1813.

FRANKFORD against PHILLER.

The form of the recognizance, said he, is a strong, if not conclusive, argument in favor of the proposition; the terms are prospective, and not retrospective; " that if the defendant "shall be condemned, &c." in this case the defendant has already been condemned.

McKean Contra, argued, that the special bail was not waved the question, he contended, was to be decided upon the arbitration act of Pennsylvania, and the decisions of our Courts; and not upon the practice of the Courts at Westmins ter. It had been held, that the act authorized a rule of reference to be entered immediately upon the writ being issued, the arrest, the execution of the Bail Bond and the perfecting of bail above were acts that naturally succeeded. It was true, that it represented a course that was novel in judicial proceedings and which bore an apparent contradiction to the terms of the recognizance, but the answer to this objection was, ita lex scripta est. A contrary decision would put it in the power of a defendant to avoid an arbitration until after the time limited by the act for entering the rule.

Per CURIAM.

HEMPHILL, President.

The Court are of opinion, that the proceedings in this ease do not amount to an acceptance of the defendants appearance in Court, or a waver of Special Bail. Proceedings under the arbitration law of 1810 may be carried on without any appearance in Court. The objection made on account of the form of the recognizance of special bail, could have been urged with equal propriety if the rule of reference had been taken out by the defendant, and report made in favour of the plaintiff, yet, in such a case, it could not be pretended, with any degree of fairness or reason, that the necessity of putting in special bail would thereby be affected.

Again, if it is incumbent on the plaintiff to compel special bail to be entered before he can take a rule of reference, he would often be deprived of the opportunity of taking out a rule

of reference at all, as it must be done thirty days previous to the third term, beyond which period the proceedings on the Bail Bond suit might be delayed, and afterwards stayed, on the payment of costs, entering special Bail, &c, which may be done before the plaintiff has lost a trial term.

It is further to be observed, that references, under this Act, are compulsory; and, as the defendant is at liberty to take out a rule of reference at any time after the action is entered on the Docket, it is but reasonable, that the advantage should be mutual, and without prejudice.

Let the rule be discharged.

1813.

FRANKFORD

against PHILLER.

Rule discharged.

CASHEE v. WISNER.

In this case a Capias was issued on the morning of the The Court refirst day of the Term, and the defendant was arrested on the same day, after the rising of the Court.

fused to set aside a writ which was issued the first

A rule was obtained to show cause why the writ should day of a Term

not be set aside.

The Court said that it had been the uniform practice to sue out writs of Capias on the morning of the first day of the Term, and it was immaterial whether the defendant was arrested before or after the Court had risen, there being no fraction of a day. (a)

The rule was discharged.

(a) Wils. Rep. 372. Beal against Langstoff. 2 Bur. Rep. 812. Maud against Barnard. Prac. Reg. 352. Tidd's Prac. 148,

The declaration stated the Plaintiff to be a Mason and Bricklayer and one of the measurers in that business. The first Count charged the defendant with saying of the plaintiff that he was a liar, a scoundrel and a cheat; that all the measurers (meaning measurers of masons and bricklayer's work) were a set of swindlers and the plaintiff was a rogue. The second count charged the same words to have been said by the defendant to the plaintiff. By reason whereof the plaintiff was injured in his trade, &c. Damages, $1000.

After the jury were sworn Hopkinson, for the plaintiff, moved, on the authority of the Act of Assembly, to amend the declaration, by striking out the words " mason and bricklayer," wherever they occurred, and inserting in lieu thereof "plasterer."

Browne, contra, contended that the Act of Assembly authorised those amendments only which were matters of form, and the one proposed was of a substantial nature; the words laid were not actionable in themselves, but were made so when spoken of the plaintiff's trade and calling which the counsel wanted now to alter.

Hopkinson in reply said, that though the words were not actionable in themselves, they were so when applied to any trade or calling; the altering, therefore, of the particular trade was mere matter of form.

But BY THE Court,

HEMPHILL, President.

We have always confined the operation of this statute to very narrow limits; in one case we refused to allow a declaration to be amended by striking out the word endorser and inserting endorsee. We cannot allow the amendment in this

casc.

Motion refused.

The defendant, Daniel Texter, was indicted on five bills, On an indictfor stealing horses from five different persons.

Pleas" not Guilty.”

ment for lar-
ceny.
After the de-
puty Attorney
General had
once and the
defendant's

closed the evi

counsel had summed up,

The evidence was conclusive as to the defendant being found with the whole of the horses in the County of Berks, but through inadvertence there was no proof except upon one of the indictments, of the horses having been taken in the County of Lancaster. The examination being finished the the Court alAttorney General was called upon to declare whether the evidence to be evidence was closed, that the prisoner's counsel might address given on bethe Jury, which was affirmatively answered.

lowed further

half of the Common

Hopkins then addressed the Jury on behalf of the pri- wealth. soner and pointed out the want of jurisdiction both in Court and Jury, to hear or convict the defendant on four of the charges. That the evidence fully established another jurisdiction competent to hear and determine the larcenies charged. That if the Jury and Court here convicted and sentenced him on this evidence, he would be liable tomorrow to be indicted, tried, convicted and sentenced a second time, for the same offences, in Berks County, without the possibility of

1812.

COMMON

WEALTH

against TEXTER.

prevention. That the Jury were therefore called upon as humane, honest, and honorable men, to acquit the defendant, not only on the ground of the total defect of proof to convict him on four of the charges, but also on the ground of the inhumanity and unconstitutionality of making it possible to subject this unfortunate man to a second jeopardy for the same offence.

After Hopkins had concluded the prisoner's defence JENKINS, Deputy Attorney General, proposed to call the witnesses again, to prove that the horses were all stolen in the County of Lancaster, to obviate this technical difficulty (as he called it) in the way of most pregnant proof.

This attempt Hopkins most strenuously opposed as novel, highly dangerous, and alarming, and contrary to the settled practice and law in criminal cases.

THE COURT, FRANKLIN, President,

After argument, declared that they could not be spectators of the Justice of the Country being evaded by an act of mere inattention on the part of the witnesses, or the prosecution, and they would therefore allow the witnesses to be re-examined. This was accordingly done, and the defect in the testimony conclusively supplied, on which the defendant was convicted upon all the charges and sentenced.*

* See 7 Johns 32, 306.2 Hale, 296. REPORTER.