KFP way 2354 Cornell Law School Library NEW COURT RULES. RULES TO REGULATE THE PRACTICE OF THE SEVERAL COURTS IN THE 3 / (Fare. JUDICIAL DISTRICT OF PENNSYLVANIA, REVISED, COLLATED AND ARRANGED BY Ww. Ww. S 3S HUYWYTUER, — OF THE NORTHAMPTON COUNTY BAR. ‘PHILADELPHIA: KING & BAIRD, PRINTERS, 607 SANSOM STREET. 1869. Lh aged Entered according to Act of Congress, in the year 1869, by KING & BAIRD, In the Clerk’s Office of the District Court of the United States, in and for the Eastern District of Pennsylvania. CONTENTS. COURT OF COMMON TES i : ORPHANS’ COURT.. wees. BS el aan COURT OF QUARTER SESSIONS. wees sess sssesse ves veces 99 SPRUE MEN TU LAT wesanasussh eevindasecsharuiedas waevandayineaniatmtas 108 NEW EQUITY RULES. sesssscsssce conse ssssssssvsessesscssssees sostss scenes 158 APP RNID TEs soiecedveeasttees eve INDEX TO SUPREME COURT ....scssssesssess essessseeessesssssessassse 289 INDEX TO COMMON PLEAS, &0.cccssscssssesssesssersssesssescesase see 207 By Act 16 June, 1836, 3 21, P. L. 792, P. D, 162, 3 141, it is enacted that each of the several courts ‘shall Have full power and authority to establish such rules for regulating the practice thereof respectively, and for expediting the determi- nation of suits, causes, and proceedings therein, as in their discretion they shall judge necessary or proper;' provided, that such rules shall not be inconsistent with the Constitution and laws of this Commonwealth.” But every court of record has an inherent power to make rules for the transac- tion of its business, such rules not being contrary to the laws of the land; 3 B. 277; 8S. &R. 336; 7 W. 653 1 J, 4053 4 Cas. 517. Each court is the best exponent of its own rules, and an alleged mistake, in this particular, must be very obvious to induce a court of error to reverse for that reason alone; 3 H. 128; 1 P. F. S. 71, : The court below will be reversed, however, for disregard of its rules; 9 Barr, 53. It is better to have no rule than to depart from it on slight or frivolous pretexts, or to suit the emergence of a particular case; 2 Barr, 88. There would be no safety if courts were permitted to depart from their plain, written, express rules; § Barr, 279. But acourt ought not to enforce its rules so strictly as to produce injustice; 17S. & R. 264, 1869. PRESIDENT FUDGE: HON. A. BROWER/LONGAKER. NORTHAMPTON COUNTY. ASSOCIATE FUDGES: HON. JOSEPH LAUBACH, ' . HON. RICHARD N. MERRILL. ATTORNEYS: CHARLES DAVIS, PETER IHRIE, M. HALE JONES, HENRY D. MAXWELL, EDWARD J. FOX, H. MELRICK MUTCHLE, HENRY GREEN, OLIVER H. MEYERS, HENRY F. STECKEL, GEORGE W. STOUT, VALENTINE HILBURN, WILLIAM H. ARMSTRONG, WILLIAM W. SCHUYLER, ABRAM S. KNECHT, JAMES M. PORTER, LEWIS H, STOUT, . ELISHA ALLIS, THOMAS H. LEARY, URIAH SANDT, COUNTY SHRP juiemcierstinan seas arcanoene nemdannae ProTHONOTARY.. Crerx Orpuans’ Court... CLERK QUARTER SESSIONS... ....+45 REGISTER saves ees ccupseddaeausasciiveian sieeve es a Vay. & fortes ul fp of. hom ene JS # ot utemttey CALVIN G. BEITEL, JAMES W. LYNN, FRANCIS V. BARNET, WILLIAM BEIDELMAN, WILLIAM E, DOSTER, ROBERT I, JONES, WILLIAM C. EDELMAN, STEPHEN V. B. KACHLINE, JAMES K. DAWES, WILLIAM S. KIRKPATRICK, ‘'W. GIBSON FIELDS, BEATES R. SWIFT, ALFRED CRIST, HENRY L. BUNSTEIN, HOWARD J. REEDER, HOWARD BURKE, JOHN C. MERRILL, WILLIAM HACKETT, Jr, HENRY W, SCOTT. OFFICERS: bikes GEORGE W. WALTON, 20.97) *« ..URIAH SANDT. .’ weC. M. ANSTETT. | ..MARTIN FREY, ..REUBEN P. MICKE. qi pirei orn i fs t = 1869. PRESIDENT JUDGE: HON. A. BROWER’/LONGAKER. NORTHAMPTON COUNTY. ASSOCIATE FUDGES: HON. JOSEPH LAUBACH, t HON. RICHARD N. MERRILL. ATTORNEYS: CHARLES DAVIS, PETER IHRIE, M. HALE JONES, HENRY D. MAXWELL, EDWARD J. FOX, H. MELRICK MUTCHLE, HENRY GREEN, OLIVER H. MEYERS, HENRY F. STECKEL, GEORGE W. STOUT, VALENTINE HILBURN, WILLIAM H. ARMSTRONG, WILLIAM W. SCHUYLER, ABRAM S. KNECHT, JAMES M. PORTER, LEWIS H. STOUT, . ELISHA ALLIS, THOMAS H. LEARY, CALVIN G. BEITEL, JAMES W. LYNN, FRANCIS V. BARNET, WILLIAM BEIDELMAN, WILLIAM E. DOSTER, ROBERT I. JONES, WILLIAM C, EDELMAN, STEPHEN V, B, KACHLINE, JAMES K. DAWES, WILLIAM 8. KIRKPATRICK, W. GIBSON FIELDS, BEATES R. SWIFT, ALFRED CRIST, HENRY L, BUNSTEIN, HOWARD J. REEDER, HOWARD BURKE, JOHN C. MERRILL, WILLIAM HACKETT, Ir. 1869. “PRESIDENT ¥UDGE: A. BROWER-LONGAKER. PAu Gi berg h aoe LEHIGH COUNTY. HON. ASSOCIATE FUDGES: HON. JAMES FRY, ATTORNEYS: a SAMUEL A. BRIDGES, {. ~ PETER WYCKOFF, gL ROBERT E. WRIGHT, gt HENRY C. LONGNECKER, a JOHN D. STILES, . NATHAN MILLER, & {CHARLES M. RUNK, i CHARLES W. COOPER, 1 N EDMUND J. MORE, % ELISHA FORREST, a ADAM WOOLEVER, ‘ \ o/,. JOHN H. OLIVER, We WILLIAM H. AINEY, * gy GEORGE B. SCHALL, a gl R. CLAY HAMERSLEY, ~~ EVAN HOLBEN. EDWIN ALBRIGHT, JACOB S. DILLINGER, Ww ProTHONoTaRY., / CLERK Orpuans’ Court... “ LERK QuarTER Sessions,; EGISTER. ety, ene woes SHERIFF ...000 sescenes tdeeran eae ceneen seeeeseee coe ees seeees JOHN P. MILLER, | mS Pee at HON. DAVID LAURY. THOMAS B. METZGER, F, A. & BALDWIN, MAHLON H. BIERY, 7+ WILLIAM H. SOWDEN, ; JOHN RUPP, EDWARD HARVEY, 5 LEVI SMOYER, vos WILLIAM H DESHLER, poe CONSTANTINE J. ERDMAN, 7 CLELI G. SCHWARTZ, e DAVID. ROPER, ws HENRY C. HUNSBERGER, ‘+ WILLIAM H. GLACE, \ ”*~) SAMUEL A, BUTZ, WILLIAM D. LUCKENBACH, @UGEORGE H. RUPP. ROBERT E. WRIGHT, Jz., JAMES S$. BIERY, COUNTY OFFICERS: ‘ ..ESAIAS REHRIG. GEORGE W. aRTeEL Sos ae ..JACOB E, ZIMMERMAN. inlansciscirsosaniy BAMITEL R. BNOLEMAN.£ 8 fv eee ssssereaee SILAS CAMP, Wert. Nihon p> bares RULES OF THE COURT OF COMMON PLEAS. RULE 1. ACCOUNTS OF ASSIGNEES AND TRUSTEES. § 1. The prothonotary shall give notice of the How notice filing of all accounts of assignees and trustees by eionnia of advertisement, at least once a week during the fiero be four weeks immediately preceding the court at which such accounts shall be presented for allow- ance and confirmation, in one English and one German newspaper, published in the county, set- what the ting forth that at a certain time and place therein 2080"! named said accounts will be allowed, unless cause be shown to the contrary. § 2. On the day fixed in said notice said accounts when said accounts shall be confirmed nisi; and, unless exceptions be willbe , filed or an auditor is moved for within twenty “” Ba days thereafter, the same shall be confirmed abso- lutely. It is ordered that the cost of advertising advertising the notice be paid by the assignee or trustee, for ae which he shall be allowed credit in his account. 2 10 COMMON PLEAS. § 3. Admissions for Purposes of Trial. 84. RULE 2. ADMISSIONS FOR PURPOSES OF TRIAL.! Proof of § 3. In actions by or against partners it shall not partnership a “a : need not be be necessary for the plaintiff on the trial to prove the partnership, but the same shall be taken to be admitted as alleged on the record, unless one or more of the defendants shall, by affidavit filed with ae or before the plea entered by him or them, deny defendant the existence of the partnership as alleged, and denies thi Partnership state to the best of his or their knowledge and ’ belief whether there is any partnership in relation to the subject matter of the action, and if any, who are the parties thereto. Excention of § 4. In actions upon deed, bond, or other instru- need not bo Ment of writing, a copy of which shall be filed moves within twenty days from the return day of the writ, it shall not be necessary for the plaintiff on the trial to prove the execution thereof, but the tates the SMe shall be taken as admitted, unless the defeud- execution is ant, by affidavit filed with or before the plea oath. eutered by him, shall deny that the same was exe- cuted by him or by his authority. 'Odenheimer ». Stokes, 5 W. & 8. 175. ‘The courts have power to establish rules requiring a defendant, by his affidavit, to deny the execu- tion of the instrument on which the suit is brought, and in suits by or against partners, to deny the existence of the partnership, or otherwise the plaintiff need not prove them on the trial.” COMMON PLEAS. 11 § 5. Admissions for Purposes of Trial, § 6. § 5. In actions upon promissory notes or bills of signaturesto notes and exchange, a copy of which shall be filed within bits tobe twenty days from the return day of the writ, it proved. shall not be necessary on the trial to prove the handwriting of the makers, drawers, endorsers, or acceptors thereof, but the same shall be taken to be admitted, unless the defendant? shall, by affida- 5. joc their vit filed with or before his plea, deny that the same geyzineness is the proper handwriting of said parties. This “°° and the preceding rule shall apply in cases of set- ott, mutatis mutandis, the defendant filing a copy of the instrument with or before the plea entered by him, and the plaintiff his affidavit of denial within twenty days after notice. ' § 6. In actions where the demand may be proved Copies of by books of original entry, if the plaintiff shall file, otiginal a entries Wl within twenty days from the return day of the be admittea : ays % in evidence. writ, a copy of Ais account as taken from his books of original entry, including the items, if any, on the credit side thereof, and the whole verified by affidavit, the samé shall be admitted as evidence Unless on the trial, unless the defendant, by affidavit filed under o# with or before the plea entered by him, shall state (ern gf that he had no such dealings with the plaintiff as ’°** those stated in the account filed, or that he verily believes the production of the plaintiff’s books on the trial to be necessary to a just decision of the gameruteto cause. This rule, mutatis mutandis, shall apply in $PP7 J? cases of set-off, the defendant filing a sworn copy derenuaxt, 2 Hogg ». Orgill, 10 Cas. 344. ‘It is sufficient to put the plaintiff on proof of execution that one of the defendants in his affidavit set forth that the note sued on was not made or given by him, and that he knew nothing about it.”’ 12 COMMON PLEAS. 87%. Admissions for Purposes of Trial. § 9. e Unless plaintiff files counter- affidavit. When the cause of action will be deemed to be admitted. Wickersham v. Russell, 1 P.F.S. 71 When the defence will be taken as admitted. In proceed- ings against railroad companies. Plaintiff ’s allegations admitted uuless denied. Cost of proving execution of ceitain instruments to be paid by opposite party. of his account with or before the plea entered by him, and the plaintiff his counter-affidavit, within twenty days after notice. § 7. If the plaintiff shall file, within twenty days from the return day of the writ, a specification of the items of his claim, and statement of facts neces- sary to support it, verified by affidavit, such items of the claim and material averments of fact as are not directly traversed or denied by the affidavit of defence, shall be taken as admitted. The same rule shall apply to a specification of set-off and statement filed by the defendant, the plaintiff’s counter-affidavit to be filed within twenty days after notice. § 8. In proceedings against railroad companies to recover damages for lands or materials taken, and in other similar cases, the issue shall be formed as follows: The party claiming the damages shall be made plaintiff, and shall file a statement describing the land or materials and value thereof, and aver- ring his estate therein and his damages and any other matter specially directed by the court to be tried. The defendant shall thereupon traverse such material allegations in the statement as he intends to deny, and such as are not so traversed shall be taken at the trial to be admitted. § 9. In actions where either party may wish to give in evidence any written documents not directly put in issue by the pleadings, he shall be entitled, of course, to a rule on the opposite party to admit such documents on the trial of the cause, and if the opposite party or his attorney shall not COMMON PLEAS. 13 § 9. Admissions for Purposes of Trial. § 9. admit in writing to be filed in the cause the alleged. vniess tne execution is documents within twenty days after service of the admitted by writing rule and exhibition of the documents, the court fled. may order such party to pay the costs of making proof thereof, if it shall appear that he has unrea- 0r good reason be sonably neglected to comply with the rule.’ a 3 Where a bill of particulars has been demanded and furnished as bere- inafter provided for, tis and the preceding sections in relation to admis- sions for purposes of trial are of no practical value; but inasmuch as the parties may still elect to proceed to issue and trial by declaration and plea as heretofore, these sections are here inserted as being useful in that state of the record. 14 COMMON PLEAS. § 10, Affidavits of Defence. § 10. RULE 3. AFFIDAVITS OF DEFENCE.! When § 10. In actions on recognizances,? judgments,’ jud it : . . maybe mortgages, liens of mechanics and material men, ' The power of the courts, independent of special legislation, to make rules authorizing the entry of judgment for want of an affidavit of defence, was at first stoutly contested, but has since been fully recognized. Van- atta o. Anderson, 3 Binn. 417; Hogg »v. Charlton, 1 Cas. 200, Duncan v. Bell, 4 Cas. 517. And the wisdom and expediency of such rules have been frequently affirmed by the supreme court. Umberger v. Zearing, 88. & R. 165; Bank United States v. Thayer, 2 W. & S. 447; Wilson 2. Hays, 6 H. 357; Hoffman v. Locke,, 7 H. 59; Lord ». The Ocean Bank, 8 H. 387; Yates ». The Borough of Meadville, 6 P. F. 8. 21. The system has been found to be so free from objection that it has. been gradually extended to embrace new subjects. 1 T. & H. 319. But these rules being in derogation of the right of trial by jury, will not be extended beyond the letter, nor to cases within the letter but not within the spirit and reason of the law. Boas v. Nagle, 38. & R. 258; Burkhart v. Parker, 6 W. & 8. 482; Yates v. The Borough of Meadville, 6P.F.8. 21. Their object is to prevent delay where there. is no just cause of dispute. Gregg v. Meeker, 4 Binn. 428; Dewey ». Dupuy, 2 W. & 8. 555; Duncan ». Bell, Johnston, Jack & Co., 4 Cas. 517. They do not extend to torts nor to those actions in which the plaintiff has no certain demand. Read »v. Bush, 5 Binn. 457. Nor to executors and administrators, because they cannot be supposed conversant of the facts out of which the defence arises. Moore v. Witmer, 4 Y. 235; Leibert 2. Hocker, 1 M. 263; Read ». Bush, supra. Nor to infants who can appear only by guardian. Ib. But see Charlton v Alleghany City, 1 G. 208. Nor to an insane man or his committee. Alexander 9. Ticknor, D. C. C. P., 7 Leg. Int. 199. ? A recognizance in the orphans’ court to secure the payment of a dis. tributive share, is within the rule. Slocum 2. Slocum, 8 W. 367. So is a recognizance forfeited in the quarter sessions. Com. v. Boult, 1 Brown, COMMON PLEAS. 15 § 10. Affidavits of Defence. § 10. municipal claims, transcripts from the orphans’ enterea for want of court, policies of insurance, book accounts, bonds,‘ an affidavit bills, notes, and other instruments of writing for ‘ the payment of money;> and in all actions on con- tracts for the payment of money, either express or implied, and whether the same be in writing or not; and in appeals from the judgments of justices of the peace: if the plaintiff shall file, on or before the return day of the writ, or in cases of appeal, on praintig to or before the first day of the term to which the ftatement of appeal is entered, an affidavit’ stating the amount “*°*™ 237; Harres v. Com., 11 Cas. 416. So a recognizance of bail in error. Baker v. Olwyne, 2 M. 405. A recognizance of special bail has been held not to be within the rule. Stokes v. Sayre, 1 M. 28. Because a defence might depend on acts of the plaintiff or defendant, or sheriff as well as of the obligor, in the bond of which he might not be informed. Slocum ». Slocum, 8 W. 368; Burkhart ». Parker, 6 W. & 8. 482. But the act 12 March, 1842, § 2, P. D. 387, § 11, authorizing the district court to enter judgment for want of an affidavit of defence, in actions on bonds of sureties for stay of execution, on bonds or recognizances of special bail, and on bonds by sureties conditioned to apply for the benefit of the in- solvent laws, would indicate that there is nothing in the policy of the law to prevent the extension of the rule to embrace these subjects. 3 This includes actions on foreign judgments. McCleary v. Faber, 6 Barr, 476; Hogg ». Charlton, 1 Cas. 200; Moore »v. Fields, 6 Wr. 471; Luckenbach v. Anderson, 11 Wr. 123. i 4 The rule does not apply to a replevin bond. McFate a. Shallcross, 1 Phila. 40. Nor to a bail bond. Boas v. Nagle, 3 8. & R. 253; Com. ». Heelman, 2M. 405. But cee note (2) supra, and Christy ». Bohlen, 5 Barr, 88. See also 1 T. & H. 322, as to the present rule of construction in the district court of Philadelphia. ie 5 It is not deemed necessary to insert here references to the numerous decisions as to what are and what are not such instruments of writing for the payment of money as will authorize the entry of judgment for ‘want of an affidavit of defencce, since the much more comprehensive terms of the rule in the text render these decisions of little, if any value. 6 The cause of action need not be set out with technical precision. epinn er Ay a auphherntot age ¥ a ee £ Z Apes i Os y Ce CL Go Petes & ye we a bee “fa , Gb Paes Gre ‘ee. Due nse Sf) ee is 2S oS Sate AT. Se 16 COMMON PLEAS. § 10. Affidavits of Defence. § 10. What he verily believes to be due from the defendant, plaintiff ’s statement together with a copy’ of the book entries® or instru- must . els contain, ment upon which the suit is brought, or where the claim is not evidenced by writing a brief of the same, verified as aforesaid, he shall be entitled to judgment® without filing a declaration, at any Phila. Sav. Ins. 7. Smith, 10 Barr, 14. If the averments are obscure, the defect being pointed out, plaintiff may amend. Bank United States 2. Thayer, 2 W. & S. 448. But counter-affidavits by the plaintiff will not be admitted. 2 Wh. Dig. 489, § 204, 1 Troub. & Haly, 332. Plaintiff’s affidavit is not, like a bill of particulars, to be regarded as fixing the nature of the case, but is meant for a special purpose, and is exhausted when that purpose is accomplished. 2 Wh. Dig. 490, § 220. Its object is two-fold: to give notice to the defendant of the precise subject of suit, and to enable the court to see that the claim is within the rule. Knapp 2. Oil Company, 3 P. F. 8. 190. 7It is a sufficient ground for an affidavit of defence that there is a variance in any matter of substance between the original and the copy. 2 Wh. Dig. 498, § 265. The proper practice, where there is a variance between the copy filed and the original, is to call for the production of the original. 1 T. & H. 386. The rule directing a copy to be filed is im- perative, and a compliance with it must appear, in order to sustain the judgment predicated of it. Knapp ». Oil Co., 3 P. F. 8. 188. If the affi- davit sets out a contract for the payment of money which appears to be founded on a writing, a copy of which is not filed, or if filed, does not show such a contract, judgment will be witNheld. Ibid, 185. Several cases recognize a plaintiff’s right to add a statement to the copy. Imhoff ». Brown, 6 Cas. 506; Bank of the United States 0. Thayer, 2W. &S8. 443; Dewey v. Dupuy, 2 W. & 8. 5538. But in view of all the decisions it would seem the better practice to confine the plaintiff to his copy and a statement respecting the extent of his claim, and his right to sue. Imhoff 7. Brown, 6 Cas. 506. 5 The paper filed must purport, on its face, to be a copy of the plaintiff’g book of original entries. Benill v. Burgin, 2 Wh. Dig. 490, § 225; hence, a copy of ledger entries is not a compliance with the rule, and does not entitle the plaintiff to judgment. Hamill v. O’Donnell, 2 M. 101. ° The judgment is final, and the subsequent assessment of damages relates to the date of the entry. McClung 2. Murphey, 2 M. 177, 1 T. & H. 327; Sellers . Burk, 11 Wr. 344. The court’ will open the judgment on equitable terms, if the defendant offers an ample excuse for not putting COMMON PLEAS. 17 § 10. Affidavits of Defence. § 10. time” after twenty days from the return day of within what the writ, or in cases of appeal, from the first day prasfents of the term to which thé appeal is entered, unless eo the defendant" shall have filed an affidavit of de- fence, setting forth fully the nature and character of the same.” in his defence, and swears to a good defence, provided there has been no unreasonable delay. Martin v. Hall, 1 Phil. 233; Barbe v. Davis, 1 M. 1183 Wilson ». Hayes, 6 H. 357. If judgment be entered too soon, the irregu- larity will be cured by entering bail for stay of execution. Harres o. Com., 11 Cas. 416. 10 If the affidavit of defence is filed at any time before judgment, it is, sufficient, for judgment cannot be taken for want of an affidavit, when + there is one. Gillespie ». Smith, 1 H. 65; Wilson ». Hayes, 6 H. 257. The defendant has the whole of the last day to file his affidavit, although judgment has been entered and execution issued. Duncan ». Bell, John- ston, Jack & Co., 4 Cas. 516. If an inspection of books or papers in the possession or control of the plaintiff is necessary to enable the defendant to prepare his affidavit of defence, he should ask for suspension of judg- ment until the inspection is allowed, and the court will grant the appli- cation. Lord ». The Ocean Bank, 8 H. 384. 1! The rule requires the defendant to file, not make the affidavit. Potts ». Crabb, 2 Wh. 182. Hence, if the affidavit be made by a third person having an interest in the case, it is sufficient. Hunter 2. Reilly, 12 Cas. : 512. 12 «Tt is a nice line to determine how far the requisition on the defendant should be pushed, for while it be desirable to prevent a bad man from obtaining time by practising a trick, the conscience of a good man, who has a just defence, ought not to be unnecessarily wounded. Generally it is sufficient if the affidavit set forth facts showing a solid defence, which can probably be established. It is not necessary that in such a paper he should meet by an oath every objection or argument against his case which fine critical skill may deduce.” Leibersperger 0. The Reading Savings Bank, 6 Cas. 582; Thompson ». Clark, 6 P. F. 8. 84. It is suffi- cient if the defendant states a defence with ordinary certainty—certainty to a common intent. Hugg ». Scott, 6 Wh. 277. The affidavit must receive a reasonable construction, and the words used must be understood in their ordinary sense. Roberts ». Austin, 5 Wh. 315. ‘But the affidavit will be construed most favorably for the plaintiff, as it is altogether probable that the defendant will, in all cases, state the 18 COMMON PLEAS. § i. Affidavits of Defence. § 11. Where the § 11. In lieu of a copy of the instrument required action is upon a by the preceding rule to be filed by the plaintiff, record, ‘ % mM meee where the action is upon a record of this court, or upon a mortgage, mechanic’s lien, or recognizance in the orphans’ court, oyer and terminer or quarter sessions, it shall be sufficient if the plaintiff file, Areference With his preecipe or otherwise, a reference to the to place of place where such record or other instrument may record, &c., will suffice, be readily found by the defendant, should he desire without 7 r filing acopy. an inspection of the same. nature and character of the defence as strongly as the facts will justify. We can, at any rate, make no intendments for him. The court have a right to expect a clear and distinct averment of the fact on which the defence must turn.’”? Comly 2. Bryan, 5 Wh. 265. It is not enough to swear to a general allegation of defence without submitting the particu- lars, in order that the court may determine whether the affidavit of defence be in truth what it is called. Stitt v. Garrett, 3 Wh. 283. The facts must be stated and positively averred to exist. If fraud is the defence, it must appear in what it consists. Sterling v7. The Mercantile Mutual Insurance Company, 8 Cas. 78. Where the facts set forth are insufficient in law to prevent the plaintiff’s recovery, the court may give judgment as for want of an affidavit of defence.’ West 0. Simmons, 2 Wh. 261; Rising v. Patterson, 5 Wh. 318; Brown »v. Street, 6 W. & S. 223. Where the circumstances of the case are such that the defendant can- not know with certainty whether he has an available defence or not, he must satisfy the court that he has made diligent efforts to inform him- self, and has failed through no fault on his part. Lord v. The Ocean Bank, 8 H. 384; Moore ». Somerset, 6 W. & S. 262. If averments beyond the instrument of which a copy is filed are set forth by the plaintiff in his affidavit, the defendant may deny them ; if not denied they are admitted, Bank of the United States v. Thayer, 2 W. & 8. 448; The Montour Iron Co. ». Coleman, 7 Cas. 82. Where the facts forming a part of defendant's case are averred upon information and belief, the defendant must add to such averment, that he expects to prove them or set out specially the sources of his information, or the facts on which his belief rests. Black ». Halstead, 3 Wr. 64; Thompson ». Clark, 6 P. F. 8. 34. The object and effect of an affidavit of defence are complete when the plaintiff is compelled to go to trial, 1 T. & H. 333. Thus the averments therein will not obviate the necessity of notice of special matter under the plea of the general COMMON PLEAS. 19 § 12. Affidavits of Defence. § 12. § 12. If the plaintiff omit to file his statement of wnen : > plaintiff's claim or reference as aforesaid on or before the re- statements . . not e turn day of the writ, or in cases of appeal, on or until after 6 return before the first day of the term to which the ap- dy. peal is entered, he may nevertheless take judgment at any time after twenty days notice to the de- Hemay take judgment fendant or to his attorney of record in the suit of after twenty days notice, the filing of the same, unless an affidavit of defence as aforesaid be filed. issue. Sullivan o. Johns, 5 Wh. 369; Finlay ». Stewart, 6 P. F. 8. 183. But such averments may be used against the defendant on the trial. Bowen v. De Lattre, 6 Wh. 480. The defendant is not bound to file an affidavit of defence, where it appears from the plaintiff’s own showing that he has no cause of action. Thomas v. Shoemaker, 6 W. & S. 183. In the following cases the affidavits of defence were held to be sufficient : Trons v. Miller, 7 W. 562; Hugg ». Scott, 6 Wh. 274; Com. . Fritz, 2 M. 336; Maples ». Hicks, 8 P. L. J. 19;. Carman v The Franklin Fire In- surance Co., 6 W. & §. 155; Christie v. Bohlen, 5 Barr, 38; Foicheimer 2. Feistmann, Bright. 87; Christie v. Craig, 8 H. 480; Mahon ». Gormley, 12 H. 80; Gallinger v. Horn, 1 G. 59; Hutchinson v. Boggs & Kirk, 4 Cas. 294; Imhoff v. Brown, 6 Cas. 504; Hogg v. Orgill, 10 Cas. 344; Hunter ». Reilly, 12 Cas. 509; Thompson 2. Clark, 6 P. F. 8. 33; 2 Wh. Dig., Title “‘ Practice,” §§ 208, 277, 284, 294, 302. In the following cases the affidavit of defence was held tc be insuffi- cient : Knox v. Reeside, 1 M. 294; Hill ». Bramall, 1 M. 352; Ogden a. O’Hennan, 2 M. 40; Clapier ». Maupay, 2 M. 187; Dows v. White, 2 M. 140; Norman »v. Hope, 2 M. 142; Harris v. Mason, 2 M. 270; Rockhill 2. Burden, 3 P. L. J. 20; Irons ». Miller, 7 W. 562; Bacon ». Sanders, 4 Wh. 148; Zeibert v. Grew, 6 Wh. 404; Dewey o. Dupuy, 2 W. & 8. 553; Brick v. Coster, 4 W. & S. 494; Brown ». Street, 6 W. & S. 222; Moore ». Somerset, 6 W. & S. 262; Hill v. Gaw, 4 Barr, 493; Wilson 2. Hayes, 6 H. 354; Lord ». The Ocean Bank, 8 H. 384; Cochran ». Shields, 2 G. 487; The Montour Iron Co. ». Coleman, 7 Cas. 80; Bryar v. Harrison, 1 Wr. 233; Black v. Halstead, 8 Wr. 64; Coil 0. The Pittsburg Female College, 4 Wr. 489; Wood ». Watkins, 4 Wr. 458 ; Blackburn ». Ormsley; 5 Wr. 97; Frank v. McGuire, 6 Wr. 77; Luckenbach v. Anderson, 11 Wr. 123; Dixey’s Executors v. Laning & Sill, 18 Wr. 148; Anspach o. Bast, 2P. F. 8. 356; Marsh v. Marshall, 3 Ib. 396; The Phila. & Balt. R. R. 20 COMMON PLEAS. § 18. Affidavits of Defence. § 14. amaavit of § 18. In all cases where an affidavit of defence aa i required by these rules, it shall state whether defence is to wholeor the defence is to the whole or a part of the plain- part of eliuim, tiff’s claim, and if to a part only, it shall state to what part; and all items of the plaintiff’s claim Piaimtig not traversed or denied, shall be taken as confessed. mmay take may tek or The plaintiff may take judgment for such part of waititea to his claim as may thus be confessed to be due, which bedue, judgment for purposes of lien and execution shall teat: DE final, but shali not be deemed a bar to the re- proceed or eovery by scire facias thereon of any balance which by scire jicas ‘aay be justly due the plaintiff.'s May take § 14. In actions against one or more of several judgment . a against one ODligors, copartners or promissors, or the endorsers or more of . several Of promissory notes, where one of the defendants frenee files an affidavit of defence, admitting a certain amount to be due as his individual debt, and the plaintiff takes judgment against him for this amount, or if ene or more of several co-defendants suffer judgment to go against him or them for juigmentto want of any or a sufficient affidavit of defence, the probeedinne judgment so entered shall not be a bar to further thers, proceedings in the same suit against the other de- fendant.! Co. v. Johnson, 4 Ib. 127; Stoddard v. Robinson, 4 Ib. 386; 2 Wh. Dig., Title ‘‘ Practice,”’ $$ 278, 280, 281, 282, 283, 298, 299, 300. 8 The hardship of the rule of law which debars a plaintiff from pro- ceeding for the balance of a just claim, if he accept judgment for a part, has long been felt by the bar. And yet it cannot be denied that there is great force in the reasoning of Judge Stroup in Brazier . Banning, 8 H. 3847, where he demonstrates the inconsistency of having two final judg- ments in the same action. To remedy the hardship and at the same time keep the rule “‘up to the line of technical congruity,” this latter clause has been added, which it is believed will obviate all difficulty. 4 In the absence of a rule like the one in the text, the district court of COMMON PLEAS. 21 8 15. Affidavits of Defence. § 1%. § 15. Where an affidavit of defence is filed and where : . . iy affidavit of the same is defective in matter of substance, the defence ia efective court on motion, or after hearing on rule granted, adepiont will enter judgment for.the plaintiff for want of a entered. sufficient affidavit of defence,’ reserving the right Te court to receive supplemental affidavits" when necessary supplemen’l a ‘ affidavits, to prevent injustice. § 16. "The plaintiff shall not be deemed to have tntering rule to waived his right to judgment for want of an affi- establish, _ : ° ‘ 3 &c , not to be davit of defence by reason of his having entered a 4 waiver. rule to plead. Nor shall a rule of reference, or any proceedings under it, be considered as such a waiver, unless before the time for filing an affidavit of defence has expired an award in the suit shall have been filed in favor of the defendant. § 17. Where judgment is taken for want of an jldyment Philadelphia, held in Welsh . Hirst, 1 Phila. 50, that in a joint action against a partnership where one of the partners files an affidavit of de- fence admitting a certain amount to be due as his individual debt, and plaintiff takes judgment against the partner for the amount so admitted, such judgment is a bar to further action against the other defendants. 15 See West v. Simmons, 2 Wh. 261. 16 A supplemental affidavit stating a sufficient defence is in time, though filed after the argument, but before judgment. Bloomer ». Reed, 10 H. 51. The practice is to allow a supplemental affidavit to be filed in those cases where a defendant may, through some mistake of fact or law, have erred in his estimate of what is sufficient to set out. Riley v. Bullock, 2 Wh. Dig. 492, § 251. 7 See Lusk ». Garrett, 6 W. & 8S. 89; Hoffman »v. Locke, 7 H. 57; O’Neal v. Rupp, 10 H. 397; Taggart ». Fox, 1 G. 190; Duncan ». Bell, Johnston, Jack & Co., 4 Cas. 516. 18 Some such provision as that in the text would seem to be required, in view of the decision of the supreme court in Philadelphia Savings Insti- tution ». Smith, 10 Barr, 18, approved in Knapp ». Oil Company, 3 P. F. 8. 192, that if no affidavit of defence has been filed, a judgment will not 22 COMMON PLEAS. § 18. Affidavits of Defence. § 18. hasbeen affidavit of defence, where the same is not auth- - taken ina 5 - s case not orized by these rules, the court will, on motion, aulnorize by these strike off the judgment so entered, upon affidavit rules, : . being made that the defendant has a just defence to the action upon the merits. Attorneyor § 18. The affidavits required in the foregoing makethe’ ules may be made by the agent or attorney of necessary afidavits, either party, where such agent or attorney is suffi- ciently conusant of the facts constituting the Ifheknows cause of action or defence, or believes them to be the facts. true. be reversed because the instrument, a copy of which was filed, was not such as entitled the party to judgment. Of this decision Judge Suars- 00D, in McFate 2. Shallcross, 1 Phila. 41, says, “‘That may be a very good rule for a court of error, but it is not applicable to the district court, where a party has taken an improper judgment.’ See also, 1 Troubat Haly, 826. COMMON PLEAS. 23 § 19. Appeals. § 22. RULE 4. APPEALS, § 19. In appeals from the judgments of justices How appeals of the peace no declarlation shall be required, but issue. ar the prothonotary shall enter the plea of nil debet to the transcript and put the cause at issue; and on }™ Mec the trial the merits on both sides shall be heard “* “* without regard to the form of action or to the pan site to jurisdiction of the justice. ee § 20. If there is no appearance for the plaintiff When non- within three calendar months from the first day of entered ; the term to which the appeal is entered, the pro- thonotary shall enter judgment , of nonsuit and f whee hore yy aed issue execution for the costs. aa rhe § 21. When the cause is called for trial, if the wnen appellant does not appear, the court will on motion ate: not’ appear at of the opposite party enter judgment for the same trial. amount as that given by the justice, with interest. § 22. Where bail for an appeal from the judg- Appetioe ment of a justice of the peace has been entered, it trauseript of shall be competent for the appellee to file a transcript os of the record of the justice in the prothonotary’s office, with the same effect as if filed by appellant. 24 COMMON PLEAS. § 23. Arbitrations. § 26. RULE 5. ARBITRATIONS. Whenrule § 28. If arbitrators are not chosen at the time ae specified in the rule, or if chosen, the day of meet- saralikath ing has been suffered to go by without a quorum being present, the prothonotary may strike off the rule at the cost of the party entering it, unless the attorneys otherwise agree. Scsst § 24. When either party desires to except to an ixceptions Fs . foawards _ award of arbitrators, the exceptions must be filed Iweuty days Within twenty days from the filing of the award, and must be accompanied by an affidavit as to facts not appearing upon the face of the proceed- ings. Where § 25. In appeals from awards if bail is entered ee which the appellee deems insufficient, he may been given. within twenty days after the time allowed for ap- peal give the appellant or his attorney written notice that he excepts to the bail; whereupon the appellant shall within twenty days after said notice justify the bail before the prothonotary, giving the appellee or his attorney five days notice, in default whereof the bail shall be deemed insufficient, and on motion the appeal will be dismissed by the court. COMMON PLEAS. 25 & 26. Arguments. § 28. RULE 6. ARGUMENTS. § 26. The prothonotary shall, within five days when é prothonota’y after the adjournment of the regular term of court, to make out rgu: t make out an argument list on which all matters iste for argument shall be put down under their proper titles, and the list so made out shall be sufficient notice to all parties in interest. § 27. The court will at each term appoint an when . < adjourned adjourned court for arguments, to be held prior to courts for the next succeeding term, when all causes on the tobe hued. argument list which either party may call for argument shall be heard and determined, unless sufficient cause be shown to the contrary. Where the court may not have sufficient time to dispose : of all the cases on the list, arguments will be heard Sel eaiinds in the following order: 1st. Motions for new trials Teerde and in arrest of judgment; 2d. Motions involving the distribution of money in court; 8d. Other matters requiring festinum remedium. § 28. Upon rules to show cause of action or to who sna dissolve foreign attachments, the party who is to bedianise show cause shall begin and conclude. In all sion." other cases the party obtaining the rule shall begin and conclude. The. testimony of witnesses, when necessary, shall be taken by depositions in writing, and no witness shall be examined at the yo witnesses bar in connection with any matter on the argument fies ie” list, unless by special order of the court. i 3 26 COMMON PLEAS. § 29. Artists. § 30. RULE 7. ARTISTS. When the § 29. In actions of ejectment, and in all actions spasm 0 trespass or case affecting real estate, either party artist. Artists must subscribe an oath to be tiled in the cause, may on motion, with notice to the opposite party or his attorney, have an artist appointed to make such examinations, surveys, measurements, calcu- lations, drafts, and briefs of title, as may truly ex- hibit the subject of dispute to the court and jury, the expense whereof, when reasonable and neces- sary, shall be taxed and allowed in the bill of costs. § 30. The person so appointed, before entering upon his duties, shall take and subscribe an oath that he will impartially, and to the best of his skill and judgment, do and perform all things enjoined and required of him under his said appointment, which oath shall be filed in the cause. COMMON PLEAS. 27 § 31. Attachments. § 33. RULE 8. ATTACHMENTS. § 31. Where debts overdue are attached, the where over- court will, on motion of any party in interest, make Se ateaad such order in relation thereto, that the same may be put in course of collection; or the garnishee garmishee may at any time pay the money which he admits the taney to be due from him to the defendant into court, “°°” with the same effect as if paid to the parties legally entitled thereto, in default of which he may be held liable to pay interest on the same. The court court win will make special orders for the disposition of the temporary money so paid into court, or of the proceeds of ein such of the attached property as may be directed to be sold. § 82. No order will be made for the sale of oraerforthe property seized under an attachment, unless the ioe plaintiff, or some other person acquainted with the me facts, shall make affidavit that the debt or demand is just, and unless it be made to appear to the court that the property attached is of a perishable or chargeable nature, or that from other causes it would be conducive to justice that it should be turned into money. § 33. If the plaintiff in a writ of foreign attach- when ment does not, within three calendar months after mnay beds judgment, issue a writ of scire facias, and rule the eat defendant to answer as hereinafter provided, the 28 COMMON PLEAS. § 34. Attachments. § 37. court will, if no sufficient cause be shown to the contrary, order the attachment to be dissolved. Raleto - § 84. The prothonotary shall endorse upon every beendorsed writ of attachment execution, and upon every writ of scire facias against garnishees in foreign attach- ments, a rule upon the garnishee to file under oath an answer to the writ, stating whether or not at the time of the service of the attachment upon him, or at any time since, he had in his possession or control any goods, merchandise, moneys, or effects, belonging to the defendant, and if so, the nature, amount and value of the same. On faiture § 35. If the garnishee fails to make answer as Oo answer judgment to aforesaid for twenty days after the return day of ' the writ, judgment for default in proper form shall be entered against him by the prothonotary. If Plaintit | an answer be filed and the same is not satisfactory interoga- to the plaintiff, he may file interrogatories and tories. : enter a rule of course upon the garnishee to answer the same in twenty days or judgment. when | § 86. If after answer filed no further proceedings Iney pat the are had for three calendar months, the prothono- issue. tary may enter the plea of nulla bona, and put the cause at issue. If the plaintiff on the trial obtains When the judgment for a greater sum than the garnishee in garnishee shall pay his answer admits to be due, the judgment shall be the costs. 5 entered with costs. Notice of § 87. In cases of foreign attachment, no bail dissolve shall be taken to dissolve the attachment, without oreign attachment. first giving reasonable notice to the plaintiff or his attorney of the time and place of taking such bail, COMMON PLEAS. 29 § 38. Attachments. § 38. that he may have an opportunity to except to the sufficiency thereof. § 38. In cases of foreign attachment, a rule on ruteto the plaintiff to show cause of action, and why the ofaction attachment shall not be dissolved, may be entered aisaatyas of course in the prothonotary’s office, and made returnable to the next court. "Eh akon aye es 30 COMMON PLEAS. § 39, Admission of Attorneys. § 40. RULE 9. ATTORNEYS. A.—OF THE ADMISSION oF ATTORNEYS. Applicants § 89. No person shall be admitted to practise as to be citizens . és es is . and of i an attorney within the several courts of this judi- ’ cial district, except he be a citizen of the United States, and of lawful age. He shall also, unless already a member of the bar of good standing of some other court of record, have served a regular Period of clerkship under the direction of a practising at- clerkship. ‘Time passed at law school to be credited on first year, Board of examiners, and exami- nation. Application for admis- sion to be mnade at stated terms. Certificate to be signed by all the examiners, torney of this commonwealth for three years, the last two years of which clerkship shall have been actually passed in the office of an attorney residing within this district. If the applicant shall produce proof that he has studied with assiduity at some law school of good repute, he shall receive credit on the first year of his clerkship for the time he has so pursued his studies. + § 40. Every applicant for admission, not a prac- titioner in some other court, shall undergo an examination in the presence of the president judge, by a board of examiners consisting of five members of the bar, to be appointed annually. Application must be made at a stated term of the court, and the applicant at the time his admission is moved for shall produce to the court a certificate signed by all the examiners, that he is sufficiently qualified for admission to the bar, and that they have re- ceived satisfactory evidence in writing of his good COMMON PLEAS. 31 § 41. Admission of Attorneys. § 43. moral character and lawful age, which certificate Evidence of and evidence shall be filed with the prothonotary. Siarscter. If the report of the board of examiners is adverse to the admission of the applicant, no new app:ica- where the applicant is tion from him or on his behalf will be entertained rdectea. for one year thereafter. § 41. Persons who have studied law in some Persons other county of this state, shall first be admitted baer in that county. An attorney of other courts of this commonwealth may in the discretion of the court attorneys of be admitted here without an examination, on the ¢t'this state production of a certificate of the president judge of the court of common pleas of the county wherein such person has last practised, that he is a practi- May be sing attorney of said court, and of good moral teeca. character, which certificate shall be filed of record. Peevtiileate. Such certificate may be dispensed with where the president judge, or any member of this bar in good suring has knowledge of the requisite facts. § 42. The court may also in its discretion admit Admission ttorn attorneys from other’ states, which extend the like from other privileges to the attorneys of this state, upon satis- re factory evidence of their admission into the supreme or superior court of the state in which they last practised, and a certificate signed by the chief Aust be of justice or president judge of said court, that they én standing at are of good standing at the bar, and of good moral dacs “character. § 43. No prothonotary, or clerk of the quarter protnono- lerks, sessions or orphans’ court, and no register or recor- gc. not to bs permitted to der, shall be permitted to practise as an attorney practise in the several courts of this county during the 32 COMMON PLEAS. § 44, Duties &., of Attorneys. § 48. Resident _ terms of their respective offices. Nor shall any one subcribe we be admitted as a resident attorney of the said si courts until he has subscribed the fee bill, if any such shall have been adopted by the members of the bar. B—Dettts, &o bP A rrornzys. Attorneys to § 44. It shall be the duty of every practising names, ge, attorney of this court to register with the prothon- oe otary the name, age, and place of residence, of any and every person studying law under his direction, and the time of clerkship shall be computed from the date of such registry. Agreements § 45. All agreements of attorneys touching the toveim >” business of the several courts shall be in writing, wees otherwise they will be considered of no validity. No attorney shall become bail in any proceeding in the several courts unless by special leave of the court first had. Punishment § 46. It shall be competent for the members of of fee bill, the bar, for their own protection, to adopt a tariff of fees for their respective counties, any violation of which may be punished as a breach of faith towards the officers of this court. Engagements § 47. No cause on the calendar shall be left open UL dui eys no ground On account of the engagements or absence of coun- , for continu- ance, sel, unless the engagement be on public duty, or the absence frise from sickness. Motions of § 48. All motions made by counsel must be put attorneys to beinwrit- in writing and delivered to the prothonotary to ing. ‘1M . . . be“entered by him upon his minutes. COMMON PLEAS. 33 g 49. Auditors. 52. RULE 10. x AUD ITORS. pick (0 § 49. Auditors shall be members of the bar, and auaitors shall give notice of the time and place of meeting, merapers.of by advertisement in one English and one German dace newspaper printed and published in the county, for pow notice three successive weeks prior to the day of meeting, fe'given unless such notice be dispensed with by agreement of all the parties in interest, or by an order of the court. § 50. Auditors shall keep and return regular auditors : . . : . . shall return minutes of their proceedings, showing their differ- minutes of ent sessions, and the causes of adjournment, if there ma have been adjournments, so that the court may adjust the amount to be allowed for fees and ex- penses, and direct how and by whom the same shall be paid. The testimony, documentary and otherwise, shall be reported separately. § 51. Where facts are controverted, the auditor How shall report his finding there6n in concise form after eT ie the manner of a special verdict ; he shall also state ee concisely the points of law raised before him, and dis opinion thereon. Where an account or schedule now | of distribution is necessary, it shall not be blended oe with other parts of the report, but stated in anon a form as to be conveniently recorded. § 52. It shall be the duty of any person desiring tseus. 34 COMMON PLEAS. § 58. Auditors, € § 55. What 2 necessary to obtain an issue. 1T. & H. 838. Request for issue to be verified by affidavit. Reports to be filed in open court. Confirma- tion of reports. “ee to reports of auuitors. When money may be paid over, Exceptions an issue to present his request in writing to the auditor within five days after the hearing has ‘been concluded, which request shall particularly set forth the nature and character of the facts in dispute, verified by affidavit as to the truth and materiality of such facts; whereupon it shall be the duty of the auditor to make report to the court of the presentation of said request, and shall return the request with the evidence. § 58. All reports of auditors shall be filed in open court, unless it is otherwise directed by the court or agreed upon between all the parties in interest, and public notice of such filing shall be given by proclamation. Upon the filing of the report the same shall be confirmed nisi, which confirmation shall become absolute without further order of the court, unless exceptions to the report are filed oe days thereafter. ' § 54. Exceptions to the reports of auditors shall be accompanied by an affidavit that the same are not filed for purposes of delay, but because it is believed that they raise questions requiring the action and decision of the court in order to prevent injustice. § 55. If no appeal be taken within twenty days after final confirmation of a report, or the entry of a decree distributing money, the money shall be paid over according to the report or decree without further order. ‘ COMMON PLEAS. 85 § 56. Bail. § 58. RULE 11. BAIL. § 56. No bail shall be required in actions of tres- tn certain pass vi et armis, trover and conversion, or in actions ane for slander, malicious prosecution, conspiracy or simdavit false imprisonment, unless an affidavit, stating fully the cause of action, be made and filed before the Bait not to issuing of the writ, and not then in a sum exceed- $1,000, ing one thousand dollars, without a special alloca- pedi era . . “ of the court, tur from the court or a judge thereof in vacation. § 57. Bail for stay of execution shall be effectual pait tor stay for that purpose when the plaintiff or his attorney “°*°""™ is present at the entry thereof and departs without filing exceptions; or when notice of such entry is given to the plaintiff or his attorney, and no ex- ceptions are filed within five days thereafter. If exceptions are filed the defendant shall, within sustifcation twenty days thereafter, justify the bail before the stay ofene: prothonotary, giving the plaintiff or his attorney “"*™ reasonable notice thereof. § 58. In all cases where bail is taken by the pro- gyceptions thonotary, if the opposite party shall deem the (sv Jaken same insufficient, he may except to the sufficiency °"™. thereof; whereupon the party entering the bail shall, within twenty days after notice to him- whenbaitto self or his attorney, justify the bail or add new Papert bail, and justify giving to the opposite party five days’ notice of the time and place of so doing; in 36 COMMON PLEAS. § 59. Bail. § 60. When bail to default whereof the securities shall be deemed in- e@ stricken otf, sufficient and the bail stricken off. Attorneys § 59. No attorney of this court shall be received bait without as bail or surety in any suit, action, prosecution or , proceeding depending in any of the several courts of this county, unless personally interested, with- out leave granted by the court for special cause Norths shown; nor shall the prothonotary, sheriff, or Breuer,” sheriff’s officer become such bail or surety in any action or proceeding in the line of their official duties, without a like permission from the court. Prothono'y § 60. The prothonotary shall be a commissioner to be com- : : : missioner of before whom special and other bail or security may = be taken and justified, with power to administer all requisite oaths, and take the necessary recog- nizances. COMMON PLEAS. 387 § 61. Bills of Particulars. 8 63. RULE 12. BILLS OF PARTICULARS. § 61. A rule may be entered of course on either party to any action to furnish a bill of particulars, and on failure to comply with such rule for twenty days after notice thereof to the party or his attor- ney, the court may enter judgment against the party in default. The plaintiff’s bill of particulars shall contain a full, direct, and concise statement of his cause of action, and the defendant’s a simi- lar statement of the grounds of defence. § 62. On the trial neither party shall be per- mitted to give evidence of facts outside of his bill of particulars. Either party, however, in the dis- cretion of the court, will be permitted to amend his bill, provided that if the motion to amend is made after the cause is on the list for trial, and the opposite party shall allege surprise whereby the cause is continued, the costs of the term shall be paid by the party-asking permission to amend. § 63. If a plaintiff, on filing a statement of his claim under the rules relating to affidavits of de- fence, shall wish to avoid being ruled to furnish a bill of particulars, he shall endorse upon his said statement the words “bill of particulars,” and he shall not thereafter be required to furnish an addi- tional bill. The same rule mutatis mutandis shall apply to defendants. The defendant shall not be ruled to furnish a bill of particulars until the Rule may be entered on either party to file a bill of particu- ars. What bill of particulars must con- tain, No evidence to be received outside of the bill. Parties may amend their bills upon terms. When affidavit of claim may stand for bill. And affidavit of deience, Defendant need not furnish bill until after plaintiff has filed a declaration or an affidavit of ciaim filed. claim. 38 COMMON PLEAS. § 64. Certiorari. § 67. RULE 13. CERTIORARI. when ' § 64. No certiorari shall be a supersedeas unless certiorari willbea the party who obtains it shall enter approved bail peer for the amount of the judgment of the justice and costs; and when bail is so given, the prothonotary shall endorse the fact on the writ. When writ § 65. Writs of certiorari shall be returnable returnable. Within twenty days from the issuing thereof, and shall be served on the magistrate at least five days If not . : ke before the return day. If the magistrate fails to may enter’ make return of the writ as aforesaid, either party may enter a rule upon him to return the same within five days after notice, upon non-compliance with which an attachment will issue. Onretarn of § 66. On the return of a writ of certiorari to a Deentered” justice of the peace, the defendant in error may ou plaintiff : aot ae . tote |, enter a rule of course upon the plaintiff in error omer" to file his exceptions within five days from the service of the rule upon him or his attorney, and if this rule be not complied with, judgment of non pros shall be entered. Diminution § 67. Diminution of record must be alleged be- "fore the commencement of the argument, and it shall be the duty of the party alleging the same to suggest in writing to be filed, in what the record is Ruleupon deficient; whereupon the court, if there has been COMMON PLEAS. 39 § 68. Certiorari. § 69. no unnecessary delay, and it is deemed necessary, justice to : . . make return, will grant a rule on the justice to make a more perfect return and enforce the same by attachment. § 68. Upon ground being laid by affidavit or when otherwise to the satisfaction of the court, a rule dingin ne may be had on the justice to bring his docket con- a taining the original entry of the suit into court for inspection. § 69. The writs of certiorari, attachments, and in case of rules hereinbefore provided for, in case of the death, removal of resignation, or removal of the justice before whom” the proceedings to be reviewed were had, may be served upon any person having the possession and control of his docket and official papers. Where on reversal the judgment entered by the justice is reversed, the ‘ecnterea ” court will enter judgment for the costs which have ae accrued on the writ of certiorari. 40 COMMON PLEAS. § 70. Costs. § 73. RULE 14. COSTS. fia coolant § 70. Where the plaintiff resides out of the state, give security for costs. So with plaintiffs in other suits for special cause shown, Where defendant offers to confess judgment, Costs of term to be paid by party in default. the defendant, upon filing an affidavit that he has a just defence against the whole demand, may have a rule on him of course to enter security for costs within twenty days after notice, and in the mean- time proceedings shall be stayed. Upon proof of default filed the prothonotary shall enter judgment of non-suit. § 71. In all other cases the defendant, after filing an affidavit of defence to the merits, may, on motion for special reasons assigned, supported by affidavit, obtain a rule on the plaintiff to show cause why he should not give security for costs, and upon the hearing of the rule the court will make such order as the special circumstances of the case may seem to require. § 72. If the defendant admits a certain sum to be due, and offers to confess judgment for the same, and the plaintiff declines to accept the offer, then, if the plaintiff fails to recover more than the prin- cipal sum admitted to be due, with legal interest thereon, he shall pay all costs legally incurred in the action after the time of the ofler to confess judgment. § 78. All the costs of the term shall be paid by the party through whose default a cause set down on the trial list shall not be tried. If the plaintitf Xs COMMON PLEAS. 41 § 74. Costs. § 77. obtains judgment against a garnishee for a greater When | sum than the answers admitted to be due, the win'be directed to garnishee shall pay the costs. pay the costs, § 74. If arbitrators are not chosen at the time Where specified in the rule, or if chosen, the day of meet- are not a chosen at ing has been suffered to.go by without a quorum the time being present, the prothonotary may strike off the rule. rule at the cost of the party entering it, unless the = 2. attorneys or the parties otherwise agree. The aed ——— actual expenses of taking depositions, and the pay spoaeiiloan, aed of surveyors and other artists, when reasonable and aud artists. “7 necessary, shall be allowed as costs. § 75. When bills of costs are paid to and stopped sither party inthe hands of the prothonotary for taxation, bit otessts either party may have the same taxed on five days i notice to the opposite party or his attorney. All anitsto bills of costs shall, in the first instance, be taxed fecne” by the prothonotary, subject to an appeal to court "°™""”: at any time before the money is paid over. § 76. The party appealing shall, within five days tn appeats after appeal entered, file a specification, verified. by taxation by affidavit, of the items to which he objects and the "°"™™""* grounds of his objection, otherwise the appeal shall be dismissed and the costs paid over according to the taxation of the prothonotary. Upon the filing of specifications as aforesaid, the appeal shall be placed on the argument list. § 77. Where a cause has been discontinued or costs of frst ye . +, suit to b the plaintiff has been non-suited, a second suit paid before a eginning a against the same defendant for the same cause of sccond. action will not be entertained until the costs of the lirst suit shall have been fully paid. 4 42 COMMON PLEAS. § 78. Damages. § 80. RULE 15. DAMAGES. Howandby § 78. In all judgments by default, where from the damages to nature of the action the damages may be assessed beassessed. Sithout a jury of inquiry, if the plaintiff has filed an affidavit of the amount of his claim, the judg- ment shall be for that amount; in all other similar cases the prothonotary shall assess the damages. 2T. & H. 667. Writs of § 79. Writs of inquiry of damages shall be of inquiry of . : damages. course, and may be executed on five days notice to the opposite party. For sufficient cause shown the writ may be executed in open court. Exceptions to the proceedings shall be filed within five days from the return day of the writ, otherwise final judgment will be entered thereon of course. Twenty § 80. Twenty days notice shall be given of an davs notice to be given intended application for the appointment of viewers of the . . : appointment to estimate and determine the damages occasioned ol viewers, . . . . by railroad and canal companies in the construction of their works. COMMON PLEAS. 43 § 81. Depositions. § 82. RULE 16. DEPOSITIONS. § 81. Rules to take depositions, and for commis- putes to sions to take depositions, may be entered of course depositions by the prothonotary, and in all cases the depositions lathed of may be taken before any person legally authorized °""” to administer oaths. -§ 82. The prothonotary shall annex to every prothonovy to annex commission issued by him either a written or to commis- sion and printed copy of the instructions contained in the tute copy of subjoined note, and it shall be the duty of the ™"""°"* 1 Instructions and forms for taking depositions : Having agreed upon the time and place of meeting, of which a reason- able notice should be given to the agent who attends to the execution of the commission, that he may collect the witnesses, proceed at the time and place appointed in the following manner. Draw upon paper, pre- paratory to the examination of the witnesses, the following caption : ‘‘Depositions of witnesses produced, sworn orjaffirmed and examined on the first day of May, in the year of our Lord 1869, at the office of John Smith, No. 150 Broadway, in the city, county, and State of New York, by virtue of a commission issuing from the court of common pleas for Lehigh county, to him directed for the examination of witnesses in a certain cause depending in said court, wherein John Doe is plaintiff and Richard Roe is defendant.”’ Next administer to the witness about to be examined an oath or affir- mation in the established form of the place, if the same be binding on his conscience ; if not, administer such oath or affirmation as may be binding upon his conscience to make true answers to all such questions as shall be asked upon the interrogatories annexed to the commission, without favor or affection to either party, and therein ‘to speak the truth, the whole truth, and nothing but the truth. 44 COMMON PLEAS. § 82. Depositions. § 82. Tustruetions Person taking the deposition faithfully to observe to b . . %. ‘ ‘i sae ie nexed Said instructions. He shall also annex similar in- les t : . . take Structions, making the necessary alterations, to fepositens: ules for the taking of depositions certified by him. After having demanded from the witness his name, addition or title and age, draw up in writing his answers to the interrogatories as follows : William Jones, of the city of New York, aged fifty years or thereabout, being produced, sworn or affirmed and examined on behalf of the plaintiff or defendant, as the case may be, deposeth as follows : ‘1st. To the first interrogatory on the part of the plaintiff—or defend- ant, as the case may be—he answers as follows,’’ and then set down the answer. “3d, To the second interrogatory on the part of the plaintiff—or defend- ant, as the case may be—he answers as follows,’ and so on through the rest of the interrogatories until the whole are answered. The witness must then subscribe his examination with his name, or his mark, if he cannot write, and the acting commissioners must subscribe their names opposite to his signature or mark, for the purpose of identi- fying it, and at the bottom of every page of testimony ; and if in the course of the examination the witness shall produce or refer to any paper, ex- hibit or document, the same must be marked by some letter or figure, and further identified by the acting commissioners in the following man- ner: ‘This is the paper, exhibit or document referred to by William Jones, in his examination, as the paper marked A,” etc., to which the commissioner and the witnesses will sign their names. Having in this manner examined all the witnesses produced, the com- missioner will append at the end of the depositions the following certifi- cate: “State of New York, city and county of New York, ss.: I, John Smith, at the city, county, and state of New York, do hereby certify that the said witness, William Jones, prior to the taking of said deposition on the said first day of May, 1869, was by me duly sworn to testify the truth in relation to the matter in controversy, in the suit before mentioned in the caption to this deposition, and in the enclosed commission, so far as he might be interrogated in relation thereto, and the said deposition was, on the first day of May, A. D. 1869, in the city and county of New York, in the state of New York, sworn to, taken, and reduced to writing, and signed by said witness in my presence. Given under my hand and seal, at my office, in the city of New York, this first day of May, 1869. John Smith, Commissioner, [seal.] ”’ COMMON PLEAS. 45 § 83. Depositions. § 85. § 83. Twenty days notice shall be given of the time and place of taking depositions under a com- mission, which notice shall contain the name of the commissioner and his place of residence, together with the names of the witnesses, and shall be ac- companied by a copy of the interrogatories. § 84. Twenty days notice shall likewise be given of the time and place of taking depositions where the witness resides within the state, but more than forty miles from the court-house. Where the wit- ness resides within the state and less than forty miles from the court-house, five days notice shall be given of the time and place of taking the depo- sition. § 85. Reasonable notice shall be given of the time and place of taking the depositions of aucient, infirm, and going witnesses; and all depositions of Twenty days notice of taking under commission. And where witness resides more than forty miles trom the court- house. Five days notice in other cases, ' Reasonable notice where witness is aged,infirm, or going. \ The commissioners are requested distinctly to observe that every ques- tion must be answered by the witness, if it be merely to declare that he is ignorant of the matter inquired of, and that an omission to answer any one will be fatal to the whole examination. They will also bear in mind that rigid observance of the forms herein prescribed is essential, and that the disregard of any one of them may render their labor of no effect. If an adjournment should be necessary, the time of such adjournment and the reasons therefor shall be distinctly noted and returned. Having examined all the witnesses produced upon all the interrogato- ries, bind up the depositions and exhibits, together with the commission, some tape passing through and connecting the whole; and then make the following indorsement upon the commission: ‘‘ The execution of this commission appears in a certain schedule hereunto annexed ;’’ to which subscribe your names. Thus prepared and executed, inclose the same iu an envelope, sealed with your respective seals, your names written across or by the side of the seals. All depositions, whether taken under a rule or a commission, must be forwarded directly to the clerk of the court from which the rule or commission issued. 46 COMMON PLEAS. 8 86. Depositions. § 89. When depositions must be taken at county-seat, When subpena must be taken out, When depositions must be returned, Prothonot’y to give notice of filiug. Within what time exceptions to be filed. Exceptions will not be reconsidered on the trial. Five days witnesses not aged or infirm, residing within the state, and less than forty miles from the court- house, shall be taken at the county-seat of the county where the depositions are to be used. § 86. No deposition of a witness residing within the limits last aforesaid shall be read in evidence on the trial, unless the party offering it satisfy the court that a subpeena has been taken out and served, and due diligence used to procure his at- tendance, or that after reasonable inquiry the wit- ness could not be found, or that he is at the time of trial not within the state. § 87. To entitle depositions to be read in evi- dence, the same shall have been returned and filed within twenty days from the time they are taken and certified, provided that the court may at any time order otherwise on sufficient cause shown, and direct the deposition to be filed nune pro tune. § 88. The prothonotary shall notify the respec- tive attorneys of the return of a commission and of the filing of depositions, and shall make a minute of the fact and time of such notice on the back of the depositions. All exceptions to the depositions shall be filed within twenty days after such notice, and shall be entered upon the argument list and disposed of before the trial. f. § 89. The decision of the court disposing of these exceptions will not be reconsidered on the trial, but a bill of exception thereto will be signed at the trial, if required, in the same manner as if the de- cision had taken place during the trial. On the COMMON PLEAS. 47 § 90. Depositions. § 90. trial no objection to the depositions will be allowed, notice of except as to the competency of the witnesses or competency the relevancy of the testimony, of which objections relevancy. five days notice shall be given. § 90. In giving notice of the time of the taking Of the notice sa: : . of time of © of depositions, either under a commission or a rule taxing” for that purpose, it shall be sufficient to state the nee period of commencement, leaving the party on the carmalt». other side to take notice of the adjournments; and 40s." ° ™’ it shall not be a valid objection to any deposition that the person before whom it was taken adjourned Enillippl the proceeding from time to time, if such adjourn- Barr, 21 ments were necessary. 48 COMMON PLEAS. § 91. Divorce. § 94, RULE 17. DIVORCE. Proof of § 91. When the subpena is returnea served, it eens shall be accompanied by an affidavit of the person by whom the service was made, setting forth par- ticularly how such service was made, whether on the defendant personally or otherwise, and the time of such service; and the return so made shall be regarded as “due proof” under the act of the facts therein stated. Anissueto § 92. If an answer to the libel be filed, it shall ules. state whether the respondent demands an issue, inthe and shall specify the facts in the libel which are mene disputed, otherwise a jury trial shall be taken to be Whea waived. If, however, an issue is demanded by the in libel tobe answer, all material averments in the petition or confessed. libel not directly traversed or avoided in the an- swer, will be taken as confessed. Of the § 93. Where the subpena has been returned appointment of an examiner. Pioof of notice of duly served, and neither party shall ask for an issue, the court will appoint a member .of the bar as examiner, to take the depositions of witnesses as to the truth of the facts set forth in the libel or petition. A similar person as examiner will also be appointed after two returns of non est inventus, and proof of publication. § 94. No such examiner shall proceed to take COMMON PLEAS. 49 § 95. Divorce. ' § 95. depositions unless he is satisfied by due proof that taking the five days notice of the time and place of taking the “?°"""* same has been given to the respondent where he or she can be found; if the respondent cannot be found, then proof that such notice has been posted in a conspicuous place in the office of the prothono- tary for five days, shall be sufficient. § 95. It shall not be necessary in any proceeding aarriage : 2 : ueed not bi for a divorce to prove the fact or time of marriage, proved but the allegation in the libel, that on a certain denied . in aus . day a marriage was celebrated between the parties, ae shall be taken as true, unless the resnondent files an answer under oath denying such allegation. 50 COMMON PLEAS. § 96. Ejectment. £98, RULE 18. EJECTMENT. Defendant § 96. As soon as an appearance has been entered plato to for defendant in an action of ejectment, he may abstract of enter a rule of course on the plaintiff to give him tLe. . : : an abstract of the title under which he claims; and if the plaintiff neglects to furnish the same within twenty days after service of the rule on him or his attorney, judgment of non pros shall be entered by the prothonotary on proof of service of the rule and default. mien § 97. The plaintiff in like manner may nave a Tetndant to rule on defendant to give him an abstract of the tiuat title under which he defends; and if he neglects to furnish the same within twenty days after service of the rule as aforesaid, he shall not be permitted on the trial to set up any title in defence. For sufficient cause shown, the court will enlarge the time for furnishing the abstract. Notice must § 98. If the plaintiff intends to claim mesne pe Arcaren profits, he shall give twenty days notice in writing, mesic [stating for how long and what amount he claims] profits, to the defendant. On failure so to do, he shall not be permitted to claim mesne profits in that suit. COMMON PLEAS. 51 3 99. Equity. § 102. RULE 19. EQUITY. § 99. The new rules of equity practice adopted New equity rules of by the supreme court being filed and in open court, supreme are hereby adopted as the rules for governing the adopted. equity practice of this court. § 100. In lieu of the fees heretofore: allowed in rare of tees proceedings in equity, the fees to be charged, aaupiede allowed, and received from the unsuccessful party by the lsios: examiner, and prothonotary, for services done and performed by them, shall be as follows, viz. : EQUITY FEE BILL. § 101. Solicitor’s Fees. —Drawing bill or answer, goticitor's $10. All other services in the same proceeding, “* $15. If the bill and other pleadings, exceptions, interrogatories, and decrees and orders of court prepared by the successful party together contain more than six thousand words, for each additional three hundred words $1. § 102. Examiner’s Fees.— Taking depositions Examiner's fees. and copying exhibits, for every page of three hun- dred words and fractional part thereof, fifty cents. Administering oath or affirmation, twenty cents. Attesting and returning depositions, $2. A party making an appointment to take depositions and 52 COMMON PLEAS. § 103. Equity. § 104. failing to attend, or attending and not examining a witness, shall pay the examiner $2. Prothono. § 103. Prothonotary’s Fees. —Filing bill, fifty Miscellan- euus .ees. cents; docketing cause, $1; subpeena, fitty cents; office copy of any paper, for every ten words two cents; certificate to office copy when made by party, fifty cents; entering any motion, rule, re- port, or filing exceptions, ten cents; order of refer- ence to master, commissioner or examiner. twenty- five cents; entering order or decree, each ten words two cents: affixing the seal of the court. twenty- five cents; administering oath or affirmation. ten cents; stationery in each cause, seventy-five cents ; taxing bill of costs, $1; entering an appeal and making up record for supreme court, $1.50; enter- ing proceedings of supreme court, fifty cents; writ of injunction, 51.25; subpcena to testify same as at law. § 104. Jfscellaneous.—The sheriff’s fees for serv- ing any writ, order or notice, shall be the same as for the service of a summons. The serving of a subpena to testify, and the fees of witnesses, shall be the same as at law. The fees of commissioners appointed to admeasure dower or make partition, and the fees of surveyors appointed to make sur- veys, will be fixed by a special order of the court. COMMON PLEAS. 53 § 105. Execution. § 107. RULE 20. § 105. Reasonable notice shall be given to the Notice to be given ofan plaintiff or his attorney of an application to the apptication % 7 i . - to stay an court, or a judge thereof in vacation, for the stay execution. of an execution in the hands of the sheriff; and no execution shall be stayed by order of the plaintiff, paii'wnes : an execution unless all the costs endorsed thereon are first paid.. is stayed. EXECUTION. § 106. The application for a rule under the sher- Application *f’s interpleader act, shall be in writing, verified interplender by affidavit, setting forth the facts necessary to give the court jurisdiction, and shall be accom- panied by an inventory or other sufficient descrip- tion of the property taken in execution; whereupon a rule, returnable at a time when the court shall fears be in session, may be entered by the officer of course "°* °™** upon the claimant of the property and the plaintiff in the execution, to show cause why they shall not maintain or relinquish their respective claims, a rive days copy of which rule shall be served on the parties ruleto'be or their attorneys at least five days before the re- °”°™ turn day thereof. § 107. After due service of the rule as aforesaid, where tire if the parties or either of them fail to appear and {> eae answer the same on the return day thereof, the oe rule shall be discharged; and if the default is made by the plaintiff alone, the officer shall release the property claimed, otherwise the court will make an order that he proceed with the execution. 54 COMMON PLEAS. § 108. Execution. § 111. Where the § 108. If both parties appear and answer as parties appear court aforesaid, the court may discharge the rule and the proper direct the officer to release the property, or order him to proceed with the execution, or make the rule absolute, and award an issue to determine whether the right of property in the goods and chattels claimed is in the claimant or not, and make such other order as the justice of the case may require. ale § 109. If an issue is awarded, the claimant shall in theissue. he plaintiff and the execution creditor defendant ; and unless it is otherwise ordered the claimant shall, within five days thereafter, file a declaration Sen. and give bond to the defendant in the issue in bond. double the value of the property claimed, with security, to be justified before the prothonotary or one of the judges, if court be not in session, con- Condition of ditioned that upon the determination of the issue _“ such of the property claimed as shall be found not to belong to the claimant shall be forthcoming to answer the execution of the defendant in the issue. Whenbona § 110. Assoon as the declaration is filed and the is yiven the oficer to bond approved, the officer shall withdraw from the fromthe” possession of the property claimed without further — order. If the claimant neglects to file his declara- ofteer may, tion, or refuses or is unable to give bond, the ofticer tin "+ may proceed with the execution and bring into court the proceeds, there to abide the further order of the court. eienoor § 111. The declaration shall be in the following fecluration form: “A B, plaintiff, complains of C D, defend- ant, and says, that heretofore, to wit, on, &c., the COMMON PLEAS. 55 § 112. Execution. § 113. right of property in certain goods and chattels, viz.:—here specify the property claimed—was, and still isin him; and that the defendant, disregard- ing said right, has caused said goods and chattels to be levied on as the property of one EF; he therefore brings suit to determine his right of property aforesaid.” § 112. The defendant shall thereupon plead in whatthe substance that the right of property in said goods shall plead. and chattels is not in the plaintiff, as alleged in his declaration, and of this he puts himself upon the country. When the issue is thus formed, the cause Tissue be shall be placed according to the number and term [ed of ia! of the execution, at the head of the trial list for the next term. § 118. After his bond has been approved, the when the claimant may, by petition with notice to the de orier fendant in the issue, apply to court for an order to bewold. sell the goods and chattels in controversy, on the ground that they are perishable; whereupon the court, if the interest of the parties appears to re- quire it, may order the property to be sold and the proceeds paid into court, to abide the event of the issue; and when this is done it shall operate as a satisfaction of the bond given by the claimant. 56 COMMON PLEAS. § 114. Judgments. § 117. RULE 21. JUDGMENTS. When § 114. Motions in arrest of judgment shall be Verdict to be Made within five days after verdict; and where curr’. the cause has been tried within the last five days of the court, the motions aforesaid shall be made before the final adjournment, in default of which the prothonotary shall enter judgment on the ver- dict. Judgment § 115. In actions, personal or real, except eject- appearance. ment, the plaintiff having filed a declaration, may have judgment of course against the defendant, in default of appearance at any time after the return day and ten days service of the writ, without ref- erence to the quarto die post, and irrespective of the fact as to whether the declaration be filed at the return or not. b att: wt Bregf~ * fetusl Pat hee CF Non prosfor § 116. In actions hereafter to be brought, if’a Seclaration, Geclaration or bill of particulars is not filed within three calendar months from the return day of the writ, judgment of non pros shall be entered by the Judgment prothonotary; and in all cases where rules have compliance been taken, the neglect of which entitles a party to judgment, the prothonotary shall enter the judg- ment upon due proof of the service of the rules. Judgment to § 117. Where suits have been marked discon- e rr . oe" tinued. or settled, and the officer’s fees have not COMMON PLEAS. 57 § 118. Judgments. § 118. been paid, the prothonotary shall enter judgment where suits, of non pros and issue an execution for such fees. discontin’d. If a case is reached on the call of the trial list, which counsel state to have been settled, the court will enter a formal judgment for the costs, if there be an agreement to that effect: If there be no 17.44.5560. agreement, judgment of non pros will be entered. § 118. If a warrant of attorney to enter judg- now ment be above ten years old and under twenty, jeesteredon the court or a judge thereof in vacation must be ¢fauorney. moved for leave to enter judgment, which motion must be grounded on an affidavit that the warrant was duly executed, that the money is unpaid and the party living. Where the warrant is above twenty years old, there must be a rule to show cause, served on the defendant, if he can be found within the county. ee CA amg Lie Do Mev Phe a es ee Dae pA peters ug, te Ce | o Beat ble eg if , Wea be Court Sofet- fet. TFA 58 COMMON PLEAS. g 119. Librarian, 8 120. RULE 22. LIBRARIAN. The court § 119. The court shall appoint annually a mem- appoint’ ber of the bar to act as librarian, whose duty it no shall be to take charge of the court library and Horerian. collect all fines and other moneys directed by act of assembly or by the court to be appropriated to the library fund. Other duties § 120. The librarian shall also from time to time of the ; ; librarian. with the moneys so collected, make such purchases of books for the library as the court may direct, and shall, at least once a year, make report to the court of the amount of moneys received by him, stating the sources from which it was received, and how __ the same has been expended, which report shall be Compense, filed with the prothonotary; and for’ the services 100 v. librarian, renderéil by the librarian he may retain ten per cent. of all moneys collected by him. 4 LEGAL INTELLIGENCER SUPPLEMENT. OFFICE: No. 132 SOUTH SIXTH STREET, PHILADELPHIA. Vou. XXXVI. Supreme Court, For the Hastern District of Penusyloania. | Argument List of Berks, Bucks, and Lehigh Counties, at Philadelphia, com- mencing Monday, March 3d, 1879, being the ninth Monday of the Term. 1. Harvey v. Vandegrift. Error to C. P. Bucks. Re-argument. Jan. 75. 30. G. W. Biddle, H. Yerkes; Ross & Lear. 9 Appeal of Wilmington and Reading R. R. Co. Appeal from C. P. Lehigh Re-argument. J. 76. 266. J. D. Stiles L. Waln Smith. 2 3. Watson v. Kilburn. Bucks. Jan. 76. 295. W. J. Budd. 4, Phila. and Read. R. R. Co’s Appeal. Error to C. P. L. B. Thompson, Certiorari to Q. 5S. Berks. July, 76. 46. G. F. Baer. 5. Zell v. Benjamin. Error to C. P Berks. Jan. 77. Samuel L. Young. 6. State Bank vy. Rhoads. P. Berks. Jan. 77. 164, W. M. Derr. 7. Koch’s Appeal. 126, H. Willis Bland, Error to C Ga. Appeal from C. P. Lehigh. Jan. 77. 1744. J. D. Stiles. 8. Bradfield v. Line Lexington Ins. Co. Bucks, &c. Error to C. P. Bucks. Jan. 77 190. G. Ross, L. James, M. A. Bradfield. 9. Dankle v. Balliet. Error to C. P Lehigh. Re-argument. July, 77. 63. J. D. Stiles. 10. Howell’s Appeal. Cert. to O. ©. Bucks. July, 77. 111. Van Arsdalen. 11. In Re Road in Upper Macunvyie. Certiorari to Q. S. Lehigh. Jan.,78. 260. E. J. Moore. 12. Hoover v. Kirk. Error jo C. P. Berks. Jan. 78. 298. A. G. Green. 122 Tivens—-donke Een Py Bucks. July, 78. 388. N. (. James, George Ross, L. L. James. 14. Evans v. Jenks. Error to C. P. Bucks. July, 78. 39. N. ©. James. George Ross, L. L. James. 15. Scholl v. Geshat. Error to C. P. Bucks. July, 78. 40. G. Ross, L. James. 16. Ritter v. Lehioh Val. R. R. Co. F. Baer 9° 37 Bank v. Hoch. frror to © P. | Lehigh. Jan. 79. 169. E. Harvey, R | E. Wright. | 38. Bank v. Rex. Error to GC. P. Lehigh. | Jan. 79. 170. E. Harvey, R. E. Wright. | 39. Macungie, to use, &e., v. Hotten- | |stine, Jan, 79. 171. E. Harvey, ©. J. | Erdman, 40. Miller v. Mover. Error to (. P, | Berks. Jan. 79. 177. F. R. Schell, A. | B. Wanner. 41. Williams’ App. From 0, ©. Berks. Jan. 79. 180. F. R. Schell, J. R. Miller. 42. Merkel’s Appeal. “Cert. to O. C. Berks. Jan. 79. 182. F. R. Schell, H. | G. Kaufman, ~~ 7 43. Snyder’s Adm’r y. Linderman (As- signee). Error to C. P. Lehigh. Jan. 79. 187. CO. J. Erdman, M. C. Kline. . 44. Smith v. Ins. Co. Error to C. P, Berks. Jan. 79. 192. R. L. Jones. 45. Noftzinger v Roth. Error to CG P: Berks. Jan. 79. A. G. Green, W P. Burd.é' 46. Moselem Iron Co. v. Eckert et al. | Error to C. P. Berks... Jan. 79. 204. | Otterson, Baer. 47. Croll et al. v. Schafer et al. Error to C. P. Berks. Jan. 79. 209. Ralston. 48. Am. Slate Co. v. Building Assoe’n. Error C, P. Lehigh. Jan. 79. 216 Doster. Rules of Supreme Court. DISTRICTS OF THE SUPREME CouRT OF PENNSYLVANIA. And now, June 7th, 1876, by virtue and in pursuance of an Act of the General Assembly of the Commonwealth of Penn- sylvania, approved the 5th day of May, 1876, entitled ‘‘ An Act authorizing the Supreme Court to change and transfer any of the counties of the Commonwealth yirom any OF The Distifets oT sale Court, (P. L. 115,) it is hereby ordered by the said Court, now sitting at Harrisburg, in and for the Middle District thereof, as follows, that is to say: The following counties shall be and are hereby transferred from the Eastern Dis- | trict to the Middle District of the said Court, viz: eron ane: Suriivan, /all writs of error and other proceedings in PHILADELPHIA, FRIDAY, FEBRUARY 28, 1879. assigned for the hearing of all cases in and | thus ordered thereon shall be stricken for said city and county of Philadelphia. For the other counties of the Com- monwealth the return days shall be as follows, viz: In the Eastern District. The 9th Monday of the term for the counties of Berks, Bucks and Lehigh. The 10th Monday of the term for the counties of Bradiord and Luzerne. The 11th Monday of the term for the | counties of Schuylkill, Susquehanna, and Wyoming, 1 The 12th Monday of the term for the | counties of Chester, Delaware and Mount- | gomery. The 13th Monday of the term for the counties of Northampton, Wayne, Monroe, | Pike and Carbon. To which return days all writs of error, | process and proceedings in and for the said several counties in the Eastern Dis- trict shall be accordingly and respectively returnable, and the causes from the said | several counties shall be heard in the same week to which their writs of error and other process are returnable respectively. In the Middle District the term shall begin upon the first Monday of May in every year, and the return days shall be as follows, viz. : The first Monday of the term for the | counties of Lancaster and York. The second Monday of the term for the counties of Cumberland, Perry, Fulton and Bedford. The third Monday of the term for the counties of Dauphin, Lebanon and Adams. The fourth Monday of the term for the counties of Huntingdon, Blair Juniata and Mifflin. The fifth Monday of the term for the and Elk. The sixth Monday of the term for the counties of Northumberland, Columbia and Clinton. The seventh Monday of the term for the counties of Franklin, Centre, Union and Snyder. The eighth Monday of the term for the counties of Tioga, Potter, Melean, Cam- To whicen recur trays and for the said several counties in the \ No. 10. therefrom without permission of the court. The causes on said list shall be heard in the order they were set down thereon, and shall have precedence over all other causes, except those on the ** Short List,’’ capital cases, and cases specially placed at the head of the list. In the argument of the ‘*Hour List,’* counsel shall be heard for one-half hour only on each side. The court directed that hereafter the listshould be called at eleven o’clock in the morning, instead of at ten. And now, January 15, 1877, the follow- ine Rules ave adopted for the return and hearing of writs of error in capital cases in the several districts of this court. 1. The first Monday of each month shall be a special return day in each district for all writs of error and certiorari in cases of conviction and sentence of death for mur- der in the first degree. The fifth Monday after the issuing of the writ shall be as- signed for the argument thereof: Provided the court shall then be in session in any district. If then in session in a district, other than that in which the writ issued, the Prothonotary issuing such writ, shall certify the record to the district in which the court shall be sitting. If the court shall not be in session at that time, the case shall be certified to the district in which the next term shall be held. 2. Capital cases shall be placed at the head of the list for argument. 3. The writs of error and certiorari issued between the publication of these Rules and the first day of February next, shall be made returnable on the first day /of March, 1877. counties of Clearfield, Lycoming, Warren | 4. The plaintiff in error shall serve his | Paper Book on the proper Distriet Attor- Mt /ney ten days before the day assigned for Montour, the hearing, and the defendant in error shall serve his three days before the hearing. ARGUMENT OF Cases. And now, to wit, January 8, 1878, it is sorte rete trate “Trot aise loenea tener the rules for four weeks, consecutively, Middle District shall be accordingly and | respectively returnable. And the causes fiom the said counties shall be heard in | the same week to which their writs of error and other process are respectively returnable, and that on the ficth Monday of the term the hearing of the list be suspended, and the General List be taken up, and the vases then upon it be plead in their order, reserving the power of the court to limit the time of argument until the court shall doem it proper to return to the Hour List. 6. State Bank v. Rhoads. P. Berks. Jan. 77. 164, W. M. Derr. 7. Koch’s Appeal. Appeal from C, P. Lehigh. Jan. 77. 1743. J. D. Stiles. 8. Bradfield v. Line Lexington Ins. Co. Bucks, &e. Error to ©. P. Bucks. Jan. 77 190. G. Ross, L. James, M. A. Bradfield. Error to C G. F. Baer 9. Dankle v. Balliet. Error to C. P Lehigh. Re-argument. July, 77. 63. J. D. Stiles. 10. Howell’s Appeal. Cert. to O. ©. Bucks. July, 77. 111. Van Arsdalen. 11. In Re Road in Upper Macunvie, Certiorari to Q. 8. Lehigh. Jan. 78. 260. KE. J. Moore. 12. Hoover v. Kirk. Error jo C. P. Jerks. Jan. 78. 298. A. G. Green. At Eas =i Fees oP. Bucks. July, 78. 38. N. C. James, George Ross, L. L. James. 14. Evans v. Jenks. Error to C. P. Bucks. July, 78. 39. N. ©. James, George Ross, L. L. James. 15. Scholl v. Geshat. Error to C. P. Bucks. July, 78. 40. G. Ross, L. James. 16. Ritter v. Lehigh Val. R. R. Co. Error to C. P. Lehigh. July, 78. 56. E. Harvey. 17. Sheard v. Rahr. Error to C. P. Bucks. July, 78. 63. G. and H. Lear: P. Archer, Jr., Smith Bros. 18. Penna. R. R. Co. vy. Bock. to C. P. Bucks. July, 78. 67. H. Lear. 19. Wilm. and Read. R. R. ' 0. v. High. Error to C. P. Berks. July. 78. 77. A G. Green, H. A. Yundt. 20. Hausman v. Boyer. Lehigh. July, 78. 128. 21. Gordon’s Appeal. C. Bucks. July, 78. J. L. Du Bois. Error G. and Error to C. P. J. D. Stiles. Certiorari to O. 127. E. K. Nichols. 22. Yeager v. Knappenberger. Error to C. P. Lehigh. July, 78. 136. Butz and Schwartz. 23. Kramer v. Nonnemaker. C. P. Lehigh. July, 78. 188. 24. Gernert v. Grim. Error to C. Lehigh. Jan. 79. 11. J. D. Stiles. 25. Stitzel’s Appeal. Certiorari to O. C. Berks. Jan. 79. 12. G. B. Stevens, A. B. Wanner. 26. In Re Indemnity Bond to Getz. Cert to C. P. Bucks. Jan. 79.-43. A. G. Green. 27. Yeager v. Stiles (Assignee). Error to C. P. Lehigh. Jan. 79. 45. Butz and Schwartz. 28. Bertolet v. Yundt. Lehigh. Jan. 79. 55. 29. Carver’s Appeal. Certiorari to C. P. Bucks. Jan. 79. 79. P.P. 30. Appeal Fogelsville Building Ass’n. Certiorari to C. P. Lehigh. Jan, 79. 117. W. D. Luckenbach. 31. Markley v. Stevens. Error to C. P. Berks. Jan. 79. 120. F.R. Schell. 32. Philada. & Reading R. R. Co. v. Schultz. Error to (. P. Lehigh. Jan 79 143. R. E. Wright & Son. 33. Arnold v Nies Error to C P. Berks. Jan. 79. 148. A. G. Green, H C. G Reber. 34. Schaffer v. Ins. Co. Lehigh. Jan. 79. 1638, A. B. Longaker. 35. In Re Contested Election Prothono- tary BucksCo. Cert.Q 8. Bucks Jan 79 165. R.L. Cope, N. C. & J. D. James 36. Spencer v Colt. Error to ©. P Lehigh. Jan. 79. 166. Erdman, Rupp, Sowden, Longaker. Error to Sowden. P Errer to C. P. E. Holben. Error to |’. P. W. H. Sowden ; Error C. P. Lehigh. Jan. 79. 216 Doster. | Rules of Supreme Court. Districts OF THE SUPREME CourRT OF PENNSYLVANIA. And now, June 7th, 1876, by virtue and in pursuance of an Act of the General Assembly of the Commonwealth of Penn- sylvania, approved the 5th day of May, 1876, entitled ‘‘ An Act authorizing the | Supreme Comwt to change and transfer iny of the counties of the Commonwealth (P. L. 115,) it is hereby ordered by the said Court, now sitting at Harrisburg, in! and for the Middle District thereof, as follows, that is to say : The following counties shall be and are hereby transferred from the Eastern Dis- trict to the Middle District of the said Court, viz: Cameron, Cleartield, Clinton, Elk. Lyco- ming, McKean. Potter, Snyder. Sullivan, Tioga, Union, Warren. The following counties shall be and are hereby transferred from the Northern District to the middle District of the said court, viz: Columbia, Montour, Northumberland. The following county shall be and is hereby transferred from the Middle Dis- trict to the Western District of the said Court, viz: Somerset. By reason of the said transfer the Eastern, Middle, and Western Districts of the Supreme Court shall hereafter stand and be composed of the following named counties, viz : The Eastern District. of Berks, Brad- ford, Bucks, Carbon, Chester, Delaware, Lehigh, Luzerne, Monroe, Montgomery, Northampton, Philadelphia, Pike, Schuyl- kill, Susquehanna, Wayne, Wyoming. The Middle District, of Adams, Bed- ford, Blair, Cameron, Centie. Clearfield, Clinton, Columbia, Cumberland. Dauphin, Elk, Franklin, Fulton. Huntingdon, Ju- niata, Lancaster, Lebanon, Lycoming, land, Perry, Potter, Snyder, Tioga, Union, Warren, York. The Western District. of ANewheny, Armstrong, Beaver, Butler, Cambria, Clarion, Crawford, Evie, Fayette, Forrest, Greene, Indiana, Jefferson, Lawrence, Mercer, Somerset, Venango, Washington, Westmoreland. By virtue of the same Act of May 5th, 1876, Return days are hereby established for all of the aforesaid counties, viz : There shall be two Special Return Days for the City and County of Philadelphia for all writs, process and other proceed- ings, issued or begun on or after the last Monday of July in every year; that is to Sullivan, year for writs of error, process and pro- ceedings issued or commenced before the first Monday of December next preceding ; and the first Monday of February next following for writs of error and other process and proceedings issued and com- December in every year. To which return days respectively all writs of error, pro- cess and other proceedings, in and for the said city and county, issued or begun on or alter the said last Monday of July, in every year, shall be returnable. And the McKean, Mifflin, Montour, Northumtber- | say : The first Monday of January in every | menced on and after the first Monday of | hd ee counties of Lancaster and York. The second Monday of the term for the 8 Se ee A ‘counties of Cumberland, Perry, Fulton | and Bedford. The third Monday of the term for the couuties of Dauphin, Lebanon and Adams. The fourth Monday of the term for the counties of Huntingdon, Blair Juniata and Mifflin. The fifth Monday of the term for the | counties of Clearfield, Lycoming, Warren _and Elk. The sixth Monday of the term for the counties of Northumberland, Montour, Columbia and Clinton, The seventh Monday of the term for the counties of Franklin, Centre, Union and Snyder. The eighth Monday of the term for the counties of Tioga, Potter, McKean, Cam- from any of the VistiictS of Sate Court, ~eron ant Ssuliivan. To wire revarn tay s~ all writs of error and other proceedings in ‘and for the said several counties in the Middle District shall be accordingly and respectively returnable. And the causes fiom the said counties shall be heard in the same week to which their writs of error and other process are respectively | returnable. In the Western District the return days shall be as follows, viz. : The first Monday of the term for the county of Allegheny. The third Monday of the term for the counties of Erie, Venango, Clarion, Jef- ferson and Forrest. The fourth Monday of the term for the | counties of Westmoreland, Armstrong, Indiana, Cambria and Somerset. The seventh Monday of the term for the counties of Washington, Fayette, Green, | Beaver and Butler. The eighth Monday of the term for the /counties of Mercer, Crawford and Law- -vence. To which return days all writs of error, process and proceedings in and for the said several counties in the Western | District shall be accordingly and respec- tively returnable. And the causes from the said several counties (excepting the county of Allegheny), shall be heard in | ‘the same weeks to which their writs of -error and other process are respectively veturnable. The causes from the county -of Allegheny shall be heard in the first, - second, fifth and sixth weeks of the term. Hour List. rule is adopted by the court for the argu- ment of cases in the Eastern District of the Supreme Court of Pennsylvania, viz. : The Prothonotary of the Eastern Dis- trict shall make a list of causes taken from the list for the city and county of List.”’ any time before or during the term. the- court. The causes on the said list shall be heard in the order they were set down thereon, and shall have precedence over all other causes, except those on the “‘Short List,’’ capital cases, and cases specially placed at the head of the list. In the argument of cases on the ‘* Hour hour only on each side, For the remainder of the term the week, to be called the ‘‘ Hour List.” The attorney or solicitor of either party may order a cause on said list at any time Philadelphia, and to be called the ‘‘ Hour | The attorney or solicitor of either | oa as /AMENDMENT TO THE Hour List RULE. party may order a cause on said list at) No cause thus ordered thereon shall be | stricken therefrom without permission of | waaay VVeSe eee ca: > = shall not be in session at that time, the case shall be certified to the district in which the next term shall be held. 2. Capital cases shall be placed at the head of the list for argument. 3. The writs of error and certiorari issued between the publication of these Rules and the first day of February next, shall be made returnable on the first day of March, 1877. 4. The plaintiff in error shall serve his Paper Book on the proper District Attor- ney ten days before the day assigned for the hearing, and the defendant in error shall serve his three days before the hearing. ARGUMENT OF CASES. And now, to wit, January 8, 1878, it is ~ortrereti@orat tre pron iste re lreart Heeeedkee the rules for four weeks, consecutively, and that on the ficth Monday of the term the hearing of the list be suspended, and the General List be taken up, and the vases then upon it be plead in their order, reserving the power of the court to limit the time of arguinent until the court shall -doem it proper to return to the Hour List. List,’’ counsel shall be heard one-half | Prothonotary shall make a list for each | before or during the term, and prior to) Tuesday noon of the week in which the first eight weeks of the term are hereby case is assigned for argument. No case | | ai < And now. January 4, 1877, the following | 60 ball gree. taken. This order not to interfere with special orders to particular cases. CONCERNING BatL IN Error. February 18th, 1878. The existing Rule V, relating to Bail in Error, is rescinded, and the following adopted as Rule V in lieu thereof : Rule V.—The defendant in error or appellee. may, within twenty days after notice of the taking of bail in error except to the sufficiency thereof, when the plain- tiff in error or appellant must either put in new bail, or the old bail must justify within ten days after exception taken ; in default whereof the writ of error shall not be a supersedeas of the execution. New bail may be put in or the old justified, within the ten days before the Prothono- tary of this Court in the proper district, or before the Prothonotary of the Court of Common Pleas of the county to which the | writ of error shall have been issued, or from which the appeal shall have come ; and in the latter case the new recogni- zanee, or the affidavits of justification, shall be returned to the Prothonotary of this Court within the ten days allowed, not counting the day when the exception Of the time and place of giving new bail or justifying the old, at least three days written notice shall be given to the opposite party or his attorney of record. For the purpose of this rule the Prothonotaries of the several Courts of Common Pleas are appointed Commis- sioners of Bail. March 18, 1878. All causes remaining over, undisposed of from former terms, and set down for argument on the Hour List, shall be placed at the head of that list, in the order of their numbers and terms. Writ oF Error IN A CAPITAL CASE. And now, to wit, January 20, 1879, it is ordered that ‘hereafter every precipe for a writ of error or certiorari in a capital ease shall be accompanied by a certificate under the seal of the court below, of the date of the sentence, and if it shall appear trom said certificate that more than twenty days have elapsed since said sentence the Prothonotary shall not issue said writ unless the same be specially allowed by this Court or one of the Justices thereof.” COMMON PLEAS. 59 § 121. Money paid into Court. § 128. RULE 23. MONEY PAID INTO COURT. § 121. Commissioners appointed to distribute commis. e . sioners to money paid into court shall be members of the distribute bar, and shall be subject to the same rules which court. have been hereinbefore provided in reference to auditors. § 122. A defendant may, upon motion and notice a defendant to the plaintiff or his attorney, pay into court the money” : : . admitted to amount which he admits to be due, together with be due into costs up to that time, when the plaintiff may re- , ceive the amount so paid in, and either enter a discontinuance or proceed to trial, at his option; but in the latter case he shall pay all costs subse- quently accruing, unless he recover judgment for more than the amount paid into court, with legal interest thereon. § 123. On the payment of money into court the Money paid same shall be deposited in such incorporated bank bedeposited. as the court may designate, to the credit of the court in the particular case, and shall be drawn out only upon an order of the court, attested by. the prothonotary; provided that nothing herein ,,,,., shall be construed to prevent a disposition of the germs, money by agreement of the parties. A copy of by 2sree this rule shall be inserted in the bank book in which the deposits are entered. 60 COMMON PLEAS. § 124. New Trials. § 126. RULE 24. NEW TRIALS. When § 124. Motions for new trials shall be made new tals to Within five days after the verdict. Where the : ' verdict has been rendered within the last five days of the court, the motion for a new trial shall be made before the final adjournment. Opposite § 125. On a motion for a new trial the court will party will not be heard on motion. When bills of exception have been taken. determine, on the showing of the party by whom it is made, whether to grant a rule to show cause. or not, without hearing the opposite party. If a rule is granted, the cause will be set down for argument ; if not, judgment will be entered on the verdict, unless a motion in arrest of judgment is pending. § 126. When in the course of a trial a bill of ex- ceptions shall have been taken to the opinion of the court, either in their charge, or the admission or rejection of testimony, the court in their discre- tion may permit a motion for a new trial to be made and argued upon the same grounds as those on which the bill of exceptions shall have been taken. COMMON PLEAS. 61 § 127. Notices. § 129. RULE 25. NOTICES. § 127. All notices shall be in writing; and if a au notices party entitled to notice has not employed an attor- ae ney, it shall be sufficient to serve a copy on the party or his bail, if there be any; but if an attorney ana may be be employed and marked on the record, all notices, ee pleadings, and papers shall be served on him, ex- cept where an act of assembly directs otherwise. § 128. In actions against executors or adminis- How notice trators to charge the real estate of a decedent with fesident. the payment of the debt of the plaintiff, notice to the widows, heirs, and devisees who reside out of the county, shall be given by publication of the writ in one English and one German newspaper printed in the county, for three weeks. § 129. It is ordered that the prothonotary give Hew notice notice of any new rules of court which may here- ne after be adopted, by affixing a copy thereof in a conspicuous place in his office, there to remain for the space of twenty days. 62 COMMON PLEAS. § 180. Oyer. § 130. RULE 26. OYER. whenoyer § 130. Oyer of any instrument which is the demanded. foundation of the action, may be demanded in writing of the plaintiff’s attorney at any time after the return day of the writ. Upon non-com- Non prosto Pliance with the demand for twenty days after the be entered incaseof same is made, judgment of non pros will be entered non-com- plisnce. by the court, on application, unless sufficient cause be shown to the contrary. COMMON PLEAS. 63 § 181. Pleadings. § 133. RULE 27. PLEADINGS. § 131. If the defendant rule the plaintiff to fur- nish a bill of particulars after his declaration has been filed, it shall be deemed a waiver of all sub- stantial as well as formal defects in the declaration ; and if the rule be entered before the filing of a declaration, the bill of particulars furnished in pur- suance of such rule shall be deemed as a substitute for the declaration for all purposes. § 132. All substantial as well as formal defects in the declaration and bills of particulars shall be deemed cured, unless demurred to specially. On overruling or sustaining the demurrer, the court will, in their discretion, grant leave to amend on such terms as to costs and time of trial as shall seem right, unless it shall appear on the argument that the party has no better cause of action or de- fence than is set out in the instrument demurred to, in which case judgment will be entered as the proceedings require. - § 133. In proceedings against railroad companies to’recover damages for lands or materials taken and in other similar cases, the issue shall be formed as follows: The party claiming the damages shall be made plaintiff and shall file a statement describing the land or materials and value thereof, and aver- ring his estate therein and his damages, and any Defects in, wheu to be deemed cured, &c. Must be demurred to specially. In proceed- ings against railroad comp2nies. 64 COMMON PLEAS. § 134. Pleadings. § 134. v Traverse by other matter specially directed by the court to be ant, tried. The defendant shall thereupon traverse such material allegations in the statement as he intends to deny, and such as are not so traversed shall be taken at the trial to be admitted. Pleadingsin § 134. In feigned issues it shall not be necessary isaes to declare upon a wager, but in all such cases the pleadings will be sufficient, if substantially in the form hereinbefore provided in issues to be framed under the sheriff’s interpleader act. COMMON PLEAS. 65 § 185. Sheriff. g 188, RULE 28. SHERIFF. § 185. The sheriff shall, upon reasonable notice, sheristo : 8 ‘urnish deliver to the person requiring the same, at the inventory of 2 goods levie roper cost of such person, a true copy of the inven- upon. 9 tory of the goods and chattels taken in execution. § 136. The expense of advertising sheriff’s sales uxpenses of of real estate may be taxed in with his costs, pro- shena’s ” vided that the same shall, in no event, exceed the nee usual printer’s rates in other cases, arid no allow- ance will be made for advertising notice of such sales in more than two newspapers, unless by special order of the court. § 187. Sales of real estate shall be held on or in where sates the vicinity of the premises. 4 In case no sufficient to be held. price shall be offered, the sale shall be adjourned to the office of the sheriff or to the court-house, to take place on the evening of the first day of the next succeeding term, and notice of such adjourn- ment shall be given, if practicable, as directed by the act of assembly. § 138. Whenever objection shall be made to the otjections acknowledgment of a sheriff’s deed, the prothono- edgment of tary shall note the same on the minutes, stating des by whom and on whose behalf such objection is made, and unless exceptions are filed within five days thereafter, such objection shall be dismissed ; but if exceptions are filed within the five days, the ease shall be placed on the argument list. The _ court will appoint a stated time at each term for acknowl the acknowledgment of sheriff’s deeds. eee ‘ PP. obs Span. Wi, Baa 24 ty ihe Aye ag etal & y i Ly rhy ey A> lactis ue R 3 Zz ie 5 é i 66 COMMON PLEAS. § 139. Special Jury. § 141. RULE 29. Rule to strike, may be culomed of course. Manner of striking the jury. Not to pre- vent trial by common jury. SPECIAL JURY. § 189. A rule to strike a special jury may be en- tered of course, and when entered, twenty days notice shall be given to the opposite party or his attorney of the time and place of striking the jury. § 140. If the parties appear, they may strike re- spectively any number not exceeding twelve names from the general panel, and the prothonotary shall then draw twelve names from the residue who shall constitute the jury. If either party fails to appear, the opposite party may proceed ex parte. § 141. If either party has obtained a rule for. striking a special jury and does not use due dili- gence to carry such rule into effect, the opposite party shall not thereby be prevented from trying the cause by a common jury. COMMON PLEAS. 67 § 142. Trial. § 145. RULE 30. TRIAL. § 142. When a cause is reached on the trial list or tne it must be tried, or continued for cause, or non- Seasean, suited. When application is made for a continu- ance, because of the absence of a witness, the party shall state under oath the facts which he believes the witness will prove, the grounds of his belief, the efforts made to procure the attendance of the witness, and the reasons for believing that the wit- ness will attend at a future trial. § 148. If the opposite party shall admit in writing amission to be filed in the cause, that the witness, if called, denies would testify as claimed, such admission will be ™"” sufficient for refusing the application for a con- tinuance. § 144. No cause on the trial list shall be con- Engagements tinued on account of the engagements or absence of counsel, unless the engagement be on public duty, or the absence arise from sickness, and not then for more than one term for the same cause. § 145. The entire examination of a witness shall rxamina- be conducted by one only of the counsel of each He party. If a point of law be reserved on the trial points of a cause, the point and the facts upon which it ““""** arises must be stated upon the record. 1 Cas. 816, \ 68 COMMON PLEAS. § 146. Trial. g 147. Pointstobe = § 146. Points of law upon which the court shall toe be requested to charge the jury, shall be propounded iN writing, and a copy thereof delivered to the court and one to the opposing counsel before the commencement of the summing up by the con- cluding counsel. Bat two § 147. After the evidence is closed neither party side to shall be permitted to address the court and jury jay. by more than two counsel; and in appeals from but one a up shall be by one counsel of each party. racers the judgments of justices of the peace, the summing COMMON PLEAS. 69 § 148. Trial List. § 149. RULE 831. TRIAL LIST. § 148. Within twenty days after the final ad- prothonory ‘ to make out journment of the regular term of court, the pro- trial list. thonotary shall make out a trial list for the next term, and affix the same in some conspicuous place in his office for the inspection of all con- cerned. § 149. In arranging the trial list the causes shall tow causes be put down in the order of their seniority, giving tho trfal Het precedence, however, to feigned issues involving the distribution of money, and under the sheriff’s interpleader act, which, as soon as framed, shall go at the head of the list for the next term. The trial list thus made out shall be sufficient notice of trial. ! 70 COMMON PLEAS. § 150. Views. § 151. RULE 382. VIEWS. Notice tobe § 150. Whenever a view shall be allowed in any Seviews cause, the sheriff shall give to the parties or their attorneys at least five days notice of the time of holding the view. The party applying for the view Expenses of Shall advance the expense thereof; and if he pre- ae vail in the end the opposite party shall reimburse the same. sumeiontit § 151. No trial shall be put off on account of a have” view not being had by six of the first twelve of the nen jury as they stand in the panel, provided any of them have viewed, and some of them do appear to try the cause; and such of them who have viewed. and appear shall be first sworn on the trial. ' ; ‘ i BLM Jang [lO EY COMMON PLEAS. 71 Manuscript Rules. 72 COMMON PLEAS. Manuscript Rules. COMMON PLEAS. 73 Manuscript Rules. 74 COMMON PLEAS. Manuscript Rules. COMMON PLEAS. 15 Manuscript Rules. 76 COMMON PLEAS. Manuscript Rules. COMMON PLEAS. 17 Manuscript Rules. 78 COMMON PLEAS. Manuscript Rules. COMMON PLEAS. 79 Manuscript Rules. 80 COMMON PLEAS. Manuscript Rules. RULES OF THE ORPHANS’ COURT. RULE 1. ACCOUNTS. § 152. All accounts allowed by the register and when. trust accounts shall be presented at a stated teeoas orphans’ court day and confirmed nisi, which con- oe firmation shall become absolute without further order, unless exceptions are filed or an auditor is moved for within twenty days thereafter. § 153. If executors, administrators, guardians or when trustees do not file their respective accounts within elu OE the time required by law, a citation may be issued of course by the clerk, on application of any person interested, setting forth the necessary facts verified by affidavit. (81) 82 ORPHANS’ COURT. § 154. Appraisement. § 157. RULE 2. APPRAISEMENT. Widow's § 154. Appraisements of property retained by appraise- “ . . ment, how the widow or children of a decedent will not be presented. received unless presented by an attorney of this court, upon a stated orphans’ court day; upon such presentation the court will direct the same to be filed and approved nisi. When § 155. If no exceptions are filed within twenty tobetiea, Gays from such approval, the same shall become absolute without further order, and the appraise- aynase. ment shall be copied at length by the clerk into recorded, the book kept by him for recording accounts and reports of auditors. Where § 156. If the property retained as aforesaid be retains real real estate, the appraisement shall contain a de- scription of the quantity, location, and boundaries of the same, in such manner as to preclude all difficulty in its ascertainment, and shall be re corded as provided in the last section. Costs of § 157. The executor or administrator shall be recording oy fe . . widow's allowed credit in his account for the expenses in- appraise-. ment. curred in the presentation, filing, and recording of said appraisements. ORPHANS’ COURT. 83 & 158, Argument, § 159, RULE 3. ARGUMENT. § 158. The clerk shall, within five days after the cierk to adjournment of the regular term of court, make pacuant out an argument list, on which all matters for. si argument shall be put down in their proper order, and the list so made out shail be sufficient notice to all parties in interest. § 159. The argument list will be taken up during when the sessions of the court hereinbefore provided for ist ee arguments in the common pleas, when all matters thereon which either party may call for argument, shall be heard and determined, unless sufficient cause be shown to the contrary. 84 ORPHANS’ COURT. § 160. Auditors. § 163. RULE 4. AUDITORS. How notice § 160. Auditors shall be members of the bar, begiven. and shall give notice of the time and place of meeting, by advertisement in one English and one German newspaper printed and published in the county, for three successive weeks prior to the day of meeting, unless such notice be dispensed with by agreement of all the parties in interest or by an order of the court. To keep § 161. Auditors shall keep and return regular their * minutes of their proceedings, showing their differ- pre" ent, sessions, that the court may adjust the amount to be allowed for fees and expenses. The testi- mony, documentary and otherwise, shall be re- ported separately. How § 162. Where facts are controvertéd the auditor auditors to : . : . rope faaie shall report his finding thereon, in concise form, oflaw. after the manner of a special verdict; he shall also state concisely the points of law raised before him, and his opinion thereon. Where a schedule of Distributi’n. distribution is necessary, it shall not be blended with other parts of the report. Feigned § 163. It shall be the duty of any person desiring issue, an issue to present his request in writing to the auditor, within five days after the hearing has been concluded, which request shall particularly ORPHANS’ COURT. 85 § 164. Auditors. § 165. set forth the nature and character of the facts in Auditor to dispute, verified by affidavit; whereupon it shall quest tr be the duty of the auditor to make report to the court of the presentation of said request. § 164. All reports of auditors shall be filed in when open court, upon a stated orphans’ court day, and becontrm’d be senfanied nisi, which confirmation shall become absolute without further order of the court, unless exceptions to the report are filed within ve days Teeny (bse uRErCOTiAY; : § 165. Exceptions to the reports of auditors shall gxceptions be accompanied by an affidavit that the same are audi.” not filed for purposes of delay, but because it is believed that they raise questions requiring the decision of the court, to prevent injustice. accduints white : ES ae 86 ORPHANS’ COURT. § 166. Depositions. § 167. RULE 5. DEPOSITIONS. Witnesses § 166. The testimony of witnesses, when neces- Seana sary, shall be taken by deposition in writing, and me?st ‘no witness shall be examined at the bar in connec- tion with any matter on the argument list, unless by special order of the court. How § 167. Depositions taken in the manner pye- tobetaken. scribed by the rules of the court of common pleas, shall be legal evidence in this court without a sub- pena or the attendance of witnesses, unless other- Wise ordered. Sa ORPHANS’ COURT. 87 § 168. Executors and Administrators. § 169. RULE 6. EXECUTORS AND ADMINISTRATORS. § 168. No executor or administrator will be dis- How charged on his own petition unless twenty days ‘obo personal notice be given to the parties interested,“ if such notice be reasonably practicable; if not practicable, notice shall be given by publication for three weeks in at least one newspaper in the county. § 169. If an executor or administrator do not when file his account within the time required by law, a against may citation may be issued of course by the clerk on petition of any person interested, setting forth the necessary facts verified by affidavit. 88 ORPHANS’ COURT. § 170. Guardians. § 171. RULE 7. GUARDIANS. Petitions for appointment of guar- dians. When bonds to be given. When guardian may be discharged. § 170. Petitions for the appointment of guar- dians shall set forth the name, age, and place of residence of the minor, and the amount of his personal property; and the appointment shall not be recorded or certificate issued until the bond has been given and approved by the court. § 171. No petition for the discharge of a guar- dian, and for the appointment of another in his stead, will be granted until the account of the guardian has been adjusted by an auditor appointed for that purpose, except in cases where the estate is so small as not to justify the expense of an audit. / ORPHANS’ COURT. 89 8 172. Money paid into Court. § 172. RULE 8. MONEY PAID INTO COURT. § 172. On the payment of money into court to Money to be abide the order of the court the same shall be bac deposited in such incorporated bank as the court may designate to the credit of the court in the particular estate, and shall be drawn out only upon an order of the court attested by the clerk; provided that nothing herein shall be construed to Parties may prevent a disposition of the money by agreement agreement. of the parties. A copy of the foregoing rule shall be inserted in the bank book in which the deposits are entered. 90 ORPHANS’ COURT. § 173. New Rules. § 178. RULE 9. NEW RULES. How notico § 178. It is ordered that the clerk give notice of f 1 ioe given. any new rules of this court which may hereafter be adopted, by affixing a copy thereof in a conspicuous place in his office, there to remain for the space of twenty days. ORPHANS’ COURT. 91 § 174. Order of Business. § 175. RULE 10. ORDER OF BUSINESS. § 174. At the hour fixed for holding the stated tist ot session of the court, the attorneys will ‘be called by bevelled . one of the judges in the order of the seniority of ° their admission to the bar, when each attorney as his name is called shall submit such motions, peti- tions, and other business in this court as he may have. § 175. No attorney will be heard out of his order Attorneys without special leave of the court. Should any of heard out of the attorneys be absent when their names are called, their names will be recalled after the list has been gone through with. \ 92 ORPILANS’ COURT. § 176. Real Estate. § 178. RULE 11. REAL ESTATE. Reports to § 176. Reports of ‘sales of real estate shall be panied by accompanied by an affidavit that the facts therein "get forth are true, and that the person making the sale is neither directly nor indirectly interested as purchaser of the property sold. When § 177. Reports of sales of real estate shall be meleand ’ Made on orphans’ court day, and shall on presen- confirmed. tation to the court be filed and confirmed nisi, which confirmation shall become absolute without further order, unless exceptions are filed within twenty days. Security to § 178. When executors, administrators, guar- before oder Cians, trustees, or others, are directed by this issues. 7 court to make sale of real estate, the security must be approved of by the court, and a bond given, signed and sealed by the party and his securities, before the clerk shall issue the order. ORPHANS’ COURT. . 93 _ § 179. Stated Sessions. § 179. RULE 12. STATED SESSIONS. § 179. The court will appoint one or more days court to in each term as stated orphans’ court days, to stad which all rules and other process shall be made court days. returnable unless otherwise ordered; and no busi- ness in the orphans’ court will be heard upon any other days except such as cannot -without great inconvenience be presented at the stated sessions. ORPHANS’ COURT. Manuscript Rules. ! OTICE OF APPLICATION FOR IN- CORPORATION.—Notice is hereby given that an application will be made to the Gover- nor of the State of Pennsylvania on Saturday, June 21st, 1890, under the Act of Assembly of the Commonwealth of Pennsylvania, entitled “an Act to provide for the incorporation and regulation of certain corporations,’ approved April 29th, 1874, and the supplements’ thereto, for the charter of an intended corporation to be called the “SLATINGTON ROLLING MILL COMPANY,” the character and object of which are the carrying on the business of manufac- turing and dealing in all kinds of merchantable iron and steel, and the transaction of ali busi- ness connected therewith, with the right to ac- quire such real and personal property as may be necessary for carrying on their business and for tese purposes to have, possess and enjoy all rights, benefits and privileges conferred by said Actof Assembly and supplements The names of the subscribers are A. P. Steck- el, Joel Neft, Henry Kuntz, D_D. Roper, David Wiliams, John W. Hopkins, Hugh L. Davis, F. Horlacher and Wilson F. Andreas. tu 203w D. D. ROPER, Solicitor. co ee PORATION N OTICE.—In tha Court a Sonsaon Pleas of Lehigh County. nee fice is hereby given that an application oe e made to the said Court on the 10th day of ane ’ 1890, at 10 o’clock A. M., under the Act of As- sembly of the Commonwealth of Pennsylvania, entitied “An Act to provide for the incorpora- tion and regulation of certain corporations, * approved April 29th, 1874, and the sured thereto, for the approval of cert: amen a ments to the charter of “EBENEZER CHU: x OF THE EVANGELICAL ASSOCIATIO - set forth in the petition for the allowance o said amendments filed in said Court. | - KAUFFMAN & RENINGER, Solici' ro ALLENTOWN, Pa., May 20, 1890. 3w- ORPHANS’ COURT. 95 Manuscript Rules. 96 ORPHANS’ COURT. Manuscript Rules. ORPHANS’ COURT. 97 Manuscript Rules. 98 ORPHANS’ COURT. Manuscript Rules. dee te Cee eke, 4, f . ack % < yp ete oi (Beeidi i Micban, Bf, CP. io Aprve oe ; fe , an = ee tes, to gieterey) fiat Lbs, tfhe.: te Cpl ert Fey, Te ail 47 ae ae ie “ oe Laccorvey [itr ON eden g oe Wa te psteods ts DOE L, at we ae putes aii! Pitecele Lert 7 Bat, Cuts br doing a Jeeke a ay a RULES OF THE COURT OF QUARTER SESSIONS. RULE 1. ARGUMENT. § 180. The clerk shall, within five days after the cterk to adjournment of the regular term of court, make out arisen an argument list on which all matters for argu- re ment shall be put down in their proper order, and the list so made out shall be sufficient notice to all parties in interest. § 181. The argument list will be taken up dur- when ing the sessions of the court hereinbefore provided lito be’ s taken up. for arguments in the common pleas, when all matters thereon which either party may call for argument shall be heard and determined, unless sufficient cause be shown to the contrary. (99) 100 QUARTER SESSIONS. § 182. Bills of Exception. § 183. RULE 2. BILLS OF EXCEPTION. Tobe noted § 182. In cases of murder and voluntary man- oa slaughter, no bill of exceptions to the admission or rejection of testimony will be signed unless the court has been distinctly called upon to note an exception at the time the decision was made. Points of § 183. If on the trial for murder or voluntary law, when to be presented. manslaughter, the counsel on either side wish the charge of the court on any point or points of law, such points shall be distinctly stated in writing, and a copy thereof delivered to the court and to the opposite counsel before either party commences his argument to the jury. QUARTER SESSIONS. 101 § 184. Boroughs. § 185. RULE 3. BOROUGHS. $184. After approval by the grand jury of an Notice to be application for incorporating or altering the limits Spplication. of a borough, or for annulling or altering the charter of the same, the clerk, before the final decree, shall give notice of such application by ad- vertisement for three successive weeks. §$ 185. Exceptions to the proceedings must be sxceptions- filed on or before the first day of the term next Settee succeeding the approval of the grand jury, and must be verified by affidavit as to facts not appear- ing upon the record. If disputed questions of fact are raised by the exceptions, the matter will be referred to a member of the bar as commissioner to make report thereon: 102 QUARTER SESSIONS. | § 186. Constables. § 187. RULE 4. CONSTABLES. How § 186. No appointment to fill a vacancy in the vacancies to c ‘ae befilled. Office of constable will be made unless an affidavit that such vacancy exists and setting forth the cause thereof is first made and filed of record. u Noticetobe § 187. Notice of the intended application for the cases of removal from office of any constable, or for a rule removal. fae . . ro . requiring him to give additional security, must be given at least twenty days before the first day of the term at which the application is to be made, provided that the court may on proper cause shown dispense with this rule. QUARTER SESSIONS. 103 § 188. Corporations, § 188. RULE 5. CORPORATIONS. § 188. No application to change the name, style apptication and title, or to alter or annul the charter of any tamer ee corporation, will be entertained unless it be accom- panied by evidence that the proposed change has been agreed to by a majority of the members at a meeting called for that purpose. 104 QUARTER SESSIONS. § 189. Costs. § 191. RULE 6. COSTS. Bills ofeosts § 189. All bills of costs shall in the first instance bythe clerk. be taxed by the clerk, on reasonable notice to the opposite party or his attorney, subject to an appeal to court at any time before the money is actually paid over. specification § 190. The party appealing shall, within five appeal. days after appeal entered, file a specification, veri- fied by affidavit, of the items to which he objects, with the grounds of his objection, otherwise the appeal will be dismissed. When a specification is filed, the appeal shall be placed on the argument list. Number of § 191. In prosecutions for surety of the peace it : : : Hinted in the fees of but three witnesses on each side, and in certain cases. . ° prosecutions for simple assault and battery the fees of but six witnesses on each side, shall be allowed, unless it is otherwise ordered by the court. QUARTER SESSIONS. 105 § 192. County Officers. § 193. RULE 7. COUNTY OFFICERS. § 192. No appointment to fill any vacancy occa- Vacancies sioned by the death, removal, or resignation of any , county officer, will be made unless an affidavit be filed setting forth the cause and fact. of the vacancy. $193. No application to remove any county Proceedings officer will be entertained unless accompanied by oa an affidavit that notice of the intended application core has been given to the party interested ‘at least twenty days previous thereto. 8 106 QUARTER SESSIONS. g 194. Depositions, 8 195. Witnesses not to be RULE 8. DEPOSITIONS. § 194. The testimony of witnesses when neces- examined at Sary to the disposition of any matter upon the the bar, How depositions to be taken. argument list shall be taken by deposition, and no witness shall be examined at the bar in connection with any such matter unless by special order of the court. f § 195. Depositions taken in the manner pre- scribed by the rules of the court of common pleas shall be legal evidence in this court without a sub- pena or the attendance of the witnesses, unless otherwise ordered. QUARTER SESSIONS. 107 § 196. Elections, § 107. RULE 9. ELECTIONS. § 196. All petitions complaining of an undue Proceedings election must specify particularly in what the undue irregularity complained of consists, and must be verified by affidavit. Such petition may be amended under oath at any time previous to the entry of a rule to take depositions. Disputed matters of fact will be referred to a member of the bar as com- missioner to report thereon. _, § 197. Notice of an intended application to divide notice to be any borough, ward or township into two or more proceedings election districts, to alter the bounds of any elec- election tion district, or to form an election district out of : parts of two or more adjoining townships, shall be given by advertisement in one English and one German newspaper published in the county, for three successive weeks, and proof that such notice has been given must be made at the time of the application. , \ 108 QUARTER SESSIONS. & 198. Licenzes. , & 198. RULE 10. LICENSES. Petitions § 198. No application for license to sell vinous, and remon- strances to be presented by an attor- ney. Clerk to give public notice of this rule, spirituous, malt or brewed liquors will be enter- tained unless presented in open court by an attorney thereof, nor will any remonstrance be regarded against granting such application unless presented in like manner. It is ordered that the clerk give public notice of this rule by advertisement in the several newspapers of the county. QUARTER SESSIONS. 109 § 199. New Rules. ‘ § 199. RULE 11. NEW RULES. § 199. It is ordered that the clerk give notice of How notice any new rules of this court which may hereafter fobs pla be adopted, by affixing a copy thereof in a con- spicuous place in his office, there to remain for the space of twenty days. 110 QUARTER SESSIONS. § 200. : New Trial. 8 200. RULE 12. NEW TRIAL. When § 200. Motions for new trials and in arrest of new trial, judgment shall be made within five days after the ¢., to be made. verdict, and where the verdict has been rendered within the last five days, such motions must be made before the final adjournment of the court. QUARTER SESSIONS. 111 § 201. Roads, "§ 204 RULE 18, ROADS. § 201. Exceptions to the reports of road and uxceptioas bridge viewers shall be verified by affidavit unless fel by aii- the facts appear upon the face of the proceedings, oe in which event the attorney of the excepting party shall certify that there are legal reasons why the report should not be confirmed; and in all cases | the exceptions must be filed on or before the first: exceptions day of the term next after the filing of the report, or the report will be confirmed of course. § 202. Five days written or printed notice shall notice to be be given of the time of all road views to the own- foad views. ers or occupants of the land along the route of the proposed road, or in case of reviews to the most active of the petitioners, and the report shall state affirmatively that such notice has been given, in default of which the proceedings will be set aside. § 208. In views for the assessment of damages ana of done by the opening of roads, five days written or deoresing printed notice shall be given of the time of view to oe the parties responsible for such damages, and the report shall state affirmatively that such notice has been given or it will be set aside. § 204. Where proceedings for a road or bridge no new have failed, no new application will be entertained oro gaa; for one year thereafter, except in cases where the proceedings have been quashed. 112 QUARTER SESSIONS. § 205. Trial. § 209. RULE 14. TRIAL. Entire § 205. The entire examination of a witness shall of witness be conducted by one only of the counsel of each counsel, party, and it shall be discretionary with the presi- dent judge whether time will be allowed for noting the testimony. Prison § 206. Defendants who are in prison shall be to be frst first tried, and no cause shall be continued without Tied. Contin the consent, of the defendant where there is time ances, . to try it, except upon legal grounds other than the mere discretion of the district attorney. District § 207. Where in the opinion of the district attor- ae ney the interest of the commonwealth may be wae PY jeopardized by a public communication of the rea- sons for not trying a cause, the ground of continu- ance may be laid before the court privately in writing. Continuance § 208. When application is made for a continu- on account 4 ofabsent ANCE because of the absence of a witness, ground we youst be laid by testimony before the court, setting forth the facts which it is believed the witness will prove, the efforts made to procure his attendance, and the reason for believing that a continuance will result in securing the testimony. Courtmay § § 209. The court shall have power in all cases QUARTER SESSIONS. __ 113 § 210. Trial. g 210. to abate, moderate or relieve a party from the rigor- moderate or relieve from ous observance of the foregoing rules when satisfied rules. that irreparable injustice will otherwise be done. § 210. It is ordered by and with the consent of Former all the members of the bar that all rules heretofore te, a ian new ru es adopted, be and they are hereby abolished, and adopted. that the foregoing be approved and adopted. 114 QUARTER SESSIONS. Manuscript Rules. QUARTER SESSIONS. 115 Mauuscript Rules. , 116 QUARTER SESSIONS. Manuscript Rules. QUARTER SESSIONS. 117 Manuscript Rules. 118: QUARTER SESSIONS. Manuscript Rules. QUARTER SESSIONS. 119 Manuscript Rules. 120 QUARTER SESSIONS. Manuscript Rules. QUARTER SESSIONS. 121 Manuscript Rules. 122 QUARTER SESSIONS. Manuscript Rules. \ QUARTER SESSIONS. 123 Manuscript Rules. 124 QUARTER SESSIONS. Manuscript Rules. RULES AT LAW AND IN EQUITY OF THE SUPREME COURT , OF PENNSYLVANIA. PHILADELPHIA: KING & BAIRD, PRINTERS, No. 607 SANSOM STREET, 1869. (125) RULES OF THE SUPREME COURT IN BANC. [AT LAW.] ‘ [The figures in brackets denote corresponding sections in Walker’s Rules.] RULE 1. APPEALS FROM THE ORPHANS’ COURT. § 1. On all appeals from the decrees of orphans’ Appettants court on the settlement of accounts of executors, feat administrators, or guardians, the appellants shall, before the end of the first week of the term to which the appeal is entered, file with the prothon- otary of the court a specification in writing, of the items to which they except; and on failure to do so, the appeal may be dismissed. (127) 128 SUPREME COURT.—AT LAW. § 2. Arguments. § 4. Cases will be called in order. Fifteen cases to he called each day. Case to be heard if either party is ready. If neither party is ready case to be non prossed. How to obtain preference on the list, How cases to be placed on list, RULE 2. ARGUMENTS. § 2. [1.] The court will call the cases for argu- ment in the order in which they stand on the printed argument list. Fifteen cases only shall be considered as liable to be called on each day during the term, including the one under argument, if not concluded on the preceding day. There will be no computation for the purpose of having cases inserted with ink, and not numbered in the regular printed series. If the parties, or either of them, shall be ready when a case is called, it will be heard or finally disposed of. If neither party be present or ready to proceed with the argument, the case shall be non prossed, unless reason to the contrary be shown to the satisfaction of the court. § 8. [2.] No cause shall hereafter be heard out of its proper order on the list, except as follows: If a preference is claimed, the claim shall be made to the prothonotary two weeks before the com- mencement of the term; and if he allows it, he shall set it down on the list accordingly. If the prothonotary refuse to allow it, the party may appeal to the court, provided he do so within one week after the commencement of the term. § 4. [8.] All cases brought or to be brought up for review, shall be placed upon the trial list next succeeding their entry, and shall not be continued without the order of the court on cause shown. SUPREME COURT.—AT LAW. 129 § 5, Arguments. § 7. § 5. [4.] No case that has been or shall have No caro to be continued been once continued, shall be again continued, twice for Bame cause. unless it be made to appear by affidavit that some new and sufficient cause therefor has arisen since the last continuance. § 6. [5.] Parties shall have liberty, by mutual Coses may consent, to allow their cases to be passed on the frtand. first and second calling thereof for hearing; but = on the third calling every case shall be finally dis. posed of, unless continued for cause. § 7. [6.] On the third calling of the list, absence How eases _ of counsel shall not be a cause for further indul- disposed of gence; but the plaintiff or appellant may argue the «ll. case ex parte, or the defendant or appellee may demand an affirmance, or the case may be sub- mitted on the printed arguments, or otherwise dis- posed of according to the discretion of the court. 130 SUPREME COURT.—AT LAW. g 8. Attorney and Counsel. § 9. RULE 38. ATTORNEY AND COUNSEL. ae § 8. [1.] No person shall be admitted to practise he. as an attorney or counsellor in this court, unless Attorneys of other states. he hath served a regular clerkship within the state, to some practising attorney or gentleman of the law, of known abilities, for the term of four years, and afterwards shall have practised as an attorney in one of the county courts of common pleas, or district courts for the term of one year, or served such clerkship three years, and practised two years: Provided always, That in the case of a person applying to be admitted who shall appear to have studied the law with assiduity, under the direction of some practising attorney or gentleman of the law of this state, for the term of two years after his arrival at the age of twenty-one years, and afterwards practised in some one of the county courts of common pleas or district courts for the term of two years, he may be admitted. § 9. [2.] No person shall be admitted to practice as an attorney of this court, upon the ground that he has been admitted to practise in the courts of some other state, unless he be a citizen of the United States, and also, unless it be shown that the attorneys of this court are entitled, by the practice of the court where the applicant has been admitted, to admission under the like circum- stances. SUPREME COURT.—AT LAW. 131 § 10. Attorney and Counsel. § 12. § 10. [8.] Any person who has been duly gradu- Graduates ated as bachelor of laws, by any college or uni- colleges. versity of this commonwealth, duly incorporated and. authorized by law to pratluate, and who has received a diploma or proper certificate of such graduation, and who has also been admitted to may be practise as an attorney by any court of common patie. ” pleas or district court of this commonwealth, shall be admitted to practise as an attorney of this court. § 11. [4.] All agreements of attorneys touching agreements the business of the court shall be in writing, other- °*t™*: wise they will be considered of no validity. § 12. [5.] No attorney of this or any other court, wo attorney or sherif’’s officer, bailiff or other person concerned fir ithout in the execution of process shall become special '”* bail, surety in a replevin bond, or for the stay of execution, or bail on an appeal or in error, except by special leave of the court previously obtained. 182 § 13. SUPREME COURT.—AT LAW. Bail in Error. § 14. Form of re- cognizance. Condition of recog- nizance. Exception to, how taken. RULE 4. BAIL IN ERROR. § 13. [1.] Recognizances of bail in error shall be plainly drawn and engrossed on parchment or paper, in the following form, or as near as may be: “___. county, to wit: You severally acknowledge to owe (the plaintiff in the action) the sum of (double the sum recovered,) upon the condition that A B prosecute his writ of error with effect; and if judgment be affirmed, that he satisfy and pay the debt, damages, and costs recovered, to- gether with such costs as shall be awarded by occasion of delay of execution, or else you will do it for him.” § 14. [2.] The plaintiff’s attorney may, within twenty days after notice of the taking of the bail in error, except to the sufficiency thereof, when the defendant must either put in new bail, or the old bail must justify within ten days after excep- tion taken ; in default whereof, the prothonotary of this court shall non pros such writ of error. SUPREME COURT.—AT LAW. 188 § 15. Errors and Appeals. § 1%. RULE 5. ERRORS AND APPEALS. § 15. [1.] In all cases brought into this court specitica- by writ of error, the counsel for the plaintiff in err tobe error shall, on or before the third day of the term oe to which the writ is returnable, specify in writing the particular errors which he assigns, and file them in the prothonotary’s office; and on failure so to do, the court may non pros the writ; and on paper book or before the argument of the cause, he shall de- delivered to liver to each of the judges a paper book containing *“*™ a statement of the case, and a copy of the said specification. If he omit to do it the court may non pros the writ. § 16. [2.] In all cases of writs of error to be when issued hereafter, when the record is not returned cence eas on a writ of error, it shall be the duty of the pro- ton prossea. thonotary of this court to enter, that the writ of error is non prossed according to rule of court, 4onid which non pros shall not be taken off by consent of parties. July is not considered a term within this rule. § 17. [8.] In all cases where a writ of error shall writs be pending in this court three years from teste of preetenr writ, arid not continued for cause to a particular adoptea time, which time is not passed, the plaintiff in ees error shall be ready when the cause is next called 134 SUPREME COURT.—AT LAW. § 18. Errors and Appeals. § 21. When tobe for argument, and produce his paper books, or the non prossed. . % court will direct a non pros. Thirty days § 18. [4.] And in cases which have been three argument to Years from teste of writ in this court, or which e given, wherethe shall hereafter be there for three years, and not yearsold. continued for cause, the plaintiff shall, in addition, Aaoptea give thirty days notice before the expiration of Oct. 27, 1834. the three years, to the adverse counsel, if any, or defendant in error, of his intention to argue the On failure, Cause at next term; or on failure to do so, as well beentered, as to produce his paper books, the court will direct a non pros, which non pros will not be taken off without consent of defendant in error in writing. Sikes the § 19. [5.] The prothonotary shall endorse on covet €ach writ of error or certiorari to remove proceed- «part. ings hereafter issued, a rule to appear and plead at the return day of the writ; and on default of ap- Adopted 14th pearance when the cause is called for argument, 137. ’ and on proof of ten days service on the defend- ant in error or his counsel below, the court will proceed ex parte. And it is further ordered, that the court proceed in like manner on proof of the like service of notice in appeal cases. Incerttorai § 20. [6.] In all cases of certiorari, the counsel cationsto be for the party prosecuting the writ shall file a Bee specification and deliver a paper book as in the case of a writ of error, and under the same penalty for omission. Papersnot § 21. [7.] No paper which shall not have been tecoynizea attached to the records by the court below shal paki be considered part of the records, even by consent SUPREME COURT.—AT LAW. 135 § 22. Errors and Appeals. § 28. of the parties, nor shall it in any event be used as attached to the record. such, except when certified by the court below, in oe of a writ of certiorari. g 22. [8.] In all appeal cases, where the appel- ue lants neglect to bring up the record at the next may Dilg term of thts court after the appeal shall have been taken, any of the other parties interested may bring it up, and have the case presented and de- termined ex parte, or the appeal dismissed at the costs of the appellant. § 23. [9.] In all cases where, in pursuance of the when judgment of this court, a cause goes back to the toeatly m court below for further proceedings, it shall be the opinions, duty of the prothonotary to certify and send back with the order, decree or judgment, a copy of the oe! opinion of the court which shall have been filed; 185+ and the fees paid him therefor shall stand as part of the costs in the cause. 136 SUPREME COURT.—AT LAW. § 24, Road Cases. § 24, RULE 6. ROAD CASES. Merits not § 24. [1.] On the return of any certiorari for the be entered : . . into, removal of any order, judgment, or proceedings in relation to a public or private road, this court will not suffer the merits of the case to be entered into, yor wnat Or reverse the order of the sessions, unless for cause this gome irregularity apparent on the record, or that court will reverse, the court below have exceeded their jurisdiction, or have erred in their judgment in point of law. SUPREME COURT.—AT LAW. 1387 § 25. Criminal Cases, g 27. RULE ¥. CRIMINAL CASES. § 25. [1.] In all the criminal cases brought up special from the lower courts by certiorari, wherein a moqaited, 2 special allocatur has not been had, the clerk is in- oe structed by this court to enter, “writ quashed” Fantory and the records shall be returned to the courts ” " from whence they came. § 26. [2.] No certiorari shall be hereafter granted certiorari to remove any indictment from either of the courts aa of criminal jurisdiction of Philadelphia before trial had, except on motion in open court in term time, or by order of a judge in vacation, founded in either case on an affidavit setting forth the grounds | of the application, a copy of which, with notice of Notleate be the time and place of the intended motion, shal] metion for. have been delivered to the opposite party six days previously. Provided, That the court or judge allowing the writ may, if the circumstances re- quire it, allow a shorter notice. g 27. [8.] No such writ of certiorari shall issue Defendants : . . a out on bail at the instance of a defendant who is at the time to enter into out on bail, until he enters into a recognizance in anes. the nature of special bail, to the satisfaction of ‘the court or judge taking the same: conditioned for his appearance before the supreme court in banc, and Condition of at nisi prius, from time to time, as the court may nizaiiee, order, untilithe final determination of the cause, and that he will not depart without the leave of. the said court, or the judge or judges at nisi prius. 10 188 SUPREME COURT.—AT LAW. § 28. Criminal Cases. § 31. Before whom recognizance to be taken. Where writ issues at the suit of the common- Wealth, Where indictment is removed before plea, Proceedings when issue is joined, § 28. [4.] Recognizances of bail under the fore- going rule may be taken by the supreme court, or by the commissioner of bail appointed by the same, or by the court having original jurisdiction, or by any judge of either of the said courts. § 29. [5.] Where the writ of certiorari for the removal of an indictment issues at the instance of the commonwealth, the court in which the indict- ment was found, on the exhibition of the writ and on motion of the attorney for the commonwealth, shall order the defendant to enter into a similar re- cognizance, and in default commit him to jail until he comply with such order or be otherwise dis- charged by due course of law. § 380. [6.] In all cases where an indictment is removed before a plea pleaded, the attorney for the commonwealth may cause the defendant to be immediately arraigned, either in the supreme court in banc or at nisi prius as the case may require, and may demand a plea without any imparlance, unless for cause shown to the satisfaction of the court. § 31. [7.] Upon issue being joined in any crimi- nal case removed as aforesaid, either party may move for process to summon jurors for the trial of all criminal issues pending in said supreme court, or what may be joined therein before trial, and the judge or judges at nisi prius may proceed to receive pleas, try issues, and determine the said causes as freely as could have been done by the court in which the said indictments were found. SUPREME COURT.—AT LAW. 139 § 382. Criminal Cases. § 382. ‘ § 82. [8.] All criminal business in the said court criminal shall be entitled to a preference over the civil busi- ontitied to ness, and after issue joined, or an indictment, and = jurors in attendance, to try criminal issues it shall not be continued at the instance of either party unless on cause shown. 140 SUPREME COURT.—AT LAW. § 83. Incorporations. § 33, RULE 8. INCORPORATIONS. Charterto § 88. [1.] No charter of incorporation will be be deposited * aoa : lace allowed by this court for any association in the teal: city and county of Philadelphia, unless the same shall have been deposited with the prothonotary six days before the same shall be offered to the court ; and it shall be the duty of the prothonotary to post up a list of the charters offered within toner’ the court room; and he shall keep a record of all thetore Charters allowed, in which shall be set forth the slowest. date of incorporation, and the name, style, or title of the company. SUPREME COURT.—AT LAW. 141 § 34. Paper Books. § 36. RULE 9. PAPER BOOKS. § 34. [1.] In a case where the writ of error is to Requisitesot a judgment on a verdict, the paper book of the otpleinttin plaintiff 1 in error shall contain the following mat- ters, in the following order: 1. The names of all the parties as they stood on the record of the court below at the time of the trial, and the form of the action. 2. An abstract of the proceedings, show- ing the issue, and how it was made. 38. The ver- Format dict of the jury, and the judgment thereon. 4. A paper book, history of the case. 5. The points, if any, which were submitted in writing to the court below. 6. The charge of the court. 7. The specifications of error. 8. A brief of the argument for the plaintiff inerror. 9. An appendix, containing the evidence, and if necessary, the pleading in full. § 85. [2:] Where the judgment below is on a where the case stated in the nature of a special verdict, the ee ae facts as agreed on by the parties, the opinion oe the court, and the argument of counsel, will be sufficient. § 36. [8.] In appeals the arrangement of the arrange appellant’s paper book shall be as follows: 1. The paper book names of the parties and the nature of the pro- ™“??** ceedings. 2. A short abstract of the bill or petition and answer. 38. A history of the case. 4. The re- port of the auditor, or master, if there was one. 142 SUPREME COURT.—AT LAW. 8 87. Paper Books. § 40. Formal paris of paper book. In certiorari to the quarter sessions. Formal parts, What the. history of the case must contain. Each error must be specified by itself, ‘When error is to the 5. The exceptions taken to the report in the court below. 6. The opinion of the court on the excep- tions, and the decree made. 1. Assignments of error. 8. Argument on part of appellant. 9. Ap- pendix containing such documentary or other evi- dence as may be necessary. § 87. [4.] In a certiorari to the court of quarter sessions, the paper book shall contain: 1. An abstract list or brief of all the petitions, motions, orders, reports, exceptions, &c., which may be neces- sary to give the court here a full view of the record at once; and this in the precise order of their re- spective dates, and with the date of each prefixed. 2. The exceptions which were overruled or sus- tained by the final order or judgment of the court. 3. The opinion of the court, if it was -filed in writing. 4. Assignments of error. 5. The argu- ment. 6. Appendix, containing the record in full. § 88. [5.] The history of the case must contain a closely condensed statement of all the facts of which a knowledge may be necessary, in order to determine the points in controversy here; and the want of such a statement cannot be supplied by reference to another part of the paper book. § 39. [6.] Each error relied on must be specified particularly, and by itself. If any specification embrace more than one point, or refer to more than one bill of exceptions, or raise more than one dis- tinct question, it shall be considered a waiver of all the errors so alleged. § 40. [7.] When the error assigned is to the charge of the court, the part of the charge referred SUPREME COURT.—AT LAW. 148 § 41. Paper Books. § 46. to must be quoted totidem verbis in the specifica- charge of the . court. tion. § 41. [8.] When the error assigned is to the when error admission or rejection of evidence, the specification samission of must quote the full substance of the bill of excep- veneer tions, or copy the bill in immediate connection with the specification. Any assignment of error not according to this and the last rule, will be held the same as none, § 42. [9.] The brief of the-argument must con- wnat briet tain a clear statement of the points on which the mut" . party relies, with such reasons and arguments as vate he may see proper to add, together with all the authorities which he thinks pertinent. § 43. [10.] When an-authority is cited, the prin- citation of ciple intended to be proved by it must be stated, ““"°""* A naked reference to the book will not be sufficient. § 44, [11.] The paper book of the defendant in paper book error or appellee may, if he chooses, contain no in enor more than his argument, to which sections nine and ten will be held to apply. § 45. [12.] But he may make it to embrace a counter- counter-statement, giving such version of the facts “*™*"* as he asserts to be the true one. § 46. [13.] In cases originating in the county of How paper Philadelphia, the plaintiff in error, or appellant, served in shall serve a copy of his paper book on the opposite i party, or his attorney, at least ten days before the argument. and when the cause is called shall fur- 144 SUPREME COURT.—AT LAW. § 47. Paper Books. § 48. Number of nish one copy to each of the judges, and file two copies to be furnished. How served in the other counties, Where the writ or appeal is taken more than thirty days before the hearing, When parties arein default. with the prothonotary for the reporter. The de- fendant in error shall serve a copy of his paper book on the opposite party or his attorney at least three days before the argument, furnish a copy to- each judge, and file two with the prothonotary. § 47. [14.] In all cases except those originating in the county of Philadelphia, the plaintiff in error or appellant shall serve a copy of his paper book on the opposite party or his attorney, at least ten days before the day appointed for hearing the cases from the county where the cause was tried; and the defendant in error or appellee shall serve a copy of his paper book on the opposite party or his attorney, at least three days before the time appointed for hearing as aforesaid. But if the writ of error or appeal shall have been taken thirty days or more before the day assigned. for the hear- ing as aforesaid, the paper book of the plaintiff in error or appellant shall be served at least twenty days, and that of the opposite party at least five days, before the days assigned for the hearing of the said causes. When the cause is called, each party shall furnish a copy of his paper book to each judge, and file two copies with the prothono- tary, one of which is to remain with the records, and the other to be delivered to the reporter. § 48. [15.] When the plaintiff in error or appel- lant is in default according to these rules, he may be non-suited on motion; and when the defendant in error or appellee is in default, he will not be heard by the court, except on the request of his adversary, and not then if his negligence has been gross. SUPREME COURT.—AT LAW. 145 § 49. Paper Books. g 51. § 49. [16.] When paper books are furnished 11 paper which differ in any material respect from those seaording to here prescribed, the parties furnishing them shall be considered in the same default as if none had been furnished, and on a proper occasion the court will, of its own motion, non-suit or silence the de- faulty party. § 50. [17.] Paper books shall be furnished in the Size of paper shape and size of a'common octavo pamphlet, on ordinary printing paper. § 51. [18.] Section six does not apply to cases Judgment of judgment on facts agreed in the nature of a spe stated cial verdict. In such eases it is enough to say that the judgment is erroneous, without more. But that rule has no other exception. SUPREME COURT RULE. The following Rule was adopted February 6, 1888 :— SUPPLEMENT TO RULE XIX. It is ordered that the following addition be made to Rule XIX, in regard to puper=books : 10. Counsel citing decisions of .this.Court from the leading periodicals shall certify at the end of their brief that such cases are not reported in the State Reports. In the absence of such certificate these cases cited will not be considered. 146 SUPREME COURT.—AT LAW. § 62. Return Days. § 53. RULE 10. RETURN DAYS. When § 52. [1.] The original process made returnable process returnable. Return days of writs of error and appeals, to special return days fixed by the court, or the monthly return days fixed by the act of assembly, shall be as of the preceding term, or annual July return days, respectively, as the case may be, and the process heretofore issued shall be returned ac- cordingly. § 53. [2.] It is ordered, that writs of error and appeals for the Eastern District, be made return- able and be heard as follows: First and Second Mondays of January and the month of February— The city of Philadelphia. Third Monday of Janu- ary—Bucks, Chester, Delaware, Montgomery, and Schuylkill. Fourth Tuesday after First Monday of January—Union and Snyder. First Monday of March—Berks. Second Monday of March—Brad- ford, Luzerne, Susquehanna, Tioga, Wayne and Wyoming. Third Monday of March—WNorthamp- ton, Lehigh, Pike, Monroe, and Carbon. Fourth Monday of March— Warren, McKean, Clearfield, Lycoming, Clinton, Cameron, Elk, Potter, and Sulli- van. SUPREME COURT.—AT LAW. 147 § 54, Short Causes. § 59. RULE 11. SHORT CAUSES. § 54. [1.] The prothonotary of each district shall Directions Teiating to keep a separate list for short causes. ehort causes. § 55. [2.] To this list all causes shall be trans- ME ferred in which the attorney of either party shall short list certify that it is a short cause. § 56. [8.] The causes on this list shall have pre- Short list to cedence over all others on the Wednesday of every precedence. week in which the same causes might be heard, if they had remained on the general list and had been reached in their order. § 57. [4.] Wherea cause has been certified to be when canse a short cause by the attorney of one party, and the bomen attorney of the other party will certify that it is sen not so, and that injustice may be done to his client ‘by placing it on the list of short causes, it shall be put back again on the nee wan | list. § 58. [5.] On the hearing of short causes the speeches speeches of counsel shall be limited to fifteen min- ae utes on each side.' § 59. [6.] The hearing of short causes shall not Regular list be the exclusive business of Wednesdays. When 1 This rule was rescinded 7th June, 1860. 148 SUPREME COURT.—AT LAW. 8 60. Short Causes. § 60. up after they are disposed of, the general list shall be called shorts as on other days; but the short list shall be finished before any other business. It shall be the duty of Noticeof the the prothonotary to put in the court room a copy umes’ of the short list, and this shall be notice of the transfer of the causes which are on it. No party shall be permitted to certify any cause back to the regular list after three days from the time it has been placed on the short list. ae § 60. [7, 8.] These rules shall not abrogate any ee former rules, except those with which they are in- consistent. They apply to all the districts in the state. SUPREME COURT.—AT LAW. 149 Manuscript Rules. 150 SUPREME COURT.—AT LAW. Manuscript Rules. SUPREME COURT.—AT LAW. 151 Mauuscript Rules. 152 SUPREME COURT.—AT LAW. Manuscript Rules. RULES EQUITY PRACTICE ADOPTED BY THE SUPREME COURT OF PENNSYLVANIA MAY 27, 1865, WITH THE REPORT OF THE COMMISSIONERS. To the Honorable the Judges of the Supreme Court of Pennsyloania. The undersigned, a Committee appointed by this Honorable Court on the 9th day of March, 1864, to revise and amend the rules of practice in equity cases, and to report to this Court, RESPECTFULLY REPORT, That in pursuance of the duties of their appointment they have prepared a body of equity rules, of which they submit herewith a copy. In so doing, the Committee beg to point out briefly the more important changes which they have thought it expedient to make in the existing practice. They would observe, at the same time, that, except where such changes have been introduced, they have considered it better to adhere to the language and general scheme of the existing rules. 1. Formal rule days are abolished. Process may issue and rules be taken at any time. On the other hand a sufficient period for appe*rance to process, or for compliance with the usual rules, is expressly limited in each case. By this means a needless waste of time is obviated. 2. The bill and other pleadings are required to be printed, except in two cases : first, poverty certified to by counsel ; secondly, bills for injunc- tion, where, however, a printed copy must be substituted in a few days. The cost of printing is made part of the costs of the cause. 11 (153) 154 SUPREME COURT.—IN EQUITY. § 3. Report of Commissioners. § 12. 8. Subpeenas to appear are abolished. Instead thereof a copy of the bill is to be served on the defendant with a notice endorsed thereon to appear in fourteen days, and that if he does not the bill will be taken pro confesso, and a decree made against him in his absence. 4. Provision is made in case the defendant fails to appear, for a decree pro confesso against him, or for an attachment to compel an answer, which seems to have been overlooked in the present rules. 5. The bill is required to be in as brief and succinct form as it reason- ably can be, and to be divided into paragraphs consecutively numbered, omitting the interrogatories and all mere formal parts. The prayer for relief and for special orders, writs or process, is to be also divided and numbered. 6. Interrogatories to defendant are to be filed separately. So the defendant instead of resorting to a cross-bill may file interrogatories to the plaintiff; and 7. Consequently cross-bills for discovery only are abolished. Those for relief are made substantially part of the original proceedings. 8. Supplemental bills, bills of revivor and the like, are dispensed with ; and their place is to be supplied by amendments and orders in the origi- nal cause. a 9. On interlocutory applications, such as for an injunction or receiver, it is provided that either party may take, or require his adversary to take testimony viva voce in the presence of the Court, subject to cross-exami- nation, as in ordinary cases. This will generally dispense with the use of affidavits, which are demoralizing and unreliable, and at the same time enable the parties to compel the attendance of witnesses by subpoena, which cannot now be done. : 10. Instead of a period of three months in which to close testimony, which in a vast majority of cases is quite unnecessary, a thirty days rule is allowed, subject to enlargement on cause shown. 11. Orders for allowing further time are hereafter only to be granted on notice to the other party. 12. Cautionary orders on injunction bills are abolished. At the same time, that which was their only excuse, the rule that injunctions shali only be granted on notice, is done away with. Cases of emergency some- times occur where there is no time to give formal notice, to prevent irre- parable injury, or where the notice would defeat its own purpose. On the other hand, the security which the law requires before the grant of an injunction and the unwillingness of judges to act without notice to the other party except in extreme cases, afford together a sufficient pro- tection to defendants. To this is added a provision that an injunction SUPREME COURT.—IN EQUITY. 155 § 13. Report of Commissioners. § 13. without notice is made operative only for five days, unless the motion is argued within that time. 13. In the City of Philadelphia, rules and orders to plead or close testi- mony, which would otherwise expire in the months of July and August, are postponed until September. A vacation which elsewhere may bc only a habit is here a necessity. These are the principal alterations which the Committee have made. The object as will be seen has been in the main to shorten and simplify equity proceedings ; to make them less expensive, and at the same time to adapt them to the course of practice and usages which prevail in this State in common law cases. Most of these changes are not untried- They have for a number of years been adopted and in use in England and elsewhere. Other alterations have been made in the existing rules, either to correct their phraseology or to adapt them to recent Acts of Assembly. Besides this the whole body of rules has been re-arranged, so as to give them a more logical order of succession than they now possess. The subject of costs has only been incidentally touched, as it did not appear to be within the province of the Committee. They would, how ever, respectfully recommend it to the Court as one needing revision. All of which is respectfully submitted. GEO. SHARS WOOD, OSWALD THOMPSON, ST. GEO. T. CAMPBELL, GEO. W. BIDDLE, R. C. McMURTRIE, FRED. C. BRIGHTLY, HENRY WHARTON, Committee. RULES OF THE SUPREME COURT IN BANC. [IN EQUITY.] RULE 1. MISCELLANEOUS RULES. § 61. [1.] The equity side of the supreme court, Equity site. district courts and courts of common pleas, shall aan be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and returning mesne and final process and commis- sions, and for making and directing all interlocu- tory motions, orders, rules and other proceedings, preparatory to the hearing of causes upon their mérits. § 62. [2.] The prothonotary’s office shall be open, Prothono- and the prothonotary shall be in attendance there- inaaily | in daily, during office hours, for the purpose of at his offic. receiving, entering, entertaining and disposing of all motions, rules, orders and other, proceedings, which are grantable of course, and applied for or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. (157) 158 SUPREME COURT.—IN EQUITY. Miscellaneous Cases. § 64. Nisi prius to have original cognizance of equity cases in eastern district. In other districts, supreme court to take original cognizance, § 63. [8.] In all cases in equity instituted in the supreme court when sitting in the eastern district, the nisi prius judge, unless otherwise ordered by the court on cause shown, shall take cognizance, and shall hear and decide the same, and make all necessary decrees as fully as the supreme court in banc might or could do, subject to revision accord- ing to the ninth section of the act of 26th July, 1842. The nisi prius shall be open for equity cases on all juridical days. § 64. [4.] When any case in equity, within the meaning of the first section of the act of 8th April, 1852, comes into the supreme court in bane for revi- sion, it shall be certified from district to district until determined, as required by the act aforesaid. All such cases, instituted in other districts than the eastern district, shall be disposed of by the supreme court in banc, without a preliminary reference to the judge at nisi prius, and shall be certified for that purpose from district to district, as the said act requires. SUPREME COURT.—IN EQUITY. 159 § 65. Process and Appearance. g 66. RULE 2. PROCESS AND APPEARANCE, § 65. [5.] No suit shall be deemed pending until the bill be actually filed in the prothonotary’s office. Every bill shall be printed, except in the cases spe- cially provided for in these rules; and the pro- thonotary shall endorse thereon the time of filing the same. § 66. [6.] Unless otherwise provided by law, the defendant or defendants shall be required, in the first instance, to appear and answer the exigency of the bill, by the service upon each defendant therein named, of a printed copy thereof, on which shall be endorsed a notice in the following form: “To the within-named defendant, (here the name of the defendant, upon whom service is to be made, must be inserted.) You are hereby notified and required, within fourteen days after service hereof on you, exclusive of the day of such service, to cause an appearance to be entered for you in the supreme court of Pennsylvania, in and for the eastern dis- trict, (or as the case may be,) to the within bill of complaint of the within-named (here insert the name of the complainant,) and to observe what the said court shall direct. "Witness my hand at (here insert the place where the court is held, the date of notice, and name and.place of business of plain- tiff’s solicitor.) “Norz.—If you fail to comply with the above directions by entering an appearance in the pro- Bills to be printed. Copy of bill to be served on each defendant. Form of the notice to be endorsed on bill. Note to be appended to 160 SUPREME COURT.—IN EQUITY. & 67. Process and Appearance. § 70. notice, Infants may sue by guar- dian ur pro- chein ami. The court to make order as to security. How service co the defendant to be made, Where hus- band and wife or non- residents are defendants, Where cor- poration is defendant, Or the com- monweulth thonotary’s office, within fourteen days, you will be liable to have the bill taken pro confesso, and a decree made against you in your absence.” § 67. [7.] Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, on petition, for infants or other persons, who are under guardianship, or otherwise incapable to sue for themselves ; all infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami, subject, however, to such orders as the court may direct, as to security or otherwise, for the protection of such infants and other persons. § 68. [8.] Service upon a defendant shall be by giving him a printed copy of the bill, with a notice endorsed thereon in the form prescribed in these rules, or by leaving such copy and notice at his dwelling house, with an adult member of his family or the family in which he resides. The court, or a law judge thereof, may direct how service shall be made in special cases. § 69. [9.] In cases where husband and wife are defendants, service of a copy of the bill and notice to appear shall be made on each of them. Service on non-resident defendants shall be made in the mode prescribed by the acts of assembly relating thereto. § 70. [10.] Service of the bill and notice to appear, on a corporation, shall be effected in the mode pre- scribed by law for the service of a writ of summons upon such corporation. Where the commonwealth SUPREME COURT.—IN EQUITY. 161 § 71. Process and Appearance. § 73. is a necessary party, service shall be made in the is « party. manner prescribed by the act of 6th April, 1844. § 71. [11.] Whenever the court shall make an tow servico order under the provisions of the act of 6th April, at 1859, for a service upon a non-resident defendant, defendants without the commonwealth, such service shall be by delivery to him of a copy of the bill, such as is provided for in these rules, together with a copy of the order authorizing such service; and in such form of case the form of subpena shall be similar, in sub- Such cues” stance, to the notice to appear prescribed by these rules, but so varied as to require the defendant to cause an appearance to be entered for him, on or before the time fixed in such special order. § 72. [12.] Whenever the court shall direct ser- How service on non vice by publication, under the provisions of the act: residents iO ade of 6th April, 1859, a copy of such order, together by publica- with a statement of the substance and object of the bill, petition, or other proceeding. shall be published in such one or more newspapers, and at such times as the court shall by special order direct, having regard to the probable residence of the defendant, and affidavit filed stating all the knowledge or in- formation of the complainant or deponent, in refer- ence to such defendant’s place of residence. § 73. [13.] Upon filing the bill the prothonotary prothonot'y shall enter the suit upon his docket as pending in ondocker. the court, and shall state the time of entry; and upon the filing of an affidavit of the due service of notice to appear upon the defendant or defendants, shall enter the same upon the docket. The appear- Appearance, ance of the defendant, either personally or by soli- 162 SUPREME COURT.—IN EQUITY. § 73. Process and Appearance. 8 73. howentered. Citor, shall be by a paper filed and endorsed by the prothonotary, with the time of filing the same, and shall be noted on the margin of the equity docket. Indofault of If the defendant shall not cause an appearance to coufescp may De entered for him within the time limited for that beentered. purpose, the plaintiff may, at his election, enter an order as of course in the cause, that the bill be taken pro confesso, or proceed by attachment as is hereinafter provided by rule 29, SUPREME COURT.—IN EQUITY. 163 § 74, Pleadings generally. § 74. RULE 3. PLEADINGS GENERALLY. § 74. [14.] All bills, interrogatories, demurrers, Bits, inter- pleas, answers to bills, and to interrogatories, and ie, ie her amendments of pleadings, where such amendments ae exceed one hundred consecutive words, shall be printed on white sized paper of a convenient size. Amendments shall be printed on one side only of the paper. Each party appearing by separate counsel fach party shall be entitled to ten copies of all such pleadings. te copies. The amount paid for printing shall be allowed as costs of the cause. This rule shall not apply where ale not to counsel shall certify that his client, by reason of patties are poverty, is unable to pay for the same. In which ease, instead of ten printed copies, each party shall where client is be entitled to one fairly written copy of all plead- Cae ings, interrogatories, &., and in such case any °f printing. other party may print such papers, and be allowed. for the expense at the termination of the cause, or when the court shall see fit to order the payment by the other party. The prothonotary shall not permit any such unprinted pleadingy to be filed, saving with such a certificate, and saving also bills for injunction where counsel shall certify that there wnen vins has not been time to print the same. And such fleas to be injunction bills shall be withdrawn and deemed ""* finally dismissed as of course, unless within twenty days after filing of the same, printed copies are filed and served. . 164 SUPREME COURT.—IN EQUITY. 8 75. Structure of Bill. § 76. RULE 4. STRUCTURE OF BILL. Bill to be § 75. [15.] Every bill shall be expressed in as succiney ” brief and succinct terms as it reasonably can be, and eas shall contain no unnecessary recitals of deeds, doc- uments, contracts, or other instruments, in hc verba, or any other impertinent matter, or any How scandalous matter not relevant to the suit. If it impertinent e ‘ matters may do, it may, on exceptions, be referred to a master punged, by any judge of the court for impertinence or scandal, and if so found by him, the matter shall ‘be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a law judge thereof shall otherwise order. If the master shall costs where 2eDort that the bill is not scandalous or imperti- putter isnot nent, the defendant shall be entitled to all costs occasioned by the reference, or the court or any law judge thereof may decide thereon without a reference, unless the case shall require it. Iutrodue § 76. [16.] Every bill, in the introductory part thereof, shall contain the names of all the parties, plaintiffs, and defendants, by and against whom the bill is brought. The form in substance shall Form of be as follows: In the (style of court.) Sitting in equity. Between A B, plaintiff, and C D, defend- ant. To the Honorable the Judges of the said court. Your orator complains and says, &. § 77. [17.] The bill shall be divided into para- graphs consecutively numbered, and shall contain a SUPREME COURT.—IN EQUITY. 165 3 77. Structure of Bill. § 77. succinct statement of the facts upon which the plain- How bin Pp tiff asks relief, and, at his option, the facts which asd what it are intended to avoid an anticipated defence, and catain. such averments as may be necessary under the rules of equity pleading to entitle the’ plaintiff to relief, and the prayer for relief and for special orders, writs, or process, which shall also be so divided and numbéred. The combination clause, the interroga- what to be tories, and the allegation of want of remedy at law °™"** and similar-formal averments, shall be omitted. 166 SUPREME COURT.—IN EQUITY. . § 78. Parties. § 81. RULE 5. PARTIES. | When party § 78. [18.] Where no account, payment, convey- appear and ance, or other direct relief is sought against a party to asuit not being an infant, the party upon service of the notice upon him, need not appear and answer the bill, unless the plaintiff especially requires him so to do, by the prayer of his bill; but he may appear and answer at his option; and if he does If he does not appear and answer, he shall be bound by all SEE saline proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against _ him, unless the court shall otherwise direct. Where § 79. [19.] Where infants or persons not sui infants, &e. aif parties.” JUTIS, are parties, the fact shall be specially stated in the bill, so that the court before or after the service of process may take order thereon as justice may require. Where ~ § 80. [20.] Where persons without the jurisdic- tine tion are proper or necessary parties, this fact shall jurisdiction are parties. be stated in the bill, and they may be brought in by service when they come within the jurisdiction of the court, or under a special order as provided by the acts of assembly. where § 81. [21.] In all cases where it shall appear to the persons tamotbe court that persons who might otherwise be deemed SUPREME COURT.—IN EQUITY. 167 § 82. Parties. 8 83. necessary or proper parties to the suit, cannot be joined as : . : parties. made parties by reason of their being out of the jurisdiction of the court, incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in their discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be with- out prejudice to the rights of the absent parties. § 82. [22.] Where the parties on either side are where very numerous, and cannot without manifest incon- fey“ venience and oppressive delays in the suit, be all "™’°"* brought before it, the court in its discretion may dispense with making all of them parties, and may proeeed in the suit, having sufficient parties before it to represent all the adverse interest of the plain- tiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. « § 83. [23.] In all suits concerning real estate, in suits which is vested in trustees, and such trustees are teal estate competent to sell and give discharges for the pro- Eustoos. ceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary Costu ave, to make the persons beneficially interested in such not bbe made . . artes real estate or rents and profits parties to the suit; ‘i 168 SUPREME COURT.—IN EQUITY: g 84. Parties, § 86. unless 50 ordered by the Court. In suits to execute trusts ina will. Where the demund is joint and several, Defendant may proceed by cross- Dill. Rights of parties not joined. but the court may, upon consideration of the mat- ter on the hearing, if it shall so think fit, order such persons to be made parties. § 84. [24.] In suits to execute the trusts of a will, it shall not be necessary to make the heir-at- law a party; but the plaintiff shall be at liberty to make the heirs-at-law a party, where he desires to have the will established against them. § 85. [25.] In all cases where the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be nec- essary to bring before the court, as parties to a suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. But the defendant may at once proceed by a bill in the na- ture of a cross-bill, against such party as is liable jointly with him, and such party shall be permitted to make himself a party to the original cause, and defend the same, and the proceedings in the origi- nal cause shall, after the service of such cross-bill, be conclusive as to such other party, and if he shall appear thereto, be conducted as if he had been made a party thereto in the first instance. § 86. [26.] If a defendant shall, at the hearing of a case, object that a suit is defective for want of par- ties, not having by plea or answer taken the objec- tion, and therein specified by name or description the parties to whom the objection applies, the court, if it shall think fit, shall be at liberty to make a decree, saving the rights of the absent par- ties. SUPREME COURT.—IN EQUITY. 169 § 87. Parties. § 88. i § 87. [27.] Where the defendant shall, by his Bills answer, suggest that the bill is defective for want want oe of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the equity docket, in the form or to the effect following, that to te set is to say: “Set down upon the defendant’s objec- argument. tion for want of parties.” And where the plaintitf shall not set down his cause, but shall proceed therewith toa hearing, notwithstanding an objec- tion for want of parties taken by the answer, he shall not, at the hearing of the cause, if the de- fendant’s objection shall then be allowed, be entitled, ponaity of as of course to an order for liberty to amend his ne bill by adding parties. But the court, if it think fit, shall be at liberty to dismiss the bill. § 88. [28.] The parties to a suit may at any time Parties may before decree, by agreement in writing, without Bilbo special motion, consent that the bill be dismissed, : with or without costs, as may be stipulated; and upon payment of the costs due to the officers of the court, such agreement shall be entered upon the docket, and the suit shall be thereupon fully ended and discontinued. 12 170 SUPREME COURT.—IN EQUITY. § 89. Pleas, Demurrers, and Decrees Pro Confesso. § 89. RULE 6. PLEAS, DEMURRERS, AND DECREES PRO CONFESSO. Rule to plead, de- duur or answer. When cause may be proceeded in ex parte, When attachment may issue. § 89. [29.] The plaintiff shall be entitled imme- diately after the defendant’s appearance is entered, to a rule on defendant to be entered of course in the prothonotary’s office, to file his plea, demurrer, or auswer to the bill within thirty days after service of notice of such rule; in default of compliance therewith the plaintiff may at his election enter an order as of+course in the cause, that the bill be taken pro confesso. And in such case, and also where the bill is taken pro confesso for want of an appearance, the cause shall be proceeded in ex parte, and the case may be put upon the next equity argument list, diid the matter of the bili may be decreed by the court when there reached in its order, if the same can be done without an answer, upon the allegations in the bill, which without further proof shall be taken as admitted; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the de- fendant to compel an answer, and the defendant shall not, when arrested upon such process, be dis- charged therefrom unless upon filing his answer or otherwise complying with such order as the court or a law judge thereof may direct as to pleading to or fully answering the bill within a period to be fixed by the court or judge, and undertaking to speed the cause; or it shall be in the option of the SUPREME COURT.—IN EQUITY. 171 § 90. Pleas, Demurrers, and Decrees Pro Confesso. § 92. plaintiff, when such rule to plead, answer or demur Process of shall have been served as aforesaid and not com.” plied with, or on default of appearance by the defendant within the time limited therefor, instead: of taking the bill pro confesso, to have process of contempt to compel an answer. § 90. [80.] When the bill is taken pro confesso, when vit and the court shall have proceeded to a decree as eontesso aforesaid, such decree so rendered shall be deemed absolute, unless the court or a law judge thereof shall, within fourteen days after the service of notice of such decree on the defendant, set aside the same and give the defendant time for filing an Leave to dle answer upon cause shown. And no such motion shall be granted, unless the defendant shall under- take to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speeding the cause. § 91. [81.] The defendant may, at any time Defendant before the bill is taken for confessed, or afterwards or needs with the leave of the court, demur or plead to the whole bill or to part of it, and he may demur to part, plead to part, and answer as to the residue; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly denying the fraud and combination and the facts on which the charge is founded. § 92. [82.] No demurrer or plea shall be allowed. pemurrers and pleas to to be filed to any bill, unless supported by affidavit ponent that it is not interposed for delay; and if a plea, 172 SUPREME COURT.—IN EQUITY. § 98. Pleas, Demurrers, and Decrees Pro Confesso. § 97. Form of demurrer, ‘When issue is dee - mined in favor of defendant. When defendant may set down plea, &e., for argument, When demurrer, &e., to be held bad. When plea, &e., is allowed. When plea, that it is true in point of fact. Demurrers shall be substantially in the form following: “ The de- fendant demurs to the whole bill,” “or to so much of the bill, or discovery or relief,” stating the par- ticulars and assigning the reasons or grounds in detail. § 93. [83.] The plaintiff may set down the de- murrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. § 94. [84.] If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argu- ment within ten days after service of the same, the defendant may set it down for argument on five days notice. § 95. [85.] No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to, or because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. § 96. [86.] If, upon the hearing, any demurrer or plea shall be allowed, the court may, in its dis- cretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. § 97. [87.] If, upon the hearing, any demurrer SUPREME COURT.--IN EQUITY. 173 § 97. Pleas, Demurrers, and Decrees Pro Confesso. 8 97. or plea is overruled, unless the court shall be satis- fied that it was intended for vexation and delay, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, at such period as, consistently with justice and the rights of the defendant, the same can, in the judg- ment of the court, be reasonably done; in default whereof the bill shall be taken against him, pro confesso, and the matter thereof proceeded in and decreed accordingly ; and such decree shall also be made when the court deems the plea or demurrer to have been for vexation and delay, and to have been frivolous or unfounded. or demurrer is overruled. When Dill to be taken against the plaintiff. 174 SUPREME COURT.—IN EQUITY. § 98. Answers and Cross-Bills. § 98. RULE 7. ANSWERS AND CROSS-BILLS. Requisitesof + § 98. [38.] The defendant shall make answer to abower, What matters of defeuce may be insisted on, Example as to matters to be auswer- ed. all the material allegations of the bill. The answer of a defendant must be in the first person, and divided into paragraphs, numbered consecutively, each paragraph containing, as nearly as may be, a separate and distinct allegation. The rule, that if the defendant submits to answer, he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might, by plea or demurrer protect himself from such answer and discovery. And the defendant shall be entitled in all cases, by answer, to insist upon all matters of defence in law, (not being matters of abatement, or to the charac- ter of the parties, or of matters of form,) to the merits of the bill, of which he may be entitled to avail himself by a demurrer or plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover, upon filing a demurrer or plea in bar and an answer in support of such plea, touch- ing the matters set forth in the bill to avoid or repel the bar, or defence.—Thus, for example, a bona fide purchaser, for a valuable consideration, without notice, may set up the defence by way of answer, instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. SUPREME COURT.—IN EQUITY. 175 § 99. Answers and Cross-Bills. § 100. §$ 99. [89.] Specific interrogatories to defendants shall not be included in the bill, but may be filed separately. In like manner, any defeidant shall be entitled to file interrogatories to any of the plain- tiffs after he shal] have put in his own answer to the bill. In either case, they may be filed at any time before the taking of testimony is begun, and shall be deemed, with the answers, part of the plead- ings. By special order on notice, they may be filed after testimony has been taken, and answers re- quired at such time as the court or a law judge may order. They shall be divided as conveniently as may be, and numbered. Where there is more than one defendant or plaintiff, the particular in- terrogatories which each is required to answer, shall be specified by a note at the foot of the paper. A copy shall be served on each party required to answer them, or his counsel, and an order of course, to answer within ten days after such service, and on neglect to answer any interrogatory and serve a copy of such answer within that time, the plaintiff or defendant, as the case may be, shall be entitled to move for an attachment to compel an answer. § 100. [40.] A plaintiff or defendant shall be at liberty to decline answering any interrogatory, or part of an interrogatory, when he might have pro- tected himself by demurrer from answering the subject-matter of the interrogatory; and he shall be at liberty so to decline, notwithstanding he shall answer other interrogatories, from which he might have protected himself by demurrer, and the plain- tiff or defendant may, on forty-eight hours notice, set down the matter for a hearing before any law judge of the court, as on an exception to the an- ll tories, After the tes- timony has been taken. Copy of, to be served, with an order to answer When party may decline to answer interroga- tories. 176 SUPREME COURT.—IN EQUITY. ‘ § 101. Answers and Cross-Bills, § 102. Wherethe swer for insufficiency. But where the interroga- areuot full. tories are not fully answered, and no reason is assigned for the omission, the particular objection must be pointed out by exception, to be filed and served at least ten days before the hearing of such exception. The plaintiff or defendant shall be at liberty, before answers to the interrogatories are filed, or pending exceptions, to file or require a replication, and proceed to take testimony without waiver of his right to such answers, or of his ex- ceptions to the answers. \ Practiceas = § 101. [41.] Cross-bills for discovery only, shall bills. not be allowed, but the defendant shall be at lib- erty instead thereof, to file interrogatories to the plaintiff as above provided. In other cross-bills no further reference shall be made to the matters con- tained in the original bill than shall be necessary, but the same may be treated as if incorporated therein. The rules regulating the form of bills How cross shall apply to cross-bills. If no new parties are served. introduced, service of a copy of the cross-bill on the . counsel of the plaintiff in the original bill shall be sufficient. Where other persons are made parties the service shall be in the manner provided in original bills, a copy of such original bill being served, together with the cross-bill, and such new parties shall be entitled to have copies of the an- swer to the original bill as required for the plaintiff. Bafare ' § 102. [42.] Answers and affidavits may be twers, te, Sworn to before any person authorized to admin- to b rns . t. -ister oaths under the laws or usages of this com- monwealth, or of any other state, territory, or country, where the oath is taken. SUPREME COURT.—IN EQUITY. 1i7 § 103. Exceptions to Answers. ~ § 104 RULE 8. EXCEPTIONS TO ANSWERS. § 103. [43.] After answers are filed to interroga- Exceptions tories, the plaintiff shall be allowed twenty days from the service of a copy of such answers on the plaintift’s counsel, to file in the prothonotary’s office exceptions thereto, and no-longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a law judge thereof; and if no exceptions shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. § 104. [44.] Where an exception shall be filed to the answer to any interrogatory for insufficiency, within the period prescribed by these‘rules, if the defendant shall not submit to the same, and file an amended answer within ten days from service of a copy of such exception on the defendant’s counsel, the plaintiff shall forthwith order the prothonotary to set the matter down for a hearing on the next day thereafter appointed for such causes, before a law judge of the court, and shall give notice of such order to the opposite party or his solicitor. And if he-shall not so set the same down for a hearing, the exception shall be deemed abandoned, and the answer shall be deemed sufficient; pro- vided, however, that the court or any law judge thereof may, for good cause shown, enlarge the time for filing an exception or for filing an amended to auswers to be filed within twenty days, Where defendant does not submit to exceptions, Matter to be set down for hearing. Court may enlarge the time for filing exceptions, 178 SUPREME COURT.—IN EQUITY. § 105. Exceptions to Answers. § 106. Exceptions answer in their or his discretion, upon such terms printed. 8 they or he may deem reasonable. Exceptions Where exceptions is allowed. Attachment to compel a better answer, Reference for scandal and imperti- nence. On what terms to be granted, shall be printed, and the expense of printing such as are sustained shall be allowed as costs, to be im- mediately recovered. § 105. [45.] If, at the hearing, any exception shall be allowed, the defendant shall be bound to ° put in a full and complete answer to the particular interrogatory, within ten days, unless the time be enlarged by order of the court, otherwise the plain- tiff shall as of course be entitled to take the bill. so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exception; and the defendant when he is in custody upon such writ, shall not be discharged therefrom but by an onder of the court or of a law judge thereof, upon his putting in such answer and complying with such other terms as the court or judge may direct. § 106. [46.] No order shall be made by any judge for referring any bill, answer, or pleading, or other matter, or proceeding depending before the court for scandal or impertinence, unless exceptions are taken in writing, and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the excep- tions shall be filed within ten days after service of ¢he same upon the party excepting or his counsel, and such exceptions may be set down for heating by either party on forty-eight hours notice, or such other notice as the court may direct to the opposite party. ° SUPREME COURT.—IN EQUITY. 179 § 107. Replications. § 108. RULE 9. REPLICATIONS. § 107. [47.] Whenever the answer of the defend- ant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the gen- eral replication thereto within ten days thereafter, unless he shall set the cause down on bill and answer; and in all cases where the general replica- tion is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to a rule upon him to reply within ten days* after notice of such rule; on failure to file such replica- tion with notice to the defendant’s counsel, the plaintiff shall be deemed to have abandoned his right to traverse the matters alleged in the answer. The replication shall be in substance thus: “The plaintiff joins issue on the matters alleged in the answer.” § 108. [48.] No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same upon motion to the court or a law judge thereof in vacation. General replication to be filed Within ten days, Omissions to file replica- tion, Form of general replication, No special replication to be filed. 180 SUPREME COURT.—IN EQUITY. § 109. Amendments, Supplemental Bills, &c. § 111. RULE 10. AMENDMENTS, SUPPLEMENTAL BILLS, &. Billmaybo § 109. [49.] The plaintiff shall be at liberty, as orevue. @ matter of course, to amend his bill in any matters whatsoever, before answer, plea, or demurrer to the bill, but he shall, without delay, give the de- fendant notice of such amendment, and all rules taken by the plaintiff in the case shall be suspended until such notice is given. How bill § 110. [50.] After an answer, or plea, or demur- amended rer ig put in, and before replication, the plaintiff, answer, may, upon motion or petition, without notice, obtairt an order from any law judge of the court to amend his bill within twenty days thereafter. But after the replication filed the plaintiff shall not be Andafter permitted to withdraw it and to amend his bill, eigetetr except upon an order of a law judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or Afidavit re- delay, or that the matter of the proposed amend- quired. si . - ment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff’s submitting to such other terms as may be imposed by the judge for speeding the cause. After orar § LJ1. [51.] If the plaintiff, so obtaining any to ammonts Order to amend his bill after answer, or plea, or SUPREME COURT.—IN EQUITY. 181 § 112. Amendments, Supplemental Bills, Ete. § 118. demurrer, or after replication, shall not file his amendments or amended bill, as the case may re- quire, in the prothonotary’s office, and serve a copy on the counsel of all other parties to the cause, who appear by counsel within the time appointed for making such amendments, he shall be consid- ered to have abandoned the same, and the cause shall proceed as if no application for any amend- ment. had been made. § 112. [52.] In every case where, after answer filed, an amendment of the bill is made in such particulars as to vary the case or the grounds of relief, the defendants shall be at liberty to demur or plead to the amended bill or to the amendments, as if no answer had been filed, and the answer to the original bill shall not, unless the defendant faila to put in another answer when required, be used except as an admission of the facts therein stated, subject to explanation by the answer subse- quently filed. Answers to amendments may be required at such times as the court or a law judge upon notice shall direct, and shall be in other re- spects subject to the rules regulating answers to the original bill. § 113. [53.] After an. answer is put in, it may be amended as of course, in any matter of form, or by filling up a blank, or correcting a date, or refer- ence to a document, or other small matter, and be re-sworn, at any time before replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or de- to be filed in time. Defendant may demur or plead to amend- ments, Answers to amendments may be required at any time. When answer may be amended. Not after replication without special leave. 182 SUPREME COURT.—IN EQUITY. § 114, Amendments, Supplemental Bills, Ete. § 114. Amendment of answers. Amendme’ts to bein lieu of bills of revivor, &¢, How per- sonal repre- sentatives of a deceas’d party to be juined, fences, or qualifying or altering the original state- ments, except by special leave of the court or a law judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit. And in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed and added as a dis- tinct amendment to the original answer, so as to be distinguishable therefrom. § 114. [54.] Whenever the circumstances are such as to require a bill of revivor, supplemental bill, or bill in the natuve of either or both, or where additional or different parties are required to be joined, the same shall be made by way of amend- ment or addition to the original bill, and copies of such amendments or additions being served on the parties to the original bill, or their counsel, on the record, shall entitle the plaintiff to proceed as on an original bill, after service. Where a new party is joined, a copy of the original bill and the amend- ment shall be served as is provided for in the case of original bills. But, where the personal repre- sentative of a deceased party is properly required to be joined, it may be done by stating on the rec- ord the fact of the death, and the grant of letters to such representative, and by service of notice of such statement on such representative: and the cause, without more delay, shall proceed as if such representative had been originally a party, allowing him ten days to appear. SUPREME COURT.—IN EQUITY. 183 § 115. Evidence. § 115. RULE 11. EVIDENCE. § 115. [55.] An order to take the testimony of Depositions ancient, infirm and going witnesses de bene esse before any alderman or justice of the peace of the respective county, or other person therein author- ized by law to take depositions in other cases, may be entered by either party in the prothonotary’s office of course, at any time after the service of process stipulating a reasonable notice to the ad- verse party: so of an order for a commission to any place within the state of Pennsylvania, more than forty miles distant from the county seat‘of the respective county, or to any other state or terri- tory, or to foreign parts. But in case of a com- mission, the interrogatories must be filed in the prothonotary’s office at the time, and written notice of this last order and of the names of the commis- sioners must be served on the adverse party at least fifteen days before the commission issues, in order that he may file cross-interrogatories, or nominate commissioners on his part, if he shall deem it eligible: Provided, That depositions taken. before magistrates in the method prescribed by this rule, shall only be allowed to be read in evidence on the hearing of the cause, in case the same facts shall appear before the examiner appointed to take testimony in the cause after it is at issue, and be certified by him to excuse the production of such witnesses before him as are necessary for the intro- and going witnesses, how taken, Commiss’ns to take depo- sitions. When depo- sitions allowed to be read. 184 SUPREME COURT.—IN EQUITY. 8 116. Evidence. § 117. When depositions may be read. Prothono- tary to give notice of the return of a commission and of filing dupusitions, Exceptions to be within ten days atter notice, Form of last inter- rugatory. duction of depositions taken de bene esse on trials by jury in the same courts, or if taken by the com- missioner before the cause is at issue, under this rule, it shall appear by affidavit at the hearing that the witnesses so examined were aged, infirm, or going out of the country, or that any of them was a single witness to a material fact. § 116. [56.] Upon the return of the commission executed, the same may, at the application of either party, be opened by any one of the judges of the court, in term time or vacation, or by the prothonotary; and the prothonotary shall give notice to the parties of the return of any commis- sion, and of the filing*of depositions taken before any alderman, justice of the peace, or examiner, and the parties shall, within ten days after service of such notice upon them respectively, enter ex- ceptions in writing, if they have any, to the form of the interrogatories or the manner of the execu- tion of the commission, and the taking of the de- positions, or be forever precluded from the benefit of such exceptions, which exceptions when so taken may be put down for hearing by either party giv- ing forty-eight hours notice to his adversary there- of, or such other notice as the court may direct. § 117. [57.] The last of the interrogatories to take testimony shall be stated in substance, thus: “Do you know, or can you set forth any other matter or thing, which may be a benefit or advan- tage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer.” SUPREME COURT.—IN EQUITY. 125 § 118. Evidence. § 119. § 118. [58.] On all interlocutory applications, a8 When wit. nesses may for an injunction, or the appointment of a receiver, either party shall be at liberty to produce his wit- nesses for examination in open court at the hearing of the application, as to all such matters as could be proved by their affidavits, subject to cross-ex- amination as in other cases, or, upon reasonable notice, to require the other party to produce his witnesses for examination in open court, unless sufficient cause be shown to the contrary.* § 119. [59.] The method of taking testimony, except in cases provided for in the foregoing rules, shall be as follows: After the cause is at issue, the court shall appoint an examiner at the request of either party who may first make application, which examiner shall cause such witnesses as either party may name to him to come before him on a reason- able day or days, to be appointed by him, of which he shall give notice to the parties; for the enforc- ing the attendance of which witnesses, either party may have subpeena or subpcenas, returnable before such examiner, to be enforced by the usual process of contempt. ‘The examination shall be conducted by the counsel of the parties viva voce, and the answers of the witnesses shall be reduced to writ- ing by the examiner, and the questions also, if necessary to the understanding of the answer, or if it be required by either party. The testimony of both parties shall be taken before the same ex- aminer, and the defendant shall not be compelled ; to proceed with the taking of his testimony, until Be produced in open court. Method of taking testimony. Examina- tion, how conducted. Testimony of both panics to be taken * This rule was suspended until further orders by the supreme court, 29th June, 1866. 13 186 SUPREME COURT.—IN EQUITY. § 120. Evidence. § 121. before the same examiner, Solemu affirmation may be made in lieu of oath, Rules to close the taking of testimony. When they may be enlarged, the plaintiff has finished, or declared he has none to take, nor shall the plaintiff be compelled to pro- ceed with the rebutting testimony until the defend- ant has completed the testimony on his part; but the court may, upon the special application of either party, upon cause shown, appoint an addi- tional examiner before whom the party making such application may proceed to take his testi- mony, notwithstanding the pendency of the pro- ceeding of his adversary before the examiner first named. § 120. [60.] Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in iieu thereof make solemn affirmation to the truth of the facts stated by him. All affidavits and de- positions shall be taken and expressed in the first person of the deponent; and shall be divided into paragraphs, and each paragraph, as nearly as may be, confined to a distinct portion of the subject. § 121. [61.] Hither party may enter a rule, as of course, on his adversary to close the taking of his testimony within thirty days after notice of such rule; any testimony taken after thirty days notice of such rule shall not be read in evidence at the hearing of the cause. But it shall be in the discretion of the court to enlarge the time on the application of the party against whom such order may have been obtained, upon sufficient cause being shown; and no such rule shall be entered ayainst a party while, by the provisions of the 59th rule, such party is not bound to begin until his adversary has closed. SUPREME COURT.—IN EQUITY. 187 § 122. Masters. § 123, RULE 12. MASTERS. § 122. [62.] The courts may appoint standing masters in chancery in their respective jurisdic- tions, and they may also appoint a master pro hac vice, in any particular case. The compensation to be allowed to every master in chancery for his ser- vices in any particular cause, shall be fixed by the court in its discretion, having regard to all the cir- cumstances thereof; ‘and the compensation shal] be charged upon and borne by such of the parties in the cause, as the court shall direct. The master shall not retain his report as security for his com- pensation; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. § 123. [63.] Whenever any reference of any mat- ter is made to a master to examine and report thereon, the party at whose instance, or for whose benefit the reference is made, shall cause the same to be presented to the master for a hearing within ten days after the day when the reference was made; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. Masters may be appointed. Compensa- tion of masters. May have attachment for fees. Reference to a master, Hearing . before master. 188 SUPREME COURT.—IN EQUITY. § 124. Masters. § 125. Duties of § 124. [64.] Upon every such reference it shall "be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties or May proceed their solicitors; and if either party shall fail to oan appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or in his discretion to adjourn the examination and proceed- ings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all Mustuse Treasonable diligence in every such reference, and aiigence. with the least practicable delay; and either party shall be at liberty to apply to the court or a law judge thereof, for an order to the master to speed the proceedings, and to make his report, and to certify to the court or judge the reasons for any’ delay. Powers of § 125. [65.] The master shall regulate all the “proceedings in every hearing before him, upon every such reference; and he shall have full auth- ority to examine the parties in the cause, upon oath, touching all matters contained in the refer- May compa ence; and also to require the production of all Br ioyies ed books, papers, writings, vouchers, and other docu- ments applicable thereto; where, by the principles . of courts of chancery, the production of them may be compelled, and also te examine on oath, viva voce, all witnesses produced by the parties before him, anc to order the examination of other wit- nesses to be taken, under a commission to be issued upon his certificate by the prothonotary; and also to direct the mode in which the matters requiring SUPREME COURT.—IN EQUITY. 189 § 126. Masters. § 129. evidence shall be proved before him; and generally may direct to do all other acts, and direct all other inquiries ae ea and proceedings in the matters before him which he may deem necessary and proper to the justice and merits thereof, and the rights of the parties. § 126. [66.] All parties accounting before a mas- accounting ter shall bring in their respective accounts in the ele form of debtor and creditor, and any of the other parties who shall not be satisfied with the account so brought in, shall be at liberty to examine the accounting party, viva voce, or upon interrogato- ries before the master, or by deposition, as the master shall direct. § 127. [67.] The master shall be at liberty to master may examine any creditor or other person coming in to creditors. claim before him, either upon written interrogato- ries or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination shall be taken down by the master or by some other person by his order and in his presence, if either party re- quires it, in order that the same may be used by the court, if necessary. § 128. [68.] All affidavits, depositions, and doc- Evidence uments which have been previously made, read, or master. used in the court, upon any proceeding in any cause or matter, may be used before the master. § 129. [69.] No exception will be received to Exceptions, the report of any master, unless the party except- master. ing has filed the same with the master by whom the report has been made, whose duty it shall be, 190 SUPREME COURT.—IN EQUITY. § 129. Masters. § 129. To be filed with master. The hearing be on the exceptions filed with master. How cause set down for hearing. on such exception being filed, to re-examine the subject and amend his report, if in his opinion such exceptions are in whole or in part well founded. And in order to give all parties in interest an opportunity of entering such exception, no master shall file his report until ten days after he has notified to the parties his intention so to do on a day designated, and giving them an opportunity of having access to such report. On the hearing of the question of confirming or setting aside the master’s report, the party excepting thereto shall be confined to the exception made by him before the master, according to the previous requisition of this rule; reserving to the court, however, the power of committing the report again, should jus- tice require it. On the return of the master’s final report, or at such time as may be established by the rules of the particular court, either party may set down the cause for hearing on the next equity argument list, provided that at least four days shall intervene; but if no exceptions be filed as thus provided, the report shall be confirmed at the expiration of twenty days succeeding the day on which it shall have been filed. SUPREME COURT.—IN EQUITY. 191 § 1380. Interlocutory Orders, Generally. § 181. RULE 18. INTERLOCUTORY ORDERS, GENERALLY. § 130. [70.] Any judge of the supreme court, or rowers of district courts, or any law judge of the courts of + common pleas, as well in vacation as in term, may at chambers make and direct all such interlocutory orders, rules, and other proceedings preparatory to the hearing of causes upon their merits, in the sanie manner and with the same effect as the court could make and direct the same in term, reason- able notice of the same being first given to the adverse party or his solicitor, to appear and show cause to the contrary, at such time thereafter as shall be assigned by the judge for the hearing thereof. § 131. ['71.] All motions, rules, orders, and other proceedings made and directed at chambers or at the prothonotary’s office, whether special or of course, shall be entered by the prothonotary in his equity docket, on the day on which they are made and directed, and notice thereof given to the solic- itors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases in which personal notice on the parties is not otherwise specially required. The equity docket shall be kept by the prothonotary at his office, and shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. All notices shall be in writing. judge to grant inter- ocutory orders Motions, &c., to be entered on equity docket. 192 SUPREME COURT.—IN EQUITY. & 132. Interlocutory Orders, Generally. § 184. Motions, &c,, grant- able of course by the pro- thonotary. Hearing of motions, &e., not grantable of course, Order allowing further time, § 132. [72.] All motions and applications in the prothonotary’s office for the issuing of mesne and final process, (except process of sequestration and of attachment to enforce and execute decrees;) for filing bills, answers, pleas, demurrers, and other pleadings; for making amendments to bills and answers; for taking bills pro confesso; for filing exceptions, and for other proceedings which do not by the rules hereafter prescribed require any allow- ance or order of the court, or of any judge thereof, shall be deemed motions and applications grantable of course by the prothonotary of the court; but the same may be suspended, altered, or rescinded by any law judge of the court upon cause shown. § 133. [73.] All motions for rules or orders. and other proceedings, which are not grantable of course, or without notice, shall be made on appli- cation to the court or a law judge at chambers, and entered in the equity docket, and shall be heard at such time thereafter as shall be assigned therefor by the court or judge the time of the making the application; and if the adverse party or his solicitor, after notice thereof, shall not then appear, or shall not show good cause against the same, the motion may be heard by any law judge of the court, ex parte, and granted, as if not ob- jected to, or refused, in his discretion. § 184. ['74.] No order allowing further time shall be made without written notice of the application for such order to the counsel on record of the oppo- site party; and any order which does not recite such notice, or that the counsel attended at the hearing, may be disregarded. SUPREME COURT.—IN EQUITY. 198 § 135. Interlocutory Orders, Generally. e139) § 185. [75.] Cautionary orders in injunction bills shall not be made, nor shall any injunction be allowed except security be given according to law. But whenever an injunction shall be granted with- out previous notice to the opposite party, it shall be taken to be dissolved if the motion be not argued within five days after such notice given, unless otherwise specially ordered by the court or a law judge thereof. ' § 186. [76.] In the city of Philadelphia all rules, or orders to plead or to close testimony, which according to the time prescribed in the foregoing rules, would otherwise expire on any day of the months of July and August, shall be deemed and taken to expire on the same day of the month of September following. § 187. [77.] If, on any interlocutory proceeding, a party shall be ordered to pay the costs thereof, such costs shall be taxed by the prothonotary, and payment thereof may be enforced by attachment and sequestration, or the party to whom the said costs are directed to be paid may, at his option, have a common law writ of execution for the re- covery thereof; and the party against whom such order is made, shall not be allowed to take any further step in the cause until payment of such costs. No injune- tion allowed without security. Provision relating to Philad’a. How payment o, costs enforced. 194 SUPREME COURT.—IN EQUITY. § 188. Decrees and Final Process. § 139. RULE 14. DECREES, AND FINAL PROCESS. Form of § 188. [78.] In drawing up decrees and orders, decree. neither the bill nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceedings, shall be recited or stated’ in the decree or order; but the decree and orders shall begin in substance as follows: “This ‘cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz.:” (Here insert the decree or order.) Decree to be ~~: 139. ['79.] The decree shall be drawn by the ‘itiorsna SOlicitor of the party in whose favor it is, who spy served shall, unless otherwise herein provided, serve a copy thereof on the solicitor of the adverse party, with notice of the time, which shall not be less than three days thereafter, when the same will be submitted to the court; but the court may direct the decree to be entered forthwith, without further notice, upon the same being pronounced, should they think the justice of the case requires it, or when the solicitor of the opposite party is present and does not object to the form thereof. If the opposite party, where notice is required to be given to him, shall not deem such draft of decree in con- tomybe formity with the intentions of the court, he may reiiled. file exceptions thereto before the day of hearing SUPREME COURT.—IN EQUITY. 195 § 140. Decrees, and Final Process. § 142. designated in such notice, which shall be submitted with the draft of the decree on the day so ap- pointed, and thereupon, the court approving of the draft, or correcting the same in conformity with such exceptions, or otherwise, the prothonotary shall enter it in his equity docket, and from thence- forth it shall become the act and decree of the court. § 140. [80.] If the decree or order be merely for the payment of money, the party in whose favor it is made, shall be entitled to have a minute thereof (without waiting for the draft of a more formal decree) entered in the equity docket and placed in the usual form of entering judgments in the judg- ment index of the common law side of the court. § 141. [81.] Unless otherwise provided by law or by these rules, or specially ordered by the court, a writ of attachment, and if the defendant cannot be found, or it may be otherwise thought proper by the court, a writ of sequestration or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court; but the same shall not be issued, unless upon motion and allowance by the court or a law judge thereof § 142. [82.] When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be at liberty to apply forthwith to the court or to a law Exceptions to decree. Decrees, &e., for the payment of money. Process for enforcement of decrees and orders. When writ of assistance to be applied for. 196 SUPREME COURT.—IN EQUITY. § 143. Decrees, and Final Process. § 144. Writ of judge, for an order for a writ of assistance, upon mustne’. the allowance of which the prothonotary shall im- mediately issue the same. Decree for | § 148. [83.] Final process to execute any decree payment o: money, how enforced. Decree for specific per- formance. When writ attachment may issue. When writ of sequestra- tion may issue. Decrees for and against persons not parties. may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the same court in suits at common law in actions of debt or assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or deliv- ering up of deeds or other documents, the decree shall prescribe the time within which the act shall be done, of which the defendant shall be bound. without further service, to take notice; and upon affidavit of the plaintiff, filed in the prothonotary’s office, that the same has not been complied with, the court, if sitting, or any law judge during vaca- tion, may direct the issuing of a writ of attachment against the delinquent party, from which, if at- tached thereon, he shall not be discharged unless upon a full compliance with the decree and the payment of costs, or upon a special order of the court or of a law judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration may, upon motion, be ordered by the court or a law judge thereof, to be issued against his estate upon the return of non est in- ventus, to compel obedience to the decree. § 144. [84.] Every person not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the SUPREME COURT.—IN EQUITY. 197 § 145. Decrees, and Final Process. § 145. same process as if he were a party to the cause; Decress for A and against and every person not being a party to the cause persons not . . arties. against whom obedience to an order of the court ” may be enforced, shall be liable to the same process for enforcing obedience to such order, as if he were a party in the cause. § 145. [85.] Clerical mistakes in decrees or dec- ctericat retal orders, or errors arising from any accidental smenaanle slip or omission, may be corrected by order of the court or a law judge thereof, upon petition, with- out the form or expense of a rehearing. 198 SUPREME COURT.—IN EQUITY. § 146. Rehearing. § 146. RULE 15. Requisites of petition for. When rehearing may be granted, REHEARING. § 146. [86.] Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. shlitz Edwin H. Stin®.... Arthur G. DewAl Thomas J Folef A. Brower Longak Charles 8. Runk* Harry G. Stiles...... James L. Marsteller... |W. Allen Lichtenwalnert. Ellis R_Lichtenwatner.. Allen H Focht........ Morris Hoats......... Jobn D. Uhrich..... Samuel 8 Duffy... ‘Henry J, German........ | J. Marshall Wright.... Thomas F Grosst.. William J Stein*... FB. G. W, Runk.........cc0008 Thomas F. Diefenderfer .. Frank M. Trexler........ Emerson F. Schock Heoury J. O’Neill..... Edward H. Renipger. Alexander P. Crilly}. Walter C Livingston. Milton E. Schadt* David R Hornée..... Clinton A Groman... Oscar J. Stine.... Austin A. Glick. Fred. E Lewis..... AN Ultioh.... ccs iJ. dereminh Snyder. , Allen Hf Sieger.... Frank Jacobs.... Reuben J. Butz........ ar: uF eneesoeee duhe 7, sevee September 13, 1883 soeseees March 4, 1889 -June 7, 1880 June 7, 1880 -June 7 1880 November 9, 1880 January 3, 1881 January 3, 1881 -Januasry 8 1881 sooee DUDE G, 1881 -September 10, 1881 -April 10, 1882 mber 18, 1882 -- Japaary 30, 1883 +. January 80, 1883 «- January 80, 1883 we seeee ADTil, 1883 --.October 10, 1885 «December 21, 1885 eed i -October 8, 1887 ebruary 11. 1838 oe. dune 6, 1889 June 20, 1889 Samuel J Kistler, Ir.......0.sceeeseeeeJUly 1, 1889 --. dune 18, ie | == FEE-BILL ADOPTED BY THE MEMBERS OF THE BAR OF THE THIRD JUDICIAL DISTRICT OF PENNSYLVANIA, COMPOSED OF THE COUNTIES OF NORTHAMPTON AND LEHIGH. ATTORNEY’S FEE-BILL. I. No member of this bar shall act as counsel for any assignee, Retaining trustee, executor, administrator, guardian or committee, of the person or estate of a lunatic or habitual drunkard, nor shall he be concerned in any suit, action, prosecution or pro- ceeding as the attorney of another in the several courts of record of this judicial district, until he has actually received a retaining fee of $10, from the party desiring his services. IL. The following cases are excepted from the operation of the Retaining foregoing rule, to wit: 1. For presenting widow’s appraise- £285 ment the retaining fee shall be $5. 2. For presenting peti- tions for and remonstrances against licenses of hotels and eating-houses, the retaining fee shall be $5, and no such peti- tion or remonstrance shall be presented gratuitously. 3. In (225) 226 : APPENDIX, : Attorney’s Fee-Bill. Retaining fee, Trial fee, New ‘trial. Collections where there is a contest. Collections. where there is no con- test. Assignees, executors, guardians, petitions for the appointment of guardians, the retaining fee shall be $5, for each ward where the estate coming to each ward exceeds $300; where such estate does not exceed $300, one fee of $5 may suffice for the whole service. II. The minimum fee for trying a cause before a jury, arbitra- tors or viewers shall be $25 for each time the cause is tried, except in appeals from the judgments of justices of the peace and criminal prosecutions, in which cases no fee beyond the retainer need be charged. In addition to the foregoing a fee of $10 shall be charged for arguing motion for a new trial, and a fee of $5 in each contested application for the continuance of a cause, - K Iv. Tn addition to the fees aforesaid, commissions on all disputed claims recovered in any adverse proceeding shall be charged as follows, viz. : Where such claim does not exceed $500, ten per cent. ; where it exceeds $500, and is less than $5,000, eight- per cent. on the excess over $500; and where the sum collected exceeds $5,000, five per cent. on the excess over $5,000. V.. In collections by suit or otherwise where there has been no defence upon the merits, the minimum commissions for collec- tions shall be as follows, viz.: Where the sum collected does not exceed $200, ten per cent. : where it exceeds $200 and is. less than $1,000, eight per cent. on the excess over $200 ; Where. it exceeds $1,000 and is less than $5,000, six per cent. on the excess over $1,000; where it exceeds $5,000, four per cent. on the excess over $5,000. In proceedings to enforce collec- tions where there is no defence the retainer and trial fee may be dispensed with, ; VI. In addition to the retainer the minimum fee for acting as counsel to assignees, trustees, executors, administrators, guar- dians, and committees of lunatics and habitual drunkards, APPENDIX. 227 Attorney’s Fee-Bill. shall be as follows, to wit: Where the personal property does not exceed $500, ten dollars, and for each additional $1,000 up to $5,000, ten dollars, and five dollars for eack additional $1,000 or fractional part thereof over $5,000. The fees for conduct-. ing proceedings for the partition, mortgaging or sale of the real estate shall be in addition to the foregoing, and graduated in like manner. VII. For conducting proceedings to inquire into the lunacy or habitual drunkenness of any person where there is no defence and the estate is less than $500, no fee beyond the retainer need be charged. If the estate exceed $500 and there is no defence, the minimum fee shall be $25. Where there is a con- test, the minimum fee shall be $25, and if the estate exceed $2,000, the minimum fee shall be $50. VIII In proceedings for a divorce where the wife is the client, no other fee than the retainer need be charged. Where the hus- band is the client the minimum fee shall be $50. For drawing a bill in equity or answer, and for filing a caveat in the regis- ter’s office, the minimum fee shall be $25. For preparing a cause for and arguing the same in the supreme court, the mini- mum fee shall be $75. Law students shall pay a tuition fee of not less than $100 per annum. Ix. For an opinion upon a question of title to a purchase of real estate, or to a party seeking to invest money on real estate security, where the value of the land or the amount to be in- vested exceeds $1,000, the minimum fee shall be $10, and $5 for each additional $1,000. For a written opinion upon any other question the minimum fee shall be $10. X. The following shall be minimum fees for the services ren- dered, to wit: Writing a will, $10; writing a deed, mortgage Committees, Real estate, Lunacy. Divorce, Bill in equity, Supreme court, Legal opinions, Other ser- vices. 228 APPENDIX. Attorney’s Fee-Bill. Other ser- vices, Borough solicitor. or mechanic’s lien, $5; consultation fee, $10; conducting land- lord and tenant proceedings before justice, $10; proceedings for the erection or division of townships and election districts, $25, and never gratuitously ; proceedings for the incorporation of boroughs where there is no contest, $50, and where there is a eontest, $100; acting as solicitor for a borough, school district, or township, per annum, $50; and for any professional ser- vices whatever, $5. “MEMORANDA. 229 Reminiscences of the Bar, Ete. 230 MEMORANDA. Reminiscences of the Bar, Ete. MEMORANDA. 231 Reminiscences of the Bar, Etc. 232 MEMORANDA. Reminiscences of the Bar, Ete. MEMORANDA. 2338 Reminiscences of the Bar, Ete. 234 MEMORANDA. Reminiscences of the Bar, Etc. MEMORANDA. Reminiscences of the Bar, Ete. 236 MEMORANDA. Reminiscences of the Bar, Etc. MEMORANDA. 237 Reminiscences of the Bar, Etc. 238 MEMORANDA. Reminiscences of the Bar, Ete. INDEX © RULES AT LAW AND IN EQUITY OF THE SUPREME COURT OF PENNSYLVANIA. 1. RULES AT LAW. AFFIDAVIT. To procure second continuance, § 5. To remove criminal cases in Philadelphia, § 26. AGREEMENTS. . Of counsel must be in writing, § 11. APPEALS. From decrees upon accounts of executors, &., § 1. Must file specification of items objected to, § 1. Rule to appear and plead to be endorsed, § 19. Where appellant neglects to bring up record, § 22. Where procedendo awarded, opinion to be certified, § 28. ARGUMENT. Cases for, to be called in their order, § 2. To be heard if either party is ready, § 2. If neither party is yeady, case to be non prossed, § 2. Reference in order of, how obtained, § 3. Not to be twice continued for same cause, § 5. Nor continued at all without cause shown, § 4. z May be passed on first and second call, § 6. But not on third call without cause, § 6. Absence of counsel on third call not cause, § 7. Paper books to be furnished to judges, &c., § 46. On short causes not to exceed fifteen minutes, § 58, ATTORNEYS. Requisites for admission of, § 8. Admission of, from other states, § 9. Graduates of law schools, § 10. Agreements of, to be in writing, § 11. Not to become bail, &c., without leave, § 12. Absence of, when not ground for continuance, § 7. (239) 240 INDEX. Supreme Court.—At Law. BAIL. om Attorneys not to become, without leave, § 12. Form of recognizance of, in error, § 18. Exceptions to sufficiency of, in error, § 14. On certiorari in criminal cases, § 27. Before whom recognizance of, to be taken, § 28. Where certiorari sued out by commonwealth, § 29. CERTIORARI. Rule to appear to be endorsed on, § 19. In default of appearance, court will proceed, § 19. Specifications must be filed, § 20. Papers not attached to record to be brought up by, § 21. Where procedendo awarded, opinion to be certified, § 23. In road cases, merits not to be heard, § 24. Not to issue in criminal cases without allocatur, § 25. How obtained in Philadelphia, § 26. By defendant when he is out on bail, § 27. When issued at suit of the commonwealth, § 29. Where indictment is removed on, before plea, § 30. CRIMINAL CASES. Certiorari in, to be specially allowed, § 25. To have preference at nisi prius, § 32. ERROR. Specifications of, to be filed, § 15. If record is not returned writ of to be non prossed, § 16. Writs of, more than three years old, § 17. When thirty days’ notice of argument to be given, § 18, Rule to appear, &c., to be endorsed on writ of, § 19. If procedendo awarded, opinion to be certified, g 23. EX PARTE HEARING. / On third call, cause to proceed ex parte, § 7. On default of appearance, § 19. When record is not brought up by appellant, § 22. INCORPORATIONS. Charter of, how obtained in Philadelphia, § 83. Prothonotary to keep record of charters, § 38. NISI PRIUS. ° ‘What and when issues to be tried at, § 31. Criminal business in, to have preference, § 32. NON PROS. For want of specifications of error, 8§ 1, 15, 20. Where neither party is ready for argument, § 2. On failure to put in new bail or to justify, § 14. When the record is not returned, § 16. Where writ is more than three years old, § 17. On failure to give notice of argument, § 18. For default under these rules, § 48. When paper books are defective, § 49. INDEX. 241 Supreme Court.—At law. NOTICE. : - Of argument of cases three years old, § 18. Of rule to appear and plead, § 19. Of motion for certiorari in Philadelphia, § 26. Of charters of incorporation in Philadelphia, § 33. Of transfer of causes to short list, § 59. PAPER BOOKS. To be delivered to each of the judges, §§ 15, 20, 47. Of plaintiff in error, requisites of, § 34. Where judgment is on a case stated, § 35. Arrangement of, in appeals, § 36. In cases of certiorari, requisites of, § 37. What history of the case must contain, § 38. Each error to be specified particularly, § 39. When error assigned is to charge of the court, § 40. When error is to the admission of evidence, § 41. What brief of argument must contain, § 42. When authority is cited, principle to be stated, § 48. Of the defendant in error, §§ 44, 35. How to be served in Philadelphia, § 46. How to be served in other counties, § 47. Consequence of default under these rules, § 48. Where paper book is defective, § 49. To be in common octavo pamphlet form, § 50. In cases stated general assignment sufficient, § 51. RECORD. If not returned, case to be non prossed, § 16. Papers not attached, not part of, § 21. Tf not brought up by appellant, others may bring up, § 22. RETURN DAYS. Of original process, § 52. Of writs of error and appeals, § 53. ROAD CASES. For what this court will reverse, § 24. Merits of the case not to be entered into, § 24. RULES. To appear and plead to be endorsed on writs, &e., § 19. To apply to.all the districts in the state, § 60. SHORT CAUSES. Separate list of, to be kept by prothonotary, § 54, How causes to be transferred to it, § 55 To have preference over others, § 56. How to be certified to regular list, § 57. Speeches in, to be limited to fifteen minutes, § 58. To be heard on Wednesdays, § 59. TRIAL. Of criminal issues at nisi prius, § 31. Criminal business entitled to preference, § 81. 242 INDEX. Manuscript Rules. INDEX. = 243 Manuscript Rules. 244 INDEX. Manuscript Rules. INDEX. ; 245 a Supreme Court.—In Equity. 2. RULES IN EQUITY. ACCOUNT. Accounting before masters regulated, §§ 126, 127. AFFIDAVIT. For process to non-residents, § 72. Of service of process, § 73. To demurrers and pleas, § 92. Before whom sworn to, § 102. To be evidence before masters, § 128. To be divided into paragraphs, § 120. AFFIRMATION. Allowed, instead of oath, § 120. AMENDMENTS. When to be printed, § 74. To be printed on one side of the paper only, § 74. Each party to be entitled to ten copies, § 74. . ‘Where demurrer or plea is allowed, § 96. Of bill after answer, § 108. Before answer, § 109. Notice of, § 109. After replication, § 110. When amendments to be deemed abandoned, § 111. Defendant may demur or plead to amendments, § 112. Effect of original answer, § 112. Auswers to amendments, § 112. Amendments to answers, § 113. Supplementary matters to be introduced by amendment, § 114. Of decrees and decretal orders, § 145. ANSWERS. To be printed, § 74. Exceptions, § 74. Each party to be entitled to ten copies, § 74. When plea to be supported by, § 91. Defendant’s answer to the bill, § 98. To be divided into paragraphs and numbered, § 98. What may be insisted on by answer, § 98. Before whom sworn to, § 102. Exceptions to answers to interrogatories, §§ 100, 103. Effect of, after amendment of bill, § 112. Answers to amendments, § 112. Amendments to answers, § 113. / APPEALS. To be certified from district to district in certain cases, § 64. 246 ; INDEX. Supreme Court.—In Equity. APPEARANCE. How entered, § 73. In default of, decree pro confesso may be entered, § 73. Or attachment issued, § 78. ARGUMENT. Of objection of want of parties, §-87. Of plea or demurrer, $8 93, 97. Of sufficiency of answer to interrogatories, § 100. Of exceptions to answers, $8 104, 106. Of exceptions to commissions, &c., § 116. ASSISTANCE. When writ of, to issue, $§ 141, 142. ATTACHMENT. To compel answer, §§ 89, 99, 105. To enforce decree, §§141, 148. BILLS. To be printed, §§ 65, 74. Time of filing to be endorsed, No suit to be deemed pending until bill filed, § 65. Copy of, to be served on defendants, § 66. Structure and form of bills, § 75. Reference for impertinence or scandal, § 75. Form of introductory part, § 76. # To be divided into paragraphs, § 77. What averments to be inserted, § 77. Prayer for relief, &c., to be divided and numbered, § 7%. Formal parts and interrogatories to be omitted, § 77. BILLS OF REVIVOR. Subject matter of, to be introduced by amendment, § 114. Service on new parties, § 114. How personal representatives to be made parties, § 114. COMMISSIONS. To take testimony, how issued, § 115. Filing of interrogatories, $115. Nomination of commissioners, § 115. Return of commissions, § 116. Exceptions to execution of commissions, § 116. Hearing of exceptions, § 116. COMMONWEALTH. Service of, process on, § 70. CORPORATIONS. Service of, process on, § 70. COsTs. . Expenses of printing to be allowed as costs, § 74. Of reference for impertinence or scandal, § 75. Of nominal parties, required to answer, § 78. On dismissal of bill by agreement, § 88. On interlocutory proceedings, how payment enforced, § 142. . INDEX. 247 Supreme Court.—In Equity. COURTS OF EQUITY. To be always open for proceedings of course, § 11. Power of, to make rules, § 147. CROSS-BILL. wae filed to bring in other parties jointly liable with defendant, For discovery only, not to be allowed, § 101. Defendant may interrogate plaintiffs, §§ 99, 101. What cross-bills to contain, § 101. Services of copies of, § 101. Rights of new parties, § 101. DECREE. When objection of want of parties is made at the hearing, § 86, Decree pro confesso, $§ 78, 89, 90, 97.. Form of decree, § 138. . Proceedings on entry of decree, § 139. Exceptions to draft of decree, § 139. When to be entered in judgment index, § 140. In whose favor, and against whom enforced, § 149. Amendment of, § 145. DEMURRER. To be supported by affidavit, § 92. Form of, § 72. : May be set down by plaintiff for argument, § 93. Or defendant, on neglect of plaintiff, § 94. Not to be held bad in certain cases, § 95. Tf allowed, plaintiff may have leave to amend, § 96. Effect of disallowance of, § 97. DEPOSITIONS. Of ancient, infirm and going witnesses, how taken, §.115. When to be read in evidence, § 115. Notice of filing, § 116. Exceptions to, § 116. Hearing of exceptions, § 116. To be evidence before masters, § 128. To be divided into paragraphs, § 120. DISCOVERY. Cross-bills for discovery only not to be allowed, § 102. Defendant may interrogate plaintiff, §§ 99, 101. DISMISSAL. Parties may agree that suit be dismissed, § 98. On payment of costs, suit to be discontinued, § 98. DOCKET. To be kept by prothonotary, §§ 73, 181. Entering of appearance, § 73. / Motions and orders to be entered on, § 181. To be open to inspection, § 131. 248 INDEX. Supreme Court.—In Equity. EVIDENCE. ‘ Mode of taking testimony, § 119. Appointment of examiners, § 119, ‘Examination of witnesses, § 119. Affirmations allowed, § 120. Closing of examination, § 121. Before masters, § 128. EXAMINERS. Appointment of, § 119. Duties of, § 119. Closing of examination, § 121. EXCEPTIONS. To answers to interrogatories, § 100, 108. Argument of, § 109. : Time for filing, §§ 104, 106. To be printed, § 104. If allowed, defendant to answer, § 105. Or attachment may issue, § 105. Form of exceptions, § 106. Hearing of, § 106. To execution of commission, or taking of depositions, § 116. To masters’ reports, § 129. Hearing of, § 129. To draft of decree, § 189. EXECUTION. Attachment, 8§ 141, 143. Sequestration, § 141. Writ of assistance, § 142, When common law writ to issue, § 143. EXECUTORS AND ADMINISTRATORS. How to be made parties, § 114, FORMA PAUPERIS. When poverty to dispense with printing of pleadings, § 74. Fairly written copies to be served in such cases, § 74. The other party may print, § 74. ‘ Court may make order for payment of expenses, § 74. FRAUD. Plea denying fraud, must be supported by answer, § 91. GUARDIANS AD LITEM. Appointment of, § 67. HEIRS AT LAW. Need not be made parties to suits to execute the trusts of a will, § 84. May be made parties if plaintiff desires to bind them, § 84. HUSBAND AND WIFE. Service of process on, § 69. INDEX. 249 Supreme Court.—In Equity. ‘ IMPERTINENCE. Reference of bill for impertinence, § 75. Impertinent matter to be expunged at plaintiff's expense, § 75. If not impertinent, defendant to be entitled to costs, § 75. Court or law judge may decide without reference, § 75. INFANTS. May sue by guardian or prochein ami, § 67. Fact of infancy to be stated, § 79. INJUNCTION. Injunction bills may be filed before printing, on certificate of want of time, § 74. Printed copies to be filed and served within twenty days, § 74. In default bill to stand dismissed, § 74. On motion for, witnesses to be examined in court, § 118. Cautionary orders not to be allowed, § 135. Injunction granted without notice to be dissolved unless argued within five days, § 185. INTERLOCUTORY APPLICATIONS. When witnesses to be examined in court, § 118. Powers of judges to grant, at chambers, § 130. To be entered on the docket, § 131. Hearing of, § 133. Order allowfng further time, only to be made on notice, § 184, INTERROGATORIES. To be printed, § 74. Exceptions, § 74. Each party to be entitled to ten copies, § 74. Not to be inserted in bills, 88 77, 99. To be filed separately, § 99. Defendant may interrogate plaintiff, § 99. When interrogatories may be filed, § 99. To be divided and numbered, § 99. Particular interrogatories which each defendant is to answer, to be noted, § 99. To be part of the pleadings, § 99. Service of copy, § 99 Rule to answer, § 99. Attachment to compel answer, § 99. What defendant may decline to answer, § 100. Argument thereof, as on exception for insufficiency, § 100. Exceptions to answers to interrogatories, § 100, 103. For commission to examine witnesses, § 1'75. Form of last interrogatory, § 117. JOINT AND SEVERAL. Plaintiff may proceed against one or more jointly and severally liable, 85 Defendant may file cross-bill against the other parties, § 85. Who may make themselves parties to the original action, § 85. 250 INDEX. 1 Supreme Court.—In Equity. MASTERS. To report on reference for impertinence or scandal, § 75. Appointment of, § 122. Compensation, § 142. Not to retain report as security, § 122. How payment of compensation enforced, § 122. Hearings before, § 123. Duties of, § 124. Powers of, § 125. Accounting before, § 126. Power of, to examine parties, § 127. Evidence before, § 128. Exceptions to reports of, § 129. Filing of reports of, § 129.- Hearing of exceptions, § 129. NISI PRIUS. To have original cognizance of equity cases in the eastern district, § 63. NON-RESIDENTS. Service of process on, §§ 71, 72. Fact of non-residence to be stated, § 80. NOTICE. All notices to be in writing, § 131. ORDERS. Making of interlocutory orders, § 180. Motions and rules of court, § 132. - To be entered in the equity docket, § 181. Motions for, § 133. ; Hearing of motions for, § 188. Orders for further time, to be made, on notice, § 134. Cautionary orders in injunction bills not to be made, § 135. When rules and orders to expire in Philadelphia, § 186. In whose favor, and against whom enforced, § 144. PARTIES. Nominal parties need not appear and answer unless specially re- quired, § 78. But to be bound by the proceedings, § 78. If required to answer, to be entitled to costs, § 78. Infants and parties not sui juris, § 79. Non residents, § 80. Where certain proper parties may be omitted, § 81. Decree to be without prejudice to their rights, § 81. When parties may represent numerous classes, § 82. Trustees to represent parties beneficially interested, § 88. When heirs at law to be made parties, § 84. In suits on joint and several demands, § 85. Decree when objection for want of parties is made at the hearing, § 86. When ES may be set down for hearing on objection for want of parties, § 87. ; Proceedings where defect of parties is apparent at the hearing, § 87. Pik sleet’ Bie hve for pe /4 INDEX. 251 Supreme Court.—In Equity. PLEADINGS. To be printed, § 74. Each party to be entitled to ten copies, § 74. Exceptions in case of poverty, and of injunction bills, § 74. Unprinted pleadings not to be allowed to be filed, § 74. Rule to. plead, demur or answer, § 89. Plea, demurrer and answer may be joined, § 91. When plea to be supported by answer, § 91. Demurrers and pleas to be supported by affidavit, § 92. Plaintiff may set down demurrer or plea for argument, § 98. Or take issue on plea, § 93. Effect of issue determined for defendant, § 93. ‘When defendant may set down demurrer or plea for argument, § 94. Demurrer or plea not to be held bad because not extensive enough, § 95. Or because answer extends to some part of the same matter, § 95. On demurrer or plea being allowed, plaintiff may amend by leave, § 96. If disallowed, defendant to answer, § 97. . In default, decree pro confesso, § 97. Or where plea or demurrer is held vexatious, § 97. ; Replication may be filed before answers to interrogatories or pending exceptions thereto, § 100. Demurrer, plea, or answer to amendments, § 112. PRACTICE. Of English court of chancery, when to prevail, § 148. PRINCIPAL AND SURETY. Plaintiff may proceed against one or more jointly and severally liable, § 85. Defendant may file cross-bill against the other parties, § 85. Who may make themselves parties to the original cause, § 85. PRINTING. All pleadings to be printed, §§ 74, 104. Exceptions, § 74. : When amendments to be printed, § 74. Expense of, to be allowed as costs, § 74. PROCESS. Form of original process, § 66. How served, 8§ 68, 72. In special cases, § 68. On husband and wife, § 69. On corporations, § 70. : On the commonwealth, § 70. On non-residents, §§ 71, 72. PROCHEIN AMI. Infants, etc., may sue by, § 67. PRO CONFESSO. Decree pro confesso, in default of appearance, § 73. Proceedings on decree pro confesso, § 89 When to be deemed absolute, § 90. 4 252 INDEX. Supreme Court.—In Equity. PROTHONOTARY., To be in attendance daily during office hours, § 62. To enter suits pending, § 73. To enter service of process, § 73. Duty of, in reference to these rules, § 149. PUBLICATION. Of subpeena to non-residents, § 72. RECEIVER. On motion for, witnesses to be examined in court, § 118. RELIEF. Prayer for, to be divided and numbered, § 82. REHEARING. Form of petition for, § 146. When to be allowed, § 146, Effect of, § 146. REPLICATION. May be filed before answer to interrogatories, or pending exceptions thereto, § 100. Time for filing, § 107. Rule to reply, § 107. Effect of failure to reply, § 107. Form of, § 107. Special, not to be allowed, § 108. But plaintiff to amend, § 108. SCANDAL. Reference of bill for scandal, § 75. Scandalous matter to be expunged at plaintiff's expense, § 7a. Tf not scandalous, defendant to be entitled to costs, § 75. Court or a law judge may decide without reference, § 75. SEQUESTRATION. When to issue on decree, §§ 141, 148. SERVICE. Of process on defendants, §§ 68, 72. In special cases, § 68. On husband and wife, § 69. . On corporations, § 70. On the commonwealth, § 70. On non-resident defendants, 8§ 71, 72. Proof of, to be entered, § 78. SUBP@NA. To non-residents, form of, § 71. SUITS. Not to be deemed pending, until bill filed, § 65. SUPPLEMENTAL BILLS. . Subject matter of, to be introduced by amendment, § 114. Service on new parties, § 114, INDEX. 253 Supreme Court.—In Equity. SUPREME COURT. To take original cognizance of equity cases, except in the eastern district, § 64. _ TRUSTEES. To represent parties beneficially interested, § 83. Cestui que trust need not be made parties, § 83. Court may direct such persons to be made parties, § 83. WILLS. Heirs at law need not be made parties to suits to execute the trusts of a will, § 84. Plaintiffs may make them parties, in order to bind them, § 84. WITNESSES. How examined, on deposition, or commission, § 115. When to be produced in court on interlocutory applications, § 118. Examination of, § 119. May be affirmed, § 7 54 INDEX. Manuscript Rules. INDEX, BS Manuscript Rules. 256 INDEX. Manuscript Rules. INDEX TO RULES OF THE COURT OF COMMON PLEAS, ORPHANS’ COURT, COURT OF QUARTER SESSIONS. ACCOUNTS. Of assignees and trustees, § 1. When they will be confirmed, § 2. Cost of advertising, § 2. Ske” Confirmation of, in orphans’ court, § 152.‘ /6G ACKNOWLEDGMENT OF SHERIFF'S DEEDS. Court to fix a stated time for, § 188. Objections to, how made and disposed of, § 138, ADMISSIONS FOR PURPOSES OF TRIAL. In actions by or against partners, § 3. Execution of deeds, &c., when admitted, § 4. Tn actions upon promissory notes, &c. 8 5. Where action is upon books of original entry, § 6. In actions not founded upon a writing, § 7. In proceedings against railroad companies, &c., § 8. Of documents not put in issue, § 9. Of statements in the affidavit of claim, § 13. eS In proceedings for a divorce, § 92. ADVERTISING. Accounts of assignees and trustees, § 1. Notice of auditor’s meeting, § 49. Sheriff's sales, expense of, § 136. AFFIDAVIT. When attorney or agent may make, § 18. For sale of attached property, § 32. To hold to bail in certain actions, § 56. To hold to bail for costs, § 70. Of service of subpoena for divorce, § 91. To application under interpleader act, § 106. To reports of sales of real estate, § 176. (257) Leave TA aie§ Team Lens shepfaternes4 fete v 258 INDEX. Common Pleas, Orphans’ Court, and Quarter Sessions. AFFIDAVIT OF CLAIM. What it must set forth, § 10. In what cases unnecessary, § 11. If not filed before return day, § 12. AFFIDAVIT OF DEFENCE. Judgment for want of, in what actions, § 10. Within what time to be filed, § 10. What affidavit must set forth, § 10. In actions upon records, mechanic’s liens, &¢., § 11. Must state if to whole or part of claim, § 18. When filed by one only of several defendants, § 14. Where affidavit of defence is defective. § 15. Supplemental, when to be received, § 15. Must be filed notwithstanding rule to arbitrate, &c., § 16. Judgment for want of, when to be stricken off, § 17. May be made by attorney or agent, § 18. AMENDMENTS. Of bill of particulars, when allowed, § 62. Of pleadings and bills of particulars, § 182. ANSWER. tule to answer in attachments, § 34. Judgment for want of, in attachments, § 35. To libel in proceedings for a divorce, § 92. APPEALS. From justices of the peace, § 10. Defendant to file affidavit of defence, § 10. Plaintiff need not file declaration, § 19. Prothonotary to enter plea of nil debet, § 19. Merits on both sides to be heard, § 19. Judgment of nonsuit, when to be entered, § 20. When judgment for default to be entered, § 21. Appellee may file transcript, § 22. But one counsel on a side to be heard, § 147. APPEARANCE. By plaintiff in appeals from justices, § 20. By defendant at the trial of appeals, § 21. APPRAISEMENT. Widow’s, when to be filed, § 154. Must be presented by attorney, § 154, And recorded by the clerk, § 155. Where widow retains real estate, § 15p. Expense of confirmation and recording, 8 157. ARBITRATION, When rule of reference to be stricken off, § 28. Exceptions to award, when to be filed, § 24. Bail in appeals from award, § 25. INDEX. 259 Common Pleas, Orphans’ Court, and Quarter Sessions. ARGUMENTS. When argument list to be made out, § 26, What matters to be placed on list, § 26. Courts to be appointed for, § 27. In what order causes to be argued, § 27. Which party to begin and conclude, § 28. Of appeals from taxation of costs, § 76. Of exceptions to depositions, § 88. Clerk of orphans’ court to make out list, § 158, In the court of quarter sessions, § 180. ARTISTS. When court. will appoint, § 29. Must subscribe an oath, § 30. Expense of, to be taxed as costs, § 74. ASSIGNEES. Accounts of, how to be advertised, § 1, When auditor to be moved for, § 2. ATTACHMENT. Debts attached to be collected, § 31. Garnishee may pay money into court, § 81. Sale of the attached property, § 32. Rule to answer to be endorsed on writ, § 34. When interrogatories may be filed, § 35. Prothonotary to enter plea of nulla bona, § 36. When garnishee shall pay the costs, § 86. Bail to dissolve foreign attachment, § 37. Rule to dissolve and show cause of action, § 38. Within what time scire facias to issue, § 33. ATTORNEYS. Qualifications for admission of, § 39. Board of examiners to be appuinted, § 40. Applications for admission, § 40. Applicant to be of good character, § 40. Where applicant has been rejected, § 40. To be admitted in coitnty where, &c., § 41. Of other courts, when to be admitted, § 41. Of other states, when to be admitted, § 42. Prothonotary, clerks, &c., not to practise as, § 43. Must subscribe the fee bill, § 48. Shall register names of students, § 44. 4 Agreements of, to be in writing, § 45. [ue fia Not to become bail or surety, § 45. Mt May adopt a tariff of fees, § 46. “ Violation of fee bill to be punished, § 46. fs spe? cf Engagements and absence of, § 47. Qa b Motions of, to be put in writing, § 48. When notices may be served on, § 127. Examination of witnesses by, § 145. i AUDITORS. $< # BS anes Shall be members of the bar, § 49. How notice of audits to be given, § 49. 260 INDEX. Common Pleas, Orphans’ Court, and Quarter Sessions. AUDITORS—continued. To return minutes of their proceedings, § 50. To return the testimony separately, § 50. How to report the law and the facts, § 51. Account and distribution not to be blended, § 51. To report demand for an issue, § 52. Reports to be filed in open court, § 53. ‘When reports of, will be confirmed, § 53. When exceptions may be filed, § 53. Exceptions to be verified by affidavit, § 54. a eeee from decree of confirmation, § 55. ’ ” n the orphans’ court, § 160. {Ce AWARD. ‘When exceptions to be filed, § 24. Bail in appeals from, § 25. BAIL. In appeals from awards, § 25. To dissolve foreign attachment, § 37. Not to be required without affidavit, § 56. When not to exceed $1,000, § 56. For stay of execution, when effectual, § 57. Taken by prothonotary, exceptions to, § 58. ss pm Attorneys, sheriffs, &c., not to become, $@Or 7 Prothonotary to be commissioner of, § 60. On certiorari to justices of the peace, § 64. For costs by non-resident plaintiffs, § 70. When demandable of other plaintiffs, § 71. BILL OF EXCEPTIONS. To admission of depositions, § 89. In trials for murder and manslaughter, § 182 BILL OF PARTICULARS. Either party may enter rule for, § 61. What must be stated in, § 61. Evidence to be confined to bill, § 62. When bill may be amended, § 62. Affidavit of claim, when substitute for, § 68. Affidavit of defence, when substitute for, § 63, When plaintiff not to enter rule for, § 63. Defects in to be demurred to specially, § 132. BOROUGHS. Proceedings for incorporation of, &c., § 184, Clerk to give notice of proceedings, § 184. Exceptions to the proceedings, § 185. BRIDGES. Exceptions to reports of viewers, § 201. When exceptions to be filed, § 201. Where proceedings have failed, § 204. INDEX. 261 Common Pleas, Orphans’ Court, and Quarter Sessions. CERTIORARI. When to be a supersedeas, § 64. When writs of, to be returnable, § 65. How writs of, to be served, § 65. If magistrate fails to make return, § 65. Suggestion of diminution of record, § 67. Rule on justice to produce his docket, § 68. Judgment of reversal to be for costs, § 69. How served where justice is dead, &c., § 69. CITATIONS. When to issue of course against executors, § 153. Petition for to be verified by affidavit, § 153. 2... CLERK OF THE ORPHANS’ COURT. When to issue citation of course, § 153. To record widow’s appraisements, § 155. To make out argument list, § 158. To give notice of new rules of court, 178. CLERK OF THE QUARTER SESSIONS. To make out argument list, § 180. To give notice in borough proceedings, § 184, To tax bills of costs, § 189. To give notice of new rules of court, § 199. COMMISSIONERS TO DISTRIBUTE MONEY. To be members of the bar, § 121. Rules as to auditors, extended to, § 121. COMMISSIONS TO TAKE DEPOSITIONS. Rules for, may be entered of course, § 81. Prothonotary to annex instructions, § 82. CONFIRMATION. How auditor’s reports confirmed, § 53. Appeal from decree confirming report, § 55. Of accounts in the orphans’ court, § 152. Of sales of real estate in orphans’ court, § 177. Of reports of road and bridge viewers, § 201. CONSTABLES. Appointments to fill vacancies, § 186. Proceedings for removal of, § 187. CONTINUANCE OF CAUSES. On account of absence of witness, § 142. When the court will refuse to grant, § 143. Absence, &c., of counsel no grounds for, § 144. In the court of quarter sessions, §§ 206, 208. CORPORATIONS. i Proceedings to change name of, &c., § 188. Proceedings to amend charter, § 188. ae, 7 efi co bem je 7 Y 262 INDEX. Common Pleas, Orphans’ Court, and Quarter Sessions. s COSTS. Of advertising accounts of assignees, &e., § 2. On amendment of bill of particulars, § 62. Where judgment is reversed on certiorari, § 69. Bail for, when plaintiff is a non-resident, § 70. Bail for, when demandable in other cases, § 71. After offer to confess judgment, § 72. Of the term to be paid by party in default, § 78. When garnishee shall pay, § 73. When rule to arbitrate is stricken off, § 74. Of surveyors, &c., and taking depositions, § 74. Bills of, how and by whom to be taxed, § 75. Appeals from taxation of, regulated, § 76. Where plaintiff has become nonsuited, &e., § 77. To be paid before stay of execution, § 105. After defendant has paid money into court, § 122, Expenses of jury of view, to be taxed as, § 150. And expenses of widow’s appraisement, § 157. Taxation of, in court of quarter sessions, § 189. In prosecution, for surety of the peace, &c., § 191. COUNTY OFFICERS. Appointment to fill vacancies, § 192. Proceedings for removal of, § 193. DAMAGES, ‘When to be assessed by prothonotary, § 78. Writ of inquiry of, to be of course, § 79. When inquiry of, to be had in court, § 79. Exceptions to proceedings to inquire of, § 79. Notice of appointment of viewers to assess, § 80. DEFAULT. Assessment of damages in judgment for, § 78. In what actions judgment for, to be entered, § 115. At what time judgments for, may be entered, § 115. DEPOSITIONS. Expense of taking, to be taxed as costs, § ‘74. Rules to take, may be entered of course, § 81. Before whom they may be taken, § 81. Prothonotary to annex instructions to rule, § 82. Notice of taking, under a commission, § 88. Notice of taking, under a rule of court, § 84. Of ancient, infirm, and young witnesses, § 85. When not to be used without subpeena, § 86. When depositions to be returned, § 87. Prothonotary to give notice of return of, § 88. When exceptions to, to be filed, § 88. Exceptions to, not to be heard on the trial, § 89. In taking, parties to notice adjournments, § 90. Under proceedings in the orphans’ court, § 166. Under proceedings in the quarter sessions, § 194. INDEX. 263 Common Pleas, Orphans’ Court, and Quarter Sessions. DIVORCE. Proof of service of subpcena, § 91. Answer to libel must demand issue, § 92. When court will appoint an examiner, § 93. Proceedings before the examiner, § 94. Marriage need not be proved unless denied, § 95. EJECTMENT. When surveyor, &c., will be appointed, § 29. Surveyor, &c., to subscribe an oath, § 80. When plaintiff to furnish abstract of title, § 96. When defendant to furnish abstract of title, § 97. Notice of claim for mesne profits, to be given, § 98. ELECTIONS. Proceedings to set aside undue election, § 196. Of the erection, &c., of new election districts, § 197. EQUITY. New rules of supreme court adopted, § 99. Equity fee-bill adopted, § 100: Fees to be taxed for solicitor, as costs, § 101. Examiner’s fees in equity proceedings, § 102. Prothonotary’s fees in equity proceedings, § 108. Miscellaneous fees in equity proceedings, § 104. EXAMINER. In proceedings for a divorce, § 93. To require proof of notice to appear, § 94. Fees of, in equity proceedings, § 102. EXCEPTIONS. To award of arbitrators, § 24. To bail, in appeals from award, § 25. To auditor’s reports, when to be filed, § 53. To auditor’s reports, to be sworn to, § 54, To bai! for stay of execution, § 57. To bail taken by prothonotary, § 58. To bills of costs, must be sworn to, § 76. To writ of inquiry of damages, § 79. To depositions, when to be filed, § 88. To depositions, when to be disposed of, § 89. To accounts in the orphans’ court, § 152. To widow’s appraisement, § 155. To reports of sales of real estate, § 177. To proceedings to incorporate boroughs, &c., § 185. To reports of road and bridge viewers, § 201. EXECUTION. Bail for stay of, when effectual, § 57. Exceptions to bail for stay of, § 57. Costs on, to be paid before stay, § 105. Notice of application to stay, § 105. Rule under the interpleader act, § 106. When rule will be discharged, § 107. 234 INDEX. Common Pleas, Orphans’ Court, and Quarter Sessions. EXECUTION—continued. Where both parties appear and answer, § 108. Court may award an issue, § 108. Which party to be plaintiff in issue, § 109. Claimant to give bond for return of goods, § 109. When claimant unable, to give bond, § 110. Form of the declaration, § 111. Form of plea to the declaration, § 112. When court will order sale of property, § 113. ¥ Ma l L ‘ EXECUTORS AND ADMINISTRATORS. — Ote4~7 fate qs Accounts of, when to be presented, § 152. Citation against, when of course, § 153. Petitions for discharge of, § 168. < FEE-BILL. ~ = i =~ £29 a cae Attorneys when admitted, to subscribe, § 48. Members of the bar may adopt, § 46. Punishment for violation of, § 46. Equity fee-bill adopted, §$ 100-104. FEIGNED ISSUE. How demanded before auditor, § 52. In proceedings for a divorce, § 92. Pleadings in feigned issues, § 134. To have precedence on trial list, § 149. FOREIGN ATTACHMENT. Debts attached may be collected, § 31. Garnishee may pay money into court, § 31. Sale of the attached property, § 32. When scire facias must be issued, § 33. When attachment will be dissolved, § 38. Rule to answer endorsed on scire facias, § 34, On failure to answer judgment, § 35. When interrogatories may be filed, § 35. Prothonotary to enter plea of nulla bona, § 86. When garnishee shall pay the costs, § 36. Bail to dissolve attachment, § 37. Rule to dissolve and show cause of action, § 38. GARNISHEE. May pay money into court, § 31. Judgment against for want of answer, § 35, ‘When he shall pay the costs, § 73. GUARDIAN. ,Accounts of, when to be presented, § 152. Citation against, when of course, § 153. Petitions for appointment of, § 170. Petitions of, for their discharge, § 171. INQUIRY OF DAMAGES. Writ of, may be entered of course, § 79. When to be made in open court, § 79. INDEX. 265 Common Pleas, Orphans’ Court, and Quarter Sessions. INTERPLEADER. Application for rule to interplead, § 106. Rule may be entered of course, § 106. When rule will be discharged, § 107. When both parties appear and answer, § 108. Court will award an issue, § 108. Who shall be plaintiff in issue, § 109. Claimant to give bond, § 109. When claimant unable to give bond, § 110. Form of the declaration, § 111. Form of plea to the declaration, § 112. When court will order sale of property, § 113. Cases to have precedence on trial list, § 149. - INTERROGATORIES. When to be filed in attachments, § 35. Under commission to take depositions, § 83. JUDGMENT. For want of an affidavit of defence, § 10, May be taken for part of claim, § 13. Against one of several co-defendants, § 14. Where affidavit of defence is defective, § 15. When judgment will be stricken off, 81% Of non suit in appeals from justice, § 20. Where appellant does not appear, § 21. For want of an answer in attachments, § 35. For not answering interrogatories, § 35. For not furnishing bill of particulars, § 61. For want of exceptions in certiorari cases, § 66. By default, how damages assessed, § 78. After writ of inquiry of damages, § 79. Of nonsuit in actions of ejectment, § 96. Motions in arrest of, when to be made, § 114. For default, in what actions to be entered, § 115, For default, when it may be entered, § 115. Of non pros for want of bill of particulars, § 116. For disregard of rules duly served, § 116. After discontinuance or settlement, § 117. Upon warrants over ten years old, § 118. Upon verdict when to be entered, § 125. Upon special demurrer to pleadings, &., § 125. LIBRARIAN. { nauk Plea 11 §%. To be appointed annually by the court, § 119. To collect fines, &c., for library fund, § 119. To purchase books for library, § 120. To make report annually, § 220. Compensation of, for services rendered, § 120, LICENSES. : To sell vinous, spirituous and brewed liquors, § 198. Petitions for, to be presented by attorneys, § 198. So with remonstrances against, § 198. . 266 INDEX. Common Pleas, Orphans’ Court, and Quarter Sessions. MONEY PAID INTO COURT. Under proceedings by attachment, § 31. vommissioners to distribute, § 121. Defendant may pay money into court, § 122. To be deposited in bank, § 128. And drawn out upon an order of court, § 123. Parties may dispose of, by agreement, § T33. / 2 g When paid into the orphans’ court, § 172. MOTIONS. To be put in writing by attorneys, § 48. In arrest of judgment, when to be made, § 114. For new trials, when to be made, § 124. NEW TRIAL. Motion for, when to be made, § 124. Rule for, to go on argument list, § 125. Bill of exceptions, when ground tor, § 126. Motions for, in quarter sessions, § 200. NONSUIT. When to be entered in appeals, § 20. When to be entered in certioraris, § 66. For want of bail for costs, § 70. For not furnishing abstract, § 96. For want of bill of particulars, &e., § 116. Where suits have been marked settled, &c., § 117. On the call of the trial list, § 117. NOTICE. Of filing the accounts of assignees, § 1. Of exceptions to bail on appeal, § 25. Of bail to dissolve foreign attachment, § 37. How notice of audits to be given, § 49. -Of the filing of auditor’s reports, § 53. To justify, and of justifying bail, § 53. Of rule for bill of particulars, § 61. Of rule on justice to return certiorari, § 65. Of the taxation of bills of costs, § 75. Of execution of writ of inquiry, § 79. Of appointment of viewers in railroad cases, § 80. Of taking depositions under commissions, § 88. ° Of taking depositions under rule of cuurt, § 84, Of the return of depositions, § 88. Of objection to deposition on trial, § 89. 4 Of adjournments.in taking depositions, § 90. Of taking depositions in divorce cases, § 94. Of claim for mesne profits in ejectment, § 98. Of application to stay execution, § 105. Of rule under interpleader act, § 106. To be in writing, and how served, § 127. To non residents in suits against executors, § 128, Of new rules of court in common pleas, § 129. Of rule to strike a special jury, § 189. Of trial, trial list to be sufficient, § 149. INDEX. 267 Common Pleas, Orphans’ Court, and Quarter Sessions. NOTICE.—continued. Of the time of holding view, § 150. Of petition for discharge of executors, § 168. Of new rules in the orphans’ court, § 173. Of proceedings to incorporate boroughs, § 184, Of the time of road and bridge views, § 202. ORDER OF BUSINESS. In orphans’ court at stated sessions, § 174, Attorneys not to be heard out of their order, § 175, OYER. When it may be demanded, § 180. Non pros if plaintiff neglects to give, § 180. PARTNERSHIP. When not necessary to prove, on the trial, § 3. Judgment against one of several partners, § 14, PLEADINGS. : No declaration in appeals, § 19. In appeals, nil debet to be entered, § 19. Declaration under interpleader act, § 111. Form of plea under interpleader act, § 112. Cured by demanding bill of particulars, § 131. Defects in, to be demurred to specially, § 132. In proceedings against railroads, &c., § 138. In feigned issues, § 134. POINTS OF LAW. When reserved to be stated on record, § 145. When to be propounded, § 146. In trials for murder and manslaughter, § 183. PROTHONOTARY. To advertise accounts of assignees, § 1. When to enter plea of nil debet, § 19. . When to enter non suit in appeals, § 20. To make out an argument list, § 26. To endorse rule on attachments, § 34. To enter plea of nulla bona in attachments, § 86. How bail taken by, to be justified, § 58. Not to become bail or surety, § 59. To be a commissioner of bail, § 50. To endorse bail on certioraris, § 64. To tax bills of costs in first instance, § 75. Appeals from taxation of, § 76. a To annex instructions for taking depositions, § 82. To give notice of return of depositions, § 88. - And make a minute of the time of notice, § 88. Fees of, in proceedings in equity, § 103. To enter judgment for default, § 115. To enter judgment of non pros, § 116. And against party for neglect of rules, § 116. ‘And where suits are marked settled, § 117. To give notice of new rules of court, § 139. To note objections to sheriff's deeds, § 138. * = o / a" G? f f ae rt 4 i é ¢é : L fret gin. oF oe 3 f Fs 268 . INDEX. Common Pleas, Orphans’ Court, and Quarter Sessions. REAL ESTATE. Affidavit to reports of sales:of, § 176. Sales of, in the orphans’ court, § 177. Security to be entered before order issues, § 178. ROADS. Exceptions to reports of viewers, § 201. Notice of time of view to be given, §§ 202, 203. Where proceedings have failed, § 204. RULES. To admit documents not in issue, § 9. For judgment for want of affidavit of defence, § 15. Of reference no waiver of affidavit of defence, § 16. Nor is a rule to plead such a waiver, § 16. Of reference, when to be stricken off, § 23. | Argument of, who to begin and conclude, § 28. Testimony to be taken by depositions, § 28. To answer writ in attachment proceedings, § 34. To answer interrogatories in attachments, § 35. To disobey foreign attachments, § 38. For bills of particulars, to be of course, § 61. On justices, to return writs of certiorari, § 65. To file exceptions in certiorari cases, § 66. Upon suggestion of dimunition of record, § 67. Upon justices to produce their dockets, § 68. To enter security for costs in certain cases, § 70. To take depo-itions to be of course, § 81. . Instructions to be annexed to such rules, § 82. To take depositions of distant witnesses, § 84. On plaintiffs in ejectment to ftirnish abstract, § 96. On defendants in ejectment to furnish abstract, § 97. On parties under dbp Jaan cat act, § 106. For neglect of judgment to be entered, § 116. To strike a special jury to be of course, § 139. In the orphans’ court, when returnable, § 179. RULES OF COURT. New equity rules adopted, § 99. Notice of new, in the common pleas, § 129. Notice of new, in the orphans’ court, § 178. Notice of new, in the quarter sessions, § 199. Court may abate and relieve from, § 209. Icretofore existing, abolished, § 210. Present rules enacted and adopted, § 210. SCIRE FACIAS. May issue for balance of claims, § 18. When to issue, in foreign attachments, § 83, Rule to answer to be endorsed on, § 84. SHERIFF. Not to become bail or security, § 59. Fees of, in ane in equity, § 104. INDEX. 69 Common Pleas, Orphans’ Court, and Quarter Sessions. SHERIFF—continned. To deliver copy of inventory, § 185. Expense of advertising sales by, § 186. Where to hold sales of real estate, § 137. Acknowledgments of sheriff's deeds, § 188. SPECIAL JURY. Rule to strike, may be entered of course, § 139. How special jury to be struck, § 140. Rule for, no ground for continuance, 141. SURVEYORS. When court will appoint, § 29. Must subscribe an oath, § 30. Expense of, to be taxed as costs, § 74. TRIAL. Merits to be heard in appeals from justices, § 19. Where appellant does not appear at, § 21. Parties to be confined to bills of particulars, § 62. Exceptions to depositions not to be heard on, § 89. Applications for continuance, § 142. When application will be refused, § 143. Absence of counsel no ground for continuance, § 144. Examination of witnesses, § 145. Points of law reserved on the trial, § 145. When points of law to be propounded, § 146. But two counsel on a side to address jury, § 147. Not to be put off, if some of jury have viewed, § 151. In the court: of quarter sessions, § 205. Prisoners to be first entitled to, § 206. Continuances in the quarter sessions, $§ 206, 208. TRIAL LIST. When prothonotary to make out list, § 148. In what order causes to be put down, § 149. In the court of quarter sessions, § 206. TRUSTEES. Accounts of, to be advertised, § 1. When auditor upon accounts of, to be moved for, § 2. VIEWS AND VIEWERS. Notice of appointment of, in railroad cases, § 87. Notice of time of holding the view, § 150. Expense of, to be taxed as costs, § 150. If some of jury have viewed sufficient, § 151. Exceptions to reports of road and bridge, § 201. Notice of the time of road and bridge, §§ 202, 208. WAIVER. Rule to plead, &c., no waiver of affidavit of defence, § 16. Of jury trial in proreedings for a divorce, § 92. 270 INDEX. Common Pleas, Orphans’ Court, and Quarter Sessions. WIDOW’S APPRAISEMENT. To be presented on orphans’ court day, § 154. Must be presented by an attorney, § 154, Exceptions to, when to be filed, § 155. To be recorded in book of accounts, § 155. Where the widow retains real estate, § 156. Expense of confirming and recording, § 157. WITNESSES. Not to be examined at the bar on argument, § 28. Absence of, as grounds for continuance, §:142. When absence of no ground for continuance, § 143. Examination of, how conducted in common pleas, § 145. Examination of, how conducted in quarter sessions, § 205. INDEX. Manuscript Rules. 272 INDEX. Manuseript Rules. [of Leal Cetteme Oot P? ki wiratiee. Ft I Ketter, i Loin th new ti 4 henna treason ST iayeneer oar tain tel ee Cee Presta Sree arte eerie tet are oar tl