ruling of the Courts, and the rule must be discharged.

In the absence of this material proof, of what effect would the proposed so called after discovered evidence, now offered The rule is discharged at the costs of to be produced, on another trial, have or defendant; and the defendant is ordered ought it to have? It is only cumulative to appear at April Sessions, 1905, for evidence of that offered at the trial of an sentence. alibi, of the same character, which the jury evidently believed was mistaken, because it was testified as to defendant having been in York and that they were with the defendant, on August 19, 1904, fixed by the several witnesses as to the partic ular date, because of the maturity of a note in bank that day, which now appears clearly a mistake in the date. The jury could not rely on said evidence.

The law as to the granting of new trials, upon after discovered evidence is well settled by President Judge King, in Commonwealth v. Williams, 2 Ashmead

59:

"It is recognized as the law of this Commonwealth, and is as follows: 'It is necessary, first, that the testimony must have been discovered since the former trial; second, that it could not have been obtained at the former trial with reasonable diligence by the defendant; third, the testimony must not be merely cumulative and corroborative of other testimony given in the case; fourth, that the new testimony must go to the merit of the case and not be merely for the purpose of impeaching the crediblity of witnesses; and fifth, that the testimony must be such as will probably produce a different result.' See also Com. v. Byerts, 5 York Legal Record 13; Com. v. Wire, Ibid. 11; Com. v. Myers, 10 York Legal Record 106.

How is it possible that the evidence now proposed was even newly discovered, after the trial, when the assault was com. mitted on Friday and the defendant arrested on Tuesday following, when he was in York all day Tuesday, as claimed, and met in York the witnesses now of fered; he would have necessarily remembered meeting them, and called them, as he summoned the others examined at the trial, to establish his defense? This being the testimony of witnesses, all (except Strickhouser) who could and should have been produced at the trial, and merely cumulative testimony of the alibi then set up, cannot be held sufficient to require a new trial under the established

C. P. of

COMMON PLEAS.

Lancaster Co

Beach v. Pennsylvania Railroad Co.
Fees for serving subpoena-Witness Fees.
Though no statute makes the service of a

subpoena part of the costs of a suit in this State,

it is well settled by the custom of the courts that compensation for such service is part of the costs which the successful party is entitled to recover, whether the service was performed by the Sheriff or Constable, a private person or a party to the record.

While it has always been customary to regard the person serving the subpoena as an officer of the Sheriff and entitled to the same compensation as that allowed by law to the Sheriff for like service, the Act of July 11, 1901, P. L. 663, has so materially increased the Sheriff's compensation for such service that this custom should no longer be followed, and a party will be allowed fifteen cents for such witness and six cents a mile circular fees customary prior to said Act for serving a subpoena.

A party to the suit is not entitled to witness fees nor is a witness who is also a party in another suit tried the same week.

Appeal from taxation of costs.

The essential facts are stated in the opinion of the Court.

H. M. North and H. M. North, Jr., for defendant and exceptions.

C. E. Montgomery, Contra.

December 31, 1904. HASSLER, J.This appeal from the taxation of costs raises the question as to what fees a party to the suit is entitled for serving the subpoena.

Though no statute makes the service of a subpoena part of the costs of a suit in this State, it is well settled, by the custom of the courts, that compensation for such service is part of the costs which the successful party is entitled to recover, whether the service was performed by the Sheriff, a Constable, or a private person, or a party to the record; Axtell's Appeal, 6 Atl. 560; Hoover v. Harrington, 6 Watts 330; Patterson v. Anderson, 1 C. C. 86; Young v. Harold, 7 Kulp 285; Elllot v. Insurance Co., 1 D. R. 546;

Cody v. Clelam, 1 C. C. 8; Kepner v. Miller, Chester County 369; Wadlinger on Costs, section 160.

Another custom of the courts of general application, in this State, is to regard the person serving the subpoena as an officer of the Sheriff and entitled to the same compensation allowed by law to the Sheriff for like service.

It is the duty of the Sheriff to serve every process coming from the Court of Common Pleas. A subpoena is such a process. It is not directed to any one, so

Patterson v. Anderson is one of the early cases on this subject, and is cited in many of the subsequent decisions.

A custom must be reasonable or it will not be enforced; Jordan v. Meredith, 3 Yeates, 322; Coxe v. Heisley, 19 Pa. 243

When the compensation fixed by law for the Sheriff for serving a subpoena was fifteen cents for each witness and six cents a mile circular, the custom of considering by a fiction of the law, the person serving a subpoena as a Sheriff's officer and entitled to that compensation, was reasonabie and could harm no one. The unsuccessful litigant could not complain, as it could make no difference to him whether the Sheriff or some one else received such reasonable compensation. But when the compensation of the Sheriff is increased to such an extent as to be oppressive to the unsuccessful litigant, then the reason for the existence of the custom ceases, and the custom should no longer be followed. The maxim malus usus est abolendus applies.

that any one can serve it, but the Sheriff must serve it if he is called upon to do so. It would be manifestly unfair to permit a successful litigant to recover from his op ponent greater compensation for the ser vice of a subpoena when that service is performed by himself, a private party, or a Constable, than the Sheriff would be entitled to receive according to law if he had served it. The law not only makes it the Sheriff's duty to serve it if request ed, but it fixes his compensation. In nearly all the cases decided by the courts this custom, regarding the person serving The Act of July 11, 1901, P. L. 663, a subpoena as a Sheriff's officer and en- increases the Sheriff's fees for serving titled to the Sheriff's compensation, has subpoena to one dollar for the first witbeen invoked to reduce the amount claim-ness and fifty cents for each additional ed to that which the Sheriff would have witness. This is more than six times as been entitled had the service been performed by him; Kepner v. Miller, I Chester County 360; Young v. Harbold, 7 Kulp 285; Meagher v. Clearfield County, 3 D. R. 444; Deal v. Dauphin County, 5 D. R. 525; Boyle v. Luzerne County, 8 Kulp 141; Lyon v. Marshall, I C. C. 90; Commonwealth v. Neely, 2 Chester County 105; Shrope v. Northampton County. 3 L. L. R. 123; Hannum v. Becker, 4 D. R. 444; Patterson v. Anderson, 1 C. C. 86.

In giving his reasons for this custom, Judge Wickham in Patterson v. Anderson, I C. C. 86, says: "The persons serving the subpoena have by a fiction of the law which can harm nobody, been regarded as officers of the Sheriff, and therefore entitled to the compensation allowed by law for like service * * * If the subpoena have been actually served what matters it to the defeated litigant whether the amount allowed by law to some one for doing the work stops when it reaches the pocket of the opposite party, or is by him handed over to another person?"

much as was formerly allowed him in the case of the first witness and more than three times as much for each additional witness.

The Act also increases the mileage from six to ten cents a mile circular.

It is extremely unlikely that either party to a suit will employ the Sheriff to serve a subpoena, as the result of the litigation might compel such party to pay the exorbitant fees. For the same reason it is just as unlikely that he would pay, or contract to pay, such exorbitant fees to a Constable, or a private party, or incur such expenses in serving the subpoena himself. It would not be reasonable or just therefore to permit a successful litigant to come into court and expect the court to order his opponent to pay him the costs at the rate which he has not paid, or rendered himself liable to pay, and thus speculate at the expense of his adversary. The custom which requires us to make such an order would do harm to the unsuccessful litigant, and he would have just cause to complain of it. So the reasons for the custom, as

are served by the Sheriff when directed supra. The manner of serving ought to him by the proper court;

In the case before us, it is apparent there was no attempt to serve the summons directed by the Act of July 9, 1901. The return shows that the writ was serv. ed in accordance with the old practice. But the new Act, so far as it applies to the present case, requires a true and at tested copy of the summons to be handed to the defendant personally, or if it is left at his dwelling house, to be handed to an adult member of his family there It does not appear that either of these methods was followed.

The return does not show that a copy of the summons was handed to the de

copy;

fendant personally. True, the writ was
served upon him, according to the return,
at his dwelling honse by leaving a copy
of the original summons and making
known its contents, but it does not ap-
pear that the copy was handed to him.
Nor does it appear that it was handed to
an adult member of the defendant's
family at his dwelling house. The writ
was served upon the defendant at his
dwelling house by leaving a
whether the copy was left there or was
left with him is purely a matter of con
jecture Did it appear that it had been
left with him, it might be held that it was
handed to him, and so far was a fulfillment
of the requirement of the Act, but it does
not definitely appear whether it was left
with him or at his dwelling house. That
the writ is returned as served personally
is of no consequence, for the Act requires
service to be made by copy.

Besides, it does not appear that the copy of the original summons which was served was an attested copy The record merely shows that a true copy was served. This was not a compliance with the Act of Assembly, which provides that a true and attested copy shall be handed to the defendant. In this respect the service, if otherwise sufficient, is defective; Bank Perdriaux, Brightley's Rep. 67; Weston Mills Co. v. Brown, I Kulp 40.

v.

not to be left by inference or conjecture; Berryl v. Flinn, 8 Phila. 239; Heister v. Mulenberg, Woodward's Rep. 1. The Act of Assembly has pointed out the way the summons should be served, and all other ways are necessarily excluded. Indeed, the Act expressly repeals all other methods of service and declares that the methods pointed out in it are intended to be complete and exclusive. Section 17, Act July 9 1901, P. L- 620. To sustain the judgment against the defendant, it ought to appear that he was legally summoned. As it does not so appear, the There must be jurisdiction of both perAlderman has no jurisdiction of him. proceedings before a magistrate are void; son and subject matter, otherwise the Lacock v. White, 19 Pa 495; Hickey v. Conley, 24 Sup Ct. 388

It therefore does not appear that the service was made in the manner required by the Act of Assembly. The service of

It matters not in this case that the writ of certiorari was not sued out within twenty days, as required by Section 21 of the Act of March 0, 1810. That Act does not apply to proceedings before a justice of the peace under the Act of December 14, 1863, to obtain possession of demised premises; Graver v Fehr, 89 Pa. 460; nor does it apply when it ap pears for any reason that the justice has no jurisdiction; Lacock v. White, supra. The other exceptions are not sustained. The judgment of the Alderman is reversed.

Fritchey v. York Daily Publishing Co.
Libel-Malice-Change of Contract.

On a trial for libel, it is no ground for a new trial that the Court refused to charge that if the publications complained of "charged either acverdict, unless defendant has proved to the tual crime or fraud the plaintiff is entitled to a satisfaction of the jury the charges made." Such a charge would have entirely ignored the defence that the publications were priviliged.

It was not error for the Court to say to the jury that there could be no recovery unless the made, and that it was the duty of the jury unpublications were maliciously or negligently der the direction of the Court to determine

whether the publications were so made."'

It was not error for the Court to charge the jury that if they believed the evidence of the writer of the alleged libel there was no actual a summons ought to be made in the man-malice or ill-will against the plaintiff. ner prescribed by the Act, and the return ought to show definitely that this was done; Bank v. Perdriaux et al.,

Defendant having shown that the plaintiff had not done his work in accordance with the terms of his contract with the city, plaintiff of

fered in rebuttal evidence to show that the con- Second. The Court's charge in so far tract had been changed, and that his work was in accordance with the changed contract. This as it related to the question of actual evidence was refused. HELD, to be ground for malice and the evidence thereof.

a new trial.

Third. The rejection by the Court of The charge contained in the alleged libel offers of evidence by the plaintiff tending was a fraudulent performance of his contract to show that there were material changes by the plaintiff. It he could show that there were changes made by those who had authority to make the contract and to make the changes, then if what he did by the way of a departure from his contract was done in pursuance of such changes so made, it would rebut the defendant's proof on that subject.

Rule for new trial.

in the terms and specifications of the contract at the time it was executed made contemporaneously with the execution thereof, permitting the plaintiff to use black foundry sand in lieu of clean sharp sand as required by the written contract; and also allowing the plaintiff to use pro

Coyle & Keller and Black & Hawkins portions of sand and cement different for rule.

from those specified in the contract, and that the plaintiff in consequence of these

E. W. Spangler and N. M. Wanner, changes reduced his bid for the work some two thousand dollars.

contra.

March 27th, 1905. STEWART, J.Numerous reasons have been assigned in support of this rule but they may readly be grouped under three heads.

First. The Court's answers to the plaintiff's first, third, fourth and fifth points, and the defendant's first and third points. *

*The points referred to are these:

PLAINTIFF'S POINTS.

These reasons in support of this rule have been argued and urged with great ability and with much zeal, and are entitled to the serious consideration of the Court.

First as to the answers to points:

The plaintiff's first point entirely ignored the defence that the publications were privileged. This was one of the defences and to have affirmed the plaintiff's first point would have withdrawn

fied and the question of privilege submitted to the jury. Any other answer would

of referred to black sand and its unsuitableness

for sewer work.

First. If the publications set forth in the de-it from the jury. It was therefore modiclaration and complained of mean to charge either the actual crime of stealing, or, failing to go quite so far as to charge an actual crime indictable by the penal laws of Pennsyalvania, they charge such a fraudulent evasion of the contract under which the sewer work in question was done as would tend naturally if believed to affect the plaintiff injuriously in his business, if they do thus charge either actual crime or fraud in the sense explained, then they sustain the plaintiff's action, and the plaintiff is entitled to your verdict, unless in support of its plea of justification the defendant has proved to the satisfaction of the jury the truth of the charges as made.

Third. One of the defendants' witnesses, Mr. Kissinger, having testified that he observed the mixing of the mortar used upon the work in ́question, and having testified that the proportions were two of sand and one of cement, the jury must find if that testimony is believed that defendant had failed to sustain his plea of justification so far as the publication complained of referred to the proportions of sand and mortar used in the cemeut.

Fourth. One of the defendants' witnesses Mr. Garrity, having testified that black sand such as was used by the plaintiff upon the work in question is sand which when mixed in proper proportions with good cement is suitable for sewer work and will make a good job, the jury, if the testimony is believed, must find that the defendant has failed to sustain its plea of justification in so far as the publication complained

examination of the

Fifth If the jury find from all the testimony that the brick bought by the plaintiff from Bashore were rejected, in so far as they were rejected at all, by the Highway Committee and the City Engineer, after an brick made by them, the duly constituted city authorities, at the instance of the plaintiff or his representatives, in that case the defendant has failed to sustain its plea of justification in so the brick bought by the plaintiff for use in this far as the publications complained of referred to

work.

DEFENDANT'S POINTS.

First. The communications complained of by the plaintiff in this case, were published in a public newspaper on a subject proper for public information. If they were published in good faith and upon probable cause, there can be no recovery for damages in this case by the plaintiff, and the verdict of the jury should then be

for the defendant.

Third. No damages can be recovered by the plaintiff in this case, unless he has established to the satisfaction of the jury, under the direction of the Court, that the publications complained of were maliciously or negligently made, and the jury is to determine whether they were so made from all the evidence in the case.