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Sec. 305

C. P. of

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C. P. of

certained that defendant causes the im- the universal practice however, for juspurity of the water which is the subject | tices to issue their precepts to any conof complaint.

stable of the county. It does not seem to The question is not whether that is a us that the act of April 4, 1873, was innuisance or not, but whether the defen- tended to so enlarge the jurisdiction of dant is the cause of it? The bill prays justices as to permit them to direct process for an injunction, which can only be to a constable of another county. The granted on clear proof: Bright. Juris. acts of April 24, 1857, (Purd. 802), and of

April 8, 1868, (P. L. 70), prescribe the Therefore as regards the question in- method of serving process upon insurance volved in this suit we do not perceive any

companies of other States, doing business interest in the stockholders, or in a large

in this State, but both these acts, in our number of the inhabitants of the county,

opinion, refer to actions commenced in adverse to the defendant.

courts of record, and not to those before

justices of the peace. See Clark v. Motion overruled.

Wooley, 7 S. & R. 352.

The first and second exceptions are susLuzurne County.

tained, and the proceedings are reversed. Fidelity and Casualty Co. v. Hesty. The act of April 4, 1873, in regard to foreigo insurauce

Luzurne County. com pavies, does not eularge the jurisdiction of justices of the peace so as to permit them to direct process to a con

Ziegler v. Everhart. stable of another county.

Watching timber at a salary of fifty dollars per annum The acts of April 24, 1857, and of April 8, 1868, refer to

is not the kind of “manual labor," nor the salary such actions commenced in courts of record only.

''wages of labor, as are contemplated by the act of AsCertiorari.

sembly requiring an affidavit and bail absolute for ap

peals. June 23, 1883. WOODWARD, J. The

Rule to strike off appeal. summons in this case was issued by an

May 15, 1882. WOODWARD, J.-It has alderman of the city of Wilkes-Barre, and

not been made clear to us that the claim directed to the constable of Reading, of the plaintiff in this case was for what Berks county, Pennsylvania. It was re

is known as the “wages of labor." The turned served by such constable, “'on the

first section of the act of April 9, 1872, within named defendant, the 7th of March, (Purd. 1464, pl. 1) describes the class of 1883, personally, by producing to Geo. P.

persons whose earnings are to be protectZeiber, Esq., state attorney or agent for ed. These are miners, mechanics, laborThe Fidelity and Casualty Company of

ers, clerks, etc. The act of April 20, 1876, New York, the original, and informing in its first section, provides the method of him of the contents thereof."

appeal from the judgments of justices of It is claimed that this method of obtain the peaces for the wages of “manual laing service of a summons upon a foreign bor." The transcript in this case shows insurance company, doing business in this that the claim was for work and labor State, is warranted by the thirteenth sec- done, and the depositions explain that the tion of the act of April 4, 1873, (Purd. 'service consisted in watching timber for 1798, pl. 22.) The act of March 20, 1810, six years at fifty dollars per year.

We do (Purd. 850, pl. 40), defines the powers of not think that such a claim comes within justices of the peace in civil causes, and the spirit and meaning of the act of directs that process shall issue to the con- Assembly requiring an affidavit and bail stable of the township, ward or district absolute. The rule to strike off the apwhere the defendant usually resides, or peal is discharged. can be found, or to the next constable most convenient to the defendant. It is i

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Q. S. of



in such practice. These acts are arrang

ed under appropriate headings, and the Commonwealth v. Gallagher.

Acts embraced in the codes of 1832, '33,

Lackawanna County. '34 and 53 have the reports of the ComIn case of assault and battery, where the defendant

missioners who prepared these codes andied after the Graud Jury had returned a true bill against him and before the trial was had, the county cannot be nexed as foot notes to the text. Followcompelled to pay the costs of prosecution. Motion for an order for county to pay

ing the Acts come the forms. Thus, the

heading is “Account" under which the costs.

Acts of Assembly relating to the filing of HANDLEY,P.J.-John Scanion present

accounts, their examination by the Regised his bill of indictment against James

ter, advertising, confirmation or reference Gallagher, charging him with assault and

to Auditors, recording and the filing of battery. The Grand Jury returned a true

transcript, in the Common Pleas, are bill but before the case was called for trial, the Great Judge called Gallagher be given in thirteen sections. These are fol

lowed by twenty-three forms of accounts, fore him for hearing on final appeal. He

confirmation of account, exceptions, adhas not thus far returned from the Court above, and the law permits us to presume tion for citation, citation, answer, and at

vertisements, transcripts of balances, petithat he never will again return to answer

tachment. any charge that may be preferred against him here. The prosecutor, therefore, de

From this it will be seen that the book sires that an order be made directing the is full and complete, nothing being omitCounty Commissioners to pay the costs

ted, while the various subjects are so disof prosecution. Can we make such an

tinctly arranged under their appropriate order? We think not. We have exam

headings that there is no trouble in findined all of our statutes on costs, and we

ing just what you want. The table of can gather nothing out of the mouth of Contents and the General Index to both these statutes that provides, when

volumes is an elaborate piece of work, and is called to his final rest, and is bid to

the stores of information contained in the sleep the eternal sleep of man, that the volumes are opened to the slightest search. county shall pay the costs. Gallagher Judge Rhone deserves the thanks of the cannot be made to pay them until a jury profession for his very able work. It fills of his country first say that he must. It a long felt want, and fills it so admirably will be exceedingly hard to find a jury to that the most chronic grumbler can not agree on that point now, and we are there- find any fault therewith. The book is a fore clear that the county may not, or his necessity to every practicing Attorney, to estate, be forced to pay them pro hac vice. every Registry, Clerk of the Orphans' Motion and order refused.

Court, or any one having anything to do

with the settlement of decedent's estates. Judge Rhone's New Work.

The typograhpical work is fully up to ACTS OF ASSEMBLY AND FORMS RELA- Rees Welsh & Co.'s high standard, and

TING TO ORPHANS' COURT PRACTICE, the book presents a handsome appear&c. By Hon. D. L. Rhone, Judge of ance. the Orphans' Court of Luzurne County. Price for ist Volume (see notice in preVOL. II. REES WELSH & Co., Pub-vious issue of the RECORD) $6.00; for 2d lishers, Philadelphia, Pa.

Volume, $6.00. The second volume of Judge Rhone's excellent work on Orphans' Court prac- When two young lovers happen to sit tice is devoted to the Acts of Assembly down at the same moment on two tacks, relating thereto and the proper forms used the immediate result is a social hop.



No. 23

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YORK LEGAL RECORD. win v. Commissioners, 1 S. & R. 508,

Judge Yeates declares that before the THURSDAY, AUGUST 9, 1883.

passage of the act of December 8, 1804,

empowering grand and petit jurors to QUARTER SESSIONS.

dispose of the costs in certain cases, "the 2. S. of

Lebanon County defendant, whether convicted or acquitted Commonwealth v. Trout.

of the offence charged, was obliged to

pay the costs, and left to his remedy A resident of the Commonwealth in confinement for costs alone, under sentence of a criminal court, is entitled against the prosecutor by action of malicito be set at liberty forthwith upon making application for the benefit of the insolvent law, and presentiug a bond

ous prosecution. If he was convicted, in accordauce therewith.

the payment of costs formed part of the Motion for leave to issue capias.

sentence; if acquitted, he was discharged February, 1883. McPHERSON, J. At

on payment of fees." There had been January sessions, 1883, John Trout was

earlier legislation, viz.: the acts of Septacquitted of the charge of selling liquor ember 33, 1791, and of March 20, 1797, without a license, but directed by the jury Read's Dig. 287, pl. 25, and 293, pl.51, but to pay one-half the costs. On January the act of 1804, Sm. Law, 204,

first 9th he was sentenced, and on January gave juries power over the subject. See 15th, having made application for the also Commonwealth v. Tilghman, 4 S. & benefit of the insolvent laws, and pre- R. 127; Strein v. Zeigler, 1 W. & S. 260; sented a bond as thereby required he was Commonwealth v. Johnson, 5 S. & R. 199; discharged from custody. The district McKinney's Am. Mag. 316, 319, et seq.attorney now asks for a capias, alleging The criminal procedure act of 1860 rethat the order for his discharge was ille-enacted the former statutes, and the act of gal, and that he must be considered as an 1804, with its supplements, issubstantially escaped prisoner. The argument is, that the law to-day. Where the defendant a sentence for costs requires either pay- was confined for costs, under either the ment, imprisonment for thirty days under

common law or this legislation, he could section 48 of the insolvent law of 1836, originally only be released upon payment. after which the prisoner is discharged The insolvent law of April 4, 1798, Read's without further proceedings of any kind, Dig. 176, did not touch the subject at all, or imprisonment for three months if a dis- and it was not until 1814, by section 17 of charge is sought as an insolvent. Con- the act of March 26, that persons “in confinement for three months is made neces- finement .. for the payment of the sary, it is said, by section 3 of the act of costs of prosecution” became entitled to 1836, which provides that no debtor shall relief under the acts relating to insolvent be entitled to relief under this act, unless debtor. A similar provision appears in he shall have resided within this Com- section 47 of the act of June 16, 1836, P. monwealth for six months immediately L. 729. At what time, then, is an insolvpreceding his application to the court, or

ent debtor entitled to his discharge from shall have been confined in jail for three confinement? The act of 1798 provided, months immediately preceding such ap- in section 1, that any debtor having been plication.” A careful examination of the an inhabitant of this State for two years various statutes and decisions on this sub

next before his application” might apply ject has led us to a different conclusion, the reason for which we will state as brief

to the court in term time; and in section ly as possible.

2, that he should be discharged from imAt common law, as is well known, no prisonment only after assigning all his

, provision was made for costs in any form property. This compelled him to remain of proceeding, civil or criminal. In Ir- in jail while notice of his application was being given or published, and until after 1833, P. L. 107, may approve the security

, final hearing. If, however, he was arrest- and make the order to discharge. This is ed in vacation, he might, by section 14, be the case of a debtor, and section 47 seems discharged, "forthwith" upon application to us quite as explicit with regard to any

“’ to a judge, and giving bond to the plain person confined for non-payment of tiff to appear at the next term and comply

the costs of prosecution.” The with the requirements of the statute.- language is that the Court of Common This act expired in 1801. The first section Pleas

Pleas. . shall have power to discharge of the act of March 26, 1814, made six such person from such confinement on his months' residence in the State sufficient. making application and conforming to the and the second section provided for the provisions hereinbefore directed in the debtor's discharge from confinement only case of insolvent debtors." This is very after final hearing. No provision was different from section 16 of the act of made for arrests in vacation, and neither 1814, which only gave to such persons the statute extended to non-residents. To benefit of this act,” under which, as we remedy this latter defect, the act of March have seen, even a debtor could not be re13, 1815, P. L. 156, was passed, allowing leased until after final hearing, and shows “all and every person or persons” to ap- plainly, as we think, that the intention of ply, but provided that those who had not the Legislature was to remedy the inebeen residents of the State for six months quality pointed out in Henry v. Com'lth, must first suffer confinement for three supra, decided in 1834, and put persons months. Liberty, pending the proceed- imprisoned only for costs on precisely the ings, was given in 1820 to certain debtors, same footing as debtors. But, however, but persons confined for costs could not be this may be, section 6 of the act of Janureleased until final hearing. Henry v. uary 24, 1849, P. L. 677, seems to remove Commonwealth, 3 Watts 384.

The re- all doubt by providing that''any applicant vised act of 1836, in section 3, provides for the benefit of the insolvent laws, who that the debtor must have "resided within is, or may hereafter be, in confinement the Commonwealth for six months imme- under sentence of any criminal court,

and diately proceeding his application to the who shall be entitled to be released from court, or shall have been confined in jail such confinement on compliance with the for three months immediately preceding provisions of existing acts of Assembly, such application, plainly intending to shall be released on giving bond as in civil consolidate the provisions of the acts of cases." 1814 and 1815. The language of section The Commonwealtlı's whole case rests, 1, also referring to "insolvent debtors re

therefore, on the construction of section siding or being within this Common

3, for which it contends; and this conwealth,” shows that the act was meant for struction, besides being at variance with residents and non-residents alike.

As to the apparent meaning of the words used, non-residents, confinement for three and with the history of former legislation months is necessary before an application

on the subject, further loses probability can be made ; but the case of residents it when section 48 is considered. Under seems clear, froni sections 4, 5 and 6, that

that section, which is taken from section the debtor is entitled to discharge “forth

18 of the act of 1814, as construed in with" upon giving bond to appear at the Commonwealth v. Long, 5 Binn. 489, im

v. , . next term and present his petition for the prisonment for thirty days entitles a perbenefit of the law. It is not even neces- son in confinement for costs to his dissary to apply to the court or a judge; the charge without proceedings of any kind. prothonotary, under the act of March 30, \ It is conceivable, with such a provision in

ceived from A.

the law, that the Legislature meant, in the court, and we have not been able to 1836, also to say that such prisoners might find any authority on the subject. apply for discharge under the formalities

We have gone further than the precise of the insolvent law if they would stay in question involved, because there seems to jail two months after they were entitled be a diversity of practice under the act, to be free, and particularly when the con- and we hope the county of Lebanon, sequences of discharge are the same in which has a considerable interest in the either case, viz., freedom from imprison- matter, will take measures to bring it in ment for the same cause, but not freedom

some way before the Supreme Court, and from the debt or charge?

have it definitely settled. We think the provisions of the law, so The capias is refused. far as fines and costs are concerned, may be summarized as follows:

SUPREME COURT. 1. A person sentenced to pay a fine not exceeding $15, or to pay such a fine and

Swartz v. Hauser. costs, or to pay costs alone, is entitled to Bailment--Bailees for Hire--Gratuitous release after a confinement of thirty days. Bailees—-Negligence, gross and slight

-Misdirection where it does not pre2. A person sentenced to pay a fine more

judice a party not a ground for reverthan $15 with or without costs, can only

sal. be released under the insolvent law, and

A. sent to B., a lard dealer and negotiator of loans, with cannot make application until he has been whom he had been in the habit of transacting business, a

certificate of stock with instructions to sell when the stock in confinement for three months.

should touch a certain price. No agreement was made as

to B's receiving any compensation for his services. B., 3. One who has been a resident of the

finding that the stock was rising, deposited it with c., a

stock-broker, with instructions similar to those he had reState for six months immediately preced

c., in turn, sent it D., another stock

broker, with like instructions. Subsequently C. failed, ing his application, and who has been

and D. sold out all the securities deposited by him, includ

ing the one in question, to cover c.'s indebtedness to D.sentenced to pay costs alone, may be dis

In an action afterwards brought by A. against B. to re

cover the value of the certificate, the Court left it to the charged forthwith upon making applica

jury to say whether B. was a bailee for hire, or a gratui-.

tous bailee, instructed them that in the former case he was tion under the law.

liable for slight negligence and in the latter for gross negligence only, and left it to them to say in either event

whether B. had been guilty of the sort of negligence for Trout comes within this latter class, and which he would be liable. Held, a verdict having been

found for A., that it was error to leave it to the jury to say was, therefore, properly discharged. whether B. was a bailee for hire or not, as the law would

imply that he had coulracted for compensation for his

services, but that this error having done B. 10 harm, conThe case of Ex parte Woods, i Pitts. stituted no ground for reversal. 17, in which a different conclusion is

Help further, that the question of B.'s negligence was

properly submitted to the jury. reached, does not bind us, and the reason

Error to the Common Pleas of Lancasing is not convincing. The case of Er

ter county. parte Feehan, Brightly, 462, is not in point, for the prisoner there had been con

Assumpsit, by Henry C. Hauser against victed and sentenced to pay a fine, and he

David G. Swartz, for the value of twenty was clearly within the proviso to section shares of the capital stock of the Central 47, which declares that “where such per

Transportation Company. son shall have been sentenced to the pay

Upon the trial, before PATTERSON, J., ment of a fine, . . he shall not be en- the following facts appeared : titled to make such application until he On August 4, 1872, the plaintiff, a resishall have been in actual confinement, in dent of York county, sent to the defendpursuance of such sentence, for a period ant, who resided in the city of Lancaster, not less than three months." These two a certificate for twenty shares of said. cases are briefly mentioned in Schuylkill stock standing in the name of plaintiff County v. Reifsnyder, 10 Wr. 450, but the with a power of attorney in blank signed question here considered was not before by the plaintiff, with instructions to sell

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