required in the operation of shifting. How long he might prudently continue at work, and what amount of observation he was bound to give to the progress of coupling the cars and approaching his locality, depended on too many elements to enable the court to say there was any fixed standard of prudent conduct to which he was bound to conform. That, under the evidence, was a question for the jury."

We are persuaded that this was a clear case of contributory negligence, and, without considering the other objections to plaintiff's right of recovery, the rule is discharged.

In the Court of Common Pleas of Susquehanna County, No. 136, January Term, 1906.

RULE UPON PLAINTIFF TO SHOW CAUSE WHY WRIT OF CAPIAS SHOULD NOT BE SET ASIDE AND DEFENDANT DISCHARGED FROM THE LIABILITY UPON HIS BAIL

BOND.

Cronk vs. Wheaton.

A resident of Deposit, New York, in returning from court held in another part of the State of New York, where he was a party and witness, passed through Pennsylvania, and was there served on the train with a capias. Rule to set aside capias, discharged.

Messrs. Floyd Axtell and T. J. Davies, for rule.

W. D. B. Ainey and Thomas Doherty, for plaintiff.

Opinion by Searle, P. J., April 9, 1906.

The defendant in this case is a resident of Deposit, State of New York. Upon December 27, 1905, he was in attendance before the Supreme Court of the State of New York, held at Binghamton, Broome County, New York, as a party and witness; same day, as he was returning to his home in Deposit from Binghamton, while on the railroad which runs through Binghamton and Deposit, passing between said. points through Susquehanna, he was arrested on a capias issued in above entitled case while in said County of Susquehanna and State of Pennsylvania, and gave bail in the sum of $1000.

It is well settled that parties and witnesses while in attendance upon court are privileged from arrest upon civil process, eundo, morando et redeundo, and this rule in Pennsylvania protects parties and witnesses from another state, attending the courts in this state, from service of process, although the attendance was by agreement of parties to take depositions before a notary public: Partridge vs. Powell, 180 Pa. 22. Biddle, P. J., in the court below, in an opinion which was affirmed by the Supreme Court, said: "As between the parties, it was a waiver of the necessity of taking out a commission for the benefit of the defendant. While he could not claim the privilege as against a third party, as he was not brought here, nor did he come voluntarily in consequence of any legal process, yet, when the legal process is waived by both parties,, neither can take advantage of the waiver. It would be an inducement to bring him within the jurisdiction which should not be taken advantage of; he ought to stand in the same position as if he came under a commission; in which case, we do not think he could be served."

The research of diligent counsel have been unable to find and cite any case in any state in which it has been that this privilege from arrest or summons on civil process extends beyond protecting the party or witness in attendance upon a court of the state in which the process issued from which the exemption is claimed. In the case of Holyoke and South Hadley Falls Ice Co. vs. Ambden, 55 Fed. Repr. 593, 21 Lawyers' Reps. Ann. 319, cited by counsel for plaintiff, it was held that a party or witness is not exempt from service of process in a state through which he is passing to attend court in a different jurisdiction.

District Judge Carpenter, in his opinion, in referring to the privilege of exemption from service of process, said: "In none of them, however, has it been held that a party or witness is exempt from service in any other jurisdiction than that in which his attendance as a party or witness is required. I cannot see any reason for further extending this rule. It is established by courts to protect their own process and suitors by the assurance that the courts in which the party has brought his action, or into which he has been summoned, or into which the witness has been summoned, will not permit its own process or that of other courts in the same jurisdiction, in another action. to embarrass

the proceedings. It seems to me that evils greater than these sought to be remedied would arise if the courts of one state should assume so to guard and protect all the other courts in the country."

In the case at bar, the defendant was voluntarily in the State of Pennsylvania and County of Susquehanna when the process was served. He was not here in response to any process of any court of the State of Pennsylvania or any agreement by the parties in this suit; he came into the state because he found it more convenient in going from his home in Deposit, New York, to Binghamton, in New York, and I can see no reason why the fact that his business at Binghamton, in the State of New York, was to attend the courts of the State of New York should exempt him from service of process in the State of Pennsylvania.

The rule is discharged.

In the Court of Common Pleas of York County, No. 11, January Term,

1906.

CASE STATED.

Niles & Neff vs. York County.

County auditors are entitled to legal advice in the performance of their official duties, and the attorney employed by them may recover from the county a reasonable compensation for his services.

Messrs. Niles & Neff, for plaintiffs.

Mr. H. C. Brenneman, for defendant.

Opinion by Wanner, J., March 12, 1906.

According to the admitted facts of the case stated, the plaintiffs were duly employed by the county auditors of York County to act as their legal counsel in the auditing of the county accounts for the years 1904 and 1905.

Their bill for $400 for services rendered, which is admittedly not excessive, was duly approved by said board of county auditors, and ordered to be paid by the County of York.

Payment of the same has been refused, however, by the county commissioners, and the only question before the court is whether or not. the county is liable upon this state of facts.

There is no statutory enactment which authorizes the employment of legal counsel by the county auditors at the expense of the county, and no Supreme Court or Superior Court case has been found which decides the precise question now before the court.

The custom of employing counsel for their assistance by the county auditors, at the expense of the county, has the sanction of long and unquestioned usage in the County of York, but no local judicial decision upon the question has been produced to the court.

There are numerous cases, however, that sustain the liability of the county for services rendered to the public, and for supplies and material necessary to the public service, though not specifically authorized by any statutory enactments. The reasons for that conclusion will be found to be entirely convincing upon an examination of the authorities: Con vs. Commissioners of Philadelphia County, 2 S. & R. 193; Rosenthal vs. Luzerne County, 11 Kulp, 183: Allegheny County vs. Watt, 3 Pa. 462; Venango County vs. Durban, 3 Grant, 66; Commissioners vs. Hall, 7 Watts, 290; Northampton County vs. Steele, 1 Mon, 582.

We may, therefore, safely conclude that the mere want of express statutory authority to the county auditors to retain counsel at the county's expense is not a sufficient defence to the plaintiff's claim, if it falls within the rule laid down in the above cases, viz., that the services rendered be necessary and exclusively for the public benefit.

Judge Terry, in the very recent case of the Wyoming County Auditors, 14 District Reps. 539. holds the county liable for fees for counsel retained by the county auditors, and among the reasons he assigns is one of great weight, viz.: The necessity of legal counsel to advise the county auditors, who are only laymen, in the discharge of the semi-judicial functions which they are called upon to perform in determining the liability of the county on claims presented against it, and the legality of the expenditures of the public moneys made by the county commissioners.

It is quite obvious that the solicitor to the county commissioners would not be a proper party to advise the auditors in passing upon the commissioners' accounts, and there is no other solicitor in the public. service of the county from whom they could ask advice. Hence, the propriety and necessity of getting counsel of their own to safeguard

them in the performance of their official duties, whose services would be enlisted exclusively in the interest of the public at large.

The only apparent difference between the case at bar and the one last cited is that the commissioners of Wyoming County had approved and paid the bill, and the question of the county's liability arose on the audit of their accounts.

But the court in that case held that the auditors, regardless of the sanction of the commissioners, could employ counsel in the discharge of their public work, because they possess by necessary implication all such powers as are requisite to enable them to discharge the official duties devolved upon them: 25 Am. & Eng. Ency. of Law (2d ed.), 364; Endlich on Int. of Statutes, secs. 417 and 418; Graham vs. Schuylkill County, 16 Pa. Superior Ct. 180; Chester County vs. Barber, Superior Ct. 180; Chester. County vs. Barber, 97 Pa. 455.

97 Pa.

In the case of Allegheny County vs. Watt, 3 Pa. 462, a coroner was held to have official authority to bind the county to pay for the services of an expert physician, whom he had employed to make a post mortem examination.

The county auditors should certainly have as much discretion and authority in the matter of securing necessary professional aid on their official work as a coroner has.

For the same reason that the solicitor to the county commissioners could not advise the auditors who sit in judgment on the commissioners' accounts, the latter should not themselves be entrusted with the choice of counsel for the auditors.

In every view of the case, the employment of the plaintiffs by the county auditors seems to have been proper and duly authorized by law.

We, therefore, enter judgment on the case stated in favor of the plaintiffs and against the defendants for the sum of $422. 80, with costs of suit.

The limitation of the hours of labor per day by statute and department regulations is held, in United States vs. Moses (C. C. App. 9th C.) 70 L. R. A. 281, not to entitle a laborer who voluntarily exceeds that limit without any contract of extra compensation to recover extra pay therefor from the government.