P. L. 264. authorized to apprehend, arrest and immediately take any person who may be 22 May 1889 § 10. guilty of the violations of any of the provisions or sections of this act before any justice of the peace, magistrate or any other legally constituted authority, and Officers may make thereupon make charge of such violation of the law or any of the provisions arrests. thereof, and the magistrate shall forthwith hear and determine the charge and Hearing of render judgment accordingly, with the right of certiorari or appeal as in all charges. similar cases of arrest and conviction, and in case of any failure of any fish com- Appeal. missioner, warden or any other officer named above to prove his case the county Costs. in which it is heard shall pay the costs. Ibid. § 11. 63. The fines imposed under any section of this act shall be paid to the treasurer of the county in which the prosecution shall be made, and the said treasurers Application of of the several counties of the state shall pay over to the commissioners of fisheries fines. all moneys forfeited and recovered by them by virtue of this act, and the said commissioners shall pay over the same to the treasurer of the state. 64. No section, proviso or part of this act shall be considered as valid or operative only operative until the legislature of New Jersey shall approve of the same by enacting a similar act in whole or in part. 65. All sections, provisos or acts inconsistent with this act are hereby repealed. XI. In Lake Erie. Ibid. § 12. Act to become when a similar act is passed in New Jersey. Repealing clause. 20 May 1891. P. L. 92. hibited in Lake 66. From and after the passage of this act, it shall not be lawful for any person or persons to place any set-net or set-nets, fish-baskets, pond-nets, gill-nets, eel-weirs, kiddles, brush or fascine-nets, fyke-nets, or any other net or nets of whatever de- Fishing with nets scription or nature, or any other permanent set means of taking fish, or otherwise and certain other in the nature of seines, in any of the waters of Lake Erie, within the jurisdiction of appliances prothis commonwealth, within any bay, or within two miles from the entrance of any Erie. bay, or within one-half mile from the mouth of any stream, commonly known as and called creeks, flowing into said lake; nor shall any person make use of any device or appliance whatever for the purpose of taking, catching or killing fish within the above-mentioned limits, or in the creeks flowing into said lake, save only Catching black with rod, hook and line; nor shall it be lawful for any person or persons to catch bass weighing less or take by means of nets or seines of whatever kind, any black bass weighing less than one-half pound prohibited. than one and one-half pounds, within one mile from shore. Any person violating the provisions of this section shall, upon conviction thereof, be liable to a penalty Penalty. not exceeding one hundred dollars for each and every offence.(x) 22 May 1889 § 2. 67. Any person or persons catching or selling any food fish, caught in the waters P. L. 270. of Lake Erie, within the jurisdiction of the commonwealth, for the purpose of Catching or selling making compost or any other fertilizing mixture, shall be guilty of a misdemeanor, food fish for and upon conviction thereof shall be liable to a penalty not exceeding one hundred demeanor. dollars for each and every offence. Penalty. compost a mis Ibid. § 3. 68. Any fish commissioner, fish-warden, deputy warden, sheriff, deputy sheriff, constable, policeman or any special officer of this commonwealth, is hereby author- Duties of fish ized to destroy any fish-basket, eel-weir, fyke-net, pound-net, shore-net, drift-net, commissioner dip-net, wing-wall or wing-walls, or any illegal devices named in any section of this and other officers. act; and they are hereby authorized to arrest, forthwith, any person placing, erect- To arrest ing, using or fastening them contrary to the provisions of this act. Any person or persons interfering with any of the above officers in the discharge of their duties, or fering with resisting arrest, shall pay a fine of one hundred dollars or be imprisoned three months officers. in the county jail, or shall be subject to both penalties at the discretion of the magistrate or court before which he or they shall be convicted. 69. Any fish commissioner, fish-warden, deputy fish-warden, sheriff, deputy offenders. Penalty for inter Ibid. § 4. ing of offenders. sheriff, constable, policeman or special officer of this commonwealth, is hereby Arrest and hearauthorized to apprehend, arrest and immediately take any person who may be guilty of the violation of any of the provisions or sections of this act before any justice of the peace, magistrate or other legally constituted authority, and thereupon make charge of such violation of the law or any of the provisions thereof; and the magistrate shall forthwith hear and determine the charge and render judgment accordingly, with the right of certiorari or appeal as in all similar cases Appeal. of arrest and conviction; and in case of any failure of any fish commissioner, warden, or any other officer named above, to prove his case the county in which it is Costs. heard shall pay the costs. Ibid. § 5. Application of 70. One-half of the fines imposed under any section of this act shall be for the benefit of the prosecutor, and the other half shall be paid to the treasurer of the county in which the prosecution shall be made, and the said treasurer of the county s shall pay over to the commissioners of fisheries of Pennsylvania, all moneys forfeited and recovered by them by virtue of this act, and the said commissioners shall pay over the same into the state treasury. 71. Nothing in this act shall be so construed as to prevent the catching of bait fish other than game fish by means of hand-nets for angling or scientific purposes. 72. All acts or parts of acts inconsistent with this act are hereby repealed. (z) This is an amendment of § 1 of the act 22 May 1889, P. I.. 270. Ibid. § 6. Catching fish for bait or scientific purposes allowed. Ibid. § 7. Repealing clause. 3 June 1878 § 21. P. L. 163. XII. Fishing in private ponds. 73. Any person trespassing on any lands, for the purpose of taking fish from any private pond, stream or spring, after public notice on the part of the owner or occupant thereof, such notice being posted adjacent to such pond, stream or Penalty for trespassing in private spring, shall be deemed guilty of trespass, and in addition to damages recoverable ponds. by law, shall be liable to the owner, lessee or occupant, in a penalty of one hundred dollars for every such offence: Provided, however, This section shall apply only to such ponds, streams or springs as shall be used or improved by the owners or lessees for the propagation of fish or game fish. 28 April 1878 § 11. P. L. 890. How dams to be constructed. 28 April 1878 § 4. P. L. 887. XIII. Dams. 74. It shall be the duty of any person or persons, or corporations, hereafter erecting or constructing any dam or dams in any of the rivers of this commonwealth, or their tributaries, accessible to shad or other migratory fishes, to put in or upon the same suitable fish-ways or ladders, under the direction and approval of the said fishery commissioners; without which every such dam shall be deemed a public nuisance, and liable to be abated upon the information of any one complaining. 75. It shall not be lawful to fish with nets, or any other method of entrapping fish, except with hook and line, within half a mile of any part of any dam or its Penalty for fishing Schute, in which there is, or may hereafter be, any schute or fish-ladder for naviganear dams contain- tion, or for the purpose of the passage of fish up or down any stream in this coming schutes. monwealth; and any person or persons so offending shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine not exceeding one hundred dollars, at the discretion of the court. 24 May 1871 § 7. P. L. 277. Poisoning fish. 8 May 1876 §1. P. L. 146. Tanks for coal dirt, &c., to be prepared. Penalty. Ibid. § 2. Constables' costs to be charges on the county. When to abide event of suit. XIV. Pollution of water. 76. No person shall place in any fresh-water stream, lake or pond, without the consent of the owner, or in shore-waters and estuaries, with the rivers debouching into them, any lime or other deleterious substance, with the intent to injure fish, or any drug or medicated bait, with intent thereby to poison or catch fish, nor place in a pond or lake, stocked and inhabited by trout or black-bass, any drug or other deleterious substance, with intent to destroy such trout or bass, nor place in any fresh-water pond or stream, stocked with brook-trout, any pike, pickerel, black-bass or rock-bass or other piscivorous fish (salmon excepted), without the consent of the owner or owners of such lands upon which such pond or stream is situated; any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and shall, in addition thereto, and in addition to any damage he may have done, be liable to a penalty of one hundred dollars. 77. All persons engaged in any of the manufacturing interests of this state, accustomed to the washing of iron and other ores, and of coal preparatory to its use for coking, or in the tanning of hides by process in which vitriol is used, shall prepare a tank or other suitable receptacle into which the culm or coal dirt, the offal, refuse, and the tan bark, and the liquor or the water therefrom, may be collected, so that the sediment therefrom, so far as is practicable, may be thereby prevented from passing into or upon any of the rivers, lakes, ponds or streams of the commonwealth, under a penalty of fifty dollars for each offence, in addition to liability for all damage he or they may have done to any individual owners or lessees on such waters.(y) 78. Whenever any constable or other officer making complaint, in good faith, of the violation of any of the provisions of this act, shall fail to recover the penalty or penalties mentioned in the seventeenth section of the act to which this is a supplement, in any prosecution or suit commenced by such constable or other officer, pursuant to the foregoing section of this or the act to which this is a supplement, the costs of suit recovered by him or them shall be a charge upon the proper county, and shall be allowed as other county charges are audited and allowed; and whenever the plaintiff or prosecutor is a private citizen, the costs shall abide the events of the suit or prosecution and be paid as in other cases.(z) FORCIBLE ENTRY. See CRIMES. FOREIGN ADMINISTRATORS. See DECEDENTS' ESTATES. (y) This is an amendment of the act 1 May 1873, § 17, P. L. 19. FOREIGN ATTACHMENT. 1. OF THE WRIT OF FOREIGN ATTACH MENT. 1. Form of writ of foreign attachment. 2. Against whom it may be issued. 3. May issue against foreign corporations. 4. To contain clause of summons to garnishee. 5. Carriers not to be made garnishees with re spect to goods in transitu. 6. Attachments may issue in actions of tort. 7. Affidavit to be previously filed. 8. Subsequent proceedings. 9. To be in addition to other remedies. 10. Foreign attachment allowed in equity. 11. Execution of writ. 12. Proceedings on default. 24. Court to grant rule to answer, &c. 25. On refusal to answer, judgment may be entered against garnishee. 26. How jury to find, on issue joined. 27. Garnishee to recover counsel fees in certain cases. 28. Garnishee entitled to counsel fee where he is found to have no property of defendant. 29. Garnishee entitled to counsel fee on discontinuance before answer. 30. Garnishee to be deemed a party to the cause. VI. OF THE EXECUTION. 31. Execution to issue against the goods, &c., attached. 32. On neglect to produce the same, to be levied of the goods of the garnishee. 33. Plaintiff to give recognizance to restore, on disproof of the debt, &c. 34. When execution may issue, without security to restore. VII. OF DISSOLVING THE ATTACHMENT. 35. How attachment may be dissolved. 36. Condition of recognizance. 37. Dissolution not to affect title to property sold. VIII. PROCEEDINGS ON ATTACHMENT OF 39. Rents to be sequestered. 40. Court may direct sheriff to collect rents. 42. How execution to issue against such rents. 44. Plaintiff may have estrepement to stay waste. IX. PROCEEDINGS WHERE ONE OF SEVERAL 46. Proceedings on such writ. 48. Powers of the court, as to the execution. 49. Verdict for defendant summoned, to dissolve the attachment, unless writ of error be sued out within a year and a day. I. Of the writ of foreign attachment. 13 June 1886 § 48. 1. The writ of foreign attachment shall be made in the following form, viz. : [L. S.] County, ss. The Commonwealth of Pennsylvania: To the sheriff of P. L. 580. said county, greeting: We command you that you attach late of your county, by Form of writ of all and singular his goods and chattels, lands and tenements, in whose hands or posses- foreign attachsion soever the same may be, so that he be and appear before our court ofto be holden at next, there to answer have day of in and for the said county, on the you then and there this writ; Witness, &c. ment. Ibid. § 44. Against whom it 2. A writ of attachment, in the form aforesaid, may be issued against the real or personal estate(a) of any person not residing within this commonwealth, (b) may be issued. A (a) As to what may be attached, see tit. "Execution," 32, note c. It does not lie for a tort. Jacoby V. Gogell, 5 S. & R. 450. Porter v. Hildebrand, 14 P. S. 129. Boyer v. Bullard, 102 Ibid. 555. (But see infra 6-9.) And only for a debt presently demandable. McCullough v. Grishobber, 4 W. & S. 202. claim for general average is such debt. Morris v. Turner, 3 Clark 423. It lies for such damages resulting from a breach of contract, as may be reduced to certainty by a definite standard, but not where they are speculative or unliquidated. Carland v. Cunningham, 37 P. S. 228. Hanson v. Watson, 13 W. N. C. 534. Sims v. Stribler, Ibid. 92. Marr v. Cook, 1 Del. Co. R. 157. It lies in account-render. Strock v. Little, 45 P. S. 416. But not against the representative of a decedent, for a debt of the latter. Williamson v. Beck, 8 Phila. 269. (b) See Barnet's Case, 1 Dall. 153; Taylor v. Knox, Ibid. 158; Lyle v. Foreman, Ibid. 480; Pringle v. Black, 2 Ibid. 97; Kennedy v. Baillie, 3 Y. 55; Nailor v. French, 4 Ibid. 241; Shipman v. Woodbury, 2 M. 67; King v. Cooper, Ibid. 176; Thurneyssen v. Voutheir, 1 Ibid. 422. Bainbridge v. Alderson, 2 Bro. 51; Redwood v. Consequa, Ibid. 62; Fitch v. Ross, 4 S. & R. 564; Malone v. Lindley, 1 Phila. 192; Burch v. Taylor, Ibid. 224, for who are liable to a foreign attachment. 18 June 1836 § 44. and not being within the county in which such writ shall issue, at the time of the issuing thereof. (c) P. L. 550. Ibid. § 76. Ibid. § 45. of summons to garnishees. 3. A writ of attachment, in the form aforesaid, may be issued against any foreign corporation, (d) aggregate or sole, and the proceedings aforesaid may be had thereon, so far as the case will permit.(e) 4. In every writ of attachment as aforesaid shall be contained a clause, comTo contain clause manding the officer to summon all persons (g) in whose hands or possession the said goods and chattels, or any of them, may be attached, so that they and every of them be and appear before the said court, at the day and place mentioned in the said writ, to answer what shall be objected against them, and abide the judgment of the court therein. 12 April 1855 § 1. P. L. 213. 5. No person or company engaged in the business of forwarding or transporting goods, wares and merchandise shall be made liable in any proceedings in Carriers not to be attachment, as garnishee or otherwise, when such goods, wares or merchandise are in transitu, and at the time of service of process, beyond the limits of this commonwealth, without default, collusion or fraud on the part of such person or company.(h) made garnishees with respect to goods in transitu. 15 May 1874 § 1. P. L. 183. Attachments may issue in actions of tort. Ibid. § 2. 6. That the 44th section of an act relating to the commencement of actions, approved the 13th day of June, Anno Domini 1836, be so amended as to allow the issuing of the writ of foreign attachment, prescribed by the 43d section of said act, in all cases wherein any person who, being a resident of this commonwealth, shall have removed therefrom, after having become liable in an action ex delicto. 7. But no such writ shall be issued in the cases provided by this supplement, Affidavit to be pre-except upon oath or affirmation, previously made by the person having such right viously filed. of action ex delicto, or by some one in his behalf, of the truth of the claim and of the facts upon which such attachment shall be founded, as well as that he verily believes that the person has removed to escape service of process to answer for such alleged tort; which oath or affirmation shall be filed of record. Ibid. § 3. Subsequent proceedings. Ibid. § 4. 23 May 1887 § 1. P. L. 163. 8. All the proceedings subsequent to the issue of such writ of foreign attachment in the cases aforesaid, shall be the same as those provided by the act to which this is a supplement, and the various supplements thereto. 9. The remedy provided by this supplement shall be in addition to all other remedies provided by law in actions ex delicto. 10. In any case in which a bill in equity(i) may hereafter be filed against a defendant or defendants, not residing in the state of Pennsylvania, in which there Allowed in equity. shall be included a prayer of a decree for the payment of money, it shall be lawful for the plaintiff to cause a writ of foreign attachment to be issued against the real or personal estate of such defendant or defendants, in the following form: County, ss. Form of writ. The Commonwealth of Pennsylvania. To the sheriff of said county, greeting: We command you that you attach late of your county, by all and singular his goods and chattels, lands and tenements, in whose hands or possession soever the same may be, so that he be and appear before our court of to be holden at in and for the said county, on the — day of next, there to answer the allegation of a bill in equity filed in the court of common pleas of said county. (c) If the debtor be actually dwelling in the county, though not an inhabitant, his effects are not liable to a foreign attachment. Bainbridge v. Alderson, 2 Bro. 51. And see Maule v. Cooper, 1 W. N. C. 109. It does not lie against an absconding debtor. Scott v. Hilgert, 14 W. N. C. 305. And a debtor does not become a non-resident, so as to subject him to a foreign attachment, by leaving his place of abode in this state, and going to another state to seek a new residence; he continues a resident of this state, until he has obtained another place of abode, with the intention of remaining in it. Pfoutz v. Comford, 36 P. S. 420. Fuller v. Bryan, 20 Ibid. 144. Hentz v. Azahl, 1 W. N. C. 282. Reed's Appeal, 71 P. S. 378. The fact of the defendant's residence within the state, can only be pleaded in abatement, if at all. Lindsley v. Malone, 23 P. S. 24. See Chase v. Ninth National Bank of New York, 56 Ibid. 355. But on a motion to dissolve, the burden of proving non-residence is on the attaching-creditor. Scott v. Hilgert, 14 W. N. C. 30.5. The writ will be quashed where it is shown that the defendant was within the jurisdiction at the time the writ was issued; and this, though the sheriff has returned "non est inventus as to the defendant. Kauffman v. Musin, 9 C. C. 414. (d) By this is meant a corporation chartered by another state. Harley v. Charleston Steam-Packet Co., 2 M. 249. Bushel v. Commonwealth Insurance Co., 15 S. & R. 173. And see Chase v. Ninth National (e) The stock of a foreign corporation cannot be attached. Christmas v. Biddle, 13 P. S. 223. The forfeiture of the defendant's charter, by a judicial decree, would dissolve an attachment against a corporation. Farmers' and Mechanics' Bank v. Little, 8 W. & S. 207. (g) A municipal corporation cannot be made garnishee. Erie v. Knapp, 29 P. S. 173. Keeley v. Murray, 1 T. & H. Pr. § 1187. Nor a foreign corporation. Barron v. Morrison, 2 Ibid. § 2258. Maylert v. White, 5 W. N. C. 342. Christmas v. Biddle, 13 P. S. 223. But the plaintiff may attach money in his own hands. Graighle v. Notnagle, Pet. C. C. 245. The 47th and 52d sections of this act, which provided for a clause of capias against the garnishee, are repealed by the act to abolish imprisonment for debt. (h) See Pennsylvania Railroad Co. v. Pennock, 51 P. S. 244. (i) The attachment will not be dissolved on the filing of a formal answer. Stewart v. Parnell, 46 L. I. 128. 11. Which writ shall be executed by the sheriff in the manner prescribed by law 23 May 1887 §1. for the service of writs of foreign attachment. P. L. 163. 12. In case the defendant or defendants, against whose property an attachment Execution. has been issued as aforesaid, shall not appear and answer the allegations of the Ibid. § 2. bill, at or before the first Monday of the third term next ensuing after the issuing Proceedings on deof said attachment, then and in such case the plaintiff shall be at liberty to have fault. a decree pro confesso entered against said defendant or defendants, and, thereafter, to proceed upon the decree so entered pro confesso by scire facias against the garnishee or garnishees, in the same manner as proceedings begun by foreign attachment in actions at law. II. Attachment of interest in decedents' estates. 13. All legacies given, and lands devised, to any person or persons, by will or 27 July 1842 § 1. testament, and any interest which any person or persons may have in the real or P. L. 436. personal estate of any decedent, whether by will or otherwise, or so much thereof Legacies, distribuas may be necessary to satisfy the demand and costs of claimant, shall be subject tive shares, &c., and liable to be attached(k) by any creditor or creditors of such person or persons, may be attached. by writ or writs of foreign attachment, in the hands or possession of the executor or administrator,() or in whose hands or possession soever the same may be, as fully and effectually as in other cases; and the like proceedings shall be had as are prescribed in the several acts of this commonwealth, regulating the proceedings in actions of foreign attachment: Provided, That the provisions of this act shall Except those of not extend to legacies and distributive shares due married women.(m) married women. Plaintiff to give 14. In all cases where any legacy, devise of land, or any interest which any Ibid. § 2. debtor may have in the estate of any decedent, whether by will or otherwise, is or are attached, or may be hereafter attached, in the hands of the executor or refunding bond to administrator, or in whosesoever hands or possession the same may be,(n) by writ executor, &c. or writs of foreign attachment, it shall be the duty of the plaintiff in such action, in addition to the recognizance and securities now required by law, to be given in actions of foreign attachment, to tender to the garnishee or garnishees, if he or they be executors or administrators, before receiving the distributive share of such debts, or so much thereof as may be necessary to satisfy the debt and interest, and costs, a bond, with sufficient security, to be approved by the court, in double the amount to be received from such garnishee, with like conditions as are prescribed in the 41st section of the act, entitled "An act relating to executors and administrators," passed the 24th day of February, A.D. 1834;(0) and the said executor, administrator or other person in whose hands the legacy, devise of land or other interest due such debtor may be attached, shall be liable to the same penalties, and to be proceeded against as garnishees in foreign attachment are now by law subject to: Provided, however, That nothing in this act shall be construed to confer on the plaintiff in such action, any greater rights or benefits than the debtor would have been entitled to, but the same rights which the debtor has, and no more, is (are) hereby conferred on the attaching creditor. III. Of the service of the attachment. (p) P. L. 580. 15. In the case of personal property, the attachment shall be executed as fol- 18 June 1836 § 48. lows, to wit: The officer to whom such writ shall be directed, shall go to the person in whose How attachment hands or possession the defendant's goods or effects are supposed to be, and then executed on perand there declare, in the presence of one or more credible persons of the neighbor- property. hood, that he attaches the said goods or effects.(q) 16. In the case of real estate, the attachment shall be executed as follows:(r) (k) A legacy or distributive share may be attached, under this act, in the hands of executors, before a settlement of the estate of the decedent. Sinnickson v. Painter, 32 P. S. 384. Lorenz v. King, 38 Ibid. 93. (1) A legacy cannot be attached in the hands of an executor appointed by the will, who has never taken out letters. Williams's Estate, 1 Leg. Gaz. 67. (m) This provision as to legacies due married women is repealed by the act 11 April 1848. Evans v. Cleary, 23 W. N. C. 509. (n) As, the executor's agent, who has received the defendant's share of the proceeds of real estate. Gochenaur v. Hostetter, 18 P. S. 414. And where no letters are taken out, a legacy to the widow, charged on land, may be attached in her hands, as widow, she being in possession of the lands under a life-estate therein. Williams's Estate, 1 Leg. Gaz. 67. (0) That is," that if any debt or demand shall afterwards be recovered against the estate of the decedent, or otherwise be duly made to appear, he will refund the ratable part of such debt or demand, and of the costs and charges attending the recovery of the same. See tit. "Decedents' Estates." sonal Ibid. § 49. (p) The writ of foreign attachment may issue within ten days of the return-day. Warner's Appeal, 13 W. N. C. 505. (q) If such declaration be not made, the service will be quashed. Hunter v. Clark, 16 W. N. C. 558. He must seize the goods and take them into his possession, if susceptible of seizure or manual occupation. Morgan v. Watmough, 5 Wh. 125. Connell v. Godfrey, 22 Pitts. L.J. 136. But the seizure of part of a thing, will bind the whole, when it comes to hand. Pennsylvania Railroad Co. v. Pennock, 51 P. S. 244. Jaffray's Appeal, 13 W. N. C. 151. See infra 18. And he may require an indemnity, before seizing the goods, where the defendant's property in them is disputed; he cannot, by serving a copy of the writ, escape the risks of the attachment, and throw them upon the garnishee, by requiring him to retain the goods, where the title to them is in dispute. Shriver v. Harbaugh, 37 P. S. 399. It is his duty to make return of the mode in which the writ has been served. Lambert v. Challis, 35 P. S. 156 n. (r) A leasehold cannot be attached as personal property. Vandergrift's Appeal, 83 P. S. 126. |