if there be more than one, shall, by a writing to be filed by him in the office of 20 March 1810 § 15. such justice, within fifteen days after the payment, forbid the plaintiff so to do.

5 Sm. 169.

P. L. 458.

125. The penalty mentioned in the 15th section of the act to which this is a 4 April 1831 § 1. supplement, passed on the 20th day of March 1810, for not entering satisfaction in any case in said section provided for, shall be sued for and recovered before any How recoverable. alderman or justice of the peace of this commonwealth, as debts of similar amount are sued for and recovered.

XII. Of the attachment-execution.

P. L. 459. Justices attachments in execution.

may issue

126. The jurisdiction of aldermen and justices of the peace, is hereby extended 15 April 1845 § 1. to the issuing, service, trial, judgment and execution of all process required by the 32d, 33d, 34th, 35th, 36th, 37th and 38th sections of the act relating to executions, passed the 16th day of June 1836.(h) 127. Any alderman or justice of the peace, before whom any judgment remains Ibid. § 2. unsatisfied, and an execution has been returned "no goods," (i) may, on the application of the plaintiff, and his compliance with the requisitions of the act to which Such attachments this is a supplement, issue an attachment in the nature of an execution, as therein cution is returned provided, to levy upon stock, debts and deposits of money belonging or due to the defendant, in satisfaction of said judgment.

to issue where exe

no goods."

Ibid. § 8.

128. The said writ of attachment may be issued, returnable (in) not less than four nor more than eight days, (k) and shall be served in the manner pointed out Of the service of for the service of a summons,() upon the debtor, depositary, bailee, pawnee or the attachment. other persons having property of the defendant in his hands, made liable to attachment by the act to which this is a supplement. And on or before the return-day Plaintiff may file of said writ, the plaintiff may file with the magistrate interrogatories in writing, interrogatories. addressed to the person summoned as garnishee, in regard to the property and effects of the defendant alleged to be in his hands at the time of the service of said writ; a copy of the same, with a rule to answer, shall be served upon said gar- Copy, with rule to nishee personally, to answer under oath or affirmation all such interrogatories as the magistrate shall deem proper and pertinent, within eight days after the same garnishee. shall be served.

answer, to be

served on

Ibid. § 4.

129. If said garnishee shall neglect or refuse to answer said interrogatories within eight days (unless, for cause shown, the time has been extended), he shall be adjudged to have in his possession property of the defendant equal in value in on neglect to an(to) the demand of said plaintiff; and judgment may be rendered by default be rendered against said garnishee for the amount of the same, with costs. (m)

swer, judgment to against garnishee.

Ibid. § 5.

130. If the garnishee, in his answers, admit that there is in his possession or control, property of the defendant liable, under said act, to attachment, (n) then How judgment to said magistrate may enter judgment specially, to be levied out of the effects in the be entered on adhands of the garnishee, or so much of the same as may be necessary to pay the mission of assets. debt and costs:(0) Provided, however, That the wages of any laborers, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer.(p)

131. The plaintiff, the defendant, (9) or the garnishee in the attachment, may Ibid. § 6. appeal from the judgment of the aldermen or justice of the peace, to the next term of the court of common pleas, on complying with the provisions of the laws regu- Parties may lating appeals in other cases: Provided, That the fees allowed justices and alder- appeal. men, and constables, under this act, shall be the same as allowed by the general fee-bill for similar services in other cases.

(h) See tit. "Execution." The act of 20 March 1845, § 4, dispensing with service on the defendant in certain cases, is hereby extended to suits before justices. A return that the defendant is "not found," is insufficient. Haine v. Viereck, 2 Phila. 40.

(2) Without a return of "no goods," the justice has no jurisdiction to issue an attachment. Hagarty v. 'Seitzinger, 1 Luz. L. Reg. 109. McGovern v. McTague, 13 L. Bar 119. But an attachment may issue from the common pleas, without such return. Swanger v. Snyder, 50 P. S. 218.

(k) In computing the time, the first day is to be excluded. Love v. North Branch Canal Co., 2 Luz. L. Obs. 28.

(1) See supra 46, and notes. The attachment must be personally served on the defendant, if a resident of the county. Freeland v. Elsworth, 3 Luz. L. Reg. 45. Everhart v. Norton, 1 Kulp 449.

(m) See Masters v. Turner, 30 L. I. 337.

(n) See Kelchner v. Updegrove, 2 Del. Co. R. 205. (0) A claim for exemption is too late, if not made till the day of hearing. Rushworth v. Swope, 3 Leg. Gaz. 221. And see Morris v. Shafer, 93 P. S. 489.

(p) This is intended to protect and secure to the laborer what is earued by his own hands, not the con

Fees.

tracts of those who make profit out of the labor of others. Heebner v. Chave, 5 P. S. 117. But the wages of a miner, who, by his own labor, mines coal at a certain price per ton, and employs a common laborer to assist him, at so much per day, are not attachable under this act. Pennsylvania Coal Co. v. Costello, 33 P. S. 241. And see Scott v. Watson, 36 Ibid. 342. This proviso applies to all judgments, whether entered in the common pleas, or on the docket of a justice. Catlin v. Ensign, 29 P. S. 264. Myers v. Lackawanna and Bloomsburg Railroad Co., 2 Luz. L. Reg. 239. A prospective waiver of the benefit of this proviso, in a promissory note, is void, and confers no jurisdiction on the justice. Firmstone v. Mack, 49 P. S. 387. By act 8 May 1876, wages are attachable for boarding: tit. "Inns and Taverns."

(2) The defendant's assignee for the benefit of creditors, though not a party to the record, may appeal. Bletz v. Haldeman, 26 P. S. 403. An appeal lies to the supreme court from the judgment of the common pleas upon a certiorari to the justice's judg ment. The act 20 March 1810, 5 Sm. 172, § 22, tit. "Errors and Appeals," does not apply to proceedings under this act. Strouse v. Lawrence, 34 W. N. C. 230.

22 March 1814 § 1.

6 Sm. 182.

Justices to have

XIII. Proceedings in trespass and trover.

132. The justices of the peace of the several counties of this commonwealth and the aldermen of the city of Philadelphia, shall have jurisdiction(r) of actions of trover and conversion, and of actions of trespass (s) brought for the recovery of jurisdiction in tres- damages for injury done or committed (1) on real(u) and personal estate (v) in all cases where the value of the property claimed, or the damages alleged to have been sustained, shall not exceed one hundred dollars.(w) ·

pass and trover.

Ibid. § 2. Justice to decide where demand is not above $10.

Where demand ex

ceeds $10, referees to be appointed.

When justice's judgment to be final.

Proceedings where

defendant makes

oath that the title to lands will come

in question.

26 April 1855 § 1. P. L. 304.

26 March 1814 § 1. 6 Sm. 206.

133. It shall be the duty of the justice or alderman before whom any such suit or action is brought, if the demand does not exceed ten dollars, to proceed to hear and determine as to him justice and right shall appear to belong; but if the demand in controversy should exceed that sum, then, on the request of either party,(x) or his or her agent, three reputable citizens shall be chosen by the parties or their agents, as referees, or if they cannot agree, or if only one party or his or her agent should appear, then the justice or alderman shall appoint the referees, who shall be sworn or affirmed justly and truly to assess the damages alleged to have been sustained, or the value of the property in dispute, which they or a majority of them shall have power to assess: Provided, That if both parties or their agents shall not prefer a reference, the justice or alderman shall proceed to hear and determine, and if the sum adjudged does not exceed five dollars and thirty-three cents, the same shall be final and conclusive; and each referee shall be entitled to receive one dollar for every day he shall have attended in each case: Provided, That if the defendant shall, before the trial of the action, (y) make oath or affirmation that the title to lands will() come in question in the said action, then the justice or alderman shall dismiss the same; (a) and in case of such dismissal the costs shall be paid in equal shares by the plaintiff and defendant: Provided always, That if the damages so found by the justice, alderman or referees, shall not amount to more than one dollar, the plaintiff or plaintiffs shall not recover more costs than damages.

134. No action brought before a justice of the peace or alderman shall be referred to referees for trial, unless by agreement, or express assent of both parties to the action, or their agents; which agreement or assent shall be noted by such justice or alderman upon his docket.

135. If any referee appointed under the 3d section of the act to which this is a supplement, or under an act regulating the proceedings of justices of the peace and aldermen in cases of trespass, trover and rent, shall not attend at the time and ees, how supplied. place fixed for hearing the cause, it shall be the duty of the referee or referees

Vacancies in refer

Ibid. § 2.

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.

136. 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 How referees may 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 another time or place, and as often as they may deem proper.

be sworn.

Their powers.

13 Feb. 1816 § 1. 6 Sm. 323.

137. In all actions for the recovery of damages for any trespass, wrong or injury done or committed against real or personal estate, brought before any justice of the peace or alderman of this commonwealth, and referred agreeably power to award as to law, the referees are hereby empowered, in addition to their report of the damages, if any, sustained by the plaintiff, to decide and report also, whether the

Referees to have

to the costs, in trespass.

(r) This jurisdiction is concurrent with that of the common pleas. Clark v. McKisson, 6 S. & R. 87. Moyer v. Illig, 52 P. S. 444. Richards v. Gage, 1 Ash. 192. But the plaintiff is entitled to costs in the common pleas, though he recover less than $100. Devers v. Gosling, 3 Luz. L. Reg. 24.

(s) A devastavit is not a trespass within the meaning of this section. Wilson v. Long, 12 S. & R. 58. So, a justice has no jurisdiction of an action for obstructing the plaintiff's right of way in a private alley. Leary v. Harter, 1 Leg. Gaz. R. 20.

(t) The damage must arise from an actual or immediate injury operating upon the body of the property. Masteller v. Trimbly, 6 Binn. 33. They have no jurisdiction in cases of consequential damage. Herrigas v. McGill, 1 Ash. 152. But their jurisdiction extends to an action of trespass for entering plaintiff's house, and making a noise and disturbance therein, although no actual loss be proved. Hobbs v. Geiss, 13 S. & R. 417-20. Atkinson v. Russman, 13 L. I. 29. Curry v. Gilroy, 3 Phila. 424. But see Brown v. Quinton, 2 Clark 169, contrà.

(u) In trespass to real estate, it need not appear on the record, that the estate was in the county where the action arose. Brown v. Quinton, 2 Clark 169.

Brown v. Fruit, 3 Ibid. 295. Contrà, Pennell v.
Foster, 1 Bro. 355.

(v) justice has jurisdiction of an action against a constable, for selling goods exempt by law. Stamer v. Nass, 3 Gr. 240.

(w) Jurisdiction extended to $300, by act 7 July 1879, supra 35.

(2) If neither party request a reference, he may proceed to a hearing and judgment. Shoemaker v. Barry, 1 S. & R. 234. See infra 134.

(y) See Geiger v. Geiger, 1 Wood. 404.

(z) This affidavit must be positive; it is not sufficient, to swear to the best of the deponent's knowledge and belief. Carpenter v. Koons, Com. Pleas, Phila., 29 September 1849. MS. Unless such affidavit be made, the justice's jurisdiction is not ousted, although it subsequently appear that the title to land will come in question; it is too late, to make the objection, after the case comes into the common pleas by appeal. Lauchner v. Rex, 20 P. S. 464.

(a) This applies to an action for rent, under § 6 of this act, supra 40. Williams v. Smith, 3 Clark 22. On making such affidavit, and tendering a moiety of the costs, the jurisdiction of the justice is completely ousted. Stevens v. Sarver, 29 L. I. 46.

6 Sm. 328.

plaintiff or defendant shall pay the costs of such action, or in what proportion 18 Feb. 1816 § 1. they shall be paid by the plaintiff or defendant respectively, on which report judgment shall be entered, as well for the costs as the damages, and execution shall issue as in other cases; anything in the 2d section of the act, entitled "An act regulating the proceedings of justices of the peace and aldermen in cases of trespass, trover and rent," passed the 22d day of March 1814, or in any other act, to the contrary notwithstanding.

138. Either party shall have the right of appealing to the court of common pleas 22 March 1814 § 8. of the proper county, where the judgment given by the justice or alderman alone 6 Sm. 182. shall exceed five dollars and thirty-three cents, and where judgment given on the When parties may award of referees shall exceed twenty dollars.(b)

appeal.
Ibid. § 4.

139. The process, return thereof, notices, awards, judgments and appeals, and the proceedings of justices, constables, referees and courts, and every proceeding Proceedings to be necessary to carry this act into effect, which is not herein specially provided for, subject to $100 law. shall be made and done, under and according to the provisions and regulations in similar cases, contained in the act, entitled "An act to amend and consolidate with its supplements, the act entitled An act for the recovery of debts and demands not exceeding one hundred dollars, before a justice of the peace, and for the election of constables, and for other purposes." "(c)

Ibid. § 5.

140. Nothing in this act contained shall be construed to extend to actions of ejectment, replevin or slander, actions on real contracts for the sale or conveyance Exceptions from of lands and tenements, actions for damages in personal assault and battery, jurisdiction of wounding and maiming, or to actions for false imprisonment. justices.

XIV. Of the docket.

(1.) Transfer of dockets.

P. L. 12.

boring justice, in

docket is delivered

141. It shall be the duty of every justice of the peace or alderman, in case of his 20 Feb. 1883 § 1. resignation or removal from office, or removal from his proper district or county, and of his legal representatives, in case of the death or absconding, or voluntary or Docket to be decompulsory absence of a justice of the peace or alderman, from his proper place livered to neighof abode, to deliver his docket, together with all the notes, bonds and other papers case of death, resin his or their possession, concerning any judgment or suit entered thereon, to ignation, removal, some neighboring justice or alderman of the district.(d) * * And the justice &c. of the peace or alderman to whom said docket [or transcript] shall be delivered, shall issue process and proceed thereon in the same manner and with like effect as the original justice or alderman might have done: Provided, That in case the Provision, where justice or alderman to whom such docket may be delivered, shall be a party to or justice to whom interested in any suit or judgment therein, such suit or judgment shall be pro- party inceeded in by some other justice of the peace or alderman of the proper county, terested. to whom a transcript shall be furnished, as well as the original docket, if required on the trial: And provided further, That in case any justice of the peace or alderman shall abscond, or depart from the district, without delivering his docket and Provision, where justice absconds or papers to some justice of the peace or alderman as aforesaid, it shall be the duty removes, without of the person in whose possession the same may be left or found, to make a deliv- delivering over his ery thereof as aforesaid, under the penalty of one hundred dollars, to be recovered by any person aggrieved, in manner aforesaid; and in case the said docket and papers shall not be left in the particular charge or custody of any person, it shall be the duty of any disinterested justice of the peace or alderman of the neighborhood, to take possession thereof, wheresoever found; and the like proceedings shall be had upon the suits and judgments contained in the said docket, in these lastmentioned cases, as is hereinbefore provided for when the docket is delivered by the proper justice of the peace or alderman, as before directed.

docket.

Ibid. § 2.

Provision for tem

porary absence

142. In case of the temporary absence of any justice of the peace from his district, it shall be lawful for him, previous to his departure, to deposit his docket,(e) and all papers connected with any judgment rendered by him, with the nearest justice of the peace in the district; who shall be and hereby is of justice. authorized to issue execution or executions on said judgments, in the same form and effect as if such judgment or judgments had been rendered originally by the said nearest justice.

143. Every justice or alderman elected under this act shall, on the expiration 21 June 1889 § 10. of his term of office, deliver over his docket and like papers to the person who

(b) See supra 60, note i. Stewart v. Keemle, 4 S. & R. 72. Ülrick v. Larkey, 6 Ibid. 285. McCloskey v. McConnell, 9 W. 18. Zane v. Johnson, 1 Ash. 42. (c) See Hinds v. Knox, 4 S. & R. 418.

(d) An execution issued by one justice on the transcript of another justice of the same county, who was at the time in commission, and acting in his office, is void; not being allowed by any act of assembly. Hallowell v. Williams, 4 P. S. 339. A justice has no jurisdiction of a cause of action founded on

P. L. 879.

the judgment of another justice, except as prescribed by the statute; he cannot, therefore, set off such judgment against one on his own docket. Kline v. McKee, 46 P. S. 519.

(e) In case of the temporary absence of a justice of the peace, no other justice can issue execution on a judgment rendered by him, unless the docket be deposited with such justice, such execution would be void, and the constable acting under it, a trespasser. Eberle v. Medara, 2 Phila. 284.

21 June 1839 § 10. shall be elected and commissioned to succeed him in said ward, borough or township.(g)

P. L. 379.

21 April 1846 § 6. P. L. 434.

Provision for delivery of dockets

to extend to all

cases of succession

in office.

Ibid. § 4.

dockets to be delivered over.

144. So much of the 10th section of the act of June 21st, 1839, entitled "An act providing for the election of aldermen and justices of the peace," as provides for the delivery of the dockets and papers of an alderman or justice of the peace, to his successor in office, shall be and the same is hereby deemed and construed to extend to all cases of succession in office, whether by death, resignation, removal or otherwise; and in case of the decease of any alderman or justice of the peace, the said delivery shall be made by his legal representative, to the person who is or may be elected and commissioned to succeed him in said ward, borough or township. 145. Every person who has been, is now, or may be a justice of the peace or In case of removal, alderman, and who has removed or shall remove out of the district for which he was, is or may be commissioned, shall, upon demand made by any person, deliver or cause to be delivered his dockets, and all official records connected therewith, to the nearest justice or alderman in his said district; and if any person shall Penalty for refusal. fail, for twenty days, to comply with the provisions of this section, he shall forfeit and pay one hundred dollars, to be recovered by action of debt, for the use of any person who may sue for the same; and shall further be subject to be compelled to deliver such dockets and records, by a decree and attachment against him, which may be made and issued by any court of common pleas, or by any judge thereof in vacation, on application being made therefor by any person. And said court, or any judge thereof, in vacation, shall have power, in the same manner, to enforce a delivery of such dockets and records, against any person in possession of the same, and being about to remove out of the state, without making the delivery thereof hereby required; and the same proceedings as are herein authorized may be had, to compel the delivery of all justices' dockets in the hand of any other person, who has removed or may remove, or be about to remove out of the proper district, where such dockets belong.(h)

Proceedings to compel delivery.

20 April 1850 § 1. P. L. 640.

Proceedings to

(2.) Proceedings to supply lost dockets.

146. In all cases where the dockets of any alderman or justice of the peace shall have been or may hereafter be destroyed or lost, it shall be lawful for any person or persons interested in any action pending or judgment had, and who may supply lost docket. be desirous to have the same supplied, to apply to such alderman or justice, or their successors in office, or to any alderman or justice in any county in which the defendant or defendants in such proceedings may reside, by petition, setting forth the proceedings to be supplied, and verified by affidavit; whereupon the said alderman or justice shall issue a precept in the nature of a writ of summons, which shall be served as in other cases, requiring the defendant in such action or judgment, or his representatives, to appear before such alderman or justice, on a day certain, to be named in said writ, not less than five nor more than eight days from the issuing thereof, and show cause why the prayer of the petitioner should not be granted; and in all cases where the facts set forth in such petition shall be denied, it shall be the duty of said alderman or justice to hear the parties and receive testimony as in other cases, as well his own testimony upon affidavit as the testimony of others; and upon the hearing thereof, if the said alderman or justice shall be of the opinion that the facts alleged in such petition are true, or in case such facts be not denied, he shall order that the said proceedings be supplied, and shall thereupon enter the same upon his docket; which said entries shall have the same force and effect as if the original record had not been lost or destroyed, and either party may have his remedy by appeal or certiorari as in other cases.(i)

21 March 1772 § 1. 1 Sm. 364.

No action to be commenced

against a justice, without thirty days' previous notice.

XV. Of actions against justices.

147. Whereas, justices of the peace may be discouraged in the execution of their office by vexatious actions (k) brought against them, for or by reason of small and involuntary errors in their proceedings: and whereas, it is necessary that they should be (as far as is consistent with justice, and the safety and liberty of the subjects over whom their authority extends) rendered safe in the execution of the said office and trust: and whereas, it is also necessary that the subject should be pro

(g) A justice, whose term has expired, and whose place has been filled by election, has no right to retain his docket, and certify a transcript, to found proceedings before another justice. Koons v. Headley, 49 P. S. 168. Elder v. Thompson, 1 Pears. 194. Singley v. Fisher, 2 Leg. Rec. R. 168.

(h) See Ex parte Baker, 44 P. S. 440. Ex parte Donahey, 24 Pitts. L. J. 9.

(i) So amended by act 11 June 1879. P. L. 151. (k) This act applies to suits before magistrates. Jones v. Hughes, 5 S. & R. 299. And therefore, a notice is necessary in an action brought before a justice of the peace, to recover the penalty for taking

illegal fees. Prior v. Craig, 5 S. & R. 44. Jones v. Hughes, Ibid. 299. Thompson v. Gifford, 12 Ibid. 75. McConahy v. Courtney, 7 W. 491. Bartolett v. Achey, 38 P. S. 273. Collins v. Hunter, 1 Ash. 60. And for the penalty for marrying a minor, without the consent of the parent or guardian. Mitchell v. Cowgill, 4 Binn. 20. Slocum v. Perkins, 3 S. & R. 295. If the suit be brought before a justice, it must appear by his record, that notice was duly given; otherwise, his judgment will be reversed on certiorari. Ashton v. Isard, 2 Phila. 39. The statute, however, has no application to an action on a justice's official bond. Commonwealth v. Frailey, 69 Þ. S. 260.

tected from all wilful and oppressive abuse of the several laws committed to the 21 March 1772 § 1. care and execution of the said justices of the peace: Be it enacted, That no writ shall be sued out against nor any copy of any process, at the suit of a subject, shall be served on any justice of the peace, for anything done by him in the execution of his office, () until notice in writing of such intended writ or process (m) shall have been delivered to him, or left at the usual place of his abode, by the party, or his attorney or agent, (n) who intends to sue or cause the same to be sued out or served, at least thirty days(0) before the suing out or serving the same; in which What such notice notice shall be clearly and explicitly contained the cause of action, (p) which the to contain. said party hath or claimeth to have against such justice of the peace; on the back of which notice shall be indorsed the name of such attorney or agent, (q) together with the place of his abode ;(r) who shall be entitled to the fee of twenty shillings Fees. for the preparing and serving such notice, and no more.(s)