Koch v. County of Schuylkill , 1900 Pa. Super. LEXIS 276 ( 1900 )

Opinion by

Beaver, J.,

The Act of April 2, 1863, P. L. 249, provided that “ the county of Luzerne shall pay all legal costs of the officers of the courts of quarter sessions and oyer and terminer, including the fees of the district attorney, in all criminal prosecutions in said county, whether of misdemeanor or felony.” The provisions of this act were, by the Act of January 22, 1869, P. L. 100, extended to Schuylkill county, and, in a proviso, it was enacted that “ the same shall apply to the costs of the officers therein named in prosecutions in which a nolle prosequi has been entered by leave of court since September the first, Anno Domini, one thousand eight hundred and sixty-eight.” The Act of April 12,1866, P. L. 103, provides, “ that, in lieu of the fees now allowed by law, the district attorney in and for the county of Schuylkill, inter alia, shall receive for. . . . ‘a case settled with leave of court, five dollars.’” These acts taken together fix a liability upon the county of Schuylkill for the fees of the district attorney in all such cases as were settled by leave of court of $5.00 each, and as to these the county commissioners undoubtedly had the right, by their agreement with him, to bind the county. The liability of the county in such cases, however, attached without any action upon the part of the commissioners. As to settled cases, therefore, there is no doubt of the plaintiff’s right to recover the fee of $5.00. By a settled case, of course, is meant one which is settled in accordance with the provisions of the act of assembly by consent of the prosecutor, the defendant, and by leave of court. The entry of the nolle prosequi in such a case does not take it out of the category of settled cases, if the other facts necessary to constitute it such appear of record.

The act of 1869, supra, relating to Schuylkill county, provides for the payment of the costs in all cases in which a nolle prosequi has been entered by leave of court, but the amount of the fee of the district attorney in such cases is not fixed. As to these cases the officer who faithfully discharges his duty is surely not to be deprived of all compensation, because of the silence of the act as to amount. He is to be paid, but paid how much? Surely not less that the minimum fee allowed by law for the prosecution of other cases, which is $5.00. When, therefore, an indictment has been regularly found and a judgment of nolle prosequi duly entered, such a fee should be allowed as has been, so it seems, the universal practice heretofore since the passage of the act of 1869. As to nolle prosequi cases, entered before indictment found, where the case is not settled in the manner above stated, the ruling of the court below w;as correct. As the case goes back on other grounds, we indicate this as a proper basis of fixing the fees of the plaintiff, although we might not have felt it our duty to reverse the court below upon the first, second and third assignments of error relating to this subject, if they stood alone.

Interest has been defined to be “ the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.” “ It is completely due whenever a liquidated sum of money is unjustly withheld. It is a legal and uniform rate of damages allowed in the absence of any express contract, when payment is withheld after it has become the duty of the debtor to discharge the debt:” Kelsey v. Murphy, 30 Pa. 340; Minard v. Beans, 64 Pa. 411. Whatever amount was due the district attorney from the county at the time of the expiration of his term of office would bear interest, after demand made upon the commissioners for payment. It would seem, from the testimony of the plaintiff, which is not controverted, that he made demand for the payment of what was due him in January, 1893, and that the commissioners refused to pay anything. He was, therefore, entitled to interest upon whatever amount was found to be due at the time of the trial from the date of demand. As to a portion of the demand there was no dispute or denial. The law gave him interest as a compensation for the detention of money which rightfully belonged to him and it was, therefore, error for the court to leave the question of whether or not interest should be allowed to the jury. The only question in this behalf for their determination was the amount, and that depended entirely upon the amount found to be due at the date of demand and refusal. The fourth and fifth assignments are, therefore, sustained. Judgment reversed and a new venire awarded.

W. D. Porter, J., dissents as to allowance of fees in nolle prosequi cases after indictment.