2 April 1856 § 1. P. L. 219. given. mons are served, upon the agent or clerk of such defendant or defendants, at the usual place of business, or residence of such agent or clerk, with the same effect as Actual notice to be if served upon the principal or principals personally :(v) 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 affirmation of the plaintiff, or other person, to the service thereof, to the magistrate or court before which such action may be pending. (w) 21 April 1858 § 1. P. L. 403. 12 May 1887. P. L. 96. Amendments of authorized. 56. 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. (3.) Amendments. 57. The several justices of the peace and aldermen of this commonwealth shall have power, in all actions pending or hereafter to be brought before them, in any stage of the proceedings, before final judgment, on reasonable notice, to grant a names of any party hearing and permit amendments by changing or altering the christian or surname(x) of any party plaintiff or defendant, whenever it shall be made to appear, upon due proof, that a mistake or omission has been made in the christian or surname of any party plaintiff or defendant: Provided, That, if by such alteration or amendment the adverse party shall be taken by surprise, which shall be verified by oath or affirmation of such party, the said justice or alderman shall grant a continuance of said hearing to such future time as said justice or alderman may deem proper, not exceeding five days for said hearing. Surprise. 22 March 1814 § 7. 6 Sm. 183. Amicable actions. 20 March 1810 § 6. 5 Sm. 165. Of judgment by default. And of nonsuit. (4.) Amicable actions. 58. The said aldermen and justices shall take cognizance, 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." (5.) Judgments by default. 59. In case the defendant does not appear upon summons, on the day appointed, the justice may, on due proof, by oath or affirmation, (y) of the service of his summons as aforementioned, proceed to give judgment by default,(z) publicly, against such defendant, allowing twenty days, (a) 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 (a) after such judgment, shall enter [special] bail, and pay the costs accrued on the execution, he shall then be entitled to an appeal (b) or stay of execution, in the same manner as though the bail had been entered at the time of rendering 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, (c) for the costs, and fifty cents per day for the reasonable costs of the defendant, for his trouble in attending such suit. (v) See Koecher v. Thompson, 2 W. N. C. 487. (w) See Vankirk v. Wetherill, 1 Leg. Gaz. 131. This does not include one who merely offers for sale, through an agent, town lots situate in the county in which suit is brought. Ibid. (2) A justice cannot amend the form of the action without the defendant's consent. Fahnestock v. Bushey, 5 Lane. 57. (y) To sustain a judgment by default, it must appear by the record, that the constable was sworn to his return. Fitzgibbons v. Essen, Com. Pleas, Phila., 10 March 1862. MS. Due proof of the service of process is essential to confer jurisdiction. Benedict v. Hickok, 1 Pears. 133. Swartwood v. Exeter Township, 1 Kulp 304. Smith v. Noone, 1 Leg. Rec. R. 165. (2) 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. Lenore v. Ingram, 1 Phila. 519. McCowan v. Ward, 2 Pitts. 251. McCale v. Kulp, 8 Phila. 636. Tyler v. Anthony, 2 Luz. L. Reg. 238. Tubbs v. Drum, 2 Kulp 204. To sustain a judgment by default, the record must set forth sufficient to show jurisdiction both of the person and subject-matter. Smith v. Noone, 1 Leg. Rec. R. 165. Hawthorne v. Filler, Ibid. 48. Starch v. Snyder, Ibid. 172. (a) See infra 62, note. (b) See Stiles v. Powers, 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, 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. Farrell, Com. Pleas, Phila., 14 May 1853. MS. Herron's Appeal, 29 P. S. 240. If, however, the exe cution be returned, the lien is gone, though the appeal be never perfected. Cope's Appeal, 39 P. S. 284. (c) He can only enter judgment of nonsuit, where there has been no appearance. Gould v. Crawford, 2 P. S. 89. Lawver v. Walls, 17 Ibid. 75. But if he fail to appear at an adjourned hearing, the justice may enter a nonsuit, which is no bar to another suit; the effect is the same as if there had been no appearance. Vaught v. Soher, 73 P. S. 49. No appeal lies from a regular judgment of nonsuit, under this section. Selfridge v. Tilghman, 1 Phila. 580. (6.) of the trial before the justice. final. 60. If the parties appear(d) before the justice, either in person or by agents, the 20 March 1810 § 3. justice shall proceed to hear their proofs and allegations, (e) and if the demand 5 Sm. 162. shall not exceed five dollars and thirty-three cents, shall give judgment, as to right Judgment not exand justice may belong, which judgment shall be final; but if the demand or sum ceeding $5.33 to be 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 referees, (g) 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 Oath of referees, parties submitted to them;" and on having heard their proofs and allegations, they, or a majority of them, shall make out an award, under their hands, and transmit the of their award. same to such justice, who shall thereupon enter judgment for the sum awarded, (h) and costs, and shall allow each of the said referees fifty cents per day for his ser- Fees. vice, which judgment so obtained, when not exceeding twenty dollars, (i) shall be When judgment final and conclusive to both plaintiff and defendant without further appeal; and on award to be 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 Constables to nofixed for a hearing; and if any person so chosen and notified as aforesaid shall tify referees. neglect or refuse to serve, he shall, for every such neglect or refusal, unless pre final. vented by sickness or some other unavoidable cause, forfeit and pay the sum Penalty for refusal of two dollars for the use of the poor, and where there are no poor, to be paid to serve. 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. P. L. 62. 61. In all actions brought before a justice of the peace, when both parties 15 May 1879 § 1. desire to submit the case to referees, and if either party or their agents shall fail to agree upon the chosen referees, then the justice shall write down seven names How referees to of disinterested citizens of the township, ward or borough where suit is brought, be chosen where from which list the parties, commencing with the plaintiff, shall strike out alter- parties disagree. nately from said list, until there shall be three names left, who shall be the referees in the case. 5 Sm. 163. 62. If either party or their agents shall refuse to refer, the justice may proceed 20 March 1810 § 4 to hear and examine their proofs and allegations, (k) and thereupon give judgment publicly,() as to him, of right, may appear to belong;(m) either party having the If parties refuse to right to appeal, (n) within twenty days (o) after judgment being given, either by decide. (d) If the parties voluntarily appear, before the return-day, and consent to the hearing, the justice may proceed to give judgment. Buckmyer v. Dubs, 5 Binn. 29. Barber v. Chandler, 17 P. S. 48. (e) The justice is the judge of the authority of the agent. Barber v. Chandler, 17 P. S. 48. The defendant's agent is competent to enter an appeal. Jones v. Delaware and Hudson Canal Co., 10 Phila. 570. (g) The cause can be referred only by consent of both parties. Bayard v. Hawk, 3 P. & W. 175. And see infra 76. (h) 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. Paul v. Cunningham, 9 P. S. 106. The award merges in the judgment. Warner v. Scott, 39 P. S. 274. The record must show that the referees, as well as the justice, acted in conformity with the statute. Weissbrod v. Gelder, 3 Leg. Gaz. 260. (i) If the plaintiff's demand do not exceed $20, he can have no appeal. McKim v. Bryson, 2 S. & R. 463. Stoy v. Yost, 12 Ibid. 385. Bayard v. Hawk, 3 P. & W. 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. Downey v. Ferry, 2 W. 304. Stewart v. Keemle, 4 S. & R. 72. Kleintob v. Rood, 2 Kulp 419. Where the sum sued for by the plantiff, 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. Soop v. Coats, 12 S. & R. 388. McCloskey v. McConnell, 9 W. 17. Marks v. Swearingen, 3 P. S. 454. Prestley v. Ross, 11 Ibid. 410. And in such case, the defendant is likewise entitled to an appeal, by act 20 March 1845. Prestley v. Ross, 11 P. S. 410. But if the plaintiff claim $25, and there refer, justice to is an award in his favor for $11, neither party can appeal. Cook v. Dunkle, 25 P. S. 340. And see Mack v. Thayre, 2 Phila. 291. The amount in controversy may be shown by parol. Downey v. Ferry, 2 W. 304. (k) A claim, in general terms, for " money had and received" is insufficient; the record must show how the cause of action arose. Moore v. Philadelphia and Reading Railroad Co., 11 Phila. 348. (1) The judgment will be presumed to have been given publicly, unless the contrary appear. Snyder v. Carfrey, 54 P. S. 90. And see Daly v. Nolan, 6 Phila. 310. Graham v. Christ, 1 W. N. C. 169. (m) He cannot enter a compulsory nonsuit, after appearance; but such judgment is conclusive, unless appealed from: it is equivalent to a judgment that the plaintiff has no cause of action. Gould v. Crawford, 2 P. S. 89. Lawver v. Walls, 17 Ibid. 75. Kase v. Best, 15 Ibid. 101. Carey v. Watson, 4 Luz. L. Obs. 24. But the discontinuance of an action before a justice, after a hearing, is no bar to a subsequent suit. Riddle v. Tidball, 2 Am. L. Reg. 120. Although the plaintiff confess judgment for the costs. Gibson v. Gibson, 20 P. S. 9. Blair v. McLean, 25 Ibid. 77. If, however, a plaintiff appeal from a judgment for the defendant on the merits, and then discontinue, he is bound. Rose v. Turnpike Co., 3 W. 46. Felton v. Weyman, 10 P. S. 70. If the case be adjourned without day, the justice cannot afterwards enter judgment, without notice to the defendant. Brown v. Hambright, 3 Luz. L. Reg. 35. (n) If the defendant have a cross-demand exceeding $5.33, and the decision of the justice be against his set-off, he is entitled to an appeal. Klingensmith v. Nole, 3 P. & W. 120. Downey v. Ferry, 2 W. 304. Bonham v. Santee, 1 Luz. L. Reg. 21. Leary v. McKeeby, 7 Ibid. 195. But it must be a bona fide claim to set off. Brown v. School Directors, 18 P. S. 78-9. The parties may waive the right of appeal. 20 March 1810 § 4. the justice alone, or on award of referees, when such award shall exceed the sum of twenty dollars.(p). 5 Sm. 163. Parties may appeal. Ibid. § 7. 63. 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, bookaccount or damages of assumption,(9) against a plaintiff, which shall not exceed Defendant neglect the sum of one hundred dollars, (r) before a justice of the peace, shall be and is ing to set off his demand, to be barred. When judgment by default, to be opened. Ibid. § 13. Provision where stay of execution is waived. hereby for ever barred(s) from recovering against the party plaintiff, by any after suit.(1) 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(u) before the justice, within thirty days, on proof being made, either on oath or affirmation 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. 64. In all bonds, bills or notes, wherein, by a special provision in writing 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 summons [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 judgment by default, the defendant shall, at any time within twenty days Rheem v. Allison, 2 S. & R. 114. Pritchard v. Denton, 8 W. 372. Bocleau v. Phillips, 1 Ash. 92. But it must be by agreement in writing. Dawson v. Condy, 7 S. & R. 366. And see Foss v. Bogan, 92 P. S. 296. An appeal lies from a judgment on a sci. fa. Guilky v. Gillingham, 3 S. & R. 93. And from a judgment by confession. Rowen v. King, 25 P. S. 409. appeal lies from a regular judgment of nonsuit. Selfridge v. Tilgham, 1 Phila. 580. But no (0) In computing the time, the day of judgment is to be excluded. Browne v. Browne, 3 S. & R. 496. Cromelien v. Brink, 29 P. S. 525. Thomas v. Premium Loan Association, 3 Phila. 425. And if the twentieth day fall on Sunday, the appeal may be entered on the next day. Goswiler's Estate, 3 P. & W. 201. Harker v. Addis, 4 P. S. 515. If the justice, by mistake, refuse an appeal, it may subsequently be entered, after the twenty days. Noble v. Houk, 16 S. & R. 421. Read v. Dickinson, 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. Russell v. Smith, 1 Phila. 425. See Sleck v. King, 3 P. S. 211. Paul v. Cunningham, 9 Ibid. 106. Taylor v. Smith, 2 Clark 318. But if such rule be taken within twenty days, it extends the time for entering an appeal. Read v. Dickinson, 2 Ash. 224. It is too late to enter an appeal, after the money is made on an execution, although within the twenty days. Patterson v. Peironnet, 7 W. 337. (p) The sum in controversy may be shown by parol. Downey v. Ferry, 2 W. 304. See supra 60, note i. (q) This includes unliquidated damages arising from contract. Nickle v. Baldwin, 4 W. & S. 290. Carman v. Franklin Fire Insurance Co., 6 Ibid. 155. Shoup v. Shoup, 15 P. S. 362. (r) If the set-off shall exceed $100, it must be rejected as beyond the jurisdiction of the justice. Milliken v. Gardner, 37 P. S. 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." Holden v. Wiggins, 3 P. & W. 469. Van Why v. Fillmore, 3 Luz. L. Reg. 71. See Stroh v. Uhrich, 1 W. & S. 59. Ash. (s) This is imperative. Herring v. Adams, 5 W. & S. 460. After process is issued by one justice, it is unlawful for the defendant to sue for a crossdemand before another. Slyhoof v. Flitcraft, 171. White v. Johnson, 2 Ibid. 146. If, however, both suits be carried on without objection, both proceedings are valid. Groff v. Ressler's Administrator, 27 P. S. 71. (t) But he is not barred from proving such set-off, on the trial of an appeal from the judgment of the justice. Tate v. Tate, 2 Gr. 150. (u) 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 adverse party, under § 4 of the act of 1810: 2. Where the defendant is entitled to a rehearing, after judgment by default, under § 7 of the same act: 3. In a proceeding under the act of 12 July 1842, where the process has not been served personally on the defendant. Stockdale v. Campbell, 1 Phila. 520. Whitehead v. Gillespy, Ibid. 515. Gregg v. Ashenfelder, 5 Ibid. 468. Long v. Caffrey, 8 Phila. 546. Nippes v. Kirk, Ibid. 299. But though this be so, as to a judgment regularly entered, he may open a judgment by default, which was irregu larly entered without service of process on the defendant. Dicks v. Carter, 21 L. I. 340. It was decided, as early as 1702, that a new trial cannot be granted by an inferior court, upon the merits. Case of the Mayor and Aldermen of Bristol, 2 Salk. 650; s. c. 7 Mod. 84. Rex v. Day, Sayer 202. 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. Catlin v. Robinson, 2 W. 378-80. Stephens v. Cowan, 6 Ibid. 513. Mather's Executor v. Patterson, 33 P. S. 485. See Gibbons v. Sheppard, 2 Brewst. 124-7. The time for an appeal is to be computed from the rehearing of the case. Sleck v. King, 3 P. S. 211. Russell v. Smith, 1 Phila. 425. Notice of the rule to open the judgment should be given to the other party. Larue v. Hagarty, 5 Phila. 530. A motion to open the judg ment, is not a waiver of the want of a proper service of the original process. Johnson v. Aylesworth, 3 Pitts. 237. (v) Parties may waive the right of appeal. Rheem v. Allison, 2 S. & R. 114. Kerr v. Smith, 2 Bro. 99. Bocleau v. Phillips, 1 Ash. 92. Watson v. Wetter, 91 P. S. 385. But such agreement must be in writing. Dawson v. Condy, 7 S. & R. 366. And see Wetter v. Kiley, 95 P. S. 461. They may also waive the right to except to an award of arbitrators. Mussina v. Hertzog, 5 Binn. 387. Andrews v. Lee, 3 P. & W. 99. Rogers v. Playford, 12 P. S. 181. Bingham's Trustees v. Guthrie, 19 Ibid. 418. Wightman v. Pettis, 29 Ibid. 283. McCahan v. Reamey, 33 Ibid. 535. And even to sue out a writ of error, which is a writ of right. Ranck v. Becker, 12 S. & R. 416. Cuncle v. Dripps, 3 P. & W. 291. Townsend v. Stone Dressing Co., 15 N. Y. 587. So, a tenant may by agreement waive the benefit of the exemption law; and it will be binding on him. McKinney v. Reader, 6 W. 34. 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 therefore irrevocable. Bowman v. Smiley, 31 P. S. 225; s. c. 3 Gr. 132. Case v. Dunmore, 23 P. S. 93. Winchester v. Costello, 2 Pars. 279. verbal agreement to waive the exemption, made without consideration, is not binding on the debtor. Hoffman v. McDermond, 1 Pitts. 197. It must be expressed in clear and unequivocal language. Brour v. Dougherty, 4 W. N. C. 36. And see Harper v. Dank, 2 Pears. 520. thereafter, be entitled to a rehearing or appeal, agreeably to the provisions of the 20 March 1810 § 18. 6th and 7th sections of this act, (w) although execution may have issued.(x) 5 Sm. 163. 65. A defendant against whose body, by the provisions of this act, an execution 12 July 1842 § 33. cannot be issued by an alderman or justice of the peace, shall be required, in P. L. 847. order to obtain an [appeal, stay of execution (y) or] adjournment, to give a bond or Bail on adjournrecognizance in the nature of special bail, (2) conditioned that no part of the prop- ment. erty 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 demands shall be satisfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution issued on the judgment obtained in such cause, if he shall obtain such judgment; and if the condition of such bond or recognizance be broken, (a) and an execution on such judgment be returned unsatisfied in whole or in part, the plaintiff in an action on such bond or recognizance, shall be entitled to recover the value of the property so removed, secreted or assigned. 66. It shall be the duty of justices of the peace and aldermen of this common- 22 March 1877 § 1. wealth, to render judgment, in any cause or causes pending before them, within P. L. 18. Ibid. § 2. a period of ten days after all the evidence in said causes shall have been heard.(b) (7.) of depositions. 5 Sm. 166. witnesses may be ment. 68. Upon the affidavit of either party, or their agent, that the testimony of 20 March 1810 § 8. 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 Depositions of abpostponed to a certain day, within such reasonable time as the distance of the sent and infirm witness, the season of the year and the circumstance of the roads may render it taken. proper, to obtain the deposition of the witness wanted; and whenever a cause is Defendant to give postponed at the instance of the defendant, he shall enter into a recognizance for bail on adjourna sum sufficient to cover the demand in question, together with the costs, with one sufficient surety [for his appearance(c) 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 of the interrogaquestions shall be delivered to the opposite party or his agent, who may also file tories. such additional questions as he may think proper:(d) 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 When depositions county, or in cases where the parties or their agents agree to enter a rule to take may be taken withdepositions, it may be done without filing interrogatories, upon notice given, ries. 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. out interrogato 69. In all cases when a suit shall be pending before a justice of the peace, it 80 March 1829 § 1. 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. 10 Sm. 812. How testimony out of the state may be obtained. Ibid. § 2. Commissioner may 70. 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, be appointed. 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. 71. In all cases where a commission shall be issued from, or a rule be taken in (w) See supra 59, 63. (r) It is the province of the justice to determine whether the appeal be regularly taken; and if he allow it, the constable cannot refuse to recognize it, on the pretence that the justice committed an error. If he proceed with the execution, he becomes a trespasser. O'Donnell v. Mullin, 27 P. S. 199. (1) Repealed as to bail on appeal and for stay of execution. See infra 95, 96, 109. (z) See Okeson v. Shirlock, 9 W. & S. 142. (a) A sale under a subsequent execution is a breach of such recognizance. Lerch v. Stichter, 13 P. S. 86. See Hallowell v. Williams, 4 Ibid. 339. So is a general assignment for the benefit of creditors. White v. Doak, 3 Clark 259. 26 Feb. 1831 § 1. P. L. 92. (b) See Barnes v. Badger, 41 Barb. 98; Wiseman v. Panama Railroad Co., 1 Hilt. 300. If the defendant has no notice of the entry of judgment, the time for taking an appeal will begin to run, at the end of ten days from the final hearing. Haines v. Townsend, 1 Chest. Co. R. 146. Where a justice reserves his decision until an hour certain, and fails at that time to render judgment, a party after waiting a reasonable time may depart, and the time for appeal runs from the end of ten days thereafter or from the date of notice of judgment. Boyd v. Ward, 10 C. C. 9. (c) For condition of recognizance, see supra 65. (d) See infra 75. P. L. 92. Commissioners may issue subpœnas. 26 Feb. 1831 § 1. any court of record in this commonwealth, or from any justice of peace or alderman, 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 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 subpoenas to such witnesses as may be requested by any of the parties concerned, requiring their attendance at a certain day, hour and place therein designated, having regard to the distance of such witnesses, and under a penalty not exceeding one hundred dollars. Ibid. § 2. And attachments 72. In case of the non-attendance of any such witnesses, it shall be lawful for such commissioner, or person or persons duly authorized as aforesaid, on proof, against defaulting by oath or affirmation, of the due service of the subpoena, to issue process of attachment against the defaulting witness; whereupon the same proceedings shall be had, as are used and allowed in like cases, in the courts of record in this commonwealth. witnesses. Ibid. § 3. Party injured may sue. Ibid. § 4. Proceedings on refusal to testify. 11 April 1863 § 1. P. L. 346. Interrogatories need not be filed on rule to take depositions within the state. 26 April 1855 § 1. P. L. 304. 73. 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 subpœna is issued from a court of record. 74. 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. (e) 75. So much of the 8th section of the act approved the 20th day of May 1810, as requires interrogatories to be filed in taking depositions on rules issued by justices of the peace within this commonwealth, be and the same is hereby repealed, except so far as relates to depositions taken without the state. (8.) Proceedings before referees. 76. 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 No action to be re- to the action, or their agents; which agreement or assent shall be noted by such ferred except by justice or alderman upon his docket.(g) consent. 26 March 1814 § 1. 6 Sm. 206. 77. 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 Vacancies in refer- peace and aldermen in cases of trespass, trover and rent, shall not attend at ees, how supplied. the time and place fixed for hearing the cause, it shall be the duty of the referee or Ibid. § 2. How referees may 12 July 1842 § 26. P. L. 345. Of the summons or attachment against non-residents. Ibid. § 27. When attachment of fraud. 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. (h) 78. 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.(i) IX. Of proceedings by attachment. 79. Whenever, by the provisions of the 24th section of this act, (k) no capias can issue, and the defendant shall reside out of the county,() he shall be proceeded against by summons or attachment, (m) 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. 80. It shall be the duty of any alderman or justice of the peace(n) to issue an attachment against any defendant, on the application of the plaintiff, in any case may issue in 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 property, with intent to defraud his creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete any of his property with the like fraudulent intent; (o) which affidavit shall also specify the amount of the Plaintiff to make affidavit. (e) See tit. "Evidence," 2, 3, notes. (g) The consent of both parties must appear upon the record. Rambo v. Schmehl, 1 Wood. 492. (h) After the referees have all met and been sworn, vacancies cannot be supplied. Wilson v. Cross, 7 W. 495. No authority is given to supply a second vacancy. Ibid. (i) The referees may adjourn, before being sworn. Boome v. Reynolds, 1 S. & R. 231. Eckert v. Sheets, 6 Ibid. 275. (k) Supra 49. |