possession, with intent to sell, 'renovated butter,' in violation of shall, for every offence, for

any of the provisions of this act,

feit and pay the sum of $100, which shall be recoverable, with the costs, by any person suing in the name of the Commonwealth, as debts of like amount are by law recoverable;" and justices of the peace are given jurisdiction to hear and determine actions for the recovery of penalties.

The proper proceeding under this section is to issue a summons and proceed as in any other case for the collection of a debt. In a proceeding under this section the defendant is not liable to arrest; if the informer wishes to collect the penalty prescribed; he must proceed by civil action.

Section 8 of the act provides that, "In addition to the above penalty, every person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished for the first offence by a fine of not less than $100 nor more than $300, or by imprisonment in the county jail for not more than thirty days, or both, at the discretion of the court."

This section makes the violation of the provisions of the act a criminal offence. Under it the defendant may be arrested and held for trial, and, upon conviction, may be sentenced by the court. A magistrate has no jurisdiction to impose a sentence under this section.

In the present case, a warrant was issued under the provisions of section 8, and, after hearing, the defendant was fined $100 and costs. This was beyond the jurisdiction of the magistrate; he had power only to hold the defendant for trial.

The jurisdiction of a justice, under section 7, is to issue a summons in a civil action to recover the penalty, and, after hearing, to enter a judgment for the amount of the penalty and costs. Under section 8, the jurisdiction is to issue a warrant for the defendant, and, after hearing, to hold him for trial if the evidence warrants it.

As it appears that the magistrate exceeded his jurisdiction in sentencing the defendant under section 8, the judgment is reversed.

A mechanics' lien, is held in Zabriskie vs. Greater America Exposition Co. (Neb.) 62 L. R. A. 369, to attach to a leasehold interest and to buildings erected by one tenant and sold to another who has acquired a lease of the same interest, notwithstanding the removal of the buildings at the end of the term is expressly required by the lease. The other cases on the question of mechanics' liens upon buildings, distinct from the land, are collated in a note to this case.

In the Court of Common Pleas, No. 5, Philadelphia County, No. 3229, September Term, 1903.

RULE TO SHOW CAUSE WHY CAPIAS SHOULD NOT BE QUASHED.>

Powell vs. Perkins.,

Under the Act of July 9, 1901, section 6, P. L. 614, a capias ad respondendum may be served either by arresting the defendant and holding him to bail or by serving the writ as a summons. When the defendant enters bail after the issuance of the writ, without a previous arrest, he waives the formality of the arrest, and he cannot afterwards be arrested under the writ, nor can either party complain that no arrest was made. It follows that a writ issued against a minor defendant, who, under the act; is not liable to arrest, must be quashed, when bail was entered for the defendant in the sum required without an arrest.

Mr. A. S. L. Shields, for plaintiff.

Mr. Charles Biddle; for defendants.
Opinion by Ralston, J., April 21, 1904.

On November 7, 1903, a capias ad respondendum was issued against the defendants, returnable the second Monday of November, 1903, and bail fixed at $1,200. Both the defendants are minors. The writ was never served upon either of them. On the same day, counsel for the plaintiff wrote to counsel for Charles P. Perkins, the father of the defendant, Polly Perkins, informing him that a capias had been issued and bail fixed at $1,200. On November 16, 1903, Mr. Perkins entered bail for his daughter in the sum required.

The act of July 9, 1901, P. L. 614, relating to the service of process, provides :

"Section 6. The writ of capias ad respondendum may be served by the sheriff of the county in which it is issued in any one of the following methods:

(a) By arresting the defendant, other than a minor or a married woman, and holding him to bail, or committing him to jail for want thereof; or

“(b) If the defendant be a minor or married woman, or if, from any cause, the defendant is liable to arrest, but is not arrested, then by serving the writ as in case of a summons; in which event the cause shall proceed with the same effect as if a summons in trespass had been duly served."

The plaintiff may, therefore, proceed in either of two ways, by arresting the defendant and holding him to bail or by serving the writ as a summons; In the present case there was no attempt to serve the writ as a summons, consequently there was no other way to proceed except by

arrest.

This course the plaintiff adopted. The defendant, being a minor, was exempt from arrest. It is urged, however, that no arrest was made, and that the entry of bail was gratuitous and should be disregarded. If this is true, the writ should not be quashed, but should be treated as any other writ which has issued but has not been served. Is this position sound? Must the sheriff take the defendant bodily into his custody? He may do so, but it is not necessary. The defendant may surrender himself and give bail, or he may simply enter bail. In either of these cases, he waives the formality of an arrest, just as when a summons is issued and not served, the entry of an appearance is a waiver of the service. Suppose, in this case, the defendant were liable to arrest, could she maintain that the entry of bail was to be disregarded and the bail bond declared void because she had not been actually arrested? Certainly not; because, by entering bail, the arrest and all proceedings up to the time when the defendant must either enter bail or be committed are waived. Nor can the plaintiff, having chosen to proceed by arrest and having reached the point where the defendant has entered bail, claim that the entry of bail is a nullity because the sheriff did not take the defendant's body into his custody. After bail has been entered, the object of the writ has been attained; the defendant cannot afterward be arrested under the writ, nor can either party complain that no arrest was made.

The defendant must be regarded as having been arrested and held to bail, and as she was not liable to arrest, the writ should be quashed: Vocht vs. Kuklence, 119 Pa. 365; Whalen vs. Gabell, 120 Pa. 284.

The rule to quash the capias ad respondendum, issued in the above case against Polly Perkins, is made absolute.

A judgment for plaintiff in an action to remove from his land a permanent wall erected by defendant, which can not be removed by legal process, in which action the plaintiff asks only for the relief appropriate in a legal action to recover real property, is held, in Hahl vs. Sugo (N. Y.) 61 L. R. À. 226, to be a bar to a subsequent suit in equity to compel the removal of the wall under statutes establishing one form of action, and requiring the complaint to state the facts constituting the cause of action, and demand the judgment to which plaintiff supposes himself entitled.

Fixing the rates to be charged by an interstate carrier for carriage, within the state, of a shipment which is delivered to the carrier at a point in another state, is held in Southern Express Co. vs. Goldberg (Va.) 62 L. R. A. 669, to be beyond the power of a state.

In the Court of Common Pleas, No. 2, Allegheny County, No. 479, October Term, 1903.

CASE STATED.

TAXES-LIEN OF-FAILURE TO REVIVE AS REQUIRED BY ACTS OF MAY 4, 1899, AND JUNE 4, 1897.

Hamill vs Andresak.

The special Acts of May 1, 1861, P. L. 450, and its supplement of April 8, 1862, P. L. 327, regulating the collection of taxes in Allegheny county, are repealed by the general act of May 4, 1889, P. L. 79, amended by Act of June 4, 1897, P. L. 122, at least so far as the perpetuity of liens thereunder is concerned, and, therefore, the lien of taxes in Allegheny county. is lost, unless revived in accordance with the general acts mentioned.

Mr. S. R. McClure, for plaintiff, cited State Deposit and Trust Co. vs. Fricke, 152 Pa. 231; Seifried vs. Com., 101 Pa. 200, and Malloy vs. Com., 115 Pa. 25. Also State vs. Township Commissioners (N. J.), 3 Cent. Repr. 351.

Mr. Daniel Harrison (Mr. R. E. Stewart with him), for defendant.
Opinion by Rodgers, J., March 31, 1904.

The above came on for argument upon a case stated substantially as follows: On September 24, 1903, defendant made a conveyance to plaintiff of two certain lots of ground, being Nos. 68 and 19 in John Dalzell's Ravine Plan, situate in the borough of North Braddock, this county, covenanting to convey said lots free of liens and encumbrances. Certain tax liens are entered against this property. However, the period of more than five years has elapsed since the entry thereof, and none of them has been revived by scire facias.

The question for determination, therefore, is whether the failure to revive said liens within the period of five years has rendered them all nult and void and of no effect; in other words, does the general Act of May 4, 1889, P. L. 79, relating to tax liens, repeal the special Act of May 1, 1861, P. L. 450, and its supplementary Act of April 8, 1862, P. L. 327, both being special acts relating to the county of Allegheny in this respect.

It seems to us hardly necessary to discuss this question at length, for, although we find many decisions holding that special acts of this character are repealed by subsequent general acts, and this especially since the adoption of the Constitution as tending to produce uniformity, we are of the opinion that this case comes within the rule laid down in the case of Philadelphia vs. Baker, 142 Pa. 39, holding that by the passage of the Act of May 4, 1889, "it was clearly the intention then, as

.

before, to put an end to perpetual liens." This surely does not contemplate the abolishing of such perpetual liens in Philadelphia alone, but, to use the concise and certain language of the act, "that hereafter no county tax levied shall remain a lien .. for a longer period than five years," etc. How, then, can it be contended that the county of Allegheny alone shall have its separate system in this regard, or that its special acts similar in character to that passed upon in the abovecited case shall remain in force?

We are of the opinion that the Act of May 4, 1889, repeals the Act of May 1, 1861, and its supplement, the Act of April 8, 1862, at least in so far as the perpetuity of liens is concerned, and, therefore, enter judgment herein in favor of defendant.

In the Court of Common Pleas No. 1, Philadelphia County, No. 325, March Term, 1904.

RULE TO DISSOLVE FOREIGN ATTACHMENT..

Gibney vs. Pennsylvania Motor Car Company.

A foreign attachment will be dissolved, unless the non-residence of the defendants is averred in the affidavit of cause of action, although the writ issued against them as such.

A garnishee may move to dissolve a foreign attachment for an irregularity apparent on the record.

Mr. J. Martin Rommel, for plaintiff.

E. P. Smithers, for defendant.

Opinion by Beitler, J., April 12, 1904.

The rule is taken by a garnishee. He alleges in the affidavi upon which the rule was granted that there was no corporation by the name of the Pennsylvania Motor Car Company until months after the work was done, to recover for which the suit is brought, but that the work was done for a partnership of that name.

The plaintiffs, in their affidavit, do not allege that the company is a foreign corporation, though they is ued their attachment against "Pennsylvania Motor Car Company, a foreign corporation formed under the law of Washington, D. C." The copy of book account set out in the affidavit charges the "Pennsylvania Motor Car Company, No. 242 North Broad street." There is, then, nothing on the record to sustain a foreign attachment: Howell vs. Tenney Canning Co., 16 Pa. Superior Ct. 60.