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2 Lancaster Bar 1 (1870-1871)

handle is hein.statereports/lancb0002 and id is 1 raw text is: k=.: Three Dollars a Year in advane Len Cents per Numbe VOLUME 2. COMMON PLEAS OF LANCASTER GEORGE F. SHULTZ. VS. JOHN H. SWEIGART, et al. I. A Justice of the Peace has no jurisdiction o party who has not been summoned, and paro dence is admissible on certiorari, to prove such of jurisdiction. 2. Before judgment can be taken by default bef Justice of the Peace, the constable must make a vit of the service of the summons. His official is not sufficient in such cases. This was a certiorari by John Sweigart, of the Defendants, to Daniel Lee, Esq., on the Justices of the Peace of Salisbury to ship. The Constable made the following retur the back of the summons, viz: Served nary 22d, 1870, personally by Samil. Bown constable of Salisbury township. There no other or further affidavit of the servic the summons. The defendants did not ap on the return day, January 26th, 1870, judgment was rendered against them by Justice by default. John Sweigart, one of defendants, testified under a rule of court, the summons never was served upon him sonally, or left at his house. The certio was issued February 10th, 1870, before the for an appeal had expired. REYNOLDS for Plaintiff. YUNDT for Defendants. Opinion delivered April 16, 1870, by Lo P. J.-In view of the fact, that many Ma trates, when elected to office, have very l practical experience in judicial proceedi and consequently do not properly apprec the importance of observing forms, courts disposed to look with indulgence upon t records, and to make liberal allowance, w there is an absence of legal precision. U the argument of this case, we thought it p able, that the defects complained of migh cured by the application of the legal presu tion, that judicial officers are supposed to charge their duties according to law. Bu find the errors of such a radical character, the application of this legal panacea is n sufficient remedy to effect a cure. It is axiom of the law, that in tribunals of lim jurisdiction, it must appear on the proceedi that such tribunals had jurisdiction of the ject matter, as well as of the person, and w this does not appear, the proceedings cat be supported. This judgment was rendere default, and the law which authorized its try, provides on due proof by oath or affir tion of the service of the summons, he justice) may proceed to give judgment by fault, publicly against the defendant. Ac 20th of March, 1S1O, Sec. 6, 4 Sm. 163. P of th e service of the summons is a sine qua - J 19901fth T) hr WILLIAM B. WILEY, PUBLISHER. Paulication Offiee, No. 16 North Duke WILLAM . WLEY,~UDt~MJ~hStreet, Lancaster, Pa. JUNE 4,1870. NUMBER 1. Co. to the rendering of a judgment by default. In days from June 27,1 which is supposed to point this case before us, there is nothing to indicate to a period of nine months from the day when that the constable was ever sworn or affirmed (Sir Charles being abroad) she was late at night and alone in the company of Lord Cole; and, to the summons. If this was intended to refer secondly, her oral confessions to her husbanld to his official oath, there would have been no Implicating Lord Cole and others, and which, ver a necessity to assert this requirement in the law, according to Sir C. Mordaunt's evidence, were 1-i. because the official oath taken when he was i-made to him on the third day after February want ucte 28 (the day of her confinement), and on the wan dutedinto the office, refers to all his acts done following days; and again on the 6th March, a3 an officer, but the fact of the service, like and again on the 8th. Without giving the ore a ffd-every other fact, must be verified by oath or details of these confessions, it is sufficient to say of them that they all confessed to an act of oath affirmation, and such are the precedents in re- adultery, though it was only in the last of them gard to proceedings before Justices of the that names ,were mentioned. With regard to one Peace, so that the mind of the constable may the diary, th e entry must, we think, though no ec of be directly drawn to the matter, under the proof was given of its actual dq .te, be taken to have been made prior to her confinement, and wn- solemnity and responsibility of an oath, and therefore at a time when she was undoubtedly innocent parties not be called upon to answer sane. It was found by Sir C. Mordaunt among n on to an unjust judgment. There is nothing in her papers abont the 16th March; and the Ia-the proceedings returned by the Justice to in- object of an entry like this being to connect a Jan-dicte hatthi wa don. Te Spree Curtthen past with a then future time, to what diat thtti a oe h urm or utur, event could it possibly point except to was in the case of Leacock v. White, 7 Bar 490, the usual period of gestation. e of says, the justice has no jurisdiction of the In the case of Robinson v. Robinson and pear parties when they are not legally summoned, Lane, 1 Swab. & Trist. 302, the case rested adand that fact may be proven by parole. In solely upon diaries kept by the wife. The fact tha .Fn.d0 odCmmsinr . lcigr of the alleged adulterer being made a corres- fo n w o prevent her con- tethe court remarks, it is a general rule in fessions being receivable ; the Judge Ordinary oth thtcases of certiorari to justices of the peace, that remarking, If Dr. L. had not been a party to per- the court is not to look beyond the transcript, the suit, the wife's confession would have been per-evidence against her. H-ow can the circum- rari parole evidence to show what took place before stance of his being before the court make it no Ulethe magistrate is ordinarily not admissible. BY evidence against her? It is true that there tie f such evidence the magistrate's proceedings can- the husband's petition for a dissolution was dis- not be impeached.) Very limited exceptions missed; but only on the peculiar circumstances to te rle hve eenadmited The donotof the case, the wife appearing, on considera- ntion of the whole diary, to have indulged in Jan- extend further than to allow parole evidence, unfounded imtaginations and exaggerated state- )NG, to establish want of jurisdiction in the justice, ments as regarded her intercourse with the igis- corruption, &c.; it havingbedtrmndy other sex, and the actualstemnsoth ittl th Surem Cortin te cse eferedto hatdiary falling short of a direct confession of the eact of adultery. ngas, want of jurisdiction as to parties consists in In Williams v. Williams, however, 13 L. T. late not being summoned, according to law, one of Rep. N. S. 610, a dissolution of marriage was are the defendants, who is now a competent wit- decreed on the mere admission of the wife. heir ness testified under a rule of court, that the oThe general principles to be applied to cases 'hen ummos wasnot erveduponhim, or lftoa this description are well laid down byChe hen ummns ws nt seveduponhim norlef atJustice Ceckburn in delivering the judgment of pon his house, and that he is in no way indebted to the full court in Robinson v. Robinson: If rob- the plaintiff. This testimony is not contro- this court had been a court of purely ecclesias- t be verted by the constable, or any person else, un- tical Jurisdiction, the 105th canon (of 1603), which prohibits the granting of a divorce onI .mp- less something of that kind might be implied the sole and unsupported testimony of the wife, dis- from the constable's return which at best is would have precluded us from acting on this tWe vague and uncertain, whether he served it upon evidence. But as this court is not a court of that one or both defendants, even supposing the re- ecclesiastical jurisdiction, nor bound in cases of divorce a vincufo by rules of merely ecclesi- ot a turn in other respects to be good. For the rca- astical authority, it is at liberty to act, and an sons stated, the judgment of the justice is re bound to act, on any evidence legally admissi- ited versed and proceedings set aside. ble by which the act of adultery is established; nand if, therefore, there is evidence, not open to ugs. objection, of admiesions of adultery by the sub- principal respondent, it would be the duty of hen ON THE LEGAL EFFECT OF CONFES- the court to act on such admissions, although inot SOSO GIT.there might be a total abseence of all other evi- 1 by While the principal actors-or at all events deuce to support it. No doubt the admission the judges-in the case which has lately at- of a wife, unsupported by a corroborative en- tracted 'so much painful attention in the Di- proof, should be received with the utmost cir- 'ma- vorce Court, are resting on their oars, it may cumspection and caution. Not only is the (the be interesting to many of our readers to inquire danger of collusion to be guarded ag-ainst, but de- what is the legal value of Lady iviordaunt's other sinister motives (which might lead to the t of allegred admissions of guilt, making of such admissions, if, though unsup- These admissions are said to have been two- ported, they could effect their purpose) areI roof fold: first, those derived from tho following sufficient to render it the duty of the court to th enrinhrdayo1693dArl25 prcewihteumscato ingvg

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