Volume 1 — Pennsylvania Justice of the Peace Law Reporter

<p>The fact that a Justice of the Peace before bringing suit addresses a letter to the defendant notifying him that a claim was left with him for collection does not oust his jurisdiction or incapacitate him for hearing the case.</p> <p>The defendant desiring to take advantage of an irregularity in the trial before a Justice of the Peace must do so by certiorari.</p>

<p>A notice having been given by a lessor April 16, 1901, that proceedings to obtain possession would be commenced June 16, 1901, he cannot during this time of his own motion create a new tenancy upon his own or different terms.</p> <p>There having been no contract for the payment of an increased rental there was nothing upon which the judgment of the Justice could be based, and the writ of possession was prematurely issued, having been issued only one day after judgment.</p>

<p>JurisdictioN — Corporations—Liability of Stockholders — Wages.</p> <p>No. 109, January Term, 1900, C. P. of Center County, John G. Love, P. J. Appeal No. 125 October Term, 1901, Superior Court.</p> <p>Argued in Super. Ct. Nov. 1, 1901.</p> <p>FACTS INVOLVED IN THE CASE.</p> <p>Prior to July 7, 1899, the Benton Coal Company had been conducting the business of miners and shippers of coal on some of the property of the Blubaker Coal Company by virtue of a lease with the latter corporation. The Benton Coal Co. became insolvent and failed to pay the wages due its employees. The mines were closed and the business of the insolvent company ceased, and the miners failing to receive their wages brought suits and obtained at least thirty individual judgments against the Benton Coal Co. before Anthony Anna, J. P. These judgments were obtained July 7, 1899. Executions were issued and the personal property of the Benton Coal Co. was levied upon and advertised for sale for the 20th of July, 1899. On the day of the sale, the Blubaker Coal Co., owner of the real estate, paid the laboring men their wages and took an assignment of the same. On the day of the sale, a number of persons were present for the purpose of bidding. The constable sold the property to the Blubaker Coal Co., for» $603.00. The total amount of claims assigned amounted to $2,000.00.</p> <p>G. Murray Andrews, one of the appellees, was not only an official of the Benton Coal C’o., but a large stockholder, owning 106 shares, par value $100.00 each. Subsequently, Nov. 27, 1899, 27 suits were brought under the Act of April 29, 1874, against the Benton Coal Co. and G. Murray Andrews jointly by 27 of these laboring men, each to the use of the Blubaker Coal Co. These suits were brought before J. M. Keichline, J. P., for claims ranging from $8.74 to $149.99. Judgments were entered in favor of the plaintiffs; whereupon the defendants took appeals to the C. P. of Center county. After the proper entry of said appeals, plaintiffs and defendants on March 21, 1901, effected a consolidation thereof by agreement. All the 27 cases were therefore tried.as one case resulting in a verdict in favor of the plaintiffs for $1,370.08. Subsequently, upon reserved points, the trial judge entered judgment in favor of the defendants non obstante veredicto on the ground of a want of jurisdiction of the justice.</p> <p>Error assigned — Entering judgment for the defendants non obstante veredicto upon five points reserved by the Court.</p>

<p>Trespass — -Transcript—J urisdictioN.</p> <p>No. 88, March Term, 1902; C. P. of Montgomery County.</p> <p>Certiorari to the proceedings before Justice of the Peace, David Harmer, Escp</p>

<p>Trial Outside of Township Where Justice Resided — Appeal—Certiorari.</p> <p>No. 173-½, December Term, 1899, C. P. of Bradford county, A. C. Fanning, P. J., Appeal No. 45, January Term, 1902, Superior Court.</p> <p>Argued in Super. Ct. Jan. 20, 1902.</p> <p>Facts involved in the case.</p> <p>Plaintiff in the above case brought a suit before a Justice of the Peace of Towanda Township, Bradford county, summous having been issued in said Township, but the trial having been held in the Borough of Towanda where the Justice as a prac-tising attorney had his office. An appeal was taken and the case tried upon its merits. The verdict was rendered, in favor of the plaintiff but subsequently the Court set the verdict aside and dismissed the case on the ground that the Justice of the Peace had no jurisdiction, the hearing having taken place in the Borough of Towanda.</p> <p>Error assigned — Setting aside the verdict of the jury in favor of the Plaintiffs and dismissing the case.</p>

<p>No. 108, March Term, 1901, C. P. of Montgomery county.</p>

<p>Constable — Summons by — Jurisdiction.</p> <p>Certiorari to James W. Shaffer, Justice of the Peace.</p>

Jurisdiction — Service of Summons. No. 293, March Term, 1902, C. P. of Lycoming County. Certiorari tg \V, H. Jones, Justice of the Peace of Pine Township. The “defendant is a lumber jobber operating in this county and the plaintiff was an employee. The docket of the Justice explains what was involved, etc. CIVIL SUIT.

<p>Evidence — Judgment—Summons—Boroughs.</p> <p>See Act of 9th of July, 1901, P. L. 614.</p> <p>Argued March 3rd, 1902.</p> <p>Certiorari on the part of the defendant to No. 169, Dec. Term, 1901, from the Court of Common Pleas of Clearfield County to J. C. Bloom, Esq., Justice of the Peace of the second ward of Curwensville Borough to remove the proceedings before the said Justice in the case of IT. L. Caldwell vs. M. Volpe. Roland D. Swoope (with him W. F. Patton) for appellant.</p> <p>This was a summons in assumpsit issued by a Justice of the Peace and it appeared from the record that judgment was entered against the defendant by default and that no witnesses were sworn and no evidence heard by the Justice, and that the Justice on the day of hearing proceeded to enter a judgment exemption note on his Docket against the defendant and issued execution thereon.</p>

<p>Borough Ordinance — Certificate of Secretary— Recording in Ordinance Book.</p> <p>No. 38, October Term, 1901; C. P. of Carbon county.</p>

Recognizance — Certiorari. No. 18, March Term, 1901. C. P. of Luzerne county, Halsey, J. Appeal No. 23, January Term, 1902, Superior Court. Argued in Super. Ct. Jan. 14, 1902. Affidavit of Defense. Luzerne Co. ss.

<p>Certiorari — Affidavit—Rule of Court Relating to Exceptions.</p> <p>No. 42, Jan. Term, 1902, C. P. of Berks comity.</p>

<p>Everything which the nature of the subject of a title reasonably suggests as necessary or appropriate, for the accomplishment of its express purpose being sufficiently indicated in its title, the Act of June i, 1887, P. L". 287, is obviously not unconstitutional in any of its sections nor as a whole.</p> <p>The fact that the County Commissioners did not publish the act as therein required does not render it inoperative, and in the absence of proof, the presumption is that the Commissioners performed that duty.</p> <p>No man is held by law by a higher degree of skill, than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. If it was the ordinary usage to have spark arresters on engines, and to burn leaves, etc., for more than 123 feet away from the location of the engine, the proof should show it. In the absence of such proof, carelessness or negligence is not made out against the defendant.</p>

<p>Summons — Attachment Under Act oe May 8, 1876, P. L. 139 — Board—Wages—Certiorari.</p> <p>No. 58, October Term, 1901; C. P. of Lancaster county.</p>

<p>Stray Laws, Act April 13, 1807 — Want of Notice— Change of Claim.</p> <p>Certiorari to Justice of the Peace.</p>

Alderman ' Acting as Attorney — Jurisdiction. Certiorari to George A. DoByne, Alderman. No. 58, March Term, 1902; C. P. of Blair County. STATEMENT OF FACTS INVOLVED. The Alderman before whom the case was tried, was a member °of the Blair County Bar. Prior to the bringing of suit, the plaintiff sent a copy of his account to the defendant, with an appended statement, advising the defendant that he could pay the same either to the plaintiff, or his attorney.

<p>A Justice has jurisdiction of actions of trespass brought for the recovery of damages for injury done or committed on real and personal estate when the damages are such as arise where the injury is immediate and would be recoverable in the common law action of trespass vi et armis and not such as are consequential and would be recoverable, if at all, only in an action of trespass on the case.</p> <p>A Justice has jurisdiction where his record discloses that “Plaintiff brings suit against defendant for driving his horse and carriage into the buggy of plaintiff, . . .’’as the defendant is charged with doing an immediate damage to personal property and the common law action of trespass vi ei armis would be the appropriate form of action through which to obtain a remedy.</p> <p>Where the plaintiff has an election of actions and chooses to proceed for the recovery of consequential damages rather than those arising immediately from the injury, his remedy is in the Common Pleas and not before a Justice.</p>

<p>The offer of a probated claim or book account with affidavit of origh nal entry is not sufficient legal evidence to support plaintiff’s claim where judgment by default is entered.</p>

<p>Where the copy of the summons served on the defendant in a suit before a Justice of the Peace sets forth that the suit was brought .on three promissory notes giving their date, this is mere surplusage, and a mistake in the date of the notes as given is not ground for setting aside the judgment on certiorari.</p> <p>Suit may be brought on a note not yet due. This fact is a matter of defense, but if it is not offered as such and judgment is permitted to be entered by default, such judgment is not void, and such defense cannot be subsequently raised on certiorari.</p> <p>It is not necessary that the record of a Justice of the Peace should specify the hour in which he entered judgment by default if in fact the case was heard at the time to which it was continued.</p>

<p>Justices — Jurisdiction—Trespass—SufficieNcy of Record — Certiorari.</p> <p>No. 2, August Term, 1902; C. P. of Lancaster County.</p>

<p>The Constable’s return in this case was “Served the within summons on Edward Holt one of the defendants by producing the original to him nersonally and informing him of the contents thereof.” Held, that this was a defective summons, as under the Act of July 6, 1901, P. L. 614, service must be by handing a true and attested copy to the defendant or some one in his stead as set out in the act.</p>

<p>Section 28 of the Act of Julv 12th, 1842, P. L. 399, requires that every attachment shall be made returnable not less than two nor more than four days from the date thereof, and a writ of attachment under said Act made returnable in seven days deprives the Justice of jurisdiction.</p> <p>Section 30 of the Act of 1842 provides that where there has not been personal service, 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, viz.: not less than five nor more than eight days and the Justice ousts his jurisdiction when he issues such summonses returnable in two days.</p>

<p>A Justice of the Peace acquires no jurisdiction in a civil suit over the person of the defendant, where the summons is made returnable more than eight days after date of issuance, and where it has not been served in accordance with the provisions of Act of July 9, 1901.</p>

<p>Aldermen of cities of the third class have no jurisdiction outside of the Ward for which they are commissioned, except by the request of the Mayor, or acting Mayor, where either are, for any reason, unable to act. The record of the Alderman should show a request of the Mayor, or that he was holding the Mayor’s police court.</p> <p>Aldermen are required severally to have and exercise within their respective wards, jurisdiction in the same manner as Justices of the Peace of this Commonwealth, and where the docket fails to give either the ward, city, county or state as the location of the Alderman’s office, and does not show when the hearing took place, or the amount of Pail the defendant was required to give, or that he was committed to jail in default of his failure to do so, the indictment will be quashed.</p> <p>In order to sustain an indictment it is required that the transcript of a committing Magistrate, in criminal cases, should give the location of his office, and enter upon his docket the name, residence and occupation of all defendants, bail and witnesses.</p> <p>Acts of February 22, 1802, 3 Sm. 490, June 21, 1839, March 19, i860, Sec. 16, and May 16, 1901, Sec. 8, P. L. 240.</p>

<p>INSUFFICIENCY OF TRANSCRIPT-CERTIORARI.</p> <p>No. 54, August Term, 1902; C. P. of Chester Co.</p> <p>Certiorari to Justice of the Peace.</p>

<p>A Justice of the Peace has jurisdiction in a suit against the owner of real estate to recover the unpaid interest of a widow’s dower charged thereon.</p>

<p>Magistrates' Judgments — Opening of — Appeal nunc pro tunc.</p> <p>Rule to open judgment and for appeal nunc pro tunc.</p> <p>No. 150, August Term, 1902, C. P. of Lancaster Co.</p>

<p>Under the Act of 9 July, 1901, P. L. 614, Sections 1 & 16, a writ is to be served “(a) by handing a true and attested copy thereof to him personally,” &c., and where service is not had according to said Act defendant is not obliged to appear, the Justice is without jurisdiction, and the proceedings and judgment thereon erroneous.</p> <p>A judgment before a Justice of the Peace being void for want of jurisdiction to enter it, it matters not how or in what mode or at what time the objection on that ground is brought to the attention of a supervising Court; being void it has no efficiency at any time. The defendant can afford to disregard it until an effort is made to enforce it.</p>

<p>Certiorari — AgeNcy—Improper Service Under Act.of July 9, 1901, Secs, i AND 16 — OmissioN of Date IN JUDGMENT.</p> <p>No. 37, December Term, 1902, C. P. of Montgomery County.</p>

<p>Certiorari — Proceedings for Possession for Non-payment of Rent — Lease—Rental—Jurisdiction.</p> <p>No. 163, October Term, 1902, C. P. of Montgomery County.</p> <p>Certiorari to J. M. Neiman, J. P.</p>

<p>The Justice cannot usurp the jurisdiction of fence viewers. Where the parties do not agree the viewers must determine whether a new fence is necessary or whether the old fence should be repaired. The object of the Act of 1842, and its supplement, of March 8, 1847, P. L. 200, is to provide a summary remedy to keep up a partition fence.</p>

<p>Where in a suit before a Justice of the Peace against a corporation an appeal is taken and a recognizance is entered, — “I am held as bail absolute in this case in the sum of $228, conditioned for the payment of the debt, interest and costs that may be legally recovered against the said company/’ being different from the wording of the Act of March 15, 1847, P. L. 361, “the bail requisite in that case shall be taken absolute for the payment of debt, interest and costs on the affirmance of the judgment,” but the said appeal is not entered in the Court of Common Pleas, such refusal or failure is an implied affirmance by the defendant of the judgment and the surety upon the recognizance.</p> <p>The judgment obtained before a Justice by the plaintiff against a corporation is voidable and can be rendered void, first by appeal; second, by the entry of the appeal in the Court of Common Pleas within the time limited by law, and third, by the reversal of that judgment in the said Court in the manner pointed out by law.</p>

<p>A tenant having received the three months’ notice to quit required by an existing lease and on application to the landlord procures permission to remain, the notice is in effect withdrawn and the covenants of the existing lease furnish a consideration for the contract of renewal. Supplee v. Timothy, 124 Pa., 375 cited.</p> <p>It is error to confine the attention of the jury to one view of a case where there is more than one which they should consider. If, however, no particular instructions be asked, the Court is responsible for the general effect only of the charge, and in considering the charge the whole of it must be taken together. Pierson v. Duncan, 162 Pa., 187, cited.</p>

<p>ElectioN Officers — Ballot—Protest Against Issuance of Commission.</p>

<p>No provision having been made in the law requiring a high constable to take his oath and give bond in court, it cannot be held that without this he should be entrusted with service of writs, executions, and warrants. The power and authority mentioned in the Act of 1851 is construed to apply only to the discharge of his duties in his particular borough as an executive officer of the same.</p> <p>Where the Justice is without jurisdiction, a certiorari may issue even after the expiration of twenty days.</p>

<p>Summons — Cause of ActioN — Trespass vi et Armis — • Case — J urisdiction.</p> <p>Certiorari.</p> <p>No. 30, August Term, 1901, C. P. of York Co.</p>

<p>The records of proceedings in the office of a Justice of the Peace or of an Alderman are of a judicial and public nature. The official records of the office cannot be considered as the personal property or perquisites of the occupant. When the Alderman goes out of office, his records, on account of their public and judicial character should be delivered to his successor.</p> <p>That the records of criminal cases kept by an Alderman whose term of office has expired are often needed subsequently, either as evidence in other cases, or as the basis of other or further proceedings is evident so that on the ground of convenience and necessity, the records should be in the custody of the Alderman then in office.</p> <p>A retiring Alderman, may die or he may move from the State and take his papers with him beyond the reach of process, or the records may be scattered or lost. These inconveniences may be avoided by the transfer of all official records and papers to the successor in office.</p> <p>Acts of March 20, 1810, Sections 4 and S, Sm. 164; May 1, 1861, P. L. 162; June 11, 1885, P. L. no and June 21, 1839, Sec. 10, harmonize.</p>

<p>The method to obtain jurisdiction in cases of summary conviction ..s prescribed by the Act of June 4, 1897, P. L. 121, is either by arrest or service of summons. Where the record does not show that either of these courses was pursued, the proceedings will be reversed.</p>

<p>An appeal from a conviction for profane swearing under the Act of April 22, 1794, lies to the Court of Quarter Sessions who try the appeal without a jury, and not to the Court of Common Pleas, such case being a summary conviction and not a judgment for penalty.</p> <p>The Act of April 17, 1876, is unconstitutional so far as it relates to appeals to Common Pleas from judgments in suits for penalties.</p> <p>Appeals of this character being allowed “upon cause shown” should not ordinarily be permitted if the party has had an opportunity to fully and fairly present his case before the Magistrate, unless a doubtful legal question is involved, or'there is something to indicate oppression, corruption or disregard of law on the part of the Magistrate or after discovered evidence that would justify a new trial.</p> <p>If the case is a proper one for the allowance of an appeal but the appeal was taken to the wrong Court, the party might be allowed to perfect his appeal and transfer the case into the proper Court.</p>

<p>A Justice of the Peace has no jurisdiction in an action for consequential damages, -which before the passage of the procedure Act of May 25, 1887, would have been an action of trespass on the case.</p>

<p>A suit for the recovery of penalty under a borough ordinance, should be in the corporate name of the borough, and not in the name of the Burgess to the use of the borough.</p> <p>Where a suit for the recovery of a penalty under a borough ordinance is brought in the name of the Burgess to the use of the borough, and before a Justice of the Peace who is also the Burgess, the fact that the Burgess is the nominal plaintiff in the suit would not prevent him from hearing the case in his capacity of Justice of the Peace.</p> <p>The Act of June 4, 1897, providing a method of procedure for the collection of fines imposed by borough ordinances, is not in conflict with Article III, Sec. 3, of the Constitution of Pennsylvania which provides that one subject, clearly expressed in the title, shall be enacted in each bill.</p> <p>Under the Act of June 4, 1897, all penalties recovered under borough ordinances should be paid to the borough treasurer.</p> <p>An ordinance which provides that in default of the payment of a fine imposed by the ordinance, the offender may be imprisoned in the borough lock-up for a period longer than five days, is in violation of the Act of June 4, 1897.</p>

Supervisors — Swearing Witnesses. C. P. Reaver Co., No. 62, September T., 1901. Certiorari to J. M. Reed, J. P. Suit by F. S. Laughlin against the Supervisors of Greene Township for repairing roads. Justice's transcript showed judgment for plaintiff “after hearing the allegations of the parties.” On certiorari excepted to because suit was not brought against the Township instead of the Supervisors; also that the record did not show the witnesses to have been sworn.

<p>Transcript — Diminution of Record — Corrected Return.</p> <p>Certiorari to a Justice of the Peace.</p>

<p>Service of .Summons.</p> <p>No. 340, December T., 1901, C. P. Beaver County.</p> <p>Certiorari to J. A. Irons, J. P. of the Borough of Monaca.</p> <p>The facts appear by the opinion of the Court.</p>

<p>The county is liable for the lawful costs of the Justice of the Peace in all criminal cases.</p> <p>A Constable is not required to make return under oath to a criminal warrant, or a subpoena in a criminal case, and if he does do so, the county is not liable to the Justice of the Peace who administers the oath in such cases.</p> <p>Duties of Justices of the Peace and Constables on a criminal warrant.</p>

<p>The Court has no power on appeal to summarily quash a writ issued by a Magistrate on the ground that the subject matter of the suit is the same as that in another action pending, and especially is this so when the two suits are brought against different parties. If both parties were sued for the same debt this is a matter of defense.</p>

<p>Magistrates — Summons—Return of Service — Contradiction of by Parol — Certiorari.</p> <p>No. 41, June Term, 1901, C. P. of Lancaster Co.</p>

<p>No. 42, June Term, 1901, C. P. of Lancaster Co.</p> <p>Certiorari.</p>

<p>The service of a Magistrate’s summons “by producing the original to, and informing him of the contents thereof,” while good under the prior Act, is not sufficient under the Act of July 9, 1901, which requires service by copy.</p>

<p>The return of service saying — “Served the within writ of summons, &c., upon G. M. Roads, Esq., Agent for Julia Flannery and Hugh Smith, the within named defendants, personally, by producing the original and informing him of the contents thereof and by leaving a true copy of the same,” is not a compliance with clause “E” of Section 1, of the Act of July, 1901, P. L. 614, which requires a “true and attested copy” to be handed “at his place of business,” it not appearing that inquiry was made as to residence, nor that an attempt to serve there had failed.</p> <p>Field doubtful, whether clause “E” above mentioned applies to cases of non-residents.</p>

<p>The affidavit under the Act of July 14, 1897, that the appeal is not for delay, &c., if filed with the appeal, on the first Monday of the term following the date of appeal is in sufficient time.</p> <p>No affidavit of defense having been filed as required under the rules of Court requiring “that in appeals from the judgment of a Justice of the Peace, the appellant shall, within ten days after the filing thereof, file a specific affidavit of claim or defense” such neglect is fatal to the Appellant’s cause.</p>

<p>Where a defendant has duly appealed to Court from the judgment of a Magistrate, a general appearance being entered by his counsel, and judgment has been entered for the plaintiff by the Court after service of a statement on the defendant under the rules of Court the Court will not open or strike off said judgment because the original service of the summons was not in accordance with the requirements of the Act of July 9, 1901.</p>

Magistrate's Jurisdiction — Waiver of Irregularity of Service — Act of. July 9, 1901, P. L. 614. Appeal of Arthur Burt, defendant, from the judgment of the Court of Common Pleas of Lancaster county on a verdict for the plaintiff. This was a suit for wages begun before a Magistrate and appealed to Court by defendant. The trial resulted in a verdict for the plaintiff for $125.

Jurisdiction — Justices of ti-ie Peace Acting as Agent ' or Attorney. No. 79, February Term, 1902, C. P. of Bradford Co. the plaintiff recovered a judgment against the defendant for 75c, before P. E. Woodruff, a Justice of the Peace. The defendant did not appear at the trial before the Justice.

Appeal Nunc Pro Tunc — Opening Judgment — Re-hearing. No. 131, March Term, 1902, C. P. of Armstrong Co. Certiorari to Wm. Brown, J. P. STATEMENT OF FACTS AGREED UPON BY COUNSEL. In the above case we agree to the following facts; which shall be considered by the Court the same as though they were conclusively proven by evidence regularly taken: 1st. That Mrs. Hilton was present in Court Dec. 3rd, 1901, when the case was continued to Dec. 9th, 1901. 2nd.

<p>The record of the Justice must show that witnesses were sworn or affirmed. ■ . 1 ■ _</p>

Lease — Lack of Jurisdiction by Reason of Change of Residence of Defendant — Short Summons — Service of Summons. Certiorari. No. 4, December Term, 1900, C. P. Monroe Co. STATEMENT OF FACTS. David Davidson, the defendant above named, leased from ,the plaintiff a summer boarding house situate in Smithfield Township, Monroe county, Pennsylvania, the term being from June 1st to Oct. 1st, 1900.

Lease — SeRvice of Summons — JURISDICTION by Reason of Non-Residence. Rule to quash writ of summons and set. aside service. No. 31, December Term, 1900, C. P. Monroe Co. STATEMENT OF FACTS: In this case the suit had been brought by the plaintiffs against the defendant upon a lease which contained a waiver of the right of appeal, which was set out in full upon the record of the Justice.

<p>Where the Constable makes a personal service, but fails to hand the defendant a true and attested copy of the writ, a judgment entered without the appearance of the defendant will be reversed.</p>

<p>A summons issued by a Justice of the Peace must state the district, and place in the district, in which the defendant is to appear; unless it does so the Justice has no jurisdiction over the defendant.</p> <p>The record must show that some evidence was heard by the Justice, and a sufficient entry upon the record to show proof of claim.</p> <p>The Constable must make return of the service of his summons, under oath.; and the return when under oath must show a service in the manner provided by law.</p> <p>Since the Act of July glh, 1901,. P. L. 614, a summons must be served by copy, and a service by making contents known is illegal.</p> <p>Judgment should only include the claim and interest; the costs should not be added to the debt and judgment entered for the gross sum.</p>

Attachment Under the Act of May 8, 1874, P. L. 123— Jurisdiction — Service of Summons. Rule to quash writ of attachment and set aside proceedings.

<p>Service of Summons — Suit Against Husband and Wife— Defective Judgment.</p> <p>No. 258, December Term, 1902, C. P. of Bradford Co.</p> <p>Certiorari.</p>

<p>“Served the within writ of summons Nov. 14, 1902, upon the within named defendant, C. W. Roles, by personally producing the original writ to and informing him of the contents thereof” is not a legal service of a summons, and the Justice would have no jurisdiction of the parties.</p> <p>Where the docket of the Justice states that “plaintiff files claim for $25 damage, for breach of warranty in selling an unsound horse for one warranted sound,” it not appearing that the claim, even if correctly stated, was not barred by the statute of limitations, the judgment will be reversed.</p>

<p>Recognizance — Certified Ci-iecic Deposited — Perfec- . tion of Appeal.</p> <p>No. 63, September Term, 1902, C. P. of Northampton Co.</p>

<p>Judgment — Transcript—Counsel—Validity of Judgment.</p> <p>No. 121, June Term, 1902, C. P. Delaware County.</p> <p>Certiorari to Alfred C. Rhoads, Alderman of the City of Chester.</p> <p>The facts appear by the opinion of the Court.</p>

<p>A claim filed by an owner of land, having forest or timber trees, of not less than fifty trees to the acre, for 80 per cent, of the taxes paid by him under the Act of May 25, 1897, P. L. 88, not having been pursued to judgment prior to the repeal by virtue of the Act of April 11, 1901, P. L. 77, cannot be enforced.</p> <p>A proceeding which is imperfect when the Act of Assembly, under which it was taken, expires, cannot be perfected, and what is done after-wards is void, and no proceeding can be pursued under the repealed statute that was begun before the repeal.</p>

<p>The Act of March 2, 1868, P. L. 257, entitled “An Act relating to appeals and transcripts from the judgments of Justices of the Peace in and for Center, Blair, Lehigh, - Clinton, Schuylkill . . . Counties” which provides “that from and after the passage of that Act the Justices of the Peace in and for said counties named in the Act shall be entitled to receive from the appellant and from the plaintiff desiring a transcript for entering in the Common Pleas, or other transcripts in any case tried before him before giving a transcript or other transcripts, all costs that may have accrued in said action,” is not repealed by the Act of July 15, 1897, P. L. 300, or the amendment thereto by Act of April 19, 1901, P. L. 84.</p> <p>The general statute without negative words, does not repeal a previous statute which is particular, even though the provisions of one be different from the other. The general statute is read as silently excluding from its operations the cases which have been provided for by the special one.</p>

<p>Constables — Deputy Constables — Approval—Liability of County for Fees.</p> <p>No. 237, Jan. Term, 1903, C. P. of Luzerne County.</p>

<p>In a lease from month to month, the tenant holding over, holds under the terms of his lease as tenant from month to month and not as tenant at will, or from year to year, and as the lease would expire or the term end at the end of each month, it would be impossible to give such a tenant notice to quit at the end of his term, three months prior thereto, and, of course, such tenant cannot be proceeded against under the provisions of the Act of December 14, 1863, P. L. (1864) 1125.</p> <p>The notice served upon a tenant requiring him to quit and surrender possession must slate that he is required to quit at the end of his term and in a proceeding to obtain possession that fact must appear of record.</p> <p>The Court will set aside proceedings before a Justice where the Justice is a relative to either party.</p>

<p>The burial of a deceased poor person is generally regarded as a service in emergency and the Poor District is liable therefor; but the person furnishing the relief must be reasonably diligent in obtaining either an order of relief or approval, with notice to the Overseers.</p> <p>On appeal by a defendant Poor District from the judgment of a Justice of the Peace, the case should go to the Jury, where the uncontradicted testimony shows that the order of approval was obtained nearly three years after the services were rendered; that the order of approval was not appealed from and where the plaintiff, an undertaker, testifies that his apparent laches were caused by his effort to obtain payment from the parent of the poor person if possible, in order to save the expenses to the Poor District.</p>

Poor Law — Claim Against Poor District Barred by Laches. Motion to take off non-suit. No. 136, Aug. T., 1902, C. P. Centre County.

<p>In a proceeding before a Justice of the Peace, under the Act of December 14, 1863, and its supplements, by a landlord against a tenant, to recover possession of the leased premises at the expiration of the term, the complaint cannot be made before one Justice and the subsequent proceedings had before another. In such a case the second Justice has no jurisdiction. The whole proceeding must be had before the same Justice.</p> <p>Under the Act of December 14th, 1863, and its supplement, (Act of February 20th, 1867,) in a proceeding by a landlord against a tenant, to obtain possession at the end of a term, the complaint should aver and upon due proof, the Justice should find and set out on his record the following statement of facts: (a) That the lessor was quietly and peaceably possessed of the premises, (b) That he demised the same to the tenant, or someone under whom the tenant claimed, (c) That the term for which the premises were demised is fully ended; and (d) That the tenant had three months’ notice to quit.</p>

<p>Service of Summons — Record of Justice.</p> <p>No. 24, October Term, 1901, C. P. Luzerne County.</p> <p>Certiorari.</p>

<p>A Constable is not bound to execute a writ unless the defendant resides in his district, or he is the Constable next nearest to the defendant, and in such case where he refused to serve the writ and sent it back to the Magistrate he cannot be proceeded against for such refusal or for neglecting to make a return.</p> <p>In such case the Act of March 21, 1772, requiring demand to be made before bringing an action against a Constable for anything done in obedience to any warrant is not applicable as the Constable refused to do anything in obedience to the warrant.</p> <p>The discretion of a Magistrate in selecting the next and most convenient Constable is not an arbitrary, but a legal discretion, and he cannot at his whim abuse this discretion and proceed to arbitrarily say that a certain Constable is the next and most convenient, when in fact he knows or ought to know that he is not.</p> <p>Where a Magistrate’s record states that a plaintiff was present and was sworn it is presumed that the judgment is based on this alleged evidence and not on other possible proofs, and when it is shown on certiorari that the plaintiff in fact did not appear the judgment will be set aside.</p> <p>Where the record as made up by a Magistrate does not conform to the facts as admitted by the plaintiff, on certiorari the judgment should be set aside.</p> <p>The Court may on certiorari take note of a fatal error not embodied in the exceptions.</p>

<p>The appellant’s remedy upon an alleged irregularity upon the face of the record of a Justice of the Peace is by Qertiorari. He waives the irregularity by taking an appeal.</p> <p>The defendant is presumed to have waived the irregularity of service where the appeal was entered, and defendant entered an appearance and a plea, and proceeded to trial upon the merits.</p>

<p>Jurisdiction — LóNG SummoNS — Short Summons — PlaiNtife Not Sworn.</p> <p>No. 2, June Term, 1902, C. P. of Pike County.</p> <p>Certiorari to Edwin Howell, J. P.</p>

<p>County Treasurer — County Auditors — Reports—Summons to Appear — Lien on Real Estate.</p> <p>No. 23, April Term, 1903, C. P. of Wyoming County.</p> <p>Rule to show cause why the report of the County Auditors should not be set aside.</p> <p>— Irish v. Com., 3 Binney, 91; Brown v. Com., 2 Rawle, 40; Wilson v. Clarion County, 2 Pa., 17; Com. of Lycoming County v. Lycom-ing County, 46 Pa., 496; Blackmore v. Allegheny County, 51. Pa., 160; County v. Rhodes, 1 Kulp, 437; Center County v. Kline, 9 Dist. Rep., 738; County Auditors, 1 Woodw., Dec. 270; Chester County v. Barber, 97, Pa., 45.5; Fulton v. Lancaster County, 162 Pa. 294.</p> <p>— Richter v. Penn Twp., 9 Pa., 79; Merkel v. Berks County, 81 Pa., 505.</p>

<p>' Service of SummoNS — Jurisdiction—CoNtinuance—Confession of Judgment- — Joint Action Against Husband and Wife — Certiorari.</p> <p>No. 171, February Term, 1901, C. P. of Luzerne County.</p>

<p>Local AND GeNeral Acts of Assembly — Keeper of County Jail — Fees—Salaries.</p> <p>No. 1, April Term, 1902, C. P., Lancaster County.</p>

<p>Policemen — Act of July 14, 1897, P. L. 266 — Witness Fees.</p> <p>Case stated. No. 210, November Term, 1902, C. P. of Schuylkill County.</p>

<p>A Railroad Company permitted a person, not the Consignee of the goods, to remove them from the station, and afterwards, upon production to them of the Bill of Lading by the party entitled to receive them, settled for the same took an assignment of the claim, and sued the party wrongfully receiving the goods. A verdict in favor of the Railway Company was sustained.</p> <p>Where an injury or damage occurs to an innocent party, and the question arises, wno oi two innocent parties must suffer the loss the party whose negligence or want of care occasioned the injury and damages should bear the loss.</p>

<p>A Justice of the Peace should note on his record the objections of the parties to the admission of papers in evidence.</p> <p>A Justice of the Peace should avoid even the suspicion of suing claims or entertaining jurisdiction of claims that come into his hands for collection.</p> <p>In an action on a contract, the record of a Justice to sustain a judgment for the plaintiff must show that the plaintiff made out a prima facie case, even though the defendant offered no defense.</p>

<p>Under the Act of April 2, 1868, the Sheriff is entitled to poundage, only for receiving and paying money to the plaintiff or his Attorney. Under the statute, he is only so entitled when he does actually receive and pay over the money.</p>

<p>County Commissioners cannot be surcharged by the County Auditors unless they have first been summoned to appear at the audit. The fact that the Auditors made application for the books, accounts and papers of the Commissioners is not to be construed as either a notice or a summons. Nor can the service of the legal summons be inferred from their having been called and examined as witnesses in an investigation of the Treasurer’s accounts, although those accounts (many, or most of them) were the same on which they themselves were surcharged.</p>

<p>Act of July 9, 1901, P. L. 614 — Title of Act Constitutional — Service of Summons — Return Day of Summons.</p> <p>No. 34, Feby. Term, 1903, Certiorari C. P. Erie Co.</p>

<p>Alderman's Jurisdiction — Damages for Breach of Warranty Contained in Deed — Justices' Jurisdiction of Cases of Breach of Contracts for Lands — Jurisdiction of Common Pleas on Appeal from Alderman Who Has no Jurisdiction.</p> <p>No. 189, Feby. Term, 1902, C. P. Erie Co.</p>

<p>A non-resident of a Ward or Borough has no right to hold the office of Constable for that Ward. The Act "of February 14, 1889, P. L. 6, would seem to recognize the reason for holding it to be essential why a Constable could hold residence in the Ward wherein he is elected or appointed to serve.</p> <p>A Constable having filed his bond, and taken the oath of office, cannot be ousted by rule to show cause why he should not be removéd but the proper method is to. proceed by quo warranto, under the Act of 1836.</p>

<p>Service oe Summons UpoN a CorporatioN — Chief Clerk of A DEPARTMENT-CERTIORARI.</p> <p>No. 70, January Term, 1903, C. P. of Luzerne Co.</p> <p>Certiorari to Henry Brenner, Alderman, 12th ward of the City of Wilkes-Barre, Pa.</p>

<p>Plaintiff’s motion to strike off appeal because the affidavit taken for said appeal was not in the words of the act will not be entertained until defendant has had an opportunity to amend his affidavit.</p> <p>The practice is in cases where the Justice is evidently responsible for the regularity in taking the appeal, and not the appellant to grant a rule, not “to strike off the appeal,” but “to show cause why the appellant should not perfect his appeal, or in default thereof why the same should not be stricken from the records.”</p>

<p>JURISDICTION-CONSTABLE-SERVICE AND RETURN OF SUMMONS.</p> <p>No. 1, March Term, 1903, C. P. of Pike County.</p>

<p>Magistrates — Attachment Against Non-Resident Debtor Under Act of May 8, 1874, P. L. 123 — Irregularities' — Waiver of by Appearance.</p> <p>No. 24, December Term, 1902, C. P. of Lancaster Co.</p> <p>Certiorari.</p>

<p>ALTERNATIVE MANDAMUS-DEMURRER-CONTROLLER'S DISCRETION — Constables.</p> <p>No. 176, February Term, 1903, C. P. Luzerne Co.</p>

<p>The Court of Common Pleas has no jurisdiction to review the action of a Mayor of the city upon an appeal from a conviction of the defendant for violation of an ordinance.</p> <p>As a general rule the character of the proceedings is determined by the process issued by the Magistrate who takes cognizance of the offense against a municipal ordinance. If the proceedings founded upon an information charging the violation of an ordinance, for the breach of which fine or imprisonment is imposed, a warrant issues unon the information, defendant is arrested and held to answer the charge contained in the information, a hearing is had if demanded, and if the evidence warrants, the defendant is convicted, costs and fines imposed upon him, and imprisonment in the event of his failure to comply with the finding of the Mayor or Magistrate. There is no longer any question but that such a proceeding is a summary conviction over which the Court of Quarter Sessions alone has jurisdiction upon the appeal.</p> <p>In cases where a summons is issued and a proceeding is had by the municipality for the recovery of a fine imposed by a Borough Ordinance, the action is in the nature of a civil proceeding for the recovery of a debt, and the Quarter Sessions has no jurisdiction upon an appeal.</p>

<p>Upon a claim made by the Sheriff under the fee bill of July 11, P. L. 663, which provides, inter alia, “for paying out money made or received on any writ, process, decree, order or sentence of Court, two cents on every dollar awarded .and implied or paid on any judgment, mortgage, encumbrance or other claim, provided that the amount of same does not exceed five hundred dollars; in' which case one half cent on every dollar in excess of this amount awarded and applied or paid as aforesaid: Said commissions to be allowed whether the money is paid with or without sale, and also in all cases where, after levy, the debt has been paid direct to plaintiff or a compromise made without the money going through the Sheriff’s hands,” in the absence of collusion or compromise, the expression _ “said commissions to be allowed whether the money is paid with or without sale” when it is paid to the Sheriff, either by the debtor in satisfaction of the debt, and also the expression “also in all cases where after levy the debt had been paid direct to plaintiff, or a compromise made without the money going through the Sheriff’s hands,” are construed to mean where the debt is actually paid or compromised.</p>

<p>A judgment in trespass cannot be sustained upon a claim “$16.00 damages for stove bought of defendant . . . same being worthless and not fit to use. The stove delivered not being the same as that purchased by plaintiff ... and defendant has refused to repair said stove or exchange same as agreed at time of delivery.”</p>

<p>There seems to be no authority which would authorize the payment of salary or wages to an employe of the state during the period of his suspension even though reinstated.</p> <p>A man whose conduct is such as to invite investigation, followed by a suspension from office ad interim, and who, during the time of his suspension, renders no service and cannot render service to the state, can have no legal claim for the payment of the expenses he is put to in defending himself; nor does the fact that he is subsequently acquitted of the charge and reinstated entitle him to present such a claim.</p>

<p>If the Court upon review of the Justice’s record be of the opinion that part of the proceedings is regular and good and part of them irregular and bad* it has discretion to quash the proceedings in part, and approve what is regular.</p> <p>But where the items are not clearly stated so that the Court may be able to separate the good from the bad, the whole must be set aside.</p> <p>Where there is no express or implied contract upon which to recover costs of repairs, the sole remedy is by an action of trespass for the injury, and the plaintiff’s labor and expenditures would not be the cause of action, but evidence only upon the measure of damages.</p> <p>Where the only right of action as slated is founded upon a contractual relation and nothing else, the whole case is necessarily within the jurisdiction of the Justice.</p>

<p>City Ordinances — Smoke—Legislative! Power — Nuisances.</p> <p>No. 391, December Term, 1899, C. P. No. 1, Allegheny County.</p> <p>Appealed from Alderman.</p> <p>Appeal from judgment of C. P. to Super. Ct.</p> <p>No. 42, April Term, 1902.</p> <p>Trial before Stowe, P. J. Verdict favor of plaintiff, subject to question of law, reserved, for $25.00. The Court subsequently entered judgment for defendant, non obstante veredicto.</p> <p>The ordinance in question was as follows:</p> <p>“AN ORDINANCE”</p> <p>“To regulate and suppress the production and emission of smoke from bituminous coal, and to provide penalties for the violation thereof in the city of Pittsburg.</p> <p>“Section 1. Be it ordained and enacted by the city of Pitts-burg in Select and Common Councils assembled, and it is hereby ordained and enacted by the authority of the same that from October 1, 1895, the emission of more than 20 per cent, of black or dark gray smoke from any chimney or smokestack where bituminous coal is used as fuel in connection with boilers for heating and power purposes, shall be deemed and is hereby declared to be a public nuisance.</p> <p>“Section 2. That it shall be unlawful for any corporation, co-partnership or individual owning, controlling or using any chimney or smokestack used in connection with boilers within the city limits, as provided in Section 1, to allow, suffer or permit smoke from bituminous coal to be emitted or to escape therefrom.</p> <p>“Section 3. Any corporation, co-partnership or individual who shall or may allow, suffer or permit smoke from bituminous coal to be emitted or escape from any chimney or smokestack used in connection with boilers for over three minutes* duration at any one time, shall in addition to any and all laws requiring the abatement of nuisances, forfeit and pay to the city of Pittsburg for every such offense, a sum not less than ten ($10) dollars or more than fifty ($50) dollars, to be recovered before any alderman of the county of Allegheny or any Police Magistrate of the city of Pittsburg as debts of like amounts are now recoverable.</p> <p>“Section 4. No discrimination shall be made against any device or method which may be used which will accomplish the purpose of this ordinance in relation to the said matter.</p> <p>“Section 5. The director of the department of public works of the city of Pittsburg is hereby empowered and directed to enforce the provisions of this ordinance.</p> <p>“Section 6. That any ordinance or part of ordinance conflicting with the provisions of this ordinance be, and the same is, hereby repealed so far as the same affects this ordinance.’*</p> <p>The jury returned a verdict for plaintiff for $25.00, subject to the question of law reserved.</p> <p>The court susequently entered "judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p> <p>William W. Smith, with him T. D. Carnahan, for appellant. Municipal ordinances are especially entitled to a reasonable construction, and when they will admit of two constructions, they should receive that which is consistent with the power given, and' not that which is in violation of it: Johnson v. Philadelphia, 60 Pa. 445; Whitlock v. West, 26 Conn. 406; Municipality v. Cutting, 4 La. Annual, 335; Baltimore v. Hughes, 1 Gill & J. 480; Com. v. Dow, 51 Mass. 382.</p> <p>The 'Pittsburg smoke ordinance is clearly reasonable as shown by the following authorities: 1 Dillon on Municipal Corps, sec. 379; Huckenstine’s App., 70 Pa. 102; Livingston v. Wolf, 136 Pa. 519; Allentown v. W. U. Tel. Co., 148 Pa. 117; Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355; Slaughter House Cases, 16 Wall. (U. S.) 36; Barbier v. Connolly, 113 U. S. 27 (5 Super. Ct. Repr. 357) ; Weil v. Ricord, 24 N. J. Eq. 169; Bancroft v.'Cambridge, 126 Mass. 438; Brooklyn v. Nassau Electric R. R. Co., 61 N. Y. Supp. 33; St. Louis v. Heitzeberg Packing, etc., Co., 141 Mo. 375 (42 S. W. Repr. 954).</p> <p>The ordinance is not unlawfully discriminatory; People v. Lewis, 86 Mich. 273 (49 N. W. Repr. 140).</p> <p>The ordinance is valid unless clearly shown to be unreasonable: Erie & North East R. R. Co. v. Casey, 26 Pa. 287; Speer v. School Directors, etc., of Blairsville, 50 Pa. 150; Powell v. Com., 114 Pa. 265; Marshall Field & Co. v. Chicago, 44 Ill. App. 410; Brown v. Piper, 91 U. S. 37; Richards’ App., 57 Pa. 105.</p> <p>The rules for the construction of ordinances and orders of a municipal corporation are the same as for the statutes of the legislature: In the Matter of Yick Wo, 68 Cal. 294; Zorger v. Greensburg, 60 Ind. i; Maryland v. Kirkley, 29 Md. 85.</p> <p>Councils may declare that to be a nuisance which was not a nuisance at common law: Com. v. Parks, 155 Mass. 531 (30 N. E. Repr. 174).</p> <p>Even if it should be held that section 1 of the ordinance is invalid, the whole ordinance is not thereby rendered invalid: Fox’s App., 112 Pa. 337.</p> <p>Whether an ordinance he reasonable and consistent with the law or not is a question for the Court: Kneedler v. Norris-town, 100 Pa. 368; Livingston v. Wolf, 136 Pa. 519.</p> <p>— The city had no legislative authority for the enactment of the ordinance; State v. Mott, 61 Md. 297; Yates v. Milwaukee, 10 Wall. (U. S.) 497.</p> <p>The ordinance is contradictory and insensible.</p> <p>The ordinance discriminates between classes without cause: 2 Wood on Nuisance, p. 984; State v. Sheriff, 48 Minn. 236.</p> <p>The ordinance is unreasonable: Huckenstine’s App., 70 Pa. 102; St. Louis v. Pleitzeberg Packing, etc., Co., 141 Mo. 375 (42 S. W. Repr. 954) ; St. Paul v. Gilfillan, 36 Minn. 298.</p>

<p>In the case of a summary conviction for a violation of'the Sunday laws, the recognized practice seems to be to secure a special allowance from the Court of Common Pleas for writ of certiorari to the Justice of the Peace or Alderman.</p>

<p>Wages for Manual Labor — Exemption—Testimony.</p> <p>No. 151, April Term, 1902, C. P. Wyoming Co.</p> <p>Appeal No. 65, January Term, 1903, Superior Court.</p> <p>Trial before Dunham, P. J.</p> <p>cited: Jones v. Susquehanna Coal Co., 1 Pa. Superior Ct. 331; Smith v. Brooke, 49 Pa. 147; Wentroth’s Appeal, 82 Pa. 469; Pa. Coal Co. v. Costello, 33 Pa. 241; Pa. & Del. R. R. Co. v. Leuffer, 84 Pa. 168; Frutchey v. Lutz, 167 Pa. 337.</p> <p>cited: Hoffa’s App., 1 Pa. Superior Ct. 357; Millheim’s App., 1 Pa. Superior Ct. 367; Seider’s App., 46 Pa. 57; Jones v. Susquehanna Coal Co., 1 Pa. Superior Ct. 331.</p>

<p>PROCEEDINGS FOR POSSESSION-ACT OF DECEMBER 14, 1863— Landlord AND Tenant — Justice of the Peace.</p> <p>No. 133, October Term, 1902, C. P. of Montgomery Co.</p>