23 February 1889. P. L. 8.

Witness fees.

8 July 1885. P. L. 256.

81. The fees to be received by witnesses, shall be as follows, namely: Each day's attendance at court, one dollar. Each mile circular in travelling to and from such court, three cents.(r)

82. All witnesses in civil and criminal cases before justices of the peace and aldermen, in the several counties of this commonwealth, shall be entitled to compensation as follows, namely: For each day necessarily in attendance, fifty cents, tices of the peace. and for each mile necessarily travelled in going to and returning from the office of the justice of the peace or alderman out of which the subpoena issued, three

Fees before jus

2 April 1868 § 8. P. L. 11.

Fifty per cent over two thousand dol

lars to be paid to the state.

cents.

XXIX. Payment to the state.

83. The prothonotaries or clerks of the supreme court, courts of common pleas, of the courts of nisi prius, of the courts of quarter sessions of the peace, of the orphans' court, the register of wills and the recorders of deeds of this commonwealth, shall pay into the treasury, for the use of the commonwealth, after deducting all necessary clerk-hire and office expenses, fifty per centum on the amount of any excess over and above the sum of two thousand dollars, which shall be found by the auditor, appointed by the court to settle accounts of county officers, to have been received by any offices in any one year: Provided, If two or more of said offices shall be held by one person, the auditor-general shall add together the fees received in the offices so held, and shall charge the same percentage on the aggregate amount of fees received by such person holding more than one of such offices.(s)

FELONIOUS ASSAULT.

See CRIMES.

FEMALES.

1. Seats to be provided for female employés. 2. Punishment for violation.

22 March 1887 § 1. P. L. 7.

Seats for female employés to be provided.

Ibid. § 2. Punishment for violation.

30 June 1885. P. L. 202.

ited.

Penalty.

3. Employment of in coal mines prohibited. Penalty. Office work excepted.

1. Every person, firm, association, individual, partnership or corporation employing female employés in any manufacturing, mechanical or mercantile establishment in this state, shall provide suitable seats for the use of the female employés so employed, and shall permit the use of such by them when they are not necessarily engaged in the active duties for which they are employed.

2. Any person, firm, association, individual, partnership or corporation violating any of the provisions of this act shall, upon conviction thereof before any magistrate, alderman or justice of the peace, be sentenced to pay a fine of not less than twenty-five nor more than fifty dollars, to be paid into the treasury of the proper county, and costs for each offence, and any failure to pay the same, shall be committed to the proper jail until discharged according to law.

3. It shall be unlawful for any person, firm, company, corporation or association engaged in mining coal, mining and manufacturing or manufacturing it, in this Employment of in state, their clerks, agents, superintendents, officers or servants, to employ, cause coal mines prohib- or permit to be employed, any female labor or laborers in and about the coal mine, or any of the manufactories of coal, in this state; and any person so offending, upon conviction, shall be fined in any sum not exceeding five hundred dollars, nor less than one hundred dollars, or be imprisoned in the county jail for a period not exceeding six months, either or both in the discretion of the court: one-half of said fine to go to the informer and the remainder to the school fund of the district wherein the offence shall have been committed: Provided, however, That the provisions of this bill shall not affect the employment of a female in an office or in the performance of clerical work at such mine or colliery.(t)

Office work excepted.

(r) This is an amendment of the act 22 February 1821, § 13, 7 Sm. L. 377. This act only affects counties governed by the act 22 February 1821. The act 27 March 1866, is still in force in Schuylkill county. McDonald v. Mining Co., 8 C. C. 460. So, the act 11 March 1873, still applies to Philadelphia. De Haven v. Merath, 7 C. C. 388; s. c. 46 L. I. 496.

(8) This provision has a prospective operation and

applies to fees created by future statutes; it applies to marriage license fees. Matter of Marriage License Fees, 13 C. C. 172. By the act 31 March 1876, P. L. 13 (tit. "County Officers"), the fees belong to the county in all counties containing over 150,000 inhabitants.

(1) See the act 2 June 1891, art. 9, P. L. 176, tit. "Mines."

FEMALE WAITERS.

See AMUSEMENTS; INNS AND Taverns.

FEME SOLE TRADERS.

1. Who to be deemed feme sole traders. To sue and be sued without naming their husbands. In what cases their husbands' estates to be liable.

2. Sales of lands, by absent husbands, of feme sole traders, when void.

3. Case of shipwreck provided for.

4. When husbands' estates to be taken in execution

for debts contracted for the support of their wives and children. Process of attachment to issue.

5. When married woman to have the privileges of a feme sole trader.

6. How married woman may be decreed a feme sole trader.

ing their husbands.

1. Where any mariners or others are gone or hereafter shall go to sea, leaving 22 Feb. 1718 § 1. their wives at shop-keeping, or to work for their livelihood at any other trade in 1 Sm. 99. this province, all such wives shall be deemed, adjudged and taken, and are hereby Who to be deemed declared to be, as feme sole traders; (u) and shall have ability and by this act are feme sole traders. enabled to sue and be sued, plead and be impleaded at law in any court or courts To sue and be of this province, during their husbands' natural lives, without naming their hus- sued, without nambands in such suits, pleas or actions :(v) and when judgments are given against such wives, for any debts contracted, or sums of money due from them, since their husbands left them, executions shall be awarded against the goods and chattels in the possession of such wives, or in the hands or possession of others in trust for them, and not against the goods and chattels of their husbands; unless it In what cases their may appear to the court, where those executions are returnable, that such wives husbands' estates have, out of their separate stock or profit of their trade, paid debts which were contracted by their husbands, or laid out money for the necessary support and maintenance of themselves and children; then and in such case, execution shall be levied upon the estate, real and personal, of such husbands, to the value so paid or laid out, and no more.

to be liable.

Ibid. § 2.

2. If any of the said absent husbands, being owners of lands, tenements or other estate in this province, have aliened, or hereafter shall give, grant, mortgage or Sales of lands by alienate from his wife and children, any of the said lands, tenements or estate, absent husbands, without making an equivalent provision for their maintenance, in lieu thereof, when void. every such gift, grant, mortgage or alienation shall be deemed, adjudged and taken to be null and void.

3. Provided, That if such absent husband shall happen to suffer shipwreck, or be by sickness or other casualty disabled to maintain himself, then and in such and not otherwise, it shall be lawful for such distressed husband to sell or mortgage so much of his said estate, as shall be necessary to relieve him, and bring him home again to his family.

case,

Ibid. § 3.

provided for.

Case of shipwreck

Ibid. § 4.

When husbands' estates to be taken

4. But if such absent husband, having his health and liberty, stays away so long from his wife and children, without making such provision for their maintenance, before or after his going away, till they are like to become chargeable to the town or place where they inhabit; or in case such husband doth or shall live in in execution for adultery, or cohabit unlawfully with another woman, and refuses or neglects, within debts contracted for the support of seven years next after his going to sea, or departing this province, to return to his their wives or wife and cohabit with her again; then and in every such case, the lands, tene- children. ments and estate belonging to such husbands, shall be and are hereby made liable and subject to be seized and taken in execution, to satisfy any sum or sums of money, which the wives of such husbands or guardians of their children shall necessarily expend or lay out for their support and maintenance; which execu- Process of attachtion shall be found upon process of attachment against such estate, wherein the ment to issue. absent husband shall be made defendant. (w)

P. L. 430.

5. Whensoever any husband, from drunkenness, profligacy or other cause (x) 4 May 1855 § 2. shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader, under the act of the 22d

(u) There is no feme sole trading in Pennsylvania, except such as falls within some act of assembly. Jacobs v. Featherstone, 6 W. & S. 346.

(r) A feme sole trader may be sued, without naming her husband, for debts contracted, either in the course of her trade, or for the maintenance of herself and children, whether the same be by simple contract or by specialty. Burke v. Winkle, 2 S. & R. 189. She may be sued for repairs to her separate real estate, done by her order. Winternitz v. Porter, 86 P. S. 35. And she can maintain an action in her own name for

a distributive share of her ancestor's estate. Valentin, v. Ford, 2 Bro. 193. And see Winkler v. Pemberton, 9 W. N. C. 419.

(w) See Reilly v. Reilly, 4 Brewst. 169.

(2) A married woman whose husband, by reason of sickness, is unable to support her, does not thereby become a feme sole trader, though she carries on business for herself. Weiler v. Greiner, 12 Phila. 440. King v. Thompson, 87 P. S. 365. And see Ardin v. Underzook, 1 Chest. Co. R. 142.

P. L. 430.

4 May 1855 § 2. of February 1718, (y) entitled "An act concerning feme sole traders," and be subject as therein provided:(z) and her property, real and personal, howsoever acquired, (a) shall be subject to her free and absolute disposal during life, (b) or by woman to have the will, without any liability to be interfered with or obtained by such husband, and privileges of a feme in case of her intestacy, shall go to her next of kin, as if he were previously

When married

sole trader.

Ibid. § 4. How married woman may be decreed a feme sole trader.

dead.

6. That creditors, purchasers and others may, with certainty and safety, transact business with a married woman under the circumstances aforesaid, she may present her petition to the court of common pleas of the proper county, setting forth, under affidavit, the facts which authorize her to act as aforesaid, and if sustained by the testimony of at least two respectable witnesses, and the court be satisfied of the justice and propriety of the application, such court may, upon such notice as they may direct, make a decree and grant her a certificate, that she shall be authorized to act, have the power, and transact business as hereinbefore provided; and such certificate shall be conclusive evidence of her authority, until revoked by such court for any failure on her part to perform the duties by this act made incumbent upon her, which may be ascertained upon the petition of any next friend of her children.

P. L. 62.

II. IN PHILADELPHIA.

9. Fence-viewers in Philadelphia. Oath. 10. Their duties.

11. How fences to be built. Cost.

12. Division of cost of partition-fence.

13. Remedy of person aggrieved by insufficient party fence.

14. Building inspectors to act as fence-viewers.

III. MALICIOUS INJURY TO FENCES. 15. Malicious injury to fences punished.

I. Fence-viewers.

11 March 1842 § 1. 1. In addition to the duties now imposed upon the township auditors, (c) they shall hereafter perform the duties hereinafter prescribed as fence-viewers. In Township auditors addition to the oath now prescribed, to be taken by the auditors, they shall annually be sworn or affirmed to discharge their duties as such viewers, faithfully and impartially.(d)

to be fenceviewers.

Ibid. § 2. Vacancies, how supplied.

Ibid. § 3.

How expense of

2. In case of the death, removal or resignation of any fence-viewers and auditors, so elected, the judges of the court of the proper county shall appoint a suitable person to fill the vacancy, for the unexpired term of the person whose place is

vacant.

3. When any two persons shall improve lands adjacent to each other, (e) or where any person shall enclose any land adjoining to another's land already fenced division-fence to be in, so that any part of the first person's fence becomes the partition-fence between them, in both these cases, the charge of such division-fence, so far as is enclosed on both sides, shall be equally borne and maintained by both parties.(g)

borne.

(y) Supra 1-4. (z) A married woman can claim the privileges of a feme sole trader, under this act, without having been so decreed under the 4th section. Black v. Tricker, 59 P. S. 13. Orrell v. Van Gorder, 96 Ibid. 180. Lewis v. Eddy, 8 W. N. C. 355. Dawson v. Roney, 15 Phila. 92. Kerr's Estate, 28 Pitts L. J. 42. But without such decree, she cannot be held liable for debts contracted by her in business. Hantz v. Clawson, 12 Phila. 432.

(a) Under this act she may purchase property solely on her personal credit, subsequently paying for it with her earnings, and hold it against her creditors, without a decree. Ellison v. Anderson, 110 P. S. 486.

(b) She has power to convey her real estate, without her husband joining in the deed. Wilson v. Coursin, 72 P. S. 306. And to make a binding contract to convey. Ewing's App., 101 P. S. 371. And without a decree authorizing her to act as a feme sole trader. Elsey v. McDaniel, 95 Ibid. 472. And see Foreman v. Hosler, 94 Ibid. 418. And such conveyance will bar the husband's right as tenant by the curtesy. Moninger v. Ritner, 104 Ibid. 298. See Ayetsky v. Goery, 2 Brewst. 302, and the remarks upon that case in Moninger v. Ritner. The statute

giving such power is constitutional. Moninger v. Ritner, ut supra.

(c) Extended to borough auditors, by act 3 March 1847, § 10, P. L. 200.

(d) Their certificate is not to be disregarded, because they have not been sworn as fence-viewers. Shriver v. Stephens, 20 P. S. 138.

(e) The owners of adjacent unimproved lands cannot call upon each other to contribute to the charge of a division-fence between them. Palmer v. Silverthorn, 32 P. S. 65. Loeb v. Nissly, 21 Pitts. L. J. 158.

(g) An occupant is not bound to join in a divisionfence; he may set his fence, if it please him, not on the line of division, but within it, and if his neighbor extend his fence across the line to join it, it is a trespass. Dysart v. Leeds, 2 P. S. 488. Smith v. Johnson, 76 Ibid. 191. And a party who, on the destruction of a partition-fence, by accident, recedes from the former line, and erects a fence on his own land, is not bound to maintain the former fence. Painter v. Reece, 2 P. S. 126. Rohrer v. Rohrer, 18 Ibid. 367. Either owner of adjacent lands may, at pleasure, erect a partition-fence, and the occupation of his

4. On notice given, (h) the said viewers shall, within five days thereafter, view 11 March 1842 § 4. and examine any line-fence, as aforesaid, and shall make out a certificate in writ- P. L. 62. ing, setting forth whether, in their opinion, the fence of one has been already Duties of viewers. built, is sufficient, and if not, what proportion of the expense of building a new or repairing the old fence, should be borne by each party, and in each case, they shall set forth the sum which, in their judgment, each party ought to pay to the other, in case he shall repair or build his proportion of the fence, a copy of which certificate shall be delivered to each of the parties;() and the said viewers shall Their compensareceive the sum of one dollar for every day necessarily spent by them, in the dis- tion. charge of their duties, which they shall be entitled to receive from the delinquent party, or in equal sums from each, as they shall decide to be just.

Ibid. § 5.

5. If the party who shall be delinquent in making or repairing of any fence, shall not, within ten days after a copy of the certificate of the viewers shall have been delivered to him, proceed to repair or build the said fence, and complete the Penalty for noncompliance with same in a reasonable time, it shall be lawful for the parties aggrieved to repair or certificate of build the said fence; and he may bring suit before any justice of the alderman against the delinquent party, and recover, as in other actions, for work, labor, service done and materials found;(k) and either party may appeal from the decision of the justice or alderman, as in other cases.

peace or

6. The said viewers shall not be called out to view any fence between the 1st

day of November and the 1st day of April of the next year.

viewers.

Ibid. § 6.

Ibid. § 7.

of duty.

7. If any viewer shall neglect or refuse to perform any duty herein enjoined upon him, he shall pay for each such neglect or refusal the sum of three dollars, to Penalty for neglect be recovered by the party aggrieved as debts of a like amount are recoverable. 8. A majority of the viewers in each township shall be a quorum, and shall have power to do all the duties herein assigned.

II. In Philadelphia.

P. L. 109.

9. The board of surveyors and regulators of the city of Philadelphia shall, in 11 March 1862 § 1. addition to the duties now imposed upon them, perform the duties hereinafter prescribed as fence-viewers; that in addition to the oath now prescribed to be taken Fence-viewers in by the said surveyors and regulators, they shall be sworn or affirmed to discharge Philadelphia. their duties as such viewers, faithfully and impartially.

10. On application made to the said board of surveyors and regulators, the president shall, at the first meeting of said board thereafter, appoint three members thereof, who shall, within five days thereafter, proceed to view and examine any line or partition-fence, and shall make out a certificate in writing, setting forth whether, in their opinion, the fence, if one has been already built, is lawful or otherwise; and if not lawful, or if no fence is built upon said line, then stating what proportion of cost, repairing the old or building a new fence, should be borne by each party; and in each case they shall set forth the sum each party ought to pay to the other, in case he should build or repair the other party's portion of said fence, a copy of which certificate shall be delivered to each of the parties; and they shall also present to the said board, at the next stated meeting thereafter, a report of their proceedings, which report, if approved by said board, after hearing of the parties interested, shall be final and conclusive.

Oath.

Ibid. § 2.

Their duties.

built.

Ibid. § 4.

11. All partition-fences dividing enclosed lands within the rural districts of the said city of Philadelphia, shall be substantially made, at least four feet six inches high, and of sufficient rails or logs, the bottom rail or log to be not more than How fences to be eight inches above the ground; and in the built-up portions of said city, a tight board or palisade fence, substantially built, at least six feet high; and in either case, the said viewers and board of surveyors and regulators shall have power to designate the kind of fence to be built: Provided, The cost in the rural districts Cost. shall not exceed twelve cents per lineal foot, and in the built-up portions of said city, not exceeding twenty-five cents per lineal foot.

Ibid. § 5.

partition-fence.

12. In all cases where a building shall be a part of such party-fence, the owner of the ground on which such building is erected, shall be allowed for so much of said building as forms part of the petition, as part of his share of the whole Division of cost of fence, in proportion to the cost of the whole; and in case the parties shall agree to divide any partition-fence between them, such agreement, setting forth the kind of fence, and what portion of the same each party shall make and keep in repair,

neighbor's lands for that purpose is not adverse; when the charge assessed by the fence-viewers is answered, it becomes common property. Dysart v. Leeds, 2 P. S. 488. This section is substantially a re-enactment of the second section of the act of 1700, and it is not repealed by the act 4 April 1889. Where fence-viewers set forth the number of panels requiring resetting and repairing, the report will be sustained; and this, although they do not state in their certificate the sum which the defendant ought to pay. Roberts v. Sarchet, 14 C. C. 372.

(h) The party is not entitled to five days' notice,

but the viewers; as to the parties, no formal notice is contemplated. Shriver v. Stephens, 20 P. S. 138.

(i) The certificate of the viewers is not invalid, because it may require oral testimony to sustain it. Shriver v. Stephens, 20 P. S. 138. There is no appeal from their decision. Evans v. Jayne, 23 Ibid. 34.

(k) The jurisdiction of the justices is not ousted, by raising a question of title to the land: if there be, in fact, a partition-fence, the duty of contribution to maintain it exists; and neither party can excuse himself from this duty, by alleging that the line is in dispute. Stephens v. Shriver, 25 P. S. 78.

11 March 1862 § 5. shall be filed in the office of the board of surveyors and regulators, to be there kept as a public record. (1)

P. L. 109.

22 March 1865 § 1. P. L. 538.

13. If the party who shall be delinquent in making or repairing any fence, in accordance with the provisions of the act of which this is a supplement, shall Remedy of person not, within ten days after the report shall have been approved by the board of aggrieved by insuf surveyors, proceed to repair or build said fence, and complete the same in a reaficient party-fence. sonable time, it shall be lawful for the parties aggrieved to repair or build said

6 May 1870 § 1. P. L. 1303.

Building-in

spectors to act as fence-viewers.

23 March 1865 § 1. P. L. 42.

ing down fences

punished.

fence; and if the costs for the work done and materials furnished are not paid by the delinquent party, within three months after the completion of the same, a lien may be filed against the premises for said costs and expenses, which shall be of the same effect, and may be sued out and collected in the same manner as municipal claims are now by law collected.

14. The duties required to be performed by the board of surveyors and regulators of the city of Philadelphia, as fence-viewers, as provided by the act of March 11th, 1862, shall be performed by the building inspectors of said city, who shall have authority to fix the prices to be paid for the erection or repairs of said fences, or (as) may come under their official inspection, and they shall receive a fee of three dollars in each case, to be paid by the applicant for the view.

III. Malicious injury to fences.

15. If any person or persons, from and after the passage of this act, shall, maliciously or wantonly, break or throw down any post and rail or other fence, Maliciously break- erected for the enclosure of land, or shall carry away, break or destroy any post, rail or other material, of which such fence was built, enclosing any lots or fields within the commonwealth, such person or persons so offending shall be guilty of a misdemeanor, and on conviction, shall be sentenced to pay a fine, not exceeding fifty dollars, one-half thereof to be paid to the informer, on conviction of the offender or offenders, the other half to the support of the poor of such county, township, borough or ward where the offence has been committed, with costs of prosecution, or to undergo an imprisonment, not exceeding six months, or both or either, at the discretion of the court.(m)

FERRIES.

See BRIDGE AND FERRY COMPANIES.

1. Penalty for cutting ferry-ropes.

3. Boats, &c., to strike their masts. Penalty for

2. Owners to sink their ropes on request. Penalty refusal. for refusal.

8 Feb.1766 § 1. 1 Sm. 266.

ferry-ropes.

4. Courts to fix rates of toll in certain counties.

1. If any person or persons, from and after the publication of this act, shall cut any rope, stretched across the river Schuylkill and other rivers and creeks Penalty for cutting within this province, by the owner or occupier of any ferry, and used in drawing the boats carrying travellers over the same, and shall be thereof legally convicted before any county court of quarter sessions, to be held for the county where the said offence shall be committed, or such offender apprehended, every such person or persons, so offending, shall forfeit and pay the sum of ten pounds; one moiety thereof to the owner or owners of the said rope, and the other moiety thereof to the overseers of the poor of the city or township where such owner or owners shall reside, to be applied by them to the use of the poor of the said township.

Owners to sink their ropes on request.

2. If any person or persons shall have occasion to go up or down the said rivers or creeks in shallops, or other larger decked vessels, every such person shall request the owners or occupiers, their ferrymen or servants, to slacken and sink the said ropes, in such manner as to enable him or them to pass with his shallop, Penalty for refusal. or other larger decked vessel, in safety; and if the said owners or occupiers, their ferrymen or servants, shall neglect or refuse to slacken and sink the said rope, in manner aforesaid, with all convenient speed, every such owner or occupier being thereof legally convicted in the said court of quarter sessions, shall forfeit and pay the sum of ten pounds, one moiety thereof to the owner or owners of the said vessels so passing up or down the said river or creeks, and the other moiety to the overseers of the poor of the said township for the use of the poor thereof. 3. All flats or boats passing up and down the said river, if they shall be navigated by sails, shall have their masts to strike or take down occasionally, and the

Ibid. § 2.

(1) See Roberts v. Shipley, 2 W. N. C. 406.

(m) The fence law of 1700 was repealed by the act 4 April 1889, P. L. 27. Since the passage of that act a land owner is not required to fence cattle out; their owner must fence them in. Arthurs v. Chatfield, 38 P. L. J. 53; Thompson v. Kyler, 9 C. C. 205. Since

the passage of that act, the owner of cattle who is sued for damages for the trespass of his cattle, must show, to prevent recovery, that he kept his cattle in or tried to, by a sufficient fence. Barber v. Mensch, 157 P. S. 390.