work and labor done, if the contract under which it was performed was not at an end more than six years before the commencement of the action, although no actual labor was done within the statutory period. 4 C. 316. ; In an action by an attorney for professional services in the collection of a debt, the statute begins to run from the time of its payment. 4 W. 334. In an action against an attorney, from the time of his collection of the client’s money ; or of his negligence or breach of duty. Unless the collection be fraudulently con- cealed. 12 H. 58-4. 2 Gr. 273. And so also, it is when a sheriff collects money ; 9 Barr 120; or defectively executes a writ; 17 Mass. 60; and if he take insuffi- cient bail, the statute runs from the time when the action would have accrued against the bail. 9 Met. 564. So, it runs in favor of officers, generally, from ,the breach of duty complained of; 6 Cow. 238; and in favor of agents, generally, from the collection of money, or breach of duty. 1 W. & 8.112. 12 H. 54. In an action for money lent by a wife to her husband out of her separate estate, the statute commences running from the death of the husband. 15 8S. & R. 84. 3 Wh. 48. For money paid on articles of argeement for the sale of land, from the refusal" of the vendor to convey. 1 P. R. 492. 2 J. 238. And on a contract to complete certain work, from the time it was to have been completed. 8 P. R. 48. Where an overpayment has been made by mistake, and, on a final settlement, the apparent balance is paid, the statute begins to run from the time of such final settlement. 10 Barr 455. On a parol guaranty of a mortgage, payable by instal- ments, from the time the last instalment becomes due. 148. & R. 311. “In case of a continuing trust, from the time some one is entitled to claim its execution. 14 S. & R. 395. And in trover, from the time of conversion. A. 1584. 1 P. RB. 216. , And see 3 R. 381. 3 P. R. 149. The time is not enlarged by a transfer of the claim. 2 R.211. And an agree- ment to extend the period of limitation for’a certain time, will not operate as a waiver of the statute for another period of six years. 5 H. 244. But it is to be observed, that in case of fraud, the statute only runs from the time of its discovery. 4 Y.109. 78. &R. 214, 235. 1 W. 110, 401. 8 W.12. 25.49. 2 Gr. 273. If, after a recovery by the plaintiff, the judgment be arrested, or reversed on error, he may commence anew action, within one year thereafter. Purd. 656. An abate. ment of the first suit, by a plea of non-joinder of a partner, is within the equity of this proviso. 2 Barr 882-5. So, where the suit abates by the death or marriage of the plaintiff. Ibid. 385. And where a joint defendant dies, and the survivor is insolvent, the plaintiff has one year to bring a new.action against the executors of the decedent. 5 W. & S. 339. But if the plaintiff be nonsuited after the expira- re ane six years, the statute will bar another action for the same cause. 1 §. If an act on the part of the creditor, such as demand, or notice, &c., be necessary to complete his-cause of action, such act must be done within six years from the date of the contract, otherwise the plaintiff’s action will be barred by the statute 10 C. 12. Thus, the lapse of six years is a bar to an action by a railroad compan for a subscription to its capital stock, if no call be made within that period. 8 C 22,25. 12 0. 77. | LIMITATION OF ACTIONS. 549 IiI. Wat WILt REMOVE THE BAR OF THE STATUTE. Tn order to take a case out of the purview of the statute of limitations the plain- tiff must show either an acknowledgment of the existence of the debt, or what is equivalent to it, a part payment. An acknowledgment of the claim Within six years has always been held sufficient to take the case out of the statute. 98. & R. 131. 11 Ibid. 18. 14 Ibid. 197. But such acknowledgment must be clear, unam- biguous and express; and so distinct and palpable in its extent and form as to preclude hesitation. 6 W. 220. 9 W. 881. 10 W. 172. 3 W.& 8. 509. 6 W. & 8. 217. 7 W.& 8. 181. 9 Barr 258. 2H. 275. 4 H. 210. It must specifically refer to the instrument on which the claim is founded, and to the amount of indebt- edness. 7 H. 388. 10 H. 308. 11 H. 413. 11 C. 259. It must be the acknow- ledgment of a still existing indebtedness. 12 8. & R. 397. 10 W.172. And it must be made to the plaintiff or his agent. 5 H. 286, 302. An acknowledgment, however, and offer to pay the principal of a debt, coupled with a refusal to pay the accrued interest, is sufficient to take the principal out of the statute. 5 C. 189. An acknowledgment before the limitation expires is sufficient. 5 Barr 225. 9 Barr 259. An acknowledgment by an executor or administrator is not sufficient to remove the bar of the statute. 1 Wh. 66. 7 W. 420. 2 J. 64. 11 C0. 259. 1 Gr. 268. Nor one by the defendant’s attorney. 2 P. R. 262. 1 Phila. R. 220. Nor by one of several joint debtors, or by one of several partners, after the dissolution of the firm. 178. & R. 126. 1 P. R. 138. 2 Am. L. R. 572. A new promise by a joint debtor will affect no one but himself. 1 Gr. 268. An indorsement of part payment proved to have been made before the statute had completed its bar, is sufficient to take the case out of the statute. 1 W. & S. 243. 5 W. & S. 332. 6 Barr 267. The constructive acknowledgment of a debt arising from part payment within six years before suit brought, is sufficient from which to infer a promise to pay. But to have this effect the part payment must be clearly established. 2 C. 285. And part payment by a liquidating partner is evidence of a new promise by his late copartners. 3 W. & S. 345. 17 Leg. Int. 388. But part payment by one of several joint debtors, not partners at the time, will not take the case out of the statute. 10 H. 156. A direction in a will that all the testator’s just debts be paid, will not revive a debt barred by the statute of limitations. 1 B. 209. Or stop the running of it. 1 Phila. R. 463. Nor will a statement of the debt in a petition for the benefit of the insolvent laws have that effect. 10 Barr 129. 2M. 424. 1 Wh. 106. It seems, that it is proper, in all cases, to sue dn the original contract, and not on the subsequent acknowledgment as a new promise. Such acknowledgment is but a waiver of the statutory defence. 10 H. 310. To save the bar of the statute, the - plaintiff may reply a writ issued within six years; but he must show that it has been continued down to the time of hearing. 6 W. 529. And it is sufficient if the alias be issued within six years after the original. 3 H. 293. 4 C. 261. IV. LIMITATION OF PENAL ACTIONS. The act 26 March 1785 provides that ‘All 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 hereafter be brought within two years after the offence was committed, and at no time afterwards; and all actions, suits, bills or informa- tions, which shall be brought for 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 offence was committed ; and in default of such pursuit, then the same shall be brought for the commonwealth, at any time within one year after that year ended; and if any action, suit, bill, indictment or informa- tion 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.” Purd. 657. . 550 LIMITATION OF ACTIONS. By the act 21 April 1841, (Purd. 657,) the provisions of this section are extended to actions for the penalty for issuing small notes. By act 16 July 1842, (Purd. 657,) it is extended to actions for all 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 24 February 1845, (Purd. 657,) to all fines and forfeitures, payable either in whole or in part, to the use of the respective counties. The.twenty per cent. interest, imposed as a penalty for the issuing of notes of a less denomination than five dollars, by the act 12 April 1828 is not a forfeiture within the meaning of the act of 1785; nor are the damages on protested bills of exchange. 2 H. 86-7. But see 7 Leg. Int. 150, as to the effect of the act of 1841. The act of 1785 is a defence to all penalties under the 47th section of the act 16 April 1850, relating to banks, which accrued more than two years before suit brought. 2 C. 451. Y. LIMITATION OF CRIMINAL PROSECUTIONS. The 76th section of the revised Code of Criminal Procedure, passed the 31st March 1861, enacts that “ All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor, murder and voluntary manslaughter ex- cepted, shall be brought or exhibited within the time and limitation hereafter expressed, and not after; that is to say, all indictments and prosecutions for trea- son, arson, sodomy, buggery, robbery, burglary, perjury, counterfeiting, forgery, uttering or publishing any bank note, check or draft, knowing the same to be counterfeited or forged, shall be brought or exhibited within five years next after the offence shall have been committed; and all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed: Provided how- ever, That if the person against whom such indictment shall be brought or exhi- " bited, shall not have been an inhabitant of this state, or usual resident therein,” during the said respective terms for which he shall be subject and liable to prose- cution as aforesaid, then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an inhabitant of, or usually resident within this state: And provided also, That indictments for misdemeanors committed by any officer of a bank or other cor- poration, may be commenced and prosecuted at any time within six years from the time the alleged offence shall have been committed.” Purd. 658. By the 80th section of this act it is expressly provided that this limitation shall apply to offences committed before its passage." The limitation need not be specially pleaded; it may be taken advantage of on the general issue. 4 0. 259. See 3 Cranch C. O. 442. 5 Ibid. 38, 60, 368. The finding of an informal presentment, is not sufficient to take the case out of the statute. 1 Cranch C. C. 485. Nor will a former indictment in which a nol prosequt was entered. 3 McLean 469. [ 551 J Lotteries. 1. Provisions of the Penal Code. IL. Judicial decisions. I. Act 31 Marcu 1860. Purd. 227. Sect. 52. All lotteries, whether public or private, for moneys, goods, wares or merchandise, chattels, lands, tenements, hereditaments or other matters or things whatsoever, are hereby declared to be common nuisances; and every grant, bargain, sale, conveyance or transfer of any goods or chattels, lands, tenements or heredita- ments which shall be made in pursuance of any such lottery, is hereby declared to be invalid and void. Sect. 58. If any person shall, within this state, either publicly or privately, erect, set up, open, make or draw any such lottery as aforesaid, or be in any way concerned in the managing, conducting or carrying on the same, he shall be guilty ° of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding one year. : Sxcr. 54. If any person shall sell or expose to sale, or cause to be sold or exposed to sale, or shall barter or exchange, or cause or offer to be bartered or exchanged, or shall advertise, or cause to be advertised for sale, barter or exchange, any lottery ticket or share, or part thereof, or any lottery policy, or any writing, certificate, bill, token or other device, purporting or intending to entitle, or represented as entitling the holder or bearer, or any other person, to any prize to be drawn in any lottery, or any part of such prize, or any interest therein, such person shall be guilty of a misdemeanor, and, on conviction, be sentenced to an imprisonment, by separate or solitary confinement at labor, not exceeding two years, and to pay a fine not exceed- ing one thousand dollars. The purchaser of such ticket, policy or device, shall not be liable to any prosecution or penalty by virtue of this or any other law of the commonwealth, and shall, in all respects, be a competent witness to prove the offence. Any indictment under this act shall be deemed and adjudged good and sufficient, which describes the offence in the words of this law, although it does not set out the name or location of such lottery, nor set out in words and figures, the ticket, policy or device sold, bartered or exchanged, or offered or advertised to be sold, bartered or exchanged. II. 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 8S. & R.151. ; So also, an annual distribution, by lot, among the members of an art-union, of works of art purchased by their subscriptions, is a lottery. 3 Seld. 228. 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 com- mon counts for goods sold and delivered. 2 Wh. 155. But a contract of purchase of a prize lottery ticket, the sale of which was pro- hibited by law, cannot be enforced by action, nor will the purchaser be entitled ta recover in an action for money had and received, upon proof that the seller of the ticket received the amount of the nrize-money. 1 W. & S. 181. It is otherwise, where the ticket was purchased in another state, whose laws legalized the sale. 1 H. 328. A witness may be compelled to answer whether he has purchased lottery tickets from the defendant. Bright. R. 109, [ 552 J Malicious Mischief. I. Malicious mischief at common law. IV. Warrant for removing a landmark. II. Provisions of the Penal Code. V. Malicious trespasses. III. Warrant for destroying a sign. I. Maxicrovs mischief, in this country, as 2 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 injary, 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 ; or 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 breakup 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. Whart. C. L. § 2002. II. Aor 31 Marca 1860. Purd. 241. Scr. 142. If any person shall wilfully and maliciously put, place, cast or throw upon or across any railroad, any wood, stone or other matter or thing; or shall wil- fully and maliciously take up, remove or displace any rail, sleeper or other matter or thing belonging to any railroad; or shall wilfully and maliciously turn, move or divert any switch or other machinery belonging to any railroad; or shall wilfully and maliciously make or show, hide or remove any signal or light upon or near any railroad ; or shall wilfully and maliciously do, or cause to be done, any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure or destroy any tender, carriage, car or truck used on such railroad, or to endanger the safety of any person travelling or being upon such railroad; every such offender shall be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine not exceeding ten thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. Sxcr. 143. If any person shall wilfully and maliciously cast, throw or cause to fall or strike against, into or upon any engine, tender, carriage, car or truck used upon any railroad, any wood or stone, or other matter or thing, with intent to endanger the safety of any person being in or upon such engine, tender, carriage, car or truck, every such offender shall be guilty of misdemeanor, and being thereof convicted, shall be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding three years. Sor. 144. If any person shall wilfully and maliciously break, throw down, level or destroy the whole or any part of any lock, sluice, flood-gate, bank, waste-wier, dam, aqueduct, culvert, bridge, feeder, guard-wall, towing-path or berme-bank belonging to any artificial navigation, or stop up or obstruct any such feeder, waste- wier, aqueduct or culve.c, such person shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one hundred dollars, and undergo ‘an imprisonment, by separate or solitary confinement, or by simple imprisonment at labor, not exceeding three years. Sxcr. 145. If any person shall wantonly open or shut, or cause to be opened or shut, any lock or safety-gate, or any wicket, paddle or culvert gate, or any waste feeder or sluice gate, or drive any nails, spikes, pins or wedges into any such gate or fixtures thereof, or shall take any other means to prevent the perfect and free use of the same, or shall wantonly and malicicusly break, throw down or destroy any fence, wall or timber work on any canal, pool, feeder or other part of any arti- ficial navigation; or if any person shall wilfully obstruct the navigation of any canal MALICIOUS MISCHIEF. 558 or pool, by throwing into the same, or sinking to the bottom thereof, any vessel, timber, stone, earth or other thing, or by placing anything whatever upon any tow- ing-paths; such person shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one hundred dollars, and undergo an imprison- ment not exceeding three calendar months. i Sor. 146. If any person shall unlawfully and‘ maliciously break down or cut down the bank or wall of any river, canal or marsh, whereby any land shall be overflowed or damaged, or be in danger thereof, such person shall be guilty of a misdemeanor, and being thereof convicted, be sentenced to pay a fine not exceeding _ one hundred dollars, and to undergo an imprisonment not exceeding one year. Szor. 147. If any person shall unlawfully and maliciously break, injure or other- wise destroy or damage any part of any locomotive or stationary engine, inclined plane, engine-house, station or depot, bridge, culvert, trussel work or other building or structure belonging to any railroad, or any other part of such railroad; ‘or shall wantonly and maliciously derange or displace the fixtures or machinery of any. loco- motive or stationary engine used or employed on any railroad; or shall wilfully and maliciously destroy or injure any fence or wall, cross road passing over or under such railroad ; or shall unlawfully and maliciously break, injure or otherwise destroy or damage any of the posts, wires or other materials or fixtures employed in the construction and use in any line of an electrical telegraph, or shall wilfully and maliciously interfere with such structure so erected, or in any way attempt to lead from its uses or make use of the electrical current, or any portion thereof, properly belonging to and in use, or in readiness to be made use of, for the purpose of com- municating telegraphically from one station of a telegraph company to another established station of the same, or a connecting telegraph line; or shall unlawfully and maliciously break, injure or otherwise destroy or damage any bridge, river or meadow bank or mill-dam; or wilfully and maliciously take down, injure, remove or in any manner damage or destroy any flag, flag-staff, beacon, buoy or other way or water marks, which now are or hereafter may be put, erected or placed, by law- ful authority, near or in any streams that are or may be declared public highways; or shall unlawfully and maliciously cut, break or otherwise destroy any lead, tin, copper or iron spout affixed to any house or other building, public or private; or shall unlawfully and maliciously daub, paint or otherwise deface any dwelling-house, such offender shall be guilty of a misdemeanor, and, upon conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding twelve months, or both, or either, at the discretion of the court. Scr. 148. If any person shall wilfully and maliciously break, injure or destroy any window or door belonging to any dwelling-house or out-house, parcel thereof; or shall unlawfully and maliciously break or take off from the door any knocker or bell- pull, or plate inscribed with the name of the occupant or number of the house; or shall wilfully and maliciously destroy, take down, injure or deface any sign, put up by an inhabitant to denote the place of his abode, occupation, bysiness or employ- ment, such person shall be guilty of-a misdemeanor, and, upon conviction, shall be sentenced to pay a fine not exceeding one hundred dollars, or suffer an imprisonment not exceeding six months, or hoth, or either, at the discretion of the court. Sect. 149. If any person shall wilfully and maliciously break down any tree or shrub growing on the public grounds as inclosed on capitol hill, or otherwise injure or destroy the same, or shall break or destroy the fence around such inclosure, or any part thereof, or shall maliciously and wilfully injure any part of the public grounds, or the building belonging to the state; or if any person shall wilfully or maliciously injure or destroy any fruit or ornamental trees, shrub, plant or grape- vines growing or cultivated in any orchard, garden or close, or upon any public street or square in this commonwealth; he shall be guilty of a misdemeanor, and, on conviction, be fined not exceeding one hundred dollars, and undergo an impris- onment not exceeding six months, or both, or either, at the discretion of the court, Srcr. 150. If any person shall unlawfully and maliciously cause any water to be conveyed into any mine, or into any subterraneous passage communicating there- with, with intent thereby to destroy or damage such mine, or to hinder or delay the working thereof, or shall, with the like intent, unlawfully and maliciously pull down, fill up or obstruct any airway, waterway, drain, pit, level or shaft of or belong- 554 MALICIOUS MISCHIEF. ing to any mine, such offender, his aiders and abettors, shall, on conviction thereof, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an im- prisonment not exceeding two years. a « Sxcr. 151. If any person shall wilfully and maliciously cut, injure or destroy, or deface any hose or engine, or any apparatus appertaining to the same, belonging to any fire engine or hose company, he shall be guilty of a misdemeanor, and, on con- viction, be sentenced to pay a fine not: exceeding five hundred dollars, and to undergo ani imprisonment, by separate or solitary confinement at labor, not exceeding three ears. : Sxcr. 152. If any person shall cut down or fell any timber tree or trees, know- ing the same to be growing or standing upon the lands of another person, without the consent of the owner; or if any person shall purchase or receive any timber tree or trees, knowing the same to have been cut or removed from the lands of another, without the consent of the owner thereof; or who shall purchase or receive any planks, boards, staves, shingles or other lumber, made from such timber tree or trees, so as aforesaid cut or removed, knowing the same to have been so made; the person so offending shall be guilty of a misdemeanor, and, being thereof con- victed, shall be sentenced to pay such fine, not exceeding one thousand dollars, or to such imprisonment, not exceeding one year, as the court, in their discretion, may. think proper to impose. : Secr. 153. If any person shall knowingly and maliciously cut, fell, alter or remove any certain bounded tree, or other allowed landmark, to the wrong of his neighbor or any other person, he shall be guilty of a misdemeanor, and, on convic- tion, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment not exceeding one year. Sxcr. 154. Every person who shall wilfully and maliciously kill, maim or disfigure any horses, cattle or other domestic animals of another person, or shall wilfully and maliciously administer poison to any such beasts, or expose any poisonous substance, with intent that the same should be taken or swallowed by them, shall be guilty of a misdemeanor, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. Secor. 155. If any person shall unlawfully and maliciously destroy or damage anything kept for the purpose of art, science or literature, or as an object of curiosity, in any museum, gallery, cabinet, library or other repository, which museum, gallery, cabinet, library or other repository, is either at all times, or from time to time, open for the admission of the public, or any considerable number of persons to view the same, either by the permission of the proprietor thereof or by payment of money for entering the same; or any picture, statue, monument or painted glass in any church, meeting-house or other place of religious worship, or any statue or monument exposed to public view; such person shall be guilty of a misdemeanor, and, being convicted thereof, shall be sentenced to pay a fine not exeedne five hundred dollars, and to undergo an imorisonment not exceeding six months. III. WarRant FOR DESTROYING A SIGN. CITY OF PITTSBURGH, ss. The Commonwealth of Pennsylvania, 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 8th of May 1860, 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, con- trary 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 your warrant. Witness the said J. R. at Pittsburgh, who hath hereunto set his hand and seal, the ninth day of May 1860. : J.R., Alderman. [szat.] MALICIOUS MISCHIEF. b55 IV. WARRANT FOR REMOVING A LANDMARK. DAUPHIN COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S—, in the County of Dauphin, greeting: Wuereas J. L., of the township of S——., in the county of Dauphin, 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 tree, [or ‘did remove a certain heap of stones,” as the case may be,] being an allowed landmark between 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. forth- with, to answer the complaint. Witness the said J. P. at S—— township aforesaid, the sixth day of July, in the year of our Lord one thousand eight hundred and sixty. J. P., Justice of the Peace. remit) V. Act 30 Marcu 1860. Purd. 687. Scr. 1. The wilful taking and carrying away of fruit, vegetables, plants, fruits or ornamental trees, vines or shrubs, in the counties.of Huntingdon, Washington, Allegheny, Berks, Lancaster, Lycoming and Delaware, whether attached to the soil or not, shall be deemed, and the same is hereby declared, a misdemeanor, and may be prosecuted and punished as such, under the laws of this commonwealth, and, on conviction thereof, in the court of quarter sessions of said county, shall be fined, not exceeding fifty dollars, and imprisoned, not exceeding sixty days; such fine or penalty to be appropriated as provided in the second section of this act. Szct. 2. Any person or persons who shall wilfully enter or break down, through or over any orchard, garden or yard-fence, hot-bed or green-house; or who shall wrongfully club, stone, cut, break, bark or otherwise mutilate or damage any nut, fruit or ornamental tree, shrub, bush, plant or vine, trellis, arbor, hot-bed, hot or green-house, or who shall wilfully trespass upon, walk over, beat down, trample or in anywise injure any grain, grass, vines, vegetables or other growing crop; shall and may, on conviction thereof before any alderman or justice of the peace, or in any court of law in said counties, have judgment against him, her or them, in a sum not less than five, nor more than one hundred dollars, with costs of suit; one half the damage or penalty to go to the use of the informer, the other half of the damage or penalty to the occupant or owner of the premises on which the said trespass shall or may be committed ; and in default of payment of said fine or judg- ment, with costs of suit, the party convicted may and shall be committed to the jail of said county, for not less than twenty, nor more than sixty days; said complaint or action to be in the name of the commonwealth, and the testimony of the owner or occupant of the premises shall be admitted as evidence to prove the trespass and damage sustained: Provided, That when the owner of the premises shall become the informant, then one-half of the penalty shall be appropriated to the school fund of the district in which the trespass was committed. . Norr.—This act was extended throughout the commonwealth, by act 17 April 1861. . L. 332, ® Act 1 May 1861. Purd. 687. Szct. 2. The provisions of the first section of said act(a) are hereby extended for the protection of graperies, statuary, vases, fountains and all other useful and ornamental erections in public and ‘private gardens, yards, grounds, parks, streets and squares, the wilful trespass upon, or injury to which is hereby declared a mis- demeanor, which may be prosecuted and punished as such, as directed for the prosecution and punishment of the offences named in said act: Provided, That the second section of this act shall not apply to the county of Beaver. (a) The 1st section of this act extends the ignorance of the fact that the act of 1860 had provisions of the act 830 March 1860 to various been already extended throughout the state, counties; having been passed apparently in by act 17 April 1861. [ 556 J Malicious Prosecution. 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. 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 party aggrieved to an action for a malicious prose- cution. 1 Peters’ C. CO. 210. 1 P. R. 282. sek 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 circum- stances. 48. & R. 19-23. 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. 21. 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 probable cause must be combined with malice. 8 W. 240. 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 person accused is guilty of the offence with which he is charged. 2 H. 369. 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, is 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. 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 defendants belief of his guilt. or innocence. 5 W. & S. 488. If the prosecution, though without probable cause, was instituted under an error of judgment, and without malice, the action cannot be sustained. Bright. R. 494. And if the party had probable cause, it fully justifies him, however malicious his motives may have been. 4 W. & 8. 517. 1 Barr 234. If two or more persons conspire to prosecute an innocent man, upon a criminal charge, it becomes an offence against the Penal Code, punishable with fine and im- prisonment. Purd. 238. And although the conspirators may succeed in procuring the conviction of the accused, before a competent tribunal, this but aggravates the offence, and is no bar to an indictment against those who by such combination have procured the conviction. The judgment of a court obtained by corrupt testimony, may be controverted in a proceeding against those who have been guilty of a fraudulent combination to produce it. 2 P. 867. Fost. Cr. L. 180-1. To bring a civil action, though groundless, is not actionable; 1 Pet. ©. C. 210; but if one abuse the process of the law, as by maliciously holding to bail, an action lies: so, wantonly to levy a second execution, after a former levy, or for a larger sum than is due, or after thé debt has been paid, have been held actionable ; for all these are illegal, and damage is thereby sustained. 10 W. 118. 48. & R. 19. 12 H. 212. 6 C. 69. The fact that the prosecutor acted under the advice of counsel, is sufficient proof of probable cause, unless it be shown that he made the resort to counsel a merer cloak for his-malice. 9 C. 501. For causing a person to be arrested on a criminal warrant, charging an act which is not a crime, the proper remedy is an action of trespass; for such arrest is not an abuse of lawful process; it is an act committed under a void and irregular writ, every step of which is unlawful. 6 C. 344. And all concerned in such arrest are, in law, trespassers. 8 CO. 169. , [ 557] Markets. [See ADULTERATION AND SALE OF UNWHOLESOME PROVISIONS. ] I. Statutes. II. Judicial decisions. I. Acr 18 Marcu 1775. Purd. 696 Ssor. 8. 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, the 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-third 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 but- ter 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. Norr.—It may be 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 seizablé, 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 made. Act 7 May 1855. Purd. 697. Sect. 1. It shall not be lawful for any butcher or other person to expose for sale any tainted or unwholesome meat or fish, or any veal less than three weeks old when killed, in any of the market-houses or other places for vending meat in any of the cities or boroughs in the several counties of this commonwealth, under a penalty of ten dollars for each offence, to be recovered as other penalties are recover- able, before any alderman or justice of the peace, one-half of said penalty to go to the informer, and the other half for the benefit of the poor: all laws inconsistent with the above are hereby repealed. Norz.—This act is not entirely ae by the 69th section of the revised Penal Code, for which see tit. “‘ Adulteration and Sale of Unwholesome Provisions.” If. Every municipal corporation which has power to make by-laws and establish ordinances to promote the general welfare and preserve the peace of a town. or.city, may fix the times and places of holding public markets for the sale of food, and make such other regulations concerning them, as may conduce to the public interest. 9 C. 202. A market, when established, may imply a license to any one to enter as a buyer, but not necessarily as a seller. 1 Phila. R. 338. There is no market overt in Pennsylvania, and the owner of goods, horses, &c., stolen from him, or obtained by fraud, may recover on replevin, the value of the horse or other chattel stolen, as it was at the time it came to the defendant's pos- session. 2 Y. 347. 1 Y. 478. [ 558 J Marriage. I. Acts of assembly. III. A marriage ceremony and certifi- II. Judicial decisions on the subject of cate. marriage and its effects. I. Aor or 1701. Purd. 697. Scr. 1. 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 live, 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 the said publication, witnessing the time of such declaration; and date of the said publication, so to be affixed as aforesaid. And all marriages shall be solemnized by taking each other for husband and wife, before twelve sufficient 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 married, without consent of his or her master or mistress, such servant or servants shall, for such their offence, each of them serve their respective masters or mistresses one whole year after their time of servitude by indenture 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 service; and the servant so being married, shall abide with his or her master or mistress, according to indenture or agteement, and one year after, as aforesaid. And if any person shall 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 governor; 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. Scr. 2. Provided, that this law shall not extend to any who shall marry or be married in the religious 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. Szcr. 3. No license or dispensation shall hinder or obstruct the force or operation of this act, in respect of notice to be given to parents, masters, mistresses, or guard- ians, as aforesaid. Aot 14 Fepruary 1729-80. Purd. 698. Sect. 1. No justice of the peace shall subscribe his name to the publication 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 dwells, 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 under the age of twenty-one years, or under the tuition of their parents, or be in- dented servants, if such parent, guardian, master or mistress, live within this pro- vince, 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 MARRIAGE. 559 person‘or persons making or eausing to be made such publication, shall have received such certificate 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. Srcr. 2. If any justice of the peace, clergyman, minister or other perscn, 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 publication 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 made, 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 of the peace, cler- gyman, minister or other person so offending, shall for every such offence 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. Sect. 3. Provided, that nothing herein contained shall be deemed to ex- tend 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 mistresses, 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 solemnized; nor that this law shall extend to any person marry- ing by the authority of any lawful license, so as such consent or approbation, in writing, of the parent or parents, guardian or guardians, masters or mistresses, as by this act is directed, be first had, and the same consent be certified in the body of the said license. Act 10 Apri 1849. Purd. 699. Szot. 2. 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 marriage contract solemnized by or in the presence of such minister of the gospel, judge, alderman or justice of the peace, shall, on application 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 the 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. * - Acr 8 May 1854. Purd. 699. Srcr. 4. Any judge, justice or clergyman who shall perform the marriage cere- mony between parties when either of said parties is intoxicated shall be deemed guilty of a misdemeanor, and upon a conviction thereof shall pay a fine of fifty dol- lars, and be imprisoned at the discretion of the court not exceeding sixty days. Act 14 May 1857. Purd. 699. Sxcr. 1. In any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents.(a) . II. Marriage is a civil contract, which may be entered into before any witnesses, aud for which there is no particular form of ceremony required by law; neither need it be performed before a clergyman or a magistrate. 6 B. 405. 2 W.9. 4 Comst. 230. (a) By act of 21st April 1857, this act is to apply to prior cases of marriage; but no estate is to be thereby divested. Purd. 699. 560 MARRIAGE. The validity of a marriage is to be determined by the law of the place wheré it was celebrated ; if valid there, it is valid anywhere. 10 W. 158. : For civil purposes, cohabitation and reputation are sufficient evidence of marriage. 1P.R. 450. 5 P.L. J. 1. 110. 157. See 4 Comat. 280. 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 publica- tion of banns, are only directory; and a non-compliance with them does not invali- date a marriage. 2 W. 9. . ‘The consent of the parties to the alleged marriage is to be determined by what took place at the time of its celebration; it is not affected by a secret reservation of one of them. 11 C. 13. An apprentice is not an indented servant within the meaning of the act of 1701. 3 R. 305. In an action against a clergyman or justice to recover the penalty given by the act of 1729-80, the previous assent of the parent may’be proved, to show that the marriage was not clandestine. 2 W.9. 10 W. 82. 5 R. 211. But not his subse- quent indications of satisfaction with it. A. 192. 10 W. 82. A surviving mother is a parent within the meaning of the act. 1 Barr 431. And so is the putative father of an illegitimate child. A. 212. The parent is entitled to sue, though the child be apprenticed to another. 3 R. 305. But not a father who has relinquished his parental control over the child, and turned it upon the world to shift for itself. 7 W. & S. 362. It is no defence, however, to such an action, that the father, by reason of moral degradation, was unfit to take care of his minor child. 10 C. 325. It is no defence that the justice or clergyman misconceived the age of the person married. 5 R. 124. No penalty is recoverable for marrying the minor daughter of a citizen of another Dae et resident within this commonwealth, without the consent of her parent. 2 . 205. It is the joining in marriage without publication, to which the penalty is attached, and not the doing so without a certificate of consent. A. 346. And the burden of proving that there was no publication of banns lies on the plaintiff. 5 R. 209. In such an action, the jury can give neither more nor less than the exact penalty of £50 or $133.834. A. 214. Nor is the tender of any less sum a sufficient amends. 3 W. 317. 4B. 25. But, it seems, the party may waive the penalty and sue for damages under the act of 1701. 14S. & R. 289. There can be but one penalty recovered; and if the parent of one party has already recovered, no action can be maintained by the parent of the other party. 14 8. & R. 287. But a collusive recovery in the first action is not a defence. Burns v. Bryan, Pittsburgh Leg. J., 16 December 1854. In such action, no actual damage need be proved. 5 R..209. It is sufficient, that the marriage is an unjustifiable interference with the relation existing between the parent and his offspring. Ibid. 124. _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 B. 236. The husband is not liable on a negotiable note given by his wife, even in a suit by a bond fide indorsee, unless it were given with his authority or approbation, and that must be shown before such note is admissible in evidence against the husband. 5 W.&S. 164. 3 H. 185. 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 refuse to receive her, and have furnished no means for her subsistence. 7 8. & R. 247. Tf a man cohabit with a woman, to whom he is not married, and permit her to assume his name, and appear, to the world, as his wife, and in that character te contract debts for necessaries, he will become liable, although the creditor be acquainted with her real situation; for here a like assent will be implied, as in the case of husband and wife. Selw. N. P. 296. If a man marry a woman having children by a former husband, he is not bound by the act of marriage, to maintain such children; but if he hold them out to the MARRIAGE, 561 world as part of his family, he will be considered as standing in loco parentis, Bs the place of a parent,} and liable, even on a contract made by his wife, during his ee abroad, for the maintenance of such children. Selw. N. P. 296. 3 Comst. 12. When is a wife excused for criminal misconduct? In some cases the command 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 offence against the laws of society by the coercion of her husband, or even in his company; which the law construes a coercion, she is not guilty of any crime: being considered as acting’ by compulsion and not of her own will. 1 Hawk. P. OC. 3. Whart. C. L. § 71. 1 Eng. L. & Eq. 549. The husband, however, must be present when the offence is committed, or the ‘ presumption of coercion by him does not arise. R. & R. C. C. 270. The wife is not treated as an accessory 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. Hale’s P. C. 44. Whart. C. L. § 80. The law seems to protect the wife in all felonies committed by her in company with her husband, except murder and manslaughter. Hale’s P. O. 47. 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. 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 coercion of her husband, she is responsible for her offence, as much as any jeme sole. 4 Bl. Com. 29, 30. TIE. MARRIAGE CEREMONY. The magistrate, addressing the persons assembled, shall say :— Ws 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 honorable 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 persons present come now to be joined; if any one can show just cause why they may not be lawfully joined together, let him now speak, or else, hereafter, for ever hold his peace. The magistrate shall then address himself to the man, and say: A. B., wilt thou have this woman to be thy wedded wife, to live together after God’s ordinance in the holy estate of matrimony ? wilt thou love her, comfort her, and keep her in sickness and in health, and forsaking all others, keep thee only unto her so long as ye both shall live? : rare By. 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? The 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 wite 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 the presence of God and before this' company. A MARRIAGE CERTIFICATE, By authority of the Commonwealth of Pennsylvania, Tuts 1s To cerTiFy, That, on the [tenth] day of [June,] in the year of our Lord one thousand eight hundred and [sixty,] before me, D. C., one of the aldermen in and for the city of Philadelphia, [George Goodfellow, of the city of Philadelphia, and Mary Johnson, of eae New Jersey,] having plighted the solemn vows of duty and affection, were by ° 562 MARRIED WOMEN. me legally joined in marriage, each of them declaring themselves of full age, and oS respectively, from any prior engagement, or other lawful impediment; whereupon I, oe said alderman, have declared, and by these presents do declare, them to be man and wife, according to the constitution and laws of the commonwealth of Pennsylvania. 1 In witness whereof, I, the said alderman, have subscribed my name and affixed my seal, the day and year above mentioned, P.C., Alderman. [L.s. Married omen, I. Acts relating to the rights of married women. II. Judicial decisions and authorities. I. Acr 11 Aprin 1848. Purd. 699. Srcr. 6. 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 property ; 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 incumbered 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:(@) 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 from 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. Sxor. 7. 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 before or during coverture: Provided, That said last will and testament be exe- cuted in the presence of two or more witnesses, neither of whom shall be her husband. Sxcr. 8. In all cases where debts may be contracted for necessaries for the sup- port 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 (a) The act of 9th April 1849, (Purd. 822, enacts,—that all deeds made by marrie women since the act of 1848, and all deeds thereafter to be made by them, shall be valid, if acknowledged according to the laws pre- viously in force; that all deeds made by married women out of the 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, before any minister, ambassador, charge @ affaires, consul or vice-consul of the United States. The first of these provisions is re- enacted by act 11th April 1856. Purd. 328, And by act of 25th April 1850, (Purd. 828, ) the deeds, &c., of married women made in any other of the United States, may be acknow- ledged before any judge of any court of record. MARRIED WOMEN. 563 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 articles necessary for the support of the family of the said husband and wife. Act 22 Aprin 1850. Purd. 700. - Sxcr. 20. 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 25 Aprit 1850. Purd. 701. Sror. 39. 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 property, 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. Act 11 Aprin 1856. Purd. 702. Srct. 3. Whensoever any husband shall have deserted or separated himself from his wife, or neglected or refused to support her, or she shall have been divorced from his bed and board, it shall be lawful for her to protect her reputation by an action for slander or libel; and she shall also have the right by action to recover her separate earnings or property : Provided, That if her husband be the defendant, the action shall be in the name of a next friend. re II. The act of 1848 enables a married woman to hold property, not as a feme sole. but as if it were settled to her use as a feme covert. 9 C.525. Ibid. 118. 12 Ibid. 410. The earlier cases of Cummings’ Appeal, 1 J. 272, and Goodyear v. Rum- baugh, 1 H. 480, in which a different construction was given to the act, are no longer recognised as authority in the courts of Pennsylvania. The fact that real estate was paid for with the wife’s earnings or savings does not give her a separate estate in the property, under this act; the husband is entitled in his own right to the earnings of his wife during coverture. 8 H. 308. Nor can she acquire and hold property against the créditors of her husband by carrying on a mercantile business in her own name, with capital loaned to her for that purpose; the husband is the owner of goods thus purchased, as he is also of the proceeds of the joint skill and labor of himself and wife. 11 C. 375. 3 Wr. 129. But a friend of the family (the husband being insolvent) may furnish money to the wife, in trust, to be employed in business for the benefit of the family, the hus- band acting as agent, without exposing the property to the creditors of the husband. 1 Wr. 247. And if the goods of a debtor be sold by the sheriff, and the pur- chager make a gift of them to the debtor’s wife, she may sell them and invest the proceeds in other goods, and hold the same against her husband’s creditors. 19 Leg. Int. 204. The distinction appears to be, that she can acquire property by gift, but not by loan, or by a credit ; for the law makes the husband responsible for these, if ‘assented to by him, by virtue of the marital relation. The act protects the wife’s interest in her separate property, both as to title and possession; when she and her husband are in possession, a purchaser at sheriff’s sale of the husband’s interest cannot recover possession in an action of ejectment against him. 9 H. 402. The act does not require that the use and possession of the property of the wife should be exclusive of the husband. 5 C0. 43. 10 H. 381. 12 C. 383. Ibid. 410. Nor does it protect the wife’s chattels from a distress for rent. 2 Wr. 344. : Where property is claimed by a married woman as against the creditors of her 564 MARRIED WOMEN. husband, she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest or purchase; in case of a purchase after marriage the burden is upon her to prove distinctly that she paid for it with funds which were not furnished by her husband. 6 H. 366. 12 0. 410. 1 Wr. 156, 247, 433. 2 Wr. 277. 19 Leg. Int. 188. In the absence of such proof, the presumption is a violent one that her husband furnished the means of payment. And this rule applies as well to purchases of real as of personal property. 9 H. 349. 5 C. 518. 7 Ibid. 328. 11 ebid. 261. But the rule has no application in an action against a mere trespasser, 10 H. 381. The provision for a separate acknowledgment of consent before a judge, orily applies to cases where the husband, by the wife’s authority, undertakes to transfer or incumber her estate; it makes no change in the form of acknowledgment where both join in the deed. 12 H. 253. 10.142. A wife may bind her separate estate for her husband’s debt, but-she cannot bind it to pay the expenses of collecting it. 1 Gr. 402. She may, in this mode, assign her interest in her deceased father’s residuary estate, to secure the debts of her husband. 12 C. 131. The act does not empower her to convey her real estate by a deed in which her husband has not joined. 6 H. 506. 7 H. 361. 1. 326. Or to execute an obb- gation for the payment of money, or the performance of any other act. 6 H. 82. 8 C. 85. Or to enter into a valid recognisance as bail for her husband. 3 Am. L. J. 138. But in a mortgage of her separate estate for the debt of her husband, she may waive the limitation given by the act of 1705, and covenant that a writ of scire facias may immediately issue on default of payment of the mortgage debt. 12 H. 18. 10. 82. 4 Wr. 140. ' The last proviso of the 6th section of the act of 1848, refers to debts contracted by the wife before marriage, from liability for which the husband is exempted by the preceding proviso. 8 C. 85. 9 ©. 529. It does not confer upon her a new power to contract debts, with the privilege of being sued for them. Ibid. It seems she is empowered to contract debts for the improvement of her separate estate. 12 H. 80. 8 C. 482. 11 0.384. But her bond given for such a debt is void. 8 C. 85. And she is not liable for a debt contracted for the avowed purpose of improv- ing her separate estate, unless it be shown that the money was actually applied to that object. Ibid. 482. In an action against husband and wife, brought with a view of charging the wife’s separate estate, the plaintiff must set forth in his pleadings such facts as bring the ease within some one of the exceptions contained in this act; otherwise the plea of coverture is a good defence for the wife. 11 C. 384. 1 Wr. 251. An attachment execution is an alias execution within the meaning of the act, ane requires to support it a previous execution against the husband. 1 Phila. R. The plaintiff in an action against husband and wife, for a debt contracted for necessaries, must aver and prove, not only that the debt was incurred for necessaries for the support and mainterance of the family, but that it was contracted by herself. 11 C. 384. 1 Wr. 251. The same point was ruled in Texas, under the statute of that state. 23 Texas 180. An action cannot be sustained against a married woman for necessaries furnished to her before the passage of the act. 1 Phila. R. 39. What are family necessaries, is a question for the jury, under the circumstances of the particular case. 1 Wr. DY eae undoubtedly includes the board and education of her children. 18 Leg. nt. 197. ; Prior to the passage of the act of 1850, it had been determined that, under the act of 1848, an action to recover the separate property of a married woman, or for injuries done to it, might be brought in the joint names of husband and wife, or that she might sue in her own name without joining her husband, as circumstances might require. 1 H. 480. 4 Ibid. 184. A married woman can neither sue nor be sued on her contract made during covertuyé; but in actions by or against her, on her antenuptial contract, she is to be joined/with her husband. 1 Gr. 21. 5(. 465. So, in an action against the executors of 9/ married woman, for necessaries furnished in her lifetime, the surviving husband ust be joined. 9 Pittsburgh Leg. J. 355. MASTER AND SERVANT. 565 Neither the act of 1848, nor any of its supplements, empowers her, by her next friend, to maintain an action of debt against her husband, on a contract made during coverture. 7 C. 396. (Where a joint action is brought against husband and wife, under the act of 1848, with a view of charging the wife’s separate estate, she is the substantial party defendant, and may appeal from an award, without her husband joining in the appeal. 11 C. 384. Under the act of 1856, a wife may sue for slander without joining her husband; her incapacity to sue under that act cannot be taken advantage of on the general issue; it must be pleaded in abatement. 1 Wr. 130. ‘ —_——) Master and Serbant. I. Different kinds of servants. IL. Of the relation of master and servant. J. Tue several kinds of persons who come within the description of servants, may be subdivided into slaves, hired servants, and persons bound by indenture, as regu- lated by the acts of assembly of 1700 and 1771. Domestic slavery existed throughout these United States, when they were colo- nies 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. 754,) passed for the gradual abolition of slavery, this great evil has become extinct. 2 Kent’s Com. 204. 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. Another class of servants are servants who become such by indenture, according to the provisions of the foregoing acts of assembly. To constitute an indenture of servitude, express words, binding the servant, as such, are necessary. 2 Y. 257. An indented servant is not liable to be committed as a vagrant. 1 Br. 275. No instance, I think, can be found in any act of assembly, where the terms “servant” and “apprentice” are used as synonymous. 3 R. 307. , II. There are many important legal consequences which flow from the relation of master and servant. A master may bring an action against any man for beating or maiming his servant, but in such case he must assign, as a special reason for so doing, his own damage aa loss of hig services; and this loss must be proved upon the trial. 1 Bl. Com. 29. The master is answerable for the act of his servant, if done by his command, either expressly given or implied. Therefore, if the servant commit a trepass, by the command or encouragement of his 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 Ibid. 430. 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 banker's servant, the banker is answerable for it. If I pay it to a clerzyman’s or a physician’s servant, whose usual business is not to receive money for his master, and he embez- zles-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. Ibid. ‘ If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes up upon trust, for here 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 566 MASTER AND SERVANT. takes up, for the tradesman cannot possibly distingnish when he comes by my order, and when upon his own authority. 1 Ibid. 480. : 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 liable to whatever extent the servant shall pledge his credit. Peake’s N. P. 47. 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. 4 W. 222. : A master is chargeable if any of hi& family layeth or casteth anything out of his house into the stréet 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 Bl. Com. 481. If a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect; if a smith’s servant lames 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 misbehavior. Ibid. 4381. A master is not liable in trespass for the acts of his servant, unless the particular wrongful act of the servant were done by his order. 7 C. 319. A master is not liable for injuries designedly or intentionally inflicted by his servant. 2 Gr. 43. Where a person employed by one as his servant is using the team of his master for his own purposes and benefit, and in the absence of, and without any directions from the master, uses the team so negligently as to occasion injury to a third party, the master is not liable for such injury, although he assented to the servant using the team for his own benefit. 2 C. 482. 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 criminal offence, although not immediately injurious to the person or property of his master, he will not be entitled to recover any part of his wages. 1 W. & S. 267. In the case of a hiring by the year, at a specified sum per month, it is not com- petent for the employer, within the period contracted for, to reduce the amount of monthly pay without the consent of the other party. 4 H. 196. If one hired at an agreed price, for a certain time, continue in the same service after the expiration of the term, without any new agreement, the presumption of law is, that the parties understood that the original rate of compensation was to be continued. Such is the contract which the law implies, and there can be no Pegs ae a quantum meruit, for any increased rate of compensation. 5 C. 184. In Pennsylvania, a master has no right to inflict corporal punishment on his hired servant. 1 Ash. 267. An action is maintainable at common law for enticing away the servant of another. 1 Bi. Com. 429, : Whoever, wrongfully and maliciously, or with notice, interrupts the relation subsisting between. master and servant, by procuring the servant to depart from the master’s service, or by harboring and keeping him as a servant, after he has quitted it, and during the time stipulated for as the period of service, whereby the master is injured, commits a wrongful act, for which he is responsible at law. 20 Eng. L. & Hq. 176. And this rue is not confined to menial servants, or laborers, but extends to all cases where there is an unlawful or malicious enticing away of a person employed to give his exclusive personal service for a given time, under the direction of an employer, who is injured by the wrongful act. 20 Eng. L. & Eq. 168. A servant cannot maintain an action against his master for not giving him a character. 3 Esp. 201. If: the master give a character which is false and slander- ous, the servant may sue the master for it 3 but a master who honestly and fairly gives the real and true character of a servant to one who asks his character under ieee o hiring him, is not liable to an action for so doing. Bull. N. P.8. 1 one | 567 | Mayhem. I. Provisions of the Penal Code. II. Judicial decisions. I. Act 31 Marcu 1860. Purp. 281. Szot. 80. If any person, on purpose, and of malice aforethought, by lying in wait, shall unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off the nose, ear or lip, or cut off or disable any limb or member of another, or brand another, with intention in so doing to maim or disfigure guch person; or shall volun- tarily, maliciously and of purpose, pull or put out an eye, or bite off the nose, ear, lip, limb or member, or any part of the nose, ear, lip, hmb or member of his oppo- nent while fighting, or otherwise; every such offender shall be guilty of a misde- meanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, three-fourths parts whereof shall be for the use of the party grieved, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years: Provided also, That the party grieved shall, in such prosecution, be received as a competent witness, his credibility to be judged of by the jury as in other cases. Scr. 83. If any person, unlawfully and maliciously, shall shoot at any person, or shall, by drawing a trigger, or by any other manner, attempt to discharge any kind of loaded arms at any person, or shall stab, cut or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure or disable such person, the person so offending shall be guilty of felony, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. Szot. 84. If any person shall unlawfully, wilfully and maliciously, by the explo- sion of gunpowder, or other explosive substance, burn, maim, disfigure, disable or do grievous bodily harm to any person, he shall be guilty of felony, and, on convic- tion, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement, not exceeding three years. Szot. 85. If any person shall unlawfully and maliciously cause any gunpowder, or other explosive substance, to explode, or send or deliver to, or cause to be taken and received by any person, any explosive substance, or any other dangerous or noxious thing, or cast or throw at or upon, or otherwise apply to any person, any corrosive fluid, or other destructive or explosive substance, with intent, in any of the cases aforesaid, to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to such person, he shall be guilty of felony, and, on convic- tion, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three ears. . : z Sect. 90. If upon the trial of any indictment for felony, except murder or man- slaughter, the indictment shall allege that the defendant did cut, stab or wound any person, and'the jury shall be satisfied that the defendant is guilty of the cutting, stabbing or wounding charged in such indictment, but are not satisfied of his guilt of the felony charged in such indictment, then, and in every such case, the jury may acquit the defendant of such felony, and find him guilty of a misdemeanor, in unlawfully cutting, stabbing and wounding; and thereupon, such defendant shall be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, either at labor by separate or solitary confinement, or to simple im- prisonment, not exceeding three years. II. Cutting or biting off the ear was not mayhem, at common law, but has been made so by statute. 68. & R. 226. On the trial of an indictment for mayhem, the malice and lying in wait, need not be expressly proved, but may be collected from all the circumstances of the case. 1 Y. 415. An indictment, however, which leaves out the words “lying in wait” is defective. 3 Y. 282. To convict under the first clause of the 80th section, there need be only a general intent to maim and disfigure; but under the second clause, a particular intent to put out the eye must be shown. 1 Y. 415. An indictment, under the latter clause, which leaves out the word “voluntarily” is bad. 3 Y. 282. [ 568 J I, Lien of mechanics and material-men. II. Of the claim. III. Proceedings on the claim. Mechanics’ Lien. IV. Claims for extra compensation. V. Forms of claims of various sorts, a8 well for material-men as mechanics. TI. Lien OF MECHANICS AND MATERIAL-MEN. Every building (a) erected (b) within the several counties of this commonwealth, to which the act, entitled “ An act securing to mechanics and others, payment for their labors 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,(c) shall be subject to a lien(d) for the pay- ment of all debts contracted(e) for work done, or materials furnished (g) for, (2) The public buildings belonging to a county are not within the act. 7 W. & 8. 197. Nor is a public school-house. 6 H. 275. But a church is such a building. 10 Barr 413. And w stable erected by a passenger rail- way company. 19 Leg. Int. 44. Where the facts are undisputed, the question whether a building is within the act, is necessarily one of law for the court. 1 Phila. R. 218. 2 Ibid. 118. Where, however, it is difficult to decide upon the whole of the evidence, whether the building be a newstructure, or only the altera- tion of an old one, it must be left to the jury as a question of fact. 8 H. 520. (6) An alteration of, or an addition to a house, is not the subject of alien. 10 Barr 379. .Hence, the addition of a basement story to a frame-house finished so far as to have recdived a family, is not within the act. 8 W. 614, So, where the front wall was taken down, and a new wall erected on a different foundation, and the inside of the house, excepting the floors, was altered and renewed, and a new roof was put on, and a new back building erected, the alterations were held not to be the subjects of lien. 10 Barr 379. 2 Am. ‘L. J. 83. If the outward appearance of the old building remain unchanged, however great the interior alterations and additions may be, there is nothing to put purchasers upon inquiry for liens, and such a case would clearly not be within the act. 1 Phila. R. 218. 1 Wr. 182. But where the structure of o building is so completely changed that, in common parlance, it may be properly called @ new building, or w re-building, it comes within the mechanics’ lien law. 8 H. 520. An ice-house, if attached to the principal building, is within the purview of the act. 1 Phila. R. 220-1. 1C. 521. And so isa building erected for a kitchen to an old house which it adjoins and is connected with. 11 C. 848, 849. And in such case the lien attaches as well to the old, as to the new building. 4 C. 156, See 2M. 359, 2 Am. L. J. 86, 83. (ec) The counties to which the acts here referred to had been extended at this time were Allegheny, Armstrong, Beaver, Bedford, Berks, Bucks, Butler, Cambria, Centre, Chester, Clearfield, Columbia, Crawford, Cum- berland, Dauphin, Delaware, Erie, Franklin, Huntingdon, Indiana, Juniata, Lancaster, Le- banon, Luzerne, Lycoming, Mercer, Mifflin, Montgomery, Northumberland, Perry, Phila- delphia, Schuylkill, Somerset, Susquehanna, Tioga, Union, Venango, Warren, Washington, York and the borough of Easton in Northamp- ton county.° By subsequent acts, it has been extended to the counties of Adams, Bradford, Carbon, Chester, Clarion, Clinton, Dauphin, Elk, Fayette, Green, Jefferson, Lawrence, Lehigh, McKean, Monroe, Northampton, Pike, Potter, Wayne and Westmoreland. Where a new county is erected out of patts of other counties in which the act is in force, it applies to such new county, without further provision. 1 Gr. 160. (d) A copper kettle or boiler in a brew- house, is part of the freehold, and subject to the mechanics’ lien law. 178. & RB. 413. Se is the engine by which a steam saw-mill is propelled. 8 W. 140. And burr mill-stones. 5 W.115. But buildings and fixtures erected by alessee for years for the purposes of trade are not the subject of alien. 9 Barr117. 10 Barr 252. 2 H. 118. But see Purd. 710, where its provisions are extended to lJease- holds in Schuylkill and Luzerne counties. (e) One who furnishes nothing but his superintendence and skill as an undertaker of a building, has no lien. 4 W. & S. 257. Nor has a journeyman. 8 Barr 463, 2 J. 287. An architect, however, employed to make the plans and drawings for a building, and to direct and oversee its erection in accordance therewith, is within the provisions of the law. But, it seems, that a mere architect, who only furnishes the plans and drawings and per- forms no services in the erection of the building, is not entitled toa lien. 11 C. 423, (g) A mechanic is entitled to alien for work done with derricks, in hoisting the materials used in the construction of a building. 15 Leg. Int, 857. And for hauling the materials used. 2Wr. 151. The mechanics’ lien law has been specially extended, by act of assembly, to paper-hangers; Purd. 710; to plumbing, gasfitting and the furnishing and erection of grates and furnaces; Ibid. 710; to wharf- builders and all concerned in the making or constructing of the same; Ibid. 710; to every steam-engine, coal breaker or parts thereof, pump-gearing, hoisting-gearing, fixture or machinery, in and about mills of any kind, iron or coal works, coal mines and iron mines . Ibid. 710; and to persons furnishing curb- stone for the pavement of any building, in MECHANICS’ LIEN. 569 or about the erection or construction of the same.(a) Act 16 June 1836, § 1. Purd. 708. * The lien of such debt shall extend.to the ground covered by such building, and to so much other ground immediately adjacent thereto, and belonging in like man- ner to the owner (6) of such building, as may be necessary for the ordinary and useful purposes of such building, (c) the quantity and boundaries whereof shall be deter- mined as follows.(d@) Ibid. § 2. ’ It shall be the duty of the prothonotary of the court of common pleas of every county to which the provisions of this act extend, and the prothonotary of the district court of the city and county of Philadelphia, respectively, [and of the city and county of Lancaster,] the district court of Allegheny county, to procure and keep a book docket, which shall be called “The Mechanics’ Lien Docket,” in which he shall cause to be entered and recorded, all descriptions or designations of lots, or pieces of ground, as hereinafter mentioned; and all claims that may be filed by virtue of this act, together with the day of filing the same; and he shall cause the names, as well of the owner of the lot or piece of ground, as of the contractor, architect or builder, if such be named, and of the persons claiming any lien under this act, to be alphabetically indexed therein.(e) Ibid. § 3. It shall be lawful for the owner of any lot or piece of ground, who may be desirous of erecting or of contracting with any other person for the erection of any building, as aforesaid, to declare or define in writing, the boundaries of the lot, or curtilage appurtenant to such building, previously to the commencement thereof, and cause the same to be entered in a book aforesaid, and such designation of boundaries so ue a entered upon record, shall be obligatory upon all persons concerned. bid. § 4. In default of such designation of boundaries, previously to the commencement of any building, it shall be lawful for the owner of such lot or piece of ground, or for any person having a lien upon the same, by mortgage, judgment or otherwise, or entitled to a lien by virtue of ‘this act, to apply by petition, in writing, to the proper court, to appoint competent and skilful persons as commissioners, to designate the boundaries aforesaid.(g) Ibid. § 5. 0 : It shall be the duty of the court to whom application shall be made as aforesaid, after reasonable notice given to all parties interested,'to appoiit such competent persons commissioners, as aforesaid, as all the parties interested shall nominate, but if the parties cannot agree upon a nomination, it shall be lawful for the court to ata gun competent persons for that purpose, as they shall think proper. bid. § 6. It shall be the duty of the commissioners so appointed, to examine the building, or place at which such building is being erected, and to make a report to the coutt, in pursuance of the order to them directed, and in such report, they shall suffi- ciently designate and describe by metes the counties of Philadelphia and Northamp- ton and in the city of Lancaster; Ibid. 710; and see Ibid. 714, pl. 42. The act of 1856 (Purd. 710) introduces no new principle into the lien law; it does not authorize a lien on personal property; it specifies the objects for which, and not on which, a lien may be had. 1 Wr. 182. (2) Materials furnished for a building, though not used in its erection, constitute a lien. 28.&R.170. 12S. & R. 301. 2 Br. 104. 10 Barr 413, 6H. 52. 12 H. 508. But, al- though used, if not expressly furnished for the building, no lien is acquired. 16 8S. & R. 56. One who furnishes materials to a sub- contractor, has no lien; the owner and the contractor under him alone have power to bind the building. 3. 511. Materials furnished on the credit of a building immediately be- come the property of the owner, and are not liable to be taken in execution for the debts and bounds, with their courses and dis- of the contractor. 6 H. 52. (3) A vendee by articles of agreément is such owner. 2 W. C.C. 83. 1 Phila. R. 466. 1C.521. Where mechanics’ liens are entered against an equitable estate, their value de- pends upon that estate, and they survive or perish with it. 12 0. 247. o Ifthe building be removed or destroyed, before a claim is filed, the lien ceases as to the ground. A lien against a former building is not good against one erected subsequently on the same land, 2. 246. 4. 161. (d) See 3 W. & S. 820. e) A mechanic’s claim is not a record; the lien docket is the record, and i alone affects incumbrancers and purchasers. 11 C. 485. (g) The execution of a prior judgment cre- - ditor will be stayed, on the petition of a sub- sequent mechanics’ lien creditor, until the curtilage appurtenant to the building has been set out, 7 C. 344 570 MECHANICS’ LIEN. tances, and by a draft, if necessary, the limits and extent of ground necessary for the convenient use of such building, for the purposes for which it is designed, and such report shall be entered at length upon the record book aforesaid, and if approved by the court, shall be conclusive upon all persons concerned. Ibid. § 7. If execution shall be awarded for the levy and sale of any lot or piece of ground, upov which a building shall be erected as aforesaid, before the boundaries of the lot or curtilage which ought to be appurtenant thereto, shall be designated, it shall be lawful for the court, upon application, to stay such execution until such desig- nation shall be made, and thereupon order the sale to proceed, in such manner, and: for such part or parts, and in such parcels as shall be most convenient for the administration of equity, among all persons interested. Ibid. § 8. If the building against which any claim shall be filed as aforesaid, or any part of the ground adjacent thereto, shall be sold by virtue of an execution upon any mort- gage or judgment, before the extent of the lien of the claimant shall be ascertained as aforesaid, the court out ‘of which such execution shall have issued shall have power to determine the rights of the respective parties, and the apportionment or appropriation of all liens as aforesaid, and for that purpose may appoint an auditor to inquire into and report the facts, and may decree distribution of the proceeds accordingly, or upon the application of any of the parties may direct an issue for the determination of disputed facts. Ibid. § 9. 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 (a) to the commencement (bd) of such building. Ibid. § 10. The lien created by the act, entitled “ An act relating to the lien of mechanics and others upon buildings,” passed the 16th day of June 1836, shall not be con- strued to extend to any other or greater estate(c) in the ground on which any building may be erected, than that of the person or persons in possession (d) at the time of commencing the said building, and at whose instance the same is erected ; (e) 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. Act 28 April 1840, § 24 Purd. 714. It is hereby declared that the provisions of the act, approved June 16th 1836, entitled “An act relating to the lien of mechanics and others upon buildings,” according to the true intent and meaning thereof, extend to and embrace claims for labor done, and materials furnished and used in erecting any house or other build- ing which may have been or shall be erected under or in pursuance of any contract (a) A prior mortgage has precedence of lien. 1 Ash. 207. Although given to secure future advances. 5 B. 585. See2S8.&R. 188. 5R. 291, :A mortgage for purchase-money is entitled to priority over a mechanic’s lien against the equitable estate of the vendee, under the contract of sale, although dated more than sixty days prior to the time of delivery and recording, and, by agreement, made to a third person, who advanced the purchase- money. 12 C, 247. (8) See 5 R. 291. 5 Wh. 801. 28, &R. 188, 13 8. & R. 269. When the plan of a building is changed and greatly enlarged, while it is in the course of construction, the liens of mechanics and material-men subsequent to such change, relate only to the commence- ment of the alteration on the ground, and are subject to all liens which then had fastened on the land. 6 C, 122. (c) A mechanic’s lien on an equitable estate attaches to the subsequently acquired legal estate. 4 Barr 126. 1C. 521. But not as against an intermediate mortgagee of the legal estate, without notice. 12 C. 247. Ora bona fide purchaser of the legal title. 16 Leg. Int. 87. Bee 4 W. & 8. 223, A lessee for years has not an estate in the land which will be bound by a mechanic’slien. 9 Barr 117-20. But see 12 C. 487, and 4 Wr. 68, where it was held that a lessee under an improvement lease, who had contracted to put up a valuable building upon the land, had power to bind by his contract with the mechanics and material- men, the estate of his lessor. A defendant sued as contractor and owner, may plead that he is neither owner nor contractor. 1 Phila. R, 289. But the plaintiff’s right to recover ~ on the scire facias does not depend upon the quantity of the defendant’s interest in the land. 1 Gr. 283. See 12C. 437. Where a mar- ried woman is the owner of the land, and her husband erects a building on it, a lien filed against him as reputed owner will bind the wife’s title. 17 Leg. Int. 20. 18 Ibid. 880. 9 Pittsburgh Leg. J. 81. (@) The possession of the person whose title is to be incumbered, must be an actual, not a constructive one. 9 W. & S. 120. (e) A person who furnishes materials to rebuild a house by an insurance company in pursuance of the terms of their policy, in place of one consumed by fire, has no lien. 9W. & 8. 119. MECHANICS’ sIEN. 571 or agreement for the erection of the same,(a) and the provisions of the said act shall be so construed; and no claim, which has been or may be filed against any, house or other building, or the lien thereof, or any proceedings ‘thereon, shall be in any manner affected by reason of any contract having been entered into for the erection of such building, but the same shall be held as good and valid as if the building had not been erected by contract: Provided, That no case shall be affected by this section, which may have been decided by the supreme court, or in which the proceeds of the sale of any real estate may have been distributed by the decree of any gourk from which no appeal has been taken. Act 16 April 1845, § 5. urd. 714. II. OF THE CLAIM. Every person entitled to suen lien shall file a claim (6) or statement of his demand in the office of the prothonotary of the court of common pleas of the county in which the building may be situate. Act 16 June 1836, § 11. Purd. 710. Every claim as aforesaid must set forth : 1. The names (c) of the party claimant (d) and of the owner (e) or reputed owner of the building, and also of the contractor,(g) architect or builder, where the con- tract of the claimant was made with such contractor, architect or builder. 2. 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,(h) and the time when the materials were furnished, or the work was done, as the case may be.(7) Ibid. § 12. 3. The locality of the building,(#) and the size and number of the stories of the same, or such other matters of description as shall be sufficient to identify the same.(/) (a) A reference to the contract, in the claim, is unnecessary. 9 Barr 97.. And, where it has been performed, the items of work and materials need not be set forth in the claim. 9 Barr 449. 1 Phila. R. 52. But it must con- tain @ specification of the nature of the work and materials, and of the particular building for which the same was done and furnished. 1H. 497. See 3 P. L. J. 823. 3 Wr. 409. (4) It may be signed by the party’s attorney. 2J.45. And filed by a surviving partner. 1W. & 8. 240. (c) The firm name of the claimants is suffi- cient, 2 W. & 8. 179. Or their individual names, omitting the name of the firm. 10 Barr 186-9. The initial letter of a middle name may be omitted. 10 Barr 186. See 3 P. L. J. 328. (2) A contractor and sub-contractor cannot file a joint claim. 8 W. 478. (e) One who was not owner at the com- mencement of the building, but became so afterwards, need not be named. 4 W. & S. 257. It would not, however, be improper to do so. 5 Wh. 866. A mechanic’s claim filed against the owner of an unfinished building, as owner and contractor, for materials fur- nished for its completion after the sale, binds the land in the hands of the vendee. 2 Phila. R. 19. See 6 Barr 187. 3 P. L. J. 323. ‘g) The person who erected the building, and was cwner when the work was done, may be named as contractor; and a subsequent purchaser joined as owner. 5 Wh. 3866. Un- less it appears that there was a contractor other than the owner, the name of a con- tractor need not be set out in the claim. 1€ Barr 186. Naming wrong persons as coa tractors, is a fatal error. Hershey »v. Od. Fellows’ Hall, Sup. Court, 19th May 1853. MS. And so is the omission to name the contractor. 1 Wr. 125.~ But the act of April 1862, authorizes the striking out of the names of parties improperly joined. Purd. 1281. (A) A claim which omits this statement is incurably defective. 2 ©. 248. 15 Leg. Int. 85. A claim for work and materials, must state the amount claimed for each, as a distinct item. 6 Barr 187. See 9 Barr 449, 1 Phila. BR. 364. If the work be done by con- tract, for a round sum, no specification of items is required. 1 Phila. R. 29. It is not necessary to aver in theclaim filed that the materials were furnished on the credit of the building. 16 Leg. Int. 85. _ (¢) The claim should state when the mate- rials were furnished. 3 W. & S. 258. 9 W. & 8. 183. 2J. 45. 3 Phila. R. 110. It should state not only that the work was done or the materials furnished within six months from the entry of the claim, but upon its face, or by reference to some accompanying paper, a date or dates must be given, by which os allega- tion can be verified. 4.153. But an im- possible date in the bill annexed will not vitiate it, if explained. 1 H. 186. 1 Wr. 125. In a claim for work done or materials fur- nished under an entire contract, but one date need be stated. 4. 153. . 1860. Pate ear eee J.R., Justice of the Peace. [seax.] PHYSICIANS. 617 WARRANT FOR SUBORNATION OF PERJURY. LEBANON COUNTY, 3s. : : The Commonwealth of Pennsylvania, To the Constable of the Township of B——, in the County of Lebanon, greeting: Woaereas, a certain J. D., of the township of H——, in the county of Lebanon, farmer, bene 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, wherein J. W. is plaintiff, and J. B. defendant, did appear accordingly on the first day of June instant, at the office of our said justice in the borough of Lebanon, 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 Lebanon, 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: Anp 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 Lebanon, and arrived that same day towards ayening Lancaster: AND WHEREAS, there are strong grounds to sus- ect that the aforesaid J. D. hath been guilty of wilful and corrupt perjury, by swearing alsely in the said cause; and that the said J. D. hath been suborned to commit the said wwilfal and corrupt perjury, by his master the said J. B.: These are therefore to command ou to take the nail 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 Lebanon aforesaid, the first day of July, in the year of our Lord one thousand eight hundred and sixty. J.B., Justice of the Peace. [szat.] Physictans. In England physicians cannot sue for fees. But in Pennsylvania the law is held differently ; and this difference is founded on practice and acts of assembly. 5 8. & RB. 416. Medicine furnished and medical attendance given during the last illness of dece- dent [the person deceased], to be paid first by executors, &e. Purd. 284. In taking an inquisition of death, super viswm 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 ervices. 3 Barr 462. 7 | 618 ] Poisons. Act 31 Maron 1860. Purd. 229. Secor. 70. No apothecary, druggist or other person, shall sell or dispose of, by retail, any morphia, strychnia, arsenic, prussic acid or corrosive sublimate, except upon the prescription of a physician, or on the personal application of some respect- able inhabitant of full age, of the town or place in which such sale shall be made; and in all cases of such sale, the word poison shall be carefully and legibly marked or placed upon the label, package, bottle or other vessel or thing in which such poison is contained; and when sold or disposed of, otherwise than under the pre- scription of a physician, the apothecary, druggist or other person selling or disposing of the same, shall note in a register, kept for that purpose, the name and residence of the person to whom such sale was made, the quantity sold, and the date cf such sale; any person offending herein, shall be guilty of a misdemeanor, and, on con- vietion, be sentenced to pay a fine not exceeding fifty dollars. Sect. 86. If any person shall unlawfully apply or administer to another, any chloroform, laudanum or other stupefying and overpowering drug, matter or thing, with intent thereby to enable such offender or any other person, to commit, or with the intent to assist such offender or other person, in committing any felony, every such offender shall be guilty of a felony, and, being convicted thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprison- ment, by separate and solitary confinément at labor, not exceeding five years. The 86th section of the Penal Code punishes the administration of stupefying mixtures, with criminal intent, whether the object of the offender has been consum- mated or not; inasmuch as the condition in which the party injured is placed by the administration of the drug, renders the conviction of the consummated crime always difficult, and sometimes impossible. Report on the Penal Code 25. See Wharton & Stillé’s Med. Jur. § 4438. Poor Laws. I. Relief and employment of the poor. IL. Settlements. III. Orders of removal. IV. Appeals. V. Persons liable for the support of others. VI. Desertion., VII. Duties of overseers. VIII. Fines and penalties. IX. Forms of orders, &c. I. RELIEF AND EMPLOYMENT OF THE POOR. Ir shall be the duty of the overseers of every district,(a) from time to time, to provide as is hereinafter directed, for every poor person within the district havi a settlement therein, who shall apply to them for relief.(b) Act 13 June 1836, § 1. Purd. 795. 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. Ibid. § 2. (a) Each township annually to elect two overseers: act 28th February 1885, 3 9; Purd. 964. They are a corporation by act 9th March 1771, 3 16. 1Sm. 838. See 9 Barr 219. They are not jointly liable for money collected by each other in their official capa- city. 8 W. & S. 367. (6) And to pay the funeral expenses of such destitute person, after his decease. 8 W. & S. 94. It is an indictable offence to sell the keeping of paupers to the lowest bidder. 9 Barr 48-9, POOR LAWS. 619- It shall be lawful for the overseers of any district, with the concurrence and under the directions of the supervisors of the township, to employ such poor person, being a male of sufficient ability, in opening or repairing any road or highway within the district. Ibid. § 3. If such poor person, by reason of age, disease, infirmity or other disability, be unable to work, it shall be thé duty of the overseers to provide him with the neces- sary means of subsistence. Ibid. § 4. It shall also be the duty of the overseers of every district to furnish relief to every poor person within the district, not having a settlement therein, who shall apply to aaa v relief, until such person can be removed to the place of his settlement. (a) id. § 5. : 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 (4) from two magistrates (c) of the county for the same, and in case any over- seer shall enter in the proper book or relieve such poor person without an 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.(d) Ibid. § 6. Tt shall be lawful for the overseers of every district to contract with any person (e) 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, main- tain and employ such poor persons, and to receive the benefit of their work and labor, 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 during such refusal. Ibid.§ 7. It shall be lawful for the overseers. of every district, with the approbation and. consent of two or more magistrates of the same county,(g) to put out as apprentices ° all poor children whose parents are dead, or by the said magistrates found to be unable to maintain them, so as that the time or term of years of such apprenticeship, if a male, do expire at or befere the age of twenty-one years, and if a female, at or before the age of eighteen years. Ibid. § 8. The word ‘district’ in this act, shall be construed and taken to mean “‘ township” and “borough,” and every other territorial or municipal division, in and for which officers charged with the relief and support of the poor are directed or authorized by law to be chosen; (h) 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. Ibid. § 45. (a) They are bound to maintain every poor person within their district not having a settle- ment therein, who shall apply to them for relief, until he can be removed to the place of his last settlement ; and if, in an attempt so to remove him, he be left in a township not legally chargeable with his support, he may be returned to the township where he first became chargeable. 5 W. & S. 585. 9 Barr 46. (2) In cases of emergency, re.ief must pre- cede the order of maintenance, and the town- ship would be liable without such order. 12 8S. & R. 292. 9 Barr 47. A physician may recover for medical services rendered to a pauper, in case of emergency, without a pre- vious order of relief, if such order be subse- quently obtained. 8 C.°178. And an order obtained two years afterwards is not too late. 2 Wr. 160. No appeal lies from an order of maintenance. 2 Y. 164. See 2 W. 43. By act 25th January 1858, this section is repealed as to the cities of Pittsburgh and Allegheny ; and the guardians and directors of the poor in said cities are authorized to relieve without an order. P. L 12. (<} Orders for relief may be made by a single justice, in the counties of Northamp- ton, Schuylkill and Somerset, by act. of 4th March 1850. Purd. 659. (d) By acts 80 April 1855, and 6 March 1860, no order of relief may be granted in Washington, Greene, Fayette, and Bradford counties, until proof is made to the satisfac- tion of the justices by the oaths of two repu- table citizens of the proper, that such person is entitled to the relief prayed for; and the names of the said citizens are to be set forth in the order granted by the justices. Purd. 795, n. (e) By act 15th April 1845, 3 20, the over- seers of York county are forbidden to sell any provisions of their own raising, to the almshouse and hospital of said county, under a penalty of $100. Purd. 795, n. (g) The assent of the parent is not neces- sary; nor that the infant should join in the indenture. 38. & R. 158. The directors of the poor in Washington county may bind without the approbation of two justices. Purd. 796. (4) Where a pauper was chargeable to the township, which was divided, it was held, that the overseers of the township which main- tained him after the division, might maintain assumpsit against the other township for a rateable proportion of the expense. 3 8. & R. 117. a 620 POOR LAWS. ie II. OF SETTLEMENTS. A settlement may be gained in any district : (a), . 1. By any person who shall come to inhabit in the same, and who shall for him- self and on his own account, execute any public office, being legally placed therein, during one whole year. 6 ; ; 2. By any such person who shall be charged with and pay his proportion of any public taxes or levies for two years successively.(b) 8. By any person who shall bond side take a lease(c) of any real estate of the yearly value of ten dollars,(d) and shall dwell upon the same, for one whole year,(e) and pay the said rent.(g) ee i 4. By any person who shall become seised of any freehold estate within such dis- trict, and who shall dwell upon the same, for one whole year.(h) 5. By any unmarried person not having a child, who shall be lawfully bound or hired as a servant within such district, and shall continue in such service during one whole year.(i) 6. 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. 7. 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 employer or his assignee, he shall obtain a legal settlement in such other district.(4) Ibid. § 9. 8. By any mariner coming into this commonwealth, and by any other healthy person coming directly from a foreign country into the same, if such mariner or other person shall reside for the space of twelve mouths in the district in which he shall first settle and reside. Ibid. § 9. 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; (7) but if he shall have io known settlement,(m) then she shall be deemed, whether he be living or dead, to be settled in the place where she was last settled before her marriage. Ibid. § 10. Every illegitimate child shall be deemed to be settldd in the place where the mother was legally settled at the time of the birth of such child. Ibid. § 11. a) The place of settlement of the father is that of the children until the latter acquire a new settlement. 8 H. 145. An idiot a na- tivitate can acquire no settlement. 5 H. 88. See 3 Wh. 71. : (6) Payment of an United States tax is not sufficient. 108.&R.179. But a county tax is within the act. 68. & R. 417. (°) Such lease need not be in writing. 9 J. d) Increased to ten pounds in Philadel- phia, by act of 25th May 1840. Purd. 797. (¢) The fraction of a day is not to be regarded in the computation. 18 Eng. L. & Eq, 309. (9) Payment by a surety is sufficient. 6 Barr 262. And such payment need not be in money ; it may be in labor or otherwise, if of the value of $10 per annum. 1 J. 254. (A) A pauper gains a settlement by con- tracting for a lot, under a yearly rent-charge, and building and residing thereon, though he obtain no deed for it. 2 Y, 61. (i) It is not necessary that the hiring, but only that the service, should be for a year. 5 Wh. 430. 2 Ash. 9. But the service must be by virtue of a hiring: service alone, without hiring, will not gain a settlement. 5 Barr 288-5. To constitute a hiring, the considera- tion need not be paid in money. 8 W. 481. See 2 W. 48. 5B. 81. But a contract that one shall provide a shop, loom and tackle, and the other shall perform the labor of weaving, and that each shall receive one-half of the profits, constitutes a partnership, and not a hiring within the statute. 2 W. 842, ’ (#) An indented servant gains a settlement where he first serves sixty days, either with the master to whom he was indented, or with his assignee ; and it is of no consequence that the assignment is voidable by the servant, rovided he perform his service under it. though the assignment may be absolutely void, yet a service performed to the assignee in one township, with the consent of the master in another, is a service with the master in the township of the assignee, and obtaing a settlement there. 5 B. 86. (2) She will not lose her husband’s settle- ment by a divorce. 8 H. 182-4. And though she has a legal settlement in the township where her husband was settled at the time of his death, this does not prevent her from acquiring © new settlement by her own act, after his decease. 6 H. 17. (m) An order removing a married woman to the place where she was last legally settled before her marriage, is not defective, because it omite to state that her husband had no known legal settlement; the court will not ‘presume that he had any such settlement B. 81. POOR LAWS. 621 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 authority 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.(a) Ibid. § 12. 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 commonwealth, (all mariners coming into this commonwealth, and every other healthy person com- ing 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 proper district. ( ) Ibid. § 13. If any housekeeper shall fail to give notice as aforesaid, and if the person 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 he hath, such housekeeper shall be obliged to provide for and maintain such poor person, and in cease 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. Ibid. § 14. 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 col- lect the same by warrant of distress, but if such delinquent shall have no goods or chattels liable to distress, he may be committed to jail, there to remain until he shall have paid the same, or shall be otherwise legally discharged. Ibid. § 15. If any person shall bring, or cause to be brought, any poor person from any place without 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. Ibid. § 25. TII. OrnDERS OF REMOVAL. On complaint made by the overseers of any district to one of the magistrates of the same ‘county,(c) it shall be lawful for the said magistrate, with any other magistrate of the county, where any person has or is likely to become chargeable 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,(e) whether in or out of Penn- (a) The settlement of the father is that of the child, until the latter acquires a new one; and if the township in which the father was settled be divided after his death, the place of settlement of the child is in the township in the territory of which the father resided at his death. 8 H. 145. And that territory is to maintain the pauper, whether he had been chargeable to the parent township or not. 2 J.92. See 3S. .& R. 117. b) See 12 8. & BR, 292-6. ec) Justices of the peace are incompetent, on the ground of interest, to grant an order of removal ‘from their own township. 2 D. 218. 1 Y. 250. 3. W. &S. 548. 5 W. &S. 434. - The aldermen of Pittsburgh have authority to grant orders of removal. 6 W. & 8. 522. A township cannot be made chargeable with the expense of maintaining a pauper otherwise than by the previous order of two justices. 2 W. 280. (d) The order must state that the complaint was made by the overseers, and an adjudica- tion that the pauper was likely to become chargeable. 1 Y. 3866. But it need not set forth the evidence. 1 D. 28. And no intend- ment will be made against the order. 5 B. 81. The pauper himself is not a party. 7 W. 173. But he cannot be removed whilst so ill that his life will be endangered by it. 5 W. & S. 636. (e) If an unmarried indented female servant become pregnant, and be removed by her mistress into another township, for the pur- pose of lying-in, the expenses of which the mistress is able and agrees to pay,.the over- seers of that township may, notwithstanding, before the birth of the child, remove her to the place.of her last legal settlement. 6:8. & B. 562. Where children under the age of seven years are sent to the place of their mother’s settlement for nurture, the expense of their maintenance is to be borne by the place from which they are removed, and not by that to which they are sent. 18. & R. 387. ‘The settlement of a pauper can only be de- cided by two justices or in a court of quarter sessions, on appeal; it cannot be collaterally determined in an action before a single justice or in a court of law. 2R. 26. An order of 622 POOR LAWS. sylvania, unless such person shall give sufficient security to indemnify such district to which he is likely to become chargeable as aforesaid. Ibid. § 16. Provided, That it shall not be lawful, by virtue of any order of removal, to separate any wife from her husband. Ibid. § 17. : . [t shall be the duty of the guardians or overseers of the city or district 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. Ibid. § 18. Provided always, That any person aggrieved by any such order of removal, may appeal(a) 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, (4) the said court shall cause the same to be amended, (c) 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;(d@) 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 notice was not given, they shall adjourn the appeal to their next session, and then determine the same. Ibid. § 19. 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. Ibid. § 24. IV. APpEALs. For the more effectual preventing of vexatious removals and frivolous appeals, the court of quarter 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 tate shall, at the same session, order to the party in whose behalf such appeal shall be determined, (e) or to whom such notice did appear to have been given, such costs and charges as the said court shall consider reasonable and 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 favor of the appellant, that such poor person was unduly removed, they shall at the same session, on demand, award to such appellaat, so much money as shall appear to them to have been reasonably paid, by the city or district appellant, towards the relief of such poor person, between the time of such undue removal and the determination of such appeal, with costs, as aforesaid. Ibid. § 20. If any person, ordered to pay costs or charges as aforesaid, other than overseers removal, followed by an ineffectual attempt to appeal, after the time has elapsed for that purpose, is conclusive evidence of his place of settlement, in a subsequent proceeding for that purpose. In such case it is most proper to proceed on the first order of removal. 10 C, 281. (a) If the justices have no jurisdiction, an appeal does not lie. 6 W. & S. 522. (0) An informality in the proceedings of the justices cannot be taken advantage of, after an appeal, and decision on the merits. 2 W. 43. The quarter sessions is to decide on the merits, without regard to defects in the order. 6 B. 81. (c) This is to receive a liberal construction. 1 C. 468 (d) It must be decided on legal evidence. 7 W. 171. 1J.97. The order may be con- firmed in part, and quashed in part. 18. & R. 887. An order confirmed, is conclusive against the appellant in favor of all the world; an order discharged is conclusive between the parties litigant; an order quashed, is con- clusive on neither. 8 Barr177, 1J. 95. The decision is conclusive upon a new township subsequently created by a division of one of them. 28. & R. 422. On a certioreri, the supreme court is confined to a revision of the ‘regularity of the proceedings. 7 W. 527-9. 5 H. 88. 10 C. 281. There is no mode by which the facts can be legitimately before that court. 1 H. 890. And, therefore, no appeal lies. 6H. 17. 9 H. 46. () Where the order is in part confirmed, and in part quashed, neither party is entitled to costs. 158. & R. 387. And if the order be quashed for want of jurisdiction in the justices, it is error to make any decree as to the costs. 6 W. & S. 522. POOR LAWS. 623 as aforesaid, shall live out of the jurisdiction of such court, it shall be the duty of any magistrate of the county in which such person shall reside, on request 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 remain with- out bail or mainprise, until such costs or money be paid, or until he be otherwise legally discharged. Ibid. § 21. 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 quarter sessions of the county in which such township is situate, on request to them made, and on the production of a copy of such order, certified under the seal of the court making the same, to compel payment of such costs and charges, according to law. Ibid. § 22. Vv. PERsons LIABLE FOR THE SUPPORT OF OTHERS. The father and grandfather, (a) and the mother and grandmother, 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 direet, 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 maintenance of such poor person. (0) Ibid. § 28. If any person shall bring or cause to be brought into this commonwealth any black or colored indented servant, such person, his or her heirs, executors, adminis- trators and assigns, shall respectively be liable to the guardians or overseers of the city or district to which such black or colored person shall become chargeable, for such necessary expenses as such guardians or overseers may be put to for his or co maintenance, support and interment, together with the costs thereon. Ibid. 26. Every person in whom the ownership or right to the service of any negro or ‘mulatto slave shall be vested, shall be liable(c) to the overseers of the district in ‘which (such) negro or mulatto shall become chargeable, (d) or all expenses which such overseers may be put to for the maintenance, support and interment of such negro or mulatto, with the costs thereon. Ibid. § 27.. VI. DeEsERTION. If any man shall separate himself from his wife, (e) without reasonable cause, (7) or shall desert’his children, or if any woman shall desert her children, leaving them a charge upon the district, (A) in any such case it shall be lawful for any two(7) magistrates of the chunty, upon complaint made by the overseers of the district(£) to issue their warrant(Z) to such overseers, therein authorizing them to take and (a) See 6 P. L. J. 433, as to the liability of a grandfather, whilst the father is living. And see 7 H. 56. (4) This does not relieve the township from their liability. 5 W. & 8. 586. (c) One who has used the services of a negro as a reputed slave is liable to the town- ship for her support when she becomes chargeable as a pauper. 9 Barr 217. See 2 W. 280-2. (d) A slave has a settlement in the township where his master resides, which is bound in the first instance to support him. 8 B. 22. 6 8S. & R. 103. (e) The wife, in such case, is a competent witness to prove the marriage. 5 P. L. J. 1. A husband who, by cruel usage, compels his wife to withdraw from his habitation, is liable to proceedings for desertion. 3 P. L. J. 304. (g) The reasonable cause which relieves a husband from a warrant, is only such as will relieve him from the legal duty of mainte- nance; and he can only be relieved from the maintenance of his wife, for reasons or causes that would entitle him to a divorce. 2 Gr. 162. (A) It is not necessary that a wife and child should be declared paupers in due form of law, to authorize proceedings against the hus- band for maintenance. 2 Gr. 162. (¢) Proceedings may be had before one magistrate in Philadelphia, by act 14th April 18538, 3.8. P. L. 418. (%) The complaint must be made by the overseers, not by the wife. 2 Barr 138. 2 Br. 212. 28. & R. 863. The proceedings may be instituted on an information made by a single overseer. 2 Gr. 162. (2) The law considers such desertion as on offence. 48. & R. 606. And the defendant ‘is not entitled to notice previous to the seizure of his property. 25. & R. 363. 624 POOR LAWS. seize so much (a) of the goods and chattels,(b) and receive so much of the rents and profits of the real estate of such man or woman as in the judgment of the said magistrates shall be sufficient to provide for such wife, and to maintain and bring up such children, which sum or amount shall be specified in such warrant; but if sufficient real or personal estate cannot be found, (c) then to take the body of such man, (or woman,) and bring him (or her) before such magistrates, at a time to be specified in such warrant. Ibid. § 29. It shall be lawful for such magistrate,(d) on the return of such warrant, to require security from such man or woman, for his or her appearance at the next court of quarter sessions of the county, there to abide the order of the court, and for want of such security, to commit such person to the jail of the county. Ibid. 80. : 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(e) for the payment of such sums as they shall think reasonable for the purpose aforesaid,(g) and therein authorizing the overseers to dispose of the goods and chattels afore- said (h) by sale or otherwise, and to collect and receive the rents and profits afore- saic, or so much of either as in the judgment of the court shall be sufficient for the purpose aforesaid, but if there be no real or personal estate, it shall be lawful for the court to commit such person to the jail of the county, there to remain until he or she comply with such order, give security for the performance thereof, or be discharged by due course of law.(¢) Ibid. § 31. . The courts of quarter sessions in the several counties of this commonwealth shall have power to hear, determine and make orders and decrees, in all cases arising under the 28th section of the act of 13th June 1836, either upon the petition of the overseers of the poor, or of any other person or persons having an interest in the support of said poor person or persons, and either with or without an order of relief having been first obtained. Act 15th April 1857, § 1. Purd. 799. VII. Duries oF OVERSEERS. If any person shall come out of any city or district in this commonwealth, into any other district, and shall happen to fall sick (4) or die before he have gained a settlement therein, so that he cannot be removed, the overseers of such district shall, as soon as conveniently may he, 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 (a) The warrant must direct how much is bound over to answer 2 charge of deserting to be seized.. 1S. & R. 289. (6) This does not include “choses in action,” which are not liable to seizure under the warrant. But a lease for years is a chattel real and may be seized. 2 Gr. 162. (c) To justify a warrant of arrest, it must appear that sufficient real or personal estate of the defendant could not be found. 2 Barr 142. See 4 P. L. J. 249. (d) The right to hold to bail, given to one magistrate is auxiliary to the proceedings before two justices. 2 Barr 188. (e) The defendant has a right to prove that he had not deserted his wife, but she had deserted him. 28. & R. 868. The de- cree does not affect the rights of creditors. 5 8. & R. 887. The proceedings are subject to the revision of the supreme court on certio- rari. 28. & R. 363. But not until after final decree. 65 Barr 124. Such decree is not affected by a subsequent discharge under the insolvent laws, which will only apply to pay- ments then due. 6 Wh. 82. (g) It is error for the quarter sessions, upon the hearing of a defendant, who was his wife, to order payment of a weekly sum for the support of his wife, and a further weekly sum for the support of his child. The order must be limited to the original charge. 8 Pittsburgh Leg. J. 420. It is too late, after a hearing on the merits, to set aside the a for a mere defect of form. 2 Gr. (k) They cannot order the sale of stock bell, By the wife as administratrix. 5 8S. & (¢) The act of 81st March 1812, 5 Sm. 898, relating to the city of Philadelphia, &., is not hereby repealed. 4 P. L. J. 249. 2 Barr 188. And see act 11th April 1848, relating to the city of Pittsburgh. P. L. 532. (4) If @ person suddenly fall sick, and. after an order for his relief, die, the township of his legal settlement is liable for the ex- penses of his maintenance and burial. 7 W. 627. The township where ao person, not having any legal settlement in the state, first becomes disabled by a hurt, is liable for his maintenance. 10 W. 360. i t ' POOR LAWS. 625 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 be 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 quarter sessions of the county where such poor person was last settled, upon complaint to them made, to compel payment by such guardians or overseers, 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. Act 13 June 1836, § 23. Purd. 796. It shall be lawful for the directors of the poor of any county, and for the over- seers 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 per- son, 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 expenses 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 person after his death, upon demand made and security being given to indemnify such directors or overseers from the claims of all other persons. Ibid. § 33. It shall be the duty of the directors of the poor of the several 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, together 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 governor, to be by him transmitted to the legislature. Ibid. § 34. : If any overseer shall neglect or refuse to perform any duty enjoined upon him by law, and not otherwise provided for, he shall be liable to an indictment for a misde- meanor, 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. Ibid. § 42. All gifts, grants, devises and bequests, hereafter to be made, or 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 borqugh or township 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 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. Act 9 March 1771, § 15. Purd. 796. : If any action shall be brought against any overseer or other person, who in his aid and by his command shall do anything concerning his office, he may plead the general issue, and give this act and any special matter in evidence; and if the plain- tiff shall fail in his action, discontinue the same, or become nonsuit, he shall pay double costs. Ibid. § 33. VIII. FINES AND PENALTIES. 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. Act 138 June 1836, § 85. Purd. 800. 40 626 POOR LAWS. 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 quarter 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 amount which he shall have received as aforesaid, which sums shall be recovered by process of said court. Ibid. § 36. It shall be the duty of the overseers of every district to demand 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 such justice, in the manner that debts of the like amount are or may be by law recoverable. Ibid. § 37. 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 constable living in or near the township in which the person fined resides, for which service such tlerk shall receive the sum of twenty-five cents from the proper overseers, and no more. Ibid. § 38. It shall be the duty of the constable to whom any transcript or certificate shall be delivered 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 deliver such transcript or certificate to one of the overseers of the district to which such fine, penalty or forfeiture belongs, and for such service such constable shall be entitled to receive from such overseers the sum of twenty-five cents, and no more. Ibid. § 89. . 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 quarter sessions of the proper county, be fined and pay to the use of the poor of the proper district, any sum not exceeding double the amount received by him, to be recovered by the process of the said court. Ibid. § 40. An 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 forfeitures 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 oa or part thereof should be retained as a fund for the use of the poor. Ibid. _ 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 delinquent 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 the owner of such goods and chattels, his executors or administrators. Ibid. § 43. If any person shall be aggrieved by the judgment of any one or more magis- trates 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 ee rovided for,) whose decision in all such cages shall be final and conclusive id. ‘ POOR LAWS. 627 IX. Forms oF ORDERS. MERCER COUNTY, ss. To the Overseers of the Poor of the District of ——, in the County of Mercer: Wuereas, complaint hath been made unto us, two of the justices of the peace in and for the said county of Mercer, by ——- of —— aforesaid, Esquire, that a certain , on the tenth day of May, instant, came to the complainant’s house, in aforesaid, and there fell dangerously ill, and that the said —— is a poor and impotent person, and unable 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 May, a. p. 1860. E. F., Justice of the Peace. ae G. H., Justice of the Peace. [szat. MERCER COUNTY, ss. . To the Overseers of the Poor of the District of ——, in the County of Mercer, greeting: Wuereas, 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, laborer, 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, therefore, hereby authorized and required to take charge of the said —— if you find his circumstances to be as represented, and furnish him such medical and other relief as his distressed. situa- tion 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 1860. E. F., Justice of the Peace, femer-| G. H., Justice of the Peace. [sEat. SUMMONS FOR .A DELINQUENT OVERSEER. LUZERNE COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of B., in the County of Luzerne, greeting: Wuersas, information hath been made before J. R. and B. Q., Esquires, two of our justices of the peace in and for the county of Luzerne, 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 justices 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. Wit- ness the 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 sixty. J.B. [sea. B.Q. [sEat. FORM OF CONVICTION IN SUCH CASES. LUZERNE COUNTY, ss. Bz it remembered that on the 5th day of April, in the year of our Lord one thousand eight hundred and sixty, at the borough of L., in the county of Luzerne, J. W., of L. aforesaid, 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 Penn- sylvania, assigned '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. afore- said, saddler, on the twenty-fifth day of March last past, at L. aforesaid, being duly ap- pointed overseer of the poor of the said borough, did neglect or refuse to take upon him the said office, contrary to the act of géneral assembly in such case made and provided, for refused to perform certain duties which by law he was bound to perform.] And afterwards, upon the eleventh day of April, in the year aforesaid, at L, aforesaid, the said J.D. having been previously summoned 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 628 PRINCIPAL AND AGENT. in the said information, and having heard the same, the said J. D. is asked by us the said justices, if he can say anything for himself why he should not be convicted of the pre- mises above charged upon him in form aforesaid. And because the said J. D. hath. nothing to say, nor can say anything in his own defence touching and concerning the premises aforesaid, but doth freely and voluntarily acknowledge and confess all and sin- gular the said premises to be true in manner and form, as the same are charged upon him fn 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 justices that the said J. D. is guilty of the premises charged upon him by the said information: 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 accordingly 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 11th day of April, in the year of our Lord one thousand eight hundred and sixty. J.R. [szau. B.Q. [szat. Principal and Agent. Tue relation of principal and agent takes place, whenever one person authorizes another to do acts or make engagements in his name. Paley on Agen. 1. 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 ge from his situation, office or profession, he cannot but be supposed to have. bid. 72. If a man promises as an agent, he is not personally bound. A. 140. 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 W. 222. A promissory note, signed by a clerk in a store, for his employer, does not bind the latter, without proof of special authority. Ibid. Tf an agent exceed his authority in making a contract, he thereby binds himself individually, but his principal is not bound. 1 W. & 9. 222. 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. 4 ©. 505. An agent specially employed to receive the amount of an account, or take a note for it, has no authority to dispose of the note, when taken 3 he cannot depart from his authority. 7 W. 524. So also, an agent employed to make sales on credit is not authorized subsequently to collect the price in the name of his principal. 6 C. 513. The authority of a general agent to contract so as to bind his principal, is only limited to the usual and ordinary means of accomplishing the business intrusted to him. 7 0. 461. ’ If the agent do an act within the scope of his authority, and at the same tine does something more which he was not authorized to do, and the +wo matters be a ouaes a ~ - sarepacabls, even though both may relate to the same subject; that which he had authority to do is al indi i aaa. 2 Greenl, Ey. § 59, y s alone binding, and the other is Parties who have entered into a contract with one, as the agent of others, are estopped from contesting the agent’s authority to bind his principal. 6 C. 84. 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 W. & S. 282. . Whenever confidence is reposed, the law forbids that it shall be abused. (7 W 387.) It isa rule of law which does not admit of dispute, that an agent is bound to keep his principal informed of all material occurrences in the agency; if he fail PRIVILEGE. 629 to do so, it is negligence, and a palpable violation of duty, for which the factor is slearly liable to a suit. 4 R. 229. 4 W. & 8. 305. An agent appointed to collect money, who buys a note of his principal, at a dis- count, 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. Where an agent, (as an attorney,) rightfully receives money for his principal, which ought to be paid over by the principal to a third person, such third person cannot maintain an action against the agent for its recovery; he is liable to account only to his principal. 1 Am. L. BR. 80. 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 geste. 4 Wh. 180. 1 Greenl. Hy. § 113. Admissions by an agent, when he is about the doing of some act within the scope of his delegated authority, are evidence against the principal; but naked declara- tions which are not part of any res geste, are not admissible. 1 C. 393. On the hiring of an agent for a year, the principal is liable to him for the wages of the year, if he dismiss the agent before its termination. 5 W. & S. 210. Whenever a person acts as agent for the public, he is not personally liable for contracts made by him in that capacity. 1 Mass. 208. Nor will it make any difference if the services, &c., were performed at the special instance and request of the person so acting as agent. Ibid. A public agent of government, contracting for the use of the government, is not, personally, liable, although the contract be under his seal. 1 Cr. 348. A public agent, though known to be such, is personally liable 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 69. Pribtleqe, I. Of the privileges of suitors and witnesses. 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. 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 fill, 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. Bac. Abr. A party attending in court is privileged from the service of a summons, as well as from an arrest. 1 B. 77. A suitor, who was served with a swmmons after the lapse of a day from the de- livery of the verdict, on his motion, was discharged from the action. 2 Y. 222. There is no privilege from the service of a subpena. 4 D. 341. A witness attending before a magistrate, for the purpose of having his deposition taken, under a rule of court, is privileged from arrest, eundo, morando et redeunds, [whilst going, remaining and returning.] 9S. & R. 147. 1 Greenl. Ev. § 317. 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 Y. 387. 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 engaged in transacting private business, after he is discharged from the obligation of the subpoena. 4 D. 329. 1 Greenl. Hv. § 316. 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 privi- 680 PRIVILEGE. leged from the service of a summons in the latter county, although in consequence of circumstances happening after his coming into the county, the deposition has not been taken. 1 M. 237. A refusal to discharge a defendant on the ground of his having been arrested while attending as a party or witness, is a matter of discretion with the court below, the propriety of which cannot be reviewed in the supreme court. 5 Wh. 313. 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. | 6 P. L. J. 330. 8 Am. L. J. 134. 1 Greenl. Hv. § 316. Hither court may, however, discharge the party and give him the benefit of his privilege, but the court from which the process issues will not exercise the power of discharging the party, except under special circumstances. Ibid. The protection given to suitors and witnesses is now extended to every case where the attendance is a duty, in conducting any proceedings of a judicial nature. 98. & BR. 151. The privilege from arrest is confined to parties in civil proceedings, unless it appear, that the arrest on the criminal charge was a contrivance to get the defend- ant into custody on the civil suit. 6 P. L. J. 380. 10 Wend. 686. 1 Ad. & E. 378. II. FREEHOLDERS. The privilege ‘of freeholders to be sued by summons, extends to actions of trespass vt et armis. 1D. 310. 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 B. 135. 1 D. 305. ; A judgment obtained before a justice of the peace is sufficient ground to defeat the privilege of a freeholder. 1 D. 436. The court will abate a capias which has been issued against a freeholder, although the value of his freehold be less than the amount of the plaintiff’s demand, if no ineumbrance exist on his land at the time the writ issued. 1S. & R. 3638. 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 ene supersede it, and give the defendant the privilege secured by law. 1 Ash. 407. A freeholder is an inhabitant in any part of this province, who hath resided therein for the space of two years, and has ji/ty 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 township within this province, clear estate, or hath unimproved land to the value of fifty pounds like money. Purd. 85. The second section of the act of 14th April 1838, relating to the commencement of actions, &e., revived the act of 20th March 1725, which exempted freeholders, in certain cases, from arrest. 1 P.L J. 47. III. ForrIGN MINISTERS AND CONSULS. An ambassador or foreign minister is not amenable to the laws of the nation to which he is sent. 1 N. & M. 217. The recognition by the president of a foreign minister is conclusive upon the judiciary. 4 W.C.C. 153. A secretary of lega- tion is entitled to all the immunities of a minister, and is privileged against any prosecution civil or criminal. 1 W. C. C. 282. An attaché to a foreign legation is a public minister within the statute of 1790. 1 Bald. 240. A foreign minister cannot waive his privilege or immunities, and his submission or consent to an arrest is no justification. Ibid. The chargé @affaires of a foreign government, whose official functions in that capacity ceased on the arrival of the minister of his government, but who was delayed in this country by circumstances, was held not to be amenable to process in a civil suit. 4 D. 321. PROCESS. 631 \ A foreign consul is not privileged from prosecution for a misdemeanor, by virtue of his consular appointment. 2 D. 299, in note. And it seems, that a consul-general is not protected by the law of nations, from a prosecution and indictment for a rape. 5S. & RB. 545. 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. 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 legis- lature. Ibid. But this latter point is denied by Grier, J., in 1 Wall. Jy. 189. See 1 Bouv. Inst. 281. A member of a state convention is privileged from a summons or arrest during the sitting of the conventon, and for a reasonable period before and after the ses- sion. Ibid. 296. . An attorney ‘at law is not privileged in Pennsylvania from arrest on a capias. J Y. 350. , The claim of privilege must be made at a proper time; after judgment obtained it is too late. 4 D. 107. Process. I. Provisions of the Penal Code. \ II. Judicial decisions and authorities. I. Acr 31 Marcon 1860. Purd. 218. Scr. 7. If any sheriff, coroner or keeper of a jail, constable or other officer, shall wilfully and without reasonable cause, refuse to execute any lawful process directed to him, requiring the apprehension or confinement of any person charged with, or convicted of, a criminal offence; or shall wilfully and without reasonable cause, omit to execute such process, by which such person shall escape; he shall be guilty of a misdemeanor, and, on conviction, be sentenced to an imprisonment not exceeding two years, and a fine not exceeding five hundred dollars. Secor. 8. If any person shall knowingly, wilfully and forcibly obstruct, resist or oppose any sheriff, coroner or other officer of the commonwealth, or other person duly authorized, in serving or attempting to serve or execute any process or order of any court, judge, justice or arbitrator, or any other legal process whatsoever ; or shall assault or beat any sheriff, coroner, constable or other officer or person, duly authorized, in serving or executing any process or order as aforesaid, or for and because of having served or executed the same; or if any person shall rescue another in legal custody; or if any person being required by any sheriff, coroner, . , constable or other officer of the commonwealth, shall neglect or refuse to assist him in the execution of his office in any criminal case, or in the preservation of the peace, or in apprehending and securing any person for a breach of the peace; such person shall be guilty of a misdemeanor, and, on conviction, be sentenced to an imprisonment not exceeding one year, and to pay a fine not exceeding one hundred dollars, or either, or both, in the discretion of the court. II. Buacksrone 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 436. Mesne pro- - cess is sometimes put in. contradistinction to finad 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. 632 . PROUESS., 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 fill up or alter process, is not only imprudent and indiscreet, but void. 10 Johns. 245. Proceedings of a justice, in an action of debt, were set aside, because the sum- mons stated no day of appearance. A. 272, 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 wag for a greater sum. 1D.405. . A warrant by a justice, not directed to any particular person in office, is bad. A. 376. i But a warrant directed to ———, constable, is good, if executed by the con- stable of the district. 6 B. 124. : 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 all the circumstances, whether a warrant should issue. 1 Y. 74. A justice who backs a warrant should be satisfied, by oath, that it is the hand- writing of the justice mentioned in the warrant. Purd. 249. : The warrant of a justice is not returnable at any particular time, but continues in force so long as the justice shall live. Peake N. P. 234. -A warrant shall be issued (if a crimingl warrant) on oath, &., and name or describe the individual to be arrested ; otherwise it is unconstitutional, and the offi- cer cannot justify an arrest under it. 3 B. 48. 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- wealth 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. , The provision in the 11th sect. of the 5th article of the constitution of Penn- sylvania, that “all prosecutions shall be carried on in the name and by the authority of 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 Revolution, it was the rule and practice to conclude such prosecutions against the peace, &c., of the king. Ibid. 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. The offence of obstructing process, consists in refusing to give up possession, or in opposing or obstructing the execution of the writ, by threats of violence, which it is in the power of the party to enforce. 2 W. C0. 0.169. And if the defendant resist the execution of process for his arrest, by refusing to accompany the officer, it is not necessary, to complete the offence, that he should use or threaten violence. 3 Ibid. 835. Any obstruction to the free action of the officer, or his lawful assist- ants, wilfully placed in his or their way, for the purpose of thus obstructing him or them, is sufficient. 2 Curt. C. C. 639. [ 683 J Profaneness. I. Punishment of blasphemy. III. Judicial decisions. fl. Penalty for profane swearing. I. Acr 31 Maron 1860. Purd. 222. Secr. 30. If any person shall wilfully, premeditatedly and despitefully blas- pheme, or speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scriptures of Truth, such person, on conviction thereof, shall be sen- tenced to pay a fine not exceeding one hundred dollars, and undergo an imprison- ment not exceeding three months, or either, at the discretion of the court. , IL. Aor 22 Apri 1794. Purd. 810. Szcr. 3. If any person of the age of sixteen years or upwards, shall profanely curse or swear by the name of God, Christ Jesus, or the Holy Ghost, every person so offending, being thereof convicted, shall forfeit and pay the sum of sixty-seven cents for every such profane curse or oath; 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 correc- tion 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 afore- said, 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. Sxor. 4. The justices of the supreme court, severally, throughout this state, every president of the court of common pleas within 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 them, 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 intoxicate him or herself, ag 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 respect- ively, shall, in a summary way, inquire into the truth of the accusation, and upon the testimony of one or more credible witnesses, or the confession of: the party, shall convict the person who shall be guilty as aforesgid, and thereupon shall pro- ceed to pronounce the forfeiture incurred by the person so convicted, as hereinbefore 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 mainprise, to the house of correction of the county wherein the offence shall be committed, during such time as is hereinbefore directed, there to be fed upon bread and water only, and to be kept at hard labor; 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 labor, 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, laborer, (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 684 PROFANENESS. . 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. Sxcr. 12. 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 thereof; and the other moiety to the person or persons who shall prose- cute 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 prose- cution be commenced within thirty days after the offence has been committed. III. Christianity is part of the law of Pennsylvania, and maliciously to revile it is an indictable offence. 11S. & R. 394. But fairly and conscientiously to promulgate religious opinions is not criminal. Ibid. In an indictment under that act-it is necessary that the words should be laid to have been spoken profanely. Ibid. 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. The form of conviction, given by the 4th section of the act 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. 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 inflicted, but also the alternative duration of imprisonment; and if it do not the proceedings are void, and the defendant cannot be held in prison. 3 P. L. J. 59. Several offences may be contained in one conviction. Ibid. 265. A summary conviction must agree with, and cannot exceed the charge ‘in the information : therefore, where the information charged the defendant with swearing twenty-five oaths, and the conviction and penalty was for twenty-nine oaths, the proceedings were reversed.on certiorart. Ibid. 265. ° [ 685 ] Promissory Notes. I, Definition of a promissory note. V. Of the consideration. II. Liability of the maker of a promissory VI. Protest and notice. note. VII. Notes payable in specific articles. IIT. Liability of the indorser. VIIL. Of actions on promissory notes. IV. Of the negotiability of a note. J. A Promissory Nors 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 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 indorsement the indorsee. Chit. on Bills 324. 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 D. 115. . A note signed by more than one person, and beginning, “I promise,” &c., is several as well as joint. Byles on Bills 6. If a note purporting to be joint and several, be signed by one person on its face, and by two others, neither of whom is the payee, on the back, the latter are, prima facie, to be treated as indorsers, and not as joint makers. 10 C. 58. The receipt of a negotiable promissory note operates as an extinguishment of a prior existing debt, if so intended between the parties; and this is a question of fact upon the evidence. 8 C. 493. But the law raises no implication, from the mere acceptance.of a promissory note for a pre-existing debt, of an agreement to give time for payment of the original debt, until the maturity of the note, so as to operate as a discharge to a surety; to have that effect there must be an express binding agreement not to sue until the maturity of the note. 3 Wr. 226. II. LIaBILiry OF THE MAKER. An alteration in the date or amount of a promissory note by the payee, in any material respect,-avoids it, although in the hands of an innocent indorsee, for a valuable consideration. 3 Y. 3891. 78.& R. 508. 2 W. & S. 438. 7 H.119. So will the addition of a particular place of payment. 11 C. 80. If the indorser 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, or might in future have against the maker, by reason of any act, matter, cause or thing, prior to the date of the release, he cannot, if he pay the note afterwards, maintain an action against the maker. 18. & R. 398. A bond from a third person is no discharge of the maker or indorser of a note unless it be so agreed. Nor will the forbearance to sue the maker, nor delay to sue the indorser, discharge the latter, provided the time was not given until after the note was protested. 118. & R. 179. If a note be drawn and indorsed for the accommodation of the indorser, and a bond of indemnity be given by the indorser to the maker, the holder does not dis- charge the maker by giving time to the indorser after the day of payment, although at the time of giving the delay, the holder knows that it was an accommodation note. 98. & R. 229. A note given on Sunday is void, and there can be no recovery upon it. 6 W. 231. The bond 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. The indorsee of an accommodation note may recover the whole amount of it from the maker, although he purchased it from the payee at a greater discount than six per cent. 6 C. 188. But it is a good defence to an action by an indorsee against the maker of a promis- sory note, that it was made for the accommodation of the payee, without considera- tion, and negotiated by him, when over due. 12 C. 285, 636 PROMISSORY NOTES. If the maker of a note, payable at a bank, have no funds in the bank when it falls due, demand of payment is unnecessary. 9 O. 184. II. Lrasitiry oF THE INDORSER. The indorser of a note is only a security that the maker shall pay the money; if the holder be guilty of neglect, or receive part of the money from the maker, and give time for the rest, the indorser is no longer responsible. 1 D. 252. A demand of payment of the maker, or due diligence in endeavoring to make a demand, is necessary to charge the indorser. 4 8. & R. 480. 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 indorser. Ibid. 1 W. & 8. 129. It is not incumbent on the indorser to show the holder where the maker is to be found. Ibid. Where the maker of a note has removed into another state or jurisdiction, subse- quent 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. \ The indorser of a note is not discharged by the holder taking a mortgage from the maker, as security for the debt. 7S. & R. 219. Where a promissory note is payable at a particular place, as a bank, and the holder is at the bank 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 indorser. 1 R. 835. 4 W. & S. 505. The holder of a promi8sory note accepted from the miaker 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, ‘Cin case the check was duly honored at its maturity: Held, that the acceptance of the check suspended the remedy of the holder against the maker, and discharged the indorser. 2 Wh. 253. If one of two payees and indorsers of a note discounted for the accommodation of the maker, die before the note falls due, his representatives are not liable to the holder for any part of the amount. 2 Wh. 344. 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 indorsed the same to a third person, without giving notice of such agreement: Held, that he was ae ” el indorsee, without demand of payment from the maker, protest or notice. 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 indorser of the same, unless the holder agreed to accept oe i note in satisfaction, or to give time for the payment of the first note. 9 . 173. A delay to sue the maker of a note after it becomes due, does not discharge the indorser. 17 Johns. 176. 18 Ibid. 327. The holder of a promissory note, in order to render the indorser 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 indorser. A demand on the maker before the last day of grace must pass for nothing. 8 W. 401. 2 Wh. 377. 6 W. & S. 179. An indorsement in blank by the payee of a sealed bill (note) does not make him liable to the holder. 13 S. & R. 811. 5 Wh. 325. : An indorsement, on a note, without a date, by one not a party to it, is presumed to have been made at its date, and the indorser held liable as an original promissor and not as a guarantor. 1 J. 482. Ibid. 460. ; Where a person indorses an overdue note, he is entitled to notice of demand and non-payment, as much as if it had been indorsed before maturity. It is the duty of the indorsee to present such note to the maker for payment, within a reasonable Lie and, in case of non-payment, immediately to give notice to the indorser. 6 C. PROMISSORY NOTES. 637 Where a negotiable note is indorsed by one not a party to it, tho presumption from the paper is, that he indorsed it for the accommodation of the prior parties, and no liability attaches to him so long as the note remains in the hands of the payee. 4 0. 189, 193. But being a note made out of the usual course of business, it is to be construed according to the contract and understanding of the parties; and if it be proved on the trial, that the indorsement was made at the request of the payee, who, upon the faith of it, loaned the amount to the maker, it imports that if the proposed loan be made, the indorser will guaranty its repayment; and the payee is authorized to write over the name of the indorser such an undertaking as will bind him for the payment of the money. Ibid. Where there is no extrinsic proof to change such irregular indorser, and his lia- bility is to be measured solely by his indorsement, he is not responsible to the payee at all, and only becomes responsible to a subsequent indorsee, by the payee assuming the position of first indorser, and negotiating the note on the credit of all the parties to it. He is not responsible to a holder who has taken it from the payee with the latter as second indorser, for he is thereby deprived of the recourse he would other- wise have to the payee as first indorser. 4 C. 447. IV. THE NEGOTIABILITY OF A NOTE. The negotiability of a note is not impaired by an assignment of it under seal indorsed, nor by a receipt indorsed of certain goods received on account. 2 W. 222. An action may be maintained in the name of the holder of a note, which is payable to bearer. 2 W. 184. In an action against the maker of a note, made “payable and negotiable” at a particular bank, it is not necessary to aver or prove that it was negotiated at such bank. To make such fact important, the instrument must contain words restricting its negotiability to the place designated. 2 C. 257. A note made in fayor of J. W. M., omitting the words “or order” or “bearer,” and “payable and negotiable, without defalcation, at the Kensington Bank,” is negotiable only, in the first instance, at the designated place. Not having been discounted or negotiated at the appointed place, a holder to whom it has been indorsed, cannot maintain an action upon it in his own name against the makers. 5 C. 529. A certificate of deposit, payable to the depositor, or order, in currency, is not a negotiable instrument, and the indorsee thereof cannot maintain an action upon it in his own name. The mere indorsement of such an instrument, is not a legal assignment of it, such as will enable the indorsee to sue in his own name. 12 C. 498. All bills of exchange, drafts, orders, checks, promissory notes or other instru- ments in the form, nature or similitude thereof, that shall or may hereafter be made or be drawn or indorsed 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, country or place whatsoever, for any sum or sums of money, with the current rate of exchange in Philadelphia, or stich 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 indorsement, and recoverable by the indorsee or indorsees 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. Act 5 April 1849, § 11. Purd. 811. V. CoNnsIDERATION. The consideration of a promissory note may be inquired into as between the original parties, and if there be no consideration for the promise, it cannot be enforced by an action. 17 Johns. 301. 3 P. R. 284. When a promissory note is assigned for a valuable consideration, and in the course of business, the assignee cannot be affected by any transactions between the assignor and the parties to such note, to which the assignee is not privy, and 6388 PROMISSORY NOTES. evidence to that effect is not relevant. But such evidence is relevant if it show 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. & R. 587. 7 W. 328. 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 between the payer and a holder claiming by indorsement or delivery made after the note becomes due. 7 W. 130. ; If the payer of a note stand by and see it assigned to a third person without 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 proceed from ignorance or design. 1 P. BR. 476. : 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 holder of a note the right to receive the whole that appears due on the face of it, under all circumstances. 1 8. & R. 180. The consideration of a note payable “without defalcation,” cannot be inquired into in an action by a bond jide holder against the maker, though the tote be not dated in the city or county of Philadelphia, nor discounted by a bank, nor deposited in a bank for collection. 9 8. & R. 193. , In an action by the holder against the indorser of a promissory note, it is com- petent for the defendant to prove that the note was put into circulation by 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 B. 469. The words “without defalcation,’ in a single bill or note under seal, do not preclude the obligee from showing a failure of consideration in an action by an assignee. 2 P. R. 245. If an indorsee take a note heedlessly and under circumstances which ought to have excited the suspicions of a prudent and careful man, the maker or indorser may be let into his defence: much more if there be ground to suspect a secret understanding between an indorser and his indorsee, that the latter should be trustee for the former. 3 W. 25. 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 evidence to charge an indorsee with notice, although it appear 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. The rule undoubtedly is, both here and in England, that where negotiable paper has been stolen or lost, or obtained by duress, or procured or put in circulation 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 20nd Jide, and for a valuable consideration, otherwise he is considered as standing in uc better situation than the former holder, in whose hands the instrument received the taint. Ibid. 26. 7 Barr 476. 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. 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. & S. 235. 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. In an action by an indorser 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 the defendant has given evidence tending to show facts ree to exonerate him, except as against a bond fide holder for value. 5 The indorsee, in a suit against the maker of a promissory note, cannot be called PROMISSORY NOTES. 639 on to prove consideration until the defendant has shown it was obtained or put into circulation by fraud or undue means. 4 W. & S. 445. In a suit by an indorsee against the maker of a note, the presumption is, that the plaintiff obtained it upon a valuable consideration, in the usual course of business, before it was due; and he may rely on this presumption until the defendant makes out a prima facie case against him, that the note was obtained by fraud, felony or force. 4 C. 294, If such proof be made, the holder, to entitle him to recover, must show that he was a holder by purchase for value, before the maturity of the note, and without notice of the fraud. Ibid. = The maker or indorser of an accommodation note cannot set up want of considera- tion, as a defence against it, in the hands of a third person, even though it were peo there merely as collateral security by the party entitled to negotiate it. 10 . 138. 34S If one give a promissory note to another, in order to obtain possession of his goods, which are wrongfully withheld, it is without consideration between the parties to it. 100.142. . 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 common- wealth, by the holder thereof, from the indorsee or indorsees; 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 indorser, shall have been forged thereon, and such value or amount by reason thereof, erroneously given or paid, such indorsee or indorsees, 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 indorsee or indorsees, 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 repayment of the same. Act 5 April 1849, § 10. Purd. 811. This act is only declaratory of the existing law. Notice of the forgery within a reasonable time after its discovery, and an offer to return the note, are necessary to the maintenance of an action for the recovery of the consideration paid; unless the note be shown to possess no value. 6 C. 145, 527. VI. PRorest AND NOTICE. A protest for non-payment must appear under a notarial seal. 1 D. 193. Notice of protest ought to be given in a reasonable time; and by not giving it, the holder takes the loss upon himself. 1 D. 234, 270. No precise form of words is necessary to be used in giving notice of dishonor. It is, however, obvious that it should import that the instrument in question has been dishonored ; 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. And it has been laid down “ that the purpose of giving notice is not merely that the indorser 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 thatthe holder looked to him for payment, and give him notice that he did so;” and that the notice must report that the holder considers the indorser liable, and expects payment from him. Chitty on Bills 71. Verbal notice to the indorser of non-payment by the maker is sufficient. 1 R. 335. 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 indorser, or sent by mail, even though the letter should miscarry. 5S. & R. 822. 3 R. 355. Notice left with the family of a seafaring man, during his absence at sea, is suffi- -cient. 5 B. 542. Demand and notice may be waived by the indorser. 8 S. & R. 488. 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. Where the notary was informed that the maker resided in or near a post town in 640 PROMISSORY NOTES. an adjoining county, it was held, that a demand sent through the post-office was not sufficient to charge the indorser. Ibid. A notice of protest sent by mail is sufficient to charge the indorser, but the fact of putting the letter into the post-office must be positively proved, and without such proof it is error to submit it to the jury. 9 W. 273. . . A presentment at the maker’s usual place of business, during business hours, there eine no one there to answer, is a sufficient demand to charge the indorser ; for the maker is bound to have a suitable person there to answer inquiries, and pay his notes, if there demanded. 11 C. 250. If the maker of a note, payable at a bank, have no funds in the bank when it falls due, demand of payment is unnecessary. 9 C. 134. . 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, otherwise it may be left at the dwelling-house of the deceased. 17 Johns. 25. In case of the death of the indorser of a note shortly before its maturity, if his decease, and the granting of letters testamentary to his executors, be unknown to the holder, it is sufficient, in order to charge his estate, to direct notice of non-pay- ment to the deceased indorser, by name, at the post-office nearest his late place of residence. 10 C. 54. A notice of the dishonor of a note, indorsed by the testator, given to one named as executor in the will, who had not joined in the probate or qualified as executor, but who had not renounced at the time of the notice, and who did not refuse the notice, is sufficient to charge the estate. 4 C. 459. The death of the maker of a promissory note, before its maturity, and the grant- ing of letters testamentary to the indorser and another, as his executors, does not dispense with the necessity of giving notice of non-payment to the indorser; and in default of such notice, he is discharged from all personal liability. 7 C. 271. 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 J. 456. Payment of all notes, checks, bills of exchange or other instruments 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, respect- ively ; on which said secular days demand of payment may be made, and in case of non-payment or dishonor of the same, protest may be made, and notice 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 legally 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 liabilities of the parties to any such instruments heretofore executed. Act 11 April 1848, § 3. Purd. 811. VII. Noves PAYABLE IN SPECIFIC ARTICLES. The general rule of the common law is, that when no time or place is fixed by the contract for the payment or delivery of specific property, there must be an offer or tender, within a reasonable time, to pay or deliver. 2 P. R. 68. If the time of delivery be fixed by the contract, but not the place, the debtor must seek the creditor, if within the state, and tender or offer to perform the stipu- lation contained in the contract; and if the property be portable, it must be taken a ae creditor and delivered to him; or at his residence. 2 P. R. 63. 3 W.&S. Even in such case, however, he is not bound to carry the property about seeking the creditor, in order to tender it to him; but he must ask the creditor to appoint a reasonable place to receive it. 7 C. 265. If the property be ponderous, then the debtor must call upon the creditor, a PROMISSORY NOTES. 641 reasonable time before, and ask him to appoint a time and place, when and where he will receive it. 2 P. R. 68. \. : If a certain time and place be fixed for the delivery of the articles, it is not necessary that the plaintiff should prove a demand at the time and place; but to defeat the plaintiff’s action, the defendant must show that he was ready at the time and place, and continued ready. 7 W. 380. e Such a contract is satisfied, by a delivery of the articles at the time and place eet although the plaintiff was not there to receive them. 5 W. 262. 4 Barr A contract to pay a given sum in farm produce, or in manufactured articles, or in store goods, has not the same construction ; in such case, the creditor must call upon the debtor and select and demand what he will have. 2 W. 140. 7 C. 268. A firm, who were large dealers in watches and jewelry, accepted an order on them, to pay “J. M. P. or bearer, $100 in watches or a watch, as may suit a pur- chaser :” held, that the presumption was that they undertook to pay the order from their stock on hand, when it should be presented ; and that the holder had no right to insist on receiving a description of watch which they had not on hand, and which they would be obliged to procure elsewhere. 6 W. & 8. 381. VIII. OF AcTIONS ON PROMISSORY NOTES. : : f , ; An indorser on a promissory note cannot be sued on and before the full expira- tion 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 writ was issued. 2 M. 353. : The last indorser of a negotiable note having possession of it, has a right of action against the maker, and any of the prior indorsers. 4 Wh. 489. 9 W. 189. A negotiable note, payable to the order of the plaintiff, need not be indorsed by him before suit brought. 1 W. & S. 418. An action cannot be maintained in the name of an indorsee upon a promissory note payable to A. only, and not his order. 2 D. 249. An action may be maintained in the name of the holder of a note which is pay- able to bearer, although it be transferred after it became due. 2 W. 134. Where an instrument in the form of a promissory note for the payment of a cer- tain 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. é The last indorser of a negotiable note having possession of it, has a right of action against the maker and any of the prior indorsers without a previous resort to the payee, for whose accommodation it had been discdunted. 9 W. 96. In an action by the holder against the indorser of a negotiable note, the maker is an incompetent witness, both on the ground of interest and general policy. 3 W. & 8. 557. : Where a promissory note is made expressly payable at a particular place, and is dishonored there, so that the holder is compelled to seek payment elsewhere, he is ‘ entitled to the difference of exchange, if there be any. 3 C. 241. 41 [ 642 ] Prothonotary, A Proraonorary is a chief officer or clerk in a court of law. Cowell. The prothonotaries and clerks of the several courts of this commonwealth, shall have and exercise respectively, in the courts to which they severally belong, and with full effect in term time and vacation, the powers and authorities following, to wit: They shall have power: 1. To sign and affix the seal of the respective court to all writs and process, and also to the exemplifications of all records and process therein. . 2. To take bail in civil actions, depending in the respective court. 3. To enter judgments at the instance of plaintiffs, upon the confessions of defendants. 4, To sign all judgments. : 5. To take the acknowledgment of satisfaction of judgments or decrees entered on the record of the respective court. 6. To administer oaths and affirmations in conducting the business of their respective officers. Purd. 818. The prothonotary may appoint a deputy, who may do all acts that his principal can do; 178. & R. 285; as, administer an oath; 5S. & R. 333; 16 Ibid. 65; 9 Barr 19: attest a writ; 16S. & R. 65; 9 Barr 19: or take a recognisance; 17 S. & R. 282. And his deputation will be presumed when it appears on the record that he so acted. 9 Barr 19. 3 But he cannot execute a power of attorney to the prothonotary to discontinue a suit. 1 R. 341. . The prothonotary has no general power to administer judicial oaths, by virtue of his office; he can only do so where the power is specially conferred upon him by statute. 1 P.R.14. 5 W.&8.179. The act 22 March 1859, gives him such general power, (except in Philadelphia); but he is not compellable to administer an oath, except in matters pertaining to the business of his office. Purd. 818. He is not authorized by the act of 1884, to take a recognisance of bail for stay of execution, without the previous approval of the court. 1 W. & 8. 141. Judgment may be entered by the prothonotary, upon a written order, sent to him by the defendant, confessing judgment in an action of debt, and directing him to enter judgment thereon. 13 8. & R. 196. And a paper authorizing the prothono- tary to ae judgment, need not be under seal. 8 S. & R. 567. A defendant may " appear before the prothonotary and confess judgment, in person. 4 W. 441. The prothonotary has no power to receive the amount of a judgment. 4 R. 364. 1 Barr 156. 3 Barr 351. But if the amount for which a judgment has been recovered be claimed by different persons, and the defendant, without any order of court, pay it in to the prothonotary, it will be deemed a payment to him in his official capacity, and his sureties will be liable for his faithful appropriation of the money. 5 W. & S. 342. A prothonotary as such, is authorized to receive costs due to his predecessor, and his sureties are liable for it. 2 0. 395. A prothonotary who wilfully neglects any duty which he is bound to perform, is eee his official bond, to any one who may be thereby injured. 1 R. 249. 2 An action does not lie by the prothonotary of a court to recover his fees in a cause which is still depending. 4 B. 167. Where a judgment was obtained against a defendant, and the debt, interest and costs, were arranged by the parties thereto; held, that the officers, under the prac- tice which had so long prevailed, might proceed to collect their fees from the defend- aut, by suing out an execution against him, in the name of the plaintiff, notwith- standing the plaintiff’s agreement to pay such fees in exoneration of the defendant. 3 Barr £23. The party for whom the services are done is responsible to the prothonotary for his fees, and the latter may sue for them like other debts, either before a justice of the peace, or in the proper court when the amount exceeds 100 dollars. But he * PURCHASERS AT SHERIFFS’ SALES. 648 has no right to issue an execution for his fees. The fees are not chargeable to the attorney, unless he becomes security. 13 8. & R. 100. T have always considered it to be the general understanding that the plaintiff is liable to the officers for their fees, in case they cannot be procured from the defend- ant. 4B. 172. 168. & R. 156. The general practice, both before and since the revolution, has been, for the pro- thonotary to receive immediate payment for original writs, writs of removal, sub- peenas, 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, filing declarations, entries of pleas, and the like, the costs have been considered as abiding the event of the action. Ibid. a - Purehasers at Sheriffs’ Sales, I. Act of assembly. II. Forms. J. Act 16 June 1836. Purd. 450. Srct. 105. Whenever any lands or tenements shall be sold by virtue of any execution (a) as aforesaid, the purchaser() of such estate may, after the acknow- ledgment of a deed therefor to him,(c) by the sheriff, give notice to the defend- ant,(d) as whose property the 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. Scr. 106. 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. 2. That the person in possession at the time of such application, is the defendant, 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. Secr. 107. ‘If the applications as aforesaid, shall be verified by the oath or affirm- ation 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 (e) 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 pos- . session, as aforesaid, at the same time to appear before them and the said jury, to (a) An order of sale awarded in an action . of partition, is not within the act. Fitzgib- bons v. Keller, Sup. Court, 31st January 1852. MS. The acts 6 April 1802, (3 Sm. 580,) and 14 March 1814, (6 Sm. 182,) extend to sales under any execution whatever. (6) By act 9th April 1849, 3 16, the like remedy is given to all purchasers of real estate sold under order of the orphans’ court. (c) Such notice cannot be given before the acknowledgment. 5S. & R. 157. The sheriff’s deed is full and conclusive evidence of the purchase. 6 Barr 289. (2) Where the defendant is in possession at the time of the levy and sale, he cannot make any defence against the purchaser; by the purchase under regular process, the purchaser acquires a right, at least, to the possession of the debtor, which alone will support eject- ment against him. 3 Barr 275. 2 Barr 27. 2 Y. 443.. 88. & R. 317. 1 BR. 223. 8 W. 227. 6H. 454. 60, 352. (e) No person but the sheriff himself is competent to perform the duty of selecting jurors; it is a judicial act, requiring judg- ment and discretion, which cannot be deputed to another. 8 Barr 445, 452.. : 644 PURCHASERS AT SHERIFFS’ SALES. show cause, if any he has, why delivery of the possession of such lands or tene- ments, should not be forthwith given to the petitioner. ; Szor. 108. 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 proof, by oath or affirmation, of the due service of such warrant upon him, and of the manner of such service: Provided, That such service shall have - been made three days before the return. Sucr. 109. If the defendant, or other person in possession under him, as afore- gaid, 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 sheriff’s or coroner’s sale, as aforesaid, and a sheriff’s 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 the 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. : _ 8. Whether the person so in possession, has sale, previous to such application. (a) had three months’ notice of such Srcr. 110. Upon the finding of the facts as aforesaid,(b) the justices shall make - a record thereof, and thereupon, they shall award the possession of such real estate to the petitioner. Seor. 111. In ease of a finding for the petitioner (c) as aforesaid, the jury shall assess such damages (d) 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, (e) and reasonable costs,(g) and such judgment shall be final and conclusive to the parties. Szor. 112. 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. Szcr. 113. 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. (A) Szcr. 114. If the person in possession (?) of the premises shall make oath or affirmation 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 defendant, before the judgment (Z) under which the execution and sale took place, and shall become bound in a recognisance, with one or more sufficient sureties, in (a) It is sufficient, if the inquest find that, the purchaser gave ‘‘due and legal notice” to the defendants.‘ 1 R. 317. (6) If the inquest cannot agree, they may be discharged, and a new jury summoned, 4 W. & S. 120. (c) In analogous proceedings, under the landlord and tenant law, the landlords are not concluded by the finding of the jury, although the tenants are; they may renew their complaint before other justices. 8 Barr (d) It is the duty of the jury to assess the damages; and it is error for the justices to do so. 38 Am, L. J. 180, (e) Such judgment cannot be certified to the common pleas, under the act of 1810, in order to create a lien on real estate. Gault v. McKinney, Common Pleas, Philadelphia, 4th February 1854. MS. But an action of debt may be maintained upon it; 2 Phila, R. 71: contra 148. & R. 162. : _ (g) The practice is for the justices to give . judgment for a gross sum for costs; and the court, on certiorari, will presume that they were duly taxed. 5 W. 17. (4) A writ of error is the proper remedy for the revision of the judgment of the com- mon pleas. 1 R. 317. (#) The defendant in the execution cannot stay proceedings under this section by making affidavit that he is in possession of a contract with the purchaser at sheriff's sale, on which he has paid a part of the consideration-money. Cress v. Richter, Sup. Court, 7th April 1853. MS. He must show either a conveyance or such an equitable right to one, as would sus- ae a decree on specific performance. 2 Gr. (4) An affidavit, that he does not hold pos- session of the whole of the premises under the defendant, is insufficient; he should ex- plain what part he so held. 58. & R. 157. (2) As to what is a sufficient averment of title. derived from the defendant before the judgment; see 38. & R. 95. 5 W. 17. “ PURCHASERS AT SHERIFFS’ SALES. 645 the manner hereinafter provided, the said justices shall forbear to give the judg- ment aforesaid. (a) Srcr. 115. Ifthe person in possession of the premises shall make oath or affirma- tion, before the justices, that he does not hold the same under said 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 certain time therein named, not exceeding thirty days thence following, and if at such time, the said person shall appear, and make oath or affirmation, 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 different title, or that he claims under the said defendant by title derived before the judgment aforesaid, and shall enter into a recognisance, with sureties, as aforesaid; in such case, also, the justices shall for- bear to give judgment. , Sect. 116. The oath or affirmation which shall be administered to such claimant, shall be in the following form, to wit: I do (swear or affirm) that I verily believe that I am legally entitled to hold the 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 diferent title, &c. Sect. 117. The recognisance aforesaid, shall be taken in a sum 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, before 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 jurisdiction, 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,(c) and in case he shall fail therein,(d) 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 pre- mises, accrued from the time of the purchase. Sect. 118. If 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. It. Nortcs. To E. F. Philadelphia, February 1st 1860. Srr,—You are hereby notified and required to quit, remove from and surrender up to me, possession of the premises [here describe the premises] which you now occupy, and which I have purchased at sheriff’s sale, as it is my desire to have possession of the same. A. B. PETITION, To G. E. and J. C., Esquires, two of the Aldermen of the City of Philadelphia: Tar compiaint of [A. B.] most respectfully sets forth: That he the said [A. B.,] on the [first] day of [January,] a. p. 1860, purchased at sheriff’s sale, [here describe the (pre- (a) It is sufficient if the oath and recogni- sance are tendered at any time before judg- ment. 38. & R. 95. (5) Where a cause is certified into court, under this section, it is equivalent to a removal by certiorari, to a higher court for trial, and all the proceedings thereafter are part of the same case that was begun before the justices, and not a new cause; and da- mages for wrongful detention are properly included in the verdict, even though notice of such claim be not given. 6 C. 352. (¢) The issue is sufficiently formed in the proceedings before the justices; and it is, therefore, not error to try the cause without. other pleadings. 5 W. 298. (4) On the trial, the defendant cannot give evidence of title inconsistent with the affidavit and claim before the justices. 1 Barr 183. The only matter in issue is the title averred by the defendant in his affidavit. 2 W. 143. He is bound to show that he has a title to the possession, which he did not obtain under the defendant in the execution; or which he ob- tained under him before the judgment on which the execution issued. 6 C. 852. He may show a title derived from a sheriff’s sale of the land to him as the property of the plaintiff, after the commencement of the pro- ceedings before the justices, and whilst the cause is pending in court, and thus defeat the plaintiff’s recovery. 9 W. 149. 646 PURCHASERS AT SHERIFFS’ SALES, mises,] with the appurtenances, and that [E. F.,] now in possession thereof, is the defend- ant, as whose property the said premises were sold; and that he the said [A. B.,] being desirous to possess himself of the said premises, for that purpose did, on ine [ae da; of [February] last past, require the said [E. F.] to surrender unto him the said [A. B., possession of ‘the said premises so occupied by him, and that the said [B. F.] hath hith- erto 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 proceedings may be taken by you, as are directed by the act of assembly in such case made ead ag vided. . B. Sworn before us, this [fourth] day of [May,] 4. p. 1860. G. E., Alderman. J. C., Alderman. PRECEPT. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Sheriff of Philadelphia county, greeting: ; Wuorras, a etttion, verified by the [oath] of [A. B.,] the petitioner, was this day presented to G. E., Esq., and J. C., Esq., two. of our aldermen of the city of Philadelphia, setting forth, That he the said [A. B.,] on the [first] day of [January,| 1860, purchased at sheriff’s sale, [here describe the premises,| with the appurtenances ; and that [E. F.,] now in possession thereof, is the defendant, as whose property the said premises were sold; that being desirous to possess himself of the premises, for that purpose he the said [A. B.,] did, three months previously to his application to us, require of the said [E. F.] to surrender unto him the said [A. B.,] possession of the said premises so occupied by him. Therefore we command you that you summon twelve men of your bailiwick, so that they be and appear before our said aldermen, at [the house of X. Y., No. 250 North Tenth street, in the said city,] on the [seventh] day of [May,] 1860, at [ten] o’clock in the forenoon of that day ; and that you also summon the said [K. F.] so that they be and appear before our said aldermen and the said jury, at the day and place last aforesaid, to show cause, if any they have, why delivery of the possession of said premises should not be forthwith given to the said [A. B.,] according to the form and effect of the act of the eneral assembly in such case made and provided ;—and this you shall nowise omit. nd have you then and there this writ. Witness the said G. E., Esquire, and J. C., Esquire, at the city-of: Philadelphia aforesaid, the [fourth] day of [Max] 1600 .E. [szax. J.0. [szan. Return of the Sheriff—To the aldermen within named, I do certify that I have sum- moned twelve good and lawful men of my bailiwick, and have also summoned the within- named EH. F. to be and appear at the day and place within mentioned, as within I am commanded. 0 answers, W. D., Sheriff. Oath of Furors.—* You and each of you do swear [or affirm] that you will well and truly inquire of and concerning the premises in this precept mentioned, and assess such damages (if any) as the complainant hath sustained thereby.” INQUISITION. Inguistrion, taken at [the house of X. Y., No. 250 North Tenth street, in the city of Philadelphia, ] on the papel day of [May,] in the year eighteen hundred and sixty, before G. E., Esq., and J. C., isq., two of our aldermen of the said city, by the oaths of Pt R., 8. T., &c.,] and the solemn affirmations of [N. H., 0. K., &c.,| twelve good and lawful men of thé said city, who upon their oaths and affirmations respectively do say, that [A. B.,] on the [first] day of (Tanwar in the year one thousand eight hundred and sixty, purchased at sheriff ’s sale, [here describe the premises,| with the appurtenances, and that [E. F.] is now in possession thereof, and is the defendant, as whose property the said premises were sold; and the said [A. B.,] being desirous to possess himself of the said premises, for that preps did, on the [first] day of [February.] 1860, demand of and require the said [E. F.] to surrender unto him the said [A. B.,] possession of the said premises so occupied by him, and that the said [E. F.] hath ihece refused, and still oth refuse to comply with the said demand and requisition to remove from and leave the said premises. And the said jurors do assess damages against the said [E. F.,] for the unjust detention of the said premises, at [one hundred dollars,] besides at costs of suit. Whereupon it is considered by the said aldermen, that possession of the said pre- mises be given to the said [A. B.,] and that he recover of the said [K. F.] his damages aforesaid, together with the costs of suit, amounting to [thirty dollars. ] PURCHASERS AT SHERIFFS’ SALES, 647 © IN TESTIMONY WHEREOF, as well the said aldermen as the said jurors have hereunto set their hands and seals, the day and year first above written, at the city aforesaid. G. E. [seau. M.R., S. T., &e., seals. J.C, ee RECORD. Br rr REMEMBERED, that on the [fourth] day of [May, in the year one thousand eight hundred and sixty, at the af of Philadelphia, due proof was made before us, G. I.., Esq., and J. C., Esq., two of our aldermen of the said city, that [A. B.,] on the ieee day of {January,] in the year eighteen hundred and [sixty,] purchased at sheriff’s sale, [here describe the premises, with the appurtenances, and that [E. F.,] now in possession thereof, is the defendant, as whose property the said premises were sold; and the said [A. B., being desirous to possess himself of the said premises, for that purpose did, on the [first day of [February] 1860, demand of and require the said [E. F.] to surrender unto him the said [A. Bol Borrenicn of the said premises so occupied by him; and that the said {E F.] 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 [fourth] day of [May,] eighteen hundred and [sixty,] at the city aforesaid, prayed us the said aldermen, that a due remedy in that behalf be provided for him, according to the former act of the general assembly of the state of Pennsylvania, in such case made and provided; upon which proof and complaint, the sheriff of the county of Philadelphia is commanded that he summon twelve men of his bailiwick, so that they be and appear before us the said aldermen, at the [house of X. Y., No. 250 North Tenth street,] on [Friday,] the [seventh] day of [May] 1860, at ten o’clock in the forenoon of that day; and that he also summon the said [K. F.,] so that he be and appear before us the said aldermen and the said jury, at the day and place last aforesaid, to show cause, if any he has, why possession of the said premises should not be forthwith made to the aforesaid [A. B.] Afterwards, to wit, on the said [seventh] day of [May] 1860, at the [house of X: Y. aforesaid,] W. D., Esq., sheriff of the county of Philadelphia, appears before us the said aldermen, and returns, that by virtue of the said warrant to him directed, he had summoned twelve good and lawful men, to wit: [M. R., S. T., &e.,] and had also summoned the said [E. F.] to be and appear at this day and place, as by the said warrant he was commanded ; and the said jury being called, appear, and are severally sworn and affirmed. And the said [E. F.] also appears; and we the said aldermen and the aforesaid jury proceed to hear and examine the proofs and allegations offered by the said parties, and do find that the said [A. B.,] on the [first] day of [January] 1860, purchased at sheriff’s sale, [Aere describe the premises,| with the appurtenances; and that the said [E. F.] is in possession thereof, and is the defendant, as whose property the said premises were sold; and the said [A. B.,] being desirous to possess himself of the said premises, for that purpose did, on the [first] day of [February] 1860, demand of and require the said [E. F.] to surrender unto him the said [A. B.,] possession of the said premises so occupied by him; and that the said [E. F.] 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 jury assess the sum of [one hundred dollars,] for the damages of the said [A. B.,] occasioned by the unjust detention of the said premises. Therefore it is considered and adjudged by us the said aldermen, that the said ta B.] shall and do recover and have of the said [E. F.,] as well the said sum of [one hundred dollars,] for his damages aforesaid, as [thirty 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 the city of Philadelphia aforesaid, the [seventh] day of [May,] one thousand eight hundred and eee 2 eu ue .C. [szat. WRIT OF POSSESSION. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Sheriff of Philadelphia county, greeting: Wuaenrsas, due proof hath been made before G. E. and Jos Esquires, two of the aldermen of the said city, and twelve good and lawful men, summoned for that purpose, that [A. B.,] on the [first] day of [January,] a. p. 1860, purchased at sheriff’s sale, [here describe the premises,| with the appurtenances, and that [E. F.] is now in possession thereof, and is the defendant, as whose property the said premises were sold; and that the said [A. B.,] being desirous to possess himself of the said premises, for that_purpose did, on the [first] day of [February] 1860, demand of and require the said [E. F.] to surrender unto him the said [A. B_| -ossession of the said premises so occupied by him, and that the said [E. F.]:/hath hitherto refused, and still doth refuse, to comply therewith ; « 648 RAPE. all which premises being duly found by the said aldermen and jurors, according to the form of the act of general assembly in such case made and provided: We therefore com- mand you, the said sheriff, forthwith to deliver to the said | A. B.] full possession of the remises aforesaid; and we also command you, that of the goods and chattels of the said E. F.] in your bailiwick, you cause to be levied as well the sum of [one hundred dollars, ] which to the said [A. B.] was awarded for his damages sustained by the unjust detention of the premises, as also [thirty dollars,] for his costs and charges by him in and about his suit in that behalf expended, whereof the said [E. F.] is convict. And hereof fail not. Witness the said G. E. and Jd. C., at the city aforesaid, the [seventh] day of [May,] a. p. one thousand eight hundred and sixty. _ HS SEAL. .C. [smaL. Rape. I. Provisions of the Penal Code. III. Form of a warrant for a rape. II. Judicial decisions. I. Aor 31 Marcr 1860. Purd. 233. Sxcr. 91. If any person shall have unlawful carnal knowledge of a woman, forcibly and against. her will; or who, being of the age of fourteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of ten years, with or without her consent; such person shall be adjudged guilty of felonious rape, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confine- ment at labor, not exceeding fifteen years. - Szcr. 92. It shall not be necessary, in any case of rape, sodomy or carnal abuse of a female child, under the age of ten years, to prove the actual emission of seed, in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only. Sect. 98. If any person shall be guilty of committing an assault and battery upon a female, with intent, forcibly and against her will, to have unlawful carnal know- ledge of such female, every such person shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceed- ing five years. II. Rape is the carnal knowledge of a female, forcibly and against her will. 3 Chit. Cr. L. 570. It is not, however, necessary in order to constitute this offence, that the sexual intercourse should have been actually against the will of the prosecu- trix; it is enough that it was obtained without her consent. Thus, where a medical man had sexual connection with a girl of the age of fourteen, who was ignorant of the nature of the act, and made no resistance, solely from the bond fide belief that the defendant was, as he represented, treating her medically, with a view to her cure, it was held*to be a case of rape. 1 Eng. L. & Hq. 554. So, it is rape, to have carnal knowledge of a female, whilst in a state of insensi- bility, and without power over her will, whether that state be caused by the defend- ant or not; if he knew that she was in such state. 1 Den. 0. C. 90. Wh. & St. Med. Jur. § 458-9. It is also rape to have carnal intercourse with an idiotic or insane woman, thou her consent be given, she being incapable of intelligent submission. 10 Bost. L. R. 501-5. Wh. & 8t. Med. Jur. § 463,"n. It has been held to be rape, fraudulently to have carnal knowledge of a woman, under circumstances which induce her to suppose it is her husband. 1 Whart. C. L. § 1144. 7 Conn. 54. But the better opinion, both in England and America, would appear to be, that such an act is not rape, where the intention of the defend- ant way to have connection by fraud, but not by force. R. & R. 487. 29 Eng. L & Hq. 542. 4 Leigh 648. 2 Swan 394. 30 Ala. 54. ' : RAPE, 649 It must appear that the offence was committed without the consent of the woman ; but it is no excuse that she yield at last to the violence, if her consent was forced from her by fear of death or by duress. Nor is it any excuse (for the offender) that she consent after the fact, or that she was a common strumpet; for she is still under the protection of the law, and may not be forced; or that she was first taken with her own consent, if she was afterwards forced against her will; or that she was a concubine to the ravisher, for a woman may forsake her unlawful course of life, and the law will not presume her incapable of amendment. All these circum- stances, however, are material to be.left to the jury (and the consideration of the justice) in favor of the accused, more especially in doubtful cases, and where the .. womun’s testimony is not corroborated by other evidence. Ros. Or. Law 709. See 3 Am. L. J. 318. A man cannot be himself guilty of a rape on his own wife, for the matrimonial consent cannot be retracted. 1 Hale P.C.629. But he may be criminal in aiding and abetting others in such a design. 1 Harg. St. Tr. 388. III. Form oF WARRANT FOR A RAPE, COUNTY OF NORTHAMPTON, ss. The Commonwealth of Pennsylvania, To any Constable of the said County, greeting: You are hereby commanded to take the body of [A. B.,] if [he] 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, on the eighth day of this month, May, in the woods at the Cross Roads, two miles from Easton, on the road to Bethlehem, overtaken the defendant, and there feloniously did, by force and violence, ravish and have carnal knowledge of her, the said C. D., against her will, and further to be dealt with according to law. And for so doing, this shall be your warrant. Witness the said [J. R.,| at Easton, who hath hereunto set his hand and seal, the [ninth] day of [June,] in the year of our Lord one thousand eight hundred and sixty. J. R., Justice of the Peace, (eal The proceedings before the justice are similar to what they are in other cases of a criminal nature. “ [ 650 J Receipts. Recrrpts are acknowledgments in writing of having received a sum of money or other value. A receipt is either a voucher for an obligation discharged or one incurred. Whart. L. Dict. 640. ; A receipt is only evidence of a payment and satisfaction, and may be explained by parol or other evidence. 1 W. C. C. 328. 3 Comat. 88. aaa A receipt in full of all demands is only prima facie evidence of what it imports .to be; and upon satisfactory proof being made that it was obtained by fraud, or given either under a mistake of facts or an ignorance of the law, it may be inquired into and corrected in a court of law, as well asin a court of equity. 1 Pet. C. C. 182. 5 Gilm. 437. A receipt in full, on a settled account, is not conclusive on the parties, but is merely prima facie evidence of what it imports, and may be opened if it be unfairly obtained, or be given under a mistake of facts, or of the legal rights of the party complaining, for the correction of such errors as may be made out by proof. But yet if it be the result of a compromise, it is binding. 4 W. C. C. 562. Plaintiff paid money for goods sold to him by defendant, and lost the receipt; he was sued and obliged to pay the money over again. After this, he found the receipt, and brought an action to recover the money back. He was nonsuited by Lord Kenyon, and a new trial was refused, being applied for on the ground of evi- dence discovered after the trial. 7 T. R. 269. If the question be whether a receipt, to which there is a subscribing witness, was given, the witness must be called, but the fact of the payment of the money may be proved by any witness. 6 B. 16. An acknowledgment in the body of a deed, of the payment of purchase-money, and a receipt indorsed for the same, are not conclusive evidence of payment, nor a bar to a suit for such purchase-money. 6 8. & R. 309. And such receipt is not conclusive of the fact either by plea in bar, as an estoppel, or in evidence to a jury. 3 Ibid. 564. 12 Ibid. 131. It is no evidence whatever of the fact of payment, against a stranger. 4 C. 419. A receipt for the price of goods, given by an agent of a consignee, is a receipt by his employer, so as to enable the consignor to maintain an action for money had and received, against the consignee. 4 Wh. 526. A receipt given by a third person, is not competent evidence to establish the payment of money. The fact must be attested by him on oath, in the ordinary way. 4 W. 424. To the rule that payments to any other person than the party to a suit must be pee by a witness, a payment to a public officer is ‘an established exception. 38 id. 73. Thus a receipt for taxes, given by a collector of taxes, is admissible, without pro- ducing the officer. So of the duplicate of the assessment of a township. Ibid. A receipt does not exclude parol evidence of the payment. 4 Esp. 218. It is competent to give parol evidence to explain a written.receipt, and show that it was given for a note and not for money. 1 W. & S. 821. In this case, Judge SERGEANT, in delivering the opinion of the court, said, “Receipts are open to explanation by parol evidence of what occurred at the time between the parties, and of the circumstances and conditions under which they were given.” [ 651 _ Records, I. Act 31 Marca 1860. Purd. 220. Szor. 15. If any prothonotary, ‘clerk, register, public officer or other person, shall fraudulently make a false entry in, or erase, alter, secrete, carry away or de- stroy any public record, or any part thereof, of any court or public office of this commonwealth, such person shall be guilty of a misdemeanor, and, on conviction, shall be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding two * years. II. Every registry or enrolment, directed by law, and preserved for the use of the public, such as the books of the land office and board of property, are protected by this act. 3S. & R. 207. Riots, Routs and CGnlawful Assemblies. I. What constitutes a riot, rout and unlaw- III. How a riot may be suppressed. ful assembly. IV. Form of a warrant to arrest rioters. II. Provisions of the Penal Code. I. A Riot, is a tumultuous disturbance of the public peace, by three persons, or more, assembling together of their own authority, with an intent mutually to assist one another against any one who shall oppose them; and afterwards putting the design into execution in a terrific and violent manner, whether the object in ques- tion be lawful or otherwise. 1 Hawk. P. C. c. 65. | A Rovt, is where three or more meet to do an unlawful act, upon a common quarrel; as forcibly to break down fences, &¢., upon any claim or pretence of right, &ec., and make any advances toward it. An UNLAWFUL ASSEMBLY, is where three or more do assemble themselves together, to do an unlawful act, as to pull down inclosures, &c., and part without doing it, or making any motion towards it. II. Acr 31 Marcy 1860. Purd. 220. Sect. 19. If any person shall be concerned in any riot, rout, unlawful assembly or an affray, and shall be thereof convicted, he shall be guilty of a misdemeanor, and be sentenced to pay a fine not exceeding five hundred dollars, or undergo an imprisonment not exceed'ng two years, or both, or either, at the discretion of the court; and in case any one is convicted of an aggravated riot, the court may sentence the offender to imprisonment by separate or solitary confinement at labor, not exceeding three years. . Sxrcr. 20. If any persons riotously and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully and with force, demolish or pull down or destroy, or begin to demolish, pull down or destroy any publicHbuilding, private dwelling, church, meeting-house, stable, barn, mill, granary, malt-house or out-house, or any building or erection used in carrying on any trade or manufacture, or any branch thereof, or any machinery, whether fixed or movable, prepared for or employed in any manufacture or any branch thereof, or any steam-engine or other engine for sinking, working or draining any mine, or any building or erection used in conducting the business of any mine, or any bridge, wagon-way, road or trunk, for conveying minerals from any mine; every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be imprisoned by separate or solitary confinement at labor, or by simple imprisonment, not exceeding seven years. 652 : RGOTS, ROUTS, ETC. Sxcr. 31. If any person shall wilfully and maliciously disturb or interrupt any meeting, society, assembly or congregation, convened for the purpose of religious worship, or for any moral, social, literary, scientific, agricultural, horticultural or floral object, ceremony, examination, exhibition or lecture, such person shall, on conviction, be sentenced to pay a fine not exceeding fifty dollars, and suffer an imprisonment not exceeding three months, or both, or either, at the discretion of the court. III. The riot acts of England are not in force here, but it is conceived that the common law invests the proper authorities with ample power to suppress riotous assemblies by violent means, if rendered necessary to prevent the destruction of property, or injury to the persons or lives of the people. (1 Hale P.C.495. 1 East P. ©. 304.) Our own courts have sanctioned this doctrine, in a charge delivered to the grand jury for the city and county of Philadelphia, by his honor Judge Parsons, in which the learned judge says :— “Tf there be a disturbance of the public peace, or a riot in a ward or township, it is required that the constable suppress it, if possible, by arresting, with or with- out warrant, those offending, and bringing them before committing magistrates for trial. He may command all persons to aid and assist him in apprehending the offenders, and use all the force necessary to accomplish it. Aldermen and justices of the peace are likewise bound to aid in having those engaged in a violation of the law, or such as are aiding, abetting or assisting, or ready to aid, abet or assist, apprehended and held to bail for their good behavior, or in default of bail, to commit them to prison. If there be not sufficient force in the ward or township to effect their arrest, then those officers should make immediate complaint to the high sheriff of the county, and require aid from him, and if he be informed by those officers, or from any other source, of such violation of law, it is his duty immediately to summon a posse comitatus, (if need be,) the whole power of the county, for the suppression of any riot, or the dispersion of a mob, whose object is to commit per- sonal violence upon any citizens, or to destroy property, either public or private. “Tf there be reason to believe that the insurgents are armed with hurtful weapons, and an ordinary civil force is not sufficient to arrest them, he should call out a military force for that purpose—the citizen soldiery. All persons possessing physical strength are bound to obey the command of the sheriff—none are exempt. Any one refusing to go is guilty of a crime for such refusal, and on conviction of the offence is liable to a fine and imprisonment. Every officer and soldier 1s bound to attend the sheriff, armed and equipped if he direct it, and for the occasion is subject to his command. “The sheriff is then bound to use that degree of force which is necessary to suppress the riot, tumult or disturbance of the public peace, and to prevent the destruction of property, or injury to the persons or lives of the citizens. “Tt may be asked what degree of force can be exercised on such an occasion. On this point I will be explicit. Ifa great number of persons are assembled together, armed with guns or other hurtful weapons, and their object is manifest to do great personal violence to an individual, or a certain class of individuals, or to destroy public or private property, aud they refuse to submit to the law, resist the sheriff or his assistants when they attempt an arrest, and that with violence; when they refuse to disperse after being commanded by that officer, and are fully bent on violence to the persons or property of others, and all other probable means for the suppression of the outrage fail, that officer may order his posse to take the LIVES OF THE INSURGENTS, if necessary. When driven to that impassable strait, when the sheriff must see the property and lives of the community destroyed by violence, without his having the power to avert it, unless by the destruction of human life, he may adopt it as the last alternative, and the law. justifies him; upon the same principle that it does for. the execution of a criminal condemned by the sentence of a court. Rioters thus assembled and bent on mischief are enemies to the state. They have declared war against the government under which they live, and in a legal point of view are little better than pirates. ’ “Tf the sheriff find the whole force of the county insufficient for the suppression of the mob, he should immediately make a requisition upon the governor for a R1OTS, ROUTS, ETC. 653 tailitary force, who is bound to call out the militia of the state, as commander-in- chief; and, if there be too many disaffected in the state, to suppress internal tumult and violence, the executive can make a requisition upon-the President of the United States for the forces under his command. Hence we see that our government is sufficiently powerful to control any violence which may arise. “By an act of assembly, passed the 31st May 1841, if property is destroyed in consequence of any mob or riot, the owner may sue the county for the damage he sustains, and it must be paid out of the county funds. By another section of the act, the owner of such property is required to give notice to the sheriff, &c., of the intention of the mob, if it be known to him, and he has time before it is destroyed. The act also provides, ‘and it shall be the duty of the said sheriff, aldermen, con- stables and justices, upon the receipt of such notice, to take all legal means to protect said property so attacked, or threatened to be attacked.’(a) This statute is in addition to the common law principles which have been stated, and leaves no doubt as to the authority of the sheriff to suppress a riot, or disperse a mob, by the employment of any force necessary to accomplish the object, even at the sacrifice of the life of an assailant. “This should be done only in the last extremity, when it is apparent no other power will enable the sheriff to protect the persons or property of the community. The lives of the aggressors should not be sacrificed, except under such circumstances as seem to demand it, for the protection of the innocent and unoffending, and when that officer is conscious that peace and good order can in no other way be restored. When the order issues from him for this dernier resort, all who act under it and strictly execute it are justified in what they do in obedience to the same. “Military officers and soldiers are amenable to a judicial tribunal, if they refuse to obey the orders of the sheriff when so called out by him. A disobedience of the directions of that officer, which would subject soldiers and militia officers to a trial before a court-martial, if they were called into service by the commander-in-chief or a superior officer, would make them criminals in the eye of the law, and they can be tried before a court having criminal jurisdiction. “ They are acting under a civil authority, in the capacity of officers and soldiers, yet as citizens armed and equipped to perform a duty enjoined by the civil power. Any citizens not enrolled in the militia might be armed in the same manner by the orders of the sheriff, and the responsibility of each would be the same. Nay, the sheriff may require all whom he enrols in his posse comitatus to be armed and equipped, if, in his opinion, the occasion demand it for the suppression of an out- rage upon the peace of society. It is his duty to bring to his aid at all times a force sufficient to repel the power which a mob have arrayed with a view of destroying property or endangering the persons or lives of unoffending citizens.” In riotous assemblies, all who are present and not actually assistant in their sup- pression, in the first instance are, in presumption of law, participants ; and the obli- gation is cast upon a person so circumstanced, to prove his actual non-interference. ‘When, however, the sheriff of a county, or other known public conservator of the peace, has repaired to the scene of tumult, and there commanded the dispersion of the riotous assembly, and demanded the assistance of those present to aid in its sup- pression, from that instant there can be no neutrals. The line is then drawn between those who are for, and those who are against, the maintenance of order, and with the one or the other, all who see fit to remain, must promptly arrange themselves. Those who continue looking on while the active rioters are resisting the public authorities, are just as much rioters as those most active in the work of violence. 4P.L. J. 33. It has been held, that if a justice of the peace find persons riotously assembled, he alone hath not only power to arrest the offenders, and bind them to their good behavior, or imprison them if they do not offer good bail, but that he may also authorize others to arrest them by a bare parol command, without other warrant; and that by force thereof the persons so commanded may pursue and arrest the offenders, in his absence, as well as presence. 1 Y. 419. 4 P. L. J. 85. (2) This act only extends to the city and county of Philadelphia and the county of Alle- gheny. 654 RIOTS, ROUTS, ETC. Aor 21 Aprit 1858. Purd. 726. Sxot. 11. In case of any breach of the peace, tumult, riot or resistance of pro- cess of this state, or apprehension of immediate danger of the same, it shall be lawful for the sheriff of any county, or mayor of any city, to call for aid from the commandant of the military force of said city or county; the,duty of the com- manding officer to whom such order is given, to order out in aid of the civil autho- rities, the military force or any part thereof under his command; and such force shall always remain under the command of its own officers; in such case it shall not be necessary for commanding officers of companies to issue written orders or notices for calling out their men, but verbal orders or notices shall be sufficient. It shall be the duty of the commanding officer of any division, brigade, regiment, battalion or company, in all cases when so called into service, to provide the men of his command so ordered out, with at least the proper ammunition and arms, in complete order for actual service. Any non-commissioned officer, musician or private, who shall refuse or neglect to obey the orders of his commanding officer, in the case above provided for, shall be liable to a fine of not less than fifteen nor more than twenty dollars, to be prose- cuted and recovered in the manner hereinbefore provided in case of commissioned officers. All non-commissioned officers, musicians and privates, in case of riot, tumult, breach of the peace, resistance to process, or whenever called upon in aid to the civil authorities, shall each receive the compensation of one dollar and fifty cents per day; and all conimissioned officers the same compensation as is paid to officers in the army in service of the United States, together with all necessary rations and forage; and for the horses of any mounted men one dollar per day. IV. WARRANT TO ARREST RIOTERS. ‘COUNTY OF BERKS, ss. The Commonwealth of Pennsylvania, To any Constable of the said County, greeting: Wuerzas, complaint has this day been made before me, the subscriber, J. R., one of the justices of the peace in and for the said county, upon the oaths of F. C. and J. M., that on the 8th day of June, instant, C. D., E. F. and G. H., with others unknown, did riotously assemble together, in the town of Reading, with clubs, sticks and stones, and then and there break into the house of the said F. 0. and destroy his furniture and windows, to his great damage, and to the great terror of the peaceable citizens of the said lace, contrary to the act of assembly in such case made and provided. These are there- ore to command you forthwith to apprehend the said C. D., E. F. and G. H., and bring them before me, the said J. R., to answer unto the said complaint, and to be further dealt with according to law. Witness the said J. R., who hath hereunto set his hand and seal, the ninth day of June, in the year of our Lord one thousand eight hundred and sixty. . J. R., Justice of the Peace. [szat.] [ 655 J Roads and Highways. A TRAVELLER may use the middle or either side of a public road, at his pleasure, _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. 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 adequate and practicable; if not, the object must be deferred till the parties arrive at ground more favorable 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. 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. . c 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. Ibid. 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. It seems, it is ordinarily the duty of one on horseback to yield the travelled path - to one in a vehicle. 2 Chip. 136. It is the general custom in this country for persons meeting on a highway, to pass to the right, but when a horseman or light carriage meets a heavily laden team, and can pass with safety to the left, it is his duty to give way,.and leave the choice of the road to the more unwieldy vehicle. 3 O. 184. The principle that a footman or horseman cannot compel a teamster who has a heavy load, to turn out of the beaten track of the road, if there be sufficient room for the former to pass, is applicable to the case of a light wagon or carriage with a heavy draught. 11 H. 196. : All persons have a right to walk in a public highway, and are entitled to the exercise of reasonable care of persons driving carriages along it. In 5 C. & P. 407, Lord DENMAN said: “A man has a right to walk in the road if he pleases; it is a way for foot passengers as well as carriages.” It is quite clear, that a foot passenger has a right to cross a highway, and that persons driving carriages are liable if they do not take care, so as to avoid driving against the foot passengers who are crossing the road ; and if a person, driving along the road, cannot pull up because his reins break, that will be no ground of defence, because he is bound to have proper tackle. 8 C. & P. 691. This right of the foot passenger, however, does not exempt him from due care on his part. Thus, if a person in a public street in a city, see an omnibus crossing, however furiously, and he will be headstrong enough to try to cross the street, and is run over, he cannot recover in an action against the proprietors of the omnibus, as no one has a right of action if he meet with an accident which, by ordinary care, he might have avoided. 8 C. & P. 373. Where the plaintiff, who was walking in the middle of the street, instead of the footway, was injured by a sleigh driven rapidly by the defendant, it was held to be a question for the jury whether, under all the circumstances, the plaintiff was chargeable with negligence, having left the sidewalk, in not looking behind as well as before, to avoid contact with persons riding or driving in the middle of the street; and that if he was, the defendant would be answerable only for negligence s0 wanton and gross as to be evidence of voluntary injury. 5 W. & S. 524. [ 656 ] Robbery. I. Provisions of the Penal Code. warrant for robbery—confession of a II. Judicial authorities, &c. robber, and a commitment for rob- III. Examination of a person robbed—a bery. I. Acr 31 Marcu 1860. Purd. 234. Sect. 100. If any person, being armed with an offensive weapon or instrument, shall rob, or assault with intent to rob another, or shall, together with one or more person or persons, rob, or assault with intent to rob, or shall rob any person, and at the same time, or immediately before or immediately after such robbery, beat, strike or ill-use any person, or do violence to such person, the person so offending shall be guilty of felony, and, being thereof convicted, shall be sentenced to pay a fine ‘not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years Secor. 101. If any one shall accuse any person of the abominable crime of sodomy or buggery, committed either with man or beast, or of any assault, with intent to commit such abominable crime, or any attempt or endeavor to commit the same, or of making or offering: any solicitation, persuasion, promise or threat to any person, whereby to move or induce such person to commit or permit such abomina- ble crime, with a view and intent, in any of the cases aforesaid, to extort or gain from such person, and shall, by intimidating such person by such accusation or threat, extort or gain from such person any money or property, the person so offend- ing shall be deemed guilty of felony, and, being thereof convicted, shall be sen- tenced to pay a fine not exceeding one thousand dollars, and to undergo an imprison- ‘ment by separate or solitary confinement at labor, not exceeding ten years. Sect. 102. If any person shall rob another, or shall steal any property from the person of another, or shall assault any person with intent to rob him, or shall, by menaces or by force, demand any property of another, with intent to steal the same, such person shall be guilty of felony, and, being convicted thereof, shall be sen- tenced to pay a fine not exceeding one thousand dollars, and to undergo an imprison- ment, by separate or solitary confinement, not exceeding five years. Sxcr. 179. On all convictions for robbery, burglary or larceny of any goods, chattels or other property, made the subject of larceny by the laws of this com- monwealth, or for otherwise unlawfully and fraudulently taking or obtaining the same, or of receiving such goods, chattels or other property, knowing the same to be stolen, the defendant shall, in addition to the punishment heretofore prescribed for such offences, be adjudged to restore to the owner the property taken, or to pay the value of the same or so much thereof as may not be restored. And on all convictions on any indictment for forgery, for uttering, publishing or passing any forged or counterfeit coin, bank notes, check or writing, or any indictment for fraudulently, by means of false tokens or pretences, or otherwise cheating and defrauding another of his goods, chattels or other property, the defendant, in addi- tion to the punishment hereinbefore prescribed for such offences, shall be adjudged to make similar restitution, or other compensation, as in case of larceny, to the per- son defrauded: Provided, That nothing herein shall be so construed as to prevent the party aggrieved, and to whom restitution is to be awarded, from being a compe- tent witness on the trial of the offender. IL. Robbery from the person, which is a felony at common law, is thus defined : a felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. 2 East P. C. 707. It must be proved that some property was taken, for an assault with intent to rob is an offence of a different and inferior nature. 2 East P. C. 707. But .the value of the property is immaterial; a penny as well as a pound forcibly extorted constitutes a robbery ; the gist of the offence being the force and terror. ‘In the fel lowing case, it was held that there was no property in the prosecutor so as to sup- ROBBERY. 657 port an indictment for robbery. The prisoner was charged with robbing the prose- cutor of a promissory note. It appeared that the prosecutor had been decoyed by the prisoner into a room for the purpose of extorting money from him. Upon a table covered with black silk were two candlesticks, covered also with black,” pair of large horse-pistols ready cocked, a tumbler glass filled with gunpowder, a saucer with leaden balls, two knives, one of them a prodigiously large carving-knife, their handles wrapped in black crape, pens and inkstand, several sheets of paper and two ropes. The prisoner, Mrs. Phipoe, seizing the carving-knife and threatening to take away the prosecutor’s life, the latter was compelled to sign a promissory note for £2000 upon a piece of stamped paper, which had been provided by the prisoner. It was objected, that there was no property in the prosecutor, and the point being reserved for the opinion of the judges, they held accordingly. They said that it was essential to latceny that the property stolen should be of some value, and that the note in this case did not on the face of it import either a general -or special property in the prosecutor, and that it was so far from being of any or the least value to hini, that he had not even the property of the paper on which it was written, for it ap- peared that both the paper and ink were the property of Mrs. Phipoe, and the delivering of it by her to him could not, under the circumstances of the case, be considered as vesting it in him; but if it had, as it was a property of which he was never even for an instant in the peaceable possession, it could not be considered as property taken from his person ; and it was well settled, that to constitute the crime of robbery, the property must not only be valuable, but it must also be taken from, the person and peaceable possession of the owner. 2 Leach 673. 2 Hast P. C. 599. In order to constitute a taking, there must be a possession by the robber. There- fore, if a man have his purse fastened to his girdle, and a thief cut the girdle, whereby the purse falls to the ground, that is not taking of the purse, for the thief never had it in his possession. 1 Hale P. C. 533. But if the thief had taken up the purse from the ground, and afterwards let it fall in the struggle, without taking it up again, it would have been robbery, for it would have been qnee in his pee: Ibid. However short the period of possession, it is sufficient. Ros. r. Ev. 732. IIL. EXAMINATION OF A PERSON ROBBED. LYCOMING COUNTY, ss. THE examination of A. B., of Williamsport, in the county of Lycoming, taken on oath before J. R., one of the justices of the peace in and for the said county, who deposeth and saith, that on the first of May inst., he was knocked down on the highway leading from Williamsport to Loyalsock Creek by two men, the one a tall slender man of a dark com- plexion, in a light drab-colored frock-coat, and the other a small thick man below the common size, and his face much scarred with the small-pox, who dragged him into a piece of wood adjoining the road, and robbed him of two golden eagles, six silver dollars, some small silver, &c. He further saith that the persons who committed the said robbery are unknown to him, (Signed, ) A. B. Sworn and subscribed, May 3d 1860, before J. R., Justice of the Peace, A WARRANT FOR ROBBERY. LYCOMING COUNTY, ss. ; The Commonwealth of Pennsylvania, To any Constable of said County, greeting: You are hereby commanded to take the bodies of two men, one a tall, slender white man, in a light drab-colored frock-coat, light trowsers, and a black beaver hat, and the other a small, thick, white man, in a snuff-colored roundabout, drab-colored pantaloons, half-boots, and a drab-colored hat, each of them wearing a light-red bandanna silk hand- kerchief tied loosely round his neck, if they, or either of them, be found in the said county, and bring ‘him or them 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 A. B., of having robbed him, on the highway, of some gold and silver coin, and other articles, on the first day of May inst., and further to be dealt with according to law. And for 80 doing this shall be your warrant, Witness the said J. R., who hath hereunto set his hand and seal, the second day of May, in the year of our Lord one thousand eight hundred and sixty. J.R., Justice of the Peace. [szan.] 42 658 SALE OF REAL ESTATE. CONFESSION OF A ROBBER. LYCOMING COUNTY, ss. Tue voluntary confession of J. S., taken before J. R., one of the justices of the peace, in and for the said county, May 3d, a. p. 1860. The said J. S. being apprehended on suspicion of having committed a robbery upon the person of A. B., of Williamsport, in sa county, doth of his own free will and accord confess and declare, that on the great road between Williamsport and Loyalsock Creek, he, together with a certain J. F., robbed the said A. B. of two golden eagles, some silver dollars, and some other money in silver. And further saith not. (Signed, JS Taken and subscribed, May 3d, a. p. 1860, before J. R., Justice of the Peace. A COMMITMENT FOR ROBBERY. LYCOMING COUNTY, ss. The Commonwealth of Pennsylvania, To any Constable of the said County, and to the Keeper of the Prison of the said County of Lycoming, greeting: TueEse are to authorize and require you, the said constable, forthwith to convey and deliver into the custody of the keeper of the said prison, the body of J. S., charged on his own confession and on oath before J. R., one of our justices of the peace of the said county, with having within the said county, in company with a certain J. F., robbed A. B. on the highway, in the said county, of some gold and silver coin and other articles ; and you, the said keeper, are hereby required to receive the said J. S. into your custody in the said prison, and him there safely to keep till the next court of oyer and terminer of the said county of Lycoming, or until he shall thence be delivered by due course of law. And for so doing this shall be your sufficient warrant. Witness the said J. R., at Wil- liamsport, who hath hereunto set his hand and seal, the third day of May, Anno Domini 860. J. R., Justice of the Peace. [szat.] Sale of Real Estate. I. Of the nature and requisites of a deed. II. What passes by a sale of land. I. WueRE, in a deed, the land sold is said to contain “ about so many acres,” both the grantor and grantee consider these words as a representation of the quan- ie a the grantor expects to sell and the grantee to purchase. 1 Pet. C. C. , 58. . nae words ‘‘ more or less” are intended to cover a reasonable excess or deficit. id. Where land has been sold for a gross sum, and the deed of conveyance describes it truly, by courses and distances, but the quantity of acres said to be conveyed falls short, and there is no express covenant insuring such quantity, the vendee cannot maintain covenant to recover damages. 6 B. 109. 6S. & R. 488. The relation of buyer and seller is not a confidential one, and each party is sup- posed to judge of his own ability to perform his part for himself. 10 W. 110. One who bargains for a good title is not bound to pay the purchase-money upon a tender to him of a defective or doubtful one. Ibid. 413. He who purchases land knowing the title'to be defective, takes the whole risk upon himself of losing all his outlays. 6 W. 87. : No title passes to a vendee who is guilty of fraud in ing i sale be eiivnes or judicial. 7 W. 86. are Pee er treater The purchaser of a fraudulent title must be able to show clearly th i bond jide purchaser, without notice, and that he has actually paid the a money, of which, however, the receipt of the vendor will not be sufficient. 9 W 183. 5 Barr 145. One who has offered his advice and assistance to another in the sale of land, will not be permitted to avail himself of the purchase of it, if obtained upon a mis- representation of its value. 7 W. 386. SALE OF PERSONAL PROPERTY. 659 II. WHAT PASSES BY A SALE OF LAND. The rolls of an iron rolling-mill, as well as the iron plates with which the floor of such mill is covered, and which are an indispensable part of it, though not manu- factured for that purpose, are part of the realty, and pass by a sale of the mill. 2 W. & S. 390. The criterion of fixture in a mansion-house is actual and permanent fastening to ae freehold, but this is not a criterion of a fixture in a manufactory or mill. Ibid. 116. Machinery which is a constituent part of the manufactcry, to the purpose for . which the building has been adapted, and without which it would cease to be such a manufactory, is part of the freehold, and passes with it, though it be not actually fastened to it. Ibid. 3 H. 507. A conveyance of land conveys the grain growing upon it to the purchaser, and ee of it on the part of the vendee can alter the rights of the parties. 7 W. 78. The rule that a purchaser of land buys all that is growing on or issuing out of it, belonging to the seller, unless specially excepted, applies to lands sold at a sher- iff’s sale. 1 Wr. 134. Sale of Personal Property. — I. The requisites of a valid sale. IIL Of warranty and fraud. II. Of the change of property and of delivery. I. A SALE is a transfer of chattels from one person to another for a valuable consideration, and three things are requisite to its validity, viz., the thing sold, which is the object of the contract, the price, and the consent of the contracting parties. The thing sold must have an actual or potential existence to render the contract valid. If A. sells his horse to B. and it turns out that the horse was dead at the time, though the fact was unknown to the parties, the contract is necessarily void. 2 Kent’s Com. 367. A sale is an executed contract. It vests the property in the thing sold in the buyer, and the right to the price in the seller. But when the contract remains executory, there is no sale. It is a condition precedent of a sale for cash, in order to pass the property to the vendee, that payment should be made; clearly so, unless there has been a delivery. Until that is done, the sale is not consummated. The buyer cannot sue for the goods, nor the seller for the price. Yet, even if the con- tract be for a cash sale, if the thing agreed to be sold, be delivered without pay- ment, the property passes to the vendee. The right of the vendee is converted into a mere chose in action. 8 C. 17. A sale of personal property, invests even a bond fide purchaser with no more than the title the vendor had: the exceptions are—Ist, money, checks, notes, &c., termed currency, which pass by delivery only; 2d, where the true owner confers on the party selling to a bond fide vendee, the apparent right of property, or of disposal as agent. 2 J. 229. : ‘II. OF CHANGE OF PROPERTY AND OF DELIVERY. When the terms of sale are agreed on, and the bargain is struck, and everything that the seller has to do with the goods is complete, the property and the risk of accident to the goods vests in the buyer, even before delivery or payment. The buyer is entitled to the goods on payment or, tender of the price, and not otherwise, when nothing is said at the sale as to the time of delivery or the time of payment. 2 Kent’s Com. 387. But if the goods are sold upon credit, agd nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, 660 - SALE OF PERSONAL PROPERTY. a ae and the right of possession and the right of property vest at once in him. Ibid. 388. If the vendor rely on the promise of the vendee to perform the conditions of sale, and deliver the goods accordingly, the right of property is changed, although the conditions be not performed. But where performance and delivery are understood by the parties to be simultaneous, possession obtained by. artifice and deceit will not change the property. 38. & R. 20. See 2 Eng. L. & Eq. 365. 9 H. 559. Ibid. 367. If one sell goods for cash, and the vendee take them away without payment of the money, the vendor should immediately reclaim them, by pursuing the party ; and he may justify the retaking of them by force. 1 Y. 529. 1 H. 146. If a man séll* his goods to another, the property vests in the vendee, though he suffer them to be in the possession of the vendor. A sale of goods is complete upon an order to a wharfinger (or porter) to deliver, communicated and assented to by him. Comyn.’ Where, on the sale of a chattel, the purchase-money is paid, the property is vested in the vendee, and if he permit it to remain in the custody of the vendor, he cannot call upon the latter for any subsequent loss or deterioration not arising from negligence. 3 Johns. 18. When goods are sold, if nothing remains to be done on the part of the seller, as between him and the buyer, the article is to be delivered ; the property has passed. 14 Johns. 167. But even though a part of the price be paid, if the quantity remain to be ascertained, and. there be no actual delivery, the property does not pass to the buyer. 1 C. 208. So long as anything remains to be done between the vendor and vendee, for the purpose of ascertaining the amount or price of the article sold, the property remains in the vendor. 7 C. 128. On a contract for the sale of goods, the vendor, if the goods are bulky, must give notice to the buyer that he is ready to deliver them, and on the vendee failing to take them away, the vendor may, on due notice, sell them at public auction, and charge the vendee with the'difference of price. 5 8S. & R. 19. , A delivery of the key of a warehouse, in which goods sold are deposited, is a sufficient delivery of the goods to transfer the property. 5 Johns. 835. 1 Y. 529. A delivery of the receipt of the store-keeper, for the goods kept in his store, being documentary evidence of the title, is tantamount to a delivery of the goods. 5 Johns. 335. On a sale of personal property, if possession remain in the vendor, and he sell to a bond fide purchaser who is ignorant of the previous sale, the second purchaser will be entitled to hold the property as against the first. 178. & R.99. An agreement to sell a chattel which is in an unfinished state, to be delivered at a future time when finished, is an executory contract upon which a present pro- perty does not pass, though an action will lie for a breach of the agreement. 4 R. 260. 4 W.121. 5 Ibid. 201. A transfer of personal property, unaccompanied by a corresponding change of oe is oo as ae ee 6 W. 126. But if the sale be not fraudulent in fact, it is sufficient if there be such a change of possession transaction of the sort. 12 H. 9. 2 ©. 58, 72 Sian sn Where no time is fixed for the delivery of goods sold, the law makes them deli- verable in a reasonable time «4 if, a a demand is made, there be no objection made as to time, or it were not then made a question by the vend i deewied broken bya refusal. 1 Bald. 341 : ene Tn order to make a transfer of personal property available against creditors, or a subsequent assignor, it must be accompanied by a change of possession at the ‘time or within a reasonable time thereafter. If it have been delayed an unreasonable ay) i is not sufficient that the possession was changed before a levy made. 5 In order to vest a title in goods purchased, it is necessary that they sh been separated from the bulk of the other goods, and Pasueas oh ahaa fee with as little delay as is consistent with the nature of the articles bought, other- wise the transaction is fraudulent as to creditors, and the goods may be taken in execution as the property of the vendor. 6 Ibid. 29. 8 H.528. Where one agrees } * SALE OF PERSONAL PROPERTY. 661 to deliver to another corn in sacks, furnished by the latter for that purpose, at a designated point, upon the arrival of the grain at the designated place, the property ae in the purchaser, and the title of the vendor is completely divested. 5 To constitute a valid assignment of personal property against a judgment creditor, there must be a delivery to, accompanied and followed by a continuing possession in the assignee. 2 W. & S. 147. A party purchasing with notice that the sale is a breach of trust, is particeps criminis, and cannot protect himself against the owner, not being a bond fide pur- chaser. 5 C. 154. III. WaRrRANTY AND FRAUD IN THE SALE OF CHATTELS. 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 [let the purchaser beware] applies, and the party buys at his peril. But if the seller have possession of the article, and he sell it as his own property, he is under- stood to warrant the title. 1 W.& 8.513. A fair price implies a warranty of title, and the purchaser may have a satisfaction from the seller if he sell the goods as his own and the title proves deficient. But with regard to thé 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. 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 Kent’s Com. 374. 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. 78. & R. 482. 1 Wr. 147. 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 equivocal. Ibid. An assertion by the vendor to the vendee at the time of selling a mare, that ‘he is sure 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 subject of an action of deceit. Ibid. 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 rely upon his own examination. 3 W. C. C. 165. , If one sell a horse to another knowing a material defect, which in equity and good conscience he ought to disclose, but do not disclose it, and it be not known to the buyer, or such as a buyer of common prudence must be presumed to know, this is such a fraud as vitiates the contract, and the buyer may recover back the price. A. 322. If one sell an unsound horse knowingly, and conceal the circumstance from the purchaser, and receive a sound price, he is liable in damages to the vendee ; other- wise if he were ignorant that the horse was unsound. 3 Y. 262. 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 C0. & P. 540. In all sales of goods, there is an implied warranty that the article corresponds in specie with the commodity sold, unless there be 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 R. 23. 7 Barr 293. 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. Ibid. A sample or description in a sale note, advertisement, bill of parcels or invoice, 662 SALE OF PERSONAL PROPERTY. - is equivalent to an express warranty that the goods are what they are described or represented to be by the vendor. 3 R. 387. 2 Sandf. Rep. 89. 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 redeliver the articles to the defendant. 3 R. 23. The measure of damages in such cases is the difference between the value of the articles delivered and the commodity sold. Ibid. 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 being merchantable under the denomination affixed to it by the seller. Ibid. 168. No implied warranty arises from an unfounded affirmation 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. 1 Wr. 147. 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 W. 107. 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 misrepresentatiow on a material matter to the contract, which either does or is calculated to mislead or deceive him. 1 Bald. 337. 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 agains? such creditor. 2 Wh. 302. And the party claiming against such ‘creditor is bound to remove all doubt of the fairness of the transaction, even if possession have accompanied the transfer. Ibid. The sale of an unsound horse, without fraud or warranty, though known to be aa by the seller, is no defence to an action for the purchase-money. 3 P. L. . 899. Mere inadequacy of consideration, without warranty or fraud, is no defence to the payment of a note given for the purchase-money of goods. The unsoundness of the article sold amounts neither to want or failure of consideration. In the absence of an agreement by the seller, the purchaser takes at his own risk as to quality. The vendor of a chattel warrants the title, and in some cases the species, but nothing more. 10 C. 236. [ 663 ] Scive facias, - I. Judicial decisions relating to scire II. Form ofa scire facias to show cause why facias. execution should not issue. A scIRE FACIAS, in our practice, is a writ 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 why 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 P. R. 265. 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 remains. 6 S. & R. 574. Where the object of the scire facias is to obtain execution on a judgment or recognisance, d&c., it is called a writ of execution. 2 P. R. 265. When issued against 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 sctre facias quare executionem non. Ibid. 265. No execution shall be issued on, a judgment rendered before a justice of the peace or alderman, after five years from thé rendition of such judgment, unless the same shall have been revived by scire facias, or amicable confession. Act of 8 May 1854. Purd. 601. 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 8. & R. 479. A scire facias against two or more must issue against all the defendants. The plaintiff cannot drop one and go against the others. 4 Wh. 344. . A. justice of the peace may issue a scire facias as well to introduce new parties as to enforce a recognisance of bail. 5 B. 56. If one recover a judgment against a singlé woman and she marry, a scire Jacias must issue against her husband and her, before an execution shall issue. In like manner, if a single woman be plaintiff, and marry after obtaining judgment, a sctre facias must issue in the name of her husband and self, previously to an execu- tion. Grayd. Just. 418. 5 An appeal lies from the judgment of a justice of the peace upon a scire facias. 8. & R. 93. Where bail for stay of execution reside in another county or city, the scire facias against such bail must be issued by an alderman or justice having jurisdiction within the city or county where the bail himself resides. 5 P. L. J. 481. II. Form oF A scire FACIAS, TO BE SERVED ON A DEFENDANT BEFORE ISSUING AN EXECUTION, WHERE THE JUDGMENT HAS BEEN RENDERED FIVE YEARS BE- FORE ISSUING EXECUTION. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Eighth Ward, or to the next Constable of the said City, most con- venient to the defendant, greeting: Wuereas, ——~, on the day of ——, 185-, obtained judgment before the sub- scriber, J. B., one of the aldermen in and for the said city, against . for the sum of debt and -—— costs. And whereas execution of the said judgment still remains to be made. Therefore, you ure hereby commanded to make known to the said —— that he be and appear before our said alderman, at his office, No. 36, South Sixth street, on the —— day of , 1860, at —— o’clock in the noon, to show cause, if anything he knows, or hath to say, wh; the said —— should not have execution against him of the aforesaid debt and costs, according to the form of the said recovery. Witness our said alderman, at Philadelphia, who hath hereunto set his hand and seal, this ——- day of —, Anno Domini 1860. J.B,, Alderman. [szau.] [ 664 J Seal, Tux common law intended, by a seal, an impression upon wax or wafer, or some other tenacious substance capable of being impressed. According to Lord Coxks, a seal is wax, with an impression. In the eastern states, sealing, in the common law sense, is requisite; but in the southern and western states, from New Jersey inclu- sive, the impression upon wax has been disused to such an extent as to induce the courts to allow (but with certain qualifications in some of tke states) a flourish with the pen, at the end of the name, or a circle of ink or scroll, to be a valid substitute for a seal. 4 Kent’s Com. 452. See 1 Bouv. Inst. 344. In public and notarial instruments, the seal or impression is usually made on the paper, and with such force as to give tenacity to the impression, and to leave the character of the seal upon it. Ibid. (note a.) In Pennsylvania, a written or ink seal or scrawl is sufficient. 1 D. 68. 18. & BR. 72. Whether an instrument of writing be under seal or not, is a question of law to be determined by the court from the inspection of the instrument itself; and ought not to be submitted to the jury.. 1 W. 322. See 2 Greenl. Ev. § 296. A state seal proves itself without the attestation of a public officer. 4 D. 416. If a written agreement be under seal, it is called a specialty. The act of limi- tations does not include instruments under seal, but the law will presume payment i the lapse of 20 years, unless the presumption be repelled by evidence. 1 Y. Where the written obligation of two parties, which concluded with the words “witness our hands and seals,” had but one seal, which was affixed to his name by the person who drew and first executed the same, and nearly opposite to this seal the other party signed his name; it was Aeld, that the obligation, on its face, fur- nished intrinsic evidence, that the party last signing it had adopted the seal as it stood upon the paper. 6 Barr 302. E Search-Warrants. I. When to be issued. Ill. Judicial decisions. II. Proceedings on a search-warrant. IV. Form of a search-warrant. I, Tux right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated; and no warrants ght ne ant upon tates an ore by oath or affirmation, and particu- arly describing the place to be searched, and the per i i Gonst. of U. S, Arte IV. of Amend. ponte) Dee The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things, shall issue, without describing them as nearly as may be, nor pie probable cause, supported by oath or affirmation. Const. of Penn. , Art. 1X, sect. 8. : II. Aor 31 Marca 1860. Purd. 249, Szcr. 5. When any person shall be accused before a magistrate, upon oath or affirmation, of the crime of burglary, robbery or larceny, and the said magistrate shall have issued his warrant to apprehend such person or persons, or to search for such goods as have been described, on oath or affirmation, to have been stolen goods, if any shall be found in the custody or possession of such person or persons or in the custody or possession of any other person or persons, for his, her or their SEARCH-WARRANTS. ~ 665 use, and there is probable cause, supported by oath or affirmation, to suspect that other goods, which may be discovered on such search, are stolen, it shall and may be lawful for the said magistrate to direct the said goods to be seized, and to secure the same in his own custody, unless the person in whose possession the same were found shall give sufficient surety to produce the same at the time of his or her trial. And the said magistrate shall forthwith cause an inventory to be taken of the said goods, and'shall file the same with the clerk of that court in which the accused person is intended to be prosecuted, and shall give public notice in the newspapers, or otherwise by advertising the same in three or more public places in the city or county where the offence is charged to have been committed, before the time of trial, noting in such advertisement the said inventory, the person charged and time of trial. And if, on such trial, the accused party shall be acquitted, and no other claimant shall appear or suit be commenced, then, at the expiration of three snonths, such goods shall be delivered to the party accused, and he, she or they shall be discharged, and the county be liable to the costs of prosecution; but if he be con- victed of larceny only, and, after restitution made to the owner and the sentence of the court being fully complied with, shall claim a right in the residue of the said goods, and no other shall appear or claim the said goods, or any part of them, then it shall be lawful, notwithstanding the claim of the said party accused, to detain such goods for the term of nine months, to the end that all persons having any claim thereto may have full opportunity to come, and to the satisfaction of the court, prove their property in them; on which proof the said owner or owners, respectively, shall receive the said goods or the value thereof, if from their perishable nature it shall have been found necessary to make sale thereof, upon paying the reasonable charges incurred by the securing the said goods and establishing their property in the same; but if no such claim shall be brought and duly supported, then the person so convicted shall be entitled to the remainder of the said goods, or the value thereof, in case the same shall have been sold agreeably to the original inventory. But if, upon an attainder of burglary or robbery, the court shall, after due inquiry, be of opinion that the said goods were not the property of such burglar or robber, they shall be delivered, together with a certified copy of the said inventory, to the commissioners of the county, who shall indorse a receipt therefor on the original inventory, register the said inventory in a book, and also cause the same to be pub- licly advertised, giving notice to all persons claiming the said goods to prove their property therein to the said commissioners; and unless such proof shall be made within three months from the date of such advertisement, the said goods shall be publicly sold, and the net moneys arising from such sale shall be paid into the ‘county treasury for the use of the commonwealth: Provided always, That if any claimant shall appear within one year, and prove his or her property in the said goods to the satisfaction of the commissioners, or in the case of dispute, shall obtain the verdict of a jury in favor of such claim, the said claimant shall be entitled to recover, and receive from the said commissioners, or treasurer, the net amount of the moneys paid as aforesaid into the hands of the said commissioners, or by them paid into the treasury of this commonwealth. III. The search-warrant is not to be granted without cath, made before the justice, that the party complaining has probable cause to suspect his property has been stolen, or is concealed in such a place, and showing his reasons for such sus- picion. The oath need not positively and directly aver that the property has been stolen. The warrant should direct the search to be made in the day time; though it is said that, where there ’s more than probable suspicion, the process may be exe- cuted in the night. It ought to be directed to a constable, or other public officer, and not to a private person; though it is fit that the party complaining should be present, and assisting, because he will be able to identify the property he has lost. It should also command that the goods found, together with the party in whose custody they are taken, be brought before some justice of the peace; to the end that, upon further examination of the fact, the goods and the prisoner may be dis- posed of as the law directs. 1 Chit. Or. L. 65. 1 Conn. 40. 13 Mass. 286. 5 Met. 98. 5 Iredell 45. : A search-warrant must specify the place to be searched, as well as the particular person to be taken. 1 Chit. Cr. L. 66. Kirby 213. 666 SED JCTION. ‘With reypect to the mode of executing this warrant:—if the door be shut, and, upon demand, not opened, it may be broken open; and so may boxes, after the keys have been demanded,—and though the goods be not found, the officer will be excused ; though, if the party obtaining the warrant acted maliciously, he is liable to a special action on the case, but not to an action of trespass. 1 Chit. Cr. L. 66. 10 Johns. 263. 6 Blackf. 249. In the execution of criminal process, an officer may break -open the doors of a house in the night time, as well as in the day time, after demand of admittance and refusal. 1 N. H. 346. 1 Root 184. Ibid. 88. To the validity.of a search-warrant, description of place, person and things, is requisite. 2 J. J. Marsh. 44. IV. Form oF A SEARCH-WARRANT. COUNTY OF BLAIR, ss. The Commonwealth of Pennsylvania, To the Constable of E—— township, in the said county, greeting: Wuerzas, information and complaint have this day been made to J. R., Esquire, one of our justices of the peace in and for the said county, upon the [oath] of A. B., that the following articles, to wit: [here insert the articles and their value,| were lately stolen and carried away from his house, and that there is just cause to suspect that the said stolen ‘oods, or some part thereof, are concealed in the house of C. D., of the said township, blacksmith. These are therefore to command you to make diligent search, in the day-, time, in the house of the said C. D., for the said stolen goods, and if you find the same, or any part thereof, that then you secure the said stolen goods, and bring the person or persons in whose custody you find the same, before our said justice, to be examined con- cerning the premises, and further to be dealt with according to law. Witness the said J. R., Esquire, at E—— township aforesaid, the [first] day of [May,] in the year of our Lord one thousand eight hundred and sixty. J.B., Justice of the Peace. [sxat.] | Seduction. I. Provisions of the Penal Code. II. Judicial decisions. I. Acr 31 Marcn 1860. Purd. 224. Sxor. 41. The seduction of any female of good repute, under twenty-one years of age, with illicit connection under promise of marriage, is hereby declared to be a misdemeanor ; and any person who shall be conyicted thereof, shall be sentenced to pay a fine not exceeding five thousand dollars, and to undergo an imprisonment, either at labor by separate or solitary confinement, or imprisonment without labor, not exceeding three years, or both, or either, at the discretion of the court: Pro- vided, That the promise of marriage shall not be deemed established, unless the testimony of the female seduced is corroborated by other evidence, either cireum- stantial or positive. ; \ IL. To constitute the penal offence of seduction, there must be illicit connection and the female must be drawn aside from the path of virtue, which she was hon- ene at the time the defendant approached her. 4 P. L. J. 186. Lewis’ r. L. 51. But a single error 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. ; A female of bad reputation at the time the defendant obtained connection with her, (whether the reputation was acquired by crime, or imprudence only,) is not within the protection of the act. Ibid. 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 SHIPPING. 667 cases, which authorizes a jury to infer a promise of marriage, from open, long-con- tinued, particular and exclusive attentions. Ibid. 1 J. 818. 1 H. 381. Continued attentions to a female for several months, followed by an improper inter- course, is sufficient evidence to warrant the inference of seduction. 2 Wend. 459. 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. A promise to marry, a request and a refusal, may be proved by circumstances, ay entirely within the province of the jury to determine. 3 Gilm. 202. 12 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 Am. L. J. 551. 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 H. 282. 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. 5 W. & S. 461. 3 On an indictment for seduction, the defendant may be convicted of simple fornication. 5 H. 126. \ Shipping. 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. And the principle as to the assessment of damages is this, as in other cases of a similar nature, that the compensation should be equivalent to the injury. 4 D. 206. 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. A shipwright has a lien on a ship for repairs in port. 1 Pet. Adm. 236. Workmen and material-men, having a lien on a vessel which has been taken in execution and sold under a judgment in favor of the United States, are entitled to payment out of the fund in preference to the United States. 1 Gilp. 1. 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. To prove property in a vessel or cargo, other evidence than the registyy, invoice, &c., may be given; such as acts of ownership and the like. 3 W. C. C. 209. The landing of foreign convicts in this state, is made a penal offence by the act of 31st March 1860. Purd. 230. [ 668.7. Sodomy. Aot 31 Marca 1860. Purd. 222. Scr. 32. If any person shall commit sodomy or buggery, he shall be guilty of felony, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. Scr. 33. If any person shall unlawfully and maliciously assault another with intent to commit sodomy or buggery, or if any person shall wickedly and unlawfully solicit and inette, and endeavor to persuade another, to permit and suffer such per- son to commit sodomy or buggery with him, such person shall be guilty of a mis- demeanor, and being convicted of an assault with the intent aforesaid, or of so inciting another to suffer the act of sodomy or buggery to be committed with him, shall be sentenced to pay a fine not, exceeding three hundred dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three ears. _\ Szor. 92. It shall not be necessary in any case of rape, sodomy or carnal abuse of a female child, under the age of ten years, to prove the actual emission of seed, in order to constitute.a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only. Summary Conbictions, I. Requisites of a summary conviction. III. A form of general record of conviction. I. Judicial decisions. I. 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 law, 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 oe dispense with the form of stating them. 1 Burr. 613. 4 Burr. 2281. 1 ay 857. But though the courts are strict in forming their judgment upon convictions, they will not always be astute in finding objections to them. 1 Ld. Raym. 581. 2 T. R. 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 Str. 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 oath, it should be so stated in the conviction. Some- times, where the offence is an invasion of private property, a complaint from the vwner, 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 SUMMARY CONVICTIONS. 668 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 witness is not the same person, it having been settled that the informer cannot be a witness where he is entitled to any part of the penalty. Fuurthly, 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 Salk. 474. 1 Str* 261, 443, 711.) Fifthly, 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 informa- tion material. However, the particular day need not be mentioned, provided the days are mentioned between which the fact is charged 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. 3869. 1 Ld. Raym. 581. 10 Mod, 248. 11 H.521.) Seventhly, the place where the offence was committed must be inserted, that it may appear to be within the jurisdiction of the magistrate before whom the information is laid. (2 Ld. Raym. 1220.) Fighthly, the information must contain an exact description of the offence. The best general rule for deseribing the offence is to pursue exactly the words of the statute. 11 H. 521. But the rule admits of many modifications and exceptions. 2 Burr. 679. 1 T. R. 222. 1 Ld. Raym. 581. 2. P. 265. Where a statute expresses more offences than one in the disjunctive, though in the same sentence, you may convict on either. 1 Str. 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 expressed in a conviction. (2 Burr. 679.) Also, the number and nature of things taken, destroyed, 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 jajured, as when the conviction is upon a statute against the robbing of orchards, cutting of trees, &c., the number of trees cut should be mentioned. 2 Ld. Raym. 900. 5 Co. 34. 2 Str. 900. 2 P. 480. 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 Ld. 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 Ld. Raym. 1546. The party ought, in point of fact, to be summoned. In the case of The King ». Venables, “the court were unanimously of opinion that the party in those cases ought to be 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 Str. 630. 1 Park. Cr. R. 95. 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, C. J., delivered the resolution of the court. “We are all of opinion 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 justices always requires the party changed 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 come nor send a sufficient excuse, th> magistrate may proceed to judgment. If this was not to be allowed, the conse quence would be that the offender would esca . :npunished because he would never 670, SUMMARY CONVICTIONS. appear purposely to be convicted, and that would be to make the execution of the law depend on the will of the offender.” 1 Str. 44. cette 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 directs 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 defect 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 qualification 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 different 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 given in the presence of the defendant, that it may appear he has had the - benefit of a cross-examination. 2 Str. 1240. 3 Burr. 1786. 2 T. R. 18. The court will presume the witness to have been examined in the defendant’s presence, unless the contrary appear. 3 Burr. 1786. 2 T. R. 18. Even if it shall appear, on the conviction, that the evidence was not given in the defendant’s presence, yet if he confess the charge that irregularity is cured. 1 T R. 320. A third rule with regard to the evidence, is, that it must be of a fact prior to, or existing.at, the time of the information, and not of a fact subsequent to it. 1 Ld. Raym. 509. a uth 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 jurisdiction of the magistrate convicting. 1 T. R. 241. 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 offence. 1 Bay 357. 2 Seld. 827. 2 P. 265. In setting forth the act or acts of the defendant that constitute the offence, the evidence 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 offence, 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. 2 T. 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 Park. Cr. R. 95. 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. 562. ° On the other hand, 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 2 a a : ee hacer eae bed offence,” but if (which the court seemed to oubt) both offences might have been included ino icti been convicted of both. 1 T. R, 249. Do rr Sa ae ene The second and last branch of the judgment is a declaration of the forfeiture or pee ne sieve ek of the sum forfeited, in case the statute so irects. is declaration is held to be a necessary par icti ; 378. 2 Str. 858. 2 Burr. 1163. oe ae As to. the distribution of the forfeiture, it should seem there need not be any eae the justice, where the statute expressly gives it, in certain proportions. 1 alk. 388, But where justices are required, by a penal statute, to distribute the penalty, on conviction, amongst certain persons, according to their discretion, an adjudication SUMMARY CONVICTIONS. 671 that the forfeiture be disposed of “as the law directs,” is bad, for in such cases the justice or justices should adjudge what the several proportions shall be. 2 T. R.96. II. 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 D. 266. 3 Y. 475. Where a return to a certiorari stated that the defendant was summoned to answer, &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 [ bg part of the charge judgment was given, the return was held bad. I . 471. Where a form of summary conviction is peremptorily prescribed, it must be exactly followed; but if the provision is merely directory, and the conviction con- tains everything required by the form given, it will not be vitiated by unnecessarily stating more than is required. 1 Ash. 410. Where no statutory form of conviction is given, and the proceedings are accord- ing to the course of the common law, every positive ingredient must be repeated in proof, and is not to be taken by reference merely to the charge. Ibid. The form of conviction, given by the 4th section of the act 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. Ibid. 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. Ibid. When 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 like amount are recoverable, 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. 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 inflicted, but also the alternative duration of imprisonment; and if it do not, the proceedings are void, and the defendant cannot be held in prison. 3 P. L. J. 59. . A summary conviction must agree with, and cannot exceed the charge in the information. Several offences may be contained in one conviction. Ibid. 265. Where the information or complaint, in a case of summary conviction, is so specific as to give the defendant notice of the substance, time and place of the offence charged, it is sufficient. Any indefiniteness in the information or summons Z cured, by the defendant appearing and going on to trial without objection. 11 . 621. If the record of conviction set forth a definite offence, it is not vitiated by the fact that the same offence is indefinitely charged in the information on which the writ issued. Ibid. . The judgment of the court of common pleas, on a certiorari to a summary con- viction by a justice of the pedce, may be reviewed on writ of error in the supreme court. Ibid. III. A FoRM OF GENERAL RECORD: OF CONVICTION. BUCKS COUNTY, ss. Br IT REMEMBERED, that on the 26th day of April, a. p. 1860, 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 township of Falls, in the said county, on the 20th day of April last past, at the township of Bristol 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 provided. And afterwards, upon the 2d day of May, in the year afore- said, at Bristol, in the county of Bucks aforesaid, the said E. F., having been previously 672 SUMMONS FOR DEBT. summoned to appear before me, the said justice, upon the said 2d day of May, in the year aforesaid, at ten of the clock in‘the forenoon of that day, at my office, in Bristol, to answer the matter of complaint contained in the said information, he, the said E. F., ap- pears 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 the said E. F., on the 20th day of April last past, at the township of Bristol, 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, ad- judged by me, the said justice, that the said E. F., according to the form of the act of general assembly aforesaid, be convicted, and he is accordingly convicted, of the offence charged upon him by the said information. And I do hereby adjudge that the said E. F., for the said offence, hath forfeited the sum of ten dollars, lawful money of the United States, to be distributed 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. v. 1860. J. R., Justice of the Peace. [szat.] Summons for Debt, Ke, I. When a summons may issue. IV. When an attachment may issue against II. How the justice should issue the sum- a defaulting witness. 7 mons. V. Summonses in debt or demand, in trover III. How to serve and make return of the and conversion, and in damages. service of a summons, &c. I. OF Issuing A SUMMONS. _ ON complaint made in relation to any demand within the jurisdiction of the jus- tice, he may issue process. Hdving ascertained that the complaint is cognisable 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, yct if he be found within the jurisdiction of the magistrate, and the process be legally served and returned, it is the duty of the magistrate to act upon it, in the same manner, and the proceedings will be equally valid, as if the defendant were a resident of the district in which the justice resides. II. OF FILLING Up THE SUMMONS. 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 beige by (haa Fa ses a partners in trade, it should read, ‘sum- mon ki. H. an . H., trading under the firm he 3 K., trading under the firm of J.& K.” a greene a een 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 Q. 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 ina similar manner. If the suit be brought by an individual, against husband and wife, the debt : SUMMONS FOR DEBT. 673 having been contracted by the wife before her marriage, the summons should read “summon U. V. and W. V., his wife, late W. X., to answer Y. Z.” The summons must fix a certain time for the appearance of the defendant to answer, which, by the act of 1855, may be between two designated hours of the day, atter the lapse of which time, the defendant is in default, and the justice may proceed ex parte. 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, &O. The remarks about to be made in relation to this process and its service, apply with equal force to every description of summons, scire facias and subpcena. 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 deliver to the defendant a copy of the summons, without reading, or saying anything 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 summons, 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] dwelling-house, in the presence of one or more of his family, or neighbors, 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 scrupulous of taking an oath, affirm] to the correctness of the copy. He must be particular where he leaves the copy. It must be left “at the dwedl- ing-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 ‘“ dwelling-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 ne right to depute another to perform this duty. He may, at the request and risk of the plaintiff, give, on the back of a warrant, a special deputation to another persom 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. ° It must be left at the dwelling-house of the defendant, in the presence of “one or more of his family or neighbors.” 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 be one of his family, or one of his neighbors. It must be left at the dwelling-house, not at the store, mill or work-shop of the defendant, “at least four days before the time of hearing” at the office of the justice. : Having attended to these simple but indispensable particulars, in the service, the constable must attend to the return which he is tq 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 neigh- bors,] as the case may be. Signed, D. C., constable, July. 4th 1862. When there are the names of more than one person in the process, who. are to. he 43 x 674 SUMMONS FOR DEBT. summoned, it is the duty of the constablé to serve all the persons named, if he can, and to indorse the result of his inquiries on the summons or subpoena. As thus: A summons is issued against A. B., OC. 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; on C. D., by leaving a copy of the within writ at his dwelling-house, in the presence of one of his family; the other defend- ant, E. F., not found. G. H., constable, July 4th 1862.” : 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 subpeena, if made and attested as above laid down, is to be regarded as sufficient for all purposes to the parties who may have issued it, save only that no attachment may issue against a defaulting witness, until it have been duly proved that the subpoona 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 title “Attachment,” for a witness. V. Copy oF A SUMMONS IN DEBT OR DEMAND. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Fifth Ward, or to the next Constable of the said City, most con- venient to the defendant, greeting: You are hereby commanded to summon Timothy Holdfast to be and appear on the third day. of December 1861, between the hours of 9 and 10 o’clock in the forenoon, before John White, an alderman in and for Fifth 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. Witness 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 sixty-one. i Joun Ware, Alderman. [sEat.] The alderman’s office is No. 404, Library street. SUMMONS IN TROVER AND CONVERSION. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of the Fifth Ward, or to the next Constable of the said City, most con- venient to the defendant, greeting: You are hereby commanded to summon James,Tind to be and appear on the third day of December 1860, between the hours of 11 and 12 o’clock at noon,. before John White, an alderman in and for Fifth Ward, in the said city, to answer John Lost, in a plea of trover and conversion, for damages 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 year of our Lord one thousand eight hundred and sixty. Joun Waite, Alde 4 : The alderman’s office is No. 404, Library street. ; ee nee SUMMONS IN TRESPASS FOR DAMAGES. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, . To the Constable of Fifth Ward, or to the next Constable of the said City, most conve nient to the defendant, greeting: You are hereby commanded to summon Mark Force to be and appear on the sixth d of December 1860, between the hours of 8 and 9 o’clock in the Treioot, before Tots White, an alderman in and for Fifth Ward, in the said city, to answer Peter Resist, of a plea of trespass, brought for the recovery of damages, for injury done or committed by the defendant, on the real or personal estate of the plaintiff, not exceeding one hundred dol- SUNDAY. 675 lars. Witness our said alderman, at Philadélphia, who hath hereunto set his hand and seal, the first day of December, in the year of our Lord one thousand eight hundred and sixty. , Joun Wurtz, Alderman. [szat.] The alderman’s office is No. 404, Library street. SUMMONS FOR A PENALTY. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of Fifth 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 1860, between the hours of 10 and 11 o’clock in the forenoon, before John White, an alderman in and for Fifth Ward, in the said city, to answer Jonas Trusty in a plea of debt, for a penalty, not exceeding one hundred dollars. Witness our said alderman at Philadelphia, who hath hereunto subscribed his name, and affixed his seal, the first day of December, in the year of our Lord one thousand eight hundred and sixty. Joan Waits, Alderman. [szat.] The alderman’s office is No. 404, Library street. Sunday. I. No person shall be arrested on Sunday IV. Sale of liquors punished. but for felony, treason or breach of V. Judicial authorities and decisions. the peace. VI. Of contracts made on Sunday. II. Drinking in ale-houses, &c., forbidden. VII. Breach of the Sabbath. ° III. Worldly employment prohibited. I. Act of 1705. Purd. 924. Szor. 4. 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 to answer damages to him for doing thereof, as if he or they had done the same with- out any writ, precept, warrant, order, judgment or decree at all. II: Szor. 5. All persons 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 office, 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 the peace, who may commit such offenders to the stocks, or bind them to their good behavior, as to him shall seem requisite. IYI. Acr 22 Aprin 1794. Purd. 924. Szcr. 1. 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 four dollars,(@) (a) Increased to $25 in Allegheny county, by act 26th April 1855. Purd. 924 n. For form of conviction see ‘‘ Profaneness.” 676 SUNDAY. 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: Provided 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, commonly 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. IV. Acr 26 Fesruary 1855. Purd. 925. Sct. 1. It shall not be lawful for any person or persons to sell, trade or barter in any spirituous or malt liquors, wine or cider, on the first day of the week, commonly called Sunday; or for the keeper or keepers of any hotel, inn, tavern, ale-house, beer-house, or other public house or place, knowingly to allow or permit any spiritu- ous or malt liquors, wine or cider, to be drank on or within the premises or house occupied or kept by such keeper or keepers, his, her or their agents or servants, on the said first day of the week. Sxcr. 2. Any person or persons violating the provisions of the foregoing section, shall for each and every offence, forfeit and pay-the sum of fifty dollars, one half of which shall be paid to the prosecutor, and the other half to the guardians of the poor of the city or county in which suit is brought, or in counties having no guard- ians of the poor, then to the overseers of the poor of the township, ward: or borough in which the offence was committed; to be recovered before any.mayor, alderman, burgess or justice of the peace, as debts of like amount are now by law recoverable, in any action of debt brought in the name of the commonwealth, as well for the use of the guardians of the poor (or for the overseers of the poor of the township, ward or borough, as the case may be) as for the person suing: Provided, That when any prosecutor is himself a witness, on any trial under the provisions of this section, then the whole penalty or forfeiture shall be paid to the guardians or overseers as aforesaid: And provided further, That it shall be a misdemeanor in office, for any such mayor, alderman, burgess or justice of the peace, to neglect to render to the said guardians of the poor and prosecutor the amount of such penalty, within ten days from the payment of the sime. Sect. 3. In addition to the civil penalties imposed by the last preceding section, for a violation of the provisions of the first section of this act, every person who shall violate the provisions of that section, shall be taken and deemed to have com- mitted a misdemeanor, and shall on conviction thereof, in any criminal court in this commonwealth, be fined in any sum not less than ten, nor more than one hundred dollars, and be imprisoned in the county jail for a period not less than ten, nor more than sixty days, at the discretion of the court. V. 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 corruption 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 civilinstitution. 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 labor, without any stated times of recalling them to the ae of their Maker. 4 Bl. Com. 64. Legal process cannot be issued on a Sunday, except for treason, felony or breach of the peace. 18. & R. 851. 1 West. Leg. Obs. 276. Tt seems, that es criminal process may be executed on a Sunday, as every crime involves a breach of the peace. See ante 159. SUNDAY. 677 A judgment is not erroneous because the verdict on which it was rendered was delivered on Sunday. 3 W. 56. Lewis’ Or. L. 422. A principal may be taken up by his bail on Sunday. 1 Atk. 239. Parliament may sit on Sunday. 1 BI. R. 499. VI. OF CONTRACTS MADE ON SUNDAY. A contract made on Sunday is void. 1 Br. 171. 6 W. 231. 3 W. & SB. 446. A promissory note given on Sunday is void, and no action can be sustained upon it. 6 W. 231. 5 Ala. 467. 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 plaintiff’s action. 1W. & 8. 477. Under the act of the 22d 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 Saturday for the hire of horses to be used on an excursion of pleasure on Sunday, is void, and plaintiff cannot recover. 2 M. 402. 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 CovuLtsr, J. i. A bond executed on Sunday is not void at common law, but by reason of the statute. 3 W. & S. 444. 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 Barr 448. Whether a marriage contract executed on Sunday be legal, guere? 2 H. 417. VII. BrEeAcH OF THE SABBATH. The proper mode of procedure, under the act of 22d April 1794, against persons who perform worldly employment on Sunday, is by conviction, and not by a qui tam action. 38. & R. 48. The offence of working on Sunday does not amount to a breach of the peace. 1 Thid. 350. 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. 1 Ibid. 347. 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. Travelling is not within the prohibition of the act of 1794. 5S. & R. 302. One penalty only can be incurred in one day by exercising one’s business on a Sunday. Cowp. 640. 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 deter- mination to resist by force any effort that may be made to remove them or prevent their so doing, they will be guilty of riot. 6 P. L. J. 223. Bright. R. 44. It seems that the unnecessary performance of secular labors on Sunday, in such a way as to disturb the worship of others, is indictable in Pennsylvania. Ibid. The performance of worldly business on Sunday, does not amount to a breach of the peace; unless it be carried on in public, and in.such a manner as to disturb those who keep it as a day of rest and religious observance. 1 Phila. R. 460. The crying of newspapers in the public streets on Sunday is a breach of the peace. Ibid. Driving a public conveyance for the transportation of passengers, is not a work of necessity, within the exception of the act of 1794. 10 H. 102. The running af passenger cars on a city railroad on Sunday, by reason of the noise and disturb- 678 SURETY OF THE PEACE. ance accompanying it, may amount to a breach of the peace. 2°Gr. 506. See 3 Phila. R. 509. ‘The travelling which is not forbidden by the statute is that by private convey- ance; the running of public conveyances is within the prohibition. 10 H. 102. The sale of liquor by an innkeeper, to a sojourner, on Sunday, is within the prohibition of the act of 1794. 9 H. 426. But such offence is not indictable as the keeping of a tippling or disorderly house; it is only punishable under the act of 1794. 10 C. 86. It is not a violation of the act of 1794 for a hired domestic servant to drive his employer’s family to church, on the Lord’s day, in the employer’s private convey- ance. 10 C. 898. On no individual is the obligation stronger than on a magistrate, to promote, by all due means, the influence of religion. The course of his duty presents many occasions in which he may properly diffuse a sense of piety, and a detestation of vice. He should uniformly administer oaths with that solemnity and respect which the important nature of the ceremony demands; and he should take pains to instruct the careless and profligate with respect to the obligation incurred, the heavy guilt of perjury, and the impossibility of escaping future punishment by evasive acts or mental equivocation. It depends upon magistrates principally to enforce those laws which are intended to suppress crimes in direct disobedience to the plainest precepts of the gospel, namely, profane swearing, breach of the Sabbath and drunkenness. This duty is particularly confided to them—and it is impossible to reconcile the neglect of it with that obligation and responsibility which attached to them the moment they qualified. But if, instead of punishing such crimes, magistrates should themselves commit them, and thereby extend their pernicious influence through the community, how severely ought such conduct to be reprobated! how deplorable must be the condition of a country whose morals are aa to the safeguard of such faithless agents! 1 Carolina Law Reposi- tory . —— Surety of the Beace. I. The law and judicial authorities. II. Form of a warrant and commitment, I. Aor 31 Marcu 1860. Purd. 250. : Sror 6. If any person shall threaten the person of another to wound, kill or destroy him, or to do him any harm in person or estate, and the person threatened shall appear before a justice of the peace, and attest, on oath or affirmation, that he - believes that by such threatening he is in danger of being hurt in body or estate, such person so threatening as aforesaid, shall be bound over, with one sufficient surety, to appear at the next sessions, according to law, and in the mean time to be of his good behavior, and keep the peace toward all citizens of this commonwealth. If any person, not being an officer on duty in the military or naval service of the state or of the United States, shall go armed with a dirk, dagger, sword or pistol, or other offensive or dangerous weapon, without reasonable cause to fear an assault or other injury or violence to his family, person or property, he may, on complaint of any person having reasonable cause to fear a breach of the peace therefrom, be required to find surety of the peace as aforesaid. : 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 obligation 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, a instance $100,] 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 rey SURETY OF THE PEACE. s 679 keep the peace either generally towards the king and all his liege people, [to all the citizens of the commonwealth, ] and particularly also with regard to the person who craves the security. 4 Bl. Com. 252. Surety of the peace is demandable of right by any individual who will make the necessary oath, dd B. 102 n.,) 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.” Surety of the peace ought not to be granted on account of a past beating, unless there be fear of future danger; the remedy in such case being by action or indict- ment. 1 Ash. 140. A committing magistrate has no authority to bind a person to keep the peace, or for his good behavior, longer than the next term of the court. 2 P. 458. ' Surety for good behavior may be ordered by the court, after the acquittal of a prisoner, in such sum, and for such length of time as the public safety requires. 2 Y. 437. 10 Barr 339. 2 Hayw. 73-4. See 12 Eng. L. & Eq. 462. II. Copy oF A WARRANT FOR THREATS. BRADFORD COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of S——, in the County of Bradford, greeting: Wuersas, J. D., of the township of H. , in the county of Bradford, tavern-keeper, hath this day made oath before J. R., Esquire, one of the justices of the peace in and for the county of Bradford, that R. R., of the township of S——, in the said county, black- smith, hath threatened to do him harm in person or estate, and that, by reason of such threatening, he believes 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. to answer the said complaint. Witness the said J. R., at S—— township aforesaid, the first day of Oétober, in the year of our Lord one thousand eight hundred and sixty. J. R., Justice of the Peace. [szat.] COMMITMENT. BRADFORD COUNTY, ss. The Commonwealth of Pennsylvania, To the Constable of the Township of H——, in the County of Bradford, and to the Keeper ‘of the Common Jail of the said County, greeting: Wuersas, 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 a warrant issued 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 towards the said J. D.: 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 be otherwise legally discharged. Witness the said G, H., at H—— township, aforesaid, the fifth day of October, in the year of our Lord one thousand eight hundred and sixty. G. IL, Justice of the Peace. [szau.] “ [ 680 } Swine. I. To be yoked, &c., if at large. Applica~ IV. Regulations in certain towns. tioa may be made to a justice. V. The act extended. II. Who shall advertise the swine. VI. Judicial decisions and forms. III. Proceedings if no owner appear. J. Act or 1705. Purd. 932. Sxcr. 1. 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 ; therefore 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 breaking 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 thereof, and being by him legally attested, that the said swine were taken as aforesaid, without yokes or bows and rings, the said justice shall immediately appoint and order two indifferent persons of the neighborhood, to view and make a jast 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 forfeit 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 shall be and remain in the said owner or possessor of land as afore- said, to his and their own proper use for ever. II. Sxor. 2. 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 num- ber, 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 first deducting out of the same two shillings 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. Szor. 3. 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. Sgor. 4. 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 10 May 1729. Purd. 982. Sror. 1. 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 SWINE. 681 river, shax be in foree and extended throughout the province [commonwealth] of Pennsylvania.(a) VI. Unless swine be running at large, they cannot be proceeded against under the act of 1705, and the appraisement must so state the fact; swine escaping from tid owner and caught on another’s land are not liable to be killed. 108. & R. INFORMATION, ON OATH OF THE TAKER, DAUPHIN COUNTY, ss. Berore me, one of the justices of the peace in and for the county of Dauphin, person- ally 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, ¢hree hogs and two shoats 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 1860. Before me, J. B. APPOINTMEN? OF THE APPRAISERS. To J. D. and R. R., of the Township of W , in the County of Dauphin, greeting: Wuerzas, 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 Dauphin, that, upon the fifteenth day of December, instant, he found upon his lands, situated 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, 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 sixty. ‘ J. P., Justice of the Peace. [szau.] RETURN OF THE APPRAISERS. To J. P., Esquire, one of the justices of the peace in and for the County of Dauphin: In obedience to your order of the seventeenth instant, we mow 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 shoats are black and white mixed: and that they are worth eleven dollars in the whdle, that is to say, nine dollars for the three hogs, and two dollars for the two shoats. Witness our hands, December the nineteenth, a. pv. 1860. 2 E PUBLICATION TO BE MADE BY THE JUSTICE. Pustic 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 Dauphin, 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 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, he the said deponent did kill and take, (or drive and carry away.) In porsecee whereof, I the said justice did, by my warrant, appoint and order J. D. and R. R., two indifferent persons of the neighborhood, that is to say, of the same township, 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 conveniently it might be done after such appraisement. Whereupon the said J. D. and R. R. did, upon the nineteenth day of December, instant, make return, that they had viewed the said fogs and shoats, and found the number of the former to be three, and that of the latter zwo—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 shoats are black and white mized—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 (a) This act of 1729 was repealed as to the 27th March 1784. 2 Sm. 96. It was extended. counties of Bedford, Northumberland, West- to the counties of Tioga and Potter by act 18th moreland, Washington and Fayette, by act April 1853. P. L, 550. 682 TELEGRAPHS. ' whereas it is directed that ‘one moiety or half the value of all such hogs and shoats as may-be 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 thereupon the property of all such 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 pad unto me, the said justice, the sum of five dollars and fifty cents, being one moiety or half the appraised value of such hogs and shoats, so found as afore- said, for the use of 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 dol- lars 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 1860. J. P., Justice of the Peace. —~——. Celeqraphs. I. Provisions of the Penal Code. II. Judicial decisions. I. Acr 31 Maron 1860. Purd. 280, 246. Seor. 72. If any superintendent, operator or other person, who may be engaged in any telegraph line, shall use, or cause to be used, or make known, or cause to be made known, the contents of any dispatch, or any part thereof, sent from or received at any telegraph office in this commonwealth, or in anywise unlawfully expose another’s business or secret, or in anywise impair the value of any correspondence 80 sent or received, such person shall be guilty of a niisdemeanor, and, on convic- tion, be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment not exceeding six months, or both, or either, at the discretion of the court. Secr. 176. If any person, whether an operator in any telegraph office or other- wise, shall knowingly send or cause to be sent, by telegraph, any false or forged message as from such office, or as from any other person, knowing the same t be false, forged or counterfeited, with intent to deceive, injure or defraud any indi- vidual or body corporate, such offender, on ‘conviction, shall be guilty of a misde- meanor, and be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding one year. II. The 72d section of the Penal Code only makes the offender liable where he unlonyfully exposes the secrets of the telegraph office; when it is done wantonly or voluntarily ; it does not apply to cases where such disclosures become material in a court of justice. 2 P. 274. Telegraph companies holding themselves out to transmit dispatches correctly, are bound to do so, or respond in damages, unless the causes of failure are beyond their control. 1 Am. L. R. 685. A telegraph company is liable in damages, to the recipient of a message, for the misfeasance of their agent, in sending a different message from that addressed to him, 11 C. 298. If a telegraphic message be sent, subject to the express condition, that the com- pany will not be liable for mistakes arising from any cause, unless the message be repeated back, for which a higher rate of compensation is charged, the sender is bound by his contract, and cannot recover unless he bring himself within the terms of the company’s undertaking. 6 Am. L. R. 448. 33 Eng. L. & Eq. 180. But the company is not excused from liability to a third person, for damages sustained by the negligent transmission of an erroneous message, by the fact that the sender did not pay for its being repeated back; especially, where the mistake consisted in transmitting a different message from the one ordered. 11 C. 298. [ 683 } Tender, Judicial exposition of the effects of a tender made for moneys due. In all cases where a tender shall be made, and full payment offered, by discount 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 duth refuse the same, and yet after- wards will sue for the debt or goods as tendered, the plaintiff shall not recover any costs in such suit. Purd. 331. Tender, the offering of money or any other thing in satisfaction; or circumspectly to endeavor 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. Termes de la Ley 557. A legal tender can only be made in the lawful money of the United States (gold or silver, or paper money made a legal tender by act of congress), 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 8..& R. 326. 1 RB. 415. See 2 Greenl. Ev. § 601. 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 D. 190. 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. 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 plead the tender, and bring the money into court. 108. & R. 14. If a man be bound to doa thing, he must either do it, or offer to do it; if no objections are made, he must show that he made the tender in a regular manner; but this is not necessary if the other party, by his conduct, dispense with a regular tender by a previous refusal to accept it. 1 Pet. C. C. 24. A party who has a right to object to a tender, is not precluded from availing himself of this objection, by the circumstance that his motive for objecting was, not the tender, but a desire on other grounds to get rid of the contract. 5 8. & R. 323. A deposit in bank of funds to meet a particular demand is equivalent to a ten- der. 5 Wh. 503. A contract for the delivery of 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 can afterwards be maintained against the debtor on the contract. 5 W. 262. To render a tender effectual and legal, it must be unqualified, and not be fettered with any condition. Gow’s Rep. 214. 4 Campb. 156. 2 0. & P. 50. 7 D.& R. 119. A tender of a quarter’s rent, coupled with a demand of a receipt to a particular day—the contest between the parties being whether one or two quarters’ rent were due—is not a valid tender. 5 M. G. & S. 428. On a contract executed, where a debt is due to a party without the performance of anything on his part, the debtor, in order to discharge himself from an action for it, must show an actual tender, which must be pleaded at an early stage in the cause, and the money brought into court. 3 C. 294. Defendants executed a bond, with warrant of attorney, for $28,000, payable “ in specie, current gold and silver money of the United States,” with a proviso “ that no existing law or laws, and no law or laws which may be hereafter enacted, shall operate or be construed as operating to allow payment to be made in any other money than that above designated ;’’—“ the said obligors expressly waiving the bene- fit derived or to be derived, from such law or laws:” Held, that the debt was pay- able in any money which the law had made a legal tender. 19 Leg. Int. 244. [ 684 J Threatening Letters. I. Provisions of the Penal Code. II. Offence at common law. I. Acr 31 Marcon 1860. Purd. 221. Scr. 23. If any person shall knowingly send or deliver or utter to any o:her person, any letter or writing, accusing or threatening to accuse either the person to whom such letter or writing shall be sent or delivered, or any other person, of any crime or misdemeanor punishable by law with imprisonment at labor, with a view or intent to extort or gain, by means of such threatening letter or writing, any pro- perty, money, security or other valuable thing, from any person whatsoever; or shall send, deliver or utter any letter or writing threatening to kill or murder any other person, or to burn ov destroy any coal-breaker, house, barn or other building, or any rick or stack of grain, hay or straw or other agricultural produce ; every such offender shall be guilty of a misdemeanor, and, on conviction, be sentenced to an imprisonment by separate or solitary confinement at labor, or by simple imprison- ae not exceeding three years, and to pay a fine not exceeding one thousand ollars. II. The extortion of money by actual duress or by threats of such a nature as are calculated to overcome a man of ordinary firmness, is an indictable offence at common law; but what are such threats as a man of ordinary firmness ought to resist, is generally an embarrassing question, on the trial of a common law indict- ment for such offence. This section is a consolidation of the English statutes upon the subject, and obviates the difficulties which beset common law proceedings in such cases. The decisions on the English statutes will be found in East’s P. C. ch. 23. Timber, I. Provisions of the Penal Code. II. Civil remedies. I. Act 31 Marca 1860. Purd. 242. Scr. 152. If any person shall cut down or fell any timber tree or trees, knowing the same to be growing or standing upon the lands of another person, without the consent of the owner; or if any person shall purchase or receive any timber tree or trees, knowing the same to have been cut or removed from the lands of another, without the consent of the owner thereof; or who shall purchase or receive any planks, boards, staves, shingles or other lumber made from such timber tree or trees, so as aforesaid cut or removed, knowing the same to have been so made; the person so offending shall be guilty of a misdemeanor, and, being thereof convicted, shall be sentenced to pay such fine, not exceeding one thousand dollars, or to such imprisonment, not exceeding one year, as the court, in their discretion, may think proper to impose. Timber trees are such as are used, not only for building purposes, but in the mechanical arts. Lewis’ Cr. L. 506. The act of assembly extends as well to unscated as to seated lands; both are alike within its protection. 2 J. 195. In a prosecution for cutting timber trees, the title of the prosecutor to the land on which the timber was cut, is not in question, it is enough that he is in possession under a claim of title. Bro. Appx. 25. A tenant under a lease for years may be described as the owner. Lewis’ Cr. L. 505. Before a party can be made to suffer criminally, under this section, it must be TIMBER. 685 shown that the act was done knowing the timber to be growing. on the land of ° another. Knowledge is an ingredient of the offence. 90.490. But it is unneces- sary to prove that the defendant knew who was the owner. Lewis’ Cr. L. 505. The act of 1833, which does not appear to be repealed ‘or supplied, in this respect, by the revised Penal Code, expressly provides that it shall be sufficient to convict the offender, “that he knew the lands on which the said tree or trees were growing did not belong to him or to any person by whom he was authorized.” Purd. 961, n. II. Act 29 Marcu 1824. Purd. 961. Srcr. 3. In all cases where any person, after the said first day of September, shall cut down or fell, or employ any person or persons to cut down or fell any tim- ber tree or trees, growing upon the lands of another, without the consent of the owner thereof, he, she or they so offending, shall be liable to pay to such owner double the value of such tree or trees so cut down or felled; or in case of the con- version thereof to the use of such offender or offenders, treble the value thereof, to be recovered with costs of suit, by action of trespass or trover, as the case may be; and no prosecution by indictment shall be any bar to such action. Act 8 Aprit 183%. Purd. 961. Secr. 10. In all cases in whidh suits s «tl be brought before a justice of the peace, to recover damages for the cutting of timber trees, und-x and by virtue of the 8d section of the act of the 29th of March 1824, and the defendant shall offer to make oath or affirmation, agreeably to the 2d section of tue act of the 22d of March 1814, that the title to the land will come in question, the justice shall not receive the same until the defendant shall enter into recognisance before him, with one or more sureties, in such sum as the justice may direct to pay to the plaintiff, such sum as shall be recovered against him in the said suit, when removed as here- inafter directed, together with costs; and on the said oath or affirmation being made, instead of dismissing the said suit, the justice shall transmit a copy of the record thereof, and of all the proceedings therein, to the prothonotary of the court of com- mon pleas of his county, who shall enter the same on his docket, and the said suit shall then be proceeded in, in the said court, as if originally rightly brought there. Act 1 Apri 1840... Purd. 961. Szct. 1. All and singular the penalties and provisions of the act, passed the 29th day of March 1824, shall be, and they are hereby made applicable to any person or persons who shall purchase or receive any timber tree or trees, knowing the same to have been cut or removed from the lands of another person without the consent of the owner or owners thereof; or who shall purchase or receive any planks, boards, staves, shingles or other lumber made from such timber tree or trees, so as aforesaid cut or removed, knowing the same to have been so made; andin all cases of suits brought before a justice of the peace under the 3d section (of the act) of the 29th day of March 1824, to which this is a supplement, against any person or persons for publishing or receiving such timber tree or trees, or lumber made therefrom, and the defendant shall offer to make oath or affirmation, agreeably to the second section of the act of the 22d of March 1814, that the title of land will come in question, the same course of proceeding shall be had, as is pro- vided in and by the 10th section of the act of the 8th day of April 1833. The action of trespass to recover treble damages, given by the act of 1824, for cutting timber trees, can be maintained only by the owner of the land. 4 W. 221. The party injured may sue either in trespass or trover; if he bring trover he waives the trespass to his land, and is entitled to recover treble the value of the trees cut and taken away. 4 H. 254. To enable the party injured to recover treble damages, under the 3d section of the act of 1824, it is only necessary to prove that the timber was cut without the consent of the owner; knowledge on the part of the defendant, that the timber was growing upon the lands of another, is only requisite in a criminal prosecution. “9 OQ. 489. But under the act of 1840, a purchaser of timber cut by a trespasser is not 686 TIME. 1 liable for treble damages, unless he had knowledge of the trespass committed in obtaining it. Ibid. san A recovery of treble damages in an action of trespass for entering the plaintiff’s land and cutting his timber, cannot be sustained unless the record show that the action was brought under the statute. 12 C, 820. _ To oust the jurisdiction of the justice under the ‘act of 1833, there must be a positive affidavit that the title to the land will come in question; it is not enough to swear to the best of the deponent’s knowledge and belief. Carpenter v. Koons, Com. Pleas, Phila., 29.September 1849. MS. Unless such affidavit be made, the justice’s jurisdiction is not ousted, although it subsequently appear that the title to the land will come in question ; it is too late to make the objection after the case comes into the common pleas by appeal. & H. 464. Time. « Judicial expositions as to the mode of computing time. In all contracts or transactions between man and man, months are to be considered calendar, and not lunar months. 6 8. & R. 539. Thus, a note payable ‘two months after date,” is not due at the expiration of two lunar months. Ibid. 15 Johns. 119. So the word “month” in an act of assembly has uniformly been construed te mean a calendar month. 2 D. 302. 4 Ibid. 144. 38. & R. 184. Months are calculated either as Junar, consisting of twenty-eight days, thirteen of which make a year, or as calendar months, of unequal lengths, whereof in a year there are only twelve. 2 BI. Com. 142. A person is of full age the day before the twenty-first anniversary of his birth- day. 1 Ibid. 462. Whenever, by a rule of court, or an act of the legislature, a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day on which the rule is taken, or the decision made, is excluded ; and if one or more Sundays occur within the time, they are counted, unless the last day falls on a Sunday, in which case the act may be done on the next day. 3 P. R. 200. 4 Barr 516. 5 C. 524-5. The three days’ grace allowed in this country on bills of exchange and promissory notes are reckoned exclusive of the day on which the bill or note falls due, and inclusive of the last day of grace. Byles on Bills 161. The five years from the day of entry of a judgment, within which it must be revived by scire facias, are exclusive of the day on which the judgment was entered. 6 W.&S. 3877. There is no priority of lien between judgments entered on the same day; 8 P. R. 245 ; or between a mortgage entered on the same day; 10 H. 859; 12 H. 863; 1 C. 319; 2 Gr. 180; for the law does not recognise fractions of a day, unless to prevent great mischief or inconvenience. 2 Br. 19. But this principle does not apply where there has been an absolute conveyance ; in such case, to affect lands in the hands of a purchaser, the judgment must have been, not merely simultaneous with, but anterior to the conveyance; and the actual priority may be shown by parol 8 W. & 8. 307-8. 2 Gr. 130. So, it may be shown that the defendant died before the entry of the judgment. 2 Wr. 480. Mortgages entered for record oh the same day, have priority according to the time they were actually left at the office for record. Purd. 324. : Every bill takes effect as a law from the time when it is approved by the governor or president, and then its effect is prospective and not retrospective. The doctrine that, in law, there is no fraction of a day, is a mere legal fiction, and has no appli-~ TRADE MARKS, 687 eation to such a case. 2 Story 571. 1 Cal. 400. But in 20 Verm. 653; 21 Ibid. 619, this is denied to be law. The statute of 21 Hen. III., provides that, in leap-year, the 29th February and the preceding day shall be holden but for one day. Rob. Dig. 207. But this has no relation to the computation of time, when a rule or a statute fixes a certain aumber of days. 4 Barr 517. When a rule to set aside proceedings for irregularity, and to stay proceedings in the mean time, is obtained, the proceedings are suspended for all purposes, till the tule is disposed of. And therefore the time for putting in bail remains the game after the rule is discharged as it was when it was granted. 47. R. 176. A contract to complete a work by a certain time, means that it shall be done before that time. 3 P. R. 48. Grade Marks. I. Provisions of the Penal Code. III. Judicial decisions. II. Civil remedies. . J. Act 31 Marcu 1860. Purd. 246. Szcr. 173. If any person shall knowingly and wilfully forge or counterfeit, or cause or procure to be forged or counterfeited, any representation, likeness, simili- tude, copy or imitation of the private stamps, wrappers or labels, usually affixed by any mechanic or manufacturer to and used by such mechanic or manufacturer or or in the sale of any goods, wares or merchandise, with intent to deceive or defraud the purchaser or manufacturer of any goods, wares or merchandise whatsoever, such person shall be guilty of a misdemeanor, and, on conviction thereof, be sentenced to pay a fine not exceeding one hundred dollars, and undergo an imprisonment not exceeding two years. Szor. 174. If any person shall have in his possession any die, plate, engraving or printed label, stamp or wrapper, or any representation, likeness, similitude, copy or imitation of the private stamp, wrapper or label usually affixed by any mechanic or manufacturer to and used by such manufacturer or mechanic on or in the sale of any goods, wares or merchandise, with intent to use or sell the said die, plate, engraving or printed stamp, label or wrapper, for the purpose of aiding or assisting, in any way whatever, in vending any goods, wares or merchandise, in imitation of or intended to resemble and to be sold for the goods, wares or merchandise of such mechanic or manufacturer, such person shall be guilty of a misdemeanor, and, upon being thereof convicted, be sentenced to pay a fine not exceeding pne hundred dollars, and to undergo an imprisonment not exceeding one year. Sect. 175. If any person shall vend any goods, wares or merchandise, having thereon any forged or counterfeited stamps or labels of any mechanic or manufacturer, knowing the same to be forged or counterfeited, and resembling or purporting to be imitations of the sas or labels of such mechanic or manufacturer, without disclosing the fact to the purchaser thereof, such person. shall, upon conviction, be deemed guilty of a misdemeanor, and be sentenced to pay a fine not exceeding five hundred dollars. II. Act 20 Aprin 1858. Purd. 966. Sect. J. All manufacturers and venders of mineral waters and other beverages in bottles, upon which their mark or marks shall be respectively impressed, may file in the office of the secretary of the commonwealth a description of such bottles, and of the name or marks thereon, and shall cause the same to be published for six weeks, successively, in a daily, weekly or other newspaper published in the county wherein the same shall be manufactured or sold, except in the city and county of Philadelphia, where the said publication shall be made for the same time in two 688 TRADE MARKS. daily newspapers: Provided, That those manufacturers or venders of mineral waters or other beverages, who may have already complied with the provisions in regard to registry and publication contained in the sixth section of an act entitled “An act authorizing the commissioners of the incorporated districts of the Northern Liber- ties and Kensington, to open a street to be called Delaware avenue, and for other purposes,” approved the 24th day of January, Anno Domini 1849, shall not be again required to make registry or publication, and shall be entitled to all the benefits of this act. Szcr. 2. It is hereby declared to be unlawful for any person or persons here- after, without the permission of the owner thereof, to fill with mineral waters or other beverages any such bottles so marked, or to sell, dispose of, or to buy, or to traffic in any such bottles so marked and not bought by him or her 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 used, or disposed of, or bought, or trafficked in, for the first offence, and of five dollars for every subsequent offence, to be recovered before any alderman or justice of the peace, as fines and penalties are by law reco- verable, for the use of the commonwealth. Szor. 3. The fact of any person, other than the rightful owner thereof, using any such bottles for the sale therein of any beverage, shall be prima facie proof of the unlawful use or purchase of such bottles as aforesaid, and any such owner, or agent cf the owner, who shall make oath or affirmation before any alderman or jus- tice of the peace, that he has reason to believe, and does believe, that any of his bottles stamped and registered as aforesaid, are being unlawfully used, or are con- cealed by any person or persons selling or manufacturing mineral waters or other beverages, that the said alderman or justice of the peace shall, thereupon, issue a process in the nature of a search-warrant, directed to any constable, commanding him to search the premises, wagons, carts or other places of the offender or offenders, where said bottles are alleged to be, and if upon such search any bottles so marked, shall be found, to bring the same, together with the body of the person in whose possession they may be found, before said alderman or justice of the peace, there to be dealt with according to law.- III. 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 deceive, and as to induce persons to believe the defendant’s goods to be of the plaintiff’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. & 8.109. 2 Am. L. R. 681. See 3 P. L. J. 148. 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 Pick. 214. And see 3 Doug. 298. 3B. & C. 541. 5 D. & R. 292. 4B. & Ad. 410. 2M. & G. 385. ‘ “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. Ibid. 603. Where a manufacturer adopts a certain trade mark; and stamps it upon the article manufactured, he is entitled to the exclusive use of it, and a court of equity will restrain, by injunction, any other person who pirates such trade mark from using the same. 11 Paige 292. : And where the person pirates a trade mark for the fraudulent purpose of passing 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. 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 Paige 293. 2 W.& M. 1. Nor that the maker of the spurious goods, or the jobber who se'ls them to the retailers, informs those who purchase, that the article is spurious, or an imitation. 2 Sandf. Ch. R. 586. TRANSCRIPT. 689 On a bill to restrain one from the use of trade marks, the question is not whether 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 ground 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 his 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. An alien manufacturer may maintain a bill for such injunction, or an action at ud aoe a citizen of the United States using his trade mark. 11 Paige 292. 2 Dodderidge, in Southern and Howe’s case, (Cro. Jac. gt cited a case to be adjudged in 83 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. Poph. 143-4. , A court of equity will not, in a contest between persons who profess to be manu- facturers of quack medicines, interfere to protect the use of trade marks, by injunc- tio. 7 P. L. J. 176. 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. What constitutes a transcript from a justice’s another justice, and of filing a transcript . docket—of the effects of taking a tran- in the courts of common pleas. Copy of a script from the docket of one justice to transcript. 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. It shall be the duty of the justice, on demand made either by plaintiff or defendant, to make out a copy of his proceedings at large, and deliver the said copy duly cer- tified by him, to the party requiring the same, and if on such demand he shall refuse so to do, it shall be deemed a misdemeanor in office. Act 20 March 1810, § 23. Purd. 605. The prothonotaries of the respective counties shall enter on their dockets tran- scripts of judgments obtained before justices of the peace of their proper counties, without the agency of an attorney, [for the fee of fifty cents,] which transcripts the justices shall deliver to any person who may apply for the same, and which judg- ments, from the time of such entries on the prothonotary’s docket, shall bind the real estate of the defendants; but no fier? facias shall be issued by any prothono- tary until a certificate shall be first produced to him from the justice. before whom the original judgment was entered, stating therein, that an execution had issued to the proper constable as directed by this act, and a return thereon that no: goods could be found sufficient to satisfy said demand; and any justice issuing an execu- tion on a judgment removed as aforesaid, shall, on the plaintiff producing a receipt for the delivery of such transcript to the prothonotary of the county, to be entered’ of record, tax [fifty cents] upon such execution for. the prothonotary’s fees as afore- said; and no judgment, whether obtained before a justice, or in any court of record. within this commonwealth, shall deprive any person of his or her right asa free- holder longer or for any greater time than such judgment shall remain unsatisfied, any law, usage or custom, to the contrary notwithstanding. Ibid. § 10. 690 TRANSCRIPT. 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. 1B. 221. ; 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. R. 20. Saas 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 scire facias to revive the same. 3 P. R. 98. a If a judgment be rendered by a justice, for a sum beyond his jurisdiction, and a transcript of such judgment be 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. 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 facie evidence under the act of 1810, although not sworn to be a true copy. 2 P. R. 465. 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 application 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 amend- ment be refused, the supreme court will not, for that reason, reverse the judgment. 1 R. 370. ‘ After an appeal has been entered, the justice cannot grant a transcript to constt- tute a lien, according to section 10 of the act of 1810. 1 B. 224. 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. A transcript of the judgment of a 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 vrovisions of the 19th section of the act 16 June 1836. 2 W. & S. 169. TRANSCRIPT FROM THE DOCKET OF ALDERMAN WHITE. Tue Crry or PuinaDEL-| Warrant issued, September 5th 1860. A. G. Fisher, Consta- PHIA ble. Returned, September 9th 1860, on oath :—‘ I have here vs. the body of the defendant, as within I am commanded.” Samus. Lexca. Plaintiffs charge the defendant, as driver of cab No. 79, with having violated the 10th section of an ordinance intituled “‘ An Conte te te $1.50/ Ordinance for the regulation of the owners and drivers of hackney-coaches, wagons, carts and drays within the city of Philadelphia,” passed April 16th 1812, by standing with said cab in a street other than those which are aj potted for 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. w., 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. Ho.d., execution issued. Ret. Sep- tember 27th. September 12th, received a certiorari, and same asy made a return and stayed the execution. eptember 10th, Tr. for the defendant. CITY OF PHILADELPHIA, ss. I certiry, that the above is a correct transcript of the proceedings had before me, in the above suit, and of record on my docket, Wirness my hand and seal, at Philadelphia, this thirteenth day of September, in the year of our Lord 1860. JouN WHITE, Alderman in and for Fifth Ward. [ 691 ] Treason, I. Provisions of the Penal Code. II. Judicial decisions. I. Aor 31 Marca 1860. Purd. 216. Sct. 1. If any person owing allegiance to the commonwealth of Pennsylvania, shall levy war against the same, or shall adhere to the enemies thereof, giving them aid and comfort within the state or elsewhere, and shall be thereof convicted on confession in open court, or on the testimony of two witnesses, to the same overt -act of the treason whereof he shall stand indicted, such person shall, on conviction, be adjudged guilty of treason against the commonwealth of Pennsylvania, and be sentenced to pay a fine not exceeding two thousand dollars, and undergo an impri- sonment, by separate and solitary confinement at labor, not exceeding twelve years. Szor. 2. If any person, having knowledge of any of the treasons aforesaid, shall conceal, and not, as soon as may be, disclose and make known the same to the governor or attorney-general of the state, or some one of the judges or justices thereof, such person shall, on conviction, be adjudged guilty of misprision of trea- son, and shall be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceed- ing six years: Provided always, That nothing herein contained shall authorize the conviction of any husband or wife for concealing any treasons committed by them respectively. Act 18 Aprit 1861. Purd. 217. ‘ Sxct. 1. If any person or persons belonging to or residing within this state, and under the protection of its laws, shall take a2 commission or commissions from any person, state or states, or other the enemies of this state, or of the United States of America, or who shall levy war against this state or government thereof, or knowingly and willingly shall aid or assist any enemies in open war against this state or the United States, by joining their armies, or by enlisting, or procuring or persuading others to enlist for that purpose, or by furnishing such enemies with arms or ammunition, or any other articles for their aid and comfort, or by carrying on a traitorous correspondence with them, or shall form, or be in anywise concerned in forming any combination or plot or conspiracy, for betraying this state or the United States of America into the hands or power of any foreign enemy, or any organized or pretended government engaged in resisting the laws of the United States, or shall give or send any intelligence to the enemies of this state or of the United States of America, or shall, with intent to oppose, prevent or subvert the government of this state or of the United States, endeavor to persuade any person or persons from entering the service of: this state or of the United States, or from joining any volunteer company or association of this state about being mustered into service, or shall use any threats or persuasions, or offer any bribe, or hold out any hope of reward, with like intent to induce any person or persons to abandon said service, or withdraw from any volunteer company or association already organ- ized under the laws of this commonwealth, for that purpose; every person so offending and being legally convicted thereof, shall be guilty of a high misde- meanor, and shall be sentenced to undergo solitary imprisonment in the peniten- tiary, at hard labor, for a term not exceeding ten years, and be fined in a sum not exceeding five thousand dollars, or both, at the discretion of the court: Provided, That this act shall not prohibit any citizen from taking or receiving civil commis- sions for the acknowledgment of deeds and other instruments of writing. Sect. 2. If any person or persons within this commonwealth, shall sell, build, furnish, construct, alter or fit out, or shall aid or assist in selling, building, con- structing, altering or fitting out any vessel or vessels, for the purpose of making war or privateering, or other purpose, to be used in the service of any person or parties whatever, to make war on the United States of America, or to resist by force or otherwise, the execution of the laws of the United States, such person or persons +692 : . TRESPASS AND TROVER. shall be guilty of a misdemeanor, and on conviction thereof, shall be sentenced to undergo solitary imprisonment, in the penitentiary, at hard labor, not exceeding ten years, and be fined in a sum not exceeding ten thousand dollars, or both, at the discretion of the court. , II. Treason is a breach of allegiance, and can be committed by him only who owes allegiance, either perpetual or temporary. 5 Wheat. 97. Where the premeditated object and intent of a riotous assembly is to prevent by force and violence the execution of a law of the state, by force and violence to coerce its repeal by legislative authority, or to deprive any class of the community of the protection afforded by law, and the rioters proceed to execute by force, their pre- meditated objects and intents, they are guilty of treason, in levying war against the state. 2 Wall. Jr. 140, 202. Whart. St. Tr. 634. 2 D. 348, 346. Wharton on Homicide 462. But a resistance to the execution of a law of the state, accompanied with any degree of force, is not treason ; to constitute that offence, the object of the resistance must be of a public and general character. 1 Paine 265. And there must be an actual levying of war; a conspiracy to subvert the government by force, is not treason; nor is a mere enlistment of men, who are not assembled, a levying of war. 4 Cr. 75. 2 Wall. Jr. 186, 140. 4 Am. L. J. 83. So, no man can be convicted of treason who was not present when the war was levied. 2 Burr’s Trial 401, 439. See Whart. C. L. § 2719-36. Delivering up prisoners and deserters to the enemy, is giving them aid and com- | fort, and therefore, treason. 2 Wheeler’s Cr. Cas. 477. And so is the carrying of provisions towards the enemy, with intent to supply him, though that intention should be defeated. 3.W. C. C. 234. Whart. Cr. L. § 2737. See McGee v. The Fanny, Hopk. Dec. 92-3. The clause requiring the testimony of two witnesses to the same overt act of treason, refers to the proofs on the trial, and not to the preliminary hearing before the committing magistrate, or the proceeding before the grand jury. 2 Wall. Jr. ae # Burr’s Trial 196. 18 Leg. Int. 149.” But see Fries’s Trial 14. Whart. St. r. 480. Trespass and Crober. 1. Jurisdiction of justices in trespass and III. Judicial decisions relating to trespass. trover. IV. Trover and conversion, IL. Proceedings before referees. I. Aor 22 Maron 1814.. Purd. 604. Secr. 1. 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 damages for injury done or committed on real and 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. ; Sxcr. 2. 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 Ree or if only one party or his or her agent should appear, then the justice or alderman shall appoint the referees, who shall be sworn or affirmed justly and truly to assess the damages alleged to have been sustained or the value of the property in dispute, which they or a majority of them shall have power to assess: Provided, That if both parties or their agents shall not prefer a TRESPASS AND TROVER. ; =, i 693 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 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, 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 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. Srct. 3. Hither 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 the award of referees shall exceed twenty dollars. : Szcr. 4. 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 provided 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.’ ”” 5 Sort. 5. 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 of lands and tenements, actions for damages in personal assault and battery, wound- ing or maiming or to actions for false imprisonment. Sect. 7. 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.” ’ II. Act 26 Maron 1814. Purd. 604. Secr. 1. If any referee appointed under the third section of the act 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 pre- seut, (where the parties cannot agree on the person or persons to supply the vacancy, or where only one of the parties attends,) to appoint proper persons in place of those who may be absent, and the referees thus appointed shall have the same authority as those originally appointed. Sror. 2. The said referees shall be sworn or affirmed by an alderman or justice 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. Acr 13 Frepruary 1816. Purd. 604. Sect. 1. In all actions for the recovery of damages for any trespass, wrong or injury done or committed against real or personal estate brought before any justice of the peace or alderman of this commonwealth, and referred agreeably to law, the referees are hereby empowered, in addition to their report of the damages, if any sus- tained by the plaintiff, to detide and report also whether the plaintiff or 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 for the costs as the damages, and execution shall issue as in other cases; any- thing in the 2d section of the act, entitled ‘“‘ An act regulating the proceedings of justices of the peace and aldermen in cases of trespass, trover and rent,” passed the 22d day of March 1814, or in any other act, to the contrary notwithstanding. 694 TRESPASS AND TROVER. Aor 26 Aprin 1815. Purd. 604. Sror. 1. No action brought before a justice of the peace or alderman shall be referred to referees for trial, unless by the agreement or express assent of both — parties to the action, or their agents, which agreement or assent shall be noted by “ such justice or alderman upon his docket. III. The action of trespass lies for immediate (injuries to the person) or to the ersonal 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. Where, however, the injury is consequential or collateral, case is the proper remedy. 1 Y. 586. 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 itself lawful, yet if in its effects or consequences, it is productive of any injury to another, it subjects the party to this action. Esp. N. P. 597. Justices have no jurisdiction of actions of trespass on the case. 13 8. & R. 420. 1 Ash. 152. Per Lord Extenporoves, C. J.: “ Whether the injury complained of arises directly or follows consequentially from the act of the defendant, I consider as the only just criterion of trespass and case.”” 1 Camp. N. P. 497. If an act done cause immediate injury, whether it be intentional or not, trespass lies; and if done by the co-operation of several persons, all are trespassers, and all may be sued jointly, or one is liable for the injury done by all; but it must appear that they acted in concert, or that the act of the one sued naturally and ordinarily produced the acts of the others. 19 Johns. 3881. 2 C. 482. The jurisdiction conferred on justices of the peace by the act of 1814, is con- current with that of the common pleas. 4 8. & R. 417. 6 Ibid. 87. 1 Ash. 192. To give jurisdiction to a magistrate, in trespass, the damage must form an actual or immediate injury operating upon the body of the property. 6 B. 33. ~* It is not necessary, however, that an actual loss should be proved. Every entry upon the close of another, without his permission, unless justified and authorized by law, is a trespass, for which suit may be brought before an alderman or justice of the peace. 18 Leg. Int. 29. 3 Phila. R. 424. Thus, a justice has jurisdiction of an action of trespass for entering the plaintiff’s house, and making a noise and disturbance therein, although no actual loss be proved. 13 S. & R. 417-20. And for intruding into the plaintiff’s dwelling. house and refusing to leave when directed. 13 Leg. Int. 29. A devastavit is not a trespass within the meaning of the act of 1814, of which a magistrate has jurisdiction. 12 S. & R. 58. The law is settled, that none but the person in possession of the land can main- tain trespass guare clausum fregit. 2 Br. 109. 4 Y. 218. 5 Wh. 539. A tenant may sustain an action of trespass quare clausum fregit against his land- lord, for an injury done to his way-going crop after the expiration of the lease, and after he had removed from the premises. 8 W. 282. 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 against him in an auction of trespass. 5 W. 543. In an action of trespass before a justice of the peace, for cutting timber on the land of the plaintiff, it is not error that the record do not show in what county the land is situate. 5 P. L. J. 222. 3 Ibid. 425. To stay proceedings in an action of trespass before a justice, the affidavit, under the second section of the act of 1814, that the title to lands will come in question, must be aad 3 itis not sufficient to swear to the best of the deponent’s know- ledge and belief. Carpenter v. Koons, Purd. 604, n. It is'too late to make such objection after the case comes into the common pleas by appeal. 8 H. 464. In the case of personal chattels, he who has the general property need noi 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 actual possession, with- out which no special property is complete. 3S. & R. 512, 518. ‘ TRESPASS AND TROVER. 695 In trespass for taking and carrying away the plaintiff’s goods, it is not necessary for him to show title in the first instance ; his possession is sufficient, and the defend. ant must show a better right in himself. 2 W. 180. Where a quantity af corn 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. 879. 2 R. 428. If a chattel wrongfully taken retains its original form and substance, or may be reduced to its original materials, it belongs to the original owner; and this rule, it seems, holds against an innocent purchaser from the wrongdoer, without regard to the increased value bestowed by him upon the chattel. But if 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. ' There is no such distinction, however, in favor of a wilful wrongdoer. He can acquire no property in the goods of another by any change wrought in them by his labor or skill, however great the change may be, provided it can be proved that the improved article was made from the original material. Ibid. 1 Bouv. Inst. 199. A recovery in an action of trespass, for taking the goods of the plaintiff, divests his property in the goods. 1 R. 121. Trespass lies against a constable who seizes the property of a defendant under an execution, and refuses him the benefit of the exemption law. 4 C. 238. IV. TRovER AND CONVERSION. The action of 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. Pl. 148. 2 Y. 537. 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. 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. 3S. & R. 515. 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. Ibid. 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. 12 S. & R. 272. 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. , This action in Pennsylvania is an equitable remedy, and therefore if a defendant 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 8. & R. 563. 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 in the thing pawned than the pawnor himself had. 1 Br. 43. 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 RB. 120. Trover will not lie for goods seized by virtue of legal process, and in the custody of the law. 9 Johns. 381. 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. 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 ‘ 696 TRESPASS AND TROVER. d the actual or special ; but it is unnecessary that the plaintiff should ever have ha st TE possession, for it is a rule of law that the property of personal chattels drawi the possession. 2 P. R. 45. 1 Y. 19. ‘ 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 par- ticular and special purpose. 7 T. R. 392. 1 Bac. Abr. 50. fo: 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 exclusion of his right, is a conversion. 7 Johns. 254,306. 10 Ibid. 175. 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. 128. The wrongful taking and carrying away another person’s goods is, itself, a con- version. 15 Johns. 431. But where the goods have come lawfully into the defend- ant’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 conver- sion. 2 Saund. 47 e. 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, on being satisfied that the demandant is really the owner or agent, no conversion can be inferred. 6 8. & R. 305. 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. 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. 65. 7 Ibid. 254. 10 Ibid. 176. 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 8. & R. 89, 94. 6 Ibid. 300. 4 W. 418. 3 W. 333. 9 C. 251. Though trover may 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 8. & R. 285. As a general principle, the defendant in an action of trover may show title in a third person. 4 W. 241. 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 cannot maintain an action afterwards for the goods against the vendee of the defendant; and this, although the first judgment should not be satisfied. 4 R. 285-6. Constructive possession of unoccupied land is sufficient to support trover for the asportation and conversion of trees felled thereon. 9 W. 172. 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 W. 570. He who parts with the possession of his property for the purpose of defrauding 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. 6 W. 453. Riding 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. , A neglect, by one who takes charge of an estray, to pursue the course prescribed 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. [ 697 ] Daqrants, I. When to be deemed vagrants. and disorderly persons. II. Conviction and punishment of vagrants III. Judicial decisions. I. Act 13 Junz 1836. Purd. 999. Sgot. 32. The following described persons shall be liable to the penalties imposed by law upon vagrants :-— 1. All persons who shall unlawfully return into any district whence they have been: legally removed, without bringing a certificate from the city or district te which they belong. 2. 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 laborers in the like work, in the place where they then are. 3. All persons who shall refuse to perform the work which shall be allotted to them by the overseers of the poor as aforesaid. 4. 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. 5. 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 labor, 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. II. Aor 21 Fesruary 1767. Purd. 999. Szor. 1. 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 offenders (being thereof legally convicted before him, on his own view, or by the confession of such offenders, 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 labor, by the keeper of such work-house or jail, for any time not exceeding one month. Scr. 2. 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 offending to a justice of the peace of the county, who shall examine and ‘try such 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 labor during the term afore- said; and if any constable, after such notice given as aforesaid, shall refuse or neglect to use his best endeavors 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 warrant 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. Szcr. 3. 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 one thereupon shall be final. Act 22 March 1836. Purd. 1000. Secor. 6. All persons who may be convicted, according to the existing laws of 698 VAGRANTS. 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, shall be sentenced to suffer confinement, at suitable employment, in the vagrant apartment of the city and county of Phila- delphia, for the term of one month, and to be fed, clothed and treated as convicts in the Philadelphia county prison are directed to be fed, clothed and treated. III. Vagrants are, since the repeal of the act of 8th February 1766, on the same footing in the city of Philadelphia, and the districts adjoining to it, that they are in other parts of the state, and, therefore, an alderman of the city of Philadelphia may lawfully commit any vagrant found therein, to prison, to be kept at hard labor for any time not exceeding one month, on conviction, according to the act of the 21st February 1767. 1 Sm. 268. 5 B. 516. 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 conclusive, 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 Ash. 248. 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. Ibid. 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, une- quivocal and decisive. Ibid. 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. Ibid. ‘“‘There is another class of offenders, 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 there 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; for we must pre- sume 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 institu- tions. Such is the definition given to the word by one of our best American lexi- cographers. “The act of 17 Geo. IL, ch. 5, speaks of ‘idle and disorderly persons,’ and vagrants, or rogues and vagabonds, as two distinct classes of offenders; and the act of the 21st of February 1767, copies portions of this act of parliament, and calls all such offenders ‘idle and disorderly persons.’ The act of 13th of June 1836, speaks of some offences not embraced in the former 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 22d of March 1836, provision is made for the punishment of disorderly persons. Now, it seems to me, that, so far 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 VAGRANTS. 699 of the rules of good order in the community can well occur, without the offender 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 which makes it the 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 convi¢t him as such. When a person is proved before a magistrate to be a ‘ disorderly 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 his record, the acts done by the offender, which make him a disorderly person. Nor is he bound to make a return of’ such 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 1838, the judges 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, before them, and examine the same, and recommit or discharge the individuals thus imprisoned, as they shall think law and justice require. ‘““Tt would be difficult, if not impossible, to enumerate the cases where a com- mitting magistrate ought to commit one as a ‘disorderly person ;’ for a correct decision of each case must depend upon the facts disclosed upon the hearing. The term ‘ disorderly’ is certainly very extensive 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 for their good behavior. Hach case should be carefully considered by the magistrate, and no one should be improperly committed; at the same time, whenever the law has been violated, 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.” 2 P. 458. [ 700 ] THagers. I, Of the nature and character of wagers. III. Wagers on a horse-race. II. Wagers on elections. I. Lorp Extenzoroves 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. 2 Camp. 140. In another case, which was a wager whether a person might be law- fully arrested for a sum under £40, his lordship threw down the record with great displeasure, saying, ‘I certainly will not try this cause. I sit here to decide points of law that arise incidentally before me, and the decision of which is necessary for the purposes of justice—not to state my 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. Sergeant 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 humor. MansrFiewp, C. J., indeed said, “he did not, judicially, know the mean- ing of a ‘rump and-dozen.’” But Hears, J., observed, that they knew very well, privately, that a “rump and dozen” was what the witness stated, namely, a good dinner and wine; “in which,” said the learned judge, “I can discover no ille- gality.” CHamBre, 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. But whatever may be the law 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 plain- tiff, upua a wager or bet. 6 Wh. 176. 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 ee abet any human being, is recoverable in a court of justice. Huston, J. 1 . 42, 438. 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 plain- tiff, upon a certain event; and such consideration having been proved, the defendant is entitled to a verdict. 6 Wh. 176. : A notice to a stakeholder not to pay over money deposited in his hands, upon an illegal wager, must come from the owner of the money. A notice from the person who made the bet and deposited the money, on behalf of the owner, is ineffectual to enable the owner to recover it back. 2 W. & S. 59. II. WaGERs ON ELECTIONS. The statute against betting on elections, was intended to avoid all bets, paid or unpaid, and to suppress anything connected with the subject; it cannot, therefore, be eluded by any appended agreement, which would give to an actual wager the similitude of something else. 7 W. 848. All contracts or promises, depending upon a bet on the result of an election, are null and void: ingenuity cannot invent any mode of evidencing such contract, so that it can be enforced by law. 7 W. 294. A., the winner of a bet on the gubernatorial election of 1841, brought suit against B., the stakeholder, who had omitted to deliver up the money, after the ‘oser had directed him to pay it to the winner, or to his order: Held, that since WAGERS. 701 the act of 2d July 1839, relating to elections, the plaintiff could not recover either the whole sum deposited, or the share deposited by himself. 3 P. L. J. 388. Upon a deposit being made, to secure a bet on an election, the money, ¢o instant, vests in the guardians of the poor; and their omission to sue for it within the time limited by statute, does not give to either of the wagering parties the right to recover any portion of the sum deposited. Ibid. : Money contributed by individuals, 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. 8 W. & S. 405. Money lost by a wager upon an election, and paid over to the winner, cannot be recovered back from him by means of a foreign attachment, at the suit of a creditor of the loser. 6 W. & S. 485. The subject of betting on elections is comprehended in four sections of the elec- tion law of July 2d 1839, including the 115th, 116th, 117th and 118th sections. Money lent in New Jersey, to bet upon the presidential election, may be reco- vered in Pennsylvania, in absence of any proof that betting on elections is against the law of New Jersey. 2 H. 18. IIT. WAGERS ON A HORSE RACE. Ifa 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. If the stakeholder pays the money to him to whom it was forfeited, without notice, and in good faith, he is protected by the limitation contained in the act of assembly; otherwise, if he acted unfairly and connived with one of the parties. Ibid. Money staked on a horse race may be recovered by the better, either from the winner or the stakeholder. Ibid. 494. 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. 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. [ 702 J Wlarrant or Captas. I. Form of a civil warrant or capias. III. Of the bail to be taken by the constable Il. Of the service of a warrant, and the and his assignment of it. constable’s return. I. CIVIL WARRANT OR CAPIAS. CITY OF PHILADELPHIA, ss. The Commonwealth of Pennsylvania, To the Constable of Fifth Ward, or to the next Constable of the said city, most conve- nient to the defendant, greeting: You are hereby commanded to rake 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 [C. D.] in a plea of debt, for a penalty not exceeding one hundred dollars. Witness the said J. B., at ees who hath hereunto set his hand and seal, the [tenth] day of [July,] in the year of our Lord one thousand eight hundred and sixty. J. B., Alderman. (reas | This form may be made to answer in cases of ¢rover and conversion, and in tres- pass, by making on it, to the letter, the same alterations which have been made to render the form of a summons for debt available in similar cases. [See pages 674, 675. Tie 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. II. 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 warrant indorsed—“ 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 indorsed—“ T 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 have been unable to find the defendant, he may indorse 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 his return. III. When the constable does take bail, he should take it in the words of the act of assembly of 20 March 1810, to wit: “We, A. B. and C. D., are held and firmly bound unto E. F., constable 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 our hands, the —— day of ——.” “Tf 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 WARRANT OR CAPIAS. 703 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: “TJ, 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 A. B., Const. [szau.]” in the presence of : G, H. and W. M. If, when the defendant is brought before the justice on a warrant, he satisfy the justice that he is a freeholder, he should be liberated. The plaintiff may then proceed by summons. If the defendant claim to be a freeholder, yet be unable to satisfy the justice of the fact, and he give bail for his appearance, at a time to which the case shall be adjourned, he should be liberated. If, when the parties meet, the defendant 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 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 plaintiff’s demand is for the recovery of money collected by a public officer, or for official misconduct. [See title, ‘‘ Arrest for Debt,” page 148.] [ 704 J WGciqghts and Measures. I. Act 15 Aprit 1845. Purd. 1015. Sxct. 7. In case any maker, vender or proprietor of beams, scales, weights or measures, within the city or county of Philadelphia, or county for 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 s0 offending shall for each and every offence 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. , II. Aor 21 Aprin 1846. Purd. 1015. Sect. 1. 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 afore- said ; 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 suffi- cient 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 offence was committed, there to be kept at hard labor for the space of thirty days. Scr. 2. Any person who shall be convicted as aforesaid, and shall think himself or herself aggrieved by such conviction, may remove the proceedings, by certiorart, 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. Src. 3. 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. III. Acr 11 Aprim 1850. Purd. 1015. Szor. 8. 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 represented, 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 recovered 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. IV. Aor 3 Aprin 1851. Purd. 1018. Sxor. 13. All the provisions of the laws and parts of laws regulating the inspec- tion of weights, scales, beams and measyres used for the purpose of buying and selling, shall be extended to all such weights, scales, beams and measures as are used for ascertaining weights and measures, for the purpose of charging for freight, tonnage, transportation, commissions or other charges where such charges are regulated by weight or measure. APPENDIX. CODE OF CRIMINAL PROCEDURE. I. Proceedings to detect the commission of IV. Of the trial. crimes. V. Of costs. II. Indictments and pleadings. VI. General provisions. ILL. Courts of criminal jurisdiction. I. PRocEEDINGS TO DETECT THE COMMISSION OF CRIMES. 1. The judges of the supreme court, of the court of oyer and terminer and jail delivery, of the courts of quarter sessions, or any of them, shall and may direct their writs and precepts to the sheriffs and coroners of the several counties within this commonwealth, when need shall be, to take persons indicted for felonies, or other offences, before them, who may dwell, remove or be received into another county ; and it shall and may be lawful to and for the said judges, or any of them, to issue subpoenas into any county of the commonwealth, for summoning and bring- ing any person to give evidence in any matter or cause before them, or any of them, and to compel obedience to such writs, precepts or subpoenas, by attachment or otherwise, and under such pains and penalties as other writs or subpoenas are or ought by law to be granted and awarded; and that it shall be lawful for said judges, or any of them, if they see fit to direct such writ, precept, summons, subpcena or attachments, to be executed by the sheriff of the county in which the same is awarded, which said writ, precept, summons or subpoena shall be the sufficient. warrant of such sheriff for executing the same throughout this commonwealth, as fully and effectually as if directed to, and executed by the sheriff of the proper county where issued: Provided, That the reasonable expenses of executing such process, when issued on behalf of the commonwealth, shall be paid out of the funds. of the county where issued; and the expenses of removing any person charged with having committed an offence in one county into another county, or of trans- porting any person charged with having committed any offence in this state from another state into this state for trial, or for conveying any person, after conviction, to the penitentiary, shall be paid out of the treasury of. the county where the: offence is charged to have been committed.(a) Act 31 March 1860, § 1. Purd. 248. 2. Where any person charged with having committed any felony,(6) in any city or county of this commonwealth, shall go or escape into any other county thereof, 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 to the proper county, where the said felony is alleged to have been committed, the expenses of which shall be paid to the said sheriff by. the: county to which the said person is conducted. Ibid. § 2. (a) The county is not liable for the expenses 4 fugitive charged with having committed a incurred in an unsuccessful attempt to arrest misdemeanor in another county can only be: a fugitive from justice, who has taken refuge arrested under the provisions of the suceeed-~ in another state. 8 C. 540. ing section. 1 Gr. 218. (b) This does not extend to misdemeanors ; 45 (705) 706 CODE OF CRIMINAL PROCEDURE. 8. In case any person against whom a warrant may be issued by any judge or alderman of any city, or justice of the peace of any county in this commonwealth, for (any offence there committed, shall escape, go into, reside or be in any other city or county out of the jurisdiction of the judge, alderman, justice or justices of the city or county granting such warrant as aforesaid, it shall and may be lawful for, and it is hereby declared to be the duty of any alderman, justice or justices of the city or county where such person shall escape, go into, reside or be, upcn proof being made, upon oath or affirmation, of the handwriting of the judge, alderman, justice or justices granting such warrant, to indorse his or their name or names on such warrant, which shall be sufficient authority to the person or persons bringing, such warrant, and to all other persons to whom such warrant was originally directed, to execute the same in such other city or county, out of the jurisdiction of the alderman, justice or justices, granting such warrant as aforesaid, and to apprehend and carry such offender before the alderman, justice or justices who indorsed such warrant, or some other alderman, justice or justices of such other city and county where such warrant was indorsed. And in ease the offence for which such offender shall be so apprehended, shall be bailable in law by an alderman or justice of the peace, and such offender shall be willing and ready to give bail for his appearance at the next court of general jail delivery or quarter sessions, to be held in and for the city and county where the offence was committed, such alderman, justice or justices shall and may take such bail for his appearance, in the same manner as the alderman or justice of the peace of the proper city or county might have done; and the said alderman, justice or justices of the peace of such other city or county so taking bail, shall deliver or transmit such recognisance and other proceeding to the clerk of the court of general jail delivery or quarter sessions, where such offender is required to appear by virtue of such recognisance, and such recog- nisance and other proceedings shall be as good and effectual in law as if the same had been entered into, taken or acknowledged in the proper county where the offence was committed, and the same proceedings shall be had therein. And in case the offence for which such offender shall be apprehended in any other city or county, shall not be bailable in law by an alderman or justice of the peace, or such offender shall not give bail for his appearance at the proper court having cognisance of his crime, to the satisfaction of the alderman or justice before whom he shall be brought, then the constable or other person so apprehending such offender, shall carry and convey him before one of the aldermen or justices of the peace of the proper city or county where such offence was committed, there to be dealt with according to law.(a) Ibid. § 3. 4. No action of trespass or false imprisonment, or information or indictment, shall be brought, sued; commenced, exhibited or prosecuted by any person, against the alderman, justice or justices, who shall indorse such warrant, for or by reason of his vr their indorsing the same, but such person shall be at liberty to bring or prose- cute his or their action or suit against the alderman or justice who originally granted the warrant. Ibid. § 4. 5. When any person shall be accused before a magistrate, upon oath or affirmation, of the crime of burglary, robbery or larceny, and the said magistrate shall have issued his warrant to apprehend such person or persons, or to search for such goods as have been described, on oath or affirmation, to have been stolen goods, if any shall be found in the custody or possession of such person or persons, or in the cus- tody or possession of any other person or persons, for his, her or their use, and there «8 probable cause, supported by oath or affirmation, to suspect that other goods, which may be discovered on such search, are stolen, it shall and may be lawful for the said magistrate to direct the said goods to be seized, and to secure the same in his own custody, unless the person in whose possession the same were found shall give sufficient surety to produce the same at the time of his or her trial. And the said magistrate shall forthwith cause an inventory to be taken of the said goods, and shall file the same with the clerk of that court in which the accused person is (a) A warrant issued by © justice of the the warrant issued, will not justify the deten- peace in one county, and indorsed by a justice tion of the offender in the jail of the county of another county, charging a misdemeanor where the warrant was indorsed. 1 Gr. 218, ‘ to have been committed in the county whence . CODE OF CRIMINAL PROCEDURE, 707 int:nded to be prosecated, and shall give public notice in the newspapers, or other- wise by advertising the same in three or more public places in the city or county where the offence is charged to have been committed, before the time of trial, noting in such advertisement the said inventory, the person charged and time of trial. And if, on such trial, the accused party shall be acquitted, and no other claimant shall appear or suit be commenced, then, at the expiration of three months, such goods shall be delivered to the party accused, and he, she or they shall be dis- charged, and the county be liable to the costs of prosecution ; but if he be convicted of larceny only, and, after restitution made to the owner and the sentence of the court being fully complied with, shall claim a right in the residue of the said goods, and no other shall appear or claim the said goods, or any part of ‘hem, then it shall be lawful, notwithstanding the claim of the said party accused, to detain such goods for the term of ‘nine months, to the end that all persons having any claim thereto may have full opportunity to come, and to the satisfaction of the court, prove their property in them; on which proof the said owner or owners, respectively, shall receive the said goods, or the value thereof, if from their perishable nature it shall have been found necessary to make sale thereof, upon paying the reasonable charges incurred by the securing the said goods and establishing their property in the same; but if no such claim shall be brought and duly supported, then the person so con- victed shall be entitled to the remainder of the said goods, or the value thereof, in case the same shall have been sold agreeably to the original inventory. But if, upon an attainder of burglary or robbery, the court shall, after due inquiry, be of opinion that the said goods were not the property of such burglar or robber, they shall be delivered, together with a certified copy of the said inventory, to the com- missioners of the county, who shall indorse a receipt therefor on the original inven- tory, register the said inventory in a book, and also cause the same to be publicly advertised, giving notice to all persons claiming the said goods to prove their pro- perty therein to the said commissioners ; and unless such proof shall be made within three months from the date of such advertisement, the said goods shall be publicly sold, and the net moneys arising from such sale shall be paid into the county treasury for the use of the commonwealth: Provided always, That if any claimant shall appear within one year, and prove his or her property.in the said goods to the satisfaction of the commissioners, or in the case of dispute, shall obtain the verdict of a jury in favor of such claim, the said claimant shall be entitled to recover, and receive from the said commissioners or treasurer, the net amount of the moneys paid as aforesaid into the hands of the said commissioners, or by them paid into the treasury of this commonwealth. Ibid. § 5. 6. If any person shall threaten the person of another to wound, kill or destréy him, or to do him any harm in person or estate,(a) and the person threatened shall appear before a justice of the peace, and attest, on oath or affirmation, that he believes that by such threatening he is in danger of being hurt in body or estate, such person so threatening as aforesaid, shall be bound over, with one sufficient surety, to appear at the next sessions,(b) according to law, and in the mean time to be of his good behavior, and keep the peace toward all citizens of this comnonwealth.(c) If any person, not being an officer on duty in the military or naval service of the state or of the United States, shall go armed with a dirk, dagger, sword or pistol, or other offensive or dangerous weapon, without reasonable cause to fear an assault or other injury or violence to his family, person or property, he may, on complaint of any person having reasonable cause to fear a breach of the peace therefrom, be required to find surety of the peace as aforesaid.(d) Ibid. § 6. the public safety requires. 2 Y. 437. 10 Barr 889. 2 Hayw. 73-74. See 12 Eng. L. & Eq. 462. (d) This section is partly taken from the (a) Surety of the peace is demandable of right by any individual who will make the necessary oath. 1 B. 102, n. See 1 Ash. 46. 2 P. 458. (6) A committing magistrate has no author- ity to bind a person to keep the peace, or for his good behavior, longer than the next term of the court. 2 P. 458. (c) Surety for good behavior may be ordered by the court, after the acquittal of a prisoner, in such sum, and for such length of time, as act of 1700, 1 Sm. 5; the addition thereto provided by this section, against the unneces- sarily carrying deadly weapons, is introduced from an obvious necessity, arising from daily experience and observation. Report on the Penal Code 39. 708 CODE OF CRIMINAL:PROCEDURE. 7. In all cases the party accused, on oath or affirmation, of any crime or misde- meanor against the laws, shall be admitted to bail by one or more sufficient sureties, to be taken before any judge, justice, mayor, recorder or alderman where the offence charged has been committed, except such persons as are precluded from being bailed by the constitution of this commonwealth :(a) Provided also, That persons accused as aforesaid,.of ‘murder or manslaughter, shall only be admitted to bail by the supreme court or one of the judges thereof, or a president or associate law judge of a court of common pleas: persons accused, as aforesaid, of arson, rape, mayhem, sodomy, buggery, robbery or burglary, shall only be bailable by the supreme court, the court of common pleas or any of the judges thereof, or a mayor or recorder of a city. Ibid. § 7. 8. At sureties, mainpernors and bail in criminal cases, whether bound in recogni- sances for a particular matter or for all charges whatsoever, shall be entitled to have a bail-piece, duly certified ‘by the proper officer or person before whom or in whose office the recognisas.ce of such surety, mainpernors or bail shall be or remain, and upon such bail-piece, by themselves or their agents, to arrest and detain, and sur- render their principals, with the like effect as in cases of bail in civil actions; and such bail-piece shall be a sufficient warrant or authority for the proper sheriff or jailer to receive the said principal, and have him forthcoming to answer the matter or matters alleged against him: Provided, That nothing herein contained shall pre- vent the person thus arrested and detained from giving new bail or sureties for his appearance, who shall have the same right of surrender hereinbefore provided. Ibid. § 8. 9. In all cases where a person shall, on the complaint of another, be bound by recog- nisance to appear, or shall, for want of security, be committed, or shall be indicted for an assault and battery or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done with intent to commit a felony, or not being an infamous crime, and for which there shall also be a remedy, by action, if the party complaining shall appear before the magistrate who may have taken recognisance or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate, in his discretion, to discharge the recognisance which may have been taken for the appearance of the defendant, or in case of committal, to discharge the prisoner, or for the court also where such proceeding has been returned to the court, in their discretion, to order a nolle pro- sequi to be entered on the indictment, as the case may require, upon payment of costs: Provided, That this act shall not extend to any assault and battery, or other misdemeanor, committed by or on any officer or minister of justice. Ibid. § 9. II. InpicTMEnTs AND PLEADINGS. 10. The foreman of any grand jury, or any member thereof, is hereby authorized and empowered to administer the requisite oaths or affirmations to any witness whose ein may be marked by the district attorney on the bill of indictment.(b) Ibid. 11. Every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of the assembly pro- hibiting the crim, and prescribing the punishment, if any such there be, or, if at common law, so plainly that the nature of the offence charged may be easily under- stood by the jury. Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn, and not afterward: and every ‘court before whom any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, (a) A justice may take bail after commit- ) That witnesses, whose names had ment for trial, 6 W. &S. 814. 2P. 458. And ere by the direct attorney on the mil see 7 W. 464. 5 B. 512, 18m. 57,n. Are- of indictment, were sworn and examined by cognisance taken by a justice to answer the the foreman of the grand jury, is not plead- charge of arson is coram non judice, and yoid. able in bar; at most, it is only ground for a Com. ». Philips, 2 U. 8. Law Mag. 816, motion to quash. 18 Leg. Int. 132. * CODE OF CRIMINAL PROCEDURE. 709 by the clerk or other officer of the court, and thereupon the trial shall proceed as if no such defect appeared.(a) Ibid. § 11. 12. It shall be lawful for any court of criminal jurisdiction, if such court shall see fit so to do, to cause the indictment for any offence whatever, when any variance or (a) Sections 11 to 22 are new, and certainly not the least important in the proposed amend- ments of our penal system. The history of criminal administration abounds with in- stances in which the guilty have escaped, by reason of the apparently unreasonable nicety required in indictments. Lord Hats, one of the best, and most humane of English judges, long since remarked, that such niceties were ‘grown to be a blemish and an inconvenience in the law, and the administration thereof; that more offenders escaped by the easy ear given to exceptions to indictments, than by the manifestations of their innocence, and that the grossest crimes had gone unpunished, by reason of these unseemly niceties.” The reason for recognising these subtilities by the common law, no doubt arose from the humanity of the judges, who, in administer- ing a system in which the punishment of death followed almost every conviction of felony, were naturally disposed, in favor of life, to hold the crown to the strictest rules. Since, however, the reform of the penal laws, and the just apportionment of punishment to crimes according to their intrinsic atrocity and danger, the reason which led to the adoption of these technical niceties has ceased, and with the cessation of the reason, the technicalities themselves should be ex- punged from our system. The-11th section of this act proposes what the commissioners believe will be an effective remedy to this re- proach of the common law, without depriving the accused of any proper privilege; it leaves him, at the outset of his trial, to determine whether he will question the relevancy of his accusation, or take issue on the merits of the charge; if he elects the latter, and is con- demned, there seems neither moral nor legal fitness in ‘permitting him to urge formal ex- ceptions, which, if suggested, at an early period, would have been promptly corrected. The 12th and 13th sections are intended to meet cases of frequent occurrence, in which, although an indictment is strictly formal, yet, owing to some accidental slip in its prepara- tion, it is found on the trial that the proofs do not entirely tally with the description of the instrument set forth in the indictment, or in the names of persons or places described therein. By the law ds it now stands, where written instruments enter into the gist of the offence, as in forgery, passing counterfeit money, selling lottery tickets, sending threat- ening letters, &c., they are required to be set out in words and figures; the omission of a figure in an indictment for forgery is fatal. In the cage of Com. v. Gillespie, 7 8. & R. 469, a mistake in spelling the name of ‘ Burrall” which in the indictment was spelled ‘“ Burrill,” was adjudged fatal after verdict. So, a variance between the names of the persons aggrieved, and places descrihed in the indict- ment, and the proofs thereof on trial, will entitle the defendant to an acquittal, on the ground of the want of agreement between the allegata and the probata. The proposed sections authorize the courts to amend such verbal errors, if objected to; and thus terminate a class of technical niceties, which are a reproach to the rational administration of justice. The 14th and 15th sections avoid the existing necessity of setting forth, in indictments, the names of numerous indivi- duals, owners of property feloniously or fraudulently taken, or maliciously injured or destroyed; it will serve to reduce the volumi- nousness of such indictments, and can do no possible injury to the defendant, who cannot be interested in the fact, whether one person is, or one hundred persons are the owners of property in regard to which he is charged with having committed a felony or misde- meanor. The 16th section refers to public property, and rests on the same principle as the fourteenth and fifteenth sections. The 17th and 18th sections will enable the criminal pleader to simplify hereafter the forms of indictments in forgery, and facilitate him in averring instruments necessary to be recited in any other indictment. The 12th and 18th sections contemplate the amendment of indict- ments, framed according to the existing law, where an accidental error occurs between the instrument and names described, and those offered in proof. These sections strike at the root of the evil soughtto be eradicated, by giving the pleader the option to prepare his indictment in such a way:as to avoid, alto- gether, such difficulties; which can be done with ordinary care and caution. The 19th section contemplates avoiding the necessity of specifically describing the parties intended to be defrauded, and the embarrassing the proofs, in any case, with a question not really material to the issue. In forgeries, uttering and passing forged money, and in cheating by .false pretences (the crimes contemplated by the section), the gist of the offence is, that the act charged was committed with an intent to defraud; an indictment containing that aver- ment, should be sufficient, without requiring the pleader to go into the description of who was the party intended to be defrauded; a mistake in whom would acquit the accused, although the jury should be convinced that he had forged or uttered false money, or had been: guilty of cheating by false pretences, with intend to defraud. The 20th section, providing for indictments for murder and manslaughter, from the nature and conse- quences of these offences, require that a somewhat detailed explanation of the reasons ‘which have led to their introduction should be given. By the common law, in an indict- ment for murder, it is essentially necessary to set forth, particularly, the manner of the killing, and the means by which it was effected; if a person be indicted for one species of killing, as by poisoning, he cannot be convicted py evidence of a different species 710 CODE OF CRIMINAL PROCEDURE. variances shall appear between any matter in oe or in print, produced in evidence, and the recital or setting forth thereof in the indictment whereon the trial is pending, to be forthwith amended in such particular or particulars, by some officer of: the court, and after such amendment the trial shall proceed in the same manner, in all respects, as if no such variance or variances had appeared. Ibid. 12. ; 13. If, on the trial of any indictment for felony or misdemeanor, there shall appear to be any variance between the statement of such indictment and the evidence offered in proof thereof, in the name of any place mentioned or described in any such indictment; or in the name or description of any person or persons or body politic or corporation therein stated, or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein; or the name or description of'any person or persons, body politic or corpo- rate therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offence ; or in the Christian name or surname, or both Christian and surname, or other description whatsoever of any person or persons whomsoever therein named or described; or in the name or description of any matter or thing whatsoever therein named or described; or in the ownership of any property named or described therein; it shall and may be lawful for the court before whom the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence upon such merits, to order such indictment to be amended, according to the proof, by some officer of the court, both in that part of the indict- ment wherein said variance occurs, and in every other part of the indictment in which it may become necessary to amend; and after such amendment, the trial shall proceed in the same manner, in all respects, and with the same consequences, as if no variance had occurred. And every verdict and judgment which shall be of death, as by shooting, starving or strang- ling. A few cases will serve to illustrate how far this principle has been carried. In Rex v. Kelly, 1 Mood. Cr. Cas. 118, decided in 1825, the indictment charged that the prisoner struck the deceased with a piece of brick, and it appeared probable that the prisoner had not struck with the brick, but that he struck with his fist, and that the deceased fell from the blow upon a piece of brick, and that the fall on the brick was the cause of the death; it was unanimously held by the twelve judges of England, on a case reserved, that the cause of the death had not been truly stated, and the prisoner was discharged. So, in Rex v. Martin, 5 C. & P. 128, where the indictment charged the wound to have been inflicted by a blow with a hammer, held in the prisoner’s hand, and it appeared that the injury might have been occasioned by a fali against the lock or key of ® door, it was held, that if the injury was occasioned by a fall against the lock or key of a door, produced by the act of the defendant, the indictment was not sufficient, In Rex v. Hughes, 5 C. & P. 126, decided in 1832, the prisoner was indicted for an attempt to murder, by shooting the injured party with a pistol loaded with a leaden bullet ; on the trial, no evidence was produced to actually prove that the pistol was joaded with a leaden bullet, none having been found either in the wound, or in the room where the wound was inflicted; the surgeon, examined in the case, testified that the wadding, if rammed tight, might have pro- duced the effect without any ball; in this state of the evidence, the court ruled, that the indictment was not sufficiently proved, and the defendant was acquitted. It is true, that the courts have drawn a distinction, which rendered their rulings in indictments for homicide, as to the manner and cause of the death, more reconcilable with reason, to wit: that where the instrument laid in the indict- ment, and the instrument proved, are of the same nature and character, there is no variance, as if the wound is charged to have been inflicted with a dagger or knife, proof is sufficient which establishes the wound to have been inflicted with a sword, spear or the like; so, if the indictment allege a death by one kind of poison, proof of death by another kind of poison will support it. The section under consideration proposes to go one step in advance of this doctrine, by declaring that it shall hereafter be sufficient, in an indictment for murder, to charge that the defendant did feloxiously, wilfully and of his malice afore- thought, kill and murder the deceased ; ‘with- out going into the details of the cause and manner of the death, which the cases cited show only tends to create unnecessary diffi- culties on the trial, and often results in the complete defeat of justice. The 21st and 22d sections are intended to simplify indictments for perjury and subornation of perjury, which are now extremely voluminous and technical; these characteristics of indictments for these crimes, are so familiar to all criminal lawyers as to render it unnecessary to enter into any details on the subject. The sections recommended for adoption will remedy these evils, and place indictments for these crimes on « rational footing. Report on the Penal Code 40-3. CODE OF CRIMINAL PROCEDURE. 711 given after making such amendment, shall be of the same force and effect, in all respects, as if the indictment had originally been in the same form in whjch it was after such amendment was made. Tbid. § 18. 14. In order to remove the difficulty of describing the ownership of property, in the case of partners and joint owners, in any indictment for any felony or misdemeanor committed on or with respect to any money, chattels, bond, bill, note or other valuable security or effects belonging to or in the possession of any partners or joint owners, it shall be sufficient to aver that the particular subject-matter on which or with respect to which any such offence shall have been committed, to be the property of some one or more of the partners or joint owners named in the indictment, and of other persons being partners or joint owners with him or them, without stating any of the names of such other persons; and in any indictment for any felony or mis- demeanor, committed on or with respect to any house or building whatsoever, ‘ belonging to or in the possession of any partners or joint owners, or for any felony or misdemeanor committed on or with respect to any property being in any such house or building, it shall be sufficient to aver that the particular house or building on or with respect to which, or on or with respect to the property being in which, any such offence shall have been committed, is the property of some one or more of the partners or joint owners named in the indictment, and of other persons being partners or joint owners with him or them, without stating any of the names of such other persons. Ibid. § 14. : . 15. With regard to frauds committed against partners and joint owners, it shall be sufficient in any indictment for any felony or misdemeanor committed with intent to defraud any partners or joint owners, to allege that the act was committed with intent to defraud any one or more of the partners or joint owners named in the indictment, and other persons being partners or joint owners with him or them, without stating any of the names of such other persons. Ibid. § 15, 16. With respect to property belonging to counties, cities, townships and districts, it shall be sufficient in any indictment for any felony or misdemeanor committed on or with respect to any goods, chattels, furniture, provisions, clothes, tools, utensils, materials or things whatsoever, which have been or at any time shall be provided for or at the expense of any county, city, township or district, to be used in any court, jail, house of correction, almshouse or other building or place, or in any part thereof respectively, or to be used for the making, altering or repairing of any bridge or road, to aver that any such things are the property of such county, city, township or district. Ibid. § 16. 17. In any indictment for forgery, uttering, stealing, embezzling, destroying or con- cealing, or obtaining by false pretences, any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereef, without setting out any copy or fac-simile thereof, or otherwise describing the same or the value thereof. Ibid. § 17. 18. In all other cases whatsoever in which it shall be necessary to make any averment in any indictment, as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, and in such manner as to sufficiently identify such instrument, without setting out any-copy or fac-simile of the whole or any part thereof Ibid. § 18. 19. It shall be sufficient in any indictment for forging, uttering, offering, disposing of or putting off any instrument whatsoever, or for obtaining or attempting to obtain any property by false pretences, to allege that the defendant did the act with intent to defraud,*without alleging the intent of the defendant to be to defraud any par- ticular person; and on the trial of any of the offences in this section mentioned, it shall not be necessary to prove any intent on the part of the defendant to defraud any particular person, but it saall be sufficient to prove that the defendant did the act charged with an intent to defraud. Ibid. § 19. 20. In any indictment for murder or manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased waa caused, but it shall be sufficient in every indictment for murder, to charge that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder 712 CODE OF CRIMINAL PROCEDURE. the deceased; and it shall be sufficient in every indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased.(a) Ibid. § 20. 21. In every indictment for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged, and in what court, or before whom the oath or affirmatién was taken, averring such court or person or body to have competent authority to administer the same, together with the proper averment, to falsify the matter wherein the perjury is assigned, without setting forth the information, indict- ment, declaration or part of any record or proceeding, other than as aforesaid, and without setting forth the commission or authority of the court, or person, or body before whom the perjury was committed. Ibid. § 21. 22. In every indictment for subornation of perjury, or for corrupt bargaining, or con- tracting with others to commit wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence, without setting forth the information, indict- ment, declaration or part of any record or proceedings, and without setting forth the commission or authority of the court, or person or body before whom the perjury was committed, or was agreed or promised to be committed. Ibid. § 22. 23. In cases arising under the laws of this commonwealth for the restraint of the horrid practice of duelling, 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 the law; and in like manner an indictment against the seconds may be framed generally, 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 commonwealth, the mere fact of fighting shall be full and complete evi- dence of the charges, respectively, of giving or receiving, or of carrying or deliver- ing a challenge, without other proof thereof. Ibid. § 23. 24. In every indictment for feloniously stealing property, it shall be lawful to add a count for feloniously receiving the said property, knowing it to have been stolen; and in any indictment for feloniously receiving property, knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing said property; and it shall be lawful for the jury trying the same, to find a verdict of guilty either of stealing the property or of receiving the same, knowing it to have been stolen; and if such indictment shall have been preferred and found against two or more persons, it shall be lawful for the jury who shall try the same, to find all or any of the said persons guilty of either stealing the property or of receiving it, knowing it to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving it, knowing it to have been stolen.(6) Ibid. § 24. 25. In all cases of felony the prisoner shall be arraigned, and where any person on being so arraigned shall plead not guilty, every such person shall be deemed and taken to put himself upon the inquest or country for trial, without any question being asked of him how he will be tried, and the inquest shall be charged only to (a) This section does not conflict with the constitutional provision contained in the 9th section of the declaration of rights, that in all criminal prosecutions the accused shall have a right ‘to demand the nature and cause of the accusation against him.” 1 Wr. 109. (6) This section is new, and was intended to remedy difficulties arising frém the com- mon law doctrines in relation to the joinder of offences and joint offenders. At common law, a felony and a misdemeanor, such as burglary and receiving stolen goods, could not be regularly joined; in larceny, counts for receiving were sometimes added, but the practice was regarded as of doubtful legality, until in the case of Rex v. Galloway; 1 Mood. Cro. Cas. 284, and of Rex v. Madden; Ibid. 277, it was decided to be erroneous. In Pennsylvania, the uniform practice has been to unite counts for larceny and receiving, but in no other kind of felonious taking has such joinder been permitted. So, at common law, if two persons are charged with jointly receiving stolen goods, a joint act of receiving must be proved; proof that one received in the absence of the other, and afterwards delivered to him, will not suffice. Rex v. Messingham, 1 Mood. Cr. Cas. 257. The proposed section will obviate these technical difficulties, as it permits a count for receiving to be joined with all indictments for felonious taking, and authorizes the conviction of one or more of several persons, jointly indicted, for felonious taking or receiving, either as principals or receivers, according to their actual guilt. Report on the Penal Code 43, CODE OF CRIMINAL PROCEDURE. 713 ‘inquire whether he be guilty or not guilty of the crime charged against him, and no more. And wherever a person shall be indicted for treason or felony, the jury impannelled to try such person shall not be charged to inquire concerning his so” tenements or goods, nor whether he fled for such treason or felony. Ibid. 26. If any prisoner shall, upon his arraignment for any offence with which he is indicted, stand mute, or not answer directly, or shall peremptorily challenge above the number of persons summoned as jurors for his trial to which he is by law entitled, the plea of not guilty shall be entered for him on the record,(a) the supernumerary challenges shall be disregarded, and the trial shall proceed in the same manner ag = oe a8 pleaded not guilty, and for his trial had put himself upon the country. id. § 26. 27. No person shall be required to answer to any indictment for any offence whatso- ever, unless the prosecutor’s name, if any there be, is indorsed thereon; and if no person shall avow himself the prosecutor, the court may hear witnesses, and deter- mine whether there is such a private prosecutor, and if they shall be of opinion that there is such a prosecutor, then direct his name to be indorsed on such indict- ment.(6) Ibid. § 27. . 28. It shall be lawful in cases of embezzlement by clerks, servants or other persons in the employ of another, to charge in the indictment, and proceed against an offender for any distinct acts of embezzlement, not exceeding three, which may have been committed by him against the same master or employer, within the space of six calendar months, from the first to the last of such acts, and in every such indictment, except where the offence shall relate to a chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security ; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed, shall not be proved, or if he shall be proved to have em- bezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly.(c) Ibid. § 28. 29. No district attorney shall, in any criminal case whatsoever, enter a nolle pro- sequt, either before or after bill found, without the assent of the proper court in writing first had and obtained. Ibid. § 29. 30. In any plea of autrefois acquit, or autrefois convict, it shall be sufficient for any defendant to state, that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment. Ibid. § 30. III. Courts oF CRIMINAL JURISDICTION. 81. The courts of oyer and terminer and general jail delivery shall have power— I. To inquire by the oaths and affirmations of good and lawful men of the county, * of all crimes committed, or triable in such county. II. To hear, determine and punish the same, and to deliver the jails of such county of all prisoners therein, according to law. : III. To try indictments found in the quarter sessions, and certified by the said (a) Where a plea of ‘not guilty” is entered ment, Report on the Penal Code 44. If under this gection, for a prisoner who stands mute, and there is a trial and judgment, he cannot subsequently assign for error any matters appertaining to the precept, venire, drawing, summoning and returning of jurors, &c.; such case is within the 53d section of this act. 5 Wh. 67, 78. (0) By this section the old law has been so amended as to enable the court to determine the question, in any case, whether there is such a prosecutor, and who he is, and if any, to order his name to be indorsed on the indict~- there be no proof of a prosecutor, the defend- ant must plead without such indorsement. 1D. 5. (c) The provisions of this section are ne- cessary for preventing the difficulties that may be hereafter experienced in the prosecution of the various fraudulent embezzlements pre- scribed against by the revised Penal.Code, and particularly by the 107th section thereof, against such embezzlement by clerks, servants and other persons in the employ of others. Report on the Penal Code 44. 714 CODE OF CRIMINAL PROCEDURE. court according to law; and the said courts shall have exclusive jurisdiction and power to try and punish all persons charged with any of the crimes herein enume- rated, which shall be committed within the respective county, to wit: 5 (1.) All persons charged with any murder or manslaughter, or other homicide, and all perséns charged with being accessory to any such crime. (2.) All persons charged with treason against the commonwealth. — (3.) All persons charged with sodomy, buggery, rape or robbery, their counsellors, aiders and abettors. = : (4.) All persons charged with the crime of voluntarily and maliciously burning any building, or other thing, made punishable in the same manner as arson.(a) (5.) All persons charged with mayhem, or with the crime of cutting off the tongue, putting out the eye, slitting the nose, cutting off the nose, cutting off a lip, cutting off or disabling any limb or member of a person, by lying in wait, or with malice aforethought, and with intent in so doing to maim or disfigure such person, and their aiders and abettors and counsellors. . (6.) All persons charged with burglary. (7.) Every woman who shall be charged with having endeavored privately, either by aad or the procurement of others, to conceal the death of any issue of her body, male or female, which, if it were born alive, would be by law a bastard, so that it may not be known whether such issue was born dead or alive, or whether it was murdered or not. (8.) All persons charged with the second or any subsequent offence of receiving, harboring or concealing any robber, burglar, felon or thief, or with the crime of receiving or buying any goods or chattels, which shall have been feloniously taken or stolen, knowing the same to be so taken or stolen. Ibid. § 31. 32. The courts of quarter sessions of the peace shall have jurisdiction and power within the respective counties— I. To inquire, by the oaths or affirmations of good and lawful men of the county, of all crimes, misdemeanors and offences whatsoever, against the laws of this com- monwealth, which shall be triable in the respective county. II. To inquire of, hear, determine and punish, in due form of law, all such crimes and misdemeanors and offences, whereof exclusive jurisdiction is not given as afore- said, to the courts of oyer and terminer of such county. III. To take, in the name of the commonwealth, all manner of recognisances and obligations heretofore taken and allowed to be taken by any justice of the peace; and they shall certify such as shall be taken, in relation to any crime not triable nnesee to the next court of oyer and terminer having power to take cognisance thereof. IV. To continue or discharge the recognisance and obligations of persons bound to keep the peace, or to be of good behavior, taken as aforesaid, or certified into such court by any justice of the peace of such county, and to inquire of, hear and deter- mine, in the manner hitherto practised and allowed, all complaints which shall be found thereon. V. The courts of quarter sessions shall also have jurisdiction in cases of fines, penalties or punishments, imposed by any act of assembly, for offences, misde- meee or delinquencies, except where it shall be otherwise expressly provided and enacted. VI. The said courts shall also have and exercise such other jurisdiction and powers, not herein enumerated, as may have been heretofore given to them by law. Whenever any indictment shall be found in any court of quarter sessions, for any crime or offence not triable therein, it shall be the duty of said court to certify the same into the court of oyer and terminer next to be holden in such county, there to be heard and determined in due course of law. The judges of the county courts of oyer and terminer and quarter sessions, and every of them, shall have power to direct their writs or precepts to all or any of the (2) This has reference to the extent and ner, that described in the 188th section, being degree as well ag to the kind of punishment; only w misdemeanor, is to be tried in the and therefore, whilst the offence described in quarter sessions. 8 Pittsburgh Leg. J. 290. the 137th section of the Penal Code, is a See tit, « Argon.” : felony and triable only in the oyer and termi- CODE OF CRIMINAL PROCEDURE. 715 sheriffs ur other officers of any of the counties, cities, boroughs or towns corporate of this commonwealth, to arrest and bring before them persons indicted for felonies and other offences, and amenable to the respective court; each of said courts shall have power'to award process to levy and recover such fines, forfeitures and amerce- ments, as shall be imposed, taxed or adjudged by them respectively { each of the said courts shall have full power and authority to establish such rules for regulating the practice thereof respectively, and for expediting the determination of suits, causes and proceedings therein, as in their discretion they shall judge necessary or proper: Provided, That such rules shall not be inconsistent with the constitution and laws of this commonwealth ; each of the said courts is empowered to issue writs of subpoena, under their official seal, into any county of this commonwealth, to summon and bring before the respective court any person to give testimony in any cause or matter depending before them, under the penalties hitherto appointed and allowed, in any such case, by’the laws of this commonwealth. Ibid. § 32. 33. Every person indicted in any court of quarter sessions, or in any county court of oyer and terminer and general jail delivery, may remove the indictment, and all proceedings thereon, or a transcript thereof, into the supreme court by a writ of certiorari, or a writ of error, as the case may require: Provided, That no such writ of certiorari, or writ of error shall issue, or be available, to remove the said indict- ment and proceeding thereupon, or a transcript thereof, or to stay execution of the judgment thereupon rendered, unless the same shall be specially allowed (a) by the supreme court, or one of the justices thereof, upon sufficient cause to it or him shown,(d) or shall have been sued out, with the consent of the attorney-general ; which special allowance or consent shall be in writing, and certified on the said writ. Ibid. § 33. IV. OF THE TRIAL. 34. No person who may hereafter be arraigned on any indictment, and who shall be bound by recognisance to appear and abide by the judgment of the court, shall be placed within the prisoner’s bar to plead to such indictment, or be confined. therein during his trial ; and all persons shall have an opportunity of a full and free communication with their counsel. Ibid. § 34. , 35. Every person indicted for treason shall have a copy of the indictment (c) and a list of the jury and the witnesses to be produced on the trial for proving such indictment, mentioning the names and places of abode of such jurors and witnesses, delivered to him three whole days before the trial.(d@) bid. § 35. 36. On the trial of any indictment for treason or misprision of treason, murder, manslaughter, concealing the death of a bastard child, rape, robbery, burglary, sodomy, malicious maiming and arson, the accused shall be at liberty to challenge, peremptorily, twenty of the jurors, and on the trial of all other indictments the accused shall be at liberty to challenge, peremptorily, four of the jurors.(e) Ibid. § 36. : j a) A writ of error issued without a special allocatur will be quashed. 28. & R. 453. 2 Wh. 118. So, also, if the allocatur be ob- tained before sentence. 16S. & R. 319. (5) It is never granted on mere technical matters, not going to the merits. 2 Barr 244, 35S. &B.199. 3 Y. 39. 6 B. 403. 4B. 424. 1 Wh. 525. There must be strong ground to believe that if the case be not removed, some important principle of law, or the plain justice of the case, will be violated. 4 Pittsburgh Leg. J. 668. (c) The caption is a portion of the indict- ment, and a copy of it must be furnished to the prisoner. 2 D. 342. (d) The word “trial” here means the trying of the cause by the jury, and not the arraign- ment and pleading preparatory to such trial by the jury. 4 Mas. 282. (é) The 86th, 87th, 38th and 89th sections are intended to supply the 152d, 168d, 154th, 155th and 156th sections of the act of 14th April 1834, P. L..368. The changes therein, in reference to challenges, are, that by the 36th section of this act the number of chal« lenges allowed the accused in treason, is twenty, whereas by the 152d section of the act of 1884, thirty-five challenges are allowed ; and that by the 154th section of the act of 1834, the commonwealth is interdicted from challenging, without cause, in any case of felony, whereas by the 37th section of the present act, the commonwealth is only inter- dicted from challenging peremptorily in the cases enumerated in the 36th section, to wit: treason, misprision of treason, murder, man- slaughter, concealing the death of a bastard child, rape, robbery, burglary, sodomy, mali- eious maiming and arson, and in.all other felonies and misdemeanors, is allowed the same number of challenges as the defendant, to wit: four. The object of thus extending 716 CODE OF CRIMINAL PROCEDURE. 37. The commonwealth shall have the right, in all cases, to challenge, peremp- torily, four persons, and every peremptory challenge beyond the number allowed by law in any of the said cases, shall be entirely void, and the trial of such person shall proceed as if no such challenge had been made. Ibid. § 37. 38. All challenges in criminal proceedings shall be conducted as follows, to wit: the commonwealth shall challenge one person, and then the defendant shall chal- lenge one person, and so alternately, until all the challenges shall be made; but if the commonwealth shall refuse to make any challenge, the defendant shall, never- theless, have the right to challenge the full number allowed him by law. Ibid. § 38. 39. When a challenge for a cause assigned shall (a) be made in any criminal pro- ceeding, the truth of such cause shall be inquired of and determined by the court.(2) Ibid. § 39. : tO. te all cases in which two or more persons are’ jointly indicted for any. offence, it shall be in the discretion of the court to try them jointly or severally, except that in cases of felonious homicide, the parties charged shall have the right to demand separate trials; (c) and in all cases of joint trials, the accused shall have the right to the same number of peremptory challenges to which either would be entitled if separately tried, and no more.(d) Ibid. § 40. to the commonwealth the right of challenging, . in the minor felonies, the same number of jurors as the defendant, arises from the fact, that by the present code a large number of offences, which were misdemeanors at common law, are now made felonies; hence, the ex- cluding of the commonwealth from the right of challenge in any felony, is almost totally to deprive her of the right of challenge. In the practical administration of criminal jus- tice, the right of the commonwealth to chal- lenge four jurors peremptorily, is of the deepest importance; it is not an uncommon thing to find in a panel of jurors, one or more persons pledged to the defendant by-personal or social sympathies, or influenced in his favor by worse motives; the right to peremptorily challenge four jurors, is the security of the public against such contingencies. Report on the Penal Code 45. This provision allowing four peremptory challenges to the common- wealth, does not conflict with that clause of the declaration of rights, which provides “that trial by jury shall be as heretofore, and the right thereof shall remain inviolate.” 1 Wr. 46. (a) The commonwealth need not show cause of challenge until the panel is exhausted. 7 W. 685. 1 Wr. 45. : (4) The power to challenge for cause may ‘be exercised at any time before the oath is tendered to the jury. 11H.12. It is good cause of challenge that the juror has con- _ Scientious scruples on the subject of capital punishment. 178. &R. 155. Or that he has formed and expressed an opinion upon the evidence in the cause. 148. & R. 292. See 2 W. & 8S. 202. 1 Granch C. C. 452. Or that the juror has been subpoenaed as a witness by the prisoner. 7 W. 685. Or that he is tenant of one of the parties. 8 W. 804. Or that he had grossly misbehaved himself on a former occasion, declaring that he had tried to acquit any one the judge desired to have convicted ; and that he was ‘a Tom Paine man, and would as lief swear on a spelling book as on the Bible.” 11 H. 12. (c) Where separate trials are granted, the court will not control the discretion of the district-attorney as to which of the defendants shall be first tried. 12 C. 306. (2) This section is new, and is introduced to settle a question in criminal practice, which has produced difficulty. At common law, upon a joint trial, each prisoner may ‘chal- lenge his full number, and every juror chal- lenged as to one, is withdrawn from the panel as to all the prisoners on trial, and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggre- gate of the numbers to which they are re- spectively-entitled. The embarrassments from defect of jurors, resulting from the exercise of this right by numerous defendants jointly indicted, led the courts, at. a very early period, to determine that they had the power, against the will of the prisoners, to sever the panel, and try them severally, if they insisted upon their right of several challenges. This settled the question that prisoners, jointly indicted, could, against their wishes, be tried sepa- rately; but whether prisoners, jointly in- dicted, could demand a separate trial, pre- sented another question ; some insisting that they possess such a right; others contending that such severance is a matter of sound dis- cretion, to be exercised by the court, with that due regard and tenderness to prisoners, which characterizes our criminal jurispru- dence ; and this latter we regard as the better opinion. In the section under consideration this doctrine has been adopted, except as to cases of joint indictments for felonious homi- cide, in which it is proposed to give the ac- cused-the positive right to demand separate trials ; in cases of joint trials, it is also pro- posed to limit the number of the challenges, of all the prisoners, to the number each would be entitled to if separately tried, and no more. As prisoners jointly indicted for felonious homicide have, by this section, the right to sever in their trials, persons so circumstanced will not be affected by this latter provision, in cases of joint trial, as their being so tried is a matter resting entirely in their own choice Report on the Penal Code 45 CODE OF CRIMINAL PROCEDURE. 717 41. All courts of criminal jurisdiction of this commonwealth shall be and are hereby authorized and required, when occasion shall render the same necessary,(a) to order a tales de circumstantibus, either for the grand or petit jury,(6) and all talesmen shall be liable to the same challenges, fines and penalties as the principal jurors: Provided, That nothing herein contained shall repeal or alter the provisions of an act post the 20th day of April 1858, entitled “ An act establishing a mode of drawi Ibid. § 41. g and selecting jurors in and for the city and county of Philadelphia.” 42. No alien shall, in any criminal case whatsoever, be entitled to a jury de medietate linguee, or partly of strangers. Ibid. § 42. r 48. The trial of all treason against the commonwealth, committed out of the jurisdiction of the state, shall be in the county where the offender is apprehended, or into which he shall first be brought. Ibid. § 48. 44. If any person shall become an accessory before the fact, to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force or hereafter to be in force, such person may be indicted, tried, convicted and _ punished in all respects as if he were a principal felon.(c) Ibid. § 44. (a) The court may direct a special venire to issue to two citizens, instead of the sheriff or coroner, whenever in their opinion, the nature of the case requires it. 3 Phila. R. 219. (2) It is an irregularity to call talesmen, unless it appear of record, that the regular panel was exhausted, and an order for tales- men made; but such irregularity, if not ob- jected to, is cured by the verdict, under the 53d section. 10 H. 94. (c) The principle of this section, which pre- scribes the same punishment against accesso- ries before the fact in felony, under the various synonymes of aiders, abettors, counsellors, comforters, &¢., as against principals, is fami- liar to our criminal legislation; it is found in the 7th section of the act of 1718, 1Sm. 113; in the 2d section of the act of 8th March 1780, 1 Sm. 499; in the 2d, 3d and 5th sections of the act of 5th April 1790, 2 Sm. 531; and in the 4th section of the act of 23d April 1829, 10 Sm. 431. There is, therefore, nothing new in the principle of this section, which is founded on the theory of the moral guilt of the accessory before the fact being equal to that of the principal offender. The new principle in the section is that which makes the acces- sory before the fact, guilty of a substantive offence, and which subjects him to punishment for his crime, without postponing it until the conviction of the actual perpetrator; or more precisely speaking, which abolishes in felonies the technical distinction now existing between accessories before the fact and principal of- fenders. This was always the law as regards misdemeanors in which there are no accesso- ries, all being regarded by law as principals; in felony, however, except in certain cases about to be noticed, an accessory cannot be tried before the conviction or outlawry of his principal, unless tried with him. In felonies of frequent occurrence, this was found a great and serious evil, which called for and received partial legislative correction; as early as the act of the 81st May 1718, 1 Sm. 105, it was provided that persons harboring, concealing or receiving robbers, burglars, felons or thieves, or receiving or buying any goods or chattels that should have been feloniously taken. or stolen by any such robbers, -&c., knowing the same to be stolen, might be pro- ceeded against as is therein directed; and that if any such principal felon could not be ‘taken, so as to be prosecuted and convicted for such offence, that nevertheless it shall be lawful to prosecute and punish every such person buying or receiving any goods stolen by such principal felon, knowing the same to ‘be stolen, although the principal felon should not be convicted of the felony. This, how- ever,,embraced only one class of accessories, to wit, receivers of stolen goods, in cases where the principal was not amenable to justice; afterwards, by the act of 23d Sep- tember 1791, 8 Sm. 41, it was provided ‘in all cases of felonies of death, robbery and burglary, it shall be lawful to punish receivers of such felons, robbers and burglars, by a fine and imprisonment, although the principal felons, robbers and burglars cannot be taken, so as to be prosecuted and tried for said offences; which conviction and sentence of said receivers shall exempt them from being prosecuted as accessories after the fact in case the principal felon, robber or burglar shall afterwards be taken and convicted. This act extended only to accessories after the fact, in cases in which the principals could not be taken. | The act of 11th April 1825, 8 Sm. 438, was passed to avoid a difficulty which afterwards _ arose in the prosecutions of receivers of stolen goods, in cases in. which the principals were amenable to justice. The act of 1718 was taken from the 4th section of 4th and 5th Anne, chap. 31, which only authorized pro- ceedings against such receivers before the conviction or attainder of their principals, when such principals could not be taken. Foster, in his discourse on. accomplices, 2 6, p. 878, says on this point: “I know attempts have been made, under various shapes, to prosecute the receiver as for a misdemeanor, while the principal hath been in custody and amenable, but not convicted ; but I think such devices illegal.” The act of 1825 solved the difficulty, by declaring that receivers of pro- perty, knowing it to have been feloniously stolen, may-be prosecuted, although the prin- cipal be not before convicted, and whether he is amenable to justice or not. It will thus be seen, that all our legislation 718 CODE OF CRIMINAL PROCEDURE. 45. If any person shall become an accessory after the fact, to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force, or that may be hereafter in force, he may be indicted and convicted:as an accessory after the fact, to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previ- ously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if con- yicted as an accessory, may be punished ; and the offence of such person, howsoever indicted, may be inquired of, tried, determined and punished, by any court which shall have jutisdiction to try the principal felon, in the same manner as if the act by reason of which such person shall have become accessory, had been committed at the same place as the principal felony: Provided always, That no person who shall be once duly tried for any such offence, whether as an accessory after the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence.(a) Ibid. § 45. 46. If any person hereafter shall be feloniously stricken, poisoned or receive other eause of death in one county, and die of the same stroke, poisoning or other cause of death in another county, then an indictment found therefor by jurors of the county where the death shall happen, shall be as good and effectual in law, as well against the principal in such murder as against the accessory thereto, as if the stroke, poisoning or other cause of death had been given, done or committed in the same county where such indictment shall be found; and the proper courts having jurisdiction of the offence shall proceed upon the same as they might or could do in case such felonious stroke, poisoning or other cause of death, and the death itself thereby ensuing, had been committed and happened all in one and the same county.(b) Ibid. § 46. 47. If any person shall be feloniously stricken, poisoned or receive other cause of with regard to the trial of accessories to felo- nies, before the conviction of their principals, applies only to accessories after the fact, a class of offenders who have had no primary connection with the original crime, and whose guilt only consists in having given comfort and succor to the actual offender after its per- petration; except in cases of receivers of stolen goods, this offence is often almost venial, consisting frequently in parents and friends, influenced by the ties of blood, or the impulses of affection, giving aid and com- fort to an offender whose crime they abomi- nate and deplore. It seems strange that the common law privilege, which exempted acces- sories from liability to justice until the con- viction or attainder of the principal, should be taken away in cases of accessories after the fact, and left in those of accessories before the fact, whose guilt is always as great, and often much greater, than that of the principal. The 45th section proposes putting our statute laws on the subject of accessories to felonies in harmony with justice and reason. Report on the Penal Code 46-8. (a) This section is only an extension of the existing laws, which, as will be seen from the preceding remarks, subjected accessories after the fact, and receivers, to punishment before the conviction or attainder of their princi- pals. It embraces such accessories not only in common law felonies, but those created, or which hereafter may be created, by statute; it authorizes the conviction of such offenders either with or after the conviction of the prin- cipals, or for a substantive offence, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice. It also provides for the case of a party becoming an accessory after the fact in one county to a felony com- mitted in another; giving §urisdiction over =the crime of such accessory to the courts of the county having jurisdiction over the crime of the principal offender. This provision sup- plies the 22d and 23d sections of the act of 1718, 1 Sm. 119, made, probably, to meet a doubt at common law, whether an accessory in one county to a felony in another, was in- oe ineither. Report on the Penal Code 48. (4) This section has been introduced to remove a difficulty which might arise in a case of homicide, where a man had died in one county from an injury, or other cause of death, received in an:ther county. Hawkins, in his Pleas of the Crown, book 2, chap. 25, 336, says, that, ‘“‘at the common law, if a man had died in one county of a stroke received in another, it seems to have been the more general eniuion that, regularly, the homicide was indictable in neither of them, because the offence was not complete in either, and no grand jury could inquire of what happened out of their county.” This inconvenience was remedied by 2d & 8d Edward VI., chap. 24, by which it was enacted, that in such cases, the trial should take place in the county where the death happened. This statute is among those reported by the judges of the supreme court, as being in force in Pennsyl- vania; hence the expediency of this section to meet such a case, should it hereafter arise. Report on the Penal Code 49. 719 death within the jurisdiction of this state, and shall die of such stroke, poisoning _ or other cause of death at any place out of the jurisdiction of this state, an indict- ment therefor found by the jurors of the county in which such stroke, poisoning or other cause of death shall happen as aforesaid, shall be as good and effectual, as well against the principal in any such murder, as against the accessory thereto, as if such felonious stroke, poisoning or other cause of death, and the death thereby ensuing, and the offence of such accessory, had happened in the same county where such indictment shall be found; and the courts having jurisdiction ‘of the offence shall proceed upon the same, as well against principal as accessory, as they coul in case such felonious stroke, poisoning or other cause of death, and the death thereby ensuing, and the offence of such accessory, had both happened in the same county where such indictment shall be found.(a) Ibid. § 47. 48. In order to obviate the difficulty of proof as to all offences committed near the boundaries of counties, in any indictment for felony or misdemeanor committed on the boundary or boundaries of two or more counties, or within the distance of five hundred yards of any such boundary or boundaries, it shall be sufficient to allege that such felony or misdemeanor was committed in any of the said counties; and every such felony or misdemeanor shall and may be inquired of, tried, determined and punished in the county within which the same shall be so alleged to have been fae a8" in the same manner as if it had been actually committed therein.(b) Ibid. § 48. 49. In order to obviate the difficulty of proof as to offences committed during jour- neys from place to place, in any indictment for felony or misdemeanor committed on any person or on any property, upon any stage coach, stage, wagon, railway-car or other such carriage whatever, employed in any journey, it shall be sufficient to allege that such felony or misdemeanor was committed within any county or place through any part whereof such coach, wagon, cart, car or other carriage sh/all have passed in the course of the journey during which such felony or misdemeanor shall have been committed; and in all cases where the centre or other part of any highway shall constitute the boundaries of any two counties, it shall be sufficient to allege that the felony or misdemeanor was committed in either of the said counties through, or adjoining to, or by the boundaries of any part whereof such coach, wagon, cart, car or other carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed; and in any indictment for any felony or misdemeanor, committed on any person or on any property on board any vessel whatsoever, employed in any voyage or jéurney on any navigable river, canal or inland navigation, it shall be sufficient to allege that such felony or misde- meanor was committed in any county or place through any part whereof such vessel shall have passed in the course of the voyage or journey during which such felony or misdemeanor shall have been committed ; and in all cases where the side or bank of any navigable river or creek, canal or inland navigation, or the centre or other part thereof, shall constitute the boundary of any two counties, it shall be sufficient to allege that such felony or misdemeanor was committed in either of the said counties through, or adjoining to, or by the boundary of any part thereof, such CODE OF CRIMINAL PROCEDURE, (2) In the case of a wound, or other cause of death, being given in this state, and the party receiving the same dying in another state (a thing which might very readily occur, as in the case of duels), by the existing law it is at least doubtful whether a prosecution for homicide could be maintained in-either ; Hawkins, book 1, chap. 81, 311,12. Ifa mortal injury, or poison is given or adminis- tered maliciously in the state, and death ensues therefrom out of the state, the act which caused the death, and the malice which influenced the act, the two great essential elements of felonious homicide, have been perpetrated and manifested within our juris- diction; it seems, therefore, fitting, that in such cases, jurisdiction over the crime should be exercised by the state. The section is new, but manifestly necessary in any penal system claiming to be complete. Report on the Penal Code 49. (4) The 48th and 49th sections are intended to obviate difficulties which occur in laying the county, where a crime has been com- mitted, so near county lines, as to render it doubtful in which of two counties it has been actually perpetrated; and to obviate similar difficulties, where the crime has been com- mitted during journeys or voyages by land or water, in carriages or vessels of any kind, which have passed through various counties in the journey or voyage during which the crime hasbeen committed. These sections will be found of real practical value. Report on the Penal Code 49, 720 vessel shall have passed in the course of the voyage or journey during which such felony or misdemeanor shall have been committed ; and every such felony or misde- meanor committed in any of the cases aforesaid, shall and may be inquired of, tried, determined and punished in the county or place within which the same shall be so alleged to have been. committed, in the same manner as if it had actually been committed therein. Ibid. § 49. ; : 50. If on the trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence, that the defendant did not complete the offence charged, but was guilty only of an attempt to commit the same, such person shall not. by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return, as their verdict, that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same; and there- upon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the indictment; and no person so tried as herein lastly mentioned, shall be liable to be afterward prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried.(a) Ibid. § 50. 51. If upon the trial of any person for any misdemeanor, it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for felony on the same facts, unless the court before whom such trial may.be had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and direct such person to be indicted for felony; in which case such person may be dealt with i all respects as if he had not been put upon his trial for such misdemeanor. Ibid. CODE OF CRIMINAL PROCEDURE. 51. 52. No person shall be deemed and adjudged an incompetent witness on the trial of any indictment, for or by reason of such person being entitled, in the event of the conviction of the defendant, to a restitution of his property feloniously taken, or the value thereof, or if fraudulently obtained, to a pecuniary remuneration or compensation therefor, or for or by reason of such witness being liable and subject to the payment of the costs of prosecution. Ibid. § 53. 53. No verdict in any criminal court shall be set aside, nor shall any judgment be arrested or reversed, nor sentence delayed, for any defect or error in the precept (a) The 50th and 51st sections are new, and licet cepit non asportavit. So, where a thief . intended to facilitate the conviction of offend- ers, and avoid unnecessary delay in the admin- istration of criminal justice. By the law as it now stands, if on the trial of an indictment for felony, it appears that some circumstance is wanted to establish the complete technical offence, the prisoner must be acquitted, although the proofs are perfect of an attempt to commit the crime; and on the other hand, where the indictment charges an attempt to . commit a crime, and the proof establishes that the crime has actually been committed, the American courts have generally held that the prisoner must be acquitted, because the mis- demeanor charged, is merged in the felony proved. The operation of the first of these doctrines is best exemplified by decided cases. Lord Hatz, in his Pleas of the Crown, vol. 1, p. 508, thus recited one of these cases: “A, hath his keys tied to the strings of his purse; B., a cut-purse, takes his purse, with the money in it, out of his pocket, but the keys which were hanged to his purse strings, hanged in his pocket; A. takes B. with his purse in his hand, but the strings hanged to his pocket by the keys; it was ruled that this was no felony, for the keys and purse strings hanged in the pocket of A., whereby A. had still in law the possession of his purse, so that went into a shop, took up some goods, intend- ing to steal them, but before he had removed them from the spot on which they lay, dis- covered they were tied to the counter by a cord; upon being tried for stealing, it was held that the property never was either com- pletely severed from the possession of the owner, nor completely in the possession of the prisoner, and he was acquitted.” Sleigh’s Criminal Law 29. In regard to the other doctrine sought to be changed by this section, viz.: that a misdemeanor charged is merged in a felony proved, it has been frequently held in this country that where, on an indictment for an assault, attempt or conspiracy, with Antent, to commit a felony, it appeared that the felony was actually committed, it was the duty of the court to charge the jury, that the misdemeanor had merged, and that the de- fendant must be acquitted. Wharton’s Ame- rican Criminal Law, 33 564, 2294, In England, however, this doctrine has been shaken, if not repudiated by the cases of Rex v. Neale, 1 Dennison’s Cr. Cas. 86, and Rex ». Button, 11 Ad. & Ellis (N. 8.) 829. The section under consideration will, if adopted, destroy the future operation of a subtle fiction, having no origin in substantial common sense. Report on the Penal Code 50. CODE OF CRIMINAL PROCEDURE, 721 issued from any court, or in the venire issued for the summoning and returning of jurors, or for any defect or error in drawing, summoning or returning any juror, or panel of jurors,(a) but a trial, or an agreement to try on the merits,(b) or pleading guilty, or the general issue(c) in any case, shall be a waiver of all errors and defects in, or relative or appertaining to the said precept, venire, drawing, summon- ing and returning of jurors. Ibid. § 54. 54. If any person shall be committed for treason or felony, or other indictable offence, and shall not be indicted and tried some time in the next term, session of oyer and terminer, general jail delivery, or other court where the offence is properly cognisable, after such commitment, it shall and may be lawful for the judges or justices thereof,(d) and they are hereby required on the last day of the term, sessions or court, to set at liberty the said prisoner upon bail, unless it shall appear to them, upon oath or affirmation, that the witnesses for the commonwealth, men- tioning their names, could not then be produced ;(e) and if such prisoner shall not be indicted and tried the second term, session or court(g) after his or her commit- ment, unless the delay happen on the application or with the assent of the defendant, or upon trial he shall be acquitted, he shall be .discharged from imprisonment : (A) Provided always, That nothing in this act shall extend to discharge out of prison, any person guilty of, or charged with treason, felony or other high misdemeanor in any other state, and who by the.constitution of the United States ought to be delivered up to the executive power of such state, nor any person guilty of, or charged with a breach or violation of the laws of nations.(¢) Ibid. § 55. 55. Upon the trial of any indictment for making or passing, and uttering, any false, forged or counterfeited coin or bank note, the court may receive in evidence to establish either the genuineness or falsity of such coin or note, the oaths or affirma- tions of witnesses who may, by experience’ and habit, have become expert in judg- ing of the genuineness or otherwise, of such coin or paper, and such testimony may ve submitted to the jury without first requiring proof of the handwriting or the other tests of genuineness, as the case may be, which have been heretofore required by law; and in prosecutions for either of the offences mentioned or described in the 164th, 165th, 166th and 167th sections of the “ Act to consolidate, revise and amend: the penal laws of this commonwealth,” the courts shall not require the common- wealth to produce the charter of either of said banks, but the jury may find that: fact upon other evidence, under the direction of the court. Ibid. § 55. (@) See 2S. & R. 800. 4P. L. J. 512. arrest, when there has been a competent an@ (2) A trial on the merits is a waiver of all irregularities and defects in the mode of summoning and returning the jurors. 5C. 429. After a trial it is too late to object to mistakes in the process as to the Christian and surname of some of the jurors by whom ithe verdict was rendered. 10 H. 94. Ifa ‘person, not on the panel, be called and per- mitted to sit, the irregularity is cured by this section. 8 H. 236. Butif a stranger answer to the name of one of the panel, and be sworn as @ juror, it is a mistrial, and not within the statute. Com. v. Spring, 10 Leg. Int. 54-6. 1 Am. L. R. 424. See 4P.L. J. 621. , (c) If the prisoner stand mute, and the plea of not guilty be entered by the court, it is within the act. 5 Wh. 67. See 2 Ash. 90. (d) The application must be made"to the court in which the prisoners were indicted. 2 Wh. 502. 3 Y. 264. 7 W. &S. 110. (e) This section only applies where there has been wilful delay on the part of the com- monwealth. 168. & R. 805. 7 W. 866. Not where the trial is delayed by the prisoner. 3 Y. 266. 168. & R. 804. 2 Wh. 501. 7 W. 866. 1D. 9. (g) A prisoner can only claim his discharge on the last day of the second term after his 4 regularly constituted court before whom: he could have been indicted and tried. 5 C. 129.. (h) The act was designed to prevent wrong- ful restraints of liberty growing out of the: malice and procrastination of the prosecutor ;: put not to shield a prisoner, in any case, from: the consequences of any delay made necessary by the law itself; and, therefore, where the array of grand jurors was quashed at two successive terms after the arrest of the pri-- soner, for informality in selecting and draw- ing them, he is not entitled to a discharge. 5 C. 129. (i) This section is a transcript of the 3di section of the act of 18th February 1785, 2 Sm. 277. The words, ‘‘or other indictable offence,” after the word ‘‘felony,”’ have been introduced in order to harmonize the language of the law with the actual practice under it, which has been to extend the provisions of the 3d section of the habeas corpus act, not only to commitments for treason or felony, but to commitments for all criminal offences. Ex parte Walton, 2 Wh. 501. The only change in the proviso of this section is the substitu- tion of the words, ‘the constitution of the- United States,” for the words, ‘‘the confede- ration,” of the original act. Report on the Penal Code 61. 722 CODE OF CRIMINAL PROCEDURE. 56. No witness in any case who enters his or her recognisance, in such sum as the magistrate may demand, to appear and testify in such prosecutions as require his testimony, shall be committed to prison by the judge, alderman or magistrate before whom any criminal charge may be preferred: Provided however, That in all cases triable in the oyer and terminer, where a positive oath is made, reduced to writing and signed by the deponent, setting forth sufficient reasons or facts to induce the firm belief on the part of the judge, magistrate or alderman, that any witness will abscond, elope or refuse to appear upon the trial, that then and in such case the judge, magistrate or alderman may exact bail of said witness to testify. Ibid. § 56. 57. Upon the trial of any indictment for murder or voluntary manslaughter,(a) it shall and may be lawful for the defendant or defendants to except to any decision of the court upon any point of evidence or law,(6) which exception shall be noted by the court, and filed of record as in civil cases,(c) and a writ of error to the supreme court may be taken by the defendant or defendants, after conviction and sentence. Ibid. § 57. 58. If during the trial upon any indictment for murder or voluntary manslaughter, the court shall be required by the defendant or defendants to give an opinion upon any point submitted and stated in writing, it shall be the duty of the court to answer the same fully, and file the point and answer with the records of the case.(d) Ibid. § 58. ‘ 59. No such writ shall be allowed, unless special application be made therefor, and cause shown within thirty days after senténce pronounced ; and if the supreme court be sitting in bane in any district, the application shall be made, and cause shown there ; if the-said court be not sitting, application may be made to, and cause shown before one of the judges of that court, and upon the allowance of such writ, the said court or judge shall fix a time and place for hearing the said case, which time shall not be more than thirty days thereafter; if the said court shall be at that time sitting in banc in any district of the state, the said court or judge, upon the allowance of any such writ, shall make all such proper orders, touching notice to the commonwealth, and paper-books, as may be considered necessary. Ibid. § 59. 60. The writ of error shall issue from the prothonotary’s office of the proper dis- trict, and all orders, decrees and judgments in the case shall also be entered of record there; but the application and final hearing may be made and had before the said supreme court while sitting in any other district. Ibid. § 60. ‘61. Upon the affirmance of the supreme court of the judgment in any case, the same shall be enforced pursuant to the directions of the judgment so affirmed, and the said court may make any further order requisite for carrying the same into effect; and if the supreme court shall reverse any judgment, they shall remand the record, with their opinion, setting forth the causes of reversal, to the proper court for further proceedings. Ibid. § 61. V. OF costs. . 62. In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ‘‘ignoramus,” the grand jury returning the same shall decide and cer- tify on such bill whether the county or the prosecutor shall pay the costs of prose- cution ; and in all cases of acquittals(e) by the petit jury on indictments for the (a) A bill of exceptions to the admission or rejection of evidence, on the trial of one charged by indictment with a criminal offence, other than murder or voluntary manslaughter, is not the subject of considera- tion on a writ of error, although the bill may have been sealed by the court below. 2 W. 285. (?) The prisoner must show that a substan- tial error was committed on the trial, in the admission or rejection of evidence, by which he has been injured; it is not sufficient that an abstract or technical error has taken place. 5 C. 429, (c) The supreme court is limited to a review of the points so noted and filed of record by . the court below. 6 C. 429. 1 Wr. 108. The » act does not authorize an exception to the charge of the court. 6 Pittsburgh Leg. J. 178. The opinion of the court below on a motion for a new trial, is not part of the record; nor can the record be amended by a fact stated therein. 1 Wr. 108. ‘ d@) This section does require the court to write out its charge to the jury. 6 Pittsburgh Leg. J. 178. : (e) If the act be charged 'to have been done feloniously, the jury have no power over the costs. 6 W. 580. Nor where on an indict- ment for a felony, a count for a misdemeanor is joined. 2C, 154. The statute extends to the case of a defective indictment. 4 B. 194. 48. & R. 127. And to an acquittal on a plea of the statute of limitations. 2(C,171. ‘The CODE OF CRIMINAL PROCEDURE. 723 offences aforesaid, the jury trying the same shall determine, by their verdict, whether the county,(a) or the. prosecutor, or the defendant shall pay the the costs,(b) or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their . return or verdict ;(c) and whenever the jury shall determine as aforesaid, that the nrosecutor or defendant shall pay the costs, the court in which the said determina- ton shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days.(d) Ibid. § 62. 63. In all prosecutions where the petit jury trying the same shall acquit the defendant, and shall determine, by the verdict, that the prosecutor(e) shall pay the costs, the defendant’s bill for his subpoenas, serving the same, and attendance of his material and necessary witnesses, shall be included in the costs and paid accordingly. Ibid. § 63. ' 64. The costs of prosecution accruing on all bills of indictments charging a party with felony, returned “ignordmus” by the grand jury, shall be paid by the county ; and the costs of prosecution accruing on bills of indictment charging a party with felony, shall, if such party be acquitted by the petit jury on the traverse of the ‘same, be paid by the county,(g) and in all cases of conviction (h) of any crime, all costs (7) shall be paid by the party convicted; but where such party shall have been discharged, according to law,(4) without payment of costs, the costs of prose- cution shall ‘be paid by the county; and in cases of surety of the peace, the costs shall be paid by the prosecutor or the defendant, or jointly between them, or the county, as the court may direct. Ibid. § 64. 65. In all cases where two or more persons have committed an indictable offence, the names of all concerned (if a prosecution shall be commenced) shall be contained in one bill of indictment, for which no more costs shall be allowed than if the name of one person only was contained therein. ‘Ibid. § 65. jury cannot convict one of two defendants, and acquit the other, and direct the latter to pay the costs. 13 S. & R. 301. The court may set aside w verdict of acquittal, so far as it imposes costs on the prosecutor. 2 Gr. 58. (a) If the jury acquit the defendant, and say nothing as to the costs, the county is not liable. 3 P. R. 365. (5) This does not include the costs of a former bill, on whichsjudgment was arrested. 2. 171. (c) No person can be sentenced to pay costs as prosecutor, unless named by the jury. 7 W. 485. But where the grand jury ignored a bill for assault and battery, and directed the person upon whom it was alleged to have been committed, to pay the costs, it was held sufficient ; although they omitted to designate him as prosecutor. Com. v. Carr, Quarter Sessions, Phila., 28 October 1847. MS. The act does not apply to persons concerned in prosecutions in their official capacity; 2 Am. L. R. 248; 11 Leg. Int. 58; and hence, ina prosecution for keeping a disorderly house, the jury cannot impose the costs on the con- stable who made the return. Com. v. Barr, Quarter Sessions, Lancaster, January 1848. MS. (d) See 2 P. R. 240. 188. & R. 303. This section is taken from the 1st and 2d sections of the act of 8th December 1804, 4 Sm. 204; and the act. of 12th April 1859,'P. L. 528. The only change made in these laws is, that the like privilege of giving security for the payment of costs in ten days is given to the defendant, who, although acquitted, is or- dered to pay the costs, as is given to the prosecutor in case he is ordered to pay the costs. Report on the Penal Code 53, (e) If, on the trial on an indictment for a misdemeanor, the jury acquit the defendant, and direct the costs of prosecution to be paid by the county, the latter is not liable to the defendant’s witnesses for their fees. They are no part of the costs of prosecution. 12 C. 317. g) See 10 C. 440. h) This includes convictions for drunken- ness and vagrancy. 40. 173. 50.38. Pro- vided the defendant be sentenced to hard labor, and the commitments follow the sen- tence, but not otherwise. 12 C. 349. The case of a prosecutor on a bill returned igno- ramus is not within the act; nor that of a defendant acquitted, but ordered to pay the costs by the petit jury; nor where the prose- cutor is ordered to pay costs on an acquittal, 48. & R. 541. Nor where the case is deter- mined by nolle prosequi. 12 S. & R. 94. 6 H. 493. Or the indictment is quashed. 3 R. 487. But it extends to cases where the party may be discharged under the insolvent laws ; or where judgment has been arrested, or reversed on error. 128. & R. 95. Or where the defendant has been pardoned, after con- viction. 48. & R. 449. ° (7) This does not include costs of an at- tachment against a witness for contempt. 2 S. & RB. 292. (%) Unlesg the discharge be a legal one, the county is not liable. 6 P. L. J. 237 724 CODE UF CRIMINAL PROCEDURE. \ VI. GENERAL PROVISIONS. 66. In every case in which it shall be given in evidence upon the trial of any person charged with any’crime or misdemeanor, that such person was insane at the time of the commission, of such offence, and he shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the com- mission of such offence, and to declare whether he was acquitted by them on the ground of such insanity; and if they shall so find and declare, the court before whom the trial is had shall have power to order him to be kept in strict custody, in such place and in such manner as to the said court shall seem fit, at the expense of the county in which the trial is had, so long as such person shall continue to be of, unsound mind. Ibid. § 66. 67. The same proceedings may be had, if any person indicted for an offence shall, upon arraignment, be found to be a lunatic, by a jury lawfully impannelled for the purpose ; or if, upon the trial of any person so indicted, such person shall appear to the jury, charged with such indictment, to be a lunatic, the court shall direct such finding to be recorded, and may proceed as aforesaid. Ibid. § 67. 68. In every case in which any person charged with any offence shall be brought before the court to be discharged for want of prosecution, and shall by the oath or affirmation of one or more credible persons, appear to be insane, the court shall order the district attorney to send before the grand jury a written allegation of such insanity in the nature of a bill of indictment; and thereupon the said grand jury shall make inquiry into the case, as in cases of crimes, and make presentment of their finding to said court thereon; and thereupon the court shall order a jury to be impannelled to try the insanity of such person; but before a trial thereof be ordered, the court shall direct notice thereof to be given to the next of kin of such person, by publication or otherwise, as the case requires, and if the jury shall find such person to be insane, the like proceedings may be had as aforesaid. Ibid. § 68. 69. If the kindred or friends of any person who may have been acquitted as afore- said on the ground of insanity, or in the default of such, the guardians, overseers or supervisors of any county, township or place, shall give security in such amount as shall be satisfactory to the court, with condition that such lunatic shall be re- strained from the commission of any offence by seclusion or otherwise, it shall be lawful for the court to make an order for the enlargement of such lunatic, and his delivery to his kindred or friends, or as the case may be, to such guardians, over- seers or supervisors. Ibid. § 69. 70. The estate and effects of every such lunatic shall, in all cases, be liable to the county for the reimbursement of all costs and expenses paid by such county in pursuance of such order; but if any person acquitted on the grounds of insanity, shall have no estate or effects, the county, township or place to which such lunatic may be chargeable under the laws of this commonwealth relating to the support and employment of the poor, shall, after notice of his detention aforesaid, be liable for all costs and expenses as aforesaid, in like manner as if he had become a charge upon any township not liable for his support under the laws aforesaid. Ibid. § 70. 71. Inall casesof felony heretofore committed, or which may hereafter be committed, it shall and may be lawful for any person injured or aggrieved by such felony, to have and maintain his action against the person or persons guilty of such felony, in like manner as if the offence committed had not been feloniously done; and in no case whatever, shall the action of the party injured, be deemed, taken or adjudged to be merged in the felony, or in any manner affected thereby. Ibid. § 71. 72. The imprisonment awarded as part of the punishment of any offender, shall not stop or avoid the awarding or taking out of execution to levy such respective sums recovered against them, as such offenders refuse or neglect to pay, when such writs are taken out, which executions 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 chattels of such offenders, return- able to the next term or session of the court where such conviction was had, which shall be executed accordingly ;(a@) and the lands, goods and chattels thereby seized (a) A conveyance made to elude the provisions of this section, would be fraudulent and void at common law. 5 B. 114. CODE OF CRIMINAL PROCEDURE. 725 shall be sold and conveyed by the said officers, and such sales shall be as available _and effectual in law as any other sales of land taken and sold for the payment of debts, by virtue of writs of execution awarded out of the courts of common pleas in the respective counties. Ibid. § 72. 73. If any person who hath been, or shall be legally indicted in any court of ‘eriminal jurisdiction within this commonwealth, of treason, felony of death, rob- bery, burglary, sodomy or buggery, or as accessories before the fact to any of the same offences, did not or will not appear to answer to such indictment, or having appeared, shall escape before trial, the same indictment, record and proceedings hall be removed by writ of certiorari into the supreme court of this commonwealth, and it shall and may be lawful for the same court to award a writ of capias, directed .to the sheriff of the county where the fact shall be charged to have been com- ‘mitted ; and if the party indicted shall be supposed, by the indictment, to inhabit or be conversant in any other county, then also to the sheriff of such county ; which writ or writs shall be delivered to the said sheriff or sheriffs, at least two months before the day of the return thereof, commanding the said sheriff or sheriffs to take the person so indicted as aforesaid, if he may be found in his or their baili- wicks, and him safely keep, so that he may have is body before the justices of the said supreme court, at the next supreme court to be holden for the said com- monwealth, to answer to the said indictment, or prosecute his traverse thereupon, as the case may be, and to be further dealt with as the law shall direct; and if the same sheriff or sheriffs shall make return to the same writ or writs of capias, that the person indicted as aforesaid, cannot be found in his bailiwick, then, after such return, a second writ of capias may issue out of the said supreme court, and be delivered at least three months (a) before the return day thereof, to the sheriff of the county where the fact shall be charged to have been committed; and in case the party shall be supposed, by the indictment, to inhabit or be conversant in any other county, then another writ of capias shall also issue, and be delivered at least three months before the return day thereof, to the sheriff of such county; which writ or writs of capias shall be returnable before the justices of the same court,(b) on the first day of the second term next after the teste of the said second writ of capias, so that a term shall intervene between the teste of the return days of the same writ or writs, whereby the said sheriff or sheriffs shall be commanded to take the said person so indicted as aforesaid, if he may be found in his or their baili- wicks, and him safely keep, so that he may have his body before the justices of the said supreme court at the day of the return thereof, to answer or prosecute his traverse as aforesaid; but if he cannot be found in his or their bailiwicks, then to cause public proclamation to be made on three several days(c) in one of the courts of quarter sessions of the peace to be held for the said counties respectively, between the teste and return days of the same writ or writs, that the party so indicted shall appear before the said justices of the said supreme court, at a supreme court to be holden at the time and place contained in the same writs, to answer such indictment or prosecute his traverse thereof, as the case may be, or through default thereof, he will at the return of the same writ or writs be outlawed, and attainted of the crime whereof he was indicted as aforesaid ; and the said second writ of capias, directed to the sheriff of the egunty where the crime hath been, or shall be charged to have been committed, shall contain a further-clause commanding the said sheriff, in case the person indicted as aforesaid cannot -be found in his bailiwick, to cause public advertisement to be made in one or more of the public newspapers of this state, once a week, in six succeeding weeks, between the teste and return of the said second writ of captas, specifying therein the coming of the said second writ of capias to his hands, with the teste thereof, and the time and place of return to be made thereof, naming the person indicted as aforesaid, with his addition of degree, mystery (d) and place of abode,(e) as contained in the writ, stating the nature of the offence charged against him, and commanding him to appear before the justices of the said supreme court! at the day and place directed by the said second writ of capias, to answer to the said indictment or prosecute his traverse a See 1 D. 88, 92. (d) 2D. 92. 8) 1 D. 88, 92. (e) 2D. 92. 1D, 60. (c) 1 D. 88, 92, 726 CODE OF CRIMINAL PROCEDURE thereof, as the case may be, or through default thereof at the return of the said second writ of capias, he will be outlawed and attainted of the crime whereof he shall have been indicted as aforesaid; and if upon the return of the same writ or writs last mentioned, by the said sheriff or sheriffs, that the directions of the said writ or writs had been fully complied with and pursued, and the person indicted as aforesaid shall not yield himself to one of the said sheriffs, so that he may have his body before the justices of the said supreme court at the day and place as directed by the said writ or writs, or having surrendered himself, shall escape from his custody, or having been bailed on his surrender or caption, shall not appear, so that through want of his appearance at the time and place the said supreme court shall appoint for his trial, no trial of his offence can be had, the justices of the said supreme court shall in either of these cases pronounce and declare the said person . indicted as aforesaid, and not appearing at the time and place appointed for his trial as aforesaid, to be outlawed and attainted of the crime whereof he shall have been indicted as aforesaid; the said supreme court to pronounce the judgment of out- lawry against the principal offender, previously to the declaration of outlawry against the accessory, against whom, in all other respects, it shall be lawful to carry on the proceedings together, and at the same time the said supreme court shall declare the legal punishment for the same crime; and wherever imprisonment shall be a part of the sentence for any of the said offences, the term thereof shall commence from the time the person outlawed shall, subsequent to his outlawry, actually be in the custody of the sheriff of the county where the offence was or shall be com- mitted, which sentence shall be fully and particularly entered upon the records of the said supreme court; and ‘the said sentence of outlawry shall have the legal effect of a judgment upon verdict or confession against the person so outlawed, for the offence whereupon he shall have been outlawed, unless and until the same out- lawry shall be afterwards avoided by the judgment of the same court, on plea pleaded in the nature of a writ of error. When any person outlawed as aforesaid, shall be taken either by capias utlagatum, or otherwise, or being in the sheriff’s custody, shall be brought to the bar of the supreme court, the court shall, upon the suggestion and prayer of the attorney- general, award execution (a) to be done upon him, unless the prisoner shall plead either ore ¢enus, or in writing, as his counsel shall advise, that he was not the person who was outlawed, or shall assign errors, in fact or in law, sufficient to prevent the award of execution, in which case the court shall proceed to determine the same either by an inquest or by their own judgment, agreeably to law; and the prisoner shall by such plea have all the benefit and advantage of all legal matters in his favor, as if he or she had brought a writ of error and had assigned the several matters pleaded as errors: Provided, If any person outlawed shall within the space of one year next after the outlawry pronounced against him, yield him to one of the justices of the supreme court, and offer to traverse the indictment whereon the said outlawry shall be pronounced as aforesaid, that then he shall be received to the same traverse ; and being thereupon found not guilty, by the verdict of a jury, of the offence for which he shall have been outlawed as aforesaid, he shall be clearly acquitted and discharged of the said outlawry, and of all penalties and forfeitures by reason of the same, as fully as if no such outlawry had begn had, anything herein- before contained to the contrary thereof notwithstanding. All the costs and charges of the said proceedings to outlawry shall be borne and paid by the county where the crime is laid to have been committed: Provided. always, That if the person or persons so outlawed shall have real or personal estate, the same or so much thereof as shall be necessary, shall be sold in the manner pro- vided by the seventy-second section of this act, and the net proceeds of such sales shall be applied to the payment of the said costs and charges, or so far as the same shall extend, in exoneration of the county.(b) Ibid. § 73. a) 1D. 87, 91. require no amendment of import : - 6 This section is taken from the Ist, 2d though proceedings in outlay hate ie and 8d sections of the act of 23d September rarely resorted to in our state, yet they are 1791, 8 Sm. 87, and is nearly w transcript indispensably necessary in every complete thereof. They form in themselves as good a system of criminal jurisprudence. Report on system of outlawry as can now be suggested, the Penal Code 54 and are so skilfully and ably drawn, as to * CODE OF CRIMINAL PROCEDURE. 727 74, Whenever any person’shall be sentenced to imprisonment at labor by separate or solitary confinement, for any period not less than one year, the imprisonment and labor shall be had and performed in the state penitentiary for the proper district : Provided, That nothing in this section contained shall prevent such person from being sentenced to imprisonment and labor, by separate or solitary confinement, in the county prisons now or hereafter authorized by law to, receive convicts of a like description : And provided also, That 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 of November and the fifteenth of February of any year.(a) Ibid. § 74. 75. No person shall be sentenced to imprisonment at labor, by separate or solitary confinement, for a period of time less than one year, except in the counties where, | in the opinion of the court pronouncing the sentence, suitable prisons have been erected for such confinement and labor ; and all persons sentenced to simple imprison- ment for any period of time, shall be confined in the county jail where the convic- tion shall take place: Provided, That in the counties where suitable prisons for separate or solitary confinement at labor do not exist, and the sentence shall be for less than one year, simple imprisonment shall be substituted in all cases for the. separate and solitary confinement at labor required by the ‘‘ Act to consolidate, revise and amend the penal laws of this commonwealth.” Ibid. § 75. 76. Whenever, hereafter, any person shall be condemned to suffer death by hang- ing, for any crime of which he shall have been convicted, the said punishment shall be inflicted upon him within the walls or yard of the jail of the county in which he shall have been convicted ; and it shall be the duty of the sheriff or coroner of the said county to attend and be present at such execution, to which he shall invite the presence of a physician, the district attorney of the county, and twelve reputable citizens, who shall be selected by the sheriff; and the said sheriff shall, at the request of the criminal, permit such ministers of the gospel, not exceeding two, as he may name, and any of his immediate relatives, to attend and be present at such execution, together with such officers of the prison, and such of the sheriff’s deputies as the said sheriff or coroner, in his discretion, may think it expedient to have present ; and it shall be only permitted to the persons above designated to witness the said execution: Provided, That no person under age shall be permitted, on any account, to witness the same. And after the execution, the said sheriff or coroner shall make oath or affirmation, in writing, that he proceeded to execute the said criminal, within the walls or yard aforesaid, at the time designated by the death warrant of the governor; and the same shall be filed in the office of the clerk of the court of oyer and terminer of the aforesaid county, and a copy thereof published in (a) Whilst the 74th and 75th sections, ex- cept the proviso to the 74th section, are new in form, no material alteration is made in the law as it now stands. The 74th section re- quires that sentences of imprisonment at labor by separate or solitary confinement for a pe- riod of time not less than one year, shall be performed in the state penitentiary of the proper district, or in such county prisons as are now, or may hereafter be authorized to receive convicts of a like description; and the 77th section prohibits sentences of impri- sonment at labor by separate or solitary con- finement for a less period of time than one year, except in the counties where suitable prisons have been or shall hereafter be erected for such confinement and labor. This section also provides that in all cases where the sentence is for simple imprisonment only, the offender shall be confined in the county where the conviction shall take place. The sections taken together require: 1. That all persons sentenced to simple imprisonment, shall be confined in the county where the offender is convicted. 2. That no person shall be sen- tenced to imprisonment at labor by separate or solitary confinement for a less period than one year, except in the counties where, in the opinion of the court passing the sentence, prisons are provided suitable for such con- finement and labor. 38. That all imprison- ment at labor by separate or solitary confine- ment, where the sentences exceed one year, shall be in the state penitentiary for the proper district, except in the counties in whose prisons convicts of a like description are authorized to be imprisoned, and in those counties such convicts may be sent to the county prisons as heretofore. The provision contained in the last proviso to the 74th sec- tion, is copied from the 1st section of the act 18 February 1847. P. L. 126. Report on the Penal Code 54. In New York, a similar law to that contained in this proviso, was held to be merely directory, and a failure to comply with its requirements, not to avoid the sen- tence. 1 Park. Cr. R. 374. 728 CODE OF CRIMINAL PROCEDURE. two or more newspapers, one, at least, of which shall be printed in the county where the execution took place. Ibid. § 76. ; : 77. All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor, murder and voluntary manslaughter excepted, shall be brought or exhibited within the time and limitation hereafter expressed, and not after ;(a) that is to say, all indictments and prosecutions for treason, arson, sodomy, buggery, robbery, burglary, perjury, counterfeiting, forgery, uttering or publishing any bank note, check or draft, knowing the same to be counterfeited or forged, shall be brought or exhibited within five years next after the offence shall have been com- mitted; and all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed :(b) Provided however, That if the person against whom such indictment shall be brought or exhibited, shall not have been an inhabitant of this state, or usual resident therein, during the said respective terms for which he shall be subject and liable to prosecution as aforesaid, then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an inhabitant of, or usually resident within this state : And provided also, That indictments for misdemeanors committed by any officer of a bank, or other corporation, may be commenced and prosecuted at any time within six years from the time the alleged offence shall have been committed.(c) Ibid. § 77. ‘ ; 78. All fines imposed upon any party, by any court of criminal jurisdiction, shall be decreed to be paid to the commonwealth; but the same shall be collected and received, for the use of the respective counties in which such fines shall have been imposed as aforesaid, as is now directed by law.(d) Ibid. § 78. (a) The finding of an informal presentment is not sufficient to take the case out of the statute. 1 Cranch C. C. 485. Nor will a former indictment, on which a nolle prosequi was entered. 8 McLean 469, (6) The limitation need not be specially pleaded; it may be taken advantage of on the general issue. 40. 259. See 8 Cr. C. C. 442, 5 Cr. C. C. 88, 60, 368. (c) This section considerably extends the ex- isting laws relating to the limitation of crimi- nal prosecutions; these only relate to misde- meanors, in all of which prosecutions must be commenced within two years, if the alleged offender be accessible to justice, except in forgeriés, perjuries and misdemeanors by bank officers, the limitations in the latter cases being six years; the present section ex- tends the principle to all crimes, murder and voluntary manslaughter excepted. Where the alleged offender is accessible to justice, prose- cutions should not be unnecessarily delayed ; such delays do not often take place from worthy motives; charges are often kept sus- pended over the heads of the accused to sub- serve the ends of the accuser, and the accused kept in a state of moral slavery, to which no human being should be subjected; it is true, that stale prosecutions are looked upon with an unfavorable eye by courts and juries, but the very existence of this feeling in criminal tribunals is a strong argument in itself in favor of reasonable limitations in criminal prosecutions. In the more serious class of felonies and misdemeanors the limitation has been extended to five years; in those of less malignity the limitation of two years has been adopted. Report on the Penal Code 55. (@) It will be perceived that in prescribing the punishment of the various crimes, the maximum amount to be inflicted has only been defined; the principle found in some codes, that upon conviction, a certain mini- mum amount of punishment shall, under any state of circumstances, be imposed on the culprit, being entirely excluded ; a broad dis- cretion being thus given to the courts, in order that the extent of punishment imposed should, in every case, bear a due relation to the relative enormity of the offence. It is this enlightened and humane principle which distinguishes modern criminal jurisprudence from the system of blind and indiscrimi- nate severity, which it has happily super- seded; a system which seemed to regard a criminal as a noxious excrescence on society, to be ruthlessly extirpated, rather than as a diseased member, to be rendered, if possible, whole. In all modern penal legislation, the truth of this principle has been admitted, but in its mode of application there has been much variance; in some, a maximum extent of punishment has been prescribed by the lawgiver, leaving its modification to the intel- ligent and experienced discretion of the crimi- nal tribunals; in others, a maximum and minimum extent of punishment have been provided, greater or less than which, the tri- bunals are forbidden to inflict under any pos- sible state of circumstances; in some, the ex- tent of punishment, within certain prescribed limits, is referred to the discretion of the jury by whose verdict the criminal has been convicted; in others, crimes have been divided into degrees, more or less minute, to which graduated punishments have been assigned, and the jury trying the offender have been required, in the event of his conviction, to determine the degree of his guilt. In effect, the two last systems are the same, as the power to determine the degree of punishment as affixed by law, gives substantially the power to impose the punishment to be inflict- ed for the, crime. Neither of these systems has been absolutely adopted in Pennsylvania; a mean between the first two has been taken ; in minor crimes, maximum punishments only have been pre- scribed; the minimum principle being intro- duced in reference to those of a graver nature. In all these systems, the leading object of the lawgivers has been to producé a harmonious relation between the real magnitude of the ,erime and the severity of its punishment; the difference between them being only as to the most effective means of accomplishing an object equally desired by all. Amongst them, the commissioners give the decided preference to that which simply de- termines the maximum punishment to be in- flicted on the crime, leaving all intermediate degrees of punishment to be determined by the criminal tribunals, according to the greater or less atrocity of the circumstances attending the commission of the crime. That such an important discretionary authority would be more steadily, uniformly and consistently exercised, by an upright, learned, responsi- ble and experienced tribunal, than by a jury, is a proposition not likely to be disputed by any one familiar with judicial proceedings. ‘The sole apparent advantage to be derived from requiring, by law, that a party convict- ed of a crime shall receive a given amount of punishment, whatever may be its intrinsic character, and under whatever circumstances of extenuation it may have been committed, is to prevent parties convicted of crimes of heinous character from obtaining immunity through the weakness or dishonesty of judges. The instances of the former are rare in this commonwealth ; of the latter, none is believed by us ever to have existed; the purity of our judiciary is one of the things which calumny has, as yet, left untouched. To guard against a theoretical and problematical evil, it does not seem wise or expedient to introduce a positive and actual one; whoever has been long and extensively engaged in the practical administration of criminal justice, under the maximum and minimum systems of punish- ments, has found occasions in which the sta- tutory minimum punishment has greatly ex- ceeded that which ought to have been inflicted CODE OF CRIMINAL PROCEDURE. 29 on the offender under the special circumstances of: the case. The experienced criminal magistrate knows that the same nominal crimes present almost infinite shades of atrocity ; whilst in some, no extenuating circumstance softens the malig- nity of the offence, or challenges mercy for the offender, in others, the established facts are barely sufficient to constitute the techni- eal crime charged, and the attendant circum- stances, such as to appeal strongly to the best regulated sympathies. In such cases, it not unfreqently happens that the jury, knowing the extent of the punishment which must fol- low a conviction, and regarding it as greater than the intrinsic turpitude of the offence calls for, acquit a culprit, whom, under a different system of punishment, they would have con- victed. Even when juries, reasoning of assault and battery, 294. of perjury, 204. of malicious mischief, 295. of riot, 295. _of larceny, 296. Ss of assaulting and threatening, 296. ‘of action for firimg woods, 381. DOGS. * Proceedings in reference to mad dogs, 297. s Liabilities of owners of dogs, 297. When dogs the subject of pene 297, Order to destroy a dogs 2 98. nh DOMESTIC ATTACHMENT. See Attachment, Domestia. ° DOWER. | Definition of, 56, 522. € Devise or péquest to widow is in lieu of dower, 622 Widow to elect, 522. Form of release of dower, 422.. DRUNKENN ESS. Effect of, fn criminal cases, 299-800. In case of contract, 300. Effect of insanity produced by, 800. | Penalty for intoxication, 298. How enforced, 298.°°. Limitation, 298. Form of conviction, 298. “Execiition to levy forfeiture, 299. Penalty for public drunkenness, 299. -When it disqualifies a witness; 343. Penalty for farnishing liquors to- drunkards, 428, ane for marrying a person whilst intoxicated, 559. + “. e¥ % . 172 INDEX. DUELLING. Disqualjfication incurred by duelling, 301. Punishment on conviction, 301. of seconds, &c., 801. of concealment, 301. of inciting to a duel, 301. A Any challenge to fight, a misdemeanor, 801. HAVES. -DROPPING. Definition of, 56, 302. Indictable at common law, 302. ELECTIONS. Bribery at elections punished, 202. Election of constables, 218-20. \ Constables to give notice of. township elections, 225. Election of justices of the peace, 463-6. . Election of inspectors of the general election, 802. . Provisions relating to the general elections, 306, 323. Duties of assessors, 304. Mode of conducting elections, 308. Of the qualified electors, 310. Duties of peace officers, 312. Meeting and duties of return judges, 313. Election of township officers, 315. Contested elections of county and township nee 318. Wagers on elections, 319. 8 Penalties for misconduct, 820. How places of election to be ay 317. EMBEZZLEMENT. By officers of municipal corporations punished, 323. By trustees, 824. By bankers, brokers, attorneys, merchants or agents, 324. By officers of corporations, 324. By bank officers, 325. By employees of railroad companies, 326, EMBRACERY. Punishment of, 325. What amounts to, 325. ENGROSSING. Definition and punishment of, 327. ESCAPE. Punishment for an, or for aiding or permitting, 327-8. Responsibility of sheriffs and constables, 328. Warrant for an escape, 329. ESCROW. Definition of, 56. EVIDENCE. In case of adultery, 126. Of indenture of apprenticeship, 138, Of promise to pay the debt of another, 406. In attachment in execution, 174. When entries in a family bible are evidence, 198, 832. Evidence in case of bigamy, 193. In action on a bill of exchange or note, 196, 334. In actions against common carriers, 211. Evidence in case of conspiracy, 216-17. When deed may be read in evidence, 270, 382. Docket entry how proved, 282, 382. What sufficient to convict of duelling, 801. Definition of evidence, 330. General rules of evidence, 380. Of written evidence, 831. When parol evidence adniissible to affect a written contract, 833. Book entries, when evidence, 884. Of accounts, 337. Depositions, how taken, 337. . INDEX. 778 EVIDENCE — Continued. ‘ Of handwriting, 840. Of hearsay evidence, 341. Of witnesses, 342. Evidenceof experts, 343. When party may be a witness, 344. Competency of witnesses, 344-6. On prosecution for fornication and bastardy, 391. When record of judgment evidence, 448. Evidence before justices, 91. in action on judgment of justice of an adjoining state, 87. When identity of name evidence of personal identity, 87. Evidence in action for malicious prosecution, 556. Notarial certificates, when evidence, 588. Evidence in penal actions, 614. Evidence in prosecution for perjury, 616. When declaration of agent will be evidence, 629. Evidence in action for negligence, 587. Evidence in prosecution for seduction, 666-7. Of the evidence on a summary conviction, 670. How records of other states authenticated, 735. EXACTION. See Extortion. Definition of, 56. EXECUTION. In attachment in execution, 170, 171, 175. Form of execution against garnishee, 178. Bail for stay of execution, 103, 348. Of the execution after affirmance on certiorari, 102. Constable to indorse time of levy on, 221. Return to must be in writing, 348. Execution against a constable, 222. Duties of constable on execution, 105, 221, 347. Executions, how enforced against counties and townships, 224. In case of school districts, 254 n. Of the stay of execution, 102, 348. Execution in case of trespass, 352. How issued against plaintiff, 292 n, Execution to levy fine for intoxication, 299. Execution for debt, 347. Not to issue, after five years, without revival of judgment, 105. Of the service of an execution, 105, 347. Legal requirements of an execution, 347. When execution a lien, 349, What may be taken in execution, 348, 349, Of the property exempt from execution, 350. Exempted property to be appraised, 350. Form of appraisement, 351. | Bail for stay of execution, not entitled to stay, on judgment against him, 108. Execution against corporation, 351. by extcutrix against administrators, 356. by surviving administrators against executors, 356. for damages for firing woods, 381. When fixtures liable to execution, 382. Execution for penalty for illegal hunting, 423. When justices to issue execution, 105. Constable may take forthcoming bond, 221. Goods pledged may be taken in execution, 613. EXECUTORS AND ADMINISTRATORS. Executors de son tort, who, 57. Administrator sued as executor may plead in abatement, 75. Executors and administrators may appeal without bail, 134. When they may assign indenture of apprenticeship, 144. May sell at auction, 182. : Set-off admitted, in actions by or against, 271. When set-off allowed, 271. Who shall be executors or administrators, 353. Their duties and liabilities, 853-5, Oath, 353. Bond of administrators, 353. é ¢ 774 INDEX. ‘EXECUTORS AND ADMINISTRATORS — Continued. Summons, administratrix against executors, 855. : ; surviving executor against administrators with the will annexed, 356. Execution, executrix against administrators, 356. surviving administrators against executors, 356. Executor of special partner may continue the business, 610. Medicine and medical attendance to be first paid out of decedent’s estate, 617. ". EXTORTION. Definition of, 56, 357. Difference between exaction and extortion, 56. Punishment of extortion, 357. ; Extortion by persons working on roads punished, 357. Taking fees before service, when not to be deemed extortion, 357. FACTORIES. What shall be deemed a day’s labor in, 359. At what /age minors may be employed, 359. Penalty for employing minors under age, 359. Penalty on parents and guardians for permitting minors to be so employed, 359. FACTORS. Punishment for pledging goods consigned, or embezzling the proceeds, 860. Information, 360. ~ Bights and responsibilities of factors, 360-1. FALSE IMPRISONMENT. Definition of, 57. What is a false imprisonment, 361. Justices have no jurisdiction in actions for, 693. Limitation of actions for, 546. FALSE PERSONATION. Punishment of, 361. FALSE PRETENCES. Frauds at common law, 362. Provisions @f the penal code, 362. What constitutes an intent to defraud, 365. What constitutes a false pretence, 362. What are valuable things within the act, 364. FEES. In case of attachment, 168. of attachment in execution, 178. Attorneys not entitled to fees as witnesses, 181. Constable to give bill of particulars, 222. Table of fees in various cases, 283-96. Fees may be taken before services performed, in certain cases, 371. Penalty for taking illegal fees, 357. Bill of particulars to be given, 371. Sheriffs’ and constables’ poundage, 371. Tables of fees to be posted in offices, 371. Fees of justices of the peace and aldermen, 365, 368, 870, 871. Fees of constables, 867, 370. Decisions relative to illegal fees, 371-2. In action for firing woods, 381. Notice.of intended action against an alderman for taking illegal fees, 477 Justices have jurisdiction of actions for taking illegal fees, 452. Fees of prothonotaries, when and how recoverable, 642-8. * FELONY. . Definition of, 57. Civil remedy not to merge in, 724. FEMALE. Must give bail on appeal, 184. Not to be liable to arrest for debt, 873. FEME SOLE TRADER. Who to be deemed, 873. How sued, 873. When married women may be so decreed, 874 Decisions relating to feme sole traders, 374. + INDEX. =t =! an FENCES. How fences to be constructed, 374. Division fences, 374. Penally for malicious destruction of, 3875. Decisions relative to, 875-6. FERRIES. Penalty for cutting ferry rope, 377. Owners to sink their ropes, 877 Information for cutting ferry rope, 377. Warrant, 377. Information against keeper of ferry, 377. Warrant, 377. Sailing boats to strike their masts, 378. Information against master for refusing to do so, 378. Warrant, 378. FIRE. Penalty for setting off or selling fireworks, 379. Penalty for firing guns at certain times, 379. Penalty for firing woods, 879. Information for firing woods, 380. Warrant, 380. Warrant for damages, 380. Warrant for freeholders to estimate damages, 380. Return of freeholders, 381. Execution, 381. Docket entry, 381. FIXTURES. What are fixtures, 382. Incidents of fixtures, 382. When liable to execution, 382. Tenant must remove fixtures during his term, 382. When they pass by a sale of the realty, 659. FLOATING LUMBER. Disposition of floating lumber, 383-5. Compensation for taking up floating lumber, 383-5. Duties of justices, 383-5. FORCIBLE ENTRY AND DETAINER. Definition of, 57, 386. How punishable, 386. Decisions relative to forcible entry and detainer, 387 FORESTALLING. Definition and punishment of, 327. FORGERY. Definition of, 58, 389. What amounts to forgery, 389. Warrant for forgery, 389. Punishment of forgery, 388. Consideration of forged instruments may be recovered back, 388 FORNICATION AND BASTARDY. Who may be convicted of, 390. Mother may be a witness, 390. Where indictable, 390. Decisions relative to, 391. Punishment for concealing death-of bastard, 390. Warrant for bastardy, 892. Commitment, 392. Warrant for concealing the death of a bastard child, 392 FORTUNE TELLING. Punishment of, and of analogous offences, 393. Evidence in case of, 3938. FRAUD. See False Pretences. Definition of, 58. Of frauds at common law, 362. Statutory frauds, 394. ; Proceedings where fraudulent judgment is confessed before a justice, 85. 1 Ylacdellartk GAP 2 /e2. AUD— Continued. Fraudulent conveyances void, as against creditors, 396. Punishment for fraudulently assigning or secreting goods, 395. for fraudulent destruction of written instruments, 394. for fraudulent insolvency, 394. FREEHOLD. When pleadable in stay of execution, 102. Who are freeholders, 897. Practice on plea of freehold, 897. Privileges of freeholders, 397. FUGITIVES FROM JUSTICE. Cannot be indicted in Pennsylvania, 58. To be delivered up, on demand of the executive, 898. Penalty for obstructing agent, 898. Decisions relative to fugitives, 398-9, GAMBLING. Of gambling-houses, 400. - Penalty for keeping, 400. Who to be deemed common gamblers, 400, Punishment for gambling, 400. Gambling apparatus may be seized, 400. Witness not liable to prosecution, 400. Gambling-houses may be broken open, 401. Gambling apparatus may be destroyed, 401. No replevin to issue, 401. Punishment for enticing to visit gambling-houses, 400. Penalty for cock-fighting and certain games, 401. Appropriation of penalties, 402. d Penalty on tavern-keepers for promoting gambling, 402, Money lost at play not recoverable, 402. Gaming contracts void, 402. Wagers on elections to be void, 319. Penalty for betting on elections, 319. Duties of officers, 319. . Billiard rooms and bowling saloons, 403. Decisions relative to gambling, 404. GAME. Penalty for killing, out of season, 405. How recoterable, 405. GARNISHEE. Definition of, 70. Summons against, in domestic attachment, 161. Proceedings against, in attachment in execution, 174, ’ Who may be made garnishee, 172. Interrogatories, 177. Rule to answer, and notice, 177. Answers, 177. Execution against, 178. GROUND-RENT. Actions for, before justices, 256. Who may sue for, 256. Who liable for, 256. When to bear interest, 256. Form of ground-rent deed, 520, GUARANTY. Definition of 406. Construction of, 467. Rights of guarantors, 406-7. To be in writing, 406. GUARDIANS. : May appeal without security, 97. HANDWRITING. Evidence of, 340. Comparison of hands, when evidence, 340, INDEX, 777 : HAWKERS AND PEDLARS. \ Who may be licensed, 408, 409. ‘ Penalty for peddling without license, 409. \ Licenses, how granted, 408. \ Tin and clock pedlars, 410. HOMICIDE. Definition of, 58, 410. Different kinds of, 58, 410. Justifiable homicide, what, 58, 411. Excusable homicide, what, 58, 411. Felonious homicide, what, 59, 410. Felo de se, who is, 59. Manslaughter, definition of, 59, 61, 411. Voluntary manslaughter, 59, 411. Involuntary manslaughter, 59, 411. When the production of an abortion will be murder, 76. » Punishment for concealing death of bastard, 390. Murder at common law, 410. Degrees of murder, 411, 412. Punishment of murder in the first degree, 411. in the second degree, 411. \ of manslaughter, 412. of attempt to kill, 412. HORSE-RACING. Penalty for horse-racing, 418. Horses may be seized, 413, Wagers to be void, 414. May be recovered back, 414. Penalty for printing advertisement of, 414. Persons guilty of fast driving liable criminally, 414, 587. HORSE-STEALING. . Sale of stolen horses not to change property, 417. Punishment for horse-stealing, 417. Reward for apprehending and convicting offenders, 417. Person entitled to reward may be a witness, 417. Information for horse-stealing, 417. Warrant, 417. Commitment, 418. - HOUSE OF. REFUGE. Who may be committed to, 418, 419, 420. Duties of justices, 418, 420. Revision of commitments, 418, 420. Form of commitment, 421. HUNTING. Constable to present offenders, 422, Penalty for unlawful hunting, 422. Warrant, 422. Conviction, 422. Execution for penalty, 423. HUSBAND AND WIFE. See Accessory. Coverture. Marriage Incompetent as witnesses for or against each other, 345, 460. Exceptions to the rule, 345, 460. Property of married woman to he for her separate use, 562. How it may be conveyed, 562. Liability of husband, 562. Married woman may make will, 562. 6 How suit to be brought for debt of married woman, 562. by a married woman, 563. Decisions relative to marriage, 563. - s When a wife is excused for criminal misconduct, 561. Proceedings for desertion, 623. -IMPRISONMENT. See Arrest. False Imprisonment. Definition of, 59. How and where sentence to imprisonment to be inflicted, 724. 778 INDEX. INCEST. _ Definition of, 60. _ Punishment of, 424. Evidence in case of, 424. INDICTMENT. Definition of, 60. Who is the subject of an indictment, 425. INDORSEMENT. See Bills of Exchange. Bonds. Promissory Notes. When agent may make, 194. Form of qualified, 195. Rights of indorsers, 195, 689. When they may be witnesses, 196. Liabilities of indorsers, 636. What notes to be negotiable, 637. Consideration of forged, may be recovered back, 689. INFANT. When of age to do certain acts, 51, 68, 425. When bound by their contracts, 425-6. Infancy, how pleaded, 426. When the subject of a criminal prosecution, 425. Cannot make an attorney, 528. May act as attorney, 528. Abandonment of, punished, 257. Maltreatment of, punished, 257. INFORMATION. For arson, 150. assault and battery, 153. pledging goods by a factor, 360. cutting ferry rope, 377. refusing to sink ferry rope, 377. not striking mast of a sailing boat, 378. firing woods, 380. horse-stealing, 417. INFORMER. Definition of, 60, 427. . When not liable to costs, 427. When incompetent as witness, 427. . May bring action in his own name, 427. INNS AND TAVERNS. Innkeepers not to harbor or trust apprentices, 428. Penalty for so doing, 428. Penalty on tavern-keepers for promoting gaming, 427. Good entertainment to be kept, 427. Debts for liquors not recoverable, 428. Penalty for selling liquor without license, 428, 480. By what measure liquors to be sold, 428. Penalty for adulterating liquors, 125, Lien on horses, 430. Penalty for furnishing liquors to minors, lunatics or intemperate persons, 428, 429, Who may give notice not to furnish liquors to such persons, 428. Penalty for furnishing, after notice, 429. Civil responsibility for damages, 429. Gompensations to informers, 429, 480. When licenses may be revoked, 429. Decisions relative to innkeepers, 431. Petition for a tavermlicense, 531. \ Licenses to be framed, 429. \ Intemperate persons not to be employed in, 429. Innkeepers may provide safes for security of valuable property, 430. May give certain notices, 430. In default, not to be liable, 431. Lien on baggage for boarding, 481. INSOLVENTS. . Jurisdiction of the courts, how exercised, 4388. Proceedings to obtain discharge from custody, 484. INDEX. 779 INSOLVENTS — Continued. Petition, and proceedings thereon, 485. Oath of insolvent debtor, 485. Effect of discharge, 486. Of after-acquired property, 437. When relief given to persons sentenced by a criminal court, 437. Allowance to poor and insolvent debtors, 488, Petition to give bond, 439. Bond of insolvent, 489. Petition for discharge, 440. Notice to creditors, 441. Form of discharge, 441. INSTALMENTS. When action lies for money payable by instalments, 442. INTEREST. Definition of interest, 442. Rates of interest in the different states, 442-3. Usurious interest not recoverable, 4438. Judgments and verdicts to bear interest, 443. Tender suspends interest, 444. What claims bear interest, 443. Decisions relative to interest, 443. Of compound interest, 445. INTERROGATORIES. To garnishee in attachment, 177. How propounded to witnesses under commission, 338. When to be filed, on rule to take depositions, in a suit before a justice, 95. JAIL. Where sentence of imprisonment to be endured, 446. Effect of second conviction, 446. Authorities relative to, 446. JUDGMENT. Judgments to bear interest, 448. When justices may open judgment, 448. When record of judgment conclusive evidence, 448. Decisions relative to judgments, 447-8. When justice may give judgment exceeding $100, 85, 448. Judgment is valid until reversed, 447. , Lien of judgment, 449. Judgment to be for the use of bail paying the same, 103. Of the judgment in a summary conviction, 670. JURISDICTION. Definition of, 451. Want of, may be taken advantage of at any time, 453 Waiver will not give jurisdiction, 451. Civil jurisdiction of justices, 82, 85, 451. : Criminal jurisdiction, 468. ‘i Decisions relative to the jurisdiction of justices, 451. Jurisdiction of justices, under U.S. laws, 479. JURY. Rights and duties of jurymen, 737. A week in a jury-box, 756. ‘JUSTICES OF THE PEACE. Trerr ELEcTIon, QUALIFICATION, &0. Fees of justices, 365-71. How and when elected, 456, 463. Contested elections, 464. Number of, how increased, 465. Elections to supply vacancies, 466. Justices’ commissions, 466, 474. Justices’ bonds, 467. Removal and residence, 468, 477. Jurisdiction of aldermen, 468. Torin CIVIL JURISDICTION. Pleas in abatement before justices, 73. Appeals from the judgments of justices, 97, 182. To enter tender of judgment on the docket, 98, 186. 780 INDEX. JUSTICES OF THE PEACE— Continued. Not to issue process against the body, 89, 148. Duties in domestic attachment, 158. ~ Proceedings against absent and fraudulent debtors, 162. Jurisdiction in attachment in execution, 171. Cannot enter judgment on warrant of attorney, 87, 181. Duties on certiorari, 100, 205. To indorse costs on execution, 106, 222. Including return thereof, 106. To keep account of costs, 246, 282-96. When justices may give damages, 259. Of set-off before a justice, 93, 2738. Manner of .keeping the docket, 107, 280. Duties in taking depositions, 95, 337. Have jurisdiction of action on insolvent bond, 84, 452. When they may open judgments, 448. When they may enter judgment for more than $100, 85, 448. Their civil jurisdiction, 82, 85, 455. Duties in relation to swine running at large, 680. Proceedings in a civil suit before a justiee, 111. ’ contested civil case, 114. Jurisdiction in actions on contracts, 82, 451. Party suing in court for less than $100 to lose costs, 85. Jurisdiction to compel landlord to defalcate, 86. Actions for rent, 86. Actions for penalties, 86. Actions on foreign judgments, 87. Process and service, 87. Bail-piece, effect of, 88. Process in case of non-residents, 89. Amicable actions, 90. Judgments by default, 90. Proceedings on the trial, 91. When judgment to be final, 92. When cause may be referred, 92. How judgment to be given, 92. When parties may appeal, 93. Effect of special agreements in writing, 94. Bail on adjournment, 94. Depositions, how taken, 95. Proceedings before referees, 96. How vacancies to be filled, 96. How referees to be sworn, 96, Powers of referees, 96. ia Justices to issue subpoenas to appear before referees, 97. How certain penalties recoverable, 97. Right of appeal, 97. ~When re-hearing to be granted, 97. Bail on appeal, 97. Costs on appeals, 98. How and when appeal to be perfegted, 99. Proceedings on neglect: to file appeal, 99. Stay of execution, 102. Bail for stay of execution, 103. Transcripts to bind real estate, 103. To receive and pay over amount of judgments, 104. When execution to issue, 105. Proceedings against constable for false return, &c., 108. When judgment to be revived, 105. Liability of constable on execution, 106. Transcripts to other counties, 108. Satisfaction of judgments, 108. To give transcripts on demand, 107. Proceedings to supply lost dockets, 111. Transfer of dockets, 108. On removal from office, 108. In case of temporary absence, 110. How to proceed on transcript, 109. Proceedings on attachment, 162. Attachment in execution, 168. Proceedings to attach stock, 168. . ° INDEX. 781 x JUSTICES OF THE PEACE — Continued. : To record fines for the use of the poor, 625. Cannot issue execution on transcript of another acting justice of same county, 110. Jurisdiction under U. 8. laws, in suits for debts, 479. : In suits for penalties and forfeitures, 479. Process to recover seamen’s wages, 480. Certificate of clerk of the district court, 480. ‘Proceedings to récover possession of demised premises, 485, 490. Forms, 498. : Duties in relation ‘to mill-dams, 584. Duties under the poor laws, 625. Jurisdiction in trespass and trover, 692. Parties may refer, 692. With consent of both parties, 694. Proceedings where title to lands will come in question, 693. Duties in actions for cutting timber trees, 685, THEIR CRIMINAL JURISDICTION. Duties in criminal cases, 456, 457. To issue warrant in case of affray, 180. Duties in apprentice cases, 141. Power to settle criminal cases, 457. To issue warrants to seize gambling apparatus, 400. Their authority as conservators of the peace, 454. Criminal jurisdiction, 456. May arrest on their own view, 457. May depute a private person to serve a criminal warrant, 458. When defendant to be committed for a further hearing, 459. May bind over persons found. tippling on Sundays, 676. May commit vagrants and disorderly persons, 697. Proceedings in a criminal case before a justice, 462. Power to take recognisances, 468. When to make their returns, 469. \Justices to back warrants, 469. Not to be liable to action for so doing, 470. Jurisdiction under U. 8S. laws, 479. Justices’ courts in Erie and Union counties, 470. MISCELLANEOUS PROVISIONS RELATING TO. How justices should give advice, 128. Not to act as agent for either party, 183 n. When a justice may be punished as a barrator, 193. Of the books required by a justice, 200. Manner of keeping docket, 98, 280. When entitled to notice of action, 475. When liable for taking illegal fees, 857, 371-2." ‘May indorse on execution, fees for return of the same, 106. To take acknowledgment and proof of deeds, 264, Liable for a false return to certiorari, 209, 585. Duties of justice on removal from office, 108-10. in case of temporary absence, 110. Proceedings against justice for neglect to pay over money, 478. ‘To act for coroner in certain cases, 470. Proceedings to enforce delivery of docket on removal from office, 110. Power to administer oaths, 474. Actions against justices regulated, 475. Notice of intended action to be given, 475. Justice may tender amends, 476. Limitation of actions against justices, 477. Form of notice of intended action for taking illegal fees, 477. Jurisdiction under U. S. laws,.479. Penalty for marrying a minor without the consent of parent, 558. To give marriage certificate on demand, 559. To pay over fines for the use of the poor, 625. Penalty for neglect, 626. KIDNAPPING. Punishment of, 481. LANDLORD AND TENANT. . See Lease. Docket entry in proceeding under act of 1830, 287, 503. in action for rent, 293. 2 When landlord guilty of forcible entry, 387. . 782 INDEX. LANDLORD AND TENANT — Continued. When landlord may be compelled to defaleate, 86, 277. Jurisdiction of justices in actions for rent, 86. Proceedings to recover possession of demised premises, 485. When proceedings may be had, 487. When notice to quit must be given, 487. ‘ What must be proved, 488, Proceedings where a third party claims title, 489. “ Proceedings to obtain possession for non-payment of rent, 490. * Defendant may appeal, 491. Bail on appeal, 491. : Proceedings on fraudulent removal of goods, 494. Proceedings where tenant removes without leaving goods to secure the rent, 495. Landlord may distrain for rent, 274. ‘ Warrant to distrain, 278. One year’s rent to be paid out of proceeds of execution, 496. Sheriff’s vendee to be deemed the landlord, 497. Summons to landlord to defalcate, 278. Dockei entry, 289. Tenant cannot dispute landlord’s title, 490. Form of notice to quit, 498. complaint to two justices, 498. venire, 498. . sheriff’s return, 499. oath of jurors, 499. inquisition, 499. warrant to deliver possession, 500. record of proceedings, 500. ‘ summons to a third party claiming title, 501. notice to quit for non-payment of rent, 502. complaint, 502. summons, 502. writ of possession, 502. docket entry, 503. complaint, where tenant has removed without leaving goods to secure the rent, 503. : form of precept in suclr cases, 508. writ of possession, 504. . docket entry, §04. Limitation of action for rent, 546. LAND MARKS. Penalty for removing land marks, 554, Warrant, 555. LARCENY. Definition of larceny, 506. Docket entry. in case of, 296. Punishment of larceny, 504. Decisions relative to, 506. When the finder of goods is guilty of larceny, 507. 7 Conviction of notorious thieves in Philadelphia, 473. LAW TERMS. “ Vocabulary of, 51. Explanation of, 68, Translation of, 71. LEASE. Definition of, 60, 484, 526. What passes by a lease, 484. Of the commencement of the lease, 484. When rent is payable, 484. Covenants in a lease, 484, Tenant must make repairs, 485. Common form of lease, 526, Lease by tenants in common, 526. Covenant to sell the inheritance, 527. ‘ Warrant to enter judgment in ejectment, 527. Waiver of acts exempting goods from distress, 278. Assignment of o lease, 528. ‘ INDEX. 783 LETTER OF ATTORNEY. Definition of letter of attorney, 528. Minors and married women cannot make attorneys, 528, General form of letter of attorney, 528. Letter of substitution, 529. To receive money on a bond, 529. To receive dividends on stock, 529. To convey lands, 529. To acknowledge a deed, 530. To satisfy a mortgage, 530. To lease lands, 530. Revocation of a power of attorney, 530. LEWDNESS. Punishment for publishing obscene libels, 548. open lewdness, 548. When indictable, 548. LIBEL. Definition of, 60, 544, Constitutional provision respecting libels, 543. ‘Decisions respecting libels, 544. Warrant for publishing libel, 544. Limitation of actions for libel, 546. Punishment for publishing an obscene libel, 548. Punishment for libel, 544. LIEN. See Mechanics’ Lien. Definition of, 60, 545. Different kinds of, 60, 545. Attorney has no lien on money in hands of sheriff, 180. But he has a lien on papers in his hands, or money collected, 180-1, Lien of common carriers, 211. Lien of innkeeper, 480-1. Lien of judgment, 449. Lien of execution, 222. Who are entitled to a lien, 545. : When property may be sold by persons having a lien, 545. LIMITATION. Limitation of actions, 546. Of personal actions, 546. When the statute begins to run, 548. What will remove the bar of the statute, 549. Of actions against constables, 227. Of actions against justices, 477. Limitation of actions on penal statutes, 549. of criminal prosecutions, 550. Sealed instruments not within the statute, 547. When sealed instruments presumed to be paid, 547. LIMITED PARTNERSHIP. See Partnership. LIQUORS. af Punishment for adulteration of, 125. s Or for sale of unwholesome, 125, Adulteration of, to be a defence to action for sale, 126. LOTTERIES. Penalties for selling lottery tickets, 551. Purchaser a competent witness, 551. Form of indictment, 551. , Judicial decisions relating to, 551. LUMBER. See Floating Lumber. MALICE. Definition of, 61. : MALICIOUS MISCHIEF. Docket entry in case of, 295. -A misdemeanor at common law, 552, Statutory, provisions for the punishment of, 552-4 Warrant for malicious mischief, 554-5, Se Punishment of malicious trespasses, 544, 784 7 INDEX. MALICIOUS PROSECUTION. Where the action will lie, 556. Malice and want of probable cause must be shown, 556. What is probable cause, 556. MANSLAUGHTER. See Homicide. MARKETS. Duties of clerk of the market, 557. When butter to be seizable, 557. Party grieved may appeal, 557. * — Provisions bought in a town not to be resold in market, 327. * Penalty for exposing to sale unwholesome provisions, 125, 557. Power to regulate markets, 557. MARRIAGE. See Coverture. Husband and Wife. How marriages to be celebrated, 558. Penalty for marrying servants without consent of master, 558. Penalty for marrying minor without consent of parent, 558. Penalty for marrying a person whilst intoxicated, 659. Transcript of record of marriage +o be given, 559. Fees, 559. Penalty for refusal, 559. Effect of marriage contract, 559-61. Marriage ceremony, 561. Certificate of marriage, 561. MAYHEM. Punishment of, 567. Punishment of attempt to commit, 567. Trials for, 567, Evidence, 567. MEASURES. See Weights and Measures. MECHANICS’ LIEN. Lien of mechanics and material-men, 532, 568. When claims may be apportioned, 570. Of the claim, 571. Proceedings on the claim, 573. Claims for extra compensation, 575. Forms of paOuRan TOR claims, 532, 578. MEETINGS. ” ‘ Penalty for - daturbing religious, social or political meetings, 652, MILL-DAMS. Owner of boat suffering pacer: to be compensated, 584. Decisions relative to, 584, MISDEMEANOR. Definition of, 61. - What amounts to a misdemeanor, 552. Refusal to give transcript a misdemeanor in office, 107. MISNOMER. ‘Definition of, 61. When pleadable i in abatement, 74. Party may amend, 74. MITTIMUS. See Commitment. MONEY. When bank notes treated as money, 191, 585. Effect of receipt of counterfeit note, 191, 585. What is money, 585. Rule as to foreign money, 585. MORTGAGE. Definition of, 62, 582. Priority of, 682. When and how to be recorded, 582. Letter of attorney to satisfy a mortgage, 580. Form of mortgage, 582. Assignment of mortgage, 5388. INDEX. 785 MURDER. See Homicide. NAME. See Misnomer. When identity of name evidence of personal identity, 586. Addition of junior no part of name, 586. Mistake of name will not avoid contract, 586. Names of parties may be amended, 586. How ngmes of persons may be changed, 586. Illegitimates to take their mother’s, 586. NATURALIZATION. ‘ Acts for the naturalization of aliens, 780. NEGLIGENCE. Action for negligence to survive, 587. May be brought by widow or personal representatives, 587. Evidence in actions for, 588. Responsibility of corporations for acts of their servants, 587. When justices have jurisdiction, 259, 452. Punishment for gross negligence, whereby any one is injured, 587. NEGROES AND FUGITIVE SLAVES. Manumission of a slave, 533-4. Slave brought into Pennsylvania becontes free, 482. Decisions relative to fugitive slaves, 482. NOLLE PROSEQUI. Power of district attorneys to enter, 279. NON-JOINDER. When pleadable in abatement, 74. NON-RESIDENTS. Service of process on, 89. NONSUIT. Definition of, 71. Compulsory nonsuit of a justice is conclusive, 447. Docket entry, in case of, 291. NOTARY PUBLIC. Official acts of notaries to be evidence, 588. Decisiors relative to notaries, 588. NOTICE. Of taking depositions, 337. When justice entitled to notice of action, 372, 475. To creditors of insolvent, 441. Of constable’s sale, 114. : : What is a sufficient notice of intended action against a justice, 476. How served, 476. Form of notice of intended action for taking illegal fees, 477. Notice to quit, at the expiration of term, 498. for non-payment of rent, 502. of dissolution of partnership, 513. where one partner leaves the firm, 513. of limited partnership, 514. Notice must be in writing, 589. What amounts to notice, 589. Notice to quit by purcliaser at sheriff’s sale, 645. NUISANCE. Definition of, 62, 590. Different kinds, 62, 590. Justices have no jurisdiction of actions for, 452. What amounts to a nuisance, 590-1. : Penalty for the obstruction of a private road by railroad company, 590. Punishment for maintaining a public nuisance, 590. OATH. See Affidavit. Definition of, 62, 592. Oath in“domestic attachment, 160. Form of administering oath to witnesses, 592-3, When affirmation may be taken, 592. Oath of executors or administrators, 353. 50 786 INDEX. OATH — Continued. Oath of insolvent debtor, 435. Power of justices to administer oaths, 453. Oath of jurors in landlord and tenant case, 499. ao Oath of jurors in proceedings to obtain possession by purchaser at sheriff’s sale, 646, OFFICER. When public officer liable for misfeasance, 585. Responsibility of public officer, 594. When acts of officers de facto valid, 594. : Punishment of various nisdemeanors by. public officers, 593-4. ORIGINAL ENTRIES. When evidence, 334, 595.. How book of original entries should be kept, 595-7. PARDON. Sentence endured, to have the effect of, 445. PARENT AND CHILD. Duties and rights of parents, 598. Duties of children, 599. When mothers to exercise parental rights, 598. PARTNERSHIP. When set-off allowed in actions by or-against partners, 271-2. Construction of guaranty to partners, 407. An infant may be a partner, and effect thereof, 426. Articles of copartnership, general form, 511. Not to trust one whom the copartner shall forbid, 512. Not to release any debt without consent, 512. Not to be bound, or indorse bills, 512. Neither party to assign his interest, 512. Parties to draw quarterly, 512. Principal clerk to be receiver, 512. That majority of partners shall bind the whole, 512. Agreement to continue partnership, 512. Form of dissolution of partnezship, 518. Notice of dissolution, 513. where one of the partners leaves the firm, 513. What constitutes a partnership, 601. Of the different kinds of partners, 602. Of dormant partners, 602. How far the acts of one partner bind the other, 602. Of the dissolution of a partnership, 604. Powers of the individual members, after dissolution, 605. Actions between partners, 600, 606. Actions by and against partners, 600, 606. Not to plead misnomer or non-joinder, in abatement, unless their names be regis- tered in the prothonotary’s office, 601. Limited partnership, 608. Certificate of limited partnership, 518. Notice of limited partnership, 514. PARTY WALL. » , + When action will lie for value of party wall, 612. Not a lien on the building, 612. By whom suit must be brought, 612. To pass by conveyance of the land, 618. PAWNS OR PLEDGES. Goods pledged may be taken in execution, 618. Of actions for goods pawned, 618. Decisions relative to pledges, 618-14. PEDLARS. See Hawkers and Pedlars. PENALTY. Definition of, 63. Docket entry in action for, 286, 289, 690. Summons for penalty, 289, 675. Penalty for taking illegal fees, 857. When incurred, 858, 872. i Penalty for gaming, 401. 3 INDEX. 787 PENALTIES — Continued. Justices to have jurisdiction of actions for penalties, 86. Actions for penalties, how instituted, 86. Limitation of actions on penal statutes, 549, 615. Evidence in actions for penalties, 614, How penalties recoverable, 614, 671. What the record must contain, 615. Penalties under the poor laws, how recoverable, 625-6. Penalty for destroying fences, 375. for obstructing private road by railroad company, 590. for passing small notes of other states, 190. for marrying & minor without the consent of parent, 558, for selling by false weights or measures, 704. for altering regulation of weights or measures, 704. for selling by short weight or measure, 704. PERJURY. Docket entry in case of, 295. Definition of perjury, 616. Definition of subornation of perjury, 616. When prosecution for perjury may be instituted, 616. Two witnesses required, 616. Information for perjury, 616. Warrant, 616. Warrant for subornation of perjury, 617. Punishment of perjury, 615. PHYSICIANS. Can sue for fees in Pennsylvania, 617. Medical attendance to be first paid by executors, 617. Coroner may employ surgeon to make post mortem examination at the expense of the county, 617. POISONS. Regulations for sale of, 618. Penalty for violation, 618. Punishment for administering stupefying mixtures, with felonious intent, 618, POOR. Overseers may bind poor children apprentice, 144. Duties of overseers of the poor, 618-26. Duties of justices under the poor laws, 619-26. How settlement may be gained, 620. Housekeepers to give notice to overseers, 621. Orders of removal, 621, Appeals allowed, 622. Costs, how recoverable, 622. What relatives liable for support of poor persons, 623. Proceedings where husband deserts his wife, 623. Who shall be deemed vagrants, 697. Penalties for the use of the poor, how recoverable, 625~6. Penalties to be paid to overseers by justices and sheriffs, 625-6. Penalty for neglect of duty by overseers, 626. Gifts and devises to the poor validated, 625. Actions against overseers regulated, 625. Forms of orders, 627. . Summons for delinquent overseers, 627. Conviction, 627. ; PRESUMPTION. When sealed instruments presumed to be paid, 664. PRINCIPAL AND AGENT. When the relation takes place, 628. Responsibilities of agents, 628. When acts of agent will bind the principal, 628. When ‘declarations of agent evidence, 629. PRIVILEGE. Of witnesses, 629. Of suitors, 629. Of freeholders, 6380. Of foreign ministers and consuls, 630. Of other persons, 681, 788 INDEX. PROCESS. See Summons. Definition of, 68, 631. To recover seamen’s wages, 480. Decisions relative to process, 631--2. Punishment for neglecting to execute, 681. for obstructing the execution of, 631. PROFANENESS. Blasphemy, how punished, 633. Profane cursing or swearing, 688. Mode of conviction, 633. Application of penalties, 634. Decisions relative to, 634. PROMISSORY NOTE. See Bills of Exchange, de. Definition of, 63, 635. Received as collateral security, may be sued, without resorting to the original debtor. 263. : Effect of receipt of note for a precedent debt, 268. Docket entry in action on, 288, 292. Evidence in action on note, 384, 346. When justices have jurisdiction of actions on notes given for land, 84, 452. Bond to indemnify against indorsement, 517. Form of due-bill, 538. Forms of promissory notes, 538-9, Judgment note, 539. with waiver of exemption, 539. Action on note, how brought, 5388. © Limitation of action on, 546. Liability of the maker, 635. a of the indorser, 636. When certain notes shall be deemed payable, 640. When want of notice may be pleaded, 640. Of the negotiability of a note, 637. Of the consideration of a note, 637. When consideration given for a forged note may be recovered back, 639. Of protest and notice, 639. Of actions on promissory notes, 641. Of notes payable in specific articles, 640. PROTHONOTARY. Authority and duties of prothonotaries, 642. When they can recover costs, 642. Partnerships to be registered in prothonotary’s office, 601. PURCHASERS AT SHERIFFS’ SALES. Proceedings to obtain possession, 643-8. Rights of purchaser as landlord, 497. Notice, 645. Petition, 645. Precept, 646. Return of sheriff, 646. Oath of jurors, 646. Inquisition, 646. Record, 647. Writ of possession, 647. RAPE. Punishment of rape, 648. Evidence, 648. Punishment of attempt to commit, 648, Decisions relative to, 648. Warrant for rape, 649. RECEIPT. Definition of, 64, 650. Not conclusive evidence, 650. Receipt on a deed, 268. Forms of receipts, 589. Decisions relative to receipts, 650. RECEIVING STOLEN GOODS. Punishment of, 605. . Punishment of receivers of property fraudulently disposed of, 324. Evidence on indictment for, 607. ? on : INDEX. 789 RECOGNISANCE. Definition of, 64, 186. In criminal cases, 81, 127, 131, 187-8. On appeal from a justice, 134, In apprentice cases, 141, 146-7. To levy attachment against stock, 176. When justices may take recognisances in criminal cases, 185. What a recognisance must contain, 186. Recognisance to appear at court, 187-8. to keep the peace, and be of good behavior, 187-8. to give evidence, 187-8. Form of, to be sent to court, 188. Docket entry of recognisance, 188. Recognisance on appeal by corporation, 244. for stay of execution, 284, 285. When to be returned, 469. - RECORD. Definition of, 64. What is a debt of record, 260. How proved in evidence, 331. Proceedings to supply lost record, 111. Record in landlord and tenant case, 500. What the record must contain, in a penal action, 615. Record in proceedings to obtain possession by purchaser at ‘sheriff’ 8 sale, 647. Record of summary conviction, 671. Punishment of falsifying a record, 651. How records of other states authenticated, 735, REFERERS. -See Arbitration. REGRATING. Definition and punishment of, 327. REPLEVIN. Definition of, 64, 71. Justices have no jurisdiction in, 693. Limitation of action of replevin, 546. RETURN. Of constable, to criminal warrant, 80. Rescue, 80. To attachment in execution, 176. To certiorari, 206. What is a sufficient return to a summons, 88, 209. To summons, 283-93. To execution, 348, 352. Must be in writing, 222, 348. Of freeholders, to warrant to assess damages for firing woods, 881. Sheriff’s return to venire in landlord and tenant case, 499. Sheriff’s return to venire in proceedings.to obtain possession by purchaser at sheriff’s sale, 646. When justices to make their returns, 469. REVIVAL. Of judgment, when necessary before a justice, 105. REVOCATION. Of a power of attorney, 530. RIOT. Definition of, 64, 651. Docket entry in case of, 295. Punishment of rioters, 651-2. Authority and duty of public officers in. case of riot, 652. Decisions relative to, 653. Warrant to arrest rioters, 654. How suppressed, 654, ROADS. Extortion by persons working on roads punished, 357. Roads, how laid out and opened, 534. Petition for a public road, 635. Order of court thereon, ‘B85. ’ , 790 INDEX. ROADS — Continued. Return of the jury, 585. Petition for damages, 536. Order of court, 536. Petition for a private road, 5386. Petition for gates on a private road, 536, Petition to vacate road, 536, Report of viewers, 536. Order of court, 536. Petition to annul proceedings, 537. Report of viewers, 537. Petition to vacate a state road, 537. Petition for a review, 537. Petition for a road on a county line, 537. Report thereon, 587. Petition for a county bridge, 537. Report thereon, 538. Petition for a bridge on a county line, 588. Law of the road, 655. ROBBERY. Definition of, 65. Punishment of robbers, 656. Decisions relative to robbery, 656. Examination of a person robbed, 657. Warrant for robbery, 657. Confession of a robber, 658. Commitment, 658. ROUT. See Riot. Definition of, 65, 651. Punishment of, 651. RULE. Definition of rule of court, 65. To answer interrogatories in attachment, 177. SALE. Definition of, 65. Possession must accompany sale of chattels, 516, 660. Bill of sale, 516. : Of the sale of real estate, 658. Of the change of property and delivery of chattels, 516, 659. Of warranty and fraud in the sale of chattels, 661. SATISFACTION. ° Definition of, 65. Penalty for neglect to enter satisfaction, 108. SCIRE FACIAS. Definition of, 71, 668. Appeal lies from judgment on scire facias, 663. Scire facias unnecessary on certificate for defendant, 271. Of scire facias to revive judgment, 449. When necessary to revive justice’s judgment, 663. Form of, 663. SEAL. What is a sufficient seal, 664. How proved, 664, When sealed instrument presumed to be paid, 664. SEARCH-WARRANT. When and how it may be issued, 664. Proceedings on a search-warrant, 664. Decisions relative to search-warrants, 665. Form of search-warrant, 666. SEDUCTION. Punishment for seduction, 666. Decisions relative to seduction, 666. SERVANT. When master bound by the contract of his servant, 55. Penalty for marrying without consent of master, 558. = INDEX. 791 SERVANT— Continued. Different kinds of servants, 565. Of the relation of master and servant, 565. When master responsible for the acts of his servant, 565. SET-OFF. Definition of, 65, When mutual demands may be set off, 271. Defendant may have execution on a certificate in his favor, 271. Between what parties allowed, 271. Subject-matter of set-off, 272. Set-off before a justice, 93, 278. ’ When landlord may be compelled to defalcate, 86, 277. Summons to landlord to defaleate, 278. SHIPS. Responsibilities of owners, 667. Who have a lien, 667 ‘ Landing foreign convicts indictable, 667. SLANDER. Definition of, 65. Justices have no jurisdiction in, 698. Limitation of action for, 546. SODOMY. Punishment of, 668. SPECIAL BATL. See Bait. STATUTES. Statutes in force before the revolution revived, 118. Where remedy is given by statute, nothing to be done agreeably to the common law, 119. Construction of statutes, 119. Repeal of statutes, 121-2. British statutes in force in Pennsylvania, 118. Decisions relative to English statutes, 118. j Constitutionality of statutes, 124, STAY OF EXECUTION. Time of stay, 102. & When bail may be entered for stay, 101-2. From what time to be computed, 103. Bail for stay of execution, 103. Effect of special agreement to waive stay of execution, 94. STOPPAGE IN TRANSITU. ' When it may be exercised, 66. SUBPENA.” Definition of, 66. How issued and served, 674. SUBSTITUTION. Letter of substitution, 529. SUMMARY CONVICTION. Definition of, 66, 668. Conviction for intoxication, 298. When statutory form must be pursued, 671. Conviction for illegal hunting, 422. of delinquent overseer of the poor, 627. Decisions relative to summary convictions, 671. Requisities of a summary conviction, 668. Of the information, 668. What it must contain, 668. Of the summons, 669. Of the appearance or non-appearance of the defendant, 669 Of the defence or confession, 670. Of the evidence, 670. Of the judgment, 670. Form of conviction, 671. Conviction of notorious thieves in Philadelphia, 473, ad 792 INDEX. SUMMONS. Against garnishee in domestic attachment, 161. What is a sufficient return to a summons, 88, 209, 673. Against constable, 232. Against corporation, 244. How sefved on corporation, 242. For a penalty, 289, 675. Administratrix against executors, 855. Surviving executor against administrators with the will annexed, 356. fow summons to be issued and served, 87, 672. Summons to landlord to defalcate, 278. to third party claiming title, in landlord and tenant case, 601. in landlord and tenant case, for non-payment of rent, 502. for delinquent overseer of the poor, 627. Of the summons in case of summary conviction, 669. Of issuing a summons, 672. Of filling up the summons, 672. Of the service of a summons, 73, 673. Summons in debt, 674. in trover and conversion, 674. in trespass for damages, 674. SUNDAY. Persons found tippling on Sunday may be bound for their good behavior, 675. Penalty for selling liquor, on Sunday, 676. Note given on Sunday is void, 677. When arrest may be made upon Sunday, 675. Worldly employment prohibited, 675. Decisions relative to Sunday, 676. Of contracts made on Sunday, 677. Breach of the Sabbath, 677. SUPERSEDEAS. . Definition of, 66. When certiorari is a supersedeas, 209. Form of supersedeas to constable, 232. SURETY OF THE PEACE. Definition of, 66, 678. Docket entry in case of, 296. Must be returned to court, 679. When demandable, 678-9. Warrant for threats, 679. Commitment, 679. ” SURRENDER. Bail in criminal cases may surrender, 185, 708. Effect of, in such cases, 185, 708. . SWINE. Duties of justices in relation to swine running at large, 680. Swine going at large to be yoked, 680. Proceedings where swine are found at large, 680. How advertised, 680. 7 x Proceedings where no owner appears, 680. Information, 681. Appointment of appraisers, 681. Return of appraisers, 681. Form of publication, 681. TAXES. On real estate cannot be apportioned, 255. TELEGRAPHS. Punishment for unlawfully revealing dispatches, 628. for sending forged dispatches, 628. Judicial decisions and authorities, 628. TENDER. When pleaded, money must be paid into court, 688. Definition of, 66, 688. _ Suspends interest, 683. Muzat be unqualified, 683. INDEX. , 793 THREATENING LETTERS. Punishment for sending, 684. TIMBER. Duties of justices in actions for cutting timber trees, 685. Proceedings where title to lands will come in queston, 685. Punishment for wilfully cutting timber on the lands of another, 684. TIME. How computed, 686. TOWNSHIPS. See Counties and Townships. TRADE MARKS. i Penalty for counterfeiting trade marks, 687. : for selling goods so marked, 687. Trade marks of venders of mineral waters protected, 687. Penalties how recoverable, 688. Jurisdiction of justices to grant process of search, 688. Action, when maintainable, for using plaintiff’s trade marks, 688. When restrained by injunction, 688-9. TRANSCRIPT. Definition of, 67. How filed, to bind real estate, 103. When prothonotary may issue execution, 103. Justice to give transcript on demand, 107. Refusal to be a misdemeanor in office, 107. What is a sufficient transcript, 689. Effect of, when filed in the common pleas, 689. Form of transcript, 690. TREASON. Punishment of high treason, 691. of misprision of treason, 691. What acts amount to treason, 692. To be proved by two witnesses, 692. TRESPASS. Definition of, 67. Docket entry in case of, 285. Execution on judgment in trespass, 286, 352. Jurisdiction of justices in, 692. Limitation of action of trespass, 546. Summons in trespass for damages, 674, Proceedings before justices in cases of trespass, 692. Parties may appeal, 693. When trespass is maintainable, 694, Decisions relative to trespass, 694. TRIAL. Of civil causes before a justice, 91. TROVER AND CONVERSION. What is a conversion, 55, 695, Definition of, 67. When it lies, 67. - Docket entry, in case of, 284. Jurisdiction of justices in, 692. Limitation of action of trover, 646. Summons in trover and conversion, 674. Of damages in trover, 693. Decisions relative to trover and conversion, 695. UNLAWFUL ASSEMBLY. ° See Riot. Definition of, 65, 67, 651. . Punishment of, 651. » UNWHOLESOME PROVISIONS. Punishment for sale or exposing for sale of, 126. USAGE. See Custom. VAGRANTS. Punishment of vagrants and disorderly persons, 697. Who shall be deemed vagrants, 697. Decisions relative to vagrants, 698. 794 INDEX. VERDICY Definition of, 67. Different kinds, 67. ; VOCABULARY OF LAW TERMS, 51. WAGER. No action can be maintained on a wager, 700. On horse-races void, 701. Wagers on elections, 700. WAGES. When to have preference in assignment, 155-6. WARRANT. Definition of backing warrants, 53. Warrant for misprision of felony, 80. for accessory before the fact, 80. for adultery, 127. for an affray, 130. in apprentice case, against the master, 146. against the apprentice, 146. for arson, 151. for assault and battery, 153. for selling bread otherwise than by weight, 201. for burglary, 204. for refusing to serve as constable, 231. against constable for neglect of duty, 232. for an escape, 329. for cutting a ferry rope, 377. against the keeper of a ferry, 377. against the master of a sail-bgat, 378, for firing woods, 380. ai for damages for so doing, 380. to freeholders to assess damages, 380. for forgery, 389. for bastardy, 392. “ for concealing the death of a bastard child, 392. for horse-stealing, 418. for unlawful hunting, 422. When criminal warrant should issue, 458. Requisites of criminal warrant, 458. Justices to back warrants, in certain cases, 469. Warrant to distrain for rent, 278. to deliver possession in landlord and tenant case, 500. for removing land-marks, 555. for publishing a libel, 544. for malicious mischief, 554. for perjury, 616. for subornation of perjury, 617. for rape, 649. for riot, 654, for robbery, 657. Search-warrant, 666, Warrant for threats, 679. for debt, 702. When warrant may issue in civil cases, 702. . Of the service of a civil warrant, 702. ; ‘Bail on civil warrant, 702. Proceedings on civil warrant, 702-8, ae WEAPONS. See Concealed Weapons. 2 «. WEIGHTS AND MEASURES. Penalty for selling by false beams, scales, weights or measures, 704. Penalty for altering regulations of weights or measures, 704. Proceedings on certiorari, 704. Penalties how appropriated, 704. Penalty for selling by short weight or measure, 704. \ WILL. Definition of, 68, 540. Who may make a will, 540. Different kinds.of wills, 540. INDEX. 795 WILL — Continued. Requisites of wills, 540. ‘ Forms of wills, 540-2. Married women may make a will, 562. WITNESS. When competent, 54. Definition of, 68. Assignee of claim not a competent witness, 342. When defendant in attachment in execution is a competent witness, 174. When attachment may issue against witness, 179, 344, Witness refusing to testify may be committed, 179. Attorneys not entitled to fees as witnesses, 181. When a party to a note may be a witness, 346. When informers incompetent, 427. Attendance, how compelled, 342. Privileges of witnesses, 343. Of their examination, 843. Evidence of experts, 343. How witnesses to be sworn, 343. Interest of witness, how shown, 346. Costs of witnesses, 248. Mother of bastard may be a witness against putative father, 390. Witness against gamblers not to be liable to prosecution, 400. Purchaser of a lottery ticket may be a witness, 551. Person entitled to reward may be a witness against horse-thief, 417. Deposition of absent witness, how taken, 95, 337. Two witnesses requisite to convict of perjury, 616. THE END. in Hy aes Le ea sag tis Hf wy Rin aaa Hany Liha aT