2. The defendant further bases his contention that the court ought to have given binding direction in his favor, upon the alleged facts, that he was a police officer acting under general orders of his superior to arrest any one who attempted to peddle fruit or fish and blow a horn upon the streets of the city after 10 o'clock at night; that shortly after this hour the plaintiff, a huckster, was notified by and promised the defendant to refrain from blowing his horn; that after he had passed from defendant's view plaintiff or some one in his wagon blew the horn again; whereupon the defendant pursued and arrested him for disorderly conduct, and took him to the station-house, where he was detained for a time. On the other hand, plaintiff testified that the notification was given a few minutes before 10 o'clock, and that his horn was not blown afterwards. It is thus seen that, even if it be conceded that plaintiff's blowing of the horn after notification and promise to refrain would have been justifiable cause for his arrest without warrant, and imprisonment, the question whether he committed the act was in dispute, and, therefore, it was the exclusive province of the jury to determine it.

It is argued that, although plaintiff did not commit the act, yet, if defendant had reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinarily prudent man in believing he did, he had probable cause for arresting him and this would be a defense. The learned trial judge so charged the jury, but, under the conflicting evidence as to the occurrences, he would not have been warranted in declaring, as matter of law, that probable cause was conclusively established. When one is arrested without warrant, for an offense of which he is innocent, the burden is cast on the person who made the arrest of proving that he had probable cause to make it: McCarthy v. DeArmit, 99 Pa. 63; McAleer v. Good, 216 Pa. 473. In general what constitutes probable cause is for the court to determine, and in some states of the evidence it is its duty to declare to the jury that it did or did not exist in the

particular case: McCoy v. Kalbach, 242 Pa., 127. In many other conditions of the evidence it is a mixed question, partly for the court and partly for the jury, and this is often so where actual belief is one of the elements involved: Schofield v. Ferrers, 47 Pa. 194. The rule defining the province of the court and jury was thus stated by Judge Henderson in Delany v. Lindsay, 46 Pa. Superior Ct. 26: "The essential element is such a reasonable ground of belief as would cause an ordinarily prudent man to act. Where there is no dispute in relation to the facts or doubt as to the inferences to be drawn therefrom it is for the court to determine whether they constitute probable cause, but where the evidence is contradictory or the facts admit of contrary inferences the jury must say under proper instructions whether there was probable cause.' The nature of the act and its consequences have something to do in the determination of the question whether the defendant had reasonable cause to do what he did. Whether a horn was blown after plaintiff passed into another street and out of defendant's view, whether it was blown by plaintiff, and, if not, whether the direction from which the sound came was in itself such reasonable ground of belief that the plaintiff blew it as to justify the defendant in arresting him, were properly questions for the jury. No particular part of the charge is assigned for error, and, therefore, the court's instructions as to what is necessary to constitute probable cause are not before us for review. Upon the question, and the only question, that is fairly raised by the assignments the court was right in its conclusion.

The assignments of error are overruled and the judgment is affirmed.

Common Pleas--Law,

Urich v. Uhrich.

It is no longer necessary that a magistrate's summons be directed to the constable of the township, ward or district where the defendant resides or the constable next most convenient, as the Act of April 27, 1911, P. L., 86, provides that it may be directed to any constable within the county where the defendant or magistrate resides.

A summons is legally served where a defendant refuses to take a copy of it after it is read to him or where he is given a copy which is taken away from him again by the constable about a half-hour afterwards.

While a justice can not hear a case who has acted as the plaintiff's agent, he will not be disqualified because he sent a notice of the claim to the defendant prior to the suit.

Where a constable who served a summons offers to meet the defendant at a place known to him and drive him to the magistrate's office,

which offer he failed to avail himself of, he cannot on certiorari complain that the summons did not show where the place was that was named as the location of the office.

Where a magistrate enters judgment "in default" for the plaintiff for the amount of the claim, having previously stated that "Deft. failed to appear", the record is not defective because it fails to say that the judgment is against the defendant.

Assignments of general error are insufficient on certiorari under Common Pleas Rule X, Sec. 3.

Rule X, of the Common Pleas, page 17, declares that, "in all cases of certiorari, the particular exceptions intended to be insisted upon must be filed on or before the first day of the term next after that to which the writ is returned, and, in default thereof, the judgment shall be affirmed as of course. Assignments of general errors shall be considered insufficient."

Then

The return of the Constable, regularly affirmed to, shows that he served the summons on the defendant "by handing a true and attested copy of the original summons to him personally." follow the other methods of service prescribed by the Act of 1901, not crossed but with the blanks not filled out. Now. over, as they perhaps should have been, what was done by the Constable in pursuance of his writ? The defendant testified that the Constable came to the store of Watt & Shand, in this city, and gave him a copy of the writ; that he had it in his possession about half an hour, when the Constable came back again, asked for it, and took it away. The Constable says he read the summons to the defendant and handed it to

Chas. E. Workman for certiorari. H. Frank Eshleman, contra. March 20, 1915. Opinion by LANDIS, P. J.

On September 29, 1914, a summons was issued by a Justice of the Peace, returnable on October 5, 1914, in which P. A. Urich was the plaintiff and S. K. Uhrich the defendant. The plaintiff's claim was for $15.00, rent alleged to be due for the month of March, 1914. A hearing was duly had, at which the plaintiff appeared and was sworn to his account. The defendant did not appear. Judgment was entered by the Justice by default "for 15$ and int. &

it, and said, "I do not want anything to do with it." In either event, we think he was legally served with a copy of the writ, and, outside of the fact that the first and second exceptions are too general, we think there is no real merit in them. The variance on the Justice's docket does not affect the situation, as the return of the Constable itself accompanies the proceedings returned.

The defendant's brief states that "The third and fourth exceptions cannot be sustained." sustained." I suppose this is a typewriting error, and I will so treat it. It appears that the defendant's home is in Manor Township. While the record does not state the township of the Justice, so far as these reasons are con

cerned, this is of no importance. Under the Act of March 20, 1810, P. L. 208, section 2, it was provided that the summons should be "directed to the Constable of the township, ward or district, where the defendant usually resided, or can be found, or to the next Constable most convenient to the defendant." It was held by us, in Smith v. Miller, 20 Lanc. Law Review, 116, and in subsequent cases, that these provisions of the statute were mandatory. However that may have been under the Act of 1810, it was changed by the Act of April 27, 1911, P. L. 86, wherein it was enacted that, from and after the passage of that Act, any summons issued "may be directed to and served by any Constable of the county within which the defendant and said Alderman or Justice of the Peace reside." There is a proviso in this latter Act which directs that the costs of service of said Constable shall not exceed what the costs of service would have been if the summons had been directed to and served by the Constable of the township, ward or district where the defendant usually resides or can be found, or by the next Constable most convenient; but this proviso does not qualify the right of any Constable in the county to now serve the writ. In Sick v. McGuire, 11 Justices' Law Reports, 34, the judgment was questioned on the ground that the summons was directed to and served by a Constable who was not of the township where the defendant resided. It was held that, under the Act of 1911, it could be directed to and served by any Constable; but that the Justice could not permit the Constable to collect costs in excess of what they would have been if the summons had been served by the Constable of the township in which the defendant

resided.

Of course, a Justice cannot be the agent of the plaintiff and at the same time act in his official capacity. But in Brubaker v. Sheibley, 19 Lanc. Law Review. 241, this Court held that, because the Alderman sent a notice to the defendant prior to the commencement of the suit, the defendant cannot justly complain, for he was given an oppor

tunity to pay. To the same effect are: Sample v. Shidel, 15 Lanc. Law Review, 167; Myers v. Miller, 9 Justices' Law Reports, 67. The letter sent in this case by the Justice is not attached to the depositions; but the Justice testified that he never was the agent of the plaintiff, and there has been no evidence to the contrary produced. We, therefore, see no merit in this exception.

The fifth exception complains that the location of the office of the Justice, where the hearing was to be held, was not sufficiently plain. The summons states the hearing was to be held at Run Valley, Lancaster County. The defendant does not assert that he made any effort to find the location of this place, and, on the other hand, admits that the Constable offered to meet him at Hildebrand's Hotel, the location of which he seemed to be familiar with, and drive him to the Justice's office, provided he would telephone that he was coming. He did not telephone, and it comes with poor grace at this time to ask us to set aside the proceedings on such a ground. A location was fixed in the summons, and it was his duty to find out where it was, and be present, if he desired to make a defense.

The sixth exception is to the effect. that the transcript fails to show that judgment was entered against the defendant. It will be seen that the plaintiff had sued the defendant for $15,00 rent. The claim was duly proven by the plaintiff, and thereupon the Justice, after stating these facts, made the additional entry in his docket: "Hence judgment is hereby given in favor of said P. A. Urich, pl., for 15$ and int. & accrued costs. costs. Judgment in default." He had previously stated that "Deft. failed to appear." We have been referred to no cases which hold that such a record is not a judgment against the defendant. Nor can we see how such a position. could be fairly maintained. The controversy was between the plaintiff and the defendant. If the judgment was in favor of the plaintiff, it follows of necessity that it must have been against the defendant. Mere informality in the entry of judgment by a Justice of the