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The defendant further bases his particular case: McCoy v. Kalbach, 242 contention that the court ought to have Pa., 127. In many other conditions of given binding direction in his favor, the evidence it is a mixed question, upon the alleged facts, that he was a partly for the court and partly for the police officer acting under general or- jury, and this is often so where actual ders of his superior to arrest any one belief is one of the elements involved: who attempted to peddle fruit or fish Schofield v. Ferrers, 47 Pa. 194. The and blow a horn upon the streets of the rule defining the province of the court city after 10 o'clock at night; that short- and jury was thus stated by Judge Henly after this hour the plaintiff, a huck- derson in Delany v. Lindsay, 46 Pa. ster, was notified by and promised the Superior Ct. 26: "The essential element defendant to refrain from blowing his is such a reasonable ground of belief as horn; that after he had passed from de- would cause an ordinarily prudent man fendant's view plaintiff or some one in to act. Where there is no dispute in his wagon blew the horn again; where- relation to the facts or doubt as to the upon the defendant pursued and arrested inferences to be drawn therefrom it is him for disorderly conduct, and took for the court to determine whether they him to the station-house, where he was constitute probable cause, but where the detained for a time. On the other hand, evidence is contradictory or the facts plaintiff testified that the notification was admit of contrary inferences the jury given a few minutes before 10 o'clock, must say under proper instructions and that his horn was not blown after- whether there was probable cause.” The wards. It is thus seen that, even if it nature of the act and its consequences be conceded that plaintiff's blowing of have something to do in the determinathe horn after notification and promise tion of the question whether the defento refrain would have been justifiable dant had reasonable cause to do what cause for his arrest without warrant, he did. Whether a horn was blown and imprisonment, the question whether after plaintiff passed into another street he committed the act was in dispute, and out of defendant's view, whether and, therefore, it was the exclusive pro- it was blown by plaintiff, and, if not, vince of the jury to determine it. whether the direction from which the
It is argued that, although plaintiff sound came was in itself such reasondid not commit the act, yet, if defendant able ground of belief that the plaintiff had reasonable ground of suspicion sup- blew it as to justify the defendant in ported by circumstances sufficient to arresting him, were properly questions warrant an ordinarily prudent man in for the jury. No particular part of the believing he did, he had probable cause charge is assigned for error, and, therefor arresting him and this would be a fore, the court's instructions as to what defense. The learned trial judge so is necessary to constitute probable cause charged the jury, but, under the conflict- are not before us for review. Upon the ing evidence as to the occurrences, he question, and the only question, that is would not have been warranted in de fairly raised by the assignments the claring, as matter of law, that probable court was right in its conclusion. was conclusively established.
The assignments of error are overWhen one is arrested without warrant, ruled and the judgment is affirmed. 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
Common pleas-- Law.
accrued costs.” On October 24, 1914, this writ of certiorari was issued, and seven exceptions were subsequently filed,
alleging fatal defects in the proceedings Uricb v. Uhrich.
of the Justice. Some of these excepJustice of the Peace-Service of Sum- tions, at least, are general, and ought
mons— Judgment-Certiorari-Excep- not to be considered; for Section 3, of tions-Notice of Claim before Suit. Rule X, of the Common Pleas, page 17,
declares that, “in all cases of certiorari, It is no longer necessary that a magistrate's summons be directed to the constable of the the particular exceptions intended to be township, ward or district where the defend- insisted upon must be filed on or before ant resides or the constable next most con- the first day of the term next after that venient, as the Act of April 27, 1911, P. L., to which the writ is returned, and, in 86, provides that it may be directed to any constable within the county where the defend
default thereof, the judgment shall be ant or magistrate resides.
affirmed as of course. Assignments of A summons is legally served where a de general errors shall be considered infendant refuses to take a copy of it after it is sufficient." read to him or where he is given a copy which is taken away from him again by the
The return of the Constable, regularconstable about a half-hour afterwards. ly affirmed to, shows that he served the
While a justice can not hear a case who summons on the defendant “by handing has acted as the plaintiff's agent, he will not be disqualified because he sent a notice of the
a true and attested copy of the original claim to the defendant prior to the suit.
summons to him personally.” Then Where a constable who served a summons
follow the other methods of service preoffers to meet the defendant at a place known scribed by the Act of 1901, not crossed to him and drive him to the magistrate's office, which offer he failed to avail himself of, he but with the blanks not filled out. Now,
over, as they perhaps should have been. cannot on certiorari complain that the summons did not show where the place was that what was done by the Constable in purwas named as the location of the office.
suance of his writ? The defendant tesWhere a magistrate enters judgment "in
tified that the Constable came to the default for the plaintiff for the amount of the claim, having previously stated that "Deft. store of Watt & Shand, in this city, and failed to appear", the record is not defective gave him a copy of the writ; that he because it fails to say that the judgment is had it in his possession about half an against the defendant.
hour, when the Constable came back Assignments of general error are insufficient on certiorari under Common Pleas Rule X,
again, asked for it, and took it away.
The Constable says he read the sumCertiorari, C. P. of Lancaster county. him, but the defendant refused to take
mons to the defendant and handed it to November Term 1914. No. 28.
it, and said, "I do not want anything Chas. E. Workman for certiorari. to do with it." In either event, we H. Frank Eshleman, contra.
think he was legally served with a copy
of the writ, and, outside of the fact that March 20, 1915. Opinion by LANDIS, the first and second exceptions are too P. J.
general, we think there is no real merit On September 29, 1914, a summons
in them. The variance on the Justice's was issued by a Justice of the Peace, docket does not affect the situation, as returnable on October 5, 1914, in which
the return of the Constable itself accomP. A. Urich was the plaintiff and S. K. panies the proceedings returned. Uhrich the defendant. The plaintiff's The defendant's brief states that “The claim was for $15.00, rent alleged to be third and fourth exceptions cannot be due for the month of March, 1914. A A sustained." I suppose this is a typehearing was duly had, at which the writing error, and I will so treat it. It plaintiff appeared and was sworn to his appears that the defendant's home is in account. The defendant did not ap- Manor Township. While the record pear..
Judgment was entered by the does not state the township of the JusJustice by default “ for 15$ and int. & tice, so far as these reasons are con
cerned, this is of no importance. Under | tunity to pay. To the same effect are: the Act of March 20, 1810, P. L. 208, Sample v. Shidel, 15 Lanc. Law Review, section 2, it was provided that the sum- 167; Myers v. Miller, 9 Justices’ Law mons should be “directed to the Con- | Reports, 67. The letter sent in this case stable of the township, ward or district, i by the Justice is not attached to the dewhere the defendant usually resided, or positions; but the Justice testified that can be found, or to the next Constable he never was the agent of the plaintiff, most convenient to the defendant.” It was and there has been no evidence to the held by us, in Smith v. Miller, 20 Lanc. contrary pro luced. We, therefore, see Law Review, 116, and in subsequent cases, no merit in this exception. that these provisions of the statute were The fifth exception complains that the mandatory. However that may have location of the office of the Justice, been under the Act of 1810, it was where the hearing was to be held, was change 1 by the Act of April 27, 1911, not sufficiently plain. The summons P. L. 86, wherein it was enacted that, states the hearing was to be held at Run from and after the passage of that Act, Valley, Lancaster County. The defenany summons issued “may be directed dant does not assert that he made any to and served by any Constable of the effort to find the location of this place, county within which the defendant and and, on the other hand, admits that the said Alderman or Justice of the Peace Constable offered to meet him at Hildereside.” There is a proviso in this lat- brand's Hotel, the location of which he ter Act which directs that the costs of seemed to be familiar with, and drive service of said Constable shall not ex- him to the Justice's office, provided he ceed what the costs of service would | would telephone that he was coming. have been if the summons had been di- He did not telephone, and it comes with rected to and served by the Constable poor grace at this time to ask us to set of the township, ward or district where aside the proceedings on such a ground. the defendant usually resides or can be A location was fixed in the summons, found, or by the next Constable most and it was his duty to find out where it convenient; but this proviso does not was, and be present, if he desired to qualify the right of any Constable in make a defense. the county to now serve the writ. In
The sixth exception is to the effect Sick v. McGuire, 11 Justices' Law Re- that the transcript fails to show that ports, 34, the judgment was questioned judgment was entered against the deon the ground that the summons was fendant. It will be seen that the plaindirected to and served by a Constable tiff had sued the defendant for $15,00 who was not of the township where the rent. The claim was duly proven by the defendant resided. It was held that, plaintiff, and thereupon the Justice, after under the Act of 1911, it could be di- stating these facts, made the additional rected to and served by any Constable; | entry in his docket : “Hence judgment is but that the Justice could not permit the hereby given in favor of said P. A. Constable to collect costs in excess of Urich, pl., for 15$ and int. & accrued what they would have been if the sum- costs. Judgment in default.” He had mons had been served by the Constable previously stated that “Deft
. failed to of the township in which the defendant appear.” We have been referred to no resided.
cases which hold that such a record is Of course, a Justice cannot be the not a judgment against the defendant. agent of the plaintiff and at the same
we see how such a position time act in his official capacity. But in could be fairly maintained. The conBrubaker v. Sheibley, 19 Lanc. Law troversy was between the plaintiff and Review. 241, this Court held that, be- | the defenrlant. If the judgment was in cause the Allerman sent a notice to the favor of the plaintiff, it follows of necesdefendant prior to the commencement sity that it must have been against the of the suit, the defendant cannot justly defendant. Mere informality in the complain, for he was given an oppor- | entry of judgment by a Justice of the
Peace is not fatal. Thus, in the case of, it is not they must report to us. If they Kase v. Best, 15 Pa., 101, it was held neglect this duty, it is their own fault that it is not essential that the word if the license is lost. "Judgment” should be used, provided the record clearly shows for and against whom the decision was rendered. We think that this exception should also be
MORE TRIBUTES TO MR. HENSEL. overruled.
A tribute in memory of Mr. Hensel, The seventh exception is too general written for the Shakespeare Society by in its nature to need special comment. Mr. Samuel Dickson, the learned Nestor
For the reasons thus specifically given, of the Philadelphia Bar. the exceptions are overruled, the writ of certiorari is dismissed, and the pro- dent elected to membership in this So
Mr. Hensel was the first non-resiceedings of the Justice are affirmed.
ciety. His professional engagements Proceedings affirmed.
had brought him frequently to the city, and he had become the friend of many of the members, who knew how desir
able addition he would make. Quarter Sessions.
Though far from a regular attendant, he was present often enough to become well
identified with the Society, and his keen In re Granting of Liquor Licenses in 1915. appreciation and wide range of knowl
edge enabled him to contribute his full Side Rooms for Women Prohibited. share to the discussions of the evening. In granting the license of J. B. Kil- His experience in life and acquaintance
In granting the license of J. B. Kil- with men had given him a different point linger, First Ward, Lancaster City, of view from others. An alumnus of March 6, 1915, JUDGE LANDIS said:
the Franklin and Marshall College, he This license is granted. We, how- had had the more thorough grounding ever, direct that the sign “Ladies En- ! in the humanities given in the smaller trance” be taken off the side door, and colleges when he was a student; and that no liquor be furnished to women in continuing his studies throughout life, any side room.
and especially in literature, he became a We also desire to give a general no- man of broad and ripe culture. tice that side rooms for the serving of Having been admitted, in 1873, to the drinks to women are abolished in this Bar of Lancaster County, which has alcounty. Any holder of a license who ways had upon its roll lawyers of emidisregards this suggestion does so at his nent learning and ability, Mr. Hensel own risk.
soon took rank with the leaders, being In granting the license to Elmer especially effective as an advocate. Fisher, Third Ward, City, March 6, 1915, He never was betrayed by his facility JUDGE LANDIS said:
of speech into remissness of preparaThis license is granted. We, how- tion, and, always deeply interested in ever, now inform the proprietor of this public matters, he consented to take part hotel, that while he may have a waiting for some years in political campaigns, room for the accommodation of his and developed unusual power as an oraguests, he must not have a side room | tor. There was certainly no member of where liquor is sold to women. If he his own party at that day comparable to does so we will consider prima facie that him. The only office, however, he was he is selling to women of improper char- willing to accept, was that of Attorney acter, and will impose the burden on General, to which he was appointed in him to show, who they are, and what 1891, and his duties there were entirely their character is. The owners of these in the line of his profession. premises are also notified to see that After the election of his partner, Mr. this house is conducted properly, and if J. Hay Brown, to the Supreme Court, he was the undisputed leader of his Bar, tion to the records of the County and and came to represent the most impor- State. tant interests of his county as counsel,
A broad-minded and many-sided man, and to take part virtually in every liti- of great abilities assiduously cultivated gated case, small or great. But, though i and developeddriven to the limit by the demands of his profession, he did not neglect his
" Loving his land with love far brought
From out the storied past”duties as a citizen. He took an active interest in the Franklin and Marshall he was the ideal type of lawyer and College, being a member of the Board citizen. for many years, and becoming its President on the death of Mr. Baer. He
A tribute to William Uhler Hensel, wrote innumerable papers, chiefly local LL. D., Litt.D., adopted by the Cliosophic or biographical, for a literary society Society at its meeting held on Friday, which he had organized. He was an March 19th, 1915: active Trustee of his Church, and he
Others have spoken and written of attended with regularity the meetings of Mr. Hensel as a citizen, a lawyer, a the Pennsylvania Bar Association and statesman, and a man among men the American Bar Association, serving this presence it becomes us to speak of as President of the former in the year him as a member and officer of the Clio1888-9. He was President of the prin- sophic. cipal club of Lancaster, and an attentive
The plan of a literary and social club, member of the State Board of Law Ex- composed of diverse and yet congenial aminers, which passes upon the qualifi- elements of our city, was wrought out cations of all applicants for registration by kindred souls in an informal symas students at law, and all candidates posium around a table in Mr. Hensel's for admission to the Bar throughout the home, at the invitation of his wife Emily state.
Flinn Hensel. The scheme of organizaTo meet all these calls on his time and tion was publicly presented at a prelimattention, required remarkable strength inary meeting in the home of Dr. John and vigor, but his incessant labors did W. Nevin; at a second meeting the ornot impair his mental alertness or vivac- ganization became permanent when by ity, and his unfailing amiability and nomination of Mr. Hensel, Dr. Thomas kindlv disposition made him a most at G. Apple was unanimously chosen presitractive companion.
dent of the Society. The president apHe delighted in hospitality, and one pointed him a member of the executive of his great pleasures was to welcome committee, on which he served continuhis friends, including on one occasion ously for twenty years from 1879-1899. the members of this Society, to his coun- The eighth meeting of the first year try house, and to have them enjoy the was held at his residence and during the drives over the Welsh Mountains to thirty-six years of the Cliosophic's hisEphrata and through the fertile fields of tory the members enjoyed his hospitality Lancaster, not inferior in natural beauty thirty-four times. At the seventh meetto those of Warwickshire, and especially ing he read a paper on “The Crusades.” to have them present in the month of the first of a series of twenty-nine esTune at the great festival of the Man- says; the thirtieth was in process of heim Church, which then pays to the preparation but, on account of illness, heirs of Baron Stiegel the annual rental remained unfinished. of one red rose.
In 1904 he was unanimously elected Born near the City of Lancaster, he President of the Society, succeeding the had a deep interest in the traditions and Rev. Emanuel Vogel Gerhard, D. D. history of the County, and a warm and This office he filled until the time of his affectionate sympathy with its people, leath. At his suggestion a committee, and his occasional papers, when col- of which he was Chairman, was aplectel, will form an important contribu- pointed to prepare and publish a history