39 Pa. Super. 272 | Pa. Super. Ct. | 1909
Opinion by
We concur with the learned judge below in his conclusion, and
The charge of two cents, as explained in the affidavit of defense, was not for any service rendered or claimed to have been rendered by the justice, nor for any fee which he claimed was legally chargeable by him or the constable, but was made by the constable and was paid to him directly by the plaintiff to reimburse the constable for a postage stamp he had used in mailing to the plaintiff, a notice of the proceeding, instead of subjecting him to the expense of the service of a warrant. The facts set forth in the affidavit of defense repel the conclusion that it was exacted by the justice from the plaintiff colore officii. The law as to penalties for taking illegal fees is very strict, but not so absurdly strict as to make a justice of the peace liable to a penalty of |20 under the circumstances connected with this charge as explained in the affidavit of defense.
As to the other two charges there is more room for doubt as to the sufficiency of the affidavit of defense. But it is unnecessary to decide positively as to these two items prior to the trial of the case and a full development of the evidence relating to them. As the plaintiff was not entitled to judgment for his whole claim the court ought not to be convicted of error in not making an order permitting him to take judgment for part of it, and to proceed with his action for the recovery of the balance, where neither in the application for the rule, nor in the rule itself, nor in any other manner, so far as the record shows, was the court asked to exercise the power conferred by the Act of July 14, 1897, P. L. 266.
The appeal is dismissed at the costs of the appellant, without prejudice to his right to a trial by jury and a second appeal after final judgment.
