this allegation, and says that, when he gave the defendant the transcript, he again told him that an affidavit was required, and that he feared the court would strike off the appeal. In view of the positive testimony of the magistrate, and of the fact that he could have no possible interest in deceiving the defendant as alleged, we conclude that the latter's allegation of misconduct by the magistrate is not satisfactorily established by the evidence.

It follows that the defendant's refusal or neglect to file the affidavit required to entitle him to an appeal are without excuse. Liberal as the courts are in permitting a defective appeal to be perfected, we think none of the cases go so far as to permit an essential to a valid appeal to be supplied under circumstances such as these. See Gordon v. Snyder, 2 Kulp, 308; Swallow ?. Red Ash Coal Co., ibid, 333.

The rule to strike off appeal is made absolute.

J. L. Lenahan, Esq., for plaintiff.

D. L. O'Neill, Esq., for defendant.

Court of Quarter Sessions of Luzerne County.

COMMONWEALTH 7. GOUGH.

The defendant was a permanent boarder at the hotel of the prosecutor. He left without saying to any person connected therewith that he was going, and without paying for the food or accommodations furnished him. On argument of the rule for a new trial, counsel for the prisoner contended that a permanent boarder was not within the meaning of the statute of 1876, P. L. 45, and that only a transitory guest who obtained food and accommodations within the meaning of the statute could be convicted. Held, 1, that under this statute there is no distinction between a guest and a permanent boarder; and 2, that the statute includes "every person" who, with intent to defraud, obtains food or accommodations.

Rule for a new trial.

The opinion of the court was delivered by

HANDLEY, J.-The defendant in this case was charged with having obtained credit and accommodations at the hotel of C. M. Steel, in the city of Wilkes-Barre, and that, after having obtained such credit, he "did abscond from said hotel, and did surrepti

tiously remove" his baggage and property therefrom. To this charge the defendant plead not guilty, and went to trial. The jury returned a verdict of guilty; whereupon the defendant filed reasons for a new trial and in arrest of sentence.

The reasons

Counsel for

having been mislaid, we are unable to state them. the defendant, however, on argument of this rule, contends that there is a great difference between a permanent boarder and a guest; that the law under which this defendant is indicted does not cover the case of a permanent boarder; it simply provides for the case of transitory guests who are staying at the hotel; and that, before a person can be convicted under this statute, it must be shown by the evidence that he removed his baggage surreptitiously. The act of 1876, P. L. 45, allows no such distinction. It says "that every person who shall, at any hotel, inn, or boarding-house, receive, or cause to be furnished, any food or accommodations with intent to defraud the owner or proprietor of such hotel ** out of the value or price of such food or accommodations, etc." These words are certainly broad enough to cover permanent boarders as well as staying guests. The evidence shows that Gough went to board in this hotel on the 26th of June, and left on the 11th of September without giving any notice to the proprietor or his agents, and also without paying his bill. It is also contended that the court erred in charging the jury that they had simply "to pass upon the question whether he did abscond, or whether he removed his baggage in the manner charged in the indictment." In another part of our charge, we used the exact words laid in the indictment. It is claimed, however, that the word "or" must have misled the jury; that the statutory word "and" should have been used in the charge. It has been held that some single offences may be committed in different ways. 1 Bishop, Cr. Law, sec. 785. Hence we left it with the jury to say, under the evidence, whether the defendant did abscond, or whether he did surreptitiously remove his baggage. If he absconded, after having obtained food and accommodations in the manner charged in the indictment, without paying for the same, then the offence against the statute was complete; or, if he left this hotel in the ordinary way, but without paying for the food and accommodations obtained in the

manner charged in the indictment, and afterwards surreptitiously removed his baggage, the offence within the meaning of the statute was also complete. A defendant may be convicted upon. evidence of any one of the five enumerated particulars mentioned in the statute. Commonwealth v. Morton, 6 Luz. Leg. Reg. 208. Rule for a new trial discharged, and the defendant is called for

sentence.

John Lynch, Esq., for the rule.
Charles Pike, Esq., contra.

Court of Common Pleas of Luzerne County.

SCHOOLEY & CASTERLINE 7. TURNER.

Arbitration-Costs-Attorney Fee.

An attorney fee is not taxable as part of the accrued costs which must be paid on an appeal from an award of arbitrators.

Rule to show cause why appeal from award of arbitrators shall not be stricken off.

The opinion of the court was delivered March 24, 1880, by

RICE, P. J.-This case came into court by appeal on the part of the defendant from a justice of the peace. The case was arbitrated, and an award filed against the defendant for ten dollars. The defendant appealed from the award, and this record shows that he has paid all costs except those made before the magistrate and the three dollars attorney fee. There being no proof to the contrary, the presumption is that he paid the transcript costs on taking his appeal from the justice's judgment, otherwise the justice would not have allowed the appeal. Act March 2, 1868, P. L. 257.

The single question then is as to the effect of the non-payment of the attorney fee. The opinion of Judge Pearson in McCulla v. Opple, Pearson's Decisions, 150, s. c., 3 Luz. Leg. Obs. 87, seems to show clearly that the fee is not taxable on an award

until the time for appeal has elapsed and it has become a final judgment. This being the case, it is not part of the accrued costs which must be paid on appeal. The case cited seems to have been well considered; and while we do not feel disposed to overturn the ordinary practice in respect to the taxation of the fee, we are bound to recognize the ruling of Judge Pearson as founded on a reasonable interpretation of the statute.

The rule is discharged.

L. W. Dewitt, Esq., for plaintiff.
D. S. Bennett, Esq., for defendant.

Court of Common Pleas of Luzerne County.

ANTHRACITE SAVINGS BANK V. BOYD.

Certiorari-Attachment-execution.

1. The record should show a service of the rule as well as the interrogatories.

2. The hours when the writ (issued by a justice) is made returnable should be stated with certainty.

3. A summons or attachment issued by a justice is fatally defective which does not inform the defendant where he is to appear.

4. Unless the defect is cured or waived, it may be taken advantage of on certiorari issued more than twenty days after judgment. Murdy v. McCutcheon, 14 Nor. 435, followed.

Certiorari,

The opinion of the court was delivered July 21, 1884, by

RICE, P. J.—That the first exception is fatal is precisely decided in Murdy v. McCutcheon, 14 Nor. 435, and that the twenty day rule does not apply is decided in Paine v. Godshall, I Luz. Leg. Reg. 3, and Mulligan v. Riley, 1 Kulp, 79. We need not discuss the other exceptions. It may not be out of place to say, however, that the record ought to show a service of the rule as well as the writ and interrogatories, and that the hour when the writ is made returnable ought to be stated with certainty.

The judgment in the attachment execution proceedings is reversed and set aside.

Court of Common Pleas of Luzerne County.

ANSLEY V. ARNT.

Judgment-Opening of.

1. On an application to open a judgment the burden of proof is on the defendant, and after very long delay on his part, during which witnesses are quite likely to have forgotten the details of the transaction, he is in equity required to do something more than to cast doubt on the plaintiff's

case.

2. A judgment may be opened as to a part, and the rule discharged as to the residue.

3. Monroe v. Monroe, 12 Nor. 520, followed.

Rule to open judgment.

The opinion of the court was delivered July 21, 1884, by

RICE, P. J.-The defendant's long delay in moving to open this judgment is a very strong circumstance against him; and if, after this lapse of time, he could show no other defense than discrepancies between the charges against him on the plaintiff's books, and the statement alleged by the latter to have been present, and to have been the basis upon which the note in controversy was ascertained, it would be entitled to very little consideration. The burden of proof is on him, and after this long delay, during which the witnesses are quite likely to have forgotten the details of the transaction, he is in equity required to do something more than to cast doubt upon the plaintiff's case. For example, the evidence as to an alleged double charge of the O'Malley check fails to show what the defendant claims. The amounts of the two charges are different, and it was therefore incumbent on the defendant to show that the charges relate to the same check; not on the plaintiff to show that there were two checks. Again, the allegation that the defendant was not credited in the settlement with the entire amount of cash paid by him to the plaintiff from time to time depends on the vaguest recollection, and is entirely unsatisfactory. I am unable, however, to satisfactorily account for the one hundred and twenty-five days which the defendant positively swears, and his time-book apparently shows, that he worked between April 1st and September, 1875.