(SnrnFU ICam ^rlynnl ICtbraty Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024703997 A TREATISE ON EQUITY PRACTICE IN PENNSYLVANIA \^V^'''^ BY F. CARROLL BREWSTER, LL.D. IN TWO VOLWMES Vol. I. PHILADELPHIA GEORGE T. BISEL LAW PUBLISHER AND BOOKSELLER 725 Sansom Street 189s '/on Entered according to Act of Congress, in the year 1895, by F. CARROLL BREWSTER In the office of the Librarian of Congress, at Washington. PREFACE. It was suggested to the Author some time since that there was a necessity for a work on Equity Practice in Pennsylvania. This casual observation took root, and the result has been an attempt to produce the desired book. It will fall far short ofth^ Practitioner's expectation, for it has many deficiencies. The fact that it was compiled under many adverse cir- cumstances is but a poor apology for its manifold faults. Yet with all this confession there comes the hope that some toiler up the rough hard hill of law may find his burden lightened and his path smoother for these poor efforts to assist him. With this inspiration, and invoking for it the Charity which covers a multitude of faults ; the work is respectfully dedicated to a profession which has ever been loved and honored by the AUTHOR. TABLE OF CONTENTS. Tiie figures refer to the sections, which have been arranged to follow those in Brews. Prac, Vols. I.-IV. CHAPTER I. HISTORY OF EQIHTY IN PENNSYLVANIA. Section Jealousy against Chancery 5035 Penn's Charter 5036 The Great Law 5027 BOls of 1684 5028 ■ Act of 1690 5039 Act of 1701 5030 Act of 1710 , 5031 Act of 1715 5033 Act of 1719 5038 Resolution of May 1730 5034 Constitution of 1776 5085 Constitution of 1790 5036 Grant of Chancery Powers , . . . 5037 CHAPTER II. LEGISLATION AS TO EQUITY JURISDICTION. The Statutory Jurisdiction of the Court of Chancery in England 5038 Pennsylvania Legislation as to Equity 5039 General Grants of Jurisdiction 5040 Partnership and other Accounts 5041 V Vi CONTENTS. Seotioa Fraud, Accident, Mistake, Account „. 5043 Discovery Lost Records ^'^^ Extension of Philadelphia Jurisdiction 5045 For Discovery in Aid of Execution 5046 Requisites of BiU for Discovery in Aid of Execution 5047 Interrogatories in Discovery in Aid of Execution 5048 Scire Facias mr Bills of Discovery in Aid of Execution 5049 Costs in Cases of Discovery in Aid of Execution 5050 Jiurisdiction conferred on Courts of Philadelphia in Dower and Parti- tion 5051 General Grant of Jurisdiction in Dower and Partition 5052 Courts may Refer to a Master in Partition 5053 Duty of Court on Report of Master - 5054 Effect of Decree Confirming Partition 5055 Where Master Reports Property Cannot be divided 5056 Return of Master to Order of Sale , 5057 Confirmation of Past Decrees in Partition 5058 Disputed Boundaries in Philadelphia 5059 Jurisdiction — Tenants in Common of Mines 5060 Jurisdiction as to Charities 5061 Jurisdiction in Cases of Mortgages by Corporations 5063 Jurisdiction — Cases under General Plank-road Law 5063 Jurisdiction as to Apportionment of Wharfage or Dockage 5064 How Chancery Powers to be Exercised — How Process to be Sei-ved. . 5065 Injunctions — Where Eights are Invaded by Corporations 5066 Where Railroads Cross Lines of Railroads 5067 When Injunction shall not Issue 5068 Security in Injunction Cases 5069 Appeal from Decree Granting or Refusing Preliminary Injunction. . . 5070 General Provisions as to Appeals in Equity 5071 Bond to be Given if Stay Desired 5073 Documents to be Deposited 5073 Conveyances to be Deposited 5074 Bond to Provide against Waste 5075 When the Appeal shall be a Stay 5076 Appeals from Decrees other than those of Philadelphia Courts 5077 Decree a Lien — Revived by Scire Facias 5078 Amendments may be Made 5079 CONTENTS. Vii Section Fees — Costs 5()gQ Jurisdiction to Eeform Acknowledgments 5081 Contracts of Decedents for Sale of Real Estate 5082 Mortgagors and Assignors for Benefit of Creditors may Pay into Court Amount Claimed, Secure Satisfaction or Re-conveyance and have the Just Amount Ascertained 5083 "When Bank Declared Fraudulently Insolvent, its Assignee shall File a BiU against OfScers, etc SOSf When Foreign Attachment may Issue in Equity 5085 CHAPTEE III. RULES IN EQUITY OF THE SUPREME COURT OF PENNSYL- VANIA. Equity Side of Court to be Open 5086 Prothonotary's Ofiioe to be Open 5087 Powers of NisiPrius Judge now Abolished — Revision, etc 5088 BiU to be Printed and Filed. 5089 Defendant to Appear and Answer — Notice 5090 Guardians Ad Litem — Appointment 5091 Service of Bill 5092 Service on Husband and Wife, or Non-resident Defendants 5093 Service upon Corporation — When Commonwealth a Party 5094 Service upon Non-resident 5095 Publication 509& Proceedings to be Docketed — Appearance — Decree Pro Confesso .... 5097 Pleadings to be Printed except in Cases of Poverty — Copies to be Served 5098 Scandal or Impertinence not Permitted — Exceptions — Reference — Costs 5099 How BiU Framed 5100 BUI to be Divided into Paragraphs — Prayer 5101 When Defendant need not Appear and Answer 5103 Infants and Parties not Sui Juris 5103 Persons Outside the Jurisdiction 5101 When Parties need not be Joined 5105 Till CONTENTS. Section When Parties Numerous i °^"" Trustees — Cestuis que Trustent — When Parties 5107 Suits to Execute Trusts of WiU— Heirs-at-Law as Parties 5108 Where Defendants Liable Jointly and Severally 5109 Where Objection to Suit for Want of Parties is Made for First Time at Hearing 5110 Objection by Answer to BiU, for Want of Parties, to be Set Down for Argument 5111 Dismissal of Suit by Agreement 5113 Rule to Answer — Decree Pro Confesso — Attachment 5113 When Decree Pro Confesso to be Deemed Absolute 5114 Answers and Demurrers 5115 Affidavit to Demurrers 5116 Demurrer to be Argued 5117 Defendant can Set Down Demurrer upon Notice 5118 When Demurrer Not to be Overruled 5119 Amendment to Bill 5130 When Defendant to Answer, after Demurrer Overruled 5131 Frame of Answer 5133 Interrogatories to be Filed Separate from Bill — May be Filed by De- fendant — Answers 5133 When Interrogatories need not be Answered — Exceptions to Answers. 5134 Cross-bills — Service 5135 Before whom Answer may be Sworn to 5136 Exceptions to Answers to be Filed in Twenty Days 5137 Exceptions to be Printed — Argument 5138 If Exceptions Allowed, Defendant to Answer FuUy — Attachment 5139 Scandal and Impertinence — Exceptions — Argument 5130 Time for Filing Replication— Failure to Reply— Form of Replication. 5131 Special Replication not Allowed 5I33 Amendment to Bill before Answer — Notice 5133 Amendment to Bill after Answer— After Replication 5134 Filing Amendment — Service 55^35 Demurrer or Answer to Amended Bills 5136 Amendment to Answer ^^m Amendments take the Place of Bill of Revivor and Supplemental ^"^ 5138 Depositions — Commissions gjgg Return of Commission —Exceptions 5140 CONTENTS. IX Section Form of Last Interrogatory 5141 When Witnesses may be Heard in Court upon Interlocutory Applica- cation 5142 Examiners — Duties 5143 When Party Examined may Affirm — Depositions to be in First Per- son and in Paragraphs 5144 Rule to Close Taking of Testimony 5145 Court may Appoint Masters — Compensation 5146 Master to be Notified of Appointment 5147 Master to Give Notice — Duties 5148 Proceedings before the Master 5149 Accounting before Master 5150 How Master to Examine Witness 5151 Affidavits, Depositions, Documents Previously Used in Court, may be Offered before Master 5153 Master's Report — Filing — I^otice — Exceptions — Argument 5153 Judge may make Interlocutory Orders in Vacation or Term, and at Chambers as in Court 5154 Motions, Rules and Orders to be Filed — Notice Given 5155 Motions which are of Course 5156 AUowauce of Motions not of Course 5157 Extension of Time — Notice Required — Order 5158 Cautionary Orders Abolished — Ex Parte Injunction — When Dissolved. 5159 Rules and Orders Expiring in Vacation in Philadelphia 5160 Costs on Interlocutory Proceedings — How Enforced 5161 Form of Decree or Order 5163 Decree to be Drawn — Submitted to the Other Side — Exceptions 5163 Minute of Decree — Indexing 5164 How Obedience to Decree Compelled — Attacliment — Sequestration — Writ of Assistance must be Allowed on Motion 5165 Writ of Assistance — To be Allowed when Decree is for Delivery of Possession 5166 Final Process to Execute Decree— Attachment — Sequestration 5167 A Person Not a Party who Obtains Order shall be Entitled to Enforce Obedience to it 5168 Correction of Clerical Mistakes in Decrees and Orders 5169 Petition for Rehearing— AfSdavit thereto— When Granted— Effect. . . 5170 Courts of Common Pleas may Make Further Rules not Inconsistent with these Rules 5171 X CONTENTS. SeotioML Practice of High Court of Chancery in England to be Applied where Practicable 5172 AMENDMENTS TO EQUITY RULES. All Defenses to be Made by Answer or Demurrer 5173 Office of Examiner Abolished except in Certain Cases— Evidence 5174 Testimony to be Taken Before a Judge— Office of Master Abolished except in Certain Cases— Equity Trial List— Proceedings upon Hearing Sl'i^S Requests for Findings— Answers thereto — Filing, etc 5176 When Case can be Referred — Proceedings — Duties of Referee — Ex- ceptions — Argument 5177 When Cause not Referred, Court may Secure Assistance of Account- ant—Costs 5178 How Proceedings Conducted on Trial 5179 Practice on Trial by Jury 5180 Lists Regulated by Orders 5181 Witnesses Examined Viva Voce in Injunction Cases — Proceedings. . . 5183' The Compensation of Referees 5183 Appellant shall File a Brief Statement of Errors 5184 Testimony to be Taken Stenographically 5185 Form of Order to Appear and Answer within Fifteen Days 5186 Rules to have the Force of a Statute 5187 RULES IN EQUITY OF THE SUPREME COURT OF THE UNITED- STATES. Circuit Courts of the United States as Courts of Equity to be Open. . . 5188 Clerk's Office to be Open 5189 Orders and Rules in Vacation — Notice 5190 Motions, Rules, etc., to be Entered in Order Book — Notice. 5191 Motions for Process — Amendments— Decree Pro CoK/esso—G rantable of Course 5192 When Motions Heard by the Court 5193 Subpoena — Attachment— Sequestration — Writ of Assistance 5194 Writ of Execution— Attachment for Contempt of Decree— Sequestra- tion 5195 Writ of Assistance 5j9g '^. ''len Persons not Parties may Enforce Orders and Decrees 5197 \,'::?n Subpoena shall Issue , 5]^98 CONTENTS. xi- Section Return of Subpoena 5199 Service of Subpoena 5200 Alias Subpoena 5201 Affidavit of Service 5203 When Suit Docketed 5303 When Appearance Entered 5204 Filing Demurrer, Pleas or Answer — Decree Pro Confesso — Discovery — Enforcing the Filing of Answer 5205 Decree Pro Con/esso— Practice 5206 Form of Introduction of Bill 5207 Common Confederacy Clause — Charging Clause— Jurisdiction Clause may be Omitted — ^Prayers 5208 Parties 5209 Prayer for Process 5310 BUI to be Signed by Counsel 5311 Costs 5313 Costs on Reference for Scandal and Impertinence 5313 Exceptions for Scandal and Impertinence — Practice 5314 When Amendments to BiUs may be Made as of Course 5315 When Amendments Made upon Order 5216 When Amendments to be Filed 5317 Certificate of Counsel to Demurrer and Pleas — Affidavit 5318 When Demurrer, Plea or Answer to Part of Bill Allowed 5319 Ordering Demurrer or Plea Down for Argument 5330 If Demurrer or Plea Overruled — Costs 5221 If Demurrer or Plea shall be Allowed — Costs — Amendment to Bill. . . 5333 Demurrer or Plea — Good though not Sufficiently Extensive 5323 Replication 5234 Frame of Answer 5335 Discovery 5326 Interrogatories — ^Waiving Answer under Oath 5327 Effect of Waiver of Oath 5328 Note in the BUI as to Answering Interrogatories 5239 Frame of Introduction to Interrogatories 538(1 When Defendant may Decline Answering Interrogatories 5281 AVhen Plaintiff may Amend his BiU — When Answer Required to Amended Bill 5332 Non-resident Party 5333 When Parties Numerous 5334 xii CONTENTS. Section Trustees and Oestuis gue'Trustent as Parties 5235 Heirs as Parties ^^"^^ Joint and Several Claim ^^37 Objection to Parties— Argument— Practice 5238 When Defendant Need not Appear and Answer 5239 Injunctions— How Granted— When Dissolved 5340 When BiU of Revivor Necessary 5241 When Supplemental Bill Necessary 5243 Frame of Bill of Eevivor or Supplemental BUI 5243 Affidavit to Answer 5244 When Amendment to Answer is of Course and when Allowed by Court 5245 When Exceptions to Answers to be Filed 5246 Separate Answer — Costs 5247 When Exceptions to Answers may be Argued — Costs 5248 If Exceptions Allowed — ^When FuU Answer to be Filed — Attachment. 5249 If Exceptions Overruled — Costs 5350 When Replication to be FUed 5251 Examiners — Proceedings before Examiner — Costs — Commissions — Depositions 5253 -Court Limiting Time for Taking Evidence — Commissions — Duties of Examiners 5358 Depositions 5254 Testimony to be Taken in Three Months'. 5355 Going and Infirm Witnesses 5356 Discovery — Practice 5257 When Account of Personal Estate of Testator or Intestate to be Directed 5358 Master to be Advised of Appointment 5359 Meetings— Notice— Delay 5360 Master's Report 5361 Production of Books and Papers before Master — Examination of Wit- nesses 5363 Subpoenas — Attachments 5263 Accounting before Master 5264 Affidavits, Depositions and Documents Previously Filed may be Used before Master 5265 Mode of Examination by Master 5206 Master's Fee — How Regulated — How Enforced 5267 CONTENTS. xiii. Sectiom FDing Master's Report — Exceptions 5268- Costs on Overruling Exceptions 5269 Correction — Amendments 5270 Frame of Decree 5271 Guardians and Prochein Ami 5272 Frame of Petition for Rehearing 5273 Practice to be Regulated from Time to Time and to Accord witli the Practice of tlie High Court of Chancery in England 5274 Affirmation in Lieu of Oath 5275 In Suits to Foreclose Mortgages, a Decree may be Made for Payment of Balance 5276 Injunctions — Cautionary Orders — Practice on Appeal — Act of Con- gress, June 1, 1872 5277 Non-resident Defendants — How Served — Act of Congress, June 1 , 1872. 5278' Bills Against Corporations in Certain Cases Must be Sworn to, etc. . . . 5279i ADDITIONAL RULES IN EQIHTY IN CIRCUIT COURT OF UNITED STATES, FOR THE EASTERN DISTRICT OF PENNSYLVANIA. When Pleadings Must be Printed — Service 5280 Replication — Rule to Reply 5281 Decree Pro Confesso — Practice 5282 Service of Motions — Orders — Rules 5283 Testimony Taken Stenographically — Examiner's Duties 5284 Testimony to be Printed , 5285 Master's Duties 5286 Costs on Overruling Exceptions to Master's Report 5287 Argument sur Exceptions 5288 Statement of Pleadings and Testimony may be Filed 5280 Motion for Injunction — Practice 5290 Stenographer may be Examiner — Fee 5291 Examiner may be Appointed by Consent of Parties 5293 CHAPTEE IV. WHO MAY SUE IN EQUITY. A State 5293 Lunatics 5294 .xiv CONTENTS. Section Infants ^^^^ Rule as to Persons not 8ui Juris ^^^^ Effect of Decree against Infant in his Suit 5397 But not Bound in Case of Fraud, etc 5298 As to Charities 5399 Bankrupts and Insolvents 5300 Absentees 5301 Waiver of Right to Demand Security 5302 When Case at Issue 5303 When the Order for Security will be Made 5304 When Security will Not be Ordered 5305 How Corporations may Sue 5306 How Joint Stock Companies may Sue 5307 How Unincorporated Associations may Sue 5308 Sow Stockholders may Sue 5809 Liability of Directors 5310 As to Eight of a Corporation to Buy and Sell, Re-issue or Divide its Stock 5311 Stockholders may Sue for Dividends 5812 Right of Stockholder to Sue where Corporation Refuses to Bring Suit. 5313 If the BUI be Brought in the U. S. Courts 5314 When Creditors of a Corporation can Sue 5315 When Paupers can Sue 5316 Paupers may be Dispaupered 5317 Defendant may be Admitted to Defend in Forma Pauperis 5318 Allowance Made to Pauper 5319 Petition to Sue in Forma Pauperis 5330 Costs to Pauper 5321 Security for Costs where Poverty Alleged 5332 CHAPTER V. WHO MAY BE SUED IN EQUITY. United States Cannot be Sued 5323 Liability of a Sovereign 5324 "When a Suit against an Officer wiU be Regarded as a Suit against the State 5325 CONTENTS. XV Section "When a State is Liable g32Q ■Corporations must be Sued by Corporate Name 5337 Bills of Discovery against Corporations 5328 Married Women may be Sued ; 5339 "When an Idiot or a Lunatic may be Sued 533O Under the English Practice where Infants are Liable 5331 If there be no Guardian 5333 Guardian Ad Litem 5333 Persons out of the Jurisdiction 5334 Form of Affidavit sur Motion for Order to Serve Bill of Complaint on Non-resident Defendants 5335 Form of Order to Serve Bill Extra-Territorially 5336 Form of Motion to Vacate Order as to Extra-Territorial Service of BiU of Complaint and to Set Aside said Service 5337 CHAPTEE VI. WHO MUST BE JOINED. Trustee a Necessary Party 5338 When Heir-at-Law a Necessary Party 5339 On a BiU to Establish a WiU of Real Estate the Heir-at-Law must be Made a Party 5340 As to Accounts 5341 When Cestuis que Trustent shall be Made Parties 5342 When all Cestuis que Trustent should be Joined 5343 Birth or Death of Party Pending Suit 5344 All Claiming under the Same State of Facts should be Parties 5345 One may Sue for a Number 5346 Persons having an Immediate Interest against the Plaintiff Must be Joined : 5347 A Trustee never Acting need not be Joined 5348 If there be More than One Trustee 5849 When Committees of Lunatics, Assignees of Bankrupts, Executors Durante Minore ^tate, General Executors and Administrators Must be Joined 5350 Mortgagees 5851 Sureties : 5353 Where there is a Multitude it is not Necessary to Join All 5353 XVI CONTENTS. Section When all must be Joined 53o4 Cestuis que Trustent 5355 Subsequent Incumbrancer 5356 Incumbrancers and Purchasers after Suit Brought 5357 Purchase after Suit 5358 Bondholders 5359 When Persons Must be Joined as Defendants who do not have a Direct but a Consequential Interest 5360 CHAPTEE VII. PREPARATION OF BILL. The Attorney's Authority 53B1 Committees of Idiots and Lunatics 5363 Receivers and Assignees in Bankruptcy 5363 The Client's Statement 5364 Parts of the Bill 5365 The Change in England 5366 The Address of Bill 5367 Names and Addresses of the Plaintiffs 5368 Addresses of Infants and Lunatics 5369 Addresses of Corporations 5370 When Plaintiff Sues on Behalf of Himself and of Others 5371 Who are to be Made Plaintiffs 5372 Who are to be Made Defendants 5373 Statement of Facts 5374 Scandal 5375 Requirement of Pennsylvania Rule as to Stating Part of the BiU 5376 Alternate Prayer g3Y7 Impertinence 5378 Bills, Answers and all Pleadings may be Excepted to for Scandal or Impertinence ggr^g What has been Decided to be Scandal 5330 What is not Scandal g3g]^ Exceptions for Impertinence gggg Rules of Court as to Scandal and Impertanenoe 5383 Multifariousness 5354 The Remedy against Multifariousness 5335 CONTENTS. xvii Section Allegation as to Time 5386 Papers, Writings, etc., as Exhibits 5387 Certainty in Averments 5388 Want of Certainty can only be taken Advantage of by Demurrer 5389 As to Filing Interrogatories 5390 As to the Rule to Answer Interrogatories 5391 CHAPTEE VIII. BILL FOR ACCOUNT. Who may File a Bill for an Accoimt 5392 A Tenant in Common can Sue a Co-tenant 5393 When the Bill wiU Lie 5394 When the Bill will not Lie 5395 Arbitration Clauses in Partnership Agreements 5396 A Mere Agreement to Arbitrate without Naming any Arbitrator will not Bar the Filing of a Bill 5397 What is Exclusion by One Partner of his Co-partner 5898 What Entitles a Plaintiff to have a Partnership Dissolved and a Re- ceiver Appointed 5399 What the BiU for Account should Contain 5400 Form of BiU for Partnership Account for Dissolution and for a Re- ceiver 5401 When Certificate of Counsel is Needed to BUI 5403 Common Affidavit to BiU 5403 When an Ex Parte Injunction is asked, or a Motion Made for the Ap- pointment of a Receiver without Notice, a Special Affidavit must be Presented 5404 Form of Special Affidavit 5405 Form of Bill for Account against a Partner on a Parol Contract 5406 Form of Bill by Partner for an Account, to Set Aside an Award of Arbitrators for Gross Misconduct, for Payment of a Claim not Considered by the Arbitrators, etc 5407 If Liability to Account Denied — Interlocutory Decree 5408 Practice on Accounting 5409 Unliquidated Assets 5410 Where BUI FUed Pending Suit at Law 5411 2 XVlll CONTENTS. Section. Appeal from Interlocutory and Final Decree — Defendant who Ad- mits Liability cannot Appeal from Interpleader to Establish Own- ership 5413 CHAPTEE IX. BILL WHERE THE JURISDICTION ARISES FROM ACCIDENT, MISTAKE OR FRAUD, AND HEREIN OF RESCISSION, CAN- CELLATION, RE-EXECUTION, REFORMATION AND RE- DELIVERY. Definition of Accident 5413 When Equity does not Relieve from Accident 5414 When Equity Relieves from Accident 5415 Definition of Mistake 5416 No Relief because of Mistake in Law as to Security 5417 Ignorance of Law 5418 When Equity will Relieve as to a Mistake in Law 5419 Mistake of Fact Induced by Mistake of Law 54:30 Ignorance of Fact, Ground of Relief 5421 Mutual Mistake 5423 Executed Contract in Case of Fraud or Mistake 5423 Where there is no Title 5424 Where Mortgage Satisfied by Mistake 5425 Mistake Must be Mutual — Negligence not Enough 5426 Correcting Mistakes in Wills — No Relief against a Statute 5437 Fraud 5428 Cancellation and Rescission 5439 Tender — Restoration to Statu Quo 543O When Rescission wiU be Decreed 543I Promptness Necessary — Tender 5433 Lien Creditors Must be Made Parties 5433 A Clear Case is Required to Support a Decree for Cancellation 5434 When Cancellation Ordered 5435 No Rescission in Equity where Adequate Remedy at Law 5436 Full Information Bars Cancellation 543^ Damages 5433 Re-execution kjoq When Ee,-delivery ordered -440 CONTENTS. xix Section Eeformation 5441 Reformation according to Intention 5442 Wliat IMust be Shown to Reform 5443 Relief will only be Granted where the Mistake is Established by Clear Proof 5444 Jlistake may be Shown by Parol 5445 Not Necessary to Prove Actual Fraudulent Intent 5446 Evidence Must be Clear and Refer to the Time of Execution 5447 "V'ilien Equity will not Reform — Signing without Reading 5448 Supine Negligence — Mistake as to Legal Effect 5449 When an Absolute Conveyance is Made although a. Mortgage was only Intended to be Given 5450 Deed Cannot be Reformed against Infants by Default, nor on An- swer of Guardian Ad Litem 5451 There Must be Preponderance of Proof 5453 Where Damages may be Awarded though the Bill be Dismissed 5453 "Whei'e there is no Case for Equitable Relief 5454 Directions for Drawing Bill, Praying Relief from Accident or Mis- take 5455 Form of Bill in Case of Accident or Mistake 5456 Form of Bill in Equity for Rescission and Cancellation on Ground of Fraud 5457 Form of Bill in Equity to Set Aside a Contract on Ground of Fraud. . 5458 Form of Bill in Equity to Set Aside Deeds Obtained by Fraud 5459 Form of BiU in Equity to Set Aside a Deed Obtained from an Old Person by Undue Influence — Fraud 5460 Prcecipe for Subpoena 5461 Endorsement on Bill where no Prcecipe for Subpoena Filed 5463 CHAPTEE X. BILLS OF DISCOVERY. Nature of BiUs of Discovery — Inspection ; 5463 Outline of Statutes, Practice 5464 Proceedings to Obtain Discovery from Corporation against which Judgment has been Rendered — Petition to be Filed, etc. — Inter- rogatories — Sequestrator may be Appointed, etc 5465 Auditor-General may in Certain Cases Compel Discovery from Chari- table Corporations or Associations 5466 XX CONTENTS. Section Answer to Bill for Discovery Relating to Fraud under Warrant of Arrest Act, not to be Used in any Other Proceeding 5467 Trustee, etc., under Penal Act of 1860, Must Make Discovery in Civil Proceeding — His Answer not to be Used against Him in Criminal Case 5468 Right of Discovery 5469 An Intention to Bring an Action wiU Support a BUI as Effectually as an Action Actually Commenced 5470 When BiUs of Discovery will not Lie 5471 Structure of Bill 5473 Officers of a Corporation may be Joined 5473 Answer — Interrogatories 5474 Discovery in Aid of an Execution — Requisites — Indexing BiU 5475 Attachment for Contempt 5476 Form of BiU of Discovery Before Suit at Law Brought 5477 Form of BiU of Discovery FUed by a Defendant in Aid of a Suit at Law on Forged Check 5478 Form of Interrogatories 5479 CHAPTEE XI. BILLS BY AND AGAINST CORPORATIONS. Equity Jurisdiction — Generally 5480 Jurisdiction of the Supreme Court 5481 Jurisdiction of the Courts of Common Pleas 5483 Authority to Issue Injunctions GeneraUy 5483 Injunctions where Private Rights or Corporate Rights or Franchises Invaded 5484 Injunctions where Railroads Cross Railroads 5485 Proceedings against Corporations where the Conditions on which Privileges were Granted by an Act of the General Assembly have not been Performed 5435 Abandonment by Certain Corporations 5437 Jurisdiction of aU Litigation between Stockholders and by Creditors, ^*° .' 5488 When Corporation should be Named as Party 5489 When Corporation can be Sued in Equity 549Q Proceedings against Corporations for Acts Ultra Vires 549I CL-i-TiiKTS. XXI Section When Corporations Cannot be Sued in Equity 5492 Form of Bill by a Corporation to Restrain Interference with Corpo- rate Franchise 5493 Bills against Stockholders for Unpaid Subscriptions 5494 Form of Bill by Assignees to Enforce Statutory Liability of Stock- holders in Private Corporations 5495 "When Stockholder can Sue Corporations 5496 What is Required in the United States Courts if Stockholder File a Bill 5497 When a Stockholder can Sue Directors 5498 Proceedings against Officers and Shareholders of State Banks 5499 Such Suit must be Brought in County where Bank Located 5500 Stockholder's Liability is not Primary 5501 When Assignee must Sue 5503 Form of BUI by Stockholder of Banking Company for Receiver — In- junction 5503 Form of Supplemental Bill by a Stockholder against a Railroad Al- leging Insolvency — Default on Mortgage — Decree Already En- tered in Another County 5504 Form of BOl by a Stockholder against Fraudulent Directors to Re- strain Issuing of Bonds — Creation of a Mortgage for a Receiver, etc 5505 Special Injunction Affidavit, and for Receiver 5506 Form of BiU by Stockholders and Creditors against an Insolvent Corporation for a Receiver, etc 5507 Form of BiU by a Member of an Incorporated Beneficial Association for a Receiver, etc. , on the Ground of Insolvency 5508 Form of Bill in United States Court by a Stockholder to Set Aside a Lease made by a Railroad Company Ultra Vires 5509 Form of Bill by a Stockholder against the Corporation and its Direc- tors, for Fraud, etc 5510 Directors are not Responsible for even Gross Mistakes if Honest and Within the Scope of their Powers 5511 Directors are not Responsible for Loss from Building Saw-miU and Hotel where the Charter gave Power to Develop the Land, etc. . 5512 Bills by Stockholders to CoUect Dividends 5513 Form of BUI by Stockholders for a Dividend Declared 5514 Bill by a Stockholder or a Member against a Corporation to Restrain Hurtful Acts Ultra Vires 5515 Xxii CONTENTS. Section BiU by Stockholders Praying Court to Supervise an Approaching Election 5316 Form of BiU for Appointment of Master to Supervise Corporate Elec- tion in a Case of Illegal Voting 5517 Form of Bill for Appointment of Master to Supervise Corporate Elec- tion in Case of Fraud and Apprehended Violence 5518 When a Stockholder Cannot Sue 5519 Bills by Strangers to Restrain Acts Ultra Vires 5520 Form of Bill by Stranger to Restrain Illegal Acts of a Corporation. . . 5531 Form of Bill by a Stranger (Bondholder) against a Municipal Corpora- tion to Restrain Acts Ultra Vires and to Prejudice of Plaintiff. . . 5532 Foreclosure BiUs 5533 Form of Bill by Trustees for Foreclosure of Mortgage 5524 When Courts Decree Foreclosure 5525 Form of Bill by a Bondholder to Foreclose a Corporation Mortgage. . 5526 Bills to Restrain Perversion of Trust Funds — Misuser of Charities — Stealing of Churches 5527 Form of Bill by Trustees of a Church against Persons Retaining Possession of Church Property 5528 Form of Bill by Members of a Church to Restrain Alienation of Church Property 5529 Use of Corporate Name may be Enjoined 5530 Form of BiU in United States Court by Stockholder for a Receiver for a Corporation whose Capital has been Impaired by Neglect of its Officers 5531 OHAPTEE XII. BILLS TO PERPETUATE TESTIMONY. When Equity has Jurisdiction to Perpetuate Testimony 5533 Pennsylvania Statutes 5533 Where the State is a Party 5534 What the Bill to Perpetuate Testimony must State 5535 Who may File a BiU to Perpetuate Testimony 5536 A BiU to Perpetuate Testimony is not a BUI for Discovery and Cannot be so Used ggg™ Affidavit to Bill in Equity gggg CONTENTS. xxiii Section Where Defendant Voluntarily Answers Denying Plaintiff's Case 5539 Neglect to Proceed gg^Q Proceedings under the Bill gg^-^ Costs 554^ The Evidence Taken is Admissible though the Bill be Dismissed 5543 When Papers Belonging to Record Mislaid or Lost 5544 Consent not Sufficient to File Copies— Practice 5545 Form of BiU to Perpetuate Testimony — Lost Record 5546 Form of Bill to Perpetuate Testimony of a lost Venditioni Exponas, and the Sheriff's Return thereto 5547 Form of BUI for Perpetuation of Testimony to Show that Plaintiff's Name has been Forged 5543 Form of BiU for Perpetuatuig Testimony as to Location of Real Estate ; 5549 CHAPTEE XIII. DOWER. Definition 555O Bar of Dower in England by Act of Husband Alone 5551 Other Bars to Dower 5,553 Tlie Orphans' Court Remedy 5553 The Remedy in Equity 5554 No Action of Dower to Abate by Death 5555 Widow who Elects to Take Dower in Lieu of Taking xmder Her Hus- band's WiU 5556 An Alien is not Entitled to Dower ' 5557 Application of Equity Jurisdiction in Dower 5558 Extent of the Dowry — Pleadings — Defenses 5559 Assignment of Dower , 5560 Entry After Assignment 5561 Decree Making Assignment 5563 Form of Decree Assigning Dower 5563 Limitation to Action 5564 Sequestration in England 5565 Form of BUI for Dower 5566 Form of BUI by Executors of Dowress 5567 Form of BiU by Widow for Partition 5568 XXiv CONTENTS. CHAPTEE XIV. RECEIVERS. Section Definition— Powers, etc 5569 Preliminary Observations as to the Appointment of Receivers- Notice 55™ Power of the Court to Appoint 5371 When a Receiver will be Appointed 5572 Insolvent Proceedings 5573 Insolvent Insurance Companies 5574 Insolvent Mutual Insurance Companies 5575 Insolvent Banking Companies 5576 Contested Elections 5377 A Receiver may be Appointed in Cases when a Corporation has been Dissolved by Judgment of Ouster upon Proceedings by Quo War- ranto 5578 Where Assignee or Trustee Dismissed for Certain Causes 5579 When a Receiver will not be Appointed 5580 Ejectment Cases 5581 When Ejectment Pending 5583 Structure of Bill for Receiver 5583 Form of Bill for a Receiver of an Insolvent Raih-oad Corporation .... 5584 Other Forms of Bills for Receivers 5585 Practice 5586 Form of Decree Appointing Receiver, etc 5587 Form of Order Appointing Receivers of an Insolvent Railroad Cor- poration 5588 Form of Bond of Receiver 5589 Duties of Receiver After Appointment 5590 Form of Petition by Receiver for the Appointment of Appraisers, and Decree 5591 Form of Inventory and Appraisement — Oath 5593 Proceedings Subsequent to Interlocutory Motion 5593 When Appointed in One State, Receivei-s will be Recognized in An- other State and in the United States Courts 5594 General Authority of and Restrictions upon Receivers 5595 Their Powers are only Co-extensive with th« Jurisdiction of the Court which Appoints them 55QQ CONTENTS. XXV Section Federal Receiver to Operate Property according to Law of State where Located 5597 Liability of Receiver 5598 General Principles Touching Liability of Receivers 5599 Enforcement of a Decree Against a Receiver 5600 Good Faith Always Required 5601 Receivers' Certificates 5603 The Surety of any Receiver may Require the Filing of Statements Ex- hibiting the Manner of the Investment of the Trust Funds — If In- vestment Improper or Insecure, Receiver may be Removed 5603 Compensation of Receivers 5604 To Obtain Order of Sale of Realty 5605 If the Order of Sale be Irregular 5606 Confirmation of Sale by Court 5607 Sales of Personalty 5608 Receivers Cannot Purchase 5609 Suits By and Against Receivers 5610 How Suits Brought by Receiver 5611 Suits Against Receivers — Previous Leave Necessary where Receivers Appointed by State Court 5613 Federal Receivers may be Sued without Previous Leave of Court. . . . 5613 How Judgment in State Court Enforced Against Federal Receivers. . 5614 Service upon Receivers — Two Receivers — Statute of Limitations — Writs of Assistance 5615 CHAPTER XY INJUNCTIONS. Jurisdiction of the Supreme Court 5616 Jurisdiction of the Common Pleas 5617 In Quo Warranto Proceedings— Execution by Injunction 5618 Injunctions in Cases of Violation of Building Laws 5619 Injunction in Mining Cases 5620 Invasion of Rights by Corporations may be Restrained by Injunction. 5621 Grade Crossings— Injunctions 5623 Injunctions Against Sale or Incumbrance of Real Estate to be In- dexed 5623 Cautionary Orders Forbidden 5634 Definition of Injunction 5635 XXVI CONTEXTS. Bection Different Kinds of Injunctions 563f> General Directions as to when Special Injunctions may Issue 5627 General Principles Governing Applications for Preliminary or Special Injunctions 5638 When Special Injunctions Cannot Issue 5639 Structure of BiU 5630 Before Filing the BiU it Must be Printed, except where Time does not Permit this to be Done 5631 Directions as to Injunction — AflEidavit 5632 Form of AflEidavit for Injunction and for Appointment of a Receiver in a Partnership Case 5633 Kinds of Preliminary Injunctions 5684 Ex Parte Injunctions 5635 Service of Injunction — Eeturn 5636 Form of Special Injimction 5637 Subsequent Proceedings after Ex Parte Injunction Granted 5638 Motion to Dissolve Injunction 5639 Practice on Motion to Dissolve 5640 Special or Preliminary Injunctions — Practice 5641 Injunction Bond 5642 Form of Injunction Bond 5643 When Preliminary Injunction Granted, but Final Injunction Refused, the Remedy for Damages is on the Bond 5644 When Injunctions will be Granted 5645 In Proceedings at Law 5646 When Proceedings at Law will not be Enjoined 5647 When Proceedings at Law will be Enjoined 5648 Jurisdiction to Prevent Infringements of Patents 5649 When Granted in Patent Cases 5630 Former Decisions Sustaining the Patent 5651 Decision of Patent Office 5652 General Cases where Injunctions were Allowed in Patent Cases 5653 When Preliminary Injunction may be Refused in Patent Cases 5654 A Fair Dovibt as to the Invention Defeats the Motion. 5655 Denial of Plaintiflf's Right — Irreparable Injury 5656, Where the Defendant would be Irrepai-ably Injured the Injunction will be Refused 5fiW Form of Bill for Injunction and Account, in Patent Case! 5658 Copyrights— Jurisdiction— Essentials of Bills, etc 565ft CONTENTS. XXvii Section Form of Bill to Enjoin the Infringement of a Copyright 5660 Trade-marks— Injunction to Restrain Imitations of Goods 5661 Where the Imitation may Deceive, the Injunction may Issue 5662 A Party Cannot Take a Rival's Advertisement and Note under it that his Preparation is Better 5663 Form of BUI to Restrain the Use of a Trade-mark 5664 Form of BOl to Enjoin the Imitation of Trade-marks 5665 Restraint of Trade ■ 5666 Trade Secrets — Professional Communications 5667 Form of Bill to Restrain Divulging Trade Secret 5668 Injunctions to Restrain Breaches of Negative Covenants 5669 An Injunction will not be Granted to Restrain a Threatened Breach by a Tenant of a Stipulation in a Farming Agreement 5670 General Jurisdiction in Waste — Trespass — Nuisance — Purprestures. . . 5671 Waste — When Injunction Issues 5673 Trespass — When Injunction Issues 5673 Form of Bill to Restrain Closing a Theatre 5674 Form of BUI to Enjoin a Corporation from Unlawfully Taking Posses- sion of Plaintiff's Property 5675 Nuisance — ^When Injunction will Issue 5676 Injimctions in Cases of Storage of Gunpowder 5677 Form of BiU to Restrain a Nuisance 5678 Form of Bill to Abate and Remove a Nuisance 5679 Form of Bill to Enjoin Breach of Restrictions in a Deed Relating to Light and Air 5680 Form of BiU to Enjoin Construction of RaUroad to the Injury of Plaintiff's Property 5681 Injunctions in Cases of Boycotting — Strikes — Unlawful Combinations. 5683 General Cases as to the Allowance of Injunctions 5683 Equity will Enjoin the Operation and Execution of an Unconstitu- tional Law or Ordinance 56S4 Enforcing Ordinance 5685 Building Restrictions 5686 Covenants 5687 Rights of Way 5688 Easements 5689 Subterranean Water-course 5690 Party Wall 5691 Lateral Support ■ • 5603 xxviii coNTEincs. Section Injunction pending Ejectment ^°^^ Executory Contracts. ""^'* Fixtures ^^^^ Removal of the Dead ; 5696 Gas Wells 5697 Partners 5698 JIunicipal Bodies — Public Officers 5699 Taxes 5700 Corporations 5701 Collateral — Trust Property — ^Fraudulent Purchase by Trustee — Over- paid Distributee 5703 Unlawful Suspension 5703 Form of Bill to Compel Delivery o^Collateral and Enjoin its Transfer or Assignment 5704 Form of Bill for an Injunction to Restrain Destruction of Title Papers, and to Compel Re-deUvery thereof 5705 Form of Bill to Enjoin Municipality from Illegally Retaining Moneys, Securities, Books, Title Papers, Records, etc.. Vested by Act of Assembly in a Special Board of Directors of the Municipality. . . . 5706 Oeneral Cases where an Injunction will not Issue 5707 Proceedings Subsequent to Granting Preliminary Injunction 5708 Form of Final Injunction 5709 Death does not Abate Injunction 5710 Contempt in Injunction Cases 5711 Practice on Attachment , 5713 Appeal from Interlocutory Decree Granting a Special Injunction. . . . 5713 Appeal from Interlocutory Decree Refusing a Special Injunction .... 5714 Hearing on Appeal 5715 Practice on Appeal — Supersedeas 5716 Upon Appeals in Equity Cases, Appellant to File, with Notice of Ap- peal, a Brief Statement of Errors — When Leave may be Granted to Proceed with Part of Decree, notwithstanding Appeal 5717 CHAPTEE XVI. SPECIFIC PERFORMANCE. Jurisdiction gr^jg The Case of Penn v. Lord Baltimore respecting Boundaries of Pennsyl- vania and Maryland gn-ig CONTEiVTS. Xxix Section General Principles Governing AppKcations for Specific Perform- ^"°® 5720 As to the Fairness of the Contract 5721 When Relief will be Granted 5723 When the BiU will not Lie 5723 l^emedy 5^2^ Limitation of Action 5725 Wliat BiU must Contain 5726 Form of BiU by Yendee for Specific Performance of Contract in Writing 5^3^ Form of BiU by Vendee for Specific Performance of Parol Contract. . 5728 What the Decree should Contain 5729 Execution and Enforcement of Decree for Specific Performance 5730 CHAPTEE XA^II. TRUSTS AND TRUSTEES. Jurisdiction 573^ General Provisions as to Trusts 5732 Jurisdiction — When the Court will Act 5733 Who can Come in as Cestuis que Trustent — Who can Sue Trustee 5734 How the Jurisdiction is to be Exercised — Following the Trust Property 5735 When One may be Declared a Trustee 5733 A Constructive Trust may be Rebutted by Parol Evidence 5737 When Fraudulent Dealing with Executor Makes One a Trustee 5738 Selling without Title 5739 Attorneys 574O Tenants in Common 574I Husband 5742 In Loco Parentis or Guardian 5743 Creditors 5744 Trustee Cannot Profit from his Cestuis que Trustent — As to Consent.. 5745 When Cestuis que Trustent can Sue the Trustee without Administer- ing to Estate of Donor 5746 Revocable and Irrevocable Trusts 5747 Appointing a Receiver Against the Legal Title in Cases of Trust 5748 Laches — Time as a Bar to Establishing Trust 5749 JCXX CONTENTS. Section As to Fraud and Mistake ^^^^ Interest on Surcharges ^"^^^ Compound Interest Not Favored 5753 Trustee Protected wiio Distributes under Decree 5753 What the BiU should State and Contain 5754. Persons Beneficially Interested in Real Estate Vested in llj-ustees with Power to Sell, etc. , Need Not be Made Parties in Suits Concerning such Real Estate 5755 When Heirs-at-Law Need Not be Made Parties in Suits to Execute Trusts of Will 5756 When Bondliolders Need Not be Made Parties. . .' 5757 Framing the Bill Against Trustee 5758 Form of Bill Against Executrix of Trustee to Enforce Parol Trust for Re-assignment 5759 Bill to Declare Trusts 5760 Practice as to Accounts of Trustees 5761 Eorm of Petition for Citation for Account and Decree 5762 Torra of Citation 5763 As to Filing Answer or Account — Order to File Account 5764 Form of Decree Ordering Account to be Filed 5765 When Account Confirmed without Reference — When Referred to an Auditor 5766 IForm of Advertisement of Filing Account 5767 CHAPTEE XVIII. PARTITION. 'General Marks of Difiference between Suits in Partition at Law and ia Equity 5768 Advantage of the Remedy in Equity 5769 Equity Jurisdiction 5779 When Partition Lies in Equity 577]^ Jurisdiction in Cases of Disputed Boundaries 5773 Jurisdiction where the Lands Lie in Different Counties 5773 Preliminaries to Filing BUI in Partition 5774 As to the Title K775 The Parties g77g General Directions as to Framing BUI in Partition 5777 CONTENTS. XXXI Section Tonn of Bill in Partition 5778 Form of Bill in Partition in Cases of Testacy 5779 Filing Bill— Amendment 5780 Service of Bill in Partition 5781 Form of Petition Alleging Residence of Certain Defendants Beyond the Jurisdiction and Order aa to Service 5782 "Wliere Defendant's Residence is Unknown 5783 Form of Petition for Order of Service by Publication — Residence Un- known, and Order Thereon 5784 Where Minors are Parties in Interest and Must be Served 5785 Guardian Ad Litem 5786 Form of Petition for Appointment of a Guardian Ad Litem and Decree 5787 Proceedings Subsequent to Filing Bill and Service 5788 Form of Decree Pro Confesso 5789 Denial of Title of Plaintiff 5790 Form of Answer by a Guardian where Plaintiff's Right is Undisputed. 57C1 Power to Decree Partition and Appoint a Master or a Master and Com- missioners 5798 Form of Interlocutory Decree Appointing Master in Partition 5793 When Master Appointed, he Cannot be Summarily Dismissed 5794 Notice to Master of Appointment 5795 Notice to Parties of Meeting before Master 5796 Proceedings before Master 5797 "When Commissioners Appointed. 5798 Erde to Accept or Refuse 5799 Widow's Share. 5800 Owelty 5801 Torm of Master's Interlocutory Report 5803 Another Form of Master's Interlocutory Report , 5803 Form of Rule on all Parties to Accept or Refuse 5804 Notice of Filing Report — Exceptions 5805 Confirming Report — Setting it Aside 5806 Decree Confirming Partition — Decree Confirming Report 5807 Appeal from Interlocutory Decree 5808 As to Deeds where Purparts Allowed - 5609 Power to Decree Sale — Notice— Duties of Master 5810 Form of Order of Sale 5811 Another Form of Order of Sale 5813 XXXll CONTENTS. Section Eeturn to Order of Sale — Confirmation 5813 Form of Return to Order of Sale 5814 Form of Acceptance of Service of Notice that Return to Order of Sale wiU be Filed, and Agreeing that Sale shall be Confirmed. . . 5815 Another Form of Master's Report of Sale 5816 Form of Decree Confirming Sale 5817 Setting Aside Sales 5818 Form of Bond of Master 5819 Form of Master's Deed in Partition 5820 Master's Duties Subsequent to Sale— Searches— Notice of Filing Final Report 5821 Costs 5823 Counsel Fees 5823 Form of Plaintiffs Bill of Costs under Equity Fee Bill 5824 Form of Master's Final Report 5825 Exceptions to Report 5836 Form of Exceptions to Repoi-t 5827 T'orm of Agreement of Counsel that Master's Report shall be Abso- lutely Confirmed and Decreed 5828 Alias Order of Sale 5829 Films Exemnlification of Record 5830 CHAPTEE XIX. MARSHALLING ASSETS. Equity Jurisdiction 5831 General Principles as to Marshalling Assets 5838 As to Decedents' Estates 5833 Ground-rents, Mortgages and Common Incumbrances 5834 When Plaintiff in Foreign Attachment may be Subrogated to the Rights of Mortgagees or Judgment-creditors 5835 In what Cases Defendants Jointly Liable may be Compelled to Con- tribute 5836 Two Funds 5837 Over-payment — Insolvency of Claimant — Costs on Fund — Laches 5838 Suggestions as to Form of Bill for Marshalling Assets 5839 CONTENTS. XXXIU CHAPTEE XX. BILLS OF PEACE. Section Definition — Principles 5840 What is Necessary to Maintain a Bill of Peace 5841 Tax Cases — Injunction against Collection, etc 5843 Unconstitutional Tax 5843 night of Taxpayers to Restrain Acts which will Increase the Burden of Taxation ; 5844 Protection of Eeal Estate from Levy where Personalty Sufficient. . . . 5845 Effect of Paying or Tendering Tax 5846 What the Bill to Restrain Collection of Taxes must Show 5847 When a Bill of Peace Cannot be FUed 5848 Form of Bill of Peace where the Plaintiff has Maintained his Right at Law, but is in Peril of a Fresh Attack 5849' CHAPTER XXI. BILLS QUIA TIMET. UseoftheBiU 5850 Nature of the Remedy 5851 General Principles Governing Bill 5852 Future Rights will not be Protected by a BUI Quia Timet 5853 Definitions as to Different Kinds of Injunctions 5854 When the Bill will Lie 5855 When the Bill will Not Lie — Contingent Interests 5856 Answer to Bill Quia Timet — Hearing 5857 Form of Bill Quia Timet 5858 Statutory Method of Quieting Titles— Practice 5859 CHAPTER XXII. INTERPLEADER. Jurisdiction 5860 Requisites to Confer Jurisdiction 5861 By Whom Bills of Interpleader may be FUed 5863 3 XXxiv CONTENTS. Section Landlord and Tenant Cases 5863 General Outline of the Bill of Interpleader 5864 Affidavit to Bill Required 5865 Injunction in Interpleader Cases 5866 Proceedings on the Bill of Interpleader 5867 Costs in Interpleader Cases 5868 Form of Bill for Interpleader 5869 Form of Piayer in Bill for Interpleader 5870 Form of Affidavit to Bill 5871 CHAPTEE XXIII. 31L1& OF REVIEW— BILLS IN NATURE OF A BILL OF REVIEW —BILL IMPEACHING A DECREE FOR FRAUD. When Bill of Review is Brought 5873 Matters Treated of in Orphans' Court Practice 5873 When the Bill for Review will be Entertained 5874 When a Review will Not be Allowed 5875 Practice as to Bills of Review 5876 What the Bill Must Contain 5877 Time within which Bill Must be FUed 5878 Form of Bill of Review 5879 Bill in the Nature of a Bill in Review 5880 Bill Impeaching a Decree for Fraud 5881 CHAPTEE XXIV. LUNATICS. Jurisdiction — Practice — Statutes - 5882 CHAPTEE XXV. BILL TO TAKE TESTIMONY DE BENE ESSE. tPiactlee 5883 CONTENTS. XXXV CHAPTER XXVI. OBTAINING EVIDENCE FROM PLACES NOT WITHIN THE STATE. Section Jurisdiction— Practice— Statutory Provisions— Equity Rules 5884 CHAPTER XXVII. BILL FOR A NEW TRIAL. Jurisdiction — Bill not Favored 5885 CHAPTER XXVIII. CROSS-BILLS. Definition 5886 The Pennsylvania Rules in Equity 5887 Cross-bills for Discovery only Not Allowed 5888 When a New Party Cannot be Added by Cross-biU 5889 Who may File a Cross-bill. 5890 The Proper Time for Filing a Cross-bill 5891 In what Court the Cross-bill Must be Filed 5892 What may be Set up by a Cross-bUl 5893 Contents of Cross-biU 5894 Proceedings on the Cross-bill 5895 Form of Cross-bill 5896 CHAPTER XXIX. AMENDMENTS (OF BILLS, OF ANSWERS, OF DEMURRERS, OF MASTERS' REPORTS AND DECREES). General Observations— Kinds of Amendments 5897 Statutes 5898 The Pennsylvania Statute Allowing Amendments in Equity 5899 The Equity Rules of the U. S. Courts— Amendment of Bill Before Answer or Demurrer 5900 Amendment of Bill After Answer 5901 XXXvi CONTENTS. Section The Pennsylvania Rules in Equity 5903 The Pennsylvania Rules Require Amendments to be Printed 5903 "When Amendments to the Bill will be Allowed 5904 When Amendments to the Bill will not be Allowed 5905 When it is Too Late to Amend the Bill 5906 Discretion of Court 5907 When Affidavit Required 5908 Form of Amendment to Bill 5909 Amendment of Answer 5910 When Amendment to Answer wiU Not be Allowed 5911 As to Effect of an Amendment 5912 Amendment of Demurrer 5913 Amendment of Master's Report and of Decree 5914 Form of Amendment to Answer 5915 Form of Amendment to Master's Report or to Decree 5916 CHAPTER XXX. BILLS OF REVIVOR, SUPPLEMENTAL BILLS, AND HEREIN OF SUPPLEMENTAL BILLS IN THE NATURE OF BILLS OF RE- VIVOR, OF ORIGINAL BILLS IN THE NATURE OF SUPPLE- MENTAL BILLS AND ORIGINAL BILLS IN THE NATURE OF A BILL OF REVIVOR. Description of Bills — Equity Rules 5917 Distinction between the Bill of Revivor and the Supplemental Bill. . . 5918 The English Seire Facian 5919 The Pennsylvania Statute Authorizing Writs of Scire Facias in Case of Death of Plaintiff or Defendant 5920 The United States Statute 5921 When a Bill of Revivor will Lie 5922 When the BUI of Revivor will Not Lie 5923 The Distinction between Bills of Revivor and Bills in the Nature of BiUs of Revivor 5924 The Distinction between Supplemental Bills and Original Bills in the Nature of Supplemental BiUs 5925 Cases in which a Supplemental Bill can be Filed 5926 What the Supplemental Bill Should Contain 5927' CONTENTS. XXX vii Section. What an Original Bill in the Nature of a Supplemental Bill Should Contain 5928 Original Bill in the Nature of a BUI of Revivor 5939 "Who Can Revive 5930 Against Whom the Bill of Revivor May he Filed 5931 Answer to Bill of Revivor 5932 Suggestions for Drafting Bill of Revivor 5938 Form of Suggestion of Death of Plaintifif by the Attorney of the PlaintiflE 5934 Form of Statement by Plaintiff of Defendant's Death 5935 Form of Amendment to Bill under Pennsylvania Rule where the Cir- cumstances Require a Bill of Revivor or a Supplemental Bill or BUI in the Nature of Either or Both 5936 Form of Bill of Revivor 5937 Form of Supplemental Bill After Decree , 5938 CHAPTER XXXI. DEMURRERS. Definition 5939 General Directions 5940 Different Kinds of Demurrers — Speaking Demurrer 5941 Time within which Demurrer Must be FUed 5943 Demurrers Must be Printed — Service of Copies — Poverty 5948 When a Demurrer wUl Lie 5944 Demurrers Sustained 5945 Bad Demurrers 5946 Where the BUI is Amended After Answer FUed 5947 Directions as to Demurrers Given in the Rules of the United States and the State Courts— Demurring to Part of BiU 5948 Demurring and Answering at the Same Time 5949 Certificate of Counsel and Affidavit 5950 Setting Down the Demurrer 5951 If Demurrer Too Narrow or Touched by Answer 5952 If Demurrer AUowed 5953 If Demurrer Overruled 5954 Notice Required in the Circuit Court of United States for Eastern District of Pennsylvania as to Demurrers, etc 5955 XXXviii CONTENTS. As to Interrogatories Section . 5956 . 5957 Effect of a Demurrer 5959 Form of Demurrer ^^^^ CHAPTEK XXXII. WANT OF PARTIES. How Defect Should be Taken Advantage of 5960 How Advantage is to be Taken of an Objection that there is a Want of Parties 5961 CHAPTER XXXIII. ANSWERS. Definition 5963 Parts of an Answer 5963 Supplemental Answer 5964 Time for Filing Answer 5965 Citations of U. S. and of State Rules 5966 Structure of Answer 5967 Requirements of Answer 5968 Who May Intervene 5969 EflEect of Answer 5970 Answer may Insist on any Matter as if it had been Pleaded 5971 When Oath to Answer Waived 5972 Amendments to Answers 5973 Interrogatories and Answers to Interrogatories 5974 Answer to Amendments 5975 If No Exceptions be Filed in the State Court within Twenty Days. . . 5976 Form of Exception to Answers as Insufficient 5977 Practice where Exceptions are Filed 5978 Exceptions for Scandal and Impertinence 5979 Form of Exceptions to Answer for Scandal and Impertinence 5980 Answer Must be Printed 5981 Copy of Answer Should be Served 5983 Argument on Bill and Answer 5983 CONTENTS. XXxix Section Effect of Replication 5984 Form of Answer (No. 1) — General Denial, etc 5985 Form of Answer (No. 2) — Insisting on a Matter of Defense as if it had been Pleaded 5986 CHAPTEE XXXIV. REPLICATIONS. Definition 598r In what Cases to be Filed — After Answer — When Plaintiff should Reply and when Except 5988 After Plea when Plaintiff should Reply and when he should Order the Plea for Argument as Insufficient 5989 After Disclaimer 5990 Time for Filing Replication 5991 If Replication not FUed as Required 5993 Amendment — Withdrawing Replications 5993 Effect of FUing Replication 5994 F ilin g Replication Nunc Pro Tunc 5995 Form of Replication 5996 CHAPTER XXXV. PRODUCTION OF DOCUMENTS. If in Hands of Third Party 5997 When the Document is in Possession of the Adverse Party — Notice to Produce 5998 The Statute of February 37th, 1798, Relating to the Production of Docu- ments at the Trial 5999 In Account Render — Assignees and Trustees 6000 In Decrees Referring Causes to a Master Production is Always Ordered where Desired 6001 Powers of the Master 6003 When the Production of Documents will be Required 6003 Shall the Defense Produce 6004 When Production of Documents will Not be Required 6005 General Practice as to Production 6006 xl CONTENTS. Section When Motion may be Made — Notice 6007 As to Sealing Parts of Books Produced 6008 Injunction against Communicating Information 6009 CHAPTER XXXVI. EXAMINEES. When and How Examiners are Appointed 6010 Form of Motion for Appointment of an Examiner 6011 Powers and Duties of Examiners 6012 Scandalous Testimony — Enlarging Powers of an Examiner 6013 Subpoena to Attend Before an Examiner 6014 If a Witness Refuse to Testify 6015 Proceedings Before the Examiner 6016 Examination of a Party 6017 Examiner's Interlocutory Report and Certificate 6018 Closing Testimony 6019 Filing Report — Exceptions to Depositions— Recommitting Report. . . . 6030 Printing Testimony 6021 Examiner's Fees 6023 Form of Examiner's Report 6023 CHAPTEE XXXVII. MASTERS. When Appointed 6034 Appointment and Removal of Masters 6025 Master Appointed on Motion — Form of Motion 6036 Powers and Duties of Masters 6027 Master's Interlocutory Report — Certificate 6038 Form of Certificate and Interlocutory Report 6029 Master's Report — What it Must Contain 6030 What the Master should Repoi-t 6031 Form of Master's Report 6032 Rule on Master to File Report 6033 Effect of a Master's Report — Setting Aside Report GOS-t CONTENTS. xli Section Awarding Issues to be Tried by a Jury 6035 Exceptions to a Master's Report 6036 Form of Exceptions 6037 Master's Fees 6038 Master's Sales 6039 CHAPTER XXXVIII. PEOSECUTION OF A CASE IN EQUITY. Preparing BiU 6040 State Practice as to Printing and Serving 6041 Service of BUI 6042 Non-resident Defendants 6043 Wlien Publication is Ordered 6044 Service on Husband and Wife 6045 If Defendant do not Appear 6046 Form of Taking Decree Pro Confesso for Want of an Appearance and Answer 6047 If an Answer be Essential 6048 Form of Application for an Attachment in Case of Default in not Appearing 6049 If an Appearance be Entered and No Answer be FUed 6050 Demurrers 6051 Amendments of the Bill 6052 After Answer Filed 6058 As to Exceptions for Scandal or Impertinence 6054 Technical Objections are Waived by Omission to Except 6055 Want of Parties 6056 Ordering Case on BiU and Answer 6057 Eeplication 6058 Hearing on the Equity Trial List 6059 Feigned Issues 6060 The Practice of the United States Courts 6061 Eight to Intervene 6062 Form of Petition to Intervene 6068 Eoreign Attachment in Equity Cases 6064 xlii CONTENTS. CHAPTER DEFENSES. Section Setting Aside Service— Motion to Quash 6065- Appearance 6066 Order to Enter Appearance 6067 Security for Costs 6068 Daf act for Want of Parties 6069 Exceptions to Bill for Scandal or Impertinence 6070 Cross-bill 6071 Demurrers 6073 Pleas 607a Answers 6074 Replications 6075 Production of Documents 607& Amendment to Answer 6077 Supplemental Answer 6078. CHAPTEE XL. DECREES. Definition 6079 Decrees Pro Confesso 6080 Decrees for Account of Decedent's Personal Estate 6081 Decree on Foreclosure of Mortgage for Balance Due Plaintiff 6083 Form of Decrees as Regulated by Rules of Court 6083 Correction of Clerical Errors 6084 Conformity of the Decree to the Prayer 6085 What Decree may be Entered under the Prayer for General Relief. . 6086 Decrees Pro Forma 6087 Irregular Decrees 6088 If Defendant Proceed in Disregard of the Bill or of Notice 6089 Who are Bound by Decrees 6090 Collusion 6091 Death of a Co-defendant _ 6093 Damages 6093 Dismissal Without Decree 6094 CONTENTS. xliiL Section Conclusiveness of Decrees 6095 Decree a Lien— Revived by Scire Facias 6096> CHAPTEE XLI. REHEAEING. Definition, 6097 Eehearings in English Practice 609S- Eehearings in American Practice 6099 What are Proper Subjects for a Rehearing 6100 Time 6101 As to Drafting a Petition for Rehearmg 6103^ Discretion as to Granting a Rehearing 610$- When the Court will Stay Proceedings Pending a Rehearing 6104 Proceedings on the Motion for a Rehearing 6105 When Appeal Lies 6106- Form of Petition for a Rehearing 6107 English Form of Petition for a Rehearing 6108. CHAPTER XLII. COSTS. Rules as to Costs 6109- Discretion as to Costs 6110 When Successful Party Entitled to Costs 6111 Discouraging Unnecessary Litigation 6113 How Far a Tender Affects Costs 6113 When Costs will Not be Allowed 6114 Certain Defendants May be Ordered to Pay Costs and Other Defend- ants may be Discharged .' 6115 A General Decree for Costs Carries all Costs 6116 As to Counsel Fees 6117 Costs of Obtaining Security 6118 Security for Costs 6119 Execution for Costs 6130 Taxation of Costs 612L xliv CONTENTS. CHAPTER XLIII. EXECUTIONS. Section Definition 6133 Exemption 6123 Stay of Execution 6124 Writ of Fieri Facias 6125 Venditioni Exponas 6126 Attachment in Execution 6327 Attachment Execution against Corporations 6128 Testatum Writ of Execution 6129 Equity Rules as to Writ of Fieri Facias, Attachments, Sequestration and Writ of Assistance 6130 Persons Not Parties to the Suit 6131 Execution for Costs 6132 Attachment Against the Person 6133 Form of Afiidavit for Attachment 6134 Writ of Assistance 6135 Beceivers of Realty 6136 Eorm of Affidavit and Motion for Writ of Assistance 6137 Sequestration 6138 Effect of Sequestration upon Choses in Action 6189 Power of Sequestrators to Break Open Doors, and to Sell 6140 When a Conveyance Pendente Lite will be Effected 6141 From What Time the Sequestration Biuds 6143 What the Sequestration Binds 6143 When it Abates 6144 JExecutions Against Corporations 6145 CHAPTEE XLIV. APPEALS. Definition — Statutes 6146 Appeal in Cases of Account from the Interlocutory Decree Ordering an Account 6147 Summary of the Pennsylvania Statutes as to Appeals in Equity 6148 What is a Final Decree 6149 Form of Prmcipe on Appeal in Equity 6150 CONTENTS. Xlv" ' Section Aifidavit on Appeal 6151 Security on Appeal — Supersedeas 6152 Waiver of Appeal 6153 Time within which Appeal Must be entered 6154 The State Rules as to Appeals 6155 Certiorari Necessary 6156 Errors Must be Assigned 6157 Eecord Must be Returned 6158 If Appellee do not Appear 6159 If Appellant do not Bring up the Record 6160 Requirements of Paper Books — Service 6161 Statement of Errors filed in Lower Court 6162 Practice on Appeals in the State Courts 6163 Requirements of Assignments of Errors Filed in Supreme Court 6164 Form of Assignment of Errors in the Supreme Court 6165 Paper Books in the Supreme Court of the State — As to Printing Record 6166 Requisites of Paper Book of Appellant in the State Court 6167 Docket Entries in Paper Books 0168 How to State the History of the Case 6169 How to Present the Argument 6170 Paper Book of Appellee 6171 Citations — Certificate of Counsel 6172 As to the Rejection or Admission of Evidence 6173 As to Written Evidence — Letters — Receipts — Records 6174 In the Supreme Court of the State for Default, Appellant may be Non-suited and Appellee may Not be Heard 6175 Index and Printed Cover Required by Supreme Court Rules 6176 When an Appeal is a Supersedeas in the State Courts 6177 Appeals from Interlocutory Decrees in Injunction Causes 6178 When an Appeal will Not Lie 6179 Wliat can be Done Pending an Appeal 6180 Appeal as to Costs 6181 General Practice in the Supreme Court 6182 Hearing on an Appeal 6183 Remittitur from the Supreme Court of the State 6184 Practice as to Re-argument 6185 Form of Petition for Re-argument 6186 Superior Court — Appeals — Regulations as to its Constitution, Officers, xlvi CONTENTS. Section Jurisdiction, Powers, Practice and its Eelation to the Supreme . Court and Other Courts — Provisions for the Reports of its Decis- ions, the Compensation of the Judges and other Officers, and the Practice and Costs on Appeals from its Judgments 6187 Process— Decree— Return Days 6188 Reporting Decisions — Duties of State Reporter 6189 No Original Jurisdiction except in Habeas Corpus Proceedings — Final Appellate Jurisdiction .• 6190 When Appeal may be taken to the Supreme Court 6191 Tlules of Practice— No Short List— No Hour List 6193 No Certiorari Required 6193 When Appeal a Supersedeas — Affidavit — Bond 6194 •Quashing Appeal — Nov, Pros. — Affirming Decree — Reversing Decree — Amending or Modifying Decree — Returning Record — When Decree a Lien — Order of Restitution 6195 ■Costs on Appeal — Printing Paper Book 6196 Appeal Erroneously Taken to Supreme Court shall be Remitted — Ap- peal EiToneously Taken to Superior Court shall be Certified to Supreme Court — Procedure in Case of Appeal from Superior Court to Supreme Court 6197 ■Cases which may be Certified to Supreme Court for Final Decision. . . 6198 Compensation of Judges 6199 ■Organization of Court — Place of Meeting — Admission of Members to Practice 6200 Proceedings on Appeal Before and After July 1, 1895 6201 Proceedings to which this Act shall Not Apply 6203 Practice in the U. S. Courts sur Appeals 6203 Appellate Jui-isdiction of Circuit Courts of the United States Abol- ished 6204 When Appeals may be Taken from Circuit Court of the United States to United States Supreme Courts 6205 When Appeal shall be Taken to Circuit Courts of Appeals 6206 Appeals in Injunction Cases on Interlocutory and Final Order 6207 Proceedings when Cause Decided 6208 Time within which Appeal must be Taken 6209 Bonds on Appeal to Circuit Court of Appeals — Allowance of Appeal . . 6210 Rules of the Supreme Court of the United States 6211 AH Motions to be in Writing— Form— Argument— Notice Required- Motion to Dismiss — Motion to Affirm 6213 CONTENTS. xlvii Section Writs of Error — Appeals — Opinion of Court Below — Return and Eecord 6S13 Duty of Appellant and Appellee — Time within which Record shall be Filed and Cause Docketed — Appearance 6214 Clerk Prints Records and Furnishes Copies to Counsel — As to Print- ing Part of Record — Costs of Printing 6215 Motion for Diminution of Record — When Made 6216 As to Bringing Representatives of a Deceased Party on the Eecord After Decree and After Appeal 6217 Failure of Counsel to Appear or to File Brief 6218 As to Filing — Time of Filing — Cannot be Submitted After Hearing without Leave and on Notice 6219 Filing Brief with Clerk^Wliat Brief shall Contain — Assignment of Errors — Failure to Comply with Riile — Argument 6220 As to Time Given — As to Number of Counsel — Method of Argu- ment 6221 Costs on Dismissal — On Affirmance — On Reversal — Where United States a Party— To be Inserted in Mandate— Fee Bill 6222 How and When Cases Advanced — When Cases Passed, and Effect thereof 6223 Agreements of Counsel as to Dismissing Cases, Including Costs 6224 Bonds on Appeal 6225 Petition for Rehearing to be Presented at Term except by Leave — Must be Printed — What it shall State — Certificate — Not granted unless a Judge who Concurs Desires it 6226 Form of Printed Records and Briefs 6227 Citations— Return— Filing Record— Advancing Case— Printing Re- cord 6228 When Models, Diagrams and Exhibits to be Deposited with Marshal —When to be Taken Away 6229 Petition for Appeal— Requirements as to Assigning Error— Printing Eecord 6230 Allowance of Appeal — Security— Citation — Supersedeas 6231 Certificate— Bringing up Record from Circuit Court of Appeals 6282 Rules of the United States Circuit Court of Appeals for the Third Circuit 6333 Petition for Appeal— Requirements as to Assigning Error 6334 Bonds on Appeal in Injunction and Other Causes 6335 Opinions to be Transmitted with Record— Citations 6236 xlviii CONTENTS. Seetioii Docketing Cases — Duty of Appellant and Appellee — Time within which Record shall be Filed and Cause Docketed — Appearance. . 6337 Certiorari — Motion for Diminution of Eecord — When Made 6238 As to Bringing Representatives of a Deceased Party on the Record After Decree and After Appeal 6339 Agreement of Counsel therefor, Including Costs 634ft Motions to be in Writing — Form — Argument — Notice Required 6341 Failure of Counsel to Appeal— To File Brief 6343 Clerk Prints Record and Furnishes Copies to Counsel — Stipulations as to Part of Record being Printed — Cost of Printing 6243 Filing Brief with Clerk — What Brief shall Contain — Failure to Com- ply with Rule— Argument 6244 As to Time Given — As to Number of Counsel — Method of Argiunent. 6245 Form of Printed Records — Arguments and Briefs 6346 Petition for Rehearing to be Presented at Term, except by Leave — Must be Printed — What it shall State — Certificate — Not Granted unless a Judge who Concurs Desires it 6247 Costs on Dismissal — On Affirmance — On Reversal — ^Where United States a Party, to be Inserted in Mandate — Fees of Clerk to be Paid before Transci-ipt Transmitted 6248 When Models, Diagrams and Exhibits to be Deposited with Marshal — When to be Taken Away 6349 Appeals from Circuit Court to Circuit Court of Appeals 625(> Appeals from the Circuit Court to the United States Supreme Court. 6251 Form of Appeal from the Circuit Court to the Circuit Court of Ap- peals — Assignment of Errors and Allowance of Appeal 6253 Form of Appeal from the Circuit Court to the Supreme Court of the United States 6253 Form of Bond sur Appeal from the Circuit Court to the Circuit Court of Appeals or from Circuit Court to the United States Supreme Court 6354 Form of Citation to be Issued by Appellant in Appeals from the Cir- cuit Com-t to the Circuit Court of Appeals or to the United States Supreme Court 6355 TABLE OF CASES. (The Figures refer to the Sections.) A. Section Abbott V. Edgerton, 53 Ind., 196, Bills of Peace 5845 Abbott, Powell v., 9 W. N., 231, Injunctions 5703 Abrahams v. Hunt, 86 Pa. St., 49, Account 5393 Academy, Kuhn v., 15 W. N., 251, Injunctions 5701 Acheson v. Stevenson, 146 Pa. St., 228, Account 5394 Acheson v. Stevenson, 130 Pa. St., 683, Injunctions 5673 Acheson v. Stevenson, 146 Pa. St., 228, Injunctions 5687 Adair v. New River Co., 11 Ves., 429, Who Must be Joined 5353 Adams' Appeal, 113 Pa. St., 449, Demurrers 5944 Adams, Bailey Co. ■«. , 3 B. & A. , 96, Injunctions 5650 Adams v. Beach, 1 Phila. , 99, Interpleader 5663, 5862 Adams v. Fisher, 3 Mylne & Craig, 526, Production 6004 Adams v. Manning, 10 W. N., 448, Preparation 5384 Adams v. Patrick, 30 Vt., 516, Specific Performance 5721 Adams, Tash v., 10 Cushing, 252, Bills of Peace 5842 Adams, Taylor »., 2 S. & R., 534, Specific Performance 5721 Adams, Williams v., 8 Bissell, 452, Injunctions 5661 Adderley v. Dixon, 1 Sim. & L., 607, Specific Performance 5720 Adler, Brass Co. v., 2 Mona., 235, Costs 6110 Agar, Fairfax v., 17 Ves., 543, Partition 5798 Agnew V. Whitney, 33 Leg. Int., 139 ; 3 W. N., 474, Masters 6030 Aiken, Fmley v., 1 Grant, 84, 101, Specific Performance 5730, 5721 Aiman v. Stout, 42 Pa. St., 114, Accident 5431 Alberry, Valtenburg v., 10 Iowa, 264, Cross-bUls 5894, 5895 Albert v. Strange, 1 M. & G., 25, Injunctions 5667 Alden's Appeal, 93 Pa. St., 183, Account 5393 xlix 1 TABLE OF CASES. Section Alexander, GiUespie v., 3 Euss., 120, Trusts 5753 Alexander v. Pendleton, 8 Cranch, 462, Bills of Peace 5840 Alexander v. Wunderlich, 118 Pa. St., 610, Specific Performance. . . . 5723 Alexander's Appeal, 20 "W. N., 283, Specific Performance 5733 Alexander's Appeal, 20 W. N., 283, Costs 6110 Allan V. Allan, 15 Vesey, 130, Perpetuation 5535 Alleman's Appeal, 15 W. N., 213, Dower 5553 Allen V. Benners, 10 PhUa., 10, Injunctions 5646 Allen, Davis v., 1 Green Ch., 288, Preparation 5373 Allen V. Hammond, 11 Peters, 63, Accident 54S1 Allen V. Long, 30 P. L. J., 269, Cross-bills 5891 Allen, Palmer i;., 26 W. N., 514, Receivera 5614 -Allen, Stanton v., 5 Denio (N. Y.), 434, Injunctions 5683 Allen's Estate, 11 Phila., 48, Partition 5818 Allison's Appeal, 77 Pa. St., 331, Accident 5453 Allison's Appeal, 77 Pa. St. 221, Injunctions 5673 Allison's Appeal, 77 Pa. St., 321, Decrees 6086 Alter, In re, 7 Phila., 539, Accident 5437 Alter's Appeal, 67 Pa. St., 341, Accident 5437 Altoona, Drliew v., 131 Pa. St., 401, Account 5396 American Carpet Co. v. Beale, 5 B. & A., 529, Injunctions 5656 American Co. v. City, 4 Fisher, 189, Injunctions 5651 American Co., New York Sugar Co. v., 10 Fed. Rep., 835, Injunctions. 5650 American Grape Co., New York Grape Co. v., 10 Fed. Rep., 835, In- junctions 5656 American Middling Co. v. Christian, 4 Dill., 461, Injunctions 5653 American Pavement Co. v. City, 4 Fisher, 189, Injunctions 5650, 5651 American Shoetip Co. v. National Co., 11 Off. Gaz., 740, Injunctions.. 5650 Ames V. Trustees, 30 Beavan, 332, Execution . . 6133 Ander's Estate, 5 W. N., 78, Specific Performance 5728 Anderson v. Anderson, 25 Beav. , 190, Account 5399 Anderson v. Eltonhead, 36 W. N., 95, Corporations , 5516 Anderson, Hunter v., 153 Pa. St., 386, Dowor 5552 Anderson v. R. R. Co., 3 C. C. Rep., 402, Receivers 5613 Anderson, Reid v., 6 Lajic, 26, Masters 6034 Anderson, Stevenson v., 3 Ves. & B., 407, Interpleader 5S63 Anderson's Appeal, 103 Pa. St. , 358, Review 5875 Andrews v. Andrews, 13 Ind., 348, Specific Performance 5721 Andrews v. BeU, 56 Pa. St., 843, Specific Performance 5721 TABLE OF CASES. 11 Section Andrews v. Lee, 3 P. Wms., 99, Account 5397 Angell V. Angell, 1 Sim. & Stu., 83, Perpetuation 5533 Angell V. Angell, 1 Sim. & Stu., 83, Demmrers 5940 AngeU V. Hadden, 15 Ves., 244 ; 16 Ves., 303, Interpleader 5863 Angell V. Smith, Prec. Chan., 319, "Who may Sue 5331 Angel V. Smith, 9 Yes., 335, Execution 6133 Angerstein v. Clark, 3 Dickens, 738; 3 Swans., 147, Who Must be Joined 5360 Angove, Dungey v.. 3 Bro. C. C, 86, Interpleader. . . .5863, 5863, 5864, 5866 Anon. , 3 Equity Cases Abridged, 166, Who Must be Joined 5353 Anon., 1 Mylne & Craig, 78, Preparation 5381 Anon., 3 Atk., 694, Amendments 5913 Ansbacher, Leach v., 55 Pa. St., 85, Amendments 5910 Anshutz's Appeal, 34 Pa. St., 375, Who Must be Joined 5339 Anspach v. Thompson, 4 Am. Law Reg. (N. S.), 363, Examiners 6017 Appeals — See Proper Names. Applegate v. R. R. Co., 13 W. N., 406, Who may Sue 5303 Apple's Estate, 3 Phila., 33, Trusts 5733 Appletonu. Ruth, 15 W. N., 127, Whomay Sue 5304 Arden, Sterry v., 1 Johns. Chanc, 63, Cross-bills 5891 Arguello v. Edinger, 10 Cal., 156, Specific Performance 5731 Arkansas, Beers v., 30 Howard, 537, Who may be Sued 5335 Arkansas, Curran v. , 15 How. , 304, Who may be Sued 5336 Arkwright, Stansbuiy v,, 6 Sim . , 481 , Preparation 5388 Armstead v. Bozman, 1 Ired. Eq. (N. C), 117, Replications 5995 Armstrong v. Walker, 31 W. N., 66 ; 150 Pa. St., 585, Partition 5769 Armstrong v. Walker, 31 W. N., 66, Amendments 5904 Armstrong's Estate, 14 Phila., 320, Partition 5790 Arna's Appeal, 65 Pa. St., 72, Marshalling Assets 5836 Arnold, Dexter v., 5 Mason, 303, Review 5877, 5878 Arnot V. Biscoe, 1 Ves. , 95, Answers 5970 Art Club's Appeal, 33 W. N., 75, Injunctions 5676 Arthur v. Oakes et al, 63 Fed. Rep., 310, Injunctions 5683 Arthur v. School District, 35 W. N., 389, Injunctions 5700 Artman v. Giles, 155 Pa. St., 409, Preparation 5373 Artman v. Giles, 155 Pa. St., 410, Injunctions 5647 Ash, Biddle t;., 2 Ash., 311, Injunctions 5655 Ashv. Bowen, 30 Leg. Int., 326, Decrees 6091 Ashv. Guie, 97Pa. St. , 499, Who may Sue 5308 Hi TABLE OF CASES, Section Ashhurst v. Iron Co., 35 Pa. St., 30, Corporations 5525 Ashton, Heylinw., 7 Phila., 464, Dower 5559 Ashton, Jackson v., 8 Pet., 148, Demurrers 5944 Ashton, SterUngu, 34 Leg. Int., 362, Decrees 6090 Asslin, Hamilton v., 14 S. & R., 448, Accident 5442 Assn., Assn. v., 159 Pa. St., 308, Corporations 5530 Assn., Ball Club v., 8 C. C, 337, Injunctions 5669 Assn., Ball Club «., 8 C. C, 337, Specific Performance 5723 Assn., Barrett v., 7 Luz. L. R., 143, Injunctions 5639, 5702 Assn., Brady v., 14 W. N., 419, Accident 5423 Assn., Brady iJ., 14 W. N., 419, Demurrers 5945, 5947 Assn., Hickok v., 14 W. N., 12, Who may Sue 5303 Assn. V. Mayer, 45 Leg. Int., 346,. Who may be Sued 5334 Assn. V. Mayer, 2 Montg., 41, Production .6003, 6006 Assn., Morrison v., 1 Lack. Jur., 437, Receivers 5573 Assn. V. Shipbuilding Co., 19 W. N., 471, Receivers 5602 Assn. V. Server, 33 Leg. Int., 359, MarshaUing Assets 5837 Atchison, Watkins v., 10 Hare Appendix, xlvi.. Perpetuation 5542 AthUl, Coveny v., 1 Dick., 355, Perpetuation 5540 Athletic Assn., BaU Club v., 8 C. C, 337, Injunctions 5669, 5723 Atkinson, Edwards v., 14 Tex.. 373, Specific Performance 5721 Atkinson, Greenwood v., 5 Simon's Rep., 419, Who Must be Joined. . . 5360 Atkinson v. Henshaw, 2 Vesey & Beames, 85, Receivers 5580 Atkinson v. Manks, 1 Cowen (N. Y.), 691, 703, Interpleader. . 5864, 5865, 5866 Atlantic Co. v. Goodyear, 13 Off. Gaz., 45, Injunctions 5651 Atlantic Delaine Co. v. James, 4 Otto (U. S.), 207, Accident 5434 Atterbury, Sweetzer v., 100 Pa. St., 18, Appeals 6174 Atty.- Genl. v. Brown, 1 Swanston's Ch. Rep. , 265, Who Must be Joined. 5353 Atty.-Genl. v. Camarthen, Cooper's Ch. C, 30, Preparation 5384 Atty. -Genl., Casberd v., 6 Price, 411, Who may be Sued 5324 Atty.-Genl., Deare v., 1 Younge & C, 197, Demurrers 5940 Atty.-Genl. v. Goldsmiths' Co., 5 Sim., 670, Preparation 5384 Atty.-Genl. v. Jackson, 11 Ves. Jr., 369, Want of Parties 5961 Atty.-Genl., Lutwich v., 2 Atk., 223, Who may be Sued 5324 Atty.-Genl. v. Mayor, 4 Mylne & Craig, 17, Want of Parties 5960 Atty.-Genl. v. Merchants' Co., 1 Mylne & Keen, 189, Preparation 5384 Atty.-Genl. v. Merchants' Co., 1 Mylne & Keen, 189, Want of Parties.. 5960 Atty.-Genl v. Rwy. Co., 32 Leg, Int., 238, Injunctions 5676 Atty.-Genl., Reeve v., 3 Atk., 223, Who may be Sued 5324 TABLK OF CASES. llii Section Atty.-Genl. v. The Burgesses of East Retford, 2Mylne & Keen Chano. Rep., 35, Who may be Sued 5328 Atty.-Genl. v. Vivian, 1 Russ. , 336, Who may Sue 5299 Atvvood V. , 1 Russ., 355, Amendments 5897 Atwood. Small i;., 1 Younge's Rep., 407, Who Must be Joined 5346 Auble, KeUer v., 58 Pa. St., 410, Trusts 5741 Audenried v. R. R. Co., 68 Pa. St., 370, Injunctions 5629 Audenried v. Walker, 33 Leg. Int., 82, Answers 5970 Audenried's Appeal, 89 Pa. St. , 114, Answers 5970 Auer, Wallace v., 10 Phila. , 356, Injunctions 5676 Aull V. Bonnell, 11 W. N., 376 ; 2 Penny., 334, Dower 5553 Aultman, Fawcett v., 29 Pitts. L. J., 331, Preparation 5373 Aultman, Fawcett ■;;., 29 Pitts L. J., 331, Amendments 5904 Austin, Sieman v., 33 Barb., 9, Quia Timet 5855 Austin, Society v., 46 Cal., 415, Bills of Peace 5842 Avery, Scott v., 5 House of Lords Cases, 811, Account 5396 Aylesworth, SackvOle v. , 1 Vern. ,105, Perpetuation 5536 Ayres, In re, 123 U. S., 443, Who may be Sued 5836 Ayres, Hutchinson v., 117 111., 558, Want of Parties 5961 Babbitt v. Savoy, 3 Gushing, 530, Bills of Peace 5842 Bach, Schandein v., 11 W. N., 202, Injunctions 5677 Bachman v. Einhorn, 5 W. N., 250, Account 5402 Bachman v. Gross, 150 Pa. St., 516, Appeals 6184 Backus' Appeal, 58 Pa. St., 186, Specific Performance 5721 Backus' Appeal, 58 Pa. St., 192, Masters 6025 Bacon, Sellers v., 4 Phila., 52, Answers 5978 Badeau v. Tyler, 1 Sand. (N. Y.), 270, Interpleader 5863 Badger v. Badger, 2 Wallace (U. S. ), 87, Preparation 5388 Badgett, Worthen v. , 33 Ark. , 496, Bills of Peace 5846 Bagby v. R. R. Co., 86 Pa. St., 391, Receivers 5594 Bagg's Appeal, 43 Pa. St., 513, Review 5875 Bailee, Church v. , 29 P. L. J. (N. S.), 30, Masters 6039 Bailey, Brown v., 159 Pa. St., 131, Specific Performance 5731 Bailey, Butterworth v., 15 Ves., 358, Amendments 5904 Bailey v. Coal Co. , 139 Pa. St. ,213, Want of Parties 5961 liv TABLE OF CASES. Section Bailey v. E. R. Co., 139 Pa. St., 213, Who may Sue 5315- Bailey v. Westcott, 6 Phila., 535, Masters 6035 Bailey Co., v. Adams, 8 B. & A., 96 InJTinctions 5650 Bailey's Appeal, 96 Pa. St., 353, Trusts 5739 Bains v. Goldey, 35 Pa. St., 51, Answers 5968 Baird, CoUaday v. , 4 Phila. ,139, Injunctions 5663 Baird, Pettit v., 30 Leg. Int., 308, Who Must be Joined 5360 Baird, Pettit v., 10 Phila., 57, Preparation 5378 Baker v. Biddle, 1 Baldwin, 394, Discovery 5475 Baker?;. Johnson, 3 C. C, 414, Who may Sue 5303 Baker v. Leibert, 28 W. N., 466, Dower 5552 Baker v. Rand, 13 Barb. (N. Y.), 152, Decrees 6095 Baker, Rockafellow v., 41 Pa. St., 319, Accident 5431 Baker v. Slobig, 5 C. C, 383, Costs 6131 Baker, Whitelocke©., 13 Ves., 511, Who may Sue 5317 Ball V. OUver, 3 Vesey & Beames, 96, Receivers 5580 Ball Club V. Athletic Assn., 8 C. C, 337, Injunctions 5669 BaU Club V. Athletic Assn., 8 C. C, 337, Specific Performance 5728 Ball Club V. Bennett, 30 P. L. J. (N. S.), 153, Injunctions 5669 Ball Club V. Hallman, 8 C. C, 58, Injunctions 5669 Ball Club V. Hallman, 8 0. C, 57, Specific Performance 5733 Ball Club V. Pickett, 47 Leg. Int., 213, Injunctions 5669 Ball Club V. Pickett, 47 Leg. Int., 312, Specific Performance 5723 Ball's Appeal, 34 Pa. St., 286, Appeals 6164 Ballard, Herly v., 4 Bro. Ch., 468, Trusts 5749 Ballon V. March, 133 Pa. St., 64, Specific Performance 5730 Bally V. Williams, 1 McClelland & Younge, 334, Preparation 5382 Baltimore, Lord, Penn v., 1 Ves. Jr., 444, Who Must be Joined 5353 Baltimore, Lord, Penn v., 1 Ves. Jr., 444, Specific Performance 5719 Baltimore Co., Western Union Co. v., 25 Fed. Rep., 30, Injunctions. .. 5655 Bait. & O. R. R. Co., Pullman v., 4 Hughes, 236, Injunc- tions 5650, 5655, 5656 Bamber, Barrett v., 9 Phila., 202, Trusts 5740 Bank v. Bank, 9 Wheaton, 907, Who may be Sued 5326 Bank v. Bank, 1 Pars., 180, Account 5393 Bank v. Bank, 7 W. & S. , 343, Marshalling Assets 5834 Bank v. Bank, 1 Pars. , 180, Revivor 5935 Bank v. Bastian, 10 W. N., 71, Who may Sue 531I Bank, Bell v., 131 Pa. St., 318, Answers. 597(y TABLE OF CASES. Iv Section Bank v. Biddle, 2 Pars. , 31, Demurrers 5945 Bank v. Biddle, 3 Pars., 31, Answers 5968 Bank v. Biddle, 2 Pars., 31, Decrees 6093 Bank, Briscoe v., 11 Pet., 25, Who may be Sued 5836 Bank v. Bruce, 17 N. Y., 507, Who may Sue 5311 Bank, Bughman v., 33 W. N., 557, Accident 5431 Bank v. Chester, 11 Pa. St., 390, Corporations 5535 Bank v. Coal Co., 140 Pa. St., 638, Appeals 6164 Bank, Columbian, 147 Pa. St. , 433, Corporations 5494 Bank, Comm. v.,SW. &S., 184, Injunctions 5703 Bank, Crawford Co. v., 35 W. N., 133, Amendments 5897 Bank, Crawford Co. v., 35 W. N., 133, Want of Parties 5961 Bank, Darrington v., 13 How., 13, Who may be Sued 5326 Bank v. Flour MHla Co.. 39 Fed. Rep., 89, Who may Sue 5311 Bank v. Fox, 17 N. Y., 507, Who may Sue 5311 Bank v. Fox, 3 Blatch., 431, 433, Who may Sue 5311 Bank, Graham v., 3 Lane. L. R., 68, Perpetuation 5535, 5536 Bank v. Hartman, 147 Pa. St., 558, Accident 5447 Bank v. Hiester, 3 Pears., 355, Interpleader 5862 Bank, Hopkins v., Ill Pa. St., 328, Corporations 5493 Bank, In re Reciprocity, 23 N. Y., 9, Who may Sue 5311 Bank, Ins. Co. v., 57 Pa. St., 388, Partition 5783 Bank v. Iron Co., 31 W. N., 503, Who may be Sued 5338 Bank of Kentucky v. Schuylkill Bank, 1 Pars., 180, Revivor 5936 Bank, Klein v. , 44 Leg. Int. , 144, Preparation 5385 Bank v. Kuhler, 19 Kansas, 60, Wlio may Sue 5311 Bank, Luzerne v., 143 Pa. St., 131, Partition 5823 Bank, Manderson v. , 28 Pa. St. , 379, Who may Sue 5309 Bank, Manderson v., 38 Pa. St.. 379, Corporations 5515 Bank, Manderson v., 28 Pa. St., 379, Injunctions 5701 Bank, Ohio v., 10 Ohio, 97, Who may Sue 5311 Bank, Osborn v., 9 Wheaton, 739, Who may be Sued 5336 Bank, Osborn v., 9 Wheaton, 738, Bills of Peace 5843 Bank, Penna. Co. v., 33 W. N., 535, Account 5411 Bank, Penna. Co. v., 33 W. N., 525 ; 3 Dist. Rep., 93, 151, Answers. .. 5971 Bank v. Pritt, 56 Law J. R. (N. S.), 987, Injunctions 5688 Bank?;. R. R. Co., 4 W. N., 264, Receivers 5610 Bank v. Ritchie, 8 Peters, 128, Who may be Sued 53.",3 Bank, Searight v., 163 Pa. St., 504, Account 5394 Ivi TABLE OP CASES. Section Bank, Searight v., 162 Pa. St., 504, Demurrers 5944 Bank?;. Steel Co., 31 W. N., 503, Discovery 5473 Bank v. Supply Co., 150 Pa. St., 36, Masters 6034 Bank, Swentzel v., 29 W. N., 441, Costs 6111 Bank v. Telephone Co., J50 Pa. St., 36, Accident 5426, 5448 Bank v. Thompson, 144 Pa. St., 393, Accident 5452 Bank v. Transportation Co., 18 Vt., 131, Who may Sue 5311 Bank, Trustees of, 2 Pars., 110, Marshalling Assets 5837 Bank •;;. Tyler, 3 W. & S., 373, Trusts 5735 Bank, Warren v., 7 Phila., 156, Eeceivers 5594 Bank, Whiting v., 13 Peters, 6, Review 5878 Bank v. Wister, 2 Peters, 318, Who may be Sued 5326 Banking Assn. v. Ship Bldg. Co., 19 W. N., 471, Eeceivers 5602 Bank's Appeal, 96 Pa. St., 298, Dower 5552 Bank's Appeal, 1 W. N., 627, Trusts 5733 Bank's Appeal, 99 Pa. St., 149, Partition 5801 Bank's Appeal, 29 Pa. St., 330, Marshalling Assets 5837 Barber, Conrow v. , 29 W. N. , 551, Examiner 6016 Barber's Estate, 29 W. N., 552, Costs 6121 Barbey's Appeal, 119 Pa. St., 413, Demurrers 5947, 5949 Barbour, Barton v., 104 U. S., 126, Receivers 5569, 5612 Barclay, Grove v., 1 W. N., 635, Quia Timet 5857 Barclay, Vaughan v. , 6 Whar. , 392, Trusts 5733 Barclay's Appeal, 38 Leg. Int. , 440, Answers 5970 Barcroft, Piatt ■«., 4 PhUa. , 67, Demurrers 5946 Baring v. Nash, 1 Vesey & Beames, 555, Partition 5769 Barings v. Dabney, 19 Wallace, 1, Who may be Sued 5326 Barker v. Steel Co., 23 W. N., 109, Appeals 6177 Bark worth v. Young, 4 Drew., 1, Specific Performance 5726 Barnes i\ Warren, 23 Ler,-. Int., 277, Appeals 6174 Barnesly i\ Powel, 1 Ves. Ch., 120, Review 5881 Barnet v. Barnet, 15 S. & R. , 72, Dower 5559 Barnet v. Darragh, 1 T. & H. Pr., 134, Answers 5978 Barnett, Straus v., 140 Pa. St., Ill, Injunctions 5676 Barnhart, Freetly v., 51 Pa. St., 379, Specific Performance 5721, 5733 Barnitz, Doolittle v. , 1 Phila. , 574, Injunctions , 5641 Barr, Kidder v., 35 N. H., 251. Cross-bills 5391 Barr, McCuUough v., 29 W. N., 123, Answers 597O Barr, Rink v., 8 W. N., 302, Injunctions 57Q7 TABLE OF CASES. Ivii Section Barrett v. Assn., 7 Luz. L. R., 143, Injunctions 5639, 5702 Barrett v. Bamber, 9 Phila., 303, Trusts 5740 Barrett, Hudson v., 1 Pars., 414, Preparation 5376 Barrie, MoCaU v., 14 W. N., 419, Injunctions 5635 Barrie, McCaU v., 16 W. N., 83, Costs ; 6114 Barrington, Towar v., Bright., 253, Specific Performance 5720 Barrington, Towar v.. Bright. , 353, Trusts 5733 Barrow, Shields v. , 17 Howard, 145, Cross-bills 5886 Bany v. McAvoy, 10 Phila. , 99, Preparation 5376 Ban-y, Roese-y., 1 W. N., 20, Who may Sue 5304 Barter, Nelson v., 10 Jur. (N. S.), 832, Interpleader 5863 Bartolet-s Appeal, 1 Walker, 77, Appeals 6164 Barton v. Barbour, 104 U. S., 126, Receivers 5569, 5612 Barton v. Bea'tty, 1 Stewart Eq. (N. J.), 413, Execution 6135 Barwellri. Parker, 2 Ves., 363, Trusts 5751 Basehore's Estate, 4 Leg. Opin., 467, Review 5874 Bastard, Grove v., 2 Phillips' Chanc, 619, Quia Timet 5856 Bastian, Bank v., 10 W. N., 71, Who may Sue 5311 BatdorfE, Ex parte, 13 W. N., 417, Execution 6133 Bateson, Dalton v., 13 C. C, 544, Who may Sue 5804 Batten v. Silliman, 3 Wall. Jr., 124, Injunctions 5650, 5657 Bauer, Ins. Co. v., 9 Phila., 147, Preparation 5383 Bauer, Karstein v. , 4 Penny. , 366, Dower 5553 Bauer w. Seeger, 1 W. N., 98, Masters 6025 Bauer, Wittmer v., 14 W. N., 304, Partition 5809 Baugher v. Conn., ICC, 184, Answers 5970 Baugher, Gordon v., 2 W. N., 14, Injunctions 5648 Baugher's Appeal, 8 Atlan., 838, Answers 5970 Bauni, Du Bois v., 46 Pa. St., 537, Specific Performance 5721 Baum, Wicklein v., 2 Woodward, 242, Amendments 5904 Baxter v. Buchanan, 7 Phila., 315, Receivers 5580 Baxter v. Buchanan, 3 Brews., 435, Injunctions 5655 Baxter, Jenkms v., 160 Pa. St., 199, Corporations 5493 Baxter, Jenkins u, 34 W. N., 114, Demurrers 5944 Bayard, Waldron v., 1 Phila., 484, Discovery 5474 Bayard, Waldron w., 1 Phila., 484, Answers 5968 Bayler v. Comm., 40 Pa. St., 37, Specific Performance 5733 Baylor, Reynolds v., 3 C P., 54 ; 7 Lane. Law Review, 40, Examiners. 6032 Baylor, Reynolds t>., 3 C. P., 54, Costs 6130 Iviii TABLE OF CASES. Seetioit Beach, Adams v., 1 Phila., 99, Interpleader 5863, 5863 Beach, Chapman v., 1 Jac. & Walker Ch. Kep., 573, Account 5399 Beale, American Carpet Co. v., 5B. &A., 529, Injunctions 5656^ Beall, Robinson c, 36 Ga.,17, Who may Sue 5311 Bean 11. Coleman, 44 N. H., 539, BiUs of Peace 5848 Beane v. Orr, 9 Off. Gaz., 355, Injunctions 5655 Bean's Road, 35 Pa. St. , 280, Appeals 6164 Beasley, Hildebrand v., 7 HeiskeU, 131, Cross-bills 5886 Beatty, Barton v., 1 Stewart Eq. (N. J.), 413, Execution 6135 Beatty v. Be Forest, 12 C. E. Green, 482, Execution 6135 Beatty v. Henry, 30 Leg. Int., 140 ; 10 Phila., 35, Trusts 5733 Beatty's Appeal, 122 Pa. St., 428, Injunctions 5647 Beaumont V. Meredith, 3 Vesey & Beames, 181, Who Must be Joined.. 5346 Beavan v. Carpenter, 11 Sim., 22, Perpetuation 5540 Bechtel v. Sheaf er, 21 W. N., 65, Interpleader 5863, 5864 Becker v. Kehr, 49 Pa. St., 323, Marshalling Assets 5836 Becker, Noble v., 3 Brews., 550, Injunctions 5639 Becker v. Patten, 1 Dist. Rep. , 24, Specific Performance 5733 Beddow v. Dewitt, 43 Pa. St. , 326, Specific Performance 5721 Beddow v. Dewitt, 43 Pa. St., 326, Marshalling Assets 5836 Bedell's Appeal, 87 Pa. St., 510, Masters 6034 Bedell's Appeal, 87 Pa. St. , 510, Costs 6110 Bedford, Murphy v., 35 Leg. Int., 262, Masters 6039 Bedford v. Potter, 9 Phila., 560, Injunctions 5641 Peek's Appeal, 15 Pa. St. , 406, Review 5874 Beers v. Arkansas, 20 Howard, 527, Who may be Sued 5325 Beers, Trustees v., 2 Black, 448. Who may be Sued 5326 Beidler v. Howell, 8 Phila., 273, Execution 6138 Beilstein's Estate, 37 P. L. J. (O. S.l 255. Dower 5552 Behrens, Sieveking v., 2 M. & C, 5S1, Interpleader 5866 Belohier, Pearson v., 4 Ves., 628, "Who may Sue 5317 Bell, Andrews v., 56 Pa. St., 343, Specific Performance 5721 Bell V. Bank, 131 Pa. St., 318, Answers 5970 Bell, Horsley v., 1 Brown's Ch. C, *101 n., Who Must be Joined 5353 Bell V. Reed, 31 Leg. Int. , 389, Injunctions 5692 Bellas V. Graham, 3 Amer. Law Jour., 64, Partition 5775 Bell's Appeal, 115 Pa. St., 88, Who may Sue 5315 Belmont, Frost v., 6 Allen, 152, Bills of Peace 5843 BelsterUng v. Prowattan, 6 Phila., 40, Account 5392. TABLE OF CASES. lix Section Benfields v. Solomons, 9 Ves. , 77, Demurrers 5944 Benliert v. Benkert, 35 Leg. Int. , 16, Discovery 5474 Benner, Evans v., 3 P. & W., 454, Dower 5559 Banners, Allen v. , 10 Phila. , 10, Injunctions 5646 Bennethum, Bowers v., 133 Pa. St., 306, Appeals 6164 Bennett, Ball Club v., 30 P. L. J. (N. S.), 152, Injunctions 5669 Bennett v. Hunt, 148 Pa St., 357, Appeals 6148 Bennett, Kelly v., 133 Pa. St., 218, Appeals 6164 Bentz, HetzeU v., 8 Phila., 261, Injunctions 5647 Berens, Werne v. , 1 Phila. , 483, Answers 5968 Berkeley, Lord Dursley v., 6 Vesey, 251, Perpetuation 5532, 5535 Berlew v. Illuminating Co., ICC, 651, Injunctions 5641 Bernales, De La Torre v., 1 How. Supp. to Ves. Jr., 149, Who may be Sued 5335: Bernales, De La Torre v. , 4 Mad. , 396, Amendments 5913 Berry, Hasty v., 1 S. W. Rep., 8, Decrees 6095 Berryhill v. Dowding, 8 Watts, 313, Appeals 6183- Berryman v. Graham, 6 C. E. Green, 370, Cross-bills 5891 Bessinger's Estate, 5.W. N., 330, Review 5874- Best, Gompertz v., 1 Younge & Collyer, 117, Preparation 5383 Best, How v., 5 Haddock's Chanc. Rep., 19, Who may be Sued 5328 Bethune v. Farebrother, 5 Maule & Selwyn, 885, Preparation 5373 Betts' Appeal, 10 W. N., 431, Injunctions 5066- Betts, Gibson v., 1 Blatch., 168, Injunctions 5651 Betz V. Heebner, 1 P. & W., 280, Marshalling Assets 5834 Bevan v. Carpenter, 11 Sim., 33, Perpetuation 5540 Bevans v. Turnpike, 10 Pa. St., 176, Discovery 5465, 5473 Bibby's Estate, 43 Leg. Int., 383, Review 5S74 Bickford v. Ice Co., 8 W. N., 106, Who may Sue 5303 Biddle v. Ash, 3 Ash., 211, Injunctions 5655 Biddle, Baker v., 1 Baldwin, 894, Discovery 5475 Biddle, Bank v., 3 Pars., 31, Demurrers 5945 Biddle. Bank v., 2 Pars., 31, Answers .•: 5968 Biddle, Bank v., 2 Pars., 31, Decrees 6093 Biddle, Dundas v., 3 Pa. St., 160, Specific Performance 5730- Biddle's Appeal, 19 W. N., 219, Costs 6111 Bierbower's Appeal, 107 Pa. St., 14, Account 5393 Bierer's Appeal, 92 Pa. St., 365, Accident 5447 Biembaum, Lowenstein u. , 8 W. N. , 301 , Master 6038 Ix TABLE OF CASES. Section Bighamv. Henrici, 33 W. N., 84, Decrees 6090 BUes' Appeal, 119 Pa. St., 105, Partition 5823 JBOger, Herdic v., 47 Pa. St., 60, Account 5396 Bingham v. Cabot, 3 Dall., 383, Demurrers 5944 Binkes, Spragg v., 5 Ves., 583, Who may Sue 5300 Binney, Union Co. v., 5 Fish., 166, Injunctions 5655 Binns, Cantelo v., 3 Miles, 86, Who may Sue 5303 Birckhead v. Brown, 5 Sand. , 134, Decrees 6005 Bird V. Littlehales, 3 Swanston, 299 n.. Execution 6141 Biscoe, Arnott v., 1 Ves., 95, Answers 5970 Bishop V. Cowden, 5 Montg. Co. L. Rep., 151, Wlio Must be Joined. . . 5346 Bishop V. Cowden, 5 Montg. Co. L. Rep., 151, Preparation 5372, 5384 Bishop V. Cowden, 6 Montg., 201, Replications 5993 Bishop V. Paine, 11 Ves. Jr., 199, Who Must be Joined 5357 Bishop V. Reed, 3 W. & S., 364, Accident 5421 Bishop's Estate, 1 Woodward, 149, Review 5874 Bitting, HasslertJ., 40 Pa. St., 68, Answers 5970 Bitting's Appeal, 105 Pa. St., 517, Demurrers 5957 Black V. Black, 37 Georgia, 40, Decrees 6095 Black, Burr v., 1 Lack. Jur., 163, Costs 6110 Black V. Hugging, 3 Tenn. Ch., 780, Who may Sue 5310 Black, McCay v., 36 Leg. Int., 471, Receivers 5598 Black, McCay v., 14 Phila., 635, Receivers 5608 Black, McCay v., 36 Leg, Int.. 471, Masters 6034 Black V. Moltby, 36 W. N., 97, Who may Sue 5305 Black, Salsbury v., 119 Pa. St., 300, Specific Performance 5723 Black's Appeal, 38 Leg. Int., 441, Receivers 5598 Black's Appeal, 106 Pa. St., 344, Appeals 6181 Blackwell v. Dibrell, 3 Hughes, 151, Injunctions 5661 BlaisdeU v. Dows, 4 B. & A., 499, Injunctions 5651 Blake, Corkin v., 4 Phila., 10, Demurrers 5946 Blake v. Greenwood, 14 Blatch., 342, Injunctions 5656 Blakely, Jordan ^ , 13 Lane. Bar, 99, Receivers 5598 Blanchard v. Reeves, 1 Fisher, 103, Injunctions 5651 Blanchard v. Reyburn, 33 Leg. Int., 339, Injunctions 5676 Bland, Jones v., 113 Pa. St., 176 ; 116 Pa. St., 190, Dower 5558 Bland v. Winter, 1 Sim. & Stu. Rep., 347, Who Must be Joined 5360 Blaney, StiU v., 33 W. N., 536 ; 159 Pa. St., 264, Partition 5775 Blauvelt v. Smith, 7 C. E. Green, 343, Execution 6135 TABLE OF CASES. IxL Section. Blennerhassett v. Day, 2 Ball. & B., 118, Trusts 5750 Blessing v. Galveston, 42 Tex., 641, Bills of Peace 5842 Bliss V. Boscawen, 2 Ves. & B., 103, Amendments 5913 Blodgett V. Hobart, 18 Vt. ,414, Cross-bills 588& Blondheim i\ Moore, 11 Maryland, 365, Receivers 5573 Blood V. Loan Co., 164 Pa. St., 95, Accident 5438 Blood I'. Loan Co., 164 Pa. St., 95, Decrees , 6093 Blood V. Ludlow, 150 Pa. St. , 1 , Account 5394 Bloodgood, Kane v., 7 Johns. Chanc, 91, Dower 5564 Bloodgood's Estate, 8 C. C, 546, Dower 5558 Bloom, Gates tj., 30 W. N., 137, Appeals 6183 Bloomer's Appeal, 25 P. L. J. , 73, Costs 6116 Blount V. Burrow, 3 Bro. C. C, 90, Preparation of Bill 5373 Blumenthal v. Brainerd, 38 Vt. , 403, Receivers 5599 Blygh V. Sansom, 37 W. N., 390, Accident .5433 Boardman v. Watch Co., 8 Lane, 35, Demurrers 5945, 5947 Boaro, Ehrardt v., 113 U. S. , 538, Injunctions 5673 Boddy 1'. Kent, 1 Mer., 364, Revivor 5933 Bodine v. Glading, 31 Pa. St., 50, Specific Performance 5720, 5721 Bogardus, Elder v., 1 Edmonds' Select Cases (N. Y.), 110, Production. 6008 Bogardus v. Williams, ICC, 673, Who may Sue 5303 Bogert V. City, 27 N. J. Eq., 568, Bills of Peace 5844 Boggs, Peebles v., 1 Phila., 151, Discovery 5473 Boley, Morris v., 1 W. N., 303, Bills of Peace 5811 Bolland, Flight v., 4 Russ., 298, Specific Performance 5720 Bolton V. Bolton, 1 Daniell's Ch. Prac. (6th Am. Ed.). 409, Amendments. 5912 Bomier v. Caldwell, 8 Mich., 463, Specific Performance 5721 Bond V. Bunting, 78 Pa. St., 219, Trusts 5783 Bond V. Duer, 3 Phila., 307, Answers 5968 Bond V. Mayor, 4 C. E. Green (N. J.), 376. Bills of Peace 5844 Bond, Peyton v., 1 Sim., 390, Who may Sue 5395 Bones' Appeal, 37 Pa. St., 492, Dower 5564 BonneU, AuU v., 11 W. N., 376 ; 2 Penny., 334, Dower 5553 Booth V. Clark, 17 How. (IT. S.), 332, Receivers 5594 Borland v. Meurer, 139 Pa. St., 513, Appeals 6164 Borland v. Murphy, 4 W. N. , 473, Dower 5552, 5558 Borland, Murphy v., 92 Pa. St., 86, Dower 5552 Bom, Sylvester v., 133 Pa. St., 467, Specific Performance 5721 Borough, Linn v., 160 Pa. St., 511, Masters 603& Ixii TABLE OF CASES. Section Borough V. Rwy. Co., 2 C. C. , 639, Injunctions 5676 3orough V. Rwy. Co., 148 Pa. St., 175, Appeals 6164 Borough tJ. Saint, 6 Cent. Rep., 142, Masters 6034 Borough V. Welsh, 117 Pa. St., 174, Dower 5552 Borough's Appeal, 17 Atl., 34, Injunctions 5676 Boscawen, Bliss v., 2 Ves. & Beames, 103, Amendments 5912 JBosville, Lord Glenorchy v., 1 Lead. Cases Eq., *49, Accident 5441 Boswell, Thomas v., 37 Leg. Int., 147, Who Must be Joined 5360 Boswell, Thomas v., 37 Leg. Int., 147, Preparation 5373 ' Boswell, Thomas v. , 37 Leg. Int. ,147, Demurrers 5947 Bouchier, Taylor v., 2 Dick., 504, Who may Sue 5316 Bowen, Ashu, 30 Leg. Int., 226, Decrees 6091 Bowen v. Thornton, 9 W. N., 575, Execution 6133 Bowers v. Bennethum, 133 Pa. St. , 306, Appeals 6164 Sowers, Gunn v., 126 Pa. St., 552, Amendments 5914 Bowers v. School Board, 2 Pears. , 227, Costs 6111 Bowman v. Stewart, 165 Pa. St., 395, Account 5396 Boyd, Fire Ins. Patrol v., 44 Leg. Int., 253, Injunctions 5648 Boyd's Appeal, 15 Atl., 736, Injunctions 5648 Boyer, Naoe v., 30 Pa. St., 99, Accident. 5431 Boyer's Estate, 8 C. C, 177, 423, Partition 5822 Boynton, Cooke v., 135 Pa. St., 102, Injunctions 5629 Boze V. Davis, 14 Tex., 331, Specific Performance 5721 Bozman, Armistead v., 1 Ired. Eq. (N. C), 117, Replications 5995 Brace «. Evans, 6 C. C, 19, Who may Sue 5323 Brace v. Evans, 35 P. L. J., 399, Injunctions 5683 Braceu Evans, 36 P. L. J., 88 ; 6 C. C. Rep., 19, Costs 6114 Brace, Woodward v., 139 Pa. St., 316, Masters 6038 Bracher, Greenwood v., 1 Fed. Rep., 857, Injunctions 5653 Bradley v. R. R. Co. , 36 Pa. St. , 141, Corporations 5525 Bradley v. R. R. Co., 36 Pa. St., 141, Trusts 5733 Bradley v. Rwy. Co., 34 W. N., 78 ; 160 Pa. St., 73, Masters 6038 Bradley's Estate, 39 Leg. Int., 265, Rehearing 6102 Bradley Co. v. Chas. Parker Co., 17 Fed. Rep., 240, Injunctions 5655 Bradsti-eet, Hessel v., 141 Pa. St., 501, Appeals 6176 Brady v. Assn., 14 W. N., 419, Demurrers 5945, 5947 Brady v. Loan Assn., 14 W. N., 419, Accident 5433 Brady v. Maynard, 33 Leg. Int., 276 ; 24 Leg. Int., 320, 300, Trusts. . . . 5740 Brady v. Weightman, 8 Phila. , 333, Injunctions 5647 TABLE OF CASES. Ixiii Section Brady v. Young, 4 PhUa. , 127, Cross-bills 5891, 5893 Brady's Appeal, 66 Pa. St., 277, Specific Performance 5721 Bragg, Schott v., 1 T. & H. Pr., 96, Answers 5968 Brainard i\ Holsai^le, 4 Greene (Iowa), 485, Accident 5434 Brainerd, Blumenthal v., 38 Vt., 402, Receivers 5589 Brandon v. Brandon, 7 DeG. M. & G., 365, Eehearing 6101 Brandon Co. v. Prime, 14 Blatch., 371, Cross-biUs 5886 Brant, Parker v., 1 Fish., 58, Injunctions 5651 Brass Co. v. Adler, 2 Mona., 285, Costs 6110 Bratton et al., Sproule v., MS., Partition 5799, 5810. Breeding v. Finley, 1 Dana (Ky.), 477, Wbo may Sue 5305 Brendal, McVey v., 7 Lane, 399 ; 5 Lane, 350, Answers 5970 BrendeU, McVey v., 29 W. N., 1, Injunctions 5661 Breneiser v. Davis, 141 Pa. St., 85, Accident 5447 Breneman, Britzer v., 9 Lane. Bar, 182, Injunctions 5647 Breneman's Estate, 150 Pa. St. , 494, Marshalling Assets 5837 Bressier, Society Education ^■.. 33 Leg. Int., 264, Specific Performance. 5733 Brett, Chillas v., 5 Clark, 325, Appeals 6177 Brewer, Clum v., 2 Curt., 506, Injunctions 5651 Brewer v. Theatre, 104 Mass. , 378, Who may Sue 5310 Brewing Co. v. Exchange, 12 W. N., 460, Amendments 5905 Brewing Co. , Nester «. , 161 Pa. St. , 473, Injunctions 5682 Brewster v. Brewster, 3 Phila. , 355, Demurrers 5945 Brewster v. Parry, 14 Fed. Rep., 694, Injunctions 5655 Bricker v. Grover, 30 Leg. Int. , 380, Injunctions 5686 Bridge Co., Mechling v., 1 Grant, 416, Injunctions 5676 Bridge Co., Philadelphia v., 6 Phila., 523, Corporations 5492 Bridge Co., Comm. v., 20 Pa. St., 185, Corporations 5492 Bridge Co., State v., 18 How. , 518, Injunctions 5684 Bridgeport Co., Wells i'., 80 Conn., 316, Preparation 5874 Briggs, Langdale v., 8 DeG. M. & G., 391 ; 89 Eng. Law & Eq. Rep., 194, Quia Timet 5856 Briggs, Steele v., 22 111. 648, Specific Performance 5721 Briggs V. Vottler, 4 W. N., 272, Injunctions 5676 Bright V. McCuUough, 1 Leg. Rec. , 281, Preparation 5384 Brightley, Edwards v., 11 Cent. Rep., 184, Preparation 5373 Brigstocke v. Roch, 7 Jur. (N. S.), 63, Perpetuation 5539 Brindle V. Brindle, 50 Pa. St., 387, Appeals 6174 Briscoe v. Bank, 11 Peters, 25, Who may be Sued 5336 Ixiv TABLE OF CASES. Section Bristor v. Tasker, 135 Pa. St., 110, Trusts 5747 Bristor v. Tasker, 135 Pa. St., 110 ; 26 W. N., 115, Masters 6025 Bristor v. Tasker, 135 Pa. St., 114, Appeals , 6168 Britzer v. Breneman, 9 Lane. Bar, 183, Injunctions 5647 Broad, O'Donnell v., 149 Pa. St., 24, Appeals 6184 Broad v. Wickham, 4 Simons, 511, Execution 6133 Brockerhoff, Gaines v., 36 W. N., 358, Masters 6034 Brodhead, Duparquet v., 1 Northam., 48, Who may Sue 5303 Bromley, McDonald v. , 6 Phila. , 303, Injunctions 5655 Bromley v. Smith, 1 Simons' Rep., 8, Who Must be Joined 5346 Bronson v. Kinzie, 1 Howard, 311, Corporations 5535 Brooke v. City, 34 W. N., 341, Injunctions 5684 Brooke?;. Phillips, 6 Phila., 393, Demurrers 5947 Brocket). Smith, 33 W. N., 74, Interpleader 5862 Brooke u. Underkofifer, 1 W.'n., 480, Appeals 6177 Brooks V. Church, 135 Pa. St., 137, Appeals 6175 Brooks V. Gibbons, 4 Paige, 374, Demurrers 5941 Brooksbank v. Smith, 3 Young & Collier, 58, Trusts 5750 Brotherline, Smith v., 63 Pa. St., 461, Trusts 5740 Brotherton v. Reynolds, 164 Pa. St., 134, Masters 6084 Brotzman's Appeal, 119 Pa. St., 645, Amendments 3904 Brotzman's Appeal, 119 Pa. St., 645, Appeals 6183 Brough's Estate, 71 Pa. St., 460, Marshalling Assets 5837 Broughton, Wharem v., 1 Ves. Sr., 184, Execution 6140 Brouse, Simms v., 10 Phila. Rep., 13, Receivers 5580 Brown, Atty.-Genl. t?., 1 Swanston'sCh. Rep., 365, Who Must be Joined. 5353 Brown v. Bailey, 159 Pa. St., 121, Specific Performance 5731 Brown, Birckhead v., 5 Sandford, 134, Decrees 6095 Brown v. Church, 23 Pa. St., 495, Partition 5771 Brown v. City, 41 Leg. Int., 242, Injunctions 5707 Brown v. Grey, 2 Kulp, 136, Who Must be Joined 5350 Brown, McFarland v., 11 S. & R., 131, Who may Sue 5305 Brown v. Pitcairn, 30 W. N. , 35, Preparation 5373 Brown v. Pittcairn, 148 Pa. St., 387, Specific Performance 5721, 5730 Brown v. Rioketts, 2 Johns. Ch. , 425, Replications 5993 Brown v. Seidel, 153 Pa. St., 60, Injunctions 5661 Brown's Appeal, 63 Pa. St., 17, Injunctions 5629, 5655 Brown's Appeal, 66 Pa. St., 155, Injunctions 5647 Brown's Appeal, 84 Pa. St., 457, Partition 5776 TABLE OF CASES. Ixv Section Brown's Estate, 1 Chester Co. Eep. , 314, Partition 5833 Brownell v. Curtis, 10 Paige Ch. (N. Y.), 310, Demurrers 5940 Bruce, Bank v., 17 N. Y., 507, Wlio may Sue 5311 Bruce v. Jennings, 3 Pears. , 61, Trusts 5733 Bruce v. Pittsburg, 161 Pa. St., 517, Corporations 5481 Bruce v. Pittsburg, 166 Pa. St., 153, Injunctions 5684 Bmen, Iddings i\, 4 Sand. Ch. Rep., 263, Receivers 5609 Bruner's Appeal, 7 W. & S., 269, MarshaUing Assets 5837 Bryar's Appeal, 111 Pa. St. , 81, Dower 5553 Bryson, Myers v. , 83 W. N. , 258, Who Must be Joined 5343 Bryson, Myers v., 83 W. N., 253, Preparation 5373 Bryson, Myers v. , 158 Pa. St. , 347, Account 5391 Bryson, Myers v., 158 Pa. St., 255, Amendments 5914 Bryson, Myers v., 158 Pa. St., 255, "Want of Parties 5961 Bryson, Myers n., 83 W. N., 358, Costs 6110 Bryson v. Wliiteliead, 1 Sim. & Stu. , 74, Injunctions 5667 Buclianan, Baxter v. ,7 Phila., 315, Receivers 5580 Buchanan, Baxter r., 8 Brews., 485, Injunctions 5655 Buchanan, Edsell v. , 4 Bro. C. C, 254, Demurrers 5941 Buchanan v. KeiT, 159 Pa. St., 438, Injunctions 5683 Buchanan v. Noel, 35 Leg. Int., 490, Quia Timet 5856 Buchanan v. Streeper, 89 Leg. Int., 168, Examiners 6013 Buchanan v. Streper, 5 W. N., 289, Injunctions 5693 Bucls: V. James, 3 Chester Co. Rep., 401, Who may Sue 5304 Buck Mt. Co. V. Lehigh Co., 50 Pa. St., 91, Corporations 5493 Buckley v. Collins, 8 Luz. L. Reg. , 77, Dower 5558 Buckman, Whitney v., 26 Cal., 447, Receivers 5582 Buckmaster v. Harrop, 13 Ves., 458, Rehearing 6105 Buffalo Scale Co., Weeks v., 11 Fed. Rep., 901, Injunctions 5650 Buffington, Sharps., 2 W. &S., 454, Who may Sue 5304 Buflum, Seitz v., 14 Pa. St., 70, Want of Parties 5961 Bugbee's Appeal, 110 Pa. St., 331, Masters 6034 Bugbee's Appeal, 110 Pa. St., 331, Appeals 6184 Bugger V. Cresswell, 12 Atl., 839, Accident 5452 Bughman v. Bank, 33 W. N., 557, Accident 5431 Buildmg Assn.'s Appeal, 83 Pa. St., 441, Account 5391 Building Assn.'s Appeal, 83 Pa. St., 441, Decrees 6085 Building Assn. v. Mayer, 45 Leg. Int., 346, Who may be Sued 5334 Building Assn. v. Mayer, 3 Montg., 41, Production 6003, 6006 5 Ixvi TABLE OF CASES. SeoHofl. Building Assn., Morrison v., 1 Lack. Jur., 4a7, Receivers 5573 Bullock V. MoDonough, 3 Pears., 195, Injunctions 5713 Buloid, White v., 3 Paige, 164, Cross-bills 5891, 5894 Bumberger v. Clippenger, 5 W. & S., 311, Specific Performance 5733 Bunnell's Appeal, 69 Pa. St., 59, Injunctions 5647 Bunting, Bond v., 78 Pa. St., 219, Trusts 5733 Burcham, Crews v., 1 Black (U. S.) Eep., 353, Quia Timet 5855 Bin-d, Conner t;., 1 Leg. Chron., 17, Review 5877 Burden, Carpenter v., 3 Pars., 34, Injunctions 5639 Burdett v. Rockley, 1 Vernon, 118, Dower 5565 Burdett v. Rockley, 1 Vernon, .58, Execution 6142, 6148, 6144 Burgesses, Atty.-Genl. v., 2 Mylne & Keen Chanc. Rep., 35, Who may be Sued .5328 Burke, Huber v., 11 S. & E., 288, Specific Performance 5721 Burke v. Miller, 4 Gray, 114, Decrees 6095 :Burke v. Myers, 10 W. N., 481, Injunctions 5676 Burke v. Teller, 1 Dist. Rep., 23, Costs 0111 Burke v. Weiss, 1 Kulp, 310, Execution 6134 Burke's Appeal, 99 Pa. St., 360, Answers .5968 Burke's Appeal, 99 Pa. St., 360, Prosecution 6061 Burk's Appeal, 75 Pa. St., 141, Specific Performance .'5723 Burleigh Co. v. Lovdell, 1 Holmes, 450, Injunctions 5654 Burney v. Morgan, 1 S. & S., 858, Revivor 5922, 5923 Burr V. Black, 1 Lack. Jur., 163, Costs 6110 Bun-ell, Comm. v., 7 Pa. St., 34, Corporations 5492 Burrow, Blount v., 3 Bro. C. C, 90, Preparation .5372 Burt V. Dennet, 3 Brown's Ch. Cases, 225, Who Must be Joined 5348 Burt, Larison v., 4 W. & S., 28, Specific Performance 5722 Burton, Kirkley ■;;., 5 Mad., 378, Demurrers .5944 Burton, Long v. , 2 Atkyn, 218, Cross-bills 5885 Burton v. Peterson, 4 W. N., 256, Masters 6027 Burton, Simpson v. , 1 Bear. , 556, Preparation 5368 Burton, Young v., 1 McMullan's Eq. (S. C), 254, Specific Performance. 5721 Burton's Appeal, 93 Pa. St., 314, Masters 6037, 6034 Bush, Conklin v., 8 Pa. St., 517, Dower 5560 Bute, Koons v., 2 PhUa., 170, Answers 5970 Butler V. Farr, 1 W. N., 11, Injunctions 5641 "Butterworth v. Bailey, 15 Ves., 358, Amendments 5904 3uxton V. Lister, 3 Atk., 384, Specific Performance 5720, 5721 TABLE OF CASES. Ixvii c. Section Cabot, Bingham v., 3 Dall., 382, Demurrers 5944 Cabot's Estate, 7 Phila. , 437, Marshalling Assets 5837 Cadwalader's Appeal, 57 Pa. St., 158, Specific Performance 5731 Caldwell, Bomier v., 8 Mich., 463, Specific Performance 5701 Caldwell, Huddy u. , 6 W. N. , 448, Masters 6037 Caldwell, Leech v., 33 Leg. Int., 364, Acooiint 5396 Caldwell, Reynolds v., 51 Pa. St., 298, Account 5396 Caldwell's Appeal, 7 Atlan., 311, Specific Performance 5722 Calhoun, Felty?;., 147 Pa. St., 37, Review 5875 Calker v. Ellis, 10 Phila., 375, Account 5391 Calkins, Duff v., 25 Off. Gaz., 601, Injunctions 5651 Callahan's Appeal, 23 W. N., 233, Accident 5435 Callaway, State v., 51 Mo., 395, Bills of Peace 5844 Callen v. Ferguson, 29 Pa. St., 347, Specific Performance 5721 Calmady v. Calmady, 2 Ves. Jr., 570, Partition 5769 Calverly v. Phelps, 6 Maddock's Chanc. Rep., 239, Who Must be Joined. 5343 Camac v. Grant, 1 Sim. . 348. Who may Sue 5305 Camarthen Atty.-Genl. v. Cooper's Chanc. Cases, 30, Preparation 5384 Cambers v. Waterman, 8 Phila., 82, Decrees 6087 Camel, McC'artee v., 1 Barb. Ch., 455, Dower 5564 Cameron, Ladd v., 25 Fed. Rep., 37, Injunctions 5651 Cameron, Matthis v., 62 Mo., 504, Bills of Peace 5844 Campbell v. Campbell, 26 Leg. Int., 261, Injunctions 5700 Campbell, Kitchen v., 3 V/ilson (Eng.), 304, Decrees 6095 Campbell, v. Knowles, 36 Leg. Int., 193, Production. .6003, 6005, 6006, 6007 Campbell v. Knowles, 36 Leg. Int. , 193, Masters 6038 Campbell, Ong v., 6 Watts, 392, Specific Performance 5720 Campbell v. Patterson, 95 Pa. St. , 447, Accident 5447 Campbell v. Patterson, 95 Pa, St., 447, Answers 5970 Campbell, Proctor i;., 5 C. P., 370, Injunctions 5673 Campbell v. Schofield, 39 Leg. Int., 325, Injunctions 5629 Campbell v. Spencer, 3 Binn., 129, Specific Performance 5731 Campbell v. Taggart, 33 Leg. Int., 396, Injunctions 5707 Campbell's Appeal, 22 W. N., 81, Injunctions 5701 CampbeU's Estate, 13 W. N., 144, Partition 5823 Campbell's Estate, 33 W. N., 81, Costs 6111 Canal Co. v. Coal Co., 31 Pa. St., 131, Decrees 6085 -Canal Co., Ins. Co. v., Brightly's Rep., 48, Accident 5431, 5449 Ixviii TABLE OF CASES. Section Canal Co. v. School District, 7 Luz. L. Reg., 93, Injunctions 5700 Canal Co., Shaw v., 41 Leg. Int., 165, Who may Sue 5313 Cantelo v. Binns, 2 Miles, 86, Who may Sue 5303 Canton, Raynham v., 3 Pickering, 293, Accident 5416 Card, Dodge v., 1 Bond, 393, Injunctions 5655 Care ■;;. Keller, 77 Pa. St., 487, Dower 5564 Carew v. Johnston, 2 Sch.& Lef., 280, Preparation 5389 Carew, Philips v., 1 P. Wms., 116, Perpetuation 5538 Carew, Philips «., 1 P. Wms., 117, Demurrers 5944 Carew v. White, 5 Beavan, 172, Production 6008 Carey v, Ector, 7 Ga. , 99, Answers 5964 Carlisle, Hockenburg t)., 5 W. & S., 348, Trusts 5740 Carlisle v. Wilson, 13 Ves. Jr., 278, Account 5391 Carlton, Poor v., 3 Sumner, 83, Injunctions 5639 Carpenter, Beavan tj., 11 Sim., 22, Perpetuation 5540 Carpenter v. Burden, 2 Pars., 24, Injunctions 5639 Carpenter v. Koons, 20 Pa. St., 222, Marshalling Assets 5836 Carpenter, Thompson v., 4 Pa. St., 132, Specific Performance 5721 Carpenter's Estate, 1 L. V., 138, Review 5874 Carr, Kurtz z;. , 5 N. E. Rep., 692, Decrees 6095 Carr, Nicol v., 35 Pa. St., 381, Specific Performance 5723 Carr v. Raleigh, 2 Phila., 242, Account 5397 Carriage Co. v. Lowenstein, 4 Kulp, 359, Who may Sue 5303 Carrick, Fouse u., 5 W. N., 168, Who may Sue 5305 Carroll v. Hicks, 10 Phila., 308, Injunctions 5666 Carson v. Potter, 18 Pa. St., 457, Specific Performance 5721 Carson, Shattuck v., 2 Cal., 588, Quia Timet 5855 Carsten, Orth v., 1 W. N., 199, Injunctions 5641 Cartwright v. Clark, 4 Metcalf, 104, Cross-bills 5891 Cartwright, Pultney v., 2 Atk., 380, Partition 5771 Cai-ver, Paul v., 24 Pa. St., 207, Answers 5970 Cary v. Lowell Co., 33 Off. Gaz., 1009, Injunctions 5651 Casberd v. Atty.-Genl., 6 Price, 411, Who may be Sued 5324 Cascaden v, Cascaden, 140 Pa. St., 140, Demurrers 5944 Case, Hai-d v., 32 111., 45, Cross-biUs 5886 Casey, R. R. Co. v., 26 Pa. St., 287, Injunctions 5S27 Cash's Appeal, 1 Pa. St. , 166, Appeals Gl!-I3 Cassidy v. Knapp, 36 W. N. , 197, Rules 5187 Catchpole, Cook v., 34 L. J. Rep. (Ch.) (N. S.), 60, Account 5397 TABLE OF CASES. Ixix Section Catherall v. Davies, 1 Giff . , 326, Interpleader 5866 Cattell V. Lowry, 45 Iowa, 478, Bills of Peace 5844 CaufCman, Pancake «. , 114 Pa. St. , 113, Accident 5450 Cavil V. Smith, 8 Brown's Chanc. Cases, 362, Execution 6140 Celluloid Co. v. Goodyear Co., 13 Blatch., 389, Injunctions 5654 Cemetery Co. v. Griffin, 35 "\V. N., 537, Masters 6034 Cemetery Co.'s Appeal, 4 Atl., 528, Costs 6110 Chadwell, Godfrey v., 2 Vernon's Eep. , 601, Who Must be Joined 5354 Chalfant v. Vf Oliams, 35 Pa. St., 212, Accident 5442 Chamberlain v. GaiUard, 26 Ala., 504, Decrees 6095 Chamberlin, Smart v., 26 W. N., 272, Y/ho may Sue 5303 Chambers v. Gold win, 9 Ves. Jr. Rep., 69, Who Must be Joined 5351 Chambers, Peacock v., 3 Gr., 396, Answers 5970 Chambers v. Thompson, 4 Brown Ch. , 434, Demurrers 5944 Chambers v. Waterman, 1 Leg. Gaz., 60, Amendments 5905 Chandler v. City, 2 C. C, 407, Injunctions 5707 Chandler, McBean v., 9 Heiskell (Tenm), 350, BUls of Peace 5844 Chapman v. Beach, 1 Jac. & Walker's Ch. E., 573, Account 5399 Charkieh, The, 42 Law Jour. Rep. (N. S.) (Adm.), 17, Who may be Sued. 5324 Charles Parker Co., Bradley Co. v., 17 Fed. Rep., 240, Injunctions 5655 Charles, Trullinger v., 129 Pa. St., 289, Injunctions 5647 Charles, Trullinger v., 129 Pa. St., 289, Appeals 6164 Chase v. Goodale, 2 Luz. Law T. (N. S.), 107, Receivers 5596 Chester, Bank I)., 11 Pa. St., 290, Corporations 5535 Chester, Talbot v., 2 Chest., 57, Trusts 5733 Chesterfield v. Janssen, 1 Lead. Cases Eq., "*624, Accident 5428 Chew, Sims v., 15 S. & R., 197, Specific Performance 5723 Chew, Sims v., 15 S. & R., 197, Trusts 5738 Chew's Appeal, 44 Pa. St., 247, Execution 6133 Chew's Appeal, 3 Grant, 294, Appeals 6179 Cheyney v. Wright, 7 Phila., 431, Injunctions 5647 Chicago, Dows v., 11 Wallace, 108, Bills of Peace 5842 Child, Walmsley r., 1 Ves. Sr. Rep., 344, Accident 5414 Childress, Macey v., 2 Tenn. Ch., 441, Cross-bills .5889 Chillas V. Brett, 5 Clark, 325, Appeals 6177 Cholmondeley v. Clinton, 19 Ves. Jr., 261, Injunctions. . . ■. .".CC7 Chrisholm v. State of Georgia, 2 Dall. , 419, Who may be Sued 5325 Chrisman, Dickerson v., 28 Mo., 134, Specific Performance 5731 Christ, Firestone u, 2 C. C, 413, Who may Sue 5303 IXX TABLE OF CASEa. Seotioa Christian, American Middling Co. v., 4 Dill., 461, Injunctions 5653 Christman's Estate, 1 Woodward, 187, Review 5874 Christy's Appeal, 93 Pa. St., 157, Account 5408 Christy's Appeal, 110 Pa. St., 538, Partition 5798, 5808 Christy's Appeal, 93 Pa. St., 157, Prosecution 6061 Christy's Appeal, 110 Pa. St., 538, Appeals 6179 Chrystal Lake, Village of Nunda v., 79 111., 311, BiUs of Peace 5843 Church i). Bailee, 39 P. L. J. (N. S.), 20, Masters 6039 Church, Brooks v., 135 Pa. St., 137, Appeals 6175 Church, Brown ?;., 33 Pa. St. ,495, Partition 5771 Church V. Church, 8 W. N. , 542, Injunctions 5703 Church IJ. Church, 35 Pa. St., 378, Trusts 5736, 5743 Church, Cushman v., 163 Pa. St., 380, Trusts 5733 Church, Cushman v., 34 W. N., 558, Demurrers 594& Church, Harrison v., 14 W. N., 887, Amendments 5904 Church, Harrison v. , 41 Leg. Int. , 114, Examiners 6013 Church, Kelsey v. , 4 Central Eep. , 99, Partition 5798 Church, Kelsey v., 4 C. P. Rep., 105, Execution 6135 Church, McIIvain v., 3 Woodward, 293, Amendments 5904 Church t;. Moore, 10 Pa. St., 373, Execution 6145 Church V. Ruland, 64 Pa. St., 433, Trusts 5739 Church, Shedwioki)., 160 Pa. St., 57, Costs 6111 Church, Shillingford v., 15 W. N., 487, Examiners 6033 Churcher v. Guernsey, 39 Pa. St. , 84, Specific Performance 5731 Church's Appeal, 103 Pa. St. , 363, Rules 5146, 5161 Church's Appeal, 67 Pa. St. , 514, Injunctions 5686 Church's Appeal, 4 Central Rep. , 95, Partition 5771 Church's Appeal, 108 Pa. St., 363, Masters 6038 Church's Appeal, 103 Pa. St., 363, Costs 6111, 6120 Church's Appeal, 103 Pa. St., 368, Execution 6133 Church's Appeal, 13 Atlan. , 756, Execution 6135 City, American Co. v., 4 Fisher, 189, Injunctions 5650, 5651 City, Bogert v., 37 N. J. Eq., 568, Bills of Peace 5844 City, Brooke v., 84 W. N., 341, Injunctions 5684 City, Brown v. 41 Leg. Int., 242, Injunctions 5707 City, Chandler v., 3 C. C, 407, Injunctions 5707 City V. Crump, 1 Brewster, 820, Injunctions 5639 5676 City, Flanagan v., 8 Phila., 110, Injunctions 5629 City, Gas Co. v., 34 P. L. J., 240, Injunctions 569» TABLE OF CASES. Ixxi Section City V. Gas Trustees, 13W. N., 477, Preparation 5384 City, Oilman v., 3 Wallace, 713, Injunctions 5684 City, Girard v., 7 Wallace (U. S.), 1, Quia Timet 5856 City V. Giraid, 45 Pa. St., 9, Decrees 6095 City V. Griscom, 5 Phila., 533, Injunctions 5671, 5672 City of Hari-isburg's Appeal, 107 Pa. St., 102, Injimctions 5673 City, Hartupee v., 97 Pa. St., 107 ; 131 Pa. St., 535, Account 5396, 5397 City, Hasson v., 67 N. Y., 528, Bills of Peace 5843 City, Heyl v., 31 Leg. Int., 53 ; 10 PhUa., 112, Injunctions 5639 City, Heywood v., 14 N. Y., 534, BiUs of Peace 5842 City, Hostetter v., 107 Pa. St., 419, Account 5396, 5397 City, Hurdu, 41 N. J. 1, Receivers., r 5594 City V. KeUy, 33 Leg. Int., 118, Injunctions 5684 City, Kemble v., 135 Pa. St., 141, Injunctions 5700 City, Kershaw v., 15 W. N., 415, Injunctions 5707 City V. Keyser, 30 Leg. Int., 168, Discovery 5468 City V. Keyser, 10 Phila., 50, Answers 5968 City, Lawrence v., 14 W. N., 421, Injunctions 5707 City, Massey v., 1 W. N., 140, Injunctions 5684 City, Mazet v., 137 Pa. St., 548, Answers 5984 City V. McFadden, 15 W. N., 369, Injunctions 5g76, 5685 City V. McManes, 42 Leg. Int., 160, Rules 5187 City, Myer v., 3 Leg. Rec, 39, Dower 5564 City V. Oil Co., 5 Lane. L. R., 277, Injunctions 5685 City, Paving Co. v., 164 Pa. St., 477, Injunctions 5699, 5707 City V. R. R. Co., 133 Pa. St., 134, Who Must be Joined 5846, 5360 City r. R. R. Co., 133 Pa. St., 134, Preparation 5373 City, R. R. Co. v., 8 Phila., 284, Injunctions 5629 City. R. R. Co. v., 8 Phila., 112, Specific Performance 5724 City V. R. R. Co., 15 W. N., 364, Amendments 5904 Cit3' V. Rwy. Co., 4 Brewster, 14, Corporations 5520 City, Rwy. Co. v., 10 Phila., 37, 70, Injunctions 5629 City V. Rwy. Co., 3 Brewster, 547, Injunctions 5676 City V. Rwy. Co., 8 Phila., 648, Injunctions 5676 City, Rwy. Co. ■«., 2 W. N., 639, Injunctions 5676 City V. Rwy. Co., 7 Luz. Leg. Reg., 35, Injunctions 5677 City V. Rwy. Co., 5 Phila., 248, Injunctions 5701 City, Rwy. Co. v., 30 Leg. Int. , 148, Injunctions 5707 City t). Rwy. Co., 18 W. N., 453, Production 6003, 6004 Ixxii TABLE Oli" CASES. Section City, Rwy. Co. v., 164 Pa. St., 457, Appeals 6164 City V. Raney, 35 W. N., 346 ; 130 Pa. St., 546, Injunctions 5677 City V. Reed, 113 Pa. St., 468, Injunctions 5699 City V. Richmond, 3 Vernon's Rep., 431, Who Must be Joined 5358 City, Sank v., 4 Brews., 133, Injunctions 5684 City, Savage v., 16 Phila., 174, Injunctions 5639 City V. Shaub, 7 Lane. Law R., 340, Injunctions 5676, 5685 City V. Trustees, 13 W. N., 477, Receivers 5572 City V. Trustees, 13 W. N., 568 ; 43 Leg. Int., 160, Examiners 6013 City V. Vandevier, 8 Phila. , 334, Preparation 5384 City V. Wanner, 1 Wilcox, 383, Demurrers 5947 City, Wheeler v., 77 Pa. St., 338, Corporations 5481 City, Wilson I)., 141 Pa. St., 631, Appeals 6176 City, Windrim v., 8 Phila., 361, Injunctions 5639, 5655 City, Wolbert v., 48 Pa. St., 439, Injunctions 5639 City, Woodward v., 4 Kulp, 138, Appeals 6178 City's Appeal, 10 Atl. 787, Injunctions 5676 City's Appeal, 115 Pa. St., 4, Injunctions 5699 City's Appeal, 78 Pa. St., 33, Injunctions 5707 Clabby, Muirhead ■;;., 7 Phila., 345, Specific Performance 5733 Clapp V. Peterson, 104 111., 36, Who may Sue 5311 Clark, Angerstein v. , 3 Dickens, 738 ; 3 Swans. , 147, Wlao Must be Joined. 5360 Clark, Booth v., 17 How. (U. S.), 333, Receivers 5594 Clark, Cartwright v., 4 Metcalf, 104, Cross-bills 5891 Clark, Coburn v., 15 Fed. Rep., 804, Injunctions 5651 Clark, Dekin u., 3 C. P., 106, Dower 55.58 Clark V. Depew, 25 Pa. St. , 509, Answers 5970 Clark V. Ford, 3 Keyes, 370, Dower 5564 Clark V. Ganiz, 21 Minn., 387, Bills of Peace 5842 Clark V. Gibson, 13 W. N., 522, Quia Timet 5855 Clark, Huston v., 3 Dist. Rep., 3, Account 5410 Clark V. Martin, 49 Pa. St. , 389, Injunctions 5686 Clark V. Martin, 49 Pa. St., 389, Decrees 6089 Clark, Newell v. , 15 W. N. , 157, Masters 6039 Clark, Paton v., 156 Pa. St., 49, Account 5391, 5395 Clark V. Periam, 3 Atk., 333, Preparation 5380 Clark, Petriei;., 11 S. & R., 377, Trusts 5738 Clark, Saving Fund v., 11 W. N., 118, Interpleader 5863 Clark V. Seirer, 7 Watts, 107, Specific Performance 5723 TABLE OF CASES. Ixxiu Section <;iark V. Stanley, 10 Pa. St. , 472, Corporations 5525 Clark Co. v. Supply Co.. 3 District Rep., 518, Receivers 5594 Clark V. Wardwell, 55 Maine, 61, Bills of Peace 5843 Clark V. Washington, 145 Pa. St., 567, Corporations 5481 Clarke v. Johnson, 16 Blatch., 495, Injunctions 5651 Clarke v. Periam, 3 Atk. , 333, Preparation 5380 Clark's Appeal, 63 Pa. St., 447, Masters 6025 Clarkson, Kenny i\ . 1 Johns. R. , 385, Accident 5416 Clarkson v. Norton, 31 Leg. Int., 277, JIasters 6034 Clay, Land Co. v., 149 Pa. St., 277, Trusts 5737 Cleavinger v. Reimar, 3 W. & S. , 486, Trusts 5740 Clegg, Paynter v., 9 Phila., 480, Injunctions 5707 Cleghorne's Appeal, 118 Pa. St. , 383, Answers 5968 Cleman's Appeal, 11 Atl., 559, Partition 5807 Clinton, Cholmondeley v., 19 Ves. Jr., 261, Injunctions 5G67 Clippenger. Bumberger i\, 5 "W. & S., 311, Specific Performance 5723 Close's Appeal, 13 Atl. Rep. , 824, Dower 5553 Clothier's Estate, 20 W. N., 379, Review 5875 Clough, Davis v. , 8 Simons, 363, Injunctions 5667 Club, Evans v., 50 Pa. St., 107, Injunctions 5703 Clum V. Brewer, 8 Curt., 506, Injunctions 5651 Clute, R. R. Co. V. , 4 Paige, 884, Intei-pleader 5863 Coal Co., Bailey v., 139 Pa. St., 213, Want of Parties 5061 Coal Co., Bank?;., 140 Pa. 9t., 628, Appeals 6164 Coal Co., Canal Co. v., 31 Pa. St., 131 Decrees 6085 Coal Co. V. Coal Co., 68 Pa. St., 178, Injunctions 5683 Coal Co. , Huntzinger v., 11 Phila. , 609, Who may be Sued 5384 Coal Co., Ketcham v., 88 Ind., 515, Interpleader 5863 Coal Co., Lance v., 40 Leg. Int., 278, Answers 5970 Coal Co., LiUibridge v., 143 Pa. St., 293, Demurrers 5944 Coal Co., Myers v., 3 Kulp, 187, Answers 5978 Coal Co. V. Navigation Co., 2 W. N., 241, Corporations 5481 Coal Co. V. Navigation Co., 53 Pa. St., 91, Corporations 5493 Coal Co., Orne v., 114 Pa. St., 172, Specific Performance 5731, 5733 I Coal Co., Pettebone v., 4 Kulp, 349, Perpetuation 5585 Coal Co. V. Rwy. Co., 9 Phila., 250, Injunctions 5707 Coal Co. V. Sanderson, 118 Pa. St., 136, Injunctions 5677 Coal Co. V. Sohada, 11 W. N., 20, Receivers 5611 Coal Co., Stockton u, 9 W. N., 110, Demurrers 5957 Ixxiv TABLE OF CASES. Section L Coal Co., Thompson v., 7 PhUa., 617, Specific Performance 5730 Coal Co.'s Appeal, 88 Pa. St., 499, Who Must be Joined 5343 Coal Co.'s Appeal, 54 Pa. St., 188, Injunctions 5639 Coal Co.'s Appeal, 5 W. N., 309, Injunctions 5641 Coal Co.'s Appeal, 88 Pa. St., 499, Decrees 6088 Coal Co., Trust Co. v., 37 P. L. J., 431, Answers 5969 Coburn v. Clark, 15 Fed. Eep. , 804, Injunctions 5651 Cochran v. Eldridge, 49 Pa. St. , 365, Injunctions 5648 Cochran v. Gowen, 9 Phila., 399, Execution 6133 Cochran, Warf el v. , 34 Pa. St. , 381, Injunctions 5707 Cockburn v. Thompson, 16 Ves., 336, 338, "Who Must be Joined. . .5341, 5360 Cockburn v. Thompson, 16 Ves. Jr., 335, Want of Parties 5960 Coe, Cummings v., 10 Cal., 530, Accident 5439 CoflEman, Weigley v., 144 Pa. St., 489, Account 5394 Coffman, Weigley v., 144 Pa. St., 489, Decrees 6095 Cohens v. Virginia, 6 Wheaton, 394, Who may be Sued 5336 Colder, Winebrenner v. , 43 Pa. St. , 344, Preparation 5376 Cole, Palmer u, 3 Kulp, 55, Who may Sue 5305 Coleman, Bean v., 44 N. H., 539, Bills of Peace 5848 Coleman v. Coleman, 63 Pa. St.. 353, Account 5393 Coleman v. Coleman, 19 Pa. St. , 100, Partition 5771 Coleman v. Coleman, 3 Pears., 511, Costs 6110 Coleman, Foster v. , 10 Cal., 378, BiUs of Peace 5843 Coleman v. Oil Co., 51 Pa. St., 74, Who may Sue 5311 Coleman u Ross, 46 Pa. St., 180, Answers 5970 Coleman v. Ross, 46 Pa. St., 186, Costs 6111 Coleman's Appeal, 75 Pa. St., 443, Who may be Sued 5334 Coleman's Appeal, 75 Pa. St., 441, Accident 5453 Coles, East India Co. v., 3 Swanst. Ch. Rep., 143 m.. Want of Parties. . 5960 Colgate V. Gold Co., 16 Blatch., 503, Injunctions 5651 CoUaday v. Baird, 4 Phila., 139, Injunctions 5663 CoUey, Cox v. , 1 Dick. , 55, Perpetuation 5535 CoUey, Wilkinson v., 35 W. N., 177, Injunctions 5666 Collier v. Sapp, 49 Ga. , 93, Receivers 5583 Collins, Buckley v., 8 Luz. L. Reg. , 77, Dower 5558 Collins V. Dougherty, 2 Luz. L. Reg. , 194, Dower : 5558 Collins V. Dougherty, 2 Luz. L. Reg., 194, Partition 5800 Collins V. Elevated R. R., 33 W. N., 379, Corporations 5492 CoUins, Loudenback v., 4 Ohio (N. S.), 251, Decrees 6095 TABLE OF CASES. ixx-y Section:. Collins V. Rwy. Co., 33 W. N., 379, Injunctions 567S CoUins, SerreU v., 4 Blatch., 63, Injunctions 5654 CoUins' Estate. 3 W. N., 430, Examiners 6012 ColUnsen (App.), Tucker v., 55 Law Jour. Rep. (Q. B.), 324, Who may Sue 5321 Collom V. Francis, 1 Pars., 527, Disco^'ery 5470, 5472 CoUyer v. CoUyer, 38 Pa. St., 257. Account 5408 Colman, Marshall v., 2 Jac. & Walker Cii. Cases, 2oG, Account 5399 Colton V. Colton, 3 Phila. , 34, Marshalling Assets 5834 Colton V. Thomas, 2 Brewster, 308, Injunctions 5663 Columbian Bank's Estate, 147 Pa. St., 433, Corporations 5494 Columbian Bank, In re, 147 Pa. St., 432, Who may Sue 5311 Columbian Government f. Rothschild, 1 Sim., 94, Specific Performance. 5719 Columbian Government v. RothsohUd, 1 Sim., 108, Demurrers 5944 ColweU V. Hamilton, 10 Watts. 413, Specific Performance 5723 Com' Macclesfield, Titton v., 1 Vern., 364, V/ho may Sue 5316- Commissioners, Hill v. , 1 Pars. , 501, Injunctions 5684 Commissioners v. Long, 1 Pars., 143, Injunctions 5676 Commissioners, Rolston v., 130 U. S., 391, Who may be Sued 5336 Commissioners, Sinclair v., 33 Minn., 404, Bills of Peace 5844 Comm. V. Bank, 3 W. & S., 184, Injunctions 5703 Comm., Bayler v., 40 Pa. St., 37, Specific Performance 5723 Comm. V. Bridge Co., 20 Pa. St., 1S5, Corporations 5493 Comm. V. Burrell, 7 Pa. St., 34, Corporations 5493 Comm. , Crutcher v. , 6 Whar. , 340, Amendments 5014 Comm. r. Dalzell, 153 Pa. St., 317. Corporations 5517 Comm. V. Desilver, 3 Phila., 31, Injunctions 5699 Comm. V. Detwiller, 131 Pa. St., 614, Corporations 5492 Comm. V. Dieffenbach, 3 Gr., 368 ; 5 Phila.. 336, Decrees 6090 Comm. V. Dieffenbach, 3 Gr., 368 ; 5 Phila., 236, Execution 6135 Comm. V. Dow, 6 Luz. Leg. Reg., 319, Injunctions 5713 Comm. V. Elevated R. R. Co., 161 Pa. St., 409, Corporations 5530 Comm. V. Graham, 64 Pa. St., 339, Corporations 5493 Comm. V. Harris, 10 W. N., 10, Injunctions 5676 Comm. 17. Keeper, 23 W. N., 193, Production 6005 Comm. V. Order of Vesta, 33 W. N., 1 : 156 Pa. St., 531, Receivers. . . . 5578 Comm. V. Patterson, 158 Pa. St., 476. Corporations 5517 Comm. V. Perkins, 46 Leg. Int., 67, Production 6005 Comm. V. E. R. Co., 143 Mass., 146, Who may Sue 5311 Ixxvi TABLE OF CASES. Section Comm. V. R. R. Co., 20 Pa.. St., 518, Corporations 5493 Comm. V. R. R. Co., 161 Pa. St., 409, Corporations 5530 Comm. V. R. R. Co., 132 Pa. St., 306, Corporations 5533, 5535 Comm,, R. R. Co. v., 104 Pa. St., 81, Receivers 5614 Comm. V. R. R. Co., 34 Pa. St., 159, Injunctions 5701 Comm. V. Rwy. Co., 34 W. N., 367, Corporations 5493 Comm. V. Rwy. Co., 161 Pa. St., 409, Corporations 5.")20 Comm. V. Reimer, 39 Leg. Int., 108, Injunctions 5676 Comm. V. Rush, 14 Pa. St., 186, Injunctions 5676 Comm. V. Shelby, 13 S. & R., 348, Marshalling Assets 5833 Comm. V. Small, 26 Pa. St., 42, Injunctions 5618 Comm. V. Snowden, 1 Brewster, 219, Injunctions 5712 Comm. V. Supervisors, 29 Pa. St., 121, Injunctions 5099 Comm. V. Young, 11 Phila., 606, Receivers 5613 Comm. V. Young, 33 Leg, Int., 160 ; 11 Phila., 606, Execution C136 Commonwealth's Appeal, 5 Pa. St., 267, Appeals G183 Congregation v. Miles, 4 Watts, 146, Specific Performance 5732 Congregation v. Wallace, 3 Rawle, 100, Marshalling Assets 58-34 Conklin v. Bush, 8 Pa. St., 517, Dower 5560 Conklin v. Kingsley, 1 W. N. , 455, -Injunctions 5641 Conn, Baugher v., 1 C. C, 184, Answers 5970 Conner v. Burd, 1 Leg. Chron., 17, Review 5877 Conner's Appeal, 103 Pa. St. , 357, Injunctions 5700 Conniff v. Doyle, 8 Phila., 630, Trusts 5740 Connolly v. Smith, 21 Wend. , 59, Dower r.,157 Connor v. Simpson, 104 Pa. St. , 440, Account 5397 Conrad v. Conrad, 9 Phila., 510, Review ,^875 Conrad, Keemle v. , 35 Leg. Int. , 262, Accident 5435 Conrad's Estate, 36 Leg. Int., 84, Answers 5984 Conrow v. Barber, 29 W. N. , 551, Examiners , . . 6016 Consequa v. Willings, 1 Peter's C. C, 339, Accident 5416 Con vers v. Vanatta, 34 Pa. St., 357, Specific Perfoi-mance 5733 Conyngham's Appeal, 57 Pa. St. , 474, Account 5392 Cook V. Catohpole, 34 Law J. Rep. (N. S.) (Ch.), 60, Account 5397 Cook V. Ernest, 2 Off. Gaz. , 89, Injunctions 5651 Cook V. Grant, 16 3. & R., 198, Specific Performance 5723 Cooke V. Boynton, 135 Pa. St., 103, Injunctions 5639 Cooke, UpdegrafE v., 8 Phila., 336, Decrees 6090 -Cook's Appeal, 33 W. N. , 499, Decrees 6088 TABLE or CASES. IxxviL Seetiott. Cookson, Duke u., 3 P. Wms., 389, Specific Performance 5720, 5731 Cooledge, Zinsser v., 17 Fed. Eep., 538, Injunctions 5656 Cooper, Isaacs v., 4 Wash. C. C. Rep., 259, Injunctions 5654 Cooper, Magrath v., 10 W. N., 173, Injunctions 5641 Cooper V. Mattheys, 8 Law Rep. (O. S.), 413, Injunctions 5655 Cooper V. R. R. Co., 3 Phila., 268, Injunctions 5655 Cooper, E. R. Co. v., 33 Pa. St., 278, Specific Performance 5733 Cooper, Richards v., 5 Beavan, 304, Who Must be Joined 5339 Cooper, School v., 150 Pa. St., 78, Injunctions 5707 Cooper, School v., 150 Pa. St., 78, Costs 6110 Cooper V. Vanfleet, 2 W. N., 241, Appeals 6179 Copis V. Middleton, 2 Haddock's Chanc. Eep., 410, Who Must be Joined. 5354 Coppin V. Greenless, 38 Ohio, 275, Who may Sue 5311 Coquillard v. Suydam, 8 Blackf., 24, Answers 5964 Corbett v. Corbett, 16 Ves., 410, Who may Sue 5816 Corbin, Ins. Co. v., 34 Leg. Int., 36, Costs 6117 Corbus V. Teed, 69 111., 305, Replications 5995 Corkin v. Blake, 4 Phila., 10, Demurrers 5946 Corn, Marks i). , 11 Fed. Rep. , 900, Injunctions 5655 Corporation v. Wilson, 13 Ves. Jr., 278, Account 5391 Corson v. Mulvany, 49 Pa. St., 88, Specific Performance 5720, 5733 Cortelyou v. Ott, 1 Northam., 170; 103 Pa. St., 576, Specific Perfor- mance 5720 Cortelyou, Titus v., 1 Barb., 444, Production 6008 Cortelyou's Appeal, 102 Pa. St. , 576, Specific Performance 5733 Coster, Murray v., 20 Johns., 576, Dower 5564 Coster, Shaw v., 8 Paige Chanc, 339, Interpleader 5865 Cote V. Murphy, 159 Pa. St., 421, Injunctions 5682 Cottrell V. Warren, 18 Pa. St., 488, Discovery 5463 Couch V. Sutton, 1 Gr., 114, Perpetuation 5541 Couch V. Sutton, 1 Gr., 114, Quia Timet 5857 County, Greedup v., 30 Ark., 101, Bills of Peace ■ 5842 County, Hagaman v., 19 Kansas, 394, Bills of Peace 5846 County, Kirby v., 134 Pa. St., 109, Masters 6034 County, Land Co. v., 7 Neb., 253, Bills of Peace 5843 County, E. R. Co. v., 7 Neb., 487, Bills of Peace 5846 County, Schwenkv., 36 Pa. St., 281, Appeals ._ 6164 County, State v., 51 Mo., 350, Bills of Peace 5844 Coursin's Appeal, 79 Pa. St., 220, Revivor 5926 Ixxviii TABLE OF CASES. Section Covell, Rudolph v., 5 Iowa, 525, Specific Performance 5721 Coveny v. Athill, 1 Dick., 355, Perpetuation 5540 Cowan, Stephens v., W., 511, Amendments 5914 Cowan's Appeal, 16 Atlan., 28, Partition 5780 Cowan's Appeal, 16 Atlan., 28, Amendments 5904 Cowdon, Bishop v., 5 Mont., 151, Who Must be Joined 5346 Cowdon, Bishop v. , 5 Mont. , 151, Preparation 5372, 5384 Cowdon, Bishop v., 6 Mont., 201, Replications 5993 ■Cowden's Estate, 1 Pa. St., 267, Marshalling Assets 5836, 5838 Cox V. Colley, 1 Dick. , 55, Perpetuation 5535 Cox V. Cox, 20 Pa. St., 875, Specific Performance 5721 Cox V. R. R. Co., 10 W. N., 552, Injunctions 5676 Coxe V. Smith, 4 Johns. Chanc. Rep., 371, Partition 5771, 5775 Coxe's Appeal, 120 Pa. St., 98, Appeals 6183 Cox's Appeal, 11 W. N., 571, Injunctions 5676 Cozine v. Graham, 2 Paige, 177, Specifip Performance 5726 Cragg 1). Riggs, 26 Hun, 89, Who may Sue 5311 Craig, Horner v., 3 W. N., 11, Injunctions 5676 Craighead, Wright v., 4 W. N., 51, Specific Performance 5723 Cram, Waring v. , 1 Pars. , 516, Injunctions 5639, 5655 Cramp's Appeal, 81 Pa. St., 90, Review 5877 Crane v. McDonald, 23 N. E. Rep., 991, Interpleader 5863 Crans, UpdegrafE v., 47 Pa. St., 103, Corporations 5492 Crans, Updegraff v., 47 Pa. St., 103, Injunctions 5707 Craven, Rodenhausen v., 141 Pa. St., 546, Injunctions 5676 Crawford v. Bank, 35 W. N., 183, Amendments 5897 Crawford, DalzeU v., 1 Pars., 37, Specific Performance 5720, 5721, 5723 Crawford, Gehres v., 9 Atl., 508, Accident 5452 •Crawford v. Shriver, 139 Pa. St., 289, Account 5410, 5412 Crawford v. Thompson, 142 Pa. St., 551, Trusts 5736 Crawford Co. v. Bank, 85 W. N., 133, Want of Parties 5961 Cremer's Estate, 7 W. N., 544, Review 5874 Cressett v. Mytton,'3 Bro. C. C, 481 ; 1 Ves. Jr., 449, Preparation of Bill. 5388 Cresswell, Bugger v., 12 Atl., 839, Accident 5452 Cressy, Hildyardw., 3 Atl., 308, Amendments 5904 Creuze v. Hunter, 2 Ves. Jr., 165, Trusts 5752 Crews V. Burcjiam, 1 Black (IT. S.) Rep., 352, Quia Timet 5855 Crispe, Lady Cranborne v., Finch, 105, Who Must be joined, 5358 'Crispin, McGarry v., 3 Clark, 25, Who may Sue 5303 TABLE OF CASES. Ixxix Section ■Crist V. Morris, 3 W. N., 620, Injunctions 0700 Croft, Justices v., 18 Ga., 473, Specific Performance 5720 Crofts V. Oldfield, 3 Swanston, 278 v . , Execution 6141 Crombie v. Order of Solon. 157 Pa. St.. 5,SR. Receivers 5580 Crombie v. Order of Solon, 157 Pa. St., 'tSS, Answers 5970 Crommie, Desbrow i\, Bunbury's Exc. Eep. (Eng.), *273, Execution.. 0140 Cross V. De Valle. 1 Wallace, 1, Bills of Peace 5848 Cross V. De Valle, 1 Wallace, 5, Quia Timet 5856 Cross V. De Valle, 1 Wallace. 1, Cross-bills 5891 Cross V. Livermore, 9 Fed. Rep., 607. Injunctions 5655 Crotzer, Tritt v.. 13 Pa. St., 451, Trusts 5748 Crow V. Tyrell, 2 Mad., 397, Amendments 5904 CroweU i'. Harlow, 18 Off. Gaz., 466, Injunctions .' 5354, 5655 Crowell V. James, 32 Leg. Int., 420 ; 2 W. N., 176, Masters 6034 Crowfoot V. Mander, 9 Sim., 396, Revivor 5926 Crucible Co. v. Guggenheim, 2 Brewster, 321, Injunctions 5662 Crump, City (-•., 1 Brewster, 320, Injunctions 5639, 5676 Crutcher v. Comni. , 6 Whar. , 340, Amendments 5914 Cud I'. Rutter, 1 P. Wms., 570. Specific Performance 5720 Cuff V. Platell, 4 Russ. , 242, Demurrers 5944 OuUen V. Duke of Queensberry, 1 Bro. C. C, *101, and 1 Bro. P. C, 396, Who Must be Joined 5353 Gulp's Estate, 26 W. N., 78, Partition 5823 Cumberland, Duchess of, Symonds r. , 2 Cox. 411, Amendments 5912 •Cum.berland Valley R. R. Co.'s Appeal, 62 Pa. St., 218, Corporations.. 5492 ■Cumberland Valley R. R. Co.'s Appeal, 62 Pa. St., 318, Injunctions... 5630 Cummings v. Coe, 10 Cal. , 530, Accident 5439 Cummings, Hamilton v., 1 Johns. Ch., 517, Quia Timet 5855 Cummings v. Sheble, 1 Phila., 492, Injunctions 5707 Cummings, Smith v., 3 Pars. , 93, Injunctions 5639 Cummings, Smith v., 1 Fish., 153, Injunctions 5655 ■Cummings' Appeal, 67 Pa. St. , 404, Accident 5431 Cummins v. Hurlbutt. 93 Pa. St., 165, Accident 5447 Cunningham, Gallatian v., 8 Cowen (N. Y.), 361, Cross-bills 5891 Cunningham v. R. E. Co., 109 U. S., 446, Who may be Sued 5328 Cunningham's Appeal, 2 Pitts., 177, Revie-w 5375 Cunningham's Estate, 38 P. L. J. (O. S.), 129, Dower 5552 Cuiiyngham v. Ctmyngham, Amb. , 91, Rehearing 6102 Curran v. Arkansas, 15 How., 304, Who may be Sued 5326 IxXX TABLE or CASES. Section Curren's Estate, 1 W. N., 361, Prosecution 6060 Currier, Hubbell, v. , 10 Allen, 333, Quia Timet 5856 Curtis, Brownell «. , 10 Paige Ch. (N. Y.), 210, Demurrers 5940 Curtis V. Hale, 1 W. N., 371, Eeceivers 5580 Cushman v. Church, 162 Pa. St., 280, Trusts 5733 Cushman v. Church, 34 W. N., 558, Demurrers 5946 Czarniecki's Appeal, 35 P. L. J. , 153, Injunctions. 5676 D. Da Costa v. Da Costa, 3 P. Wms., 140, Who may Sue 5295 Dabney, Barings v., 19 Wallace, 1, Who may be Sued 5336 Dakin v. Union Pac. R. R. Co., 5 Fed. Rep., 665, Accident 5454 Daley, Hinds v., 3 Dist. Rep., 59, Masters 6035 Dalton V. Bateson, 12 C. C, 544, Who may Sue 5304 Daly, Kennedy v., 1 Sch. & Lef., 355, Review 5881 Dalzell, Comm. v., 152 Pa. St., 217, Corporations 5517 Dalzell V. Crawford, 1 Pars., 37, Specific Performance. . . . 5730, 5721, 5723 Damjjf's Appeal, 106 Pa. St., 73, Account 5408 Dana v. Dana, 3 Law Times (N. S.), 53, Partition 5769 Danhouse's Estate, 130 Pa. St., 256, Dower 5558 Daniel, In re, 28 W. N., 198, Preparation of Bill 5367 Daniels, Morgan v., 153 U. S., 133, Injunctions 5652 Daniels, Stephan v., 27 Ohio State, 527, Bills of Peace 5842 Daniels, Young v., 2 Iowa, 126, Specific Performance 5731 Dankel v. Hunter, 61 Pa. St., 382, Specific Performance 5733 Danzeisens Appeal, 73 Pa. St., 65, Decrees 6086 Darling v. Transportation Co., 2 Kulp, 142, Receivers 5610 Darlington, Napier v. , 70 Pa. St. , 64, Specific Performance 5733 Darlington's Appeal, 86 Pa. St., 513, Amendments 5904 Darragh, Barnet v., 1 T. & H. Pr., 134, Answers 5978 Darrrington v. Bank of Alabama, 13 How., 12, Who may be Sued 5336- Dashwood v. Lord Bulkeley, 10 Ves., 236, Rehearing 6105 Datesman's Appeal, 77 Pa. St., 343, Marshalling Assets 5838 Datz u. Phillips, 36 W. N., 513; 137 Pa. St., 303, Specific Perform- ance 6731, 572,3 Datz V. Phillips, 46 Leg. Int., 350 ; 26 W. N., 512, Cross-bills 5891 Dauchy v. Pond, 9 Watts, 49, Specific Performance 5731 Davenport v. R. R. Co., 166 Pa. St., 480, Production 6007 TABLE OF CASES. Ixxxi Section Davidson v. Little, 22 Pa. St., 245, Accident 5431 Davidson, Rogers v., 4 Penny., 473, Account 5396 Davies, Catherall v., 1 Giff., 326, Interpleader ' 5866 Davies v. Clough, 8 Simons, 263,. Injunctions 5667 Davis V. AUen, 1 Green Ch., 288, Preparation of BiU 5372 Davis, Boze v. , 14 Tex. , 331, Specific Performance 5731 Davis, Breneiser v., 141 Pa. St., 85, Accidents 5447 Davis, Dinsmoret;., 7 W. N., 395, Costs 6110 Davis V. Gray, 16 WaUace, 203, Who may be Sued 5326 Davis V. Gray, 16 WaUace, 203, Receivers 5569 Davis, Large v., 13 W. N., 33, Masters 6038 Davis, Macclesfield v., 3 Ves. & B., 16, Specific Performance 5720, 5731 Davis, McMurray v., 1 W. N., 142, Costs 6114 Davis, Sewage Co. v., 8 Pliila., 625, Injunctions 5629 DaviT V. Powder Co. , 160 Pa. St. , 482, Injunctions 5677 Dawson v. Dawson, 1 Atk., 1, Preparation 5888 Dawson v. Prince, 2 DeG. & J., 43, Rehearing 6105 Dawson, Whaley v., 3 Sch. & Lef., 367, Preparation of BiU 5384 Day, Blennerhassett v., 2 BaU & B., 118, Trusts 5750 Day, Kerr v., 14 Pa. St., 113, Specific Performance 5733 Day, Olinv., 3 C. C, 457, Answers 5964 Day, Pynchon v., 118 lU., 9, Production 6008 De Baum, Thomas v., 1 McCarter Chanc. Cas. (N. J.), 37, Execution. . 6135 De Baun v. New York, 16 Barbour, 393, BiUs of Peace. . . .' 5842 De Forest, Beatty v. , 13 C. E. Green, 483, Execution 6135 DeHaas, Quigley u , 83 Pa. St., 267, Account 5396 De Haber v. Queen of Portugal, 17 Adol. & El., 307. Who may be Sued 5335 De Haven's Appeal, 44 Leg. Int., 38, Amendments 5904 De La Torre v. Bernales, 1 How. Sup. to Ves. Jr. Rep., 149, Who may be Sued 5335 De La Ton-e v- Bernales, 4 Mad., 396, Amendments 5913 De Turk, Winters v., 25 W. N., 511, Dower 5564 De VaUe, Cross v., 1 WaUace (U. S.), 1, Bills of Peace 5848 De VaUe, Cross v., 1 Wallace (U. S.), 5, Quia Timet 5856 De VaUe, Cross v., 1 WaUace (U. S.), 1, Cross-biUs 5891 De Zouche v. Garrison, 140 Pa. St., 430, Interpleader 5863 Deacon, Foster v., 6 Maddock's Chanc. Cases, 59, Who Must be Joined. 5358 Dean, Detroit v., 106 U. S., 537, Corporations 5496 Dean, George v., 47 Tex., 73, BiUs of Peace 5842 6 Ixxxii TABLE OP CASES. Section. Dean v. Madison, 9 Wise. , 402, Quia Timet 5855 Dear, French v., 5 Ves., 547, Demurrers 5944 Dear v. Sworder, 4 Law Eep. (Chanc. Div.), 476, Cross-bills 5886 Deare v. Atty.-Genl., 1 Younge & C, 197, Demurrers 5940 Deoh's Appeal, 57 Pa. St., 467, Specific Performance 5730, 5733 Decorative Co., In re, 11 C. C, 201, Who may Sue 5304 Dehart, Frantzt;., 1 C. C, 4, Who may Sue 5303 Dekin v. Clark, 3 C. P., 106, Dower 5558 Del Eio, Jones v., 1 Turner & RusseU, 297, Who Must be Joined 5346 Delbert's Appeal, 4 W. N., 294, Who Must be Joined 5843 Delbert's Appeal, 4 W. N. , 294, Preparation 5373 Delondre v. Shaw, 2 Sim., 337, Demurrers 5944 Denn v. Russell, 1 Dick. , 427, Who may Sue 5318, 5331 Dennet, Burt v., 2 Brown's Chanc. Cases, 335, Who Must be Joined. .. 5348 Dennison v. Goehring, 7 Pa. St., 175, Trusts 5734 Dennison v. Goehring, 6 Pa. St. , 403, Review 5875 Dennison, State v. , 24 Howard, 66, Who may be Sued 5335 Dennison's Appeal, 1 Pa. St., 201, Marshalling Assets 5834 Denton, Waldo v. , 135 Pa. St. . 181, Injunctions 5647 Depew, Clark v., 25 Pa. St. , 509, Answers 5970 Desbrow v. Crommie, Busbury's Exc. Rep. (Eng.), *373, Execution. . . 6140 Deschamps v. Rwy . Co. , 3 Phila. , 279, Injunctions 5639 Desh's Appeal, 43 Leg. Int. , 161 , Appeals 6164 DesUver, Comm. v., 3 Phila., 31, Injunctions 5699 Detroit v. Dean, 106 U. S., 537, Corporations 5496 Detwiller, Comm. v., 131 Pa. St., 614, Corporations 5492 Devine v. Mundell, 13 W. N., 367, Masters 6038 Devlin, Patton v., 2 Phila., 103, Specific Performance 5730 Devling v. Little, 36 Pa. St., 503, Specific Performance 5721 Devonsher v. Newenham, 3 Sch. & Lef., 199, Bills of Peace 5841 Devonsher v. Newenham, 3 Sch. & Lef., 199, Amendments 5913 Devor's Appeal, 13 Pa. St., 413, Marshalling Assets 5836 Dewitt, Beddow v., 43 Pa. St., 326, Specific Performance 5721 Dewitt, Beddow v., 43 Pa. St., 326, Marshalling Assets 5836 Dexter v. Arnold, 5 Mason, 303, Review 5877, 5878 Dias V. Merle, 3 Paige, 494, Production 6008 :Dibrell, Blaokwell v. , 3 Hughes, 151, Injunctions 5661 Dick V. Ireland, 130 Pa. St., 299, Accident, 5452 TDioken, Hays v., 28 P. L. J., 180, Amendments 5904 TABLE OF CASES. Ixxxiii Section Dickenson, Lady Markhamr.. 1 Yes. Jr., 30, Amendments 5912 Dickerson v. Chrisman, 28 Mo., 1G4, Specific Performance 5721 Dickinson, Longr., 10 Phila., 108, Injunctions 5684 Dickinson, Long v., 31 Leg. Int., 36, Injmictions 5707 Dick's Appeal, 106 Pa. St., 5S9, Amendments 5907 Diefenderfer v. Eshleman, 113 Pa. St., 305, Dower 5550, 5.-)52 Dieffenbaoh, Comm. v., 3 Gr., 368 ; 5 Pliila., 236, Decrees 6090 Dieffenbach, Comm. v., 3 Gr., 368 ; 5 Pliila., 236, Execution 6135 Dietrich, Henry v., 84 Pa. St., 2SG, Trusts 5733 Dietrich v. Tyson, 4 Phila., 352, Trusts 5733 Dill V. Haugh, 9 W. N., 417, Injunctions 5677 DUler V. Rosenthal, 6 Luz. Leg. Peg., 33, Injunctions 5639 DiUon V. States, 11 W. N., 18, Injunctions 5676 DiUy V. Doig, 2 Ves. Jr., 486, Preparation of Bill 5384 Dilworth's Appeal, 91 Pa. St. , 250, Injunctions 5677 Dinsmore?). Davis, 7 W. N., 295, Costs 6110 Divers, Fillman^-., 31 Pa. St., 429, Trusts 5736 Dix, Robinson v. , 18 \V. Va. , 528, Want of Parties 5961 Dixon, Adderley v., 1 Sim. & L., 607, Specific Performance 5720 Dixon V. Oliver, 5 AVatts, 509, Specific Performance 5731 Dock V. Jute Co., 167 Pa. St., 370, Who may Sue 5311 Dodge V. Card, 1 Bond. 393, Injunctions 5655 Dodge, Hall v., 38 N. li., 346, Decrees 6095 Dodge V. Woolsey, 18 How. , 331, Injunctions 5684 Doe V. Doe, 37 N. H., 268, Bills of Peace 5848 Dohnert, Dungan v., 11 W. N., 330 n.. Specific Performance 5723 Dohnert's Appeal, 64 Pa. St., 311, Specific Performance 5731 Dohnert's Appeal, 64 Pa. St. , 311, Interpleader 5862 Doig, Dilly v., 3 Ves. Jr. , 486, Preparation of Bill 5384 Donnelly's Estate, 3 Dist. Rep., 381, Specific Performance 5721 Doolittle V. Bamitz, 1 Phila., 574, Injunctions 5641 Dore, James v., 2 Dick., 788, Who may Sue 5316 Doi-man, Hook v., 1 Sim. & Stu., 227, Amendments 5913 Dorman, Hook v., 1 Sim. & Stu., 227, Demurrers 5944 Dorman's Estate, 2 W. N., 532, Specific Performance 5720 Dorner, Saakc v., 3 Dist. Rep., 170, Account 5410 Dougherty, CoUins v., 3 Luz. Leg. Reg., 194, Dower 5558 Dougherty, CoUins v., 2 Luz. Leg. Reg., 194, Partition 5800 Dougherty, Porter v., 25 Pa. St., 405, Specific Performance 5721 Ixxxiv TABLE OP CASES. Section Dougherty's Appeal, 1 W. N., 593, Amendments 5904, 5907 Doughty V. West, 2 Fisher's Pat. Cases, 553, Injunctions 5650 Douglass, Edgett v., 144 Pa. St., 95 ; 38 "W. N., 469, Demurrers 5944 Douglass, Gas Co. v. , 130 Pa. St. , 283, Preparation 5373 Douglass V. HarrisviUe, 9 W. Va. ,162, Bills of Peace 5842 Douglass V. Herold, 34 Leg. Int., 115, Specific Performance 5722 bow, Comm. v. , 6 Luz. Leg. Reg. , 219, Injunctions' 5712 Dowding, Berryhill v., 8 Watts, 313, Appeals 6183 Downs, James v., 18 Ves., 522, Amendments 5912 Dows, Blaisdell v., 4 B. & A., 499, Injunctions 5651 Dows V. Chicago, 11 WaUace, 108, Bills of Peace 5842 Doyle, Conniff v., 8 Phila., 630, Trusts 5740 Doyle, Mullen v., 147 Pa. St., 512, Trusts 5750 Doylestown, Hough ■;;., 4 Brewster, 333, Injunctions 5707 Drake v. Lacoe, 157 Pa. St., 18, Account 5394 Drake v. Lacoe, 157 Pa. St., 17, Demurrers 5944 Draper, Mitchell v., 9 Ves. Jr., 208, Execution 6140 Drechman v. Lauer, 10 W. N. , 536, Accident 5448 Drexel, Marvine v. , 33 Leg. Int. , 284 ; 1 W. N. , 323, Costs 6117 Dreydoppel v. Young, 37 Leg. Int., 397, Injunctions 5639 Drhew v. Altoona, 121 Pa. St., 401, Account 5396 Drinkhouse's Estate, 29 W. X.. 35 ; 31 \V. K., £8, Dower 5553 Drinkhouse's Estate, 1 Dist. Eep., 93, Exaiiiiaers 6022 Droveyard Co.'s Appeal, 123 Pa. St., 250, Injunctions 5647 Droveyard Co.'s Appeal, 123 Pa. St., 250, Appeals 6183 Drum V. Wartman, 6 Phila. , 45, Dower 5566 Du Bois V. Baum, 46 Pa. St., 537, Specific Performance 5721 Duchess of Buckinghamshire, Shefiield v., 1 Atk., 628, Who may Sue 5298 Duchess of Cumberland, Symonds v., 3 Cox, 411, Amendments 5912 Duchess of Kingston's Case, 3 Smith's Lead. Cases, *"784, Decrees 6095 Duchess of New Castle, Lord Pelham v. , 3 Swanston, 390 n. , Execution. 6140 Duer, Bond v., 3 Phila., 307, Answers 5968 Duff V. Calkins, 35 OS. Gaz., 601, Injunctions 5651 Duff V. McDonough, 155 Pa. St. , 10, Execution 6141 Duff, O'Neill v., 33 Leg. Int., 408, Examiners 6033 Duff, O'Neill v., 11 Phila., 244, Masters 6038 Duff V. Wilson, 73 Pa. St., 443, Trusts 5741 Dufaeld V. Hue, 36 W. N., 387, Injunctions 5673 TABLE OF CASES. IxXXV Section Duffield, McGheehen v., 5 Pa. St., 497, Account 5396 Duke V. Cookson, 3 P. Wms., 389, Specific Performance 5720, 5721 Duke of Beaufort, Maule v., 1 Russ. Rep., 849, Who Mnst be Joined. . 5354 Duke of Brunswick v. King of Hanover, 2 H. L. Cases, 1, Who may- be Sued 5324, 5325 Duke of Northumberland, Ward v., 2 Anst., 469, Preparation, 5384 Duke of Queensberry, CuUen v., 1 Bro. C. C, *101, and 1 Bro. P. C, 396, Who Must be Joined 5353 Duke of Rutland, Welby v., 6 Bro. Pari. Cas., 575, BUls of Peace. . . . 5841 Dulaney, Nail Co. v., 140 Pa. St., 205, Injunctions 5661 DuU's Appeal, 113 Pa. St., 510, Quia Timet 5855 Duncan v. Iron Works, 26 W. N., 479, Injunctions 5673 Dundas v. Biddle, 2 Pa. St., 160, Specific Performance 5720 Dungan v. Dohnert, 11 W. N., 330 n., Specific Performance 5723 Dungey v. Angove, 3 Bro. C. C, 36, Interpleader 5862, 5863, 5864, 5866 Dunlap V. RiddeU, 7 W. N., 466, Receivers 5583 Dunn, Perine v., 4 Johns. Chanc, 140, Decrees 6095 Dunn, R. R. Co. v., 51 Ala., 128, Bills of Peace 5844 Dunn, Volroth v., 7 Luz. Leg. Reg., 223, Injunctions 5699 Dunner, Wood v., 3 Mason, 311, Who may Sue 5311 Dunning, Evans v., 3 PhUa., 410, Demurrers 5947 Dunsany, Latouche v., 1 Sch. & Lef., 137, Cross-biUs 5891 Duparquet v. Brodhead, 1 Northam., 48, Who may Sue 5303 Dapont, Shanks t;., 3 Peters, 242, Dower 5557 Durant v. Essex Co., 7 Wallace, 107, Decrees 6095 Durant, Hazard v., 11 R. I., 195, Who may Sue 5310 Durborrow's Appeal, 87 Pa. St., 237, Costs 6110 Durdant v. Redman, 1 Vern.. 78, Amendments 5913 Durpee v. Power Co., 114 Mass., 37, Who may Sue 5311 Dusenbury, Sheare v., 13 Gray, 292, Decrees 6095 Dutton, Shober v., 6 PhUa., 185, Specific Performance 5723 Dwight, Mays v., 83 Pa. St., 462, Accident 5423 DwineU, Godfrey v., 40 Me., 94, Specific Performance 5731 Dyer's Appeal, 107 Pa. St., 446, Decrees 6087 Dyott's Estate, 2 W. & S., 463, Marshalling Assets 5837 E. E. I. Company, Wych v., 3 P. Wms., 309, Trusts 5749 Ixxxvi TABLE OF CASES. Section Eames, McGuire v., 15 Blatch., 313, Injunctions 5655 Earl of Egmont, Newton v., 5 Simons' Rep., 130, Who Must be Joined 5B54 Earl of Ferrers, Shirley v.,BP. Wms., 77, Perpetuation 5538 Earl of Portsmouth v. Fellows, 5 Maddock, 450, Preparation 5381 Barley's Appeal, 121 Pa. St., 496, Injunctions 5673 Earp's Estate, 6 PhUa., 138, Review 5875 Earth Closet Co. v. Fenner. 5 Fish., 15, Injunctions 5656 East AngUan Co., Russell v., 3 Macnaghten & Gordon, 104, Execution. 6186 East India Co. v. Coles, 3 Swanst. Ch. Rep., 142 »!.,Want of Parties. . . 5960 Eaton, Winans v., 1 Fish., 181, Injunctions 5655 Eaton's Appeal, 66 Pa. St., 483, Answers 5970 Eaton's Appeal, 66 Pa. St., 483, Masters 6027 Eberly v. QioS, 31 Pa. St., 351, Answers 597a Eberts v. Eberts, 55 Pa. St., 110, Trusts 5743 Eby, Pratt v. . 67 Pa. St., 396, Specific Performance 5733 Eby's Estate, 1 Lane., 129, Review 5874 Echert v. Ferst. 10 Phila., 514, Injunctions 5678 Eckersley, Hilton v., 33 Eng. Law & Eq., 198, Injunctions 5683 Eckert v. Rwy. Co., 37 P. L. J., 203, Injunctions 5676 Eokfeldt's Appeal, 13 Pa. St., 171, Appeals 6179 Eckhart i'. Gerlach, 35 Leg. Int., 314, Injunctions 5666 Eokman v. Eokman, 55 Pa. St. . 276, Accident 5434 Ector, Carey v., 7 Ga., 99, Answers 5964 Edgar, Whitbeok v., 2 Barb., Ch. 100, Cross-bills 5890 Edgerton, Abbott v., 53 Ind., 196, Bills of Peace 5845 Edgett V. Douglass, 144 Pa. St., 95 : 28 W. N., 469, Demurrers 5944 Edinger, Arguello v., 10 Cal., 156, Specific Performance 5721 Edmond's Appeal, 59 Pa. St., 323, Accident 5434, 5447 Edmund, Lewis v., 6 Sim., 251, Preparation 5384 Edsell V. Buchanan, 4 Bro. C. C, 254, Demurrers 5941 Education Society v. Bressier, 33 Leg. Int., 204, Specific Performance. 5733 Edwards v. Atkinson, 14 Tex. , 373, Specific Performance 5731 Edwards w. Brightley, 11 Cent. Rep., 184, Preparation 5373 Edwards, HoUis v., 1 Vem. Ch.. 159, Specific Performance 5720 Edwards, Hyde v., 13 Beav., 160 ; 13 Jur., 757, Specific Performance. 5736 Edwards' Appeal, 11 Cent. , 184, Prosecution 6061 Ege, Ogle v., 4 Wash.. .5W1, Injunctions 5655 Ehrardt v. Boaro, 113 U. S., 538, Injunctions 5673 TABLE OF CASES. Ixxxvii Section Eichert. Shaffer v. , 133 Pa. St. , 285, Amendments 5914 Einhorn, Bachman i;., 5 W. N., 350, Account 5403 Elder v. Bogardus, 1 Edmonds' Select Cases (N. Y.), 110, Production.. 6008 Elder, Reel v., 63 Pa. St., 308, Dower 5553, 5559 Elder v. Robinson, 19 Pa. St., 864, Specific Performance 5723 Eldredge, Jenkins v.. 3 Story C. C, 306, Rehearing 6099, 6102 Eldridge, Cochran v., 49 Pa. St., 365, Injunctions 5648 Eldridge, HUI v.. 2 Johns. Chanc, 381, Bills of Peace 5840 Eldridge r. Smith, 34 Vermont, 484, Quia Timet 5855 Election of Receiver of Taxes, 4 Dist. Rep., 71, Injunctions 5707 Electric Co.'s Appeal, 114 Pa. St., 574, Specific Performance 5733 Elevated R. R. Cases, 161 Pa. St., 396, 409, Injunctions 5676, 5701 Elevated R. R. Co., Comm. v.. 161 Pa. St., 409, Corporations 5520 Elevated R. E. , Potts r. , 31 W. N. , 390, Injunctions 5676 Ele.v's Appeal, 70 Pa. St., 311, Who may be Sued 5334 Elizabeth, Hurd v. , 41 N. J., 1, Receivers 5594 Elkins, Young v. , 38 Leg. Int. , 304, Injunctions 5677 EUames, Hardmann v., 3 Myhie & Keen, 757, Production 6004, 6006 EUice r. Roupell, 32 Beav., 308, Perpetuation 5537, 5541 EUinger, Wasserman v., 3 "\V. N., 424, Marshalling Assets 58.S4 EUiot, McMorris v., 8 Price, 674, Preparation 5383 Elliot V. Van Voorst, 3 Wallace Jr. Rep.. 299, Who may be Sued 5326 EUiot's Appeal, 3 W. & S., 449, Marshalling Assets 5833 Ellis, Calket v., 10 Phila., 375, Account 5391 Ellis V. Ellis, 1 Dev. Eq. (N. C), 180, 398, Specific Performance 5731 EUison V. Light Co., 19 W. N., 131. Who may Sue 5803 EUmaker, Thomas v., 1 Pars. , 98, Corporations 5537 EUmaker, Thomas v., 1 Pars., 98, Injunctions 5703 EUmaker, Thomas v., 1 Pars., 98, Answers 5983, 5984 EUmaker, Thomas v., 1 Pars., 98, Decrees 6085, 6086 Ellwand v. McDonnell, 8 Beavan, 14, Production 6004 Ehnendorf, Gouvemeur v., 4 Johns. Chanc, 357, Cross-biUs 5891 Elmer v. Hall, 148 Pa. St., 345, Account 5391 Elridge v. Hill, 2 Johns. Chanc, 281, Bills of Peace 5840 Eltonhead, Anderson v., 26 W. N., 95, Corporations 5516 Emerson v. Schoonmaker, 135 Pa. St., 437, Amendments 5914 Emerson's Appeal, 95 Pa. St., 258, Receivers 5583 English, Nichols v., 3 Brewster, 260, Examiners 60C2 English, Porter v., 1 Phila., 85, Costs 6110, 6114 Ixxxviii TABLE OF CASES. Section Ennis, Fries v., 8 C. C, 113, Examiners 6019 Erie's Appeal, 91 Pa. St., 398, Injunctions 5684 Ernest, Cook v., 2 Off. Gaz., 89, Injunctions 5651 Eshleman, Diefenderfer v., 113 Pa. St., 305, Dower 5550, 5552 Eshleman v. Power Co., 1 Lane. L. R., 36, Injunctions 5639 Essex Co., Durant v., 7 Wallace, 107, Decrees 6095 Estabrook, Hey v., 15 W. N., 333, Injunctions 5707 Estates — See Proper Names, Esterley, Hagenman v., 1 Dist. Eep., 704, Dower 5550 Etnier v. Shope, 43 Pa. St., 110, Account 5397 Etting.D. Levy, 10 Phila., 139, Discovery 5473 Evans, Benner v., 8 P. & W., 454, Dower 5559 Evans, Brace v., 6 C. C, 19, Who may Sue 5333 Evans, Brace v., 35 P. L. J. , 399, Injunctions 5683 Evans, Brace v., 36 P. L. J., 88 ; 6 C. C, 19, Costs 6114 Evans V. Club, 50 Pa. St., 107, Injunctions 5703 Evans v. Dunning, 3 Phila. , 410, Demurrers 5947 Evans v. Evans, 1 Phila., 113, Dower 5558 Evans v. Evans, 39 Pa. St., 377, Dower 5559 Evans v. Fertilizing Co., 160 Pa. St., 309, Injunctions 5676 Evans, Fisher u., 1 P. A., Browne, 256, Who may Sue 5804 Evans v. Gage, 1 111. App., 303, Bills of Peace 5844 Evans v. Goodwin, 183 Pa. St., 136, Account 5394 Evans v. Goodwin, 183 Pa. St. , 136, Demurrers 5944 Evans v. Kittrell, 88 Ala. (N. S.), 449, Specific Performance 5730 Evans, R. R. Co. v., 6 Gray, 35, Specific Performance 5731 Evans v. Ross, 107 Pa. St., 331, Dower ,5352 Evans, Slack v., 7 Price, 378 n., Preparation 5383. Evans, Tappan v., 11 N. H., 337, Quia Timet 5855 Evans v. Thibault, 3 Miles, 351 , Marshalling Assets 5836 Evans v. Webb, 1 Yeates, 434, Dower 5561 Evans' Estate, 150 Pa. St., 313, Marshalling Assets 5833 Everard v. Hess, 4 Kulp, 243, Dower 5552 Everhart, Pettebone v. , 4 Kulp, 353, Perpetuation 5586 Everhart, Pettebone v., 4 Kulp, 858, Answers 5979 Everhart, Shoemaker v. , 4 Kulp, 183, Partition 5833 Everhart's Appeal, 106 Pa. St., 349, Amendments 5911 Everitt V. Hale, 39 Leg. Int., 158, Trusts 5741 Evitt i\ Price, 1 Simons, 483, Injunctions 5667 TABLE OP CASES. Ixxxix Section ■Ewing V. Machine Co., 9 W. N., 373, Injunctions 5666 -Ewing, Smith v., 31 W. N., 198, Answers 5970 Exchange, Brewing Co. v., 13 W. N., 460, Amendments 5905 Ex Parte— See Proper Names. Exposition Society, Eees i;., 3 C. C, 385, Injunctions 5701 Eynn, Wolf «., 5 Kulp, 5, Demurrers 5947 Eyster's Appeal, 65 Pa. St., 478, Injunctions 5647 P. Fackler v. Worth, 2 Beasley (N. J.), 395, Execution 6135 Fahie v. Lindsay, 8 Oregon, 474, Interpleader 5865 Fairfax, Agar?;., 17 Ves., 543, Partition 5798 Fairfield, McClure v., 153 Pa. St. , 411, Quia Timet 5855 Fales V. Wentworth, 1 Holmes, 96, Injunctions 5655 Falke, Poppenhusen v., 4 Blatch. , 493, Injunctions 5651 Fallon V. Remington, 10 W. N. , 119, Injunctions 5647 Farebrother, Bethune v., 5 Maule & Selvpyn, 385, Preparation 5373 Fargo V. Rwy. Co., 81 Pa. St., 366, Corporations 5481 Farley v. Stokes, 1 Pars., 433, Specific Performance 5731 Farnham, Metz w., SPhila., 367, Account 5400 Farnum v. Farrell, 2 Phila. , 368, Answers ". 5968 Farquhar v. McAlevy, 143 Pa. St. , 333, Appeals 6173 Farquharson, Moflfat v. , 2 Brown's Clianc. Cases, 338, Who Must be Joined 5341 Farr, Butler v., 1 W. N., 11, Injunctions 5641 FarreU, Farnum v., 3 Phila., 368, Answers 5968 Fausset, Whitfield v., 1 Ves. Jr. Rep., 393, Accident 5414 Faust V. Rwy. Co., 3 Phila., 164, Injunctions 5676 Fawcett v. Aultman, 29 Pitts. L. J. , 331, Preparation 5373 Fawcett v. Aultman, 29 P. L. J., 331, Amendments 5904 Fellows, Earl of Portsmouth v. , 5 Maddock, 450, Preparation 5381 Fellows V. Loomis, 156 Pa. St., 74, Dower 5553 Felty V. Calhoun, 147 Pa. St., 37, Review 5875 Felty's Appeal, 139 Pa. St., 378, Specific Performance 5720 Fenhoulet v. Passavant, 2 Ves. Sr. , 34, Preparation 5381 Fenlon, Navigation Co. ?;. , 4 W. & S. , 205, Account 5890 Fenner, Earth Closet Co. v., 5 Fish., 15, Injunctions 5656 Fenton, Miller v., 11 Paige, 18, Cross-bills 5891 XC TABLE OK CASES. SeotioiL Ferguson, Callen v., 39 Pa. St., 347, Specific Performance 5731 Ferguson, Wolf v., 139 Pa. St., 373, Appeals 6164 Ferguson r. Yard, 164 Pa. St., 586, Trusts 5754 Ferguson r. Yard, 164 Pa. St., 586, Demurrers 5944 Ferguson's Appeal, 117 Pa. St., 436, Injunctions 5673 Ferguson's Appeal, 56 Pa, St., 487 ?i., Specific Performance 5723 Ferree v. Surveyors, 9 Phila., 518, Injunctions 5707 Ferst, Eohertu., 10 Phila., 514, Injunctions 5673 Fertilizing Co., Evans tJ., 160 Pa. St., 309, Injunctions 5676 FideUty Co. v. Gazzam, 161 Pa. St. , 536, Account 5394 Fidelity Co. v. Huber, 7 W. N., 378, Receivers - 5573 FideUty Co.'s Appeal, 38 Leg. Int. , 157, Appeals 6179 Fidelity Co.'s Appeal, 11 W. N., 104, Appeal 6181 Field V. Schiefflelin, 7 Johns. Chanc, 353, Cross-bills 5891 Filley u. Organ Co., 3 Kulp, 396, Receivers 5594 Fillman v. Divers, 31 Pa. St., 439, Trusts 5736 Finch V. Finch, 3 Ves. Sr. Rep., 493, Who Must be Joined 5343 Finley v. Aiken, 1 Grant, 84, Specific Performance 5730, 5731 Finley, Breeding v. , 1 Dana (Ky.), 477, Who may Sue 5305 Finley, Laughlin v., 5 W. N., 144, Injunctions 5647 Finney, Rowand v., 96 Pa. St., 193, Accident 5447 Fire Ins. Co.., Hays v., 99 Pa. St., 631, Receivers 5610- Fire Ins. Patrol v. Boyd, 44 Leg. Int. . 353, Injimctions 5648 Firestone v. Christ, 3 C. C, 413, Who may Sue 5303 Fish V. Miller, 5 Paige, 36, Replications 5989 Fisher, Adams v., 3 Mylne & Craig, 536, Production 6004 Fisher v. Evans, 1 P. A. Browne, 356, Who may Sue 5304- Fisher, Ins. Co. v.. 3 Phila., .547, Costs 6111 Fisher v. Walter, 3 C. P., 161, Amendments 5905 Fishery;. Worrall, 5 W. &S., 478, Specific Performance 5721 Fisher's Appeal, 14 Atl. Rep., 225. Injunctions 5647 Fitch, R. R. Co. v., 30 Ind., 498, Receivers 5614 Fitler, Rwy. Co. v., 60 Pa. St., 124, Corporations 5494 Fitton V. Com' Macclesfield, 1 Vern. , 364, Who may Sue 5316 Fitzgerald, Vaughan v., 1 Sch. & Lef., 316. Perpetuation 5543, 5543 Flaherty v. Insurance Co., 1 W. N., 352, Account 5396 Flanagan v. City, 8 Phila., 110, Injunctions 5659 Flemings. Ogden, 31 W. N., 399, Trusts 5733 Fleming's Appeal, 67 Pa. St., 18, Replications 5995, TABLE OF CASES. Xci Section. Fletcher, Severn v., 5 Sim., 457, Amendments 5904 Fletcher's Appeal, 125 Pa. St., 352, Review 5875 FHght V. Bolland, 4 Euss., 298, Specific Performance 5720 Flogham, Green v., 1 Simons & Stuart, 398, Injunctions 5667 Flower MiUs Co., Nat. Bank of Salem v., 39 Fed. Rep., 89, Who may Sue 5311 Floyd V. Jayne, 6 Johnson's Chanc, 479, New Trial 5885 Foley V. Tovey, 54 Pa. St., 190, Trusts 5733 FoU's Appeal, 91 Pa. St. , 434, Specific Performance 5723 Folson, Radford v., 3 Fed. Rep., 199, Decrees 6095 Ford, Clark v., 3 Keyes, 370, Dower 5764 Ford V. Jermon, 6 Phila. , 6, Specific Performance 572{^ Ford V. Terry, 41 Leg. Int. , 174, Preparation of BiU 5372 Forepaugh, Speakman v., 44 Pa. St., 303, Specific Performance 5723 Forgey, Suthff u, 1 Co wen (N. Y.), 89, Dower 5557 Forsyth, Rhea u, 37 Pa. St., 503, Injunctions 5689 Forsythe, Michael v., 2 Chest. Co. Rep., 32, Who may Sue 5303 Fort Pitt Assn. v. Model Assn., 159 Pa. St., 308, Corporations 5530 Fortner, Savage v. , 2 Chest. , 271, Amendments 5904 Forward School District Appeal, 56 Pa. St., 318, Amendments 5905 Fosbrooke, Kaye v., 8 Sim. Ch., 28, Demurrers 5944 Foss V. Harbottle, 2 Hare, 461, Who may Sue 5310 Fost, Schettler v., 43 Wise, 48, BiUs of Peace 5844 Foster i. Coleman, 10 Cal., 278, Bills of Peace 5842 Foster v. Deacon, 6 Maddock's Chanc. Cases, 59, Who Must be Joined. 5358 Foster, Havens., 9 Pickering, 112, Accident 5416 Foulds V. Midgley, 1 Ves. & B., 138, Perpetuation 5542 Foulke, Wister v., 6 Phila., 26, Masters 6038 Fouse V. Carrick, 5 W. N., 168, Who may Sue 5305 Fowle V. Lawrason, 5 Peters, 503, Account 5391 Fowler, Lafayette v., 34 Ind., 140, Bills of Peace 5844 Fowler v. Lee, 10 Gill & J., 358, Interpleader 5862 Fox, Bank v. 17 N. Y., 507, Who may Sue 5311 Fox, Bank v., 3 Blatch., 431, 432, Who may Sue 5311 Fox, Kimberly v,. 27 Conn., 307, Bills of Peace 5848 Fox, Kimberly v., 37 Conn., 307, Quia Timet 5855 Fox, Kraut ■y.,lW.N., 401, Costs 6116 Fox, MiUingtontJ., 3 Mylne & Craig, 352, Costs 6112 Fox V. Scott, 2 Phila., 151, Trusts 5733 :Xcii TABLE OF CASES. Section Fox, Singerly t)., 75 Pa. St., 113, Receivers 5611 FoxhaU, Walmsley v., 1 DeG. J. & S., 451, Rehearing 6101 Fox's Appeal, 93 Pa. St., 417, Who may Sue 5311 Francis, CoUom v., 1 Pars., 537, Discovery 5470, 5472 Francis, Whitmore v., 8 Price, 616, Demurrers 5944 Franco v. Franco, 3 Ves. Jr. Rep., 75, Who Must be Joined 5343 Frank v. Riegel, 2 Pears., 53, Costs 6110 Frantz v. Deliart, 1 C. C, 4, Who may Sue 5303 Franz v. Morgan, 6 Phila. , 8, Marshalling Assets 5834 Fraser, Lumsden v., 1 Mylne & Craig, 589, 602, Want of Parties 5900 Fraternal Guardians, Assigned Estate of, 34 W. N., 318 ; 159 Pa. St., 603, Receivers, 5578 Frauenthal's Appeal, 100 Pa. St., 390, Demurrers 5944 Frazeru. HaUoweU, 1 Binn., 136, Trusts 5733 Freelove, Hurlburd v. , 3 Wise. , 537, Rehearing 0100 Freeman, Pennook v., 1 Watts, 401, Specific Performance 5731 Freeman v. Stine, 34 Leg. Int. , 96, Preparation 5384 Freeman v. Stme, 36 Leg. Int., 433, Masters 6037 Freeman v. Stokes, 4 W. N., 459, Speoflic Performance 5720 Freetley v. Barnhart, 51 Pa. St., 379, Specific Performance 5731, 5733 French v. Dear, 5 Ves., 547, Demurrers 5944 JFrench, Green v., 16 Ofif. Gaz., 215, Injunctions 5651 Frey's Estate, 34 Leg. Int., 176, Review 5874, 5877 Frey's Estate, 4 W. N., 415, Execution G134 Frick, Grattanr;., 27 W. N., 214, Examiners 6013, 6013 Frick, Mason v., 13 W. N., 570, Who may Sue 5303 Frick u. Magee, 10 W. N., 50, Amendments 5905 Fridenberg, Orne v. , 143 Pa. St. , 487, Injunctions 5639, 5686 Fridenberg, Orne v., 143 Pa. St., 503, Decrees 6095 Fi-iend v. Lamb, 153 Pa. St., 529, Specific Performance 5720, 5731 Fi-ies V. Ennis, 8 C. C, 113, Examiners 6019 Frisbee v. Timanus, 13 Fla., 300, Receivers 5583 Frisbee's Appeal, 88 Pa. St., 144, Account 6393 Frith V. Sprague, 14 Mass., 455, Accident 5416 Fritz, Jenks v., 7 W. & S., 301, Accident 5431 Frost V. Belmont, 6 Allen. 152, Bills of Peace 5843 Fry, Ex parte, 4 Phila., 129, Trusts 5745 Fry, Wilkins v., 1 Mer., 244, Preparation 5373 Fuohs V. Wright, 6 W. N., 157, Who may Sue 5303 TABLE OF CASES. Xciil Sectioiti Fuller, Potter v., 2 Fisher, 251, Injunctions 5651, 5657 Fuller V. Trust Co., 157 Pa. St., 646, Accident 5450 Fulton V. Sellers, 4 Brewster, 42, Injunctions 5663 Funk V. Haldeman, 53 Pa. St., 339, Accident 5415 Furbush, MacDonald v., 26 W. N., 120, Injunctions 5648 Furnaan v. Nichols, 8 Wall., 44, WIio may be Sued 5336 Fussell V. Rhodes, 3 Phila., 165, Specific Performance 5730 G. Gage, Evans v., 1 lU. App., 202, BUls of Peace 5844 GaiUard, Chamberlain v., 26 Ala., 504, Decrees 6095 Gaines v. Brookerhofif, 26 W. N., 258, Masters 6034 Gaines, R. R. Co. v., 3 Tenn. Ch., 478, Bills of Peace 5843 Gainz, Clark v., 21 Minn., 387, Bills of Peace 5842 Galbraith, Lloyds., 32 Pa. St., 103, Marshalling Assets 5836, 5837 Galbreath v. Galbreath, 5 Watts, 146, Partition 5775 Gale, Oil Co. v.. 6 W. Va., 525, Interpleader 5863 Gallatian v. , Cunningham, 8 Cowen (N. Y.), 301, Cross-bills 5891 GaJien's Estate, 36 W. N., 308, Review 5S74 Galvestone, Blessing v., 42 Tex., 641, Bills of Peace 5842 Gannon, Riel v., 161 Pa. St., 289, Specific Performance 5733 Gannon v. Widman, 3 Dist. Rep., 835. Dower 5552, 5558 Gans, Renshawti., 7 Pa. St., 119, Accident 5446 Gans V. Renshaw, 2 Pa. St., 34, Specific Performance 5733 Garner, Hughes v., 3 Younge & Coll., 338, Answers 5970 Garner's Appeal, 1 Walker, 438, Trusts 5733 Garner's Appeal, 1 Walker, 438, Amendments 5904 Garrison, De Zouche v., 140 Pa. St., 480, Interpleader 5863 Gas Co. V. City, 34 P. L. J., 340, Injuuctions 5699 Gas Co. V. Douglass, 130 Pa. St., 383, Preparation 5373 Gas Co. V. Gas Co., 7 C. C, 277 ; 34 W. N., 573, Preparation 5385 Gas Co. V. Gas. Co., 24 W. N., 573 ; 38 P. L. J.. 252, Injunctions. .5694, 5697 Gas Co. V. Gas Co. , 24 W. N. , 573, Replications 5994 Gas Co. V. Gas Co., 7 C. C, 377 ; 24 W. N., 575, Masters 6030 Gas Co., Manfg. Co. v., 139 Pa. St., 448, Injunctions 5639 Gas Co., McGibheny v., 139 Pa. St., 193, Appeals 6181 Gas Co., Morok v., 8 C. C, 131, Preparation of BiU 5376 Gas Co. V. Poterie, 153 Pa. St., 11, Injunctions 5673; ,XC1V TABLE OF CASES. Section ■Gas Co., Poterie v., 153 Pa. St., 13, Injunctions 5673 Gas Co. , Water Co. v. , 95 Pa. St. , 35, Injunctions 5701 Gas Co., Whiteman v., 37 W. N., 205, Injunctions 5629 Gas Co.'s Appeal, 118 Pa. St., 436, Injunctions 5701 Gas Co.'s Appeal, 117 Pa. St. , 514, Specific Performance 5723 Gas Trustees, City u , 12 W. N. , 477, Preparation 5384 Gass V. Stinson, 2 Sumner, 605, Masters 6037 Gates V. Bloom, 30 W. N., 127, Appeals 6183 Gatzmer v. Society, 147 Pa. St., 313, Injunctions 5639 Gavit, Snodgrass v. , 28 Pa. St. , 331 , Account 5396, 5397 Gay, Perkins tJ., 3 S. & R., 327, Accident. 5423 Gazzam, Fidelity Co. i). , 161 Pa. St. , 536, Account 5394 Geddes' Appeal, 80 Pa. St., 442, Accident 5447 Gehres v. Crawford, 9 Atl., 508, Accident 5452 Geissler v. Scott, 13 Leg. Int. , 213, Specific Performance . . 5723 Gell V. Hay ward, 1 Vern., 312, Preparation .., 5388 Grelpeke v. Milwaukee Co., 11 Wise, 454, Execution 6135 George v. Dean, 47 Tex., 73, Bills of Peace 5842 George v. Lawrence, 1 Pearson, 151 , Execution 6138 George, Rattray v., 16 Ves., 333, Who may Sue 5331 George's Appeal, 13 Pa. St., 260, Review '. 5874 Georgetown, Hennewinkle v., 15 Wallace, 548, Bills of Peace 5843 Georgia, Chrisholm v., 3 Dal!.. 419, Who may be Sued 5335 Georgia v. Madrazo, 1 Peters, 110, Who may be Sued 5325 Gerliard, Goss ti., 7 W. N., 51, Who may Sue 5305 Gerhard's Estate, 30 Leg. Int., 13, Marshalling Assets 5838 Gerlaoh, Eckhart v., 35 Leg. Int., 314, Injunctions 5666 German's Appeal, 1 Pitts., 334, Ti-usts 5745 Germantown Water Co. v. McCallum, 5 Phila., 93, Injunctions 5655 Germantowu Water Co. , McCallum v. , 54 Pa. St. , 40, Injunctions . . 5655, 5677 ■Gesell's Appeal, 4 W. N., 435 ; 84 Pa. St., 238, Appeals 6179 Getloy, Troughton v. , 1 Dick. , 383, Demurrers 5944 Getty, Wilsonu, 57 Pa. St., 366, Accident 5435 Gibbons, Brooks v. , 4 Paige, 374, Demurrers 5941 Gibbons' Appeal, 104 Pa. St., 587, Rules 5187 Gibbons' Appeal, 104 Pa. St. , 591, Partition 5794 Gibbons' Appeal, 104 Pa. St., 587, Masters 6035 -Gibson v. Betts, 1 Blatch. , 163, Injunctions 5651 "Gibson, Clark v., 13 W. N., 533, Quia Timet 5855 TABLE OI' CASES. XCV Section Gibson v. Gifford, 1 Blatoh., 529, Injunctions 5653 Gibson v. Van Dresar, 1 Blatch., 533, Injunctions 5651 Gifford, Gibson v. , 1 Blatcli. , 539, Injunctions 5653 Giles, Artman v., 155 Pa. St. , 409, Preparation 5373 Giles, Artman v. , 155 Pa. St., 410, Injunctions .5647 Gillelan, Massey v., 1 Paige Ch., 644, V.'lio may Sue 5304 Gillen's Appeal, 8 W. N., 499, Review 5874 Gillespie v. Alexander, 3 Russell, 130, Trusts 5753 Gillis 1-. Hall. 3 Brewster. 343. Injunctions .5639, 5687 Gilman v. City, 3 Wallace, 713, Injunctions 5684 Gilroy's Appeal, 100 Pa. St., 5, Corporations 5493 Gilroy's Appeal, 100 Pa. St., 5, Injunctions 5633, 5707 Ginschio v. Ley, 1 Phila., 383, Accident 5435 Girard i\ City, 7 Wallace, 1, Quia Timet 5856 Girard, City v., 45 Pa. St., 9, Decrees 6095 Girard, /;( re, 5 Clark, 68, Injunctions 5696 Givens' Appeal, 131 Pa. St., 260, Demurrers 5944 Givens' Estate, 3 W. N., 160, Review 5874 Givens' Estate, 6 W. N., 434, Review 5874 Glading, Bodine v., 21 Pa. St., 50, Specific Performance 5730, 5721 Glading, Tarr v. , 1 Phila. , 370, Specific Performance 5731 Gladman v. Henchman, 3 Vern., 135, Corporations 5525 Gladstone v. Musurus Bey, 1 Hemming & Miller Chanc. Rep., 495, Who may be Sued 5334 Glass, McBarron v., 30 Pa. St., 133, Trusts 5736 Glegg V. Legli, 4 Mad., 307, Amendments 5913 Glenn v. Statler, 43 Iowa, 107, Accident 5448 Gloninger v. Hazard, 42 Pa. St., 389, Who Must be Joined 5360 Gloninger v. Hazard, 42 Pa. St., 389, Account 5391 Gloninger v. Hazard, 43 Pa. St., 389, Want of Parties 5961 Glyn, Harding v., 1 Atkyn's Rep., 469, Accident 5415 Godbolt V. Watts, 3 Anst., 543, Demurrers 5944 Godfrey v. Chadwell, 2 Vernon's Rep., 601, Who Must be Joined 5354 Godfrey v. Dwinell, 40 Me., 94, Specific Performance 5721 Goehring, Dennison v., 7 Pa. St., 175, Trusts 5734 Goehring. Dennison v., 6 Pa. St., 403, Review 5875 Goelet, Lansing v., 9 Cowan, 346, Corporations 5525 Goettel V. Sage, 117 Pa. St., 298. Accident 5424 Gold Co. , Colgate v., 16 Blatch. , 503, Injunctions 5651 XCvi TABLE OE CASES. Section Goldey, Bains v., 35 Pa. St., 51, Answers 5968 Goldsmith v. Swift, 25 Hun, 201, Who may Sue 5311 Goldsmiths' Co., Atty.-Genl. v., 5 Sim., 670, Preparation 5384 Goldsmiths' Estate, 9 W. N. , 276, Execution 6138 Goldwin, Chambers v., 9 Ves. Jr. Rep., 69, Who Must be Joined 5351 Gompers v. Rochester, 56 Pa. St., 194, Injunctions 5666 Gompertz v. Best, 1 Younge & Collyer, 117, Preparation 5382 Good«. Herr, 7 W. & 8., 253, Accident 5418 Good Intent Co. v. Hartzell, 22 Pa. St. , 277, Appeals 6164 Goodale, Chase v., 2 Luz. Law Times (N. S.), 107, Receivers 5596 Goodale v. Goodale, 16 Simon, 316, Injunctions 5667 Goodall, Iron Co. v., 39 N. H., 223, Quia Timet 5855 Goodman ■«. Whitcomb, IJac. & Walker Chanc. Cases, 569, Account. . 5399 Goodman, Wing v., 75 111., 159, Cross-bills 5894 Goodrich, Ham ■;;. , 33 N. H. , 32, Specific Performance 5721 Goodrich v. Pendleton, 3 Johns. Ch. Rep., 520, Who may Sue 5302 Goodwin, Evans v., 132 Pa. St., 136, Acconnt 5394 Goodwin, Evans v., 132 Pa. St., 136, Demurrers 5944 Goodwin, Lever v., 36 L. J. (Chanc. Div.), 1, Injunctions 5663 Goodwin, U. S. v., 7 Cranch, HI, Appeals 6146 Goodyear, Atlantic Co. v., 13 Off. Gaz., 45, Injunctions 5651 Goodyear Co. , Celluloid Co. i\, 13 Blatch. , 389, Injunctions 5654 Goodyear ■;;. Honsinger, 2 Bissell, 1, Injunctions 5651 Goodyear v. HuUihen, 2 Hughes, 492, Injunctions 5651 Goodyear Co. , Smith v. , 93 U. S. , 486, Injunctions 5652 Goore, Rogers v., 17 Ves., 130, Replications 5993 Gordiniers' Appeal, 89 Pa. St. , 528, Demurrers 5944 Gordon v. Baugher, 2 W. IST. , 14, Injunctions 5648 Gordon's Appeal, 18 W. N., 23, Account 5392 Gorey, Teresy v. , MS. , Accident 5414 Gorman, Miller v. , 38 Pa. St. , 309, Injunctions 5700 Gormley's Appeal, 27 Pa. St., 49, Marshalling Assets 5834 Gormly v. Gormly, 130 Pa. St., 469, Accident 5437 Gosner's Estate, 133 Pa. St., 538, Review 5875 Goss V. Gerhard, 7 W. N., 51, Who may Sue 5305 Gosser, Sawyer v. , 1 W. N. , 55, Corporations 5537 Gouge, Greaves v. , 19 N. Y. , 154, Who may Sue 5310 Gould,Ins. Co. v., 12 W. N., 63. Review 5874 Gourley v. Hess, 8 W. N., 140, Amendments 5914 TABLE or CASES. XCvii Section Gourley v. Kinley, 66 Pa. St., 271, Partition 5776 Gouvemeur v. Elmendorf, 4 Johns. Chanc, 357, Cross-bills 5891 Governor of Georgia v. Madrazo, 1 Peters, 110, Who may be Sued 5325 Gowan v. Jeffries, 2 Ash. , 296, Account 5398, 5399 Gowan v. Jeffries, 2 Ash. , 296, Receivers 5570 Gowen, Cochran v., 9 Phila., 299, Executions 6133 Gower v. Sterner, 2 Wharton, 75, Accident 5443 Graeff's Appeal, 79 Pa. St. , 146, MarshalHng Assets 5837 Graft V. Loucks, 37 W. N., 184, Specific Performance 5733 Graham v. Bank, 8 Lane. L. R., 68, Perpetuation 5535, 5536 Graham, Bellas v., 3 Amer. Law Jour., 64, Partition 5775 Graham, Berryman v.,e C. E. Green, 870, Cross-bills 5891 Graham, Comm. v., 64 Pa. St., 339, Corporations 5493 Graham, Cozine v., 2 Paige, 177, Specific Performance 5726 Graham v. Graham, 34 Pa. St., 475, Specific Performance 5723 Graham, Morgan v., 1 Woods C. C, 124, Bills of Peace. 5843, 5844 Graham, Palmer v., 1 Pars., 476, Injunctions 5666 Graham v. Pancoast, 30 Pa. St., 89, Accident 5431, 5440 Graham v. Tankersley, 15 Ala. (N. S.), 634, Answers 5964 Graham's Estate, 7 C. C, 290, Partition 5833 Grant, Camac v., 1 Sim., 348, Who may Sue 5305 Grant, Cook v., 16 S. & R., 198, Specific Performance 5723 Grant, Jackson v.,BC. E. Green, 145, Cross-biUs 5891, 5894 Gratz V. Lex, 4 Brewster, 295, Partition 5798 Gratz V. Lex, 4 Brewster, 393 ; 6 Phila., 183, Partition 5809 Grattan v. Frick, 37 W. N., 314, Examiners 6013, 6013 Grauley, Manhattan v., 11 W. N., 355, Who may Sue 5305 Gravenstine's Appeal, 49 Pa. St., 310, Preparation 5361 Gravenstine's Appeal, 49 Pa. St., 310, Corporations 5496, 5519 Gravenstine's Appeal, 49 Pa. St., 310, Receivers 5570 Gray, Brown v., 3 Kulp, 136, Who Must be Joined 5350 Gray, Davis v., 16 Wallace, 803, Who may be Sued 5326 Gray, Davis v., 16 Wallace, 303, Receivers 5569 Gray, Horbach v., 8 Watts, 493, Accident 5422 Gray v. Wilson, 4 Watts, 89, Account 5896 GraybiU v. Johns, 7 Lane, 147, Trusts 5747 Grayson v. State of Virginia, 3 Dall., 330, Who may be Sued 5335 Greaves v. Gouge, 19 N. Y., 154, Who may Sue 5310 Greedup v. County, 80 Ark., 101, Bills of Peace 5842 XCVUl TABLE OF CASES. SeetioD. Green v. Flogham, 1 Simons & Stuart, 398, Injunctions 5867 Green v. French, 16 Off. Gaz. , 215, Injunctions 5651 Green v. Harris, 9 E. I., 401, Replications 5992 Green, Phelps v., 3 Johns. Chanc, 305, Partition 5775, 5798 Green, Bobbins v., 1 W. N., 143, Dower 5558 Green's Appeal, 59 Pa. St., 235, Review 5874 Green's Appeal, 59 Pa. St., 235, Rehearing 6102 Greenfield's Estate, 24 Pa. St., 232, Trusts 5734 Greenlee v. Greenlee, 22 Pa. St., 225, Specific Performance 5721 Greenlee v. Greenlee, 22 Pa. St. , 225, Answers 5970 Greenlee v. McDowell, 4 Ired Eq. (N. C), 481, Rehearing 6102 Greenless, Coppin v. , 38 Ohio, 275, Who may Sue 5311 Greenoff, KeUy v., 3 Dist. Rep., 284, Masters 6035 Greenoff's Appeal, 157 Pa. St., 41, Injunctions 5647 Greenough, Kase v., 88 Pa. St., 403, Costs 6119 Greenwood v. Atkinson, 5 Simon's Rep., 419, Who Must be Joined. . . . 5360 Greenwood, Blake v., 14 Blatch., 342, Injunctions 5656 Greenwood v. Bracher, 1 Fed. Rep., 857, Injunctions 5653 Greer, "Volmer v., 7 Phila., 453, Injunctions 5835 Gregory v. Molesworth, 3 Atk., 626, Who may Sue 5297 Grey v. R. R. Co., 1 Grant, 412, Injunctions 5707 Griffin, Cemetery Co. v., 35 W. N., 537, Masters 6034 Griffin's Appeal, 109 Pa. St., 150, Mastei-s 6084 Griffith, Hamner v.. 1 Grant, 193, Decrees 6095 Griffith V. Phillips, 3 Grant, 381, Partition 5809 Grinnell, Washabaugh i\, 32 Leg. Int., 5, Specific Performance 5723 Griscom, City v., 5 Phila., 532, Injunctions 5671, 5672 Griswold v. Griswold, 13 Leg. Int., 229, Perpetuation 5545 Groff, Eberly v., 21 Pa. St., 251, Answers 5970 Gross, Bachman v., 150 Pa. St., 516, Appeals 6184 Gross, Hieskell v., 3 Brews.. 430, Injunctions 5677, 5689, 5707 Gross V. Leber, 47 Pa. St. , 520, Accident 5420 Oross V. Wiend, 151 Pa. St., 639, Replications 5988 Grove V. Barclay, 1 W. N., 635, Quia Timet 5857 Grove v. Bastard, 2 Phillips' Chanc, 619, Quia Timet 5856 Grove's Appeal, 68 Pa. St., 143, Decrees 6096 Grover, Brioker v. , 30 Leg. Int. , 380, Injunctions 5886 Grover Sewing Machine Co. v. Williams, 2 Fisher, 133, Injunctions. . . 5650 iGrubb's Appeal, 90 Pa. St., 228, Account 539^ TABLE OF CASES. xcix Section Ouernsey, Churcher v., 39 Pa. St., 84, Specific Performance 5731 Guggenheim, Crucible Co. v., 2 Brews., 321, Injunctions 5663 Cruggenheimer's Appeal, 2 Cent. , 536, Trusts 5747 Guie, Ash v., 97 Pa. St., 499, Who may Sue , 5308 Gump's Appeal, 65 Pa. St., 478, Accident 5432, 5443 Gunn V. Bowers, 136 Pa. St., 553, Amendments 5914 Gunn V. Savage, 35 Fed. Rep. , 101 , Injunctions 5655 Gunson, Kenah v., 40 Leg. Int., 271, Injunctions 5647 Guthrie, Plumer v., 76 Pa. St., 441, Trusts 5736, 5744 Guttendag v. Iron Co., 36 Leg. Int., 333, Injunctions 5647 Guy V. Hernance, 5 Cal., 73, Quia Timet 5855 Gyger's Appeal, 62 Pa. St., 73, Costs 6110 Gyger's Appeal, 15 W. N., 513, Appeals 6178 Gyger's Estate, 2 Lane. Bar, 3, Rehearing. . 6103 H. Baas, SilUman v., 151 Pa. St., 52, Trusts 5786 Habicht v. Pemberton, 4 Sand. (N. Y.), 657, Who may Sue 5308 Hacke's Appeal, 101 Pa. St., 349, Injunctions 5688 Hadden, Angell v., 15 Ves., 344 ; 16 Ves., 202, Interpleader 5863 Hagaman v. County, 19 Kansas, 394, Bills of Peace 5846 Hagenman v. Esterly, 1 Dist. Rep., 704, Dower 5550 Haggerston, Weston v., Cooper's Ch. C, 184, Amendments 5914 Hagood V. Southern, 117 U. S. , 53, Who may be Sued 5336 Hagre, Hautonu., Prec. Ch., 330, Who may Sue 5831 Haldeman, Funk v., 53 Pa. St., 229, Accident 5415 Hale, Curtis v., 1 W. N., 371, Receivers 5580 Hale, Evoritt v., 39 Leg. Int., 158, Trusts 5741 Hales V. Shaftoe, 1 Ves. Jr., 86, Execution 6140 Hallv. Dodge, 38 N. H., 346, Decrees 6095 Hall, Elmer v., 148 Pa. St., 345, Account 5391 Hall, Gillis v., 3 Brewst. , 343, Injunctions 5639, 5687 Hall V. Hall, 3 Macnaght. & G., 79, Account 5390 HaU V. Hoddesdon, 3 P. Wms., 163, Perpetuation 5543 ' Hall V. Piddock, 31 N. J. Eq. Rep. , 314, Partition 5769 HaU's Appeal, 60 Pa. St., 458, Injunctions 5666 Hallahan v. Murray, 3 W. N., 44, Who may Sue 5303 Hallman, BaU Club «., 8 C. C, 58, Injunctions 5669 e TABLE OP CASES. Section Hallman, BaU Club u., 8 C. C, 57, Specific Performance -. 5723 HaUoweU, Fraaer v., 1 Binn., 126, Trusts 5733 Ham V. Goodrich, 38 N. H., 32, Specific Performance 5721 Hamblyn v. Ley, 3 Swanston, 301 n. , Execution 6141 HamiU's Appeal, 88 Pa. St., 363, Review 5875 Hamilton?;. Asslin, 14 S. & R., 448, Accident 5442 Hamilton, Col well v., 10 Watts, 413, Specific Performance 5723 Hamilton v. Cummings, 1 Johns. Ch., 517, Quia Timet 5855 Hamilton v. Hart, 125 Pa. St., 142, Account 5396, 5397 HamUton v. Marks, 5 DeG. & S., 638, Interpleader 5866 Hamilton, O'Neil v., 44 Pa. St., 18, Quia Timet 5855 Hamilton's Estate, 4 W. N., 204, Execution 6133 Hamlin v. Peck, 135 Pa. St. , 494, Injunctions 5700 Hammer v. McEldowney, 46 Pa. St. , 834, Specific Performance 5720 Hammersly v. Turnpike, 8 Phila., 814, Injunctions 5707 Hammond, Allen v. , 11 Peters, 63, Accident 5421 Hamner v. Griffith, 1 Grant, 193, Decrees 6095 Hampton v. Speckenagle, 9 S. & R., 212, Specific Performance 5721 Hancock's Appeal, 34 Pa. St., 155, Marshalling Assets 5834 Handt;. Weidner, 31 W. N., 119, Answers 5970 Hand's Appeal, 31 Leg. Int., 46, Rehearing 6101 Haneman v. PUe, 161 Pa. St., 599, Preparation 5388 Haneman v. PUe, 161 Pa. St., 599, Demurrers 5944 Haneman v. Pile, 161 Pa. St., 599, Answei-s 5968 Hanna v. PhiUips, 1 Grant, 258, Specific Performance 5723 Hannewinkle v. Georgetown, 15 Wallace, 548, Bills of Peace 5842 Harbaugh, Painter v., 25 P. L. J., 49, Specific Performance 5721 Harbaugh, Painter v. , 25 P. L. J. , 49, Examiners 6011 Harbottle, Foss v., 2 Hare, 461, Who may Sue 5310 Hard v. Case, 32 111., 45, Cross-bills 5886 Ilardcastle v. Smithson, 3 Atk., 246, Who Must be Joined 5853 Harding v. Glyn, 1 Atk. Rep. , 469, Accident 5415 Harding, Painter v., 3 Phila., 144, 449, Answers 5968, 5970 Hardmann v. EUames, 2 Mylne & Keen, 757, Production 6004, 6006 Hardy v. Marble, 10 Fed. Rep. , 752, Injunctions 5655 Hare, Wai-ner v. , 154 Pa. St. , 548, Mastei-s 6034 Hare, Warner v. , 154 Pa. St., 548, Appeals 6183 Harkinson's Appeal, 78 Pa. St., 196, Injunctions 5655, 5666, 5707 Harlan, Mitcheson v., 8 Phila., 385, Injunctions 570T TABLE OF CASES.. ci Section Harlan, Mitcheson v., 3 Phila., 396, Revivor 5936 Harlow, Crowell v., 18 Off. Gaz., 466, Injunctions 5654, 5655 Harmon's Appeal, 2 "W. N., 62, Specific Performance 5733 Harper's Appeal, 109 Pa. St., 9, Injunctions 5700 Harrah, Smoot v., 5 W. N., 147, Who may Sue 5305 Harrah, Smoot v., 5 W. N., 147, Costs 6119 Harrier, Paxton v., 11 Pa. St., 312, Marshalling Assets 5834 Harrigan v. McAleese, 16 Atl., 31, Specific Performance 5723 Harrigan's Appeal, 1 Mona., 450 ; 16 Atl., 31, Costs 6110 Harrington, Eushton v., 1 W. N., 79, Receivers 5596 Harris, Comm. v., 10 W. N., 10, Injunctions 5676 Harris, Green v., 9 R. I., 401, Replications 5993 Harris, Lady Selyard v., 1 Eq. Gas. Abridged, 74, Who Must be Joined. 5349 Harris, Leech v., 2 Brews., 571, Injunctions , 5703 Harris, Morgan v., 2 Brown Ch., 123, Demurrers 5940 Harris, Palmer v., 60 Pa. St., 156, Injunctions 5663 Hai-ris, Trust Co. v., 3 Bosworth (N. Y.), 90, Who may Sue 5811 Harrisburg, Eoumfort v., 2 Pearson, 101, Injunctions 5684 Hai-risburg's Appeal, 107 Pa. St., 102, Injunctions 5673 Harrisburg R. R. Co.'s Appeal, 23 W. N., 417, Who Must be Joined. . . 5343 Harrisburg R. R. Co.'s Appeal, 22 W. N., 417, Preparation 5359 Harrison v. Church, 14 W. N., 387, Amendments 5904 Harrison v. Church, 41 Leg. Int., 114, Examiners 6013 Harrison, Hole ■;;., Finch Chanc. Cases, 15, Who Must be Joined 5353 Harrison, Kelly v., 2 Johns. Cases (N. Y.), 29, Dower 5557 Harrison, Landell v., 40 Leg. Int., 4, Injunctions 5648 Harrison v. McCullough, 32 Leg. Int., 354, Specific Performance 5733 Harrison v. Pryse, Bamardiston's Chanc. Cases, 334, Who Must be Joined 5347 Harrison v. Tennant, 21 Beav., 482, Account 5399 HarrisvOle, Douglass v., 9 W. Va., 162, Bills of Peace 5843 Harrop, Buckmaster v., 13 Ves., 458, Rehearing 6105 Hart, Hamnton v., 125 Pa. St., 143, Account 5396, 5397 Hart, Macready v., 30 Leg. Int., 53, Decrees 6087 Hartley's Appeal, 103 Pa. St., 35, Accident 5449 Hartley's Appeal, 103 Pa. St., 23, Answers 5970 Hartman, Bank v., 147 Pa. St., 558, Accident 5447 Hartman, Hoffman v., 7 Lane. L. R., 137, Who Must be Joined 5860 Hartman, Hoffman v., 7 Lane. L. R., 137, Preparation 5373 cii TABLE OF CASES. SeetioiL Hartman, Kirk v., 63 Pa. St., 97, Appeals 6174 Hartman's Appeal, 36 Pa. St., 70, Review 5874 Hartman's Appeal, 36 Pa. St., 70, Rehearing 6103 Hartnack v. James, 8 Phila., 317, Injunctions 5647 Hartupee v. City, 97 Pa. St., 107 ; 131 Pa. St., 585, Account 5396, 5397 HartzeU, Good Intent Co. ■;;., 22 Pa. St., 277, Appeals 6164 Hartz's Appeal, 2 Gr., 83, Review 5874 Harvey v. Lance, 1 Luz. L. Obs., 315, Answers 5968 Haskell v. Hilton, 30 Me., 419, Demurrers 5944 Haskins' Appeal, 164 Pa. St., 109, Amendments 5897 Haslet V. Haslet, 6 Watts, 464, Specific Performance 5721 Hass V. R. R. Co., 5 Lane. Law R., 353, Who may Sue 5303 Hassey, Ex parte, 2 Wh., 330, Trusts 5735 Hassler v. Bitting, 40 Pa. St., 68, Answers 5970 Hassler's Appeal, 5 Watts, 176, Amendments 5914 Hasson v. City, 67 N. Y., 523, Bills of Peace 5843 Hastings, In re, 10 Watts, 303, Marshalling Assets 5887 Hasty V. Berry, 1 S. W. Rep., 8, Decrees 6095 Hathaway, Richey v., 149 Pa. St., 207, Account 5394 Hattrick's Estate, 7 W. N., 261, Injunctions 5702 Hattrick's Estate, 8 W. N., 130, Review 5874 Haudenschield v. Haudenschield, 5 Cent. Rep., 703, Partition 5807 Haugh, Dill v., 9 W. N., 417, Injunctions 5677 Haugh's Appeal, 103 Pa. St., 43, Injunctions 567T Haught V. Irwin, 36 W. N., 138, Injunctions 5712, 5716 Hauton v. Hagre, Prec. Ch., 330, Who may Sue 5321 Haven v. Foster, 9 Pickering, 112, Accident 5416 Havens, HuUy v., 3 Luz. L. Reg., 185, Masters 6084 Hawes v. Oakland, 104 U. S., 450, Corporations 5496 Hawkins, Nalder v., 3 Mylne & Keen, 343, Who may Sue 5295 Hawkins, Swift v. , 1 Dallas, 17, History 5034 Hawley, Sankey v., 118 Pa. St., 30, Accident 5450 Hawthorn, McMillen v., 30 P. L. J., 378, Revivor 5926 Hayes' Appeal, 133 Pa. St., 183, Partition 5775, 5780 Hayes' Appeal, 113 Pa. St., 380, Demurrers 5945, 5946 Haylin, Taylor v., 3 Bro. C. C, 310, Preparation 5388 Hayman's Appeal, 65 Pa. St., 433, Trusts 5745 Hays V. Dicken, 28 P. L. J., 180, Amendments 5904 Hays V. Fire Ins. Co., 99 Pa. St., 631, Receivers 5610 TABLE OF CASES. ciii Section Hays, Henderson v., 3 Watts, 148, Specific Performance 5721 Hayward, Gell v. , 1 Vern. , 313, Preparation of Bill 5388 Haywood v. Ovey, 6 Haddock's Chanc. Eep., 113, Wlio Must be Joined 5353 Hazard v. Durant, 11 E. I., 195, Who may Sue 5310 Hazard, Gloninger v., 42 Pa. St., 389, Who Must be Joined 5360 Hazard, Gloninger v., 43 Pa. St. , 389, Account 5391 Hazard, Gloninger v., 48 Pa. St., 389, Want of Parties 5961 Hazlett, Wray v., 6 Phila., 155, Preparation of Bill 5363, 5384 Hazlett, Wray v. , 1 Brewster, 295, Amendments 5907 Head v. Meloney, 111 Pa. St., 103, Accident 5453 Head v. Meloney, 111 Pa. St., 99, Revivor 5926 Healey v. Jagger, 3 Sim., 494, Replications 5995 Hearn, WooUam v., 7 Ves., 211, Accident , 5444 Heath, White v., 10 Fed. Rep. , 391, Injunctions 5C53 Heath's Appeal, 100 Pa. St., 1, Trusts 5744 Heckscher's Appeal, 100 Pa. St., 379, Injunctions 5716 Hedge and Horn's Appeal, 63 Pa. St., 373, Who may Sue. 5308 Hedge's Appeal, 63 Pa. St., 273, Appeals 6183 Heebner, Betz i;., 1 P. & W., 380, Marshalling Assets 5834 Heermans, Trustees v., 1 Kulp, 469, Preparation 5384 Heft, Kalle v., 154 Pa. St., 470, Trusts 5737 Heft, Kalle v., 154 Pa. St., 470, Costs 6114 Heim, Roberts v., 27 Ala., 678, Decrees 6095 Heinz v. Lutz, 146 Pa. St., 592, Injunctions 5661 Henchman, Gladman v., 2 Vern., 135, Corporations 5525 Henderson v. Hays, 3 Watts, 148, Specific Performance 5721 Henderson, Southmayd ri. , 13 W. N. , 78,AVho may Sue 5303 Hengst's Appeal, 34 Pa. St. , 413, Replications 5994 Henlan, Miller v., 51 Pa. St., 365, Specific Performance 5731 Henrici, Bigham v., 33 W. N., 84, Decrees 6090 Henry, Beatty v., 30 Leg. Int., 140 ; 10 PhUa., 35, Trusts 5733 Henry v. Dietrich, 84 Pa. St., 386, Trusts 5733 Henry, McNicklet)., 8 Phila., 87, Account 5393 Henry, McNickle u, 8 Phila., 87, Dower 5558 Henry, McNickle v., 8 Phila., 87, Partition 5800 Henry v. Patterson, 57 Pa. St., 846, Trusts 5736, 5744 Henry V. Raiman, 25 Pa. St., 354, Trusts 5740 Henry, EoUins v., 77 N. C, 467, Trusts 5748 civ TABLE OF CASES. Section Henshall, Hepworth v., 153 Pa. St., 593, Specific Performance 5731 Henshall, Hepworth v., 33 W. N., 321, Answers 5970 Henshaw, Atkinson v., 3 Ves. & Beames, 85, Eeceivers 5580 Hepburn's Appeal, 65 Pa. St. , 468, Appeals 6181 Hepworth v. Henshall, 153 Pa. St., 592, Specific Performance 5731 Hepworth v. Henshall, 33 W. N., 321, Answers 5970 Heraty, Maguire v., 163 Pa. St., 381, Specific Performance 5721, 5733 Heraty, Maguire v., 163 Pa. St., 388, Want of Parties 5961 Herbert, Howard v., 36 Leg. Int., 16, Who may Sue 5304 Herdic v. Bilger, 47 Pa. St., 60, Account 5396 Herdic's Appeal, 58 Pa. St., 311, Masters C035 Hergel v. Laitenberger, 3 Tenn. Ch., 251, Cross-bills 5889 Herly v. Ballard, 4 Bro. Ch., 468, Trusts 5749 Hemance, Guy v., 5 Cal., 73, Quia Timet 5855 Herold, Douglass v., 34 Leg. Int., 115, Specific Performance 5723 Herr, Good v., 7 W. & S., 253, Accident 5418 Hertz, Solomon v., 40 N. J. Eq., 400, Injimctions 5667 Hertzog, Mussina v., 5 Binney, 887, Account 5397 Heslop V. Heslop, 82 Pa. St., 537, Dower 5553 Hess, Everard v., 4 Kulp, 243, Dower 5553 Hess, Gourley v., 8 W. N., 140, Amendments 5914 Hessel ■;;. Bradstreet, 141 Pa. St., 501, Appeals 6176 Hetzell V. Bentz, 8 Phila., 361, Injunctions 5647 Heverin, Houston v., 1 Del. Co. Rep., 154, Injunctions 5677 Hey V. Estabrook, 15 W. N. , 333, Injunctions 5707 Heyl V. City, 31 Leg. Int., 53 ; 10 Phila., 112, Injunctions 5639 Heylin v. Ashton, 7 Phila., 464, Dower 5559 Heylin, Prince v., 1 Atk., 493, Trusts 5749 Heywood v. City, 14 N. Y., 534, Bills of Peace 5843 Hickok V. Assn., 14 W. N., 13, Who may Sue 5303 Hicks, Carroll v., 10 Phila., 308, Injunctions 5G66 Hicks V. Hicks, 3 Atk., 374, Receivers 5599 Hicks, Sunimerson v., 143 Pa. St., 315, Appeals 6183 Hide, Lomax v. , 2 Vernon's Rep., 185, Who Must be Joined 5354 Hieskell v. Gross, 3 Brews., 430, Injunctions 5677, 5689, 5707 Hiester, Bank v., 2 Pears., 255, Interpleader 5863 High's Estate, 36 W. N., 450, Review 5875 Hildebrand v. Beasley, 7 Hoiskell, 131, Cross-bills 5886 Hildyard v. Creasy, 3 Atk. , 303, Amendments 5904 TABLE OF CASES. CY Section Hill V. Commissioners, 1 Pars. , 501, Injunctions 5684 Hill, Elridge v. 3 Johns. Chanc, 381, Bills of Peace 5840 Hill V. Kensington, 1 Pars., 501, Injunctions 5707 Hill, Rwy. Co. v., 84 Pa. St., 463, Execution 6138 Hill, Robertson v., 4 Off. Gaz., 133, Injunctions 5651 Hill, Whelen v., 2 Wharton, 119, Decrees 6095 Hilles, Ex parte, 8 W. N., 419, Execution 6133 Hilton V. Eckersloy, 82 Eng. Law & Eq., 198, Injunctions 5683 Hilton, Haskell v., 80 Me., 419, Demurrers 5944 Hinckem, Paper Co. r., 31 W. N.. 227. Answers 5968 Hinds V. Daley, 8 Dist. Rep., 53, Masters 6035 Hinternieister, Williams r. , 3 Kulp, 499, Receivers 5594 Hintermeister i\ Organ Co., 3 Kulp, 490, Receivers 5594 Hirst V. R. R. Co., 6 Phila., 93, Who may be Sued 5834 Hitohens v. Nougues, 11 Cal., 28, Specific Performance 5731 Hobart, Blodgett v., 18 Vt., 414, Cross-bills 5886 Hobbs, Walton v.. 3 Atk., 19, Answers 5970 Hockenbury v. Carlisle, 5 W. & S., 348 5740 Hooker's Appeal, 4 Pa. St., 497, Marshalling Assets 5833 Hoddesdon, Hall «., 3 P. Wms., 163, Perpetuation 5543 Hodge V. Hudson River Co., 6 Blatoh., 165, Injunctions 5651 Hodges V. Howard, 5 R. I., 149, Specific Performance 5731 Hodges, Jones v., 1 Holmes, 37, Injunctions 5655 Hodges V. Lodge, 2 Kulp, 372, Answers 5970 Hodges, Machette v., 1 Brews., 313, Injunctions 5639 Hodgman v. Rwy. Co., 20 Minn., 48, Bills of Peace 5844 Hoffman v. Hartman, 7 Lane. Law R., 137, Who Must be Joined 5360 Hoffman v. Hartman, 7 Lane. Law R., 137, Preparation 5373 Hoffman v. Steinbeisser, 11 W. N., 383, Receivers 5573 Hoffner's Estate, 161 Pa. St., 381, Trusts 5738 Hoff's Appeal, 3 W. N. , 461, Marshalling Assets 5837 Hogue V. Matlack, 8 C. C, 657, Injunctions 5673 Holbrook, Meara v. , 30 Ohio, 137, Receivers 5599 Holbrook's Estate, 20 W. N., 79, Dower 5552 Holcomb, Vandei-ver v.,6C. E. Green, 105, Cross-bills 5891 Hole V. Harrison, Finch Chanc. Cases, 15, Who Must be Joined 5353 HoU V. HoU, 5 Clark, 108, Injunctions 5637 HoU V. HoU, 1 PhUa., 358, Injunctions 5639 HoUenback, Osborne v. , 8 Kulp, 138, Demun-ers 5945 CVl TABLE OF CASES. Section Hollenbaugh v. Morrison, 9 Watts, 408, Specific Performance 5723 Hollibaugh, Reed v., 3 C. C, 20, Partition 5821 Hollingswortli v. State of Virginia, 3 Dall., 378, Who may be Sued. . . 5325 Hollis V. Edwards, 1 Vem. Ch., 159, Specific Performance 5720 Hollis, Smith v., 83 W. N., 485, Injunctions 5703 Holmes v. Remsen, 7 Johns. Chanc. , 286, Decrees 6095 Holmes' Appeal, 77 Pa. St., 50, Specific Performance 5721 Holmes Ex parte, 5 Cowen (N. Y.), 436, Who may Sue 5311 Holsaple, Brainard v. , 4 Greene (Iowa), 485, Accident 5434 Holt, Wall worth v., 4Myl. & Cr., 619, 635, Who may Sue 5310 Holthaus, Lehnbenter v., 105 U. S., 94, Injunctions 5652 Holthouse's Appeal, 12 Atl., 340, Specific Performance. '. 5720 Holton V. Rwy. Co., 138 Pa. St., Ill, Who may Sue 5313 Helton V. Rwy. Co., 8 C. C, 430, Prosecution 6055 Holton V. Rwy. Co., 138 Pa. St., Ill, Appeals 6164 Holt's Appeal, 98 Pa. St., 257, Specific Performance 5723 Home V. Penna. Institution, 17 W. N., 171, Partition 5775 Honnett v. Thompson, 37 P. L. J. (N. S.), 103, Partition 5799 Honsinger, Goodyear v. , 2 Bissell, 1 , Injunctions 5651 Hood V. Lynn, 1 AUen, 103, Bills of Peace 5842 Hood V. Pimm, 4 Sim., 101, Rehearing 6105 Hood, Smith v., 25 Pa. St., 218, Amendments 5914 Hook V. Dorman, 1 Sim. & Stu., 227, Amendments 591^ Hook V. Dorman, 1 Sim. & Stu. , 227, Demurrers 5944 Hook's Estate, 9 W. N., 320, Examiners 6013 Hooper v. Hooper, 1 Sw. & Tris., 603, Account 5396 Hoover v. Hoover, 6 Pa. St., 351, Marshalling Assets 5833 Hopes' Appeal, 33 P. L. J., 270, Costs 6110 Hopkins, Bank v., Ill Pa. St., 328, Corporations 5493 Hopkins v. Hopkins, 1 Atk., 590, Who Must be Joined 5342 Hopkins v. Lee, 6 Wheaton, 109, Decree 6095 Hopkins, Mc Williams v., 1 Wh.. 378, Perpetuation 5532, 5543 Hopkins, Penn. Bank v., Ill Pa. St., 328, Corporations 5493 Hoppel's Estate, 3 W. N., 79, Examiners 6013 Hoppin, Potter v., 10 Phila., 396, Account 5393 Hopple, Schettiger v., 8 Grant, 54, Accident 5447 Honton, Pillsworth v., 6 Ves., 51, Injunctions 5673. TABLE OF CASES. Cvii. Seetioa Horbach v. Gray, 8 "Watts, 492, Accident 5423^ Horn, Reed v., 143 Pa. St., 337, Accident 5447 Hornby, Tarleton v., 1 Younge & C, 172, Demurrers 5944 Horner v. Craig, 2 W. N., 11, Injunctions 5676- Horn's Appeal, Hedge v., 63 Pa. St., 273, Who may Sue 5308 Horrocks, Wilbraham v., 8 W. N., 285, Interpleader 5863 Horry, Kidd v., 18 W. N., 287, Injunctions 5647 Horsley v. Bell, 1 Brown's Chanc. Cases, 101 n.. Who Must be Joined. 5353 Horton v. Sayer, 39 Law Jom-. Rep. (N. S.) (Exch.), 28 ; 4 Hurlst. & N. Exch., 643, Account 5397 Horton's Appeal, 13 Pa. St., 67, Answers 5970- Horton's Appeal, 13 Pa. St., 67, Decrees. . : 6085 Hostetter v. City, 107 Pa. St., 419, Account 5396, 5397 Hostetter's Appeal, 93 Pa. St. , 132, Masters 6036- Hough V. Doylestown, 4 Brews., 333, Injunctions 5707" House V. Mullen, 22 Wall., 43, Want of Parties 5961 Houston V. Heverin, 1 Del. Co. Rep., 154, Injunctions 5677 Houston's Appeal, 6 W. N., 162, Injunctions 5648' Houston's Appeal, 6 W. N., 162 Quia Timet 5855- Houtz, Ziegler v., 1 W. & S., 533, Specific Performance 5731 Hovenden v. Lord Annesley, 3 Sch. & Lef., 633, Trusts 5750- Hovey v. Stevens. 1 W. & M., 390, Injunctions 5650 How V. Best, 5 Maddock's Chanc. Rep., 19, Who may be Sued 5.328 Howard v. Herbert, 36 Leg. Int., 16, Who may Sue 5304 Howard, Hodges v., 5 R. I., 149, Specific Performance 5721 Howard v. R. R. Co., 69 Pa. St., 489, Account 5396 Howard v. R. R. Co., 6 C. C. Rep., 589, Receivers 5614 Howard, Williams v., 3 Murph. (N. C), 74, Specific Performance 5731 Howe's Estate, 3 Dist. Rep., 267, Specific Performance 5723 HoweU, Beidler v., 8 Phila., 273, Execution 6133 HoweU's Estate, 38 Leg. Int., 478, Examiners 6013 Hoyt V. Hoyt, 143 Pa. St., 633, Injunctions 5661 Hubbell V. Currier, 10 Allen, 333, Quia Timet 5856 Huber v. Burke, 11 S. & R., 338. Specific Performance 5731 Huber, Fidelity Co. v., 7 W. N., 278, Receivers 5573' Huber, Ley v., 3 Watts, 367, Specific Performance 5733 Huddleston v. Township, 7 Atl., 210, Injunctions 5676 Huddy V. Caldwell, 6 W. N., 448, Masters 6027 Hudson V. Barrett, 1 Pars. , 414, Preparation of Bill 5376- '>S Lowe, Whitley v., 3 DeG. & J., 704 : 35 Beav., 431, Receivers 5615 Lowe V. Williams, 3 Sim. & Stu., 575, Preparation of Bill 5383 Lowell Co., Gary v., 33 Off. Gaz., 1009, Injunctions 5651 Lowenstein v. Biernbaum, 8 W. N., 301, Masters 6038 Lowenstein, Carriage Co. v., 4 Kulp, 359, Who may sue 5303 Lowenstein v. Ins. Co., 133 Pa. St., 410, Appeals 6183 Lower's Appeal, 1 Walker, 404, Masters 6035 Lowrie t;. Plitt, 3 W. N., 675, Injunctions 5696 Lowry, Cattell v., 45 Iowa, 478, Bills of Peace 5844 Lowry v. MoKinney, 68 Pa. St., 294, Marshalling Assets 5836 Lowry, Miller v. , 5 Phila. , 303, Injunctions 5699 Lo.vry V. Optical Co., 161 Pa. St., 133, Receivers 5580 Lowi y V. Read, 3 Brewster, 453, Injunctions 5703 Lovvten v. Mayor, 2 Merivale, 395, Execution 6140 Lowten, Parkhurst ?;. , 1 Merivale, 391, Demurrers 5944 Lowther v. Lowther, 13 Ves., 95, Specific Performance 5730 Luburg's Appeal, 23 W. N., 454, Injunctions 5639 Ludlow, Blood v., 150 Pa. St., 1, Account 5394 Ludwick, Reitenbaugh v., 31 Pa. St., 131, Accident 5450 Ludwig i\ Leonard, 9 W. & S., 44, Specific Performance 5731 Lumber Co. v. Soap Co. , 3 Dist. Rep. . 803, Receivei-s 5,580 Lumley v. Wagner, 1 DeG. M. & G., 604, Injunctions 5669 Lumley v. Wagner, 1 DeG. M. & G., 604, Specific Performance 5723 Lumsden v. Eraser, 1 Mylne & Craig, 589, 602, Want of Parties 5960 Lungren v. Pennell, 10 W. N., 297, Preparation of Bill 5384 Luther v. Wagner, 107 Pa. St., 343, Dower .5.553 Lutwich V. Atty.-Genl., 2 Atk., 223, Who may be Sued 5324 Lutz, Heinz ■;;., 146 Pa. St.. 592, Injunctions 5661 Lutz V. Lutz, 34 P. L. J., 260, Injunctions 5641 Luzerne v. Bank, 143 Pa. St., 131, Partition 5823 Lybe's Appeal, 106 Pa. St. , 626, Injunctions 5690 Lynch v. Jennings, 6 W. N., 500, Injunctions 5641 Lynch, Lindsey v., 3 Sch. & Lef., 9, Amendments 5904 Lynch v. Lynch, 133 Pa. St., 432, Dower 5553, 5558- Lynch, Miller v., 149 Pa. St., 460, Injunctions 5673; TABLE OP CASES. CXXlll. Section Lyne v. PenneU, 1 Sim. (N. S.), 113, Interpleader 5867 Lynn, Hood u, 1 AUen, 103, Bills of Peace 5842 Lynn, Spearing v. , 2 Vern. , 376, Amendments 5914 Lyon, Swayne v., 67 Pa. St., 436, Specific Performance 5733 Lyon's Appeal, 61 Pa. St., 15, Appeals 6178 M. MacDonald v. Furbush, 26 W. N. , 120, Injunctions 5648 Maoauley, Thrope v., 5 Mad., 218, Amendments 5913 Macclesfield v. Davis, 3 Ves. & B., 16, Specific Performance 5730, 5721 Macey v. Childress, 2 Tenn. Ch., 441, Cross-bills 5889- Machado, King of Spain v., 4 Russ., 235, Demurrers 5944 Machette v. Hodges, 1 Brewster, 313, Injunctions 5639- Machine Co. , Ewing v. , 9 "W. N. , 372, Injunctions 5666 Mackinson v. Mackinson, 2 Grant, 286, Marshalling Assets 5834 Macknett, Warner v., 3 Phila., 325, Dower 5559- Mackreth, Motteux v. , 1 Ves. Jr. , 143, Amendments 5897 Macloon, School District v., 4 Wise, 79, Specific Perfoi-mance 5731 Macready v. Hart, 30 Leg. Int., 52, Decrees 6087 Madison, Dean v., 9 Wise, 403, Quia Timet 5855 Madox V. Jackson, 8 Atk., 406, Who Must be joined 5360 Madrazo, Georgia v., 1 Peters, 110, Who may be fined 5335- Magee, Fricke v., 10 W. N., 50, Amendments 5905 Magowan, New York Co. v., 23 Fed. Rep., 596, Injunctions 5655 Magrath v. Cooper, 10 W. N., 173, Injunctions 5641 Maguire v. Heraty, 163 Pa. St., 381, Specific Performanc 5721, 5723 Maguire v. Heraty, 163 Pa. St., 388, Want of Parties 5961 Maguire's Appeal, 103 Pa. St., 130, Costs 6110 Mailer's Appeal, 2 Central Rep., 846, Injunctions 5647 Maitland, Kilduflfe i7., BOW. N., 46, Trusts 5747 Majestre, Long v., 1 Johns. Ch. , 805, Demurrers 5944 Male V. Roberts, 3 Esp. Rep., 163, Accident 5416 Malone, R. R. Co. v., 85 Pa. St., 25, Amendments 5904 Malone v. R. R. Co., 157 Pa. St., 431, Appeals 6183 Maltby, Meux v., 2Swanton's Chanc Rep., 277, Who Must be Joined. . 5353 Mander, Crawfoot v., 9 Sim., 396, Revivor 5926 Manderson v. Bank, 28 Pa. St., 379, Who may Sue 5309 Manderson v. Bank, 38 Pa. St., 379, Corporations 5515 Manderson v. Bank, 38 Pa. St., 379, Injunctions 5701 .CXXIV TABLE OP CASES. Section Manhattan v. Granley, 11 W. N., 255, Who may Sue 5305 Manice, MiUer?;., 6 HiU, 114, Decrees 6095 Manks, Atkinson v., 1 Cowen, 691, 703, Interpleader 5864, 5865, 5866 Manners v. Library Co., 93 Pa. St., 165, Demurrers 5957 Manners, Stanhope v., 2 Eden, 197, Corporations 5535 Manning, Adams v., 10 W. N., 448, Preparation of Bill 5884 Manning v. Klein, 1 Dist. Rep., 278, Injunctions 5703 Manning, McCullough v., 132 Pa. St., 43, Specific Performance 5720 Manfg. Co. v. Gas Co., 139 Pa. St., 448, Injunctions 5639 Manfg. Co., Ins. Co. v., 34 W. N., 81, Interpleader 5863 Manfg. Co. v. Iron Co., 14 W. N., 304, Examiners 6013 Manfg. Co., Oil Co. v., 157 Pa. St., 343, Costs 6110 Manfg. Co., Rowan v., 33 Conn., 1, Cross-bills 5891 IManfg. Co., Williams v., 3 Md. Chanc, 419, 452, Who may Sue 5311 Marble, Hardy v., 10 Fed. Rep., 752, Injunctions 5055 March, Ballou v., 133 Pa. St., 64, Specific Performance 5720 Marcos v. Pebrer, 3 Sim., 330 n.. Preparation of Bill 5384 Maris, Taylor v., 5 Rawle, 51, Marshalling Assets 5837 Market Co., Mollvain v., 3 W. N., 308, Answers 5968 Harket Co. v. R. R. Co., 142 Pa, St., 580, Corporations 5484 Marks V. Corn, 11 Fed. Rep., 900, Injunctions 5655 Marks, Hamilton v., 5 DeG. & S.. 638, Interpleader 5866 Marlboro', Hunter v., 2 Woodbury & Minot, 168, Rehearing 6102 Marseilles, Rwy. Co. v., 84 lU., 145, Who may Sue 5311 Marsh v. Pier, 4 Kawle, 273, Decrees 6095 Marsh v. Supervisors, 43 Wise, 503, Bills of Peace 5844 Marshall v. Colman, 3 Jac. & Walker (Chanc. Cas.), 266, Account 5399 Marshfield, Talbot ■;;. , L. R. 1 Eq. , 6, Production 6008 Martin, Clark v., 49 Pa. St., 289, Injunctions 5686 Martin, Clark v., 49 Pa. St., 289, Decrees 6089 Martin v. Rwy. Co., 8 Phila., 816, Injunctions 5701 Martin's Appeal, 13 W. N., 167, Who may be Sued 5834 Martin's Estate, 1 Chester Co. Rep. , 512, Partition 5822 Martz, Patterson v., 8 Watts, 374, Specific Performance 5731 Marvine v. Drexel, 33 Leg. Int., 284 ; 1 W. N., 333, Costs 6117 Masonry. Friok, 12 W. N., 570, Who may Sue 5303 Massey v. City, 1 W. N., 140, Injunctions 5684 Massey v. Gillelan, 1 Paige Ch., 644, Who may Sue 5804 Masson's Appeal, 70 Pa. St. , 26, Accident 5453 TABLE OF CASES. CXXT Seetiou- Masson's Appeal, 70 Pa. St., 26, Injunctions 5673, 5691 Master v. Kirton, 3 Ves. Jr., 75, Account 5399 Mather's Appeal, 1 Cent. Rep.. 342. Account , 5395 3Iathews v. Stephenson, 6 Pa. St., 499, Want of Parties 5960 Mathias, McGee v., 4 WaUace, 143, Who may be Sued 5326 Matlack, Hogue w., 8 C. C, 657, Injunctions 5673 ^latlack V. Ins. Co., 3 Dist. Rep., 138, Amendments 5904 iMattes V. Ruth, 7 Luz. L. Rep,, 228, Amendments 5904 Matthers, Pember v., 1 Bro. C. C, 5.3, Answers 5970 Matthews v. Scranton, 8 Luz. Leg. Reg., 68, Execution 6134 JIatthews' Appeal, 104 Pa. St., 444, Appeals 6175 Mattheys, Cooper v., 8 Law Rep. (O. S.), 413, Injunctions 5655 Matthis V. Cameron, 62 Mo., 504, Bills of Peace 5844 Maule V. Duke of Beaufort, 1 Russell's Kep., 349, Who Must be Joined. 5354 Maulfair, Ublern, 23 Pa. St., 481, Answers 5968 Maurer's Appeal, 148 Pa. St., 272, Appeals 6164 Maxwell V. Wettenhall, 3 P. Wms. , 26, Trusts .'■)751 May, Speed v.. 17 Pa. St., 94, Receivers 5594 Maybin, Loughlin v. , 39 Leg. Int. , 256, Execution 0133 Mayer, Bldg. Assn. ■u., 45 Leg. Int., 346, Who may be Sued 5334 Mayer, Bldg. Assn. v., 2 Montg., 41, Production 6003, 6006 Mayer v. McCamant, 8 C. C, 75, Preparation of Bill 5372 Mayer's Appeal, 73 Pa. St. ,164, Injunctions 5629 Maynard, Brady v., 23 Leg. Int., 276 ; 34 Leg. Int., 320, 800, Trusts. . . 5740 ilayor, ■ Atty.-Genl. v., 4 Myhie & Craig, 17. Want of Parties 5960 Mayor, Bond v., 4 C. E. Green (N. J.), 376, Bills of Peace 5844 Mayor, Liebstein u., 9 C. E. Green (N. J.), 200, Bills of Peace 5843 Mayor, Lowten v., 2 Merivale, 395, Execution 6140 Mayor v. New York, 63 N. Y., 455, Accident 5448 Mayor, People v., 10 Abbott's Prac, HI, Receivers 5583 Mayor v. Pilkington, 1 Atk., 383, Preparation of Bill 5384 Mayor, R. R. Co. ■«., 9 N. J. Eq., 434, Bills of Peace 5840 Mayor, Wilson v., 4 E. D. Smith (N. Y.), 675, Bills of Peace 5842 Maynard, Brady v., 23 Leg. Int., 276 ; 24 Leg. Int., 230, 300, Trusts. . . 5740 Mayst). Dwight, 82 Pa. St., 463, Accident 5433 Mazet V. City, 137 Pa. St., 548, Answers 5984 McAleese, Harrlgan v., 16 Atl., 31, Specific Performance 5733 McAlevy, Farquhar u, 143 Pa. St., 233, Appeals 6172 •CXXVl TABLE OP CASES. Section MoAndrew v. McAndrew, 3 C. P. Rep., 174, Quia Tinvet 5856 McAninchu. Laughlin, 13 Pa. St., 376, Accident 5417 McAuley's Appeal, 77 Pa. St., 398, Corporations 5527 jicAvoy, Barry v., 10 Phila., 99, Preparation of Bill 5376 ilcBarron v. Glass, 30 Pa. St., 138, Tmsts 5736 McBean v. Chandler, 9 Heiskell (Tenn.), 350, Bills of Peace 5814 McBride v. Patton, 9 Phila., 271, Amendments 5910 McCaflfrey's Appeal, 105 Pa. St. , 253, Injunctions 5876 McCaffrey's Appeal, 15 W. N., 12, Costs 6110 McCahan v. Reamey, 33 Pa. St., 535, Account 5397 McCall V. Barrie, 14 W. N., 419, Injunctions 5635 McCall V. Barrie, 16 W. N., 83, Costs 6114 McCaUum, Germantown Water Co. v., 5 Phila., 93, Injunctions 5655 McCallumv. Germantown Water Co., 54 Pa. St., 40, Injunctions. 5655, 5677 MoCamant, Mayer u., 8 C. C. Rep., 75, Preparation of BiU 5373 McCameron, Shaw v., 11 S. & R., 253, Mai-shalling Assets 5833 McCandless' Appeal, 98 Pa. St. , 493, Partition 5776 McCarrell v. Mylliiis, 141 Pa. St., 514, Execution 6133 McCarteo v. Camel, 1 Barb. Chanc, 455, Dower 5564 McCarter v. Watt, 3 Leg. & Ins. Rep., 59, Costs 6111 McCarthy, Smith v., 56 Pa. St., 359, Injunctions 5707 McCarthy v. Winslow, 1 W. N., 515, Specific Performance 5723 MoCarty's Appeal, 110 Pa. St., 379, Receivers 5614 McCauley, Volmer v., 7 Phila., 383, Account 5400 McCauley's Appeal, 86 Pa. St. , 187, Appeals 6181 McCay v. Black, 36 Leg. Int., 471, Receivers 5598 McCay v. Black, 14 PhUa., 635, Receivers 5608 McCay v. Black, 36 Leg. Int. , 471, Masters 6034 McCleary , Thompson v., 159 Pa. St. ,189, Receivers 5614 McCleister, Scott «., 12 W. N., 336, Injunctions 5639 McClure v. Fairfield, 153 Pa. St., 411, Quia Timet 5855 McClure v. McClure, 1 Pa. St., 374, Specific Performance 5731 McClure v. Rwy. Co., 33 Leg. Int., 448, Corporations 5481 McClurg's Appeal, 58 Pa. St., 51, Injunctions 5666 McConaby, Turnpike Co. v., 16 S. & R., 140, Corporations 5493 MoConkey, Temple v., 1 Pitts., 367, Specific Performance 5721 McConnaughy, Morris v., 3 Dallas, 189, Marshalling Assets 5834 McConnaughy, Pennoyer v., 140 U. S., 1, Who may be Sued 5336 McConnell, Smith v., 17 lU., 139, Bills of Peace 5840 TABLE OJF CASES. CXXVll Section JlcConomy u. Reed, 152 Pa. St., 43, Masters 6034 TMcCormick's Appeal. 57 Pa. St., 54, Marshalling Assets 5836 jMcCoy r. McOIurtrie, 12 Phila., 180, Interpleader 5863 McCoy's Estate, 29 W. N., 412, Partition 5776 jMcCray v. McCray, 30 Barb., 833, Specific Performance 5721 McCready, Meader v., 1 Molloy, 119, Costs 6112 McCue V. Johnston, 35 Pa. St., 306, Specific Performance 5721, 5723 McCuUen v. Ins. Co., 2 Dist. Rep., 361. Interpleader 5862 McCuUough V. Butt, 39 W. N., 123, Answers 5970 McCullough, Bright v., 1 Leg. Rec, 281, Preparation of Bill 5384 TVIcCuUough, Harrison v., 32 Leg. Int., 354, Specific Performance 5723 McCullough V. Manning, 132 Pa. St., 43, Specific Performance 5720 McCuUough's Appeal, 1 Mona., 700, Amendments 5906 BlcCiaiy, King v.. 38 Pa. St., 76, Injunctions 5689 McDonald v. Bromley, 6 Phila., 303, Injunctions 5655 McDonald, Crane v., 23 N. E. Rep., 991, Interpleader 5863 McDonald, EUwand v. , 8 Beavan, 14, Production 6004 McDonald, Kirkpatrick v., 11 Pa. St., 387, Trusts 5735 McDonald, Miller v. , 8 W. N. , 502, Amendments 5904 McDonald v. Murphree, 45 Miss., 705, Bills of Peace 5842 McDonough, Bullock v., 3 Pears., 195, Injunctions 5713 IMcDonough, DuflE v., 155 Pa. St., 10, Execution 6141 McDowell, Greenlee v., 4 Ired. Eq. (N. C), 481, Rehearing 6103 McDowell's Appeal, 4 Penny., 384, Receivers 5598 McDowell's iippeal, 123 Pa. St., 381, Injunctions 5647 McEldowney, Hammer v., 46 Pa. St., 334, Specific Performance 5720 McEUiinney v. McElhinney, 13 W. N., 194, Who may Sue 5304 McElrath v. R. R. Co., 28 Leg. Int., 197, Who Must be Joined 5359 McElrath v. R. R. Co., 68 Pa. St., 37, Masters 6027 McElroy, Walters v., 31 W. N., 131, Injunctions 5672 McElroy, Walters v. , 151 Pa. St. , 549, Injunctions 5678 McElwee -y. Rourke, 43 Leg. Int., 280, Costs 6114 McFadden, City -y., 15 W. N., 269, Injunctions 5676, 5685 McFaddeni;. Nolan, 39 Leg. Int., 118, Receivers 5572 McFarland v. Brown, 11 S. & R., 121, Who may Sue 5305 McFarson's Appeal, 11 Pa. St., 503, Specific Performance 5723 McGarry v. Crispin, 3 Clark, 25, Who may Sue 5303 JlcGee V. Mathias, 4 Wallace, 143, Who may be Sued 5326 McGeorge v. Iron Co., 32 Leg. Int., 373, Corporations 5481 CXXVlll TABLE OF CASES. Section;, McGheehen v. Duffleld, 5 Pa. St., 497, Account 539& McGibhenyi;. Gas Co., 139 Pa. St., 193, Appeals 6181 MoGinty v. McGinty, 68 Pa. St., 38, Trusts 5736, 5744 McGowin v. Remington, 13 Pa. St., 56, Specific Performance. . . 5720, 5721 McGrath, "Wood v.. 150 Pa. St., 451, Injunctions 5707 McGuire v. Eames, 15 Blatch., 312, Injunctions 5655 MoGuire, Sage u., 4 W. & S., 328, Specific Performance 5721 Mcllvain v. Church, 2 Woodward, 393, Amendments 5904 MoIIvain v. Market Co., 2 W. N., 208, Answers 5968 Mclntyre v. Perkins, 9 Phila., 484, Injunctions 5699 MoKee v. Jones, 6 Pa. St., 425, Trusts 5733 McKeehan, Pierce v.,SW. & S., 280, Trusts 5735 McKinney, Lowry v., 68 Pa. St., 294, Marshalling Assets 5836 McLain, Roundtree v., 1 Hempst. C. C, 245, Specific Performance 5721 McLaughlin v. Jones, 3 W. N. , 203, Injunctions 570T McLoon, Ins. Co. v., 14 Allen, 351, Quia Timet 5855 MoLoughlin, Mills v., 27 W. N., 573, Costs 6111 MoManes, City v., 42 Leg. Int., 160, Rules 5187 McManes. Wistar v., 54 Pa. St., 818, Injunctions 5648 McManes, Wistar v., 54 Pa. St., 318, Demurrers 5946 McMeen, Springs Co. v., 161 Pa. St., 639, Corporations 5492 MoMiohael v. Skilton, 13 Pa. St., 217, Partition 5776 McMiUan, Woods v., 32 P. L. J., 343, Prosecution 6061 MoMillen v. Hawthorn, 30 P. L. J., 378, Revivor 5926 McMorris v. EUiot, 8 Price, 674, Preparation of Bill 5382 McMuUin, Warner v., 131 Pa. St., 370, Appeals 6164 McMurray u Davis, 1 W. N., 142, Costs 6114 MoMurray, Hughes v., 6 Phila., 200, Preparation of Bill 5373 McMurtrie, McCoy v. , 13 Phila. , 180, Interpleader 5863 McNeel's Estate, 68 Pa. St., 412, Review 5874 McNickle v. Henry, 8 Phila., 87, Account 5393 McNickle, Henry v. , 8 Phila. , 87, Dower 5558 McNickle u Henry, 8 Phila., 87, Partition 5800 McShane, R. R. Co. v., 3 Dillon C. C. Rep., 304, BiUs of Peace 5843 MoVey v. Brendal, 7 Lane. , 899 ; 5 Lane. , 850, Answers 5970 McVey v. Brendell, 39 W. N., 1, Injunctions 5661 MoWilliams v. Hopkins, 1 Wh., 278, Perpetuation 5583, 5543 Header v. McCready, 1 MoUoy, 119, Costs 6112 Meadville's Appeal, 3 Cent. Rep., 532, Injunctions 5641 TABLE OF CASES. CXxix Section Meal, "Wych v., 3 P. "Wms., 310, Who may be Sued 5338 MeaJey's Estate, 3 W. N., 370, Prosecution 6060 Means' Appeal, 85 Pa. St., 75, Corporations 5502 Meara v. Holbrook, 20 Ohio, 137, Receivers 5599 Hears, Wagner v., 3 Sini.^ 127, Who may Sue 5817 Meason v. Kaine, 63 Pa. St., 335, Specific Performance 5720 Mechling v. Bridge Co. , 1 Grant, 416, Injunctions 5676 Meckley's Estate, 20 Pa. St., 481, Accident 5417 Meck's Appeal, 97 Pa. St., 313, Quia Timet 5855 Megargee v. Phillips, (MS.) C. P. No. 2, June Term 1887, No. 784, Corporations 5494 Mehaffey's Appeal, 4 Penny. , 502, Quia Timet 5855 Mellin v. White, 63 Law J. R. (N. S.), 666, Injunctions 5663 Mellish's Estate, 1 Pars., 482, Trusts 5749 Meloney, Head v., Ill Pa. St., 102, Accident 5453 Meloney, Head v., Ill Pa. St., 99, Revivor 5926 Mendenhall v. R. R. Co., 36 Pa. St., 148, Corporations 5525 MendenhaU v. R. R. Co., 36 Pa. St., 145n., Trusts 5733 Mendenhall, Zimmerman v. , 3 MUes, 402, Who may Sue 5305 Mendelsohn, Thompson v., 5 Fish., 187, Injunctions 5651 Mengas' Appeal, 19 Pa. St., 223, Masters 6037 Mennig, Trexler v., 2 W. N., 680 ; 33 Leg. Int., 321, Masters 6034 Mentz V. Ins. Co., 79 Pa. St., 479, Account 5396 Merchants' Co., Atty.-Genl. v., 1 Mylne & Keen, 189, Preparation 5384 Merchants' Co., Atty.-Genl. v., 1 Mylne & Keen, 189, Want of Parties. 5960 Mercur v. Jackson, 3 C. C, 387, Partition 5769, 5775 Meredith, Beaumont v., 3 Vesey & Beames, 181, Who Must be Joined. 5346 Merle, Dias v., 2 Paige, 494, Production 6008 Merrell v. Merrell, 5 Kulp, 125, Specific Performance 5721 Merrill v. Humphrey, 24 Mich., 170, Bills of Peace 5844 Merrill, Jones v., 8 OfiE. Gaz., 401, Injunctions 5651 Merrill's Appeal, 16 W. N., 491, Dower 5558, 5564 Merrill's Appeal, 16 W. N. , 346, Specific Performance 5720 Merriman v. Munson, 134 Pa. St., 114, Trusts 5747 Merriman v. Munson, 134 Pa. St., 114, Amendments 5906 Messimer's Appeal, 92 Pa. St., 168, Receivers 5581 Messinger's Appeal, 43 Leg. Int., 101, Masters 6027, 6034 Metcalf , Wilson v., 1 Beavan, 263, Execution 0139 Meter Co., Wagner v., 2 C. C, 113, Masteirs 6036 ■ 9 CXXX TABLE 01^" CASES. Motion Metz V. Farnham, 8 Pbila., 267, Account ^. 5400 Meurer, Borland v., 139 Pa. St., 513, Appeals 6164 Meux V. Maltby, 2 Swanton's Ch. Rep., * 277, 286, Wlio Must be Joinerl. 5353 Mevey's Appeal, 4 Pa. St. , 80, Marshalling Assets 5886 Meyer v. City, 2 Legal Record, 39, Dower 5564 Miame Co., Taylor v., 6 Ohio, 176, Who may Sue 5311 Michael v. Forsythe, 2 Chest. Co. Rep., 32, Who may Sue 5303 Mick V. Mick, 10 Wend., 379, Dower 5557 Micklethwait, Walker v., 1 Drewry & Smale, 49, Execution 6135 Middleton, Copis v., 2 Maddock's Ch. Rep., 410, Who Must be Joined.. 5354 Middleton v. Telegraph Co., 44 Leg. Int., 366, Masters 6038 Midgeley, Foulds v., 1 Ves. & B., 138, Perpetuation 5542 Midgeley, Wood v., 5 DeG. M. & G., 41, Specific Performance 5726 Midgeley, Wood v., 5 DeG. M. & G., 41, Demurrers 5941 Miles, Congregation v., 4 Watts, 146, Specific Performance 5722 Miles V. Stevens, 3 Pa. St., 21, Specific Performance 5721 Miller, Burke v. , 4 Gray, 114, Decrees 6095 Miller v. Fenton, 11 Paige, 18, Cross-bills 5891 Miller, Fish v., 5 Paige, 26, Replications 5089 Miller v. Gorman, 88 Pa. St., 309, Injunctions. 5700 Miller v. Henlan, 51 Pa. St., 265, Specific Performance 5721 Miller, Jewett v., 10 N. Y., 402, Receivers 5609 Miller, Lantern Co. v., 8 Fed. Rep., 314, Injunctions 5651 Miller v. Lowry, 5 Phila., 202, Injunctions 5699 MiUer v. Lynch, 149 Pa. St., 460, Injunctions 5678 Miller v. Manice, 6 Hill, 114, Decrees 6095 Miller v. McDonald, 8 W. N., 502, Amendments 5904 Miller v. Pulp Co. , 1 Hohnes, 142, Injunctions 5653 Miller, Richardson v., 1 Sim., 138, Who may Sue 5295 Miller v. Schneider, 5 Rawle, 140, Partition 5776 Miller v. Walsh, 1 Northam., 194, Answers 5970 Miller v. Warmington, 1 Jac. & Walker, 473, Partition 5771 Miller v. Wheatley, 1 Sim. , 296, Amendments 5913 Miller's Appeal, 35 Pa. St., 481, Marshalling Assets 5837 Miller's Estate, 136 Pa. St., 349, Account 5394 Miller's Estate, 82 Pa. St., 118, Marshalling Assets 5887 Milligan's Appeal, 82 Pa. St., 389, Review 5875 Millington v. Fox, 3 Mylne & Craig, 352, Costs 6112 JVIills, International Co. v., 22 Fed. Rep., 659, Injunctions 5654 TABLE OF CASES. CXXXl Seotioa Mills V. McLoughlin, 27 W. N., 573, Costs 0111 ililne's Appeal, 81 Pa. St., 54, Injunctions 5691 ^nine's Appeal, 99 Pa. St., 490, Review 5874 Milne's Appeal, 17 W. N. , 559, Production 6005 Miltenberger v. Rwy. Co., 106 U. S., 286, Receivers 5602 Milvraukee Co., Gelpeke «., 11 Wise, 454, Execution 6135 Mining Co., Phillips v., 7 Phila., 619, Specific Performance 5720 Minnig's Appeal, 82 Pa. St. , 373, Injunctions 5673 :».Iirkil V. Morgan, 184 Pa. St., 144, Injvinctions 5677 ■Mirkil V. Morgan, 46 Leg. Int., 444 ; 25 W. N., 532 ; 134 Pa. St., 144, Masters 6034 ilirkil V. Morgan, 134 Pa. St., 153, Decrees 6098 Miskey's Appeal, 18 W. N., 100, Costs 6121 Mitchel V. Reynolds, 1 Sm. Lead. Cases, * 508, Injunctions 5666 MitcheU v. Draper, 9 Ves. Jr. , 208, Execution 6140 MitcheU, Kemp v., 36 Ind., 256, Cross-bills 5891 MitcheU v. Lennox, 2 Paige, 280, Want of Parties 5961 Mitchell V. Steinmetz, 97 Pa. St., 251, Specific Performance 5738 Mitchell's Appeal, 60 Pa. St., 502, Appeals 6179 Mitcheson v. Harlan, 3 Phila., 385, Injunctions 5707 Mitcheson v. Harlan, 3 Phila., 396, Revivor, 5926 Mitcheson's Estate, 11 W, N., 240, Review 5874 Mittower, Zentmyer v. , 5 Pa. St., 403, Accident 5449 Moat. Morison v., 9 Hare, 241, Injunctions 5667 Moffatt r. Farquharson, 2 Brown's Ch. Cases, 338, Who Must be Joined. 5841 Mole V. Smith, Jacob's Ch. Rep., 494, Preparation of Bill 5384 Molesworth, Gregory v., 3 Atk., 626, Who may Sue 5397 MoUinger, Sauer v., 138 Pa. St., 338, Appeals 6164 Molly V. Ulrich, 133 Pa. St., 41, Accident 5450 Moltby, Black v., 26 W. N., 97, Who may Sue 5305 Monestier v. Monestier, 17 W. N., 255, Partition 5823 Montgomery's Appeal, 77 Pa. St. , 370, Trusts 5749 Moodalay v. Morton, 1 Bro. C. C, 469, Discovery 5470 Mooney, Ward v., 10 W. N., 256, Injunctions 5702 Moore, Blondheim v., 11 Maryland, 865, Receivers 5573 Moore, Church v., 10 Pa. St., 273, Execution 6145 Moore, Mowday v., 133 Pa. St., 598, Injunctions. . . 5677 Moore v. Pierson, 6 Iowa, 379, Specific Performance 5721 Moore v. Rwy. Co., 3 Phila., 310, Injvinctions, , oTC> CXXxii TABLE OF CASES. Section Moore, Simpson v., 30 Barb., 637, Who may Sue 5311 Moore, Sloan v., 37 Pa. St., 317, Account 5399 Moore, Sloan v., 37 Pa. St., 217, Receivers 5571 Moore, Sloan v., 37 Pa. St., 317 Receivers 5572 Moore, Sloan v. 37 Pa. St., 217, Injunctions 5698 Moore, Van Sandau v., 1 Russ., 441, 458, Who may Sue 5307 Moore, Van Sandau v., 1 Russell, 465, Who Must be Joined 5346 Morck V. Gas Co., 8 C. C. , 131, Preparation of BiU 5376 Morgan, Bumey ■«., 1 S. &S., 358, Revivor 5932, 5923 Morgan v. Daniels, 153 TJ. S., 123, Injunctions 5653 Morgan, Franz v., 6 Phila., 8, Marshalling Assets 5834 Morgan v. Graham, 1 Woods C. C, 124, BUls of Peace 5843, 5844 Morgan v. Harris, 3 Brovra Ch., 123, Demurrers 5940 Morgan, Lariviere v., 41 Law Jour. (Ch.), 746, Who may be Sued 5334 Morgan v. Lewis, 46 Ohio, 1, Who may Sue 5311 Morgan, Mirkil ?;. , 134 Pa. St. , 144, Injunctions 5677 Morgan, Mirkil v., 46 Leg. Int., 444 ; 25 W. N., 533 ; 134 Pa. St., 144, Masters 6034 Morgan, Mirkil v., 134 Pa. St., 153, Decrees 6093 Morgan v. Scott, 36 Pa. St., 51, Specific Performance 5721, 5733 Morgan v. Scudamore, 3 Ves. Jr., 313, Revivor 5922 Morgan's Appeal, 33 W. N., 538 ; 135 Pa. St., 563, Masters 6034 Morgan's Appeal, 19 W. N., 19, Appeals 6183 Morio's Appeal, 4 Penny., 398, Masters 6031 Morio's Appeal, 4 Penny., 398, Prosecution 6061 Morison v. Moat, 9 Hare, 241, Injunctions 5667 Morocco Co. v. Walton, 3 Del., 102, Masters 6031 Moroney v. Townsend, 5 Phila., 357, Specific Performance 5721 Morrett v. Westerne, 2 Vernon's Rep., 663, Who Must be Joined 5354 Morris v. Boley, 1 W. N., 303, Bills of Peace 5841 Morris, Crista, 2 W. N., 620, Injunctions 5700 Morris, Huss v., 63 Pa. St., 367, Accident 5443, 5445 Morris v. McConnaughy, 3 Dall., 189, Marshalling Assets 5834 Morris v. Morris, 3 PhilHps Chanc. Cases, 305, Perpetuation 5534 Morris v. Olwine, 33 Pa. St., 441, Marshalling Assets 5837 Morrison v. Bldg. Assn. , 1 Lack. Jur. , 437, Receivers 5573 Morrison, Hollenbaugh v., 9 Watts, 408, Specific Performance 5723 Morrison v. Searight, 4 Baxter (Tenn.), 479, Cross-bills 5891 Morrow, Thompson u. , 5 S. & R., 289, Dower 5559 TABLE OF CASES. CXXXiii Section Mortimere, Rankin v., 7 Watts, 373, Accident 5418 Mortland v. Mortland, 31 W. N., 152 ; 151 Pa. St., 594, Masters 6030 Mortlock, Vissan v., 3 Mer., 479, Amendments 5913 Morton, Moodalay v. , 1 Bro. CO., *469, Discovery 5470 Moser v. Libenguth, 3 Rawle, 428, Accident 5444 Moss' Estate, 138 Pa. St. , 646, Marshalling Assets 583? Mott V. R. R. Co., 30 Pa. St., 9, Injunctions 5684 Mott, Winton v., 4 Luz. L. Reg., 71, Masters 6034 Mott, Winton v., 4 Luz. L. Reg., 71, Costs 6110 Motteux V. Mackreth, 1 Ves. Jr., 148, Amendments 5897 Mowday v. Moore, 133 Pa. St. , 598, Injunctions 5677 Mowrey v. R. R. Co., 4 Bissell, 78, Injunctions 5701 Moyer v. Livingood, 2 Woodward, 317, Demurrers 5947 Muirhead v. Clabby, 7 Phila., 345, Specific Performance 5728 Mules, Smith v., 9 Hare's Rep., 556, Account 5399 Mullen V. Doyle, 147 Pa. St., 512, Trusts 5750 Mullen, House v. , 32 Wallace, 43, Want of Parties 5961 Mullin, R. R. Co. v., 23 W. N., 508, Injunctions 5678 Mulvany, Corson v., 49 Pa. St., 88, Specific Performance 5730, 5733 Mundell, Devine v., 13 W. N., 267, Masters 6038 Mimnell, Van Horn v., 145 Pa. St., 497, Specific Performance 5731 Munson, Merriman v., 134 Pa. St., 114, Trusts 5747 Munson, Merriman v., 134 Pa. St., 114, Amendments 5906 Munson v. Tryon, 6 Phila., 395, Injunctions 5672 Murphree, McDonald v., 45 Miss., 705, Bills of Peace 5843 Murphy v. Bedford, 35 Leg. Int., 262, Masters 6039 Murphy v. Borland, 92 Pa. St., 86, Dower 5553 Murphy, Borland «., 4 W. N., 473, Dower 5553, 5558 Murphy, Cote v., 159 Pa. St., 431, Injunctions 5683 Murphy, Kelsey v., 36 Pa. St., 78, Decrees 6095 JIurray v. Coster, 30 Johns., 576, Dower 5564 Murray, Hallahan v., 3 W. N., 44, Who may Sue 5303 Jlusurus Bey, Gladstone v.. 1 Hemming & Miller Chanc. Rep., 495, Who may be Sued 5324 Mussina v. Hertzog, 5 Binney, 387, Accoxmt 5397 Muzzarelli v. Hulshizer, 35 W. N., 122, Injunctions 5686 Uyerv. City, 2 Leg. Rec, 39, Dower 5564 Myers v. Bryson, 33 W. N.. 353, Who Must be Joined 5343 Myers V. Bryson, 33 W. N., 253, Preparation 5373 CXXxiv TABLE OF CASES. Section. Myers v. Bryson, 158 Pa. St., 247, Account 5391 Myers v. Bryson, 158 Pa. St., 355, Amendments 5914 Myers v. Bryson, 158 Pa. St., 255, Want of Parties 5961 Myers v. Bryson, 33 W. N., 353, Cos"ts 6110 Myers, Burke v., 10 W. N., 481, Injunctions 5676 Myers v. Coal Co., 3 Kulp, 137, Answers 5978 Myers v. Myers, 35 Pa. St., 100, Trusts 5737 Myers, Pickersgill v., 99 Pa. St., 603, Receivers 5610 Myers, Salt Co. v., 1 W. N., 377, Injunctions 5651, 5653 Myers, Wisener v., 3 Dist. Rep., 687, Receivers 5611 MyUins, McCarreU v., 141 Pa. St., 514, Execution 6133 Myttin, Cressettt;., 3Bro. C. C, 481 ; 1 Ves. Jr., 449, Preparation 5388 N. Nace V. Boyer, 30 Pa. St., 99, Accident 5431 Nagle V. Newton, 23 Gratton (Va.), 814, Accident 5453- Naglee's Estate, 53 Pa. St., 154, Replications 5994 Nail Co. V. Dulaney, 140 Pa. St., 205, Injunctions 5661 NaUor v. Stanley, 10 8. & R., 450, Marshalling Assets 5836- Nalder v. Hawkins, 2 Mylne & Keen, 343, Who may Sue 5395 Napier v. Darlington, 70 Pa. St., 64, Specific Performance 5723^ Napier's Case, 3 P. Wms., 401, Who may Sue 5398 Nash, Baring v., 1 Ves. & Beames, 555, Partition 5769 Nash V. Smith, 6 Conn., 431, Interpleader 5862 National Co., American Shoe Tip Co. v., 11 Off. Gaz., 740, Injunctions. 5650 National Endowment Co., In re, 143 Pa. St., 450, Corporations 5486 Navigation Co., Coal Co. «., 3 W. N., 341, Corporations 5481 Navigation Co., Coal Co. v., 53 Pa. St., 91, Corporations 5492 Navigation Co. v. Fenlon, 4 W. & S., 205, Account 5396. Neafie v. Neafie, 7 Johns. Chanc, 1, Decrees 6095 Neafie's Appeal, 22 W. N., 31, Receivers 5602 Neal's Appeal, 129 Pa. St. , 64, Injunctions 5648 Nece V. Pruden, 8 Phila., 350, Masters 6034 Neck's Appeal, 97 Pa. St. ,313, Quia Timet 5855 Needham v. Smith, 2 Vern., 464, Rehearing 6105 Needham, Town v., 3 Paige (N. Y.), 546, Partition 5769 Neel V. Neel, 1 Grant, 171, Costs 6110 Neel's Appeal, 3 Penny., 66, Account 5393. TABLE OF CASES. CXXXV Section NeiU's Appeal, 93 Pa. St., 177, Review 5878 Neilson, Love v., 1 Jones Eq. (N. C), 339, Specific Performance 5731 Neisly's Appeal, 8 Pa. St., 457, Review 5874 Nelson v. Barter, 10 Jur. N. 8., 833, Interpleader 5862 Nesbit, Scott v., 2 Cox, 183, Demurrers 594-t Nester v. Brewing Co., 161 Pa. St., 473, Injunctions 5683 Neux, Maltby v., 2 Swans. Chano. Rep., 377, Who Must be Joined 5353 Neville, Parsons v., 3 Brown's Chanc. Cases, 365, Who Must be Joined. 5341 Nevin's Estate, 7 Phila., 506, Accident 5421 New River Co., Adair v., 11 Ves., 429, Who Must be Joined 5353 New York, De Baun v., 16 Barb., 393, Bills of Peace 5843 New York, Mayor v., 63 N. Y., 455, Accident 5448 New York Co. v., Magowan, 23 Fed. Rep., 596, Injunctions 5655 New York Co., Poppenhuson v., 4 Blatch., 184, Injunctions 5651 New York Grape Co. v. American Grape Co ., 10 Fed. Rep. , 835, Injunc- tions 5656 New York Sugar Co. v. American Co., 10 Fed. Rep., 835, Injunctions. 5650 Newell V. Clark, 15 W. N., 157, Masters 6039 NeweU's Appeal, 100 Pa. St., 517, Specific Performance 5723 Newenham, Devonsher v., 3 Sch. & Lef., 199, Amendments 5841 Newenham, Devonsher v., 3 Sch. & Lef., 199, Bills of Peace 5913 Newton v. Earl of Egmont, 5 Simon's Rep., 130, Who Must be Joined. 5354 Newton, Naglei;., 33 Grattpn (Va.), 814, Accident 5453 Nichols V. English, 3 Brewster, 260, Examiners 6022 Nichols, Furman v., 8 Wallace, 44, Who may be Sued 5326 Nichols, Ireland v., 37 How. Prac, 232, Receivers 5583 Nicol V. Carr, 35 Pa, St., 381, Specific Performance 5733 Nippes' Appeal, 35 Leg. Int., 325, Appeals 6184 Nixon, Penrose v. , 140 Pa. St. , 45, Injunctions 5676 Nixon's Estate, 13 W. N., 100, Costs 6111 Noble V. Becker, 3 Brews. ,550, Injunctions 5639 Noble, Thompson v., 3 Pitts., 301, Preparation 5373 Noble's Appeal, 39 Pa. St., 425, Trasts 5734 Noel, Buchanan v., 35 Leg. Int., 490, Quia Timet 5856 Nolan, McFaddenu., 39 Leg. Int., 118, Receivers 5573 Nolde's Appeal, 15 Atl. Rep., 777, Injunctions 5707 Norfolk, Peabody v., 98 Mass., 453, Injunctions 5667 Norris, Ins. Co. v., 14 W. N., 335, Trusts 5733 Norris v. Kennedy, 11 Ves., 565, Amendments 5913 CXXXvi TABLE OP CASES. Section Norris v. Knox, 1 Pitts. , 56, Specific Performance 5721 Norrisi;. Norris, 39 Leg. Int., 256, Masters 6036 North, Stein v., 3 Yeates, 824, Specific Performance 5728 North Carolina v. Temple, 134 U. S. , 23, Who may be Sued 5336 Norton, Clarkson v., 31 Leg. Int., 377, Masters 6034 Norton, Whaley v., 1 Vem., 488, Preparation 5380 Norway v. Eowe, 19 Ves. Jr., 144, Account 5899 Nougues, Hitchens v., 11 Cal., 38, Specific Performance 5721 Nulton's Appeal, 103 Pa. St., 386, Answers 5970 Nunda, Chrystal Lake u, 79 111., 311, Bills of Peace 5842 Nye's Appeal, 24 W. N., 131, Dower 5552 O. O'Connor v. Tack, 3 Brewster, 407, Production 6003, 6004, 6007, 6009 O'Donnell v. Broad, 149 Pa. St., 34, Appeals 6184 O'Hara v. Stack, 90 Pa. St., 477, Costs 6110 O'Malley v. O'MaUey, 11 W. N., 39, Amendments 5905 O'Malleyv. O'Malley, 10 W. N. , 82, Examiners 6018 O'Neil V. Hamilton, 44 Pa. St., 18, Quia Timet 5855 O'Neill V. Duff, 83 Leg. Int., 408, Examiners 6022 O'Neill V. Duff, 11 Phila., 244, Masters. 6038 O'Reilly ■y. Kerns, 53 Pa. St., 314, Account 5396 Oakes, Arthur v., 63 Fed. Pep., 310, Injunctions 5682 Oakes v. Turquand, L. R. , 2 H. L. C. , 325, Accident 5429 Oakland, Hawes v., 104 TJ. S., 450, Corporations 5496 Oakley, Thomas v., 18 Ves. Jr., 184, Accident 5453 Ogden, Fleming tJ., 31 W. N.,399, Trusts 5733 Ogle V. Ege, 4 Wash. , 584, Injunctions 5655 Ohio, Bank v., 10 Ohio, 97, Who may Sue 5311 Ohlsen v. Riehle, 15 W. N., 487, Examiners 6022 Oil Co., City v., 5 Lane. L. R., 377, Injunctions 5685 Oil Co., Coleman v., 51 Pa. St., 74, Who may Sue 5311 Oil Co. V. Gale, 6 W, Va., 525, Interpleader 5863 Oil Co. V. Manfg. Co., 157 Pa. St., 342, Costs 6110 Oil Co. V. Petroleum Co. , 57 Pa. St. , 83, Receivers 5580 Oil Co., Schwartz u., 82 W. N., 187, Receivers 5,569 Oil Co. , Schwartz v., 153 Pa. St. , 283, Receivers 5604 Oil Co., Schwartz v., 35 W. N., 387, Costs 6110 TABLE OF CASES. CXXXVll Section on Co., Sheriff v., 7 Phila., 4, Preparation 5373, 5384 Oil Co., Simons v., 61 Pa. St., 203, Trusts 5745 Oil Co., Spielman v., 14 W. N., 350, Costs 6114 Oil Co., Water Co. v., 38 P. L. J. (O. S.), 159, Injunctions 5677 Oil Co., Young v., 30 Leg. Int., 13, Preparation 5373 Oldfield, Crofts?;., 3 Swanston, 378 n., Execution 6141 Oldham v. Stonehouse, 3 M. & C, 317, Eehearing 6105 Olin?;. Day, 3 C. C, 457, Answers 5964 Oliver, BaU. v., 2 Ves. & Beames, 96, Receivers 5580 OUver, Dixon v., 5 Watts, 509, Specific Performance 5721 Oliver v. R. R. Co., 30 Ark., 128, BiUs of Peace 5843 Olmsted v. Olmsted, 38 Conn., 318, Accident 5444 Ohnsted's Appeal, 86 Pa. St., 284, Injunctions 5647 dtvine, Morris v., 23 Pa. St., 441, Marshalling Assets 5837 Ondardonk, Scott v., 14 N. Y., 9, Quia Timet 5855 Ong V. Campbell, 6 Watts, 393, Specific Performance 5720 Optical Co., Dowry v., 161 Pa. St., 123, Receivers 5580 Optical Co.,PairpointCo. v., 161 Pa. St., 17 ; 34 W. N., 216, Receivers. . 5580 Orbison's Appeal, 22 W. N., 116, Appeals 6181 Order of Solon, Crombie v., 157 Pa. St., 588, Receivers 5580 Order of Solon, Crombie v. , 157 Pa. St. , 588, Answers 5970 Order of Vesta, Comm. v., 33 W. N., 1 ; 156 Pa. St., 531, Receivers. . . .5578 Organ Co., FiUey v., 3 Kulp, 396, Receivers 5594 Organ Co., Hintermeister v., 3 Kulp, 490, Receivers 5594 Ome V. Coal Co., 114 Pa. St., 172, Specific Performance 5721, 5723 Ome V. Fridenberg, 143 Pa. St., 487, Injunctions 5639, 5686 Ome V. Fridenberg, 143 Pa. St., 503, Decrees 6095 Orr, Beane v., 9 Off. Gaz., 255, Injunctions 5655 Orr V. Littlefleld, 1 W. & M., 13, Injunctions 5651 Orth V. Carsten, 1 W. N., 199, Injunctions 5641 Osbom V. Bank, 9 Wheaton, 739, Who may be Sued 5326 Osbom V. Bank, 9 Wheaton, 738, Bills of Peace 5843 Osborne v. HoUenback, 3 Kulp, 138, Demurrers 5945 Ott, Cortelyou v., 1 Northam., 170 ; 103 Pa. St., 576, Specific Perform- ance 5730 Ott, Wilson ■«., 34 W. N., 159 ; 160 Pa. St., 433, Dower 5558 Overton, Langley v., 9 Law Jour. Rep. (Chanc), 27, Revivor 5933 Ovey, Haywood v., 6 Maddock's Chanc. Rep., 113, Who Must be Joined 5353 CXXXVUl TABLE OP CASES. P. Seotioit Pacffio Co. V. Lieb, 83 111., 602, Bills of Peace 5844 Packer's Appeal, 128 Pa. St., 431, Account 5394 Page, Rose v. , 2 Simon's Rep. , 471 , Who Must be Joined 533& Page V. Smith, 48 Vt., 285, Who may Sue 5311 Page, State v., 48 Vt., 266, Who may Sue 5311 Page tJ. Townsend, 5 Sim., 395, Demurrers 5944 Page V. Vankirk, 1 Brewster, 382, Account 5398 Paine, Bishop v., 11 Ves. Jr., 199, Who Must be Joined 5357 Painter v. Harbaugh, 25 P. L. J. N. S., 49, Specific Performance 5731 Painter v. Harbaugh, 35 P. L. J. (N. S.), 49; Examiners 6011 Painter v. Harding, 3 Phila., 144, 449. Answers 5968, 5970 Painter's Estate, 43 Pa. St., 156 ; 3 Grant, 157, Accident 5431 Pairpoint Co. v. Optical Co., 161 Pa. St., 17 ; 34 W. N., 216, Receivers. . 5580 Palethorp's Appeal, 160 Pa. St., 316, Appeals 6179 Palmer v. Allen, 26 W. N., 514, Receivers 5614 Palmer v. Cole, 3 Kulp, 55, Who may Sue 5305 Palmer v. Graham, 1 Pars., 476, Injunctions 5666 Palmer v. Harris, 60 Pa. St. , 156, Injunctions 5663 Palmer's Estate, 133 Pa. St., 397, Appeals 6179 Pancake v. Cauflfman, 114 Pa. St., 113, Accident 5450 Pancoast, Graham v., 30 Pa. St., 89, Accident 5431, 5440 Pancoast v. Reeves, 7 Phila., 383, Amendments 5905 Paper Co. v. Hinckem, 31 W. N., 337, Answers 5968 Paradice v. Sheppard, 1 Dick. , 136, Who fnay Sue 5816 Park, Jones ■«., 1 W. N., 17, Replications 5991 Parker, BarwcU v., 3 Ves., 363, Trusts 5751 Parker v. Brant, 1 Fish., 58, Injunctions 5651 Parker ■;;. Kane, 32 Howard, 1, Decrees 6095 Parker v. Sears, 1 Fish., 93, Injunctions 5650, 5655 Parker's Appeal, 61 Pa. St., 478, Review 5874, 5875 Parkhurst v. Lowten, 1 Merivale, 391, Demurrere 5944 Parmele, United States v., 1 Paine C. C, 252, Preparation 5373 Parmley v. R. R. Co., 3 Dillon C. C, 25, Bills of Peace 5846 Parnell, Stewart v., 46 Leg. Int., 138, Answers 5970 Parrish v. Koons, 1 Pars., 79, Specific Performance 5731 Parry, Brewster v. , 14 Fed. Rep. , 694, Injunctions 5655 Parry v. Rogers, 1 Vern., 441, Perpetuation 5535 Parry, Sensenig v., 113 Pa. St., 115 ; 5 Atl. Rep., 11, Injunctions 5644 TABLE OF CASES. CXXxix Seetioit Parsons v. Neville, 3 Brown's Chanc. Cases, 365, Who Must be Joined.. 5341 Passavant, Fenhoulet v., 2 Ves. Sr., 24, Preparation 5881 Passingham, Lloyd v., 16 Ves., 70, Trusts 5748 Passmore, Tyson v., 2 Pa. St., 122, Trusts 5739 Patey, Walter •«., 1 Russell, 375, Costs 6113 Paton V. Clark, 156 Pa. St. , 49, Account 5391, 539.5 Paton's Appeal, 156 Pa. St., 49 ; 32 W. N., 458, Demurrers 5944 Patrick, Adams v., 30 Vt., 516, Specific Performance 5721 Patrick's Appeal, 105 Pa. St., 356, Costs 6114 Patten, Becker v., 1 Dist. Rep., 24, Specific Performance 5722 Patten's Appeal, 45 Pa. St.. 151, Marshalling Assets 5837 Patterson, Campbell v., 95 Pa. St., 447, Accident 5447 Patterson, Campbell v. , 95 Pa. St. , 447, Answers 5970*' Patterson, Comm. v., 158 Pa. St., 476, Corporations 5517 Patterson, Henry v., 57 Pa. St., 346, Trusts 5736, 5744 Patterson v. Martz, 8 Watts, 374, Specific Performance 5721 Patterson v. Patterson, 2 Pears. , 170, Masters 6027, 6036; Patterson v. Patterson, 2 Pears., 170, Costs 6114 Patterson v. R. R. Co., 8 C. C, 186, Injunctions 5687 Patterson v. Silliman, 28 Pa. St., 304, Answers 5970' Patterson, White v., 139 Pa. St., 429, Specific Performance 5732' Patterson v. Wyomissing Co., 40 Pa. St., 117, Corporations 5501 Patton V. Devlin, 2 Phila., 103, Specific Performance 5720" Patton, McBride v., 9 Phila., 271, Amendments 5910 Paulv. Carver, 24 Pa. St., 307, Answers 5970' Paul V. Paul, 36 Pa. St., 270, Dower 5558 Pavement Co. v. Wagner, 139 Pa. St., 623, Injunctions 5707 Paving Co. V. City, 164 Pa. St., 477, Injunctions 5699, 5707' Paxton V. Harrier, 11 Pa. St. , 312, Marshalling Assets 5884 Paxton V. Stockhouse, 4 Kulp, 408, Cross-bills 5890, 5891 Paynter v. Clegg, 9 Phila., 480, Injunctions 5707 Peabody v. Norfolk, 98 Mass. , 453, Injunctions 5667 Peach, Routh w., 3 Anst., 519, Preparation 5388 Peacock v. Chambers, 3 Grant, 398, Answers 5970' Pearne ■;;. Lisle, Ambler, 77, Specific Performance 5720, 5721 Pearson v. Belchier, 4 Ves. , 638, Who may Sue 5317 Pebrer, Marcos v., 2 Sim., 330 n.. Preparation 5384 Peck, Hamlin v., 185 Pa. St., 494, Injunctions 5700^ Peck, Jarvis v., 10 Paige's Chanc, 118, Injunctions 5667 <3xl TABLE OF CASES. Section Peck, Johnson v., 2 Ves. Sr., 465, Revivor 5923 Peebles v. Boggs, 1 Phila., 151, Discovery 5472 Peile V. Stoddart, 1 Macn. & Gord. , 192, Production 6006 Pell, Talmageu., 9 Paige, 410, Cross-bills 5894 Pember v. Matthers, 1 Bro. C. C, 53, Answers 5970 Pemberton, Habicht v., 4 Sand. (N. Y), 657, Who may Sue 5308 Pendleton, Alexander v. , 8 Cranch, 462, Bills of Peace 5840 Pendleton, Goodrich v., 3 Johns. Ch. Rep., 520, Who may Sue 5302 Pendleton, Swearinger u. , 4S. &R., 389, Trusts 5741 Pendleton, Van Hook v., 1 Blatoh., 187, Injunctions 5651 Penn v. Lord Baltimore, 1 Ves. Jr. Rep., 444, Who Must be Joined. ... 5353 Penn v. Lord Baltimore, 1 Ves. Jr., 444, Specific Performance 5719 Penn Bank v. Hopkins, 111 Pa. St., 328, Corporations 54S2 Pennel, Jones v., 1 Phila., 539, Specific Performance 57C0 Pennell, Lungren v. , 10 W. N. , 297, Preparation 5C84 Pennell, Lyne v., 1 Sim. N. S., 118, Interpleader 5867 Pennock v. Freeman, 1 Watts, 401, Specific Performance 5721 Pennoyer v. McConnaughy, 140 U. S., 1, Who may be Sued 5326 Penrose v. Nixon, 140 Pa. St., 45, Injunctions 5676 Penna. Co. v. Bank, 33 W. N., 525, Account 5411 Penna. Co. v. Bank, 33 W. N., 525 ; 3 Dist. Rep., 93, 151, Answers 5971 Penna. Institution, Home v., 17 W. N., 171, Partition 5775 Penna. R. R. v. Belt Line R. R., 39 W. N., 302 ; 30 W. N., 161, Corpo- rations 5.520 Penna. Salt Co. v. Myers, 1 W. N., 377, Injunctions 5651, 5653 People V. Mayor, 10 Abbott's Prac, 111, Receivers 5582 Pepper, Robb t;., 11 W. N., 497, Execution 6134 Pepper v. Robinson, 32 W. N., 200, Answers 5970 Perdue, Long v., 83 Pa. St., 314, Trusts 5737 Pereyra's Appeal, 24 W. N., 42, Partition 5823 Periam, Clark v., 3 Atk., 333, Preparation 5380 Ferine v. Dunn, 4 Johns. Chanc. , 140, Decrees 6095 Perishal v. Squire, 1 Dick., 31, Who may Sue 5319 Perkins, Comm. v. , 46 Leg. Int. , 67, Production 6005 Perkins v. Gay, 3 S. & R., 327, Accident 5433 Perkins, Mclntyre v., 9 Phila., 484, Injunctions 5699 Perkins, Rwy. Co. v., 4 Brews., 178, Injunctions 5707 Permoyer v. McConnaughy, 140 U. S., 1, Who may be Sued 5336 Perry V. Kinley, 1 Phila., 505, Discovery 5474 TABLE OF CASES. Cxli Seotloa. Perry v. Kinley, 1 Phila., 505, Answers 5971 Perry v. Perry, 3 C. P., 163, Dower 5550 Perry's Appeal, 23 Pa. St., 43, Marshalling Assets 5834 Perry's Appeal, 8 AtL, 450, Masters 6034 Persoh v. Quiggle, 57 Pa. St., 247, Preparation 5373, 5384, 5885 Pei-sch V. Quiggle, 57 Pa. St., 247, Account 5391 Persoh v. Quiggle, 57 Pa. St., 247, Costs 6115 Persoh v. Quiggle, 57 Pa. St. , 247, Appeals 6181 Peters, Stetson v., 16 Leg. Int., 147, Answers 5968 Peters' Estate, 32 Leg. Int., 160 ; 1 "W. N., 406, Appeals 6177 Petei-son, Burton v., 4 W. N.. 256, Masters 6027 Peterson, Clapp v., 104 111., 26, Who may Sue 5311 Peterson v. Ewy. Co., 5 PhUa., 199, Injunctions 5676 Peterson, Ward v. , 19 W. N. , 157, Examiners 6019 Petery's Appeal, 129 Pa. St., 121, Preparation 5372 Petrie v. Clark, 11 S. & P., 377, Trusts 5738 Petroleum Co., Oa Co. v., 57 Pa. St., 83, Receivers 5580 Pettebone i\ Coal Co., 4 Kulp, 349, Perpetuation 5535 Pettebone v. Everhart, 4 Kulp, 353, Perpetuation 5536 Pettebone v. Everhart, 4 Kulp, 358, Answers 5979 Pettit V. Baird, 30 Leg. Int., 208, Who Must be Joined 5360 Pettit V. Baird, 10 PhUa., 57, Preparation of Bill 5373 Pettit, Sharp v., 4 DaU., 212, Dower 5559 Pettit V. Shepherd, 5 Paige, 493, Quia Timet 5855 Peyton v. Bond, 1 Sim., 390, Who may Sue 5295 Pfoutz, Todd v., 3 Yeates, 177, Specific Performance 5721 Phelps, Calverley v., 6 Maddock's Chanc. Rep., 229, Who Must be Joined 5343 Phelps, Green v., 3 Johns. Chanc, 304, Partition 5775, 5798 Phila. V. Bridge Co., 6 Phila., 523, Corporations 5493 Phila. V. City, 5 Phila., 248, Injunctions 5701 Phila., Ex parte, 2 Brewster, 462, Trusts 5733 PhUa, Flanagan v., 8 Phila., 110, Injunctions 5639 PhUa. V. Gilman, 3 Wall., 713, Injunctions 5684 Phila., Girard v. 7 Wallace (U. S.), 1, Quia Timet 5856 PhUa. V. Girard, 45 Pa. St., 9, Decrees 6095 Phila. V. Griscom, 5 Phila., 533, Injunctions 5673 PhUa. V. R. R. Co., 133 Pa. St., 134, Who Must be Joined 5346 PhUa., R. R. Co. v., 8 PhUa., 384, Injunctions 5629 oxlii TABLE OF OASES. Section Phila., Ewy. Co. v., 8 W. N., 639, Injunctions 5676 Phila. V. Ewy. Co., 8 Phila., 648, Injunctions 5676 Phila. V. Rwy. Co., 3 Brewster, 547, Injunctions 5676 Phila., Ewy. Co. v., 164 Pa. St., 457, Appeals 6164 Phila., Sank v., 4 Brewster, 183, Injunctions 5684 Phila., Savage v., 16 Phila., 174, Injunctions 5629 Phila., Wheeler v., 77 Pa. St., 338, Corporations 5481 Phila., Windrim v., 8 Phila., 361, Injunctions 5639, 5655 Phila., Wolbert v., 48 Pa. St., 439, Injunctions 5629 Phila. Belt Line Co., Penna. R. R. Co. v., 29 W. N., 302; 30 W. N., 161 , Injunctions 5676 Philadelphia's Appeal, 78 Pa. St., 33, Injunctions 5707 Philips V. Carew, 1 P. Wms., 116, Perpetuation 5538 Philips V. Carew, 1 P. Wms., 117, Demurrers 5944 Phillips, Brooke v., 6 Phila., 392, Demurrers 5947 Phillips, Datz ii., 86 W. N., 512; 187 Pa. St., 203, Specific Perform- ance 5721, 5723 Phillips, Datz v., 46 Leg. Int., 250 ; 26 W. N., 518, Cross-bills 5891 Phillips, Griffith v., 3 Grant, 381, Partition 5809 Phillips, Hanna v., 1 Grant, 853, Specific Performance 5723 Phillips, Megargee v., (MS.) C. P. No. 2, June Term 1887, No. 784, Corporations 5494 Phillips V. Mining Co., 7 Phila., 619, Specific Performance 5720 Phillips V. Shaw, 8 Ves., 841, Demurrers 5944 Phillips' Appeal, 1 Cent. Eep. , 636, Who may Sue 5297 Phillips' Appeal, 68 Pa. St., 130, Masters 6034 Phipps V. Jackson, 56 L. J. Eep. (N. S.), 550, Injunctions 5670 Pickering v. Pickering, 38 N. H., 400, Specific Performance 5721 Piokorsgill v. Myers, 99 Pa. St. , 602, Eeceivers 5610 Pickett, Ball Club v., 47 Leg. Int., 212, Injunctions 5669 Pickett, Ball Club v., 47 Leg Int., 213, Specific Performance 5723 Piddook, Hall v. , 31 N. J. Eq. Eep. , 814, Partition 5769 Pier, Marsh v., 4 Eawle, 373, Decrees 6095 Pierce v. McKeehan, 3 W. & S., 280, Trusts 5735 Pierce's Appeal, 103 Pa. St., 27, Rules 5146, 5161 Pierce's Appeal, 103 Pa. St., 87, Masters 6038 Pierce's Appeal, 103 Pa. St., 27, Costs 6111, 6180 Pierce's Appeal, 103 Pa. St., 27, Execution 613S Pierson, Moore v., 6 Iowa, 379, Specific Performance 5721 TABLE OF CASES. Cxliii Section Tile, Haneman ?;. , 161 Pa. St. , 599, Preparation 5387 Pile, Haneman v., 161 Pa. St., 599, Demun-ers 5944 Pik-, Haneman v., 161 Pa. St., 599, Answers 5968 Pilliington, Mayor v., 1 Atk., 382, Preparation 5384 Pillsworth V. Hopton, 6 Ves., 51, Injunctions 5673 Pimm, Hood v. , 4 Sim. , 101, Rehearing 6105 Piper V. Trust Co., 140 Pa. St., 233, Costs 0110 Piper's Appeal, 30 Pa. St., 67, Appeals 0183 Pitcairn, Brown t;. , 30 W. N. , 35, Preparation 5378 Pittcairn, Brown v., 148 Pa. St., 387, Specitic Performance 5721, 5730 Pittman's Appeal, 48 Pa. St., 315, Marshalling Assets 5837 Pittsburg, Bruce v., 161 Pa. St., 517, Corporations 5481 Pittsburg, Bruce v., 166 Pa. St., 152, Injunctions 5684 Pittsburg's Appeal, 118 Pa. St., 458, Injunctions 5647 Pittsburg's Appeal, 79 Pa. St., 317, Injunctions 5707 Planli Road Co., Lipton v., 17 Leg. Int., 365, Prosecution 6057 Platell, CuflE v., 4 Russell, 242, Demurrers 5944 Piatt V. Barorof t, 4 Phila. , 67, Demurrers 5496 Piatt V. R. R. Co., 33 W. N. , 186, Preparation 5373 Piatt V. R. R. Co., 33 W. N. , 186, Trusts 5757 Piatt V. R. R. Co., 33 W. N., 186, Answers 5969 Playford, Rogers ?;., 12 Pa. St., 181, Account 5397 Plimpton V. Winslow, 3 Fed. Rep., 333, Injunctions 5651 Plitt, Lowrie v., 2 W. N., 675, Injunctions 5696 Plumer v. Guthrie, 76 Pa. St., 441, Trusts 5736, 5744 Plunkett V. Joice, 2 Sch. & Lef., 159, Amendments 5897 Pollock, Linton «., 5 C. C, 243, Who may Sue 5305 Pond, Dauchy v. , 9 "Watts, 49, Specific Performance 5721 Poor V. Carlton, 3 Sumner, 83, Injunctions 5639 Poorman v. Kilgore, 26 Pa. St., 365, Specific Performance 5731 Toppenhusen v. Falke, 4 Blatch., 493, Injunctions 5651 Poppenhusen v. N. Y. Co., 4 Blatch., 184, Injunctions 5651 Porter v. Dougherty, 25 Pa. St. , 405, Specific Performance 5731 Porter v. English, 1 Phila., 85, Costs ? 6110, 6114 Porter v. Lazear, 14 W. N., 361 ; 87 Pa. St., 513, Dower 5553 Porter v. Vanderlin, 158 Pa. St., 146, Marshalling Assets 5836 Tost V. Weeks, 3 Dist. Rep., 380, Receivers 5580 Poterie v. Gas Co., 153 Pa. St., 13, Injunctions 5673 Toterie, Gas Co. v., 153 Pa. St., 11, Injunctions 5673 cxliv TABLE OF CASES. Section Pote's Appeal, 106 Pa. St. , 574, Amendments 5904 Potter, Bedford v., 9 Phila., 560, Injunctions 5641 Potter, Carson v., 18 Pa. St., 457, Specific Performance 5731 Potter V. Fuller, 3 Fisher, 351, Injunctions 5651, 5657 Potter V. Hoppin, 10 Phila., 396, Account 5393 Potter's Appeal, 158 Pa. St., 393, Masters 6034 Potts V. Elevated R. E. Co., 161 Pa. St., 396, Corporations 5530 Potts V. Elevated R. R. Co. , 31 W. N. , 390, Injunctions 5676 Powder Co., Daw v., 160 Pa. St., 483, Injunctions 5677 Powel, Barnesly v., 1 Ves. Ch., 130, Review 5881 Powel's Assigned Estate, 163 Pa. St., 349, Costs 6110 Powell V. Abbott, 9 W. N., 331, Injunctions 5703 PoweU, Seltzer v., 8 Phila., 396, Injunctions 5663 Powell, Skrine v.. 15 Sim., 8, Perpetuation 5543 Powell's Estate, 168 Pa. St. , 351, Receivers 5604 PoweU's Estate, 3 Dist. Rep., 508, Partition 5776 Powell's Estate, 163 Pa. St., 350, Masters 6038 Power, Quinn v., 18 W. N., 385, Preparation 5384 Power's Appeal, 33 W. N., 485, Injunctions 5673 Power Co., Durpee v., 114 Mass., 37, Who may Sue 5311 Power Co., Eshleman v., 1 Lane. L. R., 36, Injunctions 5639 Pratt V. Eby, 67 Pa. St., 396, Specific Performance 5733 Presbyterian Church Cases, 77 Pa. St., 398, Corporations 5537 President of St. Mary v. Sibthorp, 1 Russell, 134, Amend- ments 5904 Price, Evitt v., 1 Simons, 483, Injunctions 5667 Price, Short v., 17 Tex., 397, Specific Performance 5731 Price's Appeal, 54 Pa. St., 473, Trusts 5743 Priestley's Appeal, 137 Pa. St. , 480, Review 5875 Priestley's Appeal, 137 Pa. St., 430, Answers 5970 Prime, Brandon Co. v., 14 Blatoh., 371, Cross-bills 5886 Prince, Dawson v., 3 DeG. & J., 43, Rehearing 6105 Prince v. Heylin, 1 Atk., 498, Trusts 5749 Prins Frederik, 3J)odson's Adm. Rep., 451, Who may be Sued 5334 Pritt, Bank v. , 56 Law J. R. (N. S.), 987, Injunctions 5666 Proctor V. Campbell, 5 C. P., 370, Injunctions 5673 Protchett v. Schaefer, 11 PhUa., 166, Prosecution 6061 Prowattan, Belsterling v., 6 Phila., 40, Account 5393 Pruden, Neoe v. , 8 Phila. , 350, Masters 6034 TABLE OF CASES. cxlv Section Prudential Assurance Co. v. Thomas, L. R., 3 Chanc. Ap., 74, Inter- pleader 5866 Pryse, Harrison v., Barnardiston's Chanc. Cases, 324, Who Must be Joined 5347 Publishing Co. v. Ladomus, 33 Leg. Int., 130 ; 3 W. N., 557, Injunc- tions 5676 PuUman v. R. R. Co., 4 Hughes, 236, Injunctions 5650, 5655, 5656 Pulp Co., Miller v., 1 Hohnes, 142, Injunctions 5653 Pultney, Cartwright v. , 2 Atk. , 380, Partition 5771 Purdy, Lounsbury v., 18 N. Y., 515, Quia Timet 5855 Purvis V. Leech, 16 W. N., 541, Cross-bills 5895 Purvis V. Leech, 16 W. N., 541, Replications 5991 Pusey V. Pusey, 1 Vernon, 273, Specific Performance 5720, 5721 Pusey V. Wright, 31 Pa. St., 387, Answers 5968, 5970 Pusey V. Wright, 31 Pa. St., 387, Examiners 6017 Pynchon v. Day, 118 111., 9, Production 6008 Q. Quay V. Quay, 1 Chest., 489, Costs 6114 Queen of Portugal, De Haber v., 17 Adol. & El., page 207, Who may be Sued 5325 Queen of Spain, Wadsworth v., 17 Adol. & EL, 215, Who maybe Sued. 5325 Quiggle, Persch v., 57 Pa. St., 247, Preparation 5373, 5384, 5385 Quiggle, Persch I)., 57 Pa. St., 247, Account 5391 Quiggle, Persch u, 57 Pa. St., 247, Costs 6115 Quiggle, Persch v., 57 Pa. St., 247, Appeals 6181 Quigley v. De Haas, 82 Pa. St., 267, Account 5396 Quinn v. Power, 18 W. N., 285, Preparation 5384 E. Radford v. Folsom, 3 Fed. Rep., 199, Decrees 6095 Rafferty v. Traction Co. , 147 Pa. St. , 579, Preparation , 5384 Rafferty v. Traction Co., 29 W. N., 542, Costs 6110 R. R. Co., Anderson ?;., 2 C. C, 402, Receivers 5612 R. R. Co., Applegate v., 12 W. N., 406, Who may Sue 5303 R. R. Co., Audenried v., 68 Pa. St., 370, Injunctions 5629 ^. R. Co., Bagby v., 86 Pa. St., 291, Receivers 5594 R. R. Co., Bailey v., 139 Pa. St., 313, Who may Sue 5315 10 Cxlvi TABLE OF CASES. Seotion R. R. Co., Bank v., 4 W. N., 264, Receivers 5610 R. R. Co., Bradley v., 36 Pa. St., 141, Corporations 5.525 R. R. Co., Bradley v., 36 Pa. St., 141, Trusts 5733 R. R. Co. V. Casey, 26 Pa. St., 287, Injunctions 5627 R. R. Co., City v., 133 Pa. St., 134, Who Must be Joined 5346, 5360 R. R. Co., City u., 133 Pa. St., 134, Preparation 5373 R. R. Co. V. City, 8 Phila., 284, Injunctions 5629 R. R. Co. V. City, 8 Phila. , 112, Specific Performance 5724 R. R. Co., City ZJ., 15 W. N., 364, Amendments 5904 R. R. Co. V. Clute, 4 Paige, 384, Interpleader 5862 R. R. Co., Comm. v., 142 Mass., 146, Who may Sue 5311 R. R. Co., Comm. v., 20 Pa. St., 518, Corporations 5493 R. R. Co., Comm. v., 122 Pa. St., 306, Corporations 5523, 5525 E. R. Co. V. Comm., 104 Pa. St., 81, Receivers 5614 R. R. Co., Comm. v., 24 Pa. St., 159, Injunctions 5701 R. R. Co., Cooper v., 3 Phila., 362, Injunctions 5655 R. R. Co. V. Cooper, 33 Pa. St., 278, Specific Performance 5733 R. R. Co. V. County, 7 Neb., 487, BiUs of Peace 5846 R. R. Co., Cox«., low. N., 552, Injunctions 5676 R. R. Co., Cunningham v., 109 U. S., 446, Who may be Sued 5326 R. R. Co., Dakin v., 5 Fed. Rep., 665, Accident 5454 R.'r. Co., Davenport v., 166 Pa. St., 480, Production 6007 R. R. Co. V. Dunn, 51 Ala., 128, Bills of Peace 5844 R. R. Co. V. Evans, 6 Gray, 25, Specific Performance 5721 R. R. Co. V. Fitch, 30 Ind., 498, Receivers 5614 R. R. Co. V. Gaines, 3 Tenn. Ch., 478, Billsof Peace 5843 R. R. Co., Grey v., 1 Grant, 412, Injimctions 5707 R. R. Co., Hass v., 5 Lane. Law R., 253, Who may Sue 5303 R. R. Co., Hirst v., 6 Pliila., 93, Who may be Sued 5334 R. R. Co., Howard v., 69 Pa. St., 489, Account 5396 E. R. Co., Howard v., Q C. C. Rep., 589, Receivers 5614 R. R. Co. V. Improvement Co., 54 Pa. St., 28, Injunctions. . : 5641 R. R. Co. V. Keenan, 56 Pa. St., 198, Corporations 5492 R. R. Co., Kemble v., 46 Leg. Int., 444, Injunctions 5676 R. R. Co., Kemble v., 140 Pa. St., 14, Demurrers 5944 R. R. Co., King v., 29 N. J. Law Rep., 83, Who may Sue 5313 R. R. Co., Kreiner v., 135 Pa. St., 184, Appeals 6174 R. R. Co., Lannan v., 30 Pa. St., 43, Injunctions 5701 JEl. R. Co., Leedom v., 5 W. & S., S6o, Execution 6138 TABLE OF CASES. Cxlvii Section It. R. Co., V. Letson, 2 Howard, 497, "Who may be Sued 5326 R. R. Co., V. Letson, 2 Howard, 497, Demurrers 5944 R. R. Co., Lewis v., 39 Leg. Int., 13, Receivers 5596 R. R. Co. V. Lippincott, 86 Pa. St., 468, Specific Performance 5733 R. R. Co., Logan v., 132 Pa. St., 403, Appeals 6183 R. R. Co., Loughlint;., 11 W. N., 463, Injunctions 5639 R. R. Co. V. Malone, 85 Pa. St., 25, Amendments 5904 R. R. Co., Malone v., 157 Pa. St., 431, Appeals 6183 R. R. Co., Market Co. v., 143 Pa. St., 580, Corporations 5484 R. R. Co. V. Mayor, 9 N. J. Eq., 434, Bills of Peace 5840 R. R. Co., McElratli v., 38 Leg. Int., 197, Who Must be Joined 5359 R. R. Co., McElrath v., 68 Pa. St., 37, Masters 6037 R. R. Co. V. McShane, 3 Dillon C. C. Rep., 304, Bills of Peace 5843 R. R. Co., Mendenhall v., 36 Pa. St. , 148, Corporations 5535 R. R. Co., Mendenhall v., 36 Pa. St., 145 n., Trusts 5733 R. R. Co., Mott v., 30 Pa. St., 9, Injunctions 5684 R. R. Co., Mowrey v., 4 Bissell, 78, Injunctions 5701 R. R. Co. V. MuUin, 33 W. N., 503, Injunctions 5673 R. R. Co., OUver v., 30 Ark., 138, BiUs of Peace 5843 R. R. Co., Parmley v., 8 DiUon C. C, 25, Bills of Peace 5846 R. R. Co., Patterson v.,8C. C, 186, Injunctions 5687 R. E. Co. V. Philadelphia, 133 Pa. St., 134, Who Must be Joined 5346 R. R. Co. V. Philadelphia, 8 Phila.. 384, Injunctions 5639 E. R. Co. V. Pliila. Belt Line Co., 29 W. N., 202 ; afarmed in 30 W. N., 161, Injunctions 5676 R. R. Co., Piatt v., 33 W. N., 186, Preparation 5373 R. R. Co., Piatt u, .S3 W. N., 186, Trusts 5757 R. R. Co., Piatt v., 33 W. N., 186, Answers 5969 R. R. Co., Potts ti., 161 Pa. St., 396, Corporations 5520 R. R. Co., Potts v., 31 W. N., 290, Injunctions 5676 R. R. Co., Pullman v., 4 Hughes, 236, Injunctions 5650, 5655, 5656 K. R. Co. V. R. E. Co., 57 Pa. St., 65, Accident 5415 R. R. Co. V. R. R. Co., 134 Pa. St., 541, Corporations 5485 R. R. Co. V. R. E. Co., 29 W. N., 203 ; 30 W. N., 161, Corporations ... . 5520 R. R. Co. V. R. R. Co., 151 Pa. St., 403, Injunctions 5673 E. R. Co. V. R. R. Co., 57 Pa. St., 65, Specific Performance 5731 R. R. Co. V. R. R. Co., 160 Pa. St., 232, Costs 6110 E. R. Co., Rwy. Co. v., 152 Pa. St., 96. Eecei\»M:s 5605 R. E. Co. u Eeno, 53 Pa. St., 234, Injunctions 5629 cxlviii TABLE OP CASES. Section E. R. Co., Rice v., 9 Phila., 394, Masters 6027 R. R. Co., Robinson t;., 66 Pa. St., 160, Receivers 5613 R. E. Co., Rust I)., 16 W. N., 286, Injunctions 5701 R. R. Co. i;. Scanlan, 44 Tex., 649, Bills of Peace 5847 R. R. Co., SeUers u., 1 W. N., 295, Injunctions 5641 R. R. Co., SeUers v., 10 Phila., 319, Injunctions 5677 R. R. Co. V. Stichter, 11 W. N., 325, Specific Performance 5723 R. R. Co. v., Tennessee, 101 U. S., 337, Who may be Sued 5326 R. R. Co. V. Thomas, 3 Phila., 344, Corporations 5494 R. R. Co. V. Thomas, 7 Phila. , 635, Injunctions 5647 R. R. Co., Trainer ■;;., 26 W. N., 441, Amendments 5914 R. R. Co., Tunis v., 149 Pa. St., 70, Corporations 5516 E. R. Co., Whetham v., 8 Phila., 92, Preparation 5384 R. R. Co. V. Wilcox, 48 Pa. St., 161, Account 5397 R. R. Co., Youngman v., 65 Pa. St., 278, Trusts 5733 Railroad Cases, 161 Pa. St., 396, 409, Injunctions 5676, 5701 R. R. Co.'s Appeal, 32 W. N., 417, Who Must be Joined 5343, 5359 R. R. Co.'s Appeal, 1 Monaghan, 692, Who Must be Joined 5359 R. R. Co.'s Appeal, 1 Monaghan, 692, Preparation 5373 R. R. Co.'s Appeal, 63 Pa. St., 218, Preparation 5384 R. R. Co.'s Appeal, 99 Pa. St., 177, Account 5391 R. R. Co.'s Appeal, 13 Atl. Rep., 915, Corporations 5485 R. R. Co. 's Appeal, 62 Pa. St. , 218, Corporations 5492 R. R. Co.'s Appeal, 62 Pa. St., 218, Injunctions 5630 R. R. Co.'s Appeal, 115 Pa. St., 529, Injunctions 5676 R. R. Co.'s Appeal, 79 Pa. St., 357, Injunctions 5701 R. R. Co.'s Appeal, 3 Penny., 164, Answers 5970 R. R. Co.'s Appeal, 13 W. N., 173, Masters 6035 R. R. Co.'s Appeal, 115 Pa. St., 514, Decrees 6089 R. R. Co.'s Appeal, 105 Pa. St., 13, Executions 6134 E. E. Co.'s Appeal, 105 Pa. St., 32, Appeals 6180 Ewy. Co., Atty.-Genl. v., 33 Leg. Int., 238, Injunctions 5676 Ewy. Co., Borough v., 2 C. C, 639, Injunctions 5676 Ewy. Co., Borough v., 148 Pa. St., 175, Appeals 6164 Ewy. Co., Bradley v., 34 W. N., 78 ; 160 Pa. St., 72, Masters 6038 Rwy. Co., City v., 4 Brews., 14, Corporations 5520 Rwy. Co. V. City, 10 Phila., 37, 70, Injunctions 5639 Ewy. Co. V. City, 3 W. N., 639, Injunctions 5676 TABLE OP CASES. Cxlix Section Ewy. Co., City v., 3 Brewster, 547, Injunctions 5676 Rwy. Co., City v., 8 PhUa., 648, Injunctions 5676 Rwy. Co., City v., 7 Luz. Leg. Reg., 35, Injunctions 5677 Ewy. Co., City v., 5 Pliila., 248, Injunctions 5701 Ewy. Co. V. City, 30 Leg. Int., 148, Injunctions 5707 Ewy. Co., City v., 18 W. N., 453, Production 6003, 6004 Ewy. Co. V. City, 164 Pa. St., 457, Appeals 6164 Ewy. Co., Coal Co. v., 9 Phila., 350, Injunctions 5707 Ewy. Co., CoUins v., 32 W. N., 379, Corporations 5493, 5676 Ewy. Co., Collins v., 33 W. N., 379, Injunctions 5676 Ewy. Co., Comm. v., 34 W. N., 367, Corporations 5493 Ewy. Co., Comm. v., 161 Pa. St. , 409, Corporations 5520 Ewy. Co., Deschamps v., 3 Phila., 379, Injunctions 5639 Ewy Co., Eckert v., 27 P. L. J., 303, Injunctions 5676 Ewy. Co., Fargo v., 81 Pa. St., 366, Corporations 5481 Ewy. Co., Faust v., 3 Phila., 164, Injunctions 5676 Ewy. Co. V. Fitler, 60 Pa. St., 134, Corporations 5494 Ewy. Co. V. HUl, 84 Pa. St., 463, Execution 6138 Ewy. Co., Hodgman v., 20 Minn., 48, Bills of Peace 5844 Rwy. Co., Holtonu, 138 Pa. St., Ill, Who may Sue 5313 Ewy. Co., Holtonu, 8 C. C, 430, Prosecution 6055 Ewy. Co., Holtont;., 138 Pa. St., Ill, Appeals 6164 Ewy. Co. V. Land Co., 54 Pa. St., 39, Injunctions 5639 Ewy. Co., Lejee ■;;., 3 W. N., 170 ; 10 Phila., 363, Corporations. ..5484, 5493 Ewy. Co. V. Marseilles, 84111., 145, "Who may Sue 5311 Ewy. Co., Martin v., 3 Phila., 316, Injunctions 5701 Ewy. Co., McClure v., 33 Leg. Int., 448, Corporations 5481 Ewy. Co., MUtenberger v., 106U. S., 286, Eeceivers 5603 Ewy. Co., Moore v., 3 Phila., 310, Injunctions 5655 Ewy. Co. V. Perkins, 4 Brews. 173, Injunctions 5707 Ewy. Co., Peterson v., 5 Phila., 199, Injunctions 5676 Ewy. Co., V. Phila., 3 W. N., 639, Injunctions 5676 Ewy. Co., Phila. v., 5 Phila., 348, Injunctions 5701 Ewy. Co. V. Phila., 164 Pa. St., 457, Appeals 6164 Ewy. Co. V. E. E. Co., 153 Pa. St., 96, Eeceivers 5605 Ewy. Co. V. Ewy. Co., 3 Dist. Eep., 774, Injunctions 5639 Ewy. Co. V. Ewy. Co., 1 W. N., 493, Injunctions 5676 Ewy. Co. V. Rwy. Co., 164 Pa. St., 274, Masters 6034 itwy. Co. V. Ewy. Co., 161 Pa. St., 131, Appeals 6177 cl TABLE OF CASES. Sectioit Rwy. Co., Sparhawk v., 54 Pa. St., 423, Injunctions ses* Ewy. Co., Sparbawk v., 54 Pa. St., 401, Injunctions 5676, 570T Rwy. Co. , Westhaeflfer v. , 163 Pa. St. , 54, Injunctions 5641 Rwy. Co., Woods u., 99 Pa. St., 101, Decrees 6090 Rwy. Co.'s Appeal, 13 W. N., 320. Appeals 6178 Rafferty v. Traction Co. , 147 Pa. St., 579, Preparation 5384 Rafferty v. Traction Co., 29 W. N., 543, Costs 6110 Raiman, Henry v., 25 Pa. St., 854, Trusts 5740 Raleigh, Oarr v., 2 Phila., 242, Account 5397 Ralston v. Ralston, 33 P. L. J. (N. S.), 254, Demurrers 5946 Ramsey's Appeal, 2 Watts, 238, Marshalling Assets 5837 Eance, Salmon ?;. , 3 S, & R. , 311 , Specific Performance 5723^ fe.nck'y. Rutt, 9 L. Bar., 186, Masters 6031 Rand, Baker v., 13 Barb. (N. Y.), 152, Decrees 6095 Randolph's Appeal, 66 Pa. St., 178, Cross-bills 5891, 5895 Randolph's Appeal, 66 Pa. St. , 178, Prosecution 6057 Raney,City-y., 25 W. N,,346; 130 Pa. St., 546, Injunctions 5677 Eangely, Shopley v., 2 Ware's Rep., 252, Bills of Peace 5841 Rankin u Mortimere, 7 Watts, 372, Accident 541S Rankin v. Simpson, 19 Pa. St., 471, Specific Performance 5721 Rany, Janson v., 2 Atk., 140, Answers 5970 Rattray v. George, 16 Ves., 333, Who may.Sue 5331 Rau V. Small, 144 Pa. St., 304, Account 5395- Rawlings v. Lambert, 1 Johns. & Hem., 466, Preparation 5377 Rawlins, Shipton v., 4 Hare, 633, Preparation 5373 Raybold??. Raybold, 20 Pa. St., 308, Costs 6114 Raynham v. Canton, 3 Pickering, 393, Accident 5416 Read, Lowry v., 3 Brewster, 452, Injunctions 5703 Reamey, McCahan v., 33 Pa. St., 535, Account 5397 Rea's Appeal, 13 W. N., 546. Accoimt 5396 Receiver of Taxes, Inre, 4 Dist. Rep., 71, Injunctions 5707 Redfield, Sullivan v., 1 Paine, 441, Injunctions 5655 Redman, Durdant v., 1 Vern., 78, Amendments 5913 Reed, Bell v., 31 Leg. Int., 389, Injunctions 5693 Reed, Bishop v., 3 W. & S., 364, Accident 5421 Reed, City v., 113 Pa. St., 468, Injunctions 5699 Reed v. HoUibaugh, 3 C. C, 20, Partition 5821 Reed v. Horn, 143 Pa. St., 337, Accident 544T Reed v. Jones, 8 Wise, 392, Specific Performance.. 5731 TABLE OP CASES. cli Section Eeed, McConomy v., 153 Pa. St., 42, Masters 6034 Reed v. Stevenson, 6 W. N., 174, Discovery 5463 Eeed v. Trust Co., 113 Pa. St., 574, Partition 5776, 5801 Reader v. TruUinger, 151 Pa. St., 287, Account 5408 Eeeder v. Ti-uUinger, 151 Pa. St. , 287, Accident 5438, 5450 Reeder v. Trullinger, 151 Pa. St., 287, Decrees 6093 Reed's Appeal, 7 Atl., 174, Account 5395 Reed's Appeal, 7 Atl., 174, Answers 5970 Reed's Estate, 3 Dist. Rep., 503, Specific Performance 5720, 5722 Reel V. Elder, 62 Pa. St., 808, Dower 5553, 5559 Rees V. Exposition Society, 2 C. C, 385, Injunctions 5701 Rees, Sutton ■!;., 9 Jur. (N. S.), 456, Execution 6136 Reese v. Waters, 4 W. & S., 145, Dower 5557 Reeser's Appeal, 5 Atl., 445, Injunctions 5648 Reeser's Appeal, 100 Pa. St., 80, Costs 6110 Reeside v. Reeside, 49 Pa. St., 323, Account 5394 Reeside v. Reeside, 6 Phila., 507, Masters 6036 Reeve v. Atty.-Genl., 2 Atk., 333, Who may be Sued 5334 Reeves, Blanchard v., 1 Fisher, 103, Injunctions 5651 Reeves, Pancoast v., 7 Phila., 388, Amendments 5905 Reid V. Anderson, 6 Lane, 36, Masters 6084 Reidy v. Small, 154 Pa. St., 505, Trusts 5747 Reigel v. Ins. Co., 31 W. N., 533, Answers 5970 Reimar, Cleavinger v., 3 W. & S., 486, Trusts 5740 Eeimer, Comm. v., 39 Leg. Int., 108, Injunctions 5676 Reimer's Appeal, 100 Pa. St. , 183, Injunctions 5676 Reitenbaugh v. Ludwick, 31 Pa. St., 131, Accident 5450 Remington, Fallon v., 10 W. N., 119, Injunctions 5647 Remington, McGowin v., 12 Pa. St., 56, Specific Performance 5720, 5731 Remson, Holmes v., 7 Johns. Chanc, 386, Decrees 6095 Rennyson v. Rozell, 16 W. N., 89, Specific Performance 5733 Reno, R. R. Co. v., 53 Pa. St., 334, Injunctions 5639 Renshaw v. Cans, 7 Pa. St., 119, Accident 5446 Renshaw, Gans v., 2 Pa. St., 34, Specific Performance 5733 Reybum, Blanchard v., 33 Leg. Int., 339, Injunctions 5676 Reynolds V. Baylor, 3C. P.,54; 7 Lane. Law Review, 40, Examiners . . 6023 Reynolds v. Baylor, 3 C. P., 54, Costs 6130 Reynolds, Brotherton v., 164 Pa. St., 134, Masters 60.34 Reynolds v. Caldwell, 51 Pa. St. , 398, Account 5396 ci;; TABLE or CASES. Section Eeynolds, Mitohel v., 1 Sm. Lead. Cos., *508, Injunctions 5666 EhaU, Walsh v., 2 Dist. Rep., 97, Interpleader 5863 Rhea v. Forsyth, 37 Pa. St., 503, Injunctions 5689 Rhine v. Robinson, 37 Pa. St., 30, Specific Performance 5733 Rhodes, Fussell v., 3 Phila., 165, Specific Performance 5730 Rice V. E. R. Co., 9 Phila., 394, Masters 6037 Rice, Walsh v., 1 Lack. L. E., 63, Injunctions 5647 Rice, Wheeler v., 8 Phila., 115, Injunctions 5639 Richards v. Cooper, 5 Beavan, 804, Who Must be Joined 5339 Richards' Appeal, 100 Pa. St. , 53, Accident 5447 Richards' Appeal, 57 Pa. St. , 105, Injunctions 5707 Richardson v. Hulbert, 1 Anstruther's Rep., 65, Who Must be Joined.. 5348 Richardson v. Miller, 1 Sim., 133, Who may Sue 5395 Richardson's Estate, 133 Pa. St. , 393, Dower 5553 Richey v. Hathaway, 149 Pa. St., 307, Account 5894 Richmond, City v., 3 Vernon's Rep., 431, Who Must be Joined 5353 Richmond v. Yates, 3 Baxt., 304, Trusts 5748 Ricketts, Brown v., 3 Johns. Chanc, 435, Replications 5993 Ricketts' Appeal, 31 W. N., 339, Amendments 5911 Riddell, Dunlap ■«., 7 W. N., 466, Receivers 5583 Riddle's Estate, 19 Pa. St., 431, Review , 5874 Eidgeway, Squires v., 1 Leg. Gaz., 510, Demurrers 5945 , Riegel, Frank v., 3 Pears., 53, Costs 6110 Riegel v. Ins. Co., 37 W. N., 398 ; 140 Pa. St., 193 ; 46 Leg. Int., 516 ; 153 Pa. St., 134, Accident 5433 Riegel v. Ins. Co., 31 W. N., 583, Answers 5970 Riegel v. Riegel, 14 W. N., 303, Injunctions 5647 Riehle, Ohlsen v. , 15 W. N. , 437, Examiners 6033 Riel V. Gannon, 161 Pa. St., 389, Specific Performance 5733 Eiesz's Appeal, 78 Pa. St., 485, Specific Performance 5733 Eiggs V. Cragg, 36 Hun, 89, Who may Sue 5811 Eightley, Thurlow v., 19 Phila., 334, Discovery 5475 Eiley u. Telegraph Co., 47 Ind., 511, Bills of Peace 5844 Eink V. Barr, 8 W. N., 303, Injunctions 5707 Eink V. St. John, 39 Barb., 585, Eeceivers 5594 Ritchie, Bank v., 8 Peters, 138, Who may be Sued 5332 Rittenhouse's Estate, 1 Pars., 313 ; 103 Pa. St., 358, Review 5874, 5875 Rittespaugh v. Lewis, 103 Pa. St., 1, Accident 5433 Eobb V. Pepper, 11 W. N., 497, Execution 6134 X^LUluE, OF CASES. cliii Section bobbins v. Green, 1 "W. N., 143, Dower 5558 Roberts v. Heim, 27 Ala., 678, Decrees 6095 Roberts, Male v., 3 Esp. Rep., 163, Accident 5416 Roberts v. Sheldon, 8 BisseU, 398, Injunctions 5661 Roberts v. Thomas, 1 Del., 89, Injunctions 5676 Robertson v. Hill, 4 Off. Gaz. , 132, Injunctions 5651 Robinson v. Beall, 26 Ga., 17, Who ma}' Sue 5311 Robinson v. Dis, 18 W. Va., 528, Want of Parties 5961 Robinson, Elder v., 19 Pa. St., 364, Specific Performance 5733 Robinson, Pepper v., 32 W. N., 300, Answers 5970 Robinson v. R. R. Co., 66 Pa. St., 160, Receivers 5613 Robinson, Rhine v., 27 Pa. St., 30, Specific Performance 5723 Robinson v. Robinson, 29 W. N., 159, Trusts 5737 Robinson v. Smith, 3 Paige, 223, Want of Parties 5961 Robinson, Turner v. , 1 Sim. & Stu. ,313, Preparation 5384 Robinson, Turner v., 1 Simons & S., 3, Demurrers 5944 Rooh, Brigstocke v., 7 Jur. (N. S.), 63, Perpetuation 5539 Rochester, Gompers v., 56 Pa. St., 194, Injunctions 5666 Rockafellow v. Baker, 41 Pa. St., 319, Accident 5431 Eockley, Burdett v., 1 Vernon, 118, Dower 5565 Rockley, Burdett v., 1 Vernon, 58, Execution 6143, 6143, 6144 Rockwell V. Langley, 19 Pa. St., 503, Decrees 6095 Roddy's Appeal, 72 Pa. St., 98, Marshalhng Assets 5836 noddy's Appeal, 99 Pa. St. , 10, Rehearing 6100 Rodenhausen v. Craven, 141 Pa. St., 546, Injunctions 5676 Uodney, List v., 83 Pa. St., 483, Specific Performance 5723 Rodney v. Washington, 16 W. N., 226, Dower 5552 Roese v. Barry, 1 W. N., 20, Who may Sue 5304 Rogers v. Davidson, 4 Penny., 472, Account 5396 Rogers V. Goore, 17 Ves., 130, Replications 5998 Rogers, Huntington v., 9 Ohio, 511, Specific Performance 5721 Rogei-s, Hutchins v., 22 W. N., 79, Injunctions 5644 Rogers, Parry v., 1 Vernon, 441, Perpetuation 5535 Rogers v. Playford, 13 Pa. St., 181, Account 5397 Rogers i;. Smith, 4 Pa. St., 93, Accident 5451 Rogers, Steers v., 62 Law Jour. Rep. (N. S.), 671, Account 5395 Rogers v. Williams, 38 Leg. Int., 341, Specific Performance 5721 Rogers v. Williams, 8 Phila., 133, Specific Performance 5733 J{ogers V. Williams, 4 Brewster, 148, Examiners 6033 cliv TABLE OF CASES. Section- Roland, Tiernan v., 15 Pa. St., 429, Specific Performance 5733: EoUins V. Henry, 77 N. C, 467, Trusts 574a Rolston V. Commissioners, 120 U. S., 391, Who may be Sued 5326- Roseu. Lloyd, 1 Clark, 333, Discovery 5475 Rose V. Page, 2 Simons' Rep., 471, Who Must be Joined 5339 Rose V. Rose, 1 Phila., 365, Amendments 5904 Rose V. Savings Fund, 6 Phila., 10, Discovery 5468 Eosebery's Appeal, 31 Leg. Int. , 101, Appeals 6183 Rosenthal, Diller v., 6 Luz. Leg. Reg., 33, Injunctions 5639- Ross, Coleman v., 46 Pa. St., 180, Answers 5970- Ross, Coleman v., 46 Pa. St., 186, Costs 6111 Ross, Evans v., 107 Pa. St., 231, Dower 5552; Rothschild, Columbian Government ■». , 1 Sim., 94, Specific Performance 571^ Rothschild, Columbian Government v., 1 Sim., 103, Demurrers 5944 Roumfort v. Harrisburg, 3 Pearson, 101, Injunctions 5684 Roundtree, McLain v., 1 Hempst. C. C, 245, Specific Performance. ... 5721 Roupell, EUice v., 32 Beav., 308, Pei-petuation 5537, 5541 Rourke, McElwee v., 43 Leg. Int., 280, Costs 6114 Rousmanier, Hunt v. , 8 Wheaton, 174, Accident 5417 Routh V. Peach, 2 Anst. , 519, Preparation 5388 Rowan v. Manfg. Co., 33 Conn., 1, Cross-bills 5891 Rowand v. Finney, 96 Pa. St., 192, Accident 5447 Rowan's Appeal, 35 Pa. St. , 393, Specific Performance 5723- Rowe, Norway v., 19 Ves. Jr., 144, Account 5399 Rowley's Appeal, 115 Pa. St., 150, Answers 5968, 5970 Royal's Estate, 40 Leg. Int., 171, Execution 6133 Rozell, Rennyson v., 16 W. N., 89, Specific Performance 5723 Rudolph V. Covell, 5 Iowa, 535, Specific Performance 5721 Ruff's Appeal, 117 Pa. St. , 310, Specific Performance 5723 Ruland, Church ?;., 64 Pa. St., 432, Trusts 5739 Rush, Coram, v., 14 Pa. St., 186, Injunctions 5676 Rush V. Levpis, 31 Pa. St., 72, Trusts 5733 Eushton V. Harrington, 1 W. N., 79, Receivers 5596 Russ V. Telephone Co., 3 Dist. Eep., 654, Costs 6114 Eu9sell, Denn v. , 1 Dick. , 427, Who may Sue 5318, 5321 Russell V. East Anglian Co., 3 Macn. & Gordon, 104, Execution 6133 Eussell, Lansing v., 13 Barb., 510, Decrees 6095 Russell, Loscombe v., 4 Simons' Rep., 11, Account 5399> Russell V. Sharp, 1 Jac. & Walker, 462, Who may Sue 5295.. TABLE OP CASES. cIt Section.1 Russell, Sublicich v., L. R., 3 Eq., 441, Interpleader 5862 Russell's Appeal, 75 Pa. St., 270, Accident 5420 Russell's Appeal, 34 Pa. St., 358, Review 5874, 5877 Russell's Appeal, 34 Pa. St., 258, Answers 5984 Rust V. R. R.- Co., 16 W. N., 286, Injunctions 5701 Ruston V. Ruston, 2 Ball., 343, Marshalling Assets 5833, 5834 Ruth, Applegate v., 15 W. N., 127, Who may Sue 5304 Ruth, Mattes v., 7 Luz. L. Rep., 238, Amendments 5904 Rutt, Ranck u., 9 L. Bar, 186, Masters 6031 Rutter, Cud i;., 1 P. Wms., 570, Specific Performance 5720 Ryder, Morgan v., 1 Vesey & Beames, 30, Dower 5560" Ryves v. Ryves, 3 Ves., 343, Preparation 5388^ S. Saake v. Domer, 3 Dist. Rep., 170, Account 5410' SackviUe v. Aylesworth, 1 Vernon, 105, Perpetuation 553ft Saeger's Appeal, 96 Pa. St., 479, Specific Performance 5732 Sage, Goettel v., 117 Pa. St., 298, Accident 5424 Sage V. McGuire, 4 W. & S., 238, Specific Performance 5731 Saint, Borough v., 6 Cent. Rep., 143, Masters 6034 Sailor's Estate, 3 Dist. Rep. , 489, Examiners 6023 Salber, Young v., 2 W. N., 394, Injunctions 5638 Sallade v. Township, 2 Pears., 48, Injunctions 5700 SaUade v. Township, 2 Pears., 51, Decrees 6080- Sallade v. Township, 2 Pears., 51, Costs 6111 Sallade's Appeal, 36 Pa. St., 439, Trusts 5740 Sale, Johnson v., 1 Leg. Gaz., 413, Amendments 5910- Salmon v. Ranee, 3 S. & R., 311, Specific Performance 5723 Salsbury v. Black, 119 Pa. St., 200, Specific Performance 5723 Salvidge v. Hyde, 5 Maddock, 138, Preparation 5384 Sampson, Wiswall v., 14 How. (U. S.), 52, Receivers 5569 Sampson's Estate, 4 Dist. Rep., 204, Dower, 5560 Sampson's Estate, 4 Dist. Rep., 204, Partition 5790' Sanderson, Coal Co. v., 113 Pa, St., 126, Injunctions 567T Sandoe's Appeal, 65 Pa. St., 314, Marshalling Assets 583? Sanger v. Upton, 91 U. S., 60, Who may Sue 5311 Sank V. City, 4 Brewster, 133, Injunctions 5684 Sank V. Steamship Co., 5 Phila., 499, Specific Performance 5730 •Clvi TABLE OF CASES. Section rSankey v. Hawley, 118 Pa. St., 30, Accident 5450 Sansom, Blygh v., 37 W. N., 390, Accident 5432 Sapp, Collier v., 49 Ga., 98, Receivers 5582 Sargent v. Seagrave, 3 Curtis, 553, Injunctions 5653 Sargent Mnfg. Co. v. Woodruff, 5 Bissell, 446, Injunctions 5651 Santissima v. Trinidad, 7 Wheat., 383, Who may be Sued 5336 Sarver's Appeal, *81 Pa. St., 183, Corporations 5537 Sauer v. MoUinger, 138 Pa. St. , 338, Appeals 61G4 Savage v. City, 16 Phila. , 174, Injunctions 5039 Savage v. Fortner, 3 Chest., 371, Amendments 5904 Savage, Gunn v., 35 Fed. Rep., 101, Injunctions 5655 Savage v. Weber, 5 Kulp, 91, Receivers 5oS0 Savings Fund v. Clark, 11 W. N., 118, Interpleader 5833 Savings Fund, Rose v., 6 PhUa., 10, Discovery 54C3 Savings Fund v. Sowers, 134 Pa. St., 354, Answers 5370 -Savoy, Babbitt v., 3 Gushing, 530, Bills of Peace 5843 Sawer v. Gosser, 1 W. N., 55, Corporations 5537 Sawyer v. Woodbury, 7 Gray, 499, Decrees 600.> Sayen v. Johnson, 4 C. C, 360, Costs Gill Sayer, Horton v., 39 Leg. J. Rep. (Ex.) (N. S.), 38 ; 4 Hurls. & N. Exch., 643, Account 5397 Saylor v. Leedom, 5 Montg. , 78, Trusts 5747 Scanlan, R. R. Co. v., 44 Tex., 649, BiUs of Peace 5847 Scarlet v. Hunter, 3 Jones Eq. (N. C), 84, Specific Performance 5731 Sohada, Coal Co. v., 11 W. N., 30, Receivers 5611 Schadewald's Estate, 6 W. N., 96, Execution 6133 Schaefer, Protohettu, 11 Phila., 166, Prosecution 6061 Sohaefler, Schuey v., 130 Pa. St., 16, Specific Performance 5731 Sohaeffer, Swoyer v., 3 Dist. Rep., 749, Partition 5771 Schafer's Appeal, 110 Pa. St. , 383, Specific Performance 5731 Schandein v. Bach, 11 W. N., 303, Injunctions 5677 Scheetz's Appeal, 35 Pa. St. , 88, Injunctions 5673 Schepper's Appeal, 33 W. N., 570, Masters 6034 Schettiger v. Hopple, 3 Grant, 54, Accident 5447 Schettleru. Fort, 43 Wise, 48, Bills of Peace 5844 SchiefEelin, Field v., 7 Johns. Chanc, 352, Cross-bills 5891 Schleoht, White v., 9 W. N., 77, Injunctions 5641 Schleoht's Appeal, 60 Pa. St., 173, Receivers 5581 .Schlccht's Appeal, 60 Pa. St., 173, Trusts 5748 TABLE OF CASES. clviL SeotioiL Schlecht's Appeal, 60 Pa. St., 172, Appeals 6178. Schleiffer, Wolf v., 2 Brews., 563, Injunctions 5647 Schmidt's Estate, 35 Leg. Int., 154, Rehearing 6103 Schneider, Miller v., 5 Rawle, 140, Partition 57T6 Schnorr's Appeal, 67 Pa. St., 188, Corporations 5527 Schoch's Appeal, 33 Pa. St., 351, Account 5393 Schoener, Scholl v., 1 Woodward, 200, Preparation 5373 Schoener, Scholl v., 1 Woodward, 200, Want of Parties 5C61 Schoener, Scholl v., 1 Woodward, 134, Costs G120 Schofield, Campbell r., 29 Leg. Int., 325, Injunctions 5639 Schofield V. Shiffer, 156 Pa. St. , 66, Accident 5433 Scholl V. Schoener, 1 Woodward, 200, Preparation 5373 Scholl V. Schoener. 1 Woodward, 200, V/ant of Parties 5961 SchoU V. Schoener, 1 Woodward, 134, Costs 6130- Scholl, Sorvert)., 1 Dist. Rep., 575, Specific Performance 5723 School V. Cooper, 150 Pa. St. , 78, Injunctions 5707 School V. Cooper, 150 Pa. St., 78, Costs 6110' School Board, Bowers v., 3Pears., 227, Costs 6111 School Board, Witherop v., 7 C. C, 451, Injunctions 5702 School Board's Appeal, 74 Pa. St., 257, Injunctions 5700 School Directors, Wharton v., 42 Pa. St., 358, Injunctions 5700' School District, Arthur v., 35 W. N., 289, Injunctions 5700 School District, Canal Co. v., 7 Luz. L. Reg., 93, Injunctions 5700 School District v. Macloon, 4 Wise, 79, Specific Performance 5721 School District v. Thompson, 2 Woodward, 345, Amendments 5904 School District's Appeal, 56 Pa. St., 318, Amendments 5700 Schooley v. Shoemaker, 4 Kulp, 345, Replications 5992 Schoonmaker, Emerson v., 135 Pa. St., 437, Amendments 5914 Schott V. Bragg, 1 T. & H. Pr., 96, Answers 5968 Schuey v. Schaeffer, 130 Pa. St., 16, Specifio Performance 5721 Schultz's Appeal, 9 Atl. Rep., 320, Appeals 6174 Schwartz v. Keystone Oil Co., 32 W. N., 137, Receivers 5569 Schwartz v. Oil Co., 153 Pa. St. , 283, Receivers 5604 Schwartz v. Oil Co., 35 W. N., 387, Costs 6110 Schwartz' Estate, 42 Leg. Int., 16, Dower 5550 Schwarz ■;;. Sears, 1 Mich. Chanc. Cases, 21, Masters 6028 Schwenk v. County, 26 Pa. St. , 281, Appeals 6104 Scott V. Avery, 5 House of Lords Cases, 811, Account 5396 Scott, Fox v., 2 PhUa., 151, Trusts 5733 clviii TABLE OF CASES. Section Scott, Geissler v., 13 Leg. Int., 312, Specific Performance 5723 Scott V. Liverpool, 28 L. J. Rep. (Ch.) (N. S.), 380 ; 3 DeG. & Jones, 334, Account 5396, 5397 Scott V. McCleister, 12 W. N., 236, Injunctions 5629 • Scott, Morgan i;., 26 Pa. St., 51, Specific Performance 5731, 572-3 Scott V. Nesbit, 3 Cox, 183, Demurrers 5944 .Scott V. Onderdonk, 14 N. Y. , 9, Quia Timet 5855 Scott, Tarr v., 4 Brewster, 49, Specific Performance 5720, 5721 Scott's Case, 1 Grant, 237, Execution 6133 Scranton, Mattliews v., 8 Luz. Leg. Reg., 68, Execution 6134 Scrantonu. Steel Co., 154 Pa. St., 171, Injunctions 5629 Soudamore, Morgan v., 3 Ves. Jr., 318, Revivor 5923 Seagrave, Sargent v. , 3 Curtis, 553, Injunctions 5658 Searight v. Bank, 162 Pa. St., 504, Account 5894 Searighti). Bank, 163 Pa. St., 504, Demurrers 5944 Searight, Morrison v., 4 Baxter (Tenn.), 479, Cross-bills 5891 Sears, Parker i;., 1 Fisli., 98, Injunctions 5650, 5655 Sears, Sch^warz v., 1 Mich. Chanc. Cases, 21, Masters 6038 Seaton v. Jamison, 7 Watts, 583, Dower 5559 SesiYejv. Jenkins, 15 W. N., 134, Receivers 5614 Seeger, Bauer «., 1 W. N., 98, Masters 6035 Seeley, Woodward v., 50 Amer. Dec, 445, Bills of Peace 5840 SeiberUtch, Langolf v., 3 Pars., 64, Corporations 5537 Seiberlitch, Langolf v. , 2 Pars. , 64, Injunctions 5701 Seibert v. Seibert, 1 Brewster, 531, Receivers 5573 Seibert v. Seibert, 1 Brewster, 531, Trusts 5741 Seidel, Brown v., 153 Pa. St., 60, Injunctions 5661 Seifert, Lewis v., 116 Pa. St., 638, Receivers 5615 Seirer, Clark v., 7 Watts, 107, Specific Performance 5723 Seitz V. BufEum, 14 Pa. St., 70, Want of Parties 5961 Seitzinger, Wetherill ?;., 9 W. & S., 177, Specific Performance 5722 Sellers v. Bacon, 4 Phila., 52, Answers 5978 Sellers, Fulton v., 4 Brewster, 42, Injunctions 5662 Sellers, Huston v., 85 Leg. Int., 362, Who Must be Joined 5360 Sellers, Huston v., 35 Leg. Int., 263, Preparation 5384 Sellers, Huston v., 35 Leg. Int., 363, Answers 5979 Sellers v. R. R. Co., 1 W. N., 395, Injunctions 5641 Sellers v. R. R. Co., 10 PhUa., 819, Injunctions 5677 Seltzer v. Powell, 8 PMa., 396, Injunctions 5663 TABLE OF CASES. clix Section Sennett, Warren v., 4 Pa. St., 114, Marshalling Assets 5836 Sensenig v. Parry, 113 Pa. St., 115 ; 5 Atl. Rep., 11, Injunctions .'5G44 SerreU v. CoUins, 4 Blatch., 62, Injunctions 5654 Severn v. Fletcher, 5 Sim., 457, Amendments 5004 Sewage Co. v. Davis, 8 Phila., 625, Injunctions 5GJ0 Sewing Machine Co. v. Williams, 2 Fish., 133, Injunctions 5G50 Sexsmith v. Smith, 32 Wise, 299, Bills of Peace 5844 Shaffer v. Eichert, 133 Pa. St., 285. Amendments 5914 Shaffer v. Shaffer, 50 Pa. St., 394, Dower 5558 Shaffner v. Shaffner, 145 Pa. St.. 163, Trusts 5737 Shaftoe, Hales v., 1 Ves. Jr., 86, Execution 6140 Sh.allcross' Estate, 35 Leg. Int. , 456, Review 5874 Shanks i: Dupont, 3 Peters, 343, Dower 5557 Sharp V. BufBngton, 2 W. & S., 454, Who may Sue 5304 Sharp ?;. Pettit, 4DaU., 213, Dower 5559 Sharp, RusseU v., 1 Jac. & Walker, 462, Who may Sue 5295 Shattuck V. Carson, 3 Cal., 588, Quia Timet 5855 Shaub, City v., 7 Lane. Law. R., 340, Injunctions . 5676, 5685 Shaw V. Canal Co., 41 Leg. Int., 165, Who may Sue 5313 Shaw V. Coster, 8 Paige Chanc. (N. Y.), 339, Interpleader 5865 Shaw, Delondre v., 2 Sim., 337, Demurrers 5944 Shaw V. McCameron, 11 S. & R., 252, Marshalling Assets 5833 Shaw, Phillips ?;., 8 Ves., 241, Demurrers 5944 Shaw V. Transit Co., 4 C. C, 363, Injunctions 5677 Shaw V. Wallis, 1 Yeates, 176, Who may Sue 5303 Shaw V. Wright, 3 Ves. Jr., 33, Execution 6140 Sheafew. Sheafe, 40 N. H., 516, Quia Timet 5855 Sheafer, Bechtel v., 21 W. N., 65, Interpleader 5863, 5864 Shears v. Dusenbury, 13 Gray, 293, Decrees 6095 Shea's Appeal, 131 Pa. St., 302, Dower 5559 Shea's Appeal, 131 Pa. St., 303, Rehearing 6103 Sheble, Cummings v. , 1 Phila. , 492, Injunctions 5707 Shedwick v. Church, 160 Pa. St., 57, Costs 6111 Sheffield v. Duchess of Buckinghamshire, 1 Atk., 628, Who may Sue 5308 Shelby, Comm. v. , 13 S. & R. , 348, Marshalling Assets 5833 Sheldon, Roberts v. . 8 Bissell, 398, Injunctions 5661 Shell V. Kemmerer. 3 Pearson, 393, Injunctions 5691 Shelmerdine v. Welsh, 47 Leg. Int. , 386, Corporations 5517 elx TABLE Ol" CASES. Section Shenandoah's Appeal, 3 W. N., 46, Injunctions SGQO' Shenk, Weaver v., 154 Pa. St., 206, Specific Performance 5720 Shepherd, Pettit v., 5 Paige, 493, Quia Timet 5855 Shepley v. Rangely, 2 Ware's Rep., 253, Bills of Peace 5841 Shepp V. Jones, 35 W. N., 29, Injunctions 5662 Sheppard, Paradlce v., 1 Dick., 136, Who may Sue 5316 Sheridan v. Sheridan, 26 W. N., 254, Partition 5769 Sheriff v. Oil Co., 7 Phila., 4, Preparation 5373, 5384 Sherk, Stinet)., 1 W. & S., 195, Accident 5447 Sherrard, Thompson v., 35 Barb., 593 ; 22 How. Prac, 155 ; 12 Abbott's Prac, 427, Receivers 5582 Shields V. Barrow, 17 How. (U. 8.), 145, Cross-bills 5886 Shields v. Trammell, 19 Ark., 51, Specific Performance 5721 ShiflEer, Schofield v. , 156 Pa. St. , 66, Accident. 5433 Shillingford v. Church, 15 W. N., 437, Examiners 6023 ShiUito V. Shillito, 160 Pa. St. ,167, Account, 5394 Shillito V. Shillito, 160 Pa. St., 167 ; 34 W. N., 136, Demurrers 5944 Shimer's Appeal, 16 Leg. Int. , 124, Appeals 6179 Ship Bldg. Co., Banking Assn. v., 19 W. N., 471, Receivers 5602 Shipton 1'. Rawlins, 4 Hare, 638, Preparation 5878 Shira, Liggett v., 33 W. N.. 558, Accident 5449 Shirey, Krecker v. , 2 Dist. Rep. , 24, Want of Parties 5961 Shirk's Appeal, 3 Brewster, 119, Account 5891 Shirk's Estate, 8 Leg. Gaz., 11 Costs 6110 Shirley v. Earl of Ferrers, 3 P. Wms., 77, Perpetuation 5538 Shirt V. Westby, 16 Ves., 393, Ti-usts 5751 Shirtz V. Shirtz, 5 Watts, 255, Dower 5559 Shislcr's Estate, 20 W. N., 334, Specific Performance 5723 Shober v. Dutton, 6 Phila., 185, Specific Performance 5722 Shoemaker, Everhart v., 4 Kulp, 183, Partition 5823 Shoemaker v. Ins. Co., 82 Leg. Int., 264, Masters 6034 Shoemaker, Schooley v., 4 Kulp, 845, Replications 5992 Shope, Etnier v. , 43 Pa. St. , 110, Account 5397 Short V. Price, 17 Tex., 397, Specific Performance 5731 Shriver, Crawford v., 139 Pa. St., 239, Account 5410, 5412 Shroder's Appeal, 1 W. N., 528, Injunctions 5707 Shunk's Appeal, 2 Pa. St., 304, Marshalling Assets 5837 Sibbald v. U. S., 12 Peters, 492, Decrees 6095 Sibthorp, Pres. of St. Mary v., 1 Russ., 134, Amendments 5904 TABLE OP CASES. clxi Seetioii Sickles V. Tileston, 4 Blatch. , 109, Injunctions 5651 Sieman v. Austin, 33 Barb. , 9, Quia Timet 5855 Sieveking v. Behrens, 3 M. & C, 581, Interpleader 58fi6 Sigle V. Turnpike Co., 3 Lane. L. R., 258, Injunctions 5639 Silliman, Batten v., 3 Wallace Jr., 134, Injunctions 5650, 5657 SUUman V. Haas, 151 Pa. St., 53, Trusts 5736 Silliman, Patterson v., 38 Pa. St., 304, Answers 5970 Simmonds v. Lord Kinnaird, 4 Ves., 735, Execution 6139 Simmonds' Estate, 19 Pa. St., 439, Appeals 6183 Simmons v. Wood, 45 How. Prac, 368, Receivers 5601 Simms v Brouse, 10 PhUa. Rep. , 13 Receivers 5580 Simons v. Oil Co., 61 Pa. St., 302, Trusts 5745 Simpson v. Burton, 1 Beav. , 556, Preparation 5368 Simpson, Conner v., 104 Pa. St., 440, Account 5397 Simpson i;. Moore, 30 Barb. , 637, Who may Sue 5311 Simpson, Rankin v., 19 Pa. St., 471, Specific Performance 5731 Simpson's Appeal, 77 Pa. St. , 370. Injunctions 5643 Sims V. Chew, 15 S. & R., 197, Specific Performance 5733 Sims V. Chew, 15 S. &R., 197, Trusts 5738 Sinclair v. Commissioners, 33 Minn. , 404, Bills of Peace 5844 Singerly v. Fox, 75 Pa. St., 112, Receivers 5611 Sipe, Tospon v., 116 Pa. St., 588, Dower 5552 . Siren, The, 7 Wall., 152, Who maybe Sued 5326 Sistare v. Sistare, 3 Root (Conn.), 468, Dower 5557 SkUton, MoMichael v. , 13 Pa. St. , 317, Partition 5776 Skrine v. Powell, 15 Sim., 8, Perpetuation 5542 Slack V. Evans, 7 Price, 278 re.. Preparation 5383 Slade V. Van Vechten, 11 Paige, 21, Receivers 5609 Slegeli;. Lauer, 148 Pa. St., 237, Quia Timet 5855 Slemmer's Appeal, 58 Pa. St., 168, Receivers 5580 Slemmer's Appeal, 58 Pa. St., 155, Answers 5970 Slemmer's Appeal, 58 Pa. St., 155, Decrees 6086 Sloan V. Moore, 37 Pa. St., 317, Account 5399 Sloan V. Moore, 37 Pa. St. , 317, Receivers 5571, 5573 Sloan V. Moore, 87 Pa. St., 317, Injunctions 5698 Slobig, Baker u, 5 C. C, 383, Costs 6121 Small V. Atwood, 1 Younge's Rep., 407, Who Must be Joined 5346 Small, Comm. v., 26 Pa. St., 43, Injunctions 5618 Small, 'Ra.uv., 144 Pa. St., 304, Account 5395 Clxii TABLE OF CASES. Section SmaU, Reidy v., 154 Pa. St., 505, Trusts .- 5747 Small's Appeal, 9 Atl. Rep., 337, Injunctions 5647 Smaltz's Appeal, 99 Pa. St., 812, Specific Performance 5720 Smart v. ChamberUn, 26 W. N. , 272, Who may Sue 5803 Smith, Angel v., 9 Ves., 335, Execution 6133 Smith, Angell v., Prec. Chanc, 219, Who may Sue 5321 Smith, Blauvelt v., 7 C. E. Green, 343. Execution 6135 'Smitli, Bromley v., 1 Simons' Rep., 8, Who Must be Joined 5346 .'Smith, Brooke v., 33 W. N., 74, Interpleader 5862 ■Smith, Brooksbank v., 3 Young & Collier, 58, Trusts 5750 Smith V. Brotherline, 62 Pa. St. , 461, Trusts 5740 ^mith, CavU v., 3 Brown's Chanc. Cases, 362, Execution 6140 Smith, Connolly t;., 21 Wend. (N. Y.), 59, Dower 5557 ;Sniith, Coxe v. , 4 Johns. Chanc. , 271, Partition 5771, 5775 iSmith V. Cummings, 2 Pars., 92, Injunctions 5639 Smith V. Cummings, 1 Fish., 152, Injunctions 5655 Smith, Eldridge v., 34 Vermont, 484, Quia Timet 5855 Smith V. Ewing, 31 W. N., 193, Answers 5970 Smith V. Goodyear Co., 93 U. S.. 486, Injunctions 5652 Smith V. HoUis, 33 W. N., 485, Injunctions 5703 Smith V. Hood, 25 Pa. St., 218, Amendments 5914 Smith, Jones v., 14 111., 229, Cross-bills 5886, 5891 Smith V. Kammerer, 152 Pa. St., 98, Who may be Sued 5334 Smith, Lanning v., 1 Pars., 13, Preparation 5376 Smith, Lanning v., 1 Pars., 17, Answers 5983 Smith, Lanning v., 1 Pars., 13, Decrees 6086 Smith, Lewis 1;., 1 M. &G., 417, Injunctions 5667 Smith V. McCarthy, 56 Pa. St., 359, Injunctions 5707 Smith V. McConneU, 17 IU.,.139, Bills of Peace 5840 Smith, Mole v., Jacob's Chanc. Rep., 494, Preparation 5384 Smith V. Mules, 9 Hare's Rep. , 556, Account 5399 ;Smith, Nash v. , 6 Conn. , 421, Interpleader 5862 Smith, Needham v. , 2 Vem. , 464, Reheai-ing 6105 Smith, Page v., 48 Vt., 285, Who may Sue 5311 Smith, Robinson v., 3 Paige, 222, Want of Parties 5961 Smith, Rogers v., 4 Pa. St., 98, Accident 5451 : Smith, Sexsmith v. , 32 Wis. , 299, Bills of Peace 5844 S;nith, Spering v., 9 Phila., 277, Costs 6110 iSmit'.i, Thayer u., 9 Met., 469, Quia Timet 5856 TABLE OF CASES. clxiii Section -Smith's Appeal, 113 Pa. St., 580, Injunctions 56G6 Smith's Appeal, 104 Pa. St., 381, Trusts 5733 Smith's Appeal, 23 Pa. St. , 310, Marshalling Assets .- 5834 Smith's Appeal, 74 Pa. St., 191, Marshalling Assets 5837 Smith's Estate, 144 Pa. St., 438, Trusts 5733 Smith's Estate, 5 W. N., 495, Review 5874, 5875 Smithson, Hardcastle v., 3 Atk., 246, Who Must be Joined 5353 .Smoot V. Harrah, 5 W. N., 147, Who may Sue 5305 Smoot r. Harrah, 5 W. N., 147, Costs 6119 Snebly v. Linnell, 36 Leg. Int., 193, Production 6003, 6005, 6006 Snebly f. LinneU, 36 Leg. Int., 193, Masters 6038 Snodgrass v. Gavit, 28 Pa. St., 221, Account 5396, 5897 Snowden, Comm. v., 1 Brewster, 219, Injunctions 5712 .Snyder v. Ives, 42 Iowa, 157, Accident 5448 Snyder, Williams v., 4 Luz. L. Reg., 273, Amendments 5905 Snyder's Appeal, 8 Atl. Rep., 26, Injunctions 5687 Soap Co., Lumber Co. v., 2 Dist. Rep., 802, Receivers 5580 Socher's Appeal, 104 Pa. St., 609, Answere 5970 Society v. Austin, 46 Cal., 415, Bills of Peace 5843 Society (Education) v. Bressier, 33 Leg. Int., 264, Specific Perform- ance 5733 Society, Gatzmer v., 147 Pa. St., 313, Injunctions 5629 Solomon v. Hertz, 40 N. J. Eq., 400, Injunctions 5667 Solomons, Benfields v. , 9 Ves. , 77, Demurrers 5944 Somers' Estate, 3 W. N., 263, Appeals 6177 Server, Assn. v., 33 Leg. Int., 359, Marshalling Assets 5887 Server t\ SchoU, 1 Dist. Rep., 575, Specific Performance 5722 Souder's Appeal, 57 Pa. St., 498, Accident 5453 SouthaU V. , 1 Younge Ch., 308, Demurrere 5944 Southern, Hagood v., 117 U. S., 52, Who may be Sued 5826 Southmayd v. Henderson, 13 W. N., 78, Who may Sue 5303 Southwood, Stanley v., 45 Pa. St., 189, Account 5397 Sower V. Weaver, 78 Pa. St., 443, Answers 5970 Sowers, Saving Fund v., 134 Pa. St., 354, Answers 5970 Sparhawk v. Rwy. Co., 54 Pa. St., 401, Injunctions 5629, 5676, 5707 Sparks, Walbank v., 1 Sim., 885, Interpleader 5866 Spaulding, IlUngworth v. , 9 Fed, Rep., 154, Injunctions 5655 Speakman v. Forepaugh, 44 Pa. St., 863, Specific Performance 5723 .Speckenagle, Hampton v., 9 S. & R., 212. Specific Performance . . . . 5721 clxiv TABLE OP CASES. Seetion Speed V. May, 17 Pa. St., 94, Receivers 5594 Speidel's Appeal, 107 Pa. St., 18, Dower 5552 Spencer, Campbell v., 3 Binn., 139, Specific Performance 5731 Spencer, Lewis?;., 7 W. Va., 689, Bills ofPeace 5846 Spencer's Appeal, 80 Pa. St., 317, Answers 5970 Spering v. Kern, 4 PhUa., 388, Injunctions 5647 Spering v. Lynn, 2 Vern., 376, Amendments 5914 Spering?;. Smith, 9 Phila., 377, Costs 6110 Spering's Appeal, 71 Pa. St. , 11, Who may Sue 5310 Spering's Appeal, 71 Pa. St., 11, Corporations 5496, 5498, 5511 Spering's Appeal, 60 Pa. St., 199, Answers 5968 Spielman v. OH Co., 14 "W. N., 350, Costs 6114 Spohn V. Stein, 1 Leg. Rec, 239, Masters 6034 Spragg V. Binkes, 5 Ves. , 583, Who may Sue 5300 Sprague. Frith v., 14 Mass., 455, Accident., 5416 Springs Co. v. McMeen, 161 Pa. St., 639, Corporations 5493 Sproulle-u. Bratton, MS., Partition 5799, 5810 SprouU's Appeal, 71 Pa. St., 137, Masters 6034 Squire, Perishal v., 1 Dick., 31, Who may Sue 5319 Squires v. Ridgeway, 1 Leg. Gaz., 510, Demurrers 5945 St. Clair School Board's Appeal, 74 Pa. St., 357, Injunctions 5700 St. John, Rink v., 39 Barb., 585, Receivers 5594 Stack, O'Hara v., 90 Pa. St., 477, Costs 6110 Stackhouse, Paxton v., 4 Kulp, 403, Cross-bills 5890, 5891 Stafford v. Stafford, 37 Pa. St., 144, Appeals 6174 Stagner, Warren v., 7 W. N., 137, Receivers 5570 Stallman's Appeal, 38 Pa. St., 300. Trusts 5738 Stanhope v. Manners, 2 Eden, 197, Corporations 5535 Stanley, Clark v., 10 Pa. St., 473, Corporations 5535 Stanley, Nailor v., 10 S. & R., 450, Marshalling Assets 5836 Stanley )). South wood, 45 Pa. St., 189, Account 5397 Stansbury v. Arkwright, 6 Sim., 481, Preparation 5388 Stanton v. AUen, 5 Denio (N. Y.), 434, Injunctions 5682 State V. Bridge Co., 13 How., 518, Injunctions 5684 State V. Callaway, 51 Mo., 395, Bills of Peace 5844 State, Chrisholm v., 3 Dall., 419, Who may be Sued 5335 State V. County, 51 Mo., 350, Bills of Peace ,'3844 State V. Dennison, 24 Howai-d, 66, Who may be Sued 5325 State, Grayson v. , 3 Dall. , 320, Who may be Sued 5325 TABLE OF CASES. clxv Section S;jte, Hollingsworth v., 3 Ball., 378 Who may be Sued 5325 State V. Page, 48 Vt. , 366, Who may Sue 5811 Slate V. StoU, 17 Wall., 435, Who may be Sued 5336 States, Dillon v. , 11 W. N. , 18, Injunctions 5676 Statler, Glenn v., 43 Iowa, 107, Accident 5448 Staveland, Lord Uxbridge v., 1 Ves. Sr., 56, Preparation 5874 Steamship Co. , Sank v. , 5 Phila. , 499, Specific Performance 5720 Steel Co., Bank t)., 31 W. N.,503, Discovery 5473 Steel Co., Barker w., 33 W. N., 109, Appeals 6177 Steel Co. , Scranton v. , 154 Pa. St. , 171, Injunctions 5639 Steele v. Briggs, 33 111. , 643 , Specific Performance 5731 Steele, Louisiana «., 134 U. S., 280, Who may be Sued 5336 Steer, Large v., 131 Pa. St., 30, Injunctions 5644 Steers v. Rogers, 63 L. J. Rep. (Ch.) (N. S.), 671, Account 5395 Stein V. North, 8 Yeates, 834, Specific Performance 5733 Stein, Spohn v., 1 Leg. Rec, 239, Masters 6034 Steinbeisser, Hoffman v. , 11 W. N. , 383, Receivers 5573 Steininger's Appeal, 1 Pitts., 348, Review 5874 Steinmetz, Mitchell v., 97 Pa. St. , 351, Specific Performance 5733 Stephan v. Daniels, 27 Ohio State, 537, Bills of Peace 5843 Stephens v. Cowan, 6 W., 511, Amendments 5914 Stephenson, Mathews v., 6 Pa. St., 499, Want of Parties 5960 Sterling ■;;. Ashton, 84 Leg. Int., 363, Decrees 6090 Sterling's Appeal, 111 Pa. St., 35, Injunctions 5673 Sterner, Gower v., 3 Wharton, 75, Accident 5443 Sterr's Estate, 7 W. N., 35, Prosecution 6058 Sterry v. Arden, 1 Johns. Chanc, 63, Cross-bills 5891 Stetson V. Peters, 16 Leg. Int., 147, Answers 5968 Stevens, Hovey u., 1 W. & M., 290, Injunctions 5650 Stevens, Miles v., 3 Pa. St., 21, Specific Performance 5721 Stevenson, Acheson v., 146 Pa. St., 228, Account 5394 Stevenson, Acheson v., 130 Pa. St., 633, Injunctions 5673 Stevenson, Acheson v. , 146 Pa. St. , 338, Injunctions 5687 Stevenson v. Anderson, 3 Ves. & B., 407, Interpleader 5863 Stevenson, Reed v.,6W. N., 174, Discovery 5463 Stevenson's Appeal, 33 Pa. St., 318, Review 5875 Stevenson's Estate, 7 W. N., 65, Execution 6133 Stewart, Bowman v., 165 Pa. St., 395, Account 5396 Stewart, Jamison v., 37 Leg. Int., 373, Who Must be Joined 5843 Clxvi TABLE OF CASES. Section Stewart, Jamison v., 37 Leg. Int., 273, Preparation 5878- Stewart v. Parnell, 46 Leg. Int., 128, Answers 5970. Stewart's Appeal, 19 P. L. J., 78, Who Must be Joined 5344 Stewart's Appeal, 78 Pa. St., 88, Accident 5447 Stewart's Appeal, 98 Pa. St., 377, Accident 5447 Stewart's Appeal, 56 Pa. St., 413, Corporations 5515- Stewart's Appeal, 56 Pa. St., 418, Injunctions 5673. Stichter, E. R. Co. v., 11 W. N., 325, Specific Performance 5733 Stienman, Latshaw v., 11 S. & R., 357, Amendments 5914r Still V. Blaney, 33 W. N., 536 ; 159 Pa. St., 264, Partition 5775- StiUe, Walsii v., 2 Pars., 17, Trusts 5736 Stine, Freeman v., 84 Leg. Int., 96, Preparation 5384 Stine, Freeman v., 86 Leg. Int., 422, Masters 6027 Stine V. Sherk, 1 W. & S., 195, Accident 5447 Stine, Spohn v., 1 Leg. Rec, 229, Masters 6034 Stinson, Gass v., 2 Sumner, 605, Masters 6027 Stitwell V. Williams, 6 Mad., 49, Trusts 574» Stockdale v. tJIlery, 37 Pa. St., 486, Account 5399 Stookdale v. UUery, 87 Pa. St., 486, Injunctions 5698. Stocker v. Hutter, 2 Northam., 53; 134 Pa. St., 19; 26 W. N., 231, Masters 6034, 603& Stocker ». Hutter, 184 Pa. St., 19, Costs 6110 Stockton V. Coal Co., 9 W. N., 110, Demurrers 5957 Stoddart, Peile v., 1 Macn. & Gord., 192, Production 6006 Stoever, Lineweaver v., 17 S. & R., 297, Dower 5559 Stoever's Appeal, 8 W. & S., 154, Marshalling Assets 5838- Stokely's Estate, 19 Pa. St., 476, Costs 6110 Stokes, Farley v., 1 Pars., 423, Specific Performance 5721 Stokes, Freeman v., 4 W. N., 459, Specific Performance 5720' Stokes, Ins. Co. v., 1 Brewster, 486, Trusts 5733 StoU, Wagner v., 17 Wallace, 425, Who may be Sued 5336 Stone, Lewen v., 3 Ala., 485, Quia Timet 5855 Stone, Sutton v., 1 Dickens, 107, Executions 6140 Stone's Appeal, 23 W. N. , 383, Appeals 6186 Stonehouse, Oldham ■«., 3 M. & C, 317, Rehearing 6105 Storer, Kimmel v., 18 Pa. St., 155, Who may Sue 5811 Stout, Aiman v., 42 Pa. St., 114, Accident 5431 Strange, Albert v., 1 M. & G.. 35, Injunctions 5667 Straus V. Barnett, 140 Pa. St., Ill, Injunctions 5676 TABLE OF CASES. clxvii Section Strausbury v. Arkwright, 6 Sim. , 481, Preparation 5388 Strawbridge, Wilson v., 4 W. N., 35, Injunctions 5676 Street v. Keim, 4 Kulp, 390, Receivers 5615 Streper, Buchanan v., 5 W. N., 289, Injunctions 6693 Streper, Buchanan v., 39 Leg. Int., 168, Examiners 6012 Sublicich v. Eussell, L. R., 3 Eq., 441, Interpleader 5863'. Sugden v. Sugden, 33 W. N., 136, Examiners 6022; Sullivan v. Redfield, 1 Paine, 441, Injunctions 5655. Summersou v. Hicks, 142 Pa. St., 345, Appeals 6183 Sunderland v. Whitesides, 7 Phila., 335, Injunctions 5673 Supervisors, Conam. v., 29 Pa. St., 131, Injunctions 5699' Supervisors, March v., 42 Wise, 502, Bills of Peace 5844 Supplee's Estate, 17 W. N., 39, Review 5874 Supply Co., Bank v., 150 Pa. St., 36, Masters 6034 Supply Co. , Clark Co. v. , 3 Dist. Rep. , 518, Receivers 5594 Surveyors, Feree v. , 9 Phila. , 518, Injunctions 5707 SutclifE V. Isaac, 1 Pars., 494, Injunctions 5691 SutlifiE V. Forgey, 1 Cowen (N. Y.), 89, Dower 555T Sutton, Couch v., 1 Grant, 114, Perpetuation 5541 Sutton, Couch v. , 1 Grant, 114, Quia Timet 5857 Sutton V. Rees, 9 Jur. (N. S.), 456, Execution 6133 Sutton V. Stone, 1 Dickens, 107, Execution 6140 Suydam, Coquillard v., 8 Blackf., 34, Answers 5964 Suydam v. Truesdale, 6 McLean C. C, 459, Answers 5964 Swain v. Ins. Co., 54 Pa. St., 455, Specific Performance 5733 Swank, Ins. Co. v., 103 Pa. St., 17, Accident 5449 Swartz, KeUer v., 137 Pa. St., 65, Account 5395, 5413: Swartz, Keller i;., 137 Pa. St., 66, Appeals 6179- Swayne v. Lyon, 67 Pa. St., 436, Specific Performance 5733- Swearinger v. Pendleton, 4 S. & R., 389, Trusts 5741 Sweetzer v. Atterbury, 100 Pa. St., 18, Appeals 6174 Sweetzer's Appeal, 71 Pa. St., 364, Accident 5450 Swentzel v. Bank, 29 W. N., 441, Costs 6111 Swift, Goldsmith v., 25 Hun, 201, Who may Sue 5311 Swift V. Hawkins, 1 Dallas, 17, History 5034 Swift V. Jenks, 19 Fed. Rep., 641, Injunctions 5653, 5657 Swift, Ward v., 6 Hare, 313, Execution 6136 Swisshelm's Appeal, 56 Pa. St., 475, Trusts 5743 Sworder, Dear v., 4 Law Reports (Chanc. Div.), 476, Cross-bills 5886 Clxviii TABLE OF CASES. Section Swoyer v. Schaeffer, 2 Dist. Rep., 749, Partition 5771 Sykes v. Thornton, 152 Pa. St., 94, Beceivers 5608 Sylvester v. Born, 132 Pa. St., 467, Specific Performance 5731 Symonds v. Duchess of Cumberland, 2 Cox, 411, Amendments 5912 T. Tack, O'Connor v.,2 Brewster, 407, Prodviction 6003, 6004, 6007. 0009 Taggart, Campbell v., 32 Leg. Int., 396, Injunctions 5707 Talbot V. Chester, 2 Chest., 57, Trusts 5738 Talbot V. Marshfleld, L. E., 1 Eq. , 6, Production 6008 Talmage v. Pell, 9 Paige, 410, Cross-bills 5894 Tankersley, Graham v., 15 Ala. (N. S.), 634, Answers 5964 TappeniJ. Evans, 11 N. H., 327, Quia Timet 5855 Tardy, Long v., 1 Johns. Chanc. Rep., 202, Who may Sue 5302 Tarleton v. Hornby, 1 Younge & C, 172, Demurrers 5944 Tarleton v. Johnson, 25 Ala., 300, Decrees. . . , 6095 Tarr v. Glading, 1 Phila. , 370, Specific Performance 5731 Tarr v. Scott, 4 Brewster, 49, Specific Performance 5720, 5731 Tash V. Adams, 10 Gushing, 353, Bills of Peace , 5843 Tasker, Bristort;., 135 Pa. St., 110, Trusts., 5747 Tasker, Bristor v., 135 Pa. St., 110 ; 36 W. N., 115, Masters 6025 Tasker, Bristor v., 135 Pa. St., 114, Appeals 6168 Tatham, Wright v., 2 Sim., 459, Perpetuation 5540 Tax Cases, 93 U. S., 576, Bills of Peace 5848, 5846 Taylor v. Adams, 3 S. & E., 534, Specific Performance 5731 Taylor v. Bouchier, 3 Dick. , 504, Who may Sue 5316 Taylor v. Haylin, 2 Bro. C. C. , 310, Preparation 5888 Taylor, Keeler v., 53 Pa. St., 467, Injunctions 5666 Taylor v. Knights, 4 Del., 153, Costs 6110 Taylor v. Maris, 5 Rawle, 51, Marshalling Assets 5887 Taylor v. Miame Co., 6 Ohio, 176, Who may Sue 5311 Taylor, Waters v. , 2 Ves. & Beames. 299, Account 5399 Taylor v. Wrench, 9 Ves., 315, Amendments 5913 Taylor's Appeal, 98 Pa. St., 21, Injunctions 5647, 5648 Taylor's Appeal, 33 Leg. Int. , 348, Marshalling Assets 5837 Tea's Appeal, 23 Pa. St. , 223, Marshalling Assets 5833 Teed, Corbus v., 69 111., 205, Replications 5995 Telegraph Co., Middleton v., 44 Leg. Int., 366, Masters 6038 TABLE OF CASES. clxix Section 'Telegraph Co., Riley v., 47 Ind., 511, BiUs of Peace 5844 Telephone Co., Bank v., 150 Pa. St., 36, Accident 5426, 5448 Telephone Co., Puss i)., 3 Dist. Rep., 654, Costs 6114 Tel. Co., Williams v., 93 N. Y., 103, Who may Sue 5311 Teller, Burke v., 1 Dist. Rep., 03, Costs 6111 Temple v. McConkey, 1 Pitts., 307, Specific Performance 5721 Temple, North Carolina v., 134 U. S., 22, Who may be Sued 5326 Templer, Lousada v., 2 Russ., 565, Amendments 5904 Tennant, Harrison v., 21 Beavan, 483, Account 5399 Tennessee, R. R. Co. v., 101 U. S., 337, Who may be Sued 5326 Tenor v. Hutton, 1 Phila., 50, Costs ^ 6110 Teresy v. Gorey, MS., Accident 5414 Terry, Ford v. , 41 Leg. Int. , 174, Preparation 5372 Thacher v. Woddrof, 4 C. C, 388, Examiners 6013 Thayer v. Smith, 9 Met., 469, Quia Timet 5856 Thayer v. Wales, 9 Blatch. , 170, Injunctions 5651 Theatre, Brewer v., 104 Mass., 378, Who may Sue 5310 Thibault, Evans v., 2 Miles, 251, Marshalhng Assets 5836 Thieleus, White v., 106 Pa. St., 173, Masters 6035 Thistle V. Lippincott, 14 W. N., 139 Account 5392 Thomas v. BosweU, 37 Leg. Int. , 147, Who Must be Joined 5360 Thomas v. BosweU, 37 Leg. Int. , 147, Preparation 5373 Thomas v. BosweU, 37 Leg. Int. , 147, Demurrers 5947 Thomas, Colton v., 3 Brews., 308, Injunctions 5662 Thomas v. De Baum, 1 McCarter Chanc. Cases (N. J.), 37, Execution.. 6135 Thomas v. Ellmaker, 1 Pars., 98, Corporations 5527 Thomas v. Ellmaker, 1 Pars., 98, Injunctions 5703 Thomas v. EUmaker, 1 Pars., 98, Answers 5983, 5984 Thomas v. EUmaker, 1 Pars., 98, Decrees 6085, 6086 Thomas v. Kyles, 1 Jones Eq. (N. C), 303, Specific Performance 5731 Thomas v. Oakley, 18 Ves. Jr., 184, Accident 5453 Thomas, Prudential Assurance Co. v., L. R., 3 Chanc. Ap., 74, Inter- pleader 5866 Thomas, R. R. Co. v., 2 PhUa., 344, Corporations 5494 Thomas, R. R. Co. v., 7 Phila., 635, Injunctions 5647 Thomas, Roberts?;., 1 Del., 89, Injunctions 5676 Thomas' Appeal, 69 Pa. St., 120, MarshaUing Assets 5834 Thomas' Appeal, 76 Pa. St., 30, Appeals 6183 Thompson, Anspach v., 4 Am. Law Reg. (N. S.), 362, Examiners 6017 Clxx TABLE OF CASES. Section) Thompson, Bank v. , 144 Pa. St. , 393, Accident 5452- Thompson v. Carpenter, 4 Pa. St., 133, Specific Performance 5721 Thompson, Chambers v., 4 Brown Ch., 434, Demurrers 5944 Thompson v. Coal Co., 7 Phila., 617, Specific Performance 5720- Thompson, Cockburn v., 16 Ves., 326, Who Must be Joined 5341, 5360 Thompson, Cockburn v., 16 Ves., 325, Want of Parties 5960- Thompson, Crawford v., 142 Pa. St., 551, Trusts 5736 Thompson, Honnett v., 37 P. L. J. (N. S.), 103, Partition 5799 Thompson v. Hudson, L. R., 4 H. L. C, 27, Accident 5415 Thompson v. McCleary, 159 Pa. St., 189, Receivers 5614 Thompson v. Mendelsohn, 5 Fish., 187, Injunctions 5651 Thompson i;. Morrow, 5 S. &R., 289, Dower 5559- Thompson v. Noble, 3 Pitts. , 201, Preparation 5372 Thompson, School District v., 2 Woodward, 345, Amendments 5904 Thompson v. Sherrard, 35 Barb., 593 ; 22 How. Prac, 155 ; 13 Abbott's Prac, 427, Receivers 5583 Thompson's Appeal, 120 Pa. St. , 367, Preparation 5376 Thompson's Appeal, 11 W. N., 414, Masters 6038 Thompson's Appeal, 11 W. N., 414, Costs 6111 Thornton, Bowen v., 9 W. N., 575, Execution 6133 Thornton, Sykes v., 153 Pa. St., 94, Receivers 5608 Thrope v. Macauley, 5 Mad., 318, Amendments 5913 Thurlow V. Rightley, 19 Phila., 324, Discovery 5475 Tiernan v. Roland, 15 Pa. St., 429, Specific Performance 5721, 5722 Tileston, Sickles v., 4 Blatch., 109, Injunctions 5651 Timanus, Frisbee v. , 13 Fla. , 300, Receivers 558^ Tison V. Tison, 14 Ga., 167, Production 6004 Titus V. Cortelyou, 1 Barb., 444, Production of Documents 6008 Todd V. Pfoutz, 3 Yeates, 177, Specific Performance 5721 ToUes' Appeal, 23 W. N., 1, Masters 6027, 6034 Tolles' Appeal, 33 W. N., 1, Appeals 6183 Toilet V. Toilet, 2 P. Wms. Rep., 489, Accident 5415 Tombs' Appeal, 9 Pa. St. , 67, Marshalling Assets 5834 Tool, Keramerer f., 81 Pa. St., 473, Appeals 6164 Toomey v. Hughes, 25 W. N., 66, Amendments 5904 Toomey v. Hughes, 8 C. C, 304, Amendments 5908 Torr's Estate, 3 Rawle, 350, Marshalling Assets : 5834 Tospon V. Sipe, 116 Pa. St., 588, Dower 5552 Totten's Appeal, 40 Pa. St., 385, Appeals 6179i- TABLE OF CASES. clxxL Section, Tovey, Foley v., 54 Pa. St., 190, Trusts 5733 To war v. Barrington, Bright., 253, Specific Performance 5720 Towar v. Barrington, Bright., 253, Trusts 5733 Town V. Needham, 3 Paige (N. Y.), 546, Partition 5769 Townsend v. Lewis, 35 Pa. St., 125, Specific Performance 5731 Townsend, Moroney v., 5 Phila., 357, Specific Performance 5731 Townsend, Page v., 5 Sim., 395, Demurrers 5944 Townsend, Yow v. , 1 Dick. , 59, Amendments 5914 Township, Huddleston v., 7 Atl. Rep., 310, Injunctions 5676 Township, Sallade v. , 2 Pears. , 48, Injunctions 5700 Township, Sallade v., 3 Pears., 51, Decrees 6080 Township, Sallade v., 2 Pears., 51, Costs 6111 Traction Co. , RafiEerty v., 147 Pa. St. , 579, Preparation 5384 Traction Co., Rafferty v., 29 W. N., 543, Costs eilO' Trainor v. R. R. Co., 36 W. N., 441, Amendments 5914 Trammell, Shields v., 19 Ark., 51, Specific Performance 5731 Transit Co., Shaw ?;., 4 C. C, 363, Injunctions 5677 Transit Co.'s Appeal, 9 W. N., 225, Receivers 5582; Transportation Co., Bank v., 18 Vt., 131, Who may Sue 5311 Transportation Co. , Darling v. , 2 Kulp, 142, Receivers 5610 TrapnaU, Woodruflf v., 10 How., 190, Who may be Sued 5326- Travis' Appeal, 8 Atl. Rep., 601, Accident 5486 Trego, Kerr v., 47 Pa., St., 392, Injunctions 5699' Trexler v. Mennig, 2 W. N., 680 ; 33 Leg. Int., 331, Masters 6034 Tritt V. Crotzer, 13 Pa. St., 451, Trusts 5746 Trough's Estate, 75 Pa. St., 115, Trusts 5783- Troughton v. Getloy, 1 Dick., 382, Demurrers 5944 TruesdaJe, Suydam v. , 6 McLean C. C. , 459, Answers 5964 Truesdell's Appeal, 58 Pa. St., 148, Injunctions 5700 TruUinger v. Charles, 129 Pa. St., 389, Injunctions 5647 Trullinger v. Charles, 129 Pa. St., 389, Appeals 6164 TruUinger, Reeder v., 151 Pa. St., 287, Account 5408 Trullinger, Reeder v., 151 Pa. St., 387, Accident 5438, 5450- Trullinger, Reeder v., 151 Pa. St., 387, Decrees 6093 Trust Co. V. Coal Co., 37 P. L. J., 481, Answers 5969 Trust Co., Fuller v., 157 Pa. St., 646, Accident 5450- Trust Co. V. Harris, 3 Bosworth (N. Y.), 90, Who may Sue 5311 Trust Co. V. Iron Co., 139 Pa. St., 534, Trusts 573.3 Trust Co. V. Midland Co., 117 U. S., 434, Receivers 5602r Woodruff, Sargent Mfg. Co. v., 5 Bissell, 446, Injrmctions 5651 Woodruff V. Trapnall, 10 How., 190, Who may be Sued 5326^ Woods V. McMillan, 32 P. L. J. , 343, Prosecution 6061 Woods V. Rwy. Co., 99 Pa. St., 101, Decrees 6090- Woodward v. Brace, 139 Pa. St. , 316, Masters 603& Woodward v. City, 4 Kulp, 138, Appeals 6178 Woodward v. Seeley, 50 Amer. Dec, 445, BiUs of Peace 5840 Wood worth v. "Van Buskerk, 1 Johns. Chanc, 432, New Trial 5885 Woollam V. Hearn, 7 Ves., 211, Accident 5444 Woolley's Estate, 6 Pa. St., 351, Appeals 6179 Woolsey, Dodge v. , 18 How. , 831, Injunctions 5684 Worgan v. Ryder, 1 Ves. & Beames, 20, Dower 5560' Worrall, Fisher v., 5 W. & S., 478, Specific Performance 5721 Worrall's Appeal, 41 Pa. St., 544, Marshalling Assets 5S38' Worrall's Appeal, 110 Pa. St., 349, Masters 6034 Worth, Fackler v., 2 Beasley (N. J.), 395, Execution 6135. Worthen v. Badgett, 32 Ark., 496, Bills of Peace 5846 Wray v. Hazlett, 6 Phila., 155, Preparation 5363, 5884 Wray v. Hazlett, 1 Brewster, 295, Amendments 5907 Wrench, Taylor v., 9 Ves., ol.'j. Amendments 5912 Wright, Cheyney v., 7 Phila., 481, Injunctions 5647 Wright V. Craighead, 4 W. N., 51, Specific Performance 5723 Wright, Fuchsu, 6 W. N., 157, Who may Sue 5303 Wright V. Ins. Co., 110 Pa. St., 29, Account 5396 Wright, Lawson v., 1 Cox's Chanc. Cases, 276, Who Must be Joined gggg Wright, Pusey v., 81 Pa. St., 387, Answers 5968, 5970 Wright, Pusey u., 81 Pa. St., 387, Examiners 6017 TABLE 01>' CASES. clxxxiii "Wright, Shaw v., 3 Ves. Jr., 23, Execution 0140 Wright V. Tatham, 2 Sim., 459, Perpetuation 5540 Wright V. Young, 6 Wise, 127, Specific Performance 5720 Wunderlich, Alexander v., 118 Pa. St., 610, Specific Performance 5738 Wych V. E. I. Co., 8 P. Wms., 809, Trusts 5749 Wych V. Meal, 8 P. Wms., 310, Who may be Sued 5328 Wynkoop v. Wynkoop, 43 Pa. St., 393, Injunctions 5696 Wyomissing Co., Patterson v., 40 Pa. St., 117, Corporations 5501 Y. Yard, Ferguson v., 164 Pa. St., 586, Trusts 5754 Yard, Ferguson v., 164 Pa. St., 586, Demurrers 5944 Yard's Appeal, 13 Atl., 359, Costs 6114 Yates, Richmond v., 3 Baxt., 204, Trusts 5748 Yeager, Wallace v., 4Phila., 251, Receivers 5596 Yeager v. Wallace, 44 Pa. St., 294, Receivers 5611 Yeager s Appeal, 34 Pa. St., 173, Review 5875, 5877 Yerke's Appeal, 14 W. N., 510, Examiners 6023 Yoder v. Yoder, 18 Pa. St., 471, Trusts 5743 Young, Barkworth v., 4 Drew., 1, Specific Performance 5736 Young, Brady v., 4 Phila., 137, Cross-bills .5891, 5898 Young V. Burton, 1 McMullan's Eq. (S. C), 354, Specific Perform ance 5731 Young, Comm. v., 11 Phila., 606, Receivers 5613 Young, Comm. v., 33 Leg. Int., 160 ; 11 Phila., 606, Execution 6136 Young V. Daniels, 3 Iowa, 136, Specific Performance 5731 Young, Dreydroppel v., 37 Leg. Int., 397, Injunctions 5639 Young I'. Elkins, 38 Leg. Int., 204, Injunctions 5677 Young, Lauman v., 31 Pa. St., 3Q6, Account 5396 Young V. Oil Co., 80 Leg. Int., 13, Preparation 5373 Young V. Salber, 2 W. N. , 394, Injunctions 5638 Young, Wright v., 6 Wise, 127, Specific Performance 5730 Youngman v. R. R. Co., 65 Pa. St., 278, Trusts 5738 Young's Appeal, 99 Pa. St., 83, Review 5874 Young's Estate, 33 P. L. J. (O. S.), 403, Dower 5558 Yovatt V. Winyard, 1 Jao. & Walker, 394, Injunctions 5667 Yow V. Townsend, 1 Dick., 59, Amendments 5914 Yungfleish's Appeal, 1 Walker, 135, Appeals 6164 Clxxxiv TABLE OF CASES. Seotioa Z. Zentmyer v. Mittower, 5 Pa. St., 403, Accident 5449 Ziegler v. Houtz, 1 W. & S., 533, Specific Performance 5731 Ziegler, Kaub v., 11 W. N., 433, Masters 6036 Ziegler's Appeal, 158 Pa. St. 263 ; 31 W. N., 553, Execution 6138 Zimmerman v, Mendenhall, 3 MUes, 403, Who may Sue 5305 , Zinsser v. Cooledge, 17 Fed. Eep., 538, Injunctions 5656 TABLE OF ACTS. 1684 Section' History, 5038 1690 History, 5039 1701 History, 6030 1710 History, 603t 1713 Mar. 37, § 1, 1 Sm., 76. Dower, 6564 1715 History, 5083 1719 History, 6083 1720 History, 5034 1785 Mar. 26, § 3, 3 Sm., 300. Dower, 5564 J 792 Mar. 31. Specific Performance, 5733 clxxxv clxxxvi 1798 Feb. 27. Feb. 27. 1799 April 11, § 2. TABLE OF ACTS. Bills of Discovery, Production of Documents, Partition, Section 5463 5999 5810 1809 Mar. 11, § 6, 5 Sm., 17. Demurrers, 5959 1828 AprQ 14, § 1, 10 Sm., 213. Discovery, 5465 1829 AprU 23, § 2, 10 Sm., 455. Costs, 61J0 1832 1834 1836 Mar. 39, P. L. , 307. Execution, 6138 Mar. 29, P. L. , 313. Appeals , 6146 Feb. 34. Specific Performance, 5722 Feb. 34, § 36, P.L., 37. Revivor, 5920 AprU 14, § 71, P. L., 354. Preparation, 5361 June 18, § 43, Receivers, 5615 June 13, P. L., 593. Lunatics, 5883 June 14. Production of Documents, 6000 June 14, § 13, P. L., 631. Injunctions, 5618 June 14, § 31, P. L., 633. Receivers, 5579 June 16, P.L., 789. Discovery, 5464 June 16, P. L., 789. Interpleader, 5860 June 16, § 9, P. L., 763. Legislation, 5046 June 16, § 10, P. L., , 763. Legislation, 5046 June 16, § 11. Legislation, 5047 June 16, § 11, P. L., 787. Appeals, 6184 June 16, § 12. Legislation, 5047 June 16, § 13, P. L., 789. Legislation, 5040, 5048, 5065 June 16, § 13, P. L., , 789. Rules, 5292 TABLE OP ACTS. clxxxvii 1840 1842 1844 Section June 16, § 13, P. L., , 789. Account, 5391 June 16, § 13, P. L.^ , 789. Discovery, 5464 June 16, § 13, P. L., , 789. Corporations, 5483 June 16, § 13, P. L., , 789. Perpetuation, 5533 Jime 16, § 13, P. L., 789. Injunctions, 5617 June 16, § IS, P. L., , 789. Specific Performance, 5718 June 16, § 13, P. L., , 789. Trusts, 5731 June 16, § 13, P. L., , 789. Lunatics, 5883 June 16, § 13, P. L., , 789. Evidence Outside the State, 5884 June 16, § 13, P. L., , 789. Prosecution, 6043 June 16, § 14. Legislation, 5049 June 16, § 15. Legislation, 5049 June 16, § 16. Legislation, 5049 June 16, § 17. Legislation, 5049 June 16, § 18. Legislation, 5050 June 13, § 39, P. L., , 671. Legislation, 5040 June 13, § 39, P. L., , 671. Account, 5391 Oct. 13. Production of Documents, 6000 Oct. 13, P. L., 3. Execution, 6188 Oct. 13, § 1, P. L. , 1. Revievr, 5872, 5878 Oct. 13, § 11, P. L., , 4. Receivers, 5573 Oct. 13, § 19, P.L., 1841, p. 7. Legislation, 5041 Oct. 13, §19, P.L., 1841, p. 7. Account, 5391, 5403 July 13. Costs, 6130 July 13. Execution, 6183 July 13, § 33, P. L., , 343. Discovery, 5467 July 13, § 33, P. L., 843. Answers, 5968 July 13, § 33, P. L., 344. Production, 6007 July 36, § 9. Rules, 5088 July 36, § 9, P. L., , 433. Costs, 6110 April 6. Rules, 5094 April 6. Prosecution, 6043 April 6, § 1, P. L., 313. Legislation, 5065 Clxxxviii TABLE OP ACTS. Section April 6, § 1, P. L., 313. Who may be Sued, 5826 April 6, § 1, P. L., 318. Perpetuation, 5534 April 34, § 3, P. L., 512. Legislation, 5050 May 6, § 1, P. L., 564. Legislation, 5069 May 6, § 1, P. L., 564. Injunctions, 5637, 5643 1845 Mar. 17, § 1, P.L., 158. Legislation, 5071-5076 Mar. 17, P. L., 158. Appeals, 6146 Mar. 17, § 3, P. L., 160. Legislation, 5051 Mar. 17, § 3, P. L., 160. Dower, 5554 Mar. 17, § 3, P. L., 160. Partition, 5770 April 16, P.L., 543. Appeals, 6146 AprU 16, § 3, P. L., 543. Legislation, 5043 1846 April 8, § 1, P. L., 273. Legislation, 5068 April 8, § 1. Injunctions, 5639 April 31, P.L., , 433. Appeals, 6146 April 31, § 3, P. L., 438. Legislation, 5077 1848 April 10, § 4, P. L., 449. Legislation, 5043 April 10, § 4, P. L., 449. Discovery, 5464 1849 Jan. 34, § 16, P. L., , 683. Examiners, 6011 Jan. 34, § 16, P. L.; , 682. Masters, 6025 Jan. 34, P. L. , 677. Execution, 6138 1850 April 16, § 10, P. L., , 483. Corporations, 5499 AprU 16, § 33, P. L., , 490. Corporations, 5494 April 16, § 33, P. L., , 490. Corporations, 5494 April 35, § 24, P. L. , 573. Legislation, 5060 April 35, § 85, P. L. , 573. Legislation, 5060 April 35, § 35, P. L. , 573. Account, 5393 April 35, § 26, P. L. , 573. Legislation, 5044 April 35, § 26, P. L. , 573. Perpetuation, 5533 TABLE OF ACTS. clxxxix 1851 April 3, § 14, P. L., 871. AprU 8, § 5, P. L., 354. 1852 April 8, § 1, P. L., 292. April 8, § ], P. L., 293. 1853 Mar. 17, § 1, P. L., 208. AprU 18, § 1, P. L., 503. AprU 18, § 3, P. L., 508. 1854 Feb. 20, § 1, P. L., 89. Mar. 27, § 3, P. L., 214. Mar. 27, § 2, P. L., 214. AprU 6, § 1, P. L., 301. AprU 24, § 1, P. L., 485. 1855 AprU 26, § 10, P. L., 331. AprU 36, § 14, P. L., 331. AprU 36, § 14, P. L., 331. May 7, § 10, P. L., 466. May 8, § 3, P. L., 533. 1856 AprU 32. AprU 32, § 1, P. L., 503. April 33, § 3, P. L., 502. April 22, § 6, P. L., 532. AprU 22, § 9, P. L., 534. Nov. 6, § 1, P. L., 797. Nov. 6, § 1, P. L., 797. 1857 Feb. 14, P. L., 39. Feb. 14, § P. L., 39. Section Legislation, 5083 Legislation, 5064 Legislation, 5039 Ruler, 5088 Legislation, 5069 Injunctions, 5627, 5643 Partition, 5810 Partition, 5810 Dower, 5554 Legislation, 5065 Who may be Sued, 5334 CosbD, 6110 Legislation, 5064 Legislation, 5061 Legislation, 5061 Discovery, 5466 Injunctions, 5619 Marshalling Assets, 5835 Trusts, 5737 Legislation, 5060 Account, 5393 Specific Performance, 5725 Marshalling Assets, 5836 Legislation, 5069 Injunctions, 5637, 5643 Appeals, 6146 Legislation, 5045 CXC TABLE OF ACTS. Sectioa Feb. 14, § 1, P. L. , 39. Account, 5391, 540a Feb. 14, § 1, P. L.: , 39. ' Discovery, 5464 Feb. 14, S 1, p. L., 39. Corporations, 5483 Feb. 14, § 1, P. L., , 39. Injunctions, 5617 Feb. 14, § 1, P. L., 39. Specific Performance, 5718 Feb. 14, § 1, P. L., 39. Partition, 5770 Feb. 14, § 1, P. L., , 39. Interpleader, 5860 May 30. Injunctions, 5641, 5643 1858 April 15, § 1, P. L., 267. Legislation, 5059 April 15, § 1, P. L., 267. Partition, 5772 1859 Mar. 29, § 1, P. L., 289. Legislation, 5078 Mar. 29, § 1, P. L., 289. Decrees, 6096 Mar. 29, § 2, P. L., 389. Legislation, 5078 Mar. 29, § 3, P. L., 289. Decrees, 6096 April 5, § 1, P. L., 359. Legislation, 5059 April 5, § 1, P. L., 359. Partition, 5773 April 5, § 2, P. L., 359. Legislation, 5059 April 5, § 3, P. L., 359. Partition, 5772 April 6. Rules, 5095, 5096 April 6. P. L., 387. Prosecution, 6043 April 6, § 1, P. L., 387. Legislation, 5065 April 6, § 1, Who may Sue, 5309 April 6, § 1, P. L., 387. Who may be Sued, 5334 April 6, §■ 2, P. L., 387. Legislation, 5065 April 6, § 3, P. L., 387. Legislation, 5065 1860 Mar. 29, § 1, P. L., 343. Examiners, 6011 Mar. 29, § 1, P. L., 343. Masters, 6035 Mar. 31. Receivers, 5573 Mar. 31, § 123, P. L. ,411. Discovery, 5468 Mar. 31, § 133, P. L. ,411. Answers, 5968 Mar. 31, § 133, P. L. ,411. Production, 6007 1862 April 5. § 1, P. L., 368. Legislation, 5065 April 5, § 1, P. L., 368. Who may be Sued, 5334 TABLE OF ACTS. CXCl 1863 AprU 14, § 1, P. L., 374. April 33, P. L., 519. April 33, P. L., 519. July 18. 1864 April 37, § 1, P. L., 641. May 4, § 1, P. L., 775. May 4, § 1, P. L., 775. May 4, § 3, P. L., 775. May 4, § 3, P. L., 775. 1865 Mar. 14, § 1, P. L., 345. Mar. 37, § 1, P. L., 38. 1866 Feb. 14, § 1, P. L., 38. Feb. 14, § 1, P. L., 38. Feb. 14, § 1, P. L., 38. 1867 April 10, § 1, P. L., 1138. April 10, § 3, P. L., 1133. April 10, § 3, P. L., 1133. April 13, § 1, P. L., 71. April 13, § 3, P. L., 71. April 13, § 3, P. L., 71. 1869 April 30, § 1, P. L., 77. April 30, § 3, P. L., 77. 1870 April 1, § 1, P. L., 45. 1871 Jan. 30, § 1, P. L., 13. Mar. 33, § 1, P. L., 231. Legislation, Legislation, Partition, Preparation, Section 5063 5051 6770 5373 Partition, Legislation, Costs, Legislation, Amendments, 5833, 5823 5080 6110 5079 5899 Dower, Production, 5555, 5558 6006 Legislation, Injunctions, Appeals, 5070 571.^ 6146 Receivers, 5577 Receivers, 5577 Receivers, 5577 Legislation, Legislation, Corporations, 5084 5084 5500 Dower, 6556 Dower, 5558 Corporations, 5486, 5537 Interpleader, Corporations, 5868 5487 CXCii TABLE OF ACTS. Section June 15, § 1, P. L., , 387. Discovery, 5475 June 15, § 1, P. L., 387. Execution, 6141 June 19, § 1, P. L., 1361. Legislation, 5066 June 19, § 1, P. L., 1361. Corporations, 5484, 5491 June 19, § 1, P. L., 1361. InJTUictions, 5631 June 19, § 2, P. L., 1361. Legislation, 5067 June 19, § 3, P. L., 1361. Corporations, 5485 June 19, § 3, P. L., 1361. Injunctions, 5633 1872 AprU 4, § 3. Receivers, 5578 June 1, (U.S. ) Who may be Sued, 5334 June 1, (U.S. ) Rules, 5377, 5378 1873 April 4, § 5, P. L., 20. Receivers, 5574 1874 April 18. Preparation, 5373 April 29, § 8, P. L., 78. Corporations, 5517 April 29, § 9, P. L., 78. Corporations, 5517 May 11, § 1, P. L., 135. Corporations, 5494 May 25, § 1, P. L., 277. Appeals, 6183, 6184 1875 Mar. 3, § 5, (U. S. ) Appeals, 623? 1876 April 35, § 1, P. L., 47. Corporations, 55i: May 1, § 49, P. L., 66. Receivers, 557^ May l-§ 50, P. L., 66. Receivers, 5574 May 1, § 51, P.L., 66. Receivers, 5574 May 5. § 1. P. L., 133. Legislation, 5062 May 5, § 1, P. L.. 133. Corporations, 5533 May 5, § 8, P. L., 133. Legislation, 5063 May 5, § 3, P. L., 133. Legislation, 5063 May 8, P. L., 134. Legislation, 5051 May 8, P. L., 134. Partition, 5770 May 13, § 37, P. L.. 169. Receivers, 5576 May 13, § 28, P. L., , 169. Receivei-s, 5576 May 26, § 1, P. L., 311. Legislation, 5061 TABLE OF ACTS. CXClll 1877 Mai-. 23, § 1, P. L., 32. Mar. 23, § 1, P. L., 33. Mar. 33, § 3, P. L., 33. AprU 4, P. L., 53. 1878 May 18, § 1, P. L., 70. May 23, § 1, P. L., 95. May 35, § 1, P. L., 149. May 35, § 2, P. L., 149. 1879 Mar. Jiine 28, § 7, June 13, June 13, § June 12, § June 12, § June 12, § 1, P. L., 14. P. L., 177. 1, P. L., 177. 1, P. L., 177. 3, P. L., 177. 3, P. L., 177. 1881 May 21, § 1, P. L., 34. June 8, P. L., 84. June 8, § 1, P. L., 80. June 10, § 1, P. L., 107. 1883 June 26, § 1, P. L., 133. June 36, § 1, P. L., 133. Legislation, Corporations, Legislation, Injunctions, Receivers, Injunctions, Legislation, Legislation, Dower, Receivers, Appeals, Legislation, Injunctions, Legislation, Injunctions, Bills of Peace, Accident, Appeals, Interpleader, Legislation, Corporations, Section 5062 5523 5062 5648 5576. 5623 5081 5081 5552 5614 6146 507O 6714 5070 5715 5849 5450 6148 5862 5061 5527 1885 May June June June June June July July 13 31, 5, 5. 5. 33, 34, 7, § 7, § P. L., P. L., 33. 78. P. L., 137. P. L., 151. 1, P. L., 357. 1, P. L., 357. Appeals, Legislation, Decrees, Execution, Receivers, Legislation, Legislation. Dower. 6146, 6148 5063 6096 6133 5575 5062 5051, 5053 5554 «Xciv TABLE OF ACTS. Seotion July 7. § 1, P. L., 357. Partition, 5770 July 7, § 2, P. L., 357. Legislation, 5053 July 7. § 2, P. K, 357. Paititiott, 5793, , 5797 July 7, § 3, P. L., 257. Legislation, 5054 July 7, § 3, P. L., 257. Partition, 5806 July 7, § 4, P. L., 257. Legislation, 5055 July 7, § 4, P. L., 357. Partition, 5807 July 7. § 5, P. L., 357. Legislation, 5056 July 7, § 5, P. L., 357. Partition, 5810 July 7, § 6, P. L., 357. Legislation, 5057 July 7, § 6, P. L,., 357. Partition, 5813 July 7, § 7, P. L., 357. Legislation, * 5058 1887 May 33, § 1, P. L., 163. Legislation, 5085 May 23, § 1, P. L., 163. Prosecution, 6061 May 23, § 2, P. L., 163. Legislation, 5085 May 23, § 2, P. L., 163. Prosecution, 6064 1888 Aug. 13, Chap. 866, §2, (U.S.) Receivers, 5597 Aug. 13, Chap. 866, § 3, (U. S.) Receivers, 5618 1889 Mar. 8, § 1, P. L., 10. BiUs of Peace, 5849 May 3, P. L., 78. Costs, 6120 May 3, Execution, 6133 May 7, § 1, P. L., 102. Corporations, 5517 May 7, § 2, P. L., 102. Corporations, 5517 May 9, P. L., 158. Appeals, 6146, 6156 1891 Mar. 3, § 4, (U. S.) Appeals, 6203, 6204, 6230 Mar. 3, § 5, (U. 8.) Appeals, 6305, 6231 Mar. 3, § 6, (U. S.) Appeals, 6306, 6231, 6232 Mar. 3, § 7, (U. S.) Appeals, 6207 Mar. 3, §: 10, (U. S.) Appeals, 6208 Mar. 3, § : 11, (U.S.) Appeals, 6209, 6310 May 30, p. L., 101. Injunctions, 5648 June 2, P. L., 304. Injunctions, 6620 TABLE OF ACTS CXCV 1892 1893 1895 Seetiou July 20, Ghap.209,(U.S.) Who may Sue, 5333 6 April 36, P. L., 2?. Receivers, 5578 May 4, P. L., • 29. Who may Sue, 5309 May 4, P. L., 39. Corporations, 5488 June S, P. L., , 273i Receivers, 5603 June 3, P. L., , 373; Trusts, 6733 June 8, P. L.. , 360. Injunctions, 5619 June 8, § 3, P. L., , 345.. Who may be Sued 5389 June 8, § 15, P. L., , 360. Injunctions, 6691 Jtne 10, § 3, P. L., , 415. Quia Timet, B859 5 May 21. Injunctions, 5661 May 33. Partition, 6810 June 7, § 9. Injunctions, 5691 June 7, § 43, Injunctions, 5619 June 24. Partition, 5881 June 24. Costs, 6118 June 24. Appeals, 6147 June 34, § 1, Appeals, 6187 June 34, § 3. Appeals, 6187 June 24, § 3. Appeals, 6187 June 24, § 4. Appeals, 6187 June 24, § 5. Decrees, 6096 June 24, § 5. Appeals, 6188 June 34, § 6. Appeals, 6189 June 24, § 7. Appeals, 6190 June 24, § 8. Decrees, 6096 June 24, § 8. Appeate, 6198, 6193, 6194, 6195 June 34, § 9. Appeals, 6196, 6197 June 24, § 10. Appeals, 6198 June 24, § 11. Appeals, 6199 June 24, § 13. Appeals, 6200 June 24, § 13. Appeals, 6201 June 34, § 14. Appeals, 6203 June 34, § 15. Appeals, 6302 June 35, § 1, P. L., 879. Evidence Outside the State, 5884 CXCVl TABLE OP ACTS. Section June 25, § 3, P. L., 379. Evidence Outside the State, 5884 June 35, § 3, P. L., 379. Evidence Outside the State, 5884 June 35, § 1, P. L., 300. Lunatics, 5883 June 25, § 3, P. L., 300. Lunatics, 5883 June 35, § 3, P. L., 300. Lunatics, 5883 June 35, § 4, P. L., 300. Lunatics, 5883 June 35, § 5, P. L., 300. Lunatics, 5882 June 25, § 6, P. L., 300. Lunatics, 5883 June 25, § 7, P. L., 300. Lunatics, 5882 June 35, § 8, P. L., 300. Lunatics, 5882 June 25, § 9, P. L., 300. Lunatics, 6882 CHAPTER I. HISTORY OF EQUITY IN PENNSYLVANIA. § 5025. Jealousy against Chancery. It is well known that in Pennsylvania there was for many years a jealousy against a court of chancery. The following sketch of the growth of Equity Powers in this State is condensed from Hazzard's Annals, from the Reports, and from two able Essays written on this subject by Mr. Laussat and Mr. William Henry Rawle. § 5026. Penn's Charter. March 4, 1681, Charles the Second granted his charter to William Penn, of the Province of Pennsylvania. The 6th section declared that the proprietor should have power, inter alia : "to do all and every other thing and things which unto the complete establishment of justice unto courts and tribunals, forms of judicature and manner of proceed- ings do belong, although in these presents express luention be not made thereof ; and by judges by them delegated, to award process, hold pleas, and determine in all the said courts and tribunals, all actions, suits and causes whatso- ever, as well criminal as civil — personal, real and mixt." Before this, in 1676, Sir Edmund Andross granted, in New York, an injunction to stay execution on a judgment in the Court of New Castle, upon security being given, " and all proceedings, writings and proofs to be transmitted to New York for a final determination in Equity." (Hazzard's Annals of Pennsylvania, 424.) g 5027. The Great Law. The " Great Law " provided further, that in every county 1 1 2 HISTORY OF EQUITY IN PENNSYLVANIA. there should be one court erected, to which the inhabitants thereof might every month repair for justice ; from this lay an appeal to the Provincial Court, composed of not less than five judges, who should hold quarterly sessions ; and from this court an appeal lay to the Provincial Council, which was the "last jurisdiction." (Dec. 10, 1682.) In Penn's letter to " the Free Society of Traders," he speaks of the Indian as not "disquieted with bills of lading and exchange, nor perplexed by Chancery suits ; " he adds that, " to prevent lawsuits, there are three peacemakers, chosen by every county court, in the nature of common arbitrators, to hear and end differences between man and § 5028. Bills of 1684. In 1681, two bills were passed. No. 156 provided that monthly and quarterly sessions be held in every county by the respective justices, and that each quarter sessions be as well a court of equity as law, concerning any judgment given, in cases by law capable of trial in the respective county sessions and courts. No. 158 established a provin- cial court, consisting of five judges, who should try causes as well criminal as civil, both in law and equity, not deter- minable by the respective county courts. The judges of this court were commissioned by Penn on the 4th of August, 1684, a few days before he sailed for England. § 5029. Act of 1690. In 1690, an act was passed, conferring civil and criminal jurisdiction on the proper county courts, to be held quarterly, "which county courts shall he courts of equity, etc." § 5030. Act of 1701. In ITOl, another act was passed, providing that the judges of the Common Pleas should have full power to HISTORY OF EQUITY IN PENNSYLVANIA. 8 hear and decree all such matters and causes of equity as should come before them. An appeal in equity lay to the Supreme Court. § 5031. Act of 1710. Governor Evans, who is described as very unpopular, was succeeded in 1708 by Governor Gookin, who has left a better record. Under his administration, in 1710, another " Act for establishing courts of judicature " was passed. Its equity powers were not vested in the governor. A court of equity was to be held by the Common Pleas judges four times a year in every county, ' ' observing, as near as may be, the rules and practice of the High Court of Chancery in Great Britain." An appeal lay from the decrees of these courts to the Supreme Court, which was constituted, for this purpose, a court of equity in every county of the province. § 5032. Act of 1715. Later, in 171.5, " a supreme or provincial court of law and equity was established, which had, in general terms, authority to hold pleas in equity." § 5033. Act of 1719. In 1717, William Keith became governor. Penn died in 1718, and in 1719, the Act of 1715 was repealed. § 5034. Resolution of May, 1720. In May, 1720, a resolution was passed by the House that, "for the present the governor be desired to open and hold a court of equity for the province, with the assistance of such of his council as he shall think fit, except such as have heard the cause in any inferior court." "I think it not an ignorant prejudice," said a late chief justice, " but high political wisdom, which caused our an- cestors to refuse a court of chancery any place among their judicial institutions. The men who founded this Common- 4 HISTORY OF EQUITY IN PENNSYLVANIA. wealth, who built up her reputation, achieved her liberties and settled her laws, knew very well the amount of good and evil that such a' court had done elsewhere, and, upon sound and deliberate judgment, they repudiated it as far as they could. The administration of law, blended and mixed with equity principles, was a happy conception. It was no bungling substitute, but a most admirable improve- ment of both legal and chancery practice. " In the early case, in 1768, of Swift v. Hawkins, 1 Dallas, 17, the plaintiff opposed the introduction of evidence to show want of consideration of a bond. Chief Justice Allen remarked that there being no court of chancery in our province, it was necessary, to prevent a failure of justice, to admit the defense, and he added that he had known this to be the constant practice of the courts of the province for thirty-nine years past. § 5035. Constitution of 1776. The Constitution of 1776 gave to Pennsylvania courts the powers of a court of chancery so far as related to the perpetuation of testimony, the obtaining of evidence from places not within the State, the care of persons and estates of those non compotes mentis, "and such other powers as may be found necessary by future general assemblies, not inconsistent with the Constitution." § 5036. Constitution of 1790, In framing the Constitution of 1790, the question of chancery powers and of a separate court of chancery arose. It resulted in the adoption of this clause : " The Legis- lature shall vest in the said courts such other powers to grant relief in equity as shall be found necessary, and may, from time to time, enlarge or diminish those powers, or vest them in other courts, as they shall judge proper for the administration of justice." This power to establish a court of chancery was never exercised. HISTORY OF EQUITY IX PENNSYLVANIA. 5 g 5037. Grant of Chancery Powers. In addition to the powers above-mentioned the following were subsequently conferred : The control, removal and discharge of trustees, and the appointment of trustees and settlement of their ac- counts ; The supervision and control of all corporations, other than those of a municipal character, and unincorporated societies or associations and partnerships ; The care of trust- moneys and property, and other moneys and property made liable to the control of the said courts. It was believed that the union of a court of chancery with existing courts of law — as was the case with the Court of Exchequer in England, and was and is the case in the Circuit Court of the United States — was not advisable. The common-law courts continued to administer equi- table principles through the medium of common-law forms as theretofore, hut luith the addition of chancery forms and materials in the specified cases. To the Supreme Court when sitting in banc in Phila- delphia, and to the Court of Common Pleas of that county, jurisdiction was given of a court of chancery so far as related to — 1. The supervision and control of partnerships, and corporations other than municipal corporations ; 2. The care of trust-moneys and property, and other moneys and property made liable to the control of the said courts ; 3. The discovery of facts material to a just determina- tion of issues and other questions arising or depending in the said courts ; 4. The determination of rights to property or money claimed by two or more persons in the hands or possession of a person claiming no right of property therein ; 5. The prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals .; and 6 HISTORY OP EQUITY IN PENNSYLVANIA. 6. The affording specific relief where a recovery in damages would be an inadequate remedy. In the spring of 1840, jurisdiction was given to the Supreme Court, sitting in Philadelphia County, and to the Court of Common Pleas, in Philadelphia, in all cases over which courts of chancery entertained jurisdiction on the grounds of fraud, accident, mistake or account, and in a later statute it was added, ' ' whether such fraud, accident, mistake or account be actual or constructive." In the same year 1840, it was enacted that the Supreme Court, the several district courts and courts of common pleas should have all the powers and jurisdiction of courts of chancery in settling partnership accounts, and such other accounts and claims as by the common law and usages of the court had heretofore been settled by the action of account-render, and it should be in the power of the party to proceed either by bill in chancery or at common law. In 1844, the District Court of Allegheny County received all the chancery powers that had theretofore been conferred upon any other court of the Commonwealth. In the next year, an important act was passed, of which the last section gave equitable jurisdiction in all cases of dower and partition in Philadelphia County. In 1848, the same jurisdiction and power were given to the courts in Philadelphia County as to the discovery of facts as were possessed by courts of chancery. In 185T, the Legislature gave to the Courts of Common Pleas of the several counties of the Commonwealth, in addition to the powers and jurisdiction theretofore pos- sessed and exercised, the same chancery powers and juris- diction then vested in the courts of Philadelphia County, with provisions for an appeal to the Supreme Court. In England, the Act of 15 and 16 Victoria, c. 86, and the subsequent orders of Tth of August, 1852, abohshed the writ of subpoena— provided that the bill should contain a concise narrative of the facts, divided into paragraphs of distinct allegations, and should pray specifically the relief sought. No interrogations were allowed to be contained in the bill, but were to be filed separately. Provision was HISTORY OB" EQUITY IN PENKSYLVANIA. i also made for simplicity in the answer, which was to be in the first person, and, like the bill, divided into distinct statements. The practice of excepting to bills for impertinence was abolished, provision was made for the oral examination of witnesses, and many other alterations in practice and plead- ing were introduced. Since 1857, many acts have been passed in Pennsylvania, which, with all the preceding legislation, will be found in the chapter devoted to that subject. Rules of court regulating the practice have been pro- mulgated from time to time. These will be found in their proper place. CHAPTER II. LEGISLATION AS TO EQUITY JURISDICTION. g 5038. The Statutory Jurisdiction of the Court of Chancery in England is of interest to the student. Its practical importance is not often felt here. It has been said that English chancery practice ' ' is founded partly upon immemorial customs, partly upon decisions, general orders, regula- tions of the judges and registrars, and partly upon acts of Parliament." These may be summarized, very imperfectly, as the Statute 43 Eliz., c. 4 (as to charitable uses), which was supplied when it became obsolete by Sir Samuel Eomilly's Act (52 Geo. III., c. 101) ; the Arbitration Act, 9 and 10 Will. III., c. 15 ; the Act regulating custody of infants, 2 and 3 Vict., c. 5i (followed by Act 3 and 4 Vict., c. 90) ; the Real Estate Title Act, 25 and 26 Vict., c. 67. Many other acts as to decrees, jurisdiction, process, judg- ments, etc., might be referred to, but they are foreign to our present purpose. § 5039. Pennsylvania Legislation as to Equity. The Constitution, Art. V., § 3, confers a limited juris- diction on the Supreme Court in these words : ' ' The jurisdiction of the Supreme Court shall extend over the State, and the judges thereof shall, by virtue of their offices, be justices of oyer and terminer and general jail delivery in the several counties ; they shall have original jurisdiction in cases of injunction, where a corporation is a party defendant, of habeas corjjus, of mandamus to courts of inferior jurisdiction, and of quo warranto as to all officers of the Commonwealth whose jurisdiction extends LEGISLATION AS TO EQUITY JXJIilSDICTION. 9 over the State, but shall not exercise any other original jurisdiction ; they shall have appellate jurisdiction, by appeal, certiorari or writ of error, in all cases, as is now or may hereafter be provided by law." The Act of April 8, 1S52, § 1 (P. L., 292), regulates the exercise of this jurisdiction : "The said court, when in session in any district, shall exercise original jurisdiction in the cases enumerated * * * throughout the State ; and if not decided before the close of its session in said district, shall cause the same, with all proceedings thereon, to be certified to and filed for action with the prothonotary of the Supreme Court, in the district within which said court shall be next in session, and so to be certified from district to district until finally decided upon. " § 5040. General Grants of Jurisdiction. The * * * several courts of common jileas shall have the jurisdiction and powers of a court of chancer)', so far as relates to : I. The perpetuation of testimony. II. The obtaining of evidence from places not within the State. III. The care of the persons and estates of those wlio are non compos mentis. IV. The control, removal and discharge of trustees, and the appoint- ment of trustees, and the settlement of their accounts. V. The supervision and control of all corporations other than those of a municipal character, and unincorporated societies or associa- tions and partnerships. VI. The care of trust-moneys and property, and other moneys and property made liable to the control of the said courts. And in such other cases as the said courts have heretofore possessed such jurisdiction and powers, under the Constitution and Laws of this Commonwealth. (Act of June 16, 1836, § 13, P. L., 789.) The •■ * * Court of Common Pleas for the said City and County (of Philadelphia) shall, besides the powers and jurisdiction aforesaid, have the power and jurisdiction of courts of chancery, so far as relates to : I. The supervision and control of partnerships and corporations other than municipal corporations. II. The care of trust-moneys and property, and other moneys and property made liable to the control of the said courts. III. The discovery of facts material to a just determination of issues, and other questions arising or depending in the said courts. IV. The determination of rights to property or money claimed by two or more persons in the hands or possession of a person claiming no right of property therein. 10 LEGISLATION AS TO EQUITY JURISDICTION. V. The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the com- munity, or the rights of individuals. VI. The affording specific relief, when a recovery in damages would be an inadequate remedy. (Act of June 16, 1836, § 13, P. L. , 789.) The equity jurisdiction * * * of the Court of Common Pleas for said County (of Philadelphia) shall be extended to all cases arising in said city and county, over which courts of chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account. (Act of June 13, 1840, §39, P. L., 671.) § 5041. Partnership and Other Accounts. The * * * several * * * courts of common pleas, within this Com- monwealth, shall have all the powers and jurisdiction of courts of chancery in settling partnership accounts, and such other accounts and claims as, by the common law and usages of tliis Commonwealth, have heretofore been settled by the action of account-render ; and it shall be in the power of th& party desirous to commence such action to proceed either by bill in chan- cery or at common law. But no hill in chancery shall be entertained, unless the counsel filing the same shall certify that, in his opinion, the case is of such a nature that no adequate remedy can be obtained at law, or that the remedy at law will be attended with great additional trouble, inconvenience or delay. (Act of Oct. 13, 1840, § 19, P. L., 7.) § 504a. Fraud, Accident, Mistake, Account. Section 39 of the act entitled " An Act regulating election districts, and for other purposes,'' shall be construed to give jurisdiction to the Court of Common Pleas for the County of Philadelphia, * * * in all cases wher& chancery entertains jurisdiction under either of the heads of fraud, acci- dent, rriistake and account, whether such fraud (accident, mistake, or- account) be actual or constructive. (Act April 16, 1845, § 3, P. L., 542.) § 5043. Discovery. The Court of Common Pleas in the City and County of Philadelphia shall have the same jurisdiction and power in aU suits now pending or hereafter to be brought, for the discovery of facts, that are now possessed by courts of chancery. (Act April 10, 1848, § 4, P. L., 449.) § 5044. Lost Records. All the powers and authorities conferred upon * * * the several courts of common pleas, by the thirteenth section of the act relative to the juris- diction and powers of the courts, passed the 16th day of June, 1836, relating to the " perpetuation of testimony," shall be and the same is hereby extended and made applicable to the perpetuation of testimony in cases of lost or destroyed records of any of the courts of record in this Commonwealth, whether such records were lost or destroyed before or after the passing of LEGISLATION AS TO EQUITY JTJEISDICTION. 11 this act ; and the same proceedings, orders, decree and judgments shall be had therein, mutatis mutandis, as in cases now authorized by law, and with the like effect ; and when proved, such record shall, have the same legal operation as the original record would have had : Provided, That in all cases the application to perpetuate testimony shall be made in the same court in which the record may be lost or destroyed. (Act April 25, 1850, § 26, P. L., 573.) § 5045'. Extension of Philadelphia Jurisdiction. The courts of common pleas of the several counties of this Common- wealth, in addition to the powers and jurisdictions heretofore possessed and exercised, shall have the same chancery powers and jurisdictions which are now by law vested in the Court of Common Pleas of tlie City and County of Philadelphia. And in all cases an appeal may be taken to the Supreme Court from the final decrees of the said courts respectively, in suits and proceedings in equity, in the same manner and on the same terms and con- ditions as are provided in cases of appeal from the decrees of the Court of Common Pleas of the City and County of Philadelphia. (Act of Feb. 14, 1857, §1, P. L., 39.) § 5046. For Discovery of Property in Aid of Execution. It shall be lawful for the plaintiff, in any judgment for the recovery of money obtained in any court of this Commonwealth, to have a bill for the discovery of the real and personal estate of the defendant in such judg- ment. (Act June 16, 18.36, § 9, P. L., 763.) Such bill may be filed against the defendant in the judgment, and against any person having possession of such real or personal estate, or who may owe or be accountable for the same, or may have knowledge of the same ; and shall be filed in the Court of Common Pleas of the county in which such judgment may be, or if the person of whom discovery may be sought shall reside out of such county, such bill may be filed in the Court of Common Pleas of the county where such person shall reside. {Ibid., 10.) § 5047. Requisites of Bill for Discovery in Aid of Execution. Every such bill shall set forth : I. The i-ecovery of a judgment, as aforesaid, and the amount actually due thereon. II. That there is reason to believe that the defendant in such judg- ment has real or personal estate, wherewith the same may be satisfied. III. That such real estate has been conveyed, transferred or encum- bered, or that such personal estate has been removed, transferred or concealed ; or that by reason of concealment or fraudulent transfer, or incumbrance thereof, the complainant is prevented from having execution of his judgment. 12 LEGISLATION AS TO EQUITY JURISDICTION. IV. If such bill shall be filed against any person other than the defend- ant in such judgment, it shall set forth also that such person has possession or knowledge of such real or personal estate, or that he can make discovery of such facts as wiU enable the plaintiff to have satisfaction of his judgment. {Ibid., 11.) But no such bill shall be filed, unless the complainant therein shall make oath or affirmation, to be filed therewith, that he verily believes the facts set forth therein to be true. (Ibid., 12.) § 5048. Interrogatories in Discovery in Aid of Execution. The complainant in such bill may also, either in the said bill, or by interrogatories to be filed therewith, propound to the defendants therein named such questions touching the subject-matter thereof as may be necessary or proper for the purposes thereof, and as may be according to the rules and practices of the courts of equity. {Ibid., 13.) § 5049. Scire Facias sur Bills of Discovery in Aid of Esecii- tion. Upon the filing of such bill, it shall be lawful for the court, or any judge thereof in vacation, to award a writ of scire facias to the sheriff, requiring him to make known to the defendants therein named, that they be and appear, at a certain time to be appointe.l by the said court, to answer the said bill, and all such interrogatories as shall be propounded to iihem, or show cause why they should not, and abide the judgment of the court in the premises. {Ibid., 14.) But no such defendant shall be compelled to answer such bill or inter- rogatories, at the time so appointed, unless a copy of svich bill and inter- rogatories shall have been served upon him, at least ten days previously thereto. {Ibid., 15.) It shall be lawful for the court or judge, at the time of (awarding) such writ of scire facias, to order that a clause of caxnas be inserted in such writ, against the defendants, or any one or more of them, under the rules and regulations provided on (in) the case of a garnishee in a foreign attach- ment. {Ibid., 16.) From the time of the service of any scire facias as aforesaid, upon any person other than the defendant in the judgment, the personal property of the defendant in the hands of such person shall be bound thereby, and .shall be Uable to be taken in execution, at the instance of the plaintiff in such judgment, in Hke manner as goods or effects in the hands of the garnishee in a foreign attachment ; and if such person shall transfer such personal property to any other person, after such service, he shall be liable to pay the value thereof to the complainant, out of his own proper goods and chattels. {Ibid.,Yl.) % 5050. Costs in Cases of Discovery in Aid of Execution. The costs of all proceedings as aforesaid shall be within the discretion -of the court in which said biU shall be filed, who shall have power to direct LEGISLATION AS TO EQUITY JURISDICTION. IS payment of the same, by either of the parties to such bill, according to the rules of equity and justice. (Ibid., 18.) The oath required by the 12th section of the said act may be made by the agent, attorney or any disinterested person on behalf of the complain- ant in any bill of discovery. (Act April 24, 1844, § 2, P. L., 512.) § 5051. Jurisdiction Conferred on Courts of PhiladelpMa in Dower and Partition. The * * * Court of Common Pleas of Philadelphia County shall • * * have all the power and jurisdiction of a court of equity, in all cases of dower and partition, within the City and County of Philadelphia. (Act March 17, 1845, § 3, P. L., 160.) Subsequent acts were passed upon this subject (April 22, 1863, P. L., 519 ; May S, 1876, P. L., 1:31) which were re- peated in tlie Act of July 7, 18s,5. This last act being given in the succeeding section, it is omitted here. § 5052. General Grant of Jurisdiction in Dower and Parti- tion. The several courts of common pleas of this Commonwealth shall each have all the power and jurisdiction of a court of equity, in all cases of dower and partition, within their respective counties. (Act July 7, 1M85, § 1, P. L., 357.) § 5053. Court may Refer to a Master in Partition. Whenever a bill shall hereafter be filed in an}- court having the jui'is- diction of courts of equity, in cases of partition, it sliall be la.wful for tlie said court, after a decree for partition sliall have been made, to refer the cause to a master or a master and commissioner, to divide and partition the lands and tenements info purparts, and to value the same and to ascer- tain the amounts that shall be paid or charged tliereon for owelty, or which shall be paid or secured to the parties to whom no purparts can be allotted in the manner now authorized by law, under writs of partition issued out of the courts of common law. And the said master, after such partition and valuation has been made, shall award and allot the said purparts to and among the parties entitled, togetlier with tlie sums to be charged thereon and payable as and for owelty of partition : and when the premises cannot conveniently be divided into as many purparts as tliere are parties entitled, to award and allot the amount or sum to be jiaid or secured to them respectively, and tlie times wlien such payments sliall be made, and the purparts out of whicli tlie same shall be payable. (Ibid., § 3.) § 5054. Duty of Court on Report of Master. It shall be the duty of the court, upon the report of the said master or 14 LEGISLATION AS TO EQUITiT JUEISDICTION. master and commissioners being returned, to examine tlie same ; and it shall be lawful for the court to refer the same for alteration or correction, or to set aside the report and direct a new partition and valuation ; and, when such report shall be approved, to confirm the same and direct convey- ances to be made whenever such conveyances are requisite for the purpose of vesting a complete legal title to the purparts in the parties to whom the same shall be allotted. (Ibid., g 3.) § 5055. Effect of Decree conflrming Partition. Whenever a decree confirming a partition as aforesaid shall have been or shall be made, such decree shall have the same effect as a judgment of a court of law in like cases, that the partition remain firm and stable in vesting the title to the purparts in the parties respectively and in severalty, to whom such purparts shall have been or shall be allotted. (Ibid., § 4.) § 5056. Where Master Reports Property cannot be Divided. Whenever a bill shall hereafter be filed in any court having equitable jurisdiction in cases of partition, and the master or the master and com- missioners, to whom the proceedings have been or may be referred, have reported or shall hereafter report that the lands or tenements carmot be divided without prejudice to or spoiling the whole, and the parties have refused or shall hereafter refuse to take the same at the valuation, then it shall be the duty of the said court to oi-der the master to make sale thereof at public auction, giving the like notice that is required in sales under pro- ceedings in partition in the common-law courts. (Ibid., § 5.) § 5057. Return of Master to Order of Sale. The master to whom the said order shall be directed shall make return of the sale to the court wherein the said order was issued, and, if the same shall be approved, the court shall make an order or decree directing the master to make a deed of the property sold, to the purchaser or purchasers, upon the purchase-money being paid or secured to be paid according to the terms of the sale. And before the said deed shall be made and deliv- ered, and before the purchase-money or securities shall be received by the said master, he shall give bonds to the Commonwealth, for the use of the parties interested, in such sum as the court may direct, for the due pay- ment and faithful application of the proceeds of the sale to be received by him. And it shall be the duty of the said master to make distribution thereof amongst the several parties, and report the same to the court afore- said. (Ibid.,%G.) § 5058. Confirmation of Past Decrees in Partition. All partition proceedings in equity heretofore instituted in which final decree has been entered, be and the same are hereby confirmed. (Ibid. , § 7.) LEGISLATION AS TO EQUITY JURISDICTION. 15 § 5059. Disputed Boundaries in Philadelphia. The * * * Court of Common Pleas of Philadelphia * * * shall have all and singular the jurisdictions and powers of a court of chancer}', in all cases of disputed boundaries between adjoining and neighboring lands within the said county, whether the parties owning the same hold or claim to hold under the same or different titles. (Act April 15, 1858, § 1, P. L., 367.) The jurisdiction and powers given by the act to which Ibis act is a supplement, to the courts therein named, shall extend to and embrace the ascertainment and adjustment of disputed boundaries between adjoining and neighboring lands in the County of Philadelphia, where such bound- aries ax-e or shall have become confused or rendered uncertain, either by lapse of time, b}' natural causes, or by the act, neglect or default of any present or former owner or occupant thereof. (Act April 5, 1859, § 1, P. L., 359.) If upon bill filed in any such case, it shall appear that the whole or any part of the lands mentioned in sucli bill have or has never been act- ually parted or divided, the court shall, witliout dismissing the bill, pro- ceed thereupon to decree partition of such undivided land between the parties to the suit, according to their just rights and the law and practice of courts of equity of this Commonwealth : Provided, That before any such decree of partition shall be urade, all pei'sons who shall appear to have title to the land shall be made parties to the suit. (Ibid., 3.) § 5060. Jurisdiction — Tenants in Common of Mines. In all cases in which any coal or iron-ore mines or minerals have been or shall be held by two or mox-e persons, as tenants in common, and coal, iron-ore or mineral has been or shall be taken from the same, by any one or more of said tenants respectively, it siiall be lawful for any one of said tenants in common to apply, by bill or petition in equity, to the Court of Common Pleas of the county in which the lands lie, praying that an account may be decreed and taken of all coal, iron-ore or other mineral, taken by said tenants respectively ; and the said court shall thereupon proceed upon such bill or petition, agreeably to the course of a court of chancery, and shall have full power and authority to make all orders, appointments and decrees, interlocutory and final, that may appertain to justice and equity, in the premises, and may cause to be ascertained the quantity and value of the coal, iron-ore or other mineral, so taken respectively by the respective parties, and the sum that may be justly and equitably due, by and from and to them respectively therefor, according to the respective proportions and interests to which they may be respectively entitled in the lands : Provided, That all the tenants in common shall be made parties to such bill or petition, and that if any of them reside out of the county in which such lands lie, or out of this Commonwealth, the court may make such order for serving process or notice upon them, by publication or otherwise, as the said court shall deem fit and proper ; and may take the bill or peti- tion pr-o confesso, and proceed to final decree, or proceed by attachment 16 LEGISLATION AS TO EQUITY JURISDICTION. and sequestration against such of them as shall fail to appear thereupon, or shall neglect or refuse to stand to obey and abide by the orders and decrees of said court. (Act April 25, 1850, § 24, P. L., 573.) Any party may appeal to the Supreme Court from any final decree made by any court of common pleas under this act : Provided, That such appeal be taken within one year after the rendering of such final decree, and that the party appealing, before taking his appeal, shall file and make affidavit that the same is not intended for delay, and shall give such secu- rity to prosecute his appeal vpith effect, as shall be required by the said Court of Common Pleas or the Supreme Court. {Ibid., 25.) In addition to the rights granted to persons holding coal or iron-ore mines or minerals, as tenants in common, by the 24th section of the Act of 25th of April, 1850, it is hereby further enacted, that any person or persons claiming to be tenants in common, joint-tenants, or otherwise interested in any coal or iron mines or other minerals, and which said tenancy, claim or right shall be denied or resisted by any othqj- person or persons claiming the same, it shall be lawful for such tenant in common, joint-tenant or other party in interest to apply by bill or petition in equity, to the Court of Common Pleas of the county in which the lands lie, setting forth the right or intei-est which such claimant has or claims to have in said iron-ore, coal mine or other mineral, and that the use, exercise or existence of said right is denied by the persons claiming the same ; whereupon the said court, shall proceed to examine, adjudicate and determine the rights of the sev- eral parties, in the manner prescribed in the above-recited section ; and all parties in interest sliall be made parties to such proceeding. (Act of AprU. 22, 1856, §1, P. L., 502.) § 5061. Jurisdiction as to Charities. No disposition of property hereafter made for any religious, charitable, literary or scientific use shall fail for want of a trustee, or by reason of the objects being indefinite, uncertain, or ceasing or depending upon the dis- cretion of a last trustee, or being given in perpetuity, or in excess of the annual value hereinbefore Umited, but it shall be the duty of any orphans' court, or court having equity jurisdiction in the proper county, to supply a trustee, and by its decrees to carried into effect the intent of the donor or testator, so far as the same can be ascertained, and carried into effect con- sistently with law or equity ; for which purpose the proceeding shall be instituted by leave of the Attorney-General of the Commonwealth, on the relation of any institution, association or individual, desirous of carrying such disposition into effect, and willing to become responsible for the cost thereof, subject to an appeal as in other cases in said courts respectively, and to be reviewed, reversed, affirmed or modified by the Supreme Court of this State ; but if tlie objects of the trust be not ascertainable, or have ceased to exist, or such disposition be in excess of the annual value permitted by law, or in perpetuity, such disposition, so far as exceeding the power of the courts to determine the same by the rules of law or equity, shall be taken to have been made subject to be further regulated and disposed of by the Legislature of this Commonwealth, in manner as nearly in conformity with LEGISLATION A3 TO EQUITY JTJEISDICTION. 17 the intent of the donor or testator, and the rules of law against perpetuities, as practicable, or otherwise to accme to the public treasury for the public use. (Act of April 26, 1855, § 10, P. L., 331.) It shall be the duty of the auditor-general, whenever he shall have reason to believe that any property shall be defeasibly held, and liable, upon office found, to accrue to the treasury, or that the income of any corpora- tion or association, as aforesaid, shall exceed the limit allowed by law, to call upon any and all officers or trustees thereof, to make, within thirty days, a true retux-n and exhibit of all their property and the annual income thereof ; and if no return be made within such time, or the same be unsat- isfactory to him, it shall be further his duty to cause to be filed a bill of discovery in the Supreme Court, or in any court of the proper county having equity jurisdiction, against the officers or trustees of an}' such cor- poration or association which the defendants therein shall answer under the compulsion usual in such cases, and their answers may be used in any proceeding to assert the rights of the Commonwealth. {Ibid., § 14.) "Whenever any estate, real or personal, shall be vested in trustees, by gift or devise, for the purpose of applying the income arising therefrom for the benefit, supijort or maintenance of a designated class of persons, which said class of persons shall become extinct, so that there shall be no one to derive any benefit from the said income, if there be no heirs to claim said fund, it shall and may be lawful for the said trustee or trustees having charge of the said estate, to apply, by petition, to the Court of Common Pleas of the county in which they or a majority of them reside, for authority to apply the said income to the benefit, support or maintenance of some other class or classes of persons similarly situated, as near as may be, to those for whose benefit, support or maintenance the trust was originally created ; and thereupon the said Court of Common Pleas, after proper ex- amination into the statements set forth in the petition, and being satisfied as to the correctness of the same, may have power to order and decree that thenceforth the trustees shall apply the said income to the benefit, support or maintenance of the new class or classes of persons mentioned in the said petition. (Act of May 26, 1876, § 1, P. L., 311.) The funds and efiiects of unincorporated associations for benevolent, charitable or beneficial purposes, constituted or organized under any war- rant or charter granted by any association recognized or acknowledged as the parent or superior body, where the rules and regulations of such parent or superior body require that upon the dissolution, expulsion, surrender of warrant or charter, or vacation of the same by such parent or superior body, the moneys, property and effects of such subordinate association shall be delivered and paid to the parent or superior body, are hereby declared to be trust property, and it shall be unlawful for any such subordinate association to divide or distribute the moneys, property or effects, or any part thereof, to and among the members of such subordinate association, or any member thereof, either directly or indirectly, or by way of donation ; but all such moneys, property and other effects of such subordinate associations, upon the dissolution, expulsion, surrender of warrant or charter, or vacation of the same by the parent or superior body for which they have obtained the 2 18 LEGISLATION AS TO EQUITY JUKISDICTI6N . warrant or charter, under which they have been constituted or organized, shall be i^aid and dehvered to the proper officers of such parent or superior body ; and in case any such subordinate association sliall or may have made any division or distribution of the moneys, property or effects held by such subordinate association, or any part thereof, to or among the mem- bers thereof, or any number of them, either directly or indirectly, the prin- cipal officers or trustees of the parent or superior body, to the use of such parent or superior body, may recover such moneys, property or other effects so divided or distributed contrary to the provisions of this act from the person or persons to whom the same, or any part thereof, shall or may have been paid or delivered ; and the several courts of equity of this Com- monwealtli are hereby vested with full power and authority to enforce the provisions of this act, as in other cases within their jurisdiction ; and the said parent or superior body to whom any moneys, property or other effects of such subordinate association shall be paid and delivered, shall take and hold the same for the purposes and intents for which they were received and held bysuch subordinate associations : Provided, hoivever, That all suits commenced or brought to enforce the provisions of this act shall be com- menced or brought within two years next after the time when such division or distribution shall have been made. (Act of June 36, 1883, § 1, P. L., 133.) § 5062. Jurisdiction in Cases of Mortgages by Corporations. Each of the several courts of common pleas of this Commonwealth shall have and exercise all the powers of a court of chancery, in all cases of, or for enforcing rights vmder mortgages of the property or franchises of any railroad, canal or navigation corporation, where such property or fran- chises, or any part thereof, shall be situate or exercisable within the limits of this Commonwealth, and belonging to or be exercisable by any domestic corporation, or any foreign corporation, under permission granted by the laws of this Commonwealth. (Act of May 5, 1876, § 1, P. L. , 133.) When the corporation shall have either voluntarily appeared to any suit brought under or covered by this act, or shall have been duly served with process, the court in which such suit is or shall be pending shall have jurisdiction of the subject-matter, irrespective of the local situation in this State of the mortgaged premises ; and its process to enforce any interlocu- tory or final order or decree made by such courts in relation to the preser- vation, custody, sale, or other disposition of the inortgaged premises, may be •executed within any county of the State : Provided, That where such mort- gages shall have been given by a corporation having a corporate existence in this State only, the proceedings upon the said mortgage shall be had in the county within which the principal office of the said company shall be .situate. (Ibid. , § 3.) The provisions of this ECct shall apply to all proceedings now pending in •any court of common pleas of this Commonwealth ; and such proceedings shall be as valid as if instituted or taken after the passage of this act, and .are hereby ratified and confirmed. (Ibid., § 3.) Each of the several courts of common pleas of this Commonwealth ■shall have and exercise all the powers of a court of chancery in all cases of LEGISLATION AS TO EQUITY JURISDICTION. 19 or for enforcing rights under mortgages of the property or franchises of any coal, iron, steel, lumber or oil, or any mining, manufacturing or trans- portation corporation, where such property or franchises, or any parttliere- of , shall be situate or exercisable within the limits of this Commonwealth, and belong to or be exercisable by any domestic corporation or any foreign corporation under permission granted by the laws of this Commonwealth. (Act of March 23, 1ST7. § 1, P. L., 33.) When the corporation shall have either voluntarily appeared to any suit brought under or covered by this act, or shall have been duly served with process, the court in which such suit is or shall be pending shall have jurisdiction of the subject-matter, irrespective of the local situation in tlris state of the mortgaged premises ; and its process to enforce any interlocu- tory or iinal order or decree made by such courts, in relation to the preser- vation, custody, sale or other disposition of the mortgaged premises, may be executed within any county of the State : Provided, That where such mortgage shall have been given by a corporation having a corporate exist- ■ence in this State only, the proceedings upon the said company shall be had in the county within which the principal office of the said company shall be situate. {Ibid., % 2.) The proviso to the second section of the act entitled " An act conferring equity jurisdiction upon the Courts of Common Pleas in all cases of the mortgages of the property, or franchises of coal, iron, steel, lumber or oil, or mining, manufactui'ing or transportation companies," approved the twenty-third day of March, Anno Domini one thousand eight hundred and seventy-seven, * * * be and the same is hereby amended so as to read as follows : Provided, That where such mortgage shall have been given by a corporation having a corporate existence in this State only, the proceedings upon the said mortgage shall be had either in the county within which the principal office of the said company is located, or in the county in which all or part of the mortgaged premises is situated. (Act June 34, 1885, P. L., 151.) All definitive orders and decrees for the payment of money hereafter to be rendered in any suit or proceeding instituted after the passage of this act, by the Court of Common Pleas of any county of this Commonwealth, sitting as a court of equity, or by any orphans' court, shall be transferable to the corresponding court of any other county, in like manner as judg- ments at law may now be transferred, and with the same effect with respect to lien and execution. (Act June 5, 1885, P. L., 78.) § 5063. Jurisdiction— Cases under General Plank-road Law. It shall and may be lawful for the several courts of common pleas of Pennsylvania to take and exercise jurisdiction in equity, by bill or other- wise, according to the course of practice in said courts, in all cases arising under the general plank-road law, and its supplements, of this Common- wealth ; and it shall be the duty of said court to exercise such jurisdiction, in all oases where the plaintiff or complainant shall make oath or affirma- tion that his remedy at law is inadequate ; and either party to such pro- ceedings in equity may take a writ of error or appeal to the Supreme Com-t, 20 LEGISLATION AS TO EQUITY JTrEISDICTION. in any district in which the same shall then be sitting. (Act of April 14, 1863, § 1, P. L., 374.) § 5064. Jurisdiction as to Apportionment of Wharfage or Dockage. In all cases when the owner or owners of adjoining wharves, docks, landings or river-front, or any part or portion thereof, in the port of Phila- delphia, shall disagree as to the proper apportionment of the wharfage or dockage payable to them in accordance with their titles, by persons making use of the same, or by vessels lying in front thereof, it shall be the duty of the master warden and board of wardens of said port, upon the written application of one or more of such owners, and the said wardens are hereby authorized and required after notice to the parties interested, and in accordance with the established custom and usages of the port, or where there is no such usage, then as justice and equity may require, to deter- mine the relative proportions of such wharfage and dockage belonging to the several proprietors of said adjoining wharves, docks, landings or river- front, or any parts thereof : Provided, That nothing herein contained shall be construed to authorize the said wardens to take cognizance of any questions involving the title to such property ; but such jurisdiction, and the power to enforce the rights of the owners of said wharves, docks, land- ings or river-front, to wharfage and dockage, from persons or vessels here- tofore or hereafter using or lying opposite to the same, shall exist and remain in the proper courts of law. (Act April 8, 1851, § 5, P. L., 354.) An owner or owners of adjoining wharves, docks, landings or river- front, as referred to in section five of the act to which this is a supplement, is hereby authorized to enter an appeal from a decision of the board of wardens to the Court of Common Pleas of Philadelphia, sitting in equity ; whereupon the said court shall have power and authority to hear and determine all matters in relation thereto. (Act April 24, 1854, § 1, P. L., 485.) § 5065. How Chancery Powers to be Exercised— How Process to be Served. In every case in which any court, as aforesaid, shall exercise any of the powers of a court of chancery, the same shall be exercised according to the practice in equity, prescribed or adopted by the Supreme Court of the United States, unless it be otherwise provided by act of Assembly, or the same shall be altered by the Supreme Court of this Commonwealth, by general rules and regulations made and published as is hereinbefore provided. (Act June 16, 1836, § 13, P. L., 789.) No process issued by the said courts of the Citj- and County of Phila- delphia, * * * under the chancery powers herein specially granted, except- ing such as have heretofore been exercised, shall at any time be executed beyond the limits of the city and county aforesaid. {Ibid.) When any bill in equity shall be filed in any of the courts of this Commonwealth, to perpetuate the evidence of title to lands, tenements and hereditaments, in which bill the Commonwealth is a necessary party, the LEGISLATION AS TO EQUITY JUEISDICTION. 21 process may and s)iall be served on the Attorney-General, or his deputy for the county where such lands, tenements or hereditaments may lie, whose duty it shall be to attend to the interests of the Commonwealth in the premises. (Act of April 6, 1844, § 1, P. L., 213.) In all cases where mortgagees and plaintiflEs in judgments shall not reside within tlie county where mortgages are recorded and judgments entered, and bills in equity shall be filed by the mortgagors or defendants in judgments against the mortgagees or plaintiffs in judgments, or against their assignees or legal representatives, for the entry or satisfaction on the said mortgages and judgments, or to open the said judgments for the pur- pose of defense, subpoenas or other process may be served, by the proper officers of said counties or their deputies, on said mortgagees or plaintiffs in said judgments, their assignees or legal representatives, beyond the bounds of said counties, as if they resided therein, or upon any agent or attorney of record of said mortgagees or plaintiffs in said judgments, within the counties where tiie said mortgages may be recorded or the judgments may be entered. (Act of March 27, 1854, § 2, P. L., 214.) It shall be lawful for any court of this Commonwealth having equity jurisdiction, upon special motion of the plaintiff or plaintiffs, in any suit in equity which has been or shaU be instituted therein, concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating of testi- mony concerning any lands, tenements and so forth, situate or being witliin the jurisdiction of such coui't, or concerning any charge, lien, judg- ment, mortgage or incumbrance thereon, or where the court have acquired jurisdiction of the subject-matter in controversy, by the service of its pro- cess on one or more of the principal defendants, to order and direct that any subpoena, subpoenas or other process to be had in such suit, be served upon any defendant or defendants therein, then residing or being out of the jui-isdiction of such court, wherever he, she or they may reside or be found ; and upon affidavit of such service had to proceed as fully and effectually as if the same had been made within the jurisdiction of such court : Provided, That it shall appear to such court, by affidavit, affidavits or other documents applicable for the purpose, before making such order in what place or county such defendant or defendants reside, or are, or probably may be found, and if such place be without the United States, whether there are any officers of the United States residing thereat, or near thereto, and by what means such service may be authenticated : And provided, That such order limit a time, depending on the place where such process is to be served, after the service thereof, within which compliance with the requirements thereof must be made by such defendant or defend- ants ; such process to be returnable at such time after the service thereof, as such court shall, by special order, direct : Avd further provided. That when such process shall be served, such defendant or defendants shall also be served with a copy of the order authorizing the service thereof, and a copy of the bill or petition, if such process be a subpoena thereon, but if not, a statement of the substance and object of the proceeding whereon the same is founded : And provided also. That the affidavit of such service of process and copies, or statements aforesaid, if such service be had within 22 LEGISLATION AS TO EQUITY JUEISDIOTION. tlie United States, may be made and taken before any officer of the UTiited States, or of any of the States or Territories thereof, authorized to administer an oath ; and if such service be had without the United States, the same shall be authenticated as such court shall by special order direct. (Act of April 6, 1859, §1, P. L., 387.) Whenever it shall appear to the satisfaction of such court, by affidavit, affidavits or other documents applicable for the purpose, that any defendant or defendants in any such suit as is hereinbefore mentioned, cannot, upon diligent inquiry, be found, so as to be personally served with any process to be had therein, ib shall be lawful for such court, upon special motion, to make an order upon such defendant or defendants similar to the require- ments of such process, specifying the time when compliance therewith must be made, and upon the expiration of such specified time, to proceed as fully and effectually as if such process had been duly served within the jurisdiction of such court : Provided, That a statement of the substance and object of the bill, petition or other proceeding, whereon such order is founded, and a copy of such order, be published in such one or more news- papers, and at such time as such court shall, by special order, direct. {Ibid., % 2.) No order or process of contempt shall be made or issued under this act; and nothing herein shall make it compulsory on the plaintiff or plaintiffs in any such suit as hereinbefore mentioned to serve with process, or bring before such court, or proceed against any party or parties, person or persons, further or otherwise than such plaintiff or plaintiffs are now by law or the practice of such court required to do. {Ibid., § 3.) In all cases where bills in equity shall be filed by alienees of mort- gagors, or their lieirs or assigns, or by parties claiming an interest in lands, by virtue of sales under judgments, service of subpoenas or other process, may be made as provided in the second section of an act entitled '• An Act relative to bringing suits by creditors and others, against executors, admin- istrators, assignees and other trustees in certain cases, and serving notices and for satisfaction of mortgages, and opening judgments in certain cases," approved the 34th day of March, Anno Domini 1854. (Act of April 5, 1863, §1,P.L.,268.) § 5066. Injunctions— Where Bights are Invaded by Corpora- tions. In all proceedings in courts of law or equity of this Commonwealth, in which it is alleged that the private rights of individuals, or the rights of franchises of other corporations, are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had, to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from whicli such alleged injury to private rights, or to the rights and franchises of otlier corporations, re- sults ; and if such rights or franchises have not been conferred upon such corporations, such courts, if exercising equitable power, shall, by injunction, at suit of the private parties or other corporations restrain such injurious LEGISLATION AS TO EQUITY JURISDICTION. 23 acts ; and if the proceedings be at law, for damages, it shall be lawful therein to recover damages for such injury as in other cases. (Act of June 19, 1871, §1, P. L., 1361.) g 5067. Where Railroads Cross Lines of Railroads. When such legal proceedings relate to crossings of lines of railroads by- other railroads, it shall be the duty of courts of equity of this Common- wealth to ascertain and define, by their decree, the mode of such crossing which will inflict the least practicable injury upon the rights of the com- pany owning the road which is ir^tended to be crossed ; and if, in the judg- ment of such court, it is reasonably practicable to avoid a grade crossing,, they shall by their process prevent a crossing at grade. {Ibid., § 8.) § 5068. When Injunctions shall not Issue. No courts within the City and County of Philadelphia shall exercise the powers of a court of chancery, in granting or continuing injunctions against the erection or use of any public works of any kind, erected, or in progress of erection, under the authority of an act of the Legislature, until the questions of title and damages shall be submitted, and finally decided by a common-law court ; and in such cases the court shall have authority to issue a vPiiire for the summoning of a jurj', to the sheriff of an adjoining county. (Act of April 8, 1846, § 1, P. L., 272.) § 5069. Security. No injunctions shall be issued by any court or judge, until the party applying for the same shall have given bond with sufficient sureties, to be approved by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction. (Act of Jlay 6, 1844, § 1, P. L., 564.) The 1st section of the act entitled " An Act further to regillate pro- ceedings in courts of justices, and for other purposes," approved the 6ch day of May, 1844, shall not apply, nor be held or construed to apply, to any bill or proceeding in equity, whether now pending or hereafter to be instituted, wherein the Commonwealth is plaintiff or complainant : Provided, how- ever, That in all such cases, it shall be the duty of the court in which the same may be depending, as far as practicable, to expedite the final liearing and determination thereof, by such order or orders as they may deem ex- pedient or advisable for that purpose. (Act of March 17, 185.3, § 1, P. L., 208, 685.) The 1st section of the said act shaU not be held or construed to apply to any bill or proceedings in equity now pending, or which may be hereafter instituted, wherein the Commonwealth, or any city or county of this Com- monwealth, is libellant, plaintiff or complainant; nor shall any city or county be required to give security on appeal to the Supreme Court in any proceeding in equity : Provided, hoirever. That in all such cases, it shall be the duty of the court in which the same may be pending, as far as practicable, to expedite the hearing and final determination thereof, by such rules, order or orders, not inconsistent with the laws of this Com- 24 LEGISLATION AS TO EQUITY JUEISDICTION. monwealth, as justice and equity may require. (Act of Nov. 6, 1856, § 1, P. L., 797.) § 5070. Appeals from Decree Granting or Eefusing Prelimi- nary Injunction. In all cases in equity in which a special injunction has been or shall be granted by any court of common jjleas, * * * an appeal to the Supreme Court for the proper district shall be allowed without affidavit or security, but the pendency of such appeal shall not suspend the operation of such special injunction or the proceedings ill the original suit. And all such appeals shall be heard by the Supreme Court in any district in which it may be in session, as is provided in cases in equity originating m the Supreme Court. (Act Feb. 14, 1866, § 1, P. L., 28.) In all cases in equity, in which a special or preliminary injunction has been refused by any Vourt of common pleas, an appeal to the Supreme Court for the proper district shall be allowed, but the pendency of such appeal shall not suspend proceedings in the original suit ; and all such appeals shall be heard by the Supreme Court in any district in which it may be in session, as is jDrovided in cases in equity originating in the Supreme Court. (Act June 12, 1879, § 1, P. L., 177.) In all appeals under this act, only such bills, answers and affidavits a.s shall be certified by the judge or judges of the lower court, as having been before said court at the hearing for injunction, shall be considered by the Supreme Court ; and all cases shall be heard and determined, as though said court had original jurisdiction in the premises, and the application for injunction had been made to said court. (Ibid., § 2.) § 5071. General Provisions as to Appeals in Equity. Any person or persons, body or bodies politic or corporate, parties to any suit in equity now pending, or hereafter to be instituted in the Court of Common Pleas of the County of Philadeliihia, who may be affected by any interlocutory or final order or decree in such suit in equity, hereafter to be made by the said Court of Common Pleas, shall be entitled to appeal there- from to the Supreme Court in and for the eastern district of Pennsylvania, upon the same terms, and with the same regulations as are provided by the existing laws, in regard to appeals from an}' definitive sentence or decree of an orphans' court : Procidcil, aJirayn, That in addition to a compliance with the foregoing terms and regulations, it shall be necessary for the party appellant, in order to secure to hhnself the advantage of a stay or supersedeas of execution, to comply with the following further terms and conditions : — § 5072. Bond to be Given if Stay Desired. I. If an appeal be made from any order or decree of the said Coui-t of Common Pleas in equity, directing the payment of monej^, such appeal shall not stay the issuing of execution or other process to enforce the decree or LEGISLATION AS TO EQUITY JUKISDIOTION. 25 any proceedings thereon, unless a bond be given by or on behalf of the appellant, to the adverse party, in a penalty at least double the sum decreed to be paid, with two sufficient sureties, to be approved by the said Court of Common Pleas, or one of the judges thereof, conditioned, that if the appel- lant shall fail to prosecute his appeal, or if the same be dismissed or discon- tinued, or if the decree appealed from, or any part thereof, be affirmed, then that such appellant will pay and satisfy the amount directed to be paid by such decree, or the part of such amount as to which such decree shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant by the said Supreme Court upon such appeal. § 5073. Documents to be Deposited. II. If the decree appealed from direct the assignment or dehvery of any securities, evidences of debt, documents, chattels or things in action, the issuing and execution of process to enforce such decree shall not be stayed by such appeal, unless the article required to be assigned or delivered be brought into court, or placed in the custody of such officers or receivers as the said Court of Common Pleas shall appoint, or unless a bond in a penalty, at least double the value of the articles so directed to be delivered or assigned, be given to the adverse party, with two sufficient sureties, to be approved as hereinbefore directed ; conditioned, that the appellant wiU abide and obey the order of the said Supreme Court, made upon the subject of such appeal. § 5074. Conveyances to be Deposited. III. If the decree appealed from direct the execution of any convey- ance or other instrument by any party, tlie issuing and execution of pro- cess to enforce such decree shall not be stayed by such appeal, until the appellant shall have executed the conveyance or instrument directed, and deposited the same with such officers or receivers, as shall be designated by the said Court of Common Pleas. § 5075. Bond to Provide against Waste. IV. If the decree or order appealed from direct the sale or delivery of the possession of any real property, the issuing and execution of process to enforce the same shall not be stayed, until a bond be given with sureties as hereinbefore directed, in such penalty as the Court of Common Pleas shall deem sufficient, conditioned, that during the possession of such real prop- erty by such appellant, he will not commit or suffer any waste to be com- mitted thereon ; and in case such appeal be dismissed or discontinued, or such order or decree be affirmed, such appellant will pay the value of the Use and occupation of such property, from the time of such appeal, until the delivery of the possession thereof pursuant to such order or decree. ^ 5076. When the Appeal shall be a Stay. v. Whenever in the foregoing cases an appeal shall be perfected by 26 LEGISLATION AS TO EQUITY JURISDICTION'. bringing into court, or depositing, pursuant to its order, any articles re- quired to be so deposited, or any instruments required to be executed, or by the giving a bond as herein prescribed, such appeal shall stay all further- proceedings in the said Court of Common Pleas upon the order or decree appealed from, and upon the subject-matter embraced in such order or de- cree ; but shall not prevent the said Court of Common Pleas from proceed- ing upon any other matter included in the bill and not affected by said 'order or decree : Provided, however. That whenever the order or decree appealed from directs the sale of perishable property, notwithstanding any such appeal, and the compliance with the foregoing directions, such property may be sold by final order of the said Court of Common Pleas, after the making of such appeal ; and the proceeds of such sale shall be brought into- the said court to abide the final order and decree of the said Supreme Court. (Act of March 17, 1845, § 1, P. L., 158.) § 5077. Appeals from Decrees other than those of Philadel- phia Courts. Any person or body corporate aggrieved by any final order or decree in equity, under the general or special equity powers conferred upon the several district courts and courts of common pleas of this Commonwealth, other than those of the City and County of Philadelphia, in any suit or pro- ceedings now pending, or which may hereafter be instituted, shall be en- titled to an appeal to the Supreme Court, in the same manner, and upon the same terms, as appeals are allowed from the orphans' court. (Act April 31, 1846, §3, P. L.,433.) § 5078. Decree a Lien— Revived by Scire Taeias. Decrees in equity, for the payment of money, shall be and constitute a. lien on the real estate of the defendants or debtors named in the said decree, in the manner, for the like period and witli the same force and effect as the lien of judgments rendered by and in the common-law courts of this Commonwealth, and shall be entered in like manner in the judgment or lien-docket of the proper county : and the complainant or plaintiff in such decree shall have the like remedy, by writ of scire facias or otherwise, for' the revival and continuance of the said lien, as is prescribed by existing laws for the continuance of the lien of said judgments ; and the proceed- ings under such writ of scire facias, or other process, and the entry of a decree of revival maybe regulated, so far as is necessary, by rules ordained by the proper court. (Act March 39, 1859, § 1, P. L., 389.) Should any issue of fact arise in the course of such proceeding of re- vival, the same shall be proceeded in and determined, by an issue, directed in the manner now practiced in courts of equity. {Ibid., § 3.) § 5079. Amendments may be Made. In all proceedings in equity, according to equity forms, the several * * *' courts of common pleas in this Commonwealth may permit, at their discre- LEGISLATION AS TO EQUITY JURISDICTION. 2T tion, and when in their opinion the same will affect the merits of the mat- ter in controversy, and expedite justice, amendments to be made in bills, answers, pleas or other matters, in the same manner as now obtains in common-law cases and practice ; proper notice to be given to the adverse party, whose right shall be protected by continuance, if desired. (Act of May 4, 1864, § 2, P. L., 775.) § 5080— Pees, Costs. It shall be the duty of the judges of the several district courts and courts of common pleas in this Commonwealth, to make and establish for their respective courts, a tariff of fees and costs in equity proceedings and cases. (Act May 4, 1864, § 1, P. L., 775.) § 5081. Jurisdiction to Reform Acknowledgments. In every case, when it shall be alleged by any party in interest, that any deed, mortgage, power of attorney or contract in relation to real estate, to which is appended a certificate of acknowledgment, defective in. form, was, in fact, really and properly acknowledged, in due form of law, by the grantor or grantors therein named, it shall be lawful for the court of common pleas of the county in which the land deeded, mortgaged or contracted is situated, to examine into the truth of such allegation, and, if satisfied of its truth, to make a decree for the reforming of such certificate of acknowledgment, in accordance with the actual facts : Provided, That this act shall not apply where suit or suits have already been commenced to recover the real estate conveyed by such instruments of writing to which is appended said certificate of acknowledgment defective in form. (Act May 25, 1878, § 1, P. L., 149.) The proceedings under this act shall be by bill in equity, as in other cases for the reformation of a written instrument. (Tbid., § 2.) § 5082. Contracts of Decedents for Sale of Real Estate.— See Brews. Practice, Vol. IV". : — § 4668. Holder of Decedent's Contract for Sale of Realty shall, before suit brought, prove the same — Probate to be recorded — Executors or Administrators may petition — "When and how Court may decree— Effect of Deed. § 4670. Executor of an Executor and Administrator De Bonis Non may Convey Lands under Act of 1792. § 4670. A commission may issue to examine witnesses, etc. § 4670. Parol contract may be proved before the Common Pleas, etc. Notice must be given, etc. If the court be satisfied, etc. The adjudication is recorded, etc. Executor's or Administrator's petition for leave to convey^ etc. 28 LEGISLATION AS TO EQUITY JUEISDICTION. § 4671. The Common Pleas may order a co-executor or co-adminis- trator to convey to his colleague, etc. § 4672. Power Conferred on Orphans' (^ourt to Decree Specific Per- formance— Parol Contracts— Decree of Orphans' Court may be Recorded- Duty of Executor to Convey— When Executor is Purchaser, Co-Executor or Sheriff Conveys. § 4673. Where One of Two Vendors Dies. g 5083. Mortgagors and Assignors for Benefit of Creditors may pay into Court Amount Claimed, Secure Sat- isfaction or Re-conveyance and have the Just Amount Ascertained. The mortgagors in any mortgage, or the assignees (assignors) in any deed of assignment in trust for the benefit of creditors, shall have the right, upon application to the court of common pleas of tlie county where the land mortgaged or assigned is situated, by bill or petition, setting forth the facts, to pay into court the amount of money claimed by the said mortgagee or trustee under the mortgage or assignment, stating, if any. objections to the claim of such mortgagee or assignee ; and the court, upon payment of the said amount claimed into court, shall order anil decree that satisfaction shall be entered upon said mortgage, or that the assignee or assignees shall reconvey the assigned property, and the court shall proceed to hear and determine the objections to the payment of any part of the money in court as (to) right and justice shall belong, and shall decree accordingly. (Act Aprils, 1851, §14, P. L., 871.) § 5084. When Bank Declared Fraudulently Insolvent, its Assignee shall File a Bill against Officers, etc. Whenever any bank now, or that may hereafter be incorporated under any law of this Commonwealth, shall be declared fraudulently insolvent, either by the report of auditors, or the verdict of a jury upon an issue formed by direction of the court, then, and in that case, the assignee of said bank shall prepare, or cause to be prepared, a bill in equitj-, in which the said assignees shall be plaintiffs, and those who are officers and directors of said bank at the time of its assignment, as also those who theretofore had been officers and directors of said bank, and by whose acts of omission or commission, the fraudulent insolvency, in whole or in part, of said bank was caused, shall be defendants ; in which said bill the plaintiffs shall make the necessary and proper charges against the defendants, setting forth the fraudulent insolvency of said bank, that the same was caused by the acts of omission or commission of the defendants, or some of them, particularly specifying the fraudulent acts complained of, and by whom committed, the amount of the outstanding and unredeemed paper issues of said bank, including its certificates of deposit, and how much of each, and shall pi-ay that the said defendants, or such of them by whose acts of omission or ■commission the fraudulent insolvency of said bank was caused, shall be adjudged and decreed to pay to the plaintiffs a sum of money equal in LEGISLATION AS TO EQUITY JURISDICTION. 29 amount to all the outstanding and unredeemed paper issues and certificates of deposit of said bank. (Act April 12, 1867, § 1, P. L., 71.) The said biU shall be heard by the court of common pleas or district court of the county in which said bank is, or was located ; service of a copy of the bill upon the defendants named therein, or any of them, in any city or countj' of this Commonwealth, shall be a sufficient service thereof, so as to require the party or parties so served to appear and answer, demur or plead thereto ; and if no such service can be had upon any of said defend- ants, then the same may be served as to thom, by publication of a copy of said bill in such newspaper or newspapers as the court may direct, for six weeks previous to the return-day ; and if default is made, or if upon tlie hearing the facts as set out in the bill are established, said court shall enter a decree as prayed for in said bill, and award the proper process to carry the same into effect : Provided, That upon final decree made, either party may remove the proceedings to the Supremo Court, as in other cases. {Ibid., § 2.) § 5085. Wlien Foreign Attachment may Issue in Equity. In any case in which a bill in equity may hereafter be filed against a defendant or defendants not residing in the State of Pennsylvania, in which there shall be included a prayer of a decree for tlie payment of money, it shall be lawful for the plaintiff to cause a writ of foreign attach- ment to be issued against the real or personal estate of such defendant or defendants, in the following form : County, ) The Comjionvfealth of Pennsylvania. ( ' ' To the Sherijf of said County, greeting : "We command you that you attach , late of your county, by all and singular his goods and chattels, lands and tenements, in whose hands or possession soever the same may be, so that lie be and appear before our court of to be holden at , in and for the said county, on the day of next, there to answer the allega- tion of a bill in equity, filed in the Court of Common Pleas of said county. "Wliich writ shall be executed by the sheriff in the manner prescribed by law for the service of writs of foreign attachment. (Act of May 23, 1887, §1, P. L., 163.) In case the defendant or defendants, against whose property an attach- ment has been issued as aforesaid, shall not appear and answer the allega- tions of the biU, at or before the first Monday of the third term next ensu- ino- after the issuing of said attachment, tlien and in such case the plaintiff shall be at liberty to have a decree pro confesso entered against said defend- ant or defendants, and, thereafter, to proceed upon the decree so entered pro confesso by scire facias against the garnishee or garnishees, in the same manner as proceedings begun by foreign attachment in actions at law. (Ibid., § 2.) CHAPTER ni. RULES IN EQUITY. ADOPTED BY THE SUPREME COURT OF PENNSYLVAlfIA, MAY 2T, 1865, TO TAKE EFFECT JULY 1, 1865. Note. — The Amendments to these Rules, adopted January 15, 1894, are noted where appropriate in connection with the Rule altered or amended. The Amendments are at length at the end of these Rules. RULE I. MISCELLANEOUS RULES. § 5086. Equity Side of Court to be Open. § 1. The equity side of the supreme court, district coiirts, and courts of common pleas shall be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocu- tory motions, orders, rules and other proceedings, preparatory to the hear- ing of causes upon their merits. (Note. — District courts were abolished by the Constitution of ".Z"i, Article v., §6.) § 5087. Prothonotary's OflS.ee to be Open. § 2. The prothonotary's ofSce shall be open, and the prothonotary shall be in attendance therein daily, during office hours, for the purpose of 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. § 5088. Powers of Nisi Prius Judge now Abolished— Revis- ion, etc. § 3. 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 30 RULES IN EQUITY. 81 the same, and make all necessary decrees as fully as the Supreme Court in banc might or could do, subject to revision according to the ninth section of the Act of 36th of July, 1843. The nisi prius shall be open for equity cases on all juridical days. {Note.— Nisi Prius courts were abolished by the Constitution of 1874, Article V., § 31.) § 4. When any case in equity, within the meaning of the first section of the Act of 8th April, 1853, comes into the Supreme Court in banc for revision, it shall be certified from district to district until determined, as required by tlie act aforesaid. All such c-ases, instituted in other districts than the eastern district, shall be disposed of by the Supreme Court in banc, vrithout a preliminary reference to tlie judge at nix! pi-ins, &nd shall be certified for that purpose from district to district, as the said act requires. (Note.— Nisi Prius courts were abolished by the Constitution of 1874, Article V., § 21.) EULE II. PROCESS AND APPEAEANCE. § 5089. BiU to be Printed and Piled. § 5. No suit shall be deemed pending until the bill be actually filed in the prothonotar\''s office. Every bill shall be printed, except in the cases specially provided for in these rules ; and the prothonotary shall endorse thereon the time of filing the same. § 509O. Defendant to Appear and Answer— Notice. § 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 tlie service ui:ion 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 District (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 plaintiff's solicitor). " Note. — If you fail to comply with the above directions by not enter- ing an appearance in the prothonotary's office, within fourteen days, you 32 EULBS IN EQUITY. will be liable to "have the bill taken pro confesso, and a decree made against you in your absence." {Note. — By the Amendments, fifteen days after service are now allowed for entering an appearance and iiling an answer. Thirty days additional may be allowed by the court for filing the answer.) § 5091. Guardians Ad Litem— Appointment. § 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. § 5092. Service of Bill. § 8. Service upon a defendant shall be by giving him a printed copy of the bill, with a notice endorsed thereon in the f orhi 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. (Note. — By the Amendments, the form of notice is prescribed.) § 5093. Service on Husband and Wife, or Non-Resident De- fendants. § 9. In oases wliere husband and wife are defendants, service of a copy of the bill and notice to appear shall be made on each of them. Serv- ice on non-resident defendants shall be made in the mode prescribed by the acts of assembly relating thereto. § 5094. Service upon Corporation — When Commonwealth. Party. § 10. Service of the bill and notice to appear, on a corporation, shall be effected in tlie mode prescribed by law for the service of a writ of summons upon such corporation. Where the Commonwealth is a necessary party, service shall be made in the manner prescribed by the Act of 6th April, 1844. § 5095. Service upon !Non-Resident. § 11. Whenever the court shall make an order under the provisions of the Act of 6th April, 1859, for a service upon a non-resident defendant, with- out 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 case the form of subprnna RULES IX EQUITY. 33 shall be similar, in substance, 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. § 5096. Publication. § 13. "Whenever the court shall direct service by publication, under the provisions of the Act of 6tli A^jril, 1859, a copy of such order, together with a statement of the substance and object of the bill, petition or other pro- ceeding, 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 prob- able residence of the defendant, and affidavit filed stating all the knowledge- or information of the complainant or deponent in reference to such defend- ant's place of residence. , § 5097. Proceedings to be Docketed— Appearance— Decree Pro Confesso. § 13. Upon filing the bill the prothonotary shall enter the suit upon his docket as pending in 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 appearance of the defendant, either personally or by solicitor, 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. If tlie defend- ant shall not cause an appearance to be entered for him within the time limited for that 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 hereafter provided by § 29. RULE III. PLEADINGS GENERALLY. § 5098. Pleadings to be Printed except in Cases of Poverty — Copies to be Served. § 14. All bills, interrogatories, demurrers, pleas, answers to bills and to interrogatories, and amendments of pleadings, where such amendments exceed one hundred consecutive words, shall be printed on wliite sized paper of a convenient size. Amendments shall be printed on one side only of the paper. Each party appearing by separate counsel shall be entitled to ten copies of all such pleadings. The amount paid for printing shall be allowed as costs of the cause. This rule shall not apply where counsel shall certify that his client, by reason of poverty, is unable to pay for the same. In which case, instead of ten printed copies, each party shall be entitled to one fairly written copy of all pleadings, interrogatories, etc., and in such case any 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 3 34 EULBS IN EQUITV. payment by the other party. The prothonotary shall not permit any such unprinted pleadings to be filed, saving with such a certificate, and saving also bills for injunction, where counsel shall certify that there has not been time to print the same. And such injunction bills shall be withdrawn and deemed finally dismissed as of course, unless within twenty days after filing the same printed copies are filed and served. RULE IV. STPUCTUEE OF BILL. § 5099. Scandal or Impertinence not Permitted — Exceptions— Beferenee— Costs. § 15. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, docu- ments, contracts or other instruments, in hcec verba, or any other imperti- nent matter, or any scandalous matter not revelant to the suit. If it do, it may, on exceptions, be referred to a master by any judge in the court for impertinence or scandal, and if so found by him, the matter shall be ex- punged at the expense of the plaintiff, and he shall pay to the defendant aU his costs in the suit up to that time, unless the court or a law judge thereof shall otherwise order. If the master shall report that the biU is not scanda- lous or impertinent, the plaintiff 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. (Note. — By the Amendments, the office of master is abolished except in proceedings where decrees or interlocutory orders are to be executed, etc., etc.) § 5100. How Bill Framed. § 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 be as follows : In the (style of court). Sitting in equity. Between A. B., plaintiff, andO. D., defendant. To the Honorable the Judges of the said court. Your oi-ator complains and says, etc. § 5101. Bill to be Divided into Paragraphs— Prayer. § 17. The bill shall be divided into paragraphs consecutively numbered, and shall contain a succinct statement of the facts upon which the plaintiff asks relief, and, at his option, the facts whicli are intended to avoid an anticipated defense, and 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 numbered. The combination clause, the interrogatories, and the alb- gation of want of remedy at law and similar formal averments, shall be .omitted. RULES IN EQUITY. 35 RULE V. PARTIES. 'f 5102. When Defendant need not Appear and Answer. § 18. Where no account, payment, conveyance or other direct relief is sought against a party to a suit not being an infant, the party, upon service of the notice upon him, need not ajspear and answer the bill, unless the plaintiff especially requires him so to do, by the prayer of his bill ; but he may apjiear and answer at his option ; and if he does not appear and answer, he sliall be bound by all the 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. g 5103. Infants and Parties not Sui Juris. § 19. Where infants or persons not SMijitris are parties, the fact shall be specially stated in the bill, so that the court, before or after the service of process, may make order thereon as justice may require. § 5104. Persons Outside the Jurisdiction. § 20. Where persons without the jurisdiction are proper or necessary parties, this fact shall 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. § 5105. When Parties need not be Joined. § 21 . In all oases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit, cannot be 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, prceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties. g 5106. When Parties TiTumerous. ^ 22. Where the parties on either side are very numerous, and cannot -without manifest inconvenience 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 proceed in the suit, having sufficient parties before it to represent all the adverse interest of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prej- udice to the rights and claims of all the absent parties. § 5107. Trustees— Cestuis que Trustent— When Parties. § 33. In all suits concerning real estate which is vested in trustees, and 36 KULES IN EQ0ITT. such trustees are competent to sell and give discharges for the proceeds 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 to make the persons beneficially interested in such real estate or rents and profits parties to the suit, but the court may, upon consideration of the matter on the hearing, if they shaU so think fit, ■ order such persons to be made parties. § 5108. Suits to Execute Trusts of Will— Heirs-at-Law as Par- ties. § 34. 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 Uberty to make the heirs-at-law a party, where he desires to have the will established against them. § 5109. Where Defendants Liable Jointly and Severally. § 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 neces- sary 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 pro- ceed by a bill in the nature 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 orig- inal cause shall, after the service of such cross-biU, 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 . § 5110. Where Objection to Suit for Want of Parties is Made for First Time at Hearing. § 26. If a defendant shall, at the hearing of a case, object that a suit is defective for want of parties not having by plea or answer taken the objection, 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 parties. § 5111. Objection by Answer to Bill, for Want of Parties, to be set down for Argument. § 27. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within four- teen 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 KULES IN EQUITY. 37 or to the effect following, that is to say : " Set down upon the defendant's objection for want of parties." And where the plaintiff shall not set down his cause, but shall proceed therewith to a hearing, notwithstanding an ob- jection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shtdi then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it think fit, shall be at liberty to dismiss the bill. § 5112. Dismissal of Suit by Agreement. § 28. The parties to a suit may at any time before decree, by agreement in writing, without 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. EXILE VI. PLEAS, DEMUREEES AND DECREES PRO CONPESSO. § 5113. Rule to Answer — Decree Pro Confesso— Attachment. § 29. The plaintiff shall be entitled, immediately after the defendant's appearance is entered, to a rule on defendant to be entered of course in the prothonotary's office, to file the (plea) demurrer or answer to the biU within thirty days after service of notice of such rule ; in default of com- pliance 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, and the matter of the bill 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 an- swer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged 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 plaintiff wlien such rule to (plead) answer or demur 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. {Note. — By the Amendments, all defenses must now be by "answerer demurrer. " ' ' All issues of fact must be made by answer. ' ' The separate rule to answer, etc. , in thirty days has been abolished. The notice endorsed upon the bill requires the appearance to be entered and answer filed within fifteen days after service.) 38 EXILES IN EQUITY. § 5114. When Decree' Pro Confesso to be Deemed Absolute. § 30. When the bill is taken pro confesso, and the court shall have pro- ceeded to a decree as aforesaid, such decree so rendered shall be deemed absolute, unless the court or a law judge thereof shall, within fourteen days after service of notice of such decree on the defendant, set aside the same and give the defendant time for fihng an answer upon cause shown. And no such motion shall be granted, unless the defendant shall undertake 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. § 5115. Answers and Deniiirrers. § 31. The defendant may, at any time before the bill is taken for con- fessed, or afterwards with the leave of the court, demur (or ple5,d) to the whole biU 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.) {Note. — By the Amendments, pleas are abolished.) § 5116. Afildavit to Demurrer. § 32. No demurrer (or plea) shall be allowed to be filed to any bill, un- less supported by affidavit that it is not interposed for delay : (and if a plea, that it is true in point of fact.) Demurrers shall be substantially in the form following ; "The defendant demurs to the whole bill. " " or to so much of the bill, or discovery or relief," stating the particulars and assigning the reasons or grounds in detail. (Note.— By the Amendments, pleas are abolished.) § 5117. Demurrer to be Argued. § 83. The plaintiff may set down the demurrer (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.) (Note.—Bj the Amendments, pleas are abolished.) § 5118. Defendant can set down Demurrer upon Notice. § 34. If the plaintiff shall (not reply to any plea, or) set down any (plea or) demurrer for argument within ten days after service of the same, the defendant may set it down for argument on five days' notice. (iVofe.— By the Amendments, pleas are abolished.) ETTLES IN EQUITY. 39 § 5119. When Demurrer Not to be Overruled. § 35. 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.) {Note. — By the Amendments, pleas are abolished.) § 5120. Amendment to Bill. § 36. If, upon the hearing, any demurrer (or plea) shaU be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. (Note.—liY the Amendments, pleas are abolished.) § 5121. When Defendant to Answer, after Demurrer Over- ruled. § 37. If, upon the hearing, any demurrer (or plea) is overruled, unless the court shall be satisfied that it was intended for vexation and delay, the defendant shall be assigned to answer the biU, 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 judgment 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. (Note. — By the Amendments, pleas are abolished.) RULE VII. ANSWERS AND CROSS-BILLS. § 5122. Frame of Answer. § 38. The defendant shall make answer to all the material allegations of the biU. The answer of a defendant must be in the first person, and divided into paragraphs, numbei-ed consecutively, each paragraph contain- ing, 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 or discovery. And the defendant shall be entitled in all cases, by answer, to insist upon all mat- ters of defense in lAw (not being matters of abatement, or to the character 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 40 BULES IN EQUITY. 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, touching the matters set forth in the bill to avoid or repel the bar, or defense.) (Thus, for ex- ample, a bona fide purchaser, for a valuable consideration, without notice, may set up the defense, 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.) (pfote. — By the Amendments, pleas are abolished.) § 5123. Interrogatories to be Piled Separate from Bill— May- be Filed by Defendant— Answers. § 39. Specific interrogatories to defendants shall not be included in the bill, but may be filed separately. In like manner, any defendant shall be entitled to file interrogatories to any of the plaintiffs after he shall 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 t'lie answers, part of the pleadings. By special order on notice, they may be filed after testimony has been taken, and answers required at such time as the court or a law judge may order. They shall be divided as conveni- ently as may be and numbered. Where there is more than one defendant or plaintifll, the particular interrogatories 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. § 5124. When Interrogatories need not be Answered— Excep- tions to Answers. § 40. A plaintiff or defendant shall be at liberty to decline answering any interrogatory, or part of an interrogatory, when he might have protected himself by demurrer from answering the subject-matter of the interroga- tory ; 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 plaintiff 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 tlie answer for insufficiency. But where the interrogatories 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 inter- rogatories 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 exceptions to the answers. EULES IN EQUITY. 41 § 5125. Cross-Bills— Service. § 41. Cross-bills for discovery only shall not be allowed, but the defend- ant shall be at liberty, instead thereof, to file interrogatories to the plaintiff as above px-ovided. In other cross-bills no other reference shall be made to the matters contained in the original bill than sliall be necessary, but the same may be treated as if incorporated therein. The rules regulating the form of bills shall apply to cross-bills. If no new parties are introduced, service of a copy of the cross-bill on the counsel of the plaintiff in the orig- inal bill shall be sufficient. "Where other persons are made parties, the service shall be in the manner provided in oiiginal biUs, 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 answer to the original bill as required for the plaintiff. § 5126. Before whom Ans'wer and Aflfidavits may be Sworn to. § 43. Answere and affidavits may be sworn to before any person author- ized to administer oaths under the laws or usages of this Commonwealth, or of any other State, territory or country where the oath is taken. RULE VIII. EXCEPTIONS TO ANSWEES. § 5127. Exceptions to be Filed in Twenty Days. § 43. After answers are filed to the interrogatories, the plaintiff shall be allowed twenty days from the service of a copy of such answers on the plaintiff's counsel, to file in the prothonotary's office exceptions thereto, and no longer, unless a longer time shall bo 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. § 5128. Exceptions to be Printed— Argument. g 44. Where an exception shall be filed to the answer to any interroga- tory for insufficiency, within the period prescribed by these rules, if the de- fendant shall not submit to the same, and file an amended answer within ten days from service of a copy of sucli exception on the uefL-ndant'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 hear- ing, the exception shall be deemed abandoned, and the answer shall be deemed sufficient : Provided, however, that the court or any law judge thereof may, for good cause shown, enlarge the time for flUng an exception -or for filing an amended answer in their or his discretion, upon such terms 42 UTILES IN EQUITY. as they or he may deem reasonable. Exceptions shall be printed, and the^ expense of printing such as are sustained shall be allowed as costs, to be- immediately recovered. § 5129. If Exceptions Allowed, Defendant to Answer fully — Attachment. § 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 inter- rogatory, within ten days, unless the time be enlarged by oi-der of the court, otherwise the plaintiff shall of course be entitled to take the bOl, 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 order of the court or of a law judge thereof, upon his putting ia such answer and complying with such other terms as the court or judge may direct. § 5130. Scandal and Impertinence— Exceptions — Argument. §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 exceptions shall be filed within ten days after the service of the same upon the party excepting or his counsel, and such exceptions may be set down for hearing by either party on forty-eight hours' notice, or such other notice as the court may direct- to the opposite party. (xVofe. — By f.i.j An-ic:id:nents, the ofSce of master is abolished, except in proceedings where decrees or interlocutory orders are to be executed, etc.) RULE IX. KEPLICATION. § 5131. Time for Filing— Failure to Eeply— Form of Replica- tion. § 47. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff sliall file the general rephcation thereto within ten days thereafter, unless he shall set the cause down on bill and answer ; and in all cases where the general replication 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, tlie defendant shall be entitled to a rule upon him to reply within ten days after notice of such rule ; on failure to file such replication with notice to the defendant's counsel, the plaintiff shall be deemed to have abandoned his right to tra- RULES IN EQUITY. 43 verse the matters alleged in the answer. The replication shall be in sub- , stance thus : " The plaintiff joins issue on the matters alleged in the answer." § 5132. Special Replication not Allowed. § 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. RULE X. AMENDMENTS, SUPPLEMENTAL BILLS, ETC. § 5133. Amendment to Bill before Answer— Wotice. § 49. Tlie plaintiff shall be at liberty, as a 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 defendant notice of such amendment, and all rules taken by the plaintiff in the case shall be sus- pended untU such notice is given. (Note. — By the Amendments, pleas are abolished.) § 5134. Amendment to Bill after Answer— After Keplieation. § 50. After an answer, (or plea.) or demun-er is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain 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 permitted to withdraw it and to amend his bill, 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 tiie same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence Iiave been sooner introduced into the bill, and upon the plaintifii's submitting to such other terms as may be imposed by the judge for speeding tlie cause. (Note. — By the Amendments, ideas ;-re abolished.) § 5135. Filing Amendment— Service. § 51. If the plaintiff, so obtaining any order to amend his bill after answer, (or plea,) or demurrer, or after replication, shall not file his amend- ments or amended bill, as the case may require, 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 considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. {Note. — By the Amendments, pleas are abolished.) 44 RULES nST EQUiTV. § 5136. Denmrrer or Answer to Amended Bill. § 53. In every case where, after answers 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 answers had been filed, and the answer to the original bill shall not, unless the defendant fails to put in another answer when required, be used except as an admission of the facts therein stated, subject to explanation by the answer subsequently 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 i-espects subject to the rules regulating answers to the original bill. (Note. — By the Amendments, pleas are abolished.) § 5137. Amendment to Answer. § 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 resworn, at any time before replication is put in, or the cause is set down for a hearing iipon bill and answer. But after replication or such setting down for a liearing, it shall not be amended in any material matters, as bj' adding new facts o.' defenses, or qualifying or altering the original statements, except byspetdal 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 tlie judge grant- ing the same may, in his discretion, require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguishable tlierefrom. § 5138. Amendments take the Place of Bill of Revivor and Supplemental Bill. § 54. Whenever the circumstances are such as to require a bill of re- vivor, supplemental bill, or bill in the nature of either or both, or where additional or different parties are required to be joined, the same shall be made by way of amendment 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 amendment shall be served as is provided for in the case of original bills. But, where the personal representative of a deceased party is properly required to be joined, it may be done by stating on the record the fact of the death, and the grant of letters to such repre- sentative, and by service of notice of such statement on such representa- tive ; and the cause, without more delay, shall proceed as if such represent- .ative had been originally a party, allowing him ten days to appear. EULES IX EQUITY. 45 RULE XL EVIDENCE. § 5139. Depositions — Commissions. g 55. An order to take the testimony of ancient, infirm and going witnesses de bene esse before any alderman or justice of the peace of the respective county, or other person therein authorized bylaw to take deposi- tions in other cases, may be entered by either party in the prothonotary's ofBce of course, at any time after the service of process stipulating a rea- sonable notice to the adverse 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 an}' other State or territory, or to foreign parts. But in case of a commission, 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 commissioners 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 sliall only be allowed to be read in evidence on the hearing of tlie cause, in case the same facts shall appear before the examiner appointed to take testimony in tlie cause after it is at issue, and be certified by him to excuse the production of such wit- nesses before him as are necessary for the introduction of depositions taken de bene esse on trials by jury in the same courts, or if taken by the commis- sioner before the cause is at issue, under this rule, it shall appear by affi- davit 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. (Note. — B}- the Amendments, the office of examiner is abolished, and all testimony in cases in equity shall be taken in the same manner as is now practiced in courts of law upon rule, commission, letters rogatory or in open court.') § 5140. Return of Commission— Exceptions. § 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 coui-t, in term time or vacation, or by the protiionotary ; and the prothon- otary shall give notice to the jiarties of the return of any commission, and of the filing of depositions taken before anj- alderman, justice of the peace or examiner, and the parties shall, witliin ten days after service of such notice upon them, respectively enter exceptions in writing, if they have any, to the form of the interrogatories or tlie manner of the execution of the commission, and the taking of the depositions, or be forever precluded fi-om the benefit of such exceptions, which exceptions when so taken may be put down for hearing by either party giving forty-eight hours' notice to his adversary thereof, or such other notice as the court may direct. (Note. — By the Amendments, the office of examiner is abolished.) 46 RCLES IN EQUITT. §5141. Form of Last Interrogatory. § 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 advantage 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.'' § 5142. When Witnesses may be Heard in Court upon Inter- locutory Application. § 58. On all interlocutory applications, as for an injunction, or the appointment of a receiver, either party shall )■ e at liberty to produce his witnesses for examination in open court at the aearing of the application, as to all such matters as could be proved by their affidavits, subject to cross-examination as in other cases, or, upon reasonable notice, to require the other party to produce his witnesses for examination in open com-t, unless sufficient cause be shown to the contrary. {Note. — This rule was suspended until further orders by the Supreme -Court, 29th June, 1866, reserving to the judge the right to enforce the same at his discretion.) (Note. — By the Amendments, save on an application for an ex XMrte injunction, witnesses may be examined orally before the judge or testimony -taken on short rule.) § 5143. Examiners— Duties. § 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 I'easonable day or days, to be appointed by him, of which he shall give notice to the parties : for the enforcing the attendance of which witnesses, either party may have sub- poena or subpoenas, returnable before such examiner, to be enfoi'ced 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 writing 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 examiner, and the defendant shall not be compelled to proceed with the taking of his testi- mony, untill the plaintiff has finished, or declared he has none to take, nor shall the plaintiff be compelled to proceed with the rebutting testimony until the defendant has completed the testimony on his part ; but the court maj', upon the special application of either party, upon cause shown, appoint an additional examiner before whom the party making such application may proceed to take his testimony, notwithstanding the pendency of the proceeding of his adversary before the examiner first named. {Note. — By the Amendments, the office of examiner is abolished except where proceedings are conducted under a statute imposing duties upon an -examiner.) ETJLES IN EQUITY. 47 g 5144. When Party Examined may Affirm— Depositions to be in First Person in Paragraphs. § 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 lieu thereof make solemn affirmation to the truth of the facts stated by him. All affidavits and depositions 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. § 5145. Rule to Close Taking of Testimony. § 61. Either 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 tliirty days' notice of such rule shall not be read in evidence at tlie hearing of the cause. But it shall be in the discre- tion 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 he entered against a party while, by the provisions of the 59tli section, such party is not bound to begin until his adversary has closed. (Note. — The Amendments abolish the office of " examiner to take testi- mony" except where proceedings are conducted under a statute imposing ■duties upon an examiner.) RULE XII. MASTERS. § 5146. Court may Appoint Masters— Compensation. § 62. The courts may appoint standing masters in chancery in their respective jurisdictions, and they may also appoint a master 23ro hcec ince, in any particular case. The compensation to be allowed to every master in chancery for his services in any particular cause shall be fixed by the court in its discretion, having regard to all the circumstances thereof ; and the compensation shall 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 compensation : 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. (Note. — The Amendments discontinue the office of master except in certain cases. This section, in so far as it permits an attachment to enforce paymentof masters' fees, in a suit founded upon a contract, is void ; Pierce's Appeal, 103 Pa. St., 37 (1883), but such provision is valid in suits founded upon a tort or breach of duty by a trustee. Church's Appeal, 103 Pa. St., 263 (1883).) § 5147. Master to be Wotifled of Appointment. § 63. Whenever any reference of any matter is made to a master to 48 BULES IK EQUITY. examine and report thereon, the party at whose instance or for whose ben- efit the reference is made, shall cause the same to be presented to the master for a hearing witliin 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. {Note. — The Amendments discontinue the office of master except in cer- tain cases.) § 5148. Master to Give Notice— Duties. § 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 their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at Uberty to proceed ex parte, or in his discretion to adjourn the examination and pro- ceedings 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 reasonable diligence in every such reference, and with the least practi- cable 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. (Note. — The Amendments discontinue the oiHce of master except in cer- tain cases.) § 5149. Proceedings before the Master.' § 65. The master shall regulate all the proceedings in every hearing before him, upon every such reference ; and he shall have full authority to examine the parties in tlie cause, upon oath, touching all matters contained in the reference ; and also to require the production of all books, papers, writings, vouchers, and all other documents appUcable thereto, where, by the principles of courts of chancery, the production of them may be com- pelled, and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate by the prothon- otary ; and also to direct the mode in wliich the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries 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. (iVoie.— The Amendments discontinue the ofiice of master except in cer- tain oases.) g 5150. Accounting before Master. § 66. All parties accounting before a master shall bring in their re- RULES IN EQUITY. 49 spective accounts in the form of debtor and creditor, and any of tiie 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 interrogatories before the master, or by deposition, as the master shall direct. {Note. — The Amendments discontinue the office of master except in cer- tain cases. — Also, by the Amendments, in cases involving complicated accounts, if the parties do not refer, the court may call in the aid of an accountant.) § 5151. How Master to Examine "Witnesses. § 67. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to reqmre. 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 requires it, in order that the same may be used by the court, if necessary. {Note. — The Amendments discontinue the office of master except in certain cases.) § 5152. Aflldavits, Depositions, Documents Previously Used in Court may be Offered before Master. § 68. All affidavits, depositions and documents which have been pre- viously made, read, or used in the court, upon any proceeding in any cause or matter, may be used before the master. {Note. — The Amendments discontinue the office of master except in certain cases.) § 5153. Master's Report— Piling — Notice— Exceptions— Argu- ment. § 69. No exception will be received to the report of any master, unless the party excepting has filed the same with the master, by whom the report has been made, whose duty it shall be, on such exception being filed, to re-examine the subject and amend his report, if in his opinion such excep- tions are in whole or in part well founded. And in order to give all parties in interest an opportunity of entering such exceptions, 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 given them an opportunity of liaving 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 com- mitting the report again, should justice 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 Ust, provided that at least four days shall inter- 4 60 RULES IN EQUITY. yene ; but if no exceptiona 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. {Note. — The Amendments discontinue the ofiice of master except where decrees or interlocutory orders are to be executed or their execution super- vised by an oiScer of the court.) RULE XIII. INTERLOCUTORY ORDERS, GENERALLY. § 5154. Judge may make Interlocutory Orders in Vacation or Term, and at Chambers as in Court. § 70. Any judge of the supreme court (or 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 .same manner and with the same effect as the court could make and direct the same in term, reasonable 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 tliereafter as shall be assigned by the judge for the hearing thereof. § 5155. Motions, Rules and Orders to be Filed — Notice Given. § 71. All motions, rules, orders and other proceedings made and directed at chambers or at the prothonotaiy'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 solicitors 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 ofHce, 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. § 5156. Motions which are of Course. § 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 oonfesso ; for filing exceptions, and for other proceedings which do not by the rules hereafter prescribed require any allowance 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. (Note. — By the Amendments, pleas are abolished.) RULES IN" EQUITY. 51 § 5157. Allowance of Motions not of Course. § 73. All motions for rules or orders, and other proceedings which are not grantable of course, or without notice, shall be made on application to the coiu-t 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 tune of the making the application ; and if the ad- verse 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 objected to, or refused, in his discretion. § 5158. Extension of Time — Notice Required— Order. § 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 op- posite party ; and any order which does not recite such notice, or that the counsel attended at the hearing, may be disregarded. § 5159. Cautionary Orders Abolished — Ex Parte Injunction^ When Dissolved. § 7.5. 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 without 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. (Note. — By the Amendments, " preliminary injunctions maybe granted, in accordance with the present practice on bill and injunction affidavits, biit upon the hearing at the end of four days, or such other time as may be fixed, the evidence must be taken subject to cross-examination, and ex parte affidavits will not be received.") g 5160. Rules and Orders Expiring in Vacation in Philadelphia, g 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. § 5161. Costs on Interlocutory Proceedings— How Enforced. g 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 recovery 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. (ISfote This section, in so far as it permits an attachment to enforce payment of costs in a suit founded upon a contract, is void. Pierce's Appeal, 52 BULBS IN EQUITY. 103 Pa. St., 27 (1883). But such provision is valid in suits founded upon a tort or breach of duty by a trustee. ChurcVs Appeal, 108 Pa. St. , 363 (1883).) RULE XIV. DECREES AND FINAX. PROCESS. § 5162. Form of Decree or Order. § 78. In drawing up decrees and orders, neither the biU 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.) § 5163. Decree to be Drawn— Submitted to the Other Side- Exceptions. § 79. The decree shall be drawn by the solicitor of the party in whose favor it is, who 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 comformity with the intentions of the court, he may file excep- tions thereto before the day of hearing designated in such notice, which shall be submitted with the draft of the decree on the day so appointed, and thereupon, the court approving of the draft, or correcting the same in con- formity with such exceptions, or otherwise, the prothonotary shall enter it in his equity docket, and from thenceforth it shall become the act and de- cree o£ the court. § 5164. Minute of Decree— Indexing. § 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 mmute 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 judgment index of the common-law side of the court. § 5165. How Obedience to Decree Compelled — Attachment — Sequestration— Writ of Assistance must be Al- lowed on Motion. § 81. Unless otherwise provided by law or by these rules, or specially RULES IN JEQXJITY. 63 ordered by the court, a writ of attachment, and if the defendant cannot be found, or it may otherwise be 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 decreee of the court ; but the same shall not be issued, unless upon motion and allowance by the court or a law judge thereof. § 5166. Writ of Assistance— To be Allowed wlieii Decree is for Delivery of Possession. § 83. 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 judge, for an order for a writ of assistance, upon the al- lowance of which the prothonotary shall immediately issue the same. § 5167. Final Process to Execute Decree— A ttachmenl^Se- questration. § 83. Final process to execute any decree 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 delivering 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 futher service, to talie notice ; and upon afiidavit 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 vacation, may direct the issuing of a writ of attach- ment against the delinquent party, from which, if attached thereon, he shall not be discharged unless upon a fuU 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 inventus, to compel obedience to the decree. § 5168. A Person Wot a Party who Obtains Order shall be entitled to Enforce Obedience to it. 8 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 same process as if he were a party to the cause ; and every person not being a party to the cause, against whom obedience to an order of the court may be enforced, shall be hable to the same process for enforcing obedience to such order as if he were a party in the cause. 64 EULBS IN EQUITY. § 5169. Correction of Clerical Mistakes in Decrees and Orders. § 85. Clerical mistakes in decrees or decretal orders, or error arising^ from any accidental slip or omission, may be corrected by order of the court or a law judge thereof, upon petition, without the form or expense of a rehearing. RULE XV. BBHEABING. §5170. Petition for Rehearing — Affidavit thereto — When Granted— Eflect. § 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. A rehearing may be granted at any time within the discretion of the court ; but where the de- cree has been executed, parties who have acted on the faith of such decree shall not be prejudiced by such decree being reversed or varied. RULE XVI. GENERAL PROVISIONS. § 5171. Courts of Common Pleas may make Further Rules not Inconsistent ■with these Rules. § 87. The courts may make any other and further rules and regulations for the practice, proceedings and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discre- tion, and from time to time alter and amend the same. § 5172. Practice of High Court of Chancery in England to be Applied when Practicable. § 88. In all csises when these rules or those prescribed by the other courts do not apply, the practice of the courts shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local convenience of the district where the court is held, not as positive riiles, but as furnishing just analogies to regulate the practice. AMENDMENTS TO THE EQUITY RULES. January 16th, A. D. ISO-i, it is ordered that the Equity- Rules formulated and adopted May 27, 1865, under the au- RULES IN EQUITY. 55 thority of the Act of June 16, 1836, to regulate the practice in the several courts of common pleas in this Common- wealth in proceedings in equity, be amended in the manner herein below set forth ; and that such rules, or parts thereof, heretofore in force, as may be inconsistent with these amend- ments, be rescinded hereby from and after the date on which these amendments take effect. (These rules were ordered to take effect March 5, 1894, and may be found in 159 Pa. St.) PLEADINGS. § 5173. All Defenses to be made by Answer or Demurrer. All defenses, in equity cases, shall be made by answer or by demurrer.. All issues of fact must be made by answer. EDIVENCE. § 5174. OfB.ee of Exam.iner Abolished except in Certain Cases. The office of " exarainer to take testimony" is hereby discontinued, except in proceedings conducted under the directions of a statute by which duties are imposed upon an examiner, as in bills to perpetuate testimony, and similar cases. All testimony in cases in equity shall be taken in the same manner as is now practiced in courts of law ; upon rule, commission, letters rogatorj'. or in open court. Rules may be entered for the purpose of taking testimony on the equity side of the several courts of common pleas, in the same manner, and with the same effect, as upon the common-law side of the same courts. HEARING. § 5175. To be before a Judge— OfH.ce of Master Abolished ex- cept in Certain Cases— Equity Trial List— Proceed- ings upon Hearing. The hearing of cases in equity shall be conducted before the judge sitting as chancellor, or before a referee, and the office of master in chan- cery is hereby discontinued, except in proceedings where decrees or inter- locutory orders are to be executed, or their execution supervised by an officer of the court ; as in partition, the sale of real estate, the execution of deeds, and the like. "When a case in equity is at issue upon demurrer it shall be placed on the argument list then next to be heard. "Wlien it is at issue upon answer it shall be placed on the equity trial list. Cases upon the trial list shall be heard in court in the same manner that actions at law wherein trial by jury has been waived are now heard by courts of law. The evidence shall be given or read in open court, and exceptions to the admission or rejection of evidence, and of witnesses, may be taken in the 56 EULES IN EQUITY. same manner, and with the same efEect, as is now practiced in the trial of actions at law. The judge shall sit continuously during the trial of causes in equity in the same mannner as during the trial of actions at law. FINDINGS. § 5176. Requests for bindings — Ans'wers thereto — Filing, etc. The counsel for the respective parties may present to the judge sitting as chancellor, requests for findings both of fact and law. After hearing the evidence, and the suggestions or argument of counsel, the judge may adopt or affirm these requests, or any of them, he may qualify or deny them, or he may state liis findings of fact or of law in his own language. The requests so presented, with the answers thereto, and the findings of the judge, both of law and fact, shall be filed by the prothonotary, and become thei'eby part of the record of tiie court in the said case. REFEREES. § 5177. When Case can be Referred — Proceedings— Duties of Referee — Exceptions — Argument. When a case in equity is at issue upon answer it may be taken from the list by the parties, and its trial referred to a person agreed upon by them, who shall be called a " referee." Heshall proceed at once upon his appoint- ment to fix a day for trial, which shall not be more than three months after his said appointment ; at which time, unless the cause be continued, he shall proceed to hear the parties, and sit from day to day, continuously, for that purpose. He shall hear the testimony, seal bills of exceptions to the admission and rejection of evidence, make findings of fact and of law, act upon the points or requests that may be presented by counsel, and prepare the form for a final decree. "When his findings and decrees are ready, he shall give notice to counsel for the respective parties, of a time and place, when and where the same may be examined by tliem. If no excep- tions be filed within ten days after the day fixed for such examination, the referee shall deliver to the prothonotary his findings, the requests of counsel, and the form of decree prepared, who shall file the same, and thereupon the court shall enter the decree prepared by the referee. If exceptions be filed the referee shall hi^ar them within ten days thereafter ; and within ten days after such hearing, decide upon the same and file said exceptions, his action thereon, together with his original findings, the requests of counsel, and the form of a decree v,-ith the prothonotary of the court. At any time within ton days after this is done exceptions may be taken to the action of tlie referee and filed with the prothonotary. The case shall thereupon be placed upon the equity argument list next to be heard in said court, and the exceptions heard by the court or judge acting as chancellor in the case, and disposed of ; wliereupon the proper decree shall be made and entered, subject to the right of appeal to the Supreme Court, as provided by law. RULES IN EQUITY. 57 ACCOUNTS. § 5178. When Cause not Referred, Court may Secure Assist- ance of Accountant — Costs. In cases involving complicated accounts, or questions requiring the aid of experts, if the parties do not refer, the court may call in the aid of an accountant or other expert, as an assessor. The charges to be allowed for such services shall not exceed the rate per diem commonly paid by business men for similar services, and shall be taxed as costs in the case, or paid as the court may direct. TRIAL. § 5179. How Proceedings Conducted. A trial in equity shall be conducted, as near as may be, as a trial at law is now conducted. When entered upon it shall not be interrupted or post- poned, except for cause shown to, and approved by, the court or referee ; and the costs of all such postponements shall be paid by the party at whose instance the same ma)' be ordered, and shall not abide the result, or be taxed in the general bill of the successful party. Continuances for cause may be made where the list is called, with or without terms, as is now practiced in the courts of common law. TRIAL BY JURY. § 5180. Practice. After a case in equity is at issue upon questions of fact, either party may move a rule upon the other party to show cause, on five days' notice, why the issues of fact, or some of them, shall not be tried before a jury. If, on the return of the rule, such trial be awarded, the court shall frame the issues in the form of separate questions. The verdict renderedshall not be general, but shall consist of an answer to each question so submitted. These answers, made to inform the conscience of the chancellor, shall not be binding upon him in any case. TRIAL AND ARGUMENT LISTS. § 5181. Lists Regulated by Orders. The preparation of trial and argument lists shall be regulated by an order of the several courts, so as to make the practice in regard thereto comform as nearly as may be practicable to the practice in the said courts in actions at law. INJUNCTION CASES. § 5182. Witnesses Examined Viva Voce— Proceedings. Preliminary injunctions may be granted, in accordance with the present practice, on bill and injunction affidavits ; but upon the hearing, at the end of four days, or such other time as may be fixed, the evidence must be taken subject to cross-examination, and ex parte affidavits will not be 58 KXJLES IN EQUITY. received. Witnesses may be examined orally before the judge, or testimony may be taken on short rule, or, when necessary, testimony may be taken before any person authorized to administer an oath, on notice to the other side to appear and cross-examine. In cases when testimony is taken on notice alone, the certificate of counsel that he had not sufficient time to enter and serve a rule shall stand in lieu of such formal entry and service. FEES. ^ 5183. The Compensation of Referees. The fees of referees shall be adjusted upon a statement of the number of days actually occupied with the trial and the preparation of the findings and decree. Parts of days on which the parties met and adjourned shall not be included. For days actually spent in the trial and disposition of the case a, per diem shall be allowed, fixed by the court in which the cause is pending, upon consideration of the character of the labor actually performed, but in no case to exceed twenty dollars per day. The referee shall state separately the number of days occupied in the trial, and those occupied in preparing the findings and decree. For parts of days on which meetings and adjournments have taken place the referee shall be allowed five dollars each, to be paid by the party at whose instance the adjournment may be made, and not otherwise. APPEALS. § 5184. Appellant shall File a Brief Statement of Errors. Whenever an appeal shall be taken from an order or decree in equity the appellant shall file in the court below, with his notice of appeal, a brief statement of the errors he alleges to have been made by the order or decree appealed from or the findings on which it rests. No other errors shall be assigned in the Supreme Court unless leave be granted on motion, and notice to the other party. If the reasons for the appeal do not affect the whole decree, and its enforcement, as to so much as is not complained of, is not inconsistent with the relief asked on appeal, leave will be granted to proceed as to that part of the decree, notwithstanding the appeal. STENOGRAPHERS. § 5185. Testimony to be Taken Stenographically. The evidence on the trial of cases in equity may be taken by stenogra- phers in the same manner and under the same rules as to noting exceptions and filing the notes of the trial as are in force on the law side of the several courts. APPEARANCE AND ANSWERS. § 5186. Form of Order to Appear and Answer within Fifteen Days. Unless otherwise provided by law, the defendant or defendants shall be required, in the first instance, to appear and answer the exigency of the EULES IN EQUITY. 59 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 : You are hereby notified and required to cause an appearance to be entered for you in the within named court and file your answer to the within bill of complaint within fifteen days after the service hereof on you, and to observe what the said court shaU direct. You are also notified that if you fail to enter your appearance and file your answer within fifteen days, you wiU be hable to have the bill taken pro confesso, and a decree made against you in your absence. (Here insert date of notice.) Solicitor for Plaintiff. In cases in which the defendant cannot prepare his answer within fifteen days, the court may, on motion with notice, extend the time for answer, not exceeding thirty days additional. It is further ordered that these Amendments shall take effect on the first Monday of March next, and be applicable to all cases in equity put at issue either on answer or demurrer on or after that day. § 5187. Rules to have the Force of a Statute. In connection with the Amendments to the Equity Rules it may be well to consider the opinion of Mr. Justice Teunkey in Gibbon's Appeal, 104 Pa. St., 587 (1884), in which he said, speaking of the Eqtiity Eules : ' ' These rules cannot be suspended by the Court of Common Pleas, nor can that court adopt others inconsistent therewith." In C'% V. McJiaaes, 4S Leg. Int., lUO (ISSS) (C. P. No. 1 of Phila. Co.), Judge Allisox said : " These Rules, having been established by the Supreme Court under the authority of an act of the Legislature, have for us the same effect as if they had been embodied in the form of positive law, and oblige us to conform to their requirements. It is of com- paratively little importance what practice may have pre- vailed in England or in * * * our own State prior to the making of these rules. They are established to regulate equity proceedings in Pennsylvania. By the terms of the statute we are required to make our practice conform to their directions. These rules are a law unto the court * * * we have but the one thing to do— to see to it that they shall be properly observed." In Cassidyr. Knapp, 36 W. N., 197(1895), it was decided that the recent Amendments have the force and effect of an Act of Assembly. 60 KtTLBS IN EQUITY. RULES OF PRACTICE FOB THE GOUETS OF EQUITY OF THE UNITED STATES, PROMULGATED BY THE SUPREME COURT OF THE UNITED STATES. PRELIMINARY REGULATIONS. § 5188. Circuit Courts of the United States as Courts of Equity to be Open. 1. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings ; for issuing and returning mesne and final process and commissions ; and for making and directing all interlocutory motions, orders, rules and other proceediows- preparatory to hearing of aU causes upon the merits. § 5189. Clerk's Oface to be Open. 2. The clerk's office shall be open, and the clerk shaU be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders and 0%er proceedings, which are grantable of course and applied for, or had by the parties, or their solicitors, in all causes pending in equity, in pursu- ance of the rules hereby prescribed. § 5190. Orders and Rules in Vacation— Notice. Any judge of the Circuit Court, as well in vacation as in term, may at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules and other proceedings, preparatory to the hear- ing of all causes upon their merits, in the same manner and with the same effect as the Circuit Court could make and direct the same in term, reason- able notice of the aj^plication therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary, at the next rule- day thereafter, unless some other time is assigned by the judge for the hearing. RULES l^r EQUITY. 61 5191. Motions, Rules, etc., to be Entered in Order-book- Notice. All motions, rules, orders and other proceedings, made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when tliey are made and directed ; which book shall be open at all office hours to the free inspection of the parties in any suit in equity and their soUoitors. And, except in cases wliere personal or other notice is specially required or directed, such entry in the order-book shall be deemed sufScient notice to tlie jsarties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other pro- ceedings entered in such order-book, toucliing any and all the matters in the suits to and in which they are parties and solicitors. And notice to th& solicitors shall be deemed notice to the parties for %vhom they appear and whom they represent, in all cases where personal notice on tlie parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the Circuit Court may, by rule, abridge the time for notice of rules, orders or other proceedings not requiring personal service on the parties, in their discre- tion. § 5192. Motions for Process — Amendments— Decree Pro Con- fesso— Grantable of Course. 5. All motions and applications in the clerk's office for the issuing of mesne process and final process 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 otlier proceedings in the clerk's office which do not, by the rules hereinafter prescribed, require any allow.ince or order of the court- or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of tlie court. But the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown. § 5193. When Motions Heard by Court. 6. All motions for rules or orders, and other proceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or Iiis solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex iKirte, and granted, as if not objected to, or refused, in his discretion. '62 RULES IN EQUITY. PROCESS. § 5194. Subpoena— Attachment— Sequ3stration— Writ of Assist- ance. 7. The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill ; and, unless otherwise provided in these rules, or specially ordered by the Circuit Court, a writ of attachment, and if the defendant cannot be found, a writ of sequestration, or a writ of assist- ance 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. § 5195. Writs of Execution— Attachment for Contempt of De- cree— Sequestration. 8. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the Cir- cuit Court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execu- tion of a conveyance of land or the delivering up of deeds or other docu- ments, the decree shall, in all cases, 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 clerk's office, that the same has not been compUed with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affidavit, enlarg- ing the time for the performance thereof. If the deUnquent party cannot be found, a writ of sequesti-ation shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. § 5196. Writ of Assistance. 9. 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 entitled to a writ of assistance from the clerk of the court. § 5197. When Persons not Parties may Enforce Orders and Decrees. 10. Every person, not being a party to any cause, who has obtained an order ar in whose favor an order shall have been made, shall be enabled to enforce BULES IN EQUITY. 6o obedience to such order by the same process as if he were a party to the cause ; and every person, not being a party in any cause, against wliom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party in the cause. SERVICE OF PROCESS. § 5198. When Subpoena shall Issue. II. No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. § 5199. Return of Subpoena. 12. "Whenever a bill is filed the clerk shall issue the process of subpoena thereon, as of course, upon the application of the jjlaintifl:, which shall be returnable into tlie clerk's office tlie next rule-day, or the next rule-daj- but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpcena shall be placed a niemorandvim, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable ; other- wise, the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpoena against aU the defendants. § 5200. Service of Subpoena. The service of all subpoenas shall be by a deUvery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member or resident in the family. § 5201. Alias Subpoena. 14. Whenever any subpoena shall be returned not executed as to any defend- ant, the plaintiflf shall be entitled to another subpoena, toties quoties, against such defendant, if he shall require it, until due service is made. § 5202. Afladavit of Service. 15. The service of all process, mesne and final, shall be by the marshal of 64 BULES IN EQUITY. the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the per- son serving the process shall make affidavit thereof. § 5203. When Stiit Docketed. 16. Upon the return of the subpoena as served and executed upon any de- fendant, the clerk shall enter the suit upon his docket as pending in the court and shall state the time of the entry. APPEARANCE. § 5204. When Appearance Entered. 17. The appearance-day of the defendant shall be the rule-day to which the subpcBna is made returnable, provided he has been served with the process twenty days before that day ; .otherwise his appearance-day shall be the next rule-day succeeding the rule-day when the process is returnable. The appearance of the defendant, either personally or by his sohcitor, shall be entered in "-he order-book on the day thereof by the clerk. BILLS TAKEN PRO CONFESSO. § 5205. Filing Demurrer, Plea or Answer— Decree Pro Confesso --Discovery — Enforcing the Filing of Answer. 18. it shall be the duty of the defendant, unless the time shaU be otherwise enlarged, for cause shown, by a judge of the court, uijon motion for that purpose, to file his plea, demurrer or answer to the bill, in the clerk's office, on the rule-day next succeeding that of entering his appearance. In default thereof, the plaintiff may, at his election, enter an order (as of course) in the order-book, that the bill be takenpro confesso ; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attach- ment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a 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. (See Additional Equity Rule III., adopted by C. C. U. S., E. D, of Pa., infra.) BTJLES IN EQUITY. 65 § 5206. Decree Pro Confesso — Practice 19. When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for fUing the answer, upon cause shown, upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake 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. (See Additional Equity Rule III., adopted by C. C. U. S., E. D. of Pa., infra.) FEAIVIE OF BILLS. § 5207. Form of Introduction of Bill. 20. Every biU, in the introductory part thereof, shall contain tlie names, places of abode, and citizenship of all the parties, plaintiffs and defend- ants, by and against whom the bill is brought. The form, in substance, shall be as follows : "To the judges of the Circuit Court of the United States for the District of : A. B., of , and a citizen of the State of , brings this his bill against C; D., of . and a citizen of the State of , and of E. F. , of , and a citizen of the State of . And there- upon your orator complains and says that," etc. § 5208. Common Confederacy Clause— Charging Clause— Juris- diction Clause may be Omitted— Prayers. 21. The plaintiff in his bill shall be at Hberty to omit, at his option, the part which is usually called the common confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff ; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defense to the biU ; also what is commonly called the jurisdiction clause of the bill, that the acts complained are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be demurrable therefor. And the plaintiff may, in the nar- rative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon 5 66 • ETJLBS IN EQUITY. by the defendant by way of defense or excuse to the case made by the plaintiff for relief. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief ; and if an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is required, it shall also be specially asked for. § 5209. Parties. 22. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reaon why they are not made parties, by showing them to be without the juris- diction of the court, or that they cannot be joined without ousting the juris- diction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. § 5210. Prayer for Process. 23. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardian- ship, shall state the fact, so that the court may take order thereon, as justice may require upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process. § 5211. To be Signed by Counsel. 24. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon the instruction given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. § 5212. Costs. 25. In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness and directness in the allegations of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in tlie State Court of Chancery in the disti-ict, if any there be ; but if there be none, then it shall not exceed the sum of three -dollars for every bill or answer. IIULES IN EQUITY. 67 SCANDAL AND IMPERTINENCE IN BILLS. § 5213. Costs on Reference. 26. Every bill shall be expressed in as brief and succinct terms as it reason- ably can be, and shall contain no luinecessary recitals of deeds, documents, contracts or other instruments, in hcec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. It it does, it may, on exceptions, be referred to a master, by any judge of the court, for imperti- nence 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 judge thereof shall other- vs-ise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to aU costs occasioned by the reference. § 5214. Exceptions for Scandal and Impertinence — Practice. 27. No order shaU be made by any judge for referring any biU, ansvper or pleading, or other matter or proceeding, depending before tlie 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 exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order when obtained shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination. AMENDMENT OF BILLS. § 5215. When Amendments may be Made as of Course. 28. The plaintifif shall be at liberty, as a matter of course, ana without pay- ment of costs, to amend his bill, in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as fllUng blanks, correcting errors of dates, misnomer of -parties, misdescription of premises, clerical en-ors, and generally in matters of form. But if he amend in a material point (as he may do of course) after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish, in like manner, to the 68 EULBS IN EQUITY. defendant, a copy of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. § 5216. When Amendments Made upon Order. 29. After an answer, or plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill on or before the next suc- ceeding rule-day, upon payment of costs or without payment of costs, as the court or a judge thereof may in his discretion direct. But after repli- cation filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a 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 delay, or that the matter of the proposed amendment is material, and could not with reason- able diligence have been sooner introduced into the biU, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. § 5217. When Amendments to be Filed. 30. If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. DEMURRERS AND PLEAS. § 5218. Certifleate of Counsel— Affidavit. 31. No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel, that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant, that it is not inter- posed for delay ; and, if a plea, that it is true in point of fact. § 5219. When Demurrer, Plea or Answer to Part of Bill Allowed. 32. The defendant may at any time before the bill is taken for confessed, or afterward with the leave of the court, demur or plead to the whole biU, 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 com- EULES IN EQUITY. 69 bination, a plea to sucli part must be accompanied with an answer fortify- ing the plea and explicitly denying the fraud and combination, and the facts on which the charge is founded. § 5220. Ordering Demurrer or Plea for Argument. 33. The plaintiff may set down the demurrer 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. § 5221. If Demurrer or Plea Overruled— Costs. 34. If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant has good ground, in point of law or fact, to interpose the same, and it was not interposed vexatiously or for delay. And, upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule-day, or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default whereof, the bill shall be taken against him pro confesso, and the matter thereof pro- ceeded in and decreed accordingly. § 5222. If Demurrer or Plea shall be Allowed— Costs— Amend- ment to Bill. 35. If, upon the hearing, any demurrer or plea shall be allowed, the de- fendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. § 5223. Demurrer or Plea Good though not Sufllciently Ex- tensive. 36. 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. 37. No demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. 70 RULES IN EQUITY., § 5224. Beplication. 38. If the plaintiflE shall not reply to any plea, or set down any plea or de- murrer for argument on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose. (See Additional Equity Rule II., adopted by 0. C. U. S., E. D. of Pa., infra.) ANSWERS. §6225. Frame of Answer. 39. The rule, that if a defendant submits to answer he shall answer fully to all matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of defense (not being matters of abatement, or to the character of the parties or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a 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 plea in bar and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. Thus, for example, a bona flde purchaser, for a valuable consideration without notice, may set up that defense 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. § 5226. Discovery. 40. A defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto ; and a de- fendant shall not be bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer ; and where a defendant shall answer any statement or charge in the bill to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent. (This rule is repealed.) DECEMBER TERM, 1850. Ordered, That the fortieth rule, heretofore adopted and promulgated by this court as one of the rules of practice in suits in equity in the circuit courts, be, and the same is hereby repealed and annulled. And it shall not hereafter be necessary to interrogate a defendant specially and particularly RULES IN EQUITY. 71 upon any statement in the bill, unless the complainant desires to do so to obtain a discoveiy. § 5227. Interrogatories— Waiving Answer under Oath. 41. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered con- secutively 1, 3, 3, etc. ; and the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say : " The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3," etc. ; and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill. DECEMBER TERM, 1871. § 5228. Amendment to Equity Rule 41. If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on biU and answer only ; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the Act of Congress of July 2d, 1864. § 5229. Note as to Answering Interrogatories. 42. The note at the foot of the bill, specifying the interrogatories which • each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any altera- tion in or addition to such note, after the bill is filed, shall be considered and treated as an amendment of the bill. § 5230. Frame of Introduction to Interrogatories. 43. Instead of the words of the biU now in use, preceding the interrogating part thereof, and beginning with the words, "To the end, therefore," there shall hereafter be used words in the form or to the effect following : " To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their 72 EXILES IN EQUITY. several and respective corporal oaths, and according to the best and utmost of their several and respective knovrledge, remembrance, information and belief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note here- under written they are respectively required to answer ; that is to say : "1. Whether, etc. " 3. Whether, etc." § 5231. When Defendant may Decline Answering Interroga- tories. 44. A defendant shall be at liberty, by answer, to decline answei-ing any interi-ogatory, or pai't of an interrogatory, from answering which he might have protected himself by demurrer ; and he shall be at liberty so to de- cline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. § 5232. When PlaintiflF may Amend his BiU— When Answer Required to Amended Bill. 45. 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 liis bill, he may have leave to amend the same with or without the payment of costs, as the court, or a judge thereof, may in his discretion dh'eot. 46. In every case where an amendment shall be made after answer filed, the defendant shall jjut in a new or supplemental ansvs-er on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court ; and upon his default, the like proceedings may be had as in cases of an omission to put in an answer. PARTIES TO BILLS. § 5233. Non-resident. 47. In aU cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or 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 ; .nnd in such cases the decree shall be without prejudice to the rights of the absent parties. RULES IN EQUITY. 73 § 5234. Where Parties Numerous. 48. Where the parties on either side are very numerous, and cannot, with- out manifest inconvenience 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 proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and 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. § 5235. Trustees and Cestuis que Trustent. 49. In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the pro- .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 pro- ceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate repre- sent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make tlie persons beneficially interested in such real estate, or rents and profits, parties to the suit ; but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. § 5236. Heirs. 50. In suits to execute the trusts of a will, it shall not be necessary to make the heir-at-law a party ; but the plaintiffs shall be at liberty to make the heir-at-law a party where he desires to have the will established against him. § 5237. Joint and Several Claim. 51. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be neces- sary 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. § 5238. Objection to Parties— Argument— Practice. 52. Where the defendant shall, by his answer, suggest that the bill is de- fective for want of parties, the plaintiff shall be at liberty, within fourteen 74 ETTLES IN EQUITY. 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 clerk's order-book, in the form or to the effect following (that is to say) : "Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bUl. 53. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties 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 parties. NOMINAL PARTIES TO BILLS. § 5239. When Defendant !N"eed not Appear and Ans'wer. 54. Where no account, payment, conveyance or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not apjiear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his option ; and if he does not appear and answer he shall be bound by all the 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. § 5240. Injunctions— How Granted — "When Dissolved. 55. Whenever an injunction is asked for by the bill to stay proceedings at law, if tl!e defendant do not enter his appearance, and plead, demur or answer to the same within the time prescribed therefor by tliese rules, the plaintiff shall be entitled as of course, upon motion, without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not ap- pear at the time and place ordered. In every case where an injunction— either the common injunction or a special injunction— is awarded in vaca- tion, it shall, unless previously dissolved by the judge granting the same, continue until the next term of the court, or until it is dissolved by some- EULES IN EQUITY. 75 other order of the court. (See Additional Equity Rules XII., XIII., XIV., XV., adopted by C. 0. U. S., E. D. of Pa., infra.) BILLS OF REVIVOR AND SUPPLEMENTAL BILLS. § 5241. "When Bill of Revivor Necessary. 56. Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same ; which bill may be filed in the clerk's office at any time ; and upon suggestion of the facts, the proper process of siibpcena shall, as of course, be issued by theT clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day which shall occur after four- teen days from the time of the service of the same process, the suit shall stand revived, as of course. § 5242. When Supplemental Bill Necessary. 57. Whenever any suit in equity shall become defective from any event happening after the filing of the biU (as, for example, by change of interest in the parties), or for any other reason, a supplemental bill, or a bill in the nature of a supplemental bill,, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule-day, upon proper cause shown, and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead or answer thereto, on the next succeeding rule-day after the supple- mental bill is filed in the clerk's office, unless some other time shall be as- signed by a judge of the court. § 5243. Frame of Bill of B^vivor or Supplemental Bill. 58. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special cir- cumstances of the case may require it. ANSWERS. § 5244. Afadavit to Answer. 59. Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by 76 ETTLBS IN EQUITY. any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a State or Territory, or before any notary public. (Promulgated March 5, 1889.') AMENDMENT OF ANSWERS. § 5245. Wlien Amendment is of Course and when Allowed by the Court. 60. After an answer is put in, it may be amended, as of course, in any mat- ter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be re-sworn, at any time before a replication is put in, or the cause is set down for a hearing upbn 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- fenses, or qualifying or altering the original statements, except by special leave of the court, or of a 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 en- grossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom. EXCEPTIONS TO ANSWERS. § 5246. When Exceptions to be Filed. 61. After an answer is filed on any rule-day, the plaintiff shall be allowed until the r(ext succeeding rule-day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court, or a judge thereof ; and, if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. § 5247. Separate Answer— Costs. 62. When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other proceedings had, by two or more of the defendants separately, costs shall not be allowed for such separate an- swers, or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. IIULES IN EQUITY. 77 § 5248. When Exceptions to Answers may be Argued— Costs. 63. Where exceptions shall be filed to the answer for insufficiency, within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeed- ing rule-day thereafter, before a judge of the court, and shall enter, as of course, in the order-book, an order for that purpose ; and if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answers shall be deemed sufficient : Provided, koivevfr. That the court, or any judge thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. § 5249. If Exceptions Allowed — When Full Answer to be Filed — Attachment. 64. If, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next succeed- ing rule-day ; otherwise the plaintiff 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 defend- ant to make a better answer to the matter of the exceptions ; and the de- fendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. § 5250. If Exceptions Overruled— Costs. 65. If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. REPLICATION AND ISSUE. § 5251. When Replication to be Tiled. 66. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter ; and in all cases where the general replication is filed, the cause shall be 78 BULES IN EQUITY. 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 an order, as of course, for a dismissal of the suit ; and the suit shall there- upon stand dismissed, unless the court, or a judge thereof, shall, upon motion, for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. {See Additional Equity Rule II., adopted by C. C. U. S., E. D. of Pa., infra.) TESTIMONY— HOW TAKEN. § 5252. Examiners — Proceedings Before Examiner — Costs- Commissions — Depositions. 67. After the cause is at issue, commissions to take testimony may be taken out in vacation as weU as in term, jointly by both parties, or severally by «ither party, upon interrogatories filed by the party taking out the same in the clerk's oifice, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time, the com- mission may issue ex parte. In all cases, the commissioner or commis- sioners shall be named by the court, or by a judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written interrogatories. (This rule is repealed.) DECEMBER TERM, 1854. Ordered, That the sixty-seventh rule governing equity practice be so amended as to allow the presiding judge of any court exercising jurisdic- diction, either in term time or in vacation, to vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge thereof can now do by the said sixty-seventh rule. (This rule is repealed.) DECEMBER TERM, 1861. Ordered, That the last paragraph in the sixty-seventh rule in equity be repealed, and the rule be c»mended as follows : Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orall}', and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the biU and answer, if any ; and such examination shall take place in the presence of the parties, or their agents, by their counsel or soUc- itors, and the witnesses shall be subject to cross-examination and re-ex- amination, and which shall be conducted as near as may be in the mode now used in common-law coui-ts. Tlie depositions taken upon such oral examinations shall be taken down in writing by the examiner in the form. KULES IN EQUITY. 79 •of narrative, unless he determines the examination shall be by question and answer in special instances ; and, when completed, shall be read over to the witness and signed bj- him in the j)resence of the parties or counsel, or such of them as may attend : Provided, If the witness shaU refuse to sign tlie said deposition, then 'the examiner shall sign the same ; and the ex- aminer may, upon all examinations, state an}' special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality or relevancj' of the ques- tions ; and the court shall have power to deal with the costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just. (This rule is repealed.) In case of refusal of witnesses to attend, to be sworn or to answer any question put by the examiner, or by counsfl or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be pro- duced on examination before an examiner of said court on written inter- Togatories. Notice shall be given by the respective counsel or solicitors, to the op- posite counsel or solicitors, or parties, of the time and place of the exami- nation, for such reasonable time as the examiner may fix by order in each cause. Wlien the examination of witnesses before the examiner is concluded, the original deposition, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in the thirtieth section of Act of Congress. September 24th, 1789. Testimony may be taken on commission in the usual way, by written inteiTogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. (This rule is repealed.) DECEMBER TERM, 1869. § 5253. Amendment to Rule 67. Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December Term, 1861, amending the CTth General Rule, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shaU take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply ; and no further evidence shall be taken in the cause, un- less by agreement of the parties, or by leave of court first obtained, on motion, for cause shown. (This rule is repealed.) OCTOBER TERM, 1891. Ordered, That all parts of Rule 67 of the Rules of Practice for the Courts of Equity of the United States as now existing be, and the same are hereby 80 EULES IX EQUITY. Buperseded, and the following rule is promulgated as such Rule 67. (An- nounced May 3, 1892.) 67. After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the commissioner or commissioners may be named by the court, or by a judge thereof, and the presiding judge of the court exercising jurisdiction may, either in Jerm time or in vacation, vest in the clerk of the court general power to name commissioners to take testimony. Either party may give notice to the other that he desires the evidence to be adduced in tlie cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court. The examiner, if he so request, shall be furnished with a copy of the plead- ings. Such examination shall take place in the presence of the parties or their agents by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-examination, all of which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examination shall be reduced to writing by the examiner, in the form of question put and answer given : Provided, That, by consent of the parties, the examiner may take down the testimony of any witness in the form of narrative. At the request of either party with reasonable notice, the deposition of any witness shall, under tlae direction of the examiner, be taken down either by a skillful stenographer or by a skillful typewriter as the examiner may elect, and when taken stenographically shall be put into tj-pewriting, or other writing : Provided, That such stenographer or typewriter has been appointed by the court, or is approved by both parties. The testimony of each witness, after such reduction to writing, shall be read over to him and signed by him in the presence of the examiner and of such of the parties or counsel as may attend : Provided, That if the witness shall refuse to sign his deposition so taken, then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all examinations, state any special matters to the court, as he shall think fit ; and any question or questions wliich may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality or relevancy of the questions ; and the court shall have power to deal with the costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just. In case of refusal of witnesses to attend, to be sworn or to answer any question put by the examiner, or by counsel or solicitor, the same practice KTJLES IN EQUITY. 81 shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or soUcitors, to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. When the examination of witnesses before the examiner is con- cluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in section 865 of t]ie Revised Statutes. Testimony may be taken on commission in the usual way, by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. Where the evidence to be adduced in a cause is to be taken orally, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the biU, and a time thereafter within which the defendant shall take his evidence in defense , and a time thereafter within which the complainant shall take his evidence in reply ; and no further evidence shall be taken in the cause, unless by agreement of the parties, or by leave of court first obtained, on motion for cause shown. The expense of taking down of depositions by a stenographer and of putting them into typewriting or other writing shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ultimately bear them. Upon due notice given as prescribed by previous order, the court may, at its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing. (Promulgated May 15, 1893.) § 5254. Depositions. 68. Testimony may also be taken in the cause, after it is at issue, by depo- sition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross- examination of the witness, either under a commission or by a new depo- sition taken under the acts of Congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. § 5255. Testimony to be Taken in Three Montlis. 69. Three months, and no more, shall be allowed for the taking of testi- mony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time ; and no testi- mony taken after such period shall be aUowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the 6 G'l ETJLES IN EQUITY. circumstances ; but, by consent of the parties, publication of the testimony may at any time pass into the clerk's office, such consent being in writing, and a copy thereof gntered in the order-books, or indorsed upon tlie depo- sition or testimony. TESTIMONY DE BENE ESSE. § 5256. Going and Infirm Witnesses. 70. After any bill filed and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged and in- firm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall as of course, upon the appli- cation of the plaintiff, issue a commission to such commissioner or commis- sioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. FORM OF THE LAST INTERROGATORY. 71. The last interrogatory in the written interrogatories to take testimony now commonly in use shall in the future be altered, and stated in substance thus ; " Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your exami- nation, or the matters in question in this cause ? If yea, set forth the same fully and at large iu your answer." CROSS-BILL. § 5257. Discovery— Practice. 72. Where a defendant in equity flies a cross-bill for discovery only against the plaintiff in the original bill, the defendant to the original biU shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. REFERENCE TO THE PROCEEDINGS BEFORE MASTERS. ;§ 5258. Account of Personal Estate of Testator or Intestate to be Directed. 73. Every decree for an account of the personal estate of a testator or RULES IN EQUITY. 83 intestate shall contain a direction to the master to whom it is referred to take the same to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct. § 5259. Master to be Advised of Appointment. 74. Whenever any reference of any matter 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 on or before the next rule-day succeeding the time 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. § 5260. Meetings— Notice— Delay. 75. 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 their solicitors ; and if either party shall fail to 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 pro- ceedings 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 reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or the 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. (See Additional Equity Rule VII., adopted by C. C. U. S., E. D. of Pa., infra.) S 5261. Master's Report. 76. In the reports made by the master to the court, no part of any state of facts, charge, affidavit, deposition, examination or answer brought in or used before them shall be stated or recited. But such state of facts, chai-ge, affidavit, deposition, examination or answer shall be identified, specified and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination or answer were so brought in or used. § 5262. Production of Books and Papers — Examination of Witnesses. 77. The master shall regulate all the proceedings in every hearing before 84 ETTLES IN EQUITY. him, upon every such reference ; and he shall have full authority to examine the parties in the cause, upon oath, touching aU matters contained in the reference ; and also to require the production of all books, papers, writings, vouchers and other documents applicable thereto ; and also to examine on oath, viva voce, all vsdtnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office or by deposition, according to the acts of Congress, or otherwise, as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries 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. § 5263. Subpoenas— Attacliinents. 78. Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compen- sation as for attendance in court ; and if any witness shall refuse to appear or give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's ofiice by the commissioner, master or examiner, an attachment may issue thereupon by order of the court, or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable. § 5264. Accounting before Master. 79. All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, in the master's office, or by deposition, as the master shall direct. § 5265. Aflldavits, Depositions and Documents Previously Filed may be TJsed. 80. AU affidavits, depositions and documents which have been previously made, read or used in the court, upon any proceeding in any cause or matter, may be used before the master. RULES IN EQUITY. 85 § 5266. Mode of Examination by Master. 81. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. § 5267. Master's Fee— How Regulated— How Enforced. 82. The circuit courts may appoint standing masters in chancery in their respective disti-icts, a majority of all the judges thereof, including the justice of the Supreme Court, the circuit judges and the district judge for the district, concurring in the appointment ; and they may also ap- point a master pro hae vice in any particular case. The compensa- tion to be allowed to every master in chancery for his services in any particular case shall be fixed by the Circuit Court, in its discretion, having regard to all the circumstances thereof, and the compensation shall 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. (Promulgated April 16, 1894.) EXCEPTIONS TO REPORT OP MASTER. § 5268. Piling Report— Exceptions. 83. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clei-k in the order-book. The parties shall have one month from the time of filing the report to file exceptions thereto ; and, if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule-day after the month is expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in session ; or, if not, then at the next sitting of the court which shall be held thereafter, by adjournment or otherwise. (See Additional Equity Rules VIII., IX., X., adopted by the C. C. U. S., E. D. of Pa., infra.) 8 5289. Costs. ^ 84. And, in order to prevent exceptions to reports from being filed by frivolous causes, or for mere delay, the party whose exceptions are over- 86 EULES IN EQUITY. ruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs ; the costs to be fixed in each case by the court, by a standing rule of the Circuit Court. {See Additional Equity Rule VIII., adopted by C. C. U. 8., E. D. of Pa., infra.) DECREES. § 5270. Correction — Amendment. 85. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enroll- ment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. § 5271. Frame of Decree. 86. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order 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 was ordered, adjudged and decreed as follows, viz. : " (here insert the decree or order). § 5272. Guardians and Proehein Ami. 87. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardian- ship, or otherwise incapable to sue for themselves. AH infants and other persons so incapable may sue by their guardians, if any, or by their proehein ami ; subject, however, to such orders as the court may direct for the pro- tection of infants and other persons. § 5273. Frame of Petition for Rehearing. 88. 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. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. RULES IX EQULTY. 87 g 5274. Practice to be Eegulated from Time to Time and to Accord with the Practice of the High Court of Chancery in England. 89. The circuit courts (a majority of all the judges thereof, including the justice of the Supreme Court, the circuit judges and district judge for the district concurring therein) may make any other and further rules and regu- lations for the practice, proceedings and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed in their discretion, and from time to time alter and amend the same. (Pro- mulgated Aprilie, 1894.) 90. In all cases where the rules prescribed by this court or by the Circuit Coiirt do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be appUed consistently with the local circum- stances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. § f 275. Afllrmation in Lieu of Oath. 91. Whenever, under these rules, an oath is or maybe required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. DECEJIBER TERM, 1863. § 5276. In Suits to Foreclose Mortgages— A Decree may be Made for Payment of Balance. 92. Ordered, That in suits in equity for the foreclosure of mortgages in the circuit courts of the United States, or in any court of the Territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the eighth rule of this court regulating the equity practice, where the decree is solely for the payment of money. OCTOBER TERM, 1878. g 5277. Injunctions— Cautionary Orders— Practice on Appeal —Act of Congress, June 1, 1872. 93. When an appeal from a final decree in an equity suit, granting or 88 EXILES IN EQUITY. dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending or modifying the injunction during the pendency of the appeal, upon such terms as to bond or otherwise as he may consider proper for the security of the rights of the opposite party. The following provisions relating to equity practice are to be found in the Act of 1st June, 1872 : § 7. That whenever notice is given of a motion for an injunction, out of a circuit or district court of the United States, the court or judge there- of may, if there appear to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion. Such order may be granted with or without security, in the discretion of the court or judge : Provided, That no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order except within the circuit to which he is allotted, and in causes pending in the circuit to which he is allotted, or in such causes at such place out- side of the circuit as the parties may in writing stipulate, except in causes where such application cannot be heard by the circuit judge of the cir- cuit or the district judge of the district. (See Additional Equity Rules XII., XIII., XIV., XV., adopted by C. C. U. S., E. D. of Pa., infra.) % 5278. Non-resident Defendants— How Served— Act of Con- gress, June 1, 1872. § 13. That when in any suit in equity, commenced in any court in the United States, to enforce any legal or equitable lien or claim against real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer or demur to the complainant's bill at a certain day therein to be designated, which order shall be served on such absent de- fendant, if practicable, wherever found ; or where such personal service is not practicable, such order shall be published in such a manner as the court shall direct ; and in case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or pubKcation of said order, and of the performance of the directions con- tained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district ; but said adjudication shall, as regards such absent defendant without appearance, affect his property withm such district only. ETJLES IN EQUITY. 89 OCTOBER TERM, 1881. § 5279. Bills Against Corporations in Certain Cases must be Sworn to, eto. 94. Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded or. rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintifE was a shareholder at the time of the trans- action of which he complains, or that his share had devolved on him since, by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action. ADDITIONAL RULES OF PRACTICE IN EQUITY, ADOPTED BY THE CIECUIT COURT OF THE UNITED STATES, FOR THE EASTERN DISTRICT OF PENNSYLVANIA, TN THE THIRD CIRCUIT. § 5280. When Pleadings must be Printed— Service. I. A printed copy of all pleadings shall be filed ; if written pleadings are filed, printed copies shall be filed within ten days thereafter, or the written pleadings may on motion be taken ofif the file : Provided, That the court may dispense with printed copies on being satisfied that a proper case exists for such order ; and each solicitor shall be entitled to five copies, except where written pleadings are authorized by this rule, and in that case one fair written copy shall be served. ;§ 5281. Eeplication— Bule to Reply. II. If a replication is not filed by the next rule-day, after ten days' notice 90 RULES IN EQUITY. to reply, the plaintiflE shall be deemed to have elected that the cause may- be heard on biU and answer, unless the court shall, for suflacient cause,, authorize a replication to be subsequently filed. § 5282. Decree Pro Confesso— Practice. m. After appearance entered, if the plaintiff shall enter a decree pro con- fesso, for want of an answer, plea or demurrer at a succeeding rule-day, without having given written notice of his intention, substantially in the form, following : A. V. B. You are required to file a plea, answer or demurrer to the bill, on or before the next rule-day, or a decree will be entered. Which notice shall have been served twenty days at least before such rule-day, together with a printed copy of the bill, or if the defendant having filed a plea, answer or demurrer, shall enter a decree dismissing the biU under Rule 38, or under Rule 66, without having given written notice of his intention, substantially in the form following : A. V. B. You are required to reply to the plea : to set the plea or demurrer down for argument (as the case may be), on or before the next rule-day. Which notice shall have been served, together with a copy of the de- murrer or plea, at least twenty days before the decree of dismissal shaU be entered. The omission to give such notice, and to serve such copies, shall be sufiicient ground for vacating the decree made, upon the party applying undertaking to file an answer, or to set down the plea or demurrer, or to reply to the plea by the next rule-day. § 5283. Service of Motions— Orders— Biiles. IV. Copies of all motions, rules and orders, other than such as have been made or allowed after notice, shall be left at the office of the solicitor of the opposite party ; and if more than one solicitor has appeared, each shall be entitled to a copy. All proceedings under such motions, rules and orders may be vacated, upon terms to be fixed by the court, in case such notice has not been given. § 5284. Testimony Taken Stenographically— Examiner's Duties. V. Either party may require that testimony be taken stenograpliically, unless for sufficient cause the court shall otherwise direct. And the court shall, upon request of either party, direct the examiner to sit de die in diem, and during certain hours, to insure the speedy conclusion of the- EITLBS IN EQUITY. 91 testimony. Where testimony is taken stenographically, a long-hand copy shall be read to the witness as soon as it can be made, and shaU be signed as directed in Rule 67, as amended. § 5285. Testimony to be Printed. VI. Each party shall print the testimony (other than testimony by com- mission) taken on his part as the same proceeds, and furnish five copies to the other side, and copies for the court at the hearing. Testimony taken under a commission shall be printed immediately after the same is returned, by the party issuing the commission. And on refusal to print, the court may order the testimony to be suppressed, or authorize the opposite party to print the same, and the expense shall be deemed costs in the cause. § 5286. Master's Duties. VII. In all cases of reference to a master, the court may on application of either party, after notice, direct the master to sit de die in diem, or at such times as they deem proper, so as to secure the speedy conclusion of the reference (and in analogy with the hours observed in the sittings of courts), and, in case viva voce testimony is taken, he may employ a stenographer for the purpose. § 5287. Costs on Overruling Exceptions to Master's Report. VIII. On each exception to a master's report overruled, the costs allowed shall be five dollars, but not exceeding fifty dollars in the whole, or any less sum the court may, under the circumstances, deem proper. § 5288. Argument sur Exceptions. IX. At the hearings, each party shall orally state the issues raised by the pleadings. They shall then read the evidence either from the pleadings or the testimony taken, and the admissibility of evidence shall then be deter- mined, and before the argument, as usual in common-law causes before a jury. X. Each party shall furnish a statement of the points of fact or law pro- posed to be argued, and a reference to the pages of the pleadings or proofs relied on. But elaborate written arguments are not expected or desired. S2 ETJLBS IN EQUITY I 5289. Statement of Pleadings and Testimony may be Filed. XI. , For the purpose of appeal, or any ulterior proceeding in the cause, and for the convenience of the court in determining the case, there shall be filed by each party if requested, within five days after the hearing, a state- ment of the pleadings read as proofs, and of the testimony read and ad- mitted, with notes of such parts as are rejected or admitted upon objection, and these being settled by the court, if objections are made to such state- ment, shall form the record of the evidence actually read and used upon which the decree is based. The statement shall consist of a reference to the pages of the pleadings and proofs filed in the cause. § 5290. Motion for Injunction— Practice. XII. No motion for an injunction shall be heard until four days after service of a copy of the bUl and proofs on which the motion is based, upon the party to be affected or his solicitor. But the plaintiff may obtain an order authorizing the motion on any shorter time, where the court is satisfied that such notice cannot be given without risk of injustice. After such notice, and until the party to be affected by the injunction is ready for a hearing, the injunction, if granted, shall be deemed to have been granted at the time notice of the motion was actually received, if the court sees fit to order the injunction as of the date of the notice. (Note. — This is no more than is implied by the rule of lis pendens.) But no act done after the time appointed for the hearing shall be deemed a contempt, unless the hearing is postponed at the instance of the defendant, and the postponement noted to have been at the request of his counsel. XIII. Further proofs may be allowed in the discretion of the court, to rebut any affidavits used in answer to the motion, but not as original grounds for the motion. XIV. If, upon the hearing of a motion for an injunction, it appears that the question cannot be satisfactorily disposed of upon ex parte afiidavits, be- cause of contradictory statements or otherwise, the court may direct the witnesses to be cross-examined, or their afiidavits produced, or may allow the witnesses to be examined and cross-examined, and either postpone the hearing or grant the motion, with leave to move to dissolve, after the examinations are completed, and they may fix a time when the witnesses shall be tendered, and the examinations shall be completed. XV. Objections to testimony, other than to its relevancy or sufficiency, shall RULES IN EQUITY. 93 he made within five days after tlie same is filed, and the court may imme- ■liately make such order in respect thereof as is proper. § 5291. Stenographer may be Examiner— Fee. XVI. On motion of the solicitor of either party, a skillful stenographer may be appointed an examiner, and aU examiners are required to sit, whenever requested, between the hours of 10 a. m. and 5 p. m. upon reasonable notice. Stenographers, where appointed, may furnish substitutes, known to be competent, if tlie parties consent, in case of inabilitj' to attend when required. Their compensation shall be fifty cents for each three hundred words, and five dollars for each attendance under notice when no testimony is taken (which shall include the expense of furnishing a copy of the testi- mony for printing, and the copy to be filed, where a stenographer is appointed). Their costs shall be payable immediately by the party in whose behalf the examiner has been acting, and, with the costs of printing required by these rules, shall be taxable costs in the cause. § 5292. Examiner may be Appointed by Consent of Parties. XVII. The parties, by consent, may select any person to act as examiner, and the evidence returned by him shall be read as if taken before a standing examiner. The Act of June 16, 18.36, § 1.3 (P. L., Y89), provides : In every case in which any court * * * shall exercise any of the powers of a court of chancery, the same shall be exercised according to the prac- tice in equity, prescribed or adopted by the Supreme Court of the United States, unless it be otherwise provided by Act of Assembly, or the same shall be altered by the Supreme Court of this Commonwealth, by general rules and regulations, made and published as is hereinbefore provided. CHAPTER IV. WHO BIAY SUE IN EaUITY. § 5293. A State. The State by the Attorney-General, other States of the Union and other governments by their proper officials can file bills. But a foreign government must have been recog- nized by our Government. Our courts must take notice of the facts. § 5294. Lunatics. Idiots and lunatics usually sue by the committee of their estates. § 5295. Infants. Other persons incapable of acting for themselves may sue by a next friend. It has occurred that two suits have been instituted in the name of an infant by different persons, each acting as his next friend. The court in such cases ascertains which suit is most for the benefit of the infant and then stays the other suit. So, too, if it be represented that a suit preferred in the name of an infant by a next friend is not for the infant's benefit, the court will inquire and may stay the suit. Lord Redesdale, 21; Da Costay. Da Costa, 3 P. Wms., 140(1732); Richardson v. Miller, 1 Sim., 133 (1826) ; Nalder V. HawJcins, 2 Mylne & Keen, 243 (1833). The court will remove the next friend on failure to do his duty, or if he be improperly connected with the de- fendants. Russell V. Sharp, 1 Jacob & Walker, 462 (1820) ; 94 "WHO MAY SUE IN EQUITY. 95 Ward V. Ward, 3 Merivale, 706 (1813) ; Peyton v. Bond, 1 Sim., 390 (1827). § 5296. Rule as to Persons not Sui Juris. The 19th section of Eule V. in Pennsylvania directs that "where infants or persons not sai juris 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. )i § 5297. Effect of Decree against Infant in his Suit. An infant is as much bound by a judgment in his own suit as if he were an adult. Gregory v. Molesworth, 3 Atk., 626 (171:7). In Phillips' Appeal, 1 Cent. Eep., 636 (1885), judgment was obtained against a minor, who, after her majority, appealed and the proceedings were affirmed. The question of infancy was not raised. She subsequently endeavored to have the judgment stricken off on account of her minor- ity when it was entered. The Supreme Court held that she vas bound by the decision upon her former appeal. § 5298. But not Bound in Case of Fraud, etc. Yet if gross laches or fraud appear to have been prac- ticed by the next friend, the decree may be opened. Shef- field y. Duchess of Buckinghamshire, 1 Atk., 628 (1739). In Sir John Napier's Case he was allowed after he came of age to amend his answer or to put in a new answer, for the reason that the cause had been mismanaged by his solic- itor. 2 P. Wms., 401 (1726). The statutes regulating service upon minors in Orphans' Court proceedings are cited. Brews. Prac, Vols. III., IV., §§ 3836, 384:2. The jurisdiction of that court as to appointment of guardians is explained, §§ 4366, 4367, 4368, 4369, 4370- 4373. Non-resident guardians and executors are referred to, §§ 4379-4389. 96 WHO MAY SUE IN EQUITY. When the court may appoint in absence of the minor, § 4390. The minor may subsequently choose. Ibid. Guardians ad litem and service upon guardians, §§ 4391, 4392. How process served in real actions on minors above fourteen, § 4391. If under fourteen, § 4392. Guardians ad litem and other matters touching estates of minors, §§ 4394-4441, 4444, 4511, 4512, 4576, 4577, 4579, 4699, 4717, 4780, 4781, 4782, 4817, 4872. § 5299. As to Charities. It was formerly held in England that the relator must have some interest, however remote. But Lord Gifford, Master of the Rolls, ruled that it was "not necessary for relators to have any interest." Attorney -General v. Vivian, 1 Euss., 236 (1826). In cases arising under our Charity Act of April, 26, 1855 (P. L., 331), the Attorney-General can give leave to any party desirous of carrying the charity into effect. Any trustee of a charity may sue. § 5300. Bankrupts and Insolvents. One declared a bankrupt, and a person who has made an assignment for the benefit of creditors, cannot be plaint- iffs for the collection of any claim passing to the assignee. But they may file bills for discovery in response to suits against them. And as they have an interest in whatever surplus may remain after paying claims, they may assign this surplus for valuable consideration, and in proper cases the assignees of the surplus may maintain bills. Spragg v. Binkes, 5 Ves., 583 (1800). § 5301. Absentees. Whilst an alien enemy and a person residing in the' territory of an enemy without license from our Govern- WHO MAY SUE IN EQUITY. 97 ment cannot sue, yet the disability against non-residents extends no further. They can sue, being subject to an order for security for costs. This will be ordered by the court if the non-residence appear on the face of the bill, or is otherwise established to the satisfaction of the court. All proceedings are stayed upon this order being made, and it has been decided that after long non-compliance a day will be fixed, and then in default the bill may stand dis- missed. Temporary absence will not entitle the defendant to the order. § 5302. Waiver of Right to Demand Security. It has been held in England that the defendant must make the application as soon as he knows the fact of the plaintiff's non- residence. If it appear on the face of the bill the defendant must apply before he answers. Asking for time is a waiver. Answering to exceptions to his answer after knowledge of the non-residence is also a waiver. In Southmayd v. Hender^son, 13 W. N., 78 (1883), an application for security was held to be too late, the equity proceedings having been pending twenty years, and testi- mony having been taken. In Long v. Tardy, 1 Johns. Ch. Eep., 202 (1814) (N. Y.), a demurrer by the defendant was held to be a waiver. So, where the plaintiff's non-residence appeared upon the face of the bill, and the defendant filed a plea, it was held a waiver of thfe right to security. Goodrich v. Pen- dleton, 3 Id., 520 (1818). The defendant waives his right if he takes any step in the cause or even prays time to answer. Ihid. At law, the application should be made promptly. Many of the cases apply, by analogy, to equity pro- ceedings. § 5303. When Case at Issue. Security was ordered, although the case was at issue and on the trial list. Hallahan v. Murray, 3 W. N., 44 98 WHO MAY SUE IN EQUITY. (1876). Under similar circumstances the order was refused in Cantelo v. Binns, 2 Miles, 86(lb37) ; Bogcuxhtsv. Will- iams, 1 CO. Rep., 673(1885), and in Ftichs v. Wright, 6 W. N., 157 (1878), the court remarking in the last case, ' ' When the case is ready for trial we will not delay the plaintiff on such a motion unless for cause arising since issue." In Duparquet v. Brodhead, 1 Northam., 48(1883), security was ordered after issue joined, the case not being delayed thereby. In Bickfordv. Ice Co., 8 W. N., 106 (1879), where the case had been at issue two years, the court held the application too late, there being no evidence of the plaintiff's insolvency. This was followed in Mason v. Frick, 12 W. N., 670 (1883). The application was held too late after judgment by default had been opened. Apple- gate V. R. R. Co., 12 W. N., 406 (1882) ; Firestone v. Christ, 2 C. C. Eep., 413 (1886) ; Baker y. Johnson, Id., 414. "Where the case was at issue but plaintiff declined to try, the security was ordered ; Shaw v. Wallis, 1 Yeates, 170 (1792) ; so where the case was continued on the plaintiff's application ; Hickok v. Assn., 14 W. N., 12 (1883) ; and where, owing to the judge's illness, the case was not reached. Kirk v. Korn, 13 W. N., 281 (1883). But where the case was continued on account of the trial juage's absence, and the plaintiff subsequently filed an amended statement, the order was refused. Smart v. Chamberlin, 26 W. N., 272 (1890). Ruling plaintiff to declare was held to be a waiver, in Frantz v. Dehart, 1 C. C. Rep., 4 (1884) ; filing a plea was decided not to deprive the defendant of the order, in Michael v. Forsythe, 2 Chest. Co. Rep., 82 (1883). After a case has been arbitrated and the defendant ap- peals, he cannot demand the security ; Carriage Co. v. Lotuenstein, 4 Kulp, 359 (1887) ; nor when the award being In the plaintiff's favor the defendant does not appeal. McGarry v. Crispin, 3 Clark, 25 (1845). Where neither side could fix upon the other the respon- sibility for long delay in the proceedings, the security was ordered. Hass v. B. B. Co., 5 Lancaster Law Review, 553 (1888). WHO 11 AY SUK IN EQUITY. 99 In Ellison v. LiyM Co., 19 W. N., 131 (1887), security was ordered although the plaintiff's statement had not been filed. § 5304. When the Order will be Made. The rule is of course where the plaintiff resides out of the State ; Fishery. Evans, 1 P. A. Browne, 256 (1811) ; and security was ordered where the plaintiff, after suit brought, had removed from the State. Roese v. Barry, 1 W. N., 20 (1874). A rule of court which was silent as to the time when the residence out of the State must have commenced, whether before the commencement of the action or after it, was held to apply to a case where the plaintiff resided in the State when the suit was begun but subsequently removed to another State. Sharp v. Buffington, 2 W. & S., 454 (1841). In Buck v. James, 2 Chester Co. Rep., 401 (1885), an executrix who removed from the State was re- quired to give security in a suit pending. Non-resident creditors of a partnership association who had not obtained judgment were required to give security upon application by them to discharge the liquidating trustees. In re Dec- orative Co., 11 C. C. Eep., 201 (1890). The security was ordered in divorce proceedings, where the libellant and next friend were both non-residents, and the libel was resisted. McElhinney v. McElhinney, 13 W. N., 194 (1883). In Wallace v. Williams, 6 Kulp, 36 (1890), a non-resident plaintiff in an attachment execution was ordered to give security, on motion of the garnishee. A non-resident plaintiff in replevin was required to enter security in addition to the ordinary bond. Howard v. Herbert, 36 Leg. Int., 16 (1879). In Massey v. Gillelan, 1 Paige Ch. (N. Y.), 644 (1829), the plaintiffs became insolvent while the suit was pending. Their acsignee was required to give security for costs before proceeding with the suit. InAppleton v. Buth, 15 W. N., 127 (1884), the plaintiff was a clergyman who formerly had charge of a Philadel- phia church, but had resigned and gone to New Jersey. In opposition to a rule for security he alleged that his New 100 WHO MAY SUB IN EQUITY. Jersey residence was temporary, and that he had no inten- tion of leaving Philadelphia ; that according to ecclesiasti- cal law he was still a member of the Diocese of Pennsyl- vania. The rule was made absolute, Judge Ludlow re- marking, that " technical residence is not enough when the person has really withdrawn himself from the jurisdiction. Security for costs should be entered when a man is sub- stantially a non-resident, although he may technically be within the jurisdiction. The question is, can you serve him with process ? " In Dalton v. Bateson, 12 0. C. Rep., 544 (1892), the plaintiff resided in Maryland. She swore she owned real estate in Philadelphia and intended returning to that city ; but security was ordered, and not being given, a non-suit was entered. § 5305. When Security will not be Ordered. Where one of three plaintiffs was a resident and the others were non-residents, the order was refused. Zimmer- man V. Mendenhall, 2 Miles, 402 (1840). Where the legal plaintiff was a resident, but the use plaintiff was a non- resident, the rule was discharged upon the filing of an averment that the legal plaintiff consented to the bringing of the suit. Black v. Moltby, 26 W. N., 97 (1890). A non-resident execution creditor was relieved from security in a sheriff's interpleader. Palmer v. Cole, 3 Kulp, 55 (1884) ; Linton v. Pollock, 5 0. C. Eep. 243 (1888). See Goss v. Gerhard, 1 W. JST., 51 (1879), to the same effect. In Manhattan v. Grauley, 11 W. N., 255 (1882), the execution plaintiff was a foreign corporation ; a rule by the claimant, for security for costs, was discharged. The rule should be enforced where the plaintiff takes the benefit of the insolvent laws, and the beneficial interest in the suit passes to the assignees. But where the action is for damages for a personal tort, the rule has no applica- tion. McFarland v. Brown, 11 S. & R., 121 (1824). The following are the rules as to security for costs in the U. S. courts and the Court of Common Pleas of Phila- delphia : WHO MAY SUB IN EQUITY. 101 In every action in whicii the plaintiff or complainant is not at the time of suit brought a resident of the eastern district of Pennsylvania, or, being so, afterwards removes from the district ; and in every other case where a defendant, or other person for him, shall make affidavit that he believes tlie costs could not be recovered of the plaintiff by attachment or execution, a rule for security for costs may be entered, upon due notice, and in default of such security being given at a time designated by the court, judgment of non-suit shall be entered on motion. (Rules at Law, U. S. Circuit Court, XI., § 1.) In cases where the plaintiff resides out of the State at the time of suit brought, or subsequently removes therefrom, in qui tarn actions, in suits on administration or office bonds, or where the plaintiff after suit brought has taken the benefit of the insolvent laws, the defendant, on motion and affi- davit of a just defense against the whole demand, may have a rule for security for costs ; and in default of security being entered at the time named by the court, judgment of non-suit may be entered, on motion. (Rule XVI., § 44, C. P. of Philadelphia.) The affidavit for the rule, the notice and form of the order will be found in Brews. Prac, Vol. II., §§ 3137 and 3138. See also, as to the general practice and decisions other than those above noted, Ibid., §§ 3126-3128, and Brews. Prac, Vol. IV., §§ 4984, 4985. In actions at law, should the plaintiff neglect to enter the security after being ordered to do so, a non-suit will be entered. Fouse v. Cm-rick, 5 W. N., 168 (1878). In equity, the penalty for failure to give the security is the dismissal of the bill. Camac v. Grant, 1 Sim., 348 (1827) ; Breeding V. Finletj, 1 Dana (Ky.), 477 (1833). The courts, in equitable proceedings, follow by analogy the rule at law as to security for costs, our equity rules containing no provision for costs where the complainant is a non-resident. Judge Yerkes, in Smoot v. Harrah, 5 W. N., 147 (1878), stated that the proper practice in equity was to make a formal motion, but the court in that case made absolute the rule which had been taken as in a suit at law. If necessary, the forms above referred to can be readily changed to conform to the language of Judge Yerkes. § 5306. Corporations may sue, using the corporate name. They should add that they were duly incorporated by (or under) the Act of the 102 WHO MAY SUE IN EQUITY. General Assembly of the State of Pennsylvania (or as case may be) Approved, etc. § 5307. Joint Stock Companies, although not incorporated, have been allowed in England to sue using the names of a few on behalf of themselves and of all. The history of these companies and of the legislation affecting them is well detailed by Lord Eldon in Van Sandau v. Moore, 1 Euss., 441, 468 (1826). Unless author- ized by statute it may be doubted whether this practice would be recognized in Pennsylvania. § 5308. Unincorporated Associations^ A member of an unincorporated association cannot bring a suit in his own name for the benefit of the association without exhibiting the articles or instrument giving him such right. Mere assertion that the members are numerous and that the plaintiff was especially authorized to bring the suit is not enough. Habicht v. Pemherton, 4 Sandford (N. Y.), 657 (1852). In Hedge and Horn's Appeal, 63 Pa. St., 273 (1869), Judge Agnew defined a joint stock company to be "a partnership whereof the capital is divided, or agreed to be divided, into shares, and so as to be transferable without the express consent of all the copartners." Judge Tetjnkby, in Ash v. Guie, 97 Pa. St., 499 (1881), held that voluntary associations or clubs, for social and charitable purposes, and the like, are not proper partner- ships, nor have their members the powers and responsibili- ties of partners. § 5309. Stockholders may sue directors or other members, and they may sue on behalf of themselves and the other members. By Act of May 4, 1S93 (P. L., 29), equity jurisdiction was extended to "all litigation and disputes between stock- holders and parties claiming to be stockholders, and be- tween creditors and stockholders and creditors and the WHO MAY SUE IN EQUITY. 103 corporation, of all corporations within the State." Service of process upon the company to be considered as a service upon one of the principal defendants, as provided in § 1 of Act of April 6, 1859. A stockholder in a bank may obtain fin injunction against its officers who are acting contrary to law and en- dangering the existence of the charter. Manderson v. Bank, 28 Pa. St., 3Y9 (1857). § 5310. Liability of Directors. Directors are not liable to stockholders for mistakes in judgment, but are responsible for losses from fraud, gross inattention, through which agents have been able to com- mit fraud, breach of trust, embezzlement and willful mis- conduct. Spering's Appeal, 71 Pa. St., 11 (1872). Where the act complained of can be ratified by the cor- poration the stockholder cannot sue in the first instance. As where the officer has converted assets, or a stranger has injured the corporation, the stockholder must first re- quire the corporation to sue. Greaves v. Gouge, 19 N. Y., 154 (1877); Black v. Huggins, 2 Tenn. Ch., 780 (1877). If it refuse to act he can sue for himself and others, making the corporation a party. The English cases are collected in Hazard v. Durant, 11 E. I., 195 (1877). He is even excused from making the request, if it be clear that it would be useless. Brewery. Theatre, 101 Mass., 378. In this case three bills were filed. In the first it was charged that illicit gains were derived by one Tompkins from his secret interest in two leases to Jarrett in violation of his trust as director, and shared in by the other defendants in fraud of the corporation. The second bill set forth like gains derived from a lease to Booth and Clark by Tompkins and Thayer through the fraudulent collusion of the other defendants as directors. The third bill set forth like gains from three leases to Booth by Tompkins and Thayer. The other de- fendants were charged with fraudulent collusion. It was held that the bills were not multifarious. The opinion of Brewer, J., gives a clear exposition of the law. It was ruled that : 104 "WHO MAY SUE IN EQUITY. A bill in equity by stockholders of a corporation, in behalf of them- selves and the other stockholders, for fraud and conspiracy, whereby the interests of the corporation have been sacrificed, brought against the corpo- ration and persons who were its directors in former years, and others, can- not be maintained, if it does not show either that an effort has been made to set the corporation in motion to redress the wrong, or an application been made to the board of directors in office at the time of bringing the bill, or that such effort or api)lication would be useless ; and this require- ment is not satisfied by an allegation that a majority of the directors are acting in the interest and under the control of persons charged with the fraud. A bill in equity brought by stockholders of a corporation, in behalf of themselves and the other stockholders, against the corporation, and against certain directors and other individuals, for fraudulently conspiring to lease the corporate property on improperly low terms and to share in the profits of the lessees, which alleges that individual defendants own or control a majority of the stock and control the proceedings at the stockholders' meetings, and that a majority of the directors are knowingly and fraudulently colluding with them to continue to them the control of the corporation and its property, sufficiently shows that no redress can be obtained thi-ough the corporation or the directors, and that neither the lessees, nor all, nor a majority of the directors, are necessary parties to the bill. The recital, in a bill in equity for fraud, of other frauds by some of the defendants, which are the subject-matter of another bill in equity filed by the same plaintiff at the same time, does not make the biU multifarious, nor can he be compelled to elect on which bill he will proceed. The case of Foss v. Harbotfle, 2 Hare, -101, is often cited against a stockholder's bill. Brewer, J., says of it (101 Mass., 39T) : " We do not think the authorities cited in support of the demurrers are in conflict with these positions. The leading case relied on {Foss v. HarboHle, 2 Hare, 461) was a bill to set aside a sale of property to the corporation. It was dismissed because it did not exclude the supposition, tliat the proprietors might lawfully con- firm the transactions ; nor show that all means had been resorted to and found ineffectual to set the corporate body in motion, or that such efforts would have been useless. It involved, of course, a surrender of the property by the cor- poration." The Vice-Chancellor, Sir James Wigram, in his opinion, p. 492, remarks as follows : " If a case should arise of injury to a corporation by some of its members, for which no adequate remedy remained, except that of a suit WHO MAY SUE IN EQUITY. 105 by individual corporators in their private characters, and asking in such character the protection of those rights, to which in their corporate character they were entitled, I cannot think that the principle so forcibly laid down by Lord CoTTENHAM in Wallworth v. Holt, 4 Myl. and Cr., 619, 635, and other cases, would apply ; and the claims of justice would be found superior to any difficulties arising out of technical rules respecting the mode in which corpora- tions are required to sue." § 5311. As to Eight of a Corporation to Buy and Sell, Re-issue or Divide its Stock. It is well established that the capital fund or stock contributed — of a corporation — to the extent of creditor's interests — is deemed a trust fund both as to creditors and shareholders — charged with the payment of corporate debts, and must be so treated by the corporation. Morawitz on Corporations, §§ 780, Y81 ; Taylor on Corporations, §§ 756- 760 ; Wood v. Dunner, 3 Mason, 311 ; Fox's Appeal, 93 Pa. St., 417 ; Bank v. Bastian, 10 W. N., 71 ; Sanger v. Upton, 91 U. S., 60 ; Li re Columbian Bank, 117 Pa. St., 422. It clearly follows that the fund cannot be diminished or withdrawn by those having it in charge to the injury or prejudice of creditors or shareholders. The law of England is uniform, that without an express or very clear power in that behalf corporations cannot— whatever the nature of their business— deal in their own shares. Taylor on Corporations, § 134, and authorities cited. In America the weight of authority clearly indicates that there is nothing in itself illegal or ultra vires in the purchase of its own shares by a corporation. Taylor on Corporations, § 135. To the same effect see Coleman v. Oil Co., 51 Pa. St., 74. Contra : Coppin v. Qreenless, 38 Ohio, 275 ; State of Ohio V. Bank, 10 Ohio, 97 ; Bank v. Kuhler, 19 Kan- sas, 60. The most liberal declaration of the right of a corpo- 106 WHO MAY SXJB IN EQUITY. ration to purchase its own stock is found in Massachusetts, in Durpee v. Power Co., 114 Mass., 37, where it is said : " In the absence of legislative provision to the contrary a cor- poration may hold and sell its own stock, and may receive it in pledge or in payment in the lawful exercise of its cor- porate powers." The following decisions are kin to this : Bwy. Co. v. Mar- seilles, Xi 111., 145 ; Bank v. Transportation Co., 18 Vt., 131 ; Page v. Smith, 48 Vt., 285. It may, however, be admitted that a corporation may re- ceive its stock in payment of debts due to it. Bank v. Fox, 11 N. Y., 507 ; Ex parte Holmes, 5 Cowen (N. Y.), 426 ; Taylor v. Miame Co., 6 Ohio, 176 ; Williams v. Manfg. Co., 3 Md. Chanc, 452 ; Bank v. Fox, SBlatch., 432. Where a corporation takes its stock in payment of a debt due, it may, under the general power vested in its direct- ors, sell such stock again. Bank of Ohio v. Fox, 3 Blatch- ford's C. C. Eep., 431 (1856). Where banks take their own stock in payment of debts due them, it has always been the understanding and prac- tice that they were authorized to re-issue the stock when- ever they thought fit to do so. Williams v. Manfg Co., 3 Maryland Ch. Dec, 419,(1851). In the absence of prohibition by statute, a corporation may purchase its own stock, hold it unextinguished and re- issue the same. Bank v. Bruce, 17 N. Y., 507 (1S5S). To the same effect, In re Reciprocity Bank, 22 Id., 9 (1860) ; Trust Co. v. Harris, 2 Bosworth (N. Y.), 90 (1857) ; Dock V. Jute Co., 167 Pa. St., 370 (1895). Where tlie shares of a company are transferred to it in payment of certain indebtedness, the corporation may hold and sell it as its property. C. P. & S. W. B. R. v. Mar- seilles, 84 111., 645 (1877). A bank has the power to purchase and again sell its own stock. Robinson v. Beall, 26 Ga.. 17 (185S). Where a corporation purchased a furnace for which it paid in stock, and contentions arising, the seller received his furnace back and transferred his shares, Held, The transfer was legal. Morgan v. Lewis, 46 Ohio, 1 (1888). WHO MAY SUE IN EQUITY. 107 Owen, C. J. : "Contentions arose. * * * Many of them (the stockholders) blamed Morgan for having induced the company to make the purchase. Thereupon they proposed * * * that Morgan take back the furnace and restore the company the stock he had received for it. ■'•■ * * Nobody could possibly be hurt by a rescission. ■■'' '■'" •■ There was nothing in the way of the company re-issuing this stock." The fact of merger depends largely on intention, and this rule applies to a case where a corporation purchases shares of its own stock. The purchase suspends the right to vote on the stock, and may or not have the effect of a merger at the option of the company. The act of the com- pany is the best evidence of its intention. State v. Page, 48 Vt., 266 (1876). In the absence of any statute to the contrary, a corpora- tion may purchase and dispose of its stock, provided the same is done in good faith without intent to injure the creditors thereof and they are not injured thereby. Nat^ Bank of Salem v. Flour Mills Co., 39 Fed. Eep., 89 (1889) (0. C. Dist. of Oregon). When a corporation has competently purchased shares of its own stock it may hold them unextinguished and re- issue them. Taylor on Corporations, § 137. To the same effect are Comm. v. B. B., 1-13 Mass., 146- (1886) ; Ckqjp V. Peterson, 104 III, 26 (1883). The right to purchase and re-issue in proper cases seems to be conceded in Pennsylvania. Kiminel v. Stover, 18 Pa. St., 1.5.5 (1851). In Colernan v. Oil Co., 51 Pa. St., 74 (l'^65), a com- pany bought in shares of its own capital stock and after- wards divided them among the then stockholders j3?-o rata. A stockholder who had, between the time of the purchase and the time of distribution, assigned a part of his stock, sued the company for a pro rata of the shares on the basis of the number held by him at the time of the purchase. Held, That the plaintiff could not recover upon the basis claimed. Stock dividends declared out of the earnings are income and distributable. Simpson \. Moore, 30 Barb., 637 ; Biggs 108 WHO MAT SUE IN EQUITY. V. Cragg, 26 Hun, 89 ; Goldsmith v. Swift, 25 Hun, 201 ; Williams -v. Tel. Co., 93 N. Y., 162. § 5312. Stockholders may Sue for Dividends. Directors have no power to rescind dividend, without consent of stockholders. A dividend declared by a corporation becomes the indi- vidual property of the stockholder. It may be demanded by the stockholder, and if payment is refused, he may bring an action against the company for money had and received to his use. King v. B. R. Co., 29 N. J. Law Eep., 82 (1860). A dividend properly declared by the directors of a cor- poration cannot subsequently be revoked ; those persons who were shareholders on the books of the company at the time when the dividend was declared, have a legal claim against the company for the payment of the amount of the dividend. 1 Morawitz on Corporations, § 445. A distinction exists between the shareholder's right to have a dividend declared, and his right to a dividend already declared. In the latter case the directors cannot refuse to pay it because they have determined to establish a surplus fund with a view to benefit the corporation and its stock- holders. The dividend has already become a debt, and can- not be disposed of without the consent of the person entitled to it, and is subject to garnishment or attachment or execu- tion like other debts. 1 Spelling on Corporations, § 446. § 5313. Right of Stockholder to Sue where Corporation Refuses. It may be generally understood that a member of the corporation can sue for redress of all acts ultra vires ; for fraud ; for acts tending to deprive him fraudulently of his vote ; for acts by the majority tending to their enrich- ment at the expense of the minority. Where time permits, it is safer to recite the acts complained of and serve notice on the corporation requesting it to sue, tendering costs and security. Allowing a reasonable time, suit can then be brought embracing the corporation as a co-defendant. "WHO MAY SUE IN EQUITY. 109 In Shmv v. Canal Co., 41 Leg. Int. ,165 (1884), the plaint- iffs, non -assenting stockholders in a corporation which had donated a majority of its stock to another corporation, which had agreed to develop the property of the first- named company, were allowed to sue without first calling upon the latter to seek redress. In Holton v. Rivy. Co., 138 Pa. St., Ill (1890), the Su- preme Court said that a bill to enforce the rights of the corporation must be brought by and in its name ; or, if brought by a stockholder, the bill must contain an averment of a demand upon the corporation to bring suit and a refusal to do so. g 5314. If the Bill be brought in the U. S. Courts, the 94th Rule in Equity requires that the stockholder swear to his bill; that he aver he was a shareholder at the time named ; that the suit is not collusive ; and he must set forth with particularity his efforts to get the corporation to sue, etc. § 5315. Creditors of a Corporation. may file a bill against the corporation and its stockholders, to fix the plaintiff's claims, and for a receiver to collect unpaid subscriptions to the stock, for payment of such claims. Lane's Appeal, 1U5 Pa. St., 49 (1884); BelVs Appeal, 115 Id., 88 (1886) ; Bailey v. R. B. Co., 139 Pa. St., 213 (1890). § 5316. Paupers. So far back as the reign of Henry VII., the English Parliament enacted a statute (11 Hen. VII., c. 12): "A mean to help and speed poor persons in their suits." It declared in substance "that every poor person which * * * shall hereafter have cause of action * * * shall have * * * writs * * * therefore nothing paying " for seals or to clerks for writing, and also learned counsel without any reward, etc. This statute is reported as in force in Penn- 110 "WHO MAT SUE IN EQUITY. sylvania. Eoberts' Digest, 116. It was supplemented in England by J;lie statute of 2 Geo. II., c. 28, declaring "what persons sued by capias may defend in forma pauperis." The statute applies alike to courts of law and equity. The 3d Equity Eule, § 14, of Pennsylvania, exempts pauper plaintiffs from the obligation to print their bills in equity. After requiring this from other suitors, it pro- vides: "This rule shall not apply where counsel shall certify that his client by reason of poverty is unable to pay for the same. " It then directs the service of one written copy, etc. The privilege of suing as a pauper does not extend to an executor or an administrator. Paradice v. Sheppard, 1 Dick., 136 (1Y15). Nor can a prochein ami sue in forma pauperis. Anon., 1 Ves. Jr., 410 (1792). A person claiming title to land taken under a sequestra- tion, and being unable to prosecute her claim, was permitted to proceed in forma pauperis. James v. Dore, 2 Dick., Y88 (1744). In Fitton v. Com' Macclesfield, 1 Vern., 264 (1684), a pauper was allowed to bring a bill for a review without payment of costs. In Corbett v. Corhett, 16 Ves., 410 (1810), this seems to have been condemned by Lord Eldon, and the practice vindicated of courts of law staying a second suit until the costs of the first were paid. In Taylor v. Bouchier, 2 Dick., 504 (1774), it was held that a pauper could not appeal. § 5317. Paupers may be Dispaupered. Where a suit is vexatiously conducted, the pauper plaintiff may be dispaupered. Wagner v. Mears, 3 Sim., 127 (1829) ; Wliitelocke v. Baker, 18 Ves., 511 (1807). At law the pauper might be whipped for this offense. Lord Loughborough said, in Pearson v. Belchier, 4 Ves., 628 (1800), that a pauper filing an improper bill might be com- mitted. WHO MAY SUE IN EQUITY. Ill § 5318. Defendants may be Admitted to Defend In Forma Pauperis. Wallop V. Warburton, 2 Cox, 409 (1795) ; Denn v. Bussell, 1 Dick., 427 (1769). § 5319. Allowance Made to Pauper. Where an heir-at-law claimed against a will not proved and a deed disputed, his bill in forma pauperis was retained with leave to sue at law and the tenants were ordered to pay him £150 to enable him to proceed. Perishal v. Squire, 1 Dick., 31 (1718). It is very doubtful whether such an order could be made in Pennsylvania. § 5320. Petition to Sue In Forma Pauperis. In England the plaintiff petitions the Master of the EoUs, stating the case briefly, asking to be admitted to sue in forma pauperis, and that a counsel and clerk be assigned to him. Counsel must certify that ' ' he conceives the plaint- iff has just cause to be relieved touching the matter of the petition for which he had exhibited his bill." The plaintiff must attach his own affidavit that, besides his wearing apparel and the cause of action, he is not worth £5 after payment of his just debts. 4 Ves., 630. If the Master of the Rolls write an order granting the petition, a counsel and clerk are assigned. The clerk appoints one of the sixty clerks to act as solicitor. ISTo one is permitted to charge or to contract for a fee. So highly favored is the plaintiff that his counsel must give the pauper's motion precedence. g 5321. Costs to Pauper. It was said that if the pauper obtain a decree, he can only recover costs actually paid or to be paid. Angell v. Smith, Prec. Ch., 219 (1703) ; Denn v. Russell, 1 Dick., 427 (1769). But this was doubted by Lord Somers, Lord Loughborough, Lord Alvanley and Lord Eldon. Hauton v. Hagre, cited Prec. Ch., 220 ; Wallop v. Warhurton, 2 Cox, 409 (1795) ; Rattray v. George, 16 Ves., 238 (1809). 112 WHO MAY SUE IN EQUITY. In England a party suing in forma pauperis is not now bound to have counsel or solicitor assigned to him ; he can appear in person. Tucker v. Collinsen (App.), 55 Law J. Eep., Q. B., 224 ; Law Eep., Q. B. D., 562. g 5322. Security for Costs where Poverty Alleged. Generally, in cases of insolvency, or where the costs of a former suit are unpaid, security will be ordered. The C. 0. U. S. (E. D. Pa.) Eule at Law XL provides for security "where a defendant, or other person for him, shall make affidavit that he believes the costs could not be recovered of the plaintiff by attachment or execution." It was decided in Brace v. Evans, 6 C. C. Rep., 19 (1888), that a defendant in an equity proceeding cannot be re- quired to give security for costs. It was alleged in that case that the defendant was irresponsible. The U. S. Statute of July 20, 1892, Chap. 209, permits any citizen of the United States to sue in the U. S. courts without paying fees or giving security, upon filing affidavit of inability. Court may assign counsel if cause deemed worthy, or may dismiss if allegation of poverty untrue. CHAPTER V. WHO MAY BE SUED IN EOUITY. § 5323. United States Cannot be Sued, save as they may permit suit to be brought, as in the Court of Claims. No State can be sued by any person or corpora- tion. One State can be sued by another State. If the United States or a State appear as a plaintiff, the defendant can protect himself by setting up any counter- claim. § 5324. Liability of a Sovereign. As a general rule a sovereign cannot be suea. Duke of Brunswick v. King of Hanover, 2 H. L. Cases, 1 (1848). But if a sovereign file a bill he may be made the subject of a cross-bill, and if he purchase property, stocks, etc., the thing thus bought and the officers holding the same may in general be proceeded against. Thus, if the State pur- chase a property subject to a mortgage, and the debt be not paid, the mortgagee can foreclose. If the sovereign should became the owner of a mortgage, and sue it out, the mortgagor could set up any defense which would be avail- able against a private person. This has been ruled even in England ; Lutwich v. The Attorney-General, cited in 2 Atk., 223 (iTil) ; Casberd v. The Attorney-General, 6 Price, 411 (1819) ; and in Reeve v. Attorney-General, 2 Atk., 223 (1741), Lord Hard wicke thought the Exchequer could grant the relief sought, namely, the performance of a trust against the Crown. The Prins Frederik, decided in 1820 (2 Dodson's Admir- 8 , 113 114 WHO MAT BE SUED IN EQUITY. fJty Rep., 451), was a libel by salvors against a ship of war belonging to the King of the Netherlands. Sir William Scott said : " The first application for a recompense, in the nature of salvage, ought, in the case of a ship of war belonging to a foreign State, to have been made to the representative of that State, resident in this country. * * * It is not reason- able to suppose that jjrivate individuals in this country should go unrewarded for services performed to the ships of foreign governments. * * * A warrant of detainer is sued out of the Court of Admiralty, which begets a delicate quo^stion of jurisdiction in international law. * * * I ad- judge the sum of £800 to be paid to these salvors, together with their expenses." Gladstone v. Musurus Bey, 1 Hemming and Miller's Chanc. Rep., 495, was decided in 1862. The plaintiffs there projected a company to carry on banking business at Con- stantinople. The Turkish Government made a firman or concession, which received the Sultan's assent and was ac- cepted by the concessionaires on the understanding, as the plaintiffs alleged, that the Sultan would withdraw all exist- ing kaimes or paper money in his dominions, and that no further issue should be made during the existence of the bank. Certain securities were to be deposited by the plaint- iffs in the Bank of England in the name of the Turkish ambassador in London, as security for the execution of the contract. An additional article of agreement was made by which the operations of the bank should commence three months after the withdrawal of all paper money. Ulti- mately the Sultan refused to ratify the additional article, and the kaimes not having been withdrawn, the majority of the shareholders in the company had their money returned. The directors of the bank declined to commence business until the kaimes were withdrawn, and Musurus thereupon threatened to withdraw the deposited securities as forfeited unless the concessionaires would give up their firman. The plaintiffs filed a bill praying a declaration that the deposit had not been forfeited, and for an injunction ..against Musurus and Bank of England and the Sultan, to WHO MAY BE SUED IN EQUITY. 115 Testrain the delivering of the deposit to any persons other than the plaintiffs. Vice-Ohaiicellor Sir W. Page Wood said : " ■ If the trust funds were invested in his name in the Bank of England, it is quite true I could not deal with him (the ambassador) on account of the impossibility of any process being had against an ambassador. But the funds being in the Bank of England, it appears to me clear that I could in such a state of circumstances prevent the Bank of England from handing it over to the ambassador, upon a distinct intiixiation on his part that he intended to apply it to his own use ""' ""' """ though I cannot hold this gentleman here, because he is an ambassador, yet the fund being here, this court has jurisdiction to prevent that fund being wasted. * "••' * " Lariviere v. Morgan, 4-1 Law Journal (Chanc), T-i6, was decided in 1873. It was there held that if a foreign govern- ment or state having notice of a suit instituted in England for the administration of a fund in which it is entitled to claim an interest, does not appear and submit its rights to the jurisdiction of the court, the court will proceed in its absence. In November, is TO, the French Government instructed their bankers in London to open a special credit in favor of the plaintiff for -£10,000, to be paid to him rateably as certain goods contracted to be supplied by the plaintiff should be delivered. Part of the contract was performed and a pro- portionate part of the money was paid to the plaintiff, but a dispute having arisen as to the rest of the contract, the plaintiff filed his bill against the bankers and the French Eepublic, for a declaration and performance of the trusts of the residue of the £10,000. The French Eepublic did not appear. It was held, That the court had jurisdiction over the fund, and in the absence of the French Eepublic would pro- ceed to ascertain, as it best could, the rights of the parties who appeared. The Lord Chancellor, (Hatheeley) said : ''Sol appre- hend we must ascertain as we best can, in the absence 116 WHO MAY BE SUED IN EQUITY. of those parties who do not appear, the rights of the persons interested in the fund who do appear. There may be many cases in which a foreign government has some interest, but the other parties interested must not suffer because it is impossible to compel the attendance' of one of those who might claim the fund. * * * I assume that the comity of nations extends * * * and that the- French courts would recognize a decision of a court of com- petent jurisdiction in a country where the property is sit- uated and where the rights have been properly tried." The Charhieh, 42 Law Journal Eeports (N. S.), Admir- alty, page 17 (1873). The Charhieh was an iron screw steamer belonging to the Khedive of Egypt. She was a part of the Imperial Ottoman navy, carrying the naval pennant and ensign used by all ships of the Egyptian navy as distinguishing them from merchant vessels. Her officers held commissions from the Khedive, and were under the directions of the Minister of Marine. For some time before the occurrence which gave rise to the suit, the vessel was engaged in carrying mails, passengers and cargo between Alexandria and Constantinople. In September, 1871, she was sent to England for the purpose of being repaired. She carried a cargo with her. Having completed her repairs, she was advertised for the return voyage, and while making a trial trip of her machinery she came into collision with the steamship Batavier in the River Thames. TJie Charhieh was arrested. In November, 1872, the Khedive applied to the Court of Queen's Bench to restrain the Court of Admiralty from proceeding further in the suit instituted in that court. The Queen's Bench refused the prohibition, expressing no opinion on the case, and simply deciding that the question involved was one upon which the Court of Admiralty was specially qualified to adjudicate. An ap- pearance was then entered under protest, and the argument presented some interesting questions. The libellants denied that the Khedive was entitled to the privileges of a sov- ereign prince. They contended, secondly, that even these privileges would not protect his ship from arrest in a suit for damage by collision. And lastly, that if both these WHO MAY BE SUED IN EQUITY. 117 questions should be decided against them, still the privilege, if it existed, had been waived by the employment of the ship as a trader. The judgment of Sir R. Phillimore is well worthy of a careful perusal. He seems to have studied with great industry not only the general history of Egypt, the firmans of the Ottoman Empire on this subject, but the European treaties which concerned the relations between Egypt and the Porte. In addition to this he consulted the Foreign Office. From these various sources the learned judge collected a vast amount of information of interest to the historian. The conclusion of that branch of the inquiry was against the position assumed for the Khedive, Egypt having no independent army or flag, and never having been recognized as a sovereign State by the English Government. Had the decision been placed upon this ground the case would have been no authority on this point. But the learned judge went further. The cases, European and American, were patiently analyzed, and the court ruled that even the privilege of a sovereign prince would not ex- tend to immunity of the ship from arrest in a suit for damage by collision ; and that if the privilege did extend to such an immunity, it had been waived in this case by the employment of the ship at the time as a trader. He added (page 36) : ' ' No principle of international law, and no decided case, and no dictum of jurists, of which I am aware, has gone so far as to authorize a sovereign prince .to assume the character of a trader, when it is for his benefit, and when he incurs an obligation to a private subject to throw off, if I may so speak, his disguise and appear as a sovereign, claiming for his own benefit, and to the injury of a private person, for the first time, all the attributes of his character." § 5325. When a Suit against an Officer will be regarded as a Suit against the State, It is conceded that under some decisions a suit against a State or United States ofBcer in his official character is a suit against the State or United States. Where the gov- 118 "WHO MAY BE SUED IN EQUITY. ernor of a State is sued, not by name, but by his style of office, and the claim made upon him is entirely in his official character, the State itself is to be deemed the real party. Governor of Georgia v. Madrazo, 1 Peters, 110 (1828); State of Kentucky v. Dennison, 21 Howard, 66 (1860). So a libel in admiralty against the governor of a State as governor, demanding property in the possession of the State Govern- ment, is a suit to which the State is a party. Before the adoption of the Eleventh Amendment to the Constitution of the United States, the liability of a State to a suit at the hands of a private citizen was fully admitted. Chrisholm v. State of Georgia, 2 DalL, 419 (1793); Grayson V. State of Virginia, 3 DalL, 320 (1Y96) ; and see Hollings- worth V. State of Virginia, 3 DalL, 3Y8 (1798). The Amendment was in these words : " The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State." The adoption of this Amendment, which followed closely upon the decision in Chrisholm v. State of Georgia, above cited, was undoubtedly owing in part to an apprehension of the evils which might result from a possible conflict between the judicial power and theexecutiveof a sovereign State, and in part from a fear that the dignity of a State might be lowered by subjecting the sovereign to the chances of a suit at the hands of a private citizen. But the steady aim of the court seems to have been to restrict the operation of this Amendment within certain fairly defined limits, and properly — for much of the reasoning which in the English law forbids the institution of a private suit against the Crown, is in reality offensive to the conceptions which in this country prevail as to the relations between the Govern- ment and the governed. The whole doctrine of sovereignty is based in the first place upon feudal principles. ' ' That system considers the prince as the sovereign, and the people as his subjects ; it regards his perso)i as the object of alle- giance, and excludes the idea of his being on an equal foot- ing with a subject, either in a court of justice or elsewhere." WHO MAY BE SUED IN EQUITY. 119 Per Jay, C. J., ChrisholmY. Georgia, 2 Dall., 471. It is in this sense only of sovereignty, as existing between master and subject, that a suit between a citizen as plaintiff, and a State as defendant, would seem to be incompatible with the dignity of the latter. But in point of fact thcs? conditions are wanting with us. The citizen is not a sub- ject, nor is he an inferior, nor is he precluded from suing any number of his equally free fellow-citizens, even though that number should embrace the entire population of the State. The sovereignty then which with us exists in the people in their collective character, does not rise higher in dignity than the source from which it emanates. Nor is there more force in the argument of danger from a possible conflict between different branches of the Gov- ernment. The doctrine of the English cases upon this point is entirely based upon the relations which obtain between foreign sovereignties. There is much force in the reason- ing of Lord Campbell, C. J., in De Haher v. Queen of Portugal, 17 Adol. & EL, 207 (1851), decided at the same time with Wadsworth v. Queen of Spain (Id., 315) : "It is quite certain upon general principles, and upon the author- ity of the case of Tiie Dvke of Brunswick v. The King of Hanover, 2 IT. L. Cas., 1, that an action cannot be maintained in any English court against a foreign potentate, for any- thing done or omitted to be done by him in his public capacity as representative of the nation of which he is the head ; and that no English court has jurisdiction to eDter- tain any complaints against him in that capacity. * "'•' * To cite a foreign potentate in a municipal court for any complaint against him in his public capacity is contrary to the law of nations, and an insult which he is entitled to resent." But it is manifest that a vast distinction may be taken between a suit instituted by a British subject in the courts of Great Britain against a foreign potentate, and a suit brought by a citizen of one State against another State under the same Federal Government and in a Federal court. It is evident, therefore, that the doctrine of sovereignty 120 "WHO MAY BE SUED IN EQUITY. with its peculiar privileges, as it exists in England, is, in a large measure, out of place in our own jurisprudence, and the current of decisions in this country seems to proceed upon this idea. The principle of interpretation of the Amendment to the Constitution, which may fairly be ex- tracted from the cases, is that a State, acting in the full exercise of its legitimate powers of sovereignty, may not be interfered with by a private citizen ; but that when a State quits its sphere of rulership and engages in the ordi- nary avocations of citizenship, it throws aside to that ex- tent its dignity and immunities, and subjects itself to the full operation of the laws which govern those avocations. It is worthy of remark that even the English cases rec- ognize the correctness of this view. In the course of the argument in Wadsworth v. Queen of Spain and De Haher V. Queen of Portugal, above cited, Lord Campbell observed (page 194) : " There may in any country be private property of a foreign prince, to which these remarks (that an attempt to compel obedience to any process or order of court against the person or property of a sovereign prince would be deemed a hostile aggression) would not apply." And in DuJce of BrunsivicTc y , King of Hanover, cited in the above decision, at the Rolls, 6 Beavan, 1 (lS4i), Lord Langdale, after observing that (page 35) "the law of England affords no authority for the proposition, that sovereign princes resident there may not be sued in the courts," cited De La Torre v. Bernales, 1 Hov. Supp. to Vesey Jr. Eep., 149, where Vice-Chancellor Sir John Leach ordered the King of Spain to be named as party to a suit, the object of which was to charge Bernales in respect of acts done by him as the King's agent. Madrazo's suit against the Governor of Georgia, 1 Peters, 110, and KentucTcij v. Dennison, 24 How., 66, have been cited above. The first was a case against a State, the object being to take from her certain slaves, and the proceeds of other slaves which had been sold— the slaves and the money being altogether in the possession of the State, and no part thereof having come within the jurisdiction of the WHO MAY BE SUED IN EQUITY. 121 ■court. There was a dissenting opinion by Mr. Justice Johnson. Kentucky v. Deymison, 24 How., 66, was a motion for a rule on Mr. Dennison, as the Governor of Ohio, to show cause why a mandamus should not issue, commanding liim to surrender a fugitive from justice. Mr. Chief Justice Taney, reviewing the cases in 2 Dallas, 3 Dallas, and 1 Peters, maintained the jurisdiction of the court, but refused the rule, because the court could not enforce the mandamus if granted. In Beers v. Arkansas, 20 Howard, .527, the State of Arkansas at first passed a law allowing herself to be sued. Slie then repealed it, and the court simply decided that the repealing act was valid. g 5326. Wlieii a State is Liable. An examination of the cases will show that the Eleventh Amendment, while it forbids suits against States, has always been restricted to proceedings against a State in her sover- eign capacity. A State has never been allowed this im- munity when she descended from her dais and entered the markets of the world as a trader. In that case her prop- erty', if once brought within the jurisdiction of a court, must, like all other property, be the subject of the law's adjudication. Nor has a State ever been allowed to appro- priate property charged with a trust. And lastly, her offi- cers, acting ministerially, can always be proceeded against by injunction or mandamus. In Osborn v. Bank of U. S., 9 Wheaton, 739, jurisdiction ivas maintained against a State, though she was not a party except through her auditor and treasurer. Mr. Chief Justice Marshall said (page 338) : " The original bill prays for an injunction against Ealph Osborn, auditor of the State of Ohio, to restrain him from executing a law of that State, to the great oppression and injury of the complainants (to collect a tax from all banks). * * * The true inquiry is whether an injunction can be issued to restrain a person who is a State officer from performing 122 WHO MAY BE SUKD IX KQtJITY. any official act enjoined by statute, and whether a court of equity can decree restitution if the act be performed. * * * If the State of Ohio could have bpen made a party defend- ant, it can scarcely be denied that this would be a strong- - case for an injunction. The objection is, that as the real party (the State) cannot be brought before the court, a suit cannot be sustained against the agents of that party. * * * But if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong, which they would afford against him could his principal be joined in the suit. It is admitted that the privilege of the principal is not communicated to the agent ; * * * why should not the preventive power of the court • also be applied to him ? * * * The sixth point made by the appellants is, that if any case is made in the bill proper for the interference of a court of chancery, it is against the State of Ohio, in which case the Circuit Court could not exercise jurisdiction. * * * The interest of the State is direct and immediate, not consequential. The process of the court, though not directed against the State by name, acts directly upon it by restraining its ofScers. * * * The Eleventh Amendment of the Constitution has exempted a State from the suits of citizens of other States, or aliens, and the very difficult question is to be decided, whether in such a case the court may act upon the agents employed by the State, and on the property in their hands. * * * The principle seems too well established to require that more time should be devoted to it. It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently the Eleventh Amendment is of necessity limited to those suits in which a State is a party on the record. The State not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is WHO MAY BE SUED IN EQUITY. 12?. not one of jurisdiction, but whether in the exercise of its jurisdiction the court ought to make a decree against the defendants, whether they are to be considered as having a real interest, or as being only nominal parties. * * * It is in a court of equity alone that the relief would be real, substantial and effective." The ruling in Osborn v. Bank was affirmed in Davis V. Gray, 16 Wallace, 203 (18Y2). The language of Mr. Chief Justice Marshall, in U. S. Bank v. Planters' Bank, 9 Wheaton, 90Y (1821), has been frequently quoted. He says : ' ' It is, we think, a sound principle that when a govern- ment becomes a partner in any trading company, it divests- itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citi- zen. Instead of communicating to the company its pi Iv- ileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. * * * The State of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a govern- ment never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the manage- ment of the affairs of the corporation than are expressly given by the incorporating act. * * * Tlie Government, by becoming a corporator, lays down its sovereignty so far as respects the transactions of the corporation and ex ercises no power or privilege which is not derived from the charter." The same principle was declared in the following cases : Cohens v. Virginia, 6 Wheat., 204: (1821) ; i Bank of ' Cohens v. Virginia, 6 Wheaton, 264 (1821). Opinion by Marshall, C. J. (440). Writ of Error to the Quarterly Session Court for the Borough of Norfolk, Virginia, it being the highest court of law of that State having jurisdiction of the case. A Virginia statute of January 1, 1820, prohibited lotteries. Congress,, 124 "WHO MAY BE SUED IN EQUITY. Kentucky v. Wister, 2 Pet., 318 (1829) ; ^ Briscoe v. Bank of Kentucky, 11 Pet., 25 (1837) ; Louisville Railroad Company r. Letson, 2 How., 497 (1844) ■,^ Darrington v. Bank of Alabama, 13 How., 12(1851); Cur ran y. Arkan- sas, 15 How., 304 (1853) ; McGee v. Mathis, 4 Wall., 143 ;» May 3, 1802, incorporated the City of Washington. By an amended act, May 4, 1812, the corporation was empowered, inter alia, " to authorize the drawing of lotteries for eflfecting any important improvement." Cohens sold in Norfolk a lottery ticket duly issued by the corporation at Washington. Upon indictment and case stated the court below gave judgment for the Commonwealth and sentenced t]ie defendants to a fine of $100 each. They then took this writ of error. The counsel for the State (Mr. Barbour and Mr. Smyth) moved to dismiss the writ of error, because : — 1st. A State was a defendant. 2d. Because no writ of error would lie to the State court. And 3rd. Because of want of jurisdiction under the Constitution or the Judiciary Act. Mr. D. B. Ogden and Mr. Pinkney opposed the inotion and it was denied. The case was then argued by Mr. D. B. Ogden and the Attorney- General, Mr. William Wirt, for the plaintiffs in error, and bj- Mr. "Webster, ■contra. The judgment was afSrmed. ' Bank of Kentucky v. Wister et al., 2 Peters, 318 (182C). AVrit of error to the Circuit Court of the District of Kentucky. Opinion by JOHXSOX, J. (838). In an action for money had and received for the recovei-y of the amount of a deposit made in the Bank of the Commonwealth of Kentucky, acting under an act of incorporation passed by the Legislature of that State, the ■defendant pleaded to the jurisdiction on the ground that the State of Kt-n- tucky alone was the proprietor of the stock of the bank ; for which reason it was insisted that the suit was virtually against a sovereign State. The court was of opinion that the question was no longer open. Tlie case of the United States Bank v. Tlie Planters' Bank of Georgia, 9 Wheaton, 904, affirmed. " Tlie Louisville, Cincinnati Railroad Company, v. Letscm, 2 How., 497 (1844). Opinion delivered by Wayne, J. (p. 550). Writ of error from the Circuit Court of the United States for the District of South Carolina. A citizen of one State can" sue a corporation which has been created by, and transacts its business in another State (the suit being brought in the latter State), although some of the members of the corporation are not citizens of the State in which the suit is brought, and although the State itself may be a member of the corporation. ^MoGee v. Mathis, 4 Wallace, 143 (1866). Opmion by Chase, C. J. (p. 155). Error to the Supreme Court of Arl-ansas. Where a State, in order to promote the drainage and sale of certain -swamp lands belonging to it and which it was desirous of reclaiming, has passed, by way of encouraging purchasers, a law that such lands " shall be "WHO MAY BE SUED IN EQUITY. VZ5 Furman v. Nichol, 8 Wall., 4-l.i In the case of Darriwj- ton V. Bank of Alabama, 13 Howard, 17 (1851), McLean, J., says : "The State as a stockholder held its property as a corporation or an individual could hold it, in the Mobile Bank. The specie in its vaults, the notes taken on discount, and every description of property managed by the directors of the bank, were subject to judicial process by its credit- ors. A d in such a procedure the State in its sovereign capacity could not interfei-e. Its powers would be no greatt-r than the powers of individual stockholders of the bank under similar circumstances." In Woodruff v. TrapnaJJ, 10 How., 190 (1850), where it was held that a State law incorporating a bank of which the State was to be the sole stockholder, created a contract with the loanholders, which no subsequent act could im- pair, McLean, J., says (p. 207) : " We naturally look to- the act ion of a sovereign State to be characterized by a more scrupulous regard to justice and a higher morality than belong to the ordinary transactions of inclividucds. The obligation of the State of Arkansas to receive the notes of the bank in payment of its debts is much stronger than in the case of individual guaranty." The Santissiuia Trinidad, T Triieaton, 2S3 (1822). exempt from taxation for the term of ten years," and issued transferable scrip receivable for them, a repeal of tlie exemption act, so far as it con- cerns lands paid for either before or after the repeal, with scrip issued before the repeal, impairs a contract of the State with the holders of such scrip. ' Furman v. Nichol, 8 Wallace, 41 (1808). Opinion by Davis, J. (p. 55). Error to the Supreme Court of Tennessee. The provision in section 13 of the Charter of 1838, of the Bank of Ten- nessee, " that the bills or notes of said corporation, originally made pay- able, or which shall have become payable on demand, in gold or silver coin, shall be receivable at the treasury of the State, and by all tax col- lectors and other public officers, in all payments for taxes or other moneys- due to the State," made a contract on the part of tlie State with all persons, that the State would receive for all payments for taxes or other moneys due to it, all bills of the bank lawfully issued, while the section remained in force. The guaranty was not a personal one, but attached to the note if so issued ; as much as if written on the back of it. It went with the note every wliere, as long as it lasted, and although, after the note was issued,, section 13 was repealed. 126 WHO MAY BE SUED IN EQUITY. The South American Colonies of Spain were then in revolt against their mother country. Mr. Ohaytor, a citizen of the United States, saw fit to attempt to expatriate him- self, and in May, 1816, he accepted at Buenos Ayres a com- mission from the Government of the United Provinces as commander of the Independencia, a public armed vessel. Claiming that open war existed between Spain and the Provinces, he captured two Spanish vessels, the Santissima Trinidad and the St. Ander, from which he took valuable cargoes of cochineal and other merchandise. The captors brought the prize goods into the port of Norfolk. Their vessel was there acknowledged as a public ship of war, and it seems that with the consent of our Government the coch- ineal was landed in the custom house store. The Consul of Spain thereupon filed a libel on behalf of the original Span- ish owners, and claimed restitution upon three grounds. (1) That the commander of the capturing vessel, being a citizen of the United States, was prohibited by our treaty with Spain from cruising against that power ; (2) that the Independencia was originally owned and fitted out in the United States ; and (3) that her force and armament had been illegally augmented within our jurisdiction. Pending the controversy, the captors secured a condemna- tion at Buenos Ayres of the goods, and they set up as con- clusive — the legality of the capture, the adjudication at Buenos Ayres, and the immunity of the Provinces as sover- eign States from liability to answer in our courts. The Supreme Court decided that during the existence of the civil war between Spain and her Colonies, and previous to the acknowledgment of the independence of the latter by the United States, the Colonies were deemed by us belliger- ent nations, and were entitled, so far as concerns us, to all the sovereign rights of war against their enemy. They also held that the sending of armed vessels, or of munitions of war, from a neutral country to a belligerent port, for sale as articles of commerce, is unlawful only as it sub- jects the property to confiscation on capture by the other belligerent, and that no neutral State is bound to prohibit "the exportation of contraband articles. The court ruled WHO MAY BE SUED IN EQUITY. 127 that the sixth article of the Spanish treaty of 1795 appUed ■exclusively to the protection and defense of Spanish ships within our territorial jurisdiction, and provided only for their restitution when captured within the same ; — that the fourth article of the same treaty, which prohibits the citizens or subjects of the respective contracting parties from taking commissions, etc. , to cruise against the other under the penalty of being considered as pirates, is confined to private armed vessels, and does not extend to public ships. As to the augmentation of force in our ports or an illegal outfit, the court held that while it did not affect any capture made after the original cruise, for which such aug- mentation or outfit was made, is terminated, yet as to capt- ures made during the same cruise, the uniform doctrine of the court had been, that they are infected with the character of torts, and that the original owner is entitled to restitution, when the property is brotight within the juris- diction. And in reference to the point of the immunity of the sovereign, the court held that the right of restitution extended to caiJtures by public as well as by private armed ships, ai)d that the exemption of foreign public ships coming into our waters, under an express or implied license from the local jurisdiction, does not extend to their prize ships or goods, captured in violation of our neutrality. Mr. Justice Story said (p. 354) : "Whatever may be the exemption of the public ship herself, and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our courts, for the purpose of examina- tion and inquiry, and if a proper case be made out, for restitution to those whose possession has been divested by a violation of our neutrality. " In U. S. V. Wilder, 3 Sumner, 308 (1838), a lien was enforced against the property of the general Grovernment. The parties agreed to the following statement of facts : "That the schooner Jasper, from Boston to New York, went ashore on Long Island. The expense in saving the goods was to bo averaged by general average. Among the property there was clothing to the amount of $7, 320 belong- 128 WHO MAY BE SUED IN EQUITY. ing to the United States. The goods being brought back to Boston, the owners of the vessel made out an average bond for the freighters to sign. The United States declined signing the bond, claiming the right to take the goods without paying the contribution to average. The right being denied by the owners of the vessel, they refused to deliver the clothing to the United States, and this action is brought to recover the value of the clothing. If the court are of opinion that the United States have no such right, judgment to be for defendant. If of opinion that the United States have such right, the defendant shall be defaulted and the clothing given up." The court held that in cases of general average the master and owners may retain all goods of the shippers until their share of the contribution towards the average is either paid or secured, and that there was no exception to the general rule in favor of the United States or any other government or sovereignty, although there may be cases of contract where liens on the property of the Government do not attach, as on that of private persons. In cases of salvage of private ships and cargoes, the freight on board belonging to the Government is equally subject to the admiralty process, in rem, for the proportion due for salvage, with that of ixiere private shippers. The lien of seamen's and of bottomry bonds exists, in all cases, as much against the Government becoming pro- prietors, by way of purchase or forfeiture or otherwise, as against private persons. * * Sovereignty does not nec- essarily imply an exemption of its property from the pro- cess and jurisdiction of the courts of justice ; and it seems a fair inference from the duties of the sovereign in such cases, that ivhere a lien exists on property, upon general princijDles of justice, jure gentium, that lien ought to he presumed to he admitted and protected by every sovereign, until the presumption is repelled by some positive edict to the contrary." Mr. Justice Story said (p. 311) : "* * * The general maritime law enforces a contribu- tion independent of any notion of cont.-act, upon the ground WHO MAY BE SUED IN EQUITY. 129 of justice and equity. * * * And it gives a lien, in rem, for the contribution, not as the only remedy, but as, in many cases, the best remedy. * * * The very circumstance that no suit ivould lie against the United States in its sover- eign capacity would seem to furnish the strongest ground why the rem.edy in rem should he held to exist. And I do not well see how otherwise it would be practicable at all, or if practicable, how, without extreme peril to the ship- owner, any private ascertainment or settlement of the general average could be made at all. * * * In the case of mere private shipments, a court of equity (and probably a court of admiralty, also, by a proceeding in rem) would have ample jurisdiction to compel a reluctant shipper to submit to its .jurisdiction, in ascertaining and decreeing an apportionment of the contribution to be made by all the shippers * * * the freight on board belonging to the Government is equally subject to the admiralty process, in rem, for its proportion due for salvage. " ^ Curran v. The State of Arkansas, and The Bank of the State of Arkansas, 15 Howard, 304 (1863), showed these facts : In 1S36, the Legislature of Arkansas incorporated a bank with the usual banking powers of discount, deposit and circulation, the State being the sole stockholder. The bank went into operation and issued bills in the usual form, but in November, 1839, suspended specie payments. It was held, That upon general principles of law a cred- itor of an insolvent corporation can pursue its assets into the hands of all other persons, except bona fide creditors or purchasers, and that there was nothing in the character of the parties or in the laws transferring the property to make it an exception to the general rule. The opinion of the Supreme Court of the United States was delivered by Mr. Justice Curtis. He said (p. 308) : " So far as the property of this bank has become vested in the State or gone to its use, it is so vested and used, charged with a tru^t in favor of this complainant, as an unpaid creditor, unless there is something in the charac- ter of the parties, or the consideration upon which, or the 9 130 WHO JtAV BE SUED IN EQUITY. operation of the laws by force of which, it has been trans- ferred, taking the case out of the principles above laid down. * * * That a State, by becoming interested with others in a banking corporation, or by owning all the capital stock, does not impart to that corporation any of its privileges or prerogatives, that it lays down its sovereignty, so far as respects the transactions of the corjioration, and exercises no power or privilege in respect to those transactions not derived from the charter, has been repeatedly affirmed by this court." "And our opinion is that the fact that the capital stock ■of this corporation came from the State, which ivas solely interested in the profits of the business, does not affect the complainant'' s right as a creditor to be paid out of its prop- ^rty, a right which, as we have seen, follows the fund into the hands of every person, save a bona fide creditor or pur- chaser, and which a court of equity is bound to enforce by its decree against any party (except such a creditor or purchaser) capable by law of being brought within its juris- diction." Elliot V. Van Voorst et al., 3 Wallace Jr. Reps., 299 (1860), ruled that the rights of the United States Govern- ment as a sovereign, and its prerogatives as such, are co- extensive with the functions of Government committed to it. When it purchases land within a State not intended for forts, arsenals and other national uses, but merely to secure a debt, it takes the land as any other corporation, and cannot claim any of the immunities or prerogatives of a sovereign. Consequently, a mortgagee may have a valid decree in Chancery for the sale of the mortgaged land, where the United States is the owner of the equity of redemption, on a notice given in any manner the court may prescribe. The history of the title passed upon was this : Van Voorst was the original owner of a lot. He sold it to one Innes, who reconveyed it on the same day, by way of mortgage, to secure a balance of the purchase-money. Innes conveyed his equity of redemption to one Swartwout, collector of \the port of New York. Swartwout becoming a defaulter to "WHO MAY BE SUED IN EQUITY. 131 the Government, this lot was seized, sold and bid in for the United States, and a deed made by the marshal. The complainant claimed under the United States, whose title he had bought. Neither principal nor interest having been paid on the mortgage to Van Voorst, the mortgagee, for some time, and the land being vacant and unproductive, and the only remedy left to him being a sale of the land under his mortgage, he filed his bill in the Court of Chan- cery of New Jersey, to have his mortgage foreclosed and the land sold to satisfy the debt due on the mortgage. The bill set forth that the United States had become owner of the equity of redemption, and prayed that a notice of subpoena might issue to J. S. Green, Esq., attorney of the United States for New Jersey district, that he answer in behalf of the United States and show any defense against the prayer of the bill. The question presented was, whether the judicial sale by the Court of Chancery of New Jersey, to satisfy or fore- close the mortgage, was valid or void ; the respondents contending that it was void, because the United States being a sovereign, could not be sued in the State Court of New Jersey. The Circuit Court of the United States held to the contrary. Mr. Justice Grier said (p. 301) : "I am of opinion that the Court of Chancery of New Jersey had jurisdiction to effect a sale of these mort- gaged premises, in satisfaction of the lien ; that its decree and the sale under it are not void for want of jurisdic- tion." If a sovereign see fit to hold property subject to a lien, it is not possible for her to say that the privilege of immunity shall so attach itself to the property as to strip the creditor of his incumbrance, and thus spoil him of his right. Trustees of the Wabash and Erie Canal Co. v. Beers, 2 Black, 448 (1862). On appeal from the Circuit Court of the United States for the District of Indiana : — The general Government had granted to the State of Indiana certain lands to aid in the construction of a canal to unite Lake Erie with Wabash Eiver. 132 -WHO MAY BE SUED IN EQUITY. In 1832, the Legislature of Indiana authorized the board of canal commissioners to borrow $200,000, to be used in making a canal, and pledged the lands donated by the United States, and all the moneys arising therefrom, for the payment of the bonds. The rents and profits of the canal belonging to the State were also pledged ; and the State guaranteed the bonds. Two hundred bonds of $1,000 each were issued, and the plaintiff held two of them. In 1834, the Legislature authorized another loan of $400,000, and pledged the canal and the same land, and guaranteed the bonds. In 1835, the State passed an act creating a loan of $22Y,000, for the payment of which she did not pledge the canal. In 1836, a law was passed for a general system of inter- nal improvement and to borrow $10,000,000 ; for which the State pledged her canals, railroads, turnpikes and the tolls and water rents arising from them ; $500,000 of the loan was for the benefit of the Wabash Canal, for which the canal, its lands and resources, were again pledged as security. The plaintiff owned thirteen bonds of $1 000 each of the ten million loan. The State became embarrassed, and an act of 1816 and a- supplement of 1847 were passed, providing for a surrender of bonds by the holders and an issue of stock certificates to complete the canal. The plaintiff surrendered his thirteen bonds, but he did not surrender his two bonds of the first loan. It was held. That the surrender of the thirteen bonds did not constitute an agreement to surrender the two bonds : that the first issue of the bonds was a lien upon the canal, its lands and revenues, " and the Legislature could not divest that lien or postpone it to others, because it was the result of contract, and was protected by the provisions of the Constitution of the United States against impairing the obligation of contracts." The Supreme Court affirmed the principle upon whicL the case had been ruled, but added (p. 457) : "The bill in WHO MAY BE SUED IN EQUITY. 138 this case must be treated as in the nature of a creditor's bill, although not strictly of that class. The decree * * * should provide for the other holders the same relief which it gives to the plaintiff. And the case should be referred to a master to ascertain who these bondholders are, about which we presume there will be little difficulty, and to notify them to come in and share in the fruits of the de- cree, on paying their proportion of its expense. For this purpose the case is remanded to the Circuit Court, with instructions to proceed in accordance with this opinion." In The Siren, T Wallace, 152 (1868), the court ruled that a claim for damages exists against a vessel of the United States guilty of a maritime tort as much as if the offend- ing vessel belonged to a private citizen. And although for reasons of public policy the claim cannot be enforced by direct proceedings against the vessel, yet it will be enforced by the courts whenever the property itself, upon which the claim exists, becomes, through the affirmative action of the United States, subject to their jurisdiction and control. The Government in such a case stands, with reference to the rights of the defendants or claimants, as do private suitors, except that it is exempt from costs, and from affirmative relief against it, be3'ond the demand or property in con- troversy. By the admiralty law, all maritime claims upon the ves- vel extend equally to the proceeds arising from its sale, and are to be satisfied out of them. These principles were thus applied : — A prize ship in charge of a prize master and crew, on her way from the pluce of capture to the port of adjudication, committed a maritime tort, by running into and sinking another vessel. Upon the libel of the Government, the ship was condemned as lawful prize and sold, and the proceeds paid into the reo'istry. The owners of the sunken vessel and the owners of the cargo thereupon intervened by petition, asserting a claim upon the proceeds for the damages sustained by the collision ; and it was held that they were entitled to have their damages assessed and paid out of the proceeds, before distribution to the captors. 134 WHO MAY BE SUED IK EQUITY. Mr. Justice Field (p. 160) cites and relies on United States V. Wilder, 3 Sum., 308, and adds (p. 161): ' ' In the case of the schooner Davis and cargo, recently decided in the Circuit Court of the United States for the Southern District of New York, cotton belonging to the United States was held liable to contribution to meet the alloivance made for salvage services in saving vessel and cargo. ' The mere fact,' said the court, ' of the ownership of the cotton by the Grovernment, in the act of being car- ried to its port of destination for the purpose of a market as merchandise, we think did not exempt it from the lien in case of salvage service.' We shall not enter into an argu- ment in support of the position, as the subject, or rather a kindred one, the liability of property of the Grovernment for general average, and the present question incidentally have been most elaborately examined by Mr. Justice Story. We are inclined, also, to the opinion that it is the doctrine of the admiralty in England, and of the mo^t approved modern elementary wi'iters on the subject in this country." Osborn v. The Bank of United States, above cited, was affirmed in Davis v. Gray, 16 Wallace, 203 (1872), where it was held. That a circuit court of the United States, in a proper case of equity, may enjoin a State officer from executing a State law in conflict with the Constitution or a statute of the United States, when such execution will violate the rights of the complainant. That where a State is concerned the State should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the case may proceed to decree against her officers in all respects as if she were a party to the record. That in deciding who are parties to the suit the court will not look beyond the record. That making a State officer a party does not make the State a party, although her law may prompt his action, and she may stand behind him as the real party in interest. That a State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case. WHO MAY BE SUED IN EQUITY. 136 la this case the State of Texas was actually the party ; the nominal defendants were her governor and land com- missioner. The State had in 1856 incorporated a railroad with an immense land grant. In November, 1869, a new Constitution was adopted, by which all lands granted to railroad companies and then unaliened were " declared for- feited to the State for the benefit of the school fund." The Circuit Court of the United States for the Western District of Texas decla,red this provision null, and perpetually en- joined the defendants from issuing any patent for the com- pany's lands. This decree was affirmed by the Supreme Court of the United States. In State ex relatione Theodore D. Wagner v. John R. Stall, the treasurer of Charleston County, 17 Wallace, 425 (1873), the opinion was delivered by Mr. Justice Hunt. The State of South Carolina was substantially the party upon the record. She was represented by her treasurer. She had chartered a State bank, and had provided in the six- teenth section of the act of incorporation, that the notes of the bank should be receivable at the treasury in payment of taxes due to the State. Mr. Wagner was indebted for taxes, and he tendered 8i, 000 and upwards to the defendant, the county treasurer of Charleston, in bills of the bank. The officer refused to receive them. Mr. Wagner applied for a mandamus to compel the defendant to receive the bank notes. The Supreme Court of South Carolina ad- judged that the treasurer was not bound to receive the notes, and refused the mandamus. Mr. IVagner thereupon took his writ of error from the Supi-eme Court of the United States. The question directly affected the sovereign, for it concerned the collection of her revenues. She was not a party to the record in name, although clearly so in interest. The Supreme Court considered with great care all the Acts of Assembly relied upon as affecting the relator's rights, and concluded their opinion in these words : '■'Much that is difficult in the consideration of the case of this hank is explained by the /acf that the State itself ivas its sole stockholder, receiving all the benefits of its bills 136 WHO MAY BE SUED IN EQUITY. issued, and responsible for allits losses and the jpayment of its hills." " Upon the whole case we are clear that the judgment helow must be reversed, and a mandamus issued to the collector directing him to receive in payment of the relator's taxes the hills offered by him. " In Barings v. Dahney, 19 Wallace, 1 (18Y3), it is ruled : 1. Though the stock of a hank he altogether owned by a State, if the bank is insolvent its assets cannot be appro- priated by legislative act or otherwise to pay the debts of the State, as distinguished from the debts of the bank. Tliose assets are a trust fund first applicable to the payment of the debts of the bank. 2. An act of the Legislature requiring the managers of an insolvent bank belonging to the State to hold its assets appropriated to the payment of certain specified debts, creates a trust in favor of the creditors holding said debts, and if assented to by them, amounts to a contract with them to carry out said trust. 3. If such an act, however, has the effect to appropriate the assets of the bank to pay the debts of the State, to the prejudice of billholders and other creditors of the bank, it is repugnant to that clause of the Constitution which proliibits a law impairing the obligation of contracts, and is void. The foregoing principles have been approved and main- tained in the later cases : B. R. Co. v. Tennessee, 101 U. S., 337 (1879); Cimninghamy. R. R. Co., 109 U. S., 446 (1SS3); Hagood v. Southern, 117 U. S., 52 (1885); Rolston v. Mis- souri Fund Commissioners, 120 U. S., 391 (1886); In re Ayres, 123 U. S., 443 (1887); North Carolina v. Temple, 134 U. S., 22 (1889); Louisiana v. Steele,l(]i., 230 (1889); Pennoyer v. McConnaughy, 140 U. S., 1 (1890). The right to sue the State when the proceeding is for the perpetuation of title to lands, etc., is expressly recog- nized by the Act of April 6, 1844, § 1 (P. L., 213), which directs that in such a case "the process may and shall be served on the Attorney-General or his deputy," etc. .This WHO MAT BE SUED IN EQUITY. 137 section is quoted at length in the Chapter entitled "Legis- lation as to Equity Jurisdiction." § 5327. Corporations must be sued by their corporate name, and process must be served on the officers. § 5328. In Bills of Discovery against Corporations, it is proper to join an officer as co-defendant. Bank v. Iron Co., 31 W. N., 503 (1892). In a case in which the officer demurred, his demurrer was overruled. Wych v. Meal, 3 P. Wms., 310 (1734). But where the officer is a mere witness and the facts he is required to discover could be proved by him on the witness-stand, he ought not to be joined as a party. Hoiv v. Best, 5 Haddock's Chanc. Eep., 19 (1820). Where no officer is, however, joined, it is still the duty of the corporation to make diligent examination and true answer as to all deeds and papers in their power, and to give all information thus obtained. A corporation dis- regarding this duty was censured by Sir J. Leach, M. E., and was charged with costs. Attorney -General v. The Burgesses of East Retford, 2 Mylne and Keen's Chanc. Eep., 35 (1833). See also § 2564, Brews. Prac. § 5329. Married Women may be Sued as femes sole. The Act of June 8, 1893, § 3 (P. L., 345), is "the last enactment. It provides : "A married woman may sue and be sued civilly in all respects and in any form of action, and with the same effect and results and conse- quences, as an unmarried person, but she may not sue her husband, except in a proceeding for divorce, or in a pro- ceeding to protect or recover her separate property whenso- ever he may have deserted or separated himself from her without sufficient cause, or may have neglected or refused to support her." 138 WHO MAY BE SUED IN EQUITY. § 5330. An Idiot or a Lunatic may be Sued, but his committee should be joined. If the bill be filed against an idiot or lunatic alone, the committee applies by petition to appear and to defend. This is ordered of course. If the committee has an adverse interest, an order may be obtained for the appointment of another person to defend. § 5331. Under the English Practice, where Infants are Liable, they may be sued without joining any other person, and it is not necessary to describe them as infants unless that fact is important. But under the Pennsylvania Rule V., §19, where infants or persons not sui juris are parties, the fact must be specially stated in the bill. § 5332. If there be no Guardian, the court will always appoint a guardian ad litem, usually the nearest relative. Bank v. Ritchie, 8 Peters, 128 (1834). An infant may be committed for a contempt, and an order against him to convey may be enforced by attach- ment. § 5333. Guardian Ad Litem. In the appointment of guardians of estates it is safer to exclude the executor and administrator. §§ 436Y, 4373. The same principle would apply to the appointment of a guardian ad litem. The 7th section of the 2d Equity Eule of Pennsylvania provides that — 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 ; aU in- fants and other persons so incapable may sue by their guardians, if any, or by their proohein ami, subject, however, to such orders as the court may direct, as to security or otherwise, for the protection of such mfants and other persons. § 5334. Persons out of the Jurisdiction may be made defendants where necessary. The court must WHO MAY BE SUED IN EQUITY. 139 have jurisdiction of some person or of some thing within- its sphere. Thus where a bill is filed by a mortgagor or by a defendant in a judgment for the entry of satisfaction or for opening of the judgment, and the defendants in the bill do not reside in the county where the mortgage is recorded, or the judgment is entered, process may be served by the proper officers of the counties where the parties defendants in the bill reside. Act of March 27, 185-1, g 2 (P. L., 214). This section is cited at length in the Chapter, "Legislation as to Equity Jurisdiction." It was extended to alienees of mortgagors and others by Act of April 5, 1S(;2, ^ 1 (P. L., 258). See Chapter, " Legis- lation on Equity Jurisdiction." So, too, where any suit in equity is instituted concerning goods, lands, etc., or for perpetuating testimony as to lands, etc., within the jurisdiction of the court, or concern- ing any charge or lien thereon, or where the court has ac- quired jurisdiction of the subject-matter in controversy by service on one or more of the principal defendants, the court may order service on defendants out of the jurisdiction wherever found. Act April 6, 1859, § 1 (P. L., 387). This section requires preliminary affidavits, the fixing of a time for appearance, service of bill, affidavit of service, etc. The second section of the same act provides for a serv- ice by publication when the defendant cannot be found. The third section directs that no process of contempt shall issue under this act. These sections are all printed at length in the Chapter, " Legislation as to Equity Jurisdiction." Concerning this act, it was decided in Ehy's Appeal, 70 Pa. St., 311 (1872), that to authorize service of process on a defendant beyond the jurisdiction of the court, the subject-matter must either be within the jurisdiction, or brought within it by service on a principal defendant, and that real estate in another county was not "subject-mat- ter " within the equity jurisdiction. The act does not authorize extra-territorial service upon one who is a sole defendant, unless the subject-matter of the suit be within the jurisdiction of the court from. "I-IO WHO MAY BE SUED IN EQUITY. ^vhich the writ issued. Martin's Appeal, 13 W. N., 167 (1883.) To the same effect are Coleman's Appeal, T5 Pa. St. , 4-12 (18Y4) ; Huntzingerv. Coal Co., llPhila., 609 (1876) ; Bldg. Assn. V. Mayer, 45 Leg. Int., 346 (1888) ; Smith v. Kam- merer, 152 Pa. St., 98 (1892). In Hirst v. B. B. Co., 6 Phila., 93(1865), Thompson, J., said : " The sixth section of the Act of 1859 contemplates four distinct cases in which parties not within the juris- diction of the court in equity may be served with process, but in each of which the subject-matter of the action must be within the jurisdiction of the court. 1h.e first is where the suit is concerning specific goods and chattels, lands, tenements or hereditaments ; then if the goods and chattels, lands and tenements or hereditaments, be within the juris- diction of the court, all parties having an interest or claim may be served, although beyond the jurisdiction. * * * The second is where the proceeding is to perpetuate testimony in regard to lands lying within the jurisdiction of the court. * * * The third is where the proceeding is concern- ing any charge, lien, judgment, mortgage or incumbrance within the jurisdiction of the court and there are parties outside, they may be served. And the fourth is iu general terms a power to serve parties where the court has acquired jurisdiction of the subject-matter in controversy, so that its jurisdiction having attached, complete justice may be done to all parties interested without the multiplication of suits. '' The following are the rules of equity in the Pennsylvania courts as to extra-territorial service under the act (above referred to) of April 6, 1859 : Whenever the court shall make an order under the provisions of the Act of 6th of April, 1859, for a service upon a non-resident defendant, with- out 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 case the form of subpoena shall be similar, in substance, to the notice to apiDear 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. Whenever the court shall direct service by publication, under the provisions of the Act of 6th April, 1859, a copy of such order, together WHO MAT BE SUED IN EQUITY. 141 with a statement of the substance and object of the bill, petition or other proceedings, shall be published in sucli 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 information of the complainant or deponent in reference to such defendant's place of residence. The following provisions are to be found in the Act of Congress of June 1, 1872 (R. S. of the U. S., p. 140, § 7r;S), as quoted amongst the Rules of the Supreme Court of United States on this subject (Edition of 1S82, p. 59, § 13) : That when in any suit in equity commenced in any court in the United States, to enforce any legal or equitable lien or claim against real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found with- in the said disti'ict, or shall not voluntarily appear thereto, it shall be law- ful for the court to make an order directing such absent defendant to ap- pear, plead, answer or demur to the complainant's bill at a certain day therein to be designated, which order shall be served on such absent defend- ant, if practicable, wherever found ; or where such personal service is not practicable, such order shall be published in such manner as the court shall direct ; and in case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time, to be al- lowed by the court, in its discretion and upon proof of the service or publi- cation of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and pro- ceed to the hearing and adjudication of such suit, in the same manner as if such absent defendant had been served with process within the said district ; but said adjudication shall, as regards such absent defendant without ap- pearance, affect his property within such district only. § 5335. Form of Afladavit sur Motion for Order to Serve Bill of Complaint on Non-resident Defendants. A. B. ) C. P. No. V. { Sept. Term, 18 . C. D. et id. No. . In Equity. City and County of Philadelphia, ss. : A. B., being duly sworn according to law, deposes and says that he is the plaintiff in this proceeding and that G. H. and L. M. are parties defend- ant and named in the biU of complaint filed in this cause. That your deponent has been unable to serve the said defendants with the bill of complaint although he has made diligent endeavor so to do, for the reason that they are non-residents of the State, and your deponent is in- 142 WHO MAY BE SUED IN EQUITY. formed and believes, and therefore avers, that they are residents of the City ■of New York, in the State of New York. That the said defendants are material and necessary parties, in order that plaintiff may have discovery of certain facts in their possession, relating to certain real estate in said County of Philadelphia, as recited in said bill and -an injunction preventing them from parting with it until the rights of the plaintiff shall be determined. That your honorable court has acquired jurisdiction of said defendants under the Act of Assembly and rule of court in such case made and pro- vided, in that the subject-matter in controversy, viz., (here recite the fact) is within the jurisdiction of your honorable court, and service of the said bill has been made onC. D., the principal defendant within this jurisdiction, as appears of record. Sworn to and subscribed before me, this day of April, 18 . Notary Public. (It may occur that the fact that non-residents should be made defend- ants is not discovered until the testimony is taken. In such case a motion should be promptly made to amend the bill by joining such non-residents as defendants, and for an order to serve them extra-territorially. This is ac- complished by preparing the necessary affidavit, sending a copy to the other side, with notice that the above motion will be made at a certain time.) § 5336. Form of Order to Serve Bill Extra-Territorially. In the Court op Common Pleas, No. , for the County of Philadelphia. F. A. V. W. W. G. and J. M., Administrator cum testamento annexo, of N. Y., deceased. In Equitt. September Term, 18 . No. And now , on motion of C. E. , solicitor for plaintiff, it is ordered and decreed that personal service of the bill of complaint and of this order be made upon the said defendants, F. R. and C. C, wherever they may be found, and that within days after such service upon them they cause their appearance to be entered, and plead, answer or demur to such bUl, and that this order shall be returnable sec. leg. within days after service upon them. (Signature of Judge.) WHO MAY BE SUED IN EQUITY. 143 g 5337. Form of Motion to Vacate Order as to Extra-Terri- torial Service of Bill of Complaint and to Set Aside said Service. (Caption.) And now (date) the defendants, G. H. and L. M., by their solicitor, N. O.. move the court to vacate the order of (date), authorizing personal service of the bill of complaint upon the defendants wherever they may be found, and to set aside the service on them of said bill in the City of New York for the following amongst other reasons : First : the subject-matter In oontrovers}', viz., (here recite the fact) is, by the terms of the bill, without the jurisdiction of the court. sSecond : the subject-matter in controversy has not been brought within the jurisdiction of this court by service of pi'ocess on a principal defendant within the jurisdiction. Third : the service of the bill of complaint and the order was made upon the non-resident defendants in the City of New York, as appears by the record, and being extra-territoi'ial is nuU and void. N. O., Solicitor for defendants, G. H. and L. 31. The preceding sections have been inserted because of the peculiarity of the cases there discussed. But it is to be re- membered that all persons liable under any head of equity jurisdiction may be sued in a court of equity. CHAPTER VI. WHO MUST BE JOINED. It has been settled that in every suit all the persons who have legal rights in the subject in dispute, as well as the persons having the equitable right, should be made parties. g 5338. Trustee Necessary Party. In suits by persons claiming under a trust, the trustee or other person in whom the legal estate is vested must be a party. Those in interest cannot sue to set aside a former deed without making their trustee a party. A mortgage made to a trustee for the plaintiff cannot be foreclosed without making the trustee- a party. So, too, if the trust be implied. g 5339. Heir-at-Law. It has been ruled in England that the heir-at-law of the mortgagee should be made a party where the executor of the mortgagee files a bill to foreclose. But a second or third mortgagee may foreclose without bringing the first mortgagee into court. Richards v. Cooper, 5 Beavan, 30i (1829); Rose v. Page, 2 Simon's Rep., 471 (1S29). Where both the vendor and vendee of real estate are deceased and intestate, in a proceeding to enforce the specific execution of a contract, the administrator and heirs of the vendee must be made parties, and notice should be given to the heirs of the deceased vendor. Anshutz's Appeal, 34 Pa. St., 375 (1859). 144 WHO MUST BE JOINED. 145 § 5340. On a Bill to Establish a Will of Real Estate the Heir- at-Law must tae made a Party. Eule 50 of the Equity Rules of the Supreme Court of the TJnited States and the Pennsylvania Eule (Equity Rules, v., § 24) direct, however, that — In suits to execute the trusts of a wiUit 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. § 5341. As to Accounts. The rule is that all persons interested must be made parties. In a suit for a share of a partnership transaction all having shares should be made parties. Moffatt v. Farquharson, 2 Brown's Chanc. Cases, 338 (1T88). A residuary legatee suing for a share of the residue must join all having an interest in the residue. Parsons V. Neville, 3 Brown's Chanc. Cases, 365 (1791). But where this is unnecessary or inconvenient, there is an excep- tion. Lord Eldon, in Cockburn v. Thompson, 16 Ves. Jr. Reports, 328 (1809). Rule 48 of the Equity Rules of the Supreme Court of the United States and the Pennsylvania Rule (Equity Rules, v., § 22) leave the matter to the discretion of the court : Where the parties on either side are very numerous, and cannot with- out manifest inconvenience 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 proceed in the suit, having sufficient parties before it to represent all the adverse interest of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prej- udice to the rights and claims of all the absent parties. Where some interested in an account have been paid, they need not be joined. g 5342. Cestuis Que Trustent. The general rule requires a trustee plaintiff suing as to the trust property to unite all the cestuis que trust- 10 146 WHO MUST BE JOINED. ent. Calverley v. Phelp, 6 Haddock's Chanc. Eeports, 22& (1822). But the qualifications are numerous. One exception to the rule is where the trust is to sell and distribute amongst creditors, and the deed declares that the trustee's receipt to the purchasers shall be a good discharge. So, too, the pawnee of a chattel may sue for it with- out joining the pawner. A trustee may sue his co-trustee for trust funds retained and not join the cestui que trust. Franco v. Franco, 3 Ves. Jr. Rep., T5 (1Y96). Personal representatives of an estate can sue, without juaking the residuary legatees parties. Ibid. As to interests in remainder or reversion all persons •claiming should be parties down to the person entitled to ihe first vested estate of inheritance in fee or in tail. Finch V. Finch, 2 Ves. Sr. Rep., 492 (1752). Beyond the first vested estate and the intermediates, it is not necessary to go. A remainderman expectant upon an estate-tail is not regarded in equity. 2 Eq. Cases Abridged, 166. In Hopkins v. Hopkins, 1 Atk., 590 (1738), Lord Hard- wiCKE said : " If there are ever so many contingent limi- tations of a trust, it is an established rule, that it is suffi- cient to bring the trustees before the court, together with him in whom the first remainder of the inheritance is vested ; and all that may come after, will be bound by the decree, though not in esse, unless there be fraud or collusion be- tween the trustees, and the first person in whom the remainder of the inheritance is vested." See also Lord Cholmondeley v. Lord Clinton, 2 Merivale's Reports, 71 (1816), where Lord Eldon decided a cestui que trust could not file a bill of discovery relating to real estate without the trustee in whom the legal title was vested. g 5343. All Cestuis Que Trustent shovild be Joined where the suit is against their trustee and their rights may be affected. Delberfs Appeal, 4 W. N., 294 (1877); Coal WHO MUST BE JOINED. 147 Co.^s Appeal, 88 Pa. St., 499 (18T9); Jamison v. Stewart, 37 Leg. Int., 273 (1880); Appeal of Harrisburg and Eastern R. B. Co., 22 W. N., 417 (188S); Ilyers v. Bryson, 33 W. N., 253 (1893). The Pennsylvania Equity Rule V., §§ 23,24, dispense in certain cases with the necessity of making cestuis que trustent parties : In all suits concerning real estate which is vested in trustees, and such trustees are competent to sell and give discharges for the proceeds 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 to make the persons beneficially interested in such real estate or rents and profits parties to the suit, but the court may, upon considera- tion of the matter on the hearing, if they shall so think fit, order such persons to be made parties. (The 49th Equity Rule of the Supreme Court of the United States is in the same words, using the expression : " In all suits concerning real estate which is vested in trustees by devise," etc.) § 5344. Birth or Death of Party Pending Suit^. If a person be born pending the suit who is entitled to claim, a supplemental bill must be filed. Mitford on Pleading [63]. So, too, if a plaintiff die without issue, the party next in interest, although he claims by new limita- tion, can proceed by supplemental bill, thus securing the advantage of all prior proceedings. Mitford on Pleading [64] ; Stewart's Appeal, 19 P. L. J., 73 (ISTl), Thompson, C.J. § 5345. AU Claiming under Same State of Facts should be parties. Where, however, the demands do not arise from the same circumstances, and especially if the claims are incon- sistent, the rule is different. The plaintiff is not bound to join parties who may sue the defendant if the plaintiff fail. 148 WHO MUST BE JOINED. The distinction will be noted between claims under in- consistent titles and titles which, though distinct, are not- inconsistent. § 5346. One may Sue for a Number. In many cases equity allows one or more to sue on be- half of themselves, and of all others in like interest. As, for example, one of a number of creditors concerned in a trust — one of a number of stockholders — one inhabitant of a parish — where many have an interest. In Lloyd v. Loaring, 6 Ves. Jr. Rep., 773 (1802), Lord Eldon ruled that a member of a lodge or of an inn of court, might sue on behalf of himself and the others, for a chattel in which all had an interest To the same effect is Beaumont v. Meredith, 3 Vesey & Beames, 181 (1814). In Bromley v. Smith, 1 Simons' Eep. , 8 (1826), a few were allowed to sue, although a ma- jority was opposed to their act. In Small v. Atwood, 1 Younge'sRep., 407 (1832), a few were permitted to sue for all. Where a small number file a bill they must distinctly say that it is on behalf of them- selves and of all others, etc., else an objection for want of parties may be made. Philadelphia v. B. B. Co., 133 Pa. St., 134 (1890) ; Bishop v. Cowden,5 Mont., 151(1889). But one cannot file for many, unless the remedy sought will benefit all. Thus a subscriber to a loan cannot file a bill on behalf of himself and of other subscribers to rescind the contract. What might benefit him, might injure others, and, at all events, each has the right to decide for himself. Jones v. Del Bio, 1 Turner & Russell, 297 (1823). See also Van Sandau v. Moore, 1 Russell, 465 (1826) ; Weale V. West Middlesex 1 Jacob & Walker, 370 (1820). § 5347. Persons having an Immediate Interest against the Plaintiff must be joined. But an agent, although signing in his own name, is not a necessary defendant to a bill against his principal. WHO MUST BE JOINED. 149 Where a person has any vested estate, or where, if the plaintiff recover, the defendant can sue him — he is a necessary party ; as where trustees are parties to a lease, and fraud is charged, they must of course be joined in a bill to set aside the lease. Jones v. Jones, 3 Atkyns' Eep., 110 (174:4) ; Harrison v. Pryse, Barnardiston's Chanc. Cases, 324 (1740). § 5348. A Trustee never Acting, and who has released all his interest to his co-trustee, ought not to be joined in a bill to set aside the instrument for fraud. Bichardson v. Hulbert, 1 Anstruther's Eep., 65 (1792). See also Burt v. Dennet, 2 Brown's Chanc. Cases, 225 (17S7), where it was held that the trustee assigning, his assignee ought to be before the court. § 5349. If there be More than One Trustee, all must be joined if amenable to process ; save where one is sued alone for an account of his particular receipts. Lady Selyard v. Harris, 1 Equity Cases Abridged, 74. § 5350. Committees of Lunatics, Assignees of Bankrupte, Ex- ecutors Durante Minore ^tate. General Executors and Administrators must all be joined where the bill may affect the interests or estates committed to their care. One who has never acted, or has renounced, cannot be sued. Where the plaintiff makes an assignment for the benefit of creditors, pendente lite, it is not necessary that the assignee should be made a party on the record. Brown v. Gray, 2 Kulp, 136 (1882). § 5351. Mortgagees. A mortgagee who has assigned need not be a party to a bill to redeem. The assignee is the only necessary party. Chambers v. Goldwin, 9 Vesey Jr. Eep., 69 (1804) 150 WHO MUST BE JOINED. § 5352. Sureties. If one surety sue another for contribution and a third surety be dead, the executor of the deceased surety must be joined. Hole v. Harrison, Finch Chanc. Cases, 15 (16Y3). But the obligee in a joint and several bond may sue all or one only. The principal, if insolvent, need not be made a party. Ibid., and Lawson v. Wright, 1 Cox's Chanc. Cases, 2T6 (1786). But the plaintiff has his election to sue the principal or not. Haywood v. Ovey, 6 Haddock's Chanc. Eep., 113 (1821). The Pennsylvania Equity Eule V., § 25, directs that — [In all cases where the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary 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 biU in the nature 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 original 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. (The 51st Rule in Equity of the Supreme Court of the United States is in the same language down to the words "severally liable." The provision as to the defendant filing a cross bill, etc., is not in the U. S. Eule.) § 5353. Where there is a Multitude it is not Ifecessary to Join All. Eesiduary legatees have been already mentioned. Nine hundred shareholders. City of London v. Rich- mond, 2 Vernon's Eep., 421 (1701). Many creditors. Mitford on Pleading, p. 412. Planters, tenants and inhabitants of a province. Penn v. Lord Baltimore, 1 Vesey Sr. Eep., 444, 449 (1750). Where 16 were sued out of 250 for their proportions, only. Anon., 2 Equity Oases Abridged, 166, pi. 27. WHO JlUbT BE JOINED. 151 Many obligors — some dead, etc. Lady Cranborne v. Crispe, Finch, 105 (1673). Committee of a club for money and work under a con- tract on behalf of themselves and other subscribers. Cul- len V. Duke of QueeHsberry, 1 Brown's Chanc. Cases, 101 (1780), and on appeal 1 Bro. P. C. 396 (1787). As in case for specific performance of an agreement for a lease against directors of a joint stock company, although the rest of the proprietors were not before the court. Meux V. Maltby, 2 Swanston's Chanc. Eep., 277, 286, 28r (1818). Acting members of a committee are all liable, though all were not present at all the meetings. Horsley v. Bell, 1 Brown's Chanc. Cases, 101 n. In Atty.-Genl. v. Brown, 1 Swanston's Chanc. Rep., 265(1818), Lord Eldon held 48 acting commissioners liable, though 100 were appointed. The City of London was allowed to maintain a bill against only a few for the purpose of establishing a right. Lords of manors have sued some tenants on a question affecting many. Ilarclcastle v. Smithson, 3 Atk., 246 (1745). See also Adair v. Ne2v Biver Company, 11 Ves., 429 (1805). In this case Lord Eldon said (p. 444) : " There is one class of cases very important upon this subject, viz. : where a person having at law a general right to demand service from the individuals of a large district — to his mill, for instance— may sue thus in equity : his demand is upon every individual not to grind corn for their own subsistence except at his mill ; to bring actions against every individual for subtracting that service is regarded as perfectly im- practicable, therefore a bill is filed to establish that right, and it is not necessary to bring all the individuals. Why ? Not that it is inexpedient, but that it is impracticable to bring them all. The court, therefore, has required so many, that it can be justly said they will fairly and honestly try the legal right between themselves, all other persons in- terested and the plaintiff ; and when the legal right is so established at law, the remedy in equity is very simple : 152 WHO MUST BE JOINED. merely a bill stating that the right has been established in such a proceeding, and upon that ground a court of equity will give the plaintiff relief against the defendants in the second suit only represented by those in the first. I feel a strong inclination that a decree of the same nature may be made in this case." The 48th Eule in Equity of the Supreme Court of the United States and the Pennsylvania Equity Eule V., § 22, on this subject have been already cited : Where the parties on either side are very numerous, and cannot with- out manifest inconvenience and oppressive delays in tlie suit be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interest of the plaintiffs and defendants in the suit properly before it. But in such oases the decree shall be without prejudice to the rights and claims of all the absent parties. § 5354. When all must be Joined, But, notwithstanding the inconvenience, there are cases in which it is indispensable to join all. As in case of a trust for many. Newton v. Earl of Egmont, 5 Simon's Eep., 130 (1832). A mortgagee foreclosing will not obtain an undisputed right to the estate, if he omit to make all in- cumbrancers parties ; although he has no notice of their existence. Loinax v. Hide, 2 Vernon's Eep., 185 (1690); Godfrey Y. Chadwell, Id., 601 (1707); Morrettv. Westerne, 2 Vernon's Eep., 663 (1710). So, too, a mortgagee need not be made a party where an estate has been sold or charged after date of plaintiff's claim. Maide v. Duhe of Beaufort, 1 Eussell's Eep., 349 (1826); Copis v. Middleton, 2 Haddock's Chanc. Eep., 410 (1817). § 5355. Cestuls Que Trustent. Where an estate is conveyed to a trustee to pay debts or legacies, he may sue respecting the trust property without making the cestuis que trustent parties. Persons having prior mortgages or incumbrances which will not be affected may be omitted. "WHO MUST BE JOINED. 153 s} 5356. Subsequent Incumbraneer. A third incumbrancer is not interested when a bill is brought by the second to redeem the first. § 5357. Ineumbraneers and Purchasers after Suit BrougM. Incumbrancers and purchasers from defendant after bill filed need not be made parties whether the plaintiff have notice or not. Bishop v. Paine, 11 Vesey Jr. Rep., 199 (ISO.j). Where plaintiff sells, the new owner must be brought in. Ibid. § 5458. Purchaser after Suit may make himself a party by supplemental bill, i;ut he cannot by petition be admitted to defend. Foster v. Deacon, 6 Haddock's Chanc. Oases, 59 (1831). ^^ 5359. Bondholders. The owners of railroad bonds secured by a mortgage on the property of the company and its franchises must all be made parties in a bill praying that said mortgage and bonds shall be declared null and void ; B. B. Co.'s Appeal, 22 W. N., 417 (1888); B. B. Co.'s Appeal, 1 Monaghan, 692 (1888); but they need not be made parties to a bill of fore- closure. McElrath v. B. B. Co., 28 Leg. Int., 197 (1871). § 5360. When Persons must be Joined as Defendants who do not have a Direct but a Consequential Interest. The general rule is that such persons must be joined in order to avoid a multiplicity of suits. Thomas v. Boswell, 37 Leg. Int., 147 (1880). This applies where the defendant in his answer insists that he is entitled to reimbursement from a person named for whatever he may be decreed to pay. Greenwod v. Atkinson, 5 Simon's Eep., 419 (1832). Where a bill calls upon a widow to take a legacy which she has elected in lieu of dower, the executor should be named as a party. Lesqiiir,e v. Lesquire, Finch, 134 (1674). And so in cases of sureties and of joint obligors. Lord Hard- 154 WHO MTTST BE JOIISTED. wiCKE, in Madox v. Jackson, 3 Atk., 406 (1T46); Lord Thurlow, in. AngersteinY. Clark, 2 Dickens, T38; 3 Swans., 147 (1Y90); LordELDON, in Cockburnv. Thompson, 16 Vesey Jr. Eep., 326 (1809), and Sir J. L^acu, in Bland v. Winter, 1 Simon's and Stewart's Eep., 247 (1823). All parties to be affected by the decree must be Joined. Pettit v. Baird, 30 Leg. Int., 208 (1873); Gloninger v. Hazard, 42 Pa. St., 389 (1862); Lance's Appeal, 112 Pa. St., 456 (1886); City v. B. B. Co., 133 Pa. St., 134 (1890). Where a bill charges unlawful conduct on the part of a corporation or prays for a cancellation of its bonds, the corporation must be made a party defendant. Hoffman v. Hartman, 7 Lancaster Law Eeview, 137(1890); Huston v. Sellers, 35 Leg. Int., 262 (1878). Parties omitted may be added upon petition and order. The 25th section of the 5th Equity Eule in Pennsyl- vania, as already stated, declares that a plaintiff having a joint and several demand against several persons, either as principals or sureties, may proceed without joining all who are liable, and may sue one or more of the persons severally liable. But the defendant may proceed by bill in the nature of a cross-bill against the party liable jointly with him, etc. And the 18th section of the 5th Equity Eule in Penn- sylvania provides that — Where no account, payment, conveyance or other direct relief is sought against a party to a suit not being an infant, the party, upon service of the notice upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do, by the prayer of his bill ; but he may appear and answer at his option, and if he does not appear and answer, he shall be bound by all the 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. The 54th Equity Eule of the Supreme Court of the United States is in the same form, using the words "upon service of the subpoena upon him," in place of " upon. service of the notice upon him." CHAPTER VII. PREPARATION OF BILL. It has been well remarked that the simplicity of moderrt proceedings renders the old subdivisions of bills in chancery comparatively unimportant. What matters it to the stu- dent or the practitioner that bills may be " original bills," or " bills in the nature of original bills ; " that original bills may be divided into ' ' original bills praying relief " and " original bills not praying relief," and that " original bills praying relief " may be subdivided into three heads ? And so on through a dreary chapter which does not advance the anxious pleader one step iipon his journey of preparing the client's bill. Like the tiresome discussion of who should be parties and who should be omitted, is it not enough to know that " all persons materially interested in tlie subject ovight generally either as plaintiffs or defendants to be made parties to the suit, or ought by service or notice of the decree to have an opportunity afforded of making them- selves active parties if they should think fit " ? § 5361. The Attorney's Authority. It is to be assumed that no practitioner will undertake to represent a man who has not engaged him. If the client be absent, the correspondence would be a power. As the authority may be challenged, a letter requesting the filing of the bill should be obtained. If the case be very impor- tant, and it might require the exhibition of a power of attorney, that also can be secured. It should be properly acknowledged. In most cases these formalities can safely 155 156 PEBPAEATION OP BILL. be dispensed with, as the client may be asked to sign the bill, and where necessary to make an affidavit. The Penn- sylvania Act of April 14, 1834, § Tl (P. L., 364), permits the defendant to call for the power of attorney. Lord Eldon said, in Wilson v. Wilson, 1 Jacob and Walker, 43Y (1820): " I cannot agree that making a person a plaintiff is only pro forma ; and I am disposed to go a great way in such cases, for it is too much for solicitors to take upon themselves to make persons parties to suits, without a clear authority ; there are very great mischiefs arising from it." If, however, a bill should be filed without authority, the plaintiff can present an affidavit stating the facts, give notice to the attorney, and, as soon as possible, move that the bill be taken off the file or dismissed, and that the attor- ney be ordered to pay to defendants their costs, and to plaintiff the costs of the application. Where one of several plaintiffs makes the objection, the same course is pursued, but the motion is that his name be stricken out, and that the attorney pay the costs. When persons are made plaintiffs without their assent, the bill as to them should be dismissed. Gravenstine's Appeal, 49 Pa. St., 310 (1865). § 5362. Committees of Idiots and Lunatics should always obtain leave to sue. § 5363. Receivers and Assignees in Bankruptcy- pursue the same course. Consent of the court is required in order to make a receiver a party. Wray v. Hazlett, 6 Phila., 155 (1866). § 5364. The Client's Statement. Books of practice never refer to this important part of preparation. Perhaps it is assumed that it will always be secured. Many practitioners dot down the points and pre- pare the bill. It is, however, recommended that wherever possible the full history of the case be secured from the PREPARATION OP BILL. 157 client. If he is absent, lie must of course write. He will generally not make his statement full. Its omissions should all be supplied. Sometimes the dient is averse to writing. In such cases a consultation can be arranged and his statement taken down. He should be examined care- fully as if he were on the witness-stand. Originals, certi- fied copies and papers referred to should all be studied ; a table of dates made ; witnesses should be brought to the- of&ce and examined ; in a word, all the light possible should be obtained. The attorney pursuing this course will rarely hear anything surprising from the enemy and will be thoroughly saturated with the facts. §5365. Parts of the Bill. If it be no longer useful it may still be amusing to un- derstand the cumbrous form of the old bill. It embraced no less than nine divisions, viz. : I. The address to the person or persons holding the- great seal. II. The second part contained the names and addresses of the parties complainant. III. The third part contained a statement of the plaint- iff's case, and was commonly called the stating part of the bill. IV. The fourth consisted of a charge that the defendant unlawfully confederated with others to deprive the plaint- iff of his right. V. The fifth part alleged that the defendants intended to set up a particular sort of defense, the reply to which the plaintiff anticipated, by alleging certain facts which would defeat such defense. This was usually termed the charging part, from the circumstance that the plaintiff's allegations were usually introduced by way of charge instead of statement. VI. The sixth part contained a statement that the plaintiff had no remedy without the assistance of a court of equity, which was termed the averment of jurisdiction. VII. The seventh part was the interrogating part, in which the stating and charging part were converted into- 158 PEEPAEATION OP BILL. interrogatories for the purpose of eliciting from the defend- ant a circumstantial discovery upon oath of the truth or falsehood of the matters stated and charged. VIII. The eighth part contained a prayer for relief adapted to the circumstances of the case. IX. The ninth part consisted of a prayer that process might issue, requiring the defendant to appear and answer the bill, to which sometimes was added a prayer for a pro- visional writ, such as an injunction or a ne exeat regno, for the purpose of restraining some proceeding on the part ■of the defendant, or of preventing his going out of the jurisdiction till he had answered the hill. § 5366. The Change in England. The seventh part is now legislated out of existence (15 and 16 Vic, c. 86, § 10). As to the ninth part, the writ of subpoena has been abolished (Id., § 2). The charging and the jurisdiction sections have mostly become obsolete. So that in the mother country, as in Pennsylvania, the bill in equity is now the simplest of all pleadings. It must be addressed to the proper court ; give the names and addresses of the parties ; state the facts and pray for the desired relief. § 5367. The Address. If the bill be filed in the United States court or in the State court, it is so entitled. If it be a bill of discovery in aid of a suit at law, it is addressed to the court where the issue is pending. If it be a bill in aid of an execution and to discover assets, it is addressed to the court where the judgment has been entered. A petition for the removal of a trustee, and a bill to compel an account from the same trustee, should be filed in the same court. In re Daniel, 28 W. N., 198 (1891). § 5368. ITames and Addresses of the Plalntiffe. The correct names, the description and the place of PREPARATION OF BILL. 159 abode of each plaintiff must be stated. It was formerly held that error in this regard might be the subject of de- murrer or of plea. But the modern practice is to apply by special notice for security for costs, proceedings to stay in the meantime. Lord Langdale said in Simpson v. Bunion, 1 Beav., 556 (1839) : " There can be no doubt that it is the duty of a plaintiff to state his place of residence tiul}' and accurately at the time he files his bill, and if, for the purpose of avoiding all access to him, he wilfully misrepresents his residence, he will be ordered to give security for costs. I do not think the rule extends to a case where he has done so innocently and from mere error." Rule 20 of the United States Rules in Equity requires that the plaintiff shall say that he is a citizen of a certain State, and that the defend- ant is a citizen of a certain State. Instead of a citizen, etc., the averment is sometimes changed according to the fact, " subject of the King of," etc. § 5369. Addresses of Infants and Lunatics need not be given, but the next friend or committee must give his address. § 5370. Addresses of Corporations need not be stated, but it is usual in many cases, and is required in all cases in the United States courts, to state the habitat. § 5371. When Plaintiff Sues on Behalf of Himself and of Others, "that fact should be stated. g 5372. Who are to be Made Plaintiffs. 1. When the class is numerous the plaintiff may sue for himself and all. (See Rule V., § 22, Penna. Equity Rules, and Rule 48, U. S. Rules in Equity.) Where the parties are numerous or unknown, a bill filed by a plaintiff on behalf of himself alone is bad. Bishop v. Cowden, 5 Montg. Co. Law R., 151 (1889). 2. Where the plaintiff has only an equitable right in the 160 PREPARATION OF BILL. thing demanded, the person holding the legal right must be a party. Bills are not filed to the use of the beneficial owner ; he must sue. 3. The trustee must sue to enforce rights of persons claiming under the trust. 4. This is true whether the trust be expressed or implied. 6. The assignee of a mortgage may foreclose without joining the original mortgagee. 6. If there be several derivative mortgagees, they must all be made parties to a foreclosure bill by one. 7. If- the principal can show that the money paid be- longed to him, he can sue, although the contract was made in the name of his agent. Bethune v. Farebrother, cited 5 Maule & Selwyn, 385 (1816). This, though doubted in U. S. V. Parmele, 1 Paine C. C, 252 (1810), and other cases, seems to be sustained. Story on Agency, § 161 . If the principal cannot show that the money paid was his, he must make the agent a co-plaintiff or a defendant. 8. The auctioneer may be joined as co-plaintiff with the vendor. He has an interest in the contract. 9. An assignee of a chose may make the assignor a co-plaintiff or may sue alone. 10. Where the trustee has no beneficial interest and is not possessed of the legal estate, a cestui que trust may be plaintiff. So where the cestui que trust sues for execution of the trusts. 11. Where a lessee seeks to establish a general right, the landlord should be a party ; otherwise where he only seeks that which is incidental to his position. 12. Persons claiming joint interest in an estate cannot sue without making their companions parties. 13. In a bill to redeem, the plaintiff sliould bring in all who have a right to redeem. 14. In bills for an account, all interested and not paid must be brought in as plaintiffs or defendants. 15. Personal representatives of an estate must sue for it. Legatees and others interested need not be parties. 16. All the executors proving must sue, though one be an infant. PEEPABATION OP BILL. 161 17. Births and deaths pendente lite can be noticed by amendment or supplemental bill. A soHcitor, careful, on the one hand, never to join as plaintiff a person he does not represent, or one ^Yho has clearly no right, may, on the other hand, find rc^lief in the fact that the naming of one whose position is doubtful cannot hurt his case, for the misjoinder of plaintiffs does not defeat the bill. A bill for an account of oil taken from the wiJe's real estate during coverture should be brought in the name of the husband and wife, and should be filed in the county where the land is situate. Thompson v. Noble, 3 Pitts. 301 (isro). In Ford v. Temj, 41 Leg. Int., lli (1881), a bill was brought in the names of four trustees, three of Vv'hoin sub- sequently filed a disclaimer, whereupon the defendant took a rule to dismiss the bill. The rule was discharged. Thayer, P. J. : The rules which prevail in courts of equity in regard to who are neces- sary parties, and what place they shall occupy on the record, differ totally from the rules at law upon the same subject. In equity it does not make a particle of difference on which side of the record the name of the party is placed, whether among the plaintiffs or defendants, not even as regards the question of costs, for a chancellor mny award costs against some of the plaintiffs and not against others, or against some defendants and not against others, the whole subject being absolutely under his control. The only solicitude of courts of equity about parties is to see that all persons are made parties who are to be affected by its decrees, and it makes no difference whether they figure as plaintiffs or defendants. Neither does it make any difference in equity at all whetlier the plaintiff has the legal or the equi- table title, or whether all who have a right to sue jom in suing or not. It is only requisite that they be made parties, it does not in tlio least matter on which side of the record. It is well settled, therefore, that a cestui que trust may maintain a bill in which his tiiistees refuse to join, but he mu.st make them parties. £^ co)it/-erso, the trustees may sue without joining the cestui que trust as plaintiffs, but they must in general be made i)arties. So ako the common-law rule which requires all having a joint ownership or claim to be joined as plaintiffs has no place whatever in equity. It is sufficient tliat all parties interested in the subject of the suit should be before the court as plaintiffs or defendants. It matters not which position they occupy. For example, one of two assignees of a bankrupt may sue in equity without his co-assignees, provided they are made defendants ; WilMns v. Fry, 1 Mer., 244 ; and so one executor or trustee may sue without his co-executor or 11 162 PEEPAEATION OF BILL. co-trustee joining if he be made defendant. Davis v. Allen, 1 Green. Ch., 288. In fine, the doors of a court of equity are wide open to every com- plainant who has a right to its interposition, whether his interest be legal or equitable, joint or several, and no advantage can be taken of the non-joinder of plaintiffs if the parties omitted be made defendants. All that is neces- sary is that the plaintiff shall bring before the court aU such parties as are necessarv to enable it to do complete justice. The technicalities of common- law rules in reference to the position of the parties upon the record have no existence in a court of chancery. It can make no difference to the persons who have disclaimed the bringing of the suit whether they are plaintififs or defendants. If they are proper parties it is immaterial on which side of the record their names appear. Having disclaimed they will be treated as de- fendants and will be protected from tlie payment of costs if the suit should be unsuccessful. If, however, the solitary trustee who has sued should be successful, a doubt may exist as to whether the others will be entitled to their costs. Blount V. Burrow, 3 Bro. C. C, 90. A bill filed by one of three parties to whom a trustee or mortgagee is liable to account jointly was dismissed for want of proper parties, in Lance's Appeal, 112 Pa. St., 456 (1886). The commissioners in office are the proper parties to file a bill to set aside a sale of land of the county, where a former county commissioner is interested in the purchase. Petery's Appeal, 129 Pa. St., 121 (1889). Purely public rights should be vindicated, and duties owed alone to the entire community should be enforced, through the attorney-general, and not at the suit of a private citizen. Mayer v. McCamant, 8 County Court Eep., 75 (1890). § 5373. Who are to ba Made Defendants. 1. An auctioneer employing fraud at a sale need not of necessity be joined as co-defendant in a bill by the pur- chaser. Veazie v. Williams, 8 How. U. S., 134 (1850). 2. An agent buying in his own name should be made either a co-plaintiff or a defendant in a bill by the principal for specific performance ; unless the principal can establish clearly that the money paid was the principal's money. If he can show this he may omit the agent. 3. It need hardly be stated that all against whom a recovery is demanded must be named as defendants. If ihe wrongs complained of, though separate, have yet been PREPARATIOX OV BILL. 1G3 -part of a concerted plfiu, then one bill may be filed against all. But if the injuries have resulted from independent and unconnected acts, separate bills should be presented. i. A bill against a corporation for discovery should unite one or more of its officers. 5. Bills against corporations and their directors for fraud, etc. , should name all who can be properly charged. 6. All persons having an immediate interest in resisting the plaintiff's demand should be joined, unless they are very numerous. 7. All persons against whom the defendant may have a demand over in the event of the plaintiff's success. 8. Committees of lunatics, guardians of minors, assignees of bankrupts. 9. The personal representatives of a deceased person where the claim is against his estate. His widow, heirs or devisees where a right is to be established or a charge is to be created against his land The executor durante miiiore cetate should not be sued if he has accounted and delivered to the executor. 10. All executors amenable to process must be named wliD have proved, though one be an infant. 11. Cestuis que trusteed were formerly necessary par- ties to suits against their trustees by which their rights might be affected. When very numerous this rule was dispensed with, and wherever their interests are sufficiently represented by the trustees, the suit may proceed without any of the cestuis que trustent being joined. 12. Whenever birth after suit brought creates a new party, he must be brought in by supplemental bill or amendment. So if one die, the next party in interest is added in the same manner. 13. All trustees are prima facie necessary parties to a suit arising out of a breach of trust, although execution may be ordered against only one. Sir James Wigram, in Shipton V. Bawlins, 4 Hare, 623 (1846). A bill to declare void a mortgage and bonds, issued by a railroad company in violation of Art. XVI., § 1, of the -Constitution, and of the Act of April 18, 1874, should join 164 PEBPAEATIOX OF BILL. the bondholders as parties. Railroad Company's Ajypeal^ 1 Mona., 692; 22 W. N., 417 (1889). Where a bill for specific performance did not join the- defendant's wife, it v/as held error to include her in the decree. Brown v. Pitcairn, 30 W. N., 35 (1892). Where the trustee of certain railroad bonds was made a party to a bill, notice to bondholders of incidental proceed- ings is not required. Piatt y. B. R. Co., 83 W. N., 186 (1893). All persons interested should be made parties to a bill for an account. Personal representatives of persons inter- esbed should be brought in. Myers v. Bryson, 33 W. N., 253 (1893). Administrators who have sold real estate of a decedent are the proper parties to file a bill against a person in the name of whom the title stands, to compel him to convey to the purchaser. ZJlrick's Appeal, 2 Penny., 455 (1882). The officers must be joined in a bill brought by stock- holders against persons alleged to have fraudulently se- cured money of a corporation, falsely pretending that it was to be used for purchasing land for the company. Hughes v. McMurray, 6 Phila., 200 (1867). Under the Manufacturing Company Act of July 18, 1863, a bill to enforce the individual liability of the officers should be filed against them alone. The corporation- should not be joined. Sheriff y. Oil Co., 1 Phila., 4 (1868). Such bill must be filed on behalf of the complainants and all other creditors of the corporation. Ibid. ; Young v. Oil Co., 30 Leg. Int., 13 (18Y3). The secretary should not be made a party. Ibid. A bill filed against an attorney to compel the surrender of a paper alleged to have been fraudulently obtained by his client and deposited with the attorney, should make the owner of the paper a party. Edwards v. Brightley, 11 Cent. Eep., 184 (1888). In Delberfs Appeal No. 3, 4 W. N., 294 (1877), a bill was. filed by certain cestuis que trust against a volunteer trustee de son tort, to compel an account. Several other cestuis que trust were not made parties nor represented by a trus- PKEPAEATIOiS' OF BILL. 165 -tee of the entire estate. The bill was dismissed for want of proper parties. In Jamison v. Steivart, 37 Leg. Int., 273 (1880), the plaintiff had made advances upon stock belonging to sev- eral persons and held by a trustee. Two of the owners re- fused to pay the advances, and a bill was filed against them and the trustee praying for a sale of their interests. Held, That the other stockholders should have been made parties. All persons materially interested or who will be affected by the decree must be made parties. Scholl v. Schoener, 1 Woodward, 200 (1862) ; Pettit v. Baird, 10 Phila., 57 (1878) ; Thomas v. Bosivell, 37 Leg. Int., 147 (1880) ; Hoffman v. Hartman, 7 Lane. Law R., 137 (1890). A bill in equity set forth that A., a citizen of Georgia, gave certain property in trust to B., C. and D., or the sur- vivor, their executors, administrators and assigns, and that said trustees had invested a part of said property in the stock of the defendant corporation. The bill averred that the trustees were dead and that the complainants were executors of the last trustee, and were under the will of A. and the laws of G-eorgia successors in the trust. The bill prayed that the stock should be transferred to the com- plainants. Held, That the cestuis que trusten t should have been made parties. Appeal of the Lehigh Co., 88 Pa. St., 499 (1879). In Gas Co. v. Douglass, 140 Pa. St., 283 (1889), the plaintiff claimed under a lease from defendant ; the latter denied the due execution of the lease and set up that a lease had been made for the premises to A., who had as- signed to B. Held, That B. was entitled to be made a party to a bill by plaintiff against defendant for reforma- tion of the original lease. Where the plaintiff is a trustee and files a bill against third persons to enforce his rights, the cestui que trust need not be made a party. Fawcett v. Aultman, 29 Pitts. L. J., 331 (1882). Where a railroad company, in violation of a decree against it, constructed a turnout from its track into a ware- house, the owner of the warehouse should be made a party 166 PREPARATION OF BILL. to a bill for the removal of the turnout. City v. R. R. Co.,. 133 Pa. St., 134 (1890). Separate respondents, who act in different capacities, under different rights, without joint liability or interest in_ the relief sought, should not be joined. A bill to enjoin judgment creditors and the sheriff from selling goods, and to remove an assignee for the benefit of creditors, should not make the sheriff and assignee parties defendant. Art- man V. Giles, 155 Pa. St., 409 (1893). Lastly, it may be remarked that the improper joinder of a defendant does not ex necessitate defeat the right to re- cover against the one who is found to be amenable to the bill. The complaint may be sustained against A. and dis- missed as to B. In Persch v. Quiggle, 5T Pa. St., 247 (1868), the plain- tiff obtained a decree against two defendants, though his- bill was dismissed as to the other defendants. § 5374. statement of Tacts. This should be arranged as a narrative. Clearness and directness should be employed. It is not enough to say the plaintiff ' ' is informed. " Lord Uxhridge v. Staveland, 1 Ves. Sr., 56 (1747). But " plaintiff is informed, believes and therefore avers " is sufficient. Wells v. Bridgeport Co.,, 30 Conn., 316 (1862). Eedundancy must be carefully avoided. No expletives should be used. Where proper, the words " falsely," " fraudently," " with intent to deceive and defraud," "designing to injure," etc., may be inserted. Where falsehood or fraud is a necessary part of the case it must be charged. The pleader need not be reminded that fraud is a conclusion of law from certain facts and that these should be stated. Where seizin is necessary, use that word or seized. As far as may be the averments should proceed chrono- logically. Care must be taken to avoid scandal or imperti- nence. § 5375. ScandaL Scandal consists in stating that " which is unbecom- PKEPAEATIOX OP BILL. 167 ing the dignity of the court to hear or is contrary to good manners, or which charges some person with a crime not necessary to be shown in tlie cause, or any unnecessary allegation bearing cruelly upon character." 5376. Reqiiirenient of Pennsylvania Kule as to Stating Part of the Bill. The 4th of the Pennsylvania Equity Eules requires that every bill shall be expressed in brief and succinct terms, avoiding unnecessary recital of papers, or other imperti- nent matter, or any scandalous matter not relevant to the suit. It is also provided that every bill in the introduc- tory part shall contain the names of all the parties, and the form is prescribed. The lYth section of the same rule directs that the bill shall be divided into paragraphs con- secutively numbered, shall contain a succinct statement of the facts, etc. The plaintiff may at his option insert the facts intended to avoid an anticipated defense. He must introduce the necessary averments to entitle plaintiff to relief, the prayers for relief, special orders or process. Formal averments of combination, interrogatories, want of remedy at law, etc., must be omitted. The stating part of the bill must contain every aver- ment necessary to entitle the plaintiff to the relief prayed for. Thompson's Appeal, 120 Pa. St., 367 (1889) ; Barry v. McAvoy, 10 Phila., 99 (1873). The bill ^ould support itself, and should state every necessary fact distinctly and not byway of argument or inference. Morch v. Gas Co., 8 County Court Eep., 131 (1890). The evidence need not be recited. Winehrenner v. Col- der, 43 Pa. St., 244(1862). In a redemption bill the mortgagor must offer to pay the debt, interest and costs. Lanning v. Smith, 1 Pars., 13 (1841). In a bill for an account the plaintiff need not offer in his bill to pay the balance, if found against him. Hudson v. Barrett, 1 Pars., 414 (1850). 168 PREPARATION OF BILL. § 5377. Alternate Prayer. In Wilhehn's Appeal, 19 Pa. St., 120 (1876), the bill set forth the title of the parties to a certain estate held in common, by reference to the title papers, and then prayed for an account of ores taken from certain premises, ' ' if these be the premises held in common, but if the tenancy in common is of a greater extent, then of the ores taken from such extended area." Held, That such alternate prayer was not demurable. In Bawlings T. Lambert, 1 Johns, and Hem., 466, Sir W. P. Wood, afterwards Lord Hatherley, said : " You have no right to allege two inconsistent states of facts and ask relief in the alternative, for the two cannot be true ; but you have always a right to state the facts of the case, the documents and deeds, and ask the conclusion of the court on those facts and documents, and say, the court may come to one conclusion of law, or it may come to an- other ; and you may ask the court to come to a conclusion on the facts which you have disclosed, having stated everj'-- thing that will enable the court to form a proper judgment. You may ask the judgment of the court on two alter- natives; that may be done on any bill without objection." § 5378. Impertinence is defined by Lord Chief Baron Gilbert, Grilbert's Chancery, 209 : "Where the records of the court are stuffed with long recitals, or with long digressions of matter of fact, which are altogether unnecessary and totally immaterial to the matter in question ; as where a man Avill tell a tale of a tub, where he sets forth a long deed which is not praj^ed to be set forth in hcec verba, where he stuffs his answer with long recitals which are nothing to the purpose, as where a bill of revivor is brought and the party will set forth v'i? hoic verba, not oily the original bill and answer, but the whole proceedin gs in the cause ; whereas, all these being matters of record, and of which the party hath once paid i.ir copies, he ought not pay for them over again, nor is there occasion to set them forth over again in hoic verba. PEEPABATION OF BILL. 169 or to make an unnecessary repetition thereof, for they ■ought to set forth very concise and short." § 5379. Bills, Answers and all Pleadings may be Excepted to for Scandal or Impertinence. It may be important to understand — § 5380. What has been Decided to be Scandal. In a bill to set aside papers given on base or criminal consideration, it is scandal to charge immorality with third parties. Clark v. Periam, 2 Atk., 333, 33Y (1742). And because such evidence might be given under tlae general charge ; Ibid, and Whaley v. Norton, 1 Vern., 483 (168T), specifications should be avoided. § 5381. What is not Scandal. Though the charge be slanderous in the worldly sense, yet if it be material and shed light upon the point, it is not scandal. Thus all bills for redress on the ground of fraud must charge the wrong-doing. The representation by defendant that he was a man of means when in fact he was a bankrupt — false personations, cheating, gambling and the like — if material — not only can, but must be charged. Charges of fraud where relevant are not scandal- ous. Fenlioiilet v. Passavant, 3 Ves. Sr., 24 (1760). After charging that a woman had obtained a will by undue influence, the plaintiff went on to allege that the woman was the mistress of the testator. Sir 0. Pepys, M. R., held that this was not scandal. Anon., 1 Mylne & Craig, 78 (1835) ; Lord St. John v. Lady St. John, 11 Ves., 626 (1805). A cestui que trust proceeding against his trustee may charge him with misconduct, corrupt motive and vindictive- ness. Earl of Portsmouth v. Fellows, 5 Maddock, 450 (1820). § 5382. Exceptions for Impertinence. Matter foreign to the case is impertinent. Matter not foreign yet wholly unnecessary, or stated with redundancy, 170 PEBPAEATION OF BILL. is censured for prolixity. Judges have differed as to these- points. Sir J. Leach and Sir W. Alexander seem to have thought that relevant matter should not be condemned as impertinent because it was not concisely stated. Lowe v. Williams, 2 Simons and Stuart, 515-517 (1826) ; Bally v. Williams, 1 M'Cleland and Younge, 334 (1825). Lord Eldon held, to the contrary, that relevant matter might be made impertinent by prolixity. Slack v. Evans, 7 Price, 278 n. (1819). The question arose in that case upon a schedule. The Chancellor said : " If in an examination the examinant sets forth tradesmen's bills at length, it is impertinent. If pertinence and impertinence be so mixed that they cannot be separated, the whole is impertinent. So a prolix setting forth of pertinent matter is impertinent. " To the same effect is McMorris v. Elliot, 8 Price, 674 (1820). See also Oompertz v. Best, 1 Younge and CoUyer, 117 (1835). In this case Lord Abinger said he was disposed to agree with Lord Eldon in thinking prolixity imperti- nence, but that it was a question of degree. Here as everywhere each case must be ruled by its cir- cumstances. In the light of the decisions and the warning given by the rules of court, it would appear to be easy for the pleader to state all necessary facts concisely ; to omit all mere de- tails of proof and to avoid scandal and impertinence. If the bill be objectionable no demurrer lies. The remedy as to bills and answers is to file particular exceptions as to each objectionable item, being careful not to make any ex- ception too broad, for if part be good and part bad the whole- exception falls. § 5383. Rules of Court. The 26th Equity Rule of the Supreme Court of the United States on the subject of scandal and impertinence in hills directs that — Every bill shall be expressed in as brief and succinct terms as it reason- ably can be, and shall contain no unnecessary recitals of deeds, docu- ments, contracts or other instruments, in hceo verba, or any other imperti- PREPARATION OF BILL. 171. nent matter, or any scandalous matter not relevant to the suit. If it does, it may, on exceptions, be referred to a master, 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 judge thereof shall otherwise order. If the master shall report that the bill is not scandal- ous or impertinent, the plaintiff shall be entitled to all., costs occasioned by the reference. 27th Rule : 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 exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order when obtained shall be considered as abandoned, unless the party obtaining the order shall, with- out any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall cer- tify that further time is necessary for him to complete the examination. The Pennsylvania Equity Rule IV. is in the same words as Rule 26, adding : " or the court or any law judge thereof may decide thereon without a reference, unless the case shall require it." The 27th Rule requiring particularity in the exceptions, etc., has not been enacted in words in Pennsylvania, but the practice has always required specifications and prompt- ness. The Rules promulgated January 15, 1894, discontinue the office of master " except where decrees or interlocutory orders are to be executed, or their execution supervised by an officer of the court ; as in partition, the sale of real estate, the execution of deeds and the like. " The 8th Pennsylvania Rule in equity provides that — 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, E^nd signed by counsel, describing the particular passages which are considered to be- scandalous or impertinent, nor unless the exception shall be filed within tea days after service of the same upon the party excepting or his counsel. In Insurance Co. v. Bauer, 9 Phila., 147 (1873), this rule- 172 PEEPAEATION OF BILL. was construed in connection with the 4th Rule, providing for reference by the court of a bill alleged to be impertinent, and it was held that the defendant had ten days after ap- pearance in which to file his exceptions. Another vice to be shunned is § 5384. Multifariousness. This is the consequence of avoiding the rule requiring conciseness. In the effort to escape the objection that the bill does not charge enough to carry the case, the pleader may run into the opposite extreme and state too much. Multifari- ousness has been defined " the attempt to embrace in one bill too many objects," or, "the fault of improperly unit- ing in one bill distinct and independent matters, and thereby confounding them." Sir John Leach, in Salvidge v. Hyde, 5 Maddock, 138 ' (1820), said : " In order to determine whether a suit is multifarious, or, in other words, contains distinct matters, the inquiry is not whether each defendant is connected with every branch of the cause, but whether the plaintiff's bill seeks relief in respect of matters which are in their nature separate and distinct. If the object of the suit be single, but it happens that different persons have separate interests, in distinct questions, which arise out of that single object, it necessarily follows that such different persons must be brought before the court in order that the suit may conclude the whole subject." In that case a bill had been filed for an account, and to set aside sales by an executor to himself and one Laying. A demurrer was interposed by Laying, and overruled by Sir J. Leach. Lord Eldon thought that whilst the prin- ciple above quoted was correct, yet in its application the Vice-Chancellor had gone too far, and accordingly the demurrer was allowed. Jacob's Ch. Eep., 151 (1S21). In Turner v. Robinson, 1 Simons & Stuart, 313 (1823), Sir John Leach advanced upon his ruling in the case just quoted, and held that a bill was not multifarious which PEEPAKATION OP BILL, 173" united the accounts of two estates in the same suit, the claim being founded upon the same will which operated on the one estate by devise and on the other estate by appoint- ment. This decision has, however, been doubted. Sir L. Shadvs^ell, in Marcos v. Pehrer, 2 Sim., 330 n., said he could not agree with the ruling in Turner v. Robinson, and could not see how a claimant of the personal estate of two testators could unite the two estates in one suit. Still later it was held that executors of A. could be joined with infant plaintiffs in a bill for an account of two estates. Leivis v. Edmund, 6 Sim., 251 (1833). In a bill for a specific performance the plaintiff cannot include other persons claiming interests. He must fortify his title in some other way. Mole v. Smith, Jacob's Ch. Eep., 494 (1822). So, too, in a bill for a partition, the plaintiff cannot join the holder of an outstanding lease, and pray that the lease be set aside for fraud. For this relief he should file a separate bill. WJialey v. Dawson, 2 Schoales & Lefroy, 367 (1805). Separate infringements of a patent cannot be joined ; Dilhj V. Doig, 2 Ves. Jr., 486 (1794) ; nor of a copy- right ; Ibid.; nor a demand against an executor with a claim against him personally. Ward v. Duke of Northum- berland, 2 Anst., 469 (1796). But where the plaintiff has a general right to the subject claimed he may join several defendants claiming distinct interests. As a right to the sole fishing of a river may be enforced against persons claiming by different defenses. Lord Eed., 147. To same effect. Mayor v. Pilkington, 1 Atk., 283 (1737). A corporation cannot be sued in the same bill to account for estates held for public use and other property held for private charity. Attorncu- General v. Camarthen, Cooper's Ch. Cases, 80 (1805). To same effect, Attorney- Generals. Goldsmiths' Company, 5 Sim., 670 (1834). In this case Sir L. Shad well said : "I apprehend that besides what Lord Eedesdale has laid down upon the sub- ject, there is a rule arising out of the constant practice of 174 PBBPARATIOlSr OF BILL. the court, that it is not competent where A. is sole plaintiff and B. is sole defendant, for A. to unite in his bill against B. all sorts of matters wherein they may be mutually con- cerned. If such a mode of proceeding were allowed, we should have A. fihng a bill against B., praying to foreclose one mortgage ; and, in the same bill, praying to redeem another, and asking many other kinds of relief with respect to many other subjects of complaint." If the charities are to be applied substantially to the same object, one complaint may embrace a number. At- torney-General V. Merchants' Company, 1 Mylne & Keen, 189 (1832). Where the matters alle'ged and the decree asked for against one of the parties are unconnected with the facts stated and the decree prayed for against another, there being no common liability of the defendants in either branch of the bill, the bill is multifarious. Trustees v. Heermans, 1 Kulp, 469 (1881). A bill which joins several defendants and charges several distinct unconnected matters is multifarious. Wray v. Hazlett, 6 Phila., 155 (1866). A bill filed under the Manufacturing Company Act of July 18, 1863, which joins defendants, some of whom are liable to one plaintiff only, some of whom are liable to another, and some of whom are responsible, if at all, for in- dependent violations of the statute, is multifarious. Sheriff V. Oil Co., T Phila., 4 (1868). Where several complainants have each a separate cause of action against one or another of several defendants, on the ground of misrepresentations made by the several de- fendants to the several complainants, with reference to a common enterprise, and the circumstances of each several misrepresentation differ, and there is an ascertained legal measure of damages applicable to each, the proper remedy is an action at law by each person injured against each person who injured him. A bill in equity filed by all so injured against all who injured them, to enforce their rights, is multifarious and defective for misjoinder of parties. Limgren v. Pennell, 10 W. N., 297 (1881), Green, J. PREPARATION OF BILL. 175 A bill may join two good causes of complaint arising from the same transaction, all the defendants being iuter- -ested in the same claim of right, and the relief asked against each being of the same general character. Bishop v. Cow- den, .5 Montg. Co. Law R., 151 (ISSiJ). The plaintiffs need not be interested in an equal degree. Bright v. McCnllough, 1 Legal Rec, £51 (1880). A bill which seeks an account of stock bailed, from the bailee, and those who have received it directly or indirectly from him, is not multifarious. Persch v. Qniggle, 57 Pa. St., 247 (1868). A bill which joins two causes of complaint arising from the same transaction, all the defendants being interested in the same right, is not multifarious. So, where in such case the relief sought is of the same general nature. Btit where distinct, independent and separate causes of com- plaint, requiring different defenses and different decrees, are joined, the bill is multifarious. R. R. Co.^s Appeal, 62 Pa. St., 218 (1869). The bill is not multifarious where all the plaintiffs have a common interest in all the subject-matters of the bill, as against the defendant. City -v. Vandevier,' 8 Phila., 334 (1871). A bill is not necessarily multifarious because it embraces a subject-matter which could be made the basis of numerous suits at law. Freeman v. Stine, 34 Leg. Int., 96 (ISTT). A bill for an injunction against an agent of a railroad ■company who was attempting, without authority, to sell the company's property to another railroad company, and praying for a decree against the first company to compel recognition of plaintiff's right as a stockholder, was dis- missed as multifarious. Whethatn v. R. R. Co. , 8 Phila. , 92 (1871). See Huston v. Sellers, 35 Leg. Int., 262 (1878). To support the objection of multifariousness the differ- ent grounds of suit must be wholly distinct, and each ground must be sufificient to sustain a bill. If they arise out of the same transaction, or a series of transactions forming one course of dealing, and all tending to one end, the objection 176 PREPARATIOSr OF BILL. does not apply. Adcwts v. Manning, 10 W. N., 448 (1881) ;. City V. Gas Trustees, 12 W. N., 477 (1882). There is no inflexible rule by which the question whether a bill is multifarious can be determined. It is a matter which is generally to be settled in each case by its own cir- cumstances. Quin V. Povjer, 18 W. N., 286 (1886). Where the right under which all the plaintiffs claim is exactly the same as to each, and the cause of complaint is- one that is common to all, the complaint of all being against the same defendant for acts done affecting all alike and in the same manner, and the defense, testimony, proofs and decree are the same as to all the plaintiffs, a bill filed by a number of such plaintiffs against the same defendant is not multifarious. Bafferty v. Traction Co., 147 Pa. St., 579 (1802). In Perscli v. Quiggle, 57 Pa. St., 247 (1868), it was ruled that it is not -multifariousness, if a bill seek an account of stock bailed and its product from the bailee and those who have received it mediately or immediately from him, but does not join distinct and independent matters. The principles governing these cases would seem to be : 1. That matters of different nature, although arising out of the same transaction, cannot be joined against the same defendant unless they are homogeneous. 2. That the plaintiff may claim the same thing under distinct titles. 3. Several plaintiffs cannot demand distinct matters against the same defendants. But where they claim one right they may proceed jointly although their titles be distinct. § 5385. The Esmedy Against Multifariousness is by demurrer ; objecting at the hearing is too late. Perscli V. Quiggle, 57 Pa. St., 247 (ISGS) ; Klein v. Bank, 44 Leg. Int., 144 (1887) ; Gas Co. v. (?as Co., 7 County Court Ptep., 277; 24 W. K, 573 (1889). § 5386. Time. Where material, time should be alleged with certainty. PEEPAEATION OF BILL. 177 But in ordinary cases "on or about" has been regarded as sufficient. § 5387. Papers, Writings, etc., necessary to be averred. Do not set these out at length. Eef er to them by date, parties and substance. Add : " ;\ true copy whereof as part hereof is hereto annexed, marlced Exhibit . " Wherever the law requires a writing, the bill must of course aver its existence in exact words. Vf here the plaintiff rests his title on a deed, he must annex a copy or refer to it by place of record. Haneman v. Pile, 161 Pa. St., 599 (1891.) § 5388. Certainty in Averments. It has been held best to follow the particularity of com- mon-law pleading : — As to averment of customs, commons, and ways ; Cressett v. Mytton, 3 Bro. C. C, 181 ; 1 Ves. Jr., 119 (1792) ; Gell y. Hayivard, 1 Vern., 312 (1681). As to lands ; Ryves v. JRyves, 3 Ves., 343 (1797). As to out- standing terms ; Strausbury v. Arhwright, 6 Sim., 181 (1831). As to errors complained of ; Taylor v. Haylin, 2 Bro. C. C, 310 (1788) ; Badger v. Badger, 2 Wallace U. S., 87 (1861). A bill to open a settled account must specify its errors. Dawson v. Dawson, 1 Atk., 1 (1737). So, too, a bill to set aside an award must state the ob- jections. Bouth V. Peach, 2 Anst., 619 (1796). § 5389. Want of Certainty can only be Taken Advantage of by Demurrer. The objection cannot be taken at the hearing. Careiv V. Johnston, 2 Schoales & Lefroy, 280 (1805). § 5 3 so. As to filing interrogatories. Interrogatories must be filed separately. They may be filed at the same time with the bill. Note that under Eules of 1865 the notice filed with the bill was only to appear in fourteen days, and after that 12 178 PEEPAEATION OF BILL. appearance the plaintiff could enter a rule to answer in thirty days. Under the Eules of 1865, the interrogatories could not be incorporated (as theretofore) in the bill, but had to be filed separately with a rule to answer the interrogatories in ten days. Thus there were — 1. A notice to appear. 2. A rule to answer the bill in thirty days. 3. A rule to answer the interrogatories (if any) in ten days. The new Rules of 1894 direct that the notice shall not only be to appear but to appear and answer the bill in fif- teen days. These rules say nothing about interrogatories. § 5391. As to the Kule to Answer Interrogatories. Hence it would seem that if the plaintiff desire to secure an answer to specific interrogatories, he must file them separately from the bill, and the rule to answer is on ten days' notice. But it would seem that plaintiff cannot com- pel an answer to the interrogatories until the, time has ex- pired for answering the bill ; for otherwise he would be in a situation to compel an answer, first to interrogatories, and afterwards to the bill. CHAPTER Vni. BILL FOR ACCOUNT. The Act of June 16, 1836, § 13 (P. L., T89), conferred general equity jurisdiction on the Common Pleas of Phila- delphia for ' ' the supervision and control of partnerships. " The Act of June 13, 1840, § 39 (P. L., 671), extended the jurisdiction of the Philadelphia Common Pleas " to all cases arising in said county over which courts of chancery enter- tain jurisdiction on the grounds of * * ^ account." The Act of February 14, 1857, § 1 (P. L., 39), conferred "on the courts of common pleas of the several counties of the Commonwealth * * * the same chancery powers * * * nowbylawvestedintheCourtof Common Pleas of the * * * County of Philadelphia." This last act renders it unneces- sary to notice the Act of October 13, 1840, § 19 (P. L., 1841, p. 7), which conferred jurisdiction for the " settling part- nership accounts and such other accounts and claims as have heretofore been settled by the action of account- render." The common-law action of account-render, against whom it can be brought, when it does not lie, etc., is all considered in the chapter " Account-render," Brews. Prac, Vol. I., §§ 303-341. Confining our attention here to the bill in equity for an account, it may be sufficient to note the following general outlines : 1. The original jurisdiction arose from the fact that the accounts were often mutual, that they were complicated, that there was a fiduciary relation, that discovery was often needed. 179 180 BILL FOE ACCOUNT. 2. Both parties are plaintiffs. The defendant may have- a decree, may revive, etc. 3. The jurisdiction extends to the appropriation of pay- ments ; to all cases of mutual or complicated accounts ; to trustees, tenants in common, directors ; to contribution to relieve real estate, general average, cases betvs^een sureties, partners ; to waste, patents, accident, fraud and mistake. In Corporation of Carlisle v. Wilson, 13 Ves. Jr., 278 (1807), Lord Chancellor Erskine said : " The principle upon which courts of equity originally entertained suits for an account, where the party had a legal title, is, that, though he might support a suit at law, a court of law either cannot give a remedy, or cannot give so complete a remedy as a court of equity ; and, by degrees, courts of equity assumed a concurrent jurisdiction in cases of account ; for it cannot be maintained that this court interferes only when no remedy can be had at law. The contrary is notorious. * * * The proposition asserted against this bill is, that this court ought to refuse to interfere, by directing -^n account, if an action for money had and received, or an indebitatus assumpsit, can be maintained. That proposition cannot be supported. The proposition is, not that an account may be decreed in every case, where an action for money had and received, or indebitatus assumpsit, may be brought (and certainly indebitatus assumpsit lies for tolls) ; but that, where the subject cannot be so well investigated in those actions, this court exercises a sound discretion in decreeing an account." See Myers v Bryson, 158 Pa. St., 217 (1893). In Fowle v Lawrason, 5 Peters, 503 (1831), Marshall, C. J., said : " That a court of chancery has jurisdiction in matters of account cannot be questioned ; nor can it be doubted that this jurisdiction is often beneficially exer- cised ; but it cannot be admitted that a court of equity may take cognizance of every action, for goods, wares and merchandise sold and delivered, or of money advanced, where partial payments have been made, or of every con- tract, express or implied, consisting of various items, on which different sums of money have become due and differ- BILL FOR ACCOUNT. 181 ent payments have been made. Although the line may not be drawn with absolute precision, yet it may be safely affirmed that a court of chancery cannot draw to itself every transaction between individuals in which an account between parties is to be adjusted. In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. It is the appropriate tribunal. But in transactions not of this peculiar character, great complexity ought to exist in the accounts, or some diffi- culty at law should interpose, some discovery should be required, in order to induce a court of chancery to exercise jurisdiction. 1 Madd. Chan., 86 ; 6 Ves., 136 ; 9 Ves., 43Y. In the case at bar these difficulties do not occur. The plaintiff sues on a contract by which real property is leased to the defendant, and admits himself to be in full posses- sion of all the testimony he requires to support his action. The defendant opposes to this claim, as an offset, a sum of money due to him for goods sold and delivered, and for money advanced, no item of which is alleged to be con- tested. We cannot think such a case proper for a court of chancery." See Elmer v. Hall, 148 Pa. St., 345 (1892). Where a person is a general agent for another for the custody and management of stock delivered to him, and for collection of its dividends, etc., since an action of account- render may be maintained against him as bailiff, the Act of October 13, 1840, makes it a case for chancery jurisdiction. Persch v. Quiggle, 57 Pa. St., 247 (1868). 4. If an account has already been stated the bill should be filed to open it, and the errors must be specified. If the bill be for a general account and the defendant sets forth a stated account, the plaintiff must amend. A stated ac- count is prima facie a bar until errors are specified. If fraud, misrepresentation or mistake can be shown, the stated account will be opened. Shirk's Appeal, 3 Brews., 119 (1869). An account rendered should be objected to in a reasonable time. Calket v. Ellis, 10 Phila., 375 (1875). Its acceptance may be implied. Story's Equity Jurisprudence, Vol. I., §§ 526-529. 182 BILL FOB ACCOUNT. 6. A partnership bill for account, where the firm still exists, must pray dissolution, except in special cases. 6. Where no discovery is sought, and the accounting is^ all on one side, a bill will not lie. Gloninger v. Hazard, 42 Pa. St., 389 (1862) ; Building Association's Appeal, 83 Id., 441 (187T); GrubVs Appeal, 90 Id., 228 (18Y9) ; Eail- road Co.'s Appeal, 99 Id., Ill (1881) ; Paton v. Clark, 156 Id., 49 (1893). § 6382. Who may Pile a Bill for an. Aceoiint. A principal may demand an account of his agent. Bank v. Bank, 1 Pars., 180 (1846), aflfirmed by the Supreme Court ; Thistle v. Lippincott, 14 W. N., 139 (1883). A bailor may require an account from his bailee where stocks are pledged as collateral for claims against the bailor held by the bailee. Conyngham's Appeal, 5Y Pa. St., 474 (1868). See Bierbower's Appeal, 107 Pa. St., 14 (1884). A widow refusing to take under the will may maintain a bill to secure an account of the rents and profits of the real estate until partition has been made. McNickle v. Henry, i Phila., 87 (1871). See NeeVs Appeal, 3 Penny- packer, 66 (1882). A cestui que trust may require his trustee to account.. SchocKs Appeal, 33 Pa. St., 351 (1859) ; Potter v. Hoppin^ 10 Phila., 396 (1875). A partner may compel his copartner to account where the latter had fraudulently compelled a settlement by withholding the firm's books. Abrahams v. Hunt, 26 Pa.. St., 49 (1856). A surety of an assignee may be required to account at the suit of the assignee and a co-surety for any part of the estate which may have come into his hands. Belsterling V. Prowattan, 6 Phila., 40 (1865). An executor who sells real estate for the payment of debts may be compelled to account for the rents, issues and profits to the payment of purchase-money and execution of deed. Gordon's Appeal, 18 W. N., 23 (1886). Other cases may be found illustrating the right of a party interested to compel an account in equity. BILL FOR ACCOUNT. 183 § 6393. A Tenant in Common can Sue a Co-tenant for an account. The Act of April 25, 1850, § 24 (P. L., 573), enables tenants in common of mines to sue in equity for an account. All the tenants shall be made parties to the bill, service upon such as are non-residents to be made according to the direction of the court. Section 25 of the act allows an appeal within one year from final de- cree, and provides for an affidavit that the same is not in- tended for delay, and for security. Persons claiming to be such tenants in common, whose tenancy shall be resisted or denied, may have their rights adjudicated under the first section of the Act of April 22, 1856 (P. L., 502). Section 2 of the act provides for an appeal within one year upon the terms provided in cases of appeal from decrees of the Common Pleas of Philadelphia. The right to an account, under these acts, was sustained in Coleman v. Coleman, 62 Pa. St., 252 (1869), and Alden^s Appeal, 93 Id., 182 (1880). \n Frishee' s Appeal, 88 Id., 144 (1878), it was held, That one out of possession, who claimed to be a joint owner of an oil well, could not file a bill for an account against his alleged co-tenants until the question of title was first established in a court of law. § 5394. When the Bill will Lie. A contract imposing mutual duties will furnish ground for a bill. The relief should not be refused on the ground that it is a bill for specific performance and the plaintiff had failed to perform his part of the contract. Packer's Appeal, 128 Pa. St., 421 (1889). A stockholder can claim an account from his associates for stock, etc., surrendered by him to create a guarantee fund. The defendants cannot set up that the whole was swept away by a sale under a mortgage. Huston's Appeal, 127 Pa. St., 620 (1889). Where the parties undertake to transact business for each other with third parties, to settle claims, pay debts, or do anything which establishes an agency or creates 184 BILL FOR ACCOUNT. a fiduciary relationship between them, a bill in equity or an action in account-render is proper ; Beeside's Executor V. Beeside, 49 Pa. St., 322 (1865) ; but where each under- takes, for the other, only to pay out money deposited with them, in the way and manner, at the times and to the per- sons the depositor may direct, an action of assumpsit will lie, although the balances have not been struck. Bichey V. Hathaway, 149 Pa. St., 207 (1892). Land was conveyed by deed with the habendum, "to have and to hold the said premises * * * without, how- ever, the right to drill or mine for petroleum, carbon oil or natural gas, which right is not intended to be conveyed, but is forbidden to both parties hereto. " The grantee sub- sequently drilled a producing oil well on the land conveyed. The grantor filed a bill for an injunction and an account. The injunction was granted, but an account was denied upon the ground that the plaintiff had failed to prove : (1) that tlfe title to the oil in the lot sold was in himself, and (2) that the provision in the deed was to protect the grantor's unsold lots adjoining the one conveyed from being drained by operations for oil on lots sold. Acheson V. Stevenson, 146 Pa. St., 228 (1892). Certain partnership agreements provided that in case of the death of either partner his interest should pass to and become the property of the surviving partner. One of the partners died, and his administrator, who was also his father, assigned his interest, as administrator and heir, to a third party who had notice of the surviving partner's claim. It was held that the surviving partner could file a bill for the cancellation of the assignment and for an account. Blood v. Ludlow Carbon Co., 150 Pa. St., 1 (1892). In Shillito v. Shillito, 160 Pa. St., 167 (1894), a testator devised land to his sons, and imposed upon them the duty of maintaining his widow and daughters. One of the sons performed this duty and filed a bill for contribution against the other sons. The pleadings raised a question of account- ing. Held, That the bill would lie. Although an executor's account has been confirmed by BILL FOR ACCOUNT. 185 "the Orphans" Court, the administrator d. b. n. c. t. a. of the testator may file a bill in equity in the Common Pleas to set aside a power of attorney given by the testator to the executor, and to compel the latter to account for moneys alleged to have been fraudulently appropriated to his own use while acting as attorney in fact for the testator in the lifetime of the latter. Fidelity Ins. Co. v. Gazzam, 161 Pa. St., 531; (1804). A claim by a surviving partner against the estate of the deceased partner, involving the settlement of partnership accounts, should be made in the Common Pleas by bill in equity. The Orphans' Court has no jurisdiction in such case. Miller's Estate, 136 Pa. St., 349 (1890) ; Weigley V. Coffman, 144 Pa. St., 4S9 (1891). A doubt as to equitable jurisdiction will not prevail after a full hearing upon exceptions to a master's report, and after heavy costs have been incurred. Drake v. Lacoe, 157 Pa. St., 18 (1893). Where it appeared from the bill that a final decree could be had only after investigation of complicated accounts of long standing, and the evidence before the master showed that no accounting was necessary, -the bill was not dismissed. Ibid. After the defendant has allowed the case to go to a master, whose repoi't has been filed after all the testimony has been taken, a bill for an account will not be dismissed although there may be an adequate remedy at law. Searight v. Bank, 162 Pa. St., 504(1894) ; Evans v. Goodiuia, 132 Pa. St., 136 (1890). § 5395. When the Bill will not Lie. Acquiescence. A settlement adopted for years can only be disturbed by showing that there was a mistake ; and this must be done in a reasonable time. Varnefs Appeal, 16 Atlantic Rep., 98(1888). Wlien new tenant recognized. If a lease be amicably forfeited and the premises be then let to another tenant, no account will lie against the first lessee. Reed's Appeal, 7 Atlantic Eep., 174(1886). Owners in common. Either of two owners of a patent is at liberty to work the patent without accounting to the 186 BILL EOK ACCOUNT. other for profits. In the House of Lords, Steers v. Bogers^ 62 Law Jour. Eep. (N. S.) (Ohanc. & Bank. Div.), 6Y1 (1893). Purchasers not liable to account for improvements put- on the land by their grantor's partner before the purchase. Mather's Appeal, 1 Central Eeporter, 342 (1885). The Supreme Court will not revise a decree for an ac- count without the evidence. Wagenhorsfs Appeal, 12&- Pa. St., 127 (1889). Where two persons, interested jointly in a stock specula- tion, with no unsettled accounts between them, agreed that, one might sell his half of the stock at his discretion, which he accordingly did, while the other party held his stock for a rise, it was decided that neither was thereafter liable to- account to the other as partners. Keller v. Swartz, 1ST Pa. St., 65 (1890). A guardian, who was a member of a manufacturing- company, loaned to it his ward's money. While proceed- ings were pending in the Orphans' Court upon the settle- ment of the guardian's final account, the ward filed a bill against the members of the company, including the guard- ian, for discovery and an account. It was held, That the- loan having been made in good faith and solely in the in- terest of the ward, the bill against the members other than the guardian could not be sustained, and that as to the guardian the Orphans' Court proceedings were a bar to the^ bill for an account. Bau v. Small, 144 Pa. St., 304 (1891). The bill will not lie for a claim which is in effect for breach of a contract. Baton v. Clark, 156 Pa. St., 49 (1893).. § 5396. Arbitration Clauses in Partnership Agreements. Sometimes articles of copartnership contain a clause to- the effect that "in case of any difference between the parties, in respect to the winding up and settlement of the business, such difference shall be submitted to an arbitration." It should be observed that there is a clear distinction. between a mere agreement to arbitrate and a stipulation constituting a designated person the tribunal to determine questions which may arise or may have arisen. Where a. BILL FOR ACCOUNT. 187 contract provides for the determination of a contractor's claims by the judgment of a particular person, until he has. spoken, no right arises which can be enforced at law or in equity. Snodgrass v. Gavit, 28 Pa. St., 221 (185T) ; Leech V. Caldwell, 23 Leg. Int., 364 (1866) ; Navigation Co. v. Fenlon, 4 W. & S., 205 (1842) ; McGheeheny. Duffield, 5 Pa. St., 497 (1846) ; Lauman v. Young, 31 Id., 306 (1858) ;, Herdic v. Bilger, 47 Id., 60 (1864) ; Reynolds v. Caldwell, 51 Id., 298 (1865) ; O'Reilly v. Kerns, 52 Id., 214 (1866) ;. Howard v. R. R. Co., 69 Id., 489 (1871) ; Flaherty v. Ins. Co., 1 W. N., 352 (1875) ; Quigley v. DeHaas, 82 Pa. St., 267 (1876) ; Hartupee v. City, 97 Id., 107 (1881) ; Hostetter V. City, 107 Id., 419 (1884) ; Bowman v. Stewart, 165 Pa. St., 395 (1895). The English case of Scott v. Liverpool, 28 Law Jour. Eep. (N. S.) (Chanc), 230 ; 3 De Gex & Jones, 334 (1858), is. to the same effect. Such an agreement was applied to- existing actions, and enforced in Hooper v. Hooper, 1 Swabey & Tristram, 602 (1860), and by staying the suit and by attachment in Williams v. Lewis, 7 Ellis & Black- burn, 929 (1857). The agreement to refer was enforced in, Scott V. Avery, 5 House of Lords Cases, 811 (1S5G). But as a general rule, all contracts prohibiting parties from bringing an action for the redress of an injury arising- from the breach of a contract are void as contrary to public policy. 2 Addison on Contracts, § 1141. See, in support of this proposition. Gray v. Wilson, 4 Watts, 39 (1835) ;, Mentz V. Ins. Co., 79 Pa. St., 479 (1875) ; Rea's Appeal, 13- W. N., 546 (1883) ; Wright v. Ins. Co., 110 Pa. St., 29 (1885) ; Drhew v. ' Altoona, 121 Id., 401 (1888) ; Rogers v. Davidson, 4 Pennypacker, 472 (1884) ; Hamilton v. Hart, 125 Pa. St., 142 (1889). In these cases the agreements to- refer were taken out of the general rule heretofore stated, and qualified for special reasons. § 5397. A Mere Agreement to Arbitrate -witliout Naming any" Arbitrator will not Bar the Filing of a Bill. The distinction above adverted to has been recognized. 188 BILL FOE ACCOUNT. in Snodgrass r. Oavit and Scott v. Liverpool, already cited, and has been followed in Horton v. Sayer, 29 Law Jour. Eep. (N. S.) (Exch.), 28 ; 4 Hurlstone &^ Norman (Exch.), 643 (1859) ; and Cook v. Catchpole, 34 Law Jour. Eep. (N. S.) (Chanc), 60 (1865). In Horton v. Sayer, the coal lease contained a clause prohibiting the bringing of any action at law or in equity without submitting to arbitration. The court held, That this clause was void as ousting the jurisdiction of the courts. A very strong arbitration clause is to be found in the partnership agreement reported in Cook v. Catchpole ; and the defendant moved for a cessat under section 11 of the Oommon Law Procedure Act, which provides for a stay where parties have agreed to refer. Vice-Chancellor Wood held, That this did not bind the plaintiff , because tlje arbi- trator could not decree a dissolution, and that the arbitra- tion clause did not apply to a case vv^here it was charged that the partnership articles had been " broken through." A submission without an award is not a bar to filing a bill for an account. Carr v. Raleigh, 2 Phila., 242 (1:^57). In order that the parties may be estopped from main- taining an action, there shotild be a stipulation that the award shall be conclusive, as well as a waiver and release of all right of action under or by virtue of the contract. Bailroad Company v. Wilcox, 48 Pa. St., 161 (1864) ; Hostetter v. City, 107 Id., 419 (1884). A stipulation that the award shall be "final and con- clusive " does not prevent the filing of exceptions. There must be an express waiver of appeal or exception. Mussina V. Hertzog, 5 Binn., 387 (1813) ; Andrews v. Lee, 3 P. & W. 99 (1831) ; Rogers v. Playford, 12 Pa. St., 181 (1849) ; McCahan v. Reamey, 33 Id., 535 (1859). An award procured by fraud, with which the defendant is connected, will be set aside upon a bill in equity. Hartupee v. City, 131 Id., 535 (1889). See Hostetter v. City, 107 Id., 419 (1884). The award must be certain, in order to sustain a suit upon it. Etnier v. Shope, 43 Pa. St., 110 (1862) ; Stanley BILL FOR ACCOUNT. 189' V. Southwood, 45 Id., 189 (1863) ; Connor v. Simpson, 104 Id., 440 (1883). And should be final and complete as to all matters included in the submission. Hamilton v. Hart, 125 Id., 142 (1889). See Chapter on " Arbitration and Eef- erence," Brews. Prac, Vol. II., Chapter XXXVIII. § 5398. What is Exclusion by One Partner of his Copartner. Exclusion (from ex, out ; claudere, to shut) means literally the shutting out. In partnership law, it does not mean the closing of a door, but the barring of a right. By exclusion the law does not understand a quiet, un- opposed monopoly by one partner of all the labor in a cer- tain department, or indeed of all the departments, but some act or word in denial of the rights of his copartner. In Gowan v. Jeffries, 2 Ashm., 296 (1840), the com- plainants charged that the defendant had instructed the servants not to hold communication with them, and further, that the defendant had refused to give the com- plainants information of the state of the concern. These were acts of exclusion. To the same effect is Page v. Vankirk, 1 Brews. liep., ■2S-2 (1866). § 5399. What Entitles a Plaintiff to have a Partnership Dis- solved and a Receiver Appointed. Mr. Justice Story, in treating of the power of a court of equity ' ' to dissolve a partnership during the term for which it is stipulated," says (Story's Eq. Juris., § 673) : ' ' Such a dissolution may be granted in the first place on account of the impracticability of carrying on the under- taking at all, or according to the stipulations of the articles. " In the next place, it may be granted on account of the insanity or permanent incapacity of one of the partners. "In the next place, it may be granted on account of the gross misconduct of one or more of the partners. "But trifling faults and misbehavior, which do not go to the substance of the contract, do not constitute a suf- ficient ground to justify a decree for a dissolution." 190 BILL FOR ACCOUNT. To the same effect are Adams' Equity, 242, 243 ; Gow on Partnership, 240-248 ; 2 ¥/aterman's Eden on Inj., 359 et seq. ; CoUyer on Partnership, §§ 101-105. To these may be added our Pennsylvania authorities : 'Oowan V. Jeffries, 2 Ashmead, 296 (1840), and Sloan v. Moore, 37 Pa. St., 217 (1860). The case of Stochdale v. Ullery, 87 Pa. St., 486 (1860), establislies the right of a partner to enjoin against the use of the partnership assets for payment of the private debts .of another member of the firm. The case of Harrison v. Tennant, 21 Beav., 482 (1856), •goes far beyond all prior decisions in decreeing a dissolution before the expiration of the partnership articles, in the absence of any breach thereof, and merely upon the ground of a change of circumstances, forfeiting confidence and ■creating mistrust. In Master v. Xirton, 3 Ves. Jr., 75 (1796), the Master of the Polls, Sir Eichard Pepper Arden, decreed a dissolu- tion of a bankrupt firm, the defendant having allowed a friend, " contrary to the opinion and desire, and without "the consent of the other partner, to draw upon the partner- ;ship, to the extent of £5,000." In Norway v. Rowe, 19 Ves. Jr., 144 (1812), the defend- ant was a tenant in common in certain mines and was charged with wasting the property, and excluding those who were entitled with him to the benefit of the license. "Lord Eldon refused the motion for a receiver, on the ground that there was no evidence of mismanagement. In Waters v. Taylor, 2 Vesey & Beames, 299 (1813), a partnership in the opera-house was dissolved by Lord Eldon, the conduct of the parties making it impossible to <;arry it on, upon the terms stipulated. In Ooodman v. Whitcomb, 1 Jacob & Walker's Chanc. H., 569 (1820), the charges against the defendant were that he had prevented the plaintiff from inspecting the books, and had sold goods at an under price, and exchanged others for household furniture,, which he had appropriated to his own use. It was further charged that he had refused to -enter receipts in the books. Lord Eldon called this last BILL FOE ACCOUNT. 191 •x^liarge a circumstance of great imi^ropriety ; but he re- fused the motion for an injunction. He asked, with great force, " What right has the court to appoint a receiver, and make itself the manager of every trade in the kingdom ? " and added : " Where partners differ, as they sometimes do when they enter into another kind of partnership, they should recollect that they enter into it for better and worse, and this court has no jurisdiction to make a separation be- tween theixi, because one is more sullen or less good- tempered than the other." As to the case before him, he .said, that to justify a dissolution, there must be conduct .'imounting to an entire exclusion of the partner from his interest in the partnership. In Chapman v. Beach, Id., 573 (1820), the same judge said the court would not ap- point a receiver unless there had been such an abuse of good faith as to entitle the plaintiff to a dissolution. In Marshall v. Colman, 2 Jacob & Walker's Clianc. Eep., 266 (1820), the plaintiff applied for an injunction to restrain the firm from omitting his name to letters, etc., the articles requiring all papers to be in their joint names. Lord Eldon refused the injunction without costs, because he doubted his right to enjoin without decreeing a dissolu- tion, and because the neglect had not been studied, inten- tional, prolonged and continued. He also laid stress upon the fact that the complainant had signed his name for self and partners. Eeferring to cases in which a partner raises money for "his private use on the credit of the firm, he said : " The court interferes then because there is a groimd for dissolv- ing the partnership, but then the danger must be such, there must be that abuse of good faith between the members of the partnership, that the court will try the question whether -the partnership should not be dissolved in consequence." In Loscombe v. Russell, 4 Simons' Rep., 11 (1830), Vice- Chancellor Shad well said: "With respect to occasional breaches of agreements between partners, when they are not of so grievous a nature as to make it impossible that ihe partnership should continue, the court stands neuter." In Hall V. Hall, 3 MacNaghten & Gordon's Eep., T& 192 BILL FOR ACCOUNT. (1850), Lord Chancellor Truro dismissed a motion for a, receiver. The charge against the defendant was, that he had interfered with the plaintiff exercising his rights as a part- ner, and had in several particulars acted contrary to the articles, specifying among such particulars a refusal by de- fendant to open a joint banking account according to the terms of the articles. It was ruled that a receiver would be appointed where the conduct of the defendant endangers the existence of the partnership concern. In Smith v. Mules, 9 Hare's Eep., 556 (1851), one of the defendants was charged, amongst other things, with an omission to enter receipts. Vice-Chancellor Turker held, This was not of itself sufficient, but that'it should be shown that the omission was knowingly and wilfully made. The dissolution was decreed on other grounds. In addition may be cited the decision in Anderson v. Anderson, 25 Beavan, 190 (1857), as opposed to the doctrine of dissolving partnerships upon slight grounds. There the defendant was clearly guilty of a breach of the partnership articles, for he had given a guarantee without his partner's consent, and the agreement expressly prohibited this under the penalty of a dissolution. But the decree was refused. (See Chapter on "Eeceivers " in this book.) § 5400. What the Bill for Account should Contain. 1. If founded on a partnership the bill should state the history of the formation and life of the firm ; all the members should be named ; the articles, if in writing, should not be inserted in the body of the bill, but a copy should be at- tached and referred to as an exhibit. Eenewals should be stated. If a dissolution has taken place or a death has occurred all should be averred. The reception by the de- fendant of the cash, his refusal to account, the withholding of the books or the making of false entries, and all com- plaints against the defendant, should be set forth clearly. If there has been no dissolution it is usual to pray for a de- BILL FOR ACCOTTNT. 193 cree to that effect. Where necessary, the appointment of a receiver should be asked. The death of a partner generally works a dissolution, and entitles the survivor or the personal representatives of the deceased to an account. 2. Where there has been no partnership the facts estab- lishing the plaintiff's right to an account and the defendant's liability to render it should be set forth with clearness. 3. The bill must aver an indebtedness to the plaintiff at the time of filing the bill. Volmerv. McCauley, TPhila., 382 (1870) ; Metz v. Farnham, 8 Id., 267 (1871). § 5401. Form of Bill for Partnership Account, for Dissolution and for a Receiver. In the Couet of Common Pleas, No. , for the County of Philadelphia. Sitting in Equity. Term, 189 . No. To the Honorable the Judges of the said Court : A. , of the City of Philadelphia, merchant, brings this his bill against B., also of said city, merchant, and thereupon the plaintiff complains and says : 1. That on or about the day of , A. D. 1893, the said B. proposed to the plaintiff that they should enter into partnership for the term of one year for the purpose of , in said city, and in consequence of said proposal a partnership was formed between the said B. and the said plaintiff on the day of , 1893, for the purpose of , in said city. Said partnership was to continue one year from said date, each party was to contribute $50,000, and each bound himself to devote his time to said business and to enter into no other business during said term. The terms of said copartnership were reduced to writing. A copy thereof as part hereof is hereto attached marked " Exhibit A." 3. That the plaintiff did contribute his sum of $50,000, the said business was established, and the plaintiff devoted thereto his time and skill with fidelity. 3. But the said B., his agreement with the plaintiff not regarding, did not contribute |50,000 or any sum whatever to said business. And the said B. has so mismanaged himself and said business as to involve its affairs in loss. The said B. has sold merchandise to persons whom he knew to be irresponsible ; he has taken cash from the drawer to the amount of $10,000 which he had no right to take ; he has appropriated it to his private pur- poses, and he has wholly omitted to liave himself charged with any part thereof. He has refused the plaintiff access to the books and accounts and has made false entries therein to cover up his mismanagement. 13 194 BILL FOR ACCOUNT. 4. That the said defendant is indebted to the said plaintiff, and there is a balance due said plaintiff by said defendant. 5. The plaintiff charges that the said defendant is irresponsible finan- cially, and that unless the said partnership is dissolved, further and greater losses wiU be inflicted upon the plaintiff and the said business by the acts of the defendant, to the great and irreparable loss of the plaintiff. Wherefore the plaintiff needs relief and he prays : 1. That a dissolution of said partnership be decreed. 2. That the defendant be, pending this bill, specially and on final hear- ing, perpetually restrained from buying, selling or collecting for said firm, from taking any of its goods or cash, from purchasing in the firm name, and from interfering in any manner with said firm, or its business or property. 3. That an account be stated of aU and singular the partnership trans- actions and dealings, and that the defendant be decreed to pay to plaintiff what shall upon such accounting appear to be due to plaintiff from the defendant. 4. That a receiver be appointed to take charge of said firm, and its books, property and business. 5. General relief. (Signature of counsel,) (Affidavit of plaintiff.) Solicitor pro Plaintiff. Attach "Exhibit A." § 5402. When Certificate of Counsel is Needed to Bill. The Act of October 13, 1840, § 19 (P. L., 1841, p. 7), con- ferred on all the courts of common pleas the jurisdiction of courts of chancery in settling partnership accounts, other accounts, etc. It directed that "no bill in chancery shall be entertained unless the counsel filing the same shall cer- tify that, in his opinion, the case is of such a nature that no adequate remedy can be obtained at law, or that the remedy at law will be attended with great additional trouble, inconvenience or delay." It was held, That whilst the certificate was necessary to confer jurisdiction, its omission was no ground of de- murrer and that it might be added as an amendment. Neither the act nor the decisions could apply to partner- ship cases, because in 1836 (four years before the Act of 1840) jurisdiction had been expressly conferred in Philadelphia as to " the supervision and control of partnerships " without requiring any certificate (P. L., 789) ; and the Act of Feb. 14, 1857 (P. L., 39), extended the Act of 1836 throughout the State. BILL FOR ACCOUNT. 195 In Bachman v. Einhorn, 5 W. N., 250 (18Y8), a de- Tnurrer because of absence of certificate was overruled. § 5403. Common Affidavit to Bill. The usual affidavit is "that the facts stated of the plaintiff's own knowledge are true, and those stated upon the information of others he believes to be true. " This is generally added to bills of account. It is not necessary in all cases. § 5404. When an Ex Parte Injiinction is asked, or a Motion Made for the Appointment of a Receiver without Notice, a Special Affidavit must be Presented. This affidavit may be a copy of the bill thrown into the shape of an affidavit. § 5405. Form of Special Affidavit. A. V. B. (Court, Term and No.) City and County of , ss. : A., having been duly sworn according to law, doth depose and say , that about the day of , A. D. 1893, the said B. proposed to the de-ponent (here insert all the facts averred in the bill, omitting the u-ords x^laintiff and defendant, employing the word deponent for plaintiff , and giving defendant's name. Other facts may be added. Other affidavits may be presented. It is best to secure as many as possible. No prayers are inserted in the affidavit). Sworn to and subscribed before me| this day of 189 . p- Notary Public. S 5406. Form of Bill for Account Against a Partner on a Parol Contract. To the Honorable the Judges of the Court of Common Pleas, No. , for the County of Philadelphia : Sitting in Equity. Term 189 . No. H. T. W., of the county aforesaid, brings this his bill against T. T. J., and thereupon the plaintiff complains : 1. That heretofore, to wit, on the day of , in the year of Lord , at the county aforesaid, the plaintiff and T. T. J., also of •our 196 BILL FOE ACCOTJNT. said county, merchant, made and entered into a certain parol agreement of partnership, the terms, articles and stipulations of which were as follows, to wit : that the plaintiff was to be associated with the said T. T. J. , and the said T. T. J. was to be associated with the plaintiff for the design and pur- pose of buying and purchasing casks of , containing pounds, then and there offered for sale by , also of said city, mer- chants, and after said purchase should be effected to sell and dispose of the same and to divide the profits arising and accruing from such sale equally and evenly between the plaintiff and the said T. T. J. ; all loss on said purchase to be shared in the same manner. And the plaintiff and the said T. T. J. then and there further stipulated and agreed that the said T. T. J. should advance the money for said purcliase, and the said plaintiff was to devote his time, care and skill to said transaction ; the said T. T. J. so entering into all and singular the stipulations and agreements^ set forth and described, in consideration of the time, care and skill by the plaintiff, to be so employed in said purchase and sale, and in consideration of the one-half of the profits anticipated to be realized, and the said plaintiff entering into all and singular said stipulations and agreements in considera- tion of the capital to be employed and advanced by the said T. T. J., and of the one-half of the said anticipated profits. And the plaintiff further showeth that said arrangements and agreements were in all respects mutual, and by the terms thereof a mutual partnership for the purpose aforesaid was mutually formed, made and entered into by and between the said plaintiff and the said T. T. J. 2. And the plaintiff further showeth that in pursuance of said agree- ment and in fulfillment of the terms of said mutual partnership the plaintiff has devoted his time, care and skill to the purposes of said purchase and sale, and has at all times well and faithfully kept, executed and performed all and every his agreements, undertakings and covenants, but that on the contrary the said T. T. J. has from the day and year aforesaid to the present time utterly failed, neglected and refused to keep and perform the under- takings so by him stipulated to be observed and kept. 3. And the plaintiff f m-ther showeth that in pursuance and fulfillment of the terms of said mutual partnership the plaintiff purchased from the said the said casks of , containing in the whole pounds of , with the proper funds of the said T. T. J. by him to the plaintiff for that purpose advanced. That the plaintiff in this manner paid said for the same the sum of $ . That after said purchase was in this manner effected the said was taken to the stor& of the said T. T. J. and was subsequently, to wit, on the day of , in the year of our Lord , at the county aforesaid, sold by him, the said T. T. J., in pursuance of the terms of said mutual partnership, to Messrs. C. H. & B., also of said city, merchants, for the price or sum of I . Which said sum of $ thus arising from said sales was paid to and received by him the said T. T. J. under and subject to the terms of the mutual partnership aforesaid then and there subsisting between the plaintiff and the said T. T. J. 4. And the plaintiff further showeth that the said T. T. J. was upon the BILL FOR ACCOUNT. 197 day of , in the year of our Lord , at the county aforesaid, the receiver of tlie moneys of the plaintiff arising and accruing from the purchase and sales of said and from the terms of said mutual partnership as above set forth for the common use, benefit and profit of them, the said T. T. J. and the said plaintiff, and at said time the said T. T. J. received of the plaintiff's money at the county aforesaid by the hands of the said Messrs. C. H. & B. the sum of $ , and thereof ought to render the said plaintiff a reasonable account on demand. 5. And the plaintiff charges that the said defendant is indebted to the said plaintiff and there is a balance due said plaintiff by said defendant. 6. And the plaintiff charges that though often by the plaintiff requested so to do, to wit, on the day and year aforesaid, at the county aforesaid, the said T. T. J. has hitherto refused to render and hath not yet rendered a reasonable account of the moneys so by him received as aforesaid, but vrholly refuses so to do. Wherefore the plaintiff needs equitable relief and he prays : 1. That the said T. T. J. make full and complete answers to all the matters herein averred. 3. And that he, the said T. T. J., may be decreed to come to a just and fair account with the plaintiff for all money received by him as aforesaid. 3. And that he, the said T. T. J., may pay to the plaintiff what upon such account shall appear to be due to the plaintiff. 4. And further, that the plaintiff may have such further and other relief in the premises as to your honorable court shall seem meet. Solicitor pro Plaintiff. (Add affidavit.) § 5407. Form of Bill by Partner for an Account, to set aside an Award of Arbitrators for G-ross Misconduct, for Pay- ment of a Claim not Considered by the Arbitators, etc. In the Court op Common Pleas, No. , for the County of ■P. C, Plaintiff, I ^^^^^^g _ ^^_ _ S.C, Defendant. ) In Equity. To the Honorable the Judges of said Court : P. C, the plaintiff, of , brings this his bill of complaint against J. C. , the defendant, of , and plaintiff complains and says : I. Tliat on the day of , A. D., 18 , the plaintiff and S. D. and the defendant entered into a copartnership, to carry on the business. That articles of agreement were duly executed on the said day of , A. D. 18 , by and between the plaintiff, the said defendant and the said S. D., wherein and whereby it was agreed that said copartners would not at any time use, exercise or follow the business of during the continuance of said copartnership, to their private benefit and advantage, but that they would use their best endeavors for their joint interest, profit and advantage. It was also therein agreed that the profits 198 BILL FOR ACCOUNT. and losses should be equally divided among the said partners, and that saidL partners should have free access to the books of said firm, and that each of said partners would, every three months or oftener, if required, render an account of all profits and increases by either of them made, and upon the- dissolution of said copartnership they would make a final account and equally divide the profits of the said business. A copy of the said articles of agreement is hereunto annexed and marked "Exhibit A." II. That the plaintiff and the said defendant and S. D. continued to carry on the said business under the said agreement until the year 18 , when the said S. D. withdrew from the said copartnership, leaving the plaintiff and said defendant the sole remaining partners under said agree- ment, who continued to conduct the said partnership and the business there- ■ of until the month of , A. D. 18 . The said defendant then withdrew from the said copartnership, having- previously, to wit, on the day of , A. D. 18 , notified plaint- iff of his intention so to do. III. That while plaintiff and the said defendant were conducting the- business of under the said agreement, and while the same was in full force, the said defendant on the day of , A. D. 18 , in viola- tion of the said agreement, entered into anagree ment in writing with. , to furnish for the sum of dollars. The plaintiff avers that the said defendant associated with himself in the said contract and agreement for the furnishing of said the following parties, viz.. E. C. S., P. D., J. H. K. and J. M., and that subsequently the said parties assumed the name of C, S. & Co., and agreed to share equally the profits accruing from the said undertaking. IV. The plaintiff further shows that the said defendant while prosecut- ing, with the above-named parties, the , incurred expenses which he, the said defendant, charged to the partnership account of plaintiff and the' said defendant. The plaintiff avers that the said firm of C, S. & Co. received at vari- ous times from the said , during the progress of the work under the- said contract, prior to the said month of , A. D. 18 , a large amount of money, which plaintiff is informed has been equally divided between the said defendant and the said E. C. S., P. D., J. H. K. and J. M. V. The plaintiff further charges that he called upon said defendant after- a large amount of money had been received from said , and divided by said defendant and the said E. C. S., P. D., J. H. K. and J. M. , and that plaintiff then demanded from said defendant the share of said moneys, which of right belonged to him. The said defendant, however, refused to- pay plaintiff the share which of right belonged to him, but on account thereof paid plaintiff the sum of dollars, stating, that was all he, the said defendant, would pay plaintiff for awhile. Since then plaintiff has frequently demanded from said defendant the balance of his share of the' profits arising under the said contract between said and the said defendant, and said E. C. S., P. D., J. H. K. and J. M., but said defendant still neglects and refuses to pay thf same to plaintiff, although the said. BILL FOR ACCOUNT. 199 profits so received by said defendant and said S., D., K. and M., and divided among them, amount to more than sixty thousand dollars. VI. The plaintiff avers that by reason of the engagement of the said defendant in the said business of the said firm of C, S. & Co., the partnership existing between plaintiff and the said defendant was deprived of the skill, industry and diligence of the said defendant, which he should have employed therein, and that said partnership suffered greatly in its business and custom by reason of the wrongful acts of the said defendant as aforesaid. VII. And plaintiff charges that during the continuance of the partner- ship between him and the said defendant, it was the duty of the said defend- ant to devote all his energies for the promotion of the said partnership ex- clusively, and to account for all moneys received by him in and through the legitimate business of the same. Yet, notwithstanding the said defend- ant has realized large profits as his share of the payments made by the said , for the under the aforesaid contract, the said defendant, although often requested so to do, has refused and still refuses to account to plaintiff for the same, except as to the sum of one thousand dollars men- tioned in paragraph five of this biU. VIII. And plaintiff further shows that on the day of , 18 , plaintiff and the said defendant entered into an agreement in writing, under seal (a copy of which is hereto attached, marked "Exhibit B "), to refer all matters and things unsettled between them in reference to the busi- ness affairs of the said firm of C. & Co. , or John C. & Co. , to three arbitra- tors, viz. : , the decision of the majority of said arbitrators to be final, if in writing and signed by a majority of them in four months from the date of the agreement. It further provided that each party should be heard, or make his deposition, that the arbitrators should see the agreement of partnership between plaintiff and the defendant, and all books and papers kept in reference to the business transactions of said parties, and should de- termine at what time the dissolution of the said partnership took place. By virtue of a supplemental agreement between plaintiff and the said de- fendant, the time for making an award by the said arbitrators was extended "until" the day of , A. D. 18 . IX. That upon the day of , the said arbitrators signed an award in writing not under seal (a copy of which is hereto attached, marked " Exhibit C "), which found that there was due to said defendant from plaintiff the sum of dollars and certain stone of the late firm of C. & Co., then remaining in , of the value of dollars ; and further, that the firm of C. & Co., or John C. & Co., was dissolved on the day of X. Plaintiff charges that by the terms of the agreement between him- self and the said defendant, the said arbitrators were allowed " until " the day of , for the purpose of making their award, and that said award having been signed after the expiration of said period of time, viz. : on the day of , 18 , was not signed within the time expressly specified by the terms of the said agreement. XI. That said agreement further expressly required the said arbitrators 200 BILL FOK ACCOUNT. to see the said agreement of partnership between plaintifiE and said defend- ant, and all books and papers kept in reference to their said business trans- actions, but that said agreement of partnership between plaintiff and said defendant, and said books and papers referring to the said business trans- actions of said firm, were not produced before or seen by the said arbitra- tors, who utterly refused and neglected to have the same brought before them and duly considered. That the neglect and refusal of said arbitrators in this behalf to examine and consider plaintiff's testimony was such gross misconduct as to justify this honorable court in vacating said award. XII. Plaintiff further charges that the said defendant and the said arbitrators unlawfully combined to exclude and prevent the production before said arbitrators of the said agreement of partnership between plaint- iff and the said defendant, and the books and papers relating to said part- nership. That the production and examination of said agreement ("Ex- hibit A"), and the said books and papers relating thereto, would have shown clearly that up to the month of plaintiff and the said defendant were still in partnership, and that there was then due to plaintiff a large share of the profits arising under and by virtue of the contract aforesaid, between C, S. & Co. and . By reason of the unlaw- ful combination aforesaid between the said arbitrators and the defend- ant, plaintiff was prevented from showing before the said arbitrators the amount which was due to him from the said defendant, and the said arbi- trators made their award as aforesaid against plaintiff in the absence of the proof which they were specifically required to see by virtue of the terms of the agreement under which they were acting, and which plaintiff was en- titled to have produced before them. XIII. That under the said agreement ("Exhibit B"), the submission to the arbitration is a general one " of aU matters and things unsettled in reference to the business affairs of the said firm," existing between j^our plaintiff and the defendant, yet the particular claim of plaintiff against the defendant arising under said contract of C, S. & Co. with has ne^er been heard by the arbitrators, who have made their award with- out considering tliat demand, and plaintiff cannot, therefore, in equity, be barred by said award from enforcing against the defendant the claim so omitted from consideration. XIV. That the said defendant is indebted to the said plaintiff and there is a balance due said plaintiff by said defendant. Wherefore plaintiff needs equitable relief and prays : 1. That the said defendant, J. C, be enjoined, specially until hearing and perpetually thereafter, from bringing or commencing any action at law or in equity upon the said award made upon the said day of , A. D. , by the said 2. That the said award be decreed null and void and of no effect, and that the said defendant be decreed to deliver up the same for cancellation. 3. Tliat the said defendant be decreed to account to plaintiff for all moneys received by him as a member of the firm of C, S. & Co., and that the affairs of the partnership of plaintiff and said defendant be wound up and the accounts taken of all and every the said partnership dealings and BILL FOR ACCOUNT. 201 ■transactions and of the moneys received by the plaintiff and the said defend- ant, respectively, in regard thereto. 4. Tliat the said defendant may be decreed to pay to plaintiff vphat, if anytliing, shall upon the stating of said account, be found to be due liim by the said defendant. 5. Further relief. Solicitor for Plaintiff. (Add affidavit.) Attach " Exhibit A " (Articles of Copartnership);," Exhibit B " (Agree- ment to Refer); " Exhibit C " (The Award). § 5408. If Liability to Account Denied— Interlocutory Decree. Where the liabiHty to account is denied, there must be interlocutory decree, finding such liabihty, prior to any hearing on the merits of the case. Collyer v. Collyer, 38 Pa. St., 257 (1861); Christy's Appeal, 92 Pa. St., 157 (1879); Dampf's Appeal, 106 Pa. St., 72 (1884). The defendant being found hable to account, he should be allowed an opportunity to state the same before the final decree is entered. Beeder v. Trullinger, 151 Pa. St., ■287 (1892). ^ 5409. Practice on Accounting. The Amendments of January 15, 1894, to the Equity Kules of the Supreme Court of Pennsylvania discontinued the office of examiner, except in certain cases, and provided that all testimony in cases in equity should be taken in the same manner as is practiced in courts of law. The Amend- ments contain the following provision as to cases involving accounts : In cases involving complicated accounts, or questions requiring the aid of experts, if the parties do not refer, the court may call in the aid of an accountant or other expert, as an assessor. The charges to be allowed for such services shall not exceed the rate per diem commonly paid by business men for similiar services, and shall be taxed as costs in the case, or paid as the court may direct. It may here be noted that the former Equity Eule XII., § 66, referring to accounting before a master, would seem to be abrogated by the Equity Eules, adopted by the Supreme Court, January 15, 1894, abolishing the office of master. 202 BILL FOE ACCOUNT. §6410. Unliquidated Assets. Where unliquidated assets are charged against the- accounting party, he cannot be held liable for more than_ was actually realized from such items. Huston v. Clark, 3 Dist. Eep., 2 (1893). In a bill in equity for an account, where the plaintiff claimed the ownership in certain money given by his' wife, to the defendant, it was held, That evidence that the wife had no property at the time of her marriage and had inher- ited none since was insufficent to establish the plaintiff's- title. 8aake v. Dorner, 3 Dist. Eep., lYO (1894). Where an account was taken as to the value of a partner- ship interest bought by the plaintiffs in the bill, at a sheriff's- sale, an inventory of the stock taken shortly before the sale, proved solely by the evidence of a witness who found it in the partnership safe two years subsequent to the sale, i». inadmissible. Crawford v. Shriver, 139 Pa. St., 239 (1891).. § 5411. Where BiU Filed Fending Suit at Law. If the plaintiff file a bill for the same cause of action^ for which an action at law is pending, the defendant, be- fore answering, may plead such pending action in abate- ment of the bill and force the plaintiff to his election. If he choose to proceed with the bill he must discontinue the suit at law. Penna. Co. v. Bank, 33 W. N., 525 (1893). §5412. Appeal: None Lies until Final Decree —Defendant who Admits Liability cannot Appeal from Inter- pleader to Establish Ownership. A decree upon a bill for the settlement of partnership accounts, which adjudicates the fact of partnership and orders the defendant to render an account before a master, is interlocutory, and no appeal lies from it until a final. decree upon the accounting. Keller v. Swartz, 137 Pa St , 65 (1890). Where the defendant in a bill for an account as to a BILL FOR ACCOUNT. 203- partnership interest admits possession and liability to ac- count to the real owner of the interest, such defendant cannot appeal from a decree confirming the master's report. in an interpleader to determine the question of ownership.. Crawford v. Shriver, 139 Pa. St., 239(1891). CHAPTER IX. BILL WHERE THE JURISDICTION ARISES FROM ACCIDENT, MISTAZE OR FRAUD, AND HEREIN OF RESCISSION, CANCELLATION, RE-EXECUTION, REFORMATION AND RE- DELIVERY. Accident is one of the established grounds of equitable relief. ^ 5413. Definition. Mr. Jeremy defines accident thus : "An occurrence in relation to a contract which was not anticipated by the parties when it was entered into and which gives an undue advantage to one of them over the other in a court of law." This definition has been criticisfed : 1. Because accidents may occur in relation to other things besides contracts. 2. Because the definition does not exclude cases of unanti- cipated occurrences resulting from the negligence or miscon- duct of the plaintiff. Story defines accident thus : " Not merely inevitable casualty or the act of Providence, or what is technically called vis major ob irresistible force, but such unforeseen events, misfortunes, losses, acts or omissions as are not the result of any negligence or misconduct in the party." Story's Equity, § 78. Spence seems to have regarded all attempts to define accident as unsuccessful. Mr. Bispham, in his celebrated Treatise on Equity, adopts the following definition : " An unforeseen and in- jurious occurrence not attributable to mistake, neglect or misconduct." 204 ACCIDENT, MISTAKE OR FRAUD. 205' From these definitions it would seem to follow that in the following cases § 5414. Equity Does Wot Relieve from Accident. 1. Negligence. When the result is due to the gross negligence or misconduct of the plaintiff. As the destruc- tion of an obligation by the plaintiff. 2. When a court of law could grant full relief. Blackstone says (3 Comm., 431): "Many accidents are supplied in a court of law ; as loss of deeds, mistakes in receipts and accounts, wrong payments, deaths which make it impossible to perform a condition literally, and a multitude of other contingencies. And many cannot be redressed even in a court of equity ; as if by accident a recovery is ill suffered, a devise ill executed, a contingent remainder destroyed, or a power of leasing omitted in a family setlement." Lord Hardwicke is credited with this remark : " The loss of a deed is not always a ground to come into a court of equity for relief ; for, if there was no more in the case, although he (the plaintiff) is entitled to have a discovery of that, whether lost or not, courts of law admit evidence of the loss of deed, proving the existence of it, and the con- tents, just as a court of equity does." Whitfield v. Fausset, 1 Ves. Sr. Eep., 393 (1749). It will be noted that the restriction upon equity juris- diction is the fact that the court of law could formerly have granted full relief. There are many cases in which the law can now give full relief, but in which they did not formerly possess that power. The grant of jurisdiction ta a law court does not strip equity of its authority to re- lieve. The jurisdiction may be concurrent. Lost bonds. ' This remark applies to lost bonds. Both courts have jurisdiction. Equity will grant discovery without relief, or relief and discovery. If discovery alone he sought, no affidavit is required. When relief is prayed the bill must be sworn to. The bill must offer indemnity. :206 ACCIDENT, MISTAKE OE FEAUD. Cases of lost notes and lost deeds are different from lost bonds. Lord Hardwicke, in Walmsley v. Child, 1 Ves. Sr.-Eep., 344 (1749), thus illustrates these mat- ters : ' ' There are cases upon which you may come into equity on a loss, though remedy be at law ; and one is clear upon a bill for discovery. But if you come into equity, not only for discovery, but to have relief on the foundation of loss, that changes the jurisdiction. And there are but three cases in which you are entitled to do that, in every one of which you are obliged to annex an affidavit to the biU, to prove the loss. If the deed or instrument upon which the de- mand arises is lost, and you only come for discovery, you are entitled thereto, without affidavit. But if relief is prayed beyond that discovery, to have payment of the debt, affidavit of the loss must be annexed ; for that changes the jurisdiction. If the deed lost concerned the title of lands, and possession prayed to be established, such affidavit must be annexed. Another case is of a personal demand, where loss of a bond, a bill in equity on that loss, to be paid the demand : there a bill for discovery will not be sufficient, but it must be to be paid the money thereon ; but an affida- vit must be annexed. The reason of the difference between a bond and a note is that in an action at law, a profert in curiam of the bond must itself be made, otherwise oyer can- not be demanded by the defendant ; and if oyer is, not given, the plaintiff cannot proceed. But that is not necessary in the case of notes ; no oyer is demanded upon them, the prov- ing contents being sufficient, and nothing standing in the plaintiff's way. Another case, in which you may come into this court on a loss, is to pray satisfaction and payment of it upon terms of given security. In an action at law, the plaintiff might offer, but the defendant could not be <,'ompelled to take ; but in equity that would be considera- tion whether they were reasonable. That was the case of Teresy v. Oorey, as Lord Nottingham has taken the name in an authentic record I have of it ; which was Easter, ^8 •C, 2, where a bill of exchange was drawn on the defendant, and indorsed, in the third place, to the plaintiff, by whom ACCIDENT, MISTAKE OR PKAXTO. 207 "the bill was either lost or mislaid, as appeared by the affidavit annexed. And the bill prayed, that the defendant might be decreed to pay the plaintiff the money, as last indorsee, according to the acceptance ; the plaintiff first giving security to save the defendant harmless against all former assignments ; which was so decreed, but without damages and costs. In a book called Finch's Reports, 301, the decree is somewhat larger, and the acceptance of the defendant was after the third indorsement, and it is in that book, though not so in the manuscript report. And, in- deed, I do take it to be as in the boolc ; and then there is no doubt of the plaintiff's right ; but if that be material, it shall be inquired into. In that case, if the plaintiff could at law prove the contents of his bill, and the indorse- ment, and the loss of it, he might have brought his action at law, upon that bill, without coming into this court. But he was apprehensive the course of trade might stand in his way at law, and therefore came into this court upon terms, submitting it to the judgment of the court, whether they were not reasonable. " 3. Equity will not relieve for accident where there is a positive contract, and some unforeseen event happens which prevents fulfillment. This, although by no default of the party, will not entitle him to relief. The familiar illustra- tion is the case of tire, which does not exonerate a lessee from his agreement to repair or to pay rent, although the •destruction may be by lightning, public enemies, etc. The reason for this is that the tenant can always insist upon the insertion in the lease of the fire clause as it is commonly called, a provision which discharges him from the cove- nant to repair, etc., and sometimes from the payment of rent in case of fire. 4. The same principle bars the plaintiff where the agree- ment provides for something to be done during a certain life, as to sell at a price fixed during the life of the parties —or a sale at a certain sum and for an annuity, and the vendor dies before the price is fixed or any annuity is paid. 5. Equity will not grant relief on the ground of accident 208 ACCIDENT, MISTAKE OR FKAITD. to any person who has not a clear and a vested right — as- where one is named as legatee in an unexecuted will and the signing is defeated by accident ; where a power of ap- pointment is not exercised ; where a will is defectively exe- cuted, etc. Nor in any case where the defendant has an equal or higher standing, as heirs-at-law, purchasers for value, etc. § 5415. When Equity Believes from Accident. 1. i^rom penaZtos of bonds and mortgages. This was a very salutary exercise of jurisdiction. The condition money of a bond and the sum secured by a mortgage are now alone recoverable. The forfeiture of the estate has disappeared. Equity relieves from forfeitures where failure is the result of accident or sickness. Compensation is the rule. Where the stipulation is to pay money, no larger sum can be recov- ered either as penalty or as liquidated damages. Where the injury cannot be reduced to certainty by arithmetic, the parties may contract for liquidated damages, and as a gen- eral rule equity will not relieve. A clause that if part be not paid on a day named the whole shall fall due is not a penalty. Thompson v. Hudson, L. E., 4 H. L. Cas., 27 (1869). 2. Where loss ivould result from acts beyond the party^s control or acts performed by Mm in good faith. As where without any negligence or misconduct an executor pays a legacy, or executors and administrators pay debts, and the assets prove insufficient to discharge the remaining claims, or where distribution is honestly made of moneys received yet subsequently recovered back from the executor by re- versal of judgment. , An annuitant secured by stock can have the deficiency occasioned by depreciation of the stock made good in equity. 3. Equity relieves from a defective execution of a23rivate power occasioned by accident or mistake, in favor of pur- chasers, creditors, a wife, a child and a charity ; but not in favor of a donee, a husband, grandchildren, distant relatives, strangers, etc. The treatment of this subject would require ACCIDENT, MISTAKE OK PBAUD. 209 a separate volume and would be foreign to a work on Prac- tice. It may suffice to add that the defects remedied are those not of the substance of the power. A striking illus- tration of this is where the instrument requires the power to be executed by deed. Here execution by will may be aided, because this does not touch the essence. But e converso, if the instrument required a will and the appointment was made by irrevocable deed, equity will not relieve. Here it will be seen that the intent of the power was defied. If the power had been exercised by will, it would have been revo- cable before death. This was what was intended to be con- ferred, a revocable power. But if an irrevocable deed be executed and it stand, there is an end of the settler's scheme. This subject will be found in all the treatises, and there is a full summary of the cases in note to Toilet v. Toilet, 2 Peere WiUiams' Eep., 489 (1Y28) ; White & Tudor's Leading Cases in Equity, Vol. I., Part I., *269. 4. The failure of trusts by accident is often remedied. Thus a devise to A. in trust to distribute on his death to his children and relations as he may see fit, and the trustee dies without executing the trust ; here a court of equity will make a proper distribution. It will be observed that the case stated is of a trust, not a mere naked power. In Harding v. Glyn, 1 Atkyn's Eep., 469 (1739), a testa- tor gave to his wife all his estate, leases and interest in a certain house, and the goods and furniture therein contained, as well as his plate and jewels, but desired her, at or before her death, to give the subjects of the bequest to such of the testator's relatives as the wife might think most deserving. She died leaving a will by which she bequeathed to a certain person the estate and interest in said house, and the resi- due of her property to the defendant and others. She failed to give at or before her death her husband's jewels or his goods in said house to his relations. The Master of the Rolls held, That the wife had but a beneficial interest in the property bequeathed to her, and that the power of naming the appointees, upon failure of the wife to appoint, devolved upon the court. The property was awarded to the next of kin of the husband 14 210 ACCIDENT, MISTAKE OR FKAUD. 5. The omission by accident to indorse negotiable paper according to intention at the time is ground for relief. The party, or after his death his personal representatives, or after failure his assignees, may be compelled to complete the equitable assignment. 6. Equity relieves where a party has been defeated in a suit at law by accident in nowise chargeable to him. 7. Equity will not enforce a forfeiture. Funk v. Halde- man, 53 Pa. St., 229 (1866) ; Oil Creek B. B. v. Atlantic & G. W. B. B., 57 Pa. St., 65(1868). § 5416. Definition of Mistake. Mistake is thus defined : " That result of ignorance of law or fact which has misled a person to commit that which, if he had not been in error, he would not have done." English and many American judges have held that mis- takes of law are no ground for relief. The civilians seem to have differed : Pothier and Heineccius on the one side, Vin- nius and D'Auguesseau on the other. Even the text of the Eoman law has been the subject of discussion. Some have contended that there is a distinction — that though a party may not be bound to pay, yet if he has paid he cannot re- cover back. This in turn has been denied. Repayment is termed " repetition" in the civil law. The student will find an excellent collection of authori- ties on both sides in Haven v. Foster, 9 Pickering, 112 (1829). In that case a distinction was taken between ignorance of the law of one's own state and ignorance of the law of an- other state. The latter was treated as ignorance of a fact. Morton, J., in the case cited, states the whole question very lucidly. He says : " Whether money paid through ignorance of the law can be recovered back is a question much vexed and in- volved in no inconsiderable perplexity. We do not court the investigation of it, and before attempting its solution it may be well to ascertain whether it is necessary to the decision of the case before us. ACCIDBKT, MISTAKE OR FRAUD. 211 "That a mistake in fact is a ground of repetition is too clear and too well settled to require argument or authority in its support. "The misapprehension or ignorance of the parties to this suit related to a statute of the State of New York. Is this in the present question to he considered fact or law? " The existence of any foreign law must be proved by ■evidence showing what it is. And there is no legal pre- -sumption that the law of a foreign state is the same as it is here. 2 Stark. Ev. (Metcalf's Ed.), 668 ; Male v. Roberts, 3 Esp. Rep., 163. If a foreign law is unwritten, it may be 3)roved by parol evidence ; but if written, it must be proved by documentary evidence. Kenny v. Clarkson, 1 Johns. E., 385 ; Frith Y. Sprague, 14 Mass. E., 455 ; Consequa v. Willings, 1 Peter's Circ. C. E., 229. The laws of other States in the Union are in these respects foreign laws. Raynham v. Canton, 3 Pick., 293. " The courts of this State are not presumed to know the laws of other States or foreign nations, nor can they take judicial cognizance of them, till they are legally proved "before them. " But when established by legal proof, they are to be construed by the same rules and to have the same effect upon all subjects coming within their operation as the laws of this State. ' ' That the lex loci rei sitae, must govern the descent of real estate is a principle of our law, with which every one is presumed to be acquainted. But what the lex loci is, "the court can only learn from proof adduced before them. The parties knew, in fact, that the intestate died seized of estate situated in the State of New York. They must be presumed to know that the distribution of that estate must be governed by the laws of New York. But are they bound, on their peril, to know what the provisions of these laws are ? If the judicial tribunals are not presumed to know, why should private citizens be ? If they are to be made known to the court by proof, like other facts, why should not ignorance of them by private individuals have 212 ACCIDENT, MISTAKE OR FEATJD. the same effect upon their acts as ignorance of other facts f Juris ignorantia est, cum jus nostrum ignoramus, and does not extend to foreign laws or the statutes of other States. "We are of opinion, that in relation to the question now before us, the statute of New York is to be considered as a fact, the ignorance of which may be ground of repeti- tion. And whether ignorantia legis furnishes a similar ground of repetition, either by the civil law, the law of England, or the law of this Commonwealth, it is not nec- essary for us to determine. The examination, comparison and reconciliation of all the conflicting dicta and author- ities on this much discussed question is a labor which we have neither leisure nor inclination to undertake. " In the view which we have taken of this, case, it ap- pears that the defendant received a part of the considera- tion for which the plaintiff's estate was sold ; that it was received by mistake ; and that this mistake was in a matter of fact. He therefore has in his hands money which, ex cequo et bono, he is bound to repay, and there is no principle of law which interposes to prevent the recovery of it out of his hands." f 5417. No Relief Because of Mistake of Law as to Security. In Hunt V. Bousmanier's Administrators, 8 Wheaton, 174 (1823), a party lending money took as his security a. letter of attorney authorizing the sale of a ship. He in- tended to take, and doubtless thought he was taking, what was equivalent to a mortgage upon the ship. The borrower died. The creditor filed his bill for reformation and for priority of lien. Here was a mistake in law. But having selected his form of security, the court could not grant the plaintiff relief, because the paper was not as good a security as he might have taken. There was no mistake in the document, it contained exactly what had been agreed upon. To the same effect are Meckley's Estate, 20 Pa. St., 481 (1853) ; McAninch v. Laughlin, 13 Pa. St., 376 (1850). ACCIDEIs'T, MISTAKE OK FRAUD. 213 •§ 5418. Ignorance of Latv. Ignorance of the law does not affect contracts nor excuse a party from lawful consequences of special acts. Rankin V. Mortimere, T Watts, 372 (1838) ; Good v. Herr, 7 W. & S., 253 (18M). § 5419. When Equity will Believe as to a Mistake in Law. Equity will relieve against a mistake in law where there is actual or legal fraud by one who seeks to obtain the execution of an agreement to benefit himself or those for whom he acts, so if the party has acted upon a want of proper knowledge which he could not obtain, though vigilant in his search, or where unconscionable advantage is taken of the circumstances whereby the execution of the instru- ment is coerced, and where by undue pressure one does that w^hich he otherwise would not have done. Whelen's Ap- peal, TO Pa. St., 410 (1872). § 5420. Mistake of Fact induced by Mistake of Law may be relieved against in equity. Gross v. Leber, 47 Pa. St., 520 (1864) ; Russell's Appeal, 75 Pa. St., 270 (1874). § 5421. Ignorance of Fact, Ground of Relief. Generally an act done under mistake or ignorance of a material fact can be relieved against. Allen v. Hammond, 11 Peters, 63 (1837) ; Ins. Co. v. Canal Co., Brightly's Rep., 48 (1843) ; JenTcs v. Fritz, 7 W. & S., 201 (1844) ; Painter's Estate, 42 Pa. St., 156 (1862) ; 2 Grant, 157 (1858) ; Nevin's JEstate, 7 Phila., 506 (1870). In Bishop v. Reed, 3 W. & S., 264 (1842), Mr. Justice Huston said : "In many cases relief is only to be had in chancery. It investigates and relieves against * * * mistake under which one party labored, and against con- tracts which could never have been made, unless both parties had been greatly mistaken ; or, in other words, .against contracts honestly made on a mistake of one or 214 ACCIDENT, MISTAKE OR FKAUD. both, and which, on discovering the whole facts, it is against common justice to attempt to enforce." § 5422. Mutual Mistake. EeUef will be granted against a contract entered into under a mutual mistake of facts which were the founda- tion of the contract, were of its essence, and constituted the efficient cause of entering into it. Biegel v. American Life Insurance Co., 27 W. N., 393 (1891) ; 140 Pa. St., 193 (1891) ; overruling the decision of the lower court reported in 46 Leg. Int., 516 (1889). See also Ibid., 163 Pa. St., 134 (1893), and Blygh v. Sansom, 27 W. N., 390 (1890). But where the parties treat upon the basis that the facts are doubtful, and are so considered, the contract is binding and will not be relieved against. Perkins v. Gay, 3 S. & R., 327 (1817). Where a contract is based on a supposed state of facts which had no existence, equity will relieve on the ground of mistake. Horbach v. Gh-ay, 8 Watts, 492 (1839). Accidental omission from a writing will be relieved against as a mistake. Gump's Appeal, 65 Pa. St., 476 (1870). Where both parties entered into a lease upon the under- standing that there was a well of oil on the tract leased, and it afterwards appeared that the well was not included in the lease, equity will relieve against the mistake. Mays V. Dwight, 82 Pa. St., 462 (1876). § 5423. Executed Contract. In cases of fraud or mistake, equity will relieve against- an executed contract. Brady v. Loan Assn., 14 W. N., 419 (1884). § 5424. Where there is no Title. Where a party, through mutual mistake, conveys to another a tract of land to which he has no title, and re- ACCIDENT, MISTAKE OR FRAUD. 215 ceives in payment therefor the bond of the vendee, the mistake will be relieved against. Goettel v. Sage, 117 Pa. St., 298 (1887). § 5425. Wliere Mortgage Satisfied by Mistake. Where a building association mortgage was satisfied upon the statement of the secretary that the stock of the borrower had matured, when as a matter of fact, through the default of the secretary, the stock was less than one- half paid, the entry of satisfaction was stricken off on the ground of mistake. Callahan's Appeal, 23 W. N., 233 (1889). § 5426. Mistake must be Mutual, Negligence not Enough. The mistake to be relieved against must be one that is mutual, material and not induced by negligence. Signing an instrument upon the supposition as to its correctness, without knowledge or inquiry, comes danger- ously near negligence. BanJc v. Telephone Co., 150 Pa. St., 36 (1892). § 5427. Correcting Mistakes in Wills— No Relief Against a Statute. Some of the English decisions on this subject have been severely criticised. Story's Equity, § 180. Where the document has a legal existence, indulgence should be shown to ignorance, technical informality or grammatical error. But chancery never relieves against a statute, and where the paper has not been executed there is no help. A strong case is put by Sir H. Jenner Fust, In the Goods of , 14 Jurist, 402 (1850): "Two ladies live together, and they determine to make what I may call mutual wills. The wills are the same, mutatis mutandis ; they were drawn up and executed, that is, if executed they are at one and the same time, but unfortunately each signed the other's will. After the death of one of them, 216 ACCIDENT, MISTAKE OR FRAUD. the solicitor alters them, so as to make the will of one appear as that of the other, and I need scarcely say that he has erred in so doing. But what is to be done with this paper ? It is not the will of the deceased, and it purports to give all her property to herself — a manifest absurdity. I must reject the motion for probate." This found a repetition in Philadelphia. George A. Alter and his wife Catharine directed wills to be prepared, each devising to the other. Two papers were signed. After the husband's death it was discovered that each had signed the wrong paper. The document bearing the hus- band's signature devised the property to himself. It was of course inoperative. He died intestate. The wife secui'ed the passage of a special act clothing the Eegister with all the powers of a court of chancery, but the court refused to correct the mistake. Judge Ludlow said {In re Alter, 7 Phil., 529, 1870) : "' What proposition can be clearer than that at the moment the breath went out of the body of G-eorge A. Alter, his estate, real and personal, vested, in full property, in his heir-at-law and distributees under the intestate law of Pennsylvania ? It is true, he may have intended to exe- cute a will, but he did not in fact so do ; he signed a paper, but not his will ; and the case is not harder than that of a person who, in disregard of our statute of wills, signs his name at the top in place of the end thereof, or who adds a codicil and does not execute it, or who dies while his professional adviser is preparing his will." This was affirmed in Alter's Appeal, 67 Pa. St., 341 (1871), the Supreme Court holding that the husband had executed no will, and that there was nothing to reform. § 5428. Fraud. It may be observed generally that equity will not or- dinarily exercise jurisdiction in cases of fraud if there be a full and adequate remedy at law, but the weight of authority is in favor of a concurrent jurisdiction, and this is especially true where discovery is essential. ACCIDENT, MISTAKE OE FRAUD. 217 Transactions tainted with fraud are only voidable at the •option of the injured party, and he must use all diligence in asserting his rights. The division of fraud made by Lord Hardwicke in Chesterfield v. Janssen, White & Tudor's Lead. Cases in Equity, Vol. I., Part II., *624, will be found useful : 1. Fraud arising from the facts and circumstances of imposition. (Representations which deserve the name of fraudulent must be false in themselves, not known to be true by the party making them, relied upon by the other party, furnishing a reasonable inducement to an action and causing injury and damage to the plaintiff. A false representation of a matter of law is no reason for rescinding a contract, since every one is supposed to know the law. Where there is a mutual mistake in regard to the effect of a legal instrument, or where the relation of the , parties is such that the injured party relies upon the other, "the rule is the contrary.) 2. Fraud arising from the intrinsic nature of the bargain itself (as in cases of inadequacy, usury, gam- Tjling, etc.). 3. Fraud presumed from the circumstances and con- ■dition of the parties contracting (as in cases of mental dis- ability or undue influence). 4. Fraud affecting third persons not parties to the agree- ment (as in cases of fraud upon creditors, purchasers, marital rights, powers). The right to impeach a transaction for fraud may be lost by confirmation, release, acquiescence, laches. Again, the assertion of such right has no place as against a bona fide purchaser for value without notice. .5. Catching bargains with heirs, reversioners or ex- pectants. The bill must contain a distinct averment of fraud ; it must be certain as to persons, dates and events, and specific, direct, positive and precise as to acts and facts. Where the gravamen of the complaint is fraud it is not sufficient to set forth facts from which it may be inferred. Where the charges are necessarily general, because the 218 ACCIDENT, MISTAKE OR FRAUD. information is in the possession of the defendant, who re- fuses to furnish it, this fact should be stated in the bill. § 5429. Cancellation and Bescission. Mistake may in a proper case be a ground for rescission or cancellation. So fraud is often alleged as a reason for invoking equitable relief. In such cases the contract is re- garded as existing until the party demands a rescission ani promptly invokes the aid of the court. Oakes v. Turquand, L. R, 2 H. L. Cas., 325 (186T). A conveyance may be ordered or a decree entered for a surrender and cancellation. The latter remedy is- desirable in all cases of negotiable instruments and of clouds upon title. This falls under the jurisdiction quia timet (because he fears). According to Lord Coke, there were six writs of law that might be maintained quia timet. § 5430. Tender — Bestoration to Statu Quo. The important principle in all cases of rescission and. cancellation is that the parties must, if possible, be restored to their respective positions, and to this end it is necessary to tender the defendant any benefit, profit or advantage^ which the plaintiff has derived by reason of his contract. The object of the tender is the restoration of the statu quo. So too, at the time of tender, demand must be mad& for the restoration of that of which the plaintiff was de- prived by fraud, mistake or turpitude of consideration. Where the mistake has not been mutual the plaintiff can only ask rescission. § 5431. When Eeseission will be Decreed. The rescission of an executed contract will be decreed on proof of fraud or mistake. But inadequacy, improvidence, surprise, hardship, mis- representation as to value, etc., are insufficient causes. Davidson v. Little, 22 Pa. St., 245 (1853); Graham v. Pancoast, 30 Pa. St., 89 (1858) ; Nace v. Bayer, Id., 99 ACCIDENT, MISTAKE OR FRAUD. 21&' (1858) ; Bockafelloiv v. Baker, 41 Pa. St., 319 (1861) \. Aiman v. Stout, 42 Pa. St., 114(1862) ; Cumming's Appeal, 67 Pa. St., 404 (1871) ; Kelly's Appeal, 108 Pa. St., 2^ (1884) ; Jones' Appeal, 127 Pa. St., 102 (1889) ; Bughmanx. Bank, 33 W. K, 557 (1898). § 5432. Promptness Necessary — Tender. In order to rescind, it is necessary — (a) To act promptly in repudiating a contract. (b) To return or tender what has been received under the contract, so as to restore the parties to their relative positions. § 5433. Lien Creditors must be Made Parties. In proceedings to cancel a deed, lien creditors of the grantee must be made parties. Rittispaugh v. Lewis, 103 Pa. St., 1 (1883) ; Schofieldv. Shiffer, 156 Pa. St., 66 (1893). § 5434. A Clear Case is RecLiiired to Support a Decree for Cancellation. Brainard v. Holsaple, 4 Greene (Iowa), 485 (1864) ; Eckman v. Eckman, 55 Pa. St., 276 (1867) ; Edmonds' Ap- peal, 59 Pa. St., 222(1868) ; Atlantic Delaine Co. v. James, 4 Otto (U. S.), 207 (1876). g 5435. When Cancellation Ordered. Where a case is made out for the rescission of a con- tract, the court will in general order it to be delivered up and cancelled. Wilson v. Getty, 57 Pa. St., 266 (1868) ; Keemle v. Conrad, 35 Leg. Int., 262 (1878). In some cases equity will decree that the old contract be cancelled and a new one be executed by a master in accord- ance with the actual intention of the complainant ; Gins- chio V. Ley, 1 Phila., 383 (1852) ; and will order a deed to be cancelled and a re-conveyance made. Logue's Appeal,, 104 Pa. St., 136 (1883). .^20 AOCTDBNT, MISTAKE OK FEATJD. § 5436. Tfo Rescission in Equity where Adequate Remedy at Law. A court of equity will not rescind an executed contract where the parties have a full and complete remedy at law, particularly where the interests of a third person are in- volved. Travis' Appeal, 8 Atl. Eep., 601 (1887). § 5437. Full Information Bars Cancellation. Where two persons fully informed as to the facts and to escape tedious litigation enter into an amicable agreement. a bill for the cancellation of the agreement will not be en- tertained. Gormly v. Oormly, 130 Pa. St., 469 (1889). § 5438. Damages. If, after the bill has been filed, the defendant convey, assign, sell or encumber the subject-matter of the suit, the weight of authority is in favor of a decree for damages in substitution of the relief prayed for, and which may be granted under the prayer for other and further relief. The courts of equity thus retain the bill to give the plaintiff full compensation in damages without compelling him to go before a jury to assess his damages in an action at law. Bispham on Equity, § 395 ; Beeder v. Trullinger, 151 Pa. St., 287 (1892) ; Blood v. Loan Co., 164 Pa. St., 95 (1894). "Where previous to the suit there has been such a sale or conveyance, with notice to the purchaser of threatened or impending htigation, the purchaser should be made a party defendant, and such sale or conveyance and the fact of notice should be stated in the bill. If such sale or convey- ance be to a hona fide purchaser, without notice and for value, the remedy is by an action at law against the party thus disposing of the subject-matter of the suit. § 5439. Re-execution. Where a document has been lost or accidentally de- stroyed, re-execution may be decreed. ACCIDENT, MISTAKE OR PEAUD. 221 A deed which is a valuable link in a title may be lost or destroyed, and the jurisdiction of a court of equity to decree a re-execution of the deed is unquestionable. Cum- mings v. Coe, 10 Cal., 630 (1858). In invoking this remedy the plaintiff must show he has not been guilty of carelessness or negligence. § 5440. When Re-delivery Ordered. Where a case is not made out justifying a decree for rescission and cancellation, and yet sufficient is proved showing an insuperable obstacle to a decree of specific per- formance, and deeds and muniments of title are in the pos- session of defendants, the court will order their re-delivery. Graham v Pancoast, 30 Pa. St., 89 (1858). § 5441. Reformation. In many cases of mistake the plaintiff may wish a re- scission. But instances may arise in which he simply desires to have the instrument corrected so as to express the truth. Thus if a settlement be made in the very words of the articles, yet if the legal effect of those words is not according to the intention, the settlement will be re-formed. See cases cited, White and Tudor's Leading Cases in Equity, Vol. I., p. 1 ; notes to Lord Glenorchy v. Bosville, Cases Temp. Talbot, 3 (1Y33). Eeformation is an important remedy. Where an instrument has not been drawn to express the true intent of the parties, but the plaintiff does not wish to set it aside, since he may thus be deprived of the advantages of his contract, reformation will be granted. § 5442. Reformation according to Intention. Equity will so reform a written contract in cases of fraud or mistake that it shall conform to the intention of the parties. Hamilton v. Asslin, 11 S. & E., 448 (1826) ; Ootver V. Sterner, 2 Wharton, T5 (1837) ; Chalfant v. 222 ACCIDENT, MISTAKE OK PRAXTD, Williams, 35 Pa. St., 212 (1860) ; Huss v. Morris, 63 Pa. ,St., 36Y (1869) ; Gump's Appeal, 65 Pa. St., 478 (18Y0). § 5443. What must be Shown to Reform. But the provisions of a written instrument will not be disturbed for the purpose of reforming it unless it be shown — (a) That the instrument does not express the true in- tent of the parties. (6) That the failure of the instrument to express such intent arose from oversight or mistake in drafting it. (c) That such mistake was mutual. It must appear that both parties have performed that which neither in- tended to do. Where the mistake was not mutual but one party knew of the mistake of the other, it must be shown to be inequitable to permit him to benefit thereby. {d) The mistake must be clearly and satisfactorilj proved. The evidence must be precise and indubitable. Tet relief will not be denied because there is a conflict in the evidence. § 5444. Relief will only be Granted where the Mistake is Established by Clear Proof. Thus in WoollamY. Hearn, T Ves., 211 (1802), it was held, That though a defendant resisting specific perform- ance may go into parol evidence to show that by fraud the written agreement does not express the real terms, a plaintiff cannot do so for the purpose of obtaining a spe- cific performance with a variation. In that case the plaint- iff sought to change the rent named in the lease from £73, 10s. to £60, upon the allegation of mistake, but Sir William Grant dismissed the bill. See other cases cited, as note to Woollam v. Hearn, White & Tudor's Lead- ing Cas. in Equity (6th English Edition), Vol. II., p. 517. Where the evidence is clear that the bond was to have been several as well as joint, it may by reformed even as against a surety. Olmsted v. Olmsted, 38 Conn., 318 >(187l). See Moser v. Libenguth 2 Eawle, 428 (1830). ACCIDENT, mSTAKB OE FEAXTD. 223 g 5445. Mistake may be Shown by Parol. It is well settled that a mistake in preparing a deed or other writing may be shown by parol. Huss v. Morris, 63 Pa. St., 367 (1869). § 5446. Not Necessary to Prove Actual Fraudulent Intent. All the cases show that to pave the way for the recep- tion of oral declarations, it is not necessary to prove a party was actuated by a fraudulent intention at the time of the execution of the writing. His original object may have been perfectly honest and upright ; but if to procure an un- fair advantage to himself he subsequently deny the parol -qualification of the written contract, it is such a fraud as will under the rules operate to let in evidence of the real intent and final conclusion of the contractors. Bell, J., in Renshaiv v. Oans, 7 Pa. St., 119 (1817). ij 5447. Evidence must be Clear and Refer to the Time of Execution. The evidence must be clear, precise and indubitable, and jQust refer to what took place at the time of the execution of the instrument. Stine v. Sherk, 1 W. & S., 195 (ISl-l) ; Schettiger v. Hopple, 3 Grant, 54 (1856) ; EdmoniVs Ap- peal, 59 Pa. St., 220 (1868) ; Stewart's Appeal, 78 Pa. St., 88(1875); Geddes' Appeal, 80 Pa. St., 442 (1876); Cum- mins V. Hurlhutt, 92 Pa. St., 165 (1879); Bierer's Appeal, Id., 265 (1879) ; Campbell v. Patterson, 95 Pa. St., 447 (1880) ; Bowand v. Finney, 96 Pa. St., 192(1880) ; Stewarfs Appeal, 98 Pa. St., 377 (1881) ; Richard's Appeal, 100 Pa. .St., 52 (1882). The testimony must be credible and of such weight and directness as to make out the facts alleged beyond a reasonable doubt. Breneiser v. Davis, 141 Pa. St., 85 <1891) ; Beed v. Horn, 143 Pa. St., 337 (1891) ; Bank v. Hartman,14:7Fsi. St., 558 (1892). § 5448. When Equity will not Beform— Signing without Reading. Signing a paper upon a mere representation without 224 ACCIDENT, MISTAKE OR FEAUD. reading it is no cause for reforming an instrument on the ground of mistake. Drechman v. Lauer, 10 W. N., 53& (1881) ; Glenn v. Statler, 42 Iowa, 107 (1876). See Snyder V. Ives, Id., 157 (1875) ; Mayer v. New York, 63 N. Y., 455 (1875) ; See Bank v. Telephone Co., 150 Pa. St., 36 (1892). § 5449. Supine Negligence— Mistake as to Legal Effect. An instrument will not be reformed where the mistake was the result of supine negligence. Ins. Co. v. Swank, 102 Pa. St., 17 (1882). A contract will not be reformed on the ground of a mistake as to its legal operation. Ins. Co. v. Canal Co., Brightly's Eep.. 48 (1843) ; Zentmyer v. Mittower, 5 Pa. St., 403 (1847) ; Liggett v. SMra, 33 W. N., 553 (1894). § 5450. When an Absolute Conveyance is Made although a Mortgage was only Intended to be Given. Many cases have arisen, of which Beitenbaugh v. Lud- wick, 31 Pa. St., 131 (1858) ; Sweetzer's Appeal, 71 Pa. St., 264(1872) ; Hartley's Appeal, 103 Pa. St., 25(1883) ; Logue's Appeal, 104 Pa. St., 136 (1883) ; Pancake v. Cauffman, 114 Pa. St., 113 (1886) ; Reeder v. Trullinger, 151 Pa. St., 287 (1892) ; Lance's Appeal, 112 Pa. St., 456 (1886), were' types. The Act of June 8, 1881 (P. L., 84), disposes of many future contests. It provides : That no defeasance to any deed for real estate, regular and absolute' upon its face, made after the passage of this act, shall have the efiect of reducing it to a mortgage, unless the said defeasance is made at the time the deed is made, and is in writing, signed, sealed, acknowledged and delivered by the grantee in the deed, to the grantor, and is recorded in the ofHce for the recording of deeds and mortgages in the county wherein the said lands are situated, within sixty days from the execution thereof ; and such defeasances shall be recorded and indexed as mortgages by the recorder. Since the passage of this act a written defeasance signed by the grantee, but not acknowledged or recorded, will not ACCIDENT, MISTAKE OR FKATJD. 225 be admitted in an action of ejectment to convert a deed ab- solute on its face into a mortgage, though contemporaneous with the execution and delivery of the deed. SanJcey v. Hawley, 118 Pa. St., 30 (1888). In Molly v. Uhich, 133 Pa. St., 41 (1890), it was held, That the plaintiff could not recover damages for breach of a parol contract to convey land, it appearing that such contract was hvA a parol de- feasance of an absolute deed for such land from plaintiff to defendant. In IFuller v. Trust Co., 15Y Pa. St., 646 (1893), a bill which attempted to convert an absolute deed into a mortgage, through a parol defeasance, was dismissed. The act was held to be constitutional. §5451. Deed cannot be Reformed against Infants by Default, nor on Answer of Guardian Ad Litem. Equity will not reform a deed, as against infants, by a decree pro confesso, nor upon the merely formal anijVi^er of a guardian ad litem. Rogers v. Smith, 4 Pa. St., 93 (1846). § 5452. There m.ust be Preponderance of Proof. Equity will not reform a written instrument upon oath against oath merely, or on the oath of a single witness against the sworn answer of defendant. Gehres v. Craw- ford, 9Atl., 608(1887); Buggery. Cresswell, 12 Atl., 829 (1888) ; Diclc v. Ireland, 130 Pa. St., 299 (1889) ; Bank v. Thompson, 144 Pa. St., 393 (1891). § 5453. When Damages may be Awarded, though the Bill bo Dismissed. In Masson's Appeal, 70 Pa. St., 26 (1871), parties agreed to erect a party wall, but one refused afterwards to do so, and the other erected the whole wall. The first party proceeded to use the party wall in building, notwithstanding his re- fusal, and a bill for an injunction was filed. It was held. The court had power to ascertain and award compensation. It is well settled as a general principle that where a court of equity has obtained jurisdiction for one purpose, it miy retain it generally for relief. 15 226 ACCIDENT, MISTAKE OE FRAUD. The course is to sustain a bill for the purpose of injunc- tion, connecting it with an account, and not to compel the plaintiff to go into a court of law for damages. Thomas v. Oakley, 18 Ves. Jr., 184 (1811). To prevent multiplicity of suits the court will decree an account of damages done at the time the injunction is granted, and proceed to make a complete decree so as to settle the entire controversy between the parties. This principle was asserted and applied in Souder's Appeal, 57 Pa. St., 498 (1868) ; Nagle v. Newton, 22 Grattan (Va.), 8U (1872) ; Coleman's Appeal, 75 Pa. St., 441 (1874) ; Alli- son's Appeal, 77 Pa. St., 221 (1874) ; Head v. Meloney, 111 Pa. St., 102 (1885). § 5454. Where there is no Case for Equitable Relief the bill cannot be retained to recover damages. Dakin v. Union Pac. By. Co., 5 Fed. Eep., 665 (1880). § 5455. Directions for Drawing Bill Praying Relief from Ac- cident or Mistake. Secure full statement from client, and, if possible, ex- amine his witnesses. Comparing the facts carefully with the decisions, will develop the presence or absence of a case. In the light of these details, draft the bill exhibiting the whole history of the complaint. § 5456. Form of Bill in Case of Accident or Mistake. A form for such a bill can only profess to give the out- lines applicable to the case. The facts always differ. Title of the Court. In the Circuit Couet op the United States for the Eastern District of Pennsylvania, in Equity. If in a State court : In the Court of Common Pleas, No. . of the County OF , IN Equity. ACCIDENT, MISTAKE OE PRATJD. 227 Address to the Court, To the Honorable the Judges of the Circuit Court of the United States for the Eastern District of Pennsylvania. If in a state court : To the Honorable the Judges of the Court of Common Pleas, No. , of the County of Where there is a Chancellor, the bill is addressed to him, stating his title. It is amusing to read the address in England one hundred and fifty years ago : To the Right Honorable Philip Lord Hardwiche, Baron of Hardwicke, Lord High Chancellor of Great Britain. Names of Parties, Residences, etc. W. B. , of Marion, Indiana, and a citizen of the State of Indiana, brings this his bill against the N, Company of York, Pennsylvania, a corporation created by the laws of the State of Pennsylvania, and having its principal place of business in York, in the State of Pennsylvania. The averment of citizenship is necessary to give the United States court jurisdiction. The residences should always be stated. Stating Part of the Bill. The following facts are only given as a guide : Your orator avers that he is the patentee and original inventor of a useful and novel invention, for which a patent was duly and legally issued to him by the United States, through its proper officers, which patent is dated , and numbered , and was on said date duly recorded in the patent office in Washington, D. C. (Here describe the invention, etc.) That afterwards (date), the defendant desired to purchase from plaintiff his title to and right in said patent No. , as patented for the territory covered by the County of and State of , and so informed your orator ; thereupon negotiations were opened concerning the purchase by the defendant of the right to said patent in and for said County of as aforesaid, and the negotiations between your orator and the defendant related wholly and exclusively to the right and territory afore- said, that is to say, the right in and to said County of , State of Your orator did not negotiate concerning any other territory or 228 ACCIDENT, MISTAKE OR FRAUD. right, nor did the defendant offer or propose to purchase any other territory or right. Your orator agreed to sell and only intended to sell to the de- fendant his title and interest under said patent No. , in and to the said County of . He did not sell or agree to sell to defendant any right whatsoever in any other territory covered by said patent. The de- fendant agreed to pay for the right to said county the sum of dollars,, and the sum so agreed to be paid by defendant was only for the right in and to the said County of That the terms of the agreement between the plaintiff and the defendant were fully and finally fixed and settled upon by the parties and related solely and exclusively to the right in and to the said County of . The plaintiff agreed to sell and the defendant to buy the right in and to said county, for which it was to pay the plaintiff as aforesaid the sum of dollars. That the defendant well knowing the terms of said contract, and well knowing that the right the plaintiff agreed to sell and the right that it had agreed to buy was as aforesaid, viz. : a right to said County of , undertook to put in ivriting a deed or conveyance which should assign^ transfer and convey to the defendant the right to the said County of , but defendant, instead of so writing the deed of ccmveyance as to express the contract between the parties, did so write the same as to make it a deed and conveyance of the right for the whole United States, thereby assigning and transferring all the rights of the plaintiff to the defendant. That in so writing the said deed or conveyance the defendant by mistake caused the said deed or conveyance to include and embrace the whole right and in- terest of the said plaintiff in, to and under his said patent, whereas it was the intention of both parties as fully expressed and manifested in their negotiations and in their agreement that only the right to the said County of should be included in or covered by the said deed or conveyance. Tliat the plaintiff signed the instrument prepared by the defendant as afore- said as a deed or conveyance assigning and transferring the County of and no other right whatsoever to the defendant, and received no other or greater consideration whatsoever for the rights assigned and trans- ferred. That at the time the said instrument was so signed by your orator as aforesaid the value of his riglit and interest in and to the said patent was very great, to wit, more than dollars, and it is now of that value. That the defendant was at the time aforesaid well acquainted with the value and utility of your orator's invention ; it was engaged in a busi- ness requiring the use of such inventions ; and had endeavored to use other inventions of a somewhat similar kind, but had been prevented therefrom by the Company, a corporation existing under the laws of Ohio, v.'hose patents it, the defendant, had infringed, and the defendant tlien knew that the patent of the plaintiff had been upheld and sustained in suits brought against said Company. That at no time did the plaintiff sell or the defendant buy any other right in and to said patent save only the right to tlie said County. That neither on said , when said in- strument was signed,norat any timeprior thereto did the plaintiff offer to sell to defendant any other right than that above mentioned, nor did the defend- ant offer or propose to buy any other right, nor was there at any time any ACCIDENT, MISTAKE OK FRAUD. 229 agreement whatsoever for the sale or transfer of any other right. Tlie de- fendant was not on the said ,nor at any time, entitled to a conveyance, assignment or transfer of any other right, and the plaintiff never agreed to transfer or assign any other; the defendant never paid, promised or ex- pected to pay for any other right. Your orator avers that it was by mutual mistake of the parties that said instrument was so written as to assign or transfer all the right of the orator under his patent, and that he did not in- tend at any time to make such a transfer or assignment and 'the defendant did not intend that such assignment or transfer should be made, but both parties then and tliere meant and intended that only a right in and to said County of should be assigned and transfen-ed. Your orator further shows that the defendant after the signing of said instrument aforesaid, for the purpose of assigning and transfeiTing to it the right to said County of , took the said instrument into its possession and it has now possession thereof. That since the said instrument was so signed the defendant has had continuous possession thereof and the plaintiff has not seen the same. That the defendant did not make any claim to any- other right under said contract or said instrument save in and to the said County of , but on the contrary, after the execution of said instru- ment, the defendant proposed to buy from the plaintiff other rights and in- terests in and to his said patent and invention which the plaintiff declined to sell. That the plaintiff was wholly ignorant that the defendant claimed any right to said patent except the right to said County, until the , and on that day learned for the first time that the defendant claimed and asserted that said instrument, so executed on the day of , conveyed and transferred to it all of the rights of your orator under his patent aforesaid. That the defendant well knew that it did not acquire all the rights of your orator, and well knew that said instrument was not intended to convey such rights, but was mtended to convey a right to the County of , and no other right. Your orator further shows that he never executed, agreed or undertook to execute any other instrument to the defendant except the aforesaid in- strument, executed on the day of as aforesaid ; the defend- jiiit caused said instrument to be recorded in the patent ofRce at the City ol Washington, on the day of , yet the defendant, well liiiowing your orator's rights in the premises, and well knowing that it has no other right save the right to the County of , has falsely given out and asserted that it is the sole and exclusive owner of all rights under said patent No. . That the defendant in so giving out and asserting that it owns and possesses said rights is fraudulently and unconscionably endeavoring to profit by the mistake in reducing the contract between it and your orator to writing, and has thereby greatly injured your orator. That the said defendant under and pursuant to its false and fraudulent claim aforesaid has sold and has offered for sale rights and territory under the said patent so issued to the plaintiff as aforesaid ; that it sold such rights and offered them for sale with the full knowledge that its claim was utterly false, and that it has no right save and excepting only a right to the said County of 230 ACCIDENT, MISTAKE OR EKAUD. Your orator further shows that upon discovering the mistake in said, instrument of writing executed on the day of , he requested the defendant to correct said mistake, but it wrongfully refused so to do, and persists in its false and fraudulent claim that the said instrument as- signed and transferred to it all the rights of your orator in said patent No. . Your orator shows that the defendant, pursuant to its fraudulent, design and purpose of injuring your orator, does deny that he, your orator, is the owner of the said patent and possessed of any right there- under ; that by reason of the false and fraudulent apts of the defendant as aforesaid your orator is prevented from selling or disjjosing of rights or territory under his said pateilt ; that he has already suffered great injury and will in the future suffer great and irreparable injury by reason of de- fendant's fraudulent acts as aforesaid, which prevent your orator from making sales and disposing of territory and rights under said patent, unless defendant is restrained and enjoined from asserting or claiming that it owns any right or interest in or under said patent except the right, as afore- said, to the said County of . That the claim of the defendant based upon said deed, of which it has possession as aforesaid, is a cloud upon the- title of your orator to his said patent, and greatly impairs the value thereof, inasmuch as it prevents your orator from selling rights or territory. That the relative position of the parties hereto is the same at the filing of this bill as when said Instrument was executed. To the end that your orator may obtain the relief to which he is justly entitled in the premises, he now prays the court to grant him due process, of subpoena directed to the said Company, of , defendant hereinbefore named, requiring and commanding it to appear herein and answer, but not under oath, verification being waived, the several allegations in this your orator's biU contained. And your orator further prays that the mistake in said instrument executed be corrected, that said instrument be so reformed as to. assign and transfer to the defendant a right in and to said Count}^ of , that the defendant be forever restrained and enjoined from setting up any claim to the said patent No. save in and to the aforesaid County of , that it be pending this bill especially, and on final hearing that it be perpetually, restrained and enjoined from denying the title or right of your orator in or to his said patent, so that your orator's title to his patent be quieted and confirmed in him, that the defendant be enjoined and re- strained from asserting that it has any deed, conveyance or assignment from your orator for his patent, aud that it be required to deliver up for cancellation the said deed in its possession as aforesaid, and that the record of said deed be declared to be void. And your orator asks such other and further relief as may be equitable and proper. (Affidavit of plaintiff.) (Signature of counsel,) Pro Plaintiff. The Prayer for Subpoena. This has not been abolished in the United States courts ACCIDENT, MISTAKE OR PEAITD. i31 as in Pennsylvania courts. In the State courts that prayer should be omitted. Waiver by Plaintiff of Defendant's Oath to the Answer. This waiver in the above form is introduced to relieve the plaintiff from the necessity of overcoming a sworn an- swer by two witnesses, or by one witness and corroborating circumstances equivalent to a second witness. Paragraphs to be Numbered. The rule of the Pennsylvania courts requires that all paragraphs be numbered. § 5457. Form of Bill in Equity for Rescission and Cancella- tion on Ground of Fraud. In the Court of Common Pleas, No. , of Philadblahia County. In Equity. Term, 1893. No. Between A. F., Plaintiff, and M., Defendant. To the Honorable the Judges of the said Court : A. F., the plaintiff, brings this her bUl of complaint against M., the de- fendant herein : And thereupon the plaintiflf complains and says : First.— Thsit on or about the day of 1891, F., S. and C. were incorporated as the W. H. F. Company, in accordance with the pro- visions of the Act of the Legislature entitled " ,'' approved ,and its supplements thereto. The business of said company was the manufacture of manilla for roof- ing, siding, ceiling and sheathing of buildings, and seUing and disposing of the same, and the development of paper composed of manilla stock. Second. — That subsequent to the incorporation of the said W. H. F. Company, and previous to the day of January 1893, the said defend- ant M. became a stockholder in the said corporation and a member of its board of directors. Tliird. — That on or about the day of January 1893, the said cor- poration entered into an agreement with the said M., whereby the said M. undertook for a salary of three thousand dollars per year to " cash all the bills receivable" of the said company to the extent of twenty-five thousand dollars. A copy of said agreement is hereto attached and made part hereof marked "Exhibit A." 232 ACCIDENT, MISTAKE OR FEAUD. Fourth.— That on a subsequent date, to wit, during the month of May 1893, an agreement was made between the W. H. F. Company and M. , where- in it was stipulated that the said M., in consideration of brokerage commis- sions and interest to be paid to him by the said company in lieu of the salary of three thousand dollars, was to cash the "bills receivable" of the said company to the amount of twenty-five thousand dollars during said year, provided the said commissions and interest were not less than three thousand dollars during the year immediately following, and if said commissions were less than said sum, then the said W. H. F. Company was to pay the said defendant the balance necessary to make up the said sum of three thousand dollars, and it was further stipulated between the said M. and S. and F. that the said S. and F. should endorse all " bills receivable" of the said company for the accommodation of the said M. And your oratrix charges that the said agreement is now in the posses- sion of the said defendant, and that she is informed and believes and there- fore avers that said agreement was abstracted during the latter part of 1893, by the said defendant, when he broke open the private locked drawer of F., at the place of business of the W. H. F. Company, at Nos. , while tlie said F. was confined in the Pennsylvania hospital for the insane, resulting from his financial troubles. And your oratrix prays that the said defendant may be required to pro- duce the said original agreement. Fifth.— That in the month of 1893, a bill was i^resented in the Court of Common Pleas No. of Philadelphia County on behalf of the W. J. P. Manufacturing Company, setting forth that the indebtedness of the said W. H. F. Company was greater than seventy-two thousand dollars, and that it had no funds or credits to carry on its business and was insolv- ent, and i^raying for the appointment of a receiver, and thereafter, to wit, during said month of 1892, the said court appointed J. receiver to administer the assets of the said company for the benefit of its creditors. Sixth. — That on or about 1893, the said defendant M. called on your oratrix at her then residence, , and stated to her that tlie W. H. F. Company had endorsed certain pi'omissory notes amounting to twenty thousand dollars, which he had cashed in accordance with his agree- ment, and that her husband, the said F. , having also endorsed said notes, was liable thereon to the said defendant, who, by reason of said notes being worth- less, due to the insolvency of said company, would suffer a heavy loss. The said defendant then stated to your oratrix that her separate property (more fully hereafter described) was liable for and subject to the debts of her said husband, and thatit would certainly be swept from her if she refused to comply with his (the defendant's) demand to pay the said indebtedness of the W. H. F. Company. Seventh. — That your oratrix on said date was seized in her own demesne as of fee and in her own right and title of a three-story factory and prem- ises Nosw , and of the lot and three-story dwelling thereon erected. No. , more particularly described in " Exhibit B," which is hereto attached and made part of tliis bill. Eighth. — That your oratrix by reason of the false and fraudulent state- ACCIDENT, MISTAKE OR FRAUD. 233 Clients and misrepresentations of the said defendant, both as to lier status -and the value of her said properties and by reason of his impoi'tunity and the weak and nervous condition of your oratrix, brought about by her hus- band's mental and physical vpeakness and wrecked financial condition, and without the advice of counsel or a knowledge of the facts, on the day of 1893, executed to the defendant a mortgage upon said properties, to secure a certain bond given to the said defendant by F. to save harmless the said defendant from loss by reason of having cashed said " bills receiv- able " of the "W. H. F. Company, endorsed by the said F. On the same day the defendant acknowledged the receipt of said mort- gage and its purpose, in a receipt, a copy of which is hereto attached and made part hereof, marked " Exhibit C." Xiufh. — That upon defendant's further i-epresentations that he was not prof)erly secured by said mortgage, and that if your oratrix did not convey ■said property he could and would sweep everything from her and leave her penniless, and because of his constant, annoying, persevering and importu- nate demands, and while your oratrix was in the alarmingly nervous and ex- citable condition heretofore recited, and without understanding her position or the facts of the case and her legal status, the defendant, with intent to •defraud 3-our oratrix of her legal rights, procured from her the execution •of the agreement hereto annexed and made part hereof as "Exhibit D," wherein it is provided that she shall convey the title to said properties to , said defendant because of the indebtedness of the said F. upon said com- mercial paper as heretofore set forth. Tenth. — That in accordance with the terms of the said agreement your oratrix on the day of , conveyed to said defendant her title and right in said premises, Nos. and No. Eleventh. — Your oratrix charges that the said properties were her sepa- rate property and secured to her by tiie married woman's property act , approved , and its supplements thereto, and that the defendant's representations as to her liability for her husband's debts, and that if she re- fused to convey to him he could and would sweep all her property away from her and subject her to vexatious suits, were false, untrue and fraudulent. Twelfth.— Your oratrix further charges that the defendant's representa- tions tliat her said husband was liable by reason of endorsing said notes as accommodation for the said M., said endorsements having been made with- out consideration, were false, untrue and fraudulent, and being made while your oratrix was physically unable to consider or reject them, were intended by reason of her reliance on said defendant's statements as true, to rob her of her legal rights and her title to said property. Thirteenth.— That on the day of 1893, your oratrix caused to be duly tendered to the said M. , at No. Street, Philadelphia, the sum of dollars, the consideration heretofore recited for said prop- erties, with lawful interest thereon and costs, in rescission of said contract, and also a deed for the conveyance of the said properties to your oratrix by the said defendant, prepared and ready for execution. But your oratrix avers the said defendant refused to receive the said sum tendered, and re- fused to execute the said deed. And your oratrix, as in duty bound, stands 234 ACCIDENT, MISTAKE OR FRAUD. ready at all times to perform her obligation in this behalf, and having ten- dered as aforesaid, she brings said sum into court to abide the decree of your honorable court in the premises. And because your oratrix has no adequate remedy at law she comes into- your honorable court and prays equitable rehef as follows : First. — That it be decreed that the defendant make full discovery touch- ing all the matters and things herein set forth, and that he particularly and fully answer each and all of the averments of this bill. Second. — That the defendant be required to state an account of all the rents and income received from said properties, and of all taxes, repairs, etc., etc., paid on account thereof, and to make disposition thereof as your- honorable court may direct. Third. — That the said M., pending this bill, be especially, and upon final hearing, perpetually enjoined and restrained from disposing of any or all said real estate by conveyance or otherwise, or from encumbering the said) real estate, until the further order of your honorable court. Fourth. — That the said defendant be decreed to convey to your oratrix the said premises upon payment to him of dollars, paid by said; M. to your oratrix, in accordance with the terms of the contract set forth, in " Exhibit D." Fifth. — That the said mortgage between F. and A. F. his wife, and M.,- datedthe day of 1893, and the deed from F. and A. F. to the said M., dated the day of 1893, be declared null and void, and that the said M. be ordered and decreed to surrender them for cancella- tion and to convey to your oratrix in fee all the estate in said deed contained, free and unencumbered from the said mortgage. Sixth. — Such further and general relief as to your honorable court may seem meet in the premises. And your oratrix will ever pray, etc. A. B., (Attach Exhibits.) Solicitor pro Plaintiff. § 5458. Form of Bill in Equity to Set Aside a Contract om Ground of Fraud. In the Court of Common Pleas, No. , foe the City and County of Philadelphia. Sitting in Equity. C. D., 1 I. K. and B. K. J C. D. , of the City of New York, brings this his bill of complaint against I. K. and B. K., of the City of Philadelphia, and thereupon the plaintiff shows : 1. That on or about the day of , the defendants in the City of New York called upon and stated and represented to the plaintiff that they, the said defendants, had erected and built and were the owners of a very large theatre and summer garden (location), in the City of Philadel- phia, upon which they had expended one hundred and twenty tbousand<' ACCIDENT, MISTAKE OR FRAUD. 235- dollars, and that the same was built by them upon lots which they, the said defendants, held upon leases for the term of about five years. That the said defendants also stated to plaintiff that they had paid for the entire erection and completion of said building, except only the sum of about fifteen thousand dollars, which they desired to procure from plaintiff. That said defendants further stated and represented to plaintiff that they had then already let to certain persons in Philadelphia divers privi- leges for the sale of refreshments, etc., at an aggregate rental of $50,000 per annum, and tliat they then had good and ample security for the entire amount of said yearly rent. 2. That the said defendants thereupon offered to sell unto plaintiff one- sixth interest in said building, etc., and of the business to be therein con- ducted, and of all profits and advantages to be derived therefrom, for the sum of fifteen thousand dollars ; and said defendants then stated and repre- sented that said sum of fifteen thousand dollars would enable them to pay off all debts of every description for the completion of said building, etc., and also to put and have the same completely ready, with all decorations, scenery, wardrobe, actors and actresses, etc., for the production of a cer- tain spectacular play known as 3. That plaintiff believed the statements and representations of said defendants, so made as aforesaid, to be true, and so believing the same did, on the faith thereof, pay to said defendants, between the said day of and the day of , the said sum of fifteen thousand dollars, and said defendants and plaintiff thereupon entered into a certain contract in writing, a true copy whereof, as part hereof, is hereunto annexed, marked " Exhibit A." 4. That plaintiff has since ascertained from said defendants, and they admit to plaintiff, that the statements and representations made by them as aforesaid, and upon the strength whereof plaintiff paid and advanced said sum of fifteen thousand dollars, were, and each and every of said state- ments was false and untrue, and said statements were made for tlie pur- pose and with intent to cheat and defraud plaintiff, and were so untrue in the following particulars : Said defendants at that time had not paid for said building except only as to the sum of fifteen thousand dollars, and on tlie contrary were then indebted therefor to the sum of upwards of forty-five thousand dollars. Said defendants had not let certain or any privileges at a rental of fifty tlxousand dollars per annum, nor had they received security for such a rental, and, on the contrary, had only rented privileges to the amount of about fifteen thousand dollars per annum. 5. That plaintiff was induced to enter into said contract by the fraudu- lent representations of said defendants as aforesaid. 6. That the said defendants are wholly irresponsible and are indebted to an amount exceeding twenty-five tliousand dollars, as they now inform plaintiff, for the completion of said theatre and building. 7. That plaintiff has demanded of said defendants a detailed statement of all salaries claimed to have been paid by them for help in said theatre, which they wrongfully refuse to give. 236 ACCIDENT, MISTAKE OR FRAUD. 8. That the theatrical business in which said defendants are engaged and in which they have wrongfully and fraudulently placed the fifteen thousand dollars belonging to plaintifiE is, at best, extremely hazardous and uncertain, and has proved to defendants to be very unprofitable. Upon defendants' statements made to plaintifiE he charges that said business is daily sinking its capital and is utterly insolvent ; so that if the defendants are further permitted to carry on the same all of plaintiff's said moneys will be wholly lost, and he will be irreparably damaged and injured. 9. Plaintiff has requested of the defendants restitution of his money, but they have refused to return the same ; and they wrongfully insist upon ■continuing the prosecution of said business, although they admit that it is losing money. And plaintiff charges that unless restrained from so doing the defendants will continue said business until all the capital shall be ab- sorbed and a large amount of debt be incurred. Wherefore plaintiff needs equitable relief, and prays : 1. That said contract of the 1876 be canceled and set aside. 3. That a receiver be appointed, with the usual powers raid duties of receivers, to take possession of the entire assets of said theatre, scenery, wardrobe and theatrical property. 3. That pending this bill the defendants and each of tliem be specially and thereafter perpetually restrained and enjoined from carrying on said business and from removing, pledging, or disposing of said property, or any part thereof, and from further continuing any business under said con- tract. 4. That all of said property be sold under the direction of this honor- able court, and that out of the proceeds thereof your orator receive said sum of fifteen thousand dollars, with interest thereon from the 5. And that he may have such other or further relief as may seem proper, etc. (Signatures of counsel,) Solicitors pro Plaintiff. A copy of the agreement should be attached as "Exhibit A." § 5459. Form of Bill in Equity to Set Aside Deeds Obtained by Fraud. In the Court of Common Pleas, No. , for the County of Philadelphia. E. E., Plaintiff, V. J. B. P. and M. J. P., his wife, Defendants. Sitting in Equity. Term, 18 . No. To the Honorable the Judges of said Court : The plaintiff complains and says : I. That G. E. , late of the City of Philadelphia, died on or about the ACCIDENT, ^.IISTAKE OR FRAUD. 237 day of , A. D. , having first made his last will and testament, dated the day of , A. D. , which was duly admitted to probate by the register of wills for the County of Philadelphia on the day of , A. D. A copy of said will is hereto attached, marked " Exliibit A." II. That, by said will, the said G. E. gave and devised to his wife, the plaintiff, all his property, real, personal and mixed, during her life and so long as she should remain a widow. And he appointed plaintiff the sole executrix of his said will so long as she sliould remain his widow. That lettei-s testamentary thereon were duly granted by said register of wills to plaintiff on the said day of , A . D. III. That the said testator left surviving liim the plaintiff and five chil- dren, one of whom, M. J. E., has since intermarried witli J. B. P. IV. That the said G. E. died seized of the following real estate : (De- scribe the property.) Y. That T.I. 31. et ux. , by indenture bearing date the day of , A. D. , and recorded at Philadelphia in Deed Book No. , p. , etc. , granted and conveyed to plaintiff in fee, the remaining undivided moiety or half part of the premises first abcA-e mentioned, and also, (Describe the other property of the plaintiff.) VI. That plaintiff has remained tmmarried since the death of her- said husband, and until the day of , A. D. , held the property mentioned in paragraplis IV. and V. of this bill, and exer- cised absolute control of the same, receiving and collecting the rents, income and profits thereof. That upon the said day of , A. D. , the said defendant, ^l. J. P. , fraudulently procured the exe- cution to her of two alleged deeds by plaintiff, for the said real estate above mentioned. The said alleged deeds were recorded , in Deed Book , No. , pp. ,etc., copies of which are hereto annexed, marked Exhibits "B" and " C." Plaintiff is seventy years of age, and was, at the time of the execution of said alleged deeds, totally blind. She was persuaded and induced by the said defendant, M. J. P., to go with her to the office of a conveyancer, and was told to sign papers, which, she was informed, were only powers of attorney to her said daughter, M. J. P. , to collect the rents and income' of said estate. The plaintiff by reason of her blindness was unable to read the papers so executed by her and the same were not read to her, but trusting to tlie representation made to her that the papers were but powers of attorney authorizing her said daughter to collect said rents and income, she signed tlie same, the said M. J. P. agreeing in consideration tliereof to clothe plaintiff, pay her rent and give her the sum of $4 per week for her support. VII. Plaintiff received no consideration for the execution of the said papers, and since the execution of the same plaintiff has received only the sura of $4 per week, which is wholly insufficient for her said support, but the said M. J. P. has always failed and refused to pay plaintiff's said rent. ■238 ACCIDENT, MISTAKE OK FEAUD. or to supply plaintiff with any clothing whatever. Plaintiff thereupon -desired to resume the control of her said estate, and was then for the first time informed that she had executed deeds in fee-simple for the same to the said M. J. P. VIII. Plaintiff further shows that the said properties, described in said Exhibits " B " and " C," produce a yearly rental and income of over §1,000. All of which the said M. J. P. retains to and for her own use, and refuses to appropriate the same to the relief of plaintiff, who is in great need and •distress. IX. Plaintiff avers and charges that the said papers were procured by means of fraud and misrepresentation and were wholly without considera- "tion. Wherefore she needs equitable relief and prays : 1. That the said alleged deed, dated the day of A. D. , and recorded in Deed Book , be decreed fraudulent, void and of no effect, and that the defendants be decreed to execute a recon- veyance of the real estate described therein to plaintiff. 3. That the said alleged deed, dated the day of , A. D. , and recorded in Deed Book , etc. , be decreed fraudulent, void and of no effect, and that the defendants be decreed to execute a reconveyance of the real estate described therein to plaintiff. 3. That the said defendants be enjoined from executing any transfer ■or conveyance to third parties of any of the real estq,te mentioned in said :alleged deed. 4. That if the said defendants have already made any transfer of plaintiff's interest in any portion of said real estate for value, that they may be decreed to pay to plaintiff the amount of such consideration received or :to be received. 5. Further relief. (Signatures of counsel,) Solicitors for Plaintiff. •City and County op PniLADELPmA, ss. : E. E. , the plaintiff above named, having been duly sworn according to law, deposes and says that she has heard the foregoing biU of complaint read to her, and that the facts therein set forth so far as they are stated of her own knowledge are true, and so far as they are stated on information -derived from others she believes them to be true. Sworn to and subscribed before me \ this day of A. D. ( E. E. Notary Public. (Attach Exhibits "A," " B " and " C. ") ACCIDENT, MISTAKE OR FEAITD. 239 g 5460. Form of Bill in Equity to Set Aside a Deed Obtained from an Old Person by ITndue Influence— Fraud. In the Coukt of Common Pleas, No. , foe the City and County of Philadelphia. Sitting in Equity. A. E. W., Plaintiff, \ V. I Term, 18 . No. E. J. E., Defendant. ) The plaintiff complains and says : I. That she is the only daughter and only living child of M. W. and A. his wife, late of the City of , deceased ; that she was born in , on the day of , A. D. , and has resided ever since in the City of Philadelphia. II. That the said M. W., on the day of , signed an in- strument purporting to be a deed of trust, which said instrument was recorded on tlie day of , at Philadelphia, in Deed Book , No. , p. , and provides, as will be seen by the copy made part hereof and hereto attached marked " Exhibit A," inter alia as follows : For the consideration of one dollar the said M. W. conveys to one E. J. E. all the interest of tlie said M. W. in the properties mentioned in said instrument in trust during the lifetime of him, the said M. W., to collect the rents, receive the incomes, and after paying taxes and repairs, to pay over the said income to said M. W. during his life, and after his decease to collect rents and income, pay taxes and repairs, after which to pay over to A. E. W., daughter of said M. W. , the sum of five hundred dollars per annum for her natural life, the balance of the said issues, profits and income to be for the said E. J. E. for her own proper use, benefit and dis- posal, and from and immediately after the decease of the said A. E. W., then to the said E. J. E., her heirs and assigns in fee-simple forever. III. Plaintiff avers and says that at the time the said alleged deed was signed, the said M. W. was in his eightieth year, a lunatic, weak in body and mind, easily influenced, and not possessed of sufficient mental capacity to comprehend the true meaning of said instrument nor to understand the effect of his act. rV. Plaintiff further avers and says that the said E. J. E. has acquired the control and possession of all the property of the late M. W., aggregat- ing in value some thousand dollars, as plaintiff is credibly informed. That the said M. W. departed this life on the day of , and since said date the said E. J. E. claims as her right by virtue of said alleged deed the whole of said property, subject alone to the five hundred dollars annuity of plaintiff. And plaintiff charges that at the time said instru- ment was signed the said E. J. E. had no claim, legal, equitable or moral, upon the bounty of said M. W. V. Plaintiff charges that the said E. J. E., together with others, by 240 ACCIDENT, MISTAKE OR FRAUD. fraud and undue influence, and with intent to cheat and defraud plaintiff out; of her just and rightful inheritance, procured the execution of said instru- ment, and now claims the property therein mentioned as the fruit of such fraud. Therefore plaintiff has no adequate relief at law and prays equitable relief as follows : (a) That the alleged deed from M. W. to E. J. E. , dated the day of , be declared null and void, and that the said E. J. E. be ordered and decreed to re-convey all the estate and premises in said deed mentioned to plaintiff in fee. (6) That pending this bill the said E. J. E. be specially and thereafter perpetually restrained from disposing of any of the real estate above men- tioned, or conveying or in any manner encumbering the same. (c) That a receiver be appointed to take charge of the property men- tioned herein. (d) That the said E. J. E. be required to state an account of all rents and income received from tlie property aforesaid, and of all taxes and repairs- paid on account thereof, and to dispose of the same as the court may direct. (e) Other and further relief. (Signatures of counsel,) Solicitors for the Plaintiff. City of Philadelphia, ) > ss. : State op ) A. E. W., the above-named plaintiff, being duly sworn according to law,, doth depose and say that the facts set forth in the foregoing biU of com- plaint are just and true so far as the same are stated from her own knowl- edge, and that the facts stated on information received from others she believes to be true. Sworn to and subscribed before me this day of , A. D. 18 . (Attach a copy of the deed as " Exhibit A.") § 5461. Praecipe for Subpoena. Where the bill is filed in the State courts, no subpoena, issues. (See Pennsylvania Equity Eule II.). Of course, in the State court no prcecipe is filed. In the United States courts a prcecipe is needed — thus : ACCIDENT, MISTAKE OE FRAUD. 24l "W. B., a citizen of (as in the biU), I V. The N. Company, a corporation ( created, etc. (as in the bill). I Sir : Issue subpoena in equity upon bill filed, retble. see. leg. C. D., Pro Plaintiff. To Esq., (Date.) Clerk of the Circuit Court of the United States for the Third Circuit, District of § i -^32. Endorsement on Bill where no Praecipe for Subpoena Filed. As already remarked, in the State court no subpoena issues. The bill is endorsed thus (see Amendments to the Pennsylvania Equity Rules, adopted January 15, 1894) : No. . Term, 1894. In the Coxjet of Common Pleas, No. of County. In Equity. A. V. B. and C. BHjL of Complaint. To the within-named Defendants : You are hereby notified and required to cause an appearance to be entered for you in the within-named court and file your answer to the within bill of complaint within fifteen days after the service hereof on you, and to observe what the said court shall direct. You are also notified that if you fail to enter your appearance and file your answer within fifteen days, you will be liable to have the biU taken pro confesso, and a decree made against you in your absence. Witness our hands at , this day of , one thousand eight hundred and ninety-four. (Signatures,) Soliators for Plaintiff. 16 CHAPTER X. BILLS OP DISCOVERY. § 5463. Natiire of Bills of Discovery— Inspection. A bill of discovery is a bill in equity, filed for the sole purpose of obtaining discovery to be used in another and independent proceeding. It differs from a bill for relief in that it usually contains no prayer for relief. It may pray that the trial of the cause be enjoined until the discovery sought can be secured. The answer when filed can be used on the trial of the cause as the admission of the party making it. If so used, the whole of such answer must be read. The answer, however, need not be used at all. The an- swers to interrogatories are included in the above rule as to reading the answer to the bill. The object of the bill is to obtain an answer under oath. "When this is obtained the equity suit comes to an end ; there is no hearing or decree. The Act of 1T98, for the production of books and docu- ments at the trial, does not affect the right to discovery previous to the trial. In Reed v. Stevenson, 6 W. N. , 174 (1878), Thayer, P. J., said: "It is quite clear, however, that the Act of 1798 relates to the compulsory production of books and writings at the trial of issues at law, and that it does not in the least curtail or affect the powers which a court of eqixity possesses to compel the production of books and writings for inspection of the opposite party. The dis- covery of facts, material to a just determination of issues, is a branch of equity jurisdiction distinctly conferred upon the courts by the Act of 1836, and in the exercise of that 242 BILLS OF DISCOVERT. 243 jurisdiction they have, by the express terms of that act, ' the powers of a court of chancery.' " " The Act of 1798," says the learned judge who deUvered the opinion of the court in Cottrell Y.Warren (6 Harris, 488), "was intended to supply the want of a bill of discovery, so far as relates to the production of papers that are pertinent to the issue to be tried, but the bill of discovery is in some respects a much better remedy, for, by means of it, an opponent may be called upon not only to produce all books and papers, but to admit all facts material to the issue." § 5464. Outline of Statutes, Practice, etc. Chapter XXXIII., Vol. II„ §§ 2554^2598 (Brewster's Practice), gives at length the statutes, decisions, forms, etc., as to bills of discovery : (1) in aid of a suit at law ; (2) in aid of a fi. fa. The following is a list of the headings of that chapter : General remarks as to bills of discovery in aid of a suit at law § 2555 The Pennsylvania statutes 3556 The PhUadelphia rule 2557 The Supreme Court rules as to bills in equity 2558 General principles governing bills of discovery 2559 Directions as to drafting aU bills in equity, and specially biUs of discovery in aid of suits at law 2560 The interrogatories 2561 Scandal — Impertinence 2562 Printing number of copies to be served 2563 If biU be filed against a corporation 2564 Time within which a bUl of discovery should be filed 2565 Effect of filing the biU 2566 How to proceed if defendant in bill be a non-resident 2567 After service of the bill 2568 Demurrers and answers in equity 2569 General directions as to answers in equity, and specially answers to bills of discovery 3570 Effect of the answer 2571 If the defendant in the bill of discovery need discovery from the plaintiff 2572 If an answer be insufficient 2573 The form of biU of discovery in aid of an action at law 2574 244 BILLS OF DISCOVEKY. Form of interrogatories § 3575 Exceptions to answers as insufficient 2576 Form of exceptions for scandal and impertinence 2577 Bill of discovery in aid otfl. fa 2578; When bUl may be filed 2579. Against whom 2580 Requirements of the bill 2581 Affidavit necessary 2583 Interrogatories 2583 Scire facias to issue 2584 Ten days' service • 2585 Capias against defendant 258& Property bound by writ 3587 Costs 3588 Agent of plaintifif may make oath 2589^ General principles applicable to bills of discovery in aid of fi.fa 2590 Directions for drafting the bill 2591 Form of bill of discovery in aid of ^i. fa 2593 Cover and indorsement 2593 Interrogatories 2594 Scire facias 2595 Print bill and interrogatories and serve 2596 Effect of service 2597 Defendants may demur and plead — the general practice 2598 The equity jurisdiction in discovery is conferred by the 13th section of the Act of June 16, 1836 (P. L., 789) which confers equitable jurisdiction upon the Court of Common Pleas so far as relates to " the discovery of facts material to a just determination of issues and other questions arising or depending in the said court." This act at first applied only to the Common Pleas of Philadelphia County, but was extended throughout the State by the Act of Feb. 14, 1857, § 1 (P. L., 39.) By section 4 of the Act of April 10, 1848 (P. L., 449), it is provided that the Court of Common Pleas of Philadelphia " shall have the same jurisdiction and power in all suits * * * for the discovery of facts that are now possessed by courts of chancery." The provisions of this act were also extended throughout the State by the: above Act of 1857. BILLS OF DISCOVERY. 245 § 5465. Proceedings to Obtain Discovery ftom Corporation against which Judgment has been Rendered— Peti- tion to be Filed, etc.— Interrogatories— Sequestrator may be Appointed, etc. Whenever a judgment may be rendered in any court of record against any private corporation within this Commonwealth, in any civil action, and a. -writ of fieri facias shall be issued on such judgment, and the sheriil to whom the same may be directed shall make a return of nulla bona on the same, it shall and may be lawful for the plaintiff in such action to apply, by petition and affidavit, to the court in which such judgment has been rendered, stating that no property of the defendants can be found on which an execution may be levied, and that the party making the appUcation verily believes that the effects of the corporation are concealed for the pur- pose of avoiding the payment of their debts, whereupon the said court may issue a citation, directed to the president, secretary, treasurer or other offi- cers and members of the said corporation, commanding him or them to ap- pear in court on a day certain, and answer such interrogatories as may be put to them touching the effects of the corporation, which citation shall be served by the sheriff ; and it shall be the duty of the plaintiff to file interrog- atories to be put to such ofScer or member, at least fifteen days before the re- turn-day of such citation, in the office of the prothonotary of such court, and the person or persons to whom the said citation shall be directed, shall, on or before the return-day thereof, file his or their answers to such interroga- tories, upon oath or affirmation, in the office of the prothonotary ; and if ajaj person to whom such citation may be directed shall neglect or refuse to file his answers as aforesaid, or shall file answers which, in the opinion of the court, shall be unsatisfactory, it shall be lawful for the court to issue an a,ttachment for contempt against the person so refusing to answer, or an- swering imsatisfactorily. And if upon the answers to such interrogatories it shall appear that any effects of the said corporation are in the possession or power of any member of the corporation, or of any other person or persons, it shall and may be lawful for the court to issue an order, in the nature of an order of sequestration, which being served by the sheriff on the person or persons in whose possession or power such effects are alleged to be, shall have the same force and effect as if he or they had been sum- moned as garnishees in a foreign attachment, and the like proceedings shall thereafter be had against him or them, as may be had against such gar- nishees, after judgment rendered against the defendant in a foreign attach- ment, and any debtor of said corporation may plead such sequestration and proceedings against him, in bar of any action brought by such corporation, exactly as the garnishee in a foreign attachment may plead the proceed- ings in the same, in bar of an action by the defendant in the same. Act of April 14, 1828, § 1 (10 Sm., 213). A bill for discovery against an insolvent corporation, under the Act of 1836, must be tiled by a sequestrator ap- 246 BILLS OF DISCOVEIIY. pointed under that act. Bevans v. Turnpike, 10 Pa. St.,. 1T4 (1849). § 5466. Auditor-General may in Certain Cases Compel Discovery ftom Charitable Corporations or Associations. It shall be the duty of the auditor-general, whenever he shall have reason to believe that any property shall be defeasibly held, and liable, upon oflSoe found, to accrue to the treasury, or that the income of any corpo- ration or association, as aforesaid, shall exceed the limit allowed by law, to call upon any and all officers or trustees thereof, to make, within thirty days, a true return and exhibit of all their property, and the annual income- thereof ; and if no return be made within such time, or the same be unsat- isfactory to him, it shall be further his duty to cause to be filed a bill of dis- covery in the Supreme Court, or in any court of the proper county having equity jurisdiction, against the officers or trustees of any such corporation or association, which the defendants therein shall answer under the com- pulsion usual in such cases, and their answers may be used in any pro- ceeding to assert the rights of the Commonwealth. Act of April 36, 1855, §14ntered. Where are said books? Who had charge of them when said entries were made ? Who has charge of them now ? 11. Did the said S. H, ever lend any money to the person from whom lie received the said check? If so, when, where, in whose presence and in what form? By delivery of bank-notes or by a check? If by a check, on what bank, for what amount and by whom drawn ? 12. If, in answer to the eleventh interrogatory, the said S. H. shall say BILLS OF DISCOVEKY. 255 that he did lend money to the person from whom the said check was re- ceived, state whether the amount so loaned was delivered to said S. H. in addition to the said check received by him. 13. Did the said S. H. ever sell the person from whom he received said check any real or personal property ? If so, state when and where, and give the dates, items and particulars. 14. When, wliere and in whose presence did S. H. endorse the said check ? 15. Was the said S. H. present, or does he know any one who was present, when the said check on which suit is brought was signed ? If said H. was present, state when, where and under what circumstances said •check was signed. State all the particulars. 16. If, in answer to the fifteenth interrogatory, the said S. H. shall say that he does know any one who was present when said check was signed, state the fuU name and address of the person or persons present. 17. If, in answer to the fourteenth interrogatory, the said S. H. shall say that any person or persons were present when he endorsed the said check, state the full name and address of every such person. 18. If, in answer to the preceding interrogatories, the said S. H. shall say that he did not receive the said check from W. A. , but from some other person, then state whether the said person from whom the check was re- ceived gave any information as to the manner in which he received the said check, or from whom. State fully what the information was. 19. If, in answer to the preceding interrogatories, the said S. H. shall say that he received the said check from some person other than W. A. , state what person or persons held the said check before the said person from whom said H. received the same. 20. What is the address and occupation of the said S. H. ? 21. How came he to be the holder of said check sued on? Has he ever seen said check ? If so, when, where and in whose presence did the said S. H. first see said check ? Who offered or handed said check to said S. H. ? 22. State the name and address of every person and of every institution that has held said check, and for whom and on whose account each person or institution held said check. 23. Does not the said S. H. know or has he not been told that said clieck was at one time in the custody of a gambler or a thief ? 24. State fully and in detail all the knowledge and all the information of said S. H. as to the making and passing of said check. 25. Does not the said S. H. know or has he not been told that said check was obtained by fraud? 36. For whose use is the suit on said check prosecuted ? Has no person save said S. H. any interest, direct or remote, in said chock ? If so, give his or her full name and address. 27. Does not the said S. H. keep, or did he not keep, a book or books? Has he any entry in any book or on any paper touching said check,— the receipt thereof, the purchase thereof, or the consideration therefor, or in anywise relating to said check ? Or has he ever had any such entry or memoranda ? If aye, give a full and true copy of all such entries or memo- 256 BILLS OF DISCOVEEY. randa, and if the same do not now exist, state to the best and utmost of his recollection and belief the contents of all such entries and of all such memo- randa, and state why they do not now exist, and who destroyed them, and. why they were destroyed. 28. Has the said S. H. had any correspondence with any person touch- ing said check ? If so, attach full and true copies thereof. And if said correspondence or any part thereof is not in possession of said S. H., state where the same is, or in whose control it is believed to be, and when it was parted with and why, and to the utmost of recollection and belief give the full contents thei-eof . 29. Did not the said S. H. take said check within a very short time after its receipt by him, to Philadelphia, and deposit said check for collection in his own name with the banking company ? Note. — The defendant, S. H. , is required to answer all the foregoing interrogatories, numbered from one to twenty-eight, inclusive. (Signature of counsel,) Pro Plaintiff. Endorsement. Same as the bill :— Case ; Court ; Term ; No. Interrogatories. To the Defendant above-named : You are hereby notified and required, within ten days after service hereof upon you, exclusive of the day of such service, to answer the within iuterrogatories. Witness my hand, at , the day of , A. D. (Signature of counsel,) Solicitor for Plaintiff. CHAPTER XI. BILLS BY AND AGAINST CORPORATIONS. Herein bill by corporation against its directors or other officers ; bill by receiver or assignee of insolvent corpora- tion against stockholders for unpaid installments, or to enforce their statutory liability for the corporate debts ; or by assignee of a bank against directors who have impaired its capital stock, to enforce their personal liability ; and generally, all actions incident only to a corporation, to pro- tect its interests and to enforce and maintain its rights. Also bills against corporations by stockholders to restrain hurtful acts ; to restrain acts ultra vires ; to conduct a corporate election ; to collect dividends ; by strangers to restrain acts ultra vires ; and by creditors for foreclosure. § 5480. Equity Jurisdiction— Generally. Judge Story, in his exhaustive work on Equity Juris- prudence, thus states the law as to equitable jurisdiction at § 1252 : "We may refer to that class of cases where the stock and other property of private corporations is deemed a trust fund for the payment of the debts of the corporation ; so that the creditors have a lien or right of priority of pay- ment on it, in preference to any of the stockholders in the corporation. Therefore, if a corporation is dissolved, the contracts of such corporation are not thereby deemed extinguished, but they survive the dissolution of the cor- poration ; and the creditors may enforce their claims against any property belonging to the corporation, which has not passed into the hands of a bona fide purchaser, for 17 257 258 BILLS BY AND AGAINST COKPOEATIONS. such property will be held affected with a trust, primarily, for the creditors of the company, and, subject to their right, secondarily, for the stockholders, in proportion to their interests therein. Upon the like ground, the capital stock of an incorporated bank is deemed a trust fund for all the debts of the corporation ; and no stockholder can entitle himself to any dividend or share of such capital stock, until all the debts are paid. And if the capital stock should be divided, leaving any debts unpaid, every stockholder receiving his share of the capital stock would, in equity, be held liable pro rata to contribute to the discharge of such debts out of the fund in his own hands. This, however, is a remedy, which can be obtained in equity only, for a court of common law is incapable of administering any just relief ; since it has no power of bringing all the proper parties before the court, or of ascertaining the full amount of the debts, the mode of contribution, the number of con- tributors or the cross equities and liabilities which may be absolutely required for a proper adjustment of the rights of all parties, as well as of the creditors." § 5481. Jiirisdiction of the Supreme Court. ' ' The jurisdiction of the Supreme Court shall extend over the State, and the judges thereof shall * * * have original jurisdiction in cases of injunction where a corporation is a party defendant." Constitution of 1874, Art. V., § 3. Except on an injunction bill, the Supreme Court has no original jurisdiction of a suit against a corporation. Fargo V. Bwy. Co., *81 Pa. St., 266 (1875). This original jurisdiction includes an injunction bill against a municipal corporation. Wheelers. Philadelphia, 77 Pa. St., 338 (1875) ; Bruce v. Pittsburg, 161 Pa. St., 517 (1894). An injunction must be the main object of the suit, not merely subsidiary thereto. McClure v. Rwy Co., 32 Leg. Int., 448 (1875) ; Coal Co. v. Navigation Co., 2 W. N., 241 (1875). The new Constitution has not affected the jurisdiction of BILLS BY AKD AGAINST COKPOKATIONS. 259 the Common Pleas in injunction cases against corporations. McOeorge v. Iron Co., 32 Leg. Int., 372 (18T5). The Supreme Court may decline to assume jurisdiction. Coal Co. y. Navigation Co., 2 W. N. 241 (1875) ; Clark v. Washington, U5 Pa. St., 567 (1891). § 5482. Jurisdiction of the Courts of Common Pleas. "The several courts of common pleas shall have the jurisdiction and powers of a court of chancery so far as relates to * * *. " V. The supervision and control of all corporations other than these of a municipal character," etc. Act June 16, 1836, § 13 (P. L., 789). § 5483. Authority to Issue Injunction Generally. The same section provides for : " The prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals." The last-cited section originally applied to the Phila- delphia, courts alone. But the powers conferred by it and all other equity powers vested in the Philadelphia courts were by Act of Feb. 14, 1857, § 1 (P. L., 39), extended to all the courts of common pleas in the State. § 5484. Injunctions where Private Rights or Corporate Rights or Franchises Invaded. Where it is alleged that a corporation has injured or Invaded private rights or corporate rights or franchises, and upon inquiry this is ascertained to have been done without right, an injunction may issue, etc. Act of June 19, 1871, § 1 (P. L., 1361), cited at length in Chapter on "Injunc- tions. " But corporate franchises cannot be forfeited by bill in equity, filed under this act. Lejee v. Bwy. Co., 10 Phila., 362 (1875) ; Market Co. v. P. & R. Co., 142 Pa. St., 580 (1891). 260 BILLS BY AND AGAINST COEPOEATIONS. § 5495. When Railroads Cross Railroads, the courts must ascertain and define the mode of crossing- which will inflict the least possible injury upon the road to be crossed, and if practicable prevent a crossing at grade. Act of June 19, 1871, § 2 (P. L., 1 361), cited at length in Chapter on "Injunctions." See Railroad Co.'s Appeal, 13' Atl. Rep., 915 (1888) ; B. B. Co. v. B. B. Co., 134 Pa. St., 641 (1890). § 5486. "Where the Conditions on which Privileges were Granted by any Act of the General Assembly have not been Performed the Attorney-General shall institute proceedings on com- plaint of a party in interest, and on judgment against the corporation all the powers granted on such conditions shall cease, etc. Act April 1, 18Y0, § 1 (P. L., 45). This means clearly a proceeding in the form of a quo warranto. Equity does not enforce forfeitures. In the case of The National Endowment Co., 142 Pa. St., 450 (1891), the company had been granted a charter by the court of McKean County. Subsequently an order was made upon the company to show cause why the approval of the charter should not be revoked, on the ground that the pur- poses of the charter were not within the meaning of the Act of 1874. "The certificate of incorporation was afterwards annulled. Held, That inasmuch as the charter had never been authorized by any act of Assembly, an action of qtu> warranto was unnecessary, and the order revoking the cer- tificate of incorporation was proper. § 5487. Abandonment by Certain Corporations, as of turnpikes, plank roads, canal or slack-water naviga- tion or public highway of any corporation for five suc- cessive years, shall be deemed an abandonment of the same and of all easements, etc., and all rights, privileges and franchises shall cease. Act March 22, 1871, § 1 (P. L., 231). BILLS BY AND AGAINST CORPORATIONS. 261 .^ 5488. Jurisdiction of all Litigation between Stockholders and by Creditors, etc. The Act of May 4th, 1893 (P. L., 29), provides : That the several courts of common pleas of this Commonwealth having the powers of a court of chancery, shall have jurisdiction of all litigation and disputes between stockholders and parties claiming to be stockholders, and between creditors and stockholders and creditors and the corporation, of all corporations within this State ; and in the proceedings before the court in such case, the service of process upon the company shall be held and considered as a service upon one of the principal defendants, as pro- vided in the first section of the Act of April sixth, one thousand eight hun- dred and fifty-nine, relating to equity jurisdiction and proceedings. § 5489. When Corporations shoiild be Named as Party. All suits to maintain and enforce the rights or protect "the interests of a corporation should be brought by the directors in the corporate name, but the stockholders can sue both at law and in equity in their own names in behalf of corporate interests where the corporation cannot or will not do so in its corporate capacity. The pleadings must show either the refusal of the corporation to sue on proper request, or that it is in the control of the parties against whom suit is brought, and in either event the corporation may be joined as a party defendant. A corporation should be made a pai-ty defendant in any suit affecting its corporate rights, liabilities, property or franchises. Where the prayer is for an injunction, or a receiver, or an account, or to foreclose a corporation mortgage, or to prevent the usurpation of corporate franchises, the corpo- ration is a necessary party defendant. § 5490. When Corporations Suable in Equity. It is unnecessary to say that for just causes corporations can sue and be sued in equity precisely as natural persons, for account, for mal-administration of trusts, for nuisance, and generally for all wrongs cognizable in chancery. In addition, it may be noted that corporations may be pro- ceeded against for all : 262 BILLS BY AND AGAIMST COllPOllATIONS. § 5491. Acts Ultra Vires by Injimetion. This would seem to be very clearly so without the as- sistance of the Act of June 19, 1871, § 1 (P. L., 1361), al- ready cited. In cases of trespass by corporations, equity will act with promptness and apply stringent rules. Corporations must keep within the strict limits of their statutory powers, and any deviation from the terms prescribed by the statute will be punished by injunction. Where corporations exceed their authority in the con- struction and operation of their plant or works, and do not exercise due care, skill and promptness, thereby causing in- jury to others, the courts will interfere. Bills to restrain corporate action within proper limits are very frequent and are used in cases of corporations of a municipal and public character, as well as of a private, mercantile or eleemosynary kind. § 6492. When Corporations Cannot be Sued in Equity. 1. To secure a forfeiture. This redress is only obtained hjquo warranto. Turnpike Co. v. McConaby, 16 S. & R., 140 (1827) ; Comm. v. Burrell, 7 Pa. St., 34 (1847) ; Comm. V. Bridge Co., 20 Pa. St., 185 (1852) ; Comm. v. R. R. Co., 20 Pa. St., 518 (1853) ; Buck Mt. Co. v. Lehigh Co., 50 Pa. St., 91 (1865) ; R. R. Co. v. Keenan, 56 Pa. St., 198 (1867) ; Lejee v. Rwy. Co., 2 W. N., 170 (1875). 2. To try the validity of a corporate election. The proper remedy is quo tvarranto. Vpdegraff v. Crans, 47 Pa. St., 103 (1864); Comm. v. Graham, 64 Pa. St., 339 (1870); Gilroy's Appeal, 100 Pa. St., 6 (1882); Comm. V. Detwiller, 131 Pa. St., 614 (1890) ; Jenkins v. Baxter, 160 Pa. St., 199 (1894); Springs Co. v. McMeen, 161 Pa. St., 639 (1894), though the apparent object of the bill is to compel the surrender of corporate property. 3. To compel a public corporation to perform a duty to the public. This redress is obtained by mandamus. A corporation cannot be compelled to perform a public duty at the suit of a private individual, in the absence of BILLS BY AND AGAINST COEPOEATIONS. 263 special right or authority. Such right can be exercised by the Attorney-General alone. Coal Co. v. Navigation Co., 50 Pa. St., 91 (1865) ; Philadelphia v. Bridge Co., 6 Phila., 523 (1868) ; Cumberland Valley R. R. Co.'s Appeal, 62 Pa. St., 218 (1869) ; Lejee v. Rwy. Co., 2 W. N., ITO (1875) ; Collins v. Northeastern Elevated Rivy. Co., 32 W. N., 379 ; 32 Amer. Law Reg., 897 (1893) ; Comm. v. Ele- vatedRwy. Co., 34 W. N., 267(1894). 4. To recover damages for wrongs committed by indi- viduals who are officers of a corporation but acting clearly beyond the charter right. It was at one time supposed that a corporation could not commit a tort. This has been modified, but the remedy, wherever applicable to a corpora- tion, would be at law and not in equity. Where the right of action lies exclusively in a corpo- ration, as in calls upon stock, creditors cannot file a bill to enforce the right until after demand upon and refusal by the corporation to proceed ; yet if the wrong complained of be one that has been perpetrated by the officers or directors of the corporation, such bill may be immediately filed with- out first making such demand. Penn Bank v. Hopkins, 111 Pa. St., 328(1885). § 5493. Form of Bill by a Corporation to Restrain Interference with Corporate Franchises. In the Court of Common Pleas, No. , of Philadelphia County. Sitting in Equity. Between The Railway Company, Plaintiff, and City of Philadelphia and A. B., Director of Public Works of said city, and C. D., Chief of the Bureau of Highways of said city, Defendants. Term 18 . No To the Honorable the Judges of said Court : The Railway Company, of the City of Philadelphia, brings this its bill against the above-named defendants and complains : I. By an act of General Assembly of this Commonwealth, approved 264 BILLS BY AND AGAINST COKPORATIONS. the day of , A. D., 18 , plaintiff was incorporated with authority inter alia : To lay a single track of railway, commencing on Street ; thence along said Street to Street ; thence along said Street to Street ; thence along said Street to Street ; thenco along said Street by double track to Street ; thence along ■said Street by double track to Street ; thence along Street by double track to Avenue; thence along said Street by single track to ivenue ; thence along said Ave- nue to Street ; and connect with its said track or tracks on said Street ; and thence along said Street by double track to the River , witli the right to make such turnouts, sidings and switchings and connections as the said company may deem requisite to join their own tracks, or connect with any other railway company's track on said streets ; and, furthermore, to extend their said tracks from Street by double track along Street to Street ; thence along Street by double track to Street, and to connect with their track on Street, with full authority to take up all paving necessary for laying its track or tracks ; and were thereby authorized to select a suitable place for the erection of depots, stables, offices and other buildings neces- sary for conducting the business of the said railway company ; " and they shall have full authority to lay tracks along such streets as may be most convenient to reach the depots and stables of said company. And should it be necessary to cross the tracks of any other company at grade, they shall be permitted to do so by paying all expenses thereof ; provided, the consent of the Councils of the City of Philadelplua be first obtained thereto." II. That the Select and Common Councils of the said City of Philadel- phia declared their consent to the construction of the said passenger railway, as authorized to be laid out and built by the said act of incorporation men- tioned in paragraph I. of bill, by the following ordinance, approved the day of , A. D., 18 . (Here insert ordinance.) III. That on the day of , A. D. 18 , the said Select and Common Councils of the said City of Philadelphia adopted the following resolution, authorizing the Department of Highways to grant permission to plaintiff to remove the cobble pavements of the streets on which they were authorized to lay their tracks : — (Here insert resolution.) IV. That plaintiff has fully complied with all the requirements and provisions of the act of Assembly, ordinance and resolution aforesaid, and lias, in pursuance of the authority granted by said act of Assembly, and with the consent of the Select and Common Councils of said city, and by permission of the said Bureau of Highways of said city, laid and constructed a double track, inter alia, along Street, from Street to Street, and is now operating the same by running their cars thereon. "V. That upon the day of , A. D. 18 , plaintiff was noti- fied by the Chief of the Bureau of Highways to remove the tracks laid by plaintiff upon Street, between Street and Street. A copy of said notice is hereto attached, as part hereof, marked " Exhibit A." BILLS BY AND AGAINST CORPORATIONS. 265 VI. PlairitifT verily believes that the said defendants intend to remove said tracks in pursuance of said notice, and unless restrained by the injunc- tion of your honorable court will proceed to carry said notice into execution within ten days, thereby inflicting great and irreparable injury upon plaintiff. Plaintiff therefore needs equitable relief and prays : 1. That the said defendants and the agents, employees and servants of them be enjoined, specially until hearing, and perpetually thereafter, from taking up or removing the tracks, or either or any of them, of the said plaintiff, or from interfering with or molesting the same in any manner, or from doing or causing to be done any act or thing to interfere with or pre- vent the use and enjoyment, by the said plaintiff, of said track or tracks. 3. General relief. Solicitor for Plaintiff. (Insert the copy of notice as " Exhibit A.") :§ 5494. Bills Against Stockholders for Unpaid Subscriptions. Whenever an assessment is overdue, or where, by the terms of subscription, an installment is due, an action at law will lie against the delinquent. Where by reason of insolvency the assets have passed to an assignee or to a receiver, a bill in equity may be filed because the delinquent is only bound to pay such propor- tion of the unpaid stock as may be necessary to discharge -the liabilities. R. R. Co. v. Thomas, 2 Phila., Sii (1857) ; Railway Co. v. Fitter, 60 Pa. St., 12i (1869). Stockholders in State banks are liable to the noteholders of the bank, to make up the deficiency of its assets to redeem the notes. But this liability is enforced by scire facias. Act of April 16, 1850, §§ 32, 33 (P. L., 490). Frequently stockholders are liable in case of insolvency -to double the amount. A bill in equity to enforce this liability was sustained in Megargee v. Phillips et al., C. P. No. 2 of Philadelphia County, June Term, 1887, No. 874, MS. See Columbian Bank's Estate, 147 Pa. St., 422 (1892). The liability was imposed by the express terms of the bank's charter. The Act of May 11, 1874, § 1 (P. L., 135), provides that stockholders in banks and all other incorpo- rated companies doing the business of banks shall be 266 BILLS BY AND AGAINST CORPORATIONS. personally liable for all debts and deposits in their indi- vidual capacity, to double the amount of the capital stock held and owned by each : Provided, The stockholders accept the provisions of this act. 5495. Form of Bill by Assignees to Enforce Statutory Lia- bility of Stockholders in Private Corporation. In the Court of Common Pi^as, No. , fob the County of Philadelphia. In Equity. Between E. M. and P. F., Assignees of the C. Bank, Plaintiffs, and C. P., J. S. S., N. H. and J. W., Defendants. Of Term, 18 No. . To the Honorable the Judges of the said Court : The plaintiffs file this their biU against the defendants, and aver : 1. The said plaLntifiEs are assignees for the benefit of creditors of the C. Bank, by deed of assignment (dated), and recorded (here set forth record),, and file this their biU, for the benefit of all the creditors of said bank. 2. The C. Bank is a corporation created under the laws of the State of" Pennsylvania, with authority to receive deposits and make discounts, but with no authority to issue bank-notes. 3. The said bank became insolvent on (date). 4. The defendants were stockholders in the said The C. Bank at the time of the insolvency of the said bank. 5. By the charter of said bank it is provided that the stookholdei-s shall be personally liable in double the amount of stock held by them severally. The said The 0. Bank was incorporated by an act of the General As- sembly of Pennsylvania, approved ,18 (P. L., .page ), a true copy of which the plaintiffs attach hereto as part hereof, marked " Exhibit A." 6. The assignees of said bank have settled their first account, which has been referred to an auditor whose report discloses that there was in their hands distributable to creditors the sum of | , while the claims of creditors presented to said auditor amount to $ The assets not brought into the First Account and likely to be realized wiU amount to not more than $ , while there are claims outstand- ing and not yet proven which may amount to $ and upwards. The actual deficiency will be not less than % , and that sum at. least will be required in addition to all that is now in hand to pay the cred- itors. BILLS BY AND AGAINST CORPORATIONS. 26T 7. At the time of the assignment of the bank there had been nominally issued and outstanding, according to the books of the bank, shares of its stock of the par value of $ each. The holders of these shares are- liable by law for the debts of the corporation to an amount equal to double the par value of such shares. 8. The plaintiffs aver that for the proper ascertainment of the indebt- edness of the said defendants it is necessary to state an account ; that the whole of the additional liability of the stockholders wUl not be suflScient to- pay the debts of the bank, and that an assessment must be made on the stockholders to the extent of the whole of the statutory liability of the stockholders for the pui-pose of paying said debts. This can only be done as the plaintiffs are advised, in a court having equity jurisdiction and the power to state the accounts between the parties. 9. The plaintiffs are also advised and aver that proceedings by bill are more convenient and less cumbersome, by reason of the gi'eat number of persons who are interested either as debtor or creditor, and the number of accounts which will require adjustment. 10. That there has never been any issue of bank-notes by the said The C. Bank. 11. That the discovery of the several matters herein charged is mate- rial and necessary and that the same can only be obtained in a court of equity jurisdiction. 13. That the matters herein contained as to which discovery is prayed are within the knowledge of the defendants. The plaintiffs hence need equitable relief as follows : 1. Discovery of the matters pertinent to the issues involved. 2. That there may be ascertained : (a) the value of the assets of said bank ; (6) the amount of its debts and liabiUties ; (c) the amount properly assessable upon the stockholders toward the- payment of those debts. 3. That the amount so found to be payable by such stockholders may be decreed to the plaintiffs as assignees, for distribution according to law. 4. That the court may, under their powers of amendment, add to or strike from the record the names of persons by or against whom such a bill should or should not be filed, in order to enforce the equities between the- parties entitled and liable. 5. Further reUef . For Plaintiffs. (Attach Exhibit " A.") § 5496. When Stockholder can Sue Corporation. The right of a stockholder to sustain a suit founded on a right of action existing in the corporation is thus lucidly and logically stated by Mr. Justice Miller in Hawes v. Oakland, 104 U. S., 450 (1881) : 268 BILLS BY AND AGAINST COKPOEATIONS. " To enable a stockholder in a corporation to sustain in a court of equity in his own name a suit founded on a right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff, there must exist as the foundation of the suit : "Some action or threatened action of the managing board of directors or trustees of the corporation which is beyond the authority conferred on them by their charter or ■other source of organization ; " Or such a fraudulent transaction completed or con- templated by the acting managers, in connection with some other party or among themselves, or with other shareholders, as will result in a serious injury to the corpo- ration, or to the interests of the other shareholders ; " Or where the board of directors or a majority of them are acting for their own interest, 'in a manner destructive of the corporation itself, or of the rights of the other share- holders ; " Or where the majority of shareholders themselves is op- pressively and illegally pursuing a course in the name of the corporation which is in violation of the rights of the other shareholders, and which can only be restrained by the aid of a court of equity. * * * " Before the shareholder is permitted in his own name to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all the means within his reach to obtain within the corporation itself the redress of his grievances or action in conformity to his wishes. "He must make an earnest, not a simulated effort with the managing body of the corporation to induce remedial action on their part, and this must be apparent to the court. If time permits, or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reason- able to require it." Followed in Detroit v. Dean, 106 U. S., 537 (1882). BILLS BY AND AGAINST CORPOUATIONS. 269' Where the corporation is under the control of defend- ants and the circumstances show that a request to hring^ suit would be fruitless, the application need not be made. Where the directors of a corporation have been guilty of fraud in the management of its affairs, a stockholder may maintain a bill for the protection of the corporation. Watts' Appeal, 78 Pa. St., 3Y0 (1875) ; Spering's Appeal, 71 Pa. St., 24: (1872) ; Gravenstine's Appeal, 49 Pa. St., 320 (1865). § 5497. Wliat is Required in the TJ. S. Courts if Stockholder Files a Bill. The 94th Equity Eule of the Supreme Court of the United States requires that the bill against a corporation and others, founded on rights which the corporation might properly assert, must be verified by oath, must show that plaintiff was a shareholder, that the suit is not collusive, and the plaintiff must show with particularity his efforts to secure action by the dirctors, etc. § 5498. When a Stockholder can Sue Directors. For fraud, embezzlement, wilful misconduct, breach of trust, gross inattention or negligence by which fraud has been perpetrated by agents, officers or co-directors. Sper- ing's Appeal, 71 Pa. St., 11 (1872). It would seem that a director is responsible for acts clearly ultra vires. As if directors of a bank should lose its capital by building a railroad. If the acts be infra vires, then the officers can only be responsible for mala fides. Thus, the loaning of money by a bank is one of its usual powers. The discount of a note drawn and endorsed by persons in good commercial standing, who failed soon after, would not subject the directors to liability. But if the loan were really to themselves in the guise of other and irresponsible names, the act would be mala fide. % 5499. Proceedings Against Ofllcers and Shareholders of State Banks. Directors of State banks making dividends impairing '270 BILLS BY AND AGAIKST COEPOBATIONS. "the capital are jointly and severally liable in action of debt, scire facias, or bill in equity. Act April 16, 1850, § 10, Art. 12 (P. L., 483). § 5500. Suit Must be Brought in County where Bank Located. The Act of April 12, 1867, § 2 (P. L., 71), thus provides where suit is brought against officers through whose acts -fraudulent insolvency is caused. § 5501. stockholders' Liability is not Primary. Their liability is secondary and cannot be enforced until iihe assets of the bank are exhausted. Patterson v. Wyomissing Co., 40 Pa. St., 117 (1861). § 5502. Assignee Must Sue. Where bank insolvent, the assignee must sue the directors and stockholders in equity in the county where bank was located after exhausting the assets. Means' Appeal, 85 Pa. St., 75 (1877). § 5503. Form of BiU by Stockholder of Banking Company for Receiver— Injunction. In the Coitet of Common Pleas, No. , fob the City aud County op Philadelphia. Sitting in Equity. Between H. B., on behalf of himself and all other stockholders of The Banking Company who, desiring to become parties, may contribute to the expenses of this suit. Plaintiff, and The Banking Company, W. F. 8.,H. B. P.,H. S. S.,G. H. v., I. P. C, W. M., J. S. and A. M., Defendants. To the Honorable the Judges of said Court : The plaintiff complains and says : I. That the Banking Company is a corporation created under BILLS BY AND AGAINST CORPOEATIONS. 271 "the Act of the General Assembly of Pennsylvania, approved , entitled II. That plaintiff is a holder of the stock of the said corporation, to the number of fifty shares of the par value of five thousand dollars. III. That plaintiff, in , was induced to subscribe to the stock of the said corporation, by fraudulent misrepresentations made by tlie president thereof, that the paid-up cash capital of the company amounted to two hundred thousand dollars, and that, if plaintiff subscribed to the stock of the said corporation, he would receive from ten to twenty per cent, per annum on the amount of his subscription. IV. That these aforesaid representations were false and fraudulent, that instead of the paid-up cash capital amounting to two hundi-ed thou- sand dollars, the said cash capital never amounted at any time to more than seventy-three thousand dollars. V. That by means of these fraudulent representations and misstate- ments, plaintiff was led to subscribe for fifty shares, and to pay four thou- sand dollars on account of the par value of said fifty shares of stock, whereas, in fact, at the time of his subscription, said stock was not worth within a very large amount of the par value thereof. The plaintiff ascertained, in a few months after the date of his sub- scription, that said stock was, at the time of said subscription, worth from twenty to twenty-five per cent, less than its par value. VI. That the said defendants have frequently loaned large sums of money on the stock of the said corporation, thereby violating the 23d section of the Act of May 13, 1876 (P. L., 168), which directs " that no corporation * * * shall take as security for any loan or discount, a lien on any part of its capital stock, but the same surety, both in kind and amount, shall be required of persons, shareholders and not shareholders ; and no such corporation shall be the holder or purchaser of any portion of its capital or of the capital stock of any other incorporated bank, unless such purchase shall be necessary to prevent loss upon a debt previously con- tracted in good faith. * * * " And plaintiff charges that by reason of the violation of said statute, the said corporation has incurred the penalties of a forfeiture, and that a repetition of said unlawful acts would jeopard the corporate franchise and destroy the value of its stock. VII. That W. F. S. is president, and H. B. P. is cashier, of said cor- poration, and that W. F. S., G. H. V., I. P. C, W. M., J. S. and A. M. are the directors of said corporation, and that all of said persons, in their direction of the affairs of the said corporation, have been and still are guilty of such gross waste and mismanagement that the stock of said com- pany has largely depreciated in value ; and if said corporation continues its business, the amount now representing the value of its stock will be greatly jeopardized, and will eventually be wholly lost. By reason where- of, and of the aforesaid fraudulent misstatements, the plaintiff has suffered great pecuiary loss, which will be increased if said business is continued. Wherefore, plaintiff needs and prays equitable relief as follows : First.— An injunction, special till hearing, and perpetual thereafter. 272 BILLS BY AND AGAINST CORPORATIONS. restraining and enjoining the Baid defendants, the Banking Com- pany, and the said W. F. S., H. B. P., H. S. S., G. H. V., I. P. C, W. M., J. S. and A. M., officers and agents, and all others in its employ or con- nected therewith, from doing, or suffering, or permitting to be done, any business whatever as a bank or any other corporate act, and from inter- meddling with, or in any manner disposing of the books, papers, money, choses in action, assets or property of the said corporation. Second.— That a receiver be appointed by your honorable coiirt, who shall take immediate possession of the books, records, money, choses in action, and all the property of the corporation defendant of every descrip- tion, for the benefit of plaintiflE and of all other parties in interest. Third. — ^That the said defendants make full discovery of all the matters herein charged. Fourth.— ^nc\i other and further relief as to your Honors may seem meet. Solicitors pro Plaintiffs. § 5504. Form of Supplemental Bill by a Stockholder Against a Railroad Alleging Insolvency — Default on Mort- gage—Decree Already Entered in Another County. (Caption.) To the Honorable the Judges of the Court of Common Pleas for the County of Chester : A. B., the plaintiff, brings this his supplemental bill against The Eailroad Company, a body politic and corporate in the law, having its principal place of business in said County of Chester, and against C. D. and E. F. (etc., naming them), directors of said corporation, andN. L. Y., sheriff of the County of Chester, defendants. And thereupon plaintiff complains and shows : I. That on the (date) he presented to the Court of Common Pleas of Delaware County in equity his original bill against the corporation defendant above named, wherein he averred that he was a stockholder and bondholder of the corporation defendant ; thatsaid corporation was involved in debt to a considerable extent, and that two judgments were held against said cor- poration on which writs of fieri facias had been issued and levies made by the sheriffs of Delaware and Chester Counties upon all the personal property of said corporation in said counties. II. And plaintiff further avers that a sale of said property under said levies made would result to the material injury of plaintiff and others in- terested in said corporation, and he therefore prayed the said Court of Common Pleas of Delaware County in equity to restrain the sheriff of Delaware County from proceeding further with said levies, and for the appointment of a receiver, as by reference to said original bill will more fully and at large appear. And the several applications thereon made on (date) were granted by the sai^ Court of Common Pleas of Dela- ware County in equity, all which by reference to the certified copy of the BILLS BY AND AGAINST COEPOEATIONS. 273 record of said original suit in said Court of Common Pleas of Delaware County in equity filed in this iioiiorable court on the (date) wiU more fully appear. III. And plaintiff further showeth that since said proceedings, to wit, on the (date) the said corporation defendant has made default in the pay- ment of the interest coupons attached to the bonds issued under and secured by the mortgage referred to in said original bill, said coupons liaving fallen due on the said (date), and the said corporation defendant having wholly omitted and neglected to pay the same or any of .them, or any part thereof, or to provide for the payment thereof. IV. And plaintiff further shows that the amount of the bonds, the coupons of which have not been paid as aforesaid, exceeds one hundred tliousand dollars, and that the said default is the third successive default by said corporation in the payment of the coupons attached to said mortgage bonds, and tliat the said coupons, representing the interest due thereon for three successive half-years, stUl remain unpaid. V. And plaintiff charges that said corporation is otherwise indebted, and is insolvent and unable to pay its coupons already due as aforesaid, and its other debts. Tlie existing debts, other than the mortgage debt, plaintiff charges to be as follows : (a) A balance on constructive account incurred in the building and equipment of the road. (b) Considerable floating debt secured to some extent by a pledge of the said mortgage bonds as collateral thereto ; the exact amount of which said several debts, or the persons to whom the same are due, plaintiff is unable for want of information to state, and of which he prays discovery. And plaintifif charges that these various equities require the intervention and adjustment of this honorable court. Wherefore plaintiff prays : 1. That the receiver heretofore appointed by the Court of Common Pleas of Delaware County be appointed receiver by your honorable court. 3. That a decree be granted authorizing a sale of all the rolling stock, motive power, property, estate, and effects, rights, liberties and franchises of said corporation defendant freed and discharged of the lien of said mort- gage and of all other incumbrances whatsoever— said sale to be made by the said receiver appointed by your Honor for that purpose, at such time and place and under such terms and conditions and after such advertise- ment and notice thereof as this court may direct. And that the proceeds of said sale be distributed under the direction of this court. 3. And that said defendant corporation, its officers, counselors, agents and servants may be restrained, preliminary until hearing and finally thereafter, from further carrying on and conducting the business of said railroad company and from holding the custody of said motive power, rolling stock, property, estate and eflfeots of said company, and that they be enjoined to deliver over the same into the custody Ind possession of the person appointed receiver as aforesaid, and that said defendant N. L. Y., the said sheriff of said County of k;74 BILLS BY AND AGATNST COKPORATIONS. Chester, his agents and servants, be, pending this bill specially and there- after perpetually, restrained from any further proceeding with the said writs ot fieri facias now in their hands and levied upon the property, estate and effects of said corporation defendant as aforesaid, or that may hereafter be placed in the hands of him, the said N. L. Y., sheriff as aforesaid. 4. Further relief. And the plaintiff will ever pray, etc. , Solicitor for Plaintiff. Chester County, ss.: J. M. D., on oath, says that the facts stated in the foregoing bill as of his own knowledge are true, and so far as stated upon the information of others he believes them to be true. Sworn to and subscribed \ before me (date). [ J- M. D. . Notary Public. § 5505. Form of Bill by a Stockholder against Fraudulent Di- rectors to Bestrain Issuing of bonds, Creating of a Mortgage, for a Eeceiver, etc. In the Couet of Common Pleas, No. , of the Couhtt of In Eqidty. To the Honorable the Judges of the said Court : L. S. , as well for himself as such other stockholders of the Rail- way Company as, agreeing to contribute to the expenses of this suit, may become parties hereto, brings this his bill of complaint against The Company and , president, and , directors of said company, and against , and And thereupon plaintiff avers : 1. The said defendant corporation was incorporated under the provis- ions of an " Act to provide for the incorporation and regulation of certain corporations," approved the 29th day of April, A. D. 1874, and the several supplements thereto, and the charter thereof was issued by the Governor of the State of Pennsylvania on or about (date), and duly recorded in the office of the Recorder of Deeds in and for the County of Philadelphia, at Philadelphia, in Charter Book No. , page , etc., as by refer- ence thereto more fully and at large appears. 2. And the plaintiff further avers, that he is the holder and owner of twenty shares of the capital stock of said corporation defendant, upon which he has paid all lawful calls and subscriptions ; and he annexes hereto a copy of one of the said certificates of stock, which was so issued to him which copy is marked A, and is intended as an exhibit to this bill, and ^which it is prayed may be regarded as though here set forth at large. BILLS BY AND AGAINST CORPORATIONS. 275 3. And plaintiff further avers that he is Informed and believes that at a meeting of persons, alleging themselves to be the stockholders of the said •company, held on or about the day of , A. D, 18 , the said defendants personally and above-named were elected president and direct- ors of said company, and have taken upon themselves respectively the said ofEces and trusts. 4. And plaintiff further avers, that after said election of president and directors, they (the said president and directors) elected (one of the said directors), to be the secretary of the said company, at a salary of dollars per annum, which olfice he did accept, and part of which salary he has received, and he still claims to exercise the said office, and to re- ceive a salary therefor. And that they did afterwards elect the said (one of the said directors), to be the treasurer of the said company, at a salary of about dollars per annum, which office he did accept, and part of which salary he has received, and he stUl claims to exercise the said office, and to receive a salary therefor ; and did also elect ' ' super- intendent," at a salary of about dollars per annum, which office he did accept, and part of which salary he has received, and he stUl claims to exercise the said office, and to receive a salary therefor ; and did also elect "receivers," at salaries of about dollars each, per annum, which office they did accept, and part of which salaries they have received, and they still claim to exercise the said office, and to receive salaries there- for. And plaintiff avers that he is ignorant of the exact amounts of said :salaries, respectively, and he prays discovery thereof. 5. And plaintiff further avers, that the said president and directors afterwards entered into some contract [nominally, with one , who shortly afterwards assigned the same to one , and to the said , who in truth and in fact were at all times interested in said contract, and for whose benefit and account the same was made with said J, for the building of the said road, of the exact nature of which contract plaintiff is ignorant, but it was dated on or about the day of , A. D. 18 , and by its terms the said contractor was to be paid in a large amount (viz., about two hundred and fifty thousand dollars), in the stock of the said company at par, for the construction of the said railway. And plaintiff avers that in truth and in fact , one of the directors of the said company, was, and now is, interested in the said contract. 6. And plaintiff further avers, that afterwards, viz. , on or about the day of , A. D. 18 , the said president and directors entered into a new contract for, and in respect to the building of the said road, with the details of which plaintiff is ignorant, but in and by which the said directors did agree to give to the said and , in lieu of the said stock so to be given to them as aforesaid, one hundred and ninety thousand dollars, or thereabouts, of the bonds of the said company, secured by mortgage upon the estate, real and personal, and upon the franchises of said corporation. 7. And plaintiff further avers, that the said president and directors upon the day of , A. D. 18 , passed a resolution, a copy of ^which is hereto annexed, as an exhibit to this bill (marked B), and which it 276 BILLS BY AND AGAINST COEPOBATIONS. is prayed may be regarded as though here set forth at large, by which it was resolved that shares of the capital stock of said company to the value (at par) of sixty-five thousand dollars should be issued to the president and directors thereof. That the said stock had not been subscribed to or paid for, and that in pursuance of said resolution, a part thereof was assigned and transferred upon the books of said company as follows, viz. : (Here set out the distribution.) Making in all, twenty-four hundred and ten shares, so assigned and transferred. 8. And plaintiff avers, that he is informed and believes that in whole or in part the said stock (in pursuance of the combination and for the purposes hereinafter stated), has been assigned and transferred by one or more of the said directors to and among each other, but plaintiff is ignorant of the exact manner and proportions, and of the persons to whom the same was transferred, and the time when the same was so transferred, and requires discovery thereof, and that if the same has been transferred to other parties than those personally named as defendants herein, that he may have leave to make each such person, when discovered, by apt words a party hereto. 9. And plaintiff further expressly avers, that no one of the transferees of the said parties personally named as defendants paid any value for the said stock so assigned and transferred to him or them, and that the said stock so issued is held by the said transferees, for the parties to whom the same was so issued, and that so far as the same was transferred to other parties wlio were and are directors of the said company, and to aU persons who paid no actual value therefor, such issue and transfer is fraudulent and void, and that the whole of the said stock belongs of right to the said company. 10. And plaintiff further avers, that there were no lawful and proper debts due by the said company to be paid by the said stock, and that the Issue and transfer thereof by the said president and directors to themselves, was and is fraudulent and void, and that the said parties, or their trans- ferees with notice thereof, have thereby acquired no right, property or in- terest therein. 11. And plaintiff further avers, that he is informed and believes that it is pretended that the said transfer of stock was ratified and approved at a special meeting of the stockholders of the said company, held upon the day of , A. D. 18 , but plaintiff avers that no one except the said directors, and one or two of their friends, was present at the said alleged meeting of stockholders ; that no due notice of the intended holding of the said corporate meeting was given, and that the said alleged pro- ceedings of the said pretended meeting of stockholders did not and could not validate the proceedings of the said directors and the fraud aforesaid. 13. And plaintiff further avers, that the said defendants personally named have, from the time of their connection with the said company, com- bined to conduct the same for their individual profit, without regard to the rights and interests of the real stockholders therein ; that they have paid in but very little, if any, money towards the capital of the said corporation and BILLS BY AKD AGAINST COKPORATIONS. 277 are bona fide holders of but a very small portion of the stock thereof, and are about and intend to vote, or procure to be voted upon, the said shares of stock so fraudulently issued to them, at the approaching election for direct- ors, with a view to perpetuate their power, and further to consummate their frauds upon the rights and interests of the bona fide stockholders. 13. And plaintiff further avers, that the capital stock of the said com- pany by law consists of twenty thousand shares, at twenty-five dollars each ; that of the said stock there was subscribed, anterior to the granting of the charter aforesaid, about shares, of which the defendants, , each subscribed shares, and the defendant, , subscribed to shares ; and plaintiff expressly avers, that in pursuance of the said combination and arrangement, none of , the said four last-named defendants, paid, in actual money, any sum whatever, at the time of their respective subscriptions aforesaid. 14. And plaintiff is informed, believes and charges that at the time of subscription to said stoelc, or sometiine afterwards, the said defendants, , each subscribed to shares as aforesaid, and the defendant, , subscribed to said shares, and that the charter ivas issued and obtained on the faith of said subscriptions. Tliat afterwards, by some vote of the directors of said company, or in some other way, the said last- mentioned subscriptions were or are pretended to have been cancelled and released, and the said parties were released from all liability for and in respect to such subscriptions. And plaintiff avers, that such releases and cancellations were fraudulent and void, and that the said parties are respectively liable upon such sub- scriptions, and bound by lawto X3ay all snnis for installments which have or may hereafter be called and required to be paid upon the other shares of the stock of said company. 15. And plaintiff further avers, that shares of the said capital stock have been issued to the said contractors, which, it has been agreed, as above stated, is to be exchanged for bonds. Upon said stock, plaintiff is also informed and believes, the contractors have agreed not to vote at the next election. That shares of said capital stock have been trans- ferred as above stated (in pursuance of the resolution of , aforesaid), to said defendants ; and that there is held by bona fide stockholders, who have subscribed and paid therefor, in good faith, shares of said capital stock, leaving thereof undisposed of shares. 16. And plaintiff further avers, that the said defendants are about un- necessarily to use and expend the balance of the said capital stock in the making of some contract with one or more of the said directors, for the pur- chase of land and the erection of buildings, at an undue and unreasonable price. 17. And plaintiff further avers, that he is informed and believes, that within a few days past the said defendants have executed some bonds, pur- porting to be secured by a mortgage (at the same time executed) upon the property of the said company ; with the exact amount and character of which plaintiff is ignorant, but in said mortgage, as he is informed and be- lieves, and , defendants above mentioned, are named as trustees. 278 BILLS BY AND AGAINST COOPOEATIONS. And plaiiitifif further avers, that the said last-mentioned bonds have not been negotiated. 18. And plaintiff charges, that the said last-mentioned bonds, and the said mortgage, are void and fraudulent ; and that the said defendants have no right, by law, to create and issue the said bonds, or mortgage, to secure the same, and that the said bonds and mortgage should be canceled ; and if said mortgage be recorded, then that the said trustees in said mortgage named should be ordered and decreed to satisfy the same of record. And plaintiff further avers, that the said railway is nearly completed from to , and has already been, and now is in part, iu public use. 19. And plaintiff charges that the whole conduct of the president and directors of said corporation has been fraudulent and collusive, and that the whole of the stock of the said company, as well that remaining as that al- ready transferred to them, and also that which may be returned to them by the contractors, will be used and appropriated directly, or indirectly for their own benefit, and in fraud of the rights of plaintiff and the other bona fide stockholders of the said company. 30. And plaintiff charges that neither the said , nor the said , nor the said , nor can lawfully receive any salary for the performance of their duties in the several offices to which they have been elected as aforesaid ; and that any share or proportion of profits which may come to the said , by reason of his interest in the said contract, belongs of right to the said corporation ; and that the said contract of the day of , A. D. , 18 , for giving of bonds in Ueu of the stock of the said company, as aforesaid, is fraudulent and void. And that the said company cannot by law secure the payment of the said bonds by mort- gage upon the road, rolling stock and franchises of said company. That the said distribution of stock among the said president and directors is fraudu- lent and void, and that neither they nor any of the transferees with notice thereof have any right, title or interest therein ; and that the whole con- duct of the said defendants personally named in respect to the said corpo- ration, is, and has been such, as to entitle plaintiff, for himself, and the other bona fide stockholders of said corporation, to the discovery and relief herein prayed. Wherefore the plaintiff needs equitable relief and prays : (a) That it be decreed by this honorable court, that the said cannot receive any salary as officers of the said company, as aforesaid ; and, that they respectively shall repay to the said company all sums received by them respectively as such officers. (&) That it be further decreed that any profits arising to the said from the contracts aforesaid belong of right to the said company ; and that an account thereof be taken ; and that he shall be ordered and decreed to pay over the same to the said company. (a) That it be further decreed, that the transfer to the said several defendants of shares of the capital stock of the said company, in pursuance of the said resolution of the day of , A. D., , was and is fraudulent and void ; and that the said stock, whether BILLS BY AND AGAINST CORPORATIONS. 279 now held by them or by their transferees with notice, is the property of and belongs to the said company; and that the said defendants, or their said transferees and each of tliem, be ordered and decreed duly to re-assign and transfer the same to the said company. (cf) That it be further decreed, that the said contract of the day of , A. D. , is fraudulent and void, and that the said company does not by law possess the right to secure by mortgage upon their road, rolling stock and franchises, the said bonds ; and that the said company has no right, upon the facta hereinbefore stated, to charge the said company with a debt for the construction of the said railway. (e) That it be furtlier decreed, that the bonds afoi'esaid (purporting to be secured by the mortgage aforesaid, wherein and , defendants aforesaid, are named as trustees), cannot be negotiated, and that the same and the said mortgage are fraudulent and void, and that the said defendants have no right by law to create and issue tlie said bonds or mort- gage to secure the same, and tliat the said bonds and the said mortgage shall be ordered and decreed to be canceled, and if said mortgage be recorded, then that the said and , trustees, shall be ordered and decreed to satisfy the same of record and deliver it up to be cancelled. (/) That it be decreed, that the said president and directors are per- sonally liable for tlie loss and injury that has accrued to plaintiff by reason of their frauds aforesaid, and that an account be taken thereof, and that they be decreed to pay the same. (g) That it be decreed that the cancellation of the said subscriptions to the stock of said company madeby defendants, , and their release from liability therefor, is fraudulent and void, and that they are liable for all past and future lawful calls in respect thereto, and that an account of the amount due in respect thereto be taken, and that the defendants may be decreed to pay the same as due and to become due. (h) That the said defendants, , be severally restrained by the special injunction of this court, until the final hearing of this cause (and thereafter perpetually), from taking and receiving any salary by reason of their respective offices aforesaid, and that the said defendants personally named, and each of them, aud their said transferees wlien known and dis- covered, be specially enjoined from selling, pledging, using, transferring, parting with or voting upon all or any of the shares of stock so transferred to them under and in pursuance of the resolution of the board of directors of said company, passed the of , A. D. (i) That the said defendants be further restrained from making, exe- cuting or delivering any bond or mortgage, for, or in the name of, said corporation, or from issuing, negotiating, selling or parting with any bonds of said company, or in anywise contracting any debts, habilities and obliga- tions for or on account of the same, and from doing any corporate act, by means whereof the said company may be charged or be made liable, and from using, transferring or permitting to be transferred, any of the capital stock of said company not already issued. (j) That the said defendants may be restrained from doing any cor- porate act, except the giving due notice of the time and place for the elec- 280 BILLS BY AND AGAINST COKPOEATIONS. tion of directors, according to law, without the leave and permission of this honorable court, first had and obtained. (k) That a receiver be appointed by this honorable court to take and receive the books, papers and accounts of said company, and hold the same, subject to inspection at all reasonable times by the said defendants, and to take and receive the rents, revenues, tolls, issues and profits arising and to arise of and from the property of said company, and to hold the same for distribution in pursuance of such order and decree as this honorable court may hereafter make. (I) Tliat plaintiff may nave such other and further relief in the premises as to your honors sliall seem meet. And plaintiff will ever pray, etc., (Signature of plaintiff and of counsel.) (Exhibits "A" and " B " to be attached.) § 5506. Affidavit for Injunction and Receiver. (Caption.) County op , ss. : being duly sworn, doth depose and say — That he is the plaintiff named in the foregoing bill, and that the facts therein stated, so far as derived from the information of others, he verily believes to be true, and so far as within his own knowledge the same are true. That the Railway Company was duly incorporated, and char- tered as in said bill set forth. That the said corporation is now existing, and that is president, and are directors thereof. That this deponent is the owner of shares of the capital stock of said company. That the said defendants were elected such president and directors and took upon themselves the performance of their duties as such, as in said bill is alleged. That were respectively elected to the several offices, and at yearly salaries, as in said bill is alleged. That at the time of their election they were and now are directors of said company, and they now claim to exercise their said respective offices, and to receive the emoluments thereof. That some contract for the building of said road was entered into, on or about the day of , 18 , in which one was nomin- ally the contractor, really for the benefit of said and one , to whom said contract was afterwards assigned as in said bill is alleged. That by said contract, the contractor was to be paid a large amount in the stock of the company (viz. , about |250,000 of said stock, at par), and that is now interested in said contract. That some new contract was entered into about the of A. D., , as in said bill alleged, by which it was agreed that said directors should give said contractors, in lieu of said stock, $190,000 of the company's bonds, at par, secured by mortgage, as in said bill set forth. That about the of , 18 , the said president and directors passed the resolution in said bill mentioned, for the issuing of shares of said stock to the par value of |65,000. BILLS BY AND AGAINST CORPORATIONS. 281 That said stock had not been subscribed to, or paid for, and said stock was in part assigned and transferred, as is in said bill set forth. That deponent is informed and believes that said stock or part of it has been fraudulently assigned by said directors among each other. That no one of such transferees paid value for the stock so assigned, and that the transferees hold the same for the parties to whom it was so Issued, or merely exchanged the same. That there were no lawful debts of csaid company to be paid by said stock. That deponent is informed and believes that it is pretended said issue or transfer of stock was ratified as in said bill is alleged. That no one (except the said directors, and one or two of their friends) was present at said alleged meeting of stockholders. That no notice of the intended holding of said meeting was given. That said defendants personally named have combined to conduct said corporation for their individual benefit, and as in said bill is alleged. That the said capital stock consists of the number of shares which have been subscribed to, as in the said bill is set forth ; that the said respectively subscribed to the number of said shares in the bill mentioned ; but that neither of them did at the time of so subscribing pay any cash or money therefor. That eight thousand sliares of said capital stock has been issued, as in said bill is alleged, to the contractors ; which stock it has been agreed not to vote upon and to exchange for bonds, as in said bill is set forth. That the defendants are about to expend the balance of said capital, or use the same in making some contract, as in said bill is alleged. That the said defendants have fraudulently and collusively combined, as in said bill is set forth ; and tliat this deponent is informed and believes that they are about further to consummate the said fraud to the injury of the rights of this deponent and the other bona fide stockholders of said company. That the charter to said company was issued on the faith of said sub- scriptions as alleged ; that deponent is informed and believes said subscrip- tions are cancelled and released as above set forth, and that the said defend- ants pretend that they are no longer liable therefor ; that deponent does not know in what manner the said pretended releases were obtained. (Jurat.) % 5507. Form of Bill by Stockholders and Creditors Against an Insolvent Corporation for a Keceiver, etc. In the Coubt op Common Pleas, No. , for the County of Philadelphl\.. In Equity. W. H.,andJ.S., ^ Term, 18 . "• ( No. Philadelphia Company. ; To the Honorable the Judges of the said Court : The plaintiffs complain and say : 1. Such of them as are creditors of the Philadelphia Company 282 BILLS BY AJSD AGAINST COKPOKATIONS. bring this their suit on their own behalf and on behalf of all others, being- creditors of the said Philadelphia Company, who may desire or be- entitled to intervene herein. Such of them as are stockholders of the said Philadelphia Com- pany bring this their suit on their own behalf and on behalf of all others, being stoclcholders of the said Philadelphia Company, who may de- sire or be entitled to intervene herein. W. H. is a creditor of the said corporation defendant for moneys loaned to the said corporation defendant, amoimting in all to $ J. S. is a stockholder of the said corporation defendant to the amount of about $ . He is also a creditor of said corporation defendant to the amount of $ 2. The said corporation defendant is organized imder the laws of the State of Pennsylvania for the purpose of manufacturing, selling and deal- ing in . It was incorporated under the provisions of an " Act to- provide for the incorporation and regulation of certain corporations," ap- proved the twenty-ninth day of April, A. D. 1874, and the several supple- ments thereto, and the charter thereof was issued by the Governor of the State of Pennsylvania, on or about the day of , 18 , and duly recorded in the City and County of Philadelphia in Charter Book No. , page , etc. By the provisions of its incorporation the number of directors of said corporation defendant was fixed at five. Under the by-laws duly authorized by the stockholders at a meeting duly and for- mally called for that purpose, held on the day of , 18 , the board of directors was increased to nine. The amount of the capital stock of the said corporation defendant was fixed at $ , divided into five thousand shares of the par value of fifty doUara each. Of said stock shares, aggregating in value $ , have been issued, and shares, aggregating in value | , have not been issued. Under the said char- ter the said corporation defendant commenced its business of , and for the purposes of its incorporation purchased from a tract of land in the wardof the City of Philadelphia on Street , and has there erected buildings and placed machinery proper for the prosecu- tion of its business, and has carried on business there since early in the year 18 . 3. The property of said corporation defendant consists at present of the tract of land, buildings thereon erected, machinery, tools and appUances- hereinbefore referred to, aggregating in value about | . A consider- able portion of this amount is the absolute property of the corporation de- fendant. It is impossible at present to state exactly what proportion. The product is a lai-ge one. The liabilities of said corporation defendant are very large. The indebtedness consists (1) of an annual ground-rent of $ , payable in quarterly installments, the principal amount of which is $ , reserved in the deed of to , dated the day of , 18 ; (3) a mortgage for the sum of $ , given by the corporation de- fendant to the Company to secure the payment of bonds of the sum of $ each, of which bonds have been issued ; (3) bills payable aggregating ; and (4) accounts payable aggregating about BILLS BY AND AGAINST COKPOKATIONS. 283' $ . The ground-rent for the last two quarters is now due and unpaid. A large amount of the other liabilities of the corporation defendant have- matured and others are about to mature and will be payable within a very short period. These liabilities are for small amounts but to a great number of persons. 4. The corporation defendant has a number of contracts outstanding for its products which will require it to continue its business, and which, when performed, will, it is expected, yield a considerable profit. If these contracts are not performed it will be subjected to considerable loss. Its business is a valuable and increasing one, and, if maintained, will probably enable it to pay all its indebtedness. The corporation defendant is utterly unable to pay its indebtedness which has already matured, and which will from time to time shortly here- after mature. Suits have been brought upon some of said indebtedness which have matured, and if said matured indebtedness, and tliat part of said indebtedness which will shortly hereafter mature, be unpaid, judgments will be obtained and executions will issue, which will lead to the disinte- gration of tlie plant and property, and will result in the impossibility of con- ducting the operations of the corporation defendant or to pay its debts, and in a very large loss to said corporation and to its creditors. If tlie works can be held together and the plant saved from disintegration, and if the man- agement of the property can be continued, very valuable results will accrue to all interested in tlie property, both as stockholders and creditors. The erection of the buildings and machiner3' of the corporation defendant was completed early in the present year, and it has already transacted a profit- able and increasing business. If its business can be continued, in all rea- sonable probability, great benefits wiU result. If it be destroyed, and if the property be sold under executions by creditors, inequality of payment wiU result and great destruction of value must ensue. 5. The corporation defendant is at the present time insolvent. If its business be broken up, it will become largely insolvent. There is imminent danger that its property, plant and machinery will be broken up, scattered and irreparably injured by separate executions and sales, instead of being kept together to be managed and sold as a whole, as it ought to be, for the equal interest and equitable protection of all concerned. A large amount of valuable stock, supplies and other products, collected and commenced under existing contracts, is in such a condition that unless taken charge of by a receiver under the direction of the court it will be ruined and wasted. Owing to the circumstances of the case, it is absolutely necessary to any proper administration of the affairs of the corporation defendant and to a fair distribution among the parties interested therein that it shall be ad- ministered and distributed by a person appointed by and acting under the direction of the court for the protection of all parties. Unless this be done, ihose creditors of the said corporation defendant who will be unable to ob- iain judgment against it until after sales of its property under executions nd attachments upon judgments against it, which will be early obtained, ■ ill have their rights to an equitable pro rata division of the property of" ,16 said insolvent corporation inequitably endangered, delayed and defeated.. 284 BILLS BY AND AGAINST COKPORATIONS. 6. The board of directors of the said Philadelphia Company are 3)ractically powerless to continue the operation of the company for want of funds, or even to take proper care of the property and assets thereof, or to pay the taxes and ground-rent now due, or the salaries and wages of tlie clerks and employees of the defendant company necessary to carry on, trans- act and continue its business and the operation of the contracts in which it is involved. It is absolutely essential to the preservation of the assets of the company that some competent person shall be appointed to take charge of and preserve the said assets from waste and destruction. The creditors of the said Philadelphia Company are very numerous ; they reside in various counties and states ; most of their claims are for small amounts, and it would be impossible to make them all parties hereto. 7. Being without adequate remedy at law, the plaintiffs crave equitable Telief, as follows : (a) A decree that the plaintiflPs are entitled to relief in the premises ; "that the said corporation defendant is insolvent ; that the indebtedness of said corporation defendant and the liens affecting its property shall be ascer- tained and determined ; and that a sale of the premises and property of said corporation shall be had under the direction of this court. (b) An injunction against the corporation defendant, special until hear- ing and perpetual thereafter, restraining it from making or causing to be made any sale of its property or assets. (c) A decree that the proceeds of any sale made under tlie direction of "this court, afterpayment of costs and disbursements of this suit and the law- ful charges and expenses of the receiver appointed herein, may be divided among the creditors of the said corporation defendant in equity according to their respective rights. (d) A decree that a receiver be appointed by this honorable court to take possession of the lands, structures, buildings, machinery, equipment, supplies, stocks, bonds, mortgages, notes, moneys, claims, demands and all other assets, property and effects whatsoever of the corporation defendant, the Philadelphia Company, whether real or personal, legal or equi- table, and wheresoever found, with the usual powers of a receiver in equity in such cases, with power to employ labor and superintendence in preserv- ing and collecting the property and assets of the said compan}', and to make such contracts that the business may be continued, and a, result at- tained which will be to the interest of both creditors and stockholders and others interested in the property. (e) A decree that the corporation defendant, its ofificers and agents, shall cause to be forthwith delivered to the said receiver all the assets and property, real and pei-sonal, of every sort and kind belonging to it, and that the said corporation defendant and its officers and agents shall withdraw in favor of such receiver from possession thereof. (/) An injunction, special until hearing and perpetual thereafter, re- straining the corporation defendant, its directors, officers and agents, and the creditors of said corporation defendant, their agents and attorneys, from interfering with the property or affairs of the said corporation defendant the Philadelphia Company, and from making or causing to be ma<>'^ BILLS BY AND AGAINST CORPOEATIONS. i6b' any disposition thereof, other than to preserve the same and to deliver th& same to the receiver. (g) General rehef . (Signatures of plaintiffs and solicitor.) State of Pennsylvania, City of Philadelphia, W. H. and J. S., being duly sworn, depose and say that the facts set forth in the foregoing bill of complaint are true so far as they are stated as of their own knowledge, and that so far as they are stated on the informa- tion of others they are true to the best of their knowledge and belief. Sworn to and subscribed before me tills day of 18 \ [seal.] Notary Public. g 5508. Form of Bill by a Member of an Incorporated Benefloial Association for a Receiver, etc., on the Ground of Insolvency. In the Court of Common Pleas, No. County of Philadelphia. In Equity. H. M. I., L. A. Y. and J. C. W., on behalf of themselves and all other members interested herein who shall come in and contribute to the expenses of this suit and be made parties hereto. Plaintiffs, V. The Order of ; J. C, Su- preme President; M. E. S., !- Of Supreme Secretary ; M. B. , Supreme Treasurer : J. R., L. M. C, J. H. H. and Others, Supreme Trustees of the Order of , and the said J. R. C, J. F. E., M. E. S. and Others, Supreme Executive Committee of said Order of , Defendants. J '.Vo the Honorable the Judges of the said Court : The plaintiflfs complain and say : 1. That they are members in good standing of FOB THE City and Term, 1894. No. Lodge, No. 286 BILLS BY AND AGAINST COEPOEATIONS. ■of the Order of , which subordinate lodge is located in the City of Philadelphia, State of Pennsylvania, and that they have each a relief fund certificate in said order for $1,000. 2. That the said Order of is a corporation incorporated , 1885, under the laws of the State of Pennsylvania, and that a copy of its charter or articles of association, constitution, by-laws and general laws of the supreme and subordinate lodges thereof, are hereto appended and marked " Exhibit A," which plaintiffs ask may be made part of this biU. 3. That by article 1, section 1, of the constitution of the supreme lodge hereinbefore mentioned, said Supreme Lodge of the Order of has power to make its own constitution, laws, rules of discipline and the con- stitution and general laws for the government of the whole order, and by virtue of the said power did make the constitution, general laws, by-laws and rules of discipline for grand and subordinate lodges hereinbefore men- tioned and hereto appended as " Exhibit A." 3. That by section 1, of the general laws of the said supreme lodge it is provided as follows ; ' ' There shall be connected with this order a relief fund, divided into five classes, from which each beneficiary member between the ages of 18 and 60 years shall be entitled to draw a sum not exceeding, as each may severally elect, either in the sum of one thousand dollars, eight hundred dollars, six hundred dollars, four hundred dollars or two hundred dollars, •on which each shall pay the rates prescribed in the following table, viz.: (Table of rates and benefits.) ' ' Each member shall pay to the secretary, upon notice, the amount prescribed in tlie foregoing table on account of the i-elief fund, and the same amount on each assessment thereafter while his or her certificate remains in force." 5. That prior to , 1891, the membership of said Order of exceeded eight thousand persons, and up to that time, when eight thousand or thereabouts relief certificates of $1,000 each were paid in full, the assessments made on certificates of §1,000 never exceeded the sum of $2.50 per month. 6. That the plaintifli, H. M. I., became a member of the said order on or about the day of , 1887 ; the plaintiff, L. A. Y., joined on or about , 1888, and J. C. W., for a second time, on day of , 1889. Copies of relief fund certificates held by plaintiffs are an- nexed and made part hereof, and marked " Exhibit B." 7. That at the time plaintiffs became members of the said order it was with the distinct understanding on their several parts that the assessment of $2.50 necessary to a certificate of $1,000 was $3.50 per month, as had been paid by the holders of certificates prior to that time ; that subse- quently, however, and after , 1891, said assessments were increased to three assessments every two months, and a little later to two assessments of $2.50 each month, and recently they have been increased to three assess- ments each of the same amount per month. 8. That on , 1894, without previous notice or precedent, the supreme executive committee gave notice to plaintiffs that they had caUed BILLS BY AND AGAINST COKPOKATIONS. 28T "what they styled debit assessments, amounting to $525 in one call, which they had subdivided into 310 assessments, upon all certificates issued prior to , 1893, and maturing after , 1894, which would include that of each of plaintiffs. Said debit assessments were numbered from 1 to 210 inclusive, each for the sum of $2.50, but due in one sum, whereby the amount claimed to be payable on the relief fund certificate held by each of plaintiffs became $525, and thus reduced the value of the certificate at its maturity from $1,000 to $475 ; a copy of this notice is hereunto annexed, and made part hereof, marked " Exhibit C." 9. That accompanying said circular there was also sent to each of plaintiffs the call for debit assessments Nos. 1 to 210 inclusive, notifying plaintiffs that the supreme executive committee had called debit assess- ments Nos. 1 to 210 inclusive ; that the amount payable on each assessment was now due on each rehef fund certificate held by plaintiffs ; that plaint- iffs had the option of paying the amount of said debit assessments on or before , 1894, or of having them charged against the relief fund cer- tificates upon which they were due, and that, if they were unpaid on the last-named date, the amount, viz., $525, in each case would be properly charged against each certificate. This call bore the printed seal of the ^rand lodge, the name of S. C. A., the secretary of the subordinate lodge to which plaintiffs belong, and the seal thereof. A copy of the same is here- Tinto annexed and made part of this biU, and is marked " Exhibit D." 10. That plaintiffs are advised and believe that there is no warrant in the charter, constitution, general laws or by-laws of the said Order of by which the supreme executive committee or the Supreme Lodge of the said Order of can create or call for said debit assessment or assessments, and that the same was assessed and called for by said supreme executive committee during the recess of the grand lodge, for the purpose of reducing the value of said certificates of plaintiffs and others, members of said order at the time of their maturity, and in this manner to reduce the obligations of the said Order of , and thereby to force out of the order a large number of members who will not submit to said assessment, and wiU be thereby compelled to forfeit the money that they have already contributed, and thus increase the assets of the corporation for the benefit of those who remain in it. 11. That plaintiffs are informed and believe and aver that the obliga- tions of the said corporation at the present time amount to a large sum of money, and will in , 1895, amount to a sum of not less than $7,500,- 000, and that the assets of the said corporation would not realize more than $3,000,000, and that the said debit assessments were issued for the purpose of making up the difference between these amounts and thus maintaining an apparent solvency of the order, when as a fact it cannot meet its present obligations. That there are at present about 16,000 members of the said order, and that a debit assessment of $525 on each certificate of $1,000 would about make up the deficiency if the same were coUectible. 13. That on or about , 1893, the supreme lodge adopted the fol- lowing amendment to the general laws of the supreme lodge, law 1, sec- tion 2. 288 BELLS BY AND AGAINST CORPORATIONS. " Each member shall pay to the secretary upon notice the amount pre- scribed in the foregoing table on account of the relief fund, and the same amount on each assessment thereafter while his or her certificate remains in force, provided that not more than eighteen assessments per year shall be called during the first two years from the date of each certificate here- after to be issued." That by virtue of the foregoing amendment, all members to whom cer- tificates have been issued subsequent to , 1893, are free from the said debit assessment and are not called upon to pay the same, nor is such assessment charged against their certificates ; whereby an illegal and unfair discrimination is made in favor of said members joining subsequent to 1893, called junior members, and against plaintiffs and othera holding certificates issued prior to the said date. Such discrimination plaintiffs are advised, and so charge, is contrary to the charter and constitu- tions of the order and to the representations made to plaintiffs whereby plaintiffs and others became members of the order. Plaintiffs therefore need equitable relief and pray : 1. That the court will declare the levying and attempted collection of the said debit assessments Nos. 1 to 210 to be illegal. 2. That an injunction may issue, preliminary until final hearing and perpetual thereafter, enjoining and restraining the said defendants and every of them their several servants or agents from charging against or collecting out of the proceeds of the relief fund certificates the amount of said debit assessments. 3. That the business of the corporation defendant within this Common- wealth shall be wound up and its property realized and distributed among the persons who have contributed to the same and are legally entitled thereto. 4. That a receiver be appointed to collect and distribute the assets under the direction of the court. 5. Such other and further relief as to your honorable court may seem meet and proper in the premises. Solicitors for Plaintiffs. Attach Exhibits "A," "B," "C," and " D." BILLS BY AND AGAINST COEPOEATIONS. 289 6509. Form of Bill in United States Court by a Stockholder to Set Aside a Lease Made by a Bailroad Company Ultra Vires. In the CiBcrDiT Court op the United States eob the Third Cik- cuiT, Sitting et the Eastern District op Pennsylvania. In Equity. W. R., a citizen of the State of Pennsylvania, on behalf of him- self and of all other stock- holders in the C. & A. Railroad Company, who, contributing to the expenses hereof, may be- come parties to the suit, Plaint- V. The Railroad Company, a corporation and body politic created under the laws of the State of New Jersey, and having its principal place of business at (place) in said State of New Jer- sey, and the C. & A. Railroad Company, also a corporation and body politic, created under the laws of the State of New Jersey, and having its principal place of business at (place) in said State of New Jersey, Defendants, Sessions 18 No. To the Honorable the Judges of the said Court : Your orator complains and says : First. — Tour orator is a citizen of the State of Pennsylvania. Seemed. — That the defendant, the Company, was incorporated by an act of the Legislature of the State of New Jersey, approved on the day of , A. D. , with certain powers and privileges therein expressed, and, among others, with authority to survey, lay out and construct a railroad from some suitable point at or near in the County of Atlantic, to , in said county. The other defendant, the said C. & A. Railroad Company, was incor- porated by an act of the Legislature of the State of New Jersey, approved on the day of ,with certain powers therein expressed, and among others with authority to survey, lay out and construct a railroad from the City of to in said State. 19 290 BILLS BY ASTD AGAINST CORPORATIONS. Both of said corporations defendant have their principal places of business in the said State of New Jersey. Third. — That your orator is now and since the year 1874 has been the owner and in possession of shares of the capital stock of the said C. & A. Railroad Company, one of the defendants aforesaid. Fourth. — Tliat without any lawful power, and contrary to law, the said The Railroad Company and the said The C. & A. Railroad Company did, on the day of , enter into and execute an agreement in writing, under their respective corporate seals duly attested under and by virtue of which it was agreed that the said Railroad Company would build said line of railroad from to and com- plete the same before the day of , the specifications for con- struction of said road to be first submitted to and approved by the presi- dent of the C. & A. Railroad Company ; and it was further agreed, that the said Railroad Company would lease the said railroad to the C. & A. Railroad Company for the term of nine hundred and ninety-nine years, the said C. & A. Railroad Company to pay therefor the annual sum of $ each and every year for the first five years, and tlie sum of $ annu- ally for the residue of said term, and to pay the annual taxes of the said The Railroad Company. A copy of said agreement is hereto at- tached and made part hereof, marked " Exhibit A." Fifth. — That by indenture, bearing date the day of , the said The Railroad Company, for the consideration thei'ein expressed and without any lawful power and authority, leased their said railroad for the term of nine hundred and ninety-nine years unto the said The C. & A. Railroad Company. Sixth. — That the said parties to the said indenture of lease omitted to acknowledge or prove and record the said lease in the office of the Secretary of the State of New Jersey as is required by the Act of the Legislature of said State, approved April 4th, A. D. 1871. Seventh. — In order, therefore, to avoid any dangers which might have arisen by reason of the omission to comply with said statute, the said par- ties thereto, to confirm the same and to grant and demise the same property and franchises for a like term and consideration, unlawfully executed under their respective corporate seals, on the day of , A. D. , a second indenture of lease, which said lease was acknowledged and proven before one of the masters in chancery of the State of New Jersey, and recorded in the office of the Secretary of said State on the day of , A. D. , in Book of Corporations, pages , a true copy whereof as part hereof is hereto attached, marked " Exhibit B." Eighth. — Your orator charges that the said C. & A. Railroad Com- pany had no power or authority either to agree with the said The Railroad Company to lease the railroad of the said The Railroad Company or to lease the said road ; nor had the said Rail- road Company power to enter into and execute said lease to the said C. & A. Hailroad Company, and, therefoi-e, tliat the pretended execution of the said lease to the said C. & A. Railroad Company was ultra vires. Your orator charges that the said lease is utterly invalid and void. BILLS BY AND AGAINST CORPORATIONS. 291 Ninth. — Your orator charges said pretended lease was never submitted to the stockholders of either of said corporations and was never ratified by them. Tenth. — Your orator charges said pretended lease was never of the slightest benefit or advantage to the C. & A. Railroad Company, and on the contrary thereof, has always been and now is a source of great loss and damage to said corporation and stockholders. Eleventh.— Your orator has always denied the validity of said lease, and has opposed the exercise by said defendants of the powers granted or claimed to be granted by it. Your orator, therefore, submits that the action of the said corporations in the premises, being beyond the scope of the powers conferred upon them, sliould be set aside, and the said lease be declared to be void and of none effect. Wherefore your orator needs equitable relief and prays : I. That the said lease of the railroad of The Railroad Company to the C. & A. Railroad Company be declared null and void. II. That an injunction be issued, preliminary until hearing and final thereafter, directed to the said C. & A. Railroad Company, its officers and agents, commanding them to withdraw from the possession of the railroad and property of the said Railroad Coinpany and deliver possession of tlie same to the said Railroad Company, its officers and agents. III. That pending this bill the said corporations defendant, and each of them and their officers, agents and servants, and every of them, be speci- ally, and that upon final hearing they be perpetually enjoined and re- strained from continuing to operate under said pretended lease, from pay- ing any rent, or observing any of the covenants in said pretended lease mentioned, or in any manner observing the same. IV. Such other relief as to your honorable court shall seem meet and proper. (Signatures of counsel,) Solicitors pro Plaintiff. City and County of Philadelphia, ss. .- "W. R., the plaintiff in the above bill, having been duly sworn according to law, doth depose and say that the facts set forth in the above bill, so far as stated as upon his own knowledge, are true, and so far as stated upon information he believes the same to be true. Sworn to and subscribed before me, (date). (A copy of the agreement and lease should be attached as Exhibits "A"and"B.") 292 BILLS BY AND AGAINST COKPORATIONS. {For Cover.) In the Circuit Court of teos United States for the Third Cir- cuit Sitting in the Eastern District op Pennsylvania. W. E., on behalf of himself and others, who, contributing to the expenses hereof, may become parties to this suit, V. The Company and the C. & A. Railroad Company. J Sessions 18 No. Bill in Equity. (Signatures of counsel,) Solicitors pro Plaintiff. 5510. Form ofBill by a Stockholder Against the Corporatiott and its Directors, for Fraud, etc. In the Court of Common Pleas, No. Philadelphia. In Equity. , of the County of Between ") A. B., of the County of Philadel- j phia, for himself, and all other stockholders in the C. D. Com- pany who, being interested in the subject-matter of this com- plaint, shall become parties hereto and contribute to the expenses of this suit. Plaint- iff, and C. D. Company and (here set forth names of ofEcers and their respective titles and the names of the directors of said company), Defendants. To the Honorable the Judges of the said Court : The plaintiff complains and says : 1. That on the day of 18 , the C. D. Company was duly incorporated for the purpose of . A copy of the charter of said company is hereto attached and made part hereof, marked " Exhibit A." 2. That the plaintiff is the holder of shares of the common stock of said company and shares of the preferred stock of said company. 3. That on the day of 18 , the following officers of BILLS BY AND AGAINST COltPOKATlONS. 293 said corporation were elected, viz.: (here set forth officers with their titles), to serve for the ensuing year. 4. The directors of said corporation are (here set forth names of direct- ors), who were elected on the day of 18 , to serve for the period of years, and during their incumbency have been guilty of fraud, gross neglect and inattention, palpa,ble breach of trust, wilfuU and fraudu- lent mismanagement and malfeasance in the control of the affairs, interests and transactions of said corporation in this, to wit : that the said directors have fraudulently loaned the money of the said corporation, amounting in all to the sum of dollars, at divers times to themselves, and for their own use, on worthless securities for personal gain, aggrandizement and benefit and in fraud of your plaintiff's rights. 5. That on the day of 18 , the said directors fraudu- lently organized and incorporated another company called the Com- pany, for the purpose of , and in which company the said directors aforesaid are the only stockholders, and to the said Company the said directors loaned the moneys of C. D. Company, viz. : the sum of dollars, without any security whatever, and in fraud of said plaintiff's rights. 6. That on the day of 18 , the aforesaid directors of defendant corporation wilfully, fraudulently, unlawfully and without authority in the charter of said defendant corporation, or any authority whatsoever, subscribed dollars for shares of stock in the Eailroad Company, a corporation under the laws of Pennsyl- vania, and which said railroad is insolvent ; said purchase being for the purpose of (here set forth the facts and reasons). 7. And the plaintiff avers the said directors have refused to account for the said moneys thus misappropriated, and improperly, fraudulently and unlawfully used, though requested so to do by said plaintiff. 8. That on the day of 18 , the said plaintiff duly notified the said corporation of the facts aforesaid, and requested it to bring suit against the said directors, but this it has refused to do. 9. That the said (officers) have connived and assisted the said (direc- tors) in the commission of the fraud hereinbefore charged. Your said plaintiff has no adequate remedy at law and therefore prays : 1. For an injunction, preliminary until hearing and final thereafter, enjoining and restraining the said corporation and the officers and directors thereof from disposing of the assets of said defendant corporation. 2. That the said purchase of stock by Company from Eailroad Company be declared ultra vires, and null and void. 3. That the said directors individually account for and pay to all moneys loaned by them without authority of law. 4. That a receiver be appointed to take charge of the assets and prop- erty of the said company. 5. General reHef. And the plaintiff will ever pray, etc. X. Z., Solicitor pro Plaintiff. 294 BILLS BY AND AGAIXST GOltPOEATIONS. § 5511. Directors are not Kespousible for even Gross Mis- takes if Honest and within the Scope of their Powers. Directors in a stock corporation, as to the stockholders, are not technical trustees, but are as mandatories, and are. required only to apply ordinary skill and diligence. They are not liable for mistakes of judgment, although so gross as to appear absurd, if honest and within the scope of their powers ; especially where acting under direc- tion of counsel. But they are responsible to the stodkholders for losses from fraud, embezzlement, wilfuU misconduct, breach of trust ; gross inattention or negligence, by which fraud has been perpetrated, by agents, officers or co-directors. The responsibilities of directors in a stock corporation are con- sidered in Spering's Appeal, 71 Pa. St., 11 (1872). § 5512. Directors are not Responsible for Loss from Building Saw-mills and Hotel where the Charter gave Power to Develop the Land, etc. Where a corporation owning a very large body of lands had power by its charter ' ' to aid in the development of minerals and other materials, and to promote the clearing and settlement of the country," it was held, That the building of saw-mills and an hotel to accommodate those having business in connection with carrying out the prime object of the corporation was within its powers. When an act of directors exceeds their authority, but is done with a bona fide intent of benefiting the corpora- tion, and a shareholder, knowing of it, does not dissent within a reasonable time, his assent will be presumed. Omission to proceed for six years is a bar to an action against directors for the mis-use of the corporate property. Watts' Appeal, 78 Pa. St., 370 (1875). § 5513. Bills by Stockholders to Collect Dividends. The rights of stockholders to sue in this and in other cases are discussed in the Chapter on " Parties." BILLS BY AND AGAINST COEPOEATIONS. 295 § 5514. Form of Bill by Stockholders for a Dividend Declared. In the Cotirt of Common Pleas, No. , fob the City am) County OP PHHjADELPHIA. In Equity. S. D. ) vs. \. Term, 1893. No. The Company. ) To the Honorable the Judges of the said Court : The plaintiff complains and says : I. That the Company, the defendant, was duly incorporated on the day of 1884, for the purpose of II. That since that date the said defendant has been and still is engaged in said business in the City of III. That at the time of the incorporation of the said defendant com- pany the capital stock thereof consisted of five thousand shares of the par value of $100 each. On 1889, the said corporation claimed that plaintiff was indebted to it in the sum of , and the defendant received from plaintiff on that date in payment of said claim shares of the capital stock of said corporation then standing in the name of plaintiff, at the valuation of , discharging the defendant's claim against plaintiff and leaving a balance due to him. IV. That on 1890, the directors of the said corporation defend- ant declared a dividend to the stockholders of the said company of shares of the capital stock of the said company. A copy of the resolution adopted at said meeting declaring said dividend is hereto annexed as part hereof, marked " Exhibit A." By reason of the purchase by said company of said shares from plaintiff the number of shares in said company actually outstanding at the date said dividend was declared as aforesaid was therefore V. That of said last-mentioned number of shares plaintiff was, at the time said dividend was declared, the owner of fifteen hundred shares. VI. That said dividend of shares so declared as aforesaid, according to the resolution aforesaid, entitled plaintiff to demand and re- ceive from the said defendant as his proportion of said dividend shares. VII. That said dividend was payable to said stockholders on demand. The plaintiff has frequently, before the filing of this bill, demanded of the defendant corporation a certificate for said stock dividend due to him by defendant of said shares, but the defendant has wrongfully and unjustly refused, and still does wrongfuUy and unjustly refuse, to issue to plaintiff said certificate. Since the date of said stock dividend the defend- ant has declared cash dividends. The plaintiff has demanded the same on said shares of stock declared as dividend aforesaid, but said defendant has 296 BILLS BY AND AGAINST CORPORATIONS. wrongfully and unjustly refused, and still does wrongfully and unjustly refuse, to pay the same, or any part thereof. VIII. That plaintiff has no adequate remedy at law, and he prays your Honors : 1. For an injunction, preliminary until hearing and perpetual there- after, enjoining and restraining the said defendant, the Company, its officers and agents, from issuing the stock due to plaintiff, and from paying said dividend so due plaintiff, or any part of said stock or said divi- dend, to any person other than plaintiff. 2. That the said defendant be ordered and decreed to issue to plaintiff a certificate for the said shares so due to him as aforesaid. 3. That the said defendant be ordered and decreed to pay to plaintiff the dividends declared upon the said shares since 1890. 4. General relief. Plaintiff. Solicitors for Plaintiff. (Attach copy of resolution of directors of the Company as "Exhibit A.") § 5515. Bill by a Stockholder or a Member Against Corpora- tion to Restrain Hurtful Acts, or Acts TJltra Vires. As a corporation is only a chartered partnership, with riglits and liabilities defined by law, it would seem that a stockholder can invoke the aid of a court of equity exactly as a partner can enjoin a majority of the firm from wreck- ing its capital by wild and dangerous experiments. Where the act complained of is ultra vires, the right of complaint is the stronger because the act may lead to a forfeiture of the charter. Thus it was decided in Manderson v. The Commercial Bank, 28 Pa. St., 379 (1857), that where the president and cashier of a bank were discounting paper without the con- currence of the requisite number of directors, as provided by the act of incorporation of the bank, and at a rate of discount greater than the charter allowed, a stockholder was entitled to an injunction restraining such acts. A corporation cannot sell or assign its corporate powers without express authority. Stewart's Appeal, 56 Pa. St., 413 (1867). BILLS BY AKD AGAINST CORPORATIONS. 297 ;§ 5516. Bill by Stockliolders Praying Court to Supervise an Approaching Election. On the eve of a charter election there is sometimes dis- covered the necessity for invoking the aid of a court of equity, otherwise a party in power could so illegally con- duct the election as to retain possession. The remedy by quo tvarranto might require over a year to oust the wrong- doers. Another election would perpetuate them in office. To prevent this, a court of equity may properly be asked to conduct or supervise the election, and to install the ■officers-elect. Thus, in Tunis v. R. R. Co., 149 Pa. St., YO (1892), where it appeared that by means of fraud, violence or other illegal conduct on the part of the corporators a fair and honest election could not be held, the court appointed -a master. The same practice was followed in Anderson v. EUonhead, 26 W. N., 95 (1890). § 5517. Form of Bill for Appointment of Master to Supervise Corporate Election in a Case of Illegal Voting. In the Coctet of Common Pleas of Philadelphia County, No. In Equity, C. P., S. B., and F. M. , Plaintiffs, V. C. R, W. G., C. [ Term, 18 . No. S. and " The for the Insuring of Hotises from Loss by Fire," Defendants. To the Honorable the Judges of the said Court : The plaintiffs complain and say : I. That they are members and contributors of a corporation known a.s " The for the Insuring of Houses from Loss by Fire." n. That the said association was originally formed and adopted by certain articles of agreement, bearing date the day of , and the object of said association, according to the^ said articles of agreement, was " the insurance of houses from loss by fire." III. That the said association was subsequently incorporated and anade a body poUtic in law by the General Assembly and Proprietaries of 298 BILLS BY AND AGAINST CORPORATIONS. the Province of Pennsylvania, copies of which deed of settlement andl charter are hereto appended, marked "Exhibits A and B," respectively, and made part hereof as if fully recited herein. IV. That by said charter it is, inter alia, provided as follows : " That there shall be a general meeting of the contributors aforesaid on the Monday in every year, or oftener, * * * when and where all the said contributors shall have full right and liberty to be present and be capable of action and managing the affairs of the said society that shall then come before them. * * * At all which meetings the determination of a majority of the contributors present shall be conclu- sive and binding on the whole society." V. It is further provided in said charter as follows : " That at the said general meeting in the month of and yearly every year, the said contributors who shall be present shall choose, by tickets in writing, twelve persons out of their own body to be the directors, and one other person to be treasm-er, for the ensuing year, and that the said election shall begin on the said Monday in and be con- tinued by adjournment if necessary from day to day until aU contributors- who shall attend shall have voted, and that the directors of the preceding year shall appoint two of their own body, with three other contributors who are not directors, to be judges of the election, who shall, under their hands, or the hands of a major part of them, report the names of the persons duly elected directors and treasurer respectively for the ensuing year to the general meeting." VI. That in pursuance to such authority the present directors of the said corporation did on the day of 18 , appoint out of their own body , and out of the contributors, , to be judges of the next ensuing election ; and did further give public notice that said election would be held at the office of the corporation. No. Street, in the City of Philadelphia (which is the chief place of business of said cor- poration), on the day of 18 , and did further give public notice that the polls would remain open between the houre of and P. M., for the purposes of such election. VII. That the said judges are the respondents in this case. VIII. That at said election there were two tickets for which ballots were cast, the first being as follows : Directors, ; treasurer, The following was the second ticket : Directors ; treas- urer, IX. That on said date and at said place, and at the hour of P. M. , the contributors met, and the judges of said election being duly sworn and affirmed in accordance with the acts of Assembly in such case made and pro- vided, the election was proceeded with. All who were present and who de- sired to vote were given the opportunity to vote. When the hour of p. m. had arrived at which time the polls were to have been closed, the contributors present by formal ballot resolved unanimously that the doors should be closed and that those then present in the building should be allowed to cast their votes, and that for this purpose the polls should remain open until they had done so. Agreeably to this resolution the polls were kept open BILLS BY AND AGAINST CORPORATIONS. 299 until nearly five o'clock, and until every one present who desired to vote had been given an opportunity to do so. Before the balloting was closed one of the judges, , asked if any one was present who desired to vote, and no one responded. Thereupon the ballot-box was closed and the contributors adjourned. X. That notwithstanding said provisions in the charter and deed of settlement, that those who were present should vote, ballots were offered to the judges in behalf of ticket No. 2, not by the members or contributors, but by persons unknown to plaintiffs who claimed the right to vote by alleged proxies ; that plaintiffs protested against the admission of such proxy votes, for the reason that they are advised and believe, and submit to the court, that the right to vote by proxy is not permitted by the law of this corporation, but such right is expressly denied. Notwithstanding plaintiffs protested the judge accepted as valid votes for ticket No. 3, the said votes by proxy, and have announced their determination to count them. XI. That , tlie president of the Companjr offered one single written ballot in behalf of that corporation. That his authority as president to cast said ballot was not in any manner shown. That he insisted tliat the said single written ballot should be counted times,. claiming the right to vote as many votes as said company held policies. That plaintiffs protested against such votes, but notwithstanding said protest the judges accepted said single written ballot and have announced their decision to count it times for ticket No. 2. That in addition to said vote many similar votes for ticket No. 2 were offered by alleged executors, trustees, guardians and corporations in a fiduciary capacity, without any power of attorney to cast such vote, and although cast in u, single ballot were offered for as many votes as said persons or institutions held policies of this company. Tliat the said judges, notwithstanding plaintiffs' protests, have accepted said votes and propose to count the single written ballots thus illegally cast more than once. XII. Plaintiffs are advised and submit to the court that eacli member present is entitled, under the laws of this corporation, to one single vote, and no more, irrespective of the number of policies he may hold. That plaintiffs believe and so aver that a majority of the members present cast their ballots for ticket No. 1, and that therefore as a result of such election plaintiffs have been elected as directors of said corporation and said as treasurer of said corporation. Plaintiffs aver, however, that if the ballots thus illegally cast by proxy and by persons in a fiduciary capacity are counted, and if the said ballots are counted more than once, as said judges have decided, that plaintiffs will be unlawfully deprived of the offices to which they have been elected. XIII. That at the conclusion of said election as aforesaid the judges announced that notwithstanding the resolution of the contributors and the previous public notice of the election, that they would continue to hold said election on the day of , beginning at the hour of p. M. That the said judges, therefore, have refused to count the ballots that were cast, or to announce the result of the election, but have threat- 500 BILLS BY AND AGATNST COKPOEATIONS. •ened to hold, and are about to hold, an illegal election for the purpose ■of enabling other Ulegal ballots to be cast ; the purpose of said action being to elect ticket No. 3, with which the judges are in sympathy. It will be further seen that a portion of said judges are candidates upon ticket No. 2, and are attempting, therefore, to cast for themselves these illegal ballots and to adjourn the election to enable themselves to secure sufficient votes for their own electiou. XIV. That such election and such votes are illegal, and the result will be, if permitted, to put in office the candidates named iu ticket No. 2, who have not been elected according to the charter, but who have been defeated, and furthermore, to deprive plaintiffs of the offices to which they have been elected, and the contributors of the persons of their choice ; that by such action great and irreparable damage will be done to plaintiffs and the corporation, for which no adequate remedy exists at law. XV. That at the election held on the day of 18 , the judges of said election, in receiving the ballots against the protests of the plaintiffs, deposited the same in the ballot box without any mark or writing, or with- out otherwise indicating who cast the said ballots or that they had been challenged. The failure of the said judges to mark the said ballots has made it impossible to determine by an inspection of said box or a count of said ballots in what manner or by whom or for what tickets the ballots were cast. XVI. That an examination of the ballots so cast would not enable the court to determine who were lawfully elected directors or to separate the lawful from the unlawful ballots, and it is therefore necessary, in order that Tight and justice be done in the premises, that said election, so improperly conducted, be declared null and void, and that a new election be held at such time and place as your honorable court may direct. XVII. That at such new election plaintiffs are advised and believe and so charge that questions of grave doubt will inevitably arise as to the legality of ballots tendered by persons holding proxies or who stand in a fiduciary position to the contributors, as well as other complicated questions of law and fact pertaining to the conduct of the election, and that unless said meeting and election are supervised by your honorable court the judges may receive the said illegal and objectionable ballots in the same manner as at the previous election, the receipt of which would work great injury to plaintiffs and deprive them of their rights in the premises and make it im- possible for your honorable court to arrive at any just and equitable de- termination of the result of such election. That without such supervision the election will inevitably result in prolonged litigation which will be detrimental to the best interests of the corporation and all its stockholders. It is necessary, therefore, to prevent such injury to the interests of all parties to this suit, that your honorable court should supervise said election in accordance with the equity powers vested in it. Plaintiffs therefore pray : 1. That the said judges be enjoined from counting any votes that were not cast by a member present, or that were cast by persons claiming BILLS BY AND AGAINST CORPORATIONS. 301 to vote by proxy or otherwise than in propria persoiia, or by persons claim- ing to stand in a fiduciary capacity to such contributors. 2. That the judges be further enjoined from counting any written; ballot more than once, and from counting the vote of any contributor as- many times as he may have policies. 3. That the election held on ,18 , be declared to be niill and void. 4. That a new election be ordered, to be held at such time and place- as your honorable court may direct, for the purpose of electing dh-ectors and a treasurer. 5. That a master be appointed to preside at said meeting during its session and to supervise said election for treasurer and directors and make report thereof to your honorable court. 6. General relief. (Affidavit of one of the plaintiffs, and signatures of the counsel for- plaintiffs.) See Act of April 29, 1874 ; §§8, 9 (P. L., T8) ; Act of April 25, 18Y6, § 1 (P. L., 47) ; Act of May 7, 1SS9, §§ 1,2 (P. L., 102). Comm. y. Dalzell, 152 Pa. St., 217 (1893) ;, Comm. V. Patterson, 158 Pa. St. 476 (1893) ; Shelmerdine V. Welsh, 47 Leg. Int., 286 (1890). § 5518. Form of Bill for Appointment of Master to Supervise Corporate Election in case of Praud and Appre- hended Violence. In the Cotibt of Common Pleas, No. , for the County of Philadelphia. T. B. (name all the plaintiffs), V. The H. Railroad Company (name all other defendants). In Equity. Term, 1894. No. To the Honorable the Judges of said Court : Plaintiffs complain and say : 1. That they are holders duly registered upon the books of the H. Railroad Company of upwards of shares of stock and are entitled to vote at all elections held by said stockholders. 2 The H. Railroad Company is a corporation chartered by a special act of the General Assembly of the Commonwealth of Pennsylvania, approved the day of , 18 , entitled . ^. .^ ^ . ^ The capital stock of said corporation is | , divided into shares of the par value of dollars each. 302 BILLS BY AND AGAINST COUPOEATIONS. The said corporation owns and controls passenger railways in the City of Philadelphia, embracing over miles of line, and transacts a pas- senger railway business amounting to over $ annually. 3. The principal office of the said H. Railroad Company is in the City of Philadelphia, where it has been located for many years past. 4. The section of the said Act of 18 , incorporating the said H. Eaih'oad Company, provides that said company shall have power to elect a president and directors, and in every election of officers, each share of stock shall entitle the holder to one vote. 5. The said annual meeting of the H. Railroad Company (time of meet- ing) is attended in person and by proxy by the holders of the shares of the capital stock of the said company. 6. Prior to the day of the annual election, held on the day of 18 (A. B., etc.), were the directors of the said H. Railroad -Company, and the said was president. 7. At the said annual meeting of the said stockholders, held on the day of 18 , E. F. claimed to act as chairman of said meeting, and failing in this, the said meeting having elected a chairman, the said E. F. claimed to be judge of the election for directors iinder appointment by the said (A. B., etc.), and G. H. and J. K. claimed to act as tellers by virtue of the same appoint- ment. 8. L. M. was elected by the stockholders judge of said election for directors, and O. P. and S. R. were elected tellers, and they were each duly sworn to discharge the duties of his office or appointment with fidelity, and that he will not receive any vote but suob as he verily believes to be legal in the conduct of said election. 9. By an act of General Assembly of this Commonwealth, approved the day of 18 , entitled " ," it is provided as follows ; " A list of the stockholders in this company shall be kept in the office of the company, and with the stock ledger and stock transfer books shall be open to the inspection of any stockholder at all times during business hours." 10. At the time when the polls were declared open at said meeting, the said (A. B., etc.), E. F., G. H. and J. K. withdrew from said meeting, seized the stock list and corporation books and stock ledger and all papers and documents belonging to said company, locked themselves in the secre- tary's office and refused to admit the said judge, L. M. , or the said tellers, O. P. and S. R., and a large number of other stockholders, although a demand was made upon them by said stockholders for admittance, and refused to produce to said meeting or to the said judge and tellei-s any of the said books or papers or to permit an inspection of the same by the said stockholders, or to permit the use of said books and documents, and declined to surrender the same or permit access thereto, but proceeded to deposit with said E. F. certain votes and proxies for stockholders, who were per- sonally present and voting at the election, and certain other proxies which had been revoked by proxies later in date in the hands of persons who Tooted at the election. 11. Although the said (defendants, A. B., etc.,) used their utmost BILLS B¥ AND AGAINST COEPOEATIONS. 303 ersons whomsoever." I"^. That there has not been any alteration or amendment of the said charter of incorporation. V. That by the first, second, third and fourth paragraphs of the second sedition of the third chapter of the church regulations of said corporation,, A is provided, as follows : " 2. Privileges and Duties of the Corporation. 1. The church council as an incorporated body is capable inlaw to buy, to receive and possess real estates, lands, building;-;, rents, annuities and the like, in the State of Pennsylvania. 2. The church council may receive any sum of money and movable goods of any kind, which have been given or bequeathed to tliem by per- sons or bodies politic ; and buy lands, buildin,gs, houses or rents with the same. 3. The church council shall from time to time apply the rents and in- come of the corporation, to the maintenance of the ministers and officers, who have been duly appointed and serve in the congregation, to place and preserve in good condition the burial-grounds, parsonage and school houses, and other houses belonging to th.e congregation, now belonging, or which may belong to it in future, to preserve, repair and build anew and 828 BILLS BY AND AGAINST COKPOEATIONS. Churches, and to build and maintain another church, in addition to the one already built ; and said rents, income or other property of the cor- poration shall be applied to no other use. 4. The church council can in no case alienate, sell or transfer to any person the real estates, lands, buildings or hereditaments belonging to the- same. VI. That at the annual election of said corporation in the City of Philadelphia (date) the following were duly elected vestrymen, viz. : (here set forth tlie names), and and were duly elected churchwar- dens, to serve for the ensuing year, and the said vestry duly thereafter met and elected G. W. president and C. W. W. secretary. VII. That the Congregation of Church in the City of Philadelphia was duly incorporated by Act of the General Assembly of this Commonwealth approved (date), and entitled (here set title forth). VIII. That at the annual election of said last-mentioned corporation in the City of Philadelphia (date) the following were elected vestrymen, viz. : (here set forth names), and and were duly elected church- wardens, to serve for the coming year, and the said vestry duly thereafter met and elected F. W. S. president and B. S. secretary. IX. That the said Congregation of Church in the City of Philadelphia was formerly a part of the said other corporation, but disagreement having arisen among its members, the said first-men- tioned corporation was elected out of the member's who left the parent church. X. That the said defendants, " The Ministers, Vestrymen and Church- wardens of Congregation, in the City of Philadelphia, in the State of Pennsylvania," and the said, the Congregation of Church, in the City of Philadelphia, have resolved to appropriate a portion of the estate of said first-named corporation, to wit : ' ' The Cliurch and burying- ground, on the east side of Street, in the City of Philadelphia , con- taining in front one hundred and forty feet, and extending of that breadth eastward along Street ninety-nine feet," to a use and purpose other than any use or purpose mentioned in articles 5th, 6th and 7th of the said charter, to wit : to pay tlie debts of tlae said first-named congregation and extend its burying-ground, and to invest the share of the second-named congregation, and apply the interest to internal nrissions and , in the City of Philadelphia. And the said defendants, under an order of the Court of Common Pleas, No. , as of Term, 1894, No. , are about to expose the said real estate to public sale, and in default thereof to offer the same at private sale, and dispose of the proceeds thereof in violation of the said 5th, 6th and 7th sections of said charter, and in violation of the by-laws of the said corpora- tion above quoted and referred to, and contrary to the trust expressed by the original purchasers of the said property, who by their solemn declara- tion of trust, dated , recorded in the office for the recording of deeds, etc. , for the City and County of Philadelphia, in deed book , No. page , etc., did declare that the indenture conveying tlie said property v,-pt made and intended to them, and the aforesaid building was so erected in. BnXS BY AND AGAIKST COEPORATXONS. 329 'trust for tlie use and service of the members of the Congregation, professing the doctrine, worship and discipline agreeable to the invariated confession of assembled for public worship from time to time for- ever, and for a place to bury tlie dead. XI. That the said Church has not been supported, repaired and rebuilt as required by section 6th of the said charter, and paragraph 3d, section 2d, chapter 3d of the regulations of said corporation, but the rents and revenues of the said corporation have been appropriated to other uses and purposes, and the said Church and burying-ground has been suffered by the neglect of the said first-named corporation, to fall into a state of dilapidation and ruin, so that the building is unfit for use as a house of worship, and the lot is not in proper order as a place of bui'ial, as con- templated by the founders of the said congregation. XII. That said defendants assume to have authority to sell the said real estate as above charged, under and by virtue of certain alleged acts of the Oeneral Assembly of this Commonwealth, approved 1853 (P. L., ) and 1871 (P. L. ) entitled respectively " An Act relating to the sale and conveyance of real estate," and "An Act to enable the Congregation, in the City of Philadelphia, to malie division of its property between the two congregations, into which it has become divided ; " but plaintiffs charge that said acts do not confer the powers claimed by said de- fendants, and that if said acts do pretend or assume to confer such powers "they are unconstitutional and void, as being in conflict with and re- pugnant to the Constitution of the United States, and especially of Article I., Section X., Paragraph 1 thereof, and of Section XVII., Article I. of the Constitution of the Commonwealth, which declare, that no law impairing Ihe obligation of contracts shall be passed. XIII. That plaintiffs are now members in good standing of the said Congregation in the City of Philadelphia, , and are opposed to any violation of the trust created on the purchase of said real estate, and of the charter of the said corporation, by disposing of the real estate thereof, as above charged and complained of. Plaintiffs therefore need equitable relief as follows : 1. An injunction, special until hearing and final thereafter, enjoining the said defendants and every of them from selling, conveying or other- wise disposing of the said " Church and burying-ground," for any use or purpose other than that contemplated in the original deed of said church and ground, and in the charter of incorporation. 2. That the said defendants be ordered and decreed to support, preserve, repair and rebuild the " Church and burying-ground," as required and provided in the said charter of incorporation. 3. That said alleged Acts of Assembly of 1853 (P.L., )and 1871 (P. L., ), so far as they affect the real estate of said corporation, about to be sold, be declared unconstitutional and void. 4. Such further relief as the circumstances of the case may require, and to your Honors may seem meet. Solicitors for Plaintiffs. 330 BILLS BY AND AGAINST CORPORATIONS. City and CotrNTT of Philadelphia, ss. : C. R., one of the plaintiffs above named, being duly sworn aocording- to law, dotli depose and say, that the facts in the above biU set forth, so far as they are stated of his own knowledge, are true, and so far as they are stated upon the information of others, he verily believes them to be true. Sworn and subscribed before me, j this day of , A. D. [• C. R. Notary Public. (Attach " Exhibit A.") § 5530. To Enjoin Use of Name. A corporation may enjoin the use of its name by another corporation. Fort Pitt Assn. v. Model Assn., 159 Pa. St., 308 (1893). § 5531. Form of Bill in U. S. Court by Stockholder for a Receiver for a Corporation whose Capital has been Impaired by Neglect of its Ofllcers. In the Circuit Court of the United States for the District OF The Company, Trustees under the WUl of D. M., De- oeaised, In Equity. Sessions, 18 . No. The Iron Company. To the Honorable the Judges of the Circuit Court of the United States for the District of : The Company, a corporation of and carrying on business in the State of Pennsylvania, and a citizen of said State, trustee under the wiU of D. M., deceased, as well for itself as for such other stockholders of the defendant corporation, hereinafter named, as being entitled to join as plaintiffs herein, shall become parties hereto and contribute to the expenses of this suit, brings this, its bill, against The Iron Company, a cor- poration of and carrying on business in the State of , and a citizen of said State, and thereupon your orator complains and says : I. That the complainant is a corporation duly incorporated under the laws nf the Commonwealth of Pennsylvania, having its place of business at No. Street, Philadelphia, and that it is duly authorized by its charter to act as trustee under the will mentioned in paragraph V. of this bill of complaint. BILLS BY AND AGAINST CORPORATIONS. 33L II. That The Iron Company is a corporation duly incorporated by the General Assembly of on the tenth day of February, A. D. 1865 ; that the act of incorporation, by the sixth section thereof, provided as follows : (here quote such parts, if any, as may be necessary.) Tliat the capital stock of the said The Iron Company amounts to $450,000, divided into 4,500 shares of the par value of $100 each ; that the said capital stock is full paid . The principal office of the company is Street, Philadelphia, Pennsylvania, where the stock and transfer books of the company are kept ; the principal office or place of business of the company in is located at , in County, as by copies of said charter, hereto attached as part hereof, marked "Exhibit A," will more fully appear. III. That the following is a true list of tlie stockholders of the said company, together with tlieir residences and the number of shares held bj^ each : IV. (Here state the facts and history.) V. That the said D. M. departed this life on the day of , A. D. , leaving a last will and testament, which was duly proved at Philadelphia and letters testamentary granted thereon, on . (A copy of the said will and testament, duly certified, is on file in the proper oflice in County, , and a further copy is hereto attached and made part hereof, marked ' ' Exhibit B.") By said wUl testator bequeathed shai-es of the capital stock of the said The Iron Company to the complainant in trust (here cite substance of the will). The complainant accepted the said trust, and shares of the said capital stock now stand in tlie complainant's name, as trustee, on the books of the defendant company. VI. That the said defendant company, by its charter, is authorized to do all such acts and things as shall be necessary and proper for (quote), and is now engaged in the business of ; that prior to the death of D. M. the business of The Iron Company was prosperous and well man- aged : that on the books of the company showed a surplus of assets over all liabilities of $ ; that since the death of the decedent the busi- ness of the company has not been prosperous ; that under present conditions, owing to antiquated machinery and changes in the character of the busi- ness. The Iron Company is not in a position to compete with other corporations manufacturing the same line of goods, and cannot now con- duct with success or beneficially to its stockholders the business for which it was incorporated. Complainant is informed and avers that between and the apparent surplus of the company, as appears by ita books, has been reduced to the extent of $ ; that since other losses in the surplus have occurred, but the precise figures are not withiiL complainant's knowledge. Complainant attaches hereto, as part hereof, an analysis of profit and loss account (marked Exhibits C and D). VII. That the said reduction of $ in the surplus from to mentioned in paragraph VI. of this bill of complaint does not represent the time result of the business of the company ; that tlie follow- ing entry among the credits to profit and loss account, viz. . (see Exhibit E. 332 BILLS BY AND AGAIKST CORPORATIONS. hereto attached and made part hereof) is a false and fraudulent credit^ and was made under the following circumstances : (here state the fraud). VIII. That the following is a list of the properties belonging to the company, together with the location and valuation as stated upon its books : That this is not a just and true valuation ; that it was made about fifteen years ago, and has been carried on the boobs from year to year, thereby giving a false and inflated value to the assets of the company ; that upon a just and true appraisement, the value of the said properties would stand as follows : as by reference to table showing condition of real estate and stock accounts, hereto attached as part of this bill of complaint, and marked Exhibit P, will more fully appear. IX. That the stock on hand mentioned in paragraph VIII. is valued on the books of the company at the sum of | ; that this is not a just and true valuation ; that a proper appraisement of the said stock at present market prices would not exceed the sum of % ; that the assets of the company are thereby given a false and inflated value on its books (see Exhibit F, hereto attached) to the extent of $ X. That the true financial condition of the defendant company is as follows : Complainant avers that the capital of the company defendant has been impaired to the extent of | and that the said company is in- solvent. XI. That complainant is infoi-med and avers that the enormous loss of $ (see Exhibit E) on seven years' business of the company, and the impairment of its capital to the extent of $ above recited, has been caused by gross dereliction of duty on the part of the board of directors. (Here state the particulars.) (a) The board of directors in after the capital had been impaired created new and unnecessary offices and unlawfuUy and fraudulently in- creased the salaries of the officers and managers employed by the company to the extent of $ per annum. (b) The board of dh-ectors, since , has not conducted the business -of the company in the interest of the stockholders as such, but in the inter- est of ofiioers and managers, drawing salaries only, in fraud of the rights of the complainant as a minority and non-office-holding stockholder. (c) The board of directors elected in has discharged a compe- tent, and re-employed a former incompetent manager of Mill, in the interest of office-holding stockholders. (d) The board of directors authorized the improper transfer of $ recited in paragraph VII. of this bill of complaint, in the interest of office- holding stockholders of The Iron Company, and for the fraudulent purpose of bolstering up its affairs. (e) The board of directors well knowing the steady and heavy losses suffered by the company, and that its capital was impaired, has declared .and paid dividends amounting in the aggregate since to $ Complainant avers that the facts set forth in this paragraijh are each BILLS BY AND AGAINST COltPOEATIONS. 333 and all plain violations of the duty which the board of directors owes to the stockholders, are misapplications of the capital of the company, frauds in law, and have resulted in lessening in value the shares of stock held by the complainant. XII. That a meeting of the stockholders of the defendant corporation was held on the day of February, A. D. , which was attended by all the stockholders, either in person or by proxy ; that the statement of the president of the company (Exhibit ) was read, and the attention of the stockholders was called to the serious impairment of its capital, the misap- plication of $ belonging to the and Company and the fraudulent and collusive acts of the board of directors set forth in paragraph XI. of this bill of complaint ; that the representative of the complainant moved that the question of winding up the affaii-s of the company be re- ferred to a committee of three stockholders, with the understanding that one stockholder should be selected to represent each of the three largest in- terests in the company, and that this committee should be instrvicted to report in two weeks ; that by a combination of the votes which elected the pi'esent board of directors, this motion was laid upon the table and the whole subject was referred to the board of directors, which was instructed to re- port at the next annual meeting of the stockholders. Complainant further avers that at a meeting, held on the day of , A. D. , the said board of directors ordered the sum of $ mentioned in paragraph VII. of this bUl of complaint, to be again credited to The Iron Company and charged against the and Company ; that this action was taken against the protest of the president of the company defendant, and with full notice from complainant, that said transfer was fraudulent, and a misapplication of the assets of the and Company ; that the said board of directors is the same board which is guilty of the fraudulent acts and derelictions of duty set forth in this bill of complaint, and that it is idle and useless to apply to the said board or to the stockholders for any remedy for the several grievances herein set forth, and that the complainant is without any remedy at law. XIII. That complainant was not informed of the great loss incurred in conducting the business of this company, and the impairment of its capital and the gross violations of duty and fraudulent conduct of the directors set forth in this bill, until on or about the day of , A. D. and that complainant has been advised that it now becomes its imperative duty as trustee under the wiU of the said D. 31. , deceased, to ask the court to prevent further irnpairment of the capital of the company, by winding up its affairs. XIV. That the said defendant corporation has been, and is now, doing- business in County, in the State of XV. That this suit is not a collusive one to confer on a court of the United States jurisdiction of a case of wliich it would not otherwise have cognizance, and that this complainant has exhausted all means in its power to obtain, within the corporation itself, the redress of its complaint. XVI. To the end therefore : 1. That the officers of the defendant may answer the allegations of this 334 BILLS BY AND AGAINST COKPOKATIONS. hill of complaint under oath. (If the oath be waived, say ■: 1. That the defendant may answer this biU but not under oath, the right to an answer under oath being hereby waived.) 2. That the defendant. The Iron Company, may cease transact- ing business, that its affairs may be wound up and its assets distributed amongst those equitably entitled thereto. 3. That some suitable person or persons may be appointed receiver or receivers of said corporation to take charge of its property and affairs, and administer the same under the orders and direction of this court, with a view to said winding up and distribution. 4. That the said The Iron Company, its servants, agents and ■employees, may be severally restrained b^- special injunction until the final hearing of this cause, and perpetually thereafter, from interfering or inter- meddling with its affairs, or in any manner disposing of the books, papers, money, clioses in action, assets or other property of said corporation. 0. That the said corporation may be dissolved. G. That your orator may have all such other and further rehef as its case may require. May it please your Honor to grant unto your orator the writ of subpoena, directed to the said defendant, Tlie Iron Company, commanding it to appear and answer the premises, and also the writ of injunction enjoining and prohibiting the said defendant, its officers, servants or employees, from interfering or intermeddling with its property or affairs, or its books of account, or in any manner disposing of or altering its said books, or alter- ing or making entries therein, or from disposing of any money, papers, choses in action or other property or assets of it, the said defendant, or from fin-ther conducting or prosecuting business as a corporation, and that a Teceiver may be appointed to take charge of its property, and administer the same under the orders and direction of this court, with a view to wind- ' ing up the same. And that your Honors will be further pleased to pass an order requiring all persons interested in tlie said defendant corporation to show cause, if any they have, why said corporation shall not be dissolved, on or before a certain day in said order to be named, and further giving such direction as to the publication of said order as to your Honors may seem proper. And the complainant will, etc. (Signatures of solicitors for complainant.) City of Philadelphia, ) [ sa. : State op Pennsylvania, ) , being duly sworn according to law, deposes and says : that he is the secretary of The Company, the complainant in the foregoing bill of complaint, and that the statements therein set forth are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , A. D. (Attach the proper Exhibits referred to in the bill.) CHAPTEE XII. BILLS TO PERPETUATE TESTIMONY. Perpetuating testimony is the act by which testimony is reduced to writing as prescribed by law, so that the same shall be read in evidence in some legal proceeding which may thereafter be instituted. It will be noted that the difference between perpetuating testimony and executing an ordinary commission is, that the latter (the commission) issues in a suit already brought. When a bill to perpetuate testimony is filed there is no suit in existence. § 5532. When Equity has Jurisdiction to Perpetuate Testi- mony. Equity will not entertain a suit for a part only of the sub- ject in controversy, unless the whole matter cannot be at once decided. In that event, the court will assist to the ex- tent warranted by the facts. Upon this theory chancery proceeds for the taking of evidence in perpetuam rei memoriam. Hence, if the bill show that the matter can be at once determined and that the witnesses are within the jurisdiction, a demurrer will lie. Mitford & Tyler's Plead- ings and Practice, 150 ; Story's Equity Pleadings, § 303. In McWilliams v. Hopkins, 1 Wharton, 2Y8 (1835), Huston, J., said : " It is settled in England that a demurrer will lie to a bill of this kind (to perpetuate testimony) if there is no impediment to the plaintiff trying his right at law, unless the witnesses are old and infirm. There was a case of Blaine v. Chambers, before the late Judge Smith on the circuit, in which the rule was declared to be the 335 336 BILLS TO PERPETUATE TESTIMONY. same here, and his opinion was afterwards confirmed by the whole court." If a man being in possession has no power to sue at law to have the right determined, if his title be denied and he is in danger of having it litigated at a future time when his proof may be lost by death of witnesses, he is entitled to a bill to perpetuate the testimony. 2 Story's Equity (13th Ed.), p. 831. Angell v. Angell, 1 Simons & Stuart, 83 (1822); Lord Dursley v. Berkeley, 6 Vesey Jr., 251 (1801), in which many cases are examined. g 5533. Pennsylvania Statutes. The several courts of common pleas shall have the jurisdiction and powers of a court of chancery so far as relates to : 1. The perpetuation of testimony. Act of June 6, 1836,. § 13 (P. L., 789). 2. Lost Records. Act April 25, 1850, § 26 (P. L.^ 573) All the powers and authorities conferred upon * * * the several courts of common pleas, by the 13th section of the act relative to the juris- diction and powers of the courts, passed the 16th day of June, 1836, re- lating to the " perpetuation of testimony," shall be and the same are hereby extended and made applicable to the perpetuation of testimony in cases of lost or destroyed records of any of the courts of record in this Common- wealth, whether such records were lost or destroyed before or after the passing of this act, and the same proceedings, orders, decree and judgments sliall be had therein, mntiti': mutandis, as in cases now authorized by law, and with tlie like effect, and when prox'ed such record shall have the same , legal operation as the original record would have had : Provided, That in all cases the application to perpetuate testimony shall be made in the same court in whic;h the record may be lost or destroyed. § 5534. Where the State is a Party. When any bill in equity shall be filed in any of the courts of this Com- monwealth, to perpetuate the evidence cf title to lands, tenements and hereditaments, in which bill the Commonwealth is a necessary party, the process may and shall be served on the Attorney-General, or his deputy for the county where such lands, tenements or hereditaments may He, whose BILLS TO PEEPETUATE TESTIMONY. 337 duty it shall be to attend to the interest of the Commonwealth in the premises. Act of April 6th, 1844, § 1 (P. L., 213). As to perpetuation of testimony of Orphans' Court Kecords, see Brews. 0. C. Practice, § 3842. Testimony may be perpetuated to be used in a foreign court. Morris v. Morris, 2 Phillips' Chanc. Rep., 205, 208 (1847). g 5535. What the Bill (to Perpetuate Testimony) must State. 1. It must set forth the subject concerning which the plaintiff desires to take testimony. 2. The plaintiff's right must be clearly averred. 3. It must show that the facts cannot at once be investi- gated, or that material evidence may be lost by death or absence, and that defendant claims adversely. And the prayer must be for leave to examine the wit- nesses that their testimony may be perpetuated. As to the second point, the bill must show an interest in the plaintiff not capable of being barred by defendant. Allan V. Allan, 15 Ves., 130 (1808) ; Lord Dursleyy. Berke- ley, 6 Ves., 251 (1801). As to the third point, the bill must clearly show that the matter cannot presently be investigated. Mitford & Tyler's Pleadings and Practice, 150 ; Lord North v. Lord Gray, 1 Dick., 14 (1680) ; Cox v. Colley, Id., 55 (1729) ; Parry v. Rogers, 1 Vernon, 441 (1686). And that the defendant claims adversely to the plaintiff. Mitford & Tyler's Pleadings and Practice, 150 ; Lord Durs- ley V. Berkeley, 6 Vesey Jr., 251, 260 (1801). A bill to perpetuate testimony that certain signatures are forged need not copy the instruments in words if the defendant has the possession of them. Graham v. Bank, 3 Lancaster Law Review, 68 (1886). The subject and the specific facts to be established must be clearly stated. Pettebone v. Coal Co., 4 Kulp, 349 (1883). The bill need not name the witnesses nor the evidence plaintiff expects them to give. Ibid. 22 338 BILLS TO PEBl^ETUATE TESTIMONY. § 5536. Who may Tile a Bill to Perpetuate Testimony. Any person who may on the happening of some event become entitled to an office or to any property, real or per- sonal, and who cannot at the present time sue, may bring a bill to perpetuate the testimony material for the estab- lishment of his right. But the interest must exist ; it must not be a mere con- tingency. A bill was dismissed where the plaintiff claimed that he was devisee under a will of a person then alive but a lunatic. SackvUle v. Aylesworth, 1 Vernon, 10.5 (1682). Plaintiff may file a bill to perpetuate evidence that cer- tain endorsements in his name are forgeries. The fact that tiie plaintiff is alive and is competent to testify is no objec- tion. Graham v. Bank, 3 Lancaster Law Review, 68 (1886). One out of possession cannot file a bill to perpetuate the testimony of his title. Fetiebone v. Everhart, 4 Kulp, 853 (1884). § 5537. A Bill to Perpetuate Testimony is not a Bill for Dis- covery and Cannot be so Used. The only answer the plaintiff can require is as to the facts upon which it is alleged that the plaintiff has the right to examine witnesses. Ellice v. RotqjeU (No. 2), 32 Beavan, 308 (1863). Nor can the original bill be changed by an amendment so as to make it a bill for discovery. Ibid. But a bill for discovery may pray for perpetuation of testimony. See cases cited, Daniell's Chanc. Practice, -548. § 5538. Affidavit. The bill must be supported by an affidavit, showing the circumstances by which the evidence is in danger of being lost. Mitford & Tyler's Pleadings and Practice, 150 ; Philips V. Carew, 1 P. Wms., 116 (1709) ; Shirley \. Earl Ferrers, .3 Id., 11 (1730). BILLS TO PERPETUATE TESTIMONY. 339 § 5539. If Defendant Voluntarily Answer Denying Plaintiff's Case leave will be given to either party to examine witnesses as to the issue. Brigstocke v. Boch, 1 Jurist (N. S.), 63 (1860). § 5540. Neglect to Proceed. Defendant cannot move to dismiss because of plaintiff's delay, but he may obtain an order that if plaintiff do not proceed within time named, the plaintiff shall pay defend- ant his costs. Wright v. Tatham, 2 Simons, 459 (1828) ; Beavan v. Carpenter, 11 Simons, 22 (1842). If there be neglect on part of the defendant the court may order the witnesses to be examined. Coveny v. Athill, 1 Dick., 355 (1762) ; Lancaster v. Lancaster, 6 Simons, 439 (1834). § 5541. Proceedings under the Bill. The bill is prosecuted as usual, but it is not set down for hearing. If so set down, it will in England be dismissed without prejudice to the plaintiff using the evidence. miice V. Roupell (No. 2), supra. An order is made in England for taking the evidence before an examiner. In Pennsylvania the rule is the same. The new Equity Eules provide that the office of ex- aminer shall exist "in proceedings conducted under the direction of a statute by which duties are imposed upon an examiner, as in bills to perpetuate testimony. * * * " 159 Pa. St. The defendant is entitled to examine witnesses. The witnesses can be cross-examined as usual. When all have been examined the cause is at an end. The testimony is filed, and an order is then entered on mo- tion, notice and proof that the witness is dead or too ill to attend, or that he cannot be compelled to attend. The order is, that the evidence of the witness hiay bo used in any suit in equity or trial at law after his death, or in case he is too infirm to attend or cannot be compelled 340 BILLS TO PERPETUATE TESTIMONY. to attend. When testimony is offered which has been per- petuated on a bill against a married woman as to lands, it is too late to object that her husband was not a party. Couch V. Sutton, 1 Grant, 114 (1854). § 5542. Costs. If the defendant has not examined any witnesses in chief, he may obtain after the testimony has closed, on motion or on petition and as of course, an order for payment of his costs by plaintiff. Foulds v. Midgley, 1 Vesey & Beames, 138 (1812) ; Daniell's Chanc. Prac, *15'r5. But he is not en- titled to this order if he examines a witness ; Skrine v. Powell, 15 Simons, 8 (1845) ; Vaughan v. Fitzgerald, infra; and by obtaining the order he waives any objection that he had not sufficient opportunity to cross-examine. Watkins^ V. Atchison, 10 Hare Appendix, xlvi. (1853). The costs of a bill to perpetuate testimony were stricken out of the costs in the suit at law. Mc Williams v. Hopkins, 1 Wharton, 278 (1835). § 5643. The Evidence taken is Admissible though, the Bill be Dismissed. Hall V. Hoddesdon, 2 P. Wms., 162 (1723) ; Vaughan V. Fitzgerald, 1 Schoales & Lefroy, 316 (1804). § 5544. When Papers Belonging to Record Mislaid or Lost. The Philadelphia court rule is as follows : If the papers in a cause are mislaid or lost and cannot be found when the case is called for trial, they may be supplied by such copies (served on the opposite party during the progress of the suit) or other duly authenti- cated copies of the pleadings. § 5545. Consent Not Sufllcient— Practice. Where a record is alleged to be lost the court will not permit a copy to be filed,. by mere consent ; there must be proof. Griswold v. Griswold, 13 Leg. Int., 229 (1856). The usual practice is to take a rule, supported by affi- davit, to show cause why sworn copies of lost or mislaid papers should not be substituted for the originals and filed. BILLS TO PERPETUATE TESTIMONY. 341 The affidavit usually recites tiiat the copies have been com- pared with the originals and are true and correct copies. The court upon making the rule absolute will, on motion, make an order that the sworn copies be filed in lieu of the or- iginals, to have the same effect to all intents and purposes as the originals and as of the date of the filing of said originals. In cases of exigency the court will order the filing of the sworn copies without a rule. § 5546. Form of Bill to Perpetuate Testimony — Iiost Beeord. In the Court of Common Pleas, No. , op the County of (Caption.) To the Honorable the Judges of said Court : A. B. , of the City of , brings this his bill against C. D. and E. F., also of said city. And thereupon the plaintiff complains : 1. That lie is the lawful owner of the premises (short description of the property) in said county. 2. That his title thereto is derived through (here state proceeding in which the record is lost,) as through a certain proceeding in partition brought in the Court to Term, No. , in which G. H. was the plaintiff and I. K. was the defendant. In said suit, said court, on the daj' of , entered a judgment qiwd partitio fiat, and on the day of a writ of breve de partUione faoienda was issued command- ing the sheriff of said county to make partition of said premises, according to the terms of said judgment in partition and according to law. That under said writ the said sheriff summoned a jury, and such proceedings were thereupon had that the said premises were set ajsart to I. K. at the valuation of dollars. The said I. K. thereupon toot said premises at said valuation and paid for the same. Of all which due return was made by said sheriff on said writ of breve de partitione facienda. And the said I. K., being the lawful owner of said premises, in due form of law conveyed the same to plaintiff by deed dated , recorded in the proper office at , on the day of , in Deed Book , No. , page , etc. And since that date the plaintiff has been and is now in lawful possession of said premises. 3. That the said I. K. afterwards, to wit, , died intestate leaving no widow and leaving his only children and heirs at law, C. D. and E. F., the defendants in this bill. They are the only persons who could possibly dispute the plaintiff's title to said property. 4. That no suit has been brought to contest the plaintiff's title to said premises. 342 BILLS TO PERPETUATE TESTIMONY. 5. That the said Jweue departitionefaciendaa,nd the return thereto have been lost from the records, and due and diligent search therefor has been made among the records and the same cannot be found upon the record. 6. That the loss of said writ, and the return thereto, work to the great prejudice and irreparable injury of the plaintiff. Wherefore the plaintiff needs equitable relief and he prays : 1. That an order be made by this court for the examination of the plaintiff's witnesses to establish the contents of said breve de partitione facienda and of the return thereto. That said testimony be reduced to writing and filed. 3. That your Honors shall further order that the testimony thus taken and filed stand in perpetuam rei memoriam. (Signature of plaintiff's solicitor.) (Affidavit of plaintiff. ) (Endorsement as in next form.) § 5547. Form of Bill to Perpetuate Testimony of a lost Ven- ditioni Exponas, and the Sherift's Return thereto. Follow the foregoing form as to the lost breve de parti- tione facienda. In all cases recite the proceedings fully and show plain- tiff's interest in the lost writ, as that he bought at the sheriff's sale, or that he purchased from the sheriff's vendee. § 5548. Form of Bill for Perpetuation of Testimony to Sho'vr that Plaintifl's Name has been Forged. In the Court of Common Pleas, No. , op the County of (Caption.) To the Honorable the Judges of the said Court : A. B., of the City of , brings this his bill against C. D., also of said city. And thereupon the plaintiff complains : 1. That the defendant C. D. now holds a certain paper in form (a bond or a promissory note as case may be), which paper professes to have been signed (or endorsed) by plaintiff. Said paper is dated , and professes to be (an obligation to pay to defendant or a promise to pay to defendant as case may be the sum of dollars in thirty days from date, or as the fact is. If a copy can be attached to the bill, add : ■ ' A true copy of said paper is hereto attached as part hereof, marked ' Exhibit A.' " If you do not attach a copy describe the paper as fully as possible. It would be wise to ask of BILLS TO PERPETUATE TESTIMONY. 343 defendant the privilege of making a copy. If he refuse, an averment can be made to that effect. But you are not bound to attach a copy if you aver that the paper is in posse.ssession of defendant.) 3. The signature attached to said (note or bond, or the endorsement on said note) is not the signature of the plaintifif but is a forgery. 3. The defendant has not brought suit against plaintiff on said (note or endorsement or bond), but holds the same to the great prejudice and irreparable injury of the plaintiff. 4. The plaintiff has witnesses who are familiar with and can prove his handwriting and who can establish that his alleged signature on (said en- dorsement or note or bond) is a forgery. But by reason of the omission of said defendant to bring suit on (said note or bond) the plaintiff may lose- the benefit of the testimony of his witnesses by their death or absence. (If any witness be old or infirm or sick, or about to leave, state the facts.) Wherefore the plaintiff needs equitable relief and he praj'R : 1. That an order be made for the examination of the plaintiff's witnesses to establish said forgery. That their testimony be reduced to writing and be filed in perpetua7n rei memoriam. 2. That an order be then made that the said plaintiff may read the said depositions in any action which may be brought on the said forged (endorse- ment, note or bond.) (Signature of plaintiff's solicitor.) (Affidavit of plaintiff.) (Endorsement on Bill.) No. , Term 18 . In the Couet of Common Pleas, No. , of County In Equity. A. B. V. C. D. Bill in Equity to Perpetuate Testimony. To the within-named Defendant: You are hereby notified and required to cause an appearance to be entered for you in the within-named court and file your answer to the with- in bill of complaint within fifteen days after the service hereof on you, and to observe what the said court shall direct. You are also notified that if you fail to enter your appearance and file your answer within fifteen days, you will be liable to have the bill taken pro confesso, and a decree made against you in your absence. 344 BILLS TO PERPETUATE TESTIMONY. Witness my hand at Philadelphia, this day of , one thousand eight hundred and ninety (Signature of counsel,) Solicitor pro Plaintiff. (Note.— Where practicable it would be better to file a bill praying for a delivery of the forged paper, for an injunction, discovery, etc.) § 5549. rorm of Bill for Perpetuating Testimony as to Loca- tion of Real Estate. In the Couet of Common Pleas, No. , of County In Equity. A. B., Plaintiff, V. C. D. and E. F. , Defendants. To the Honorable the Judges of said Court : A. B., of the (City of ), brings this his bill of complaint against the said C. D. and E. F., and thereupon he complains and says : 1. That the plaintiff is the owner and is seized in fee of certain real estate (here describe it briefly). 2. That the plaintiff derived title to said premises from by deed dated , recorded (date), in the proper office at (place), in Deed Book , No. , page , etc. 3. That plaintiff and his ancestors in the title and through whom e claims have been in possession of said premises for upwards of years. 4. That in one of the deeds through which plaintiff claims title as afore- said said premises are described erroneously (liere state the error; for ex- ample, as being 120 feet east of K. Street, and as being 50 feet in width, whereas in fact they are, as appears by a recent survey thereof, 110 feet east of said K. Street and 52 feet in width). 5. That the defendants are the only persons who could avail themselves of the said misdescriptions. But they decline to take any steps to bring the questions of title, of boundaries and of size to a legal determination. 6. There are many persons now living and who are advanced in years who can prove that the premises occupied by the plaintiff are the same premises mentioned and described in all the deeds and muniments of title in the possession of plaintiff as on the side of Street (120 feet east of K. Street, and as being 50 feet in width, whei-eas thej' are in fact 110 feet east of said K. Street, and 52 feet in width). All of which actings, pretences and refusals are contrary to equity and good conscience, and to the great prejudice and irreparable damage of plaintiff. In consideration whereof the plaintiff needs equitable relief and he prays : BILLS TO PEEPBTTJATE TESTIMONY. 345 (a) That an order be made for the examination of the plaintiff's wit- ■nesses to establish the plaintiflE's title and the boundaries and size of said premises. (6) That their testimony be reduced to writing and be filed inperpetuam rei memoriam. (c) That the plaintiff and those claiming under him may be at liberty on all future occasions to read and make use of the same as he shall deem proper. 'Solicitor pro Plaintiff. (AfiQdavit of plaintiff.) (Endorsement as in preceding form.) CHAPTEE XIII. DOWER. § 5550. Definition. The word is derived from the French doner, to endow. It is defined to be " the provision which the law makes for a widow out of the lands or tenements of her husband for her support and the nurture of her children." The English and the Pensylvania Statutes are cited at. length, Brews. Prac, §§ 993, 995, 998, 999, 1002 to 1019. The different kinds of dower need not be here noticed. Since the passage of the Dower Act, 3 and 4 Will. IV., c. 105, all species of dower except by custom and by the com- mon law have ceased to exist. Dower at common law is "an estate for life to be assigned to the widow in severalty in one-third part of the lands and tenements in which her husband was seized during coverture of an estate of inheritance that might have descended to the issue of the widow." Litt., §§ 36, 53. The nature of statutory dower in Pennsylvania is ex- plained. Brews. Prac, § 1024. Of what the widow is dowable. Her portion of the realty and personalty. Id., §§ 1002, 1003, 1021, 1022, 1033, 1034, 1035, 1036, 1037, 1038, 1039. Dower is an estate in the land. See Id., § 1025 ; and also- Diefenderfer v. Eshleman, 113 Pa. St., 305 (1886) ; Hagen- man v. Esterly, 1 Dist. Eep., 704 (1892). Dower is not a rent-charge. Brews. Prac. , § 1032. The ividow is a purchaser. Id. , § 1026. Her interest can he seized for her debt. Id., § 1027. 346 DOWER. 347 As to bar— waiver. Id., §§ lOM to 1051, 1054, 1055, 105^ to 1074. The husband can give his personal property even on his death-bed. Perry v. Perry, 3 C. P., 163 (1886) ; Schwartz' Estate, 42 Leg. Int., 16 (1885). § 5551. Bar of Dower in England by Act of Husband Alone. Judge Sharsvs^ood in his note to Blackstone (Vol. I., Book II., p. 138), quoting the authority, says : Besides the method of jointures, the ingenuity of modern times devised" other modes of preventing the vrife from acquiring a title to dower. One of tliese has been most extensively employed, and is still applicable to the case of widows who were married on or before the 1st day of January, 1834 (.the date fixed by the statute 3 & 4 W. IV., c. 105). Under the old law, if an estate were conveyed simply to a man in fee-simple or in fee- tail, the title of his widow to dower, in the absence of any bar by way of jointure, immediately attached, and he could not again sell the estate dis- charged of this claim without the concurrence of the wife in a fine or recovery, or, since the statute abolishing these modes of assurance, in a statutory deed of disposition or release. To avoid this inconvenience, it became usual, in the conveyance of estates, to limit the lands to the pur- chaser for his natural life, with the remainder to a trustee in trust for him during his life, in case of his life estate becojning forfeited or de- termined by any means during his lifetime, with remainder to the purchaser in fee. It followed, from the construction put upon these limitations by the courts of law, that the husband during his lifetime never had an estate of inheritance in possession in the lands, and consequentlj^ the wife's title to dower never attached. Through the medium of the statute of uses,, the purchaser was also clothed with a power of appointment, by which he could at once dispose of the fee-simple in any manner he pleased, and which efi'ectually defeated the wife's claim. This plan, known among conveyancers as the limitation to uses to bar dower, is still used when- ever it is necessary to convey lands to a married man whose marriage took place on or before tlie 1st of January 1834. But, with regard to purchasers married since that day, this device, although sometimes employed for the purpose of obviating future ques- tions as to the date of tlie marriage, is no longer necessary. For now a husband whether he become entitled to an estate by actual conveyance or by inheritance or devise, may absoluteh' dispose of it either in his Hfetime or by his will, or may charge or encumber it as he pleases, to the exclusion of his wife's title to dower. He may. either at the time of taking a conveyance to himself of the estate, or at any time there- after and either by deed or by his will, declare that his wife shall not be entitled to dower out of his estates ; or he may declare that she shall 348 DOWER. be entitled to it out of some portion only of the property. The widov^'s right to dower may also, by the husband's will, be made subject to any condition, restriction or direction which he chooses to impose ; and her right will be defeated by a devise to her of lands, or of any estate or interest therein, out of which she would otherwise be dowable, unless a contrary intention shall be declared by the will. § 5552. Other Bars. Sale under husband's mortgage bars dower. Banks' Appeal, 96 Pa. St., 298 (1880) ; Aull v. Bounell, 11 W. N., SYe ; 2 Penny., 324 (1882). Where the mortgage recites the dower interest and that it is taken subject to such charge, the dower is not dis- charged by sale. Close's Appeal, 12> Ail. ^e^., 824(1888). Judicial sale of heir's land discharges arrears due widow at sale. Alleman's Appeal, 15 W. N., 213 (1884). Only sums due at date of judicial sale are discharged ; accruing interest not due at the time of the sale is not dis- charged. Luther v. Wagner, 107 Pa. St., 343 (1884); Tospon V. Sipe, 116 Pa. St., 588 (1887). Dower remains on land sold in partition. Karstein v. Bauer, 4 Penny., 366 (1884) ; Diefenderfer v. Eshleman, 113 Pa. St., 305 (1886). Dower is not barred by assignment for benefit of creditors, and sale. Alleman's Appeal, 15 W. N., 213 (1884). Nor by a bankrupt's assignment. Lazear v. Porter, 87 Pa. St., 513 (1878) ; Porter v. Lazear, 14 W. N., 261 (1883) ; Kelso's Appeal, 102 Pa. St., 7 ; 12 W. N., 475 (1882) ; Oannon v. Widman, 3 Dist. Eep., 835 (1894). But dower is barred by mortgage sale. Bryar's Appeal, 111 Pa. St., 81 (1885). See Fellows v. Loomis, 156 Pa. St., 74 (1893). Agreement of separation and to relinquish all rights for value, followed by separation, actual, immediate and con- tinuous, bars dower. SpeideVs Appeal, 107 Pa. St., 18 (1884). Such agreement must be under seal and separately ac- knowledged. Walsh V. Kelhj, 34 Pa. St., 84 (1859). DOWER. 349' Desertion is no bar. Nye's Appeal, 24 W. N., 121 (1889) ;. Holbrookes Estate, 20 W. N., 79 (1S87). Eefusal to travel with the husband, and adultery, are no bar. Heslop v. Heslop, 82 Pa. St., 537 (187G). A release of part of the land does not discharge the balance. Jozies' Appeal, 1-i W. N., 313 (1884). Wilful desertion and adultery are a bar. Beilstein's Estate, 37 P- L. J. (O. S.), 255 (1890) ; Eeel v. Elder, 62 Pa. St., 308 (18G9). Thirty years' absence and a second marriage after a divorce which might have been avoided are a bar. Richard- son's Estate, 132 Pa. St., 292 (1890). Adultery whch has been condoned is no bar. Drinh- house Estate, 29 W. N., 35 (1891), affirmed in 31 W. N., 38 (1802). Acquiescence in a sale under the husband's will and claiming proceeds will bar dower as against the land but not against the fund. Cunningham's Estate, 38 P. L. J. (0. S.), 129 (1890). A cotemporaneous agreement that an assignment shall not include dower prevents a bar. Wanner v. Landis, 26 W. N., 529 (1890). An agreement which provides that trustees shall buy lands for the tise of the cestuis que trust, and shall hold and sell the same as soon as practicable for the use of the cestuis que trust, works a conversion of the land purchased, and the vendee of the trustees takes the land free from any dower of the wives of the cestuis que trust. Hunter v. Anderson, 152 Pa. St., 386 (1893). Where real estate is conveyed by a committee of a lunatic under order of court, the wife of such lunatic may release her dower in such real estate in the same manner as if she were a widow. Act of March 28, 1879, § 1 (P. L., 14). Such release must be executed prior to a decree that the lunatic has been restored to his reason. Bequest or devise is in lieu of dower. Brews. Prac, Vol. I., § 1004. Widow's share if she do not take under the will. Id., §§ 1005, 1006. 350 DOWEE. As to the widow^s election. Brews. Prac, Vol. I., §§ 1074 to 1083, 1086 to 1090. She may be cited to elect. Id., § 1008. Proceedings by action at law are stated, Id., §§ 1097 to 1112. She must sue in the county where the land lies. Rod- ney V. Washington, 16 W. N., 226 (1885). Where her interest is secured by recognizance, she may bring set. fa. sur the recognizance, or may distrain or com- mence an action of assumpsit. The remedies are cumu- lative. Evans v. Ross, 107 Pa. St., 231 (1884). A court of equity may award an annual sum in lieu of dower, and the widow may distrain where a court of equity makes such charge. Borland v. Murphy, 4 W. N., 472 (1877). The amount of rent due by the tenant of the premises charged, to his landlord, does not interfere with the right of the widow to distrain for the entire sum due her. Murphy \. Bo7iand, 92 Pa. St., 86 (1879). The dowress can distrain whether claiming under legal proceedings or by agreement. Baker v. Liebert, 23 W. N., 466 (1889). If the purchaser retain money to pay the dowry he is liable to the widow in assumpsit. Everard v. Hess, 4 Kulp, 242 (1886). The widow can sue a borough taking the entire land charged with dower for a street without notice to her. Borough v. Welsh, 117 Pa. St., 174 (1887). § 5553. The Orphans' Court Remedy. Whilst the action at law lies against one holding the land adversely and against one not amenable to Orphans' Court process, yet it is clear that if a decedent has died in possession the legal action of dower will not lie and the jurisdiction is exclusively in the Orphans' Court. See cases cited : Brews. Prac, Vol. III., § 3881. The other proceedings in the Orphans' Court are noticed. Id., §§ 3882, 3883, 4188, 4067 ; Id., Vol. IV., §§4739, 4879. DOWEK. 351 Hoiv dou-er to be secured on partition. Brews. Prac, Vol. I., § 1009. If the land consist of several parcels. Id., § 1011. Bower of the widow of an intestate co-tena7it. Id., § 1013. Doiver does not merge. Id., § 1031. Danhouse's Estate, 130 Pa. St., 256 (1889). Possession of the husband not requisite. Brews. Prac, § 1033. Lynch v. Lynch, 132 Pa. St., 422 (1890). Partial intestacy. Brews. Prac, § 103Y. Court can decree determination of a trust created to pay dower. Id., Vol. III., § 3882. As to payment and discharge of dower. Id., §4188; Id., Vol. IV., §4739. Proceedings in certain cases to satisfy dower. Id., Vol. III., § 466Y. When dower remains charged after sale. Id., Vol. IV., § 4739. § 5554. The Bemedy in Equity. The Act of March 17, 1845, § 3 (P. L., 160), conferred on the Court of Common Pleas of Philadelphia County "all the power and jurisdiction of a court of equity in all cases of dower and partition " within that county. The Act of July 7, 1885, § 1 (P. L., 257), extended this juris- diction to "the several courts of common pleas of this Commonwealth * * * in all cases * * * within their re- spective counties." The Act of February 20, 1854, § 1 (P. L., 89), conferred jurisdiction at law and in equity for partition and recovery of dower "although the lands * * * may lie in one or more counties, the county where the decedent * * * had his domicil or where the homestead or larger part of the estate in value shall be situated " being the seat of the jurisdiction and service to be made by any sheriff where any defendant may be found. 352 DOWER. § 5655. No Action of Dower to Abate by Death. The Act of March 14, 1865, § 1 (P. L., 345), provides : No action of dower, unde nihil habet, hereafter brought or now pend- ing and undetermined in the courts of this Commonwealth, shall abate by- reason of the death of the plaintiff therein ; but the same may be prose- cuted by the executors or administrators of said plaintiff, who shall be sub- stituted as plaintiffs therein on the record on suggestion of the death of the plaintiff, to recover the annual value of the said plaintiff's estate in dower, or the rents, issues and profits thereof from the time of the decease of the husband, until tlie date of the death of the original plaintiff in such action. g 5556. Widow who Elects to Take Dower in Lieu of Tak- ing Under Her Husband's Will. The Act of April 20, 1869, § 1 (P. L., 77), provides : In case any person has died, or shall hereafter die, leaving a widow, and last will and testament, and sach widow shall elect not to take under the will, in lieu of dower, at the common law, as heretofore, she shall be entitled to such interest in the real estate of her deceased husband as the widows of decedents dying intestate are entitled to under the existing laws of this Commonwealth. It may be stated as a general principle that courts of equity now entertain a general concurrent jurisdiction with courts of law in the assignment of dower in all cases. Story's Equity Juris., Vol. I., § 624. § 5557. It has been Stated that an Alien Is not Entitled to Dower. In Beese v. Waters, 4 W. & S., 145 (1842), it was held that an alien could acquire no title in his wife's estate as tenant by the curtesy initiate. Achsa Snodgrass was seized in fee of the land in dispute. She married Waters, an alien. Eeese obtained a judgment against Waters and levied upon the wife's land. Under an inquisition it was extended. A Uberari was issued and returned "possession delivered to plaintiff." Eeese then brought ejectment against Waters and Achsa his wife. The court below entered judgment DOWER. 353 for the defendants and the Supreme Court affirmed. They said : Had the husband * * * been an American citizen he would have been tenant by the curtesy initiate by force of the marriage alone, and seized of a freehold in his own right. The cause, then, is without difficulty so far as it depends on the common law, which forbids an alien to take by pur- chase for the benefit of any one but the Crown or the Commonwealth, or to take at all, where the estate would devolve on him by operation of law. It has been expressly decided that an alien cannot be tenant by the curtesy ; and the disability which prevents him from being seized in his own right would equally prevent him from being seized, in right of his wife, of her freehold, whether of inheritance or not of inheritance. Is this disability removed by our Act of 1818, which allows aliens to purchase subject to a limitation as to quantity ? It cannot be doubted that the Legislature con- templated a purchase in the ordinary sense of the word. * * * We are therefore of opinion that the husband, in this case, had nothing in the land which could be taken in execution. Whether an alien might not be joined with his wife in an action for an injury to her freehold, we are not prepared to say. Shanks t. Dupont, 3 Peters, 242 (1830), is cited in sup- port of the statement that an aUen cannot claim dower. But it does not directly rule that point. An action of par- tition was brought for land in South Carolina, of which one Scott was seized. He died intestate, leaving two daughters, one of whom married a British officer named Shanks. The children of Ann Shanks claimed a share. They were excluded on the ground of their alienage. They appealed and contended that their mother, Ann Shanks, was a British subject and that her title was protected by the treaty of 1794. The other side argued that the decree should be affirmed because Mrs. Shanks was an American citizen and that the treaty which protected the titles of British subjects did not apply. The Supreme Court re- versed the judgment. No point as to dower arose. But Mr. Justice Story, in delivering the opinion of the court, said : The general doctrine is that no person can, by any act of their own, without the consent of the Government, put off their allegiance and be- come aliens. If it were otherwise, then a femme alien would by her mar- riaf'e become ipso facto a citizen and would be dowable of the estate of her husband, which is clearly contrary to law. 23 354 DOWEE. A woman alien shall not be endowed. 1 Comyn's Digest, *544. If the wife of a subject be an alien, she shall not be er- dowed. 3 Id., *508. An alien cannot purchase or inherit any lands. 1 Bacon's Ab., 201. If a woman alien marry a subject, she shall not be en- dowed, because by the policy of the laws all aliens are dis- abled from acquiring any freehold amongst us. 1 Id., liOB 8 Id., 192. An alien wife is not dowable except by law of the Crown Coke on Litt., Chap. V., § 36 [31&] (First American Edition), In Sutliff V. Forgey, 1 Cowen, New York, 89 (1823), it was held, That an alien wife had no right, at common law to dower, but that the New York Statute of March 2(3 1802, conferred such right. In Sistare v. Sistare, 2 Eoot (Conn.), 468 (1796), the widow of a naturalized foreigner, who had remained away from him in a foreign country, against his consent, was held not to be entitled to dower in his estate. In Kelly r. Harrison, 2 Johns. Cases (N. Y.), 29 (1800), a native of Ireland came to New York in 1760, where he resided until his death in 1798. He left a wife in Ireland, having been married in 1750. The wife continued to reside in Ireland as a subject of Great Britain. It was held, That the wife, being an alien, could not recover dower except for lands of which the husband was seized before July 4, 1776. An alien widow of a natural-born citizen cannot be en- dowed, unless, before his death, she took steps to be natu- ralized, in accordance with the New York Statute. Mick V. Mick, 10 Wend., 379 (1833). The alien widow of a man who himself was an alien, and held land under an act enabling aliens to hold real estate, cannot claim dower. Connolly v. Smith, 21 Wend. (N. Y.), 59 (1839). The authorities appear to decide that at common law an alien is not entitled to dower, and that she who claims it .must show a statute in her favor. DOWEE,. 3o5 g 5558. Application of Equity jTirisdiction in Dower, etc. 1. TT'^ere the dowress has died her personal repre- sentatives can file a bill for an account of rents and profits, although dower was not assigned in her lifetime and although she did not sue. Paul v. Paul. 36 Pa. St., 2T0 (1860). It has been already noted that if the widow bring suit at law and die before judgment, her personal representa- tives can be substituted under the Act of March 14, 1865, § 1 (P. L., 345). 2. Limitation of equity jurisdiction in Common Pleas Courts. Under the Act of April 20, 1869, § 2 (P. L., 77), conferring jurisdiction on the Orphans' Court (of partition at the instance of widow and others), a court of equity- has no jurisdiction save to decree an account of rents and profits until partition. McNicMe v. Henry, 8 Phila., 87 (1871) ; Bobbins v. Green, 1 W. N., 143 (1875) ; Collins v. Dougherty, 2 Luz. Legal Peg., 194 (1873). As the widow must sue at common law where the hus- band did not die seized, or when the land is held adversely, and as she may bring partition under the last-cited act, it would seem that the remedy by bill in equity is confined principally to the two general heads above stated. 3. When jurisdiction of Orphans' Court is exclusive. Where the husband dies seized and the widow takes under his will, her remedy is exclusively in the Orphans' Court. See cases cited Brews. Prac, Vol. III., § 3881. Prior to the Act of 1869 where she elected not to take -under her husband's will, she was obliged to sue in the Common Pleas. Shaffer v. Shaffer, 50 Pa. St., 394 (1865). Since that act her remedy is in the Orphans' Court. Mc- NicMe V. Henry, 8 Phila., 89 (1871) ; Bobbins v. Green, 1 W. N., 143 (1875). 4. Widow of tenant in common. The widow of a ten- ant in common must sue the co-tenant by action of dower. Evans v. Evans, 1 Phila., 113 (1847). 5. Equity can charge annual sum. The Common Pleas in Equity can charge an annual sum on particular real 356 DOWER. estate of the husband. Borland v. Murphy, 4 W. N., iVS' (1877) ; Gannon v. Widman, 3 Dist. Eep., 835 (1894). 6. She can sue in equity where there is breach of agreement. Where dower has been released, so long as an annual payment was made, the widow can sue in equity upon default of payment, and dower can be assigned. The statute of limitations is no bar to such a bill. Merrill's Appeal, 16 W. N., 491 (1885). Y. When legacy in lieu of dower does not abate. Where there is a deficiency of assets, a legacy to a widow in lieu of dower does not abate. Young's Estate, 32 P. L. J. (0. S.), 403 (1885). 8. Lien creditor of widow. After sale in partition, a lien creditor of a widow cannot claim payment out of the fund. The fund will be invested, the interest will be ordered to be paid to the proper parties during life of widow, and on her death to be distributed. Dekin v. Clark, 3 0. P., 106 (1886). 9. Widow of tenant of base fee. Widow of tenant of a base fee is entitled to dower. Lovettv. Lovett, 10 Phila., 537 (1873). 10. Unopened mines — Life estate. But there is no dower in an unopened mine. Buckley v. Collins, 8 Luz. Legal Reg., 77 (1879). Nor in a life estate with remainder over. Jones v. Bland, 112 Pa. St., 176 (1885) ; 116 Pa. St., 190 (1887). 11. Vested remainder. Widow of one holding a vested remainder is entitled to dower. Bloodgood's Estate, 8 C. C, 546 (1890) ; Lynch v. Lynch, 132 Pa. St., 422 (1890) ; Wilson V. Ott, 34 W. N., 159 ; 160 Pa. St. 433 (1894). § 5559. Extent of the Dowry— Pleadings— Defenses. The widow is not entitled to anything but the value of the land. She cannot claim for improvements of purchaser or of devisee. Winder v. Little, 1 Yeates, 152 (1792) ; Thompson v. Morrow, 5 S. & R., 289 (1819) ; Shirtz v. j'Shirtz, 5 Watts, 255 (1836) ; Janney's Estate, 2 Dist. Eep., ■: 'IS (1893). olie can recover from date of her husband's death with- DOWER. 357 out respect to the time defendant has occupied. Seaton v. Jamison, 7 Watts, 533 (1838). The defendant cannot set up an outstanding title under which no claim has been made. Evans v. Evans, 29 Pa. St., 277 (1857). Nor can he say that he is a bona fide purchaser from the husband without notice. Reel v. Elder, 62 Pa. St., 308 (1869). Nor that a part of the purchase-money which had been kept back to indemnify against dower had been at- tached by creditors of the husband. Warner v. Macknett, 3 Phila., 325 (1869). Where the husband did not die seized, damages and costs are not recoverable. Sharp y. Pettit, 4 Dall., 212 (1800) ; Benner v. Evans, 3 P. & W., 454 (1882) ; Barnet v. Barnet, 15 S. & E., 72 (1826) ; Lineweaver v. Stoever, 17 Id., 297 (1828). If the husband's title is denied by the answer, the de- fendant cannot be required to account until after the Avidow's rights have been established. Heylin v. Ashton, 7 Phila., 464 (1870). If the ante-nuptial agreement in bar of dower be exe- cuted after betrothal, and on the day of the marriage, it must be supported by evidence that no advantage was taken, and that the woman had knowledge of its provisions and their effect. Shea's Appeal, 121 Pa. St., 302 (1888). § 5560. Assignment of Dower. In England, if the widow's right is disputed, the Court of Equity refers the question to a court of law. Mitford & Tyler's Pleadings and Prac, 217. An issue is directed, or the bill is retained, with liberty to the plaintiff to bring a writ of dower. Under the Penn- sylvania Practice in Equity, an issue would be directed. ConJclin v. Bush, 8 Pa. St., 517 (1848) ; Sampson's Estate, 4 Dist. Eep., 204 (1895). The first inquiry for the court is of what lands the hus- band died seized wherein the widow is entitled to dower. The property being ascertained, the dower is then assigned. 358 DOWER. As the office of master is now abolished, this must be done by the court or a referee. In equity the master formerly reported, as in cases of partition. When the dower has been assigned, possession is delivered to the plaintiff. The widow is also entitled to her account of the rents, etc. In England (2 Daniell's Chanc. Pr., 6th Am. Ed., *116r) in- terest is not allowed on arrears of dower. Where there has been no vexatious litigation, costs are not allowed in England. But in a case of vexatious delays Sir W. Grant, M. E., awarded costs. Worgan v. Ryder, 1 Vesey & Beames, 20 (1812). § 5561. Entry After AssignmerLt. After assignment of dower the widow has a right to enter. Evans v. Webb, 1 Yeates, 424 (1795). § 5562. Decree. When the court has inquired of what lands the husband was seized, and assigned to plaintiff her dower, the better practice is to present a formal decree to the court for approval. To this end, secure the consent of counsel for defendant to the form of decree, or notify him when it shall be presented. § 5563. Form of Decree Assigning Dower, etc. (Caption.) And now, to wit (date), this cause came on to be heard (or further heard as the case may be), upon bill, answer, replication and proofs, and was ar- gued by counsel, and thereupon, upon full consideration thereof, and on motion of L. M. pro plaintiff, it is ordered, adjudged and decreed as fol- lows : That of the lands and tenements whereof G. H. died seized, and where- in the plaintiff A. B. is dowable, there is hereby assigned and set out to plaintiff as her dower in such lands and tenements the following described premises, viz.: (here set forth description of premises), and it is also ordered that the said defendant shall deliver possession of the said premises so set out and ascertained as aforesaid, to the said plaintiff, and let said plaintiff into immediate enjoyment thereof, to hold the same for her natural life in severalty by the metes and bounds aforesaid as dower. And it is further ordered and decreed that the said C. D., defendant, pay the said A. B. , plaintiff, the sum of | , the same appearing upon an account of the rents and profits of the lands and tenements whereof G. H. died seized, to be due plaintiff in respect of her dower, as her one-third DOWER. 359 part thereof which has accrued since the death of the said G. H. (date), and which came into the hands of and was received by said defendant. (Insert any proper clause as to costs.) § 5564. Limitation. The common-law action for an account would be barred in six years under the Act of March 27, 1Y13, § 1 (1 Sm., 76). And wherever the claim cannot be enforced at law, the statute may be pleaded in equity. Murray v. Coster, 20 Johns., 676 (1822) ; Kane v. Bloodgood, 7 Johns. Chanc, 91 (1823) ; McCartee v. Camel, 1 Barb. Chanc, 455 (1846) ; Clark V. Ford, 3 Keyes (N. Y.), 370 (1867) ; Bones' Appeal, 27 Pa. St., 492 (1856). Six years is the period fixed by the English statute, which expressly mentions "arrears of dower." Stat. 3 & 4 Wm. IV., c. 27, § 41, cited 1 Daniell's Chanc. Prac. (6th Am. Ed.),*653. Where dower has been released, so long as a certain an- nual sum is paid, the statute is no bar to a bill brought for assignment of dower after default has been made in the payment. Merrill's Appeal, 16 W. N., 491 (1885). Sixty-four years held to bar. Meyer v. City, 2 Legal Record, 39 (1881). If the husband alien, the statute does not run against the widow until his death. Winters v. De Turk, 25 W. K., 511 (1890). The Statute of Limitations of March 26, 1785, § 2 (2 Sm. L., 300), providing that a right of entry upon real estate shall be barred after the expiration of twenty-one years after the right accrues, is applicable to an action of dower nnde nihil habet brought by a widow against real estate of which her husband was seized in his lifetime, and which he alienated before his death without his wife joining in the conveyance. Care v. Keller, 77 Pa. St., 487 (1875); Winters v. De Turk, 25 W. N., 511 (1890). § 556S. Sequestration in England. Sequestration against the husband will not bind wife's 360 DOWEK. dower after his death, even though the marriage took place after the sequestration issued. Burdett v. BocJiley, 1 Vernon, 118 (1682). ii 5566. Form of Bill for Dower. is THE CiBouiT Court ok the United States, fob the Eastebj^ Dis- TBICT OP PeNA'SYLVANIA. In Equity. L. C, widow of G. C, deceased, -i V. J- Sessions, 18 . No. B. C. J L. C, a citizen of the State of New York, and residing in tlie City of New Tork, in said State, brings this her hill against B. C, a citizen of the State of Pennsylvania, and resident in said State, and thereupon your oratrix com- plains and says as follows : 1. K. C, of the City of , in the State of , was in his lifetime seized and possessed, among other valuable property and estates, of (here de- scribe the estates) in County, and State of Pennsylvania. 2. The said E. C. departed this life on the day of , in the City of , leaving no widow, but leaving one child, a son, then a minor, G. C, to whom the estate of the said K. C. descended as his heir. 3. On the of 18 , the said G. C, being then of full age, and your oratrix were duly married at , in full conformity to law. 4. The said G. C. departed this life on the of 18 , seized in fee of the premises above described. He left surviving him no children or issue, but left your oratrix, his widow, and also collateral heirs, of whom the nearest is B. C, who has entered upon and taken possession of all said property. 5. Tour oratrix charges, therefore, that she is entitled to her share in the proiits of said estate, and to an assignment by way of dower and conveyance to her by appropriate deeds and assurances of her share as widow in the above- described estates. 6. Tour oratrix further shows that it is tlie duty of the said B. C, defend- ant, who is in possession of the said estate and premises above described, to set apart, assign and convey to your oratrix, by appropriate assurances, her share of said premises, viz. : , her dower or rights under the intestate law of Pennsylvania in and out of the said premises above referred to, but the said defendant, B. C, not regarding the rights of your oratrix, has refused and neglected, and still refuses and neglects to assign, convey and set apart to your oratrix her interest in said lands. ^ Wherefore and inasmuch as your oratrix has no adequate redress at law in the premises, she stands in need of equitable relief, and prays : I. That your honorable court will decree that the said G. C. was entitled to an estate in fee-simple in the premises described in the first paragraph of this bill, and that your oratrix is entitled under the law of the Commonwealth of DOWBR. . 361 Tennsyhania to an interest of one-half thereof for and during tlie term of her natural life. II. That a pai'tition be made to your oratrix awarding to her one-half part of the said premises, described in the first paragraph of this bill, for the term of her life, in accordance with law and equity. III. That the said defendant, the said B. C. , be decreed and directed to convey and assign to your oratrix, by suitable deeds and assurances, the said one-half of said premises, to have and hold the same subject as aforesaid, and receive the rents and profits thereof for and during the period of her natural life. IT. That the defendant account to and with your oratrix for one-half of the rents, income and profits of the said premises since the date of the de- cease of the said G. C. Y. Such further and other relief as yom- oratrix may be entitled to receive in the premises. VI. And may it please your Honors to grant unto your oratrix a writ of subpoena directed to said defendant B. C, commanding him to be and appear before this honorable court on a day certain to be therein named, then and there to answer the premises, and to stand to, perform and abide such further orders, directions and decree as may be made against him. And your oratrix will ever pray, etc. Solicitor for Complainant. In the U. S. courts issue a subpcsna on jour prcecipe. In a bill for dower the executor is not a proper party. Drum V. Wartman, 6 Phila., 45 (1865). § 5567. Form of Bill by Executors of Dowress. The foregoing form can be followed so far as applicable. Charge always : 1. The seisin of the husband at the date of his death ; describe the land ; if he left a will recite it. Attach a copy if important. 2. The number of children, if any. Name all parties having an adverse interest. 3. Aver the widow's right. If she elected against the will, state the facts. If the dowress be dead, state that she survived her hus- band. Give date of her death, copy of her will, etc. Pray for account to date of her death. 362 DOWER. g 5568. Form of Bill by Widow for Partition. Changing the title of the court, the Orphans' Court form can be used. See Brews. 0. C. Prac, Vol. IV., §^ 4814. The Chapter on " Partition " in this book can also be consulted. CHAPTER XIV. RECEIVEIIS. § 5569. Definition- Powers, etc. Any person who receives money to render an account thereof to another may be termed a receiver. The word- in Chancery Practice has a somewhat different signification. Here it means a person appointed by a court of equity jurisdiction to receive money, or to take charge of property, real or personal, and to hold the same subject to the order of the court. A receiver is an indifferent person between the parties, appointed by the court to collect and receive the rents, issues and profits of land, or the produce of personal estate, or other things which it does not seem reasonable to the court that either party should do ; or where a party is incom- petent to do so, as in the case of an infant. Bispham on. Equity, § 576. The property entrusted to a receiver is in custodia legis ; he holds it for the court, the priority of legal or equitable liens is not disturbed, his possession cannot be interfered with by force, or by legal process except with the permis- sion of the court appointing him, and he cannot be sued in any other forum except with the permission of that court. WiswallY. Sampson, M How. (U. S.), 52 (1852) ; Barton V. Barbour, 104 U. S., 135 (1S81). A receiver is appointed upon a principle of justice for the benefit of all concerned. Every kind of property of such a nature that, if legal, it might be taken in execution, may, if equitable, be put into his possession. Hence the appointment has been said to be an equitable execution. S64 RECEIVERS. He is virtually a representative of the court and of all >he 3)arties in interest in the litigation wherein he is appointed. ,He is required to take possession of property as directed, because it is deemed more for the interests of justice that he should do so than that the property should be in the possession of either of the parties in the litigation. He is not appointed for the benefit of either of the parties, but of all concerned. Money or property in his hands is in custodia legis. He has only such power and authority as ^re given him by the court, and must not exceed the pre- scribed limits. The court will not allow him to be sued touching the property in his charge, nor for any malfeas- ance as to the parties, or others, without its consent ; nor will it permit his possession to be disturbed by force, nor violence to be offered to his person v,'hile in the discharge of his official duties. In such cases the court will vindicate its authority, and, if need be, will punish the offender by fine and imprisonment for contempt. The same rules are applied to the possession of a sequestrator. Where prop- erty in the hands of a receiver is claimed by another, the right may be tried by proper issues at law, by a reference to a master, or otherwise, as the court in its discretion may see fit to direct. Where property in the possession of a third person is claimed by the receiver, the complainant must make such person a party by amending the bill, or the receiver must proceed against him by suit in the ordinary way. After tenants have attorned to the receiver, he may distrain for rent in arrear in his own name. In a suit between partners he may be required to carry on the business in order to preserve the good- will of the establishment, until a sale can be effected. SWAYNE, J., in Davis v. Oray, 16 Wallace, 203 (1872). He is the executive hand of a court of equity. His duty is to protect and preserve for the benefit of the persons ultimately entitled to it, an estate over which the court has found it necessary to extend its care. He occupies a fiduciary relation to the owners of the property under his care and to all who have claims upon it. He is subject in all things to the direction and control of the court, whose EECBIVEES. 865- officer he is ; and when in doubt about his duty in any particular, it is his privilege to apply to the court for specific instructions. He must not employ unnecessary help, enter upon unnecessary litigation, or incur unneces- sary expenses. Williams, J., in Schwartz \. Keystone Oil Co., 32 W. N., 137 (1893). § 5570. Preliminary Observations as to the Appointment of Eeeeivers— Wotice. The parties may nominate suitable persons, and the court will act directly tipon the nominations. Oowan v. Jewries, 2 Ash., 296(181:0). Where it appeared that the plaintiff, who was one of the partners, was entitled to nearly all that might be realized from the assets, and that the amount to be so realized depended largely upon the management of the assets and the proper disposition of the goodwill and fixtures, the plaintiff, whose integrity and capacity were unimpeached, was appointed receiver without the right to commissions. Warren v. Stagner, 7 W. N., 127 (1S79). As a general rule, notice should be given to the parties. in interest, except where the delay may cause irreparable injury. The defendant, upon showing satisfactory cause, may supersede the order appointing a receiver without, notice. Oowan v. Jeffries, 2 Ash., 296 (1840). The appointment of a receiver, before answer and final decree, will only be made under circumstances which would authorize a decree for dissolution. Where the copartner- ship was insolvent, and the plaintiffs were excluded from their full share of the management of the concern, and the defendant neglected to keep proper books, as well as to keep them open and free to the inspection of the plaintiffs, who were refused access to them, a receiver was appointed. Ibid. Where a corporation was not named as a party to a bill in equity and was not in court upon notice for a preliminary injunction, it was held error to appoint a receiver. Graven- stine's Appeal, 49 Pa. St., 310 (1865). S66 EECEIVEES. g 5571. Power of the Court to Appoint. The power to appoint a receiver of partnership property, and to issue an injunction against one partner to prevent his interfering with it, is vested in the courts of common pleas of Pennsylvania by the Acts of June 16, 1836, and October 13, 1840, conferring general equity jurisdiction in partnership cases. Sloan v. Moore, 37 Pa. St., 217 (1860). g 5572. When a Receiver will be Appointed. In Blondheim v. Moore, 11 Maryland Eep., 365 (1857),, Lb Grand, 0. J., stated the following propositions appli- cable to the appointment of receivers : (1) That the power of appointment is a delicate one, and to be exercised with great circumspection ; (2) it must appear that the claimant has a title to the property, and the court must be satisfied by affidavit that a receiver is necessary to preserve the property ; (3) that there is no case in which the court appoints a receiver merely because the measure can do no harm ; (4) that fraud or imminent danger, if the inter- mediate possession should not be taken by the court, must be clearly proved ; and (5) that unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application. A receiver should only be appointed in cases where in the sound discretion of the judge it appears necessary for the protection of the property that it should be placed under the control of the court. Illustrations may be suggested by the following risks : (a) The death of a partner. In such a case the representa- tives of the deceased may ask the protection of the court, but the surviving partner should be appointed unless he has been guilty of some act showing incompetency or bad faith. To guard against this contingency of death, many articles of partnership contain special provisions , (6) The fraud of a partner. (c) The insolvency of a firm or corporation. {d) Cases of liquidation of firm. Where a liquidator is EECEIVEES. 367 chosen by agreement a receiver -will not be appointed unless there be some abuse of the trust. Hoffman v. Steinheisser, 11 W. N., 383 (1S81). The same rule applies to — (e) Trustees regularly chosen. City v. Trustees, 12 W N., 477(1882). (/) For coupons and other trust property tuhich passes by delivery, not earmarked as trust property, in the hands of a mere custodian, a receiver may be appointed in absence of fraud. Fidelity Co. v. Huber, 7 W. N., 278 (1879). {g) To wind up a building association after expiration of charter, no trustees having been appointed on dissolu- tion. Morrison v. Building Association, 1 Lack. Jur., 437 (1890). In McFadden v. Nolan, 39 Leg. Int., 118 (1882), a mill and machinery had been sold at sheriff's sale. The defend- ant refused to deliver possession. The purchaser filed a bill showing that the machinery, if neglected, would deterio- rate. A receiver was appointed to take charge of it pending legal proceedings to oust the defendant, the latter's posses- sion not to be interfered with. Where a retiring partner assigned his interest to a stranger, and the remaining partner denied the right of the retiring partner and his assignee and set up an unfounded adverse title, a receiver was appointed. Seibert v. Seibert, 1 Brews., 531 (1868). During the continuance of a partnership a receiver will not be appointed merely because of a disagreement or quarrel between the partners, unless there be an exclusion by one partner of the other. When the partnership has ended and the parties cannot agree as to the disposition of the property, and particularly when the articles do not provide for this, a receiver will be appointed. When the continued possession of the partnership property is indis- pensable for the purposes of the partnership, as, for example, the publication of a newspaper, one of the partners cannot, without the consent of the others, sell or assign the property, when the partnership is closed or about closing. If he at- tempt to do so a receiver will be appointed. Eeasons which 368 EECEIVBES. justify a receiver will warrant an injunction. Sloan v. Moore, 37 Pa. St., 217 (1860). § 5573. Insolvent Proceedings. By the Act of October 13, 1840, § 11 (P. L., 4), where an insolvent is committed, or where ho is bound over under the Insolvent Act of March 31, 1860, or is tried and convicted of any offense under that act, or of fraudulent insolvency under any other law of Pennsylvania, the court, upon petition of a creditor, may appoint a receiver of the insolvent's estate. Such receiver to have the rights and powers and to be subject to the same general duties as assignees of insolvent debtoi's. § 5574. Insolvent Insurance Companies. Under Article VIII. of § 5 of the Act of April 4, 18T3 (P. L., 20), the Court of Common Pleas is authorized to decree the dissolution of an insurance company in case of its in- solvency or fraudulent conduct. In the event of such dis- solution a receiver may be appointed, who shall give security, pay debts and report to the insurance commis- sioner annually. Act of May 1, 1876, §§ 49,50,51 (P. L., 66). A receiver appointed under the Act of 1873 will supersede one previously appointed by the court upon the petition of the president of the insolvent insurance company. In re Petition of Kittanning Ins.Co., 146 Pa. St., 102 (1892). § 5575. Insolvent Mutuallnsurance Companies. The Act of June 23, 1885 (P. L., 137), provides for the appointment of a receiver upon the dissolution of a mutual insurance company adjudged to be insolvent. § 5576. Insolvent Banking Companies. Under the 27th section of the Act of May 13, 1876 (P. L., 169), the auditor-general may investigate the affairs of any banking company that has committed an act of insolvency, and may apply for a receiver, "who shall take immediate possession of the books, " etc., for the creditors. The 28th section of the act provides for security and tlie conversion of the assets into money and its distribution KECEIVERS. 369 (1) to the depositors, (2) to the payment of the remaining liabilities, and (3) the residue, if any, to the shareholders. Under the Act of May 18, 1878, § 1 (P. L., TO), the auditor- general is authorized to deliver to the receivers appointed under the Act of 1876 {supra) bonds or evidences of debt deposited with him to secure the circulation of the bank ; the receiver first to furnish the auditor- general with a cer- tified copy of his appointment and a certificate that he has given security. § 5577. Contested Elections. In cases of contested elections in Philadelphia the Court of Common Pleas may appoint a receiver to take and hold, pendente lite, the fees and emoluments of the contested office upon entering security. Such receiver must file an account, and may be required to invest the funds in his hands in the debt of the United States, of Pennsylvania, or of Philadelphia. Act of April 10, 1867, §§ 1, 2 and 3 (P. L., 1123). § 5578. A Receiver may be Appointed in Cases where a Corpo- ration has been Dissolved by Judgment of Ouster upon Proceedings of Quo Warranto. The Act of April 26, 1893 (P. L., 26), provides : Sec. I. That whenever any corporation incorporated under the laws of this Commonwealth shall be dissolved by judgment of ouster upon proceed- ings by quo warranto in any court of competent jurisdiction, the said coui-t, or in vacation any one of the law judges thereof, shall have power to ap- point a receiver, who shall have all the powers of a receiver appointed by a court of chancery, to take possession of all the estate, both real and personal thereof, and make distribution of the assets among the persons entitled to receive the same according to law. The powers of such receiver may con- tinue as long as the court deems necessary for said purposes, and he shall be held to supersede an assignee of the corporation in possession. Sec. II. The provisions of this act shall also apply to any corporation that has been heretofore dissolved by judgment of ouster upon proceedings of quo warranto in any court of competent jurisdiction, the affairs of which have not been settled and adjusted. This act was passed to correct the Act of April 4, 1872, § 2 (cited in Brews. Prac, Vol II., § 2075). 24 370 iiECElVKKS. In Commonwealth v. Order of Vesta, 33 W. N., 1 ; 156 Pa. St., 531 (1893), the defendant, a corporation under the Act of 18Y4, created by decree of the Common Pleas of Phila- delphia, made an assignment for the benefit of creditors October 6, 1892, to a resident of Philadelphia County. The deed of assignment was recorded in Philadelphia. On No- vember 15, 1892, the Attorney-Greneral instituted quo war- ranto proceedings in Dauphin County, and judgment of ouster was entered January 26, 1893. Upon February 23, 1893, the Dauphin County Court appointed a receiver. Sub- sequently the Act of April 26, 1893, was passed, and upon Ma}'' 4, 1893, the court, under authority of the act, reap- pointed the receiver theretof or named. Upon appeal by the assignee, the Supreme Court held, That the appointment of the receiver prior to the Act of 1893 was void for want of jurisdiction ; that under the Act of 18*72 the appointment of a receiver was not part of the quo warranto proceedings ; that none of the defendant's property being in Dauphin County, nor its officers resident or served with process there, that court had no authority to make any order divesting the assignee's title ; that the Act of 1893 did not apply to cases then in course of adjudication by a competent court ; and that the provision of the act that the assignee in possession should be siiperseded by the receiver would not authorize summary orders upon an assignee who was under the jurisdiction of another court. The receiver must go into that court for an account and order to turn over the property. This decision was followed in Assigned Estate of Frater- nal Guardians; 2,4:^. N., 218, 159 Pa. St., 603 (1894). § 5579. Where Assignee or Trustee Dismissed for Certain Causes. The Act of June 14, 1836, § 31 (P. L., 633), pro- vides for the appointment of a receiver to take charge of all books, papers, moneys and effects in the hands of an assignee or trustee who shall have been dismissed because of lunacy, habitual drunkenness or removal from the )State, etc. EECEIVEES. 371 § 5580. When a Eeceiver will Not be Appointed. Where the answer is responsive to the bill and fully denies every substantial averment, and the answer is not overcome by further proof, there is nothing to justify an injunction or the appointment of a receiver. Cromhie v. Order of Solon, 157 Pa. St., 588 (1893). The plaintiff must show a clear right. If the partner- ship be denied and there is no proof of the defendant's in- solvency, the court will not appoint before final hearing. Savage v. Weber, 5 Kulp, 91 (1S88). A receiver is only appointed to protect a clear and well- defined right and for the prevention of an irremediable injury which might otherwise ensue. The appointment is the subject of a sound discretion, and the court must be satisfied that it is the proper means of securing an appro- priate end. Such appointment is a strong measure and is not to be doubtfully exercised. Oil Co. r. Petroleum Co., 67 Pa. St., 83 (1868) ; Lumber Co. v. Soap Co., 2 Dist. . Eep., 803 (189:5) ; Baxter v. Buchanan, 7 Phila., 315 (1869). In the latter case an alleged partnership was denied. In Srmms v. Brouse, 10 Phila. Eep., 13 (1873), the plaintiff failed to show that he was actually a partner and the court refused to appoint a receiver. Where the partnership articles provided a mode of winding up the business, by withdrawal of the dissatisfied partner and the stating of an account, witb a reference of disputed questions to arbitrators, the court refused to appoint a receiver. Curtis v. Hale, 1 W. N., 371 (1875). Where the facts are in doubt and the cost of a receiver- ship may exceed the entire assets of the alleged partner- ship, a receiver will not be appointed. Post v. Weehs, 3 Dist. Eep., 380 (1893). The court will consider the implied duties and obliga- tions implied in the partnership articles, as well as the express conditions therein contained. The court should be careful to preserve a valuable business and to put each partner on an equal footing. Slemmer's Appeal, 68 Pa. .St., 168 (1868). Many other instances where the court has appointed or 372 EECEIVEKS. has refused to appoint partnership receivers will be found in the Chapter on ' ' Accounts " in this book. A receiver should not be appointed by the Common Pleas where the Orphans' Court or the Admiralty has pos- session of the property. In England, when a will is dis- puted in the Ecclesiastical Court, the Court of Chancery may appoint a receiver, although an admimstTatoT pendente lite might be obtained in the Ecclesiastical Court. Atkin- son V. Henshaw, 2 Vesey & Beames, 85 (1812) ; Ball v. Oliver, Id., 96 (1813). Nor should a receiver be appointed to destroy a levy by the sheriff. Where the sheriff is in custody, a receiver might take the surplus, if any. The Court of Equity might set aside a judgment or an execution as fraudulent, or for any reason destructive of its life, or might direct an issue, and pending the issue order a sale by a receiver. But the proceeds would be held sub- ject to whatever lien the judgment or execution might ultimately establish. As all courts of law can open, set aside or strike off judgments and set aside executions, there must be some special reason to move the conscience of a chancellor. Where an insolvent corporation confessed a judgment, it was held that other creditors had no right to have the sale restrained and a receiver appointed, on the ground that the property of the corporation could be sold by a re- ceiver more advantageously to all the creditors. Pairpoint Co. V. Optical Co., 161 Pa. St., 17 ; 34 W. N., 216 (1894); Lowry v. Optical Co., Id., 123 (1894). § 5581. S^ectment Cases. A mere ejectment bill will not give a court of equity jurisdiction to appoint a receiver. Messimer's Appeal, 92 Pa. St., 168 (1879) ; Schlechfs Appeal, 60 Id., 172 (1869). § 5582. When lyectment Pending. In DunlapY. Riddell, 7 W. N., 466 (1879), a receiver was appointed to take charge of a flowing oil well pending an ejectment. IIECEIVEIIS. 373 But the contrary was ruled as to wells not flowing though productive, in Transit Co.'s Appeal, 9 W. N., 225 (1880) ; Emerson's Appeal, 95 Pa. St., 258 (1880). These cases seem difficult to reconcile. But the weight of authority is decidedly against the summary ouster of a defendant in an ejectment by the appointment of a receiver. The case is thus virtually transferred from the court of common law to the court of equity. A judge anxious to exercise authority may lend too ready an ear to the supposed case of hardship presented by the plaintiff, and the defendant may virtually be dispos- sessed on a summary hearing and without his constitutional right of trial by jury. It is this stretching of authority which sometimes makes equity odious. Mr. High says on this subject (High on Receivers, § 383) : The better doctrine undoubtedly is, that in ordinary actions of eject- ment, or suits for the recovery of real property in the nature of ejectment at common law, when no especial equities intervene in favor of plaintiff, the contest being merely as to the legal title of the premises in dispute, a receiver of the rents and profits will not usually be appointed pendente lite. Unless, therefore, some equitable grounds are made to appear, entitUng plaintiff to the rents and profits as such, or unless it is shown that their sequestration is essential to his protection, equity will refuse to. lend its aid by a receiver, since the interference would, in effect, amount to a complete ouster of the defendant by taking away from him the subject-matter of the litigation, without trial or judgment. And in such case a valid legal title in the plaintiff is not of itself a sufficient ground for the relief. People v. Mayor, 10 Abbott's Prac, 111 (1858) ; Tliompson v. Sherrard, 35 Barb., 593 {1861) ; 33 How. Prac, 155 (1861) ; 13 Abbott's Prac, 437 (1861). Where the plaintiff's title cannot he gainsaid and there is danger of loss because of defendant's negligence, mis- management, waste or insolvency, a receiver may be ap- pointed. Ireland v. Nichols, 37 How. Pr., 222 (1869). Wliere plaintiff has recovered a verdict and judgment in ejectment, there is strong ground for appointing a receiver where defendant is insolvent or is guilty of waste and is delaying the case by motion for new trial, or by certiorari from a U. S. court removing the record from the State court. Frisbee v. Timanus, 12 Fla., 300 (1868) ; Collier V. Sapp, 49 G-a., 93 (18Y3) ; Whitney v. Buckman, 26 Cal., 447 (1864). 374 IIECEIVEKS. § 6583. Structure of Bill for Receiver. The bill must clearly and positively aver all the facts necessary to convince the court that the property can be managed and preserved more advantageously to the parties in interest through a receivership. The facts must be set forth with particularity. The bill should contain a prayer for a receiver and an injunction. By the vs^eight of authority the prayer for a receiver, if omitted, is not fatal. A receiver may be appointed under the prayer for relief. The bill should be sworn to. g 5584. Form of Bill for a Receiver of an Insolvent Railrpad. Corporation. In the CrROUiT Court of the United States foe the Easteb>' District of Pennsylvania.. In Equity. T. C. P., a citizen of the State of New York, and resident therein, Complainant, V. The Raih-oad Company, a corporation created by, and existing under the laws of the State of Pennsylvania, and resident therein ; Tlie Coal and Iron Company, a cor- poration created by, and existing under the laws of the State of of Pennsylvania, and resident therein ; and The Com- pany, a corporation created by, and existing under the laws of the State of Pennsyl- vania, and resident therein. Defendants. April Sessione 18 , Nb» To the Honorable the Judges of the Circuit Court of the United States for the Eastern District of Pennsylvania : The above named complainant brings this his bill of complaint against EECEIVEES. 375 the defendants above-named, on his own behalf and on behalf of all other holders of bonds of a like character with those owned by him, hereinafter described, tendering to such other persons and holders the right to inter- vene if they shall see fit. And tliereupon he complains and says : 1. He is a citizen of the State of New York, residing therein. The Railroad Company is a corporation created by and existing under the laws of the State of Pennsylvania, and resident therein. The Coal and Iron Company is a corporation ci'eated by and existing under the laws of the State of Pennsylvania, and resident therein. The Com- pany is a corporation created by and existing under the laws of the State' of Pennsylvania, and resident therein. 2. On or about the 3d of January 1888, the said The Railroad' Company made an issue of the third preference income mortgage bonds to a large amount, the amount of said issue being now in excess of $35,000,000. The bonds thus issued were for $1,000 each. Each of said bonds provided for the payment to the owner, at the office of the company in the City of Philadelphia, on the first day of January 1958, of tlie sum of $1,000 in gold coin of the United States of America, of the then present standard weight and fineness, with interest thereon meanwhile payable in like gold coin, on the delivery of the proper coupon therefor, on the first day of February of each year, only out of the net earnings of the i-ailroad company for its fiscal year, ending on the 30th day of the preceding November, available for the- purpose, up to five per centum per annum, after providing for certain pay- ments therein set forth and enumerated. To each of said bonds was attached a coupon providing substantially as follows : " On the first day of February, A. D. , The Railroad Company will pay to the bearer, upon sux-render of this and all prior coupons, such portion of its net earnings up to $50 as shall, in accordance with the mortgage securing the same, be then applicable to the payment of interest on its third preference income mortgage bond No. ." 3. The bonds thus issued were secured by a certain mortgage bearing date the 3d of January 1888, executed and delivered by The Railroad Company and The Coal and Iron Company to The Company. This mortgage thus executed and delivered to the said Company was duly accepted by it by writing under its seal, attested the 6th day of March 1888. It was duly recorded, in accordance with law, in all the counties of the State of Pennsylvania and in other places in which the mortgaged property was situated. A copy of said mortgage, marked " Exhibit A," is filed herewith, which it is prayed may be taken as part of this bill. Said mortgage, subject to certain prior incumbrances therein recited, conveyed all the railroad properties and railroads owned, leased and con- trolled by the said The Railroad Company, and all railroads and railroad properties which it might thereafter own, lease and control. It also conveyed other properties, as is therein set forth, reference to said mortgage being craved, and, inter alia, conveyed, " all and singular the tolls rents, revenues, issues, profits and income of said railroad company, tmd derived from all railroads, canals and other property, and all the cor- 376 BECEIVBES. porate and other rights, privileges, appurtenances and franchises of the railroad company, acquired or to be acquired, connected with or relating to the mortgaged premises." The said mortgage also conveyed all the coal lands, coal leases, iron ore lands, franchises, properties and other real estate then belonging to the said Tiie Coal and Iron Company, together with certain other properties in said mortgage described, to which reference is craved, and specifically ' ' together with aU and singular the tolls, rents, revenues, issues, profits and income of the said coal company and derived from said nioitgaged property, and all the corporate and other rights, privileges, appurtenances and franchises of the coal company, acquired or to be acquired, connected with or relating to the said lands, coal or iron mines or other premises, or any of them," etc. 4. By said mortgage it was provided that ' ' the railroad company hereby covenants and agrees to apply the net earnings of the said raOroad company, so far as the same may be available after the payment of all fixed charges, as hereinafter defined, to the payment of the interest up to five per centum per annum upon the bonds hereby secured." It further provided : " The railroad company, on or before the 15th day of January 1889, shall ascertain the net earnings applicable to the interest on the bonds hereby secured for the period from June 1, 1887, to December 1, 1888, up to 7-J- per centum for said period, and shall thereafter, on or before the 15th day of January of each year, ascertain the net earnings for the fiscal year ending the preceding 30th of November, applicable to the interest hereby secured, up to five per centum per annum, and the railroad company shall, on or before the 15th day of January of each year, furnish the trustee with a statement showing the amount of the net earnings appU- cable to the interest on the bonds secured by tliis mortgage, and give public notice of the rate of interest payable on said bonds." 5. During the fiscal year ending the 30th of November 1893, the net earnings of the said railroad company applicable to the interest upon the third preference mortgage bonds was sufficient to pay thereon the sum of five per centum per annum. Prior to the 15th of January 1898, the said railroad company furnished the trustee with a statement which showed that the amount of net earnings applicable to the interest on the bonds secured by the said mortgage was sufficient to pay five per centum per annum upon all of the third preference bonds. The said railroad company, prior to the first day of February 1893, gave public notice that the rate of interest payable on all of the said tiiird preference mortgage bonds was five per centum per annum, and that the same would be paid on the first day of February 1893. 6. The complainant is the holder of |55,000 third preference income mortgage bonds of the said The Railroad Company. Interest to the amount of $2,750 became payable on said bonds by the said railroad company, on the first day of February 1893. Demand was made in writ- ing by the complainant upon the said railroad company, prior to the filing of the present bill, to pay to him the said amount. This demand was re- fused by the said railroad company, and it has failed up to the present RECEIVERS. 377 i;ime to pay him any portion of the amount which became due and payable on the first day of February 1893, on said bonds. 7. Interest upon other bonds of said issue held by other owners remains unpaid by the said railroad company. This complainant, however, is with- out the requisite knowledge or information to state the extent of the default in payment of said other interest. 8. The complainant has demanded of the said The Company that it shall, because of the default in payment of said interest, proceed in equity to foreclose said mortgage, and to bring about a sale by judicial process of the mortgaged premises. The said company has not only refused to institute such proceedings, but it has also refused to make entry upon the mortgaged premises, and to take possession of the same, and to sell, or proceed to sell, the mortgaged premises. 9. The complainant is advised by counsel, and, therefore, avers that it is the duty of the said trustee, by reason of the default of the said railroad company to pay said interest upon said bonds, to foreclose the mortgaged premises for the benefit of this complainant, and all the other holders of bonds of like character with those owned by himself. 10. A very great income can be derived from the operation of the said The Railroad Company and The Coal and Iron Company, and it will be to the last degree disastrous should the business of either be even temporarily suspended. 11. A large amount of income is now in the possession of, or under the ■control of, said two companies, justly applicable, under the terms of said Tnortgage, to the payment of the interest due to the complainant. The -said companies refuse to appropriate this income to such payment and threaten to apply the same in and about the payment of the unsecured in- debtedness of said companies. 13. The said The Railroad Company and The Coal and Iron Company, though possessed of ample property, if the same be judici- ously administered and held together, to pay aU their indebtedness, are insolvent in the sense that they are without funds in the shape of cash, or assets convertible into cash, sufficient to pay their indebtedness actually matured, or which will within a short time mature. The property' of each of said companies is of vast extent and enormous -value. That of the said The Railroad Company consists of numer- ous railroads and canals owned, controlled or leased by it, together with other appurtenant land, depots, warehouses, wharves, offices and other structures, and of rolling stock and other personal property, of great value .and of various kinds and descriptions. The property of the said The Coal and Iron Company consists of large bodies of anthracite coal lands, situated in Schuylkill, Northumber- land, Columbia and Dauphin Counties, in the State of Pennsylvania, owned or leased by it, the whole amounting to more than 80,000 acres, whereupon are situated numerous collieries, which are being constantly operated by the said The Coal and Iron Company. It also consists of large bodies of land beyond the coal measures, and of furnaces, rolling mills, and K)f a vast amount of personal property. 378 EECEIVEES. The business of the said The Railroad Company is that of trans- porting freight and passengers. The business of the said The Coal and Iron Company is that of mining coal a'nd iron ore and of manufactur- ing iron. The two companies together employ and require to employ the services, of many thousand employees. Although the two corporations are distinct, the said The BaUroad Company owns all the stock of the said The Coal and Iron Company. The business of the two companies is so intimately connected that the operations of the said The Eaih'oad Company depend largely upon those of The Coal and Iron Company. By reason of the inability of the said companies to procure the means to conduct the operations of the same, the said Railroad Company, will be unable to transport passengers, freight and coal over the system of railroads above referred to, extending to and into the States of Pennsylvania, Delaware, Maryland, New Jersey and New York. The said Coal and Iron Company will be unable to paj' the wages of the persons employed in operating its mines and collieries, and will, therefore, be prevented from continuing the mining of coal, which is necessary for public use, the result of which will be great harm and inconvenience to the public, as well as- serious inconvenience and damage to the said railroads, canals, mines and property, by reason of the failure to run and operate the same. 13. The property of the said railroad company is encumbered by mort- gages or deeds of trust securing various issues of bonds representing its funded debt. The so-called floating indebtedness of the said company is also very large. Bonds, stocks and other securities and assets of the com- pany of various kinds, of great intrinsic value, are pledged for the payment thereof. The company is also indebted for taxes, for balances due other railroad companies in the adjustment and interchange of business, for arrears of wages and salaries due its own employees, and for large sums due for materials and supplies. The said railroad company is utterly un- able, out of assets immediately available for the purpose, to discharge or provide for this indebtedness. There is imminent danger of its property being levied on, attached, disintegrated and sacrificed. Such levies or attachments will work irreparable injury not only to itself but to its creditors. The property of the said Coal and Iron Company is also heavily encumbered by a great variety of mortgages securing bonds and issues of bonds. The said company is also largely indebted, not only to The Railroad Company, but for materials and supiolies and other expenses in- cident to its business. The wages and salaries due its employees are unpaid to a very lai-ge amount. It is utterly unable, out of assets immediately available, to discharge or provide for this indebtedness. There is imminent danger of its property being levied upon, attached, sold and disintegrated, to the irreparable injury of its creditors. 14. The business of the said two companies, under ordinary circum- stances, would yield an income far more than sufficient to provide for the payment of the interest due upon the bonds held by the complainant. The present condition of the said companies is largely the result of demands of EECBIVEES. 379" loans for which there is ample securib- pledged with the lenders, but whicK loans the holders thereof are unwilling at the present time to renew. 15. Under these circumstances the interference of a court in equity for the ascertainment and enforcement of complainant's rights is imperatively required, and especially for the immediate appointment of a receiver or re- ceivers to take charge of, keep and preserve the property of the said two companies, continue their business, receive and properly approijriate the income thereof, until the final decree of tlie court in tlie premises. The complainant, therefore, suing in this respect, as well on his own behalf as on behalf of such others, creditors of tlie said defendants, as may be entitled to sue, and all other creditors who may come in and contribute to the expenses hereof, and being without sufScient remedy at law, prays. for equitable relief as follows : (a) That the rights of complainant and of the other holders of the third preference income mortgage bonds of the said railroad company, in or to- the property, real and pereonal, of the said railroad company, and of the said coal and iron company, mortgaged to secure the said bonds, may be ascer- tained and defined. (6) That the said The Company may be required to institute pro- ceedings in equity for the foreclosure of the said mortgage, and for the sale- by judicial process of the mortgaged premises, for the purpose of realizing proceeds with which to pay the amount of interest due to the complainant and to the other preference income mortgage bondholders, and to pay the principal of the said bonds. (c) That the said The Company may be required to enter upon and take possession of the mortgaged property of the said raUroad company and of the said coal and iron company, and to maintain, use and operate the same, pending the final decree of the court in the premises, and that by such final decree it may be ordered to exercise the power of sale contained in the said mortgage, unless in the interim the default upon the said bonds shall be cured by payment of all arrears of interest thereupon. (d) That a decree shall be entered determining the fact of default in the payment of the interest due to the complainant, and to other . holders, upon the said third preference income mortgage bonds, and that said decree shall order and direct the sale of the mortgaged premises, unless the default in the payment of the said interest shall be afterwards cured by payment of all arrears thereof. (e) That a receiver or receivers may be appointed, with full power and authority to demand, sue for, collect, receive and take, in his or their pos- session, the goods, chattels, rights, credits, moneys and efiEects, lands, tene- ments, books, papers and property of every description belonging to the said companies, defendants, and to sell, convey and assign all the said real and personal property, the proceeds thereof to be disposed of by the said receiver or receivers, from time to time, under the direction of the court, among the creditors of the said defendants, first paying to the said receiver or receivers such reasonable compensation as the court may deem just and proper, and also deducting the costs of the proceedings of the said court, and that said receiver or receivers may receive from the said court, in ad- ■380 BECEIVBES. -dition to the ordinary p6wers possessed by such receiver or receivers, full power and authority to run and operate said raUroads, canals and premises, and to manage and operate said mines, estates and property, as well those leased by the said companies, defendants, as those constructed, ac- quired or procured by it or them under its or their charter, and to preserve and protect the corporate franchises, privileges and property, and to pre- serve the corporate existence of each and both of the said companies, de- fendants, and to preserve said railroads, canals, mines, estates and property from being sacrificed under any proceedings which can or may be taken, and likely to prejudice or sacrifice the same, and that an injunction may issue against the said defendants and all persons claiming to act by, through or under them, and all other persons, to restrain them from interfering with the said receiver or receivers taking possession of and managing the said property, and that the complainant may have such further relief in the premises as the nature of the case may require, and as may be agreeable to -equity. (/) That the Eailroad Company and the Coal and Iron Company, and the Company, the latter in its capacity as trustee Tinder the said indenture of mortgage, be each required, under its respective corporate seal, to answer all and singular the matters liereinbefore stated. (g) That the amount due upon the bonds, principal and interest, intended to be secured by the said third preference mortgage, be ascertained and de- termined in such manner as the court may direct. Qi) That a decree be entered directing the defendant, The Railroad Company, to pay what shall appear to be due upon taking such account, at such reasonable and proper time as to the court shall seem meet, and in such manner as shall be in accordance with the practice of the courts of equity. (i) That in default of such payment it be decreed that the said The Railroad Company and The Coal and Iron Company be absolutely barred and precluded of and from aU rights and equity of re- demption in and to the said mortgaged premises, and that a decree by this court be entered directing the sale of the whole mortgaged premises as an entirety by the said The Company, or by a master, or such other person, and in such manner as the court may deem meet and suitable under the circumstances of the case. (j) Such other and further relief as the court may deem proper and equitable. May it please your Honors to grant the complainant a writ of subpoena, to be directed to the said defendants, thereby commanding each of them to be and appear on a certain day before the said court, and then and there full, true, direct and perfect answer make to all and singular the premises, a,nd further to perform and abide by such further order, direction and de- cree therein as to the said court shall seem meet. And the complainant will ever pray, etc. J. G., For Complainant. (Afadavit.) (Attach "Exhibit A.") RECEIVERS. 38L § 5585. Other Forms of Bills for Eeceivers. See Chapters on " Corporations " and "Accounts " in this- book. g 5586. Practice. When the bill has been drafted, printed and served as in other cases in equity, the usual practice is to make the motion for a receiver as on a motion for an injunction. Due notice of the motion must be given the defendant. In extraordinary cases, where irreparable injury would be occasioned by delay, service of the bill and notice of th& motion may be dispensed with. In Philadelphia the motion is usually heard on Satur- day at the close of the lists. It may be made at chambers. It is well settled that the application may be made be- fore answer filed. Under the former practice in support of the formal, motion the plaintiff read the bill of complaint and affida- vits. The defendant replied by affidavits or, if there had been time, by printed answer. Where the answer was filed after notice of the motion, it was treated merely as an affidavit, and counter-affidavits, were permitted to be read. The new Equity Eules prescribe the practice in injunc- tion cases, but make no mention of receivers. The appointment of a receiver goes hand in hand with an injunction, and a case which requires the appointment of a receiver also justifies granting an injunction. (See- § 5572.) Under Equity Eule XI., § 58, it is provided that on all interlocutory applications, as for 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-examination as in other cases or upon reasonable notice, to require the other party :382 EECEIVERS. to produce his witnesses for examination in open court, un- less sufficient cause be shown to the contrary. The right of enforcing this rule resides with the judge in his discretion. Under the recent Equity Rules, where an ex parte injunction has been granted, the evidence upon the hearing lot the end of four days, or such other time as may be fixed, iimst be taken subject to cross-examination, and ex parte afSdavits will not be received. The practice on the motion for a preliminary injunction is fully described in the Chapter "Injunctions" in this book. The practice on a motion for a receiver is the same. It may be here observed that the object of the appoint- ment of a receiver being to preserve the property, the ap- plication is usually on interlocutory motion. A receiver may be appointed on final decree. The motion may be made at any time, and if refused may be renewed upon sufficient cause shown since the refusal. The court, in addition to the evidence, will hear all questions of law involved. If the court refuse the motion, a formal order should be handed to the court dismissing or refusing the motion, and filed of record. If the court grant the motion, three things should be considered : (a) the decree, (6) whom the court will appoint, (c) the bond. (a) The decree should be drawn with care, and should recite fully the powers of the receiver appointed. This matter is frequently slighted. But it is recom- mended that in all cases the decree should be prepared and presented. More than the formal entry by the court in its minute book should be required in so extraordinary a pro- ceeding. When prepared, it should be submitted to counsel for defendant, and if approved, presented to the court. The decree should name the receiver, the security re- quired, how the sureties shall be approved, what property the receiver shall control, and his powers. It should be EECEIVEBS. 083 brief or lengthy according to the necessities and require- ments of the case. (6) The receiver must be an indifferent person. He must not be a party in interest. The question of ehgibihty has been considered. The court usually appoints upon the nomination of counsel representing the plaintiff. Sometimes the sugges- tion or nomination is filed of record. (c) The bond must cover the full value of the property committed to the custody of the receiver. Two sureties are usually required, who are approved by the court or the clerk as directed by the decree. ^ 5587. Form of Decree Appointing Receiver, etc. (Caption.) And now, to wit, (date,) upon consideration of bUl, answer and testi- mony, and on motion of L. M., pro plaintiff. It is ordered and decreed : (a) That , Esq. , be and he is hereby appointed receiver of all the assets and property (if a corporation add, franchises, rights, privileges, etc. ,) of whatsoever kind of the (defendant) within the jurisdiction of said court, with power to take, hold, demand, receive and collect all the funds, assets and property belonging to (defendant), or in the hands of any debtor, agent or depository of said defendant, and to account to the court for the same. And any debtor, agent or depository of said defendant, as well as the defend- ant himself, is hereby directed to forthwith pay, deUver and assign all money, •securities, assets and property of every kind whatsoever to said receiver. And the said receiver is hereby empowered to bring, prosecute and defend all suits at law or in equity which in his judgment may be necessary for the preservation and protection of the property and interests under his care and control. And the said receiver shall file an inventory and appraisement of the property committed to his custody, and shall file his account and accounts therefor and shall distribute the same according to law to the persons en- titled thereto, with such other, powers as may be necessary and incident to protect the rights and interests of all parties in interest. (b) That upon security being entered by the said receiver as required by law, the defendant, his agent and employees are hereby enjoined from retaining or taking possession of the money, or retaining, taking, delivering or assigning any of the assets or property (franchises, rights, privileges, etc.) of said (defendant), and from collecting or receiving any of the money, assets, securities or property of said (defendant), or in anywise dealtag therewith, or in molesting or interfering with the full and absolute possession and control thereof by the said receiver. (c) That security be entered in | , to be approved by the court (or the clerk of the court). - • ■, . (Signature of judge.) 384 RECEIVERS. § 55S8. Form of Order Appointing Beceivers of an Insolvent Bailroad Corporation. (Caption.) And now, to wit, , this cause came on to be heard upon bill and affidavit, J. J. appearing for the complainant, T. H. for The Railroad Company and The Coal and Iron Company, upon motion for the appointment of receivers : and thereupon, after due deliberation, it is adjudged and ordered and decreed that be, and are hereby appointed receivers of said corporations, defendants, and of all the rail- i-oads and canals owned, leased or operated by the said The Rail- road Company, and of all the real and personal property of the said The Coal and Iron Company and of the said The Railroad Com- pany, of whatever kind and description and wheresoever situated, includ- ing all collieries, steamships, canal boats, barges, locomotives, cars and other rolling stock, tools, machinery, coal yards and fixtures, coal on hand ;'.t the mines, at the points of shipment and elsewhere ; all books of ac- count, money debts, things in action, bonds, securities, deeds of writing, leases, muniments of title, bills receivable, rents, profits and income of the Ijremises accruing and to accrue, as well as all rights, easements, privileges and franchises of the said corporations defendant ; that the said receivers be, and they are hereby authorized to run and operate the said railroads and canals, and operate such other railroads as the said The Rail- road Company holds, under lease or otherwise, and has heretofore run, and to run and operate the canals held or owned by the said company, and to exercise the authority and franchises of the said company,' and to preserve the said property in proper condition and repair, so that it may be with safety and most advantageously used, and to protect the title and posses- sion of the same, and to employ such persons and to make such payments and disbursements as may be needful and proper in so doing ; that the said receivers be and they are hereby authorized to collect the income, toUs and profits of the said railroads and canals, and to make appropriate payments therefrom on account of accruing rents and other necessary charges ; also all the sums now due and maturing and to arise and mature for materials and supplies about the operation, and for the use of the said railroads and canals ; and that they pay aU rents and taxes due and gi-owing due by the aforesaid corporations defendant, and all sums due and to become due to other railroads and canals by said corporations, with respect to their asso- ciated operation. And it is also adjudged, ordered and decreed that the said receivers be, and they are hereby authorized to make payment from and out of the income, toUs and profits of the property of the said companies, of all the sums now due and maturing, and to arise and mature, to the em- ployees of the said The Railroad Company and The Coal and Iron Company. No payment to be made under the said order for either materials and supplies or for wages due and maturing, except such as has become due within four months last past, or which shall hereafter arise and mature, with leave to any party to move for further orders. And it is further ordered that the said receivers be authorized and EECEIVEES. 385 directed to keep the mines and other property of the said The Coal and Iron Company employed and used in the manner they have heretofore been used and employed, so far as the said receivers shall deem it to be for the best interests of all parties concerned, and to continue the mining opera- tions of the said The Coal and Iron Company, and to sell and dispose of the coal already mined or to be mined, either for cash or on the usual credits, and out of the proceeds thereof to pay the wages and taxes, roy- alties, rents, freights, debts for suppUes and interest due on securities charged on the property, to protect the same from forfeiture, and that they, with all convenient speed, ascertain and report the state, condition and cir- cumstances of the property, and of the debts and liabilities charged thereon or owing by the corporations defendant. And it is further ordered that the joint and several bond of tlie said receivers in the sum of $500,000, to be approved by the court, conditioned that they shall well, truly and duly perform the duties of their office, and duly accovmt for aU moneys or property that may come into their hands, and abide by and perform all things which they shall be directed to do, be forthwith filed in the ofRce of the clerk ; and the said receivers are ordered and directed to keep accounts of all the sums received and paid out by them, on account of the said corporations respectively, and to pass their accounts monthly before , Esq., who is hereby appointed special master in the cause, and that the said receivers be, and are hereby authorized to em- ploy such agents and assistants and counsel as may be necessary for the eSectual discharge of their duties by this order conferred. It is further ordered that an injunction be issued against the defend- ants and all other persons claiming to act by, through or under them, and all other persons, to restrain them from interfering with the said receivers taking possession of and managing the said property, with leave to any party in interest to apply for further directions. (Signature of judge.) § 5589. Form of Bond of Receiver. C. P. No. . Term, 18 . No. (Caption.) Enow all men by these presents, That we, (name of receiver.) (names of sureties,) are held and firmly bound unto the Commonwealth of Pennsyl- vania, in the sum of dollars, lawful money of the United States of America, to be paid to the said Commonwealth, its certain attorney or assi<^ns ; to which payment, well and truly to be made, we do bind and oblio-e ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , A. D. one thousand eight hundred and ninety-five (1895). Whereas, the Court of Common Pleas, No. , for the County of Philadelphia, on the day of , A. D. 1895, ordered and decreed (here recite decree.) 25 386 EBCEIVEitS. Now THE CONDITION OF THIS OBLIGATION IS SUCH, That if the above bounden (name of receiver) shall well and faithfully execute the said trust in all legal respects, then this obligation is to be void ; otherwise it is to remain in full force and virtue. Sealed and delivered in ) [Seal.] the presence of ) [Seal.] g 5590. Duties of Receiver After Appointmeiit. A bond with good and sufficient security should be pre- sented to the court for its approval as directed by the decree, .after which the bond is filed. Frequently a corporation becomes surety. If personal security is offered the surety must own real estate in the county. It is not necessary to advertise the appointment. ''Within a reasonable time an inventory and appraise- rment should be filed. This is not always done, but for the protection of the receiver it should be filed. The practice is to present a petition for the appointment of appraisers. If those in possession of the property refuse to surrender it to the custody of the receiver, it is a contempt of court, and upon proper application therefor the court will issue an attachment. The practice is explained in the Chapter on ■" Injunctions." At the proper time the receiver should file his account. The account is referred to a master, who audits the ac- count and reports to the court the facts and a schedule of distribution. The duties of the master are similar to those of an auditor. He should duly advertise his first meeting and proceed as in other equity cases. The proceedings before him conform to the usual prac- tice in equity cases. It may here be stated that if, in the course of his duties, the receiver is in doubt, he should submit the question to 1 counsel for advice. If it be necessary, a petition should be presented to the liECETVERS. 387 ■court setting forth the facts and attaching a form of decree. The decree will be a protection. The receiver is entitled to apply to the court at any time, and in the execution of contracts, instruments (except those of a simple nature), settling suits, claims, etc., issuing receiver's certificates, etc., etc., a decree should be secured in advance. § 5591. Form of Petition by Receiver for the Appointment of Appraisers, and Decree. In the Court of Common Pleas op County. C. P. 1 V. \ Term, . No. O. F. G. J The petition of J. T. respectfully sets forth : That by decree of this court your petitioner was on the day of January 18 , appointed receiver of the defendant , and pur- suant thereto has taken charge of its estate and effects, and has assumed tlie discharge of his duty as receiver. That said property consists of real and personal estate, and that he has made a full and detailed inventory of the same, so far as has come to his linowledge. Your petitioner believes that it is necessary and of advantage to all parties interested in said estate to have said property and effects valued and appraised, and he therefore prays your honorable court to appoint two disinterested persons to value and appraise all the estate and effects of said defendant which have come into the custody and possession of your petitioner. And he will ever, etc. (Signature of petitioner.) City of Philadelphia, State of Pennsylvania. Before me, the subscriber, a notary public in and for said State, resid- ing in Philadelphia, personally appeared J. T., receiver aforesaid, who, being duly sworn according to law, says that the statements contained in the foregoing petition are true and correct. -Sworn to and subscribed this \ day of March, 1893. \ J. T. L. M., ) Notary Public. And now, March , 18 , upon consideration of the matters ia 388 EECEIVEES. the subjoined petition contained, A. B. and C. D. are appointed appraisers of the estate and effects of O. F. G., in the custody of J. T., receiver. (Signature of judge.) § 5592. Form of Inventory and Appraisement — Oath. State of Pennsylvania, ss. : City op Philadelphia. Before me, a notary public in and for said State, personally appeared A. B. and C. D. , who being by me duly sworn according to law, say, that as appraisers of the estate and effects of O. F. G., in the possession of J. T., receiver thereof, they will discharge their duties with fidelity and care. Sworn to and subscribed this ^ . -r, day of March, 18 . h ^' ^' L. M., ) ^- ^■ Notary Public. Inventory and Appraisement of the Estate and Effects of the 0. F. G. in the Possession of J. T., Receiver. (Here set forth the property and the value of each part.) (The appraisers should sign at the end.) City of Philadelphia, State op Pennsylvania. Before me, the subscriber, personally appeared J. T., receiver afore- said, who, being by me duly sworn, deposes and says that the foregoing is a full and complete inventory of the estate and effects of said O. F. G., of which he is receiver, which have come into the possession and custody of said, receiver. Sworn to and subscribed before ^ me, this day of March, I J. T. 18 . L. M., ) Notary Public. § 5593. Proceedings Subsequent to Interlocutory Motion. The suit proceeds as in other equity cases. This is fully sketched in the Chapter on " Injunctions." It may be that the sole purpose of the bill is the appointment of a receiver, and that this is the sole relief needed. If this be so, it is unnecessary to proceed to final decree. EECEIVEES. 389 § 5594. When Appointed in One State, Receivers will be Recognized in Another State and in the U. S. Courts. The practice is for the other jurisdiction to appoint the same receiver on petition. But his claims must not conflict Mrith citizens of the second State. Tlie appointment of a receiver in one State is recognized, as a matter of comity, in others, unless his claim come in conflict with that of the citizens of the State in vi'-hich the proceedings arise. Filley v. Organ Co., 3 Kulp, 396 (1885) ; BaghijY. R. B. Co., 86 Pa. St., 291 (1878); Hintermeister V. Organ Co., 3 Kulp, 490 (1885) ; Williams y. Hintermeis- ter, Id., 499 (1885). In the latter case, the United States Circuit Court appointed an ancillary receiver. A distinction is made between involuntary transfers of property, such as work by operation of law, as foreign bankrupt and insolvent laws, and voluntary conveyances. The distinction is based upon the reason that a voluntary transfer, if valid where made, ought generally to be valid everywhere, being the exercise of the personal right of the owner to dispose of his own, while an assignment by opera- tion of law has no legal operation out of the State in which the law was passed. An involuntary transfer of mov- able property abroad, by process at home, does not divest the title to the prejudice of creditors domiciled at the place of the actual situs, but a voluntary transfer by the act of the owner divests it everywhere. The legal situs follows the domicil of the owner, and the law of the actual situs protects the claims of the domiciled creditors there only against transfers by operation of law. Sjjeed v. May, 17 Pa. St. , 94 (1851). And this rule applies to the appointment of receivers whose functions and powers are limited to the territorial jurisdiction of the court appointing them, except so far as, by the doctrine of comity, the State courts lend their aid in instituting and maintaining suits, when not in conflict with the rights of their own citizens. The appoint- ment of a receiver in one State is now recognized, as a matter of comit}^ in others, unless his claims come in con- flict with those citizens of the State in which the proceed- 390 RECEIVBLIS. ings arise. High on Eeceivers, § il ; Rink v. St. John, 29' Barb., 585 (1859). Mayer, P. J., in Clark Co. v. Supply- Co., 3 Dist. Eep., 518(1894). In this case the claims of a receiver appointed in New Jersey were postponed to an attachment issued by citizens of New York ; such citizens, under the Constitution of the United States, are entitled to all the privileges and immunities of citizens of this State. In Bagby v. R. R. Co., 86 Pa. St., 291 (18Y8), there was a conflict between a Virginia receiver and citizens of that State who had issued a foreign attachment. The receiver's claim to the fund was allowed upon the ground that the decree of the Virginia court appointing the receiver was binding upon all citizens of that State. A receiver was appointed by the Court of Chancery of Tennessee, of the goods and effects of B., one of its citizens. Subsequently, an attachment was issued by a citizen of Kentucky, against moneys of B. in the hands of a citizen of Pennsylvania. It was held that the attaching creditor was entitled to the money as against the receiver. Warren V. Bank, 7 Phila. 156 (1869). A receiver cannot sue, in a foreign jurisdiction, for the property of the debtor. Where there is an injunction restraining such debtor from disposing of his property, part of which is out of the jurisdiction of the court, obedience to the injunction may be compelled by coercing the person of the debtor, and thereby oblige him either to bring the property in dispute within the jurisdiction of the court, or to execute a transfer or conveyance sufficient to vest the title and possession of such property in the receiver, accord- ing to the lex loci ret sites. Booth v. Clark, 17 Howard (U. S.), 322 (1854). In Hurd v. City of Elizabeth, 41 N. J. Law Eeports, 1 (1879), it was said that Booth v. Clark belonged to a train of decisions involving a controversy between the receiver and creditors of the person whose property had been placed under the control of the receiver, and it was decided that the correct rule was to the effect that a receiver cannot sue, or otherwise exercise his functions, in a foreign jurisdic- EECEIVEES. 391 tion, -whenever such acts, if sanctioned, would interfere with the pohcy established by law in such foreign jurisdic- tion. But that after protecting its own citizens and laws, the officer of the foreign tribunal should be acknowledged and aided. Tlie power of a Pennsylvania court to dispose of assets coming into the hands of a receiver appointed by it is a. matter of judicial discretion. Where the assets of a foreign corporation in the posses- sion of a receiver here, are claimed by the foreign receiver, . the right of domestic creditors not being involved, the court will remit such assets to the foreign receiver for distribu- tion. Resident members of a foreign corporation are not domestic creditors. They claim under the corporation and not against it. Kean v. Iron Hall, 3 Dist. Rep., 323 (1894), § 5595. General Authority of and Kestrietions upon Receivers. Although this work is only designed as a guide in mat- ters of Practice, the following suggestions gleaned from text-books and cases may not be out of place : Receivers are simply officers of the court appointing them, and should do no act save as directed. § 5596. Their Powers are only Co-extensive with the Juris- diction of the Court which Appoints them. They can declare no dividends, and can make no dis- bursements except as ordered. A receiver is not an assignee nor the agent of either party. If a receiver be ordered to pay to A. , he cannot deduct a personal claim he has against A. As a general rule he cannot repair or improve without obtaining leave from the court. If he should do so the court may refer to a master the question of the allowance of the expenditures as reasonable and for the lasting bene- fit of the estate. Where a receiver of real property has a general direction to manage it, he may obtain leave of the master without special application to the court. A receiver is entitled to instruction of the court and to counsel. The appointment of a receiver cannot affect rights under a prior and good contract. 392 EECBIYEBS. Where a railroad company has no power to lease its unexercised franchises, its lessee cannot put in force unexe- cuted franchises of construction. Nor can the lessee's re- ceiver do so. Lewis v. R. B. Co., 39 Leg. Int., 13 (1881). (See the note at the conclusion of opinion of Ross, P. J.) He cannot bring summary proceedings against a tenant nor commence any suit withoLit authority. Chase v. Good- ale, 2 Luzerne Law Times (N. S.), 107 (1880). The receiver is entitled to the possession of firm papers in the hands of the partners and of third parties. Rusliton V. Harrington, 1 W. N., 79 (1874). The authority of a partnership receiver is conferred by law, and is not, like that of a voluntary assignee, derived from the appointment of the parties. The receiver succeeds to the equitable rights and remedies of the firm, as well as to the legal title of the partners as joint tenants. He can therefore contest a fraudulent sale by one of the partners, before the receivership. Wallace v. Yeager, 4 Phila., 251 (1861). § 5597. Federal Receiver to Operate Property according to Law of State where Located. The Act of Congress apiDroved August 13, 1888, Chap. 866, § 2 (supplement to R. S. U. S., 1S74-1S91, p. 613), pro- vides that a Federal receiver shall manage and operate property in his possession, "according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof." Wilfull violation of this section is declared to be a misde- meanor. § 5598. Liability of Receiver. He can only distribute as directed. Jordan v. BlaJcely, Vo Lancaster Bar, 99 (1881). He must follow the decree, and is liable for loss if he de- part from it, though in good faith and under advice. Mc- Ca/j V. Black, 36 Leg. Int., 471 (1879), affirmed in Black's Appeal, 38 Id., 441 (1881). KECEIVEKS. 39.3 He will not be punished for delay occasioned by request; of the partners. If at request of all and by advice, he continues business at a loss, he is not liable. He is entitled to a credit for the storage and insurance of articles he could not sell ; Mc- DowelVs Appeal, 4 Pennypacker, 384 (1884) ; he is not liable for accounts a reliable agency could not collect. Ibid. The following may be regarded without citation as ac- c'-'pted : r 5399. General Principles touching Liability of Eeeeivers. They are liable, of course, to the court making the appoint- :)ient, and generally not to another court. They are responsi- ble for improper payments, for fraud or negligence resulting in loss to property in their possession, for rent of premises leased before their appointment if they elect to take posses- sion or do something equivalent thereto, for loss of moneys deposited in their private account or to their private gain, ■or in such manner as to be beyond their exclusive control, for employing the trust property in private business, for forcibly taking possession of property without authority, for breach of duty as common carriers in another State, even in the courts of that State, and an administrator of a deceased receiver who accounts for receipts by his decedent may be ordered to pay over the amount due. Eeeeivers are liable officially (leave of the court to sue being first ob- tained) for injuries sustained by negligent management of a road. In Meara's Adinr. v. Holbrook, 20 Ohio, 137 (1870), this principle was applied in favor of an employee. This liability is not personal. They are also liable officially for negligence as common carriers. Blimientlial v. Brainerd, 38 Vt., 402 (1866). Where the receiver, by a complication of suits, is unable to pay out the funds in his hands, and there is no finding that he has used the money personally, he cannot be din.rg'ed with interest. Wallace's Appeal, 3 W. N., 468 .V i'<^ceiver is liable for his failure to invest funds at int'-ji-vst ii6 per decree. Hicks v. illcks, 3 Atk., 274 (1744). 394 BECEIVEES. A receiver's liability to others can only be enforced by suit brought by leave of the court. He is not liable person- ally on a covenant executed officially, nor for the failure of the drawer of bills of exchange who was in good credit when the receiver purchased, nor for rent of premises where the business was conducted, if the receiver were never possessed of any property on which the landlord had the right to distrain, nor for a loss arising from default of parties in interest. § 5600. The Enforcement of a Decree against a Receiver is by attachment. The order should be in the alternative to pay, or in default thereof to be attached. He is liable after the bill is dismissed for all funds, in his hands until finally discharged. § 5601. Good Faith. Always Required. Where a receiver was appointed at night and he sold at private sale early the next day, the proceeding was set aside and the appointment vacated. Simmons v. Wood, 45- How. Pr., 268 (18Y3). § 5602. Receivers' Certificates. The power of a court to authorize the issue of receivers' certificates to the impairment of existing prior liens has been the subject of grave discussion. On the one hand, a mort- gagee might reasonably argue that no power can disturb, postpone or dilute his security. On the other side, it might be contended that the danger of ruin, even to the mort- gagee, was so great, the peril to all so imminent, that if money could not be raised the property would fall to pieces. Like a ship on a reef or abandoned, the salvors might claim ahead of all others. In Wallace v. Loomis, 97 U. S., 146 (1877), a suit was brought against a railroad for foreclosure of a first mort- gage. Eeceivers were appointed, who were authorized to put the road in repair and to operate it, to complete any unfinished portions and to procure rolling stock, and for KEUEIVKKS. 395 these purposes to borrow money and issue certificates of indebtedness therefor, which should be a first Hen on the property, payable before certain first mortgage bonds. These certificates were afterwards ordered to be paid from the proceeds of the sale of the road befoi-e any of the first mortgage bonds or coupons were paid. Upon ajjpeal by a holder of second mortgage bonds who had become a party to the suit for foreclosure, Mr. Justice Bradley said : " The power of a court of equity to appoint managing receivers of such property as a railroad when taken under its charge as a trust fund for the payment of incumbrances, and to authorize such receivers to raise money necessary for the preservation and management of the property, and make the same chargeable as a lien thereon for its repay- ment, cannot at this day be seriously disputed. It is a part of that jurisdiction always exercised by thp court by which it is its duty to protect and preserve the trust funds, in its hands. It is undoubtedly a power to be exercised with great caution, and if possible with the consent or ac- quiesence of the parties interested in the fund." Wallace v. Loomis was followed iu Miltenherger v. Logansporf Railway Co. , lOnU. S., 2S(> (lSs2.), and in Union- Trust Co. V. Illinois Midland Co., 117 U. R., 431(188.5). In the latter case Mr. Justice Blatchpord said : " Property subject to liens and claims and debts, of various characters and ranks, which is brought within the cognizance of a court of equity for administration, and conversion into money, and distribution, is a trust fund. It is to be preserved for those entitled to it. This must be done by the hands of the court, through officers. The character of the property gives character to- the particular species of preservation which it requires. Unimproved land may lie idle, with only payment of taxes. Improved property should be rented. Movable property that is not perishable may be locked up and kept, but if perishable, it must be sold, by way of preservation. A railroad, and its appurtenances, is a peculiar species of property. Xot only will its structures deteriorate and decay and perish if not cared for and kept up, but its busi- "396 EECEIVBES. ness and goodwill will pass away if it is not run and kept in good order. Moreover, a railroad is a matter of public concern. The franchises and rights of the corporation which constructed it were given not merely for private gain to the corporators, but to furnish a public highway ; and all persons who deal with the corporation as creditors or holders of its obligations must necessarily be held to do so in the view, that, if it falls into insolvency and its affairs come into a court of equity for adjustment, involving the transfer of its franchises and property, by a sale, into other hands, "to have the purposes of its creation still carried out, the -court, while in charge of the property, has the power, and, under some circumstances, it may be its duty, to make such repairs as are necessary to keep the road and its structures in a safe and proper condition to serve the public. Its power to do this does not depend on consent, nor on prior notice. Consent is desirable, but is seldom practicable, where the debts exceed the value of the property. Though prior notice to persons interested, by notifying them as parties, first requiring them to be made parties if they are not, is generally the better way, yet many circumstances may be judically equivalent to prior notice. A full oppor- tunity to be heard, on evidence, as to the propriety of the expenditures and of making them a first lien, is judicially equivalent. The receiver, and those lending money to him on certificates issued on orders made without prior notice to parties interested, take the risk of the final action of the court in regard to the loans. The court always retains control of the matter, its records are accessible to lenders and subsequent holders, and the certificates are not negoti- able instruments." In Beach on Eeceivers, § STi), it is said : " When a receiver of the property of a railroad company has been appointed, pending the foreclosure of a mortgage upon the road, it sometimes may occur that, in order to the proper preservation of the property, and the regular and efficient management of the trust while in the receiver's hands, it is necessary for him to use money beyond the •current income. In such a case, upon a proper application, EECEIVEllS. 397' it is usual for the court to authorize him to borrow money upon the credit of the property. The negotiation of these loans has given rise, within recent years, to a comparatively new form of security, known as a receiver's certificate. This may be defined to be a non-negotiable evidence of debt, or debenture, issued by authority of a court of chancery, as . a first lien upon the property of a debtor corporation in the hands of a receiver. Within the past twelve or fifteen years these certificates, to the amount of many millions of dollars, have been issued, and the courts are constantlj^ authorizing the further issue of them, ostensibly for the preservation of the property and in the interest of the bondholders, but it is believed, in a majority of the cases in which they are issued, to the hindrance and delay of a prompt foreclosure, to the impairment of the bondholders' security, and to the scandal of the courts of eqtiity." The same text writer says (§ 380) : " It is clear that the courts of chancery in this country will recognize the receiver's right, in a proper case, to issue these certificates, but * * * the power is regarded a dangerous one, and one very likely to be abused, and, in consequence, to be exercised sparingly, and with scrupulous regard to the rights of the creditors. Otherwise, it is merely a license to do mischief."' The general principles applicable to the issuance of receivers' certificates seem to be, that they cannot be issued for any purpose not necessary for the preservation of the^ property. Yet the decree authorizing their issue is con- clusive as to questions of propriety upon all persons inter- ested, who have had their day in court, or who, having had an opportunity to be heard, have not objected. The court authorizing certificates luill direct their pay- ment. Neafie's Appeal, 22 W. N., 31 (1888); Banking Association v. Shipbuilding Co., 19 W. N., 471 (188(3). § 5603. The Surety of any Receiver, etc., may Require the Filing of Statements exhibiting the Manner of the Investment of the Trust Funds— If Investment Im- proper or Insecure, Receiver may be Removed. The Act of June 3, 1893 (P. L., 273), provides : S98 EECEIVEES. That in case any surety or sureties, or the representatives of any surety ■or sureties upon the bond of any trustee, committee, guardian, assignee, receiver, administrator, executor, or other person liaving trust funds in his hands, or any person interested in the trust, shall apply to the trustee, committee, guardian, assignee, receiver, administrator, executor, or other person having trust funds in his hands, for a complete and detailed state- ment of the nature and character of the securities in which the said trust funds are invested, and the said trustee, committee, guardian, assignee, receiver, administrator, executor, or other person having trust funds in his hands, shall fail for the space of ten days to furnish such statement, or if .such statement having been furnished, it shall appear to the said surety or .sureties, or the representatives of said surety or sureties, or other persons interested in said trust, that the funds in the hands of the said trustee, committee, guardian, assignee, receiver, administrator, executor, or other person having trust funds in his hands, are badly invested so as to be likely to result in a loss to the trust, the said surety or sureties, or the representa- tives of said surety or sureties, or other person interested in the trust, may present a petition to the court having jurisdiction of said trust, praying that an order issue requiring the said trustee, committee, guardian, assignee, receiver, administrator, executor, or other person having trust funds in his hands, to file in said court a complete and detailed statement of the manner and securities in vrhich said trust funds are invested within twenty (20) days after service of said order, unless the time be enlarged by the court. Whereupon the said court shall issue said order, and if, upon such state- ment being filed, it shall appear to the court that the said trustee, commitee, guardian, assignee, receiver, administrator, executor, or other pereon having trust funds in his hands, has used the said trust funds himself, or has invested them in securities outside the State of Pennsylvania, or in securities which are likely to cause a loss to the trust, shall order a final account, and upon payment of the fund to his successor, or into court, the said court shall remove the said trustee, committee, guardian, assignee, receiver, administrator, executor, or other person having trust funds in his hands, unless in the case of investments of the fund outside of this State it shall appear to the court that such investments are safe and good, and not likely to result in a loss to the trust, in which case the court may by its decree approve such investments. This act shall apply to all trusts, whether the same be within the jurisdiction of the Orphans' Court, of Common Pleas, or of a court of equity. § 5604. Compensation of Receivers. The compensation of a receiver is not regulated, in Penn- sylvania, by any statute, but must be settled by the court having jurisdiction of his accounts. The amount of com- pensation depends upon the time and labor required for the proper performance of his duties, the value of which must 1)6 measured by ordinary business standards, and the ac- KECBIVEES. 399 tivity, integrity and dispatch with which the work of the receivership is conducted. Allowances claimed for expenses should be carefully scrutinized, and if unnecessary or ex- travagant, should be reduced or disallowed. Money in his hands for any considerable time should be invested under order of the court and not mixed with his private funds. Schwartz v. Oil Co., 153 Pa. St., 283 (1893). See PowelVs Estate, 163 Pa. St., 351 (1894.) g 5605. To Obtain Order of Sale of Realty, the evidence of necessity should be clear. Sales by a re- ceiver pass a title, which cannot be collaterally questioned, if the court had full jurisdiction. A railroad company whose property has been sold at a receiver's sale cannot recover in ejectment part of the road- bed located in one county, upon the ground that the sale was fraudulent. Railway Co. v. Railroad Co., 152 Pa. St., 96 (1892). § 5606. If the Order of Sale be Irregular, the only remedy is by application in that court. The court cannot direct a receiver to sell real estate so that the judgment creditors are deprived of their liens. In re Lebanon Brewing Co., 3 Dist. Eep., 260 (1893). § 5607. Conflrmation of Sale by Court should always be entered before deed made, if the author- ity to sell was subject to the order of the court. But where the direction does not contain those words, the irregularity of executing the deed before confirmation renders the transaction only voidable, and a subsequent con- firmation destroys the objection. § 5608. Sales of Personalty may be made in the manner approved by a sound discretion of the receiver. The court will not set aside the sale merely 400 EECEIVBES. because of a difference of opinion as to the best method of selling. Sales by process of execution and of decedent's landa work a conversion of the debtor's property to the creditor's use, and extinguish the interest-bearing property of the claims. But in case of a receiver's sale, the claims of cred- itors bear interest until allowed by the auditor. McCay v. Black, 14 Phila., 635 (18Y9). A receiver who makes a partial distribution under an in- terlocutory order should require a refunding bond in double the amount paid. Sykesy. Thornton, 152 Pa. St., 94 (1892). § 5609. Keceivers Cannot Purchase. The general rule which forbids a trustee to profit by the trust applies to receivers. They cannot purchase at their own sales. If they do so the purchase will be for the bene- fit of those in interest, and at their option will be voidable. This applies even to one who has ceased to be a receiver of the lands sold. The rule is entirely independent of any question of fraud. It applies although the sale is judicial under a decree against the receiver upon a title paramount to that of the cestui que trust. In Jewett v. Miller, 10 N. Y., 402 (1852), Johnson, J., said : When Miller purchased the premises in qtiestiou at the master's sale, December 1, 1842, he was a receiver of the Wayne County Bank. The sale was made on a foreclosure of a mortgage made by one Williams, then the owner of the premises, to Minot C. Morgan and others, dated October 15, 1838, which mortgage was assigned first to the Wayne County Bank by Morgan and others, and afterward by the bank to the people of the State of New York as collateral security for moneys borrowed by the bank fi-om the canal fund. After this last assignment, Williams sold the premises to the defendant, Cook, who gave his mortgage for the purchase-money, and this mortgage was assigned by AVilliams to the bank as security for a debt due by him to the bank. On the 28th of August 1841, as receiver of the Wayne County Bank, Miller procured a quit-claim deed of the premises from Cook and wife. Miller then as receiver had the right to redeem the mortgage assigned as security to the State, and also the general equity of redemption by the quit-claim from Cook and wife. Thus situated upon the foreclosure by the State, he became the purchaser of the premises. It is contended, on the part of defendant Miller, that his case is out of the gen- eral rule which forbids a trustee to purchase on his own account the trust property, upon the ground that the sale in this case was a judicial sale, KECEIVEKS. 401 made under a decree against the trustee, and based upon a title paramount to the title of the trustee, and to the interest of the cestuis que trust. That this is not the rule was adjudged in the case of Van Epps v. Van Epps, 9 Paige, 237; Iddings v. Bruen, 4 Saudf. Ch. E., 263. It is hardly possible to state the rule of equity too broadly or too strongly. It wUl not permit a trustee to subject himself to the temptation which arises out of the con- flict between the interest of a purchaser and the duty of a trustee. It ^as Miller's duty as receiver to make the property bring the largest possible price ; but as purchaser, this was not his interest. The rule is entirely in- dependent of the question whether in point of fact any fraud has intervened. It is to avoid the necessity of any such inquiry in which justice might be balked, that the rule takes so general a form. After the purchase by Miller, it follows that his cestuis que trust had the right either to demand a re-sale of the property, or to adopt his purchase as made for their benefit, subject of course, in the latter case, to his lien for advances. Slade v. Van Vechten, 11 Paige, 21." The sale may be set aside even after confirmation by the court. With consent of all parties and leave of the cornet a receiver may become a tenant. % 5610. Siiits By and Against Receivers. Where there is an attachment or execution prior to the receivership. Until the appointment has been perfected and the receiver is actually in possession, a creditor is not debarred from proceeding to execution. And if the prop- erty be already in the custody of the law under other pro- cess, proceeding with the execution is not a disturbance of the receiver's possession. Darling v. Transportation Co., 2 Kulp, 142 (1880). An attachment of property prior to the appointment may be proceeded with to judgment. Bank v. R. R. Co., 4 W. N., 264 (18T7). The appointment of a receiver for a corporation does not abate attachment proceedings instituted prior to the dissolution of the corporation. Hays v. Fire Insurance Co7npany, 99 Pa. St., 621 (1882). In Pickersgill v. Myers, 99 Pa. St., 602 (1882), an attachment was issued against an insurance company which subsequently dissolved under the Act of 1876, and a re- ceiver was appointed. Held, That such appointment did not dissolve the attachment, as under § 49 of the above act 26 402 EECEIVERS. the receiver had power to prosecute and defend suits. The plaintiff in the attachment could substitute the receiver and then proceed with his suit. 3 5611. How Suits Brought by Receiver. A receiver should sue in the name of the party for whom he was appointed, and should not bring the action in his own name. WiseJierY. Myers, 3 Dist. Rep., 687 (1894). The suit is frequently entitled : The Company, in the lands of A. B. , Eeceiver v. C. D. He should also obtain leave of the court which appointed him, befoi'e bringing suit. Wisener v. Myers (supra). It is usual and expedient, in all cases of receivership, to have the decree appointing the receiver recite his authority to " bring, prosecute and defend all suits at law or in equity which in his judgment may be necessary for the preservation and protection of the property and interests under his care and control. " The plaintiff's statement of claim should show his previous authority to sue. A receiver of a partnership cannot bring an action of trover in his own name against a person who had converted the firm's assets before the receiver's a{)pointment. He must sue in the name of the firm. Yeager v. Wallace, 44 Pa. St., 294 (1863). In that case Judge Strong said : "I do not find it ha^ ever been decided that a receiver can sue in his own name for any debt, claiixi or demand of a I)arty of whose effects he has been appointed receiver, or to recover the possession or control of any real estate or choses in action of such party, unless some statute has enabled him. He has always been regarded, not as having the legal right, but as a mere custodian to take charge of the property during a pending litigation. If possession bo withheld from him by the party whose property has been taken charge of by the court, delivery to the receiver is en- forced by attachment. If a third person, not a party to ,the proceedings in equity, withhold the property, suit may EECEIVERS. •il^-J be brought by the receiver with the consent of the court, but he must bring it in the name of him who has the legal right. * * * There is no act of Assembly in this State that gives to a receiver of a court of equity anything more than an equitable interest in the property or rights in action com- mitted to his charge, or which invests him with the legal ownership." But where the goods had come into the actual possession of the receiver, and he had sold them by leave of court, it ivas held that he could maintain an action in his own name for the purchase-money. Singerly v. Fox, '16 Pa. St., 112 (1874). Where the transaction is with the receiver, he should sue in his own name. Coal Co. v. Scliada, 11 W. K, 20 (1881). § 5612. Suits Against Seceivers — Previous Leave Necessary where Receivers Appointed by State Court. Leave of the proper court must first be obtained before bringing a suit against receivers. Barton v. Barbour, 104 U. S. Eep., 126 (1881) ; Anderson v. R. R. Co., 2 C. C. Eep., 402 (1886) ; Wert v. Kehii, Id., 405 (1886). In Commonwealth v. Young et al., 11 Phila., 606 (1876), a receiver was appointed of a rolling mill. Subsequently, and without leave of court, a replevin was issued for -certain property which was in the receiver's hands, which writ was execLited by tlie sheriff. A rule for an attachment against the sheriff and other parties to the writ of replevin, for contempt of court, was made absolute, Elwell, p. J., holding : (1) That the receiver's possession was the possession of the court ; (2) that any attempt to disturb sucli possession, without leave of the court, was a contempt ; (3) that the sheriff was not protected by the process in his hands, as it had not been issued by leave of court ; (4) that though the plaintiff in the replevin claimed title paramount to that of the receiver, yet, in order to as- sert that right, he must obtain the court's permission to proceed ; and (5) that the court would not only protect the receiver's lawful possession, against violence, but also against suits at law. 404 RBCBIVEES. In Bohinson v. Bailroad Co., QQ Pa. St., 160 (18T0), an execution against real estate in the hands of a receiver was set aside. § 5613. Federal Receivers may be Sued without Previous Leave of Court. The Act of Congress, approved Aug. 13, 1888, Chap. 3, § 3 (Supplement to E. S. U. S., 18Y1-1892, p. 614), provides : That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, vcithout the previous leave of the court in which such receiver or manager was appointed ; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as- the same shall be necessary to the ends of justice. § 5614. How Judgment in State Court Enforced Against Federal Receivers. A Judgment against a corporation obtained in a State court cannot be collected out of funds in the hands of a re- ceiver appointed by the U. S. court. Those funds are be- yond the jurisdiction of the State court. R. R. Co. v. Fitch, 20 Ind., 498 (1863). In such a case the plaintiff should petition the Federal court for leave to sue the receiver or for an order to pay the amount recovered. Ibid. In Thompson v. McCleary, 159 Pa. St., 189 (1893), an execution was issued against property of a corporation in the hands of a receiver, under a judgment against an agent of the corporation. It was claimed by the execution creditor that the corporation, by permitting the agent to do business in his own name, was estopped from claiming the goods. The execution was restrained. The appointment of a receiver will not prevent the settlement of an account against a railroad, in its name alone, for taxes on gross receipts due the State under th& RECEIVERS. 405 Act of June 7, 1879. B. R. Co. v. Comm., 104 Pa St 81 (1S83). The defendants cannot set up that the money demanded is not needed to pay the debts of the corporation, or that the latter had been engaged in an unlawful enterprise. If they owe the corporation they must pay the receiver. McCarty's Appeal, 110 Pa. St., 379 (1885). A partnership receiver need not be made a co-defendant in a suit against the firm upon a liability incurred before his appointment, unless he has a good defense to the claim. Seavey v. Jenkins, 15 W. N., 124 (1884). No action lies against a corporation for negligence after the appointment of receivers. The suit must be against them. Howard v. Railroad, 6 County Court Eep., 589 (1889). Payment under decree, although improvidently made, protects the receiver. Palmer v. Allen, 26 W. N., 614 (1890). If the order were obtained by mistake or fraud, the court may require payment back from the party receiving the fund. Ibid. § 5615. Service upon Receivers— Two Receivers— Statute of Limitations— Writ of Assistance. The Act of June 13, 1836, § 42, which relates to the serv- ice of summons upon corporations, was held not to include an action against receivers of an insolvent corporation for a tort committed by them in the management of its affairs. Street v. Keim (C. P. Luzerne Co.), 4 Kulp, 290 (1886). In Wert V. Keim, 2 C. C. Eep., 405 (1886), a contrary ruling was made by the Common Pleas of Northampton County, and service under that section was held good. See Lewis v. Seifert, 116 Pa. St., 628 (1887), which seems to establish, the right to serve the receivers in any place they may be found. When two receivers are appointed hy the same court at different times, the power of the second is subordinate to the first, and he is only entitled to act after the appoint- ment of the first is determined. ^406 KECBIVERS. As to the effect upon the Statute of Limitations of the appointment of a receiver. A payment by the receiver does not amount to an acknowledgment by the debtor to take the case out of the statute. Whitley v. Lowe, 2 DeG. & J., 704 (1858), affirming 25 Beav., 421 (1858). But the statute ceases to run in a court of equity in favor of a stranger. As to writ of assistance, see Chapter on "Executions," this book.