In re Workmen's Compensation Act. I also advise you that the bond should not run to the Commonwealth, but should run to the "State Treasurer, Custodian of the State Workmen's Insurance Fund," and that the Fund should not be deposited to the credit of the Commonwealth, but to the credit of the "State Treasurer, Custodian of State Workmen's Insurance Fund." Answering your inquiry as to whether the money betonging to this Fund is to be taken into account in keeping within the maximum deposit as fixed by Section 4 of the Act of 1906, I have to advise you that Section 4 of that Act relates to State money's only, and that the money belonging to this Fund should not be taken into consideration in fixing the maximum deposit of State funds. You also ask to be advised as to whether this Fund must be deposited in one of the six active depositories, as provided by Section 8 of the Act of 1906. That Section provides that: "The Revenue Commissioners and the Banking Commissioner, or a majority of them, shall designate two banks or trust companies in Dauphin County, two banks or trust companies in Philadelphia County, and two banks or trust companies in Allegheny County, to be known as active depositories, in which shall be deposited a sufficient amount of the daily receipts of the State Treasury to transact the current business of the Commonwealth.” This plainly refers to the moneys belonging to the State which go into the State Treasury, and in my opinion it would not control the deposit of the State in Workmen's' Insurance Fund-that is to say, that banks which have been selected as State depositories under the provisions of the Act of February 17, 1906, may be used as the active depository for the State Workmen's Insurance Fund and that such Fund is not limited to the active depositories as provided by Section 8 of said Act. I herewith submit to you a form of the bond to be given you as custodian of the State Workmen's Insurance Fund. Very truly yours, WM. M. HARGEST, Deputy Attorney General. Habeas Corpus In re Habeas Corpus for Misdemeanors. -Summary Convictions-Misdemeanors-Former Jeopardy. A defendant released on Habeas Corpus after he had been found guilty and sentenced in a summary proceeding because the information was laid under the wrong act, may be re-arrested on a proper information. The application of Habeas Corpus proceedings for convictions for misdemeanor discussed. OFFICE OF THE ATTORNEY GENERAL Harrisburg, Pa. December 14th, 1915. Honorable N. R. Buller, Commissioner of Fisheries, Harrisburg, Pa. Sir: This Department is in receipt of your inquiry of November 29, 1915. In this you state that certain defendants in Wayne County were arrested on an Information drawn under the Act of May 5, 1909, P. L. 408; after a summary hearing they were found guilty and sentenced. Thereafter, on habeas corpus proceedings, they were released in that the prosecution should have been instituted under the Act of May 22, 1889, P. L. 1. In. other words, the facts, if fully developed at the hearing, were not sufficient to sustain a conviction under the Act, with the violation of which the defendants were charged. You ask if after a judgment in a summary proceeding a defendant is discharged on appeal or by writ or habeas corpus, whether he may again be arrested and summarily tried upon the same facts. Where, in a summary proceeding, a defendant is convicted and thereafter the conviction is reversed, the matter presented involves either-first, the jurisdiction; second, the procedure; or third, the substance of the prosecution. The doctrine of former jeopardy is often improperly applied to such actions. Former jeopardy is only applicable to felonies, and in this state is strictly applied only to crimes the punishment of which is capital. By analogy, however, the Courts uniformly extend the general principles of former jeopardy to all criminal and penal sections under which the defendant might be sentenced to imprisonment, if convicted. There are no well marked rules for applying the doctrine so adopted. In order, therefore, to properly inform you it is necessary to cite cases under which the plea of former acquittal or conviction has been held to be inapplicable. Summary convictions are principally distinguished from the ordinary criminal action in that the former are triable by a Justice of the Peace or other proper offical on an Information made by the prosecutor, while the latter are triable before a Court and Jury of twelve upon an Indictment found by a Grand Jury. While there is a marked paucity of decisions or other authority on the effect of former acquittal or conviction in summary proceedings, yet the decisions bearing on such a plea in the trial of misdemeanors may be readily applied to summary convictions by likening the Indictment in the former to the Information in the latter. As stated in 12 Cyc., 278: "The accused is estopped to plead a prior conviction where his conviction has been reversed for error on an appeal or writ of error brought by himself, although he has served a part of his term of imprisonment." This rule was followed in the case of Pennsylvania vs. Huffman, Addison, 140. In this case the defendant was charged in the indictment with having forged a receipt, for the use of "Hugh Brison." On the trial of In re Habeas Corpus for Misdemeanors. the case the receipt offered in evidence showed the man's name to be "Hugh Prison." The Defendant was convicted of forging the name of "Hugh Prison," but on motion the judgment was arrested. Thereafter a new Indictment was returned, in which the name was properly spelled. The Defendant pled former conviction. The Court in overruling the plea stated: "On the merits, Huffman has been convicted of a forgery, though not of the forgery stated in the indictment on which he was tried. On the former indictment and verdict, no judgment could be given, because the verdict did not find the offense laid in the indictment; and because that indictment for forging the note stated in it, could be no bar to another indictment, for forging the note given in evidence. The error is apparent on the record. And to say now, that this is an indictment for the same offense would be, in fact, saying, that we ought to have given judgment on the former indictment." This case is referred to in Sadler on Criminal Procedure in Pennsylvania, page 336, in which the rule is stated: "The former conviction must have been upon an indictment sufficient to sustain the judgment." In the case of Commonwealth vs. Zepp, 3 Clark, 255, a defendant was tried on an Indictment charging him with violation, in 1840, of an Act which was not passed until 1842, and Defendant was acquitted. Thereafter a new indictment was returned giving the correct date of the offense as 1845. The defendant's plea of former acquittal was overruled for the reason that the first Indictment was not sufficient to have sustained a conviction. In the case of Commonwealth vs. Allen, 24 Pa., C. C. Rept., 65, it was held that where a defendant is discharged on an insufficient indictment the law has not had its end, and that he may again be indicted and tried. Again in the case of Commonwealth vs. Eagles et al, 7 W. N. C., 324, it was held: "To support the plea of autrefeis acquit, in an indictment for larceny, the defendant must show affirmatively that in the former trial his liberty was in legal jeopardy. If it appear that the Court had no jurisdiction; or that there was clear error, which would necessarily have required a reversal of the sentence on a writ of error; or that an Act of Assembly under which the defendant was tried was clearly and palpably unconstitutional, the plea of former trial and acquittal is not maintainable in bar of a second indictment in the Quarter Sessions for the same offense." In considering the last excerpt, however, it must be borne in mind that any error which would justify a retrial after acquittal, must be more than an error of procedure. If the Justice had jurisdiction and the Information was directed to the proper Act of Assembly and sufficient to sustain a conviction, re-arrest and trial after acquittal would be only justified by the clearest error or fraud and collusion in the prosecution. In the case which you present, I would advise that the defendants may be re-arrested under an Information charging them with the violation of the proper Act. It would be well if you would call to the attention of this Department the particulars in each case in which a re-arrest and re-trial is thought necessary, but for your general guidance in this matter would advise that in summary proceedings where the defendant is convicted and prior to having served his sentence, the sentence is reversed, or the defendant discharged on habeas corpus, he may be re-arrested and re-tried, where. 1. The Justice or other trial officer has no jurisdiction. 2. The Information was not sufficient to sustain a conviction. In re Habeas Corpus for Misdemeanors. 3. Such reversal or discharge was occasioned by improper procedure such as an insufficient record or transcript, etc. The first and second reasons are also sufficient to justify a re-arrest and retrial of the defendant even where the defendant on the hearing was acquitted. Where an information is sufficient, and the procedure otherwise correct, the record or transcript may in most instances be amended as to formal defects. Very truly yours, HORACE W. DAVIS, Deputy Attorney Genera Safe Deposit & Trust Company vs. Hogsett. Affidavit of Defense-Principal and Surety-Promissory Note-Liability. Where a joint and several promissory note has been signed on its face by each of three persons as "principal" and by each of two others as "surety" an action may be maintained against one of the sureties alone and without recourse having been had to the principals. Rule for judgment for want of a sufficient affidavit of defense. No. 266 June Term, 1915. C. P. Fayette County. Thomas H. Hudson and Joseph J. Baer, for plaintiff. VAN SWEARINGEN, P. J., December 7, 1915.-This case is before the court on a rule for judgment for want of a sufficient affidavit of defense. The action was brought by the Safe Deposit & Trust Company of Pittsburgh, executor of the estate of Joseph S. Struble, deceased, against John F. Hogsett, one of the signers of a joint and several promissory note, of which the following is a copy: $10,000. Uniontown, Pa., November 30, 1914. Sixty days after date we or either of us promise to pay to the order of Joseph S. Struble, ten thousand dollars, value received. W. P. HURST, Principal, The affidavit of defense alleges that "while said defendant and the said William Hankins signed on the face of said note along with the principals, yet it was understood by all parties to the note that said defendant and said Hankins were receiving no benefit and were signing as sureties for the real makers; that the payee in said note, Joseph S. Struble, knew at the time said note was given that said John F. Hogsett and William Hankins were merely sureties and not joint and several makers with the principals, and so accepted them; that by said arrangement and understanding with said payee they, the said John F. Hogsett and William Hankins, became and are co-sureties on said note and as such said defendant is not legally liable in this action, being a co-surety with said Hankins, and jointly liable, a joint action only can lie against said defendant for any liability which has Safe Deposit & Trust Company vs. Hogsett. or may accrue against said defendants." We are of opinion that the affidavit of defense is insufficient to prevent judgment. As a matter of law all of the subscribers to the note are immediate parties thereto as between themselves and the plaintiff. In Kleckner vs. Klapp, 2 S. & R., 44, it was held that, "The addition of the word 'surety' to the name of one of several signers to a note does not change his character or liability from that of a promissor to that of a guarantor." In Craddock vs. Armor, 10 Watts, 258, it was held that the marginal annexation of the words "security for the fulfilment of the above" to the name of a joint promissor in a note, will not change his character of promissor to that of a guarantor. If we consider Hogsett and Hankins as sureties for the other makers of the note as principals, the affidavit of defense is ineffective. In Domestic Sewing Machine Company vs. Saylor, 86 Pa., 287, it was held that, "whether a surety can be proceeded against before proceedings against his principal depends to some extent upon the form of his obligation, but where he becomes liable in a joint and several contract to pay money, which his principal owes, he may be proceeded against in the first instance." In Geddis vs. Hawk, 1 Watts, 280, it was held that, “A creditor is not bound to resort to the principal for the collection of his debt, in the first instance; nor is he bound to resort first to a lien which secures his debt; but he may sue and recover from a surety." To the same effect is McCarty vs. Gordon, 4 Wharton, 321. In Haynes vs. Synnott, 160 Pa., 180, it was said by Mr. Justice Fell: "As this is a contract of suretyship no previous demand of the principal was necessary." In Lisky vs. O'Brien, 4 Watts, 141, it was said by Justice Sargeant: "A surety is equally bound with the principal to punctual performance when he enters into an engagement for the absolute payment of money at a future day." In Supplee vs. Herrman, 16 Pa. Superior Ct., 45, Judge Rice said the lower court had properly stated the law, as follows: "A surety is undoubtedly primarily liable on his covenant, and may be proceeded against without recourse to him for whom he has engaged to answer." A principal need not be pursued to insolvency before proceeding against the surety. Allen vs. Hubert, 49 Pa., 259. A contract of guaranty is an engagement to pay in default of solvency in the debtor, provided due diligence be used to obtain payment from him. A contract of suretyship imposes on the surety a direct liability to the creditor for the act to be performed by the debtor, from the nature of which the undertaking of the surety is immediate and direct that the act shall be done, which if not done, makes the surety responsible at once. Reigart vs. White, 52 Pa., 438. "Suretyship always implies original undertaking, and the measure of liability in such case is the extent of the principal's liability. A surety assumes to perform the contract of the principal debtor, if the latter should not, and the undertaking is immediate and direct that the act shall be done, which if not done, makes the surety responsible at once." Pittsburgh Construction Company vs. West Side Belt Railroad Company, 227 Pa., 90; See also, King vs. Blackmore, 72 Pa., 347; Riddle vs. Thompson, 104 Pa., 330; Philadelphia & Reading Railroad Company vs. Knight, 124 Pa., 58; Campbell vs. Sherman, 151 Pa., 70. The fact that there were two sureties on the note in this case does not prevent an action against one of them alone. The note by its terms was a joint and several undertaking. It says "we or either of us promise to pay" as therein stipulated. "If the principal and sureties are bound jointly, they should be joined as defendants; and the fact that the word 'surety' is added after some of the signatures does not alter the rule. If the principal and |